Victoria's Proposals for a 21st Century Legal System
At the time of delivering this speech, Mr Victor Perton was a Member of the Victorian Liberal Government and Chairman of the Law Reform Committee, which produced its Technology and the Law Report in May 1999. There has since been a change of Government in Victoria and Mr Perton is now Shadow Minister for Environment and Conservation, and Shadow Minister for Multimedia, in the Victorian Parliament.
How would you organise and administer a justice system if you were to devise a legal system today, given the historical context and politics surrounding the existing legal system? How would you build a legal system if you could disregard the anachronistic traditions that exclude the ordinary person from the legal system?
The Victorian Law Reform Committee saw this as the ideal starting point in looking at ways in which technology can aid the justice system. Technology as an enabler, gives us the opportunity to examine our processes and redesign them for the next millennium.
In 1968, Edward Kennedy had the unenviable task of giving his brother Robert's funeral eulogy. He said of his brother:
Some men see things as they are and say 'Why?' I dream of things that never were and say, 'Why not?'
I believe this encapsulates the approach adopted by the Committee in examining how technology can aid and change our legal system.
The Parliamentary Law Reform Committee spent eighteen months researching for this Report. We talked to over 700 people in our efforts to look at the opportunities that new technologies offered to improve efficiency in the legal system and increase access to justice. We tabled our Report in late May.
The report has received approval from a wide-ranging audience, from the Head of the Department of Justice Peter Harmsworth, who said: 'Trust your Committee's Report is getting a good airing, there is much in it to chew upon' - to international figures like Don Tapscott, author of The Digital Economy. Many of you at this conference have given us positive feedback. We have also had requests for copies of the report from organisations that we did not seek out like the European Court of Justice and the Israeli Institute of Democracy. The Report makes some far-reaching recommendations for change that, if implemented, will ensure Victoria has a more affordable, accessible and efficient legal system. From the outset, we realised that many of the dilemmas the Committee faced were not unique. The same issues occur the world over. As a result, we tried to synthesise the world's best practice uses of technology in justice systems and examine how these practices can be applied in Victoria. On a personal level, I was absolutely thrilled to be involved in the Report. I said in my Chairman's Foreword that it had been an 'adventure' for all of us on the Committee and its staff - being a conscious part of a whole new paradigm shift is probably something that doesn't happen every day.
I mentioned Don Tapscott above. I think the following words give us some context to the ideas behind the Report:
The New Economy
We are at the dawn of an Age of Networked Intelligence - an age that is giving birth to a new economy, a new politics, and a new society. Businesses will be transformed, governments will be renewed and individuals will be able to reinvent themselves - all with the help of information technology.
Don describes the essentials of the new global society which is both driven by and driving information technology. People and companies can now work and collaborate around the clock across the world. The new economy should generate a fundamental reconception of the role of government, the legal system and each professional group in society. It also requires an analysis of the different relationship that the citizen will enjoy with government, law and the global society in general.
The information economy brings new challenges for legislators that are more complex than ever. The answers and the issues are not clear and in many cases hard to identify. Technology moves faster than legislation. The employment of new technological tools has led to a whole host of regulatory problems, which our legal institutions and Governments may presently be rather ill equipped to address. At the June 1998 World Congress on Information Technology Baroness Thatcher said:
'The role of government, …seeing that [the Internet] can be used for good or bad, is to try to implement a proper legal framework in which the restraints we impose are clearly defined and justified on the grounds of public policy, and they can be put into practice effectively. Now that is easier said than done… First, there are uses … of the Internet, which although offensive to many people, could not be made illegal because there's not sufficient reason for so doing. There are things which you and I would call immoral. We would like to bound them. There's not sufficient ground for us to make [them] illegal, because that would be a constraint on freedom.
Second, as not all legislators are fully conversant with the Internet, their remedies are sometimes not directed to the specific misuse, but they tend to be of a wider, more general nature, not the specific fault which we wish to cut out. They cut out a whole class of things, and indeed make far too much illegal, which is wrong…
And the third difficulty, if you are trying to legislate for information technology, is it is many years some will say light years ahead of the capacity of law makers to comprehend and then address the problems.'
Recently I undertook a cyber course on Intellectual Property in the Digital Age, over the internet, through Harvard University. Something that Professor William Fisher Professor of Law, Harvard University, said in a draft article on the web "Theories of Intellectual Property", really summed up the situation lawmakers find themselves in:
Lawmakers - both legislators and judges - are confronted these days with many difficult questions involving rights to control information. How should intellectual-property rules be adapted for use on the internet? Should the creators of electronic databases be able to demand compensation from users or copyists? What degree of similarity between two plots or two fictional characters should be necessary to trigger a finding that one infringes the other? Should computer software be governed by copyright law, patent law, or a sui generis legal regime? Should we expand or contract intellectual-property protection for 'industrial designs' - the configurations of consumer products? Should time-sensitive information (e.g., sports scores, news, financial data) gathered by one party be shielded from copying by others? Many other, similar problems demand attention.
How much help to the lawmakers confronting such issues are the extant theories of intellectual property? Can one derive from those theories solutions to the problems of the day?
One implication of the division of theorists into contending camps is that a lawmaker will obtain no guidance whatsoever unless and until he selects one of the four approaches. In other words, he must decide at the threshold which of the four sets of premises he finds most persuasive. Assume that he has done so. He now finds himself surrounded by writers of the same philosophic orientation. Can he relax, listen, and learn what he should do?
The answer, regrettably, is no. Each of the four approaches proves incapable of generating determinate answers to specific questions. The reasons why vary, but none is able to tell lawmakers what to do.
This is part of the dilemma that we faced as a Committee and that lawmakers generally face today. Members of Parliament have high-speed internet access in the Chamber now. This means that not only can humorous (and some not-so-humorous) interjections can now be emailed across the floor - but more seriously, knowledge via the internet and from the outside world is now at our fingertips. It must be stressed however, that Victorian Parliamentarians are taking monumental steps towards understanding and resolving some of these issues. For instance, the Parliamentarians of Victoria have taken to laptops, email, the web and the legislative issues of the networked world with alacrity. The Victorian Government was also the first to appoint a Minister for Multimedia. The Government has taken a national lead in e-commerce issues and has introduced data protection legislation.
The adoption of new technologies and practices can ensure that people become genuine citizens of the world. As I said in the Foreword and in the video clip,
The Committee has met and observed people who see the changes as threatening their existing power and who have tried to obstruct change that could not only benefit their own organisation or institution but provide a benefit to the whole of society.
We met with, talked to and corresponded with people who can be classified as 'citizens of the world' in that they had a vision and understood ours. We also met plenty of people from the other side of the spectrum, who were threatened by our outlook and who were, in fact, difficult and unhelpful. I heard Don Tapscott speak in the Parliament in October last year, at the Virtual Opportunities Congress. When he said that those with existing power would resist the redistribution of power - I didn't believe him. I thought it was hyperbole. But now I know it to be true.
Organisational and behavioural change combined with technology can empower the Australian government policy maker, politicians and professionals to enable them to be the best in the world. I believe the impact of the new technologies will drive the lives and careers of most citizens in unimagined ways.
Our economy and society will be transformed by the changes wrought by the global information industry. Your children and grandchildren will be doing jobs not even in existence yet and using equipment not even imagined. Communications technology including videoconferencing, the World Wide Web and email is redefining our lives, as geographical and political barriers become increasingly irrelevant to the people of the world in their work, in their family life and in their interaction with friends.
As I've been saying for some time now, I believe communities of interest will develop - and in fact have developed - in which the best in the world will flower like never before and the average will reach new heights never dreamed of before.
In my own working life, the changes have been dramatic. Just a few years ago, we did a Regulatory Efficiency Report. We called for submissions the usual way - through the newspapers. No response. Then we thought we'd try something different - and advertise through the Internet. Within a few days, we'd received emails from all over the world - offering to help and empathising with our lack of response. Now, the Victorian Law Reform Committee has been asked by the Malaysian Bar Association to organise the Commonwealth Law Reform Agency Conference. I think this illustrates our efforts in getting the message in this Report across - globally. On a personal level, I get a thrill from receiving emails from local constituents asking for help. I also am delighted whenever a web-surfer overseas takes the time to contact me through my website, to say 'hey, your homepage is great', or to tell me they've added a link to my site to their own. My mother, who is 70, has created her own global village through her teaching of integral yoga.
With the changing nature of the concept of a 'community', the role of governments in governing the community becomes increasingly difficult. Computer networking raises fundamental issues on the structure of governmental organisations and the role of governance. As information searching and sharing becomes increasingly easy at a very low cost, issues such as privacy, intellectual property, equitable access to information, freedom of speech, sovereignty, place of business and other fundamentals of governance require redefinition.
With globalism, privatisation and the online environment, the boundaries of government and private sector activity become increasingly blurred around the world. Radical new ways of governing need to be explored in a new found collaboration between government and business. As the role of government changes, there needs to be caution exercised in merely applying technology to existing systems. There needs to be caution exercised in the conversion of bad existing systems into electronic systems. Rather, government functions need first to be redefined and then technological systems constructed to support the structure.
Recently I joined the Research Board of the Alliance for Converging Technologies, an international think tank and research and consulting firm that focuses on achieving competitive advantage and new modes of governance in the digital economy. The Research Board consists of nine people, including Joseph Nye - we have on-line contact and aim to meet physically occasionally. It is going to be a huge project and I welcome any suggestions or contributions you may have.
Technology provides governments with the opportunity to consider the fundamentals of governance for the next millennium in a bipartisan fashion. Reengineering government processes with the aim to improve efficiency and provide citizens with seamless access to services must be a priority. The future lies in networked government services that reside on an electronic infrastructure enabling the public to access services wherever and whenever required. Technology offers a variety of new means to integrate various systems and can be ideally utilised to combine government services so as to increase Government efficiency as well as enabling an unprecedented level of communication and information sharing.
Rapid advances in information technology put pressure on governments to react and respond more quickly than has ever been required in the past. Global information networks are being constructed by a variety of interconnected technologies and continue to become more sophisticated. As a consequence, business and the public are demanding better government service delivery through a variety of access points including kiosks, television, PCs and telephones.
The Victorian Government has shown leadership in setting the framework for a knowledge-based economy. A fundamental strategy has been electronic service delivery whereby all Victorians have seamless electronic access to all government services by the year 2001. The Government launched its electronic service delivery project, Maxi, eighteen months ago. Maxi now delivers 7 day a week, 24 hour a day government to Victoria. Maxi is an IT infrastructure that provides government and private agencies with a variety of electronic delivery channels to provide services directly to clients. Maxi utilises a 'customer-centric' focus whereby people are able to easily negotiate a particular 'life event' that requires contact with numerous government departments. The citizen merely has to identify the service they desire without requiring knowledge of the Government agency responsible for providing the service. The goal of the Government is to create the simple appearance of one face for all public transactions. Maxi services include user authentication and financial transaction capabilities.
The system is accessible through the Internet, an interactive voice response (IVR) system and kiosks are currently operational at locations throughout rural and metropolitan Victoria. Victorians can use Maxi to carry out over 30 government transactions, including vehicle and driver license registration, ordering birth certificates, obtaining driver history reports, notifying government agencies of a change of address and paying rates and other bills. At present two channels link to the Maxi Electronic Service Delivery system, the Business Channel, the Land Channel and health services. Transport and education and emergency services channels are all in the process of being connected to Maxi.
While the Victorian Government has clearly shown leadership and innovation in its use of IT and in the establishment of infrastructure to take the state into the next millennium, the legal system has lagged behind. The Committee found that even on a whole of government basis, the Victorian Department of Justice was behind other departments in its understanding and use of new technologies to deliver services. The Committee recommended the establishment of a Legal Channel as part of the Maxi government electronic service delivery mechanism. It also recommended that officers of the department of justice be extensively trained in the use of new technologies to enable greater communication across government.
In its report, the Committee expressed the view that the rapid developments in technology offer the opportunity to transform the justice system into an accessible, inexpensive, transparent and efficient system, which is responsive to the needs of the community. The effective use of IT in the justice system can change entirely the relationship between courts, governments and the public. While historically the legal system has been renowned for its elitism, complex, inaccessibility and impenetrability to the citizen, technology can ensure that everyday legal issues are processed without the need for expensive legal advice or long court processes. At the same time, rather than intimidate the profession, IT offers lawyers the opportunity to be world leaders in their chosen field and offers judges access to the best resources possible to make appropriate decisions.
The Committee's vision is for cross-jurisdictional integrated service delivery for all Victorians. It involves an integrated justice system in which the citizen has seamless access to information about the system and to the organisations within the system. The Committee's vision is for technology to be utilised to make government processes more transparent, to allow citizens seamless access to all government services and for the Victorian Government to lead by example in its use of information technology. The public will have access to a one-stop-electronic shop that will provide them with government certified legal information that takes them through their legal problem, offers them options for electronic or personal legal advice and electronic lodgement of complaints or writs.
The following case study provides a practical possibility that arises out of the Committee's vision.
You would have heard or read about the notorious problems the Government has had with Intergraph. But what Intergraph does, is map every emergency call in Victoria. Its judicious use means that police resources are more evenly provided. What our visionary head of the Justice Department, Peter Harmsworth says, has a lot of merit. He says we should use the Intergraph system as a model for putting up a Health Database as well - so that the health histories of patients can be found more easily. And in a similar fashion, instead of just allocating police resources on this basis - social workers and education officers could be distributed to areas where there are high levels of drug abuse and school truancies. For example, Smith Street in Collingwood is infamous as a drug haven for addicts. Peter Harmsworth's vision would mean we could have police and drug counsellors on the spot, day and night - an integrated delivery of resources.
The biggest impediments to achieving our vision of accessible justice through the use of IT were cultural issues. Historically, rapid technological change has caused anxiety in some sectors of society. While resistance to change has been found in most societies during transitional periods, the information revolution challenges our society with accelerated change. The industrial revolution was characterised by upheaval and those that adopted new technologies prospered and survived while those that resisted it were left behind. Two hundred years later, with more sophisticated understandings of organisational change and psychology, there is no reason why government cannot intervene to minimise the numbers of people left behind. American President Bill Clinton put it thus in a recent speech
I believe in the Information Age the role of government is to empower people with the tools to make the most of their own lives, to tear down the barriers to that objective, and to create the conditions within which we can go forward together. Now, the answers to all the questions will not always be easy. But at least I want you to know that's how I think about this.
Cultural and organisational change issues can be dealt with sensitively and productively with the adoption of appropriate strategies, training and an understanding of human psychology. Change in the legal system, which is renowned for its inherent conservatism, is viewed by many as harder to achieve than in other fields, such as Government.
Organisations within the legal system have seen themselves as unique, separate and discrete agencies and have developed practices to support these views. The legacy of historical procedures and practices often combines with a sense of preserving the status quo that results in a deep resistance to change. The parallels in culture between parliament and courts can be marked with the same resistance to change and individualistic focus.
The Committee found that an important mechanism in overcoming fear and resistance to technological change is the identification of a 'champion' who can demonstrate the value of technology sensibly and assist in moving the whole organisation forward. The Victorian Government demonstrates the benefits of having an IT champion who is also the leader. Premier, the Hon Jeff Kennett, recently mandated the introduction of 'Parlynet' which is a statewide network for parliamentarians and their staff. The project required the resourcing and delivery of infrastructure and hardware to electorate offices around the state and laptops to all parliamentarians.
Parlynet has now been rolled out and has already had a dramatic impact with politicians walking into both houses of Parliament with the information resources of the world at their fingertips. As the system was rolled out to all members and their staff received extensive training. It has been a successful project that demonstrates that new technologies can be embraced by any organisation with the necessary resourcing and training. The consensus view is that the project would never have been implemented and all parliamentarians would never have had access to this range of advanced computing technology if it had not been mandated, resourced and supported from the top.
The business discipline of knowledge management offers a further mechanism for change management and can ensure that organisations move into the next century without losing sight of the importance of knowledge within people's minds. As Alan Weber has noted:
In the end, the location of the new economy is not in the technology, be it the microchip or the global telecommunications network. It is in the human mind.
Three major forces drive the adoption of knowledge management: globalisation, competition, and new technology. The underlying premise for this body of theory is that knowledge is a fundamental factor behind all the activities of an organisation. The central goal of knowledge management 'is to build and exploit intellectual capital effectively and gainfully'.
Computers can help transform data to information by indexing, cataloguing and making it easily retrievable. However, making knowledge retrievable often involves putting people in touch with one another. The availability of low cost computers and specifically networked computers creates the necessary infrastructure for knowledge exchange. E-mail, groupware, intranets, the Internet and networks all provide the technological tools to share knowledge regardless of distance. It is important to remember that these new technologies are merely the 'pipeline and storage system for knowledge exchange'. Cultural change within an organisation, which values and rewards the sharing of knowledge rather than the hoarding of knowledge is crucial for successful knowledge management. Knowledge really means nothing unless it is actually utilised.
While multinationals and global companies seem to have recognised the need for knowledge management and are instituting change in their organisations, this trend has yet to be reflected in the public sector.
To harvest the innovative ideas of Victorians, in order to develop better public policy, new collaborative relationships within the business arena and to invigorate our community sector. We should reduce the waste of ideas of people of good will in our community. Many ideas are wasted because:
- People don't feel that anyone will listen to their idea and therefore, they don't contribute them to the system.
- The people who receive them have no adequate means to process them - this includes the executive arm of government.
- The information is sent to the wrong people or is not communicated in the right way.
- There are inadequate systems in place to bring people together, to better formulate or implement their ideas.
In my view, harnessing the views of the constituent in the law making process is the best way of achieving good legislation. The views of constituents are necessary, as they are in a better position to decide how legislation will impact. It also reduces the perception that law-making is a closed industry which excludes the public. Community decision making and e-democracy are becoming more common in other countries and I think Australia could achieve it soon after the turn of the century.
If one had to choose a colour which describes the problems faced by government, it would be grey. There is clearly no right answer. Some of you may have seen the re-run of the Al Pacino movie a few Sunday nights ago, 'City Hall'. No need to worry if you can't recall the movie, as it certainly wasn't a box office hit. In one of the final scenes, the two protagonists of the story have a confrontation. The Pacino character, John Pappas (the popular Mayor of New York) says:
Okay, Pappy. Think of it as colours. There's black and there's white, and in between there's mostly grey. That's us. Now grey is a tough colour. Because it's not as simple as black and white. And for the media - certainly not as interesting. But - it's who we are.
The question and the challenge for the Victorian Government, is how do you change the culture of organisations so that knowledge is valued and appropriate technologies are utilised as enablers to exchange knowledge so that those organisations become the successful organisations of the future? A coordinated effort is required by government and the private sector to transform the public sector into a knowledge-based structure, ensuring government agencies survive the increasing pressures of globalisation and competition. The Committee recommended that the Government develop a whole of government knowledge management policy to promote a culture in the public sector of sharing information and consolidating existing organisational knowledge.
To achieve the Committee's vision of an integrated justice system and overcome the major cultural barriers, a series of recommendations were made.
For brevity's sake, I will take you through the ones that I consider important for effective change utilising IT. We found that legal institutions in general like to see themselves as unique and their work being beyond the capacity off-the-shelf software. A major and controversial recommendation to alleviate some of the problems with implementation of IT was to amalgamate the administration of courts and tribunals making it easier to implement common solutions and develop common standards. The administration would be controlled by a judicial council.
The Committee also recommended the establishment of a clearinghouse on law and technology that would serve to look at best practice software and management tools and suggest products to the profession and courts. It would also act as an online clearinghouse compiling accurate legal websites and promoting standards in the use of technology. The Committee envisaged a model like that established in the US in the form of the National Centre for State Courts and the Federal Judicial Centre. We also recommended increased training for the judiciary, making funding for technology in courts not dependent on other areas of funding or dependent on other areas of efficiency. The Committee also recommended a standard case management system and judicial support system for courts and that electronic filing be made a priority for all courts.
For some, our most exciting recommendations concern legal research on the Internet and electronic publishing. Having examined international best practice and Australian comparisons such as scaleplus, the Committee believed that AustLII should be the national electronic database of legal information. In keeping with this notion, the Committee recommended that Victoria fund AustLII to hold all its primary legal material.
Thirty-one years ago, Stanley Kubrick and Arthur C. Clarke gave us the indelible image of HAL, the archetype of the 'thinking computer' in the film of Clarke's 2001: A Space Odyssey. While HAL might appear to be a mere fantasy firmly in the realm of science fiction, the advances in artificial intelligence suggest otherwise. In May 1997, an IBM super computer called 'Deep Blue' defeated the then world chess champion, Gary Kasparov, in a chess match, much to Gary's chagrin. We now also have software packages capable of being loaded on to a home PC which translate speech into the written word. While these systems are fairly limited and do not yet understand language, it is merely a matter of time before this occurs.
Experts used to say that the game of chess required a high level of intelligence. But now, since the computer beat the player, they say it is merely a processing task. Therefore I think that the best definition of AI is 'a pursuit of computer science problems that have yet to be solved'. While it has been a much-maligned area because some early predictions were not borne out, it has come to touch on almost all areas of our lives. One clear example of the pervasiveness of AI has become is the use of statistical and adaptive techniques by financial institutions to maintain stock, bond, currency, commodity and other markets. AI has also been used fairly effectively in the area of robotics and where computers are utilised widely in assembly plants to do a limited range of tasks.
At the other end of the spectrum, the use of intelligent machines was perhaps best 'showcased' in the Gulf War with the US use of intelligent scanning by unmanned aircraft and weapons hitting targets though machine vision and pattern recognition.
Expert systems are a branch of AI research that are built to operate like a human expert so that it can provide expert answers to a range of questions in various disciplines. The benefits of artificial intelligence and expert systems in an area like law cannot be understated. AI can help with legislative drafting, intelligent checklists can facilitate accurate electronic lodgement of legal documents, and a range of decision support and legal information retrieval systems. In the absence of affordable access to legal information, expert systems can provide basic information and advice on everyday legal problems. An understanding and belief in AI does not mean advocating the replacement of people with machines nor is it desirable to remove the humanity and compassion that human decision-makers bring. Rather, AI can aid in providing consistent, equitable and affordable decision making in a range of disciplines, especially in the justice system. As with all aspects of technology, it is not an end in itself but rather should be used as a vehicle for achieving the desired ends.
Ultimately, the adoption and implementation of new technologies into traditional structures such as governments and courts gives us the opportunity to rethink historical practices and consider why we continue with them and how our organisations can remain relevant. It is a truism that technology is here to stay and as citizens get more comfortable with its use in their everyday lives, there will be increasing demands on governments to provide their services electronically. While the dawn of a new century and a new global economy can be daunting, it is also an exciting and challenging period for legislators around the world. It requires us to think outside our traditional mindsets in formulating solutions for the community.
Perhaps we should all take up the author Bryce Courtenay challenge to 'Dare (y)our genius to walk the wild unknown way'.
1. D Tapscott, The Digital Economy: Promise and Peril in the Age of Networked Intelligence, McGraw-Hill, New York, 1996, p. 2.
2. D Tapscott, The Digital Economy: Promise and Peril in the Age of Networked Intelligence, McGraw-Hill, New York, 1996, p. 2.
3. Electronic Industries Alliance Dinner J.W. Marriott Washington. D.C, 30 March 1999.
4. A Weber, quoted in T Davenport & L Prusak, Working Knowledge: How Organisations Manage What they Know, Harvard Business School Press, Boston, 1998, p. 1.
5. F Simoes, quoted in K Wigg, 'Introducing Knowledge Management into the Enterprise' in J. Liebowitz (ed) Knowledge Management Handbook, CRC Press, New York, 1999.
6. F Simoes , quoted in K Wigg, 'Introducing Knowledge Management into the Enterprise' in J. Liebowitz (ed) Knowledge Management Handbook, CRC Press, New York, 1999, p. 18.
7. Robotics is a branch of AI that aims to program computers to see and hear and react to other sensory stimuli. However, robots to date have difficulty in identifying objects based on appearance or feel and they still move and handle objects fairly clumsily.
This is a Conference Paper published on 29 February 2000.
Citation: Perton V, 'Victoria's Proposals for a 21st Century Legal System', Conference Paper, 2000 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/00-1/perton.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/austlii/perton/>