Free Access to the Law: The Strange Case of New Zealand
Know Where Limited
Auckland, New Zealand
1. Why is New Zealand Strange?
Ever since 2 July 1984 when David Lange's Labour Party swept to power, New Zealand has undergone a radical programme of change. The impact of a new economic direction with its centre-right focus of government, a universally imposed goods and services tax, the stock market crash of '87, a new political system - MMP, a nuclear-free policy and the 'user-pays for almost everything' philosophy have meant New Zealanders have had to adopt numerous new attitudes and behaviours.
One quiet area of immense change, that has passed unnoticed by all but those whose daily working lives depend on it, has been the information revolution. Accustomed to having relatively open and free access to government departmental information, we now find ourselves paying for such access.
As with all Commonwealth jurisdictions, it is a basic principle of the New Zealand legal system that everyone is presumed to know the law. Ignorance of the law is no excuse. But first of all, you must be able to access it.
The privately owned Legislation Direct (formerly GP Legislation Services) has the current contract, until the early 2000s, to print the official paper copies of Acts of Parliament, Statutory Regulations, Bills, Orders, Rules, and the New Zealand Gazette. There is no official electronic legislation.
There is no current government initiative to provide free access to New Zealand legislative materials. At present the limited free access that is available is provided at the goodwill of two privately owned companies. Access is freely available in public libraries, though not widely known about, to both the annual (i.e. each year's statutes and regulations) and compiled legislation (i.e. annotated databases of statutes and regulations). Status Publishing Ltd provides this to the public libraries, free of charge, from its Internet website. However, Status' initiative is only available to the public via the public library system. Anyone with Internet access from other locations, for example their homes or offices, would not have 'free of charge' access to these databases. Legislation Direct, at its own initiative, is also providing free access to 'browse-only' annual legislation via their website on the Knowledge Basket.
The user-pays philosophy of the government is increasingly evident at the local government level. Many local authorities are now implementing policies under which public libraries are being asked to balance the 'public good' versus 'private good' of information provision. Only 87% of New Zealand's public library systems have Internet access, as at October 1998. Most libraries that offer this service are charging patrons for access because their limited library budgets cannot afford to bear the Internet-associated costs. Charges range from NZ$1 for 6 mins to NZ$1 for 12 mins. In addition, there is a 20c - 40c per page printing fee. Some libraries charge library members a reduced rate and non-library members a higher rate for Internet access. In libraries with heavy demand there is also a booking system and fee. This user-pays access seriously undermines any good intention by Status Publishing or Legislation Direct to provide free public Internet access to legislation.
Free access to the electronic legislative materials is simply not working. Indeed the only way the New Zealand public is able to freely access legislative materials is via a book. Government policy provides some hardcopy legislative materials to the public through 23 of the more than 250 public libraries under the Depository Library Scheme. However provision of the materials under this scheme does not include their annotation, which renders them of little value.
The Depository Library Scheme was established in 1971 and is co-ordinated by the National Library in Wellington. The scheme includes every major public library and aims to provide certain materials to libraries 'in the public interest'. It has two categories: 'full deposit' and 'basic deposit'. Many community libraries do not receive any deposit items.
If a member of the public wants access to the 'annotated' print statutes or regulations they have to hope that their local library is a member of the Depository Library Scheme, and is also able to pay for annotation. The library, from its own funding, must pay for the annotation service at an annual cost of NZ$1800 + gst for statutes and NZ$900+ gst for regulations.
If the library is not a Depository Library Scheme member, the member of the public will have to hope that it has sufficient financial resources to purchase a set of statutes and pay for their on-going maintenance and annotation. In the latter situation, the government makes no contribution to access at all.
With more and more local government expenditure being questioned by reluctant ratepayers, public libraries are seeking to recoup costs by charging for access to some resources including legislation. Ratepayers are funding this material for the good of the public and wider community as a whole. The public's need, therefore, may best be served by a timely printed and annotated paper product delivered by an enhanced and expanded Depository Library Scheme. To ensure that the public continues to have free access to the paper copy it is time to revisit the criteria set out in the Depository Library Scheme. It is only in this way that the official version of legislation will be available to the public.
There is no free access to New Zealand case law from the Department for Courts.
Comprehensive collections of electronic and hard copy judgments are only available on a user-pays basis, for example Status Publishing's Court of Appeal decisions database or the 'unreported judgments' service of Butterworths New Zealand. Even for unreported decisions in many cases it is cheaper and quicker to use privately owned companies who specialise in the supply of hard copy court decisions than it is to use the Court registries directly.
Internet access for New Zealand case law is limited. The only reported New Zealand case law presently available on the Internet is the New Zealand Law Reports, available through LEXIS, and Data Services' Environmental Law Reports of New Zealand, available from Lawsite.
New Zealand's legal process relies heavily upon unreported decisions. Access to the unreported decisions of the Court of Appeal and Privy Council is available via the Internet on a user-pays basis. These decisions are supplied to Status Publishing direct from the Court of Appeal, in electronic form. Brooker's has a selection of Court of Appeal decisions freely available on their website but it is not a comprehensive collection.
The New Zealand Department for Courts has acknowledged that its primary focus and role is in supporting the needs of the New Zealand judiciary. Internet-based access to court decisions is not part of even this limited focus at present, with the provision of decisions for the legal profession and the public remaining very much a secondary consideration.
In February 1998 I stated that:
'There does not appear to be a strategic plan for the development of an electronic common law. Neither the Court of Appeal nor the Department for Courts appears to want to address the issue. The New Zealand Law Society, the body charged with representing the legal profession, remains silent. There is no leadership.
NZ law librarians have consistently tried for 15 years to find some one or some body who would be interested in championing the cause. The increases in the District Court jurisdiction, together with other developments have made this cause a necessity rather than an optional extra.'
More than 12 months later the situation remains unchanged. Other jurisdictions have made considerable progress in placing electronic decisions on the Internet including the UK, a jurisdiction not usually reputed to have embraced the new technology with the same vigour as New Zealand.
Many attempts have been made by New Zealand-based publishers to procure High Court decisions in electronic form, with very little success. This being the case, with even the legal profession unable to obtain access to electronic High Court and District Court decisions, the likelihood of an AustLII-type database of free electronic case law for the public is light years away.
Sir Geoffrey Palmer, the former New Zealand Prime Minister and recognised public law specialist, agrees. In a recent radio interview he stated:
'If we look at the situation in case law, New Zealand is a common law country to a large extent. The courts are making decisions every day. Getting hold of the decisions is very difficult. Some of them come in the Law Reports and are published there, but quite a lot later. The access to the unreported judgments depends on commercial companies... Those accessibility problems to New Zealand case law are very serious….'[ 5]
It might be thought that this paper is leading towards a recommendation that free access to legislation and case law be resurrected. Not necessarily so. New Zealand has probably crossed the threshold of the 'free market' too completely now for an artificial subsidised service to be re-introduced.
Consider the following:
- New Zealand now operates on substantially free market principles. Government policies over the past 11 years have clearly stated that subsidies are not part of New Zealand's economic philosophy. As a result, initiatives from local information providers created a legal information market which has seen a rapid growth in electronic information products from a variety of suppliers. Any change in that market would adversely affect the benefits of competition, with the possibility that continued enhancement and product development would diminish.
- The present competition in the marketplace has resulted in highly competitive prices for legislation and case law products. In the New Zealand environment, free access to legislation and case law presently means that the taxpayer is subsidising the legal information needs of the legal profession, which does not itself provide a free service to the New Zealand public. Why should the legal profession be subsidised when the farmers, real estate agents, clothing and motor trade industries do not operate with subsidies?
- Any introduction of 'free' legislation and case law could well result in the demise of the small local suppliers. If they go, then the incentive for the larger, multi-national players to maintain offices in New Zealand may disappear and it is likely that they will retrench.
The present market provides both the legal profession and the public with a wide range of product choices. The provision of free access to electronic legislation and case law may risk destroying the finely balanced legal information market that exists in New Zealand.
A further concern is the question of the quality of the information.
Legal Information Institute initiatives in the US and Australia and access to decisions from the common law world appear to be desirable, until one considers the liability issues inherent in our modern 'look for fault' society. If a law firm relies upon a freely-sourced decision from an Internet site and the information is incorrect where does the liability rest? Who does it sue? There may well be difficult issues of contract law and tort in this grey field.
When information is provided free of charge there is a possibility of no timeliness, no reliability of its content and no competition driving the need to have a high quality information product.
In the New Zealand environment, it is possible that the profession would prefer in fact to rely on the value-added products that publishers have created, being able to rely upon the information and, if errors are found, knowing there is a contract upon which to sue.
So, is the New Zealand experience really that strange after all? We have good quality, legal information products that are reasonably priced, accessible to both the public and the profession.
The liberal in all of us will balk at the notion that there be a price on the access to law.
In truth, however, the law has never been free - simply paid for by the taxpayer. With the safe-guards of the legal aid system in place (to ensure that those prosecuted by the state do have access to the law), there is clearly a pragmatic argument that access to the law is already adequately protected. If, on top of this, excellence in quality and delivery can be achieved by the operation of the free market, perhaps New Zealand is not so strange, simply not yet understood.
This paper does not seek to provide a simple answer to this issue. Perhaps the quality of legal information can be maintained in a subsidised or free service, but it would be a serious mistake, in the New Zealand context, to now try to re-draw the battle-lines without in-depth consultation with all parties affected. In the end, quality of product must prevail, even if the sacrifice is a degree of free access.
1. Pittams, Grant. The extent of public access to the Internet in New Zealand's public libraries. Research Unit, National Library of New Zealand, 1999, page 4.
2. Informal research undertaken by the author, on the New Zealand Public Libraries email discussion list, May 1999.
3. Departmental Forecast report for the year ending 30 June 1999, Department for Courts, E.60FR(98).
4. Treadwell, Jane. Electronic New Zealand Case Law: the Options, Challenges to Tradition: Law and Knowledge for the New Millennium conference, Auckland, New Zealand, 1998.
5. Interview between Sir Geoffrey Palmer and Kim Hill on Nine to Noon, Public Radio Broadcast, National Radio, 20 October 1998.
This is a Conference Paper published on 29 February 2000.
Citation: Treadwell J, 'Free Access to the Law: The Strange Case of New Zealand', Conference Paper, 2000 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/00-1/treadwell.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/austlii/treadwell/>