Raman, Padma --- "Towardis a 21st century legal system" [2000] ALRCRefJl 4; (2000) 76 Australian Law Reform Commission Reform Journal 19

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Reform Issue 76 Autumn 2000

This article appeared on pages 19 - 24 & 101 of the original journal.

Towards a 21^st Century Legal System

By Padma Raman*

How would you organise and administer a justice system if you were to devise one 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.

Around the globe, legal professionals strive to achieve justice systems that are affordable, accessible and efficient. In 1997 the Victorian Law Reform Committee began an inquiry into ways in which technology could improve the administration of justice and increase access to justice. Recognising the commonality of problems and the multitude of resources expended, the Committee tried to synthesise the world’s best practice uses of technology in justice systems and examine how these practices could be applied locally.

The Committee spent 18 months researching the area and talked to more than 700 people about the opportunities that new technologies offer the legal system. The report, Technology and the law, tabled in the Victorian state parliament in May 1999, looks at the changes wrought by the global information and technology industry and makes far-reaching recommendations for change. This article summarises the Committee’s main findings while focusing on two themes addressed in the report: the ways in which technology impacts on the legal profession and on access to justice.

The vision

The Technology and the law report puts forward the Committee’s vision for the ways in which technology can improve legal services in the short-term. Rapid developments in technology offer the opportunity to transform the justice system into an accessible, inexpensive, transparent and efficient system, which responds to the needs of the community. The effective use of information technology (IT) in the legal system can change entirely the relationship between courts, governments and the public. While historically the legal system has been renowned for its elitism, complexity, 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.

In the Technology and the law report, the Committee articulates a vision for cross-jurisdictional integrated legal service delivery for all Victorians, realised through the integration of courts’ administration and information systems and the enhancement of existing Internet interfaces. This would give the public access to a ‘one-stop electronic shop’, able to provide citizens with government certified legal information that takes them through their legal problem, offers them options for electronic or personal legal advice and, where appropriate, enables electronic lodgement of complaints or writs. Taking into account the diversity of the Victorian population, all on-line legal services would be available in a range of languages, via the Internet, at information kiosks, through call centres and, where personal service is required, at specialised centres.

The Committee believes that based on today’s technology it is possible to build a sophisticated IT system to support the administration of, and increase access to, justice. However, expert evidence received by the Committee during its inquiry confirmed that the adoption and effective use of technology does not rely on what technology can achieve. Even the development of the most sophisticated technological systems will not ensure that all persons involved in the legal system will use them effectively. Rather, it depends on organisational and cultural issues. It is these issues that must be addressed, to ensure technology is regarded as an aid and effective tool, rather than a threat to employees and the integrity of the legal system.

^{The modern legal system is a product of a long and celebrated history. Any radical change to this system will be difficult to achieve. In its report, the Committee highlights some of the cultural barriers to change. These include the historical factors, the adversarial nature of the legal system, the need for champions of IT within the various levels of the system and the fears that surround the use of IT. Several recommendations are made to help overcome these organisational and cultural barriers, including:}

• the establishment of a centralised government entity to coordinate and implement a centralised approach to the introduction of technology across government;

• the amalgamation of the administration and registry functions of all Victorian courts and tribunals;

• the establishment of a law and technology clearinghouse that collaborates internationally to promote best practice uses of new technologies;

• comprehensive training for judges and court administrators on the use of new technologies; and

• the development of protocols and standards for justice information systems adopting world’s best practice. The Victorian government should encourage other state and federal governments to adopt these protocols with the view to achieving compatibility and interactivity across systems.

Having articulated its vision and ways to overcome some of the cultural barriers to achieving its vision, the Committee addresses the impact of technology on governments and courts in detail. The main recommendations in these areas focus on the need for greater integration between existing systems, the need for uniform case management systems that facilitate electronic lodgement of documents, comprehensive judicial support systems and the need for practice notes in all jurisdictions to encourage the use of technology in courtrooms. However when considering the ways in which technology can improve efficiency, courts and governments cannot be examined in isolation. The predominant users of the legal system, namely lawyers, have to be receptive and feel capable of utilising technology in their own practices before the benefits of IT can be realised in the justice system.

Technology & the legal profession

The law is an information-based discipline, and the ability to access information electronically will have a dramatic impact on the legal profession. The Committee’s consultations suggested that the Australian legal profession – and indeed the legal profession in other parts of the world – has been left in the wake of technological advances. With globalisation and rapid developments in information technology, the practise of law, as we know it today, will change beyond recognition in the next decade. Information technology complements the clear trend towards the globalisation of law and legal practice. Lawyers will have to learn to use technology to their advantage and come to terms with their changing role if they wish to continue to survive in the information age. Lawyers will also have to develop new markets in the information economy to remain competitive. Some law firms have begun to develop products that provide high level information and advice on complex areas of law for non-legal managers.¹ In the Committee’s view, these types of products, and lawyers who are capable of looking at the future strategically in search of new markets, are likely to be the successes of the new millennium.

In the next decade, successful lawyers will no longer work in isolation or within the constraints of their firm. The internationalisation of business relationships and transactions has already meant that commercial lawyers can no longer merely specialise in one jurisdiction. This need to keep abreast of global developments in law can be achieved by international collaboration with the use of information technology. The global telecommunications infrastructure, groupware, Intranet and videoconferencing technologies will make interaction and collaboration between lawyers on an international level a reality. Physical structures and institutions will dematerialise into their electronic virtual equivalents and, as we are already witnessing, lawyers will effortlessly work in global teams regardless of location.²

The pressures of business and global economic reality combined with increased expectations of clients for better services make changes to the practise of law a necessity. There is a sense of general community dissatisfaction with the cost and increasing complexity of justice. Those who can afford a lawyer are acutely aware of the costs and time involved in resolving issues through traditional legal processes. Those who cannot afford lawyers are also increasing unhappy with the system.3

The Committee found that ordinary people increasingly find their lives affected by laws that they do not understand, cannot use to their advantage and cannot control when used against them. These people are looking for a better way, but to date they have not been happy with the available alternative. Dissatisfaction with the present system has not yet caused a revolution because of the perception that you must sacrifice the power of truth, as established by formal process, for affordability, simplicity and speed. When technology makes powerful new alternatives available, watch out!

Technology offers lawyers new solutions to the problems raised by the economics of practice and public dissatisfaction by ensuring that lawyers spend more of their time solving problems, rather than carrying out routine tasks that IT is capable of streamlining. Instead of being threatened by the power of new technology, lawyers need to utilise it to deliver better, cheaper services to ensure they remain relevant.

Law firms are adopting technology at greatly varying speeds. While there are a few firms that have embraced modern information technology, most have yet to fully capitalise on the benefits technology can offer. The Committee was concerned by some practices in law firms in relation to access to new technologies. For instance, many law firms provide access to the Internet only through the library and still have concerns relating to security and the ‘time wasted’ by employees. The Committee had contact with one firm that only provides Internet access to partners and articled clerks. While such practices are justified by firms on the basis of wasted time and security, in the context of modern organisations, the Committee believes this demonstrates a lack of understanding of the Internet.

The evidence received by the Committee suggests that professional legal bodies need to do more in assisting their constituents to adopt new technologies. Having recommended the establishment of a law and technology clearinghouse, the Committee believes that professional bodies need to collaborate with the clearinghouse to develop training programs and information on technology for the profession. This need is further emphasised in the context of the inevitable difficulties that small firms, sole practitioners and rural practitioners face in the transition to the information age.

Public access to law

Access to justice is a central tenet of the Australian legal system. One crucial aspect of access to justice is access to legal information. If citizens have access to accurate and simple legal information their options expand, thereby relieving some of the pressure on the system. Information technology offers governments and courts new opportunities to provide the community with free, simple information on law and inexpensive, easy access to dispute resolution. IT offers the opportunity to transform the legal system so that the average citizen can deal with it with confidence. The effective use of IT could mean that everyday legal concerns, which are not currently met because of the cost of lawyers and lack of information, could be easily catered for.

The terms of reference for the inquiry specifically required the Committee to consider the ways in which new technologies can increase access to justice. The Committee recognised that rapid developments in IT potentially create a division in society between the information rich and information poor and explored strategies to ensure that traditionally marginalised groups are not further disadvantaged by the adoption of technology in the legal system.

Information technology can deliver up-to-date information widely for very limited cost. In utilising IT to disseminate information, courts must be aware that a number of delivery mechanisms need to be considered because no single distribution vehicle will reach our diverse population.

Kiosks located in court buildings can provide a range of legal information, freeing up registry personnel from answering routine queries from members of the public. Kiosks comprise touch screens and a keyboard and can include payment facilities and printing capacity. Many of these systems use basic artificial intelligence to interact with users and guide them through the process of filling in the required forms. The Committee had the opportunity to observe and use a range of kiosks around the world. In evaluating various systems, it became apparent that kiosk technology is an intermediate step to make the interaction and accessibility of technology easy for the public. The natural progression of such technology is to remove the physical constraint of a kiosk by locating the content in cyberspace on an interactive web-site.

_{The Committee saw a very good example of such a system that did not rely on kiosks, but utilised touch screens on basic personal computers in conjunction with the Internet. The Fund for the City of New York has developed a touch screen system that guides a client through issues relating to domestic violence and public housing. The system asks a series of tick-box questions and automatically generates the relevant forms for lodgement. An important added feature of the system is that the citizen can complete the questions in their own language and have the forms printed out in English or their preferred language.}

_{The Committee believed that information kiosks in court foyers have the potential to increase the accessibility of courts. It recommended that the state government ensure that electronic information is available in all Victorian court and tribunal foyers.}

Internet

Most Australian courts now have a web presence. However, much of the information on these sites focuses on practitioners rather than the general public. All Victorian jurisdictions have their court lists, jurisdiction, history, and contacts available on the Internet.4 This material is currently founded on paper-based material available in courts and there has yet to be a clear rethinking of information service delivery over the Internet for the general public.

The Internet has already ensured that vast amounts of conventionally published material can be accessed on the web. While there is an increasing amount of legal information on the Internet, at present it consists mostly of primary materials that are not easily understood by the general public. However, more sophisticated forms of information delivery are being developed allowing for interactive applications whereby users can be taken through complex issues on a methodical question and answer basis.⁵ As the cost of information technology continues to decrease almost all private households will have some form of computer that connects them to the Internet, enabling them to conduct a range of business and financial transactions on-line.⁶ The web will become the ‘natural first port of call’ for information or guidance on almost any issue. Increasingly, business processes and trading functions will be conducted over the information superhighway.⁷ The development of these technologies and the continual emergence of smarter technologies will mean that, in time, users will be able to obtain ‘all but only’ the material and information they require.⁸

To achieve the Committee’s vision of legal services being delivered though a single point of access on the Internet, courts need to fundamentally rethink the way they present material to the public. Similarly, governments will have to play a much bigger role in coordinating and certifying primary legal information and provide resources needed to create freely accessible legal guides to help the public. In relation to the provision of free on-line primary legal information, the Committee found that the Australasian Legal Information Institute (AustLII)9 is internationally recognised as a pioneer in the field. AustLII has ensured that Australia has a larger amount of legal materials available on the Internet than any country. The Committee believes that rather than duplicate the effort, AustLII needs to be funded by states and the Commonwealth as the national repository of legislation and case law. The Committee recommended that the Victorian government provide modest and ongoing funding for AustLII as the national on-line resource of primary legal materials.

The Committee examined existing paper-based legal guides targeted at consumers, such as the Fitzroy Legal Handbook, and investigated why these guides are not available on-line. As most legal guides are self-funded publications produced by community organisations, placing the information on the Internet may reduce the demand for paper-based copies and thereby jeopardise the financial viability of producing the material. To ensure that such guides are available on the Internet, the Committee recommended that the state government, through the law and technology clearinghouse, evaluate legal guides, consider the viability of placing them on the Internet and fund and facilitate the publication of such guides where appropriate.

Multilingual access

The lack of legal information for Australians from non-English speaking backgrounds has been a significant issue for courts and governments. The 1996 census data demonstrates that 2.6 million Australians (16 per cent) aged five years and over speak a language other than English at home.¹⁰ The National Multicultural Advisory Council has found that some level of proficiency in English is essential for Australians from non-English speaking backgrounds to fully participate in society, enhance their sense of belonging and enjoy equity with other Australians.¹¹

_{As new technologies are employed by courts, governments and legal professionals, the impact of these technologies on non-English speaking background Australians must be considered. Many immigrants with low proficiency in English have difficulty in accessing services and are unlikely to be able to access services offered using new technologies. Ethnic communities need to feel that there is relevant information that they can access before they will use new technologies. While some courts do publish brochures in languages other than English, this has yet to become a feature on their web-sites. At the very least, courts that already have brochures in community languages should publish them on the Internet.}¹² _{The Committee} recommended that the Victorian government and all courts and tribunals provide existing multilingual information for the public on the Internet and aim to publish all future legal information for the public in community languages. The Committee also recommended that the government prioritise the development of a range of initiatives to ensure that traditionally marginalised groups including Indigenous people, people from non-English speaking backgrounds, the aged, disabled and women enjoy equal access to new technology.

Translation software

The Internet search engine operated by Alta Vista offers translation of web-sites over the Internet instantaneously to or from German, French, Italian, Spanish and Portuguese.¹³ At present, the software produces translations that are about 90 per cent accurate. However, translation software is likely to become more sophisticated and to include more of the community languages spoken in Australia. At the time of tabling the Technology and the law report, the Federal Court was the only court to link its site to the Alta Vista translation service.

The Committee found that there is a need to monitor developments in the area of translation software, and to trial software as it is released. Government information generally and legal information in particular should be available in a range of community languages. The Committee’s experience in America suggests that multilingual access is becoming a priority in the design of several expert systems. The Committee recommended that the government agency Multimedia Victoria, in conjunction with the Victorian Multicultural Affairs Commission, should identify, evaluate and obtain for implementation translation software appropriate to Victoria’s multicultural population.

Conclusion

Since tabling the report, the political landscape has changed in Victoria. Following the state election in September 1999, the Law Reform Committee was reconstituted with new members and a new Chairperson. The new Committee is eagerly awaiting the government’s response to the report into technology and law. The new members of the Committee recognise that in undertaking the inquiry, their predecessors had to grapple with some difficult issues and concepts and had to go through the challenging process of learning, understanding and using the technologies themselves. As the then Chairman noted in his introduction to the report, ‘the consensus arrived at by four Liberals, four Labor and one National Member of Parliament in producing (the) report is a guide to the new collaborations open to us in the new economy’.

*Padma Raman is the Director of Research at the Victorian Law Reform Committee.

Endnotes

1. For example, Elisabeth Broderick of Blake Dawson Waldron has developed a range of CD-ROMs that provide legal advice and information to middle managers. The Committee was very impressed with the products and believes that this represents a potential future market for many law firms.

2. A famous example often used to highlight such global collaboration is the Estate Mortgage case where lawyers involved in the case were spread across Australia and the UK. Technology was used effectively so that all involved could follow the progress of the case, regardless of where they were physically. They appeared in court in Victoria only when needed, saving valuable time. See also, Hardy, ‘Electronic Conferences: The Report of an Experiment’ (1993) 6 Harvard Journal of Law and Technology 213.

3. S Maher, ‘Law Futures, or, Will You Still Need Me, Will You Still Feed Me, When I’m Sixty Four?’ (1995) 1 Richmond Journal of Law and Technology 6, 11.

4. The Victorian Supreme Court is at <http://supremecourt.vic.gov.au/> the County Court is <http://www.countycourt.vic.gov.au> the Magistrates Court of Victoria web-site is

<http://www.magistratescourt.vic.gov.au> and the Victorian Civil and Administrative Tribunal is at <http://www.vcat.vic.gov.au> .

5. R Susskind The Future of Law: Facing the Challenges of Information Technology Clarendon Press Oxford 1998, xiv. In our daily lives, this means that on-line services will replace the agent. For example booking and arranging travel on-line is already a more efficient and easy way of organising holidays or business trips. Travel agents, as with other agents, are finding that they need to add value to the service they provide to continue to survive as an industry.

6. LT Olsson ‘Coming Ready or Not: Courts and Information Technology’ (1997) 71 Reform 10, 13.

7. R Susskind The Future of Law: Facing the Challenges of Information Technology Clarendon Press Oxford 1998, xiv.

8. ibid, xvii.

9. <http://www.austlii.edu.au>

10. Australian Bureau of Statistics Australia Now: A Statistical Profile AGPS Canberra 1996, see <http://www.abs.gov.au> .

11. National Multicultural Advisory Council Multicultural Australia—The Next Steps at

<http://www.liberal.org.au/ARCHIVES/MULTICULTURAL/settle7.htm> .

12. An easy method would be to publish PDF versions of the original pamphlets.

13. <http://babelfish.altavista.digital.com> .