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Computerisation of Law Resources |
WHAT’S IN A NAME?
New Zealand and the growth of free on-line legal information
It is well-established that existing LIIs perform an incubation function, to enable new LIIs to proliferate: PACLII and SAFLII are two examples. NZLII more resembles the teenager who wishes to move downstairs and have a separate entrance. This paper documents the two-year initiative towards establishing NZLII as an identity independent of its AUSTLII ‘parent’, and the inevitable growing pains which form an integral part of its ultimate challenge – to grow up sufficiently to leave home.
Introduction
As Margaret Greville pointed out, in her 2002 paper “An Introduction to New Zealand Law and Legal Information”:[1]
There is an inexorable drive towards the web in most areas of New Zealand legal information, and strong competition between publishers in this matter. Unfortunately this does not always lead to free sources of primary legal or secondary legal information. There is no ‘magic bullet’ - no single web site where you can hope to pick up New Zealand legal information for free. New Zealand has embraced the ‘user pays’ philosophy perhaps a little too enthusiastically in this respect.
NZLII is an attempt to provide the trajectory for such a ‘magic bullet’.
Free access – a brief New Zealand history
The New Zealand free access story begins in 1999 with AUSTLII access to the decisions of the New Zealand Court of Appeal, a body with a long established culture of electronic publication. That offshore beginning was entirely consonant with the fact that AUSTLII is, after all, the Australasian Legal Information Institute. Over the next three years, New Zealand content grew to include the rulings of the Privacy Commissioner and the Commerce Commission, reports of the New Zealand Law Commission and some treaties. De facto, the decisions of the Privy Council (our then highest appellate court) also became available via BAILII. By the end of 2003, while New Zealand was well served in terms of commercial value-added on-line material,[2] its free access coverage was sparse in comparison with the array of Australian material on AUSTLII.
Case law growth was impeded by the absence of any electronic access to decisions from the major generators of judgments: the High Court (a court of original and appellate jurisdiction, both in civil and criminal proceedings) and the District Court (the other civil and criminal workhorse). In addition, specialist courts had either exclusive commercial supply agreements (for example, the Employment Court) or no electronic judgment domain at all (for example, the Family Court).
In the legislative context, the ability to obtain data for a free access site was equally restricted. Ironically this was due to the developmental difficulties encountered by a free-access governmental initiative: the Public Access to Legislation (PAL) project..[3] PAL’s objective was to provide, by the end of 2002, public access to electronic versions of acts and regulations, bills and supplementary order papers. When it became clear that the project was suffering serious delays, stop-gap access was provided via an interim website, backboned by commercial providers.[4] While there was therefore nominally ‘free’ public access (in the sense of state-subsidised use of a commercial service), there was equally no possibility of access to the data itself for inclusion in an integrated free-access website.
NZLII – the rationale
At the close of 2003, creation of and access to the electronic legal domain was almost totally dominated by commercial initiatives, a fact reflected in Margaret Greville’s ‘user pays’ comment at the beginning of this paper. Nonetheless it was also clear that there was an increasing domain of ‘raw’ data being generated and that access to it for LII style integrated searching (as an alternative to value-added access) would promote the Montreal declaration[5] in the New Zealand context.
The reality of a free access integrated site is that it must sometimes ‘coat-tail’, at least in its initial stages, on the initiatives of others. From this perspective, several events or trends contributed to the perception that 2004 might be the year to do so:
Restructuring the New Zealand legal profession
The Lawyers and Conveyancers Bill, long on the legal horizon, was by now within the legislative process, having passed its first reading in July 2003.[6] The projected effect of the transition to non-compulsory membership of the New Zealand Law Society was the probable demise of most Law Society libraries.[7] Smaller legal practices would then face the dilemma of how to access material they previously enjoyed as part of their Society membership and might essentially redefine themselves as ‘members of the public’ in terms of access, rather than shoulder the considerable cost of a subscription service.[8]
The change in the structure of the courts
The replacement of the Privy Council, as the highest appellate court, by the Supreme Court of New Zealand would be an opportunity to strengthen the judicial support for the electronic distribution of decisions for public access.[9]
The public sector drive towards electronic publishing of judgments
The Department of Justice was itself sending signals that it had the issue of electronic publication to the forefront of its strategic planning, via the Judicial Toolkit project (JTK). JTK provides a suite of electronic tools: trial management, decisions filing system, a personal library, access to documents, benchbooks and document templates,[10] and a gateway to electronic research material.[11] Begun in 1999, the project’s first phase focussed on the construction of a Judicial Decisions Database (JDD) containing decisions of the Supreme Court, Court of Appeal, High Court, and District Court (including Family and Youth Courts) - with specialist courts such as the Maori Land Court and the Environment Court also in prospect.[12] This database was initially for internal use but with an end goal of public internet dissemination. Population of the Judicial Decisions database therefore appeared to provide an opportunity for significant growth of decision coverage in an integrated free access site, if the data stream could be secured.
Increasing web publishing by individual decision-making bodies on their home sites
Finally several other legal bodies, such as the Waitangi Tribunal,[13] were beginning to provide the full text of their decisions or reports via their own websites. Again this represented another area in which an integrated free access site could ‘coat-tail’.
NZLII – the launch of a new LII
In late November 2003, during discussion of the ‘incubation’ function performed by existing LIIs to foster LII family growth, the case was made for a nominally separate New Zealand LII. [14] This was not an expression of dissatisfaction with how AUSTLII had grown New Zealand holdings. Rather it represented a recognition that ‘What’s in a name’ was important, if the ideal of a more comprehensive collection of New Zealand legal data was to be advanced.
The proposal was the creation of a ‘vapour’ NZLII: an indigenous brand through which to negotiate access to the increased number of potentially available data streams. This material would continue to be hosted by AUSTLII but could be accessed via a NZLII ‘front door’. Once critical mass was reached in terms of that coverage, the ultimate goal would be a full-blown New Zealand LII, digitally hosting such material within its own jurisdiction.
AUSTLII staff designed a logo and built a test site to be shown to prospective data suppliers. A steering group was established early in 2004, with representation from the proposed partner Universities, the NZ Law Librarians’ Group, independent information technologists/knowledge managers and the legal profession, with observer status for the judiciary, the Ministry of Justice and the Parliamentary Counsel Office. Sir Kenneth Keith, currently a Supreme Court Justice and formerly a President of the Law Commission, became NZLII’s patron.[15]
NZLII was formally welcomed to the LII family at the Paris conference in November 2004. The Institute is based on an informal partnership between the Faculties of Law of the University of Otago and the Victoria University of Wellington. This was intended to provide a stable institutional home, independent of government and the private sector and mirrors the AUSTLII partnership model.
NZLII – the teenage years
In contrast with the four data supply arrangements it effectively began with in 2004, NZLII now has 9 data streams, with agreements for another five. Included in that cohort is the new Supreme Court.[16] In terms of breadth of coverage, this represents considerable growth; in terms of data volume, NZLII has yet to achieve the critical mass which was the object of its formation. (See the Table at the end of the paper for an overview of New Zealand courts, tribunals, authorities and other decision making bodies which are potential sources of data streams.)
Ironically, several of the barriers to progress are considerations which prompted the move towards a independent brand identity in the first place.
The long-heralded enactment of the Lawyers and Conveyancers Bill (and the consequent demise of many local law libraries with their group electronic subscriptions) might have provided a strong attraction from within the profession to an integrated free access legal site. Having passed the first reading (July 2003), Select Committee stage (July 2004) and its second reading (May 2005), the Bill’s tectonic progress has been delayed indefinitely by an administration which elected not to face a protracted Committee of the Whole House stage in this election year.
The progress of the Judicial Toolkit project (JTK) has also been continually monitored. NZLII has been expressly contemplated by the Ministry as a site to be linked to Decisions Online (the public face of the project).[17] While decisions were slated by the Ministry to be publicly offered by the end of 2004, the project is still yet to show its public face. A partial launch is planned for late November/early December 2005, but will initially contain only decisions of the Supreme Court and of the Court of Appeal (already NZLII providers), with ‘incremental’ addition of the High Court.[18] For the immediate future, the possibility of extended supply to NZLII must remain exactly that.
NZLII’s growth fares even less well on the legislation front. The PAL project continues to demonstrate a less than happy history, being reactivated in March 2005 after a two-year delay. Completion is not now expected until late 2006 ‘at the earliest’.[19] The government continues to fund interim ‘free access’ for the public to the databases of commercial publishers.[20] This makes any consequential data feed to NZLII a still distant prospect.
Conclusion
NZLII must continue to ‘coat-tail’ the large governmental initiatives in case law (particularly in relation to the High and District Courts) and in legislation. It must also continue to negotiate with those legal decision-making bodies which have established websites which offer access to some of the decisions they generate, even though this strategy has yet to greatly galvanise growth in coverage.[21] And it will explore at least one initiative in relation to material which has yet to find any electronic platform.
The journey to an independent identity which NZLII began less than two years ago is as torturous as the teenage analogy, adopted at the outset, implies. While a much wider variety of electronic material is available free to the public in 2005, New Zealand still lacks a comprehensive integrated site. With the recent launch of CommonLII, the absence of core coverage in both case law and legislation becomes even more stark. Perhaps Margaret Greville’s comment which began this paper still has a prescience: the ‘user pays’ philosophy is so deeply embedded in New Zealand that the LII ethic struggles here to resonate quickly with the intensity it has enjoyed in other jurisdictions. However, it is preferable to consider, just as with teenagers, that NZLII’s growing pains are an inevitable but essential aspect of its successful transition to the status of a mature LII.
Kia Kaha. He moana pukepuke e ekengia e te waka.
Stay strong. A choppy sea can be navigated
TABLE 1
PRIMARY SOURCES OF DECISIONS WITHIN THE NEW ZEALAND
LEGAL SYSTEM
(Current NZLII data suppliers are marked with an asterisk.)
COURTS
SUPREME COURT*
http://www.justice.govt.nz/supremecourt/
New Zealand’s highest appellate court.
Decisions available on the Court’s own website.
COURT OF APPEAL*
New Zealand’s generally intermediate appellate court (although it deals with the vast majority of appeals on both civil and criminal matters).
HIGH COURT
Original jurisdiction for serious criminal matters; civil jurisdiction for complex matters; appeals from decisions of the District, Family, Youth and Environment Courts and numerous administrative tribunals and regulatory bodies.
DISTRICT COURT
Criminal jurisdiction, generally for more minor offences; civil jurisdiction for claims up to $200,000.
FAMILY COURT
http://www.justice.govt.nz/family/index.html
Deals with the care and protection of children, the mentally disordered; adoption, dissolution, family protection claims, relationship property.
Selected anonymised decisions available on the Court’s own website.
EMPLOYMENT COURT
http://www.justice.govt.nz/employment-court/index.html
Determines cases relating to employment disputes: eg. challenges to determinations of the Employment Relations Authority, questions of law, and has first-instance jurisdiction over matters such as strikes and lockouts.
ENVIRONMENT COURT
Primarily resource consent issues in relation to the use of land or water, mining, archaeological sites, compulsory acquisition of land.
MAORI APPELLATE COURT
http://www.justice.govt.nz/maorilandcourt/decisions.htm
Available from the Maori Land Court’s website,
MAORI LAND COURT
http://www.justice.govt.nz/maorilandcourt/
Primarily issues of multiple ownership of and succession to Maori land.
Decisions on the Court’s own website.
YOUTH COURT
http://www.justice.govt.nz/youth/decisions/index.html
Decisions are confidential but the website contains a summary of decisions, grouped by topic. Some summaries are provided by commercial publishers.
AUTHORITIES/COMMISSIONS (selected)
ACCIDENT COMPENSATION APPEAL AUTHORITY
Determines appeals under the Accident Compensation Act 1982.
BROADCASTING STANDARDS AUTHORITY
Sets Broadcasting Practice: Codes and Principles; deals with formal complaints; allocates funds to political parties before elections.
Decisions available from Authority’s own website.
COMMERCE COMMISSION*
Promotes competition and prohibits misleading and deceptive trading conduct; industry regulation for eg. electricity, telecommunications
HEALTH AND DISABILITY COMMISSIONER
Promotes/protects rights of health and disability consumers and hears complains under the Code of rights.
LAW COMMISSION*
Undertakes systematic review, reform and development of NZ law.
Reports, discussion and study papers available from the Commission’s own website.
PRIVACY COMMISSIONER*
Promotes and protects individual privacy across the public and private sectors.
REFUGEE STATUS APPEALS AUTHORITY
http://www.nzrefugeeappeals.govt.nz/
Decisions available from the Authority’s website.
SOCIAL SECURITY APPEAL AUTHORITY
Determines appeals under social security and war pension legislation.
TAXATION REVIEW AUTHORITY
Hears objections to tax assessment and other decisions of the Commissioner of Inland Revenue.
TRIBUNALS (selected)
COPYRIGHT TRIBUNAL*
Disputes about licences for copying, performing and broadcasting or works. Licensing schemes can be also be referred.
DEPORTATION REVIEW TRIBUNAL
Appeals against deportation orders resulting from conviction or revocation of residence permits.
HUMAN RIGHTS REVIEW TRIBUNAL*
Selected decisions available from the Human Rights Commission website at
http://www.hrc.co.nz/home/hrc/home.php
LAND VALUATION TRIBUNAL
Hears objections against valuation made by the Valuer-General.
MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Proceedings against medical practitioners.
Decisions available from the Tribunal’s own website.
MENTAL HEALTH REVIEW TRIBUNAL
Determines removal or retention of status as a patient subject to a compulsory treatment order.
SPORTS DISPUTES TRIBUNAL
http://www.sportstribunal.org.nz/decisions.html
Forum for resolving sports disputes under statutory rules.
Decisions available from the Tribunal’s website.
WAITANGI TRIBUNAL
http://www.waitangi-tribunal.govt.nz/
Set up to inquire into claims by Maori against any Crown act, policy, action, or omission that prejudicially affects them.
Reports available from the Tribunal’s own website.
OFFICES
IPONZ
http://www.iponz.govt.nz/pls/web/dbssiten.main
Intellectual Property Office of New Zealand: patents, trademarks and designs.
Database on the Office’s website.
OFFICE OF FILM & LITERATURE CLASSIFICATION*
http://www.censorship.govt.nz/
Body classifying publications which may need to be restricted/banned.
Decisions on the Office’s own website.
SELECTED SECONDARY SOURCES
AUCKLAND LAW REVIEW*
CANTERBURY LAW REVIEW*
NZ JOURNAL OF EMPLOYMENT RELATIONS
NZ JOURNAL OF ENVIRONMENTAL LAW
NZ BIOETHICS JOURNAL
OTAGO LAW REVIEW*
VICTORIA UNIVERSITY LAW REVIEW*
WAIKATO UNIVERSITY LAW REVIEW/TAUMAURI*
YEARBOOK OF NZ JURISPRUDENCE*
* Thanks to Alan Edwards, Law Librarian, University of Otago for comments on a draft of this paper[.]
1 http://www.llrx.com/features/newzealand.htm
[2] Law practices which had electronic holdings often subscribe to service suites: for example, bibliographic databases with hyperlinks to the full text of a decision and to legislation. Other services focus on a discrete area of legal practice, often built around a text in electronic form, together with relevant legislation, case law (reported or unreported), precedents, forms etc.
[3] PAL was launched by the Parliamentary Counsel Office after a 1998 discussion paper which isolated a climate of frustration at the lack of any alternative to commercial access to legislation. See http://www.pco.parliament.govt.nz/pal/ for a full description of the project and its progress.
[4] The arrangements were instituted in September 2002. Statutes and regulations (in searchable form) are provided by Brookers at http://www.legislation.govt.nz/. Bills (in browse and download form) are provided by Knowledge Basket at http://www.knowledge-basket.co.nz/gpprint/.
[5] See http://www.worldlii.org/worldlii/declaration/montreal_en.html for the full text of the Declaration, the opening principles of which state:
Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;
Public legal information is digital common property and should be accessible to all on a non-profit basis and, where possible, free of charge;
Independent non-profit organisations have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published.
[6] The Bill was referred to the Justice and Electoral Select Committee, emerging from that process almost 1 year later, on 27 July 2004.
[7] The Bill provides for the registration of conveyancers and ends the legal profession's exclusive right to provide conveyancing services. While the New Zealand Law Society will continue to have a significant role in relation to the regulation of the legal profession in a compliance sense (auditing and discipline), membership of the Society will no longer be compulsory. For NZLII this probably excludes any possible funding model similar to that which CANLII enjoys, by virtue of its relationship with the Law Society of Canada.
[8] The prospect of deregulation had prompted a legal ‘portal’ project, which attempted to provide a single access point to a wide variety of online services for lawyers. Despite the New Zealand Law Foundation providing considerable financial support, the project did not achieve its stated objective and was effectively defunct by the end of 2003. See http://www.lawfoundation.org.nz/ for a description of this funding body.
[9] Under the Supreme Court Act 2003, the Supreme Court came into existence on 1 January 2004, commencing hearings on 1 July 2004. It replaced the Privy Council which had begun to make its decisions available via its own website. The Supreme Court has continued that tradition.
[10] A decision template has enabled construction of a decisions database. The template was constructed in consultation with the judiciary and, while its takeup was gradual, by July 2004 the database contained over 12,000 decisions. See http://www.nzll.org.nz/ for Dr Jo Lake’s paper Public Electronic Access to New Zealand judicial decisions, delivered in July 2004 at the NZ Law Librarians Group (NZLLG) symposium. The most current figure is in excess of 20,000 (interview with Joanne Jeppesen, Ministry of Justice, 17/10/05).
[11] See http://beta.austlii.edu.au/au/other/CompLRes/2001/9.html for Public Access to Legislative Information and Judicial Decisions in New Zealand: Progress and Process in which Judge David Harvey describes JTK from a judicial user’s view; also published at Australian Law Librarian 10 (1) 2002.
[12] Law News, ADLS, July 30 2004, Report on New Zealand Law Librarians Group (NZLLG) Legal Information Symposium 2004.
[13] Claims to the Waitangi Tribunal are complaints that the Crown has breached the Treaty of Waitangi by particular actions, inactions, laws, or policies and that Maori have suffered prejudice (harmful effects) as a result. See the Tribunal’s website at http://www.waitangi-tribunal.govt.nz/ for the full text of its reports and recommendations.
[14] The initiative was announced at Law via the Internet 2003, the conference which followed the LII meeting in Sydney.
[15] One of the Law Commission’s first references was to consider ways in which the law could be made as understandable and accessible as possible. The work done by the Commission in this area made Sir Kenneth Keith a natural choice as a patron.
[16] As at 12 October 2005. Active negotiations are being conducted with a number of other bodies.
[17] Public Electronic Access to New Zealand Judicial Decisions Dr Jo Lake, Legal Information Symposium 2004, July 2004. For a .pdf version of the paper, see the NZLLG site:
http://www.nzllg.org.nz/events.cfm?folderid=326&CFID=4305329&CFTOKEN=24266737
[18] Interview with Joanne Jeppesen, Ministry of Justice, 17/10/05.
[19] See http://www.pco.parliament.govt.nz/pal/palfaq.shtml
[20] The public use of the service has risen dramatically from 816,00 hits per month in September 2002 to over 3 million in August 2004 (the most current figures able to be located). The overall cost of the service is NZ $14,643,000, compared with the initial estimated cost in 2000 of NZ $8,174,000: Report of Parliamentary Counsel/Te Tari Tohtohu Paremata for the year ended 30/6/2005.
[21] Investment in the design process for a body’s individual website may be a partial explanation for slowness to make data available for republication to a service which integrates that material within a larger legal domain.
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