News Item

December 2020

Justice system must bring legal data into 21st century

A new legal research report released today calls for written decisions of courts and tribunals in New Zealand to be prepared and published as digital data.

The research behind this report was funded by the New Zealand Law Foundation, as part of its significant contribution to building knowledge through its Information Law and Policy Project. The report and the prototype were a collaboration between Tom Barraclough and Curtis Barnes of Brainbox Institute, independent researcher, Warren Forster and representatives from OpenLaw NZ .

Barraclough explains: “These decisions are the law of New Zealand. People with commercial subscriptions have more complete access to decisions of courts and tribunals than the general public do. We wouldn’t accept this for legislation, so why should we accept it for case law?”

The report recommends that the government, the judiciary, the legal profession, and the wider community improve the way judgments are published. It suggests a pilot program in a lower-level tribunal once the current system of judicial publishing has been adequately mapped.
The authors say the current system for legal publishing is no longer fit for purpose. Instead, New Zealand could be doing much more to make case law freely available to the public.

“Once judgments are available as digital data, a whole new world of research opens up. I’m excited about the opportunities this type of system would create, including the ability to better identify barriers to access to justice and other system issues so they can be fixed,” says Warren Forster.

New Zealand’s official law reports are produced by a commercial publisher under direction from the New Zealand Council of Law Reporting, a body with a statutory monopoly on publishing law reports since 1938. The council includes membership from the judiciary, the Solicitor-General, the Attorney-General and the Law Society. Individual judges also submit judgments for the law reports as part of the ordinary judgment delivery process. While judgments are not subject to copyright, the official law reports are.

“In many cases, that means that the government is actually paying a commercial entity for access to its own work product,” says Mr Barnes.

The researchers say access through Ministry of Justice sites is patchy, inconsistent, and unreliable. Some tribunals simply refer users to the New Zealand Legal Information Institute, NZLII, which receives no government funding and relies on the Australasian Legal Information Institute’s platforms to function.

As well as access to legal materials, the report’s authors say preparing and publishing “judgments as data” can help overcome contemporary issues in the justice system, like the proposed “electronic register” of cases to help media and tech platforms understand which cases are subject to suppression and what information cannot be published.

These changes need not affect the way judgments must be written, or their appearance in the courtroom. Instead, additional metadata and invisible formatting can be added to digital documents to improve their suitability for use in digital systems.

The researchers’ findings stem from a partnership with OpenLaw NZ to build a proof of concept software tool on OpenLaw NZ’s existing platform. They did so using around 7000 judgments obtained from the Accident Compensation Corporation (ACC). The research follows a 2015 report by the same authors which led to significant policy reform: it did so by analysing judicial decisions about ACC disputes to collect evidence of access to justice barriers.

They say analysis of judgments as data in this way could help to improve our understanding of the kinds of issues coming to court and how they are being dealt with, and better meet the needs of an overburdened justice system.

They say that any concerns about use of artificial intelligence techniques to analyse case law can be best managed through the system they recommend. “There are reasonable concerns about relying solely on AI to analyse judgments in certain contexts, but these should not be overstated,” says Mr Barnes.

The full report is available here.

The Law Foundation provided $79,126 to fund this project from its Information Law and Policy Project funding.

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