Chris Barton: Courts still in pre-web timewarp

COMMENT

When it comes to the online world New Zealand justice is not only blind, but also deaf as a post and a Luddite.

I encountered its Stone Age stance last week in the process of sighting High Court documents - a feat I eventually achieved, but not without considerable frustration.

There was no website and no email involved. Everything happened the old-fashioned way - beginning with a visit to the court foyer to view the daily court lists pinned to the notice board.

Then a written request (faxed) to view the court file, followed by a discussion with the court registrar, then several phone calls until I got clearance.

Finally (my third trip to the court that day) the ring binder file was handed over to be read in a small room near the public counter. The person at the desk helpfully advised I could photocopy if I wanted, but that the court charged $5 a page. Yes, really.

In some ways it was refreshing - harking back to less frantic times when people would make appointments to meet and sit down and discuss matters at a leisurely pace.

Quaint. But in 2004, it's entirely inefficient and, in the obstacles it throws up, bordering on obstructive of a fundamental tenet of our society - that justice must be seen to be done.

With a website, email and electronic records my simple request might have been satisfied in a few mouse clicks. And why not? Surely in the interests of open justice in a functioning democracy this sort of information should be freely - and easily - available.

The concept of open justice is that most sittings of any court should be open to the public - with some exceptions when the right to privacy or the need for protection overrides the public interest.

Appeal Court Judge Sir Kenneth Keith explains: " ... Although the hearing of a case in public may be and often is painful and humiliating, all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect." So if the open court principle is so vaunted, why is it not enhanced online? The web provides a perfect means to put the workings of the court - statements of claim, affidavits and other information often denied the public in open court - under a truly public gaze.

Yet rather than welcoming greater public scrutiny and the added discipline it could bring to ensure the law is properly applied and administered, justice flees in fright.

There's more hypocrisy in case transcripts - a key part of the court record - which are available to judges but not the public. And while it's all right for the court to record what is said, journalists and the public cannot.

There's similar technophobia regarding videoconferencing and videotaped evidence.

So if as an internet user you're thinking why not make open court proceedings truly open and video stream them to the web, in the thinking of the court, you're a heretic.

The problem is not just arch-conservatism in the judiciary but an unwillingness to come to terms with the virtual world - especially when so much of the justice system is enshrined in physical presence.

Presence not just within the four walls of a courtroom, but also apparent in cross-examination under pressure, the body language of the litigators and the whites of the eyes of witnesses.

Our courts also specifically require presence in paper form - for claims, affidavits and the like. Which makes the prospect of electronic records - and hence publishing to the web - very remote.

But doesn't the Electronic Transaction Act remove the legal distinction between electronic and paper forms of documents and files? Yes, but sadly our courts are exempt from that law.

Which means legislative change to allow for electronic records is needed - something successive governments, despite their rhetoric about the importance of e-government and the democratising power of making information freely available, have shown no inclination to tackle.

Meanwhile almost very other civilised jurisdiction in the world is embracing the benefits the electronic and virtual world bring to the judicial process.

But our justice is slipping further and further into the dark.

* Email Chris Barton