Armed with a big chunk of funding allocated in this year’s Budget, the Ministry of Justice and the judiciary are going to market to seek bids for Te Au Reka – the first phase of the long-awaited digitisation of New Zealand’s courts and tribunals.

Unlike the UK, which attempted to digitise its courts in-house by using government departments, ours will be a normal commercial process. For that reason, the size of the funding package is being kept under wraps. While the Budget 2022 documents describe the purpose and expected outcomes of Te Au Reka, there is no mention of a specific dollar amount.

Justice David Goddard, who has been tasked with managing the digitisation process, makes no apologies for declining to reveal how much it will cost.

“My experience of building projects is that if you tell people what you’ve put aside, they will always find a way to use it. So very deliberately that envelope isn’t public but it’s a substantial investment over the whole life of the project and not just the initial implementation but maintenance and support over the next 15 years,” he says.

“It’s harder to interact with the court system than it should be. It’s harder to get information about your case than it should be. All these things we can do much better. We can reduce costs, we can improve information, we can enhance participation for people in the system.”

The money is expected to cover the first phase of the program – the digitisation of the case management system – but more will be needed for other items on the to-do list.

“I suspect some of these will require further substantial investment on top of Te Au Reka and we’ll need to talk to government about its willingness to support the improved delivery of justice,” Justice Goddard says.

In fact, under-investment is one of the major risks to the project or, as the judge puts it, “the risk of not being willing to spend what it takes to do it well”. That’s happened in other countries, he says, when governments have tried to do it on a shoestring. “The result is that you don’t achieve your objectives.”

But there is a strong commitment from the government to get it right after a couple of decades of under-investment in the technology needed to support the administration of justice, he says.

“The most widely-used technology in the courts – the case management system – is 20 years old and is no longer supported by the original vendor. It’s really clunky. We need to do something that is fit-for-purpose, that is properly built and continues to be properly supported.”

Access to justice

The judge himself is a firm believer in the project’s value. As he sees it, without substantial investment in technology and digitisation of the courts and court processes, it’s difficult to see how access to justice can be improved.

“To do what we do now efficiently, we need better technology and the only way we can significantly expand access to justice is through smart use of technology.

“If you ask, ‘how can we really meet justice needs of the very large proportion of New Zealanders who can’t afford to access our courts and tribunal’? the reality is that the only way we can do that is by appropriate use of technology.”

The same issue was raised by Lord Thomas of Cwmgiedd, the former Chief Justice of England and Wales, who visited New Zealand in October 2019 as part of the New Zealand Law Foundation’s Distinguished Fellow Program.

Technology and the move to online courts were critical to making justice more affordable to “ordinary” people, Lord Thomas said.

Investment in technology is “extraordinarily expensive” but the rule of law is at risk if ordinary individuals cannot enforce their rights on issues that matter to them.

“If you don’t give ordinary people a method of enforcing claims or complaints about things that have gone wrong or to deal with their rights, you are alienating them from the legal system and you are fundamentally undermining the rule of law,” Lord Thomas said.

Covid changes

In terms of getting the message across to a wider audience, covid changed everything.

“We got more comfortable with technology. Even the judges who were suspicious of it have been forced to use it and [now] realised that some things are done better with it,” Justice Goddard says.

“For example, [take] a short procedural hearing with people scattered throughout New Zealand. To make everyone come to one place is terribly inefficient and creates cost and access-to-justice barriers. Doing things like that with technology is a no-brainer.”

Covid also began to wean court users off their traditional paper-based systems. Within weeks of the first lockdown, the beginnings of an online filing system were up and running, meaning people no longer had to front-up at the counter with hard copies.

But, as Justice Goddard points out, while court users can create PDFs and upload their documents, most have to print, scan and email them. To date, there is no provision for filing online. And there is no way participants in a hearing can log in, view the documents in their case file and track hearing dates and deadlines. While Te Au Reka will address this problem, there is still a long way to go.

Buy-in from both the legal profession and the public is essential if digitisation is to work. A consultation document was released earlier this month and feedback is due by Friday 30 September.

“The judiciary is more involved in this technology project than they have been. For the first time, [they have] developed their own digital strategy and how it should be designed,” Justice Goddard says. “We are going to invest quite a lot of judge-time in making sure that design meets our understanding of what the court system is and where it should go.”

“There’s the risk that if users are not sufficiently engaged with the design, it doesn’t work as well as it ought to in practice. In some countries I visited, the design has been very much led by technology people and when it’s landed in the courts it hasn’t worked very well for parties, for the lawyers or for the judges.

“So, I think one of the biggest risks is that it’s not sufficiently focused on users and the way to reduce that risk is really rolling up our sleeves and getting involved.”

Roped in?

Asked whether he put his hand up to manage the project or was co-opted with one of those offers one cannot refuse, Justice Goddard says it was probably a bit of both.

He built his first computer from components at the age of 16 and, while also in his teens, wrote software for a family friend in the film industry “which produced royalties”. His first degree was in maths.

Later, at Chapman Tripp, he was the technology partner and led the firm’s move to networked desktop PCs. As a judge, he was invited onto several technology-related committees.

His new role, Justice Goddard says, is “a mix of sort-of volunteering and being invited to do it”, arising from a long-standing interest in technology and how it can help those in the legal world do things better.

“We’ve known for a long time that we needed to do better with technology and the judiciary has been anxious to do more about digitising the courts. We just haven’t had the resources to do so. The technology we’ve been using has been getting older and older and wobblier and wobblier.”

During covid, he says, “it became clear that not only could we work with technology, but our current technology wasn’t fit-for-purpose”. And while change might create all sorts of risk, “it seems to me that there are all sorts of risk with our current systems – paper, with a veneer of technology, a lot of it outdated, over the top”.

Remote court hearings, another necessity during covid, are here to stay. But, again, the technology is not fit-for-purpose and, like case management, is part of the five-year plan for change. The system is being reviewed: the software won’t be a problem, Justice Goddard says, but dealing with the hardware in every court in New Zealand will be time-consuming.

Livestreamed court hearings are a different matter. The Supreme Court is already doing them but while some cases in other courts might be suitable, there are obvious problems with issues like name suppression.

Sweet spot

Right now, it seems, the stars are aligned.

“The important thing for me is that a few things have come together to make this happen now and to make it timely – that is, the experience of using technology during covid which has given us more of a sense of what might be possible, it’s the willingness of the government to invest significantly in court technology through Te Au Reka and it’s a really good level of collaboration between the judiciary and the ministry to try to improve how the courts work by making smart use of technology,” Justice Goddard says.

“To paraphrase Lord Rutherford, we don’t have much money, so we have to think. We’re not going to have £1.3 billion to spend on digitising our courts. We will have significant investment but we’re going to have to do it really smartly.

“I think this is an amazing opportunity for the judiciary to lead some change in the way we administer justice to make the process more responsive. To do that we need to work closely with the ministry. The relationship is healthy and working really well.”

To read the consultation document, click here. ■