e-Justice: A Justice System for the People of the 21st CenturyJustice
My guiding principle as Justice Minister is that our justice system should be the people's system.
It should protect victims of crime and plaintiffs who have suffered genuine harm.
It should protect people wrongly accused.
And it should reflect New Zealanders' sense of justice.
But if the justice system is to be the people's system it must reflect the present world in which we live.
And if it is to continue to be the people's system into the 21st Century, it must be capable of adapting to changes in technologies and the world of business - efficiently and fast.
I call that aspect of my work as minister my e-justice project.
I want New Zealanders - the people - to be involved in it.
These are a few hypothetical questions that are among those New Zealanders may want to consider.
Let's say an unauthorised person taps into your telephone and listens to your conversations.
Let's say another unauthorised person intercepts your e-mail conversations.
Should the people's system say they have committed the same crime?
That one is probably fairly easy.
Here's a slightly more difficult question.
What if a person breaks into your house when you're out, doesn't do any damage, but copies your computer files, leaving the house otherwise just as they found it?
What if another person breaks into your computer via telephone lines and copies your files?
Leaving aside the crime of breaking in, has any other crime been committed in either case and, if so, are they the same crime?
Or let's say a person finds your cheque-book, and forges your signature to steal funds.
Another uses your credit card number to buy goods or services over the Internet?
What if a terrorist plants a small explosive device next to a company's main computer?
It goes off, but is so small that all it does is leave the computer and its contents unusable.
No one is hurt.
Nothing else is damaged.
Is that the same crime as achieving the same effect with a software virus?
Or let's say a PR firm has an agreement with a client to monitor email newsgroups on their behalf.
They set up a filter system, and it gets changed automatically by their computer, depending on some criteria.
There are also emails going backwards and forwards between the PR firm and the client changing the nature of the agreement slightly, over and over again.
Do they have even a contract?
If so, where and when did they form it?
What's in it?
What if the two businesses are based in different countries?
Whose laws apply?
How about a New Zealand-based journalist sending some defamatory gossip to a US-based Internet magazine.
It gets published in the magazine at a "dot com" address, but because it's only really of New Zealand interest that particular page gets hit almost solely by New Zealanders.
Who's the primary defendant and where did the defamation occur?
We could go on and on.
Ultimately, many questions such as these are for New Zealanders to answer, but others can probably only be answered globally.
Experts throughout the world are considering these kinds of questions right now, and I've invested quite a bit of time in reading what they have to say.
I take the view that it is probably futile in the long run to try to answer questions like those one by one.
The only reason those questions have even arisen is because of the speed with which technology has advanced in recent years, and because that has contributed to globalisation.
Whether telephone interception is the same as email interception was not something anyone was thinking about in 1961, and that's probably why our Crimes Act says the former is a crime but is silent on the latter.
This should be addressed. But, what I don't want to become is like the little boy and the dyke.
Technological change continues to accelerate.
It is estimated that 80% of the processes and technologies we will use in 2030 have not yet been thought of.
It is not sensible for us to spend those next thirty years - let alone beyond - constantly trying to catch up to technology.
What we need to do is make our law technology neutral.
We need to decide what the essence of a crime is, and define it in those terms, so that the technologies used to commit it become irrelevant.
The same applies to all other areas of law.
It will not be as easy as some people may think.
The first issue is the amount of law which may currently be technology-specific.
And the second issue is that there may be cases where New Zealanders really do think there is a distinction based on technology.
I, for example, personally believe there is a difference between a gang robbing a bank at gunpoint and another gang robbing it electronically.
The question is how to express that difference; define its nature.
That may be relatively easy because one crime involves the threat of violence.
But, in other cases, people may feel that without the application of technology, a crime really hasn't been committed at all.
Consider the interception of telephone calls versus email.
To express that simply as unauthorised eves-dropping - which seems sensible at first glance - would mean someone listening to a conversation at the next table at a café might be committing a crime.
I don't think New Zealanders want that to be a crime.
It means, though, that in moving towards a technology neutral legal system, there are going to be fish-hooks.
They need to be overcome.
The path forward, I believe, is to work out why it is that people may feel there is a difference between email interception and eve-dropping in a public place, and define that in a technology-neutral manner.
One thing is for sure.
If we try to define our laws in technology-specific ways, we're always going to be out of date.
It won't be the people's system.
It'll be their grandparents' system.
If we can't be specific about what technologies will be developed in the future, we can make fairly sure generalisations of how they will tend to impact on business relationships.
They'll tend to be formed faster, in a less structured manner, and independent from a particular time and place.
They'll be more dynamic.
Consider the impact of today's technology, the Internet and email.
A few years ago, almost no one had bought a product over the Internet.
In 1997, 10 million Americans did.
Already around 25% of Americans use the Internet everyday and about the same proportion of New Zealanders.
Increasingly, services are provided over the Internet, as with the case of my hypothetical PR firm and its client wanting the email newsgroups monitored.
And, of course, other technologies - even those seemingly unsophisticated such as 0800 numbers - are changing the way contracts are formed.
It means we need a new way of thinking about the nature of a contract.
A traditional contract often exists on paper.
It is signed at a particular time and place.
It says who will do or deliver what, by when, in exchange for something else, usually money.
Even a verbal contract tends to have those qualities.
At first glance, it appears an electronic contract does too.
There was a point when my hypothetical client asked my hypothetical PR firm to monitor the Internet, and a point when the PR firm said it would for a price.
An acceptance of that price was then sent, again from a particular place at a particular time.
But the contract became more dynamic.
The filter system, remember, kept changing the information being collected and delivered, without either party to the contract necessarily being advised.
And the two parties kept sending one another emails changing their agreement here and there.
Did they have one contract that they kept amending, or did they have a whole lot of smaller ones?
With a traditional view of contract, you could probably argue either way, and I'm sure two law firms would generate large fees by doing just that, should a dispute arise.
"My client sent an email at 9.07am amending the contract to require this information to be delivered by midday, and your client replied at 9.11am saying it was ‘no problem, mate'.
"But when the information was delivered at 11.57, this particular newsgroup had not been monitored."
And the other lawyer would argue that that wasn't really part of the contract - it was more a friendly conversation.
And, in any case, the filter had decided not to monitor that particular newsgroup, and that had always been understood.
It is not efficient to have those retrospective arguments.
In the future, it is likely that what was in a contract at a particular time will become less important.
More important will be solving disputes that may arise and re-establishing relationships if necessary.
The contract, then, will not focus so much on "you will do that", "I will do this".
It says, "we will work together towards these goals and if we have a difference of opinion, this is what we will do to sort it out".
A dynamic contract - an e-justice contract - may become more of a relationship maintenance system.
The formation of contracts electronically raises the issue of electronic signatures, and encryption systems.
New Zealand and Australia are already working on the issue and we're both following internationally uniform legislative approaches.
The question for New Zealanders is when is an electronic signature the same as an ordinary signature.
How do we make them secure?
Who's liable when things go wrong?
These are additional issues for New Zealanders to consider.
But globalisation means that none of this is just about New Zealand.
Our contract law can develop in one way here - even the best way - but it's no use if the rest of the world has different ideas.
An electronic signature may be perfectly acceptable in New Zealand but it's not much use to us if it can't be used for export contracts.
And so forth.
It is no surprise that APEC, the OECD, the World Trade Organisation and other international fora have electronic commerce near to the top of their agendas.
The development of an effective e-justice system here in New Zealand depends on us aligning our law with international standards.
But whatever international standards are agreed upon, there will always remain the issue of jurisdiction.
It's been a major issue for exporters and importers since international trade began, and most transactions are now covered by the International Convention on Sale of Goods.
But the convention doesn't focus on services, particularly on on-line services.
And we can't always assume that parties to a contract, assuming we can define a contract, will settle jurisdiction issues themselves.
Sorting out jurisdiction issues is the fourth major issue we need to consider as we build an e-justice system.
It is essential for New Zealand to be at the leading edge of international work to develop a framework for jurisdiction to be determined with respect to electronic commerce.
With Australia, we will continue to work on the issue through our ongoing CER Consultations.
We could consider harmonising the grounds on which our respective courts would exercise jurisdiction.
More broadly, it is also the view of legal experts that New Zealand should support the work of the Hague Convention on Private International Law in developing a new treaty on jurisdiction and enforcement of judgements in international disputes.
It has also been suggested New Zealand courts could be able to grant interim relief in support of foreign proceedings and arbitrations.
I believe technological change and greater globalisation will offer a much more interesting world for the people of the 21st Century.
We'll interact with a greater diversity of people, and have access to a far wider range of jobs, goods, services and experiences.
It will be faster place, and more dynamic.
In a sense, people are going to be citizens of the world, almost as much as citizens of their own countries.
They will work and play globally.
Our law needs to be relevant to that world.
Our justice system needs to be the system of the people of the 21st Century - not be stuck in the 20th.
There are major issues ahead of us that we all need to be part of addressing; major questions we all need to be part of answering.
Much work has gone on behind the scenes, by academics and experts.
It's time now for the people to become part of that debate.