In England, Australia, and Canada, the move towards online courts has been the subject of a lot of reports, discussion, submission, blogs and Twitter traffic (there is so much I can’t link it all but a great entry point is the excellent Law, Technology and Access to Justice blog). In New Zealand, things have been a lot quieter, so much so the general impression is that we have no appetite for an online court project. But while there is little discussion about online courts in New Zealand, there are bits and pieces of what looks a lot like an online court – or at least a “not in-person court” – taking shape.
An example is the Tenancy Tribunal, a tribunal which in 2016 accounted for 55% of all tribunal business and disposed of 19,067 cases (very big in NZ terms). As of November 2018, it had all the elements of an online court – front end portal, alternative dispute resolution built in, and online hearings – in place, or at least possible.
The front end portal
In mid-2018 with no fanfare I could find (so probably not really meeting the definition of fanfare) it moved to online filing. The online portal, which can only be entered using the Government’s RealMe authentication, uses a basic form. There is still an option to apply using paper (if you can find it on the webpage, it is not obvious) but it notes: “If possible, it is best to apply online. The process is quick, and you will know you’re submitting a correct and complete application the first time”.
The second component of an online court – the integration of a form of alternative dispute resolution into the process – has long been in place. Granted it is not strictly “online”, it is over the phone (does voice over internet phone count?) but it does fit with the concept of the online court – a step between filing and adjudication, conducted outside of a court, where the parties informally attempt resolution. If the parties agree, the Tenancy Mediation service can make orders that are enforceable as if they are orders of the District Court.
The third component of an online court – the online hearing – is also in place. In November 2018, the Tribunals Powers and Procedures Legislation Bill passed into law. Along with the Court Matters Bill, it was said to forma “an integrated package of amendments that will contribute to the goal of a modern, efficient, and effective courts and tribunals system”. Included was a provision amending the Residential Tenancies Act regarding sittings of the Tribunal:
The hearing of a matter or any part of it may be conducted by telephone, audiovisual link, or other remote access facility if the Tribunal or the Chairperson or a Deputy Chairperson considers it appropriate and the necessary facilities are available.
And just like that – at the discretion of the Tribunal’s Chair or Deputy Chair – we have our first online court? I don’t know whether the facilities in place for an audio-visual link, but given we are already doing mediations on the phone, it doesn’t seem like a huge technological leap.
Notably it is not just the Tenancy Tribunal who now has the power to conduct proceedings remotely. The same provision has been inserted into the legislation governing the Human Rights Review Tribunal and the Accident Compensation Appeals District Court, along with Tribunals which see less traffic such as the Registry Customs Appeal Authority and Immigration Advisers Complaints and Disciplinary Tribunal.
So online courts are perhaps not just an off-shore phenomenon – they are arriving here in the finest traditions of back door reform.
If you are interested in hearing more about this issue in the New Zealand context, the University of Otago Legal Issues Centre is holding a public event on 2 May 2019 with Katarina Palmgren and Mike Heron QC chaired by me, Bridgette Toy-Cronin – “Is online dispute resolution or legal future?”. For those in Dunedin you can join us at the Richardson Building, 10th floor to hear the discussion and join us for snacks and a drink after, and for those not lucky enough to be in this fine city, it will be live-streamed at this link 5:30pm NZT (but sadly the tech is not yet up to the provision of snacks and drinks via this medium).