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Published online by Cambridge University Press: 28 February 2019
While both New Zealand and Australia have a shared history, each tells a separate story of sovereignty. Both began as British colonies and, when Australia became a federation in 1901, there was opportunity for New Zealand to join. It chose not to do so. To use an image from Moori, New Zealand's indigenous language, it decided to paddle its own waka (canoe). A century and a bit later, the New Zealand Legal Information Institute (NZLII) is another iteration of that drive to differentiate, born of a hope that an indigenous online identity might help to build more comprehensive free access to its legal information.
1 “Australasia” properly includes Australia, New Zealand, New Guinea and neighboring islands of the South Pacific: http://en.wikipedia.org/wiki/Australasian. It is popularly used to refer collectively to Australia and New Zealand.Google Scholar
2 The Court of Appeal is one NZLII's earliest data sources, having supplied decisions to AustLII since 1998. The Court, http://www.courts.govt.nz/courts/-court_of_appeal.html, is often, in practical terms, the appellate court of last resort for both criminal and civil matters, since an appeal to the Privy Council (prior to mid 2004) or to the New Zealand Supreme Court (from mid 2004) must be by leave.Google Scholar
3 The state of public access had been described in 1998 in these terms: “…New Zealand is resigned to offering the majority of the population a level of public access to its common law that is of a 3rd world standard”: J Treadwell Electronic New Zealand case law: the options, Challenges to Tradition: Law and Knowledge for the New Millenium, Auckland, 1998. By 2002, the situation was no better. As M Greville described it in An Introduction to New Zealand Law & Information <http://www.llrx.com/features/newzealand.htm>: “There is an inexorable drive toward the web in most areas of New Zealand legal information, and strong competition between publishers in this matter. Unfortunately this does not always lead to free sources of primary or secondary legal information. There is no ‘magic bullet’ – no single web site where you can hope to pick up information for free. … New Zealand has embraced ‘the user pays’ philosophy perhaps a little too enthusiastically in this regard.”:+“There+is+an+inexorable+drive+toward+the+web+in+most+areas+of+New+Zealand+legal+information,+and+strong+competition+between+publishers+in+this+matter.+Unfortunately+this+does+not+always+lead+to+free+sources+of+primary+or+secondary+legal+information.+There+is+no+‘magic+bullet’+–+no+single+web+site+where+you+can+hope+to+pick+up+information+for+free.+…+New+Zealand+has+embraced+‘the+user+pays’+philosophy+perhaps+a+little+too+enthusiastically+in+this+regard.”>Google Scholar
4 The British and Irish Legal Information Institute <http://www.bailii.org/uk/-cases/UKPC/> hosts British and Irish case law & legislation, European Union case law, Law Commission reports, and other law-related British and Irish material.+hosts+British+and+Irish+case+law+&+legislation,+European+Union+case+law,+Law+Commission+reports,+and+other+law-related+British+and+Irish+material.>Google Scholar
5 The permanent PAL website <http://www.legislation.govt.nz/> was publicly launched in January 2008, the project having begun in 1998. The website offers Acts, regulations, bills and supplementary order papers in browse and search modes with results being downloaded as .pdf files. The process of ‘semi officialising’ the content (confirming the text as being “an accurate and authoritative version of the legislation”) is expected to take until 2012. The Parliamentary Counsel Office will then promote legislation to make the website an official legislation source: http://www.legislation.govt.nz/about.aspx#officiallegislation.+was+publicly+launched+in+January+2008,+the+project+having+begun+in+1998.+The+website+offers+Acts,+regulations,+bills+and+supplementary+order+papers+in+browse+and+search+modes+with+results+being+downloaded+as+.pdf+files.+The+process+of+‘semi+officialising’+the+content+(confirming+the+text+as+being+“an+accurate+and+authoritative+version+of+the+legislation”)+is+expected+to+take+until+2012.+The+Parliamentary+Counsel+Office+will+then+promote+legislation+to+make+the+website+an+official+legislation+source:+http://www.legislation.govt.nz/about.aspx#officiallegislation.>Google Scholar
6 The Supreme Court Act 2003 established the Court, which commenced hearings on 1 July 2004:http://www.legislation.govt.nz/act/public/2003/0053/-latest/DLM214028.html?-search=ts_act_supreme+court_resel&p=1&sr=1. Section 3 states the rationales for locating the highest appellate court within New Zealand: to recognize that it is an independent nation with its own history and traditions; to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history and traditions; and to improve access to justice.Google Scholar
7 Introduced in 2003, the Bill became legislation in 2006, finally coming into force on 1 August 2008. The Act, http://www.nzlii.org/nz/legis/consol_act/laca-2006265/, ended the legal profession's exclusive right to provide conveyancing services, provided a new disciplinary regime for both lawyers and conveyancers and made membership of the New Zealand Law Society no longer compulsory.Google Scholar
8 The copyright climate was also more favourable, unlike that which faced the short-lived Legal Information Institute of New Zealand (LIINZ), established in 1995 at Waikato University: see M Perry, Roadblocks to LIINZ - problems facing public access to New Zealand law, Law Via the Internet Conference, 1997, Sydney, 128–136 (cited in D Harvey A judicial perspective on public access to case law via the internet (2000) 2 UTS L Rev 110, 120. See also P Jones Legal Information Institute of New Zealand – site report: developments since March 1996 Law Via the Internet Conference, 1997, Sydney 137 – 143. Section 27(1) Copyright Act 1994 (in force on 1 April 2001 under the Copyright Act Commencement Order 2000 (SR 2000/245)) stated that no copyright exists in any of the following works, whenever made:Google Scholar
• (a) any Bill introduced into the House of Representatives:
• (b) any Act as defined in section 4 of the Acts Interpretation Act 1924:
• (c) any regulations:
• (d) any bylaw as defined in s 2 of the Bylaws Act 1910:
• (e) the New Zealand Parliamentary Debates:
• (f) reports of select committees laid before the House of Representatives:
• (g) judgments of any court or tribunal:
• (h) reports of Royal commissions, commissions of inquiry, ministerial inquiries, or statutory inquiries.
9 Several data sources are also individually published. For example, some decisions of the Supreme Court of New Zealand are hosted by the Ministry of Justice at http://www.courts-ofnz.govt.nz/from/decisions/judgments and can be downloaded as .pdf files. The Judicial Decisions Online database, http://jdo.justice.govt.nz/jdo/Introduction.jsp, provides .pdf versions of most decisions of the Supreme Court, the Court of Appeal from 2003 and the High Court since 2005 (unless subject to suppression orders etc). The Parliamentary Counsel Office launched a legislation service, http://www.legislation.govt.nz/, in January 2008, offering searchable access to Acts, regulations and bills and delivering the results set as .pdf files.Google Scholar
10 See Table 1 for a description of coverage.Google Scholar
11 The New Zealand Law Foundation, http://www.lawfoundation.org.nz/, is an independent charitable trust established to provide grants for legal research, public education on legal matters and legal training. The Foundation has continued to support NZLII with 2009 funding of a project providing access to Accident Compensation decisions, hitherto publicly unavailable. In September 2010 it granted support for the building of a backset of decisions of the Environment Court, again previously unavailable to the public who often self-represent in this jurisdiction.Google Scholar
13 As a result of the way in which the Internet link developed, each New Zealand site is charged for international traffic both entering and leaving that site: M Carter & G Guthrie Pricing Internet: The New Zealand Experience (1994): http://www.econ.canterbury.ac.nz/downloads/nz-inter.pdf.Google Scholar
14 The Society http://www.lawsociety.org.nz/ was established by statute in 1869. The Lawyers and Conveyancers Act 2006 (supra at n 7) sets out its current regulatory and representative functions and powers.Google Scholar
15 The Auckland District Law Society chose to incorporate http://www.adls.org.nz/about-adls and provide its members with representative services independently of the NZLS. The NZLS has established an Auckland branch http://www.lawsociety.org.nz/home/branches/-auckland to provide the regulatory oversight it is responsible for under the Act and to also offer other NZLS services to Auckland practitioners who elect to remain members.Google Scholar
16 Under section 4 of the Act (above n 7) one of the fundamental obligations of a practising lawyer is “to uphold the rule of law and to facilitate the administration of justice in New Zealand”. Comprehensive access to primary sources of law would seem a necessary condition of the ability to comply with such a duty.Google Scholar
17 CanLII <http://www.canlii.org/> was launched in late 2001. Janine Miller, then Director of the Grand Library, took the idea of a virtual library to the Societies at a time when the Great Library was being sued for breach of copyright. That provided the impetus for CanLII's incarnation: Janine Miller, The Canadian Legal Information Institute – a Model for Success Legal Information Management, 8 (2008) 280 – 282.+was+launched+in+late+2001.+Janine+Miller,+then+Director+of+the+Grand+Library,+took+the+idea+of+a+virtual+library+to+the+Societies+at+a+time+when+the+Great+Library+was+being+sued+for+breach+of+copyright.+That+provided+the+impetus+for+CanLII's+incarnation:+Janine+Miller,+The+Canadian+Legal+Information+Institute+–+a+Model+for+Success+Legal+Information+Management,+8+(2008)+280+–+282.>Google Scholar
18 Section 362 of the Lawyers and Conveyancers Act 2006 provided for dissolution of the District Societies by operation of law, unless those Societies chose to incorporate and become independent of the NZLS. All but one of the 14 District Societies ceased to exist on 31 January 2009 and now have reduced status as non-autonomous branches of the NZLS.Google Scholar
19 A Law Library Board was established by the NZLS to manage the transfer process and to oversee the transition period. The Auckland District Law Society Inc., while maintaining its separate identity, agreed to fold its library into the national service: http://www.odt.co.nz/news/-national/41715/auckland-law-society-odds-with-national-body.Google Scholar
20 The principal commercial publishers are LexisNexis(NZ) Ltd (owned by Reed Elsevier), Thomson Brookers (owned by Thomson group) and CCH New Zealand (owned by Wolter Kluwer). Therefore there is no longer a New Zealand owned publishing arm for value-added legal information.Google Scholar
21 The Institute http://www.paclii.org/ provides coverage of 20 jurisdictions, some of which also depend on New Zealand judicial decisions as a source of law: American Samoa, Cook Islands, Commonwealth of Northern Mariana Islands, Federated States of Micronesia, Fiji, Guam, Kiribati, Marshall Islands, Nauru, Niue, New Caledonia, Palau, Papua New Guinea, Pitcairn Islands, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu. PacLII receives ongoing funding from New Zealand's International Aid and Development Agency (NZAID).Google Scholar
22 The E-government work plan http://www.e.govt.nz/ focuses on standards, informational management guidelines and accessibility of governmentally produced information. For the project's rationale and history, see http://www.e.govt.nz/-resources/research/public-sector-2004/index.html. The New Zealand Government Open Access and Licensing framework (NZGOAL) was approved by Cabinet on 5 July 2010 and relates to state agencies releasing material to third parties for re-use: see http://www.e.govt.nz/policy/nzgoal.Google Scholar
23 Governmental portal to get a makeover, New Zealand Herald, January 24 2008. http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&object-id=10488373.Google Scholar
24 See http://unpanl.un.org/intradoc/groups/public/documents/UN/UNPAN-028607.pdf for a copy of the 2008 Report. The quote appears at p 167.Google Scholar
25 Supra, n 9.Google Scholar
26 For a review of the role of the Parliamentary Council Office and the drafting and publication of legislation, see http://www.pco.parliament.govt.nz/role-of-the-pco/.Google Scholar
27 The New Zealand government portal http://newzealand.govt.nz/browse/law-justice/ does provide search ability across all the websites to which it provides a link, but does not display the documents it locates with key word in context functionality, when the document is itself accessed.Google Scholar
28 Aspects of this debate were rehearsed in New Zealand as recently as 2005 during the passage of the New Zealand Council of Law Reporting Amendment Bill that provided for reporting decisions of the Supreme Court of New Zealand, established in 2004. See (2005) 625 NZPD 20619; (2005) 629 NZPD 1768; (2005) 630 NZPD 2471.Google Scholar
29 The “efficiency” argument was the effective basis of the House of Lords’ limiting the use of unreported decisions of the English Court of Appeal in Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192. In England and Wales this led to Practice Directions in both civil and criminal jurisdictions to avoid what Lord Bingham memorably described as “The quick, effortless and relatively inexpensive availability of vast new swathes of material hitherto inaccessible. unorganized, unfiltered, unedited, presents a very real risk to the system which may …simply succumb to the weight of the materials presented”: First Symposium on Law Reporting, Legal Information and Electronic Media in the New Millenium, Cambridge 2000, published at http://www.lawreports.co.uk/17march.htm.Google Scholar
In 2009 the problem was again raised, this time in the English Court of Appeal in R v Erskine; R v Williams [2009] EWCA Crim 1425; [2009] WLR (D) 241. The judgment served notice that firm measures were necessary to prevent an “impending crisis” rather than a “plaintive lament against what has become an irreversible process” [74]. The Court reiterated its adherence to its criminal practice direction guidelines and indicated that the court would be unlikely to look at authorities that merely illustrate or restate a principle [78]. Such “no citation” approaches have been criticised for their unsupportable effect on stare decisis, their conflict with the duties of counsel to the court to advise of all relevant cases, including those that are unfavorable, and their enforcement difficulties. For a recent overview, see C Best, Everything old is new again: the proliferation of case law and whether there is a remedy, 2007, http://legalresearch.org/docs/-process1.html, presented to the Canadian Judicial Council.Google Scholar
At the US federal level, prohibition on or restriction of citation of unpublished dispositions is no longer permitted for decisions issued after 1 January 2007: Fed R App P 32.1. Enforcement difficulties largely prompted the Supreme Court of Victoria, Australia, to revoke its practice note which mirrored the Roberts Petroleum approach and to substitute the requirement to notify opposing counsel and to supply a copy to the court and to counsel: Practice Note 1 of 2006 (2006) 14 VR 529. In New Zealand, appellate courts in civil matters require the authority bundle consist “only of the authorities that the applicant considers essential to the applicant's argument”: Supreme Court Rules 2004, r 23; Court of Appeal (Civil) Rules 2005. The Court of Appeal (Criminal) Rules 2001, r 20 is more redolent of the English approach: “… only cases to which counsel intends to refer the court and to rely on for more than a general principle”. The different terminology may mirror the ebb and flow of argument on the issue.Google Scholar
30 R Berring Chaos, Cyberspace and Tradition: Legal Information Transmogrified, 12 Berkeley Tech L J 189 (1997) provides a wonderfully evocative motif for the discussion of the history of the development of online law repositories and their disruption of the print paradigm. Berring uses J M Barrie's character of Tinkerbell in Peter Pan to enliven the concept of “Tinkerbell status”, based on the premise that “if everyone believes a set [of legal data] is credible, it is credible”. (p 193). In New Zealand, the differing perceptions of authoritativeness of decisions as between the public and the courts and the need for the courts to offer some guidelines about “authoritative sources” is discussed in D Harvey, A Judicial Perspective on Public Access to Case Law on the Internet, 2 UTS L Rev 110 (2000).Google Scholar
31 C Germain, Digitizing the World's Laws: Authentication and Preservation World Library and Information Congress: 76th IFLA General Conference and Assembly, Sweden, 2010. The article discusses an empirical study of 192 countries. Republished at http://blog.law.cornell.edu/-voxpop/.Google Scholar
32 Whatever the strict legal position on authentication, market based online services may rely on their general commercial reputation to provide trustworthiness for their data; free access services may need time to establish credibility since they have no “gatekeeper” status on which to rely: J Joergensen, Authentication of Digital Repositories (2009) http://blog.law.cornell.edu/vox-pop/2009/05/14/authentication-of-digital-repositories/.Google Scholar
33 Judicial Decisions Online offers versions of all decisions of the Supreme Court, all Court of Appeal decisions from 2003 and all High Court decisions from 2005 (except decisions subject to statutory prohibitions or orders prohibiting publication, decisions subject to time-limited suppression orders, memoranda and administrative minutes).Google Scholar
35 http://www.legislation.govt.nz/about.aspx#currentstatus: “The electronic versions of legislation on this website, and any legislation printed from this website: have no official status [and] are made available for information only and should not be relied on as the authoritative text.” See further, supra at n 5.Google Scholar
36 The Legislation Bill 2010 will confer ability on Chief Parliamentary Counsel to issue official electronic versions of legislation. The parliamentary Select Committee considering public submissions will report in November 2010: http://www.legislation.govt.nz/bill/government/2010/0162/latest/DLM2998515.html#DLM2998515.Google Scholar
37 See Illustrated Judgments, (2010) Poulin D: http://www.slaw.ca/2010/05/-25/illustrated-judgments/.Google Scholar
38 (2007) 550 U.S. 372, 375. The plaintiff's car was allegedly run off the road during a high-speed chase and he argued (unsuccessfully) this was unreasonable seizure under the Fourth Amendment.Google Scholar
39 District Court, Auckland, CR 08004505568-620, 23/06/10, Harvey J.Google Scholar
40 Justice Goes Digital, Otago Daily Times, 17 July 2010: http://www.odt.co.nz/lifestyle/-magazine/116124/justice-goes-digital. The decision contains an embedded video file and, in true Internet tradition, provides a link to the same video on You Tube – password protected and therefore not available for general searching.Google Scholar
41 New Zealand participated as a member of the Federal Council of Australasia from 1885 and participated in the 1890 conference and 1891 Convention leading up to federation, before declining to become a federated member. That involvement is still reflected in section 6 of the Constitution Act 1900 which states: “The States” shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called “a State”: http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/.Google Scholar
