In this series, we examine how digital technology is used in NSW courts to serve justice, as well as future trends in judicial technology.
We now explore future developments in legal technology. These technologies promise ‘digital justice’ – justice that is more efficient, effective, equitable and electronically-interconnected than before.
Legal technology must be accessible, affordable, reliable and secure. Technologies should be intuitive and user-oriented. They should encourage problem-solving, reducing legal costs and stress. Finally, they should enhance sustainability – reducing the need to print 1,000-page documents.
Legal Artificial Intelligence
Artificial Intelligence (AI), or ‘machine learning,’ describes computer systems that are able to perform tasks that normally require human intelligence. AI uses complex algorithms to review data and arrive at outcomes. AI technology has advanced over 50 years, but is quite new in law. Given courts’ enthusiasm for technology and extensive digital archives, along with the use of legal AI overseas (Canada, USA, etc.), it is only a matter of time until Australian courts adopt judicial AI.
Legal AI is an exciting, but complicated technological development. Commentators question, as Justice Kirby did in 1998, whether AI can actually “be programmed with the will to do justice”:
- Will AI have the legal authority to make binding decisions?
- How can justice be transparent and accountable if it is performed by complex, mechanical and unseen AI processes? A famous legal phrase applies here: “Not only must justice be done; it must also be seen to be done” (R v Sussex Justices  1 KB 256 at 259, per Lord Hewart CJ).
- How can complex, context-based legal language be translated into computer codes and commands?
- How can AI apply legal presumptions and court discretions?
- What happens if the law changes? Will AI produce an incorrect or illegal decision?
Given these complex issues, Justice Kirby’s 1998 assertion appears correct:
There is no chance that in a quarter century’s time judges … will have been replaced by … artificial legal intelligence.
Rather, the likely future of legal Artificial Intelligence is:
- Improving existing court databases. AI may be able to analyse text, compare the current matter with old cases, apply legal rules and make recommendations to human judges.
- If cases were actually decided by legal AI, it would probably be limited to lower courts and tribunals (e.g. the Local Court). AI could not deal with complicated Supreme and High Court cases.
- Give parties support and basic legal advice.
- Helping courts and lawyers to work effectively and efficiently, and reducing their workload.
NSW Online Court is likely to expand to most NSW court matters. Use of Online Court to resolve matters will be presumed, as recommended by the Productivity Commission.
Courts will increasingly use social media platforms (apart from Twitter) to engage the public directly, and instant messaging to help parties communicate.
Digital Data Storage
Courts and parties will continue using cloud computing technology to store, access and share information online. Blockchain technology is likely to be adopted, since it is safer and securer than the cloud.
- Allsop, James, ‘Technology and the Future of the Courts’ (Speech, University of Queensland, Special Lecture Series on Technology and the Future of the Legal Profession, 26 March 2019) <http://www.fedcourt.gov.au/__data/assets/pdf_file/0017/55520/Allsop-CJ-20190326.pdf>
- Kirby, Michael, ‘The Future of Courts: Do They Have One?’ (Speech, Judicial Conference of Australia, Third Annual Colloquium, Gold Coast, 8 November 1998) <https://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_future1.htm>
- Paver, Chris, ‘The Courts v Twitter: The Future of Live Court Reporting in NSW’ (2013) 31(1) Communications Law Bulletin 6.
- Perry, Melissa, ‘iDecide: Digital Pathways to Decision’ (Speech, Law Council of Australia 2019 CPD Immigration Law Conference, Canberra, 21-23 March 2019) <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-perry/perry-j-20190321>
- Productivity Commission, Access to Justice Arrangements (Inquiry Report No. 72, 2014)
- Ryan, Philippa and Maxine Evers, ‘Exploring eCourt innovations in New South Wales civil courts’ (2016) 5(1) Journal of Civil Litigation and Practice 65
- Sourdin, Tania, ‘Judge v Robot? Artificial Intelligence and Judicial Decision-Making’ (2018) 41(4) UNSW Law Journal 1114
- Sourdin, Tania, Bin Li and Tony Burke, ‘Just, Quick and Cheap? Civil Dispute Resolution and Technology’ (2019) 19 Macquarie Law Journal 17