Kerr, Duncan --- "Editorial: The interplay between technology and the law" [2017] PrecedentAULA 14; (2017) 139 Precedent 2

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THE INTERPLAY BETWEEN TECHNOLOGY AND THE LAW

By the Hon Justice Duncan Kerr

Technological advancements are already changing the way we do law – in practice and in the justice system. Australian lawyers cannot afford to remain ignorant of this changing environment.

Two years ago, Professor Richard Susskind OBE and Daniel Susskind published the ironically titled The Future of the Professions,^[1] and the Hon Tom Bathurst, Chief Justice of the Supreme Court of New South Wales, gave his speech ‘iAdvocate v Rumpole: Who will survive? An analysis of advocates’ ongoing relevance in the age of technology’. Both addressed our future. The former presented a convincing case that technology is likely to displace traditional professionals, the latter warned against Horace’s fatalism in the face of overwhelming and inevitable technological changes.^[2]

This timely edition of Precedent invites reflection and discussion on the future of our profession. Its premise is that rational foresight equips us with the best chance to embrace constructive change without undermining the foundations of our justice system.

Daniel Nguyen discusses the once unimaginable paperless trial. His analysis of two e-trials (Kilmore East Black Saturday and Great Southern class actions) leads us to contemplate virtual courtrooms.

Nicolas Kirby invites us to consider the prudent use of technology to benefit, rather than burden, the load of practitioners. His insights and experience of software, hardware and online services are complemented by Phillipe Doyle Gray’s discourse on the ‘7 pillars of digital security’. Doyle Gray proposes an ethical and practical framework for safeguarding electronically stored information.

Michael Mills and Julian Uebergang discuss how technology is already impacting on many aspects of legal service delivery, including electronic discovery, expertise automation, and outcome prediction. Their analysis of the way artificial intelligence is playing a role in the law links to Tania Sourdin’s enlightening article about the three levels of technology. While we may be growing familiar with supportive technology, disruptive and replacement technologies present new challenges. She reminds us, somewhat comfortingly, that not all decisions can ever be automated because the human contribution to decision-making, involving induction and intuition along with the capacity to assess social impacts, will remain our exclusive human domain.

Michael Douglas asks us to consider how open justice can adapt to the times in which we live. In this globalised and interconnected world, courts and lawyers face considerable challenges: how should we respond to a juror’s googling, or wikileaks subverting the efficacy of traditional suppression orders? How can open justice cope with a decline in traditional reporting of trials and the rise of blogging, and the assertion of ‘alternative facts’? Such is the potential of systems of information-sharing to disrupt the assumptions around which traditional court practice has developed.

The array of issues associated with digital evidence is tackled by Allan Watt. He suggests strategies, inter alia, for managing discovery of voluminous records and presenting computer forensics in court.

Owen Hayford prompts us to rethink what it means to ‘drive’. The self-driving car is no longer just a futuristic possibility. Automated systems may prove to be more competent drivers but they cannot be fail-proof. So where does that leave us in terms of liability in an accident? Who is driving? Hayford describes where our current laws are lacking but, optimistically, he concludes that those inadequacies can be overcome.

James Scheibner, on ‘open source licences’, reminds those who advise on intellectual property and copyright of the need to understand and advise appropriately on permissive and restrictive licensing in this developing area of law.

Each contributor to this edition both informs and reminds us to consider the interplay between technology and the law. Technology has brought change and will continue to do so. Its impact on our profession shows no sign of slowing. Our challenge is to grasp the opportunities that intelligent systems can offer for expanding access to justice and to resist those that do not, rather than passively permit ourselves to be left behind in the future’s wake.

Justice Kerr has been a judge of the Federal Court of Australia and President of the Administrative Appeals Tribunal since May 2012. Before his appointment, he practised as a barrister and served in the Commonwealth Parliament (1987-2010).

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^[1] R Susskind and D Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts, Oxford University Press, 2015.

^[2] The Hon T F Bathurst AC, ‘Advocate v Rumpole: Who will survive? An analysis of advocates’ ongoing relevance in the age of technology,’ (2015) 40 Aust Bar Rev 185.