New centre for ICT law will stand out from the crowd

The last time we spoke to Judge Harvey (about this time last year), he had just published a book based on his PhD. Entitled The Law Emprynted and Englysshed, it examined the legal and cultural impact of historical information technologies such as the printing press. He mentioned that he was approaching a significant birthday in 2016, and would be “retiring” at that point.

Judge Harvey

But, as anyone who knows Judge Harvey can attest, this is not a man who is likely to sit back and rest on his laurels – rather, he is someone who is always eager to share his wealth of knowledge and who has his eyes set on the next challenge.

“Sleep and slippers are not part of what I do. It was never going to be retirement for me,” he confesses.

Not only has Judge Harvey been working on a couple of new books – one entitled Collisions in the Digital Paradigm: Law and Rule-Making in the Internet Age, and the other a text on media law which he is co-authoring with Associate Professor Rosemary Tobin – he has also been teaching the “Law and Information Technology” undergraduate course at the University of Auckland’s Law School (something he has done for the past 16 years).

But this is still not enough to fill his plate. While he officially steps down from the bench in July, he has been using up accumulated leave for the past few months and has taken full advantage of that time to launch a new, dear-to-his-heart project. Having taken up abode in an office at the Law School, Judge Harvey is hard at work setting up the “New Zealand Centre for Information Communications Technology Law”.

The Centre is the realisation of discussions with Dean Andrew Stockley dating back some years. A first for New Zealand, Judge Harvey envisages the Centre as a specialist hub dedicated to information and communications technology law, with three major focuses – teaching, policy development, and, in the long term, the setting up of a fully-operational electronic moot court (more on that below).

First, we teach …

The first stage for the Centre will be to develop its teaching strand. In addition to the undergraduate course Judge Harvey currently teaches, it will offer Masters courses and modules for practitioners, which will allow for a more in-depth consideration of topics such as internet governance, internet speech regulation, the internet and access to law (including looking at online courts and online dispute resolution), and electronic evidence.

“I’d also like to see the Centre being able to assist the Institute for Judicial Studies,” Judge Harvey says. “I’ve already run courses for them on topics such as cyber crime, the judicial use of social media, and handling the media in court – the scope of the education programme could build on this and potentially be quite wide.”

A technology law “think tank”

The second focus for the Centre will be the development of policy and looking at new proposals for the use and regulation of information communications technology. One area which Judge Harvey hopes will be explored under this head is how the internet might be able to improve access to legal information for self-represented litigants.

“When a self-represented person is up against someone much more legally-knowledgeable, such as a lawyer or police officer, who knows their way around the battleground, there’s an inequality of arms. Judges can only go so far in helping.

“So we need to find out what is currently out there to assist self-represented litigants. Then, we want to look elsewhere (for example the UK and US) to see what they are doing. The next phase would be to consider what sort of and how much information should be made available for self-represented litigants (and whether making it available puts you within the scope of section 4 of the Lawyers and Conveyancers Act!). The third stage would be to work out how to deliver it.”

Work has already begun on one research project – a look at the implications and effect of the Harmful Digital Communications Act 2015 (HDCA). Other anticipated projects include reviews of the Telecommunications Act, the Privacy Act (“the difference between what the internet is capable of now compared to 1993 is huge”), and the Search and Surveillance Act (“there are considerable shortcomings in the rules and processes around computer search and seizure that need to be tidied up”).

Judge Harvey is keen to stress that any research projects, including those carried out in conjunction with the government or other organisations, will be strictly empirical and not entered into with pre-determined outcomes in mind.

“If the government or another organisation were to say ‘we would like you to look at this’ then that would be something we could do. But, just as when you make decisions as a judge, if people don’t like what you’ve got to say, you still have to say it if that’s what the evidence justifies.”

Next generation advocacy

And finally, described by Judge Harvey as “the jewel in the crown”, the establishment of an electronic moot court is the long-term plan and the thing that really gets him excited.

“Ultimately, we want to set up a fully-spec’ed electronic moot courtroom. I’m not just talking about lawyers coming along and hooking up their laptop, but having a ‘full experience’ of complete technological capability.”

Judge Harvey foresees that such a facility could assist a number of audiences. Citing the example of the electronic courtroom at the William & Mary Law School in Virginia (which he has visited and experienced first-hand), law students would obviously be among the first to benefit.

“They are the millennials, the digital generation – the idea of them going to court with a lever-arch file and a box of papers is ridiculous. We need to properly educate them as to how technology can be used in court. Law is an information-sharing profession – if you’ve got technology which can assist with that, you should be able to engage it. My aim is to create tech-savvy advocates.”

An electronic courtroom would also be useful for practitioners in terms of trialling out things like bringing witnesses in from remote locations, alternative ways of giving evidence, and different types of evidence-giving/recording technologies before they are put into practice in a real court.

“The facility would be a test-bed. It could be made available to practitioners and judiciary to try out new technologies (such as hologram technology) before they go live in court. It could even be used to try out having an electronic bench.”

While such a courtroom will take a while to get off the ground, Judge Harvey says it is “where we would like to go”. “The Centre itself will be unique in New Zealand but having an electronic moot court would make it unique in Australasia and probably even throughout the southern hemisphere.”

At the moment, work on the Centre is still in the preparatory stages. Judge Harvey anticipates that most of the next year will be “a building exercise” for the Centre – developing the physical location, fundraising and getting research underway. Next year will see the development of the postgraduate programme, and by 2018, Masters courses will be taught, initial research results will be coming out, and work towards an electronic moot court will hopefully be underway.

Judge Harvey sees the Centre not only as a resource for today’s lawyers, but something which will cultivate the use of technology for lawyers in years to come. “I’ve always wanted to, and indeed have been privileged to, work in the law,” he says. “In return, I have always tried to make myself available to do pro bono work, sit on committees, etc. This [the setting up of the Centre] for me, is part of that same ‘pay back’.”

For more information about the New Zealand Centre for Information Communications Technology Law, Judge Harvey is happy to be contacted at dj.harvey@auckland.ac.nz.

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