Enhancing access to justice in Australian courts using Web 2.0 applications
thesisposted on 28.03.2022, 23:10 authored by Jennifer K. Farrell
Digital access to justice is concerned with the provision of access to justice by courts using the innovative and disruptive technologies of Web 2.0, such as online social networks and virtual courts. While the use of such a digital pathway by the courts is relatively new, analysis at an early stage offers the opportunity to assess the extent to which such innovative technologies should be used in an online environment which is characterised by a heightened tension between access and privacy.The term, access to justice, generally can be applied to diverse legal concepts and remains for many an idealistic aspiration, one that is difficult to assess as a quantifiable concept, although recognised as a fundamental human right and an essential component of the rule of law. Digital access to justice is provided by innovative and disruptive technologies which have been seen to provide the solution to legal inefficiencies, although they have the capacity to facilitate the misuse of information and inadvertent disclosure of personal data. In such a context, a critical question is to what extent the innovative technologies of Web 2.0 should be used to enhance access to justice in the digital age. This is a normative question to which I have applied a framework of theoretical and empirical analysis, particularly qualitative analysis. The theoretical analysis of access to justice and the protection of privacy have placed technologies, such as online social networks and virtual courts, within the context of the current regulatory framework to determine to what extent change will be necessary. The empirical analysis has applied mixed methodologies of case studies to analyse the use of Twitter by the Supreme Court of Victoria and the use of a questionnaire to analyse eCourtroom by the Federal Court and the Federal Circuit Court of Australia, providing insight into the problems faced by courts in the use of Web 2.0 applications. While both quantitative and qualitative analysis have been used, the emphasis in my empirical research has been on qualitative analysis to provide the depth and detail required to answer the normative question, relying on mixed methodology to provide the validity and reliability required. iii This research fills a gap in the literature on the way in which Australian courts are engaging with innovative technologies to enhance access to justice. It has found that the limitations and boundaries on the use of new technologies have been set substantially by regulatory prudence on the part of the courts and the tension between providing both access and the protection of personal data. This tension can be resolved by recognition of the radical transformation in the information environment, by a reconceptualisation of privacy and by a change of focus from the incremental ex ante legal protection of privacy laws to a consideration of issues such as the 'right to be forgotten' and those more fundamental to the digital age. I have concluded that, although the use of Web 2.0 applications by Australian courts is currently limited, they have the capacity to enhance access to justice by providing efficiencies, cost savings and improved communication. It is an expectation in the digital era that the use of such applications is synonymous with open justice and direct dialogue with the community. I have recommended more comprehensive strategies to facilitate the extended use of Web 2.0 applications in the future to ensure that access and openness is achieved as well as the protection of personal data. This will require a proactive consideration by policy makers of the future role for the rule of law in a society faced with rule by technology.