The purpose of the Electronic
Courts and Tribunals Act 2016 is to enable and govern the use of electronic
technology in court and tribunal proceedings. It is overarching. All paper-based
processes in existing courts and tribunals may be interpreted as allowing
electronic processes.
The new Act’s provisions
The Electronic Courts and Tribunals Act is
posited upon the concept of functional equivalence – a theory which gives legal
recognition to recording systems and their validation in a format other than
paper. The Act in many respects reflects the principles that appear in the Electronic
Transactions Act 2002[1] which did not
apply to the court system.
A central focus of the legislation is upon
what is called a permitted document. The term ‘permitted document’ means a
document, including its associated process, in electronic form that is made by,
or for use in, a court or tribunal. The purpose of the legislation is to
facilitate the use of permitted documents in court and tribunal proceedings and
allow existing references in enactments to documents to include permitted
documents.
Not all documents are permitted documents
and the legislation at s
4(2) lists those that do not qualify. These are:
(a) a document given on oath or by affirmation:
(b) a
statutory declaration:
(c) a
will, a codicil, or any other testamentary instrument:
(d) a
power of attorney or an enduring power of attorney:
(e) a
negotiable instrument:
(f) any
notice required to be attached to any thing or left or displayed in any place:
(g) any
warrant or other instrument authorising entry into premises or the search or
seizure of any person or thing:
(h) any
other document specified by the Governor-General by Order in Council made on
the recommendation of the Minister:
(i) an
item specified in any of paragraphs (a) to (h) that is required to be served by
personal service.
The legislation effectively recognises that
verification and authenticity of information contained in these classes of
documents may only be provided by a tangible paper-based medium.
The Act does not mandate the use of
electronic documents, although certain classes of persons yet to be defined in
regulations may be required to use them.
The use of permitted documents requires the
consent of the person using them although consent can be inferred from conduct.
A person may not be compelled nor directed to use permitted documents. Thus,
unless a person consents to the use of permitted documents, it is paper by
default.
Where there are requirements for
information to be recorded or be given in writing, that information may be in a
permitted document as long as it is readily accessible and useable for
subsequent reference. This means that an electronic document must be accessible
in the sense that it is not in archived or backup format and can be accessed
presumably in native file format.
The legislation does recognise the dynamic
nature of digital information and the reality that multiple copies may be made
of a digital document that are identical to the ‘first’ or source copy.
A requirement that multiple copies of
information be provided is met by providing a single electronic version of a
permitted document,[2] and a
requirement to provide information in a manner that complies with a paper-based
form is met by a permitted document if information is readily accessible and
usable for subsequent reference.[3]
Authentication and signature requirements
provide a challenge for those used to verification of a document or its contents
by a physical kinetic act such as affixing a seal or sign manual. How is that
accomplished in a digital context?
Signature requirements for permitted
documents are addressed in s 16. An ‘electronic signature’ or verification must
adequately indicate the approval of the information and must be ‘as reliable as
is appropriate given the purpose for which, and the circumstances in which, the
signature is required’.
Importantly, electronic verification of a
document is subject to an exception when one is witnessing a document.
Witnessing requirements in a permitted document are met by an ‘electronic
signature’ if:
- the e-signature complies with the
requirements of s 16 - the e-signature adequately identifies the
witness and indicates that the signature or seal has been witnessed - the e-signature is ‘as reliable as is
appropriate given the purpose for which, and the circumstances in which, the
signature is required.’[4]
The rules relating to seals echo those dealing
with electronic signatures. It is to be noted that the requirements for
electronic signatures and seals refer to the issue of reliability. Section 19[5] sets out certain
presumptions as to reliability and an electronic signature is presumed to be
reliable if:
(a) the means of creating the electronic
signature is linked to the signatory and to no other person; and
(b) the means of creating the electronic
signature was under the control of the signatory and of no other person; and
(c) any alteration to the electronic
signature made after the time of signing is detectable; and
(d) where the purpose of the legal
requirement for a signature is to provide assurance as to the integrity of the
information to which it relates, any alteration made to that information after
the time of signing is detectable.
However, any other way of establishing
reliability is not excluded and may be used.
The Act also sets out rules for the
retention of permitted documents and[6] for the dispatch
and receipt of permitted documents.[7] These provisions
duplicate the provisions of the Electronic Transactions Act 2002. The filing
requirements[8] dispense with
the requirement that a document be filed in a particular office of the court
and allow for the filing of a permitted document at any place specified in the
regulations. In addition, the place for filing may be physical or electronic
and may be centralised or located within the jurisdiction of the court or tribunal.
Comment
Some important observations need to be
made.
Although the Act has commenced it is not
operative. Section 6 requires the Governor General by Order in Council made on
the recommendation of the Minister to specify the courts, tribunals or
particular jurisdictions of courts and tribunals to which the Act applies. As
matters stand, no such Order has been made. Once proper systems are in place to
handle electronic filing the necessary orders will be made.
Will the Act significantly change court
processes? Except for the changes to place of filing rules, things will largely
remain the same. This is because the legislation is imitative of existing
processes. Imitative use of technology preserves existing processes and
procedures but allows the same objectives to be achieved by electronic means.
On the other hand, the innovative use of technology allows for the introduction
of disruptive and different procedures and processes enabled by the new
technologies which ultimately result in a transformative and improved outcome.
If it was the intention of the legislature
to maintain the model of the paper-based court system and add a limited form of
digital communications in the form of permitted documents, the Electronic
Courts and Tribunals Act has succeeded.
But in reality the Act neither lives up to
its name nor its promise. It does not, as its name might suggest, create or
enable fully electronic courts or tribunals. The legislation maintains the
model of the paper-based court system and adds a limited form of digital
communications in the form of permitted documents. All the legislation does is
to imitate paper.
David Harvey is a former Judge of the
District Court in New Zealand. He is currently the Director of the New Zealand
Centre for ICT Law at the Faculty of Law, University of Auckland and has
written extensively on Law and IT topics.
