Federal Circuit Court – the “digital native”
The Federal Circuit Court is one of the few courts in the world that can be described as a ‘digital native’.[2] The label ‘digital native’ came from an article by Prensky[3] in 2001 ‘Digital Natives, Digital Immigrants’ where he discusses the failure of modern educators to meet the needs of children who are ‘digital natives’ as a result of children born in the last 30 years growing up in an increasingly media rich environment, and thus learning and thinking differently.[4] Whilst the phrase was coined by educationalists, we are also seeing different behaviours from lawyers and un-represented litigants who are digital natives, compared to digital immigrants. These behaviours, and the more general need to ‘democratise’ the law have driven changes made by the Federal Circuit Court from the ways in which the more traditional courts operate.
The effect of this difference in internal culture of the court is manifest in an IT culture that focuses upon structural changes effected by IT, rather than simply re-formatting information. The internet has provided a method by which case law can now be made truly accessible to the public, as of right, at a very modest cost. In this respect Professor Greenleaf has argued, since the mid 1990s, that:
… official bodies should accept that they have seven obligations in the provision of essential legal information if they are to give optimal support to the rule of law and other values:
1. Provision in a completed form, including additional information best provided at source, such as the consolidation of legislation, and the addition of catchwords (index terms) or even summaries to cases.
2. Provision in an authoritative form, such as use of court-designated citations for cases and (eventually) use of digital signatures to authenticate the versions distributed.
3. Provision in the form best facilitating dissemination, which should always now mean in electronic form, should in most cases be possible by email or more sophisticated forms of data delivery, and should be possible in a form facilitating conversion.
4. Provision on a marginal-cost-recovery basis to anyone, so that governments do not attempt to profit from the sale of public legal information, thereby creating artificial barriers to access to law.
5. Provision with no re-use restrictions or licence fees, subject only to such minimal restrictions as are necessary to preserve the integrity of published data.
6. Preservation of a copy in the care of the public authority, so that an archive of the data is preserved to enable greater competition whenever a new entrant wishes to publish the data, a whether or not the public authority publishes the data itself.
7. Non-discriminatory recognition of citations, so that Court-designated citations are not removed from “reported” cases, ending the privileged status of citations of “official” reports.[5]
In 2015, it seemed that it is only the seventh of these propositions that remains outstanding within Australia. It is this seventh principle that the Federal Circuit Court has achieved in the publication of its judgments and with its 2015 Practice Note with respect to the citation of its judgments and the use of judgments from other courts. This is a significant structural change to the culture of the law with respect to case law. I wish to address two important reasons for making this change, discuss the role of ‘Authorised Reports’ and then outline the details of how the change has been effected.
Read more here by Judge Grant Riethmuller
Brisbane / Gold Coast/ Sunshine Coast
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