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Access

State has a national plan of action for Internet access

There is no “national plan of action” for Internet access. Instead, internet access policies are spread across a mix of infrastructure issues (including rollout of broadband and allocation of spectrum), concerns to ensure competitive markets, debates on access for specific groups (such as those in rural areas, disabled people and the elderly), and access to government services (such as open data and e-government). It could be said that, taken together, these form a broad set of actions for Internet access.

In 2012 the Web Index ranked New Zealand as 7th overall in the world for web growth, utility and impact . While New Zealand ranks 4th in institutional infrastructure and web content, and 3rd for social impact, it is ranked as low as 17th in the world for economic impact, and 15th for communications infrastructure. In the Asia-Pacific region, New Zealand ranks 1st, ahead of Australia, Singapore and Korea. As of 2010, Internet users in New Zealand were 83.01 per 100 people. In its 2013 report, Freedom House indicated that the government of New Zealand does not control or censor internet access, and that internet access is promoted through competitive pricing.59

Access to law and access to legal information

Freedom of expression encompasses access to information.60 We considered if access to information had any new, Internet specific, components and, if so, whether these could be objectively measured. We focused on the right to access legal information (primarily judicial decisions and legislation), about which Judge Harvey concluded:61

This right is a subset of the right to receive and impart information, but what is of significant importance is the nature of the information that is being imparted and received and that gives it a special quality within a general information communication right. It is information about the law – the rules that set the metes and bounds of behaviour in a society and that delineate and define the relationships between citizens and between citizens and the State.

Drawing on the work of Greenleaf, Mowbray and Chung62 who trace the evolution of free access to law principles in the Free Access to Law Movement (FALM) and the 2002 Montreal Declaration on Free Access to Law, Judge Harvey concluded that:

The Declaration takes the position its members republish legal information (for free access by users) as a matter of right, not because of some largesse of governments. This republication is the equivalent of ‘free speech’, even if from a user perspective the no-charge access to legal information could be regarded as equivalent to ‘free beer’. The authors argue that free access to law is also similar to other aspects of free speech in that it usually has to be fought for, both against governments and against commercial interests. Free access to legal information requires that it be ‘free from monopolies’, just as free speech has to prevail over the monopolies of intellectual property in some situations before it is genuinely free. Assertions of monopoly privileges as part of the publication of legal information are a recurring threat as technologies and publishing methods change. In addition, ‘free access’ must be substantially free from surveillance.63

From these principles it can be concluded that Free Access to Law On-line has two major elements. One is the obligation of the State to ensure that there is free access to legal information, but not necessarily to act as provider. The second is the criteria that define whether a provider is in fact providing free access to legal information. In the event that the State takes on the role of making the information available and acting as a provider, the two roles coalesce. An example of such coalescence can be seen in the New Zealand Legislation On-Line Website: http://www.legislation.govt.nz . In summary, new technologies:

  1. allow the opportunity to be fulfilled
  2. present the State with the means by which a society whose order is based upon the Rule of Law to make the rules available for minimal cost
  3. require the State to do so.

The State may fulfil its obligation that the new technology allows by:

  1. Making the raw data of the law available – the decisions of the Courts and up-to-date legislative material in the form of:
    1. Statutory instruments
    2. Regulations
    3. Rules made by officials under delegated rule making powers
  2. Enabling free access to legal information in public libraries via the internet and by way of dedicated terminals
  3. In time further enabling free access to legal information via the internet by dedicated terminals in public buildings such as post offices, government offices to which the public has access and shopping centres or shopping malls.

Greenleaf, Mowbray and Chung distilled thirty free access principles65 by which free access to legal information may be measured and assessed, and against which national performance of free access obligations to the law on the part of the State and providers can be tested.66 Judge Harvey notes that:67

The matrix also allows for an ongoing assessment of developments in performance and (hopefully) progress towards the accomplishment of this vital subset of the information right contained in the New Zealand Bill of Rights Act 1990 and in international instruments – a right capable of facilitation by the Internet and which occupies a significant place in the overall assessment of the state of Internet freedoms.

Detailed assessment of all 30 points in the matrix was not possible within the scope of this research, and further testing is desirable. However, our preliminary assessment is that New Zealand is not fulfilling its obligations to ensure access to legal information. On the one hand there is excellent access to legislation, via the Parliamentary online legislative website.68

However, there are significant gaps in the States’ obligations legal information on the Internet. Only some raw case-law data is available, for example, the decisions of the Court of Appeal are available from the New Zealand Legal Information Institute (NZLII)69 and the Australasian Legal Information Institute (AustLII).70 The decisions of the Supreme Court71 are also available from NZLII, AustLII and from the Supreme Court and Courts of New Zealand72 websites. Since 2006 a selection of High Court decisions, along with the decisions of a number of Tribunals have been made available by NZLII. Decisions of the New Zealand Supreme Court, Court of Appeal and High Court are also available via Judicial Decisions On-line73, but this site is impeded an inefficient search process that fails to present results in a comprehensible format.74

New Zealanders therefore have access to some legal information for free, but improvements are needed, particularly to secure access for those who cannot afford premium fee-paying services.75 New Zealand rates poorly in access to secondary legal information.


59 http://www.freedomhouse.org/report/freedom-world/2013/new-zealand-0

60 United Nations Human Rights Committee, General Comment 34 on Article 19 ICCPR.

61 Harvey, Judge David, “Free Public Access to Law and Primary Legal Information as an Aspect of Internet Freedom” (research essay, December 2012), 1.

62 Graham Greenleaf, Andrew Mowbray and Philip Chung “The Meaning of ‘Free Access to Legal Information’: A Twenty Year Evolution” presented to Law via the Internet Conference 2012, Cornell University, Ithaca USA October 2012 and available at http://ssrn.com/abstract=2158868 (references are to page numbers in the pdf copy from the SSRN site).

63 Ibid.

64 This has been accomplished by means of the Legislation On-Line site (www.legislation.govt.nz) The recently enacted Legislation Act 2012 provides for Parliamentary Counsel to make legislation available on-line and for free. In addition the Act states the on-line version has the status of an official copy which will be recognised without question in Court.

65 Greenleaf, et al, above n 38, p. 23.

66 Ibid, p 5.

67 Above n 12, p 10.

68 http://www.legislation.govt.nz

69 www.nzlii.org

70 www.austlii.edu.au

71 http://www.justice.govt.nz/supremecourt

72 http://www.courtsofnz.govt.nz

73 http://jdo.justice.govt.nz/jdo/Introduction.jsp

74 Harvey, above n 37, p 7-8.

75 Such as LexisNexis or Brookers.

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