Registration of Education Agents in India and Australia

The Indian government is reported to be drawing up laws for registering education agents sending Indian students abroad. Australian universities work through authorised education agents (such as agents for ANU), but currently education agents are not licensed in Australia. Perhaps Australian and India should draw up complementary legislation and have a common registration system for agents. It is not clear how regulations would cover students doing courses over the web. As an example students in India and China can do COMP7310: Green ICT Strategies at ANU without leaving home.

Federal Court Guidelines on e-Discovery

The Federal Court of Australia issued "The use of technology in the management of discovery and the conduct of litigation" 29 January 2009 (Practice Note No 17). Justice Teague might also consider these of use for his royal commission into the Victorian brushfires. The guidelines set out the use of electronic documents in court proceedings. This is intended to be used a significant number of the documents in a case are electronic (usually 200 or more) and so handling them electronically will speed up the process and lower costs.

The Practice Note cites document provided on the court web site for:

1. Default Document Management Protocol for 200 to 5,000 e-documents,
2. Advanced Document Management Protocol for more that 5,000 documents,
3. Pre-Discovery Conference Checklist
4. Pre-Trial Checklist
   
5. Glossary
   

Online Arbitration

In May 2008 I attended a conference on ICT Ethics. One of the speakers at the conferences was Phillip N. Argy. He is one of the new breed of global cyber arbitrators who decide who owns a web address. Phillip has a new web site, where he has listed some of his decisions. One of the more notable cases concerned the The Wiggles.

ps: One of the other speakers at the conference was Justice Michael Kirby. I asked him about how Australian lawyers would cope with the type of online arbitration used by WIPO. He joked that this might be a job for him when he retired from the bench. More seriously he commented that lawyers should look to technology to help with processes but some serendipity may be lost in the process.

Federal Court IT Guidelines Delayed until 2009

The Federal Court of Australia's "Guidelines for the Use of Information Technology in Litigation in Any Civil Matter" were due to be revised by 1 July 2008, but have now been delayed until 2009:

In 2007 the Federal Court commenced a comprehensive review of Practice Note No 17 with the assistance of a consultant, Ms Jo Sherman.

Following extensive consultations with litigants, legal practitioners and others, a draft Practice Note and related materials were finalised by Ms Sherman and referred to the Court's National Practice Committee in mid 2008.

These draft documents are now being reviewed by the Court in light of recent case management initiatives (including the legislative reforms in this area proposed by the federal Attorney-General) and further comments provided by litigants, legal practitioners and others with an interest in the use of technology in legal proceedings.

It is expected that a number of changes will be made to the documents, and that the final versions will be formally released in early 2009....

From: Review of Practice Note No 17 - Guidelines for the Use of Information Technology in Litigation in Any Civil Matter, Federal Court of Australia Practice News No. 59, October 2008

Federal Court of Australia guidelines on electronic discovery

The Federal Court of Australia is revising and extensively expanding its guidelines on e-Discovery: "Document Management, Discovery and the use of Technology in the conduct of Litigation" . The new guidelines were due to come into effect 1 July 2008, but appears to have been delayed for more consultation (latest draft is Revision 7, 1 July 2008). Until then the guidelines issued 20 April 2000 are being used: "Guidelines for the use of information technology in litigation in any civil matter".

Discovery is the process by which parties to a civil court case look for relevant information the other party may have. This used to involve a visit to an office and lost of photocopying. With e-discovery the emphasis is on searching electronic record archives, email and other databases. Rules are needed to prevent the legal process being swamped with irrelevant detail.

As well as the "Practice Note" itself, there is a checklist, glossary and two document management protocols. The Advanced Document Management Protocol (ADMP) is intended for where there are more than 5000 Documents expected:

1. PRACTICE NOTE 17 - As updated 30 June 2008
2. PRE-DISCOVERY CHECKLIST - As updated 30 June 2008
3. GLOSSARY - As Updated 30 June 2008
4. DEFAULT DOCUMENT MANAGEMENT PROTOCOL - As updated 30 June 2008
5. ADVANCED DOCUMENT MANAGEMENT PROTOCOL - As updated 30 June 2008

One Legal Knowledge Management System for the Australian Government?

The Department of Foreign Affairs and Trade has issued request for expressions of interest for a Legal Knowledge System. As with recruitment, there doesn't seem to be any good reason why all Australian Government agencies couldn't use the same software, if not the same system. It seems unlikely that legal issue would be handled differently in DFAT than in other agencies.

Category 43230000 - Software
Close Date & Time 11-Aug-2008 2:00 pm (ACT Local time)
ATM Type Expression of Interest

Description

DFAT is seeking Expressions of Interest for provision of a system and associated support services which will:

• provide workflow support for legal matters which enables the tracking, management and reporting of these matters, including external and Departmental actions and enquiries;
• provide storage, management and access to a range of legal knowledge and materials including templates (e.g. letters, contracts, deeds), precedents (e.g. past advice) and legal instruments. Access must include comprehensive search facilities; and
• provide an integrated system for legal activities, with a ‘portal’ or home page style entry point which includes links to external websites.

...

Frtom: EOI for the provision of Legal Knowledge and Matter Management System software and related support services, DFAT08-DID-028, Department of Foreign Affairs and Trade, 16-Jul-2008

Justice Kirby on Regulating Technology

Greetings from the evening session of ET GOVICT2008 conference. The speaker is Justice Michael Kirby, High Court of Australia on The Challenge of Regulating Contemporary Technology. He started by addressing the issue of HIV/Aids. He argued you can't simply regulate on a technical level, separate from culture and this applies to ICT. Justice Kirby commented that most lawyers are not interested in technology and science. He has been involved in bioethics with UNESCO , TELOS at the University of London. He also cited Roger Brownsword's new book Rights, Regulation, and the Technological Revolution.

He then discussed the different viewpoints on privacy issues between Europeans and and Americans in the OECD Principles for the Protection of Privacy and Transborder Flows of Personal Data. He argued that consensus is possible, even in such contentious issues. One problem with such principles he pointed out is that not long after the principles were defined, along came networked public computer systems making data widely available with few limits. The technology moves fast and principles need to keep up. He quoted from Roger Brownsword's book on the relative priorities of regulation of different technologies.

I asked the Justice how Australian lawyers would cope with the type of online arbitration process used by WIPO. He joked that this might be a job for him next year when he retires from the bench and more seriously commented that lawyers should look to technology to help with processes but some serendipity may be lost in the process. One example of a happy accident he mentioned was that research on disease in monkeys had lead to an AIDS vaccine (the recent failure of a trial of the vaccine did not diminish from the value of the attempt).

There is a transcript and video of a talk by Justice Kirby to the IIA in February when he covered some of the same issues.

eGovernment in Hong Kong

In his talk on Wednesday, Joeson Wong, a postgraduate researcher at UNSW's Cyberspace Law and Policy Centre, discussed eGovernment policies in Hong Kong.

Hong Kong has a Personal Data (Privacy) Ordnance (PDPO). It has a Digital 21 Strategy, which started after the 1997 Asian financial crisis and was revised in 1998, 2001, 2004 and 2008.

Joeson discussed the lack of a commonly accepted definition of what e-Government is and argued it is a new concept, multi-disciplinary and there are cultural differences in different countries. He distinguished between internal government processes and external interaction with the citizens effected by e-Government.

Initially the HK strategy was to put government information online, then provide government services on-line. The strategy then moved to quality and effectiveness, including efficiency of government processes. There is no aspect of community consultation or e-democracy in the strategy.

Since 2007 free WiFi hot spots have been installed. WiFi cameras are being installed in the MTR (Metro). Digital surveillance cameras are being installed in public housing estates (with records being kept by the housing authority). This seemed to stray from the topic, but Joeson seemed to be saying that the surveillance was being done under the cover of the e-Government strategy.

HK has a new government portal and new proposals to "review" (close down) non-online services. Joeson raised the issue of how citizens who are unable, or unwilling to use on-line services will cope. In Australia, one way this is addressed is via public libraries with web access. Another option popular in Japan and China is the use of mobile phones. New web appliances, such as those from ASUS built into a TV, may make a difference.

Digital smart card based certificates in Hong Kong have not been successful, after 10 years, with loss of 1.5 billion HK dollars lost. The project is being transferred to a private company after being run by the Post Office. Australian had a similar problem, but on a smaller scale, with Australia Post having a failed digital certificate service.

Joeson argued that eGovernment initiatives should be examined from a privacy perspective, with European style privacy principles.

As with Martin Backes' talk, I thought Joeson's analysis suffered from the assumption that "Government" was a useful quality label for online services. Services may be provided by government, by non-profit organizations or by for profit companies. All of these need a way for customers to assess the quality of the service and to be consulted on what should be provided.

One way to look at e-Government might be to examine the administration and provision of services for cluster housing, such as apartment buildings. At this level important services are delivered to citizens by a mix of government, non-profit and for profit organizations. A comparison between Australia, Germany, HK and China would be useful.

Australian domain name system for Germany?

In his talk on Wednesday, Martin Backes a postgraduate researcher at UNSW's Cyberspace Law and Policy Centre, proposed that Germany adopt Australia's web domain administration system. He also found some problems with the Australian system for .GOV.AU

Martin is doing a PHD on administering domain names, with a view to recommend changes for Germany, based on practice in Australia and other countries. He is mainly looking at domain names for local government. AN issue Martin sees with Germany is that it doesn't have a sub-level domain structure. As an example, there is no gov.de for government domains.

The German central registry, DENIC, is a non-profit, non-government entity, which is not contracted by government to provide the service, but is perceived by government as doing a good job. The registrar doesn't check ownership of business names or legality, but would become involved if informed the domain name is not appropriate (such as not registering Nazi terms which are banned under German law).

The German system contrasts with the Australia situation where there are four levels of domains names in some cases (www.council.state.gov.au), with names checked for legal rights and conflicts with other owners.

Martin used the example of local councils, which are a fourth level domain, under state government. As a result name conflicts are less likely, with councils in different states being able to have the same name. However, it is not clear exactly who is playing what role and what the dispute resolution process in the government case. This may be just a difference of approach in Australia, where governments don't make formal contracts and use a less formal approach to dispute resolution.

The German civil code (BGB) section 12 protects the use of names, but German courts took some time to recognize that domain names were names (not technical codes like phone numbers). The courts also needed to work out who should own a commonly used name like "Heidelberg", which is the name of a city, people and companies. The general rule is "first come first served", but with exceptions for well known persons (such as the company "Shell" being better known than any natural person with that name).

Martin on the whole seems to see the Australian approach as good. Apart from what word to use ("GOV" not being a German abbreviation).

But an issue I suggested he needs to addresse is if the association with government is a useful one. As an example, in Australia some services are provided by government and some by non-government services, such as water, power, telecommunications, medical services, security, garbage collection, education. There is also a fifth level of quasi-government in Australia for body corporates which run cluster housing; these may provide services such as roads, energy, garbage collection, parks and telecommunications, with their own governing bodies and office holders.

If the issue is how the citizen can work out if the web site is one providing quality services, then this is a separate one from if it is an official government service. It would be possible, for example, to have a certification scheme to endorse organizations, which could be expressed via the domain name.

What is a government service and what is private varies over time and from place to place. What might be interesting would be to compare how cluster housing is serviced and governed in Australia, Hong Kong, China and Germany, to see if there is commonality.

eGovernment in Germany, Hong Kong and Australia

The Cyberspace Law and Policy Centre at the Faculty of Law, UNSW, is having a free talk on eGovernment. Their previous talks on Internet law have been very good:

"Aspects of eGovernment in Germany, Hong Kong and Australia: Domain
names, privacy and more"

Speaker: Joeson Wong and Martin Backes

Date: Wednesday 6 Feb 2008
Time: 10-12 am
Venue: Theatre G23, ground floor, new Law Building, UNSW lower campus
URL: http://www.cyberlawcentre.org/2008/talks/seminar_egov.htm

This is a presentation of work in progress in relation to a number of
aspects of eGovernment, particularly domain names and privacy, as it
affects countries such as Germany, Hong Kong and Australia. Two
leading international postgraduate researchers, visiting from their
own countries, will present their current thinking on the specific
topics they have been most recently focused on, and a number of other
experts will join in the discussion to situate these developments in
the broader evolution of e-government and e-governance.

Joeson Wong and Martin Backes are postgraduate researchers at UNSW's
Cyberspace Law and Policy Centre, focusing on Hong Kong and Germany
respectively.

Entry is free. Coming from off Campus? If possible please RSVP to
feedback@cyberlawcentre.org.

Regards,
David

David Vaile
Executive Director
Cyberspace Law and Policy Centre
Faculty of Law, UNSW Sydney Australia

T: (02) 9385 3589
F: (02) 9385 1778
M: (0414) 731 249
E: d.vaile@unsw.edu.au
W: http://www.cyberlawcentre.org/

Company reports online by default

A little noticed legal change took place in 2007: companies can publish their annual reports online as the default option. The companies have to tell the shareholders they are doing this and give them the option of requesting a paper copy. But the default has changed from opting-out (say if you don't want a printed copy), to opt-in (say if you do want one). This should reduce paper consumption and transport costs.

... (1AB) For the purposes of paragraph (1AA)(a), a company, registered scheme or disclosing entity must, on at least one occasion, directly notify in writing each member that:

(a) the member may elect to receive, free of charge, a copy of the reports for each financial year, or a copy of the concise report for each financial year; and

(b) if the member does not so elect--the member may access the reports, or the concise report, on a specified web site; and

(c) if the member does so elect and the company, scheme or entity offers to send the report either as a hard copy or an electronic copy--the member may elect to receive the copy as either a hard copy or an electronic copy.

From: Corporations Legislation Amendment (Simpler Regulatory System) Bill 2007, 004-2005-2006-2007, The Parliament of the Commonwealth of Australia,
HOUSE OF REPRESENTATIVES