Is LawTech which is the adaptation and adoption of digital technologies in legal practice a disruptive force within the legal profession?
Elizabeth Saddozai
Lawyer/Serious Incident Reporting Scheme (SIRS) Senior Officer
Introduction
LawTech is defined as ‘the adaptation and adoption of digital technologies to the legal practice’ which has been heralded as a disruptive force within the legal profession and legal services delivery.[1] Or alternatively, can it be suggested that the definition and statement of LawTech is highly dependent on the circumstance and situation. A critical evaluation will be done by examining two case studies. In early 2020 many legal practices had to adapt their daily operations because of state-wide lockdowns across Australia. One way of continuing daily operations was the adoption of LawTech in the form of work from home while utilising video conferencing. The first case study is focused on valid Will making during COVID-19 in Queensland. It examines the concept of access to justice and the various ways in which LawTech has enabled different law firms and legal professionals to adapt to the new working environment during COVID-19. The second case study is focused on the Centrelink Robo Debt and Administrative law. It examines the concept of the rule of law where there is the use of Automated Administrative Decision Making Services (AADMs)[2] used in government decision making to enhance fairness, review of decision making, and rationality.[3]
?What is LawTech?
For the purpose of this article, the definition of LawTech is defined as the ‘adaptation and adaption of digital technologies to the legal practice’[4] for which law firms incorporate and use to improve their processes and increase their efficiency and effectiveness.[5] Digital technologies in legal practice include, but are not limited to:
LawTech is focused on technologies that either support, supplement or replace traditional legal methods of delivering services.[11] Thus, to some extent creating a self-service application for the average person to engage and produce legal services without the expense and hassle of hiring firms.[12] A practicable example of LawTech that is used in delivering legal services is a software known as DocuSign. DocuSign is used for purchase contracts or sale contracts (i.e. land, house, car, building contract, etc.). The aim of DocuSign is to create a digital platform for law firms and legal professionals to sign, send and manage legally binding documents between themselves and their clients. DocuSign works by creating a template or form which can be signed using an electronic signature.[13] Another practicable example of LawTech that is currently being used to deliver legal service, is the use of electronic document lodgement which allows for lodgement of applications to the courts 24 hours a day 7 days a week. The electronic document lodgement is currently being used in:
What is access to justice?
It is important to understand that there are many different notions and definitions of what access to justice is. It is equally important, to acknowledge that the definition used to describe access to justice, is highly dependent on the circumstances in which it is being discussed. For the purpose of this article, the definition of access to justice will be broken down into its most simplistic form of ‘access’ and ‘justice’.
?Access is the ability, or the opportunity afforded to an individual or group of people to approach[18] or utilise something. Justice is what the individual or group of people may be seeking.[19] For example, fairness, resolution, punishment, etc. Based on this definition and the context of the case study concerning the changes made to accessing valid Will making during COVID-19, access to justice means getting the right information about Will making, how it applies to the interested individuals, and the consequences of making a Will during COVID-19. Further examples of access to justice can be found on the Law Council of Australia website under The Justice Project[20] section and on the Community Legal Centres Queensland website under Access to Justice.[21] Lastly, it is extremely important to emphasise that access to justice does not mean nor guarantee an outcome that is favourable to the individual or group of people.[22]
What is rule of Law?
It is important to understand and acknowledge that there are many different notions and definitions of what the rule of law is. The concept of the rule of law has been around for a very long time. Philosophers in ancient Greece such as Socrates, Plato, and Aristotle wrote about the consequences of not following the law, how the law applies to both individuals and society, and that the law should also apply to those who make and enforce the law.[23] At the same time in ancient China scholars, Han Fei Zi and Li Si composed literate expressing that the rule of law is to be well-defined for all individuals and published in a public place.[24]?As well as all are equal before the law and punishment should be given to those who break the law.[25] The rule of law was further expanded, theorised, and developed by Samuel Rutherford, John Locke, Montesquieu, and A.V. Dicey.?
?For the purpose of this article, the definition of the rule of law is broken down into two key elements. The first is that everyone is equal before the law and has a right to procedural fairness. The second is that there is accountability placed on the Australian Commonwealth government. Based on this definition and the context of the case study of the Centrelink Robo Debt, the rule of law will be examined as a breach of procedural fairness and that there was a lack of accountability on Centrelink’s part.
?Case Study 1 - LawTech and Succession Law: making a valid Will during COVID-19
The purpose of this case study is to critically evaluate whether or not the definition and statement about LawTech, can be proved or disproved by examining the notion of access to justice in relation to valid Will making during COVID-19. That is, ‘the adaptation and adoption of digital technologies to the legal practice’ which has been heralded as a disruptive force within the legal profession and legal services delivery.[26] Additionally, the case study will also explore the actual and potential use of LawTech on valid Will making during COVID-19.
With the first announcement that was made on 25th January 2020[27] about the sudden onset of a new kind of world pandemic known as COVID-19, legal professionals and the legal industry worldwide waited with abided breath about what kind of changes would be required. As COVID-19 was spreading rapidly, it was also identified that the people who were most at risk were First Nations People and the aging population (including but not limited to: anyone whose immune system was compromised, people who have neurological disorders, chronic illness, issues with blood pressure, etc.).?As the pandemic started to get worse it saw legal professionals and the legal industry worldwide implement emergency procedures.[28] The Queensland government realised that there was a real issue of access to justice for being able to make a valid Will during Covid-19. This concern saw the Queensland government implement the COVID-19 Emergency Response Bill 2020 (Qld) followed by the COVID-19 Emergency Response Act 2020 (Qld) and the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 (Qld).?As a result of this, in April of 2020, the Queensland Law Society implemented practice changes to valid Will making. This meant that legal professionals and practitioners could still offer services to their clients provided that they:[29]
A test as to the validity of the practice changes made during COVID-19 to valid Will making is noted in the most recent case of Re Sheehan [2021] QSC 89. In this case, it explored the questions of: 1) whether or not a valid informal Will was made, 2) whether or not the execution and witnessing of the Will was compliant with Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 (Qld) and 3) whether or not the court could dispense with formalities under section 18 of the Succession Act 1981 (Qld).
The case concerned Mr Stan Sheehan (an elderly man) who had given instructions to his lawyer (Ms Cornford-Scott) to prepare his Will and Enduring Power of Attorney. Mr Sheehan and Ms Cornford-Scott relied upon the newly introduced COVID-19 legislation to execute the documents and conduct witnessing via an audio-visual link - Zoom. An issue arose when documents were delivered to Ms Cornford-Scott’s office. It was discovered that Mr Sheehan had not signed one page of the document. Ms Cornford-Scott quickly notified Mr Sheehan and his friend of the unsigned page. She also made further attempts to follow up and rectify the issue but had been unsuccessful. Mr Sheehan died without signing the missing page. An application was made to the Court requesting to dispense with formalities. Justice Burns ruled that the Will was indeed a valid informal Will and that the recordings presented to the court showing the important parts of the process for the Will making did comply with execution and witnessing of the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 (Qld).
This case study has proven that the statement and definition of LawTech, ‘the adaptation and adoption of digital technologies to the legal practice’ which has been heralded as a disruptive force within the legal profession and legal services delivery,[31] to be untrue. The actual use of LawTech technologies has demonstrated that during this time of uncertainty it does play a functional role in helping individuals to access justice, especially for valid Will making during COVID-19. However, it is unknown at this stage as to what role potential LawTech technology will play in the future for facilitating valid will making. Further research will be required (cases studies and empirical data) both domestically and internationally to form some kind of conclusion. This is beyond the scope of this article.
Case Study 2 - LawTech and Centrelink Robo Debt
The purpose of this case study is to critically evaluate whether or not the definition and statement about LawTech, can be proved or disproved by examining the notion of the rule of law in particular to procedural fairness of the Centrelink Robo Debt.
?The Centrelink Robo Debt embarrassment was a joint effort by the Department of Human Services and Centrelink in 2017. The aim was to use an automated administrative decision making system (AADMS) to replace the existing manual process and review system for debt recovery. It was hoped that the AADMS would do an income match with the Australian Taxation Office (ATO) income data matching[32] system to detect any possible income discrepancies between income that was declared to Centrelink and income that was reported on PAYG at tax time. However, the reality of the AADMS and ATO’s income data matching system left Centrelink in a predicament that resulted in the creation of a phenomenal number of “excessive debt assessments.” This is money owed to Centrelink due to a person’s supposed incorrect reporting of income.[33] The debacle resulted in the general public taking the issue to the media[34] because people felt that Centrelink could not handle the increasing number of complaints about the new system.[35] Due to the media coverage, the Commonwealth Ombudsman conducted an investigation into Centrelink Robo Debt.
?The investigation found that the Centrelink Robo Debt had disregarded the central principle of procedural fairness.[36] That is ensuring that individuals, groups of people, businesses, or corporations obtain a fair decision from the government, government departments, or government agencies.[37] As well, the fair decision is to be made free of any bias.[38] It was also discovered that the AADMS?created a situation where there was reverse onus[39] placed upon a person to prove that the debt was incorrect. For example, it could require a person to provide employment details, payslips, PAYG, or bank statements that could be related to income from many years ago.[40] The reverse onus requirement meant that people were not aware or notified in time to produce records.[41] Furthermore, it is general knowledge that people do not necessarily keep records of that nature for long periods of time.[42]
?From an administrative law point of view, it was found to infringe upon the administrative law principle of a right to adequate prior notice of matters to be investigated. Additionally, the AADMS did not follow nor comply with the logical framework as set out in legislation.[43] The ADDMS had created deviations by: 1) establishing the correct factual information and supplying evidence was now the responsibility of the individual, [44] 2) all employment information (past and present) and income was to entered by the individual,[45] and 3) if the information was not entered in the allocated time, then the AADMS would use the ATO income data matching system.[46] Under administrative law, these derivation decisions are considered unreasonable because of non-compliance with the logical framework as set out in legislation.[47] Furthermore, administrative law allows the right to challenge or apply for a review of a decision made by the government, government departments, or government agencies.[48] Lastly, it was found by the Commonwealth Ombudsman during the investigation, that the review process was confusing and that there was no important information given about how to start a review process of the AADMS.[49]
?A test as to the validity or violation of procedural fairness was explored in the case of Amato v Commonwealth (Federal Court of Australia, VID611/2019, 27 November 2019). In this case, it questioned the lawfulness and validity of the Centrelink Robo Debt.
?The case concerned Ms Deanna Amato who received a demand for payment in March 2018 and again in March 2019. The debt was raised in relation to Ms Amato’s income from the 2012 financial year. The AADMS and the ATO’s income data matching system determined that Ms Amato had received a social security benefit payment that she was not entitled to. Upon close examination of the issue, it was found that the debt had been created by averaging Ms Amato’s income over the period for which she was employed. The finding, in this case, was that the Centrelink Robo Debt was unlawful because it had violated procedural fairness on the grounds that the averaging of a person’s income over their employment period was not a fair decision that was free from bias.
This case study has proven that the statement and definition of LawTech, ‘the adaptation and adoption of digital technologies to the legal practice’ which has been heralded as a disruptive force within the legal profession and legal services delivery,[50] to be true. The actual use of LawTech technologies has demonstrated that it is neither a support nor supplement nor replacement for traditional legal methods of delivering services.[51] However, that does not mean that there is no future protentional use of LawTech for AADMS if this case study is used as an example for improvement to build upon.
?Conclusion
In conclusion, this critical evaluation of the statement and definition of LawTech, ‘the adaptation and adoption of digital technologies to the legal practice’ which has been heralded as a disruptive force within the legal profession and legal services delivery,[52] has been proven by the above two case studies to be highly dependent on the area of law, the situation, the facts, and the circumstances. LawTech can be a very powerful tool in the legal industry. But before any sort of implementation, the purpose and objective should be carefully defined. As well as the situation should be carefully evaluated with human oversight.
References
[1] Lisa Webley et al, ‘The Profession(s) Engagements with LawTech: Narratives and Archetypes of Future Law’, (2019) 1(1) Law, Technology and Humans, 6, 6. https://doi.org/10.5204/lthj.v1i0.1314.
[2] Karen Lee and Ellen Rock, The Impact of Information Technologies Upon the Teaching of Administrative Law (Report, Ethics Reference No CP01045, December 2019), 5.
[3] Monika Zalnieriute,?Lyria Bennett Moses, and George Williams, ‘The Rule of Law and Automation of Government Decision‐Making’ (2019) 82(3) Modern Law Review 425,454.
[4] Lisa Webley et al, ‘The Profession(s) Engagements with LawTech: Narratives and Archetypes of Future Law’, (2019) 1(1) Law, Technology and Humans, 6, 6. https://doi.org/10.5204/lthj.v1i0.1314.
[5] Marcelo Corrales et al, ‘Digital Technologies, Legal Design and the Future of the Legal Profession’ (2019) Legal Tech, Smart Contracts and Blockchain; Kate Galloway et al, ‘The Legal Academy’s Engagements with Lawtech: Technology Narratives and Archetypes as Drivers of Change’ (2019) 1(1) Law, Technology and Humans 27.
[6] Amazon Web Services, ‘What is cloud computing?’, ?What is cloud computing (Website, 2020) <https://aws.amazon.com/what-is-cloud-computing/>.
[7] Microsoft, ‘What is Azure?’, What is Azure? (Website, 2020) < https://azure.microsoft.com/en-au/overview/what-is-azure>.
[8] Google, ‘Google Cloud Overview’, Overview (Online Document, 16 September 2020) < https://cloud.google.com/docs/overview#top_of_page>.
[9] Amazon Web Services, ‘What is cloud computing?’, ?What is cloud computing (Website, 2020) <https://aws.amazon.com/what-is-cloud-computing/>.
[10] Karen Lee and Ellen Rock, The Impact of Information Technologies Upon the Teaching of Administrative Law (Report, Ethics Reference No CP01045, December 2019), 5.
[11] C. M. Harper and S. S.?Zhang, ‘Legal Tech and Lawtech: Towards a Framework for Technological Trends in the Legal Services Industry’ (2021)?Market Engineering: Insights from Two Decades of Research on Markets and Information 183, 184.
[12] Patrick Szakiel, ‘What Is Legal Tech? (How It's Changing the Legal Industry)’ What Is Legal Tech? (How It's Changing the Legal Industry) (Blog, 11 June 2019) < https://www.g2.com/articles/legal-tech>.
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[13] Electronic Transaction Act 1999 (Cth) s 10; Electronic Transaction Act 2001 (Qld) s 14.
[14] Queensland Courts, ‘Electronic lodgement (eLodgement)’ Electronic lodgement (eLodgement) (Web Site, 2011-2021) <https://www.courts.qld.gov.au/court-users/practitioners/electronic-lodgement-elodgement#:~:text=eLodgement%20is%20a%20service%20that,through%20an%20approved%20service%20provider>.
[15] Queensland Courts, ‘Electronic lodgement (eLodgement)’ Electronic lodgement (eLodgement) (Web Site, 2011-2021) < https://www.courts.qld.gov.au/services/wills-and-probate/electronic-lodgement-by-practitioners>.
[16] Family Court of Australia, ‘Commonwealth Courts Portal’ How do I eFile? (Web Site, 22 June 2020) < https://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/how-do-i/ccp/electronically-file-application/fcoa-hdi-efile >.
[17]Federal Circuit Court of Australia, ‘Commonwealth Courts Portal’ How do I eFile? ( Web Site,?19 November 2018) <https://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/ccp/electronically-file/>.
[18] Productivity Commission: Access to Justice Arrangements (Inquiry Report,?5 September 2014) vol 1, 74.
[19] Ibid, 75.
[20] Law Council of Australia, ‘Access to Justice’, The Justice Project (Web Page) <https://www.lawcouncil.asn.au/justice-project/access-to-justice>.
[21] Community Legal Centres Queensland, ‘Access to Justice’, Access Justice and Courts Web Page, 2021) < https://www.communitylegalqld.org.au/policy/access-justice-and-courts/>.
[22] Productivity Commission: Access to Justice Arrangements (Inquiry Report,?5 September 2014) vol 1, 75;?Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Report No 89, December 2000), 90. <https://www.alrc.gov.au/wp-content/uploads/2019/08/ALRC89.pdf>.
[23] Michelle Sanson and Thalia Anthony, Connecting with law (Oxford University Press, 3rd ed, 2014), 119.
[24] Ibid.
[25] Ibid.
[26] Lisa Webley et al, ‘The Profession(s) Engagements with LawTech: Narratives and Archetypes of Future Law’, (2019) 1(1) Law, Technology and Humans, 6, 6. https://doi.org/10.5204/lthj.v1i0.1314.
[27] Department of Health (Cth), ‘First confirmed case of novel coronavirus in Australia’ (Media Release 25 January 2020). <health.gov.au/ministers/the-hon-greg-hunt-mp/media/first-confirmed-case-of-novel-coronavirus-in-australia>.
[28] Kelly Purser et al , 'Wills Formalities beyond COVID-19: An Australian-United States Perspective' (2020) 5?University of New South Wales Law Journal Forum?1; David Horton and Reid Kress Weisbord, ‘COVID-19 and Formal Wills’ (2020) 73 (May) Stanford Law Review Online 18, 19, 22; Uniform Electronic Wills Act (Uniform Law Commission, 2019); Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW).
[29] Queensland Law Society, Practice Note for Queensland practitioners taking will and enduring power of attorney instructions during COVID-19, 29 October 2020; Queensland Law Society, Tips for assessing capacity via video conferencing during COVID-19, April 2020; Queensland Law Society, Practice Management for video conferencing, 6 November 2020; Supreme Court of Queensland, Practice Direction No 10 of 2020: Informal Wills/COVID-19, 22 April 2020.
?[30] Electronic Transaction Act 1999 (Cth) s 10; Electronic Transaction Act 2001 (Qld) s 14.
[31] Lisa Webley et al, ‘The Profession(s) Engagements with LawTech: Narratives and Archetypes of Future Law’, (2019) 1(1) Law, Technology and Humans, 6, 6. https://doi.org/10.5204/lthj.v1i0.1314.
[32] Data Matching Program (Assistance and Tax) Act 1990 (Cth).
[33] Louise MacLeod, ‘Lessons Learnt About Digital Transformation and Public Administration: Centrelink’s Online Compliance Intervention’ (2017) 89 Australian Institute of Administrative Law, 59, 59; Monika Zalnieriute,?Lyria Bennett Moses, and George Williams, ‘The Rule of Law and Automation of Government Decision‐Making’ (2019) 82(3) Modern Law Review 425,436; Matthew Butt, ‘Administrative law and Centrelink’s “robodebt” system’ Australian Public Law (Blog Post, 8 March 2017) < https://auspublaw.org/2017/03/centrelinks-robodebt-system/>.
[34] Heidi Pett and Colin Cosie, ‘We're all talking about the Centrelink debt controversy, but what is 'robodebt' anyway?’, ABC News (online, 3 March 2017) <https://www.abc.net.au/news/2017-03-03/centrelink-debt-controversy-what-is-robodebt/8317764>; Matthew Butt, ‘Administrative law and Centrelink’s “robodebt” system’ Australian Public Law (Blog Post, 8 March 2017) < https://auspublaw.org/2017/03/centrelinks-robodebt-system/>.
[35] Louise MacLeod, ‘Lessons Learnt About Digital Transformation and Public Administration: Centrelink’s Online Compliance Intervention’ (2017) 89 Australian Institute of Administrative Law, 59, 59; Matthew Butt, ‘Administrative law and Centrelink’s “robodebt” system’ Australian Public Law (Blog Post, 8 March 2017) < https://auspublaw.org/2017/03/centrelinks-robodebt-system/>.
[36] Community Affairs References Committee, Parliament of Australia, Centrelink's compliance program (Second interim report, 1 September 2020), 15, [2.2].
[37] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Isbester v Knox City Council [2015] HCA20.
[38] Ibid.
[39] Peter Hanks, ‘Administrative Law and Welfare Rights: A 40-Year Story from Green v Daniels to “Robo Debt Recovery” ‘ (2017) 89 Australian Institute of Administrative Law Forum 1, 9-11; Monika Zalnieriute,?Lyria Bennett Moses, and George Williams, ‘The Rule of Law and Automation of Government Decision‐Making’ (2019) 82(3) Modern Law Review 425, 436.
[40] Matthew Butt, ‘Administrative law and Centrelink’s “robodebt” system’ Australian Public Law (Blog Post, 8 March 2017) < https://auspublaw.org/2017/03/centrelinks-robodebt-system/>.
[41] Re Macquarie University: Ex parte Ong (1989) 17 NSWLR 113.
[42] Amie Meers et al, ‘Lessons learnt about digital transformation and public administration: Centrelink’s online compliance intervention’(Paper, July 2017), 10 <https://www.ombudsman.gov.au/__data/assets/pdf_file/0024/48813/AIAL-OCI-Speech-and-Paper.pdf>.
[43] Robin Creyke et al, ‘Administrative law: Theory, History and Context’ (5th ed), Control of Government Action (Lexis Nexis Butterworths, 2019) 23, [1.3.20].
[44] Louise MacLeod, ‘Lessons Learnt About Digital Transformation and Public Administration: Centrelink’s Online Compliance Intervention’ (2017) 89 Australian Institute of Administrative Law, 59,60; Department of Human Services, ‘Operational Blueprint 107-02040020 — Acceptable documents for verifying income when investigating debts’.
[45] Ibid.
[46] Ibid.
[47] Robin Creyke et al, ‘Administrative law: Theory, History and Context’ (5th ed), Control of Government Action (Lexis Nexis Butterworths, 2019) 23, [1.3.20].
[48] Ibid, [1.3.18].
[49] Louise MacLeod, ‘Lessons Learnt About Digital Transformation and Public Administration: Centrelink’s Online Compliance Intervention’ (2017) 89 Australian Institute of Administrative Law, 59,6.
[50] Lisa Webley et al, ‘The Profession(s) Engagements with LawTech: Narratives and Archetypes of Future Law’, (2019) 1(1) Law, Technology and Humans, 6, 6. https://doi.org/10.5204/lthj.v1i0.1314.
[51] C. M. Harper and S. S.?Zhang, ‘Legal Tech and Lawtech: Towards a Framework for Technological Trends in the Legal Services Industry’ (2021)?Market Engineering: Insights from Two Decades of Research on Markets and Information 183, 184.
[52] Lisa Webley et al, ‘The Profession(s) Engagements with LawTech: Narratives and Archetypes of Future Law’, (2019) 1(1) Law, Technology and Humans, 6, 6. https://doi.org/10.5204/lthj.v1i0.1314.
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