Legislation addressing the deployment of emerging technologies in Australia is “so far behind we don’t even know how far behind we are” according to Law Council president Fiona McLeod.
She said legislators were struggling with an array of tech-related issues including drones, autonomous vehicles and cyber security.
“In a lot of these areas – take cyber security – we have been told ‘the experts have told us they need facial recognition, they need to analyse metadata, they need all of this’ and those people concerned with privacy have to really scramble to work out what the implications are,” said Ms McLeod.
Recent examples of that scrambling include the Government’s controversial metadata laws passed in 2015, requiring internet service providers and telcos to store customer metadata for two years, despite fierce opposition from privacy advocates.
Meanwhile the GovPass digital identity framework developed by the Digital Transformation Agency and currently in beta, requires biometric verification – and Australians have only until December 8 to provide feedback on the proposed framework.
While lawyers are good at identifying the implications of innovation, Ms McLeod said; “We haven’t been very good at getting ahead of the game in saying ‘alright, if we have Amazon delivering pizza by drone, this is what we have to have in place to do that’.”
She said that there was some progress with regard to the framework required for driverless cars, but generally more attention was needed to the legislative frameworks for innovative applications.
Last week international law firm Allens announced that it was joining forces with the University of NSW to create a research hub; “To explore disruptions to the law, lawyers and the legal system such as reliance on data-driven decision-making and new kinds of biological, artificial and legal ‘persons’.”
The intent is to equip students and the legal profession with the technological insights they will need to succeed in the future and also provide Allens lawyers with the digital nous to meet shifting client needs and expectations.
It will also support the ongoing work of the NSW Law Society with its FLIP (Future of Law and Innovation in the Profession) reports the most recent of which was released in March.
According to Ms McLeod other jurisdictions are more advanced in their thinking about the impact of technology than Australia, citing Europe’s plan to introduce legislation that requires a human to be involved at some stage in judicial decision making ensuring artificial intelligence cannot take over entirely.
“That shows remarkable foresight,” she said, adding; “There are many areas where regulation and laws and policies will lag and we need to be as nimble as we can to deal with that.
“It is really important that we look at and scrutinise the evidence for any new legislative controls over us with a view to the broad human rights at play such as the right to privacy. We have a role as a defender of those human rights – but it is also important we understand what those changes are.
“How we in practice respond to the use of AI and the inevitable use of technology to regulate and oversee behaviour of citizens. We are not at the point of accepting full automation for legal services but there is opportunity to assist members to immerse themselves in new technology and insert ourselves into the future.”
For the judiciary that includes ensuring that technology designed to support sentencing decisions, for example, is free of bias.
Ms McLeod believes that law students need to be taught technology and have a “Basic understanding of the operations and language of predictive coding, of analysis and learning, and understand the rules and language and heuristics that are present in programming so that when tools are presented – such as a tool to help you draft a submission to a court – so you can understand where the weaknesses are in that program.
“A judge might say I’m going to use a program to give me appropriate sentencing outcome or solution based on analysis of legal libraries worldwide. The judge can work out the limitations of that and be aware of where the shortfalls might be.”
It’s a significant issue already. In 2016 Propublica published a report identifying bias in a system designed to predict offender recidivism. The ratings from that system were used to support judicial decision making about when offenders might be released from prison.
The algorithms however were demonstrated to feature racial bias.
If justice is difficult to achieve today, it could be even harder tomorrow.
According to Ms McLeod; “Lawyers have to have awareness of how those systems operate just as we do today. The best lawyers don’t only know the laws and how to access them, they understand how the human beings who apply the law work; who the judges are and, whether they know it instinctively or overtly, they understand what that judge is going to respond to when they make a decision.
“If we are to replace human beings in whole or in part with robotic systems we need to be as aware of what those biases are and reveal them.”
The Law Council of Australia, established in 1933, is the peak organisation representing 16 State and Territory legal professional bodies, law firms and ultimately 65,000 lawyers practicing nationally.
Besides being the voice for the profession Ms McLeod said; “The second focus is around promoting and protecting the interests of those who come across the legal profession and interact with the justice system. That is around delivery of legal services and ensuring the system is working for all that are using it and not just around the wealthy.”
It in this area that she believes technology has much to offer. “In the provision of legal services to people we do have to be conscious that technology is getting ahead of us and there are ways we can provide legal services more effectively at lower cost to people who need it.
“One of the things that keeps people from using lawyers is first identifying that they have legal issues and second is the cost of using legal services. I’m expecting the legal profession will embrace online and digital solutions to deliver legal services with enthusiasm once they see what the market can offer.”
A survey of legal practitioners in Australia conducted by Macquarie Bank and released earlier this month uncovered a digital divide already existing in law firms; smaller firms invested in back office efficiency tools such as accounts automation, and only the larger firms spent up on data mining, predictive analytics and artificial intelligence. Almost a quarter of small law firms have no technology beyond the very basic administrative tools.
“I think we have got some cutting edge ideas and thinking being introduced in some of the firms – for the most of us we are sitting waiting for someone telling us what to do,” said Ms McLeod.
“There is some remarkable innovation going on and a great awareness among new graduates and law students for example of the tools that are available and new thinking around how services can be delivered,” she said.
“But for the rest of the profession we are happy to sit back and rely on the classical legal education and the way that services are delivered with one client at a time face to face or over the telephone without understanding what is available in terms of technologies.”
Once the profession does fully embrace technology; “Lawyers will have to work out where they actually add the value – so if you can go online and fill in your own will or power of attorney or complete you own contract for the purchase of a business what is the value that a lawyer will add when you can do that so cheaply using an online service?”
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