The Hon Professor Michael Kirby AC CMG is the foundation Chairman of the Journal of Law Information & Science Editorial Board. By 1981, when he accepted the role of JLIS Chairman, he had already served as Chairman of the Australian Law Reform Commission and Chairman of the Expert Group of the Organisation for Economics Co-operation and Development (OECD) on Trans-border Data Barriers and the Protection of Privacy. He was also a member of the Australian Conciliation and Arbitration Commission, a quasi-judicial office which would lead to his appointment to the Federal Court in 1983 as the youngest serving federal judge in Australian history. He would later be appointed to the NSW Court of Appeal and finally the High Court of Australia in 1996. He has been appointed Companion of the Order of St Michael and St George (CMG) (1983) and Companion of the Order of Australia (AC) (1991). Upon his retirement from the bench Hon Prof Kirby was awarded honorary professorships at the University of NSW and University of Tasmania in recognition of his significant contribution to Australian and international legal scholarship.
Throughout his legal career The Hon Prof Michael Kirby has been professionally and academically concerned with the intersection of law, technology and science. This includes service on notable committees and organisations, which include: the Executive of the Commonwealth Scientific and Industrial Research Organisation (CSIRO); the International Bioethics Committee of UNESCO; the Ethics Committee of the Human Genome Organisation; and, of course, his work with the OECD on trans-border data flows.
Professor Kirby's broad ranging professional involvement in science/technology law is reflected in his academic contributions to the discipline. This was evident in his first contribution to JLIS in 1981, entitled "Informatics and Law Reform" (vol 1 issue 1). In that early work Prof Kirby displayed a remarkable prescience about the legal benefits and risks of the (then) forthcoming information age, including: its impact on the trial and evidentiary process; e-conveyancing; privacy; data protection and security; computer crime; and anti-social conduct involving misuse of information technology. He also discussed early proposals for international regimes to deal with these problems; in particular those by the Council of Europe and the OECD [read more]. The work continues to be relevant both historically and in respect of its contribution to the jurisprudence of technology and law reform more generally.
Professor Kirby's near life-long involvement with the OECD is reflected in a number of his other contributions to the JLIS. They include his 1992 paper "Information Security - OECD Initiatives", in which Prof Kirby warned of the dangers (many of which are still pertinent today) posed by the vulnerability of information systems systems and the work by the OECD to combat the threat [read more].
In his 1996 paper, "International Symposium on the Public Voice and the Development of International Cryptography Policy", Professor Kirby discussed the issues faced by the OECD in cryptography policy, including the need for controls in the interests of national security and law enforcement but concluded that for the OECD to remain true to its ideals, such interests must be attained within a context of constitutionalism, the rule of law and respect for fundamental human rights [read more]. In the 2010 , The History, Achievement and Future of the 1980 OECD Guidelines on Privacy" , Prof Kirby provided a retrospective of his chairmanship of the OECD working group on privacy, examining its main achievements and how the lessons learnt as part of that international legal process could contribute to further work as the technology progresses [read more].
Beyond the OECD, Prof Kirby has been particularly concerned with the impact of new technologies on the rule of law and the administration of justice. In his 1998 paper "The Future of the Courts - Do They Have One?", Prof Kirby turned his attention to the use of information technologies in the trial process, considering how they could both serve and undermine the basic mission of the courts as fair and impartial arbiters of legal disputes. [read more] In 2009 he turned his attention to another science which has the potential to both promote and undermine the interests of justice, namely forensics. In "Forensic Evidence: Instrument of Truth or Potential for Miscarriage?" Prof Kirby drew upon a wide range of personal experience and case law as a canvas upon which to observe the response of the courts to forensic evidence. As with all his work, Prof Kirby’s academic analysis informs a set of principles which then underpin concrete suggestions to improve the legal system. [read more]
All of Prof Kirby's papers are now available online, either via this web site or external providers. Please click on the title-bars below for abstracts to his works, all of which contain links to his full works.
Further biographical details about The Hon Prof Michael Kirby AC CMG may be found on his website (http://www.michaelkirby.com.au/)
(1981) JLIS 1.1, pp 1-22
This paper commences with a short description of the speed and variety of technological change affecting information science. It indicates the rapid penetration of the new technology in most sectors of the Australian economy. It then lists a number of social implications identified by international studies and at international meetings. Four issues are specified as requiring urgent law reform attention. The first is the need for new laws on privacy (or data protection and data security). Reference is made to the international regimes proposed by the Council of Europe and the OE.C.D. Secondly, comprehensive reform of the law of evidence is required to permit acceptance in court of computer-generated evidence but upon terms which preserve a fair trial and a realistic opportunity to scrutinise and challenge such evidence. Thirdly, computer crime is mentioned and the need for new laws and procedures to deal with anti-social conduct involving misuse of information technology. Finally, the paper refers to the impact of the new technology on the legal profession itself. Some positive advantages are listed. But the implications for routine land conveyancing (a great part of the legal profession's activity in Australia) may be more painful as land transfer and related information is gradually automated.
This article evaluates the initiatives of the Organisation for Economic Cooperation & Development (OECD) in relation to information security - a problem which has become increasingly urgent in light of the dangers created by the vulnerability of information systems, the increase in computer related crime and the inability of the international community to keep pace with the social implications of technology. The need for global collaboration to provide international solutions is stressed, in order that the political and cultural impediments which obstruct the achieving of international regulation might be overcome. Other attempts to tackle the problems of data security are also discussed. including the work undertaken by the Council of European Communities and by U.S. governmental agencies. The successes of the OECD Guidelines on Privacy and the security standards adopted by MITI are seen as positive steps in the right direction, but should not lead to complacency and for this reason the work of the OECD in this field is warmly welcomed.
The issues relating to privacy continue to expand. Developments in information technology and the global information infrastructure have rendered the early attempts to formulate protective principles, such as the OECD Guidelines, incomplete or now partly inappropriate. One of the major new challenges for privacy protection is that of cryptography. In this essay the author draws upon experiences in other rapidly transforming areas of policy development to extract the principles which should constitute the framework within which cryptography policy guidelines should be developed. “Ten commandments” are identified: policies and resulting laws must rest upon sound scientific data; there is a need for respect for the limitations of the law in influencing behaviour; policy objectives must take account of divergences in domestic politico-legal cultures and histories; it is necessary to involve consumer groups which will be affected by the policy developments; recognition of the significant role of language and symbols in signaling the intentions of policy-makers is important; a clear understanding and articulation of the social problems which necessitate the policy measures, in order to avoid alarmism, is essential; there is a need to appreciate the context of international law within which policy development must take place, and the consequent need for strategies to be informed by the objectives of fundamental human rights norms, such as the right not to be subjected to arbitrary or unlawful interference with privacy; policymakers also need to retarget and revise policy to adapt to changes including changes in technology; the attention of governments at the highest level must be captured; it must be recognised that although such governments and their relevant agencies must maintain an active role in policy development, that role must be monitored to ensure that such agencies remain disciplined by, and accountable to, affected social groups. The author concludes that the development of cryptography guidelines must not be understood as an exercise in “balancing” the legitimate aims of law enforcement and national security on the one hand, and the protection of privacy and other human rights on the other. Rather, each of these objectives has a legitimate claim on government policy and law, but the interests of national security and law enforcement must be attained within a context of constitutionalism, the rule of law and respect for fundamental human rights.
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The courts are beginning to use new information technology on a daily basis. However, it is important to ensure that the new technology is used in a way, which is harmonious with the basic mission of the law and the courts, to achieve just outcomes according to law by procedures, which are manifestly fair. Information technology is likely to lead to radical changes in ways of conducting trials. Video links and the use of the net may enable the courts to hear evidence and argument without the witnesses or the parties being present. Such procedures are useful but should not be allowed to threaten the public administration of justice. The common law tradition is one of continuous oral trials in public. This tradition may be threatened if video links and other electronic ways of presenting evidence are used to enable the judge to conduct a trial in private without ever seeing the witnesses or the parties face to face. Technology can also aid lawyers and judges in preparing arguments and judgments. Search tools already enable lawyers to discover the law on the internet more quickly than in the past. We may soon have voice controlled computers which will be able to find all the cases on a point quickly and efficiently. However, we are a long way from computers which will be able to act as judges. We have made little progress in expert systems in law in the last fifteen years. But there is no doubt that we will make progress in this area. In considering how to use these new technologies, we need to remember that the pubic will judge the courts on their ability to find just solutions to human problems, not the technology which they are able to bring to the task.
Forensic evidence is not new in Australian courts. Fingerprint and handwriting analysis and technological expertise came to occupy an increasing role in court cases during the nineteenth and twentieth centuries. By reference to the forensic evidence gathered by police in the Graham Thorne murder trial, leading to the conviction of Stephen Bradley, the author demonstrates the growing use of traditional forensic evidence. With the last decades of the twentieth century and the beginning of the twenty-first, new problems began to emerge, notably in the use of DNA evidence ‘to convict the guilty and clear the innocent’. By reference to decisions in the High Court of Australia, the author illustrates the Court’s response to forensic evidence. Other cases are cited, including in State courts, to illustrate that errors can occur from careless procedures or from excessive confidence in scientific reports. The article concludes with a number of lessons which are suggested by a review of recent Australian cases. Courts must be vigilant against the risk of evidentiary as well as scientific error. They must insist on rigorous analysis of proved materials and adherence to sound and transparent regulatory regimes.
Between 1978-80, the author chaired an expert group of the OECD which developed the OECD Privacy Guidelines. His work in this respect has previously been noted in this Journal ((1981) Vol.1 No.1, 1; (1992) Vol.3, No.1, 25; (1996) Vol.7, No.2, 137). This article offers a thirty-year retrospective on the OECD Guidelines, starting with historical descriptions of the clash of values that had to be resolved in the group. The article describes four main achievements by which the OECD Guidelines built on predecessors; added value; envisaged flexible implementation; and secured survival of basic privacy protection. The article closes with suggested lessons for the future from the Guidelines of 1980, given the huge technological changes that have occurred in informatics in the intervening thirty years, some of which are described.
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