By Michael Legg and Anthony Song -
Snapshot
- The fear that the justice system might grind to a halt in the face of COVID-19 and the related public health restrictions such as physical distancing is misplaced.
- The courts in NSW have readily embraced technology, where appropriate, to continue to deliver the essential service that is justice.
- The courts must also maintain the essential values of open justice and procedural fairness. Even in a pandemic, there will be some limits to the use of technology.
COVID-19 was declared a pandemic by the World Health Organization on 12 March 2020. The Australian and state governments took various steps to try to slow the transmission of COVID-19, including closing businesses and outdoor areas, restricting group gatherings, encouraging people to work from home and follow ‘social distancing’ – reducing the number of close physical and social contacts a person has.
Courts are essential services
Justice Hamill in Rakielbakhour v DPP [2020] NSWSC 323 captured the moment, and the role of the justice system, when he stated: ‘[w]hile New South Wales moves steadily toward a complete “lock-down” the rule of law, and the courts and lawyers who administer it, are considered to be an essential service’ (at [13]). This is a sentiment that has been expressed across the common law world.
Given the courts have needed to continue operating while also complying with health recommendations, they have undertaken several steps to adapt (see summary in the table below).
These have included more fully using a range of existing technology capabilities in relation to document management and communication. For example, the Federal Court of Australia shifted all filing where practicable to its ‘eLodgment’ system, which allows the initiation of actions online, as well as the filing and serving of documents in existing matters. Likewise, NSW Courts shifted filing to its Online Registry, which allows users to file court forms and access court orders online. NSW also expanded its Online Court to include more civil directions lists and interlocutory hearings. Court registries closed and document management was dealt with online to respond to the need for social distancing.
Similarly, many courts have audio visual links (‘AVL’). Where practicable, hearings have been replaced with audio/video conferencing using either court-specific technology or other platforms such as Microsoft Teams or Cisco WebEx. Directions hearings were dealt with by encouraging cooperation between the parties to agree on case management orders or have the order determined ‘on the papers’. For most jurisdictions, the approach to hearings, and especially trials, has been bespoke with the relevant judge consulting with the parties about the approach to be adopted.
Criminal cases present particular challenges in relation to bail and jury trials. In NSW, the COVID-19 Legislation Amendment Act 2020 (NSW) introduced s 22C to the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Section 22C requires any accused person in bail-related proceedings to appear by AVL, unless the court directs otherwise. Given jury trials require citizens to sit in close proximity to each other, new jury trials have been postponed across Australia owing to the significant risk of transmission.
