Courts and COVID-19: Challenges and Opportunities in Australia

This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here

BY JOE MCINTYRE, ANNA OLIJNYK AND KIERAN PENDER

Reforms of courts and judicial processes generally occur at a glacial pace. Not only is law inherently conservative, courts are complex systems. The implications of change need to be carefully considered to ensure relevant protections are maintained and cherished objectives promoted.

All of this makes the breakneck transition to ‘virtual courts’ in response to COVID-19 at once terrifying, thrilling, concerning and exciting. Necessity is forcing changes, particularly in the use of remote and online hearings, that were impossible to imagine a few short months ago. The challenge in such a transition is to find the right balance in protecting both the short- and long-term rights and interests of parties and the public. Not only may bad practices adopted in emergency conditions be difficult to wind back later, but vital protections may be unnecessarily denied in the coming months.

This post seeks to identify and discuss the potential challenges raised by this dramatic pivot in court practices. The focus is on general principles of public law (rather than discrete Australian constitutional restrictions), and it adopts a self-consciously comparative approach.

Judicial Reponses to COVID-19

Like so many of our social institutions, courts were initially caught flatfooted in response to the emerging crisis. The World Health Organization (WHO) declared a pandemic on 11 March. In the United Kingdom (UK), the government’s initial reluctance to impose social distancing requirements meant jury trials were still scheduled to start at a point when over 300 people had already died as a result of COVID-19 in that country. In the face of mounting pressure, the Lord Chief Justice (the head of the judiciary in England and Wales) eventually made the call on 23 March to ‘pause’ all jury trials in his jurisdiction. Elsewhere, institutional delay has had tragic consequences. One New York Judge refused to implement social distancing in his court in mid-March. By the end of the month, the virus had killed him.

In Australia, by mid-March most courts were moving to delay hearings in all but the most urgent cases. For example, by 17 March the High Court had resolved not to sit as a full court in Canberra until at least August, while the Federal Court had moved to vacate all matters listed through to June. A week later the High Court shut its registry for all face-to-face services. Jury trials in South Australia were suspended on 16 March (a full week earlier than the same decision in the courts of England and Wales), at a time when there had been three deaths in Australia as a result of COVID-19. A week later the ACT Supreme Court vacated a hearing on the basis of the health risks involved in face-to-face court attendance, in circumstances where conducting the final hearing online may have been prejudicial to the litigants. In making this determination, the Judge made explicit that his decision was ‘made without reference to the personal [health] attributes of the plaintiff’s legal team’ (at [17]).

Subsequently, most Australian courts have begun to utilise digital solutions to allow virtual hearings (perhaps best described as emergency remote hearings). Even the High Court has adapted to this context: the case of Cumberland v The Queen was the first to be heard entirely electronically. While there have been many challenges, the speed with which the judiciary and the profession have managed to adjust to the digital-only landscape is striking. There is already senior court jurisprudence on when it is appropriate to hold virtual hearings, and the Judicial College of Victoria is usefully collating the emerging jurisprudence on, and judicial institutional responses to, the pandemic.

However, there has been very little time in this rapid pivot to reflect on the constraints of online courts, and how these may be addressed.

The Movement to Online Courts and Online Dispute Resolution

As dramatic as this shift has been, perhaps equally striking has been the failure to adopt such potentially useful and demonstrably available technologies until emergency circumstances demanded them. The UK apparently held its first virtual hearing only in 2018, while no Australian court had moved beyond pilot stage. This is despite the idea of online courts being around for decades.

Online dispute resolution (ODR) systems have their origins in e-commerce platforms such as eBay and PayPal. Early in their rollout, it became apparent that to ensure trust in the systems, such platforms would require some mechanism to promote the efficient resolution of disputes between users. The resulting negotiation and artificial intelligence (AI)-based adjudication systems have been massively successful: the eBay ODR system alone resolves more than 60 million disputes annually.

However, it is only in the last decade that ODR systems and techniques have begun to transition from the private sphere into the public dispute resolution system. Jurisdictions across the world (including Canada, Ireland, the Netherlands, China and the United States) are beginning to examine the opportunities presented by these modern systems, and in some jurisdictions such systems have been adopted. Perhaps the most successful of these public ODR systems is the Civil Resolution Tribunal (CRT) in British Columbia, Canada. The UK is in the process of investing nearly A$2 billion in digital justice solutions, including a proposed Online Solutions Court. There have been some Australian forays into online dispute resolution; for example in the Victorian Civil and Administrative Tribunal.

Part of the challenge, though, in reflecting on such systems is that there is not a common concept of what is being created, or a shared language to describe it. ‘Digital Justice’ can include online lodgement and case management, online evidence submission and management, fully-integrated ODR systems (information provision, negotiation, mediation and adjudication), AI-assisted decision-making and the use of virtual hearings. This lack of common language can lead to false comparisons, perhaps causing resistance to the embracing of these solutions.

The literature on the movement towards online courts and public ODR can, however, help shape how we should be responding to the COVID-19-necessitated roll-out of emergency remote hearings. It has helped to identify some of the concerns in the use of online courts, as academics and jurists grapple in the current crisis with how to ensure adequate protections of the interests of the parties and of justice. The conclusions are often quite concerning. In this post we draw on this literature to help navigate the many issues that arise from this rapid pivot.

Emergency Online Courts – Problems, Promises and Best Practices

Open Justice

It has long been accepted that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’ (R v Sussex Justices; Ex parte McCarthy [1924] KB 256). Open justice is an essential feature of the Australian judicial system, with constitutional underpinnings. It is both an ‘overarching principle’ and the source of practical rules, including that judicial proceedings should be conducted in public. As Lord Shaw of Dunfermline famously observed in Scott v Scott [1913] AC 417, quoting Jeremy Bentham, ‘[p]ublicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity’.

COVID-19 has endangered open justice in Australia, with the rapid shift to online courts posing challenges to the ability of the public, and particularly the media, to access judicial hearings. As matters are now being heard online, observers cannot exactly wander the halls of court buildings, visiting court rooms as they see fit. While several Australian courts have stated an intention to uphold the principle in their fast-evolving digital practices, their statements have been sparse on detail. The Supreme Court of Victoria, for example, merely offered that ‘[p]rinciples of open justice have been an important part of the Court’s planning of its response to the coronavirus (COVID-19) pandemic. The means of achieving this will be considered on a case by case basis’.

In England and Wales, a memo issued by four of the jurisdiction’s most senior Judges offered three potential solutions:

  • one person (whether judge, clerk or official) relaying the audio and (if available) video of the hearing to an open court room;
  • allowing accredited journalists to log in to the remote hearing; and/or
  • live streaming of the hearing over the internet.

They concluded with a simple statement: ‘The principles of open justice remain paramount.

None of these solutions is perfect. Restricting access to accredited journalists is a partial cure at best, preventing other interested observers from attending. There are also valid technological and security concerns surrounding open-access live-streaming. Even if every hearing occurring on Zoom, Teams or Skype was available to the public, open justice would not be entirely intact – practically, reporters often rely on guidance from court staff and the ability to move between court rooms to effectively cover the justice system, something not easily replicable digitally. How reporting restrictions and protected evidence coexist with online open justice is yet to be seen, and there is a risk that the pandemic may be used to justify more onerous exceptions to open justice (such as suppression orders) than would be tolerated in ordinary times. Another option, not among those flagged in England and Wales, would be for audio or video recordings to be made publicly available online following the conclusion of a hearing.

The rapid shift online also brings opportunity. Most of us cannot, in our everyday lives, take five minutes (or more) to watch a snippet of oral argument in one court or another. If Australia’s judiciary adopted widespread open-access live streaming, its proceedings would suddenly become far more accessible than a few months ago – normally the preserve of reporters, specialists and (one might say uncharitably) those with too much time on their hands. The UK Supreme Court’s live-stream of important Brexit litigation was reportedly viewed by almost 30 million people. If COVID-19 forces Australian courts to embrace streaming and digital distribution, and that trend persists beyond the immediate pandemic, the open justice dividend will be considerable.

If Australian courts can capitalise on the good and address the bad, the COVID-19-necessitated shift online could be remembered in the years ahead as a defining moment in the protection of open justice. But it is imperative that the Australian judiciary and legal profession have this conversation in the days, weeks and months ahead. The question of open justice in the COVID-19 era has been much discussed in the UK; in contrast the public debate here has been limited. Given the principle’s importance, and its constitutional overlay (in some circumstances, closed courts might contravene Chapter III of the Constitution), a more sophisticated dialogue is urgently overdue.

Physical Characteristics of the Court

The physical experience of an online hearing will be significantly different from the experience of a physical courtroom. The architecture of court buildings is richly symbolic, conveying the majesty of the rule of law, the might of the State, and the dignity of legal proceedings. The courtroom layout reflects the relationship between the participants: the judge, lawyers, witnesses, jury, accused and the public. There are times when it is appropriate to stand, sit, speak and bow. There are special ways of passing physical items between different participants. The clothing of the judge, lawyers and court staff conveys information about their role and status. These formalities can serve to emphasise the principles of equality before the law and impartiality of the judge.

None of this is an accident. The symbolism and formality of the physical aspects of courts combine to convey the solemnity of the legal process.

It is difficult to replicate this gravitas online, especially when participants are working from home. Even a carefully prepared home office just does not match the majesty of a courtroom. That barrister might be wearing a bar jacket and gown, but is it pyjama bottoms and slippers down below? (This might be expecting too much; one Florida judge has begged lawyers to wear clothes and get out of bed for online hearings). Will any court expect people to stand and bow when the judge turns on their video (the High Court doesn’t)?

This is not all bad, of course. To many, the ritualistic aspects of a hearing seem archaic and exclusionary. For some litigants and witnesses, the physical environment of the court is not majestic; it is intimidating.

Our point is that these ritualistic aspects of courts ought not be ignored when moving online. What does the user interface convey about the nature of the court? How can impartiality and detachment be performed in the online space? How do seating arrangements and the framing of the webcam shot affect perceptions of the seriousness of the process (for example, it has been suggested that sitting further from the camera increases formality)? What does the background of the shot convey about a participant’s wealth, social status and education? Should counsel stand to make submissions? Studies on such topics already exist; they should be utilised.

These concerns are not abstract: respect for the court is an integral element of our judicial system. If a person is being disrespectful or disruptive during an online court hearing, can the problem be solved by muting that person or excluding them from the hearing? Would a court ever be justified in commencing contempt proceedings in these circumstances? These questions and many more are sure to arise in the months ahead.

Technological Limitations, Access to Justice and Equality

Like any use of technology, online courts are vulnerable to garden-variety technological failure. But for courts, technological failure is not just a practical headache; it is also an issue of principle, with implications for access to justice and equality before the law. There are certainly opportunities here. Litigants from outside the capital cities may find it far easier to attend hearings virtually than to travel for hours to a courthouse. Lawyers will not have to set aside the whole morning to go to court for a five minute directions hearing; clients won’t have to pay for the whole morning.

On the other hand, it has become painfully clear that not everybody has equal access to technology, creating a problem of digital exclusion. There are differences between the software, hardware, internet connection speed and skills of different participants in the court process. These differences will often reflect factors such as the litigant’s location, physical and mental conditions, income, and age. To some extent, these differences are mitigated when all parties to a dispute have legal representation and the parties do not wish to attend the hearing; most law firms can be expected to have reasonable access to technology. But when a party is self-represented, when a litigant wishes to attend a hearing (as is their right, of course) or is required to attend (for example, in a criminal case), unequal technological resources might seriously affect the ability of parties to participate in litigation.

Other issues of accessibility are common to both online and normal courts. Ordinary courts have well-developed protocols to accommodate parties, witnesses and lawyers with specific access needs relating to mobility, visual and audio assistance and translation. Here, again, online courts may have advantages over their physical counterparts. A report by the Global Initiative for Inclusive ICTs and the International Disability Alliance identified technology as a key to improving access to justice for people with disabilities. These matters must not be overlooked in the rush online. Accessibility should be a central design priority of any online court.

Systemic Bias in Decision-Making

Finally, and in many ways perhaps most concerningly, the use of digital technology to conduct hearing may impact upon the quality of decision-making of judges, lawyers and parties.

The literature paints a troubling picture. A 2010 evaluation of a UK virtual hearing pilot scheme (allowing defendants’ first hearings to occur from police station via video link to court) deemed the process unsuccessful, finding defendants appearing virtually were less likely to be represented, more likely to plead guilty and were given higher prison sentences. Similarly, a pilot scheme to allow video hearings for bail applications in Chicago was discontinued once it became apparent that the level of bond set went up with remote hearings. It does seem that judges ‘may be more punitive towards accused people they see on a screen.’

Given many of our own experiences of the difficulties of virtual conferencing, this may not be surprising. In is increasingly clear that ‘zoom-fatigue’ is a demonstrable detriment of this rapid pivot online. The famous Israeli Parole Board study suggested that tired and hungry judges make harsher and more risk-adverse decision. Taken together, this suggests that the extra mental burden involved in virtual hearing may increase the fatigue of judges, which may in turn impact upon the quality of their decision-making.

This should not be taken as suggesting that virtual hearings are juridically improper, but rather than we cannot simply port the schedules and work-patterns of the physical proceedings directly into the virtual proceeding. The psychological impact of the technological medium should affect the design of how such proceedings are conducted.

Conclusion

The events of recent months have given rise to a multitude of challenges across the legal system, and it may be that some of the issues identified here are a necessary price to be paid for keeping the wheels of justice moving. None of the above commentary should be construed as a criticism of judges or court staff, who are working under immense pressure in turbulent circumstances. But there are both immediate and longer-term concerns. Now that the initial technological challenges are resolved, what steps can be taken to reinstate ordinary judicial principles and processes in the digital sphere? Perfect cannot be the enemy of the good – in the interim, a partial reinstatement may be better than nothing. But how do we ensure that adverse practices developed today are not entrenched in a way that persists in the wider movement towards a digital judiciary, long after COVID-19 fades from memory?

Properly managed, this pandemic could represent a great opportunity for the Australian judiciary. Rather than a ‘snapback’ to pre-COVID-19 practice, this could be the beginning of wider digital innovation among Australian courts. Scrutiny, discussion and deliberation will be essential to finding a middle-way that capitalises on potential advantages and avoids the numerous pitfalls. We hope these initial observations will make a modest contribution to that dialogue.

Dr Joe McIntyre is a Senior Lecturer at the University of South Australia. Dr Anna Olijnyk is a Senior Lecturer at the University of Adelaide. Kieran Pender is a visiting fellow at The Australian National University.

Suggested citation: Joe McIntyre, Anna Olijnyk and Kieran Pender, ‘Courts and COVID-19: Challenges and Opportunities in Australia’ on AUSPUBLAW (04 May 2020) <https://auspublaw.org/2020/05/courts-and-covid-19-challenges-and-opportunities-in-australia>

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