President’s Message

Courts innovating to adapt to changing needs

REBECCA SANDFORD, PRESIDENT

To overcome COVID-19 restrictions during 2020, most courts and tribunals were forced to quickly move a number of their practices and procedures online, and, with the cooperation of the legal profession, found that in many cases matters were able to be dealt with more expeditiously as a result. As the vaccine rollout begins and we turn our eyes towards the future, consideration is being given to what we can learn and adapt from those experiences. I recently attended an interesting webinar (the first in the Law Council’s Access to justice and the COVID-19 pandemic series) on the topic, titled ‘Courting innovation: Australia’s judicial system in the context of COVID-19”. The webinar was attended by almost 200 people across Australia and involved an esteemed panel including two members of the Federal judiciary, Chief Justice Alstergren and Justice Collier.

In discussing the ways in which the justice system, and in particular the Federal Courts, had to shift and adapt to respond to the pandemic and balance the need to ensure proper administration of justice and access to justice whilst also embracing the cost savings and increased access arising from the use of technology in court proceedings, the panellists noted the need to remember those who may otherwise fall into the ‘digital divide’, and to look at ways to ensure no one is left behind in light of the dramatic acceleration of the use of hearings online without litigants and representatives attending in person. Similarly, attendees noted the importance of ensuring principles of open justice were retained even when Court participants were appearing remotely, for example by way of online public streaming or other similar access to hearings instead of (or in addition to) allowing the public to attend open hearings in physical courtrooms.

The biggest challenge identified by the panellists was the significant and rapid digital transformation required, which suddenly saw Associates and IT staff become the most important people in the Courtroom. The judges on the panel particularly noted how the profession had been incredibly supportive, pragmatic and reassuring as the Courts worked hard and fast to adapt and to communicate with lawyers and the public that they remained open and accessible. This meant there was a need for very prompt education about the available online platforms to be delivered to over 110 judges in 43 locations across Australia (many of whom have since become fierce proponents of that technology).

The panel also identified that benefits from using technology for hearings included the ability to reduce the impact of the ‘tyranny of distance’, particularly for clients living in rural, regional or remote areas. Similarly, it was noted that appearing electronically meant in some cases witnesses could be safer or more comfortable in giving evidence (particularly relevant for family violence matters or intervention order hearings). However, the judges in particular did note that in some cases, including when it came to assessing witness credibility, in-person hearings remained the preferred approach. While it is possible and can be helpful to zoom in on parties’ and witnesses’ faces when they are on the other end of a screen, that can come at the cost of the rest of their body language being out of view, and the loss of another part of a judge’s toolkit for assessing credibility.

Although this webinar focused on experiences in the Federal jurisdiction, the same sorts of issues have been (and I understand continue to be) considered by the Courts here in SA. Last year, along with then President Tim White and others, I attended a session held by the Courts Administration Authority to discuss the remote access measures put in place by the Courts during the pandemic. The purpose of the session was to enable the Court to hear from the judiciary and the profession about what worked and what didn’t, so as to ensure that appropriate changes can be made or retained to facilitate more effective engagement with the Courts as we move forward into an increasingly digital era.

I think it is safe to expect that from now on, a lot more of our business will be conducted virtually, whether that be court hearings, legal consultations, or the execution of contracts. There is great scope to use technology effectively in the Courts to increase access to justice, create efficiencies and lower costs and time delays, but there is also a need to ensure that we retain in-person hearings and arrangements where those do best serve the needs of participants in the justice system. Ultimately, a balanced approach is likely to be required - there will always be a place for face-to-face interactions, but some of the innovations that were adopted to deal with the pandemic are also here to stay, and I look forward to seeing how the Courts, and the profession, continue to adapt to changing needs and make use of available technology in this respect. B April 2021 THE BULLETIN 5