29 May 2020
A report released today outlines the dramatic changes to Australian courts in response to COVID and the transformative potential of these changes for how the courts, the third pillar of our democracy, function and access to justice.
Grata Fund’s report, Australian Courts: How a pandemic built our launchpad to the future, found that the adoption of new technologies like virtual hearings and electronic filing can enrich the democratic role of the courts by providing for open justice, allowing more people to access court services and reducing the prohibitive costs of litigation, particularly for cases in the public interest.
Changes of historic proportion
“The transition to online courts has the potential to make justice more accessible. The question is whether any of the digital developments made during this period will be continued, or whether the courts will return to business as usual.” said the Hon Marcia Neave, AO, former judge of the Court of Appeal, Supreme Court of Victoria, Chair of the Royal Commission into Family Violence and Director at Grata Fund.
The report found that virtual hearings can reduce the expense of court processes for litigants by allowing people who don’t live in metropolitan centres to access court services without reduce travel and facilitating electronic filing reducing printing costs which often cost thousands of dollars
Australian courts have been seen to lag behind the digital innovations of international comparators like Canada and the United Kingdom, but the adoption of virtual hearings during COVID has opened the door to significant long term reforms. As a result of COVID the High Court held its first full virtual hearing in Cumberland v The Queen on 15 April 2020 and the Federal Court has held multiple online hearings since shifting to online operations.
“While these changes have not been flawless, we have seen technological adaptations that - without a pandemic - would have taken years, even decades to achieve. The rapid adaptation of digital technologies by our courts during this time heralds new possibilities for access to justice, as well as some risks,” said Isabelle Reinecke, Executive Director and Founder of Grata Fund.
Justice must be seen to be done
This technology could remove barriers to physical attendance of court and dramatically expand access for the media and public to watch and report on proceedings, an absolutely essential function for democracy. In a win for open justice during COVID, Justice Perram ensured public access to a Federal Court virtual trial was facilitated for Quirk v Construction, Forestry, Maritime, Mining and Energy Union.
“Live streaming of virtual hearings can enrich the democratic role of the courts and their accountability function. The Australian media’s recent loss of AAP and Buzzfeed make better access to the courts for the media and public more essential and can protect the sacrosanct legal principle of open justice,” said Reinecke.
Changes must not exacerbate existing inequality
The Australian Digital Inclusion Index estimates that 2.5 million Australians are not online. Australians with lower levels of income, education and employment are significantly less digitally included. First Nations People have lower access to the internet at home, with affordability being a key barrier, and this is compounded in remote areas.
“Courts and governments must carefully work to incorporate the leaps in technology that can improve access to justice for marginalised communities and ensure that any long term reforms do not widen existing gaps,” said Reinecke.
While the courts should be commended for adapting so quickly to the pandemic, concerns about the shift to digital operations remain. What impact will digital operations have on the cornerstones of our justice system, including access to justice, open justice, avoidance of undue delay, procedural fairness and the right to trial by jury? The report covers:
- The rapid and unprecedented shift to online operations by courts and tribunals across all jurisdictions in Australia including online filing, online registries, document management, communication, and increased use of audio-visual links.
- How virtual hearings are working in practice and the need to entrench the digital progress made by the courts after the crisis passes.
- Risks and benefits of digital access to justice for marginalised groups such as First Nations People, people with disability and people from culturally and linguistically diverse backgrounds, and what needs to be done to facilitate access to justice in a digital world.
- The principle of open justice in Australia and how online justice threatens this through exclusion of the public and the press from physical courtrooms. The report looks at how the courts can maintain open justice while operating online, and how technology may be used to increase open justice, making courtrooms more available so we can witness justice being done.
- Challenges posed to procedural fairness by the transition to online courts and how procedural fairness can be maintained in a digital environment. We also discuss how the pandemic is compounding pre-existing delays in the justice system, with many courts adjourning matters.
The full report is available for download here: Australian Courts: How a pandemic built our launchpad to the future.
Available for comment
Isabelle Reinecke, Founder and Executive Director, Grata Fund
Media contact: Belinda Lowe 0428 805 696