The future of the administration of justice – how to best manage easing of the restrictions – is a return to the past practices feasible or desirable? What lessons have we learnt?
AIJA Online Conference Series
Chief Justice Allsop AO 30 September 2020
The future for the administration of justice- how best to manage easement of the restrictions – is a return to the past practices feasible or desirable? What lessons have we learnt?
I am grateful for being able to speak in this important series.
We have all faced a huge stress test this year which had told us all something about ourselves, our courts and how we might address the administration of justice in the future.
Last night, Chief Justice Winkelmann and I participated in a Commonwealth Chief Justices Roundtable with heads of jurisdiction from the widely diverse Commonwealth: from England and Wales, to The Gambia, India, Malaysia, Malawi, New Zealand, Nigeria, Northern Ireland, Rwanda, Scotland, Singapore, Tanzania, Uganda and Zambia. What was fascinating was the commonality of experience and of the perception of the challenges of the future.
The focus of what I wish to say this evening is on the future, but I should begin by saying something of the Federal Court and its jurisdiction and how it has functioned during the pandemic, as background to the perspectives to follow. The Court has a very wide jurisdiction, largely civil, across all Commonwealth legislation. Many of its cases are shorter judicial review cases, such as migration and administrative review cases and appeals, but, increasingly over the years, the Court’s caseload has come to be made up of large difficult cases with often fact intensive work: intellectual property, especially patents; regulator enforcement work in anti-trust and commercial areas, taxation, commercial work, large class actions, both commercial and non-commercial and native title, in particular.
The Court is a court of first instance but also operates a national Full Court and appellate system. This national and indeed continental structure of the Court inevitably leads to the need for judges of different States to work on cases from other registries, whether together on appeal, or sometimes at first instance. This leads, in the ordinary course of non-pandemic business, to a very large expenditure on travel.
For instance the court sits for four months of the year (February, May, August and November) as a Full Court, flying judges between registries to hear cases.
We have had for many years a video conferencing facilities, but they have never been perceived as entirely reliable or a satisfactory substitute for in-person hearings. With the expenditure and concentration on technology for the pandemic that reliability and confidence has been achieved.
The Court’s response to the pandemic was as follows.
In mid-March, in response to the COVID-19 pandemic, the Court suspended the conduct of face-to-face hearings and started to conduct hearings remotely using Microsoft Teams. The Court also suspended face-to-face registry services. This was not a huge change because of the Court’s established Electronic Court File and eLodgment facilities.
The use of Microsoft Teams has allowed the Court to proceed with its caseload, with parties and legal practitioners appearing from outside of the courtroom. The Court has produced a number of practice notes and guides to provide guidance for the legal profession and self-represented litigants appearing in hearings that are held over Microsoft Teams. Depending on each judge’s preference and the particular movement restrictions in place in each State and Territory, Federal Court judges have presided over hearings in a courtroom (with all parties remote), in chambers and from home. Judges have also been dealing with simple or interlocutory matters on the papers or by telephone.
Since mid-April 2020, the Court has operated at about 85% capacity, largely because of its adoption of Microsoft Teams. The only matters that are not proceeding by Microsoft Teams are non-urgent matters involving self-represented litigants who are unable to use Microsoft Teams or matters of high security risk that must be heard in-person. For litigants in immigration detention, the prospects of conducting online hearings by remote access technology presented particular challenges. The Court has worked with national and state Bar Associations to arrange pro bono referrals to counsel where a litigant did not already have representation.
Moving to the Microsoft Teams platform has not been without its challenges. A significant hurdle was finding a way to obtain a reliable transcript of a matter heard over Microsoft Teams. This required an upgrade of the Court’s videoconference-enabled courtrooms and IT infrastructure. Developing ways for members of the public to access hearings held over Teams has also been a challenge. At present, the telephone dial-in details for each hearing are published on the daily court list and members of the public are invited to contact the presiding judge’s associate to obtain a link to join the hearing (if they wish to join over the internet as opposed to using the telephone).
One thing seems to me to be clear about our experiences this year and the future: we cannot discount what we have learned and simply go back to “normal”. We must assess the use of technology that we have mastered to overcome a problem to improve, if we can, the administration of justice.
We should remember a number of things. Courts do not just resolve disputes, Courts are the arm of the State whose power is fundamentally protective of people and of the rights and interests of people. It is the only form of state power that is truly protective in character: from the power of the powerful, whether government or private, in the just resolution of disputes.
The courts’ power and authority come, in significant part, from the consent and trust of those subject to that power and authority: the people within the polity.
Two features of our system assist with that broad consent and trust in the administration of justice: the knowledge of full access to what we do as courts and the evident seriousness with which we deal with the problems of people.
Law is about people and their relationships, and about power.
Thus access, and consent and trust, are the fundamental pil lars of public confidence in the administration of justice.
The last six months have seen these features illuminated.
Let me begin with access. Virtual presence by the kind of technology we have been using can both reduce and increase access to justice. It can reduce access to justice because people cannot come to a court room to see the event. They can still obtain the court documentation, but they cannot come to a place and watch with freedom and anonymity.
Access can however be increased. It is increased by the ability of anyone anywhere in the country, indeed anywhere in the world, to register to watch the proceeding remotely. It may be difficult however to do this anonymously with some technology. But in due course with the development of streaming technology as a standard feature of the Court’s technological capacity this kind of anonymous viewing will become common place.
The reduction in cost by eliminating the need to come to court for case management and interlocutory hearings is another feature of the significant increase in access to justice.
One feature which is or should be central to our consideration of the future is the avoidance of inequality developing by reference to technological disparity. The only cases that the Court has not been able to deal with properly during the course of the pandemic have been unrepresented litigants for whom pro bono assistance cannot be obtained and who do not have the facility to work with the kind of computer technology we are using. A sense of technological them-and-us must not develop. For this reason courts will have to develop facilities, physical and technical, that can be used by those without technological capacity.
The Singapore courts have set up “Zoom rooms” in court buildings in which litigants without the technological facilities of others can appear on equal terms to those in barristers’ chambers and law offices. It is a valuable initiative. Not only is this a challenge to avoid inequality it is a challenge to broaden the footprint of the courts into regional and suburban areas at a much cheaper cost than building regional courts.
A fundamental prerequisite in the development of this kind of infrastructure will be engagement with the profession. It may be that the courts will be able to partner with Bar Associations and Law Societies to provide facilities to the public for this kind of appearance.
The degree of cooperation which this pandemic has generated has to a degree been revealing. There was initially resistance: sometimes resistance to moving out of court, sometimes resistance moving back into court. But there has never been resistance to consultation. From the early days, I sought to communicate with the Presidents of the Bar Associations and Law Societies almost every day. These missives were able wane when the pandemic became business as usual. But it was illuminating to me to see how much cooperation I and the judges received from the profession, and indeed the litigants, in overcoming the difficulties that we faced. It has been a revelation to see how much can be achieved with cooperation.
As we are thinking about the future both in terms of logical analysis and experience it will be essential to bring the profession with us at all stages.
These matters of access of course affect public consent and trust. The consent and trust upon which judicial authority rests derives in significant part by the evident seriousness and gravity with which the State takes the disputes of people before the court: a large impressive building; the court staff; the judge; the judges’ staff; and an occasion - a physical human exchange, in which the competing people and ideas confront each other in a formal way representing, not pomposity, but the importance to the individual and to the State of resolving the grievances and disagreements which are being aired.
It is difficult to overestimate, and indeed easy to underestimate, the importance of this sense of occasion, of exchange of human presence.
The technology that we have been using that gives such wide access, and even the wide access without inequality if we take measures to ensure that that does not arise, might be seen to drain or abstract that sense of place, of occasion and of humanity and of human exchange. If this occurs we may remove the necessary human quality that forms part of the just exercise of power, and undermine consent and trust.
These considerations help turn one’s mind to the kinds of hearing and the kinds of activity that can be done using this technology without, or with limited, risk of draining the occasion of importance.
The kinds of cases where it may be difficult to avoid that danger are first instance cases involving the rights, problems and lives of ordinary people. To have one’s child taken away, to be made bankrupt, or to be sent to prison, by remote hearing can be easily seen to be a deeply unsatisfactory state of affairs. The need for human explanation and engagement of the State and the citizen and of citizen and citizen arises acutely in such cases. Even if they are done sensitively and respectfully and formally on-line there may be a sense of lack of presence and of things being done between the profession and the bench that exclude the client.
At the other end of the spectrum there might be very little basis for expecting people to walk to court and participate in case management hearings that could be heard remotely.
But it is too easy to say that no first instance cases should be heard remotely or that all case management hearings should be heard remotely. Many first instance cases will have aspects to them that should be done without the need to come to court: oral argument, openings and the like and so trials may become a patch work quilt of remote and physical presence.
Which category do appeals fall into? It may depend upon the type of appeal. We have very successfully done many appeals remotely with this reliable technology. It has enabled the Australia wide talent of the Court to be deployed in a focused way without the huge expense of travel and accommodation.
That said there are some appeals where the parties wish to attend which are of great importance to such people.
All this shows, it seems to me, that we must be careful not to approach these questions only through abstract logic, or cost and expense alone. There are important experiential issues as well: experience not just of each individual, but of people collectively, both in the profession and in the courts and in the litigants and the general public.
We are facing an important potential change to the structure of operation of the courts. It should be looked at carefully through experienced eyes focused on the reality of undertaking this most important work. There will be a balance between access by technology, access by physical presence and the maintaining of public trust and confidence not only in the process but in the cost effectiveness and efficiency of the process. None of these things are in little boxes they must be thought about holistically and experientially.
One of the features that will be important is the effect on judges as a group of people. How they relate to each other, and how they relate to the litigant. The remote dynamic can lead to a sense of immediacy in the human dynamic of decision making. Decisions are easier at a distance and made abstractly than they are in the physical presence of those who face the consequences of the decision. This is part, I think, of the physicality of a sense of place.
Much needs to be thought about, and felt.
The Courts are not owned by judges or by the Executive. They are an essential part of the democratic process. That throws into relief the importance of the choices to be made in this regard.
*Chief Justice of the Federal Court of Australia.