Providing Justice in a Viral World: Where to From Here?

Justice Rares[1], President AIJA 26 August 2020

Opening remarks – AIJA online conference series:
Australasian Institute of Judicial Administration

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It is my pleasure to welcome you to this first for the Australasian Institute of Judicial Administration, our online conference series hosted by the Law Society of New South Wales: Providing Justice in a viral world: where to from here?

The inspiration for this series is of course the impact of the Covid-19 pandemic on daily life throughout the world, including on the administration of justice. The leading article in this week’s edition of the Economist explains that viruses have probably been responsible for the evolution of human beings because they force organisms to adapt in order to survive the parasitic effect of the hostile invader. So it has been over the last 5 month since Australia began going into lockdowns.

The aim of this conference is to explore our new normal with the insights of highly qualified presenters from a variety of perspectives, in 5 sessions (or 6 if you are a government lawyer).Today’s session concentrates on our practical, forced learning experience in using technology in court and tribunal hearings.

Next on 2 September, the speakers will explore sociological and neurological impacts of virtual courts.Most of us are now conscious of the effect of being constantly deprived of personal interaction. That has included not using our sensate abilities to pick up non-verbal cues, such as, to use the phrase in judgments – ‘the subtle influence of demeanour’ – also known, in the words of The Castle as “the vibe”. That has had a real effect on our day to day online substitute interactions. Perhaps the millennial generation can adapt more readily, but physical presence in, what for most members of our society is a once in a lifetime, highly stressful event, of being in a court case, is immensely personal and important. And, the virtual process has its psychological impacts on lawyers and judicial officers too.

The third session on 16 September will concentrate on the backroom infrastructure providers, the challenges they faced and the solutions that have emerged. There will be presentations from Microsoft, CISCO and Chief Information or Digital officers of the New Zealand and 3 Federal Courts.

On 23 September the focus changes to the impact on access to the courts and the principle of open justice. How can we ensure that justice can be seen to be done while ensuring that no one is physically present in court or in a position to spread infection?

On 30 September the last session will look at what the future will be once, hopefully, we have returned to normal.

It is important to remember that before March 2020 there were serious arguments about the validity and appropriateness of courts taking evidence of important witnesses by audio visual means. Early in the piece, one United States State Court had a virtual jury, each sitting in their own homes.

Lord Chief Justice Burnett of Maldon recently said in a speech: “there is no going back to February 2020…the idea that lawyers will be required to travel for an hour or two, wait around and then deploy arguments for half an hour before travelling back, has now gone.”[2]

The United States’ National Centre for State Courts, with which the AIJA is affiliated, has just published a bulletin on Judicial Perspectives on ODR (online dispute resolution) and other virtual court processes[3]. This noted that the ability to “mute” participants helps to stop people talking over one another. It also revealed that in Arizona eviction (or possession) hearings last year, 90% of defendants did not attend at court, but since the pandemic, attendance is at a record high of 80%. No doubt defendants are now able to be virtually in court, even if only temporarily, from home.

As we experience this period of great change in societal relations, we need to reflect on how well we are meeting the challenges on both an institutional and personal level. The AIJA hopes that this conference series will contribute to this process.

Can I thank, first, the AIJA’s education committee who worked hard to put together what I think will be an insightful and thought provoking program, secondly, the Law Society for generously providing the infrastructure that has virtually brought us together and last, our new executive director, Alison MacDonald, who has masterfully overseen the organisation of the series.

I will now invite Dr Brenda McGivern, a member of the Western Australian State Administrative Tribunal and the council of the AIJA to begin chairing the first session.

[1] A judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory and the Supreme Court of Norfolk Island. The author acknowledges the assistance of his associate, David Helvadjian, in the preparation of this paper. The errors are the author’s alone.

[2] Speech by the Lord Chief Justice, Mansion House event for HM Judges, delivered on 28 July 2020;, accessed 7 August 2020.

[3]United States’ National Centre for State Courts, Judicial Perspectives on ODR and Other Virtual Court Processes, 18 May 2020 Version 1, accessed 24 August 2020.

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