As remote courts become more common, these are the benefits and pitfalls
16 Sep 2020
COVID-19 has impacted every aspect of our lives including how we access justice through courts and tribunals. Social distancing restrictions have forced courts and tribunals to rapidly digitise in order to ensure continued operation when our communities are most at risk. This rapid transition has brought existing infrastructure weaknesses to the surface. With courts and the justice system being forced to move to remote operations, we have an opportunity to step back and examine how remote court hearings can serve people better.
Benefits of remote courts
In response to COVID-19, Australian courts and tribunals have taken steps to operate with videoconferencing technology wherever possible. Although these changes were driven by necessity, they echo recommendations for digital transformation that courts have been hearing for years.
The rapid move to remote use of courts and tribunals indicates that digital transformation is achievable and should be prioritised. Remote court hearings offers people the following opportunities:
- Case management can be streamlined through increased reliance on e-filing tools and procedural decision to be made ‘on the papers’.
- Increased use of digital platforms to conduct hearings means that people who previously would have had difficulties commuting to court can now do so wherever they are. For people who live in regional areas, or for who commuting brings about other issues (family commitments, physical or mental disabilities or limited financial resources), accessing courts remotely increases equal access to justice opportunities.
- Putting the judicial system online creates greater opportunities for open justice. Digitally recorded, streamed and/or uploaded cases allows more members of the public to see the justice system in action. For people who are self-represented at court, this means more opportunities to educate themselves on the process they are embarking on in more flexible and user-friendly ways than physically going to court.
Pitfalls arising from remote courts
Efforts to improve the digital infrastructure of our justice systems must be guided by considerations related to potential pitfalls that can arise from remote court hearings. These considerations include:
- The impact of the technological gap on people who are disadvantaged in our community. For example, technology can pose a big problem for people who live in remote or regional communities with poor internet connections, which can be exacerbated by over-use with working from home, remote schooling and other COVID-19 related pressures on technology.
- Problems arising from lack of face-to-face contact in situations where people may have specific special needs, such as illiteracy, language needs or accessibility needs. Such examples may surface unique challenges to using technology to access courts.
- Privacy can also be a concern, particularly in sensitive or confidential cases (such as domestic violence) where it is imperative that parties can access the judicial system confidentially or privately. This can pose significant difficulties and strain on some people who may only be able to only access their remote hearing from their home, which may not provide adequate privacy.
- Duty lawyer models situated at courts and tribunals play a vital role in access to justice, with people being able to access legal advice and representation through duty lawyers rostered at courts. In order for remote hearings to work effectively, people must be able to access legal help prior to their hearings, and remote hearings must facilitate communication between lawyers and their clients during a hearing to ensure that people’s cases are adequately presented.
To address potential pitfalls, our courts and tribunals must actively design digital processes to respond directly to the needs of people who are going through courts, especially those who are already experiencing disadvantage.
Key takeaways for effective remote court hearings
- Effective remote court hearings can create opportunities for more accessible and efficient administration of justice, and ought to be invested in beyond the duration of the COVID-19 pandemic.
- In designing the digital transformation of our judicial system, courts need to strike a balance between reliance on technological tools to create efficiency and the needs of particular people who may struggle with accessibility.
- Digital transformation of the justice system must be guided by a human-centred design approach that prioritises people with special needs (such as physical or intellectual disabilities, digital literacy and/or language barriers)
- Remote court hearings creates opportunities for greater application of open justice. If recordings of cases are made available to the public, Australians could access the justice system in more accessible and user-friendly ways.