The Australian legal system places a high value on openness and transparency, and the idea of ‘open justice’ is a fundamental rule of the common law. This is why normally we have open courts, where the public and view trials in real life, proceedings may be videotaped for later viewing, decisions, transcripts and other court documents are published and made available to all.
However, due to COVID-19 and the new laws limiting ‘non-essential’ activities outside the home, many court proceedings are taking place over the phone or via video-conferencing. Even most bail hearings are being heard by a Judge in chambers, which means the Judge and the defendant seeking bail will not be face to face.
What effect will this have on the principles of open court, if you can’t just walk into the court room and view the proceedings?
Most courts in NSW have developed a policy in relation to COVID-19. The Land and Environment Court states only court staff and legal representatives essential to the hearing of the matter should attend the courtroom. The NSW Industrial Relations Commission has banned people from attending hearings solely to observe proceedings. The Federal Court of Australia has put similar measures in place but also states that the Court is considering streaming and other methods to ensure the ‘requisite degree of public access to hearings conformable with the open justice and open court principles’. Possible solutions may be sharing the videoconference links so people may join and observe the online courtroom, or publishing transcripts and videos after the proceeding has concluded. This may involve technology unfamiliar to the courts, and may involve some quick and flexible thinking – something we are all trying to do in this rapidly changing times.
Open justice is extremely important, but so is the health and safety of individuals, court officers and litigants. Action has been taken to stop the spread of COVID-19, and as we settle into a period of strict social distancing, we need to consider reviewing the current policies and operations with a view to ‘maintaining open justice, consistent with the current constraints and health advice’ (Supreme Court of New South Wales).