The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality

Published date01 June 2021
DOI10.1177/0067205X21993139
Date01 June 2021
Subject MatterArticles
Article
The COVID-19 Pandemic, the
Courts and Online Hearings:
Maintaining Open Justice,
Procedural Fairness and
Impartiality
Michael Legg*
Abstract
The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to com-
munications technology as a means to be able to continue to function. However, courts are unique
institutionsthat exercise judicialpower in accordance with the rule of law.Even in a pandemic, courts
need to functionin a manner consistent withtheir institutional roleand their essential characteristics.
This articleuses the unique circumstances broughtabout by the pandemic to considerhow courts can
embrace technolo gy but maintain the core or essenti al requirements of a court. This ar ticle identifies
three essentialfeatures of courts—open justice, procedural fairness and impartiality—and examines
how this recent adoption of technology has maintained or challenged those essential features. This
examination allows for an assessment of how the courts operated during the pandemic and also
provides guidancefor making design decisions about a technology-enabled futurecourt.
I Introduction
The former High Court of Australia Chief Justice Murray Gleeson stated that:
the court of the future will need to embrace, and respond appropriately to, the demands of the future,
while remaining a court. For that purpose, judges themselves, and especially judicial leaders, need a
clear idea of what being a court involves. This means understanding the characteristics of the judicial
function and discriminating between the essential and the inessential.
1
* Professor and Director of the Law Society of New South Wales Future of Law and Innovation in the Profession (FLIP)
Research Stream, Faculty of Law and Justice, University of New South Wales (UNSW). The author would like to thank
Professor George Williams, Dr Felicity Bell and the anonymous reviewers for their comments, and Anthony Song for his
research assistance. This research was undertaken with the support of the Law Society of NSW. The author may be
contacted at m.legg@unsw.edu.au.
1. Murray Gleeson, ‘The Judicial Method: Essentials and Inessentials’ (Speech, District and County Court Judges’
Conference, 25 June 2009) 6–7 https://www.hcou rt.gov.au/assets/publications/speeches /former-justices/gleesoncj/
Federal Law Review
2021, Vol. 49(2) 161–184
ªThe Author(s) 2021
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DOI: 10.1177/0067205X21993139
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The COVID-19 pandemic and the ensuing mandated health protections, such as social dis-
tancing, have meant that the technology-enabled future court has arrived much more quickly
than might have been expected. Courts have been incorporating technology into their practices
for some time but selectively and at a measured pace. The society-wide restrictions on gatherings
andmovementhaveseencourtsturntocommunicationstechnologytobeabletocontinueto
operate. This rapid uptake of technology has made Gleeson’s observations both prescient and
pressing—how can courts embrace technology, which by its nature precipitates change, but
maintain the core or essential requirements of a court?
This article addresses this question in two parts. The first part is essentially background.
It explains why courts needed to continue to operate despite the healt h risks of COVID-19 . In
short, this is because the justice system is essential to the rule of law, which provides the
framework for a democratic society. As courts needed to continue to function, they also needed
to adopt practices that permitted the administration of justice without the health risk. Technology
was the main answer. The article briefly explains the technology that was utilised during the
pandemic. The article then identifies three generally accepted essential features of courts: open
justice, procedural fairness and impartiality. These features are essential because of their role in
supporting the rule of law. The second part of the article addresses the question identified above
by examining how the technology employed during the pandemic supported or challenged each
of the three features.
Studying the interaction between the maintenance of the essential features of courts and tech-
nology is important in ascertaining both how the courts operated during the pandemic, and how
they may operate in the future. During the pandemic and its aftermath, it is important to ask
questions such as whether the courts were open and accountable, whether the persons subject to
an online hearing received a fair hearing according to law and whether public confidence in the
court system was maintained. In the future where courts continue to develop online hearings in
some form, the essential features of a court will provide a yardstick for what is permissible and
what is not. The way in which communications technology maintained or threatened those essen-
tial features during the pandemic will be useful precedents for making design decisions about the
technology-enabled future court.
II Background
The coronavirus which causes the respiratory illness COVID-19 emerged in China in December
2019 and then spread around the world. The World Health Organisation (WHO) declared the
outbreak a Public Health Emergency of International Concern (PHEIC) on 30 January 2020.
2
On 12 March 2020, the WHO made the assessment that COVID-19 could be characterised as a
gleeson25jun09.pdf>(‘The Judicial Method’). See also K M Hayne, ‘The Austr alian Judicial System: Causes for
Dissatisfaction’ (2018) 92(1) Australian Law Journal 32, 43 (arguing that the court must make changes to litigation
to reduce cost and delay but subject to preserving that which is ‘essential to achieve a just outcome’ (emphasis in
original)).
2. World Health Organization, ‘Statement on the Second Meeting of the International Health Regulations (2005)
Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-nCoV)’ (Media Statement, 30 January
2020) https://www.who.int/news/item/30-01-2020-statement-on-the-second-meeting-of-the-internat ional-health-
regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov)>.
162 Federal Law Review 49(2)

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