FLIP surveys courts on the experience of remote proceedings during COVID

In March and April 2020 Australia’s federal courts quickly moved to hearing matters ‘remotely’ – usually via either Microsoft Teams or by phone – to maintain safety during the COVID-19 pandemic. FLIP Stream’s Dr Felicity Bell and Professor Michael Legg decided to conduct a survey of federal judges (from the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia) about their experiences.

The three Federal Courts were approached and invited to take part in the survey (ethics approval HC200454). The Chief Justice of the Federal Court, the Hon James Allsop AO, and the Chief Justice of the Family Court and of the Federal Circuit Court, the Hon William Alstergren QC, agreed to circulate the survey invitation to judges.

The survey sought to understand the impact of remote proceedings on judges and their work, as well as to collect some baseline information on the technology being used and how the courtroom process was modified for remote proceedings. It sought to elicit where judges perceived that problems had arisen, how they were ensuring that procedural fairness was afforded, open justice provided or compromised, and how they saw their role as impartial adjudicator to be changed and/or made more or less difficult, as a result.

The survey contained a mixture of sliding scale responses, multiple choice boxes and text boxes enabling comment. It was designed to be completed quickly, in about ten minutes. An invitation to complete the survey was circulated at the end of June, and 40 responses were received from ~150 judicial officers, a response rate of ~33%.

Survey participants were generally quite positive about the use of remote procedures to carry on the work of the courts during the pandemic. For example, judges were asked to indicate, using a sliding scale, how successful overall they had found the conduct of remote proceedings to be. The scale was labelled ‘Not at all successful’ at left (0) to ‘Highly successful’ at right (100). An average score of 72 was selected. Similarly, participants typically did not feel that they had encountered significant difficulties in ensuring procedural fairness, and very few held concerns about communicating their role and impartiality in remote proceedings. Complaints predominantly related to the functioning of technology and problems with picture and sound, caused by both human error and technical glitches. On the other hand, many acknowledged the time and cost savings that use of remote procedures, especially for interlocutory and procedural matters, could bring about for lawyers and parties. A majority of survey participants expressed that remote proceedings should continue post-pandemic but most felt that this should be only in certain circumstances, primarily for shorter or procedural matters.

Dr Bell and Professor Legg are now, with the assistance of UNSW lecturer Dr James Metzger, conducting a similar survey of the NSW State Courts – the Supreme Court, Land and Environment Court, District Court and Local Court.