There was a time that an ordinary morning at the Melbourne Magistrates’ Court would be filled with angst and the smell of tobacco smoke, with long queues at the entrance. Lawyers and barristers in one orderly line, defendants in the other.
At the tail end of 2020, it was a very different picture.
Victoria’s busiest court is now largely empty. COVID-19 pandemic restrictions have made Zoom hearings and virtual trials the norm.
And outside the now-quiet legal precinct, lawyers and advocates are worried about what it all means for access to justice for the most vulnerable members of our society.
An overburdened system
“The more disadvantaged you are, the more barriers you face to accessing our justice system, and that has played out across the digital spectrum as well,” Victoria Law Foundation principal researcher Dr Hugh McDonald said.
With the rapid shift to online operations, delays in the system have blown out even further.
Most Magistrates’ Court cases were adjourned during the Melbourne lockdown, and while the court started hearing some matters online in November there is a growing backlog and a lack of funding to address it.
The exact number of cases is difficult to determine, but it could take years to clear.
In July, Chief Magistrate Lisa Hannan said more than 80,000 criminal matters had been adjourned due to coronavirus restrictions. Lawyers suspect this number is now more than 100,000.
When McDonald reviewed Victoria Legal Aid’s summary crime program he found the criminal justice system to be “stressed” and “pressurised”.
The review came just months before the suicide of magistrate Stephen Myall, who the coroner found was burdened by an “ever-increasing workload”.
Myall’s suicide followed that of former magistrate Jacinta Dwyer, whose death is still subject to a coronial investigation.
In the past decade, case numbers in the Magistrates’ Court have increased substantially but the number of magistrates has barely risen.
In contrast, the number of police officers grew from 11,211 in 2011 to 15,295 in 2019.
The increase in frontline policing has caused a surge in the prosecution of low-level offences, adding pressure to the system.
Fitzroy Legal Service principal lawyer Jennifer Black says the most disadvantaged and vulnerable members of the community are bearing the brunt of the blowout.
The number of people on remand has increased greatly since Victoria’s parole and bail laws were tightened in response to Jill Meagher’s murder in 2013. That increase had an adverse impact on vulnerable community members, Black said, and the current delays had taken a further toll on those facing charges.
“That sort of indefinite adjournment is really difficult for people to manage,” she said.
In May, the Victorian Aboriginal Legal Service (VALS) told the inquiry into the Victorian government’s response to COVID-19 that court delays were impacting people’s economic stability and ability to find work.
It said some clients were spending longer in custody because of delays in sentencing, and others might end up on remand longer than any sentence they’d likely receive.
Prisoner advocate and Sisters Inside chief executive Debbie Kilroy says court delays can also increase the risk of reoffending, with offenders more likely to breach bail conditions or commit low-level offences the longer their legal disputes go unresolved.
“An accumulation of all these issues come to a head,” Kilroy said.
Access to justice
Marginalised and vulnerable people are more likely to have poor digital literacy and limited access to technology. They are also more likely to face language barriers and disability. The burden then falls on legal aid services to help with access.
Black says what ought to have been one of the government’s first considerations “seems to have been an afterthought”.
In December, the Victorian government announced $23.1 million in funding to help reduce case backlogs and allow more matters to be heard online. Some of this will go towards two legal service hubs for regional Aboriginal Victorians.
The VALS, which was given $2.1 million over two years to develop the hubs, said this “paltry offering will not deliver on the need for Aboriginal people to access consistent, culturally appropriate legal services”.
A Department of Justice spokesperson said it had granted $1.9 million to a Victoria Legal Aid program and other initiatives. It’s also funded more registrars to help with magistrate workloads and technology support staff.
Even before the pandemic, the use of audio-visual links had increased dramatically over the past decade.
It can reduce litigation costs, save time and simplify the court process.
But there can be disadvantages for vulnerable groups, such as for those in regional and remote communities, where connections can be unstable.
Hannan has said hearing matters virtually was critical “to address the backlog of matters that have been adjourned due to coronavirus”.
But for lawyers, it can even make taking and understanding instructions harder. Fitzroy Legal Service lawyers have had to speak to clients in custody through phones held up to the glass.
“It was already a difficult system to work in, and it’s harder now,” Black said.
Beyond the Magistrates’ Court
The virus has exposed weaknesses across the Victorian justice system.
Backlogs have built up at the Victorian Supreme and County Courts, with an eight-month suspension of jury trials only recently ending.
People committed for trial — many on remand and yet to be found guilty — now have hearings scheduled as late as 2022.
At the Children’s Court, where cases commonly involve the placement and protection of minors, non-urgent hearings have been adjourned indefinitely. Speaking on the condition of anonymity, a judge said this was troubling because almost all matters heard by the Children’s Court were time-critical.
McDonald fears things are likely to get worse before they get better.
“At this point we’re aware of the immediate impact,” he said. “But there’s this looming aspect to what’s likely to happen when government benefits are wound back … when the rental moratorium ends, when banks want home loans paid back.”
McDonald and Black agree that further investment in the justice system is needed, as is a broader consideration of the laws and policies that have led to soaring case numbers.
Kilroy, pointing to the fact that police and prison funding dwarfs that of social housing, takes a more radical approach.
“We have our priorities wrong,” she said. “But no one is courageous enough to lead in that way — to say we’ve got to defund police and prisons and put that funding into services that assist marginalised and disadvantaged people.”
This story is co-published with Crikey.com.