Choosing our pandemic legacy

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The COVID-19 challenge has caused disruption to the way we live and work like nothing in living memory.

Governments, businesses and institutions have had to respond to that challenge by changing their operations – sometimes simply stopping what they do, and sometimes by finding innovative new ways to get things done.

The COVID-19 challenge has also brought with it the freedom to experiment, along with an expectation that not all of the changes that have been quickly implemented will work. In effect, we have had a sandbox in which to trial new ways of doing things without the high expectations.

It may well be beneficial to continue some of the innovative solutions beyond COVID-19. In this article, we explore some of the changes that may be worth keeping after the current pandemic has passed.

The courts

Courts have issued a swathe of new operational procedures via practice directions to respond to the operational challenges of COVID-19 and social distancing.

These measures have included making appearances by phone or videolink wherever possible, with defendants being encouraged to make use of electronic pleas of guilty and adjournments, where available.

There would be a sustained benefit if matters of an administrative or procedural nature – such as callovers, mentions and adjournments – could continue to be conducted by alternate means. This would have the benefit of reducing travel costs for parties, reducing the number of transports for defendants on remand or in custody, and also reducing imposts on court time.

Greater access to justice can flow from leveraging technology to reduce costs to the public in engaging in litigation, especially in appearances on shorter directions and interlocutory matters.

Complementing the existing electronic lodgement of certain documents in the Magistrates Court, the Principal Registrar of the Supreme and District Courts has approved certain Uniform Civil Procedure Rules (UCPR) forms for electronic filing in the Supreme and District Courts (Approval 1 of 2020).

This includes three forms to be fi led with the court to obtain a consent order of the registrar – Request for consent order of the registrar (Form 59A), Proposed draft order (Form 59), and Affidavit (Form 46). Also capable of electronic filling generally is the Notice of discontinuance (Form 27).

In addition, an electronic probate pilot is running and provides electronic filing of a number of probate-related documents for estate matters for legal firms participating in the trial. Post-pandemic, it would be highly desirable to see the probate pilot a success and extended to all matters, and the classes of general court documents which can be electronically fi led to be significantly broadened.

New use of technology such as videoconferencing may have a role to play in domestic violence matters, to assist in distancing parties in preference to physical attendance at mediations, court and other occasions. The altered and flexible methods to create and lodge evidence before the courts may be especially useful in these matters as well, given physical attendance can be difficult or have safety implications in some circumstances.

With the passage of the Justice and Other Legislation Amendment Bill 2019 on 20 May 2020, changes have been made to section 652(3) of the Criminal Code relating to proceedings to transmit charge for summary offence. It will no longer be a requirement for a written transfer application to contain a sworn declaration of the charged person under the Oaths Act 1867. The change will facilitate guilty pleas more efficiently.

Probate

Supreme Court Practice Direction 10/2020 relates to altered processes for informal wills impacted by COVID-19. It permits a registrar to constitute the Supreme Court, instead of a judge, to hear and decide applications to dispense with the requirement that a party be physically in the presence of the testator when signing a will.

This change has brought cost savings to Queenslanders seeking probate in these circumstances and saved time for judicial officers who can now focus on other, more substantive legal issues. This initiative is only for documents executed between 1 March 2020 and 30 September 2020, but would ideally be considered for a place in post-pandemic practice.

Collaboration through technology

With the advent of COVID-19 restrictions, agencies across government have had to move more of their services online.

Many of these services have impacts across a number of agencies, for example, increased use of videoconference court hearings in criminal law matters involves collaboration between lawyers, the Office of the Director of Public Prosecutions, Queensland Police, and the Departments of Justice and Corrective Services.

Previously many of these groups operated in a more discrete fashion, but the pandemic has required agencies to collaborate to design ICT systems and responses that cross organisations. It would be very beneficial to all if this heightened operational cooperation between the arms of government, the courts and the profession was to continue after COVID-19.

Legal Services Award

On 8 April 2020, the Fair Work Commission made determinations varying a number of awards, including the Legal Services Award, by inserting temporary provisions to provide employees with:

• two weeks of unpaid pandemic leave
• the ability to take twice as much annual leave at half their normal pay if their employer agrees

The new arrangements apply from the first full pay period from 8 April 2020 and continue until 30 June 2020, unless extended. Applications have been made to the commission for additional flexibility measures to be introduced in the Legal Services Award. Providing employees and employers with greater flexibility to agree under this award benefits all, and it would be a positive outcome if this were to continue into the future.

Watch houses

During the pandemic, people who have been arrested, particularly young people, have had to be held in regional watch houses for extended periods due to limited transport options. It is hoped that as restrictions ease and things return to normal, stays in watch houses will decrease and people on remand can be transferred quickly to appropriate centres.

However, while in watch houses detainees have been able to instruct lawyers by telephone or videoconferencing devices in interview rooms. Providing confidentiality can be maintained, being able to access technology to gain instructions in these facilities in future would be beneficial, particularly in regional and remote locations.

Correctional facilities

Correctional facilities have been a focus for COVID-19, with reports from overseas that prisons have been significantly affected by the pandemic. The New York Times has reported that there have been more than 42,000 Coronavirus infections and 432 deaths amongst inmates and staff at state prisons, federal prisons and local jails in the United States.

Through good management, the situation in Queensland has been very different, but there have been a number of new initiatives that have been implemented that may be worth keeping post-COVID-19.

Queensland Corrective Services (QCS) has established an email system for prisoners and now has electronic funds transfers (EFT) for prisoners’ trust bank accounts. Arising from a recommendation in the report by the Crime and Corruption Commission’s taskforce Flaxton, these measures were originally aimed at strengthening the barriers to contraband entering prisons.

Commissioner Martin said in a QCS release:
“With the new service, email is sent to the prison, where it is printed off and provided to prisoners after being vetted by officers, in the same manner that mail is presently screened.

“Prisoners do not have access to computers with internet access, but if a reply is requested, the prisoner is given a reply sheet to write a response. This is then scanned by officers and emailed to the recipient.”

It may well be beneficial to continue some of the innovative solutions beyond COVID-19

Previously QCS received money orders and physical money at visitor processing locations which then had to be banked in prisoners’ trust accounts. The new EFT system removes cash handling by QCS staff and also removes another avenue for infections to enter the prisons.

Telehealth is also now likely to be a positive change for the management of correctional centres and the welfare of prisoners. Using this technology should make it easier to get the assistance of remote health providers such as psychologists, psychiatrists and other specialists, as well as reducing the need to facilitate visits or prisoners transports outside the facility.

One of the most impactful benefits that could flow for practitioners and the justice system would be the increased use of videoconferencing for appearances for prisoners and those on remand. A reduction in prisoner transports is both positive from a health perspective but also may permit resourcing to be directed to programs and other justice reinvestment opportunities.

Witnessing land title documents

From 6 April 2020, the Registrar of Titles set out new witnessing options for land title documents in response to COVID-19. While the preference of the registrar was the use of e-conveyancing to address the majority of concerns about social distancing and witnessing, alternate methods were set up for witnessing paper-based documents. This permitted the witness to view the individual signing the instrument live via some form of video link, provided that:

• reasonable steps had already been taken by the witness to verify the identity of the individual and ensure the individual was the person entitled to sign the instrument; and
• the witness was an Australian legal practitioner or a qualified witness in the employ of a law firm or financial institution.

Despite these arrangements being a temporary response to the COVID-19 challenge, there would be benefit in more flexible document witnessing options being continued for legal practitioners.

Executing documents and oaths

New legislation passed in response to the global Coronavirus pandemic has significantly altered the witnessing and execution of a range of Queensland documents.

The Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 was made under the Queensland COVID-19 emergency response legislation and allows for the electronic execution and virtual witnessing of wills, enduring powers of attorney, advanced health directives, affidavits, statutory declarations, deeds, some mortgages and general powers of attorney.

These measures assist in overcoming the challenges of COVID-19 and provide access to justice for those in isolation and benefit those in regional and remote Queensland where face-to-face witnessing is difficult and costly.

These changes will operate to 31 December 2020. Embedding the changes, with appropriate safeguards, into the general law would be of significant benefit to Queenslanders given our disparate population and need for innovative solutions to improve access to justice.

Electronic conveyancing

The COVID-19 challenge has seen a marked increase in the take-up of e-conveyancing for property settlement. While paper settlements have continued throughout the pandemic, many firms have chosen to move at least some of their settlement operations to electronic form as a safeguard and defensive measure.

Embracing this innovation has been slowed to date by a number of factors, including some regulatory compliance issues and infrastructure issues – such as unreliable internet networks in parts of regional Queensland. However, the pandemic has shown us that flexibility in the use of settlement methods is, at least, an important part of disaster preparedness.

Footnote:
¹ nytimes.com/interactive/2020/us/coronavirus-uscases.html?action=click&module=Top%20Stories&pgtype=Homepage&action=click&module=Spotlight&pgtype=Homepage#states.

This story was originally published in Proctor June 2020.