Chief Justice Andrew Bell has today published two new Supreme Court protocols, which are based on a presumption that, beginning on 4 April, substantive hearings and contested matters will be heard in-person rather than via AVL.
This important announcement heralds a new phase in the court’s response to the pandemic. The Supreme Court Revised COVID Protocols and the Protocol for Supreme Court Criminal Jury Trials include precautions in respect of masks, vaccination status, courtroom capacity, rapid antigen screening and criminal trial ‘bubbles’. They also provide for the continuation of registrars’ lists and uncontested matters to proceed via AVL only, and in the event that legal representatives and interested parties are unable to attend in-person due to COVID or related reasons, then applications may be made to participate via AVL. I urge all members of the Bar, whether or not your practice takes you often to the Supreme Court, to study the protocols closely.
The new protocols are consistent with remarks made by Chief Justice Bell during his swearing-in ceremony. His Honour noted that since the start of the pandemic the profession of law has, to an extent, become depersonalised. In his view, ‘whilst the remote practise of law may be possible, it is far from desirable’. He continued:
"The administration of justice is best served in open court for reasons which are profoundly important… It is incumbent on senior members of the profession to take the lead in the return to professional life as we knew it more than two years ago."
The Bar Council recognises that having to cancel conferences, in-person CPDs and social events has eroded the general sense of collegiality. After all, it was only last week that we held the 2021 Bench and Bar Dinner. Add to that, chambers are the reinforcing rods of collegiality, and his Honour was at pains to highlight the consequences of rolling lockdowns, public health restrictions and the increased tendency to work from home. He said:
"…the absence of practitioners from chambers and solicitors’ offices will sap them of vitality and will stunt the personal growth and professional development of young lawyers in particular."
In this President’s Message I join the chorus calling for a return to chambers, albeit in a COVID-safe way.
I remind everyone that the Bar Association’s Strategic Plan 2021-25 aims to support barristers in the conduct of their profession and their practice. Subordinate to those aims are initiatives designed to ‘Support the Bar as we all deal with COVID-19’. The Strategic Plan was approved in March 2021 but at the time some queried whether the emphasis on COVID-19 is warranted. Twelve months later, the answer is plainly in the affirmative. Over summer the Omicron variant caused a wave of infections and hospitalisations, with all the attendant disruptions. Until the start of March the rhythm and tempo of operations at the Bar Association was still punctuated by daily gathering and distribution of information on social distancing, rapid antigen testing and a range of practices and procedures for state and federal courts across NSW.
The wider question for the profession is: how do we affect a return to a semblance of professional life as it was before the pandemic began, as the chief justice has exhorted us to do? Recently, I announced the Bar Association’s COVID-19 Re-Opening Plan: a roadmap for the return to in-person services. I have written more about this in the upcoming edition of Bar News. Next month the Bar Association will begin Phase 4 of its plan: COVID-safe ‘business as usual’. The Bar Library and Reception are already open full-time and from this date the Common Room will be open for pre-booked, COVID-safe events. CPDs will be online but with regular hybrid events.
Yet, while Chief Justice Bell’s remarks point in the direction of a return to in-person advocacy, does this mean a return to professional life as it was before the pandemic? Will all aspects of a barristers practice revert to the way they were? On balance, that isn’t likely.
The Bar Association itself has been part of a much larger operation to minimise disruption to the legal system and to pivot in the way we deliver our services. In particular, committees now meet mostly online with the result that attendances are higher and members in suburban and regional locations are now able to participate more readily in the policy work of the Bar. A case on point is Nicholas Broadbent, a public defender based in Dubbo. Throughout the pandemic Nick has served as Bar councillor, honorary secretary and he is now the Bar Council’s representative in the Western Region. Such inclusion would have been impossible before AVL technology reached maturity. Similarly, professional development, including both CPDs and the Bar Practice Course, have undergone nothing short of a revolution in the way they have been delivered either entirely online or in hybrid in-person and online sessions.
The Supreme Court protocols announced today, like their counterparts in the District Court and other jurisdictions, have been promulgated in consultation with the Bar and the Law Society. But I advise members to remain mindful of your own health and wellbeing, in addition to your duty to act in your client’s best interests.
While the Bar Association recognises the efforts of the courts to resume in-person hearings, difficulties may arise for members in practice. You or someone essential to your trial preparation may test positive to COVID-19 – or be required to isolate. If you find that an application to the court for an AVL hearing is unsuccessful or an adjournment is refused where the interests of justice require one, the Bar Association is happy to raise particular concerns with the heads of jurisdiction on your behalf.
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