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New Zealand: Court of Appeal and Supreme Court Issue Protocol for Remote Hearings During COVID-19 Restrictions

(Apr. 28, 2020) On April 17, 2020, the Chief Justice of the New Zealand Supreme Court and the President of the Court of Appeal issued a protocol that will apply to remote hearings of the two courts while the country is subject to various restrictions in response to the COVID-19 pandemic. The country entered “Alert Level 4” on its four-level alert system on March 25, 2020, and moved to “Alert Level 3on April 28, 2020. The protocol will be applied at both of these levels.

Previously, “[t]he heads of bench . . . decided that only proceedings affecting the liberty of the individual or their personal safety and wellbeing, or proceedings that are time-critical” should be heard while the country was at Alert Level 4, and “[t]o the maximum extent possible, and to avoid the need for people to attend court in person, the courts will use remote participation to hear these matters. Remote participation may involve AVL (audio-visual link) where that is possible, telephone or email.” Prior to moving to Alert Level 3, the Chief Justice stated that “[t]he type and volume of work in the courts will continue to expand,” involving “a mixture of in-person hearings, hearings in which some participants may appear remotely, and virtual hearings in which no one, other than a registrar, may be in a courtroom.”

The protocol on remote hearings states that the Court of Appeal and Supreme Court will conduct virtual hearings “using a web browser-based video conferencing system supported by the Ministry of Justice and Spark [New Zealand’s largest telecommunications and digital services company].” It provides information on setup requirements, test calls, hearing protocol, how counsel should conduct themselves, and attendance of observers. For example, it states the following:

  • The Registrar will be physically present in the courtroom.
  • “Gowns are not required for the hearing; however formal attire is required.”
  • Counsel and the Registrar are to connect 10 minutes prior to the hearing, and the judges will enter the virtual hearing once the Registrar confirms that all parties are connected and there are no audio-visual issues.
  • “The Registrar will then call the case and the presiding Judge will ask counsel to enter appearances as usual. The presiding Judge will then inform counsel of how the hearing is to proceed.”
  • “The hearing will run as close to a hearing-in-person as possible but will be less interactive than a hearing-in-person.”
  • “Members of accredited media organisations may remote in to any virtual hearing. They may also attend in person in the courtroom where the hearing is being hosted.”

The use of AVL in New Zealand courts is authorized by the Courts (Remote Participation) Act 2010 and sections 103 to 106 of the Evidence Act 2006. The District Court and High Court have also continued to operate under the different alert levels to deal with priority proceedings, with AVL being used whenever possible.