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Emergency COVID-19 laws ‘must not undermine justice’, says Tim Game
The NSW Bar Association president said he understands the necessity of the emergency COVID-19 laws but that there are “substantial” risks of unfair outcomes.
Naomi Neilson
A NSW government bill, which passed last week, introduced swift and temporary changes to a range of existing laws so the state and the court system are as equipped as possible to respond to the threat of the coronavirus pandemic and reduce risk of transmission.
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While welcomed by the NSW Bar, president Tim Game SC said there are two aspects of the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 that were among those the association opposed in consultation, which remain of “great concern”.
“While it is important at this time to find different ways of proceeding, the bar association considers that [it] can and should occur in a manner that also maintains public confidence in the administration of justice,” Mr Game said in response to the bill.
The first concern relates to the proposed amendments relating to pre-recorded evidence in criminal trials. Mr Game said prerecorded evidence is not yet in a position to run. Doing so will be “inconsistent with the fundamental concept” of a criminal trial, “where evidence is led in support of a prosecution case and is tested on that basis”.
Mr Game said there are no safeguards to ensure the integrity of the process. In addition, there are concerns prerecorded evidence for use in subsequent trials, if done in the way it has been proposed, “can only be done at the substantial risk of unfair outcomes”.
“While this may be justifiable in relation to persons who are significantly greater risk than others in the community from the virus, it is not otherwise justifiable,” Mr Game said.
The second concern concerns broad regulation-making powers. Mr Game said there are no necessities for this range of power with its potential to overtake what already exists.
“We certainly consider that any power of such breadth should only be exercised with sole consent of the Chief Justice of New South Wales following consultation, if he has deemed it necessary, with the relevant head of jurisdiction,” Mr Game finished.
AN: Due to how quick updates from courts are coming through, Lawyers Weekly has been compiling updates on how the viral coronavirus pandemic is affecting the justice system. For the most up-to-date information, check out our live blog here.
