The punishing neglect of our state justice system

Courts housed in outdated and unsuitable heritage buildings are impacting jurors, staff and even trials in an indictment of government will and funding, argues Morry Bailes in his opinion piece for InDaily.

https://indaily.com.au/opinion/2023/11/16/the-punishing-neglect-of-our-state-justice-system/

The Chief Justice of South Australia, Chris Kourakis SC, has recently spoken to the media about the need for new and improved court buildings that are fit for purpose in the modern age.

It is to be interpreted as a gentle push to encourage and draw public attention to the current inadequacies of the physical infrastructure of many of our courts, some of which were built not very long after the state’s proclamation. They may be beautiful in a heritage sense, but many are wholly impractical in the context of the advancing 21st century.

It was not meant to be this way. Although there have been many false starts along the road to a new state courts complex, there was a moment when the legal profession thought it might actually happen. That was about 10 years ago. The then government had committed to considering a new court complex, using what was previously Commonwealth land gained in a land swap which ultimately enabled the Commonwealth to the build what is now the Commonwealth courts complex on Angas Street.

The state gained a parcel of land adjacent to and contiguous with the existing ‘old’ Supreme Court building. The scene was set for what had until then seemed to be the impossible; a new courts complex at long last.

There were focus groups set up to discuss design requirements. Three towers were proposed. One was for state courts, one for state tribunals, such as the South Australian Employment Tribunal (SAET) and the South Australian Civil and Administrative Tribunal (SACAT), and one for a proposed tenant, the Office of the Director of Prosecutions (DPP), and possibly other tenants, with need for close proximity to the courts. I remember clearly during one focus group session, my mind straying from what the architect was saying, wondering if this was all just words or if any of it was actually going to happen. It was all words.

In 2015, the government rejected the project on the basis that infrastructure for a new courts complex of $500 million was too much to spend. This was in spite of having shelled out well over $2 billion on the new Royal Adelaide Hospital and funnelling what was approaching nearly half of the state’s budget spend into health. As a state, we have now committed to a new Women’s and Children’s Hospital development to the tune of $3.2 billion. The annual health budget has topped $15 billion.

By comparison, the budget for the Courts Administration Authority to run the state courts is a little over $100 million. That does not include the state tribunal budgets nor what we pay as a state towards the legal aid budget (which draws its money from various sources including the Commonwealth). It does not include the Crown Solicitors Office or the DPP. However those combined sums pale by comparison with what is paid to many other government agencies.

In the 23/24 state budget, police received an additional $100 plus million. Maybe that is as it should be, but there are flow-down effects to the courts that have been all but ignored. Similarly, it should not be taken for a moment that our spend on health should be any less. It may be that it could be more efficient. These comparisons simply serve to demonstrate that we seem to prioritise the work of the third arm of government, our courts and the judiciary, not very highly at all.

What then did our Chief Justice say? His primary point is that in our discussion about the need for new and improved court infrastructure, it should not be seen as judges wanting better conditions for themselves. Certainly, the courts and tribunal staff deserve better, but the Chief Justice points out that it is the public, the many volunteers, and the users of court services who suffer. Jurors for instance are expected to deliberate in wholly inadequate and cramped rooms with few modern conveniences, no breakout areas in which to spend time away from the jury table, and technology solutions to view evidence cobbled together to get through.

That is not good enough. Jurors are volunteers. They play a vital role in the criminal justice system. They ought to have good facilities, and our courts should cater for modern and future tech. Presently, they don’t do that very well at all. They are old and dated.

On occasion, trials are not reached. Not because there are insufficient judges. No – they are not reached because there are insufficient courtrooms. That is unacceptable. Delay in the justice system owing to the fact that we are still operating in conditions that look decidedly 20th century, if not 19th century, is not placing the necessary emphasis on the interests of victims of crime to conclude their involvement in the criminal justice system and accused people to exercise their right to a timely trial.

The first attempt in my memory to get a new courts complex established was in 2003, when the Rann government proposed a new site on what is now the SA Water building. It failed because it proposed to split the courts between its criminal and civil jurisdictions, which was not ideal. After the 2015 debacle, when the three-tower idea went belly up, we have had a piecemeal approach to infrastructure upgrade.

Some money has been spent. Resources have gone into a new electronic registry system, which is good. Some work has been done to the ‘old’ Supreme Court building on Victoria Square. The primary higher court trial facility, The Sir Samuel Way building, has received some attention, but it is all patching over an underlying problem; these old buildings, inadequately renovated, are just not up to it, as pleasant as they may look from the outside.

The story told of the “old” Supreme Court building was a rumour that within the court was a mattress fastened to a wall, strategically placed in case one of the judges, when descending the ancient stairs from the bench, should miss one of the steep steps and take a tumble.

Then one day I was shown a photo. Rumour no more. It was true. Whether that relic remains or has been removed I don’t know, but it seemed to just about crystallise life in these old courts buildings, and just how much the standards depart from the usual expectations of occupational health, safety, and welfare in a workplace.

Standards that the public would expect, when they are asked to participate in court processes as jurors, as witnesses, as support people for those who endure the court process, and as users of the courts civil or criminal.

The Chief Justice necessarily made his points with great diplomacy. However, those of us in the legal profession who work daily in these buildings can be rather more direct. They are substandard. That the justice system and the courts and tribunals should be passed over again and again because judges are not in a position to engage in public advocacy, and because lawyers don’t whinge enough, and because it is not an electoral winner, is tantamount to saying the justice system is unimportant.

Yet in the minds of the public it is anything but. We read about criminal trials and happenings in the courts every day of our lives. It is the justice system that holds parliament and executive government to account. Thousands and thousands of people use these institutions on a daily basis. We rely on the justice system and the courts to knit our society together. Justice and rule of law is everything to us. It is fundamental to the functioning of our democracy and our communities. We would be lost without it. And it needs to be adequately funded, both in respect of its ability to provide services, but also in respect of its infrastructure.

I have been practising law for 35 years. Nothing about those buildings that we use daily has changed much. There was a time when the government kindly allowed the Magistrates Court to operate in the old tram barn building on Angas Street. Gee, that was fun. Clients were mildly bemused when it was explained where they were to have their court ‘date’, requiring occasional reassurance that they were indeed in a legal office and had not accidentally stumbled into the State Transport Authority building.

The ‘old’ Supreme Court has operated as the Supreme Court building since 1873. The building is however older than that. Courtrooms 1 and 2 would recommend themselves to a Dickensian court scene period drama. The Sir Samuel Way Court is the younger sibling. Positively spritely by contrast, it began life in 1916 as the Moore’s Emporium. The building started its current iteration as a court in 1983. It must have been quite nice then.

As to the Youth Court, it received a ‘recent’ makeover in the year 2000. Admittedly that took an edge off its ghastly 70s feel, yet Parliament was told earlier this year that it is now woefully out of date, and needs additional courts. A lack of courts can lead to delay. It certainly means the Youth Court has to ferry youths to adult court facilities to have their matters heard.

How is it that we can explain to the public that because we haven’t had a new higher court constructed for 40 years, the justice system can’t function properly and that the matter in which they have an interest must wait? Justice delayed is justice denied. The same can be said for some of our tribunals. The South Australian Employment Tribunal suffers from a chronic lack of space in its design. It is anything but user-friendly.

The inadequacies of these various buildings are due to the period of their design and include a failure to cater to current and future technology needs within the court rooms themselves. That there is insufficient space for those involved in a trial or hearing, is the same in many of our courts, meaning that highly undesirable situations arise such as accused people meeting the accuser, witnesses sitting together who should be apart, with little allowance made for personal space, including a critical lack of meeting rooms outside courts.

Victims of crime are denied privacy, with the atmosphere outside a court which is sitting, more like a circus at times. As earlier mentioned, jury facilities are hopeless. As the Chief Justice recently said, “It’s a tribute to the community and the way its members serve, that they get through it”, meaning the experience of participating in some way in our courts processes’.

New courts ought to address these and other issues, including significant technology upgrades in the courtrooms to allow for the paperless trial, which in turn means equipping jurors and jury rooms with tech to enable that outcome. Simple issues like fixed walls make the current courts and tribunals utterly inflexible. In short, we need to start again with designs that are fit for the 21st century.

The money to build a new courts complex should have been stumped up 10 years ago. By today’s building standards, $500 million would have been a bargain. The government of the day regardless of complexion has to fix this problem that has been simmering for decades. The legal profession ought advocate vociferously and unapologetically for new courts infrastructure, in the interests of the whole of the people of South Australia.

We have been let down repeatedly by successive governments. South Australia requires new courts. What we have now is wanting and it is time to start again. Such is the importance of the courts and justice system to us, we owe it to the public to insist on action.

First published InDaily 16/11/2023