When Emily* thinks back to her virtual court hearing in 2021, one comment sticks in her mind.
"That sounds like a COVID casualty to me," she remembers the magistrate quipping as they reviewed the duration of her matter.
More than a year earlier she had applied for her Family Violence Intervention Order to be extended, and after months of rescheduled hearings and sleepless nights, the end was finally in sight.
She remembers the off-hand comment because it was the moment she realised it must mean many others were enduring a similar ordeal.
"Those words had clearly been used before, it was clearly an entrenched term," Emily says.
"It's when I knew there really was something wrong with the system."
Years on from the onset of pandemic shutdowns, courts of all levels are still making their way through piles of backlogged matters, forcing victims, witnesses and defendants to endure delays far beyond the nationally agreed benchmarks.
In the previous financial year, nearly half of all matters before Australian criminal courts took more than three months to reach a resolution, according to new data released by the Australian Bureau of Statistics on Friday. The data does not include matters which are yet to be finalised.
In some cases, the process was far longer. In 2021-22 nearly 60,000 cases — or more than one in nine matters before criminal courts around the country — took a year or more to resolve.
The delays are most severe in Victoria and Tasmania, where the median length of a matter was almost six months.
That might not sound like very long, given how long trials reported in the news tend to run, but many matters that go through the court are relatively mundane. For example, 35 per cent of finalised matters in Magistrates' courts — which handle the bulk of cases — are traffic offences.
In higher courts, which typically deal with more serious offences, across Australia most matters took more than 36 weeks to be finalised in 2021-22.
Comparable backlogs also exist for civil matters, like intervention orders, according to data from the Productivity Commission.
"When I started to practise, which was a long time ago, after charges were issued it was usually listed within a few months," the Law Institute of Victoria's president Tania Wolff says.
"I think that's probably where we would be wanting to get [back] to."
Life in limbo
Emily describes the 18 months she spent waiting for the magistrate to make a decision on her application like "being suspended in mid-air".
"If it's granted, great, if it's not, fine, I'll move forward in my own way," she says, "but you're living in this suspended state of not being able to move forward, not being able to move sideways."
She ended up having three directions hearings scheduled before the intervention order was granted; the first she missed after misunderstanding the documentation, then the second was postponed at the last minute after a police assessment was not able to be completed on time (but not before she paid for a lawyer to represent her at court that day). It was the third directions hearing, in the middle of 2021, when she heard the phrase "COVID casualty".
Emily was studying criminal law while going through this process. "It was interesting for me to see, in theory, how it's supposed to work, and how in operation, it's just a very clunky system," she says.
Trying to navigate this, while mentally preparing for all possible outcomes, took a toll on her ability to juggle work and study. When the order was granted, she says, she slept for a week.
"You go from one emotional prison of being concerned about contact from a particular person, being owned by an individual, and then next you're being owned by a system, and you have no control over what's happening," Emily says.
"It was the court system that was even more exhausting than the cause of it."
Wolff says this limbo state can have a significant impact on the welfare of anyone involved in a court matter. "If you have a matter which is concerning you that can't be resolved, and you're stuck in that place for a very, very long time, you end up despairing," she says.
"That impacts you but it also impacts the way in which you consider this justice system, which is a cornerstone of our democracy."
Wait times were creeping up before COVID
Emily began the proceedings in March 2020, just as COVID began to arrive in Australia. Between then and October the following year, when the order was granted, her home city of Melbourne would endure six lockdowns, forcing court operations to grind to a halt.
But even before the disruption of the pandemic, the time it took for matters to make their way through the courts was creeping up in some jurisdictions.
The most recent data shows a modest improvement on the delays at height of the pandemic emergency. In Victoria, the median finalisation time has fallen by about a week and a half.
"It's now that the courts are back up and running that we're really seeing the full extent of the delay," Victorian lawyer Louise Conwell says.
"The effect of COVID was that we really couldn't deal with matters at all, we were working in a sort of emergency situation — just trying to triage matters and deal with what we could."
When it comes to the large gap in how long it takes to finalise matters between states, Professor Tania Sourdin from the University of Newcastle says it's not only a result of lockdowns but also a difference in priorities.
"I think what we're actually seeing in Victoria is a greater focus on treatment," she says. "A bigger focus on more therapeutic approaches, considering drug and alcohol treatment, and that may be leading to a lower overall filing rate."
In Victoria, there has also been greater use of jury trials — which tend to take longer than judge-only trials — than in states like NSW.
Sourdin says the Victorian Government invested in more judicial officers before the pandemic, but the COVID-related lockdowns meant the impact of that is yet to be seen.
"Hopefully over the next year or so we'll begin to see a decline but it's going to take some work to reduce what is now a significant backlog," she says.
National benchmarks for the time it should take for matters to be resolved by the courts were adopted in the early 2000s, and the Productivity Commission reports on these every year.
The benchmarks say no more than 10 per cent of matters in magistrates' courts should take longer than six months to be finalised, and in higher courts, no more than 10 per cent of matters should take longer than a year.
No state or territory is meeting them, in either the criminal or the civil courts.
In the magistrates' courts, all states have fallen short of the standard for a decade. NSW has tracked closest to the benchmark in the criminal courts, but has seen worsening backlogs in recent years.
Wolff says delays in the civil courts, like administrative tribunals where claims are often relatively low-value, can quickly disrupt people's lives. As an example, she points to the Victorian Civil and Administrative Tribunal, where anecdotally she has heard of lengthy delays.
"It might be that you have an issue with your tenancy and that's not being resolved … or you're a landlord and you're not being able to move someone to comply with the conditions of their lease," Wolff says.
"If you have a significant event in your life, which can't be resolved until a future date, and that keeps on getting kicked down the road, that is going to impact on your mental health, that's going to impact on your ability to get on with your life."
Those found not guilty wait the longest
In criminal court matters, defendants in about 85 per cent of cases are found guilty, while the remainder are either acquitted, transferred to other courts, or have their charges dropped by prosecutors.
And it is those found not guilty that, on average, are waiting the longest for justice to be served. That's in part because the average wait time is pulled down by people who plead guilty, avoiding the need for a trial.
About 23 per cent of people who end up being acquitted or having their charges dropped wait more than a year for that outcome.
"There were already delays in having matters proceed through the criminal justice system prior to the pandemic, but the period in which it takes for a matter to be dealt with is now significantly protracted," says Conwell, a criminal law specialist at Stary Norton Halphen.
As a result, she says she routinely advises her clients that if they plead not guilty, it may take up to a year and a half for the matter to be heard.
"In the high jurisdictions, the County Court and the Supreme Court, we're talking about years from charge to having a trial heard," she says. "And that includes people who are remanding in custody, awaiting their trial, and presumed innocent."
A record 36.6 per cent of Australian prisoners were unsentenced at the end of June last year, according to data released last week by the Australian Bureau of Statistics.
For many of these people, any delay in court proceedings can mean additional weeks or months behind bars. "They may well spend a year in custody awaiting trial before being ultimately acquitted and released into the community to have to piece their lives back together without financial assistance, without compensation," Conwell says.
"The time that they spend in custody we colloquially refer to as 'dead time' — it's not automatically deducted from any other matters they may be facing, it's simply time spent in custody awaiting trial that is not attributable to any other place."
Defendants awaiting trial in the community may also be subject to onerous bail conditions, including curfews and regular reporting.
Can we get it under control?
Wolff believes it's possible to reduce backlogs back to the size they were when she started practising, but says getting there will require "some smart justice solutions".
"It needs to involve diversionary mechanisms, to make sure that only those matters that really need to go before a judicial officer do," she says. "It needs to increase the use of cautions, particularly for youth offenders, and diversionary measures."
In Victoria, she points to the summary offence of begging or gathering alms as one example of where the state could take a different approach. "There's no reason why that should be a criminal offence that could go before a magistrate, given that the solution for that is sustainable, accessible housing," she says.
While the Victorian Government has taken some steps to reduce the backlog, Sourdin says attention needs to be directed to other states drifting further from the benchmarks. "With some of these other states where you're seeing like a continuous climb [like in] Tasmania, I think there needs to be remedial action taken immediately."
From her perspective on the courtroom floor, Louise Conwell struggles to see how the situation will improve in the near future. "I think we will be dealing with it [backlogs] for a number of years to come," she says.
"Justice delayed is justice denied, that's true for victims, witnesses, police officers, prosecutors, defence lawyers, and most certainly the accused person."
*Names have been changed.
