Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Quick Post: High Court to publish footage of hearings, and this is bad #auslaw #auspol

Justice Michael Kirby, High Court of Australia
Justice Michael Kirby, High Court of Australia (Photo credit: Wikipedia)

Over on the Opinions on High blog, Jeremy Gans gives a quick overview of the High Court’s decision to make footage of its hearings available to the public.

Up until now, transcripts of hearings have been made available through AustLII, providing hours of entertainment through Shit Judges Say and my favourite transcript ever:

KIRBY J: Mr Rout, the document you have tendered to be filed in the Court is called an electoral petition.


KIRBY J: It appears to challenge the election to the Australian Capital Territory seat of Fraser.


KIRBY J: It makes statements concerning the former Chief Justice and said that he is off with the late Mr Skase in Majorca in Spain, which is simply not the case.

MR ROUT: Yes, a little humour added there.

KIRBY J: It just has nothing to do with the case. We are very busy people, I am afraid, and you seem to be wasting our time.

MR ROUT: No, because you are called upon to apply the law.

KIRBY J: Exactly.

MR ROUT: And the law is their set of dividing and multiplying by zero. As long as they maintain their incorrect dividing and multiplying by zero, then they enable me to cause things to cease to exist, and that is why I have the power to do so.

That never gets old.

Other courts are not nearly as good as the High Court in this regard.  Greens Senator Sarah Hanson-Young is suing a magazine for what appears to be obviously protected political speech, but we have to rely on a fairly sparse news report for the details because the NSW Supreme Court doesn’t provide much but judgements to the public for free.

The thing about transcripts is that you have to read them.  The flares and flourishes of lawyers are stripped away, leaving cold hard words on the page.  Unlike in the US, Australia hasn’t had much difficulty with the celebrity lawyer problem but the issue is on the rise.  Over the past two years or so, there’s been a long standing legal dispute between former Liberal MP and former Speaker of the House, Peter Slipper, and his former staffer, James Ashby.  One of the issues noted was the use of the court by Ashby’s legal team to run a media smear against Slipper.  Footage wasn’t available from inside the court, so Ashby’s team had to rely on journalists to report the key points of the smear.

Had footage been available, it would have increased the likelihood of the lawyers making soundbite pitches to appear on the evening news.

We also see the problem in cases involving asylum seeker issues.  It is difficult enough to keep on top of the often very complicated legal issues surrounding these cases.  But, invariably, there’s one of the usual activist lawyer faces simplifying the legal argument into a handy soundbite outside the court.  Publishing the footage of the hearings provides an incentive for activist lawyers to campaign from inside the court where they should be trying to deal with legal issues.

One of the exciting things about cases in the High Court is the exceptional intellect of the people who appear there.  They’re usually not interested in being flashy or media-friendly; they’re more interested in subtle, intricate, nuanced arguments.  Publishing footage from inside the courtroom provides an incentive away from that kind of discussion towards performances that can be tweeted and shared over social media.

Transcripts are great.  Footage is not.


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