News: The High Court blurs the moment

Today’s High Court announcements on same-sex marriage, immigration detention and consumer law were doubtless disappointments for some. However, the one body that may be especially disappointed is the Court itself. The Canberra Times reports:

The court handed down its findings in the landmark case about 12.15pm, although a statement announcing the decision was accidentally published on the court’s website about 20 minutes earlier.

While French CJ’s announcement in Courtroom 2, reportedly greeted by silence and sobs, was anticipated by many legal observers, others knew exactly what the Chief Justice would announce. Indeed, Opinions on High is aware that the judgment summaries were published on the Court’s website at least two hours before the 12.15pm official announcement of the court’s decisions and revealed the outcomes (and a summary of the reasons) for all three matters decided today.

So, how did the premature release happen and what are its consequences?

The early release is a byproduct of the Court’s laudable efforts to ensure that its decisions are understood. Misunderstandings of national court judgments can be serious matters. In 2012, the United States Supreme Court released probably its most highly anticipated judgment in years, its ruling on the constitutionality of aspects of Obamacare.  The US Court’s practice is for judges to read out some or all of their judgment orally, while staff simultaneously post the reasons on the Court’s website and distribute paper copies to the parties and media. After the Court’s website was predictably overwhelmed, some of the few with access to the reasons – which turned out to be determined on an unexpected basis – initially misunderstood it, misinforming not only the public but the President.

In Australia, the High Court has long sensibly reduced such risks by publishing media-friendly judgment summaries on its website simultaneously with the release of the reasons. However, the flaw in the Court’s approach is that the summaries are uploaded into their assigned web addresses in advance, albeit without any hyperlinks from the Court’ s main judgment summaries page until the decision is formally announced. The URLs for the summaries use a standard format, including the date of the judgment and the case’s decision number for this year, both of which are obvious to informed court followers. So, those in the know can who can simply guess the URL of future judgment summaries, without the need to wait for a hyperlink.

The most obvious consequence of today’s early release of the judgment summaries was emotional. Some supporters of same-sex marriage received early confirmation of bad news that most already expected.. The emotional consequences might have been greater if the decision had gone against expectations. An analogy that comes to mind is the surprise and welcome announcement that Cathy Freeman would light the Olympic flame at the 2000 Sydney games, erroneously made an agonising 40 seconds before Debbie Flintoff-King passed her the torch (see from 4 minutes or so in this video). Roy and HG evocatively described announcer John Stanton’s mistake as ‘blurring’ the national magic moment.

Crucially, the early release of a national court’s decision can have much more serious consequences. In particular, the Court’s decisions sometimes have far-reaching economic implications, as in the cases of its 1997 judgment invalidating state excise duties, its 1999 judgment invalidating cross-vesting and, more recently, its less surprising judgments upholding the mining tax and plain tobacco packaging. Premature release of information risks affecting the market and perhaps even permitting insider trading, even for less dramatic decisions. Consider, for example, the possible impact of today’s rulings on Canberra wedding facilitators, immigration lawyers and broadband advertisers.

Doubtless the Court will now change its practices when it comes to uploading judgment summaries online. Hopefully, it will settle on a secure way to continue to provide the media with timely, accessible information about their judgments.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

2 thoughts on “News: The High Court blurs the moment

  1. Thanks for the post re “blurring” the moment. It is, as other Opinions on High posts, highly informative and clear, even for a non-Australian.

    I just wanted to point out the way the US Supreme Court posts its judgments online. Files are named after the docket number+4 random characters (letters and/or digits). For example, the latest ruling’s file name is 12-609_g314.pdf. This method may help avoiding premature discovery of judgments.

    In addition, in UK courts, reserved judgments are usually sent to counsel a week in advance to legal representatives (and may be disclosed to the litigants 24 hours before hand-down). This is done for checking for typos and the like (e.g. Practice Direction 6.8.3–6.8.4 of the UKSC). Judgments may also be given to the media in advance, under strict confidentiality conditions (e.g. Practice Direction 6.8.5 of the UKSC). At least once did this arrangement enable a lawyer to ask the court to re-consider after hand-down, even though she only saw the judgment about 2 hours before that. Not that it helped her client, though.

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