This week, the United Kingdom’s and Australia’s apex courts each held hearings that touch on recent votes in each country. The UK Supreme Court’s Brexit case (on whether triggering the UK’s exit from the EU is a matter for parliament or just the executive) is broadcast live on the Court’s website. The High Court’s Culleton hearing (where the Court of Disputed Returns will determine whether the WA One Nation Senator was disqualified by a since annulled conviction for larceny) can now be viewed on the Court’s AV archive, albeit not live. One difference that seemingly follows from this is that the video record of the Court may be incomplete. A possible example is an incident at the hearing described in The Guardian as follows:

The high court hearing into Rodney Culleton’s eligibility as a senator was interrupted by a One Nation member who labelled it a “star chamber” and “kangaroo court” after Culleton lost a bid for an adjournment. The dramatic interjection was made by member John Wilson, without Culleton’s knowledge. The senator’s chief of staff, Margaret Menzel, then remarked “he’s right” and his wife Ioanna Culleton said “at least someone has the guts to stand up [and say it]” as Wilson was asked to leave the court room.

I have been unable to locate this incident on the video recording of the hearing that appeared on the High Court’s website yesterday afternoon. Interestingly, though, there appears to be an unexplained, and unsignposted, break in the recording just after the 36 minute mark, immediately after Kiefel J says the words ‘We will now proceed to hear the substantive argument.’ You can see it most clearly by watching Keane J’s hands.

As noted in an earlier post, interruptions in apex court proceedings, usually as a form of political protest, are nothing new. However, video recording of hearings is a recent phenomenon in the High Court. If it is correct that the interruption and other events described in the media indeed occurred in the above break, then it appears that the Court may have an unannounced policy to remove these events from thevideo  record. The Court’s press release announcing its recording project states:

Recordings will be made available from an archive on the Court’s website, initially likely to be a few business days after hearings. This will allow for vetting of recordings to avoid the possibility of information which should not be published being published – such as a name which is the subject of a publication constraint.

A note on the Court’s website states that ‘The audio-visual material available via our web-site of Court proceedings does not constitute the official record of the Court.’ However, there is no mention of any policy of redacting interruptions to the proceedings. And there is no sign in the written transcript of this incident either.  By contrast, the recent interruption to question time in the federal House of Representatives was duly noted in Hansard as follows:

Ms PRICE (Durack) (14:01): My question is to the Prime Minister. Will the Prime Minister update the House on the government’s achievements, including how our economic reform—
An incident having occurred in the gallery—
The SPEAKER: Sitting is suspended until the ringing of the bells.
Sitting suspended from 14:04 to 14:40
STATEMENT BY THE SPEAKER
Public Gallery: Incident
The SPEAKER (14:40): I thank the House. Obviously, the action I took in suspending the sitting was a last resort, as members would know and have witnessed. I wondered whether we could plough on in the extraordinary circumstances and I made a judgement that we could not. Our purpose here is to conduct the business of the House and, for the period of time we have been suspended, it is very clear we were unable to do that. The dignity of the House would have been severely compromised had we continued. I just say that to members and I think we can resume.

While it is understandable that the High Court would not want to include words yelled from the gallery in the record – both to avoid inadvertently encouraging such interruptions, and also because they may include obscenties, defamation or the like – the approach in Hansard, in my view, shows an appropriate way to include the event in the official record.

A particular reason to include the Culleton incident in the High Court’s record is indicated by an additional report by the ABC:

Incoming Chief Justice Susan Kiefel adjourned the court after failing to dissuade the man who had to be removed by court officers.

This indicates, first, that the Court actually adjourned in the hearing, something not indicated even on the written transcript (even though other adjournments are routinely noted, together with the times they begin and end, in the transcript, including this one, and the video usually shows the judges’ walking in and out.) That the incident in this week’s hearing was serious enough to cause an adjournment is surely something that is a matter of public interest. Secondly, the ABC report indicates that Kiefel J actually spoke to the man. Again, for a variety of reasons, how the incoming Chief Justice dealt with this incident, and specifically what she said, is of possible current (and, perhaps, historical) interest.