No, really. I’m not kidding. They’ve had one since 1 October 2013. And it reveals so much.
Frame 1 ~ Web Design
The High Court uses its Vimeo account to host audio-visual recordings of its Canberra hearings. The most recent recording is of a case called Grajewski v DPP, which took place two days ago (12 October 2018). The video is stored at the following URL.
But that link won’t work. The High Court isn’t quite ready to brave the storm of angry internet comments just yet. So the two-hour Vimeo clip is actually embedded on the High Court website, accessible here:
If they wanted to, the High Court could have easily hosted these videos on their own website. But that would have required more bandwidth on their end. Instead, they’ve used Vimeo – a private, third party, multinational corporation based in the US, and blocked in China and Indonesia. Have they no dignity?
The High Court’s website is similarly cute. It looks like something out of 2005.
Notice the highlighted text in the top-left corner. The text is the same colour as the background (for the curious, that colour is #ae9566). If you were browsing the page normally, you wouldn’t see it. It’s there to help people with impaired vision, who are using screen readers to browse the internet. But it’s such a primitive solution! Other government websites, working under the same Disability Discrimination Act requirements, have managed to look far more elegant.
You can talk all you like about sovereignty, jurisdiction and Chapter 3 of the Constitution, but the website and the video undermine it all. When all’s said and done, the High Court of Australia is just 7 people in a room who don’t have the budget to hire a designer.
Frame 2 ~ Mooting
Looking at actual High Court hearings, it seems that there isn’t actually much difference between what law students do in mooting, and what barristers do before the High Court.
For a start, I have to commend the person who made the UNSW Mooting Submissions Template. The formatting looks awfully similar to Grajewski’s submissions – size 12 Times New Roman font, 1.5 spacing, numbered paragraphs, footnotes, party names in bold capital letters aligned to the right…
The principal difference, to my ear, is that mooting is actually much more condensed and well-prepared than High Court hearings. The pace of speech in the High Court is glacial.
In responding to questions, barristers too give the heretical response, “I’ll address that later on in my submissions”. Barristers wave their hands about. They stumble and they hesitate. They lapse into the vernacular. And they don’t do formal citation. The only excuse I can think of is that two hours is a long time to talk.
Frame 3 ~ The Law in Action
Bear with me. I’ll go through the case in the video above, of Paul Grajewski.
Section 195 of the Crimes Act 1900 (NSW) says “a person who intentionally or recklessly destroys or damages property…is liable to imprisonment for 5 years”.
Paul Grajewski climbed some stairs onto a coal loader as part of a protest, and refused to come down. He didn’t cause any physical damage to the machine. The machine operator stopped the coal loader so that Grajewski wouldn’t die. Police charged Grajewski for damaging property under section 195. Well, that certainly makes sense!
Somehow the NSW Court of Appeal decided unanimously that this did make sense, and upheld the conviction. But our protestor appealed. So the NSW Crown Advocate, David Kell, was left with the unenviable task of telling five High Court judges that damage doesn’t require damage. Kell is the barrister talking in the last 80 minutes of the video.
According to Kell, the case law adds two glosses on the meaning of ‘damage’:
- ‘rendered imperfect’
- ‘impairment of usefulness or function’
It’s essentially about drawing lines, relying on facts of past cases. Everyone agrees that throwing a stick into the gears of a machine is damaging the machine. But he goes further.
If dumping soil on a block of land slated for development is damage, then perhaps protestors lying on that land is also damage. If pouring petrol into a house is damage (because it makes the house unusable until the vapours disappear), then we might have some rule that damage is about usability.
This is crucial. If we accept these two things, then we might be able to say that a protestor getting onto a bulldozer and refusing to come down, is damage.
David Kell, the prosecutor, tried to frame his case closely to the existing law, using the language of ‘usability’. But that’s a bit dodgy – because, as Justice Geoffrey Nettle noticed, it involves sneaking in the personal safety of the protestor as a consideration in whether the machine can be operated.
We’ll find out the High Court’s decision in 3 days – on Wednesday 17th October, at 9:30am.
The architecture of the High Court is pretty. And the people are smart. But it’s not flawless. Indeed, anyone can see the flaws.
Above all, it shouldn’t be intimidating.