Australian Press Council Public Address - 22 March 2007

Access to Justice - The Media, the Courts and the Public Record

The Hon Wayne Martin, Chief Justice of Western Australia[1]

Overview

It's a privilege and an honour to have been asked to address this public meeting organised by the Press Council of Australia. Since my appointment as Chief Justice of Western Australia last year, I have made it clear on a number of occasions that I regard improvement of access to justice as a key priority. The media, both print and electronic, have a critical role to play in improving public access to, and comprehension of, our justice system. In this address, I want to emphasise the way in which that role can be enhanced by the continuing development of a positive and co operative working relationship between the courts and the media.

The courts must accept and reinforce the importance of the role played by the press and broadcasters as the medium by which the public gather information about the workings of the courts. I will also address what has been described as "practical obscurity" which limits the capacity of the media to communicate effectively what is happening in our courts, and ways in which that might be addressed. I will touch upon the subject of suppression orders, and deal at some length with my views in relation to the desirability of increased broadcasting and webcasting of proceedings in our courtrooms.

Public Confidence, Accountability and Independence

Unfettered public access to proceedings in our courts, often described as the principle of open justice, has been accepted as a fundamental aspect of the conduct of our courts since they commenced operation upon the settlement of the various Australian colonies. The principle was, of course, inherited from Great Britain and is shared with other justice systems having common origins.

There are at least three aspects of the public interest that are of profound importance that are served by the principle of open justice. The first is accountability. The judicial system and the courts exist to serve the public and the community. They give effect to the community interest in the rule of law, including the enforcement of law and order in our community, and the peaceful resolution of disputes between members of the community and each other, and between members of the community and the State. The public has a very real and legitimate interest in knowing whether or not the courts do in fact achieve these vital objectives, and whether they do so fairly, in the sense of treating equally all who come before the Court, whatever their wealth, colour or creed, justly, in the sense of an adjudication that accords with law, and efficiently, having regard to the substantial public and private resources that are invested in our justice system. So open justice provides a mechanism by which the courts can be held accountable to the community which they serve.

The second vital interest served by open justice is that of public confidence. That great American Judge, Felix Frankfurter, famously observed:

The Court's authority - possessed of neither the purse nor the sword - ultimately rests on sustained public confidence in its moral sanction.[2]

Public confidence depends upon transparency. No reasonable person could be expected to have confidence in a system or process which he or she cannot see in operation. That is why democracies born of the English tradition insist that their legislatures proceed in public. The public are naturally and reasonably suspicious of anything that they cannot see in operation. Courts that have operated behind closed doors, such as the much maligned Court of Star Chamber have always been the subject of public suspicion. In this State, the predecessor to the Corruption and Crime Commission was required, by its legislation, to generally operate behind closed doors. In my opinion, that was a significant source of the loss of public confidence which led to the demise of that body, and its replacement by a body which has generally operated in full public glare, more recently a spotlight, which has enhanced public confidence in its operations.

Chief Justice Diana Bryant has referred on a number of occasions to the adverse effect which the prohibition upon the identification of parties to Family Court proceedings has had upon the public awareness of the procedures and principles which are applied in that Court, because of the reduced reporting of those proceedings. I don't understand her to be suggesting that the prohibition should be removed, but rather to draw attention to the need to pursue other means of informing the public about the activities of her Court.

The third great interest served by the principle of open justice is the preservation of the independence of the judiciary. Chief Justice Spigelman recently drew attention to another significant observation of Justice Felix Frankfurter:

A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other, both are indispensable to a free society. The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.[3]

In those fortunately few instances in which the independence of the judiciary has been threatened, it has generally been the media which has come to our aid, galvanising public opinion so as to prevent undue government interference with a free and independent judiciary.

Accountability, public confidence and independence are not merely cosmetic aspects of our justice system - they are fundamental to its successful operation - indeed, to its very existence in the form in which we know it. All depend upon the principle of open justice.

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Justice must not only be done but be seen to be done

The aphorism that justice must not only be done but be seen to be done is usually attributed to the judgment of Lord Chief Justice Hewart in R v Sussex Justices Ex parte McCarthy, in which his Lordship held:

... it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." [4]

I am indebted to Chief Justice Spigelman for pointing out the dubious provenance of this fundamental proposition. He has pointed out that Lord Devlin, writing in 1985, said this of Chief Justice Hewart:

Hewart ... has been called the worst Chief Justice since Scroggs and Jeffries in the seventeenth century. I do not think that this is quite fair. When one considers the enormous improvement in judicial standards between the seventeenth and twentieth centuries, I should say that, comparatively speaking, he was the worst Chief Justice ever.[5]

A more evocative statement of the principle was employed by Lieutenant- Colonel John Lilburne at his trial for high treason in 1649 at the Guildhall of London, describing as "the first fundamental liberty of an Englishman" at his trial the principle that:

... by the laws of this land all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place, where the gates are shut and barred, and guarded with armed men ...[6]

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The Role of the Media

Well prior to my appointment I publicly observed that "simply leaving the door of the courtroom open is insufficient, of itself, to provide meaningful public access to the proceedings in that Court".[7] One academic has described this as a concession habitually made by the courts.[8] So, as I have again previously written, "It is therefore trite to observe that if the Courts are serious about providing meaningful public access to their proceedings, the media must be the means through which that access is provided".[9]

That rather obvious proposition has been more eloquently put by Justice Park in the United Kingdom, when he recently observed:

It is an excellent thing that any member of the public can walk into any courtroom, watch the proceedings and listen to what is said. But for the public as a whole to be informed about important or interesting matters which are going on in the courts the press is crucial. It is through the press identifying the newsworthy cases, keeping itself well informed about them and distilling them into stories or articles in the newspapers that the generality of the public secure the effects and, I trust, the benefits of open justice.[10]

It is therefore vital for the courts to recognise and appreciate that the media are precisely what the word connotes - namely, the medium by which the principle of open justice is communicated to the community which we serve. And the pool of media organisations which can provide information to the public about courts is significant - the information available to me suggests that there are now about 90 television stations, 130 ethnic newspapers, 300 radio stations, 700 newspapers and 1300 magazines in Australia. If open justice is to have the benefits to which I have referred, a healthy and co operative relationship between the courts and the media is vital.

We must work co operatively together to ensure that the community is given the greatest access possible to our justice system, consistent with the legitimate needs and interests of each of the courts and the media. In the case of the courts, those legitimate needs and interests focus upon the need to ensure that justice is done. It follows that the only proper limitations upon full and unconstrained media access to the justice system are those necessitated by the need to ensure a just process, so that the only justifiable restrictions are those deriving from an adverse impact upon justice.

The legitimate needs and interests of the media include considerations like news worthiness and presentability. They merit a little more attention. They are often misunderstood by Judges. But not by Chief Justice Gleeson, who recently observed:

The nature of news affects what is published about courts. The things that sustain confidence in an institution are not likely to be newsworthy. Things that shake confidence are more likely to be newsworthy. Inevitably, therefore, the public hear more about the latter than the former. But people understand that. There is nothing new about this. All people in public life, and all institutions, have to cope with it. Bad behaviour attracts attention. Commitment to the service of the public does not. Consumers of information have an appetite for bad news; naturally, commercial providers of information bear that in mind. If a bridge collapses, that is news. Why would anyone publish a story about a bridge that remains standing? If a victim of crime says that a sentence is outrageously lenient, that is newsworthy. If a victim says that a sentence is fair and reasonable, that is not newsworthy. Naturally, the public will hear more from people who criticise the system than from people who think it is working well. To complain about that is like complaining about the weather.[11]

It follows that as Judges we must not be unduly thin skinned or sensitive about media treatment of our decisions. We must accept, as part of the co operative relationship to which I have referred, that the overwhelming bulk of the opinion expressed about our judgments will be critical. However, we are also entitled to expect that the media will neutrally present the facts upon which the opinion is based, in order that the audience may form their own view as to whether the opinion is justified or not.

And it is a serious mistake for Judges to think that media criticism of the judiciary is some recent phenomenon, or is more severe now than ever before. To take just two examples relating to the first Chief Justice of Western Australia, Sir Archibald Burt, in 1870 he was described by the Melbourne Argus as "a singular freak of a man dressed in a little brief authority"[12]. About the same time, the Melbourne Age wrote of my predecessor in these terms:

The new theatre of operations, in the effort to silence the press and to crush public journalists, is the heretofore penal colony of Western Australia, and the angry potentate who hurls his thunderbolts against those who dare impugn the doings of official authority, is not the sovereign ruler of the state as represented by the local head of the Executive in the person of the Governor of the colony, but the Chief Justice in the Supreme Court of this despotically governed Little Pedlington. The Chief Justice, in a tone and style of speech the most intensely redolent of the Pecksniff spirit that our experience has ever been cognisant of at once commenced his bitter vengeance by extolling his own conscientiousness.[13]

I digress to observe that it is perhaps disappointing that the press no longer use colourful language of that calibre. But it is significant that the events which triggered this outpouring of vitriol was the imposition of a fine on a local newspaper for contempt of court. This reinforces my general theme that the courts and the media serve the public best when they work together co operatively and one should not try to unduly constrain the other. And the courts must accept that the media can and will say things with which we disagree, and publish things we think should not be published. That is precisely what freedom of the press means. As Lord Justice Hoffman observed:

... a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which 'right thinking people' regard as dangerous or irresponsible.[14]

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Suppression orders

Orders suppressing the publication of proceedings in a court are, of course, a prime example of a circumstance in which the court constrains the capacity of the media to publish. Because of the importance of the open justice principle to which I have referred, such orders should only be made where absolutely necessary to enable justice to be done, and only for such time and to such extent as necessary to enable justice to be done. However, in its recent report, the Press Council has observed that "The impression that most observers have is that suppression orders are being issued by the courts with increasing frequency in many jurisdictions"[15]. Prior to my appointment, I made the same observation myself.[16]

Turning to more empirical data to justify these impressions, the Press Council observed in its most recent report that in mid 2006 the News Limited database carried 971 active notifications of suppression orders, which was a growth of about 300 over the previous year. However, the Council has also acknowledged greater judicial recognition of the problem, and that the trend may be reversing.[17]

And, of course, nothing attracts the attention of the media to a case like the making of a suppression order. Any previously unremarkable case can be moved into the realm of newsworthiness by the making of such an order. There are avenues available whereby the media can challenge such orders, and experience suggests that appellate courts are more disposed to favour the principle of open justice than trial courts. However, appeal processes can take time, after which newsworthiness has evaporated. It seems to me that if the courts are serious about giving effect to the principle of open justice, steps must be taken to ensure that appeals from suppression orders are brought on for hearing at the earliest possible opportunity. Otherwise, there is very little incentive for the media to pursue such appeals.

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Practical obscurity

"Practical obscurity" is a term increasingly referred to by authors and commentators in this area. In some cases, it has been used to signify the privacy concerns flowing from on-line access to court documents and records and the loss of their previous "practical obscurity". That is an issue to which I will return later in this speech. I am also concerned about the "practical obscurity" identified by authors and commentators increasingly evident in the conduct of court proceedings, impeding the effective operation of the open justice principle. They observe that a representative of the media sitting in a court may be unable to fathom what is actually happening because of increasing reliance upon documentary materials which are not made available to the media. The difficulty has been exacerbated by increasing reliance upon documentary materials in recent procedural developments. The adverse consequences of these procedural developments were noticed as long ago as 1983 by Lord Scarman in the House of Lords, who observed:

Reasonable expedition is, of course, a duty of the Judge. But he is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] A.C. 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p.477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading of the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.[18]

More recently, the New Zealand Law Commission observed:

There is an increasing trend in both civil and criminal cases for material to be placed before the court in written form, and for much of it not to be read out, despite the fact it is taken into account by the court in making its decision. Examples include expert witness statements, depositions and submissions. At a trial, documentary evidence will not normally be read out in full to the judge, though there may be references made to it during argument or in cross-examination. This trend creates serious practical problems for the media: material that would previously have been read aloud in open court is now not available to them, and trying to gain access to material through the court record rules during the hearing results in delays and can be costly, and the application may ultimately be unsuccessful.[19]

Other commentators have made the same observation:

Today, there is far less reliance on what takes place orally in open court, and a correspondingly greater emphasis on documentary evidence and written submissions and arguments.[20]

Justice Byrne of the Supreme Court of Victoria has observed:

This serves to make the curial and adjudicative process less and less comprehensible to the person in the public gallery.[21]

Swannie comments:

In order to make sense of proceedings, the media often requires access to documents filed with the court in the course of a proceedings.[22]

The perspective of the media on this issue has been eloquently expressed by a member of the Press Council, Chris McLeod, who has written:

How can a journalist sitting in court understand proceedings being conducted by way of written evidence and written submissions if the journalist does not have access to those documents?

If the journalist sitting in court cannot understand the proceedings, the journalist cannot fairly and accurately report the proceedings to the public. ... [23]

The press, like the judges, is trying to deal with complex legal matters. Unlike judges though, the press doesn't always get access to all the material presented to a court. Add to that suppression orders and various statutory prohibitions ... and a reporter can end up with a Swiss cheese story - full of holes.[24]

I had the opportunity to observe first-hand the beneficial impact which enhanced access to documentary materials had upon the fairness and accuracy of reporting during the course of the Royal Commission into the Collapse of the HIH Group of Companies. The Royal Commissioner, Justice Neville Owen, accepted that a fundamental purpose of the Royal Commission was to provide information to the public as to the circumstances surrounding the collapse. He therefore put in place arrangements which provided the media with access to real time transcript while evidence was being given (and corrected transcript was placed on the Commission's website not later than 6 pm that day), access to screens which displayed the documents about which witnesses were being questioned and an audio feed of the evidence given on request. The extent, and the accuracy of the reporting of the events in that Commission was of the highest calibre.

If we are serious about the principle of open justice, for my part I believe that general approach to media access should be adopted by the courts wherever possible. Often the technology will not be available to provide access with the efficiency available to a Royal Commission, but the basic principle of open access to all documents used in court should, in my view, be accepted as a necessary and fundamental aspect of the principle of open justice.

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