A Clash of Cultures

At the Press Council's 2005 Annual Address, Justice Ron Sackville's responded to Richard Ackland's discussion of the strained relations between the judiciary and the press, that was reported in the May 2005 issue. JACK R HERMAN looks at the judge's remarks. JACK R HERMAN looks at the judge's remarks.

Justice Ron Sackville of the Federal Court, Chair of the Judicial Conference, started by stating his appreciation of the opportunity to "contribute, however marginally, to the ancient and civilised discourse between judges and representatives of the media".

He noted, without endorsing them, the words of Thomas Jefferson, seeing them as synthesising "two different but not necessarily incompatible ways of looking at the media":

the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and mendacious spirit of those who write them. ... These ordures are rapidly depraving the public taste.

It is however an evil for which there is no remedy, our liberty depends on the freedom of the press, and that cannot be limited without being lost.

He saw the interests of the courts and the media coincide: both perform functions essential to the maintenance of a free and democratic society and the presentation of the rule of law. "By reporting court proceedings and decisions, the media can promote public understanding of the legal system and the values it upholds, as well as disseminating information about important developments in the law". To Justice Sackville, the scrutiny of a free press fosters high standards of judicial conduct and performance and encourages informed community debate about the policy issues that must be confronted by the courts.

But he still saw a clash of cultures between the courts and the media. Because sections of the media sought ratings or readership, the rigorous pursuit of the truth was not always the aim, being replaced by sensational and often deliberately misleading headlines, attracting a reader's attention, but misrepresenting the substance of a story. By contrast, he argued, the courts necessarily emphasise impartiality in adjudication, rationality of argument and stringent procedural safeguards designed to ensure that the fact-finding process is fair. "[J]udgments which protect the civil liberties of unpopular people, such as those accused of criminal conduct or those who have been Ôdisgraced' in the eyes of public commentators, are often distinctly uncongenial to the mass media. Restrictions on the reporting of matters that might affect a fair trial are particularly resented by the media and often erroneously portrayed as judges protecting their Ôpatch'."

The judge argued that from his perspective the Ôpowers and privileges' of courts exist for the benefit of the broader community. He saw the vehemence of some media attacks on the judiciary or on individual judges or magistrates as arising from the fact that the judiciary, through it independence and tenure, is largely impervious to media campaigns. "The independence of the judiciary means, among other things, the strength and courage to resist the shrill demands of self-appointed arbiters of public opinion."

Justice Sackville said that the media and the courts work in quite different ways. "The courts proceed deliberately and carefully. ... The media ... operate under tight deadlines and constraints that are usually foreign to the courts. ... Judges often believe that an accurate account of detailed evidence or complex litigation is not possible in a two-minute television segment or a short newspaper article."

Additionally, he pointed out, judges are subject to significant restrictions on their ability to engage in public debate. Some judges are now less reticent than once was the case to comment on matters of public interest but they still draw the line at commenting on particular cases they have decided. Their judgments have to speak for themselves. Despite the presence of media liaison officers, courts and judges are not in a position to engage in the forms of media manipulation that are the stock-in-trade of other groups in society. "In any event, with certain obvious exceptions, judges are usually neither trained nor temperamentally suited to participate in the rough and tumble of media controversy."

A judicial prespective

Justice Sackville advanced six propositions to provide guidance as to the approach that should be taken by courts and judicial to media criticism.

1. Media criticism of courts is not new

Although some commentators bemoan the increasing incidence and intensity of attacks upon the judiciary, there is nothing novel about vehement or even vicious criticism of courts and individual judges.

2. ... but its impact can be more severe

In this changed environment, even relatively robust institutions and individuals, if subjected to groundless but plausible attacks, can suffer serious and sometimes lasting harm, including judicial officers, who are subjected, rightly or wrongly, to relentless media scrutiny and ridicule. The judge argued that there is a social cost to media hyperbole directed to the courts: some who would make fine judges or magistrates are not prepared to accept office because of ill-informed and even vicious attacks. Others who are excellent judges or magistrates may leave the bench early.

3. The media are not monolithic

The quality of rep
ng about the courts varies widely in quality. "Some reports and commentaries are of very high calibre, particularly taking into account the time pressures and space limitations under which reporters and commentators operate ... Longer pieces often reflect quite thorough research and provide very fair accounts of competing views."

It is fair to say, Justice Sackville conceded, that much media reporting falls into the category of honest and diligent attempts to summarise accurately the outcome of a case, the substance of evidence given at a trial or the reasons for a decision. This category includes fair criticism of decisions or court practices. But he saw a second significant category of reports that are deliberately provocative or sensational. "Reports of sentencing of offenders are peculiarly suited to this approach. The reporter can focus on the apparently universal bitter disappointment of the victim or [victim's] family at the manifest leniency of the sentence, frequently to the exclusion of any material ... that might explain why the offender received the particular sentence." There was also the particular problem of misleading headlines that can create an altogether false impression on otherwise accurate reports.

The third class of reports he referred to were the gratuitously vicious, either through exaggeration or the imputation to all members of a group the failings of one or two. "I think that only a relatively small segment of reports or commentary can be so described," said Justice Sackville. "They may, however, be disproportionately influential, given the derivative nature of much media commentary."

4. ... nor is the judiciary monolithic on contempt

The diversity of judicial responses to court reports is particularly evident in relation to the form of contempt known as Ôscandalising the court', a contempt rarely invoked these days. Justice Sackville spoke at some length on this (and his detailed remarks can be found in the full version of the speech on the Council's website.) He noted that the Australian Law Reform Commission had argued in 1987 that retention of contempt for scandalising the court in its established form could not be justified because it intruded too far into freedom of expression. The commission recommended a much narrower offense related to imputing misconduct to a judicial officer. Justice Sackville thought the Commission's reasoning compelling and that its recommendations should be implemented.

5. ... or on defamation

"There are different opinions within the judiciary as to the application of the laws of defamation to media attacks on members of the judiciary," said the judge, referring both to the Lange case that established a constitutional defence for comments related to government and political matters and the Popovic case, in which a majority of the Victorian Court of Appeal held that the implied freedom of communication does not apply to criticism of a judicial officer. "The contention that judicial officers should be in no different position to elected officials in this respect has a good deal to commend it as a matter of principle, but is not a necessary consequence of the implied constitutional freedom of political communication that has been developed by the High Court."

6. Even so, there should be some limits

Justice Sackville asserted that "It is no secret that The Australian ... [has] recently targeted the judiciary for what they see as a range of assorted sins." He added that, "Judicial officers can have no legitimate complaint about accurate reporting or honest and fair criticism of judgments, or even of non-private behaviour that bears directly on a judicial officer's fitness to hold office. The courts have always stressed the importance of a free press and they have meant what they have said." For him, the difficulty is when media reports or commentary go far beyond what can be regarded as either accurate or fair.

"While many in the media ... support a situation in which the press is subject to no external constraints, other than perhaps a voluntary self-regulating mechanism, such a position cannot be justified in principle or in practice. The power of the press to destroy the reputation of individuals is so great that it is difficult to accept that there should be no remedy for egregious mistakes which are the product of dishonesty or recklessness. Whether legal remedies should effectively be confined to awards of damages is another question altogether. But Ôfreedom of the press', like all slogans, cannot be treated as an absolute."

The judiciary's response

Finally, Justice Sackville gave his own views on what should be the response of the judiciary's representative organisations to the current climate of "often unfair criticisms"

He suggested that those accepting judicial office must understand that the possibility of critical media attention, justified or unjustified, goes with the job; that more frequent resort to the law of scandalising contempt is not a viable option ("whether a judicial officer aggrieved by false accusations in the media should institute defamation proceedings is a matter for that judge or magistrate"; that the courts themselves need to do more to communicate effectively with the media (this might include further television and radio broadcasts of court proceedings.); that judicial officers need to understand better the ways of the media; and that the courts and the organisations representing the judiciary should be more willing to respond to media attacks, in particular to correct ill-informed criticisms or provide balance in the face of media excesses.

Conclusion

In conclusion, Justice Sackville said, "The Australian judiciary plays an indispensable role in preserving freedom and the rule of law. In general, that role is well recognised by governments and among the wider community. Media criticism is essential as a means of encouraging improvements in the administration of justice for which the courts and judicial officers strive. Tolerance of (but not silence in the face of) media excesses is the price that has to be paid to safeguard the right to make legitimate criticisms of our public institutions. The judicial system is robust enough to survive media excesses and to continue to ensure that we enjoy the benefits of living under the rule of law."

[The complete speech is available on the Press Council's website. A report of Richard Ackland's Annual Address was carried in the May 2005 APC News.]

JACK R HERMAN

see also
The full version of Justice Sackville's speech
Richard Ackland's 2005 Annual Address
Website index of courts and contempt material.

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