The Courts and the Media - a conference report

On 27 July, the Press Council co-sponsored with Melbourne University's Centre for Media and Communications Law a one-day conference, The Courts and the Media. The conference featured three sessions: suppression orders; journalists' sources; and freedom of information (FoI). In addition to students and academics, there was a good representation of local solicitors and barristers, of working journalists, and of court officials at the conference.

The conference was opened by CMCL Director Andrew Kenyon and Council Chairman Professor Ken McKinnon and introduced by a keynote speech from Victorian judge, Philip Cummins.

Importance of open justice

The overarching theme of the conference was the importance placed by all democratic societies on the notion of open courts. In his opening address, Justice Cummins invoked the wisdom of Jeremy Bentham: 'Publicity is the very soul of justice'.

The glare of publicity promotes the rule of law. In the Australian Communist Party Case (1951) Dixon J described the Constitution as an instrument framed in accordance with many traditional conceptions and said: 'Among these I think that it, may fairly be said that the rule of law forms an assumption.' The three topics discussed were viewed as highly pertinent to the maintenance of the rule of law in Australia.

The legal constraints giving rise to impediments to the free flow of information reflect the absence of a coherent judicial philosophy regarding the fundamental value of public discourse in a democratic polity such as Australia. Michael McKinnon (Seven Network) in his paper on 'Freedom of Information and the Courts' referred to the following observations of McHugh J in Australian Capital Television Pty Ltd v Commonwealth (1992):

If the institutions of representative and responsible government are to operate effectively and as the Constitution intended, the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability at the ballot box. The electors must be able to ascertain and examine the performance of their elected representatives and the capabilities and policies of all candidates for election. Before they can cast an effective vote at election time, they must have access to the information, ideas and arguments which are necessary to make an informed judgment as to how they have been governed and as to what policies are in the interests of themselves, their communities and the nation.

The public's right to know, as pointed out by Michael McKinnon, is reinforced by Mason J in Commonwealth v John Fairfax & Sons Ltd (1980) who said:

It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss review and criticise government action.

This, like many other issues raised at the conference, highlighted a conspicuous absence of an express guarantee of free speech.

Suppression

A cultural shift by judges towards the issuing of suppression orders as a 'first resort' may be deterred by the bright light of an express guarantee of free speech. Associate Professor Andrew Kenyon in his paper 'Not Seeing Justice Done: Suppression Orders in Australian Law and Practice' recognised that in certain circumstances 'orders can be made preventing media publication about one or more aspects of legal proceedings'. He pointed out that at common law the courts' power to suppress media publication is limited. After reviewing various State statutory provisions for suppression orders, he concluded that the law on suppression orders varies markedly across Australian jurisdictions. He proffered the view that a statutorily based power for non publication orders 'should provide the media explicitly with standing in relation to the making and reviewing of orders'. Reform in this area is clearly needed. Commenting on his paper, Prue Innes, the former media information officer of the Supreme Court of Victoria, pointed out that there were many suppression orders now being issued and that many were badly worded.

In looking at a way forward in this area, there was a general agreement that courts need to be more efficient in ensuring that suppression orders are made known to the media and that a uniform notification system for orders (and for their alteration or revocation) should be the first step in reducing the number of orders. In the interests of open justice, the number of suppression orders should be minimised and, in this regard, the conference noted legislative attempts by South Australian Attorney-General Michael Atkinson to reduce the number of such orders in his state and the forthright statements of some chief justices, particularly those in Western Australia and New South Wales, in favour of a more rigourous regime dealing with attempts to suppress matters.

Journalists' sources

Melbourne solicitor Justin Quill (Corrs Chambers Westgarth) pointed out that the law in Australia is not very favourable to the protection of journalists' confidential sources. He argued that a reversal of the onus of proof would improve the protection: it should be necessary, he said, for the prosecution to demonstrate an absolute need for the information before courts sought the revelation by journalists of the sources for their stories. Referring to the charging of a public servant, Desmond Kelly, and the conviction of Michael Harvey and Gerard McManus, Chris McLeod (Herald and Weekly Times) encapsulated the problem in a pithy statement: 'Governments see public servants as not serving the public but serving the government'. Gail Hambly (Fairfax Media) underlined the need for whistleblower protection legislation to complement laws protecting journalists' sources.

The conference discussion indicated that there was a widespread belief that none of the current Australian shield laws provided sufficient protection. Visiting US academic, Professor Brian Murchison, noted developments in his home country towards shield laws that defaulted in favour of protection of sources, where the onus was on those seeking the information to show a good reason why the journalists needed to reveal their source. He, and other commentators, also referred to recent amendments to the New Zealand Evidence Act that, unlike its Australian equivalents, now made it necessary for good reasons to be given before courts could seek a revelation of sources. The conference did not believe that the recent amendments passed through the federal parliament would provide much in the way of a protection.

Freedom of Information

In the session on 'Freedom of Information and the Courts', the discussion by Michael McKinnon and Associate Professor Moira Paterson (Monash University) showed the ill health of public accountability in the Australian polity. The decision of the High Court in McKinnon (2006) reflects a Court that has shifted from the jurisprudence of the Mason Court era. It would appear that conclusive certificates (banning the release of information on 'public interest' grounds) can be issued by Ministers without much constraint on what is reasonable in the circumstances. Again international comparisons were made, usually unfavourable to the Australian situation. Information on bracket creep, for example, was released in New Zealand without demur under its FoI procedures. In the US, the Free Flow of Information Act has been passed in many states and is before the national Congress. These laws make revelation, nor concealment, the default position. The Australian courts, through recent decisions on the exercise of ministerial discretion, have made it more difficult to get information on matters of public concern. In the view of Michael McKinnon, there may be a way forward through legislative change but the pressing of further cases through the courts to seek a change in the interpretation of what is reasonable in the exercise of the ministerial discretion might be a better way.

Conclusion

The conference was ably summarised by Professor HP Lee, the Council's Vice Chairman, who drew together many of the threads from the keynote address and the three sessions, and sought to find ways forward. He came back to where Justice Cummins started, the over-riding importance to a liberal democracy of justice being conducted in free and open courts, and the availability to citizens of information on matters that may impact on their decisions at elections.

PROFESSOR H P LEE and JACK R HERMAN

For more information on the courts and contempt, go to
Courts material on the website

for more information on protection of sources, go to
Shield law material on the website