The Courts and Media

Jack Herman reports on the third plenary session: the reporting of the courts.

Justice Susan Kiefel of the Federal Court started by talking about the issue of television coverage of proceedings, a vexed question in Australia, where proceedings are seldom broadcast. "[It] is still about, but it does not seem to have been pursued much by the media in recent times. The courts discuss it from time to time." She thought that the OJ Simpson trial might have destroyed the prospect but also that most Australian cases don't have the level of interest needed for whole of trial coverage.

A major difference in our proceedings is the control that Australian Courts exercise over the proceedings and the lawyers. "Even a judgment in a very controversial case, such as the maritime dispute, hardly makes for a riveting broadcast." She noted that, in fact, the judge read great slabs of the Act and then commented on them.

She added, "Views will also differ about whether [television coverage] is likely to influence the conduct of judges, lawyers and witnesses. I remain concerned about that."

What then is the present relationship between the media and the courts?

The judge referred to Professor Kaiser of Dalhousie University who, in June 1995, suggested that judges' perceptions of the media would include the following descriptions :

"... superficial, biased, inadequate, sensational, inaccurate, unfair, misleading, irresponsible, damaging to the public interest ..."

The intensity reflects judicial belief that the public is, according to Prof Kaiser, "virtually wholly dependent on the media for information about judicial proceedings and assistance in evaluating their significance." Professor Kaiser however also suggested that this attitude might reflect a certain defensiveness arising from the alienation of the public from the courts.

Justice Kiefel saw the lack of knowledge and understanding of the courts and their procedures as a fundamental problem in our society, with little education on them in the media, or from the courts themselves.

In speaking of the media's perceptions of the courts, she noted that some journalists have legal training and specialise in the reporting of judgments and proceedings. Because of their experience, "the stereotypical image of judges and some of their other attributes, forming the general media's perception of judges, will not have the same impact."

Other reporters can have difficulties with where to draw the line in relation to reporting the court proceedings or more particularly forthcoming proceedings, with the threat of contempt proceedings hanging over them. Other difficulties include the complexity of judgments and their delivery at times which conflict with deadlines. And "[t]hey are occasionally on the end of a 'no publication' order."

Justice Kiefel's perception was that journalists were more interested in the outcome while judges were more interested in preserving the integrity of the proceedings.

The stereotypical image of judges in the press was of an Anglo-Saxon or Celtic male judge, from a privileged background. They are viewed as unaccountable "which, given appeal processes, is not true for any judge in Australia except for the seven comprising the High Court". There is also that small group of judges who "would be viewed as somewhat arrogant, elitist, authoritarian and, in the case of some higher courts, intellectual social engineers.

"And I could not omit the regular theme that judges are also out of touch with the average person, whose views of course are those which journalists however are able to expound."

Finally Justice Kiefel noted that journalists have found it strange that courts (and judges) have in the past not wanted publicity. But the appointment of media liaison officers in most courts have overcome this problem to an extent.

Judge Kiefel saw the possibilities of an improved relationship as falling down on the different perceptions of the two institutions. The media were looking for "human drama" while the courts were seeking to have the public better informed about the processes of the courts and about the part that judges play in it.

"For journalists the writing of judgment summaries must become the norm, at least where litigation is of public interest". Simple steps could be taken by the courts: for example having summaries of the judgment and sufficient hard copies available when it is handed down. Given recent controversies on sentencing, where a sentence was about to be handed down in a controversial case, "it might be as well for the Chief Justice of that court or the media officer to prepare a short explanatory note on how sentencing is undertaken; what limitations there are placed upon judges by the statutory mechanisms and that there is an accepted range for most sentences which, if departed from, would simply result in it being overturned on appeal, with the attendant costs."

And, "Overall, the courts and the judiciary would hope that journalists would become better informed, and by such reporting facilitate a wider understanding in the community of legal questions of 'public interest'". Justice Kiefel made some remarks about media commentary on individual judges. She thought that there was too little commentary on judicial appointments and the appropriateness of them. She was concerned with criticism where "the critique of the judgment is irrelevant, as where some personal and derogatory remark is made about the judge in question; or where the attack upon a judge for some inappropriate comment is maintained with a rage usually reserved for war criminals".

She concluded, "The Courts and the media could co-operate more. But beyond that we have different functions. It seems to me that the distance which will necessarily remain between the two is not a bad thing. A democratic government, an independent judiciary and a free press co-exist and, to an extent, need each other, but it would not be desirable for them to develop a close relationship. The Courts decide actions involving the other two; and the press has a function as both reporter, commentator and monitor of judicial decisions and conduct."

Solomon

The second speaker was David Solomon, Contributing Editor of the Brisbane Courier-Mail, who started by referring to a new Australian Institute of Judicial Administration (the AIJA) committee. The AIJA is an influential body of judges, magistrates, legal academics and practising lawyers which carries out research and its new committee, 'Courts and the Public', has 10 members but "not even one token member of the public, nor is there anyone from the media".

He noted that an earlier AIJA study on Courts and the Public spoke to but one working journalist (of 97 people consulted) and of the 16 recommendations it makes, only one concerns the media. "It proposed that media liaison officers be appointed in all jurisdictions and be appropriately resourced". It also encouraged courts issuing summaries of judgments through media liaison officers. Mr Solomon noted that similar suggestions had been around for some time and that many jurisdictions had appointed media officers.

He stressed the relatively unprotected legal and political position of the media. "The major problem for the media in Australia is that we have no equivalent to the first amendment guarantee of freedom of speech and the press in the United States Constitution. Until recently there was no constraint on the defamation laws which the states might pass."

He noted that as a result there were a multiplicity of laws: "in some places truth alone is a defence to an action in defamation, in others it is truth and public benefit. There are variations among the states and territories as to a defence of fair comment, and also concerning the reach of a claim of qualified privilege."

He noted that the Standing Committee of Attorneys-General has said of the last 20 years that there should be a uniform defamation law but had done nothing to achieve it. Perhaps, he suggested, "It hasn't been seen by politicians to be in their interest to change the laws. They are among the significant beneficiaries of the defamation laws as they currently stand." And, apart from the direct income earned by some, many politicians have benefited from defamation laws because the media has sometimes held off on printing information they have for fear of defamation action.

Mr Solomon then turned to contempt laws. "The courts themselves determine whether there have been breaches of the law" and "the courts are not terribly sympathetic to the media and their problems".

He noted that, in the 1990s, judges had been subject to far harsher criticism in the media than previously. These criticisms largely arose from infelicitous remarks by judges. But there was also a contemporary trend for increasingly harsh attacks on the courts by politicians, especially following a series of High Court decisions, particularly those on Native Title. Because of the attacks by politicians, the traditional defenders of the courts, the Attorneys-General cannot be relied on to defend judges now.

Looking at the problems faced by the media in courts, Mr Solomon noted a number of restrictions on media reporting imposed in the interests of a fair trial. "First, reporting of a crime is greatly restricted once a person has been charged." Large fines have been levied when the media has done more than report the name of the accused and the bare facts of the crime. This can include the publication of the accused's image.

"Second, there can be no reporting of the fact that a person charged has a criminal record." This can get to the ridiculous position where reference to the accused as a 'prison escapee' can lead to a contempt conviction ... and has.

"A third restriction on reporting concerns what might be described as particular attributes of the criminal." For example, there are statutory restrictions which prevent the naming of those in children's courts, or identifying the victims of sexual abuse. There are also restrictions on reporting the Family Court. These restrictions can be made worse by suppression orders which courts can issue in particular cases and which can further hamper reporting of important matters.

"The final area of conflict between the courts and the media which I should mention concerns the position of journalists required by a court to disclose their sources." Mr Solomon noted the absence of legislative backing for the ethical requirement that journalists not reveal confidential sources and noted several case where colleagues had been fined or jailed for refusing to name names.

After briefly discussing the question of the possible televising of courts, Mr Solomon turned to a cutting he had from some years ago when a State Attorney-General asserted that "a small group of criminal lawyers had deliberately encouraged media coverage of their clients' cases in an attempt to have trials aborted. He said the aim was to create an atmosphere where the prospect of a fair trial could be declared to have been prejudiced."

Mr Solomon was sure that some lawyers behaved this way and noted that the police try to do the same, to enhance prosecutions. "The police are quite adept at arranging for television crews to be present when arrests are made, or prisoners bundled in or out of vehicles on the way to be questioned or charged."

Mr Solomon was concerned with this misuse of the media, not just in criminal matters but in civil cases where "governments and large public companies, may be forced - have in fact been forced - to settle cases because they have lost a public relations battle."

Having looked at the different attitudes of the courts and the media, he summarised the media's duty: "it is to report what happens in the courts, and to provide intelligent and critical analysis of the courts."

Lee

The third speaker, Prof Hoong Phun Lee, replacing Dato Param Cumaraswamy, who was unable to attend at the last moment, spoke of matters related to the topic in both Australia and Malaysia. His speech was not available at the time of publication.

Jack Herman

see also
Index on courts and contempt material

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