The Judiciary and the Press

Richard Ackland's 2005 Australian Press Council Address and Justice Ron Sackville's response discussed the strained relations between the judiciary and the press. JACK R HERMAN reports on Ackland's Address. Sackville's response will be reported on next issue.

Richard Ackland, a journalist specialising in reporting the law, delivered the 2005 Australian Press Council Address, Much Ado About Nothing - the True State of the Judicature, on 31 March at a lunch in Sydney's Swissotel. Justice Ron Sackville of the Federal Court gave a response to the Address. The Address is an annual event, with the Council inviting a prominent speaker to present a talk related to the freedom and the responsibility of the press. Previous Addresses have been delivered by NSW Chief Justice Jim Spigelman and News Limited CEO John Hartigan.

Ackland noted that, after reading a whole series of recently presented talks, interviews and speeches from judges, he'd come to the conclusion that the judiciary is as prone as any other interest group to "overstating its case, over-egging its pudding and claiming immunities, privileges and perquisites that are beyond its due.

"Contrary to popular belief, the media does not pose a threat to judicial independence by criticising these ambit claims.

"In case it might be thought infra dig for a journalist to be lecturing about judges I should preface these remarks by saying that all the usual human shortcomings such as drunkenness, drowsiness, depression, tardiness, rudeness are things that are quite acceptable in journalists, maybe even compulsory, but are out of bounds for judges."

He referred to a number of recent cases of judges speaking out off the bench. He suggested that "the golden thread" running through the remarks was "the independence of the judiciary, its sacredness, its importance to the proper functioning of democracy and how it is under threat like never before." Included in his purview were an interview by the Chief Justice of Victoria Marilyn Warren; a lengthy report of the farewell address by Justice John D. Phillips from the Court of Appeal; a Gold Coast speech from Chief Justice Murray Gleeson (and eight one-on-one interviews he gave); a 7.30 Report interview by Justice Sackville; and speeches by Justice Michael Kirby and the Chief Justice of Queensland, Paul de Jersey.

"Apart from the threats to independence and the need for judges to be remote," said Ackland, "the other main topics were governments not granting pay rises to judges in the face of findings by the Remuneration Tribunal and the evils of appointing acting judges."

According to Ackland, Justice Phillips claimed that the Victorian Supreme Court was "co-equal" in concept with Parliament and the executive; Chief Justice Gleeson said something was going to be done about lawyers speaking out to the media; Justice Sackville argued that the intensity and degree of media attacks on judges is now much greater than used to be the case; and Justice Kirby suggested that adequate resources for the courts and adequate pay for the judges were factors in the doctrine of judicial independence.

Ackland's most immediate response to all of this was to say, 'What on earth are they on about?'

"Part of the problem, I believe, is that judicial notions of independence have become inflated and have now assumed a proportion that is unrealistic and in fact never existed.

"Far from judicial independence being under attack from governments and the media, it has actually now more robust than it has ever been.

"In their shy, remote, supposedly unworldly way, judges have done a brilliant job at seeking to occupy expanded new living space, in the name of independence."

The speech then turned to the particulars of the judges' concerns as expressed in the cited speeches and interviews.

On the appointment of Acting Judges in Victoria, which he saw as having a long history, Ackland argued that "What has happened here is that self-interest has become conflated with constitutional independence."

On judges' pay: "Judges might think they are different, ultimately though they still have to compete for funds with all the other officers and agents of the Crown who provide services to the public. By comparison with other professionals on the public purse judges are far from underpaid."

On the 'revolutionary suggestion' from Justice Phillips that State courts are co-equal with government and parliament. "This is bold grab to extend the concept of independence.

"To talk of State courts being co-equal, and that any threat to that co-equality undermines judicial independence, has to be bunkum."

Richard Ackland then turned to the question of "media attacks" on judges, particularly the suggestion that the greater intensity and degree of such attacks made life less attractive for judges. Among the examples he cited was a series of articles in The Australian before Christmas in which it was claimed the courts with the longest holidays have "the biggest criminal case stockpile". ("In fact", he said, "on a finalisation basis, the supreme court with the shortest holidays, Western Australia, had a far lower rate of finishing criminal cases than the court with among the longest holidays, NSW.")

A number of other articles were also mentioned including The Australian's articles on the Jeff Shaw case; and a couple of cases where successful defamation cases have been mounted: the Popovic case in which a Melbourne magistrate successfully sued the Herald-Sun for defamation arising from a column by Andrew Bolt, and Pat O'Shane's successful suit against The Sydney Morning Herald over a piece by its former right wing columnist Janet Albrechtsen. (The appeal against the verdict of $220,000 damages was reserved in the latter case at the time of the speech.)

Ackland saw "something unsettling about judicial officers claiming the high ground of remoteness while at the same time engaging the newspapers in the courts when they seek a remedy for their hurt feelings."

"There have also been some excellent stories. The Daily Telegraph had the news about Judge Dodd in the District Court falling asleep while sitting on a case. ...

"The paper went on to publish a bold story with pictures of Jeff Shaw, Ian Dodd and Vince Bruce, captioned respectively, 'drunk ... drowsy ... depressed'. ...

"The Australian had the story about the very slow Family Court judge in Tasmania and the 66 judges who were between one and seven years behind lodging tax returns.

"Those were perfectly legitimate stories and for judges to say that they represent attacks on them is to suggest they should never be criticised for drunkenness, slowness or being late with their tax."

And Ackland did not find the judges' responses entirely convincing. He sees the judges as wanting to engage, but they don't want to engage too vigorously for fear of dimming 'the blaze of glory' that Justice Wilmot claimed in 1765 surrounds the courts.

So is the media a danger to the judiciary and its claims of independence and to the delivery of justice itself?

Richard Ackland noted, "Whole rafts of law are designed to constrain media coverage in an attempt to protect the sanctity of the system. The boundaries are constantly being expanded." He cited the latest effort urged upon the NSW government by the court: an extension of the normal protection of the identity of children in criminal proceedings to a prohibition on naming dead children. And judicial concerns that potentially prejudicial material could be discovered by jurors on the Internet.

"What [the judge] came up with was that the Crown in any pending case should 'carry out searches on the Internet and, in the event that prejudicial material is identified, to request any Australian based website to remove it until the trial is completed.'

"This is a pretty serious challenge to the freedom to publish and of course it leaves gapingly open the question of what to do about websites viewable here that are hosted offshore."

Citing 2002 figures Ackland looked at the causes of trials being aborted: 43 per cent were due to the introduction of inadmissible evidence; twenty-one percent arose because of juror knowledge of a particular participant in the trial; eleven percent because of some problems with witnesses; judges misdirections or mistakes accounted for four percent. Prejudicial publicity by the media: one percent.

"It would seem that everyone else is doing more to botch the sanctity of the system than the journalists."

He concluded, "Judges stressing about their status, authority and perquisites is quite needless, as is the belief that the media is the main threat to their privilege.

"The Judicial Commission should be beefed up to engage on these issues. Justice Sackville [and the Judicial Conference] is an effective spokesman. The judges should come out of the cupboard."

JACK R HERMAN

[The complete speech is available on the Press Council's website. A report on Justice Sackville's response will be carried in the August APC News.]

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