Access to Justice

WA Chief Justice Wayne Martin addressed a Press Council Public meeting in Perth on the subject, Access to Justice - The Media, the Courts and the Public Record. JACK R HERMAN reports.

In a public address before a packed house in Perth on 22 March WA Chief Justice Wayne Martin sought to emphasise that improvement of access to justice was a key priority for his court and that the media have a critical role to play in improving public access to, and comprehension of, the justice system. He thought that this role could be enhanced by developing a positive and co-operative working relationship between the courts and the media.

For this to happen, the courts must accept and reinforce that the public gather information about the workings of the courts through the print and broadcast media.

Public Interest in the Courts

Chief Justice Martin argued that unfettered public access to proceedings in our courts, the principle of open justice, is a fundamental aspect of the conduct of our courts, inherited from Great Britain and shared with comparable justice systems.

He saw three aspects of the public interest in the courts served by the principle of open justice:

Accountability. The judicial system and the courts exist to serve the public and the community. There is a community interest in the rule of law, including the enforcement of law and order, and the peaceful resolution of disputes between members of the community and each other, and the State. The public needs to know whether the courts achieve these objectives, and whether they do so fairly and efficiently. So open justice provides a mechanism by which the courts can be held accountable to the community that they serve.

Public confidence. Chief Justice Martin quoted Justice Felix Frankfurter that a court's authority "ultimately rests on sustained public confidence in its moral sanction." He suggested that public confidence depended on transparency. No reasonable people could be expected to have confidence in a system that they cannot see in operation. "The public is 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," he said. Chief Justice Martin contrasted the predecessor to the Corruption and Crime Commission, which was required to operate behind closed doors with its replacement by a body that has generally operated in full public glare, enhancing public confidence in its operations. He also noted comments from the Family Court on the adverse effect that the prohibition upon the identification of parties to its proceedings has had upon the public awareness of the procedures and principles in that Court.

Preservation of the independence of the judiciary. Chief Justice Martin drew attention to NSW Chief Justice James Spigelman's recent quoting of another significant observation of Justice 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.

Chief Justice Martin noted that on a few instances when the independence of the judiciary has been threatened, it has been the media that has come to its aid, galvanising public opinion so as to prevent undue government interference with an 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".

Justice must not only be done ...

The Chief Justice preferred a "more evocative" statement of this principle from Lieutenant-Colonel John Lilburne at his trial for high treason in 1649:

... 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 ...

He noted his previous observations that "Simply leaving the door of the courtroom open is insufficient, of itself, to provide meaningful public access to the proceedings in that Court" and "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".

As a result he saw it 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". With about 90 television stations, 130 ethnic newspapers, 300 radio stations, 700 newspapers and 1300 magazines in Australia, there was quite a pool of possible conduits. Chief Justice Martin argued that a healthy and co-operative relationship between the courts and the media is vital if this role is to be carried out.

"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."

For Justice Martin, the legitimate needs and interests of the media include considerations like news worthiness and presentability, which he sees as often misunderstood by Judges. As a result Judges must not be unduly thin-skinned or sensitive about media treatment of decisions. Judges have to accept that the overwhelming bulk of the opinion expressed about our judgments will be critical. On the other hand, the media need "neutrally to 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".

He does not see media criticism of the judiciary as a recent phenomenon, or is more severe now. He cited examples from the 1870s to make his point; one describing a WA Judge as "a singular freak of a man dressed in a little brief authority". Another referred to a previous WA Chief Justice:

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.

In fact the current Chief Justice regretted that the press no longer uses colourful language of that calibre. He noted the event triggering this vitriol was the levying of a fine on a newspaper for contempt of court.

The freedom to say things with which we disagree, and publish things we think should not be published, is what freedom of the press means.

Suppression orders

The Chief Justice saw suppression orders as a prime example of a court's constraint on the media's capacity to publish. He asserted that such orders should only be made where absolutely necessary to enable justice to be done. He noted a recent Press Council statement, "The impression that most observers have is that suppression orders are being issued by the courts with increasing frequency in many jurisdictions". The Council used data from the News Limited database, which carried 971 active notifications of suppression orders, which was a growth of about 300 over the previous year. He also reported the Council's acknowledgment of greater judicial recognition of the problem.

"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," said Chief Justice Martin. He noted avenues available to challenge such orders, and the generally favourable attitude of appellate courts but "appeal processes can take time". Appeals must be heard as quickly as possible, he argued.

Practical obscurity

Chief Justice Martin referred to the term, "practical obscurity", which has been used in some cases to signify the privacy concerns arising from on-line access to court documents and records. Other commentators use the term in reference to developments impeding the effective operation of open justice. While the media may be in a court they are increasingly reliant on documentary materials, which are not made available to them. This becomes a real concern for open justice as Lord Scarman observed in 1983:

... 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.

There is far less reliance today on what takes place orally in open court, and a correspondingly greater emphasis on documentary evidence and written submissions and arguments. The Chief Justice quoted Chris McLeod, a member of the Press Council:

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.

Chief Justice Martin referred to his experience at the HIH Royal Commission. Justice Owen provided the media with access to real-time transcripts while evidence was being given and access to screens that displayed the documents about which witnesses were being questioned. As a result, "the accuracy of the reporting of that Commission was of the highest calibre". He supported an approach of open access to the documents for the media whenever practical.

Access to Court Documents

However, he reminded the audience that access to documents remains a principle and not a right. "Accordingly, guidelines and standards for the provision of access to court documents are necessary to ensure that the media do have access to the information that is required to enable their role ... to be adequately performed".

He referred to reviews of the guidelines on access to court documents in other jurisdictions and an informal review of those guidelines in Western Australia. The outcome of those reviews has generally been an acknowledgement of the desirability of providing general access unless there are compelling reasons to deny access. In his view the only legitimate constraint on the principle of open justice is the attainment of a just outcome. Another reason adduced for non-disclosure is the case when access would unreasonably affect the welfare of a person involved in court proceedings, recognising the need to protect private and personal information. He said he agreed with the NSW Law Reform Commission when it said:

To enable the public to exercise their right to scrutinise and criticise courts and court proceedings, and to make fair and accurate reports of what occurs in the courtroom, it is arguably a logical extension to allow public access to, and reporting on, court documents.

The Professional Obligations of Legal Practitioners

Chief Justice Martin said that he'd held a number of the views he'd expressed from well before his current appointment. Similarly he'd previously sought to constrain the circumstances in which barristers could speak to the media about cases in which they were engaged. This was not inconsistent with his views on open courts. Improved public access to court proceedings is all about providing the community with accurate and impartial information but a lawyer involved is paid to promote the partisan views of only one side. Further there was a tension between the benefits to be derived from acting as PR person for a client and the obligations to the Court (and a client) including confidentiality and furthering their client's best interests. In the CJ's view it would be better for commentary on cases, if required, to be provided by a disinterested lawyer rather than one directly involved.

Internet Access

While provision of information via the Internet tempted the Chief Justice, he thought it might need further consideration before going too far. He was concerned with the permanence of material placed on the Internet and with the ease with which it could be retrieved. The Web was therefore susceptible to misuse and abuse. "There are very real dangers of misuse of personal and private information ...," he said. "The speed with which the Internet has been taken up has meant that we are still discovering some of the unexpected consequences of its use, and I think we need to be a little cautious."

Broadcast of Court Proceedings

Chief Justice Martin remarked on the ratings programs dealing with the customs service, the police (The Force) and the courts (The Code), and the fact that they gave the public an unprecedented insight into how law enforcement agencies actually work. He also noted that the WA Supreme Court was the first in Australia to allow the documentary filming of a criminal jury trial. In talking of public broadcasting of courts he referred to a book by UWA's Dr Daniel Stepniak, who reviews the steps that have been taken in comparable jurisdictions on broadcasting court proceedings. He also mentioned three concerns enumerated by Justice Robert French: the possibility of distraction because of the hardware; the subtle, and not so subtle, effects of electronic media coverage upon participants; and the cultural abhorrence of tabloid television journalism whose distortions may be exacerbated by the availability of visuals and sound recordings.

Dr Stepniak notes that an increasing number of courts around the world permit proceedings to be recorded and broadcast. New Zealand has done so routinely since 2000. In Australia Judges have "facilitated television coverage of proceedings, albeit restricted in scope and confined to selected cases". The televising of courts has ceased to be newsworthy, per se. The Chief Justice also noted Dr Stepniak's caveat that the media's interests in recording and broadcasting court proceedings don't coincide with the interests of the administration of justice and the right to a fair trial.

The CJ's conclusion was that the courts must be more proactive in the use of the technology that will enable audio-visuals to be recorded without interference to the process. The problem of intrusion by bulky cameras can be eliminated by the use of voice-activated ceiling-mounted cameras. Modern technology makes it possible for the court to become its own publisher of proceedings either on the Internet, or through public-access TV, or by other means.

The advantage of webcasting is that the images can be made available on an almost live basis, deferred only as long as the Court itself needs to decide what material should not be webcast. Webcasts would occur when there is a clear public interest in the case, so people see for themselves the court in action. The disadvantages include the possibility of subsequent misuse of the material and the difficulty of providing explanatory material with the webcast. Deferred reality-style webcasts can be accompanied by explanatory material via voiceover or text.

Despite the accumulated experience, said Chief Justice Martin, "it remains appropriate to proceed with some caution. We must be confident that the processes protect those vital interests."

He indicated a keenness to pursue these possibilities in the WA Supreme Court. He is looking at ways the Court can evaluate for itself the various options on broadcasting and webcasting.

Chief Justice Martin concluded that, in his view, important public interests are served by increasing meaningful public access to the courts and their processes. It is very much in the interests of the courts to use the technology now available to bring a real court-room experience to a breadth of audience that earlier Judges could not have imagined.

JACK R HERMAN

[Editor's note: A full transcript of the Chief Justice's speech has been posted to the Council's website.]

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