Williams , Daryl --- "The Courts and the Media: What Reforms are Needed and Why" [1999] UTSLawRw 4; (1999) 1 University of Technology Sydney Law Review 25

Access to the Courts and its Implications

Roderick Campbell

Legal Reporter,
The Canberra Times

"Access to the courts and its implications." Fortunately, perhaps, those seven words could embrace almost anything. After much floundering about on the PC, I picked out a couple of "anythings" to address today, to wit, the stark realities of the relationship between the third branch of government and the Fourth Estate, and the adequacies, or otherwise, of the relationship between one court in particular, the High Court, and its broader constituency.

When we ponder the relationship between the courts and the media, I don't think we're too fussed about the relationship between the clerk of the Local Court at Dubbo and the reporter from The Daily Liberal. They undoubtedly have a fine working relationship and are probably in the same cricket or netball team. What we are really talking about is the relationship between the superior courts and the metropolitan media. That relationship is, I suggest, strained and often combatant, and will remain that way unless and until both sides are a little more honest about themselves.

What I am about to say might appear at times to relate more to barristers and solicitors than it does to judges and magistrates. There are two things to be said about that. First, all judicial officers were once practising lawyers and, to some extent at least, once a lawyer always a lawyer. Second, a journalist's experiences with the court system often have more to do with his or her relationship with the lawyers who practise there than they do with the judges or the bureaucrats. So, it is not simply a matter of how the court as an institution relates to the media that we need to consider.

It is hard to think of two more opinionated and holier-than-thou professions than the law and journalism. Both camps engage in considerable nonsense about their respective Holy Grails, invoking "the public interest" or "the interests of justice" as they charge into the fray. A lot of it is posturing, of course, but it is also the way many others see both groups. The media claims to do what it does for the benefit of the public, because the public has a right to know, et cetera, et cetera. If only it were true. The legal system claims that it does right by all, without fear or favour, and acts always in the interests of justice, et cetera, et cetera. If only it were true.

Gatherings like this, while all very nice, will be a waste of time unless both sides start owning up to their sins. It will only be then that we can move beyond the name calling and work at developing an effective relationship.

The respective roles of the courts and the media are obviously very different but remain very much interwoven. The courts are there to sort out the legal rights of litigants and to dispense justice. The media are interested in the news. The courts make news and so the media are interested. The courts need the media so the public can be informed about what they are doing and how they are administering justice, otherwise they would be operating in a vacuum.

The media needs the courts because they are a rich source of human drama. Some of them also make the law, and that is rather important. And they provide the referees in some of the best stoushes around.

To a degree, some of the courts might be seen as having an almost symbiotic relationship with the media. Certainly some judicial figures are more media-friendly than others. Some are very astute at using the media when they have a barrow to push, whether it is something as grubby as money or as lofty as judicial independence.

We need to recognize who it is we are dealing with here. It is primarily lawyers and journalists. There are fundamental differences in outlook and thinking that can and do create an enormous gulf, despite the fact that some of the theoretical strengths of both groups are the same. Lawyers and, these days, journalists, are well educated, and we all tend to be inquisitive, questioning, analytical, objective, not prone to jumping to conclusions, and occasionally passionate. In theory, we have a lot in common. I guess that is why some lawyers and some journalists get along extremely well. But that is a rather small "some", I'm afraid.

Only a handful of judges and lawyers seem to have any real knowledge of how the media operates. Of course, when you have months to write a reserved judgment, or 28 days in which to prepare an appeal, a world of daily deadlines, and deadlines which are approaching at the speed of light by the time court adjourns for the day, is probably hard to comprehend. When the High Court hands down six judgments on one day, do the judges consider the fact that a lone journalist will have to read through all six, cogitate some tens of thousands of words, work out which ones are newsworthy, explain it all to the legally-ignorant chief of staff or news editor, and write several hundred, maybe 1,000 or more, succinct and accurate words about it all, and all in a few hours? If such things ever occurred to the judges, they might not do it any more. No, I don't think judges think about things like that. With a few exceptions, I don't think they really consider journalists' needs, otherwise one of them might, by now, have formulated a suppression order that makes sense.

But journalists are little better. Journalism in Australia in the late 1990s is largely focused on the drama, the colour, the trivial and the salacious. It rarely has the patience for the serious and truly important issues...except, of course, for those media outlets represented here today. That is why, in Canberra just over a fortnight ago, there were more than a dozen journalists from all over the eastern seaboard gathered like bees around a honey pot at the Abbott and Costello show, otherwise known as the Peter Costello and Tony Abbott defamation action against Random House and Bob Ellis. Twenty metres away, just three journalists were covering the Michael Cobb travel rorts fraud trial. Next door, three local journalists and one inter-stater were interested in a rather bizarre murder trial. And in the neighbouring Coroner's Court, only a couple were following a very important coronial inquiry into a death in custody. None of these were as "sexy" as Abbott and Costello but they were all far more important.

It must also be remembered that the average court reporter is young and inexperienced, with little if any knowledge of the law and the rules of the game. They have never met a functus officio in their life and would not recognise an obiter dictum if it bit them. Even bread and butter expressions such as "liberty to apply" and "declaratory relief" bamboozle them. When the High Court announced its decision in the Patrick Stevedores case earlier in the year, the words "liberty to apply" had several senior journalists thinking there was another avenue of appeal there for the asking.

I should make a few more observations on the legal half of this equation. Steeped in the adversarial culture, lawyers are by nature and training a combatant breed. In some miraculous way, something akin to St Paul's experience on the road to Damascus, judges are expected to cast off those cultural shackles the moment they don the ermine or the black gown and pole vault the Bar Table to the Bench. The strengths of the legal mind can sometimes be its owner's downfall, at least to the eyes of the outsider. A fetish for detail, for strategies, for pedantry, for determined loyalty to the client's cause. All these are right and proper and essential, in moderation. I know a lawyer's first loyalty and duty is meant to be to the court. I know it because I read it in a High Court judgment on why barristers cannot be sued, but I'm not sure I believe it. Despite the lofty rhetoric, it's as plain as a pikestaff that most lawyers understand that their first duty is to the person or corporation paying their fees. A lawyer friend of mine does not agree. He claims a lawyer's first duty is to oneself.

If I remember correctly, that same High Court judgment spoke of the virtues of a legal profession whose members did not chase every rabbit down every burrow because to do so is not in the best interests of the justice system. With the greatest of respect, that is nonsense.

I have sat through many hundreds of court hearings and read thousands of court judgments over the years, and no one can tell me that lawyers do not regularly file outrageous ambit claims in personal injuries cases, do not construct oppressive sets of interrogatories, do not mount insupportable defences, do not coach their clients, and do not conduct terribly unfair cross-examinations. The judges know perfectly well that this is going on but too rarely do they do much about it. The more astute journalists know it, too.

The big problem lawyers from both sides of the Bench have is that they see the world through a lawyer's eyes, not through the eyes of the mythical man on what is now, I presume, the Bondi Junction train. An ability to painstakingly extract, over many months, several dozen contextual imputations from a newspaper article is undoubtedly highly prized in Macquarie Street, and the training is very useful for when one becomes a judge. However, try explaining it to the guy next to you en route to Bondi Junction. I might add here that precious few journalists have ever travelled with our mythical passenger either. But we may have had a drink with him (or her) somewhere.

The theory, at least, is that lawyers and judges place great emphasis on the gathering and presentation of facts, in a logical, ordered and coherent way. Once appraised by learned counsel of those facts (of which there are at least two definitive versions) and the relevant law (of which there are at least two definitive versions), the learned judge or magistrate will apply the weightiest version of the law to the preferable version of the facts and come to the correct conclusion... until, of course, the Court of Appeal intervenes and decrees the very opposite. But in the meantime, heaven help the journalist who misreports those facts or misunderstands whichever version of the correct legal principle it was that the judge decided was the right one at the time.

Journalists often get it wrong because lawyers and judges do not seem to know how to say in less than 2,500 words what they ought to be able to say in 250 words. Many journalists get it wrong because, like their readers, their attention span does not extend to anything like 2,500 words.

The legal mind tends to be ponderous and long-winded. The journalistic mind is always impatient.

We are supposedly in the age of instant communications where the vast majority of people get their news from television. But television is preoccupied, to the point of obsession, with visual images. Only SBS would consider putting a news item to air without accompanying footage to distract the viewer. Commercial television will not touch a court- or law-related story if it does not have a visual image, matching or otherwise, no matter how important the story. The television journalist invariably has less than two minutes, or 300 words, in which to communicate a lengthy High Court judgment or six hours of courtroom drama. Newspapers aren't much better sometimes. Even the more highly regarded broadsheets have a fetish for the picture story and some of them look more like lifestyle liftouts than the journals of record they once proudly claimed to be. Just a few weeks ago, I had to talk one of the executives at my newspaper out of pursuing a local stroke victim for a picture because he wanted to "humanize" a story about an appeal court's ruling on what constituted a personal injury, as opposed to a disease, in workers' compensation law. The story was a legal one, not a human interest one, but that didn't seem to carry much weight. The truth is we were just short of pictures that day.

And every media outlet in Australia these days seems to have a lemming-like attraction to overkill. Cast your minds back to the Port Arthur massacre, the Thredbo disaster and, worst of all, the death of Princess Diana, and you'll recall the media hysteria which accompanied those events. The hysteria is often followed by a determination to explore every conceivable angle on the story within 48 hours and, if there's a sniff of criminal conduct, to solve the case a day later. The fact that a police investigation might be jeopardised, or criminal charges might have been laid, or a coronial inquiry has been established, are irrelevant. Last month's murder in Canberra of a Saudi diplomat is a good case in point.

Isn't it about time that the media acknowledged some of these self evident facts and stopped being so pompous and self righteous? Neither side has a mortgage on wisdom and it is, I suggest, about time that both acknowledged that fact and climbed down from their respective ivory towers and high horses. So this is what we--and you--are up against.

As I said before, we need each other. But at the end of the day, I suggest it is the courts which need the media in a more fundamental sense because it is through the media that the courts acquire their credibility and account to the wider community. As the late Sir Richard Blackburn, a former Chief Justice of the ACT Supreme Court, once said to me, "I don't care if you ignore almost everything the judges say and write, as long as you report as fairly and fully as possible our reasons for sentencing offenders". What he was saying was that is where the court's credibility sank or swam. Sir Richard was acutely aware of what the court's public was most vitally interested in.

Professor Stephen Parker said in his preface to the Australian Institute of Judicial Administration's "Courts and the Public" report in September 1998, that the relationship between Australian courts and their public is "clearly in need of improvement if the public are to retain confidence in the judicial branch of our system of government".

Leaving aside the unfortunates who actually have to go to court, the only way the courts can maintain any sort of relationship with the public is through the media. I agree with Professor Parker's view that the appointment of media officers and the opening up of courtrooms to microphones and cameras, while wholly to be commended, will not cure some of the more deep-seated problems. He refers to the need, largely unmet, for the courts to mount "proactive educative programs". Educative of whom, he does not spell out. Of journalists? Well, that might help. But the only ones who attend forums like this probably aren't the ones who need educating. Very often, it is the anonymous bosses in the newsroom who need it. Of the general public? When somebody gets around to introducing civics to the Australian education system, something might be achieved, a generation or two hence. Of judges and court staff, perhaps?

Certainly. But once again, it is generally those who are interested in media issues, and who are appreciative of the judicial-media relationship, who attend the conferences.

Just over a year ago, during his State of the Judicature address to the Australian Legal Convention in Melbourne, the then Chief Justice, Sir Gerard Brennan, said of judicial accountability: "The real problem of accountability for the exercise of judicial power is not the giving of the account, it is the reporting and critical appreciation of the account that is given."

He referred to the fact that some of Australia's courts had appointed Public Affairs Officers to assist the media in the reporting of cases. But, he warned:

A media officer is not an advertising agent, seeking to influence favourable publicity or issuing releases designed to put a favourable spin on court decisions. The prerogative of and the responsibility for reporting and offering interpretation and criticism of court decisions must rest with the media. That is one of the great services that the media perform.

It is the means by which the judiciary's account for the exercise of their powers reaches the people. So regarded, legal reporting and comment are necessary elements in our constitutional

arrangements.

And, he added: "By employing an informed and critical faculty, the media justifies its freedom; conversely, ill-informed criticism abuses that freedom."

I'm inclined to agree. However, during the same address, and while discussing the competence and independence of lawyers, Sir Gerard warned:

A recently emerging phenomenon occasions some misgiving. Some advocates have assumed the role of public relations officers for their clients, making their client's case to the media and offering comment on the court's judgment. That role is inconsistent with the advocate's duty to the court. The court can have no confidence that such an advocate will fairly and candidly assist the court on both fact and law. And the accolade or lament that the advocate presumes to express about the court's judgment belittles the court's authority. It is commendable for advocates to provide journalists with information to assist in the accurate reporting of a case, so far as the material is on the public record, but if court proceedings were the postscript or the prelude to counsel's media release or court door interview, the courtroom becomes a mere backdrop to counsel's media performance.

Alas, I do not go along with all of that, particularly that stuff about the lawyer's duty to the court. This is hardly surprising, given that I'm a journalist who hangs around courts. In fact, I think a far bigger problem is the unwillingness of lawyers to speak out at all.

With the greatest respect to the former Chief Justice, I have to say I am more attracted to the view of Justice Robert French, of the Federal Court and the National Native Title Tribunal. While recently discussing the limits on judicial review, he wondered how the issue of public confidence in the courts was to be handled when a media report might "show to all the world an apparently harsh decision being apparently endorsed by the court". This is known to the rest of us as "the law is an ass" phenomenon. Justice French thought the judge in such a case should be at pains to make clear the limitations imposed by law upon his or her role. He was prepared to countenance something Sir Gerard apparently would not, namely, that this could be reinforced by "a suitably briefed media office".

The Australian Institute of Judicial Administration has recommended that all jurisdictions have media liaison officers. In cases where an imminent decision or sentence is likely to excite public controversy, the judicial officer should consider providing the media go-between with a statement about the case to assist in conveying a fair summary to the public. The purpose of this would be to neither encourage nor discourage the controversy but to inform any debate that does occur.

I mentioned before the Patrick Stevedores case in the High Court earlier in the year. There were great hordes of reporters covering that case, more than 20 on the final day. Only two of them were specialist legal reporters; the rest were political and industrial relations experts who understood the factual background perfectly but, with a couple of notable exceptions, didn't have a clue about the legal aspects. Most of them had trouble identifying a single member of the Bench. Now, if the High Court had a Public Affairs Officer, he or she might have guided those journalists through some of the basics, instead of a couple of their colleagues, myself included, having to provide a running commentary of what was really being said and by whom.

Other courts which have media officers, most notably the Family and Federal Courts, have, I am informed, been known to publish summaries of some of their decisions. Unfortunately, few of them have ever filtered through to Canberra. Perhaps I should spend more time surfing the net.

The High Court dabbled with the summary concept in the Patrick Stevedores case, much to the relief of the electronic media. It is a trend which is to be applauded and ought to be greatly expanded upon.

The reasons why many of the extremely busy workhorse courts of Australia have employed media officers are pretty obvious. Even the tiny handful of dedicated legal reporters in this country could not begin to keep up with the enormous output of the courts. Those few of us who try can keep on top of what the High Court is saying, but I doubt if anyone in the media has any idea of what is coming out of the Federal and Family Courts on a weekly basis, given that both have a large number of judges scattered across the country. But there is, I might add, more to making the courts' activities accessible than feeding the internet.

Of all the courts in the land most in need of beefing up their PR effort, the High Court stands out. The recent unprecedented and often ignorant attacks by politicians and conservative academics has probably done the Court's image no good at all. Claims that the Court has been usurping the role of Parliament and embarking on law making frolics of its own have largely gone unanswered. The federal Attorney-General does not see it as his job to defend the federal judiciary from attack, so who will? The Court itself is very reluctant. A biennial speech to the Australian Legal Convention from the Chief Justice is simply not enough. The Australian Institute of Judicial Administration seems to agree. Justice Michael Kirby, the Court's most outspoken member, does his best but can't carry the baton on his own.

There are more fundamental reasons for having a Public Affairs Officer at the High Court.

There are several hundred thousand visitors to the Court each year, or at least there were until budgetary constraints led the Court to close its doors on weekends and public holidays.

A fair proportion of those visitors, including a large number of school students, manage to be on hand when the Court is actually sitting. From my observation over more than a decade, almost all of them sit there for the obligatory 20 minutes with blank looks on their faces, comprehending almost nothing. What must they think of it all? What do they tell their friends and family back in Gympie and Mt Gambier? I shudder to think...and so should the Court.

Although almost none of those visitors probably walked away any the wiser they were, in fact, witnessing history. What was going on was probably every bit as important, and possibly more so, than what they heard during the 20 minutes they spent a kilometre or so away in the Senate.

Unfortunately, the High Court does very little to make those 20 minute bites of history more fruitful for the recipients. It probably doesn't have the resources to do so, but maybe it needs to find them. While visitors can never be expected to understand the niceties of senior counsel's discourse on statutory construction or constitutional theory, they might have a chance of understanding something of what they're hearing and seeing if they are provided with a one page summary of the case which explains who all those black-robed people are representing, why the case has reached the High Court, and the basic facts. One might even throw caution to the wind and mention the legal issues involved.

But will the appointment of a Public Affairs Officer at the High Court be the magic wand the judiciary needs if it is to win over the hearts and minds of the public? I cannot see that similar appointments in other jurisdictions have had any profound impact on public perceptions. It certainly has not worked for the Family Court, and probably never will. Nor will it work if the incumbent has neither the time nor the resources to do much more than respond to the media. Communicating with journalists is only part of the story.

The real problem is that almost no one truly understands the role of the courts in Australian society. Even the well educated and more aware among my friends and acquaintances have trouble coming to grips with the concept of the judiciary as the third arm of government, with a constitutional status broadly on a par with that of the executive and the legislature. Mention Chapter III of the Constitution and you've lost them. When a politician starts bleating about the High Court usurping the role of Parliament on issues like native title and free speech, they wonder if the politician might have a point. When I try to explain that judges have been making law for an awfully long time, and when I refer to the Star Chamber and the emergence of the common law, I get blank looks. The trouble is--as the Constitutional Commission discovered some years ago--Australians are blissfully ignorant about such matters. Most journalists are just the same.

It is not so much that the courts are barking up the wrong tree. The reality is that there is more than one tree in the forest. But only one--the one with a few journalists in it--seems to be getting much attention.