French, Justice Robert --- "Television and radio broadcasting in the Federal Court of Australia - a personal perspective" (FCA) [2005] FedJSchol 3

Television and Radio Broadcasting in the Federal Court of Australia

- A Personal Perspective

Presentation by Video Link to Broadcasting Courts Seminar - London

10 January 2005

Justice RS French

It is a pleasure to participate in this important seminar on the televising and broadcasting of judicial proceedings. I speak from an Australian perspective in which, unlike England, Wales and Northern Ireland, there is no global prohibition on the electronic media coverage of court proceedings.[1] The development of such coverage in Australia has been a matter of judicial discretion and has been incremental.

I have been a Judge of the Federal Court for nearly 18 years. For five years of that time, between 1994 and 1998, I held office as the President of the National Native Title Tribunal, an administrative body set up to mediate common law claims for Aboriginal title in the wake of the historic Mabo decision of the High Court in Australia in 1992. In my time as a judge I have, like most Federal Court judges and indeed most Australian judges, had only limited experience with televised or broadcast court proceedings. However I had a lot to do with the electronic media in both news and current affairs programs as part of the ongoing public educational role of the Tribunal in the complex and difficult area of Aboriginal native title.

In Australian mining practice it is often the case that large mounds of dirt containing quantities of ore are left behind after mining activities are completed. These are known as tailings dumps. Under Australian mining law you can get a licence to treat a tailings dump, that is to go through it, process it, and extract whatever there is of value in it. My experience with the electronic media led me to characterise the giving of interviews to television and radio journalists as creating a verbal tailings dump with a licence to treat. They take the pieces they want and leave the rest as waste. That metaphor has equal application to the electronic media coverage of court proceedings. For the time being the principal application of such coverage will be to obtain material for news or current affairs programs. In the case of news, a tiny fraction of what is actually said or seen, will be used. In the case of current affairs, more may be used but will still only be a small fraction of the total proceedings. This is not to deny the eventual application of television or radio recordings of such proceedings to:

1. Longer educational programs.
2. Dedicated court broadcasting channels on digital or cable television.
3. Storage of all or most of the relevant vision and sound on the Internet.

There are examples of these kinds of applications in existence. [2]

In the Australian context, pressures to provide access to television and radio broadcasters arise in the context of news or current affairs programs and to a lesser extent, educational documentaries. The demand is necessarily episodic and, for the most part, limited to cases of significant public interest or notoriety. It is quantitatively manageable and can be accommodated by a process of individual decision-making by the relevant judicial officer. Some may call this process ad hoc and subject to the vagaries of particular judicial preferences or prejudices. Some may describe it, more charitably, as incremental. Some may say it reflects the traditions of the common law, building conventions and practices on a case-by-case basis and in that process building mutual trust, confidence and predictability.

The incremental approach is only possible where there is no global statutory prohibition on the televising or radio broadcasting of court proceedings and no global mandate for electronic media access. There is no such statutory prohibition or mandate in Australia. Nor is there any constitutional or statutory Bill of Rights from which a mandate could be extracted. There are specific restrictions affecting such things as the identification of protected or vulnerable parties or witnesses such as child offenders and complainants in cases involving sexual offences.

Australian Courts have for a number of years allowed ceremonial proceedings to be televised. Special sittings to welcome new judges or farewell retiring judges are often televised for the purposes of a news grab for the evening news. My own official welcome to the Federal Court took place at a special sitting in November 1986 which I think was probably the first occasion on which television cameras had been allowed in the Federal Court for that purpose.

The essentially pragmatic character of Australian decision-making about these matters was reflected by a discussion which took place in my chambers on the morning of that welcome. The then Chief Justice of the Federal Court, the late Sir Nigel Bowen, was told by a court official that a television channel had asked to be able to film the welcome. His first inclination was to refuse. But the Chief Justice of Western Australia, the late Sir Francis Burt, who was present at the time, said words to the effect of ‘Oh why don’t you let them have a go’. Sir Nigel relented without any further substantive discussion and so it happened.

It became routine for such proceedings to be filmed and used for news programs. An additional use of such film has been to provide file footage so that when in later months or years a case involving one of the judges who was sitting at the welcome arises, footage can be shown of that judge in his or her robes. This is a hazardous application of the footage for the judge filmed might be smiling at some witty banter from bar to bench only to find his or her smile later reproduced as a tasteless smirk in the context of an horrific crime on which that judge is subsequently sitting.

It is now the case in Western Australia that State judges allow themselves to be filmed individually coming robed into an empty courtroom and sitting down so that the footage can be used generally in reporting cases relating to that judge. Needless to say, the judges maintain a suitably grim, all purpose demeanour, on such occasions. Subject to the file footage question, permitting the use of television cameras in ceremonial proceedings represented a low risk first step in the incremental approach to telecasting judicial proceedings generally.

A second step used with increasing frequency in Australia allows the filming of the beginning of proceedings of significant interest so that file footage is available of the judge or judges coming into court and taking their places at the beginning of the hearing together with footage of counsel at the bar table. This provides a backdrop to a verbal news report about the case.

This kind of access was permitted in the high profile Tampa case in 2001. That case involved the interdiction by the Australian Government of the Norwegian container ship Tampa which was bringing to Australia asylum seekers from the Middle East who had been rescued, at the request of the Australian Government, from a people smuggler’s vessel foundering in the ocean between Indonesia and Australia.

Human rights lawyers in Australia had brought habeas corpus and judicial review proceedings on behalf of the asylum seekers. Television cameras were allowed to film the entirety of the proceedings at first instance. Those proceedings before North J were based largely on agreed facts and no question of the effect of television cameras on witnesses or parties arose. When his Honour’s decision was appealed to the Full Court, the Court did not follow the same course but allowed cameras in at the beginning of the proceedings as indicated.

A third step in the incremental development to which I have referred, allows cameras into the Court when judgment is to be delivered. In the civil jurisdiction of the Federal Court and the State Courts this is often facilitated by the preparation of a judgment summary. While not forming part of the reasons for judgment, a judgment summary will seek to encapsulate in journalistically reproducible language the essential issues before the Court and the conclusions reached by the Court.

When the Full Court of the Federal Court delivered judgment on appeal from North J in the Tampa case, a summary was prepared and was read by the Chief Justice who also made the orders and published the reasons for judgment of all members of the Court.

It must be acknowledged that even the most intelligible and concise judgment summary is probably not going to be brief enough to be accommodated entirely within a one-minute news story. However, crafted with care, it should incorporate one or two key paragraphs or phrases which catch, so far as possible, the essence of the decision being made. These are the nuggets which it is necessary to place in even the smallest of tailings dumps represented by the judgment summary.

There is a risk with the use of judgment summaries in this way, which is also applicable to the print media, that there may be subtle dissonances or differences of emphasis between the judgment summary and the reasons for judgment.

A judgment summary was used by the trial judge in an important and high profile case in the Federal Court concerning the forced removal in the 1940s and 1950s of part-Aboriginal children from their parents. This was known as the ‘Stolen Generation’ case and involved a claim for damages against the Commonwealth for the implementation of an alleged policy of removing all part-Aboriginal children from their Aboriginal parents. The judgment in the case was factually and legally complex and occupied some 700 pages.[3] The judgment summary, which was televised, was criticised extensively in an article written for Quadrant magazine by Mr David Bennett QC of the Victorian Bar, who is also a Senior Fellow of the Law Faculty of the University of Melbourne.[4] While the complexity, both factually and legally, of that case heightened the risk that a judgment summary might attract the kinds of criticisms made by Mr Bennett, I have always had a degree of unease generally about the relationship between such summaries and the reasons for judgment themselves.

My personal preference, after a number of years of experience of judgment summaries, is to write an introduction to the judgment which forms part of the reasons, is to be read with them and encapsulates the issues in the case and the important conclusions arising out of it. This is a part of the draft judgment which I write when I have finished the rest and which can be read relatively painlessly by a journalist and, if necessary, could be read in whole or in part by the judge in a televised delivery of the judgment.

There is one area in which the televising of Federal Court proceedings has been particularly beneficial and powerful. That has been in relation to the conduct of native title determination hearings in which evidence is taken and judgment frequently given in remote parts of Australia. In many case determinations have been made by consent, usually after a long, complex and arduous process of negotiation and mediation, that native title exists. For the most part such consent determinations have been made, as have determinations after contested proceedings, on the country of the Aboriginal people who have applied for recognition of their native title. I have participated in the making of two such consent determinations. Other judges of the Court have made consent determinations in other parts of remote Australia. The Court convenes formally, usually under a tent or tarpaulin, to make the determination. Generally the judge and counsel are robed, often at the request of the indigenous people who do not want to see anything less than the full ceremonial dignity of the Court. Television broadcasts of these events demonstrate the importance and genuineness of the demands by indigenous people for recognition of their cultural and spiritual relationship to their country. They also demonstrate in a symbolic way the universality of the rule of law and the flexibility of which a modern court system can be capable in its application.

Beyond the practices to which I have referred there have been other isolated or one off experiments with television broadcasting in Australian courts and tribunals, the detail of which I can safely leave to Daniel Stepniak. Mr Stepniak himself has produced a substantial report for the Federal Court in December 1998 entitled ‘Electronic Media Coverage of Courts’. That report contains a very valuable overview of practices in a number of jurisdictions and a very helpful discussion of the issues attending the introduction of such coverage into the judicial process.[5] He proposed in that report an experimental program of electronic coverage in the Federal Court with an accompanying evaluation process. That project would have avoided the acute concerns which arise in the context of the broadcasting of criminal trials. The Federal Court does not presently have criminal jurisdiction. The project however did not proceed. I think it is fair to say that the development of electronic media coverage in the Federal Court of Australia for the foreseeable future will be incremental and, to some extent, responding to pressures for access by the electronic media on a case-by-case basis.

I should mention that there is in Australia, as in other jurisdictions, a particular sensitivity associated with criminal proceedings. This generally relates to the impact of televising such proceedings on the witnesses, complainant, defendant and jurors. But it seems to run wider. A few years ago when a Victorian Supreme Court judge permitted the filming of his sentencing remarks in relation to a serious sex offence against a child, his decision to do so engendered considerable controversy.[6] It is sometimes difficult to articulate with precision the basis of all the concerns which underlie the filming of criminal proceedings. It is a class of case, however, which has to be approached with particular care.

I have not endeavoured in this presentation to debate the merits and demerits of electronic media coverage of judicial proceedings or the important questions of principle that attend this debate.[7]

I recognise, as do all judges, the vital importance of open and public justice. In so doing I keep in mind that the primary function of the Court is to do justice according to law on the facts of the case as found by the Court. It is the impact of electronic media coverage on the discharge of that essential function that lies at the centre of concerns about general access by the electronic media to the Australian Courts. Some of these are tangible, some not so tangible. They include:

1. Physical distraction to those involved in the proceedings – a concern much mitigated by much less obtrusive technology than in previous years. This is reflected in the apparently changing position of the US Supreme Court in the Estes case in the 1960s and the Chandler case in the 1980s – see Estes v Texas [1965] USSC 138; 381 US 532 (1965) and Chandler v Florida [1981] USSC 18; 449 US 560 (1981).
2. The subtle and not so subtle effects of electronic media coverage upon participants in the court process particularly parties and witnesses whose willingness and ability to give their evidence and to make appropriate decisions is of vital importance to the integrity of the court process. While the open nature of the court proceedings means that there will always be questions of exposure and embarrassment in public, there is a power and immediacy surrounding electronic media coverage which, in the minds of some, may raise the risk of undue distraction and apprehension to an unacceptable level.
3. A cultural abhorrence of tabloid television journalism whose distorting effects may be the more powerful because of their access to visual and sound imagery. This is exacerbated by observation of recent high profile and probably quite atypical cases in the US and their extensive discussion on such outlets as Fox Television. There is a legitimate concern incidental to what may be a purely cultural abhorrence and that is the desire to ensure that the dignity and authority of the courts of law and public confidence in them should not be lowered.
   

It is doubtful whether there is any quantitative or qualitative research which, in a single project or consultation, can provide a definitive resolution of these issues and associated concerns. For my part, I think decisions about electronic media coverage are matters of risk management and confidence building. In that process the cautionary perceptions of judges and lawyers about the impact of coverage on their cases should not be dismissed as mere elitism, prejudice or timidity. And even if there are elements of those things, the simple fact is that electronic media coverage to be effective and most effectively used in the public interest will require the cooperation of all participants. That is best obtained by a process of mutual trust and confidence building, rather than by imposition. It is a process which I think will accelerate. The principal limitation will be the limited and episodic nature of the demand by media outlets for access. This in turn throws up the need to consider the desirability of a more proactive approach by the courts to providing electronic access, eg through the Internet, to records of proceedings as well as judgments and the treatment of television and radio broadcasting as elements of larger access strategies. That is the approach favoured by Mr Stepniak, which has much to recommend it.

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[1] See eg Criminal Justice Act 1925 – s 41
[2] Eg Cable network TVW arrangements with the Supreme Court of Washington State
[3] Cubillo v The Commonwealth [2000] FCA 1084; (2000) 174 ALR 97
[4] D Bennett, The Cubillo and Gunner Cases, Quandrant, November 2000 at 35-41
[5] See also for a more recent discussion by Daniel Stepniak, Stepniak Technology and Public Access to Audio-Visual Coverage and Recordings of Court Proceedings: Implications for Common Law Jurisdictions (2004) 12 William and Mary Bill of Rights Journal at 791-823
[6] R v Avent (Teague J, Supreme Court of Victoria, May 1995)
[7] These issues are well covered in the 1998 Report and the 2004 Paper by Mr Stepniak mentioned earlier. See also the useful discussion of the issue in the United States in J Sarner, Justice Take Two: The Continuing Debate over Cameras in the Courtroom (2000) 10 Seton Hall Const LJ 1053. For a discussion of the issues in the Australian context see also C Lane, On Camera Proceedings: A Critical Evaluation of the Inter-Relationship between the Principle of Open Justice and the Televisation of Court Proceedings in Australia [1999] MonashULawRw 3; (1999) 25 Monash UL Rev 54