Sackville, Justice Ronald --- "The judiciary and the media: a clash of cultures" (FCA) [2005] FedJSchol 6

AUSTRALIAN PRESS COUNCIL

THE JUDICIARY AND THE MEDIA:

A CLASH OF CULTURES

JUSTICE RONALD SACKVILLE*

Swissotel, Sydney
31 March 2005

* Judge, Federal Court of Australia.

I appreciate the opportunity to contribute, however marginally, to the ancient and civilised discourse between judges and representatives of the media. I shall of course be temperate in my remarks, bearing in mind that in this forum I do not enjoy the absolute immunity that clothes judges and lawyers in the courtroom, a protection that I know enjoys the enthusiastic support of all right-minded observers.

I should probably set out the judicial log of claims at the outset. Our demands are very simple. We want to see more reports of the kind published in 1856 by the Law Magazine about a judgment of Dr Lushington, one of the great civilian (ecclesiastical) lawyers on an obscure point concerning the liturgy. After praising Dr Lushington (who was actually a tolerant man for his times) as a bulwark against the dangers of the papacy, the Law Magazine observed that the reader of the judgment:

‘will there find, not only the whole law of the subject skilfully and admirably elucidated, but abundant passages of rich historical illustration, relieved by the most acute observation and profound thought. The past year witnessed two striking events, - the Austrian Concordat and this judgment of Dr Lushington. By their aid we may accurately compare the relative states of the two empires; and in reference to ourselves we may exultingly say, “Happy are the people that are in such a case!”’.[1]

I would ask that you use this as a template for all commentary on judicial decisions, particularly sentencing.

A CLASH OF CULTURES
A very acute commentator has pointed to what many would see as a paradox. He deplored:

‘the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and mendacious spirit of those who write them. ... These ordures are rapidly depraving the public taste.

It is however an evil for which there is no remedy, our liberty depends on the freedom of the press, and that cannot be limited without being lost’.[2]

The commentator was Thomas Jefferson. While Jefferson’s remarks were not directed to newspaper reports about courts or judges, they synthesise two different but not necessarily incompatible ways of looking at the media. However, not everyone in this country would agree with Jefferson’s solution to the paradox.

In some respects, surprising as it may seem, the interests of the courts and the media coincide. Both the courts and the media perform functions essential to the maintenance of a free and democratic society and the preservation of the rule of law.[3] For example, by reporting court proceedings and decisions, the media can promote public understanding of the legal system and the values it upholds, as well as disseminating information about important developments in the law. The scrutiny of a free press, aided by the principles of open justice developed and safeguarded by the courts, far from being inimical to the work of judges, fosters high standards of judicial conduct and performance. It also encourages informed community debate about the policy issues that must be confronted by the third arm of government.

Yet it is undeniable that there is a clash of cultures between the courts and the media. Obviously enough, large sections of the media are in the business of attracting the greatest number of viewers or readers. The rigorous pursuit of the truth (with all its nuances and complexities), the dispassionate analysis of controversial issues and the patient sifting of contentious materials are not always the path to higher ratings or a larger readership. The use of sensational and often deliberately misleading headlines may be an excellent means of attracting a reader’s attention, but a very poor way of encapsulating correctly the substance of a story.

By contrast, the courts necessarily emphasise impartiality in adjudication, rationality of argument and stringent procedural safeguards designed to ensure that the fact-finding process is fair. The values the courts seek to uphold, particularly the protection of civil liberties and individual freedoms (including those of accused persons), are by no means popular, especially when applied in a manner that appears to frustrate short-term community sentiment. For this reason, judgments which protect the civil liberties of unpopular people, such as those accused of criminal conduct or those who have been ‘disgraced’ in the eyes of public commentators, are often distinctly uncongenial to the mass media. Restrictions on the reporting of matters that might affect a fair trial are particularly resented by the media and often erroneously portrayed as judges protecting their ‘patch’.

The courts are often seen by commentators in the media as little different from other public or private institutions and thus in no special position. From this perspective, the courts seem to arrogate to themselves unique powers and privileges that are scarcely consistent with egalitarian values or the cold market forces that affect lesser mortals (including journalists). They sympathise with De Tocqueville’s remark that

‘if I were asked where I placed the American aristocracy, I should reply without hesitation, that it is not composed of the rich, who are united by no common tie, but that it occupies the judicial bench and the bar’.[4]

From the judges’ perspective, however, these ‘powers and privileges’ do not exist in their own interests, but for the benefit of the broader community. For example, security of tenure and even pension entitlements are not spoils captured by a particularly effective interest group (as some might think), but essential safeguards for an independent and incorruptible judiciary committed to maintaining the rule of law. Economic rationalists (whose grasp of the role of the courts in preserving the rule of law is often tenuous) and those who are suspicious of ‘elites’ (a boo word of peculiar emotional force in Australia) are hard to convince.

The vehemence of some media attacks on the judiciary or on individual judges or magistrates reflect a related phenomenon. In an age of great media power and influence, including the ability to shape public opinion and therefore political events, the courts are the one institution, so far as their decisions are concerned, that is largely impervious to media campaigns. The independence of the judiciary means, among other things, the strength and courage to resist the shrill demands of self-appointed arbiters of public opinion. I suspect that some in the media do not appreciate that independence and indeed are frustrated by it.

The media and the courts, obviously enough, work in quite different ways. The courts proceed deliberately and carefully. What the community might see as the dilatory majesty of the law is usually a consequence of the courts seeking not only a just result, but a fair process, including the giving of adequate reasons. Justice is not easily reduced to Productivity Commission statistics. The media, on the other hand, operate under tight deadlines and constraints that are usually foreign to the courts. The thirty second ‘grab’ has no counterpart in the legal system. Judges often believe that an accurate account of detailed evidence or complex litigation is not possible in a two minute television segment or a short newspaper article. Yet reporters must produce their reports within these limitations of space and time.

Furthermore, in an age where interest groups, politicians and celebrities battle for air time or column inches, judges are subject to significant restrictions on their ability to engage in public debate. While many judges are now much less reticent than once was the case to comment on matters of general public interest, they ordinarily cannot comment on particular cases they have decided. Their judgments speak for themselves, if anybody cares to read them.[5] For example, a sentencing judge is not in a position to engage in a debate about the propriety of a particular sentence he or she has imposed on a convicted offender. While the court concerned perhaps can point out demonstrable errors in a media report, the discussion is often extremely one-sided.

Most institutions these days whose activities are of interest to the media have professionals whose job it is to secure favourable coverage. The courts now have media liaison officers who assist reporters in reporting on judgments and who respond to other day to day queries. But courts and judges are not in a position to engage in the forms of media manipulation that are the stock-in-trade of other callings, notably politicians. In any event, with certain obvious exceptions, judges are usually neither trained nor temperamentally suited to participate in the rough and tumble of media controversy.

A JUDICIAL PERSPECTIVE
Given that there is a clash of cultures, what can be said about it from the perspective of the judiciary, or at least one member of it? I would advance six propositions that provide guidance as to the approach that should be taken by courts, judicial officers and their representative organisations.

1. Media Criticism of Courts is not New
Although some commentators bemoan the increasing incidence and intensity of attacks upon the judiciary,[6] there is nothing novel about vehement or even vicious criticism of courts and individual judges. The examples are endless, but one from 125 years ago illustrates the point.

In 1880, the Evening News, a Sydney daily, published an article entitled ‘Temporary Judge Windeyer and the Press’. The article said that:

‘His Honour the Temporary Judge has had another opportunity to show his utter want of judicial impartiality, and from the bench he has delivered once more a bitter and one-sided advocate’s speech...

With such a system of judicial advocacy, it is only when the jury are exceptionally intelligent, as was the case yesterday, that anything approaching justice can be expected to result from a trial before Mr. Windeyer’.[7]

As it happens the publishers of the newspaper had recently lost three libel actions tried before Windeyer J and had been ordered to pay damages in each case. The Full Court of the Supreme Court of New South Wales considered the comments imputed partiality to Windeyer J, went beyond ‘all allowable limits’ and constituted contempt for scandalising the Court.[8] The publishers were fined £250, a not inconsiderable sum in 1880.

2. But its Impact can be More Severe
While the phenomenon of vehement criticism of the judiciary is not new, what has changed is the effect that damaging comments can have. As one observer says:

‘the sheer speed with which ... corrosive messages travel and the vast impact they acquire through modern communications technologies distinguish the current situation [from earlier times]’.[9]

In this changed environment, even relatively robust institutions and individuals, if subjected to groundless but plausible attacks, can suffer serious and sometimes lasting harm. This is particularly true of individuals, including judicial officers, who are subjected, rightly or wrongly, to relentless media scrutiny and ridicule. Anyone who has been defamed by the mass media understands what a searing experience it is.

There is a social cost to media hyperbole directed to the courts. It may be a cost that is inevitable in a society that protects free speech, including the excesses of the media; but it is a social cost nonetheless. Some who would make fine judges or magistrates are not prepared to accept judicial office because they realise that their job entails the risk not merely of legitimate public scrutiny but of ill-informed and even vicious attacks. Others who are excellent judges or magistrates may leave the bench early because they consider the burdens of judicial office to outweigh the benefits.

3. The Media are not Monolithic
The quality of reporting about court cases, the judicial system and judges, as might be expected, varies widely in quality. Some reports and commentaries are of very high calibre, particularly taking into account the time pressures and space limitations under which reporters and commentators operate. I have been surprised and impressed from time to time at the accuracy and incisiveness of media reports of judgments to which I have been a party, some of which are published in the electronic or print media within a very short time after delivery of the judgment. Longer pieces often reflect quite thorough research and provide very fair accounts of competing views.

Any overall assessment of the quality of reporting is necessarily subjective to some extent. But it is fair to say that much media reporting falls into the category of honest and diligent attempts to summarise accurately the outcome of a case, the substance of evidence given at a trial or the reasons for a decision. This category includes fair (even if not necessarily convincing) criticism of decisions or court practices. Deficiencies in reporting are not uncommon, but are explicable by the complexity of the source material, time pressures and space limitations.

A second significant category of reports or commentaries can be described as those that are deliberately provocative or sensational. The prevalence of such reports reflects the general view that ratings are enhanced by conflict, preferably spiced with a touch of human drama. Reports of sentencing of offenders are peculiarly suited to this approach. The reporter can focus on the apparently universal bitter disappointment of the victim or his or her family at the manifest leniency of the sentence, frequently to the exclusion of any material, such as the reasons of the judge or magistrate, that might explain why the offender received the particular sentence. This, too, is where the art of headline drafting comes into play. Newspapers have a self-serving practice that generally separates the journalist responsible for a story from the headline which is inserted (so far as an aggrieved person is concerned) by an anonymous sub-editor. While a story may be accurate enough, a misleading headline can create an altogether false impression (and, of course, is often designed to do just that).

A third class of reports is not merely ill-informed or unbalanced, but gratuitously vicious. This class includes reports or commentaries which contain a core of truth on matters of legitimate concern, but are either exaggerated out of all proportion or impute to all members of a group (such as judicial officers) the failings of one or two. It also includes the relentless pursuit of individuals who have fallen into disfavour with the media, sometimes long after there is any genuine public interest in their private behaviour.

While some of my judicial colleagues are inclined to think that all reporting falls into this category, I think that only a relatively small segment of reports or commentary can be so described. They may, however, be disproportionately influential, given the derivative nature of much media commentary.

4. Nor is the Judiciary Monolithic on Contempt
Neither the judiciary nor the legal profession generally has uniform attitudes towards the limits of media criticism of courts and individual judges. The diversity of approach is particularly evident in relation to the form of contempt known as scandalising the court. This form of contempt is rarely invoked these days, the High Court having recently said that the summary jurisdiction should ‘be exercised sparingly, and only when necessity demands’.[10] Nonetheless, the very existence of contempt for scandalising the court is a source of considerable irritation to the media, which see it as a fairly constant background threat.

The classic statement of principle is that of Rich J in a 1935 case. Scandalising publications are those:

‘which tend to detract from the authority and influence of judicial determinations publications, calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office’.[11]

Yet nearly forty years before Rich J’s statement of the law, the Privy Council had said that:

‘[c]ommittals for contempt of Court by scandalising the Court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them’.[12]

The early High Court seemed to take a leaf out of the Privy Council’s book. In 1911, the three original members of the High Court dismissed a motion for contempt against the publisher of the Hobart Mercury, the 82 year old H R Nicholls. Nicholls had accused Higgins J, the President of the Court of Arbitration and a High Court Judge, of being ‘a political Judge’ who had been appointed because he had well served a political party. Moreover, Nicholls added, Higgins seemed to know his position and did not intend to allow any reflections on those to whom he was indebted for his judgeship.

In a judgment delivered on behalf of the High Court, Griffith CJ said that an imputation of want of impartiality was not necessarily a contempt of court.[13] Indeed, Griffith CJ implied that Higgins had deserved what he got, given that he had made some rather curious remarks protective of the Government in the course of hearing a case in the Arbitration Court, to which Nicholl’s comments were a response.[14]

The distaste of some Australian judges for the law of scandalising the court was reflected in Murphy J’s powerful dissent in a 1983 case in which the union official, Norm Gallagher, was committed for contempt and sentenced to imprisonment. Murphy J argued for the adoption in Australia of the United States standard, which requires a clear and present danger to judicial administration before a ‘scandalising contempt’ can be made out.[15] He expressed the view that the United States approach achieved a better balance between the conflicting interests of free speech and the integrity of the judicial system. Many would agree, even if the majority of the High Court did not.

In 1987, the Law Reform Commission published its report on Contempt.[16] The Commission argued that retention of contempt for scandalising the court, in the terms approved by the High Court, could not be justified. The Commission said that the offence intruded too far into freedom of expression and argued that there was no evidence that the administration of justice could be undermined by comments of the sort that had attracted sanctions. The Commission recommended substituting a much narrower offence of publishing an allegation imputing misconduct to a judge or magistrate. Such an offence would be committed only where publication is likely to cause serious harm to the reputation of the judge or magistrate in his or her official capacity.

The Commission’s reasoning is compelling and, at the very least, its recommendations should be implemented. Quite apart from the merits of the argument, it seems to me that the existence of ‘scandalising’ contempt in its present form, is of no benefit to courts or judges and, if anything, is harmful to the standing in which courts are held.

5. ... Or on Defamation
There are different opinions within the judiciary as to the application of the laws of defamation to media attacks on members of the judiciary. Clearly enough, a judge or magistrate does not give up his or her rights on appointment to the bench. Moreover, as the High Court said in the seminal Lange case:

‘[t]he constitutionally prescribed system of government does not require – to the contrary, it would be adversely affected by – an unqualified freedom to publish defamatory matter damaging the reputations of individuals involved in government or politics’.[17]

Nonetheless, there is a body of opinion among judicial officers, that judges or magistrates should be extremely reluctant to invoke the law of defamation as a response to wrong-headed or even malicious media commentary, at least unless there is no feasible alternative. (Of course, I make no comment on whether relatively recent defamation actions by judicial officers meet this criterion.)

Be that as it may, the law relating to defamation of judicial officers is not settled. In the Popovic case, a majority of the Victorian Court of Appeal held that the implied constitutional freedom of political communication generally does not apply to criticism of a judicial officer, as distinct from commentary about elected officials or members of the Executive.[18] That aspect of the case was left open by the High Court, which dismissed the publisher’s application for special leave to appeal on the ground that even if the implied freedom applied, it would not help the publishers since they had not acted reasonably. The Court said that the refusal of special leave should not ‘be understood as endorsing conclusions reached in the courts below’ on the implied constitutional freedom.

There are therefore important issues yet to be decided that bear on the leeway to be accorded critics of judicial officers. The contention that judicial officers should be in no different position to elected officials in this respect has a good deal to commend it as a matter of principle, but is not a necessary consequence of the implied constitutional freedom of political communication that has been developed by the High Court.

6. Even so, there Should be Some Limits
It is no secret that The Australian and, to some its extent, its stablemates, have recently targeted the judiciary for what they see as a range of assorted sins. They are not the first and will not be the last to do so.

Judicial officers can have no legitimate complaint about accurate reporting or honest and fair criticism of judgments, or even of non-private behaviour that bears directly on a judicial officer’s fitness to hold office. The courts have always stressed the importance of a free press and they have meant what they have said. For example, while lateness in filing a tax return is not, of itself, a heinous offence, judges or magistrates who do not file their tax returns on time without lawful excuse cannot be altogether surprised if their defaults are drawn to public attention. To take another example, a judge who, without any reasonable excuse, persistently delays delivering judgments for very long periods to the detriment of litigants cannot expect to be immune indefinitely from public criticism.

The difficulty is when media reports or commentary go far beyond what can be regarded as either accurate or fair. In a 2002 editorial, The Australian asked this rather revealing question:

‘[s]hould citizens be free to say practically whatever they please about judges and the courts, no matter how disrespectful, vicious or untrue?’[19] (Emphasis added.)

Not surprisingly, The Australian answered this question in the affirmative.

The question was drawn from a paper (duly acknowledged in the editorial) delivered by the Chief Justice of Massachusetts at the University of Sydney.[20] Chief Justice Marshall argued cogently in favour of the United States’ approach to ‘scandalising contempt’, comparing it favourably to the more restrictive position in Australia. However, two things should be noted. First, even in the United States, as I have noted, scandalous comment may lead to a citation for contempt if there is a clear and present danger to the administration of justice. Secondly, notwithstanding the First Amendment guarantee of free speech, a public official in the United States, including a judge, may claim damages for defamation if a published report is false and affected by ‘actual malice’[21] - that is, with knowledge that it was false or with reckless disregard as to whether it was false or not.[22]

There are some who see the recent Popovic case as a serious infringement of press freedom in Australia.[23] It is important, however, to understand the key factual findings made in that case. The article complained of by the plaintiff had reproduced an edited extract from a transcript which recorded an exchange between the plaintiff (a magistrate) and a prosecutor. The Victorian Court of Appeal found that by publishing the edited extract, the author had:

‘distorted what in fact occurred, with the result that he was able to make a critical comment [about the plaintiff]. If the whole transcript had been published, it would have been clear to the reasonable reader that there was no basis whatsoever for the comment’.[24]

The Court characterised the author’s conduct:

‘in the circumstances at worst dishonest and misleading and at best, grossly careless’.[25]

Obviously, the Popovic case was not fought on the ‘with malice’ standard that applies in the United States and no such finding was made. But the United States authorities make it clear that there is no complete immunity for the media in respect of reporting that is not merely disrespectful, but ‘vicious [and] untrue’. It is wrong to represent otherwise.

While many in the media, understandably enough, support a situation in which the press is subject to no external constraints, other than perhaps a voluntary self-regulating mechanism, such a position cannot be justified in principle or in practice. The power of the press to destroy the reputation of individuals is so great that it is difficult to accept that there should be no remedy for egregious mistakes which are the product of dishonesty or recklessness. Whether legal remedies should effectively be confined to awards of damages is another question altogether. But ‘freedom of the press’, like all slogans, cannot be treated as an absolute.

THE JUDICIARY’S RESPONSE
What should be the response of the judiciary or its representative organisations to the current climate of intensely critical questioning and often unfair criticisms? The answer must take account of the reality that the traditional stoic silence in the face of an ill-informed or even malicious attack, although dignified, may not be the most effective means of maintaining public confidence in the judicial system. The answer should also recognise that judicial officers, as one would expect, hold divergent views on this question. No individual or body, certainly not a chief justice, can dictate to a particular judge or magistrate what course he or she should take in response to an attack in or by the media.

The following are my own views:

(i) Those accepting judicial office must understand that the possibility of critical media attention, justified or unjustified, goes with the job. This is particularly so for those who must undertake the thankless task of sentencing criminal offenders. This vulnerability to public attack and even ridicule does not necessarily suit every lawyer who otherwise would be eminently fitted for a judicial post. As I have observed, the prospect of media attacks, going beyond fair criticism of a judicial officer’s work, has been a factor in persuading some judges (not necessarily the subject of criticism) to opt for early retirement. Nonetheless, those accepting judicial office must do so with their eyes open. Both fair and unfair public criticism are part and parcel of judicial office.

(ii) More frequent resort to the law of scandalising contempt is not a viable option. As I have noted, this form of contempt has largely fallen into disuse, except perhaps as a remedy for the most outrageous conduct. In any event, contempt of court is a blunt instrument and, for the reasons I have given, reliance upon it can be counterproductive if the object is to protect the standing of the courts. Whether a judicial officer aggrieved by false accusations in the media should institute defamation proceedings is a matter for that judge or magistrate. However, it is important to remember that defamation actions are not brought on behalf of the institution itself. While the prospect of a large damages award doubtless can concentrate the mind of a publisher, the rationale for the law of defamation does not include protecting the reputation of a particular court or the legal system in general.

(iii) The courts themselves need to do more to communicate effectively with the media. There have been substantial improvements in recent years. For example, many Australian courts have appointed media liaison officers. Some have adopted the practice of distributing judgment summaries in cases of public importance, which have clearly been of considerable benefit both to reporters and to the courts themselves. More should be done. I have written elsewhere of the contribution the High Court could make by presenting its judgments on issues of great national importance in more user-friendly form.[26]

In addition, the concept of open justice could well be developed further to allow television and radio broadcasters greater opportunities to televise or broadcast court proceedings.[27] There are interests other than those of the media that must be protected, notably those of accused persons and witnesses. But adapting open justice to the age of electronic telecommunications does not necessarily imply the circus-like atmosphere exemplified by the O J Simpson trial in California. I am not naïve enough to believe that measures such as this will eliminate inaccurate reporting or media excesses. But they might help those who are genuinely interested in understanding how courts work.

(iv) Judicial officers need to understand better the ways of the media. Understanding does not necessarily imply approval, but it tends to minimise the risk of counter-productive reactions or disproportionate alarm at standard media exaggeration. Of course, the media should take the trouble to understand better the ways in which the courts work, but that is something over which judicial officers have little control.

(v) The courts and the organisations representing the judiciary should be more willing to respond to media attacks, in particular to correct ill-informed criticisms or provide balance in the face of media excesses. I do not mean to suggest that heads of jurisdiction or the Judicial Conference of Australia should leap to the defence of every judge or magistrate whose decisions or actions are subjected to vigorous criticism. Intervention should not be the norm, but should be limited to cases where the report is demonstrably false in significant respects, reflects a serious misunderstanding of what has occurred or otherwise would create a misleading impression in members of the public. I recognise that the courts and judicial officers will always be at a disadvantage in seeking to correct inaccurate or misleading reports. They have available few, if any, of the techniques employed by ‘spin doctors’. They cannot compel the media to allow a fair opportunity to respond if they are unwilling to do so. On balance, however, this is preferable to the blunt instruments of contempt or defamation actions as the means of attempting to maintain confidence in the judicial system.

CONCLUSION
The Australian judiciary plays an indispensable role in preserving freedom and the rule of law. In general, that role is well recognised by governments and among the wider community. Media criticism is essential as a means of encouraging improvements in the administration of justice for which the courts and judicial officers strive. Tolerance of (but not silence in the face of) media excesses is the price that has to be paid to safeguard the right to make legitimate criticisms of our public institutions. The judicial system is robust enough to survive media excesses and to continue to ensure that we enjoy the benefits of living under the rule of law.

---

[1] Quoted in S M Waddams, Law, Politics and the Church of England (Cambridge University Press, 1992), 295-296.

[2] Cited in the opinion of the majority in Bridges v California [1941] USSC 148; (1941) 314 US 252, 270 (Black J).

[3] S Breyer, ‘Communication Media and its Relationship with Supreme Courts’ (1998) 42 Saint Louis Uni LJ 1083, 1085.

[4] A De Tocqueville, Democracy in America (Henry Reeve trans, 1988), 259, cited by S J Fortunato, ‘On A Judge’s Duty to Speak Extrajudicially: Rethinking the Strategy of Silence’ (1999) 12 Geo J Legal Ethics 679, 701 n 79.

[5] Of course judgments of the superior courts are now accessible on-line, usually within a very short time after delivery.

[6] See, for example, M Kirby, ‘Attacks on Judges: A Universal Phenomenon’ (1998) 81 Judicature 238.
[7] In the Matter of ‘The Evening News’ Newspaper (1880) 1 NSWLR (L) 211, 211-213.
[8] Ibid, 239.
[9] R M O’Neil, ‘Assaults on the Judiciary’ (1998) 34 Trial 54, 54.
[10] Re Colina; Ex parte Torney (1999) 200 CLR 386, 391 (Gleeson CJ and Gummow J).

[11] R v Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434, 442. The principles stated by Rich J were applied by a majority of the High Court to uphold a contempt finding and sentence of imprisonment against Norm Gallagher, the Federal Secretary of the Builders Labourers’ Federation: Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238.

[12] McLeod v St Aubyn [1899] UKLawRpAC 33; [1899] AC 549, 561. The appeal was from St Vincent. The Privy Council thought that committals for contempt could still be appropriate for ‘small colonies, consisting principally of coloured populations’. It is not clear whether this rationale was thought applicable to Australia.

[13] The King v Nicholls [1911] HCA 22; (1911) 12 CLR 280, 286. The other judges were Barton and O’Connor JJ.
[14] The episode is described by J Rickard, H B Higgins: The Rebel as Judge (1984), 186-188.

[15] Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238, 246. The leading cases are Bridges v California [1941] USSC 148; (1941) 314 US 252 and Pennekamp v Florida [1946] USSC 101; (1946) 328 US 331.
[16] Australian Law Reform Commission, Contempt (Report No 35, 1987).
[17] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 568.

[18] The Herald and Weekly Times v Popovic [2003] VSCA 161, at [2]-[10] (Winneke ACJ); [495]-[509] (Warren AJA). Application for special leave to appeal dismissed: [2004] HCATrans 180 (28 May 2004).
[19] The Australian, 23 August 2002, 12.

[20] Margaret H Marshall, ‘Dangerous Talk, Dangerous Silence: Free Speech, Judicial Independence, and the Rule of Law’ (2002) 24 Sydney L Rev 455.
[21] See New York Times Co v Sullivan [1964] USSC 40; 376 US 254 (1964).

[22] New York Times Co v Sullivan, [1964] USSC 40; 376 US 254, 279-280 (1964); Garrison v Louisiana [1964] USSC 217; 379 US 64 (1964).

[23] See Weekend Australian, 15 June 2002, 18 (‘The case against laws that hobble our free speech’).
[24] The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161, at [225] (Gillard AJA).
[25] [2003] VSCA 161, at [228].
[26] R Sackville, ‘The 2003 Term: the Inaccessible Constitution’ [2004] UNSWLawJl 3; (2004) 27 UNSWLJ 66.

[27] D Stepniak, Electronic Media Coverage of Courts (A Report Prepared for the Federal Court of Australia, 1998).