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There are many reasons for such ignorance. Some responsibility lies with both the media and the High Court. For much of this century, media scrutiny of the High Court has been rare. Attention has shifted to the Court only when political debate has become enmeshed with litigation before the Court or when a decision promised significant political ramifications. This explains the coverage given to the Bank of NSW v Commonwealth (the "Bank Nationalisation Case")[3] in 1948, Australian Communist Party v Commonwealth (the "Communist Party Case")[4] in 1951 and Commonwealth v Tasmania (the "Tasmanian Dam Case")[5] in 1983. In the mainstream media, the judges responsible for such decisions have been almost completely unknown and the role of the High Court in Australian democracy has been frequently misunderstood, as shown by the public debate in 1997 over whether the judges of the High Court have a law-making function.
More recently, there has been a shift in coverage of the High Court. It is true that recent cases such as Kartinyeri v Commonwealth (the "Hindmarsh Island Case")[6] and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (the "Patrick Stevedores Case")[7] have continued to be a focus of attention. However, the Court itself has also come to be recognized as an important player in Australian government. The media and the Australian public have demonstrated an interest in the High Court and its judges as participants in the development of Australian law. For example, there has been a high interest in recent appointments to the Court and how this might affect the approach of the Court.
This paper explores changed understandings of the High Court and the effect this has had on the relationship between the Court and the media. It suggests reform and means of improvement, with the aim of bringing benefits to the community as a whole. The focus is on reform by the High Court, rather than by the media. This is not to suggest that the greater responsibility lies with the Court. However, it does reflect that it is in the High Court's own interest to foster accurate and informed reporting of its work. In this area, the Court has the most to lose.
Sir Owen Dixon himself did not strictly adhere to the legalism he advocated. As Leslie Zines has shown, in reaching his decisions Dixon frequently took account of extra-legal factors, including considerations of social and political policy and value judgment.[12] As Dixon stated in Melbourne Corporation v Commonwealth:
In the many years of debate over the restraints to be implied against any exercise of power by Commonwealth against State and State against Commonwealth calculated to destroy or detract from the independent exercise of the functions of the one or the other, it has often been said that political rather than legal considerations provide the ground of which the restraint is the consequence. The Constitution is a political instrument. It deals with government and governmental powers. The statement is, therefore, easy to make though it has a specious plausibility. But it is really meaningless. It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, but whether they are compelling.[13]
Sir Garfield Barwick, who was Dixon's successor as Chief Justice from 1964 to 1981, also argued for a legalistic approach[14] while having recourse to questions of policy.[15] More recently, as Chief Justice from 1987 to 1995, Sir Anthony Mason differed from Dixon and Barwick. Like his predecessors, Mason applied policy considerations, and even "community values".[16] However, unlike them, he admitted to doing so. Mason, in his published writings and speeches,[17] and the Mason Court through decisions on topics such as native title[18] and freedom of political communication,[19] swept away the popular notion that the Court was engaged in a purely legalistic endeavour that did not involve making law or recourse to policy factors. This made it clear that the law-making process was not confined to Parliament.
Legalism cannot remove the need for policy and value judgment in the work of the High Court. Judges do more than apply and interpret the law. They also make it. Over 25 years ago, in England, Lord Reid of the House of Lords dispelled the notion that judges do not make law by stating "we do not believe in fairy tales any more".[20] The High Court, in particular, is charged with a law-making function. Indeed, this is its central role. The Court's own procedures regarding special leave ensure that it deals with only the most important and problematic areas of the law. The cases that come before the High Court do so because there is no law on the topic or because the existing law does not provide adequate answers.[21]
Wik Peoples v Queensland (the "Wik Case")[22] is a clear example. Accordingly, the job of the Court is not merely to apply existing law, but to develop the law by, for example, filling in the gaps that have become apparent in the coverage of the law. This is how the common law has grown and been refined in England and Australia over centuries. It is an inescapable aspect of the judicial role that has been undertaken by the High Court since its inception in 1903. What has changed in recent years is not that judges have starting making law, but that they have owned up to doing so. This is one of the most important legacies of the Mason Court. As a consequence, High Court judges are now more likely to recognize their role as law makers and explicitly bring to light the policy choices confronting them.
Old notions about the High Court have been stripped away. Recognition of the Court's law-making role has not been the only major change. The Court has also demonstrated sympathy for the protection of human rights against governmental power. While Australia does not possess a Bill of Rights, a majority of the Mason Court was prepared to imply a freedom of political communication from the Constitution,[23] and individual judges even found that the Constitution might imply a guarantee of legal equality[24] or a freedom from retrospective criminal laws.[25] As a result, many Australians turned to the High Court rather than the ballot box to protect their liberty. This was particularly true for those Australians with little political power, such as Australia's indigenous peoples.[26]
These changes have incurred a significant cost. The tension between the High Court and the other arms of government has increased markedly. It is no coincidence that at the same time as the decline of legalism and the rise of its rights jurisprudence, the High Court attracted increasing controversy and the legitimacy of its decision making came under direct challenge, including from Australia's political leaders. Indeed, from the handing down of the Wik case on 23 December 1996, the Brennan Court experienced one of the most difficult periods since the High Court's creation in 1903. The judges were attacked as a "pathetic ... self-appointed [group of] Kings and Queens", a group of "basket-weavers" and even the purveyors of "intellectual dishonesty".[27]
Legalism no longer offers the High Court a refuge from controversy and scrutiny. There is no turning back to the Dixon era of "strict and complete legalism". The Court will inevitably face difficult cases raising unresolved issues of law that will expose its reliance upon matters of policy and value judgment. As a result, even where it adopts a legalistic or black-letter approach, as in decisions such as Wik, this will not insulate the Court from public controversy.
The Australian community is almost totally dependent upon the media for explanation and analysis of the work of the High Court. Hence the relationship between the High Court and the media is crucial to public confidence in the Court. This is particularly true at a time when the High Court has acknowledged its law-making role, and has exercized it in protecting fundamental rights and freedoms against governmental action. If the Court is unable, through the media, to maintain the confidence and trust of the community, it risks a similar level of cynicism as is found in the views of many Australians about their elected representatives and Australia's system of representative government.
In some respects, the media is effective in its coverage of the High Court. In the tradition of David Solomon at The Australian, and now at The Courier-Mail, other Australian newspapers have journalists who write extensively about the High Court, such as Rod Campbell at The Canberra Times, Margo Kingston at The Sydney Morning Herald, Bernard Lane at The Australian and Chris Merritt at The Financial Review. Many newspapers have also been willing to publish opinion pieces by lawyers and academics explaining and commenting upon decisions of the Court or its workings.
Nevertheless, the media often betrays little understanding of the High Court, and presents a distorted, or at best superficial, view of the Court to the public. The subtleties of decision making by seven independent judges are ill suited to the ten second grab of the nightly news. Reporters can also fail to appreciate the significance of the work of the Court, and the distinctive nature of the Court as opposed to the other arms of government. Despite the opening of the High Court Building in Canberra in 1980, there is no High Court press gallery, and the Court is frequently reported ad hoc by journalists who would otherwise cover the political events of the day.
The High Court must be active in seeking to promote accurate and informed coverage of its work. It has too much at stake to do otherwise. In particular, it must accept a higher degree of responsibility for the communication of its findings to the community through the media. At present, there is an unfortunate disjunction between the public's inability to comprehend decisions of the High Court and the use by members of the Court of notions such as "community values"[28] and popular sovereignty.[29] While the Court has set up its own web site,[30] and is a world leader in this regard, its decisions remain largely impenetrable to anyone but the initiated. Judgments of the High Court are generally inaccessible to the media, and can take an expert several hours to fully digest, let alone a journalist with a tight deadline and no legal training.[31] Even with a law degree the job of covering one or more decisions of the High Court for an hourly news bulletin or the morning paper can be a herculean task.
The inaccessible nature of the work of the High Court has several negative consequences. Reporters often fail to convey an accurate or precise account of a High Court decision. There has been inaccurate reporting even where the Court has made an attempt to explain a decision to the public. To take a small but important example, at the handing down of its recent decision in the Patrick Stevedores case, journalists were clustered in the Court and outside, and the major networks and the ABC had set up satellite feeds to go live to television and radio with the result. Inside the Court, Chief Justice Brennan, who presided from 1995 to 1998, read out a short statement, which was available to the media and the public.
The statement explained the effect of the orders and went on to outline that the appeal had been allowed in part and how the various paragraphs of the order made by Justice North of the Federal Court were to be altered. Despite this, the media was left in disarray, with few journalists having any understanding of the majority ruling, let alone any appreciation of the altered position of the administrator at the centre of the dispute. The media was able to report which side had won, but little else. Even the alignment of the bench was misconstrued, with two reputable news outlets incorrectly reporting the decision as a 5:2, rather than 6:1, decision in favour of the Maritime Union.
The inaccessibility of High Court decisions means that journalists sometimes place too much reliance upon commentators. Commentators are an appropriate source of guidance and information for journalists. However, they are used too often to merely state what the High Court has decided, as opposed to expressing an opinion on the strength of the reasoning in the case or its likely impact. It is not unusual for a commentator to be allowed to both place his or her version of a decision before the public, and then to comment on it. As a consequence, the focus can shift from the decision of the Court to a commentator's interpretation of the decision, leaving the decision and the perspective of the commentator interwoven. This is particularly problematic if a commentator does not clearly distinguish between fact and opinion. Over-reliance upon commentators occurs because many journalists view decisions of the High Court as if they were the pronouncements of the oracle at Delphi; authoritative, but so obscure and elusive as to require the aid of an interpreter. This holds great dangers for the High Court, which can find its decision misreported due to a commentator's error or misinterpretation, or perhaps even dissatisfaction with the decision itself.
The inaccessibility of a High Court decision can also allow manipulation of the facts for political ends. Where journalists cannot find "independent" commentators, they may turn to interested parties for clarification of a decision and, without understanding what the High Court has decided, uncritically accept such statements. This occurred after the handing down of the Wik case, where the decision was misrepresented, and remains largely misunderstood, in part because of the capture of journalists covering the case by interested parties. It continued to occur when journalists reported comments that, as a result of the decision, native title might put freehold title at risk.[32]
A central challenge now facing the High Court is to reconcile its very public work with the lack of community and media understanding of its role and processes. Some judges of the High Court have been willing to communicate with the public through the media. Justice Michael Kirby is an obvious example,[33] as are former Chief Justices Mason and Brennan, who gave interviews to "Four Corners" and "The Law Report",[34] and "Lateline" respectively. The recent documentary by Daryl Dellora entitled "The Highest Court"[35] is also an excellent example of the Brennan Court opening up its processes and decision making to the public.
However, the Court should go much further and develop a media strategy based upon a partnership with the media that seeks to provide factual information about decisions of the Court to the public. Linda Greenhouse, Supreme Court correspondent for The New York Times, has argued that, despite the fact that the interests of the media and the Supreme Court "can never be entirely congruent"[36]--the media's interest in accessibility of information being at odds with the Court's need to protect the integrity of its decisional process--"I am naive enough...to think of these two institutions as, to some degree, partners in a mutual democratic enterprise to which both must acknowledge responsibility."[37]
A media strategy should be developed by the Court in consultation with members of the media and other interested parties. It should deal with the range of issues relevant to the provision of accurate information to the public by the media.[38] For example, the Court might consider lockups for journalists when one or more particularly important or lengthy cases is to be handed down on the same day.[39] This would allow journalists the time to read and understand a decision before filing a report. The Court should also consider the televising of its proceedings.[40] It was notable that, while the decisions of the Federal Court at first instance[41] and on appeal[42] in the litigation arising out of the recent waterfront dispute were televised, the outcome in the High Court[43] was not. No great dangers lurk for the High Court in the use of television cameras in the courtroom, nor is it likely that High Court Cable would attract a large following.
Three changes should form the core of the Court's media strategy. First, the Court should appoint a public information officer,[44] responsible to the Chief Justice,[45] who would, according to Sir Anthony Mason, "serve a useful purpose by keeping the media informed of important cases, by giving the media a court perspective on issues as they arise and explaining the reasons for decisions".[46] A like appointment has been made by the Federal Court and several State Supreme Courts,[47] as well as by comparable courts in other nations, such as the United States Supreme Court.[48] The appointment of a public information officer is overdue at the High Court, which has suffered more in recent times than many other bodies from a misinformed press and public. The need for a such a position at the High Court is also reinforced by the fact that the Federal Attorney-General can no longer be expected to leap to the Court's defence against unwarranted criticism.[49] A public information officer would lessen the pressure upon the judges of the Court to engage in public debate about a decision, a course that could damage the standing and impartiality of the Court. On the other hand, as encouraged by the Federal Attorney-General,[50] judges of the Court should feel able to appear in the media to discuss general matters such as the role of the Court, judicial independence or the rule of law.[51]
This suggestion has obvious budgetary implications for the High Court. It would be difficult for the Court to cater for the position out of its existing resources, which are so stretched that the Court is currently unable to open on weekends for visitors. Accordingly, the extra costs incurred should be met by increased government funding. A strong case can be made out for this based upon the changed role of the Attorney-General and the need to improve civics education in this area. Such funding would reflect the money already spent on bodies such as the Parliamentary Education Office.
Secondly, the Court should reform how it communicates its findings. The Court currently writes only for a legal audience, and makes little effort to deliver its judgments in a form that is accessible to the wider community. In handing down its reasons, there is little justification for the repetition of the facts in several separate judgments. This is a frequent occurrence. For example, in Nicholas v The Queen,[52] a 1998 case involving the separation of judicial power and the criminal justice system, the seven members of the Court delivered seven separate judgments, each of which separately recited the facts of the case. The Court should also consider making a greater effort to produce joint judgments. In the Wik case, for example, which involved enormous political sensitivity and was handed down just before Christmas 1996, five judgments were delivered, amounting to 204 pages of the Commonwealth Law Reports. The Court did make a small effort to outline the effect of its decision. Buried deep in the decision at the end of his judgment, Toohey J, with the concurrence of the other members of the majority, sought to explain the effect of the majority's reasoning.[53]
Thirdly, the Court should produce plain English summaries of its judgments.[54] The Court took steps in this direction in producing summaries for its decisions in the Tasmanian Dam case[55] and the Patrick Stevedores case. A summary should be short at one to two pages -- no longer than the length of the headnotes currently produced for the judgments of the Court. The summaries should be produced by the public information officer with the assistance of the judge's associates, and then checked by a member of the Court. A summary should be available at the handing down of a judgment and should be in a form that could be reproduced in the daily press,[56] along with appropriate commentary and analysis. This would be a breakthrough for the Court in that it would enable a decision to be more accurately communicated to the public via the media. Concerns about whether such a summary would be seen as having legal force are unfounded. The Court already participates in the production of authorised headnotes to its decisions when they are reported in the Commonwealth Law Reports.
Great challenges face the High Court. It stands the risk that its decisions will continue to be misconstrued and misinterpreted by an Australian public that knows little about it. This has the potential to undermine public confidence in Australia's justice system and the integrity of the Court. To respond to the current environment, in which there is considerable interest in the Court and its role as a law maker and protector of fundamental rights, the High Court must re-examine its relationship with the media. It should appoint a public information officer and hand down its decisions in a form that reporters can understand and communicate to the public. Changed perceptions and understandings of the Court mean that the Court can no longer afford to communicate its work solely to the legal profession. It must speak to the wider community.
I owe thanks to Geraldine Chin for her research assistance and to Emma Armson for her comments on an earlier draft.
[1] Civics Expert Group, Whereas the People: Civics and Citizenship Education (1994) at 133.
[2] Ibid. at 133. See also the survey statistics reproduced in Black, "Letting the Public Know--the Educative Role of the Courts" (1994) 1 Canberra Law Review 165 at 166-167.
[3] (1948) 76 CLR 1.
[4] [1951] HCA 5; (1951) 83 CLR 1.
[6] [1998] HCA 22; (1998) 152 ALR 540.
[7] [1998] HCA 30; (1998) 153 ALR 643.
[8] Commonwealth v Bank of NSW [1949] HCA 47; (1949) 79 CLR 497 at 639.
[9] Galligan, B., Politics of the High Court (1987) at 40 where it is stated "[l]egalism has enabled the dignity and independence of the law to be maintained while allowing the Australian High Court to perform a delicate political function in a society that has been divided over important aspects of political ideology and political economy."
[10] (1951) 85 CLR xi at xiv. cf Sir Gerard Brennan, "A Critique of Criticism" [1993] MonashULawRw 9; (1993) 19 Monash University Law Review 213 at 213 where it is stated "[t]he rhetoric based on strict and complete legalism masked the truth of the judicial method."
[11] Gageler, S., "Foundations of Australian Federalism and the Role of Judicial Review" (1987) 17 Federal Law Review 162 at 176; Zines, L., The High Court and the Constitution, 4th edn. (1997) at 424-426.
[12] Zines, L., The High Court and the Constitution, 4th edn. (1997) at 429-430.
[13] [1947] HCA 26; (1947) 74 CLR 31 at 82.
[14] Attorney-General (Cth); Ex parte McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 17 per Barwick CJ.
[15] Zines, L., The High Court and the Constitution, 4th ed (1997) at 430-432.
[16] According to Sir Anthony Mason, "The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience" [1986] FedLawRw 1; (1986) 16 Federal Law Review 1 at 5: "...it is impossible to interpret any instrument, let alone a constitution, divorced from values. To the extent they are taken into account, they should be acknowledged and should be accepted community values rather than mere personal values. The ever present danger is that `strict and complete legalism' will be a cloak for undisclosed and unidentified policy values." See also Sturgess and Chubb, Judging the World: Law and Politics in the World's Leading Courts (1988) at 345.
[17] See, for example, Sir Anthony Mason, "The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience" [1986] FedLawRw 1; (1986) 16 Federal Law Review 1; Sir Anthony Mason., "Should the High Court Consider Policy Implications when Making Judicial Decisions?" (1998) 57 Australian Journal of Public Administration 77.
[18] Mabo v Queensland [No.2] (1992) 175 CLR 1.
[19] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211.
[20] Lord Reid, "The Judge as Law Maker" (1972) 12 Journal of the Society of Public Teachers of Law 22 at 22.
[21] McHugh, M., "The Law-making Function of the Judicial Process" (1988) 62 Australian Law Journal 15 (part I); 116 (part II) at 116 lists four situations in which judges commonly make law.
[23] See note 19 supra.
[24] Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455.
[25] Polyukhovich v Commonwealth (War Crimes Act Case) [1991] HCA 32; (1991) 172 CLR 501.
[26] See, for example, Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1; Kartinyeri v Commonwealth [1998] HCA 22; (1998) 152 ALR 540.
[27] Quoted in Kirby, M., "Attacks on Judges--A Universal Phenomenon" (1998) 72 Australian Law Journal 599 at 601.
[28] See n. 16 supra.
[29] Several judges of the High Court have now accepted such a doctrine. For example, Deane J argued in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 171 that the "present legitimacy of the Constitution ... lies exclusively in the original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people", while in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 230 McHugh J found that: "Since the passing of the Australia Act (UK) in 1986, notwithstanding some considerable theoretical difficulties, the political and legal sovereignty of Australia now resides in the people of Australia." See Kirby, M, "Deakin: Popular Sovereignty and the True Foundation of the Australian Constitution" [1996] DeakinLawRw 10; (1996) 3 Deakin Law Review 129 at 143 where it is stated "[i]f the Australian people, and not the notional legality traced back to an Imperial statute, are the ultimate source of constitutional authority in Australia, may it not be the duty of the courts in their mode of reasoning to be more accessible to the people?"
[30] Http://www.hcourt.gov.au/. This site even contains a "virtual tour" of the Court.
[31] The High Court is not alone in this regard. Linda Greenhouse, "Telling the Court's Story: Justice and Journalism at the Supreme Court" (1996) 105 Yale Law Journal 1537 at 1559 has said of the United States Supreme Court: "I see a Court that is quite blithely oblivious to the needs of those who convey its work to the outside world, and a press corps that is often groping along in the dark, trying to make sense out of the shadows on the cave wall."
[32] In Fejo v Northern Territory [1998] HCA 58; (1998) 156 ALR 721, the High Court confirmed that this was not the case.
[33] See Kirby, M., The Judges (Boyer Lectures, 1983) at 78. However, Justice Kirby has also expressed deep concern about the standard of media reporting of court matters. See Kirby, M., "Judiciary, Media and Government" (1993) 3 Journal of Judicial Administration 63 at 70-71.
[34] This is reproduced in Lobez, S., "Interview with Chief Justice Sir Anthony Mason" (1994) 89 Victorian Bar News 44.
[35] Ronin Films, 1998.
[36] Greenhouse, L., "Telling the Court's Story: Justice and Journalism at the Supreme Court" (1996) 105 Yale Law Journal 1537 at 1539.
[37] Ibid. at 1561.
[38] See the list of suggested mechanisms to improve communication between the courts and the media in Nicholson, A., "The Courts, the Media and the Community" (1995) 5 Journal of Judicial Administration 5 at 15-16.
[39] See Sir Daryl Dawson, "Judges and the Media" [1987] UNSWLawJl 3; (1987) 10 University of New South Wales Law Journal 17 at 25. Cf. Austin, R.P., "Occasional Address to Graduation Ceremony (Postgraduate Law)", 2 May 1998, University of Sydney, at 9.
[40] This has been supported by Sir Ninian Stephen, "Address on the Occasion of the President's Luncheon", Law Institute of Victoria, 19 August 1998, at 10, 12-14. Cf. Sir Daryl Dawson, "Judges and the Media" [1987] UNSWLawJl 3; (1987) 10 University of New South Wales Law Journal 17 at 25-26.
[41] Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 153 ALR 602.
[42] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 626.
[43] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 153 ALR 643.
[44] This has been supported by Austin, R.P., "Occasional Address to Graduation Ceremony (Postgraduate Law)", 2 May 1998, University of Sydney, at 10; Sir Anthony Mason, "The Courts as Community Institutions" (1998) 9 Public Law Review 83 at 87-88.
[45] Robertson, "Media and judges in Queensland: Time for Change?" (1997) 17 Proctor 7 at 8.
[46] Sir Anthony Mason, "The Courts as Community Institutions" (1998) 9 Public Law Review 83 at 87.
[47] Black, "Letting the Public Know--the Educative Role of the Courts" (1994) 1 Canberra Law Review 165 at 170; Nicholson, "The Courts, the Media and the Community" (1995) 5 Journal of Judicial Administration 5 at 9-10. See Evans, "Aiding and Abetting: Prue Innes Helps Judges and the Media" (1994) 68 Law Institute Journal 806 on the appointment of a Courts Information Officer in Victoria, and McColl, "Chief Justice Murray Gleeson AO--`Reasonably Calm'" Bar News, Autumn / Winter 1994, 11 at 11-12 on the appointment of a Public Information Officer in New South Wales.
[48] See Ginsburg, "Communicating and Commenting on the Court's Work" (1995) 83 Georgetown Law Journal 2119 at 2122.
[49] Williams, D, "Judicial Independence" (1998) 36(3) Law Society Journal 50. Cf. Sir Gerard Brennan, "The State of the Judicature" (1998) 72 Australian Law Journal 33 at 41-42.
[50] Williams, D, "Judicial Independence and the High Court" (1998) 27 Western Australian Law Review 140 at 150-151.
[51] Sir Anthony Mason, "The Australian Judiciary in the 1990s" Bar News, Autumn/Winter 1994, 7 at 9-10; Lord Taylor of Gosforth, "The Independence of the Judiciary in a Democracy" (1995) 4 Asia Pacific Law Review 1 at 10-11. Cf. Sir Daryl Dawson, "Judges and the Media" [1987] UNSWLawJl 3; (1987) 10 University of New South Wales Law Journal 17.
[52] [1998] HCA 9; (1998) 151 ALR 312.
[53] Wik Peoples v Queensland (1996) 187 CLR 1 at 132-133.
[54] This or a like idea has been supported by Austin, R.P., "Occasional Address to Graduation Ceremony (Postgraduate Law)", 2 May 1998, University of Sydney, at 10; Sir Ninian Stephen, "Address on the Occasion of the President's Luncheon", Law Institute of Victoria, 19 August 1998, at 10-12.
[55] Commonwealth v Tasmania (1983) 158 CLR 1 at 58-59. See Sir Daryl Dawson, "Judges and the Media" [1987] UNSWLawJl 3; (1987) 10 University of New South Wales Law Journal 17 at 24.
[56] Cf. Sir Gerard Brennan, "The Third Branch and the Fourth Estate", second lecture in the series "Broadcasting, Society and the Law", Faculty of Law, Radio Telefís Éireann, University College Dublin, 22 April 1997, who argues that: "The media would abandon their responsibility if they were to publish uncritically summaries of cases or other media releases issued with the authority of the courts. The media must themselves probe and analyse the reasons for judgments of public importance ... If the courts were to furnish digests of information for the media to publish, they would abandon the independence which both must assert and defend in the public interest."
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