Teague, Bernard --- "Access to the Courts and its implications" [1999] UTSLawRw 14; (1999) 1 University of Technology Sydney Law Review 112

The Courts and the Media: What Reforms are Needed and Why?

Chris Merritt
Law Correspondent,
The Australian Financial Review

Firstly, I want to start with a warning: what follows is likely to be very depressing. So let's get the worst part out of the way: it is becoming increasingly clear that the judiciary has an image problem.

Some would go so far as to call it a public relations disaster. This is not a criticism of the very effective information officers who now operate in many superior courts. They do a terrific job.

But an unfortunate collection of issues has arisen in the last year that is doing the image of the judiciary no good at all.

If the public were to be called upon right now to express an opinion about the judiciary based on nothing more than what they have read, seen or heard in the news media, I feel sure that most judges would be pretty disappointed with the outcome.

Now before the judges get too annoyed, let me make it clear that at least some of the causes of this problem are beyond the control of information officers and the judges themselves. Later in this paper it should become fairly obvious which issues I believe are harming the standing of the judiciary. I also propose to put forward a few suggestions on what can be done to fix the problem.

But before getting into that I want to dispose of a distraction from the main argument.

There are those in the legal profession generally and even in the judiciary who may think that the blame for the erosion in the public standing of the judiciary can be sheeted home to biased journalists. This point of view has a superficial logic, starting with the cultural gulf that exists between the courts and the media. It is more than a cultural gulf, it is a cultural Grand Canyon.

Chauvinists in both callings--and there is no shortage of them--make a virtue of their refusal to see the other side's point of view. The law reports are packed with the views of judges who see the media as something akin to oxen who need to be firmly controlled. And sometimes it does appear that some journalists put on blinkers whenever they deal with lawyers generally and judges in particular. Whole careers have been built on lawyer bashing.

So why is it that journalists write such nasty things about judges and the legal system?

To lawyers, the explanation might appear to lie in the way generations of judges have built a legal framework for the Australian media that is increasingly out of step with the countries with which we like to compare ourselves.

On issues that are of fundamental importance to the media, the performance of the judiciary makes it very difficult for journalists to ever be truly fond of the courts.

This should come as no surprise to those who are familiar with the way judges deal with issues such as the right to free speech and the protection of journalists' confidential sources. Under the Mason High Court, it looked for a while as though things might be changing. But that was a false dawn.

While all this makes for a pretty awful starting point for a relationship--and should of course be addressed by the courts--I don't think this is the reason for the judiciary's bad press. On the whole, I think most journalists actually try to give people a fair hearing. If they don't, there is always the risk that their bias will be exposed by an accurate report by one of their competitors. Consequently, I think there are far more substantive reasons for the bad press and the public's poor opinion of the judiciary and the legal system. It is in this area that the need for reform is urgent.

At this point, I think it is important to keep in mind that this gloomy assessment is merely the opinion of a journalist--and we all know what the public thinks about journalists. However in both callings, public opinion does count.

A long term erosion of public respect and credibility should make it impossible for individual practitioners to continue. For the judiciary, there is an added danger. In our system of government, the judiciary is in a perpetual state of dynamic tension with the executive and sometimes with the Parliament. If the courts lose public respect and credibility, there is a risk that the other arms of government will be tempted to expand their constitutional territory--or more accurately, their unconstitutional territory.

And if that happens, the public, not just the judiciary, will eventually feel the adverse impact.

I can think of no better example than the way the New South Wales Government keeps trying to pass laws to keep people in gaol when their sentence has expired. While this sort of behaviour is constitutionally obnoxious, the politicians clearly think they can not only get away with it, but they will be cheered on by the public.

Such an assessment by politicians suggests that they believe the public will see nothing wrong in Parliament attempting to encroach on the judicial function. If this assessment of the public's understanding of the judicial function is accurate, the question arises as to what the judiciary plans to do about it.

Traditionalists would probably argue that the best response is to do nothing. Eventually, so this argument goes, the High Court will strike down such constitutional effrontery and everyone will be happy. The politicians will still be able to ingratiate themselves with the redneck constituency by blaming judicial activism for preventing them doing what should be done. The judiciary will be happy because the threat will be removed.

I don't think that's good enough. On issues such as the separation of powers, the role of the judiciary and the operation of the courts, the voice of the judiciary should regularly be heard. The traditional response is, of course, that judges say all that needs to be said in their judgments. Well, if that were ever correct, I don't think it is these days. Individual judgments are, by definition, a perfectly adequate explanation for the way an individual court behaves in an individual case. But the judiciary is an arm of government and it owes the public a better explanation about the way it operates.

So who should speak for the judiciary on issues that go beyond individual disputes?

Some Chief Justices have begun to reject the taboo about speaking to the press. This is a step in the right direction. Chief Justices Black, Nicholson and Spigelman spring to mind. However, there are limits on what sitting judges can say before they might need to disqualify themselves from some future case.

Federally, the Attorney-General has imposed limits on the circumstances in which he will defend the judiciary. He has nominated the Judicial Conference as the preferred defender of the judiciary.

The Judicial Conference is a fine organization and has provided forums for judges to speak publicly and have arranged sessions with politicians to improve their understanding of the judiciary. But through no fault of its own, the Judicial Conference is poorly equipped to become the spokesperson for the judiciary. As currently structured, it generally refers issues back to the judges, which limits its ability to participate in fast moving public debates.

What about the Law Council? This organization has frequently defended the judiciary. But as the peak national body representing the legal profession, I question whether it is the right body to speak on behalf of an arm of government. Logically, the media is fully justified in seeing any statement issued by the Law Council as being motivated by what is good for the legal profession. This gives rise to a potential problem. For example, when the Law Council talks about legal aid cuts and the importance of a fair trial, there are those in the press who are cynical enough as to construe this as merely a plot in which lawyers are trying to get their hands on more public money. The Law Council's argument might be perfectly valid, but it would be better coming from someone else.

The other way in which the judiciary can sometimes get its point across is through what is fondly known in the media by a number of terms such as the "inspired leak", the "quiet little chat" or the "background briefing". While I would encourage all judges to avail themselves of this technique, I would be less than honest if I failed to point out some of the drawbacks.

While an "off the record" chat is a terrific way of influencing public debate, it usually means that the journalists concerned are unable to reveal the source of the material they publish. That diminishes its authority and means that it can more readily be dismissed as the mere ramblings of a journalist. As a result, on most big issues that have a direct impact on the judiciary, the point of view of the judiciary is either missing, late or it appears obliquely, through the voices of others whose interests are not always exactly in alignment with those of the judges. If this continues, the judiciary will effectively be vacating the field and leaving it to others to set the parameters of debate on these matters.

Public debate will continue, with or without judicial input. But the consequences of such lopsided debates can be alarming. This is best illustrated by a hypothetical example. Let's make a big assumption. Let's assume that a trainee reporter emerges from the now mandatory lectures in media law with his respect for the judiciary intact. This reporter has just been taught some of the basics of defamation law such as how it compares to the United States, how much money Australian judges regularly hand politicians in defamation cases and how the High Court changed its mind on the constitutional importance of free speech.

While such an introduction to a new career might have had an impact on new recruits in the past, our trainee still harbours a deep reservoir of goodwill for the courts dating from what he was taught at the University of Technology, Sydney about the constitutional necessity for a strong and independent judiciary.

Now, let's put this recruit to work.

His first assignment is to review the latest book by Mr Evan Whitton, a winner of multiple Walkley awards and a former editor. Our reporter is instructed to place his review in the context of what has been happening of late in the Australian legal system. He does a library search on his computer and is rattled by what he finds.

In New South Wales he finds that one Supreme Court judge survived an attempted dismissal over late judgments; a retired Supreme Court judge committed suicide when it appeared that his sexual misbehaviour over a lifetime was about to be made public; and a sitting District Court judge had been charged with sexual offences.

Federally, he discovers that the Law Council of Australia wants a Parliamentary inquiry into the behaviour of a High Court judge while he was still at the Bar; and that this same judge--who was close to the National Party--was appointed after the Deputy Prime Minister called for a "capital C conservative on the High Court."

Our reporter also finds that the Allen Consulting Group has produced a report for twelve of the nation's biggest companies warning of an American-style litigation explosion. That report, he notes, covers much the same ground as a series of papers from the Australian Law Reform Commission on the adversarial system of justice.

Armed with this context, our new reporter then reads Mr Whitton's book which attributes much of the ills of the legal system to a conspiracy by lawyers to defeat the search for truth by using nine magic tricks. Being legally educated, our reporter is initially inclined to produce a review that is, shall we say, unfavourable. Some would see this as evidence of the effectiveness of the legal cartel that is referred to in the title of Mr Whitton's book. But our law graduate is now a journalist and has been instructed to follow normal journalistic practice by placing things in context. He asks himself whether Mr Whitton's jaundiced view of lawyers and the legal system really is that unusual. Under the influence of the weight of published material our new recruit tones down his review so that Mr Whitton's book is treated as one more serious contribution to the debate about the future of the legal system.

So who is responsible for this chain of events? Is it the reporter who lacked the fortitude to break away from the orthodoxy, or is it the judiciary whose comparative silence and muted public statements has enabled that orthodoxy to become so orthodox in the first place?

The task confronting the judiciary is to improve its effectiveness in the market for ideas. While the legal profession is well attuned to even the slightest change in judicial nuance, the market for ideas extends far beyond the profession. Occasional speeches by judges and the appointment of information officers are admirable developments. But much more is needed. As an arm of government, I see nothing fundamentally objectionable in creating an institution that would, among other things, put the point of view of the judiciary.

What I have in mind is the creation at a Commonwealth level of an institution based loosely on the New South Wales Judicial Commission, but with the additional responsibility of informing the public about issues affecting the judiciary. If such an institution reported to the Chief Justices of the federal judiciary and were chaired by someone like Sir Anthony Mason, it could become an extremely effective advocate for the judiciary. But it could also do much to neutralize one of the substantive issues that is currently undermining public confidence in the judiciary.

Like its New South Wales equivalent, a federal judicial commission could be given responsibility for assembling conduct divisions made up of other judges to investigate complaints against federal judicial officers. If such a system operated in private, it would be possible to investigate judicial conduct without harming the standing of judges who were ultimately found to be without fault. It would also take at least this part of the process out of the political arena. Parliament would, of course, retain the final say on whether any adverse factual findings against a judge fell within the constitutional grounds for dismissal.

If such a system had been in place a few months ago, the Law Council would never have needed to have sought a Parliamentary inquiry into the conduct of Justice Ian Callinan. The fact gathering and initial assessment could all have been handled in private using the procedures that were recently used in New South Wales concerning Justice Vince Bruce.

Without such a system, the decision on whether to even investigate the facts surrounding this affair fell to the Attorney-General. It would be in the interests not just of the judges, but also the Attorney-General, for such a decision to be removed from the political arena.

In the wake of the fuss over Justice Callinan, a few calls have also begun to be made for a new way of vetting and selecting potential candidates for federal judicial office. While nobody who has seen the full disaster of an American Senate confirmation hearing would ever advocate adopting that system in this country, there is a good case for injecting a great deal more rigour into the process of assessing the background of potential federal judges.

Again, this is a fact-gathering role that could be done in private and would sit comfortably within the scope of a federal judicial commission. But it could just as easily be given to officers of the Attorney-General's Department--so long as somebody did it. The effect of these changes would not be immediate. But over time, they would change the nature of the debate over the judiciary and that, eventually, would have an impact on public opinion.