McClelland, Robert --- "In Defence of the Administration of Justice: Where is the Attorney-General?" [1999] UTSLawRw 15; (1999) 1 University of Technology Sydney Law Review 118

Panel Discussion

Susannah Lobez[1], Professor Denis Pearce[2], Alan Rose AO[3], Margo Kingston[4] and Bernard Lane[5]

PROFESSOR PEARCE: Back in the 1920s an English judge called Lord Tomlin described the relationship between legal academics and the judges with a couplet which went like this: "for the dons are so hard on the judges and the judges so rude to the dons". Now when I forded the stream coming from the legal world to the Press Council I found, rather to my astonishment, that that couplet could have been entirely rewritten: "that the press are so hard on the judges and the judges so rude to the press," because my impression has been that there is a considerable gulf between the two parties. In fact I was astonished at how much it was so and that does really stem, I think, from a want of understanding from each side as to the way in which the other works.

With the press my impression is that it is not just with journalists. The people I deal with on the Press Council are very senior members of the press and they are just as suspicious of judges as the hard working journalists. I think that they don't fully understand the way in which judges work. There is a lack of understanding of the intellectual demands that are made on judges. There is a lack of understanding of the complexity of the issues that judges deal with and there is a lack of understanding of the way in which courts and judges function.

It is not only Chief Justice Doyle's notion that everybody thinks that they ponce around in red robes all the time, but I had a considerable job persuading the Council not to write to the Chief Justice this year, telling him to bring his boys and girls into line on something they were ruling on. The view was quite clearly held that a Chief Justice was something akin to a secretary of a department or a CEO of an organization and he only needed to take the chaps and chapesses aside and straighten them out and everything would change.

On the other hand, I see a very substantial lack of understanding on the parts of judges and lawyers--I don't think it should be limited to the press castigating judges--on the constraints that are imposed on the press. I want to throw into the pot the issues that I have noted in the year that I have been Chair of the Press Council. They have all tended to stem from the fact that we are no longer really a state-based press in Australia.

Access through the internet and the movement of people interstate have really made the press an Australia-wide publication. The effect of that, I think, has been that there is now an increased need for, what I would term, commonality in the approach of the courts. That is reflected in a number of ways. First of all, simply in the content of the law. I think that there is a want of understanding on the part of the courts that what they are pronouncing upon in one State has to be the same in another State. It is no good the judges condemning a newspaper thinking that they are only condemning it in South Australia because they are equally condemning its publication in Queensland. They have to be aware of the circumstances there as much as in the State in which they are operating.

The press clearly has a worry about equal application of the law. David Flint has referred to some examples of contempt and the press thinks, with some reason, that it is singled out in contempt cases. The press thinks that the sort of conduct that attracts condemnation from one person will be allowed to pass by but not when it comes from the press. The courts have got to contend with this worry and make sure that they are dealing with the press in an even-handed way.

The issue that comes up all the time is a general concern about uncertainty. The press sees it in relation to issues of defamation, in relation to issues of contempt, in relation to non-publication orders. The press, as I read it, wants to comply with the law but it does not have a clear knowledge of what that law is. It cannot be certain that the same principles will be applied to the same law by different courts. I think that's a major concern that the courts have to grapple with if they are to establish a working relationship with the press. If the press continues to run into these sorts of problems then the effect will be that they won't publish. They won't be bold enough to publish and that will be bad for the courts and that will be bad for the community.

ALAN ROSE: These issues are long standing. The defamation issue, contempt, in fact those reports of the Australian Law Reform Commission and some State reform commissions are still waiting for treatment. That in itself is an indication of the difficulties legislators, the media and of course politicians who have got any interest in this matter face in dealing with the problem.

Most of the possible solutions are there on the table, but at the end of the day, it comes down to whether one can get the numbers and convince enough opinion at the time that a particular change should be made. There have been many ad hoc and worthwhile changes but I agree that what is now staring us in the face is the need for leadership on an Australia-wide basis to produce common standards of two kinds, not just in dealing with the media. But we are in danger of forgetting that the media is only an intermediary in communicating with the community.

Many of the changes that are taking place in our courts have distinct possibilities of excluding the public. I agree with the need for active communication, actively seeking out the opportunity to communicate from the courts and possibly the suggestion for a Commonwealth judicial commission. At least from the communication and education perspective, because we are one market, and there is a need for a common approach. It is a leadership responsibility which the Chief Justices in each of our jurisdictions carry, but they don't seem to be acting in concert as seen from the perspective of the public.

I will finish by referring again to the public. Many of the very worthwhile changes that have been made in the way that our courts operate, certainly as seen from the Law Reform Commission's perspective and from litigants' perspectives and the profession's perspective, have the real potential to further exclude the public.

Far more of our business now is being done, effectively, behind closed doors. Our case management systems are ensuring that much, quite sensibly in terms of eliminating delay and reducing costs in getting to the nub of the legal problem more quickly, are being done electronically in private conference. They are not being done in a public court. Many of our trials, when they do take place in court, are cryptic to say the least. There are communications between those practitioners and judges who have spent months before the trial filing down the issues so that they can be communicated in almost monosyllabic terms during a trial--reference to documents, reference to exhibits. None of this, as it would have a couple of decades ago, now comes out publicly in the court itself.

There is a way to deal with this. Most of our courts are, at this stage, going through a technological revolution. Many of the new processes, whether they are at the filing level, reducing appeal books and so forth, are now on the track to becoming fully electronic.

Young people in our community and many others of various age groups have mastered the electronic communication medium. The internet and many of the other public broadcast electronic media are capable of taking that electronic content and allowing its access across a much wider group in the community. So I come to the point that we are losing the public because the public is being increasingly locked out of courts.

We have the vehicle through new technology to bring them back to the courts but whether it is that technological development or whether it is any one of the other initiatives, it does require something of the courts which they are not particularly, from a historical background, comfortable with. And that is a corporately managed, strategically presented approach to public communication which embraces the media as one of the intermediaries but, most particularly, takes on an active communication process. This is appropriate to the particular role and responsibilities of the courts as a third arm of government, and one which can't be ignored.

That means leadership, and the Chief Justices of our courts, whether they form into a judicial commission or any other body, must necessarily act in concert because it is international in a sense. That is, the court system here, like any other part of government, is part of projecting Australia as a system of government and as an active economy.

To date I don't think we have had leadership at that level. Internationally, we have seen at the Law Reform Commission a highly valuable economic product that Australia sits at the front of. We are about as good as you get, not just in this region, but internationally, and we are not in a position to communicate that strength effectively at the moment.

It is the judges, particularly the leadership of those judges, who must get into the market, not only for ideas, but if I can use a rather crass word, for their business, because Australia has an important place for that business now and in the immediate future.

SUSANNAH LOBEZ: I think that we can't beat around the bush--we need to discuss what is required on behalf of the media, what the needs of the practising journalists are, what difficulties do they have with the judiciary and what concerns the Attorney-General and some of the judges about the press and the media.

MARGO KINGSTON: I would like to take up the really interesting question that the media-court relationship is an aspect of a broader, and I think a much more important, requirement that society needs to understand itself. It needs to understand its own institutions.

I followed the Pauline Hanson campaign in the federal election and the One Nation party family policy document proposed that because family law wasn't working extremely well, the Family Court and family law should be abolished and the people in your street should decide on instinct what would happen to your marriage, your children and your property. I had this vision of Madame Defarge dropping another stitch as another marital head rolled from the guillotine. I found it quite shocking that many people have so much ignorance that the rule of law is their fundamental protection when a society is going wrong. Of course, later in the campaign we had our own troubles with One Nation and it seems to me a lot of people wanted to sack the judges and arrest the journalists, so I think that is a very big problem that all of our institutions have at the moment. A lot of factors are involved.

I favour the Michael Wooldridge analysis that modern western states are dividing into a policy culture and a community culture, where the community doesn't really understand what we in the policy culture are doing any more and distrusts us and doesn't think any more that we are working for them.

I also believe John Ralston Saul's view that when things go terribly wrong, as they have in this country recently with the rise of One Nation, then blame the elites, don't blame the peasants. Obviously that raises a lot of questions in this particular area. It is all very well to talk about judicial commissions for the judiciary, but where is the accountability of the media?

To my mind the institutions involved in the power structure, the Parliament, the executive, the judiciary and the media, have got a lot of work to do to restore their credibility. The way you do that is by taking your ethics and obligations seriously.

In the media we always carry on about how we have got a democratic right to speak on behalf of the people. But in most cases we are working for people who just want to make a profit and it is a very self serving argument. To get down to the narrow stuff of the courts and the media, of course the courts have got to accommodate us but we have to be a messenger of worth to the people. We have got to tell the truth to the people. Of course, in a self regulation sense we can't have the courts or the government interfering with the media.

We have the Press Council. Parliament has its little contempt committees and the judges, well, they don't seem to have anything really except they judge all of us. But what I would like to see is the Press Council taking a big lead in this and setting up some strict separate division to handle complaints about legal stories. It should publish information to journalists about judgments that it has made against journalists.

I would like to go even further than that. I know we all have to go to these two week sessions, every journalist, which is an in-depth seminar on what the law is and how it works and what rules we have to obey. I think that should be expanded to an industry-wide practice, almost an industry self regulation, that reporters do not report the courts unless they have training so that they cannot make mistakes. I think that is vital and, of course, that would involve some of the big companies subsidising some of the small regional newspapers who have not got those facilities and this is where the courts could get tricky.

Why should the courts go out of their way to look after us if we are not taking our responsibilities seriously, not to reveal identity, not to prejudge and all that sort of thing?

The other thing I think the media has got to do, especially the big media organizations, is to stop saying, "I am sorry, it was pressure of time, we did not know the law". That's just not on. We need big fines for those big cases when, for example, talk show hosts talk about previous convictions in the middle of a trial. It has to be made crystal clear to the media that they have their responsibilities too.

In that way we can help each other. Maybe we can lift some credibility and we can start stabilizing the enormous dissatisfaction that there seems to be in many parts of Australia about how we are operating and whether we are doing our jobs properly.

BERNARD LANE: I thought I could illustrate a few ways in which the coverage could be improved if there could be reforms in relations between the courts and the media. Some have been touched on.

One is trying to represent more of the facets of individual cases that attract a lot of public interest, for example the Kruger case or the so-called Stolen Generations Case before the High Court. This was often reported as if it was nothing more than a moral struggle about the removal of Aboriginal children but there were other aspects to it. If these sorts of reforms in relation to the courts and the media do continue, it may be that the media can communicate more of those aspects to do with the wider significance of that case for constitutional rights.

A related aspect is getting a better balance between the outcome of a case and the reasoning that led to it, conceding of course that it is usually the first thing of interest to the media and perhaps to the general public to know the immediate impact. There is a need to get a better balance between presenting the sometimes colourful personal aspects of a case, with the general rule that emerges from the case which may ultimately have much wider significance.

Perhaps some of the reforms proposed will help the media strike a better balance. It is something that we can be optimistic about, given all the pressures, as long as these sorts of reforms do continue.

Questions and comments from the floor

PATRICK KEYZER: I have two points. There was some consideration given to the creation of a Commonwealth judicial commission. There is already an organization called the Council of Chief Justices of Australia and New Zealand. That is the only organization of judges with the power to develop enforceable policies in this area. Perhaps it could authorize the creation of a commission.

The second point that I would like to make is this: it is incorrect to say that the courts are not dependent on any group or body in society, least of all the executive government. The courts are funded by the executive and the executive has an obligation to ensure that there is adequate funding of the courts so that they can inform the media about their work.

SUSANNAH LOBEZ: I can't see any way that is going to happen. There is no money around so you have got to find more interesting ways to do it than throw money at it. In the current terminology of the government, I just can't see it. I mean, if you have got an absolute crisis in the Family Court with children not being represented and people not being represented, how can you possibly justify 50 or 60 grand to employ a PR officer?

PATRICK KEYZER: I would support extra funding for that as well: it is a small price to pay to improve community understanding of the courts.

CHRIS MERRITT: I don't think the issue is quite one of money, although that is important. The point that has been made by a number of people which I think is absolutely on point comes to this--leadership--and the bringing of that leadership to bear at the top end of the media. We have had lots of discussion about, if I can put it simply, the workings at the journalist level but where I think it needs to be brought to bear much more importantly on a sustained basis, quite apart from public communication, is in the area of editorial management and proprietors. That is where there is no, as I at least see it, common understanding of media accountability.

It is at that point where I think Chief Justice's committees, commissions, and the current Council of Chief Justices have an opinion. That's right across the media. It's not just print or electronic, it is all aspects of the media, national and regional, that there should be an understanding of the courts and the importance of the roles that both the courts and the intermediary, that is the media, play with respect to the understanding of the court's role in government and the importance of individual cases all the way down. I don't see that leadership taking place.

SUSANNAH LOBEZ: Margo Kingston made a point about who was going to do this job of educating the journalists about what they can and can't do and looking for certainty. I know that in South Australia, I think it's a document currently being worked on, there is a booklet, a handbook for journalists who are going to be doing court coverage. Now if that were to be expanded and a federal version available, or indeed seven separate versions, I'm sure there would be people in this room who could produce a booklet like that. That might be something that would be the standard and I suppose then it comes down to people like Denis Pearce of the Press Council to actually make sure it is enforced.

WENDY BACON: I think the courts have done a remarkably poor job in setting down the ground rules for journalists. You only have to look at the Lange case and the uncertainty that the journalists are left with about what might be "reasonable conduct" for a journalist reporting politics.

I have just recently had a student who has interviewed 18 fairly senior media lawyers, all of whom have made the same point. So that is not just anecdotal. I spend time contemplating with my journalism students about what might be a public interest case in 1998 that would override, that would prove a defence in, a contempt of court case. All I can do is to go back to a comment Michael McHugh made in a case that I was once involved in the New South Wales Supreme Court. I think it's quite pathetic the lack of spelling out by the courts about what some of these concepts like "public interest" and "reasonableness" might mean. I have my own view as to why it is so superficial but journalists are left with very few solid ground rules.

DENIS PEARCE: I think this is a concern of the Press Council. We are acting as a "feeder" from various quarters. But the important point I think to bear in mind in this is that it is all very well for courts to lay down general standards but the journalist has to operate within such a tight confine that you cannot go off and get advice from a leading lawyer as to what the nuances of Lange or one of the other cases might be. Journalists have to be able to deal with these issues on the spot. The complexity of the judgments shouldn't operate as a barrier to publication.

SIMON RICE: If the media does what it is supposed to do correctly and the courts, as Chief Justice Doyle called for, take part actively and reach out, I think the Attorney's point or question at the beginning identifies the divide that exists even then, which has to be accepted. That is the question of accountability.

No matter how hard and how well the courts do it, no matter how responsibly the media acts, isn't it the case that the media doesn't have the responsibility to serve the democratic cause that Justice Doyle called for? But really, the media will cut, they will edit, they will present in accordance with requirements of news presentation, entertainment and of the proprietor. It is difficult to see the media ever acknowledging an obligation to fulfil the agendas of the courts.

It seems to me that we are asking for the media proprietors to act in that way is contrary to the whole move we have towards destabilizing social relations and stripping away corporate responsibility for democratic processes. It is inconsistent. Acting at their best, the divide is there and the courts, I think, need to be smarter about what they can expect from the media and acknowledge that at the end of the day, the way it is presented is the media's call and not theirs.

DENIS PEARCE: I think one of the difficulties, and it hovers over the entire question of relations with the courts or media, is that we live in such volatile times and it is less and less clear what an ordinary person knows, assumes or expects from an institution. There has been talk of the way in which there is pressure on the traditional concept of judicial independence, to try and reconcile it without losing something essential to greater pressure on the resources and courts or to a demand for accountability.

There is a similar problem for the media in that there is an attempt to discover whether you can have what used to be called public interest journalism, serious or quality journalism, in an atmosphere where there is tremendous commercial pressure and technological change.

Behind the difficulty of both the courts and the media is this ultimate question of what the ordinary people know, expect and believe. Are they merely cynical and indifferent, or do they have what used to be the traditional value assumptions and expectations? To what degree have those been modified? So the question of how optimistic or pessimistic to be about relations between the courts and the media proposals for reform is a very difficult question to answer.

CHIEF JUSTICE DOYLE: I agree with Simon Rice. I don't think it is the media's job to do our job. I think we have to learn to work with the media. But I also think we are entitled to talk to the media about what we think is good reporting. I don't think it is good reporting to report a sentencing decision quite inadequately in the sense of saying nothing about why the judge did it. I think that is just bad reporting. So I think we have to learn to work with the media and understand its constraints but I don't think it is always engaging in what I call "good journalism". That is the most we can ask of the media.

One other point: I think to some extent the media calls in as aid at times the fact that they are exercising democratic rights, if you like. So if it is going to call those rights in aid, I think it might have to accept some responsibilities going beyond profit making.

SUSANNAH LOBEZ: One way of doing it is to get your spouse or child under another name to complain to the Press Council because the press has a responsibility to give the reasons. Otherwise, you are just throwing out the facts. I would be pretty confident that the Press Council would make quite strong rulings on that.

The thing about the Press Council is that it is wonderful for us, it is nice and cosy, but it is not the best it could be and I think a lot of people are trying to develop it. But if you get an adverse finding, it is published in the paper. I can't see any reason why that couldn't be exercised in the normal way in regards to legal reporting and get results.

DENIS PEARCE: I have close experience of that. Yes, we are there and we do get complaints. We receive complaints from any member of the community and that is often overlooked. People do think they have to be the person who is affected to complain. But you don't--we accept third party complaints. We do insist on a degree of, and I think it is right to say a degree of, accuracy. It's accuracy that is appropriate to the form of writing and the particular item that is under consideration.

SUSANNAH LOBEZ: Would you consider the reasons for the decision to be an essential part of the story in sentencing?

DENIS PEARCE: Absolutely. I think that the material has to be properly presented.

SUSANNAH LOBEZ: I would just like to make the comment in relation to those remarks made by Chief Justice Doyle and Simon Rice that it seems to me that for a long time, members of the community, whether or not the courts are acknowledged as part of their democratic process, see themselves as consumers of legal services. They are consumers of what the judge hands out and like it or not, they can say what they think and often do.

However, when it comes to the media, although those same citizens, those same members of the public are consumers of media services, perhaps we might not find that when they make their complaints, they are the same complaints that lawyers and judges would make. In other words, "you told us too much of the sexy, interesting detail about that particular defendant". I don't know that the public are going to actually, as consumers, make those kind of demands.

I think it is incumbent upon the media to explain to people why it is important, for instance, that fairness is an essential part of a criminal trial.

---

[1] "The Law Report", ABC Radio; Session 1 Panel Chair.

[2] Professor; Chairman, Australian Press Council.

[3] President, Australian Law Reform Commission.

[4] Law correspondent, The Sydney Morning Herald.

[5] Law correspondent, The Australian.