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Chesterman, Michael --- "Media Prejudice During a Criminal Jury Trial: Stop the Trial, Fine the Media, or Why Not Both" [1999] UTSLawRw 11; (1999) 1 University of Technology Sydney Law Review 71

What the Courts and the Media Can Do To Improve the Standard of Media Reporting of the Work of the Courts

Patrick Keyzer

Senior Lecturer in Law,

University of Technology, Sydney;

Convenor of the Courts and the Media Forum at UTS Law School,

13 November 1998


Fear and loathing

How much of the hysteria which followed the High Court's decision in the Wik case[1] was the consequence of sensational reporting? The headline of The Sydney Morning Herald the following day was "A Judgment For Chaos". The editorial of The Australian Financial Review was entitled "Wik decision disappointing" and commenced with the comment that "[F]armers and miners have every right to be alarmed at yesterday's long-awaited High Court decision in the Wik case."[2] The editorial went on to say that the native title system, "which was already bogged down in complexities" would be thrown "into complete confusion. The system is now as clear as mud". The decision was a "setback" and had created a "mess".[3] A columnist for the Melbourne Herald Sun described Wik as an "utter disaster" which would give rise to "complex litigation" and stall development.[4] Wik would "leave the mining and pastoral industries facing an endless road of litigation to determine in the case of each and every lease whether native title exists and how they might be required to co-exist with it."[5] Headlines shrieked of the "anger", "dismay" and "disappointment" which greeted the "confusing" decision, the "obstacle" it created for Aboriginal reconciliation and resource security, how the decision had put the government in a "tough spot", "turned up the heat" on them and drew them into a "legal and political nightmare".[6]

With a few exceptions, journalists were not responsible for generating the heat in the Wik debate. We need to distinguish between reportage of alarmist or extremist opinions by the media and expression of alarmist or extremist opinions by the media. Stakeholders reacted sharply to the decision and adopted strident and rigid positions: simply reporting the opinions of the stakeholders produced ample drama for a good story. And it might be expected that the stakeholders would express their messages in a way which would maximize their impact. However the press was deficient in shedding light during the Wik debate. While a few journalists reported the mixed reactions to the Wik decision, the large majority of the reporting emphasized the negative reactions to the decision. Overall, there was a lack of balance and depth in the reporting and in the commentary. In that environment, the High Court was a soft target. The strident criticism of the Court left many with the impression that the judgments were not supported by extensive and careful legal reasoning.[7] This helped create an environment in which misinformation could thrive. Facts were swallowed by opinions. Native title claims could and, it was intimated, would, be made over pastoral leases, mining leases, forestry licences, irrigation agreements, the ocean, and even backyards.

When the Wik decision was handed down, the policy of the Chief Justice, Sir Gerard Brennan, was to decline to respond to the criticism.[8] Brennan CJ outlined his perspective on the relationship between the courts and the media in a speech called "The Third Branch and the Fourth Estate".[9] Sir Gerard pointed out that the judicature has no power base but public confidence in its integrity and its competence in performing its functions. But to secure the rule of law, there must be an arbiter whose authority is accepted by the powerful and the weak, the rich and the poor, the government and the governed, the majority and the minority. Yet the public knows little of the functions and methodology of the courts. While it might be tempting to say that the courts and the media share a responsibility to create or maintain confidence in the work of the courts, that would cast the media in the role of apologist for the courts. Ideally, the media should report and analyze the work of the courts. According to Sir Gerard Brennan, the courts must ignore the media lest they be influenced by its views. The courts and the media have interlocking but disparate functions which, if properly performed by both institutions, should produce public confidence in the maintenance of the rule of law by the courts.

Certainly, judges should not be expected to hold news conferences to explain their opinions. They do not have a political message to sell. The maintenance of both the reality and the public's perception of the impartiality and independence of the judicature is a constitutional fundamental.[10] As Sir Frank Kitto warned:

Every judge worthy of the name recognizes that he must take each man's censure; he knows full well as a judge he is born to censure as the sparks fly upwards; but neither in preparing a judgment nor in retrospect may it weigh with him that the harvest he gleans is praise or blame, approval or scorn. He will reply to neither; he will defend himself not at all.[11]

A judge influenced in judgment by what was said in the media "would not be fit to be a judge".[12]

The Power of the Press

The mainstream media is the most prominent producer of news about the courts, and is therefore in a unique and powerful position in respect of its relationship with the courts. People rely on the media for their information about the courts. It is unrealistic to expect people to converge in the public galleries of Australian courts to improve their understanding of the court system.[13] The media has the power to create and to destroy the reputation of the courts. It can enhance or destroy understanding of judgments. It can control the degree of prominence given to public exposure of a court case or decision. It settles the agenda of legal reform and the parameters of discussion of the work of the courts.

But journalists inhabit a different professional and ethical universe to judges. Even experienced lawyers can come to grief attempting to understand some judgments. Pity journalists without legal training attempting to grasp the gist of a 150 page judgment handed down at 10.30 a.m. in time for a 4.00 p.m. deadline, and subject to all the other regrettable vicissitudes of news production.[14] And legal journalism is in a number of critical respects more difficult than other types of journalism. There are no sources, no leaks, no information derived from casual contacts, no off the record briefings and no doorstops.[15] You cannot interview the newsmakers.[16]

Courts have to take account of the significance of the work of the media and the constraints on legal journalists and take steps to facilitate the dissemination of information about their work.[17] As Chris Merritt, legal correspondent for The Australian Financial Review, notes:

...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.[18]

How can the courts help the journalists in ways which do not compromise the public's perception, and the reality, of their independence and impartiality?

Court Media Officers or Court Public Education Officers?

The appointment of court media officers is a welcome development.[19] But their role is extremely delicate. There are real dangers. There is perhaps an inherent danger in having court media officers explain decisions. How can the danger of giving differing emphasis to different parts of a decision be avoided?[20] Would court media officers or public education officers correct misinformation? Poor court reporting by the media? Substandard court reporting by the media?

Caution must be exercised to ensure that a more cosy relationship between the courts and the media does not increase the power of the media to influence judges and judgments[21] or provide the media with information which would not otherwise be shared with the public. Emphasis should be placed on the "public education" function of the court media officer. Certainly, much could be done to enhance appreciation by the general public and journalists of the role of the judiciary in our system of government, the separation of powers, and judicial review.[22]

Court-Produced Headnotes and Judgment Summaries

One task for the court public education officer might be the dissemination to the public of a brief account of the facts and reasons for decision in every case.[23] Recently, several courts have adopted the practice of distributing judgment summaries at the time of judgment delivery.[24] A notable example was the High Court's summary of the orders and effect of those orders in Patricks Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia.[25] Media reports immediately following the decision were mixed, with some reporting the decision as a "win" to the Union, others as a "win" to Patricks. But by the time of the evening television news bulletins, most outlets reported the decision, accurately, as a "win" for neither party,[26] but simply as a faithful application of the policy of the Federal Government, reflected in its industrial laws.

Distribution of a judgment summary at the time of judgment delivery is unusual. Yet, some weeks, months or sometimes years later, when the news value of a judgment has evaporated, a selection of the judgments of superior courts are reported by private publishers headed by a judgment summary which is a brief and effective source of information about the content of that judgment: the headnote. Between the time of judgment delivery and this publication, an editor, typically holding legal qualifications, prepares a brief summary of the facts, the question of law to be decided and the judgment or judgments of the court.

At present, the "headnotes" for some of these publications are returned to the court for authorization. The judges who heard the case then have an opportunity to check the headnote for accuracy. In practice, the judge's associate reviews the headnote before the judge has a final look over it. This can sometimes require a complete re-drafting of the headnote. Then it is returned to the publisher, and the judgment is published as an "authorized" report. The court will then customarily require litigants to use the authorized report of a case where it is available.

What is the purpose of this explanation, other than to demonstrate that this is a complicated, time-consuming rigamarole? It is to ask this: why don't the courts prepare the headnotes for delivery with the judgments? The headnote could then be used by the media to pass on to the public in its reports.

This proposal will not bankrupt the private publishers of law reports. They will still be able to add value to the reporting of judgments by indexing and digesting case reports. The courts have given no credence to fears expressed by the councils on law reporting that electronic dissemination of reports by the courts will threaten the economic viability of the authorized reports. And, after all, we have already paid once for the information produced by the courts.

Publicizing Pleadings and Submissions

Reporting of the work of the courts would also be enhanced if, where appropriate, journalists had access to the pleadings and submissions which precede the hearings and the judgments.[27] Once a public announcement is made that a judgment shall be delivered (generally this announcement is passed to the parties in advance of the public release of a judgment to enable them to appear in court to receive it), journalists could prepare their articles in advance, and they would be better informed on judgment day. Better still, make these documents publicly available on the internet so the public can read them and form its own views.

Ultimately, courts are public places, and they should be subject to media scutiny just as the executive and the legislature are. If publicity is the hallmark of the exercise of judicial power, it might even be a constitutional requirement of our system of government that judgments, and perhaps even the materials which inform our judges, be freely available to the public. Public exposure of court documents might enhance the quality of the submissions, and would certainly increase public awareness not only of the functions of the courts but the people, organizations and polities who participate in the dynamic of the exercise of judicial power.

Judicial Leadership and Media Relations Policy

There are special problems in developing policy to govern court-media relations. First, no court can speak for any other court. Second, no Chief Justice can speak for any individual judge. Judges take an individual oath to the law. And judges have differing views and attitudes in respect of media reporting of their work. Judges are by their nature independent thinkers, many of them are fiercely independent thinkers, and it is unlikely that one single perspective would be shared by judges collectively, let alone a majority of them. Reforms will take place on a court by court and judge by judge basis.

The Commonwealth Attorney-General has proposed that the Judicial Conference of Australia, a judge's "peak body", speak on behalf of the judges. But it cannot.[28] First, the organization of judges which has the actual power to develop policy which can bind the administration of the courts (if not the behaviour of its judges) is the Council of Chief Justices of Australia and New Zealand. The Judicial Conference simply does not have the authority to speak on behalf of the Australian judiciary. Second, even if it did, any suggestion that it respond to criticism of a court or justice of a court places its membership--other judges--in the invidious position of commenting on the work of another judge or court. This is clearly out of the question. Recognizing the problems outlined above, the Council of Chief Justices is the only organization which can develop a media relations policy for the courts. This could be time-consuming.[29]

What is "Judicial Accountability"?

Each of these proposals requires increased funding for the courts. Governments cannot expect courts to spend shrinking amounts of money on civics education when there are pressing demands on court resources, especially pressing demands caused by cuts to court budgets and to programmes which directly impact on the efficient management of court business.

The notion of "judicial accountability" has to be treated with some caution.[30] As Chief Justice Brennan said in "The Third Branch and the Fourth Estate":

Court critics sometimes complain that judges are unaccountable. To whom should they be accountable and for what? In charging a jury, judges expose their conception of the law to be applied. In reasons for judgment, they give a full and public account of the facts they find and the law as they hold it to be. How otherwise are they to give an account of the exercise of their powers? Should the judge be accountable to the government of the day? Certainly not. Should the judge be accountable in some way to an interest group or to the public? The rule of law would be hostage to public relations campaigns or majoritarian interests. Should a judgment be fashioned to satisfy popular sentiment? That would be the antithesis of the rule of law.

Of course the community demands accountability of those in public office, including judges.[31] The administrators of courts should be and are exposed to the same measure of scrunity of their budgets as the various departments of government. But it is understating the true position to say that the judiciary "are not dependent on any group or body in society, least of all the Executive which appoints them".[32] They are dependent on the government for adequate funds to run the courts. These are funds that might be used to create court public education offices, among other things.

Courts and judges are only truly accountable to the constitutional requirements of their respective jurisdictions, not the policies of governments. Reduction of court budgets does not improve the prospect of improved education of the public by the courts. Continued decreases in court funding might threaten the constitutional separation of powers.

What Journalists Can Do

The courts do not have sole responsibility for improving the standard of media reportage of the work of the courts. Journalists should strive for accuracy and completeness in the reporting of the work of the courts.[33] Their Code of Ethics requires it. They should explain the reasons for the decision and resist sensationalizing their reports.[34] They should have the patience to deal with the important issues and mute the drama, the trivial and the salacious.[35] Journalists should fight to retain the integrity of their reporting right through the process of a story.[36]

These are ideals. But journalists have much to gain from improving the standard of coverage. Journalists should not assume that judges are not aware of their critics.[37] They are. All judges are conscious of criticism of their work in the media. They too are informed citizens. They read newspapers. They get upset when journalists get it wrong, just like anybody else. Judges read by-lines and the reputation of a legal correspondent can be destroyed in the eye of the judge by inaccuracy.[38] Journalists will command the respect of judges if they are accurate and strive to be complete in their coverage of the work of the courts. This might improve opportunities for access to the courts.

If the hallmarks of high quality legal reporting are accuracy and impartiality then greater exposure should be given to the commentary of observers who have the capacity to provide informed and impartial views on the work of the courts. Asking a lawyer who has appeared for one of the parties to explain a decision will produce a predictably biased response. Politicians will rarely have the capacity to greet a decision with an impartial response, particularly in constitutional cases. A barrister who appears for a party in constitutional litigation who is also a member of a political party cannot be expected to provide an impartial account of a given decision.

Conclusion

It is going too far to say that courts are "a public relations disaster". Many judges recognize that they need to make greater efforts to communicate with "the punters" about the issues.[39] Judges have made great strides in improving public education about their work.[40] Australian courts have, within their limited means, embraced the electronic media, with most courts having web sites and publishing judgments on the internet. The appellate courts have taken steps to develop an Electronic Appeals Project which would greatly enhance the efficiency of handling court information. That project might even be developed in such a way as to improve public access to pre-judgment information.

A number of senior judicial officers have expressed "cautious optimism" about the prospects for the relationship between the courts and the media.[41] Hopefully suggestions like these and the work and ideas of the many people involved in the Courts and the Media Forum will help to improve the flow of information and any fear and loathing in the relationship between the "third branch" and the "Fourth Estate".


[1] (1996) 187 CLR 1.

[2] "Wik decision disappointing", Financial Review, 24 December 1996, p 12.

[3] Ibid.

[4] McCrann, T.,"Mabo II decision will add to the perils of Pauline", Herald Sun (Melbourne), 1st edn., 24 December 1996, pp. 35 and 37.

[5] Taylor, L., "Ruling puts Coalition in a tough spot", Financial Review, 24 December 1996, p. 4.

[6] Tingle, L., "Government faces nightmare over High Court's judgment: Comment", The Age, 24 December 1996, p. 5.

[7] Austin, R.P. (the Hon. Justice), "Occasional Address to Graduation Ceremony (Postgraduate Law)", 2 May 1998, University of Sydney, also cited by Williams, G., infra, n. 39.

[8] Chief Justice Brennan had already taken the exceptional step of writing to Deputy Prime Minister Tim Fischer to scold him for his attacks on the Court. Fischer had criticised the High Court for, as he put it, delaying the delivery of the Wik judgments. Fischer later apologised to the Chief Justice, but was one of the principal critics of the judgment, and later remarked that the government would be replacing retiring judges with "Capital C" conservatives.

[9] Brennan, the Hon. F.G., "The Third Branch and the Fourth Estate", (1997) 16 Australian Bar Review 2.

[10] See for example, Wilson v Minister for Aboriginal Affairs (1996) #.

[11] Sir Frank Kitto, "Why Write Judgments", (1992) 66 Australian Law Journal 787 at 790, cited in McLelland, R., infra.

[12] BLF Case (1982) 41 ALR 171 at 90 per Gibbs CJ and at 123 per Mason J, both quoting Lord Salmon (see Anderson, D., fn 15).

[13] As Jenny Brockie pointed out in the panel discussion following the third session of the Forum, infra.

[14] Even the Attorney-General was prepared to make this concession. See also Campbell, R., infra.

[15] See for example Greenhouse, L., "Telling The Court's Story", (1996) 105 Yale Law Journal 1537, 1539-1540.

[16] Greenhouse, L., 1543.

[17] Infra.

[18] Merritt, C., infra.

[19] Sir Anthony Mason AC KBE, "The Courts as Community Institutions", (1998) 9 Public Law Review 83 at 87, cited in Williams, G., infra, n. 44.

[20] A difficulty noted by Jenny Brockie during the panel discussion following the third session of the Forum.

[21] It has been said that some judges are "very astute at using the media", for lofty and grubby objectives: Campbell, R., infra.

[22]See Merritt, C., infra. There is an unfortunate tendency for newspaper articles describing cases involving judicial review of legislative or executive action to be headed "Judges Hitting Out" or "Judges Slamming Ministers": see the comments of Lord Lowry, United Kingdom House of Lords Debates, 5 June 1996, "The Judiciary: Public Controversy", p. 1297.

[23] If prepared by the Court itself, this would also remove the spectre of "spin-doctoring". See Campbell, R., infra.

[24] A practice noted by Chief Justice Black, infra, Austin, R.P. (the Hon. Justice) "Occasional Address to Graduation Ceremony", 2 May 1998, University of Sydney, p. 10; Dawson, the Hon. Sir Daryl, "Judges and the Media" (1987) 10 University of New South Wales Law Journal 7 at 24; Sir Ninian Stephen, "Address On the Occasion of the President's Luncheon", Law Institute of Victoria, 19 August 1998, pp. 10-12.

[25] [1998] HCA 30; (1998) 153 ALR 643.

[26] But cf. Williams, G., infra and Campbell, R., infra.

[27] See the comments of Wendy Bacon in the discussion following the second session of the Forum.

[28] As Chris Merritt points out, infra.

[29] As Jenny Brockie, Liz Jackson and Susannah Lobez pointed out in the Forum discussions, infra.

[30] Gleeson, the Hon A.M., "Performing the Role of the Judge", (1998) 10(8) Judicial Officers' Bulletin at 59, cited in Williams, D., infra, n. 4.

[31] As the Attorney-General noted in his paper. Of course, this comment applies with equal force to the members of the executive and the legislature.

[32] See Williams, D., infra.

[33] Dawson, D., "Judges and the Media", [1987] UNSWLawJl 3; (1987) 10 University of New South Wales Law Journal 17 at 23.

[34] See Williams, D.,, infra.

[35] See Campbell, R., infra.

[36] See Kimberley Ashbee's comments in the discussion following the third session of the Forum.

[37] See Anderson, D., infra, particularly at nn. 14 to 16.

[38] See Kimberley Ashbee's comments in the discussion following the third session of the Forum.

[39] As Liz Jackson pointed out in the panel discussion following the third session of the Forum.

[40] The Hon. Michael Black AC, "Letting the Public Know--the Educative Role of the Courts", (1994) 1 Canberra Law Review 165. See also the comments of Chief Justice Black and Chief Justice Doyle, infra.

[41] See for example Black, M., infra, and Lord Cooke of Thorndon, United Kingdom House of Lords Debates, 5 June 1996, "The Judiciary: Public Controversy", p. 1291.

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