University of Technology, Sydney Law Review
JUSTICE FITZGERALD: I will try briefly to provide a broad context for this discussion. There seem to be two overlapping major issues when considering the law and freedom of the media. One is the balancing of competing public interests, freedom of communication, fair trial and privacy. For example, that of the victim and the accused in criminal proceedings. The other is the relationship between media power and privilege on the one hand, and media responsibility on the other. How much can be left to self regulation and at what point must the law interfere?
In that broad context, the issues which I understand the speakers to have raised, and upon which I hope the panellists will comment, include the law of contempt's restrictions on reporting of court proceedings, suppression orders, an obligation to disclose a confidential source and, of course, publications which injure reputation.
JULIE EISENBERG: I would like to pick up on a point that Richard Ackland made right at the very beginning, which is a really good illustration about a case involving media content law. I think it has implications that trickle down to some of the issues between the media and the courts. That is the Chakrovarti case. I am just going to elaborate a little further beyond what Richard said.
I sometimes have difficulties in explaining to working journalists some of the technicalities of defamation law. The Chakravarti case is a classic example of where I give them the extract from the Royal Commission and I give them the article and we sit down and actually try and work out firstly, where those defamatory meanings came from, and secondly, why it wasn't a fair report.
At least in the case of one of the two articles that was sued over, all the quotes that the journalists used were accurate. The problem came not from the accuracy in the reporting but in the juxtaposition, as Richard Ackland pointed out.
One of the issues in that case was the fact that the article was dealing with a transcript which covered statements made about four executives of the State Bank of South Australia subsidiary, which then moved on into a discussion about two of the executives. Mr Chakravarti was one of the people who accidentally got caught up in the allegations made about two other executives.
It was a very complicated case. It was messy. Even if you read the article, it is not entirely clear what happened in the Royal Commission and obviously the journalists did their best to try and make it clear for the readers.
What it illustrated were really two problems. One is the difficulty for the media in going into a court and summarizing something very complex that has happened during a very long day, or during weeks of evidence, and putting it into a digestible form. That is the first part of the problem. The second part of it is then having an understanding of what actually happened in the courts.
Just to illustrate this, one of the tests for whether or not something is regarded as a fair report, for the purposes of defamation law, is whether or not it gives the same impression to readers that they would have got had they been sitting in court that day.
Now having looked at the article in the Chakravarti case, I'm sure there were many lay people sitting in court that day who may have been just as confused when the evidence switched from talking about four executives to talking about two executives. It illustrates, I suppose, a fundamental problem of interface between the courts and the media. Obviously the courts are there to do justice and the processes are there to suit the parties in the particular case and not to suit the media. But at the same time, they present considerable difficulties for the media, even in understanding what barristers are talking about or what the judges are saying. I'm not alone in complaining about this.
I recall a speech that Justice Kirby made a couple of years ago when he was talking about the introduction of cameras into the courtroom. One of the things he complained of was how some of it would make really bad television because you have mumbling barristers and he actually named two exceptions to the mumbling barristers. I thought by doing that, he probably defamed the rest of the class of barristers in Australia. But it does illustrate a fundamental problem and one which is not easy to resolve.
That judgment also illustrated another difficulty which again is problematic and I know the courts are trying to address. The High Court judgment in Chakravarti was probably about 60 or 70 pages long. There were five judges. They gave three judgments and even as a trained lawyer, I had some difficulty trying to work out which ones were agreeing on which particular points, because that decision covered eight or ten points of considerable legal significance. For journalists, trying with deadlines to get across the essence of that judgment to the public in a way which is comprehensible, it raises a lot of issues.
So the Chakravarti case I see as an illustration, not only of the difficulty in giving guidelines to the media about what they can and can't report, but also the fundamental difficulties in the way that courts are run and their user-friendliness, not only to journalists but also to members of the public. At the end of the day, the media is an interface between the courts and the public who can't turn up and sit in court every day. I think that case highlighted those.
ANDREW KENYON: To start off with Richard Ackland and again Chakravarti, a different area of the case that has created uncertainty is in connection with pleading. If the defendant says: "what I published doesn't mean what you have said to the plaintiff, it means something else and I have a defence". It is now unclear at what point of the litigation process the defendant will be able to or have to say that.
State or territory courts are just now beginning to deliver judgments following Chakravarti and there is a divergence in what the judges are saying should now happen. There were already divergences in the Australian states and this hasn't helped.
I'm glad the Pantsdown decision was mentioned. I thought it was a very interesting decision. It's very short. It deals with what is undoubtedly extremely offensive material to the plaintiff. I was somewhat surprised that the Court was so short but enough of the meanings arose for the jury to find it defamatory in the context of something that was intended to be satirical comment. The judgment itself doesn't explore those issues at great length. It may be that other commentary will look into that more.
One of the themes that David Anderson raised is something that has been left inarticulated so far about what the media's role is. They are the "fourth estate"--how does the law conceive of that and how should it?
David Anderson mentioned that perhaps it is better to think judges aren't influenced by the media in America. Judges may play to the media. Perhaps it is possible that in those instances, the judicial office is not being used in the best possible way. The media has certain privileges under law but also does not always use them in the best possible way. I think there is unexplored territory for legal writers and courts to think about how the media can be encouraged to use its privileges better and if it should get the benefit of the doubt.
A very simple example: witnesses or people involved in a court case have absolute privilege for what they say. It is understood as being necessary in the interests of justice that they can speak in court and give their evidence. Judges have long noted that this privilege is given with the knowledge that it could be abused. People could get up and say malicious falsehoods but the privilege is seen as necessary within our constitutional system. It is much easier to base that privilege and the need for it than it would be to give any vaguely comparable privilege to the media.
The media invokes its role as the fourth estate, its role as a useful messenger to the public, but it is also a commercial entity. The commercial influence on media content is something that hasn't been explored much yet. Both the combination of the role of the editor-in-chief and the publisher in certain newspaper entities needs to be raised, and the way that may change how the media is understood internally, how journalists think of their role and perhaps how the court should think of it.
JUDITH WALKER: One instance where the media is going to find it very hard is where it is broadcasting interviews with other people, as to whether they are reliably reported. A journalist may well not have any belief as to the truth or otherwise of what has been said, and overall it might be quite a balanced report, but it puts in doubt very much whether we can rely on Lange. That is just one instance of its difficulty in application.
Regarding Pauline Pantsdown, the ABC is seeking special leave to appeal the decision. We may well not get special leave and even if we do, we may not get the decision we want. However, we think it is important to go ahead and try and get special leave at least.
In relation to sub judice contempt, you are undoubtedly aware that the New South Wales Law Reform Commission is undertaking a review. The ABC will provide submissions to that review but there are three issues I would like to see the Law Reform Commission look at in particular. That is, consideration being given to abolishing sub judice contempt in civil cases where there is no jury; preventing private individuals bringing proceedings for contempt of court, which they can do at this stage in New South Wales. In fact, the ABC was prosecuted by the Civil Aviation Authority a couple of years back for publication on "Background Briefing". We were successful and were not convicted of contempt. The other issue which is always alive is the time at which proceedings are said to be pending. Particularly in situations like extraditions, arrests and questioning by the police. I find it is much easier to give pre-publication advice in relation to defamation than it is in relation to contempt.
In relation to what Professor Walker was saying about the Parliaments and the courts, there is another issue too, which is not related but does arise. If a Member of Parliament during a court case makes statements in the Parliament that could be in contempt of those proceedings and the media reports those statements, is the media liable? I think it probably could be prosecuted for contempt whereas the Member would be immune from such proceedings.
They are just some brief issues. Some of you may recall the ABC, a few years ago, broadcasted a programme called "Joh's Jury". We would not be able to make that program in Queensland now because of the restrictions that have been imposed in Queensland on approaching jurors. Queensland has probably the most restrictive provisions in Australia. I think it was a good programme and it would be a shame, as is the case now, that it could not be made again.
WENDY BACON: I want to say one thing about judges wanting the public to have better access to the courts. While I think it is admirable and I agree with the sentiment, the best people to talk to in this respect are really the public relations and communication management, a huge growth industry. As journalists, while reporting fairly and accurately (whatever exactly we mean by that), in the end we have a critical role and one that must include criticism of the courts.
I saw there could be a career in critical reporting on the High Court when, as a young student journalist, I found myself in the courts on censorship charges and went to a High Court judgment called Crowe v Graham. I found that, when it came to judging the "modesty of the average person", the High Court felt it was best to leave that question not to evidence, but to judges and magistrates. I realized at that moment there were grave problems in legal thinking and these needed to be explained to the public.
I thoroughly endorse what Chris Merritt said about the need for a judicial commission. Underlying a lot of what journalists are saying is a grave concern about our ability to report, to do our jobs properly, in the current economic situation of the media. Adding to this concern about economic constraints is concern about the threatening and unsympathetic judicial attitudes displayed towards the media by Australian courts.
Another notion that we need to look at is what we mean by "freedom of the media". Both as journalists and lawyers, this idea of freedom of expression is one that goes to the heart of the way we think, but rarely do we unpick it and look at the contradictions within it. There is a lot of fine political philosophy which does this. I just refer to two people. Professor Schauer of Harvard University has come to Australia and examined some of the contradictions underlying the development of the notion of freedom of expression. Also Professor John Keane has traced back different strands of thinking around freedom of expression and the contradiction in linking "freedom of expression" with the notion of a "marketplace of ideas".
For me, freedom of the media is connected with giving people access to a voice, and I think this goes to the heart of journalism. We all agree that the media is obviously an important part of modern democracy. All citizens need to feel that they have a voice, that they are able to speak. This is not the situation in which we find ourselves. Freedom of the media is also connected with freedom of access to information and access to the courts.
That is why if we actually look at the ways in which our freedoms are constrained, it is important to analyze particular decisions. Our High Court has had muddled thinking about the meaning of freedom of expression. But if we don't have a framework for our media which can provide a public sphere for freedom of communication, then there is a disjuncture between the freedoms we like to think we have and what in practice we have. I think journalists and the public are confronting these contradictions daily.
How we sort our way through the economic constraints and the commercial imperatives that are overwhelming our ability to report is a very tricky question. Somewhere, I think, in the meeting of law and politics and journalism we have to resolve those questions more clearly as a society. I think we need to go back and unpick some of these notions we throw around, for example "public interest". What do we mean by that in relation to freedom of expression?
JUSTICE FITZGERALD: There is a very troubling mood swing against the judiciary and I'm going to call on Mr Ackland to defend the judges. Is there anyone in the audience who wants to make a comment at this stage?
SPEAKER: I feel that we need here is not only "Media Watch", which Richard Ackland presents on the ABC, but what we need is a "Court Watch". There used to be some journalists in Australia, in New South Wales, The Sydney Morning Herald, who actually had a role in mentioning the courts and felt that they were doing their job properly. I was grateful to John Slee. He worked for The Sydney Morning Herald and he was probably the right hand to newspapers and he was very critical of the courts. Unfortunately, Mr Slee was sued twice for defamation and I think that pushed him out of the market. Since he's gone, there is very little going on here now. Are journalists actually looking into this area, to see that the judges are doing their job properly? After all, justice not only has to be done, it has also to be seen to be done.
I know in Sweden they have a person whose role is actually looking at the courts to see that they do their job properly. He actually sits in court to watch what is going on and to make sure the judges are acting properly in light of the money the government puts into the courts.
JUSTICE FITZGERALD: I think the general trend of your observations is probably reflected in a suggestion that one of the other speakers made this morning about a federal equivalent to the New South Wales Judicial Commission. But that may not be quite as effective as having Mr Ackland conduct "Court Watch".
I think what we are doing is very useful at the moment but there does seem to be one thing missing. This isn't just an attempt to deflect attention away from criticism of the judiciary. I'm really almost out of the judiciary so there is no personal interest in it but one of the things I don't think anybody has really discussed yet, and perhaps Andrew was going to do it when I cut him off, is that given that there is probably an enormous commitment to freedom of speech to the maximum permissible extent, and I think that is a view which would be shared surprisingly to some of you perhaps by the judges as well as the journalists, at what if any point should there be control by the law? How can we, if at all, curtail freedom of speech?
It is not much good just telling us of the imperfections in the present system unless someone has some positive suggestions as to what the new controls ought to be.
MICHAEL CHESTERMAN: In the previous cases dealing with the implied freedom, the issue of compatibility of the constitutional freedom with contempt law has been mentioned. But I'm afraid that the general tenor of those comments has been to say that contempt laws should be seen as certainly surviving the implied freedom, although in the CAA case, Justice Kirby in the NSW Court of Appeal, as he then was, said the implied freedom certainly must impel the courts to scrutinize very carefully any excesses with the contempt law. So, I think the answer has to be that the core of the thing will remain and the Lange case probably still remains as providing an important incentive to judges at all levels to ask, when they apply the contempt law: "Is this repression going further than is necessary to protect the fair administration of justice?"
SALLY WALKER: I agree with everything that Michael said but I will just add a proviso that I think the area of contempt law that is wrong, under Lange, is contempt by scandal. I have a feeling that is the area that is much more likely to be inconsistent with implied freedom. But I don't think an argument about sub judice contempt would get up.
JUSTICE FITZGERALD: Julie, earlier you had a question that you wanted to ask one of the speakers. Do you want to pursue that?
JULIE EISENBERG: It was really just to get a view from other members of the panel on the implications of Chakravarti, what they thought of them? Whether they thought there were any severe practical problems that arose from it and what really went from there?
WENDY BACON: I don't want to cut across what anyone else wants to say but I think it is a very worrying decision. If I look back to when I was reporting in the 1980s I faced a contempt of court charge as a result of writing an article called "Roger Rogerson and the Barbecue Set". That was really a compilation of different material that we had gone out and gathered from different privileged reports and put together. As Michael McHugh who was on the Court then said, it was superficially one of the most defamatory articles he had seen but much of it was covered by parliamentary privilege, as we saw it then.
Now in that situation, what we faced was a cover-up of a police investigation. Once the media was on to it, the tactic was to get Roger Rogerson before the courts. Then discussion would be limited. It didn't turn out to be that long but then more cases were sub judice.
I happen to agree with the contempt of court protection of the right to a fair trial. In that case we were certainly testing the limits, but we were relying on "fair and accurate reporting" of the courts and parliamentary provision. I must admit that occasionally since then I have wondered if it was a bit like it is with satire and defamation. That is, that there is a principle of sort established by practice, but perhaps it would be very rocky if it were tested in the courts.
SPEAKER: I would like to ask Michael Chesterman a question. Today at this forum we are represented by the ABC, The Sydney Morning Herald, The Australian Financial Review, and The Australian. I was wondering how many of your 21 cases actually involved media who aren't represented today, i.e. the commercial broadcasters in radio and television, in particular the popular newspapers, and whether they may account for the majority of contempt cases? On the other hand, whether perhaps the quality media who are represented here today may account for the majority of defamation cases?
MICHAEL CHESTERMAN: I wouldn't agree in terms of the contempt cases actually, although as you asked, I quickly scrolled my eyes down the list of the titles. John Fairfax features fairly regularly. Nationwide News features in a couple of cases I had up on the screen. The television commercial broadcaster in issue was Channel 10 in the most recent case I have referred to. 2UE, as we know, has been there.
Then some of the most serious and significant ones like David Syme back in Victoria in 1982 is by The Age. I don't think you can generalize in terms of saying "it is the commercial media who get contempt trouble and are responsible" or, if you like, "the national broadcasters who don't".
RICHARD ACKLAND: Could I just ask Michael Chesterman a question, what does he think of the New South Wales Attorney-General's decision not to prosecutor Alan Jones for contempt? This arose in the Neddy Smith trial, where Jones said, in the middle of Mr Smith's evidence, that Mr Smith was not to be believed, to an audience that Jones seemed to appeal to, mostly in New South Wales. Do you see this as an encouraging breakthrough or is it more to do with the fact that there is a New South Wales election coming up and Mr Carr doesn't want to lose Mr Jones?
MICHAEL CHESTERMAN: It all depends on your point of view, Richard. I thought it was certainly well within the boundaries of the contempt for him to be prosecuted. He was attacking the credibility of the accused while the trial was running. Put it this way, if he had been prosecuted, I wouldn't have been surprised.
SPEAKER: I put a question to Michael, David, Sally and Richard, whoever wants to answer it. A topic that has come up, really only briefly today, in a different context, is the internet. I was at a conference earlier this week run by the ACCC where there were hundreds of people and the buzz word and the graphics that were put up on overhead projectors showed this absolutely exponential increase in the use of the internet. Now a lot of that was in commerce but I think it has to inevitably follow that a lot of that will be media as well and people will increasingly turn to other sources for their media. Obviously that is going to have a big impact, not only on the ability of people to enforce defamation laws where the person who is defaming them is off in Tonga or Ghana or wherever, but also in the area of contempt. I just wanted to get maybe Michael's thoughts and in view of the Starr investigation, David's thoughts on it.
MICHAEL CHESTERMAN: I think there is a very real issue for contempt law. There is some interesting work being done in terms of research at the University of Leeds by a fellow called Clive Walker. Of course he has also taken on board the problem that they have more there than here of material simply coming over from Europe through mainstream television which you can't really block out from an English audience. The geographical proximity makes it cheaper.
I think in the longer term there will have to be a look at the extent to which material coming out through the internet really does permeate potential jurors and if the stage is reached where you have to feel whatever you do in terms of mainstream prohibitions against our media, you are not going to prevent the spread of that material. We may have to rethink how we deal with this whole situation.
JUSTICE FITZGERALD: Professor Anderson, this goes back I think to your earlier theory that material gets into the public arena no matter what attempts are made to prevent that. Would you like to add something?
DAVID ANDERSON: Yes, I would. I think this is part of a much, much bigger issue and maybe soon to be the biggest issue of all and that is cross-media competition. If you just take the subject of a fair trial, for example. I think in the past the principal protection against the effects of prejudicial publicity have been the restraint and good sense of the mainstream media in many different ways. Judges can often get the media to agree to different particular restrictions. There have been voluntary guidelines adopted that were at one time widely followed throughout the United States. Guidelines agreed upon by the media and the judiciary about how to handle these problems.
Those are all dead in the United States. The main reason they are dead is because of the effects of cross-media competition of which the internet is just a part. But there are many others and one of the problems is that when you have a gathering like this, the people who are going to be the problem aren't in this room. They are the people out there with the websites; they are the people doing the satirical magazines; they are the people doing the radio talkback shows. Those are the real sources of the problem, at least in the future.
In the past, we have had what we always call "the press". We continued to call it "the press" even after it included broadcasting. I think it is more the notion that you all describe as the "fourth estate" which is a body that has some shared values and some common interests. That has evolved into the media. The media has no shared values and no common interests. At least if you include in the media everybody who needs to be included.
Now if you think about just a few of the ways in which this affects the issues we have been talking about. When the Special Prosecutor's report was delivered to the House Judiciary Committee and then made public by that Committee, the network news organizations in the United States, the executives and the producers sat down and said, well, we're not going to use this material. It's not the kind of stuff we can use on a network newscast and so on and that lasted about 30 seconds. They then realised that wait a minute, 30 minutes from now our own network's magazine show is going to come on and they are going to use all this stuff. So what the hell are we talking about suppressing it for? We can't. The decision is taken out of our hands effectively.
Another example is early in the events when these internet websites began appearing with uncorroborated rumours and so on. That was their draw card, that they would publish any rumour that came along. Well, first the mainstream media ignored them. Then pretty soon there got to be so much talk about this and so much popularity of these things that the mainstream media then began reporting that the internet was reporting these unconfirmed rumours. Pretty soon they began reporting these things without even that veneer. The standards of that aspect of the media just take over. It is the lowest form of common denominator. We now have around 30 magazine shows on television in the United States, ranging from Oprah Winfrey to Jerry Springer. Believe me, there are no restraints. Self restraint is not a phrase in their vocabulary. As we think about these problems, it is one thing to think about what would we do, those of us in this community in this room, but I'm afraid we are not going to have control over it.
JUSTICE FITZGERALD: Anyone wish to comment?
SPEAKER: I think it's a little disappointing that in some ways we started out talking about how the courts could communicate more effectively with the public and we are now talking about how much we are going to stop communication so that we avoid contempt, so that we avoid defamation, et cetera.
I thought the question about the internet may lead us back to a remark made by Alan Rose this morning about the new media. Courts have websites too. The High Court of Australia publishes its judgments on the web very speedily. Courts use CD-Roms and other forms of electronic record of evidence which make the evidence extremely accessible within the courtroom and to the lawyers involved. All of these channels of communication seem to me to open up a new dimension for the courts which perhaps might take them back to those days that we all look at with misty and nostalgic eyes, when the community could come through the door of the courtroom and understand what was going on and see justice being done. Surely this should be something of our aim in terms of talking about the courts and the media.
How can the courts communicate? I don't like to think of it just as getting the public relations officer in to put the right spin on it. I think some of the public relations officers do that more than others and I think the Federal Court has been a wonderful example of how that has not been done but it has in fact got the message across very directly.
So how can the courts communicate directly, as they used to when people could walk in the door of the court, so that people can understand what is going on in the courts and not be continually trying to work out how they can block media giving the wrong impression or fouling up the case?
MICHAEL CHESTERMAN: We have a very active website. The judge can go on the web virtually instantly and he could browse through it and find a fair bit about the court. Improving it will make it a lot better but it is frequently accessed. When there is a high interest case, there are an enormous number of accesses. Our latest project actually is to develop a quiz for school children on the website.
JUSTICE FITZGERALD: I thought you were going to say for judges.
MICHAEL CHESTERMAN: That will be interactive and you can get pictures of the courts, pictures of the judges. Australia actually was one of the leaders. There were two models. Australian courts through AUSTLII (the Australian Legal Information Institute) were effectively the leaders in getting on to the web and you will find judgments.
JUSTICE FITZGERALD: My sense is there is a much greater consensus about the desirability of interaction between courts and the media in the provision of information about the workings of the courts, and the cases that come before the courts, than there is about any controls there ought to be upon the media's behaviour in what is reported. That is the hard bit. I don't really think we are grappling with it. I think we are tending to go back to the motherhood issues just a little bit. Motherhood is important.
Do we accept Professor Anderson's position? It may be a desirability position. Because it can't be prevented, we should forget all about these problems and make it open slather.
DAVID ANDERSON: I was attempting to show you the horrible side of it.
JUSTICE FITZGERALD: I didn't mean you were advocating it but I thought you were saying it was upon us, or would be soon upon us. Are you suggesting we should do something about it or should we lie back and enjoy it?
DAVID ANDERSON: You can decide for yourselves how much you enjoy it. I guess my point would be you are much better equipped to deal with the problem here because you have direct means of restraint. If you are attempting to rely, as we do, largely on these indirect means of restraint, it is never going to work within an area of intense cross-media competition.
ANDREW KENYON: I think most of the things I was going to raise have been raised by Professor Anderson and another. Let me say briefly about the points Judith Walker raised and then some of the speakers commented on which is the uncertainty of contempt law and the difficulty of giving advice.
Fairly extensive research in Britain has looked at how defamation law affects the media, print, national, local, radio, television, et cetera. One of the interesting findings from that was that in terms of national newspapers certainly, many people involved volunteered the fact that contempt was a bigger concern to them than defamation.
I support your comments and in terms of the defamation research, we also had a query relating to maybe investigative journalism or popular press, I think more defamation suits in certain areas. I don't think that research in Britain necessarily found strong trends except one that occurs to me and that was the Sunday papers in Britain. They had a strong tradition of investigative journalism, and had a much higher issue of complaint and writs than the dailies. A much higher rate and in fact a higher number overall, even though there are six times the dailies nationally printed for each weekly. I think that is all I need to add.
JUSTICE FITZGERALD: Any of our speakers have something they wish to add? Mr Ackland?
RICHARD ACKLAND: Might I just say this, at a practical level, and this is where I think websites can play a real part because all journalists are cruising these sites now constantly, but this is what arose in the Erskine case which of course ended up in a terribly expensive verdict against The Herald. A journalist going down in the lift of the court is handed an affidavit by the person who swore the affidavit file. He thinks "oh, that's a court document, that's fine". Off we go and stick it in the paper.
The lawyers at the newspaper can't literally check everything. It just seemed a reasonable sort of assumption for a lay journalist to make--"here is something from the court, therefore it is protected". Journalists don't really know all the time what is off limits, whether you can report a Statement of Claim or not. No one is really sure about that half the time, as far as I'm aware.
The jury is out of the room. There is all sorts of vagueness surrounding the stuff journalistically and it can lead to enormous trouble. In a practical way I think courts can actually do quite a bit about educating on this sort of thing. The media lawyers of the main publishers run courses and Julie runs courses and they are all terrifically beneficial, but I think in a whole lot of very obscure little areas--court rules and things like this--are just a minefield for journalists in what can be reported. Not even the lawyers know about them necessarily, or if they do, they have conflicting advice about them. It is just something that could go up on the website, you know, a little sort of education department.
SPEAKER: Picking up that point, the one consistent message I keep getting from journalists' criticism is the idea that it is insular, it is clubby between the judges and the Bar Table. The barristers and the judges know the documents they have approved because they have read them, but the journos sitting nearby do not have a clue because they have not seen any documents. It just bears out the point you made that it does make it awfully difficult for journalists.
WENDY BACON: I would just like to say one thing about going even further on the internet. One of the difficult things for reporters can be just getting access to court transcripts. My impression is that since transcripts are electronic, it is more difficult. Now, I think I have seen one court put up some transcript, but I think it would be very helpful to have as many electronic transcripts up on the internet--after all, they are part of the public record. Also, why not some exhibits and affidavits and other things?
This would really enable journalists to do thorough overviews of court cases, and to go back into the evidence, which you really need to do in order to write a summary of the case. To pick up on a point of Barry Hart's, journalism also has a real function in scrutinizing miscarriages of justice. How many of our miscarriages of justice would have been investigated if it had not been for the media playing a very proactive role?
ALAN ROSE: That was the point I was trying to make this morning. The technology is there now. The difficult part of it was ever getting enough to get access to it. That is now no longer a problem. The electronic brain can sort all of this, all of those hand-up briefs, all of those outlines of arguments.
JUSTICE FITZGERALD: Would any other panel member like to make a comment?
MICHAEL CHESTERMAN: I just wanted to make the comment that we are a long way at the moment from publishing electronic transcripts of District Court proceedings. It is still going into a tape recorder and being transcribed as and when necessary, but not otherwise. There is a big court resources issue. I quite agree with the theory of what you are saying, that once the document has got into a court proceeding, admitted into evidence, forming part of the proceeding as much as what is said verbally then, of course, it should be open for reporting, but we have a little way to before we can produce an electronic system which enables access to this information.
 AC, Judge of Appeal, New South Wales Court of Appeal; formerly President of the Queensland Court of Appeal; Session 2 Panel Chair.
 Associate Professor of Journalism, University of Technology, Sydney.
 Media Lawyer, Communications Law Centre.
 Visiting Fellow, University of Melbourne.
 General Manager, ABC Legal and Copyright Department.