Black, Michael --- "Opening Address" [1999] UTSLawRw 3; (1999) 1 University of Technology Sydney Law Review 7

Opening Address

It gives me great pleasure to open this forum on the courts and the media and I do so with enthusiasm. There are several reasons for this.

First, the topic to be addressed by this forum is critically important. Nearly all the papers that will be presented acknowledge that and explain why it is so. Fundamentally, we are concerned with public understanding of, and hence confidence in, Australia's system of justice. This involves access to the courts, which not only means access by being present in person as is the right of every citizen, but access to the workings of the courts by the reports of journalists. There are few topics more important than public access to the courts and public confidence in them; independent courts in which the public has confidence underpin our democratic system of government.

Secondly, the topic is one in which the public interest can clearly be advanced by the writings of those who, by scholarship, profession or both, are best qualified to offer insights into the topic and the issues it raises. It is also a topic that can be illuminated by informed discussion and by an understanding of different viewpoints--something that today's program is calculated to achieve.

This leads me to the third reason for my enthusiasm. Patrick Keyzer has assembled what, if I may say so, is an outstanding group of presenters, panel chairs and panel members from the universities, the law and the media. Quite a few of the speakers are qualified in at least two of these fields. I am not aware of any comparable forum on the subject where there has been such a high level of expertise and such a breadth of expertise.

As well as having enthusiasm for today's forum, I approach it with a fair degree of optimism. Whilst I hasten to agree with Mr Roderick Campbell's comments that the relationship between the courts and the media is hardly likely to be a marriage made in heaven, nevertheless I think that recent history--in which many of us here have been personally involved--gives cause for optimism. Of course, it must be recognized that tensions are inevitable and indeed they are to a large extent healthy, but I believe that there have been great changes in the attitudes and practices of many courts in Australia over the past five or six years, and I would like to open this forum with a brief first hand overview of the changes that have occurred during the 1990s which I think justify a certain optimism. Perhaps what I want to convey was better expressed in the heading of today's leader in The Australian: "Cause for hope, not celebration".

For the first two years of the present decade, the attitude of the courts towards the media was, in general, much as it had always been. The importance of the media was recognized but the approach was essentially passive. The courts would provide a press box and perhaps even a press room. They did their work and the press reported it as best it could. The prospect that the electronic media might be allowed into the courtroom for any purpose was viewed with apprehension, even though the Alice Springs Coroner had shown in 1981 that the world did not come to an end when a judgment was delivered in front of a television camera. There had been one judgment summary--in the Tasmanian Dam Case[1] in 1983--but that experiment had not been repeated.

The only media liaison officer was in the Family Court; none of the Supreme Courts had one and nor did the Federal Court. The media was generally not supplied with any visual information about the courts, with the consequence that the most common visual image of the courts was of red-robed long-wigged judges, some with buckled shoes, proceeding into church at the opening of the legal year. The Chief Justices never, or hardly ever, gave press interviews about their courts, and the idea that they might appear on talkback radio was the stuff of an extreme judicial nightmare.

And so 1993 arrived, a year in which the courts seemed to receive nothing but adverse press. Even the inappropriate comments of judges in England were reported here and were seen to reflect a universally out of touch judiciary. Then two things happened which marked, it seems to me, the beginning of a new era. The first was the appointment of Jan Nelson as a media officer at the Supreme Court of New South Wales. I came to know Jan and her work and I greatly respected her. It seems to me to have been both fitting and significant that her obituary in Tuesday's edition of The Australian was written by the Chief Justice of Australia.

The other important event of that year was a statement made by the former Chief Justice of Australia, Sir Anthony Mason, in his "State of the Australian Judicature" address in Hobart in September 1993. In that address, Sir Anthony suggested that it would from time to time be appropriate for judges to explain publicly their work and the issues they faced. In effect, he said, judges should take advantage of the marked upsurge in the public interest in the courts, and should not be afraid of telling the public what they were doing and why.

Let me now give a brief summary of what are, in my view, the most important developments since then.

The appointment of Jan Nelson was soon followed by the appointment of media liaison officers to the Supreme Court of Victoria, the Federal Court of Australia, the Supreme Court of Western Australia and the Courts Authority of South Australia. From the time of their appointments these media officers, with the strong support of their Chief Justices, have played what I see as a very important part in facilitating media access to the courts and improving understanding between the media and the courts.

Whereas there were no judgment summaries in 1993, in the Federal Court such summaries are now routine. Recently the Court decided, as a matter of general policy, to prepare them wherever possible in cases of public interest. I understand that the same view is taken by the Supreme Court of South Australia.

In many courts, journalists are now allowed to use tape recordings to facilitate their reporting of cases and in some instances the recording of whole cases for the purposes of a later broadcast has been allowed. The recording and subsequent broadcast of the entire reasons for sentence of Chief Justice Cox in the case of Martin Bryant in 1996 provides a notable example of a broadcast of taped court proceedings. Earlier, in May 1995, Justice Teague had allowed the televising of his reasons for sentence in a murder case. The next day The Australian carried the headline: "Murder sentence broadcast divides the nation". It may be that Justice Teague was ahead of his time, but I for one would not criticize him for that and, to me, the goal of explaining to the public the true reasons for sentence--one of the most difficult tasks that a judge has to undertake and one that he or she undertakes in public and in the interests of the whole community--is a goal worth striving for.

In my own court we have adopted an incremental, if cautious, approach to the electronic coverage of our cases, but it is nevertheless the fact that we have now allowed cameras into our courtrooms on no fewer than 25 occasions, including a number of cases in which judgment summaries were recorded for later televising. Almost half of the judges whose primary work is with the Federal Court have now had first hand experience of television in their courts. Many judges of the Federal Court, and judges of other courts also, have permitted cameras to record file footage of themselves in court or in chambers for use in news and current affairs reports. We were, I think, the first superior court in this country to permit the recording and subsequent broadcast of a judgment, to allow a whole trial to be recorded on video tape for potential broadcast (the Yorta Yorta Case[2]) and to facilitate the live telecast of the delivery of one of its judgments.

In what seemed a radical step at the time, the taking of the oath of office of a judge of the Federal Court at her swearing-in ceremony was recorded for television by the ABC in 1993. This now occurs routinely when a new judge is appointed to the High Court of Australia. In South Australia an entire trial has now been the subject of a radio broadcast, and in both South Australia and Western Australia judges now take part in talkback radio programmes. I should also mention the increasing willingness of the country's Chief Justices to respond to invitations by the media to explain the work of their courts and, if necessary, to defend them (although opinions continue to differ about the appropriateness of that role being left to Chief Justices). Some Chief Justices, myself included, have also written articles explaining the law and the work of their courts and thus have developed some understanding of the constraints within which journalists work.

This summary is not exhaustive, but it is intended to convey something of what I believe is a great change in the way our courts see the world and their place in it. In the Federal Court we now aim to take the next step which, subject to getting the necessary funding, is the appointment of a Public Education Officer to develop and co-ordinate a program of court-based education about the work of the court. Some valuable work in this area has already been done in other courts. The appointment of a Public Education Officer will be in addition to that of the Media Liaison Officer, who now forms an indispensable part of the court's staff.

What I have said so far bears more perhaps upon the need for continuing reform, which is to be discussed at session 1, than upon the topic of session 2, "The Law and Freedom of the Media", or upon session 3, "Access to the Courts and its Implications". But the reforms outlined so far are by no means irrelevant to these other topics. Here too, court media liaison officers have played an important part in increasing the level of understanding between the courts and the media. In some jurisdictions work has also been done to assist journalists to avoid the unintentional publication of material that has been the subject of a suppression order.

Overall, we find that in the space of a very few years there has been a rapid and substantial change in the way that many courts see the media and the extent to which the courts have a role in explaining their work to the public.

Of course, all change involves risks, and where courts are involved there is a need for special care to avoid conflict with the fundamental values of the administration of justice. The requirement of impartial justice according to law must remain paramount. But the existence of risk, even when fundamental values are involved, should not be allowed to stand in the way of desirable change. Those who seek to change need to be well informed and to move forward with appropriate care. Recent history shows that if this can be done, what appear to be problems turn out not to be problems, and what are in fact problems can often be overcome. That is another reason why an informed discussion such as this is so valuable. I will say something about judgment summaries to illustrate the point that I am seeking to make.

I was the presiding judge when we first used these in the Federal Court as recently as 1995.[3] While I believe that judgment summaries should be encouraged, one objection to them has been that they could be used to put a "spin" on a case. The answer to this, as borne out I think by experience, is that the judgment summary is released simultaneously with the judgment that it summarizes and the two stand immediately for public comparison. The world of the spin doctor, by contrast, is the world in which the spun message is the primary source. Moreover, the development in recent years (and here some Australian courts, including the High Court and the Federal Court, were again the leaders) of virtually instantaneous internet access to judgments has, as a practical matter, dramatically increased access to both judgments and judgment summaries.

Then it is said that judgment summaries may divert attention from the real judgment. Experience does not bear this out and, in any event, in the real world of the radio or television journalist there is likely to be a very tight deadline with an extremely narrow window of time available for presentation of their material. The relevant moment is now, and it is no use a court saying otherwise. If the moment is now there will be no time to digest 40 or 50 pages of close legal analysis. This, of course, in the ideal world, should be done--but it can be done later.

Also, I do not think that judgment summaries are really very hard to do. I would be very interested in the views of journalists here today, but it seems to me that if, for example, the point in issue in an application for judicial review is whether a minister followed the procedures required by law in making a decision that resulted in the demolition of, let us say, a historic building, what the general public has an immediate interest in knowing is why the court set aside the minister's decision. If the judgment summary says no more than that the minister's decision was set aside because the court found that her department had not advertised the proposal as the law required and had not given an interested party a right to be heard, that conveys to the public the essence of the decision. The legal reasoning is available to anyone who wishes to read it on the internet. In most cases of judicial review the essential point, and with it an understanding of the different roles of the court and the executive government, can be conveyed very simply. Our experience with the Hinchinbrook Case[4] shows that the essence of judicial review can even be conveyed in a short television bite.

In some cases this has an added advantage. If we believe, as we surely must, that it is possible to facilitate informed debate and that society is better for it, then a clear and understandable statement of what a court has actually done, and why, is a powerful antidote to unfounded political comment about court decisions. A climate of readily understandable truth is not a climate in which that type of behaviour--one that undermines public confidence in all three branches of government--can readily thrive.

Likewise with television in court: this is one of the most controversial topics in this area, but in our court we have taken the view that the dangers and difficulties likely to be encountered should not stop us from proceeding incrementally, if cautiously. By doing so we have, I think, had success in explaining our work to the public. At least the public now knows what it looks like inside the Federal Court. Some of the apprehended problems have not materialized simply because the technology has improved and in other respects because the court's Media Liaison Officer and television broadcasters have worked in co-operation with each other.

An interesting result of this incremental approach was that when, in the MUA Case[5], the court's requirement to complete its reasons for judgment and media deadlines came into collision, the three appeal judges felt able to permit their judgment--and not the judgment summary as intended--to go live to air. This was the first time that this had happened in Australia. Although there was some comment that the technical legal analysis in the judgment was not in itself riveting television, this was balanced by others who said that the insight into the reality of the legal process, on national television, was itself something of great interest and significance. Even in the admittedly controversial area of television in courts, where the demands of justice and the demands the media makes may come into conflict, there is a strong case for incremental movement so as to give the public greater access to the courts.

In stressing some of the positive elements, I do not wish to minimize the difficulties. These are particularly acute in the areas to be discussed in the second and third sessions. There is also the overriding question of the unswerving independence that is required of both the courts and the media. But the answer in today's world is surely not the complete isolation of the past.

There is one additional reason why today's topics are so important. It seems to me that they are elements of an even larger and more fundamental matter, which is the broader need for a well informed society. That would be a society better able to make decisions about itself, based upon an understanding of all its institutions of government. This is a matter of profound importance.

I also see the process of change that I have described as part of a larger movement of change as today's courts assume an ever greater responsibility for their own management and for adapting the system in which they play a pivotal role to meet the changing needs of modern society.

[1] Commonwealth v Tasmania (1983) 158 CLR 1.

[2] Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors, Olney J, 18 December 1998, unreported.

[3] Norvill v Chapman & Ors [1995] FCA 1726; (1995) 57 FCR 451.

[4] Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 77 FCR 153.

[5] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia & Ors (1998) 77 FCR 478.