Flint, David --- "The Courts and the Media: What Reforms are Needed and Why" [1999] UTSLawRw 6; (1999) 1 University of Technology Sydney Law Review 30

The Courts and the Media: What reforms are needed and why

I propose to focus on the role of the print, radio and television media as a means by which Australians are informed about the work of the courts and about the administration of justice. That is, on the relationship between the courts and the media as a source of public information about the work of the courts. I will deal only with the news media. I leave to one side the entertainment media and the internet, although the latter is of considerable importance.

I consider this role of the news media, this relationship between the courts and the news media, to be of fundamental importance. The courts are an institution of government. Highly simplified, our system of government has three arms or elements--the legislature, the executive and the judiciary.

The significance of the judiciary, as the third arm of government, is self evident. The judiciary is significant because the administration of justice is important. We must have a state-backed system for the resolution of disputes between Australians, between Australians and their governments, and for the trial of criminal charges. That system of justice must be one in which the law is applied impartially and fairly, and must be administered by judges who are truly independent.

The judicial arm of government has a relationship to the Australian people that differs from that of the other two arms of government. It must administer laws enacted by Parliament, whether it agrees with those laws or not. It does not set its own agenda or formulate and implement policies in the manner of the executive government. The judicial arm of government depends upon the legislature and upon the executive government for funding. It cannot raise its own resources. The enforcement of its decisions depends, ultimately, upon the executive government providing the necessary backing. This is just another way of expressing Alexander Hamilton's famous proposition that the courts, lacking the power of the sword and the power of the purse, are the least dangerous of the three branches of government. The judicial arm of government does not have the democratic legitimacy that comes from popular election. The judicial arm of government does not deal with and draw support from interest groups in society in the way which the executive and legislature do. It stands apart from the community in many ways, although it acts for the community.

The point I make is that the legitimacy and effectiveness of the courts, and indeed of the system of justice, rest upon public confidence and support. That in turn must be derived from the public's perception of the manner in which we discharge our function. While our system of justice is underpinned by the power of the state, I believe that public confidence in the courts and public support for an independent judiciary is essential for the proper functioning of our system of justice. The courts have to earn that public confidence, or to be more precise, have to maintain the public confidence which I believe they presently have.

That is my starting point. Public confidence in the courts is vital and the courts must earn that public confidence by the manner in which they discharge their function.

My other basic premise is that because the courts are an arm of government, and because our concept of justice is one of justice done in public, public access to the courts is a basic right. The right of access seems to me to rest upon our concept or theory of government and upon our concept or theory of justice. These two fundamentals are linked because, I believe, the confidence of the public in the courts depends upon the public having access to the courts, in the sense of being able to observe and to understand what the courts are doing.

The courts have long accepted the right of public access to the courts as an incident of the administration of justice. It is accepted as fundamental to the administration of justice. The courts have not paid the same attention to the idea that public access to the courts has a democratic or governmental aspect. I do not mean that the courts would deny this point of view, although whether my analysis is correct might be debated. What I mean is that the right of public access has rested on the notion of justice administered in public, which means that the doors of the court must be open to the public. That in turn means those who choose to resort to the courtroom, which is usually relatively few people.

My approach is somewhat different. My approach is that the courts try to reach those who choose not to exercise the right of access in person and to inform them of what the courts are doing and why they do it. The courts must do this because Australians have a democratic right to be told what the courts are doing. As an arm of government we should do what we can to inform Australians about our work and not simply take the view that those who choose to come to court to observe the administration of justice are free to do so. As well, because I believe that public confidence in the courts rests upon public understanding, it is our duty as officers of justice to maintain public confidence in the courts, and therefore to do what we can, once again, to give Australians information about what the courts are doing.

It is this latter approach which I think the courts have been slower to accept. That is, the notion that the courts, as an institution, have an obligation to inform Australians about their work. This is much more than an obligation to permit access to those who seek it. I realize that many judges would differ in view from me and I recognize that I may not be right. Many judges would take the view that our only task is to administer justice in court and that we are not suited or equipped to undertake an active role in the process of communication with the public.

I recognize the force of that point of view. In response to the point about our competence, I wish to make it clear that I am not suggesting that every judge has to be closely involved in the process. Nor am I suggesting that what is done is to be done entirely by the judges. My view is that the relevant responsibility rests upon the courts as a body or institution, to be discharged by such persons as are appropriate. This will, of course, include professionals with relevant qualifications. There is a part for the judges to play and it is important that they co-operate with the work of informing the public. However, the task is not necessarily one to be discharged by the judges. The responsibility is not ours alone. It also rests upon the executive government. But the courts have a part to play as well, and at present, the executive governments of Australia do not, as far as I know, do much in this area.

My argument has a theoretical underpinning but there is a practical aspect to it. If the courts are going to leave it to others, the media in particular, to determine how much and what sort of information the public gets about their workings, then the courts are saying that they are content to leave it to others to shape the public understanding and perception of the courts. That, to me, is not acceptable. I believe that the courts are well placed to explain their function. I consider that experience shows that leaving that task to others is, in the long term, unsatisfactory. I do believe that the courts retain the confidence of the public but I believe that the uninvolved approach of the courts, to date, puts that at risk and certainly makes it much harder to maintain than it otherwise would be.

This leads me to the conclusion that the courts should co-operate with the media in this area. I say that because the media is the means by which Australians get much, probably most, of their information about the courts. That being so, and because Australians have a right to that information, we have a responsibility to assist the media. As I have explained, I believe that public confidence will be enhanced if we assist the media to communicate accurate information to the public. In other words, we should see the media as the means by which Australians exercise their democratic right of access and a means by which we can maintain public confidence in the courts.

We are not working with the media to protect ourselves or to cultivate a desired image. We are doing it because Australians have a right to know and this is a way of recognizing that right. Also, public confidence and the independence of the judiciary depend upon public understanding.

Of course, the media is not the only means by which the courts can communicate with the public. But it is a very important means. Treating the media as an important means by which the public exercises its right of access has a number of ramifications. It means that the courts should do what they can to facilitate that form of public access. The courts should do what they can to make their processes comprehensible to the media and, through the media, to Australians generally. Assistance given by the courts to the media is not an act of generosity on our part. It is done on the basis that the media is exercising a right on behalf of the public and on the basis that we wish to communicate to Australians through the media.

This is simply said, but it is a demanding charter. It will take a long time to implement. I do not imply by this that the courts should give uncritical assistance to the media, just as I do not imply that the courts would then expect to escape criticism. We are entitled, indeed obliged, to point out deficiencies in the manner in which the media informs Australians about the courts. On the other hand, I accept that we have to move with the times and we have to understand, even if we do not agree with, the nature of contemporary journalism.

It is important that the media recognizes the constraints on the courts in doing this. When sitting in court we are engaged in the administration of justice. That is a serious business. It is demanding work and usually requires all of one's energy and attention to be done properly. The parties before us have a right to be treated properly and justly. We cannot allow court proceedings to become, as it were, a media event. We must find ways to maximize public access without damaging the process of justice. Television cameras in court are an obvious example of the difficulties that can arise. In theory, enabling the public to watch court proceedings as they happen, or more or less as they happen, on their television screens at home is an ideal way of informing the public of how the courts work. However, bringing television cameras into court brings with it many problems for the fair administration of justice. We have to balance the interests of the administration of justice and the rights of Australians to know what happens in court. It is not simply a matter of making arrangements that best suit the media.

There are real limitations upon what the courts can do. But having said that, I believe that there is plenty that the courts can do. We can be accessible for interviews, participate in talkback radio, talk to community groups, produce informative videos and so on. All of these activities depend upon the courts having the human and financial resources that are needed and we do not always have these. We need to persuade the executive government of the need for appropriate funding. However, we should be willing to do what we can.

The course that I suggest is not risk free. The judiciary has a lot to learn about working with the media. If we aim to make use of the media as a means of communication with Australians, we must learn how to make proper use of the media. If we do not, mistakes will be made.

It is also appropriate to recall that in this area the media has responsibilities. As I understand it, the function of the news media is to report the facts. A lot of the reporting of the work of criminal courts is quite superficial. Reporting of sentencing decisions is often relatively poor because there is rarely an attempt to capture the reasons for the decision. The emphasis tends to be upon the bare facts of the crime, the sentence, and the reaction of the victim. I believe that accurate reporting requires an attempt be made to report the reasons the judge(s) gave. I believe that the media can, and should, do better than it does when reporting the work of the courts, even allowing for the restraints under which it works. I also believe that the media should, and could, give more attention in current affairs programmes to aspects of the administration of justice but I accept that this requires the co-operation of the courts. I am not suggesting that the news media in particular is there to argue the case for the courts. I accept that it is there to report facts. However, I do believe that its reporting of the facts at times is incomplete and superficial.

In short, I believe that the courts must change their attitude to the media and to making use of the media as a means of informing Australians. I believe that there is a sound democratic argument for doing so and that to do so is in the interests of the administration of justice in the broadest sense. As for the media, I hope that it will listen to our views and consider the part that it plays in informing Australians about the system of justice. I hope that the media will accept a responsibility to provide Australians with sound information and not just with "news". I hope that the media will take a close interest in the subject matter of justice and will try to establish a reputation for accurate reporting.

Changes are occurring in the relationship. I hope that the courts and the media can work together to achieve a better informed public.