University of Technology, Sydney Law Review
Australian Broadcasting Authority
Professor of Law,
University of Technology,
In a modern democracy, the courts and the media must have two essential characteristics. First, they must be independent. Second, they must be separate, not only from the executive and the legislature, but also from each other. The best we can hope for in the relations between them is that each will have a degree of respect for the other, but certainly not deference.
It is inevitable of course that there will be friction between them. And certainly criticism. In 1819, one of the first justices of the Supreme Court of New South Wales, Barron Field, published a small book of poetry. This was First Fruits of Australian Poetry. Soon after this, a critique appeared which was also in verse:
Thy poems, Barron Field, I've readLord Jacobson once issued this admonition about another state institution and the press:
And thus ajudge their meed
So poor a crop proclaims thy head
A barren field indeed!
My Lords, relations between Government and the press have deteriorated, they are deteriorating, and they may deteriorate even more. And on no account, on no account must they be allowed to improve.It may well be desirable that government and media relations be adversarial and based on mutual suspicion. Nevertheless, a more respectful modus vivendi has traditionally prevailed in relations between the judicial branch and the media. Yet these relations have certainly deteriorated in Australia in recent years.
Can relations be improved? Should they be improved? My answer to both questions is a definite "yes".
How then can they be improved? They can be improved, I believe, by reference to two sound principles. The first principle is based on international law and in the application of the freedom of political communication found in our Constitution. The second arises from the Constitution and is fundamental to the common law. It is the principle of judicial restraint. That is, that the courts should restrict themselves to the judicial role which is implicit in the separation of powers and the very independence the judiciary must have.
I come to the first principle. This principle operates in the context of the High Court decision in Lange v Australian Broadcasting Corporation which has now settled the meaning of the constitutional freedom of political communication. This acts as a restraint on the making of legislation. And the common law must be consistent with it. Legal restrictions on freedom of political communication must only be those for an object which is necessary in a democratic society. And the restriction must be proportional to the achievement of that objective. This principle calls not only for a reconsideration of existing restrictions, it also means that every proposed restriction, however well intended, should be subject to the same test.
In Lange the Court gave a signal to trial courts in defamation cases involving the media to give new life to qualified privilege. This should, over time, have the desirable result that the media will be freer to examine matters of genuine public interest. Although the constitutional defence created by Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian Newspapers Ltd was no longer available after Lange, the practical effect would be much the same. The media would be free but this would, and should, only be available in the airing of matters of genuine public interest. The publication of mere rumours about the private lives of public figures, à la Kitty Kelly--remains totally unjustifiable. It is appalling that once great publishing houses can today bring themselves to publish such material. The law must continue to provide a remedy against this.
There are two aspects of substantive law related to the application of this principle which I believe do need reconsideration. First, the assumption that a jury, properly instructed, remains more susceptible than judges or lawyers to media reporting. This is unjustified today--if it ever was. However, it is not suggested we introduce "trial by media", just a reform of the law of contempt.
Second, the provision of information to journalists, on the basis that the source not be named, is fundamental to the free flow of information in a democratic society. This should be protected by shield laws which ensure a court's procedures are not compromised. Processes which should be protected are those of the courts, not of administrative inquiries or bodies such as Royal Commissions or anti-corruption agencies for instance.
When the cream of the world's lawyers met in Melbourne a few years ago at the International Bar Association Conference, the Australian and English lawyers were at pains to demonstrate how the law of contempt ensured juries remained unexposed to media reports. After hearing this in a bemused silence, a Dutch lawyer said that it could have been a story "from the other side of the moon".
And yet we persist in trying to quarantine our juries. In a major fraud case in England, the judge decided that, while the jurors were locked up to arrive at a verdict, they ought to be able to relax by watching television. So the judge banned any report of the trial on the electronic media! Admittedly an extreme example, but one which illustrates the requirement that the jury should come to the trial completely fresh.
Yet juries were originally expected to report on what they knew. Even by the 18th century, when the United States Constitution expressly prescribed impartial juries, the great Chief Justice of the United States, John Marshall, refused to stand down jurors merely because they had been exposed to media reports. He would only do this if a juror had already made up his mind. John Marshall was right. Insisting on an unexposed jury is wrong. What is needed is an unbiased jury.
Even today in America, the courts actively seek those who have not been so exposed. As Mark Twain wrote, no matter how intelligent or how willing to put aside any prior exposure, it is assumed that "ignoramuses alone could mete out unsullied justice".
The contempt law of this nation equally assumes the ordinary Australian is affected or indeed infected by whatever he or she reads, sees or hears. (This is tempered by the assumption that he or she also has an extremely poor memory!) When Neville Wran was fined for affirming his belief in Lionel Murphy's innocence, it was because of the potential impact on the jury. Yet any reasonable person would have accepted this as Mr Wran's genuine personal belief. Evidence of his affection and loyalty, certainly, but hardly proof of Mr Justice Murphy's innocence. When a Minister of the Crown not so long ago in this State spoke in the most general terms about the Government's campaign against paedophilia, Australians would not have thought that he had said anything which would affect a jury, which just happened to be about to hear a charge of paedophilia. Yet the judge aborted the trial.
The assumption that jurors are putty in the hands of the media has been demonstrated to be untrue. The fact is juries can be singularly impervious to the media. This has been shown in a series of cases which have attracted maximum media exposure. For example, Jeremy Thorpe and the Kray Twins in the United Kingdom, and OJ Simpson in America.
If the purpose of contempt law is to quarantine the jury from information and debate, it doesn't work. The sub-judice rule normally doesn't apply until arrest. All the photographs, all the stories beforehand, cannot be withdrawn. So it is assumed jurors have poor memories. Where there is media saturation, any attempted quarantine is pointless. Had Martin Bryant pleaded not guilty, would there have been even one potential juror in Tasmania not well informed on the Port Arthur massacre? And no juror can be completely isolated from the gossip and rumour that surrounds a notorious crime, made worse by the absence of counter-information by the media restrained by contempt law.
Sometimes it will even be official policy not only to relax the quarantine, but to egg the media on. If an accused escapes from custody, and is thought dangerous, the media is encouraged to publish photographs and warnings. In London in July 1998, people were arrested carrying bombs ready to go off. The media reported the police speculations--who they were, what they planned to do--well beyond the constraints of contempt law. Perhaps the public's legitimate rights to know and hear police advice outweighed the need to have a virginal jury?
There is a lesser inclination to apply contempt law where no jury is involved. Nevertheless, The Sunday Times was found to be in contempt when it dared to suggest the makers of thalidomide should offer more by way of damages to settle several cases before the English Court. As a Law Lord once said (Lord Salmon), "no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge."
And if judges, and presumably lawyers, cannot be tainted, we just witnessed the extraordinary case of a judge who actually chose to be tried by the media. When Justice Vince Bruce was called before the New South Wales Legislative Council to defend himself, he campaigned vigorously and robustly. In Parliament and in the media, even appearing on the "60 Minutes" television programme. Had this been the trial of an ordinary citizen, he and any journalist who interviewed him or commented on the case would have been charged. Presumably, Members of Parliament are as impervious as judges to media speculation. Unlike all other Australians.
I must stress that I am not calling for trial by media. The media should act with special restraint when identity is likely to be in issue. Not to protect the jury, but the witness. But I repeat, identity should be likely to be in issue as it never really was with Martin Bryant. And much of what is trial by media in the United States results more from the misbehaviour of the lawyers, including those who depend on popular election.
Confidential sources are fundamental to the very concept of journalism. Without the guarantee of protection, "fear of exposure will cause dissidents to communicate less to trusted reporters. And fear of accountability will cause editors and critics to write with more restrained pens."
Not long ago, journalists in Australia knew that, on rare occasions, a court might require them to expose their source, and by refusing they risked a fine or gaol. This did not happen often.
We have had a rash of cases: in 1990, Tony Barrass--gaoled and fined; in 1992, Joe Budd--gaoled; in 1993, Chris Nicholls--gaoled; David Hellaby--fined; John Synott--threatened with contempt proceedings and Deborah Cornwall--found guilty of contempt. There have been raids on newspaper offices and those of the ABC around the country.
In 1995, The Courier-Mail ran a story that the Federal Police had gone soft on an investigation into allegations that a former federal Minister had been provided with services of prostitutes in return for government favours. No doubt, wanting to find out who leaked the story, there were raids late last year on the journalist's home and on offices of The Courier-Mail. They were unsuccessful. The raid at The Courier-Mail was forestalled by television cameras arriving to film the event.
What is the reason for this acceleration? Are these isolated instances or is there a sinister campaign against journalists? Is it acceptable in our Australian democracy that when incompetence, bad administration and even worse have been exposed, that it is journalists who suffer?
Journalists in Australia have always known of the risk they run. Apart from the broad undefined power of Parliament to find contempt, journalists, in the past at least, thought that they would not have to reveal sources except at a trial and then only when this was relevant to the proceedings. Not any more.
There have been two pernicious developments which have come about--without our noticing.
The first is the use of pre-trial discovery to punish journalists. Pre-trial discovery seemed a good idea at the time. Before you start an action, the court helps the citizen to find out more about a case he or she may wish to bring. It is meant to stop clever lawyers winning by surprise--trial by ambush. It is now a superb weapon which has been added to the armoury of the rich and powerful. It has the potential of stopping a journalist (and setting an example to others). It is also very satisfying. You won't find out who gave the information--but you certainly can make the journalist suffer.
The second development is the creation of statutory bodies which have wide investigative powers. Not only bodies like the New South Wales Independent Commission Against Corruption (ICAC). Others are given ancillary powers to require the production of documents or compel the answering of questions. ICAC conducts its own investigations and determines its own terms of reference. So one of the few protections for witnesses--relevance to the proceedings--has gone out the window. Deborah Cornwall could not have been asked the question put to her by ICAC in a court unless it had been relevant to a specific charge against the accused. When eventually her recalcitrance was referred to the Supreme Court, her lawyers pointed out that convicted criminal, "Neddy" Smith, too, had refused to answer questions. But no action was taken about his recalcitrance.
Did we ever intend to give powers to bodies like ICAC greater than those of the Supreme Court, to use against journalists and the media--the very institution that has done more in the initial exposure of defects in public life than any other?
As Justice Douglas of the United States Supreme Court said:
A reporter is not better than his source of information ... Unless he has a privilege to withhold the identity of his source, he will be the victim of governmental intrigue or aggression ... [He warned that the] reporter's main function ... then will be to pass on to the public the press releases which the various departments of government issue.Many jurisdictions recognize, to a greater or lesser degree, that journalists should be able to protect their confidential sources. The Australian Press Council, many years ago, initiated a call for the introduction of shield laws in Australia. A shield law needs more than a direction to the court to balance the competing interests of the litigants with the desirability of protecting the various degrees of confidentiality which may prevail in our society.
The Council proposed that New South Wales legislation should include reference to the proposition that:
The Council proposed that a New South Wales shield law be based on the American approach and include the following ingredients:
At the beginning of my paper I argued for judicial restraint, that, as a matter of principle, courts should restrain themselves to the judicial role. In fact most do. But it is the exceptions that have put the courts under such serious attack in recent years. This principle of judicial restraint flows from the very independence the judiciary must have. It is implicit in the constitutional separation of powers. Obviously then the courts are not to intrude into, for example, what is the preserve of the legislature. Nor should trial judges stray beyond the judicial role.
I hasten to add that I am only speaking of the role of judges in court. I make no criticism whatsoever of judges who make thoughtful and considered comments on matters of public interest outside the courts. Indeed, many of these have been significant contributions to the intellectual debate the country must have.
Now judicial expansionism, as I define it, has nothing to do with the development of the common law by some of the world's greatest judges. Judicial expansionism is the active intrusion into the preserve of other bodies, usually for the best of intentions.
It is generally assumed the phenomenon of judicial expansionism has the origins in the United States. Let me give you an example. The Supreme Court of the United States has read into the penumbrae, the shadows of the Constitution, a right to privacy. This arises by implication from the express provisions of the Bill of Rights. I make no criticism of this. The drawing of necessary implications is unavoidable, indeed desirable, in the proper interpretation of legal documents. But then the judges decided to peer even further into those penumbrae, which for others, including the Founding Fathers, must have been an impenetrable fog. And lo and behold, from the implied right to privacy comes a right, a constitutional right, to abortion!
Now at this point let me stress, let me underline, that I am not entering into debate on the legality or morality of abortion. What I am saying is that to anyone but the most extreme judicial expansionist, it is obvious that the Constitution of the United States intends that this matter be one for the legislators to determine.
The absurdity of the Supreme Court's position became even more apparent when it had to determine the point during a pregnancy at which the soi disant constitutional right disappeared. As I understand, this is at the end of the second trimester. Judges rushing in where legislatures fear to tread, as one Law Lord put it. And no doubt the legislators were delighted to be let off the hook and not to have to determine a truly difficult question.
The results of siezing the legislative role in this, and other matters, should have been obvious. The Supreme Court attracted the same opprobrium as the political branches. In brief, it had become politicised. The confirmation hearings of nominations to the Court have since come, sometimes, to resemble tabloid soap operas. It is hard to imagine a more undignified way of selecting a judge, one which is sure to put off many a good candidate.
Our own High Court resisted this forbidden fruit for almost two decades. Then on 2 August 1988, the Court made a puzzling announcement. It would abandon, it said, the wig, the robe, as well as the more recently introduced jabot. Now there are those, including editors, who think that judges who cling to traditional dress are out of touch, even ridiculous. Juliet Greco, in the film The Roots of Heaven, plays a comfort woman in the Second World War and muses: "Men are not at their worse when they take their uniforms off. Its when they put their uniforms on." Perhaps judges are not at their worse when they put their wigs on. The problem may be when they take them off.
For the High Court was about to enter its most controversial years. And Mabo v Queensland [No 2] (the Mabo Case) is among the most controversial of its decisions of this period. The case related to Eddie Mabo's claim to own land on the Murray Islands. The Islands are occupied by the Meriam people who are Melanesians, not Aborigines. The people are agriculturists, not nomads. And unlike Aborigines, they recognize individual rights to identifiable parcels of land.
The Court could merely have decided that their title to land survived the annexation of the Islands by the Governor of Queensland in 1879. This would have been a just decision. Moreover, it could have been justified by precedent and on principle. Rather, the Court decided, in effect, to legislate. That is, to legislate with respect to the native title of the Aboriginal people, who were not represented. To legislate with respect to the title of people who were nomadic, not agriculturists. To legislate with respect to land title across the whole of mainland Australia and Tasmania--matters not before the Court. And in doing all this, the Court did what a common law court should not do. It is elementary that findings of fact in controversial areas can only be adduced from evidence. Yet the judges actually refer to research they have themselves undertaken to make their significant findings! The decision was expressly based on evidence not put before the Court, on arguments not heard in the Court, and affected persons not represented in the Court.
I have no doubt that the judges in Mabo acted with the best of intentions. They wanted not only to do justice to Eddie Mabo, but they also wanted to redress what they saw as the injustice rendered to the Aboriginal people. However, this was not their function. Nor were they well equipped to do this.
This question was one which the Australian people had already determined in 1967. The people decided, overwhelmingly, that they would grant the Federal Parliament the power to deal with Aboriginal issues. This was not to be exclusive. It was to be concurrent with the States.
Let me repeat. The people gave the power to legislate on Aboriginal issues to the Parliament. They did not give the power to the High Court.
No doubt the judges were impatient with the legislators. But this was no reason for them to rush in where legislators feared to tread.
The decision, and its aftermath, did little to improve reconciliation. The French academician, Emmanual Todd, measures this by the degree of female exogamy, marrying out, of the minority concerned. Comparisons with, say, American blacks, demonstrates that reconciliation in Australia has been working well. Indeed very well, in this regard. And Australians had shown a regret for the wrongs of the past and a strong commitment expressed in money terms and in laws and policies to ensuring the equality of all our people.
The judges, having legislated a broad proposition, decided that detailed supporting parliamentary legislation was necessary. A poorly drafted and inadequate solution, the Native Title Act, was put through Parliament. (The Canberra press gallery, in an extraordinary abdication of their role, stood and applauded when the Bill finally passed the Senate!)
In the following period, especially after The Wik Peoples v The State of Queensland (the Wik Case), reports of land claims, including claims from groups unknown to surprised land holders, were given limited coverage. Worse, there was a danger that the process of reconciliation would be derailed. Relations between the races in some parts of the country were becoming embittered. Fortunately, the serious defects in the Native Title Act apparently have now been cured, at least to a significant degree. And notwithstanding the rhetoric, it is unlikely any future parliament will seek to restore the repealed provisions.
However, Mabo was not the high point of this aberration. That surely must have been the case of Minister for Immigration and Ethnic Affairs v A Hin Teoh (the Teoh Case) where the High Court told us something which a neophyte student of public international law knows is wrong. Students are well aware of the fundamental principle that a treaty has no legal effect without legislation. By then, both Government and Opposition had had enough and moved to overrule the Court.
The result of these intrusions was that the Court was engulfed in a storm of criticism. Yet the judges seemed surprised and bewildered. They still expected to be treated as judges. After all, the High Court had previously handed down decisions in the most controversial of matters, including the case of Bank of New South Wales v The Commonwealth (the Bank Nationalisation Case) and the case of Australian Communist Party v The Commonwealth (the Communist Party Case). Nevertheless, in both of these cases, the government of the day sought to reverse the decision by legal means. It is only in recent times that it is suggested that High Court decisions are sacrosanct. But after those two cases, there was no wave of criticism directed to the Court. Why? Because in those two cases, the Court acted judicially. In Mabo, the Court strayed from its role and as a result the Court was now politicised.
New appointments to the Court would come under the closest political scrutiny. As in the United States, appointees were assessed as to where they were thought to belong politically and ideologically. There were calls for an inquiry into the advice one judge gave as counsel where the allegations, if true, could not have amounted to grounds for removal. Fortunately, the High Court has now reverted to its traditional role. I expect that it will regain the position it once enjoyed.
The phenomenon of judges straying from their role is fortunately not common. However, it is not limited to the High Court. It can also apply, fortunately rarely, to trial judges and magistrates.
If a judge were, for example, to adopt the common excuse that unemployment is a principle cause for the increase in crime in our society and to accept this as, if not as a justification for, a significant reason to mitigate a sentence, there would be an outcry. (The fact is, of course, the judge would be wrong. There is not even any statistical correlation between unemployment and the level of crime.) For, in substituting some general malaise for the concept of individual responsibility, the judge is also striking a fundamental tenet of our civilization. That is, each individual is responsible for his or her own actions. So when a Sydney magistrate praised environmentalists who invaded the Prime Minister's home, there was a similar outcry.
Let me refer now to an editorial in The West Australian. This did not escape the notice of Mr Ackland's ABC programme, "Media Watch". And "Media Watch" itself did not escape the scrutiny of Mr Evan Whitton in The Australian. It was about an incident far too common today--a violent robbery of an elderly person by a young man. Kenneth Robert Maley, aged 28 years, had threatened the elderly man with a knife. When he did not get any money, he knocked him down. He cut him twice with the knife. (The judge was satisfied that the cutting was not intended.) The old man hit his head on the pavement, which stunned him. While the old man was on the ground, Maley tore his trousers and took his wallet, stealing $465. A witness chased Maley, and the police later arrested him.
When Maley subsequently pleaded guilty, his solicitor told the judge that Maley was having trouble supporting his young partner and children and was motivated by a desperate need for food and money. Drugs, the solicitor said, were certainly not the problem.
The judge, Mr Justice Wallworth, said,
Yes, there is very little being said generally in the media about the terrible problems a lot of these people are facing. It is just a cry for extreme punishment, one after the other, and until the community takes some responsibility for its citizens we are going to have this type of crime being committed.
Needless to say this was controversial. Mr Evan Whitton wrote in The Australian, "[t]he community erupted; some felt the judge was accusing them of being responsible for the mugging of an old man."
In any event The West Australian thought it would be reasonable to find out whether Maley was in receipt of welfare payments. So The West Australian indulged in a little investigative journalism. Maley's former partner came forward and said he received almost $700 a fortnight and spent most of it on drugs. At the subsequent sentencing, the Department of Public Prosecution suggested the judge's comments had been taken out of context and misinterpreted by the media. He said the editor had a conflict of interest which he should have declared. This was because he had once been criticized by the judge! But The West Australian has since reported many of the judge's decisions without any criticism. In any event, you can see the general principle, that the community will obviously be concerned if, in sentencing a criminal, any judge were to act more as a sociologist than a judge. And you can see the impact this will have on the respect and confidence that the community has in its judges.
Maley, incidentally, was sent to gaol for six years and was declared eligible for parole. Would it have been different had not The West Australian intervened?
We have inherited sound institutions and superb constitutional arrangements. They represent the very best the world has to offer. If we change them, we should do so with great care. Not inadvertently. Not just because it seems like a good idea at the time.
The judges will command respect, if not deference, if they act as judges. As most of them do. Of course, this does not mean that they cannot develop the law. There is room for the Dennings, the Holmeses and the Mansfields. We are fortunate in Australia in having a judiciary selected by merit. To perform their tasks independently, they must be secure. They should only be removed on conviction for a high crime. Calls for a representative judiciary, if realized, would undermine this institution. We do not have, and no one would suggest we should have, a representative college of surgeons, representative teams of athletes, representative ballet dancers and representative opera singers. Any other method of choice would be thought ridiculous and rightly so. I was almost about to say no one would suggest we should have a representative professoriate ... but that is another story.
In conclusion, let me make these points. First, that we need to review those laws restricting speech and the media to ensure they are for an objective necessary in a democratic society. And that they are proportionate to that objective. Similarly, we need to test any new proposal, however well intended, to restrict that freedom. I have specified the areas of contempt law and the protection of journalist's sources as areas for reform, and defamation law for monitoring.
My other point is that if the judiciary, at all levels, is to maintain public confidence and respect and to ensure the level of criticism remains within reasonable bounds, it must act with judicial restraint. It should not act as a legislator or as a sociologist. To its credit, the great bulk of judges and magistrates do act with judicial restraint.
Of course, it is equally true that media practitioners too should not stray beyond their role. As Mr John Alexander warned in the 1988 Andrew Olle Lecture, they should not seek to be players on the political stage. But that, again, is another story.
  HCA 25; (1997) 189 CLR 520.
  HCA 46; (1994) 182 CLR 104.
  HCA 45; (1994) 182 CLR 211.
Branzburg v Hayes  USSC 169; (1972) 408 U.S. 665 at 721 per Douglas J.
 Supra n. 5 at 722.
 Wilhelm, Protection of Sources, Norwegian Institute of Journalism, Fredrickstard, (1988).
 Australian Press Council Submission of 15 August 1996 to the Hon. Jeff Shaw, Attorney-General for New South Wales, in protecting Confidential Communications from Disclosure in Court Proceedings, Discussion Paper, (1996).
 Editorial, The Weekend Australian, 5-6 September 1998, at 18.
 (1992) 175 CLR 1.
 (1996) 187 CLR 1.
  HCA 20; (1995) 183 CLR 273.
 (1948) 76 CLR 1.
  HCA 5; (1951) 83 CLR 1.
 "Mugger--What the judge said", The West Australian, 21 September 1998, at 6.
 Whitton, "They shoot the messengers, don't they?", The Australian, 21 September 1998, at 13.