The Courts and the Media: What Reforms are Needed and Why

Yesterday, as my humble contribution to the debate about the role of the judiciary in Ghanaian democracy, I shared an address delivered by the Hon. Murray Gleeson AC, Chief Justice of New South Wales, at the Judicial Conference of Australia's annual symposium, on 8th November 1997, in Sydney, Australia.

Today, for the same purpose, I am also sharing a paper delivered at the same symposium, entitled "The Courts and the Media:

What Reforms are Needed and Why" by the Honourable Daryl Williams AM QC MP, the Attorney-General for the Commonwealth of Australia, at the time it was delivered by him at the symposium.

Apart from breaking up some of the paragraphs to make it easier to read on the blog, no editing whatsoever has been done. Please read on:

"Introduction

Relationship Between the Media and the Courts

Information about the Courts

The Judicial Process

Judicial Conference

Commonwealth Study on Judicial Independence

AIJA Study on Courts and the Public

Media Coverage of Judicial Decisions

Factual Inaccuracies

Personal Attacks

The Nature of Decision Making

Roles of the Judiciary, Executive and Legislature

Conclusion

Introduction

This forum would not have taken place 20 years ago. It is evidence of remarkable changes that have taken place in attitudes in recent times.

All our institutions have been opened up to critical scrutiny. The community demands accountability of those in public office.

There have been similar panels held, not only in Australia, notably at the recent conference of the Australian Institute of Judicial Administration, but also overseas.

We are seeing in Australia not an isolated phenomenon, but a world-wide increase in demand for information about, and accountability of, democratic institutions.

The judiciary is one of those institutions being carefully scrutinized by its public. As the Chief Justice of the High Court of Australia, the Honourable Murray Gleeson AC, said recently: "We live in an age of accountability.

What is required of judges is changing. That is a good thing, but it does not make life easier for judges."

I propose first to focus on the relationship between the courts and the media. Secondly, I will distinguish the different types of information that the media conveys about the courts, such as:

information about the judicial process generally; and information (and criticism) about specific judicial decisions.

My argument will be that the courts and the media must adopt different approaches, depending on the information they are conveying to the public.

Relationship Between the Media and the Courts

It is a fact of life that the courts and the media do have a relationship. A similar panel discussion in the United States was entitled "Shall We Dance?"

One of the participating judges observed that it was too late to ask such a question.

Justice Femia remarked that: "These are the 1990s, and we're dancing whether we like it or not."

It is no secret that the relationship is an uneasy one. I suggest that this is because the roles of the judiciary and the media are very different.

Not only are these roles different, I do not think each understands the other's job. Ultimately, they should both be acting in the public interest, serving the community.

Their responsibilities are owed to the community, not to each other. Further, the obligations the courts and the media owe to the public are quite different.

The role of the courts is to uphold the law fairly and independently. Judges maintain the rule of law, uphold the Constitution, and administer civil and criminal justice according to the law.

The judiciary is granted unique conditions of service to achieve this aim. It is guaranteed tenure and salary.

It is not dependent on any group or body in society, least of all the executive which appoints it.

It stands between the citizen and the state and maintain the lawful balance of power between the executive, the legislature and the citizen.

The term "judicial independence" is used frequently, and sometimes inappropriately, when describing the role of judges. It is helpful to remember the explanation of judicial independence proffered by the former Chief Justice of the High Court, the Honourable Sir Anthony Mason AC KBE. He said that:

...judicial independence is not a privilege enjoyed by judges, although judges sometimes mistakenly encourage that notion by invoking the privilege as if it were their own.

Judicial independence is a privilege of, and a protection for, the people. It is a fundamental element in our democracy, all the more so now that the citizen's rights against the state are of greater value than his or her rights against other citizens.

However, as I have stated elsewhere, the principle of judicial independence is consistent with the requirement of judicial accountability. Both are aspects of the duties owed by the judiciary to the community.

There are significant restraints on the judiciary. It does not set the judicial agenda. It does not choose which cases or subjects will come before it for decision.

Even in the limited circumstances of the High Court's decisions on granting special leave to appeal, the subject matter before the court is controlled by litigants.

The information on which decisions are based is dictated by the requirements of the adversarial system and the rules of evidence governing proceedings.

The media, on the other hand, has a very different job. It has obligations of accuracy, fairness and objectivity.

It must also entertain and produce profits for its owners. It has a responsibility to understand the legal processes only to the extent necessary to fulfil these obligations.

There are also significant restraints on the media in its ability to grasp the complexity of court proceedings. The media works within extremely tight time frames.

Not all papers can have full time court reporters. While we are well served by some specialist reporters, many reporters are not legally trained and legal reporting is only one aspect of their portfolio.

There may not be continuity in the allocation of court reporting within a newspaper and young reporters, with insufficient knowledge of the legal system, may be appointed. The articles, even on lengthy, complex cases, must be absurdly brief.

They must mould a decision into a newsworthy item. It is not hard to see how accuracy and completeness may be casualties.

The media is interested in newsworthiness. It will rarely publish the success stories. It usually reports when the judicial process is either not functioning well or when it appears to clash with other branches of government--notably the legislature.

What should the courts do for the media? The courts should help the media understand their processes. This is not because they owe the media anything.

On the contrary, the judges, by the oaths they take on assuming judicial office, must perform their duties without fear or favour to any person or group.

The courts should provide information because they are the most competent body to do so and because the public is entitled to the most accurate information possible.

What should the media do for the courts? The media should simply fulfil its duties to the public of fair and accurate reporting. It is not qualified to be a spokesperson for the judiciary, and nor should it be.

The courts themselves have to maintain and enhance public confidence in the judiciary by the quality of their work.

The accountability of the courts and the media differs enormously. The courts are accountable to the community by the requirement that their duties be performed in public and are publicly reported, and by the appeal process.

In the case of courts which have separate financial administrations, such as the High Court, the Federal Court and the Family Court, they are responsible for, and must account publicly in annual reports for, the proper expenditure of significant amounts of public moneys.

As for the media, why should it be held accountable? I quote the rationale provided in the report of the Ethics Review Committee, Media Entertainment and Arts Alliance (MEAA) Australian Journalists' Association Section:

In a democratic society no power is legitimate unless it is accountable. Journalists have a special obligation to be accountable, because it is they who claim to be one of the main methods for holding to account, on behalf of the public, others who wield power.

If the public becomes convinced that journalism will not accept accountability, and is hypocritical as well, then gradually the media will be perceived as illegitimate, as lacking in credibility, as being unworthy of trust.

When people don't trust you, they can't rely on you. Journalists cannot fulfil their responsibilities to the Australian community unless it relies on them.

Without that reliance, democracy suffers, and eventually freedom wanes.

We are not saying that doom is nigh. We are saying the stakes are high.

How is the media held accountable? Short of the sanctions of defamation and contempt laws, accountability is governed by and large by self regulation.

In his foreword to that report, Father Frank Brennan SJ AO, Chair of the MEAA Ethics Review Committee, highlighted some of the accountability problems. They were:

journalism is a self regulating profession in which most practitioners are not self employed;

the stock in trade is free speech practised in a world of revolutionary technological change; and

half the journalists are not members of the union that formulates the code of ethics.

The report makes recommendations to improve accountability, such as the inclusion of non-journalist members on the committees which hear complaints, an escalating scale of penalties for breaches of the (recommended revised) code of ethics and publication of decisions on such breaches.

The report also notes that there are many media self regulation systems other than that used by the MEAA, such as the Press Council, in-house systems and the commercial broadcasters' codes of practice.

While the report did not review the effectiveness of these other systems, it said that:

...we have highlighted the importance of a combined effort by MEAA members and employers to improve media accountability. Several practical initiatives will work effectively only if they co-operate.

We see no reason in principle why the commercial, national and community broadcasters could not also establish better liaison among themselves and with publishers and the MEAA.

Consistency of standards, decisions and shared expertise would improve media accountability, in particular in an industry characterized by a highly mobile workforce.

This is not the occasion for elaboration, but the adequacy of media accountability mechanisms is open to question.

Information about the Courts

The Judicial Process

It is appropriate to distinguish two different types of information the media conveys about the courts. Firstly, there is information about the judicial process.

This is general, educative material about the judiciary. Secondly, there is reporting of particular decisions. Different considerations apply to these different categories.

My argument is that the courts and the media should take different approaches to these different situations.

We would all agree that the judicial process will not headline the evening news. It does not have the immediacy required for short term news stories.

It is also a very complicated story. It involves explaining the separation of powers, the interlocking relationship between the legislature, the executive and the judicial arms of government.

It includes the constitutional basis for judicial powers, including issues of tenure and terms of appointment.

There is the added complication that we have separate Commonwealth, State and Territory courts and tribunals. This is hardly the stuff of the 30 second grab.

Nevertheless, the community has a right to this information. Who is best placed to deliver it? I would say the courts themselves. It is not the role of the media.

The courts are already pro-actively performing this precise community education role. Judges have for many years considered it appropriate to address conferences and other educational forums. The courts have their own annual reports and home pages on the internet.

Many have appointed media liaison officers and have conducted user forums. Some judicial officers have agreed to interviews with the media.

Professor Parker has summarised these initiatives in his report, "Courts and the Public" Dr Wood, in the publication "Judicial Ethics", stated that:

Judicial officers are valuable contributors to public education and debate on legal matters. Although some hold that judicial officers should generally remain silent, others believe that they should be encouraged to speak and write informatively about matters concerning the law, the legal system, and the administration of justice. Groups addressed might include meetings of community service clubs, press club luncheons, and university students.

This may be seen more as an extension of the judicial role--or even an integral part of it--rather than a departure from it.

As Professor Parker acknowledges in his report, the courts have initiated many of these developments themselves, with enthusiasm. Many courts and tribunals have produced helpful materials for the public to explain their jurisdictions.

This is an ongoing process. For example, I understand that the "Guidelines for the Media" published by the Western Australian Courts in 1996 is being revised.

I understand that the South Australian Supreme Court is also producing a media handbook. Such reforms are a matter for the courts themselves.

However, if the courts develop a good working relationship with the media, this information can be provided to the public even more effectively.

The topic for this particular session invites the question-- who or what should be reformed? It would be inappropriate for politicians, academics or the media itself to try and impose reforms on the courts concerning their relationship with the media.

It is important to remember that the independence of courts is a crucial feature of their credibility and the vitality of the democratic process generally.

Having said that, the presence of so many senior members of the judiciary at this forum reinforces my earlier observation that the judiciary is not only aware of its duties to the public in providing information, but embraces them enthusiastically.

The reforms I have referred to above have been initiated on a court by court basis, and there is a place for them in specialist jurisdictions.

However, I have many times expressed the view that the Australian judiciary, and the community, would benefit enormously by hearing a representative voice for all the judiciary.

Judicial Conference

I would like to see the Judicial Conference of Australia emerge as this representative voice for the judiciary on broader questions that arise in relation to the judiciary as an institution.

The Conference could relieve the strain of the responsibility increasingly placed on individual courts or members of the judiciary to present more general judicial views to the public and to the media.

Such a representative body could also be a focus of support from, and liaison with, other key players such as the legal profession.

One of my initiatives in the previous Government was the grant of $60,000 to the Judicial Conference to establish a secretariat so that it will be able to perform these functions.

Another initiative was a grant to the Judicial Conference of a further $40,000 to conduct a research project on "Judicial Independence in Australia Today".

This is a practical research project on the concept of judicial independence and its meaning to the community in a modern democratic society.

The project will provide materials for use by members of the Judicial Conference on judicial independence and the rights and responsibilities it entails for the judiciary.

It will also produce briefing materials for the community, parliamentarians and the media to explain judicial independence.

Commonwealth Study on Judicial Independence

Another practical initiative I have taken has been to initiate a Commonwealth Law Ministers' project on Judicial Independence.

My Department drafted a comprehensive survey on behalf of the London-based Commonwealth Secretariat. Twenty-eight Commonwealth member countries responded.

All Australian courts also provided data which has been included in the results.

The result is a comprehensive database on the judiciary which is located on the internet. The project will benefit not only developing countries and their judiciaries, but add to the easily accessible data on Australian courts.

AIJA Study on Courts and the Public

Many of you will be aware of the important, recent publication of the Australian Institute of Judicial Administration (AIJA) entitled "The Courts and the Public" written by Professor Stephen Parker, to which I referred to earlier in this paper. It was launched at the AIJA conference in Melbourne in September 1998.

I am pleased to say that the report was made possible by a grant of $50,000 by my Department. It represents a significant addition to Australian research on its courts. In particular, the study is about how we can improve relationships between Australian courts and their public.

Media Coverage of Judicial Decisions

I have discussed appropriate ways the courts themselves can contribute directly to the community's education about judicial process. The more problematic area is media reporting of particular decisions and court proceedings.

Undoubtedly, this is where tensions emerge between the courts and the media.

I want to highlight three different situations and suggest appropriate responses. These are:

firstly, where factual inaccuracies occur in press reports, either about the facts of a case or about a courts's processes;

secondly, where a criticism of a judicial decision becomes a personal attack on a judge or a number of judges; and

thirdly, where the criticism becomes an attack on a court, such as the accusation that a court is making policy, not law.

(There are, of course, other situations where the nature of appropriate responses may differ.)

Factual Inaccuracies

Firstly, where criticism is based on a misunderstanding of the law or on inaccurate reporting of a case, it is entirely appropriate, in my view, for a court to correct public misunderstanding by dealing with the media directly, either through its Chief Justice, media liaison officer or chief executive officer.

Such occasions can be a valuable opportunity to raise community awareness about legal issues and the functioning of the court system.

For example, judges could use the occasion to explain the rationale for judicial reticence in commenting on judicial decisions generally.

The public interest in judges generally refraining from commenting on decisions will not be supported by the public if it does not understand the rationale behind it.

Criticism of a court's administrative processes, at least under the federal system of judicial self administration, seems to be a clear example of a situation in which the courts can and should respond in their own defence.

However, the courts must remember that they do not have the final say. Correct information supplied to the media may not necessarily be printed.

Courts need to take care in seeking to prolong an issue and must be conscious they do not control the forum.

Personal Attacks

Secondly, and most seriously, what should courts do when the media attacks judges on a personal level? Unfortunately, this has become more prevalent, not just in Australia, but in many countries.

Personal attacks against individual judges are likely to undermine public confidence in the judiciary and thereby damage the legitimacy necessary to its effective functioning as the third arm of government.

The former Chief Justice of the High Court, the Honourable Sir Gerard Brennan AC KBE has said that the judiciary has public confidence as its necessary, but sufficient, power base.

In this situation, it is appropriate for not only a court itself, but also the Judicial Conference and the leaders of the legal profession, to respond to such criticisms.

In some situations it may be appropriate for the Attorney-General to respond, such as where the report is of an attack on the judiciary conducted under parliamentary privilege, a venue which the judiciary has no other means of addressing.

We must bear in mind that there is a great deal at stake for our community if public confidence in the judiciary is unnecessarily eroded by sensational, personalized attacks.

Our remarkably stable democracy can be attributed in no small part to the community's acceptance of the legitimacy of our courts to maintain the balance between the executive, the legislature and the community.

The Nature of Decision Making

The third situation I wish to address is where courts are criticized because they are perceived by the media, or by others who are reported in the media, as making, not applying, the law. This has applied particularly to the High Court.

Mabo, Wik and the so-called implied rights decisions of the High Court are examples of cases that have attracted significant public criticism.

I do not believe this is solely because of disagreement with the substance of the decisions themselves.

Rather, criticism has been directed at a perceived intrusion of the court into areas of law making rather than adjudication.

I do not subscribe to the view that judicial decision making is a task free of interpretive activity.

The common law is not a static entity but is clearly a dynamic living thing that develops as new problems are put before it, and as new standards develop in our legal and social worlds.

Many judges have explained this and I think it is appropriate for them to do so. However I do not believe it is universally understood.

This is also an appropriate task for the Judicial Conference and the leaders of the legal profession. The media also has a responsibility to convey this reality to the community.

This role of the High Court has been emphasized since the reforms in the 1980s, when the appeal processes were changed.

Now, generally, civil appeals can only go to the High Court by special leave, not as of right. The Chief Justice of the High Court has explained one consequence of this reform as follows:

...the result has been that most civil appeals before the court are cases in which at least one party intends to argue that established common law principles should be modified or changed, or that existing precedents should not be followed.

A court whose business consists largely of dealing with cases of that character is more likely to take on the appearance of being radical, not necessarily by reason of the disposition of the members of the court, but by reason of the nature of its business.

The more significant a judicial decision, the more important it is that the community, including the media, understands that decision. The media has a role to play in reporting not just the decision, but the reasoning behind it.

Even allowing for the significant restraints on the media I have referred to above, this is not a role it is performing well.

For example, Dr Robert Austin (now Justice Austin of the Supreme Court of New South Wales) observed that the press summarised 217 pages of legal reasoning in the Wik decision "by and large, in a sentence".

He also said that: "Readers could not possibly have gained an impression that the judgments of the justices were supported by extensive and careful legal reasoning."

As I have already indicated, the media is unlikely to summarize complex decisions accurately. Therefore, the courts have a responsibility to make their decisions as understandable as possible.

Several suggestions have been made. For example, I agree with the views of Chief Justice Gleeson that the style of judgments and the necessity for reserved written judgments should be reconsidered.

Secondly, I agree with calls that have been made for the provision by the courts, where considered necessary, of summaries of judgments.

Thirdly, I have expressed the view previously, and will do so again, that the members of courts, particularly the High Court, should consider, wherever possible, publishing joint reasons for decision.

It is difficult enough for learned constitutional lawyers to analyze seven separate decisions in an important case, let alone a journalist on a tight deadline, or a member of the community.

Roles of the Judiciary, Executive and Legislature

I have attempted to defend decisions of the High Court, which have been mistakenly branded as judicial legislation, as legitimate exercises of judicial power.

As I have stated above, it is appropriate also for a court to defend its decisions if they have been erroneously reported, trivialised by personal references or if the media has misrepresented the nature of the judicial role.

However, we must be clear about the parameters of the judicial role. It is another matter entirely for a judge to use the media to convey views on policy which is rightly the domain of the legislature and the executive.

In the public's eye, there is no such thing as a judge's personal view on a matter of policy.

Judges should always refrain from expressing such views publicly. Just as politicians should refrain from personal attacks on our judges, which undermine public confidence in the judiciary, so should judges respect the territory of the executive and the legislature.

It is readily apparent that such mutual restraint is necessary for the healthy balance between the three branches of government.

Ultimately, all three are serving the public interest. That public interest demands a mutual appreciation of the limits of each other's roles.

Conclusion

The relationship between the media and courts is an uneasy one. This is partly because of misunderstandings about each other's roles.

Also, it is partly because both the courts and the media should be serving the public interest, but they do this in different ways. Their responsibilities are owed to the community, not to each other.

Courts are attuned to the need for changes. They should assume, and have assumed, responsibility for explaining their processes and role. Reforms are taking place in the courts' attitudes to the media. These reforms are consistent with courts maintaining their necessary independence.

There is also room for improvement within the media. It could refrain from personalizing criticism of judgments, explain reasoning behind judgments and resist the temptation to simplify and sensationalize its court reporting. It could improve its methods of implementing accountability.

It is appropriate for courts to respond to inaccurate factual reporting, personalizing of criticism and misreporting of their function.

Different situations call for different approaches and the media retains ultimate control over the messages the judiciary seeks to convey through the media.

The judiciary should also be aware of the appropriate parameters within which it should use the media.

Politicians and the media should not attack the judiciary on a personal level and judges should avoid venturing into the domains of the executive and legislature.

An expanding dialogue with the media through such forums as this is very constructive. This forum is not about finger pointing.

Rather, I see it as a mutual commitment to providing the public with a better quality of information about its institutions.

We will be on the right path if we bear in mind that both the third branch and the fourth estate are required to serve the public interest."