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The Judiciary and the Press AUSTRALIAN Press Council Vol. 17, No. 2. May 2005 ISSN 1033-470X The Judiciary and the Press Richard Ackland’s 2005 Australian Press Council Address and Justice Ron Sackville’s response discussed the strained relations between the judiciary and the press. JACK R HERMAN reports on Ackland’s Address. Sackville’s response will be reported on next issue. ichard Ackland, a journalist such as drunkenness, drowsiness, was “co-equal” in concept with Parliament specialising in reporting the law, depression, tardiness, rudeness are things and the executive; Chief Justice Gleeson R delivered the 2005 Australian that are quite acceptable in journalists, maybe said something was going to be done Press Council Address, Much Ado About even compulsory, but are out of bounds for about lawyers speaking out to the media; Nothing – the True State of the Judicature, judges.” Justice Sackville argued that the intensity on 31 March at a lunch in Sydney’s He referred to a number of recent cases of and degree of media attacks on judges is Swissotel. Justice Ron Sackville of the judges speaking out off the bench. He now much greater than used to be the Federal Court gave a response to the suggested that “the golden thread” running case; and Justice Kirby suggested that Address. The Address is an annual event, through the remarks was “the independence adequate resources for the courts and with the Council inviting a prominent adequate pay for the judges were factors speaker to present a talk related to the of the judiciary, its sacredness, its importance in the doctrine of judicial independence. freedom and the responsibility of the press. to the proper functioning of democracy and Previous Addresses have been delivered how it is under threat like never before.” Ackland’s most immediate response to all by NSW Chief Justice Jim Spigelman and Included in his purview were an interview of this was to say, ‘What on earth are they News Limited CEO John Hartigan. by the Chief Justice of Victoria Marilyn on about?’ Warren; a lengthy report of the farewell Ackland noted that, after reading a whole “Part of the problem, I believe, is that address by Justice John D. Phillips from the series of recently presented talks, judicial notions of independence have Court of Appeal; a Gold Coast speech from interviews and speeches from judges, he’d become inflated and have now assumed a Chief Justice Murray Gleeson (and eight come to the conclusion that the judiciary is proportion that is unrealistic and in fact one-on-one interviews he gave); a 7.30 as prone as any other interest group to never existed. “overstating its case, over-egging its Report interview by Justice Sackville; and “Far from judicial independence being pudding and claiming immunities, speeches by Justice Michael Kirby and the privileges and perquisites that are beyond Chief Justice of Queensland, Paul de Jersey. under attack from governments and the its due. “Apart from the threats to independence media, it has actually now more robust than it has ever been. “Contrary to popular belief, the media and the need for judges to be remote,” said does not pose a threat to judicial Ackland, “the other main topics were “In their shy, remote, supposedly independence by criticising these ambit governments not granting pay rises to judges unworldly way, judges have done a claims. in the face of findings by the Remuneration brilliant job at seeking to occupy expanded “In case it might be thought infra dig for a Tribunal and the evils of appointing acting new living space, in the name of journalist to be lecturing about judges I judges.” independence.” should preface these remarks by saying According to Ackland, Justice Phillips The speech then turned to the particulars that all the usual human shortcomings claimed that the Victorian Supreme Court of the judges’ concerns as expressed in Conference: News Media and the Law Victoria University Law School, Melbourne, Thursday 23 June and Friday 24 June 2005 Debates and discussions on the future of the news media (newspapers v the Internet); new definitions of journalism (the rise of the blog); cross-media ownership; public broadcasting and the debate on democracy; legal developments affecting newsgathering; the use and abuse of defamation law; the impact of regulation and self-regulation on independence; access, including FoI and suppression orders. see page 11 for registration and inquiry details 2 Australian Press Council News, May 2005 the cited speeches and interviews. the newspapers in the courts when they seek a remedy for their On the appointment of Acting Judges in Victoria, which he saw hurt feelings.” as having a long history, Ackland argued that “What has happened “There have also been some excellent stories. The Daily Telegraph here is that self-interest has become conflated with constitutional had the news about Judge Dodd in the District Court falling asleep independence.” while sitting on a case. ... On judges’ pay: “Judges might think they are different, ultimately “The paper went on to publish a bold story with pictures of Jeff though they still have to compete for funds with all the other Shaw, Ian Dodd and Vince Bruce, captioned respectively, ‘drunk officers and agents of the Crown who provide services to the … drowsy … depressed’. ... public. By comparison with other professionals on the public “The Australian had the story about the very slow Family Court purse judges are far from underpaid.” judge in Tasmania and the 66 judges who were between one and On the ‘revolutionary suggestion’ from Justice Phillips that State seven years behind lodging tax returns. courts are co-equal with government and parliament. “This is “Those were perfectly legitimate stories and for judges to say that bold grab to extend the concept of independence. they represent attacks on them is to suggest they should never be “To talk of State courts being co-equal, and that any threat to that criticised for drunkenness, slowness or being late with their tax.” co-equality undermines judicial independence, has to be bunkum.” And Ackland did not find the judges’ responses entirely convincing. Richard Ackland then turned to the question of “media attacks” He sees the judges as wanting to engage, but they don’t want to on judges, particularly the suggestion that the greater intensity engage too vigorously for fear of dimming ‘the blaze of glory’ that and degree of such attacks made life less attractive for judges. Justice Wilmot claimed in 1765 surrounds the courts. Among the examples he cited was a series of articles in The So is the media a danger to the judiciary and its claims of Australian before Christmas in which it was claimed the courts independence and to the delivery of justice itself? with the longest holidays have “the biggest criminal case stockpile”. (“In fact”, he said, “on a finalisation basis, the supreme court with Richard Ackland noted, “Whole rafts of law are designed to the shortest holidays, Western Australia, had a far lower rate of constrain media coverage in an attempt to protect the sanctity of finishing criminal cases than the court with among the longest the system. The boundaries are constantly being expanded.” He holidays, NSW.”) cited the latest effort urged upon the NSW government by the court: an extension of the normal protection of the identity of A number of other articles were also mentioned including The children in criminal proceedings to a prohibition on naming dead Australian’s articles on the Jeff Shaw case; and a couple of cases children. And judicial concerns that potentially prejudicial material where successful defamation cases have been mounted: the could be discovered by jurors on the Internet. Popovic case in which a Melbourne magistrate successfully sued the Herald-Sun for defamation arising from a column by Andrew “What [the judge] came up with was that the Crown in any Bolt, and Pat O’Shane’s successful suit against The Sydney pending case should ‘carry out searches on the Internet and, in the Morning Herald over a piece by its former right wing columnist event that prejudicial material is identified, to request any Janet Albrechtsen. (The appeal against the verdict of $220,000 Australian based website to remove it until the trial is completed.’ damages was reserved in the latter case at the time of the speech.) “This is a pretty serious challenge to the freedom to publish and Ackland saw “something unsettling about judicial officers claiming of course it leaves gapingly open the question of what to do about the high ground of remoteness while at the same time engaging websites viewable here that are hosted offshore.” Citing 2002 figures Ackland looked at the causes of trials being aborted: 43 per cent were due to the introduction of inadmissible evidence; twenty-one percent arose because of juror knowledge of a particular participant in the trial; eleven percent because of INSIDE THIS ISSUE some problems with witnesses; judges misdirections or mistakes accounted for four percent. Prejudicial publicity by the media: •Media and the courts 1 one percent. A report on the 2005 Annual Address “It would seem that everyone else is doing more to botch the • Press Council News 3 sanctity of the system than the journalists.” News and information about the News by email; He concluded, “Judges stressing about their status, authority and a new Council member; a re-affiliation; a perquisites is quite needless, as is the belief that the media is the guideline on payments; World Press Freedom Day; main threat to their privilege. the Annual Address; the Ballarat visit; submissions on court proceedings, ASIO, national security “The Judicial Commission should be beefed up to engage on these and Privileges; tobacco advertising; letters issues.
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