INTRODUCTION

2.1 Our terms of reference require us to inquire into and report on whether sound recording of court proceedings and the proceedings of Royal Commissions and Special Commissions of Inquiry should be permitted by persons other than representatives of the news media, intending authors of books and articles, parties to court proceedings and their legal representatives and persons authorised to appear before a Royal Commission or Special Commission of Inquiry and their legal representatives. Our original terms of reference only allowed consideration to be given to recording by “representatives of publishers and broadcasters” however, as a result of suggestions made by our consultants, the terms of reference were widened to allow consideration inter alia, of this subject. We shall limit our discussion in this chapter to whether members of the public should be permitted to use sound recorders to record the proceedings of courts and commissions.

THE PRESENT LAW

2.2 Under the existing law in New South Wales, a member of the public attending the proceedings of a court or commission may make an application to the judge, magistrate or commissioner to use a sound recorder to record the proceedings. The authority of the judge, magistrate or commissioner to grant or reject such an application proceeds from the inherent jurisdiction or power of the court or commission to control its own proceedings. It is stated in Halsbury’s Laws of England that:

“A court exercising judicial functions has an inherent power to regulate its own procedure, save insofar as its procedure has been laid down by the enacted law....” ¹

Writing in 1970, Master I.H. Jacob of the English Supreme Court defined the inherent jurisdiction of a court as:

“... being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary when ever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression to do justice between the parties and to secure a fair trial between them.” ²

The juridical basis of inherent jurisdiction is:

“... the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.” ³

2.3 With respect to the limits that circumscribe the inherent jurisdiction of courts, the New South Wales Court of Appeal has stated that “the inherent jurisdiction could not exceed what is necessary for the administration of justice” and that inherent powers “are recognised and exercised because they are necessary for the administration of justice”. ⁴ In our report, ⁵ we examined whether a judge or magistrate may make a valid order prohibiting the use of a sound recorder where there is no evidence that its use would interfere with the administration of justice. Our view was that such a ruling should only be made if the use of a sound recorder in a particular case has actually interfered with the administration of justice or if there is good reason to believe that use of a recorder, if allowed, will constitute an interference with the administration of justice. On this basis, sound recorders could reasonably be prohibited or restrictions placed on their use if, for example, the noise of their operation made it difficult to hear witnesses or if there were reason to believe that the recording would be used to influence future witnesses in a proceeding. if there were no interference or threatened interference with the administration of justice, there would be no basis for prohibiting the use of sound recorders.

2.4 Royal Commissions, like courts, have inherent power to regulate their own proceedings and to determine the manner in which the inquiry is to be conducted. ⁶ There is no statutory basis for this power in the New South Wales Royal Commissions Act, 1923, although in some other States, the power of Royal Commissions to regulate their own proceedings is contained in legislation. For example, in South Australia, section 7 of the Royal Commissions Act 1917 (S.A.), provides that Royal Commissioners:

“...in the exercise of any of their functions or powers, shall not be bound by the rules or practice of any court or tribunal as to procedure or evidence, but may conduct their proceedings and inform their minds on any matter in such manner as they think proper.” ⁷

The High Court has stated with respect to Royal Commissions appointed by the Commonwealth Government that the manner of the conduct of their inquiries “is entirely unfettered, either by statute or by executive direction.” ⁸

2.5 Clearly a body that has extensive power to control its own proccedings, including a Royal Commission may make an order that a sound recorder not be used to record the proceedings. Special Commissions of Inquiry, like Royal Commissions, have inherent power to control their own practice and procedure. We observed in our report that Special Commissions of Inquiry are a very recent form of government inquiry in New South Wales, the enabling legislation being passed by Parliament in November 1983. ⁹ It is to be noted that a Commission under the Special Commissions of Inquiry Act, 1983, may contain directions “relating to the practice and procedure to be followed in the conduct of the Special Commission to which it relates. ¹⁰ (no such limitation is evident in the Royal Commissions Act 1923). Any such direction may, for example, specify the means by which representatives of the news media may record the proceedings of the Special Commission of Inquiry. This power has not been exercised by the Executive Government with respect to either of the two Special Commissions that have concluded. ¹¹ The matter has thus been left to the discretion of the presiding Commissioner. ¹²

ARGUMENTS FOR AND AGAINST THE USE OF SOUND RECORDERS BY MEMBERS OF THE PUBLIC

2.6 Any argument in support of allowing members of the public to use sound recorders to record the proceedings of courts must use as its starting point the principle that justice is to be administered in open court. In a recent case, Home Office v. Harman, ¹³ Lord Diplock said:

“...justice in the courts of England is administered in open court to which the public and press reporters as representatives of the public have free access and can listen to and communicate to others all that was said there by counsel or witnesses.” ¹⁴

In an earlier case, Lord Diplock stated that the application of the principle of open justice has two aspects:

“...as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.” ¹⁵

The reason for allowing the public to have access to the courts was stated by Lord Atkinson in the leading case Scott v. Scott:

“The hearing of a case in public may be, and often is, no doubt, painful humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trials is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.” ¹⁶

2.7 The Australian cases concerning the access of members of the public to courts have treated the decision of the House of Lords in Scott v. Scott as authoritative. Thus, in 1913, an application to the High Court by motion that an appeal in a matrimonial matter be heard in closed court was refused on the authority of Scott v. Scott. The Acting Chief Justice, Sir Edmund Barton, with whom the other four judges comprising the court concurred, said:

“...there is no inherent power in a Court of justice to exclude the public, in as much as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings.” ¹⁷

2.8 Similarly, a decision to deny the public access to a criminal trial on the basis that unsavoury evidence was to be presented led to the quashing of the conviction by the Supreme Court of New South Wales. ¹⁸ Following Scott v. Scott, the Chief justice stated that “the only consideration to which the rule as to publicity yields is the paramount duty of the Court to secure that justice should be done.” ¹⁹ The fact that publicity is an essential element of the principle that justice is to be administered in open court has been emphasised by the present Chief justice of New South Wales, Sir Laurence Street:

“it is a deeply rooted principle that justice must not be administered behind closed doors - court proceedings must be exposed in their entirety to the cathartic glare of publicity. There are limited exceptions to the observance of this principle but these are well defined and sparingly allowed. Statutes are made by public processes. They are judicially administered in public proceedings. It is only thus that the right of representation and of due hearing of all legitimate submissions can be seen to have been accorded to parties subjected to the judicial process. Moreover publicity of proceedings is one of the great bastions against the exercise of arbitrary power as well as a re-assurance that justice is administered fairly and impartially.” ²⁰

2.9 There are, of course, exceptions to the principle that justice must be administered in open court, but any decision to conduct proceedings in the absence of the public “must depend not on judicial discretion but the demands of justice itself.” ²¹ In Scott v. Scott, the House of Lords stated:

“... it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield.” ²²

Apart from this limited power in all courts to hold proceedings in camera (that is, in the absence of the public) some statutes confer a discretion on courts to hold proceedings in camera in specified circumstances. This may occur, for example, with committal proceedings before a magistrate in New South Wales or at any hearing or trial in a children’s court. ²³

2.10 The importance attached to the principle of administering justice in open court was recently demonstrated with respect to proceedings in the Family Court Until November 1983, proceedings in the Family Court were held in closed court Section 97(1) of the Family Law Act 1975 (Cth) now provides:

“Subject to sub-section (2) and to the regulations, all proceedings in the Family Court, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, shall be heard in open court.”

As an exception to this rule, the court has power to make an order, inter alia, that only the parties to the proceedings, their legal representatives and such other persons (if any) specified by the court may be present in court during the proceedings or during a specified part of the proceedings. ²⁴ The provision that proceedings under the Family Law Act 1975 (Cth) be held in open court was enacted following the recommendation of both the Family Law Council ²⁵ and the Joint Select Committee on the Family Law Act. ²⁶ In the second reading speech on the Family Law Amendment Bill 1983 (Cth), the Attorney-General, Senator Gareth Evans, stated:

“It is this Government’s view that much of the largely misconceived criticism to which the Family Court has been subject particularly in recent times, should disappear when the court is open to the public and details of its operation in particular cases can be published. This, it is to be hoped, will enable better understanding of the way the court operates, and will promote an informed and constructive debate on the future development of family law.” ²⁷

2.11 In the Commission’s report on this reference, it was observed that both representatives of the news media as well as members of the public, have the right to take written notes in court. Thus, the English Court of Appeal, when considering whether privilege attached to a transcript of shorthand notes taken of proceedings in a county court, stated:

“... the proceedings in the county court were public. Any one present could listen and take a note of what the witnesses said.” ²⁸

More recently, Lord Diplock, in a decision handed down by the House of Lords, stated that justice is to be administered in open court where anyone present may listen to and report what was said.” ²⁹ He emphasised that one aspect of this principle:

“... is that any document or portion of a document that is read out orally in open court can be taken down in shorthand by anyone competent to do so and can be published as part of a report of the proceedings in the court, even though after it has been read aloud it turns out that it ought not to have been because it is later ruled to be inadmissible in evidence.” ³⁰

2.12 We also observed in the report that this right is not always recognised in practice and members of the public have been asked or directed, both by judges and court officers to desist from taking notes in court without reason being given. Yet in the recent case New South Wales Bar Association v. Livesey ³¹ both Hope J.A., and Reynolds J.A., of the New South Wales Court of Appeal stated during the proceedings that they could not understand why some judges have objected to members of the public taking notes in court. ³² Obviously a judge may prevent a person in court taking notes if he or she has reason to believe that they will be used improperly, for example, to influence future witnesses in the proceedings. However, the authorities clearly state that members of the public (and this includes interested observers, law students and persons who intend to write books or articles) are entitled to take written notes during court proceedings that are open to the public. This is an essential element of the principle that justice must be administered in open court where:

“... members of the public, including, of course, journalists and reporters, have access to the trial and to the transcript of proceedings, and may, subject to the law of defamation and copyright, publicly report, discuss, and comment on what has, through the trial entered the public domain.” ³³

2.13 If a sound recorder is to be used by a member of the public in substitution for, or in addition to, handwritten notes, there may be persuasive reasons for allowing such a person to use a sound recorder. in England, section 9 of the Contempt of Court Act 1981 allows any person to apply to the court for leave to use a sound recorder to record the proceedings. ³⁴ The fact that members of the public may have sufficient reason to be permitted to use sound recorders was acknowledged by the Attorney-General during the Parliamentary Debates:

“...I believe that there are many occasions when counsel, solicitors, the parties and certain members of the public with an interest in the action or proceedings should properly be allowed to use tape recorders.” ³⁵

However, the Phillimore Committee Report, upon which the legislation was based, stated that:

“Leave should not normally be given except to the parties to the proceedings and their legal advisers, and to members of the press as a substitute for short-or long-hand notes.” ³⁶

2.14 During the Parliamentary Debates on the Contempt of Court Bill 1981, a new clause was moved by the House of Commons Standing Committee which, if enacted, would have allowed any person to use a sound recorder as of right where the proceedings are taking place in public, thus obviating the need to obtain the leave of the court. ³⁷ In response to the proposed clause, it was stated:

“The public should not have the right to use a tape recorder in a court of law. They are there to see that justice is done. They have an important role as observers. Those who cannot get into court can read a report in a newspaper, so that there is every reason for having accurate reports of court proceedings in the newspapers.

However, that is the limit of the public s activity. They are not participants in the criminal or even civil process. Lawyers do not speak to the public in the public gallery. The public are not invited to come down to express their views. They are silent observers to see that justice is done.” ³⁸

2.15 Yet it may be the case that a member of the public has a particular interest in the proceedings in contrast to the position of a disinterested observer. For example, a member of the public might attend a hearing in the Land and Environment Court concerning a development application for the area in which he or she lives. If this particular interest is to be expressed by way of an intended publication then clearly the person would be entitled to use a sound recorder as of right under the recommendations outlined in our report The question is whether a member of the public not having such an intention should have a right to use a sound recorder. Professor R.G. Nettheim, one of our consultants, was strongly of the view that such a right should exist:

“I, personally, consider that if the concept of ‘open justice’ means anything, it means the right of anyone to attend proceedings and, if they see fit to publish fair and accurate reports of those proceedings. In so far as use of pen and paper - or sound recorder - is an adjunct to the primary rights of observation and report it should be available to all who choose to attend, as a matter of right.” ³⁹

Professor Nettheim further stated that although in a practical sense it may be easier for a court to compel the co-operation of representatives of the news media than members of the public because of the continuing relationship with the former, a balancing consideration is that a member of the public would have less opportunity for misuse of courtroom observations than the news media.

2.16 The news media have traditionally been held to have no greater rights in court than members of the public. ⁴⁰ However, as we noted in our report on this reference, the news media occupy a special role in the process of administering justice in open court. This is based on the fact that the great majority of the public obtain “their news of how justice is administered through the press or other mass media.” ⁴¹ Yet, as one of our consultants argued, although it is no doubt true that most people acquire their knowledge of how justice is administered through the news media:

“It certainly does not mean that anyone who has a specific interest in a case will be able to be usefully informed about it from the media. Such people, if they wish to be properly informed about the case, will in future, as at present have to attend themselves. If they go to the trouble of doing so, I cannot imagine any reason why they should be denied the same right to make their own record as the representatives of the news media.” ⁴²

2.17 In our report we examined several arguments that can be made in opposition to the use of sound recorders in courts and commissions. ⁴³ One of these arguments is that sound recorders may constitute both a nuisance and a distraction to the proceedings of courts and commissions. We stated in the report that while this may have been the situation in the past when such recorders were bulky and cumbersome, sound recorders can now be conveniently hand-held, are simple to operate and unobtrusive and may prove less of a distraction than persons taking handwritten notes. A further argument that can be made against the use of sound recorders is that a sound recording could be used to influence future witnesses in a proceeding. In response, it can be stated that if a recording was used for this purpose, the offender would be guilty of contempt. Witnesses can also be briefed from memory or from handwritten notes, but whether a sound recorder is used or not it is an offence punishable by the court. ⁴⁴

2.18 Both of the above arguments are premised on a supposed interference with the proceedings of courts and commissions. Clearly, no recording should be permitted where there is any actual or threatened interference with the proceedings. The draft legislation appended to the Commission’s report contains a provision that the right to use a sound recorder by “authorised persons”, ⁴⁵ is subordinate to the power of a court or commission to prohibit or order the cessation of the use of a sound recorder where it is reasonably believed that such use constitutes or would constitute a substantial interference with the administration of justice or the functions of the court or commission. ⁴⁶ A similar provision would need to be considered if members of the public were permitted to use sound recorders to record the proceedings of courts and commissions.

POLICY QUESTIONS

2.19 There can be no doubt that there exist circumstances where persons, other than those who are the subject of recommendations in our report, would be advantaged by being able to use a sound recorder. These persons may, for example, include students and others who are undertaking research without the intention of publishing the results at a later stage. The issue on which the Commission therefore invites submissions is whether members of the public should be permitted to use sound recorders to record the proceedings of courts and commissions. If this is answered in the affirmative, it remains to be considered what conditions should be imposed on the use of sound recorders. For example:

• Should the leave of the court or commission have to be obtained prior to the use of a sound recorder by a member of the public? In our report we recommend that certain persons, including representatives of the news media. and parties to litigation and their legal representatives, should have a right to use a sound recorder without having to obtain the leave of the court or commission. However, the right and its exercise would be subordinate to the power of the court or commission to prohibit or order the cessation of the use of a sound recorder where the court or commission reasonably believes that such use constitutes or would constitute a substantial interference with the administration of justice or the functions of the court or commission It may be argued that allowing the use of sound recorders by members of the public without prior approval is incompatible with the control by courts and commissions of their own proceedings.
• Should a member of the public wanting to use a sound recorder have to provide a sufficient reason. For example, that the use of a sound recorder will assist in private research Such a condition was not imposed on those persons who are the subject of recommendations in our report. However, the recommendations clearly restrict the purposes for which a sound recording can be used. Thus, a recording of the proceedings of a court or commission made by a representative of the news media cam under our recommendations, be used only for the purpose of reporting those proceedings in a newspaper, journal magazine or other publication or on a radio or television station. If use of sound recorders by members of the public were permitted, similar types of restrictions, including, for example, a restriction on any broadcast of a sound recording, would need to be considered.
• Should a distinction be made between courts and commissions for the purpose of deciding whether members of the public should be permitted to use sound recorders? No such distinction was thought necessary in the Commission’s report with respect to those persons who it was recommended should be permitted to use sound recorders to record the proceedings of courts and commissions.
• What notification procedures should be devised if members of the public are permitted to use sound recorders?

FOOTNOTES

1. Halsbury’s Laws of England (4th ed., 1975), vol. 10, para. 703. See also K. Mason, “The Inherent Jurisdiction of the Court” (1983) 57 Australian Law Journal 449.

2. I.H. Jacob, “The Inherent jurisdiction of the Court” (1970) 23 Current Legal Problems 23, at p.51.

3. Id., p.28.

4. Riley McKay Pty. Ltd. v. McKay [1982] 1 NSWLR. 264, at p.270.

5. Sound Recording of Proceedings of Courts and Commissions The Media, Authors and Parties (LRC, 39, 1984), paras. 2.28-2.36.

6. L Hallett, Royal Commissions and Boards of Inquiry (1982), p.149. See also M.V. McInerney, “Procedural Aspects of a Royal Commission” (1951) 24 Australian Law Journal, 386, where it is stated: “The mode of conducting the enquiry before the Commission seems to be left for each Commission to workout for itself.”

7. See also Commissions of Inquiry Act 1950 (Qld.), s.17, which is expressed in similar terms.

8. R v. Collins: ex parte ACTU - Solo Enterprises Pty. Ltd. (1976) 8 A.LR. 691, at p.699.

9. Special Commissions of Inquiry Act, 1983.

10. Id., s.5(1).

11. For the reports of the first two Special Commissions, see Report of the Special Commission of Inquiry into Certain Allegations by the Right Honourable Ian McCahon Sinclair, January 1984, and Report of the Special Commission of Inquiry into Certain Allegations by Mr. R Bottom, February 1984.

12. Personal communication with Mr. S. Cole, Secretary, Special Commission of Inquiry.

13. [1982] 1 All E.R 532.

14. Id., at p.536. See also Daubney v. Cooper (1829) 10 B. & C. 237; 109 E.R. 438, at p.440:

“...it is one of the essential qualities of a Court of Justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose,- provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed, - have a right to be present for the purpose of hearing what is going on.”

16. [1913] A.C. 417, at p.463.

17. Dickason v. Dickason (1913) 17 C.L.R. 50, at p.51.

18. R. v. Hamilton (1930) 47 W.N. (N.S.W.) 84.

19. Id., at p.84.

20. R. v. Brady, 29 July 1977, Supreme Court of New South Wales, Court of Criminal Appeal, Street C.J., Transcript of judgment, pp.3-4. See also R. v. Page [1977] 2 NSWLR 173, at pp.174-175, where it is stated by Street C.J.:

“...the judicial process is that which is best calculated to protect the rights of the individual. A public hearing in which all of the relevant ingredients are canvassed, analysed and evaluated in open court, in which the evidence is critically examined, a proceeding involving the presiding judge stating the reasons for the sentence, and, above all the unrestricted publicity of the sentencing process and the sentencing act all combine as a significant protection against the exercise of arbitrary power.”

“It is the ordinary rule of the Supreme Court as of the other courts of the nation that their proceedings shall be conducted ‘publicly and in open view’ (Scott v. Scott). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character To require a court invariably to sit in closed court is to alter the nature of the court” (p.520).

21. Broadcasting Corporation of New Zealand v. Attorney-General [1982] 1 NZLR 120, per Woodhouse P., at p.123.

22. [1913] AC 417, per Viscount Haldane LC., at p.437.

23. See Justices Act 1902, s.32, and Child Welfare Act, 1939, s.16(1). The Child Welfare Act 1939, is to be wholly repealed on a day to be appointed, by the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act, 1982. The Community Welfare Act, 1982, of which only several parts have been proclaimed, will provide that any person not directly interested in the proceedings shall be excluded from the children’s court but that “any persons bona fide engaged in reporting or commenting upon the proceedings of the court for dissemination through a public news medium shall not be excluded” unless the court otherwise directs: s.186(1). Other examples of exceptions to the principle of open justice are discussed in the Commission’s report: note 5 above, para 2.18.

24. Family Law Act 1975 (Cth.), s.97(2).

25. Family Law Council, First Annual Report 1977 (1977), paras. 106- 111.

26. Joint Select Committee on the Family Law Act, Family Law in Australia (1980), Chapter 9.

27. Commonwealth Parliamentary Debates (Hansard), Senate, 1 June 1983, p.1099.

28. Lambert v. Home [1914] 3 KB 86, at p.90. See also the statement by Lord Tenterden C.J. in Collier v. Hicks (1831) 2 B & AD 663; 109 ER 1290, at p.1292:

“Any person, whether he be a professional man or not, may attend [court] as a friend of either party, may take notes, may quietly make suggestions, and give advice.”

29. Home Office v. Harman [1982] 1 All ER 532, at p.537.

30. Ibid.

31. [1982] 2 NSWLR 231.

32. Transcript Record of Proceedings, p.195.

33. Note 29 above, per Lord Scarman, at p.546.

34. Contempt of Court Act 1981 (Eng.), s.9(1).

35. Parliamentary Debates (Hansard), House of Commons (1981), vol. 6, col. 897.

36. Report of the Committee on Contempt of Court (Cmnd.5794, 1974), para. 43.

37. Note 35 above, col.882.

38. Id., col.887.

39. Letter from Professor R.G. Nettheim, Professor of Law, University of New South Wales, 25 October 1983.

40. Arnold v. The King Emperor (1914) 30 TLR 462, at p.468.

41. R v. Denbigh Justices, ex parte Williams [1974] 2 All ER 1052, at p.1056.

42. Letter from Mr. T. Molomby, Australian Broadcasting Corporation, 19 October 1983.

43. Note 5 above, para.5.13.

44. Any attempt to influence a witness in the evidence he or she is about to give in court “is obviously prejudicial to the course of justice since it is likely to jeopardise the fair hearing of the action”: G. Borrie and N. Lowe, The Law of Contempt (1973), p.206.

45. These “authorised persons” are representatives of the news media, authors of books and articles on a subject in respect of which the proceedings are relevant parties to court proceedings and their legal representatives, persons authorised to appear before a commission and their legal representatives and persons appointed by the Crown to assist a commission.

46. Courts and Commissions (Sound Recordings) Bill, 1984, cl.7(3).