INTRODUCTION
3.1 In our report the Commission recommends that representatives of the news media and certain other persons should have a statutory right to use a sound recorder to record the proceedings of courts, Royal Commissions and Special Commissions of Inquiry without having to obtain the leave of the court or commission. A specific condition of allowing the use of a sound recorder is that there shall not be publicly broadcast the whole or any part of a sound recording of the proceedings of a court or commission except with permission of that court or commission.
3.2 As part of our analysis of the broader issues that arise from our terms of reference, we now discuss whether it would be desirable to allow a sound recording of the proceedings of a court or commission to be broadcast over radio and television If filming or video-taping of courts and commissions was not permitted, it would still remain possible for a sound recording to be broadcast on television accompanied by other visual material such as artists’ sketches of the participants in the proceedings.
THE PRESENT LAW
3.3 Any court or commission in New South Wales may, pursuant to its inherent power to control and regulate its own proceedings, allow a sound recording of its proceedings, or an excerpt from the recording, to be broadcast unless there is a statute which provides otherwise. In Chapter 2, we discussed the nature of the inherent powers of courts and observed that they “are recognised and exercised because they are necessary for the administration of justice.” 1
3.4 There is no specific statutory prohibition in New South Wales on the broadcast of a sound recording of the proceedings of a court or commission. However, it maybe that a broadcast will in certain circumstances, be held to be in contempt of a court or commission. Any “act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts” will constitute contempt of court. 2 For example, contempt may be committed if a sound recording of in camera proceedings of a court is broadcast. Both Royal Commissions and Special Commissions of Inquiry have power to punish acts of contempt. 3
3.5 There are precedents in Australia for allowing a sound recording of the proceedings of a court to be publicly broadcast over radio although it is only permitted on rare occasions. One precedent occurred in February 1981 when Mr. D. Barritt, S.M., allowed the news media to broadcast his findings in the first Coronial Inquiry into the Death of Azaria Chamberlain. Another precedent is the broadcast over radio of decisions of the Commonwealth Conciliation and Arbitration Commission in national wage cases. These decisions have also been televised and will be considered in detail in the following chapter.
ARGUMENTS FOR AND AGAINST ALLOWING THE BROADCAST OF A SOUND RECORDING
3.6 A major reason for allowing a sound recording of the proceedings of a court or commission to be broadcast is the public interest in these proceedings. There is a clear public interest in developing an increased understanding in the community of the functions and workings of important institutions in Australian society such as courts and commissions. This is the reason behind the broadcast of proceedings of the Commonwealth Parliament which commenced in July 1946. 4 It is argued that broadcasting these proceedings assists in the political education of Australian citizens. In recommending that the proceedings of the Commonwealth Parliament be broadcast, the Parliamentary Standing Committee on Broadcasting expressed the view in 1945 that broadcasting would “contribute to a better informed judgment throughout the community on matters affecting the common good and the public interest, nationally and internationally”. 5
3.7 It is largely the function of the news media in Australia to assist in developing an increased understanding in the community of the work of courts and commissions. We observed in our report that both the print media and the electronic media have a vital function in disseminating information concerning current events and matters of current public interest such as the work of courts and commissions. In 1982 there were 589 newspapers and periodicals being published in Australia. 6 While most of these publications have limited circulation the national and metropolitan daily newspapers have substantial circulation. In Sydney, for example, the four metropolitan daily newspapers which are published by John Fairfax and Sons Limited and News Limited had a combined daily circulation of almost 1,200,000 copies in March 1984. 7
3.8 In 1983, there were 43 commercial radio broadcasting stations in operation in New South Wales, 28 radio broadcasting stations operated by the Australian Broadcasting Corporation, 14 “public” broadcasting stations and one broadcasting station operated by the Special Broadcasting Service. 8 In the same year, there were 14 commercial television stations in operation in New South Wales, 14 television stations operated by the Australian Broadcasting Corporation, and one television station operated by the Special Broadcasting Service. Of these television stations, three commercial stations, one Australian Broadcasting Corporation station and the Special Broadcasting Service station operate in the Sydney metropolitan area. All others serve non-metropolitan areas of New South Wales. 9
3.9 While the provision of news is the dominant characteristic of newspapers and many periodicals, it is also clear that the provision of news and information concerning current affairs is a significant part of the activities of the electronic media. Two surveys undertaken by the Australian Broadcasting Tribunal of 57 metropolitan radio broadcasting stations indicated that news programs constitute 8.0 per cent of total broadcast programs. For non- metropolitan stations, the percentage is 11.3 per cent. 10 A statistical analysis of television programs undertaken by the Australian Broadcasting Tribunal over a nine week period in 1982-83 revealed that news and current affairs programs constituted 12.1 per cent of all television programs broadcast by metropolitan stations and 11.0 per cent of all programs broadcast by non-metropolitan television stations. 11
3.10 These statistics indicate the important role the media play in the provision of news and information concerning current affairs. It may well be that public understanding of the work of courts and commissions and particular issues being determined by these bodies could be increased if sound recordings of proceedings of courts and commissions were allowed to be broadcast over radio and television. Of course, where proceedings of a court or commission are open to the public, the broadcast of a sound recording will make available to the general public information which members of the public could have heard if they had taken advantage of their right to attend the proceedings.
3.11 Public attendance at court proceedings was a popular past-time many years ago. Nowadays, people rely on the media to provide news relating to judicial proceedings. In the words of the United States Supreme Court:
“Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public” 12
3.12 One commentator has said in relation to this opinion:
“It is only when the rights of the news media are equal to those of the general public that this surrogate role can be truly effective. The decisions [of United States courts] granting broadcasters the right to air videotapes presented as evidence seem to put the electronic media on an equal footing with the printed media in terms of reporting admitted evidence.” 13
A similar argument can be advanced in relation to the broadcast of public proceedings of courts and commissions in that it will both assist in equating the rights of the news media with those of the public and will also assist in equating the electronic media with the print media in terms of reporting evidence admitted during the proceedings. 14
3.13 In England, section 9 of the Contempt of Court Act 1981 specifically provides that a sound recording of the proceedings of a court cannot be broadcast. 15 The Phillimore Committee Report, upon which the legislation was based, stated that:
“... it would be particularly undesirable for recordings to be broadcast or otherwise made public especially since, in the wrong hands, they can be tampered with so as to produce a false record of what occurred.” 16
3.14 In response to the prohibition against broadcasting contained in section Contempt of Court Act 1981 (Eng.), one commentator has stated:
“Listening to edited broadcasts of parliamentary proceedings is now an accepted part of the daily diet and it has at least some educational value. There are obvious differences between Parliamentary and court proceedings, but public understanding of the judicial process ought in principle to be improved by permitting modest steps to be taken towards a similar experiment, confined perhaps to certain appellate courts.” 17
However, during the parliamentary debates, the policy of prohibiting the broadcast of court proceedings received bipartisan support. 18 One member of the House of Commons compared broadcasting the proceedings of Parliament and courts:
“...welcome here [to Parliament] of our own volition, when our electors endorse that volition, whereas litigants and witnesses in the courts are often there not of their own volition it is hard to expose people to the risk that something they say perhaps in an ill-considered moment or under pressure will be taken out of context and broadcast. That might have an inhibiting effect on the course of justice.” 19
3.15 Any discussion of the desirability of broadcasting sound recordings of the proceedings of courts and commissions (and similarly with allowing the televising of these proceedings) must deal with two competing interests. On the one hand, it is in the public interest to have increased understanding of the workings of courts and commissions. This interest may well be served by the broadcast in whole or in part of proceedings of courts and commissions over radio and television. In opposition to this, it can be argued that the use of cameras or the broadcasting of a sound recording may jeopardise the efficient working of commissions and the administration of justice in courts, for example, by intimidating witnesses.
3.16 Some of the arguments against permitting a sound recording of the proceedings of a court or commission to be broadcast are similar to those we considered in our report in relation to the use of sound recorders generally. 20 For example, it can be argued that future witnesses in a proceeding before a court or commission would be in a position to hear evidence that has already been given. In response, it can be said that there is very little difference between a direct quote from a witness being broadcast over radio and the same quote by the witness being read by a reporter on the radio. Broadcasting the proceedings does not create a new problem with respect to the briefing of future witnesses. The answer may lie (as it presently does) with the control of media access generally to courts and commissions and the suppression of any publication or broadcast likely to be detrimental to the work of the court or commission.
3.17 A further argument against allowing a sound recording to be broadcast is that it would be extremely difficult to broadcast an extract of part of the proceedings of a court or commission that would bear a proper balance, given the limited time that is usually available for each item in a news broadcast. Of course, this criticism could be levelled at any news report of the proceedings of a court or commission regardless of whether there is a direct broadcast of some part of the proceedings or simply a report read by a journalist. It can also be mentioned that there exist program standards for licensed television and radio stations in relation to news and current affairs. These standards require news programs to be presented “accurately and impartially.” 21 Program standards are promulgated by the Australian Broadcasting Tribunal pursuant to section 99(1) of the Broadcasting and Television Act 1942 (Cth) which provides:
“A licensee shall provide programs and shall supervise the broadcasting or televising of programs from his station in such manner as to ensure, as far as practicable, that the programs are in accordance with standards determined by the Tribunal.”
If there occurs a breach of the program standards, the licensee may be prosecuted for a contravention of the Act. 22
3.18 Perhaps the most substantial argument against allowing a sound recording to be broadcast is the effect on witnesses and other participants in the proceedings. We examine this argument further in relation to the televising of the proceedings of courts and commissions. However, it is conceivable that the presentation of evidence may be adversely affected by the nervousness of witnesses who realise that the evidence they give may be broad cast over radio or television. For many witnesses, to allow the broadcast of their evidence may introduce an unnecessary element of intimidation into the proceedings.
3.19 Moreover, it can be argued that to allow a sound recording of the proceedings of a court or commission to be publicly broadcast constitutes an unwarranted intrusion on the privacy of the participants. In the words of one of our consultants:
“Whilst the administration of justice is ‘public’ (save for the recognised exceptions for the proceedings being held ‘in camera’) I do not consider that it necessarily follows, certainly in the civil sphere, that the participation of particular litigants is ‘public’. Whilst at present newspapers can fairly report the proceedings of Courts of justice and whilst that can be viewed as sufficient intrusion on the privacy of the litigant, as a general proposition I do not believe that a litigant’s involvement in a Court case is as ‘public’ as the structure, that is the administration of justice, which provides the forum for the resolution of any dispute in which he happens to find himself involved.” 23
POLICY QUESTIONS
3.20 The first question on which the Commission invites submissions is whether public broadcasting of the proceedings of courts and commissions should be permitted. The main policy question which the Commission will need to address in future work on this reference is whether there is a public interest or benefit in broadcasting proceedings of courts and commissions. If so, is the subject better left in this present condition which for practical purposes, may be described as being entirely within the power and discretion of each court and commission or is legislation required? The starting point for any investigation of this topic would seem to be that no broadcast should be permitted unless there is good reason such as an identifiable public benefit. Further questions then arise as to the type of conditions that should be imposed on any broadcast. The broadcast of proceedings of the Commonwealth Parliament is subject to strict guidelines which govern, for example, the periods during which proceedings shall be broadcast the allocation of broadcasting time between the Senate and the House of Representatives, and the re-broadcast of that part of the parliamentary proceedings concerning questions and answers. 24
3.21 It may be considered appropriate to have broad guidelines which allow each court or commission a significant degree of autonomy and flexibility in determining what proceedings are suitable for broadcast and the conditions to be imposed. Further questions which need resolution include the following:
- Should guidelines for the broadcast of proceedings of courts be dealt with in rules of court and practice directions or should they be dealt with by way of statute? 25
- Should penalties be incurred by persons and organisations who breach conditions imposed on them in relation to the broadcast of proceedings of a court or commission?
- Should the approval of the trial judge or the chief judge of each court have to be obtained before any broadcast takes place? If so, what form should this take? For example, should the approval of the Chief judge of the District Court have to be obtained before proceedings in any District Court are allowed to be broadcast Similar questions arise with respect to all courts in New South Wales including the Supreme Court, the Land and Environment Court, the Industrial Commission and Courts of Petty Sessions.
- Once approval is given to broadcast the proceedings of a court or commission should the presiding judge or commissioner have the right to hear the excerpt of the recording to be broadcast and assess its appropriateness for broadcast?
- What notification procedures should be established if a media organisation wishes to broadcast a sound recording of the proceedings of a court or commission?
- Should there be an appeal mechanism if an application to broadcast proceedings of a court or commission is rejected?
- Should limitations be imposed on particular parts of proceedings allowed to be broadcasts. It may be thought appropriate to restrict any broadcast at least initially, to excerpts of a judgment delivered orally by a court. If other parts of the proceedings are allowed to be broadcast, should this be subject to obtaining the consent of the participants, for example, parties to the proceedings and any witness whose evidence may be broadcast.
3.22 If it is thought desirable to allow excerpts of a sound recording of the proceedings of a court or commission to be broadcast, it would be necessary to obtain a sound recording of sufficiently high quality for broadcast. Any recording made on a small hand-held sound recorder may not be of “broadcast quality” because the recording device itself may not be good enough or because there might be too great a distance between the speaker and the recording device. Ideally, the recording facilities that already exist in many New South Wales courts for the purpose of making official transcripts could be utilised with the objective of obtaining a sound recording of sufficient quality for broadcast. Many courts have microphones for all participants in the proceedings including the judge or magistrate, witnesses and counsel. Using sound recording facilities which already exist would, of course, eliminate any possible interference to the proceedings caused by the use of additional sound recorders.
FOOTNOTES
1. Riley McKay Pty. Ltd. v. McKay [1982] 1 NSWLR 264, at p.270.
2. R. v. Gray [1900] 2 QB 36, at p.40.
3. Royal Commission’s Act, 1923, s.18 (1); Special Commissions of Inquiry Act, 1983, s.24. In the case of a Royal Commission, this power only applies if the Chairman of the Commission or the sole Commissioner is a judge of the Supreme Court. In the case of a Special Commission of Inquiry, the contempt power will not have effect unless in the relevant letter patent the Governor declares that the section shall apply to the Commission. The power of a commission to punish acts of contempt is discussed in detail in our report: Sound Recording of Proceedings of Courts and Commissions: The Media, Authors and Parties (LRC. 39, 1984), paras. 3.11 - 3.21.
4. Broadcasts are made and regulated pursuant to the provisions of the Parliamentary Proceedings Broadcasting Act 1946 (Cth).
5. Parliamentary Standing Committee on Broadcasting, The Broadcasting of Parliamentary Debates (PP. 31, 1945), p.4.
6. Willing’s Press Guide 1982 (108th Annual Edition 1982), pp.726-753.
7. Audit Bureau of Circulations, Newspaper Circulation Summary: Preliminary Release for March 1984. The figures represent net paid circulation for each of the four newspapers. The four newspapers are:
Daily Telegraph 299,797
Sydney Morning Herald 255,892
Daily Mirror 329,472
The Sun 310,871
The Sunday newspapers published by the same companies in Sydney, the Sun Herald and the Sunday Telegraph, had net paid circulations in March 1984 of 646,454 and 637,534 copies respectively.
8. Department of Communications, Sound and Television Broadcasting Stations (1983), pp.1-25. The figures exclude translator stations and do not distinguish between medium frequency (MF) stations and frequency modulation (FM) stations.
9. Id., pp.26- 38. The figures do not include television translator stations.
10. Australian Broadcasting Tribunal, Annual Report 1979-1980 (1981), p.146.
11. Australian Broadcasting Tribunal, Annual Report 1982-1983 (1983), p.262.
12. Richmond Newspapers Inc. v. Commonwealth of Virginia (1980) 448 U.S.555, per Burger C.J., at pp.572-573.
13. Robin F. Lewis, “First Amendment I” in 1982 Annual Survey of American Law, at p.300, fn.84.
14. In this respect the extent of the access of the general population of Australia to the electronic media is worthy of note. In 1981, 97 percent of households had at least one television set and television households accommodated 14.1 million of the country’s 14.7 million population. The average city household had its television set switched on for 11 hours 48 minutes a week: Keith Windschuttle, The Media (1984), p.59.
15. Contempt of Court Act 1981 (Eng), s.9(1)(b).
16. Report of the Committee on Contempt of Court (Cmnd. 5714, 1974), para.42.
17. C.J. Miller, “The Contempt of Court Act 1981” (1982) Criminal Law Review 71, at pp.83-84.
18. See, for example, Parliamentary Debates (Hansard), House of Lords (1981), vol.4 16, col.381; Parliamentary Debates (Hansard), House of Commons (1981), vol.6, col.884.
19. Parliamentary Debates (Hansard), House of Commons (1981), vol.6, col.884.
20. Sound Recording of Proceedings of Courts and Commissions: The Media, Authors and Parties (LRC 39, 1984), para. 5.13.
21. Radio Program Standard 4(i) and Television Program Standard 27(a), cited in M. Armstrong, Broadcasting Law and Policy in Australia (1982), para.5.18.
22. Broadcasting and Television Act 1942 (Cth.), s.132. Armstrong states that as s.99 is deemed to be incorporated as a condition in every licence(s.129), contravention of a program standard could lead to the exercise of the Tribunal’s licensing powers: Armstrong, note 21 above, paras.405 and 805.
23. Letter from Mr. D. Levine, Barrister, 7 November 1983. The issue of privacy of participants in judicial proceedings is further examined in respect of the televising of these proceedings: see paras.4.46-4.47.
24. J.A. Pettifer (ed), House of Representatives Practice (1981), pp.680-686. These guidelines are currently under consideration by the Joint Committee on the Broadcasting of Parliamentary Proceedings which has been directed by resolution of both Houses of Parliament to inquire into and report on inter alia, “the radio broadcasting of the proceedings of the Houses of Parliament and their committees including the continuous and simultaneous broadcasting of both Houses”.
25. While most courts in New South Wales are granted statutory power to make rules of court(see, for example, Supreme Court Act 1970, s.124; Land and Environment Court Act, 1979, s.74; District Court Act 1973, s.161; Workers’ Compensation Act, 1926, s.38(e)), all courts have inherent power to make rules of court and practice directions: see Connelly v. Director of Public Prosecutions [1964] AC 1254, per Lord Devlin at p.1347. See also I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23, at pp.33-77.
