THE TERMS OF REFERENCE

1.1 This is the fourth report in the Community Law Reform Program. The Program was established by the Attorney General by letter dated 24 May 1982, addressed to the chairman of the Commission. The letter included the following statement:

“This letter may therefore be taken as an authority to the Commission in its discretion to give preliminary consideration to proposals for law reform made to it by members of the legal profession and the community at large. The purpose of preliminary consideration will be to bring to my attention matters that warrant my making a reference to the Commission under s.10 of the Law Reform Commission Act 1967.”

The background of the Community Law Reform Program is described in greater detail in the Commission’s Annual Reports for 1982 and 1983.

1.2 In August and September 1982 the Commission gave preliminary consideration to the subject matter of this report at the request of the then Attorney General the Honourable F.J. Walker, Q.C., M.P., following his receipt of a submission from a newspaper publisher John Fairfax and Sons Limited to the effect that reporters should be permitted to tape-record court proceedings. The submission suggested that the New South Wales Government enact legislation in similar terms to section 9 of the contempt of Court Act 1981 (Eng.). The English legislation is discussed in Chapter 4.

1.3 As part of its preliminary work the Commission wrote to a number of representatives of broadcasters and publishers in New South Wales seeking their views,¹ and after due consideration sought a reference by letter of 17 September 1982. By letter dated 16 October 1982 the Attorney General made the following reference to the Commission:

“To inquire into and report on whether tape-recording or other recording of court proceedings by representatives of publishers and broadcasters (including representatives of the press and of radio and television broadcasters) should be permitted in New South Wales and, if so, on what conditions.”

1.4 In May 1983 the Department of the Attorney General and of Justice invited the Commission by letter to consider the feasibility of widening the terms of reference to include the recording of proceedings of Royal Commissions. The Commission subsequently requested the Attorney General the Honourable D.P. Landa, LLB, MLC, to widen the terms of reference accordingly, and the Attorney General acceded to this request by letter of 26 July 1983.

1.5 The Commission completed a draft report in September 1983. The report recommended that representatives of the news media should have a statutory right to record the proceedings of courts and Royal Commissions where the proceedings are taking place in public. The report was circulated to 11 consultants, the Bar Association of New South Wales, the New South Wales Law Society, and to several Judges. The consultants included practising barristers and solicitors, journalists, executives in public radio and a professor of law. The names of the consultants are listed on page 9.

1.6 Some consultants suggested that the terms of reference should be widened to allow the Commission to consider whether persons other than representatives of the news media should be permitted to use a sound recorder to record the proceedings of courts and Royal Commissions. It was argued that such persons may have a legitimate interest in the proceedings which justifies their use of a sound recorder. It was said, for example, that during a court hearing, practical assistance to parties and their legal representatives could result from a sound recording of the proceedings, particularly where a transcript of the proceedings is not readily available.²

1.7 The point was also made that attempts to draw a distinction between representatives of the news media and authors of books and articles by giving a statutory right to use a sound recorder only to the former could lead to problems. in particular, it could be unreasonable to deny to an author who intends to deal with the subject matter of particular court proceedings in a book or article, the right to make a sound recording of those proceedings if the same right were to be given to representatives of the news media. As one of our consultants stated:

“People who write books about court cases are not usually representatives or employees of anyone. Such activity, while not frequent, has an honourable tradition and such works are likely to be a far more thoughtful and enduring record of what occurs than the output of the mass media.”³

1.8 In the light of the consultants’ comments it was decided that the Commission should seek an extension to the terms of reference to authorise it to consider whether the right to use sound recorders to record the proceedings of courts and Royal Commissions should be granted to persons other than representatives of the news media.

1.9 Shortly after the draft report was circulated to the consultants, the New South Wales Parliament enacted the Special Commissions of Inquiry Act, 1983. The provisions of this Act are similar to the Royal Commissions Act, 1923, the main difference being that a Special Commission of Inquiry, in the course of a hearing in public can only receive as evidence matter that in the opinion of the Commissioner, would be likely to be admitted into evidence in relevant criminal proceedings.⁴ Given the similarities between Royal Commissions and Special Commissions of Inquiry, the Commission formed the opinion that it would be desirable to consider whether recording of the proceedings of Special Commissions of Inquiry should also be permitted.

1.10 On 30 November 1983 the Commission formally requested the Attorney General to widen the terms of reference so as to enable consideration to be given to whether other persons, as well as representatives of the news media, should be permitted to record the proceedings of courts, Royal Commissions and Special Commissions of Inquiry. By letter of reply dated 29 December 1983 the Attorney General acceded to this request The terms of reference are set out fully on page 3.

ISSUES FOR REFORM

1.11 The terms of reference raise a number of major issues for reform. These include the following:

• Whether the use of tape-recorders or other sound recorders for the purpose of recording the proceedings of a court, Royal Commission or Special Commission of Inquiry should be permitted by any or all of the following persons:
  
  (i) representatives of the news media;

  (ii) authors of books and articles which will deal with the subject matter of the proceedings;

  (iii) parties to court proceedings and their legal representatives;

  (iv) persons authorised to appear before a Royal Commission or a Special Commission of Inquiry and their legal representatives,

  (v) persons appointed by the Crown to assist a Royal Commission, or a Special Commission of Inquiry; and

  (vi) members of the public.

The recording would be in substitution for, or in addition to, handwritten notes. Two alternatives immediately arise. The first is that the use of sound recorders be allowed as of right where the proceedings are already open to the public and the news media. The second alternative is that such use would be lawful only with prior permission of the court or Commission. In either case, broadcasting to the public of all or part of the recording would not be permitted.

• Whether the broadcasting of all or part of a sound recording over public radio or television should be permitted (as opposed to restricting the use of the recording so that it is to be a substitute for, or an addition to, handwritten notes).
• Whether television filming and public broadcasting (that is, broadcasting of visual images as well as sound) of all or part of the proceedings of courts, Royal Commissions and Special Commissions of Inquiry should be permitted.

1.12 In Chapter 5 we recommend that the following persons be permitted to use sound recorders to record the proceedings of courts and Commissions in substitution for, or in addition to, handwritten notes:

• representatives of the news media;
• authors of certain books and articles;
• parties to court proceedings and their legal representatives;
• persons authorised to appear before a Royal Commission or a Special Commission of Inquiry and their legal representatives, and
• persons appointed by the Crown to assist a Royal Commission or a Special Commission of Inquiry.

Our recommendations envisage a right to use a sound recorder only where the person concerned is entitled to be present at the proceedings. Moreover, the right would be subject to the power of the court or Commission to prohibit the use of a sound recorder where it is reasonably believed that substantial interference with the administration of justice or the exercise of functions of the court or Commission would occur if the sound recorder were to be used in addition our recommendations envisage general restrictions upon the use of sound recordings of court and Commission proceedings. These include a prohibition on using the recording for the purpose of public broadcasting, except with the leave of the court or Commission.

1.13 We believe that the question whether members of the public generally should have the right to record the proceedings of courts and Commissions should be the subject of wider public debate and discussion before recommendations are made by this Commission. We take the same view in relation to the questions raised by the second and third issues in paragraph 1.11, namely, the public broadcast of all or part of a sound recording of the proceedings of a court or Commission and the television filming and broadcast of all or part of those proceedings. We intend to publish an Issues Paper in which we discuss these broader questions. The Issues Paper will also canvass the question whether the law should be reformed in relation to sketches and photographs which constitute a “record’ of the proceedings of courts and Commissions. The Issues Paper will set out arguments concerning each issue and call for submissions from interested organisations and members of the public. The submissions will be significant in our determination of procedures for future work on this reference.

DEFINITIONS

1.14 We now discuss two phrases which form part of our terms of reference: “tape-recording or other recording” and “representatives of publishers and broadcasters”. We also discuss the terms “media” and “news media” which are used extensively throughout this report.

Tape - Recording or Other Recording

1.15 The Oxford English Dictionary defines “record” as inter alia, “an account of some factor event preserved in writing or other permanent form ...”⁵ A record of the proceedings of a court or Commission could be a visual record or a sound record. A visual record can be made by means of film videotape, photograph or sketch or it can be in printed form. Tape-recording is a normal method of making a sound record although there are other means. In this report we use the expressions “tape or other sound recording” and “ sound recording” in relation to the sound recording of the proceedings of a court or Commission.

Representatives of Publishers and Broadcasters

1.16 Our terms of reference specifically include in the category “representatives of publishers and broadcasters”, representatives of the press and of radio and television broadcasters. “Publisher” obviously includes the publisher of a book as well as the publisher of any newspaper, journal magazine or other publication that is published daily or at periodic intervals. The activities of “broadcasters” in our opinion include broadcasting via television (which of course includes sound as well as visual images, and which may be done, for example, by the Australian Broadcasting Corporation the Special Broadcasting Service or a commercial television station), and broadcasting via radio (which may be done by the Australian Broadcasting Corporation the Special Broadcasting Service, commercial radio stations or public broadcasting stations). It is therefore plain that the words “publishers and broadcasters’ refer to persons concerned with disseminating more information than is comprehended by “news” and current affairs”. However, when in this report we refer to representatives of publishers and broadcasters, we largely confine our attention to persons concerned with information of the last mentioned kinds, and use expressions such as “news media”, “media” and “representatives of the news media”. When we use the term “representative” we mean an agent, servant or employee. In this sense, a person who intends to publish a book or article may not necessarily be a representative of a publisher. However, our amended terms of reference allow us to consider whether such persons should be permitted to use sound recorders to record the proceedings of courts and Commissions.

“Media” and “News Media”

1.17 We do not intend to attempt an exhaustive definition of expressions such as “news”, “news media”, “information media” and “current affairs”. However, it may be useful to give an indication of our understanding of the broad reach of such expressions. Our references to “the news media” and “the media” are intended to include persons and organisations who publicly disseminate information concerning current events and matters of current public interest. These activities can be carried out by the printed word in newspapers, magazines and the like (the print medium), by radio broadcasting, by cinematograph film projection or by television broadcasting. Radio and television broadcasting often are referred to as “the electronic media”. It is generally accepted that these means (media) of publishing facts, reports, and discussing matters of the kind mentioned above, including judicial proceedings, are important organs of communication whether done on a commercial basis or otherwise. For example, in 1974 the Lord Chief justice of England, Lord Widgery, in discussing the principle that justice must be administered in public, said that the great majority of the public “get their news of how justice is administered through the press or other mass media...”⁶ The important role of the media in disseminating information concerning matters of current public interest is discussed further in Chapter 5.⁷

ACKNOWLEDGMENTS

1.18 We record our thanks to Mr. D.R. Murphy, Q.C., Parliamentary Counsel and to Mr. C.M. Orpwood, Deputy Parliamentary Counsel for the preparation of the draft legislation attached to this report and for their advice and assistance.

1.19 The Commission has decided to take the unusual step of expressing its appreciation to one of its research staff for his valuable contribution to the production of this report The staff member is Mr. I. M. Ramsay, Legal Officer, who has devoted a substantial amount of his own time to this reference. Mr. Ramsay’s research and written material have been of a particularly high order.

FOOTNOTES

1. Letters were forwarded to the Federation of Australian Commercial Television Stations, the Federation of Australian Radio Broadcasters, the Australian Broadcasting Commission (now the Australian Broadcasting Corporation) and News Limited.

2. Letter from Mr. D. Levine, Barrister, 7 November 198 3; and letter from the Law Society of New South Wales, 5 December 1983.

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

4. Special Commissions of Inquiry Act 1983, s.9(3).

5. Oxford English Dictionary (1961), vol. viii, p.266.

6. R. v. Denbigh Justices, ex parte Williams (1974) 2 All E.R. 1052, at p.1056. See also para.2.13.

7. Paras.5.3-5.11.