INTRODUCTION

5.1 In this chapter we recommend that the following persons be permitted to use sound recorders in 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 conclusion is that these persons should have a right to use sound recorders and should not have to seek leave of the court or Commission. The right should arise or exist only where the person concerned is entitled to be present at the proceedings.¹ in addition the right should 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. Moreover, we do not advocate altering the existing principles, outlined in Chapters 2 and 3, whereby in certain circumstances a Judge or Commissioner may hold all of the proceedings or part of the proceedings in camera. We recommend that the use of sound recorders be subject to conditions which we set out in detail One of these conditions is that the sound recording may not be broadcast publicly without the express permission of the court or Commission.

5.2 Of course, the fact that our recommendations are directed to the categories of persons described above would not alter the present law as it relates to other members of the public. Under the present law (as outlined in Chapters 2 and 3), a member of the public may apply to a court or Commission for permission to record all or part of the proceedings. Permission maybe given pursuant to the inherent power of the court or Commission to control its own proceedings. In our forthcoming Issues Paper we discuss whether members of the public should also have a right to use sound recorders to record the proceedings of courts and Commissions and not have to seek leave of the court or Commission.

THE USE OF SOUND RECORDERS BY REPRESENTATIVES OF THE NEWS MEDIA

Reasons for our Recommendations

5.3 The media occupy an important role in Australian society. Both the print media and the electronic media have a vital function in disseminating information concerning current events and matters of current public interest. In 1982 there were 589 newspapers and periodicals being published in Australia.² While most of these publications have limited circulation the national and metropolitan daily newspapers have substantial circulation. In Sydney, for example, two metropolitan daily newspapers which are published by one organisation had a combined daily circulation of more than 550,000 copies in March 1983.³

5.4 At the end of June 1982 there were 43 commercial radio broadcasting stations in operation in New South Wales, 23 radio broadcasting stations operated by the Australian Broadcasting Commission (now the Australian Broadcasting Corporation), 10 “public” broadcasting stations and one broadcasting station operated by the Special Broadcasting Service. At the same time, there were 14 commercial television stations in operation in New South Wales,14 television stations operated by the Australian Broadcasting Commission and one television station operated by the Special Broadcasting Service.⁴ Of these television stations, three commercial stations, one Australian Broadcasting Commission station and the Special Broadcasting Service station operate in the Sydney metropolitan area. All others serve non-metropolitan areas of New South Wales.⁵

5.5 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 per cent of total broadcast programs. For non-metropolitan stations, the percentage was 11.3 per cent.⁶ A statistical analysis of television programs undertaken by the Australian Broadcasting Tribunal over a nine week period in 1981-82 revealed that news and current affairs programs constituted 9.8 per cent of all television programs broadcast by metropolitan stations and 10.6 per cent of all programs broadcast by non-metropolitan television stations.⁷

5.6 These statistics indicate the important role the media play in the provision of news and information concerning current affairs. We believe that the media should have available facilities for presenting news and current events in the best and most efficient way possible, making use of modern technological innovations, including compact unobtrusive sound recorders, provided that the administration of justice in courts is not thereby impeded or the proceedings of Commissions hindered. Journalists would have a more accurate report of proceedings if sound recorders were used, rather than relying solely on hand written notes. This is the opinion of journalists we have consulted in the course of our work on this reference. Indeed the original submission from a media organisation to the Attorney General which was the reason for this Commission giving preliminary consideration to this subject stated that although the majority of published court reports accurately record the proceedings:

“It would be fair to say that there have been instances where reporters have misheard and have made mistakes and misrepresented proceedings ... Tape recorders would facilitate accurate reporting.”

Increased accuracy in the reporting of proceedings of courts and Commissions can only be in the best interests of the public.

5.7 We said in Chapter 2 that an essential element of the principle that justice must be administered in open court is that judicial proceedings should be open to public scrutiny. The news media are clearly an important part of this process and we believe that the implementation of our recommendations will assist in the production of fair and accurate reports of judicial proceedings. However, despite the opinions given and the authorities cited above in paragraph 2.13 and in the following paragraphs, the New South Wales Bar Association does not agree with this assessment of the role of the media. As part of their comments on a draft of our report in this reference the Association stated:

“But the media are not in truth the representatives of the public. Those persons who attend Court from the media are employees of very large companies who seek to make profits out of news. The companies in question have little or no particular concern about either the administration of justice or the interests of the public. They do greatly prize the opportunity to report Court proceedings. The advantage to them of Court proceedings is that the coercive power of the State is used to compel the provision of salacious or embarrassing information which would otherwise be very hard to collect in circumstances where they enjoy substantial immunities from suit for defamation. If the press did not enjoy those immunities, they would take very much less interest in Court proceedings. In the circumstances, the proposal appears to be based on a desire to assist a particular class of the community whose activities have only adventitious connections with the public benefit.”⁸

5.8 By way of contrast, other commentators, including Judges, have confirmed the importance and value of the media not only in relation to the principle of open justice but in relation to the administration of justice itself. Professor Sawer has observed that:

“in a democracy it is ... essential that public interest in the Working of the law be maintained. That can be achieved to some extent by the principle of public hearings, but the number of laymen with interest in a knowledge of the law likely to visit courts is very limited. Press reporting is much more likely to ensure widespread awareness of the legal system and prompt information about features of the law likely to require attention.”⁹

Lord Denning, too, has been generous in his praise of journalists who report judicial proceedings for the media, and has referred to them as the “watchdog[s] of justice”.¹⁰

5.9 In 1950, the United States Supreme Court stated that:

“One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right.”¹¹

In 1980, the United States Supreme Court again addressed the same point:

“As a practical matter ... the institutional press is the likely, and fitting, chief beneficiary of a right of access [to courts] because it serves as the “agent” of interested citizens, and funnels information about trials to a large number of individuals.”¹²

5.10 We made the observation in Chapter 2 that representatives of the news media usually have special accommodation or facilities provided for them in courtrooms. This can be viewed as an acknowledgment of the important role of the media in reporting judicial proceedings. The Supreme Court of Queensland has stated:

“Courtrooms vary very muck but almost invariably there is some special provision made therein for the accommodation of representatives of the press. To my mind, this would imply that the King desires that the representatives of the press should be afforded special facilities for reporting the proceedings in his Courts, and custom sanctions this and common sense demands that it should be so.”¹³

The United States Supreme Court has said that:

“while media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard. This 'contribute[s] to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system’.”¹⁴

5.11 Nobody could reasonably suggest that media organisations are faultless. Criticisms are wide-ranging, including the view that concentration of ownership can have a distorting effect on news reporting.¹⁵ Yet, as one commentator has said:

“It is no disparagement of their motives, either corporate or individual to say that newspapers need news to print and that court proceedings, even nowadays, represent a fruitful source of copy. What must be remembered is that there are courts sitting daily in this country where the only member of the public present is a representative of the press. If anything important or untoward occurs this solitary individual may represent the communities only chance of learning about it, for the litigants may have cause to keep silent or be inclined to be partial and it is no part of the court’s job to act as a town-crier. At the other extreme, when some notable trial takes place the public gallery cannot possibly contain even a small fraction of those anxious to follow the proceedings and the way in which the man in the street learns the outcome is through the news media. From time to time a judge or magistrate, justice clerk or advocate may take exception to what is written or what is left out of press reports, not always without justification. All the more important to remember, therefore, that despite their faults, real or imagined, in a society as large and complex as ours only the existence of a zealous and diligent body of newspaper and broadcasting reporters can make a reality of the doctrine of trial in open court and thereby ultimately the integrity of the judicial process.”¹⁶

5.12 Our recommendation that representatives of the news media should have a right to use sound recorders differs from the approach adopted in England, where the use of sound recorders in court without consent is now an offence. Sound recorders may only be used in England with the leave of the court. However, we have already observed that in principle representatives of the news media have a right to be present and to take hand written notes in court where the proceedings are open to the public If a sound recorder is to be used in substitution for, or in addition to, hand written notes and for the purpose of preparing a fair and accurate report of the proceedings, we can see no good reason why making hand written notes for a news report should be prima facie lawful while the use of a sound recorder for the same purpose should be prima facie an offence. This approach, which we first outlined in our draft report received the support of every person and organisation consulted (including members of the judiciary), except the Bar Association.

5.13 Several arguments against the use of sound recorders in courts and Commissions can be made.

• Argument: Sound recorders would constitute both a nuisance and a distraction to the proceedings of courts and Commissions

Comment: Mr. S.M. Littlemore, Barrister, and the New South Wales Bar Association consider that the use of hand-held sound recorders could amount to a distraction during court proceedings.¹⁷ Mr. Littlemore said that:

“although the public interest is totally in favour of a system where journalists should have access to a complete tape recording of the court’s procedure, the process of making that recording should in no way intrude upon the processes of the court or the attention of witnesses giving evidence. Small hand-held recorders, being operated during a witness’ evidence... with cassettes being turned over, and checks made on play back that the recording is satisfactory... would create a risk of distracting the witness, and interrupting the flow of evidence.”

Mr. Littlemore suggested that courtrooms should be wired for in-court amplification and master-tape recording of proceedings and the master-tape monitor should provide either multiple “split” with which journalists recorders could be connected, or multiple cassettes made simultaneously with the master recording, for later distribution to journalists. While we agree that this is the most desirable of all alternatives, it is not necessarily the case that sound recorders must constitute a nuisance and a distraction to the proceedings of courts and Commissions. This may have been the situation in the past when such recorders were bulky and cumbersome.

However, sound recorders can now be conveniently hand-held, are simple to operate, unobtrusive and may prove less of a distraction than journalists taking hand written notes. This has been confirmed by manufacturers of small compact sound recorders in Australia, who have provided us with the following information in connection with these recorders.¹⁸

(i) The power requirements of the recorders are usually between 3 and 6 volts (DC) which can be provided by batteries.

(ii) The weight of the recorders, with batteries, is usually less than 400 grams.

(iii) The dimensions of the recorders are usually less than 100 mm (W) x 150 mm (H) x 40 mm (D).

(iv) Most recorders have an in built condensor microphone with the option of connecting an external microphone. Some recorders allow the user to adjust the microphone sensitivity. For example, if the speaker is some distance from the microphone, the sensitivity can be increased.

(v) Some small recorders allow 90 minutes of recording without interruption. This is achieved by the recorder automatically reversing and recording on the second side of the cassette tape.

• Argument: The sound recording could be used to brief future witnesses in a case.

Comment: This would constitute the offence of contempt of court and no new problem is created by the use of sound recorders. Witnesses can also be briefed from memory and from hand written notes, but whether a sound recorder is used or note it is an offence already punishable by the court. Attempts to influence any 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.”¹⁹

Moreover, our recommendations envisage only limited classes of persons being given a right to use a sound recorder. A witness who is giving evidence or who intends to give evidence in court proceedings or the proceedings of a Commission would not come within those classes. We recommend that a right to use sound recorders be conferred on barristers and solicitors. However, it is to be noted that barristers and solicitors are subject to ethical rules which clearly prohibit the briefing of future witnesses in proceedings. Rule 32 of the New South Wales Bar Association Rules states that “under no circumstances shall a barrister advise a witness or suggest to him that he should give false evidence”, or advise “what answer he should give to questions he might be asked”. A similar provision applies to solicitors as officers of the court:

“Fabrication of evidence, coaching to induce false evidence, hinting at the results which certain evidence will induce with the expectation that it will be altered, interviewing witnesses together, so as to induce agreement must be a departure from the solicitor’s duty as an officer of the Court.”²⁰

We also recommend that where a person has a statutory right to use a sound recorder, the court or Commission should have power to prohibit that use where the court or Commission believes, on reasonable grounds, that substantial interference with the administration of justice or the exercise of functions of the court or Commission would result. Consequently, where a court or Commission reasonably believed that a sound recording, if permitted to be made by a person would be used to brief a future witness, then that person could be prevented from using a recorder.

• Argument: The sound recording could be altered or “doctored”

Comment: We recommend that any recording made by a representative of the news media shall not except with the leave of the court or Commission be used to correct or call in question the official transcript of the proceedings. Of course, any published report based on an altered tape would be subject to the laws of contempt and defamation.

• Argument: The use of a sound recorder could disturb witnesses and affect the giving of evidence

Comment: This argument would have greater force in relation to the use of cameras in the courtroom or if an excerpt from the sound recording were to be publicly broadcast. However, if neither of these actions is permitted and the recording is only to be used to prepare a report, then there is very little difference when compared with the use of hand written notes by journalists and the argument loses considerable force. Further, as was noted in Chapter 2, sound recording of the proceedings of many New South Wales courts is already undertaken for the purpose of preparing official transcripts.

Royal Commissions and Special Commissions of Inquiry

5.14 Unlike courts. Royal Commissions do not exercise a judicial function although a Royal Commission may be required to “act judicially” if it has the power to affect the “rights” of persons.²¹ Special Commissions of Inquiry, also, as we have seen do not exercise a judicial function.²² Rather, a Royal Commission or Special Commission of Inquiry has an investigatory or inquisitorial function and is not concerned with the “administration of justice”.²³ The question then arises whether this difference in functions between Commissions and courts is a sufficient basis upon which to deny the news media the right to use sound recorders in substitution for, or in addition to, hand written notes to record the proceedings of Commissions, if we recommend that sound recorders be allowed in courts.

5.15 Given that we do not advocate altering the power of a Commissioner to conduct the proceedings in camera, we believe that it is proper for representatives of the news media to have a right to use sound recorders in substitution for, or in addition to, hand written notes when the Commissioner has already permitted the media access to the proceedings. The reasons for this recommendation are the same as those we previously discussed in relation to the recording of court proceedings. Representatives of the news media should have a right to use sound recorders to record the proceedings of Commissions, subject to conditions which we outline in the following section.

Recommendations

5.16 Our first recommendation relates to the proccedings of courts, Royal Commissions and Special Commissions of inquiry when those proceedings are open to representatives of the news media. The recommendation is that those representatives be entitled, as of right, to use sound recorders to record the proceedings in substitution for, or in addition to, hand written notes. The right and its exercise is not to interfere with the power of the court or Commission to impose restrictions on the reporting of the proceedings, for example, to make an order, when it may lawfully be made, suppressing publication of the name of a witness or party. In addition the right and its exercise should be subordinate to the power of the court or Commission to prohibit or order the cessation of the use of a sound recorder where it is believed on reasonable grounds that the use of the sound recorder constitutes a substantial interference with the administration of justice or the functions of the court or Commission or that such interference would occur if recording were permitted.

5.17 We recommend that a number of conditions should generally apply to the use of sound recorders in courts and Commissions by representatives of the news media. We deal later with the conditions that should apply to authors of books and articles, and to parties to legal proceedings and persons authorised to appear before a Commission and their legal representatives. The following conditions relate to the use of sound recorders in courts and Commissions by representatives of the news media.

• The recording shall be used solely for the purpose of reporting the proceedings of a court or Commission.
• The report shall be published or broadcast only by one or more of the following, namely, a newspaper, journal, magazine or other publication, a radio or television station controlled by the Australian Broadcasting Corporation or the Special Broadcasting Service, or a radio or television station licensed in accordance with the provisions of the Broadcasting and Television Act 1942 (Cth.).
• A recording to be made for any purpose other than the foregoing may be undertaken only with the leave of the court or Commission.
• No part of the recording may be broadcast to the public except with the leave of the court or Commission. (We note that in England, the broadcasting of a sound recording of judicial proceedings is not permitted in any circumstances and there is no provision for leave to be granted. However, in our Issues Paper, to be published shortly, we observe that this has already occurred in Australia without criticism and therefore it seems inadvisable to introduce a blanket prohibition that has hitherto not been thought necessary.)
• The recording shall be made only by a representative of a publisher or broadcaster.
• The representative of the publisher or broadcaster making the recording shall not make the recording available to any person other than an agent or servant of that publisher or broadcaster and then only for the purpose of reporting the proceedings.
• No copy of the whole or any part of the original recording shall be made by any person and a person shall not have in his or her possession a sound recording which is a copy of the original recording.
• The recording shall not, except with the leave of the court or Commission, he used to correct or call in question the whole or any part of an official transcript of the proceedings.

We recommend that legislation should provide for penalties to be imposed in the event of a breach of any of these conditions.

THE USE OF SOUND RECORDERS BY AUTHORS OF BOOKS AND ARTICLES

Reasons for our Recommendations

5.18 While our original terms of reference referred only to representatives of publishers and broadcasters, our amended terms of reference require us to inquire into and report on whether recording of the proceedings of courts and Commissions should be permitted by “a person who is or intends to be the author of a book or article devoted entirely or in part to the proceedings”. Although in some circumstances an intending author may be considered to be a representative of a publisher, in the words of one of our consultants:

“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.”²⁴

5.19 Moreover, an independent person (including a freelance journalist) who intends to publish an article in a periodical would not have been permitted to use a sound recorder as of right under our original recommendations. If such work is considered to be of equal value to news media reports of the proceedings of courts and Commissions, there can be no logical reason for distinguishing (in terms of a right to use a sound recorder) between journalists who are employees and intending authors of books and articles, including freelance journalists.

5.20 While the news media occupy a special position in the provision of information concerning the proceedings of courts and Commissions, the principle that justice is to be administered in open court requires that court proceedings can be freely reported and commented upon by any person In the words of Lord Diplock “justice is to be administered in open court where anyone present may listen to and report what was said.”²⁵ It has also been said that:

“the public interest in ensuring that litigation is in general conducted in open court and freely reported, and be the subject of legitimate comment and indeed criticism, admits of no doubt.”²⁶

If authors of books and articles which are devoted wholly or in part to the proceedings of a court or Commission fulfil this function and if the use of a sound recorder will assist in the accuracy of those reports, then we believe that these persons should be permitted to use a sound recorder as of right, subject to the conditions outlined below.

5.21 There may be difficulties in defining satisfactorily those authors entitled to avail themselves of the statutory right to use sound recorders. It may be that persons who have no real claim to describe themselves as authors would do so in order to qualify for the right to make a sound recording. We think that abuse of this kind could be controlled by the supervisory powers of the court or Commission and its role in determining eligibility. We envisage that an “author” for this purpose could be defined as a person who, in the opinion of the court or Commission is bona fide engaged or intending to engage in the writing of a book or article on a subject in respect of which those proceedings are relevant. A person who seeks to exercise this right will be liable to answer questions put by the Judge or Commissioner and to give an account of his or her eligibility to exercise the right. The discretion to be extended to the court and Commission should act as a sufficient safeguard particularly if coupled with the ultimate sanctions associated with the contempt power and the penalties that we recommend should be available for breach of conditions imposed on the use of sound recorders.

Recommendations

5.22 We therefore recommend that authors of the kind described in the preceding paragraph be entitled, as of right, to use a sound recorder to record the proceedings of courts, Royal Commissions and Special Commissions of Inquiry in substitution for, or in addition to, hand written notes. This right will exist only where the author is entitled to be present at the proceedings of the court of Commission. Further, the right and its exercise should be subordinate to the power of the court or Commission to prohibit or order the cessation of the use of a sound recorder where it is believed on reasonable grounds that the use of the sound recorder constitutes a substantial interference with the administration of justice or the functions of the court or Commission or that such interference would occur if recording were permitted. In addition we recommend that the following conditions should generally apply.

• The recording of the proceedings shall be used solely for the purpose of writing a book or an article on a subject in respect of which those proceedings are relevant.
• A recording to be made for any purpose other than the foregoing may be undertaken only with the leave of the court or Commission.
• No part of the recording may be broadcast to the public except with the leave of the court or Commission.
• The recording shall not be made available to any person other than an agent or servant of the author making the recording and then only for the purpose of assisting with the writing of the book or article.
• No copy of the whole or any part of the original recording shall be made by any person and a person shall not have in his or her possession a sound recording which is a copy of the original recording.
• The recording shall not, except with the leave of the court or Commission, be used to correct or call in question the whole or any part of an official transcript of the proceedings.

We recommend that legislation should provide for penalties to be imposed in the event of a breach of any of these conditions.

THE USE OF SOUND RECORDERS BY PARTIES, LEGAL REPRESENTATIVES AND OTHERS

Reasons for our Recommendations

5.23 In our draft report on this reference we included a section on the recording of the proceedings of courts and Commissions by barristers and solicitors. Although not strictly within our original terms of reference, we considered that the subject was so closely related to our terms of reference that it warranted mention. Several of our consultants suggested that our terms of reference be amended so as to allow a recommendation to be made.²⁷ For example, the Law Society of New South Wales said:

“The Committee was again unanimously of the view that it would be of great assistance in the conduct of litigation for barristers and solicitors to be able to record proceedings in appropriate cases. The Committee hopes that the Commission will accordingly request either a separate reference or an amendment to the terms of reference from the Attorney General to enable further consideration of this proposal it was of the view that if barristers and solicitors were to have the right to record proceedings then it should be on the same basis as that already suggested in your Draft Report for recording by representatives of the media, namely a prima facie right subject to certain conditions.”²⁸

Mr. D. Levine, Barrister, said:

“The efficient conduct by Counsel or legal representatives in Court can only be aided by a facility available for themselves to record the proceedings ... Counsel should be able to record by means of sound recording the proceedings as they are conducted subject to the various considerations mentioned in the report in relation to technical impracticalities and the like. The official record of the proceedings will be that kept by the Court itself. I am simply considering the problem from the point of view of the efficient conduct of the legal representatives on behalf of their clients. It would be invaluable (and I have left aside the question of costs) for Counsel or Solicitors to have available at all times during the hearing a running record of the evidence for consideration simply, for example, during an adjournment.”²⁹

Subsequently, as mentioned in Chapter 1, the Commission’s terms of reference were widened to allow consideration of this subject.

5.24 It is to be noted that unlike judicial proceedings, there are no parties to the proceedings of Royal Commissions and Special Commissions of Inquiry. However, as stated in Chapter 3, in both types of Commission where it is shown to the satisfaction of the Commissioner that any person:

• is substantially and directly interested in any subject-matter of the inquiry; or
• that the person’s conduct in relation to any such matter has been challenged to his or her detriment

the Commission may authorise that person to appear at the inquiry and be legally represented.³⁰ We also observed in Chapter 3 that there is provision in both the Royal Commissions Act 1923, and the Special Commissions of Inquiry Act 1983 for the Crown to appoint counsel or solicitors to assist the Commission.³¹

5.25 The main reason why

• 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

may wish to record the proceedings, or part of the proceedings, would be to obtain a daily record that can be studied while the hearing continues. To some extent it might be a substitute for the transcript provided by the Court Reporting Branch of the Department of the Attorney General and of Justice. Daily transcripts can be provided by the Court Reporting Branch for the Supreme Court the District Court the Industrial Commission and the Workers’ Compensation Commission although it is rare to be able to obtain daily transcripts for the District Court and the Workers’ Compensation Commission.³² Where daily transcripts are available, they are provided to parties and their legal representatives at a present cost of $1.50 per page.³³ Moreover, in some circumstances there can be a delay in obtaining a transcript. A judge may not wish to have a daily transcript provided (although a court reporter would still be present to take shorthand notes). If, for example, a barrister later requested a transcript to assist in advising on a possible appear there could be some delay while the shorthand notes of the court reporter were transcribed. Even where a daily transcript is provided, this usually includes only the evidence that has been presented in court. Other parts of the proceedings, such as addresses by counsel are not recorded by court reporters unless this is specifically requested by the presiding Judge.

5.26 At present a barrister or solicitor appearing in proceedings before a court or Commission may seek the permission of the judge, magistrate or Commissioner to record all or part of the proceedings. As previously stated, there is no statutory provision which prohibits the use of sound recorders in New South Wales courts and Commissions. In England the Contempt of Court Act 1981 (Eng) allows any person to seek the leave of the court to use a sound recorder.³⁴ 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...”³⁵

During the Parliamentary Debates on the Contempt of Court Act 1981 (Eng) it was said that there were strong reasons for allowing the legal advisers of parties to use sound recorders in court particularly where any difficulty is experienced in obtaining a transcript of the days proceedings.³⁶

Recommendations

5.27 We recommend the creation of a right on the part of parties to court proceedings and their legal representatives, persons authorised to appear before a Commission and their legal representatives, and also persons appointed by the Crown to assist a Commission, to record the proceedings in which they are involved. There is in our opinion an overwhelming case to support this recommendation. We believe that these persons should be entitled to the benefits of technological innovations such as unobtrusive sound recorders for the preparation and presentation of cases. Our consultants have emphasised that these innovations will assist the efficient conduct of proceedings. The right and its exercise should be subordinate to the power of the court or Commission to prohibit or order the cessation of the use of a sound recorder where it is believed on reasonable grounds that the use of the sound recorder constitutes a substantial interference with the administration of justice or the functions of the court or Commission or that such interference would occur if recording were permitted. We further recommend that the following conditions should generally apply.

• The recording shall be used solely for the purposes of the particular proceedings.
• No part of the recording may be broadcast to the public or used for any purpose other than the foregoing except with the leave of the court or Commission.
• The recording of the proceedings shall be made available only to:
  
  (i) where the proceedings recorded are court proceedings, a party to the proceedings and his or her legal representatives;

  (ii) where the proceedings recorded are proceedings of a Royal Commission or a Special Commission of Inquiry, a person authorised to appear before the Commission and his or her legal representatives;

  (iii) where the proceedings recorded are proceedings of a Royal Commission or a Special Commission of Inquiry, a person appointed by the Crown to assist the Commission;

  (iv) a servant or agent of any of the persons described above;

  
  and then only for the purposes of the proceedings.
• No copy of the whole or any part of the original recording shall be made by any person and a person shall not have in his or her possession a sound recording which is a copy of the original recording.
• The recording shall not, except with the leave of the court or Commission, be used to correct or call in question the whole or any part of an official transcript of the proceedings.

We also recommend that legislation should provide for penalties to be imposed in the event of a breach of any of these conditions.³⁷

COURTS AND COMMISSIONS TO WHICH OUR RECOMMENDATIONS WILL APPLY

5.28 Our opinion is that legislation implementing the recommendations in this report should apply to Royal Commissions and Special Commissions of Inquiry established after such legislation takes effect. We do not believe that the legislation should also apply to Commissions established prior to that time but still conducting proceedings when the legislation takes effect.

5.29 As far as courts are concerned the recommendations are intended to apply to the following courts of law:

• the Supreme Court of New South Wales;
• the Land and Environment Court of New South Wales;
• the Industrial Commission of New South Wales;
• the District Court of New South Wales;
• the Workers’ Compensation Commission of New South Wales;
• Courts of Petty Sessions;
• Coroners Courts.³⁸

There are in New South Wales many tribunals that are required to act judicially “in the sense that the proceedings must be conducted with fairness and impartiality.³⁹ Yet this does not mean that these tribunals are courts of law. In Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation,⁴⁰ Lord Sankey LC. said:

“The authorities are clear to show that there are tribunals with many of the trappings of a Court which nevertheless, are not courts in the strict sense of exercising judicial power ... In that connection it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court 6. Nor because it is a body to which a matter is referred by another body.⁴¹

5.30 More recently, Lord Edmund-Davies listed several other factors which he stated were “not decisive” in determining whether a tribunal is a court of law.

• The fact that the tribunal is called a “court”.
• The necessity of sitting in public.
• The fact that the tribunal has power to administer oaths and hear evidence on oath.
• The fact that prerogative writs may issue in relation to the tribunals proceedings.
• The fact that absolute privilege against an action for defamation protects those participating in its proceedings.⁴²

His Lordship concluded:

“At the end of the day it has unfortunately to be said that there emerges no sure guide, no unmistakable hall-mark by which a court ... may unerringly be identified. It is largely a matter of impression.”⁴³

5.31 In a recent decision of the Victorian Supreme Court,⁴⁴ Starke J., in considering whether the Workers Compensation Board established under the Workers Compensation Act 1958 (Vic.), is a court of law, referred to a large number of features of the Board including the provisions governing contempt of the Board, costs and taxation the procedure for taking evidence and the allowance of cross-examination and concluded:

“Whilst some or all of the matters referred to above if taken alone would be insufficient to constitute the Board a court of law, when taken together it appears to me that an impressive case is made out that the legislature intended to set up, and did set up, a court of law to deal with the complex and important issues which arise under the Workers Compensation Act.”⁴⁵

Recommendation

5.32 It is not possible nor is it necessary for this report to identify all tribunals in New South Wales which may be categorised as courts of law or as exercising judicial power. Ultimately this must be resolved by courts themselves in the case of particular tribunals if and when the question arises for decision While we limit our recommendations to the courts listed in paragraph 5.29, we take the view that as the use of sound recorders in courts by representatives of the news media, legal representatives and others develops and the advantages become apparent, tribunals in New South Wales whose proceedings are open to the public and the news media could, in the public interest follow the principles of this report and allow the use of sound recorders. We recommend that the draft legislation should allow for regulations to be made which would prescribe as courts bodies other than those listed in paragraph 5.29 should this be considered desirable at a future date. These additional courts would then be subject to the provisions of the legislation in relation to the use of sound recorders.

FOOTNOTES

1. We note that there may be occasions when representatives of the news media are permitted to remain in court while other persons are excluded. Section 186(1) of the Community Welfare Act 1982 (which is yet to be proclaimed), provides that any person not directly interested in proceedings before a children’s court shall be excluded from the 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. In these circumstances, where representatives of the news media may remain in court and report the proceedings, we see no reason why they should not be allowed to use a sound recorder as of right in substitution for, or in addition to, hand written notes, subject of course to the conditions outlined later in this chapter.

2. Willing’s Press Guide 1982 (108th Annual Edition 1982), pp.726-753.

3. John Fairfax Ltd. Publishes the Sydney Morning Herald and The Sun which in March 1983, had circulations of 255,748 and 303,721 respectively. A Sunday newspaper published by the same company The Sun Herald had a circulation of 671,654. These statistics are reprinted from The Australian Press Council Annual Report No.7, 1983, p.65.

4. Australian Broadcasting Tribunal Annual Report 1981-1982 (1982), pp.79-94. The figures do not distinguish between medium frequency (MF) stations or frequency modulation (FM) stations.

5. Id., pp.95-106.

6. Australian Broadcasting Tribunal Annual Report 1979-1980 (1981), p.146.

7. Note 4 above, p.156.

8. Letter from the New South Wales Bar Association, 30 November 1983.

9. G. Sawer, “Privilege” in The Australian Press Council, To Name or Not to Name (1980), p.11.

10. A. Denning, The Road to Justice (1955), p.64.

11. Maryland v. Baltimore Radio Show Inc. (1950) 338 U.S. 912, per Frankfurter J., at p.920.

12. Richmond Newspapers Inc. v. Commonwealth of Virginia (1980) 448 U.S. 555, at p.586, f.n.2.

13. In re Andrew Dunn and the Morning Bulletin Ltd. [1932] St R. Qd. 1, at p.15.

14. Note 12 above, at p.987, quoting Nebraska Press Association v. Stuart (1976) 427 U.S. 539, at p.587.

15. See for example, H. McQueen, Australia’s Media Monopolies (1977).

16. B. Harris, The Courts, The Press and The Public (1976), p.9.

17. Letter from Mr. S.M. Littlemore, 3 November 1983, and letter from the New South Wales Bar Association, 30 November 1983.

18. Information received from AIWA Australia Pty. Ltd,, Sanyo Australia Pty. Ltd. and Sony Australia Pty. Ltd.

19. G. Borrie and N. Lowe, The Law of Contempt (1973), p.206. According to Arlidge and Eady, whether the influence or persuasion in fact amounts to contempt will depend upon whether the purpose is that the witness shall give true or false evidence; the means employed to persuade the witness; and the degree of risk and prejudice involved: A. Arlidge and D. Eady, The Law of Contempt (1982), para.4-107.

20. P.J. Atkins, The New South Wales Solicitors’ Manual (3rd ed., 1975), p.49.

21. LA. Hallett, Royal Commissions and Boards of Inquiry (1982), p.24.

22. See paras.3.28-3.31.

23. See Lockwood v. The Commonwealth (1954) 90 CLR 177, per Fullagar J., at p.181; R. v.Arrowsmith [1950] VLR 78, per Dean J., at p.85.

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

25. Home Office v. Harman [19821] All E.R. 532, at p.536.

26. Id., per Lord Roskill at p.554.

27. Mr. D. Levine, Mr. T. Molomby, Professor KG. Nettheim and the Law Society of New South Wales.

28. Letter from the Law Society of New South Wales, 5 December 1983.

29. Letter from Mr. D. Levine, 7 November 1983.

30. Royal Commissions Act 1923, s.7(2) and Special Commissions of Inquiry Act 1983, s.12(2). See paras.3.22- 3.23 and para.3.31.

31. Royal Commissions Act 1923,s.7(1) and Special Commissions of Inquiry Act l983, s.12(1). See paras.3.27 and 3.31.

32. This point was stressed in the letter from the Law Society of New South Wales. We have been informed by the Recording Services Section of Magistrates Courts Administration that it is also rare to be able to obtain a daily transcript for Courts of Petty Sessions.

33. Information supplied by the Court Reporting Branch of the Department of the Attorney General and of Justice.

34. Contempt of Court Act 1981 (Eng.), s.9. See para. 4.5.

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

36. Parliamentary Debates (Hansard), House of Lords (1981), vol. 416, col.380-381.

37. Of course. other sanctions maybe imposed on barristers and solicitors, who have a special relationship with the court and, in the words of Arlidge and Eady, “should be scrupulous to obey the orders of the court”: note 19 above, p.54. See also pp.54-57, 189-194. In the case of solicitors, who are officers of the court, the court has:

“a punitive and disciplinary jurisdiction... which is exercised, not for the purpose of enforcing legal rights but for the purpose of enforcing honourable conduct on the part of the Court’s own officers.” (Re Grey [1892] 2 Q.B. 440, at p.443)

39. Halsbury’s Laws of England, vol. 10 (4th ed, 1975), para. 702. The concept of “judicial power” as distinct from a requirement to act judicially, has been considered in a number of Australian cases in the context of s.71 of the Constitution which vests judicial power in certain federal courts and such other courts as Parliament invests with federal jurisdiction. See, for example, Huddart Parker & Co. Pty. Ltd. v. Moorehead (1909) 8 CLR. 330, per Griffith C.J., at p.357; R. v. Kirby; ex parte Boiler Makers’ Society of Australia (1956) 94 CLR 254; Attorney-General (Cth) v. The Queen (1957) 95 CLR 529 (P.C.); and C. Howard, Australian Federal Constitutional Law (2nd ed., 1972), pp.154-190.

40. [1931] AC 275.

41. Id., at pp.296-297.

42. Attorney-General v. British Broadcasting Corporation [1981] AC 303. at p.348.

43. Id., at p. 351.

44. Trevor Boiler Engineering Co. Pty. Ltd. v. Morley [1983] V.R. 716.

45. Id., at p.720.