Lawlink NSW: 15. The media and the courts

15.1 In Discussion Paper 43 (“DP 43”), the Commission acknowledged the importance of a good relationship between the media and the courts as a way of minimising the risk of prejudice to court proceedings. A co-operative relationship, based on open communication, represents a significant first step in preventing breaches of the sub judice rule and fulfilling the fundamental aim to which that rule is directed, namely, to ensure that the fairness of the judicial system is not compromised by media publicity. Representatives of the media have suggested that there are ways in which communication between the media and the courts in New South Wales could be improved.¹ In DP 43, we referred briefly to initiatives that have been taken in this state to improve the relationship between the media and the courts, and further reforms that could be considered.² We also discussed initiatives taken in Victoria to ensure a good relationship between the media and the courts.

15.2 Since the release of DP 43, we have consulted further with the media and those involved in court/media liaison.³ Representatives of the media have cited several practical matters that, they suggest, have a significant impact on their ability to report on the courts and avoid liability for sub judice contempt. These include having a means of confirming whether a matter is pending or currently being heard in a court and verifying the details of that matter, timely access to comprehensive information about suppression orders, and access to transcripts. Another issue, access to court documents, was also referred to. On the part of those working in the courts, emphasis has been placed on the importance of proper training of journalists involved in court reporting, and ensuring that they have a sufficient level of experience and/or supervision to report accurately and in a way that does not compromise court proceedings. The Commission discusses access to, and reporting on, court documents in Chapter 11 of this Report.

15.3 Victoria has been held up by representatives of the media as a model for New South Wales to follow for court/media liaison. In fact, there is already a strong foundation in New South Wales on which to build a good relationship between the courts and the media. Several media liaison positions exist in key areas of the justice system in this state that potentially go a long way in facilitating communication between the media and the courts.

15.4 A strategy that has worked well in Victoria that could assist in ensuring a co-operative relationship between the media and the courts in New South Wales is the creation of a courts/media committee, consisting of representatives from both the media and the courts. It would provide a central forum for discussion of practical problems and areas of concern for the media and the courts, and provide a channel of open communication to try to resolve these concerns. It would also, to some extent, take the burden away from single individuals to liaise between the media and the courts, and would hopefully raise awareness of, and commitment to, the importance of a co-operative relationship between the two.

15.5 Below is a summary of the key positions that already exist in New South Wales to assist in court/media liaison, as well as issues relating to those positions that were raised in consultation. We also discuss the initiatives that have been taken in Victoria and recommend that some of these initiatives be adopted in New South Wales.

15.6 At present in New South Wales, there are several positions in key government departments that provide a source of information to the media about court proceedings.

15.7 Public Information Officer to the Chief Justice of New South Wales. The Public Information Officer provides the media with information about proceedings in the New South Wales Supreme and District Courts and some Local Court matters. For example, the Public Information Officer will answer media queries about particular cases, help them to understand court orders and judgments and provide one-on-one or small group information sessions for new journalists on court reporting. She also handles enquiries from the media about access to court files and filming within the Supreme Court.

15.8 On a day-to-day basis, the Public Information Officer notifies the major media outlets when a suppression order has been made, as well as the terms of the order. As in Victoria, the Public Information Officer relies on the individual judicial officer, his or her associate, or counsel, to inform him or her when such an order has been made, so that he or she can then notify the media.

15.9 While it is impossible to know whether she is routinely kept up to date on the existence of suppression orders, the present Public Information Officer considers that the current system of keeping the media informed is relatively effective, but that the system relies on the co-operation of others. No major problems have arisen in terms of the media being unaware of the existence of an order. She did note that this system of notification is probably more effective in relation to suppression orders made in the Supreme Court than in the District Court, although the computer court files of the District Court often note suppression orders. As for the Local Court, journalists often seek information first from the Clerk of the Local Court. While judicial officers are expected to be made aware of the role of the Public Information Officer by their head of jurisdiction, in general she considers that judicial officers are sufficiently aware of her position to know that they can and should inform her of matters of significant media interest, including suppression orders. She noted also that Associates should be proactive in letting her know when a judicial officer has made a suppression order. In December 2001, materials were circulated to Associates of Supreme and District Court judges about handling media enquiries received in Chambers.

15.10 One matter relating to suppression orders that perhaps could be improved is the timeliness in which the Public Information Officer is informed of an order. The present Public Information Officer has found that sometimes she is not informed of the making of an order until after 4 pm. From the media’s point of view, notification of an order that late in the afternoon may create significant problems if the deadline for preparing a report has already passed, particularly in the case of reports broadcast on the radio. As well, the terms of the order are sometimes not detailed enough to allow the Public Information Officer, and consequently the media, to know exactly what information is to be suppressed. The Public Information Officer has also suggested that it would be helpful to note the existence of a suppression order on the electronic file relating to a matter. This would provide a quick point of reference for her, and for the Registry, to answer media queries about such orders.

15.11 The Public Information Officer has also suggested that the procedure for putting judgments on the Internet needs reviewing. At present, it is up to the individual judicial officer to decide whether or not to arrange for his or her judgment to be publicised on the Internet, and sometimes this may not occur until a week after the decision has actually been handed down. This can be frustrating for media who are attempting to gain timely access to judgments. Judgments of the District Court are quite often typed by Chambers and hard copies given to parties, but not made available to the media. They are instead referred to the Registry, which often does not have the Court file back from Chambers. This is very frustrating for the media. Waiting for Court Reporting Services Branch to produce District Court judgments delivered ex-tempore is often not possible and the media will and do run stories without having read the judgment.

15.12 Media Relations Officer, New South Wales Office of the Director of Public Prosecutions. The Office of the Director of Public Prosecutions (“DPP”) employs a Media Relations Officer as a consultant on contract to liaise with the media solely on its behalf. The Media Relations Officer provides an initial contact for the media and can assist them in obtaining information about prosecutions conducted by the DPP, such as the details of certain charges. He can also arrange media interviews with the DPP. The DPP considers that the engagement of a consultant as Media Relations Officer has resulted in a more co-operative relationship between his Office and the media, and has lifted the burden of initial media contact from a number of his officers.⁴ There was some suggestion in consultation with media representatives that the DPP’s engagement of a Media Relations Officer is not universally known among the media, and that officers at the Office of the DPP do not always refer the media on to the Media Relations Officer as a point of contact when the media call the Office for information.⁵

15.13 Police Media Unit. The Police Media Unit is established as the point of contact between all major media outlets in New South Wales and the police. It handles enquiries from the media, co-ordinates media conferences and issues news releases. Journalists are invited to register their contact information on the New South Wales Police Service website to receive, via email, media releases and updates issued by the Police Media Unit. Police officers are advised to notify the Police Media Unit and provide them with a full briefing of any matter representing significant media interest.⁶

15.14 When giving information to the media about a person who has been arrested and/or charged, or likely to be charged, it seems that it is current police policy not to give information to the media that would identify the person.⁷ This may make it difficult for the media to follow up on a case, such as inquiring about details of a subsequent prosecution conducted by the DPP.⁸

15.15 Representatives of the media have referred to Victoria as the most congenial state in which to work, because of the co-operative relationship that exists there between the media and the courts. The position of Courts Media Information Officer (“CMI Officer”) has existed in Victoria since 1993. The role of the CMI Officer is to liaise with the media on behalf of all Victorian courts, and act as a central point of contact and assistance for the media.

15.16 An important part of the CMI Officer’s day-to-day work consists of notifying the media of suppression orders or other orders affecting publication. Copies of the orders are sent by facsimile to approximately 25 media organisations and their lawyers. The CMI Officer also liaises with judicial officers to ensure that the terms of suppression orders are as clear and precise as possible, in order to assist the media in complying with them. She sends out alerts to the media about suppression orders that have been made in the past that remain current, and other problems the media should know about. The CMI Officer is notified about suppression orders by judges’ associates and court clerks. Sometimes she may hear about an order and make further inquiries. As well, she sometimes makes requests to the media on behalf of a judicial officer to restrict reporting on a particular case. The media usually follow such requests.

15.17 The CMI Officer also offers practical assistance to members of the media in understanding the legal requirements of court reporting, by offering regular seminars with the media on court reporting and ways of avoiding liability for contempt, and providing detailed written guidelines on court reporting for journalists. A document called Covering the Courts – A Basic Guide for Journalists has been developed to assist journalists reporting on court proceedings. It contains a series of guidelines that have been developed by the Courts Information Officer to educate members of the media on the legal requirements of court reporting. The Guide is available on the Internet as well as in hard copy.

15.18 Some of the CMI Officer’s work involves pointing the media in the right direction for assistance if she cannot help them herself. In this way, the CMI Officer has become a point of contact for the media in relation to court matters. The guide, Covering the Courts, includes contact names and telephone numbers for those handling media inquiries in various government departments and courts, such as the Victorian and Federal DPP, and the Federal and Family Courts in Victoria.

15.19 The CMI Officer is available to provide assistance to the media in rural, as well as metropolitan, Victoria. However, although she receives requests for assistance from country reporters from time to time, in general, County Court registries are good in giving information to the media, especially on suppression orders.

15.20 The CMI Officer does not have a role in assisting the media at the stage where a person has been arrested or charged. If she receives inquiries from the media at that stage, she may either suggest that the media go directly to the police.

15.21 In addition to the CMI Officer, there is a Media Committee in Victoria, established by the then Chief Justice in 1993. Justice Bernie Teague is the current chair of the Committee. Its other members include a representative of the County Court and the Magistrates Court, the state DPP, solicitors working in the area of media law, and two journalists. The federal DPP and the Media Liaison Officer of the Federal Court also attend meetings of the Committee when necessary or appropriate. The Committee meets on a needs-basis to discuss issues of concern to the courts and the media, and to formulate means of addressing these concerns. For example, there are protocols for reporters to obtain trial transcripts, or to film and take photographs in court.

15.22 There have also been recent initiatives in Victoria regarding the use of tape recorders in court.⁹While this may be a further initiative worth considering in New South Wales to facilitate accurate court reporting, it really goes beyond the scope of our current reference to make any recommendation to this end. Similarly, the issue of the media’s access to transcripts, which appears to be easier in Victoria than in New South Wales,¹⁰is an initiative worth considering but lies beyond the scope of our reference.

15.24 While the Public Information Officer of the Supreme Court already does much to facilitate communication between the media and the courts, her current functions go beyond media liaison, and extend to other facets of public relations, such as educating members of the public on the functions of the Court. Recommendation 15(a) proposes that a position be established specifically for liaising between the media and the courts, as has been done in Victoria, which would allow the media information officer to focus solely on the demands involved in facilitating communication between the media and the courts.

15.25 Recommendation 15(b) is similarly based on the Victorian model. It aims to ensure a co-operative relationship between the media and the courts by allowing their representatives to discuss and address together issues of concern.

15.26 Finally, recommendations 15(c) and 15(d) deal specifically with the issue of suppression orders. Recommendation 15(c) aims to ensure that the media is consistently made aware of the terms of such orders by establishing a protocol within the courts for posting the orders on their websites. We consider that it is more efficient and effective to use the court websites for such communications rather than requiring the media information officer to fax notices of the orders to individual media organisations. Recommendation 15(d) requires the registry of the relevant court to make available to the public the terms of current suppression orders, to ensure that the media have every opportunity to make themselves aware of, and comply with, such orders.

Table of Contents

1. See Media Liaison Officers, Consultation; TV and Radio Representatives, Consultation.

2. See NSW Law Reform Commission, Contempt by Publication (Discussion Paper 43, 2000) at para 1.47-1.63.

3. See Media Liaison Officers, Consultation; K Ashbee, Telephone consultation.

7. See NSW Police Service, NSW Police Service Handbook (1999) at M-4 to M-5; Media Liaison Officers, Consultation.

8. It appears that if the media wish to inquire about a prosecution conducted by the DPP, they are required to provide the DPP with a name of the person charged: see Media Liaison Officers, Consultation.

9. For example, the Magistrates Court has agreed on new guidelines that allow reporters to use their own tape recorders in court for the purpose of gaining a fair and accurate report, on the provision that they first sign an undertaking.

10. It may be, however, that this is more a matter of resources than of any differences in protocol between the two States.