Abstract
This chapter provides an introduction to the Australian legal system and practices of court reporting, situating the various laws which govern how media may cover the courts in an international context, comparing them with countries like the USA and UK. I address perceived problems in the relationship between the media and the courts, drawing on published criticisms by members of the judiciary and responses from interview participants, addressing issues such as balance, fairness, sensationalising, access to information, changes in the digital era, and the question of trust between judiciary and media. I also consider how recent changes to the way newsrooms operate affect court reporting specifically, including changes to budgets, staffing, resourcing, journalism training, and the rise of social media.
If someone makes a mistake … it generally tends to be a judge or a barrister will go, ‘Yeah, media always get it wrong’.
—former NSW court reporter
You’re not trusted. Journalists don’t have a great reputation. And the assumption is that you’re—they’re—up to no good.
—former QLD court reporter
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Notes
- 1.
Police prosecutors are members of the police force who conduct legal research and present cases on behalf of the police in the lower courts. They typically do not have a law degree (and have at times been criticised for this).
- 2.
Except where otherwise noted, references to laws in this section draw on the Crimes Act 1900, s. 50, 54, 60, 67 (ACT ); Crimes Act 1900, 61H–61HE, 61I, 61KC (NSW ); Crimes Act 1958, s. 35–36B, 38, 40, 48B (Victoria ); Criminal Code Act 1899, s. 347–349, 352 (QLD ); Criminal Code Act 1913, s. 319 (WA ); Criminal Code Act 1924, s. 1, 2A, 2B, 14A, 127, 185 (Tas ); Criminal Code Act 1983, s. 192, 192A (NT ); or Criminal Law Consolidation Act 1935, s. 46–48, 56 (SA ).
- 3.
The terminology was changed as ‘indecent’ was considered anachronistic, and ‘[t]he core criminality of the offence is the fact that there has been sexual contact without consent’ (Criminal Law Review 2015, 10).
- 4.
As I will show in subsequent chapters, formal rules and legislation cannot ensure complete neutrality, as they do not take into account the subtleties of language and narrative I analyse. Chapter 3 complicates the concept of objectivity , showing how prosecution or defence can be privileged even while meeting existing standards of fairness and balance .
- 5.
Although there has been increasing concern amongst journalists that Australia’s defamation laws are heavily weighted towards plaintiffs, which has ‘a chilling effect’ on media (Snow 2018), court reporters are protected under the defence of ‘fair report of proceedings of public concern’ (e.g. the NSW Defamation Act 2005, s. 29). A few interview participants mentioned defamation , but were more concerned about sub judice contempt.
- 6.
Criticisms of the practice tend to argue that it is a ‘rubber stamp’ for the prosecution, rather than querying its secrecy, although they do exist (Kuckes 2004).
- 7.
Under a suppression order , the information may not be disclosed in any form; under a non-publication order , it can be disclosed or shared, but not published, which according to NSW law means ‘to disseminate or provide access to the public or a section of the public by any means’, including social media, television, and radio (Judicial Commission of New South Wales 2016, s87-320 2.a).
- 8.
In Tasmania , rape complainants are forbidden under the Evidence Act (2001, 194 K) from speaking about or publishing their experiences under their own names without obtaining special permission from the Supreme Court, although in August 2019, the Tasmanian government announced plans to reform the legislation (Martin 2019).
- 9.
Evans’ conviction was overturned, and a second trial allowed sexual history evidence to be put before the jury. The first trial had been reported in detail in the media, and Evans’ partner offered a £50,000 reward for new witnesses to come forward before launching the appeal (Royal 2019, 85).
- 10.
Some NSW court reporters noted that media are sometimes permitted to remain while a complainant gives evidence, even when the court is closed to the public.
- 11.
This is also particularly true for radio reporting and Twitter —as Gregory explained in an interview, because radio time is so short, journalists aim to balance it ‘over a day’; another journalist described court reporting and Twitter in similar terms.
- 12.
Television, radio, and social media are much more ‘coverage driven by soundbites’, due to the nature of these media. See below for discussion of social media and balance.
- 13.
Gregory (2005, 30–40) lists per-page costs ranging from AUD$0–3 (US$0–2.05) to copy court files, and search fees of $9–23 per file, as well as considerable variation between states for what information can be accessed and how. Some of these regulations have been tightened since Gregory’s book was published, and rates generally increased.
- 14.
In the US, rules still vary, and permission of the individual judge is often required but increasingly granted. The British High Court relaxed its rules in 2011, allowing Twitter coverage without the need for permission, and the Republic of Ireland continues to allow working journalists to tweet after restricting members of the public in 2018.
- 15.
The full text of the judgement can be found at: caselaw.nsw.gov.au/decision/5d0c5f4be4b08c5b85d8a60d.
- 16.
Tostee was acquitted of murder and manslaughter in October 2016 (Alexandria Utting and Staff Writers 2016).
- 17.
Media law academic Mark Pearson wrote of his experience accidentally breaching a such an order, because its existence could not be reported. As Pearson argues, ‘It is hard to inquire about a suppression order you do not know exists because discussion of its existence and contents has been suppressed’ (2015).
- 18.
Details withheld, to protect the anonymity of interviewees.
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Waterhouse-Watson, D. (2019). The Media and the Law, an Uneasy Relationship. In: Football and Sexual Crime, from the Courtroom to the Newsroom. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-33705-6_2
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