August 12, 2019 Feature

The View from Oz

By Justice François Kunc

While Australia and the United States have much in common, there are some differences Americans may find surprising and that have a real impact on the relationship between judges and the media.

If Dorothy Gale from The Wizard of Oz was a judge and a trans-Pacific twister (sometimes called a willy-willy in Australia) carried Judge Gale all the way to Sydney, many things would seem familiar to her. However, even before she got to the Harbour Bridge and the Sydney Opera House, saw her first koala or kangaroo, or narrowly avoided being run over because the cars drive on the other side of the road, her Honour would also quickly discover that she wasn’t in Kansas anymore if she spoke to some local judges about the relationship between them and the media.

This article discusses some of the differences Judge Gale would discover. After providing a brief overview of some similarities and differences between Australia and the United States and their judicial systems, this article addresses four topics about judges and the media in Australia: judges talking to the media, judges in the media, judges’ impact on the media, and judges and social media.

Similar but Different

Despite Winston Churchill’s aphorism that two countries can be separated by a common language, Judge Gale would have no trouble making herself understood, even if Australians think that trunks belong on trees and elephants (and not in the back of cars, which we call boots) and gas is the third state of matter, rather than what goes into a car (we would say petrol). More importantly, the American visitor would find that Australian judges shared with her the language of the English common law.

America cut ties with Britain after a revolutionary war that gave birth to the Declaration of Independence, the U.S. Constitution, and then the Bill of Rights. Australia remains a member of the Commonwealth with the queen as its head of state. Australia’s process of constitutional nation building was in stark contrast to the War of Independence.

In 1889, in a rural part of the Colony of New South Wales, Sir Henry Parkes delivered the Tenterfield Address, sometimes called Australia’s Gettysburg Address. The comparison is overblown and does a great injustice to Lincoln’s short masterpiece. Nevertheless, the speech is important to demonstrate that the Commonwealth of Australia was born of practical necessity rather than revolutionary fervor. Parkes asked, “surely what the Americans have done by war, Australians can bring about in peace?” His argument to unite the Australian colonies was prosaic rather than poetic: the need for a common army (shades of the Second Amendment—some feared the Russian Imperial fleet would come sailing up Sydney Harbour with only local militias to protect the colony) and an end to each Australian colony having its own railway gauge.

After years of debate, it was not until 1900 that the British Parliament at Westminster, at the request of the Australian colonies, finally passed the Commonwealth of Australia Constitution Act 1900 (UK), which took effect on January 1, 1901. So Australia’s Constitution, technically an act of the British parliament, creates what is sometimes called the “Washminster system”1 or a “British heart in an otherwise American federal body.”2 It is a federal system of states, territories, and a national government, but with responsible parliamentary government in the English model: All ministers and the prime minister are required to be members of parliament, with the government formed by the party that can guarantee supply in the House of Representatives.

Notwithstanding these differences, Judge Gale would immediately recognize a Senate to represent the states and a federal judicial structure closely modelled on the U.S. Constitution, with the High Court of Australia (equivalent to the U.S. Supreme Court) exercising the power of judicial review. The system of parallel state and federal courts would remind her of home. She might also chuckle at the adherence to the English division between solicitors and barristers, the latter still (like some of the judges, including this author) wearing their black gowns and horsehair wigs to court.

However, for the purposes of this article, it is important to highlight two particular differences. First, Australia has no constitutionally protected national bill of rights (three states have charters of rights that have very limited practical effect). Specific rights, such as freedom from discrimination in employment, are protected in specific legislation that can be changed by whichever party is in government. The founders put their faith in the common law and the presumption that people could do whatever was not against the law. Every attempt to introduce a bill of rights since 1900 has failed. So, there is no First Amendment and no New York Times Co. v. Sullivan.3 It was nine decades after federation that the Australian High Court found that there was a right of freedom of political speech implied in the Australian Constitution.4 In the meantime, newspapers and others have to navigate defamation laws that at least some American politicians probably wish existed in their country.

Second, all Australian judges are appointed by the federal or state government by opaque processes, with fixed terms of service until between 70 and 75 years of age (depending on the jurisdiction). Public confirmation hearings are unknown. Judges can only be removed by parliament after a complex process for serious incompetence or misconduct (it has rarely happened) and their salaries cannot be reduced. And when she learns that Australia is one of the few countries in the world that enforces compulsory voting, Judge Gale might ask, “Well, how about electing judges?” The instinctive Australian reaction to that suggestion has always ranged from incredulity to horror.

Judges Talking to the Media

In Australia, most of the norms of judicial conduct are seen as matters of ethics. While there are no “judges’ rules” as such, there are two standard points of reference: the Guide to Judicial Conduct (the Guide), published for the Council of Chief Justices of Australia and New Zealand,5 and a comprehensive scholarly book on judicial ethics written by a retired judge.6

The touchstones for talking to the media are the needs to maintain impartiality and to avoid political controversy. It remains rare for judges, even heads of jurisdiction, to engage with the media. There is an absolute prohibition on judges commenting on or seeking to explain their own judgments, no matter how outrageous or misguided any criticism may be. The judge’s reasons must speak for themselves.

The Guide states that a judge “must avoid involvement in political controversy, unless the controversy itself directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice.”7 Even in relation to those exceptions, the default position is that only a head of jurisdiction will speak to the media.

That being said, there are some acceptable types of “soft” media appearances. These include interactions with media and community groups to explain sentencing principles or other matters about how the law works and, especially with heads of jurisdiction, interviews on their appointment and their retirement. Even when explaining how the law works, judges are careful not to engage in debates about the merits of particular decisions or giving an indication of how they might rule on a particular question.

Most courts have media officers who deal with media inquiries. Competent journalists know that it is inappropriate to contact a judge’s chambers.

Judges in the Media

Australian judges are public officials and their decisions are open to public scrutiny. From time to time their decisions will be the subject of adverse media comment, sometimes informed and at other times more strident than sensible. Sentencing often attracts media comment, particularly during state election campaigns, which frequently include a “law and order auction” (but remembering that Australia does not have capital punishment). A judge must remain silent in the face of that criticism.

Following the English example, it was once the role of the attorney general to “defend the judiciary,” but few now seem to take on that burden. It is left to the Judicial Conference of Australia (JCA), a voluntary association of judges, and professional legal bodies.

A recent example that drew international attention concerned one of the first decisions to recognize the impact of climate change, an issue on which Australia remains deeply politically divided because exporting coal is a major part of the country’s economy. For relatively standard reasons, the New South Wales (NSW) Independent Planning Commission refused development consent for a small mine in a picturesque valley. The mine operator exercised its right to a merits review of the decision.

The review was heard by Justice Brian Preston, chief judge of the NSW Land and Environment Court. His Honour reached the same conclusion as the Commission and refused consent,8 citing the same familiar grounds including that the mine would have significant impacts on the visual amenity and rural scenic character of the valley; significant social impacts on the community and particular demographic groups in the area, including indigenous groups; and significant impacts on the existing, approved, and likely preferred uses of land in the vicinity of the mine.

His Honour acknowledged that these reasons were sufficient to refuse the approval, but went on. In a section headed “The impacts of the mine on climate change,” he held, “All of the direct and indirect GHG [greenhouse gas] emissions of the Rocky Hill Coal Project will impact on the environment. All anthropogenic GHG emissions contribute to climate change. . . . The direct and indirect GHG emissions of the Rocky Hill Coal Project will contribute cumulatively to the global total GHG emissions. . . . It matters not that this aggregate of the Project’s GHG emissions may represent a small fraction of the global total of GHG emissions. The global problem of climate change needs to be addressed by multiple local actions to mitigate emissions. . . .”9

Environmentalists around the world hailed the case a global victory. But some media quickly offered scathing criticism, not just of the decision but also of the judge, to a point rarely experienced in Australia. Headlines included “Absurd Rocky Hill decision tarnishes rule of law,” “Mine judge’s green links,” “Did environment court judge veer from justice to morality?,” “Activist judge shakes climate change world.” His Honour’s speeches were combed through and much attention was given to his role in 1985 in establishing the Environmental Defenders Office, which had acted for the successful opponents to the mine. Only some of the reports noted that no party had asked the judge to recuse himself.

Professional bodies such as the NSW Bar Association, the NSW Law Society, and the JCA were quick to come to the judge’s defense. Justice Judith Kelly, president of the JCA, wrote that while reasoned criticism of a judicial decision was part of ordinary civic discourse, “the JCA is most concerned that serious allegations of impropriety and dishonesty have been made against a judge for which the author has offered no basis other than the fact that he doesn’t like the logic of the judge’s reasoning.”10 Through all of this, Justice Preston, consistent with Australian law, custom, and practice, remained silent (although surely this must have been a challenge given the pervasiveness of the media criticism).

Judges’ Impact on the Media

Although rarely exercised, judges can hold the media in contempt of court, but usually the threat of doing so obviates the need to do so. A famous example was in 2017 when one of the most serious confrontations in many years happened between the courts, the media, and politicians.

The Court of Appeal of the Supreme Court of Victoria was hearing a Crown appeal contending that the sentences in some terrorist cases were manifestly inadequate. In the course of argument, the judges referred to NSW courts imposing longer sentences than Victoria, with the latter giving more emphasis to youth and rehabilitation prospects. The reporting of those remarks caused three Commonwealth ministers, all lawyers, to send comments to The Australian, a national newspaper. Those comments included referring to the Victorian judges as engaging in “ideological experiments,” being “hard-left activist judges,” and “divorced from reality.”

The ministers’ comments were published by The Australian on its front page under the heading “Exclusive: Judiciary ‘light on terrorism.’” The next day, the Judicial Registrar of the court (a position similar to a chief court clerk in the United States) wrote to the newspaper and the ministers: “The attributed statements appeared to intend to bring the court into disrepute, to assert the judges have and will apply an ideologically based predisposition in deciding the case or cases and that the judges will not apply the law. The attributed statements, on their face, also appear to be calculated to influence the court in its decision or decisions, and to interfere with the due administration of justice in this state.” The newspaper and the ministers were required to appear before the court “to make submissions as to why you should not be referred for prosecution for contempt.” In the meantime, the JCA and other legal bodies issued statements condemning the ministers’ statements as an affront to the separation of powers and what could be seen as an improper attempt to influence a case under judicial consideration.

When the matter returned to court, The Australian immediately offered a “full and sincere apology.” The Commonwealth Solicitor-General appeared for the three politicians. Initially he told the Court his clients would not retract their comments. After strong questioning from the bench, his instructions changed during the course of the hearing and the most contentious comments were withdrawn. However, despite being asked if an apology would be forthcoming, no apology was offered. The Court reserved its decision on whether to refer the ministers’ conduct to the Office of Public Prosecutions. The following week, the ministers apologized to the Court, stating they never intended to influence the Court and that they would “exercise great care in the future.” It is hard to imagine similar action being threatened by a U.S. court against The New York Times or a cabinet secretary, when the First Amendment provides such a powerful shield.

More recently, the trial in Victoria of Cardinal George Pell for child sex abuse has focused international attention on the power of Australian judges to suppress reporting of what happens in the courtroom.11 For Americans, suppression orders are the most stark consequence of the absence of a general right of free speech.

In addition to the inherent jurisdiction of a court to control its own processes, legislation has been passed to enable a judge to prevent the publication of material for proper reasons. In Victoria it is the Open Courts Act 2013 (Vic), a title that its critics find rather ironic. In New South Wales it is the Court Suppression and Non-Publication Orders Act 2010 (NSW). While that Act acknowledges that open justice is a primary feature of our legal system, section 8 provides:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including [specified offenses]),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

The reason for the order suppressing reporting of Cardinal Pell’s trial was not unusual: to prevent prejudicing a further trial on different charges.12 Nevertheless, most Australians knew nothing of a first trial, where a mistrial was declared when the jury was unable to reach a verdict, and the second trial on the same charges, which ended with a conviction in December 2018 by a county court jury.

On the day after Cardinal Pell’s conviction, Australians woke to unusual headlines in local papers such as “CENSORED” and “It’s the nation’s biggest story—but we can’t report it.” In the eyes of some observers, the articles verged on acts of civil disobedience. The case became a textbook example of the difficulty of such orders being enforced in an era of international online media, both professional and social.

As would be expected, those news organizations susceptible to the Victorian court’s jurisdiction obeyed the order. On the other hand, details of the conviction were available to Australians if they visited online sites such as The Washington Post or The Daily Beast, although the latter subsequently geoblocked Australian readers.

The New York Times explained its position in its regular “Australia Letter”:13

There is a criminal case unfolding in Australia that shall not be named. The defendant is a figure with a global reputation, someone of great influence in the country and the world. The charges are serious and of significant public interest.

But publishing news about this case is illegal.

Judges in Australia and some other countries, including Britain, often issue gag orders that temporarily restrict the publication of information related to a criminal proceeding on the grounds that it might sway jurors or potential jurors.

Sometimes, judges even require the existence of these orders to be kept secret.

In this case, something unusual is happening—the sweep of the restrictions is so all-encompassing that the conflict between the public’s right to know and the defendant’s right to a fair trial is rippling across the internet and the world, touching news outlets and institutions in distant countries.

If you’re not in Australia, you may have already read recent coverage of the case.

If you are in Australia or depend on online news from international organizations like The New York Times, The Associated Press or Reuters, you probably know nothing about it.

Gag orders, also known as suppression orders, are supposed to work that way. They usually apply to speech within a specific jurisdiction.

But the global nature of the internet has blurred the lines, giving local judges the power to threaten any website accessible to local residents, regardless of where the site or its journalists are based.

That includes The Times: The Times is not publishing the latest news of the case online, and it blocked delivery of the Friday print edition to Australia, to comply with the judge’s order. The Times’s lawyers in Australia have advised the organization that it is subject to local law because it maintains a bureau in the country.

Two Times journalists who have been covering the case would be at risk. The judge in the case has threatened journalists with contempt of court charges, which can bring up to five years in prison.

Some publications that have published the news have no full-time staff in Australia and face no such risk. Even naming them appears to be illegal. . . .

It was not long before the media applied—unsuccessfully—to have the suppression order lifted. The trial judge was reported to have said that he was “angry” at the way the case had been reported: “It is just breathtaking, [the media] bringing inappropriate and improper pressure upon me to vary or revoke my suppression order. Given how potentially egregious and flagrant these breaches are, a number of very important people in the media are facing, if found guilty, the prospect of imprisonment and indeed substantial imprisonment.”14

In February 2019, the suppression order was lifted. It has since been reported that a number of journalists and publishers have received letters from authorities inviting them to show cause why they should not be prosecuted for breaching the suppression order by writing the articles about how they could not publicize the conviction at the time.15 More recently, the matter has taken a further turn with the Victorian Director of Public Prosecutions (DPP) naming 36 organizations and individuals in a motion filed in the Supreme Court of Victoria that they be found guilty of contempt for breaching the suppression orders. Those named include the editors of major Australian newspapers such as The Australian Financial Review, The Age, The Sydney Morning Herald, and Herald Sun. On the first return date of the motion, the DPP agreed to provide further particulars of the allegations to the respondents, and the matter is ongoing.

Although causing controversy in Australia, all of this would be entirely foreign to Judge Gale, given the different treatment of the press under U.S. law. Even to begin to consider which country’s approach is better from the point of view of the due administration of justice would require a quite different, and longer, article.

Judges and Social Media

Social media have brought much change in both Australia and the United States. The most noticeable difference between the 2007 second edition of the Guide and the current 2017 edition is the addition of a chapter on social media. Although it asserts that “there is no reason in principle to deny judges the use of social media,” it at least implies, on this author’s reading, that the problems and risks outweigh any benefit. It suggests that a judge should get competent advice about privacy settings and reaffirms the fundamental requirements of maintaining impartiality and avoiding political controversy. “The only safe course,” it says, “is to assume that material which the judge creates or receives, or with which the judge comes in contact, may become public without the judge knowing, and contrary to the judge’s wishes.”16

While many Australian courts have Twitter and Facebook to make announcements and draw attention to recent decisions, I am not aware of any statistics on how many judges use social media. I suspect very few. However, one judge has accepted that he was validly criticized for tweeting his disagreement with a federal minister on a political question. He deleted the tweet after 24 hours and later said, “The criticism of me at the time was valid criticism. It wasn’t my best move.”17 Although we don’t know if Judge Gale uses social media, the concern and uncertainty in Australia about judges using social media would likely be familiar to her.

Conclusion

So, what will Judge Dorothy Gale have learned about Australian judges and the media before she returns to Kansas to remind everyone that there’s no place like home? Probably that the attitude of nearly all judges is “do not approach and, if you must, handle with extreme care.” Or perhaps, to paraphrase Judge Dorothy’s Auntie Em, “for twenty-three years, I’ve been dying to tell you what I thought of you! And now . . . well, being a judge, I can’t say it.” 

Some parts of this article are based on items that appeared in Justice Kunc’s editorial columns in the ALJ. The author expresses his sincere gratitude to his classmates at Duke for their generous sharing of their knowledge of, and experience in, the American judiciary, some of which informs the approach taken in this article.

Endnotes

1. Washington and Westminster. A judge from India is said to have remarked that the Potomac and the Thames flow into Lake Burley Griffin. That is the artificial lake in the middle of Canberra, the nation’s capital, a city built on the site of a sheep station (ranch) in the middle of nowhere halfway between the two established cities of Sydney and Melbourne that, like New York and Philadelphia, were fierce rivals to be the new nation’s capital. Recently published research into royal correspondence (see (2019) 93 ALJ 267) records that it was King George V’s “unalterable opinion” in 1926 that founding the new capital in Canberra was a mistake.

2. Stephen Gageler, Foundations of Australian Federalism and the Role of Judicial Review, 17 Fed. L. Rev. 162, 172 (1987). Gageler is now a justice of the High Court of Australia.

3. 376 U.S. 254 (1964).

4. Australian Capital Television Pty Ltd. v. Commonwealth (1992) 177 CLR 106 (Austl.).

5. Guide to Judicial Conduct (Austrl. Inst. of Judicial Admin. Inc. 3d ed. Nov. 2017), published for the Council of Chief Justices of Australia and New Zealand [hereinafter Guide]. Despite New Zealand declining to become a state of Australia at the time of federation, there is much judicial cooperation across the Tasman Sea.

6. The Hon. James Thomas AM, Judicial Ethics in Australia (3d ed. LexisNexis Butterworths, Austrl. 2009). The author was formerly a judge of the Supreme Court of Queensland Court of Appeal.

7. Guide, supra note 5, at 25.

8. Gloucester Resources Ltd. v. Minister for Planning [2019] NSWLEC 7 (Austl.).

9. Id.

10. Judicial Conference of Australia, Media Release by the President of the Judicial Conference of Australia, Feb. 27, 2019.

11. Cardinal Pell’s appeal against his conviction was heard in June 2019.

12. When the prosecution decided it would not press the further charges, the suppression order over the first two trials was lifted.

13. Damian Cave, Letter to the Editor, The Fight for and Against Australian Secrecy, N.Y. Times (Dec. 14, 2018), https://www.nytimes.com/ 2018/12/14/world/australia/secrecy-court- transparency.html.

14. Amanda Meade, Up to 100 Journalists Accused of Breaking Pell Suppression Order Face Possible Jail Terms, The Guardian (Feb. 25, 2019), https://www.theguardian.com/media/2019/feb/26/dozens-of-journalists-accused-of-breaking-pell-trial-suppression-order-face-possible-jail-terms.

15. NYT online edition, Feb. 28, 2019, https://www.nytimes.com/aponline/2019/02/28/world/asia/ap-as-australia-suppression-order-.html.

16. Guide, supra note 5, at 43–44.

17. Samantha Hutchinson, “Lex Lasry says tweet that angered Peter Dutton ’not my best move,’” The Weekend Australian (Oct. 31, 2018), https://www.theaustralian.com.au/national-%20affairs/state-politics/lex-lasry-says-tweet-that-angered-peter-dutton-not-my-best-move/news-story/a9177bef50c9743da40ff06369e5397c.

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By Justice François Kunc

Justice François Kunc is a judge of the Supreme Court of New South Wales, Sydney, Australia. He can be reached at justice.kunc@courts.nsw.gov.au. He is the general editor of the Australian Law Journal, a Fellow of the Australian Academy of Law, and a member of the 2020 class in the Master of Judicial Studies program at Duke University.