French, Justice Robert --- "Radio and television broadcasting in the Magistrates' Courts - is there a future?" (FCA) [2006] FedJSchol 3

Association of Australian Magistrates’ Conference
University of Notre Dame at Fremantle

10 January 2006

RADIO AND TELEVISION BROADCASTING
IN THE MAGISTRATES’ COURTS – IS THERE A FUTURE?

Justice RS French
Federal Court of Australia

Introduction

1. The broadcasting and televising of court proceedings in Australia is still something of a rarity although occasionally it does occur. The occurrences tend to be ad hoc and are not informed by any coherent set of principles and policies. There is a natural conservatism among judicial officers about extending the open court principle to allowing comprehensive electronic media coverage as of right. This reflects concern about the ways in which such coverage may impact upon people participating in the trial process, the integrity of the trial process, the authority of the courts and public confidence in them. No doubt many are affected by spectacles such as that of the media coverage that occurred in the OJ Simpson case in the United States and more recently the trial of Schappelle Corby in Indonesia.
2. Visceral responses to worst case scenarios however is no way to develop policy in this important area. To put it another way, hard cases make bad law. At present in Australia there has been an incremental development in ways of dealing with requests for electronic media coverage of the courts. This does have the virtue that it creates the opportunity for building a degree of mutual trust and confidence between courts and media and opens the way to a more comprehensive approach. In the end there is a need for institutional policies which go beyond a collection of discretionary responses by individual judicial officers. Those policies must be formed having regard to the need for courts to preserve the integrity of their essential function, the administration of justice according to law and to the principle of open justice. This applies as much to Magistrates Courts as it does to other courts in the Australian judicial system.

Principles in tension – Open courts and just courts

3. In January 1911 Mrs Annie Scott filed a petition in the High Court of Justice in England seeking a declaration that her marriage of 12 years to Mr Scott in 1899 was null and void because of his impotence. A Registrar appointed medical inspectors to the examination of the parties and ordered that ‘this cause be heard in camera’. Mrs Scott submitted to a medical inspection and was found to be a virgin. Mr Scott did not attend for inspection. After a hearing, a decree nisi was pronounced and made absolute in January 1912.
4. Mrs Scott then got her solicitor to obtain a transcript of the proceedings of the hearing and sent a copy to her former father-in-law and sister-in-law. Mr Scott retaliated by filing a motion asking that Mrs Scott and her solicitor be committed to prison for their contempt of court in publishing the transcript against the order that the cause be heard in camera.
5. The case went to the House of Lords which held that the order to hear it ‘in camera’ had been made without jurisdiction. The decision, Scott v Scott [1], raised issues of principle about open justice and fair justice. Radio and television broadcasting in courts raise the same questions.
6. There are two matters at stake. The first is the essential function of the courts. The second is their role as public institutions. These matters were discussed by the Lord Chancellor in Scott’s case. He declared ‘...the broad principle ... that the courts ... must, as between parties, administer justice in public...’. But that principle was subject to exceptions which were:

‘...the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done.’

7. Lord Shaw expressed the principle underpinning the public character of court proceedings by quoting Jeremy Bentham:

‘Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice... Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’[2]

8. The High Court of Australia followed Scott in Dickason v Dickason.[3] It refused a motion that it hear a matrimonial appeal in camera. Edmond Barton, then Acting Chief Justice, said (at 51):

‘This application cannot be granted. The matter appears to be concluded by the judgments of the Lords in Scott v Scott, the effect of which is that there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law, but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice.’

The other four members of the Court agreed.

9. The open court principle received constitutional recognition of sorts in relation to the exercise of federal jurisdiction in Russell v Russell.[4] Section 97(1) of the Family Court Act 1975 (Cth) provided that proceedings in State courts exercising federal jurisdiction under the Act should be closed. It was held invalid as beyond Commonwealth power to make laws investing State courts with federal jurisdiction. The decision did not directly enshrine open proceedings as a constitutional principle. Nor did it prevent courts from entering into closed sessions for a particular purpose in the interests of justice. However, Gibbs J said (at 520):

‘It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view” (Scott v Scott at p 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts.’

Gibbs J accepted that there are established exceptions to the general rule that judicial proceedings shall be conducted in public. The need to maintain secrecy or confidentiality or the interests of privacy or delicacy might in some cases make it desirable for some part of the proceedings to be held in closed court.[5]

10. The origins of the open justice principle can be traced back to the early history of English courts.[6] It is a principle transmitted to the United States, Canada, New Zealand, Australia and many other countries.
11. The proposition that courts conduct their business in public has, by long historical practice, come to describe an aspect of their nature as courts. Exceptions to that proposition arise only where a public hearing could compromise the essential function of the court which was described in the High Court in 1983 thus:

‘The unique and essential function of the judicial power is the quelling of ... controversies by ascertainment of the facts, by application of the law and by exercise, when appropriate, of judicial discretion.’[7]

It should be a rare case when a court is closed because generally speaking open justice supports public confidence in the courts which in turn underpins their authority and thus the discharge of their essential functions.

12. The central debate about radio and television broadcasting of court proceedings is not about open justice. It is largely a debate about the extent to which the broadcasting of proceedings may affect the essential function of the court. That concern is reflected in the approaches taken to such broadcasting in different jurisdictions. Those approaches themselves change according to circumstances, including changing technology.

Changing perspectives in broadcasting and television of court proceedings

13. The evolutionary approach to television and radio broadcasting can be illustrated by reference to the experience in the United States.[8] In 1935 the trial of Richard Hauptmann, the alleged kidnapper and murderer of the child of the aviator Lindbergh, was conducted with an unprecedented level of media interest. The trial took place in a courtroom in New Jersey. The courtroom was built to accommodate 260 people. It had in it, in addition to 275 spectators, some 135 reporters. There were many photographers who, it was said, climbed on to the bar table to get better pictures of witnesses. A concealed newsreel film recorded the trial. The proceedings were described as a ‘circus’ and a ‘spectacular and depressing example of improper publicity and professional misconduct’. In a reaction of revulsion against this spectacle the American Bar Association adopted Judicial Canon 35. This proposed that filming and photography should not be permitted in court. Congress passed Rule 53 of the Federal Rules of Civil Procedure which banned photographs and radio broadcasting of criminal trials in federal courts. Laws to similar effect were applied in most States.
14. The Supreme Court of the US considered the question of telecasting and broadcasting proceedings in Estes v Texas[9]. The case arose out of the trial of a public figure, Billy Estes, for the sale of fictitious fertiliser tanks. $32 million was said to have been swindled. A pre-trial hearing was broadcast on television and radio. There were 12 cameramen in the court and a lot of associated equipment. Photographers went behind the judge’s bench to get better shots of defence counsel objecting. The trial itself was also televised but at least the cameras were hidden in a booth at the back of the court.
15. The Supreme Court, on appeal, quashed Estes’ conviction. It did not accept that the Sixth Amendment of the US Constitution providing for public trials gave the press a right to attend criminal trials. The right to a public trial belonged to the defendant. Its purpose was to ensure that he would be dealt with fairly. Nor did the First Amendment guarantee of freedom of the press confer an unlimited right of access to criminal trials. The majority held that while television reporters enjoyed the same right to attend a trial as newspaper reporters or any other members of the public, just as the news reporter was not permitted to bring his typewriter or printing press into court, the television reporter was not permitted to bring the instruments of his trade. The Court considered the psychological impact of cameras and equipment. It referred to their potential effects on jurors, witnesses, judges, counsel and the accused. It said the use of television cameras injected an irrelevant factor into court proceedings and an unfairness ‘so subtle as to defy detection by the accused or control by the judge’. The Court accepted that technological change was likely in the future which would result in a changed assessment about the effect of televising proceedings on the fairness of criminal trials. There was therefore no blanket, in principle or constitutional prohibition on televising or broadcasting laid down.
16. The prediction of changed responses to changed technologies was made good in Chandler v Florida in 1981.[10] Two police officers were charged with the robbery of a Miami Beach restaurant. A television camera was allowed in court, over defence objection, during the testimony of the chief prosecution witness and during closing argument for the State. This media coverage was much lower profile than that in the Estes’ trial. There was only one television camera and one technician allowed. No artificial lighting, video taping equipment or lens changing was permitted. The Supreme Court held that the Estes’ case did not impose a general prohibition on the use of cameras in the courtroom. The Court said it was a matter for the defendant to show that the coverage of the proceedings gave rise to a denial of due process. That burden was not discharged by the accused in the case before it and their convictions were upheld.
17. The American Bar Association subsequently revised its Rules and allowed for the use of courtroom television cameras subject to the discretion and supervision of the highest appellate court of the relevant State. As a result, some 43 States adopted programs allowing broadcasting of their trial or appellate courts by 1 July 1984.
18. Constitutional cases followed in the Supreme Court dealing with the impact of the First and Sixth Amendments on rights of access to criminal trials. The cases included Richmond Newspapers Inc v Virginia which established a presumptive right of access and Globe Newspaper Co v Superior Court[11] which invalidated a Massachusetts’ statute preventing public access to criminal trials involving minors who were victims of sexual crimes. In Press-Enterprise Co v Superior Court [12] the court held that in order to justify the closure of proceedings to the public a defendant must demonstrate the existence of a substantial probability that his right to a fair trial would be prejudiced by the publicity and that reasonable alternatives could not adequately protect fair trial rights.
19. As academic commentator J Sarner observed:

‘Read together with Estes and Chandler, this line of cases is generally regarded as establishing the constitutional bases for permitting courtroom television coverage over the objection of the defence. Although the First Amendment confers only an ‘implicit’ and ‘qualified’ right of access on the press, courts are presumptively open to the media. Accordingly, it appears the First Amendment has ‘edged out’ the Sixth Amendment. Absent a specifically articulated showing by the defendant of a substantial probability that the presence of a camera will prejudice his right to a fair trial, the Constitution will not bar the televising of State criminal trials.’

20. In Canada, courts permit broadcasting of their proceedings at the provincial level and at the level of the Supreme Court of Canada.
21. In the United Kingdom, s 41 of the Criminal Justice Act 1925 provides:

‘No person shall:

(a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court, any portrait or sketch, of any person, being a judge or witness in, or a party to, any proceedings before the court whether criminal or civil; or
(b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof.’

The House of Lords has allowed television cameras to broadcast some of its proceedings. In late 1998 the Law Lords allowed cameras to record their conclusions on the Pinochet hearings.[13]

22. The Criminal Justice Act 1925 does not apply to Scotland. The BBC applied for permission to film the trial of the Lockerbie bombers, which was held under Scottish law in the Netherlands. It was unsuccessful but eventually obtained permission to record and broadcast the appeal which was transmitted live and unedited on the Internet through the BBC’s website. In February 2002 the Lord Advocate of Scotland made a speech in which he said that the broadcasting of proceedings in Scotland should be used to overcome the deficiencies of existing media reporting.[14]

Advocacy for television broadcasting in Australia

23. Public advocacy of the telecasting and broadcasting of court proceedings has been conducted in Australia for some time. In his 1983 ABC Boyer Lectures on ‘The Judges’, Kirby J said, inter alia:

‘In Australia royal occasions, church services and now even parliaments themselves are televised. But cameras still normally remain outside the courtroom. People will grow impatient at this adherence to the old technology of information. They will see no logic in the insistence on sketches of little artistic merit of judges and witnesses. Under proper conditions, I have no doubt that television and radio will ultimately enter the courtrooms of Australia. Their coverage will be supplemented by media officers at least in the higher courts. As in the United States their duty will be to digest briefly and accurately the rulings of the third branch of government. In the next century, I by no means exclude the possibility that judges will be expected to explain at least some of their judgments on radio and television and to answer questions about them.’

24. In 1994 the Access to Justice Advisory Committee chaired by Ronald Sackville QC, now Justice Sackville of the Federal Court, reported to the Minister for Justice of the Commonwealth, that the broadcasting of court proceedings should be permitted but ‘on a strictly controlled basis’. The Committee recommended that the Federal Court should consider the establishment of an experimental program to allow the broadcasting of proceedings.
25. The Committee recommended guidelines for consideration adapted from a report by the New South Wales Law Reform Commission on broadcasting issues. It proposed that media should apply for approval of media coverage to a Federal Court judge presiding over the proceeding to be covered. The application should be made within some prescribed period before the proceeding unless good cause was shown for a later application. The presiding judge should have a discretion to allow broadcasting and should be able to limit, temporarily suspend or disallow broadcasting if, in the judge’s opinion, it had interfered with, or would interfere with, the rights of the parties to a fair trial and the proper administration of justice. Media coverage should be prohibited where, under Commonwealth or State laws, the court proceeding was required to be held in private.
26. The Committee also recommended that broadcasting of a particular witness’s evidence should take place only if the witness consented. A party to a proceeding before the Federal Court could object to media coverage by providing a written objection within a prescribed period before a proceeding to the judge presiding over the matter. The objections should be heard and determined by the judge prior to the commencement of the proceedings.
27. The control of the filming process should be at the absolute discretion of the court. The quantity and types of equipment and number of persons permitted in the courtroom was a matter for determination by the court. It was also proposed that there should be no close-up photography of judges, parties, witnesses or other court participants. The media should be required to pool equipment and personnel. The equipment should not produce distracting sound or light. Moving lights, flash attachments and sudden lighting changes should not be permitted during a proceeding. The judge should also be able to prohibit live broadcasting of proceedings to ensure that sensitive, inadmissible material or the kind that would presently be prohibited under a court order from publication was not inadvertently broadcast. The Committee rejected the proposal that broadcasting should be permitted only with the consent of all parties.[15] These recommendations are still a useful basis for practical application to radio and television broadcasting in any Australian court.
28. A comprehensive and very considered approach to current practice and the principles informing the use of television and radio broadcasting of court proceedings and their accessibility on the Internet has been provided by Dr Daniel Stepniak. His advocacy is based upon the proposition that although open justice is often equated with courts being open to the public the principle entails much more than simply letting the public observe judicial proceedings. Dr Stepniak argues that publicity rather than open court doors defines open justice. It is well established that open justice places an obligation on courts to publish reasons for decision and not simply provide reasons to the parties in the case. He disagrees with the proposition put by Chief Justice Murray Gleeson in 2001, that Australian courts are open to both public and media ‘who can come in and listen to what the judge is saying and the reasons the judge is giving for his or her decisions’. Stepniak argues:

‘Those who thus confine open justice clearly choose to ignore why courts are required to be administered openly, the principle’s emphasis on publicity, and the significance of societal changes.’

29. In a report which he prepared for the Federal Court of Australia, Dr Stepniak emphasised that a hearing in a court which is merely open to the public does not itself effectively ensure a public hearing, let alone publicity. The two reasons he identified for this were:
    1. The reality that very few people enter a courtroom to personally observe the administration of justice in action. Court hours preclude most from attending and those who are able to attend may be deterred from returning because they may feel like intruders.
    2. The fact that television, which is a major source of information and publicity in contemporary society, has effectively been barred from the courts.
       

The present position in Australia

30. There is no statutory prohibition in Australia, nor any global mandate, for electronic media access to the courts. There are particular restrictions which affect the identification of protected or vulnerable parties or witnesses such as child offenders and complainants in cases involving sexual offences.
31. Australian courts have, for a number of years, allowed ceremonial proceedings to be televised. Special sittings to welcome new judges or farewell retiring judges are often televised for the purposes of a news grab for the evening news. My official welcome to the Federal Court took place at a special sitting in November 1986 which was probably the first occasion on which television cameras had been allowed in the Federal Court for that purpose.
32. The essentially pragmatic character of decision-making about these matters was reflected by a discussion which took place in my chambers on the morning of that welcome. The then Chief Justice of the Federal Court, the late Sir Nigel Bowen, was told by a court official that a television channel had asked to be able to film the welcome. His first inclination was to refuse. But the Chief Justice of Western Australia, the late Sir Francis Burt, who was present at the time, said words to the effect of ‘Oh why don’t you let them have a go’. Sir Nigel relented without any further substantive discussion and so it happened.
33. It has become routine for such proceedings to be filmed and used for news programs. An additional use of such film has been to provide file footage so that when in later months or years a case involving one of the judges who was sitting at the welcome arises, footage can be shown of that judge in his or her robes. This is not without risk. The judge filmed on a ceremonial occasion might be smiling at some witty banter from Bar to bench only to find his or her smile later reproduced as a tasteless smirk in the context of an horrific crime on which that judge is subsequently sitting.
34. It is now the case in Western Australia that at least some State judges allow themselves to be filmed individually coming robed into an empty courtroom and sitting down so that the footage can be used generally in reporting cases relating to that judge. Generally speaking the judges so filmed maintain a suitably grim, all-purpose demeanour, on such occasions. Subject to the file footage question, permitting the use of television cameras in ceremonial proceedings represented a low risk first step in the incremental approach to telecasting judicial proceedings generally.
35. A second step, used with increasing frequency in Australia, allows the filming of the beginning of proceedings of significant interest so that file footage is available of the judge or judges coming into court and taking their places at the beginning of the hearing, together with film of counsel at the bar table. This provides a backdrop to a verbal news report about the case.
36. An interesting example of different kinds of television broadcasting of proceedings occurred in the high profile Tampa case in 2001. The case involved the interdiction by the Australian Government of the Norwegian container ship Tampa, which was bringing to Australia asylum seekers from the Middle East who had been rescued, at the government’s request, from a people smuggler’s vessel foundering in the ocean between Indonesia and Australia.
37. Human rights lawyers in Australia brought habeas corpus and judicial review proceedings on behalf of the asylum seekers. Television cameras were allowed to film the entirety of the proceedings at first instance. Those proceedings before North J were based largely on agreed facts and no question of the effect of television cameras on witnesses or parties arose. However when the decision was appealed to the Full Court, the Court did not follow the same course but allowed cameras in at the beginning of the proceedings to show the arrival of the judges and counsel at the bar table.
38. A third circumstance in which the use of television cameras is permitted in court arises when judgment is to be delivered. In the civil jurisdiction of the Federal Court and the State courts this can be facilitated by the preparation of a judgment summary. While not forming part of the reasons for judgment, a judgment summary will seek to encapsulate in journalistically reproducible language, the essential issues before the Court and the conclusions reached by the Court. When the Full Court of the Federal Court delivered judgment on appeal from North J in the Tampa case, a summary was prepared and was read by the Chief Justice who also made the orders and published the reasons for judgment of all members of the Court.
39. It must be acknowledged that even the most intelligible and concise judgment summary is probably not going to be brief enough to be accommodated entirely within a one-minute news story. However, crafted with care, it should incorporate one or two key paragraphs or phrases which catch, so far as possible, the essence of the decision being made. I would add, by way of aside, that the use of judgment summaries can give rise to subtle dissonances or differences of emphasis between the judgment summary and the reasons for judgment. There was some criticism of the judgment summary prepared and read in the prominent Stolen Generations case in the Federal Court a few years ago.[16] My preference, after a number of years of experience of judgment summaries, is to write an introduction to the judgment which forms part of the reasons, is to be read with them and encapsulates the issues in the case and the important conclusions arising out of it. This is a part of the draft judgment which I write when I have finished the rest and which can be read relatively painlessly by a journalist and, if necessary, can be read in whole or in part by the judge in a televised delivery of the judgment.
40. There is one area in which the televising of Federal Court proceedings has been particularly beneficial and powerful. That has been in relation to the conduct of native title determination hearings in which evidence is taken and judgment frequently given in remote parts of Australia. In many case determinations have been made by consent, usually after a long, complex and arduous process of negotiation and mediation, that native title exists. For the most part such consent determinations have been made, as have determinations after contested proceedings, on the country of the Aboriginal people who have applied for recognition of their native title. I have participated in the making of two such consent determinations. Other judges of the Court have made consent determinations in other parts of remote Australia. The Court convenes formally, usually under a tent or tarpaulin, to make the determination. Generally the judge and counsel are robed, often at the request of the indigenous people who do not want to see anything less than the full ceremonial dignity of the Court. Television broadcasts of these events demonstrate the importance and genuineness of the demands by indigenous people for recognition of their cultural and spiritual relationship to their country. They also demonstrate in a symbolic way the universality of the rule of law and the flexibility of which a modern court system can be capable in its application.
41. Beyond the practices to which I have referred there have been other isolated or one off experiments with television broadcasting in Australian courts and tribunals, the detail of which has been comprehensively discussed by Dr Stepniak in his various writings. Dr Stepniak produced a substantial report for the Federal Court in December 1998 entitled ‘Electronic Media Coverage of Courts’. That report contained a very valuable overview of practices in a number of jurisdictions and a very helpful discussion of the issues attending the introduction of such coverage into the judicial process.[17] He proposed in that report an experimental program of electronic coverage in the Federal Court with an accompanying evaluation process. That project would have avoided the acute concerns which arise in the context of the broadcasting of criminal trials. The project did not proceed. I think it is fair to say that the development of electronic media coverage in the Federal Court of Australia for the foreseeable future will be incremental and, to some extent, responding to pressures for access by the electronic media on a case-by-case basis.

There is of course a particular sensitivity associated with the televising of criminal proceedings. This generally relates to the impact of televising such proceedings on the witnesses, the complainant, the defendant and, in the higher courts, the jurors. But it seems to run wider. A few years ago when a Victorian Supreme Court judge permitted the filming of his sentencing remarks in relation to a serious sex offence against a child, his decision to do so engendered considerable controversy.[18] It is sometimes difficult to articulate with precision the basis of all the concerns which underlie the filming of criminal proceedings. It is a class of case, however, which has to be approached with particular care.[19]

Conclusion

42. We all recognise the vital importance of open and public justice. In so doing it is necessary to keep in mind the primary function of the Courts is to do justice according to law on the facts as found by the judge or magistrate or by a jury, as the case may be. It is the impact of electronic media coverage on the discharge of that essential function that lies at the centre of concerns about general access by the electronic media to the Australian Courts. Some of these are tangible, some not so tangible. They include:
    
    1. Physical distraction to those involved in the proceedings – a concern much mitigated by much less obtrusive technology than in previous years.
    2. The subtle and not so subtle effects of electronic media coverage upon participants in the court process particularly parties and witnesses whose willingness and ability to give their evidence and to make appropriate decisions is of vital importance to the integrity of the court process. While the open nature of the court proceedings means that there will always be questions of exposure and embarrassment in public, there is a power and immediacy surrounding electronic media coverage which, in the minds of some, may raise the risk of undue distraction and apprehension to an unacceptable level.
    3. A cultural abhorrence of tabloid television journalism whose distorting effects may be the more powerful because of their access to visual and sound imagery. This is exacerbated by observation of high profile and probably quite atypical cases such as the OJ Simpson case in the US and their extensive discussion on such outlets as Fox Television. There is a legitimate concern incidental to what may be a purely cultural abhorrence and that is the desire to ensure that the dignity and authority of the courts of law and public confidence in them should not be lowered.
       

It is doubtful whether there is any quantitative or qualitative research which, in a single project or consultation, can provide a definitive resolution of these issues and associated concerns. For my part, I think decisions about electronic media coverage are matters of risk management and confidence building. In that process the cautionary perceptions of judges and lawyers about the impact of coverage on their cases should not be dismissed as mere elitism, prejudice or timidity. And even if there are elements of those things, the simple fact is that for electronic media coverage to be effective and most effectively used in the public interest will require the cooperation of all participants. That is best obtained by a process of mutual trust and confidence building, rather than by imposition. It is a process which I think will accelerate. The principal limitation will be the limited and episodic nature of the demand by media outlets for access. This in turn throws up the need to consider the desirability of a more proactive approach by the courts to providing electronic access, eg through the Internet, to records of proceedings as well as judgments and the treatment of television and radio broadcasting as elements of larger access strategies. That is the approach favoured by Dr Stepniak, which has much to recommend it.

43. In the particular context of Magistrates Courts the general issues of principle to which I have referred, apply. There may be greater practical difficulties because of the smaller physical size of many such courts and thus the comparatively more obtrusive character of television and radio broadcasting equipment in them. I do not think that either in Magistrates Court or in other courts there is about to be a revolution in access by electronic media. I think, however, there will be an evolution and that in ten years time the scene will be entirely different from that which applies today.
    

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[1] [1913] AC 417
[2] Supra at 477
[3] [1913] ArgusLawRp 109; (1913) 17 CLR 50
[4] (1976) 134 CLR 495
[5] See also Stephen J at 532-533

[6] See Dr D Stepniak, The Complementary/Adversarial Roles of Courts and the Media in Audio-Visual Court Reporting: An Australian Perspective, 52nd Annual Conference of the International Communication Association at 4-8, citing Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 and Richmond Newspapers Inc v Virginia [1980] USSC 154; 448 US 555 (1980) at 565-7. Dr Stepniak is the pre-eminent Australian academic expert on this topic and has written a number of papers on it as well as doing a major report for the Federal Court. See eg Stepniak, Technology and Public Access to Audio-Visual Coverage and Recordings of Court Proceedings: Implications for Common Law Jurisdictions (2004) 12 William and Mary Bill of Rights Journal 791-823 and Stepniak, Court TV – Coming to an Internet Browser Near You, Paper presented at 23rd AIJA Annual Conference on Technology, Communication and Innovation, 7-9 October 2005.
[7] Fencott v Muller (1983) 152 CLR 570 at 608.
[8] The outline that follows is taken from J Sarner, Justice Take Two: The Continuing Debate over Cameras in the Courtroom (2000) 10 Seton Hall Constitutional Law Journal 1053.
[9] [1965] USSC 138; 381 US 532 (1965)
[10] [1981] USSC 18; 449 US 560 (1981)
[11] [1982] USSC 136; 457 US 596 (1982)
[12] [1986] USSC 164; 478 US 1 (1986)
[13] Stepniak op cit at 25
[14] Stepniak op cit at 26
[15] Access to Justice Advisory Committee, Access to Justice: An Action Plan (May 1994) – as summarised in Privacy Law and Policy Reporter [1994] PLPR 105.
[16] Cubillo v The Commonwealth [2000] FCA 1084; (2000) 174 ALR 97 discussed in D Bennett The Gubillo and Gunner Cases Quadrant November 2000 at 35-41.
[17] See also for a more recent discussion by Dr Stepniak, Technology and Public Access to Audio-Visual Coverage and Recordings of Court Proceedings: Implications for Common Law Jurisdictions (2004) 12 William and Mary Bill of Rights Journal at 791-823
[18] R v Avent (Teague J, Supreme Court of Victoria, May 1995)
[19] Many of the issues are well covered in the 1998 Report and other publications by Dr Stepniak. See also the useful discussion of the issue in the United States in J Sarner, Justice Take Two: The Continuing Debate over Cameras in the Courtroom. For a discussion of the issues in the Australian context see C Lane, On Camera Proceedings: A Critical Evaluation of the Inter-Relationship between the Principle of Open Justice and the Televisation of Court Proceedings in Australia [1999] MonashULawRw 3; (1999) 25 Monash UL Rev 54.