Solomon, David --- "Courting the Media: the Creation of the High Court Press Gallery" [2004] ALRCRefJl 18; (2004) 85 Australian Law Reform Commission Reform Journal 7

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Reform Issue 85 Summer 2004/05

This article appeared on pages 7–8 of the original journal.

Courting the media: The creation of the High Court press gallery

By David Solomon*

It is not exactly in their job descriptions, but most Chief Justices take it upon themselves to promote the interests of their courts in the public arena.

Persuading the public, through the media, of the many merits of their court, and the virtues of its decisions and judgments, no doubt helps in furthering their relations with politicians and the political leaders who decide such important issues as the funding and facilities the courts receive. If a court is well regarded by the public, it will find it easier to defend its independence (and that of its various judges) against ill-informed criticism by politicians or other commentators in the media.

The public is a necessary, indeed essential, balancing ingredient in the judicial-political mix, particularly in the higher courts, because so often the government is a litigant in those courts, defending decisions and actions by ministers or the validity of legislation passed by parliament at its behest.

But getting a positive story from or about the courts into the media has become increasingly difficult. The media is now, as it always has been, interested in reporting in as much detail as is possible (and is allowed) committal proceedings and trials of salacious or infamous crimes. This interest extends even to civil proceedings where there are high profile (personal or corporate) litigants. But the staple fare of the tabloid press of more than a generation ago—the divorce courts—was legislatively banned when the Commonwealth enacted its uniform laws.

Reporting the higher courts—appeal cases and proceedings generally in the High Court—was never popular fare. Those courts are less concerned about facts than legal concepts. It is rarely simple to convey to the public the issues and arguments involved in such cases. Some senior barristers occasionally trim their words and submissions to make them good copy for reporters. For the most part journalists tend to disregard what is said in argument, and even the sometimes humorous or vitriolic interventions from the bench. Court decisions may get a mention in the press, and even be analysed, but generally only in the most important constitutional, commercial or criminal cases.

Sir Garfield Barwick wanted to change all that when he became Chief Justice of the High Court. In the early 1970s he persuaded successive Coalition and Labor Governments to move the High Court to Canberra from Sydney into a new, purpose-designed monumental building in the Parliamentary Triangle on the shores of Lake Burley Griffin. Although the move involved some discomfort and inconvenience for the High Court Justices (for whom a special financial deal, involving new allowances, had to be fixed), Sir Garfield was convinced the move was essential to enhance the High Court’s status as a central institution of the Australian governmental system.

He also considered the High Court would make more of an impact on public consciousness if it was based in Canberra, particularly if its work was covered by a dedicated band of journalists—that is, by a group of journalists specialising in covering the Court. He had in mind the way the Federal Parliament was and is covered, by journalists located physically within the building and concerned almost entirely with reporting and commenting on what happens within the building and the activities of its star occupants, the politicians, wherever they might be.

To encourage the press (in particular) to cover the Court’s activities, Sir Garfield ensured that space was set aside for journalists, first in a public area behind the canteen on the first floor. Unfortunately, the area could not be closed off and after a telephone disappeared on the very first weekend the space was occupied, the journalists were moved to a more secure location on the fourth floor of the building, in an area not open to the public.

Shortly after the High Court building was opened, in 1980, it seemed Sir Garfield’s vision of a specialist press gallery for the Court would become a reality. The Sydney Morning Herald assigned a journalist full-time to cover the Court, while the Australian Associated Press (which provides a service for most media outlets in Australia) followed suit. This was difficult to justify in terms of the material the reporters could produce, even when they travelled interstate to cover the Court. The High Court only sat (and still only sits) for at most two weeks in every four in Canberra, and for only three or four days in those weeks. It also sits each year for a week in Brisbane, Adelaide and Perth, and occasionally in Hobart. Most of its special leave hearings are conducted in Sydney and Melbourne though now a Court sitting in Canberra often conducts special leave hearings using teleconferencing to Perth, Brisbane and Adelaide.

It was not surprising in these circumstances that newspapers such as The Australian Financial Review, The Australian and The Canberra Times had journalists employed part- or half-time covering the Court. The ABC and other radio and television outlets simply covered the Court with people from the parliamentary press gallery, when they thought there might be an interesting (or newsworthy) case.

The creation of the High Court press gallery had the desired effect. Through the 1980s the Court was better and more frequently reported than it had been when it was based in Sydney, and the journalists who specialised in the Court’s work did build up some expertise. However, by 1992 the four offices that had been occupied on a full- or part-time basis by AAP, The Sydney Morning Herald, The Australian and The Canberra Times were all vacant, and they were never reoccupied. The Court’s work was covered only by journalists from the parliamentary press gallery, on an occasional basis, except in the case of The Canberra Times whose expert, specialist court reporter also covers the High Court. And as the journalists left their High Court premises, the coverage of the Court by the media fell away.

To some extent the High Court has overcome the problem by appointing a public information officer. She contacts all the media, informing them of the Court’s daily activities, circulating in advance details of the special leave applications that are to be considered by the Court, and providing a one-page summary of each of the judgments of the Court (which are then accessible in full to everyone on the Internet).

This means no stories should be missed by the media. But although each office in the parliamentary press gallery tends to assign a particular journalist to cover the High Court, it is probably fair to say that these people do not have the opportunity to learn much about the workings of the High Court. The media certainly do not provide as much coverage of its activities as they did in the 1980s. In many respects it is reported as though it was just another court, though when its decisions impact on Australia’s political life (as many do—and not just those cases concerning the interpretation of the Constitution) reporting and commentary in the media (and particularly in newspapers and magazines) is likely to focus on the political implications of the relevant decision, not the law that it makes or changes.

* Dr David Solomon is contributing editor of The Courier Mail, Brisbane. He is a barrister and author and has a Doctorate of Letters from the Australian National University. He spent most of his career as a journalist in Canberra, including terms as a political correspondent and High Court correspondent.