Late last year and early this year the Dirty Old Digger’s local sheet The Australian went to town on the lazy, hazy Supreme Court judges of NSW. They had the longest summer holidays and therefore they were the slowest at dispensing (criminal) justice. The paper declared them to be a “pampered lot”.
Miss Ginger Snatch wrote at the time this interpretation of the figures was fudged and the commentary skew-whiff. It was a rather crude “campaign” by the beat-up merchants at The Oz using Productivity Commission data that was a year old to make erroneous comparisons as to the performance and judicial leave entitlements of different Supreme Courts.
J.J.Spigelman CJ from NSW was livid as the paper characterised his court as the most “inefficient”. NSW attorney general Uncle Bob Debus swung into action on behalf of the judges and using research compiled by the court took a complaint to the Australian Press Council about this series of articles . See Theodora’s report on the AG’s complaint.
Now the findings are in and it’s bad news for the hacks. Some of the complaints were withdrawn but the Press Council upholds the AG’s complaint on three issues:
- The newspaper did not take sufficient steps to check the accuracy of claims quoted by a criminal lawyer.
- There was a lack of fairness and balance in its treatment of material arising from a Productivity Commission report.
- An article misled readers on the basis on which comparative costs between NSW and Queensland courts were assessed.
The council dismissed some of the complaints where it found no breach of principles or where the newspaper “provided the opportunity for balancing comment”.
The summary adjudication adds this weird little bit:
“The council commends the newspaper for critically evaluating the court system. This can only enhance the transparency of the court’s operations.”
Surely not, if the “evaluation” is cockeyed.
However, in the full adjudication it says that newspapers:
“need to maintain confidence in the courts and the rule of law in their presentation of court-related matters. The exercise of the newspaper’s right to scrutinise does not give it carte blanche to report on the activities of a court in any manner it likes. Like any other entity in society, the courts are entitled to be reported in a fair and balanced manner, and in a manner that accords with the statement of principles of the Press Council.”
The Australian is obliged to publish the findings and should have done so by now. Anyway, since it has not done so at the time of this posting, we’ll bring you the full adjudication.
Australian Press Council – full adjudication
The Press Council has considered a complaint brought by the Attorney General of New South Wales, the Hon. Bob Debus, against The Australian regarding a series of articles published by the newspaper in late 2004 and early 2005.
Judges and the courts are clearly uncomfortable with recent press scrutiny. Nonetheless, the Council endorses the freedom of the press to report, and comment on, matters of public interest, including the performance of major public institutions. There may even be an obligation to do so in the public interest. Such reporting and comment may lead to campaigning, even robust campaigning, on the issues arising. In this case, the newspaper has devoted several articles to highlighting what it saw as major issues of concern with the courts and the judiciary. It is to be commended for subjecting the judicial institution to vigorous scrutiny.
But the freedom to report requires that reporting be responsible. Given the complexity and sensitivity involved in this particular matter, there was an over-riding responsibility to ensure that all reasonable steps were taken to make the reports fair, accurate and balanced, as required by the Press Council principles. Part of the Attorney General’s original complaint was of a “general” nature and comprised a claim that The Australian “had conducted a campaign of denigration of the judiciary” involving an “emerging pattern of bias, misrepresentation and suppression of relevant facts”. Following the receipt of the newspaper’s comments on his complaint, the Attorney withdrew this aspect of the complaint.
Given that the general complaint was withdrawn, the remaining aspect of the complaint focuses on a number of specific concerns with aspects of the reporting in eight separate articles and claims that certain reported matters fail to comply with the Press Council’s principles. For ease of reference, theses articles are listed as follows:
Article 1 (2.12.04) – No justice in judges’ seven-week break
Article 2 (2.12.04) – Courts long break “unfair” to prisoners
Article 3 (3.12.04) – Chief Justice vows to act on judges’ holidays
Article 4 (6.12.04) – Court defensive over backlog
Article 5 (7.12.04) – On or off, judges dont lose on holiday time
Article 6 (7.12.04) – Legal nitpicking wont answer judges critics
Article 7 (8.12.04) – Tassie tops supreme court backlog
Article 8 (12.1.05) – Long-winded and expensive justice
Article 1 deals largely with a comparison between States in terms of relating a backlog of criminal cases to leave provisions. It adds: “critics say it is no coincidence that the NSW Supreme Court, which has the most generous leave provisions of any jurisdiction in Australia, also has the largest backlog of unheard criminal cases”. The article goes on to say that South Australia which takes the least amount of leave, “has the lowest criminal case stockpile”.
The complainant disputes the assertion that NSW stands alone with the most “generous leave provisions”. He states that a detailed table comparing leave provisions in each jurisdiction which was provided by the NSW Supreme Court to the reporter indicates that “almost all other jurisdictions have the same total leave entitlements as that of New South Wales”. The complainant also claims that no basis was provided for drawing a comparison between States in terms of relating a backlog of criminal cases to leave provisions.
Whether there is a connection between backlog of criminal cases and generous leave provisions of judicial officers is a matter of public interest and apt for public debate. However, making a bald assertion about the connection without a proper evaluation of the evidence does not contribute to public debate. If this debate is to be taken further along, it is expected that those concerned should be provided a reasonable opportunity to comment.
In this respect, the Council notes that Article 4 does contain comments from the NSW Attorney General and the NSW Chief Justice that go to balancing some of the criticism in the early articles.
Article 1 also reported the claims by Andrew OBrien, a Sydney criminal lawyer, that, because of the six-week summer recess in NSW, two of his clients (a couple with a young child) would have to spend Christmas in prison. The article includes the following paragraph:
“Mr O’Brien believes a court might allow the mother, who is a first offender, to be given a non-custodial penalty instead to allow her to care for her child. But he cannot get a hearing date for a sentence appeal in the Supreme Court until mid-February.”
When an allegation of this nature is made, a professional journalist would indubitably seek a comment from the court concerned. It is clear that there was a failure to seek verification of the claims by Mr O’Brien. In fact, the claims by Mr OBrien cannot be reconciled with the transcripts of the proceedings submitted by the complainant. To the extent that it failed to take a simple reasonable step to check the accuracy of the claim by Mr O’Brien, the complaint on this score is upheld. This finding of the Press Council applies equally to the repetition of the O’Brien matter in Article 2 and in Article 4.
Another matter that arose from Article 4, among others, relates to the manner in which the newspaper has utilised a finding of the Productivity Commission in its 2004 Report on Government Services. The complaint refers to Article 3 that states, among other things, “In NSW, which the Productivity Commission declared to be judicially the most inefficient state …” Article 4 repeats the claim that NSW is “the most inefficient in the country” and adds: “With a backlog of criminal cases far greater than that in any other state”. This claim is repeated in Article 5.
In making the “most inefficient state” claim, the articles concerned fail to inform the readers of the caveat expressly set out in the Productivity Commissions 2004 Report: “Care needs to be taken when comparing timeliness data across jurisdictions because both the complexity and distribution of cases may vary”. Even if the newspaper could be excused the first time when it published this claim, there is plainly no excuse for its repetition of the claim when its attention was drawn to the need for care in utilising the Report. The defence of the newspaper “that any subsequent reporting of this issue will take into account the qualifications that have been thrown up by the debate on the Productivity Commission figures” simply highlights the lack of care in utilising the Report. The Press Council believes the lack of fairness and balance requires the complaint on this aspect to be upheld.
The Press Council notes that the complaint pertaining to Article 6 has been withdrawn.
Article 7 focuses on the performance of the Supreme Court of Tasmania in relation to its civil caseload. The complainant points out that the headline Tassie Tops Supreme Court Backlog “could be applied to any court which happens to be the lowest on one of the numerous tables published annually by the Productivity Commission”. The newspaper counters by saying that as the article is concerned with the Tasmania jurisdiction “it remains difficult to see how it can be a matter for complaint by the NSW Attorney General”. The complainant claims that the article is a mirror image of the material in relation to the criminal caseload of New South Wales, and that such “distorted” reporting does have implications for future reporting on NSW courts. The issue of backlog of cases is a matter of legitimate public interest. The Press Council reiterates that the newspaper should have adverted to the caveat of the Productivity Commission regarding the use of the data. The Council also notes that the heading of the article does not make it clear that the backlog was a reference to civil cases.
In relation to Article 8, the complaint focuses on the paragraph which asserts: “A CRIMINAL case in the NSW Supreme Court costs more than $25,000, but the same matter costs just over $5,000 in Queensland.” The complainant argues that this assertion is “plainly misleading” and that the error could have been avoided had the court been given the opportunity to comment. The complainant points out that more than 85 per cent of the criminal workload in the NSW Supreme Court consists of long and complex murder and manslaughter trials, compared with only 10-50 per cent in the nations other supreme courts. He also states that the Queensland Supreme Court tries a high proportion of relatively minor drugs charges, which are dealt with by lower courts in NSW. The complaint on this issue is upheld.
The Press Council emphasises that it is the right of any newspaper to subject any institution to vigorous scrutiny. It must also be pointed out that the complainant does not challenge this right. Given that the courts are central to the administration of justice, subjecting them to the glare of publicity will ensure transparency and accountability in relation to their operation. Equally, the Press Council draws the attention of newspapers to the need to maintain confidence in the courts and the rule of law in their presentation of court-related matters. The exercise of the newspaper’s right to scrutinise does not give it carte blanche to report on the activities of a court in any manner it likes. Like any other entity in society, the courts are entitled to be reported in a fair and balanced manner, and in a manner that accords with the Statement of Principles of the Press Council.