There’s a cyclone tracking south through Queensland while an intense low is battering south east Australia. At the same time, there’s a leadership spill going on in Westminster and the US is reacting to the jailing of President Trump’s lawyer Michael Cohen.
These stories are filling a very busy line-up on morning television.
But on the newsstands in Sydney, the front page of The Telegraph has thrown all that aside with a bold headline claiming the media is missing an even bigger story.
The paper is right. Just go online and type in the magic combination of words, and there it is, a story that is trending and tweeting and being shared across the globe. It involves a very prominent Australian who has been convicted of a serious crime. It’s a story—or non-story—with considerable implications here and abroad.
Although it’s now the nation’s worst kept secret, most of the mainstream media is carrying on like there’s nothing at all awry. As familiar and trusted TV anchors pretend the stories they’re presenting are the best or only ones to report, viewers could be forgiven for questioning whether the media is party to a perverse form of fake news.
This is the result of a national suppression order that stops the media reporting what’s going on. All we can say is that the person concerned has been convicted but faces more charges and that in an earlier trial a jury failed to reach a verdict.
Although this particular suppression order, issued by the Victorian County Court, is much more severe than usual, it is based on a cornerstone of Australian jurisprudence—the idea that a person is entitled to a fair trial and the media needs to behave to ensure this occurs.
Suppression orders fit within a body of law known as ‘contempt of court’. The rules once worked well and certainly made court proceedings more solemn and allowed jurors and witnesses to consider matters free from screeching commentary from shock jocks. They ensured that jurors were unaware about prior convictions and that witnesses’ memories were untainted by the publication of pictures of the suspect.
The rules also meant juries could be empanelled with a reasonable expectation that their views were not affected by media commentary.
Sometimes the media went rogue and flouted the ‘subjudice’ rules by publishing a suspect’s prior convictions while a case was before the courts. Occasionally the courts responded by aborting trials or imprisoning journalists. Derryn Hinch is the pinup boy for resistance to Australia’s contempt laws after going to prison in 1987 for exposing the prior convictions of paedophile priest Michael Glennon while his case was before the courts. He was also convicted of breaching suppression orders in 2011 and again in 2014.
But this paternalism doesn’t work anymore. Courts have limited geographic jurisdiction, but the media’s reach is global. While the Australian mainstream media is still complying in this case, the international media is not bound to do likewise. Reputable news sites are now reporting it across the globe.
The rules are also out of step with modern media consumption. Would we want jurors who are not connected and engaged with social media? Have we got so little faith in jurors that we can’t trust them to make up their own mind about a case, despite what the media is saying about it? Can’t we trust our courts to guide people towards untainted decisions?
The Age responded this morning with a considered piece, ‘Why the media is unable to report on a case that has generated huge interest online’, and reminded readers that Victoria is the most suppression-happy jurisdiction in Australia. The piece suggested this blunt instrument is being abused by Victoria’s courts. This hints at what many of us in the media suspect—that the courts have an especially dim view of journalism and its role in holding all aspects of society, including the courts, to account.
The Telegraph’s front page editorial declared it was going to fight the suppression order in the courts. But The Telegraph represents the sort of journalism the courts hate. Its characterisation of issues as black or white and its frequent strident attacks on the bench for lenient sentencing often reflect a lack of appreciation of the very difficult job the courts perform.
I’m a little torn on this. The rules are now clearly a farce. They are overly paternalistic and the public does have a right to know. But people also have a right to a fair trial and the media can and does trample on the process. I would hate to think that media reporting on this case meant the next trial could not proceed because it’s impossible to find an untainted jury.
I accept that the courts should be allowed to do their job. For example, I generally accept that jurors should not be identified and certainly never harassed by the media, but it’s also true that on occasion it’s juries that undermine the legal process because they act in aberrant ways. On such occasions, the media should be free to talk about this and interview whistle blower jurors about what went on inside the jury room.
Hopefully this case will re-energise the push for reform. As The Age reported this morning, retired judge Frank Vincent conducted a year-long review of Victoria’s contempt laws in 2013 and made 18 recommendations to reflect that the media landscape has changed. None of those recommendations have been adopted.
Andrew Dodd is the Director of the Centre for Advancing Journalism at the University of Melbourne.
