[Recommendation
1] On the basis of the Federal Court's own favourable
experiences with electronic media coverage and of generally
encouraging recent developments in other jurisdictions,
it is the recommendation of this report that the Court
should undertake an evaluation project - continuing to
permit electronic media access to proceedings for a specified
period subject to guidelines imposed by the Court and
subjecting such access to systematic analysis.
[Recommendation
2] The evaluation project should be undertaken
for the following reasons: to determine the desirability
or otherwise of audio-visual media coverage; to establish
an acceptable level of informed consensus based on first-hand
experience; to bridge the gap between the findings of
overseas studies and prevailing Australian perceptions;
and to replace the current ad-hoc coverage which is potentially
problematic and not conducive to the meaningful assessment
of risks and benefits of permitted coverage.
[Recommendation
3] It is recommended that the Court undertakes
an evaluation project which only requires minor changes
to be made in order to convert currently permitted electronic
media access into a structured and systematically monitored
and evaluated project which is flexible enough to encompass
a range of experimental approaches.
[Recommendation
4] It is proposed that the Court should emphasise
the incremental and minimal nature of changes to existing
procedures.
[Recommendation
5] While outside the terms of reference, it is
recommended that the evaluation project should encompass
all audio and visual forms of media reporting of court
proceedings. Concerns pertaining to any of these forms
of media coverage should be specifically addressed in
guidelines governing the operation of the project.
[Recommendation
6] In order to minimise expense and avoid time
consuming procedures, the Court should continue to adopt
an administrative rather than a formal legal process for
implementing the evaluation project.
[Recommendation
7] It is recommended that prior to the commencement
of any evaluation project the Chief Justice considers
appointing a Steering Committee, consisting of Federal
Court judges, and representatives of the legal profession
and the meeia, to approve the guidelines and to control
and oversee the monitoring and evaluation of the evaluation
project.
[Recommendation
8] It is recommended that an independent consultant
be asked to carry out the project's formal research evaluation.
The nature, methodology and protocol of the research evaluation
to be undertaken by the consultant should be approved
by the Committee.
[Recommendation
9] It is recommended that an evaluation undertaken
as formal supervised academic research would not only
serve to minimise the costs of undertaking such an evaluation,
but would also provide a clear means of ensuring that
ethical concerns are appropriately addressed and that
the empirical research undertaken employs the latest techniques
and withstands scientific scrutiny.
[Recommendation
10] To ensure close cooperation between all parties
participating in the evaluation project, the steering
committee set up to oversee the project should conduct
workshops prior to the commencement and at intervals during
the experiment. These workshops should be designed to
clarify the guidelines and to deal with concerns held
by judges, court administrative staff, lawyers, or media
organisations.
[Recommendation
11] It is recommended that the Court should actively
assist the accuracy of reports and the realisation of
the electronic media's potential to inform and educate
by providing the media with information about cases to
be covered and on the judicial process in general.
FORMULATION, NATURE AND APPLICATION
OF GUIDELINES
[Recommendation
12] Due to the pervasive and potentially intrusive
nature of electronic media coverage, it is recommended
that the steering committee develops specific guidelines
for the electronic media. Such guidelines will serve to
remind media participating in the project of restrictions
which already apply to all reporting of judicial proceedings.
[Recommendation
13] Any guidelines should be strict enough to effectively
deal with potential risks, yet not so oppressive as to
cause the media to only be willing to make the effort
to comply for high profile cases or to not participate
at all. Undue constraints would also make the evaluation
of the effects of coverage largely meaningless.
[Recommendation
14] The evaluation project should be used to develop
the most appropriate and effective guidelines, rather
than to assess the appropriateness of strictly enforced,
predetermined guidelines.
[Recommendation
15] The guidelines should also be capable of being
adapted to the specific and individual needs of proceedings.
[Recommendation
16] It is recommended that any restrictions imposed
by the guidelines should be compatible with restrictions
applying to out of court coverage and should not directly
seek to further restrict the out-of-court coverage by
media organisations participating in the evaluation project.
[Recommendation
17] Guidelines should be developed in conjunction
with Federal Court judges and representatives of the legal
profession and the media. This will promote participation
in the evaluation project and its evaluation while avoiding
the perception that the program is imposed on participants.
It will also promote compliance with restrictions and
cooperation between all participants.
[Recommendation
18] It is recommended that the Court continue to
take a pro-active role by identifying cases particularly
suitable for radio, television or photographic coverage,
and informally, or even formally, inviting applications
from media organisations.
[Recommendation
19] In approving electronic media coverage of cases,
the Court may wish to ensure that the selection of cases
does not reflect the vested interests of the networks
involved nor a desire for additional publicity by parties.
Before granting permission to record proceedings the Court
may wish to require networks to give written undertakings
that they are not seeking to record proceedings in which
they have a vested interest, nor that they are involved
at the request (financially induced or otherwise) of parties
to the case.
[Recommendation
20] It is recommended that as the electronic media's
capacity to inform and educate is best served through
extended coverage, the Court should treat favourably or
give preference to proposals for extended coverage over
those seeking to broadcast sound bites or snippets.
[Recommendation
21] It is recommended that the Court consider the
desirability of promoting the recording of appellate proceedings
in the early stages of the evaluation project so that
initial concerns regarding the effects of such coverage
on witnesses do not coincide with any teething problems
which may be encountered.
THE CONTENT OF GUIDELINES
[Recommendation
22] It is recommended that the guidelines be expressly
subject to the discretionary power vested in the presiding
judge, acting in consultation with the Chief Justice.
The Court may wish to spell out the basis of such power,
and factors relevant to its exercise, for the sake of
clarity and consistency and to avoid the potential questioning
of a judge's motives.
[Recommendation
23] The Court should require media applications
to state the nature of the recording proposed and the
intended use of the materials. Applications should give
the Court sufficient notice to permit, where deemed appropriate,
the views of all participants to be ascertained.
[Recommendation
24] The guidelines should specify that, unless
otherwise approved by the Court, all recording is to be
undertaken on a pooled basis and that the media are to
be solely responsible for arranging and distributing pool
footage or other materials and for all associated costs.
[Recommendation
25] Guidelines should contain standard (commonly
applied) clauses prohibiting any equipment, recording
technique or actions by media personnel which may disturb
or distract the proceedings.
[Recommendation
26] While the consent of witnesses ought not be
a precondition to permitting the electronic media coverage
of entire proceedings; requiring witnesses to
consent to their evidence being recorded by the
electronic media may be appropriate during the evaluation
project or at least in its early stages.
[Recommendation
27] Objections to being recorded, by participants
other than witnesses, should be heard and determined by
the presiding judge.
[Recommendation
28] It is recommended that, unless otherwise approved
by the Court, visual coverage be restricted to the bench,
bar and witness box; that no close up shots beyond 'head
and shoulders' be permitted; and that reaction shots be
restricted to those being addressed.
[Recommendation
29] The recording of in-court conversations between
lawyers, and between lawyers and parties or witnesses
should be prohibited.
[Recommendation
30] Visual coverage of documents or other exhibits
not tendered in evidence, should be prohibited.
[Recommendation
31] While the Federal Court of Australia does not
presently conduct trials by judge and jury, the televising
of jurors in Australian courts should be prohibited. To
permit electronic media coverage to show or otherwise
identify jurors would be contrary to the policy objectives
underlying current restrictions on media coverage of juries
and would expose jurors to potential risks without enhancing
the benefits of such coverage.
[Recommendation
32] The Court should not seek editorial control.
Instead, the guidelines should be used to reinforce the
requirement that media reports of proceedings be fair,
balanced and accurate.
[Recommendation
33] It is recommended that the Court consider incorporating
a provision in the guidelines that any recordings or photographs
obtained under the evaluation project shall be inadmissible
as evidence in subsequent proceedings.
[Recommendation
34] Unless otherwise authorised by the Court, the
use of recordings or photographs made in the course of
electronic media coverage should be limited to purpose/s
specified in any approved application. The Court may also
wish to specifically prohibit the use of such materials
in any light entertainment or advertising contexts.
[Recommendation
35] It is proposed that the Court consider restricting
the subsequent use of recordings and photographs to contexts
directly related to the proceedings in which they were
created.
[Recommendation
36] Restrictions on the use of recordings or photographs
of proceedings should be binding on all media organisations
wishing to broadcast or publish the material and not merely
on those recording the materials. Media organisations
granted access to court proceedings should be held responsible
for ensuring that recorded materials are distributed on
this understanding.
[Recommendation
37] The Court may wish to consider that, in recognition
of the likelihood that most electronic media reports of
proceedings will use courtroom footage to enhance their
presentation of reports. The Court should not seek to
impose time limits on the broadcast of such materials,
nor prohibit editing or commentary, but should instead
stress the media's obligation to present balanced and
accurate reports.
MONITORING AND EVALUATION
[Recommendation
38] It is recommended that the monitoring role
of the Steering Committee should rely on the research
undertaken by the consultant and information and materials
obtained from the media and the Court. The monitoring
should determine: the number of applications received,
types of cases in which extended media coverage occurs,
the approval rate for applications, reasons given (if
any) for denial of approval or of non-coverage of approved
cases, the nature of proceedings covered, and type of
coverage undertaken. Following each electronic media coverage
of a case the committee may wish to verify the media's
compliance with the guidelines.
[Recommendation
39] Summaries of information should be disseminated
to all Federal Court judges at regular intervals. This
material would include details about each televised case,
together with any recommendations and comments by the
steering committee and updates on developments in other
jurisdictions. Documentation of the arrangements and conditions
imposed would be outlined as well as pre and post-hearing
perceptions of judges, lawyers, members of the media and
the broadcast's viewers. This data would assist in the
process of informed decision-making.
[Recommendation
40] Rather than trying to establish the actual
effects of televising, it is recommended that the evaluation
should focus on the perceived effects of extended media
coverage on proceedings, participants, as well as public
understanding of, and confidence in, the judicial system.
[Recommendation
41] To be meaningful, the evaluation must be comparative.
It should evaluate the perceptions of participants both
before and after first hand experience with audio-visual
televising, and it should compare participants perceptions
of the effects of conventional coverage with their perceptions
of the effects of extended media coverage.
[Recommendation
42] Because judges and lawyers are best placed
to give informed views about whether participants have
been effected by the presence of television cameras, it
is recommended that judges' and lawyers' perceptions be
analysed on a case by case basis. The views of parties,
witnesses, court staff and the media should also be sought,
though not necessarily in the same systematic manner.
[Recommendation
43] Before, during and after the undertaking of
the proposed evaluation project, perceptions held by members
of the public should be measured on a number of related
issues including; their views on the desirability of electronic
media coverage of court proceedings; their opinions about
the operation of the Court; their willingness to participate
in court proceedings; their understanding of broadcast
proceedings and of judicial proceedings in general.
[Recommendation
44] A content analysis of all media reports using
material acquired under the evaluation project should
be undertaken. This analysis should assess how much of
the available material was used; how materials were used;
and the extent to which information provided about individual
cases and the legal process in general was informative.
The analysis should also evaluate whether the reports
were accurate, fair and balanced.
[Recommendation
45] In order to facilitate the effective monitoring
and to enable an accurate content analysis to be undertaken,
it is recommended that participating media organisations
be required to submit copies of broadcast or published
stories, incorporating tapes or photographs made in courts,
within a specified time of their broadcast or publication.
[Recommendation
46] It is important to distinguish between a successful
evaluation project and favourable findings as to extended
media coverage. The success of the evaluation project
should be assessed on the basis of a number of criteria.
First, whether the Court was successful in formulating
and implementing guidelines which not only effectively
dealt with potentially negative effects but which also
ensured the realisation of the potential benefits of extended
media coverage. Secondly, whether its findings as to the
effects of the extended media coverage of court proceedings
stand up to close scrutiny. Thirdly, whether the monitoring
and evaluation of the program facilitated assessment without,
itself adversely affecting proceedings, participants and
public confidence in the judicial system. Fourthly, whether
the program was able to avoid significantly increasing
the workload of the Court's judges and administrative
staff. And finally, whether the evaluation project is
recognised as the long overdue systematic study of perceived
risks and benefits associated with television, (and radio
and photographic) coverage of Australian court proceedings.
LONG TERM AND INTERIM MEASURES
[Recommendation
47] As the Court makes long-term planning decisions
it may wish to consider the potential benefits to be gained
from installing audio-visual recording equipment in its
courtrooms, and make provision for such facilities in
any renovations of existing courts or in plans for new
premises.
[Recommendation
48] In view of the public's increasing utilisation
of the Internet as a source of information, it is recommended
that the Court considers the impact of this technology
and its employment, not only in facilitating awareness
of the Court's proceedings and the publication of the
Court's judgments, but also its potential to enable greater
public and media scrutiny and to publish audio-visual
educational materials, judgment summaries, and ultimately,
audio-visual recordings of the Court's proceedings.
[Recommendation
49] Pending any decision being made regarding the
undertaking of an evaluation project it is recommended
that the Court commences evaluating current instances
of ad hoc coverage of Federal Court proceedings, not only
to document them, but to ascertain what may be learned
from these instances of televising; thus helping identify
appropriate procedures, restrictions to be imposed, and
evaluation methodology to be employed, should the Court
decide to undertake such a project.
[Recommendation
50] It is recommended that the Court continue to
research and evaluate developments in other jurisdictions
and publicises its own experiences, innovations and research.
