Category Archives: courts

Court restrictions on identifying children in Australia – a guide for journalists

By MARK PEARSON

We have removed the comparative reporting restrictions tables from the  fifth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2014) which will be published later this year.

Co-author Mark Polden and I have decided to move these comparative tables on reporting restrictions throughout Australia across to this blog – journlaw.com – so we could free up space in the new edition to discuss other important issues such as media law for public relations consultants and the implications of digital and social media.

We will work to update the reporting and publishing restrictions tables over coming months, but for the moment I am publishing them as they stood at the date of our fourth edition in 2011.

As I upload them over coming weeks I would appreciate any students or colleagues using the comments section below to advise of any updates in your jurisdictions and I will act to update the tables accordingly.

Looking forward to your collaborative input!

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Restrictions on reports of proceedings involving children

Note: NO identification of parties or witnesses in any way under the Commonwealth Family Law Act s. 121.

Jurisdiction Law  Exceptions  Legislation 
ACT  Reports of proceedings: Media allowed to report. ID: Cannot be identified. Cannot publish account of family group conference— None mentioned.  Criminal Code 2002, s. 712A. Children and Young People Act 2008, s. 77. 
NSW Reports of proceedings: Media allowed to stay and report. ID: No ID of child mentioned or otherwise involved (including victims and witnesses) living or dead, during or after proceedings, or their siblings.— Court may close proceedings. Court may allow ID or children aged 16 or over can authorise.(Seek legal advice on this.) Or senior next of kin or court (if deceased).

 

Children (Criminal Proceedings)Act 1987, s. 15A; Children and Young Persons (Care and Protection) Act 1998, ss. 104 and 105; Young Offenders Act 1997, s. 65. 
NT  Reports of proceedings: Open court and reports allowed. ID: No restriction.— Magistrate may close court or order suppression.  Youth Justice Act 2005, ss. 49, 50. 
Qld  Reports of proceedings: No. ID: No ID of child accused without court’s permission. No ID of child witness in sexual matter. ID of child witness okay in other matters unless ordered otherwise. Cannot ID authorised officer or police officer in matters with child witnesses. No ID info about child victims. No ID of children subject to allegations of harm or risk of harm or in state custody or guardianship.— Judge may order publication of identifying information for heinous crimes. Court can permit reporting when otherwise prohibited.Child victim can consent after becoming adult if fully informed of publication matter, audience and reason. Youth Justice Act 1992, ss. 234, 301. Child Protection Act 1999, ss. 189, 192, 193. 
SA  Reports of proceedings: Court open to ‘genuine representatives of news media’. No family care proceedings reports. ID: No ID of child parties, witnesses or victims,or other persons other than in official capacity without their permission, including name, address or school. Documentaries may be approved under strict conditions.— Courts can authorise some reports and ID.  Youth Court Act 1993, s. 24; Young Offenders Children’s   Protection Act 1993, s. 59, Children’s Protection Act 1993, s. 13; 59A. 
Jurisdiction  Law  Exceptions  Legislation 
Tas Reports of proceedings: No provision for media to be present without permission of court. ID: No ID of youths or youth witnesses.— Permission of court.  Youth Justice Act 1997, ss. 30, 31; Magistrates Court (Children’s Division) Act 1998, ss. 11, 12. 
Vic Reports of proceedings: Open court and media allowed to report. ID: No identification of child accused or any witnesses to case. No mention of court venue. Long list of banned ID particulars for children and witnesses including: name, title, pseudonym, alias of the person, home or work address or localit0, school or locality; physical description or style of dress; occupation or calling; relationship to identified others; interests or beliefs; real or personal property. No photos.— Permission of court.  Children, Youth and Families Act   2005, ss. 523, 534. 
WA  Reports of proceedings: Yes ID: No ID on child involved in proceedings in any way. No ID of child subject of a protection application or order.— Court can exclude persons. Supreme Court can authorise ID of child.  Children’s Court of Western Australia Act 1988, ss. 31, 35, 36, 36A. Children and Community Services Act 2004, s. 234 

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Sexual offences publishing restrictions in Australia – a guide for journalists

By MARK PEARSON

Our fifth edition of The Journalist’s Guide to Media Law (Allen & Unwin, 2014) goes to the printer this week for publication later this year.

Co-author Mark Polden and I have decided to move some of the comparative tables on reporting restrictions throughout Australia across to this blog – journlaw.com – so we could free up space in the new edition to discuss other important issues such as media law for public relations consultants and the implications of digital and social media.

We will work to update the reporting and publishing restrictions tables over coming months, but for the moment I am publishing them as they stood at the date of our fourth edition in 2011.

As I upload them over coming weeks I would appreciate any students or colleagues using the comments section below to advise of any updates in your jurisdictions and I will act to update the tables accordingly.

Looking forward to your collaborative input!

 

Sexual offences publication restrictions

Jurisdiction  Law Exception Legislation
ACT Complainant must not be identified by name, ‘reference or allusion’, including allowing someone to find out their ‘private, business or official address, email address or telephone number’.


 

Complainant may consent. (Seek legal advice on proving consent.) Evidence (Miscellaneous Provisions) Act 1999, s. 40.
New South Wales
Complainant must not be identified, even after proceedings disposed of. With permission of court. Consent of complainant aged over 14. (Seek legal advice.) With consent of court for   complainants aged under 16.


 

Crimes Act 1900, s. 578A; Children (Criminal Proceedings) Act 1987, s. 15A.
Northern Territory
Complainant must not be identified at all. Accused cannot be identified until after committal. No mention of ‘name, address, school or place of employment’ for either.


 

With permission of court. Sexual Offences (Evidence and Procedure) Act 1983, ss. 6, 7 and 11(2).
Queensland Complainant must not be identified at all. Accused cannot be identified until after committal. No mention of ‘name, address, school or place of employment’ for either. With permission of court.Protection for accused only applies to ‘prescribed sexual offences’:
(a) rape;
(b) attempt to commit rape;
(c) assault with intent to commit rape;
(d) an offence defined in the Criminal Code, section 352.1. Seek legal advice about other offences.


 

Criminal Law (Sexual Offences) Act 1978, ss. 6 and 7.
South Australia Case and related proceedings including identity of accused cannot be reported until accused has been committed for trial. Complainant must not be identified at any stage.Publishers must publish prominent report of result of proceedings they have covered at earlier stage when accused has been identified.


 

  • Pre-committal reports can be made with permission of accused. (Seek advice.)
  • Complainant can be identified with his/her permission or order of court unless child victim.
Evidence Act 1929, ss. 71A and B.
Tasmania Complainant and witnesses other than defendant must not be identified, even if dead. Also bans ‘any picture purporting to be a picture of any of those persons’.


 

Court may allow identification ‘in the public interest’. Evidence Act 2001, s. 194K.
Victoria Complainant must not be identified, even if proceedings not pending. If proceedings not pending, with permission of court or complainant (seek legal advice) or on proof that no complaint of offence had yet been made to police. If proceedings pending, with permission of court only.


 

Judicial Proceedings Reports Act 1958, s. 4.
Western Australia Complainant and their school must not be identified. With authorisation in writing by complainant aged over 18 and mentally capable of making decision. (Seek legal advice.)


 

Evidence Act 1906, s. 36c.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Barrister and co-author Mark Polden chats with @journlaw on #defamation defences: #MLGriff

By MARK PEARSON

Defamation laws can be intimidating for journalists, bloggers and other professional communicators. The key, according to barrister Mark Polden, is in researching and writing to the basic defences.

Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

In this 11 minute interview with @journlaw, he outlines in simple terms the three ‘bread and butter’ defences used by writers and publishers – truth, fair report and honest opinion (fair comment).

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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On Skype with @journlaw – barrister and co-author Mark Polden on #defamation basics: #MLGriff

By MARK PEARSON

Exactly what is defamation and how does it apply to your average journalist or blogger?

That’s what I asked barrister Mark Polden in this short interview on defamation basics. Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

Here he offers a lay definition of defamation and gives some examples of how journalists, bloggers and other professional communicators might write to minimise the threat of legal action.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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15 mins with @journlaw – Peter Gregory on the art of court reporting #MLGriff #medialaw

By MARK PEARSON

What is the secret to good court reporting? Highly experienced court reporter and academic Peter Gregory [@petergregory17] – author of Court Reporting in Australia (Cambridge University Press, 2005) – tells @journlaw the essential techniques needed by a journalist wanting to cover the court reporting round.

CourtReportinginAustraliacoverGregory explains how he recently returned to duty when he filled in to cover the sentencing of Adrian Bayley for the murder of Jill Meagher – in a marathon 12 hour shift!

He discusses the court reporter’s difficulties in writing fair and accurate reports of trials, particularly when they might be unfolding in different courtrooms at the same time.

He also gives tips on how a journalist might stand up in court to oppose a suppression order being imposed by a judge or magistrate.

Useful viewing for journalism and law students – and for anyone wanting an insight into the work of the court reporter.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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15 mins with @journlaw – Peter Gregory on ‘contempt and the court reporter’ #MLGriff #medialaw

By MARK PEARSON

We hear about the many types of contempt affecting the role of the court reporter – but how does a journalist manage this in practice?

That is exactly the issue I raised with veteran court reporter (now academic) Peter Gregory [@petergregory17] in this interview covering the main types of contempt of court affecting court reporting – contempt in the face of the court, disobedience contempt, sub judice (prejudicial reporting) and interference with the deliberations of jurors.

Gregory – author of Court Reporting in Australia (Cambridge University Press, 2005) – explains how court reporters might be affected by such forms of contempt, offers examples from his own career, and suggests how journalists might adjust their own practice to minimise risk.

CourtReportinginAustraliacoverHe looks at the impact of new technologies – particularly social media – in the courtroom. Finally, he assesses the dynamics of social media and traditional media at play in the major Victorian trial of the murderer of Irishwoman Jill Meagher (Adrian Bayley) which resulted in the jailing of blogger Derryn Hinch on a contempt charge after disobeying a suppression order.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Ten minutes with @journlaw – Anne Stanford from @SCVSupremeCourt talks open justice #MLGriff

By MARK PEARSON

In this week’s interview (actually 14 minutes!) I chat with the Strategic Communication Manager at the Supreme Court of Victoria, Anne Stanford, about open justice, suppression orders and general court reporting guidelines.

Listen to Supreme Court of Victoria Strategic Communication Manager Anne Stanford on open justice.

Listen to Supreme Court of Victoria Strategic Communication Manager Anne Stanford on open justice.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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#Hinch (@HumanHeadline), #Morcombe and open justice – lessons in media law

By MARK PEARSON

It is timely that in the space of a week we should see the Human Headline (@HumanHeadline) Derryn Hinch released from jail for a publication offence and a serial offender receive a life sentence for the sex murder of teenager Daniel Morcombe.

CatchingTheDevil(Morcombefrontpage14-3-14)C-M

Courier Mail front page 14-3-14

We learned yesterday after Brett Peter Cowan was convicted of that 2003 crime that he had served time twice earlier for similar offences.

He is exactly the kind of individual that Hinch wants placed on a public sex offender register for exactly the reason most talkback callers and social media commenters are asking this question: How can we release such individuals anonymously into our communities when we cannot be sure they will not strike again?

Hinch asked it again this morning:

Hinch became the first Australian journalist jailed this millennium for a publishing offence when he was jailed for 50 days refusing to pay a $100,000 fine for breaching a suppression order on the prior convictions of Adrian Ernest Bayley – the accused sex murderer of ABC worker Jill Meagher in Melbourne in 2012.

In 2011 he was sentenced to five months of home detention for publicly naming two sex offenders at a rally and on his website in defiance of such anonymity orders.

In 1987 he was jailed on a contempt of court charge after broadcasting the criminal record of a former priest Michael Glennon accused of child sex offences and implying his guilt in his high rating Melbourne radio program.

It was only by a 4-3 majority that the High Court later stopped short of overturning Glennon’s conviction on those sex charges on the grounds of Hinch prejudicing his fair trial. (Glennon died in jail this year.)

Journalists and media law students have much to learn from the events of the past week.

While the crimes themselves left a trail of human destruction, the Hinch and Morcombe stories make for ideal case studies in a media law module covering open justice, contempt of court and court reporting – the exact module my students will be starting next week.

They will get to research and debate these kinds of important questions that arise from the week’s events:

  • What public policy issues are at play that see a journalist jailed for reporting the past convictions of an individual convicted of a high profile crime?
  • What does such a penalty say about Australia’s standard of media freedom?
  • Why is Australia’s approach to this level of suppression different from that applying in the United States?
  • Why should the mainstream media be prevented from reporting such material when social media platforms and certain websites are full of it?
  • Why would Hinch’s blog and Twitter feed where he breached the suppression orders over Bayley not represent a ‘real risk of prejudice’ to the trial, when mainstream media coverage might do so?
  • How can juries be quarantined from such information and – if they can’t – why shouldn’t the media be allowed to publish it?
  • Do other methods of dealing with juries – judges’ instructions, training, sequestering etc – mean we no longer need to suppress such material?
  • Are the past offences of such criminals matters of such overwhelming social importance and public concern that suppression of the details should be considered contrary to the public interest?
  • Should the Courier-Mail’s front page heading of February 21, 2014 – ‘Daniel’s Killer’ – have forced the trial to be aborted? Should it be grounds for a sub judice contempt charge? Should it be grounds for Cowan’s appeal?
  • How can a journalist report upon such proceedings in an interesting and timely way while navigating the various restrictions that apply?
  • How ‘open’ should ‘open justice’ be in such high profile trials? Should cameras and smartphone recordings be allowed in court? Should tweeting and other social media usage be allowed in court?
  • Is it appropriate in the modern era of communication that a major television network has to rely on a presenter standing outside a courthouse relaying sentencing information to the audience from a court reporter on the inside via telephone?
  • How much social media commentary should be tolerated about such cases while an accused is facing trial?

I’m sure many other questions arise too – and would be keen for other educators, journalists, lawyers and students to use the Comments section here to pose them so my students can take them up in lecture and tutorial discussions.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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The Human Headline legacy – the jailed Hinch, suppression and free expression

By MARK PEARSON

Broadcaster, tweeter, blogger and veteran journalist Derryn Hinch – the self-proclaimed ‘Human Headline’ – has been released from jail after serving a 50 day sentence for breaching a suppression order. 

Derryn Hinch's 'Human Headline' blog - Countdown to Freedom

Derryn Hinch’s ‘Human Headline’ blog – Countdown to Freedom

Hinch had refused to pay a $100,000 fine over his blog and Twitter comments including suppressed background material on Adrian Ernest Bayley, accused of the Melbourne murder of Irish woman Jill Meagher.

Hinch has been jailed twice, fined and sentenced to home detention for his contemptuous reportage and commentary about sex offenders over more than a quarter of a century.

While much of the coverage of his prosecutions and trials has focused on his cavalier and principled stance in the vein of his ‘Human Headline’ moniker, he has also been responsible for a body of case law covering sub judice contempt, the naming of a child sexual assault victim and the defiance of suppression orders – in his television and talkback radio programs, blogs and Twitter feeds.

I am preparing a paper for the ANZCA conference in Melbourne in July, reporting on a legal and textual analysis of eight key Victorian and High Court cases involving Hinch as a party in 1986, 1987, 1996, 2011 and 2013.

It reviews these key cases involving Hinch as a defendant and an appellant since 1986 – including Magistrates, Supreme Court, Court of Appeal and two High Court judgments – and identifies the key media law principles shaped in the process.

It concludes that the Hinch legacy is far more significant than his shallow ‘Human Headline’ title suggests – and ventures into important human rights questions arising in the complex legal and moral terrain where free expression, the ‘public interest’ and the ‘public right to know’ compete with an accused’s right to a fair trial, an ex-prisoner’s right to rehabilitation and a child’s right to protection from sexual predators.

For example, Hinch’s appeal to the High Court over his contempt conviction in 1987 was unsuccessful but resulted in a broadening of the public interest defence to sub judice contempt.

His latest case offers an excellent summary of the relevant factors considered in deciding whether there is a real risk of prejudice to a trial, because Hinch was acquitted on a second contempt charge that his blog ‘had a tendency, or was calculated, to interfere with the due administration of justice in the trial of Bayley’.

Victorian Supreme Court Justice Stephen Kaye ruled that three factors combined to reduce the tendency of Hinch’s blogging to prejudice potential jurors: the small readership of the article, the period of delay between the publication of the article and the likely trial date of Bayley, and other prejudicial material about Bayley circulating in the media and social media at the time (para 114). While ‘highly prejudicial’, Justice Kaye had a ‘reasonable doubt’ in light of those three factors that the article would have prevented Bayley getting a fair trial.

I will post updates on this paper as the research and writing unfolds. Meanwhile, no matter what you think of Hinch’s bravado in his naming and shaming of sex offenders, at least this week we should be able to celebrate the release of an Australian journalist from jail.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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If #cyberbullying is up, why is youth #suicide down?

By MARK PEARSON

[Extracted from my public lecture ‘Social Media – Risks and Rewards’]

Administrators and parents are indeed concerned about social media – partly because the little they know about it has been informed via the lens of the news media and war stories like those I have related above. Their perceptions are also skewed by the new industry of cyber-safety – everything from net nanny systems for your IT system through to speakers and consultants ready to advise on the evils of trolls and cyber-predators. I am not suggesting such inputs are unnecessary, but I wonder about their impact on policy at a time when parents and administrators are already approaching Web 2.0 with trepidation.

With all these resources committed to it, one might be excused for believing cyberbullying had driven young people to the depths of depression and anxiety and were consequently taking their own lives at an alarming rate. The fact is that in the decade 2000-2010 – a period during which both Internet and social media usage grew rapidly – youth suicide in Australia actually declined. It declined across the whole 15-24 year age group, with suicides among males in that age group decreasing by 34 per cent. That is not to say, however, that the rate of youth suicide is not alarming. The number of suicides is still far too high and like all stats this figure can have a range of explanations – better counselling, changes in media coverage, the efforts of campaigns like Beyond Blue and RU OK? (partly on social media),  and improved medicines for psychiatric conditions. …While it is tragic for any young person to take their life for such a reason, there seems to be no hard data that Internet and social media usage is driving more young people to this level of despair (ABS, 2012).

After all, social media is in many ways just a microcosm of our broader lives, and problems like bullying have always existed. These platforms present new channels for the demonstration of such behaviours, replacing or supplementing replacing the schoolyard taunts, the prank calls, the practical jokes and the toilet graffiti.

See the full lecture at: https://journlaw.com/2013/08/29/social-media-risks-and-rewards-journlaws-public-lecture/

© Mark Pearson 2013

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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