9th Greek Australian Legal and Medical Conference
Rhodes, Greece 2003

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Mr Nicholas Cowdery AM QC
Director of Public Prosecutions, NSW
President, International Association of Prosecutors


The title of this paper (given to me, I suspect, by Phillips CJ), now that it has served its purpose of engaging your attention, really does need to be explained ­ especially to an international audience.

No, the words are not to be taken literally; no, I have not had, am not having and do not ever expect to have a love affair with either or both Mr Laws or Mr Jones (consecutively or simultaneously). Indeed, in my view both men are better avoided collectively and individually ­ but we do not all have a choice.

Let me explain: John Laws (aka The Golden Tonsils) and Alan Jones (aka The Parrot and a lot of other things that are better left unstated) are radio broadcasters of the talkback commentary variety with large audiences in NSW (in the case of Jones) and Australia (in the case of Laws, who has been in the game for 50 years). They wield disproportionate power over politicians and other public policy makers ­ and they hate, to differing degrees (Jones being the worse offender), independent statutory officers such as Directors of Public Prosecutions who speak out objectively on issues in criminal justice. That is where we make contact, on the public airwaves. It is usually not head to head ­ we tend to talk about, rather than to, each other. And usually not in very flattering terms.

So here I go again

First, however, I want to say something about government and about the media, to explore the problem that we face in a full context. It is often helpful to go back to first principles in order to establish the ground rules for discussion and it is easy to lose sight of them in the heat of argument or in the hands of manipulators. It will also help us to see how far short of perfection we have fallen.

How Government Operates

We have a Westminster system of government by representative democracy. We adhere to the rule of law ­ what I prefer to call the "just rule of law". It protects us. It is essential. In 1866, just after the American Civil War, Justice Davis of the Supreme Court of the United States, writing for the Court in Ex Parte Milligan, 71 US 2, 119 said:

"By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamour of an excited people."

Scope for tyranny rests not just with rulers ­ there can be tyranny of the masses.

We apply the rule of law in a way that recognises the separation of powers ­ between the legislature (that makes the law, by and large), the executive (which manages the functions of the state) and the judiciary (which administers justice by adjudicating disputes and imposing penalties ­ and occasionally also makes law). These are not optional arrangements ­ these are the three separate arms of government.

The doctrine of the separation of powers in its modern form was articulated by the French writer Montesquieu in 1748. Seventeen years later (in 1765 ­ and still before European settlement in Australia) the English jurist Blackstone wrote of the reasons for the separation of the administration of justice from the other two branches:

"Were [the administration of justice] joined with the legislative [power], the life, liberty and property of the subject would be in the hands of arbitrary judges, whose decisions would then be regulated only by their own opinions and not by any fundamental principles of law: which the legislators may depart from, yet judges are bound to observe. Were it [ie. the administration of justice] joined with the executive, this union might soon be an overbalance for the legislative Nothing is more to be avoided in a free constitution than uniting the provinces of a judge and a minister of state." [emphasis added]

Those final words are significant because the consequences may be more than just an overbalance for the legislature; yet uniting the provinces of a judge and a minister is precisely what sections of the media and even some politicians constantly try to do. I shall come back to that later in the Australian context, but it is salutary to take an example from the United Kingdom that was reported in February of this year. It has many resonances for Australia.

The High Court in London upheld applications made by six asylum seekers, challenging the implementation of a new government policy that was contrary to UK human rights law. The Home Secretary, whose legislation had been set aside, attacked judges for (it was reported) undermining attempts to stem the influx of asylum seekers. He is reported to have said that the judgment sent out the wrong message: "There's a climate of instability and insecurity, and that's a very dangerous moment". He warned judges that they were in danger of damaging democracy. He said: "If public policy can always be overridden by challenge through the courts, then democracy itself is under threat".

No, Mr Blunkett, the courts and the judges are not threatening democracy. All that is required for legitimate public policy to be implemented is for it to be enacted in legislation that is legally valid.

The tabloid media took up the cry with its usual alacrity and lack of restraint. One headline said: "So what have our judges got against Britain?" and the story continued: "Britain's unaccountable and unelected judges are openly, and with increasing arrogance and perversity, usurping the role of Parliament". No, no and no! And we see similar things in Australia in the context of sentencing.

At the end of her term as President of the NSW Bar Association in 2001, Ruth McColl SC sounded a timely warning for us all. In her final column in the Bar's monthly newsletter she wrote:

"Lawyers tend to take these core values [ie. the rule of law and democratic principles] for granted. We work with the rule of law every day. We should not lose sight of the fact that the rule of law is not as concrete and ever-present a phenomenon to some members of the community as it is to us. At times, the transient, but regrettably politically significant, influence of opinion polls can push the rule of law to one side and allow pragmatism to prevail over principle."

It matters not that the motives of the policy makers may be honourable. Justice Brandeis in 1928 warned in Olmstead v United States, 277 US 438, 479:

"Experience should teach us to be most on our guard to protect liberty whenthe government's purposes are beneficent The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

In the run-up to an election ­ the ultimate opinion poll ­ the risk of this happening is magnified; and it is fuelled by the media. Lawyers, at least ­ but the community generally ­ must be on guard against it.

How the Media Operate(s)

It was Oscar Wilde who said, famously:

"By giving us the opinions of the uneducated, modern journalism keeps us in touch with the ignorance of the community".

He was speaking of the modernity of the late 19th Century, of course. Is journalism in the early 21st Century any different ­ or better? Or have the public media, or sections of it at least, developed and refined their role to one of maintaining the ignorance of the community? And do they now do it, not by giving us the opinions of the uneducated in society, but by giving us their own, directly or indirectly? And for what purposes? How do they connect with the politicians? Does it matter?

A relatively small part of the media concerns itself with providing us with accurate information and informed (and explained) opinion. This might be termed the "quality" end of the media ­ and it is very small, being intended (as it must be) for consumers with attention spans greater than ten seconds. Most radio, most television and the tabloid press are principally concerned with entertaining us. Their pitch is to the emotions, rather than the intellect and there is a vast quantity of it. The Australian researcher and social commentator Hugh Mackay identified aspects of the problem in a recent article:

"The 'entertain me!' syndrome violates our values. The more stories we hear, the less each one matters and the more we run the risk of reducing our capacity to interpret and judge. Our moral clarity is dulled by the sheer volume of media messages to which we are exposed. The quantity of media content becomes a distraction from its quality."

He referred also to the shortening of our attention spans by the media offering us summaries of everything without details; to the effect on our vocabularies; and to the fostering of an adversarial approach to life.

In the information age, however, the media recognise that even serious matters do need to be included in what they publish, so they try to do even that in a way that they interpret as entertaining. How? Sometimes by introducing humour ­ but more often by introducing conflict accompanied by dramatic illustration. Justice Kirby in the Eleventh AIJA Oration in Judicial Administration delivered on 22 June 2001 described the way the public media operate:

"Their employees generally work under the most severe deadlines. Dense prose is uncongenial and off-putting. Complex issues have to be summarised, synthesised and, if possible, personalised. Those who do not play by these rules will have their stories spiked and ignored. That is just the way it is."

In most important, serious issues there are at least two points of view. Journalists and especially commentators are adept at identifying the opposing ends of the spectrum of views that might apply to any matter, simplifying them (often by omitting relevant material, especially if it is complicating) and erecting an adversarial framework of conflict. Often it is done, as Justice Kirby observed, by pitting personalities against each other. If the promoter of one view can be portrayed as a baddie and the other as a goodie (or, even better, a victim), then so much the better. Consequently, information of relevance and maybe even of interest to us, but in which there is no facile conflict, may never be published. (Even the vast proportion of the thousands of criminal cases heard in NSW each year ­ cases of inherent conflict ­ are never reported publicly. Indeed, court reporting generally in Australia is in a woeful state, even the reporting of very important decisions.)

Conflict sells. People are prone to react emotionally, rather than intellectually, to their entertainment. They are usually not tempted to analyse the information they are given and to identify the gaps in fact or logic. And of course, sales attract advertising and other forms of support. (Yes, I fear that ultimately it is all down to dollars.) It must be conceded, however, that journalists are news reporters and not historians. But commentators have no excuses.

The worst practitioners of this form of comment are the talkback radio entertainers (speaking of dollars), who often have their own, frequently hidden but not undiscernible, motives for what they say. Two things should be said about these people. The first came from John Laws at the time of the "cash for comment" hearings: "I'm not a journalist and I don't pretend to be a journalist. I'm an entertainer there isn't a hook for ethics." His conviction for an offence under the Jury Act underscores that proposition. (That does not make him very lovable, in my judgment.)

The second actually came earlier in the form of masterly understatement and keen prescience from the former Australian Broadcasting Tribunal in 1990: "Talkback encourages robust debate on issues by people who are not fully informed."

The latter comment could apply to the media more broadly and it is often in the interests of the media to keep their consumers in a state of ignorance ­ that better enables the manipulation of opinion and its misrepresentation. Justice Kirby referred to this in his oration:

"There is a shocking ignorance about civics in Australia. It borders on a deep national malaise. It has taken the centenary of our Constitution to demonstrate this most clearly. We must learn from our mistakes. A nation that does not know and cherish its institutions squanders its heritage. It lies vulnerable to ignorance and extremism, to prejudice and populist over-simplifications."

Talkback terrorism is a peculiarly New South Welsh phenomenon in Australia. This is not the time to explore the reasons for that; but it is allowed to flourish by the absence of an effective balancing force at the quality end. There are moderate voices able to be heard above the din ­ but one has to listen for them. I think a large part of the problem is the sheer unwillingness of many sections of the media to report any good news. For example, there are successes in some crime prevention initiatives ­ but the public never gets to hear about them. Paola Totaro tries in the Sydney Morning Herald ­ but it happens so infrequently that we can remember almost every occasion.

(A small aside: I would be prepared to bet ­ although I have not done an analysis ­ that before 16 February most callers allowed through to express a view on Sydney talkback radio were expressing pro-invasion sentiments about Iraq. There was a very large and representative rally and march on 16 February against an invasion. I would also be prepared to bet that notwithstanding that large demonstration of general public opposition to invasion, the callers allowed through after 16 February still expressed pro-invasion sympathies.)

The media is hooked on sensationalism. Strong images (be they pictorial or verbal, moving or still) are preferred, wherever available, because they make an impact. They grab attention. Most of life, however, is fairly predictable and undramatic ­ dull to those who are not directly involved. Often the journalistic impact is manufactured.

  • A "shock horror" report is made that asbestos has been found in a school building. Frankly, I would be surprised if asbestos could not be found in a school building of some age.
  • An hysterical report is made that a child has died or been mistreated while the Department of Community Services (DoCS) was not immediately on hand. Again, DoCS cannot be everywhere and such tragedies will happen (whoever may be the head of DoCS at the time).
  • A spread appears on emergency patients in public hospitals having to wait for attention, or worse. Be thankful they were not seeking treatment in a developing country ­ or even in some parts of the UK.
  • A report is made in terms of outrage that a defendant on bail or a released former prisoner has committed another criminal offence. It is bound to happen. It is a part of life. That's what criminals have always done and it should not surprise us at all.

An examination of the circumstances of such events demonstrates just how common and ordinary they are; nevertheless, the media discourages critical analysis. It often omits relevant facts. It ignores competing hypotheses, especially where they might explain away a dramatic story.

Political Involvement

There is usually a secondary motive for sensational reports by the media, especially at election time. They wish to attract the attention and involvement of politicians.

One of the fictions on which our democratic system is based is that politicians are representatives of the public ­ of the constituencies who elect them. It is a useful fiction, but a fiction nevertheless. (Just look at the processes for nomination of major party candidates in electorates. Just look at how they act after their election. Look at where their loyalties lie when they are tested.) In truth, in our society the executive, by and large, controls the legislature and the executive acts in response to a mixture of party political policies and bureaucratic ambition. It is at its worst when it does not have effective parliamentary opposition. It would be a disaster if the judiciary were impotent.

The media, especially talkback radio in my State and Messrs Laws and Jones particularly, has become vital in the strategies of politicians. They involve themselves in reporting by the media and take their cues from what is published. On its face that may not be a wholly bad thing. Politicians should respond to community concerns ­ but is that what they are really doing? In my view the initial difficulty is that the media (especially talkback radio) is

not generally reflecting the concerns of the community at all. Rather, in general terms, they are selectively identifying issues that might make sensational stories, pruning them of detail, avoiding careful analysis, promoting only supporting expressions of opinion and serving them up to the consumers as conflict with entertainment value. Any side benefit to the community is usually accidental.

Politicians enter the loop with the media and both contribute to and take from that loop. When they do so, they are not entering into informed debate (unless they have stumbled into the quality end of the media). They are usually entering a highly charged emotional outpouring fuelled by unrepresentative and uninformed points of view promoted for their immediate entertainment value. Politicians make commitments to the process and also take away from it impressions based on selectively chosen material and emotionally directed declarations. They also sometimes make commitments to action ­ instantly ­ in a way that they hope will attract votes at the next election. On that basis policy is made ­ and sometimes even law. Even criminal law.

The media also pitches itself into the political law and order "auctions" that occur especially at election time. Headlines appear that bear little relationship in substance to the information sought to be conveyed. Statistics are regularly selectively chosen and cynically massaged.

The problems we face are shared in other jurisdictions, including the UK. For a general summary of the situation I can do no better than quote the President of the International Society for the Reform of Criminal Law, the eminent London barrister, Michael Hill QC, writing in the Society's journal The Reformer.

"Under the social contract between state and individual, the latter surrenders to the former the right, and, perhaps, the power to exact penalties upon those who do him/her harm and, in return, expects to receive from the former the freedom to live an unthreatened life within the limits of the social consensus and the law. As politicians and citizens move further and further apart, the politicians seek ever more stridently to tap into what they call public opinion. Whether the opinion they aim at is genuinely that of the public and not merely an echo of the tabloid screech is not important [to them]

For the politicians, there is no difference. There is nothing very difficult in recognising that if citizens feel unable to live within their own society without threat or fear, law and order becomes a totem for the politicians.

"And, so, the criminal law, its enforcement, the administration of criminal justice, the penal system become the stuff of party politics. Slogans such as tough on crime and tough on the causes of crime ring through the chattering classes and pound at the remainder of society through the media. The statistics of crime are massaged to show that the government of the day has or has not been successful in returning the streets to the residents. No government in any jurisdiction of which I have any experience shows any sign of stepping back from the puerile superficiality of the debate to think beyond giving the state and its agents increasing powers and visiting punishment of increasing severity upon those defendants who actually emerge from investigation and trial as convicted criminals. The fallacies have been known to us all for decades."

The media most often becomes engaged in the day-to-day criminal justice process through the reporting of an individual case in which something odd has happened, or the reporting of the conduct of a person who has done something odd. Even then they play a sort of con game: they pretend to know what they are talking about and purport to be able to express it in a few words.


So what can be done about all this? I speak, of course, from my perspective as DPP, although the ideas may be applicable more broadly to other agencies. As DPP I enjoy a large measure of independence in my operations and the security of tenure until (I believe) the age of 72. Not every CEO has those advantages (or carries the burdens that they impose).

Commonly a crisis occurs when a prisoner is sentenced to a penalty that someone ­ often the victim or victim's family ­ regards as inadequate. A media commentator such as Mr Laws or Mr Jones picks it up ­ early morning radio first (usually), followed by press and television. Along the line the Attorney General asks me for a report on the matter and maybe for consideration of an appeal. A report is obtained from the lawyer involved in the matter. At least one and usually two other senior lawyers report on the prospects of success for an appeal. I then make a decision. If there is an appeal, that is the end of the current crisis. If there is not, usually an Opposition politician demands that the Attorney General exercise his residual power to appeal. He has my report by then and refuses to intervene, citing the independence of the DPP and the responsibilities of that office. There is a bit more muttering all round and the crisis fizzles out. Sometimes the media even lose interest when I say that I will look at the matter and they never report the result.

Sometimes the problem is the acquittal of someone who probably should have been convicted. There is nothing I can do about that ­ yet.

Sometimes the problem is the perceived failure of a prosecutor to keep a victim informed about developments in a case, especially where it becomes a plea of guilty to a lesser charge than that laid by the police ­ and sometimes in such cases the prosecutor could have done more.

What do I do in such circumstances? How do I prosecute that love affair of the title of this paper? There are a few rules.

  1. Do not panic. On its face and at first blush, the story may reflect very adversely on the agency; but there will always be more to it than has been reported.
  2. Do not play the media game. They do not know all about the subject and they cannot express its nature in a few words. Do not attempt to do so, either, although keep in mind the short attention span of the reader, listener or watcher.
  3. Do not be sucked into the kind of response that the media is seeking ­ the sort of response that will identify more sources of possible conflict and enable even more outrageous assertions to be made.
  4. Be selective and economical in dealings with the media. Do not respond to everything and refuse requests from time to time.
  5. Control the discussion. Don't be afraid to interrupt or to adopt the politicians' trick of sidestepping a question and providing the answer to a question that you would rather have been asked. Volunteer information only if it assists.
  6. Set the pace of your response. Do not follow the media lead on timing or apparent enthusiasm. Take time to think (without appearing evasive).
  7. If it is a sensible thing to do, say that you do not know the answer to a question.

There are a few rules, too, about what to say ­ about the content.

  1. Take time to discover all about the matter. Ensure that you know more about it than your interrogator (and that this remains the case at the end of the discussion). Provide information that is accurate.
  2. Tell the truth. (If that is not practicable, then say nothing. Indeed, sometimes it is advisable to take the approach that if you cannot say anything to improve the situation, then say nothing at all.)
  3. Have an eye to the broader political implications of the discussion.
  4. Be relevant and to the point ­ economical in responses, unless some purpose is served by being a little more discursive.
  5. Be firm ­ and, if necessary, persistent.

If all this is done, I believe that there will be a greater chance that censure, if it comes, will be soundly based ­ and that must be in the interests of the community generally. Of course, the best strategy of all is to ensure that everything is done correctly in the first place and that there is no proper basis for criticism at all. Or just hope that other news takes priority on the day.

Love affairs of this kind can be very fickle things.

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Copyright 2003. Greek/Australian International Legal and Medical Conference.
For more information contact Jenny Crofts at jennycrofts@ozemail.com.au