An Academic Essay on the Case of George Pell in Australia and the role of media

Written in: 2019

Published in: Newcomers journal by The University of Sydney’s 2019 Residential Life Intramural Programs

Photo credit: BBC News

The conflict between having a free media report in court and the suppression order is highlighted by the case of George Pell in Australia. While court report is described in John Fairfax Publications v District Court of NSW (2004) as “a corollary of the right of access to the court by members of the public”, the suppression order, as an exemption of open justice, also has its significance in serving a fair trial. Hence, by analyzing Pell’s case, this essay will argue that current law of suppression order in Australia encounters challenges of the globalization of information and the development of internet. To cope with such context, more freedom should be entitled to media in court and meanwhile, media should become more professional in producing high-quality court report. Specifically, the essay will first provide an overview of the law of suppression order as well as its importance in Pell’s case. Secondly, the difficulty of restricting court information due to foreign report and the limitation of jurisdiction will be discussed. Thirdly, the development of internet, especially social media and its boundless nature, also demonstrates the insufficiency of the order. Lastly, to better serve the justice in court, I suggest a review of the goal of court report and suppression order, and a solution of more freedom combining with higher requirement entitled to media’s court report.

Suppression and the non-publication orders are exemptions of open court. According to 37AE to 37AL in the Federal Court of Australia Act 1976 (Austl.), with the suppression order, media are prohibited from publishing “information tending to reveal the identity” of any party, witness or person related to court and “information that relates to a proceeding before the Court”. One of the purposes of such order is to prevent potential prejudice that may influence the jurors, which ventually guarantees a fair trial for the defendant (Federal Court of Australia Act, 1976, p. 158). If the media outlet fails to follow the order, it is possible to be punished as contempt of court. The duration of the order is not strictly defined, but it should be “no longer than is reasonably necessary to achieve the purpose for which it is made” (Federal Court of Australia Act, 1976, p. 159). In Pell’s case, the suppression order is enforced in May, 2018 when the result of Pell’s first trial is out and lifted in February, 2019 when the prosecutors drop their charges for having a second trial. The aim is to prevent the second trial from being prejudiced by the result of the first trial (BBC, 2019). However, since many Australian media still publish their stories on Pell during the period of suppression order, even though they do not mention Pell’s name, 36 Australian news organizations and journalists are charged of omission of the order and contempt of court (Davey, 2019).

In Pell’s case, the enforcement of a suppressionorder is in its significance since voices on media and internet indeed have the tendency of prejudicing the court. This is indicated during the sentencing that Pell was provided with a consideration of extracurial punishment because he is “publicly pilloried” by the media and suffers from the “unprecedented level of public scorn and criticism” (Director of Public Prosecutions v. George Pell, 2019, p. 23-24). Through such description, it can be told that there is a widespread of hatred from the public towards Pell in both mainstream and social media, which does have the potential to influence or even prejudice the judgement in court. Moreover, while the sexual abuse happening in Catholic churches has been a longlasting problem, the public has the tendency to treat Pell as a “scapegoat” and wants to punish him for the failure of the whole Catholic church, rather than just his individual wrongdoings, yet this is not a fair way of making a judgement from the perspective of the court (Director of Public Prosecutions v. George Pell, 2019, p. 2). Hence, in order to protect a fair trail from being affected by public’s hatred, there is a necessity of an enforcement of a suppression order.

However, the order is insufficient in controlling foreign outlets’ reporting due to the global public interest of the case and the limitation of jurisdiction. In a broad level, sexual abuse in Catholic institutions such as churches, schools and orphanages has been a ubiquitous problem happening around the world for a long time, which has led to a large number of victims since 1950s (BBC, 2019). In an individual level, Pell’s trial draws particular international attention because of his status as “one of the most senior figures within the Catholic Church, globally” (Director of Public Prosecutions v. George Pell, 2019, p. 1). In the sentencing, Judge Kidd specifically addresses that Pell has to be considered as “George Pell – the Archbishop”, rather than “George Pell – the man” (Director of Public Prosecutions v. George Pell, 2019, p. 17). Thus, the wide influence of the topic and the highprofile status of Pell determines a great international public interest attached to the trial, which should justify foreign media’s reporting. As for the jurisdiction, ideally, the suppression order should apply to both media in Australia and foreign media that publish into Australia. While such idea is effective concerning print newspaper and geographical borders of countries, it faces difficulty when encountering digitalized materials and the borderless nature of internet. Hence, it is demonstrated that current suppression order has its limitation when facing the case that has global public interest and involves foreign publications.

Discussing internet’s influence in more detail, it creates ambiguity of defining the subject of the suppression order as well as difficulty on controlling the flow of information. Specifically, internet, especially the social media, raises the question of who is the publisher in today’s context. As what has said by Justin Quill, the lawyer representing 36 accused Australian outlets or journalists, the court cannot “go around charging 10,000 people for one or two comments they’ve made on Twitter” (BBC, 2019). Thus, while the word “publisher” stays undefined, the subject of suppression order is hard to be clarified as well. Besides, while publications from both mainstream outlets and individual internet users have influence on the society, whether they should be regulated based on the same standard is also an unsolved question (BBC, 2019). Moreover, regardless the result of the trail of these 36 organizations and journalists in the future, there is still no solution to prevent internet users from spreading court information. In other words, suppression order’s purpose of limiting information to eliminate prejudice still cannot be fulfilled.

Another challenge placed by internet is the borderless flow of information. In Pell’s case, since December, 2018 when Pell is found guilty, a large number of non-Australian news outlets run the story and Pell’s news widely spreads online both outside and then inside Australia (BBC, 2019). The situation reflects a “digitized, globalized era” summarized by Chadwick (2019), where news “cannot be contained” and “information sharing is today’s tsar”. Due to the online editions of foreign news outlets and social media like Facebook and Twitter, information of Pell’s case is already known by Australian public before the Australian press starting to report. As what described by Spigelman’s (2003), “the internet opens up a new range of possible influences and source of ideas on an international basis”. The digitalized environment today provides a borderless nature to the flow of information, but the suppression order has not yet been able to effectively cope with such new characteristic. In short, the development of internet and social media places difficulties on defining the subject of suppression order and on controlling the flow of digitalized information.

Thus, to cope with current context, it is necessary to firstly understand that rather than being contradictory with each other, free court report and the suppression order actually serve the same goal of guaranteeing a fair trial. To be specific, on one hand, media’s court report is a method of achieving open justice and open justice “is one of the fundamental attributes of a fair trial” (Bosland and Bagnall, 2008, as cited in Australian Law Reform Commission, 2015). With media, the court is run under the scrutiny from the public, so the court can be held into account and the defendant is more likely to enjoy a fair trial. On the other hand, the suppression order is in act for the purpose of preventing prejudice on the jurors. Since once the information of court is out in the public, it will be widely spread and opinions of the public will usually be out of control. It becomes difficult for the jurors to fully avoid the exposure of these opinions, which may then lead to preemptive prejudice. Thus, by keeping information inside the court room, prejudice can be minimized and a fair trial can be guaranteed. Therefore, it is demonstrated that two approaches of court report and suppression order share the same goal of ensuring a fair trial.

Practically, I suggest that media’s court report in Australia can enjoy more freedom, but meanwhile, should perform with more accountability. According to the statistic summarized by McWilliams, there are in total 703 suppression orders enforced in Australia in 2018, especially there are 301 in Victoria and 169 in New South Wales (Ackland, 2018). Victoria State has thus been ironically described as “The Suppression State” (BBC, 2019). Comparing to the United State where the freedom of speech carries more weight, Australia has a higher number of suppression order and is more likely to favor the right of the defendant for having a fair trial. In addition, providing more freedom for media in court does not means giving up a fair trial. Rather than keeping focusing on how court should restrict information, I think it is more practical to pay more attention to the quality of media’s court report. As what described by Bosland and Bagnall (as cited in Australian Law Reform Commission, 2015), “nothing is to be done to discourage the making of fair and accurate reports of judicial proceedings conducted in open court, including by the media”. In other words, as along as the report is fair and accurate, a fair trial can still be well served. The problem that current suppression order tries to deal with is the prejudice caused by misleading information, so once the information is accurate and in high-quality, justice and fair trial should be able to be upheld. Hence, to solve the conflict between media and suppression order, a combination of more freedom and higher requirement on media is suggested.

In conclusion, exemplified through media’s report on Pell’s case in Australia, this essay has examined the difficulties of the globalization of information and the development of internet encountered by current suppression law and further suggested ways to solve the conflict between court report and the suppression order. The essay has first provided an overview of the law of suppression order and its importance in Pell’s case. In addition, Pell’s case demonstrates the order’s limitation on the jurisdiction and its insufficiency on controlling of foreign report. Furthermore, with internet and social media, the subject of suppression order becomes ambiguous and the flow of digitalized information becomes unavoidable. Thus, to better serve the justice in court under today’s environment, the essay has suggested a review of the purpose of court report and suppression order. At the same time, while media should guarantee their fair and accurate court report, they should also enjoy more freedom during reporting. In such ways, media and suppression order can be better balanced and together fulfill a fair trial within today’s digitalized environment.

References

Ackland, R. (2018, December 18). When the same law applies differently to different media. Gazette of Law & Journalism. Retrieved from glj.com. au/a-brief-history-of-recent-court-suppressions/

Australian Law Reform Commission. (2015). Traditional Rights and Freedoms-Encroachments by Commonwealth Laws. Sydney, Australia: author.

Catholic Church child sexual abuse scandal. (2019, February 26). BBC. Retrieved from bbc.com/ news/world-44209971

Chadwick, P. (2019, April 22). The Australian court ban on reporting George Pell’s trial was bound to fail. The Guardian. Retrieved from theguardian.com/ commentisfree/2019/apr/21/australia-court-bangeorge-pell-trial-fail-media-law#img-2

Davey, M. (2019, April 15). George Pell contempt case: media lawyers call for more details about charges. The Guardian. Retrieved fromtheguardian.com/australianews/2019/apr/15/george-pell-contempt-case-medialawyers-call-for-more-details-about-charges

Director of Public Prosecutions v. George Pell (Sentence) 2019 VCC 260 (Austl.). Federal Court of Australia Act 1976 (Australia) s. 37AE-L (Austl.).

George Pell: Why was conviction kept secret?. (2019, February 26). BBC. Retrieved from bbc.com/news/world-australia-47366083

John Fairfax Publications v District Court of NSW 2004 61 NSWLR 344 (Austl.).

Spigelman, J, J. (2003). Open Justice and the Internet. The Law via the Internet 2003 Conference, Sydney, Australia. Retrieved from supremecourt.justice. nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Spigelman/spigelman_speeches_2003.pdf