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Thursday, 19 November 1959

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - First, may I say that I share with the honorable member for Moreton (Mr. Killen) a general dislike for any attempt to interfere with what is called the freedom of the press to publish things which have been said and done in a court of law. The press gets its ability to do this because fair and accurate reports of what occurs in a court of law are privileged, provided there is no malice in the publication. But there does come a time when a balanced judgment has to be exercised between the unbridled use of this right of publication and other interests in the community. I do not need to labour the considerations which tend towards the view that publication ought to be restricted.

Honorable members have mentioned the consideration applying to children. As honorable members know, newspapers select parts of a case for publication - not the whole case, as I shall mention in a moment - and those parts do not do the community any good to know. The honorable member for Mitchell (Mr. Wheeler) provided, strangly enough, a reason for not having wide publicity. He said that wide publicity of divorce proceedings would discourage people from going to the divorce court because they would be frightened of the ensuing publicity.

Mr Killen - That is not my argument.

Sir GARFIELD BARWICK - No, I know. That is the view expressed by the honorable member for Mitchell. The proposition is that somebody who has a just cause for divorce will not pursue it because of the fear of publicity. Now, although the honorable member spoke against this provision, I should think that his reason is an excellent reason for enacting the provision. If it is true that publicity of this sort can discourage a person from seeking his or her proper remedy, then there is something wrong with this liberty of publication.

There is nothing novel about this provision. There is a similar provision in the United Kingdom, a similar provision in Victoria, and a similar provision in South Australia. If I remember rightly, in New South Wales, Queensland and Western Australia there are provisions which give the court power to order that some, or all, of the proceedings shall not be published.

Mr Killen - Do you not think that that is an approach to be preferred to this?

Sir GARFIELD BARWICK - I shall answer that in a moment, because I want to explain to the honorable member for Macquarie (Mr. Luchetti) how I think this has to be balanced out. Honorable members, of course, quite naturally think of the ordinary case of divorce, or of desertion cases and the like, when they object to restriction of publication of proceedings. But this bill covers a number of kinds of cases. It can, for example, cover a nullity case, where one person sues another for nullity of marriage on the ground of physical incapacity to consumate. The court has to go through the most intimate physical details of the two spouses. I have been engaged in such cases. The law, as a profession, has long thought that it is even improper to publish the names of the parties in the law report of the case. That is why you can see in the law reports such mentions as " the case of A v. B falsely called A ". They do not include the names, because it is thought only right that because of the intimate details concerned the name should not be published. Sub-section (2.) is in the bill for that purpose. It is not a direction to the court, but provides a power to enable the court to come to its decision on each particular matter. We have to trust judges with such powers for use in a proper case, when they may rule that publication of either part, or all, of the proceedings be restricted.

Let me suppose another case, for instance a case in which a woman finds her husband committing incest in the home and brings this up as a cause of divorce. The judge would rightly say, "1 am not going to have the name of this party bruited abroad along with the details." This is the kind of case that is eminently suitable not to be disclosed in the press.

The same applies in the case of rape, when it might be very proper not to disclose the details of the circumstances and the name of the raped person.

It is a choice between giving the court the power, and letting it in every case make up its mind whether or not it will allow publication, and doing as I have done, that is to say, specifying - and it is a generous specification, because there is a good deal that can be published under this bill - what can be published and forbidding anything else, and giving the court, in a proper case, the power to say how much can be published. If I may say so with respect, the honorable member for Moreton tends to treat this bill as providing for private hearings of divorce cases. That is not so. The bill will not interfere with the hearing of cases in public. That is preserved, and I for one would not be a party to any general provision for having these cases heard in camera.

There is a tendency to think that the newspaper extends the walls of the court. It does not, because it does not report everything that goes on. It selects. And what is the basis of the selection? On what basis does it select the part of the case that it will communicate to people outside? Well, you and I know that, being human, the young reporter - and I suppose the reporting of such matters falls to the lot of the younger reporters - does not take back to his office copy covering all the humdrum proceedings of the divorce. He wants the highlights. Then he must give the report a headline that will attract attention. Therein we encounter the difficulty.

Honorable members say - and rightly, I think - that the press at the moment is, generally speaking, not playing up as much salacious material as it did in other times. But we are making the law for a long time, and we do not know when the press will enter upon another cycle. We do not want to be rushing back here after the horse is out of the stable and a whole spate of undesirable matter has been published, inserting amendments to try to catch up with the position. If it is reasonable to make a provision along these lines, then this is the time to make it.

I consider that the press has been given a good charter, and I may say in passing that the two main daily newspapers in Sydney have stated that this provision is right, and that they are content with it. I have received only one request to alter this clause. Let me tell you frankly that it came from a judge of a certain court. He put it to me that if there was not publication, the Attorney-General of the day would not be able to learn of the circumstances of cases and of the grounds on which he might intervene. I know that judge well, and I said to him by way of reply, " You and I have been in practice for over 30 years. Can you count on the fingers of one hand the number of interventions you have known of? " And he probably could. Then I asked him the other question, " Have you known of an intervention that was caused by press publicity? " I asked him a third question, " Does the press publish those pieces of evidence that you and I might suspect had been perjured? " He has never answered me. He was not discourteous about it, but I think he realized that when you think it over, press publicity is not, in this sphere, an aid to justice at all. I would not deny that a witness might, conceivably, be attracted occasionally to a court because he read of some incident in the court reported in a newspaper. But, generally speaking, when a Crown Solicitor or an Attorney-General gets material on which to intervene, it is usually as a result of some spitefulness or jealousy on the part of those connected with the parties concerned. Some one wants to inform and try to upset some one else, and that is usually the way in which the information is obtained.

I say, therefore, in answer to the honorable members for Macquarie (Mr. Luchetti) and Chisholm (Sir Wilfrid Kent Hughes) that sub-clause (2.) is very necessary to allow a court to give appropriate directions in cases in which we would all agree that there should be no publication. I quite realize that judges differ widely, as has been suggested in this debate. I am not prepared to concede that a judge would suppress evidence about a socialite when he would not suppress it about somebody else. The honorable member may have had some such experience, but I have not. I would expect that over the course of not too many years the practice under this provision will become fairly uniform. I propose to take two or three steps to try to obtain uniformity.

Dr Evatt - You refer to the practice in accordance with sub-clause (2.)?

Sir GARFIELD BARWICK - I refer to all decisions made under the provisions of this bill, because the decisions will be made by judges all over Australia. It seems to me that it would be very proper to ensure that one common report of cases was circulated amongst them. A new set of law reports is about to be published, covering federal decisions, by a commercial house, and I have asked that firm to include the divorce decisions. In this way the judge in Tasmania, for instance, will get a report of what has happened in New South Wales.

Dr Evatt - You refer to official law reports?

Sir GARFIELD BARWICK - Yes. In addition, I have contemplated another method, although I have not made any resolution as to this. I am of opinion that my department should circulate a small bulletin, monthly or perhaps every two months, giving all the decisions and the practice decisions that are made in the divorce courts throughout Australia. Every judge would get a copy of this bulletin and so would be constantly kept up to date. Perhaps we could also consider the introduction of a procedure which is followed by our American cousins, involving the gathering together every year or so of all the judges who deal with a particular subject, so that they may talk over the problems common to their particular line of business. In addition to these possible methods of ensuring uniformity, of course, the High Court sits, as it were, behind this system, to try to regularize and make the practice uniform.

While there is scope for difference, of course, in the application of any provision involving a discretion, I believe the preponderance of probability is that the courts will settle down to a fairly uniform practice. After all, in my own State the judges have had a power such as that set out in sub-clause (2.), and, except in extreme cases like the ones that I have mentioned, I have not known it to be exercised. If honorable members will look at what can be published, they will find that enough material is included to satisfy the public interest in seeing that there is no clandestinity about the actual procedure. I do not think it is correct, as the honorable member for Moreton (Mr. Killen) was inclined to think, that the newspaper enlarges the court. The newspaper is selective. It picks a bit - and we all know what bit.

Mr Crean - The newspapers do not do so in relation only to divorce cases.

Sir GARFIELD BARWICK - I know, but divorce matters are rather different from other matters. It does not matter very much what the newspapers say about you and me. We can take it. But in a divorce case children are involved, and very intimate details are brought to light. Very often the people concerned are in a position to be hurt. They are upset, and they can be easily hurt at that time by this sort of publicity. I think perhaps the honorable member for Mitchell (Mr. Wheeler) was right - although he reached the wrong conclusion - when he said that the possibility of publication would probably scare away some people who are entitled to go to the courts. I think that in itself is a condemnation of unbridled publication.

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