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While cautioning against the pitfalls of livestreaming, Chief Justice Debra Mortimer said that inviting the public into courtrooms via video could be putting pressure on judges and counsel to “be entertaining”.
In her Malcolm Blue Memorial Address, Chief Justice Debra Mortimer of the Federal Court said even the most “gregarious” of judges may rethink how often they intervene or ask questions, whether they are being cautious enough, and their communication with counsel.
“Even if some judges are naturally enthusiastic about being entertaining on a livestream, will there be longer term repercussions for the reputation of the court for such behaviour? Will public perception of the court change?” Chief Justice Mortimer questioned.
“Seeing the courtroom as a place for entertainment creates altogether the wrong impression of the work of a court.”
While the Chief Justice acknowledged the myriad benefits of digital court practices and digital document management facilities technologies, including livestreams, she warned there are several human and litigation consequences that “loom large”.
In 2024, 47 different proceedings were livestreamed on YouTube, and more than 200 events within those 47 were streamed overall. In total, they accounted for 7 per cent of all proceedings that year.
In Antoinette Lattouf’s case against the ABC, Chief Justice Mortimer said there were about 2,500 people observing at all times of the day, and a peak of 5,000 concurrent viewers for one witness’s evidence.
One of the Chief Justice’s prime concerns was the pressure on witnesses, who may be curious about how they are perceived over social media and – during breaks for their evidence, and particularly those spread over multiple days – may be tempted to check. They can also feel some “resentment” at being made into a “public figure”.
In the case of Ben Roberts-Smith’s proceedings, Chief Justice Mortimer said viewers attempted to ignore pseudonym orders to find the real identity of witnesses. The Chief Justice added this could affect an individual’s willingness to cooperate before reaching court.
As for counsel, Chief Justice Mortimer said some have shared it is tempting to forget their true audience is the judge and have felt the need to “modify their presentation” to suit the bigger audience.
“In this sense, where a proceeding is being widely reported and scrutinised, livestreaming can intensify the pressure to ‘win’ the battle for headlines in the next day’s reporting or social media commentary, all of which is a distraction from counsel’s true role,” she added.
Chief Justice Mortimer said she was also concerned viewers of a livestream may not respect the “gravity of the situation”, given they are not subjected to the usual rules and traditions of the courtroom.
“They might be drinking or eating. They might be watching with friends or family. They might be exchanging stories about matters unrelated to the proceeding. They might be scrolling through social media or watching television,” Chief Justice Mortimer said.
“What might the effects of this informality be on the administration of justice? Might they be real or are we imagining them because we are, too, wedding to our traditional ways of undertaking proceedings?”
Chief Justice Mortimer said it was important to continue to discuss the advantages and disadvantages of livestreaming courtrooms.
“This is a conversation in which all of the legal profession should be involved,” Chief Justice Mortimer said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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