Paper presented at the Australia & New Zealand
Supreme & Federal Court Judges’ Conference
Christchurch 23 January 2023
The actions and reactions of the New Zealand media in the wake of the Christchurch mosque attacks and subsequent court proceedings demonstrate the value of institutional cooperation and mutual trust.
That conclusion is drawn from two papers written in conjunction with my colleague, Dr Denis Muller of Melbourne University. The first examined New Zealand and overseas coverage of the attacks themselves in 2019. The second, published in the New Zealand Law Journal over the latter part of last year, related to the sentencing of Brenton Harrison Tarrant in 2020. There may be a third paper following a coronial hearing and Tarrant’s appeal against conviction and sentence.
However, I need to start by briefly discussing the nature of terrorism itself. It is a violent crime where the victims are not the end, but the means to an end. They are the means by which a message can be sent to the public in a way that cannot be ignored. French journalist Paul Brousse in 1877 coined the phrase Propaganda par le fait – propaganda by the deed.
It became the war cry of militant anarchists in the late 19th and early 20th centuries, a period that saw exponential growth in mass circulation newspapers.
After he assassinated the Empress of Austria in 1898, anarchist Luigi Lucheni was reported as having said: “I would like to kill someone, but it would have to be someone important, so that it gets in the papers!”.
It was, and ‘propaganda of the deed’ has found a ready media platform over the following 125 years.
Each advance in media technology has provided ever more graphic means of publicising the deed – from large front page drawings depicting the assassination of US President McKinley in 1901 to live tv coverage of the second aircraft smashing into the twin towers a century later. And, in the age of social media, a terrorist live-streaming the killing of 51 people in places of worship a short distance from where we are today.
Media not only bear witness to these actions. They are an essential component of the deed itself. The publicity they provide achieves the objectives of the terrorist, magnifying and spreading the trauma. Editors are presented with the classic Hobson’s Choice. It is not a question of whether to cover these events: They cannot ignore them despite publicity achieving the terrorist’s objective. The dilemma is not lost on most of them as they turn their attention to how the events are covered.
However, the theatre of terrorism, as it is also known, is so gripping that some media organisations put spectacle ahead of principle. I recall, for example, a British tabloid describing the sound of bodies hitting the ground after falling from the World Trade Centre on September 11. Others unwittingly ‘enhance’ the notoriety of perpetrators and give oxygen to their messages.
My colleague Denis Muller and I have found a moderating factor that may even stay the hand of a tabloid editor. The closer media outlets are to the site of the crime, the greater the consideration for the audience and, thereby, the victims. We termed this effect the Proximity Filter.
It was certainly present in coverage of the attacks on the two Christchurch mosques and we detailed that in the first of our papers. We concluded a proximity ﬁlter was used by New Zealand media who identiﬁed the victims as part of their own community (and tailored coverage accordingly), but the events were seen as ‘ foreign ’ by Australian journalists who used perceived distance as justiﬁcation for extremely graphic content and images of the gunman that white supremacists would view as aggrandising. Those extremists have lionised the mosque shooter on the more clandestine social media platforms.
The filter has been present in other terrorist attacks. For example, while the aircraft crashing into the second tower became the stock image of 9/11 for media outside America, within the United States – amid an upswelling of patriotism – it was more likely to be a picture of three dust-covered firemen securing an intact Stars and Stripes to a post protruding from the rubble. It became the Heroes 2001 postage stamp.
In Australia, the Joint Commonwealth-New South Wales Review of the Martin Place Siege in 2014 found the media coverage was “measured and responsible”. The emphasis was on the victims, not the attacker. I will return to the café siege shortly.
I need to caution against seeing the filter as all-powerful. In Britain, for example, some tabloid coverage of domestic terrorism attributed to Muslims has been Islamophobic, motivated by a desire to provoke strong emotional responses in readers. Other British coverage has been at pains to distance extremists from the Islamic faith.
After the massacre of staff of the French magazine Charlie Hebdo following publication of the Muhammad cartoons, values collided. The republication of the cartoons by others in the name of press freedom added fuel to the extremists’ fire.
However, my colleague and I were satisfied that, in a general sense, proximity has a moderating effect on news media coverage.
And it operates beyond news reportage. It is also evident in interactions between media and government agencies in relation to terrorist actions within their borders.
During the Martin Place siege in Sydney, media ensured the gunman’s attempts to secure media attention and make demands were unsuccessful:
- Calls claiming to be from hostages were not put to air;
- Inflammatory callers to talkback radio stations were taken off air by radio hosts;
- Media contacted by the gunman or hostages sought police guidance before responding;
- The gunman’s posts on social media were not repeated in mainstream media.
- And media took care to avoid revealing police tactics during live coverage at the scene.
Of course, the gunman, Man Haron Monis, died in the police assault on the Lindt Café. The perpetrator of the Christchurch mosque shootings, on the other hand, was brought to justice.
Dutch security and terrorism researcher Professor Beatrice de Graaf has developed a typology of terrorism trials, based on the performative strategies that can be in play:
- A not-so-dramatic show
- A show run by the terrorists and their lawyers
- A show run by the executive and the prosecution
- A media show
- A performance of justice.
The institutional cooperation that took place in the planning for media coverage of Brenton Tarrant’s court appearances, in order to achieve the last of those typologies, is laid out in our second paper. We believe the processes were ground-breaking.
I wish to highlight two bodies that had fundamental impacts on the pre-trial process and facilitated the high degree of cooperation between the justice system and media to prevent the case becoming the sort of platform that was exploited by Norwegian terrorist Anders Behring Breivik (one of the Christchurch shooter’s role models) during his trial in 2012.
Breivik attempted to use the trial to push his idiosyncratic white supremacist views but the academic consensus is that he failed for a number of reasons, including the ability of the Norwegian people to read coverage of the proceedings that explained how justice was being done. His attempts to use the court as a platform were also subverted by his counsel’s attempt to argue an insanity plea.
The first body I wish to recognise in the Tarrant case is New Zealand’s Media Freedom Committee, which represents all mainstream press, broadcasting and online media outlets.
When I chaired the committee almost two decades ago, I led discussions with police and security services to develop a set of protocols for engagement between senior media executives and government agencies in the event of terrorist and national security events. It was in force when the Christchurch attacks took place and committed both sides to enter into and maintain high level dialogue at the earliest opportunity through to the resolution of the event.
It set out protocols for dealing with various aspects of a terrorist event, including efforts by terrorists to contact media (which Tarrant attempted in the lead-up to the attacks). It recognised that editorial control stayed in the hands of editors.
Apart from one fleeting use of a short segment of the initial part of the live stream, New Zealand media concentrated wholly on the victims. However, the protocol has been updated to include provisions relating to live-streaming via the Internet.
Two months after the attacks, the five core media organisations represented on the Media Freedom Committee decided to limit their reporting of the impending trial to prevent dissemination of the perpetrator’s white supremacist beliefs and the re-traumatising of victims and their families. Court officials were shown the guidelines and made one suggestion – that only senior reporters would cover the proceedings – before they were made public.
It is important to note that this committee communicates in two directions – with government agencies and with member organisations. This facilitated rapid decision-making despite the fact that Covid imposed restrictions on newsrooms. Two of its representatives, including its current chair, played leading liaison roles in the planning for the Tarrant trial then during the sentencing hearing.
The other body that played a significant role in those processes is the Media and Courts Committee, made up of five judges, two officials and six senior media executives. Its genesis lay in discussions over the introduction of cameras in court during the 1990s. Established in 2001, the committee has overseen the preparation of comprehensive guidelines for media in-court coverage. It provides an informal forum in which issues of concern to either party can be aired and resolved. It is fair to say it has the capacity to handle robust discussion.
Its current chair, High Court Justice Simon Moore, sees the committee – and its evolution over more than two decades – as central to the building of trust between media and the justice system in this country.
Members of this committee played a pivotal role in overcoming inherent tensions in planning for what was initially to be a lengthy trial. These were proceedings that:
- Needed to balance the rights of the accused against retraumatising of victims,
- Potentially challenged principles of open justice, and
- Carried the potential both for misappropriation by white supremacists, and flouting of court orders by media situated outside the jurisdiction of the New Zealand court.
These challenges remained after Tarrant changed his plea to guilty.
Of course, the trial-then-sentencing judge, Justice Cameron Mander, had jurisdiction over his own court but it was clear to us that his decisions relating to media coverage – set out in a series of minutes before the hearing – had the benefit of not only significant input from a variety of state agencies but support from the senior media executives on the committee who were consulted by officials during the planning process. Those media executives were also briefed by police, victim support personnel, and a Muslim expert advisory group.
This last group assisted throughout the planning process and during proceedings. Measures were taken to ensure the needs of the Islamic faith were met. The court – and the media – were acutely aware of the potential for retraumatising victims and, indeed, the wider community.
I should say here that the relationship between media and the court was assisted in no small measure by the fact that the judiciary employed highly respected former journalists in media liaison roles and one – Cate Brett – sat on the Media and Courts Committee.
A combination of trust and the proximity filter led New Zealand media to accept conditions on coverage that were possibly unprecedented, including limited reporting ‘windows’. Their foreign counterparts, through innovative registration and distribution systems, had to accept the same conditions.
I believe that the Hobson’s Choice dilemma over coverage of terrorism played a part. These arrangements tipped the balance away from media serving the terrorist’s ends.
And I might also add that media executives are much more open to solutions on which they have been consulted than to those that have been unilaterally imposed.
Our second paper stopped short of presenting the Tarrant case as a complete model to prevent misappropriation of proceedings by extremist defendants or, indeed, by retraumatised victims in court. A lengthy trial may have exposed unanticipated issues. We did say it provided “a starting point and some robust suggestions”. We were being cautious.
Could the model work on the other side of the Tasman? The relationship between Australian media and the courts may at times have been tense. We instance the case against the late Cardinal Pell in our paper. (Australian journalist Michael Bachelard from The Age will be discussing this in the media session). That tension may be why we found relationships between judges and the media in Australia tended to be at the court reporter level but in New Zealand they also existed at the senior editorial executive and institutional levels.
On both sides of the Tasman, journalists – who perceive their role as providing a check on power – are sensitive to attempts to control their activities, whether it be by government, the judiciary, or illegitimate agents. They bridle at the very suggestions of prior restraint and are not averse to criticising the courts.
However, the drivers I have spoken about today – proximity and a strong aversion to becoming a terrorist’s pawn – are powerful influences. I believe they could be used to draw both sides into a dialogue.
Australia’s federal and state judicial structure complicates that dialogue. However, concentrated media ownership crosses state boundaries and judges and magistrates have their own collective organisation in the Australian Judicial Officers Association. Could it invite the major Australian publishers and broadcasters to discuss coverage of future proceedings against terrorists? Perhaps the Australia-New Zealand Counter-Terrorism Committee (the primary forum for developing and coordinating approaches to countering terrorism, and which emphasises interoperability across jurisdictions) could be asked to bring the parties together.
Denying oxygen to those who create propaganda of the deed on home soil is an inducement to sit around the table. It might also lead to an enduring forum – with a wider brief – for the judiciary and the media.
 Ellis, Gavin, and Denis Muller 2019. “The Proximity Filter: The effect of distance on media coverage of the Christchurch mosque attacks” Kōtuitui: New Zealand Journal of Social Sciences Online, 15(2) 332-348
 Ellis, Gavin, and Denis Muller 2022. Justice, the media, and the Christchurch mosque terrorist NZLJ [2022 Sept-Dec] 265-270, 300-304, 336-357, 378-384.
 I acknowledge the convention on limiting use of the name of the person convicted of the Christchurch attacks. His name is used here only in connection with his court appearances. That approach recognises that there was no suppression of the name of the accused. Media minimised its use in other contexts but reported his name in relation to court appearances to avoid de facto suppression that was at odds with the position of the court. A similar approach is used here.
 Kassel, Whitney 2009. “Terrorism and the International Anarchist Movement of the Late Nineteenth and Early Twentieth Centuries”, Studies in Conﬂict & Terrorism 32 (3), 237–252.
 Van de Meer, Bram 2015. “The Assassination of Empress Elisabeth of Austria: An investigative psychological analysis of lone-actor terrorism”, Journal of Threat Assessment and Management 2 (3-4) 176-186.
 Weimann, Gabriel 2008. “The Psychology of Mass-Mediated Terrorism”, American Behavioral Scientist 52 (1) 69-86.
 Commonwealth of Australia 2015, Martin Place Siege: Joint Commonwealth – New South Wales review, Canberra,
 Ivanic, Ria, Tom Kirchmaier & Stephen Machin 2019. “Jihadi Attacks, Media and Local Hate Crime”, Centre for Economic Performance: Discussion Paper No 1615 April 2019.
 Jenkins, Joy and Edson Tandoc 2017. “Journalism Under Attack: The Charlie Hebdo covers and reconsideration of journalistic norms”, Journalism 20 (9).
 De Graaf, Beatrice 2011. “Terrorists on Trial: A performative perspective”, International Centre for Couner–Terrorism – The Hague (Expert Meeting Paper).
 Bangstad, Sindre 2017. “Norway: A Lack of Reckoning?” in Anna Maria Kellner (ed) Democracy and Terrorism – Experiences in Coping with Terror Attacks. Friedrich-Ebert-Stiftung, Bonn.
 The conditions governing media coverage were set out in a minute by Justice Mander on 2 August 2020 (https://www.courtsofnz.govt.nz/assets/cases/r-v-tarrant/R-v-Tarrant-20200806.pdf)