Co-Operating With Authority

In his regular column, the Council's Chairman, Professor David Flint, discusses some ethical issues arising from media co-operation with the police.

After the Bondi Christmas Day riot, The Sydney Morning Herald phoned me to ask whether the practice of television stations handing over video footage to the police raised ethical issues for the media.

I said it did.

As the Herald reported (28 December 1995), I said the media had to be very careful in handing over material which had not been broadcast or printed.

The media are not, and more importantly must not be seen to be, a branch of the police. If they were, a side effect could be that photographers and journalists would become targets in future disturbances.

Serious as this would be, an even more serious result could be that, over time, the independence and objectivity of the media would be compromised.

Credibility

Journalists obviously have to maintain a distance from the police, indeed all authority, as well as their sources. Otherwise that most valuable asset - their credibility - would be at risk.

The flow of information from unofficial sources - often the most interesting and valuable - could slow down to a trickle. We would be left with little more than the official version of the news.

I am not saying the media should not co-operate with the police or with authority generally. Of course they should. And they do. Some examples are: broadcasting warnings about suspects, escapers and impending catastrophes. They may even temporarily withhold information, for instance about police preparation against terrorists, or a siege.

Sometimes they probably should not have co-operated, as when the British media agreed to embargo news about the impending abdication crisis in 1936. In contrast, the US media didn't co-operate with authority over the war in Vietnam, at least after they became aware of conflcting views on its justice.

Editor's choice

The decision whether to hand over material not published or broadcast is best left to the editor. He or she knows what is in the material, and is well informed about the context. As I pointed out on the Mike Jeffries program on radio 2GB, on the same day, I was not saying that the tele-vision stations had neglected these issues in the aftermath of the Bondi riot. Nor was I saying they should not have given the police access to the videos. Indeed, it was an occasion when many editors would feel it appropriate to give access. But the Bondi riot is an easy case. My point is that this case should not encourage the media to change the general principle of keeping authority at arm's length. We could well ask, with the benefit of hindsight, why the problem at Bondi was not anticipated, so that appropriate action could have been taken on the night rather than trying to take action later. The twin scourges have been around for years: the Christmas party which usually ends in a drunken spectacle with broken glass lingering for months; and the takeover of the streets as a raceway. They converged this year. Fortunately another ingredient was absent - warm weather. It could have been worse.

Complying with police

Why then shouldn't the media always comply with police requests to hand over material?

We could just as well ask why we shouldn't be subject to 24 hour electronic surveillance. This would be a disturbing trend and also probably unproductive. Yet, as Privacy Committee Chair, Chris Puplick, reports, more warrants were issued for bugging in New South Wales in 1993 than in the whole of the United States durting the same year!

A few examples of material which could be the subject of police requests for video tape, films or other material for identification (or even just surveillance) will illustrate my point.

• Police are instructed to prosecute people taking part in environmental or native title protests;
  
  
• the authorities decide to prosecute people who have blockaded the airport in anti-noise demonstrations;
  
  
• as a result of the Royal Commission, police decide to prosecute members of the public who attend some illegal but hitherto tolerated activities, eg gambling or prostitution - a news team has photographs or videos of people arriving or leaving which it was going to use only to expose a bagman who collected bribes at the premises;
  
  
• prosecutions by employers or the state are to be launched against striking unionists engaged in a picket; and
  
  
• it is alleged in Parliament by a morals crusader that people at some videoed sporting or social events are using some illegal substance. As a result of a death at a recent "rave" party the government insists the police take action.

In addition, police may be after copies of documents bearing identifying marks which could lead to whistleblowers and discourage potential whistleblowers. These could be about any issue of public interest, eg the real reason for Australia's military intervention in another country, or the proposed flight paths of a Badgerys Creek airport.

Material withheld

What should happen if the media comes to the conclusion that they should not hand over the requested material? Should the police have the right to search for and seize the material under a warrant?

We have seen an example recently where the police in Queensland, under a warrant, raided the offices of a journalist seeking to trace a whistleblower, who had kept the public informed about the lack of vigour in an investigation into alleged corruption. In NSW, the offices of two journalists were searched by police, seeking information on a source after the journalists exposed several corporations in apparent dispute with the Australian Tax Office.

The U.S. position

Obviously the police acting properly have a legitimate interest in obtaining documentary material from the media. The Americans, always intensely aware of the need to protect civil liberties, have reached a legislated compromise which restricts unauthorised searches for material to a narrow list of cases. These are where:

• here is probable cause to believe a reporter has committed a crime (publishing official secrets is not a crime in the US; it is proposed in Australia that this practice constitute the crime of secondary disclosure);
  
  
• there is reason to believe that seizure of the material is necessary to prevent an injury or death; or
  
  
• the material contains information relating to national defence, classified information or restricted data.

US police may also search for a leaked document not produced to a court in response to a subpoena. Alter-natively, they may undertake an unannounced search when they can demonstrate they have reason to believe a leaked document would be altered, destroyed or hidden if a subpoena were issued.

Of course, in any democratic society there will always be a tension - a healthy tension - between authority and the media.

There is then no simple answer to the question whether the media should co-operate with the police. Given that they know what is in the material they are holding, each case has to be decided by the editor, on its own merits.

As I suspect, there is also no simple answer to the problems which emerged at Christmas at Bondi and which tomorrow may emerge elsewhere.

David Flint

see also
Index on David Flint's material on the website

Return to APC News 1996 Index

[ return to top ]

Documents with the icon require the Acrobat Reader, a Free Utility from Adobe. Click here for more information.