Australian Press Council submission to the joint Australian Law Reform Commission, Victorian Law Reform Commission and NSW Law Reform Commission Review of the Uniform Evidence Acts

17 August 2005

Executive Summary

The Australian Press Council is concerned with protecting freedom of speech and of the press. The role of the media in ensuring that governments are accountable to the public is dependant on access to information, which in some instances may only be disclosed to journalists if the identify of the source can be kept confidential.

The only aspect of Discussion Paper 69 which is of obvious relevance to the Press Council's objectives is the proposal for the establishment of a professional confidential relationships privilege which would prevent journalists from being compelled to disclose the identity of confidential sources.

The Press Council endorses the proposal that a provision which would be the equivalent of Division 1A of the NSW Evidence Act 1995 be included in the Uniform Evidence Acts.

Submission

The Australian Press Council has, as one of its primary concerns, the protection and promotion of freedom of speech and of the press. A significant concomitant of such freedom is access to information. Without information, freedom of the press has little meaning. This fact is of particular consequence in relation to the reporting of government activity. The media has a crucial role in facilitating the accountability of government to the electorate. It is the role of the press to ensure that citizens are made aware of facts and issues which enable them to assess the performance of elected representatives.

But governments are not always cooperative in providing the press with information which gives an objective and complete picture of government activity, free from distortion. There are instances when such a complete picture can only be ascertained by relying on confidential sources. Such sources are often "whistleblowers" who have unique knowledge of the internal workings of organizations, knowledge which is invaluable to journalists seeking to keep these organizations accountable. In revealing this knowledge to a journalist, a whistleblower is often placing his or her own position, or even safety, in jeopardy. In most cases whistleblowers approach journalists only after they have exhausted all official channels available to them. Their revelations usually expose corrupt, illegal or questionable behaviour. The recent history of journalism is replete with examples where whistleblowers have risked their own interests in order to ensure that the public interest was served by exposing an organization to public scrutiny. Just two examples of this are police officers who cooperated with the ABC's Four Corners and The Courier Mail in exposing corruption in Queensland (which ultimately resulted in the Fitzgerald Inquiry) and nurses who have come forward in both New South Wales and Queensland to discuss high death rates in public hospitals.

Due to the risks being undertaken by whistleblowers, information is often made available to journalists only on condition that the identity of the source is kept confidential. The commitment to maintaining confidentiality in such circumstances is a longstanding tenet of journalistic ethics. This commitment recognizes the fact that whistleblowers are often reluctant to divulge information if disclosure is likely to result in damage to their career or safety. Failure by journalists to protect confidential sources would damage the professional relationship of trust between them and would discourage whistleblowers from coming forward to raise issues of public concern. The ability of journalists to protect the confidentiality of their sources is thus a crucial element in the process of democratic accountability and should be recognized by the law.

Where the law does not recognize the importance of confidentiality between journalists and their sources situations may arise where journalists are confronted with a dilemma - whether to divulge their source and thereby betray their ethical commitment, or to protect their source and in so doing break the law and risk a penalty. This dilemma has been clearly illustrated in the United States by the recent imprisonment of the New York Times journalist, Judith Miller, for refusing to disclose the identity of her informer, in relation to a putative story that would have addressed the question of a possible breach of the law by officials in the US administration. Two Australian journalists are facing a similar dilemma in a case currently before the Victorian County Court. In this case the issue was one of embarrassment to a Minister of the Crown, not the divulging of matters that could be regarded as secret or confidential in nature.

The Australian Press Council recognizes that there may be certain instances when it is in the public interest that confidential information be disclosed to a court or inquiry. However, the Press Council is of the view that it is important that formal recognition be given to the public interest in the protection of confidential relationships between journalists and their sources. One way of doing this is to ensure that journalists cannot be compelled to disclose confidential information in court.

In order to protect the relationship of confidentiality between journalists and their sources, the Australian Press Council endorses the proposal that the Uniform Evidence Acts should include a privilege for the protection of confidential information in relation to professional relationships. The Press Council proposes that a clause which is based on that set down in the Evidence Bill (New Zealand) be adopted for this purpose (see Appendix A). However, if such a clause is regarded as inappropriate , the Press Council supports the proposal put forward in DP69, that the Commonwealth Evidence Act should adopt a provision which is the equivalent of Division 1A of the NSW Evidence Act 1995.

Appendix A

Extract from Evidence Bill (New Zealand):

64 Protection of journalists' sources

1. If a journalist has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.
    
2. A Judge of the High Court may order that subsection (1) is not to apply if satisfied by a party to a civil or criminal proceeding that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs
   1. any likely adverse effect of the disclosure on the informant or any other person; and
   2. the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.
   
    
3. The Judge may make the order subject to any terms and conditions that the Judge thinks appropriate.
    
4. This section does not affect the power or authority of the House of Representatives.
    
5. In this section
   • informant means a person who gives information to a journalist in the normal course of the journalist's work in the expectation that the information may be published in a news medium
      
   • journalist means a person who in the normal course of that person's work may be given information by an informant in the expectation that the information may be published in a news medium
      
   • news medium means a medium for the dissemination to the public or a section of the public of news and observations on news
      
   • public interest in the disclosure of evidence includes, in a criminal proceeding, the defendant's right to present an effective defence.

Explanatory Note ...

Confidentiality

Clause 64 protects the identity of the sources of journalists in cases where journalists promise not to disclose their identity. The starting point is that the journalist cannot be compelled to reveal the identity of the source. However, a Judge of the High Court may order that the identity be revealed if satisfied that the public interest in doing this outweighs any likely adverse effect on the source or others as well as the public interest in the ability of the news media to communicate facts and opinions to the public.

See also
Index of material on courts and contempt

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