Protection of journalists sources

A May 2007 letter to federal, state and territory Attorneys-General on the need for a stronger and more effective shield law for journalists

The Press Council is delighted with the decision of the Standing Committee of Attorneys-General to legislate for some protection for journalists who report well-founded but confidentially sourced information that authorities, or others, seek to keep from the public. Almost by definition such information is news. In a democracy, it is important that that sort of information be published in the public interest.

The Council's problem is that the proposal as it stands will be ineffectual.

Since amending legislation to give effect to the SCAG decision has not yet been passed into law in any jurisdiction, the Council is now writing to federal, state and territory Attorneys-General strongly advocating a revised approach.

A shield law based on the existing section of the NSW Evidence Act is too general to successfully protect journalist sources. The relevant clauses leave open what might happen. It merely says that judges 'may' take into account the desirability of not calling professionals (in this case, journalists) to reveal sources. Powerful advocacy by senior barristers of the need to put journalists in the dock will in the Council's view more often than not persuade judges to allow the messengers to be put in jeopardy. This will make them subject to contempt of court charges for failure to divulge sources, simply, in most cases, because the litigants are unwilling to do the work to unmask the sources. In short, the relevant clause in NSW Evidence Act is no real protection at all.

It is the possibility that journalists will be jailed for doing their job in making information available to the public, and then abiding by their ethical responsibilities to protect the confidentiality of their sources, that most disturbs the Council. And should disturb all those who believe that a free press is the best guarantee of a vibrant liberal democracy.

The consequences, if the ALRC recommendations are enacted, will be a further chilling effect on the flow of news. The unfinished case where the journalists Harvey and McManus have been found to be in Contempt of Court illustrates the problem. They wrote a story that was embarrassing to a Minister but there was no major breach of the law involved. They are awaiting sentence for failing to reveal a confidential source after the Crown Prosecutor called them in the preliminary stages of the trial of a public official. In the end their evidence was not required for the official's initial conviction.

A better solution than the NSW Act is needed urgently.

Around the world concern is growing. In the USA, where there is already the strong protection of free speech via the First Amendment, the House of Representatives is currently in process of passing a new law (the Free Flow of Information Bill) specifically to give much better protection for journalist sources and work-related material. The necessity for such a law, even given the First Amendment, for better sustenance of the vibrancy of American democracy, and the support for the legislation from both Republican and Democrat politicians, is discussed by Bree Nordenson in the Columbia Journalism Review May/June 2007. The relevance and force of the thinking is also evident in the fact that 33 American states, of different political persuasions, have passed similar shield laws.

In another comparative democracy, in December, 2006 the New Zealand Parliament passed a new Evidence Act that in Section 64 made protection of sources the default position from which courts can only move, in the interests of justice, in the most dire of circumstances. A copy of the relevant section is available for the Council office.

New Zealand and the USA feel the need to protect journalists from having to reveal confidential sources in most circumstances important enough to develop better laws. They have in fact come up with workable solutions to the difficult task of isolating those few extreme occasions that should require journalists sources to be identified in court situations (e.g., in extremis murder or terrorism cases or to prevent miscarriage of justice for individuals). They have done so while establishing a default position that courts should not allow legal fishing expeditions just because particular authorities are miffed that news the public has a right to know has been reported.

While the language of either proposal may not be the same as an Australian law would use, the Council believes that the US and New Zealand legislation both provide sound bases for a putative Australian shield law.

The Council has two reasons for making additional representation:

• the US and New Zealand legislation have emerged since the ALRC report and the commission may have found either to be a better solution that the extant NSW provision; and
   
• the obvious fact that once any common Australian form of shield legislation is passed it will be difficult to persuade all, or even some, Australian Attorneys-General to re-visit the topic.

The bottom line is that while legislation that protects the messengers (journalists) from being required to reveal sources in the courts is an essential element of our democracy, what has so far been agreed will not do that job. It will be ineffective.

The Council asks the SCAG to revise the proposed uniform national shield proposals to, in fact, protect journalists and keep them out of jail.

Ken McKinnon

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see also
Index page of material on protection of journalists' sources

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Freedom of the Press overview