Journalists Can’t Be Forced to Reveal Their Sources, or Can They?

Press Freedoms and whistleblower protections have rightly been of concern of late. In June last year, the AFP conducted press raids on ABC and News Corp journalists. While Bernard Collaery and David McBride are both facing prosecution in closed courts for exposing government secrets.

And on the international stage, the US is attempting to extradite Julian Assange from the UK for ultimately unveiling a whole treasure-trove of the lies of Empire.

So, it’s somewhat surprising to find that at a time when mass surveillance is no longer simply a foreboding in the pages of an Orwell novel, that Australian governments in almost all jurisdictions have been passing laws to protect journalists from having to disclose their sources.

For these greater journalist protections we have to thank Gulf War whistleblower and current federal independent MP Andrew Wilkie, who introduced an ultimately successful 2011 private members bill, which enshrined a journalist’s right to protect informants in law.

The Wilkie push came on the back of a high-profile 2007 case involving News Corp journalists Michael Harvey and Gerard McManus, who were convicted of contempt of court and fined $7,000 each for not divulging their source in relation to an exposé on war veterans’ entitlements.

However, while conservative governments have overseen the enactment of these shield laws, in the meantime, the Abbott government managed to implement the national metadata retention scheme, which provides a very easy means for authorities to ascertain a reporter’s source.

From common law to statute

Prior to the Harvey and McManus convictions, three Australian journalists had served time over not revealing a source. The Australian’s Tony Barrass was gaoled for a week in 1989. The Courier Mail’s Joe Budd copped a week inside in 1992. And the ABC’s Chris Nicholls served 3 months in 1993.

Not only is it generally accepted that investigative journalists aren’t going to give up an informant, but the 1944 MEAA Journalist Code of Ethics outlines that information should always be attributable to a source, but in cases where anonymity is sought and it’s genuine, then this should be respected.

Prior to the passing of the Wilkie bill, there existed a common law protection known as the newspaper rule, with the authority on that principle being the 1998 High Court case John Fairfax and Sons versus Cojuangco.

The High Court explained that the common law practice meant that disclosure of a source was not required unless it was in the interest of justice. So, at the interlocutory stage or at trial the court would not compel disclosure unless it was deemed necessary “to do justice between the parties”.

Following the Harvey and McManus case, federal parliament passed a 2007 law mirroring the common law practice. It provided the courts with discretion not to require evidence be produced if it would compromise a confidant.

However, Wilkie’s law took journalist source protections one step further.

Journalists’ privilege

Wilkie’s 2011 Journalist Privilege Bill inserted provisions into the Evidence Act 1995 (Cth), which detail that a journalist or their employer are not compelled to give the identity of an informant if anonymity has been promised.

Thus, it establishes the right not to disclose, rather than leaving it to the discretion of a judge to determine whether this should be the case. A judge can still require a journalist give up their source, however an application must be submitted by a party of interest to overturn this protection.

The second part of section 126K of the Act states that following an application, a judge may require disclosure if satisfied that the public interest of this outweighs any likely adverse effect it could have on an informant or anyone else, as well as whether it would harm public interest in a free press.

In May 2011, NSW attorney general Greg Smith introduced a similar bill, which basically inserted the same provisions into this state’s Evidence Act 1995 (NSW). And just like its federal counterpart, the NSW legislation gained new definitions pertaining to the statutory journalists’ privilege.

Section 126J of both Acts defines an informant as someone “who gives information to a journalist” with the expectation it will be published, while a journalist is a person engaged in the profession, and a news medium disseminates news and observations to the public or a sector of the public.

In mid-2018, South Australia was the latest jurisdiction to pass similar laws. And this journalist source protection now appears in the evidence laws of every Australian jurisdiction, except for Queensland.

Shield laws in play

The Victorian government amended its Evidence Act in 2013 to include the journalist source protection. And it was first tested in the Victorian Supreme Court in 2015’s Madafferi versus The Age Company.

This case involved Melbourne grocer Antonio Madafferi suing The Age over a series of articles written by investigative journalist Nick McKenzie that alleged the plaintiff was the head of the city’s mafia. And Madafferi was also seeking the sources that McKenzie based these claims on.

The Age relied upon the newly created journalist shield laws to protect the sources. In deliberating, Justice John Dixon considered whether it was in the public interest to expose the sources, and also the alleged likely harm that would be perpetrated upon the informants if their names were released.

“I am persuaded that the defendants have established that an adverse effect for the sources from disclosure of their identity is likely,” Justice Dixon said. “I am satisfied that this consideration is deserving of significant weight against requiring the defendants to disclose their sources.”

Creeping surveillance

While Australian parliaments were legislating to protect journalists’ sources early last decade, then PM Tony Abbott and attorney general George Brandis were cooking up a scheme that would not only erode the rights of all but provide backdoor access to journalists’ sources.

The metadata retention regime came into effect in October 2015. It requires telcos to store all citizens’ metadata for a period of two years. This includes the time and date of calls, emails, texts and internet sessions. It can currently be accessed by 21 government agencies led by ASIO.

It was pointed out early on in its inception that this system could compromise journalists’ sources, so the government created a warrant system that law enforcement and security agencies must apply for prior to singling out a source of information for news reports.

However, it came to light in April 2017 that an Australian federal police officer sought and obtained the phone records of a journalist without a warrant. Then AFP commissioner Andrew Colvin put this down to “human error”.

So, it seems that while greater protections do stand for journalists who want to shield those who’ve blown the whistle, the Coalition has enacted a new way for authorities to accidently, and conveniently, reach in and pull an identity out of their hat.