The Protection of Confidential Sources in Australia Part 1: Backgrounder
There is no doubt that confidential sources are essential to journalism. Through the promise of confidentiality journalists obtain off-the-record information and disseminate it in the public domain, thereby fulfilling their role as watchdogs ensuring democratic accountability. Without this promise countless stories would go untold, ensuring an uninformed public and a profession little more than a public relations machine. Bonny Symons-Brown explores the current legal protections for journalists' confidential sources in Australia in this three-part series.
While press freedom is not enshrined in Australia's Constitution or in a Bill of Rights, Australian journalists’ are bound by their Code of Ethics which states "Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances." While the Code binds journalists morally and ethically, it is not recognised as legally binding in a court of law. This legal/moral inconsistency has led to a conflict of interest in the name of ‘the public right to know’: On one hand, the public has a vested interest in open justice and the right to fair trail, on the other they are concerned with the proliferation and free flow of information which keeps them informed.
As a result of this conflict Australian and international journalists have been charged, fined and jailed for refusing to name their confidential sources. While reform that allowed journalists to reveal sources at their discretion would have its benefits, absolute privilege is not without problems.
Journalists' professional privilege does not receive consistent treatment under Australian law. Before 1989 journalists’ interests seldom came into conflict with the court. Judges exercised discretion when dealing with confidential sources and out-of-court settlement was common. When cases were contested some newspapers even resorted to giving up possible defamation defenses in order to keep sources confidential. In Cojuangco’s case (1988), the Sydney Morning Herald kept their journalist out of the witness box in order to avoid questions regarding his confidential source but in doing so scarified a possible qualified privilege defamation defence. After a spate of high-profile cases involving confidential sources, the Senate Standing Committee on Legal and Constitutional Affairs launched an enquiry into “the rights and obligations of the media, with particular reference to (b) the need for journalists to protect the identity of their sources of information." The Committee found “the goaling (sic) or fining of journalists acting according to their conscience has demonstrated that the current law has failed to adequately deal with and guide the balancing of the demands of the public interest in a fearless press serving the community’s right to freedom of communication and the demands of the public interest in the proper administration of justice."
Their report, released in 1994 was a turning point for this area of reform. The following year the Commonwealth and the New South Wales governments acted upon the recommendations of the Australian Law Reform Commission (ALRC) and adopted almost identical Evidence Acts 1995 (Cth) and (NSW) which address the notion of professional privilege. The same year the Standing Committee of Attorneys-General announced their support for such uniform legislation to be adopted across Australia. In 2001 Tasmania passed essentially identical legislation, as did Norfolk Island in 2004. Victoria, Queensland, Western Australia and the Northern Territory have all put the uniform Evidence Act on the legislative agenda and in the ACT the Commonwealth Act applies by agreement. South Australian law was amended in 1999 to provide more protection for professional confidentiality; however no provisions directly applicable to journalists’ were introduced.
To the detriment of uniformity but the benefit of journalists, NSW further amended its Evidence Act in 1997 and is now the only jurisdiction with a Professional Confidential Relationships Privilege. This is a qualified privilege that allows judicial discretion when deciding whether or not to compel a journalist to reveal their source. If a court finds that disclosure of the sources identity would result in their likely harm, and that harm outweighs the desirability of the evidence being revealed, they must not order the confidential communication be revealed.
In July 2004 these reforms were reassessed by the ALRC (in conjunction with NSW and VIC Law Reform Commissions) and privilege was again at issue. "The Commissions recommend that a modified version of the NSW provisions, which extend a qualified privilege to such communications, be adopted." So far these recommendations have not been implemented, but their mere existence is certainly encouraging for the Australian media.
Have Your Say: Is the current situation satisfactory? Even if all states and territories adopt provisions like that of NSW, will they go far enough?
Check back soon for Part 2 where we assess the main options for reform.
Image copyright of Hasbro Inc.
While press freedom is not enshrined in Australia's Constitution or in a Bill of Rights, Australian journalists’ are bound by their Code of Ethics which states "Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances." While the Code binds journalists morally and ethically, it is not recognised as legally binding in a court of law. This legal/moral inconsistency has led to a conflict of interest in the name of ‘the public right to know’: On one hand, the public has a vested interest in open justice and the right to fair trail, on the other they are concerned with the proliferation and free flow of information which keeps them informed.
As a result of this conflict Australian and international journalists have been charged, fined and jailed for refusing to name their confidential sources. While reform that allowed journalists to reveal sources at their discretion would have its benefits, absolute privilege is not without problems.
Journalists' professional privilege does not receive consistent treatment under Australian law. Before 1989 journalists’ interests seldom came into conflict with the court. Judges exercised discretion when dealing with confidential sources and out-of-court settlement was common. When cases were contested some newspapers even resorted to giving up possible defamation defenses in order to keep sources confidential. In Cojuangco’s case (1988), the Sydney Morning Herald kept their journalist out of the witness box in order to avoid questions regarding his confidential source but in doing so scarified a possible qualified privilege defamation defence. After a spate of high-profile cases involving confidential sources, the Senate Standing Committee on Legal and Constitutional Affairs launched an enquiry into “the rights and obligations of the media, with particular reference to (b) the need for journalists to protect the identity of their sources of information." The Committee found “the goaling (sic) or fining of journalists acting according to their conscience has demonstrated that the current law has failed to adequately deal with and guide the balancing of the demands of the public interest in a fearless press serving the community’s right to freedom of communication and the demands of the public interest in the proper administration of justice."
Their report, released in 1994 was a turning point for this area of reform. The following year the Commonwealth and the New South Wales governments acted upon the recommendations of the Australian Law Reform Commission (ALRC) and adopted almost identical Evidence Acts 1995 (Cth) and (NSW) which address the notion of professional privilege. The same year the Standing Committee of Attorneys-General announced their support for such uniform legislation to be adopted across Australia. In 2001 Tasmania passed essentially identical legislation, as did Norfolk Island in 2004. Victoria, Queensland, Western Australia and the Northern Territory have all put the uniform Evidence Act on the legislative agenda and in the ACT the Commonwealth Act applies by agreement. South Australian law was amended in 1999 to provide more protection for professional confidentiality; however no provisions directly applicable to journalists’ were introduced.
To the detriment of uniformity but the benefit of journalists, NSW further amended its Evidence Act in 1997 and is now the only jurisdiction with a Professional Confidential Relationships Privilege. This is a qualified privilege that allows judicial discretion when deciding whether or not to compel a journalist to reveal their source. If a court finds that disclosure of the sources identity would result in their likely harm, and that harm outweighs the desirability of the evidence being revealed, they must not order the confidential communication be revealed.
In July 2004 these reforms were reassessed by the ALRC (in conjunction with NSW and VIC Law Reform Commissions) and privilege was again at issue. "The Commissions recommend that a modified version of the NSW provisions, which extend a qualified privilege to such communications, be adopted." So far these recommendations have not been implemented, but their mere existence is certainly encouraging for the Australian media.
Have Your Say: Is the current situation satisfactory? Even if all states and territories adopt provisions like that of NSW, will they go far enough?
Check back soon for Part 2 where we assess the main options for reform.
Image copyright of Hasbro Inc.
posted by Sydney PEN at 12:36 am
1 Comments:
The problem with the NSW Evidence Act ammendments for journalists is that the Act still leaves the decision up to the judges descretion whether to reveal a source or not. If a journalist promises to keep a source confidential they are bound by that promise. I suppose that is within reason and depending on the journalists' own conscience. Journalists should always be careful about making promises of confidentiality bu once made then they must be respected.
It seems like a situation that will be forever unresolved.
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