The Protection of Confidential Sources in Australia Part 2: The Main Options
When it comes to legislating on the sensitive subject of journalists' professional privilege, there are three main options: no privilege, absolute privilege and privilege qualified by structured discretion. In our second installment on the protection of confidential sources in Australia, Bonny Symons-Brown assesses the options.
No Privilege: this would assume that today’s laws satisfactorily address this issue. While journalists in NSW might receive some respite, in the rest of the country a lack of legal privilege for journalists’ sources equates to a chilling effect on the media. We will never know how many sources have failed to come forward with important information for fear of being revealed. Furthermore, as journalists are often nomadic people, profession privilege laws in Australia are unnecessarily inconsistent are should be standardised. The no privilege approach also fails to address issues like that raised in Barrass’s case (1989) where Perth journalist Tony Barrass received greater punishment for contempt than the defendant did when he was found guilty of breach of confidence.
Absolute Privilege: even before the legal implications of such legislation can be considered, the absolute privilege approach throws up one very big problem - one must first define a journalist. Unlike other professions that are afforded professional privilege (e.g. doctors, lawyers, priests), there is no standardised application/registration/qualification/membership process to become a journalist. Furthermore, as the 1994 Senate Standing Committee’s report on confidential sources noted, “the consequences of straying from proper standards in other occupations are much greater than is possible in relation to journalists.” While the report acknowledges the importance of reputation in the media, there are no official sanctions on journalists should they disregard their Code of Ethics. Under absolute protection, there is the potential for journalists to become lazy in their reporting, relying on confidential sources as primary informants (rather than corroborators) and even fabricating sources. Despite this, the Committee concluded that there was no evidence to support the notion that “a change in law will encourage fabrication where it would not have previously occurred”, and the need for journalists to attract their fellows respect was an adequate check on unscrupulous reporting. Journalists’ themselves would also need to adopt even more stringent controls of who they accept confidential information off, to avoid being duped.
The Australian Press Council is one advocate of absolute privilege. Submitting to the 2004 ALRC enquiry into the matter, they said “…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 journalists cannot be compelled to disclose confidential information in court.”
Similarly Edward Spence, a morals philosopher in the School of Communication at Charles Sturt University, says “laws that punish those who seek to protect the public interest are misguided laws that should be changed. At the very least they ought to be modified to offer protection to journalists who are only doing their job as instructed by the compass of a public moral conscience."
Privilege Qualified by Structured Discretion: Proponents of this option generally agree that revealing a source must be essential to the issue of the case (e.g. establishing guilt or innocence, protecting national security) and must take into consideration the impact revelation will have on the source. At the time of the Senate Standing Committee’s report this option was supported by the Law Reform Commission of Western Australia, The Nine Network, the Media Entertainment and Arts Alliance and The Communications Law Centre, however the Committee found felt the accountability and upstanding reputation of the media need to be ensured before legislation could proceed. While NSW is the only jurisdiction to have adopted this recommendation, the Australian Law Reform Commission released their latest report on Uniform Evidence Law in February 2006 and stated “Given the support expressed for the New South Wales provision, the Commissions argued it was in the interests of consistency and uniformity for the Commonwealth Act to adopt the New South Wales confidential communications provisions. The Commissions further proposed that this privilege apply to pre-trial discovery and the production of documents in response to a subpoena and non-curial contexts such as search warrants and notices to produce documents, as well as court proceedings.” The MEAA Online reports that “it’s expected a meeting of the Standing Committee of Attorneys-General in December will approve a uniform framework of shield laws, with legislation adopting the plan to be enacted in 2007.”
Have Your Say: Which option do you think is best?
Check back soon for Part 3 where we will review similar legislation internationally.
Absolute Privilege: even before the legal implications of such legislation can be considered, the absolute privilege approach throws up one very big problem - one must first define a journalist. Unlike other professions that are afforded professional privilege (e.g. doctors, lawyers, priests), there is no standardised application/registration/qualification/membership process to become a journalist. Furthermore, as the 1994 Senate Standing Committee’s report on confidential sources noted, “the consequences of straying from proper standards in other occupations are much greater than is possible in relation to journalists.” While the report acknowledges the importance of reputation in the media, there are no official sanctions on journalists should they disregard their Code of Ethics. Under absolute protection, there is the potential for journalists to become lazy in their reporting, relying on confidential sources as primary informants (rather than corroborators) and even fabricating sources. Despite this, the Committee concluded that there was no evidence to support the notion that “a change in law will encourage fabrication where it would not have previously occurred”, and the need for journalists to attract their fellows respect was an adequate check on unscrupulous reporting. Journalists’ themselves would also need to adopt even more stringent controls of who they accept confidential information off, to avoid being duped.
The Australian Press Council is one advocate of absolute privilege. Submitting to the 2004 ALRC enquiry into the matter, they said “…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 journalists cannot be compelled to disclose confidential information in court.”
Similarly Edward Spence, a morals philosopher in the School of Communication at Charles Sturt University, says “laws that punish those who seek to protect the public interest are misguided laws that should be changed. At the very least they ought to be modified to offer protection to journalists who are only doing their job as instructed by the compass of a public moral conscience."
Privilege Qualified by Structured Discretion: Proponents of this option generally agree that revealing a source must be essential to the issue of the case (e.g. establishing guilt or innocence, protecting national security) and must take into consideration the impact revelation will have on the source. At the time of the Senate Standing Committee’s report this option was supported by the Law Reform Commission of Western Australia, The Nine Network, the Media Entertainment and Arts Alliance and The Communications Law Centre, however the Committee found felt the accountability and upstanding reputation of the media need to be ensured before legislation could proceed. While NSW is the only jurisdiction to have adopted this recommendation, the Australian Law Reform Commission released their latest report on Uniform Evidence Law in February 2006 and stated “Given the support expressed for the New South Wales provision, the Commissions argued it was in the interests of consistency and uniformity for the Commonwealth Act to adopt the New South Wales confidential communications provisions. The Commissions further proposed that this privilege apply to pre-trial discovery and the production of documents in response to a subpoena and non-curial contexts such as search warrants and notices to produce documents, as well as court proceedings.” The MEAA Online reports that “it’s expected a meeting of the Standing Committee of Attorneys-General in December will approve a uniform framework of shield laws, with legislation adopting the plan to be enacted in 2007.”
Have Your Say: Which option do you think is best?
Check back soon for Part 3 where we will review similar legislation internationally.
posted by Sydney PEN at 6:03 pm
1 Comments:
I really think the only rational option is number 3. Admittedly it places a lot of power in the hands of judges but that's the entire reason we have them. If we can't trust our judiciary to make calls like this our society has far deeper problems than can be resolved by professional privelidge laws for journalists.
Absolute privilege places an awful lot of power in an unelected body that operates without legally, or even professionally, enforcable safeguards.
I'm sure that most established journalists are well above reproach. However, all it takes to call oneself "journalist" in this day and age is a little time on your hands and a free blogger account. Journalists used to be guaranteed a modicum of credibility by the fact that a large corporation had decided use their very expensive printing press to publish their work. While we have gained far more than we have lost, we still need to be realistic about our current environment.
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