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.

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PEN mourns the death of Russian journalist Anna Politkovskaya

Sydney PEN would like to pay tribute to Russian journalist Anna Politkovskaya and express our deepest condolences in this terrible time to her family, friends, colleagues and Russian PEN. Anna was found shot dead in the elevator of her apartment in Moscow on Saturday 7th October 2006.

In response to the shocking murder, Reporters Sans Frontieres has launched a petition demanding the creation of an international commission of inquiry "to put an end to the impunity enjoyed by those who murder journalists in Russia." Twenty-One journalists have been murdered in Russia since Vladimir Putin became President in 2000, according to RSF. None of these murders have been solved. Sign the petition here.

A journalist who covered the war in Chechnya, Politkovskaya had been receiving threats since 1999 after she wrote articles claiming that the Russian armed forces had committed human rights abuses in Chechnya. Despite these threats she continued to write and in 2003 published A Dirty War: A Russian Reporter in Chechnya. She is also a co-contributor to A Small Corner of Hell: Dispatches from Chechnya, published in 2003. Her most recent book, Putin's War: Life in A Failing Democracy is to be published in paperback in December this year. Politkovskaya was a guest of the Sydney Writers' Festival in May this year and featured on the Sydney PEN panel, "State of the Word", with Prof George Williams, Hari Kunzru, Camilla Gibb, Hendrik Hertzberg and chaired by Sydney PEN's Katherine Thomson.

In 2002 Politkovskaya was one of the few outsiders allowed into the Moscow theatre in an attempt to negotiate with Chechen rebels the release of hundreds of hostages. In 2004, she fell seriously ill as she attempted to fly to Beslan to cover the hostage crisis there, leading to speculation that she had been deliberately poisoned to stop her from reporting on the crisis.

"Anna Politkovskaya is a courageous writer known for her criticism not only of the Chechen war but also of the totalitarian backlash characterising the latest developments in Russia. Her death raises serious concerns and confirms all the fears," said Jiri Grusa, President of International PEN.

"We protest in the strongest terms the situation in Russia that has allowed this to occur."

A murder investigation is now under way. Vitaly Yaroshevsky, deputy editor of the newspaper Novaya Gazeta for which Politkovskaya worked is certain that her murder is linked to her work, a view shared by Russian human rights observers. The Moscow deputy prosecutor has also told the press of that the possible link between her death and her journalism will be investigated.

Politkovskaya was the winner of numerous international awards for her courage, including the 2004 Olaf Palme Award that was set up by the family of the murdered Swedish prime minister. The prize was given to Politkovskaya to honour her work for the "long battle for human rights in Russia".

"Anna Politkovskaya's integrity and courage inspired writers around the world as she reported on the most difficult situations in Russia," said Joanne Leedom-Ackerman, International Secretary of International PEN. "She was an outspoken advocate for human rights in PEN's and other forums around the globe. International PEN mourns her loss and calls for a relentless investigation to bring to justice those who are responsible for her murder."

A video of Anna Politkovskaya's Sydney Writers Festival session on Putin's Russia (28/5/2006) can be found here.

Click here to read Sydney PEN President Angela Bowne's SC tribute to Anna Politkovskaya, read at the Sydney PEN commemoration of the Day of the Imprisoned Writer on November 12.

Photo Courtesy of Sydney PEN

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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.

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