Good Leaks, Bad Leaks


All Michael McKinnon from The Australian wanted to know from his Freedom of Information (FOI) request was the amount of extra tax collected from bracket creep and how wealthy Australians may have benefited from the Government’s first home owner’s scheme. Not what you would call a threat to national security. An embarrassment to the Government, perhaps.

The Treasurer Peter Costello issued a conclusive certificate (an order allowing ministers to deny FOI requests for documents they hold), and fought for four years all the way to the High Court to ensure the suppression of the information McKinnon wanted. According to Costello, it wasn’t in our interest to know. We don’t need to know everything about industrial or taxation reform either. FOI requests on those two issues have also been blocked by conclusive certificates.



Costello says there are no problems with the FOI regime and the way his Government has used it. He says that conclusive certificates have always been utilised by the government of the day to suppress information.

Johan Lidberg, who recently completed a PhD comparing Australia’s FOI regime with four other democracies, begs to differ. Lidberg believes Australia’s FOI regime is ‘completely dysfunctional.’

How does a journalist find out what the government is doing when it doesn’t want us to know? They file FOI requests and they talk to public servants. Sometimes they even talk to government politicians.

In early 2004 two Herald Sun journalists, Michael Harvey and Gerard McManus, embarrassed the Howard Government by reporting a Cabinet proposal to reject a $500 million boost to war veterans’ pensions. Although the proposal was scrapped, a Federal investigation into the leak was ordered. Cabinet must maintain some surety that its deliberations can be conducted in private, argued the Prime Minister.

After checking thousands of telephone extensions within the Department of Veteran Affairs and mobile phone records, a public servant, Desmond Kelly, was charged with the leak. When asked in court to identify Kelly as the source of the documents both Harvey and McManus refused, citing the Media Alliance Code of Ethics, which states that journalists must respect agreements of confidentiality ‘in all circumstances.’

The information leaked to the two journalists did not pose a threat to national security or to any individual, and despite the fact that there was enough evidence to convict Kelly without McManus and Harvey’s co-operation, the journalists were charged with contempt and are now facing possible jail terms.

There are no laws in Australia protecting journalistic privilege other than a section in the NSW Evidence Act that recognises relationships such as doctor/patient and journalist/source as having a special status worthy of some protection. While the final decision to demand disclosure of a source in NSW rests with the judge, the Act at least affords journalists in that State the ability to present an argument for why they should be afforded privilege. All well and good, but these protections, which were introduced in 1997, have never been tested.

Australian judges are aware of the journalists’ Code of Ethics and while they do not recognise it as having legal standing there is a ‘rule of practice’ in the legal system called the Newspaper Rule that allows the court the discretion to rule that a journalist need not disclose their source unless it is necessary to do so ‘in the interests of justice.’

Thanks to emo

In February the Australian Law Reform Commission (ALRC) recommended that a uniform and limited professional privilege for journalists, along the lines of the NSW laws, be applied across all Australian jurisdictions.

When Harvey and McManus were charged, Attorney General Philip Ruddock indicated that he thought a jail term was not appropriate and argued that, because the law is currently in a state of flux, the case against the journalists should be dropped.

But three weeks ago the Victorian Supreme Court ruled it would pursue the contempt charges.

While protections for journalists will be far from absolute under the changes proposed by the ALRC, which are expected to be enacted in 2007, they will need to be tested in the courts before we know their true value.

Regardless, much of their promise has already been negated by the new anti-terror legislation, which has had a serious impact on the ability of journalists to do their job.

Most of us are aware of the more obvious concerns under the anti-terror laws, such as possible five year jail terms in certain instances for journalists reporting information about terrorism suspects. We know that police have greater powers to obtain documents, including copies of a journalist’s notes and diaries, and that phone tap legislation gives security authorities access to journalists’ emails, text messages and to telephone conversations should they contact individuals suspected of association with terrorist activities. What is not widely recognised outside the media industry is that, under these laws, no journalist can offer (with certainty) their integrity and good name as a guarantee of protection.

It was hard enough to get a source to open up to you before this legislation, but with little jurisprudence and great uncertainty regarding how or when these laws will be used, it is a brave or is that foolish? soul who passes information on to a journalist.

Recently, two New York Times reporters revealed that the US Government was engaged in phone tapping without the relevant judicial warrants. In response it has been reported that a grand jury is investigating possible criminal prosecution not against the Government for illegal acts, but against the reporters, on the basis that the publication of the information threatened national security. The same threat exists here in Australia for journalists who might be charged under the anti-terrorism legislation for publishing information leaked to them.

Perhaps the most worrisome issue concerning reportage in Australia in the years to come will be self-censorship. In a climate of insecurity, where a journalist and their sources cannot know the ramifications of a private conversation or a story, there is a natural tendency toward caution. Just how much self-censorship will take place, and what we won’t be told, we will have no way of knowing.

The key role of the Fourth Estate is to inform, encourage scrutiny of government policy and hold governments accountable. The protection of confidential sources and the ability of journalists to access information and write critically on government policy are fundamental tenets of the checks and balances on power that must exist in a healthy, functioning democracy.

That we gave our government authority to rule on our behalf is undoubted. That we gave it authority to hide information simply because it is embarrassing is not.

This article was adapted from the Sydney PEN Session chaired by Denise Leith at the Brisbane Writers Festival on protection of journalists’ sources. The pane
llists were Mark Bowling (ABC), Michael Darian Smith (Mallesons), Michael Meadows (Griffith University) and Sarah Stewart (AFP in Malaysia).

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.