The Cone Of Silence


Strong shield laws enhance the free flow of information — and overdue changes to the legislation pertaining to journalists’ privilege in Australia mean that both journalists and their sources will be better protected.

Traditionally, Australian journalists have had no compelling legal grounds to refuse to identify their confidential sources when called to give evidence in court. But the Evidence Amendment (Journalists’ Privilege) Bill 2010 (pdf) represents a radical departure from the status quo in two important ways.

Firstly, journalists will no longer be at the mercy of judicial discretion. The new shield laws recognise the importance of confidential sources to freedom of the press by introducing a rebuttable presumption in favour of source protection. Journalists and their employers will be able to claim the privilege, rather than apply for it, and it will be up to the other party to explain why disclosure was necessary.

Secondly, the new laws introduce a broad definition of the term "journalist" — potentially extending the shield beyond the busy newsrooms of the institutional media to include bloggers and even citizen journalists.

Protecting the anonymity of confidential sources is enshrined in the journalists’ code of ethics: "where confidences are accepted, respect them in all circumstances."

Journalists make promises of confidentiality in order to access and report sensitive information. Typically, however, Australian courts have refused to recognise journalists’ ethical obligations to their sources. A long line of case law reflects a reluctance to recognise that the public interest in confidential disclosure and the free flow of information is commensurate to the public interest in the administration of justice. Australian courts have even described the code of ethics as a "fiction" and a "mischievous instrument".

This tension has left some journalists in the unenviable position of having to break their ethical undertakings or face fines or imprisonment for contempt of court. They usually cop the punishment.

The best known example is that of Herald Sun journalists Michael Harvey and Gerard McManus. They were fined $7000 each in 2007 after refusing to give evidence that would identify the source behind a story which exposed the government’s decision to reject an increase in war veterans’ entitlements. The judge in that case made his position clear: "The judges are required by the law to administer the law and if that law is to be changed, as the journalists would have it, then their plea must be to the legislature."

And that is why the new shield laws are so important: they remind courts that the free flow of information is paramount.

The idea of a rebuttable presumption in favour of journalists is not new. It was raised more than 15 years ago in a Senate Standing Committee on Legal and Constitutional Affairs report entitled "Off the Record: Shield Laws for Journalists Confidential Sources". Attorney-General Robert McClelland now agrees that such an arrangement strikes an "appropriate balance" between competing public interests.

These new laws are an improvement — but they may still be applied narrowly and provide a thinner shield than expected.

Under the proposal, the presumption in favour of source protection can only be rebutted on public interest grounds, where the public interest in knowing the identity of the source is deemed to outweigh both the risk of harm to the source (or any other person) and the competing interest in freedom of the press. How willing will the courts be to order journalists to identify their sources?

Another area where judicial interpretation will come into play is on the point of whether the person claiming the privilege is a journalist or not. Indeed, the difficulty of defining just what a "journalist" is has been used to argue against journalists’ privilege. Debate continues in Australia about whether bloggers and citizen journalists should be protected.

The original amendments to the Evidence Act defined a journalist as: "a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium." This definition relied on the employment status of the journalist, effectively limiting the scope of the protection to journalists employed by mainstream news institutions.

This definition misses the mark. It fails to take into account the changing nature of the media and the blurring of the lines between news consumers and news producers. Not all journalists work for professional organisations — and many do not get paid.

Amendments tabled by the Greens last week replaced this narrow employment requirement with "a person who is engaged and active in the publication of news".

This altered definition is far more inclusive and appropriate. After all, the purpose of shield laws is not to protect journalists themselves; it is to promote the free flow of information. This can take place in any medium. It can be practiced by unpaid bloggers and by newspaper staffers. The protection shouldn’t turn on who the journalist in question works for but rather whether or not they were engaged in the publication of news.

The Greens’ amendment potentially extends the privilege to bloggers, freelance journalists, students or even citizen journalists. It will still be up to the courts, however, to decide exactly what "engaged and active" means. Do you need to break news on a regular basis? How often do you need to publish? Do you need to have worked as a journalist before? Again, there is scope for the definition to be construed narrowly.

Shield laws rarely extend as far as some journalists want them to. In most jurisdictions they do not provide an absolute guarantee of confidentiality. Journalists’ undertakings to their sources, however, are almost always absolute. So long as this discrepancy continues, there will be tension between the media and the courts. Shield laws recognise the role journalists play in keeping the public informed. Sturdier protection of the confidential relationship between journalists and their sources can only enhance free speech.


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