Journalists need to be able to protect their sources. If they can’t, critical sources of information will simply dry up — to the great detriment of public debate and accountability. It will let the powerful, especially our governments, off the hook.
This year proceedings before the Supreme Court have highlighted the need for changes to the law in this area.
In a long-running legal battle between government agencies, the NSW Crime Commission has been seeking orders to prevent the Police Integrity Commission (PIC) from holding public hearings into its practices and procedures for asset seizures. The PIC was attempting to investigate the way the Crime Commission had been cutting deals with organised crime figures in proceeds of crime seizure proceedings.
Linton Besser and Dylan Welch at the Sydney Morning Herald broke this story, raising real issues about the governance and oversight of the Crime Commission.
As they attempted to shut down the story, the Crime Commission’s lawyers issued subpoenas effectively demanding the journalists give up their sources — by providing their notes, their records and even their mobile phones and SIM cards. Why? The Crime Commission suspected that someone inside the PIC had provided information to the journalists.
Under the current law in NSW, the court’s decision about whether or not the journalists were required to divulge their sources would have been made without consideration of the broader public interest, that is, in allowing the media to hold the Government and its agencies to account.
Public outrage led to the Crime Commission withdrawing the subpoenas. Nonetheless, the affair highlighted a significant gap in the law insofar as the protection of confidential sources by journalists is concerned.
Things have been progressing more quickly at a Federal level than here in NSW.
In March this year the Evidence Amendment Bill (Commonwealth) 2011 passed through Federal parliament, giving some much needed protection to journalists and their sources in the form of a set of shield laws. Greens’ amendments to the Bill also saw the same protection extended to bloggers and independent media organisations.
However, while the shield laws give protection to journalists where they were being attacked under federal laws or in federal courts, they give no protection under state laws or in state courts. The Crime Commission proceedings were a case in point and showed that without state-based protection, the ability of journalists to undertake investigative work is seriously undermined.
The Greens NSW will be introducing legislation to NSW Parliament to give more comprehensive protection to journalists and their sources.
The Greens’ legislation will extend the protection beyond "conventional" journalists to include bloggers and online commentators. This is in line with the successful amendments made by Greens Senator Scott Ludlam to the Commonwealth laws.
For journalists, bloggers and online writers to be able to do their job, and to provide the public with information about the workings of government and other powerful interests in our society, they must have people willing to give them information on a confidential basis. Unless people can feel sure that journalists will not be compelled to divulge the source of their information, those sources of information will dry up and secrecy will prevail.
A core function of any news outlet is to hold the government of the day to account. This function is severely limited if a government is able to muzzle news reporters by demanding that they reveal their sources.
There is a concern that the O’Farrell Government will amend the legislation so that it only protects employed journalists and does not provide protection to the broader class of commentators and bloggers online.
The NSW Attorney-General Greg Smith is on record giving general support for shield laws but has expressed strong reservations about protections for bloggers. Smith concedes that some bloggers may have a relevant interest — but also asserts "some (bloggers) may be criminals doing some blogging to block or deflect police and to con politicians and the media".
Statements like this reveal that Smith has failed to come to terms with a changing media landscape. Reform is required, and that reform is the substance of the Evidence Amendment (Protection of Journalists’ Sources) Bill 2011 (pdf) that the Greens NSW will be moving in the next NSW Parliamentary sitting.
This bill will ensure the protection of journalists’ sources in proceedings in the Local Court, the District Court and the Supreme Court in New South Wales. It will create a rebuttable presumption in favour of protecting sources — and the onus of overturning the presumption will be on those seeking the information. The court will have discretion to make a decision based on the evidence provided and on broader conceptions of whether disclosure is in the public interest.
This legislation is a much needed companion to the Commonwealth shield laws to ensure that those wishing to hide the truth or control information cannot abuse the law to muzzle the media.
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