With five journalists currently facing court and potential jail time for refusing to reveal their sources, journalists across Australia are increasingly concerned about the limitations of existing shield laws. The shield laws that have recently come into place in some jurisdictions are intended to protect journalists from being forced to reveal their sources.
Shield laws are an expression of journalists’ privilege which allow journalists to protect the confidentiality of their sources. The European Court of Human Rights explains the importance of this protection as follows:
“The protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected.”
Shield laws protecting journalists were introduced federally in 2011. This was followed by legislation in NSW and Victoria extending the same coverage to state-based areas not encompassed by the federal laws. The NSW shield laws came in only after a Greens private members bill was tabled that would have extended the protection to bloggers and other citizen journalists.
If shield laws are already in place many people are asking why they need to be extended? Proceedings in the Supreme Court in early 2011 highlighted the need for law reform in this area, when Fairfax journalists Linton Besser and Dylan Welch broke a story raising real issues about the governance and oversight of the NSW Crime Commission. The Crime Commission had been seeking court orders to prevent the Police Integrity Commission (PIC) from holding public hearings into its practices and procedures for asset seizures.
The Crime Commission's lawyers responded by issuing subpoenas effectively demanding the journalists give up their sources, because the Crime Commission suspected that someone inside the PIC had provided information to the journalists.
Public outrage and critical comment in the NSW Parliament led to the Crime Commission withdrawing the subpoenas. Nonetheless, the affair highlighted a significant gap in the law protecting journalists' confidential sources. Public concern and support in the NSW Parliamentary cross-benches eventually delivered law reform in NSW.
The present set of shield laws create a rebuttable presumption in favour of journalists that they are not compelled to reveal their confidential sources in most courts. The onus of overturning the presumption is on those seeking the information. The courts can only require journalists to give up their sources if they believe that there is a broader public interest in disclosing the material than there is in protecting the journalist privilege.
But protecting sources is only a small part of the puzzle. In the WA Supreme Court case between mining magnate Gina Rinehart and Fairfax journalist Adele Ferguson the Court is not considering protecting the source at all. Rinehart thinks she knows the source of confidential information provided to the journalist. She believes that name was disclosed in a book published by the journalist.
Having zeroed in on a name, Rinehart says the shield laws cannot prevent her subpoenaing all the information that passed between the journalist and that named person, because what is being sought is the details of the communication, not the identity of the source. If this argument is successful then it will expose the existing shield laws as little more than paper defences.
A core function of any news outlet is to hold the powerful interests, whether it is the government or a mining magnate, to account. This function is severely limited if a government is able to pierce journalists’ privilege by demanding that they reveal their sources.
Journalists need to be able to protect not only the identity of persons who give them confidential information, but also the content of that information. 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 off the hook.
But the holes in the shield laws are not limited to proceedings in courts. Public inquiries, such as those held by ICAC or a Royal Commission, typically have coercive powers and functions that exceed those of courts. This includes wide ranging powers to demand the production of documents. Yet none of the shield laws at either state or federal level apply to these commissions of inquiry.
It is particularly troubling when you realise that the two most high profile current inquiries: the NSW Commission of Inquiry into sexual abuse in the Hunter and the Commonwealth Royal Commission into child sexual abuse, only came about because of courageous independent journalists. Without the award winning work of Joanne McCarthy in the Newcastle Herald and Suzanne Smith on Lateline, both of whom at different times appear to have relied upon confidential sources, neither of these inquiries would have begun.
It would be a tragedy if the coercive powers of inquiries such as these were sued to force the production of journalists’ sources and destroyed the very confidence that was necessary to establish them in the first place.
As a motherhood statement all political parties say they accept that the media have a legitimate role in uncovering often difficult evidence and then using that to hold the powerful to account. But the real test of their commitment to this principle will be if they support the extension of shield laws beyond just sources and beyond the Courts.
It is time for all governments to urgently reform shield laws so that they protect journalists from revealing their sources and from betraying their confidences and to extend these protections to other coercive public inquiries. For all those politicians who say they believe in the principle of a free press, the time has come to put up the laws.
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