Explainer: The journalist and shield laws

18 February 2014

Written by: Steinar Ellingsen

Journalists are faced with a serious ethical quandary when ordered by a court to reveal the identity of confidential sources.

It is a profession relying heavily upon its ability to extract information from people in order to produce news whilst also being permitted to keep the sources of such information privileged.

The Media Entertainment and Arts Alliance Journalists Code of Ethics until recently was the only guiding principle for journalists in a situation where they were being asked to reveal confidential sources.

Clause 3 of the Code states that “…where confidences are accepted, respect them in all circumstances”.

Whilst the clause is simplistic enough, many without a legal background do not realise that the code is merely a tool for guiding journalists in their work, and is not legally determinative.

One could not claim, “but I am acting in accordance with clause 3 of the code!” as a defence against a court order requiring a journalist to reveal their confidential sources.  Further, the consequences of refusing to reveal confidential sources are serious.

A journalist may be charged with contempt of court and potentially sent to prison.

Time for change?

In recent years it became clear that change was imminent particularly in light of high profile cases involving well-respected journalists who came under judicial pressure in the pursuit of their sources’ identity.  One example was the highly publicised conviction of two journalists, Michael Harvey and Gerard McManus, for contempt of court after refusing to reveal the names of sources that the pair used in publishing a story in the Herald Sun about war veterans’ entitlements.

The case was largely regarded as a serious impetus for change to the regulatory framework that was governing journalists as the law of the land and journalists’ own professional codes were expressly conflicting.

Internationally the importance of a journalist’s right to protecting their sources is highlighted by the European Court of Human Rights, which has said, “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”.

 

So what’s new?

There has been considerable legislative change throughout Australia in an attempt to establish laws that properly protect journalists whilst at the same time balance public interest considerations as to the need, in some circumstances, for sources to be revealed.

The Commonwealth Parliament enacted the Evidence Amendment (Journalists Privilege) Act 2010 in 2011. In practice the law establishes a presumption that a journalist is not required to reveal the identity of confidential sources.

Senior ABC lawyer, Grant McAveny, explained it best when he said that essentially “…the assumption is if you’ve given a promise of confidentiality and you’re a journalist, or the media organisation who employs the journalist, you’re entitled not to disclose that source”.

Victoria, New South Wales, Western Australia, Tasmania and the Australian Capital Territory all have varying degrees of legislative protection of journalists’ privilege, which are broadly similar to the federal equivalent (find out more detail about each state’s legislation here).

Queensland, South Australia and the Northern Territory do not have specific laws dealing with journalists and their sources.
Below are the links to key legislation in relation to the current state shield laws:

–       The Victorian Evidence Act

–       The New South Wales Evidence Act

–       The Western Australian Evidence Act

–       The Tasmanian Evidence Act

–       The Australian Capital Territory Evidence Act

 

But there is a proviso!

The protection is not absolute: a court may be able to reverse the presumption in favour of journalist privilege should it be satisfied that it is in the public interest for disclosure to be made. Pursuant to s 126H of the Commonwealth legislation, this public interest must outweigh:

–       any likely adverse effect of the disclosure on the source or any other person; and

–        the public interest in the communication of facts and opinion to the public by the news media and the ability of the news media to access sources of facts.

A shield for all?

Unlike the federal shield law, all state legislation limits the protection to ‘professional journalism’.

Media lawyer Veronica Scott of Minter Ellison explains that this is the “…only way to make it a strong privilege”.

This means that bloggers and anyone who may disseminate news on the Internet is not covered by state laws and may therefore be required to reveal their sources.

NSW Attorney-General Greg Smith controversially said that the federal law had the potential to cover people “…who can sometimes just be lunatics or people with very passionate agendas to push”.

 

Critique of the current regulatory framework

Criticism has been leveled at the lack of uniformity across Australia. In particular, there are concerns that aside from the Western Australia legislation, there is no list of criteria that a judge must adhere to when determining whether the public interest outweighs journalist privilege in any given set of circumstances.  This has been condemned due to the fact that “the exercise of judicial discretion will continue to haunt the application of the shield protection”.

It has also been suggested that uniformity will allow for all news producers to be covered by shield laws. This is important for bloggers and Internet users particularly in an era of increasing media convergence and the prevalence of ‘citizen journalism’.

There have been calls for the scope of shield laws to be increased so that public inquiries are covered as well as the judicial system to enhance a free press and to allow journalists to uphold their professional ethics in these situations.

 

Shield laws in action

The first judicial testing of federal shield laws came about during a court case which took place in July 2012. The Federal Court heard arguments as to whether News Limited reporter Steve Lewis would be required to produce material that might reveal his sources as a result of requests made by former speaker Peter Slipper’s legal team.

The court decided in favour of Mr. Lewis; he was not required to provide the requested documentation as it would have revealed his sources and was protected by the new federal shield law.

The journalist privilege is not absolute however and this was demonstrated by the 2012 case of Liu v The Age.

Helen Liu, a Chinese property developer, sued for defamation and also sought a court order to reveal the source of the defamatory information contained in the relevant publication.

Justice Lucy McCallum of the Supreme Court of New South Wales stressed that the right to protecting confidential sources could be overridden in the interests of justice.  The court ordered three Fairfax journalists to reveal the identity of sources used to publish their story.

Gary Linnell from the Age reacted angrily to the outcome saying “it’s a disgraceful decision and a giant step backward for the Australian public and their right to know” however the court

 

A “win” for journalism

In August last year the West Australian Supreme Court dismissed mining heiress Gina Rinehart’s case, which sought to force Steve Pennells from The West Australian to reveal his sources in relation to a story he had written about her family, in particular her son John Hancock. The outcome was seen as a legal victory for journalists whilst Mr. Pennells expressed his surprise at how ‘spectacularly’ the case had gone his way.

Justice Janine Pritchard labeled Mrs Rinehart’s request for the confidential sources “oppressive and an abuse of process” and that a disclosure of the evidence sought “would constitute a breach of a fundamental ethical obligation on Steve Pennells as a journalist [as he was] bound by an ethical obligation to respect and observe undertakings of confidence given to sources”.

 

Calls for unification?

The Federal Government announced last year that it would consider uniform national protection for journalists and their sources during the next Australian and state territory law and justice ministers’ meeting.

Megan Clark is a final year Bachelor of Laws and Bachelor of Media Studies student at La Trobe University. 

Featured image: Adapted from Justice and law (blue) by ElmA (Wikimedia Commons)