Journalists could be victims of Melbourne's crime underworld

It may be the messenger rather than the criminals who end up casualties of Melbourne's recent gangland killings.

Turning common sense on its head, Premier Steve Bracks vented his displeasure about the leaking of a secret police document. His target was not only the presumably corrupt police who leaked it but the ABC journalists who published a news story about it.

Unfortunately for the two identified in the document, police informers Terry Hodson and his wife, it was released to Melbourne's criminal milieu before it reached the desks of the ABC journalists. The Hodsons paid for this piece of police indiscretion with their lives. This, not those who revealed the incident, should be the focus of government angst.

Now Premier Bracks is searching for a scapegoat and the Victorian Ombudsman has briefed Tony Fitzgerald QC to investigate how the document found its way into Melbourne's murky and murderous underworld. Troubling for the media though, the Ombudsman has the power to compel the ABC journalists to disclose their confidential source - the person who leaked the document to them.

The issue may yet become a re-run of previous instances in which journalists refuse to disclose sources even though they risk jail for doing so if a judge finds them in contempt of court.

Time for a shield law

The incident reinforces the need for a "shield law" to protect journalists who choose not to disclose their sources to the courts and official enquiries.

Legal protection certainly has a place in a liberal democracy, given the news media's "fourth estate" role. Despite its failings and shortcomings, the news media should receive protection even though those charged with introducing it - our elected politicians - are sometimes victims of the same media.

A shield law has been on the agenda for years. In his column for the Australian Press Council, Professor David Flint wrote in 1996 that a 1981 UK shield law gave qualified protection for journalists in that country - the proviso being that the information provided by a source had no bearing on national security such that their exposure would be in the interest of justice. Despite this, in 1996 a UK journalist was forced to take his case for protection to Brussels under the European Convention on Human Rights, which found in his favour.

Australian journalists enjoy little by way of legal protection when it comes to protecting their sources, however in NSW in 1997 the state government gave judges the option of excluding evidence derived from confidential communications between professionals and their clients.

According to the Australian Press Council

 ...the court must not order that confidential communication be revealed if there is any likelihood of harm and the nature of this harm outweighs the desirability of having the evidence released. This provision has been of little use to journalists who are bound either by their union's code of ethics or their employer's codes of conduct to respect all confidences.

 ... journalists usually will get a sympathetic hearing in most courts during a defamation action where a plaintiff seeks to discover the identity of sources at interlocutory stages of the proceedings (the Newspaper Rule). There is no protection at trial, however, if a court rules that a journalist should reveal a source.