Protect sources or liberty will suffer

Let’s say you’re a journalist, and you’ve been phoned by someone who wants to meet you urgently about a threat to the life savings of thousands. She makes one condition - you keep her identity secret. You agree.

It turns out she works for a company which has been extremely successful in attracting deposits. This came from a sophisticated advertising campaign which claims it invests prudently but very successfully. She hands over an internal document which reveals its reckless speculation has made it almost insolvent.

So you phone the company’s managing director and ask whether the document is theirs. He asks you to come over and he’ll tell you everything. Once there, you’re served with a subpoena to produce the document. In an expedited court hearing you’re also asked to reveal your source. You refuse. Meanwhile an interim injunction has been granted to prevent publication.

This is not far fetched. A British journalist, Bill Goodwin, had a somewhat similar experience. After two appeals he was found guilty of contempt of court. Fined substantially, he could have been jailed.

He appealed to the European Court of Human Rights, which found in his favour. The Court said that if journalists in his position were not protected, sources might be deterred and the watchdog role of the press undermined. The losers would be the public.

When I was at the Press Council, I drew up a proposal for an Australian shield law to protect journalists’ sources. Now there are shield laws and there are shield laws. The bill currently before the Federal Parliament would probably not have protected Gerard McManus’ and Michael Harvey’s source who had revealed the rejection of a recommendation to increase veterans’ benefits by $500 million.

It certainly would not protect, and in fairness is not intended to protect, public servants like Allan Kessing, who gave the press a story about serious deficiencies in airport security. (This case shows the importance of having some alternative for whistleblowers before going to the press.)

The bill directs a judge to protect a source where the likely harm “outweighs the desirability of the evidence being given.” In this balancing exercise, the greatest weight has to be given to “any risk of prejudice to national security”.

But great weight should also be given to two other fundamental issues. These are whether the applicant can demonstrate that the information sought cannot be obtained by alternative means that are less destructive of freedom of speech and of the press and whether the applicant can demonstrate a truly compelling and over-riding interest in the information.

There is one crime which the McManus and Harvey case clearly demonstrates should be excluded from those where the court may remove the veil of protection. This is where the crime is no more than a breach of the Official Secrets Act, which makes it an absolute offence for a public servant to reveal any government secret, even a draft of a ministerial menu.

As to civil cases, a few years ago there was a flurry of applications to force journalists to reveal their sources in defamation cases. But in each of these the plaintiff could have usually obtained all the damages the law allows from the publisher. In my opinion, still wanting to know the identity of a source when a remedy is readily available suggests that revenge may be a motive, possibly even one which is extra-legal. I cannot see any justification in requiring journalists to reveal their bona fide sources in civil cases.

On the other hand, I think the media may need now to demonstrate they too are observing the best ethical practice. On this, the United Kingdom Hutton Inquiry revealed the growth - in the electronic media - of reliance, especially by celebrity journalists, on protected sources without any editorial intervention or even supervision.

Hutton concerned a BBC “one on one” interview, that is, where one journalist interviews another journalist. In this, Andrew Gilligan claimed that the Blair Government had probably known that a statement in a public document justifying the intervention in Iraq was untrue. Gilligan said this was based on a well placed confidential source, who turned out to be Dr David Kelly.

Kelly’s subsequent suicide forced the Blair Government to initiate the inquiry. But Gilligan, whose reliance on a confidential source had not been cleared by his program producer, later admitted that Kelly had said no such thing. Hutton was highly critical of the BBC for not insisting on proper editorial supervision.

US “best practice” requires that both the editor and the journalist know the identity of the source. As a precondition of the grant of statutory protection, it is reasonable to require that there should at least have been a separate editorial assessment of the proposed reliance on a confidential source. I am not suggesting that a court should review the quality of that assessment - that would involve an endless hearing - rather that a separate assessment should have taken place.

As the European Court pointed out, without legal protection, sources will not always come forward, and the public’s right to information will be reduced. We need strong statutes to ensure this, not only federal but also state and territory. There is no need for these to be uniform, just that each observe a minimum standard consistent with the free flow of information in our democracy.