Shield Laws: Australia’s press freedom failure

By Thomas Kelsall and Kelly Hughes | @Thomas_Kelsall @KellyHughes96

For many, the strength of the press is the hallmark of a democratic society.

Oppressive regimes are characterised by their willingness to put a chokehold on the media and stifle the free flow of information, intimidating journalists with imprisonment and sometimes death.

While democratic countries like Australia do not threaten journalists in this way, the laws in place to protect the work they do are not without fault, and they face more subtle challenges when trying to hold power to account.

Powerful institutions and court rulings are only part of the uphill battle journalists face when reporting on issues of immense public interest.

Many journalists in Australia still face the threat of jail for protecting a source’s confidentiality, a product of Australia’s lax approach to ‘shield laws’.

What are shield laws?

Journalists’ ethics requires them to keep complete confidentiality of sources who wish to remain anonymous. The Media Entertainment and Arts Alliance (MEAA) detail this requirement in its code of ethics.

“Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.”

SA Labor MP and former reporter Jayne Stinson said a journalist’s reputation hinges on protecting confidential sources at all costs.

“When you’re a journalist and someone comes up to you saying we want you to give up your source, any journalist worth their salt would say no,” Ms Stinson said.

“That’s your ethics, that’s your stock in trade—once you break the trust of one person, how can anyone else trust you as a reporter?”

Lawyers, priests, and doctors are protected by a legal privilege administered by the court that allows them to exercise professional confidentiality.

However, journalists are not protected by these same privileges, and Australian common law provides very little protection for journalists who are compelled to identify a source in a court of law.  Those who refuse to reveal a source during a trial can be found guilty of contempt of court.

Shield laws give journalists this privilege, and although it is not unconditional, the court can only request such information if they are satisfied it is in the greater public interest.

 What do shield laws cover?

The Commonwealth shield law states if journalists promise complete confidentiality to an informant, neither journalist nor employer can be compelled to disclose the informant’s identity.

However, this only applies in federal courts and the ACT.

These shield laws are also the only ones that cover bloggers, whereas shield laws in other states only provide protections to recognised journalists, a growing grey area in the world of online media.

But the power remains with the court. If a court finds the public interest in the informant’s identity outweighs the importance of source protection, the legislation is overruled.

Differences between jurisdictions

There are serious issues with the ambiguity of the shield law legislation in Australia.

States are not uniform in their legislation, and there are no agreed criteria or set of rules a judge must adhere to when determining whether the information is in the public interest or not.

Although the Federal Government passed shield laws in 2011, there is no national constitutional right for the government to impose laws on states, meaning journalist protections vary between jurisdictions.

New South Wales was the first state to pass shield laws in September 2012. Western Australia, Victoria and Tasmania all promptly followed suit, and the national shield law legislation covers the Australian Capital Territory.

South Australia, Queensland, and the Northern Territory remain the only Australian jurisdictions with no shield law protections.

In the US, 41 states have shield laws, and 35 state court systems recognise the privilege of journalists to maintain confidentiality.

Law and Criminal Justice Professor Rick Sarre said the First Amendment to the US Constitution, which protects free speech, gives journalists a lot more freedom of expression without the need for specific legislation.

Other democracies are also proactive in protecting press freedom.

In the UK, the Contempt of Court Act (1981) states no journalist is guilty of contempt for refusing to disclose a source. This means British courts work under the presumption that journalists are not required to reveal confidential information; New Zealand operates under the same presumption.

Prominent European countries including Germany, Spain, Portugal, and Sweden have written into their constitution the privilege of journalists to protect their sources, while many other European democracies have specific laws protecting journalists from court orders to reveal their sources.

In addition to this, the European Court of Human Rights recognises a journalist’s privilege to withhold information received in confidence, with reference to Article 10 of the European Convention on Human Rights and Fundamental Freedoms.

Both sides of the debate

Australian journalists have been fighting for decades to protect their sources and honour their code of ethics, despite the legal repercussions.

The presence of overriding court decisions, private inquiries and investigative bodies with vested interests have hindered the process of gaining shield law protection in Australia.

Journalism lecturer Dr Ron Hoenig said the absence of shield laws in South Australia is a major detriment to the public interest.

“If you don’t have shield laws then you won’t have whistleblowers – if you don’t have whistleblowers you won’t have people who are providing information to the people on significant issues,” Dr Hoenig said.

“Journalists need to be able to protect their sources in order to get information which is necessary for the public. If you don’t have shield laws…you only have the stenography of public relations.”

The argument against shield law protection is the potential misuse of power by journalists.

Allowing journalists to withhold information could encourage unreliable sources or the fabrication of information.

Ms Stinson said this factor needs to be considered when assessing the need for shield laws in South Australia.

“You’ve got to be really careful because you don’t want to provide a blanket or a cover for people who are doing nefarious things to have a protection that maybe isn’t in the overall public interest,” Ms Stinson said.

“You don’t want a circumstance where you get some perverse outcomes that maybe aren’t in the community’s interest overall, so it is a really tricky one.”

Previous cases

Award-winning Four Corners reporter Chris Masters—who famously reported on corruption in the Queensland Police Department—routinely used anonymous whistleblowers to support his investigative journalism.

This put him in a number of court cases where the confidentiality of his sources was under threat.

“I have been under pressure to reveal sources, and equally judges on occasion have shown leniency. It can feel like a case by case proposition,” Mr Masters said.

“The justice system generally seems to view the news industry as a whole as undeserving of trust. But courts will on occasion demonstrate respect for an individual journalist’s position on source protection.”

Other journalists have not been so lucky.

In 1989, Tony Barrass, a journalist for The Australian, was jailed for a week in WA for refusing to reveal the identity of a source within the Australian Tax Office.

In 1992, Joe Budd of the Courier Mail was put behind bars for two weeks in Queensland for refusing to reveal a source in a defamation case.

In 1993, South Australian ABC reporter Chris Nicholls endured the most severe punishment handed down to an Australian journalist for protecting a source, spending three months in a maximum security prison cell with a convicted murderer.

In 2007, Herald Sun journalists Michael Harvey and Gerald McManus were both fined $7000 for protecting a whistleblower who exposed the Howard Government’s cuts to veteran entitlements.

When asked about the trial by reporters at the time, McManus said he would protect his source under all circumstances. 

“Protecting your source is paramount for any journalist, and I think that any other journalist in the country would have done the same thing that we did. Of course, we’d do it again…our reputation would have been shot,” Mr McManus said.

When a journalist is put on trial, it can be a very stressful and drawn out process. It has major consequences for both the journalist and their employer.

Mr Masters said defending his work in court is one of the hardest tasks he faced in his career.

“Only a small percentage of journalists face litigation. Those who do commonly describe the experience as draining,” Mr Masters said.

“Workloads remain undiminished, so reporters have to find time to attend to lawyer’s requests for statements, briefings etc.

“Few reporters now undergo cross-examination—the most grueling experience of my career. The amount of work involved in defending a story outstrips the effort put into creating it.”

Despite the history of reporters losing in court, outcomes in jurisdictions with recently instituted shield law protections have been promising.

In 2013, Australian journalist Steve Pennells was embroiled in an 18-month long court case against Australia’s richest woman Gina Rinehart. 

Mr Pennells was facing two years jail for refusing to reveal a source he used while writing a story about a Rinehart family fallout.

The court ruled in favour of Mr Pennells and his right to protect his source. West Australia’s introduction of shield laws 11 months earlier saved him from imprisonment.

Speaking to AM in 2013, Mr Pennells said it was a major win for journalism as a whole.

“This was the first test of WA’s shield laws, and not only has it come down in favour of me and of journalists, but it’s actually enshrined in the judgement some of the principles that we really…hold sacred in journalism,” Mr Pennells said.

Importance of Whistleblowers

Sources who leak classified documents and information to journalists do so to blow the whistle on governmental/corporate wrongdoing.

They leak this information to the media because they believe the public has been betrayed by those in power and the public interest is paramount.

Informants who have compromising information, such as classified documents, have little to gain and everything to use by going public.

Often they are in immense danger of severe legal repercussions and risk everything by going to the media.

Last week Richard Boyle, a former public servant for the Australian Tax Office (ATO),  was raided by the Australian Federal Police after speaking to Fairfax Media about alleged abuse of power by the ATO.

However, journalists also put themselves on the line to protect the identity of their sources and uphold their strong professional ethics. More often than not they are faced with similar risks and dangers that offer them little to no protection for their legal rights.

Future outlook

A quintessential part of a healthy and open democracy is a strong fourth estate. For press freedom to thrive, the free availability of information is crucial.

Without this, journalists will be unable to keep society informed on matters of public interest. Therefore, the public has a large stake in the protection of journalistc sources for a free flow of information to society.

The recently elected South Australian Government argues: “The public and journalists are being left behind in South Australia, without consistent protection to both journalists and their sources.”

The Marshall Government’s shield law legislation promises to “provide protection to journalistic sources by enabling suppression of their identities”.

Ms Stinson said she looks forward to reviewing any legislation put forward by the Liberals on the matter.

“I’d be very interested to see what goes forward. Obviously I’ll be considering it not just with a journalist’s cap because I’m not elected to be a journalist, I’m elected to represent people’s views in my community,” Ms Stinson said.

“I’ll also be looking at it in terms of weighing up good community outcomes, and weighing up what the impact would be on things like justice, the police being able to properly investigate…as well as the freedom of the press.”

In the meantime, news outlets will be less willing to risk litigation in a media marketplace with increasingly limited resources.

Mr Masters said publications will give less leeway to their reporters to investigate cases which could put them in legal trouble.

“Employers are disinclined to allow latitude, the commercial imperative outstrips editorial principle,” Mr Masters said.

“As media struggles for commercial viability, publishers lower their sights. My sense is the objective has shifted from constructing an effective defence to avoiding all chance of litigation.”

 

 

Image Courtesy: Matt Davidson/MEAA

 

Edited April 9 12:48pm

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