The assertion of a journalistic privilege that is similar to the
professional privilege enjoyed by physicians and attorneys concerning
communications with clients (sources, in the case of reporters) is
problematic everywhere. There is no general protection for journalists
who choose to withhold information from governmental investigators.
Some jurisdictions do recognize a limited right to protect sources.
AUSTRALIA
The Media and the Law
http://www.presscouncil.org.au/pcsite/fop/auspres.html
"19. Protection of sources
With one exception, Australian law does not specifically protect the
confidentiality of journalists' sources. The code of ethics of the
Australian Journalists' Association, however, states: "In all
circumstances the [journalists] shall respect all confidences received
in the course of their calling."
In late 1997, New South Wales enacted the Evidence Amendment
(Confidential Communications) Act which amended that state's Evidence
Act to allow judges to exclude evidence of confidential communications
between professionals and their clients. 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 new rule has yet to be tested in the
courts.
Journalists have not been able generally to claim professional
privilege to avoid disclosing their source of information if they are
called before courts, Royal Commissions or parliamentary inquiries.
Tony Barrass was imprisoned and ultimately fined in a Western
Australian case in 1989-1990 (DPP v. Luders, unreported, District
Court of WA No. 177 of 1990). In March 1992, Joe Budd was jailed for
failure to disclose his sources for a story which had resulted in a
defamation suit against the Brisbane Courier-Mail. There were four
cases in 1993: In South Australia, Advertiser journalist David Hellaby
was fined and the ABC's Chris Nicholls jailed for separate breaches.
In NSW, Deborah Cornwall, then with The Sydney Morning Herald, was
ordered to perform community service after being found guilty of
contempt of the ICAC and The Sun-Herald's John Synott was threatened
with prosecution for contempt of the Parliament when he refused to
reveal the name of a source. In Queensland in 1994, Madonna King of
The Australian and Paul Whittaker of The Courier-Mail were threatened
with contempt charges after printing material arising from CJC
investigations. There is the potential for similar instances of a
journalist being placed in the position of following the Code of
Ethics rather than a direction of the court, e.g. John Fairfax & Sons
Limited v. Cojuangco (1987) 8 NSWLR 145, etc. In the Cojuangco case,
the defendant had to withdraw its reliance on the defence of qualified
privilege, rather than have its reporter required to reveal a
confidential source, even in the early stages of the litigation. [40]
"
[...]
"40.The Australian Press Council has called on both federal and state
governments to introduce shield laws to effect recognition of the
principle of respect for the confidentiality of journalists' sources.
The Council prefers the American approach and proposes that, to obtain
the identity of a source, a party must show that: 1) there is probable
cause to believe that the newspaper has information that is clearly
relevant to a specific probable violation of the law; 2) the
information sought cannot be obtained by alternative means less
destructive of freedom of speech and of the press; and 3) the interest
in obtaining the information is compelling."
[...]
"Last updated 15 March 2002"
Business Ethics Direct
http://www.ethicsa.org/bed_issue_30.htm
"Suppression of the media has come under the spotlight of late,
reports E-Briefs with a story in the Sydney Morning Herald reporting
on the rising culture of secrecy and suppression in Australia. The
report quotes Michael Stutchbury of The Australian, part of the
Murdoch-owned News Limited stable, saying that an increasing number of
suppression orders being issued by courts and 'Kafkaesque rules'
restricting photography of politicians in Federal Parliament were just
two examples of this shift. Court suppression orders in South
Australia rose 87% last year on the previous 12 months, and freedom of
information laws were becoming a 'sick joke' with government
departments charging prohibitive fees for processing requests.
Full SMH report: http://www.smh.com.au/articles/2002/07/04/1025667037008.html"
In the US, the Constitution protects against prior restraint and
offers some privilege for protection of sources. There is some
precedent for the position that a source can expect to be protected
under the promissory estoppel concept. Source protection is offered by
Shield Laws in various states of the Union, but there is no Federal
protection. Protection can often hinge on whether the person seeking
it is defined as a journalist by the court, as in the instance of
Vanessa Legget, an author but not a reporter.
UNITED STATES
Breaching Confidentiality: The Basics
http://www.ume.maine.edu/martins/JMC375WEB/Group3Long.htm
"States with shield laws: Alabama, Alaska, Arizona, Arkansas,
California, Colorado, Delaware, District of Columbia, Florida,
Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan,
Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New
York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Carolina, Tennessee.
States with court-recognized privileges (some states have both a
shield law and a court-recognized privilege): Alabama, Alaska,
California, Connecticut, Delaware, District of Columbia, Florida,
Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine,
Maryland, Massachusetts, Minnesota, Mississippi, Missouri, New
Hampshire, New York, North Carolina, Ohio, Oklahoma, Pennsylvania,
South Dakota, Texas, Utah, Vermont, Virginia, Washington, West
Virginia, Wisconsin.
States with neither: Hawaii, Wyoming."
Texas Autbor Released from Prison
http://www.writenews.com/2002/011002_legget_released.htm
"In November, SPJ and two other journalism groups joined a
friend-of-the-court legal brief filed on her behalf by the Reporters
Committee for Freedom of the Press. The organizations argued that
Leggett met the requirements of the reporter's privilege as
established by three federal appellate courts and should have been
released -- just as other jailed journalists who have appealed
contempt citations. The SPJ also provided $12,500 from its Legal
Defense Fund so she could press her case in court."
In this instance, the reporter asserts that safety of the journalists
would be compromised if confidentiality could not be maintained.
EUROPE
BBC News|Europe|Journalist fights to avoid testifying
http://news.bbc.co.uk/2/hi/world/europe/2294781.stm
SEARCH TERMS
://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=Australia+journalistic+privilege
://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=shield+laws+journalistic+privilege
hlabadie-ga |
Request for Answer Clarification by
cati-ga
on
12 May 2003 20:45 PDT
Yes thankyou for the answer, yes that website last uptated in 2002 is
recent enough.
I just have a few clarifications.
1) Can you tell me more about the Evidence Amendment (Confidential
communications) Act... to which u menationed? In how it relates to
journalists fefusal to disclose sources!
2) Im a liitle confused, what exactly is the law in Australia relating
to the refusal by joutralists to disclose their sources? Is it and if
so how is it uncertain and inadequate?
3) and how does the law relating to refusal to disclose sources relate
to free speech in that, the law exerts a chilling effect on free
speach?
4)Can you please give me more information on the case, (DPP v. Luders,
unreported, District Court of WA No. 177 of 1990).
|
Request for Answer Clarification by
cati-ga
on
12 May 2003 21:11 PDT
The answer does point me on the right direction, but hwta it is that i
really want to know is....... Is or is not, the law relating to the
refusal by journalists to disclose their sources uncertain,
inadequate. and does the law overall exert a chilling effect on free
speech.
|
Clarification of Answer by
hlabadie-ga
on
13 May 2003 12:01 PDT
There is no Federal statutory protection designed specifically to
exempt journalists from compulsory disclosure of sources or other
confidential communications. Protections for legal and medical
communications have been codified in Commonwealth law, and the several
states have enacted similar laws. There have been successive reports
issued that have called upon the legislatures to produce a statutory
discretionary doctrine of privilege. There is in New South Wales a
discretionary judicial protection extended in a general manner to
professional confidential communications, which can be construed to
include journalistic protection. The common law, as has been shown,
remains inconclusive.
LexisNexis Butterworths Australia
http://www.lexisnexis.com.au/aus/academic/research/LawSubjects/Evidence/EvidenceLegislation.asp
NSW Consolidated Acts
http://www.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s126a.html
EVIDENCE ACT 1995 - SECT 126A
Definitions
126A Definitions
(1) In this Division:
"harm" includes actual physical bodily harm, financial loss, stress or
shock, damage to reputation or emotional or psychological harm (such
as shame, humiliation and fear).
"protected confidence" means a communication made by a person in
confidence to another person (in this Division called the "confidant"
):
(a) in the course of a relationship in which the confidant was acting
in a professional capacity, and
(b) when the confidant was under an express or implied obligation not
to disclose its contents, whether or not the obligation arises under
law or can be inferred from the nature of the relationship between the
person and the confidant.
"protected confider" means a person who made a protected confidence.
"protected identity information" means information about, or enabling
a person to ascertain, the identity of the person who made a protected
confidence.
(2) For the purposes of this Division, a communication may be made in
confidence even if it is made in the presence of a third party if the
third party's presence is necessary to facilitate communication.
EVIDENCE ACT 1995 - SECT 126B
http://www.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s126b.html
Exclusion of evidence of protected confidences
126B Exclusion of evidence of protected confidences
(1) The court may direct that evidence not be adduced in a proceeding
if the court finds that adducing it would disclose:
(a) a protected confidence, or
(b) the contents of a document recording a protected confidence, or
(c) protected identity information.
(2) The court may give such a direction:
(a) on its own initiative, or
(b) on the application of the protected confider or confidant
concerned (whether or not either is a party).
(3) The court must give such a direction if it is satisfied that:
(a) it is likely that harm would or might be caused (whether directly
or indirectly) to a protected confider if the evidence is adduced, and
(b) the nature and extent of the harm outweighs the desirability of
the evidence being given.
(4) Without limiting the matters that the court may take into account
for the purposes of this section, it is to take into account the
following matters:
(a) the probative value of the evidence in the proceeding,
(b) the importance of the evidence in the proceeding,
(c) the nature and gravity of the relevant offence, cause of action or
defence and the nature of the subject matter of the proceeding,
(d) the availability of any other evidence concerning the matters to
which the protected confidence or protected identity information
relates,
(e) the likely effect of adducing evidence of the protected confidence
or protected identity information, including the likelihood of harm,
and the nature and extent of harm that would be caused to the
protected confider,
(f) the means (including any ancillary orders that may be made under
section 126E) available to the court to limit the harm or extent of
the harm that is likely to be caused if evidence of the protected
confidence or the protected identity information is disclosed,
(g) if the proceeding is a criminal proceeding—whether the party
seeking to adduce evidence of the protected confidence or protected
identity information is a defendant or the prosecutor,
(h) whether the substance of the protected confidence or the protected
identity information has already been disclosed by the protected
confider or any other person.
(5) The court must state its reasons for giving or refusing to give a
direction under this section.
Compare to the similar sections of the Commonwealth's Evidence Act
1995, which does not have such a provision, but provides for spousal,
legal, and clerical confidence.
Commonwealth Law
Evidence Act 1995
http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/
EVIDENCE ACT 1995- SECT 117-131
http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s117.html
Whether a lack of such protection has a chilling effect on free speech
is primarily a political rather than a legal question, and one to be
decided in the political process after public debate. The balance of
competing public interests must be considered, and those interests
will probably be different in every case. A blanket protection would
certainly produce clarity, but there are obvious opportunities for
abuse of the claim of confidentiality.
It would seem that an even more important restraint of free speech is
demonstrated by the application of the suppression of access noted in
the answer and the circumvention of the Freedom of Information Act.
The only additional references that I can find to DPP v Luders are
contained in the footnotes to:
Professional Privilege for Confidential Communications
http://www.lrc.justice.wa.gov.au/References/P90.PDF
"Terms of Reference
In 1990 the Commission was asked to consider what changes, if any,
should be made to the law of professional privilege as regards the
obligation to disclose confidential communications or records in
judicial proceedings. In particular, the Commission was asked to
recommend ‘whether clause 109 of the draft Evidence Bill in Appendix A
to the 38th Report of the Australian Law Reform Commission, or any
variation thereto, should be adopted in Western Australia’.
Background of Reference
The issue was referred to the Commission following a situation where a
newspaper journalist refused to disclose the source of certain
relevant information in Western Australian judicial proceedings.1 The
same issue had been raised in incidents involving journalists in other
jurisdictions. The Commission had previously considered whether a
professional privilege for journalists should be introduced in its
1980 report on Privilege for Journalists.2 In that report, the
Commission recommended that there should be no statutory privilege for
journalists and that any development in this regard should be made
only at common law.3"
[...]
"1 DPP v Luders (unreported) Court of Petty Sessions (WA), 27 November
1989, No 27602 of 1989 (committal proceedings); DPP v Luders
(unreported) District Court of Western Australia, 7–8 August 1990, No
177 of 1990. Both courts were exercising federal jurisdiction because
the charges were under the Crimes Act 1914 (Cth)."
A search of LexisNexis produced no results.
Additional SEARCH TERMS
://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=Australia+Confidential+Communications+Act
hlabadie-ga
|
Request for Answer Clarification by
cati-ga
on
14 May 2003 18:38 PDT
Thanks for that answer clarification, it has made things a little
easier to understand!!!!
Sowrie for all the bother, ur answer is great, but i want to know a
bit more!!!!
1) I would just like a little more clarification: on the refusal by
journalists to disclose their sources being uncertain and inadequate.
(a) Is the law uncertain and inadequate and, Perhaps examples on how
the law is uncertain and inadequate?
2) On the question of free speech -
(i)What is usually considered, when determining the balance of
competing questions? What considerations are usually made after puplic
debate? What do u mean when u refer to the, application of supresssion
noted in the ans. & the circimvention of the freedom of Information
Act?
(ii) Overall and generally speaking is,does lack of prorection and
refusal to reveal sources, cause a chilling effect on free speech?
(iii) and lastly where did u get your information from, in the para. u
did refer to free speech in?
|
Clarification of Answer by
hlabadie-ga
on
15 May 2003 12:03 PDT
1) I would just like a little more clarification: on the refusal by
journalists to disclose their sources being uncertain and
inadequate.
(a) Is the law uncertain and inadequate and, Perhaps examples
on how
the law is uncertain and inadequate?
In the answer I said that the question of protection of
confidentiality was problematic, meaning that it is "difficult of
solution, doubtful, questionable, uncertain." Several sources were
cited that showed that this problematic state of the law was
troublesome both to journalists and legal experts. The Australian
Press Council's site was a particular reference.
As I pointed out, there is no consistent treatment of journalistic
privilege anywhere (not even in the US where absolute rights of free
speech and a free press are explicitly enumerated in the First
Amendment to the Constitution), that common law (case law) has been
called inadequate, and that statutory law is lacking in many
jurisdictions and is framed differently in different jurisdictions
where it does exist.
Thus, a ruling in one state may not be applicable in another state.
The evidentiary exception for professional communications in NSW has
never been tested in court. Without a blanket nationwide rule, there
can be little consistency expected. The absence of a general law and
the enactment in one Australian state (NSW) of the professional
communication exclusion was cited in example of the uncertainty, and a
number of cases in which journalists have refused to give evidence and
have been punished by fine and/or imprisonment were also cited as
examples of the inadequacy of the current law to resolve the conflict
between professional ethics and legal compulsion.
If you read the article, Professional Privilege for Confidential
Communications, cited above, you will see this footnote:
"12...The Commission confirmed the desirability of uniformity of
evidence legislation in its Review of the Criminal and Civil Justice
System in Western Australia, Project No. 92 (1999) 171. In that
report, the Commission commented that the existence of different
federal and state evidentiary regimes in Western Australia are
inefficient and unfair as the same case potentially can be prepared
and conducted on the basis of the two inconsistent regimes."
2) On the question of free speech -
(i)What is usually considered, when determining the balance
of
competing questions? What considerations are usually made
after puplic
debate?
The matters that are taken into legal consideration of competing
interests are spelled out in the NSW legislation already cited,
EVIDENCE ACT 1995 - SECT 126B.
These same matters formed the basis of the public debate that
determined whether a law should be enacted and, if enacted, what shape
that law should be given. In the already cited article (Professional
Privilege for Confidential Communications), this occurs:
"That in exercising such a discretion the court should consider
whether or not the public interest in disclosure of the evidence is
outweighed, in the particular case, by the public interest in the
preservation of confidences between persons in the relevant positions
of the confidant and witness and the encouragement of free
communication between such persons."
What do u mean when u refer to the, application of
supresssion
noted in the ans. & the circimvention of the freedom of
Information
Act?
Perhaps you overlooked this portion of the answer:
Business Ethics Direct
http://www.ethicsa.org/bed_issue_30.htm
"Suppression of the media has come under the spotlight of late,
reports E-Briefs with a story in the Sydney Morning Herald reporting
on the rising culture of secrecy and suppression in Australia. The
report quotes Michael Stutchbury of The Australian, part of the
Murdoch-owned News Limited stable, saying that an increasing number of
suppression orders being issued by courts and 'Kafkaesque rules'
restricting photography of politicians in Federal Parliament were just
two examples of this shift. Court suppression orders in South
Australia rose 87% last year on the previous 12 months, and freedom of
information laws were becoming a 'sick joke' with government
departments charging prohibitive fees for processing requests.
Full SMH report: http://www.smh.com.au/articles/2002/07/04/1025667037008.html"
(ii) Overall and generally speaking is,does lack of
prorection and
refusal to reveal sources, cause a chilling effect on free
speech?
This calls for an opinion. It is inappropriate for a researcher to
offer such an opinion on the laws of a sovereign nation. The people of
Australia must make that determination for themselves through their
representatives. Clearly, journalists and advocates of a free and
independent press feel that there is a chilling effect, while those
who are charged with enforcing the laws and prosecuting those who have
allegedly violated the laws feel differently in some instances.
(iii) and lastly where did u get your information from, in
the para. u
did refer to free speech in?
Follow the links on the pages already cited. The Australian Press
Council is the primary source.
Index of Protection of Sources material
http://www.presscouncil.org.au/pcsite/fop/sources.html
Also, use the search functions of:
LexisNexis Butterworths Australia
http://www.lexisnexis.com.au/aus/academic/research/default.asp
Constitutional Implication on Free Speech
http://www.presscouncil.org.au/pcsite/public/aug95/lee.html
"Constitutional Implications
Assoc Prof H P Lee, a Public Member of the Press Council, looks at
some decisions of the High Court which have had an impact on the
position of free speech in Australia."
[...]
"The attacks on the High Court in relation to implied rights have been
taken to extreme. These attacks have invoked images of a Parliament
being emasculated by a power hungry judiciary. The judicial process of
constitutional interpretation has been condemned as amounting to a
usurpation of parliamentary supremacy. To put it crudely, the High
Court is accused of "stealing" power from the people of Australia.
Nothing is further from the truth.
The implied freedom of political communications established by the
High Court in the Australian Capital Television case and the
Nationwide case was not a freedom which was simply plucked from the
air. A perusal of the individual judgments in those cases would
indicate that the judges sought to place the implied freedom on
logical foundations.
The case for an implied freedom of speech, in my view, is a very
persuasive one. In the first place, it must be recognised that
implications play a vital role in the interpretation of the
Constitution.
Sir Owen Dixon, often regarded as the master of legalism, had to
stress that of all instruments a constitution would be the last one in
respect of which no implications could be made. The pouring of outrage
by critics of the Court gives the impression to the public that
reading implications in relation to the Constitution is a radical move
which occurred overnight. The cognoscenti will agree that implications
have been part and parcel of the constitutional landscape.
Implications have been used to restrict the law-making capacity of the
Parliaments.
In 1915 the High Court in the Wheat case invoked the separation of
powers implication. This implication was further refined by the court
in the famous 1956 decision of Boilermakers'. Thus legislation enacted
by the Commonwealth Parliament which violates the separation of the
judicial power doctrine will be invalidated by the court. The doctrine
was implied by the court from the structure of the Constitution which
allocates the different functions of government to different Chapters
of the Constitution, an allocation modelled closely on the American
Constitution. In the Boilermakers' case, the High Court said:
If you know nothing of the history of the separation of powers, if you
made no comparison of the American instrument of government with ours,
if you were unaware of the interpretation it had received before our
Constitution was framed according to the same plan, you would still
feel the strength of the logical inferences from Chaps I, II and III
and the form and contents of ss 1, 61 and 71."
[...]
"The Commonwealth Parliament, in exercising its powers, cannot
discriminate against the States or seek to impair their existence or
functioning. This limitation is also brought into existence by the
process of implication. The arena in which that limitation is applied
is a confrontation between the Commonwealth, on one hand, and the
States, on the other. The implied freedom of speech is part of that
process of constitutional evolution (not revolution): it acts as a
bulwark protecting the people of Australia from a Parliament which may
seek to diminish their fundamental freedoms. How can it be that by
guaranteeing the people of Australia their fundamental freedom of
speech the High Court is acting against the interests of the people?
The simplistic argument is used to say that parliamentarians being the
representatives of the people will determine the scope of fundamental
freedoms of the people: after all, if the people disagree they can
always turf them out at the next election. Fundamental freedoms are so
precious that their diminution even for a short span of time is
unacceptable in a democracy, never mind having to wait till an
election is called. The critics' argument is also based on the
assumption that what the parliamentarians say is what the people
really want: that can only be true if laws are made by
citizen-initiated referendums."
Goodwin's Case - case notes
http://www.presscouncil.org.au/pcsite/public/may96/shield.html
Protection Of Sources
In Goodwin's Case, the European Court of Human Rights has supported a
British journalist's refusal to disclose a confidential source.
When William Goodwin, a young trainee journalist on a British journal,
The Engineer, received a telephone call leaking information about the
finance affairs of a company, he was not to know that his subsequent
attempts to protect the anonymity of his source would result in seven
years of litigation - in the House of Lords and then in the European
Court of Human Rights. Although he was threatened with imprisonment
and a fine of £5,000, he consistently refused to reveal his source. He
felt so strongly about his duty to protect his source that he even
rejected a compromise offered by the trial judge of putting the
information in a sealed envelope to be held by the court pending the
result of his appeal.
After he spoke to his source, he drafted an article describing how the
company facing an expected loss of £2.1 million was attempting to
raise a £5 million loan. He then phoned the company to check facts in
the article. They concluded the information came from a missing
confidential corporate plan. They obtained an injunction to restrain
the publication of the article.
British Shield Law
A "shield law" was in fact adopted in Britain in 1981. This gives
journalists some protection from disclosing a source. Under it, a
court is not to order the press to reveal the identity of a source
unless satisfied that it is "necessary in the interests of justice or
national security or for the prevention of disorder or crime".
(Contempt of Court Act, 1981, Section 10.) The British courts have
ruled that the words "interests of justice" are not limited to cases
where disclosure is necessary in the particular action being taken, in
this case the application for the injunction. After granting the
injunction, the trial judge held, and the Court of Appeal and House of
Lords both unanimously agreed, that it was in the interests of justice
for the company to find the leak which was likened by one judge to a
time bomb ticking away, likely to damage the company at some time in
the future. They ordered the journalist to reveal his source.
He then brought a case against the UK in the European Court of Human
Rights under Article 10 of the European Convention on Human Rights.
The relevant part provides that the right to freedom of expression may
be subject to restrictions prescribed by law and which are necessary
in a democratic society.
The decision
The Court, an eighteen judge bench, stressed that freedom of
expression constitutes one of the essential foundations of a
democratic society. The safeguards to be afforded to the press were of
particular importance. The protection of journalistic sources was one
of the basic conditions of press freedom. "Without such protection,
sources could 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 could be undermined ..."
Because of the importance for press freedom in a democracy of
protecting journalistic sources and the potentially chilling effect an
order of source disclosure would have on the exercise of said freedom,
such a measure could not be compatible with the convention unless it
was justified by an over-riding requirement in the public interest.
This had to be "convincingly established".
In the present case the injunction notice which had been circulated to
the press generally had prevented dissemination of the confidential
information. Eliminating the residual threat of damage would have
three benefits to the company: revealing the source; obtaining
compensation; and exposing a disloyal employee or collaborator. Even
considered cumulatively they were held to be not sufficient to
outweigh the vital public interest in the protection of Mr Goodwin's
source. The Court found (11 to 7) that both the order to reveal his
source, and the fine imposed for refusing to do so, were a violation
of Mr Goodwin's right to freedom of expression. Nevertheless, 6 of the
dissenting judges joined with the majority in asserting that the
protection of journalists' sources is one of the basic conditions of
press freedom and, without this protection, the vital public watchdog
role of the press may be undermined.
An Australian Shield Law
While the case is not authority for an absolute shield law, it
emphasises the proposition that the protection of journalists'
confidential sources is vital to the role of a free press in a
democratic society. It should encourage Australian moves for a shield
law. It may also suggest that the implied constitutional guarantee of
freedom of political communication in Australia gives some protection
to the confidentiality of journalists' sources from disclosure at
least in matters of political communication."
Freedom of the Press Positions
http://www.presscouncil.org.au/pcsite/fop/positions.html#sands
"Search and seizure of journalists' material
The Council proposes that searches and seizures be limited to those
cases
where there is probable cause to believe the journalist has committed
the criminal offence (and not merely a breach of "official secrecy"
provisions) to which the materials relate; where there is reason to
believe immediate seizure is necessary to prevent the death of, or
serious bodily injury to, a human being; or where the search or
seizure relates only to documents but not to the journalist's own
notes and other "work product materials", and the journalist refuses
to produce documents under a court order or there is reason to believe
they will be destroyed or hidden if a subpoena is issued.
The Council proposes changes to limit the extraordinary powers vested
in law enforcement agencies and investigative bodies. To guarantee the
integrity of the new limitations, the Council proposes that these be
constrained by the issuing of guidelines or by legislation so as to
preserve the confidentiality of sources outside of the limitation and
by providing remedies, including damages, but allowing a defence of
good faith."
[...]
"Shield Law
The Council continues to believe that journalists should only be
compelled to reveal their confidential sources under stringent
conditions, analogous to its position on disclosures in legal actions,
where it argues for compulsion only:
where a prosecutor can show that there is a probable cause to believe
that the journalist has information that is clearly relevant to a
specific probable violation of the criminal law, constituting a
serious criminal offence (obviously excluding any offence arising from
the disclosure of the contents of an official document); where the
plaintiff can demonstrate that the information sought cannot be
obtained by alternative means less destructive of freedom of speech
and of the press; and where the plaintiff can demonstrate a compelling
and over-riding interest in the information."
November 1994 Council News
http://www.presscouncil.org.au/pcsite/public/nov94/news.html#shield
"Senate Report
The report, "Off the Record: Shield Laws for Journalists' Confidential
Sources", the first report of the Senate Standing Committee on Legal
and Constitutional Affairs into the Rights and Obligations of the
Media, has been released.
In welcoming the report, the Press Council noted that its central
recommendation - the enactment of a judicial discretion to excuse a
journalist from answering questions about the identity of a
confidential source - may not be sufficient in two areas where there
are a growing number of conflicts of conscience for ethical
journalists:
government inquiries and statutory investigativebodies, especially
those which can virtually draft their own terms of reference; and
the use of pre-trial discovery, where a plaintiff has not yet sued for
defamation or injurious falsehood, to reveal a source."
"The Press Council believes that journalists should only be compelled
to reveal their sources at a trial in an open court. The Council
argues further that such cases be restricted to serious criminal cases
where, for example, the information is vital to establish guilt or
innocence. It would have been preferable for the Committee to have
followed the West European and North American trend which is to be
more protective of confidential sources," the Council's Chairman, Prof
David Flint remarked.
The Council applauded the Committee for its recommendation to change
punishment for contempt in those cases where a journalist determines,
for reasons of commitment to a code of ethics, not to reveal a source.
Its argument against open-ended terms of imprisonment demonstrated a
civilised approach to the question.
The report also questioned the efficiency of the system of press
accountability. The Press Council suggested that self-regulation of
the print media was working extremely well.
"In 1993-4, over 36% of complaints were settled to the satisfaction of
complainants - by mediation or after the receipt of the response from
the publication - without recourse to an adjudication," Prof Flint
noted. "The Council's complaints process has been improved by recent
changes aimed at making it more expeditious and is being evaluated by
a series of public and professional surveys and meetings. We are in
the process of surveying past complainants to find out how they assess
the complaints procedure."
The Council will discuss the implications of the report at its
November meeting. Prof Flint, however, has expressed some caution
about the recommended increase in the Council's powers. The committee
suggested that the Council be given power to impose and enforce
sanctions on the media. "This involves basic issues about freedom
established a long time ago," said Prof Flint. "A power to impose
meaningful sanctions, such as fines, could backfire: the Council would
become a de facto court. This would have a significant impact on the
Council which is currently a free and efficient way of dealing with
complaints. With sanctions available, the Council would probably have
to allow legal representation. And its decisions would be subject to
appeal.
"Nevertheless, the Council welcomes this report as a carefully
considered document."
The Courts and the Media--What Reforms are Needed and Why
http://www.austlii.edu.au/cgi-bin/disp.pl/au/journals/UTSLR/1999/8.html?query=%22david%22+and+%22hellaby%22
"In a modern democracy, the courts and the media must have two
essential characteristics. First, they must be independent. Second,
they must be separate, not only from the executive and the
legislature, but also from each other. The best we can hope for in the
relations between them is that each will have a degree of respect for
the other, but certainly not deference."
[...]
"Confidential Sources
Confidential sources are fundamental to the very concept of
journalism. Without the guarantee of protection, "fear of exposure
will cause dissidents to communicate less to trusted reporters. And
fear of accountability will cause editors and critics to write with
more restrained pens."[5]
Not long ago, journalists in Australia knew that, on rare occasions, a
court might require them to expose their source, and by refusing they
risked a fine or gaol. This did not happen often.
We have had a rash of cases: in 1990, Tony Barrass--gaoled and fined;
in 1992, Joe Budd--gaoled; in 1993, Chris Nicholls--gaoled; [<<]David
Hellaby [>>]--fined; John Synott--threatened with contempt proceedings
and Deborah Cornwall--found guilty of contempt. There have been raids
on newspaper offices and those of the ABC around the country.
In 1995, The Courier-Mail ran a story that the Federal Police had gone
soft on an investigation into allegations that a former federal
Minister had been provided with services of prostitutes in return for
government favours. No doubt, wanting to find out who leaked the
story, there were raids late last year on the journalist's home and on
offices of The Courier-Mail. They were unsuccessful. The raid at The
Courier-Mail was forestalled by television cameras arriving to film
the event.
What is the reason for this acceleration? Are these isolated instances
or is there a sinister campaign against journalists? Is it acceptable
in our Australian democracy that when incompetence, bad administration
and even worse have been exposed, that it is journalists who suffer?
Journalists in Australia have always known of the risk they run. Apart
from the broad undefined power of Parliament to find contempt,
journalists, in the past at least, thought that they would not have to
reveal sources except at a trial and then only when this was relevant
to the proceedings. Not any more.
There have been two pernicious developments which have come
about--without our noticing.
The first is the use of pre-trial discovery to punish journalists.
Pre-trial discovery seemed a good idea at the time. Before you start
an action, the court helps the citizen to find out more about a case
he or she may wish to bring. It is meant to stop clever lawyers
winning by surprise--trial by ambush. It is now a superb weapon which
has been added to the armoury of the rich and powerful. It has the
potential of stopping a journalist (and setting an example to others).
It is also very satisfying. You won't find out who gave the
information--but you certainly can make the journalist suffer.
The second development is the creation of statutory bodies which have
wide investigative powers. Not only bodies like the New South Wales
Independent Commission Against Corruption (ICAC). Others are given
ancillary powers to require the production of documents or compel the
answering of questions. ICAC conducts its own investigations and
determines its own terms of reference. So one of the few protections
for witnesses--relevance to the proceedings--has gone out the window.
Deborah Cornwall could not have been asked the question put to her by
ICAC in a court unless it had been relevant to a specific charge
against the accused. When eventually her recalcitrance was referred to
the Supreme Court, her lawyers pointed out that convicted criminal,
"Neddy" Smith, too, had refused to answer questions. But no action was
taken about his recalcitrance.
Did we ever intend to give powers to bodies like ICAC greater than
those of the Supreme Court, to use against journalists and the
media--the very institution that has done more in the initial exposure
of defects in public life than any other?
As Justice Douglas of the United States Supreme Court said:
A reporter is not better than his source of information ... Unless he
has a privilege to withhold the identity of his source, he will be the
victim of governmental intrigue or aggression ... [He warned that the]
reporter's main function ... then will be to pass on to the public the
press releases which the various departments of government issue.[6]
Many jurisdictions recognize, to a greater or lesser degree, that
journalists should be able to protect their confidential sources.[7]
The Australian Press Council, many years ago, initiated a call for the
introduction of shield laws in Australia. A shield law needs more than
a direction to the court to balance the competing interests of the
litigants with the desirability of protecting the various degrees of
confidentiality which may prevail in our society."
Bring Unto Me Your Sources For Sacrifice
http://www.austlii.edu.au/cgi-bin/disp.pl/au/other/media/MLWS%20Commentary/Journalism%20Ethics%20and%20Confidentiality/504.htm?query=%22david%22+and+%22hellaby%22
"In August last year Queensland journalist Joe Budd was jailed for
contempt after he refused in a defamation action against his paper,
TheCourier-Mail, to reveal the identity of a source. His article was
headed Code of Silence and reported the collapse of the prosecution of
nine police officers who were alleged to have been involved in a
drunken rampage at a football carnival in Toowoomba in March 1989.
The article said that the prosecutions failed because of a lack of
police co-operation and intimidation of witnesses.
Budd refused to reveal the source ('a high ranking public servant')
who attributed the failure of the prosecution case to the witnesses.
Toowoomba was shocked by what happened in 1989, and the damage done to
hotels and other public facilities. Yet the only person for whom
punishment ultimately was ordained was the hapless journalist.
In recent memory was the Cojuangco case, where Peter Hastings was
being pursued by this former crony of the wildly corrupt Marcos regime
for his sources concerning a Sydney Morning Herald article on the
plundering of the foreign reserves of the Philippines.
Hastings went to his grave without revealing his sources, despite
strenuous efforts by the courts to prise them from him. The courts
were most enthusiastic that Mr Cojuangco be given 'a remedy'. He ought
to be able to sue someone and get some satisfaction, the judges cried.
Any defamation action against the newspaper might well be defensible,
unless of course the paper surrendered all credible defences, which is
what the Herald's lawyers ultimately pledged to the courts in an
effort to save the source or sources."
[...]
"Similar indignation about the requirements for 'the administration of
justice' was the response I felt to the State Bank of South Australia
taking action against Advertiser journalist David Hellaby. The bank
wanted his source about a story on alleged criminal activity 'on an
incredible scale' within the State Bank Group.
He had written in July last year that the Auditor General had
uncovered this criminality in the course of his inquiry into the
bank's disastrous affairs.
This is the same bank that has been the subject of a $3 billion rescue
package from the government, and whose board and most of the senior
management has been required to depart. The Premier even resigned from
office because of the bank scandal. Yet the same bank was considering
suing a journalist for injurious falsehood to the tune of $500,000.
The bank said it needed the source in order to work out whether there
had been any malice in Hellaby's articles.
Here was a case to which the application of the law was applied in
quite a distorted manner. It remains, in current memory, an
institution that has blundered away billions of dollars, and yet for
this woe and misery it was a journalist who was taken to the altar of
sacrifice.
Hellaby only stayed out of jail because at the very last minute a
settlement was reached between the bank and his employer. The terms of
that settlement are secret. Justice Duggan made it clear that the
journalist would have been given a jail term for his contempt in
failing to deliver the source had not the State Bank agreed to settle
the matter. As it was he was fined $5,000.
Chris Nicholls, the ex-ABC Adelaide journalist, is at least still
alive, even though he has been to jail for refusing to surrender the
sources who provided him with banking information relevant to an
investigation he was conducting into possible conflicts of interest of
a former cabinet minister.
In sentencing him Judge Taylor of the South Australian District Court
saw the matter in simple terms. He said the media has all the freedoms
it needs. Keeping the confidences of a source in the face of orders of
the court is something that will not be tolerated.
In parliament the South Australian Attorney General, Mr Sumner,
launched into a strident attack on Nicholls. He said it should be
queried whether he had a source at all. He added that by refusing to
reveal their sources in court journalists would 'undermine the
criminal justice system and the democracies that we have fought for in
this State over a very long period of time'.
He added for good measure that if the law allowed journalists to
protect their sources 'it could end up with a criminal justice system
not being able to function'."
Report on Free Speech Issues 2001-2002
http://www.presscouncil.org.au/pcsite/fop/ar02.html#priv
"Qualified privilege defence
Section 22 should be amended to include a set of factors for courts to
consider when assessing reasonableness. The following matters are
relevant:
The extent to which the subject matter is a matter of public interest;
The extent to which the matter complained of concerns the performance
of the public functions and activities of the plaintiff;
The nature of the information;
The seriousness of the imputations;
The extent to which the matter distinguishes between proven facts,
suspicions and third party allegations;
The urgency of the publication of the matter;
The sources of the information and the integrity of those sources;
Whether the matter complained of contained the gist of the plaintiff's
side of the story and, if not, whether a reasonable attempt was made
by the journalist to obtain and publish a response from the plaintiff;
and
Any other steps taken to verify the information in the matter
complained of.
(Note: several alternatives were given to this proposal as a way of
dealing with qualified privilege, public figures and/or matters
concerning government and political matters.)"
SEE ALSO:
Democracy and Human Rights
http://www.ucis.unc.edu/about/pubs/democracy/Roxborough.pdf
“SHOULD THE MEDIA BE SELF-REGULATING?”
http://www.aba.gov.au/abanews/speeches/bcasting_info/pdfrtf/DF-NEWDELHI-Feb00.PDF
Searching For Sources
http://www.presscouncil.org.au/pcsite/public/feb96/sources.html
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