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Journalists’ confidential sources: Free speech under attack

31 July 2016 Communications & PR Executive Gavin Lower e: gavin.lower@mk.com.au d: 03 9208 9891 m: 0414 796 726
Read Time 4 mins reading time

Article source: The Australian

Rights are being eroded or res­tricted through various means and the war for free speech is being waged on a number of different battlegrounds.

But the attack on our rights to free speech that I’m most concerned about is happening ­secretly. And that’s why it is most concerning. It comes in the form of an attack on journalists’ rights to keep sources confidential.

Government-run, taxpayer- funded semi-secretive but very powerful organisations are undermining our free speech. And without most of us even realising.

The concept of free speech has many aspects to it. Free speech encompasses not just your right to speak — but your right to hear. If there is a right for someone to impart information, then there must be a corresponding right to receive that information.

That’s why journalists rights to free speech are so important. Not because of the journalist. But ­because of you — because of your right to be informed by the ­journalist.

Effectively, attacking journalists seeking disclosure of their sources is attacking your right to know.

When journalists are restricted in what they can exposure it means the public will be less informed. Whether it be corruption, hypocrisy or public safety issues, the public’s right to know is crucial and so the journalists rights to free speech are equally crucial.

The most important way journalists exposure these important matters to the public is through tip-offs and leaks. Whether it be Watergate that brought down the United States president or the Khemlani Loans affair that brought down our government all those years ago, leaks are crucial to the way journalists and media work.

I once acted for brave then News Corp journalists Michael Harvey and Gerard McManus, who were both found guilty for not revealing a source to the Victorian County Court. Their crime was really that they had embarrassed the state government by exposing a plan to take away war widows pensions.

The government wasn’t happy with the bad plan being exposed. An inquiry happened and a man believed to be the source was charged. Harvey and McCanus refused to give evidence against him. But why should they have had to imperil themselves for just doing their jobs. And doing them well. Corrupt police or politicians don’t want to be exposed. Governments don’t want to be embarrassed. And dodgy businessmen will sack any employees who ­expose them. So the only way a journalist can expose these ­people is with confidentiality.

When journalists don’t receive protection for keeping their sources confidential, it means sources become nervous. And if a source is nervous, they’re less likely to come forward. This is commonly known as the chilling effect. Our legislative structure around journalists and their sources encourages the chilling effect. That’s because of the proliferation of secretive investigatory bodies and the expansion of their powers.

In Victoria there is the ­ind­ependent broadbased anti-­corruption commission (IBAC), NSW has the Independent Commission Against Corruption (ICAC), there’s the Tasmanian Integrity Commission, the Queensland Crime & Corruption Commission (QCCC) and the ­Office of Chief Inspector within Queensland Corrective Services. Over in the west we have the Corruption & Crime Commission (CCC) and in South Australia there’s the independent Commissioner Against Corruption (ICAC — SA). And just because that’s not enough, we have the federal bodies such as the Australian Criminal Intelligence Commission (ACIC, formerly Australian Crime Commission) and the ­Australian Security Intelligence Organisation (ASIO). And that’s not to mention the Australian Commission for Law Enforcement Integrity (ACLEI), the Inspector-General of Intelligence and Security (IGIS) the Australian Transaction Reports and Analysis Centre (AUSTRAC).

You might be surprised to read this, but I could go on. It is critical that although Australia has had for a number of years a protection — albeit a limited one — for ­journalists wanting to keep a source confidential, for the most part that protection is automatically overridden by the legislation establishing many of these ­bodies. For example, section 37 of the ICAC Act and section 145 of the IBAC Act in Victoria specifically provide that the journalist source legislation does not apply to questioning by IBAC or ICAC.

The protection normally afforded to journalists can be found in the Evidence Act of particular states and the Commonwealth. Not all states have the protection. Queensland for example has none.

The protection is in the form of a replaceable presumption in favour of the journalists right to keep a source confidential.

A judge can oust the pre­sumption if he or she considers the public interest in disclosing the source outweighs the impact on the source and the general ­impact on the ability of journalists to obtain information in the ­future.

So the legislation effectively acknowledges the possibility of the chilling effect and requires a judge to take it into account. It is a reasonably powerful protection mainly because the onus is on the party seeking disclosure.

So while journalists rejoiced in the source protection they were given, governments were quickly and almost immediately undermining that privilege. And perhaps in the worst way. Why is it the case that the journalist source protection applies to questioning in front of a Supreme Court judge but not to questioning behind closed doors in one of these ­secretive investigative bodies?

I’ve been in a number of these secret hearings before with ­journalists who have had to be very brave and risk convictions and jail. Whether it be the Aust­ralian Crime Commission or the IBAC, the rooms where these hearings take place are of themselves intimidating.

You just about always have to hand over your mobiles and go into a hearing room which always has no windows and is often underground. And even though journalist don’t have any source protection under the law, they don’t give up sources.

So what that means is our legal structures that undermine the source protection legislation really serves one purpose. To ­imperil journalists. And that is clearly not in the public interest. And it must change.

Justin Quill is a media lawyer with Macpherson Kelley, who act for Nationwide News Pty Ltd, publisher of The Australian

To read the original article, click here (paywall).

This article was written by Justin Quill, Principal Lawyer – Litigation and Dispute Resolution | Media.

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Journalists’ confidential sources: Free speech under attack

31 July 2016 Gavin Lower e: gavin.lower@mk.com.au d: 03 9208 9891 m: 0414 796 726

Article source: The Australian

Rights are being eroded or res­tricted through various means and the war for free speech is being waged on a number of different battlegrounds.

But the attack on our rights to free speech that I’m most concerned about is happening ­secretly. And that’s why it is most concerning. It comes in the form of an attack on journalists’ rights to keep sources confidential.

Government-run, taxpayer- funded semi-secretive but very powerful organisations are undermining our free speech. And without most of us even realising.

The concept of free speech has many aspects to it. Free speech encompasses not just your right to speak — but your right to hear. If there is a right for someone to impart information, then there must be a corresponding right to receive that information.

That’s why journalists rights to free speech are so important. Not because of the journalist. But ­because of you — because of your right to be informed by the ­journalist.

Effectively, attacking journalists seeking disclosure of their sources is attacking your right to know.

When journalists are restricted in what they can exposure it means the public will be less informed. Whether it be corruption, hypocrisy or public safety issues, the public’s right to know is crucial and so the journalists rights to free speech are equally crucial.

The most important way journalists exposure these important matters to the public is through tip-offs and leaks. Whether it be Watergate that brought down the United States president or the Khemlani Loans affair that brought down our government all those years ago, leaks are crucial to the way journalists and media work.

I once acted for brave then News Corp journalists Michael Harvey and Gerard McManus, who were both found guilty for not revealing a source to the Victorian County Court. Their crime was really that they had embarrassed the state government by exposing a plan to take away war widows pensions.

The government wasn’t happy with the bad plan being exposed. An inquiry happened and a man believed to be the source was charged. Harvey and McCanus refused to give evidence against him. But why should they have had to imperil themselves for just doing their jobs. And doing them well. Corrupt police or politicians don’t want to be exposed. Governments don’t want to be embarrassed. And dodgy businessmen will sack any employees who ­expose them. So the only way a journalist can expose these ­people is with confidentiality.

When journalists don’t receive protection for keeping their sources confidential, it means sources become nervous. And if a source is nervous, they’re less likely to come forward. This is commonly known as the chilling effect. Our legislative structure around journalists and their sources encourages the chilling effect. That’s because of the proliferation of secretive investigatory bodies and the expansion of their powers.

In Victoria there is the ­ind­ependent broadbased anti-­corruption commission (IBAC), NSW has the Independent Commission Against Corruption (ICAC), there’s the Tasmanian Integrity Commission, the Queensland Crime & Corruption Commission (QCCC) and the ­Office of Chief Inspector within Queensland Corrective Services. Over in the west we have the Corruption & Crime Commission (CCC) and in South Australia there’s the independent Commissioner Against Corruption (ICAC — SA). And just because that’s not enough, we have the federal bodies such as the Australian Criminal Intelligence Commission (ACIC, formerly Australian Crime Commission) and the ­Australian Security Intelligence Organisation (ASIO). And that’s not to mention the Australian Commission for Law Enforcement Integrity (ACLEI), the Inspector-General of Intelligence and Security (IGIS) the Australian Transaction Reports and Analysis Centre (AUSTRAC).

You might be surprised to read this, but I could go on. It is critical that although Australia has had for a number of years a protection — albeit a limited one — for ­journalists wanting to keep a source confidential, for the most part that protection is automatically overridden by the legislation establishing many of these ­bodies. For example, section 37 of the ICAC Act and section 145 of the IBAC Act in Victoria specifically provide that the journalist source legislation does not apply to questioning by IBAC or ICAC.

The protection normally afforded to journalists can be found in the Evidence Act of particular states and the Commonwealth. Not all states have the protection. Queensland for example has none.

The protection is in the form of a replaceable presumption in favour of the journalists right to keep a source confidential.

A judge can oust the pre­sumption if he or she considers the public interest in disclosing the source outweighs the impact on the source and the general ­impact on the ability of journalists to obtain information in the ­future.

So the legislation effectively acknowledges the possibility of the chilling effect and requires a judge to take it into account. It is a reasonably powerful protection mainly because the onus is on the party seeking disclosure.

So while journalists rejoiced in the source protection they were given, governments were quickly and almost immediately undermining that privilege. And perhaps in the worst way. Why is it the case that the journalist source protection applies to questioning in front of a Supreme Court judge but not to questioning behind closed doors in one of these ­secretive investigative bodies?

I’ve been in a number of these secret hearings before with ­journalists who have had to be very brave and risk convictions and jail. Whether it be the Aust­ralian Crime Commission or the IBAC, the rooms where these hearings take place are of themselves intimidating.

You just about always have to hand over your mobiles and go into a hearing room which always has no windows and is often underground. And even though journalist don’t have any source protection under the law, they don’t give up sources.

So what that means is our legal structures that undermine the source protection legislation really serves one purpose. To ­imperil journalists. And that is clearly not in the public interest. And it must change.

Justin Quill is a media lawyer with Macpherson Kelley, who act for Nationwide News Pty Ltd, publisher of The Australian

To read the original article, click here (paywall).

This article was written by Justin Quill, Principal Lawyer – Litigation and Dispute Resolution | Media.