Confidentiality Of Sources
Friday, 09 September 2005The Australian Law Reform Commission, the NSW Law Reform Commission and the Victorian Law Reform Commission have released a joint discussion paper on their Review of the Uniform Evidence Acts. This includes a recommendation that all jurisdictions in Australia adopt the NSW Professional confidential relationship privilege.
The Alliance has responded to this discussion paper, supporting the recommendation that the NSW provision be extended to all jurisdictions and that the privilege be extended to subpoenas, discovery and similar legal processes.
The full Alliance submission is:
August 30 2005
The Executive Director
Australian Law Reform Commission
GPO Box 3708
SYDNEY NSW 2001
The Media, Entertainment & Arts Alliance seeks to comment on the Review of the Uniform Evidence Acts discussion paper.
The Alliance is the professional association and trade union that represents the interests of people working the media and entertainment industries, including journalists.
As I write, two journalists face charges of contempt of court arising out of a prosecution against a public servant under the Commonwealth Crimes Act.
This is not an isolated case. Since Tony Barrass was jailed in Perth in 1989, journalists have faced increasing pressure from the courts and investigators to reveal confidential sources.
Nor is Australia the exception. Right now, New York Times journalist Judith Miller is in jail over refusing to reveal a confidential source to an investigator.
The Alliance generally supports the uniform adoption of the New South Wales provision relating to professional confidential relationship privilege. The then-Attorney-General consulted extensively with the Alliance prior to introducing the legislation.
The NSW reforms arose out of the decision of Supreme Court Justice Abadee in ICAC v Cornwall 1 MLR 14. This was the first significant decision where the contempt prosecution had been dealt with as a statutory office.
As the discussion paper notes, there has been little litigation around this provision since it was adopted in 1997. As a result, it is not possible to tell whether this provision gets the balance right between the need for journalists to keep their sources confidential and the administration of justice.
However, there is a strong argument for not reinventing the wheel. It would be preferable for this provision to be adopted in all uniform acts, rather than argue around words that, at the end of the day, may not make the balance any clearer.
In Australia, journalists are bound by their Code of Ethics which says
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.
This is because if sources cannot speak to journalists with a confidence that their identity will be protected, then whistle blowers will be significantly less likely to expose wrong doing. The public will be significantly less informed.
It needs to be recognised that it is not certain that the NSW provision will prevent all future conflicts. But it will provide sensible guidance for courts where there is currently no protection for journalists.
Extension of privilege to subpoenas, discovery and similar legal processes
There is an urgent need for the extension of this privilege to subpoenas, discovery and similar legal processes. Indeed, most cases of contempt or potential have arisen at this stage of proceedings, rather than in the formal giving of evidence.
This was certainly the case for the case of Deborah Cornwall as it is in the case of Judith Miller.
The major case of confidentiality of sources in NSW since the 1997 Evidence Amendment (Confidential Communications) Act occurred when Master Richard Macready of the NSW Supreme Court ordered two journalists to divulge their sources for a story about the NRMA board. The NRMA sought an order in 2002 to divulge the sources to enable them to identify the leakers so that they could take legal action against them. The decision was appealed, but the case was dropped when the NRMA withdrew the action.
The Federal Government has used the Australian Federal Police subpoena powers to raid media organizations and have questioned journalists in a bid to identify whistle blowers to enable prosecutions to be launched.
All this illustrates the importance of extending this privilege to subpoenas, discovery and similar legal processes.
I have attached a copy of Turning Up The Heat: The Decline of press freedom in Australia 2001-2005. This report was published by the Alliance in May 2005 and includes details of these issues.