Shield Laws: Protecting Journalistic Sources

A recent post to the ABC's Media Watch site discusses in some depth the possible fate of three investigative journalists employed by The Age Newspaper by opening with the statement that "in the last 25 years three journalists in Australia have been sent to jail for refusing to betray their confidential sources to a court" and the claim that the possibility arises that  "three more will be added to that list".

The article is referring to the High Court's refusal to grant special leave in, The Age Company Ltd and Ors v Liu and Anor [2013] HCATrans 205 (6 September 2013) which may have harmed the prospects of journalists Nick McKenzie, Richard Baker and Philip Dorling, of the Melbourne Age seeking leave to appeal an order of the NSW Supreme Court requiring them to disclose their journalistic sources in a defamation case (see Liu v The Age Company Ltd [2012] NSWSC 12 (1 February 2012)).

The defamation proceedings relate to articles written in March 2009, by the journalists that eventually forced the resignation of the then Australian defence minister Joel Fitzgibbon. The articles focused on the politician Mr Fitzgibbon's friendship with a Chinese property developer Helen Liu, a person alleged to have links to Chinese military intelligence. The allegation were denied as was any impropriety and resulted in defamation actions. Additionally Liu sought a court order to unmask the source of the story so they could also be sued.

For the journalists, two arguments were used to oppose the order, namely;

• that Australia’s constitution implicitly guarantees freedom of political expression, and
• that the so-called "newspaper rule" exempted them from revealing their sources unless it was "necessary in the interests of justice".

These arguments failed to impress the High Court who refused leave to appeal. As a result, because Liu’s lawyers have indicated it is likely they will go back to court to have the order enforced, and the three journalists are likely to refuse to comply, the possibility arises that they will go to jail for contempt of court.

The protection of journalistic sources continues to be a vexed debate and the jailing of journalists could have results adverse for the public at large, as Media Watch says on its site: ". . . sources with genuine public interest concerns about corruption and abuses of power will think twice before contacting a journalist. And an editor will do the same before running a story that could see their paper embroiled in time consuming and expensive litigation."

However, it should also be borne in mind that in part the NSW Supreme Courts order that the three journalists give up their sources partly relied on the possibility that some of the documents were forged. Therefore, there is a balance between the right to uncover and investigate and the right to a proper defence that is able to uncover all the evidence.

Recent developments that may aid in providing clearer parameters are the relatively new "Shield Laws". At present there are six jurisdictions with "Shield Laws" to protect journalists (NSW, Victoria, Tasmania, the ACT, the Commonwealth and most recently WA).

In these jurisdictions the courts now operate on a presumption that journalists will not have to give up their sources either in pre-trial disclosure or in a trial. However these courts will be able to override that presumption and order disclosure but they will have to be satisfied that "the benefit of disclosure would outweigh any harm to the source, the journalist and the free flow of information".

South Australia, Queensland and the NT are still to enact Shield Laws and it should be noted that in the jurisdictions where they have been passed they differ in content and application. For example, most of these enacted laws do not protect bloggers or citizen journalists and often conflict with stronger secrecy laws applying to state and federal government information.

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•  Shield Laws Up, But Not Quite There (ABC Media Watch)
• The Age Company Ltd and Ors v Liu and Anor [2013] HCATrans 205 (6 September 2013)
•  Liu v The Age Company Ltd [2012] NSWSC 12 (1 February 2012)