LAST week the chairman of the Press Council, Professor David Flint, called for an attack on the contempt law that fines and jails journalists for refusing to disclose confidential sources.
He thought the use of the implied freedom of political communication in the Constitution enunciated in the High Court last year should be used to this end. That freedom was used to strike out the Federal law restricting political advertisements in the electronic media at election time.
At the time the case came down, commentators thought it would be used in other cases to expand the right of free speech. It was fairly clear, however, that it could not be used to attack defamation laws because they provide, albeit in a very limited form, defences that enable free political communication. They strike a balance between an individual’s right to reputation against the public right to know, even if cogent arguments could be made that the balance is too heavily weighted in favour of the former. Further, communication is not prohibited before the event, it merely has to be justified afterwards.
It has remained uncertain exactly which direction any expansion of the new-found freedom would go. If it could not free up the defamation law, it was difficult to see how it would help freedom of the press other than as a shield against future government action. Professor Flint’s suggestion, which he admits is drawing a long bow, however, shows how the new freedom might be used to that end.
The argument in favour of protecting the confidentiality of sources runs as follows. A free press cannot restrict itself to publication of material from official or named sources only. People who see illegality and improper conduct about them will, in conscience, wish to see that conduct exposed. However, they will often only be willing to expose on condition of anonymity for fear of reprisal. Reprisal can take the form of loss of job, physical injury, harassment, financial disadvantage or danger to family. Those whose illegal or immoral conduct is exposed have great incentive to indulge in intimidation and reprisal against those who expose them. Moreover, having indulged in the original illegality or immorality they have shown a propensity towards that sort conduct, indicating they would indulge in it again to secure a cover-up or to seek revenge.
If anonymity is not protected, people will not give information of evil conduct and the conduct will not be exposed. This cannot be in the public interest.
At present, it would be fair to say that people giving material to journalists in confidence will not have that confidence betrayed. That is not because the law demands it, but because journalists will defy the law if necessary to ensure it. The law puts the right of people engaging in litigation to know the source of material ahead of the public interest in protecting the anonymity of sources so that information about evil-doers will continue to flow.
The law upholds the right of litigants, even in civil cases, above the right of sources to remain confidential. Often the source of the information has been quite immaterial to the civil cause at issue. The seeking of it, more often than not, has been aimed at silencing it, or intimidating it.
Judges have said they cannot understand how journalists can put themselves above the law. Most journalists put in that position are law-abiding citizens, but have to follow the dictates of conscience. History shows the law is often wrong and conscience right. History often corrects the imbalance. On this issue it has done so in the US. If Professor Flint’s long bow hits it target it will be corrected in Australia, too.
He may find it not to be such a long bow. The implied freedom of communication in Australia was expressed in two cases last year. One was the political advertising case. The other, interestingly, was a contempt case. In the contempt case, Max Newton, in The Australian, dared to say the labour market controls were enforced by “”a corrupt and compliant judiciary in the in the official Soviet-style Arbitration Commission.”
Boo! So what?
The The Australian was charged with contempt. The High Court held Australians are entitled to criticise the institutions of government. The contempt provisions prevented this freedom.
It is perhaps only a medium-length bow to argue from that, that the constitutional freedom of political communication would be infringed if a law demanded the divulging of confidential sources in a way that would intimidate others from coming forward in the future, thereby preventing the free flow of information.
It may be that some more cases will have to go to the High Court. Unlike the fall-out from the High Court’s Mabo decision on Aboriginal land rights, there has been precious little political will-power to build on the High Court’s free-speech decision. Journalists will have to start drawing their bows.