The implied freedom of political communication in the Constitution should be used to protect the confidentiality of journalists’ sources, the chairman of the Australian Press Council, Professor David Flint, said yesterday.
Professor Flint gave four grounds upon which a journalist was justified in disclosing sources: if the source agreed; where the journalist was satisfied that the source had misled the journalist for personal gain; if there was a life-threatening situation; if somebody’s innocence of a crime was at issue.
However, the courts were demanding disclosure on what he thought we unjustified grounds.
He was responding to questions about two journalists who face fines or jail for refusing to disclose sources. They are David Hellaby, of the Advertiser, Adelaide, and Deborah Cornwall, of The Sydney Morning Herald.
Mr Hellaby said this week that he would not disclose his sources of information about what he says was criminal conduct within the State Bank of South Australia, despite the expiry late last month of a 14-day period set by the High Court to satisfy bank discovery requests.
The South Australian Auditor-General, Ken MacPherson, delivered a 3000-page report into the bank on Wednesday.
The bank is considering suing Mr Hellaby for injurious falsehood over articles he wrote last July saying sources privy to the Auditor-General’s inquiry had told him of suspected large-scale criminal activity within the bank group, but that perpetrators would never be prosecuted because the state lacked the legal resources. The bank asserts it has suffered $500,000 in damages because of the article, which it says is untrue. It has asserted Mr Hellaby had no foundation for his article.
However, Mr MacPherson’s report foreshadowed that his second report could detail possible “”unlawful, corrupt or improper activity.”
Mr Hellaby allowed the bank’s lawyers to look at 1800 pages of documents on Wednesday in answer to the bank’s legal discovery request, but he said he would not reveal the sources.
It was now up to the bank to decide whether those documents satisfied their discovery request or whether they would return to the court to seek further orders.
Mr Hellaby unsuccessfully claimed privilege against disclosure of his sources in the South Australian Supreme Court and the High Court.
Mr Hellaby said, “”The bank will have to look very hard at this report before deciding whether to continue its case against me.”
Professor Flint condemned the law that has required the disclosure of journalists’ confidential sources saying it prevents the free flow of information and was not in the public interest.
In Ms Cornwall’s case, the NSW Independent Commission Against Corruption has ordered that she disclose the name of a policeman she quoted in an article as saying prisoner Neddy Smith was a police informer.
The commissioner, Ian Temby, QC, has concluded that Ms Cornwall had been misled by the source. Ms Cornwall says she is not satisfied the source actually misled her or intended to mislead her.
Professor Flint said only the journalist could determine whether the source had misled for personal gain.
The Media Alliance code of journalists’ ethics says, “”In all circumstances (sq bkts plse) (journalists) shall respect all confidences received in their calling.”
The Press Council has made several submissions to law-reform bodies on contempt.
Professor Flint said, “”It is unrealistic to argue for an absolute privilege.” But in coming to a decision about the competing interests, freedom of speech and freedom of the press should be an over-riding consideration.
As the law stood, the implied freedom of political communication found by the High Court in the Australian Capital Broadcasters case last year should be a new ingredient for Australian courts in considering whether to order disclosure.
So if a case involved the public or political affairs of the country, it would be a breach of that freedom if the court did not consider the freedom in balancing conflicting rights in contempt cases over refusal to disclose sources.
“”I may be drawing a long bow, but if we have this implied right we should exercise it and protect it,” he said. “”The new right will develop in time.”
It was appropriate to use it in a challenge against contempt findings in non-disclosure cases.
“”We would prefer the privilege to the prescribed in legislation, however,” he said.
In the past decade in Australia the courts in half a dozen cases have invariably ruled that there is a greater public interest in litigants, in defamation and other cases, knowing the source of material so they can present their cases than in the public interest in protecting the confidentiality of journalists’ sources so that others would not be reluctant to disclose what they see as iniquities in future cases.
In the US the courts have usually ruled the other way, relying the US Constitution’s guarantee of freedom of the press.