Thousands of Australian war veterans have two journalists and a public servant to thank that their entitlements were not slashed by the Federal Government last year by $500 million.
The public servant – obviously disgusted at the meanness of the Government — leaked the proposal to Michael Harvey and Gerard McManus of the Herald Sun who promptly published.
The Government – without the help of spin and misleading advertising campaigns – was caught. It had to abandon the scheme. But it did not abandon the witchhunt against the leaker and the journalists which moved one pace ahead this week in a way that could develop into a major test of freedom of speech in Australia.
The Government sent in the cops to find the source of the leak. The valuable resources of the Australian Federal Police, which would be better spent chasing terrorists or even speeding motorists in Canberra, were unleashed to chase a public servant who embarrassed the Government. There were no questions of national security or threat to life or limb – just a threat to the ego of the Howard Government and its pervasive media management.
The police trawled the records of several thousand emails and phone calls and they charged Desmond Patrick Kelly under the Federal Crimes Act with leaking official information.
Section 70 of the Act makes it an offence for a Commonwealth officer to communicate any fact or document which comes to his possession by virtue of being a Commonwealth officer. The penalty is two years’ jail.
The Government is determined to stop unauthorised leaks, even though it is a persistent leaker itself, when it suits it political interests.
Kelly was committed for trial in the Victorian County Court. Last month the two journalists were called to give evidence. When asked if they knew Kelly they refused to answer on the grounds that it might incriminate them (for illegally receiving the information).
The trial was adjourned. This week the journalists were given immunity from prosecution on the leak question and asked again about the sources of their information. They refused. The judge has now asked the Director of Public Prosecutions to draw up charges of contempt against them.
They face indefinite imprisonment or an open-ended fine.
Journalists have been fined and jailed in the past for refusing to divulge sources. Most cite the journalists’ code of ethics as propounded by the Media, Entertainment and Arts Alliance. It 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.”
But the code has no legal force, nor, even, do less-sweeping codes of individual news organisations.
It might be better if there were some exceptions to “all circumstances”, such as when physical harm is under threat. Nevertheless, the identity of confidential sources should be kept unless there are exceptional circumstances.
Most journalists would argue that the demands of a prosecutor in a witchhunt against a public servant are not exceptional circumstances. Some judges might disagree.
The law does recognise a wide range of confidential situations and will not compel witnesses to answer questions. Courts respect the confidentiality of communications between lawyers and clients and those between priests and confessors, for example. It is called a privileged communication. Members of Parliament also get privilege.
But not journalists, except in NSW where there is a limited privilege in cases of malfeasance which has divulged to authorities but not been investigated. Overall, however, there is no general privilege to protect journalists from being forced to divulge sources.
But, who knows, this very case might cause the creation of one, at least in political matters.
You see, there was more than one reason Kelly was charged under the Crimes Act. Sure, the Government wants to make life as miserable as possible for those who dare defy its media-management strategies. But even if it wanted to be less heavy-handed, it would be difficult.
In days gone by public servants accused of leaking were dealt with under the less draconian Public Service Act. But in 2003, Justice Paul Finn in the Federal Court of Australia delivered a pertinent judgment – one which struck a much-needed blow for freedom of speech in our usually restrictive legal environment.
The case was about a public servant, Peter Bennett, who was also a union official. Bennett had the temerity make public comments in what he saw were the interests of his members about departmental restructures and the like. His bosses moved to discipline him under the Public Service Act and Regulations. Regulation 7(13) of these made a sweeping prohibition against disclosing any information obtained by a public servant in the course of duty.
Finn held that Regulation 7(13) was invalid because it offended the implied constitutional freedom of political communication that is essential to representative government.
The freedom is usually invoked in defamation cases. This was new ground.
How splendid it would be now if an equally sagacious judge would find that the sweeping provisions of the Crimes Act under which Kelly has been charged were equally offensive to the freedom of political communication along with the contempt laws which require journalists to divulge sources.
These sorts of prosecutions should be restricted to cases of real national security or threat to life and property – not cases of threats to the Government’s political sensitivity.
And what a case to run. It is not one of salacious gossip or shock jockery. The story was not beaten up or sensationalised. Its publication resulted in benefit to a significant part of the Australian public. This freedom of speech and political communication is worth defending.
If Kelly goes down, public-service sources will be intimidated and dry up and Australians will be the poorer for it.