The code of ethics of the Media Entertainment and Arts Alliance (the journalists’ union) says, “Where confidences are accepted, respect them in all circumstances.”
Maybe the MEAA code goes too far. I cannot see why confidences should be kept in ALL circumstances. Someone might tell you of a threatened act of violence or breach of the law. You might then have a duty to disclose the source if that was the only to prevent the violence.
But, in general, confidences should be kept because it is in the public interest that journalists keep confidences. If they do not, sources will dry up and so will the flow of information.
Chief Minister Jon Stanhope is not a journalist, but confidentiality principles apply to politicians as well.
Important flows of information – particularly between levels of government — will dry up if politicians do not respect confidences.
So was Stanhope wrong to put the draft terrorism law on his website?
Well, it depends on the timing and nature of the confidence and the over-riding public interest.
Timing is important. To be binding you need to extract the agreement on confidentiality before handing over the information. You cannot impose a confidence upon someone after you give the information. When information is given verbally, you have a sequence: a request for confidence; an acceptance that the confidence will be respected; and the giving of the information.
Nor can you impose a confidence at the same time as giving the information, for example when handing over documents.
My understanding is that when the Prime Minister’s office provided the draft legislation it was accompanied by a letter. The letter did not mention confidentiality, but the draft legislation had something similar to the following words on it: “This draft is supplied in confidence and should be given appropriate protection.”
Maybe the Prime Minister’s office should have got the confidence first.
It also raises the further point about what was the nature of the confidence.
Journalists and their sources often get into strife over the nature of their confidences. They use woolly expressions like “off the record”, “background information only”, “for your information only” and so on. What do these expressions mean? Often, they mean different things to different people.
People giving information to journalists should make clear two things: what can be published and how can it be attributed.
People giving confidential information to non-journalists should make clear to whom (if anyone) can the material be given.
“Off the record” might mean that the material can be published, but not attributed to the source. “Background” might mean that the material cannot be published, or it can be published unattributed or that it can be published attributed in only a general way, such as “industry sources”, or whatever. It is better to sort out what you mean rather than relying on woolly phrases.
The Prime Minister’s office relied on the words “appropriate protection”. What does that mean? People in the Prime Minister’s office must have thought they meant a different thing from what Jon Stanhope thought they meant.
Stanhope obviously thought “appropriate protection” for a draft Bill meant that all the people who might be affected by the Bill should have a chance to look at it. And what better way to achieve that than putting it on a website?
It seems to me that it is in the public interest that draft laws be published to those people who will be affected by them if they are enacted. What is there to hide? There can be no national security question when dealing with legislation. Confidentiality is often invoked in the name of the protection of national security when is what is really being sought is protection from political embarrassment or public scrutiny.
Legislation should be discussed in public, especially legislation affecting civil liberties. The people affected need to be convinced that it will be worthwhile. Perhaps the best example of this in Australia was the legislating away of civil liberties in order to reduce the road toll. People now accept that police should be able to stop people and demand they give a breath sample even though the person is going about lawful business with no ground for any suspicion. People accept that they must wear seat belts or that they can be photographed at traffic lights.
But every piece of this legislation was debated long and hard. The result has been worthwhile. The road toll is now around 1800, down from more than 3000 in the early 1970s. We are looking at perhaps 30,000 or 40,000 lives saved.
On the other hand, the toll for political violence in Australia in the same period is less than 30. It is difficult to see how this anti-terrorism law can save any lives, given police have the power now to deal with acts of terrorism.
In any event the legislation in detail should be well-aired. The pattern of this Government is to air only the broad outline; deride any critics by telling them they should wait for the detail; then rush the detailed legislation through saying the matters have been well-debated. Well, it was in the public interest for Stanhope to put a stop to that.
Finally, a good public airing will enable views to be put on the constitutional question which the Federal Government has not answered and which I posed in an earlier column: how is it within the power of the territories to enact these laws? The Commonwealth says it needs the states to enact these laws because it does not have the power. This is because locking people up without charge for any time longer than it takes to bring them before a magistrate or judge (say, 48 hours) is part of the judicial power of the Commonwealth to be exercised only by judges – not police or ASIO agents.
Maybe the Commonwealth’s legislative power over the territories includes the judicial power. But maybe not. If the Commonwealth cannot enact these laws, logic suggests that its creature territories cannot either.