The protection of a source is of paramount importance to a journalist … but, it can be just as important for a litigant to determine where a leak has come from so that it can be plugged – and quickly.
Until recently, when a Court required a journalist to identify a source, the journalist was usually required to provide the information unless a privilege (like the privilege against self-incrimination) could be relied on. There was no specific privilege that protected a journalist’s source. This meant that a journalist who withheld a source’s identity could be in contempt. To soften this, the Commonwealth, NSW, Western Australia, Victoria and the ACT recently enacted ‘Shield laws’ which amend the relevant Evidence Act to allow, in certain circumstances, a journalist not to disclose a source.
The WA laws were tested in the 6 August 2013 decision of the Western Australian Supreme Court, which set aside a subpoena issued by Gina Rinehart’s company, which required a journalist to produce documents that could reveal his source.
The Rinehart decision
Ms Rinehart’s company, Hancock Prospecting Pty Ltd, was involved in an arbitration dispute with other members of Ms Rinehart’s family. Hancock Prospecting issued a subpoena to journalist Stephen Pennells, and his employer, West Australian News, requiring production of documents that had been provided to him by Ms Rinehart’s son, John Hancock.
Mr Pennells and West Australian News applied to set aside the subpoena and relied on, as one of the grounds, a Shield Law contained in s20I of the WA Evidence Act. In order to be protected by this provision:
- The information must disclose the identity of a person, or permit that person’s identity to be ascertained;
- The information must identify an ‘informant’;
- It must be the case that a journalist promised the informant that he or she would not disclose the informant’s identity.
In finding that the subpoena should be set aside, Justice Pritchard said that there was “evidence that disclosure of the identifying information would involve requiring Mr Pennells to breach a fundamental ethical obligation. In addition, there is the strong public interest in the communication of factors and opinions to the public by the news media and in the ability of the news media to access sources of facts“.
This is a hot topic and will certainly be the subject to further Court decisions. In particular, Ms Rinehart’s company has recently issued a subpoena to Fairfax journalist Adele Ferguson (read more here), seeking similar types of documents to the ones sought from Mr Pennells. The Commonwealth shield laws were also recently considered in the high profile dispute between James Ashby and the Honourable Peter Slipper (see here).
Not all journalists are covered by these laws though. Queensland journalists are not as lucky as their Southern and Western colleagues as Queensland does not have any Shield Law comparable to the jurisdictions mentioned above. It does have the Public Interest Disclosure Act 2010, but this Act is geared more towards whistleblowers in the public sector rather than creating a basis for a journalist to protect a source.
However, this inconsistency may not be around for long as in June 2013, the Federal Attorney General, Mark Dreyfus QC announced that the Commonwealth Government would pursue uniform national protection for journalists and their sources at the next Australian and state and territory law and justice ministers meeting (read more here).