Confidentiality of sources in Australia
Court threat to free speech
Sydney Morning Herald Editorial 26 August 2005
Governments leak. Ministers and their staff leak, and so do government departments. Some leaks are selfish, others selfless. Whether from the Coalition or Labor, the leak is integral to political life; it exposes dark secrets to the sunlight of public scrutiny. Leaks exemplify the freedom of expression vital for democracy. Yet in Australia that freedom is under threat from the Federal Government. Two Canberra-based journalists, Michael Harvey and Gerard McManus, are facing jail for refusing to reveal the source of a story that greatly embarrassed the Government. No doubt the Government's embarrassment is their principal offence.
In February last year the journalists revealed in Melbourne's Herald Sun newspaper leaked information that the Government planned to deny war veterans a big increase in benefits. Following the revelation, the plan was dropped and the Veterans Affairs Minister, Danna Vale, lost the portfolio. A senior public servant is now in court charged over the leak. However, Harvey and McManus have told the court that in keeping with the journalists' code of ethics, they cannot reveal if the public servant is their source. Consequently, they face charges of contempt and could be sent to jail.
Harvey and McManus are upholding the ethical practice that journalists must protect their sources; that when journalists promise to keep an informant's identity secret, they have a moral obligation to do just that. Beyond the moral obligation, protecting sources is also a practical necessity. If informants could not rely on journalists to keep a confidence, there would be fewer whistleblowers, the public would be less informed and political life would be the poorer. Unfortunately, Australian courts do not generally recognise the obligation of journalists to protect their sources. In NSW, however, judges can excuse journalists when their legal obligation to testify conflicts with their duty to protect informants. But even when judges have such a discretion, governments must still exercise restraint before putting journalists on the spot. Protecting freedom of expression demands that governments proceed cautiously. They should not challenge journalists to reveal their sources unless absolutely necessary - perhaps in matters involving national security. The present hearing is plainly not such a case.
Pursuing the public servant is one thing; pursuing the journalists quite another. It is a blatant case of shooting the messenger. The singling out of Harvey and McManus among the steady stream of leaks to the media is selective and appears vindictive. In the interests of a free media and an open society, the Federal Government should terminate this witch-hunt immediately.
