Imagine you came across information that revealed corruption in your workplace, but were afraid that speaking out could cause you to lose your job, your reputation and even make you liable for criminal charges.
You feel that the information is very important and that you have an obligation to bring it to light. Although apprehensive, you might decide to share the information with a journalist in exchange for a promise of strict confidentiality.
But would you come forward if you knew that a court could force the journalist to disclose your details?
Whistleblower laws
When employees come across crime or corruption, it is in the public interest that they speak out without fear of reprisal.
But as Freya Newman discovered not long ago, ‘whistleblower laws’ do not offer complete protection, which means that people can face severe consequences for speaking out against conduct that they uncover.
Many thought that Newman would be protected when she sought to expose a suspicious scholarship grant to the Prime Minister’s daughter, but this was not the case.
And now that the limitations of whistleblower laws are well known, it seems less likely that people will report corruption to authorities for fear they might be charged themselves, like Newman was.
Journalist Code of Ethics
Journalists have a Code of Ethics which prevents them from revealing the identity of sources that have been promised confidentiality.
Without this protection, some might not come forward to report corruption, which would clearly be against the public interest.
But can journalists be forced to reveal their sources?
Back in 2007, two journalists faced criminal charges because they refused to reveal their sources of information for an article that was published in the Sun Herald.
The pair wrote an exclusive story about a Federal Government decision to reject a $500 million increase in war veteran entitlements.
It caused outcry in the community and embarrassment for the government. After the negative press and criticism, the government shelved its planned rejection of the increase.
The whistleblower was a man employed by the Department of Veterans Affairs. He was reportedly already on trial for breaching section 70 of the Commonwealth Crimes Act 1914, which makes the disclosure of certain documents or facts a criminal offence. However, both journalists refused to admit their source and were charged with criminal offences themselves.
Both pleaded guilty and, although relieved to avoid prison, they were disappointed to receive criminal convictions for simply doing their job and acting in the public interest.
The judge said that journalists were not ‘above the law’, and fined each of them $7,000.
Defendants in criminal trials have a right to silence, but there is no equivalent right for witnesses, although there are circumstances where a person may be excused from giving certain types of evidence.
There was no specific legal protection for journalists in 2007 when the Sun Herald reporters were charged. But now, reporters can rely on ‘journalist privilege’ to avoid disclosing their sources in certain circumstances – although the protection it offers is not absolute.
What is journalist privilege?
‘Journalist privilege’ is an amendment to the Evidence Act which essentially provides that a journalist is not required to disclose their source if they have promised to keep it secret, unless the court finds that it is in the public interest for the source to be revealed.
The privilege is contained in section 126K of the Evidence Act which says that journalists who promise confidentiality are not compellable to give evidence that would identify the informant, or would allow their identity to be ascertained.
But the protection is discretionary, and it is up to the court to decide whether or not to force a journalist to disclose their source. If a party applies for the privilege to be removed, the court will then determine whether the public interest in disclosing the source outweighs:
- Any adverse effects that disclosure could have on the informant; and
- The public interest in the communication of facts and opinion to the public and the ability of the news media to access sources of fact.
What happens if a journalist is compelled to give evidence?
If the court overrules journalist privilege, the journalist is then required to disclose the source of their information, even if it means breaking their promise and breaching their Code of Ethics. If a journalist refuses, they may be held in contempt of court and face a fine or even imprisonment.
Journalist privilege is not just about protecting journalists – it ensures that whistleblowers and confidential sources are able to provide important information without being punished. The exposure of corruption and illegal conduct not only serves to promote justice but also aims to deter unscrupulous individuals and organisations from engaging in such activities in the future.
