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Shield laws on trial in Peter Slipper case

When shield laws for journalists sailed through federal Parliament last year, they were greeted with near universal whooping and hollering.  Whistlebowing MP Andrew Wilkie hailed the legislation, which allows journalists to protect confidential sources when called before the courts, as a “victory for freedom of speech”. The Greens, the Liberal Party and Labor — in a rare show of unity — agreed. The media, which has more than a little skin in the game, subjected the laws to far from vigorous scrutiny.

What almost no one — with the exception of journalism academic Matthew Ricketson — pointed out was that shield laws, while brilliant in theory, can be diabolically difficult to apply in the real world.

Should a journalist be allowed to protect a source if their story endangered national security? Should a source be protected even if they were seeking confidentiality for personal gain, rather than to expose wrongdoing?

These are the thorny issues that arise when shield laws get put into practice.

And so it is with the Peter Slipper case, which today provides the first test of the laws since their introduction.

The Commonwealth has demanded that News Limited journalist Steve Lewis hand over all communications with James Ashby, the former political staffer who has accused Slipper of s-xual harassment, between February and April this year. Lewis’ legal team is fighting the subpoena on the grounds that he should not have to reveal his confidential sources.

Steven Rares, the judge in the Slipper case, now has a decision to make. A decision that will prove a fascinating and, potentially, highly significant one — both for the Slipper case and for future applications of the shield laws.

The Evidence Amendment (Journalists’ Privilege) Bill requires Rares to consider whether the “public interest in the disclosure of evidence” outweighs “the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts”. He is also empowered to consider whether forcing Lewis to reveal his sources would have adverse effects for anyone involved.

The legislation, in its written form, gives high priority to journalists’ obligation to protect the confidentiality of their sources. According to an explanatory note, it does not matter whether the piece of journalism offers a weighty contribution to our democratic system or not: “There is no capacity for the court to consider the worth of the individual piece.”

That seems to be in Lewis’ favour. He doesn’t have to argue that exposing the allegations against Slipper was an act of Watergate-style journalistic heroism.

On the other hand, judges have not traditionally been the journalist’s best friend. And the Commonwealth, no doubt, will argue that the public interest in the administration of justice outweighs Lewis’ obligations to his sources. The correspondence between Slipper and Ashby is crucial to its argument that Ashby’s case should be thrown out of court because of his dealings with Lewis and various Liberal National Party figures.

A further complication is whether Lewis has an obligation to protect a source whose identity has already been exposed. His legal team argued this morning that the subpoenaed documents could reveal the identity of another confidential source besides James Ashby. Judge Rares said there is an argument that a journalist could be compelled to provide information if “the cat’s already out of the bag”.

The case continues.

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  • 1
    The Pav
    Posted Friday, 13 July 2012 at 2:34 pm | Permalink

    It is a call to hand over his communication with Ashby.

    The “source” is blown. How does protection of a confidentail source exists
    when the source is already know.

    Is the journalist really claiming professional privilige?

    Confidentiality in this case is a blind. They are trying to hide behind it.

    Perhaps they are concerned the truth will reveal unprofessional
    conduct and colusion, perhaps even conspiracy

  • 2
    CML
    Posted Friday, 13 July 2012 at 4:23 pm | Permalink

    @ THE PAV - Absolutely right on! As far as I can tell from the media
    stories, Lewis is only being asked to provide details of his dealings
    with Ashby - no one else. So, what’s the problem? There is no
    “confidential source”. We all know about Ashby.

  • 3
    Hugh (Charlie) McColl
    Posted Friday, 13 July 2012 at 4:40 pm | Permalink

    It’s not a bad ruse by Lewis’s lawyers. We might ‘all know’ about Ashby but we don’t ‘know all’ or at least, not enough. What we don’t know, what has not been made public, may not be available from anyone but ‘the source’. If the source is legally protected by the shield laws then the confidentiality thing cuts both ways. Don’t you just love deft legal manoeuvring?

  • 4
    The Pav
    Posted Friday, 13 July 2012 at 4:43 pm | Permalink

    Hmmm Charlie

    Good thought.

    Perhaps that’s why they want it kept confidential.

    If the whole lot came out then perhaps it might look like a fit up?

    Not that anybody from News Ltd would be involved in anything unethical w,=…would they?

  • 5
    Madonna Airey
    Posted Friday, 13 July 2012 at 5:58 pm | Permalink

    Matthew thanks for the story on Shield Law- Australia does not have the same protection for journalists as the US.
    The Peter Slipper case is interesting, more so as the case unfolds, however best to keep my opinion to myself on this one.
    Re: Shield Law
    For me this is an interesting and timely topic for discussion.
    I am currently writing an essay on whether a journalist should be protected from revealing sources in court.
    When I started to unpack the question and began research,I asked myself the same question - what if it was a matter of national security?
    Initially I felt if I was in confidential situation I would want to protect my source/s at all costs… even if it meant contempt of court( for the right story).
    Then I asked the question - what if it was a matter of National Security?
    The answer was easy - a resounding NO…exception to the rule.
    Inasmuch as I would not perform an illegal act in the name of journalism just because my boss asked me. Ethics do not have a $ value - not for me anyway.

  • 6
    CHRISTOPHER DUNNE
    Posted Friday, 13 July 2012 at 6:24 pm | Permalink

    A journalist colluding to commit an attack on an MP to then bring down a government hardly warrants protection, in my opinion. Lewis might try and hide behind this shield, but Ashby and Brough cannot.

    This has a long way to run, but already feels like Godwin Grech redux.

  • 7
    AR
    Posted Friday, 13 July 2012 at 9:59 pm | Permalink

    Lewis is not being subpoenaed as a journalist but as a player, if not actually a conspirator, so privilege should be irrelevant.

  • 8
    Mack the Knife
    Posted Friday, 13 July 2012 at 10:49 pm | Permalink

    I wonder how much hand wringing and doubts is going on in the H R Nichols Society (which is funding both the Craig Thomson and Slipper affairs) that they perhaps shouldn’t have started this ball rolling?

    About time Pyne, Abbott and others from this organisation were formally investigated in what is turning into another Godwin Gretch effort? After all, it is all intended to bring down a government.

  • 9
    Merve
    Posted Saturday, 14 July 2012 at 11:38 am | Permalink

    Hacked by Caho? Is Crikey being leant on by the russian mafia?

  • 10
    Posted Sunday, 15 July 2012 at 7:46 am | Permalink

    Legislation is a Bill before it is passed and an Act once it has been enacted. Each Australian Act specifies its title which includes the year in which it was passed. So the reference should have been to the Evidence Amendment (Journalists’ Privilege) Act 2011.

  • 11
    geomac62
    Posted Sunday, 15 July 2012 at 12:45 pm | Permalink

    Hard to see why Lewis should be exempt from handing over his details . There is no whistleblower to protect or public interest such as health , national security involved . Ashby in collusion with others acted out a very public and calculated charge on Slipper without going through the established protocol . Lewis cannot even claim the established protocol for complaint failed Ashby as a reason to withhold data . If his files regarding communication implicate others then more reason for disclosure as the law is to shield information contacts not co conspirators if that is the case here . I doubt that the law or a judges interpretation of it would see Lewis concealing anyone other than Ashby as reason to withhold data . Anyone else than Ashby would have to be a case for exposing rather than hiding and in the public interest .

  • 12
    Hugh (Charlie) McColl
    Posted Sunday, 15 July 2012 at 2:45 pm | Permalink

    GeoMac62, if you accept that Lewis was acting as a journalist then he is entitled to (attempt to) protect his source/s. He has claimed there is a source other than Ashby. Are you suggesting that Lewis must reveal the identity of this ‘other’ source regardless of the consequences for that source? If so then you don’t appear to agree at all with the shield laws.

  • 13
    geomac62
    Posted Sunday, 15 July 2012 at 8:13 pm | Permalink

    Hugh
    I thought that the shield laws were to protect whistleblowers or other similar sources in that aspect that a journo needs to protect to gain information . I see no reason for that law to protect what looks like a premeditated campaign to discredit a MP . Consider the public way Ashby went about his accusation and his collusion or if you like collaboration with Lewis , Brough and most likely Pyne . Is Lewis acting as a journalist unveiling something in the public interests or acting like a journalist using his sources to collaborate and at the same time get financial gain for his work ? Of course its also worth noting that the same journo has previous form . I agree with protection for things like the Patel exposure or police corruption not what can only be described as sleezebag tactics without any attempt to go through established channels . The irony is Ashby or the opposition asking for the matter to be left to the courts while all did the exact opposite when the charge was first disclosed . Lewis maybe a journo by trade but his involvement in this matter bears no semblance to the shield laws .

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