Yesterday was a grim day for Australian journalism with a court verdict that effectively means public servants will have to be crazy brave just to take telephone calls from journalists.

Ugliest of all, the journalists concerned in the case have escaped serious pressure while their alleged source has been left to fry.

All this is not the fault of the journalists, but by fiat of the Commonwealth Director of Prosecutions and senior management in the Australian Federal Police, who made a series of what can only be seen as expedient decisions.

Naturally, if the journalists had been put under pressure there would have been a hullabaloo and a political stink.

As it is, the media have been astonishingly light-on in its coverage of this crucial case. The Australian at last did it big and well today and there has been some other publicity, but for the most part the media seem to have been keeping clear while the alleged source went down, and the public interest with him.

It’s not a good look – either for the media or for the legislators and legal system.

So what is it all about? Former Customs Officer Allan Kessing was yesterday found guilty in Sydney’s Downing Centre District Court of having leaked reports on customs security to The Australian in May 2005. The leak was undoubtedly in the public interest. The reports had been buried. Once revealed, they led to the biggest shake up of airport security in Australian history.

Kessing plans to appeal, but if the verdict stands it has devastating implications for journalists and whistleblowers.

The two Australian journalists involved in this case, Martin Chulov and Jonathan Porter, behaved entirely ethically. They did not give up their source and refused to cooperate with the investigation that led to Kessing being charged.

Yet thanks to the DPP and the Federal Police, the result of the Kessing case is that the journalists have escaped pressure while their alleged source has been left to spend his retirement nest egg on defending himself, and now faces up to two years in jail.

There were several points during the trial when it became clear that decisions had been made at senior levels not pursue the journalists, with all the publicity and opprobrium that might have brought.

In legal argument in the absence of the jury, it was revealed that the Commonwealth Director of Public Prosecutions had decided not to pursue a subpoena against Chulov and Porter.

And during evidence from Federal Agent Andrew Perkins, the jury was told that senior management in the Australian Federal Police decided not to go ahead with a search warrant for the offices of The Australian although the results could have helped with the investigation.

But search warrants were executed at two premises used by Kessing.

Crikey asked the DPP why the decision had been made not to pursue the subpoena against Chulov and Porter, and received a one sentence response. The matter was not pursued because the journalists were not “required” by either the prosecution or defence.

Yet their evidence was clearly relevant.

The failure to call or to search The Australian journalists left what the Crown acknowledged was a circumstantial case against Kessing. It was established that he had a copy of the leaked reports, that he had Chulov’s card, and that he had been in telephone contact with The Australian.

The jury took three days to reach its verdict, asking several questions and acknowledging it was having difficulty. The judge directed that they were not to take into account the public interest in the leak.

We can be forgiven for thinking that the true explanation for the DPP and Federal Police decisions is expediency and the knowledge that, as indicated in the case of McManus and Harvey the Federal Government is drafting legislation to protect journalists who refused to reveal their sources in court.

Of course it is good that the The Australian escaped punitive action, but shield laws for journalists will be meaningless if the sources – or those suspected of being sources – are left at the mercy of a punitive government.

Journalists should now be mounting a campaign for proper protection for whistleblowers. That is more important than saving journalists from pressure.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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