Helen Liu, the Chinese-Australian businesswoman at the heart of alleged national security concerns surrounding former Minister for Defence Joel Fitzgibbon, has taken legal action in the New South Wales Supreme Court in an attempt to find out the sources of information given to Age investigative reporters Nick McKenzie and Richard Baker.

Liu, who has not sued The Age, has asked the court to force disclosure of the sources so she can consider taking action against them.

The Age’s lawyer, Peter Bartlett of Minter Ellison, gave evidence in court this morning about The Age investigation, and was questioned about whether or not he knew the identity of the sources. He said he did not.

The Age has argued that the sources should be protected under the principle established in the landmark High Court Lange case, in which discussion on government and political matters is held to have a qualified privilege due to implied rights to freedom of speech in the Australian constitution.

And in a move likely to anger reporters nationwide, the NSW Attorney General has intervened in the case arguing against this, saying that current NSW laws are adequate and should not be read down in the context of the constitution.

The case is the latest to highlight the argument for shield laws to give reporters some legal recognition of their ethical obligations to keep secret the identity of confidential sources.

In recent weeks, the Victorian Attorney General, Rob Hulls and Independent Federal MP Andrew Wilkie have both signalled an intention to move on shield laws.

As previously reported in Crikey, the cause has also been advanced by an important European case, in which the European Court of Human Rights described journalists’ right to protect their sources as fundamental to freedom of expression.

There have been a number of cases before the courts in Australia  in recent times raising the issue of protection of sources. Indeed, senior News Limited personnel are taking credit for Hull’s recent moves in the area, which I understand were prompted in part by a Herald Sun reporter about to be  “put on the spot” in court.

There is also the troubled “Ozleaks” case concerning the Australian’s reporter Cameron Stewart and his Operation Neath scoop of August last year, in which he published details of an anti-terrorism operation on the very day that raids were conducted and arrests made.

The Victorian police officer accused of being Stewart’s source, Detective Senior Constable Simon Artz, is due to appear in the Melbourne Magistrates Court next week on eight charges including leaking to Stewart.

Meanwhile  an investigation of the role of the Australian Federal Police in dealing with Stewart is the subject of a near-completed report by the Australian Commission for Law Enforcement and Integrity. Expect to hear more about this soon.

Stewart is understood to have given an affidavit which will be used in the case against Artz, who is being prosecuted by the troubled Victorian Office of Police Integrity.

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey