During the rather polite police “raid” on The Age offices yesterday, investigative reporter Nick McKenzie is said to have asked the coppers who was the victim of the crime they were investigating. Observers say he was answered with a half embarrassed smile. “You are,” they said jokingly.
There are several significant things about yesterday’s raid. First, it demonstrates one of the several weaknesses in shield laws and the like. Do they, or would they, prevent the investigating authorities from seizing computers and other records?
At the end of their day in The Age offices, the coppers had not found what they were looking for. They wanted to take the hardware away with them. Seasoned media lawyer Peter Bartlett won an injunction to prevent them from doing so.
The judiciary, at least, thought the point about journalists’ sources worth a pause in the machinations of the law.
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Assuming that The Age is telling the truth about how it got the story about data bases maintained by the Labor Party, it is hard to see what charge could be laid against the paper or its reporters. The concern is, rather, the ease with which the data was able to be accessed by casual campaign workers, who then used their passwords to give access to The Age reporters.
And that was rather the point of the story, which (while I think it was a tad overplayed) had at its heart an undeniable public interest issue to do with privacy, and the consequences of political parties being exempted from privacy legislation.
The victims, of course, are supposedly the individuals whose privacy was invaded by The Age looking at their personal data. But those individuals would never have known the data was being collected if it were not for The Age’s story.
So maybe the real victims of the affair will be not the journalists, and not the individuals whose privacy was invaded, but the political parties that will have to deal with public outrage at how they use their exemption from privacy legislation.
The imbroglio again raises what has surely been the leading ethical issue in Victorian journalism this year — the obligations journalists have to protect their sources, and how that interacts with the jobs of investigative authorities. We have seen, in the case against former Victoria Police detective Simon Artz, a journalist giving evidence against his alleged source — evidence that might, depending on what the courts decide, see that source sent to jail.
The journalist in that case, Cameron Stewart, gave up his source because a waiver had been signed by the source, and some of the country’s leading journalists have declared that in such circumstances the journalist is released from his obligations to the source, and instead has an obligation to assist the authorities. So far we have not heard what Artz thinks of that argument.
The background to that affair is that the Office of Police Integrity has made it part of its job to inquire into leaks, including investigating the prolific and murky business of police leaking to journalists to undermine rivals and enemies.
Such investigations make any journalist uncomfortable. Yet anyone keeping up with events in the Victorian criminal justice system over the past decade can see that it would be hard for any agency to investigate corruption and police misconduct without looking at how the media has been used and embroiled.
Not all of those leaking to undermine the administrations of police commissioners Christine Nixon and Simon Overland will have been corrupt, but some of them will have been.
Alongside this, The Age Labor Party database story and it’s aftermath will probably prove in the long term to be small beer. There is no clear offence committed. It is hard to see the investigation going anywhere in particular.
But it is another example of the uncomfortable and murky issue of that core journalistic practice, the unauthorised disclosure. It is at the heart of the best of what journalists do. Every society seems to need, or at least endlessly reinvent, the capacity for unauthorised disclosures to be made. Yet the very fact that they are unauthorised means that there’re is a constant tension with law enforcement.
And if we wish to protect the relationship between journalists and their sources, we place an enormous level of trust in the journo. How, for example, are we to know that the journalists at The Age did not keep, or use for other purposes, the information they sighted on the Labor Party database concerning prominent citizens? Only the highest standards of ethical conduct and accountability can offer an answer to that question.
Which is why I would disagree with the too easy conclusion of The Age editorial this morning that there is no need for the current federal government media inquiry, and that an adequate answer to these concerns is to proclaim that journalists answer to the public.
How exactly? How exactly can the public question a journalist, or hold them to account? The “we are responsible to our readers” line proclaimed by Fairfax and News Limited is not entirely empty, but extraordinarily unexamined and self-serving.
Part of answering to the public is transparency, in as much as that is possible. And part of it must also be being held to account, not to some government regulator, but to the accepted, near universal ethical standards that the industry itself has developed.
All over the world, journalism codes of conduct say similar things, including words of caution about confidential sources. So the standards are not controversial. The fuss is over their effectiveness, and the means of holding reporters to account, which in this country at least could do with radical improvement.
The model currently being examined is the Australian Press Council, and the degree to which it should be better resourced and given greater powers.
Only when the phrase “we are accountable to the public” has real thought, humility, meaning and muscle behind it will journalists be able to strongly defend the central practice of unauthorised disclosure, and the confidentiality of sources without inviting public cynicism and backlash.