Are there any circumstances under which journalists should reveal their sources? The instinct in the profession is “no”. Journalism that goes beyond the media release and spin would all but die if the countless background and off-the-record conversations had by journalists each day were at risk of being made public.

Yet it is not hard to see why those not blooded in the profession of journalism are suspicious of the idea that journos, and journos alone, should be left to make judgments in the murky area of unauthorised disclosure.

It will be a while before the dust settles on the judgment of Justice Lucy McCallum in the NSW Supreme Court last week, in which she ordered Age journalists to reveal their sources for the story accusing former Defence Minister Joel Fitzgibbon of taking payments from Chinese Australian businesswoman Helen Liu.

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The Age has won a stay, while it organises the inevitable appeal.

The stakes are high, and the atmosphere in court, by all accounts, rather extraordinary. Just how acrimonious this case has been is visible in some of McCallum’s comments in judgment. Such as:

“Regrettably, it is necessary in that context to say something of the conduct of counsel in this case. For reasons I do not understand, the hearing of the proceedings was attended by an unusual level of acrimony between senior counsel for the plaintiff and senior counsel for the defendants. The transcript records a number of occasions on which I implored both counsel to refrain from taking rhetorical shots at each other and to confine their attention to the legal and factual issues in the case.”

However, both parties disagreed with that assessment — in court last Wednesday Liu’s QC told the judge that he did not agree with the observations in that paragraph and The Age SC agreed with him.

Meanwhile the judgment has been discussed in legal and journalistic corridors with varying degrees of self-righteous indignation on both sides.

It is a strange judgment for the layman to make sense of. For one thing, it tells only part of the story. Why did The Age journalists think it right to publish the details of key documents behind their accusation?

From reading McCallum’s words, you might think they were reckless, particularly since Liu claims they were forged. But Justice McCallum in making this decision did not find it necessary to canvass evidence previously made public.

It is worth revisiting. Journalist Richard Baker claimed that he was told by Liu’s lawyer Donald Junn that there was a “rare truth” to the documents, and that the Labor MP was having an affair with Liu’s sister Queena. All this was reported here.

Assume that Baker’s account was accurate for the moment, and put yourself in the shoes of The Age editors faced with the decision to publish, or not publish. You have documents from a confidential source. The veracity of those documents has apparently been confirmed by the supposed author’s lawyer.

And they relate to a government minister — and not just any government minister, but the Minister for Defence, who has access to all kinds of secrets. The documents seem to suggest he is taking payments from a businesswoman with close links to the Chinese government.

Publish, or not publish? What would you do? Where does the public interest lie?

It seems pretty clear to me, even though in this case there is a suggestion the source did not want all the documents published.

Having published, you are honour bound to protect the identity of the source.

But there is another point of view, and that was advanced in McCallum’s judgement.

The Age’s defence against having to reveal its sources rested largely on the implied constitutional freedom of speech on government and political matters. This implied freedom — relatively recently developed — makes invalid any laws that unduly restrict freedom of speech on government and political matters, such that the system of government and free and fair elections laid out in the constitution is inhibited. Hence, said The Age lawyers, journalists should not have to reveal their sources because of the chilling effect on freedom of speech.

McCallum disagreed. Here is what she said on sources:

“… an absolute protection for journalists’ sources would in my view threaten the constitutionally prescribed system of government, just as would an unqualified freedom to defame people involved in government or politics.”

And later, commenting on whether sources of information on political matters should be absolutely protected:

“the existence of such an unqualified freedom to defame people involved in government or politics is inimical to the maintenance of the system of government required by the Constitution.”

And later still:

“… in my view an absolute and immutable protection of confidentiality wherever demanded by a journalist’s source (in cases of political discussion) would itself be inimical to the maintenance of the system of government required by the constitution. It would expose politicians and others involved in government and politics to the risk of false and malicious attack from their detractors without recourse or remedy. To allow such sources to shield themselves under the respectable cloak of investigative journalism would be contrary to the high ideals of a free press.”

For these reasons, and others, McCallum judged that the court rule requiring the journalists to disclose was a reasonable thing, and did not contravene the constitution.

True to their code of ethics, neither The Age as a newspaper, nor its reporters, are likely to comply with any court order on this matter.

Journalists work in the area of the unauthorised disclosure. We recognise it to be so, yet suggesting that such work should be in some way legislatively authorised or recognised is almost a contradiction in terms.

Yet the Liu case is likely to lead to the whole thing ending up before the High Court, at which stage it will become a precedent of national and international significance on how media organisations and journalists do their edgy, essential jobs.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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