A “totally unprecedented” number of rich Australians tried to force journalists to reveal their sources last year. The lawyer who defended most of the seven cases tells Crikey it was a disastrous 2012 legal decision that served to open the floodgates.

In 2010, The Age published a series of articles alleging then-defence minister Joel Fitzgibbon had received a number of gifts, including a $150,000 payment, from Chinese property developer Helen Liu. Lui promptly took The Age to court for defamation and also tried to get the eight journalists involved in the report to reveal their sources so she could sue them too. Justice Lucy McCallum ordered the journalists to reveal their sources. They refused and appealed — the matter is still before the courts.

But the original ruling emboldened a number of rich Australians to turn to the legal system seeking help in compelling journalists to breach their commitment to protect the identity of confidential sources. Subpoenas were issued by lawyers representing Gina Rinehart, Nathan Tinkler and eight former banknote executives accused of bribery in the Securency scandal.

Reporters without Borders says the trend is concerning. The NGO’s Press Freedom Index — which bumped Australia down two spots to 28th among the 190 countries assessed — noted yesterday:

“In Australia, the lack of adequate legislative protection for the confidentiality of journalists’ sources continues to expose them to the threat of imprisonment for contempt of court for refusing to reveal their sources.”

Peter Bartlett, a partner at law firm Minter Ellison, represented most of the publishers in last year’s attempts to compel journalists to reveal sources, as well as representing Fairfax in the Helen Liu case. He says the sheer number of applications in 2013 is “totally unprecedented”.

“When you look at the applications, they all came from very, very wealthy people. And for publishers, it all comes at a time when they don’t have deep pockets for legal budgets,” he said.

Ultimately, all seven requests for the disclosure of sources were quashed or withdrawn — an outcome Bartlett hopes will stem the boom in litigation against publishers over the issue. Another ray of hope lies in Australia’s new shield laws, many of which have only come into affect in the past few months.

Seven of Australia’s nine legal jurisdictions now have some kind of press shield law (Queensland and the Northern Territory do not). Generally, these laws introduce an assumption into law that professional journalists have a right to protect their sources. Judges ultimately have the power to pierce this right, but only if they believe it is in the interests of justice to do so. But most of those laws have only been introduced in the past 18 months, and many of them have yet to be tested in court.

Bartlett says the laws are a “very positive” development, but he is concerned about the lack of uniformity. It’s a concern shared by University of Sydney associate law professor David Rolph. “It’s a real problem,” he told Crikey. “It doesn’t sit nicely with national or international publications.”

And Rolph noted the laws don’t give any protection to citizen journalists: “The laws are cast in terms of journalists engaged in professional practice. And there’s a real reluctance to extend it further. At a time when the media is shifting quite rapidly, the legislation only protects established forms of journalism.”

Despite the upheaval in traditional media, those established forms of journalism are still doing a good job, Bartlett says. “We still have a robust media, and the management of media companies are still encouraging investigative reporting,” he said. “But threats of applications for disclosure of sources are a threat to freedom of speech, and need to be opposed wherever possible.”

Peter Fray

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