In a landmark victory for The Age, the Victorian Supreme Court has strongly endorsed the right of investigative journalist Nick McKenzie to guard the identity of sources he relied on for a series of articles that, among other things, claimed grocer Antonio Madafferi was alleged to be the head of the mafia in Melbourne.

Madafferi is suing The Age for defamation. The Age says the articles are protected by qualified privilege. Madafferi, in seeking to challenge this defence and to sue The Age‘s confidential sources as well, had sought to have the identity of those sources disclosed to him.

Whether or not someone acted with malice in defaming someone is often a key consideration in these types of defamation cases — Madafferi argued he couldn’t know whether or not the sources were reliable or had malice against him, without knowing who they were.

In response, The Age relied on the Victorian Evidence Act, which, since 2013, has enabled journalists to claim confidentiality of sources unless ordered to put this aside by a judge after an evaluation of the public interest in such a disclosure. It was the first time Victoria’s shield laws have been relied on in this way.

Significantly, the judgment not only examined whether or not the public interest would be served by the disclosure of sources, but also looked at detailed allegations of harm likely to come to McKenzie’s sources should they be exposed.

In an affidavit filed with the court, McKenzie deposed that he had been told by Victoria Police that Madafferi had put out a contract on those suspected of having assisted Fairfax’s research efforts. “It was and is of major concern to myself that a person suspected of being any journalist’s source could be killed due to this same suspicion,” McKenzie wrote in his affidavit. “I believe Tony Madafferi has been warned by police that they are aware of this alleged murder and that he should desist in his alleged efforts to have any person murdered by way of an underworld contract.”

This was the subject of significant disagreement throughout the case. Madafferi’s lawyers submitted that McKenzie had made “serious and scandalous allegations concerning possible dangers to himself and his sources, without proper foundation”. Victoria Police did not give evidence in the case to confirm McKenzie’s affidavit.

But in the judgment, Justice John Dixon noted that “the plaintiff’s solicitor asserted that police had visited the plaintiff” and had told Madafferi police had information that there was a contract on the life of a person for $200,000, and that “if something happened to that named person they would know where to start looking”.

Given this, Dixon concluded in his judgment:

“The evidence permits me to properly infer that the police entertained suspicions based in information they had received in the course of their duties about the involvement of the plaintiff in the allegations.

“I am persuaded that the defendants have established that an adverse effect for the sources from disclosure of their identity is likely. I am also persuaded to accept Mr McKenzie’s expressed fears of adverse consequences for himself, his family, and his professional career. I accept that the Italian sources would, if identified, be genuinely fearful for their personal safety. That is, in itself, a significant adverse consequence”.

Dixon’s judgment outlines the significant public interest in McKenzie’s stories, which examined things like political fundraising, the integrity of Australia’s migration laws, and investigations into organised crime. “The subject matter of this debate is the impact on Australian public life of very serious allegations of criminal conduct or misconduct about which there is substantial risk it would otherwise not be exposed to a proper degree of public scrutiny,” the judgment said.

Minter Ellison lawyer Peter Bartlett, from The Age’s defence team, says the judgment was a significant precedent, “and a warning to all of those who would seek access to journalists’ sources that the Victorian Parliament and the Victorian Supreme Court recognises that such sources should be protected”.

Speaking to Crikey this morning, McKenzie said the case had been extraordinarily stressful, and the potential outing of sources given the high stakes was “obviously extraordinarily distressing”.

“It cost us a lot, and it takes a huge amount of time to prepare for a case like this. I was subject to malicious allegations from Mr Madafferi’s lawyers, which the judge ultimately found totally unsubstantiated.”

But the outcome, McKenzie says, is a “major win for journalism”.

“The court has acknowledged the important role of journalism and the protection of confidential sources, and the case will hopefully help protect other journalists from unjust source discovery applications.”

In recent years, several Australian states, as well as the Commonwealth, have introduced shield laws giving journalists protection from being compelled to reveal their sources. Griffith University professor of journalism Mark Pearson says there’s since been a slow but perceptible shift in how courts have dealt with these issues, even though relatively few cases have explicitly relied upon these laws.

“The fact that there’s been political will to bring these protections has, I think, shifted the consciousness of judges in different jurisdictions,” Pearson said. “With so many other threats to the confidentiality of journalists’ sources these days, particularly in the area of surveillance, it’s good to see the courts supporting the notion of confidentiality of sources. It would be a very sad day if a journalists’ confidential source was threatened through a forced revelation in a courtroom.”

Peter Fray

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