Michaelia Cash AWU raid senate estimates

In all the news about who told what to whom in the Australian Federal Police raid on the Australian Workers’ Union, you know who doesn’t have either a legal or ethical obligation to keep his source confidential? Former government staffer David De Garis.

That’s because the obligation to respect confidence is inherent in the principles of journalism, not in act of a tip-off.

The identity of many major confidential sources in Canberra are held exclusively in the brain of recently retired press gallery doyen Laurie Oakes. Speculation over the identity of those sources is often a matter of intense debate. That speculation shapes politics.

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How has anonymity has ruled our politicians?

Remember all that chatter about who gave Oakes the comments by Julia Gillard in Rudd cabinet discussions over pension rises? And who told him about the succession planning between Gillard and Rudd on the fateful evening of June 23, 2010?

Definitive views were formed throughout the parliament and came to be strongly held. These views were bitterly articulated in the fights between the Rudd and Gillard camps for the next three years, and, indeed, right up to today.

Yet Oakes is the only person who truly knows. He notes only that no one should even assume there was a single source, so, if there were two or more, presumably the sources don’t even know the identity of each other.  

And he’ll carry that identity to his grave. No statute of limitations. No records to be opened for the benefit of history, long after everyone is long gone from the political stage. If we’re honest, we’ll see that leaves a small but significant hole in what we’ll ever know about Australian political events and why they unfolded the way they did.

But — and there’s a big “but” in this — journalists accept this limitation on what they can report because confidential sources are what makes journalism different from press releases.

If people with information can’t talk to journalists without attribution then “journalism” will deteriorate to a bland diet of press releases, interviews and staged public events — and we’ve got more than enough of that as it is.

How did it play out for De Garis?

It’s a clear principle, although sometimes it can seem muddy in practice. In the current brouhaha over the AFP raids, there are two complications.

First, this was a politically motivated tip-off designed to cause damage to an opponent. There’s no high-minded motivation about the public’s right to know here. In fact, the damage to De Garis flowed not so much from his identity being revealed as from his decision to do it as a confidential tip-off in the first place when his boss, Employment Minister Michaelia Cash, was denying that tip-off.

Yet in Australia, the journalists’ code of ethics confronts this head on. Clause 3 says: “Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source.” However, it goes on: “Where confidences are accepted, respect them in all circumstances.”

In other words, once a journalist has made a judgement (based on their experience, their knowledge and their need for speed) that they should accept the confidence, then they are bound to respect it. It doesn’t matter how trivial the matter may be (or turn out to be — the AFP raids wouldn’t have seemed as trivial at the time of the tip-off). The ethical principle allows no exceptions.

Courts, police, investigators don’t like this. Yet Australian journalists have gone to jail or copped criminal convictions to protect this principle. Parliaments have made half-hearted legal provision for journalists’ shield laws. Governments have more aggressively gone after journalists to identify confidential sources.

This frustrates many journalists who know that often the same politicians who rely on journalists protecting their own confidences, will bring in the coppers to search journalists’ private records to find someone else who is leaking.

The second issue is this: who’s bound by the confidence? We only know about the De Garis tip off because BuzzFeed journalist Alice Workman — who did not herself receive the tip — wrote about it.

That’s legit. The identity of a confidential source is often genuinely newsworthy — and was in this case. Similarly, journalists have speculated over the identity of Oakes’ source(s). Journalist-led inquiries exposed the likely identity of the FBI’s Mark Felt as Woodward and Bernstein’s Deep Throat. (Felt confirmed his identity 30 years after the event, shortly before he died.)

Now that we know the source who told the journalists, the AFP inquiry has shifted to asking who told De Garis? No doubt the AFP will ask him. Unfortunately for his source, political operatives have no ethical or legal obligation for confidentiality.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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