This article was first published in September 2013.
Let there be no confusion. Journalists’ sources are under unprecedented challenge. In 2007 we saw two Herald Sun reporters convicted of contempt of court for refusing to disclose sources.
In February 2012, Justice Lucy McCallum ordered three leading Fairfax Media journalists – Richard Baker, Nick McKenzie and Philip Dorling – to disclose sources.
The judge took 12 months to deliver her judgment. She set a relatively low threshold for enabling a court to require journalists and publications to identify their sources, even in the discussion of political and governmental matters where there is a clear public interest in encouraging the capacity of investigative reporting.
The NSW Court of Appeal agreed and that decision is now on appeal to the High Court.
Since that decision we have seen a significant increase in the number of applications for disclosure. The accused executives in the Securency committal sought disclosure from McKenzie and Baker (and failed on appeal), Nathan Tinkler sought disclosure against Paddy Manning, Sunland against Ben Butler and Gina Rinehart against Adele Ferguson.
These are all Fairfax Media reporters. I acted for all of them, including those in the Helen Liu case.
Since the Liu application was made, the parliaments of the Australian states and the Federal Parliament have recognised that these applications are a serious challenge to freedom of speech and have enacted shield laws.
The laws are not uniform and they are not ideal but they are a step in the right direction.
This brings us to the Rinehart claim for disclosure of sources against Steve Pennells and Western Australian Newspapers. Hancock Prospecting issued subpoenas for the production of documents to an arbitrator in an arbitration between family members. Justice Janine Pritchard of the Supreme Court delivered her judgment on Tuesday. WAN failed in its argument that the documents sought were not relevant to the arbitration and it failed to show that the subpoena was oppressive and an abuse of process.
WAN also failed to convince the judge that the subpoena was too wide, was premature and was in reality a fishing expedition.
The newspaper group then argued the subpoena would require it to breach agreements on confidentiality. The judge accepted that Pennells had given undertakings of confidentiality to a number of people and that he was subject to an obligation of confidentiality and to an ethical obligation of confidence as a journalist.
While the judge accepted that some of the documents sought by Hancock were subject to an obligation of confidentiality, she did not feel that any such confidentiality, of itself, would warrant setting the subpoena aside on the grounds that it was oppressive. She also rejected WAN’s argument that having regard to the ”newspaper rule”, the subpoena should be set aside, as the arbitration did not involve an action for defamation.
All of this looked pretty bleak for WAN. The judge then turned to consider the WA shield laws, which came into operation on November 21, 2012, after the issue of the subpoenas.
This was the first time the court had had the opportunity to consider the WA shield laws.
The judge ordered that the subpoena be set aside on the ground it was oppressive and an abuse of process.
The judge noted that while the NSW and Commonwealth shield laws specifically extended them to cover pre-trial procedures including subpoenas, the WA law did not.
She found that the shield laws applied, even though they came into operation after the arbitration commenced and after the subpoena was issued.
She took the view that the wider forensic purpose of this subpoena, and the impact of the subpoena on WAN having regard to the legislative landscape that now prevails following the enactment of the shield laws, could not be ignored.
Justice Pritchard found that: ”The journalists’ protection provisions apply so that a journalist … is not compellable to give identifying evidence.”
The judge noted that ”clearly the Parliament intended that journalists’ protection provisions would have a wide application”.
She accepted that ordering Pennells to disclose ”would constitute a breach of a fundamental ethical obligation on him as a journalist”.
This is a significant victory for freedom of speech in this country. It is one of the first cases in which state or federal shield laws have been tested.
The Hancock application against Ferguson remains on foot.
While the decision of Justice Pritchard does not automatically set aside the subpoena addressed to Ferguson, Fairfax Media will continue to seek to set it aside.
Hancock Prospecting could, of course, now seek to discontinue its application.
Peter Bartlett is a partner at Minter Ellison Lawyers.
First published in The Age.