‘Substantial public interest’ in journalists keeping sources secret
There is a substantial public interest in journalists keeping their sources secret, a Supreme Court has heard during a bid to force an editor to identify a confidential source.
There is a substantial public interest in journalists keeping their sources secret, a Supreme Court has heard during a bid to force an editor to identify a confidential source linked to his reporting of a Victorian anti-corruption probe.
A person, known only as XYZ, is seeking a court order that The Australian’s Victorian editor, Damon Johnston, reveal a source used in his reporting of an Independent Broad-based Anti-corruption Commission inquiry – codenamed Operation Richmond – into the dealings between the Andrews government and the United Firefighters Union almost a decade ago.
XYZ claims they have potential causes of action against the source, known as CS1, for breach of confidence and privacy because they leaked information from a draft IBAC report to Johnston, and says they require CS1’s identity to enable them to pursue those claims.
Appearing before judge Lisa Hannon in the Supreme Court on Thursday, Johnston’s barrister, Marcus Hoyne, told the court there was “a substantial public interest in allowing a journalist to keep their sources secret”.
Mr Hoyne said it would be “highly problematic” if journalism sources “dried up” and pointed to the Lawyer X scandal as an example, where the Herald Sun relied on sources to reveal barrister Nicola Gobbo’s double life as a police informer.
Johnston was the editor of the newspaper when the Lawyer X scandal was broken by the newspaper in 2014. The Herald Sun’s reporting, which relied on a range of confidential sources, ultimately prompted a damning High Court ruling, a royal commission and the unmasking of Gobbo.
“It’s not just a question of the breadth of sources that will dry up, it’s also a question of the quality of the sources that will dry up,” Mr Hoyne said.
He told the court that should Johnston disclose his source, it would not only harm him personally but would “also impact the disclosure of information to journalists more generally”.
Lawyers for Johnston, who is fighting the legal action alongside Nationwide News, the publisher of The Australian, further argued that XYZ’s application should be thrown out as an abuse of process because XYZ breached IBAC’s legislated non-disclosure requirement in bringing the case and disclosing the contents of the draft report to lawyers and judges of the Supreme Court.
Mr Hoyne told the court IBAC was the “gate-keeper of the information” and XYZ had failed to obtain IBAC’s authority to disclose the draft report. “The abuse of process arises because it would bring the administration of law into disrepute,” he said.
“What they’ve done is infringe against the very statute they’re complaining about.”
Mr Hoyne told the court XYZ’s prospective legal action against CS1 was based only on a “suspicion and hunch”, and there was “no serious risk of further disclosure” by CS1 or evidence of harm to XYZ’s reputation.
He said Johnston was “doing what a responsible journalist does” when he contacted XYZ for comment after receiving the draft report, and the contents of the text messages from The Australian to XYZ were not damaging to XYZ’s reputation.
Last month, Johnston gave evidence that he did not intend to surrender his source’s identity, even if he were to be ordered by the court to do so.
“I have to follow my ethical and professional code,’’ Johnston told the court in October.
Nicholas Wood, for XYZ, on Thursday told the court Johnston held a “plainly false conception of his so-called ethical duties” because journalism ethics were subject to the law of the land: “These codes of ethics do not have the status some journalists appear to think they have.”
Mr Wood submitted it was “not lawful for a journalist to give an absolute guarantee of confidentiality when talking to a source” and journalists should warn certain sources they would have to identify them if ordered by a court.
Mr Hoyne disputed this assertion as being impractical, and presented the court with 68 laws in existence that could prohibit disclosure to a journalist.
Mr Wood told the court there was an “obvious” public interest in disclosing CS1’s identity to enable XYZ to pursue their “claimed legal right”.
Mr Wood rejected the abuse of process argument, and told the court XYZ’s prospective causes of action “quite comfortably” cleared the threshold to obtain the court order.
The case resumes on Friday.
