Protecting the Bubble Reputation: The Age and the Liu Case

The law is an ass, particularly when it comes to the dispute over whether journalists are entitled to keep their sources confidential before the prying eyes of their accusers. Earlier this month, it became clear that the media had lost one of those key battles when the High Court of Australia refused special leave to appeal against the February 2012 decision of Justice Lucy McCallum in the NSW Supreme Court.

Justice McCallum, in that case, held that Chinese-Australian businesswoman Helen Liu was entitled to access documents, and by virtue of that the sources, in the possession of The Age journalists Richard Baker, Philip Dorling and Nick McKenzie.

In February 2010, The Age published two articles by the three alleging that Chinese-Australian businesswoman Ms Helen Liu had paid former Defence Minister Joel Fitzgibbon $150,000 as part of “a campaign to cultivate him as an agent of political or business influence.” The suggestions here were clear and powerful: possible corruption extending to a minister of government; foreign “influences” and the exchange of money for influence.

This started the litigious train rolling, with Fitzgibbon launching a defamation action, and Liu alleging that the documents cited by The Age journalists had been forged. She duly sought to access the sources connected with the imputations of corrupt conduct by means of preliminary discovery.

More to the point, the NSW judgment, affirmed by the Court of Appeal, has revealed yet again the lack of maturity in the Australian political system as regards the workings of free speech. The judicial establishment simulates terror when such cases come to the bench. For the venerable justices, balance in evaluating “freedoms” of speech is fundamental, though the judicial eye seems to favour government stability rather than government oversight. The bubble reputation is all too readily treasured.

In truth, free speech remains a fragile, straw like figure, likely to be blown down before the submission of legal counsel in the name of some other contesting interest. Justice McCallum refused to accept The Age’s argument of implied constitutional freedom of speech in holding on to the documents. In the justice’s view, “an absolute protection for journalists’ sources would … threaten the constitutionality prescribed system of government, just as would an unqualified freedom to defame people involved in government or politics.” The statement is striking for its state-centric view: governments might well be threatened by such freedoms of journalists; politicians should not be subject to an unqualified fiat to be defamed.

This statement favouring the bubble reputation is by no means the only one. For, according to the judgment, “an absolute and immutable protection of confidentiality wherever demanded by a journalist’s source (in cases of political discussion) would itself be inimical to the maintenance of the system of government required by the constitution.” Substantive, not absolute protection, was what was necessary. Politicians and their associates will be thrilled with that.

To this end, the primary judge’s view had simply drawn on the conservative “two limb” test of Lange v Australian Broadcasting Corporation [1997] HCA 25. Does the law in question effectively burden freedom of communication about government or political matters? If so, is it nevertheless reasonably appropriate and adapted to serve a legitimate end compatible with the maintenance of the constitutionality of the prescribed system of government? The slant in favour of the status quo is all too apparent.

Much of this lies in the realms of power and balance. It is true that journalists have to accept a degree of transparency at their end and surrender, at times, material that would otherwise be confidential in what judges rather tepidly call “the interests of justice”. Every confidence can be waived. Every confidence can, in some cases, be susceptible to surrender. But the pressure to insist that no absolute protections exist on matters of political importance sets a dangerous precedent, undermining the very constitutional system judges claim to be protecting. The necessity for withholding identities and documents at stages should be pressing in its obviousness. Government can err. Officials can make shady deals. The power lies not to have such reputations protected, but to have such conduct exposed.

Solicitor representing The Age Peter Bartlett claims that the earlier decision by Justice McCallum’s judgment has already reverberated. “There has been a significant increase in the number of applications for disclosure of sources against the media. On that basis this decision is disappointing.” In the tussle between media, citizens and the government, it is clear that undermining a journalist’s entitlement to conceal sources is a government credo that has to change. But the judicial forum will be the last avenue willing to do so.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. He ran with Julian Assange for the Australian Senate for the WikiLeaks Party.

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