Australia gets tough on journalists

Two journalists face the prospect of jail, with two more likely to join them, in a crackdown on whistleblowers that has added to what many fear is an accelerating erosion of the freedom of the press in Australia.

Critics of the prosecutions warn of a "climate of intimidation" that has been further chilled by a raft of new anti-terror laws introduced since the September 11, 2001, attacks on New York and Washington.

Gerard McManus and Michael Harvey of Melbourne's Herald Sun newspaper face contempt charges for refusing to tell the Victorian County Court their sources for the information that the Federal Government was about to renege on a promise to deliver an extra A$500 million ($544 million) in widows' and war veterans' pensions.

Their source for the story, which forced an embarrassing backdown by the Government, was allegedly 52-year-old public servant Desmond Patrick Kelly, who faces criminal charges.

The reporters told the court this week they could not breach their professional ethics by disclosing their source; Chief Judge Michael Rozenes replied that they could not place their ethics above the law of the land.

If McManus and Harvey are jailed, they will follow three other Australians who have been sent to prison for refusing to name sources since 1989.

Another was ordered to undertake 100 hours of community service.

Media, Entertainment and Arts Alliance federal secretary Christopher Warren, who believes journalists are victims of a specific campaign to stamp out whistleblowers, says two more face similar action in almost identical circumstances to McManus and Harvey.

"Given the current pattern, we'll expect them to be in this position in the next six or 12 months," he said.

In the past few years the Government has stepped up its efforts to protect information it wants to remain secret.

It has initiated a Senate privileges committee investigation of the leaking of papers to Melbourne's Age and, after failing to secure a finding of contempt, launched an inquiry in March into new measures to outlaw unauthorised disclosure of parliamentary committee proceedings.

Federal police (AFP) officers last year raided the offices of the National Indigenous Times on the orders of the office of the Prime Minister and the Cabinet in a bid to find leaked documents used to detail a confidential welfare plan to enforce "good behaviour" in black communities.

Last March the AFP raided Melbourne radio station 3CR to seize an interview recorded with Rob Stary, the lawyer for terror suspect "Jihad Jack" Thomas.

According to Government figures provided to Parliament, the AFP investigated 111 suspected leaks between 1997 and last year, and between 2000 and mid-2000 its staff spent almost 33,000 hours on leak inquiries.

The Government is unrepentant. Finance Minister Nick Minchin told the National Press Club this week that leaking of confidential information could not be tolerated, and that no one - including journalists - was above the law.

But Warren attacked the hypocrisy of politicians who, while not above providing leaks themselves, failed to provide legal protection for the journalists on whose discretion they relied.

He also said that laws against whistleblowers were discriminatory, allowing governments to ignore leaks when it suited them, and prosecuting them when they did not - a position condemned a decade ago by an inquiry into commonwealth law.

The inquiry's recommendation that any prosecution must establish damage to the national interest, and to provide protection for whistleblowers, has never been accepted.

As it stands, there is no constitutional or any other legal right to freedom of speech in Australia, nor any protection for whistleblowers or journalists who use the information they provide.

On the contrary, the use of contempt provisions to force journalists to name sources is increasing and the Freedom of Information Act has been watered down and is so time-consuming and expensive that it is held in contempt by most reporters.

Almost 200 secrecy clauses in federal acts make it a criminal offence for a Commonwealth officer to leak confidential information and for a journalist to publish it. Terrorism has added new clamps to reporting in Australia, with two key provisions of new powers for the domestic spy agency, the Australian Security Intelligence Organisation, causing particular concern.

The first prohibits the disclosure of any information relating to an Asio warrant for 28 days after it has been issued, regardless of the circumstances, on pain of a five-year jail sentence. The second adds a further two-year news blackout on any "operational information" relating to expired warrants, again carrying a maximum five-year prison term.

Journalists may also be detained and interrogated if Asio believes they might have information about terrorists or terrorist activities.

"Although no journalists have been charged under these laws, there's no doubt in my mind some journalists have breached this legislation - and rightly - because there has been a public interest in reporting the information," Warren said.

"There is a problem with this sort of legislation, and with the legislation that's at the heart of the charges against McManus and Harvey - it is absolutely random whether you get charged or not."

There have been some moves toward greater protection for journalists. New South Wales now allows judges discretion in deciding whether a reporter can protect his or her sources, once the case passes the discovery and subpoena stages.

And the Australian Law Reform Commission supports similar provisions across all stages of judicial proceedings throughout Australia.

But for most Australian journalists, protecting sources can be a risky business.