The night before Age investigative reporter Nick McKenzie was due in court to appeal against a ruling that would force him to reveal his sources, he received a text message from his lawyer.
“It said: ‘Dear Nick, just as a note of caution, please bring a spare change of clothes and do not wear Nikes – they are very popular in jail’,” Mr McKenzie said.
Although he and fellow Age reporter Richard Baker won their legal battle, Mr McKenzie said he was prepared to go to jail rather than reveal his source.
He said journalists had to protect whistleblowers at all costs, regardless of whether they were “propaganda peddlers” or “genuine, concerned citizens”.
The New News panel on confidential sources, which also included Mr McKenzie’s lawyer, Peter Bartlett of Minter Ellison, and Guardian Australia reporter Paul Farrell, agreed that journalists were the buffer between whistleblowers and the law.
“Do anything you can to protect sources,” Mr Farrell said.
But how could a journalist be sure that a source could be trusted?
Mr McKenzie said the answer was simple. He said motivation didn’t matter. What was crucial was that the information could be verified and this was decided on a case-by-case basis.
“The risk [for the whistleblower] is that their career can end. These people know the [Australian Federal Police] can come check their phone records, but they still leak,” he added.
Mr Bartlett, who handles legal matters for The Age, said that he rarely asked journalists about the identity of a source.
“It’s not in my interest to know who the source is, only that they’re credible,” Mr Bartlett said.
This approach complicated the situation for journalists and their lawyers, as “it’s very difficult to win a defamation trial these days without showing that you’ve acted reasonably. And you can’t show you’ve acted reasonably with confidential sources.”
Mr McKenzie said he went to great lengths to protect his sources.
“All of my stuff is in safe places; you’re not going to find anything . . . that piece of paper? I’m eating it.”
Both Mr McKenzie and Mr Farrell agreed that meeting a source face-to-face was the best way to make sure there was no electronic trail.
The panel also discussed the ramifications of the Federal Government’s latest reforms to national security laws, which afford greater powers to agencies such as ASIO to collect data from Australian citizens.
But Mr Farrell said he did not see the new law as part of an inevitable slide towards a totalitarian state. He said he remained optimistic about the future of free access to media in Australia.
“When you have these kinds of pushes, eventually people push back.”
Mr McKenzie said he was also optimistic, and that stricter conditons in which reporters operated in Australia would not stop people from getting information online.
“Yes we’ve got problems in Australia . . . but the Internet makes stories very hard to oppress. I’m not too concerned, at least for the foreseeable future.”
However, while the Internet brought benefits such as ease of access, it also carried additional risks for the same reason. Mr Bartlett pointed out that the Internet meant that information published online could be viewed anywhere, and was therefore vulnerable to the laws of other countries.
He said his clients had been served papers from “Indonesia, Malaysia, Vietnam and South Africa . . . who knows what the defamation laws are like over there?”.
The panel was unanimous in its view that the new laws would certainly not encourage more people to “leak” to journalists.