On 20 February 2004, two Canberra based press gallery journalists from Melbourne’s Herald Sun, Michael Harvey and Gerard McManus ran a story which claimed the government was going to deny war veterans a $500 million increase in benefits. The story, based on a leak, embarrassed the government.
Desmond Kelly, a 52 year old, middle level public servant from the Melbourne office of the Department of Veterans’ Affairs, is accused of being the source of the leak. The case against Kelly is circumstantial. Kelly had an email copy of the leaked documents prior to 20 February 2004. Kelly’s home and work phone records show several calls to McManus between 17 and 20 February 2004 (although it was the call from his work phone that initially alerted the Australian Federal Police). Kelly has been suspended without pay and charged under section 70 of the Commonwealth’s Crimes Act 1914, and his case is currently before the courts. Kelly has offered a ‘not guilty’ plea.
To bolster the case against Kelly, the Director of Public Prosecutions (DPP) subpoenaed the journalists to give evidence. In July this year McManus was asked whether he knew Kelly. He replied, ‘I decline to answer that question on the grounds that it might incriminate me.’ The DPP has subsequently granted immunity against self incrimination. McManus appeared in court last week and again refused to reveal the source. He said, ‘As a journalist I’m obliged to protect the sources of information I obtain.’
McManus and Harvey could be charged with contempt of court and face indefinite gaol terms, although the Judge at least week’s hearing said any prison term is likely span days or weeks rather than months. If Kelly is convicted he could face up to two years in gaol.
Not surprisingly, some journalists are outraged that one of their own could be gaoled for publishing a story based on a leaked document. This situation has been variously described as a sad day for democracy, government intimidation of the media, and hypocrisy as the government leaks documents all the time.
Any discussion of the rights and wrongs of this matter must begin with the leaker (whoever it was). My views on leaking are shaped by my own experience as a public servant. It is simply untenable for a public servant to leak information they acquire in the course of their employment. Governments, regardless of their political hue, have the right to develop their plans in private, and to determine when and how they will communicate those plans. It is not for an unelected public servant to decide this unilaterally for the government. The act of leaking is political. It is anathema in an apolitical public service that serves the government of the day to the best of its ability.
Some have sought to use the whistleblowing defence to justify the leak. However, this is a hollow argument. Whistleblowing relates to incidents that are in breach of the Australian Public Service (APS) Code of Conduct or the law. Furthermore there is a process that whistleblowers must follow if they want protection for their actions. And finally, the whistleblowing provisions of the Public Service Act do not override section 70 of the Crimes Act.
In this case, the leaked information was neither about an illegality nor a breach of the APS Code of Conduct. The motivation behind the leak appears to be about little more than a policy disagreement. Regardless of the merits of the government’s pre-February 2004 policy position, there is no doubt that it was perfectly legal. If the policy was not illegal, it follows that the process of leaking it was not whistleblowing. It goes without mentioning that the whistleblowing provisions were not followed.
It has been argued that governments leak all the time without penalty. However, this misses the obvious. When a Minister gives information to the media it is the government communicating its plans and intentions, whether this is done on the record or not. It is perfectly appropriate, so long as the information is not provided in breach of any laws (such as national security or personal privacy protections). There is an enormous difference between an authorised leak and an unauthorised one.
Having looked at the position of the leaker (whether it was Kelly or someone else), we need to also consider the position of the journalists.
The first thing that needs to be noted is that this court case is not an action against the journalists as such. They are being caught up in the efforts to prosecute a suspected leaker.
In refusing to name their source, the journalists are staking their position on the Media, Entertainment and Arts Alliance Code of Ethics, which says in part:
Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.
This is a bread and butter issue for journalists. If they identify an anonymous source, they will never get another tip off. In other words, it is a career stopper. And it is here that we come to the nub of the dilemma. If the DPP respected the Journalist’s Code of Ethics, many leaks could go unpunished, and if they do not, it is possible that many journalists could go to gaol.
The courts have resolved the dilemma by saying (in effect) that journalists are not above the law. It is a difficult call. The journalists have my sympathy. I think they are in a horrible bind. Perhaps journalists will ask their sources in future, ‘where are you calling from?’ But I also think governments (of whatever political hue) should expect to be served by a professional, apolitical public service. For that to be maintained, unprofessional and political behaviour must be dealt with.
Oakes is one of many journalists who has responded to the potential incarceration of McManus and Harvey with hyperbole.
Democracy cannot work if journalists only report what governments want them to report. It is the threat of leaks that keeps politicians honest. Well, relatively honest. They are much more reluctant to lie or act improperly if they know they could be found out — that there is a risk some whistleblower will disclose it to the media.
A society where government has tight control of the flow of information — that is, control of what the public is allowed to know — is not a democratic society. Leaks, and whistleblowers, are essential to a proper democratic system.
Oakes ignores the point that this leak was not whistleblowing. And he ignores the fact that the decision to leak was made by an unelected official (hardly a democratic action). But to claim it foreshadows the end of democracy is Henny Penny in the extreme. More to the point, it appears to be just a little self-serving.
Update — 1 October2005: It looks like the Attorney-General will get involved to protect the journalists.
