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Australian court order welcomed but points to flaws in journalist shield laws

On 16 March 2014, the Media, Entertainment & Arts Alliance (MEAA), the union and industry advocate for Australia's journalists, welcomed the decision by Justice Janine Pritchard in the West Australian Supreme Court to order Gina Rinehart's company Hancock Prospecting to pay the legal costs incurred by senior Fairfax Media journalist and MEAA Media member Adele Ferguson.

Rinehart, who has the largest individual shareholding in Fairfax, failed in her efforts to compel Ferguson to breach her ethical obligations by revealing confidential sources. Justice Pritchard also gave Ferguson the right to apply for any special costs orders relating to the costs due to the "unusual difficulty, complexity and importance of the matter" in relation to the state's journalist shield laws and the "novel and complex legal questions".

Rinehart's company had subpoenaed Ferguson a year ago to produce recordings, texts, notes and emails. In August 2013, Justice Pritchard also dismissed an attempt from Rinehart to force senior journalist with The West Australian and MEAA Media member Steve Pennells to disclose his sources and materials.

Clause 3 of the MEAA Journalist Code of Ethics requires MEAA Media members: "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".

MEAA federal secretary Christopher Warren said: "The court's decision underscores the need to acknowledge and respect journalist privilege in relation to the journalists' ethical requirement to refuse to disclose their confidential sources. But it is a principle that still needs to be properly enshrined in law across Australia. And that will require uniform national shield laws which is not the case at the moment. Those jurisdictions that have shield laws, and some still do not, each define 'journalist', 'sources' and 'news' differently. In the WA laws, there is even a requirement on the journalist to reveal their source to the judge who would then determine if the shield applies or if the source should be disclosed 'in the public interest' - something which the journalist cannot do so that the journalist could then be found in contempt of the court," Warren said.

"No costs, like those in the Rinehart case, would need to be ordered if shield laws properly acknowledged journalist privilege and the ethical obligation to respect confidences in all circumstances at the outset and thus prevented unnecessary legal procedures," he said.

Warren added: "These two cases, despite their welcome outcome for our members, clearly demonstrate Australia's patchy and disparate journalist shields fail to do their job. It is appalling journalists are served with a subpoena that essentially would require them to breach their ethical obligations. Shield laws regardless of whether they are federal, state or territory (and not every jurisdiction has enacted shield laws) clearly fail if a journalist is still required to engage in protracted, stressful and extremely expensive court procedures before the shield comes into effect.

Warren said: "There is a deficiency in Australia's shield laws if powerful people with deep pockets can continue to drag journalists through a series of legal procedures in an effort to disclose information which they know the journalist is ethically required never to divulge."

MEAA has called on federal, territory and state Attorneys-General to introduce uniform shield laws to ensure that powerful people cannot go jurisdiction shopping; and to properly protect journalist privilege through consistent, uniform legislation in every jurisdiction. The matter was due to be discussed in October last year by the Attorneys-General. MEAA is still waiting to hear if the matter will be addressed.

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