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morslaToo many hours... too many lawyers...
I've been wading through court proceedings and the http://www.austlii.edu.au databases, trying to find out more about journalists, codes of ethics, and contempt of court. I've even been through 92 pages of actual court transcript, and my skin is crawling from all the legalese that was thrown about.
It's a lawyer's job to ask tight questions. I've been reading people's reactions to those questions, knowing that if an attempt to avoid giving an answer is obvious to me, it sure as hell must be obvious to the people working in that courtroom. It's painful to watch (or read).
I don't know how the Factiva (media) and Austlii (law) databases work, though. I have hundreds of media stories on the Gerard McManus & Michael Harvey case, and scarcely any legal information. A similar case, involving ABC journalist Arthur Nicholls in South Australia, yielded details of his trial and subsequent appeal - but it doesn't seem to have any media coverage.
I'm trying to assemble an essay on journalists and Contempt of Court charges - specifically, cases where journalists have refused to reveal anonymous sources under oath, because of the journalists' code of ethics. I've narrowed down my reading to about 55 print news articles, and eight websites (television transcripts, political blogs and online news sites). There's still a shortlist of about thirty sources, though. It should be plenty, but for the large black hole in my research... being the outcome of the McManus & Harvey trial. I think that it's still in progress, though, so I'm guessing that's why I've run into a wall.
Brief timeline:
Febrary 2004: Herald-Sun publishes an article by McManus & Harvey, detailing leaked Federal Government documents about a plan to spend only $100m of a proposed $650m overhaul of war veteran's benefits.
July 2005: Preliminary (Victorian County Court) hearing for Crown v. Kelly. Kelly is a public servant, charged with unauthorised communication of a document. The reporters are summoned to give evidence, and refuse to name their source. They are charged with contempt in the face of the court.
The journalists launch a counter-claim in the Victorian Supreme Court, questioning the judge's authority to summon them to trial. Their own contempt hearing is stayed pending the outcome of the Supreme Court action, which is yet to be resolved.
To muddy the waters further, the federal Attorney-General has intervened in the Contempt hearing, asking that the Judge use his discretion to dismiss the charges as there is the possibility of legislation shielding journalists in these circumstances. The judge replied that he's only able to rule according to the law, and that (even when the Attorney-General asks it...) he cannot dismiss charges on the grounds that new laws might be made, and might not classify the journalist's actions as contempt, at some unnamed point in the future.
So, unless the Supreme Court rules that the judge doesn't have the authority to order people to give evidence in his own courtroom, it looks like the pair will be found guilty of contempt. I doubt they'll serve any jail time, though... by the time the Supreme Court finally handles the counter-claim, new legislation may well be in place, and that will probably influence the judge's decision on sentencing. My money's on a suspended sentence, handed down in a year or two.
It's just a pity that I went and chose a case that is missing the second half...
I've been wading through court proceedings and the http://www.austlii.edu.au databases, trying to find out more about journalists, codes of ethics, and contempt of court. I've even been through 92 pages of actual court transcript, and my skin is crawling from all the legalese that was thrown about.
It's a lawyer's job to ask tight questions. I've been reading people's reactions to those questions, knowing that if an attempt to avoid giving an answer is obvious to me, it sure as hell must be obvious to the people working in that courtroom. It's painful to watch (or read).
I don't know how the Factiva (media) and Austlii (law) databases work, though. I have hundreds of media stories on the Gerard McManus & Michael Harvey case, and scarcely any legal information. A similar case, involving ABC journalist Arthur Nicholls in South Australia, yielded details of his trial and subsequent appeal - but it doesn't seem to have any media coverage.
I'm trying to assemble an essay on journalists and Contempt of Court charges - specifically, cases where journalists have refused to reveal anonymous sources under oath, because of the journalists' code of ethics. I've narrowed down my reading to about 55 print news articles, and eight websites (television transcripts, political blogs and online news sites). There's still a shortlist of about thirty sources, though. It should be plenty, but for the large black hole in my research... being the outcome of the McManus & Harvey trial. I think that it's still in progress, though, so I'm guessing that's why I've run into a wall.
Brief timeline:
Febrary 2004: Herald-Sun publishes an article by McManus & Harvey, detailing leaked Federal Government documents about a plan to spend only $100m of a proposed $650m overhaul of war veteran's benefits.
July 2005: Preliminary (Victorian County Court) hearing for Crown v. Kelly. Kelly is a public servant, charged with unauthorised communication of a document. The reporters are summoned to give evidence, and refuse to name their source. They are charged with contempt in the face of the court.
The journalists launch a counter-claim in the Victorian Supreme Court, questioning the judge's authority to summon them to trial. Their own contempt hearing is stayed pending the outcome of the Supreme Court action, which is yet to be resolved.
To muddy the waters further, the federal Attorney-General has intervened in the Contempt hearing, asking that the Judge use his discretion to dismiss the charges as there is the possibility of legislation shielding journalists in these circumstances. The judge replied that he's only able to rule according to the law, and that (even when the Attorney-General asks it...) he cannot dismiss charges on the grounds that new laws might be made, and might not classify the journalist's actions as contempt, at some unnamed point in the future.
So, unless the Supreme Court rules that the judge doesn't have the authority to order people to give evidence in his own courtroom, it looks like the pair will be found guilty of contempt. I doubt they'll serve any jail time, though... by the time the Supreme Court finally handles the counter-claim, new legislation may well be in place, and that will probably influence the judge's decision on sentencing. My money's on a suspended sentence, handed down in a year or two.
It's just a pity that I went and chose a case that is missing the second half...
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no subject
Date: 2006-05-07 11:33 pm (UTC)John v Express Newspapers [2000] 3 All ER 257
- English case, so I don't know whether that is at all relevant to you
Independent Commission Against Corruption v Cornwall (1993) 38 NSWLR 207
- NSW case from 1993 concerning a refusal by a journalist to reveal a source when facing contempt proceedings. However, this was contempt of the equivalent of a royal commission, so it might not help.
Nicholls v DPP (1993) 61 SASR 31
- South Australian case from 1993 holding that a journalist is not privileged from revealing their sources.
This was a search on www.lexisnexis.com.au, which is a subscription only service, but I imagine that Deakin would have access to it. You might need to poke around on their library page to try to find the relevant link though.
no subject
Date: 2006-05-08 01:33 am (UTC)Nicholls was personally on trial, accused of forgery and obtaining information by deception, but claimed that all the dodgy stuff was done without his knowledge by "an anonymous third party." He ended up serving three months jail, as the court didn't really buy his story...
McManus and Harvey were called to give evidence in a public servant's trial, and they are challenging whether the judge had the right to force them to identify their source.
no subject
Date: 2006-05-08 12:37 am (UTC)Supreme Court rules and procedure is the purview of the States, so I know of no manner in which the Federal A-G could direct the States as to how contempt of court functions.
Even if the law were changed so that publishing leaks is not an offence, failing to answer questions under oath surely will still be an offence and the Federal Government doesn't (As far as I know) have jurisdiction to grant journalists a broad immunity against failure to disclose.
no subject
Date: 2006-05-08 01:30 am (UTC)Very muddy waters... in this particular case, evidence from the journalists was arguably not vital to the case. Their lawyer claims that they shouldn't have been forced to give evidence, as the information could have been obtained elsewhere (and from sources that haven't signed to a professional code of ethics preventing them from identifying an anonymous source).
It's tied in with the concept of a "free press" being an important part of a democratic society - if journalists have to identify sources whenever a court asks them, no-one will trust journalists with information that could land them in trouble for revealing it.
The state A-Gs (on Rob Hulls' urging) are all trying to work out their own legislation to protect journalists. One current proposal is that the journalists shouldn't be forced to reveal sources unless doing so will help to prevent a serious crime. In the case of a government whistleblower, once the (confidential) information is out the crime has already been committed... so the journalist should be free to publish the info, as long as they didn't solicit it.