FEDERAL COURT OF AUSTRALIA

Ashby v Commonwealth of Australia (No 2) [2012] FCA 766

THE COURT ORDERS THAT:

1.    The interlocutory application filed by Steve Lewis on 2 July 2012 be dismissed.

2.    The subpoena issued to Steve Lewis on 18 June 2012 stand over until 9:30 am on 20 July 2012.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1     Steve Lewis is a journalist employed by News Limited. The second respondent, Peter Slipper, who is the Speaker of the House of Representatives, caused Mr Lewis to be issued with a subpoena dated 18 June 2012 requiring him to produce documents for the purposes of these proceedings. As narrowed, the schedule to the subpoena relevantly reads:

“All documents evidencing or recording or constituting communications in the period from 1 February 2012 to 27 April 2012 (inclusive) between:

(a)    Steve Lewis and James Ashby; and

(b)    Steve Lewis and each of: (1) Karen Doane, (2) Malcolm Brough, and/or (3) Anthony McClellan.

relating to allegations made by Mr Ashby against the second respondent in these proceedings and/or relating to the matters set out in the second respondent’s amended points of claim.”

2    On 2 July 2012, Mr Lewis applied by interlocutory application to set the subpoena aside. Originally, he relied on a number of grounds, but the debate between him and Mr Slipper has now been confined to a single issue that arises under Div 1A of Pt 3.10 of the Evidence Act 1995 (Cth). Mr Lewis claims that one document is caught by the subpoena and that he is not compellable to produce that document by force of ss 131A(1) and or 126H. This is because Mr Lewis contends that production of the document would disclose the identity of his confidential source.

The legislative provisions

3    The issue arises under ss 126G, 126H and 131 which provide:

“Division 1A—Journalists’ privilege

126G    Definitions

(1)    In this Division:

informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium.

journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.

news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.

126H    Protection of journalists’ sources

(1)    If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.

(2)    The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:

(a)    any likely adverse effect of the disclosure on the informant or any other person; and

(b)    the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

(3)    An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

…

Division 4—General

131A    Extended application of Division 1A

(1)    This section applies if, in response to a disclosure requirement, a person claims that they are not compellable to answer any question or produce any document that would disclose the identity of the informant (within the meaning of section 126H) or enable that identity to be ascertained.

(1A)    A party that seeks disclosure pursuant to a disclosure requirement may apply to the court for an order, under section 126H, that subsection 126H(1) does not apply in relation to the information or document.

(2)    In this section, disclosure requirement means a court process or court order that requires the disclosure of information or a document and includes the following:

(a)    a summons or subpoena to produce documents or give evidence;

(b)    pre-trial discovery;

(c)    non-party discovery;

(d)    interrogatories;

(e)    a notice to produce;

(f)    a request to produce a document under Division 1 of Part 4.6.” (bold emphasis added)

Mr Lewis’ preliminary argument

4    At the outset of the hearing this morning, Mr Lewis argued that he did not have to produce the document because his solicitors had claimed, in a letter dated 21 June 2012, that he was not compellable to do so by force of s 126H. He also relied on the fact that no order had been obtained under either ss 126H(2) or 131A(1A) . He asserted that the claim made by his solicitors’ letter was all that was necessary to invoke his entitlement to refuse to produce the document. He based that argument on a construction of s 131A that all the journalist had to do was make a claim under that provision to invoke the privilege. I rejected that argument.

5    In my opinion, s 131A is intended to extend the journalistic privilege created by s 126H(1) beyond a limited situation, in which a journalist is not compellable to answer a question or produce a document, so that it will also apply to any court process or court order that would have the consequence of requiring the journalist to disclose the identity of an informant for which the privilege could be claimed in a situation provided for under s 126H(1).

6    The explanatory memorandum prepared by the member of the House of Representatives who proposed the amendments to add Div 1A and s 131A confirms such a construction. It states that what is now s 131A(1) was intended to extend the provisions of s 126H to pre-trial proceedings (see item 28). The explanatory memorandum for the provisions also stated that the overall purpose of s 126H was to send a clear message that, unless it was contrary to the public interest, a person who wished to provide information to a journalist would have his or her identity protected, if the journalist promised the informant not to disclose his or her identity. The explanatory memorandum said that this accorded with the code of ethics of the Australian Journalists Association that required journalists to respect confidences. The explanatory memorandum also said that if the information had been imparted in confidence, the confidence could not be compelled to be broken in a court proceeding, but added that this did not provide a journalist with a right to refuse to provide information where the information would not lead to the disclosure of the identity of the source.

7    In my opinion, the natural and ordinary meaning of “claim” in s 131A(1), when read with s 131A(1A), is a reference back to the entitlement to assert privilege created by s 126H(1). However, nothing in s 131A relieves a journalist who asserts that he or she is not compellable to produce a document or give evidence from proving that he or she has the privilege described in s 126H(1) in the extended circumstances referred to in s 131A(1).

The basis of Mr Lewis’ claim

8    After I made that ruling, Mr Lewis’ Senior Counsel read an affidavit by his solicitor, that identified him as a journalist for News Limited newspapers, including The Daily Telegraph, The Australian and The Courier Mail. Mr Lewis informed his solicitor that he had received a telephone call from a person whom he described as the “confidential source” within the period specified in the subpoena. Mr Lewis said that his source had stated that the source had highly confidential information and wanted to know if Mr Lewis would be prepared to talk with that source about the information on a confidential basis. Mr Lewis said that he agreed to do so. He said that he had enquired of the confidential source, when they met, why the source had sought him out. Mr Lewis said that the source stated that he or she had been informed that Mr Lewis was a journalist who could be trusted. Mr Lewis said that he had conducted his meetings with the confidential source in the normal course of his work as a journalist, and for the purpose of possibly publishing a story in one or more of the News Limited newspapers for which he worked. Mr Lewis said one document fell within the scope of the subpoena and that this would disclose the identity of the confidential source as his confidential source, or enable the source’s identity to be ascertained. This was, he asserted, because the document, first, was a communication from the confidential source to Mr Lewis; secondly, contained the source’s name; thirdly, specified a contact point for the source, and; last, contained material that established the bona fides of the source in relation to the information supplied to Mr Lewis during detailed discussions that they had.

The evidentiary background

9    In a radio interview, soon after these proceedings began, between Mr Lewis and a broadcaster, Chris Smith, on 2GB radio, Mr Smith described Mr Lewis as the man who broke the “story” in The Daily Telegraph. Mr Lewis told Mr Smith that he had been reporting on Mr Slipper and allegations concerning his conduct for two years, and that the Court documents had been filed the previous Friday. Mr Smith asked him whether he had gone to Mr Ashby or Mr Ashby had gone to him. Mr Lewis responded that he did not want to go into detail about that matter adding: “Let’s just say that we’ve been in contact for some time”. During the course of the interview, Mr Lewis went on to suggest that the Court documents were but the tip of an iceberg, that there were other matters that could be investigated by the authorities and that he would be very happy to help them.

10    When Mr Ashby filed his initial originating application he concluded it by stating that a sworn or affirmed “independent forensic Information Technology assessment and report” supported the pleading of text messages he alleged had passed between him and Mr Slipper: see Ashby v Commonwealth of Australia [2012] FCA 640 at [3]-[4]. That report had been prepared by Rodney McKemmish and was provided to Mr Slipper’s lawyers pursuant to an order made at the first directions hearing on 18 May 2012.

11    A number of text messages, that have been led in evidence today, passed between Mr Lewis and Mr Ashby, from about the beginning of April 2012. These indicate that Mr Ashby was communicating with Mr Lewis, among other things, about travel entitlements claimed, and travel undertaken, by Mr Slipper which were the subject of Mr Lewis’ articles published before and after 20 April 2012 and his interview with Mr Smith. The text messages suggested that, while on leave from his employment in Mr Slipper’s office as the Speaker, Mr Ashby came to Sydney and stayed at a hotel at the expense of Mr Lewis’s employer. The text messages suggested that Mr Lewis requested Mr Ashby to provide Mr Lewis with copies of extracts from Mr Slipper’s diary for the period between 31 December 2009 and 9 January 2010 and 10 and 11 November 2010 and that Mr Ashby had provided those to Mr Lewis. The text messages also indicated that Mr Lewis was aware that Mr Ashby was seeing lawyers and preparing to commence proceedings in this Court alleging that Mr Slipper had sexually harassed him, which are now the subject matter of the main proceedings before me.

The parties’ submissions

12    Mr Lewis argued that he was not compellable to produce the document because, on its proper construction, s 126(H)(1) operated as a blanket protection, unless an application were made by a party under ss 126H(2) or 131A(1A) to challenge his non-compellability. He argued that the evidence he had adduced met the preconditions for his assertion of the privilege not to be compellable to produce that document. He contended that this privilege went so far that, even if an informant had, subsequently to imparting the information to a journalist on a confidential basis, released him or her from the confidence and been publically identified as the journalist’s source, nonetheless the journalist could continue to assert the privilege so as not to be compellable to produce a document that revealed the identity of the source. He argued that the privilege conferred by s 126H(1) was a beneficial provision that was designed to afford journalists protection and the section should not be given a narrow or unduly technical construction. He contended that if he were required to produce the document, then by doing so, his informant’s identity would be disclosed as, from his description of its contents, it clearly would.

13    Mr Lewis argued that the section should be construed so as to prevent situations arising that could destroy the privilege in other contexts. He gave an example a situation in which a journalist, having given an undertaking of confidentiality to a source, left material provided by the source that identified the source on a desk in open view of a third person. Mr Lewis argued that in such a situation it could be said that there had been disclosure of the informant’s identity to the third person sufficient, on a narrow construction of s 126H, to remove the privilege. He also argued that it would be possible to envisage proceedings, such as, a defamation action in which a court had made orders against a journalist under s 126H(2) to reveal a source, but after the order had been complied with, the proceedings settled before it became publicly known who the source was or the material was not tendered in evidence during that trial. He argued that the other party to that litigation, having found out who the source was through the Court’s compulsory process, could later seek to obtain the same material in another case. However, he asserted that these results would not accord with the intention of the Parliament. Mr Lewis argued that s 126H(1) should not be construed to allow arguments by parties issuing subpoenas that sought to employ all manner of allegations against a journalist to require him or her, in effect, to respond to a series of questions designed to elicit the identity of the source by a process of elimination.

14    Mr Slipper contended that Mr Lewis was not entitled to assert the privilege at all. However, he did not make any application for the exercise of the Court’s discretion to require the disclosure of the evidence of the identity of the informant either under s 126H(2) or s 131A(1A). Rather, he said that because of what was already known about the relationship between James Ashby, the applicant in these proceedings, and Mr Slipper, if the informant were Mr Ashby, his identity was already disclosed and, so, Mr Lewis must produce the document. Mr Slipper argued that, on the other hand, if the informant were not Mr Ashby, there would be no need for Mr Lewis to produce the document. In effect, Mr Slipper’s argument amounted to asking Mr Lewis to confirm whether or not his source was Mr Ashby.

15    Mr Slipper also contended that substantial material existed in the public domain, including the radio interview with Mr Lewis, and in documents that had been obtained in the course of these proceedings, to suggest that Mr Ashby had been publicly identified as an informant of Mr Lewis in a series of newspaper articles that began appearing shortly before these proceedings were commenced on 20 April 2012. Mr Slipper argued that this material demonstrated that if Mr Ashby were Mr Lewis’ confidential source, then production of the document in accordance with the command of the subpoena will not disclose Mr Ashby’s identity or enable his identity to be ascertained for the purposes of s 126H(1). This is because, so Mr Slipper contended, Mr Ashby has already been revealed as an informant of Mr Lewis for the purposes of Mr Lewis’s publications and that the privilege created by s 126H(1) will not prevent Mr Lewis being compellable to produce the document.

Consideration

16    Despite it being the only relevant relief sought in his interlocutory application, Mr Lewis does not now seek to set aside the narrowed subpoena. The question is whether or not his asserted construction of s 126H(1) is erroneous; if it is, then it is common ground that Mr Lewis must reassess whether he is required to produce the document. Depending on the conclusion he reaches on a proper understanding of the legislation, he will then be in a position to assess if he is compellable to produce the document.

17    The amendments to the Act have created a statutory right of journalists, as defined in s 126G, to assert a privilege from disclosure of their sources which has greater force than the common law rule of practice known as the “newspaper rule”: McGuiness v Attorney-General (Vic) (1940) 63 CLR 73 particularly at 104-105 per Dixon J. In John Fairfax & Sons Limited v Cojuangco (1988) 165 CLR 346 at 351-352 Mason CJ, Wilson, Deane, Toohey and Gaudron JJ described the precise area of operation of the newspaper rule as being “shrouded in uncertainty”. Their Honours explained (165 CLR at 354-355) that the courts had refused to accord absolute protection on the confidentiality of a journalist’s source of information while at the same time imposing some restraints on the entitlement of litigants to compel disclosure of the identity of the source. They said:

“In effect, the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice. So generally speaking, disclosure will not be compelled in an interlocutory stage of a defamation or related action and even at the trial the court will not compel disclosure unless it is necessary to do justice between the parties.”

18    Some of those concepts are repeated in s 126H. However, this provision replaced the common law uncertainty with a prima facie entitlement of the journalist to assert a privilege against disclosing his or her informant or source.

19    How can the privilege be asserted? First, s 126G defines the informant as being the person who gives information to a journalist in the ordinary course of the journalist’s work in the expectation that that information may be published in a news medium. Secondly, the section defines the “journalist” as being the person who, in the practice of his or her profession, may be given information by an informant in the expectation that that information may be published in a news medium. Thus, the statutory definitions of “informant” and “journalist” in s 126G create a relationship that must exist between the particular information conveyed and the persons between whom it is communicated. The privilege in s 126H(1) relates to an anterior promise made by the journalist not to disclose the informant as the journalist’s source of that particular information: i.e. the journalist’s promise of confidentiality referred to in s 126H(1) is not to disclose the informant’s identity, or to enable that identity to be ascertained, in respect of that person as being the source of the particular information.

20    If s 126H(1) were construed in the way in which Mr Lewis asserted, journalists would be able to resist producing, or disclosing to a court, any document or information provided by a person to whom they had once promised confidentiality that discloses the identity of the source or enables it to be ascertained, regardless of the connection between the promise and the particular information. This argument would extend the privilege to all instances where the journalist had spoken to, say, a politician on a confidential basis, or “off the record”, about a particular subject matter, even though they may talk together on a daily basis “on the record” about other matters.

21    The section is not designed to produce such a result. Its purpose is to ensure that a person who provides particular information can do so knowing that his or her identity as its source can be protected by the journalist because he or she is not compellable to disclose that identity by force of s 126H(1). The privilege exists so that, ordinarily, the journalist cannot be compelled to disclose or identify his or her informant or source of particular information obtained for the purposes of the journalist’s work. That privilege is, however, subject to the Court’s power created by s 126H(2), to override it in certain circumstances.

22    The free flow of information is a vital ingredient in a democratic society such as that in which we live. The interests of justice are equally important and can override journalistic privilege if the conditions in s 126H(2) are established. Nonetheless, as the Court recognised in Cojuangco 165 CLR at 354:

“The role of the media in collecting and disseminating information to the public does not give rise to a public interest which can be allowed to prevail over the public interest of a litigant in securing a trial of his action on the basis of the relevant and admissible evidence. No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information. It stands to reason that the free flow of information would be reinforced, to some extent at least, if the courts were to confer absolute protection on that confidentiality. But this would set such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media.” (emphasis added)

23    The privilege in s 126H(1) changes the emphasis of the balance that the common law achieved in favour of the protection of the sources. But, the new privilege is also intended to protect the free flow of information and the circumstances of its imparting. That privilege was created to meet a well recognised concern for the protection of the confidentiality of journalists’ sources of information balanced against the interests of justice in litigation. I am of opinion that it would be unrealistic to construe s 126H(1) in a way that gave journalists, in effect, carte blanche to refuse to produce any documents or give evidence that disclosed the identity of a source, or enabled it to be ascertained, merely because the journalist once had had a connection with a person whose identity the journalist had promised not to disclose when imparting particular information.

24    The purpose of the privilege is to protect the confidentiality of the informant as the journalist’s source of the particular information the subject of his or her claim under s 126H(1). That is why it is essential to understand that the definitions in s 126G tie the privilege conferred by s 126H(1) back to the imparting of the particular information given by the informant and to the occasion of that imparting. The privilege exists so that an informant cannot be identified as having provided that particular information or as having been the source of, in the usual situation, the journalist’s story containing that information. There is no indication that s 126H(1) intended to provide confidentiality for the identity of the informant as the provider of information, where and at a time that the circumstances of its imparting are not, or are no longer, confidential.

25    Barrett J dealt with a different question concerning the meaning of the word “disclose” in s 122 of the Evidence Act, in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070 at [19]. He said, and I agree, that it is not possible to “disclose” to a particular person something already known to or possessed by that person.

26    Courts often have to make orders protecting the identity of persons, sometimes by use of pseudonyms, and sometimes by closing the Court (see e.g. ss 17(4) and 50 of the Federal Court of Australia Act 1976 (Cth)). In the well-known case of Attorney-General v Leveller Magazine Ltd [1979] AC 440, Colonel B was called to give evidence in a magistrate’s court under the Official Secrets Act 1920 (UK). The magistrates ruled that the witness should be referred to as “Colonel B” during the whole of his evidence and that no attempt be made to disclose his identity. However, some months before he gave evidence, an article that identified him had been published in a magazine available to the public. After he had given evidence, three magazines used the earlier article and his evidence to identify who the witness was and published Colonel B’s real name. The publishers of the three magazines were charged with contempt of court. The House of Lords held that no contempt had been committed when the journalists put two and two together and used this to identify and name Colonel B. The reason was, in the pithy phrase of Lord Russell of Killowen, that Colonel B, having given his evidence in open court, would have told the world, if interested, where to look for his identity. His Lordship said ([1979] AC at 468F):

“The gaff was already blown by the deposition, to the publication of which no objection could be taken.”

27    It is a commonplace for, particularly, politicians to speak both on and off the record in the one interview. It would serve no legitimate purpose if a record of material given to the journalist in such a situation “on the record”, could not be required to be produced to the court in answer to a subpoena, or given in evidence because the journalist had also given the same person an undertaking of confidentiality that would, and should, protect revelation of the person being the source of other material provided “off the record” on the same occasion. Mr Lewis could not identify any reason for such a result. The beneficial purpose of the legislation was not intended to arrive at a result that does not accord with common sense: cf: Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.

28    There is evidence that Mr Lewis and Mr Ashby communicated about articles that Mr Lewis published shortly before these proceedings commenced, and that those articles may have had some relation to the document that is the subject of the current claim. However, I am not persuaded that the evidence establishes that Mr Ashby was the source or that the information, whatever it is, in the document is information that is now in the public domain or associates him as having provided it to Mr Lewis.

29    Of course, it is not possible to envisage, or in reasons such as these to consider, every situation in which the application of s 126H(1) may arise. However, I am not persuaded by Mr Lewis’ examples given in argument at [13] above that he is not compellable to produce the document, if it be the case that the informant he is seeking to protect is known already in the public domain or has been disclosed as, at least, the source of particular information he has published. This is not the occasion to explore the extent of the Court’s power to prevent misuse of information obtained in breach of confidence (as in Lord Ashburton v Pape [1913] 1 Ch 469) or used in breach of the implied undertaking not to use documents or information disclosed or obtained through compulsory process in court proceedings for purposes other than those proceedings (as in Hearne v Street (2008) 235 CLR 125). On the other hand, I am not persuaded by Mr Slipper’s argument that Mr Ashby has been revealed as such a source.

30    I am of opinion that if the informant has already identified himself or herself as the journalist’s source of what the journalist published, it would be inconsistent with s 126H(1) to allow the journalist or his or her employer to assert in court proceedings that he, she, or it was not compellable to answer questions or produce documents that would confirm what had already been disclosed. The ordinary and natural meaning of the word “disclose” includes:

•    to open up (that which is closed or shut); to unclose … to open up to the knowledge of others; to make openly known, reveal, declare (secrets, purposes, beliefs, etc). (Oxford English Dictionary online)

•    to cause, to appear; allow to be seen; make known; reveal … to uncover; lay open to view; (The Macquarie Dictionary online)

The Oxford English Dictionary online defines “ascertained” as including: “… discovered by investigation, known”.

31    These meanings convey the sense in which s 126H(1) uses the words “would disclose the identity of the informant or enable that identity to be ascertained”. The privilege is lost if the identity of the informant, as the source of the particular information, is already known or able to be ascertained.

32    The ordinary and natural meeting of “disclosed” as used in both ss 126H(1) and 131A(1) is not unqualified. That meaning is part of a cognate expression for protection of the journalist from being compellable to answer questions or produce documents that “would disclose the identity of the informant or enable that identity to be ascertained”. Section 126H(1) assumes that the identity of the informant, as the source of the particular information that the journalist published, is not already known at the time that the privilege is claimed. That is, there is still a secret or confidence to protect. Thus, s 126H(1) deliberately uses the conditional “would” to indicate that the privilege is limited to a disclosure or act that changes the position of the informant from his or her then current state of being unknown as the source of the particular information. Once the informant has been revealed as the source of that information, the source’s identity as such is no longer confidential. Thus, there is no point in protecting his or her identity or permitting the journalist to assert that the identity is confidential to the journalist, so that he or she is not compellable to produce a document or give evidence that merely confirms that identity.

Conclusion

33    For these reasons I am satisfied that the construction of s 126H(1) posited by each party is incorrect. Ultimately, the question whether Mr Lewis is compellable, in the first instance, must be addressed by him in answering the subpoena by applying the correct understanding of the nature and extent of the privilege created by s 126H(1). He has not done so yet. If it be the case that the identity of his informant as the source of the information in the document has already been revealed in the public domain or is ascertainable as having come from the informant, Mr Lewis must answer the subpoena by producing the document. On the other hand, Mr Slipper’s mere speculation that it may be that Mr Ashby is the source cannot be the basis on which the Court would require the subpoena to be answered.

34    Accordingly, it is appropriate to dismiss Mr Lewis’ interlocutory application, but to stand the subpoena over for one week to be answered so that Mr Lewis can readdress the question of whether he can assert the privilege.

Associate:

Dated:    18 July 2012