Since the David Kelly scandal revolves around confidentiality of sources, here’s an edited transcript of an interview post-graduate law student Georgia Price did with me on the topic on May 16 this year. Media accountability gets a going over too.
Georgia: Have you ever given promises of confidentiality to sources before?
Georgia: Do you adopt any particular methodologies in your work practices, in the notes that you take or anything like that, so that your sources can’t be discovered by anyone? Perhaps even to the stage where if there was any kind of court order to look at your notes that it would be impossible to trace them back to the source?
Margo: In matters of particular sensitivity where the leak could be considered a breach of the Crimes Act I have shredded cabinet submissions, so that if the police ask I just haven’t got it.
Georgia: Has pressure ever been applied to you by anyone to reveal a confidential source?
Margo: There was one case years ago when I got a cabinet submission. Crean was the Minister. It was, I think, a cabinet submission on something to do with training type stuff. It was one of those leaks that once it was made public they had to change their policy. They called in the Federal Police and I had to go and do an interview with the Federal Police, but I wouldn’t say they put pressure on me. They said ‘Where did you get that from’ and I said ‘I’m not telling you’, and they’d gone to the department and they’d worked out all these people in the department who had past connections to me, some of them whom I’d completely forgotten, and the police said to me ‘Do you know this person’ (I refused to comment.)
Georgia: Ok. Have you ever disclosed the identity of a confidential source?
Margo: To whom?
Georgia: To anyone in a professional capacity, I suppose. Anyone who asks for it –
Margo: Yes, I have.
Georgia: Yes, ok, and what were your considerations in disclosing the source.
Margo: I can’t remember any particular examples, but once or twice I have disclosed the identity of the source to my editor on the basis that I was trying to … it’s in cases where you’re writing something that’s a shock. For example if I wanted to write ‘The numbers are there for Mark Latham to challenge for the leadership’, Noone would think that. And I would disclose in the context of: “This story is cast-iron, the source will not be able to be revealed, so I’ll have to write “it is understood” or just write it as fact and I want the story on page one.’
Margo: So it’s a reassurance for the editor that the story is well based.
Georgia: And did any consequences flow from you disclosing the source to your editor? Did anything ever happen?
Margo: No, it was disclosed on a confidential basis.
Georgia: Right, so it never went outside the publication, in other words.
Georgia: Ok. Moving onto issues of journalistic ethics. Are you a member of the Media, Entertainment and Arts Alliance?
Georgia: Do you know about the protection of sources clause in the Code of Ethics of the Australian Journalists’ Association?
Margo: Not really, I know there is one. I just have my own. It’s just something you say to sources. I mean often you don’t even say that you won’t reveal your source to your source.
Margo: It sort of depends on the relationship.
Georgia: So it’s not like they would make a formal-type request
Margo: Well, it’s understood. So in one sense it’s a matter of personal honour to fulfil a promise and in the broader professional sense it’s a cornerstone of the profession’s ability to achieve the results we’re there for which is to uncover the truth.
Margo: God knows, there’s enough against us. You know, like we’re now against the machine, the establishment, the establishment’s machine, you know, the constant flow of journalists who, unforgivably in my view, go off to the other side and get paid double the money to snow you. We have many many impediments to doing a reasonable job and this is one of the few things we’ve got going for us. If you’re in a job where you are concerned with public policy or matters of public interest, it’s one of the things we’ve got going for us: the well-understood notion that we will not reveal our confidential sources to the extent of going to jail if that’s necessary.
Margo: There is a downside to all this which worries me. Which is that – well an extreme case of it is – I don’t know if you read about this New York Times person –
Georgia: Yes, Jayson Blair.
Margo: That that can be used by unscrupulous or unprofessional journalists to cover for the fact that they might have gone further than what their source said or that they are running a line for sources. And, you know, in political journalism and police journalism in particular you can become captured by your sources, either deliberately or otherwise, so that you do lose an accountability mechanism by this obligation. This does worry me but I really can’t see any way out of it.
Georgia: What about rather than just perhaps misquoting a source or using information irresponsibly, what about the complete fabrication of sources? And then trying to pass that information off as anonymous? Have you ever known anything like that to happen?
Margo: Not personally, but it’s certainly something that could happen and that has been shown has happened, the use of made-up quotes.
Georgia: Yes, it’s actually something that the courts allude to quite a lot in the contempt of court cases that journalists are involved in: that they’re not really willing to extend the law any further than what it is at the moment because there are fears about the fabrication of sources.
Margo: Well, there are accountability issues.
Georgia: Ok. Do you think that there are sufficient disciplinary processes in place at the moment for journalists who, for example, breach their Code of Ethics in those kinds of situations like fabrication of sources or any other ethical breach?
Margo: Well, I mean, there is effectively no external accountability. I’ve written about this extensively. I’m actually an advocate of regulation.
Georgia: Are you?
Margo: Yes. Which is a very minority position.
Georgia: I’m actually, in the conclusion I’m coming to, I’m starting to lean a little bit more towards that.
Margo: I gave a speech (see Ethics overboard: How to promote integrity in the moment of choice) to an interesting group in NSW called the ‘Corruption Prevention Network’. It’s a group of public servants, basically auditors, across departments who do this informal networking thing basically because ethics is an issue at a stage where tokenistic measures are required to be taken. So you have an ethics officer in a department or corporation or something, but no one will take a scrap of notice of them so they form these networks to try and give each other moral support for an impossible duty.
I did the keynote for them last year and floated a proposal for better ethical accountability across the professions and included journalism in that. Now, I know journalism is not a profession – God knows what it is but it’s not a profession. However, just for the sake of this I included it as a profession. The approach I advocated (it’s just an idea, it’s nothing I’ve gone into great detail with, just meant to open the discussion) is that I do feel that self-regulation, of itself, is unworkable. And I think that’s been shown in the accountancy professions and the legal profession, surveying and journalism.
It is a recipe for cover-ups, looking after mates and putting things in the bottom drawer. So I thought it would be a good idea if the government had framework legislation which different professions would register under. There could be a body that’s elected, or community reps or whatever; there would be powers, disciplinary powers, but what you’re doing is setting up a framework. There would be no other government involvement, so that the membership of the board running it would be worked out by the profession – elected or appointed community reps. Their procedures would be their own etc etc but they would have power to enforce compliance. It would be, I think, particularly suited to journalism where the real problem conceptually is government regulation of the press, which is always a no-no because of what that means in democratic terms.
One of the key indicators of a society that is transforming from democracy to fascism or dictatorship is government control of the press. The exception in Australia was the Australian Broadcasting Tribunal which was established under the philosophy that a TV licence is a privilege. To earn continued use of that privilege you had to prove every three years that you were fit and proper and ethics came into it. I was a big supporter of that, mainly because it helped to get Alan Bond. But it also put Alan Jones and some of the more irresponsible people on the block and required them and their employers to justify some of their more extreme actions. But we all know what happened to that – Labor abolished that form of accountability and you’ll never get that back.
Georgia: So, did you envisage, for this body that you talk of which has certain powers, did you envisage compulsory membership to some kind of professional organisation for journalists? Such that the powers of such a body might extend to suspension, or fines in that particular
Margo: In theory I would, but that would never, ever happen. There’s particular difficulty with journalism in that it isn’t a profession. There is no problem making it compulsory for architects, accountants, lawyers, engineers and so on, because to call themselves that they have to have done specific courses and graduated in those courses and do all this training business. There’s no problem with every lawyer belonging to the Law Society. You’ve got to be admitted to practice in the Supreme Court of that jurisdiction to do so.
But with journalism, I mean I’m not trained! I was a lawyer. I had a career crisis early (luckily). When I was 27 I wrote to the Courier Mail and said ‘Can I be a cadet?’ and they wrote back and said yes. And I started work on Monday. So there’s nothing specific at all, anyone can do it, and of course the other thing is that some of the most powerful people in the media are proud to say they’re not journalists. John Laws, Alan Jones, and I don’t think any of the shock jocks are journalists apart from the guy at 3AW, Neil Mitchell. So, I mean, what do you do with this?
Georgia: Yes, you can’t just not allow them to broadcast.
Margo: Oh you can’t do that.
Georgia: That’s right.
Margo: So I take the approach that the former president of our union took, a guy called Tom Burton who is now managing editor of the Herald. When he was president his vision was to professionalise journalism through voluntary means, to transform the Alliance as far as it related to journalists into more of a professional association. So that to say that you’re a member of that is to say that there are certain guarantees you can make as a journalist, and that’s something I’m trying to follow through with on the Webdiary.
I’ve written a chapter for a book that’s coming out on media ethics edited by Catharine Lumby and I’ve done a chapter on online ethics. It was, you know, quite difficult trying to work out what Webdiary’s ethics were and how they differed from the ethics of hard copy journalism. And I’ve found that they’re different – totally different! You know, you have to adapt them. But as part of that process I thought I’ll put that chapter up and I’ll put up the Alliance Code of Ethics and the means for complaint; and the Herald’s Code of Ethics, and the means of reader’s complaint under that. Of course there are none – we still can’t work out how to enforce it because it’s such a minefield.
So I’ve just come up with my own method which is that if you think Webdiary has breached the Herald’s Code of Ethics then you can complain to my boss, the editor of the Herald online and send a copy to me and we will print your complaint and our reply online. So the idea is to say well, you know, ethics are my responsibility. Then I drafted a Webdiary Code of Ethics, which was what my duties were, and then what contributor’s duties are.
The interesting thing about interactivity is that contributors have no ethical duties in theory, but I have certain expectations and so should other readers, really. So, for example, ‘Please don’t plagiarise and if you do and I find out I will expose you on Webdiary and here are the reasons you shouldn’t plagiarise and it’s very easy not to.’ For example, if you really like an article, send me the link! And if you really like someone’s ideas, tell me that you like this idea and why.
As soon as I put up that chapter I’m going to put all this up and the risk of course is that you’ll get these mad bloody Palestinians or Israelis picking you up on every f#!king thing. So I’ve reserved the right to rule out frivolous complaints, but on the basis that I will run them and then say this is frivolous and I’m not going to say anymore. But they still get their say , and hopefully I’ll have a different link on the right-hand column where these complaints and answers can be stored so that people who come to Webdiary in the future and are interested in the approach it takes ethically can look at all the previous things that have been spoken about. Hopefully the archive builds precedents.
And the other thing I’m going to say is that Webdiary’s Code of Ethics is a draft Code and please have input into that. Now, most readers aren’t really interested in it at all. But I’m hoping to encourage that interest.
Georgia: Yes, rather than the interest of fanatical people who would seek out that of response.
Margo: It’s a bit hard for me, because I’m some kind of lightening rod for the right and some sort of symbol for the left so I’m bound to get some pretty rough things. But I stick to the view that I am very loathe to see ethics in a black letter law sense. I think that’s one of the really damaging things about black letter, because it means that it’s just an open invitation for lawyers and others to say, ‘What’s the way around that?”. Whereas I see ethics as statements of broad principles which underpin the professional’s role in society and they are therefore, (1) ideals to strive for, which by definition one will never meet completely, and (2) principles to apply in particular cases which can be very difficult to resolve.
So part of my idea for this sort of self-regulation body with a legislative framework is that the particular profession involved or members of it are encouraged to seek advisory opinions when they get a little knot in their stomach BEFORE before they act. And for those advisory opinions to be pro forma so that they don’t disclose the identity of people who seek advisory opinions, but to have a constant flow of – well one member had this issue and this is what we thought, and encourage discussion.
And then if there is a breach, unless it’s terrible thing like a basic conflict of interest where you’re ripping of people, then the first offence or whatever is a reprimand with reasons given. So what you’re trying to do there is create an atmosphere where ethics are routinely, as a matter of mainstream discourse for the profession, discussed and debated. Not something that, you know, you find out about later or you think, oh dear, I’ve f#!ked up that one or something hits you like a ton of bricks.
Ethics have been delegitimised, and I blame economic rationalism, but I blame economic rationalism for everything concerned with the collapse of values in society. Ethics are an impediment to making money, that’s what they are! And not only aren’t ethics valued in our current value system, but it is a rod on your back if you’ve got them! You’ll make much less money if you’ve got ethics.
Georgia: So just an obstacle –
Margo: Yeah! And people who’ve got ethics are stupid, or troublemakers, and bosses are terribly uncomfortable with ethical people in their organisation because it’s such a confrontation. You know, maybe you should think about that – ‘Oh god, help me! No thank you.’
Georgia: So maybe we need to be thinking about ethics more, as you said, before breaches occur. To bring them back as part of the everyday activities of – not only journalists but we could talk about any profession – and open discussion, rather than just examining when someone might have done something really bad. Try and bring them back into everyday work and life and try and anticipate ethical problems in the workplace as society develops and as we have these things, like online web diaries or online journalism.
Margo: It’s a way of distinguishing Webdiary from your regular web log. You know, I am under constraints that webloggers aren’t. And you know, ideally, I’d like to see in time web loggers who wish to be able to say that they comply an ethical code to get together and form an association and come up with their own ethical code. Which, naturally, I think creates confidence in readers. With Webdiary, people who read it know that if I make a mistake it will be corrected as soon as it comes to my attention, it’s as simple as that.
Georgia: I just wanted to quickly ask you a couple of questions about the law as it stands at the moment on protection of sources. NSW is the only jurisdiction at the moment that has a statutory privilege, so to speak, whereby journalists might be allowed to refuse to reveal their sources in court. The judge has to weigh up any possible harm flowing from disclosure of the source with the obvious public interest in having all information available to a court to properly administer justice.
Margo: Oh bullshit. The courts treat journalism with contempt. Basically all they care about is protecting corporate interests as far as I’m concerned. I have nothing but contempt for the courts in this regard. In particular defamation. And they can get f#!ked. No, honestly, they can get f!#ked, as far as I’m concerned.
Georgia: Yes, defamation is the usual arena in which this issue comes up because if someone is trying to sue someone and they don’t know who defames them –
Margo: What are the systems in place to stop the public knowing the truth? There’s the Crimes Act, there’s the threat of corporate retaliation, there are threats to free speech in this society fostered by the f!#king courts.
You see it in local government all the time, where some poor bastard says “I’d like to protest about this development application”. The next thing they know they get a writ in the mail from the bloody developer and they have to leave town because they’re poor and the developer’s rich. The judges can clean up they’re own act as far as I’m concerned before I’m going to hand over a decision about the correctness of my decision to them. I’m very happy to defy them, very happy. That was a wonderful breakthrough, Theophanus (the case where the High Court implied a right to free speech in the Constitution). And they’ve been retreating from it ever since, as you know.
Georgia: In 1994 there was a Senate Standing Committee on Legal and Constitutional Affairs which into the Rights and Obligations of the Media and one of the terms of reference for the inquiry was this idea of legislating in some way to provide a legal privilege for journalists against disclosing sources. The recommendations were never implemented. They promised a second report which was never released. The Senate Standing Committee basically said that when the change of government came in, it wasn’t an important enough issue to have any further work done on it.
Margo: I’m just so hardline on this. The idea of the government granting me a privilege, well I’m sorry, it’s already my privilege. This is terrible, I just get angrier and angrier. Yet I’m also very concerned about the accountability of journalists, as I’ve already explained.
I have talked about it quite a lot over the years, the need for accountability, and the reason is that I am very uncomfortable about the media, which is powerful there’s no doubt about it, holding politicians and public figures to account, sometimes in the most unfair and distorted ways, while having no accountability ourselves. I’m completely disgusted by the hypocrisy of it. Sickened. And I want accountability, but the journalist is not the person to target for accountability.
We work, you know, in a very corrupt system of media concentration and the collapse of the separation between editorial and advertising and the enormous pressures on us that result. The Code of Ethics of our union, and – if it’s done properly, as it has been in the Herald with the internal Herald Code, it’s actually a source of power for journalists to fight for ethical considerations, to fight the bosses – and to win. It’s a little bit of power that we have.
You know, the public can blame the journalists all they like but we are operating in a particular system here and I suppose that’s the reason that I get so bile driven at this idea of the courts granting us privileges. We’ve got very little to protect us as individual journalists trying to be ethical, and you know, they’re just not going to take it away. And this is where we come up trumps, that it is very difficult to send journalists to jail. You know, there aren’t many people that will stand up and say ‘Well I’m going to break the law then, judge!’
Georgia: There aren’t all that many cases, in fact, where journalists have gone to jail, only a handful. One of the things I’m interested in is, does that mean a) that these issues aren’t getting all the way to court all that frequently or b) that journalists are, somewhere along the line, just disclosing their sources. And it’s very hard to know because the cases where journalists may, indeed, disclose their sources aren’t reported.
Margo: What about that big case a few years ago involving the Herald where the plaintiff asked for an order and got one, or nearly one, for the journalist to reveal his source so that they could sue the source for defamation?
Why would they want that? Why wouldn’t they want to sue the newspaper for defamation? It’s because it’s not for defamation. It’s to create fear and loathing among people they want to exert power over. And this is the safety valve of journalism and the free press – there is always a chance for the whistleblower to get somewhere.
In these particular cases I do see the courts as tools of the establishment. I’m a lawyer and a great believer in the rule of law – I’d fight to the death for the rule of law on things like ASIO, I believe in a Bill of Rights, love the courts, all the rest of it, but they do rush towards allowing themselves to be abused when it comes to journalists.
The Courts hate journalists! And we hate them! And we’ve both got very good reason for it. They don’t respect us. And you know, if they don’t respect us, I’m not going to respect them when it comes to my professional role. They’ve got no right not to respect us. We are just as important. I believe in the fourth estate. The three great estates – there is a fourth and it is us and we do deserve respect. And when they start respecting us well they might get a nod as well when it comes to this area. It is war and it always has been, hasn’t it?
Georgia: Well –
Margo: You know ‘You guys don’t make enough checks’ and you know, even in Theophanus, you haven’t “taken all reasonable steps to check’, or ‘You should have looked at that and developed that line’. I mean, spend a day in my shoes. Try and get passed first base.
Georgia: That is another thing I’m looking at in my paper is this real hostility that seems to be there between journalists and the court at so many different levels.
Margo: They’ve got no idea! Their initial position is establishment. And I don’t really understand why they take that attitude – they think we’re all irresponsible twerps and all the rest of it. Yet I’m very uncomfortable with the fact that we aren’t accountable to them. How else can it be?
Georgia: That’s right, I mean, they have their authority and they hate people who stand up to that authority in any way, as journalists often have in the past, so –
Margo: Yes and in the Court’s favour is, what principles do we have for fairness? I mean, look at Rupert Murdoch! He ran a worldwide propaganda campaign for George Bush. How is he accountable for that? Not at all! I’ve heard how those poor journalists at the Tele, during the war, would have these funny little victories and they’d go out and drink all night and they’d say ‘I got that photo in and snuck that caption in’. It’s complicated.
But if there wasn’t a power struggle you’d be worried. If the media was beyond the law you’d be worried and if the law controlled the media you’d be worried.
Georgia: That’s right. But at the same time, the law does obviously impose a lot of restrictions on the media
Margo: Huge restrictions!
Georgia: And there should always be a level of restriction –
Margo: They pay very little regard to free speech, you know? That Pauline Pantsdown judgment, I was there for that because I was following Hanson in the ’98 campaign. I couldn’t believe it! I mean, that Justice De Jersey, who I knew as a barrister. Tony Fitzgerald wrote a fantastic paper on that judgment which he delivered to the Communications Law Centre later that year. It was the most brilliant legal paper on how f!#ked that judgment was. Then the High Court didn’t grant leave to appeal. Really!? So much for their commitment to free speech.
The very idea that Pauline Hanson, of all people, who had made so many lives hell – and I defended her right to free speech no matter bloody racist it was because she’s got a right to free speech – sues someone for satirising her! The song “I don’t like it’ was pretty harmless satire, I thought. It was funny, I danced to it.
Again that Queensland judgement gets back to the conservative establishment. I’ve been a refugee from Queensland for so long, and I thought when I went back to Brisbane, ‘Brisbane’s looking pretty cosmopolitan.’ Then you turn up in court and just go ‘What the f!#k is this!?’ You know? I don’t know if I’ve been very helpful, I didn’t think I’d get so stroppy.
Georgia: That’s alright, that’s good!
Margo: Because I’m sympathetic to accountability. But I just don’t trust the judges at all. They have nothing but contempt for our role. So, you know, I have nothing but contempt for their stance on this.
Georgia: Ok, well thank you.
Margo: Look, you know there’s a lot of irresponsible journalists. There are a lot of irresponsible lawyers, but the role, if you focus on the role then you focus on enhancing the viability and ethics of that role, not destroying the foundations of it. That’s the way I look at it. Better a corrupt and corruptible free press than a controlled press.
It depends on whether you’re optimistic about the human condition or not. I mean, while ever there’s free speech there’s always a chance for progress. Without free speech there’s no chance. There’s no chance for justice, there’s no chance for liberty. Free speech is a very important thing.
And the courts – that was the most wonderful judgment I’ve ever read, that Theophanus judgment. I remember Attorney-General Daryl Williams did a press conference when that case was up for reconsideration by the High Court in the Longe case. I asked him ‘How are you going to argue Lange given your belief in free speech?’ And he comes up with some crap about making it an exception to qualified privilege or something like that. So I said, ‘Your government does not have a commitment to free speech?’
Georgia: And what did he say?
Margo: Oh, he said ‘qualified privilege, blah blah, you don’t understand’ and I said ‘I understand very well, Daryl, I understand very well what you’re doing.’ And he just ran out. We haven’t spoken for ages.
I thought Theophanus was an absolute breakthrough to the cover that public figures have exploited for much too long in this country. And as the quid pro quo for that journalists, particularly political journalists,have got to accept that they’re public figures, too.
I’m appalled by the number of journalists who sue for defamation. It should never ever happen. To me that’s a betrayal of the profession. Richard Carlton sued, Steve Price sued, it’s a complete betrayal. We keep having it both ways. No! Not on! If we give it out we’ve gotta cop it. That’s the problem in the profession – that we won’t cop it.
The Press Council has private hearings – why? We run into court and argue about suppression orders and say everything’s gotta be public except when it comes to us. All the time! Wrong. Double standards. I’m constantly trying to think through how we can be accountable without government control. That’s the trick.
So I thought of the idea of incorporating it in a profession-wide thing, because you know, all the professions are corrupt ethically. Take HIH. I mean, a partner in Minters. Blake Dawson! Preferential payments! You know, Arthur Anderson! You know, the top names! The top partners in the top names! Everyone’s compromised here. So I thought, put journalism within that broad professional context and maybe that’s sort of a way through.