ABSTRACT
Counter-terrorism laws have dramatically extended the powers of police and security agencies to obtain information in terrorism investigations and prosecutions. Some of these powers also apply to other criminal cases, reflecting a gradual normalisation of such laws. One controversial avenue available to the authorities is to use information held by the media. This may involve using media recordings in evidence or, far more contentiously, a journalist may be required to provide material or answer questions that would reveal a confidential source. Although media information is used infrequently – if only because the authorities will usually possess at least as much information as the media – these strategies and the laws that permit them are troubling because, by virtue of their potential to make individuals less willing to provide information to the media, they represent a significant state intrusion into the media’s ability to obtain information. This goes to the heart of the media’s separation from government and its ability to perform its fourth estate watchdog role. This chapter examines the legal framework within which the state can use media
information in the prosecution and investigation of terrorism offences. Specifically, it aims to ascertain the extent to which Australian laws provide appropriate checks and balances on state power, especially with regard to the ability of the media to maintain the confidentiality of sources. It uses a comparative analysis, contrasting the positions in Australia and the United Kingdom. This comparison is useful because there have not been any Australian cases directly on point and, perhaps more importantly, because it shows how the established conceptualisation and analysis of the laws has been unhelpfully narrow. The argument that follows does not make a case for anything approaching absolute
privilege for journalists. It makes the more modest substantive claim that meaningful legal protections are needed and Australian laws currently fall well short of providing these. It also seeks to make a methodological contribution that moves beyond the scholarship and policy debates of the last two decades by expanding the range of laws which can be drawn upon in a comparative analysis. The central contention advanced is that by limiting the scope of source protection laws to the courtroom context (as
the existing work does) and disconnecting them from investigative powers – which have themselves expanded – recent reform debates have created an illusion of increased democratic commitment. In reality, media protections remain very limited and investigative powers may well effectively override any enhanced courtroom protection. Both the present and proposed laws limit the extent to which state controls over information can legitimately be resisted and countered. This is especially problematic in the context of terrorism and security where law, policy and practice combine to exert extensive formal and informal controls over information, and where genuine needs for security and secrecy make it difficult to discover or challenge the actions of government or its agencies.1
