‘This is not news? What a sorry and pathetic state Australian journalism is in when it comes to this. End of story.’
With this rhetorical flourish, The Bulletin magazine’s editor Gary Linnell signed off his attack on those media outlets and identities such as the ABC, the Herald-Sun and 3AW’s Neil Mitchell who took issue with The Bulletin’s cover story on Martin Bryant — the man who killed thirty five people at Port Arthur a decade ago.
Mr Linnell, writing on the website www.crikey.com.au on March 30, defended his decision to run stories on Bryant in that week’s edition of The Bulletin on the basis that it was newsworthy, and that to refuse to discuss Mr. Bryant was irrational.
Mr. Linnell has a point, but he is by no means on the side of the angels in this debate. While the articles on Mr. Bryant, which included an interview with a psychologist and Mr. Bryant’s mother, would seem to be justified, the decision by The Bulletin to publish on its website, transcripts of interviews between Mr. Bryant and his lawyer, was not.
Mr. Bryant’s lawyer, Hobart solicitor John Avery denies that he gave these transcripts to The Bulletin, but just how the magazine came into possession of them is a mystery. If a lawyer or any other professional (one informed individual told me that a psychiatrist in the case might have handed the interview transcripts to The Bulletin) involved in Mr. Bryant’s case gave the transcripts to The Bulletin, then they have acted with scant regard for human rights or ethics. And ditto The Bulletin for publishing them.
What is said between a lawyer and his or her client is a matter between them and no-one else, just as the confession of an individual to a priest, or the contents of a consultation between a doctor or psychologist and their patient should also be confidential.
This is no trite matter. One can imagine that Mr. Linnell and his colleagues at The Bulletin would object mightily if a media outlet, or anyone else for that matter, decided to publish transcripts off the record conversations between a journalist and an interviewee.
Mr. Linnell would argue in such a case that it is a vital ingredient of our democracy that individuals know that they can speak to journalists, and know that they will not be identified as the source of information. And Mr. Linnell might also observe that individuals will be less forthcoming with information and views if they know that what they say might be read by the rest of the world.
In publishing Mr. Bryant’s interviews with Mr. Avery, The Bulletin magazine and those lawyers or medical professionals who provided the material, are setting a very dangerous precedent.
Governments and law enforcement officials would like nothing more than to abolish, or at least severely curtail, the pall of confidentiality that is cast over conferences between lawyers and their clients. Since 9/11 governments in the US, UK and Australia have used the pre-text of fighting a war on terrorism to curtail lawyer-client privilege.
The Bulletin’s decision to ignore lawyer-client privilege in the case of Mr. Bryant will no doubt be useful fodder for those who seek to erode further this important human right.
That is, of course, assuming that Mr. Bryant did not consent to the release of the interview transcripts. There is no evidence that he did, which makes the actions of The Bulletin unethical.
Yes Mr. Bryant has committed heinous crimes. And yes, there is no doubt some ongoing community interest in knowing how the evil that he committed came to pass in April 1996.
But Mr. Bryant has the same legal rights as any other citizen in our democracy. He is entitled to the same privileges that the law accords any other individual. And one of those privileges is that he can be confident that when he was told by his legal advisers and doctors a decade ago that he could speak freely to them, because what he told them was said in confidence and would remain in confidence, he was entitled to rely on those assurances.
Mr. Bryant has been betrayed by The Bulletin and those of his erstwhile advisers who provided the interview transcripts to the magazine.
No doubt, some will argue that the public interest outweighs Mr. Bryant’s right to rely on lawyer–client privilege. That is a very dangerous and specious argument. It is a slippery slope point if you like. Once Mr. Bryant’s right to lawyer-client privilege is stripped from him on the grounds of ‘public interest’ what is to stop another media outlet that finds similar material landing on its desk from publishing it.
Despite the posturing and self-righteous rhetoric from Mr. Linnell and The Bulletin it is clear that he and it were beastly careless about principle and ethics when it came to publishing the legal interview transcripts in this case. They were driven by sensationalism and the desire to sell copy.
Greg Barns is a columnist with the Hobart Mercury and a member of the Tasmanian Bar.
First published, today, on: www.henrythornton.com