Sam Badenpowell is an English backpacker who has decided to base himself in Canberra for a while. Sam is not keen to work at a bar like many of his comrades and so has established his own online magazine Female’s Fortnightly. The magazine is only accessible in Australia to subscribers who pay a yearly fee of $10, but it is hosted by a United States server. Sadly Sam’s endeavour has not been as successful as he would have hoped, and he is keen to include some big stories in his next edition to increase his current subscriber list of only 5,000 people.

Sam sets out on the trail for some gossip and decides to enlist the help a friend he met on a Train-Around tour throughout Europe, Tom Tattletale. Tom is a freelance journalist, and there has always been a healthy level of competitiveness between Sam and Tom. Sam arranges to meet Tom for a drink at a popular local bar called Clandestine (which Sam knows has an annual turnover of over $3 million). Tom has previously been involved in some high-profile matters that Sam thinks the public has a right to know about. However, Sam knows that Tom often talks quite cryptically, so before Tom arrives Sam hits ‘record’ on his Smart Phone and puts it in his pocket, just in case Sam is not able to work out what Tom is hinting at during their conversation and needs to listen to it again.

Tom: Well hello Sammy, how goes the online journo business?
Sam: Not too good actually, I’m looking for stories to really put my mag on the map, but it seems like it’s fairly quiet out there on the gossip scene…
Tom: Hahaha, not true matey, you’ve just got to know where to look. For instance, just between you and me, are you aware of the antics of the big boss of Community Wellbeing? For a public servant he doesn’t much comply with those obligations of his… talk about a guy who likes some cream with his coffee!

Before Sam gets a chance to clarify with Tom what he means, Tom jumps out of his chair and exclaims ‘Oh bummer, I forgot I have a date tonight with Diana Ferguson! Sorry Sammy, we’ll have to reconvene later’. With that, Tom leaves Clandestine.

Sam is rather confused about Tom’s statements, but thinks to himself how lucky it is that he recorded their conversation. He listens to the recording and thinks he works out what Tom was hinting at. While there is an ACT Department of Communities, he thinks that Tom was talking about the Commonwealth Department of Community Wellbeing. He also thinks that the reference to ‘the big boss’ has to be to Larry Leisure-Suit (the Secretary of the Department of Community Wellbeing) and that the reference to his failure to comply with his obligations is probably referring to his financial accountability obligations and must mean that there is some kind of impropriety going on.

Sam Googles Larry and his department and discovers that it is currently advertising for a contract for coffee suppliers for the annual Department of Community Wellbeing fun run. Sam cannot see anything written about allegations of impropriety regarding the contract, but given Tom’s comments he reaches the conclusion that Larry must be accepting bribes in relation to the contract.

Sam grabs his rollerblades and scoots home as quick as he can. As a taxpayer, he is quite angry at Larry for not ensuring that the Department gets best value for money in its tendering processes and instead puts his own interests first. He thinks that the public has a right to know what happens in high office like this. He considers submitting an application under the Freedom of Information Act 1982 (Cth) to the Department of Community Wellbeing for access to documents relating to the contract, but is worried that someone else might break the story in the meantime.

On Saturday, Sam publishes an article on Female’s Fortnightly titled ‘The cat that swallowed the cream – Public servants taking kick-backs wasting our money’. The article contains the following paragraph:

The Secretary of the Department of Community Well-Being is a conniving, scheming man not fit for such a high office. He has been accepting bribes in exchange for favourable contract results, including the coffee contract for the Department’s upcoming fun run. Do we really want a specimen like him making decisions about our future wellbeing?

The next day, Tom sees the article and is astonished. He calls Sam and says ‘You idiot Sammy! I assume that you’re referring to Larry Leisure-Suit but I was talking about the head of the Division of Lactose-Free Supporters within the Department, Bobby Bloating. And there is no bribery – I was talking about how Bobby claims to have a lactose intolerance but actually takes normal cream with his coffee! Not to mention the fact that I said that tip was only between us’ Sam then gets a call from Larry’s office, and is told that Larry is not happy with Sam’s article, and is considering bringing defamation proceedings against Sam. Apparently the Minister for Community Wellbeing is threatening to sack Larry.

Questions:

(1) Has Sam defamed Larry in his online article ‘The cat that swallowed the cream – Public servants taking kick-backs wasting our money’ and are any defences available to him? In your answer, discuss any jurisdictional issues that arise in relation to Female’s Fortnightly. (8 marks)
(2) Has Sam breached Tom’s confidentiality? (5 marks)
(3) Has Sam committed an offence(s) under the Listening Devices Act 1992 (ACT)? (5 marks)
(4) Should public interest or benefit be available as a defence for Sam’s conduct? What should the elements of such a defence be, and would Sam’s conduct satisfy these elements? (7 marks)
(5) Which of the following entities referred to in the scenario is not bound by the Privacy Act 1988 (Cth)? (select one) (1 mark)
a. The Commonwealth Department of Community Wellbeing.
b. The ACT Department of Communities.
c. Female’s Fortnightly magazine.
d. Clandestine.
e. The Minister for Community Wellbeing.
(6) If Sam had have submitted an application for documents under the Freedom of Information Act 1982 (Cth) which of the following is not a valid reason for the Department of Community Wellbeing to decide that access is exempt? (select one) (1 mark)
a. The documents are official documents of the Minister for Community Wellbeing that contain matters not relating to the affairs of the Department of Community Wellbeing.
b. The documents contain legal advice and are therefore subject to legal professional privilege.
c. Disclosure of the documents could disclose information concerning the business affairs of the tenderers to the coffee contract, which could unreasonably adversely affect the business, and it is not in the public interest to disclose them.
d. Disclosure of the documents may result in unnecessary and misinformed public debate about the ongoing tenure of the Secretary of the Department of Community Wellbeing.
e. Disclosure of the documents would involve the unreasonable disclosure of personal information about a person and it is not in the public interest to disclose them.

(7) If Larry were to bring legal action for defamation against Sam, which of the following statements is not correct regarding the law relating to the disclosure of sources? (select one) (1 mark)
a. Sam could be held in contempt of court for failing to reveal Tom as his source if he is ordered by the court to do so.
b. ACT evidence legislation could protect Sam from being compelled to reveal Tom as his source.
c. Under the common law, Sam may not be required to reveal Tom as his source during the interlocutory stages of the proceedings in accordance with the newspaper rule.
d. Under the common law, which is reflected in legislation in some States and Territories, judges normally regard themselves as having a discretion as to whether to compel journalists to reveal their sources.
e. During the trial, Sam could use as a defence to contempt of court his ethical obligations under journalists’ codes of ethics if he refuses to reveal Tom as his source.

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