Journalism shield laws

The Evidence Amendment (Journalist's Privilege) Bill 2010 (Cth) - a Private Member's Bill put forward by the Andrew Wilkie MP and Senator Nick Xenophon - has passed through Parliament. It will amend the professional confidential privilege provisions in Part 3.10, Division 1A of the Evidence Act 1995 (Cth). That change will extend protection to confidential communications between journalists and their sources by presuming the communication is not subject to disclosure unless established as necessary or that public interest concerns outweigh the disclosure.

The Bill's authors explained that -

This Bill amends the Evidence Act 1995 (Evidence Act) by strengthening the protection provided to journalists and their sources. This Bill is intended to foster freedom of the press and better access to information for the Australian public.

This Bill provides that if a journalist has promised an informant not to disclose his or her 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 their identity to be ascertained.

This is based on the premise that it is vital that journalists can obtain information so they can accurately inform the Australian public about matters of interest. Accordingly, strong protection must be provided to enable the full disclosure of information.

They went on to explain that -

The Bill does recognise that there may be circumstances where the public interest in the disclosure of information is so strong that it should be provided to the court, but it is in line with existing legislation in the United Kingdom, New Zealand and many states in the United States, where it is up to those parties who want to force a journalist to reveal their source to prove that the public interest in disclosing the source outweighs the likely harm to the source and the public interest in the information being provided in the first place.

In 2007, journalists, Gerard McManus and Michael Harvey were convicted of contempt of court and fined $7000 each for refusing to reveal their source behind stories they wrote in 2004 for Melbourne's Herald Sun newspaper. This was a clear example of when journalists would not have otherwise been able to report on the actions of the Government (in this case, the Federal Government's decision to reject a $500 million increase in war veterans' entitlements) without their source, who, had he or she been revealed, would have suffered harm .

This Bill will replace the existing provisions in Division 1A of the Evidence Act. It will include a new provision that provides clear authority for a presumption that a journalist is not required to give evidence about the identity of the source of their information. This presumption can be rebutted in circumstances where the public interest outweighs any likely adverse effect for the person who provided the information to the journalist as well as the public interest in communication of information to the public by the media. These amendments are based on similar provisions of the New Zealand Evidence Act 2006, modified to ensure appropriate application in the context of Australian evidence law.

The changes to the Commonwealth evidence regime will strengthen provisions relating to information provided to journalists and require Courts to consider whether -

• information was passed contrary to the law in determining whether evidence should be admitted, or whether a source should be revealed; and

• there will be potential harm to the source and/or the journalist if evidence is given.

The authors note that identification of the relevant public interest is a matter for the determination of the court. However, it will encompass such considerations as the primacy of the administration of justice and the need to protect national security. Questions of the applicability of the privilege in particular cases could be determined in interlocutory proceedings rather than necessarily requiring journalists to face contempt proceedings after refusing to answer questions.

Commonwealth Attorney-General McClelland said that -

The Government has worked constructively with the Independents on their Bill and provided technical assistance and advice.

These amendments are not just about protecting journalists, they are about ensuring the public is able to access information, both in particular cases and on an ongoing basis.

These amendments recognise the important role that the media plays in informing the public on matters of public interest, and appropriately balance this against the public interest in the administration of justice.

The reforms are based on the model in New Zealand legislation which provides a rebuttable presumption in favour of journalists not disclosing information in court proceedings that would identify their source. ...

I will update my State and Territory counterparts on the passage of this legislation and again encourage them to adopt similar provisions at the state level as part of Australia's uniform evidence laws.

Amendments contained in the Bill will enable journalists' privilege to apply to all cases in any Australian court for an offence against Commonwealth law.