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Tuesday, September 21, 2010

Devil in the detail in shield laws and the public interest

A renewed attempt to enact a federal shield law for journalists has had a push from Victorian Attorney General Rob Hulls and from independent Andrew Wilkie, reported to be planning to introduce legislation when parliament sits next week. What is proposed, as outlined by Chris Merritt in The Australian is a  bill to create a "rebuttable presumption" that confidential sources should remain confidential, based on New Zealand legislation. This was not acceptable to the government in the last parliament with the Evidence (Journalists' Privilege) Bill that passed the House of Representatives in May last year sitting on the Senate Business List without progress. The Opposition threw weight behind the rebuttable presumption idea during the election campaign.( Update: A uniform national approach on this would require the states to co-operate-while Merritt sees grounds for some optimism don't hold your breath.)

The devil is in the detail in this, particularly who should be entitled to the privilege, and the circumstances that could override the presumption of confidentiality. The New Zealand model is outlined below. As Eric Pfanner in The New York Times reports it is an issue in the US where there is no such protection at a national level, with questions still being asked about whether such a law is needed, and some arguing in any event for the exclusion of organisations like WikiLeaks.

Pfanner also summarises developments in Europe where protection for the reporter-source relationship is cited in the European Convention on Human Rights, and many European countries have written it into law.

But, privilege in this case is always subject to buts...

In the UK protection can be waived if the court rules “that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime” and in France where there is “an overriding public interest.” The law there states that investigating people who have relationships with journalists to discover their sources “is considered an indirect attack on the confidentiality of sources.” In Sweden reporters are forbidden to disclose sources except where national security is involved. The European Court of Human Rights recently ruled journalists in the Netherlands could not be forced to hand over information unless the police, having demonstrated that disclosure was essential to the investigation of a serious crime, first obtained a warrant from a judge.

The New Zealand approach has some obvious attractions. The Evidence Act 2006 provides:

Section 68 "Confidentiality - Protection of Journalists' sources.
(1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered”...

An “informant” is “a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium

A “journalist” is “a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium.

A "news medium" is "a medium for the dissemination to the public or a section of the public of news and observations on news."

The presumption can be rebutted by application to a Judge of the High Court with the onus  on the party seeking disclosure to show that ‘the public interest in the disclosure of evidence of the identity of the informant outweighs (a) any likely adverse effect of the disclosure on the informant or any other person; and (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.”

While media organisations and journalists are talking this up in Canberra, presenting it as Chris Merritt suggests, as a public interest issue rather than media self interest, I wonder if anyone on the other side of the table is raising other matters to do with the good order of society and the collective well being of its members. Public interest issues such as the need for the media to face up to and address its failures to self regulate adequately for protection of privacy, and the ALRC proposed cause of action for unwarranted serious invasions of privacy?

Just musing...

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