Shield laws, and the fine print

Independent Andrew Wilkie introduced in the House of Representatives on Monday his bill to shield journalists sources from disclosure, welcomed by Australia's Right to Know and presumably others in the media. Opposition Shadow Attorney General Senator Brandis  had beaten him to the punch, to less apparent acclaim. Debate is yet to occur on either bill.

Both reflect key features of the privilege taken from the New Zealand Evidence Act including the definition of journalist and news medium. In essence

Journalist means 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. News medium means a medium for the dissemination to the public or a section of the public of news and observations on news.

However the explanations of the definitions differ. The Wilkie Explanatory Memorandum states

"a journalist should be operating in the course of their work: This means that the journalist should be employed as such for the privilege to operate, and private individuals who make postings on the internet or produce non-professional news publications, where this is not their job, will not be covered by section 126H." 

The Brandis EM doesn't refer to the line of demarcation in the same way:

"The privilege applies to disclosures to someone who, in the normal course of that person’s work, collects information in the expectation that the information may be published in a news medium. It is not intended that a claim for privilege could be made in respect of disclosures to a non-journalist that might be opportunistically relayed to a news medium outside of the normal course of that person’s work."

I've pointed out to Wilkie's office that his EM suggests a free lancer not currently employed doing something for later submission to publishers won’t be considered a journalist for privilege purposes because of the absence of an employee-employer relationship at the time the source provided the information. Surely if someone is acting as a journalist that should be sufficient, not whether a person can demonstrate employment at the time.

I agree any private individual who simply posts something on the internet shouldn't have a right to the privilege. However in my view, despite the EM, the definition seems wide enough as it should be, to cover a person not currently employed who publishes on the internet routinely in providing a news service, ie a person who has a legitimate claim to be a citizen journalist.

The Brandis EM  refers to public interest considerations that could override privilege as "the primacy of the administration of justice and the need to protect national security." The Wilkie EM doesn't elaborate.

The bills legislate for the privilege to apply in all proceedings in any Australian court for an offence against a law of the Commonwealth. The states are another issue.

The Wilkie EM makes the point that the legislation does not provide a journalist with a right to refuse to provide information where the information would not lead to the disclosure of the identity of the source.

It also explains that the legislated privilege does not affect the power or authority of the Parliament or a parliamentary committee.