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Friday, March 04, 2011

Journalists crack a federal shield law

Having suggested WikiLeaks would add further complications to passage of a federal law to protect journalists' sources, I was proved wrong on Friday morning at 1.20 am when neither WikiLeaks nor the name Assange were mentioned as the Senate passed the Evidence Amendment (Journalists Privilege) Bill 2010. (For the Senate Committe's report on the legislation last year see here.)

It's a good result, but will only be relevant in court cases regarding Commonwealth laws, and it remains to be seen how the courts interpret journalist (defined by function) and circumstances where the public interest should override protection of a source. NSW is the only state with a shield law but it falls short of a rebuttable presumption of protection of identity.

In the Senate the Government supported Senator Ludlam's move to clarify that a journalist did not need to be in an employment relationship to qualify for privilege, a problem for mine  with Andrew Wilkie's House bill from the start, and to ensure neutrality regarding the medium of publication. Senator Brandis spoke against The Greens amendments arguing that they opened the door to a claim of privilege by "any citizen who by any medium publishes something that might be considered to be newsworthy." While it extends to citizen journalists-paid or unpaid- who are clearly involved in publication of news, I doubt it covers every citizen who publishes anything at all.

The resulting definitions as they emerge from this are:
journalist means a person who is engaged and active in the publication of news and may be given information by an informant in the expectation that the information may be published in a news medium.
news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.

These changes need to be endorsed by the House but this will be routine.

Senator Ludlam's amendment to replace "work" with "activities" in this definition failed:
informant means a person who gives information to a journalist inthe normal course of the journalist’s work in the expectation that the information may be published in a news medium.

The substantive provisions of the amendment legislation, based on NZ law, would add these sections to the Evidence Act:

126H 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 to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.
(2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, 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.
(3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

Subsection 131A(1)
(1) This section applies if, in response to a disclosure requirement, a person claims that they are not compellable to answer any question or produce any document that would disclose the identity of the informant (within the meaning of section 126H) or enable that identity to be ascertained.
(1A) A party that seeks disclosure pursuant to a disclosure requirement may apply to the court for an order, under section 126H, that subsection 126H(1) does not apply in relation to the information document.

131B Extended application of Division 1A etc. to all proceedings for Commonwealth offences
 In addition to their application under section 4 to all proceedings ina federal court or an ACT court, Division 1A and section 131A apply to all proceedings in any other Australian court for an offence against a law of the Commonwealth, including proceedings that: (a) relate to bail; or (b) are interlocutory proceedings or proceedings of a similar kind; or (c) are heard in chambers; or (d) relate to sentencing.

The Family Law Act 1975 would also be amended:
Subsection 69ZX(4)
Repeal the subsection, substitute:
(4) In proceedings under this Part in which the court is required to regard the best interests of the child as the paramount consideration:(a) subsection 126H(1) of the Evidence Act 1995 does not apply in relation to information that would: (i) reveal the identity of a journalist’s source; or (ii) enable that identity to be discovered; if the court considers that it is in the best interests of the child for the information to be disclosed; and (b) the court must not direct, under a law of a State or Territory relating to professional confidential relationship privilege specified in the regulations, that evidence not be adduced if the court considers that adducing the evidence would be in the best interests of the child.

Section 100C Repeal the section.

Chalk this up for The Greens and independents in parliament as the ALP was going nowhere close to a result like this after its general commitment to a shield law in the 2007 election campaign.

Thanks to Open Australia for the Hansard links.

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