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Monday, May 23, 2011

NSW Greens push for a better shield law

NSW Greens Legislative Council member David Shoebridge has introduced a bill to provide a rebuttable presumption for protection of a journalist's source in state court proceedings, setting the scene for a debate on the scope of privilege. The bill is modelled on Commonwealth legislation passed in March and would apply where a journalist engaged and active in the publication of news in print or online seeks to protect a source who gives information to the journalist in the normal course of the journalist's activities.
Shoebridge told Parliament the privilege would protect "journalists, bloggers and online commentators who may not be in paid employ but who are a necessary part of getting the word out and giving the public information in the modern online world." That modern online world appears to be a foreign one for NSW Attorney General Greg Smith who foreshadowed legislation in March that would limit the privilege to journalists employed and working in the mainstream media, probably excluding both freelancers not in an employment relationship, and bloggers even including your humble scribe. Hmph!

In the Senate earlier this year, The Greens Senator Ludlam was unsuccessful in moving to define an informant as a person who gives information to a journalist in the normal course of the journalist's activities. The Commonwealth legislation as passed refers to information given in the normal course of the journalist's work. In my view this was no great setback as the definitions of journalist and news medium together with clear statements of legislative intent were enough to cover bloggers and freelancers active and engaged in the dissemination of news, and because of Federal Court decisions that are authority for the proposition that "work" is not limited to paid activity (Braun v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 611; (1991) 33 FCR 152; Broussard v Minister for Immigration, Local  Government and Ethnic Affairs (1989) (21 FCR 472; Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258). 

In Braun, Justice (now High Court Chief Justice) French stated " It is necessary and sufficient that (work) be an activity which normally attracts remuneration." In Broussard, Justice (now High Court Justice) Gummow said " engage in one's regular occupation is to work, whether or not one's labour is in return for a wage or salary in the ordinary  sense." 

The Shoebridge bill uses "activities".

Regardless of which term is used a person seeking to claim the privilege would need to satisfy the court they are a journalist- the combined effect of definitions in the bill is that this is a person engaged and active in the publication of news through a medium for the dissemination to the public or a section of the public of news and observations on news. In addition if it's "work", that they are doing something that is a regular occupation or for which remuneration is usually (sometimes?) paid. Either way, I'm still of the view that this is not likely to be interpreted to apply to anyone who publishes anything, anywhere, anytime as the Liberal Party spokespersons suggest.

The bill, in line with Commonwealth legislation, provides for a court to override the presumption where the public interest in the disclosure 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.

All we need now is for the NSW Government to put its legislation on the table for the debate to begin. And hopefully a similar debate in Victoria, where the Government says professionals are the only journalists deserving of privilege (hmph again), and in the other states as well.

(Update: Parliament passed the government's Evidence Amendment (Journalist Privilege) Bill which received assent on 21 June 2011.)

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