NSW joins Victoria in dismissing shield law protection for all but the mainstream

Chris Merritt in The Australian reports that NSW Attorney General Greg Smith plans to follow the Victorian lead on a state shield law to protect journalists sources through a rebuttable presumption against disclosure in NSW courts. Welcome news to that point. But his views echo those of Victorian Attorney General Robert Clark, and before that Opposition Senator Brandis, critical of what they claim are protections that are too broad and accepted by the government on the motion of The Greens in recent Commonwealth legislation. The protection they say should be limited to journalists working in the mainstream media.  Mr Smith outlines the plan to limit the protection to journalists working for a mainstream media organisation as justified because they are reputable, and as necessary in order to "exclude amateur bloggers, activists and criminals seeking to mislead police and the mainstream media." Much of the content  of blogs was opinion, and might include the authors' prejudices and spin instead of reporting the news.

Some questions:

Why should protection turn on the existence of an employment relationship? Paid, unpaid  amateur or professional are silly distinctions. A definition by reference to function is the only sensible approach. A freelancer not currently employed but working on a story to submit for later publication would be excluded if an employer-employee relationship is a crucial element of the definition.

Mr Smith continues, referring to "amateur bloggers, activists and criminals" all excluded as a job lot. Is a professional blogger to be covered but all amateurs not, regardless of active involvement in collection and dissemination of news and information? Are paid journalists who also write or contribute to a blog for no payment, amateurs in that capacity? (If the activist tag is relevant some employed journalists working for mainstream media organisations might have questionable claims.)

How to define "mainstream media"? Just traditional print, radio and TV? Is any celebrity magazine for example in because it appears in print but all online digital only publications automatically out?

Are all mainstream media organisations by definitiuon "reputable"?

Mr Smith suggests a distinguishing feature is that "the content on blogs is opinion" as if this isn't the case with dailies or radio at its finest on some stations that come to mind. Then finally:

Mr Smith believed the courts would be more likely to protect confidential sources if the shield law was narrowly confined to journalists instead of extending to bloggers. "When you widen the field I think it waters down the authenticity of the claim," he said.

Not all bloggers should have a claim to any special privilege in protection of sources. But those bloggers and others who use new technologies and are active in the collection and dissemination of news should not by definition be excluded from a privilege to be extended to anyone who works for a living in the mainstream media. The Brandis criticism that the Commonwealth definitions extend privilege to anyone who publishes anything, anywhere seem farfetched.

And nationally consistent legislation not significantly different versions of protection should continue to be the aim.

On a different note Robin Speed of the Rule of Law Institute of Australia is a lonely voice out there. With media organisations having pressed for years for legislation to provide for a rebuttable presumption of non disclosure, Speed in this Background paper on Journalistic privilege, the NSW Crime Commission and the SMH, suggests the whole idea is misleading spin and gives no meaningful protection only a false sense of security to journalists’ sources.