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Wednesday, November 23, 2011

Federation as usual as shield laws don coat of different colours

Three Liberal party state governments are taking a different line from the Commonwealth on important aspects of shield law protection for journalist sources, the most recent instance in Western Australia where Attorney General Christian Porter has introduced the Evidence and Public Interest Disclosure Legislation Amendment Bill. The bill will amend the Evidence Act 1906 to include shield law provisions and the Public Interest Disclosure Act 2003. The whistleblower changes would extend protection to those who go public as a last resort and have been welcomed by the leading expert Professor AJ Brown of Griffith University. WA is set set to join NSW and Queensland by including this element in the whistleblowing regime.

On shield law protection, a key point of claimed difference between the Commonwealth and the states is what constitutes journalism and who qualifies as a journalist, although the extent of the difference in a practical sense is unclear. Provisions in the WA bill follow to some extent the NSW Evidence Amendment (Journalist Privilege) Act which received assent in June.

Both states eschew the approach taken in the Commonwealth Evidence Amendment (Journalists‘ Privilege) Act 2010, rejecting its Greens sponsored/ALP supported broad definitions and seeking to confine the protections to professionals, leaving uncertainty about what journalist and journalism mean to the courts.

The Victorian Government foreshadowed similar moves in March but is yet to introduce legislation.The issue was in the news there last week with Cameron Stewart of The Australian in the witness box being asked about the identity of sources regarding details given to him about an AFP terrorist raid- sources unlikely to be protected by the privilege because of a national security exception, even when a shield law is passed.

In addition to the scope issue, the Western Australian bill would create a number of other exceptions to the general right to claim journalist privilege. One is where disclosure would be an offence under another law. This brings into play the draconian s 81 of the WA Criminal Code which creates a crime for the broad and general offence of unauthorised disclosure of information. The government says the exception is necessary in order to protect "sensitive information" and the bill narrows the effect of s 81 for the purposes of shield law protection to information regarding matters of serious misconduct that would justify a public interest disclosure. (Just as well as the Court of Appeal ruled recently that s 81 imposed a duty not to make a disclosure to unauthorised persons of information relating to the business of a government department or the contents of any official papers including internal reports or documents of that department-decision at 180)

WikiMedia Commons Liftarn
 A journalist  however won't enjoy the benefit of the privilege where s 81 as modified by the bill applies, unless the confider has, prior to disclosing to the journalist, previously disclosed the information to the chief executive or other designated public authority in accordance with the Public interest Disclosure Act.

In WA journalists (whoever they are) and those in government who talk to them (they know who they are) will need to do their homework before celebrating the passage of this legislation-or claiming to be clear about what it covers.

A pity the opportunity isn't being taken to do something about s 81, limiting the offence to circumstances where an unauthorised disclosure is likely to cause harm to a serious identified public interest. (As recommended by the ALRC to the Federal government almost two years ago in respect of s 70 of the Crimes Act -on which not a word since.)

Another exception to journalist privilege proposed for WA is where there have been unnecessary and unwarranted invasions of privacy by journalists or other persons who provide information to journalists. Is that the sound of some jumping from the building in Holt St?

Read on if you are really interested. You have been warned...

The WA shield
The evidence act component of the bill as introduced would enact a general "confidential professional privilege" that may apply in certain circumstances to the content of a disclosure to a professional including a journalist and the identity of the discloser, and separately, a journalist privlilege of a rebuttable presumption that a journalist not be required to disclose the identity of a confidential source. WA will break new ground in providing protection to journalists in courts, tribunals and inquiries, such as hearings before the Legislative Assembly or Legislative Council, or committee hearings of both Houses of Parliament irrespective of whether the relevant rules exclude the application of the Evidence Act.

Journalists and journalism
The Commonwealth Evidence Amendment (Journalists‘ Privilege) Act 2011  (at the initiative of The Greens and enacted with government support) defined the key terms as:
journalism means the reporting in a news medium of facts which are, to the best knowledge of the person reporting those facts, fair, true and accurate, and includes incidental processes such as the gathering of information for that purpose; journalist means a person who engages in journalism, no matter who the person is nor the medium in which the person publishes his or her material.
(Correction 1 December 2011: the Commonwealth act defines journalist as above and news medium as "any medium for the dissemination to the public or a section of the public of news and observations on news." It doesn't define journalism. No excuses-I incorrectly picked up on a proposed Greens amendment that was not put when the bill came on for debate. Thanks to Kate Stowell an Australian LL.M student in Edinburgh with a keen eye for detail who alerted me to the error, and on this basis, is set for a fine career. Double correction 8 December: I also erred in picking up the definition of journalist from Senator Ludlam's proposed amendments. In the Commonwealth act as passed:
informant means 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.
journalist means a person who is engaged and active in the publication of news and who 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.)

WA and NSW take a different approach.The WA bill and the NSW act define a journalist as
"a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium."
The act and the bill do not define journalism but the words "profession or occupation of journalism" raise obvious issues of interpretation.The states are somewhat clear on who they intend to put outside the scope of the legislated privilege.

The WA Explanatory Memorandum (see s 20G) states:

A narrow definition of journalist was adopted to ensure the protection afforded in the Bill only extended to persons who were employed as journalists and who were acting in a professional capacity. The Bill is not intended to afford protection to persons such as web bloggers, persons who assist others to write their autobiography or persons who comment on, or disseminate information on, matters of public interest via social networking media such as twitter and facebook.
 NSW Attorney General Smith NSW explained:
It is intended that the privilege may be claimed by journalists who, in the course of their work, are broadly involved in investigating and/or disseminating to the public, information and opinion about matters that are, or may be, of public interest......The definition of "journalist" in the bill relies on the ordinary plain English meanings of the words "profession", "occupation" and "journalism". This will allow the bill to reflect contemporary journalistic practices in determining by whom the privilege may be claimed, but ensures that the privilege applies only to persons who are recognisably engaged in working as a journalist, and their employers. Consequently, the privilege would not apply, for example, to amateur bloggers or users of social networking media who happen to obtain and publish information or opinion that may be of some public interest. The requirement that the information be given to a journalist in the normal course of the journalist's work further clarifies that, for the privilege to apply, an informant must have given information to a journalist for a reason connected with their work as a journalist. It would not be open to a journalist to claim the privilege when they obtain the information in some way not connected to their work as a journalist. This is consistent with the public interest that the creation of the privilege is intended to serve—that is, to support the capacity of journalists to investigate and report on matters of public interest.
 On another occasion recently Mr Smith added
"I am not going to cover bloggers who may represent terrorist organisations or criminal organisations or who may just be ratbags."
(Guilty of the last charge, your honour. )

But apparently it wasn't just the blogger that he may have had in mind.

In answer to questions in a recent budget committee hearing he appeared to lump those who write for the online only subscription publication Crikey (and perhaps by implication those who write for the Australian edition of the Huffington Post and Monica Attard's The Global Mail both destined for our cyberspace next year) in with any run of the mill blogger, suggesting Crikey was "largely gossip" and not worthy of serious consideration as journalism.

The main contributors to Crikey are professionals clearly engaged in the occupation of journalism. Some who write the occasional piece published in Crikey (such as your correspondent) or New Matilda (it's been a while) and elsewhere don't usually get paid but payment in any event is not determinative of occupation.There is High Court authority (in a decision on an immigration matter) to the effect that " to 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" [per Gummow J in Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472  cited in Amandeep at 25.

So questions are left hanging as a result of the state legislation. For example what evidence will be sufficient to demonstrate that a person who doesn't necessarily carry the journalist tag is engaged in the occupation of journalism; does journalism need to be the primary or sole occupation; does describing oneself as a "blogger" mean "not a journalist" even though a blogger may be able to demonstrate a consistent record of reporting and disseminating news; is that the same for shock jocks who claim to be entertainers not journalists; and are journalists in the celebrity/gossip business who give new meaning daily to "current affairs" and "true and accurate" engaged in journalism?

According to a 2008 Australian Law Reform Commission report (on privacy laws) the term "journalism" had not been judicially considered in Australia. For the purposes of continuation of the exemption from the Privacy Act enjoyed by media organisations in the conduct of journalism, the ALRC recommended the act be amended to define ‘journalism’ to mean the collection, preparation for dissemination or dissemination, relevantly, of the following material for the purpose of making it available to the public:
(a) material having the character of news, current affairs or a documentary;

(b) material consisting of commentary or opinion on, or analysis of, news, current affairs or a documentary.

The Commonwealth approach to shield law protection seems to make a lot more sense.

The criticism from the states that the protection could extend to anyone who publishes anything (including all bloggers) overlooks the standard imposed, to report facts that are fair, true and accurate, and (see correction above) that "informant" is defined the same way in all three pieces of legislation, to mean (emphasis added) "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." I doubt if too many unworthy bottom of the garden variety bloggers who the states/Liberal party seem to be concerned about are going to be found to be engaged in journalism under Commonwealth law. As to Crikey in NSW law, despite the attorney's comments, the law seems to be on its side.

The real pity is uniformity is out the door yet again in our wonderful federation. That is also the case regarding the privilege itself in the light of qualifications contained in the WA bill.

Shield law and unauthorised disclosures
Sections 20G-M of the WA bill relate to journalist privilege. The provisions do not directly follow those made in New South Wales. The quotes below are from the Explanatory Memorandum.

"Sections 20G-20M.. ensure the free flow of information and news by providing a further protection for journalists. By enabling journalists to promise to keep secret the identity of a source, it is anticipated that persons will more readily disclose information on matters of public interest."

Section 20J makes it clear that the presumption that a journalist is not compellable
to give identifying evidence is not absolute and sets out the test: "the presumption does not apply if satisfied that the public interest in the disclosure of the informant's identity outweighs, first, any likely adverse effect on the informant or any other person; and, secondly, the public interest in the communication of facts and opinion to the public by the news media and the public interest in the ability of the news media to access
sources of fact."

Section 20K addresses the effect of misconduct on the presumption that a journalist is not compellable to give evidence identifying their source. The overall purpose is to guide the exercise of discretion.Importantly:
"As the list of factors makes clear, both the conduct of the informant and the journalist is capable of constituting misconduct under section 20K. The purpose of this restriction is to ensure that journalists and informants seeking to rely on the protection provisions have acted consistently with the public interest in the free flow of information and news."
Misconduct in relation to an informant or journalist includes commission of an offence; conduct providing reasonable grounds for the termination of the informant or journalist’s employment; and "conduct providing reasonable grounds for disciplining the informant or journalist in relation to unsatisfactory professional conduct or professional misconduct, or the breach of a professional standard, in relation to the informant or journalist’s profession, whether or not he or she is a member of the body that prescribed the standard."

Section 20K (3) outlines six principles which, if satisfied, generally require a direction to answer and identify a source to be given. Subsection (3) makes it clear that certain types of misconduct are more likely to warrant a direction that identifying evidence be given.

One is where the misconduct involved the commission of an offence under the Criminal Code section 81 or a breach of a public sector standard, code of conduct or code of ethics, as those terms are defined in the Public Sector Management Act 1994 section 3(1); and the offence or breach concerned the disclosure of information that was public interest information as defined in the Public Interest Disclosure Act 2003 section 3(1); and  the information could have been, but was not, disclosed in accordance with that act.

Section 81 of the Criminal Code states that unauthorised disclosure occurs where
(a) the disclosure by a person who is a public servant or government contractor of official information in circumstances where the person is under a duty not to make the disclosure; or (b) the disclosure by a person who has been a public servant or government contractor of official information in circumstances where, were the person still a public servant or government contractor, the person would be under a duty not to make the disclosure.
(2) A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for 3 years. Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

(The WA Court of Appeal confirmed the broad scope of this provision in a recent decision.
It included a finding that the section imposed a duty not to make a disclosure to unauthorised persons of any information relating to the business of a government department or the contents of any official papers including internal reports or documents of that department [at 180]. This 19th century provision like its Commonwealth counterpart and similar provisions in Queensland, Tasmania, the Australian Capital Territory and the Northern Territory law is inconsistent with open government legislation and crying out for attention.
See ALRC Report 112 and its recommendation that in Commonwealth law unauthorised disclosure that causes real harm to an identified public interest should be subject to a general offence provision leaving other unauthorised disclosures to disciplinary proceedings where warranted. WA and the other jurisdictions should be looking at this as well.)

Section 20K (3) in the WA bill narrows the effect of s 81 for the purposes of the exception to to journalist privilege to "public interest information" as defined in the PID act. However this includes just about everything of significance a journalist might be interested in: improper conduct; an act or omission that constitutes an offence under a written law; a substantial unauthorised or irregular use of, or substantial mismanagement of public resources; an act done or omission that involves a substantial and specific risk of injury to public health, prejudice to public safety; or harm to the environment.( Comment: the disclosure of most of this type of information would not harm the public interest. Au contraire.)

The third condition means if the confidential source could have but didn't previously disclose to the chief executive in the usual case or to the police, auditor general and others in specified circumstances, that's enough to lose the privilege.
Public Interest Disclosure
Finally-if you are still with me- the person could make a disclosure to a journalist and be protected from victimisation and discrimination in employment and from liablity under s 81 or any other act under proposed changes to the Public Interest Disclosure Act (Explanatory Memorandum Part 3) of substantially the same information that was the subject of a disclosure of public interest information already made under the act. Where the proper authority to which the disclosure was made, or the person to whom a matter raised by the disclosure was referred under section 9(1)(b):
(a) has refused to investigate, or has discontinued the investigation of, a matter raised by the disclosure; or
(b) has not completed an investigation of a matter raised by the disclosure within the period ending 6 months after the disclosure was made; or
(c) has completed an investigation of a matter raised by the disclosure but has not recommended the taking of action in respect of the matter; or
(d) has not complied with section 10(1) or (4), if applicable, in relation to the disclosure.

A journalist wouldn't enjoy shield law protection in these circumstances if a source tried to insist on confidentiality as far as I can see.(Update: scale this back to a maybe-perhaps such a disclosure arguably would be in accordance with the PID act and therefore attract the shield law protection.)

Standards of journalism-privacy
Awaited with interest-the reaction to this other proposed exception to journalist privilege by media organisations and journalists who are strongly resisting in other contexts any suggestion of outside interference with the conduct of their craft.
"Section 20K(3)(d) provides that a direction (to identify a source) should generally be given if the misconduct involved a breach of privacy that was not warranted in the circumstances. To determine what is warranted in the circumstances, a person acting judicially is required have regard to the value attached to the privacy of personal information; the privacy of commercial information; or Cabinet confidentiality, or other principles which allow the free exchange of ideas on a confidential basis during the development of public policy matters. Subsection (3)(d) ensures that the protection for journalists' sources does not afford journalists or informants a means of violating the public's privacy. While there is not 'right to privacy' as a matter of law, the public, business and government rely on the ability to undertake certain acts or transactions in private. Subsection (3)(d) makes it clear that unnecessary and unwarranted invasions of privacy by journalists or other persons who provide information to journalists will generally not attract protection under the Bill."


  1. Peter, have you got your 1 December correction right?

    I'm researching this very issue of the definition of a journalist for a piece for ABC The Drum today, and according to AustLII the Commonwealth Evidence Act 1995 s126G says journalist is defined as "a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium."

  2. I did it again! I grabbed Senator Ludlam's foreshadowed amendment rather than the words as used in the act

    Thanks-and sorry for the confusion.

  3. Hah! All too easy, Peter!

    My ABC piece is now online, and you're quoted:
    "When is a journalist not a journalist"

  4. Thanks- a good piece made even better by no mention of my initial confusion over the definitions.