Definition of journalism

Oops.

In two recent posts, now corrected, I mistakenly said the Commonwealth Evidence Amendment (Journalist Privilege) Act 2011 included a definition of "journalism." It doesn't. I was alerted to the possible error by Kate Stowell an Australian completing LL.M studies at the University of Edinburgh who has just submitted her thesis on 'Journalist source protection in Europe and Australia: a study in human rights and evidence law'. Thanks Kate-more of her below.

The error of my ways

In December 2010  Senator Scott Ludlam in a senate report on the bill said The Greens would seek to amend definitions to include:

"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."

 

When the issue came on for Senate debate Senator Ludlam referred to earlier negotiations to win Government support for Green amendments. While not mentioned the definition of journalism appears to have been a casualty and was not put. Other Green amendments passed.

The bill as passed by the Senate went through the House unchanged.

My memory was playing tricks in November 2011 when I went looking for definitions in commenting on shield law developments- I copied Senator Ludlam's comment from the committee report, thinking wrongly that the definition along with other Green amendments had made it into the law as passed. Update 8 December-I did the same thing with the definition of journalist initially posting the Ludlam foreshadowed amendments in both cases not the words used in the act as passed. For the purposes of clarity (at last) the definitions in the Commonwealth act are:

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.
Thanks to Stilgherrian for correcting me on this one.)

Kate Stowell in Edinburgh spots it

Kate is a University of Sydney law graduate who has worked as a radio journalist for ABC and SBS, and has recently picked up some contract work with the BBC. Earlier this week she presented her findings at the Reuters Institute for Journalism at Oxford, where she tells me, there was great interest from the audience in the Australian source protection 'dilemma'....

Kate hopes to use her thesis to branch into the world of written/online publishing...If anyone out there is looking for a likely candidate, who knows plenty about shield law related issues and has a great eye for detail, I can put you in touch.

Stilgherrian is, well Stilgherrian

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...

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!

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. 

Victoria up for a "professionals" only shield law

Attorney General Clark

Chris Merritt in The Australian reported on Friday that Victoria intends to legislate this year to create a rebuttable presumption that the identity of those who provide information to journalists will be protected by state law. Attorney General Robert Clark indicated the protection would apply in circumstances similar to those set out in the recently passed Federal law, but only for "professional" journalists. No detail provided, but in the light of what the Attorney sees as a neat distinction between professionals and amateurs, a reprise of the debate in Canberra about the scope of the privilege seems certain:

"We believe the shield should apply to journalists who receive information in the normal course of their work."... "The Greens' changes (incorporated into Federal legislation) are cast in extremely broad terms," Mr Clark said. "Simply running a blog does not make you a journalist. If you are a professional carrying on online journalism in the course of your work, electronic media journalists qualify (for protection) just as the print media does. "But if you are an amateur running a blog, in principle and practice, it is not appropriate that the privilege extend to such a person."

In Canberra Andrew Wilkie's initial attempt at defining the circumstances in which it could  apply was limited to a journalist employed and operating in the course of work. This would have excluded a free lancer not currently employed working on a story for later submission to a publisher but who could not point to an employee-employer relationship at the time the source provided the information. Or a student journalist. Or any person not currently employed who publishes and disseminates news and opinion regularly and consistently on the internet, in other words clearly a citizen journalist.

The Greens amendments incorporated into the Bill in Canberra with support from the Government and Wilkie were an attempt to address such problems. In my view the definitions don't extend the privilege to anyone who publishes anything, anywhere as claimed by Opposition Senator Brandis and his colleagues, and now reflected in the Victorian Attorney's comments:

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.

Uniformity should be the aim although "normal course of work" without references to any professional/ amateur dichotomy could be broad enough to extend privilege to those paid or unpaid engaged and active in the publication of news.

Let's hope for some sort of debate about this before we end up with the traditional mess of differing Federal and state laws reminiscent of those different rail gauges of another century.

Federal shield law done and dusted

The House of Representatives accepted the Senate amendments to the Evidence Amendment (Journalists‘ Privilege) Bill 2010 in a 72-70 vote on Monday, with the Opposition voting against. (House Hansard 21 March p 23) Front bencher Michael Keenan stuck to the "rue the day" line adopted in the Senate by Shadow Attorney General Senator Brandis:

If these amendments from the Australian Greens were to be adopted, the whole purpose of this bill would be massively expanded beyond its original conception, which is to protect journalists‘ sources in defined circumstances. It would not merely protect journalists, and it would not merely protect news media. It would be carte blanche for anyone who wanted to publish anything anywhere that might be considered news.

For good measure Senator Brandis reiterated all this in The Australian today.

While it remains to be seen how the term journalist, defined as "a person who is engaged and active in the publication of news", is interpreted, "anyone, anything, anywhere" seems over the top to me. And to Andrew Wilkie and Attorney General McClelland who spoke in favour, the latter finding merit in the whole process despite previous government resistance to reform along the lines now adopted:

In conclusion, this bill is an excellent example of how all sides of politics can work together in this parliament towards a common goal. I again thank the member for Denison and also Senator Xenophon for introducing this bill and for their willingness to work with the government on this important issue.

Welcome news but limited to matters in Federal courts and Commonwealth laws. State laws don't provide the same protection so still messy times ahead, including in circumstances such as this in NSW.

But then this extraordinary call within two days of the passage of the bill by Robin Speed of the Rule of Law Institute of Australia, for the legislation to be amended immediately to provide that disclosure should only be ordered where national security is at stake. Some points that Mr Speed seems to miss:

• the debate about this has been on for years. There will be little interest or enthusiasm in reopening it now
•  the bill provides for a rebuttable presumption against disclosure of the identity of a journalist's source-non-disclosure is the starting point
• it applies in matters concerning Commonwealth laws or heard in federal courts
• it is what media interests sought
• the onus in seeking to force disclosure rests on the party who seeks disclosure to establish that other public interests justify disclosure
• the protection of national security should be grounds for a consideration of an override but  other public interests for example justice to an individual should not be excluded
• the problem at the centre of his concerns is a matter for NSW state law and nothing to do with this bill.
• all of us should be worried about the opaque operations of the NSW Crime Commission but this is nothing to do with the legislation passed in Canberra this we  

(Update: this discussion between Chris Merritt of the Australian and Veronica Scott of Minter Ellison.)

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:

Whistleblowing and leaks

Someone at Fairfax seems to have had a better thought about the headline to a report on the investigation of Commonwealth government leaks, after the SMH paper edition conflated whistleblowers and leaks thus: "War on whistleblowers: Labor uses a bigger stick to keep its secrets safe."( Well no, it is online as well.) The story on-line, taken from The Age and modified in other respects is headed "Rudd witch-hunts cost police, money."

An interesting report that points out that leaks referred for investigation "overwhelmingly concerned cases of political embarrassment rather than security breaches." An unnamed police source (in the SMH) and unnamed former senior Federal police source (online) said " both Labor and Liberal and everyone in between gets the shits when their policies are undermined or their big announcements appear on the front page of the newspapers 24 hours before they announce it.''

The media love leaks, and love even more details of futile attempts to find leakers.

But the SMH headline suggests all leakers are whistleblowers, people by definition who seek to have wrongdoing addressed and need and deserve protection against retribution. They aren't. While many leaks cause no real harm no organisation, government or otherwise, can operate effectively where any employee can do what they wish with information that comes their way. Sensible laws and policies are needed. We don't have this right at present.

Senate consideration of journalists' shield law slips to 2011

I've laboured over a long piece on this but ****!!! its disappeared into the ethernet. The short version:

The Wilkie bill didn't come on for consideration in the final week of sittings after the Senate Legal and Constitutional Affairs Committee reported and recommended the bill. Liberal senators on the committee in a dissenting report favour the Brandis bill. Senator Ludlam in additional comments foreshadows amendments to the definition of journalist and journalism that seem sensible to me.

The committee hearing transcript is worth a look for the discussion of issues about the definition of a journalist and questions about whether Julian Assange would qualify (mixed opinions).  Police powers unaffected by the proposed law also get a mention. These allow for access to telephone records of a journalist or anyone else where necessary in an investigation of a criminal offence (submission and evidence of Ken Parish, and evidence of officers of AGs department).

The precedent value of a 2002 NSW Supreme Court decision (NRMA v John Fairfax [2002] NSWSC 563) referred to in evidence by Matthew Minogue of AGs on the test for determining who is a journalist is questionable. The issue in that case was whether a confidant, a journalist was a member of a "profession" and acting in a "professional capacity," the words used in the NSW Evidence Act.This required the court to consider the attributes of carrying on a profession against standards tightly drawn by the law [145-157].These words aren't used in the Wilkie bill. The issue as the bill stands will be whether a person in the normal course of work involved in dissemination of news is given information after providing an assurance of confidentiality. Compliance with the standards expected of a person as a professional won't arise. What constitutes the normal course of work may. Senator Ludlam sensibily suggests avoiding this, the paid /unpaid issue, whether a person is employed (as mentioned in the Wilkie EM but not the bill) and the old/new media divide by amending the definitions as follows

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

There was more- in my head if anyone wants to talk about it. Or read at your leisure if you can track down the reams that may be floating around somewhere out there. ****!!!

Shield laws and whistleblower protection will both be back on the agenda in 2011.

Shield law for quick Senate committee inquiry

The Senate yesterday referred the shield law bills to the Legal and Constitutional Affairs Committee for inquiry and report by 23 November. The hope is still to get this through before the parliament rises. Senator Brandis hopes it will facilitate passage of both bills in a harmonised form. On the definition issue, The Greens Senator Ludlam said "journalists who work on a voluntary basis—the citizen journalists, the bloggers, the independent media collectives and so on—also need the protections afforded by this bill." The privilege "should not rest on whether or not your work is paid... The test that we are looking for is whether or not it is in the public interest for the source to be protected.... My reading of the bill is that it would extend the protection in this way, but we are seeking to lay that ambiguity to rest." Senator Xenophon said "the reference in the definition to that person’s work does not seek to define a journalist as someone who is paid; rather it is to distinguish those who are making one passing comment, from someone who is engaged and active in the publication of news. I think there is a clear distinction between the two. (The Wilkie bill Explanatory Memorandum was the source of the problem as pointed out here.)

Apart from this, other issues raised in that bills digest weren't mentioned- but the Committee has a couple of days to reflect.

Journalists run rings around the professions to protect confidential relationships

It will be interesting to see if debate in the Senate on a shield law for journalists picks up on the detailed analysis of the Wilkie and Brandis bills by Kirsty Magarey of the Parliamentary Library in this Bills Digest published last week. (PDF 338KB). The paper provides the background to these initiatives and notes:

"The Wilkie Bill continues successive governments' failures to attend to the needs of  professionals other than journalists. There would seem to be no justification given as to why doctors/ counsellors/social workers et cetera are not having their need for a protected confidential relationship recognised. There have now been four Bills attending to journalists' privilege but only one, the Brandis Bill, has given the general professionals' need for confidentiality any attention."

The Wilkie bill has passed the House of Representatives. The Brandis bill has not been debated (but there was a second reading speech on 29 September.)

The paper points out that the bills are identical in their effect with respect to a rebuttable presumption of journalists' privilege, but notes neither "offers a particularly rigorous definition of journalism" and would extend privilege to "all employed journalists working in all forms of news media, a definition that would encompass the efforts both of investigative journalists and gossip columnists."  While the bills provide for a person to seek an order that the identity of an informant be revealed in certain circumstances the paper says the heavy onus involved "will apply whether the piece is a less edifying article or whether it is an investigative piece making the weighty contributions to our democratic system which journalists can make."

It also notes

"The repeal of provisions recognising the significance of illegality/misconduct leaves the Courts  with less guidance in exercising their reserve discretion to prevent the presumptive exercise of the privilege."

The Brandis bill broadens privilege (at a lower level than that afforded to journalists) to   (undefined) professionals who are in a position to accept and keep their clients confidences, in line with recommendations in law reform commission reports in 1985 and 2006, and Federal-state agreement on uniformity in evidence acts. The paper says that taking the step to address this issue " would also provide evidence that despite the fact Parliamentarians and journalists necessarily have a close relationship, legislators interests are broader than simply addressing the need to protect journalists."

Update: later developments here

House passes shield law

The House of Representatives passed the Wilkie shield law bill to protect journalists' sources ( the Evidence Amendment (Journalists Privilege Bill) last week, the first private members bill to pass, with Government and Opposition members and The Greens Adam Bandt all speaking  in favour. The debate is here-nothing further was said as the bill went through later stages. (My earlier comments on the bill are here and here.)

Bandt and Michael Keenan, Opposition Shadow Minister for Justice both foreshadowed amendments to be moved in in the Senate. Bandt said The Greens would seek to make "explicit that the bill covers bloggers, citizen journalists and documentary filmmakers, and that the privileges provided by the bill cover anyone engaged in the process of journalism, no matter who they are or in what medium they publish," an issue raised here previously. Keenan somewhat confusingly refers to amendments to bring the law into line with NSW law, but that was the stumbling block that sidelined the Government's bill last year. Labor backbencher Graham Perrett seemed to suggest that privilege should only be available to ‘a person who ascribes to the journalist code of ethics as published and codified by Media, Entertainment and Arts Alliance.’

Attorney General McClelland acknowledged the contribution to the pasage of the bill by  Chris Merritt of The Australian and John Hartigan and the Right to Know campaign.

Shield law, whistleblowers and secrecy provisions all part of the framework

In introducing the Evidence Amendment (Journalists' Privilege) Bill, Andrew Wilkie recounted the experiences of some high profile whistleblowers and the journalists who publicised their concerns, and acknowledged that the logical counterpart to the bill will be whistleblower legislation, adding that he looked forward to "working with members in this place to progress such unprecedented federal legislation during the term of this parliament."

Whistleblower legislation has been unfinished business for many months (years). The Government announced earlier this year a response to the Dreyfus committee report that was welcomed at the time as close to world's best practice. Until Queensland went one better. Mr Wilkie clearly has further thoughts on the subject.

Wilkie didn't mention it in his speech, but the third leg in all this is the need to clean up Australia's secrecy laws, including the draconian s 70 of the Crimes Act that makes the disclosure of information without authorisation a crime subject to up to two years imprisonment, and for which there is no defence. The Government is yet to respond to the Australian Law Reform Commission's recommendations.

Wilkie acknowledged that the protection of the identity of a source must give way in some circumstances to other interests. The

" bill does recognise that there may be circumstances where the public interest in the disclosure of the identity of the source is so strong that it should be provided to the court. In such cases it will be up to those parties who want to force a journalist to reveal their source to prove that the public interest is best served in disclosing the source and that the public interest benefit of a disclosure genuinely outweighs the likely harm to the source.This bill will replace the existing provisions in division 1A of the Evidence Act. It will include a new provision that provides clear authority for the presumption that a journalist is not required to give evidence about the identity of the source of their information. This presumption can be rebutted in circumstances where the public interest outweighs any likely adverse effect for the person who provided the information to the journalist, as well as the public interest in the communication of information to the public by the media."

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.