Bills Digest no. 130 2008–09
Evidence Amendment (Journalists' Privilege) Bill
2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced:19 March
2009
House:House of Representatives
Portfolio:Attorney-General
Commencement:The day after Royal Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
To amend the Evidence Act
1995 (the Evidence Act) to provide certain protections for
communications made to journalists.
The Bill was referred to the Senate Legal and Constitutional
Affairs Committee on 19 March 2009 with a report originally due 7
May 2009, but now extended until 12 May (the Senate inquiry).
Details of the inquiry and its Report are at:
http://www.aph.gov.au/Senate/committee/legcon_ctte/journalists/index.htm
The issue of protecting journalists sources or shield laws has
been an active question in Australia for some time. As a
Parliamentary Library Paper from 1992 shows (Anne Twomey, Law and
Policy of Protecting Journalists Sources [1]) the suggestions for reform have been
contemplated over a lengthy period and have been the subject of
numerous inquiries and reports. They involve a complex debate about
issues that go to the heart of many contemporary issues facing the
body politic. Those issues include the tensions involved in
balancing the interests of justice versus the public interest in a
free press; issues about professional privilege more generally;
issues about the need for uniformity in evidence law across all
jurisdictions; issues involving the interaction between shield
laws, open and transparent government and whistleblower protection;
and more recently issues regarding the tension between free speech
and national security.
For further background the reader is referred to the Bills
Digest for the Evidence Amendment (Journalists Privilege) Bill
2007[2] at:
http://www.aph.gov.au/library/pubs/bd/2006-07/07bd172.pdf
A level of protection of journalists sources was first
introduced into the Commonwealth Evidence Act in 2007 through the
Evidence Amendment (Journalists Privilege) Act 2007 (the
2007 Act). This legislation was a Government response to the case
of Herald Sun journalists, Gerard McManus and Michael Harvey. The
then Attorney-General made it clear the legislation, and its timing
were a response to the issues raised in that case. [3]
Amongst other things, the Evidence Act governs the rules
regarding the taking of evidence in judicial proceedings before a
Federal or ACT court. With the passing of the 2007 Act, it contains
limited professional confidential relationship privilege
provisions.[4] The
provisions provide a privilege at the trial and pre-trial stage of
civil and criminal proceedings for communications made in
confidence to journalists in certain circumstances. More
specifically, the Act provides that the court may direct
(on its own initiative or upon application) that relevant evidence
not be adduced in proceedings. However, the court must
give such a direction if a protected confider would be harmed by
the adduction of the evidence, and that harm outweighs the
desirability of taking that evidence.[5] The Act provides a long list of factors
that are to be considered by the court in deciding whether it is
necessary to require disclosure.[6]
There are similar protections in New South Wales,[7] although the protection
for protected confidences in New South Wales differs slightly from
the Commonwealth Evidence Act protection in that the latter
specifically identifies the journalists source as a target
of protections whereas the NSW provisions applies more widely i.e.
they are flexible enough to cover a range of relationships such as
doctor/patient, psychologist/client, social worker/client as well
as journalists/source relationships.
Both the Commonwealth and New South Wales provisions were
modelled on the recommendations of the 2006 report of the three Law
Reform Commissions on Uniform Evidence Law[8] that concluded that a professional
confidential relationship privilege should be qualified and allow
the court to balance the likely harm to the confider if the
evidence is adduced and the desirability of the evidence being
given. Although, as noted above, the Commonwealth law adopted in
2007 did depart from this recommendation of providing a
general confidential relationship privilege .
There are no shield laws in other state jurisdictions, although
the issue has been the subject of debate at meetings of the
Standing Committee of Attorneys-General (SCAG). In 2007 the SCAG
meeting ended without any agreement on the appropriate course of
action regarding the Commonwealth s proposed protections for
journalists and their sources.[9] More recently it has been reported, that the
Commonwealth had received endorsement by the States for their
scheme, despite on-going issues developing, including criticisms by
the West Australian Attorney-General and criticisms from a number
of lobby groups.[10]
The Bill would amend the professional confidential relationship
privilege provisions in Part 3.10, Division 1A of the Evidence
Act 1995. This Division provides that the court may give a
direction on its own or upon application if a protected confider
would be harmed by the adduction of the evidence, and that harm
outweighs the desirability of taking that evidence.[11] There is a long list
of factors that are to be considered by the court in deciding
whether it is necessary to require disclosure. [12]
The Bill proposes the following amendments:
- It inserts an objects clause stating that the object of
Division 1A is to achieve a balance between the public interest in
the administration of justice, and the public interest in the media
communicating facts and opinion to the public and, for that
purpose, having access to sources of facts.
- It makes several amendments to the lists of factors the court
must consider when exercising its discretion to grant privilege
namely:
- It would require the court to consider not only the potential
harm to the source but also the harm to the journalist if
the evidence is given
- It would require the court to consider whether a communication
was made contrary to law in determining whether to direct that
evidence not be given[13]
- In exercising its discretion, one factor amongst
others that the court must consider is potential prejudice to
national security. This factor is no longer to be given the
greatest weight .
- It extends the application of the journalists privilege to all
proceedings in any Australian court for an offence against a law of
the Commonwealth.
These amendments are considered in more detail in
the Main Provisions section of the Digest.
Much of the debate about this Bill suggests that overseas
jurisdictions, particularly the New Zealand model, have something
to offer Australian reform.[14]
In New Zealand the Evidence Act 2006 provides that
where a journalist has promised an informant not to disclose the
informant s identity, neither the journalist nor his or her
employer is compellable in a civil or criminal proceeding to answer
any question or produce any document that would disclose the
identity of the informant or enable that identity to be discovered.
[15]
However a Judge of the High Court may order that the identity be
revealed if satisfied that the public interest in doing this
outweighs any likely adverse effect on the source or others as well
as 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.[16]
In other words, the onus in the New Zealand legislation lies
with the party seeking disclosure to rebut the initial presumption
in favour of non-disclosure, by proving the balancing test in their
favour. This is in contrast to the Bill before the Australian
Parliament which does not adopt a presumption in favour of the
journalist. Rather this Bill offers a discretionary privilege,
meaning the privilege is available at the court s discretion after
consideration of a balancing test.[17]
Dr Joseph Fernandez, Senior Lecturer in journalism at the Curtin
University of Technology, notes that the annals of Australian case
law contain many examples involving attempts by the courts to
discover journalists confidential sources.[18] One of the most publicised cases and
the one that provided the impetus for the 2007 reforms was the case
of Harvey and McManus.
Gerard McManus and Michael Harvey refused to divulge the source
of their report that former veterans affairs minister Danna Vale
had ignored a recommendation to increase war veterans benefits by
$650 million, and had instead presented cabinet with a plan to
spend only $150 million. [19] Their lawyer, Will Houghton QC, subsequently said to
the court that stories like their article Cabinet s $500 million
rebuff revealed published on 20 February 2004 were vital to our
democracy. [20]
Contempt of court charges were subsequently laid by the Chief
Judge of the Victorian County Court. In October 2006 Federal
Government lawyers appeared in the contempt case against the
journalists to ask the court to abandon the matter.[21] This was after an
earlier attempt to intervene on the basis that the Federal
Government was planning to legislate for greater protection of
journalists sources was rejected by the Victorian County
Court.[22]
Meanwhile a senior federal public servant, Desmond Patrick
Kelly, accused of leaking the information to McManus and Harvey,
was found guilty by the Victorian County Court of leaking
confidential information to a journalist. Mr Kelly appealed to the
Victorian Supreme Court, which subsequently overturned his
conviction on the basis there was insufficient evidence to support
the conviction.[23]
In June 2007 Harvey and McManus were each fined $7000 for
contempt of court.[24]
The Australian Press Council comment was:
The Harvey and McManus case doesn t relate to a
serious crime or a threat to national security. Their only real
crime is holding the government accountable to those who elected
it, and pay for it.[25]
The Attorney-General, the Hon Robert McClelland MP in his second
reading speech to this Bill states that the Bill forms part of the
Rudd government s commitment to enhancing open and accountable
government and that it also delivers on the government s election
commitment to strengthen protection for journalists
sources.[26]
The purpose of this legislation is to enable an
appropriate balance to be struck between the public interest in
free press and the public interest, which clearly exists also, in
the administration of justice. It provides a guided discretion but
leaves the balancing of competing interests and particular facts to
the common sense of the court considering the matter.[27]
Submissions to the Senate inquiry from media groups generally
argue the Bill does not go far enough in providing protection for
journalists sources.
Australia s Right to Know[28] believes that a qualified privilege which relies
on a balancing test and the discretion of the court provides some
but not sufficient protection for journalists. Their submission to
the Senate inquiry states:
Although the 2009 Bill would improve the regime
currently available under the Evidence Act, it is difficult to
contemplate the court would actually exercise the discretion and
permit a journalist to maintain the confidentiality of a
source.
While recognising the amendments provide an
improvement to the current qualified privilege and accordingly
improve the protection currently available, Australia s Right to
Know submits that the Senate should recommend:
There should be recognition at law that there
is a legitimate public interest in allowing journalists to protect
the identity of confidential sources when disclosure by the source
is demonstrably in the public interest;
Australia should adopt the British and New
Zealand models that legally recognise the primary interest that
allows journalists to protect identity of confidential sources when
the disclosure by the source is demonstrably in the public
interest.[29]
The MEAA, the journalists union, have criticised the Bill
stating that it does not introduce significant new provisions to
protect journalists confidential sources. The MEAA recommends that
in order to maintain the Government s stated commitments with
regards to the protection of journalists sources, the Bill needs to
be strengthened by incorporating an overarching statement of the
spirit of the law that favours journalist-source confidentiality
protection.[30]
Submissions by the various State and Territory Attorneys-General
to the Senate inquiry express different concerns with the Bill,
with Western Australia being particularly critical.
Western Australia s Attorney-General has specific criticisms
relating to:
- the removal of the prohibition on claims for privilege over
communications constituting criminal acts[31]
- the failure to provide a general privilege for
communications made in the course of confidential and professional
relationships (as opposed to a specific privilege for
journalists)
- the amendments pre-empt the orderly consideration of options
for reform by state Ministers at SCAG meetings.[32] The application of both
Commonwealth and State laws in some cases therefore having a
greater risk of confusion or error.
The submission concludes that it would be preferable for
consideration of the Bill be deferred or withdrawn pending
discussions among jurisdictions through the SCAG process.[33]
The ACT Attorney-General, Simon Corbell MLA, also has concerns,
specifically about the removal of the provision that provides an
automatic loss of privilege on the grounds of misconduct. He asks
why the Commonwealth Government has not formulated a strong
argument to explain why the interests which are protected by
journalist shield laws are to be afforded a higher level of
protection than the interests protected by other privileges.
The Attorney-General s Senate inquiry submission notes that the
Bill, like its predecessor, again fails to extend coverage of a
privilege to more general relationships as recommended by the 2006
Law Reform Commissions report.
Like the Western Australian Attorney-General, Simon Corbell also
argues that introduction of this Bill, which departs from the
recommended model agreed to previously by SCAG Ministers, prior to
reconsideration of the issue at the April SCAG meeting, impedes the
delivery of uniformity in evidence law.[34]
The NSW Attorney-General, John Hatzistergos, also has several
concerns with the Bill. His submission to the Senate inquiry sees
problems with the Bill for its selective application of privilege
to journalists only and for its introduction of a discretionary
loss of privilege for misconduct. Both of these, he says, would be
inconsistent with NSW laws.
Further, the Attorney-Genral s submission argues that confusion
could arise with the new application provision at section 131B of
the Bill.[35] It
argues the effect of this provision could be that cases could arise
where a court would have to apply both the Commonwealth journalist
privilege and the NSW professional confidential relationship
privilege.
The Public Interest Advocacy Centre (PIAC), while congratulating
the Government on the inclusion of a new objects clause[36] states that it is
unfortunate that the public interest recognised in the Bill is
limited to the media therefore making them a privileged class of
confidant. Furthermore PIAC notes that the term journalist is not
defined in the Bill which creates difficulties difficulties could
be resolved by adopting the NSW model of a more general
privilege.
PIAC believes the Bill falls short of providing a suitable level
of protection for journalists and their sources and suggests that
building in an onus in favour of source protection, while leaving
the ultimate decision to the Courts, based on kinds of balancing
factors that the Bill sets out would represent an acceptable
compromise.[37]
Independent Senator Nick Xenophon is reported as being
supportive of providing more certain protection for journalists who
seek to protect their sources. He argues that shield laws and
whistleblower protection are first-order issues claiming:
If you don t protect sources and whistleblowers
then the potential for maladministration, waste of public funds and
abuse of power increases exponentially . [38]
Senator Xenophon argues that a key failing with the Bill is that
it would not introduce a rebuttable presumption in favour of
protecting journalists sources and further, that the Bill fails to
make reference to the right of people to the free flow of
information.
Senator Xenaphon is in favour of adopting a scheme more in line
with the New Zealand model.[39]
Greens Attorney-General spokesperson Senator Scott Ludlam has
indicated the Greens will be seeking amendment to the Bill:
The bill falls short of what key stakeholders
have identified as the minimum protections of confidentiality that
journalists need if they are to pursue their work. But it also
falls short of its objectives as claimed by the Attorney General.
At a bare minimum we need to make it explicit that courts should
assume protection of journalists
sources unless there is a compelling reason to the contrary.
[ ]
In other democracies there's a presumption in
favour of the journalist s right to protect their source unless
there are strong public interest or national security reasons for
overriding this basic principle. The Government's bill falls well
short of that.[40]
A question put by the Senate inquiry to some of those giving
evidence was whether the Bill in its current form would have
protected Michael Harvey and Gerard McMannus from prosecution for
not revealing their source. Some witnesses suggested that in their
opinion the Bill would not have helped these journalists.[41]
Justin Quill, who acted for Harvey and McManus[42] also doubts if the legislation
had been in place it would have helped in that case. He states:
In that case, a public servant was being
prosecuted because the government of the day believed he had been
the source of a story that embarrassed it over a decision to take
pensions from war widows.
[ ]
Harvey and McManus were called to give evidence
and if they revealed their source it would either demonstrate the
public servant was innocent (and someone else was the source) or
that he was guilty (by being the source).
Their evidence could go to the guilt or
innocence of a man. Clearly, there is a public interest in having
that evidence given. But without any legislative statement that
there is a greater public interest in allowing journalists to keep
their sources confidential, for the greater good, how could that
judge do anything other than require the pair to give their
evidence?[43]
The Press Council chairman, Ken McKinnon said the Bill was weak
and would give little comfort to people like McMannus and
Harvey.[44]
The Explanatory Memorandum states that the Bill would have no
significant impact.[45]
The Bill would amend the professional confidential relationship
privilege provisions in Part 3.10, Division 1A of the Evidence
Act 1995. This Division provides for a privilege at the trial
and pre-trial stage of civil and criminal proceedings for
communications made in confidence to journalists in certain
circumstances.
The amendments in the Bill are as follows.
Item 1 inserts an objects section into the
Division that deals with professional confidential relationship
privilege. Proposed section 126AA (item
1) states that the object of the Division is to achieve a
balance between:
- the public interest in the administration of justice, and
- the public interest in the media communicating facts and
opinion to the public and, for that purpose, having access to
sources of facts.
According to the Minister s second reading speech this would
ensure that the court keeps both of these factors firmly in mind
when exercising its discretion in the particular case it is
hearing.
The Explanatory Memorandum states that:
the public interest in the administration of
justice may encompass, where relevant, considerations of the proper
functioning of government and the use of appropriate means of
making public interest disclosures, such as available whistleblower
regimes. The public interest in the communication of facts and
opinion to the public may draw the court s attention to the general
desirability of maintaining an ongoing flow of information to the
public through various forms of media and the importance of
journalists keeping the identity of sources confidential to
achieving this end.[46]
At present, the court has discretion to direct that evidence
which would disclose a confidential communication made to a
journalist or the identity of their source be excluded in the
proceedings. Existing subsection 126B(4) provides a list of matters
the court is to take into account when deciding to give the
protection. One of the matters is the nature and extent of the harm
that could be caused to the confider (ie the journalist s source).
So where the court is satisfied that harm would or might be caused
to the source if the evidence is given, and that harm
outweighs the desirability of the evidence being given, the court
must make such a direction. The Bill at item 2
would extend this provision by requiring the court to also consider
any likely harm to the journalist (ie confidant) if the evidence
were to be given. The Explanatory Memorandum states that this may
include damage to the journalist s professional reputation and to
that journalist s ability to access sources of fact in the
future[47],
although the Bill does not spell this out.
Item 3 is a further amendment to subsection
126B(4). It clarifies that the court must take the list of
matters into account when deciding whether to give the protection.
[48]
Currently section 126D provides that
Division 1A does not prevent the adducing of evidence of a
communication made or the contents of a document prepared in the
furtherance of the commission of:
- fraud
- an offence, or
- an act that renders a person liable to a civil penalty.
This means that a journalist s source would not
receive the same protections when malfeasance is involved.
Items 8 would delete this provision. In its
place, item 5 would amend subsection 126B(4) to
add a new paragraph 126B(4)(i). This would add to
the list matters the court must take into account when deciding to
give the protection:
- whether the evidence is evidence of a communication made, or
the contents of a document prepared, in the furtherance of the
commission of a fraud or an offence or the commission of an act
that renders a person liable to a civil penalty.
This amendment would allow the court to decide whether privilege
should apply in cases of misconduct after taking into account all
of the relevant factors. In other words, it will provide that there
will be a possible application of journalists privilege to
cases where the communication between a journalist and their source
is itself an offence (such as where a public servant discloses
information to a journalist in contravention of section 70 of the
Crimes Act 1914). However, as the Explanatory Memorandum
states:
where the evidence is relevant to the commission of an offence
or other misconduct, this will be a matter that weighs
against upholding the privilege.[49]
The Explanatory Memorandum further explains:
The proposed amendments will not alter the laws
prohibiting unauthorised disclosures of government information and
the court will still be required to take into account whether the
communication of information was made in the furtherance of an
offence. Where a disclosure is made contrary to law, the person
disclosing the information may still be subject to investigation
and prosecution. The proposed amendments will make it clear that
courts should consider whether the misconduct in the particular
case, along with all the other relevant circumstances, warrants
directing a journalist to breach the confidence of their
source.[50]
The PIAC submission to the Senate inquiry discusses this
amendment at some length and argues that in fact it will do little
if anything to change the former state of affairs.[51]
The submission notes that the current provision (section 126D)
is described in the Explanatory Memorandum as:
Where a confidential communication is made in the furtherance of
the commission of an offence, the privilege provided by Division 1A
is presently unavailable.
PIAC, in a persuasive argument, suggests this is an incorrect
reading. PIAC s preferred reading is that the current provision
merely makes clear that the Court retains a discretion to admit the
matter into evidence which otherwise satisfies those conditions
where it is evidence of an offence. [52] Based on this interpretation it would
seem that there is very little difference between the existing
provision and the proposed amendment in item 5.
Item 7 makes a further
amendment dealing with journalists privilege and misconduct. It
clarifies that the where the relevant misconduct is a fact in issue
the court may find the misconduct is established if there are
reasonable grounds to make that finding.
Existing subsection 126(4) requires the court to take into
account and give the greatest weight to, any risk of
prejudice to national security (within the meaning of section 8 of
the National Security Information (Criminal and Civil
Proceedings) Act 2004). The Bill at item 6
removes this requirement for courts to give the greatest weight to
any risk of prejudice to national security. Instead, item
5 will amend subsection 126B(4) so that
national security becomes just one of the listed factors that the
court must consider when determining whether to give the
privilege.
Proposed section 131B (item 9) extends the
application of the Commonwealth journalist privilege to all
proceedings in a federal or ACT court and to all proceedings in any
other Australian court for an offence against a law of the
Commonwealth.
The Attorney-General s second reading speech provides the
following explanation and rationale:
In practice, the prosecution of an Australian
government official charged with disclosing confidential government
information is usually conducted in a state or territory court
rather than a federal court. It is in these proceedings that
journalists are often called upon to reveal their sources. This
amendment will enable the new journalists privilege to apply to all
prosecutions for Commonwealth offences. [53]
However, it has also been argued, particularly by some State
Attorneys-General, that this could cause confusion. For example in
New South Wales that jurisdiction s confidential relationship
privilege applies to all proceedings in NSW courts. The
Commonwealth journalist privilege would also apply in NSW Courts
when the matter was a Commonwealth matter dealing with a
journalist.[54]
The amendment proposed is not as comprehensive as the New
Zealand model nor as comprehensive as a range of interested parties
would like. It is, however, an incremental step in the direction of
provisions which could become comparable to New Zealand s. The
change to the significance of security considerations could be
significant, and it goes some way towards recognising the interests
journalists have, and therefore the media generally, in having
reliably secure relationships with their sources. One of the
dilemmas for legislators called to vote on this Bill will be
whether to accept what some may regard as inadequate changes which
may nevertheless still be an improvement on the status quo in terms
of protecting the journalist/source relationship.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2680.
[6]. These factors
are set out in subsection 126B(4) and include:
- how helpful and important the evidence would be to the
proceedings
- the nature and gravity of the offence, defence or cause of
action and the subject matter of the proceeding
- the availability of other evidence covering the issue
- the nature and extent of the harm that could be caused to the
confider
- the ways in which the court could protect either the confidence
itself or the identity of the confider
- whether the party wanting to bring in the evidence is a
defendant or prosecutor in a criminal case, and
- whether the evidence has already been disclosed, either by the
protected confider or someone else.
A final item in the list of matters the court must have regard
to is, according to the terms of the subsection, to be given the
greatest weight. This is the risk of prejudice to national security
, (as defined in section 8 of the National Security Information
(Criminal and Civil Proceedings) Act 2004. Section 8 of this
Act provides In this Act, national security means Australia s
defence, security, international relations or law enforcement
interests. Security, in its turn, is defined by reference to the
Australian Security Intelligence Organisation Act
1979.
[23]. AAP
Public Servant guilty of document leak, 31 January 2006 http://news.ninemsn.com.au/article.aspx?id=84590
accessed 30 May 2007; and Supreme Court appeal: R v Kelly
[2006] VSCA 221 (17 October 2006)
http://www.austlii.edu.au/au/cases/vic/VSCA/2006/221.html
Mariza O Keefe, Public servant wins appeal over leaked document,
AAP, Melbourne, 17 October 2006.
[24]. R v
Gerard Thomas McManus and Michael Harvey [20007] VCC 619.
[38]. Chris
Merritt, Xenophon s push to improve shield laws ,
Australian, 3 April 2009.
[39]. ibid.
[40]. Greens will move to strengthen shield laws for
journalists , Media release, 28 April 2009.
Mary Anne Neilsen
Kirsty Magarey
11 May 2009
Bills Digest Service
Parliamentary Library
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