Chapter 3
Key Issues
3.1
This chapter discusses the key issues raised in submissions and later in
evidence, including:
-
limitations of the object clause;
-
extension of the professional confidential relationship privilege
(privilege) to journalists;
-
offences, frauds and misconduct;
-
protection provided in the Evidence Act 1995 (Act); and
-
application of the privilege.
Limitations of the object clause
3.2
The Evidence Amendment (Journalists' Privilege) Bill 2009 (Bill)
proposes to insert an object clause into the Act to modify the way in which
courts exercise their discretion to exclude evidence of a protected confidence
or protected identity information in civil or criminal proceedings.
3.3
The NSW Attorney-General, the Hon. John Hatzistergos MLC (NSW Attorney-General)
questioned whether the object clause can achieve its stated purpose. Following
a NSW Court of Appeal decision, an object clause neither controls clear
statutory language nor commands a particular outcome.[1]
3.4
The NSW Attorney‑General therefore suggested that the Bill
specifically require the courts to take into account a public interest factor:
While I support the inclusion of a public interest factor in
maintaining the confidentiality of the information and the confidentiality of
the protected identity information (which would also cover the public interest
in the media communicating facts and opinion to the public and for that purpose
having access to sources of fact), I think that the consideration of the public
interest factors should be mandatory for the court to consider whenever it is
deciding whether to grant a privilege.[2]
3.5
From a different perspective, the WA Director of Public Prosecutions (WA
DPP) questioned whether the object clause supports the proper administration of
justice, an essential component of the rule of law. The WA DPP argued that the
object clause juxtaposes the justice system with the role of the media, and
could be interpreted as diminishing the pre-eminence of the administration of
justice. In his view, there is no need for the object clause, and if it were to
remain within the Bill, then it should reflect the position that the proper
administration of justice is paramount.[3]
3.6
Not all submissions agreed with these two views of the object clause
with other submissions supporting its inclusion within the Act.
Journalist-source confidentiality
3.7
The Media Entertainment & Arts Alliance (MEAA) submitted that the
object clause contrasts with an important professional ethical obligation:
3. Aim to attribute information to its source. Where a source
seeks anonymity, do not agree without first considering the source’s motives
and any alternative attributable source. Where confidences are accepted,
respect them in all circumstances.
Guidance Clause: Only substantial advancement of the public
interest or risk of substantial harm to people allows any standard to be
overridden.[4]
3.8
It argued that the Bill should place greater emphasis on protection for
journalist-source confidentiality. For example, by incorporating an
'overarching statement of the spirit of the law that favours journalist-source
confidentiality protection', or by requiring courts to prioritise the
protection of confidential sources.[5]
3.9
Some submissions disagreed with the suggestion that the MEAA Code of
Ethics be codified by the Bill. Several noted that journalists, unlike most
other professions, are self-regulated,[6]
and the WA DPP quoted the Law Reform Commission of Western Australia (LRC WA),
which previously examined the issue:
...it may be argued that journalists should be legally entitled
to refuse to disclose the identity of their informants on the ground that
refusal is required by the ethics of their profession. However, a group's
imposition upon itself of a "code of ethics" is not of itself a
sufficient justification for the enactment of the substance of that code in
legislation.[7]
Difficulties with terminology
3.10
While supportive of the object clause, some submissions questioned its
terminology. The Public Interest Advocacy Centre (PIAC), for example, submitted
that the terminology – 'facts' and 'media' – unnecessarily restricts
recognition of the public interest.[8]
3.11
The NSW Attorney-General, the Tasmanian Attorney-General, the Hon. Lara
Giddings MP (Tasmanian Attorney-General) and the WA Attorney‑General, the
Hon. C. Christian Porter MLA (WA Attorney-General) especially argued that the
non-definition of the term 'journalist' is problematic:
...the term has a flexible and contentious meaning and the
practice of journalism is rapidly changing. It is not possible to define journalists
in the way that lawyers or doctors are usually identified, such as by reference
to qualifications or compulsory professional vetting or affiliation. The label
of "journalist" is really one that depends more on self
identification than any other factor.[9]
3.12
As indicated in preceding paragraphs, submissions exhibited fundamental
concern with journalist-source protection however, as noted by the WA DPP,[10]
a primary purpose of the Bill is to extend the protection granted by the Act to
journalists.
Extension of the privilege to journalists
3.13
In general, submissions and evidence supported this amendment, but non‑industry
stakeholders questioned its limited application to journalist-source
relationships only.
3.14
The WA Attorney-General submitted that the law ought to recognise the
public interest in professional relationships generally, as is the position in
NSW where its professional confidential relationship privilege does not
discriminate between different vocations or professions:
126A Definitions
(1) In this Division:
...
"protected confidence" means a communication made
by a person in confidence to another person (in this Division called the
"confidant"):
(a) in the course of a relationship in which the confidant
was acting in a professional capacity, and
(b) when the confidant was under an express or implied
obligation not to disclose its contents, whether or not the obligation arises
under law or can be inferred from the nature of the relationship between the
person and the confidant.
Note: This definition differs from the corresponding
definition in section 126A (1) of the Commonwealth Act, which is limited to
communications to journalists.[11]
3.15
In addition to arguments based on uniformity and equity, some
submissions questioned the reasons for distinguishing journalist-source
relationships from other professional confidential relationships.
3.16 The ACT Attorney-General, the Hon. Simon Corbell MLA (ACT
Attorney-General), for example, submitted that there is no reason why the
journalist-source relationship should be granted a higher level of protection:
...the Commonwealth has not formulated a strong argument to
explain why the interests, which are protected by journalist shield laws, are
afforded a higher level of protection than the interests protected by other
privileges, given the differences which exist between journalists and other
professional group. Medical and legal practitioners operate within heavily
regulated profession and are therefore subject to stringent quality control.
Journalists, on the other hand, are not required to comply with professional
registration or standards in order to practice their profession.[12]
3.17 The Tasmanian Attorney-General agreed with her colleagues' overall
assessment, adding that, in the case of offences, fraud or misconduct, the Bill
potentially grants journalists greater privilege than that which might be
claimed under legal professional privilege:
...a public servant whistleblower may impart the same
information to a journalist (for publication) and a lawyer (for the purpose of
seeking legal advice), thereby committing the offence of disclosing official
secrets. Under the proposed Commonwealth Bill, the legal professional privilege
is automatically lost (section 125) but the journalists [sic] privilege, which
is within the discretion of the court, may remain.[13]
3.18 Submissions and evidence highlighted provisions within the Bill most
likely to interact with and impact on journalists' claims for privilege: section
126D and new subparagraph 126B(4)(i).
Offences, frauds and misconduct
Loss of privilege
3.19
The Bill will repeal section 126D, which provides for the loss of
privilege when a communication is made or the contents of a document are
prepared in furtherance of the commission of a fraud, an offence or commission
of an act that renders a person liable to a civil penalty.
3.20
Some submissions welcomed this amendment, with the Australian Associated
Press (AAP) describing the section as unduly harsh and unjust, a 'practical
barrier' given that most confidential disclosures are made in contravention of
the law.[14]
3.21
PIAC disagreed with this assessment of section 126D, emphasising the primarily
permissive nature of the judicial discretion granted in section 126B:
Exclusion of evidence of protected confidences
-
The court may direct
that evidence not be adduced in a proceeding if the court finds that adducing
it would disclose:
-
a protected confidence; or
-
the contents of a document recording a protected
confidence; or
-
protected identity information.
-
The court may give
such a direction:
-
on its own initiative; or
-
on the application of the protected confider or confidant
concerned (whether or not either is a party).
-
The court must give
such a direction if it is satisfied that:
-
it is likely
that harm would or might be caused (whether directly or indirectly) to a
protected confider if the evidence is adduced; and
-
the nature and extent
of the harm outweighs the desirability of the evidence being given.[15]
3.22
PIAC argued that section 126D serves an important function: it
clarifies the application of judicial discretion where evidence of an offence,
fraud or misconduct is concerned. In its view, the repeal and
partial replacement of this provision (with new subparagraph 126B(4)(i)) will
accomplish little.[16]
3.23
The WA and NSW Attorneys-General also opposed the repeal of section
126D, albeit on grounds of legal principle. They argued that the amendment is
not consistent with statutory and common laws of privilege, which automatically
abrogate privilege in identical circumstances. In addition, the WA
Attorney-General submitted that the range of offences and misconduct
prohibiting, or discouraging, confidential communications to journalists
include serious crimes, which should not be shielded:
The abolition of automatic loss of privilege is effectively
an invitation to engage in, or an endorsement of the existing practice of,
criminal acts, fraud and misconduct...the law of evidence should not be developed
to provide special protection or endorsement of criminal conduct, thereby
embodying a double standard.[17]
Judicial consideration
3.24
Throughout the inquiry, submitters and witnesses expressed most concern
with subsection 126B(4). As amended, this provision provides a non-exclusive
list of matters which the court must take into account in determining whether
to direct that evidence not be adduced in a proceeding (a guided discretion).[18]
3.25
Some submissions welcomed the proposed amendment as a
strengthening of journalists' protection.[19]
Other submissions queried whether the 'check list of factors' would have
unintended and adverse practical implications,[20]
particularly in relation to proposed new paragraph 126B(4)(i), which provides
for the court to consider:
(i) 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;[21]
3.26
The WA Attorney-General considered this amendment neither an adequate
nor a satisfactory substitute for the automatic loss of privilege (section
126D). The WA Attorney-General commented that common sense and the legal
framework applying over other privileges 'give reason to hope that the factor
would weigh against the privilege.' Nonetheless, he expressed misgivings with
the guided discretion:
...the law is best expressed definitively, rather than in the
legal mechanism of a judicial balancing exercise between a list of factors...the loss of privilege should not be left in doubt. To do so would
only encourage those who are contemplating unlawful disclosures to test the
limits of the law. The inclusion of criminal activity, fraud or misconduct as
only one of a multitude of factors instils this doubt and uncertainty and
undermines the clarity and deterrence that the criminal law should reflect.[22]
3.27
Dr Joseph Fernandez, a senior lecturer in journalism at Curtin University
insisted that proponents of journalists' shield laws are seeking neither to
test the law nor a grant of legal immunity rather, protection for sources that
provide information of legitimate public interest value to journalists
performing their professional duty, a well-recognised 'immunity' in democratic
societies.[23]
3.28
Also in contrast to the WA Attorney-General, the Australian Associated
Press (AAP) supported the amendment with the proviso that it should be a
relevant consideration only where the protected confidence or protected
identity information is a fact in issue. The AAP submitted that the Bill is
protective in nature rather than punitive, and there appears to be no
compelling reason why an unrelated breach of the law by the confider in
providing information to a journalist should be a relevant consideration.[24]
3.29
Despite some focus on matters for judicial consideration, submitters and
witnesses indicated to the committee that the most troubling legislative
provisions were those concerning the judicial consideration itself.
The protection provided in the Act
3.30
Australia's Right to Know (ARK), a coalition of media organisations
explained that the role of the media is to report on matters of public interest
and scrutinise information on behalf of the public it serves:
In the ordinary course of their duties journalists are
expected to disclose the sources of their information. It makes the source, the
journalist and the media outlet accountable for their reports, makes the
process of reporting more transparent and is likely to help the consumer of the
information to evaluate the integrity and credibility of the information.
However, in some instances, information of legitimate public
interest will only be disclosed to journalists if the identity of the source is
kept confidential. In these instances, an informant may require a guarantee of
anonymity for a variety of reasons but usually to avert any negative
consequences such as a threat to their safety, their employment, their standing
in the community and so on.
Keeping a source confidential is fundamental to the ability
of journalists to maintain trust with their sources and to encourage other
sources to trust journalists and bring forward information of public concern.[25]
3.31
Industry stakeholders submitted that, in the past, journalist-source
confidentiality has not received sufficient legal recognition and support, and
submitters and witnesses alike cited recent examples of journalists fined,
convicted or jailed for contempt of court for not disclosing confidential
sources.[26]
3.32
While welcoming the additional protections granted in the Bill, these
and other submitters continued to doubt that journalist-source confidentiality
is sufficiently protected in Australian law with several submitters and
witnesses referring to shield laws in other jurisdictions, for example, the
United Kingdom and New Zealand.
United Kingdom
3.33
In the United Kingdom, section 10 of the Contempt of Court Act 1981
(UK) provides journalists with a qualified protection:
No court may require a person to disclose, nor is any person
guilty of contempt of court for refusing to disclose, the source of information
contained in a publication for which he is responsible, unless it be
established to the satisfaction of the court that disclosure is necessary in the
interests of justice or national security or for the prevention of disorder or
crime.[27]
3.34
This provision is premised on non-disclosure, and there is no
requirement for the information for which protection is sought to have been
obtained in confidence. The statutory protection is available unless the party
seeking the disclosure can satisfy the court that disclosure is necessary.
New Zealand
3.35
In New Zealand, subsection 68(1) of the Evidence Act 2006 (NZ)
also provides qualified protection to journalists who do not disclose
confidential sources:
Protection of journalists' sources
(1) If 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.
...
(5) In this section,—
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 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[28]
3.36
Subsection 68(2) details the qualification: a judicial discretion to
override the statutory protection if satisfied by either party to the
proceeding that, having regard to the issues in the proceeding:
(2) ...the public interest
in the disclosure of evidence 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.
...
(5) In this section,—
...
public interest in the disclosure
of evidence includes, in a criminal proceeding, the defendant’s right to
present an effective defence.[29]
3.37
Like the United Kingdom legislation, the New Zealand provisions are
premised on non-disclosure, and a party seeking disclosure must convince the
court that disclosure is necessary if the protection is to be withheld.
However, the New Zealand legislation also requires information to have been
obtained by a journalist in confidence, and the court to conduct a balancing
exercise in reaching any determination to withhold privilege.
Commonwealth law
3.38
The Act is not premised on a presumption of non-disclosure, meaning that
the privilege applies only if the court makes the necessary direction on its
own initiative, or the protected confider or journalist applies to the court
for that direction.
3.39
While ARK expressed doubts as to whether the former would occur,[30]
the point argued in stakeholders' submissions and evidence was that the Act
should fundamentally be premised on a rebuttable presumption rather than a
guided discretion to significantly enhance protection for journalists.[31]
A sampling of those views follows.
3.40
The Australian Press Council unequivocally stated that the Bill does not
go far enough, and the government ought to go further by introducing legislation
that:
...creates a presumption that a journalist is not required to
disclose the identity of a confidential source unless there is a compelling
reason warranting such disclosure...Such a presumption should only be rebutted
where the party seeking to have the evidence adduced can present compellable
reasons to do so, such as where the failure to disclose the identify of the
source would present a serious threat to the health or safety of the public or
to security.[32]
3.41
The AAP concurred, submitting that by not introducing legislation
equivalent to that of the United Kingdom, New Zealand and the United States,
'the Bill simply maintains the status quo of inadequate protection rather than
strengthening it':
...unlike equivalent legislation in New Zealand, the United
Kingdom and the United States, the Evidence Act will not confer any true right
to resist disclosure and will not offer any additional protection than that
already offered at common law under the Newspaper Rule. Therefore, it will not
achieve the Government’s stated legislative intention of strengthening the
protection afforded to journalists.[33]
3.42
Dr Fernandez suggested that the Bill incorporate a clear statement of
intent to guide judicial discretion and better achieve its stated objectives:
This submission advocates the placing of the shield law in a
context that recognises transparency, accountability and openness in government
and the freedom of speech of citizens as important ideals. It is submitted that
clear statements of intent accompanied by substantive provisions in a shield
law regime will more adequately meet the stated goal of achieving an
"effective" shield law.[34]
3.43
The Attorney-General acknowledged calls for the Commonwealth to enact a
shield law regime similar to that of the United Kingdom and/or New Zealand.
However, the Attorney-General rejected such calls, explaining that the purpose
of the Bill is to enable an appropriate balance to be struck between the public
interest in free press and the public interest in the administration of justice.
Accordingly, the Bill endorses a guided discretion rather than the benefit of
an absolute privilege:
[The Bill] leaves the balancing of competing interests and
particular facts to the common sense of the court considering the matter...judicial
discretion in these matters is not something to be afraid of. Indeed, no other
profession—not even the legal profession—has the benefit of an absolute privilege
to protect confidential information.[35]
3.44
The ACT Attorney-General agreed that where there are competing interests,
the most appropriate response is to allow for a judicial balancing exercise to
determine which competing interest prevails over the other in the
circumstances. In his submission, the ACT Attorney-General contended that to do
otherwise would contravene the fundamental human right to a fair trial:
The right to a fair trial...is based on the premise that all
relevant evidence is brought before the courts in a trial. An absolute
privilege would not allow for a proper balancing exercise to take place and ultimately
would impact on the fundamental right to a fair trial.[36]
Whistleblower legislation
3.45
Submissions and evidence noted that the government is in the process of
formulating whistleblower legislation. Some submissions made no further comment
in that regard. Other submissions expressed their views on the perceived
shortcomings of existing whistleblower legislation and suggested means by which
that legislation could be improved.[37]
3.46
The committee did not inquire into either existing or proposed
whistleblower legislation, which is beyond the scope of this inquiry. However,
the committee noted witnesses' comments regarding the legislative interaction
between journalists' protection and whistleblowers' protection.
3.47
The Tasmanian Attorney-General, for example, questioned whether the
privilege was the best way to protect journalist-source confidentiality,
submitting that the privilege does nothing to protect the source from
prosecution and that that is the proper purpose of whistleblower legislation.[38]
Application of the proposed privilege
3.48
The Bill proposes to extend the privilege to all proceedings in any
Australian court for an offence against a law of the Commonwealth. Submissions
and evidence noted that this amendment promotes consistency and certainty in
national shield laws.[39]
3.49
However, submissions also noted that the amendments create two
contradictory evidentiary regimes in each state/territory, increasing the risk
of confusion or error in the application of the privilege:
For example, if there is a joint indictment of Commonwealth
and State offences being heard in a state court, that court would have to apply
both the Commonwealth journalist privilege and the NSW professional
confidential relationship privilege.[40]
3.50
NSW is currently the only state to have enacted legislation protecting
journalist-source confidentiality (section 126A of the Evidence Act 1995 (NSW)).[41]
3.51
In addition, several submissions referred to SCAG's contemporaneous
consideration of journalists' privilege provisions in the model Uniform Evidence
Bill.[42]
While the ACT and Tasmanian Attorneys-General made only a brief reference to
that process, the WA and NSW Attorneys-General provided specific comments on
the timing of the Bill's introduction.
3.52
The WA Attorney-General submitted that the Bill pre-empted SCAG's
orderly consideration of reform options, effectively rejecting the SCAG process
and jeopardising the formulation of uniform and harmonised laws. The WA
Attorney‑General suggested that the Bill be deferred – or withdrawn
altogether – pending completion of the SCAG process.[43]
The NSW Attorney-General similarly emphasised the importance of legislative
uniformity.[44]
3.53
Upon conclusion of SCAG's April 2009 meeting, the Attorney General
publicly announced that the states/territories have agreed to endorse a key
component of the Bill: new public interest factors that would give judges
discretion to protect a broad range of professional confidences. The
Attorney-General considered this agreement to be a significant development in
the harmonisation of evidence laws.[45]
Committee View
3.54
The Evidence Amendment (Journalists' Privilege) Bill 2009 amends the Evidence
Act 1995 to implement reforms to the privilege available to protect
confidential communications between journalists and their sources.
3.55
Submitters and witnesses queried these reforms. However, the committee
was not persuaded by the evidence received during this inquiry.
3.56
The committee accepts that the purpose of the object clause is to guide
the court in the exercise of its judicial discretion. There is no evidence to
suggest that exercise of the discretion cannot or will not properly serve the
administration of justice. The committee does not consider that the object
clause should be enhanced, either to include further statements of intent or to
prioritise either of the public interests it seeks to advance. However, the
committee agrees with the NSW Attorney‑General that mandatory judicial
consideration of public interest factors would provide journalists' with
greater protection than that provided by the guidance of an object clause.
3.57
The committee commends extension of the statutory protection to
journalists, as well as their sources. In so doing, the committee notes that
the proposed amendments concern sections within the Act directed to
establishing a privilege in favour of the journalist-source relationship only.
While there might be arguments in favour of creating privilege for other
professional confidential relationships, perhaps based on public interest
criteria, this is not the purpose of the Bill.
3.58
The committee agrees that communications made in contravention of the
law cannot be condoned. However, the committee acknowledges that, in some
circumstances, the public interest is better served by the making of
confidential disclosures. The committee considers that the Bill strikes an
appropriate balance between the two interests by allowing the court to consider
all relevant factors prior to determining whether privilege should be upheld in
a particular case. Having regard to the integrity of Australian courts, the
committee is confident that the courts will act without prejudice in making
those determinations.
3.59
The committee acknowledges the considerable sentiment and support for
Commonwealth law to embody a rebuttable presumption in favour of journalist‑source
confidentiality. The Act does not establish a shield law regime of this nature.
Instead, it provides protection for journalists in the form of a guided
judicial discretion, which the Bill does not seek to change.
3.60
The committee observes that there are alternate shield law regimes in
the United Kingdom, New Zealand and even the United States, none of which is
identical, and on the basis of the evidence before it, the committee cannot say
that any one of these models is superior to the others. While much has been
said regarding the onus in shield law regimes, the committee is not persuaded
that this produces fundamentally different outcomes sufficient to warrant
revising the qualified protection already provided by the Act.
3.61
Finally, the committee welcomes the consistency which the Bill brings to
national shield laws, but notes that this is limited to Commonwealth offences.
As only one state has enacted journalists' shield laws, the majority of
states/territories continue to have one set of evidentiary laws in relation to
journalist-source confidentiality. The committee encourages the Commonwealth,
states and territories to continue to work co‑operatively toward
harmonisation of Australian shield laws.
Recommendation 1
3.62
The committee recommends that subclause 126B(4) of the Bill be amended
to require the courts to take into account the public interest in the
disclosure of a protected confidence and/or protected identity information.
Recommendation 2
3.63
Subject to the preceding recommendation, the committee recommends that
the Senate pass the Bill.
Senator Trish Crossin
Chair
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