The privileged position of journalists

At the end of March, the Federal Parliament finally passed amendments to the Commonwealth Evidence Act to create what have often been called journalist shield laws. This may, however, be a misleading description if the privilege, as it arguably exists to protect sources and promote the flow of information rather than to protect journalists.

As readers would be well aware, the Commonwealth amendments will only apply in proceedings under the Commonwealth evidence laws. So far, I haven't heard whether New South Wales or Tasmania plan to follow suit. However, last Friday, The Australian ran a story that Victoria will not adopt the same provisions, and will instead adopt slightly different shield laws.


The difference relates to the breadth of the laws. The original version of the Commonwealth Bill, as proposed by Andrew Wilkie, defined a journalist as:

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 (link).

During the passage of the Bill through Parliament, the Greens successfully moved an amendment to the definition so that it reads:

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 (link).

Thus, the Commonwealth legislation uses a test of 'engaged and active in the publication of news', rather than the originally proposed 'in the normal course of that person's work' test. The purpose of this was to expand the class of people who may able to claim the privilege and recognise the work of citizen journalists rather than confine the privilege to professional journalists.

According to The Australian's article, the Victorian Attorney-General has said:

"There is a real worry that the Greens' amendment threatens to unreasonably restrict the ability to put evidence before the court.
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."
...
Mr Clark said the original schemes favoured by Labor and the Coalition in Canberra had struck a fair balance between protecting the interests of the public in the free flow of information while providing courts with a discretion to require disclosure in the public interest.
"The federal scheme, minus the Greens' amendments, still strikes a fair balance," he said

Now, it is not particularly surprising that a blogger thinks that broadening shield laws to, in appropriate circumstances, protect bloggers is a good idea. And I recognise that this is a matter on which minds may legitimately differ. Citizen journalism is, in its current form, still an emerging area. It will likely be difficult for courts to determine when a person is 'active and engaged in the publication of news' in borderline cases. And I agree with the Attorney-General that "simply running a blog does not make you a journalist". That, however, isn't the test and I believe that working on the news in a private or amateur capacity, without the support of a news organisation, shouldn't prevent you from being a journalist. In my view, the solution to this problem is to simply omit a definition of journalist and let the courts apply the ordinary meaning of the word 'journalist' to the facts of the case.

What I really take issue with, is with the argument that the wider definition of journalist undermines the balance between protection a journalist's sources and providing courts with a discretion to require disclosure in the public interest. The Commonwealth law, as modified by the Greens amendments, doesn't change that. The operative provision is unchanged. It still reads:

(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 to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.
(2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, 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 (link).

So, the court still has a discretion. The court is still required to balance the desirability of disclosure with the adverse effects of disclosure on the informant and the public interest in the flow of information. All the amendment does is broaden an informant's choice of who to make the disclosure to. It avoids entrenching a privileged (pun partially intended) position for some journalists at a time when the face of journalism itself seems to be changing and, with greater disclosure of information through the internet, anyone with a bit of research, writing skills and a website, can be active in the distribution and analysis of news. If the Victorian Attorney-General wants to enshrine that, that is a legitimate position to take. But he shouldn't disguise this policy preference by referring the need to strike a "fair balance" between the flow of information and the ability of the court to require disclosure, as though the Greens amendment undermines that balance.

Update: Elsewhere - Peter Timmins has already written about the same matter.