Evidence (Journalists) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:35): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading it.

Leave granted.

The Evidence (Journalists) Amendment Bill 2018 amends the Evidence Act 1929 to introduce a default rule that journalists cannot be compelled to answer a question or produce any document that may disclose the identity of a confidential informant.

Communications with journalists do not enjoy any special privilege under the common law in Australia. There is High Court authority to this effect.

However, there are strong public interest arguments for confidential communications with journalists to be protected. This encourages the free flow of public interest information into the public domain. By enabling journalists to keep confidential the identity of an informant, it is anticipated that people will more readily come forward with information on matters of public interest, including to hold governments and corporations to account.

The majority of other Australian jurisdictions, including the Commonwealth, New South Wales, Victoria, Western Australia and the Australian Capital Territory have legislated to introduce a similar rule, commonly referred to interchangeably as 'journalists shield laws' or 'journalists privilege'.

In the lead-up to the March State election, the Liberal Party promised to introduce journalist shield laws if elected and this Bill seeks to fulfil that promise.

The Bill defines 'journalist' as a person 'engaged in the profession or occupation of journalism in connection with the publication of information in a 'news medium'' (in turn defined as a medium for the dissemination to the public or a section of the public of news and observations on news'). This is consistent with the definition in the (NSW) Evidence Act 1995 and also the approach in the (Vic) Evidence Act 2008. A journalist for the purposes of the provisions need not be employed by a media outlet; the definition applies also to contracted and freelance journalists, provided journalism is their profession or occupation.

The risk in defining 'journalist' more widely, for example, the equivalent Commonwealth definition refers to a person 'engaged and active in the publication of news' is that less scrupulous people, potentially with fictitious sources, may receive protection. This risk needs to be balanced against a concern to adopt definitions sufficiently wide to allow for rapidly evolving online platforms for journalism and the shift away from traditional forms of news towards new modes of public communication, for example blogs and tweets.

To allow sufficient flexibility to respond to rapid evolution in modes of public communication whilst avoiding the risks associated with a wide definition, the Bill allows for regulations to specify classes of person who are deemed to be included in, or excluded from, the definition of 'journalist'.

The proposed laws will apply to proceedings in a court, which in turn is defined in the principal Act to include a 'tribunal, authority or person invested by law with judicial or quasi-judicial powers, or with authority to make any inquiry or to receive evidence': s.4(1).

The Bill:

provides that no civil or criminal liability is incurred by a journalist for failing or refusing to answer any question, or to produce any document or other material, that may directly or indirectly disclose the identity of their informant, being an informant who reasonably expected that the informant's identity would be kept confidential, whether because of an express undertaking given by the journalist or otherwise (that is, the expectation of confidentiality may be implied from the circumstances);

provides that the default rule against disclosure is subject to an overriding public interest test whereby the court in the proceedings in question, may order disclosure if satisfied that, having regard to the circumstances of the case, the public interest in disclosing the identity of the informant:

outweighs any likely adverse effect of the disclosure on the informant or any other person;

outweighs the public interest relating to the communication of information by the news media generally; and

outweighs the need of the news media to be able to access information held by potential informants.

By providing for an overriding public interest test by application of which a court may order that the informant's identity nevertheless be disclosed, the Bill seeks to strike an appropriate balance between what may be competing public interests: on the one hand in having the informant's identify disclosed in the particular circumstances, verses on the other hand any adverse impact on the informant and the public interest in facilitating the free flow of information.

I commend the Bill to Members.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Evidence Act 1929

4—Insertion of Part 8A

This clause inserts a new Part as follows:

Part 8A—Journalists

72—Interpretation

The proposed section defines terms to be used in the Part.

72A—Application of Part

The proposed section provides that the Part is to apply to court proceedings commenced before or after the commencement of the Part.

72B—No liability incurred for failure to disclose identity of informant in court proceedings

The proposed section provides a protection for journalists and prescribed persons (defined as being employers of journalists or those engaging journalists by contract) from criminal or civil liability if they refuse to answer questions or produce documents or material that may directly or indirectly disclose the identity of a person (the informant) who has given information to the journalist or prescribed person. The person seeking the protection must satisfy the court that the person is a journalist or prescribed person, that they have been given information by an informant with the expectation that the information may be published in a news medium and that the informant's identity would be kept confidential.

The court may order that the protection does not apply to journalists if satisfied that the public interest in disclosing the informant's identity would outweigh—

any adverse effect on the informant or other person; and

the public interest relating to the communication of

information by the news media generally; and

the need of the news media to be able to access information held by potential informants.

Debate adjourned on motion of Hon. I.K. Hunter.