A privileged profession? Shield laws and the Evidence Act.

The Evidence Amendment (Journalists’ Privilege) Bill 2009 (Cth), inserts a new objects clause at the beginning of the Commonwealth Evidence Act. The public interest recognised in the Bill is limited to the media having access to sources of facts for the purpose of communicating facts and opinion to the public. The communications protected are limited to those made in confidence to a journalist acting in a professional capacity. The objects clause may be understood to extend additional privileges to the mainstream mass media, which others do not enjoy. The Bill only covers a circumstance in which a journalist is under an obligation not to disclose the content of a communication, as opposed to the identity of a source. The proposal in the Bill to limit the objects clause by reference to the purpose for which the facts in question were acquired is unnecessarily narrow, and the definition of ‘national security’ for the purpose of the Bill remains unacceptably broad, taking in any risk of prejudice to Australia’s political or economic relations with foreign governments. The Explanatory Memorandum suggests that the Bill will repeal a provision for automatic loss of privilege. This is not the work that section 126D of the Evidence Act does, and its proposed abrogation and partial replacement will work little, if any, change. Where misconduct is a fact in issue in determining whether the privilege applies, the Bill perpetuates the Evidence Act position, namely ‘reasonable grounds’ to make a finding. PIAC believes that the appropriate level of proof is on the normal civil or criminal standard. There are respectable arguments that the Bill does not go far enough, in failing to set an onus in favour of protecting sources, as is the case in New Zealand and the USA.