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Evidence Amendment (Journalists' Privilege) Bill 2007

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2004-2005-2006-2007

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

EVIDENCE AMENDMENT (JOURNALISTS’ PRIVILEGE) BILL 2007

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by the authority of the Attorney-General,

the Honourable Philip Ruddock MP)



EVIDENCE AMENDMENT (JOURNALISTS’ PRIVILEGE) BILL 2007

 

GENERAL OUTLINE

 

The Bill amends the Evidence Act 1995 by introducing a privilege, at the trial and pre-trial stage of civil or criminal proceedings, for communications made in confidence to journalists.

 

The new provisions set out a guided discretion for the court to exclude evidence which would disclose confidential communications made to a journalist acting in a professional capacity under an obligation not to disclose that information.  The provisions require a court to exclude the evidence where the nature and extent of the likely harm to a protected confider outweighs the desirability of the evidence being given. 

 

This privilege is an important reform to evidence law.  At present, if a journalist is required to disclose his or her sources in court and refuses, on the basis of ethical obligations, the conflict can only be dealt with by use of the court’s contempt power.  This amendment to the Evidence Act will assist freedom of the press and the public’s right or need to be informed by giving the court an alternative option to reconcile the conflicting interests.  For a fair and effective justice system, a court must be able to weigh the public interest in disclosure of information against the public interest in the protection of confidential communications made to journalists.  The court must balance a number of factors and give the greatest weight to any risk of prejudice to national security.

 

The introduction of a professional confidential relationship privilege has arisen from recommendations made by the Australian Law Reform Commission, New South Wales Law Reform Commission and the Victorian Law Reform Commission in their 18 month inquiry into the operation of the uniform Evidence Acts.  The report, entitled Uniform Evidence Law , was tabled on 8 February 2006.  The Law Reform Commissions recommended that Division 1A of Part 3.10 of the Evidence Act 1995  (NSW) be incorporated into the Evidence Act to provide a general professional confidential relationship privilege.  The Australian Government at this stage proposes to apply this privilege to journalists and their sources.

 

This Bill also makes consequential amendments to ensure that the professional confidential relationship privilege under the Evidence Act or the Evidence Act (NSW) , or a similar law of another State or Territory, does not apply in James Hardie proceedings under the James Hardie (Investigations and Proceedings) Act 2004 and in examinations and subsequent proceedings under the Proceeds of Crimes Act 2002 .  The public policy interest in effective enforcement of corporate regulation through James Hardie proceedings, and the confiscation of unlawfully acquired property through the Proceeds of Crime Act , justified the abrogation of legal professional privilege in these circumstances.  The same public policy interests justify the disapplication of the professional confidential relationship privilege.

 

The Bill also amends the Family Law Act 1975 to ensure that the best interests of the child are paramount when a court is determining whether confidential communications should be disclosed in family law proceedings concerning children.  In family law proceedings, a child’s interests in the proceedings are sometimes independently represented by a lawyer appointed under Division 10 of Part VII of that Act.  This Bill provides that an independent children’s lawyer, a parent of the child or another person who has responsibility for making decisions about the major, long term issues in relation to the child, can make the claim for privilege on behalf of the child.  This is based on a recommendation of the Uniform Evidence Law report.

 

FINANCIAL IMPACT

 

The Bill will have no significant financial impact.  There may be additional costs to the parties in some legal proceedings as claims for privilege are made and examined by the courts.



NOTES ON CLAUSES

 

Clause 1 - Short title

 

This clause provides for the Bill to be cited as the Evidence Amendment (Journalists’ Privilege) Act 2007.

 

Clause 2 - Commencement

 

2.       This clause contains a table which sets out when each of the provisions of the Bill commences. 

 

3.       Item 1 of the table provides that Sections 1 to 3 of the Bill (which provide for the short title of the Act, the application of the schedule, and this commencement provision) and anything else in the Bill not covered by the table commence on the day which the Bill receives the Royal Assent.

 

4.       Item 2 of the table provides that Schedule 1 commences on the 28 th day after the day on which the Bill receives the Royal Assent.

 

Clause 3 - Schedule(s)

 

5.       This clause provides that each Act that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule.

 

Schedule 1 - Amendments

 

Evidence Act 1995

 

Item 1 - After Division 1 of Part 3.10

6.       Item 1 inserts a new Division 1A into Part 3.10 the Evidence Act to introduce a new professional confidential relationship privilege that is limited to communications made in confidence to journalists.  The intention of the new privilege is to provide greater protection to journalists and their sources.  This will ensure greater freedom of press and enhance the public’s right to know.  The new Division is modelled on Division 1A of Part 3.10 of the Evidence Act (NSW).  The principal element of this privilege is the protection of protected confidences and identity information provided to a journalist acting in a professional capacity.  The privilege applies only where the journalist was under an express or implied obligation of confidence.  This recognises the ethical obligations of journalists not to disclose their sources.  The privilege contained in new Division 1A is discretionary and qualified and is intended to allow the court to balance the likely harm to the journalist’s source if the evidence is adduced with the desirability of the evidence being available to the court.

7.        Several terms are defined in subsection 126A(1): 

·          ‘harm’ is defined broadly in subsection 126A(1) to include actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear).  This definition indicates the types of harm to the confider that the court should consider in deciding whether or not the evidence should be adduced.

·          ‘protected confidence’ describes the types of communication that are protected.  The definition limits the privilege to communications made in confidence to a journalist.  The privilege may apply to any part of the communication which was confidential, which may be limited, for example, to the name of the person providing the information, relevant background briefing, or how the information was obtained by the protected confider.  Journalists are referred to as ‘the confidant’ in the rest of the Division, maintaining uniformity with the NSW provision on which new Division 1A is based.

·          ‘protected confider’ means a person who has made a protected confidence (this person would commonly be referred to as the journalist’s source). 

·          ‘protected identity information’ is information about or enabling a person to ascertain the identity of a journalist’s source.

8.       ‘Journalist’ is intended to have its everyday meaning.  This is consistent with the approach taken in section 66 of the Privacy Act 1988 .  It is intended to cover a variety of circumstances in which journalists collect news for dissemination across a range of mediums.  The key factor is that the journalist must be acting in their professional capacity.  The provision is not intended to extend to a person who is a journalist but is not acting in that capacity at the time.  Examples of communications which are not intended to be covered include where a person assists another person to write his or her autobiography or writes a computer web log (blog) in a personal capacity.

9.       Section 126A(2) makes it clear that a communication can be confidential even if it is made in the presence of a third party.  This is the case only when the presence of that third party is necessary to facilitate the communication.

10.     Under subsection 126B(1) a court can direct that evidence not be adduced.  The court may make such a direction if it finds that adducing the evidence would disclose information communicated to the journalist in confidence, including information which would disclose, or enable a person to ascertain, the identity of the confider.  Under subsection 126B(2), the court may direct that evidence not be adduced on application by the person who made the confidential communication, or the person to whom it was made (whether or not a party), or of its own initiative. 

11.     Subsection 126B(3) provides the circumstances when the court must direct that the evidence not be adduced.  The court must give such a direction if it is satisfied that the nature and extent of the likely harm that would or might be caused to the confider outweighs the desirability of the evidence being given. 

12.     Subsection 126B(4) lists the matters that the court is required to take into account when deciding whether a protected confidence should be disclosed.  The matters include the importance of the evidence, its probative value, the nature and gravity of the relevant offence, cause of action or defence, the means available to the court to limit the likely harm arising from disclosure, and whether the substance of the confidence has already been disclosed.  (These matters also operate under Division 1A of Part 3.10 of the Evidence Act (NSW)).

13.     In deciding whether to make a direction not to disclose a confidential communication, the court must consider the matters in subsection 126B(4) but is not limited to those matters.   Because the privilege is specific to journalists and their sources, in deciding whether information should be disclosed the court will consider these matters against the intention of the new privilege.  The intention is to protect the freedom of the press and enhance the public’s right to be informed.

14.     In addition to these matters, subsection 126B(4) provides that the court must take into account, and give the greatest weight to, any risk of prejudice to national security.  National security is defined in the National Security Information (Civil and Criminal Proceedings) Act 2004 to mean Australia’s defence, security, international relations or law enforcement interests. 

15.     Consideration of the other matters in subsection 126B(4), such as the nature and gravity of the proceeding, is likely to result in disclosure of information in circumstances where national security is relevant.  However, the additional requirement to give greatest weight to national security considerations provides a clear direction and puts the matter beyond doubt.  An example of where national security may be a relevant matter for disclosure of a confidential communication made to a journalist is a proceeding for obtaining a control order under Division 104 of the Criminal Code Act 1995

16.     The privilege is lost if the person who made the confidential communication consents to the evidence being given (section 126C), or where the communication was made (or the 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 (section 126D).  These provisions are similar to the corresponding circumstances when client legal privilege is lost (subsection 122(1) and section 125 of the Evidence Act).

17.     The court also has the power under section 126E to make appropriate orders to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence or protected identity information.  For example, the court may order that the evidence be heard in camera or may make a suppression order in relation to the publication of the evidence.

18.     Subsection 126F(1) is a transitional provision and provides that the privilege does not apply to proceedings if the hearing began before commencement of the new Division 1A.  However, subsection 126F(2) provides that the privilege applies to confidences made before or after the commencement of Division 1A.  Subsection 126F(4) provides that the professional confidential relationship privilege is not affected by, and does not affect, claims for any other privilege under Part 3.10 of the Evidence Act.

Item 2 - Before section 132

19.     Item 2 inserts a new section 131A to extend the application of the professional confidential relationship privilege to pre-trial stages of civil and criminal proceedings.  The section allows a person to object to giving information or providing a document in response to a disclosure requirement.  The court must determine the objection by applying Division 1A of Part 3.10 as if the objection to the disclosure requirement were an objection to the giving or adducing of evidence.  The privilege does not apply to investigatory and other non-curial processes such as search warrants or notices to produce issued by investigatory agencies.

20.     ‘Disclosure requirement’ is defined in new subsection 131A(2) to mean a court process or court order that requires the disclosure of information or a document.  The definition includes a non-exhaustive list of court processes and court orders which come within the meaning of ‘disclosure requirement’. 

 

Family Law Act 1975

 

Item 3 - At the end of section 69ZX

21.     Item 3 inserts a new subsection 69ZX(4) into the Family Law Act which provides that in proceedings under that Act where the best interest of the child is the paramount concern, the court is not to give a direction under the new Division 1A of Part 3.10 of the Evidence Act preventing disclosure of a confidential communication if it considers that it is in the best interests of that child that the evidence be given.  Regulations will be introduced to cover the professional confidential relationship privilege in the Evidence Act (NSW) and other jurisdictions where a similar privilege exists or might be adopted in the future.  This amendment to the Family Law Act arises out of Recommendation 15-2 in the Uniform Evidence Law report.

 

Item 4 - After section 100B

 

22.     Item 4 inserts new section 100C into the Family Law Act.  New section 100C will allow certain persons to claim the privilege under Division 1A of Part 3.10 of the Evidence Act on behalf of the child, where the child is the protected confider.  Subsection 100C(2) provides that an independent children’s lawyer or a person, including a parent of the child, who has responsibility for making decisions about major long-term issues in relation to the child may claim the privilege by applying for a direction that evidence not be adduced or for an order to give evidence in camera and to suppress its publication.  This amendment arises out of Recommendation 15-2 of the Uniform Evidence Law report.

 

James Hardie (Investigations and Proceedings) Act 2004

 

Item 5 - Subsection 3(1)

 

23.     Item 5 inserts a definition of ‘professional confidential relationship privilege’ into subsection 3(1) of the James Hardie (Investigations and Proceedings) Act.  The definition covers the privilege in Division 1A of Part 3.10 the Evidence Act as well as the privilege in Division 1A of Part 3.10 of the Evidence Act (NSW) or a similar law of a State or Territory.  The definition will have the effect that new section 4A and amended section 6 of the James Hardie (Investigations and Proceedings) Act also apply to a professional confidential relationship privilege under a State or Territory law that exists now or might be enacted in the future. 

Item 6 - After Section 4

24.     Item 6 inserts new section 4A which provides that the professional confidential relationship privilege does not apply in relation to James Hardie material for the purposes of, or in connection with, a James Hardie proceeding.  It ensures James Hardie material (as defined in the James Hardie (Investigations and Proceedings) Act ) will be available and admissible in any James Hardie proceedings despite the fact that the professional confidential relationship privilege might otherwise apply to prevent confidential communications being disclosed.  This section is intended to disapply the professional confidential relationship privilege in the same circumstances as legal professional privilege is abrogated in James Hardie proceedings under the James Hardie (Investigations and Proceedings) Act.  This is justified by the public policy interest in effective enforcement of corporate regulation in James Hardie proceedings. 

25.     New subsection 4A(2) provides that the section does not apply to a claim for professional confidential relationship privilege made by an authorised officer.  ‘Authorised officer’ is defined in section 3 of the James Hardie (Investigations and Proceedings) Act and includes the Australian Securities and Investments Commission (ASIC), a delegate of ASIC and the Director of Public Prosecutions (DPP).  This provision will protect information communicated in confidence by authorised officers despite the operation of subsection 4A(1).  It is intended to benefit ASIC and the DPP.  The privilege is not intended to cover a person within ASIC who is acting outside their delegation who seeks to rely on the privilege in a James Hardie proceeding.  In such a circumstance they would not be acting in their capacity as an authorised officer.  This provision is consistent with the provision in subsection 4(5) with respect to legal professional privilege. 

Item 7 - At the end of section 6

26.     Item 7 makes it clear that the Bill disapplies the professional confidential relationship privilege for James Hardie material only for the purposes of, or in connection with, a James Hardie proceeding but not otherwise.  It would not prevent a person from making an application, or a court directing, that James Hardie material not be adduced due to professional confidential relationship privilege in some unrelated proceeding.

 

Proceeds of Crime Act 2002

 

Item 8 - After paragraph 197(2)(b)

 

27.     Item 8 adds paragraph 197(2)(ba) to the Proceeds of Crime Act The paragraph ensures that refusal or failure to answer a question or produce a document at an examination under Part 3.1 of the Proceeds of Crime Act is an offence under section 196 whether or not the professional confidential relationship privilege would apply to the answer or document.  This approach is consistent with paragraphs 197(2)(a) and (b) which provide that a privilege against self-incrimination and legal professional privilege cannot be relied upon as a reason not to answer a question or produce a document at an examination under Part 3.1.  Material obtained in an examination may then be admissible in certain later proceedings as identified in section 198 of the Proceeds of Crime Act. 

 

28.     Disapplication of the privilege is justified because in matters dealing with confiscation of unlawfully acquired property, the public interest in ensuring that all relevant information is available outweighs the public interest in the protection of a journalist’s source.

 

Item 9 - Section 338

 

29.     Item 9 inserts a definition of ‘professional confidential relationship privilege’ into section 338 of the Proceeds of Crime Act.  The definition covers the privilege in Division 1A of Part 3.10 the Evidence Act as well as the privilege in Division 1A of Part 3.10 of the Evidence Act (NSW) or a similar law of a State or Territory.  The definition will have the effect that new paragraph 197(2)(ba) also applies to a professional confidential relationship privilege under a State or Territory law that exists now or might be enacted in the future.