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Evidence Amendment (Journalists' Privilege) Bill 2009

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2008-2009

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

EVIDENCE AMENDMENT (JOURNALISTS’ PRIVILEGE) BILL 2009

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by the authority of the Attorney-General,

 the Hon Robert McClelland MP)

 

 

 



EVIDENCE AMENDMENT (JOURNALISTS’ PRIVILEGE) BILL 2009

General Outline

1                     The Bill will amend the professional confidential relationship privilege provisions in Part 3.10, Division 1A of the Evidence Act 1995 , which provide for a privilege at the trial and pre-trial stage of civil and criminal proceedings for communications made in confidence to journalists in certain circumstances.

2                     These amendments will ensure that a court has relevant public interest factors in mind when exercising its discretion to direct that evidence of a protected confidence or protected identity information not be given in a proceeding.  They will do this by introducing a new clause that will provide that the court is to achieve a balance between the public interest in the administration of justice and the public interest in the media communicating facts and opinion to the public and, for that purpose, having access to sources of facts.  The court should keep these considerations in mind when determining whether to direct that evidence not be adduced in a particular proceeding.

3                     The public interest in the administration of justice may encompass, where relevant, considerations of the proper functioning of government and the use of appropriate means of making public interest disclosures, such as available whistleblower regimes.  The public interest in the communication of facts and opinion to the public may draw the court’s attention to the general desirability of maintaining an ongoing flow of information to the public through various forms of media and the importance of journalists keeping the identity of sources confidential to achieving this end.

4                     This clause will give recognition to the important function the media plays in enhancing the transparency and accountability of government.  Its role in informing the community on government matters of public interest is a vital component of a democratic system. 

5                     At present, the court has discretion to direct that evidence which would disclose a confidential communication made to a journalist or the identity of their source be excluded in the proceedings. Where the court is satisfied that harm would or might be caused to the source if the evidence is adduced, and that harm outweighs the desirability of the evidence being given, the court must make such a direction.

6                     The Bill will extend this provision by requiring the court to also consider any likely harm to the journalist if the evidence were to be given.   This may include damage to the journalist’s professional reputation and to that journalist’s ability to access sources of fact in the future.

7                     Where a confidential communication is made in the furtherance of the commission of an offence, the privilege is presently unavailable.  This has the potential to undermine the protection of journalists and their sources where the very act of communicating with a journalist can itself constitute an offence.  This is a unique characteristic of the relationship between a journalist and their source.  By comparison, communications made in the course of other professional confidential relationships, such as doctors or counsellors and their patients, may involve discussion of the confider’s misconduct. However, in these cases the communication itself is unlikely to constitute an offence.

8                     To address this, the Bill will repeal the provisions for automatic loss of privilege in cases of misconduct and make the issue of whether a communication between a journalist and their source was made for an improper purpose one of the several matters that a court must take into account when exercising its discretion.

9                     The proposed amendments will not alter the laws prohibiting unauthorised disclosures of government information and the court will still be required to take into account whether the communication of information was made in the furtherance of an offence.  Where a disclosure is made contrary to law, the person disclosing the information may still be subject to investigation and prosecution.  The proposed amendments will make it clear that courts should consider whether the misconduct in the particular case, along with all the other relevant circumstances, warrants directing a journalist to breach the confidence of their source.

10                 The Bill will also provide greater flexibility for the court in balancing the relevant factors to which it must have regard when exercising its discretion, by removing the existing requirement for courts to give the greatest weight to any risk of prejudice to national security. 

11                 These amendments will provide the court with greater scope to maintain confidentiality between a journalist and their source, in appropriate circumstances.  In cases where courts find that journalists’ privilege should apply, this protection enables a journalist to uphold an ethical obligation to maintain the confidentiality of a source without fear of being held in contempt of court.

12                 However, the privilege only applies at the trial and pre-trial stages of court proceedings.  It does not apply during the investigatory stages of the justice system or in other non-curial contexts.  These reforms will not preclude the prosecution of a source where the disclosure of information is contrary to law. 

13                   This important reform has potential benefits for the community in informing Australians on public interest matters generally.  In particular, where government matters are concerned, the amendments may encourage more informed political debate and more thorough scrutiny of the political process - which are necessary for an open and accountable government.

Financial Impact

14                 The Bill has no significant financial impact.  There may be an increase in claims for privilege involving some increase in the use of court resources.



Notes on clauses

Clause 1—Short title

This clause provides for the Bill to be cited as the Evidence Amendment (Journalists’ Privilege) Act 2009.

Clause 2 Commencement

2                     This clause provides that the Act commences on the day after it receives the Royal Assent.

Clause 3—Schedules

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

Schedule 1— Amendments

Evidence Act 1995

Item 1—Before section 126A

4                     Item 1 inserts an objects clause at the beginning of Part 3.10, Division 1A to ensure the court has relevant broad public interest factors in mind when exercising its discretion under this Division.  The clause states that the object of this Division is to achieve a balance between the public interest in the administration of justice and the public interest in the media communicating facts and opinion to the public and, for that purpose, having access to sources of facts. The court should bear these general factors in mind when deciding whether to make a direction that evidence disclosing a protected confidence or protected identity information not be adduced in the particular proceeding before it. 

5                     The ‘public interest in the administration of justice’ is a broad concept which may include the public interest in the efficient and informed disposal of litigation or, where relevant to the matter before the court, the public interest in the proper functioning of government.  It could also include the public interest in the proper use of available avenues other than the media for raising public interest matters, such as whistleblower regimes.

6                     The ‘public interest in the news media communicating facts and opinion to the public and, for that purpose, having access to sources of facts’ may include the desirability of maintaining the flow of public interest information through the media and the importance of keeping the identity of sources confidential to achieving this end.  It could also include considerations about likely harm to a journalist’s professional reputation and their ability to obtain information in the future if they are forced to reveal a source.

Item 2—Paragraph 126B(3)(a)

7                     Item 2 inserts a new requirement for the court to consider whether it is likely that harm would or might be caused to a journalist (the confidant) if evidence of a protected confidence or protected identity information is adduced.  The court is already required to consider under the existing provision whether it is likely that harm would or might be caused to a protected confider (the journalist’s source) if the evidence is adduced. 

8                     A ‘protected confidence’ and ‘protected identity information’ are defined in section 126A.

Item 3—Subsection 126B(4)

9                     Item 3 replaces the words ‘is to’ in subsection 126B(4) with the word ‘must’.  This amendment is intended to clarify, through the use of mandatory language, that the court is required to take into account the matters specified in subsection 126B(4) in deciding whether to provide journalists’ privilege in the proceedings, in addition to any other matters it considers relevant under the circumstances.

Item 4—Paragraph 126B(4)(e)

10                 Item 4 inserts an additional consideration into the non-exhaustive list of matters in subsection 126B(4) which the court must take into account in its exercise of discretion to direct that evidence not be given.

11                 Currently, the court is required to take into account under paragraph 126B(4)(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider (the journalist’s source).   A ‘protected confidence’ and ‘protected identity information’ are defined in section 126A.

12                 This amendment will require the court to also take into account the likelihood of harm, and the nature and extent of harm, to the confidant (the journalist).  This new provision compliments the amendment proposed under item 2 above.  The likely harm to the confidant may include harm to the journalist’s professional reputation and their ability to obtain information in the future if they are forced to reveal a source.

Item 5—After paragraph 126B(4)(h)

13                 Item 5 inserts two further considerations into the list of matters in subsection 126B(4). 

14                 The first of these amendments will require the court to consider 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.  This amendment (in conjunction with item 8) is intended to give the court flexibility to decide whether privilege should apply in cases of misconduct after taking into account all of the relevant factors.  Where the evidence is relevant to the commission of an offence or other misconduct, this will be a matter that weighs against upholding the privilege.

15                 The second amendment will require the court to consider any risk of prejudice to national security (within the meaning of section 8 of the National Security Information (Criminal and Civil Proceedings) Act 2004 ).  This amendment (in conjunction with item 6) is intended to allow the court to determine the weight to be given to a particular risk of prejudice to national security, in the context of other relevant factors, based on the evidence before it.

Item 6—Subsection 126B(4)

16                 Item 6 omits the provision in subsection 126(4) that requires the court to take into account, and give the greatest weight to, any risk of prejudice to national security (within the meaning of section 8 of the National Security Information (Criminal and Civil Proceedings) Act 2004 ). 

17                   This amendment (in conjunction with item 5) is intended to provide flexibility for the court in balancing factors relevant to its exercise of discretion, by allowing the court to determine the weight to be given to a particular risk of prejudice to national security based on the evidence before it.   The greater the risk of prejudice to national security and the greater the gravity of that prejudice, the greater the weight the court would be expected to give to this matter under proposed paragraph 126B(4)(j) and the less protection it will likely afford to journalists and their sources.  

Item 7—After subsection 126B(4)

18                 Item 7 inserts a new subsection 126B(4A) which will implement the provisions of current subsection 126D(2).  Item 8 has the effect of repealing section 126D.  Item 5 inserts current subsection 126D(1) into the matters that the court must consider under subsection 126B(4).

19                 This provision picks up the common law rule in O’Rourke v Darbishire [1920] AC 581 on the standard of proof required for loss of privilege on the grounds of misconduct, where that misconduct is the subject of the proceedings.  Where the commission of a fraud, offence or act that renders a person liable to a civil penalty is the subject of civil or criminal proceedings it would ordinarily need to be proved ‘on the balance of probabilities’ or ‘beyond reasonable doubt’, respectively.  However for the purposes of determining whether journalists’ privilege applies (particularly for the purposes of proposed paragraph 126B(4)(i)), where the relevant misconduct is a fact in issue, the court may find the misconduct is established if there are ‘reasonable grounds’ to make that finding.

Item 8—Subsection 126D

20                 Item 8 repeals subsection 126D which provides that Division 1A of Part 3.10 does not prevent the adducing of 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                 This amendment enables the possible application of journalists’ privilege to cases where the communication between a journalist and their source is itself an offence, such as a public servant’s unauthorised disclosure of information obtained in the course of official duties to a journalist in contravention of section 70 of the Commonwealth Crimes Act 1914 .

22                 This amendment (in conjunction with item 5) is intended to give the court flexibility to decide whether privilege should apply in cases of misconduct after taking into account all of the relevant factors.  The greater the gravity of the relevant misconduct, the greater the weight the court would be expected to give this matter under proposed paragraph 126B(4)(i) and the less protection it will likely afford to journalists and their sources.

Item 9—After section 131A

23                 Item 9 inserts section 131B which will extend the application of journalists’ privilege under Division 1A of Part 3.10 and section 131A, beyond federal and ACT court proceedings (as existing section 4 provides), to all proceedings in any Australian court for an offence against a law of the Commonwealth.

24                 This provision will enable the new journalists’ privilege to apply to all prosecutions for Commonwealth offences, including prosecutions that are heard in State and Territory courts.  It is not appropriate that a protected confider or a confidant in the prosecution of an offence against Commonwealth law in a federal or ACT court could apply to have evidence excluded on the basis of this privilege but that a protected confider or a confidant in the prosecution of the same Commonwealth offence in a State Court could not apply for a direction that evidence not be given.