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Evidence Amendment (Journalists’ Privilege) Bill 2010 (No. 2)

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2010

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

THE SENATE

 

 

EVIDENCE AMENDMENT (JOURNALIST’S PRIVILEGE) BILL 2010

 

 

 

EXPLANATORY MEMORANDUM

 

Senator Brandis

 



 

Evidence Amendment (Journalist’s Privilege) Bill 2010

General Outline

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

 

2.        The amendments in respect of journalists’ sources will ensure that a court generally cannot compel a journalist or his or her employer to disclose a confidential source or to produce a document that would allow the identity of the source to be ascertained.  However, as a safeguard, disclosure may be required if the public interest in doing so outweighs the adverse effect of disclosure on the informant or any other person and the public interest in the communication of facts and opinion to the public by the news media and, for that purpose, having access to sources of facts.  The onus of establishing those criteria is upon the party seeking disclosure.

 

3.        The identification of the relevant public interest is a matter for the determination of the court.  However, it will encompass such considerations as the primacy of the administration of justice and the need to protect national security.  It is also anticipated that questions of the applicability of the privilege in particular cases could be determined in interlocutory proceedings rather than necessarily requiring journalists to face contempt proceedings after refusing to answer questions.

 

4.        The Bill retains the framework of the existing section 126B (which, in respect of journalists, the new proposed section 126D replaces).  The definition of ‘protected confidence’ in section 126A(1) will, however, be amended to replace the word ‘journalist’ with ‘another person’.  Section 126B will therefore serve as a general privilege relating to protected confidences other than those between journalists and their sources.  The intention of this amendment is to bring the Commonwealth Act in line with the regime currently provided for in the New South Wales Evidence Act 1995 .  The New South Wales Act extends privilege to disclosures arising in the course of a relationship in which the confidant was acting in a professional capacity under an obligation not to disclose the confidence.    The adoption of this position restores uniformity between the New South Wales and Commonwealth regimes and avoids arbitrarily confining the circumstances in which claims for privilege may be justifiably asserted.  It is also intended to bring this area of the law more closely into uniformity with equity courts’ protection of confidential relationships.

 

Financial Impact

 

5.        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 2010 .

Clause 2 - Commencement

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

Clause 3 - Schedules

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 - Subsection 126(A)(1)

Item 1 inserts definitions of ‘informant’, ‘journalist’ and ‘news medium’ for the purposes of defining the boundaries of the privilege to be created in the new section 126B.  The privilege applies to disclosures to someone who, in the normal course of that person’s work, collects information in the expectation that the information may be published in a news medium.  It is not intended that a claim for privilege could be made in respect of disclosures to a non-journalist that might be opportunistically relayed to a news medium outside of the normal course of that person’s work.

Item 2 - Subsection 126A(1)

Item 2 substitutes ‘another person’ for ‘journalist’ in the definition of ‘protected confidence’.  This extends the privilege defined in section 126B to disclosures arising in the course of a relationship in which the confidant was acting in a professional capacity under an obligation not to disclose the confidence.  The adoption of this position seeks to restore uniformity between the New South Wales and Commonwealth regimes and avoids arbitrarily confining the circumstances in which claims for privilege may be justifiably asserted.  It is also intended to bring this area of the law more closely into uniformity with equity courts’ protection of confidential relationships.  The omission of ‘journalist’ reflects the intention to provide a distinct regime for journalists under section 126D.

Item 3 - Subsection 126A(1)

Item 3 repeals the existing note to the definition of ‘protected confidence’.  The note states that the definition differs from the corresponding definition in the New South Wales Act.  Item 2, as noted above, restores uniformity in that respect.

Item 4 - Section 126D

Item 4 repeals section 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.

This amendment enables the possible application of journalist’s 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 .  However, the privilege will still be subject to a public interest test, which is to be weighed against the public interest in the communication of facts and opinion to the public by the news media.

Item 4 also creates a privilege for the protection of journalists’ sources.  Proposed subsection (1) provides that, where a journalist has promised not to inform an informant’s identity, neither the journalist nor his or her employer is to be compelled to disclose the informant’s identity or produce any document that would enable the informant’s identity to be ascertained.  Subsection (2) provides, however, that the privilege does not apply if the court determines that the public interest in the disclosure of the identity of the informant outweighs any likely adverse effect of the disclosure on the informant or any other person and the public interest in the continued dissemination of facts and opinion to the public by the news media.  The onus of establishing those criteria is upon the party seeking disclosure.

The identification of the relevant public interest is a matter for the determination of the court.  However, it will encompass such considerations as the primacy of the administration of justice and the need to protect national security.  It is also anticipated that questions of the applicability of the privilege in particular cases could be determined in interlocutory proceedings rather than necessarily requiring journalists to face contempt proceedings after refusing to answer questions.

Item 5 - After section 131A

Item 5 inserts section 131B which will extend the application of the privileges 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 the law of the Commonwealth.

This provision will enable the new privileges 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 confidant in the prosecution of the same Commonwealth offence in a State court could not apply for a direction that evidence not be given.