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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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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-Before section 126A
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.
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.
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)
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.
A 'protected confidence' and 'protected identity information' are defined
in section 126A.
Item 3-Subsection 126B(4)
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)
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.
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.
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)
Item 5 inserts two further considerations into the list of matters in
subsection 126B(4).
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.
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)
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).
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)
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).
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
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.
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.
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
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.
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.