Attorney General to pursue uniform national protection for journalists and sources at next Australia, State and Territory law and justice meeting

June 19, 2013 |

The Attorney General issued a media release announcing that at the next meeting of Attorneys General (and their equivalents) the Commonwealth will be pursuing uniform national protection for journalists and sources.

The press release provides:


 Attorney-General Mark Dreyfus QC today announced that the Australian Government will pursue uniform national protection for journalists and their sources at the next Australian and state and territory law and justice ministers meeting.

“Recent court proceedings have highlighted the inadequacy of protections for journalists in some jurisdictions and lack of uniformity in laws across Australia,” Mr Dreyfus said.

“Journalists play an important role in our society by providing the community with access to information that is in the public interest and the media must be given freedom to perform that role effectively.

“Journalists need to be confident that they can protect the identity of their sources without being held in contempt of court.”

Currently the Commonwealth, NSW, Victoria, Western Australia and the ACT have laws of various strengths and coverage for journalists’ privilege. Queensland, South Australia and the Northern Territory don’t currently have specific laws to protect the relationship between journalists and their sources.

In 2011 the Government supported the passing of a Private Members Bill which requires a Court to consider whether there will be potential harm to the source or journalist if evidence is given, or if information was passed contrary to the law when deciding whether a source should be revealed.

“It is puzzling that Senator Brandis has taken credit for creating the Commonwealth’s shield laws, when his amendments to Mr Wilkie and Senator Xenophon’s bill didn’t make it out of the Senate,” Mr Dreyfus said.

“I’m calling on the opposition to reconsider the importance of uniform national protection for media, following Senator Brandis’ recent comments that journalists shouldn’t be so focused on protection for their sources.

“It’s crucial that we adopt a consistent approach to journalists’ privilege so they can perform this vital role.

“Now is the right time to reconsider journalist shield laws, which is why I have placed harmonising and strengthening protections for journalists across jurisdictions on the agenda for the next Standing Council on Law and Justice meeting.”

The Attorney General is correct to describe the legal situation as confused.  The provisions of the Uniform Evidence Act are poorly drafted and do not assist any protagonist, journalist or those seeking notes or other information held by them.  The recent decisions in Victoria, especially McKenzie & Anor v Magistrates’ Court of Victoria & Anor [2013] VSCA 81, highlight the unsatisfactory state of affairs. It is a complicated issue.  Even in the USA where the First Amendment places such primacy on freedom of expression and gives the media enormous latitude there is no blanket protection of journalistic sources.  There will always be issues of competing weight, such as in case in non party discovery, applications to determine the name of a party against whom a party may have a legitimate action and actions involving breaches of confidence.  What weight will be given to the competing issues is an interesting matter for the legislature.

It won’t be a matter resolved in this session of the Commonwealth Parliament.


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