Evidence (Protection for Journalists) Amendment Bill 2013 (SA): Private Members Bill

The commencement of the Evidence Amendment (Journalist Privilege) Act 2012 (Vic) on 1 January 2013, amending Victoria’s Evidence Act 2008 to include provisions providing for journalist privilege with respect to divulging the identity of informants – or the ‘shield law’ as it is known; appears to have gained support in other jurisdictions. In South Australia (SA) a private members Bill to protect journalist’s sources has also been introduced into the SA Parliament on 20 February 2013.

The Bill is the Evidence (Protection of Journalists) Amendment Bill 2013 (LC Bill No 123) introduced by the Hon JA Darley. The Bill proposes to the amend the Evidence Act 1929 (SA) to protect journalists against having to disclose the identity of informants or information pertaining to such confidential sources.

Basic Purpose of the Proposed Law

The Bill provides that where a person satisfies the court that they are a professional journalist or a prescribed person in respect of a professional journalist and they have been given information by an informant in the expectation that the information may be published in the news medium, then they will not incur any criminal or civil liability for failing or refusing to provide details that may “directly or indirectly disclose” the identity of their informant in the course of court or royal commission proceedings.

Who does the Bill Protect?

The Bill defines a prescribed person(s) or the poeple it protects as:

a journalist, an employer of a journalist, a person who engages a journalist under a contract for services or any other person prescribed by regulation.... source 2nd Reading Speech.

The Bill defines an informant as:

a person who gives information to a journalist in the normal course of the journalist's work in the expectation that the information may be published in the news medium.... source 2nd Reading Speech.

Exceptions

Circumstances where it may not be appropriate to provide protection against the disclosure of the identity of or information pertaining to a journalist's sources are provided for as follows in the Bill:

“...An exception to the general rule where a court or commission is satisfied that it is in the public interest or in the interests of justice to make an order for disclosure or if the benefit of disclosing the identity of the informant or answering questions or providing relevant information outweighs the prejudicial effect that the disclosure would have on the informant or the journalist as the case may be. The court may make such an order on the application of a party to the proceedings or on its own motion.” ... source 2nd Reading Speech.

In such applications the onus will be on that party making the application to prove that the information in question ought to be disclosed.

Scope of Provisions

The intent is that the new law would  apply to proceedings in all of the courts of SA as well as to commissions of inquiry instigated under the Royal Commissions Act 1917 (SA).

Where a journalist refuses to disclose information pertaining to the identity a person or body conducting proceedings or any party to the proceedings may apply to the Supreme Court for an order that the privilege not apply.

The Bill purports to create a professional relationship between professional journalists and informants, subject to some “very important exceptions” not as broad but not unlike the one between lawyers and clients, to afford professional journalists who receive information from informants with protection against disclosure.

The Bills overall objectives are stated as: 

“seek[ing] to enshrine in legislation the fundamental principle that journalists should not be compelled to reveal their sources and, equally, if not more importantly, better promote the notion of the public's right to information. In so doing, it will bring South Australia into line with other jurisdictions that have recently implemented similar pieces of legislation.”

The Bill is part of wider national trend:

“The need for adequate shield laws in Australia has been well canvassed by Australia's Right to Know, a coalition of 12 major media companies formed in May 2007 to address concerns about free speech in Australia. Since its inception, the coalition has worked with commonwealth and state governments to establish new policy and best practice aimed at improving what they consider Australia's relatively poor world ranking in terms of freedom of speech.”

The above is based on the 2nd Reading Speech for the Bill. 

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