Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Bill 2017 Passes NT Parliament

Friday 16 March 2018 @ 9.51 a.m. | Legal Research

On 15 March 2018, the Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Bill 2017 (Bill No. 37 of 2017) (the "Bill") passed the Northern Territory's Legislative Assembly (the "LA") without amendment and is currently awaiting Assent.

This Bill was initially introduced to NT House of Assembly by the Hon Natasha Fyles on 23 November 2017. At this time, the Bill was referred to the Economic Policy Scrutiny Committee (the "Committee") for inquiry and report in accordance with cl (4)(c) of the Committee’s Terms of Reference. Public Comment and Submissions relating to the Bill closed on 13 March 2018.

Background

As noted in the Explanatory Statement to the Bill (p 1):

“[the Bill] … amends the Evidence (National Uniform Legislation) Act [2011] to provide that a journalist may claim journalist privilege in order to protect a confidential source of information. The privilege is a qualified one, in that the court or judicial entity can require the journalist to identify the informant if this is justified by overriding public interest factors.”

A document released in March 2018, titled Inquiry into the Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Bill 2017 from the Committee, also indicates (at pg 4, Chair’s Preface):

“…The purpose of the Bill is to create a journalist shield law to provide a legal protection for  journalists against being compelled to provide evidence in a court which would disclose the identity of a journalist’s source. The privilege provided in this Bill is a qualified one, meaning that a court can make a determination, based on overriding public interest factors, that the privilege not apply and compel a journalist to provide evidence that reveals their informant’s identity.”

Brief Overview of the Amendments

The amendments outlined in the Bill will make changes to the Evidence (National Uniform Legislation) Act 2011 (the Act):

“…  to provide that a journalist may claim journalist privilege in order to protect a confidential source of information. The privilege is a qualified one, in that the court can require the journalist to identify the informant if this is justified by over-riding public interest considerations … The Bill also extends the time in which the courts will presume a person receives a letter (or other postal article) by post, to reflect the extended postal delivery timeframes that have been adopted by Australia Post.” (See Statement of compatibility with human rights, p 1).

A new section 127A (Journalist privilege) is to be inserted to the Act to provide for protection for journalists and their informants (see amending section 5 of the Bill) to:

“… not to disclose the informant's identity, neither the journalist nor the journalist's employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.”

The terms informant and journalist are also defined at s 127A(6), (pg 3 of the Bill), while s 160(1) (Postal Articles) of the Act is amended to also extend the time in which the courts will presume a person receives a letter (or other postal article) by post, to reflect the extended postal delivery time-frames that have been adopted by Australia Post.

Comment from NT Government

In a Media Release of 15 March 2018, Attorney-General Natasha Fyles commented:

“… Territorians want and deserve a government they can trust – and ensuring a strong local media is key to delivering that … However, NT journalists are carrying out this duty under an increased risk. Unlike their southern counterparts - Territory journalists involved in court proceedings can be forced to either expose their confidential sources or face jail time for contempt … We have listened to concerns that there aren’t enough legal protections to help journalists uphold their code of ethics."

The Attorney-General went on further to say:

“… While the legislation draws on interstate models it also closes some gaps in that legislation … Interstate definitions leave the notion of ‘news’ undefined, with no direct requirement that the ‘journalism’ in question involve fair and accurate reporting of information … We’ve built in protections for both journalists and the community, ensuring the privilege is only extended to professional journalists.”

The Media Release also revealed that the Bill is expected to be enacted in the coming months.

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Sources:

Evidence (National Uniform Legislation) Act 2011 (Act No 33 of 2011) – Available from TimeBase LawOne Service.

Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Bill 2017 (NT) – Bill and explanatory materials available from TimeBase LawOne Service.

Media Release: Restoring Trust: Parliament Passes New Laws to Protect Public Interest Journalism – NT Government Media Release (Natasha Fyles Attorney-General and Minister for Justice,15 March 2018)

Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Bill 2017 - Statement of Compatibility with Human Rights - Adopted 24 August 2017

Inquiry into the Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Bill 2017 - Economic Policy Scrutiny Committee – Report of March 2018

Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Bill – Economic Policy Scrutiny Committee Website - Accessed 16 March 2018

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