International Law

Shield laws set for lively debate.

Some heavy going still ahead on the issue of proposed changes to shield laws for journalists, an important aspect of the discussion we are having about free speech, the right to know and the role of the media. Key players include:

The Attorney General Robert McClelland, who on behalf of the Government has put on the table the Evidence Amendment (Journalists' Privilege) Bill 2009, currently the subject of an inquiry by the Senate Legal and Constitutional Affairs Committee. With some changes, the legislation would enact for journalists in matters arising under Federal law, current protections in NSW legislation that apply to professional confidences in a variety of circumstances, one of which is journalist-source.

The state governments.With the Commonwealth in the Standing Committee of Attorneys General, they have been working away on changes to uniform evidence legislation that would extend protections for professional confidences to all jurisdictions, in line with the NSW law, as recommended by three law reform commissions, and adopted by SCAG in 2005. Chris Merritt in The Australian reports that the Attorney says the states have all agreed to the inclusion of new "public interest factors" in the model uniform evidence bill that would give judges discretion to protect a broad range of professional confidences. "These new factors give clear recognition to the public interest in freedom of the press" and are consistent with what is in the bill before the Senate Committee.However the Western Australian Attorney General in a submission to the Committee has cried foul, arguing the Commonwealth has jumped the gun in going ahead with journalist specific legislation, and objecting to some of the proposed changes, for example removing privilege where an offence or misconduct may have been committed by a confidant.Similar views are expressed in submissions by the NSW and ACT Attorneys.

The cross-bench senators and the Opposition who will determine what emerges from the Senate. Nicola Berkovic in The Australian reports concerns of The Greens and Senator Xenophon that the protections don't go far enough, and uncertainty about where the Opposition stand.

The media. In separate submissions the Australian Press Council, Australian Associated Press, Media, Entertainment & Arts Alliance, and Australia's Right To Know make a number of points about the detail of the proposal, links with whistleblower protections and secrecy laws. All argue for changes to ensure the protection of the identity of a source is the starting presumption only to be overridden by the exercise of a discretion where compelling public interests require.

The Committee has a hearing scheduled for Melbourne next Tuesday.Three and a half hours will almost certainly not be sufficient to resolve issues that have been raised in the submissions particularly the adequacy of the protections proposed; and the case for singling the media and journalists out for special professional confidence protections. On this last point there are important issues regarding definitions (none in the bill) of the media and journalists, further complicated by the growth of non-mainstream disseminators of information and opinion; and the absence of those attributes such as mandatory qualifications and enforcable standards of conduct usually associated with a profession. Then there is the prospect of lack of uniformity with different laws applying to state and territory matters - who said operating within a federal system was easy? (No-one actually).

The submissions by Dr Fernandez of the School of Journalism at Curtin University and the Public Interest Advocacy Centre (written by Mark Polden formerly a long time in-house legal adviser at Fairfax) are well worth a read. Both are on the witness list on Tuesday. But not an attorney general to be seen?

Full post as published by Open and Shut on April 23, 2009 (boomark / email).