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International Law

: Open and Shut

Journalists run rings around the professions to protect confidential relationships

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It will be interesting to see if debate in the Senate on a shield law for journalists picks up on the detailed analysis of the Wilkie and Brandis bills by Kirsty Magarey of the Parliamentary Library in this Bills Digest published last week. (PDF 338KB). The paper provides the background to these initiatives and notes:
"The Wilkie Bill continues successive governments' failures to attend to the needs of  professionals other than journalists. There would seem to be no justification given as to why doctors/ counsellors/social workers et cetera are not having their need for a protected confidential relationship recognised. There have now been four Bills attending to journalists' privilege but only one, the Brandis Bill, has given the general professionals' need for confidentiality any attention."
The Wilkie bill has passed the House of Representatives. The Brandis bill has not been debated.

The paper points out that the bills are identical in their effect with respect to a rebuttable presumption of journalists' privilege, but notes neither "offers a particularly rigorous definition of journalism" and would extend privilege to "all employed journalists working in all forms of news media, a definition that would encompass the efforts both of investigative journalists and gossip columnists."  While the bills provide for a person to seek an order that the identity of an informant be revealed in certain circumstances the paper says the heavy onus involved "will apply whether the piece is a less edifying article or whether it is an investigative piece making the weighty contributions to our democratic system which journalists can make."

It also notes
"The repeal of provisions recognising the significance of illegality/misconduct leaves the Courts  with less guidance in exercising their reserve discretion to prevent the presumptive exercise of the privilege."
The Brandis bill broadens privilege (at a lower level than that afforded to journalists) to   (undefined) professionals who are in a position to accept and keep their clients confidences, in line with recommendations in law reform commission reports in 1985 and 2006, and Federal-state agreement on uniformity in evidence acts. The paper says that taking the step to address this issue " would also provide evidence that despite the fact Parliamentarians and journalists necessarily have a close relationship, legislators interests are broader than simply addressing the need to protect journalists."

Full post as published by Open and Shut on November 15, 2010 (boomark / email).

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