Shield Laws for Journalists

Strategic Policy and Legal Services

Department of Justice and Attorney-General

GPO Box 149

BRISBANE  QLD  4001

By Email: shieldlaws@justice@qld.gov.au

Dear Madam/Sir

Shield Laws for Journalists

Please find below our response to the discussion paper on shield laws to protect journalists’ confidentiality.

We thank you for the extension of time in which to make this submission.

In formulating our views on what such a law should look like we have had regard to the principle that the press is and must be independent from government and has a presumptive, though not unconditional, right to seek out the news. Freedom of speech is rooted in a distrust of the government’s capacity to regulate speech, particularly political speech, where it is in a position of a conflict of interest. This conflict is no starker when it is seeking to restrain the use of embarrassing information obtained by journalists

In our submission any law should contain the following elements:

1.         the definition of journalist should be extended beyond the traditional categories but still should require some level of regularity and organisation. The Northern Territory definition provides a useful model

2.         the definition of a ‘source’ should be extended to include person/s who provide new or noteworthy information to a journalist for use in a news medium. Again, the Northern Territory legislation provides a helpful approach

3.         the definition of a ‘news medium’ should be extended to capture any medium designed for the dissemination of information to the public or a section of the public. Again, the Northern Territory model represents the most helpful approach.

4.         it should create a presumptive right to withhold access, departure from which should be justified by the person seeking access to the information

5.         the law should apply broadly to any court, tribunal or other body which has the power to compel the giving of testimony or production of documents

6.         the privilege should not be restricted to confidential information, for the purpose of the privilege is to protect the public interest in the maintenance of an independent media. That interest is not uniquely jeopardised by the disclosure of confidential sources. The purpose of the law is to protect the vital democratic role of the media by giving its practitioners the widest possible latitude to seek and disseminate truthful speech about matters of public interest. However, the fact information is not confidential should be a factor to be weighed in considering the public interest factors

7.         A court should be able to override the privilege where:

(a)        the information is critical or necessary for a case

(b)        the information cannot be reasonably obtained by alternative means

(c)        disclosure of the information is necessary in a public interest which outweighs the public interest served by the shield

(d)        In assessing whether there is an overriding public interest a court should have regard to all the circumstances including

(i)         Whether the proceeding is a criminal or civil proceeding

(ii)        In the case of a criminal proceeding, whether the prosecutor or accused is seeking access to the information

(iii)       Whether the journalist has given an undertaking of confidentiality

(iv)      Whether the substance of the information has been disclosed by the source or some other person

This proposal has the following advantages over the existing laws in Australia:

(a)        In some Jurisdictions it is for the journalist to convince the Court that disclosure should not occur

(b)        The privilege is not restricted to confidential information

(c)        The privilege is not limited to Courts or other judicial entities

We thank you QCCL intern Matthew Geraghty for his contribution to this document.

We trust this is of assistance to you.