The Protection of Confidential Sources in Australia Part 3: International Context
How do Australian privilege laws stack up in an international context? Bonny Symons-Brown concludes her three-part series on protection of confidential sources by looking at similar legislation in New Zealand, the UK and the USA.
New Zealand: When assessing Australian privilege laws in an international context, New Zealand law is commonly cited as realistic legislation to be emulated. The Western Australia Law Reform Commission released a paper on Professional Privilege for Confidential Communications in 1993 and found that “for reasons of clarity, the statutory discretion be based upon a similar working provision in the New Zealand Evidence Act.” Similarly, the Australia Press Council outlined their support for the New Zealand Act in their submission to the Australian Law Reform Commission in 2005 regarding uniform evidence laws.
Under section 64 of New Zealand's Evidence Bill, "If a journalists has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered." However, "A Judge of the High Court may order that subsection 1 (above) is not to apply if satisfied by a party to a civil or criminal proceeding that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs a. any likely adverse effect of the disclosure on the informant or any other person; and b. the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts."
United Kingdom: Under Section 10 of the Contempt of Court Act 1981 (UK) “no court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible unless it is established to the satisfaction of the court that it is necessary in the interests of justice or national security or the prevention of disorder or crime”. According to Media Law experts John Burrows and Ursula Cheer, until New Zealand passed its extensive professional privilege reforms, UK law was significantly more generous to the media as it stated a rule of non-disclosure with limited exceptions based only on necessity. However this ‘firm rule’ has been eroded by the introduction of strict sedition laws which challenge the extent of ‘national interests’. Mike Holderness of the London Freeland Branch of the Nation Union of Journalists says, “UK law needs to be changed. The "ridiculous" Section 10 of the Contempt of Court Act 1981 says that journalists can protect sources - "unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice". The trouble is that this can mean anything that the court wants it to mean. It was a last-minute amendment to the Act, argued in terms of a journalist knowing the identity of a murderer.” Holderness’ point is even more relevant in the present climate - it is not difficult to imagine the conditions in the Act could be stretched beyond their original intensions, particularly after the security crackdown bought about by the London bombings.
United States: In the USA, 31 states and the District of Columbia have enacted Shield Laws to protect journalists’ professional confidential privileges – these laws are not absolute, and like the UK, NZ and NSW, the laws do not supersede more compelling needs for disclosure. They are also inconsistent across the nation. Following the outcry after the 2005 convictions of Judith Miller and Matthew Cooper for contempt there has been intense campaigning in support of national shield laws. Senators Dodd and Luger argued in USA Today that “the cases of Miller, Cooper and others make it clear that a federal shield law is needed to protect the public's right to know — which is the ultimate check on abuses by those in power.” The US also has a Constitutional amendment upholding the freedom of the press. The First Amendment states “Congress shall make no law...abridging the freedom of speech, or of the press.” This constitutional guarantee has been upheld by the courts making it a significant legal defense.
When it comes to protecting confidential sources, the media must acknowledge there are in some instances, undeniable reasons for revelation to be justified. While absolute privilege is fraught with too many difficulties to be practical, no privilege for journalists’ confidential sources would certainly have a chilling effect on the media. A qualified privilege, in line with that of New Zealand is the most appropriate option to balance the competing interests of the public right to know.
Have Your Say: Which country has the best privilege laws?
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New Zealand: When assessing Australian privilege laws in an international context, New Zealand law is commonly cited as realistic legislation to be emulated. The Western Australia Law Reform Commission released a paper on Professional Privilege for Confidential Communications in 1993 and found that “for reasons of clarity, the statutory discretion be based upon a similar working provision in the New Zealand Evidence Act.” Similarly, the Australia Press Council outlined their support for the New Zealand Act in their submission to the Australian Law Reform Commission in 2005 regarding uniform evidence laws.
Under section 64 of New Zealand's Evidence Bill, "If a journalists has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered." However, "A Judge of the High Court may order that subsection 1 (above) is not to apply if satisfied by a party to a civil or criminal proceeding that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs a. any likely adverse effect of the disclosure on the informant or any other person; and b. the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts."
United Kingdom: Under Section 10 of the Contempt of Court Act 1981 (UK) “no court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible unless it is established to the satisfaction of the court that it is necessary in the interests of justice or national security or the prevention of disorder or crime”. According to Media Law experts John Burrows and Ursula Cheer, until New Zealand passed its extensive professional privilege reforms, UK law was significantly more generous to the media as it stated a rule of non-disclosure with limited exceptions based only on necessity. However this ‘firm rule’ has been eroded by the introduction of strict sedition laws which challenge the extent of ‘national interests’. Mike Holderness of the London Freeland Branch of the Nation Union of Journalists says, “UK law needs to be changed. The "ridiculous" Section 10 of the Contempt of Court Act 1981 says that journalists can protect sources - "unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice". The trouble is that this can mean anything that the court wants it to mean. It was a last-minute amendment to the Act, argued in terms of a journalist knowing the identity of a murderer.” Holderness’ point is even more relevant in the present climate - it is not difficult to imagine the conditions in the Act could be stretched beyond their original intensions, particularly after the security crackdown bought about by the London bombings.
United States: In the USA, 31 states and the District of Columbia have enacted Shield Laws to protect journalists’ professional confidential privileges – these laws are not absolute, and like the UK, NZ and NSW, the laws do not supersede more compelling needs for disclosure. They are also inconsistent across the nation. Following the outcry after the 2005 convictions of Judith Miller and Matthew Cooper for contempt there has been intense campaigning in support of national shield laws. Senators Dodd and Luger argued in USA Today that “the cases of Miller, Cooper and others make it clear that a federal shield law is needed to protect the public's right to know — which is the ultimate check on abuses by those in power.” The US also has a Constitutional amendment upholding the freedom of the press. The First Amendment states “Congress shall make no law...abridging the freedom of speech, or of the press.” This constitutional guarantee has been upheld by the courts making it a significant legal defense.
When it comes to protecting confidential sources, the media must acknowledge there are in some instances, undeniable reasons for revelation to be justified. While absolute privilege is fraught with too many difficulties to be practical, no privilege for journalists’ confidential sources would certainly have a chilling effect on the media. A qualified privilege, in line with that of New Zealand is the most appropriate option to balance the competing interests of the public right to know.
Have Your Say: Which country has the best privilege laws?
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