South Australia joins the nation in providing greater protection for journalists

The South Australian Government recently passed the Evidence (Journalists) Amendment Bill 2018, providing greater protection to journalists and enabling them to keep sources confidential when it is in the public interest for that protection to apply.

Ordinarily, journalists are bound by the principles of transparency and are required to disclose the sources of their information. This appropriately allows the public to evaluate the credibility and integrity of the information provided. However, in some cases journalists must agree to keep their source confidential, in order to protect against detrimental consequences including threats to safety, employment and reputation.

Shield laws such as this Bill protect journalists from being held in contempt of court for refusing to reveal their confidential sources, ensuring that people who are willing to confide in matters of public importance can do so without fear of personal repercussions. Until this Bill was passed, South Australia was one of only two Australian states that had not enacted specific privilege laws dealing with journalists and their sources.

The effect of the Bill, which inserts a new Part 8A into the Evidence Act 1929 (SA), is to ensure that “journalists” (persons engaged in the profession or occupation of journalism in connection with the publication of information in a news medium) and “prescribed persons in respect of journalists” (i.e. employers, those who engage journalists under contracts for services, or other prescribed persons) will not incur criminal or civil liability in most official proceedings for failing to answer questions or produce material which may disclose the identity of an “informant”.

Although an informant is defined as a person who gives information to a journalist in the normal course of that journalist’s work, only informants who give information to a journalist in circumstances where they “reasonably expected” that their identify will be kept confidential will invoke the protection.

The protection will not apply, however, where the court or commission in question is satisfied that the public interest in disclosing the source of the informant outweighs:

• Any likely adverse effect of the disclosure on the informant or anyone else;
• The public interest relating to the communication of information by the news media generally; and
• The need of the news media to be able to access information held by potential informants (i.e. the potential deterrent to other sources).

Although in most courtroom matters an application for the protection to be overturned and a source to be revealed will be required, inquisitorial bodies such as the Independent Commissioner Against Corruption and the Ombudsman will still have the power to decide on their own initiative if a source should be revealed.

Some last-minute amendments to the Bill were introduced, including a requirement that the Act be reviewed in four years, before Bill received bi-partisan support on Thursday 2 August 2018. The Bill once enacted will apply to proceedings commenced both before and after enactment.

In a public statement Attorney-General acknowledged that “a journalist’s ability to protect their sources is one of the hallmarks of a free and independent press and will improve the functioning of our democracy,” and noted her expectation that “it would be rare for the public interest to override the journalists’ need to protect their source.”

The Bill largely reflects and picks up the wording used in the provisions of the Commonwealth Evidence Act 1995, which will assist in maintaining consistency between the approaches taken at federal and state level. Queensland is now the only Australian state without ‘journalist shield’ laws in place.

Although some have expressed concerns about the potential for unilateral decisions to be made by judicial and inquisitorial officers with respect to revealing sources, the passing of the Bill reflects a significant move forward for South Australia and brings Australia closer to a uniform approach to journalist source protection.

This article was written by Peter Campbell, Partner and Rebecca Sandford, Special Counsel.