CHAPTER 2

OVERVIEW OF THE BILLS

2.1        Chapter 2 examines the main provisions contained in the two Bills and compares their distinguishing features.

Introduction

2.2        The two Bills share certain key elements, although they insert them into the Evidence Act in different ways. Both Bills are identical in their effect with respect to the journalists' privilege.[1]

2.3        The model on which both Bills are based is contained in New Zealand's Evidence Act 2006. Section 68 of that Act provides that journalists are not required to give evidence unless the party requesting the evidence can prove that certain criteria have been satisfied. This differs from the current situation in Australia where a journalist is required to provide evidence unless they can establish that they fall within one of the grounds which justify an exemption.[2]

2.4        Both Bills would effectively reverse the burden of proof so that, rather than a journalist having to prove that they should be given the privilege, the onus shifts to the person seeking the evidence who would have to prove why the journalist should not be given the otherwise automatic exemption.[3]

2.5        The Brandis Bill also creates a more general privilege for professionals by providing the courts with the capacity to protect a range of professional confidential relationships.

Definitions

2.6        Both Bills provide definitions of:

• 'informant' – a person who gives information to a journalist in the normal course of the journalist's work for the purpose of its publication in a news medium;
• 'journalist' – a person who works in such a way that in the normal course of that person's work they may be given material by an informant in the expectation that the information may be published in a news medium; and
• 'news medium' – a medium for the dissemination to the public or a section of the public of news and observations on news.[4]

Key operative provisions

2.7        The key operative provisions in both Bills provide an assumption that journalists who have promised not to disclose the identity of an informant cannot be compelled to answer questions in such a manner that the promise of confidentiality is thwarted.[5] The court can, however, require the evidence to be provided if a party can satisfy the court that 'the public interest in the disclosure of [that] evidence' outweighs:

• any likely adverse effect on 'the informant or any other person'; and
• 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.[6]

2.8        The court may also make any terms and conditions it thinks fit on any order to disclose the relevant evidence.[7]

Extended application to all proceedings for Commonwealth offences

2.9        The two Bills propose to extend the operation of the protections included in the Bills to all proceedings for Commonwealth offences.[8] This follows the model in the government's 2009 bill.

Miscellaneous provisions with minor differences

2.10      Item 3 of Schedule 1 of the Wilkie Bill applies the journalists' privilege to pre‐trial proceedings by introducing proposed new subsection 131A(1) into the Evidence Act. This subsection allows someone who is the subject of a disclosure requirement to refuse the order and it would fall to the party seeking disclosure to apply to the court for an order that the rebuttable presumption of the privilege should apply.

2.11      The Brandis Bill does not deal with pre-trial proceedings. However, current subsection 131A(1) of the Evidence Act would give an extended application to both the journalists' privilege and the general professional privilege since it stipulates that these matters are to be dealt with by the courts in the same manner as if the objection to providing this information under a disclosure requirement is an objection to giving evidence in court.[9]

2.12      Finally, Item 4 of Schedule 1 of the Wilkie Bill amends sections of the Family Law Act 1975 (Family Law Act) to adjust the relevant provisions so that the correct sections of the Evidence Act are referred to when there is a relevant case under the Family Law Act.[10] Item 5 of Schedule 1 of the Wilkie Bill also seeks to tidy up the Family Law Act by repealing section 100C (which is effectively superfluous since a new arrangement in the Family Law Act (sections 69ZX and 69ZN) ensures that it is the court's duty in all proceedings involving children to ensure that their best interests are protected).[11]

Key provisions distinguishing the Wilkie Bill

2.13      The Wilkie Bill repeals Division 1A of Part 3 of the Evidence Act (currently titled 'Professional confidential relationship privilege') and inserts proposed new Division 1A titled 'Journalists' privilege'. The numbering of the sections proposed by the Bill is explained in the EM by reference to the uniform model law, namely that sections 126A‐126F are left vacant in line with a future intention to address the matters that should be canvassed there.[12] The new Division has a proposed definition section introducing the definitions (outlined above) and also the key operative provisions in proposed new section 126H. With respect to the definitions, the EM explains that bloggers, to the extent they may be defined as operating on a casual or unpaid basis, would not come within the definition of a journalist, who must be operating within 'the normal course of [their] work'.[13]

Key provisions distinguishing the Brandis Bill

2.14      The Brandis Bill amends 'Division 1A – Professional confidential relationship privilege' of the Evidence Act by inserting the definitions (outlined above) into current section 126A. The EM explains that disclosures to a non‐journalist that might be opportunistically relayed to a news medium outside of the normal course of that person's work would not be covered by the privilege.[14]

2.15      Item 2 of Schedule 1 replaces the current reference to a journalist with 'another person' in Division 1A – Professional confidential relationship privilege, thereby creating the more general privilege for professionals, in the form of a judicial discretion. The term 'professional' is not defined.[15]

2.16      The Brandis Bill also seeks to replace the provision which currently deals with the loss of the privilege in cases of misconduct (section 126D 'Loss of professional confidential relationship privilege: misconduct') with a new 126D containing the key operative provisions (outlined above).

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