O PINIO N
r
EVIDENCE REFORM
INSUFFICIENT
CHANGES TO THE EVIDENCE ACT ARE INADEQUATE
TO PROTECT JOURNALISTS AND THEIR SOURCES.
BY ZOE WATSON
In June 2007 two journalists, Gerard McManus and
Michael Harvey, pleaded guilty to contempt of court
charges and were fined $7000 after refusing to
reveal their source for a story that highlighted the
inadequacies of the Veterans Affairs Department.1
These new laws have yet to be tested in court; however, a test
for how to weight up the likely harm and desirability of the
evidence will need to be established by precedent.
These reforms have been widely criticised by media
professionals as being inadequate, as they fail to protect
The two journalists had been directed by the Court, during the
committal of a whistleblowing public servant, to disclose their
sources in relation to the story.
This case highlighted Australia's need for a uniform Shield Law to
protect journalists from conviction for not revealing their sources.
the journalists' sources in any way and the protection for
journalists is at the judge's discretion and is not mandatory.
The Commonwealth amendment fails to defend
whistleblowers who report to the media from criminal charges
which, if pressed, would then make the journalist part of a
A Shield Law or reporter's privilege is legislation that has been
designed to protect journalists from being forced to reveal
confidential information, or the source of that information,
during legal proceedings.
The Australian Press Council's Executive Secretary, Jack
Herman, noted: "The Harvey and McManus case didn't relate
to a serious crime or a threat to national security. Their only
real "crime" is holding the government accountable to those
who elected it".2
Recently the Evidence Amendment (Journalists' Privilege) Act
2007 was passed, amending the Evidence Act 1995 (Cth).
The federal Shield Law needs to be accompanied by
whistleblower protection, state Shield Laws in order to protect
the sources and journalists from prosecution and the removal
of judge's discretion.
Currently in Britain journalists are protected by s10 of the
Contempt of Court Act 1981 which states that a court is not
to order the press to reveal the identity of a source unless
satisfied that it is "necessary in the interests of justice or
national security or for the prevention of disorder or crime".
This amendment was based on the NSW Evidence Amendment
The British Public Interest Disclosure Act 1998 also protects
(Confidential Communications) Act 1997.
whistleblowers from any legal repercussions.
NSW is currently the only state to offer any type of legal
protection to journalists who have been requested to reveal
their sources.
This Commonwealth amendment has introduced a privilege
at the guided discretion of the trial judge, at the trial or
the pre-trial stage of any civil or criminal proceedings, for
communications made in confidence to journalists.
The new provisions give the court the power to exclude
evidence which would disclose confidential information made
to a journalist acting in a professional capacity not to disclose
New Zealand protects both journalists and their sources in s64
of the Evidence Act 2006, which has made the protection of
sources the default position from which courts can only move,
in the interests of justice, in the direst of circumstances.
In the US, where there is already the strong protection of free
speech via the First Amendment, 32 states have active Shield
Laws and The Free Flow of Information Bill is currently before
the House of Representatives.
The protection of journalists' confidential sources is vital to
that information.
the role of a free press in a democratic society. For Australia
The court is guided to exclude information of this kind if
the nature and the extent of the likely harm to a protected
confider outweigh the desirability of the evidence being given.
whistleblower protection legislation needs to be passed
Factors that will affect the desirability include the public's right
or need to be informed, the importance of the evidence to the
trial and the nature of the trial.
18
criminal investigation.
YOUNG LAWYERS' JOURNAL ISSUE 41 2008
to offer the same protection as other common law countries
and the judge's discretion needs to be removed and instead
introduce a default position similar to that of New Zealand. ■
1.
2.
R v Gerard Thomas McManus and Michael Harvey [2007] VCC 619.
Australian Press Council News Journal, August 2007, vol 19 no 3.