Shield Laws

Lizzie O'Shea
Federal

Shield laws are designed to protect journalists and other commentators from being forced to reveal confidential information or sources. A new set of shield laws, championed by independent member for Denison Andrew Wilkie commenced on 13 April 2011. The Evidence Amendment (Journalists’ Privilege) Act 2011 amends the Evidence Act 1995.

Previously, journalists could be held in contempt of court if they refused to disclose their source. This is very much a real issue for journalists: in 2007, Herald Sun journalists Michael Harvey and Gerard McManus were fined for being in contempt of court for refusing to reveal sources for a story about cuts to war veterans’ entitlements. The court found that journalists were not above the law when protecting their sources. They have no legal protection in these situations, even when attempting to comply with their own code of ethics. This has caused Harvey and McManus material difficulty personally and professionally. Amongst other things, their criminal records mean that working in the US is now practically impossible.

The passage of the new shield laws has therefore been welcomed by the journalists’ union, the Media, Entertainment and Arts Alliance. This is mostly for its broad definition of journalist, which includes ‘a person who is engaged and active in the publication of news.’ This definition includes bloggers and other citizen journalists, representing an attempt to address issues raised by new media formats.

All that remains is for states and territories to pass complementary legislation. NSW is currently the only jurisdiction with shield laws in place, but they are not as protective as the Federal regime. Victoria looks set to be the first state to pass new legislation closely modelled on the Federal laws, but with the significant exception that bloggers will not be afforded protection. The WA Attorney General Christian Porter, after initially labelling the proposed changes to his state laws as ‘useless’, has become more sympathetic to the idea.

There are also ongoing criticisms of the federal regime. Current shield laws do not extend to anti-corruption watchdogs. This includes super-judicial bodies like the Victorian Office of Police Integrity, NSW Crime Commission and Australian Building and Construction Commission. In these ‘star chambers’ journalists are not protected and may still be required to answer questions about sources. There is some suggestion WA may be the first jurisdiction to address this issue. But elsewhere, this does not look likely to change in the near future. Nonetheless, the federal shield laws do represent a step towards greater press freedom in Australia.

LIZZIE O’SHEA is a Melbourne-based lawyer.

(2011) 36(2) AltLJ 129
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