The proposed legislation looks to protect journalists and others in three ways:
- Introducing professional confidential relationship protection provisions that allow professional persons (including journalists) to refuse to answer questions about their clients where that information has been given in express or implied confidentiality.
- Creating a rebuttable presumption that when a journalist has promised not to disclose an informant’s identity, they cannot be compelled to give evidence that would identify the informant. This protection has two limits: first, the information must be disclosed to the journalist with the expectation that the information be published; and second, that a judicial body has the discretion to direct that evidence be given where the public interest in identity of the informant outweighs any adverse effect on the informant (or any other person) and the public interest in the communication of facts and the ability to access sources.
- Whistleblowers may provide information to journalists anonymously if their public sector employer fails to act satisfactorily on the information. Further, any whistleblower that believes detrimental action may be taken against them due to their disclosure may apply to the Supreme Court to have the detrimental action remedied; grant an injunction against such action; or potentially change workplaces.
The new Bill improves on the Commonwealth version in that it does not limit the shield laws to information acquired by the courts. The laws extend to other judicial bodies such as tribunals, inquiries and Corruption and Crime Commission hearings. One failing of the bill is that it maintains a strict definition of ‘journalist’ that excludes bloggers and other online news sources, rather than adopt the more flexible Commonwealth definition (though it is yet to be judicially tested). As a result, the legislation fails to protect various online ‘journalists’ that are becoming increasingly prominent and important in disseminating news in the contemporary technological world of information.
Nevertheless, the bill offers much welcomed protection for journalists in Western Australia and, as WA Attorney-General Christian Porter notes, hopefully it will balance the public’s need for a free media with the need for judicial bodies to access all relevant information in the interest of pursuing justice.
MICHAEL WORKMAN is a graduate law student at UWA.