New shield laws protecting Australian journalists’ confidential sources now also cover independent media and even bloggers and “citizen journalists”, thanks to minor but critical amendments by The Greens in the Senate yesterday afternoon.

Under the new laws, if a journalist has promised to keep an informant’s identity secret, a court cannot force the journalist or their employer to answer any question or produce any document that would reveal the informant’s identity or enable their identity to be deduced – unless public interest concerns outweigh the disclosure.

However as the Member for Melbourne Adam Brandt foreshadowed in November, The Greens wanted the shield law to protect “anyone engaged in the process of journalism, no matter who they are or in what medium they publish,” not just employee-journalists in the big media factories.

Greens Senator Scott Ludlam’s Evidence Amendment (Journalists’ Privilege) Bill 2010, which in turn amends the Evidence Act 1995, achieved just that by changing two key definitions:

journalist means a person who in normal course of that person’s work is engaged and active in the publication of news and may be given information by an informant in the expectation that the information may be published in a new medium.

news medium means a any medium for the dissemination to the public or a section of the public of news and observations on news.

This overturns the employment test outlined in the bill’s original explanatory memorandum. “The journalist should be operating in the course of their work. This means that the journalist should be employed as such for the privilege to operate, and private individuals who make postings on the internet or produce non-professional news publications, where this is not their job, will not be covered,” it said.

In Thursday’s Senate debate, Labor supported Ludlam’s amendments, but Shadow Attorney-General, Senator George Brandis, opposed them. Brandis agreed that protection should be offered to journalists even if they “may be acting without remuneration”, but thought the amendments went too far.

“It would not merely protect journalists and it would not merely protect news media; it would be carte blanche to anyone who wanted to publish anything anywhere that might be considered to be news,” Brandis said. “I ask honourable senators to pause to reflect on what that would mean, for example, for the operation of the law of defamation.”

Whether the new law really is carte blanche remains to be seen. The meaning of “any medium” seems clear enough: everything But it’ll be up to the courts to decide the precise meaning “engaged and active in the publication of news” – or, for that matter, “journalist”.

“The balance I think we have been able to strike here is to say that the plain English definition of ‘journalist’ is still here in the bill,” Ludlam told the Senate. “We do not want to be tying the courts up in long debates about whether the door should be open or not; whether you are a journalist or not. The argument that we want heard in the courts is: should this protected confidence be protected or not? Is it in the public interest that this be disclosed or not?”

Peter Fray

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Peter Fray
Editor-in-chief of Crikey