NSW Journalist Privilege law now in force

The Journalist Privilege amendments to the Evidence Act 1995 (NSW) (the Act) came into force in NSW on 21 June 2011. The changes to the Act are designed to bring New South Wales into line with current legislation in New Zealand, the United Kingdom, and many parts of the United States, where Journalists' confidences are expressly protected at law.

Objectives

According to NSW parliament, the purpose of the provision is to "strengthen the capacity of journalists to maintain the anonymity of their sources by creating a presumption that they may withhold the identity of their sources in proceedings in New South Wales courts." This will allow journalists to report the news and undertake investigative journalism with an added degree of legislative protection.

The provision is designed to operate alongside the Journalists' Code of Ethics, and journalists are expected to inform their sources that they are a journalist before offering any protection of identity. It is also important to remember that the provision only applies where the journalist has specifically promised their source anonymity.

Australian journalists have been jailed and others have had to pay hefty fines for refusing to reveal their sources during court proceedings.

The problem has not been as acute in NSW, where source confidences have been found to be within the scope of "Professional Privileges" in the Act since 2002. However, a journalist could still be found guilty of "disobedience contempt" if they refused to reveal the identity of a source at court. The amended legislation now gives rise to a presumption that protects a journalists' confidential source during legal proceedings.

How do I obtain the privilege?

Obtaining the privilege is unlikely to require a departure from your established dealings with a confidential source.

In order to specifically acquire the legislative protection:

1. You must be sure that your source knows you are a journalist, capable of publishing news stories; and
2. You must specifically promise to keep the identity of your source a secret.

Can the privilege be overturned?

The privilege will only be reversed where upon an application for disclosure of the source, the Court decides that on balance it is in the public interest for the source's identity to be revealed.

In deciding if disclosure is warranted, the court must weigh up the adverse effects that revealing the identity could have, as well as the public interest in maintaining effective news media. 

Whilst a confidential source is a vital part of journalist practice, it remains the case that care needs to be taken in relying upon a source who is not prepared to be identified. The new provisions do give a further level of protection for a journalist and his or her source, but they do not make up any of the ground lost where publication is required to depend on a story without the benefit of a sound witness.

Legislation

The Amendment is found at Part 3.10 of the Act - "Privileges", under the new Division 1C - "Journalists' Privilege", and the relevant sections are 126J; 126K; and 126L. An extract of the relevant provisions is outlined below.