Hon Christian Porter BA(Hons) BEc LLB(UWA) MSc(Dist)(LSE) MLA

Hon Christian Porter BA(Hons) BEc LLB(UWA) MSc(Dist)(LSE) MLA

Former Treasurer; Attorney General

    Shield laws strike the right balance

    20/10/2011 12:00 AM
    • Journalists and other professionals to be given unprecedented protections from being required to reveal their sources
    • Whistle-blowers will be able to disclose information anonymously if their public sector employer does not act satisfactorily on the information
    • Whistle-blowers will be able to disclose information lawfully to a journalist if other avenues have been unsuccessful
    New legislation to be introduced today into State Parliament will create landmark legal protection in Western Australia for certain professionals, including journalists, who deal with confidential information.

    Attorney General Christian Porter said the legislation sought to strike a reasonable balance between the protection of confidential information and reasonable disclosure in the public interest.

    “For the first time in WA, journalists will be able to work in the knowledge that the standing legal position is they are protected from having to disclose the identity of their sources and other confidential information they obtain in the course of their professional work,” Mr Porter said.

    “The starting presumption in all matters involving journalists will be that the identity of sources can be withheld by the journalist without the threat of contempt of court arising.

    “The new Evidence and Public Interest Disclosure Amendment Legislation Bill 2011 also fulfils another election commitment for the State Government by protecting confidential communication made in the course of professional relationships generally, such as communications an accountant has with a client or a doctor with a patient or a journalist.”

    The Attorney General said the legislation had been developed during a detailed consultation period to take into account many of the comments received regarding this issue from the media and the judiciary.

    Protection for Journalists
    The Bill creates a special level of protection specifically for journalists which stops them from being compelled to give evidence in court or to State Parliament when they have promised anomnity to their source.

    The Bill also sets out certain specific circumstances where the court may decide to overturn the standing presumption of non-disclosure.  These include where the information was provided unlawfully when lawful means were open, or where the information provided involved a serious breach of a person’s privacy.
    “The Bill serves the public interest of preserving individual citizens’ privacy and allowing the investigation of illegal conduct like phone hacking while recognising that journalists play a vital role in ensuring the free flow of facts and information to the public,” Mr Porter said.

    “Two issues were clear from our consultation - one was that journalists wanted a statutory presumption in favour of the protections applying, and the second was that journalists favoured the protection extending beyond court hearings to inquiries conducted by bodies such as the Corruption and Crime Commission. This legislation delivers both these features.” 

    The Attorney General said that journalists were also concerned that the protection from having to reveal a source should not be automatically lost each and every time some form of misconduct or criminality may have occurred on the part of the journalist or source in the transmission of the information.

    “To accommodate this position, the legislation will hold that misconduct by either a journalist or source in the transmission of the information will not automatically remove the protection from the journalist or source,” he said.

    “Rather, misconduct will be one of several matters to which the court will have regard to if it is asked to determine whether in any particular case the public interest in having the source’s identity made public outweighs the adverse effect on the journalist or their source.

    “We have sought to give the maximum protection possible to journalists and their sources without creating a situation where, if a News of the World phone hacking-type situation ever developed that courts and tribunals would be prevented from properly dealing with such matters.”

    Protections for other professionals
    Aside from the special protections afforded to journalists the Bill also introduces three key reforms which amend the Evidence Act 1906 and the Public Interest Disclosure Act 2003. The first area of reform expands on some of the existing protections under the Evidence Act by establishing professional confidential relationship protection (or PCRP) provisions which allow certain professionals to refuse to answer questions about their clients or source in court.

    The protection given by these provisions allows the court the ability to use its discretion to decide whether the protection should apply, where the interests in confidentiality outweigh the interests in the evidence being given.

    Other protections designed to allow free flow of information
    Finally, the legislation expands the manner in which whistle-blowers can make disclosures in the public interest under the Public Interest Disclosure Act.

    A whistle-blower who fears reprisals from their employer will be able to apply to the Supreme Court for an order to stop or remedy any detrimental action taken against them. They can also ask to be relocated.

    Whistle-blowers will also be able to disclose their information anonymously and to lawfully provide it to journalists if their employer does not act satisfactorily on the information given.

    “Having received the views of both the judiciary and the media industry regarding this issue, there are strong and competing views as to the necessity and desirability of providing protections to journalists,” Mr Porter said.

    “We consider these laws strike the appropriate balance between the public interest in a free media and the need to ensure courts have access to all relevant information.”

           Fact File
    • Extra protections applicable to journalists only include:
      - A presumption that if a journalist has promised a source not to disclose their identity that neither the journalist or source will be compelled to reveal that identity
      - The protection of this presumption will not be automatically lost if there has been misconduct in the transmission of the information from source to journalist
      - Unlike the situation at Commonwealth law, the WA presumption will extend beyond court proceedings to all judicial proceedings, including tribunals, certain inquiries and CCC hearings
    Attorney General's office - 9222 8800