(Mar. 9, 2011) On March 3, 2011, the Australian Senate passed the Evidence Amendment (Journalists' Privilege) Bill 2010, which will have the effect of reversing the current presumption in the federal evidence law that favors the disclosure of journalists' confidential sources. (Evidence Amendment (Journalists' Privilege) Bill 2010, Parliament of Australia website (last visited Mar. 8, 2011); see generally Matthew Tracey, Journalist Shield Laws, 29(2) COMMUNICATIONS LAW BULLETIN 12 (2010).)
In passing the bill, the Senate agreed to amendments, proposed by a Senator from the Australian Greens party, that extend the coverage of the shield law to bloggers, citizen journalists, and independent media organizations. (Press Release, Sen. Scott Ludlam, Greens Hail New Federal Journalist Shield Laws (Mar. 3, 2011).) These amendments were aimed at making the law “technology neutral,” with the definition of journalist including anyone “engaged and active” in the publication of news in any medium. (Chris Merritt, Shield Law Now Goes Beyond the Media to Cover Everyone, THE AUSTRALIAN (Mar. 7, 2011).) However, a journalist would need to have promised a source that his or her identity would remain confidential in order to claim the protection of the law.
The bill was introduced in the Parliament in October 2010 by two independent legislators, but it gained the support of the Australian government as well as Opposition party members. (Lanai Vasek, Universal Support for New Shield Laws, THE AUSTRALIAN (Oct. 26, 2010); Government Will Back Journalist Shield Laws, ABC NEWS (Sept. 28, 2010).) The bill was modeled on the journalist privilege provisions contained in the New Zealand Evidence Act 2006 and creates a presumption that a journalist cannot be compelled to reveal a source unless a court finds there to be an overriding public interest in disclosure. (Chris Merritt, Labour to Back Independents' Bill on Journalists' Sources, THE AUSTRALIAN (Sept. 28, 2010).)
Similar to shield laws in other countries, the provisions in the bill will mean that “it is up to those parties who want to force a journalist to reveal their source to prove that the public interest in disclosing the source outweighs the likely harm to the source and the public interest in the information being provided [to the media] in the first place.” (The Parliament of the Commonwealth of Australia, Evidence Amendment (Journalists' Privilege) Bill 2010: Explanatory Memorandum, at 1, Parliament of Australia website (last visited Mar. 8, 2011).)
The new shield law will only apply in proceedings involving federal laws. Several Australian states are considering adopting shield laws and may move to finalize their positions following the enactment of the federal law. (Debbie Guest & Chris Merritt, West Australia's Attorney-General Rejects Federal Moves to Protect Sources, PERTH NOW (Oct. 1, 2010); Debbie Guest, Porter to Extend Shield Laws to Investigative Bodies in WA, THE AUSTRALIAN (Feb. 28, 2011).)