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Evidence Amendment (Journalist
Privilege) Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill amends the Evidence Act 2008 to enact a new journalist privilege.
It seeks to improve protection against disclosure of the identity of persons
who give information to journalists in confidence. If a journalist has
promised not to reveal an informant's identity, the Bill provides that the
journalist (and his or her employer) cannot be compelled to give evidence
that will disclose the informant's identity in any proceedings in a Victorian
court, unless the court determines otherwise in accordance with a specified
public interest test.
The Bill also furthers the implementation of the Uniform Evidence Act in
Victoria by amending the Evidence Act 2008 to include amendments
approved by the Standing Committee of Attorneys-General providing for
mutual recognition of self-incrimination certificates across uniform
jurisdictions and making other minor and technical amendments.
Finally, the Bill amends the Coroners Act 2008 to bring the Coroners Court
into line with all other courts in Victoria by replacing the operation of the
common law privileges with the statutory privileges in Part 3.10 of the
Evidence Act 2008.
571074 1 BILL LA INTRODUCTION 6/6/2012
Clause Notes
Clause 1 sets out the purposes of the Bill, which are--
to amend the Evidence Act 2008 to--
provide for a journalist privilege;
provide for mutual recognition of self-
incrimination certificates issued under provisions
in other jurisdictions which are equivalent to
sections 128 and 128A of the Evidence Act
2008;
implement other technical amendments approved
by the Standing Committee of Attorneys-General
to bring the Evidence Act 2008 into line with the
Model Uniform Evidence Bill;
to amend the Coroners Act 2008 to apply the privileges
in Part 3.10 of the Evidence Act 2008 to investigations
and inquests conducted by the Coroners Court; and
to make necessary consequential and other amendments
to those and other Acts and provide for transitional
arrangements.
Clause 2 provides for the commencement of the Bill. The Bill is to
commence on a day or days to be proclaimed. If not proclaimed
before 1 January 2013, it comes into operation on that day.
Clause 3 inserts a new Division 1C into Part 3.10 of the Evidence Act
2008. Division 1C provides for a new statutory journalist
privilege.
New sections 126J and 126K provide for a new journalist
privilege.
In a democratic society, journalists play an important role in the
provision of information and opinion to the public. To fulfil
this role, journalists require access to sources of information.
The journalists' Code of Ethics requires journalists to be cautious
in promising anonymity to sources, but where a promise is made,
it must be respected. Journalists can face an ethical dilemma if
required by a court to reveal the identity of a source.
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This privilege provides that neither a journalist (nor his or her
employer) can be compelled to give evidence in any court
proceeding that would disclose an informant's identity if the
journalist has promised not to disclose the informant's identity.
However, the privilege is not absolute. The protection will not
apply if, on the application of a party, the court is satisfied that
the public interest in having the informant's identity disclosed
outweighs both any likely adverse effect of the disclosure on the
informant (or on any other person) and the public interest in the
communication of facts and opinion to the public by the news
media (including the ability of the news media to access sources
of facts). The court must engage in a balancing exercise to
determine whether to grant an application to question a journalist
to identify a source.
The new section 126J defines informant, journalist, and news
medium. The privilege is limited to persons who are engaged
in the profession or occupation of journalism. The words
"journalism", "profession" and "occupation" are intended to
have their ordinary meaning.
The definition of informant requires that the information is given
to the journalist in the normal course of the journalist's work in
the expectation that it may be published in a news medium. It is
intended that where a person is engaged in more than one
occupation, where one occupation is a journalist, the information
must have been clearly provided to the journalist in their capacity
as a journalist. Equally, information provided to journalists in
their private capacity is not intended to be covered.
The definition of journalist uses the term "engaged" in the
"profession" or "occupation" of journalism, and is intended to be
slightly broader than "employed" as it can also mean "occupied".
When determining whether a person is a journalist, regard must
be had to a number of indicative factors, including whether the
practice of journalism constitutes a significant proportion of the
person's work, whether the person's journalistic work is regularly
published in a news medium, and whether the person or the
publisher is accountable to comply (through a complaints
process) with recognised journalistic or media professional
standards or codes of practice.
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The Oxford English Dictionary defines "journalism" as "the
business or practice of writing and producing newspapers".
The definition of journalist is intended to include writing and
producing on-line material where that material otherwise comes
within the definition. The definition is not intended to cover
amateur bloggers or users of social networking sites who obtain
and publish information or opinion that may be of public interest.
This approach is supported by the definition of news medium
which covers any medium by which news or observations on the
news are disseminated to the public. This allows for
advancements in technology connected with publication without
the need to revise the definition.
The new section 126K(1) makes it clear that the privilege only
applies in circumstances where the journalist has promised an
informant not to disclose their identity and that promise is made
in the course of the journalist's work. Where this condition is
met, the presumption of protection applies.
The new section 126K(2) allows a party to apply to the court for
the evidence of identity to be given. When dealing with an
application under this provision, the court is required to weigh up
the public interest in disclosure of the identity of the informant
against any likely adverse effect on the informant or any other
person. The court is also required to weigh up the public interest
in disclosure against the public interest in the communication of
facts and opinion to the public by the news media and,
accordingly also, in the ability of the news media to access
sources of facts. If the court determines that the public interest in
disclosure outweighs the opposing interests, the court may order
disclosure of the identity.
In Police v Campbell [2010] 1 NZLR 483, Randerson J, Chief
Judge of the New Zealand High Court, considered a range of
interests when undertaking this balancing exercise, including
the public interest in the investigation and prosecution of crime.
The interests which will be relevant will, of course, vary
according to the case before the court. However, relevant factors
may include the nature of the proceeding (whether it is criminal
or civil), the seriousness of the charge in a criminal proceeding,
the accused's or defendant's right to know all relevant
information to protect his or her right to a fair hearing, the nature
of the information obtained from the informant, the manner in
which it was obtained, and whether the relevant evidence can be
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obtained without compelling the journalist to give evidence.
Ultimately, the court will determine the appropriate balance on
a case-by-case basis.
Clause 4 concerns circumstances where witnesses are required by a court
to give self-incriminating evidence, pursuant to section 128 of the
Evidence Act 2008. Where a witness is required to give self-
incriminating evidence, the court provides the witness with a
certificate which protects the witness from use and derivative use
of that evidence against the person in all proceedings before a
Victorian court.
Clause 4 clarifies the process that the court must follow in
informing the witness whether he or she is required to give
evidence and therefore whether the court will provide the witness
with a certificate.
As more jurisdictions sign on to the Uniform Evidence Act
scheme it becomes more important where certificates are issued
in respect of such evidence, that protection against use and
derivative use of that evidence is provided across jurisdictions.
Clause 4(3) provides for mutual recognition of self-incrimination
certificates across jurisdictions with equivalent provisions.
These amendments implement amendments to the Model
Uniform Evidence Bill approved by the Standing Committee of
Attorneys-General in May 2010.
Clause 5 amends section 128A of the Evidence Act 2008 by providing for
mutual recognition of self-incrimination certificates that have
been issued by courts in other states and territories with
equivalent provisions.
Section 128A concerns circumstances where witnesses have been
ordered by the court, through the making of a disclosure order, to
give evidence in a civil proceeding. The witness has the
opportunity to object to complying with the disclosure order on
the basis of claiming a privilege against self-incrimination.
There is a process in place (the making of a privilege affidavit by
the witness) to work through the privilege issue. The court hears
argument and determines whether any or all of the contents of the
privilege affidavit should be disclosed. If the whole or any part
of the privilege affidavit is disclosed, the court must give the
witness a certificate. The certificate protects the witness from
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use and derivative use of that evidence against the person in all
proceedings before a Victorian court.
These amendments implement amendments to the Model
Uniform Evidence Bill approved by the Standing Committee of
Attorneys-General in May 2010.
Clause 6 amends section 131A of the Evidence Act 2008. Section 131A
sets out a process for the court to follow where a person objects
to giving information or providing a document as required by a
disclosure requirement. The disclosure can include
communication, a document or its contents or other information
of a kind referred to in Division 1 (client legal privilege) or
Division 3 (evidence excluded in the public interest).
The amendment extends the operation of this section to include
the journalist privilege by inserting Division 1C (the journalist
privilege) between Division 1 and 3 in this section of the
Evidence Act 2008.
Clause 7 substitutes "a defendant" with "an accused" in the definition of
admission in Part 1 of the Dictionary at the end of the Evidence
Act 2008.
The Criminal Procedure Amendment (Consequential and
Transitional Provisions) Act 2009 replaced most references to
"defendant" in criminal proceedings across the statute book with
references to "accused". An oversight resulted in one relevant
reference in the Evidence Act 2008 being omitted from these
amendments.
Clause 8 substitutes a new, renumbered, definition of "unavailability of
persons" into clause 4(1) of Part 2 of the Dictionary at the end of
the Evidence Act 2008.
At the meeting of the Standing Committee of Attorneys-General
in May 2010, the Committee approved amendments to the
definition of unavailability of persons. These amendments are to
the same effect as amendments made to the Evidence Act 2008
by the Statute Law Amendment (Evidence Consequential
Provisions) Act 2009. However, they have resulted in the
renumbering of Clause 4 of Part 2 of the Dictionary in the Model
Uniform Evidence Bill.
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The new definition of unavailability of persons refers to
"the person is mentally or physically unable to give the evidence
and it is not reasonably practicable to overcome that inability" at
clause 4(1)(c) instead of at clause 4(1)(g). There is no change to
the substance of the clause, this renumbering simply brings the
clause into uniformity of numbering with the Model Uniform
Evidence Bill.
Clause 9 replaces the reference to "registered relationship" with "registered
domestic relationship" in subclause (6) of clause 11 of Part 2 of
the Dictionary at the end of the Evidence Act 2008.
The Relationships Amendment (Caring Relationships) Act
2009 replaced relevant references to a "registered relationship"
across the statute book with a reference to "registered domestic
relationship". One relevant reference in the Evidence Act 2008
was omitted from these amendments.
Clause 10 provides for general transitional arrangements for the
amendments made by this Bill by inserting a new Part 3 into
Schedule 2 to the Evidence Act 2008 (clauses 17 to 20).
Clause 17 of new Part 3 of Schedule 2 contains a definition of the
2012 Act.
Clause 18 of new Part 3 of Schedule 2 ensures that the
amendments made to the Evidence Act 2008 by clause 3 of this
Bill apply to hearings that commence on or after the day on
which clause 3 commences, whether the promise of
confidentiality was made before, on or after the commencement
of clause 3. Clause 18 further provides that the amendments
made to the Evidence Act 2008 by clause 3 of this Bill do not
apply to part-heard hearings. Specifically, these amendments do
not apply to hearings commenced before the commencement of
clause 3 that continue on or after that commencement, or that
were adjourned before commencement of clause 3 and continue
on or after the commencement of clause 3.
Clause 19 of the new Part 3 of Schedule 2 provides transitional
provisions for the application of the journalist privilege to
disclosure requirements within the meaning of section 131A of
the Evidence Act 2008. Clause 19 clarifies that the journalist
privilege does not apply to a disclosure requirement issued or
ordered before the commencement of clause 3 of this Bill.
However, the journalist privilege does apply to a disclosure
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requirement to give evidence issued before the commencement
day, as long as it is not to give evidence at a part heard hearing; it
is intended that where the journalist privilege applies to a hearing
in which a witness has been required to give evidence by way of
a disclosure requirement which is issued prior to the
commencement of clause 3, the journalist privilege will apply to
that disclosure requirement. This exception is not intended to
affect substantive rights.
Clause 20 of the new Part 3 of Schedule 2 provides transitional
provisions for certificates issued under section 128 or 128A of
the Evidence Act 2008. As this Bill amends sections 128 and
128A of the Evidence Act 2008 (as set out in clause 4 and
clause 5 above), clause 20 ensures that the amendments apply
to certificates issued under provisions equivalent to either
sections 128 or 128A, whether the certificate was issued before,
on or after the commencement of the amending clauses.
Clause 11 applies the privileges in Part 3.10 of the Evidence Act 2008, with
the exception of sections 128, 128A and 131A, to investigations
by a coroner into deaths and fires. It is unnecessary to apply
sections 128 and 128A as the Coroners Act 2008 already
includes a corresponding provision in section 57 of that Act. It is
also unnecessary to apply section 131A in the context of the
Coroners Court as the privileges in Part 3.10 (with the exception
of sections 128 and 128A) will apply to investigations.
Clause 12 applies the privileges in Part 3.10 of the Evidence Act 2008,
with the exception of sections 128, 128A and section 131A, to
inquests. It is unnecessary to apply sections 128 and 128A as
the Coroners Act 2008 already includes a corresponding
provision in section 57 of that Act. It is also unnecessary to
apply section 131A in the context of the Coroners Court as the
privileges in Part 3.10 (with the exception of sections 128
and 128A) will apply to inquests.
Technically, an inquest is part of an investigation by the coroner
under the Coroners Act 2008 and it would have been possible to
rely on clause 11 in order to apply Part 3.10 of the Evidence Act
2008, with the exception of sections 128, 128A and 131A, to
inquests. Clause 12 is included for the abundance of caution in
order to confirm that, subject to clause 13, Part 3.10 of the
Evidence Act 2008 (with the exception of sections 128, 128A
and 131A) applies to inquests.
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Clause 13 provides for transitional arrangements for the amendments made
by this Bill to the Coroners Act 2008.
Subject to the transitional provision regarding the hearing of
inquests and reopening of investigations, Part 3.10 of the
Evidence Act 2008 (with the exception of sections 128, 128A
and 131A) will apply from the date of commencement of
clause 11 to all investigations under the Coroners Act 2008
regardless of whether the investigation commenced before the
commencement of clause 11.
Part 3.10 of the Evidence Act 2008 (with the exception of
sections 128, 128A and 131A) will apply to all inquests under the
Coroners Act 2008 where the hearing of the inquest began on or
after the day that clause 12 comes into force.
If the hearing of an inquest has begun, but was not completed,
before the commencement of clause 12, the Coroners Act 2008
applies as if clause 12 was not in force. This means that
Part 3.10 of the Evidence Act 2008 would not apply to such
inquests.
By way of example, where a coroner made a request for or
obtained a statement, information or document from a person
under section 42 of the Coroners Act 2008 before the
commencement of clauses 11 and 12--
If there was no inquest in relation to the investigation or
any such inquest began on or after the commencement
of clause 12, then--
Part 3.10 of the Evidence Act 2008 (with the
exception of sections 128, 128A and 131A)
would apply to the use of those documents or
information in any investigation after clauses 11
and 12 commence.
Section 58 of the Coroners Act 2008, as in force
before the commencement of clause 12, would
not apply to the investigation after clause 12
commences.
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If there was an inquest in relation to the investigation
that began before the commencement of clause 12,
then--
Part 3.10 of the Evidence Act 2008 would not
apply to the use of those documents or
information.
Section 58 of the Coroners Act 2008, as in force
before the commencement of clause 12, would
apply to the inquest.
Section 77(2) of the Coroners Act 2008 provides that an
"investigation [can] be re-opened". Section 77(1) of the
Coroners Act 2008 provides that this can occur "whether or not
an inquest has been held". If an investigation was reopened after
the commencement of clauses 11 and 12, then--
If an inquest in relation to the investigation had not been
held prior to the re-opening, Part 3.10 of the Evidence
Act 2008 (with the exception of sections 128, 128A
and 131A) would apply to any aspect of the re-opened
investigation.
If an inquest in relation to the investigation had been
held prior to the re-opening, and section 58 of the
Coroners Act 2008, as substituted by clause 12, applied
to that inquest (that is, the hearing of the inquest began
on or after the commencement of clause 12), Part 3.10
of the Evidence Act 2008 (with the exception of
sections 128, 128A and 131) would apply to any aspect
of the re-opened investigation.
If an inquest in relation to the investigation had been held prior
to the re-opening, and section 58 of the Coroners Act 2008, as
substituted by clause 12, did not apply to that inquest (that is,
the hearing of the inquest began before the commencement of
clause 12), the Coroners Act 2008 would apply to the reopened
investigation as if clauses 11 and 12 of the Bill were not in force.
This means that Part 3.10 of the Evidence Act 2008 would not
apply to such an investigation.
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Clause 14 inserts subsection (2) into section 17 of the Evidence
(Miscellaneous Provisions) Act 1958 to exclude the operation
of the journalist privilege in relation to the exercise of the powers
of a commission issued by the Governor in Council or of any
other bodies to which section 17 applies.
Clause 15 removes the reference in section 32AB of the Evidence
(Miscellaneous Provisions) Act 1958 to Division 3 as this
Division has been repealed.
The Statute Law Amendment (Evidence Consequential
Provisions) Act 2009 and the Criminal Procedure Amendment
(Consequential and Transitional Provisions) Act 2009 made
simultaneous amendments to the Evidence (Miscellaneous
Provisions) Act 1958. This simultaneous amendment has
resulted in the need for some Statute Law Revision within the
Evidence (Miscellaneous Provisions) Act 1958.
Clause 16 repeals section 152(1) of the Evidence (Miscellaneous
Provisions) Act 1958, as the substance of this subsection has
been repealed and relocated by Criminal Procedure
Amendment (Consequential and Transitional Provisions)
Act 2009 and the Statute Law Amendment (Evidence
Consequential Provisions) Act 2009.
Clause 17 amends the definition of privilege in section 3(1) of the
Independent Broad-based Anti-corruption Commission Act
2011 to exclude the operation of the journalist privilege.
Clause 18 inserts, for the avoidance of doubt, new section 67A into the
Independent Broad-based Anti-corruption Commission Act
2011 to exclude the operation of the journalist privilege in
relation to the exercise of investigative powers under Part 4 of
that Act.
Clause 19 inserts, for the avoidance of doubt, new section 82ZCA into the
Independent Broad-based Anti-corruption Commission Act
2011 to exclude the operation of the journalist privilege in
relation to an examination or witness summons conducted or
issued under that Act.
Clause 20 amends section 63 of the Major Crime (Investigative Powers)
Act 2004 to exclude the operation of the journalist privilege in
relation to a request by the Special Investigations Monitor to
answer questions, provide information or produce documents or
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things. As a consequence of this amendment, the heading to the
section has also been amended.
Clause 21 amends section 18 of the Ombudsman Act 1973 to exclude the
operation of the journalist privilege.
Clause 22 inserts a new section 69A into Division 4 of Part 4 of the Police
Integrity Act 2008 to exclude the operation of the journalist
privilege. Section 66(4) of the Police Integrity Act 2008 applies
Division 4 to the conduct of examinations by the Director, Police
Integrity.
Clause 23 amends section 50 of the Road Safety Act 1986 to ensure that
for the avoidance of doubt, these proceedings are proceedings
related to sentencing for the purposes of section 4(2) of the
Evidence Act 2008.
The Statute Law Amendment (Evidence Consequential
Provisions) Act 2009 made amendments across the Statute Book
to ensure the operation of the statutory privileges in Part 3.10,
in circumstances where courts are not bound by the rules of
evidence. These amendments included amendments to
sections 50 and 50AAB of the Road Safety Act 1986.
These amendments did not take account of the operation of
section 4 of the Evidence Act 2008. Section 4(2) of the
Evidence Act 2008 states that if a proceeding in a Victorian
court relates to sentencing, the Evidence Act 2008 will only
apply if the court directs that the law of evidence applies to a
proceeding.
Clause 24 amends section 50AAB of the Road Safety Act 1986 to ensure
that for the avoidance of doubt, these proceedings are
proceedings related to sentencing for the purposes of section 4(2)
of the Evidence Act 2008.
The Statute Law Amendment (Evidence Consequential
Provisions) Act 2009 made amendments across the Statute Book
to ensure the operation of the statutory privileges in Part 3.10,
in circumstances where courts are not bound by the rules of
evidence. These amendments included amendments to
sections 50 and 50AAB of the Road Safety Act 1986.
These amendments did not take account of the operation of
section 4 of the Evidence Act 2008. Section 4(2) of the
Evidence Act 2008 states that if a proceeding in a Victorian
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court relates to sentencing, the Evidence Act 2008 will only
apply if the court directs that the law of evidence applies to a
proceeding.
Clause 25 amends the definition of privilege in section 3(1) of the
Victorian Inspectorate Act 2011 to exclude the operation of the
journalist privilege.
Clause 26 inserts, for the avoidance of doubt, new section 33SA into the
Victorian Inspectorate Act 2011 to exclude the operation of the
journalist privilege in relation to the exercise of power under
Part 3 of that Act.
Clause 27 amends the Whistleblowers Protection Act 2001 to exclude the
operation of the journalist privilege in relation to disclosures
made under Part 2 of that Act. This is necessary to ensure the
consistent operation with the Police Integrity Act 2008 and the
Ombudsman Act 1973.
Clause 28 inserts, for the avoidance of doubt, section 56A into the
Whistleblowers Protection Act 2001 to exclude the operation of
the journalist privilege in relation to the exercise of power under
Part 5 of that Act.
Clause 29 repeals the amending Act on 1 January 2014. The repeal of this
Act does not affect the continuing operation of the amendments
made by it (see section 15(1) of the Interpretation of
Legislation Act 1984).
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