Journalists’ privilege as provided for in s 126H(1) of the Evidence Act 1995 (Cth) depends in part on the journalist having promised an informant not to disclose the informant’s identity. Section 131A(1) extends the provisions of s 126H to pre-trial proceedings. A recent case has emphasised that it is not sufficient for the journalist to simply state that he claims that privilege — rather he must prove that he has the privilege as described in the statutory provisions. In particular, the statutory definitions “informant” and “journalist” in s 126G had created a relationship that must exist between the particular information conveyed and the persons between whom it is communicated and there must be a connection between the promise and the particular information. Moreover, the privilege will be lost if the identity of the informant, as the source of the particular information, is already known or able to be ascertained
The case was Ashby v Cth (No 2)  FCA 766. The second respondent, Peter Slipper, caused a journalist, Mr Lewis, to be issued with a subpoena requiring him to produce all documents evidencing communications in a three-month period between the journalist and the applicant, James Ashby, and between the journalist and three other specified persons relating to allegations made by the applicant against Mr Slipper. As to one document, the journalist, merely referring to a letter from his solicitor that said he was not compellable by force of s 126H to produce that document, argued that all the journalist had to do to invoke journalist privilege was to make a claim for privilege under s 126H. Justice Rares disagreed, saying the new legislation did not relieve Mr Lewis from proving that he had the privilege described in s 126H(1) in the extended circumstances referred to in s 131A(1).
Following that decision, the journalist, Mr Lewis, made his claim for privilege by reading an affidavit by his solicitor that included lengthy details of his contact as a journalist for News Ltd with his informant and other details which went to address the requirements of s 126G and its definitions of “informant”, “journalist” and “news medium”. However, soon after the proceedings had commenced, in a radio interview between Mr Lewis and a broadcaster on 2GB radio, the interviewer had asked Mr Lewis whether he had gone to Mr Ashby or Mr Ashby had gone to him and that Mr Lewis had responded that he did not want to go into detail about that matter adding:
“Let’s just say that we’ve been in contact for some time”.
Mr Slipper argued that because of what was already known, if the informant were Mr Ashby, his identity was already disclosed and, so, Mr Lewis must produce the document. On the other hand, said Mr Slipper, if the informant were not Mr Ashby, there would be no need for Mr Lewis to produce the document. As Rares J stated, in effect, Mr Slipper’s argument amounted to asking Mr Lewis to confirm whether or not his source was Mr Ashby.
In considering the submissions of the parties thus far, Rares J then made the following points:
- The amendments to the Evidence Act had replaced the common law uncertainty surrounding the “newspaper rule” with a prima facie entitlement of the journalist to assert a privilege against disclosing his or her informant or source. However, the statutory definitions “informant” and “journalist” in s 126G had created a relationship that must exist between the particular information conveyed and the persons between whom it is communicated.
- Thus s 126H(1) was not to be construed in such a way that journalists would be able to resist producing, or disclosing to a court, any document or information provided by a person to whom they had once promised confidentiality that disclosed the identity of the source or enables it to be ascertained, regardless of the connection between the promise and the particular information.
- There was evidence that Mr Lewis and Mr Ashby had communicated about articles that Mr Lewis had published shortly before the proceedings commenced, and that those articles might have had some relation to the document that was the subject of the current claim. However, said his Honour: “I am not persuaded that the evidence establishes that Mr Ashby was the source or that the information, whatever it is, in the document is information that is now in the public domain or associates him as having provided it to Mr Lewis. … I am of opinion that if the informant has already identified himself or herself as the journalist’s source of what the journalist published, it would be inconsistent with s 126H(1) to allow the journalist … to assert in court proceedings that he … was not compellable to answer questions or produce documents that would confirm what had already been disclosed. …The privilege is lost if the identity of the informant, as the source of the particular information, is already known or able to be ascertained.”
Justice Rares then concluded:
“For these reasons I am satisfied that the construction of s 126H(1) posited by each party is incorrect. Ultimately, the question whether Mr Lewis is compellable, in the first instance, must be addressed by him in answering the subpoena by applying the correct understanding of the nature and extent of the privilege created by s 126H(1). He has not done so yet. If it be the case that the identity of his informant as the source of the information in the document has already been revealed in the public domain or is ascertainable as having come from the informant, Mr Lewis must answer the subpoena by producing the document. On the other hand, Mr Slipper’s mere speculation that it may be that Mr Ashby is the source cannot be the basis on which the Court would require the subpoena to be answered. Accordingly, it is appropriate to dismiss Mr Lewis’ interlocutory application, but to stand the subpoena over for one week to be answered so that Mr Lewis can readdress the question of whether he can assert the privilege.”
The case will be discussed in more detail at ¶17-566/20 in the CCH reporter “Australian High Court & Federal Court Practice”.
Written by Christine Henchman, Senior Writer.