Evidence Amendment (Journalists' Privilege) Act 2011

Administered by Attorney-General's Department

Legislation au C2011A00021 In force Act

Legislation content

 

 

 

 

 

 

Evidence Amendment (Journalists’ Privilege) Act 2011

 

No. 21, 2011

 

 

 

 

 

An Act to amend the Evidence Act 1995, and for related purposes

 

 

 

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendments relating to journalists’ privilege

Evidence Act 1995

Family Law Act 1975

 

 

 

Evidence Amendment (Journalists’ Privilege) Act 2011

No. 21, 2011

 

 

 

An Act to amend the Evidence Act 1995, and for related purposes

[Assented to 12 April 2011]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Evidence Amendment (Journalists’ Privilege) Act 2011.

2  Commencement

  This Act commences on the day after it receives the Royal Assent.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Amendments relating to journalists’ privilege

 

Evidence Act 1995

1  Division 1A of Part 3.10

Repeal the Division, substitute:

Division 1A—Journalists’ privilege

126G  Definitions

 (1) In this Division:

informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium.

journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.

news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.

126H  Protection of journalists’ sources

 (1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.

 (2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:

 (a) any likely adverse effect of the disclosure on the informant or any other person; and

 (b) 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.

 (3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

2  Subsection 131A(1)

Repeal the subsection, substitute:

             (1)  This section applies if, in response to a disclosure requirement, a person claims that they are not compellable to answer any question or produce any document that would disclose the identity of the informant (within the meaning of section 126H) or enable that identity to be ascertained.

          (1A)  A party that seeks disclosure pursuant to a disclosure requirement may apply to the court for an order, under section 126H, that subsection 126H(1) does not apply in relation to the information or document.

3  After section 131A

Insert:

131B  Extended application of Division 1A etc. to all proceedings for Commonwealth offences

  In addition to their application under section 4 to all proceedings in a federal court or an ACT court, Division 1A and section 131A apply to all proceedings in any other Australian court for an offence against a law of the Commonwealth, including proceedings that:

 (a) relate to bail; or

 (b) are interlocutory proceedings or proceedings of a similar kind; or

 (c) are heard in chambers; or

 (d) relate to sentencing.

Family Law Act 1975

4  Subsection 69ZX(4)

Repeal the subsection, substitute:

 (4) In proceedings under this Part in which the court is required to regard the best interests of the child as the paramount consideration:

 (a) subsection 126H(1) of the Evidence Act 1995 does not apply in relation to information that would:

 (i) reveal the identity of a journalist’s source; or

 (ii) enable that identity to be discovered;

  if the court considers that it is in the best interests of the child for the information to be disclosed; and

 (b) the court must not direct, under a law of a State or Territory relating to professional confidential relationship privilege specified in the regulations, that evidence not be adduced if the court considers that adducing the evidence would be in the best interests of the child.

5  Section 100C

Repeal the section.

 

 

 

 

 

 

 

[Member’s statement on introduction made in—

House of Representatives on 18 October 2010

Second reading speech made in—

Senate on 15 November 2010]

(256/10)

 

Overview

The Evidence Amendment (Journalists’ Privilege) Act 2011 was enacted by the Parliament of Australia to address the need for protecting the confidentiality of journalistic sources, thereby ensuring the free flow of information from informants to journalists and ultimately to the public. This Act amends the Evidence Act 1995 to introduce provisions that safeguard the identity of informants who provide information to journalists under the condition that it may be published. The legislation seeks to balance the public interest in protecting journalists' sources with the necessity for disclosure in certain legal proceedings, allowing courts to order the disclosure of a journalist's source only if it is deemed necessary for the interests of justice. Additionally, the Act extends the protection of journalists' sources to all proceedings for Commonwealth offences and modifies the Family Law Act 1975 to accommodate these changes in the context of child-related proceedings.

Scope and Application

The Evidence Amendment (Journalists’ Privilege) Act 2011 amends the Evidence Act 1995 to introduce protections for journalists' sources, thereby safeguarding the identity of informants who provide information to journalists under the expectation that it may be published. This Act applies to journalists engaged and active in news publication and their employers, as well as to any proceedings in federal courts, Australian Capital Territory courts, and other Australian courts for Commonwealth offences. It also extends to family law proceedings under the Family Law Act 1975, where the court may require the disclosure of journalists' sources if it deems such disclosure to be in the best interests of the child. The Act allows courts to override the protection of journalists' sources if the public interest in disclosure outweighs the potential harm to the informant and the importance of maintaining the confidentiality of news sources. This legislation ensures that journalists can maintain the confidentiality of their sources while also providing a mechanism for courts to compel disclosure where necessary in the interests of justice.

Key Provisions

The Evidence Amendment (Journalists’ Privilege) Act 2011 introduces significant changes to the Evidence Act 1995, primarily concerning the protection of journalists' sources. Under the new provisions, journalists are protected from being compelled to disclose the identity of informants if they have promised confidentiality (section 126H). This protection extends to the journalist's employer, ensuring that neither can be forced to reveal the source's identity. However, the court has the authority to override this protection if it determines that the public interest in disclosing the informant's identity outweighs the potential harm to the informant and the broader public interest in news media's ability to access and communicate facts (section 126H(2)). Any such order can be made subject to specific terms and conditions deemed appropriate by the court. In terms of obligations, journalists and their employers must adhere to the new legal framework that protects informants' identities unless a court order mandates otherwise. The Act imposes a duty on journalists to maintain confidentiality regarding their sources, barring any disclosure without a court's explicit permission when the public interest in disclosure is deemed paramount. The Act also mandates that when a journalist or their employer is required to disclose information that might reveal an informant's identity, they must follow the outlined legal processes to seek court intervention if they believe disclosure should not occur (section 131A). Breaches of the provisions regarding journalists' privilege can lead to significant legal consequences. While the Act does not explicitly state penalties for non-compliance, it is implicit that failure to adhere to court orders regarding the disclosure of informants' identities could result in legal action, including potential fines or imprisonment for contempt of court. Additionally, the Act's provisions ensure that journalists and their employers must comply with court directives, and non-compliance could lead to civil or criminal penalties, reflecting the seriousness with which the law treats breaches of these protections.

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Evidence Law
Instrument
Act
Concepts
Definitions & Interpretation
Commencement Provisions
Repeal & Amendment
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.