The Half-Hearted Protection of Journalistss Sources: Judicial Interpretation of Australiaas Shield Laws

Abstract

Since 2011, several Australian jurisdictions have introduced ‘shield laws’ featuring a rebuttable presumption that journalists will not be compellable to give evidence that would disclose the identity of a confidential source. The first relevant case decided under these laws suggested that they will be more favourable to journalists than previous common law and statutory positions. However, celebration is premature. Australian judges have always been reluctant to exempt journalists from compelled disclosure of their sources, despite the fundamental ethical obligation journalists have to keep source identity and information confidential. Courts have only slowly and hesitantly recognised a public interest supporting that obligation. One important reason is that, unlike European and English courts, Australian courts have failed to consider the free speech implications of disclosure. As long as this judicial predisposition persists, Australian shield laws may provide only a weak protection for journalists.