Shield Laws in Action

Gina Rinehart has lost the legal battle in Western Australia to have information, in regards to a family dispute, subpoenaed.

Journalist Steve Penell from West Australia Newspapers wrote an article detailing the alleged dispute over 18 months ago. He cited confidential sources and the mining magnate sought to have the identity of these sources revealed, in a bid to sue for defamation.

This was the first time that Shield Laws have been property tested in Australia since they were introduced in 2011 under the Evidence Amendment (Journalist’s Privilege) Act.

The laws aim to protect the identity of journalistic confidential sources and give reporters the right to refuse testimony.

Before the 2011 amendment the courts could order for documents and sources to be revealed as they saw fit according to the case at hand. This often led to journalists being charged with contempt of court as they refused to do so, as ethically in the industry it is strongly discouraged. This was demonstrated in a string of cases including the landmark case of R v Harvey and McManus.

Janine Pritchard, the presiding judge on this case, set a strong precedent for the laws to be construed strictly. She stated that the presumption of journalistic privilege should “not be departed from lightly”.

For this reason the case has been hailed a win for professional journalists and is predicted to set the standard of the laws, not only in Western Australia but also across the nation.

However, the privilege outlined in the new Shield Laws is still not absolute and can be revoked by the courts if they can suffice the public interest test. This test questions whether the disclosure of sources is necessary for the administration of justice or whether it is more important to allow for the journalist to honour their promise of confidentiality.

It is important to remember that the Shield Laws do not provide a loophole that enables journalists to avoid giving evidence in court. The fundamental right to a fair trial will prevail in cases where the confidential information forms key evidence.

Despite this the laws do appear to create a fair compromise between journalistic ethics and the fair administration of justice.

To read more about the effect of the new laws visit this site.

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