The promise of confidentiality needed to give rise to journalist privilege: s 126K(1)
32 In Ashby v Commonwealth of Australia (No. 2) [2012] FCA 766; 203 FCR 440, Rares J made the following observations about the assertion and establishment of journalist privilege (replacing in square brackets, for ease of reading and currency, his Honour's references to the then s 126G with references to s 126J, and replacing references to the then s 126H with references to s 126K):
[19] How can the privilege be asserted? First, [s 126J] defines the informant as being the person who gives information to a journalist in the ordinary course of the journalist's work in the expectation that that information may be published in a news medium. Secondly, the section defines the "journalist" as being the person who, in the practice of his or her profession, may be given information by an informant in the expectation that that information may be published in a news medium. Thus, the statutory definitions of "informant" and "journalist" in [s 126J] create a relationship that must exist between the particular information conveyed and the persons between whom it is communicated. The privilege in [s 126K(1)] relates to an anterior promise made by the journalist not to disclose the informant as the journalist's source of that particular information: ie the journalist's promise of confidentiality referred to in [s 126K (1)] is not to disclose the informant's identity, or to enable that identity to be ascertained, in respect of that person as being the source of the particular information.
[20] If [s 126K(1)] were construed in the way in which Mr Lewis asserted, 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 discloses the identity of the source or enables it to be ascertained, regardless of the connection between the promise and the particular information. This argument would extend the privilege to all instances where the journalist had spoken to, say, a politician on a confidential basis, or "off the record", about a particular subject matter, even though they may talk together on a daily basis "on the record" about other matters.
[21] The section is not designed to produce such a result. Its purpose is to ensure that a person who provides particular information can do so knowing that his or her identity as its source can be protected by the journalist because he or she is not compellable to disclose that identity by force of [s 126K(1)]. The privilege exists so that, ordinarily, the journalist cannot be compelled to disclose or identify his or her informant or source of particular information obtained for the purposes of the journalist's work. That privilege is, however, subject to the Court's power created by [s 126K(2)], to override it in certain circumstances.
33 After quoting the second half of the passage of Cojuangco at 354 reproduced above at [24], emphasising the High Court's observation that information "is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information", Rares J then observed (again aligning the provisions referenced with the current numbering in square brackets):
[23] The privilege in [s 126K(1)] changes the emphasis of the balance that the common law achieved in favour of the protection of the sources. But, the new privilege is also intended to protect the free flow of information and the circumstances of its imparting. That privilege was created to meet a well recognised concern for the protection of the confidentiality of journalists' sources of information balanced against the interests of justice in litigation. I am of opinion that it would be unrealistic to construe [s 126K(1)] in a way that gave journalists, in effect, carte blanche to refuse to produce any documents or give evidence that disclosed the identity of a source, or enabled it to be ascertained, merely because the journalist once had had a connection with a person whose identity the journalist had promised not to disclose when imparting particular information.
[24] The purpose of the privilege is to protect the confidentiality of the informant as the journalist's source of the particular information the subject of his or her claim under [s 126K(1)]. That is why it is essential to understand that the definitions in [s 126J] tie the privilege conferred by [s 126K(1)] back to the imparting of the particular information given by the informant and to the occasion of that imparting. The privilege exists so that an informant cannot be identified as having provided that particular information or as having been the source of, in the usual situation, the journalist's story containing that information. There is no indication that [s 126K(1)] intended to provide confidentiality for the identity of the informant as the provider of information, where and at a time that the circumstances of its imparting are not, or are no longer, confidential.
34 In Kumova v Davison [2021] FCA 753, Flick J observed at [49]:
In resolving this further submission advanced on behalf of Mr Kumova, it has been concluded [by Flick J] that:
• the "promise" referred to must be a promise "anterior" to the provision of the information;
• the "promise" must be a promise "not to disclose" the identity of a person who can be characterised as an "informant";
• the "promise" referred to must be an express "promise" in respect to the provision of identifiable information as opposed to any promise that may otherwise be inferred, or any promise that could be implied by reference to (for example) the character of the information being disclosed; and
• on the evidence, Mr Davison has failed to discharge the onus of making out that any such promise was "anterior" to the provision of information - the evidence making good the proposition that there was a "promise" not to disclose the identity of the "corporate advisor" but, at best, being uncertain as to when that "promise" was first made.
35 The first of Flick J's above conclusions in Kumova as to the need for an anterior promise was expressed as seizing upon the observations of Rares J in Ashby at [19]; the second of those conclusions as to the promise being not to disclose the identity of the source was derived by his Honour from the terms of s 126K(1); and the third of those conclusions as to the promise needing to be express was expressed by his Honour as seizing upon the observations of Rares J in Ashby at [20].
36 Flick J then observed by way of important qualification or reservation as to the first of those conclusions as to the need for a promise to be anterior to the giving of information, at [51]:
Some reservation may nevertheless be expressed [by Flick J] as to any conclusion that there must necessarily be in all cases the extraction of a promise prior to the provision of any information at all. That reservation arises from:
• the terms of s 126K(1), the sub-section being silent as to when any promise need be given;
• the definition of the term "informant" and the reference in that definition to the "expectation" of the informant; and/or
• the facts of a particular case.
As to the last consideration, in some cases in the course of a single communication (for example) the very content and subject matter of what is being conveyed may well attract an "expectation" on the part of the person conveying the information and the "journalist" receiving it, that all that is said is being conveyed in the "expectation" that the identity of a person will not be disclosed. It may matter not, in such cases, that the promise not to disclose the person's identity comes mid-way through the exchange of information or even at the very end. A conclusion that the provision of all information has been conveyed pursuant to such a "promise" may well be sufficient to satisfy the terms of s 126K(1). It is, however, unnecessary to resolve the precise point of time during a conversation (or even a series of conversations within a confined timeframe) when a "promise" need be given. In the absence of any necessity to address such circumstances, deference is expressed to the view of Rares J in Ashby.
(emphasis added)
37 I share Flick J's reservations about the views expressed in Ashby as to the promise always having to be anterior to the provision of information in the expectation that it may be published, but cannot so easily sidestep them in this case because the issue is squarely raised by the competing positions.
38 Dr Al Muderis interprets Rares J's observations above in Ashby, as endorsed in a qualified way by Flick J in Kumova, as meaning that:
A "promise" sufficient to satisfy the condition precedent in s 126K(1) must be:
(a) an express promise not to disclose the source's identity, not merely an implicit expectation that his or her identity will not be disclosed;
(b) a promise not to disclose the source's identity as the source of the particular information in question; and
(c) a promise made anterior to the provision of that particular information.
39 I do not accept that the language in s 126K(1) must be read in such a rigid way. Nor am I convinced that this interpretation is necessarily supported in all circumstances by either Ashby or Kumova, noting in any event that judicial observations about the meaning of legislation in one context in terms of facts circumstances and arguments, may not necessarily reflect the legislative intent when applied to a different context. At all times, the primary task is to have regard to the text, context and subject matter of the legislation in question.
40 Section 126K(1) refers to a promise, not to an express promise. Rares J in Ashby does not use the word "express". Words that change the meaning of a provision should not be read into legislation unless truly necessary. The doubtful implied dichotomy between an express promise and a promise conveyed non-expressly by implication and context, or by other means, as advanced by Dr Al Muderis is something of a diversion or distraction. What matters is that the journalist concerned has given to the source, to the satisfaction of the Court, what amounts in all the circumstances to a promise not to disclose the source's identity, of the kind contemplated by s 126K(1).
41 Context is an important factor in interpreting what has been said and determining whether the threshold for the creation of journalist privilege has been met. Ordinary people do not speak in the language of statutes, although I note that a journalist could make life easier for herself or himself simply by expressly saying to the source something to the effect that they promise not to disclose the source's identity without their permission, and perhaps making a short written, signed and dated note of having done so, using an anonymous reference to the source, to facilitate later proof if required. Putting to one side such counsel of almost perfection, the application of s 126K(1) must focus on of what has taken place substance, not mere form or infelicitous use of language. The question to be asked and answered is whether, in all the circumstances, a promise has been given to a source of news information not to disclose their identity, so as to create journalist privilege. What really matters is what it is accepted was conveyed to the source by way of words and associated conduct in context, as may be deposed to by the journalist.
42 The analysis of s 126K(1) by Rares J in Ashby at [19]-[21] and [23]-[24] reproduced above, which resulted in his Honour limiting the scope of journalist privilege by reference to when a promise is given relative to when information is given, is incomplete. As a result, and for the following reasons, I consider that the conclusion his Honour reached in that regard is, to that limited extent, contrary to the terms of s 126K(1) by which I am bound, such that I will not be following it, even though I do not consider that it makes much, if any, material difference on the evidence in this case considered in considerable detail below. The same may be said of the analysis of Flick J in Kumova [49], although at [51] his Honour gives an indication of a different conclusion being available in different circumstances, with which I agree.
43 Sections 126J(1) and 126K(1) may be seen to be addressing two separate aspects of journalist privilege:
(a) The first aspect is the relationship of an informant (source) and journalist as each is defined in s 126J(1), and the source giving to the journalist information in the expectation that it may be published, which is necessary to give rise to the possibility of journalist privilege due to the use of those defined terms in s 126K(1). Being practical, the real content of the expectation is likely to be that part of the information given may be published, as it is unlikely to be verbatim and without any addition or omission.
(b) The second aspect is the giving of a promise by the journalist to the informant (source) not to disclose his or her identity, in context as the source of that information, as provided by the first part of s 126K(1), which is necessary to give rise to the existence of journalist privilege under the second part of s 126K(1).
44 The definitions in s 126J(1) thus require a relationship, however new, tentative, embryonic or fleeting, between an active working journalist and a source of information ("informant" as defined) within which the source provides the journalist with information in the expectation that it (or some part of it) may be published. What is thereby conveyed may conveniently be described as news information. It is only the provision of news information within such a relationship and with that expectation, coupled with the promise not to disclose the identity of the source of that information, that is capable of creating the journalist privilege bestowed by s 126K(1).
45 Once s 126K(1) is engaged:
(a) by the definitions of journalist and informant (source) in s 126J(1) being met; and
(b) by the giving of a promise, by a journalist as defined to a source ("informant" as defined) who has given him or her news information, and been asked not to disclose the source's identity, in accordance with the first part of s 126K,
the second part of s 126K(1) both creates the privilege and in doing so, describes its ambit.
46 In this case, there is no suggestion that Ms Grieve was not a journalist as defined, nor that each of the 13 confidential sources was not an informant as defined. It is the giving of the requisite promise by Ms Grieve to any of those 13 sources that is disputed in relation to the operation of s 126K(1) and thereby the creation of journalist privilege for each is disputed.
47 The ambit of journalist privilege, once established, is wide and is qualified only by the terms of the second part of s 126K(1) itself. Neither the journalist nor the journalist's employer can be compelled to give any answer or produce any document that would disclose the identity of the source or enable that identity to be ascertained. Any such answer to a question and any such document may conveniently be described as identifying information. It is important to emphasise that the privilege not to provide identifying information is able to be claimed by both the journalist who was given the news information by the source, and by the employer of that journalist; cf Ashby at [17] referring incompletely only to the journalist being given this statutory right, being the only person asserting the privilege in that case.
48 The relationship and communication giving rise to the provision of news information is what engages the definitions in s 126J(1) so as to make s 126K(1) apply in the first place. But it is only identifying information that is protected from disclosure. A journalist and employer cannot evoke the privilege to resist providing additional news information provided to the journalist by the source going beyond what was actually published, nor resist answering questions about that news information, provided it does not entail disclosing identifying information. The ambit of the privilege is confined to the terms of the second part of s 126K(1).
49 While news information provided to the journalist may (and generally will) include identifying information, the scope of identifying information is neither confined to, nor exhausted by, the scope of that news information. A journalist and journalist's employer may (and perhaps inevitably will) have other sources of identifying information in relation to a source of news information. The privilege denying compulsory disclosure extends to all identifying information held by a journalist and the employer from any source, obtained at any time. The promise upon which s 126K(1) operates is not upon news information but rather upon identifying information, whether or not that identifying information forms any part of the news information provided by the source.
50 It follows that Rares J in Ashby was correct to say that the relationship between the informant (source) and the journalist created by the definition of those two terms in s 126J(1) must be established for s 126K(1) to apply. But that necessary step does not on its own fully address the scope of the privilege created by s 126K(1) once that circumstance is proven to exist. Once a promise has been made not to reveal the informant's identity in the context of the provision of the news information, then the absence of compulsion on the part of the journalist or the journalist's employer applies to any identifying information, irrespective of when or how it was obtained by the journalist or employer.
51 That said, there must be a nexus between the provision of some news information by the source, and the provision of the promise by the journalist, because it is that combination that engages s 126K(1) and thereby enables journalist privilege to come into existence.
52 Adopting the observations by Flick J in Kumova at [51] reproduced above, while it may be accepted that the identity protected is that of a source of particular information, rather than being at large, that does not necessarily mean that the identity of the source will not also be protected in relation to identifying information provided before the promise is given, provided there is a nexus and a reasonable temporal proximity between the two. The terms of s 126K(1) require no more. If news information is given in the course of a conversation in which a promise is given, that is enough and the identity of the source of that information is prima facie protected, subject to the discretion in s 126K(2). This reflects the practical and human reality in which a conversation between a source and a journalist may develop, and during which the source's requirement for confidentiality as to their identity may emerge. This may extend to identifying information obtained preceding the moment of the giving of the promise, including identifying information from another source.
53 Put another way, even if the promise is not given until after the provision of some news information, following which more news information may be given, the privilege is operative from the time it is given as to the journalist not being compelled to provide any identifying information, or potentially identifying information, irrespective of when that identifying information is provided, or by whom, or when. The express shelter given by s 126K(1) is to deny compellability to answer questions or produce documents that would disclose the identity of the source, or enable that source to be ascertained.
54 The assessment of the evidence relied upon by the respondents to establish the existence of the requisite promise, and thereby the existence of the claimed privilege, is carried out below with the above conclusion as to what is required to be established. It should be noted that Dr Al Muderis' argument that a promise of confidentiality must come prior to any news information being given by a source is only expressly advanced with respect to CS#11 and CS#13. For CS#11, the application of the Ashby test would have produced the same result.