Source protection
182 It is appropriate to start, as the applicant did, with the passage from Cojuangco as follows at 354 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ:
The role of the media in collecting and disseminating information to the public does not give rise to a public interest which can be allowed to prevail over the public interest of a litigant in securing a trial of his action on the basis of the relevant and admissible evidence. No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information.
183 It is the last two sentences on which particular reliance was placed. So much may obviously be accepted.
184 However, as the respondents submitted, while noting that this case related to defamation proceedings (being a private remedy that can be invoked by a citizen), the observations immediately following that passage are relevant. Despite the length of the passage, given its significance, it is appropriate that it is repeated in full:
…It stands to reason that the free flow of information would be reinforced, to some extent at least, if the courts were to confer absolute protection on that confidentiality. But this would set such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media.
That is why the courts have refused to accord absolute protection on the confidentiality of the journalist's source of information, whilst at the same time imposing some restraints on the entitlement of a litigant to compel disclosure of the identity of the source. In effect, the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice. So, generally speaking, disclosure will not be compelled at an interlocutory stage of a defamation or related action and even at the trial the court will not compel disclosure unless it is necessary to do justice between the parties.
The liability of the media and of journalists to disclose their sources of information in the interests of justice is itself a valuable sanction which will encourage the media to exercise with due responsibility its great powers which are capable of being abused to the detriment of the individual. The recognition of an immunity from disclosure of sources of information would enable irresponsible persons to shelter behind anonymous, or even fictitious, sources.
In conformity with what we have said, the newspaper rule has been held to have no application to commissions of inquiry: McGuinness; Attorney-General v. Clough (1963) 1 QB 773; Mulholland. In Granada Lord Salmon sought to explain Clough and Mulholland on the ground that disclosure of sources of information was ordered in those cases because the public interest in national security necessarily outweighs the public interest in the free flow of information. No such explanation is available to undermine the authority of this Court's decision in McGuinness. There the Court unanimously held that the refusal of an editor of a newspaper to answer relevant questions before a Royal Commission relating to his sources of information could not be supported and that he had no lawful excuse for refusing to answer questions.
In that case Dixon J. authoritatively explained (at pp 104-105) the nature and effect of the newspaper rule:
"The foundation of the rule is the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matter contained in their journals, and the desirability of protecting those who contribute to their columns from the consequences of unnecessary disclosure of their identity. ... The appellant stands upon these decisions and says that they disclose a development which, in reason and logic, should not stop at discovery, but should supply a general justification for withholding the names of contributors and the sources of information at all stages of any legal proceeding. The answer is that it is not a rule of evidence but a practice of refusing in an action of libel against the publisher, &c., of a newspaper to compel discovery of the name of his informants. It 'rests not on a principle of privilege but on the limitations of discovery', to quote the comment of Professor Wigmore, who expresses himself somewhat strongly against the pretensions to a privilege on the part of journalists (Treatise on Evidence, 2nd ed., vol. 5, sec. 2286, n. 7)."
Two factors of importance emerge from Dixon J.'s comments. First, the rule is one of practice, not of evidence. Secondly, although the rule rests on a recognition of the public interest in the free flow of information, the law gives effect to that recognition of the public interest by exercising a discretion to refuse to order disclosure of sources of information in interlocutory proceedings in defamation and, perhaps, other analogous actions, even though disclosure would be relevant to the issues for trial in the action. The law does not protect that public interest to the extent of conferring an immunity on the media from disclosure of its sources.
185 Those passages put in their proper context the passage relied on by the applicant.
186 The respondents submitted on that basis, that while the "newspaper rule" from Cojuangco applies "when there's a private right that can be invoked and misused", it is not a principle of privilege of broader application and it does not assist in this case.
187 In this context, the respondents also referred to two decisions of the Supreme Court of the United States of America.
188 The first was Branzburg v Hayes et al 408 US 665 (1972) (Branzburg), a decision concerning the First Amendment, which confers an express prohibition on abridging the freedom of the press, where the issue for consideration was the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime. The argument was that "reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future" and that "[t]his asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them": at 682. The Court rejected this claim.
189 As to the argument about the effect of such a decision on the flow of news, the Court observed at 693-694 that:
Estimates of the inhibiting effect of such subpoenas on the willingness of informants to make disclosures to newsmen are widely divergent and to a great extent speculative. It would be difficult to canvass the views of the informants themselves; surveys of reporters on this topic are chiefly opinions of predicted informant behaviour and must be viewed in the light of the professional self-interest of the interviewees.
190 Despite that, the Court observed at 694-695:
Reliance by the press on confidential informants does not mean that all such sources will, in fact, dry up because of the later possible appearance of the newsman before a grand jury. The reporter may never be called and if he objects to testifying, the prosecution may not insist. Also, the relationship of many informants to the press is a symbiotic one which is unlikely to be greatly inhibited by the threat of subpoena: quite often, such informants are members of a minority political or cultural group that relies heavily on the media to propagate its views, publicize its aims, and magnify its exposure to the public.
…
Accepting that fact, however, that an underdetermined number of informants not themselves implicated in crime will nevertheless, for whatever reason, refuse to talk to newsmen if they fear identification by a reporter in an official investigation, we cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future.
191 The Court continued at 700-701:
We do not deal, however, with a governmental institution that has abused its proper function, as a legislative committee does when it "expose[s] for the sake of exposure." Watkins v. United States, 354 U. S. 178, 354 U. S. 200. Nothing in the record indicates that these grand juries were "prob[ing] at will and without relation to existing need." DeGregory v. Attorney General of New Hampshire, 383 U. S. 825, 383 U. S. 829 (1966). Nor did the grand juries attempt to invade protected First Amendment rights by forcing wholesale disclosure of names and organizational affiliations for a purpose that was not germane to the determination of whether crime has been committed, cf. NAACP v. Alabama, 357 U. S. 449 (1958); NAACP v. Button, 371 U. S. 415 (1963); Bates v. Little Rock, 361 U. S. 516 (1960), and the characteristic secrecy of grand jury proceedings is a further protection against the undue invasion of such rights. See Fed.Rule Crim.Proc. 6(e). The investigative power of the grand jury is necessarily broad if its public responsibility is to be adequately discharged. Costello v. United States, 350 U.S. at 350 U. S. 364.
The requirements of those cases, which hold that a State's interest must be "compelling" or "paramount" to justify even an indirect burden on First Amendment rights, are also met here. As we have indicated, the investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen, and it appears to us that calling reporters to give testimony in the manner and for the reasons that other citizens are called "bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification." Bates v. Little Rock, 361 U. S. 525. If the test is that the government "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest," Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539, 372 U. S. 546 (1963), it is quite apparent (1) that the State has the necessary interest in extirpating the traffic in illegal drugs, in forestalling assassination attempts on the President, and in preventing the community from being disrupted by violent disorders endangering both persons and property; and (2) that, based on the stories Branzburg and Caldwell wrote and Pappas' admitted conduct, the grand jury called these reporters as they would others -- because it was likely that they could supply information to help the government determine whether illegal conduct had occurred and, if it had, whether there was sufficient evidence to return an indictment.
192 The second case referred to was Zurcher, Chief of Police of Palo Alto et al v Stanford Daily et al 436 US 547 (1978) (Zurcher) which concerned the Fourth Amendment, which prohibits unreasonable search and seizure without probable cause. The argument was that where a third-party search related to a newspaper, there are additional factors derived from the First Amendment, such that there was "a nearly per se rule forbidding the search warrant and permitting only the subpoena duces tecum". The general submission being "that searches of newspaper offices for evidence of crime reasonably believed to be on the premises will seriously threaten the ability of the press to gather, analyse and disseminate news". Reliance was placed inter alia, on the submission that confidential sources of information and "the processing of news and its dissemination will be chilled by the prospects that searches will disclose internal editorial deliberations": at 564. The Court concluded at 565, applying its earlier decision of Branzburg, that:
Properly administered, the preconditions for a warrant - probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness - should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.
193 As the applicant correctly pointed out the constitutional context between Australia and the United States is very different: see for example, Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328 at [466] per Gordon J. Because the implied freedom of political communication under the Australian Constitution operates solely as a restriction on power and only to the extent necessary to maintain the constitutionally prescribed system of government, the notion of speech as an affirmative value has no role to play: Brown at [459]. However, reliance by the respondents on these authorities was not to suggest that United States constitutional law jurisprudence ought to be applied in Australia (as was sought in Brown) but rather to illustrate the nature, effect and limit of journalist's protection, even where freedom of speech is expressly protected by the First Amendment (which has no role to play in the concept of the implied freedom: Brown at [459]). The cases were relied on as being illustrative of the importance of, and obvious public interest in, the investigation of criminal offences.
194 The respondents also referred in the Australian context to Nicholls v Director of Public Prosecutions for South Australia [1993] SASC 3964; (1993) 61 SASR 31 (Nicholls) and Independent Commission Against Corruption v Cornwall (1993) 38 NSWLR 207 (Cornwall).
195 In Nicholls the Court considered the issue of contempt where the contemptor was a journalist and where reliance was placed by the journalist on the Australian Journalists Association Code of Ethics, relevantly clause 3, which provided that "in all circumstances they shall respect all confidences received in the course of their calling…". I note that this is relevantly in the same terms as the current clause three of the MEAA Code. Justice Perry observed at [45] "that the most that the courts have been prepared to do is to express the rule in negative terms, that is to say, to act on the principle that disclosure of a source will not be required unless it is necessary in the interests of justice". His Honour recited a passage from Cojuangco (which is encompassed in the passage referred to above at [184]), and concluded that notwithstanding "the apparent belief on the part of the appellant that the Code of Ethics operated to reinforce what he regarded as an absolute obligation", he doubted that the Code of Ethics could have been intended to operate in the way suggested, as to do so would be to elevate the preservation of confidences received by a journalist in the course of their calling to a position, above the law of the land, which it does not have: at [46]. As his Honour observed, the courts have refused to recognise an absolute privilege in favour of journalists.
196 This decision was applied in Cornwell, where a journalist refused to answer a question before the ICAC on the basis of the MEAA Code of Ethics. As Abadee J concluded at 240, relying on the conclusion of Perry J above in Nicholls, the Code is subject to the law of the land. Justice Abadee concluded that the Code did not provide a "reasonable excuse" within the meaning of the Independent Commission Against Corruption Act 1988 (NSW) and therefore, was not a defence to a charge of contempt.
197 As the applicant submitted in reply, these two decisions were before Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 (Lange) and before the introduction of s 126K. However, these decisions, amongst other things, relate to the interpretation of journalists' codes of ethics which are relied on in this case. There is nothing in Lange or s 126K which relevantly alters that. There is no absolute privilege and the journalists' code of conduct in the present case cannot elevate it to that status; the codes must be read subject to the law of the land. I note also in relation to Cornwall, as discussed below, s 126K does not apply to non-curial proceedings, and so would have no application in the circumstances of a compulsory examination considered in that case.
198 While the protection of journalists' sources has been given statutory recognition and some protection in s 126K of the Evidence Act, there is an issue between the parties as to the reach of that provision. The applicant contended that it applies to search warrants, relying primarily on the Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) (ALRC Report), in particular on Recommendation 14-1, which recommended that the client legal privilege provisions of the Uniform Evidence Acts should apply to any compulsory process for disclosure including non-curial contexts including search warrants and notices to produce documents. From that the applicant argued that language from the recommendation is included in s 126K, and therefore, it should be taken to extend to production of documents in the execution of search warrants.
199 The respondents took issue with that proposition, relying on the text of the relevant provisions, its legislative history and the extrinsic material. The respondents' submission must be accepted.
200 Section 126K is in the following terms:
126K Journalist privilege relating to identity of informant
(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.
201 It follows that there is no absolute protection as a Court may make an order to compel disclosure of the identity of the informant in the identified circumstances.
202 The extent of the scope of s 126K is addressed in s 131A:
131A Extended application of Division 1C
(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 126K) 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 126K, that subsection 126K(1) does not apply in relation to the information or document.
(2) In this section, disclosure requirement means a court process or court order that requires the disclosure of information or a document and includes the following:
(a) a summons or subpoena to produce documents or give evidence;
(b) pre‑trial discovery;
(c) non‑party discovery;
(d) interrogatories;
(e) a notice to produce;
(f) a request to produce a document under Division 1 of Part 4.6.
203 A number of observations can be made.
204 First, the text of s 126K makes plain that a journalist is not compellable to "answer any question" or "produce any document" that would disclose the identity of an informant. Neither of those concepts describe what occurs in the execution of a search warrant. "Producing" a document applies to subpoenas and notices to produce, not a search warrant which authorises the search for and seizure of evidential material. Nor can a search warrant be used to compel an answer to a question.
205 Second, s 131A provides that the extended application of s 126K applies only in relation to a "disclosure requirement" which is defined as "a court process or court order that requires disclosure of information or a document" and includes the matters enumerated therein at ss (2)(a)-(f); that list does not include search warrants. For the reasons in the paragraph above, the concepts described in that definition do not describe what occurs under a search warrant. The identified matters in ss (a)-(f) all relate to processes where court proceedings are necessarily already on foot, and s 126K makes clear that the public interest is to be considered in light of those proceedings.
206 Third, the history of the provision and the relevant extrinsic material also demonstrates that s 126K does not apply to search warrants. The first iteration of the protection was in the Evidence Amendment (Journalists' Privilege) Act 2007 (Cth). That Act inserted into the Evidence Act Division 1A entitled "professional confidential relationship privilege", which relevantly included s 126A which applied to a "protected confidence" which was defined as "…a communication made by a person in confidence to a journalist", and provided that the court had a discretion to direct that the evidence not be adduced if adducing it would disclose a protected confidence, the contents of a document recording a protected confidence or protected identity information: s 126B. The provisions set out the relevant considerations in exercising that discretion, including the probative value of the evidence and the nature and gravity of the relevant offence: s 126B. It specified circumstances where the privilege was lost: s 126C (consent of protected confider), s 126D (misconduct). Section 131A, the extended application provision was enacted, which enumerated the processes to which the provision applied, which were all court orders. Search warrants were not included. The relevant extrinsic material, the Explanatory Memorandum, Evidence Amendment (Journalists Privilege) Bill 2007 (Cth), referring to s 131A stated "[t]he privilege does not apply to investigatory and other non-curial processes such as search warrants or notices to produce issued by investigatory agencies": at [19].
207 The provisions were amended in 2011 by the Evidence Amendment (Journalists' Privilege) Act 2011 (Cth), which repealed Division 1A and substituted a new Division 1A entitled "Journalists' privilege". Section 126H became the provision relating to the protection of journalists' sources, and was in the same terms as the current s 126K. Section 131A(1) was also amended, but ss (2), which enumerated the processes to which s 126H applied, remained unchanged. The amendment to s 131A(1) had the effect of extending the application of s 126H to pre-trial proceedings: Explanatory Memorandum, Evidence Amendment (Journalists' Privilege) Bill 2010 (Cth) at [28]. Search warrants were not included.
208 It is important to note that the 2011 amendment occurred after Victoria had included search warrants in s 131A(2) of its version of the Evidence Act. It is the only Uniform Evidence Act that contains this provision. The Commonwealth clearly made a deliberate choice not to do so.
209 The further amendment to the provisions by the Civil Law and Justice (Omnibus Amendments) Act 2015, renumbered the provision from s 126H to s 126K.
210 As is apparent, contrary to the applicant's contention, the ALRC Report recommendation was not accepted in full. In any event, the ALRC Report was not the relevant extrinsic material, in light of the statements in the Explanatory Memoranda. I note also in this context that the applicant's reliance on the first reading speech of Andrew Wilkie, submitting that it relied "on the whole of that speech as informing the logic underlying the manner in which [s 126K] has been drafted," does not assist. That Mr Wilkie referred to the particular importance of defence information and the intention that the amendments would "foster freedom of the press and better access to information for the Australian public," does not overcome the plain terms of the legislation, or the accompanying relevant Explanatory Memoranda.
211 I note also the applicant's submission (only made in its written reply in opening and not advanced orally) that its construction of s 126K is consistent with the absence of reference to search warrants in s 131A as that provision only applies to court processes, is incorrect. The submission is inconsistent with the plain text of the provision, which is headed, "extended application of Division 1C". The provision is not about court processes, but rather specifies the context in which s 126K applies. Again, this submission is inconsistent with the Explanatory Memoranda to the relevant provisions.
212 The submission also belies the applicant's repeated reliance on s 126K of the Evidence Act 2008 (Vic), in which its s 131A extends the application of s 126K to search warrants.
213 This submission is also inconsistent with the argument it advanced in its opening written submission where, recognising that in contrast to the Victorian provision, s 131A did not expressly extend to search warrants, it submitted that s 126K impliedly extends to search warrants, based on comments of Wilson J in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 (Baker v Campbell) at 95-96. The submission based on the proposition that legal professional privilege is an analogous concept, is misplaced. Legal professional privilege is a substantive rule of law and not a rule of evidence: Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 93 ALJR 967 (Glencore) at [21] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ, whereas s 126K is a discretionary rule of evidence created by the Evidence Act. Legal professional privilege "is not merely an aspect of curial procedure or a mere rule of evidence but a substantive right founded upon a matter of public interest": Glencore at [21], citing Baker v Campbell. The applicant's submission is that it is necessary to have a source protection condition in the warrant (as with legal professional privilege) because otherwise any future claim for protection under s 126K, if proceedings are later instituted, would be ineffective. Even leaving aside the different nature of legal professional privilege, that submission cannot overcome the terms of s 126K.
214 The applicant's submission elevates source protection to a position which, on the current state of the law, it does not have.
215 Two matters flow from that discussion as to source protection.
216 First, for the reasons above, s 126K of the Commonwealth Evidence Act does not apply to search warrants. As drafted, the provision also does not apply to other investigative non-curial processes, for example, compulsory examinations.
217 I note also that the applicant did not submit that Cojuangco could provide a basis for its claim for source protection over the four documents which are still in issue in this case.
218 Second, in so far as source protection does exist, the analysis addresses the suggestion that any rules about protecting the confidentiality of a source are absolute. While the applicant repeatedly stated it was not arguing for a position of immunity for journalists, an absolute position, underlies its argument. It is based on the risk that revealing the identity of sources reduces the willingness to provide information. So much was obvious from the applicant's reliance on Professor Ricketson's evidence, where he states inter alia that once a journalist makes an agreement to keep the identity of a source confidential, the MEAA Code requires them to keep it, and that means refusing to reveal the source's identity including non-compliance with any court order even if that means going to goal. That reading of the MEAA Code is inconsistent with authority. The MEAA Code cannot apply in absolute terms. Nor, where it applies, does s 126K.