Evidence - South Australia - Journalists' Protection

The Evidence (Journalists) Amendment Act 2018 (SA) commenced on 9 August 2018. The Act provides, through the new Part 8A, that where an informant gives information to a journalist in the expectation that the information may be published in a news medium and the informant reasonably expected that the informant's identity would be kept confidential (whether because of an express undertaking given by the journalist or otherwise) then the person does not incur any criminal or civil liability for failing or refusing to answer any question, or to produce any document or other material, that may directly or indirectly disclose the identity of the informant (s. 72B(1)).

However, a court may make an order that s.72B(1) does not apply if it is satisfied in the circumstances that the public interest in disclosing the identity of the informant (a) outweighs any likely adverse effect of the disclosure on the informant or any other person; and (b) outweighs the public interest relating to the communication of information by the news media generally; and (c) outweighs the need of the news media to be able to access information held by potential informants.

The amendment applies to any proceedings before a court which have been commenced before or after the commencement of Part 8A. The South Australian amendment broadly reflects the position in the Evidence Amendment (Journalists’ Privilege) Act 2011 (Cth) which is applicable in Commonwealth courts.

Nigel Wilson