The Commonwealth Government has passed amendments to the Evidence Act 1995 (Cth) said to be designed to protect journalists who do not wish to reveal confidential sources. But while any protection is welcome, these laws do not go far enough and are not clear enough.

There is a debate to be had about whether greater protection should be offered by the law to journalists protecting their sources. I don't intend to deal with that debate in this article (although I am firmly of the view that it should). But it is important to understand these changes for what they are - protection in name only. They do not, in practice, add anything to the position at common law.

How does it work?

The Evidence Act now provides judges hearing Commonwealth matters with a discretion to permit a journalist not to reveal a confidential source. In addition to this discretion, there is a requirement that the Court direct that the evidence of a source does not have to be revealed if it is satisfied that harm might be caused to the source and that harm outweighs the desirability of the evidence being given. Harm is defined broadly. For example, it includes physical and financial harm, stress shame or fear. But surprisingly, the term "journalist" is not defined.

Is the protection afforded to journalists sufficient?

Parliament has seen fit to provide a protection to journalists. The question here it seems, is whether the legislation actually serves its purpose. Does it in reality provide any greater protection than that already afforded indirectly by the common law? The answer is no.

There are really two things a court must be satisfied of before the Evidence Act kicks in to require the Court to protect the journalist.

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Harm to a source

First, the Court must be satisfied that harm will be caused to the source if he or she is revealed. It is fair to say that this is nearly always going to be the case. Journalists don't offer to keep their sources confidential for fun. Nor do they risk going to jail for kicks. They offer this protection because it is important to a particular source and it sends a message to other would-be sources that they can trust journalists. The fame of the Watergate case and the protection given by Washington Post journalists Bob Woodward and Carl Bernstein to their confidential source dubbed 'Deep Throat' means that just about everyone understands that journalists do not reveal their sources. Every time a journalist goes to jail for refusing to reveal a source (thankfully not too often), people are reminded of this. It is often this reassurance that encourages people to come forward to reveal important information and expose wrongdoing.

On the other side of the fence, sources do not usually ask to remain anonymous for no reason. Even if the reason is just a feeling of embarrassment or stress, it will probably be captured by the broad definition of harm.

So if a journalist has offered to keep his or her source confidential, and that source wants to remain anonymous, then it is almost certain that the court will find that harm would occur if the source is revealed.

Harm to the sourcee outweighing the desirability of the evidence being given

But the protection for journalists seems to falter at the second hurdle.

The court must be satisfied that the harm to the source will not be outweighed by the desirability of the evidence (revealing the source's identity) being given. There are a number of factors set out in the legislation which the court must consider in deciding whether to exercise its discretion or the circumstances in which the requirement not to reveal the source's evidence would operate.

Those factors do not include the general public interest in encouraging other potential sources to come forward. There is no legislative statement as to the importance of that message being given to the public. There should be. This is because what is likely to happen is that a particular judge sitting in a particular case will be faced with a very real injustice if a source is not revealed. In the same way that journalists don't protect their sources just for fun, most parties in court cases do not try to discover the identity of a journalist's source unless it is important to them and their case.

Parliament has not indicated to the judges that the public interest generally served by journalists not revealing their sources is something that can outweigh an injustice in a particular case. And so that judge will almost certainly have to find that the source should be revealed (which will probably just result in the journalist refusing and putting the judge in another unenviable situation).

The case involving Herald Sun journalists Michael Harvey and Gerard McManus demonstrates the point. I acted for Michael and Gerard in that case. They both refused to reveal their source or sources for a story they'd written about a federal government policy change. They did so with respect to the court and with much class. And they suffered the consequences, including criminal convictions. I doubt that even if this legislation been in place at the time that it would have helped Michael and Gerard. The judge in that case would still have had the 'injustice' of not having information vital to the case available to him. I do not imagine that the judge would have considered the possibility of encouraging other sources to come forward in future cases, together with the possibility that the source might suffer, as sufficient to outweigh the obvious problems for the case if the source were not revealed. Once the judge concluded that the information was relevant and necessary for the determination of the case before him, this legislation would become effectively useless. The High Court in John Fairfax & Sons v Cojuangco (1988) 165 CLR 346 at 13 put it succinctly when it said:

"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"

Does the legislation add anything to the current situation?

The legislation really doesn't seem to add anything to the position at common law. In Cojuangco the High Court noted the general importance of journalists not having to reveal their sources and effectively concluded that if justice could be done without requiring a journalist to reveal their source, then a court should not require that disclosure.

And that is basically the point - if a judge considers the source's identity is important in a particular case, this legislation provides no assistance. It will, in practice, make no difference beyond that already provided by the common law.

Justin Quill is a director of KellyHazellQuill Lawyers and represents a number of media organisations