Ruddock said that neither Commonwealth legislation nor the common law contains a privilege to protect journalists’ sources. This is an issue that the Australian Law Reform Commission (ALRC) is considering in a review of the Uniform Evidence Act.

The lawyer for the two journalists, Justin Quill, has welcomed the move, and told ABC radio that the Attorney-General considers it important “to inform the court of the potential changes to the law that may be coming into effect in relation to journalists’ sources”.

Quill, a media lawyer at Corrs Chambers Westgarth, said journalists should be given much greater protection in such situations. On ABC radio, he referred to an ALRC submission he sent on behalf of media organisations including News Limited, Fairfax, the commercial television stations and the ABC.

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“[The submission] says that a judge should not require a journalist to disclose his or her source unless it is necessary to avoid one of three things,” Quill said. “The first is that our national security may be endangered, so if our national security’s in danger, fair enough. If the safety of a person is in danger, or … a serious crime is about to occur — not if it has occurred, but if it is about to occur.

“So in those three situations, the law would provide a judge with the ability to weigh them up and say I think it’s in the public interest that this journalist be required to disclose his or her source,” he said.

The ALRC has suggested that a limited privilege for confidential communications be introduced into Commonwealth law, Ruddock said. This would be similar to that applicable in New South Wales.

The outcome of the report, to be presented by the ALRC to the Attorney-General in December this year, and the probability of subsequent legislation “might be relevant to whether the imprisonment is an appropriate penalty under the current circumstances”, said Ruddock.

The Court has been advised of the Government’s intention, Ruddock said, “because this is a matter in which we believe the Commonwealth has an interest. However, it would be a matter for the Chief Judge to decide whether leave is granted”, he said.