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Evidence Amendment (Journalist Privilege) Act 2012

No. 52 of 2012

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 2

PART 2—AMENDMENTS TO THE EVIDENCE ACT 2008 3

3 New Division 1C of Part 3.10 inserted 3

Division 1C—Journalist privilege 3

126J Definitions 3126K Journalist privilege relating to identity of informant 4

4 Privilege in respect of self-incrimination in other proceedings 55 Privilege in respect of self-incrimination—exception for certain

orders etc. 66 Application of Part to preliminary proceedings of courts 77 Definition of admission 78 Unavailability of persons 79 References to de facto partners 810 New Part 3 of Schedule 2 inserted 8

PART 3—TRANSITIONAL PROVISIONS FOR EVIDENCE AMENDMENT (JOURNALIST PRIVILEGE) ACT 2012 8

17 Definitions 818 Application of Division 1C of Part 3.10 819 Application of Division 1C of Part 3.10 to disclosure

requirements 920 Certificate given to a witness before commencement 10

PART 3—AMENDMENTS TO THE CORONERS ACT 2008 11

11 New section inserted after section 42 1142A Privileges in relation to investigations 11

12 Privileges in relation to inquests 1158 Privileges in relation to inquests 11

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13 New clause 21 of Schedule 1 to the Coroners Act 2008 inserted 1121 Transitional provisions—Evidence Amendment

(Journalist Privilege) Act 2012 11

PART 4—AMENDMENTS TO THE EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958 13

14 Power to send for witnesses and documents 1315 Guiding principles 1316 Regulations 13

PART 5—AMENDMENTS TO THE INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION ACT 2011 14

17 Definition of privilege 1418 New section inserted after section 67 14

67A Journalist privilege does not apply 1419 New section inserted after section 82ZC 14

82ZCA Journalist privilege does not apply 14

PART 6—AMENDMENTS TO THE MAJOR CRIME (INVESTIGATIVE POWERS) ACT 2004 15

20 Application of privileges and provision of information, documents 15

PART 7—AMENDMENTS TO THE OMBUDSMAN ACT 1973 16

21 Evidence 16

PART 8—AMENDMENTS TO THE POLICE INTEGRITY ACT 2008 17

22 New section inserted after section 69 1769A Journalist privilege does not apply 17

PART 9—AMENDMENTS TO THE ROAD SAFETY ACT 1986 18

23 Provisions about cancellation and disqualification 1824 When an alcohol interlock condition can be removed 18

PART 10—AMENDMENTS TO THE VICTORIAN INSPECTORATE ACT 2011 19

25 Definition of privilege 1926 New section inserted after section 33S 19

33SA Journalist privilege does not apply 19

PART 11—AMENDMENTS TO THE WHISTLEBLOWERS PROTECTION ACT 2001 20



PART 12—REPEAL 21

29 Repeal of amending Act 21═══════════════

ENDNOTES 22

Evidence Amendment (Journalist Privilege) Act 2012†

No. 52 of 2012

[Assented to 18 September 2012]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The purposes of this Act are—

(a) to amend the Evidence Act 2008—

(i) to provide for a journalist privilege; and

(ii) to provide for mutual recognition of self-incrimination certificates issued under provisions in other jurisdictions which are equivalent to sections 128

Victoria

1

and 128A of the Evidence Act 2008; and

(iii) to implement other technical amendments approved by the Standing Committee of Attorneys-General to bring the Evidence Act 2008 into line with the Model Uniform Evidence Bill; and

(b) to amend the Coroners Act 2008 to apply the privileges set out in Part 3.10 of the Evidence Act 2008 to investigations and inquests; and

(c) to make minor amendments to the Evidence (Miscellaneous Provisions) Act 1958; and

(d) to make necessary consequential and other amendments to those and other Acts and provide for transitional arrangements.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 January 2013, it comes into operation on that day.

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Section Page

2

s. 2

PART 2—AMENDMENTS TO THE EVIDENCE ACT 2008

3 New Division 1C of Part 3.10 inserteds. 3

See:Act No.47/2008.Reprint No. 1as at1 January 2011and amendingAct No.29/2011.LawToday:www.legislation.vic.gov.au

After Division 1B of Part 3.10 of the Evidence Act 2008 insert—

"Division 1C—Journalist privilege

126J Definitions

(1) In this Division—

informant means a person who gives information to a journalist in the normal course of the journalist's work in the expectation that the information may be published in a news medium;

journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information, comment, opinion or analysis in a news medium;

news medium means a medium for the dissemination to the public or a section of the public of news and observations on news.

(2) For the purpose of the definition of journalist, in determining if a person is engaged in the profession or occupation of

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Evidence Amendment (Journalist Privilege) Act 2012No. 52 of 2012

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journalism regard must be had to the following factors—

(a) whether a significant proportion of the person's professional activity involves—

(i) the practice of collecting and preparing information having the character of news or current affairs; or

(ii) commenting or providing opinion on or analysis of news or current affairs—

for dissemination in a news medium;

(b) whether information, having the character of news or current affairs, collected and prepared by the person is regularly published in a news medium;

(c) whether the person's comments or opinion on or analysis of news or current affairs is regularly published in a news medium;

(d) whether, in respect of the publication of—

(i) any information collected or prepared by the person; or

(ii) any comment or opinion on or analysis of news or current affairs by the person—

the person or the publisher of the information, comment, opinion or analysis is accountable to comply (through a complaints process) with recognised journalistic or media professional standards or codes of practice.

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126K Journalist privilege relating to identity of informant

(1) If a journalist, in the course of the journalist's work, has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable to give evidence 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 the proceeding, the public interest in the disclosure 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.

(3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.".

4 Privilege in respect of self-incrimination in other proceedings

(1) In section 128(3) of the Evidence Act 2008—

(a) for "If" substitute "Subject to subsection (4), if"; and

(b) after "court" (where secondly occurring) insert "is not to require the witness to give the evidence, and".

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(2) In section 128(7)(b) of the Evidence Act 2008, before "any" insert "evidence of".

(3) After section 128(11) of the Evidence Act 2008 insert—

"(12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by a person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.

(13) For the purposes of subsection (12), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection.

(14) Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth.".

(4) For note 3 at the foot of section 128 of the Evidence Act 2008 substitute—"3 Section 128(12) to (14) of the Commonwealth Act

gives effect to certificates in relation to self-incriminating evidence under this Act in proceedings in federal and ACT courts and in prosecutions for Commonwealth and ACT offences.".

5 Privilege in respect of self-incrimination—exception for certain orders etc.

After section 128A(10) of the Evidence Act 2008 insert—

"(11) If a person has been given a certificate under a prescribed State or Territory provision in

s. 5Part 12—Repeal


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respect of information of a kind referred to in subsection (6)(a), the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.

(12) For the purposes of subsection (11), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection.

(13) Subsection (11) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth.".

6 Application of Part to preliminary proceedings of courts

In section 131A(1)(a) of the Evidence Act 2008, for "Division 1 or 3" substitute "Division 1, 1C or 3".

7 Definition of admission

In Part 1 of the Dictionary to the Evidence Act 2008, in the definition of admission, in paragraph (a), for "a defendant" substitute "an accused".

8 Unavailability of persons

For clause 4(1) of Part 2 of the Dictionary to the Evidence Act 2008 substitute—

"(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—

(a) the person is dead; or



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(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or

(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or

(d) it would be unlawful for the person to give the evidence; or

(e) a provision of this Act prohibits the evidence being given; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or

(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.".

9 References to de facto partners

In clause 11(6) of Part 2 of the Dictionary to the Evidence Act 2008, for "registered relationship" substitute "registered domestic relationship".

10 New Part 3 of Schedule 2 inserted

After Part 2 of Schedule 2 to the Evidence Act 2008 insert—

"PART 3—TRANSITIONAL PROVISIONS FOR EVIDENCE AMENDMENT (JOURNALIST

PRIVILEGE) ACT 2012

17 Definitions



8

In this Part—

2012 Act means the Evidence Amendment (Journalist Privilege) Act 2012.

18 Application of Division 1C of Part 3.10

(1) Except as otherwise provided by this Schedule, the amendment made to Part 3.10 of this Act by section 3 of the 2012 Act applies to any proceeding commenced on or after the commencement of that section.

(2) Except as otherwise provided by this Schedule, in the case of any proceeding that commenced before the commencement of section 3 of the 2012 Act, the amendment made to Part 3.10 of this Act by that section applies to that part of the proceeding that takes place on or after the commencement of that section, other than any hearing in the proceeding that commenced before the commencement of that section and—

(a) continued on or after the commencement of that section; or

(b) was adjourned until the commencement of that section or a day after the commencement of that section.

19 Application of Division 1C of Part 3.10 to disclosure requirements

(1) The amendment made to Part 3.10 of this Act by section 3 of the 2012 Act does not apply in respect of—

(a) a disclosure requirement issued or ordered before the commencement of section 3 of that Act; or

(b) a disclosure requirement issued or ordered on or after the commencement



9

of section 3 of that Act to give evidence or produce documents at a hearing to which clause 18(2)(a) or (b) applies.

(2) Despite subclause (1)(a), the amendment made to Part 3.10 of this Act by section 3 of the 2012 Act applies to a disclosure requirement issued or ordered before the commencement of section 3 of that Act if the evidence is to be given at a hearing to which the amendment made by section 3 of that Act applies.

(3) In this section, disclosure requirement has the same meaning as in section 131A.

20 Certificate given to a witness before commencement

(1) The amendment made to section 128 by section 4(3) and (4) of the 2012 Act has effect on and from the commencement of that section with respect to the giving of a certificate under a prescribed State or Territory provision that has occurred before the commencement of that section.

(2) The amendment made to section 128A by section 5 of the 2012 Act has effect on and from the commencement of that section with respect to the giving of a certificate under a prescribed State or Territory provision that has occurred before the commencement of that section.".

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10

PART 3—AMENDMENTS TO THE CORONERS ACT 2008

11 New section inserted after section 42s. 11

See:Act No.77/2008.Reprint No. 1as at21 July 2011.LawToday:www.legislation.vic.gov.au

After section 42 of the Coroners Act 2008 insert—

"42A Privileges in relation to investigations

Part 3.10 of the Evidence Act 2008 (except sections 128, 128A and 131A) applies to investigations of deaths and fires.".

12 Privileges in relation to inquests

For section 58 of the Coroners Act 2008 substitute—

"58 Privileges in relation to inquests

Part 3.10 of the Evidence Act 2008 (except sections 128, 128A and 131A) applies to inquests.".

13 New clause 21 of Schedule 1 to the Coroners Act 2008 inserted

After clause 20 of Schedule 1 to the Coroners Act 2008 insert—

"21 Transitional provisions—Evidence Amendment (Journalist Privilege) Act 2012

(1) If an investigation has commenced but is not completed immediately before the commencement of section 11 of the 2012

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Act, the amendment made to this Act by that section applies to the investigation on and from that commencement.

(2) If the hearing of an inquest has commenced but is not completed immediately before the commencement of section 12 of the 2012 Act, this Act applies to the hearing of the inquest on and from that commencement as if the amendment made by that section were not in force.

(3) If an investigation is re-opened under section 77(2) after the commencement of sections 11 and 12 of the 2012 Act, and there has previously been an inquest in relation to the investigation to which section 58 as substituted by section 12 of the 2012 Act did not apply, this Act applies to the re-opened investigation as if sections 11 and 12 of the 2012 Act were not in force.

(4) In this clause, 2012 Act means the Evidence Amendment (Journalist Privilege) Act 2012.".

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PART 4—AMENDMENTS TO THE EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1958

14 Power to send for witnesses and documentss. 14

See:Act No.6246.Reprint No. 17as at1 January 2010and amendingAct Nos7/2010, 13/2010, 53/2010, 36/2011, 65/2011, 4/2012 and 19/2012.LawToday:www.legislation.vic.gov.au

At the end of section 17 of the Evidence (Miscellaneous Provisions) Act 1958 insert—

"(2) A person is not, in relation to a commission, entitled to the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008.".

15 Guiding principles

In section 32AB of the Evidence (Miscellaneous Provisions) Act 1958 omit "Division 3 and".

16 Regulations

Section 152(1) of the Evidence (Miscellaneous Provisions) Act 1958 is repealed.

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Part 12—Repeal


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PART 5—AMENDMENTS TO THE INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION ACT 2011

17 Definition of privileges. 17

See:Act No.66/2011 and amendingAct Nos66/2011, 70/2011, 13/2012 and 28/2012.Statute Book:www.legislation.vic.gov.au

In paragraph (a) the definition of privilege in section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011, after "court or tribunal" insert ", other than the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008".

18 New section inserted after section 67

After section 67 of the Independent Broad-based Anti-corruption Commission Act 2011 insert—

"67A Journalist privilege does not apply

A person is not, in relation to the exercise of a power under this Part, entitled to the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008.".

19 New section inserted after section 82ZC

After section 82ZC of the Independent Broad-based Anti-corruption Commission Act 2011 insert—

Part 12—Repeal


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"82ZCA Journalist privilege does not apply

A person is not, in relation to an examination or witness summons, entitled to the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008.".

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PART 6—AMENDMENTS TO THE MAJOR CRIME (INVESTIGATIVE POWERS) ACT 2004

20 Application of privileges and provision of information, documents

s. 20See:Act No.79/2004.Reprint No. 2as at2 April 2009and amendingAct Nos3/2009, 69/2009, 87/2009, 67/2011, 72/2011 and 13/2012.LawToday:www.legislation.vic.gov.au

(1) For the heading to section 63 of the Major Crime (Investigative Powers) Act 2004 substitute—

"Application of privileges and provision of information, documents".

(2) After section 63(2) of the Major Crime (Investigative Powers) Act 2004 insert—

"(2A) A person is not, in relation to a requirement by the Special Investigations Monitor to answer a question, provide information or produce a document or other thing, entitled to the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008.".

(3) In section 63(3) of the Major Crime (Investigative Powers) Act 2004, for "subsections (1) and (2)" substitute "subsections (1), (2) and (2A)".

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PART 7—AMENDMENTS TO THE OMBUDSMAN ACT 1973

21 Evidences. 21

See:Act No.8414.Reprint No. 8as at7 March 2008and amendingAct Nos65/2007, 34/2008, 27/2009, 69/2009, 29/2011, 66/2011, 70/2011, 72/2011 and 6/2012.LawToday:www.legislation.vic.gov.au

(1) After section 18(4) of the Ombudsman Act 1973 insert—

"(4A) A person is not, in relation to an investigation under this Act, entitled to the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008.".

(2) In section 18(5) of the Ombudsman Act 1973, for "subsections (3) and (4)" substitute "subsections (3), (4) and (4A)".

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PART 8—AMENDMENTS TO THE POLICE INTEGRITY ACT 2008


See:Act No.34/2008and amendingAct Nos34/2008, 60/2008, 25/2009, 55/2009, 69/2009, 13/2010, 29/2011 and 13/2012.LawToday:www.legislation.vic.gov.au

After section 69 of the Police Integrity Act 2008 insert—


A person is not, in relation to an examination or a witness summons, entitled to the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008.".

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PART 9—AMENDMENTS TO THE ROAD SAFETY ACT 1986

23 Provisions about cancellation and disqualifications. 23

See:Act No.127/1986.Reprint No. 14as at27 April 2012and amendingAct Nos19/1991, 63/2010, 32/2011, 34/2011, 65/2011 and 21/2012.LawToday:www.legislation.vic.gov.au

After section 50(5A) of the Road Safety Act 1986 insert—

"(5B) To avoid doubt, a proceeding under subsection (5) is a proceeding that relates to sentencing for the purposes of section 4(2) of the Evidence Act 2008.".

24 When an alcohol interlock condition can be removed

After section 50AAB(7) of the Road Safety Act 1986 insert—

"(8) To avoid doubt, a proceeding under subsection (6) is a proceeding that relates to sentencing for the purposes of section 4(2) of the Evidence Act 2008.".

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Part 12—Repeal


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Part 12—Repeal


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PART 10—AMENDMENTS TO THE VICTORIAN INSPECTORATE ACT 2011

25 Definition of privileges. 25

See:Act No.70/2011and amendingAct Nos70/2011, 19/2012 and 28/2012.Statute Book:www.legislation.vic.gov.au

In paragraph (a) of the definition of privilege in section 3(1) of the Victorian Inspectorate Act 2011, after "court or tribunal" insert ", other than the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008".

26 New section inserted after section 33S

After section 33S of the Victorian Inspectorate Act 2011 insert—

"33SA Journalist privilege does not apply


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Part 12—Repeal


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PART 11—AMENDMENTS TO THE WHISTLEBLOWERS PROTECTION ACT 2001


See:Act No.36/2001.Reprint No. 2as at15 January 2009and amendingAct Nos36/2001, 69/2009, 66/2011, 70/2011 and 72/2011.LawToday:www.legislation.vic.gov.au

After section 10 of the Whistleblowers Protection Act 2001 insert—


A person is not, in relation to a disclosure made under this Part, entitled to the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008.".

28 New section inserted after section 56

After section 56 of the Whistleblowers Protection Act 2001 insert—



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Part 12—Repeal


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Part 12—Repeal


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PART 12—REPEAL

29 Repeal of amending Act

This Act is repealed on 1 January 2014.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes


26

† Minister's second reading speech—

Legislative Assembly: 7 June 2012

Legislative Council: 30 August 2012

The long title for the Bill for this Act was "A Bill for an Act to amend the Evidence Act 2008 to provide for journalist privilege and other matters, to make consequential and other amendments to the Coroners Act 2008, the Evidence (Miscellaneous Provisions) Act 1958 and other Acts and for other purposes."

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