JUDGES will be given discretion not to jail journalists who refuse to divulge their sources under new laws to be introduced today by federal Attorney-General Robert McClelland.
THE laws will force judges to consider the public interest in a free press and the impact on a journalist's reputation of revealing their source, when deciding whether to order a journalist to take the witness stand.
This will be weighed against other factors, including proper administration of justice.
But media experts said the changes were a "Clayton's protection" that would do little to stop journalists from being jailed for refusing to reveal a source.
This is because the law will not create a presumption in favour of protecting a journalist's source.
Foreshadowing the changes yesterday, Mr McClelland said the laws would protect journalists.
"It's going to be a matter for the discretion of the court," he told Sky News. "Certainly it will be far more likely that journalists will be able to protect their source."
The Australian can reveal that the protection will be extended to all cases in which a person has been charged with a commonwealth offence, even if it is being heard in a state court.
The protection will be available even if the information was leaked illegally by a public servant.
Previously, if information was obtained illegally, all protection was removed automatically. Now this will be just one factor for a judge to consider.
In addition, national security will be one factor for a judge to consider, rather than the most important factor.
Media lawyer Justin Quill, from Melbourne firm Kelly Hazell Quill, said he was disappointed with the changes. "Any step forward is a good step, but there needs to be a presumption in favour of the protection of journalists' sources," he said.
"Without that presumption, the protection is really no protection at all - it's a Clayton's protection."
He said this was because the onus was on journalists to prove their source should be protected - rather than putting the person seeking the information to prove it was necessary in the interests of justice.
"In any area of law, the person who bears the onus has a tough hurdle to get over," he said.
Mr Quill acted for Herald Sun journalists Gerard McManus and Michael Harvey, who were fined $7000 each by the County Court after pleading guilty to contempt charges.
They had declined to name the source of a story during a hearing for public servant Desmond Kelly, accused of leaking information. Mr Kelly was eventually acquitted.
Press Council chairman Ken McKinnon said the new shield laws would give little comfort to people such as McManus and Harvey.
"It is so weak that it won't have any positive effect at all," Professor McKinnon said. "The presumption of the court should be that journalists are not called upon or put in the dock in a vulnerable position in which they're required to reveal their sources unless it is absolutely essential in the interests of justice."
But News Limited, publisher of The Australian, welcomed the changes.
"The proposed reforms will give judges the flexibility they need to make sensible decisions about whether revealing the identity of a source is or isn't in the public interest," a spokeswoman said.
Source: The Australian