Australia: The statutory journalists privilege: Has it done enough to protect journalists from being obliged to disclose confidential sources?

As explored in our recent article, Can journalists really promise anonymity to their sources? , the legal basis on which a journalist can protect the identity of an 'anonymous' source has been the subject of some significant developments in certain Australian jurisdictions.

In this article, we seek to compare two recent decisions which provide an opportunity to compare the effect of the old 'newspaper rule' against the more modern statutory 'journalists' privilege'. The statutory 'journalists' privilege' now exists in relation to actions brought to compel disclosure of a source's identity made in Victoria, New South Wales, Western Australia, the Australian Capital Territory, and the Federal Court.1


In February 2010, The Age published a number of articles alleging that Ms Helen Liu had made payments to a former defence minister.

The allegations were supported by quotes from documents claiming to be Liu's personal and business records. Liu's case was that the quoted documents were forgeries or had been falsely attributed to her. Accordingly, Liu sought orders for preliminary discovery from the Age to uncover the identity of those said to have provided the records to the Age, in order to commence proceedings for defamation against them.3

In Liu v The Age Company Limited [2012] NSWSC 12, McCallum J allowed the application for preliminary discovery. Justice McCallum cited Cojuangco, where the High Court held that a court will refuse an order for preliminary discovery in respect of a defamatory publication if it appears that the applicant has an effective remedy against the newspaper or journalist without the necessity for making such an order.4

Justice McCallum found that as The Age had pleaded a qualified privilege defence, and that this defence 'might well succeed', the plaintiff may not then have an effective remedy against the defendants (i.e. Liu will have been defamed, but left with no compensation by The Age due to the operation of the defence).5 Accordingly, her Honour found that it was necessary in the interests of justice that The Age give discovery of all documents in its possession which related to the identity of the sources.6

The Age's appeal to the Court of Appeal was dismissed,7 and the High Court (Hayne, Bell and Gageler JJ) refused special leave to appeal on 6 September 2013.8

In 2015, in a further effort to protect the confidence of its sources, The Age sought a stay of the discovery order by seeking to relinquish its qualified privilege defence.9 Importantly, McCallum J was persuaded by this concession and 'abandonment of a substantive right'10 by The Age, and found that by doing so, Liu would have an 'effective remedy'. Her Honour ordered that 'upon the giving by each defendant of an undertaking to the Court not to rely on any defence of qualified privilege ... the decision entered on 2 February 2012 is stayed'.11

Liu successfully appealed this decision to the New South Wales Court of Appeal.

Justice McColl, with whom Beazley and Ward JA agreed, found that the primary judge had failed to take into account a number of factors which were relevant 'to the question on whether the stay application was an abuse of process or should otherwise be disallowed because it offended principles as to permitted litigation of an interlocutory matter and/or case management principles'.12

On the question of whether Liu nevertheless had access to an effective remedy, McColl JA found that despite the abandonment of the qualified privilege defence, there was a 'real risk' of Liu's case failing if 'she was unable to test fully the issue of the forgery of the documents which formed the basis of the matters complained of'.13

The Age again sought special leave to appeal to the High Court, however this was refused by French CJ, Bell J and Keane J on 16 December 2016.


In Madafferi, the plaintiff claimed that he was defamed by imputations conveyed in twelve articles published by The Age.

The articles involved allegations of criminal misconduct and, among other things, alleged that the plaintiff was the head of the mafia.15 Mr Madafferi sought further and better particulars of the defences, including details of the journalists' sources. The Age refused to supply the particulars and relied on s 126K and on the newspaper rule.16

To defeat The Age's reliance on s 126K, Mr Madafferi was required to establish that the public interest in disclosure of the identities of the sources outweighed both:

  • any likely adverse effect of the disclosure on the sources or any other person; and
  • the public interest in the communication of facts and opinions to the public by the news media and the ability of the news media to access sources of facts.17

The principal issues, according to Dixon J, were whether:

  • Mr Madafferi would be denied an effective remedy if The Age was not compelled to reveal its sources; and
  • the public interest in disclosure was affected by the impact of non-disclosure of sources on Mr Madafferi's ability to challenge The Age's qualified privilege defence.18

Justice Dixon found that it was likely that the sources would suffer if an order for disclosure was made,19 and that there was a significant and substantial public interest in the communication of facts and opinions on these particular matters.20

Further, and importantly, Dixon J found that the plaintiff was not significantly disadvantaged by the references to confidential sources in understanding how the defendants will contend at trial that they acted reasonably (when relying on the qualified privilege defence).21

Accordingly, Mr Madafferi's application was dismissed.


It is worth noting that, in contrast to the publications in Liu, the references in the articles to confidential sources in Madafferi were found by Dixon J to be 'not prominent, but a thread in the fabric of the qualified privilege defence, along with identified sources and proven facts, assertions of careful adherence to prudent journalistic practice and the ethical code, and the public interest'.22

However, an analysis of the two decisions makes clear that the statutory journalists' privilege does real work in bolstering the protections that journalists so often give to their sources.

The statutory rule does this in two ways:

  1. By creating a clear 'public interest' test that requires the Court to compare the public interest in disclosure outweighs the public interest in the communication of facts to the news media; and
  2. By clearly imposing the onus of proof in relation to any prospective applicant seeking orders revealing the identity of any given source, which will provide for a practical bar against frivolous or baseless applications.


1See Evidence Act 2008 (Vic) s126K; Evidence Act 1995 (NSW) s126K; Evidence Act 1906 (WA) ss 20A-20J; Evidence Act 2011 (ACT) s126K; Evidence Act 1995 (Cth) s126H.

2 See: Liu v The Age Company [2010] NSWSC 1176; Liu v The Age Company Ltd [2011] NSWSC 53; Liu v The Age Company Limited [2012] NSWSC 12; Age Company Limited and Others v Liu and Another [2013] NSWCA 26; The Age Company Ltd and Ors v Liu and Anor [2013] HCATrans 205; Liu v The Age Company Limited (No 2) [2015] NSWSC 276; Liu v The Age Company Limited [2016] NSWCA 115; The Age Company Pty Ltd and Ors v Liu [2016] HCATrans 306.

3 [2012] NSWSC 12, [3].

4 Ibid, [128].

5 Ibid, [156].

6 Ibid, [216].

7 [2013] NSWCA 26 per Bathurst CJ, Beazley and McColl JJA.

8 [2013] HCATrans 205.

9 [2015] NSWSC 276.

10 Ibid, [79].

11 Ibid, [82].

12 [2016] NSWCA 115, [204].

13 Ibid, [225].

14[2015] VSC 687.

15 Madafferi v The Age Company Limited [2015] VSC 687.

16 Ibid, [4].

17 Ibid, [8].

18 Ibid, [74].

19 Ibid, [118].

20 Ibid, [125].

21 Ibid, [135].

22 Ibid, [133].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions