WA’s shield laws pass their first test

Western Australia’s so called “shield laws” recently passed their first test when the Supreme Court upheld an application by West Australian Newspapers Ltd (WAN) in part to set aside a subpoena issued by Gina Rinehart’s company, Hancock Prospecting Pty Ltd (HPPL).¹

WAN, publisher of The West Australian newspaper, successfully argued that the subpoena issued by HPPL should be set aside in part on the ground that it was oppressive and constituted an abuse of process, having regard to the shield laws.²

HPPL, Mrs Rinehart’s four adult children, and others, were parties to an arbitration conducted under the Commercial Arbitration Act 1985 (WA) (Act).  In the course of the arbitration, HPPL caused subpoenas to be issued to journalist Steve Pennells, and The West Australian, his employer.  During the subpoena litigation, HPPL focussed only on the subpoena issued to The West Australian.

During 2012, Mr Pennells wrote articles published in The West Australian which reported on a dispute between Mrs Rinehart and some of her children in relation to the family trust, the affairs of the Rinehart family and some of their business ventures.  In some of the articles, Mr Pennells made reference to conversations he had with Mr John Hancock, Mrs Rinehart’s son.  In broad terms, the subpoena sought production of documents provided to Mr Pennells by Mr Hancock which related to one or other of a list of subjects and recordings or notes of conversations between Mr Pennells and Mr Hancock relating to that list of subjects.      

WAN relied on three grounds in support of its application for orders setting aside the subpoena, namely that:

• the subpoena served no legitimate forensic purpose because the documents sought were not relevant to the matters in issue in the HPPL-Rinehart family private arbitration;

• the subpoena was oppressive or constituted an abuse of process; and    

• section 17(2) of the Act provided a basis to have the subpoena set aside, having regard to the operation of the shield laws, which operated to protect the confidentiality of “protected confidences” and “protected identity information” in a variety of circumstances, particularly in respect of the new journalists’ informants provisions of the Evidence Act 1906 (WA).

Counsel for WAN argued that:

• the shield laws provided protection against the compulsory disclosure of information, including information as to the identity of an informant, which is provided in confidence to a journalist, and the production of the subpoenaed documents would defeat the evident purpose of the shield laws, and would be oppressive or an abuse of process for that reason; and

• WAN could not be compelled to produce the documents sought under the subpoena by virtue of the operation of section 17(2) of the Act, when that provision was read in conjunction with the shield laws. 

Sections 20B to 20F of the Evidence Act 1906 (WA) are concerned with protecting the confidentiality of “protected confidences” and “protected identity information” in a variety of circumstances.  The second “plank” is concerned with whether journalists can be compelled to give evidence of the identity of their informants.

Her Honour found that section 17(2)⁴ confirmed that the grounds on which a subpoena issued in respect of an action in the Court may be set aside will also apply in respect of a subpoena issued by the Court for the purpose of an arbitration. 

The first two grounds of WAN’s case failed.  Her Honour Justice Pritchard found that the materials sought for production by HPPL were relevant.  Therefore, the subpoena was held to serve a legitimate forensic purpose.  Her Honour did not find that the subpoena was oppressive or constituted an abuse of process. 

Relevantly though, her Honour found that as production of the subpoenaed materials would involve the breach of an undertaking of confidentiality given to a journalist’s source or sources, the information in at least some of the documents sought was received on the condition that the identity of the person who provided that information would be kept confidential.  The judge went on to consider whether the evidence before the Court supported the conclusion that neither Mr Pennells nor WAN could be compelled to give that identifying evidence in the arbitration, having regard to the journalists’ protection provisions noted above. 

Having regard to the terms of sections 20I and 20J of the Evidence Act 1906 (WA), the subpoena in question and Mr Pennells’ evidence, her Honour concluded that it was very unlikely that Mr Pennells, or an officer of WAN, would be compelled to give identifying evidence which was contained in the documents sought.  Accepting that the journalists’ protection provisions are capable of applying in an arbitration, her Honour considered the competing public interests: 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.

Her Honour was not satisfied that the former public interest outweighed the latter.  At [165] of the decision, her Honour observed, citing his Honour Justice Randerson in Police v Campbell [2010] 1 NZLR 483, 503 at [97]: 

In my view, the presumptive right to the protection in section 20I should not be departed from lightly, and only after a careful weighing up of the competing considerations.  

Her Honour then considered whether, in the circumstances, it would be oppressive and an abuse of process to require WAN to produce the documents sought under the subpoena, to the extent that they contained identifying evidence.  Finding affirmatively on that point, her Honour said:

To require the production of documents containing the same identifying information under a subpoena would negate the very protection that the Parliament has sought to create.  All a litigant would need to do to avoid the protection in section 20I would be to subpoena a journalist's notes in advance of a trial. 

Lavan Legal comment 

While comment is made in her Honour’s reasons to the effect that matters such as this one are to be dealt with on a case by case basis, the effect of the shield laws is clear.  To permit the subpoena the subject of this litigation would wholly undermine the protection afforded to the identifying evidence under section 20I of the Evidence Act 1906 (WA). 

More broadly, this decision serves as a source of confidence for gutsy whistle blowers and confidential sources in the community who keep things in check. 

The decision was hailed around Australia as a significant win for journalists and their ability to protect sources, and for investigative journalism.⁴