Washington International Law Journal


Devin M. Smith


In late 2006, New Zealand’s Parliament inserted Section 68 into the nation’s Evidence Act 2006, providing for the first time a testimonial privilege specifically protecting journalists from compelled disclosure of their confidential sources. The privilege, commonly referred to as a shield law, has been met with approval from politicians, media commentators, and journalists, both in New Zealand and beyond. While New Zealand’s reporter shield law goes a long way toward extending press freedoms, it ultimately falls short of the country’s historically robust commitment to the free flow of information. Section 68’s most glaring shortcoming is the ease with which a judge can tear down its protections. A judicial determination that the public interest in the disclosure of the source outweighs the public interest in maintaining confidentiality will pierce the shield. Unfortunately, balancing tests such as the one codified in Section 68 have a track record of exploitation, often with fair trial concerns overriding free expression. In that light, Section 68 should be strengthened for three purposes: 1) to reflect the nation’s longstanding commitment to a free and vibrant media, 2) to satisfy the requirements of the New Zealand Bill of Rights Act 1990, and 3) to accord with effective models from other democratic governments. Two relevant sources the country could mine for guidance include United States federal law and the newly enacted shield law in Washington State. New Zealand would be well served by observing not only the protective innovations of the two models, but also their shortcomings. The federal status quo in the U.S., should serve as a cautionary tale, both from policy and legal standpoints. Washington State’s statute on the other hand, strikes an appropriate balance between the public interest in disclosure and the public interest in protecting journalists’ sources.

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