Who is a Journalist? A Critical Analysis of Australian Statutory Definitions

AuthorRebecca Ananian-Welsh
Published date01 December 2022
Date01 December 2022
Subject MatterARTICLES
Federal Law Review
2022, Vol. 50(4) 449478
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/0067205X221126583
Who is a Journalist? A Critical
Analysis of Australian Statutory
Rebecca Ananian-Welsh*
This article provides the f‌irst comprehensive study of statutory def‌initions of journalistand
journalismin Australian law and proposes a preferred def‌inition of journalist by reference to
statutory aims, bedrock legal principles and broader scholarship. It begins with a review of existing
literature on the meaning of journalistin the modern media landscape, before turning to Australian
law. A qualitative survey of legislation identif‌ied 11 textually different def‌initions of the term
journalistacross 18 separate statutes, and a single def‌inition of journalism. Examination of the
statutory contexts, purposes and framing of these def‌initions reveals they are comprised, broadly,
of six approaches. These approaches are critically analysed against a novel f‌ive-part thematic
framework, with particular attention given to whether journalists should be def‌ined by reference to
ethical codes and responsibilities. The article concludes by identifying a preferred def‌inition of
journalist capable of informing law reform across a wide-variety of areas of law, including pro-
tections for press freedom, journalistic access to information, shield laws and whistleblower
Received 23 August 2021
I Introduction
Media freedom has emerged as a key priority in Australian law reform. Following the June 2019 raids by the
Australian Federal Police (AFP) on News Corp journalist Annika Smethurst and the Sydney headquarters
of the Australian Broadcasting Corporation (ABC), parallel press freedom inquiries were undertaken by
the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and the Senate Committees on
Environment and Communications. Both Inquiries went on to recommend signif‌icant and widespread
reforms, from national harmonisation of shield lawsto enhanced whistleblower protections, the
*Associate Professor, TC Beirne School of Law, Universityof Queensland. The author may be contacted at rebecca.aw@law.
uq.edu.au. The author is indebted to the editors, anonymous reviewers, Associate Professor Johan Lidberg, Professor
Peter Greste and Dr Richard Murray for their valuable input, as well as to Dominic Frost for his exceptional research
assistance. The views here are also informed by discussions with members of the NSW Law Reform CommissionsOpen
Justice Reviewand Queensland Attorney-General, the Hon Shannon Fentiman. The authors research has been supported
by a grant from the Estate of Douglas Slatter and Elizabeth Chambers and a donation from David and Diane Brown.
consideration of journalism-based defences to prosecution and more.
Later that year, the Australian Law
Reform Commission identif‌ied press freedom as one of f‌ive priority areas in the Future of Law Reform.
More recently, in May 2022, the Queensland government followed through on its commitment to
introduce evidentiary shield laws to protect journalistsconf‌idential sources,
and the New South
Wal es ( NSW) Law Reform Commission continued its Open Justice Review, emphasising media
access to courts and tribunals.
More broadly, 21
century reforms haveintroduced specif‌ic measures
to protect press freedom, notably including shield laws (also known as journalistsprivilege)which
assist journalistsin maintaining the conf‌identialityof their sources in legal proceedings.
law reform discussions have raised the prospectof further journalism-based protections not only in
the national security sector but also in police investigations,
and whistleblower laws.
Underlying and complicating these discussions is a thorny def‌initional question. Press freedom
requires the protection of journalists and their sources, as well as certain speech and access rights for
journalists and media organisations; but who is a journalist? And what is journalism?
In practical terms, the meanings of journalistand journalismare constantlyevolving. Gone are
the days of newspaper menand the weekly news cycle. Newsis produced anywhere, at any time
and arguably by a nyone. Bloggers, photojourna lists, freelance workers and a cademic commentators,
in addition to producers, editors, social media managers, in-house legal teams,administrative support
and a plethora of other roles characterise the modern media ecosystem. In this diverse and dynamic
context, it may be that concrete def‌initions are not appropriate, or perhaps even possible.
The fact remains, however, that legal def‌initions of these terms not only exist but occupy an important
place in Australian law and are likely to do so for years to come. This article provides the f‌irst
comprehensive study of statutory def‌initions of journalistand journalismin Australia. A comparative
examination of these def‌initions aims to identify a preferred approach to def‌ining journalistbyreference to
existing scholarship on the modern media landscape, specif‌ic statutory aims and bedrock legal principles
including clarity,legitimacy and the democratic role of a free press. In this way, I aim to inform law reform to
protect press freedom, as well as ongoing efforts to harmonise areas of law (such as shield laws and
whistleblower protections) which rest on such def‌initions and would benef‌it from a national approach.
I begin, in part II, by surveying the existing cross-disciplinary literature on the meaning of
journalistin the modern world. I then turn to the law. This research involved a qualitative survey of
1. Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into the Impact of the
Exercise of Law Enforcementand Intelligence Powers on the Freedom of the Press (Report, August 2020) 36, 82 (PJCIS
Report); Senate Environment and Communications References Committee, Inquiry into Press Freedom (Report, May
2021) 68 (Senate Report).
2. Australian Law Reform Commission, The Future of Law Reform: A Suggested Program of Work 202025 (Report, 2
December 2019).
3. Evidence and Other Legislation Amendment Act 2022 (Qld). The relevant provisions came into force by proclamation,
effective 12 September 2022, and now appear in Evidence Act 1977 (Qld) pt 2 div 2B.
4. New South Wales Law Reform Commission, Open Justice: Court and Tribunal Information: Access, Disclosure and
Publication (Consultation paper 22, December 2020) 215233.
5. Evidence Act 1995 (Cth) s 126K; Evidence Act 1995 (NSW) s 126K; Evidence Act 1929 (SA) s 72B; Evidence (National
Uniform Legislation) Act 2011 (NT) s 127A (NT Evidence Act); Evidence Act 2011(ACT) s 126K; Evidence Act 1906
(WA)s 20I; Evidence Act 2001 (Tas) s 126B; Evidence Act 2008 (Vic) s 126K. For discussion, see Hannah Ryan, Whats
in a Name? Bloggers, Journalism, and Shield Laws[2014] 33(4) Communications Law Bulletin 10, 12; see also Stephen
Odgers, Uniform Evidence Law (Thomson Reuters, 2018) 10781091, 1095, 12001207.
6. See, eg, PJCIS Report (n 1) xx, 36, 82.
7. For discussion, see: Australian Law Reform Commission, The Future of Law Reform (Update, October 2020) 79.
8. PJCIS Report (n 1) 116; Senate Report (n 1) 5175; AJ Brown, Safeguarding our Democracy: Whistleblower Protection
after the Australian Federal Police Raids(Tenterf‌ield Oration, The Henry Parkes Foundation, 26 October 2019) 2. See
also calls for a Media Freedom Act discussed in, eg, Senate Report (n 1) [7.47][7.60].
450 Federal Law Review 50(4)

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