Confidential sources are central to investigative journalism and to much defamation litigation about it. A plaintiff who says a story was false usually wants to know who said it; the publisher wants to protect the person who did. Australian law resolves that tension through statutory shield laws, an older rule of practice, and the way the defamation defences treat unnamed sources.
Why sources matter in a defamation case
Defamation defences that protect serious journalism turn on what the publisher knew and did before publishing. The public interest defence in s 29A of the Defamation Act 2005 requires the defendant to prove that the matter concerned an issue of public interest and that the defendant reasonably believed publication was in the public interest, and the court may consider the sources of the information including their integrity, whether there was good reason to keep a source’s identity confidential, whether the person’s side of the story was sought and any other steps taken to verify the information.1 Statutory qualified privilege under s 30 requires the defendant’s conduct to be reasonable, with verification steps again among the relevant factors.2
The identity and reliability of a source are therefore often directly in issue. The law’s answer is that the publisher is generally not compelled to reveal who the source was, but must accept the evidentiary disadvantage of relying on a source whose credibility the court cannot directly assess.
Shield laws: the statutory journalist privilege
Journalist privilege, often called a shield law, is found in the evidence legislation of each jurisdiction rather than the Defamation Acts. The Commonwealth version, which applies in the Federal Court, is s 126K of the Evidence Act 1995 (Cth): if a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.3 A court may order that the privilege does not apply if satisfied, having regard to the issues to be determined, that the public interest in disclosure outweighs any likely adverse effect on the informant or any other person and the public interest in the communication of facts and opinion to the public by the news media and in the ability of the news media to access sources.3 Section 131A extends the privilege to pre trial processes including subpoenas, discovery, interrogatories and notices to produce.4
Three features of the privilege matter in practice.
First, it depends on a promise. The Commonwealth, New South Wales, Victorian, ACT and Northern Territory provisions all require that the journalist promised the informant confidentiality.3 5 6 7 8 Queensland’s provisions require the same.9 South Australia is broader: it is enough that the informant reasonably expected confidentiality, whether or not there was an express undertaking.10
Second, who counts as a journalist differs. The Commonwealth and ACT define a journalist as a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that it may be published in a news medium, a definition broad enough to include bloggers and freelancers.3 7 New South Wales and South Australia use the narrower formulation of a person engaged in the profession or occupation of journalism.5 10 Queensland requires a person engaged and active in gathering and assessing information about matters of public interest and preparing it for publication, and lets the court consider whether the person does so regularly and complies with a recognised code of practice.9
Third, it is a presumption, not an immunity. The party seeking disclosure bears the onus of showing that the public interest in disclosure outweighs the competing interests. In Madafferi v The Age Company Ltd, the Supreme Court of Victoria set out a seven step approach to that balancing exercise and refused to order journalists to identify their sources, accepting evidence that the sources would be genuinely fearful for their safety and that disclosure would end the journalist’s career as an investigative reporter.11
| Jurisdiction | Provision | Notes |
|---|---|---|
| Commonwealth (Federal Court) | Evidence Act 1995 (Cth) ss 126J, 126K, 131A | Broad definition of journalist; extends to pre trial disclosure requirements3 4 |
| New South Wales | Evidence Act 1995 (NSW) ss 126J to 126L, 131A | Profession or occupation of journalism; applies to information given before or after commencement; extends to pre trial processes5 |
| Victoria | Evidence Act 2008 (Vic) ss 126J, 126K | Promise made in the course of the journalist’s work; applied to preliminary discovery in Madafferi6 11 |
| Queensland | Evidence Act 1977 (Qld) Part 2 Division 2B, ss 14Q to 14ZG | Commenced 12 September 2022; applies in courts of record including QCAT; extended to Crime and Corruption Commission proceedings by a 2024 Act that commenced on 31 August 2025; detailed list of factors in s 14Y(2)9 12 |
| Western Australia | Evidence Act 1906 (WA) ss 20G to 20M | Journalist privilege in s 20I, alongside a broader professional confidential relationship protection13 |
| South Australia | Evidence Act 1929 (SA) Part 8A, s 72B | No express promise required; informant’s reasonable expectation of confidentiality suffices10 |
| Tasmania | Evidence Act 2001 (Tas) Division 1A, s 126B | No journalist specific privilege; general professional confidential relationship protection at the court’s discretion14 |
| ACT | Evidence Act 2011 (ACT) ss 126J to 126L | Mirrors the Commonwealth provision7 |
| Northern Territory | Evidence (National Uniform Legislation) Act 2011 (NT) s 127A | Applies to all proceedings before courts and tribunals; process based definition of journalist8 |
The newspaper rule
Before shield laws, the main protection for sources in defamation litigation was the newspaper rule. In John Fairfax & Sons Ltd v Cojuangco, the High Court described it as a rule of practice, not of evidence, under which courts exercise a discretion to refuse to order disclosure of sources in interlocutory proceedings in defamation and analogous actions, even though disclosure would be relevant at trial; it does not confer an immunity on the media, and disclosure may be ordered where special circumstances make it necessary in the interests of justice.15 Even at trial, the court will not compel disclosure unless it is necessary to do justice between the parties.15
The rule continues to operate alongside the statutory privilege. In Liu v The Age Company Limited, the New South Wales Court of Appeal in 2016 confirmed that the newspaper rule is a discretionary rule of practice that informs, rather than determines, applications for preliminary discovery, and that the media have no public interest immunity from disclosing sources where disclosure is necessary in the interests of justice.16 It also noted that s 126K, which came into force on 21 June 2011 and so did not apply to Ms Liu’s preliminary discovery application, will affect how the newspaper rule operates at trial.16
Preliminary discovery against publishers
A plaintiff who wants to sue the source rather than, or as well as, the publisher can apply for preliminary discovery under the rules of court to identify the prospective defendant. In Cojuangco, the High Court held that the applicant must show that the order is necessary in the interests of justice, which ordinarily means necessary to provide an effective remedy, and that an order will be refused where the applicant already has an effective remedy against the newspaper or journalist.15
Liu v The Age shows how that test plays out. Ms Liu obtained an order in 2012 requiring The Age and three journalists to give discovery of documents relating to the identity of the sources for articles alleging she had made payments to a federal minister. After an unsuccessful appeal and special leave application, The Age offered an undertaking not to rely on qualified privilege and persuaded the trial judge to stay the order. The Court of Appeal set the stay aside, holding that whether a plaintiff has an effective remedy depends not only on the damages recoverable from the publisher but on the difficulty of proving the case without disclosure; Ms Liu needed to confront the sources to show that the documents they supplied were forgeries and to prove aggravated damages.16
The result in Madafferi was different. The plaintiff failed on the s 126K application and also on preliminary discovery, for three reasons: he had not shown reasonable cause to believe he had a claim against any particular source, his proposed defamation claims appeared to be statute barred, and journalist privilege applied to preliminary discovery through s 131A.11 Where the digital intermediary reforms have been enacted, s 23A of the Defamation Act also requires a court considering preliminary discovery to identify a poster to take into account the objects of the Act and any privacy, safety or public interest considerations.
How confidential sources affect the defences
A publisher can protect a source and still run the public interest or qualified privilege defence. It cannot, however, expect the court to accept the source’s reliability without scrutiny. Section 29A(3) lists among the factors the court may take into account: the sources of the information and their integrity; whether there is good reason for a source’s identity to be kept confidential; whether the publication contained the substance of the person’s side of the story or a reasonable attempt was made to obtain and publish a response; and any other steps taken to verify the information.1
Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223; (2023) 303 FCR 372 illustrates the point. Lee J held that s 29A is concerned with the reasonableness of the publisher’s belief that publication was in the public interest, assessed by tracing the publisher’s actual reasoning rather than asking what a reasonable person would have done.17 The ABC’s principal source for the first article was a former soldier who was candid about the limits of his memory. The court accepted that this candour might indicate truthfulness, but held that fuzziness of recollection also heightens the possibility of error and the need for increased scrutiny, and found that the journalist did not do enough to test the account, distinguish known from unknown facts, explain the integrity of his sources, convey the plaintiff’s side, or justify the concealment of the source’s identity.17 The defence failed and judgment was entered for $390,000.17
The case also shows how a publisher can lose the privilege through its own conduct. The ABC did not claim s 126K privilege for its principal source because it had published identifying material about him, and it later withdrew its public interest defence after being ordered to produce documents with his identity unredacted. Lee J observed that a journalist protects a source by acting in a way that keeps the source’s identity confidential, so that the s 126K privilege can be invoked, and by avoiding conduct that enables the identity to be ascertained, such as publishing the source’s photograph.17
Practical guidance for journalists and publishers
- Make and record the promise. The privilege attaches only where confidentiality was promised (or, in South Australia, reasonably expected). A contemporaneous note of what was promised and when is the foundation of any later claim.
- Protect the identity in the published work and in internal documents. Pixelated images, altered voices, job titles and details of location can all enable identification, and material that would do so is not protected merely because the name is withheld.
- Verify independently. A single confidential account, however sincere, is a thin basis for a serious allegation. The s 29A factors reward corroboration, documentary support and checks with people who have first hand knowledge.
- Distinguish allegation from fact in the copy. Section 29A(3)(b) asks how far the publication distinguishes suspicions, allegations and proven facts.1
- Put the allegations to the subject in enough detail, with reasonable time to respond, and publish the substance of the response. A request that does not disclose the substance of the allegation is unlikely to count as a reasonable attempt.
- Keep notes, drafts, messages and editorial correspondence. They are the evidence of the publisher’s reasoning that s 29A requires.
- Obtain legal review before publishing contentious material, and plan how source material will be handled if proceedings are commenced.
What this means for plaintiffs
A person suing over a story based on confidential sources should expect that the sources will not be identified unless a court is persuaded that the public interest in disclosure outweighs the competing interests. A more productive approach is usually to scrutinise the publisher’s own conduct: what verification was done, what was put to the plaintiff, how the copy distinguished allegation from fact, and whether the belief that publication was in the public interest was reasonable on the material the publisher actually had. Preliminary discovery remains available where it is necessary to provide an effective remedy, particularly where forged or fabricated material is alleged.
Differences between jurisdictions
The shield law applies according to the court in which the proceeding is heard: the Commonwealth Act in the Federal Court, and the relevant state or territory Act in state and territory courts. The provisions differ in the definition of journalist, in whether a promise is required, in whether the privilege applies to pre trial processes and tribunals, and in the factors listed for the public interest override. Queensland’s regime, the most recent, is also the most detailed. It extends to search warrants and to QCAT, and since 31 August 2025 it has also applied in Crime and Corruption Commission proceedings.9 12 Tasmania alone has no journalist specific privilege and relies on a general discretion to exclude evidence of professional confidences.14
The Defamation Act provisions discussed here, ss 23A, 29A and 30, use New South Wales numbering. Queensland, Victoria, Tasmania and South Australia use the same numbers; the ACT and Northern Territory have equivalent provisions under different numbering; Western Australia has not enacted s 29A, s 23A or the current form of s 30, and the pre 2021 version of statutory qualified privilege continues to apply there.
Getting advice
Whether a source can be protected, and at what cost to a defence, depends on what was promised, what was published and what the publisher did to verify the story. Publishers facing a claim, and plaintiffs considering whether to pursue a source, are both well served by advice before taking any step that touches on the source’s identity.
About this article
This article is general information about Australian law as at the review date shown above. It is not legal advice and does not take account of any particular situation. Defamation law differs between states and territories and changes over time. Anyone considering making or defending a claim should obtain advice on their own circumstances before acting.