03/02/2020 Slater v Blomfield [2014] NZHC 2221; [2014] 3 NZLR 835 (12 September 2014) 10. Law Commission Evidence. Volume 1: Reform of the Law (NZLC R55, 1999) at [301] and [302] referring to the earlier preliminary paper, Law Commission Evidence Law: Privilege (NZLC PP23, 1994) at [342]. 11 Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd, above n 5, at 171. 12 At 166. including the newspaper rule,15 and the need for a specific statutory regime to protect journalists’ sources.16 The newspaper rule was referred to obliquely by the Law Commission in its 1999 report.17 In discussing the proposed new section it was stated:18 [S]ome limited protection is currently provided by the common law. It observed that the new section would provide specific qualified “privilege” for journalistic sources. [29] Section 68 must be regarded as setting out a new comprehensive rule to be applied when a newspaper seeks to avoid disclosure of its sources, although r 8.46 can be invoked separately. This appears to be the intention indicated in the Law Commission reports. Moreover, under s 10 of the Evidence Act, s 68 may be interpreted having regard to the common law, but only to the extent that the common law is consistent with its provisions. To apply the newspaper rule would be to run the risk of reaching a result inconsistent with s 68. The rule and s 68 involve different tests. Section 68 applies not just to newspapers, but to journalists generally, and sets out a new regime. It is similar to the old newspaper rule but contains specific definitions. Further, in s 68(2) there is a new and particular test setting out particular factors and a defined and stipulated weighing process for denying a newspaper protection. [30] While the newspaper rule co-existed with s 35 of the Evidence Amendment Act 1980 (No 2), that section did not impose a comprehensive regime of the type imposed by s 68 applying as it did only to confidential relationships. A court would be in a difficult position if it tried to determine a claim for confidentiality based on the newspaper rule and a claim based on s 68. Only one can apply, and that clearly must be s 68. I conclude that the newspaper rule has been subsumed by s 68, and should not be applied separately. [31] Section 68 is in subpart 8 entitled “Matters relating to interpretation and procedure”. Subpart 8 is divided into the headings “Privilege” and “Confidentiality”. 15 16 At [342]–[343]. At [349]–[355]. 17 Law Commission Evidence. Volume 1: Reform of the Law, above n 10, at [301]. [32] Section 68 falls under the “Confidentiality” heading. The juxtaposition of the headings indicates that s 68 can be seen as arising from the concept of the receipt of confidential information, rather than privilege. The protection is not a right arising from a special relationship such as that between a solicitor and a client, but is a protection extended to those who disclose information for publication to journalists. It is an exemption from compellability rather than an entitlement to a particular type of privilege.19 It can arise in single one-off exchanges, or a longer term series of disclosures, as appears to be the case in this matter. Although there must be an expectation of publication in a news medium, the section focuses on disclosure to journalists, and it is the function of the journalist who received the information that is the key. A non-journalist will not be able to invoke s 68(1) just because the publication is in a news medium as defined. www.nzlii.org/nz/cases/NZHC/2014/2221.html 7/30