Thursday, 3 March 2011
Evidence Amendment (Journalists’ Privilege) Bill 2010
Consideration resumed from 15 November 2010.
We are going into committee on the Evidence Amendment (Journalists’ Privilege) Bill 2010.
The Temporary Chairman:
We are dealing with the Evidence Amendment (Journalists’ Privilege) Bill 2010. Is it the wish of the committee that the bill be taken as a whole? There being no objection, it is so ordered. There have been two sets of amendments circulated: one by Senator Ludlam and the other by Senator Brandis. Are you ready to proceed, Senator Brandis, or shall we proceed with Senator Ludlam?
The amendments that we have circulated have the effect of providing a slight broadening of the definition of ‘journalist’ and what it actually means. I will take the chamber through this in a little bit of detail, because I think it is quite important. At the moment we have some definitions in schedule 1 of the bill which provide that ‘journalist’ means a person ‘who is engaged and active in the publication of news in the normal course of that person’s work’. The reason I am raising this issue is that we have some concerns at the moment that the bill is effectively drafted for a 20th century interpretation of who qualifies as a journalist, that it is intended to apply—probably quite correctly, in the original sense—to people working for regular media organisations in the distribution of news, whether it be a newspaper or electronic media. I think this goes back to the original definition of ‘journalist’ as someone who might be a member of the MEAA, or who has signed up to the Journalists Code of Conduct—or whatever definition of journalism you might wish to adopt.
One of our amendments proposes to delete the words ‘in the normal course of that person’s work’. That just means that, if you are engaged and active in the publication of news then you might have put yourself in a position where an informant would have contacted you and expected the kind of protections that this bill seeks to provide, and as far as I am concerned it should not matter whether you work for the Age or for the ABC, whether it is a piece that you put on Crikey, or whether it is a piece that you have even put up on your own blog, for that matter. What we are trying to do here is make sure that it does not matter who you work for, or whether you were paid; if it is an act of journalism you should be offered the protection of the court and it should be up to the court to decide, not necessarily whether the protection applies but whether it is in the public interest that the disclosure should occur or not. We are not seeking to simply apply blanket protection to anybody who adds a comment to Facebook.
I understand I have government support for these amendments, negotiated towards the end of last year after a little bit of back and forth. I would very clearly like to put on the record that we are not seeking to have any comment or any piece of work that might be put out in the name of journalism protected by this power. What we are very strongly seeking to do, though, is make sure that the door to the court is not closed in the first instance—based on, for example, an interpretation such that, if you were not paid for that work, should you and your source be offered the protection that this bill seeks to provide. That is effectively the important distinction that we are seeking to draw here. If the court decides that it is in the public interest that your source be protected then it should not depend on whether you were paid or not.
At the very last minute the government has introduced a certain amount of ambiguity into the precise nature of their support for the amendments that we have circulated, so what I might do at this stage is give the minister an opportunity to clarify that ambiguity. I was told, just for the record, that the government was satisfied with the form of words that we had ended up with late last year. I confirmed that with the Attorney’s office earlier this week. If there has been some confusion, or if the amendments did not turn out quite the way the government was anticipating, then obviously we will negotiate right here on the floor of the chamber, which would be very interesting. But I first seek some clarification from the minister as to exactly what the government proposes to do with the Greens amendments when I move them.
To make it easier, you could put amendment (1) separately and amendments (2) and (3) could be dealt with together. The government does not accept (1). It recognises that (2) and (3) are worthwhile amendments and can be accepted. I will go through the detailed reasons for that—it will not take long.
The bill was always intended to ensure adequate protection for journalists and their sources. The amendments clarify these protections and therefore the government supports them. They fit within the objectives of the bill and are consistent with the Commonwealth Evidence Act 1995. The definitions in the bill are modelled on the New Zealand journalist shield provisions. The definitions of ‘journalist’, ‘informer’ and ‘news media’ rely on their ordinary meaning to allow the court to take a case by case approach. These amendments address concerns expressed as to whether the New Zealand definitions are technology neutral and cover all of those engaged and active in the publication of news. I hope that that assists.
The opposition does not support any of the three proposed amendments. I note what Senator Ludwig has said in relation to amendment (1). I will deal with amendments (2) and (3). In particular, I express the concern that by broadening the definition of ‘journalist’ and the activities that are captured by the bill by removing ‘in the course of that person’s work’ and substituting ‘is engaged and active in the publication of news’ the bill expands it reach beyond that which a journalist does. In the opposition’s view it is appropriate and desirable to protect journalists, as the title of the bill indicates. ‘Anyone engaged or active in the publication of news’ could mean any person who, for example, publishes material on the internet or contributes to a blog—any citizen who by any medium publishes something that might be considered to be newsworthy.
Our concern is reinforced by amendment (3), which substitutes for the words ‘a medium’—’news medium’ being a defined term in the bill—the words ‘any medium’. If these amendments from the Australian Greens were to be adopted, the whole purpose of this bill would be expanded massively beyond its original conception, which is to protect journalists’ sources in defined circumstances. It would not merely protect journalists and it would not merely protect news media; it would be carte blanche to anyone who wanted to publish anything anywhere that might be considered to be news.
I ask honourable senators to pause to reflect on what that would mean, for example, for the operation of the law of defamation. There is a case, and it is a case that I on behalf of the opposition made for several years before either the government or indeed the Greens interested themselves in this matter, for protecting journalists’ sources in the derivation and subsequent publication of news. If you break the nexus between the privilege and the work of a journalist, what you have is a blanket protection, albeit subject to rebuttable presumptions, of anyone publishing anything anywhere that might be considered to be news. That is not the purpose which this legislation ought to be serving. It is certainly not the purpose in the opposition’s alternative legislation, which we seek to serve. We seek to protect the work of journalists as a profession in the course of their ordinary work, which is the language of the bill in its existing form. We acknowledge that the protection of sources is in appropriate circumstances an appropriate aspect of that protection of the work of journalists. But adopt these amendments, and particularly amendment (2), and it ceases to be legislation that protects journalists at all. It creates a free-for-all in the publication of anything, with no limitations at all. It would extend a protection meant to facilitate the work of journalists to anyone engaged in whatever form of opportunistic activities. So we counsel very strongly against the adoption of these amendments from the Greens. At their most extreme level, they would entirely defeat the purpose, which is a narrow and specific but important public policy purpose, of the bill.
My position is similar to the government’s in relation to these amendments. I will support amendments (2) and (3). Senator Brandis is going to put forward a bill. This is the government’s bill, the bill that I have worked on with the member for Denison. As I understand it, the amendments from Senator Brandis will in effect turn this bill into his bill—I think that is fair summary. But for the purposes of these particular amendments, I support amendments (2) and (3). Amendment (1) is somewhat too broad. Amendments (2) and (3) would clarify the definitions. I understand the concerns of Senator Brandis, but, given time constraints, I am prepared to live with those amendments. But I am also comfortable with the bill in its current form. But I do not have an issue with amendments (2) and (3).
I know it is a little unorthodox to put a question to a shadow spokesperson, and I should apologise to Senator Brandis in this instance because this bill has come on fairly suddenly and I have not had the opportunity to speak about the intention of these amendments with Senator Brandis. Irrespective of the views he might hold I apologise that I was not able to speak to him about them before we found ourselves in committee.
I wonder whether Senator Brandis would care to address the issue of the government’s drafting of the bill. The bill has been through quite an exhaustive committee process over the last couple of years, but it would appear on my reading to exclude the protection of the courts from people who were not being paid. That is quite an important distinction that I do not necessarily know that we want to draw. This does not go to the definition of whether or not you are a journalist; it hinges on the language around ‘in the normal course of that person’s work’—and I think a commonsense reading of that text would indicate that you would need to be drawing some kind of payment for the publication of the work.
The case that I put and the reason that I strongly support this amendment being passed is that I do not think that is a distinction we should draw. I think there is genuine public interest journalism in Australia, on the most sensible definition of how people would understand the term, that is not necessarily paid and does not necessarily appear in the early pages of the Sydney Morning Herald but is nonetheless journalism and should be afforded the protection of the courts that I think we are all in agreement should be applied and updated. I wonder whether Senator Brandis would care to address this issue in the context of the remarks he has just made.
My concern is that Greens amendment (2) goes beyond that; that Greens amendment (2) would attract the protection, which it is the purpose of the bill to afford to journalists, to anyone engaged and active in the publication of news—not just someone who, doing the work of a journalist, may be acting without remuneration but anyone purporting to do the work which journalists commonly do; in other words, publish news.
The opposition’s attitude, and this is reflected in the way in which the opposition bill is structured, has always been that the professional confidences which apply to a range of professions—for example, the legal profession and the medical profession—ought to be applied to the protection of journalist sources as well. With respect, we approach this from an entirely different frame of reference than Senator Ludlam does. We see this reform as an extension of the law that protects professional confidences and we accept that, because reliance on sources in the bona fide investigation and subsequent publication of news is integral to a journalist’s work, the relationship between a journalist and a source ought, at least presumptively, be a privileged relationship.
The amendment that Senator Ludlam proposes is not so limited and does not really approach the question from that perspective. As I interpret his amendment it says that, as long as something is news, it does not matter who publishes it or publicises it. That is why I said in my earlier contribution that, if we expand the definition of ‘journalist’ as widely as he would have us do, this ceases to be legislation which provides this protection, which privileges a particular kind of communication in which journalists are engaged in the course of their professional activities. It says to every person in society that, whether they are journalists or not, if they are seeking to publish or bring to public awareness a fact which they assert to be a newsworthy fact, they should have a presumptive privilege. That is not the protection of journalist sources; it is a much more extensive thing which we do not think is good policy—it is the protection of a communication between any person and a source which might result in the person deriving the information choosing then to publish it in any form on the basis that it is news. That is the reason for our caution here and our opposition to the Greens amendments.
I thank Senator Brandis for that clarification. I cannot do too much more than commend these amendments before I move them. Effectively I suppose I will just have to respectfully disagree and say that we are not seeking to do exactly as Senator Brandis has stated. It is important here to remember exactly what this bill intends to do. It intends to allow the courts, when these kinds of cases come before them—as they do quite regularly in my home state of Western Australia—to consider the public interest in deciding on disclosure of a source or not. The balance I think we have been able to strike here is to say that the plain English definition of ‘journalist’ is still here in the bill—and if somebody is going to be receiving confidence from a source, and that source would expect that kind of protection, I do not think we want the doors of the court to be closed based on those kinds of criteria. We are trying to leave those judgments to the court—is it in the public interest that this particular source, this particular confidence, be disclosed or not?
The bill as drafted at the moment would have the effect of potentially either closing the doors of the court or tying courts up in sequences of arguments about to whom the protection should apply. In my view, and in the view of the folk we have taken advice from in the course of drafting these amendments, that is the wrong kind of argument. We do not want to be tying the courts up in long debates about whether the door should be open or not; whether you are a journalist or not. The argument that we want heard in the courts is: should this protected confidence be protected or not? Is it in the public interest that this be disclosed or not?
That is why I am pressing the point, Senator Brandis. I am not sure that we are quite as much at cross-purposes as you have indicated in the remarks you have put this morning. We are not seeking to have vexatious confidences or other material protected that it is not in the public interest to protect; we are simply seeking to have the court’s doors open so that those kinds of arguments can be heard in the small number of cases where a source has given some kind of confidence to somebody for publication in a news medium and expected that their identity would be protected. We potentially would have people who have the expectation of protection—and people who may feel as though they have the ability to offer that protection—and then, when push comes to shove and it comes before the courts, find those doors are closed. And then we never get to hear the argument as to whether or not it is in the public interest that the source be protected.
If Senator Brandis wishes to speak again, I will yield and then move the amendment in a moment.
Thank you, Senator Ludlam. I would like to respond to that. The point I make to you and other senators, through the chair, is this: do you want this legislation to be about the protection of journalists’ sources or do you want this legislation to be about the protection of any confidence which might subsequently be published in some medium by a person, whether a journalist or not, on the basis that it is claimed to be news? A law which presumptively protects anything said to anyone in confidence which might subsequently be published by the recipient of the information on the basis that it is news throws a cloak of privilege over a vastly wider range of information and a vastly greater number of persons than a law which merely protects journalists’ privilege.
Let me make two points about the courts, if I may, Senator Ludlam. First of all, remember that this is about withdrawing information from a court. The basic proposition on which courts of justice work is that all of the relevant evidence should be placed before them so that they can arrive at an adjudication of a dispute, whether a criminal prosecution or a civil dispute, fully informed of every relevant fact. That is integral to our notions of justice. Nevertheless, in certain circumstances we withdraw information from courts because there are other values served which are regarded as being more important in the scheme of things than the principle that courts should have access to all relevant information. For example, we respect the privilege against self-incrimination. For example, we respect lawyer-client privilege, so that what a person says to his lawyer cannot be used against him in court, even though it might be that if the court knew what the person had said to his lawyer that would relevantly influence the court’s deliberations on the particular case. There are other values that qualify the general principle that the court should have before it all relevant information so as to resolve a dispute justly.
What this bill does is create a new category, only by a rebuttable presumption of course, of information which may be withdrawn from the court—that is, the identity of a journalist’s source—so that if the bill in its original form were to be passed, and the presumption were not to be rebutted, there would be something which under the law today the court can insist on knowing about (namely, the identity of the source) which it would not know about. And certain consequences follow from that—for example, the capacity fully to test evidence in cross-examination knowing who the source is.
We the opposition agree—and here we agree with you and with the government, although the government are the latest to the party here—that in certain limited circumstances there is a case to be made for the protection of a journalist’s source which acts as a qualification on the general principle I have recited that courts should have access to all relevant information. You expand that as widely as this amendment would and what you are saying—subject of course to there being a rebuttable presumption rather than an ironclad rule—is that the range of information which may be withheld from the court is vastly greater. The range of information that can be withheld from a court is anything which is given to someone in confidence which might by the recipient of that piece of information subsequently be published, on the footing that it is said to be news. So you are, to that extent, inhibiting far beyond the extent to which it is necessary to do so the capacity of a court to be fully informed of every relevant material or material fact.
Senator Ludlam, I say to you with great respect, when you are proposing to amend the law to create circumstances in which otherwise relevant or material information may be withdrawn from the eyes of the court, the way to approach it is to do so as conservatively and narrowly as possible so as to serve the countervailing public policy objective, not to do so in an expansive way which impinges too much on the general rule that courts should be able to resolve disputes fully informed of every relevant fact. That is the first point.
The second point is this. You say do not close the door of the court to this. For the reasons as I have just explained, it is your amendment that would close the door of the court, but it does not completely close the door of the court because this legislation acts on the basis of rebuttal presumptions. What you would then be doing, though, by expanding very significantly the category of information caught by the legislation, is to engage the court in a much more prolix and complicated inquiry, an inquiry which would give rise to a multiplicity of additional issues of fact as to whether or not this particular sort of information should be protected, and therefore you will prolong proceedings vastly. So for that reason as well, it seems to me, if I may say so with respect—I understand your intention and there is no doubt about the good faith with which the intention is expressed—you pass this amendment and it will, in fact, defeat the objective you have recited. In particular, consider this Senator Ludlam. Consider the injustice of a person being convicted by a court not fully possessed of every relevant or material fact. Consider the injustice of a person having a civil dispute resolved against their interests by a court not possessed of every relevant or material fact. If you approach it that way, which is the way I approach it, then you would say, where there is a powerful reason to qualify that rule, qualify it as little as possible, which is what the opposition’s proposal would do, but that is an objective which your amendment, perhaps unintentionally, would thwart.
I do not propose to prolong this issue too much further, except to indicate that I respectfully disagree with Senator Brandis. Having listened very carefully, you contemplate an amendment which reduces the amount of information available to courts. With the greatest circumspection and respect—and we do certainly agree on that principle—before the circumstance arises which Senator Brandis just sketched for the chamber, the court would have heard a public interest argument as to whether or not that information should have been withheld from the court. That is the essence of our disagreement, while agreeing in principle that you treat with great caution any proposition to curtail the rights of a court to hear whatever evidence it pleases. So I do understand the objection Senator Brandis is raising. I simply believe that before the circumstance he describes for us arises, the court has satisfied itself that there is a strong public interest argument, as the rest of this bill is intended to create, for that information not being produced in court. I thought, in essence, that is the purpose of the bill—that the public interest test is what is important here. I realise that muddies the debate around whether it should be applied to a Facebook comment or to some sketchy blog somewhere out on the internet—and bring us back to the foundation of this bill which is about source protection and the expectation of protected confidence. I have to respectfully disagree with Senator Brandis.
As indicated by the government, I move Greens amendment (1):
(1) Schedule 1, item 1, page 3 (line 11), omit “work”, substitute “activities”.
by leave—I move Greens amendments (2) and (3) together:
(2) Schedule 1, item 1, page 3 (lines 13 and 14), omit “in the normal course of that person’s work”, substitute “is engaged and active in the publication of news”.
(3) Schedule 1, item 1, page 3 (line 17), omit “a medium”, substitute “any medium”.
Question agreed to.
by leave—I move opposition amendments (1) and (2) together:
(1) Schedule 1, page 3 (after line 4), before item 1, insert:
1A Subsection 126A(1) (definition of protected confidence)
Omit “a journalist”, substitute “another person”.
1B Subsection 126A(1) (note to the definition of protected confidence)
Repeal the note, substitute:
Note: Communications with journalists are covered by Division 1B.
(2) Schedule 1, item 1, page 3 (lines 5 to 7), omit:
Division 1A of Part 3.10
Repeal the Division, substitute:
Division 1A—Journalists’ privilege
After Division 1A of Part 3.10
Division 1B—Journalists’ privilege
The Commonwealth and New South Wales evidence acts have departed from uniformity in their treatment of professional confidential relationships. The Commonwealth act confines the definition of ‘protected confidence’ to ‘a communication made in confidence to a journalist’. The New South Wales act defines the same term as arising in the course of a relationship in which the confidant was acting in a professional capacity under an obligation not to disclose the confidence. The continued restriction of the privilege claim is anomalous. The coalition’s bill therefore adopts the formula of the New South Wales act. Not only would it restore uniformity but it would avoid arbitrarily confining the circumstances in which claims of privilege may be justifiably asserted and as well it brings this area of the law more closely in conformity with equity courts’ protection of confidential relationships. The amendments retain the existing subsection 126A and make the appropriate extensions.
I am trying to determine whether the first part of the submission on (1) was narrowing it, while now we are widening it—I am trying to reconcile that difference. But I do not particularly want to go there. I do understand the point Senator Brandis makes.
The government do not support the amendments proposed by Senator Brandis. While the government support the objective of the model professional confidential relationship privilege agreed to by the Standing Committee of Attorneys General, we do not believe it should be included in this bill. Any further consideration of the general professional confidential relationship privilege should not delay the introduction of the important journalist provision contained in this bill. The government, I foreshadow, will be introducing provisions in a separate package of evidence reforms which will ensure consistency with model provisions agreed by the Standing Committee of Attorneys-General. That will be put before this parliament and there will obviously then be the opportunity of debating it.
The Australian Greens will also not be supporting these amendments, although perhaps I will make that conditional on further remarks from Senator Brandis, if he cares to make them. I just apologised to him for circulating amendments which we had not had time to discuss, but now he has done exactly the same to the crossbenches. I am therefore not entirely clear about the effect of these amendments and I would greatly appreciate Senator Brandis going into a little bit more detail. My reading of these amendments—and they were not necessarily reflected in the comments Senator Brandis just made—is that they would have quite far-reaching impacts. This is not merely a technical amendment. I believe that it goes to, in some measure at least, the objectives that Senator Brandis was pursuing with an entirely separate bill—to expand the matters that we are referring to. I reserve my judgment on the opposition amendments pending any further explanation Senator Brandis might give us about what these amendments will actually do.
I advise the Senate that the amendments were in fact circulated last November. As I said in my earlier remarks, the approach of the opposition has been to attempt to incorporate appropriate journalists’ privilege within a broader and more consistent framework for the protection of professional confidences. The difference between our approach and the approach reflected in Australian Greens amendment (2), which has just been passed, is that we limit these protections to professional relationships—the sorts of confidential relationships which have traditionally been protected by the courts in other analogous areas, but most commonly professional relationships.
We say the profession of journalism and the confidences of which journalists are, in the course of their work, the recipients, ought appropriately to be brought within that class of relationships, but brought within that class of relationships in a way that seeks to achieve consistency with the law’s protection of other acknowledged confidential relationships. That is the approach of the New South Wales Evidence Act, which guides our approach here.
Without revisiting the debate we just had a few moments ago, our concern, as I said, was that the Greens amendment, which has now been adopted by the committee, would expand very significantly the scope of the protection and hence the scope of the material which might be withdrawn from the court, not by reference to a new category of professional confidence but by reference merely to the activity in which the person seeking to invoke the privilege was engaged—that is, the act of being ‘engaged and active in the publication of news’.
In answer to the charge that we were seeking to narrow but are now seeking to expand, what we were in fact seeking to do was to develop a rational scheme for the protection of confidences which does not regard the nature of the activity as the key criterion or point of discrimination, but which rather identifies one discrete and specific form of professional confidence—that is, a confidence given by sources to journalists—and seeks to accommodate that within a rational scheme which reflects, by and large, the current law but which protects confidential relationships.
Courts acknowledge the availability of confidentiality in these circumstances not by reference to the activity but by reference to the nature of the relationship. That is the point of distinction. What you seek to do, Senator Ludlam—and the government has gone along with you—is to define whether a confidence should be protected by reference to the nature of the activity. What the opposition say is that that goes far too far. What we should do, in an orthodox way, is continue to extend the privilege by reference to the character of the relationship and, by taking one further step, bring the relationship between a journalist and a source into the existing categories of professional relationships which the law protects.