Monday, 25 October 2010
Evidence Amendment (Journalists’ Privilege) Bill 2010
I rise to speak in support of the Evidence Amendment (Journalists’ Privilege) Bill 2010. I commend the member for Denison for bringing this bill into the chamber. I thank him particularly for demonstrating the courage to tackle an issue that has for too long rested in the political too-hard basket. And I acknowledge that he has received support from both sides of the chamber for this bill which provides greater protection for journalists and their sources.
Journalists have long lived with the tension of balancing ideals of a free press and the public interest while upholding their professional code of ethics by protecting their sources that provide information on a confidential basis. In other professions, the boundaries of privacy and discretion are clear cut. In this House, we know that what we say—the arguments we put forward—are privileged. What I say in my other house, where I do not have quite so many rights, is also protected—by marital privilege. A patient knows their health records are confidential between them and their doctor. A client knows that what they share with their lawyer is protected. In fact, legal professional privilege is almost one of the cornerstones on which our justice system was built. Nonetheless, the law remains hazy around a journalist’s right to protect the identity of a confidential source.
In this House we often encounter journalists. In my six years in politics I have met many journalists and I could even say that two of them are my friends—although I will not name them to protect myself and them. I also have many solid acquaintances who are journalists. A number of journalists have caused me some concern, but overall I respect their profession. A healthy democracy relies on the ability of journalists to hold a government and its institutions to account and sometimes, whilst it is painful for politicians particularly, this can only be done with the help of sources who, for whatever reason, choose to remain anonymous. If sources cannot speak to journalists with a confidence that their identity will be protected then whistleblowers will be significantly less likely to expose wrongdoing.
There are many examples we could look at throughout history. I would particularly mention the courageous Toni Hoffman, who acted in concert with the Courier-Mail journalist Hedley Thomas to expose some of the work done by Dr Jayant Patel. Their work paved the way for major health reform in Queensland. There have been other examples also. In Australia, journalists hold firmly to their code of ethics. The third clause in the Media Alliance Code of Ethics states that journalists should:
Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.
I am sure there are many copies of that code of ethics in the media gallery upstairs.
During the last parliament, the Senate Legal and Constitutional Affairs Committee had a close look at this issue. In their submission to that inquiry, Australia’s Right to Know—a coalition of major Australian news organisations, including News Ltd, Fairfax, ABC, AAP, Sky News and the Media Entertainment and Arts Alliance—said:
Keeping a source confidential is fundamental to the ability of journalists to maintain trust with their sources and to encourage other sources to trust journalists and bring forward information of public concern.
Therefore, it is in the public interest for journalists to maintain a circle of trust and to ensure that sources who seek anonymity can be confident that they are protected.
During the last 20 years nine Australian journalists, in six separate cases, have been convicted or jailed for not revealing sources: Tony Barrass, from the Sunday Times in Perth, was imprisoned for ten days and fined $10,000 in 1989 for refusing to disclose a confidential source; Gerard Budd, from the Courier-Mail, was imprisoned for 14 days; Deborah Cornwall, from the Sydney Morning Herald, was given a suspended jail sentence; Chris Nicholls, from the ABC, received a prison sentence for his story relating to a conflict of interest of a South Australian government minister; and Belinda Tasker, Anne Lampe and Kate Askey from AAP and the Sydney Morning Herald refused to reveal their sources but avoided jail after the NRMA board dropped the case. Most recently, Herald Sun journalists Michael Harvey and Gerard McManus were convicted of contempt of court and fined $7,000 each for refusing to reveal the source of a story.
Australia has fallen behind most western democracies on this issue. Journalists in New Zealand and the UK, for example, are protected by law from revealing their sources in almost all circumstances, the exception being cases of national security—and I know that the member for Denison has looked at the New Zealand legislation for a guide.
The bill before the House amends the Evidence Act 1995 to ensure privilege for journalists who receive information confidentially in almost all circumstances. Significantly, it will require the court to give a presumption in favour of journalistic privilege. For the first time, journalists will be able to refuse to answer or produce evidence that would reveal the identity of a confidential source—a similar protection enjoyed by lawyers. However, there are safeguards in place by way of a public interest test. A journalist’s protection will be waived where the court considers the public interest in disclosure outweighs any likely adverse effect on the informant, the public interest in the communication of facts and opinion to the public by the press, and the ability of the press to access sources of fact.
I do support this bill and I support shield laws which provide a presumption in favour of journalists privilege. However, I believe that this bill could be improved by providing an expanded definition for ‘journalist’ or ‘reporter’. I will not be moving an amendment here but, as I have indicated to the member for Denison, I would hope that this amendment could be taken up with the Senate to improve the legislation. As an additional safeguard, this definition enshrined in legislation would ensure that rogues—who do not uphold the journalists’ code of ethics—are not able to hide their shonky reporting behind shield laws. In terms of the modern day, it is easy to see people like Laurie Oakes and the others who sit up in the journalists gallery as journalists, but there is then quite a continuum down to the perhaps aggrieved blogger who puts out something every week. So I hope that the Senate will be able to amend this piece of legislation.
While this bill offers greater protection to journalists, the primary purpose of this legislation is to ensure greater accountability and transparency of government and public organisations. Consequently, I would suggest to the Senate that the definition of journalist include some additional words. If we go to the 126G definition where journalist is defined, I would suggest that it also include ‘a person who ascribes to the journalist code of ethics as published and codified by Media, Entertainment and Arts Alliance’. This would be a narrower definition that would still cover the intent of the member for Denison’s legislation.
There are very high expectations that journalists will report the news in the public interest—not the interests of the shareholders of the company or the media owners—and that they will do so honestly and ethically. However, we must ensure the courts do not have the power to bully journalists into disclosing confidential sources.
Finally, I hope this bill will pave the way for similar legislation across all states and territories to ensure that there is greater uniformity and certainty for journalist shield laws throughout Australia. I welcome the member for Denison’s and the Attorney-General’s commitment to work to that end. I commend the bill to the House.