Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

Mr Deputy Speaker Causley, you were in the chair when I was speaking previously on the Evidence Amendment (Journalists’ Privilege) Bill 2007. I had just finished summarising the provisions of the bill as outlined by the Attorney-General in his second reading speech when the debate was interrupted. I was amused and rather confused that the member who preceded me, the member for Wills, who is from Victoria, had not realised the seriousness of this debate and used it to have a crack at the government as if it were an ordinary debate. I noticed, Mr Deputy Speaker, that you drew him back to the debate several times. What I am putting to you today is that this is a very important bill. It is about how journalists operate in this country. It is about protecting the freedom of journalists to operate in a way that protects the public, protects journalists and protects this nation. It is a very serious bill. Bills like this do not come before the House very often. Many bills are technical omnibus bills which change parts of legislation. But this is a very serious bill about freedom in Australia—the freedom for the public to receive as much information as they possibly can, having regard to an orderly society.

I would like to turn to some considerations that have given rise to this particular piece of legislation. Almost all of those who spoke before me referred to the most recent and celebrated case involving journalists and contempt proceedings. That involved Melbourne Herald Sun journalists Michael Harvey and Gerard McManus. We have all referred from time to time to the parliamentary press gallery journalists as being members of the fourth estate. It is interesting to reflect on how the journalistic profession acquired this title. Journalists have come to accept that it refers to the profession’s relationship with the traditional British concept of the three estates of the realm, the lords spiritual—the bishops and clergy; the lords temporal—the aristocracy; and the commons. Since the early part of last century, the media has been portrayed as forming a fourth estate of the realm in acknowledgment of its role as a counterbalance to the power of the government of the day—in this particular case, the Liberal and National parties—and also as a watchdog over whether the opposition is doing its job or not. It is not just about keeping an eye on the government of the day or an individual member. There is not a member in this place who has not been made uncomfortable by the fourth estate.

The recognition of the role of the media in governance is often attributed to 19th century Scottish historian Thomas Carlyle. However, he was quoting an even earlier Anglo-Irish politician and thinker, Edmund Burke. According to Carlyle, Burke made this observation:

There are Three Estates in Parliament; but, in the Reporter’s Gallery yonder, there sits a Fourth Estate more important than they all.

Burke was a leading figure, as you know, in British politics at the time of the American War of Independence, so this notion of the value of a free and independent media and its scrutiny of government actions has a long history. His thoughts were echoed by an American contemporary and one of the authors of the Declaration of Independence, Thomas Jefferson, who declared:

Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.

From the time of the circulation of the first news sheets to when mass produced newspapers were developed to today with our sophisticated electronic media, every tyrant, despot and dictator has realised that their greatest enemy is the free flow of information. Their first moves are inevitably to seize control of television and radio stations, the printed media and any other form of media—for example, the internet—that they can close down. In this way, they can stifle that free flow of information and force-feed the public with their own particular brand of propaganda. That is why we have to ensure that Australia continues to have a free and robust media as one of the pillars of our democracy. This bill will contribute to this ideal by removing some of the constraints that might deter journalists from reporting in a manner that the public expects.

The opposition has qualified its support for the legislation, however, by claiming that it does not go far enough and should contain protections for so-called whistleblowers. The government recognises the need for some protection for whistleblowers—however, only when it can be demonstrated that it is in the public interest. It has built some of these protections into recent legislation, including the Trade Practices Act, the Corporations Act and the Workplace Relations Act. You could add this legislation to that list. Simply providing a measure recognising the need for journalists to protect their sources in appropriate circumstances will provide some protection for those very sources. Like much of the legislation that comes before this House, this bill seeks to achieve a balance between competing interests. In this case, it involves striking a balance between the right of the public to know and the entitlements of governments, corporations and individuals to confidentiality. We have enacted legislation to protect the privacy of individuals, governments and corporations as a means of restricting access to what they regard as sensitive information. But there is no doubt that from time to time these protections are outweighed by the public interest. By providing the protections for journalists contained in this amending legislation, we will see that this public interest is served. I will conclude on this point: if we come to this place and can do one thing in the time that we are here that strengthens the freedoms enjoyed in this nation—which is freer than other nations—we have played the role that we should have played as legislators. There should be freedom under the law. This nation should be free.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

I thank the honourable member for McMillan for the sentiments he has expressed. Mr Deputy Speaker, ask him to remain for a moment so that I can explain to him why some of the larger sentiments that he has expressed, which I think would be held by most members of the House, are not given effect by the Evidence Amendment (Journalists’ Privilege) Bill 2007. It is true that this legislation mirrors, to some extent, legislation passed in New South Wales, but its deficiency is that it does not pick up the protections for public interest disclosures that that state has parallel to its legislation, and that means that the principal objectives that the member for McMillan understands the legislation is seeking to achieve will simply not be achieved. I will go through the logic later about why it does not do this, but there are two possible explanations. One is that the government is content to put forward a regime that does not effectively address journalistic reportage and to extend privilege in those instances where it champions the right—in other words, it is a deliberate deception—or that it is an unintended deception of the parliament, the community and the fourth estate that we speak for in this debate.

The reasons for my concern are that the confidential relationship that is protected by this legislation, again in a balancing exercise where the judge has to consider whether the public interest is such that it should be extended in any particular case to a journalist, does not apply where the communication to the journalist was in furtherance of an offence. In almost all instances where a journalist will be the subject of a claim of the nature that we would seek to protect—that is, the publication of a document that has been leaked or provided to them in relation to government conduct—they will be excluded from the operation of this act. The motivating factor for this legislation is said to arise out of the prosecutions of McManus, Harvey and Kelly, who would not be covered in this instance because, clearly, divulging cabinet documentation would be covered by the preclusion of the entitlement of any public servant or any other person holding that documentation to release it to anybody beyond their official duties. The act of disclosure to the journalist would be the commission of an offence under Commonwealth law. Section 126D clearly says that, in that instance, the umbrella that we have intended to shield journalists against the stormy consequences where the law would compel them to testify against their professional ethics or face the possibility of a contempt proceeding or a prosecution would not apply.

I want to draw the attention of the honourable member to this, because he and members of the House may have been misled by it. There is an erroneous statement in the Parliament of Australia’s Department of Parliamentary Service’s brief in relation to this legislation. The law and Bills Digest documentation on the Evidence Amendment (Journalists’ Privilege) Bill 2007 contains a provision on page 10 which says:

It may be significant to note here that proposed ss. 126F(4) contains a provision which would allow the court to extend the privilege to situations which are not directly covered by the provisions in the relevant division. This could presumably mean that, entirely at the Court’s discretion, it could cover situations where some illegality had tainted the communication.

If the honourable member understood that to be the case, I do not suggest that he would be acting from any ill motive, because that plainly is the documentation provided by the Parliamentary Library, and he is entitled to rely on it—but it is wrong. If you go to the second reading speech of the Attorney-General or if you look at the terms of section 126F(4), the language of the provision does not have that effect, and page 5 of the explanatory memorandum, which sets out the materials upon which the court could interpret that provision, says:

Subsection 126F(1) is a transitional provision and provides that the privilege does not apply to proceedings if the hearing began before commencement of the new Division 1A. However, subsection 126F(2) provides that the privilege applies to confidences made before or after the commencement of Division 1A.

Subsection 126F(4) provides that the professional confidential relationship privilege is not affected by, and does not affect, claims for any other privilege under Part 3.10 of the Evidence Act.

That is fine. That means that a journalist can rely on any of the other provisions in part 3.10 of the Evidence Act, but none is material to this. In those very circumstances where journalists are going to be exposed by acting in the public interest to disclose wrongful conduct by government, this shield does not apply. We have the smokescreen that says the government has been so responsive to the circumstances facing journalists who are now facing trial—McManus, Harvey, and Kelly—that it has brought before this parliament legislation that would have no consequence whatsoever in relation to those journalists. In fact, there is a risk that a judge addressing this might say, ‘The parliament has considered this matter in terms which expressly excluded the intended privilege to the circumstances of McManus, Harvey and Kelly.’ The judge might say that that shows that parliament intended that they face the consequences that they currently face.

I think that is a very real prospect, because this legislation does not cover those circumstances which the honourable member for McMillan—for perfectly understandable reasons—understood it to cover. It does not do it. And, of course, it would certainly not cover circumstances such as those of Chulove, Porter and Kessling. Kessling is the poor public servant currently facing imprisonment because of the disclosure of a matter that ultimately compelled this government to review security at airports and the like and prompted a massive address by serious intelligence personnel from outside Australia. It also prompted a large investment to upgrade and upscale the security weaknesses that had been put out into the public arena, which no doubt would not have been addressed but for that disclosure. In that instance, Chulove was not called as a witness, but had he been called and been requested under subpoena to provide the source of his information and had he refused, that refusal would not have been covered because, again, the divulgence of that information to that journalist would have been an offence under Commonwealth law.

So, in the very area of public policy that this legislation is supposedly intended to cover, it fails to do the trick. I do not know whether this is a deliberate smokescreen, an act of malice, to con those who are concerned about this—as the honourable member for McMillan plainly is and as so many of our colleagues in this House and in the fourth estate are—that there will be an effective regime that enables judges to apply discretionary considerations in relation to disclosures of that kind, or whether it is simply that the government itself does not understand what it has done. I suspect the latter is improbable. I suspect the minister is well advised and understands well what he has done—and hopes to skinny through with this. Without the parallel legislation that is in New South Wales that protects public interest disclosures, those disclosures remain criminal offences under Commonwealth law and are thereby taken out of the umbrella for this protection. The protection will apply only in a very limited area. It will apply, for example, where a person is given information by a criminal about some matter or other and will not disclose the criminal’s identity. But it will not apply where we think it is intended to apply—that is, where a journalist discloses some act of wrongful conduct by government. The very release of that information from the source within government to the journalist would be a breach of a Commonwealth law and therefore would be caught by the provisions of section 126D, which says that there is then a loss of the confidential relationship privilege in relation to that matter. And the division does not prevent the educing of evidence in those circumstances.

I do not want to take a long time to speak—I am due to chair the Main Committee and have no doubt overstayed my welcome—but I did want to make those very strong points. The second reading amendment moved by the shadow minister is of substance. I think that those in this House who are concerned about journalistic privilege—as is, I am certain, the member for McMillan, for whom I have the highest regard, and others making contributions in this House—actually believe that this legislation does the job. It does not. It does not do the job they understand it to do. There has been a fudging and an incorrect illusion allowed to run out there to the media and to other organisations that are concerned about this that the government has picked up concerns about protection of journalists in those circumstances that are currently faced by journalists such as McManus and Harvey. If after the passage of this legislation McManus and Harvey were in exactly the same position, they would not have the protection of it because it simply does not apply to them in those circumstances.

I think it is pretty important that we realise that this legislation does give some journalists some protections but not in areas where the concern originated from, and it does not cover those instances which the honourable member for McMillan has properly highlighted, where journalists are doing their largest public duty; that is, revealing the scandals we do not wish to be revealed. Journalists do many public duties, but their largest public duty is speaking the truth about matters which governments do not wish to be revealed. That is precisely where this legislation is deficient and precisely why the criticisms made of it by those who have examined it closely—and I do not wish to take members through the range of those who have articulated such criticisms—are well founded. I thank the honourable member for McMillan. I understand his passion about this matter—I share it; I think most members of this House do—but my regret is that, in giving lip-service to that passion, the government has failed to act consistently with it.

Sophie Mirabella (Indi, Liberal Party) Share this | Link to this | Hansard source

I rise to support the Evidence Amendment (Journalists’ Privilege) Bill 2007. This bill amends the Commonwealth Evidence Act 1995 to allow confidential privileges at trial and pre-trial proceedings for communications between a journalist and his or her source. Where appropriate, this legislation allows for much enhanced legal protection of sensitive and confidential communications between members of the journalistic profession and their sources. There is something of a conspicuous omission in the current legislative regime as it impacts on journalists and their communications with sources. As we know from the Attorney’s second reading speech on this matter, the current situation is that—save for New South Wales, which has an existing professional confidential relationship privilege in division 1A of part 3.10 of the New South Wales Evidence Act 1995—if a court compels a journalist to produce evidence about a confidential source or information gained from a source then the journalist has no legal right to refuse. Much commentary in recent times has centred on this pivotal point.

The high-profile case mentioned on both sides of the House in this debate to date and previously, involving two News Ltd journalists, is a startling reminder of the need for reform in this area. We debate this legislation in the context of their current trial, and I pay tribute to Mr Harvey and Mr McManus for the way in which they have approached this matter throughout their trial. As members on both sides of the House have noted, they are journalists of integrity and fine repute. The fact that this cannot be said of all those who go by the title of ‘journalist’ does not diminish the need in any way whatsoever for legislative reform in this area. These two journalists wrote of the government’s alleged rejection of benefits for the veterans community. We know that with the assistance and intervention of the Prime Minister a greatly enhanced veterans package was announced. Fair enough—it was a story of interest to the community.

My colleague the member for Kooyong put it quite well when he wrote in an article in the Age in 2005:

No one is above the law. But if Harvey and McManus are punished for protecting their sources then the law is a bad one.

On this occasion, I would have to say that I do agree with the member for Kooyong. It is difficult to accept that two upstanding members of the journalistic profession can be threatened with jail for doing their job, protecting their sources and reporting a story that had no implications for national security. The role of the media in reporting politics and political events at a time of a weak and ineffective opposition is even more important because in those circumstances the media is largely the one available, and able, to hold any government or any other political organisation to account. And that is a very valuable role to play.

Unfortunately, this bill will not assist Harvey and McManus, but we should do whatever we can to ensure that journalists do not have to endure legal coercion to breach their own ethical code and reveal confidential sources. There is an unbridgeable disparity between what is essentially a legal reality and what might loosely be termed as a journalistic ethics register which has produced dispiriting outcomes for those journalists who are serious enough to protect their sources whilst at the same time facing a contempt-of-court charge. Journalistic integrity requires the management of possible ethical dilemmas in day-to-day encounters. For example, there might be a delicate or classified matter with defence or national security implications which needs to be balanced against other countervailing factors like selling copies of a publication and the community’s right to know about a situation, event or scandal.

It can be a very difficult balancing act, indeed. As the preamble to the code of ethics of the American Society of Professional Journalists states:

The duty of the journalist is to further those ends by seeking truth and providing a fair and comprehensive account of events and issues.

This bill strikes a more realistic and acceptable balance between those two competing ideals. It introduces a trial and pre-trial privilege in criminal and civil proceedings for communications that are made confidentially to journalists. These changes stem from recommendations made early last year by the Australian, Victorian and New South Wales law reform commissions. This will allow for greater uniformity between states and territories, an objective we are forever seeking in this great federated nation of ours. All three law reform commissions recommended this amendment, which is in line with the current situation in New South Wales. This very important refinement by the Commonwealth in federal proceedings will ensure greater uniformity, as the protection of members of the journalistic profession and their sources is not an issue that should be defined by state boundaries or borders. Importantly, the Standing Committee on Attorneys-General is looking at further ways to achieve more uniformity in the area of the law of evidence.

Australia’s great democracy rests on the bedrock of three institutional pillars: our parliament, with its tradition of robust debate within the Westminster tradition; a free judiciary; and a free press. The Prime Minister quite rightly called this trilogy:

… the real title deeds of our democracy, a political inheritance that has given us a record of stability and cohesion that is the envy of the world.

Of course, a free, robust and sceptical press is one of this country’s greatest democratic beacons.

We as members of parliament—or, in colloquial terms, as politicians—can recount all the times when we feel that we may have come under unnecessary attack or media bias. My colleague the member for Barker spoke in defence of journalists in a way that many in this place might think romanticised their vocation beyond recognition. The member for Banks promptly disagreed with him. None of us believe that this area of employment is perfect or that any journalist is above criticism. But most of us on both sides of the House agree, at the very least, on a journalist’s ability to protect his or her sources when reporting a story of interest to the community that goes to the heart, I presume, of their passion for their profession. Indeed, we have come a long way since Napoleon’s groundbreaking prognosis:

Four hostile newspapers are more to be feared than a thousand bayonets.

I note from the previous contributions of Labor Party members to the debate that the opposition support the thrust of the legislation and that they have some additional issues and contributions to make. If that is still the case, I welcome that. The significant amendments to the Evidence Act that this bill will achieve go a long way towards enhancing and protecting free press and free speech in Australia. For those reasons, I commend the bill to the House.

Peter Andren (Calare, Independent) Share this | Link to this | Hansard source

As a former member of the journalistic profession, the Evidence Amendment (Journalists’ Privilege) Bill 2007 holds more than the usual interest for me. The arrival of this particular piece of legislation and the Attorney-General’s professed concern for ensuring a free press are more than interesting because they coincide with the launch of a campaign by leading media executives, representing a broad cross-section of our media, who are concerned at the squeezing of Australia’s right to know. These executives representing News Ltd, Fairfax, ABC, Free TV, SBS, Commercial Radio Australia, AAP and Sky News are deeply concerned by the state of free speech in Australia. In a joint statement, the eight media leaders say:

Our freedom to express an opinion, honestly and openly, is under threat.

Equally, our ability to report to Australians facts about how they are governed and how our courts are administering justice is being severely hampered.

They state that the latest worldwide press freedom index rates Australia 35th, behind Bolivia and South Korea, and equal with Bulgaria.

The group intends to commission an independent report to show Australians how much they are not allowed to know. This will cover freedom-of-information laws—almost an oxymoron, according to the group—and will look at the tendency of courts to restrict access; the risk of journalists facing jail even when acting in the public interest; the impact of new sedition laws on freedom of expression and the performing arts; the risk of Australians being detained without trial and the reporting of such being illegal; and whether defamation laws achieve the right balance between disclosure and protection of individuals. That is just some of the brief for that study.

How did we get to this point? I believe much of it is due to the web woven by this government and this Attorney-General post September 11, beginning with the disgraceful Tampa episode. Then began a quite deliberate construction of not a security alert but an insecurity alarm that quickly influenced all government responses to the post September 11 environment. Asylum seekers arriving by leaky boat became likely terrorists. From that point, there was no going back and Australia became an epicentre of the war on terror. Fridge magnets put neighbours on edge about neighbours. Sedition was dusted off and applied as in wartime. The end result of all this is the concerns I have detailed and the reality of a public servant being convicted for leaking information about serious lapses in airport security—lapses that led to a $22 million upgrade of Sydney airport. The man should have received an OAM last Monday.

Another result of this exploiting of insecurity was a raid on a Sydney newsroom by federal agents trying to trace a leak to a journalist. In that respect, it is difficult to reconcile the concern of News Ltd about suppression of coverage and opinion and threats to journalistic silencing with its lead editorial yesterday in the Australian, in which it made an attack on those who dared question other silencings of dissent. It said:

… claims that Australia is becoming an increasingly authoritarian state where dissidents are silenced …

…            …            …

… would seem difficult to sustain at a time when the marketplace of ideas has never been so crowded.

It goes on:

Blogs and internet chat rooms … The Monthly, New Matilda and The Australian’s own Australian Literary Review are providing new platforms for discussion while established journals such as Quadrant and the Griffith Review are reaching new readers … The queues outside venues at this year’s Sydney Writers Festival, record attendances at similar writers festivals around the country … are public expressions of a confident, mature democracy in which informed debate flourishes.

It goes on to criticise Robert Manne:

In his contribution to Silencing Dissent, Robert Manne claimed the nation was headed on the “increasingly authoritarian trajectory of the political culture” under Mr Howard.

Some of that may be regarded in many quarters as an exaggeration, yet the sort of tones and sentiments expressed by News Ltd executives in the group of eight who have voiced these concerns about the suppression of free speech and are seeking a proper investigation of it would seem to be having a bet each way when it suits—when it becomes a political debate. But whether it is left, right, centre or whatever, the fact remains, and it has been quite openly stated by those respected media leaders, that we face a threat in this country, and I would say it has been born of the climate of insecurity that has been built around the very convenient war on terror, which is never ending, all embracing and all threatening, and the danger is that it is all silencing in its extreme manifestation.

Apart from security issues or insecurity-exploiting issues, we have seen the raid on an Indigenous newspaper by Federal Police seeking information about a public servant, and a story on Indigenous community violence. Moving to state governments, the New South Wales government will not release information on how much water it allows Lake Cowall goldmine to take from the Murray-Darling aquifer. Going back to the federal government, it will not release information on the First Home Owners Scheme, including on wealthy people who fraudulently claim the $7,000. Of course, in the micromanagement of our real involvement in the war, the military will only cooperate with embedded journalists. On this latter point, media operators should refuse to cooperate in any blatant propaganda exercises. It is as simple as that.

In general, the public right to know must always be tempered by the need to protect the individual, and this extends to the absolute requirement that the media not stir racial vilification. It is one thing for the media to protest about all of the concerns outlined by the ‘Media Eight’, but I would argue the Cronulla riots stand as a monument to the abuse, by elements of the media, of the racial vilification statutes that we have on the book—state and federal—in this country.

This bill introduces a privilege that will protect confidential communications between journalists and their sources. We are told that the legislation will require courts to give consideration to the protection of interests, including freedom of the press and the public’s right or need to know. Why do we really have to legislate for this protection? Surely it only underlines the need for constitutional recognition of the right to free press and free speech. The fact that we need to legislate here suggests how dangerously balanced our freedoms are and how challenged they have been in recent times, especially in the past decade and more especially post September 11 in the age of insecurity and on the never-ending war footing in the fight against terror. And there is the risk of a never-ending generalised vilification of Moslems and the Moslem faith by some sections of our community, including some so-called community, media and political leaders.

This bill is really about commonsense when it comes to most legal matters, including its family law ramifications. The greatest weight a court will give in deciding what is allowable and what is not relates, of course, to national security. Under post September 11 circumstances that would be easily understood; but, given the restraints on freedom to know detailed by the media organisations, we come back to square one: just what is national security?

The minister assures us that this bill represents a significant amendment to the Evidence Act and will assist the courts to balance the interests of justice in needing to make evidence available with the public interest of ensuring a free press. This sounds fine in its reading, but, as they say, the proof is in the pudding. There are many in the media and the public who doubt this will lead to a real addressing of the concerns expressed so clearly by those media organisations who grieve over recently legislated constraints in this country that have harnessed free speech and a free media. Yet, in supporting them in that, I say that they cannot afford to apply double standards, as I think they have done in articles like that Australian leader yesterday, where they pick and choose just who is allowed to have free speech, perhaps who is allowed to grieve the loss of free speech and who is allowed or not allowed to be concerned about the very suppression of free speech that they are arguing about. I am not talking about all media leaders; I am particularly referring in this case to the article in the Australian.

We cannot pick and choose our morality on this. Having two journalists facing jail over publication of information on veterans affairs matters is absolutely outrageous, but the so-called and all-embracing war on terror will no doubt test the extent to which this and any future government is really serious about the public interest and a truly free media.

Alan Griffin (Bruce, Australian Labor Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I rise today to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2007. I have some brief comments to make on this bill in my role as shadow minister for veterans affairs. Labor support this bill. Our view is that this is a welcome bill but that it does not go far enough. For this reason I am happy to support the amendment moved by the member for Barton.

This bill amends the Evidence Act 1995 by introducing a privilege, at the trial and pre-trial stages of civil or criminal proceedings, for communications made in confidence to journalists. The bill gives the court discretion in this matter, requiring it to exclude evidence where the nature and extent of the likely harm to a protected source outweighs the desirability of the evidence being given. This is an important reform that helps address the conflict that journalists may at times be forced to face. Currently there is a conflict between their ethical and professional duty to not disclose their source and their legal duty to assist the court.

The bill is modelled on the New South Wales Evidence Act 1995. However, there is a big difference in that the New South Wales act allows for a general scheme of protected confidence, while this bill is limited to journalists only. The bill, in focusing on only journalists’ privilege, does not offer any other protections for confidential communications among other groups or professions. Broader reforms are still needed in this area in order for increased transparency of government actions. However, as this government has shown in the past, unless it suits its specific political agenda, it is extremely averse to introducing any reforms that would allow for greater transparency of its actions.

The bill has been introduced by the government following recommendations from the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission in the report entitled Uniform evidence law, which was tabled in this place on 8 February 2006. In their report, under paragraph 15.15, the commissions had the following to say on journalists’ sources:

Since the publication of DP 69, the issue of protection of journalists’ sources has received significant media attention. Under the common law, courts have consistently refused to grant journalists a privilege or lawful excuse under which they can refuse to reveal their sources. The journalists’ code of ethics prohibits a journalist from revealing a source once a commitment to confidentiality has been made. At the time of writing, legal proceedings had commenced against two Herald Sun journalists for protecting the source of leaked government documents regarding changes to veterans entitlements. The Attorney-General of Victoria has indicated his support for a uniform national approach to journalists’ sources. The Australian Government Attorney-General has also announced that the issue would be considered by the Government.

The specific reference made to the two Herald Sun journalists in this paragraph is extremely relevant to the bill we are considering today. The journalists are Michael Harvey and Gerard McManus. They are being prosecuted for contempt of court for refusing to answer questions relating to their publication of material from a source within the Department of Veterans’ Affairs. The case relates to an article they wrote on 20 February 2004 entitled ‘Cabinet’s $500 million rebuff revealed’. In that article they reported on confidential documents that showed that the government had agreed to just five out of the 65 recommendations for change produced by the Clarke review of veterans entitlements. It was an article that exposed this government’s measly response to this report—a response that had been signed off by the Prime Minister, the Treasurer and the then Minister for Veterans’ Affairs. Their article and the public backlash that followed helped to result in some government backflips.

I have every respect for both Michael Harvey and Gerard McManus for breaking this story. This was a story of national significance and one that was extremely important for the veterans community. The public interest in this story was clear. However, for doing their job, these two journalists are now potentially facing a jail term. This bill will, hopefully, help us to ensure that we do not have another situation arise where two highly respected and professional journalists are threatened with jail for breaking a story of significant public interest and choosing on ethical grounds to maintain the confidence of their source. In respect of Gerard McManus and Michael Harvey, I hope this bill sends a clear and unequivocal message to the courts about the Commonwealth parliament’s intention in relation to a privilege being applied to journalists.

It would be remiss of me if I did not say a few words here about the fate of Mr Desmond Kelly, the senior public servant from the Department of Veterans’ Affairs who was alleged to have leaked the confidential material to Harvey and McManus. Mr Kelly was pursued with great zeal by a government that had been fully exposed and rightfully embarrassed by its shameful response to the Clark report. Mr Kelly was suspended without pay and spent two years in courtrooms until he was acquitted by the Supreme Court of Victoria Court of Appeal on 17 October last year. Following his acquittal, Mr Kelly’s pay was reinstated, but he remains suspended from the department. He was informed that the department would still be undertaking a code of conduct investigation. Following this, Mr Kelly decided to terminate his employment with the department in February of this year.

Despite being acquitted by the courts, Mr Kelly has never been paid the money he would have been earning from the Department of Veterans’ Affairs during the two years he spent in court. Instead, he has now resigned from the department. He has been left with no money for those two years and with significant legal bills, all despite being acquitted.

Labor are committed to greater transparency and accountability in government. At the recent national conference, our national platform was amended to include the following:

Labor will:

• Legislate for proper freedom of information laws that enable Australians to access appropriate information about government activities
• Move to implement the ALRC recommendations on sedition laws
• Provide shield laws for protecting confidential sources and whistle blowers
• Review laws that criminalise reporting of matters of public interest

The last of these obviously relates most directly to the bill we are considering today and the specific case that I have been discussing. I sincerely hope that the passage of this bill will help to ensure that situations such as the one that both Gerard McManus and Michael Harvey face can be avoided in the future. While noting that the bill does not go far enough, I commend the long-overdue reforms contained within this bill to the House and I wish it a speedy passage to the other place.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I thank the members for Barton, Barker, Banks, Kooyong, Wills, McMillan, Denison, Indi, Calare and Bruce, who have contributed to this debate. The Evidence Amendment (Journalists’ Privilege) Bill 2007 amends the Evidence Act and introduces protection for journalists and their sources. The amendments will ensure that a judge will have the ability to exclude evidence which would otherwise disclose information communicated to a journalist in confidence. In reaching such a decision, the judge will be required to consider a number of factors detailed in this bill.

It is important that members are aware that the amendments are based on a model recommended by the Australian, New South Wales and Victorian Law Reform Commissions. These commissions undertook an 18-month review of the law of evidence and undertook consultations with a wide range of stakeholders. I understand that submissions were received from key media groups including the Australian Press Council as well as public interest groups, legal bodies and the judiciary. I endorse the comments made by the member for Banks on the excellent work undertaken by those commissions.

There has been, of course, as is often the case in relation to these matters, some misinformation in recent days—that the introduction of this bill would mean that the Commonwealth is backing away from its commitment to Uniform evidence law. Let me say that the reason for this bill is to ensure that the court knows—as has been represented by the Solicitor-General—as it is considering penalties in relation to the journalists that are before it, that the Commonwealth’s view is that a judge ought to have a discretion to ensure that, in an appropriate case, broader public interest factors are entertained which might mean that a penalty, particularly one of penal servitude, will not be imposed.

I might say that, given that the matter of the two journalists is before a Victorian court, where the Victorian Evidence Act is dealing with the issue, it is equally important that the Victorian government demonstrates its commitment to this change by legislating quickly. The Commonwealth’s intention is clear, but the matter needs to be dealt with expeditiously so that the court is aware that the matters that have been represented as to our intention to legislate are known by the fact that the legislation has in fact secured successful passage. I welcome the assurances that have been given by the opposition that in the other place they will assist in securing effective and rapid passage.

This does not mean that model evidence laws are not to proceed. The fact is that this matter is being addressed in the context of the Standing Committee of Attorneys-General. It is desirable that laws in these areas be uniform in character. It is more likely that we are going to achieve that outcome if the standing committee’s approach is followed—that is, it has had consideration by an expert reference group, that group is making comments, the standing committee will be informed by its advisers and that information will assist in ensuring that the standing committee is well informed. I hope that we will see the Standing Committee of Attorneys-General reach an agreement shortly, in relation to the wide range of other issues that have been canvassed in this debate, on where it is of the view that some form of privilege ought to be available.

I might say that that is separate from a broader range of other issues relating to legal professional privilege which are before the Law Reform Commission at this stage. However, as I have stated in this place, the issue of protecting journalists was too important to wait, given the potential for further delays in the SCAG process—that is, the standing committee process. Yet, as I have also made clear in my second reading address, it remains my hope that I will be bringing forward a second bill which will implement the remainder of the government’s response to Uniform evidence law when we have had an opportunity, in the standing committee process, to fully consider it. I told my state and territory colleagues when I met with them last April that this was the approach that we would be adopting. So this bill is in no way a reflection on SCAG; they were aware that the government’s view was that this matter ought to be dealt with by legislation, in isolation from the other factors, as early as possible.

I am disappointed that the member for Barton, notwithstanding Labor’s support for the bill, felt it necessary to move a second reading amendment which is beyond the scope of the issues to be addressed in this bill and the recommendations made by the law reform commissions. I draw the member for Barton’s attention to the Public Service Act 1999, which, in relation to whistleblowers, already protects from discrimination and victimisation federal public servants who report breaches of the Australian Public Service code of conduct. There are also mechanisms in place for complaints to the Commonwealth Ombudsman about actions or decisions of Commonwealth agencies. In other words, if whistleblowers, in the public sector role that they are fulfilling, believe that something has been dealt with inappropriately, they have appropriate mechanisms to be able to report on those matters to the Public Service Commission or to take the matter to the Ombudsman if they believe that people have been derelict in their responsibilities as public servants.

It is not a question of saying, ‘I can get a cheap headline in a newspaper one day.’ The question of the conduct of officers is not such that they have a broad discretion to wake up one day and say, ‘Today, I feel like I want to be a whistleblower, and I’m going to leak a whole lot of material’—material which it may not be in the public interest to disclose in that way. I make the point that the disclosure of information is not always in the public interest. In some instances, disclosure may be an infringement of an individual’s privacy. It can damage reputations. It can be prejudicial to national security. If it relates to budget issues, it would be quite irresponsible to put information of that sort out into the public arena on the basis that you think you have a cause. For that reason—because there are appropriate steps that can be taken by a public servant who is legitimately concerned about issues to explore those issues—the government will not be supporting the proposed second reading amendment.

I am aware that members of the opposition have used this debate to make a wide range of claims about a wide range of other issues. In what was meant to be a bipartisan issue, it is disappointing that that has been the case, but I do not suppose that I should have been at all surprised. As mentioned earlier, I do welcome the opposition’s support for the bill in principle. It is a significant amendment to evidence law, and it will provide an avenue to protect confidential communications between journalists and their sources. I commend the bill to the House.

Alex Somlyay (Fairfax, Liberal Party) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Barton has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The immediate question is that the words proposed to be omitted stand part of the question.

Question agreed to.

Original question agreed to.

Bill read a second time.