House debates

Thursday, 14 May 2009

Evidence Amendment (Journalists' Privilege) Bill 2009

Second Reading

Debate resumed from 19 March, on motion by Mr McClelland:

That this bill be now read a second time.

11:54 am

Photo of Sussan LeySussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | | Hansard source

I rise to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2009. I refer the House to the report of the Senate Standing Committee on Legal and Constitutional Affairs on this bill, which was tabled on 12 May. The coalition acknowledges and endorses the stated objectives of the bill. However, in its current form the bill falls far short of achieving those objectives. The coalition opposes this bill in the House and will move amendments in the Senate.

Respect for freedom of speech has been an absolute hallmark of our legal system and indeed of Liberal Party history and values, and a free and fearless press underlies our democracy. I would like to quote from an article in the Australian by Caroline Overington—’State of secrecy’. She says:

The ordinary member of the public probably has no idea how difficult it is to get even the simplest information out of government.

Under existing law and protocol, anybody employed by the government—that can mean a nurse, a police officer or a bus driver—is threatened with disciplinary action if they speak to the media.

…            …            …

In recent weeks, the Rudd Government has busily been insisting that it has, or is, delivering on its promise to make government more transparent. Last Friday, for example, Attorney-General Robert McClelland congratulated himself for introducing to parliament the Evidence Amendment (Journalists’ Privilege) Bill 2009, otherwise known as the Government’s shield laws for journalists.

McClelland says the law will provide “much-needed protection for journalists”, but it won’t do any such thing. It won’t give a journalist the right to protect their source and it won’t place the onus on the government (or any other agency) to explain why a source should be exposed.

All the change will do is give judges some discretion when dealing with journalists who won’t reveal their source.

That is the problem: the approach of this bill is to amend a regime that relies entirely on judicial discretion as to whether privilege attaches to confidential communications between journalists and their sources. Under the regime of guided judicial discretion there can be very little certainty as to whether a court will ultimately compel disclosure of those communications or identification of the source.

The law in this area has moved relatively slowly until recent times. Not only here but in the United States, Britain and New Zealand there have been examples of journalists who have opted to be prosecuted, fined or even jailed rather than betray their ethical and conscientious undertakings to their sources. All members of the House will be aware of recent examples in this country.

The right of someone to withhold information from a court must be carefully considered. After all, it is the purpose of a court to ascertain facts and there should be as few obstacles to that process as possible. The approach that has always been taken in the common-law world is that the facts should be made available, and compelled where there is a resistance to that obligation, unless there is some overriding public interest in protecting material from disclosure. Thus, communications between lawyers and their clients have traditionally been protected because it is necessary for the administration of justice that people can be completely frank with their legal advisers. The common law has protected husbands and wives from testifying against each other, because society respects the sanctity and privacy of the home.

Our society also recognises that the public interest and our public institutions are served and strengthened by the free communication of facts and opinions by the news media. We also recognise that there are circumstances in which the source material is provided to journalists in circumstances hazardous to the provider—whether to their personal safety or to their other interests. Sometimes that material is provided despite the existence of other legal obligations not to provide the material. We recognise, as we do in relation to legal professional privilege, that the public interest in free communication is subject to equally valid competing considerations and cannot be absolute.

The laws relating to the relationship between journalists and sources have sought to strike a balance between those considerations, to be weighed by a judge as each claim arose. The opportunity has now arisen in this place to revisit the way we try to strike that balance. A similar inquiry is underway in the United States. Recent changes have been made in the United Kingdom and New Zealand. The approach there has been to seek to provide some certainty in advance. This is nearly always a preferable course. It is a course that found sympathy in the dissenting report of the Liberal senators on the Senate Standing Committee on Legal and Constitutional Affairs. Rather than our making piecemeal adjustments to the existing regime, now is as good a time as any for us to revisit the test in its entirety and provide some certainty.

In conclusion, the Liberal senators have proposed that—as is the law in New Zealand—where there have been confidential communications between a journalist and a source, a court may not order disclosure of those communications unless it can be established that the public interest in the disclosure outweighs both any adverse effect on the source or any other person, and the public interest in the communication of facts and opinion to the public by news media. This is the test that is favoured by our side of the House.

12:00 pm

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party) Share this | | Hansard source

It is a curious position that we are faced with here in that the member for Farrer, representing those opposite, has now indicated—apparently basing her speech on the report of the Senate Standing Committee on Legal and Constitutional Affairs, which contains a section written by the Liberal senators who are members of the committee—that there are to be amendments moved in the Senate to the Evidence Amendment (Journalists’ Privilege) Bill 2009. We are told that we have to await those amendments to see what the detail is as to exactly how the Liberal Party proposes that the balance should be differently struck.

It is striking, Mr Acting Deputy Speaker, because as recently as 2007 in this place the then Attorney-General, the member for Berowra, introduced amendments to the Commonwealth Evidence Act that, according to the member for Berowra, were an appropriate balance of the conflicting—and recognised as conflicting—public interests which arise here. I will come back to this, but it is also striking that, despite the Liberal senators stating in categorical terms in their passage in the report of the legal and constitutional affairs committee that they did not favour protection for journalists’ sources which is reliant on the exercise of discretion, we now hear from the member for Farrer—and indeed we read this in the conclusion expressed by the Liberal senators in the Senate report—that all they really want, it would seem, is a different striking of the balance. It is worth putting this on the record, Mr Acting Deputy Speaker.

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

I am loath to interrupt the honourable member for Isaacs, but the correct means of referring to the Deputy Speaker is as Deputy Speaker and not Acting Deputy Speaker.

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party) Share this | | Hansard source

I thank the Deputy Speaker for the correction. What the Liberal senators said was this:

Liberal senators agree that the Bill, and future legislation purporting to strengthen journalist-source confidentiality, should do more than maintain the status quo. Liberal senators do not consider a journalists’ protection reliant upon the exercise of a judicial discretion as a ‘true’ form of protection as there is no right for journalists to resist a direction from the court to disclose the identity of a confidential source.

As I have indicated, it is curious that in their recommendations we see nothing that suggests that the exercise of judicial discretion should be removed from the legislative scheme to protect journalists’ sources, but rather a suggestion that not only should the protection be broadened to a similar basis as that used in the New South Wales Evidence Act, which protects professional confidential relationships rather than merely journalists’ sources, but also there should be:

… a rebuttable presumption in favour of journalist-source confidentiality.

That is not in any sense a proposal by the Liberal senators in their report that there should not be a judicial discretion to be exercised in the exercise of protection of journalists’ sources. I say again that we will have to wait to see how it is that the Liberal Party, jettisoning the position that it adopted as recently as 2007 as to the appropriate balance for journalist shield laws, is now saying, through its senators, that it does not wish to have a system that includes a judicial discretion and saying in this House, through the member for Farrer, that amendments are to be moved in the Senate. We will have to wait to see what those amendments say.

I wanted to see today whether it is possible to put some of the extraordinarily confused commentary that we have seen about journalist shield laws, and about the interaction between journalist shield laws and whistleblower protection schemes, into a somewhat clearer context. It might be that that task is going to prove too difficult, but it is worth attempting because it seems to be recognised by even the Liberal senators, by Senator Xenophon, who participated in the report, and by the Australian Greens that this is an area of considerable complexity. It is an area in which striking the appropriate balance is difficult, and one in which, dare I say, it is appropriate for this parliament to proceed with caution.

I would start by saying that there are very few absolute immunities in the sense of immunity from criminal prosecution and from civil proceedings in Australian law. There is, of course, the longstanding absolute immunity that is enjoyed by members of this House and of the Senate from criminal and civil proceedings. That is an immunity that this parliament has inherited from the United Kingdom, an immunity that has been enjoyed since 1688 by the members of the parliament of the United Kingdom, having been included as article 8 of the Bill of Rights 1688. There is another absolute immunity, which would be the privilege attached to court proceedings and judges. Or one could refer to the absolute privilege that attaches to communications between clients and their lawyers. But much more usually in Australian law immunities and privileges are qualified. An example would be the qualified privilege which attaches to speaking out about government and political matters, which might provide a defence from proceedings for defamation. A further example would be a protection that applies, again in defamation proceedings, to reports to police or to other socially useful communications that are recognised by the law as being appropriately privileged.

In relation to journalists’ sources the common law of Australia has up until now steadfastly declined to recognise a privilege for journalists. There are some very well known judicial decisions which express that refusal to confer immunity on journalists in respect of disclosure of their sources. One of the best known is a 1940 decision by Sir Owen Dixon before he was Chief Justice, but sitting on the High Court, in a case called McGuinness v the Attorney-General of Victoria. It is worth recording what Sir Owen Dixon said on the subject because it very directly states the position that has been adopted by Australian courts for very many years. Justice Dixon said:

No one doubts that editors and journalists are at times made the repositories of special confidences which, from motives of interest as well as of honour, they would preserve from public disclosure, if it were possible. But the law was faced at a comparatively early stage of the growth of the rules of evidence with the question how to resolve the inevitable conflict between the necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person. Except in a few relations where paramount considerations of general policy appeared to require that there should be a special privilege, such as husband and wife, attorney and client, communications between jurors, the counsels of the Crown and State secrets, and, by statute, physician and patient and priest and penitent, an inflexible rule was established that no obligation of honour, no duties of non-disclosure arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box. Claims have been made from time to time for the protection of confidences to trustees, agents, bankers, and clerks, amongst others, and they have all been rejected.

Moving forward, that position has been maintained by Australian courts, and one could look at a case called John Fairfax and Sons v Cojuangco. This 1988 decision of the High Court where Chief Justice Mason and Justices Wilson, Deane, Toohey and Gaudron restated the opposition of the common law to conferring any kind of absolute immunity or absolute privilege on journalists. It was a case concerning the disclosure of a journalist’s source. Again starting with a lack of doubt, their honours had this to say:

No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information. It stands to reason that the free flow of information would be reinforced, to some extent at least, if the courts were to confer absolute protection on that confidentiality. But this would set such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media.

That is why the courts have refused to accord absolute protection on the confidentiality of the journalist’s source of information, whilst at the same time imposing some restraints on the entitlement of a litigant to compel disclosure of the identity of the source. In effect, the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice.

There you see the balancing that the courts have engaged in, moving by 1988 to a situation where at least it was possible for a journalist to withhold the identity of the source of information that the journalist had used and published for at least some time in the course of litigation.

Might I say also that the premise that perhaps underlies the proposition that it is always the case that if journalists’ sources are disclosed it will necessarily lead to the drying up of such confidential communications is not one that has been uniformly accepted by Australian courts. I was struck that in the sentencing judgment of His Honour Chief Judge Rozenes in the County Court of Victoria in, it would seem fairly reluctantly, imposing a penalty on the journalists McManus and Harvey in 2007, Chief Justice Rozenes quoted from a judgment of Justice Perry in the South Australian Supreme Court about this on the same subject, to this effect:

I must say that I have considerable hesitation in accepting the proposition that obliging journalists to disclose their sources of information has a tendency to restrict the flow of information which otherwise might reach them. The law has been so clear for so long that it is a reasonable assumption that potential sources of information already realise that any such undertaking must yield to the requirements of the interests of justice where those interests are regarded by the courts as paramount.

I have dealt with that matter at some length simply to say that this is the context for considering the journalists’ shield or journalists’ privilege proposal which is contained in the Evidence Amendment (Journalists’ Privilege) Bill 2009. At common law there is no protection or lawful excuse under which a journalist can refuse to answer questions, and until the New South Wales Evidence Act was amended in the late 1990s to include, in sections 126A and 126B, a ‘confidential relationship’ privilege there was no state or federal law that provided any statutory protection either.

This subject has been debated at very considerable length in recent years. I note that part of the debate has included a suggestion that whistleblowers’ protection and journalists’ shield laws are closely connected. I would say that that is so only if one sees whistleblowers entirely through the prism of disclosure through the media. The House of Representatives Standing Committee on Legal and Constitutional Affairs—the committee, Mr Deputy Speaker Slipper, of which you are the deputy chair—in a report tabled in February in this House proposed a comprehensive whistleblower protection scheme. It has been welcomed by many interested groups, including the Community and Public Sector Union, whose members would be most directly affected. That scheme proposes to protect disclosures of wrongdoing and maladministration in the public sector, and in particular protection for reports within an agency and protection for reports to integrity agencies outside the particular agency, like the Commonwealth Ombudsman. It also proposes limited protection for disclosures that go through the media. That is a reflection of the committee’s view that disclosure to the media is not the preferred method of disclosure for most public servants and that a procedure of internal disclosure and investigation is more likely to give effect to the purpose of all public interest disclosure schemes, which is to eliminate wrongdoing and maladministration.

Perhaps understandably, some of the media commentary has focused on proposals concerning the protection of disclosure to the media and has suggested that there ought to be protection for disclosure to the media which covers a larger range of matters. The government will be considering those comments and submissions in formulating the legislation in coming months, but it is important to understand that only part of the whistleblower protection scheme is concerned with disclosure to the media. There is no scheme of whistleblower protection in the developed world which gives blanket protection to disclosures made by public servants to the media and I do not think that anyone would suggest it. The question is about where to strike the balance.

Journalist shield laws are concerned with protecting all sources of information that is provided to journalists, no matter what the subject matter is. While it may be the case that some journalists’ sources will be public servants who wish to disclose maladministration and wrongdoing in the public sector, journalist shield laws have much wider reach than that. So there is a connection between the two proposed laws but it is a limited one. Whistleblower protection schemes for the public sector need to focus on administrative processes and need to produce a workable regime for reporting and investigation of wrongdoing. Journalist shield laws, being of general application, are not focused on the public sector alone or only on public servants as potential sources. What the two proposed laws—that is, whistleblower protection schemes in the public sector and journalist shield laws—have in common is a need to balance competing policy objectives. It is obvious that there is room for debate about where the balance should be struck. What does not seem to be an issue—and it is the only manner which anyone has come up with for providing protection for journalists’ sources—is that it will involve the exercise of judicial discretion.

The question of protection of journalists’ sources, a shield for journalists, was considered at considerable length by a joint inquiry conducted by the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission which reported in December 2005. Part of what concerned those law reform commissions was the need for uniformity of evidence law across Australia, which of course is highly desirable but has proved to be very difficult to achieve. The recommendations of that 2005 joint report by the law reform commissions were for the extension of the notion of professional confidentiality, or protected confidence privilege—not confined to the protection of journalists’ sources but, rather, directed at all professional confidential relationships. The recommendations of the joint report of the law reform commissions were very much based on continuing judicial discretion and on listing factors which are appropriate to be considered by a judge in considering whether or not to direct the disclosure of a journalist’s source.

The Liberal Party in government, in 2007, did not accept the recommendations of the joint report of law reform commissions, and that is why we have in the Commonwealth Evidence Act the provision which is proposed to be amended by the bill now before the House. It would appear that the provision, introduced by the then Liberal government in 2007, is now condemned by those opposite as being inadequate. Again, we will have to wait for reasoned argument and explanation and, indeed, will need to look at the amendments that are produced in the Senate by the Liberal Party, but it would seem, listening to the member for Farrer, that on no view is the Liberal Party now supporting the position that it adopted only two years ago, in May 2007. It remains the case that consideration of an appropriate journalist shield is about getting the balance right. This bill does get the balance right. Even the Right to Know coalition, in the submission that it made to the Senate Standing Committee on Legal and Constitutional Affairs, noted that this bill represents ‘significant and welcome improvement’. (Time expired)

12:20 pm

Photo of Alex HawkeAlex Hawke (Mitchell, Liberal Party) Share this | | Hansard source

I rise today to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2009. I apologise to the group of Young Liberals and ALSF members in my office, who are watching this broadcast, who I had to leave at short notice. I rise today on behalf of the Liberal Party because the Liberal Party is the party of the individual, the party that supports free speech and free-speech measures. Indeed, in this place we will be supporting measures which make progress towards a better free-speech society. This legislation before the House is inadequate in its attempt to deliver a system for journalists which provides a privilege for them and which will be a workable and sustainable model that will deliver the outcomes that the government and, indeed, all of the interest groups in Australia are seeking at the moment. It was interesting to note the points the member for Isaacs was making when he was referring to the coalition as somehow seeking a test of absolute privilege. I want to confirm in the House that we are not seeking a test of absolute privilege; we are simply seeking to implement a system similar to what is already in place in countries like New Zealand and other parts of the world.

The coalition acknowledges that the stated objectives of this bill in its current form fall far short of achieving the objectives which the government has set out. We will be proposing amendments in the Senate. I think there is a problem with the approach of this bill, in that, while it seeks to amend a regime that relies entirely on judicial discretion as to whether privilege attaches to a confidential communication between a journalist and a source, it may well apply in other areas as well. If you do not take the time in your legislation and your mechanisms to define adequately what you are talking about, you will not meet your objectives. And that is one of the problems that we have seen with this proposed legislation here. Things such as the definition of a journalist are not adequately defined. Indeed, with all of the mechanisms that are available to people today, especially to younger people—blogs, online communications, all of the facilities and features available on the internet—it is possible to perform the functions of a journalist without necessarily being one. We think there would be a big role in this space for that to be more clearly defined. That would be something that we would need to know in advance of any proceedings.

This issue has arisen over some time. There have been some disturbing cases in recent times in Australia which have disturbed many members in this place and many people in the broader community. The idea that a journalist could be sent to prison simply for refusing to reveal information which does not go to the heart of a national security matter and does not seriously threaten our country’s stability is one most people would reject. There is obviously a need for us to act and move in this space. The law has, I understand from all of the reading that I have done, moved quite slowly in this space, when the world has moved at quite a fast pace. The rate of communication, and the depth and breadth of all the ongoing journalistic activities in today’s world, means that we have to move faster and we have to go further. Here we are today debating a piece of legislation which is an attempt to deal with these very serious issues.

We have seen many cases overseas of journalists who have opted to be prosecuted, fined and jailed rather than to betray their conscience or their ethical undertakings. That is something that I sympathise with. The approach that has been taken in common law is that the facts should be made available, and compelled where there is resistance to that obligation, unless there is some overriding public interest in protecting material from disclosure. That is entirely proper. If there is some overriding public interest, then obviously material may be required to be disclosed. However, the mechanism you use to determine what is in the public interest—all of the communications that happen between journalists and sources, lawyers and clients, which have traditionally been protected—is now something that we need to address and consider so that we can continue to have a robust media and a robust commentary on public life and public activity.

It is a truism that our society has been strengthened by free communication, facts and opinions in the news media, even though we may not always agree with many of the sentiments expressed in the media. While, as an individual member, I have sometimes personally suffered from people using the auspices of free speech to make some erroneous comments and interpretations of events, I can say that I would absolutely stand up in this place to say that they have the right to make some of those claims and certainly to pass comment on them. The laws that relate to the relationship between journalists and sources ought to be balanced. They need to strike a balance in the consideration of the public interest and they need to be weighed up in that context. There could be a public interest, but there is also a right to confidential communication.

We see in other countries some serious attempts to address these issues. In the United States, they have put in place the ‘shield laws’—a new bill which is in the house at the moment, looking to address this issue—and we have seen recent changes made in the United Kingdom and New Zealand. The approach there was to provide some certainty in advance. I think this is an important point, which I will spend some time on. It is always preferable to have certainty in advance of these items. It is a course that has found sympathy in the dissenting report of the Liberal senators of the Senate Standing Committee on Legal and Constitutional Affairs, and I want to refer members of this place to those additional comments by Liberal senators. I think they have made some excellent points about strengthening this legislation, and I know that this will be subject to further amendment in the Senate.

Rather than making piecemeal adjustments to the existing regime, I think it would be better here to take the time and the effort to ensure that we revisit in its entirety the whole concept in the legislation, the test, and provide some certainty in advance. The Media, Entertainment and Arts Alliance pointed out—and I think it is quite true to say—that if you do not do that now, if you do not take the time to go as far as you can now, then you will be left attempting to get together all of the states and federal attorneys-general again. We will be back to this idea that the law has been quite slow to catch up with the reality of modern journalistic communications, and we will find that there will probably not be another opportunity in the near future to make further and better changes.

If you look at the additional comments by senators in the dissenting report, you will see that one of the proposals is that, as in New Zealand, where there have been confidential communications between a journalist and a source, a court may not order disclosure of these communications unless it can be established that the public interest in the disclosure outweighs both any adverse effect on the source, or any other person, and the public interest in communciation of facts and opinion to the public by the news media. That is the kind of test that would provide a clearer situation. Obviously that would mean that in advance journalists would be aware and more able to understand their obligations under the law. This would provide less conflict with the ethical and other considerations that a journalist has and it is somewhere where I think we can adapt from another jurisdiction something which has at this point proven to be quite a worthwhile test.

If we seek to be very partisan here today in this chamber and pass a law which does not go as far as it ought, and if we do not move as quickly as we can, I feel we will miss a big opportunity which may well have some very real consequences in the near future. Indeed, we have seen more cases in recent times and that trend may well be continuing. So if we leave this chamber and we leave the Senate without having thought about these issues and without have gone that extra yard in improving the government’s bill, we may well not be doing the right thing. I believe this test and these comments which have been provided by Liberal senators really would add value to this legislation and provide journalists with the certainty they are seeking. Journalists are certainly seeking the chance to go into arrangements with their sources and confidential communications with a higher degree of certainty than they have now. This certainly would go a long way to helping with that.

When you look at the international shield law regimes—for example, at the time of this report a bill was before the United States Senate—it is important to note that the kinds of requirements that they provide are quite substantial. That is something that I fear in this legislation as well. The concept that you need a stronger test, that you need more definition, is shown to us in these international shield law regimes, and it is something I think we should note. The idea that the member for Isaacs was promoting—that we are seeking some sort of absolute test of privilege—is absolutely wrong. That is not what we are saying. I want to be very clear to the House that we are not seeking some sort of absolute criteria or perfect test. I do not think that there would be a mechanism for anybody here to suggest one. That concept is a furphy to distract us from the idea that we need to have a stronger test in place or, as best we can, to provide some advance certainty.

I do not have more to add in relation to the detail of this legislation. I would simply say that, as a member of parliament who has been elected to this place to represent his constituency, I find that the media play a vital role in our democracy in Australia. They perform an essential function. Without them we would be poorer and our ability to function as a country would be lessened. Even though from time to time we are all quite cynical about the media in this place and we can be quite concerned about the way they cover events, we are all aware that the system will not work without an arbiter, a commentator or a source of dissent not simply from within the parliament but from outside the parliament. Therefore, it is incumbent on us, when faced with new challenges—such as new technologies, the fast pace of our society, the ability of journalists to seek and gather information from sources—that we act in a way that provides as much certainty as we can provide in law and that we ensure that the media remains vibrant, healthy and strong within our nation.

12:35 pm

Photo of Darren CheesemanDarren Cheeseman (Corangamite, Australian Labor Party) Share this | | Hansard source

I rise to speak on the change to the confidential relationship privilege provisions of the Evidence Act 1995. I do this because I think there is something here that is fundamental to our democracy. This is about an aspect of freedom of speech and the mechanisms we have to get facts and information out into the general public that otherwise might be suppressed, hidden or covered up. The Evidence Amendment (Journalists’ Privilege) Bill 2009 is about a part of the crucial matrix of checks and balances that go together to make up the fabric of our democracy.

We currently have a legal basis to provide a privilege at the trial and pre-trial stage of civil and criminal proceedings for communications made in confidence to journalists in certain circumstances. The Evidence Act 1995 provides for a professional confidential relationship privilege in some cases in court proceedings. This prevents the adducing of evidence that would disclose confidential communications made by persons to a journalist acting in a professional capacity or the contents of a document recording such a communication or information about the identity of the person who made the communication. Basically, there is a certain legal basis journalists can rely on to protect their sources in some circumstances. The privilege is granted at the court’s discretion but within quite restricted guidelines.

This bill gives greater flexibility to the judiciary and adds new factors which can be taken into consideration. Very importantly, the bill will allow the court to consider harm to a journalist’s professional reputation and their ability to obtain information if they are forced to reveal a source. That is a very important consideration for any journalist when it comes to a judicial crunch point and I will watch with interest how this is interpreted.

There are many in the public—and maybe even in this place—who see this issue as relatively trivial or hypothetical, but that clearly is not the case. It is not trivial and it is not hypothetical. According to the journalists association—the Media, Entertainment and Arts Alliance—six journalists have been threatened with jail over protecting confidential sources in the past 18 months. This is absolutely not hypothetical. Around this country today journalists are put in real positions and have to make real choices.

It is not trivial either. Some of the biggest and most important stories have been broken using confidential sources. The Queensland government under Sir Joh Bjelke-Petersen, which of course comes to mind, police corruption in New South Wales in the 1980s, the underbelly of Victoria and New South Wales over the past two decades—these are vitally important stories that go to the heart of public institutions and our democracy. These stories ran and collected momentum and some of the most powerful people in this country were either disgraced or jailed. It would be interesting to be able to rewind history and see what would have happened if journalists were not able to utilise confidential sources in their reporting of these stories and cases.

Australia has had some spectacular stories about corrupt politicians, public servants and businesspeople. I believe this is extremely healthy for our democracy. It is healthy because these stories are out there and convictions have resulted. In other countries these stories may have never seen the light of day. These politicians, these businesspeople and these public servants would still be running our country. An ex-Premier has been jailed and another disgraced, and the rotten core of the rampant New South Wales Police corruption in the 1980s was exposed in all its ugliness. I doubt a lot of these stories would have got out without the use of confidential sources.

Think about the good that came out of the work that Chris Masters did on the ‘moonlight state’, as he put it, on Four Corners. Phil Dickie from the Courier-Mail is another fearless journalist, and of course there are many others. Of course some of these stories did come out under the existing laws, but I think these stories and these exposures show how important journalism is, particularly investigative journalism.

Some of the current structure should be loosened to ensure that journalists are able to do their utmost in reporting these circumstances. Of course, in framing legislation like this there is no simple answer and it is a question of judgment and balance. I come down on the side that says that we should protect journalists to a greater degree to ensure society has access to information—important information in preserving our democratic state—that might not otherwise see the light of day.

Journalists today are put in very difficult positions by bodies such as the Crime Commission and anticorruption commissions around the nation. Often there are good public interest reasons for doing this. There can be good public interest reasons on both sides of the argument, but I do think it is important that more weight be given to the ongoing role of journalists and their credibility over time. When working previously for a union and for the City of Ballarat as a councillor and working now as a federal member of parliament I have come into contact with many journalists. I would rate a number of those journalists as some of the gutsiest people I have met. Think about the courage it takes to expose corrupt people from the underworld.

Currently, in exercising its discretion over whether a journalist may have a legal right to protect a source, the court must take into account certain matters and must give the greatest weight to national security. Journalistic privilege is automatically lost where a communication was made in the furtherance of the commission of an offence, fraud or act that attracts a civil penalty. This bill will remove the requirement that national security be given the greatest weight, though it will make it clear that it is still a factor the courts are bound to consider. This amendment will provide greater flexibility for the court by allowing it to determine the weight to be given to a particular risk of prejudice to national security based on the evidence before it. The greater the risk of prejudice to national security and the greater the gravity of that prejudice, the greater the weight the court will give to this factor and the less protection it will afford a journalist and his or her source.

I think these laws achieve a far better balance. The bill will also remove the automatic loss of privilege where the communication to a journalist was made for an improper purpose. Instead, the court will be required to take this issue into account in its exercise of discretion. This amendment enables the possible application of journalist privilege to cases where a communication between a journalist and their source is itself an offence, such as a public servant’s unauthorised disclosure of information obtained in the course of official duties to a journalist in contravention of section 70 of the Commonwealth Crimes Act 1914. To assist the court to frame its consideration of whether to grant the privilege in any particular case, this bill includes a new provision directing that there be a balance between the public interest in the administration of justice and the public interest in the media communicating facts and opinions to the public and, for that purpose, having access to sources of facts.

This is not an easy bill to frame. It is about balance. The journalistic community is a diverse bunch. Of course, we politicians do not agree with everything journalists do. That is in the nature of our relationship, and it should not be anything other than that. But I do not think anyone can argue about the Australian media and Australian journalists being central to our democracy. In my view, they need room to move and some special consideration due to the importance of the role they play in our democracy. The Rudd government noted this in the run-up to the last election and we are delivering on that commitment today. These laws allow flexibility and allow our judiciary to weigh up a wider range of issues in the consideration of the confidentiality of journalists’ sources.

This bill, without doubt, enhances transparency and accountability of government. These laws, at the end of the day, are not about protecting journos; they are about protecting our democracy. Can you imagine these laws being put into place in Fiji, Zimbabwe, China? I suspect not. These laws are, quite simply, a measure of the health of our democracy and our willingness to protect the best interests of our society and, of course, to test it at each step. And I am quite proud to stand here and commend the bill to the House.

12:47 pm

Photo of Robert OakeshottRobert Oakeshott (Lyne, Independent) Share this | | Hansard source

I welcome the Evidence Amendment (Journalists’ Privilege) Bill 2009 as well and pick up on the words of the previous speaker that it is a sign of the health of the democracy we live in. We hear many debates in this chamber about freedom and peace, which is quite often used as an argument to be less transparent and less accountable in some of the activities of government and public policy. However, the safe port for all of us in a free and peaceful society such as Australia is to be as transparent and as accountable as possible. This bill looks to take a step further towards that.

I am aware of a debate going on in the Philippines right now, on legislation called the Right of Reply Bill, where it is proposed that, if a journalist writes a story attacking a member of parliament, the member of parliament gets a right of reply in exactly the same spot in the paper in its next edition. I know that would draw many smiles from many members of parliament in this place. It is the result of an influence by public policy makers that is certainly not welcomed by the journalists, and I think it is not in the best interests of delivering transparency and accountability and, therefore, the logical extension of greater freedom and greater peace in countries such as ours.

This bill we are debating is good work by government. I am pleased to see that it has come forward. The bill extends a requirement for the court to consider any likely harm to the journalist if the evidence were made to be given, including damage to the journalist’s professional reputation and their ability to access sources of fact in the future. I could make a quip here that I look forward to the next cabinet meeting following the passing of this legislation—I suspect it might be a bit quieter than usual because, as a result of this provision, journalists will have an ability to get information from sources and protect those sources in a better way.

The bill also repeals the provisions for automatic loss of privilege in cases of misconduct. Now, the issue of misconduct or whether the communication between journalist and source was for an improper purpose becomes just one of several factors that the court will consider. The court must consider whether the relevant misconduct, along with all the other circumstances, warrants directing a journalist to breach the confidence of their source. The bill gives greater flexibility to the court by removing the requirement that courts give the greatest weight to any risk of prejudice to national security. The bill extends the scope of the privilege ‘in appropriate circumstances’ and privilege only applies at trial and pre-trial stages of court proceedings.

Obviously, as I have said, this enhances open and accountable government, which is vital to the democratic system. It improves the openness, transparency and accountability of government and the Public Service. A well-informed community through greater access to information is our safest protection for freedom, peace and democracy in Australia. It also allows for the appropriate balance to be struck between the public interest in a free press and the public interest in the administration of justice. It ensures that the court has relevant public interest factors in mind when exercising its discretion to direct that evidence of a protected confidence or protected identity information is to be given.

There are benefits for journalists in protecting confidential communications. The current law has operated too severely in mandating the loss of privilege. I pick up the point made by one of previous speakers that six journalists have been jailed in the past 18 months. I was not aware of that and I find that a startling figure. The bill also has some benefits for journalists’ sources. Protections for sources are strengthened by the bill, which requires the court to consider any potential harm to the source as well as to the journalist involved. I think the judges will also have a better ‘on balance’ role to play in terms of the balancing act between the public interest and the greater good of the country, balancing the protection of journalists with the protection of the public interest in the administration of justice.

The bill will require the court to consider whether a communication was made contrary to law in determining whether to direct that evidence to be given. The greater the gravity of the relevant misconduct, the greater the weight the court will be expected to give that particular factor, and there is a significant discretion for judges in weighing up factors, which I think is also an important step—placing faith in the judiciary to deal with those public interest questions. Greater flexibility is now being given to judges, and all factors are of equal value.

The bill does not negate all the problems and all the vexed questions that arise with these issues of public interest and privilege. So, although it does not mean to, it may frustrate legal action being taken against those who have made an illegal disclosure—I think that is something this chamber needs to watch into the future. Nor are the amendments designed to encourage illegal disclosures, I hope, but they might. Again, I think that is something to watch into the future.

With regard to the extension of the privilege provisions, the question is: does it go far enough? Should there be absolute privilege? I think the majority would say no; even the press need to be transparent and accountable where appropriate—again, no smiles on that point either, please! The extension of the privilege places a lot of faith in journalists to accurately report facts. Balancing the privilege and the responsibilities of a journalist is important. Again, I think that is something that everyone needs to keep an eye on and that everyone within the fourth estate needs to be very aware of. I would hope that the code of ethics is now re-read and reconsidered and that greater weight is placed by the journalism profession on checking their sources and accurately reporting facts—that adherence to the full code of ethics will be even greater now that this privilege is being extended even further for the profession.

One final issue is that it may be necessary to reveal sources to determine whether information is credible. The question then is: in what context will that happen? Again, I think that is one to watch into the future.

Broadly, this bill is a good sign that government is willing to move to further extend the confidential relationship privilege provisions for journalists. I think it reflects well on the state of play of Australian democracy and, as I have said previously, it reflects the fact that there is a greater commitment to the principles of transparency and accountability in protecting the freedoms and the peace of the country we live in. I support the bill.

12:55 pm

Photo of Graham PerrettGraham Perrett (Moreton, Australian Labor Party) Share this | | Hansard source

I am pleased to speak in support of the Evidence Amendment (Journalists’ Privilege) Bill 2009. This bill amends the Evidence Act 1995 to provide greater protection for journalists and their sources. This is obviously difficult ground, as we heard in the member for Lyne’s speech.

When I think of what a journalist is, it is easy to think of the Washington Post reporters Bob Woodward and Carl Bernstein and how they exposed the Watergate affair—those sorts of journalists with resources at their beck and call, and the time to do investigative journalism. I think of Chris Masters, from Queensland, and his expose ‘The Moonlight State’, an episode of Four Cornerssomeone who obviously had fine ethics and had resources and the time to track down sources. I think of people like Laurie Oakes, Lenore Taylor, Annabel Crabb, Paul Syvret, Kathleen Noonan and Dennis Atkins, to name but a few of the journalists whose articles I particularly look forward to reading. I know that their work has been researched and considered and they have some resources behind them. As I said, I am just naming a couple. Obviously, all the journalists at AAP would be similarly inclined.

But journalism is changing. It has changed since the days of Washington Post reporters having an editor who could support them through an arduous investigative process. Now we have newspapers whose revenues have declined. We have a younger generation who have a different approach to how they gather their information—in terms of television and the web, iPhones and the like. We now have people who are one step away from being a blogger in their lounge room who are also taking the guise of journalists. So, when we talk about Bob Woodward or Carl Bernstein, or Laurie Oakes or Chris Masters, we can talk about their journalistic ethics and what they would consider appropriate to print. However, I think the definition of ‘journalist’ is going to change significantly over the next few years.

We had that unfortunate situation just the other day when John Cobb, the member for Calare, clearly stated that he had some information that he did not know to be true—he did not know whether it was true or not—yet he was happy to talk to the media about it. So the story takes off and has a life of its own, even though, as I said, he had no knowledge one way or the other as to whether it was true. It certainly sounded fanciful.

So, in terms of that continuum of what a journalist is, I am very, very comfortable with providing protection to journalists such as Woodward, Bernstein and crew, but if there is a blogger in their backyard saying, ‘I heard this half of a rumour on the internet and I therefore need protection for it,’ that is where it could be more problematic.

But, leaving that aside, most good journalists have always been able to balance the tension between their ideals of a free press and the public interest while upholding their professional code of ethics by protecting their sources who provide information on a confidential basis. I just hope that the Woodward-Bernstein type journalist is more likely to use this protection than some blogger who has an axe to grind or who is not particularly interested in preserving the truth.

In other professions the boundaries between privacy and discretion are clear-cut. In this House we are very fortunate as politicians; we know that what we say is privileged—or certainly for most of the time we know that what we say is privileged while parliament is in operation. I have heard some comments hurled across the chamber during divisions that would perhaps get us into trouble if they were spoken outside Parliament House. Why do we have this privilege as politicians? It helps to ensure that there is a healthy democracy. Personally, I hope that there is never anything I say inside this chamber that I would not gladly repeat outside the chamber—but that is me.

Obviously there are other people that have protection, such as patients who know that their health records are confidential, something between them and their doctor. This is very important because it helps to save lives and make sure that people always tell the truth when talking to their doctor. Also, a client knows that what they share with their lawyer is protected. This protects the adversarial system of justice that we have in Australia. Occasionally there are hiccups. That might seem bizarre but, for the greater good, legal professional privilege must be preserved and protected. You do not have to be a lawyer to understand why that must occur.

A healthy democracy relies on the ability for journalists to hold government and government institutions to account, and sometimes this can only be done with the help of sources who, for whatever reason, choose to remain anonymous. I know that there are people in the corridors of this House who are happy to talk to journalists off the record. It is not my particular practice. In fact I was quoted anonymously in a paper the other day and I made a point of contacting the journalist to say that I do not give things off the record, that I am happy to be quoted. He clarified that by saying that his subeditor had removed my reference because they wanted it to appear anonymous. Obviously in Canberra we do run into journalists in all sorts of places and, hopefully, there is nothing that I would say that would be problematic. Maybe if a politician were as drunk as 50 cats down at the Holy Grail I could understand why they might want some protection, but a healthy democracy means that we let journalists protect their sources on occasion.

If sources cannot speak to journalists with confidence that their identity will be protected, then whistleblowers will be significantly less likely to expose wrongdoing. We have seen so many examples of this. I have heard testimony from Toni Hoffman from the Bundaberg hospital and from Hedley Thomas, a journalist at the Courier-Mail, about this and how on occasions such whistleblowing can save lives. Being part of the House of Representatives Standing Committee on Legal and Constitutional Affairs, I heard so many people in the whistleblowing investigation give great evidence about the importance of this.

In Australia most of our journalists hold firmly to their code of ethics. Among the 12 clauses the code states that journalists:

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.

So clause 3 says that a journalist’s aim is to attribute information to its source, and I hope that all journalists remember that. I am sure that they have a copy of their code of ethics in their back pocket at all times. The code continues:

Where confidences are accepted, respect them in all circumstances.

This is from the Media Alliance Code of Ethics, No. 3.

In their submission to the Senate Standing Committee on Legal and Constitutional Affairs inquiry into this bill, Australia’s Right to Know coalition, which is a coalition of major Australian news organisations including News Ltd, Fairfax, ABC, AAP, Sky News and the Media, Entertainment and Arts Alliance, all very honourable and reputable entities—and I would like the press gallery to know that—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 for genuine reasons—and as I said, they attribute the information whenever they can—can have confidence that they are protected.

During the last 20 years nine Australian journalists in six separate cases have been convicted or jailed for not revealing their sources. Tony Barass from the Sunday Times in Perth was imprisoned for 10 days and fined $10,000 in 1989 for refusing to disclose a confidential source. It was a significant amount of money and significant jail time as well. Gerard Budd from the Courier-Mail, Brisbane’s No. 1 selling paper, 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. 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 their case. These are very significant circumstances.

Most recently we had the Herald Sun journalists Michael Harvey and Gerard McManus convicted of contempt of court and fined $7,000 each for refusing to reveal the source of a story about a federal government plan to cut war veterans’ benefits. As a result of the story, a public servant, Desmond Patrick Kelly, was charged under the Commonwealth Crimes Act for leaking confidential information. Kelly was convicted in the Victorian County Court, a decision later overturned by the Victorian Supreme Court. In Kelly’s trial, Michael Harvey and Gerard McManus held up their professional code of ethics and refused to reveal their sources or give evidence in Kelly’s trial, and they were consequently charged with contempt of court—brave stuff indeed! In response to this case, the Howard government introduced the Evidence Amendment (Journalists’ Privilege) Bill 2007 to provide some protection to journalists in civil and criminal proceedings of a federal or ACT court for communications made in confidence to journalists.

Under this legislation, the court must rule out evidence that would harm a confidential source and where that harm outweighs the usefulness of the evidence. The open and honest Rudd Labor government believes that this law does not go far enough and does not provide adequate protection to journalists and their sources. Obviously, having somebody like Senator the Hon. John Faulkner in cabinet is great for the Australian pursuit of freedom of information and an open government. He has been a terrier on these particular matters. A major flaw of the current law is that the court can compel the journalist to disclose a confidential source where it believes that the communication to the journalist was an offence, such as a public servant’s disclosure of information obtained in the course of official duties.

Unfortunately, Australia has fallen behind most Western democracies on this issue. Journalists in New Zealand, the United Kingdom and the United States, for example, are protected by law from revealing their sources in almost all circumstances, the exception being, obviously, in cases of national security.

The bill before the House will improve the privilege for journalists who receive information confidentially. It will require the court to consider not only the harm that may be caused to the source but also the possible or likely harm that could be caused to the journalist if the source was to be revealed. Under this bill, the court should still consider national security; however, the requirement that it be given the greatest weight is removed. The bill also overturns the requirement for journalists to disclose a confidential source where the court believes that the communication to the journalist was an offence. If the court believes the source was involved in misconduct in disclosing confidential information to the journalist, it will take it into account but it will not automatically rule out granting privilege on this basis.

This bill is about balance. It directs the court to weigh up the public interest in the administration of justice versus the public having access to the facts through the media. As many of the earlier speakers have stated, this is the right balance in a healthy democracy. While this bill offers greater protection to journalists, the primary purpose of this legislation is about ensuring greater accountability and increased transparency in government. There are high expectations that journalists will report the news in the public interest—honestly and ethically. However, reasonable protections must be in place to ensure they are not bullied by the courts into disclosing confidential sources. This legislation provides flexibility for the court to take into account all relevant factors, including harm to the source or the journalist, national security and misconduct in the disclosure of information. These factors must be weighed against the public interest.

Finally, I hope this bill will pave the way for similar legislation across all jurisdictions to ensure greater uniformity and certainty for journalist shield laws. I commend the bill to the House.

1:10 pm

Photo of Mrs Bronwyn BishopMrs Bronwyn Bishop (Mackellar, Liberal Party) Share this | | Hansard source

I rise to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2009 and to add a strong voice, I trust, to the cause that says: this bill is an improvement but it does not go far enough. Last month during the break I attended the Inter-Parliamentary Union in Addis Ababa in Ethiopia. It was the 120th assembly of that union. For those who are not familiar with the organisation, it is structured along the lines of the United Nations and its membership is as of the United Nations, with the exception of the United States, which is contemplating renewing its membership.

An important debate took part in that assembly, which related to the freedom of expression and the right to information. This was a matter dealt with by the third standing committee of the union and I became a member of the drafting committee and the rapporteur for that committee, both to the committee as a whole and to the assembly. The beginning point for our resolution was to recall that under article 19 of the Universal Declaration of Human Rights of 1948, ‘Everyone has the right to freedom of opinion and expression.’ If that right is to be fully met then the question of a journalist’s freedom to protect their sources and not to be incarcerated as a result of not disclosing them has to be part and parcel of that concept.

The membership of the Inter-Parliamentary Union ranges across many states that are far from the democracy that we are. But, nonetheless, a very strong resolution was accepted and parts of the resolution are very pertinent to this debate today. Cited among the recitals are these:

Believing that the people’s right to information as well as the generation and dissemination of information are indispensable elements of a functioning democracy and that access to information is an essential tool for strengthening government accountability, transparency and adherence to the rule of law …

Transparency can only be properly exercised and be effective if journalists, who are so often the means of disclosing information which can otherwise remain hidden, can protect their sources. Further in the document we recognise:

… the importance of freedom of expression and access to information in a democratic society for ensuring accountability, checking corrupt practices and enhancing good governance …

We were:

Convinced that the protection of journalists’ sources is an indispensable condition of press freedom …

We considered:

… that education and literacy are crucial to the full enjoyment of access to information rights …

In this country we do have virtually 100 per cent literacy; our people are able to appreciate and have access to freedom of expression. But we also need the right to have information published without the fear of being incarcerated.

In this resolution we said we were aware:

… that people’s right to access information is more relevant today than ever, as modern democracy embraces a wider and more direct concept of accountability …

We said we believed:

… that freedom of expression and access to information are fundamental to a democratic society …

We further said that we encouraged:

… those parliaments that have not already done so to enact freedom of information legislation at the earliest opportunity—

and underscored—

the need for the parliaments of States that already have such a legal framework in place to ensure that it is implemented effectively …

This legislation is important in that concept of effective implementation. That is why the legislation needs to go further. Whilst the opposition will not impede the second reading in this chamber, I foreshadow that there will be amendments in the Senate. The Senate Standing Committee on Legal and Constitutional Affairs, which investigated this bill, concluded: ‘The Liberal senators have proposed that in New Zealand, where there have been confidential communications between a journalist and a source, a court may not order disclosure of those communications unless it can be established that the public interest in the disclosure outweighs both an adverse effect on the source or any other person and (b) the public interest in communication of facts and opinion to the public by news media.’ This is the test that is favoured by this side of the House. The fact of the matter is that under this legislation, as it stands, journalists who have been imprisoned previously would still be imprisoned; therefore the legislation does not meet the test that we are effectively allowing for freedom of expression.

I go back to the resolution of the 120th Assembly of the Inter-Parliamentary Union. We invited:

… parliaments to take legislative action to protect journalists from being compelled to reveal their sources …

We condemned:

… restrictions imposed on, violence suffered by, victimisation and even assassination of members of parliament, journalists and other opinion shapers in exercising the right of freedom of expression …

We urged:

… parliaments to ensure that only those restrictions on freedom of expression that are absolutely necessary to protect the rights of others and provided for by laws are allowed, and that any regulatory regime operates in this context …

This legislation does not meet the criteria. We recognised:

… that freedom of expression and access to information may need to be restricted in case of war or other serious threat to public security—

but stressed—

that such restrictions ought to be strictly limited in scope and duration by legislation that is proportionate to its purpose and whose implementation is subject to independent judicial oversight …

We called on parliaments:

… to combat arbitrary sanctions by the State on the media, press agencies and their agents …

We urged:

… the media to exercise their freedom of expression judiciously in all circumstances, particularly during armed conflicts, counter-terrorism operations and in other similar situations …

We called on parliaments:

… to ensure that education is compulsory, free and equally available to boys and girls until at least aged 16 and that adult literacy and mastery of new information and communication technologies become widespread practices …

Those were parts of the resolution that were aimed at those countries that do not enjoy a high standard of literacy or, indeed, that prevent girls and women from being educated and also having that access. We in this country are free and we, as men and women, are equal. It is a hugely important thing that we have achieved over a long time, that is precious to us and that we must always maintain. If we want other countries to follow in the way we have developed and to see that freedom enjoyed by women in other countries then we have to, indeed, fulfil our obligation to ensure that when we say that there must be freedom of expression and access to information we do it to the very best that it can be done—and the very best that can be done is not the legislation that is before us.

In rising to speak to the legislation, I do so from my personal commitment to there being privilege for journalists and their sources but also from having taken part in an international forum where I advocated that strongly—that in the public arena there is the need for freedom of access to information, but unless you can express it and publish it and have it known then it is, in a way, being censored. The only remedy for a court to use when a witness refuses to give up their sources is contempt of the court, and the remedy that follows that is imprisonment. We have heard other members cite examples of where journalists have been imprisoned, and that is a blight, I believe, upon us.

I do believe that the provisions of both the UK and New Zealand, particularly New Zealand, offer a better solution. I will quote what the New Zealand Evidence Act says about protection for journalists’ sources. It states:

If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.
A Judge of the High Court may order that subsection (1) is not to apply if satisfied by a party to a civil or criminal proceeding that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs—
any likely adverse effect of the disclosure 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, accordingly, also, in the ability of the news media to access sources of facts.

In other words, the presumption is in favour of the journalist, and that is what is lacking in this bill. There is no question that the public interest is always going to be of concern in these issues, but there has to be an ability for the whistleblower to be confident that, if they give information which they believe is in the public interest to a journalist who will publish it, that source will be protected by the journalist.

The issue of whistleblowers is an equally important question. In my life in this parliament I have on many occasions had people come to me and give me very sensitive information which I have been able to use because of the privilege that is afforded in this place and have brought about just outcomes. Plenty of examples can be given where journalists have been able to bring information to the surface and to the public which has resulted in justice being brought about for a particular individual or a circumstance. But the journalist and whistleblower do not have the same protection that someone who may come to me has. I do believe that in an open society—in a democracy such as ours, representatives of which attended that international forum, where there were many countries where, compared to ours, people are oppressed—we have an obligation to do our very best to ensure that that freedom of information and freedom expression are truly upheld by laws.

So I say to the government that the bill does improve the situation somewhat but not sufficiently. I believe that the opposition senators have drawn good conclusions. I am one, and will put it on the record, who would and does support the enactment of laws to enable the situation that pertains in New Zealand jurisdictions to apply here. Although the bill is not one that we would wish to reject, it is one that does not yet go far enough.

1:25 pm

Photo of Sharryn JacksonSharryn Jackson (Hasluck, Australian Labor Party) Share this | | Hansard source

I rise to speak in favour of the Evidence Amendment (Journalists’ Privilege) Bill 2009. I am pleased to do so because this bill will not only strengthen the protection of journalists and their confidential sources but also ultimately enhance the transparency and accountability of government by recognising the public interest in the communication of facts and opinion to the public by the media. There is currently provision in the Evidence Act 1995 for a journalist to refuse to give evidence to a court on the basis that it would disclose information obtained through a professional confidential relationship. However, the provision has been rightly criticised for its narrowness in a number of respects. It was interesting to listen to the comments of the member for Mackellar, who said that she believed that in this area the best that can be done should be done, when she was a member of a government that for 11½ years did far less than that. This provision was a product of Howard government legislation.

With this bill the government delivers on its election commitment to strengthen journalist shield laws, as the provisions are known. These amendments are not made to give journalists some special protection but, as I said, to enhance the transparency and accountability of government. These amendments strengthen a vital component of our democratic system: the community’s ability to access information which is in the public interest. This government recognises the importance of the role played by the media in the communication of facts and opinion to the public. Through this bill the government seeks to ensure that the court has the discretion to consider and balance the relevant facts of a particular case before deciding whether to grant privilege to a journalist.

In the main, in Australia we have had a fine history of professional journalism. As a Western Australian I would like to mention one particular example that comes to mind: Catherine Martin, a journalist with the West Australian. Catherine Martin was an exceptional investigative journalist who was credited with uncovering the disastrous impact of asbestos mining and the subsequent diseases of asbestosis and mesothelioma in the residents of Wittenoom in the north-west of Western Australia, where blue asbestos was mined until the 1960s. By bringing this tragedy to the attention of the public, Ms Martin deserves some of the credit for subsequent actions that have been taken to address CSR and, indeed, perhaps some of the credit for the decision to set up a fund to assist people affected by asbestos from the mine.

Ms Martin’s achievements were recognised with four Walkley awards during her career, including the inaugural Gold Walkley for the Wittenoom asbestosis articles. In 1982 she was made a member of the Order of the British Empire for her services to journalism. Ms Martin lived in Western Australia for most of her professional life—indeed, for most of her life—and only passed away in April this year, aged 90. As many commentators noted in obituaries, she died in the week that Justice Ian Gzell in the New South Wales Supreme Court found the company James Hardie guilty of misleading conduct and failure to meet its obligations over its handling of asbestos compensation. She was truly a magnificent journalist and I am pleased that legislation such as that we are considering today will be available to protect people such as her.

Journalists in Australia are represented by the Media, Entertainment and Arts Alliance, who have adopted the fabulous by-line, ‘The people who inform and entertain Australia.’ MEAA, as they are commonly known, have established a code of ethics to which their member journalists adhere. Point 3 of the Media, Entertainment and Arts Alliance code of ethics reads:

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.

The code does not provide for the ability to opt out of this mandate when compelled by law to do so. When circumstances cause the journalists’ code of ethics to clash with the rule of law there is a great deal of interest from the media. We have had some examples of that in Western Australia. The member for Moreton may have mentioned the situation of Tony Barrass, who was imprisoned. In 1989, Western Australian journalist Tony Barrass was called upon as a witness to identify a source of information. When he refused the magistrate imprisoned him for five days. Interestingly Mr Barrass claims his incarceration was a positive career move, because of both the contacts he made in prison and the credibility that he gained with future potential sources. That is one example.

We must also be mindful of the extent to which the media is vulnerable to manipulation. We need to look no further than the notorious children overboard affair for an example. At the time, many people were concerned that a group of asylum seekers attempting to enter Australia by boat had thrown their own children into the water to force the hand of our border patrols. However, it eventually became clear that inaccurate information and misinterpreted photos were strategically released and used to whip the media, and consequently the voting public, into hysterical support for hardline immigration policies.

There are two main points that I would like to draw from those examples and that of Catherine Martin. The first is that the nature and extent of likely harm to the journalist who discloses a source is fundamental. A responsible journalist who can inspire trust from a source and who has the integrity to recognise when information should be made public deserves the protection of our courts, just as the source deserves our protection. But, conversely, the danger of granting blanket freedom to publish without attribution or accountability is just as fundamental. I am confident that this legislation gets the balance right for the benefit of the public interest in transparency and accountability.

I note that the Law Reform Commission report on the operation of the uniform evidence acts tabled in 2006 recommended that a professional confidential relationship privilege be included but that it be a qualified privilege, allowing the court to balance the competing interests at stake. A critical feature of the legislation criticised by some in this House but which is preserved in this bill is that the onus of establishing privilege rests with the person claiming it. In this sense, it stops short of being a true or unfettered privilege, although it should be noted that the court also has the power to grant privilege on its own motion. This legislation guides the courts in the discretionary decision to confer privilege.

This is in contrast to legislation in some other countries, such as New Zealand and the United Kingdom, where journalists have a rebuttable presumption of privilege. Such contrast has given rise to criticism that this bill does not go far enough. However, it must be remembered that these amendments are not primarily about protecting journalists; they are about ensuring that the community is able to access public interest information. This is integral to the sound operation of our democratic system. While this bill will encourage greater accountability, blanket privilege may open the door to a loss of accountability on the part of those reporting unattributed facts and opinions to the general public. The wonderful and unique ABC Media Watch program has given us ample examples of that over the years.

This bill gives the court flexibility to decide whether the privilege should apply after it has considered all the relevant circumstances. Importantly, the bill requires the court in making its decision to consider the nature and extent of likely harm not just to the confider but to the confidant—that is, the journalist. The court will also be required to consider likely harm to journalism as a profession by virtue of a new requirement that the public interest in the administration of justice be balanced against another legitimate public interest: the public interest in the media communicating facts and information to the public—and the obvious corollary that the media must have access to sources of facts. These considerations legitimise the role of the professional journalist in a democratic society.

This bill brings balance to the legislation in other important respects. The court was previously required to allocate overriding significance to considerations of national security. This bill provides the court with the ability to balance matters of limited risk to national security against other important considerations. That is a much more measured and proper approach.

The bill also corrects a glaring shortfall in the previous legislation. Previously, privilege was excluded where information was conveyed in the furtherance of the commission of an offence, fraud or act that attracted a civil penalty—for example, where a public servant without authorisation disclosed information obtained in the course of official duties—contrary to section 70 of the Crimes Act 1914. To a significant extent, this exclusion rendered the shield laws pointless. Nevertheless, it must be recognised that some misconduct should not be protected and it is appropriate to allow the court to allocate weight according to the nature of the specific disclosure. Therefore, this bill requires the court to take into account whether the communication was made in the furtherance of an offence, the nature and gravity of that offence and the importance of the evidence being shielded to the proceeding. I believe that the bill transforms the journalist shield laws from an empty gesture into an important component in upholding a robust fourth estate. This bill extends the application of the shield laws beyond proceedings in federal courts and courts in the ACT to all proceedings for an offence against a law of the Commonwealth in any other Australian court.

Together with existing shield laws in New South Wales, this legislation provides journalists with guidance as to what circumstances will challenge their code of ethics. I am encouraged by the interest shown in other states to enact similar shield laws. While I note that the WA Attorney-General has expressed some reservations—unfortunately, it appears, based more upon his perception of insufficient consultation with him than anything else—I remain hopeful that he will realise that shield laws are an integral component of an accountable democracy and will allow WA journalists to get on with doing their job.

I could not speak on the issue of journalists without referring to those wonderful people who provide an essential service to my constituents in Hasluck and surrounding areas, and they are the hardworking journalists and staff of my local newspapers, such as the Echo and the Examiner. In particular, I would like to acknowledge local journalists Julian Wright of the Examiner and Kristy Moroney of the Echo. I also acknowledge the fine work of Jamie MacDonald, formerly of the Echo, and wish him well in his new job.

Photo of Ms Anna BurkeMs Anna Burke (Chisholm, Deputy-Speaker) Share this | | Hansard source

Don’t make me force you to come back to the relevance of the bill before us, Member for Hasluck!

Photo of Sharryn JacksonSharryn Jackson (Hasluck, Australian Labor Party) Share this | | Hansard source

It was important that I acknowledged how broad the application of these journalism shield laws may be, Madam Deputy Speaker.

The bill establishes an essential balance between the public interest in the administration of justice and the public interest in the media having access to sources of facts for the communication of facts and opinion to the public. The bill creates a framework in which journalists can conduct their profession with integrity but not with impunity. I am confident that this bill lends no comfort to scandalous reporting but facilitates great investigative journalism, without that being at the expense of justice in the courtroom. It stands as part of a raft of measures that have been promoted and supported by the Rudd Labor government, including the terrific work of Minister John Faulkner on changes to the freedom of information legislation and the like to ensure a much more transparent and accountable government. For these reasons, I commend the legislation to the House.

1:39 pm

Photo of Robert McClellandRobert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | | Hansard source

in reply—I would like to thank the members for their contribution to this debate. Such a debate as this is a hallmark of a great democracy, and unquestionably our system of government is that. It is a shame, however, that the opposition have chosen not to give their support to this important bill, the Evidence Amendment (Journalists’ Privilege) Bill 2009. Indeed, it is somewhat curious when the position that they are taking necessarily means that they believe the current law—the law that they introduced just two years ago—is inadequate.

Indeed, the current law is inadequate because more often than not it is irrelevant or unavailable to a journalist to use. That is because it provides that the privilege cannot be claimed when the information is originally provided to a journalist in breach of a law involving a civil penalty or in breach of criminal law. For instance, if information is provided by a whistleblower who is a public servant acting contrary to the conditions of their service or to specific laws regarding secrecy and the like, the journalist under the current state of law is automatically disentitled from relying on the privilege. We have endeavoured, on the other hand, to strike a balance, as specified in the objects of the bill, between the administration of justice and the freedom of communication. I note that the opposition are taking the view that legislation, whether a modification of this bill or new legislation, should be drafted on the basis that it creates a presumption—that is, a presumption in favour of privilege. I should say that that is, again, diametrically opposed to the position the opposition took when they were in government, just two years ago, when the Hon. Philip Ruddock, the then Attorney-General, said in his second reading speech:

… the court will be required to give greatest weight to the risk of prejudice to national security.

Again I note the significant about-face on the part of the opposition. It is a little disappointing that none of the members opposite have focused on the key elements in the bill that we believe considerably strengthen the shield that is available under current law.

The Evidence Amendment (Journalists’ Privilege) Bill 2009 will enhance open and accountable government. The bill enables an appropriate balance, as I have indicated, to be struck between the public interest in a free press and the public interest in the administration of justice. The bill gives specific recognition to the two public interests which underlie the privilege—the public interest in a free press and the public interest in the administration of justice—but leaves it to the court to determine where the appropriate balance lies in the circumstances of each case. To suggest that the onus is on the person claiming the privilege is misconceived. To assist a court in finding the right balance, the bill provides an objects clause which sets out the purpose of the journalists’ privilege, and that is to achieve a balance between the public interest in the freedom of the press and the public interest in the administration of justice. There has been some criticism of the inclusion of the objects clause, but I am certainly aware that judges do regard objects clauses as helpful in resolving ambiguity or uncertainty in legislation. That is even though where the language is clear they apply the language of the specific provisions and an objects clause in itself will not determine the outcome on the consideration of the particular facts.

It has also been suggested that stronger protections should be provided by imposing an obligation on the court to specifically take into account the public interest in press freedom. Indeed, the Senate Standing Committee on Legal and Constitutional Affairs also recommends the inclusion of a public interest factor in the list of matters that the court should consider in exercising its discretion. The committee’s recommendation would require the court to consider both the public interest in the disclosure of a protected confidence and the disclosure of protected identity information. This is in fact similar to recommendations that were recently made at the Standing Committee of Attorneys-General, where Attorneys agreed to include two new public interest factors in the professional confidential relationship privilege in the model uniform evidence bill. That agreement between the state and territory Attorneys, I should say, was significant. The federal government has been a supporter of uniform evidence laws, and I can assure the House that I will be giving careful consideration to the recommendations of these two bodies.

While the media have called for journalist shield laws to go further, others have suggested that the bill goes too far. I accept that different sectors of the community will have diametrically opposed views on journalists’ privilege. But this bill, as I have indicated, aims to achieve the appropriate balance between competing interests. Inevitably in those circumstances neither end of the spectrum will be completely satisfied with these reforms, but that in itself is often a good sign that the appropriate balance has been achieved.

It should be noted that, while the vast majority of journalists in this country publish information and provide opinion in good faith and unquestionably in the public interest, equally it must be accepted by fair minded people, I would think, that it is not unknown for journalists to be motivated by self-serving reasons and indeed, regrettably, sometimes by malice. The extent to which journalists defaming someone under those circumstances or with those motivations, for instance, should be protected by such a privilege is certainly a legitimate question.

It is surprising today to see that the opposition are opposing the bill on the basis that it does not go far enough. As usual, it appears they are playing somewhat opportunistic politics. They have been quite all over the place on this issue. I have indicated that the backflip in their position is an admission of how ineffective their 2007 laws were in addressing this critical issue. When the then Attorney-General introduced the current law some two years ago he said:

It is a significant amendment to evidence law, and it will provide an avenue to protect confidential communications between journalists and their sources.

Indeed, Senator Johnson, representing the then Attorney-General in the Senate, went further. He said:

The bill provides an appropriate balance between the competing public interests

We have specifically referred to a balance, and we have graded all considerations equally for them to be considered in the exercise of a court’s discretion. Labor have been absolutely consistent in where we stand on this issue, both when in opposition and in government . Our position is reflected in this bill. The government have made it clear that we support the courts having a guided discretion to make a decision. In contrast, the opposition as usual is playing opportunistic politics in a bid to get some cheap praise, one would think, from media outlets. In conclusion, this bill forms an integral part of the Rudd government’s commitment to enhance transparency and accountability of government and the Public Service and to promote free speech. In conjunction with other proposed reforms in areas such as freedom of information law and whistleblower protections, this bill will bring about a more vibrant system of democracy in Australia. I commend the bill to the House.

Question agreed to.

Bill read a second time.