Monday, 25 October 2010
Evidence Amendment (Journalists’ Privilege) Bill 2010
That this bill be now read a second time.
Whistleblowers have an important role to play. Obviously, they reveal misconduct and often they do that from privileged positions behind closed doors from where there is next to no hope that the normal processes of government and administration will spot and report on that misconduct. In other words, whistleblowers are an essential safeguard of the public interest, which needs to be recognised as such. Whistleblowers often act openly—for example Toni Hoffman, the Queensland nurse, who bravely lifted the lid on Dr Patel’s deadly transgressions at Bundaberg Base Hospital. Dr Patel was the chief of surgery at Bundaberg Base Hospital, between 2003 and 2005 and was found guilty of the manslaughter of three patients and of grievous bodily harm of a fourth patient. But, despite the seriousness of Toni Hoffman’s allegations, and the fact that she was ultimately vindicated, Toni Hoffman was ridiculed and eventually forced to go outside the Queensland health system and raise her concerns with her local member of parliament, Mr Rob Messenger. Messenger, also facing ridicule over the matter, eventually had to rely on the Courier Mail newspaper to get the Queensland government to intervene in the Bundaberg Hospital tragedy.
Many of the costs of whistleblowing are illustrated by the Toni Hoffman case. Certainly, many whistleblowers lose their job, lose a profession and lose their family and many of their friends. Sometimes they find themselves subject to legal proceedings and, in Australia, under the Crimes Act a current and former federal public servant can be jailed for up to two years for revealing any information he or she finds in the course of his or her employment. And, unsurprisingly, the rate of suicide among whistleblowers is above the national average. So there is clearly a need for legislation to protect whistleblowers, and I applaud the Prime Minister for her commitment to progress such legislation in the term of this parliament.
Very importantly, not every witness to official misconduct is able or willing to speak publicly, as was Toni Hoffman. Sometimes whistleblowers choose to break ranks anonymously, which is unsurprising considering the punishment meted out publicly to those whistleblowers who do opt to out themselves. An extraordinary example is former Customs Officer Allan Kessing, who, in 2007, was convicted of leaking a secret report into security flaws at Sydney airport. The publication of the report forced the Howard government to spend $200 million remedying the flaws. Despite that, Mr Kessing was convicted, under Section 70 of the Crimes Act, of making an unauthorised disclosure of government information to The Australian newspaper. This episode has left Mr Kessing a broken and broke man. I would hope that this or future governments find it in themselves to revisit his case one day. After all, he was just trying to do the right thing.
An equally remarkable case occurred in 2004, when two senior political reporters for Melbourne’s Herald Sun newspaper, Michael Harvey and Gerard McManus, wrote stories which exposed a decision by the Howard government to reject a $500 million increase in war veterans’ entitlements. During legal proceedings against the alleged source of the story the journalists refused to identify their source, thus putting them in contempt of the court and facing possible imprisonment. That was an extraordinary situation, not least because the actions of Harvey and McManus were entirely consistent with the Australian Journalists Association Code of Ethics, which provides that journalists should:
Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.
As it turned out Harvey and McManus were convicted of contempt of court and fined $7,000 each for refusing to reveal their source behind the stories they wrote, even though this was a clear example of when journalists would not have otherwise been able to report on the actions of the government without their source, who, had he or she been revealed, almost certainly would have suffered harm. I would add that these convictions are set to stay with these two men for life, a not insignificant burden for anyone, let alone for journalists who might seek to travel internationally as part of their work. The Harvey and McManus case, perhaps more than any other, highlights the need for legislation to protect journalists who publicise information from anonymous sources. In other words there is a pressing need for the so-called ‘shield law’ outlined in Evidence Amendment (Journalists’ Privilege) Bill 2010.
The Evidence Amendment (Journalists’ Privilege) Bill 2010 amends the Evidence Act 1995 by strengthening the protection provided to journalists and their sources. It is intended to foster freedom of the press and better access to information for the Australian public. The bill provides that if a journalist has promised an informant not to disclose his or her identity, then neither the journalist nor his or her employer is compelled to answer any question, or produce any document, that would disclose the identity of the informant or enable their identity to be ascertained. The bill is based on the premise that every member of the community has the fundamental right to free speech, and that sometimes the exercise of that right needs to be undertaken anonymously, especially when it comes to people speaking out about official misconduct, as whistleblowers do.
Of course, safeguards are essential with legislation like this. Sometimes so-called whistleblowers are in fact disgruntled employees making vexatious claims. Sometimes a disclosure is arguably reckless or dangerous, as some people would regard the latest Wikileaks revelations about the Iraq war. So this bill does recognise that there may be circumstances where the public interest in the disclosure of the identity of the source is so strong that it should be provided to the court. In such cases it will be up to those parties who want to force a journalist to reveal their source to prove that the public interest is best served in disclosing the source, and that the public interest benefit of a disclosure genuinely outweighs the likely harm to the source. The legislation would only apply to people for whom journalism is their main occupation. Occasional commentators, for example recreational bloggers, would not be covered.
This bill will replace the existing provisions in Division lA of the Evidence Act. It will include a new provision that provides clear authority for a presumption that a journalist is not required to give evidence about the identity of the source of their information. This presumption can be rebutted in circumstances where the public interest outweighs any likely adverse effect for the person who provided the information to the journalist, as well as the public interest in communication of information to the public by the media. These amendments are based on similar provisions in the New Zealand Evidence Act 2006.
Central to Australia’s democracy is freedom of both speech and the press. I believe that this bill goes some way, an important way, to protecting both. I would like to take this opportunity to thank the Attorney-General for the government’s commitment to this bill. I would also like to acknowledge the opposition’s longstanding commitment to so-called ‘shield’ laws, as well as the significant public response to this bill in particular. I hope that this bill will be an early display of bilateral cooperation in this place. It would certainly be in the public interest for that to be the case. Thank you, Mr Speaker.
I am very pleased to speak in support of the Evidence Amendment (Journalists’ Privilege) Bill 2010, brought into this place by the member for Denison. As members may know, there is a very similar bill in the Senate, which was introduced on behalf of the coalition on 29 September. As has just been acknowledged by the member for Denison it is a testament to the coalition’s commitment to open and accountable government and it delivers on our election commitment to press forward this important reform. I am happy to see that we are in close accord with the member for Denison in this respect.
This bill amends the Evidence Act 1995 to extend genuine protection to confidential communications between journalists and their sources. This bill has its immediate genesis in the Liberal members of the Senate Legal and Constitutional Affairs Committee in relation to government’s flawed 2009 bill. That bill, disappointedly, made only piecemeal and incremental changes to the existing regime. The act currently provides that the court has discretion to direct that evidence that would disclose a confidential communication made to a journalist, or the identity of the source, may be excluded. Such a direction must be made if the court is satisfied that the source might be harmed if the evidence is adduced and that harm outweighs the benefit of the evidence being given.
The government’s bill sought to extend the privilege by including possible harm to the journalist’s interests, in addition to those of the source, as a basis of a claim and by making the illegality of the disclosure a factor relevant to the exercise of the discretion rather than an exclusionary factor. The existing privilege can therefore be described as a guided judicial discretion. Any claim to privilege is a matter to be determined by a judge by the weighing of the listed discretionary factors. This has been criticised as providing very little certainty as to whether a disclosure is protected, when it is most needed—that is, in advance.
The position in New Zealand and the United Kingdom presumes that the communication between journalist and source is not subject to disclosure unless the party seeking disclosure can establish that that disclosure is necessary. For example, section 68 of the Evidence Act 2006 in New Zealand provides that the court may not order disclosure unless the party seeking disclosure can establish the disclosure is necessary. For example, section 68 of the Evidence Act 2006 in New Zealand provides that the court may not order disclosure unless it is satisfied that the public interest in the disclosure outweighs any adverse effect on the source, or any other person, and the public interest in communication of facts and opinion to the public by news media.
From a legal point of view there is much to recommend a position that offers a high degree of certainty in advance. This point was made to the Senate committee by the former Solicitor-General, Mr David Bennett QC, This is the position that this bill, and the coalition’s bill, adopts.
There is, however, one important difference between this bill and the coalition’s bill. The Commonwealth and New South Wales evidence acts have departed from uniformity in their treatment of professional confidential relationships. The Commonwealth act confines the definition of a ‘protected confidence’ to a communication made in confidence to a journalist. The New South Wales act defines the same term as arising in the course of a relationship in which the confidant was acting in a professional capacity under an obligation not to disclose the confidence.
The continued restriction of privilege claims is anomalous. The coalition’s bill therefore adopts the formula in the New South Wales act. Not only would it restore uniformity but it would avoid arbitrarily confining the circumstances in which claims for privilege may be justifiably asserted. As well, it brings this area of the law more closely into uniformity with equity courts’ protection of confidential relationships. Accordingly, I foreshadow that the coalition will move amendments to this effect when the bill comes before the Senate.
Finally, the bill extends the application of these new privileges to all proceedings in any Australian court for any Commonwealth offences. Because the Commonwealth does not have a dedicated court of criminal jurisdiction, in nearly all cases the relevant proceedings are brought in state or territory courts.
I would again like to commend the work of the Liberal members on the Legal and Constitutional Affairs Committee, and recognise the priority that the member for Denison has given this important issue. The coalition is proud to take a stand in defence of freedom of speech and the protection of communications made in confidence. I therefore commend this bill to the House.
The bill before the House today demonstrates the government’s willingness to work constructively with other members of this parliament and reach agreement on significant issues. The Evidence Amendment (Journalists’ Privilege) Bill 2010 is such an important bill and the protections it provides reflect the wishes of all sides of politics. The government is committed to open and accountable government. As part of this commitment the government has long supported the implementation of appropriate protections for journalists and their sources.
In the last term amendments were proposed to enhance existing provisions in the Commonwealth Evidence Act 1995 introduced by former Attorney-General Mr Ruddock. These reforms were recognised as improving the current protections in a manner that was largely consistent with the spirit of the Standing Committee of Attorneys-General’s decision, and that is a significant point because the drive for consistency of evidence law across Australia is an important consideration, as acknowledged by the previous speaker. However, those amendments were not passed before the parliament was prorogued. During the 2010 election campaign I indicated that the government would consider revisiting the issue of journalists’ shield laws and I am pleased to report that in revisiting the issue the Gillard government has worked constructively with Mr Wilkie and also Senator Xenophon to address these concerns. I commend both of them on their work. As a result the government has given its support for this bill, which we believe appropriately balances the needs of all parties.
There is no doubt that journalists play an important role in our society by providing the community with access to information that is in the public interest and the press must be given freedom to perform that role effectively. That freedom may be undermined where journalists are not confident that they can protect the identity of their sources without being held in contempt of court. Accordingly, sufficient protection must be in place to ensure that journalists can maintain the confidentiality of their sources, thereby encouraging the full disclosure of information that is within the public interest. The protections in this bill we believe are not dissimilar to those that were introduced by the government last year. However, in supporting the bill the government has listened to stakeholders, who indicated that those protections could be improved by including a presumption in favour of confidentiality and that has been included in the bill proposed by the member for Denison. In particular I would like to acknowledge the contributions from journalist Chris Merritt and also Mr John Hartigan and the Right to Know campaign.
The key element of this bill is the introduction of a rebuttable presumption in favour of journalists’ privilege. Essentially the framework, as has been noted, is based on that which operates in New Zealand. This means that where a journalist has promised to keep the source confidential they will be entitled to refuse to answer questions or produce documents that would disclose the identity of the source or enable that identity to be discovered. However, as has been noted, the protection is not absolute, nor should it be. There will be circumstances where a court considers the public interest in disclosure is such that the information should be disclosed. But this bill does so in a way that guides the court’s task on this important subject in exercising its discretion. The presumption will only be rebutted where a court is satisfied that the public interest in disclosure outweighs any likely adverse effect on the informant or any other person, the public interest in the communication of facts and opinion to the public by the press and finally the ability of the press to access sources of fact. Such circumstances could arise, for example, in relation to matters that pose a risk to Australia’s foreign relations or law enforcement operations or where lives may be endangered. As the New Zealand High Court has stated, any case in this area will involve such a contest between, as they say, two important aspects of the public interest. The first is the public interest in the investigation and prosecution of crime and the second is the public interest in the free flow of information and the protection of journalists’ sources.
The case law from the United Kingdom and New Zealand, where the laws are not dissimilar, highlights that there can be a range of factors that the courts will take into account to determine if the presumption should remain. This includes other measures by which the evidence can be obtained, the seriousness of charges involved or harm caused if the source is not disclosed. As the authorities indicate on their facts, these are matters which will necessarily vary from case to case—for instance, the presumption may not be found to apply where the journalist or his or her source was clearly acting from a position of malice and nondisclosure would prevent a potentially defamed citizen from seeking appropriate redress.
In this context, as noted in the explanatory memorandum to the bill, it is important to note that this protection operates alongside the Australian Journalists Association code of ethics. Journalists are expected to let their sources know they are a journalist. As has been noted by the member for Denison, they are expected to:
Use fair, responsible and honest means to obtain material. Identify yourself and your employer before obtaining any interview for publication or broadcast. Never exploit a person’s vulnerability …
The code also makes it clear that journalists should not lightly depart from the principle of attribution and that, when anonymity is sought by the informant, a journalist should not agree without examining the person’s motives. In that context, the code states that journalists should:
Aim to attribute information to its source—
that is the starting point, but—
Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source.
This is a significant power that journalists have. An article in a newspaper can be as adverse to a person’s reputation as any finding in a court of law, but of course a person suffering that adverse comment is not afforded the same procedural fairness that they would have in a court of law. So this is a very significant privilege that journalists will obtain. When any significant privilege is given there is an equal responsibility to exercise that privilege in a responsible way, as the journalists code of ethics implores professional journalists to do.
The government is committed to the promotion of uniform evidence laws across Australia. I note the previous speaker also commented on this matter. The bill paves the way for the states and territories to introduce journalist shield laws based on the rebuttable presumption in favour of journalists’ privilege. Victoria has indicated its intention to move similar amendments. I will be working with my state and territory counterparts to progress such a harmonised approach.
In conclusion, this bill will give journalists and their sources greater confidence and facilitate the responsible reporting of information to the public. I again commend the member for Denison. The bill will contribute to transparency and accountability in government and, in turn and in its own way, add something to the vibrancy of Australia’s democracy.
The Australian Greens believe that a strong and independent press is an essential safeguard for a democratic society. Legislation that facilitates better access to information for the Australian public through the media should be commended, which is why I support the Evidence Amendment (Journalists’ Privilege) Bill 2010.
At this point in time, Australia stands alone among democratic nations in not providing shield laws. The United Kingdom, New Zealand and even the United States have as their starting point the protection of the confidentiality of journalists’ sources. The Senate inquiry report into the government’s lapsed Evidence Amendment (Journalists’ Privilege) Bill 2009 acknowledged that most submissions favoured a rebuttable presumption of journalists’ privilege, such as exists in other similar democratic countries. All of the media organisations who made submissions or gave evidence supported many of the amendments in that bill, but clearly stated that the bill had not fulfilled the government’s stated intentions in the crucial matter of protection of confidentiality. We have an opportunity now to ensure that those original stated intentions are fulfilled.
As I listened to the various speakers today, it struck me that this bill is a good example of how all parties can collaborate on a worthwhile initiative in a way that would not have happened without the currently composed parliament. To facilitate its passage, the Greens will support the bill in its current form in the House, but I indicate now that we will seek minor amendments to it in the Senate. In particular, we believe that it should be made explicit that the bill covers bloggers, citizen journalists and documentary filmmakers, and that the privileges provided by the bill cover anyone engaged in the process of journalism, no matter who they are or in what medium they publish. I thank the member for Denison for introducing this important bill and, subject to our intention to seek some amendments, indicate the Greens’ support.
It is with pleasure, and a little bit of surprise, that I rise to reiterate the government’s support for theEvidence Amendment (Journalists’ Privilege) Bill 2010. We welcome the additional comments made by the Greens member for Melbourne and commend the bill to the House.
by leave—Without seeking to close the debate, I would add some further comments on this bill. I want to say that I think we have a tremendous situation here in that the members of the government, the opposition and the crossbenches are all working cooperatively to progress a bill which is genuinely in the public interest. It signals what can be achieved in this place when legislation in the public interest comes in here. I would hope that this signals further cooperation in the future and I look forward to the Senate progressing this bill fairly soon with little in the way of amendment.
I rise to speak in support of the Evidence Amendment (Journalists’ Privilege) Bill 2010. I commend the member for Denison for bringing this bill into the chamber. I thank him particularly for demonstrating the courage to tackle an issue that has for too long rested in the political too-hard basket. And I acknowledge that he has received support from both sides of the chamber for this bill which provides greater protection for journalists and their sources.
Journalists have long lived with the tension of balancing ideals of a free press and the public interest while upholding their professional code of ethics by protecting their sources that provide information on a confidential basis. In other professions, the boundaries of privacy and discretion are clear cut. In this House, we know that what we say—the arguments we put forward—are privileged. What I say in my other house, where I do not have quite so many rights, is also protected—by marital privilege. A patient knows their health records are confidential between them and their doctor. A client knows that what they share with their lawyer is protected. In fact, legal professional privilege is almost one of the cornerstones on which our justice system was built. Nonetheless, the law remains hazy around a journalist’s right to protect the identity of a confidential source.
In this House we often encounter journalists. In my six years in politics I have met many journalists and I could even say that two of them are my friends—although I will not name them to protect myself and them. I also have many solid acquaintances who are journalists. A number of journalists have caused me some concern, but overall I respect their profession. A healthy democracy relies on the ability of journalists to hold a government and its institutions to account and sometimes, whilst it is painful for politicians particularly, this can only be done with the help of sources who, for whatever reason, choose to remain anonymous. If sources cannot speak to journalists with a confidence that their identity will be protected then whistleblowers will be significantly less likely to expose wrongdoing.
There are many examples we could look at throughout history. I would particularly mention the courageous Toni Hoffman, who acted in concert with the Courier-Mail journalist Hedley Thomas to expose some of the work done by Dr Jayant Patel. Their work paved the way for major health reform in Queensland. There have been other examples also. In Australia, journalists hold firmly to their code of ethics. The third clause in the Media Alliance Code of Ethics states that journalists should:
Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.
I am sure there are many copies of that code of ethics in the media gallery upstairs.
During the last parliament, the Senate Legal and Constitutional Affairs Committee had a close look at this issue. In their submission to that inquiry, Australia’s Right to Know—a coalition of major Australian news organisations, including News Ltd, Fairfax, ABC, AAP, Sky News and the Media Entertainment and Arts Alliance—said:
Keeping a source confidential is fundamental to the ability of journalists to maintain trust with their sources and to encourage other sources to trust journalists and bring forward information of public concern.
Therefore, it is in the public interest for journalists to maintain a circle of trust and to ensure that sources who seek anonymity can be confident that they are protected.
During the last 20 years nine Australian journalists, in six separate cases, have been convicted or jailed for not revealing sources: Tony Barrass, from the Sunday Times in Perth, was imprisoned for ten days and fined $10,000 in 1989 for refusing to disclose a confidential source; Gerard Budd, from the Courier-Mail, was imprisoned for 14 days; Deborah Cornwall, from the Sydney Morning Herald, was given a suspended jail sentence; Chris Nicholls, from the ABC, received a prison sentence for his story relating to a conflict of interest of a South Australian government minister; and Belinda Tasker, Anne Lampe and Kate Askey from AAP and the Sydney Morning Herald refused to reveal their sources but avoided jail after the NRMA board dropped the case. Most recently, Herald Sun journalists Michael Harvey and Gerard McManus were convicted of contempt of court and fined $7,000 each for refusing to reveal the source of a story.
Australia has fallen behind most western democracies on this issue. Journalists in New Zealand and the UK, for example, are protected by law from revealing their sources in almost all circumstances, the exception being cases of national security—and I know that the member for Denison has looked at the New Zealand legislation for a guide.
The bill before the House amends the Evidence Act 1995 to ensure privilege for journalists who receive information confidentially in almost all circumstances. Significantly, it will require the court to give a presumption in favour of journalistic privilege. For the first time, journalists will be able to refuse to answer or produce evidence that would reveal the identity of a confidential source—a similar protection enjoyed by lawyers. However, there are safeguards in place by way of a public interest test. A journalist’s protection will be waived where the court considers the public interest in disclosure outweighs any likely adverse effect on the informant, the public interest in the communication of facts and opinion to the public by the press, and the ability of the press to access sources of fact.
I do support this bill and I support shield laws which provide a presumption in favour of journalists privilege. However, I believe that this bill could be improved by providing an expanded definition for ‘journalist’ or ‘reporter’. I will not be moving an amendment here but, as I have indicated to the member for Denison, I would hope that this amendment could be taken up with the Senate to improve the legislation. As an additional safeguard, this definition enshrined in legislation would ensure that rogues—who do not uphold the journalists’ code of ethics—are not able to hide their shonky reporting behind shield laws. In terms of the modern day, it is easy to see people like Laurie Oakes and the others who sit up in the journalists gallery as journalists, but there is then quite a continuum down to the perhaps aggrieved blogger who puts out something every week. So I hope that the Senate will be able to amend this piece of legislation.
While this bill offers greater protection to journalists, the primary purpose of this legislation is to ensure greater accountability and transparency of government and public organisations. Consequently, I would suggest to the Senate that the definition of journalist include some additional words. If we go to the 126G definition where journalist is defined, I would suggest that it also include ‘a person who ascribes to the journalist code of ethics as published and codified by Media, Entertainment and Arts Alliance’. This would be a narrower definition that would still cover the intent of the member for Denison’s legislation.
There are very high expectations that journalists will report the news in the public interest—not the interests of the shareholders of the company or the media owners—and that they will do so honestly and ethically. However, we must ensure the courts do not have the power to bully journalists into disclosing confidential sources.
Finally, I hope this bill will pave the way for similar legislation across all states and territories to ensure that there is greater uniformity and certainty for journalist shield laws throughout Australia. I welcome the member for Denison’s and the Attorney-General’s commitment to work to that end. I commend the bill to the House.