Monday, 21 March 2011
Evidence Amendment (Journalists’ Privilege) Bill 2010
Consideration of Senate Message
Bill returned from the Senate with amendments.
Ordered that the amendments be considered immediately.
(1) Schedule 1, item 1, page 3 (lines 13 and 14), omit “in the normal course of that person’s work”, substitute “is engaged and active in the publication of news”.
(2) Schedule 1, item 1, page 3 (line 17), omit “a medium”, substitute “any medium”.
That the amendments be agreed to.
My private member’s bill, the Evidence Amendment (Journalists’ Privilege) Bill 2010, is the so-called ‘shield law’. I add that the bill in essence gives journalists the right to protect an anonymous source’s identity unless a court can prove that the public interest is best served in disclosing the identity of the source—in other words, it would give protection to journalists who publicise information provided by sources choosing to remain anonymous. The bill is based on the premises that everyone has the fundamental right to free speech and that sometimes people need to speak out anonymously, especially when it comes to people blowing the whistle on official misconduct. Importantly, the bill is entirely consistent with the journalism profession’s code of ethics.
The amendments moved by Senator Ludlam in the Senate would broaden the scope of the bill and recognise the rapidly changing face of news, news mediums and the people who deliver it. The amendments would change the definition of ‘journalist’ from—
… a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium …
a person who is engaged and active in the publication of news …
The amendments broaden the definition of a journalist from the traditional, where someone works for a newspaper, radio, television station or newswire, to include those who work in what we call the new media—for example, those who blog, Tweet or who use Facebook or YouTube to publish news. They too are engaged and active in the publication of news and they too will sometimes be given information by an informant on the condition of anonymity. They too deserve protection, and these amendments would deliver that.
The simple fact is that technology is driving a seismic shift in the way news is delivered nowadays as well as how we consume news information. These amendments would allow the shield law to ride those leaps and bounds and remain contemporary. I would add, however, that the intent of this bill and these amendments is not to offer blanket protection to anybody and everybody out there making public comments—for instance, the many thousands of people posting comments online. Ultimately, the definition of a journalist as somebody who is engaged and active in the publication of news will direct the protection to those who genuinely deserve and require it. If uncertainty arises, the courts can be trusted to adjudicate. Central to Australia’s democracy is freedom of speech and freedom of the press. I believe that this bill and the Senate’s amendments go some way—an important way—to protecting both.
I speak in favour of the motion. The government is pleased to support the passage of the Evidence Amendment (Journalists’ Privilege) Bill 2010. The bill will ensure journalists have the confidence to report information that is in the public interest without fear of being held in contempt of court for failing to disclose their sources. It will also encourage a full disclosure of information that is within the public interest by reassuring potential sources that their confidentiality can be maintained. The key element of the bill is the introduction of a rebuttable presumption in favour of journalists’ privilege, based on journalist shield laws in New Zealand. This allows a journalist to refuse to disclose the identity of a source or provide information that would disclose that identity where the journalist has promised to maintain the source’s confidentiality.
However, there will also be circumstances where public interest considerations do demand disclosure. Therefore, the bill permits a court to overturn the presumption where it has been satisfied by a party that the public interest in the 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 the ability of the press to access sources of fact. The government considers that this is an appropriate balance and that our courts are well placed to carry out this balancing exercise.
The bill was always intended to ensure adequate protection for journalists and their sources. The amendments passed in the Senate clarify these protections, and the government supports these amendments as the amendments fit within the objectives of the bill and are consistent with the Commonwealth Evidence Act 1995. The definitions in this bill are modelled on the New Zealand journalist shield provisions, as I have indicated. The definitions of ‘journalist’, ‘informant’ and ‘news media’ rely on their ordinary meanings and allow the court to take a case-by-case approach. These amendments clarify the concerns expressed as to whether the New Zealand based definitions are technology neutral and cover all of those engaged and active in the publication of news.
In conclusion, this bill is an excellent example of how all sides of politics can work together in this parliament towards a common goal. I again thank the member for Denison and also Senator Xenophon for introducing this bill and for their willingness to work with the government on this important issue.
The opposition does not support these three amendments proposed by the Australian Greens and supported by the Labor Party, and I support the comments made by the shadow attorney-general, Senator Brandis, in relation to them. In particular, the coalition wishes to express the concern that broadening the definition of ‘journalist’ and activities that are captured by the Evidence Amendment (Journalists’ Privilege) Bill 2010 and removing ‘in the course of that person’s work’ and substituting ‘is engaged and active in the publication of news’ expands it beyond the reach of what a journalist does.
In the opposition’s view, it is appropriate and desirable to protect journalists, as the title of the bill indicates. ‘Anyone engaged or active in the publication of news’ could mean any person who, for example, publishes material on the internet or contributes to a blog—any citizen who, by any medium, publishes something that might be considered newsworthy. Our concern is reinforced by amendment (3), which substitutes for the words ‘a medium’ the words ‘news medium’, being a defined term in the bill the words ‘any medium’.
If these amendments from the Australian Greens were to be adopted, the whole purpose of this bill would be massively expanded beyond its original conception, which is to protect journalists’ sources in defined circumstances. It would not merely protect journalists, and it would not merely protect news media. It would be carte blanche for anyone who wanted to publish anything anywhere that might be considered news.
I ask members to pause to reflect on what this might mean, for example, for the operation of the laws of defamation. There is a case that the opposition has made for several years—before the government or indeed the Greens were interested in this issue—for protecting journalists’ sources. If you break the nexus between the privilege and the work of a journalist, what you then have is a blanket protection, albeit it subject to rebuttal presumptions, for anyone publishing anything anywhere that might be considered to be news, and that is not the purpose this legislation ought to be serving.
It is certainly not the purpose sought for it to serve in the opposition’s alternative legislation. We seek to protect the work of journalists as a profession in the course of their ordinary work as set out in the language of the bill in its existing form. We acknowledge that the protection of sources is, in appropriate circumstances, an acknowledgement of the protection of the legitimate work of journalists. But if we adopt these amendments, particularly amendment (2), then it ceases to be legislation that protects journalists at all. It creates a free-for-all in the publication of anything with no limitation. It would extend a protection meant to facilitate the legitimate work of journalists to anyone engaged in whatever form of opportunistic activities.
We would counsel very strongly against the adoption of these amendments from the Greens. At their most extreme level, they would entirely defeat the purpose of this bill, which is a narrow and specific but important public policy purpose—that is, to protect journalists going about their legitimate business. We would urge the House not to consider massively expanding this bill to enshrine basically anybody publishing anything anywhere at any time.
That the motion (Mr Wilkie’s) be agreed to.