Zoe Daniel (Goldstein, Independent) Share this | Link to this | Hansard source

DANIEL () (): by leave—I move:

(1) Schedule 1, item 36, page 24 (before line 8), before the definition of provides assistance, insert:

journalist means a person who is working in a professional capacity as a journalist for any of the following:

(a) a newspaper or magazine;

(b) a radio or television broadcasting service;

(c) an electronic service (including a service provided through the internet) that:

(i) is operated on a commercial basis, or operated by a body that provides a national broadcasting service (within the meaning of the Broadcasting Services Act 1992); and

(ii) is similar to a newspaper, magazine or radio or television broadcast.

(2) Schedule 1, page 30 (after line 20), after item 50, insert:

50A Paragraph 26(1)(c)

Repeal the paragraph, substitute:

(c) either:

(i) in the case of an item other than items 2 and 3—all the further requirements set out in column 3 of the item are met; or

(ii) in the case of items 2 and 3—all the further requirements set out in column 3 of the item are met or the disclosure is otherwise reasonable and in the public interest, having regard to all of the circumstances.

50B Subsection 26(1) (table item 2, column 2)

After "Any person", insert ", including a journalist,".

50C Subsection 26(1) (t able item 2, column 3, paragraph (c))

Repeal the paragraph, substitute:

(c) Any of the following apply:

(i) a disclosure investigation relating to the internal disclosure was conducted (whether or not under Part 3) and the discloser believes on reasonable grounds that the investigation was inadequate;

(ii) a disclosure investigation relating to the internal disclosure was conducted (whether or not under Part 3) and the discloser believes on reasonable grounds that the response to the investigation was inadequate;

(iii) this Act requires an action relating to the internal disclosure to be taken, including but not limited to a decision regarding the allocation or investigation of the disclosure and that action has either not been taken or not been completed within a required time limit.

50D Subsection 26(1) (table item 2, column 3, paragraphs (e) and (i))

Repeal the paragraphs.

50E Subsection 26(1) (table item 3, column 2)

After "Any person", insert ", including a journalist,".

50F Subsection 26(3)

Repeal the subsection.

I foreshadowed to the House that I planned to move amendments to this legislation during consideration in detail. I'm moving them on advice from experts who have been engaged in promoting whistleblower protections for years. I did raise the particular issue of journalist protections in discussions with the Attorney-General, and I appreciate his counsel and his reservations, but I still think that there is a particular question of the intersection between whistleblowers and journalists, and the vulnerability for both under the current regime, even under this proposed amended act.

I'm proposing amendments to section 26 of the Public Interest Disclosure Act, to add clarity and statutory recognition of the importance of journalists to whistleblowing. What I'm proposing is not exclusive. The media are going through a permanent revolution as the digital revolution rolls on. There are bloggers, websites and citizen journalists who are doing great work in holding the powerful to account. It's not my intention with the amendments to make journalists the exclusive preserve of this important work of the fourth estate, and the advice to me is that they would not be.

Whistleblowers would still be able to go where they will, but my amendments would enhance the protections for both reporters and whistleblowers. Part of my amendments insert the definition from the Corporations Act into the Public Interest Disclosure Act which reads as follows:

j ournalist means a person who is working in a professional capacity as a journalist for any of the following:

(a) a newspaper or magazine;

(b) a radio or television broadcasting service;

(c) an electronic service (including a service provided through the internet) that:

(i) is operated on a commercial basis, or operated by a body that provides a national broadcasting service (within the meaning of the Broadcasting Services Act 1992); and

(ii) is similar to a newspaper, magazine or radio or television broadcast.

There has been criticism of this law for its lack of clarity. It's not a law that's user-friendly, as the Federal Court judgement that I cited earlier today demonstrates. This amendment seeks to signpost to whistleblowers that journalists are an avenue to whom they can speak up in appropriate circumstances, especially if they hit roadblocks when they try to make internal reports.

The remainder of my amendments seek to improve the operation of the external and emergency disclosure provisions. Critically, my amendments will add a safeguard when whistleblowers do not tick all the highly technical boxes that they're currently required to but where their whistleblowing is in the public interest. And it will protect the journalists as well that they talk to. Two whistleblowers are currently on trial, and these provisions will provide an additional layer of certainty in cases like these. While the Attorney-General would argue that 'journalist' in this modern world is difficult to define, I would argue that if it's good enough for the Corporations Act then it's even more important here. I would also argue that the cases of Boyle and McBride show that other avenues to disclosure are often closed. Thank you to the Attorney-General for the consideration.

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I want to make clear that these amendments are not supported. The amendments go to, largely, the external disclosure provisions of the Public Interest Disclosure Act, which will be carefully considered as part of the stage 2 reform process that I've outlined both in introducing the bill and in summing up, which I just did a moment ago.

I'd say, more generally, that there's a real question about even the possibility of defining a 'journalist' in legislation, given the transformation that's occurring and which the member Goldstein has correctly acknowledged is occurring. One of the reasons why, when the Public Interest Disclosure Act was passed in 2013, we did not include a definition of journalist was that very difficultly, which was apparent even then in 2013. Of course, we'll look, as part of the stage 2 reform process, at the matter that is dealt with in this proposed amendment, and perhaps it's going to be an ongoing discussion between the government and the member for Goldstein. I thank her for raising the matter, but it's not supported before the House at this time.

Question agreed to.

Bill agreed to.

Ordered that this bill be reported to the House without amendment.