Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I rise to briefly add some comments on the understanding that this is a matter which will come back to the chamber next week and be discussed in more detail. I want to put the position of the Australian Greens on record at this stage in the second reading debate that we will be supporting this bill. It is a principle that we have supported for many years but particularly in the process that Senator Brandis alluded to of investigating the government’s proposal for shield laws.

This was something that the committee investigated some time ago and it became very obvious through that process that almost exclusively all witnesses to that committee process indicated their support for a rebuttal presumption in favour of protection of journalists’ sources. We do not trespass on the courts’ powers to adduce whichever evidence it sees fit lightly, but this is indeed an exception that we believe is very important. It is not something that you would pass lightly because the general principle obviously is that the court should be able to take whatever evidence it sees fit from either side of an argument. Setting up this exception protecting a particular occupation and their right to protect their sources is something that you would need to do with a great deal of foresight and care.

However, on the basis of the evidence that was received and from long experience overseas as well we certainly came down in support of this bill. Effective shield laws for journalists and whistleblowers, whether they come from the Public Service or wherever, act as a fortification against wrongdoing and, actually, as an encouragement to vigilance and integrity. We believe we owe it not just to the journalists for whom this would most specifically apply but to the people who disclose matters to them in the public interest in the expectation that it might be published often at great risk to themselves, to their careers and to their own wellbeing.

We believe, of course, that a strong and independent press is an essential safeguard for a democratic society and I believe that this view is shared by the members of the Senate and the vast majority of Australians. Most of the submissions, as I said, that the parliament received on the government’s original bill favoured greater source confidentiality protection. Legislation in most democratic countries with institutions similar to our own provides for rebuttable presumption of journalists’ privilege, which is different to an absolute assumption as, I think, exists in Germany. The United Kingdom, which is the source of our Westminster system, New Zealand, which is commonly cited, and many states of the US all provide legal protection for journalists’ sources.

The reform that we are discussing today was a very long time coming. Through cooperation between parties and Independents in this newly diverse parliament, we have seen a good outcome—a comprehensive piece of legislation that addresses concerns that we raised about the government’s lapsed Evidence Amendment Bill 2009. I would highlight that point that Senator Brandis raised before which is that the government have been dragged into this one. When they realised that they did not have the numbers, that the opposition parties in the Senate were going to do what to our minds looked like the obvious thing to do and improve the government’s bill, they did not actually bring it to the chamber to have the debate—they withdrew it. It disappeared and fell out of sight. It disappeared from the government’s reform agenda. So now we are seeing quite a vivid example of what happens when you create greater diversity of voices and opinions in the parliament which is that governments, whether dragged kicking and screaming or not, are actually brought into the debate. Now, with the consent of all members of the Senate, subject to what the Senate Standing Committee on Legal and Constitutional Affairs provides us with over the next couple of days, we will see this bill finally put through the parliament.

The journalists who work on a voluntary basis—the citizen journalists, the bloggers, the independent media collectives and so on—also need the protections afforded by this bill. This is an issue that I was going to raise in the committee stage and test the government’s and the opposition’s views on this matter with the recognition that this is not simple. We have not sought to bring an amendment to the bill that tinkers with the definition of ‘journalist’. Down that path possibly we get ourselves into a bit of trouble, but I hope that all sides of this chamber can agree—and we will test these views in the committee hearing that is coming—that it should not rest on whether or not your work is paid as to whether these protections are afforded. The test that we are looking for is whether or not it is in the public interest for the source to be protected.

Vexatious or malicious reporting can occur in the News Corp press, in the Fairfax press, on the ABC or in the independent media. It is not something that should depend on whether you are paid to put the piece together or the platform on which you are published. What we are seeking, and I am happy to foreshadow this now in the second reading debate, what we will certainly try to clarify during the committee process and if we take this bill into the committee stage next week, is that we are satisfied with setting that ambiguity to rest and making sure that the parliament is clear—if this matter ever does come before a court as shortly one day it will—that we did not intend that a journalist needed to be paid for that piece of work to be published or to dictate the platform in which it was reported. What we are doing effectively is leaving it for the court to decide whether or not the source disclosure was in the public interest at the time and we would let that decision be made there as appropriate.

My reading of the bill is that it would extend the protection in this way, but we are seeking to lay that ambiguity to rest. We would be seeking Senator Xenophon’s views as the mover of the bill, also the government’s view and Senator Brandis’s view, if he would care to offer it in his comments next week. There are people within independent media, whether they be citizen journalists, bloggers or whatever, who volunteer their time and their efforts to contribute to public awareness. We think that the source protection there should apply just the same as if they were being paid by one of the major national dailies or indeed the ABC.

The media does fulfil such an important role in civil society; it wields an enormous influence and that power must be wielded responsibly. We saw during the last federal election, in my view, the misuse of that power. We are also having this debate in the context of media ownership, with moves by Mr Packer to take up a greater shareholding in Channel 10. We need to revisit the debate about the power of the concentration of media ownership in this country. This bill touches on that to a degree.

While we all acknowledge that source protection is essential and that that presumption should be in Australian law, the bill also increases the responsibility on journalists to use the enormous power that they have in Australian society responsibly. The legislation, on my reading, is intended not to prevent abuse of that power but to protect journalists who are acting in the public interest, and I think that is where that test should lie.

The bill, in combination with observance of the highest ethical standards by the Australian media, will contribute to an atmosphere conducive to accountability and integrity in our public and private institutions. I thank Senator Xenophon for bringing the bill forward. This is a very useful debate for this parliament to have. But as a Western Australian senator I do acknowledge some degree of concern and alarm that the Western Australian coalition Attorney-General, Mr Porter, is the only Attorney in Australia, as far as I am aware, who is on record as being in opposition to the very straightforward and common-sense position that is being advanced here. I would like to add my voice to others calling on the Western Australian Attorney-General to reconsider that position or to at least be clear what on earth it is about. It is time that Australia moved forward with these reforms and it would be an enormous shame if Western Australia was left behind.

These cases are very clearly not academic in Western Australia. We saw the very high-profile example of the police raid on the Sunday Times. Reporter Paul Lampathakis had quite clearly embarrassed the Carpenter government with a quite high-profile piece, and the response of the Western Australian state government was to raid the office of the newspaper. In Australia we need to be very, very careful in instances where a state government believes it is okay to send the police around to a major media outlet because a politically embarrassing story has found its way into a newspaper. That is the kind of abuse that these laws are intended to protect—they are to protect people working in the public interest.

I will conclude my comments there. I very much look forward to participating in the, albeit very brief, committee work that will surround this bill. We will pick up our comments later this week when this bill returns to the chamber.