Senate debates

Monday, 15 November 2010

Evidence Amendment (Journalists’ Privilege) Bill 2010

Second Reading

1:17 pm

Photo of Dana WortleyDana Wortley (SA, Australian Labor Party) Share this | Hansard source

The Evidence Amendment (Journalists’ Privilege) Bill 2010 amends the Evidence Act 1995 by strengthening the protection provided to journalists and their sources. This bill 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, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable their identity to be ascertained. This is based on the premise that it is vital that journalists can obtain information so they can accurately inform the Australian public about matters of interest.

These protections are known as shield laws, and their importance cannot be understated. As Nelson Mandela once stated: ‘A critical, independent and investigative press is the lifeblood of any democracy.’ He also said that the press must enjoy legal protection so that it can protect the rights of citizens—‘It must be bold and inquiring without fear or favour.’ In my previous role as the South Australia and Northern Territory Secretary of the Media, Entertainment and Arts Alliance, I witnessed how important it is for journalists to be able to scrutinise those in power without fear of being prosecuted or even jailed. I did this as I sat in court supporting an Adelaide journalist.

I know that, in the course of their employment, journalists are frequently given off-the-record information from confidential sources. The current situation is that, if a court compels a journalist to reveal his or her sources and they do so, the journalist is in breach of their professional ethics—the Australian Journalists Association’s code of ethics. If they refuse to reveal the identity of a source despite being ordered by a court to do so, they risk criminal prosecution for contempt of court.

Australia currently ranks 18th on the World Press Freedom index—up from equal 38th with Malta, France, Cypress and Dominica. Australia is one of about 70 nations deemed to have a ‘free’ press. A further 70 have a ‘partly free’ press, and more than 50 are listed as ‘not free’. We need to guard and protect the freedom of our media in this country. That is why this bill is so important. It enables a robust defence of a journalist’s right to protect their sources. It will contribute to the freedom and strength of the media in Australia by repealing parts of the Commonwealth law applying to all prosecutions for Commonwealth offences, including those heard in state and territory courts. Under this proposed law, prosecutors or anyone wishing to discover the identity of a journalist’s source must provide enough evidence to overturn a new legal presumption in favour of protecting sources.

Contrary to what some of those opposite and those on the independent benches are saying, the Gillard government was always committed to reassessing its position on shield laws pending its re-election. Attorney-General Robert McClelland personally gave a public commitment to revisit the issue of shield laws if re-elected—and now we keep that promise. The government is also urging all state and territory governments to adopt similar provisions at a state level as part of uniform evidence laws. We are seeking a harmonised approach to journalist shield laws across Australia. It is vital that journalists can obtain information so they can accurately inform the Australian public about matters of interest. Accordingly, strong protection must be provided to enable the full disclosure of information. This bill includes 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.

When introduced, this bill will begin a new era for journalists in Australia. It will prevent prosecutions such as those of journalists Gerard McManus and Michael Harvey, who in 2007 were convicted of contempt of court and fined $7,000 each for refusing to reveal the source behind the stories they wrote in 2004 for the Melbourne Herald Sun newspaper. The charges related to an exclusive report that exposed a federal government decision to reject a $500 million increase in war veterans’ entitlements.

Media Entertainment and Arts Alliance Federal Secretary, Christopher Warren, said the pair should never have been charged because they were caught in the middle of a campaign by the Howard federal government against whistleblowers and as a result they were charged. At the time, the presiding judge stated that, despite upholding a professional code of ethics to protect their sources, journalists were not immune to criminal charges. He went on to say that until the law was changed, journalists remained in ‘no different position than all other citizens’.

Journalists should never be convicted for doing their job accurately and for acting in the public interest. They must be able to protect their sources in accordance with their Australian journalist code of ethics. Sources, to some extent, are the lifeblood of their work and investigative journalism can be seen to be the lifeblood of a healthy democracy. It is time for a national agreement on shield laws, and the presumption by courts should be in favour of protecting journalists’ sources. I am in favour of greater legal security to protect confidential sources. Journalists should not live in fear of being jailed and should not curtail telling the truth for fear of being jailed.

The freedom of the fourth estate—that is, the profession of journalism—in this country is closely linked to our success as a democracy. In an address in Dublin in 1997, the then Chief Justice of Australia, Sir Gerard Brennan, spoke of the importance of the fourth estate during a lecture series on ‘Broadcasting, Society and the Law’. He said:

The popular media are more familiar to us than the street in which we live, more pervasive than the aromas of the kitchen, more influential with many than the Sunday sermon.

He went on to say:

They inform, they entertain, they prescribe fashion, they form tastes, they mould attitudes and values. They present the three branches of Government to the people. The Fourth Estate is not a fourth branch of Government but, in the life of a free and democratic society, it has great power and influence.

That power and influence, when used wisely and responsibly, should never be diminished. Under current laws, journalists could choose to fall back on their ethics and defy the law and take the risk of being convicted, fined or going to prison. This new law will come to grips with the reality of how journalists work and reduce the risks that journalists could be jailed for refusing to reveal in court the identities of their confidential sources. Those who wish to discover the identity of journalists’ confidential sources will then bear the onus of persuading a judge to overturn the law’s presumption in favour of confidentiality. To get the mix right is crucial—that is, the media must behave honourably and responsibly in its pursuit of truth and its dedication to informing the public, and the law must achieve a practical understanding of the vital role played by the media in a healthy democracy and give it space to do its job properly.

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