George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

I advise the Senate that the amendments were in fact circulated last November. As I said in my earlier remarks, the approach of the opposition has been to attempt to incorporate appropriate journalists’ privilege within a broader and more consistent framework for the protection of professional confidences. The difference between our approach and the approach reflected in Australian Greens amendment (2), which has just been passed, is that we limit these protections to professional relationships—the sorts of confidential relationships which have traditionally been protected by the courts in other analogous areas, but most commonly professional relationships.

We say the profession of journalism and the confidences of which journalists are, in the course of their work, the recipients, ought appropriately to be brought within that class of relationships, but brought within that class of relationships in a way that seeks to achieve consistency with the law’s protection of other acknowledged confidential relationships. That is the approach of the New South Wales Evidence Act, which guides our approach here.

Without revisiting the debate we just had a few moments ago, our concern, as I said, was that the Greens amendment, which has now been adopted by the committee, would expand very significantly the scope of the protection and hence the scope of the material which might be withdrawn from the court, not by reference to a new category of professional confidence but by reference merely to the activity in which the person seeking to invoke the privilege was engaged—that is, the act of being ‘engaged and active in the publication of news’.

In answer to the charge that we were seeking to narrow but are now seeking to expand, what we were in fact seeking to do was to develop a rational scheme for the protection of confidences which does not regard the nature of the activity as the key criterion or point of discrimination, but which rather identifies one discrete and specific form of professional confidence—that is, a confidence given by sources to journalists—and seeks to accommodate that within a rational scheme which reflects, by and large, the current law but which protects confidential relationships.

Courts acknowledge the availability of confidentiality in these circumstances not by reference to the activity but by reference to the nature of the relationship. That is the point of distinction. What you seek to do, Senator Ludlam—and the government has gone along with you—is to define whether a confidence should be protected by reference to the nature of the activity. What the opposition say is that that goes far too far. What we should do, in an orthodox way, is continue to extend the privilege by reference to the character of the relationship and, by taking one further step, bring the relationship between a journalist and a source into the existing categories of professional relationships which the law protects.