Senate debates

Monday, 15 November 2010

Evidence Amendment (Journalists’ Privilege) Bill 2010

Second Reading

12:59 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

I am pleased to have carriage of the Evidence Amendment (Journalists’ Privilege) Bill 2010 in the Senate, because I believe this Bill is long overdue and will have an extremely positive impact on our democracy and the public’s right to know.

This Bill will amend the Evidence Act 1995 to provide necessary protection for journalists and their sources.

For a long time journalists have been in a position at times when they would be required to provide anonymity for a source, in order to receive information that if broadcast or printed would be in the public interest.

But these agreements, which are standard across the world in many other democracies , posed considerable danger for journalists here in Australia because our laws did not respect a journalists right to protect a source.

If we value democracy we must respect free speech, a free press and the public’s right to know.

This Bill will strengthen our democracy because it starts from the assumption that a journalist and the media organisation he or she works for has a right to protect the identity of a source.

In my first speech in this place way back in 2008 I called for urgent reform in this area.

I specifically mentioned the case in 2004 involving Herald Sun senior political journalists Michael Harvey and Gerard McManus.

These two fine journalists wrote a series of articles about the then Howard Government’s decision to reject a $500 million increase in war veterans entitlements.

This was a legitimate news story that was clearly in the national interest.

And yet, these journalists were charged and convicted of contempt of court for refusing to reveal the source for their stories.

They were fined $7000 and now have criminal convictions on their records.

I have always thought that it was somewhat dubious when Governments of all persuasions call in the Federal Police to chase down the sources of leaks, given how much information the Canberra press gallery gets from all of us, and often on a background only basis.

And so they should get this information because our friends in the gallery perform a unique public service; providing information to Australian citizens.

My staff and I drew up this Bill after considerable discussions with affected parties.

I specifically want to acknowledge the input of journalist Chris Merritt, and John Hartigan and the Right to Know Coalition.

I was delighted for Independent MP Andrew Wilkie to introduce our Bill in the other place as his first Bill, because he too is committed to the protection of whistleblowers. Indeed he has first hand evidence of the need for these types of protections.

This Bill is the right thing to do, and not only that it also shows how, as politicians, we can all get things done if we are willing to work in a nonpartisan fashion.

I believe Bills like this show that Parliament is becoming more about a contest of ideas rather than a clash of personalities.

There’s been a lot of talk about new paradigms, and can I say today, I think we’re soaking in it.

The key element of this Bill is the introduction of a rebuttable presumption in favour of journalist’s privileges.

Under this legislation a court would have to rule that the disclosure of a source was in the public interest before they could compel a journalist to reveal a source.

And the court will have to prove that the public interest in disclosing a source outweighs the public interest in journalists having the right to protect their sources.

It is rightly a tough test and in practice it will mean in the vast majority of cases journalists will not be charged with contempt of court for refusing to reveal their sources.

This Bill isn’t just about journalists or whistleblowers.

It’s for anyone who reads a newspaper, or listens to or watches the news. This will potentially improve the quality of information that every citizen has available to them.

And if you believe in democracy, you have to believe in that.

I commend this Bill to the Senate.

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

This is the second time in two months that the Senate has considered legislation dealing with the introduction or expansion of the categories of journalists’ privilege. The first occasion was when I introduced a bill to substantially similar effect in this place on 29 September. Remarkably, and very late in the piece, the government has adopted Senator Xenophon’s bill which, as you know, had its origins in the House of Representatives as a bill introduced by the Independent Mr Wilkie as a co-sponsored government bill.

The history of this bill—that is, the bill currently before the chamber just introduced by Senator Xenophon—tells us all we need to know about the history of Labor Party foot dragging and recalcitrance when it comes to reforming journalists’ privilege. The fact of the matter is that of all the political interests represented in the Australian parliament, whether they be the coalition parties, whether they be the Greens or whether they be the Independents, the last political interest to come to the party on the shield laws was the Australian Labor Party.

Ever since this issue became notorious after the Harvey and McManus case several years ago, at which time I called for shield laws in a speech to this chamber which I gave from the back bench, the coalition has been moving in this direction. When I addressed the Public Right to Know Conference in Sydney two years ago this was one of the issues that was under consideration at the conference. It is a policy that the coalition took to the Australian people at the 2010 election, and which was resisted by the government. When I debated the Attorney-General, Mr McClelland, at the Australian Financial Review Attorney-General and shadow Attorney-General’s debate in Sydney a fortnight before the election Mr McClelland, on behalf of the Australian Labor Party, was still resisting law reform in this area.

It was only after the entirely unexpected circumstance of the political complexion of the House of Representatives after the election, which deprived the government of its majority and saw elected as the member for Denison Mr Andrew Wilkie, a person with a long history of interest and agitation in this area, that at last, under pressure of political circumstances, the Australian Labor Party came on board.

Let me just say that again: if it had not been for the fact that there was a hung parliament, to this day the Australian Labor Party would have been resisting journalists’ shield laws. But because of that situation, and because of what they perceived to be the need to propitiate Mr Wilkie, at long last the Australian Labor Party were forced to see the light. And so today they co-sponsor the bill introduced by Mr Wilkie in the House of Representatives and by Senator Xenophon in this place.

The bill which Senator Xenophon has introduced and the bill which I introduced on 29 September are substantially similar, though they are different in one material respect. They broaden the circumstances in which a journalist who is the recipient of confidential information from a source is entitled in a court of law or any other relevant form to refuse without pain or penalty to reveal or disclose that source. As I said years ago in this place when I spoke about the Harvey and McManus case, it has for a long time seemed to me to be an anomaly that the question of the confidentiality of journalists’ sources and its statutory protection should not be brought under the broad umbrella of the general law—most of it non-statutory—which protects commercial relationships. It is something that the Harvey and McManus case exposed very starkly.

I welcome Senator Xenophon’s bill. I would be bound to say that because it so closely resembles my own.

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

They do indeed, Senator Xenophon, and I am very proud to be associated with you in the prosecution of this cause, which I know you have prosecuted—if I may say so through you, Mr Acting Deputy President—with great sincerity and diligence in the years that you have been in the Senate. I am sure that if you had been in the Senate at the time of the Harvey and McManus case the issue would have been prosecuted by you even earlier.

Senator Xenophon and I have had a discussion and we have agreed, as has Senator Ludlam, that given the significant public interest in both bills—that is, the Wilkie-Xenophon bill, if I may so call it, and the coalition bill—it is appropriate that there be a reference to the Senate Legal and Constitutional Affairs Legislation Committee for a brief inquiry and report. I foreshadow a second reading amendment to this effect:

… the bill, together with the bill of the same title introduced by Senator Brandis on 29 September 2010, be referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 23 November 2010.

That is Tuesday of next week.

I understand that this is an inquiry that is being brought on at very short notice but that will enable the slight difference of approach between the two bills in relation to the breadth of the coverage of the protection to be ventilated. Given the extremely high level of public interest generated by this legislation, it seemed to Senator Xenophon, Senator Ludlam and me to be appropriate that there should be such a reference so that the stakeholders could have their final say on the two bills. By the near reporting date on Tuesday of next week it will still be possible for both bills, hopefully in a harmonised form, to be passed through the parliament before we rise for the Christmas recess.

That is all I want to say on the second reading debate. When I introduced my bill on 29 September I set out the policy reasons and, if I may say so, the ethical reasons why this is an appropriate piece of law reform. Having gratuitously attacked the Australian Labor Party for its extreme tardiness on this issue and its rank political opportunism in only coming to the cause at the last minute because of the political complexion of the House of Representatives I think I can let that matter rest without belabouring the point. On behalf of the opposition I move:

At the end of the motion, add: and the bill, together with the bill of the same title introduced by Senator Brandis on 29 September 2010, be referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 23 November 2010.

1:08 pm

Photo of Scott LudlamScott 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.

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.

1:25 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

In making this contribution to the debate, the government supports passage of the Evidence Amendment (Journalists’ Privilege) Bill 2010. Having recognised Senator Brandis’s amendment to refer this bill to the appropriate Senate committee—presumably the Senate legal and constitutional committee—the government certainly would support that motion. It seems entirely sensible. If there is a view that it should be a matter that a Senate committee should examine, then the government would certainly not be opposed to that. I understand Senator Xenophon has agreed to that process. Of course that will mean that, in terms of how this bill is then dealt with and the second reading contributions that we are making today prior to the Senate having examined, we may come back again after the Senate committee to have another second reading contribution. I suspect that is what people have also foreshadowed, or at least have indicated, by making short contributions. It is not a case that they would be speaking twice in the bill, but they may need to get leave to at least comment on the bill—or alternatively deal with it in the committee stage, which is usually a more appropriate way of dealing with it so that we do not have two contributions to a second reading debate, which would not be my preference as manager.

The government has long recognised the need for appropriate protections for journalists and their sources, having introduced amendments to the Commonwealth Evidence Act 1995 during the last term. Those reforms represented a step forward from the existing protections while remaining consistent with the framework of the model provisions agreed to by the Standing Committee of Attorneys-General. When parliament was prorogued earlier this year, the bill lapsed and the government declared its commitment to revisit the issue. Following constructive discussions with Senator Xenophon and the member for Denison, the Gillard government advised that it has given its support to this bill.

Journalists perform a crucial role in our democracy by making important information publicly available. This bill will support journalists in that task in two significant ways: (1) the bill will help ensure journalists have the confidence to report information that is in the public interest without fear of being held in contempt of court and (2) it will also encourage the full disclosure of information that is within the public interest by reassuring potential sources that their confidentiality can be maintained.

As the Attorney-General noted in his second reading speech to the House, the key element of this bill is the introduction of rebuttable presumption in favour of journalist privilege based on journalist shield laws in New Zealand. This allows a journalist who refuses 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 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, firstly, any likely adverse effect on the informant or any other person, secondly, the public interest in the communication of facts and opinion to the public by the press and, thirdly, the ability of the press to access sources of fact.

Such circumstances could arise, for example, in relation to matters that pose a risk to Australia’s foreign relations, law enforcement operations or where lives may be endangered. The government supports uniform evidence laws and will work with the states and territories through the Standing Committee of Attorneys-General to progress a harmonised approach to journalist shield laws. The bill will provide a good basis for the states and territories wishing to introduce laws based on rebuttable presumption in favour of journalist privilege.

In conclusion, this bill will provide an appropriate balance between the public’s ability to freely access information and the public interest in the prosecution of a crime. The bill is an excellent example of what can be achieved in this parliament through cooperation. I thank Senator Xenophon, the opposition and the member for Denison for their work, particularly Senator Xenophon and the member for Denison for introducing this bill and for their willingness to work with the government on this important issue. I indicate the government’s support for the bill, recognising that it will shortly be referred to the Senate committee and we will then resume at a later time to deal with the subsequent committee report and the committee stage of the bill.

1:31 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

in reply—I thank honourable senators for their contributions to this important debate. Reform in relation to protecting journalists’ sources is an important one. It is time we had this reform. It is time that journalists no longer feared jail for simply doing their job in bringing matters to the public interest that ought to be there for people to make your own judgment on.

I will refer briefly to the contributions. I acknowledge Senator Brandis’s longstanding interest in this matter. He has been an outspoken advocate for reform in relation to this. I note that he indicated—and I was not here then—his advocacy in the Harvey-McManus case when he was a backbencher. That would have taken an act of political courage, given that Messrs Harvey and McManus caused some embarrassment to the then Howard government in relation to the issue of veterans’ entitlements. I imagine it would not have been an easy thing for Senator Brandis to raise that, given the politics surrounding that particular case. Clearly it was wrong that Gerard McManus and Michael Harvey were dragged through the courts and sustained a criminal conviction for simply doing their jobs.

Photo of Jacinta CollinsJacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | | Hansard source

Do you remember the rat? I will tell you later. That is another story.

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

Senator Collins, I do not remember the rat, but I am sure you can illuminate me after I have had a chance to reflect on my colleagues’ contributions.

I know there has been some criticism by the opposition in relation to the Attorney-General not moving on this previously. The fact is that in all my dealings with the Attorney-General and his office he has been open and willing to advance this. It is also fair to note that when the Attorney previously moved on this area he received resistance from some of the states—ironically, some of his Labor colleagues were particularly hesitant to move in relation to reform in this particular area. So I do not think it is fair to ascribe blame to Mr McClelland as the Attorney-General for delays. I think he had some resistance from the states.

That brings me to Senator Ludlam’s contribution. The issue of ambiguity was raised. I want to make it absolutely clear that under the provisions of this bill a ‘journalist’ is defined as being:

... 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.

It is important to note that the definition does not specify the medium in which the information may be published, and in that way is technology neutral. Certainly, with the advancements of technology, it is important that we do not narrow the terms under which ‘a journalist’ may be defined when it comes to the format in which news and information is delivered. Further, the reference in the definition to that person’s work does not seek to define a journalist as someone who is paid; rather it is to distinguish those who are making one passing comment, from someone who is engaged and active in the publication of news. I think there is a clear distinction between the two. I want to put that on the record for the purpose of this, and I am happy to elaborate on that in the course of the committee stage.

Ultimately it is important to note that under this definition the court has discretion to determine whether or not a person meets criteria under the provisions of this privilege. That is why this is a huge advance on what has previously been the case. I note that Senator Ludlam has indicated that the Western Australian Attorney-General, Mr Christian Porter, has expressed concerns about these moves. I have already had a good but relatively brief discussion with Mr Porter when parliament last sat several weeks ago and hopefully I will be able to continue further discussions with Mr Porter. I hope to be able to convince him of the merits of this particular reform, because it is important that there is uniform law and I do not think Western Australia would want to be a bit like a shag on a rock—simply be isolated from other jurisdictions which are moving towards this reform. And I hope that Senator Brandis, as shadow Attorney-General, will be able to convince his Western Australian colleague of the merits of the reforms that he himself has proposed. There is one key distinction between what Senator Brandis has proposed—and that relates to whether the classes of persons obtaining privilege should be expanded to other professions. Perhaps comment on that should be delayed until the committee reports next Tuesday week.

In relation to Senator Wortley’s comments, I acknowledge her passion for this issue as a former secretary of the Media Entertainment and Arts Alliance in South Australia. I know of her concern for protecting journalists’ sources—for which this is a very important reform which would involve a new era for journalists in Australia—and acknowledge her long-standing interest in relation to this. I also thank Senator Ludwig for setting out his position. As I understand it, there was Labor Party policy for reform in relation to this back in 2007. It is pleasing that we are all coming together to reform the law in relation to this. So I thank my colleagues for their indications of support. I also thank the member for Denison, Andrew Wilkie, for working together with me in relation to this. I am also grateful for the work of the federal Attorney-General’s office—in particular, Ms Elizabeth Brayshaw—for the way that the Attorney-General’s office has worked with me on this particular issue.

I am looking forward to the committee’s report, and I am looking forward to the passage of the legislation for this long overdue reform in the Senate next week.

Question agreed to.

Original question, as amended, agreed to.

Bill read a second time.