Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Hansard source

I rise to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2009. I refer the House to the report of the Senate Standing Committee on Legal and Constitutional Affairs on this bill, which was tabled on 12 May. The coalition acknowledges and endorses the stated objectives of the bill. However, in its current form the bill falls far short of achieving those objectives. The coalition opposes this bill in the House and will move amendments in the Senate.

Respect for freedom of speech has been an absolute hallmark of our legal system and indeed of Liberal Party history and values, and a free and fearless press underlies our democracy. I would like to quote from an article in the Australian by Caroline Overington—’State of secrecy’. She says:

The ordinary member of the public probably has no idea how difficult it is to get even the simplest information out of government.

Under existing law and protocol, anybody employed by the government—that can mean a nurse, a police officer or a bus driver—is threatened with disciplinary action if they speak to the media.

…            …            …

In recent weeks, the Rudd Government has busily been insisting that it has, or is, delivering on its promise to make government more transparent. Last Friday, for example, Attorney-General Robert McClelland congratulated himself for introducing to parliament the Evidence Amendment (Journalists’ Privilege) Bill 2009, otherwise known as the Government’s shield laws for journalists.

McClelland says the law will provide “much-needed protection for journalists”, but it won’t do any such thing. It won’t give a journalist the right to protect their source and it won’t place the onus on the government (or any other agency) to explain why a source should be exposed.

All the change will do is give judges some discretion when dealing with journalists who won’t reveal their source.

That is the problem: the approach of this bill is to amend a regime that relies entirely on judicial discretion as to whether privilege attaches to confidential communications between journalists and their sources. Under the regime of guided judicial discretion there can be very little certainty as to whether a court will ultimately compel disclosure of those communications or identification of the source.

The law in this area has moved relatively slowly until recent times. Not only here but in the United States, Britain and New Zealand there have been examples of journalists who have opted to be prosecuted, fined or even jailed rather than betray their ethical and conscientious undertakings to their sources. All members of the House will be aware of recent examples in this country.

The right of someone to withhold information from a court must be carefully considered. After all, it is the purpose of a court to ascertain facts and there should be as few obstacles to that process as possible. The approach that has always been taken in the common-law world is that the facts should be made available, and compelled where there is a resistance to that obligation, unless there is some overriding public interest in protecting material from disclosure. Thus, communications between lawyers and their clients have traditionally been protected because it is necessary for the administration of justice that people can be completely frank with their legal advisers. The common law has protected husbands and wives from testifying against each other, because society respects the sanctity and privacy of the home.

Our society also recognises that the public interest and our public institutions are served and strengthened by the free communication of facts and opinions by the news media. We also recognise that there are circumstances in which the source material is provided to journalists in circumstances hazardous to the provider—whether to their personal safety or to their other interests. Sometimes that material is provided despite the existence of other legal obligations not to provide the material. We recognise, as we do in relation to legal professional privilege, that the public interest in free communication is subject to equally valid competing considerations and cannot be absolute.

The laws relating to the relationship between journalists and sources have sought to strike a balance between those considerations, to be weighed by a judge as each claim arose. The opportunity has now arisen in this place to revisit the way we try to strike that balance. A similar inquiry is underway in the United States. Recent changes have been made in the United Kingdom and New Zealand. The approach there has been to seek to provide some certainty in advance. This is nearly always a preferable course. It is a course that found sympathy in the dissenting report of the Liberal senators on the Senate Standing Committee on Legal and Constitutional Affairs. Rather than our making piecemeal adjustments to the existing regime, now is as good a time as any for us to revisit the test in its entirety and provide some certainty.

In conclusion, the Liberal senators have proposed that—as is the law in New Zealand—where there have been confidential communications between a journalist and a source, a court may not order disclosure of those communications unless it can be established that the public interest in the disclosure outweighs both any adverse effect on the source or any other person, and the public interest in the communication of facts and opinion to the public by news media. This is the test that is favoured by our side of the House.

See this speech in context