Darren Cheeseman (Corangamite, Australian Labor Party) Share this | Hansard source

I rise to speak on the change to the confidential relationship privilege provisions of the Evidence Act 1995. I do this because I think there is something here that is fundamental to our democracy. This is about an aspect of freedom of speech and the mechanisms we have to get facts and information out into the general public that otherwise might be suppressed, hidden or covered up. The Evidence Amendment (Journalists’ Privilege) Bill 2009 is about a part of the crucial matrix of checks and balances that go together to make up the fabric of our democracy.

We currently have a legal basis to provide a privilege at the trial and pre-trial stage of civil and criminal proceedings for communications made in confidence to journalists in certain circumstances. The Evidence Act 1995 provides for a professional confidential relationship privilege in some cases in court proceedings. This prevents the adducing of evidence that would disclose confidential communications made by persons to a journalist acting in a professional capacity or the contents of a document recording such a communication or information about the identity of the person who made the communication. Basically, there is a certain legal basis journalists can rely on to protect their sources in some circumstances. The privilege is granted at the court’s discretion but within quite restricted guidelines.

This bill gives greater flexibility to the judiciary and adds new factors which can be taken into consideration. Very importantly, the bill will allow the court to consider harm to a journalist’s professional reputation and their ability to obtain information if they are forced to reveal a source. That is a very important consideration for any journalist when it comes to a judicial crunch point and I will watch with interest how this is interpreted.

There are many in the public—and maybe even in this place—who see this issue as relatively trivial or hypothetical, but that clearly is not the case. It is not trivial and it is not hypothetical. According to the journalists association—the Media, Entertainment and Arts Alliance—six journalists have been threatened with jail over protecting confidential sources in the past 18 months. This is absolutely not hypothetical. Around this country today journalists are put in real positions and have to make real choices.

It is not trivial either. Some of the biggest and most important stories have been broken using confidential sources. The Queensland government under Sir Joh Bjelke-Petersen, which of course comes to mind, police corruption in New South Wales in the 1980s, the underbelly of Victoria and New South Wales over the past two decades—these are vitally important stories that go to the heart of public institutions and our democracy. These stories ran and collected momentum and some of the most powerful people in this country were either disgraced or jailed. It would be interesting to be able to rewind history and see what would have happened if journalists were not able to utilise confidential sources in their reporting of these stories and cases.

Australia has had some spectacular stories about corrupt politicians, public servants and businesspeople. I believe this is extremely healthy for our democracy. It is healthy because these stories are out there and convictions have resulted. In other countries these stories may have never seen the light of day. These politicians, these businesspeople and these public servants would still be running our country. An ex-Premier has been jailed and another disgraced, and the rotten core of the rampant New South Wales Police corruption in the 1980s was exposed in all its ugliness. I doubt a lot of these stories would have got out without the use of confidential sources.

Think about the good that came out of the work that Chris Masters did on the ‘moonlight state’, as he put it, on Four Corners. Phil Dickie from the Courier-Mail is another fearless journalist, and of course there are many others. Of course some of these stories did come out under the existing laws, but I think these stories and these exposures show how important journalism is, particularly investigative journalism.

Some of the current structure should be loosened to ensure that journalists are able to do their utmost in reporting these circumstances. Of course, in framing legislation like this there is no simple answer and it is a question of judgment and balance. I come down on the side that says that we should protect journalists to a greater degree to ensure society has access to information—important information in preserving our democratic state—that might not otherwise see the light of day.

Journalists today are put in very difficult positions by bodies such as the Crime Commission and anticorruption commissions around the nation. Often there are good public interest reasons for doing this. There can be good public interest reasons on both sides of the argument, but I do think it is important that more weight be given to the ongoing role of journalists and their credibility over time. When working previously for a union and for the City of Ballarat as a councillor and working now as a federal member of parliament I have come into contact with many journalists. I would rate a number of those journalists as some of the gutsiest people I have met. Think about the courage it takes to expose corrupt people from the underworld.

Currently, in exercising its discretion over whether a journalist may have a legal right to protect a source, the court must take into account certain matters and must give the greatest weight to national security. Journalistic privilege is automatically lost where a communication was made in the furtherance of the commission of an offence, fraud or act that attracts a civil penalty. This bill will remove the requirement that national security be given the greatest weight, though it will make it clear that it is still a factor the courts are bound to consider. This amendment will provide greater flexibility for the court by allowing it to determine the weight to be given to a particular risk of prejudice to national security based on the evidence before it. The greater the risk of prejudice to national security and the greater the gravity of that prejudice, the greater the weight the court will give to this factor and the less protection it will afford a journalist and his or her source.

I think these laws achieve a far better balance. The bill will also remove the automatic loss of privilege where the communication to a journalist was made for an improper purpose. Instead, the court will be required to take this issue into account in its exercise of discretion. This amendment enables the possible application of journalist privilege to cases where a communication between a journalist and their source is itself an offence, such as a public servant’s unauthorised disclosure of information obtained in the course of official duties to a journalist in contravention of section 70 of the Commonwealth Crimes Act 1914. To assist the court to frame its consideration of whether to grant the privilege in any particular case, this bill includes a new provision directing that there be a balance between the public interest in the administration of justice and the public interest in the media communicating facts and opinions to the public and, for that purpose, having access to sources of facts.

This is not an easy bill to frame. It is about balance. The journalistic community is a diverse bunch. Of course, we politicians do not agree with everything journalists do. That is in the nature of our relationship, and it should not be anything other than that. But I do not think anyone can argue about the Australian media and Australian journalists being central to our democracy. In my view, they need room to move and some special consideration due to the importance of the role they play in our democracy. The Rudd government noted this in the run-up to the last election and we are delivering on that commitment today. These laws allow flexibility and allow our judiciary to weigh up a wider range of issues in the consideration of the confidentiality of journalists’ sources.

This bill, without doubt, enhances transparency and accountability of government. These laws, at the end of the day, are not about protecting journos; they are about protecting our democracy. Can you imagine these laws being put into place in Fiji, Zimbabwe, China? I suspect not. These laws are, quite simply, a measure of the health of our democracy and our willingness to protect the best interests of our society and, of course, to test it at each step. And I am quite proud to stand here and commend the bill to the House.

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