Robert Oakeshott (Lyne, Independent) Share this | Hansard source

I welcome the Evidence Amendment (Journalists’ Privilege) Bill 2009 as well and pick up on the words of the previous speaker that it is a sign of the health of the democracy we live in. We hear many debates in this chamber about freedom and peace, which is quite often used as an argument to be less transparent and less accountable in some of the activities of government and public policy. However, the safe port for all of us in a free and peaceful society such as Australia is to be as transparent and as accountable as possible. This bill looks to take a step further towards that.

I am aware of a debate going on in the Philippines right now, on legislation called the Right of Reply Bill, where it is proposed that, if a journalist writes a story attacking a member of parliament, the member of parliament gets a right of reply in exactly the same spot in the paper in its next edition. I know that would draw many smiles from many members of parliament in this place. It is the result of an influence by public policy makers that is certainly not welcomed by the journalists, and I think it is not in the best interests of delivering transparency and accountability and, therefore, the logical extension of greater freedom and greater peace in countries such as ours.

This bill we are debating is good work by government. I am pleased to see that it has come forward. The bill extends a requirement for the court to consider any likely harm to the journalist if the evidence were made to be given, including damage to the journalist’s professional reputation and their ability to access sources of fact in the future. I could make a quip here that I look forward to the next cabinet meeting following the passing of this legislation—I suspect it might be a bit quieter than usual because, as a result of this provision, journalists will have an ability to get information from sources and protect those sources in a better way.

The bill also repeals the provisions for automatic loss of privilege in cases of misconduct. Now, the issue of misconduct or whether the communication between journalist and source was for an improper purpose becomes just one of several factors that the court will consider. The court must consider whether the relevant misconduct, along with all the other circumstances, warrants directing a journalist to breach the confidence of their source. The bill gives greater flexibility to the court by removing the requirement that courts give the greatest weight to any risk of prejudice to national security. The bill extends the scope of the privilege ‘in appropriate circumstances’ and privilege only applies at trial and pre-trial stages of court proceedings.

Obviously, as I have said, this enhances open and accountable government, which is vital to the democratic system. It improves the openness, transparency and accountability of government and the Public Service. A well-informed community through greater access to information is our safest protection for freedom, peace and democracy in Australia. It also allows for the appropriate balance to be struck between the public interest in a free press and the public interest in the administration of justice. It ensures that the court has relevant public interest factors in mind when exercising its discretion to direct that evidence of a protected confidence or protected identity information is to be given.

There are benefits for journalists in protecting confidential communications. The current law has operated too severely in mandating the loss of privilege. I pick up the point made by one of previous speakers that six journalists have been jailed in the past 18 months. I was not aware of that and I find that a startling figure. The bill also has some benefits for journalists’ sources. Protections for sources are strengthened by the bill, which requires the court to consider any potential harm to the source as well as to the journalist involved. I think the judges will also have a better ‘on balance’ role to play in terms of the balancing act between the public interest and the greater good of the country, balancing the protection of journalists with the protection of the public interest in the administration of justice.

The bill will require the court to consider whether a communication was made contrary to law in determining whether to direct that evidence to be given. The greater the gravity of the relevant misconduct, the greater the weight the court will be expected to give that particular factor, and there is a significant discretion for judges in weighing up factors, which I think is also an important step—placing faith in the judiciary to deal with those public interest questions. Greater flexibility is now being given to judges, and all factors are of equal value.

The bill does not negate all the problems and all the vexed questions that arise with these issues of public interest and privilege. So, although it does not mean to, it may frustrate legal action being taken against those who have made an illegal disclosure—I think that is something this chamber needs to watch into the future. Nor are the amendments designed to encourage illegal disclosures, I hope, but they might. Again, I think that is something to watch into the future.

With regard to the extension of the privilege provisions, the question is: does it go far enough? Should there be absolute privilege? I think the majority would say no; even the press need to be transparent and accountable where appropriate—again, no smiles on that point either, please! The extension of the privilege places a lot of faith in journalists to accurately report facts. Balancing the privilege and the responsibilities of a journalist is important. Again, I think that is something that everyone needs to keep an eye on and that everyone within the fourth estate needs to be very aware of. I would hope that the code of ethics is now re-read and reconsidered and that greater weight is placed by the journalism profession on checking their sources and accurately reporting facts—that adherence to the full code of ethics will be even greater now that this privilege is being extended even further for the profession.

One final issue is that it may be necessary to reveal sources to determine whether information is credible. The question then is: in what context will that happen? Again, I think that is one to watch into the future.

Broadly, this bill is a good sign that government is willing to move to further extend the confidential relationship privilege provisions for journalists. I think it reflects well on the state of play of Australian democracy and, as I have said previously, it reflects the fact that there is a greater commitment to the principles of transparency and accountability in protecting the freedoms and the peace of the country we live in. I support the bill.

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