Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

The bill before the House today demonstrates the government’s willingness to work constructively with other members of this parliament and reach agreement on significant issues. The Evidence Amendment (Journalists’ Privilege) Bill 2010 is such an important bill and the protections it provides reflect the wishes of all sides of politics. The government is committed to open and accountable government. As part of this commitment the government has long supported the implementation of appropriate protections for journalists and their sources.

In the last term amendments were proposed to enhance existing provisions in the Commonwealth Evidence Act 1995 introduced by former Attorney-General Mr Ruddock. These reforms were recognised as improving the current protections in a manner that was largely consistent with the spirit of the Standing Committee of Attorneys-General’s decision, and that is a significant point because the drive for consistency of evidence law across Australia is an important consideration, as acknowledged by the previous speaker. However, those amendments were not passed before the parliament was prorogued. During the 2010 election campaign I indicated that the government would consider revisiting the issue of journalists’ shield laws and I am pleased to report that in revisiting the issue the Gillard government has worked constructively with Mr Wilkie and also Senator Xenophon to address these concerns. I commend both of them on their work. As a result the government has given its support for this bill, which we believe appropriately balances the needs of all parties.

There is no doubt that journalists play an important role in our society by providing the community with access to information that is in the public interest and the press must be given freedom to perform that role effectively. That freedom may be undermined where journalists are not confident that they can protect the identity of their sources without being held in contempt of court. Accordingly, sufficient protection must be in place to ensure that journalists can maintain the confidentiality of their sources, thereby encouraging the full disclosure of information that is within the public interest. The protections in this bill we believe are not dissimilar to those that were introduced by the government last year. However, in supporting the bill the government has listened to stakeholders, who indicated that those protections could be improved by including a presumption in favour of confidentiality and that has been included in the bill proposed by the member for Denison. In particular I would like to acknowledge the contributions from journalist Chris Merritt and also Mr John Hartigan and the Right to Know campaign.

The key element of this bill is the introduction of a rebuttable presumption in favour of journalists’ privilege. Essentially the framework, as has been noted, is based on that which operates in New Zealand. This means that where a journalist has promised to keep the source confidential they will be entitled to refuse to answer questions or produce documents that would disclose the identity of the source or enable that identity to be discovered. However, as has been noted, the protection is not absolute, nor should it be. There will be circumstances where a court considers the public interest in disclosure is such that the information should be disclosed. But this bill does so in a way that guides the court’s task on this important subject in exercising its discretion. The presumption will only be rebutted where a court is satisfied that the public interest in disclosure outweighs any likely adverse effect on the informant or any other person, the public interest in the communication of facts and opinion to the public by the press and finally 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 or law enforcement operations or where lives may be endangered. As the New Zealand High Court has stated, any case in this area will involve such a contest between, as they say, two important aspects of the public interest. The first is the public interest in the investigation and prosecution of crime and the second is the public interest in the free flow of information and the protection of journalists’ sources.

The case law from the United Kingdom and New Zealand, where the laws are not dissimilar, highlights that there can be a range of factors that the courts will take into account to determine if the presumption should remain. This includes other measures by which the evidence can be obtained, the seriousness of charges involved or harm caused if the source is not disclosed. As the authorities indicate on their facts, these are matters which will necessarily vary from case to case—for instance, the presumption may not be found to apply where the journalist or his or her source was clearly acting from a position of malice and nondisclosure would prevent a potentially defamed citizen from seeking appropriate redress.

In this context, as noted in the explanatory memorandum to the bill, it is important to note that this protection operates alongside the Australian Journalists Association code of ethics. Journalists are expected to let their sources know they are a journalist. As has been noted by the member for Denison, they are expected to:

Use fair, responsible and honest means to obtain material. Identify yourself and your employer before obtaining any interview for publication or broadcast. Never exploit a person’s vulnerability …

The code also makes it clear that journalists should not lightly depart from the principle of attribution and that, when anonymity is sought by the informant, a journalist should not agree without examining the person’s motives. In that context, the code states that journalists should:

Aim to attribute information to its source—

that is the starting point, but—

Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source.

This is a significant power that journalists have. An article in a newspaper can be as adverse to a person’s reputation as any finding in a court of law, but of course a person suffering that adverse comment is not afforded the same procedural fairness that they would have in a court of law. So this is a very significant privilege that journalists will obtain. When any significant privilege is given there is an equal responsibility to exercise that privilege in a responsible way, as the journalists code of ethics implores professional journalists to do.

The government is committed to the promotion of uniform evidence laws across Australia. I note the previous speaker also commented on this matter. The bill paves the way for the states and territories to introduce journalist shield laws based on the rebuttable presumption in favour of journalists’ privilege. Victoria has indicated its intention to move similar amendments. I will be working with my state and territory counterparts to progress such a harmonised approach.

In conclusion, this bill will give journalists and their sources greater confidence and facilitate the responsible reporting of information to the public. I again commend the member for Denison. The bill will contribute to transparency and accountability in government and, in turn and in its own way, add something to the vibrancy of Australia’s democracy.

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