Robert McClelland (Barton, Australian Labor Party, Shadow Minister for Foreign Affairs) Share this | Link to this | Hansard source

I rise to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2007. The bill represents an attempt at a quick fix to a somewhat complex issue. It moves to provide a form of professional privilege in the Evidence Act 1995 for the purpose of protecting journalists who refuse to name their sources.

There are two main reasons why the bill is being pursued by the government at this point in time: the first is to have regard to advocacy from the recently formed coalition of media interests under the banner of the Australia’s Right to Know campaign; and the second is in response to the case involving Harvey and McManus, both of whom are respected journalists. We would be well familiar with the circumstances that they found themselves in in undertaking their professional duties. I will make comment on these reasons in my concluding remarks, but firstly I will examine the detail of the bill.

The bill is modelled on division 1A of the New South Wales Evidence Act 1995. But there is a difference: on the one hand, the New South Wales act proposes a general scheme of protected confidence; on the other hand, this bill before us, as the title suggests, is more limited in its application. Under the New South Wales provisions the protection of professional privilege is defined with reference to conduct. In this bill the offence is defined exclusively with reference to a class of persons—namely, journalists. While the New South Wales example, for instance, would allow other professions to access the privilege, the definitions in the bill we are debating set up a system of protected confidentiality whereby only journalists may be entitled to privilege if they are communicating in confidence while, firstly, acting in a professional capacity and, secondly, acting under an express or implied obligation not to disclose the contents of the communication.

Proposed section 126B provides the means by which the court may exclude evidence derived from a protected confidence. Evidence may not be adduced where it would disclose a protected confidence, its contents or information regarding a protected identity. An application for exclusion may be initiated by a party or on the presiding officer’s own initiative—that is, at the court’s own discretion.

While those provisions are consistent with the New South Wales template, an important difference occurs with the issue of judicial discretion on when to allow the exclusion of evidence because of the potential harm it could cause to a journalist. Under section 126B(3) the evidence must be excluded when harm would occur to the protected confider if the nature of the harm outweighs the value of the evidence to be adduced. But subsection (4) specifies that the greatest weight must be given by the court to any risk of prejudice to national security. Therefore, the key diversion from the New South Wales template on which this bill is based is the removal of the discretion in the consideration of national security information. That criterion does not appear in the corresponding list of items to be considered in the New South Wales act. This, of course, may be a reflection of the differing responsibilities of our respective levels of government. Nonetheless, there are some overlaps in those national security issues. In short, however, we see that the application of the privilege comes down in large part to judicial discretion.

There has been some comment that judicial discretion is undesirable and that journalists should be afforded some type of absolute privilege by raising the issue. In that context, we would point out that absolute privilege does not apply even for lawyers and certainly not for politicians, priests, doctors or any of the other professions. They are all subject to elements of judicial discretion. Judicial discretion in these matters is not something to be afraid of. Indeed, we think it is something that makes the balancing of the respective and competing interests desirable. The parliament is best placed to provide a framework, but, in constructing rules, we cannot foresee all events and circumstances. That is why we believe these matters are best weighed in each instance on the particular facts of the case at hand.

Proposed section 126C provides for loss of privilege when the journalist consents to the evidence being adduced. Proposed section 126D provides for the loss of privilege in circumstances of misconduct in the form of fraud, a criminal offence or an act which is liable to a civil penalty. If the journalist was involved in such conduct, the court may decide that the privilege is not to be made available.

According to the government, however, the clear intention of the legislation—and obviously that intention will be relevant in the construction of its terms—is to introduce a privilege which provides the court with a guided discretion to balance the competing public interests of freedom of the press and of disclosure of that information. Again, it will be up to the courts to make the decision. In some circumstances, unlawfully receiving national security information is in itself an offence. The court will have to weigh up the value in granting privilege against the value of ensuring that our national security interests are protected.

Proposed section 126E provides that the court may make various orders to protect the safety and welfare of the protected confider, short of refusing the privilege. These include media suppression orders and orders that certain information be heard in-camera—that is, in closed court. We think those measures are appropriate. Proposed section 126F provides that cases that are currently before the court will not enjoy the protection of the section, but a protected confidence which occurs before the act comes into force may be covered. Again, this is probably a sensible approach to adopt in the circumstances. The rest of the proposed bill is in essence of a consequential nature, so I will not take the House’s time to go through the intricacies of those provisions.

Labor’s view on the bill is that it is welcome but insufficient. The Australian Law Reform Commission’s report, Uniform evidence law, No. 102 of 2005, recommended protection for journalists, and appropriately so. I will take a little time to quote from the report’s recommendation. At paragraph 15.15, in respect of journalists’ sources, it says:

Since the publication of DP 69, the issue of protection of journalists’ sources has received significant media attention. Under the common law, courts have consistently refused to grant journalists a privilege or lawful excuse under which they can refuse to reveal their sources. The journalists’ code of ethics prohibits a journalist from revealing a source once a commitment to confidentiality has been made. At the time of writing, legal proceedings had commenced against two Herald Sun journalists for protecting the source of leaked government documents regarding changes to veterans entitlements. The Attorney-General of Victoria has indicated his support for a uniform national approach to journalists’ sources. The Australian Government Attorney-General has also announced that the issue would be considered by the Government.

We recognise, again, the reference in that extract of the report to the Harvey and McManus case and the fact that those journalists are complying with their professional obligation to protect their source in commenting on a legitimate matter of public interest.

At the recent national conference of the Australian Labor Party, the national platform was amended, and it represents a commitment from a future Labor government. It involves four propositions that I wish to put on the record. A future Labor government will, firstly:

Legislate for proper freedom of information laws that enable Australians to access appropriate information about government activities.

Secondly, it will:

Move to implement the ALRC recommendations on sedition laws.

Thirdly, it will:

Provide shield laws for protecting confidential sources and—

significantly—

whistle blowers.

Finally, it will:

Review laws that criminalise reporting of matters of public interest.

Again, that specifically has regard to the Harvey and McManus case.

And here we come to the heart of the matter. The Howard government is not genuinely committed to bringing about an open or transparent government. It is for this reason that it spends hundreds of thousands of dollars chasing leaks that have not detracted from good governance or national security but have in fact enhanced it. In contrast to its obsession, in many cases, with chasing down leaks is its ability to isolate and insulate itself from information that it does not want to hear. The incidence of those in the government’s history is legion, of course, from the issue of ‘children overboard’ to the more recent one with AWB.

Despite repeated evidence of the government and senior public servants having been made aware of bribes being paid to AWB, the minister claimed not to have received that knowledge. At no stage have we seen the minister attempt to find out why he was not apprised of that knowledge or take disciplinary action against any civil servant for failing to convey that information. Yet, where it is in its political interests, it uses literally millions of dollars to track down perceived leaks that it does not want disclosed. If you like, there is a complete distinction between the government chasing the outlaying of information it perceives as being contrary to its political interests and its unwillingness to track down and find out why it was not given information contrary to the interests of its political survival or indeed the political interests of individual members. This is a fundamental hypocrisy that the government needs to deal with.

Moving to the issue of the two journalists that the Australian Law Reform Commission report referred to, Gerard McManus and Michael Harvey, as I have been at pains to indicate, are two highly respected journalists from both sides of politics. This bill will not help their case—and that needs to be made known—by directly changing the substantive law that applies to their case. It is neither retrospective in that sense nor does it seek to override the Victorian Evidence Act. What it will do is send a message to the courts about the Commonwealth parliament’s clear intention in relation to journalists’ privilege—that is, to recognise its existence. In that sense, I formally declare an empathy that at least our side of parliament has with the cause of those journalists. On that basis, and on the basis that the Attorney-General will revisit this area with further legislation, Labor will support this bill, despite the fact that it is clearly less than ideal to deal with the particular circumstances faced by those journalists.

The Howard government stands condemned that it did not act until this time, and it stands further condemned for the piecemeal nature of reform that this bill represents. It is simply not good enough to blame the states. Some states and territories have whistleblower protection legislation in place; some have professional privilege in place. As Mr Ruddock well knows, there is nothing to stop a parliament legislating within its jurisdictional competence to protect the rights and freedoms of Australians with regard to transparency of government, the free flow of information or any other matter. Be clear that this government is no friend of Australia’s Right to Know and no friend of anyone who desires freedom of information or transparent government.

No other federal government has done more to clamp down on the flow of information out to the public which it considers to be detrimental to its political interests, and no other federal government has done so little to find out why it was not apprised of information of vital importance to our national interest but contrary to its political interests—whether it is the collapsing of government media departments into government ministers’ offices; whether it is in the direction of the Australian Federal Police for the purpose of conducting fruitless but intimidatory raids against the Public Service, indeed at their homes; whether it is the crackdown on whistleblowers like Allan Kessing, who exposed the massive security failures of the Howard government at our airports, despite all its talk of national security since September 11; whether it is the directive to public servants to not answer questions at Senate estimates about the channelling of $300 million to Saddam Hussein, despite the fact that the government relied on the fact that the sanctions regime was not working as a justification for its participation in the invasion of Iraq; whether it is the slack and tardy way that ministers answer questions on notice, if indeed they answer them at all; whether it is the explosion in government entitlements, staffing and blatantly political advertising in order to maximise the benefit of incumbency and the gigantic political machine behind the government; whether it is the abuse of its control in the Senate; whether it is the effective neutering of the Freedom of Information Act and its genuine application and access by Australians seeking information from government. This is a tired and arrogant response that does not stand up in its totality to detailed scrutiny.

Labor will support the bill to send a clear and unambiguous message about the parliament’s attitude with respect to the desirability of preserving and maintaining professional privilege for journalists undertaking their professional responsibilities, but we expect this area to be revisited before the election so that reform to the Evidence Act may be considered more broadly with these matters. I commend the bill to the House. I move a second reading amendment that has been circulated in my name:

That all words after “That” be omitted with a view to substituting the following words:“whilst not declining to give the bill a second reading, the House regrets that while the bill confers protection in respect of journalists, the bill fails to acknowledge the need for appropriate protection for whistleblowers and other persons who provide information to journalists”.

Michael Hatton (Blaxland, Australian Labor Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Chris Bowen (Prospect, Australian Labor Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

I second the amendment.

Patrick Secker (Barker, Liberal Party) Share this | Link to this | Hansard source

I see the amendment that has been circulated and, of course, I will not be supporting that. If any member of the opposition is going to come up with an amendment, they should actually give the detail, the words, of what they propose rather than just saying, ‘We might put in some other words.’ I think that most of us would support some defence of whistleblowing, especially when it is in the public interest, but it is very problematic to actually get the words right. To say, ‘We’re going to have an amendment on the basis that we have not gone far enough with the legislation before the House,’ I think, is just another political stunt.

In agreement with the previous speaker, the member for Barton, I think the Harvey-McManus situation has certainly prompted us to see what we can do about future situations. Of course, we hope that this Evidence Amendment (Journalists’ Privilege) Bill 2007 will give a message to the Victorian Supreme Court when it comes to that particular case. Obviously, we as members of the parliament, if we are going to act properly, do not actually interfere in judicial cases—I think that is a very important tenet of government—but I think this legislation will give a very clear feeling of what the parliament now thinks. In fact, in South Australia in the early nineties, if my memory serves me correctly, a journalist was actually jailed, and that raised considerable angst amongst many people. It probably had some influence on my views—a journalist going to jail to protect his source is probably, in the Australian vernacular, a bit over the top. As a result, I am very pleased to speak in this House today about a bill that amends the Evidence Act 1995 in the hope that that sort of situation does not occur again.

This is an amendment bill about giving consideration to the protection of interests, including freedom of the press. We are fully aware of the importance of media in our society—something which seems only likely to increase and improve in coming years. Technology is changing in such a way that consumers can access news online within minutes of any significant event; in fact, they can access it via their telephone. That is the way technology is changing. Today, witnesses to any major event can post their photos or personal accounts to add to a news story almost immediately—as I said, via their mobile phone. Some of the nation’s greatest tragedies have been covered not just by journalists but also by the general public. Media, as we have traditionally known it, is changing.

However, one thing that will not change is the trust that we have in our journalists and between journalists and MPs, for example. Because of this, their importance is not likely to dwindle in the near future. Each night, as we switch on the six o’clock news, we allow their familiar faces into our lounge room to inform us of the daily happenings and events. There is a rapport that has slowly built up over time. I think it is actually quite extraordinary that, if a poll of people out there is taken, MPs and journalists are generally fairly low in order of trustworthiness—almost down there with car salesman—but, of course, we in here know it is quite different. We know that we have to build up trust: journalists need to build up trust with us and we need to build up trust with them.

One of the things about being a member of parliament is that everything you say or do is on the public record. Even if you are just going down to the local shops, it will soon get around if you have said something or been up to some sort of mischief. So we have to be very careful in our lives. I find it extraordinary that there is this general view of people out there in Australia—and I think you would find it worldwide—that politicians are not trustworthy, whereas in fact we all know that the opposite is true.

I do seek to differ from the member for Barton on the issue of leaks and whistleblowing. I believe they are quite different. Of course every opposition loves leaks. They love leaks because they can try to embarrass the government with those leaks. Very often they are not really in the public interest and it is more about playing politics and embarrassing the government of the day, whereas whistleblowing, I think, is a much more serious area of public interest. I think, as I have said before, we must use the right word and find the difference between leaks and whistleblowing. This is problematic. I think the case the member for Barton raised is a genuine case of whistleblowing. But what we could call ‘pest leaks’ to embarrass the government are quite a different matter. They are more about embarrassing the government than genuinely about the public interest—in many cases they are almost a bit of gossip. So, before we bring in legislation on that, we have to give very careful thought to how we treat the difference between whistleblowing and leaks.

A journalist’s role in society is incredibly important. I am sure they would agree with that statement. We have many sitting right here in this chamber with us today who have become members of parliament. I acknowledge the work that journalists do to promote and advise of the business of parliament in a manner suited to our Australian citizens. We may not always agree with what they have written about us because it is given a different slant to that which we would have liked, but the fact is that they do play a very important role in reporting on the events of this parliament—which is, after all, the supreme decision maker for legislation in Australia. However, a journalist’s job is most certainly no easy task, and it has become more challenging as networks grow and the news outlets available to the general public increase in number. There is a need for journalists to access more information and present it faster and more concisely than ever before. Because of this, I believe it is incredibly important that we offer greater legal protection for confidential communications between journalists and their sources where appropriate. I am personally aware of the ethics that most journalists are taught and take it upon themselves to abide by when reporting for the press. Journalists operate under a very strict code of ethics where they are taught to keep a source’s confidence.

As parliamentarians, Mr Deputy Speaker Hatton, we know the importance of developing trust with our local media. I have about 14 newspapers, five radio stations, two television stations and some community radio stations in my electorate. There are often local newsletters as well. It is very important that we have a good rapport with the local media. Many an exchange can be made off the record with a trusted journalist; we know that is where it will stay. Sometimes it is very important that we can be very frank with a journalist who knows that we do not want our name reported because of the possible consequences. That is a normal arrangement between journalists and members of parliament, used on many occasions. We know that that information will stay with that journalist, and vice versa. However, if the journalist were called forward in a court and asked to produce evidence about a confidential source or information provided by that source—which could, at times, be damaging for members of a small community or the like—there is no legal basis for the journalist to seek to refuse.

This important amendment bill will provide a professional, confidential relationship privilege for communications between journalists and their sources. This amendment bill will also assist journalists to reconcile their ethical obligations with their legal duty to provide the courts with relevant evidence when requested. This privilege will exist at the trial and pre-trial stages of civil or criminal proceedings. As I mentioned before, if a court compels a journalist to produce evidence about a confidential source or information provided by that source, there is no legal basis for the journalist to seek to refuse except in New South Wales. This conflict can and has led to situations where journalists have been forced to choose to either protect their source or be charged with contempt of court and face imprisonment. In fact, some have gone to prison. When applying the privilege, courts will also be required to give consideration to the protection of interests including freedom of the press and the public’s right to know.

There are many other examples of confidentiality being protected by law, from discussions between a lawyer and his client in certain circumstances to discussions between a priest and his parishioner. The privilege being put forward here is modelled on the existing professional confidential relationship privilege which can be found in division 1A of part 3.10 of the New South Wales Evidence Act 1995. That has obviously been in law for 12 years, and I think it has worked quite well. It states:

confidential communication means a communication made in such circumstances that, when it was made:

(a)

the person who made it; or

(b)

the person to whom it was made;

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

This New South Wales privilege has been in place since 1998 and was recommended as a model by the Australian, New South Wales and Victorian law reform commissions in their Uniform evidence law report.

In accordance with the NSW legislation, a court must consider the nature of the proceedings, the importance of the evidence, other means of obtaining the evidence and the means available to a court to limit the impact of disclosure. The privilege will not be absolute; the court must give particular weight to any risk of prejudice to national security. My strongest concern has always been that, where national security or terrorism are involved, we have the right to find the source so that we can prevent a possible terrorist attack or risk to our national security. When deciding if a confidential communication should be disclosed, those matters will be taken into account. This will be of consideration when lives may be at risk, when serious crime is known to be committed or when information regarding a terrorist attack is concerned. In my experience journalists would accept that is a fair and reasonable demand of the people of Australia; in fact, I think they probably would ensure that that evidence and source is given to the right authorities. Certainly, in the past I think that has happened, and we would hope that it would happen in the future. It will be a judgement for journalists, but they are generally responsible citizens.

The bill also makes additional amendments to ensure that the professional confidential relationship privilege, under the Evidence Act, the NSW Evidence Act or a similar law of another state or territory, does not apply in James Hardie proceedings under the James Hardie (Investigations and Proceedings) Act 2004 or in examinations and subsequent proceedings under the Proceeds of Crimes Act 2004. The public policy interest in effective enforcement of corporate regulation through the James Hardie proceedings and the confiscation of unlawfully acquired property through the Proceeds of Crime Act justified the elimination of legal professional privilege in these circumstances—and it is not unreasonable to expect the same for journalistic privilege. The privilege will not apply if communications between a journalist and his or her source involve misconduct such as furtherance of fraud or another offence.

The protection of children is of high priority to this government. This amendment bill also amends the Family Law Act 1975. This will ensure that the best interests of the child are eminent when a court is determining whether confidential communications should be disclosed in family law proceedings where children are concerned—I think we can all understand the reasoning for that. In family law proceedings, a child’s interests in the proceedings can, in some cases, be independently represented by a lawyer appointed under division 10, part VII, of that act. For that reason, this bill provides that an independent children’s lawyer, a parent of the child or another person who has responsibility for making decisions about the major long-term issues in relation to the child can make a claim for privilege on behalf of the child. The amendment is on recommendation of the Uniform evidence law report.

Relationships with media, journalists and the public and their sources is extremely important; just ask any journalist—and just ask any member of parliament. They are taught early on to develop, maintain and work with their contacts to ensure a trustworthy and honest relationship. Contacts are integral for any journalist. I know I am a contact for many journalists—perhaps not as many as some others in this House—in my electorate of Barker and I appreciate the relationships we come to develop with these people. From the ordinary shoe store owner to the local councillor or man-about-town, all are important sources in a journalist’s contacts book. But, for journalists to have the confidence to continue to honour the importance of such relationships, they need the greater protection that is afforded by these amendments. The introduction of this bill demonstrates the Australian government’s commitment to providing greater protection of interests such as the freedom of the press and the public’s right to know.

Daryl Melham (Banks, Australian Labor Party) Share this | Link to this | Hansard source

At the outset, I will say that I rarely comment on a previous speaker’s speech but I think it is important, having followed the member for Barker, to say that there are many things that he has said that I fundamentally disagree with in relation to journalists and his romantic view of them. I do not have a romantic view of journalists. I think the journalistic profession, like every other profession, has the good, the bad, the ugly and the indifferent. But what we need to do is set some standards and principles that we all know are there and that we can all abide by. It is that necessity that brings us to the debate that we are having today.

Quite frankly, I would readily lock up a few of the journalists I know and throw the key away—the same with some of my colleagues—but that is not the way we run our businesses. What is important about the Evidence Amendment (Journalists’ Privilege) Bill 2007, whilst it is disappointing because of its narrow focus—and I will come to that later—is that it enjoys bipartisan support; that is, that the government and the alternative government have finally come to the conclusion that this is a matter that we should legislate on. We are guided in terms of that; we are not guided by political motives. We have got law reform commissions reporting under the Uniform evidence law report and that has been used as a guide.

The legislation before us today is to introduce a privilege to allow journalists facing trial to refuse to disclose the identity of their sources. It amends the Evidence Act 1995, and the bill is long overdue. The Attorney-General, Mr Ruddock, stated at a press conference in November 2005 that the government would introduce such a bill. He said that the government was of the view that:

... reform to evidence laws is necessary in order to ensure confidential sources, including journalists’ sources, are properly protected.

It has been 18 months, but we have now got the legislation. It arises from several cases and the media and legal attention surrounding them. The most quoted is the case involving Herald Sun journalists Gerard McManus and Michael Harvey. They are currently awaiting sentencing on being found guilty of contempt of court.

Their case arises from the publication of a 2005 story stating that the then Minister for Veterans’ Affairs had ignored a recommendation to increase war veterans’ benefits. It was claimed that the original recommendation was for an increase of $650 million and the minister had instead recommended an increase of only $150 million. As an aside, my recollection is that eventually more was given to veterans and the minister subsequently lost her job in a reshuffle after the subsequent election, so there was some good for veterans that came out of the leaking of this story to these journalists. McManus and Harvey refused to reveal the source of the information, and this refusal was prompted by the journalists’ code of ethics. Rule 3 requires the journalist to respect the confidentiality of his or her source of information. Contrary to popular belief, which is perhaps based on the perceptions gleaned from American television, there is no such protection under Commonwealth law. Currently in Australia, courts have an inherent power to punish people for interference in the function and procedure of the court. Courts have the power to compel people to give evidence in court where that evidence is admissible and where the person giving evidence is not protected by privilege.

The most well known examples of privilege include the relationship between legal practitioners and their clients and the privilege associated with self-incrimination. Currently, if a person—including a journalist—is not covered by privilege and refuses to answer a question when required to by the judge then that person may be held in contempt of court. The punishment is a fine or imprisonment. In May 2005 journalists from the Australian published a series of stories apparently based on a leaked customs department report. In March 2007, a former customs department official was found guilty of leaking two highly classified reports to the Australian in May 2005. This case has created a debate over the need for the public to have been made aware of specific claims relating to security at Australian airports, as opposed to the morality of an official leaking information.

Comment has been made that this legislation does not include whistleblower protection. Much of the bill before the House today is modelled on similar New South Wales legislation, so it is disappointing that it does not include whistleblower provisions. The New South Wales system established a stepped disclosure system, and legal protection can be extended to public servants if certain criteria are met. This is obviously in stark contrast to the circumstances in which the Customs whistleblower finds himself.

This case raises the broader issue of freedom of speech, which has been raised consistently since the details of the case first emerged. It has also led to the establishment of a media coalition involving a broad cross-section of media organisations. This coalition is vigorously pursuing the issue of the erosion of press freedom. The international media organisation Reporters Without Borders released rankings earlier this month which showed that Australia has dropped in the rankings for press freedom. According to an AAP report of 2 May, Australia ranks at number 35, just behind Ghana, Greece and Mauritius. Not surprisingly, the United States ranks last at equal 53rd with Botswana, Croatia and Tonga. The United Kingdom ranks at equal 27th.

The issue of freedom of speech is a powerful one which has echoed throughout history. The following comment encapsulates that spirit. I quote from page 717 of the Oxford Dictionary of Quotations revised fourth edition of 1996. The words have traditionally been attributed to Voltaire, but that is incorrect. The dictionary says that the phrase is:

Attributed to Voltaire, the words are in fact S. G. Tallentyre’s summary of his—

Voltaire’s—

attitude towards Helvetius following the burning of the latter’s De l’esprit in 1759; in The Friends of Voltaire (1907) p199. It paraphrases Voltaire’s attitudes at the time.

The comment, which is well known, is:

I disapprove of what you say, but l will defend to the death your right to say it.

These are fine words and neatly summarise the need for freedom of speech.

The bill we are debating today is based on recommendations from the Australian Law Reform Commission report No. 102, the New South Wales Law Reform Commission report No. 112 and the Victorian Law Reform Commission Report of December 2005 entitled Uniform evidence law. These are basically the one report. In respect of the recommendations made in that report, those made in relation to journalists have largely been acted on. Proposed section 126B contains the substance of the bill. It provides that a court may avoid requesting or accepting evidence if it would expose a ‘protected confidence’ or ‘protected identity information’. In deciding whether to protect the information, the court is required to weigh up the harm that would be caused by a confider against the desirability of the evidence being given. There are, however, several qualifications to this discretion. These include: how helpful and important the evidence would be to proceedings; the ‘nature and gravity’ of the offence, defence or cause of action and the subject matter of the proceeding; the availability of other evidence covering the issue; the nature and extent of the harm that could be caused to the confider; the ways in which the court could protect either the confidence itself or the identity of the confider; whether the party wanting to bring in the evidence is a defendant or prosecutor in a criminal case; and whether the evidence has already been disclosed, either by the protected confider or by someone else.

It is worthwhile to read into the record the actual text of the commissions’ recommendations, as there were two which directly affect this legislation. Recommendation 15-1 says that:

The uniform Evidence Acts should be amended to provide for a professional confidential relationship privilege. Such a privilege should be qualified and allow the court to balance the likely harm to the confider if the evidence is adduced and the desirability of the evidence being given.

Recommendation 15-2 states:

If Recommendation 15-1 is adopted, Part 3.10, Division 1A of the Evidence Act 1995 (Cth) should include that in family law proceedings concerning children, the best interests of the child should be a paramount consideration and that, where a child is the protected confider, a representative of the child may make the claim for privilege on behalf of the child.

This particular recommendation has been addressed by amending the Family Law Act 1975 to ensure that privilege can be claimed on behalf of a child.

The commissions also considered the matter of medical privilege. They did not support the inclusion of a medical relationship privilege. The report states, on page 513, that it was considered that the proper protection of confidential medical communications could occur under the confidential relationship privilege. On that basis, the commissions chose not to make a specific recommendation in relation to the matter.

In its haste to introduce this bill, the government has chosen at this stage not to legislate a number of other recommendations of the commissions. I am hoping that, eventually, some of those things will be legislated.

This is a worthwhile report. It shows the value of the commissions to this parliament. I think it is important that parliaments understand that they are not the font of all wisdom. I was a practising lawyer before I came into the parliament. I worked as a solicitor with Legal Aid for over seven years and as a Legal Aid barrister, a public defender, for over a couple. I specialised, for a decade, in defence in the area of criminal law. At the time I was practising, I was across the law. I was across what was happening on the ground. And I was in a position, when I first came into this parliament, I think, to comment on legislation coming through the parliament. But as the last 17 years have gone by, I have had to rely more on my colleagues in the profession and others I know who are current practitioners to, in effect, guide me, not in relation to some of the principles but on some of the finer details of the legislation with which we are dealing.

These law reform commissions are a great guide to this parliament. They follow and enunciate principles that have been established over centuries, unlike the Daily Telegraph or the Herald Sun or the shock jocks whom, unfortunately, our colleagues in state parliaments and even this parliament sometimes listen to and seek to respond to in a legislative way. That is not the way I like to do business. Bad cases make bad law. That is why, in relation to the matter before the parliament today, parliament has been well served by the law reform commissions’ report. And the government has come up with a proper response, and that needs to be acknowledged.

The commissions did consider other matters of uniform evidence law. I do not want to go into detail on them now, but I understand that they will be revisited under a federal Labor government and I would anticipate that they would be revisited by this government and this Attorney should they be re-elected. There is a lot of stuff there that is not necessarily contentious but would be an improvement on the status quo.

At its recent national conference, the Labor Party committed to working towards a broad range of reforms and I think it is worthwhile stating what they are: legislation for proper freedom of information laws to enable Australians to access appropriate information about government activities; moves to implement the Australian Law Reform Commission recommendations on sedition laws; providing shield laws for protecting confidential sources and whistleblowers; and reviewing laws that criminalise the reporting of matters of public interest.

Having said that, can I say that I do not necessarily believe that we should be legislating everything that the press, or the coalition in favour of press freedom, want us to legislate. I do not want my remarks to be interpreted as meaning that those organisations necessarily have my support in everything they wish for. You do, in a number of instances, have to balance certain things.

In some respects, I am quite a conservative when it comes to the press. I think there should be a few more restrictions on the press in relation to some of their reporting, in particular their reporting of court proceedings. We are getting into a situation now where papers like the Daily Telegraph are waging a war—just to increase their readership—against the courts in New South Wales. We had an instance where a particular person, who I will not name, was sentenced, and a whole swag of people provided references in relation to that person and they were traduced in the Daily Telegraph. There is action pending on that matter, as I understand it. It brings the court into disrepute.

We need to recognise that our system of justice, even in relation to journalists, is not perfect. But there are checks and balances. Our state and federal courts have appeal mechanisms so that, if people think they have been poorly treated in a court, either harshly or lightly, there are options for appeal. But the day the Daily Telegraph starts dictating to politicians what the standard should be is the day we should hang our heads in shame. Unfortunately, it carries a lot of influence. It runs particular agendas. But its interest is not necessarily the public interest. As a parliament we need to be very careful and mindful, in relation to important legislation that is currently on the statute books and may come before us on certain matters, to consider this stuff carefully and dispassionately and to be properly advised and not go to the lowest common denominator.

That is where the law reform commissions around the country provide some guidance. I am not saying that we need to accept their recommendations holus-bolus or accept everything that they recommend. That is where we bring our experience to bear. We also bring to bear considerations that others might have in relation to the matter. That is why I am quite happy to support the legislation that is before us today—notwithstanding, as I said at the beginning of my speech, that there are a number in the press gallery for whom I do not have a high regard, on account of the way they conduct themselves. They are not honourable. They do not follow the ethics of their profession. And they are pretty precious. They are quick to put the boot into us but when you challenge them privately about some of their material—I tell you what: I have never met a more precious person in my life than a journalist challenged.

That aside, in relation to journalists’ privilege with proper foundations and a proper basis for claiming it, I think this legislation is long overdue. I am happy to support it.

Petro Georgiou (Kooyong, Liberal Party) Share this | Link to this | Hansard source

It is a pleasure to follow such erudite speakers as the members for Barton, Barker and Banks. I endorse the comments of the member for Banks about the significant contribution the Australian Law Reform Commission makes to this parliament’s deliberations. I would also like to dissociate myself from his rather cruel comments about the member for Barker romanticising journalists—if you are going to romanticise anyone in such a cynical world, why not journalists!

This legislation constitutes an important reform in a proposed package of general reforms to the Evidence Act 1995. This is a large project and, to a degree, it depends on state agreement. Progress has been slow but, despite this, I welcome the government’s decision to proceed separately with this amendment and introduce this bill to protect journalists.

The Evidence Amendment (Journalists’ Privilege) Bill 2007 responds to concerns that the current legislation compromises some central components of a democratic society: freedom of expression and a free press. In August 2005, I wrote an article in the Ageof all places—in which I responded to the Harvey and McManus case. Harvey and McManus are Herald Sun journalists. The position I took then was:

In a healthy democracy, it is hard to believe that a journalist might be imprisoned for accurately reporting a story of significant public interest that poses no threat to national security.

And yet we are faced with the prospect of contempt of court and the jailing of two journalists—

for the reporting of matters of public importance.

A lot has been said about the quality of journalists. Harvey and McManus are responsible and highly respected journalists. But we also need to protect the freedom of expression of journalists who are less responsible and less highly regarded, because, to a significant degree, freedom of the press underpins our society. In the case of Harvey and McManus, their offence was their refusal to disclose sources that assisted them in reporting on cuts in benefits for war veterans. The two journalists revealed the government’s rejection of the recommendations of an independent inquiry improving a whole range of benefits for war veterans. Ultimately, the intervention of the Prime Minister and a number of coalition members saw a more generous veterans’ package emerge. Nonetheless, the issue was one of public interest, which Australians do expect their media to report on. This case highlights the fact that Australia does not provide the guarantees that are essential for the media to serve as an effective watchdog. As I said in August 2005:

No one is above the law. But if Harvey and McManus are punished for protecting their sources then the law is a bad one.

The proper place to remedy such laws is the Parliament.

So I am pleased to be able to speak in the parliament today on a proposed remedy.

The Evidence Amendment (Journalists’ Privilege) Bill 2007 is the result of recommendations made by the ALRC after the Attorney-General asked the commission to examine the operation of the Evidence Act 1995. Over 18 months, the ALRC worked closely with the New South Wales Law Reform Commission and the Victorian Law Reform Commission, both of which were conducting similar inquiries. This bill will give effect to some of the recommendations made by the law reform commissions in the Uniform evidence law report. As I said, in a healthy democracy it is hard to believe that a journalist might be imprisoned for accurately reporting a story of significant public interest that poses no risk to national security. And yet this is the very situation faced by journalists in this country. In Australia, journalists can be punished with contempt of court charges and, ultimately, jailed for upholding their ethical obligation not to disclose confidential communications made to them in their professional capacity.

It is not always a matter of taking things to an ultimate. Jail is very hard, but other sanctions can be applied, such as the recording of a conviction, which can impact on a journalist’s capacity to earn a livelihood and to execute their profession. Currently, if the court compels a journalist to reveal the identity of a confidential source, the journalist has no legal basis on which to refuse. The consequences of such a situation have been driven home to Australians over the last 15 or so years. As a result of standing by the journalists’ code of ethics to protect confidential sources in all circumstances, several Australian journalists have found themselves facing contempt of court charges. Tony Barrass, a senior journalist with the West Australian, was sentenced to a jail term and fined $10,000 for refusing to reveal a source in the Australian Taxation Office. That is one notable example, and Harvey and McManus is another. I believe it is wrong that journalists can legally be coerced to breach their ethical code and reveal their sources.

The current tensions between the ethical and legal obligations of journalists jeopardise the freedom of the press and the public’s right to be informed. This bill seeks to address this tension and introduce a new professional confidential relationship privilege. It applies to communications and records made in confidence to journalists acting in a professional capacity. Such legislation would put Australia broadly in step—I emphasise ‘broadly’—with many European countries and American states which have legislated so-called shield laws. These shield laws are designed to create public interest frameworks to protect journalists and their sources. Under common law, only communications made in a relationship between a lawyer and a client are protected from disclosure in court—and it is good to see that the legal profession is looking after itself traditionally and effectively. As a result, courts have refused journalists a justification for declining to reveal their sources. In its examination of the evidence laws, the ALRC has determined that there are a number of social relationships where a public interest could be established in maintaining confidentiality. One of these relationships is that between a journalist and their source.

The insertion of a new division 1A into part 3.10 of the Evidence Act amends the law to recognise a new professional privilege for journalists. I have to emphasise that it is limited to information given in confidence to journalists acting in their professional capacity. Again, it is important to underscore that this amendment does not give unqualified universal privilege to journalists and their sources. What it does is to set out a guided discretion allowing the courts to weigh the probative value of the evidence in the proceedings and the nature of the offence against likely harm to the protected confider in adducing the evidence. The court will also be asked to deliberate whether the public interest is best served by directing disclosure of the evidence or through the preservation of the confidence privileged to the journalist. I regard it as being implicit—and it possibly should be explicit—that the notion of it being in the public interest to protect freedom of the press and the public’s right to know is something that governments may care to incorporate in this act in future.

The court will be required to give the greatest weight to risks to national security—that is, Australia’s defence, security, international relations or law enforcement interests. Proposed subsections (1) to (4) of proposed section 126B provide the circumstances for the exclusion of evidence of protected confidences. These amendments may allow the court to direct that evidence not be adduced if doing so would reveal the identity of the confider or if that identity could be ascertained through the disclosure of information contained in the evidence. In addition, it is important to note that these amendments allow that the court may give such a direction upon the request of the confider or the confidant or, alternatively, at the court’s own discretion. The court must further direct that the evidence not be adduced if it is satisfied that harm would likely be caused to the protected confider if the evidence is adduced and where the nature of that harm outweighs the probative value of the evidence.

Proposed section 126B(4) requires the court to take into account a number of matters of importance. These include the importance of the evidence to the proceedings, the nature and gravity of the offences and the nature of the subject matter of the proceedings, the likelihood of harm that would be caused to the protected confider if their identity were to be revealed and the availability of obtaining other evidence related to the information disclosed by the protected confidence. While the court must consider the matters listed in proposed section 126B, it will not be limited to these matters. This expands the discretionary powers of the court, with the intention of providing further protection to journalists and their sources. Proposed division 1A of part 3.10 also instructs the court to state its reasons for giving or refusing to give a direction regarding the adducing of evidence. I believe that this enhances the transparency of the proceedings, and I think that this is important.

The bill does not create a true privilege. It is based on the premise that such a privilege would be inappropriate in certain circumstances which justify the loss of the professional confidential relationship privilege. For example, the bill states that confidences should not be protected where the communication was made, or the contents of a document prepared, in the furtherance of the commission of a fraud or other serious criminal offence or when an offence or the commission of an act renders a person liable to a civil penalty. If the court determines that one of these circumstances applies then the court can direct a witness to answer the relevant question. The proposed division also allows that the court may make orders to limit the extent of possible harm to be caused by the disclosure of protected information by ordering that part or all of the evidence may be heard in camera or by making suppression orders.

The Evidence Amendment (Journalists’ Privilege) Bill also makes consequential amendments to three further bills. There is a new subsection in the Family Law Act 1975 which provides for the circumstances where a child is the protected confider. This amendment provides that the best interests of the child should be a paramount consideration when the court is determining whether or not to direct that confidential information be disclosed. Also inserted into the Family Law Act is an instruction as to who may make the claim of privilege on behalf of the child.

The bill also makes changes to the James Hardie (Investigations and Proceedings) Act 2004 and the Proceeds of Crime Act 2002. These amendments provide that the privilege does not apply in situations where legal professional privilege has already been abrogated.

The disclosure of sources is sometimes uncomfortable for all of us—governments and oppositions alike—but the protection of sources is fundamental to the media’s ability to freely inform the public on matters of public interest. The fourth estate, dare I say it, is not perfect, but the discomfort it not infrequently causes politicians has the critical role of holding governments and oppositions accountable through the free availability of information provided to the public and through open debate. The protection of confidential information revealed to a journalist acting in their professional capacity is fundamental to this. Without such protection, the public’s right to know is compromised and the essential flow of information is disrupted. The fact is that, if there is no protection, people may be deterred from sharing significant information with journalists and hence the public at large.

I stand before the House today holding the same firm belief that I recorded in print two years ago—that is, it is bad law which allows for journalists to be intimidated and even compelled to breach their ethical code where it is actually in the public interest that the confidentiality agreement between journalists and their confiders be preserved. This bill goes some way towards protecting this, especially in cases which have no bearing on national security or any other vital overriding public interest. It does not go as far as some would like. The bill will only protect journalists in federal proceedings. It does not provide a non-discretionary shield for journalists, which is defined by statute. It leaves it to the discretion of judges, but I have more respect for the discretion of judges than that of a number of other people. But the bottom line is that it takes us another step in the right direction towards protecting the freedom of the press in Australia. I commend the bill to the House.

Kelvin Thomson (Wills, Australian Labor Party) Share this | Link to this | Hansard source

I am generally supportive of the Evidence Amendment (Journalists’ Privilege) Bill 2007, which provides a measure of professional privilege to journalists who refuse to name their sources. The bill is modelled on similar provisions in the New South Wales Evidence Act 1995. The key difference is that the New South Wales legislation offers a general protection, whereas the current bill offers protection only to journalists. The structure of the protection allows a judge discretion to refuse to adduce evidence if they believe that the harm the evidence would cause to the source outweighs a range of other considerations, such as the probative value of the evidence. In effect, it would offer the court a discretion as to whether to exclude the evidence and would also allow the court to make a range of ancillary orders to protect the identity of the person. In my view, this appears on the face of it to be a sensible test. It weighs the competing interests of the court to hear evidence from all relevant parties against the right of journalists to keep the confidence of informers. This on its own does not go far enough.

Indeed, Labor has proposed a series of reforms in this area. At its recent national conference, Labor’s national platform was amended to include the following: (1) we would legislate for proper freedom of information laws that enable Australians to access appropriate information about government activities; (2) we would move to implement the Australian Law Reform Commission recommendations on sedition laws; (3) we would provide shield laws for protecting confidential sources and whistleblowers; and (4) we would review those laws that criminalise reporting of matters of public interest. Without such a full range of reforms, it is clear that the Howard government is not committed to bringing about an open or transparent government. This is a government which is secretive and which has taken every opportunity to shield itself from public scrutiny. We need a fuller set of reforms to ensure open government. In many ways, this bill encapsulates the things that are wrong with this government and how flawed it is. It is essentially too little, too late.

If you look at the nature of the proposed legislation, you will see it is very restricted in its scope in that it relates only to journalists. There is no protection for whistleblowers or what are now known as public interest disclosures. The government has been dragged kicking and screaming to do something, despite the fact that there have, in effect, been similar and indeed better laws for many years in other jurisdictions. The legislation has only appeared after enormous media pressure stemming from a particular case, and the government seeks to solve a particularly embarrassing problem rather than operating from first principles.

While I am happy to support this bill, it introduces the minimum reform which the government could possibly introduce and still call it reform. In a nutshell, that encapsulates the nature and character of this administration. In areas where the government is not sincere or fair dinkum, such as global warming, the government’s modus operandi is: do as little as is absolutely necessary, do it at the last minute, only act under extreme duress or pressure or where there is a problem in the polls. Time and again we see this approach from a government which has run out of puff, run out of thinking, run out of genuine concern about the future and run out of the ability to engage in substantive, quality policy reform. If you look at the record of recent months, we saw last-minute water reform, the Murray-Darling $10 billion scheme—

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

Order! The member for Wills will come back to the bill.

Kelvin Thomson (Wills, Australian Labor Party) Share this | Link to this | Hansard source

Mr Deputy Speaker, I am happy to do so. The government has essentially succumbed to hubris and arrogance with respect to this legislation. The government fervently hopes that, in passing this most minimal of changes in this area, the public will forget the way in which it has treated issues of access to information and the protection of sources. It demonstrates a contempt for the democratic system and the democratic process—that is, all of us who believe in an independent and professional media as an integral component of a healthy democracy. By addressing the smaller issues and ignoring the bigger issues, the government is acting at the last minute and, in the face of pressure concerning two journalists, doing a little bit of market repair work.

This bill is a last-minute attempt to ameliorate the rising tide of media criticism of this government for its failure to provide adequate protection to Michael Harvey and Gerard McManus, who were just doing their job. What did they do? They simply revealed that the government had failed to deliver $500 million in extra pensions promised to veterans and war widows. When the journalists refused to reveal their sources, they ended up being charged with contempt. That charge has hung over their heads as a form of intimidation and blackmail not just for those individual journalists but by way of example to the profession as a whole. This case has essentially been used to hang the threat of contempt over other journalists and would-be whistleblowers who might seek to embarrass the government by revealing the truth in the name of the public interest. My fear and belief is that the government has enjoyed the situation of the last couple of years, where journalists have felt intimidated and threatened. The privilege of office does not simply mean a licence to use government coffers and bureaucracy as another marketing mechanism for the government. It is a requirement that we genuinely respect independent sources of thought and expression and that we genuinely treat information as being beneficial in the development of public policy.

It is a matter of concern to me that Australia continues to drop in the international rankings for press freedom. Just last year we saw independent groups such as Freedom House and Reporters Sans Frontieres dropping our ranking for press freedom. We are now in the position of being behind countries such as Namibia. In the modern era the currency of democracy is information, but regrettably the government has an empty wallet to show the public. If you look at the gutting of freedom of information, if you look at the abuse of conclusive certificates to quash legitimate freedom of information requests, these are stark reminders to us all of habitual abuse of office.

The nature of the modern media is that we are increasingly living in an era that could be dubbed ‘rip and read’ journalism. The media is a massive machine that chews through information. In feeding this process, it is all too easy for time-starved and pressured journalists to simply take the convenient path of reporting the latest turn in the scandal of the day or taking what claims are made at face value and simply running claim and counterclaim without any checking. The time allowed for genuine investigation, analysis and digging is dwindling in an age when the public seek entertainment as much as information. We are also well aware of the shortening time frame of the news cycle.

In emasculating freedom of information, the government has removed a vital potential source of media inquiry. This tends to make the media more beholden to other sources of information and it enables the government to engage in what in footy parlance we would call a process of ‘flooding’—where they can drop stories and bombard media outlets with a coordinated campaign of announcements, particularly if there is something embarrassing or awkward to get off the front pages. In cutting off avenues such as freedom of information, the government seeks to snow the media and, in consequence, the public.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Wills is again straying from the bill. The bill is about evidence amendment privilege and the amendment talks about whistleblowers and information to journalists. He will stick to the bill.

Kelvin Thomson (Wills, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Mr Deputy Speaker. The importance of freedom of information is that, without it and without documents being made public, we end up in a situation where people do blow the whistle because they think the public is entitled to be aware of what is actually happening. If you do not have an adequate freedom of information regime, you get the issue of public interest disclosures.

I believe that the media is an important check and balance to the misuse of power. I believe that information plays an essential role in ensuring that we produce good public policy. Rather like the scientific community, which engages in peer review as its modus operandi, the media has a vital role in covering public policy issues adequately so that policies are exposed to scrutiny. Through this kind of process, better policies ultimately win out.

While the bill should be supported, it represents an inadequate first step. If we look at what is ignored, there is no commitment to protecting what are referred to as whistleblowers, so in any case where someone may have revealed confidential information they can be prosecuted and that may still well include any journalists who report the story.

There is indeed a contrast here between the case of Michael Harvey and Gerard McManus on the one hand and Mr Allan Kessing on the other: the whistleblower gets no protection under Commonwealth law even with this change, whereas under New South Wales law there is a ‘stepped disclosure’ regime where legal protection is extended to disclosures by public servants, provided they meet certain conditions. Nor do we have a commitment to genuine freedom of information.

Our democracy will ultimately require major reforms in this arena, not merely for the sake of protecting journalists or, indeed, whistleblowers, for that matter; rather, it is a major task to build public confidence in our public and civic institutions. Critical in this rebuilding of trust will be creating a culture of accountability which, in turn, rests on creating a culture that is pro disclosure and the opening up of information sources.

This legislation has been the subject of considerable public criticism on the basis that it is inadequate. For example, Fairfax Media spokesman Bruce Wolpe said that, unless the federal shield law was accompanied by whistleblower protection and state shield laws, the new scheme would be missing ‘an essential part of the package’. The New South Wales Attorney-General, John Hatzistergos, has noted that federal shield law would be ‘inadequate and half-baked’ unless it was accompanied by protection for whistleblowers along the lines of the protected disclosure laws in New South Wales. We have also heard Alexander Brown, head of a national project to reform whistleblower laws at Griffith University, stating that journalists would still be dragged into prosecutions unless the government introduced whistleblower protection laws.

As I have mentioned, the New South Wales system establishes a ‘stepped disclosure’ regime in which legal protection is extended to disclosures by public servants if they meet certain conditions. This is in stark contrast to the threat facing federal public servants such as Mr Kessing if they make unauthorised disclosures, even if those disclosures are in the public interest. In the case of Allan Kessing, there were disclosures that came from the area of Customs about airport security, and it was reported in the Age that, a week after these disclosures became public, the federal government appointed the British aviation security expert Sir John Wheeler to examine Australia’s airport security.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Wills is a serial offender. He is off the bill again. If he does it once more I will sit him down.

Kelvin Thomson (Wills, Australian Labor Party) Share this | Link to this | Hansard source

Mr Deputy Speaker, I have to draw to your attention the fact that I am referring to the case of a whistleblower and therefore absolutely speaking to the amendment.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

You were well off the whistleblower; you were starting to talk about airport security.

Kelvin Thomson (Wills, Australian Labor Party) Share this | Link to this | Hansard source

About the disclosures which were made related to airport security. The government accepted recommendations concerning them. At the same time, however, the Australian Federal Police sought to track down the person who had leaked the reports that had so embarrassed the government. The man ultimately blamed for the leak was Mr Kessing. In March of this year he was found guilty, by a Sydney District Court jury, of leaking one classified Customs report, in breach of the Commonwealth Crimes Act. In fact, he has no public interest defence available to him. The secretary of the Media, Entertainment, and Arts Alliance said in relation to these matters:

I think there has been a very serious deterioration in the state of freedom of speech in Australia over the past five years …

The media coalition titled Australia’s Right to Know notes that Australia now lags in the worldwide press freedom rankings compiled by international media organisation Reporters Without Borders. That latest index shows that Australia has slipped two places to 35, behind nations such as Bolivia, which is 16th, South Korea, which is 31st, and Ghana, which is 34th. This slip is reported as having come after a horror few years for advocates of press freedom in Australia. Indeed, the Leader of the Opposition has indicated his support for the media in relation to press freedom issues, saying there is an emerging abuse of conclusive certificates by the federal government and that, when it comes to whistleblowers protection legislation, this also needs to be reviewed in the light of recent cases. Of course, he is referring to the cases of Michael Harvey and Gerard McManus and also the case of former Customs officer Allan Kessing.

It is clear that this legislation is inadequate. We need more in the way of protection for journalists and their sources and we need more in the way of protection for whistleblowers. The present regime will not be adequate to protect whistleblowers. It is part of a series of failures on the part of this government, if we are talking about freedom of information, privacy protection and the like. Where information is the currency of democracy we need to do better and we can do better. I believe that the legislation can be supported as a small step forward but it is regrettable that this government, acting under duress, is doing too little too late.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

Today we are debating further protection for journalists and their sources. It has come about, as you have heard from the member for Wills, because of a particular case. The Attorney-General in his second reading speech in the House stated very clearly that it has come from one case. But we as a community, as joint heirs of this nation, look towards our environment and passing onto the future a better world. These freedoms that we are talking about today, including freedom of speech and the public interest, are encompassed by the bill. We need to be as a nation ever vigilant and ever concerned. The fourth estate, the press, has not always made my life comfortable as the representative of an electorate. However, the protection of freedom of the press is a pillar of Australian society that underpins and protects the freedom of the people of this great nation, the Great South Land.

I rise today in support of the Evidence Amendment (Journalists’ Privilege) Bill 2007. The bill demonstrates the government’s commitment to provide professional confidential relationship privilege at the trial and pre-trial stages of proceedings for communications between journalists and their sources. This privilege will assist journalists to reconcile their ethical obligations with their legal duty to provide courts with relevant evidence when requested. In applying the privilege, courts will be required to give consideration of the protection of interests including freedom of the press and the public’s right or need to know. As stated in the Attorney-General’s second reading speech:

This bill implements an important reform to the Commonwealth Evidence Act 1995 by introducing a privilege that will protect confidential communications between journalists and their sources.

The Attorney-General went on to say:

There has been significant recent commentary about the need to ensure and maintain freedom of the press. Currently, except in New South Wales, if a court compels a journalist to produce evidence about a confidential source or information provided by that source, there is no legal basis for the journalist to seek to refuse. Yet, journalists also operate under a strict code of ethics which stipulates a clear obligation to keep a source’s confidence.

This conflict between the legal reality and ethical obligation can lead—and indeed has led—to situations where journalists have been forced to choose between protecting their sources or being charged with contempt of court and facing imprisonment.

This bill seeks to achieve a balance by introducing a privilege—at the trial and pre-trial stages of civil and criminal proceedings—for communications made in confidence to journalists.

Also in that speech, the Attorney said:

The proposed privilege is based on recommendations made by the Australian, New South Wales and Victorian law reform commissions in their Uniform Evidence Law report tabled in this place on 8 February 2006. The report proposed a privilege based on New South Wales provisions that have been operating since 1998.

He went on to say:

In the interests of achieving a national, uniform approach to this issue the Australian government has accepted the recommended model.

Further, the Attorney said:

The new privilege will not be absolute. The proposed provisions set out a guided discretion for the court to exclude evidence which would disclose confidential communications made to a journalist who is under an ethical obligation not to disclose that information. The protected information can be information provided to the journalist, information about the source’s identity, or information that would make it possible for that identity to be discovered.

There were five points the Attorney made:

In deciding whether to exclude the evidence, a court will take into account:

• the nature of the proceedings
• the importance of the evidence
• the likely harm to the journalist’s source
• other means to obtaining the evidence, and
• the means available to limit the impact of disclosure.

It needs to be written into this speech.

Further, the privilege will not apply if the communications between the journalist and his or her source involve misconduct such as—

David Hawker (Speaker) Share this | Link to this | Hansard source

Order! It being 2.30 pm, the debate is interrupted in accordance with the resolution agreed to previously. The debate may be resumed at a later hour and the member will have leave to continue speaking when the debate is resumed.