Scott Ludlam (WA, Australian Greens) Share this | Hansard source

I thank Senator Brandis for that clarification. I cannot do too much more than commend these amendments before I move them. Effectively I suppose I will just have to respectfully disagree and say that we are not seeking to do exactly as Senator Brandis has stated. It is important here to remember exactly what this bill intends to do. It intends to allow the courts, when these kinds of cases come before them—as they do quite regularly in my home state of Western Australia—to consider the public interest in deciding on disclosure of a source or not. The balance I think we have been able to strike here is to say that the plain English definition of ‘journalist’ is still here in the bill—and if somebody is going to be receiving confidence from a source, and that source would expect that kind of protection, I do not think we want the doors of the court to be closed based on those kinds of criteria. We are trying to leave those judgments to the court—is it in the public interest that this particular source, this particular confidence, be disclosed or not?

The bill as drafted at the moment would have the effect of potentially either closing the doors of the court or tying courts up in sequences of arguments about to whom the protection should apply. In my view, and in the view of the folk we have taken advice from in the course of drafting these amendments, that is the wrong kind of argument. We do not want to be tying the courts up in long debates about whether the door should be open or not; whether you are a journalist or not. The argument that we want heard in the courts is: should this protected confidence be protected or not? Is it in the public interest that this be disclosed or not?

That is why I am pressing the point, Senator Brandis. I am not sure that we are quite as much at cross-purposes as you have indicated in the remarks you have put this morning. We are not seeking to have vexatious confidences or other material protected that it is not in the public interest to protect; we are simply seeking to have the court’s doors open so that those kinds of arguments can be heard in the small number of cases where a source has given some kind of confidence to somebody for publication in a news medium and expected that their identity would be protected. We potentially would have people who have the expectation of protection—and people who may feel as though they have the ability to offer that protection—and then, when push comes to shove and it comes before the courts, find those doors are closed. And then we never get to hear the argument as to whether or not it is in the public interest that the source be protected.

If Senator Brandis wishes to speak again, I will yield and then move the amendment in a moment.