George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

Thank you, Senator Ludlam. I would like to respond to that. The point I make to you and other senators, through the chair, is this: do you want this legislation to be about the protection of journalists’ sources or do you want this legislation to be about the protection of any confidence which might subsequently be published in some medium by a person, whether a journalist or not, on the basis that it is claimed to be news? A law which presumptively protects anything said to anyone in confidence which might subsequently be published by the recipient of the information on the basis that it is news throws a cloak of privilege over a vastly wider range of information and a vastly greater number of persons than a law which merely protects journalists’ privilege.

Let me make two points about the courts, if I may, Senator Ludlam. First of all, remember that this is about withdrawing information from a court. The basic proposition on which courts of justice work is that all of the relevant evidence should be placed before them so that they can arrive at an adjudication of a dispute, whether a criminal prosecution or a civil dispute, fully informed of every relevant fact. That is integral to our notions of justice. Nevertheless, in certain circumstances we withdraw information from courts because there are other values served which are regarded as being more important in the scheme of things than the principle that courts should have access to all relevant information. For example, we respect the privilege against self-incrimination. For example, we respect lawyer-client privilege, so that what a person says to his lawyer cannot be used against him in court, even though it might be that if the court knew what the person had said to his lawyer that would relevantly influence the court’s deliberations on the particular case. There are other values that qualify the general principle that the court should have before it all relevant information so as to resolve a dispute justly.

What this bill does is create a new category, only by a rebuttable presumption of course, of information which may be withdrawn from the court—that is, the identity of a journalist’s source—so that if the bill in its original form were to be passed, and the presumption were not to be rebutted, there would be something which under the law today the court can insist on knowing about (namely, the identity of the source) which it would not know about. And certain consequences follow from that—for example, the capacity fully to test evidence in cross-examination knowing who the source is.

We the opposition agree—and here we agree with you and with the government, although the government are the latest to the party here—that in certain limited circumstances there is a case to be made for the protection of a journalist’s source which acts as a qualification on the general principle I have recited that courts should have access to all relevant information. You expand that as widely as this amendment would and what you are saying—subject of course to there being a rebuttable presumption rather than an ironclad rule—is that the range of information which may be withheld from the court is vastly greater. The range of information that can be withheld from a court is anything which is given to someone in confidence which might by the recipient of that piece of information subsequently be published, on the footing that it is said to be news. So you are, to that extent, inhibiting far beyond the extent to which it is necessary to do so the capacity of a court to be fully informed of every relevant material or material fact.

Senator Ludlam, I say to you with great respect, when you are proposing to amend the law to create circumstances in which otherwise relevant or material information may be withdrawn from the eyes of the court, the way to approach it is to do so as conservatively and narrowly as possible so as to serve the countervailing public policy objective, not to do so in an expansive way which impinges too much on the general rule that courts should be able to resolve disputes fully informed of every relevant fact. That is the first point.

The second point is this. You say do not close the door of the court to this. For the reasons as I have just explained, it is your amendment that would close the door of the court, but it does not completely close the door of the court because this legislation acts on the basis of rebuttal presumptions. What you would then be doing, though, by expanding very significantly the category of information caught by the legislation, is to engage the court in a much more prolix and complicated inquiry, an inquiry which would give rise to a multiplicity of additional issues of fact as to whether or not this particular sort of information should be protected, and therefore you will prolong proceedings vastly. So for that reason as well, it seems to me, if I may say so with respect—I understand your intention and there is no doubt about the good faith with which the intention is expressed—you pass this amendment and it will, in fact, defeat the objective you have recited. In particular, consider this Senator Ludlam. Consider the injustice of a person being convicted by a court not fully possessed of every relevant or material fact. Consider the injustice of a person having a civil dispute resolved against their interests by a court not possessed of every relevant or material fact. If you approach it that way, which is the way I approach it, then you would say, where there is a powerful reason to qualify that rule, qualify it as little as possible, which is what the opposition’s proposal would do, but that is an objective which your amendment, perhaps unintentionally, would thwart.