Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I rise to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2007. This bill represents a quick fix for the Howard government. 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 this bill is being pursued by the government at this time. The first reason is that it is an attempt to pacify the recently formed coalition of media interests under the banner of the Australia’s Right to Know campaign. The second reason is to take the heat out of the Harvey and McManus case in time for the upcoming election. I will make a few remarks on these reasons in my concluding remarks this evening, but, firstly, I will take the Senate through the detail of the bill.

The bill is modelled on division 1A of the New South Wales Evidence Act 1995, but it differs in that, whereas the New South Wales act proposes a general scheme of protected confidence, this bill, as its title suggests, is more limited in its application. The division title of the proposed new 1A in the bill is the same as that in the New South Wales Evidence Act—that is, professional confidential relationship privilege. However, when this definition of protected confidence in the proposed section 126A is compared with the New South Wales act, we see that it is vastly different. In the bill before us, the definition is exclusive to journalists; whereas, in the New South Wales act, the definition relates exclusively to conduct. While the New South Wales example would allow other professions to access privilege, the definition in this bill sets up a system of protected confidentiality whereby only journalists, otherwise called ‘confidants’ in the proposed division, may be entitled to a form of qualified privilege if they are communicating in confidence while (a) acting in a professional capacity and (b) acting under an express or implied obligation not to disclose the contents of the communication.

Proposed section 126B provides the means by which courts may exclude evidence derived of a protected confidence. Subsection (1) provides that the evidence may not be adduced where it would disclose the protected confidence, the contents of a protected confidence or protected identity information. Subsection (2) provides that this exclusion may occur via application of a party to the proceedings or via the presiding officer’s own initiative. Subsection (3) removes the application of judicial discretion and directs that the evidence must be excluded where harm would occur to a protected confider—in that instance, it would be journalist—and where the nature and extent of the harm outweighs the value of the evidence to be adduced. Subsection (4) provides a non-exhaustive list of factors the court must take into account in weighing the potential harm to the journalist against the potential value of the evidence, but also directs that a presiding officer must give greatest weight to any risk of prejudice to national security. Subsection (5) of the bill provides that whatever its decision on whether to adduce the evidence, the court must state reasons for its decision.

It is interesting to note that the key diversion from the New South Wales template is the removal of discretion in consideration of national security information. In the bill before us this evening, section 126B(4), which I have just gone to, sets out the factors which must be taken into account by the court when deciding whether or not to exclude the evidence. It states that the courts must take into account and give the greatest weight to any risk of prejudice to national security. The criteria does not appear in the corresponding list in the New South Wales act. This may be a reflection of the differing responsibilities of our respective levels of government.

So we see that the application of the qualified privilege comes down, to a 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 merely by claiming it. Of course, absolute privilege simply does not exist for lawyers, 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 anxious about; it is to be desired. The parliament is best placed to provide a framework as, in constructing rules, we cannot foresee all things and all circumstances, and that is why these matters are best weighed in each instance on the facts of the case itself.

Proposed section 126C provides for a loss of qualified 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 misconduct, the court may decide that the privilege was not available. According to the government, however, the clear intention of this legislation is to introduce a privilege which provides the court with a guided discretion to balance the competing public interests of the freedom of the press with the public interest 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 the value of granting qualified privilege with the value of ensuring our national security.

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.

Proposed section 126F provides that the cases that are currently before the court will not enjoy the protection of this section, but a protected confidence which occurs before the act comes into force may be covered. This is a sensible approach.

The rest of the proposed bill, in essence, is of a minor technical or consequential nature, so I will not dwell on it here this evening—although I may have more time than I had considered, so I will go to some of the comment about it. Labor’s view on the bill is that it is welcome but insufficient. The Australian Law Reform Commission 2005 review of the uniform evidence law report, report No. 102, did recommend protection for journalists. It is worthwhile taking the Senate to it this evening. It said:

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.

At the recent national conference, the national platform of the Australian Labor Party was amended to include the following: Labor will legislate for proper freedom of information laws that enable Australians to access appropriate information about government activities, move to implement the ALRC recommendations on sedition laws, provide shield laws for protecting confidential sources and whistleblowers, and review laws that criminalise reporting of matters of public interest.

This is where 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. The two journalists that the ALRC report referred to are Gerard McManus and Michael Harvey. The bill will not help their case by directly changing the substantive law that applies. Neither is it retrospective in that sense nor does it seek to override the Victorian Evidence Act. What it might do is send a message to the courts of the Commonwealth parliament’s clear intention in relation to journalists’ privilege—that is, to recognise its existence. On that basis the Attorney-General, is seems, has given an assurance in revisiting this area with further legislation.

As it said at the outset, Labor supports this bill despite the fact that it is clearly less than ideal. The Howard government stands condemned that it did not act earlier; 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, especially with regard to transparency of government, the free flow of information or other related matters.

Be clear: 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, whether it be collapsing of government media units into the minister’s office; the direction of the AFP for the purpose of conducting fruitless but intimidatory raids against public servants; the crackdown on whistleblowers like Alan Kessing, who exposed the massive security failures of the Howard government at airports, despite all its talk of national security since September 11; the directives to public servants at Senate estimates not to answer questions about the channelling of $300 million to Saddam Hussein; the slack and tardy way that ministers like Mr Joe Hockey answer questions on notice that have been put on the record, if, indeed, he answers them at all; the explosion in government entitlements, staffing and blatant political advertising in order to maximise the benefits of incumbency and the gigantic Liberal Party spin machine; the abuse of its control in the Senate; or the effective neutering of freedom of information legislation. This is a tired and arrogant government that does not enjoy scrutiny at all.

As I have said, Labor will support this bill to send a clear and unambiguous message of the parliament’s will. But we expect this area to be revisited before the election so that reform to the Evidence Act may be considered more broadly. With those remarks, I commend the bill to the Senate.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

A free press is fundamental to a free society. When cities first began, democracy relied on the debate and argument that occurred in the Greek marketplace, where information was shared, ideas were aired and discussed. Now the marketplace of ideas is much bigger, and a free media is fundamental to our modern conceptions of democracy. Indeed, Thomas Carlyle argued that what he called the Fourth Estate can be conceived as democracy itself because it allows the people to debate and discuss the affairs of state. For a long time a free press has been an essential part of Australia’s democracy.

In 1824, in my state of New South Wales, the first Australian born politician, William Charles Wentworth, founded one of Australia’s first independent newspapers, the Australian. The birth of a free press was a breath of fresh air to the colonies, which had been weighed down by almost 40 years of government control and censorship. While there is much to criticise about today’s media, not least the monopoly of its ownership, the Greens believe the newspapers, now joined by the internet, television and radio, still form the backbone of our democratic processes. That is why we share the concerns of most of the Australian media outlets and much of the Australian public about the direction of media and public freedom in this country. Ten years of the Howard government have put a clamp on free speech and the public’s right to know about the workings of government. Policy has been replaced by spin, substance by rhetoric, and the cold hand of censorship is on the march again. Sydney journalist David Marr describes it this way:

John Howard has the loudest voice in Australia. He has cowed his critics, muffled the press, intimidated the ABC, gagged scientists, silenced NGOs, censored the arts, prosecuted leaders, criminalised protest and curtailed parliamentary scrutiny.

Australia’s Right to Know, a coalition of Australia’s major media outlets, say:

Australia risks undermining one of its main pillars of democracy if erosions to free speech continue.

They say this is a bipartisan problem of ‘national importance regardless of who is in power’ and that the problem is longstanding, with both ‘Labor and the coalition governments at state and federal levels presiding over a serious deterioration in the freedoms we take for granted’. They describe it this way:

There has been an alarming slide into censorship and secrecy that has severely reduced what ordinary Australians are allowed to know about how they are governed and how justice is dispensed.

They say there are more than 500 separate prohibitions governing the things that Australians are not allowed to know. These laws and restrictions vary from state to state, making it hard for the media to report.

The government would like to claim that the Evidence Amendment (Journalists’ Privilege) Bill 2007 bucks this trend. They claim that the bill seeks to protect journalists and their sources. In fact it does nothing of the sort; rather this bill is further window-dressing of the government’s attack on free speech in this country. This bill does the bare minimum that could be done to protect journalists’ sources. It does not afford any protection to whistleblowers. It does not afford any protection to other professionals and their sources. It does not recognise the public interest in ensuring journalists’ sources are kept confidential and, once again, it drops the veil of national security over the whole bill, making it the overriding factor in any decision about whether or not a source can be protected.

I will say more on the problem of national security later, but first I want to talk about the inadequate scope of the bill. The bill is based on division 1A of the New South Wales Evidence Act 1995. However, there is a significant difference. This bill only applies to journalists, while the New South Wales bill allows a range of other professionals—doctors and counsellors, for example, and their informants or their clients—to claim protection. This bill explicitly limits protection to journalists and their sources. It is a major flaw in the bill.

There are a range of professionals that should be able to claim these types of protection: medical and health professionals, counsellors and religious advisors. There is no reason why a court could not weigh the balance of the harm caused by revealing a source for these professions against the importance of the evidence or information in the particular proceedings—just as they could in relation to a journalist. But it seems that, because the government wants to deal with a political problem of journalists being prosecuted for contempt, rather than dealing with the policy question it has opted for this narrowly framed bill. In fact, so narrow is the scope of the bill—combined with the limitations and qualifications contained in the bill—that it seems almost certain that journalists, such as Gerard McManus and Michael Harvey, and their sources, would still be prosecuted if this bill were to become law.

Proposed section 126D of the bill provides that when a communication between the source and the journalist involves fraud or an offence, the privilege or protection cannot apply. As a result, public servants, who in most cases would be committing an offence if they carried out an unauthorised disclosure to the media, would not be shielded by these laws, and nor would the journalists involved. In other words, whistleblowers remain out in the cold. Given this incredible inadequacy of the bill one could say, as the Media, Entertainment and Arts Alliance says, that this bill ‘will amount to nothing more than rhetoric without accompanying protected disclosure laws to prevent whistleblowers from being hunted down and prosecuted’.

Now more than ever there is a profound need for whistleblower protection in this country. Whistleblowers are, and have been, an essential bulwark in the rise of executive power at the expense of democracy, not just in Australia but around the world. Let us recall this important role. Without whistleblowers, the Watergate scandal would never have become public, and Nixon would not have had to resign. Without anonymous sources we would never have learnt about the torture at Abu Ghraib prison in Iraq. Yet once again the government has dumped the opportunity that this bill could have provided to protect whistleblowers. The Australian Press Council’s Charter for a free press in Australia states:

Freedom of opinion and expression is an inalienable right of a free people.

That right is recognised in article 19 of the United Nations Declaration of Human Rights. The Press Council’s charter has six principles, and the sixth principle states:

Laws, regulations and practices which in any way restrict or inhibit the right of the press freely to gather and distribute news, views and information are unacceptable unless it can be shown that the public interest is better served by such laws, regulations or practices than the public interest in the people’s right to know.

It is the public interest that should be at the heart of any laws to protect journalists’ sources, and it is the public interest that is missing from this bill.

A court that is examining whether or not a journalist’s source should be protected should be able to assess not only the public interest of the particular case but the wider public interest of a free press that is in part built on the public’s confidence that information provided should remain confidential. That is why the Greens will move an amendment to this legislation to include consideration of the public interest as a factor in a judge’s deliberation on protecting a journalist’s source. The amendment will add an additional item to the proposed section 126B of the Evidence Act that lists the matters a court should consider. The Greens amendments ensure that, in addition to the matters already listed, the court will now also be required to consider ‘the public interest in maintaining the protected confidence of journalists’ sources’. I urge senators to support this amendment.

Irene Khan, Secretary General of Amnesty International, says in this year’s Amnesty report on the state of the world’s human rights that ‘national security has often been used as an excuse by governments to suppress dissent’ and that ‘in recent years heightened fears about terrorism and insecurity have reinforced repression’. The report shows how, around the world, national security has become a catch-all used and abused by governments seeking to justify suppression of political and civil rights, the removal of civil liberties and the abuse of human rights. In this country national security has underpinned the suppression of the truth about David Hicks and Mamdouh Habib and attacks on the rights of refugees. It has been the platform on which a raft of new terrorism laws has been introduced. The Greens have always supported sensible measures like increases to airport security, but the government has gone overboard with laws like new sedition offences, control orders and banning organisations.

One of the worst aspects of the new terrorism laws is the use of national security to suppress government information and create closed trials. The National Security Information (Civil and Criminal Proceedings) Act 2004 allows the Attorney-General to suppress evidence in proceedings, based on a very broad definition of national security. This new bill includes a clause, which is not included in similar state legislation, which will require a judge to use the same definition of national security as in the terrorism laws, when assessing whether to protect a journalist’s sources. This clause goes to the heart of the failure of this bill because it clearly would not protect whistleblowers such as those who are in fact acting in the public interest by revealing major flaws in Australia’s airport security. Worst of all, it requires a judge to give the ‘greatest weight’ to national security when deciding whether the protection should be maintained. The Greens will move an amendment to remove this bias in the bill towards national security. We accept that national security is a factor that a judge should consider in assessing the necessity of protecting journalists’ sources, but it should not be the overriding factor, and I urge senators to support this amendment.

This bill is extremely flawed. It has been rushed in as a political fix for the very public criticisms levelled by media outlets and concern amongst journalists about the prosecution of their colleagues. There are other models that could have been looked at, like that in New South Wales, in its entirety, and the New Zealand model, which offers much more robust protection, with protection of a source the default position from which a case has to be argued to vary. It should have been part of a package of reform that also protected whistleblowers. The fact that the government has refused to allow a Senate inquiry into this bill has prevented the parliament from being able to examine these other options. The government has again wasted an opportunity to improve the framework for public debate and free discussion in Australian society. Once again, while paying lip-service to freedom, it has done the opposite, relying on spin rather than substance. And, once again, freedom of the press has taken a back seat to the government’s political ambitions.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

I rise to speak on behalf of the Australian Democrats to the Evidence Amendment (Journalists’ Privilege) Bill 2007. As we have heard, this bill seeks to amend the Commonwealth Evidence Act 1995 and various other acts so that journalists’ sources are given some protection from discovery in federal legal proceedings, either in court or in out-of-court matters. This is a qualified privilege. The court has discretion to grant the privilege based on a number of matters. The court must consider freedom of press—association—and the public’s right to know. The law is said to be based on a New South Wales model, albeit with one modification: the court must give greatest weight to the risk of prejudice to national security. Privilege can also be obtained on behalf of a child. It will not apply to situations where legal professional privilege already applies or where there is misconduct between the journalist and his or her source, nor will it apply to matters related to James Hardie or the Proceeds of Crime Act.

As we are all too familiar with, the true reason behind this legislation—which the Democrats consider has aspects which are somewhat ill-considered, shall we say—is the enormous media pressure stemming from the case of Michael Harvey and Gerard McManus, which has already been referred to. I suspect that some sceptics among us may simply view this legislation as the government trying to solve a potentially embarrassing problem.

As honourable senators would be aware, for as long as the Democrats have been around we have desired open and transparent government at all levels and also government guarantees of freedom of the press, freedom of speech, free media, independent institutions and an informed and educated population. So it is worth noting that the issue raised by the bill is of fundamental importance to the Australian community, from the perspective of both the administration of justice, which dictates that a witness must generally answer all questions put to him or her—obviously, this is how a court obtains and weighs evidence—and freedom of speech and press.

We do not oppose the establishment of laws which aim to improve Australians’ participation in democratic processes. Indeed, the Democrats have put on record a number of ideas, policy suggestions and private members’ bills that deal with the issue of reform in these areas. We have called for greater protection in the area of Australian privacy rights and the revocation of the sedition laws. We drafted the Parliamentary Charter of Rights and Freedoms Bill 2001, relating to freedom of association and the press, which is a fundamental right. We have put whistleblower legislation on record. The Public Interest Disclosure (Protection of Whistleblowers) Bill, which I think Senator Murray, coincidentally, tabled this week, supports the role of public servants as well as MPs and journalists with an open, transparent and accountable government. So our record on this is pretty clear.

We would argue that such measures, if introduced, would counter some of the negative press that we have seen on this government in recent months. I note that in Senator Nettle’s comments to the chamber she referred to a litany of encroachments on freedom in Australia today, including, arguably, press freedom. Negative reactions include the annual press freedom report commissioned by the Media, Entertainment and Arts Alliance titled Official spin: censorship and control of the Australian press 2007. This report lists 19 areas in which the media’s ability to report freely has been constricted. It highlights restrictions caused by policymaking, law enforcement, government comments and public actions. In relation to the issue of journalists’ privilege, generally the Democrats support the rights, powers and immunities that will flow from the creation of a new privilege for journalists.

But, far from being uncontroversial, there are several aspects of the legislation before us which clearly demand attention. It is unfortunate too that the scrutiny and analysis of the legislation before us is occurring tonight on the floor of the Senate, albeit with a committee stage to follow, and not within the auspices of a Senate committee. As you may know, Mr Acting Deputy President, I attempted to refer this matter when it came to Selection of Bills. I wanted to refer this legislation to a Senate committee. That attempt was rejected by the government, and I understand that the Labor Party have argued that they would prefer to wait to see the next bill in this series before considering a committee. I want to put on record the Democrats’ concern that, once again, an attempt to refer legislation, with good reason, to a committee has been thwarted by this government. I have become used to death by committee in this government, where the government automatically refers legislation with minimal analysis and scrutiny and a time frame that is usually quite constricted. This is a case where the Democrats were actually prevented from referring a bill to a Senate committee, namely the Senate Standing Committee on Legal and Constitutional Affairs.

We are concerned that the journalist shield laws’ focus is too narrow in this bill. Missing from its protection are other professionals who handle confidential or sensitive information and, as have been referred to, potential whistleblowers who, in good faith and acting in the public interest, may turn to a journalist to reveal corrupt or inappropriate conduct on the part of public servants—individuals who, like journalists, are faced with a daily ethical dilemma about whether to disclose information obtained in confidence.

In relation to the absence of protection for other professionals, it is generally accepted that confidentiality and privilege issues arise in relation to doctors, social workers, counsellors and priests, among others. In my home state of South Australia at the moment, health professionals are grappling with quite a difficult public health and legal policy issue that arises from the provision of counselling services to people living with HIV. While I note, as foreshadowed in the Attorney-General’s second reading contribution, that this bill is part of a wider legislative reform agenda, a decision by the government not to include these professionals in this scheme today is of great concern to the Australian Democrats. The decision to exclude priests, doctors and others also apparently sits uncomfortably—certainly according to the Sydney Morning Heraldwith the New South Wales Attorney General, who has accused Mr Ruddock of going back on an agreement to extend the protections to people other than journalists.

In light of such criticism, the Democrats urge the government not to delay in any way bringing to parliament or releasing for public comment—for example, as an exposure draft—its second proposal. I think that should be done with alacrity. These issues are of grave importance to the community as a whole and need to be finalised quickly. It is unfortunate that the government has not seen sense in introducing the measures as part of a single package. I hope that this decision will not compromise state government cooperation in working towards uniform evidence laws across the country.

As for the absence of protection for whistleblowers, how appropriate that we should be debating this bill in the Senate in the week that Allan Kessing is to be sentenced—and I know that this was referred to in the original contribution by Senator Ludwig—for breach-ing confidentiality despite having exposed real problems at Australian airports. It is a little coincidental and a bit ironic. It is shameful how the government treats the case of Michael Harvey and Gerard McManus on the one hand and the case of Mr Kessing on the other. It is simply a case of Harvey and McManus being protected under this regime and Mr Kessing not being protected.

The Democrats caution the government that, unless it acts to protect whistleblowers, this law may actually backfire on it; there is the potential for unreliable sources to abuse this qualified privilege and to go to journalists to blow the whistle instead of following a suitable whistleblower protection scheme, which would emphasise escalation steps, if you like. This is just further evidence as to why we desperately need a private member’s bill or, indeed, a government initiated bill on whistleblowers and protected disclosures. We also echo the concern that has been stated by the Media, Entertainment and Arts Alliance that the bill risks ‘amounting to nothing more than rhetoric, without accompanying protected disclosure laws to prevent whistleblowers from being hunted down and prosecuted’.

In addition to these concerns—as you may be aware, Mr Acting Deputy President Barnett—the Parliamentary Library in its Bills Digest has also helpfully identified several aspects of the legislation that are problematic. I think Senator Nettle referred to a couple of these, as did the Labor Party in their contribution. Nonetheless, there is the proposed protection of confidences where they are made in the presence of a third party, if the third party’s presence is necessary to facilitate communication. The problem with that is that ‘third party’, unfortunately and perhaps unhelpfully, is not defined nor explained in the explanatory memorandum. I am happy for the minister to perhaps elaborate or define for the benefit of the Senate what is meant by the terminology ‘third party’.

Secondly—I know that Senator Nettle referred to this in her contribution—proposed section 126D is controversial in that it provides that the protection provided for by the professional confidential relationship privilege will not apply when the information contained in the document itself contains or its communication involves fraud, an offence or an act that renders a person liable to a civil penalty. ‘Fraud’ is defined broadly and again without any protection for whistleblowers. Almost any unauthorised release of information by a Commonwealth public servant may constitute an offence of some sort. Thirdly, the proposed section 4A to be inserted in the JHIPA excludes the application of the professional confidential relationship privilege from a James Hardie proceeding, although this exclusion does not apply to authorised persons—that is, people who have seen the conduct of a James Hardie proceeding.

The Democrats are also concerned about the absence of a clear definition of ‘a journalist’. I am not sure whether in her contribution—which no doubt will follow mine—Senator Wortley will give her view on this particular issue. I note that the explanatory memorandum states merely that ‘a journalist’ is to be given its ordinary-usage meaning. But who and what is a journalist? I am sure that people in the chamber have their views, but I am sure that the minister will articulate his view as well.

There is also an absence of clear guidance as to when a journalist may be acting in their professional capacity, which begs the question: what constitutes professionalism in that instance? Formulating and enforcing a code of ethics and a code of conduct are two characteristics of many occupations which we may regard as professions. While law, medicine and teaching have had their share of adverse publicity, it is true that they are still seen probably as the leading and most attractive occupations because their ethical obligations are clearly spelt out in primary legislation. As to journalists, I note that the Attorney-General in his second reading contribution rightly states that journalists:

... operate under a strict code of ethics which stipulates a clear obligation to keep a source’s confidence.

But different from other professions is the fact that a journalist’s code of ethics is self-imposed. I am not necessarily debating the worth of that or otherwise, but clearly there is a differentiation.

In this proposed bill there is the opportunity for such a code to be enacted in the legislation. The Democrats would welcome seeing reference somewhere in the bill that a journalist acting in their professional capacity is someone who has agreed to be bound by a code of ethics. I am not sure what Senator Wortley’s view of that is. Again, I refer to her because of her former capacity. She may shed some light on this that may benefit the Senate.

A further issue with journalists’ professionalism in this bill is the way the bill also seeks to determine professionalism by reference to the chosen medium in which a journalist may report the news. The explanatory memorandum states that a journalist may sometimes not be acting in their professional capacity—for example, if they blog. The Democrats take issue with this idea of narrowing a journalist’s professionalism in this way. We would suggest that a technology neutral approach to journalism that is more clearly spelt out in the proposed bill would be more appropriate.

It is also unclear what impact, if any, this legislation may have on other areas of the law. Uniform defamation laws were introduced in January 2006 in every state and territory. Presumably, given that this bill establishes a qualified privilege for journalists, it recognises that in the interests of society a journalist should be able to communicate frankly with their source without fear of a defamation action. Of course, a well-known principle of defamation law is that, if a communication is covered by qualified privilege, a plaintiff can only succeed in an action of defamation by showing, in addition to the usual matters which must be proved, that the defendant was motivated by malice in making this statement. I ask the government, through you, Mr Acting Deputy President: has the government assessed the impact of this proposal on defamation law?

Another type of privilege, legal professional privilege—or client legal privilege—has proved to be one of the more common exemption claims under Australian freedom of information laws and has featured in a lot of the reported decisions. As honourable senators may be aware, the current Australian Law Reform Commission inquiry into privilege focuses primarily on the concept as it applies to federal investigatory bodies, but the issues paper recently released gives a comprehensive overview of the concept and raises some important questions about the extent to which privilege should be abrogated and in what circumstances. I have no doubt that this inquiry was prompted by issues raised in the AWB and HIH royal commissions, where there were attempts to claim privilege in order to frustrate investigations. Some of the discussion of privilege in the Australian Law Reform Commission issues paper will be grist for the mill in considering the privilege exemption in the context of this bill.

Equally, another impact which appears to have been overlooked is the protection for disclosures outside courts. Many statutory non-court bodies or administrative bodies have come to play a significant role in the resolution of disputes at the federal and state levels. Although differences in operation vary substantially between these bodies, in some cases the rules of evidence may apply. Even the royal commission process, which might hear evidence of journalists, in most instances will observe court etiquette and the rules of evidence, at least in part.

Senator McGauran, as an example, gained access to a woman’s private hospital records and medical records, despite the patient’s refusal to give her consent to their disclosure and despite her doctor’s refusal to provide the information on the basis of a well-established privilege—doctor-patient privilege—and then used his parliamentary privilege to discuss the case. I believe this did much harm to public confidence. So clearly there are a number of privilege issues that are worthy of discussion in a community context and, particularly in light of this legislation, in the Senate as well. I am sure that there are a number areas of parliamentary privilege—discussions, maybe outbursts, under parliamentary privilege—that are worthy of examination.

Such is the magnitude of the decision before us to enact this bill that, rather than ram it through the Senate, as we are about to do, the Senate Legal and Constitutional Affairs Committee would again have been the most appropriate place for us to examine some of these outstanding issues in relation to broader issues of privilege, the absence of protection for whistleblowers and some of the other issues that have been raised by me and other members in this place.

I really do not understand—and I am happy for the minister, Senator Johnston, to explain to us—why there was a need to push this through the parliament tonight. I do not understand why agreeing to a reference, even on Wednesday through the selection process, would have unnecessarily delayed such an important piece of legislation. Why was it that we could not explore some of these issues through the committee process—not necessarily a long one? Why couldn’t we have invited members of the community, including the journalist community, to play a role in this debate? (Time expired)

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The Evidence Amendment (Journalists’ Privilege) Bill 2007 is quite an important piece of legislation. By way of introduction, it is also way overdue. Such legislation has been in operation in New South Wales for the best part of 10 years. That begs the question: how serious is this government in implementing these amendments? I ask that question because the policy behind the amendment is about protecting freedom of information in the public interest. Yet, as we know, this policy is anathema to the current government. The Howard government’s hallmark in this area is to stem and control the flow of information and squash or reduce informed public debate. The government is not interested in transparency or in serious accountability. As we have just seen in the Customs portfolio, it is determined to jail anyone who dares to speak out, even if the information revealed by the whistleblower is correct. The threat of the Crimes Act being applied to whistleblowers is now commonplace—

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Madam Acting Deputy President, I rise on a point of order. With respect to Senator Bishop suggesting that someone in Customs is to be jailed: he is to be sentenced on the 22nd of this month. I would appreciate it if the senator did not mislead the chamber. For his own benefit—I am not carping at him politically—I simply say that I would hate for him to have to come back and correct the record.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Minister. Senator Bishop, in your contribution just be aware of that process.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

On the point of order, if the particular person is to be sentenced, necessarily an option is a period of confinement.

The Acting Deputy President:

Senator, I have ruled on the point of order and I have asked you to be aware of the process as you continue with your contribution. Thank you.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

That is why we say that this amendment seems to be an aberration for this government. Nevertheless, putting that contradiction aside, we do not hesitate in saying that this bill before the parliament is welcome. In the interests of free speech and in protecting those brave enough to speak the truth, we welcome the amendment. We particularly welcome it for those in the media. They have been threatened with jail if they print those same facts and refuse to reveal their sources to the thought police from this government. I will not go into the technicalities of the amendment—the minister’s second reading speech has done that adequately—but I will spend time reminding the Senate and those listening about the stupidity which brought this issue to a head.

I addressed the Senate in similar terms in September 2005. Let me for the record reiterate those circumstances. This is especially important because that stimulus was trivial in the extreme. In fact, as a test case for the basic principle of journalistic protection, it is absurd. The circumstances were as follows. The then Minister for Veterans’ Affairs, having procrastinated and stalled on policy for veterans, took recommendations of the Clarke review of veterans entitlements to cabinet. Instead of getting anything like what Clarke recommended—more than $600 million—the minister was rolled in cabinet. She got a touch over $100 million. Anticipating the announcement of her then coup, the PR machine had gone into overdrive. Veterans from across Australia were flown to Canberra for afternoon tea and cream cakes with the minister. They assembled for the planned announcement, straight after the government party room endorsed the package. Draft media releases for the minister, backbenchers and senators were drafted and printed. Fact sheets and questions and answers were also prepared. All were distributed around the DVA state network, in every state, for a coordinated splash. It was to be the peak of the minister’s career—and properly and rightfully so, had she been successful: the crowning glory of three years of doing little but cutting ribbons and handing out badges. But tragedy struck that morning.

The party room rolled the minister, the Prime Minister and the cabinet. They said it was not good enough, and veterans would not be happy, and they were absolutely right at that time. As a consequence, the PR machine was shut down. The veterans’ representatives were sent home without their cream cakes and the minister was sent back to try another set of proposals. Immediately after the party room revolt, details of the rejected package were revealed. Later media reports gave most of the detail. This was sourced to numerous backbenchers. They were proud of their nerve, and seeking credit for their rebellion. The humiliation of the minister began. She wore the shame of an incompetent cabinet decision—her grand parade had been rained upon in torrents. But there was more. The PR material, now on the public record, was junked. One set of that junk found its way to the Herald Sun. Of course, all the detail was revealed. More humiliation. No doubt the minister was enraged and, after counsel from those obsessed with secrecy, the witch-hunt began.

The department set off to find the leaker of this three-day-old material, which was already public knowledge. The department, to cover itself, called in the Australian Federal Police, who, by analysis of computerised phone records, identified a suspect. That person was charged under the Crimes Act by the DPP and suspended without pay. This minor misdemeanour, of revealing old information, became a hanging offence. This heinous criminal was to be punished. Dismissal was to be the most likely outcome—a career ruined and retirement plans in shreds. It was not a matter of national security, nor was it concerned with any great matter of government policy—this was a petty offence, barely an offence at all. But it was a serious political error. Hell hath no fury like an incompetent minister shown to be so publicly. The minister’s ego was smashed, her career about to end in ruins. Someone had to pay, with his head set on a pike in front of the Public Service gates for everyone to see and to learn from.

The tale continued to the Victorian County Court. A jury found the accused public servant guilty. Fortunately, the triviality of the offence was recognised. On appeal, the charges were dismissed—common sense at last prevailed. In fact it is a little bit like that Australian short story we all read as kids: John Price’s Bar of Steel, set in convict times. The bar of steel wrongfully possessed by the convict John Price was really a pin—but, by strict definition, an offence to be punished, with a severe lashing. The lesson had to be learned, and what better way of teaching it. Things have not changed since with the current government.

Meanwhile, none of this absurdity matters a tuppeny damn. The journalists who revealed the stale information—already on the public record for three days—refused to reveal their source. For that the court threatened them with a charge of contempt. That carries a penalty of jail. So, what was a trivial issue took on a more serious nature. Commentators, journalists and editors were all concerned. There have been far more important and high-profile leaks, including, many years ago, an entire annual budget, but to threaten the journalist concerned with contempt and jail was sensibly not pursued. So we say this bill is a useful circuit-breaker.

It is to be noted that this protection for the media, as Senator Stott Despoja outlined, is not absolute. The criteria set out to achieve that protection are clear, though unfortunately discretionary. There is still a strong public interest provision in the amendment. We say, openly and up front, that none of this should be taken as support for the practice of leaking information, but there needs to be balance, especially when other means of obtaining public information are strictly curtailed, as they presently are in Australia.

We all know that as a practice, illegal or otherwise, leaking works. It works as a check against those who transgress good governance and accepted values. It has often worked to reveal corruption, lies and incompetence. Many instances have been referred to in media commentary. The Prime Minister himself—we should acknowledge this—is a past master of grasping the political opportunities that leaking offers. His recent attempts to deny his advertising budget are just one example of his own exposure. Devious and deceitful behaviour is properly abhorrent to all Australians. Leaking is a direct result of that offence being caused to honest people. For the Prime Minister, it is a case of the biter bitten. It simply depends on which direction the information is flowing in and who is in control.

When I last addressed this issue in this place I offered support for the Liberals who might prevail and get this proposal introduced. I congratulate them for prevailing over the forces of darkness. It is therefore pleasing to see this amendment before us today, and we in the opposition are very pleased to be able to support it. If my memory serves me correctly, the minister who is introducing the bill before us today was one of those who were sensibly and critically involved in some of those discussions in 2005. On that note, I close my remarks and thank the minister for his interjection.

Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2007. In doing so I indicate my general support for the bill but stress that the bill does not go far enough and that the protection afforded is limited.

This is a bill to amend the Evidence Act 1995 to introduce a new privilege that allows journalists facing trial to refuse to disclose the identity of their sources. It would give the court discretion on the matter, requiring it to exclude evidence where the nature and extent of the likely harm to a protected source outweighs the desirability of the evidence being given. There are, however, several caveats to this which relate to specific instances in which the discretion may not be used. What this bill fails to do is address the issue of legal protection for the journalist’s sources—for whistleblowers and others who provide information to journalists. I would not be overstepping the mark by saying that it is too little and, for some, too late. The reality for anyone with their eyes open is that this is just another example of the Howard government’s approach to legislation in an election year. We have been waiting since 2005 for the Attorney-General to make good on the commitment to pass ‘shield laws’ to protect journalists. Now, two years later, what we have before us is a step in the right direction, but it is not the leap that it could have been and this in itself is disappointing. The absence of protections for public interest disclosures means that we have again missed an opportunity to address inadequacies in our laws. The broader question of protections for whistleblowers and for all professionals with a confidential relationship to their clients remains to be addressed.

This bill has made the legislative agenda because of the plight of two journalists, Michael Harvey and Gerard McManus, who are awaiting sentence for refusing to identify their source for a story that forced the government to abandon their plan to cut war veterans benefits. While these laws will not be retrospective, the Solicitor-General has made representations to the court that the law was in need of reform.

At our national conference, Labor committed to a national platform that includes the following: we would legislate for proper freedom of information laws that enable Australians to access appropriate information about government activities, we would move to implement the Australian Law Reform Commission recommendations on sedition laws, we would provide shield laws for protecting confidential sources and protecting whistleblowers, and we would review those laws that criminalise reporting of matters of public interest.

It has been argued that this bill provides some protection but that it could fail to be effective when journalists were speaking the truth about matters the government did not want revealed. Legal academic Dr Alexander Brown of Griffith University is head of a national project to reform whistleblower laws. He said in relation to the bill that journalists would still be dragged into prosecutions unless the government introduced whistleblower protection laws. The Media, Entertainment and Arts Alliance has said that the changes will amount to nothing more than rhetoric without accompanying protected disclosure laws to prevent whistleblowers from being hunted down and prosecuted. The Australian Press Council has also stated that the bill is too general to adequately protect journalists. The media alliance federal secretary and immediate past President of the International Federation of Journalists, Christopher Warren, said:

While journalists’ sources remain unprotected at federal law by anti-corruption body and whistleblower legislation, it is a farce to suggest this bill will in any way address the deplorable state of press freedom in this country.

The Age, while welcoming the new laws, also highlighted concerns in its editorial on 4 June when it wrote:

... the law also contains a glaring deficiency, because it neglects the vital role of whistleblowers who act in the public interest when they go to the media. In debate, Labor rightly lamented the failure of this legislation to protect the source on whom the journalist relies in the first place. That is of particular concern given the zeal with which governments have in recent times pursued whistleblowers, even when the public interest clearly justified bringing to light the information they had. Until that half of the press freedom equation is resolved, Australians’ right to know what their governments are up to will remain compromised.

The media alliance report Official spin: censorship and control of the Australian press 2007 highlights freedom of information, sedition, protection of whistleblowers and shield laws for journalists as areas where press freedom is suffering, and where there is a pressing need for legislative review.

The report also raised the issue that a question on notice in parliament last year revealed that, between 2002 and 2006, there were 53 referrals from Commonwealth government departments and agencies to the Australian Federal Police over ‘unauthorised disclosures of government information’. To quote from that report:

The introduction of laws protecting journalists from prosecution for maintaining the anonymity of their sources is merely nominal if whistleblowers can and will be uncovered and prosecuted by the authorities.

In May this year the Australia’s Right to Know media coalition was formed by a broad cross-section of the media, including the ABC, AAP, News Ltd, SBS, Fairfax and Sky News as well as commercial TV and radio organisations. The coalition announced that court suppression orders, the rejection of freedom of information applications, antiterrorism laws and increased government and police intervention had severely eroded press freedom in recent years. They quoted Reporters Without Borders ranking Australia at No. 35 on its worldwide press freedom index. Shamefully, that is a ranking which puts Australia below Estonia, Bosnia, Bolivia and Ghana in the press freedom index.

The Australia’s Rights to Know coalition has also compiled a list of examples of some current impediments to free speech, including:

• The Federal Government has finally agreed to release its 18-month-old polls into what the public think of its WorkChoices law – but not until after the election ...
• The Federal Government claimed it was “not in the public interest” to release information on the first home owners’ scheme, including the number of wealthy people fraudulently claiming the $7000 grants under the scheme. A newspaper took the case to the High Court and lost.
• It has become almost impossible to get balanced reports from war zones as it has been in the past. Our military will cooperate only with embedded journalists to ensure only the official line is reported.

So, while I speak in support of the Evidence Amendment (Journalist’s Privilege) Bill 2007, I highlight that it does not address many of the reforms necessary to deliver true press freedom in Australia; it is a starting point only. I look forward to the introduction of legislation that addresses areas that have been neglected in this bill, including the adoption of the ALRC recommendations on sedition laws and the introduction of more effective shield laws for protecting confidential sources and whistleblowers.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I would like to thank senators for their contributions to this debate. The Evidence Amendment (Journalists’ Privilege) Bill 2007 assists to reconcile the legal and ethical obligations of journalists. It does this by amending the Evidence Act to provide for judicial discretion to exclude evidence that would otherwise disclose a journalist’s source. In making these decisions, the court must consider a number of facts, including the nature of the proceeding, the likely harm to the journalist’s source and any implications for national security. The bill provides an appropriate balance between the competing public interests—the public’s right to information and the freedom of the press—and the public’s confidence that judicial decisions are based on relevant information.

The privilege is largely modelled on an existing privilege relating to confidential communications that exists in New South Wales. I cite the New South Wales Evidence Act 1995, which has a comprehensive model that, for the sake of uniformity, has been followed. The Commonwealth agreed to adopt the New South Wales provisions as the appropriate model for that reason. This approach was recommended by the Australian, New South Wales and Victorian law reform commissions following an 18-month review of uniform evidence law.

As the Attorney-General has said, the Australian government’s move to introduce this legislation demonstrates the Commonwealth’s position on this issue. This was necessary, as senators have noted, in light of the proceedings involving two journalists, Gerald McManus and Michael Harvey, currently before a Victorian court. The Commonwealth Solicitor-General made submissions in that case that a judge ought to have discretion to ensure that, in appropriate cases, broader public interest can be taken into account, which might mean that penalties, particularly terms of imprisonment, would not be imposed. As these proceedings are in Victoria, it will be equally important that the Victorian government also demonstrates its commitment by legislating on the issue. I note that senators have conveniently failed to acknowledge that obligation.

I would now like to address some specific concerns raised by senators and dealing with the issue of uniformity. Although this bill applies only to journalists, it is wrong to suggest that the introduction of the bill reneges on the Commonwealth’s commitment to uniform evidence law. The Standing Committee of Attorneys-General is still in the process of finalising the model evidence bill. The working group of officers from the Commonwealth, states and territories is currently considering an expert reference group report and finalising a model for the consideration of the SCAG ministers. The Attorney-General has indicated that he is optimistic that the standing committee will reach agreement soon. The Attorney-General hopes to introduce a second bill to implement the remainder of the government’s response to the Uniform evidence law report.

There are a number of mechanisms already in place to address the issues raised by whistleblowers. The term ‘whistleblower’ should not be used glibly or recklessly when people are breaching their contracts of confidentiality. Governments must be able to conduct their business with a degree of confidentiality.

Federal public servants who report breaches of the Australian Public Service code of conduct for discrimination and victimisation under the Public Service Act are already protected. Similarly, the Commonwealth Ombudsman examines complaints over the actions and decisions of Commonwealth agencies. These mechanisms provide appropriate avenues for public servants to raise issues they are concerned about. It is not always in the public interest that information be disclosed. That is quite a trite statement and obvious. In some instances releasing information may be an infringement of privacy, damage reputations and undermine national security, as I have already mentioned.

It is discouraging that a number of senators have sought to take this debate to areas which range more widely than the issues before the chamber tonight. I see little point in addressing those save to say that, whilst the opposition uses the opportunity of this bill to criticise this government, I note that it supports the bill. It criticises the bill and it criticises the government, yet it has no policy on this matter. On this subject, the opposition has a very clear model to copy—that is, the New South Wales model. As I have said, for the sake of uniformity we have conducted this legislation in line with that model. I note the Greens have amendments here tonight, yet the opposition is prepared to complain and talk about the bill and say that there are things wrong with it and yet they have no amendments. As usual, the opposition is simply conducting a hollow political exercise of carping while having done no real work to address the issues about which they complain.

The bill is a significant amendment to evidence law and I welcome the opposition’s support. I pause to also say, in addressing Senator Stott Despoja’s issues, that the measures contained in the bill will impact on the evidence that may be adduced in any defamation case. However, these amendments to the Evidence Act will not affect the substance of the law that has to be established or proved to the standards required. The bill recognises the important role journalists play in our democracy and the need for journalists to protect their sources. This bill reconciles that need with the need to ensure that all appropriate evidence is before the courts. Accordingly, I commend the bill to the Senate.

Question agreed to.

Bill read a second time.