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

by leave—I move Greens amendments (1) and (2) on sheet 5283:

(1)    Schedule 1, item 1, page 5 (line 7), after paragraph 126B(4)(h), insert:

                 ; (i)    the public interest in maintaining the protected confidence of journalists sources.

(2)    Schedule 1, item 1, page 5 (lines 8 and 9), omit “, and give the greatest weight to,”.

I explained the purpose of these amendments in my speech in the second reading debate. They are about trying to ensure that we recognise the public interest of journalists being able to keep the confidentiality of their sources. The example that I gave in my speech was in relation to airport security and the flaws around airport security that were revealed by the whistleblower. The public has an interest in ensuring that whistleblowers and others remain anonymous so that they feel confident in providing information to journalists. There is a public interest in having whistleblowers feel willing and able to put forward their information in a way that assists the community, such as in the airport security example that I used. That is the intention behind the first amendment. The second amendment, as I described during the second reading debate, relates to national security, which the judge must consider in making a decision about protection of journalists’ sources. It is appropriate that it be a factor, but the concern that the Greens have is about giving the greatest weight to national security so that it overrides all of the other considerations. We do not think that is appropriate. We think it should be a factor but not given the greatest weight. That is what the second amendment does.

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

With respect to Greens amendment (1), the additional factor is unnecessary. The explanatory memorandum makes it clear that the factors listed under section 126B(4) are not limited to those listed. Indeed, the explanatory memorandum notes the intention is to protect the freedom of the press and enhance the public’s right to know. The very nature of the bill makes clear the intention to maintain and protect the confidences of journalists. I also add to this that it is very clear that the bill is modelled to conform and to be uniform with the New South Wales legislation. With respect to Greens amendment (2), it is necessary to give national security the greatest weight in order to ensure disclosure of information in circumstances where national security is relevant. It updates the New South Wales model, which was developed, as I think I mentioned, in 1998. It is also appropriate that the test be the same as in other legislation where national security is a factor.

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

Labor understand the principle the Greens are enunciating, but Labor, unfortunately, in this instance cannot support their amendment. There are two issues. Firstly, this clause has been specifically modelled on the New South Wales Evidence Act. The uniform Evidence Act 1995 and the part that you then amend by inserting the additional clause in proposed section 126B(4) is one of those which is not listed in the Evidence Act of New South Wales. That, of course, does not preclude the use of that provision in the way proposed subsection (4) is modelled, which states ‘without limiting the matters that the court may take into account’. So there are, by those very words, other matters that can exist that can be taken into account, and the court has that discretion. So, if those matters were relevant or germane to the argument, I am sure the legal counsel arguing on behalf of those people who might be in this circumstance would invariably argue that and a range of other matters.

The other matter is that if you juxtapose the New South Wales Evidence Act with the ALRC review—to paraphrase rather than going to the provisions—it says that this area should be modelled on the New South Wales Evidence Act 1995 in its terms. To gain uniformity across the jurisdictions, it settled on section 126B of the New South Wales Evidence Act 1995 and encourages both the Commonwealth and the other states and territories to similarly adopt this process. So, without more, Labor does not see that it would add anything. In fact, it would detract from the uniformity of all of the other states and territories utilising 126B in the form promoted by both the New South Wales Evidence Act itself and ALRC report No. 102.

In respect of the second amendment, which goes to national security being given the greatest weight, without more, the Labor Party is left with the position that national security is important. It is important to ensure that it operates and that those matters are dealt with properly and appropriately by the courts. What I can say in progressing this is that the government did give an assurance that this area is to be revisited. My view and Labor’s view—and it is certainly not the government’s view at this point—is that the government will respond to ALRC report No. 102.

In that report there are a huge suite of changes proposed and recommendations put forward by the ALRC which I think this government will consider and bring back here, because some of them are necessary to ensure the uniform Evidence Act works effectively. So I think we will get an opportunity to revisit this area in detail and through a committee process. Labor will certainly be not only pushing for but demanding a proper committee process for that suite of changes. The Labor Party see the need to amend the legislation in this way. It should go further. It is piecemeal. We can make criticisms about the process, but the opportunity will be there.

The other part of the overall framework is that we are only getting the Evidence Act before us. If you go to the Keeping secrets: the protection of classified and security sensitive information report—and I am sure senators in the chamber may not have it with them, but they have probably read it—which was ALRC report No. 98 back in May 2004, you will see that it summarises how the whole of the area does need to be addressed and where this government has in fact failed. It goes to quite succinct areas. It goes to the accountability of the executive. The report states:

It is a central tenet of representative democracies that the government is open to account for its actions, policies and administrative decisions. A key part of this accountability is public access to the information on which action and policies are based.

So we are talking about open government and the ability to have adequate freedom of information laws.

The section of the report which talks about open government also deals with privacy. The aim of that, of course, is to protect personal information about individuals and to give them some control over how that information is collected, stored, used and disclosed. The privacy principles are very important in that area, but we know that there is already a significant privacy review underway. The report also underscores where I think this government has not acted effectively on the reports and recommendations that were made some time ago.

The same chapter of the report deals with protection of whistleblowers. It states:

One further element in an effective system of open government is providing protection for ‘whistleblowers’ from some of the consequences that might normally follow public interest disclosures, such as prosecutions for breach of a secrecy provision, the imposition of administrative or disciplinary sanctions, or other reprisals.

Of course, we know that this government, back in September 2002, ignored the Senate Finance and Public Administration Legis-lation Committee report which considered and noted:

Whistleblowing or public interest disclosure schemes rest on the premise that individuals who make disclosures serve the public interest by assisting in the elimination of fraud, impropriety and waste. An effective whistleblowing scheme is a necessary part of maintaining a good public administration framework …

We know that the government has not progressed separate whistleblower or public interest disclosure legislation federally.

So this government has dealt with all of those matters with a slither, but we cannot use this vehicle to promote those. We can only bring pressure and argument to bear on and debate those matters on which this government has failed to ensure openness, transparency and public accountability of government. This is not the bill to do it with, but it is open to us to make the point about where this government has failed. Having listened to the second reading debate contributions of other senators, I think those points have been well made. I have taken longer than I thought I would, but I thank the Senate for its time. I indicated at the outset that we would not support the Greens amendments, but I thought it worth while to put that in context and indicate Labor’s general position in this area.

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

I am sure we all thank Senator Ludwig for doing so; I could listen to him talk about that Evidence Act for hours! First of all, I want to seriously acknowledge the point made by Senator Ludwig on behalf of the Labor Party in relation to a more detailed examination of some of the issues and the prospective legislation in this area. The Democrats certainly look forward to the opportunity to analyse the suite of reforms through the Senate committee process. I still think it would have served a useful purpose in this circumstance, but I understand the will of the Senate and look forward to that opportunity in the future. I also take note of Senator Ludwig’s reference to the privacy review that is underway. That will be another significant report for the Senate to examine. I look forward to the government at some point addressing some of the loopholes and flaws in Australia’s current privacy regime.

The Democrats are sympathetic to the position that the Greens have put forward in their amendments. Our reading, and obviously that of others, of the first amendment is that the addition of a reference to ‘the public interest in maintaining the protected confidence of journalists’ sources’ provides additional protections, particularly for whistleblowers. My party will be supporting the intent of that amendment. We do not have a problem with the second amendment. We have expressed concern about something being given greater weight, so we will be supporting that amendment.

Through you, Chair, as I have done privately in the last few moments, I implore the Greens to consider whether or not they need to divide when people have indicated on record how they will vote. However, that is not my decision to make. Having said that, the Democrats will be supporting the amendments before us. Given what the first amendment is intending to achieve—that is, further protection for whistleblowers—we will all need to look at it in the next tranche of legislation. However, in this case, the terminology refers to ‘protected confidence of journalists’ sources’. We will support the amendments before us.

Question put:

That the amendments (Senator Nettle’s) be agreed to.