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Monday, 10 October 1994
Page: 1339


Senator ELLISON (5.28 p.m.) —Mr Acting Deputy President, the inquiry by the Senate Standing Committee on Legal and Constitutional Affairs into the rights and obligations of the media was most interesting because it touches on the relationship between society and the fourth estate. Indeed, as was said during the course of the inquiry, without investigative journalism and without freedom of the press, this country would definitely have been the poorer because aspects of corruption, controversy and other matters of public interest would not have reached the notice of the community at large.

  Perhaps that is why so much importance is placed on journalists being able to protect their sources. The basic principle is that, if a journalist cannot guarantee confidentiality, people will not be forthcoming in approaching journalists and providing them with crucial information. I refer to the case of Tony Barrass, a journalist from my home state of Western Australia, who was gaoled for seven days for refusing to reveal his source during a petty sessions trial. That was a most dramatic illustration of the law coming into conflict with the journalistic ethic of protecting one's source—and that is why this was a most important reference.

  There have been other more recent examples, occurring not only before courts but also bodies of inquiry such as ICAC. There was the case of Deborah Cornwall, who appeared before such a body. In the end, she was given a suspended sentence and ordered to do community service work for not revealing her source. So, at the outset, the committee realised that this was a most important aspect of a democratic society—that the freedom of the press not be interfered with.

  However, balanced against that is the question of the administration of justice. That, too, is a very high ideal and an essential principle of any democratic society. In looking at the question of whether journalists should be afforded some sort of privilege, we had to look at the question of justice. The committee came upon a recommendation which, I think, strikes a reasonable balance in the circumstances. This allows a limited protection and reads as follows:

The Committee recommends enactment of amendments to the Evidence Acts (Commonwealth and State) to provide that a journalist who has received information from a source on a confidential basis which is subsequently published will not necessarily be compelled to answer questions relating to the identity of that source. The court could, of its own motion or on the application of a party, and having considered each of the factors listed below, order the journalist to answer questions relating to the source's identity on the basis that the public interest in the administration of justice in that particular case outweighs the public interest in maintaining the confidentiality of the source.

That is perhaps the nub of the recommendation. The committee went on to recommend various factors that should be taken into account: whether the evidence of the source is essential to the issue of the case—for instance, the guilt or innocence of the person accused of the crime; whether the maintaining of confidence would result in concealing criminal activity; and whether the witness has been given an opportunity to contact the source in order to seek a waiver.

  A number of other factors have to be considered, but I will not go into them here. Suffice to say that they are reasonable and cogent considerations in the administration of justice. I believe that the committee has achieved a sensible balance.

  The committee also considered the question of accountability of the journalistic profession. If this privilege is to be afforded to journalists in the course of a hearing it would place them in a privileged class of persons. Not every citizen can go before a court, refuse to answer a question and be allowed to do so on lawful grounds. That is something that would normally attract an action for contempt. It would be placing journalists in the league of, perhaps, lawyers, priests and the like.

  The committee quite sensibly tied together the aspect of the shield law for journalists' confidential sources with the accountability of that profession. I believe that, if a journalist is guilty of gross unethical behaviour such as inventing a source or, as one journalist mentioned today, of conducting an interview with his typewriter, we have a most serious situation on our hands. The community cannot let that go without check.

  That is where the Press Council and the MEAA need some sanction which can be applicable to the profession. The committee recommended that the Press Council be given power to impose and enforce sanctions on the print media. This should be done by legislation if necessary. That does not mean that the Press Council should become a body run by the government to control the press; it is nothing of the sort. This would allow self-regulation and, if a journalist did have an interview with his or her own typewriter and invented a source, a sanction could be applied. As the old saying goes: of the person to whom much is given much is expected.

  When one gives a right to a person, a reciprocal duty is expected. If we give a person the right not to answer a question in a court of law, that person has a duty to use that right responsibly. Lawyers have those rights and they are accountable. Lawyers can face a number of penalties from bodies which regulate their behaviour—the most draconian being the striking off of that lawyer so that he cannot practise law again. If journalists are to be given this sort of protection, there must be some accountability.

  I am not saying that that accountability should interfere with the freedom of the press, because that would be the last thing that anyone would want. The freedom of the press is essential to the good running of society as we know it.

  Finally, I would like to place on record my thanks to Senator Cooney for the work that he has done as chairman of this committee. As Senator Spindler said, Senator Cooney is well known for the manner in which he conducts meetings and for his graciousness to witnesses which results in the committee getting to the bottom of issues. I also thank my colleagues from the coalition for their input. I thank Senator Spindler for his work in relation to this reference and the other references that have been before this committee.

  This was a unanimous report. It is a report which will stand in good stead for the future and will assist the government of the day in looking at how to approach this very complex and difficult problem. The report is detailed and comprehensive. That is due in no small way to the efforts of the secretariat to the committee. The secretariat did a most thorough job. I hope that we can come up with as comprehensive and cogent a report when we deal with the next terms of reference in relation to the media.