Senator BRANDIS (1:30 PM) —This afternoon I want to address the case of the two journalists Michael Harvey and Gerard McManus. As honourable senators would be aware, Messrs Harvey and McManus have been called as prosecution witnesses in the trial in the Victorian County Court of Desmond Patrick Kelly, a former Commonwealth public servant charged with leaking confidential government information. They do not appear voluntarily but are under the compulsion of a subpoena. In pre-trial proceedings last month, Messrs Harvey and McManus declined, on the basis of the Australian Journalists Association’s code of ethics, to answer prosecution questions which might disclose the source of information which they used in writing an article, published in the Melbourne Herald Sun newspaper, relevant to the Kelly case, and have indicated that they would feel bound to maintain that position at the trial itself. As a result, they have exposed themselves to the risk of punishment, including potentially imprisonment, for contempt of court—a matter which the trial judge, Judge Rozenes, made clear to them in the course of last month’s hearing.

I know Mr McManus and Mr Harvey, although I do not know either of them well. Nothing I am about to say is influenced by any partiality in their favour. The case of Harvey and McManus raises squarely the issue of whether the law should be reformed to give some measure of privilege in legal proceedings to journalists to enable them to protect their sources. More broadly, it highlights the inconsistency in the treatment which the rules of evidence give to information imparted in confidence, and provides an occasion for the whole area of the treatment of professional confidences to be reformed. By coincidence, it comes at a time when the Australian Law Reform Commission is undertaking a major inquiry on the reform of the law of evidence, and I commend to honourable senators the ALRC’s very thorough discussion paper No. 69 on this topic. This follows a reference by the Commonwealth Attorney-General to the ALRC on 12 July 2004, and a cognate reference by the Attorney-General of New South Wales to that state’s Law Reform Commission.

The New South Wales Evidence Act 1995 is based on the Commonwealth Evidence Act 1995 and is substantially uniform with it, although, as I will point out later, not in relation to the treatment of professional confidences. Unfortunately, that uniformity does not, at present, extend to the other states and territories, although all of them have expressed in general terms their support for a common set of rules of evidence applying in all jurisdictions. It is one of the objectives of the ALRC’s current inquiry to encourage that process.

The law relating to the privilege of communications does not, however, merely suffer from the problem of inconsistent treatment between Australian jurisdictions. I have for a long time been of the view that the law in this area is riddled with irrationality and inconsistency, and has long stood in need of comprehensive reform which gives equivalent status to a range of professional relationships. At common law, there were only two relationships which were privileged from disclosure in courts: marital relationships and relationships between lawyer and client. There were other forms of privilege as well, in particular the privilege against self-incrimination, the privilege now called public interest immunity, and the privilege of without prejudice negotiations. But those privileges were not based on, and did not depend upon, the existence of a particular category of relationship.

The doctrinal basis of the privilege in those two categories was quite different. Spousal privilege was based on the ancient legal fiction, ultimately derived from Christian theology, of the unity of husband and wife. The doctrinal basis of legal professional privilege, or lawyer-client privilege, as it is today more commonly called, is more controversial, but most scholars agree that it ultimately derives from the principle that a lawyer is his client’s alter ego in court, and therefore there must be absolute freedom of communication between the two. The justification is a functional one.

The traditional justifications for the extension of relationship based privilege to only those two types of relationship have never been satisfactory. The basis of spousal privilege was a legal fiction, while the basis of legal professional privilege cannot explain why it extends to non-curial lawyer-client relationships. But more importantly, it entirely ignored other professional or intimate personal relationships which merit protection. Most famously, the common law gave no protection to the relationship between priest and penitent, so that a Catholic priest, administering the sacrament of confession, could be required by the law to reveal the secrets of the confessional, on pain of imprisonment for an indefinite period, notwithstanding that to do so was a fundamental breach of his priestly vows and a mortal sin. There has traditionally been nothing to excuse a doctor from refusing to reveal the medical secrets of his patients, even though they are imparted in the privacy of his surgery, and notwithstanding that to do so would be a serious breach of the doctor’s professional ethics for which he would be exposed to professional sanction. And, as the Harvey and McManus case has reminded us, there is nothing to protect journalists who, in conformity with their own professional code of conduct, are bound to protect confidential sources.

There has, in recent years, been some statutory amelioration of the common-law rules, as their irrationality, inconsistency and potentially oppressive application have been recognised. Today, for instance, the Commonwealth, New South Wales, Victoria and Tasmania give protection to confessions made to a priest in his professional character—but, as yet, other jurisdictions do not. In general, Australian law has not protected the confidentiality of the relationship between doctor and patient, although recently two jurisdictions, Victoria and the Northern Territory, have made express provision for it. And no Australian jurisdiction has extended protection to journalists.

There are several strong reasons why the law of professional confidences should be reformed. In the first place, the law—and in particular courts of equity—have traditionally offered very strong protection to the confidentiality of relationships—not merely professional relationships, but all relationships which might be classified as ones of trust and confidence. The jurisprudence governing the protection of such relationships is vast. Yet in one specific area, the application of the rules of evidence, that protection ceases altogether. The philosophical and policy reasons which impel courts to protect confidential relationships should not stop at the door of the court; they are just as relevant to the courts’ own processes.

Secondly, with the notable exception of the legal profession, the current law gives no respect to the ethical standards of some of society’s most respected professions, such as the medical profession. And, as a consequence of doing so, it potentially places members of respected professions in the morally hazardous position of having to choose between obeying the law, which any decent citizen would wish to do, and abiding by the ethics of their own profession, which any respectable professional person would feel morally obliged, and professionally compelled, to do. That is the very position in which Messrs Harvey and McManus have been placed. As a result, honourable people face the risk of being punished in circumstances not of their own making by resolving a genuine dilemma in an ethical fashion. The law should not have so oppressive an operation.

Thirdly, because of its operation, the law also places judges and counsel in an invidious position, for no doubt they would not wish to inflict punishment upon people caught in such a position merely for seeking to act honourably.

Fourthly, as I have already observed, there is a ludicrous inconsistency of treatment as between the professions. While one can readily understand—and I would not seek for a moment to dispute—the essentiality of maintaining absolute protection of communications between lawyer and client in court proceedings, the same rationale for protection does not apply to all forms of legal advice. At the moment, and subject to certain exceptions, advice given by a lawyer to a client which does not concern court proceedings—say, for instance, advice in relation to the client’s business affairs—is privileged. It is a little difficult to see why that should be so, and yet advice of a similar kind, provided by an accountant to a client, enjoys no privilege whatever. Nor is it obvious to me that the secrecy of confidential communications between lawyer and client is, whether for reasons of principle or social utility, to be regarded as any more fundamental than communications between, say, doctor and patient or priest and penitent. Arguably—and I appreciate that there are important differences; in particular the fact that there is not an adviser-client relationship between a journalist and a source—the same could be said of the confidences imparted to journalists.

In saying this I do not for a moment ignore the very powerful reasons why courts, whether trying crimes or adjudicating civil disputes, must not be unduly constrained from having available to them all of the relevant evidence. The whole law of evidence is, in a sense, a series of exceptions to one basic rule: that which is probative of a relevant fact should be admitted. But the law does create extensive exceptions to that general rule for a variety of reasons. Some of those reasons are intrinsic to the logic of the forensic process itself, for some facts, which might seem superficially to be of probative significance, might on closer examination be so hazardous as to create a serious risk of the court adjudicating the case on a false or unreliable premise. The rules governing hearsay are an example.

In the case of other rules, though, relevant facts are excluded from evidence for reasons anterior to the forensic process—not because they are not probative but because there is an overwhelming public policy justification for withdrawing otherwise relevant facts from the court, notwithstanding the risk of injustice of a court deciding a case on the basis of incomplete information. The law of privilege is an example of that. For the various reasons I have argued, that part of the law of privilege which deals with professional relationships is inconsistent and in many respects simply wrong.

I believe that the Commonwealth government, in its submission to the ALRC’s review of the rules of evidence, should recommend comprehensive reform to the law of relationship privilege to address the issues which I have raised in this speech. While not wishing to be prescriptive, a good place to start might be to consider the inclusion in Commonwealth law of a provision resembling part 3.10, divisions IA and I B of the New South Wales Evidence Act, which does, for the first time in Australian law, give recognition to a generic category called ‘professional confidential relationship privilege’, and affords some measure of protection to such relationships.

Of course, such protection should not be absolute. Even the very comprehensive rules of legal professional privilege are subject to exceptions. The most obvious is that the relationship will lose its privileged status if the communication is for the purpose of facilitating a crime or fraud. I can imagine other exceptions as well but I do not intend to pursue that matter in the time available to me today. The point remains that the law does need to be reformed to reflect consistency of treatment between professions and between jurisdictions which gives effect to the strong philosophical and policy reasons to respect confidences imparted in the course of professional relationships.

And, finally, as to Mr Harvey and Mr McManus, who today find themselves the victims of the law in its unreformed state, I hope that the wise exercise of prosecutorial discretion will avail to remove them from the invidious position in which, through no fault of their own, they now find themselves.