This bill amends the Evidence Act 1995 to extend genuine protection to confidential communications between journalists and their sources. It is a testament to the Coalition’s commitment to open and accountable government and delivers on our election commitment to press forward this important reform.

This bill has its immediate genesis in the recommendations of the Liberal members of the Senate Legal and Constitutional Affairs Committee in relation to the government’s flawed 2009 bill. That bill, disappointingly, made only piecemeal and incremental changes to the existing regime.

The act currently provides that the court has discretion to direct that evidence that would disclose a confidential communication made to journalist or the identity of the source may be excluded. Such a direction must be made if the court is satisfied that the source might be harmed if the evidence is adduced, and that the harm outweighs the benefit of the evidence being given.

The government’s bill sought to extend the privilege by including possible harm to the journalist’s interests (in addition to those of the source) as a basis of a claim and by making the illegality of the disclosure a factor relevant to the exercise of the discretion rather than an exclusionary factor.

The existing privilege can therefore be described as a guided judicial discretion. Any claim to privilege is a matter to be determined by a judge by the weighing the listed discretionary factors. This has been criticised as providing very little certainty as to whether a disclosure is protected when it is most needed: in advance.

The position in New Zealand and the United Kingdom presumes that the communication between journalist and source is not subject to disclosure unless the party seeking disclosure can establish that the disclosure is necessary. For example, section 68 of the Evidence Act 2006 (NZ) provides that the court may not order disclosure unless it is satisfied that the public interest in the disclosure outweighs any adverse effect on the source or any other person and the public interest in communication of facts and opinion to the public by news media.

From a legal point of view, there is much to recommend a position that offers a higher degree of certainty in advance. This point was made to the committee by the former Solicitor-General, Mr David Bennett QC. This is the position this bill adopts.

Other professional confidential relationships

The Commonwealth and New South Wales evidence acts have departed from uniformity in their treatment of professional confidential relationships. The Commonwealth act confines the definition of a ‘protected confidence’ to a communication made in confidence to a journalist. The New South Wales act defines the same term as arising in the course of a relationship in which the confidant was acting in a professional capacity under an obligation not to disclose the confidence.

The continued restriction of privilege claims is anomalous. This bill therefore adopts the formula in the New South Wales act. Not only does it restore uniformity, but it avoids arbitrarily confining the circumstances in which claims for privilege may be justifiably asserted. As well, it brings this area of the law more closely into uniformity with equity courts’ protection of confidential relationships.

Finally, the bill extends the application of these new privileges to all proceedings in any Australian court for any Commonwealth offences.  Because the Commonwealth does not have a dedicated court of criminal jurisdiction, in nearly all cases the relevant proceedings are brought in state or territory courts.

I would again like to commend the work of the Liberal members of the Legal and Constitutional Affairs Committee, as well as the valuable input we have received from Mr John Hartigan, Chris Merritt, Australia’s Right to Know and many others. The coalition is proud to take a stand in defence of freedom of speech and the protection of communications made in confidence.

I commend the bill to the Senate.