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Thursday, 24 May 2007
Page: 6

Mr RUDDOCK (Attorney-General) (9:16 AM) —I move:

That this bill be now read a second time.

This bill implements an important reform to the Commonwealth Evidence Act 1995 by introducing a privilege that will protect confidential communications between journalists and their sources. This privilege will assist journalists to reconcile their ethical obligations with their legal duty to provide courts with relevant evidence when requested. In applying the privilege, courts will be required to give consideration to the protection of interests including freedom of the press and the public’s right—or need—to know.

There has been significant recent commentary about the need to ensure and maintain freedom of the press. Currently, except in New South Wales, if a court compels a journalist to produce evidence about a confidential source or information provided by that source, there is no legal basis for the journalist to seek to refuse. Yet, journalists also operate under a strict code of ethics which stipulates a clear obligation to keep a source’s confidence.

This conflict between the legal reality and ethical obligation can lead—and indeed has led—to situations where journalists have been forced to choose between protecting their sources or being charged with contempt of court and facing imprisonment.

This bill seeks to achieve a balance by introducing a privilege—at the trial and pre-trial stages of civil and criminal proceedings—for communications made in confidence to journalists.

The proposed privilege is based on recommendations made by the Australian, New South Wales and Victorian law reform commissions in their Uniform Evidence Law report tabled in this place on 8 February 2006. The report proposed a privilege based on New South Wales provisions that have been operating since 1998.

In the interests of achieving a national, uniform approach to this issue the Australian government has accepted the recommended model.

The new privilege will not be absolute. The proposed provisions set out a guided discretion for the court to exclude evidence which would disclose confidential communications made to a journalist who is under an ethical obligation not to disclose that information. The protected information can be information provided to the journalist, information about the source’s identity, or information that would make it possible for that identity to be discovered.

In deciding whether to exclude the evidence, a court will take into account:

  • the nature of the proceedings
  • the importance of the evidence
  • the likely harm to the journalist’s source
  • other means to obtaining the evidence, and
  • the means available to limit the impact of disclosure.

Further, in a modification to the New South Wales model, the court will be required to give greatest weight to the risk of prejudice to national security. This deviation from the model is a justified and necessary update.

The bill also amends the Family Law Act 1975 to ensure that the privilege can be claimed on behalf of a child and that the best interests of the child are paramount when a court is determining whether confidential communications should be disclosed.

While this bill implements a new privilege, there are some recognised situations where it would not be appropriate for it to apply. Accordingly, the bill makes consequential amendments to the Proceeds of Crime Act 2002 and the James Hardie (Investigations and Proceedings) Act 2004 to ensure that the journalists’ privilege does not apply in circumstances where legal professional privilege has already been abrogated for public policy reasons.

Further, the privilege will not apply if the communications between the journalist and his or her source involve misconduct such as furtherance of fraud or another offence.

Protection of journalists and their sources is a national issue. It is important that any approach be a national one. The amendments being introduced today will protect journalists in federal proceedings, but to ensure protection before the other courts, the states and the Northern Territory will need to enact similar legislation. I will be continuing to encourage my state and territory counterparts to introduce similar amendments as expeditiously as possible.

The Standing Committee of Attorneys-General has also been considering a variety of other amendments to the uniform evidence acts. I remain committed to working to achieve model uniform evidence laws as this will be a great outcome for all Australians. It is my hope that I will soon be introducing another bill which will implement more general reforms to the Evidence Act. However, the protection of journalists is too important an issue to wait for the finalisation of that other bill.

This bill represents a significant amendment to the Evidence Act. It will assist the courts to balance the interests of justice in needing to make evidence available with the public interest in ensuring a free press by protecting confidential communications between journalists and their sources.

Debate (on motion by Ms Plibersek) adjourned.