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Thursday, 31 May 2007
Page: 57

Mr McCLELLAND (12:59 PM) —I rise to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2007. The bill represents an attempt at a quick fix to a somewhat complex issue. It moves to provide a form of professional privilege in the Evidence Act 1995 for the purpose of protecting journalists who refuse to name their sources.

There are two main reasons why the bill is being pursued by the government at this point in time: the first is to have regard to advocacy from the recently formed coalition of media interests under the banner of the Australia’s Right to Know campaign; and the second is in response to the case involving Harvey and McManus, both of whom are respected journalists. We would be well familiar with the circumstances that they found themselves in in undertaking their professional duties. I will make comment on these reasons in my concluding remarks, but firstly I will examine the detail of the bill.

The bill is modelled on division 1A of the New South Wales Evidence Act 1995. But there is a difference: on the one hand, the New South Wales act proposes a general scheme of protected confidence; on the other hand, this bill before us, as the title suggests, is more limited in its application. Under the New South Wales provisions the protection of professional privilege is defined with reference to conduct. In this bill the offence is defined exclusively with reference to a class of persons—namely, journalists. While the New South Wales example, for instance, would allow other professions to access the privilege, the definitions in the bill we are debating set up a system of protected confidentiality whereby only journalists may be entitled to privilege if they are communicating in confidence while, firstly, acting in a professional capacity and, secondly, acting under an express or implied obligation not to disclose the contents of the communication.

Proposed section 126B provides the means by which the court may exclude evidence derived from a protected confidence. Evidence may not be adduced where it would disclose a protected confidence, its contents or information regarding a protected identity. An application for exclusion may be initiated by a party or on the presiding officer’s own initiative—that is, at the court’s own discretion.

While those provisions are consistent with the New South Wales template, an important difference occurs with the issue of judicial discretion on when to allow the exclusion of evidence because of the potential harm it could cause to a journalist. Under section 126B(3) the evidence must be excluded when harm would occur to the protected confider if the nature of the harm outweighs the value of the evidence to be adduced. But subsection (4) specifies that the greatest weight must be given by the court to any risk of prejudice to national security. Therefore, the key diversion from the New South Wales template on which this bill is based is the removal of the discretion in the consideration of national security information. That criterion does not appear in the corresponding list of items to be considered in the New South Wales act. This, of course, may be a reflection of the differing responsibilities of our respective levels of government. Nonetheless, there are some overlaps in those national security issues. In short, however, we see that the application of the privilege comes down in large part to judicial discretion.

There has been some comment that judicial discretion is undesirable and that journalists should be afforded some type of absolute privilege by raising the issue. In that context, we would point out that absolute privilege does not apply even for lawyers and certainly not for politicians, priests, doctors or any of the other professions. They are all subject to elements of judicial discretion. Judicial discretion in these matters is not something to be afraid of. Indeed, we think it is something that makes the balancing of the respective and competing interests desirable. The parliament is best placed to provide a framework, but, in constructing rules, we cannot foresee all events and circumstances. That is why we believe these matters are best weighed in each instance on the particular facts of the case at hand.

Proposed section 126C provides for loss of privilege when the journalist consents to the evidence being adduced. Proposed section 126D provides for the loss of privilege in circumstances of misconduct in the form of fraud, a criminal offence or an act which is liable to a civil penalty. If the journalist was involved in such conduct, the court may decide that the privilege is not to be made available.

According to the government, however, the clear intention of the legislation—and obviously that intention will be relevant in the construction of its terms—is to introduce a privilege which provides the court with a guided discretion to balance the competing public interests of freedom of the press and of disclosure of that information. Again, it will be up to the courts to make the decision. In some circumstances, unlawfully receiving national security information is in itself an offence. The court will have to weigh up the value in granting privilege against the value of ensuring that our national security interests are protected.

Proposed section 126E provides that the court may make various orders to protect the safety and welfare of the protected confider, short of refusing the privilege. These include media suppression orders and orders that certain information be heard in-camera—that is, in closed court. We think those measures are appropriate. Proposed section 126F provides that cases that are currently before the court will not enjoy the protection of the section, but a protected confidence which occurs before the act comes into force may be covered. Again, this is probably a sensible approach to adopt in the circumstances. The rest of the proposed bill is in essence of a consequential nature, so I will not take the House’s time to go through the intricacies of those provisions.

Labor’s view on the bill is that it is welcome but insufficient. The Australian Law Reform Commission’s report, Uniform evidence law, No. 102 of 2005, recommended protection for journalists, and appropriately so. I will take a little time to quote from the report’s recommendation. At paragraph 15.15, in respect of journalists’ sources, it says:

Since the publication of DP 69, the issue of protection of journalists’ sources has received significant media attention. Under the common law, courts have consistently refused to grant journalists a privilege or lawful excuse under which they can refuse to reveal their sources. The journalists’ code of ethics prohibits a journalist from revealing a source once a commitment to confidentiality has been made. At the time of writing, legal proceedings had commenced against two Herald Sun journalists for protecting the source of leaked government documents regarding changes to veterans entitlements. The Attorney-General of Victoria has indicated his support for a uniform national approach to journalists’ sources. The Australian Government Attorney-General has also announced that the issue would be considered by the Government.

We recognise, again, the reference in that extract of the report to the Harvey and McManus case and the fact that those journalists are complying with their professional obligation to protect their source in commenting on a legitimate matter of public interest.

At the recent national conference of the Australian Labor Party, the national platform was amended, and it represents a commitment from a future Labor government. It involves four propositions that I wish to put on the record. A future Labor government will, firstly:

Legislate for proper freedom of information laws that enable Australians to access appropriate information about government activities.

Secondly, it will:

Move to implement the ALRC recommendations on sedition laws.

Thirdly, it will:

Provide shield laws for protecting confidential sources and—


whistle blowers.

Finally, it will:

Review laws that criminalise reporting of matters of public interest.

Again, that specifically has regard to the Harvey and McManus case.

And here we come to the heart of the matter. The Howard government is not genuinely committed to bringing about an open or transparent government. It is for this reason that it spends hundreds of thousands of dollars chasing leaks that have not detracted from good governance or national security but have in fact enhanced it. In contrast to its obsession, in many cases, with chasing down leaks is its ability to isolate and insulate itself from information that it does not want to hear. The incidence of those in the government’s history is legion, of course, from the issue of ‘children overboard’ to the more recent one with AWB.

Despite repeated evidence of the government and senior public servants having been made aware of bribes being paid to AWB, the minister claimed not to have received that knowledge. At no stage have we seen the minister attempt to find out why he was not apprised of that knowledge or take disciplinary action against any civil servant for failing to convey that information. Yet, where it is in its political interests, it uses literally millions of dollars to track down perceived leaks that it does not want disclosed. If you like, there is a complete distinction between the government chasing the outlaying of information it perceives as being contrary to its political interests and its unwillingness to track down and find out why it was not given information contrary to the interests of its political survival or indeed the political interests of individual members. This is a fundamental hypocrisy that the government needs to deal with.

Moving to the issue of the two journalists that the Australian Law Reform Commission report referred to, Gerard McManus and Michael Harvey, as I have been at pains to indicate, are two highly respected journalists from both sides of politics. This bill will not help their case—and that needs to be made known—by directly changing the substantive law that applies to their case. It is neither retrospective in that sense nor does it seek to override the Victorian Evidence Act. What it will do is send a message to the courts about the Commonwealth parliament’s clear intention in relation to journalists’ privilege—that is, to recognise its existence. In that sense, I formally declare an empathy that at least our side of parliament has with the cause of those journalists. On that basis, and on the basis that the Attorney-General will revisit this area with further legislation, Labor will support this bill, despite the fact that it is clearly less than ideal to deal with the particular circumstances faced by those journalists.

The Howard government stands condemned that it did not act until this time, and it stands further condemned for the piecemeal nature of reform that this bill represents. It is simply not good enough to blame the states. Some states and territories have whistleblower protection legislation in place; some have professional privilege in place. As Mr Ruddock well knows, there is nothing to stop a parliament legislating within its jurisdictional competence to protect the rights and freedoms of Australians with regard to transparency of government, the free flow of information or any other matter. Be clear that this government is no friend of Australia’s Right to Know and no friend of anyone who desires freedom of information or transparent government.

No other federal government has done more to clamp down on the flow of information out to the public which it considers to be detrimental to its political interests, and no other federal government has done so little to find out why it was not apprised of information of vital importance to our national interest but contrary to its political interests—whether it is the collapsing of government media departments into government ministers’ offices; whether it is in the direction of the Australian Federal Police for the purpose of conducting fruitless but intimidatory raids against the Public Service, indeed at their homes; whether it is the crackdown on whistleblowers like Allan Kessing, who exposed the massive security failures of the Howard government at our airports, despite all its talk of national security since September 11; whether it is the directive to public servants to not answer questions at Senate estimates about the channelling of $300 million to Saddam Hussein, despite the fact that the government relied on the fact that the sanctions regime was not working as a justification for its participation in the invasion of Iraq; whether it is the slack and tardy way that ministers answer questions on notice, if indeed they answer them at all; whether it is the explosion in government entitlements, staffing and blatantly political advertising in order to maximise the benefit of incumbency and the gigantic political machine behind the government; whether it is the abuse of its control in the Senate; whether it is the effective neutering of the Freedom of Information Act and its genuine application and access by Australians seeking information from government. This is a tired and arrogant response that does not stand up in its totality to detailed scrutiny.

Labor will support the bill to send a clear and unambiguous message about the parliament’s attitude with respect to the desirability of preserving and maintaining professional privilege for journalists undertaking their professional responsibilities, but we expect this area to be revisited before the election so that reform to the Evidence Act may be considered more broadly with these matters. I commend the bill to the House. I move a second reading amendment that has been circulated in my name:

That all words after “That” be omitted with a view to substituting the following words:

“whilst not declining to give the bill a second reading, the House regrets that while the bill confers protection in respect of journalists, the bill fails to acknowledge the need for appropriate protection for whistleblowers and other persons who provide information to journalists”.

The DEPUTY SPEAKER (Mr Hatton)—Is the amendment seconded?

Mr Bowen —I second the amendment.