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Thursday, 31 May 2007
Page: 61


Mr SECKER (1:17 PM) —I see the amendment that has been circulated and, of course, I will not be supporting that. If any member of the opposition is going to come up with an amendment, they should actually give the detail, the words, of what they propose rather than just saying, ‘We might put in some other words.’ I think that most of us would support some defence of whistleblowing, especially when it is in the public interest, but it is very problematic to actually get the words right. To say, ‘We’re going to have an amendment on the basis that we have not gone far enough with the legislation before the House,’ I think, is just another political stunt.

In agreement with the previous speaker, the member for Barton, I think the Harvey-McManus situation has certainly prompted us to see what we can do about future situations. Of course, we hope that this Evidence Amendment (Journalists’ Privilege) Bill 2007 will give a message to the Victorian Supreme Court when it comes to that particular case. Obviously, we as members of the parliament, if we are going to act properly, do not actually interfere in judicial cases—I think that is a very important tenet of government—but I think this legislation will give a very clear feeling of what the parliament now thinks. In fact, in South Australia in the early nineties, if my memory serves me correctly, a journalist was actually jailed, and that raised considerable angst amongst many people. It probably had some influence on my views—a journalist going to jail to protect his source is probably, in the Australian vernacular, a bit over the top. As a result, I am very pleased to speak in this House today about a bill that amends the Evidence Act 1995 in the hope that that sort of situation does not occur again.

This is an amendment bill about giving consideration to the protection of interests, including freedom of the press. We are fully aware of the importance of media in our society—something which seems only likely to increase and improve in coming years. Technology is changing in such a way that consumers can access news online within minutes of any significant event; in fact, they can access it via their telephone. That is the way technology is changing. Today, witnesses to any major event can post their photos or personal accounts to add to a news story almost immediately—as I said, via their mobile phone. Some of the nation’s greatest tragedies have been covered not just by journalists but also by the general public. Media, as we have traditionally known it, is changing.

However, one thing that will not change is the trust that we have in our journalists and between journalists and MPs, for example. Because of this, their importance is not likely to dwindle in the near future. Each night, as we switch on the six o’clock news, we allow their familiar faces into our lounge room to inform us of the daily happenings and events. There is a rapport that has slowly built up over time. I think it is actually quite extraordinary that, if a poll of people out there is taken, MPs and journalists are generally fairly low in order of trustworthiness—almost down there with car salesman—but, of course, we in here know it is quite different. We know that we have to build up trust: journalists need to build up trust with us and we need to build up trust with them.

One of the things about being a member of parliament is that everything you say or do is on the public record. Even if you are just going down to the local shops, it will soon get around if you have said something or been up to some sort of mischief. So we have to be very careful in our lives. I find it extraordinary that there is this general view of people out there in Australia—and I think you would find it worldwide—that politicians are not trustworthy, whereas in fact we all know that the opposite is true.

I do seek to differ from the member for Barton on the issue of leaks and whistleblowing. I believe they are quite different. Of course every opposition loves leaks. They love leaks because they can try to embarrass the government with those leaks. Very often they are not really in the public interest and it is more about playing politics and embarrassing the government of the day, whereas whistleblowing, I think, is a much more serious area of public interest. I think, as I have said before, we must use the right word and find the difference between leaks and whistleblowing. This is problematic. I think the case the member for Barton raised is a genuine case of whistleblowing. But what we could call ‘pest leaks’ to embarrass the government are quite a different matter. They are more about embarrassing the government than genuinely about the public interest—in many cases they are almost a bit of gossip. So, before we bring in legislation on that, we have to give very careful thought to how we treat the difference between whistleblowing and leaks.

A journalist’s role in society is incredibly important. I am sure they would agree with that statement. We have many sitting right here in this chamber with us today who have become members of parliament. I acknowledge the work that journalists do to promote and advise of the business of parliament in a manner suited to our Australian citizens. We may not always agree with what they have written about us because it is given a different slant to that which we would have liked, but the fact is that they do play a very important role in reporting on the events of this parliament—which is, after all, the supreme decision maker for legislation in Australia. However, a journalist’s job is most certainly no easy task, and it has become more challenging as networks grow and the news outlets available to the general public increase in number. There is a need for journalists to access more information and present it faster and more concisely than ever before. Because of this, I believe it is incredibly important that we offer greater legal protection for confidential communications between journalists and their sources where appropriate. I am personally aware of the ethics that most journalists are taught and take it upon themselves to abide by when reporting for the press. Journalists operate under a very strict code of ethics where they are taught to keep a source’s confidence.

As parliamentarians, Mr Deputy Speaker Hatton, we know the importance of developing trust with our local media. I have about 14 newspapers, five radio stations, two television stations and some community radio stations in my electorate. There are often local newsletters as well. It is very important that we have a good rapport with the local media. Many an exchange can be made off the record with a trusted journalist; we know that is where it will stay. Sometimes it is very important that we can be very frank with a journalist who knows that we do not want our name reported because of the possible consequences. That is a normal arrangement between journalists and members of parliament, used on many occasions. We know that that information will stay with that journalist, and vice versa. However, if the journalist were called forward in a court and asked to produce evidence about a confidential source or information provided by that source—which could, at times, be damaging for members of a small community or the like—there is no legal basis for the journalist to seek to refuse.

This important amendment bill will provide a professional, confidential relationship privilege for communications between journalists and their sources. This amendment bill will also assist journalists to reconcile their ethical obligations with their legal duty to provide the courts with relevant evidence when requested. This privilege will exist at the trial and pre-trial stages of civil or criminal proceedings. As I mentioned before, 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 except in New South Wales. This conflict can and has led to situations where journalists have been forced to choose to either protect their source or be charged with contempt of court and face imprisonment. In fact, some have gone to prison. When applying the privilege, courts will also be required to give consideration to the protection of interests including freedom of the press and the public’s right to know.

There are many other examples of confidentiality being protected by law, from discussions between a lawyer and his client in certain circumstances to discussions between a priest and his parishioner. The privilege being put forward here is modelled on the existing professional confidential relationship privilege which can be found in division 1A of part 3.10 of the New South Wales Evidence Act 1995. That has obviously been in law for 12 years, and I think it has worked quite well. It states:

confidential communication means a communication made in such circumstances that, when it was made:

(a)   the person who made it; or

(b)   the person to whom it was made;

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

This New South Wales privilege has been in place since 1998 and was recommended as a model by the Australian, New South Wales and Victorian law reform commissions in their Uniform evidence law report.

In accordance with the NSW legislation, a court must consider the nature of the proceedings, the importance of the evidence, other means of obtaining the evidence and the means available to a court to limit the impact of disclosure. The privilege will not be absolute; the court must give particular weight to any risk of prejudice to national security. My strongest concern has always been that, where national security or terrorism are involved, we have the right to find the source so that we can prevent a possible terrorist attack or risk to our national security. When deciding if a confidential communication should be disclosed, those matters will be taken into account. This will be of consideration when lives may be at risk, when serious crime is known to be committed or when information regarding a terrorist attack is concerned. In my experience journalists would accept that is a fair and reasonable demand of the people of Australia; in fact, I think they probably would ensure that that evidence and source is given to the right authorities. Certainly, in the past I think that has happened, and we would hope that it would happen in the future. It will be a judgement for journalists, but they are generally responsible citizens.

The bill also makes additional amendments to ensure that the professional confidential relationship privilege, under the Evidence Act, the NSW Evidence Act or a similar law of another state or territory, does not apply in James Hardie proceedings under the James Hardie (Investigations and Proceedings) Act 2004 or in examinations and subsequent proceedings under the Proceeds of Crimes Act 2004. The public policy interest in effective enforcement of corporate regulation through the James Hardie proceedings and the confiscation of unlawfully acquired property through the Proceeds of Crime Act justified the elimination of legal professional privilege in these circumstances—and it is not unreasonable to expect the same for journalistic privilege. The privilege will not apply if communications between a journalist and his or her source involve misconduct such as furtherance of fraud or another offence.

The protection of children is of high priority to this government. This amendment bill also amends the Family Law Act 1975. This will ensure that the best interests of the child are eminent when a court is determining whether confidential communications should be disclosed in family law proceedings where children are concerned—I think we can all understand the reasoning for that. In family law proceedings, a child’s interests in the proceedings can, in some cases, be independently represented by a lawyer appointed under division 10, part VII, of that act. For that reason, this bill provides that an independent children’s lawyer, a parent of the child or another person who has responsibility for making decisions about the major long-term issues in relation to the child can make a claim for privilege on behalf of the child. The amendment is on recommendation of the Uniform evidence law report.

Relationships with media, journalists and the public and their sources is extremely important; just ask any journalist—and just ask any member of parliament. They are taught early on to develop, maintain and work with their contacts to ensure a trustworthy and honest relationship. Contacts are integral for any journalist. I know I am a contact for many journalists—perhaps not as many as some others in this House—in my electorate of Barker and I appreciate the relationships we come to develop with these people. From the ordinary shoe store owner to the local councillor or man-about-town, all are important sources in a journalist’s contacts book. But, for journalists to have the confidence to continue to honour the importance of such relationships, they need the greater protection that is afforded by these amendments. The introduction of this bill demonstrates the Australian government’s commitment to providing greater protection of interests such as the freedom of the press and the public’s right to know.