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Thursday, 31 May 2007
Page: 65

Mr MELHAM (1:34 PM) —At the outset, I will say that I rarely comment on a previous speaker’s speech but I think it is important, having followed the member for Barker, to say that there are many things that he has said that I fundamentally disagree with in relation to journalists and his romantic view of them. I do not have a romantic view of journalists. I think the journalistic profession, like every other profession, has the good, the bad, the ugly and the indifferent. But what we need to do is set some standards and principles that we all know are there and that we can all abide by. It is that necessity that brings us to the debate that we are having today.

Quite frankly, I would readily lock up a few of the journalists I know and throw the key away—the same with some of my colleagues—but that is not the way we run our businesses. What is important about the Evidence Amendment (Journalists’ Privilege) Bill 2007, whilst it is disappointing because of its narrow focus—and I will come to that later—is that it enjoys bipartisan support; that is, that the government and the alternative government have finally come to the conclusion that this is a matter that we should legislate on. We are guided in terms of that; we are not guided by political motives. We have got law reform commissions reporting under the Uniform evidence law report and that has been used as a guide.

The legislation before us today is to introduce a privilege to allow journalists facing trial to refuse to disclose the identity of their sources. It amends the Evidence Act 1995, and the bill is long overdue. The Attorney-General, Mr Ruddock, stated at a press conference in November 2005 that the government would introduce such a bill. He said that the government was of the view that:

... reform to evidence laws is necessary in order to ensure confidential sources, including journalists’ sources, are properly protected.

It has been 18 months, but we have now got the legislation. It arises from several cases and the media and legal attention surrounding them. The most quoted is the case involving Herald Sun journalists Gerard McManus and Michael Harvey. They are currently awaiting sentencing on being found guilty of contempt of court.

Their case arises from the publication of a 2005 story stating that the then Minister for Veterans’ Affairs had ignored a recommendation to increase war veterans’ benefits. It was claimed that the original recommendation was for an increase of $650 million and the minister had instead recommended an increase of only $150 million. As an aside, my recollection is that eventually more was given to veterans and the minister subsequently lost her job in a reshuffle after the subsequent election, so there was some good for veterans that came out of the leaking of this story to these journalists. McManus and Harvey refused to reveal the source of the information, and this refusal was prompted by the journalists’ code of ethics. Rule 3 requires the journalist to respect the confidentiality of his or her source of information. Contrary to popular belief, which is perhaps based on the perceptions gleaned from American television, there is no such protection under Commonwealth law. Currently in Australia, courts have an inherent power to punish people for interference in the function and procedure of the court. Courts have the power to compel people to give evidence in court where that evidence is admissible and where the person giving evidence is not protected by privilege.

The most well known examples of privilege include the relationship between legal practitioners and their clients and the privilege associated with self-incrimination. Currently, if a person—including a journalist—is not covered by privilege and refuses to answer a question when required to by the judge then that person may be held in contempt of court. The punishment is a fine or imprisonment. In May 2005 journalists from the Australian published a series of stories apparently based on a leaked customs department report. In March 2007, a former customs department official was found guilty of leaking two highly classified reports to the Australian in May 2005. This case has created a debate over the need for the public to have been made aware of specific claims relating to security at Australian airports, as opposed to the morality of an official leaking information.

Comment has been made that this legislation does not include whistleblower protection. Much of the bill before the House today is modelled on similar New South Wales legislation, so it is disappointing that it does not include whistleblower provisions. The New South Wales system established a stepped disclosure system, and legal protection can be extended to public servants if certain criteria are met. This is obviously in stark contrast to the circumstances in which the Customs whistleblower finds himself.

This case raises the broader issue of freedom of speech, which has been raised consistently since the details of the case first emerged. It has also led to the establishment of a media coalition involving a broad cross-section of media organisations. This coalition is vigorously pursuing the issue of the erosion of press freedom. The international media organisation Reporters Without Borders released rankings earlier this month which showed that Australia has dropped in the rankings for press freedom. According to an AAP report of 2 May, Australia ranks at number 35, just behind Ghana, Greece and Mauritius. Not surprisingly, the United States ranks last at equal 53rd with Botswana, Croatia and Tonga. The United Kingdom ranks at equal 27th.

The issue of freedom of speech is a powerful one which has echoed throughout history. The following comment encapsulates that spirit. I quote from page 717 of the Oxford Dictionary of Quotations revised fourth edition of 1996. The words have traditionally been attributed to Voltaire, but that is incorrect. The dictionary says that the phrase is:

Attributed to Voltaire, the words are in fact S. G. Tallentyre’s summary of his—


attitude towards Helvetius following the burning of the latter’s De l’esprit in 1759; in The Friends of Voltaire (1907) p199. It paraphrases Voltaire’s attitudes at the time.

The comment, which is well known, is:

I disapprove of what you say, but l will defend to the death your right to say it.

These are fine words and neatly summarise the need for freedom of speech.

The bill we are debating today is based on recommendations from the Australian Law Reform Commission report No. 102, the New South Wales Law Reform Commission report No. 112 and the Victorian Law Reform Commission Report of December 2005 entitled Uniform evidence law. These are basically the one report. In respect of the recommendations made in that report, those made in relation to journalists have largely been acted on. Proposed section 126B contains the substance of the bill. It provides that a court may avoid requesting or accepting evidence if it would expose a ‘protected confidence’ or ‘protected identity information’. In deciding whether to protect the information, the court is required to weigh up the harm that would be caused by a confider against the desirability of the evidence being given. There are, however, several qualifications to this discretion. These include: how helpful and important the evidence would be to proceedings; the ‘nature and gravity’ of the offence, defence or cause of action and the subject matter of the proceeding; the availability of other evidence covering the issue; the nature and extent of the harm that could be caused to the confider; the ways in which the court could protect either the confidence itself or the identity of the confider; whether the party wanting to bring in the evidence is a defendant or prosecutor in a criminal case; and whether the evidence has already been disclosed, either by the protected confider or by someone else.

It is worthwhile to read into the record the actual text of the commissions’ recommendations, as there were two which directly affect this legislation. Recommendation 15-1 says that:

The uniform Evidence Acts should be amended to provide for a professional confidential relationship privilege. Such a privilege should be qualified and allow the court to balance the likely harm to the confider if the evidence is adduced and the desirability of the evidence being given.

Recommendation 15-2 states:

If Recommendation 15-1 is adopted, Part 3.10, Division 1A of the Evidence Act 1995 (Cth) should include that in family law proceedings concerning children, the best interests of the child should be a paramount consideration and that, where a child is the protected confider, a representative of the child may make the claim for privilege on behalf of the child.

This particular recommendation has been addressed by amending the Family Law Act 1975 to ensure that privilege can be claimed on behalf of a child.

The commissions also considered the matter of medical privilege. They did not support the inclusion of a medical relationship privilege. The report states, on page 513, that it was considered that the proper protection of confidential medical communications could occur under the confidential relationship privilege. On that basis, the commissions chose not to make a specific recommendation in relation to the matter.

In its haste to introduce this bill, the government has chosen at this stage not to legislate a number of other recommendations of the commissions. I am hoping that, eventually, some of those things will be legislated.

This is a worthwhile report. It shows the value of the commissions to this parliament. I think it is important that parliaments understand that they are not the font of all wisdom. I was a practising lawyer before I came into the parliament. I worked as a solicitor with Legal Aid for over seven years and as a Legal Aid barrister, a public defender, for over a couple. I specialised, for a decade, in defence in the area of criminal law. At the time I was practising, I was across the law. I was across what was happening on the ground. And I was in a position, when I first came into this parliament, I think, to comment on legislation coming through the parliament. But as the last 17 years have gone by, I have had to rely more on my colleagues in the profession and others I know who are current practitioners to, in effect, guide me, not in relation to some of the principles but on some of the finer details of the legislation with which we are dealing.

These law reform commissions are a great guide to this parliament. They follow and enunciate principles that have been established over centuries, unlike the Daily Telegraph or the Herald Sun or the shock jocks whom, unfortunately, our colleagues in state parliaments and even this parliament sometimes listen to and seek to respond to in a legislative way. That is not the way I like to do business. Bad cases make bad law. That is why, in relation to the matter before the parliament today, parliament has been well served by the law reform commissions’ report. And the government has come up with a proper response, and that needs to be acknowledged.

The commissions did consider other matters of uniform evidence law. I do not want to go into detail on them now, but I understand that they will be revisited under a federal Labor government and I would anticipate that they would be revisited by this government and this Attorney should they be re-elected. There is a lot of stuff there that is not necessarily contentious but would be an improvement on the status quo.

At its recent national conference, the Labor Party committed to working towards a broad range of reforms and I think it is worthwhile stating what they are: legislation for proper freedom of information laws to enable Australians to access appropriate information about government activities; moves to implement the Australian Law Reform Commission recommendations on sedition laws; providing shield laws for protecting confidential sources and whistleblowers; and reviewing laws that criminalise the reporting of matters of public interest.

Having said that, can I say that I do not necessarily believe that we should be legislating everything that the press, or the coalition in favour of press freedom, want us to legislate. I do not want my remarks to be interpreted as meaning that those organisations necessarily have my support in everything they wish for. You do, in a number of instances, have to balance certain things.

In some respects, I am quite a conservative when it comes to the press. I think there should be a few more restrictions on the press in relation to some of their reporting, in particular their reporting of court proceedings. We are getting into a situation now where papers like the Daily Telegraph are waging a war—just to increase their readership—against the courts in New South Wales. We had an instance where a particular person, who I will not name, was sentenced, and a whole swag of people provided references in relation to that person and they were traduced in the Daily Telegraph. There is action pending on that matter, as I understand it. It brings the court into disrepute.

We need to recognise that our system of justice, even in relation to journalists, is not perfect. But there are checks and balances. Our state and federal courts have appeal mechanisms so that, if people think they have been poorly treated in a court, either harshly or lightly, there are options for appeal. But the day the Daily Telegraph starts dictating to politicians what the standard should be is the day we should hang our heads in shame. Unfortunately, it carries a lot of influence. It runs particular agendas. But its interest is not necessarily the public interest. As a parliament we need to be very careful and mindful, in relation to important legislation that is currently on the statute books and may come before us on certain matters, to consider this stuff carefully and dispassionately and to be properly advised and not go to the lowest common denominator.

That is where the law reform commissions around the country provide some guidance. I am not saying that we need to accept their recommendations holus-bolus or accept everything that they recommend. That is where we bring our experience to bear. We also bring to bear considerations that others might have in relation to the matter. That is why I am quite happy to support the legislation that is before us today—notwithstanding, as I said at the beginning of my speech, that there are a number in the press gallery for whom I do not have a high regard, on account of the way they conduct themselves. They are not honourable. They do not follow the ethics of their profession. And they are pretty precious. They are quick to put the boot into us but when you challenge them privately about some of their material—I tell you what: I have never met a more precious person in my life than a journalist challenged.

That aside, in relation to journalists’ privilege with proper foundations and a proper basis for claiming it, I think this legislation is long overdue. I am happy to support it.