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Thursday, 31 May 2007
Page: 69


Mr GEORGIOU (1:52 PM) —It is a pleasure to follow such erudite speakers as the members for Barton, Barker and Banks. I endorse the comments of the member for Banks about the significant contribution the Australian Law Reform Commission makes to this parliament’s deliberations. I would also like to dissociate myself from his rather cruel comments about the member for Barker romanticising journalists—if you are going to romanticise anyone in such a cynical world, why not journalists!

This legislation constitutes an important reform in a proposed package of general reforms to the Evidence Act 1995. This is a large project and, to a degree, it depends on state agreement. Progress has been slow but, despite this, I welcome the government’s decision to proceed separately with this amendment and introduce this bill to protect journalists.

The Evidence Amendment (Journalists’ Privilege) Bill 2007 responds to concerns that the current legislation compromises some central components of a democratic society: freedom of expression and a free press. In August 2005, I wrote an article in the Age—of all places—in which I responded to the Harvey and McManus case. Harvey and McManus are Herald Sun journalists. The position I took then was:

In a healthy democracy, it is hard to believe that a journalist might be imprisoned for accurately reporting a story of significant public interest that poses no threat to national security.

And yet we are faced with the prospect of contempt of court and the jailing of two journalists—

for the reporting of matters of public importance.

A lot has been said about the quality of journalists. Harvey and McManus are responsible and highly respected journalists. But we also need to protect the freedom of expression of journalists who are less responsible and less highly regarded, because, to a significant degree, freedom of the press underpins our society. In the case of Harvey and McManus, their offence was their refusal to disclose sources that assisted them in reporting on cuts in benefits for war veterans. The two journalists revealed the government’s rejection of the recommendations of an independent inquiry improving a whole range of benefits for war veterans. Ultimately, the intervention of the Prime Minister and a number of coalition members saw a more generous veterans’ package emerge. Nonetheless, the issue was one of public interest, which Australians do expect their media to report on. This case highlights the fact that Australia does not provide the guarantees that are essential for the media to serve as an effective watchdog. As I said in August 2005:

No one is above the law. But if Harvey and McManus are punished for protecting their sources then the law is a bad one.

The proper place to remedy such laws is the Parliament.

So I am pleased to be able to speak in the parliament today on a proposed remedy.

The Evidence Amendment (Journalists’ Privilege) Bill 2007 is the result of recommendations made by the ALRC after the Attorney-General asked the commission to examine the operation of the Evidence Act 1995. Over 18 months, the ALRC worked closely with the New South Wales Law Reform Commission and the Victorian Law Reform Commission, both of which were conducting similar inquiries. This bill will give effect to some of the recommendations made by the law reform commissions in the Uniform evidence law report. As I said, in a healthy democracy it is hard to believe that a journalist might be imprisoned for accurately reporting a story of significant public interest that poses no risk to national security. And yet this is the very situation faced by journalists in this country. In Australia, journalists can be punished with contempt of court charges and, ultimately, jailed for upholding their ethical obligation not to disclose confidential communications made to them in their professional capacity.

It is not always a matter of taking things to an ultimate. Jail is very hard, but other sanctions can be applied, such as the recording of a conviction, which can impact on a journalist’s capacity to earn a livelihood and to execute their profession. Currently, if the court compels a journalist to reveal the identity of a confidential source, the journalist has no legal basis on which to refuse. The consequences of such a situation have been driven home to Australians over the last 15 or so years. As a result of standing by the journalists’ code of ethics to protect confidential sources in all circumstances, several Australian journalists have found themselves facing contempt of court charges. Tony Barrass, a senior journalist with the West Australian, was sentenced to a jail term and fined $10,000 for refusing to reveal a source in the Australian Taxation Office. That is one notable example, and Harvey and McManus is another. I believe it is wrong that journalists can legally be coerced to breach their ethical code and reveal their sources.

The current tensions between the ethical and legal obligations of journalists jeopardise the freedom of the press and the public’s right to be informed. This bill seeks to address this tension and introduce a new professional confidential relationship privilege. It applies to communications and records made in confidence to journalists acting in a professional capacity. Such legislation would put Australia broadly in step—I emphasise ‘broadly’—with many European countries and American states which have legislated so-called shield laws. These shield laws are designed to create public interest frameworks to protect journalists and their sources. Under common law, only communications made in a relationship between a lawyer and a client are protected from disclosure in court—and it is good to see that the legal profession is looking after itself traditionally and effectively. As a result, courts have refused journalists a justification for declining to reveal their sources. In its examination of the evidence laws, the ALRC has determined that there are a number of social relationships where a public interest could be established in maintaining confidentiality. One of these relationships is that between a journalist and their source.

The insertion of a new division 1A into part 3.10 of the Evidence Act amends the law to recognise a new professional privilege for journalists. I have to emphasise that it is limited to information given in confidence to journalists acting in their professional capacity. Again, it is important to underscore that this amendment does not give unqualified universal privilege to journalists and their sources. What it does is to set out a guided discretion allowing the courts to weigh the probative value of the evidence in the proceedings and the nature of the offence against likely harm to the protected confider in adducing the evidence. The court will also be asked to deliberate whether the public interest is best served by directing disclosure of the evidence or through the preservation of the confidence privileged to the journalist. I regard it as being implicit—and it possibly should be explicit—that the notion of it being in the public interest to protect freedom of the press and the public’s right to know is something that governments may care to incorporate in this act in future.

The court will be required to give the greatest weight to risks to national security—that is, Australia’s defence, security, international relations or law enforcement interests. Proposed subsections (1) to (4) of proposed section 126B provide the circumstances for the exclusion of evidence of protected confidences. These amendments may allow the court to direct that evidence not be adduced if doing so would reveal the identity of the confider or if that identity could be ascertained through the disclosure of information contained in the evidence. In addition, it is important to note that these amendments allow that the court may give such a direction upon the request of the confider or the confidant or, alternatively, at the court’s own discretion. The court must further direct that the evidence not be adduced if it is satisfied that harm would likely be caused to the protected confider if the evidence is adduced and where the nature of that harm outweighs the probative value of the evidence.

Proposed section 126B(4) requires the court to take into account a number of matters of importance. These include the importance of the evidence to the proceedings, the nature and gravity of the offences and the nature of the subject matter of the proceedings, the likelihood of harm that would be caused to the protected confider if their identity were to be revealed and the availability of obtaining other evidence related to the information disclosed by the protected confidence. While the court must consider the matters listed in proposed section 126B, it will not be limited to these matters. This expands the discretionary powers of the court, with the intention of providing further protection to journalists and their sources. Proposed division 1A of part 3.10 also instructs the court to state its reasons for giving or refusing to give a direction regarding the adducing of evidence. I believe that this enhances the transparency of the proceedings, and I think that this is important.

The bill does not create a true privilege. It is based on the premise that such a privilege would be inappropriate in certain circumstances which justify the loss of the professional confidential relationship privilege. For example, the bill states that confidences should not be protected where the communication was made, or the contents of a document prepared, in the furtherance of the commission of a fraud or other serious criminal offence or when an offence or the commission of an act renders a person liable to a civil penalty. If the court determines that one of these circumstances applies then the court can direct a witness to answer the relevant question. The proposed division also allows that the court may make orders to limit the extent of possible harm to be caused by the disclosure of protected information by ordering that part or all of the evidence may be heard in camera or by making suppression orders.

The Evidence Amendment (Journalists’ Privilege) Bill also makes consequential amendments to three further bills. There is a new subsection in the Family Law Act 1975 which provides for the circumstances where a child is the protected confider. This amendment provides that the best interests of the child should be a paramount consideration when the court is determining whether or not to direct that confidential information be disclosed. Also inserted into the Family Law Act is an instruction as to who may make the claim of privilege on behalf of the child.

The bill also makes changes to the James Hardie (Investigations and Proceedings) Act 2004 and the Proceeds of Crime Act 2002. These amendments provide that the privilege does not apply in situations where legal professional privilege has already been abrogated.

The disclosure of sources is sometimes uncomfortable for all of us—governments and oppositions alike—but the protection of sources is fundamental to the media’s ability to freely inform the public on matters of public interest. The fourth estate, dare I say it, is not perfect, but the discomfort it not infrequently causes politicians has the critical role of holding governments and oppositions accountable through the free availability of information provided to the public and through open debate. The protection of confidential information revealed to a journalist acting in their professional capacity is fundamental to this. Without such protection, the public’s right to know is compromised and the essential flow of information is disrupted. The fact is that, if there is no protection, people may be deterred from sharing significant information with journalists and hence the public at large.

I stand before the House today holding the same firm belief that I recorded in print two years ago—that is, it is bad law which allows for journalists to be intimidated and even compelled to breach their ethical code where it is actually in the public interest that the confidentiality agreement between journalists and their confiders be preserved. This bill goes some way towards protecting this, especially in cases which have no bearing on national security or any other vital overriding public interest. It does not go as far as some would like. The bill will only protect journalists in federal proceedings. It does not provide a non-discretionary shield for journalists, which is defined by statute. It leaves it to the discretion of judges, but I have more respect for the discretion of judges than that of a number of other people. But the bottom line is that it takes us another step in the right direction towards protecting the freedom of the press in Australia. I commend the bill to the House.