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Thursday, 31 May 2007
Page: 76

Mr BROADBENT (2:25 PM) —Today we are debating further protection for journalists and their sources. It has come about, as you have heard from the member for Wills, because of a particular case. The Attorney-General in his second reading speech in the House stated very clearly that it has come from one case. But we as a community, as joint heirs of this nation, look towards our environment and passing onto the future a better world. These freedoms that we are talking about today, including freedom of speech and the public interest, are encompassed by the bill. We need to be as a nation ever vigilant and ever concerned. The fourth estate, the press, has not always made my life comfortable as the representative of an electorate. However, the protection of freedom of the press is a pillar of Australian society that underpins and protects the freedom of the people of this great nation, the Great South Land.

I rise today in support of the Evidence Amendment (Journalists’ Privilege) Bill 2007. The bill demonstrates the government’s commitment to provide professional confidential relationship privilege at the trial and pre-trial stages of proceedings for 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 of the protection of interests including freedom of the press and the public’s right or need to know. As stated in the Attorney-General’s second reading speech:

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.

The Attorney-General went on to say:

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.

Also in that speech, the Attorney said:

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.

He went on to say:

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

Further, the Attorney said:

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.

There were five points the Attorney made:

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.

It needs to be written into this speech.

Further, the privilege will not apply if the communications between the journalist and his or her source involve misconduct such as—

The SPEAKER —Order! It being 2.30 pm, the debate is interrupted in accordance with the resolution agreed to previously. The debate may be resumed at a later hour and the member will have leave to continue speaking when the debate is resumed.