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Tuesday, 12 June 2007
Page: 48

Mr KERR (5:28 PM) —I thank the honourable member for McMillan for the sentiments he has expressed. Mr Deputy Speaker, ask him to remain for a moment so that I can explain to him why some of the larger sentiments that he has expressed, which I think would be held by most members of the House, are not given effect by the Evidence Amendment (Journalists’ Privilege) Bill 2007. It is true that this legislation mirrors, to some extent, legislation passed in New South Wales, but its deficiency is that it does not pick up the protections for public interest disclosures that that state has parallel to its legislation, and that means that the principal objectives that the member for McMillan understands the legislation is seeking to achieve will simply not be achieved. I will go through the logic later about why it does not do this, but there are two possible explanations. One is that the government is content to put forward a regime that does not effectively address journalistic reportage and to extend privilege in those instances where it champions the right—in other words, it is a deliberate deception—or that it is an unintended deception of the parliament, the community and the fourth estate that we speak for in this debate.

The reasons for my concern are that the confidential relationship that is protected by this legislation, again in a balancing exercise where the judge has to consider whether the public interest is such that it should be extended in any particular case to a journalist, does not apply where the communication to the journalist was in furtherance of an offence. In almost all instances where a journalist will be the subject of a claim of the nature that we would seek to protect—that is, the publication of a document that has been leaked or provided to them in relation to government conduct—they will be excluded from the operation of this act. The motivating factor for this legislation is said to arise out of the prosecutions of McManus, Harvey and Kelly, who would not be covered in this instance because, clearly, divulging cabinet documentation would be covered by the preclusion of the entitlement of any public servant or any other person holding that documentation to release it to anybody beyond their official duties. The act of disclosure to the journalist would be the commission of an offence under Commonwealth law. Section 126D clearly says that, in that instance, the umbrella that we have intended to shield journalists against the stormy consequences where the law would compel them to testify against their professional ethics or face the possibility of a contempt proceeding or a prosecution would not apply.

I want to draw the attention of the honourable member to this, because he and members of the House may have been misled by it. There is an erroneous statement in the Parliament of Australia’s Department of Parliamentary Service’s brief in relation to this legislation. The law and Bills Digest documentation on the Evidence Amendment (Journalists’ Privilege) Bill 2007 contains a provision on page 10 which says:

It may be significant to note here that proposed ss. 126F(4) contains a provision which would allow the court to extend the privilege to situations which are not directly covered by the provisions in the relevant division. This could presumably mean that, entirely at the Court’s discretion, it could cover situations where some illegality had tainted the communication.

If the honourable member understood that to be the case, I do not suggest that he would be acting from any ill motive, because that plainly is the documentation provided by the Parliamentary Library, and he is entitled to rely on it—but it is wrong. If you go to the second reading speech of the Attorney-General or if you look at the terms of section 126F(4), the language of the provision does not have that effect, and page 5 of the explanatory memorandum, which sets out the materials upon which the court could interpret that provision, says:

Subsection 126F(1) is a transitional provision and provides that the privilege does not apply to proceedings if the hearing began before commencement of the new Division 1A. However, subsection 126F(2) provides that the privilege applies to confidences made before or after the commencement of Division 1A.

Subsection 126F(4) provides that the professional confidential relationship privilege is not affected by, and does not affect, claims for any other privilege under Part 3.10 of the Evidence Act.

That is fine. That means that a journalist can rely on any of the other provisions in part 3.10 of the Evidence Act, but none is material to this. In those very circumstances where journalists are going to be exposed by acting in the public interest to disclose wrongful conduct by government, this shield does not apply. We have the smokescreen that says the government has been so responsive to the circumstances facing journalists who are now facing trial—McManus, Harvey, and Kelly—that it has brought before this parliament legislation that would have no consequence whatsoever in relation to those journalists. In fact, there is a risk that a judge addressing this might say, ‘The parliament has considered this matter in terms which expressly excluded the intended privilege to the circumstances of McManus, Harvey and Kelly.’ The judge might say that that shows that parliament intended that they face the consequences that they currently face.

I think that is a very real prospect, because this legislation does not cover those circumstances which the honourable member for McMillan—for perfectly understandable reasons—understood it to cover. It does not do it. And, of course, it would certainly not cover circumstances such as those of Chulove, Porter and Kessling. Kessling is the poor public servant currently facing imprisonment because of the disclosure of a matter that ultimately compelled this government to review security at airports and the like and prompted a massive address by serious intelligence personnel from outside Australia. It also prompted a large investment to upgrade and upscale the security weaknesses that had been put out into the public arena, which no doubt would not have been addressed but for that disclosure. In that instance, Chulove was not called as a witness, but had he been called and been requested under subpoena to provide the source of his information and had he refused, that refusal would not have been covered because, again, the divulgence of that information to that journalist would have been an offence under Commonwealth law.

So, in the very area of public policy that this legislation is supposedly intended to cover, it fails to do the trick. I do not know whether this is a deliberate smokescreen, an act of malice, to con those who are concerned about this—as the honourable member for McMillan plainly is and as so many of our colleagues in this House and in the fourth estate are—that there will be an effective regime that enables judges to apply discretionary considerations in relation to disclosures of that kind, or whether it is simply that the government itself does not understand what it has done. I suspect the latter is improbable. I suspect the minister is well advised and understands well what he has done—and hopes to skinny through with this. Without the parallel legislation that is in New South Wales that protects public interest disclosures, those disclosures remain criminal offences under Commonwealth law and are thereby taken out of the umbrella for this protection. The protection will apply only in a very limited area. It will apply, for example, where a person is given information by a criminal about some matter or other and will not disclose the criminal’s identity. But it will not apply where we think it is intended to apply—that is, where a journalist discloses some act of wrongful conduct by government. The very release of that information from the source within government to the journalist would be a breach of a Commonwealth law and therefore would be caught by the provisions of section 126D, which says that there is then a loss of the confidential relationship privilege in relation to that matter. And the division does not prevent the educing of evidence in those circumstances.

I do not want to take a long time to speak—I am due to chair the Main Committee and have no doubt overstayed my welcome—but I did want to make those very strong points. The second reading amendment moved by the shadow minister is of substance. I think that those in this House who are concerned about journalistic privilege—as is, I am certain, the member for McMillan, for whom I have the highest regard, and others making contributions in this House—actually believe that this legislation does the job. It does not. It does not do the job they understand it to do. There has been a fudging and an incorrect illusion allowed to run out there to the media and to other organisations that are concerned about this that the government has picked up concerns about protection of journalists in those circumstances that are currently faced by journalists such as McManus and Harvey. If after the passage of this legislation McManus and Harvey were in exactly the same position, they would not have the protection of it because it simply does not apply to them in those circumstances.

I think it is pretty important that we realise that this legislation does give some journalists some protections but not in areas where the concern originated from, and it does not cover those instances which the honourable member for McMillan has properly highlighted, where journalists are doing their largest public duty; that is, revealing the scandals we do not wish to be revealed. Journalists do many public duties, but their largest public duty is speaking the truth about matters which governments do not wish to be revealed. That is precisely where this legislation is deficient and precisely why the criticisms made of it by those who have examined it closely—and I do not wish to take members through the range of those who have articulated such criticisms—are well founded. I thank the honourable member for McMillan. I understand his passion about this matter—I share it; I think most members of this House do—but my regret is that, in giving lip-service to that passion, the government has failed to act consistently with it.