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Tuesday, 12 June 2007
Page: 51

Mrs MIRABELLA (5:43 PM) —I rise to support the Evidence Amendment (Journalists’ Privilege) Bill 2007. This bill amends the Commonwealth Evidence Act 1995 to allow confidential privileges at trial and pre-trial proceedings for communications between a journalist and his or her source. Where appropriate, this legislation allows for much enhanced legal protection of sensitive and confidential communications between members of the journalistic profession and their sources. There is something of a conspicuous omission in the current legislative regime as it impacts on journalists and their communications with sources. As we know from the Attorney’s second reading speech on this matter, the current situation is that—save for New South Wales, which has an existing professional confidential relationship privilege in division 1A of part 3.10 of the New South Wales Evidence Act 1995—if a court compels a journalist to produce evidence about a confidential source or information gained from a source then the journalist has no legal right to refuse. Much commentary in recent times has centred on this pivotal point.

The high-profile case mentioned on both sides of the House in this debate to date and previously, involving two News Ltd journalists, is a startling reminder of the need for reform in this area. We debate this legislation in the context of their current trial, and I pay tribute to Mr Harvey and Mr McManus for the way in which they have approached this matter throughout their trial. As members on both sides of the House have noted, they are journalists of integrity and fine repute. The fact that this cannot be said of all those who go by the title of ‘journalist’ does not diminish the need in any way whatsoever for legislative reform in this area. These two journalists wrote of the government’s alleged rejection of benefits for the veterans community. We know that with the assistance and intervention of the Prime Minister a greatly enhanced veterans package was announced. Fair enough—it was a story of interest to the community.

My colleague the member for Kooyong put it quite well when he wrote in an article in the Age in 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.

 On this occasion, I would have to say that I do agree with the member for Kooyong. It is difficult to accept that two upstanding members of the journalistic profession can be threatened with jail for doing their job, protecting their sources and reporting a story that had no implications for national security. The role of the media in reporting politics and political events at a time of a weak and ineffective opposition is even more important because in those circumstances the media is largely the one available, and able, to hold any government or any other political organisation to account. And that is a very valuable role to play.

Unfortunately, this bill will not assist Harvey and McManus, but we should do whatever we can to ensure that journalists do not have to endure legal coercion to breach their own ethical code and reveal confidential sources. There is an unbridgeable disparity between what is essentially a legal reality and what might loosely be termed as a journalistic ethics register which has produced dispiriting outcomes for those journalists who are serious enough to protect their sources whilst at the same time facing a contempt-of-court charge. Journalistic integrity requires the management of possible ethical dilemmas in day-to-day encounters. For example, there might be a delicate or classified matter with defence or national security implications which needs to be balanced against other countervailing factors like selling copies of a publication and the community’s right to know about a situation, event or scandal.

It can be a very difficult balancing act, indeed. As the preamble to the code of ethics of the American Society of Professional Journalists states:

The duty of the journalist is to further those ends by seeking truth and providing a fair and comprehensive account of events and issues.

This bill strikes a more realistic and acceptable balance between those two competing ideals. It introduces a trial and pre-trial privilege in criminal and civil proceedings for communications that are made confidentially to journalists. These changes stem from recommendations made early last year by the Australian, Victorian and New South Wales law reform commissions. This will allow for greater uniformity between states and territories, an objective we are forever seeking in this great federated nation of ours. All three law reform commissions recommended this amendment, which is in line with the current situation in New South Wales. This very important refinement by the Commonwealth in federal proceedings will ensure greater uniformity, as the protection of members of the journalistic profession and their sources is not an issue that should be defined by state boundaries or borders. Importantly, the Standing Committee on Attorneys-General is looking at further ways to achieve more uniformity in the area of the law of evidence.

Australia’s great democracy rests on the bedrock of three institutional pillars: our parliament, with its tradition of robust debate within the Westminster tradition; a free judiciary; and a free press. The Prime Minister quite rightly called this trilogy:

… the real title deeds of our democracy, a political inheritance that has given us a record of stability and cohesion that is the envy of the world.

Of course, a free, robust and sceptical press is one of this country’s greatest democratic beacons.

We as members of parliament—or, in colloquial terms, as politicians—can recount all the times when we feel that we may have come under unnecessary attack or media bias. My colleague the member for Barker spoke in defence of journalists in a way that many in this place might think romanticised their vocation beyond recognition. The member for Banks promptly disagreed with him. None of us believe that this area of employment is perfect or that any journalist is above criticism. But most of us on both sides of the House agree, at the very least, on a journalist’s ability to protect his or her sources when reporting a story of interest to the community that goes to the heart, I presume, of their passion for their profession. Indeed, we have come a long way since Napoleon’s groundbreaking prognosis:

Four hostile newspapers are more to be feared than a thousand bayonets.

I note from the previous contributions of Labor Party members to the debate that the opposition support the thrust of the legislation and that they have some additional issues and contributions to make. If that is still the case, I welcome that. The significant amendments to the Evidence Act that this bill will achieve go a long way towards enhancing and protecting free press and free speech in Australia. For those reasons, I commend the bill to the House.