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Tuesday, 12 June 2007
Page: 55

Mr GRIFFIN (6:03 PM) —I rise today to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2007. I have some brief comments to make on this bill in my role as shadow minister for veterans affairs. Labor support this bill. Our view is that this is a welcome bill but that it does not go far enough. For this reason I am happy to support the amendment moved by the member for Barton.

This bill amends the Evidence Act 1995 by introducing a privilege, at the trial and pre-trial stages of civil or criminal proceedings, for communications made in confidence to journalists. The bill gives the court discretion in this matter, requiring it to exclude evidence where the nature and extent of the likely harm to a protected source outweighs the desirability of the evidence being given. This is an important reform that helps address the conflict that journalists may at times be forced to face. Currently there is a conflict between their ethical and professional duty to not disclose their source and their legal duty to assist the court.

The bill is modelled on the New South Wales Evidence Act 1995. However, there is a big difference in that the New South Wales act allows for a general scheme of protected confidence, while this bill is limited to journalists only. The bill, in focusing on only journalists’ privilege, does not offer any other protections for confidential communications among other groups or professions. Broader reforms are still needed in this area in order for increased transparency of government actions. However, as this government has shown in the past, unless it suits its specific political agenda, it is extremely averse to introducing any reforms that would allow for greater transparency of its actions.

The bill has been introduced by the government following recommendations from the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission in the report entitled Uniform evidence law, which was tabled in this place on 8 February 2006. In their report, under paragraph 15.15, the commissions had the following to say on journalists’ sources:

Since the publication of DP 69, the issue of protection of journalists’ sources has received significant media attention. Under the common law, courts have consistently refused to grant journalists a privilege or lawful excuse under which they can refuse to reveal their sources. The journalists’ code of ethics prohibits a journalist from revealing a source once a commitment to confidentiality has been made. At the time of writing, legal proceedings had commenced against two Herald Sun journalists for protecting the source of leaked government documents regarding changes to veterans entitlements. The Attorney-General of Victoria has indicated his support for a uniform national approach to journalists’ sources. The Australian Government Attorney-General has also announced that the issue would be considered by the Government.

The specific reference made to the two Herald Sun journalists in this paragraph is extremely relevant to the bill we are considering today. The journalists are Michael Harvey and Gerard McManus. They are being prosecuted for contempt of court for refusing to answer questions relating to their publication of material from a source within the Department of Veterans’ Affairs. The case relates to an article they wrote on 20 February 2004 entitled ‘Cabinet’s $500 million rebuff revealed’. In that article they reported on confidential documents that showed that the government had agreed to just five out of the 65 recommendations for change produced by the Clarke review of veterans entitlements. It was an article that exposed this government’s measly response to this report—a response that had been signed off by the Prime Minister, the Treasurer and the then Minister for Veterans’ Affairs. Their article and the public backlash that followed helped to result in some government backflips.

I have every respect for both Michael Harvey and Gerard McManus for breaking this story. This was a story of national significance and one that was extremely important for the veterans community. The public interest in this story was clear. However, for doing their job, these two journalists are now potentially facing a jail term. This bill will, hopefully, help us to ensure that we do not have another situation arise where two highly respected and professional journalists are threatened with jail for breaking a story of significant public interest and choosing on ethical grounds to maintain the confidence of their source. In respect of Gerard McManus and Michael Harvey, I hope this bill sends a clear and unequivocal message to the courts about the Commonwealth parliament’s intention in relation to a privilege being applied to journalists.

It would be remiss of me if I did not say a few words here about the fate of Mr Desmond Kelly, the senior public servant from the Department of Veterans’ Affairs who was alleged to have leaked the confidential material to Harvey and McManus. Mr Kelly was pursued with great zeal by a government that had been fully exposed and rightfully embarrassed by its shameful response to the Clark report. Mr Kelly was suspended without pay and spent two years in courtrooms until he was acquitted by the Supreme Court of Victoria Court of Appeal on 17 October last year. Following his acquittal, Mr Kelly’s pay was reinstated, but he remains suspended from the department. He was informed that the department would still be undertaking a code of conduct investigation. Following this, Mr Kelly decided to terminate his employment with the department in February of this year.

Despite being acquitted by the courts, Mr Kelly has never been paid the money he would have been earning from the Department of Veterans’ Affairs during the two years he spent in court. Instead, he has now resigned from the department. He has been left with no money for those two years and with significant legal bills, all despite being acquitted.

Labor are committed to greater transparency and accountability in government. At the recent national conference, our national platform was amended to include the following:

Labor will:

  • Legislate for proper freedom of information laws that enable Australians to access appropriate information about government activities
  • Move to implement the ALRC recommendations on sedition laws
  • Provide shield laws for protecting confidential sources and whistle blowers
  • Review laws that criminalise reporting of matters of public interest

The last of these obviously relates most directly to the bill we are considering today and the specific case that I have been discussing. I sincerely hope that the passage of this bill will help to ensure that situations such as the one that both Gerard McManus and Michael Harvey face can be avoided in the future. While noting that the bill does not go far enough, I commend the long-overdue reforms contained within this bill to the House and I wish it a speedy passage to the other place.