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Thursday, 14 May 2009
Page: 3897


Mr HAWKE (12:20 PM) —I rise today to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2009. I apologise to the group of Young Liberals and ALSF members in my office, who are watching this broadcast, who I had to leave at short notice. I rise today on behalf of the Liberal Party because the Liberal Party is the party of the individual, the party that supports free speech and free-speech measures. Indeed, in this place we will be supporting measures which make progress towards a better free-speech society. This legislation before the House is inadequate in its attempt to deliver a system for journalists which provides a privilege for them and which will be a workable and sustainable model that will deliver the outcomes that the government and, indeed, all of the interest groups in Australia are seeking at the moment. It was interesting to note the points the member for Isaacs was making when he was referring to the coalition as somehow seeking a test of absolute privilege. I want to confirm in the House that we are not seeking a test of absolute privilege; we are simply seeking to implement a system similar to what is already in place in countries like New Zealand and other parts of the world.

The coalition acknowledges that the stated objectives of this bill in its current form fall far short of achieving the objectives which the government has set out. We will be proposing amendments in the Senate. I think there is a problem with the approach of this bill, in that, while it seeks to amend a regime that relies entirely on judicial discretion as to whether privilege attaches to a confidential communication between a journalist and a source, it may well apply in other areas as well. If you do not take the time in your legislation and your mechanisms to define adequately what you are talking about, you will not meet your objectives. And that is one of the problems that we have seen with this proposed legislation. Things such as the definition of a journalist are not adequately defined. Indeed, with all of the mechanisms that are available to people today, especially to younger people—blogs, online communications and all of the facilities and features available on the internet—it is possible to perform the functions of a journalist without necessarily being one. We think there would be a big role in this space for that to be more clearly defined. That would be something that we would need to know in advance of any proceedings.

This issue has arisen over some time. There have been some disturbing cases in recent times in Australia which have disturbed many members in this place and many people in the broader community. The idea that a journalist could be sent to prison simply for refusing to reveal information which does not go to the heart of a national security matter and does not seriously threaten our country’s stability is one most people would reject. There is obviously a need for us to act and move in this space. The law has, I understand from all of the reading that I have done, moved quite slowly in this space, when the world has moved at quite a fast pace. The rate of communication, and the depth and breadth of all the ongoing journalistic activities in today’s world, means that we have to move faster and we have to go further. Here we are today debating a piece of legislation which is an attempt to deal with these very serious issues.

We have seen many cases overseas of journalists who have opted to be prosecuted, fined and jailed rather than to betray their conscience or their ethical undertakings. That is something that I sympathise with. The approach that has been taken in common law is that the facts should be made available, and compelled where there is resistance to that obligation, unless there is some overriding public interest in protecting material from disclosure. That is entirely proper. If there is some overriding public interest, then obviously material may be required to be disclosed. However, the mechanism you use to determine what is in the public interest—all of the communications that happen between journalists and sources, lawyers and clients, which have traditionally been protected—is now something that we need to address and consider so that we can continue to have a robust media and a robust commentary on public life and public activity.

It is a truism that our society has been strengthened by free communication, facts and opinions in the news media, even though we may not always agree with many of the sentiments expressed in the media. While, as an individual member, I have sometimes personally suffered from people using the auspices of free speech to make some erroneous comments and interpretations of events, I can say that I would absolutely stand up in this place to say that they have the right to make some of those claims and certainly to pass comment on them. The laws that relate to the relationship between journalists and sources ought to be balanced. They need to strike a balance in the consideration of the public interest and they need to be weighed up in that context. There could be a public interest, but there is also a right to confidential communication.

We see in other countries some serious attempts to address these issues. In the United States, they have put in place the ‘shield laws’—a new bill which is in the house at the moment, looking to address this issue—and we have seen recent changes made in the United Kingdom and New Zealand. The approach there was to provide some certainty in advance. I think this is an important point, which I will spend some time on. It is always preferable to have certainty in advance for these items. It is a course that has found sympathy in the dissenting report of the Liberal senators of the Senate Standing Committee on Legal and Constitutional Affairs, and I want to refer members of this place to those additional comments by Liberal senators. I think they have made some excellent points about strengthening this legislation, and I know that it will be subject to further amendment in the Senate.

Rather than making piecemeal adjustments to the existing regime, I think it would be better here to take the time and the effort to ensure that we revisit in its entirety the whole concept in the legislation, the test, and provide some certainty in advance. The Media, Entertainment and Arts Alliance pointed out—and I think it is quite true to say—that if you do not do that now, if you do not take the time to go as far as you can now, then you will be left attempting to get together all of the states and federal attorneys-general again. We will be back to this idea that the law has been quite slow to catch up with the reality of modern journalistic communications, and we will find that there will probably not be another opportunity in the near future to make further and better changes.

If you look at the additional comments by senators in the dissenting report, you will see that one of the proposals is that, as in New Zealand, where there have been confidential communications between a journalist and a source, a court may not order disclosure of these communications unless it can be established that the public interest in the disclosure outweighs both any adverse effect on the source, or any other person, and the public interest in communication of facts and opinion to the public by the news media. That is the kind of test that would provide a clearer situation. Obviously that would mean that in advance journalists would be aware and more able to understand their obligations under the law. This would provide less conflict with the ethical and other considerations that a journalist has, and it is where I think we can adapt from another jurisdiction something which has at this point proven to be quite a worthwhile test.

If we seek to be very partisan today in this chamber and pass a law which does not go as far as it ought, and if we do not move as quickly as we can, I feel we will miss a big opportunity which may well have some very real consequences in the near future. Indeed, we have seen more cases in recent times and that trend may well be continuing. If we leave this chamber and we leave the Senate without having thought about these issues and without have gone that extra yard in improving the government’s bill, we may well not be doing the right thing. I believe this test and these comments which have been provided by Liberal senators really would add value to this legislation and provide journalists with the certainty they are seeking. Journalists are certainly seeking the chance to go into arrangements with their sources and confidential communications with a higher degree of certainty than they have now. This certainly would go a long way to helping with that.

When you look at the international shield law regimes—for example, at the time of this report a bill was before the United States Senate—it is important to note that the kinds of requirements that they provide are quite substantial. That is something that I fear in this legislation as well. The concept that you need a stronger test, that you need more definition, is shown to us in these international shield law regimes, and it is something I think we should note. The idea that the member for Isaacs was promoting—that we are seeking some sort of absolute test of privilege—is absolutely wrong. That is not what we are saying. I want to be very clear to the House that we are not seeking some sort of absolute criteria or perfect test. I do not think that there would be a mechanism for anybody here to suggest one. That concept is a furphy to distract us from the idea that we need to have a stronger test in place or, as best we can, to provide some advance certainty.

I do not have more to add in relation to the detail of this legislation. I would simply say that, as a member of parliament who has been elected to this place to represent his constituency, I find that the media play a vital role in our democracy in Australia. They perform an essential function. Without them we would be poorer and our ability to function as a country would be lessened. Even though from time to time we are all quite cynical about the media in this place and we can be quite concerned about the way they cover events, we are all aware that the system will not work without an arbiter, a commentator or a source of dissent not simply from within the parliament but from outside the parliament. Therefore, it is incumbent on us when faced with new challenges—such as new technologies, the fast pace of our society, the ability of journalists to seek and gather information from sources—that we act in a way that provides as much certainty as we can provide in law and that we ensure that the media remains vibrant, healthy and strong within our nation.