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Thursday, 14 May 2009
Page: 3904

Mr PERRETT (12:55 PM) —I am pleased to speak in support of the Evidence Amendment (Journalists’ Privilege) Bill 2009. This bill amends the Evidence Act 1995 to provide greater protection for journalists and their sources. This is obviously difficult ground, as we heard in the speech of the member for Lyne.

When I think of what a journalist is, it is easy to think of the Washington Post reporters Bob Woodward and Carl Bernstein and how they exposed the Watergate affair—those sorts of journalists with resources at their beck and call and the time to do investigative journalism. I think of Chris Masters, from Queensland, and his expose ‘The Moonlight State’, an episode of Four Corners—someone who obviously had fine ethics and had resources and the time to track down sources. I think of people like Laurie Oakes, Lenore Taylor, Annabel Crabb, Paul Syvret, Kathleen Noonan and Dennis Atkins, to name but a few of the journalists whose articles I particularly look forward to reading. I know that their work has been researched and considered and they have some resources behind them. As I said, I am just naming a couple. Obviously, all the journalists at AAP would be similarly inclined.

But journalism is changing. It has changed since the days of Washington Post reporters having an editor who could support them through an arduous investigative process. Now we have newspapers whose revenues have declined. We have a younger generation who have a different approach to how they gather their information—in terms of television and the web, iPhones and the like. We now have people who are one step away from being a blogger in their lounge room who are also taking the guise of journalists. So, when we talk about Bob Woodward or Carl Bernstein, or Laurie Oakes or Chris Masters, we can talk about their journalistic ethics and what they would consider appropriate to print. However, I think the definition of ‘journalist’ is going to change significantly over the next few years.

We had that unfortunate situation just the other day when John Cobb, the member for Calare, clearly stated that he had some information that he did not know to be true—he did not know whether it was true or not—yet he was happy to talk to the media about it. So the story takes off and has a life of its own, even though, as I said, he had no knowledge one way or the other as to whether it was true. It certainly sounded fanciful.

So, in terms of that continuum of what a journalist is, I am very, very comfortable with providing protection to journalists such as Woodward, Bernstein and crew, but, if there is a blogger in their backyard saying, ‘I heard this half of a rumour on the internet and I therefore need protection for it,’ that is where it could be more problematic.

But, leaving that aside, most good journalists have always been able to balance the tension between their ideals of a free press and the public interest while upholding their professional code of ethics by protecting their sources who provide information on a confidential basis. I just hope that the Woodward-Bernstein type journalist is more likely to use this protection than some blogger who has an axe to grind or who is not particularly interested in preserving the truth.

In other professions the boundaries between privacy and discretion are clear-cut. In this House we are very fortunate as politicians; we know that what we say is privileged—or certainly for most of the time we know that what we say is privileged while parliament is in operation. I have heard some comments hurled across the chamber during divisions that would perhaps get us into trouble if they were spoken outside Parliament House. Why do we have this privilege as politicians? It helps to ensure that there is a healthy democracy. Personally, I hope that there is never anything I say inside this chamber that I would not gladly repeat outside the chamber—but that is me.

Obviously there are other people who have protection, such as patients, who know that their health records are confidential, something between them and their doctor. This is very important because it helps to save lives and make sure that people always tell the truth when talking to their doctor. Also, a client knows that what they share with their lawyer is protected. This protects the adversarial system of justice that we have in Australia. Occasionally there are hiccups. That might seem bizarre but, for the greater good, legal professional privilege must be preserved and protected. You do not have to be a lawyer to understand why that must occur.

A healthy democracy relies on the ability of journalists to hold government and government institutions to account, and sometimes this can only be done with the help of sources who, for whatever reason, choose to remain anonymous. I know that there are people in the corridors of this House who are happy to talk to journalists off the record. It is not my particular practice. In fact I was quoted anonymously in a paper the other day and I made a point of contacting the journalist to say that I do not give things off the record, that I am happy to be quoted. He clarified that by saying that his subeditor had removed my reference because they wanted it to appear anonymous. Obviously in Canberra we do run into journalists in all sorts of places and, hopefully, there is nothing that I would say that would be problematic. Maybe if a politician were as drunk as 50 cats down at the Holy Grail I could understand why they might want some protection, but a healthy democracy means that we let journalists protect their sources on occasion.

If sources cannot speak to journalists with confidence that their identity will be protected, then whistleblowers will be significantly less likely to expose wrongdoing. We have seen so many examples of this. I have heard testimony from Toni Hoffman, from the Bundaberg hospital, and from Hedley Thomas, a journalist at the Courier-Mail, about this and how on occasions such whistleblowing can save lives. Being part of the House of Representatives Standing Committee on Legal and Constitutional Affairs, I heard so many people in the whistleblowing investigation give great evidence about the importance of this.

In Australia most of our journalists hold firmly to their code of ethics. Among the 12 clauses the code states that journalists:

Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source.

So clause 3 says that a journalist’s aim is to attribute information to its source, and I hope that all journalists remember that. I am sure that they have a copy of their code of ethics in their back pocket at all times. The code continues:

Where confidences are accepted, respect them in all circumstances.

This is from the Media Alliance Code of Ethics, No. 3.

In their submission to the Senate Standing Committee on Legal and Constitutional Affairs inquiry into this bill, Australia’s Right to Know coalition, which is a coalition of major Australian news organisations including News Ltd, Fairfax, ABC, AAP, Sky News and the Media, Entertainment and Arts Alliance, all very honourable and reputable entities—and I would like the press gallery to know that—said:

Keeping a source confidential is fundamental to the ability of journalists to maintain trust with their sources and to encourage other sources to trust journalists and bring forward information of public concern.

Therefore it is in the public interest for journalists to maintain a circle of trust and to ensure that sources who seek anonymity for genuine reasons—and, as I said, they attribute the information whenever they can—can have confidence that they are protected.

During the last 20 years nine Australian journalists in six separate cases have been convicted or jailed for not revealing their sources. Tony Barrass, from the Sunday Times in Perth, was imprisoned for 10 days and fined $10,000 in 1989 for refusing to disclose a confidential source. It was a significant amount of money and significant jail time as well. Gerard Budd, from the Courier-Mail, Brisbane’s No. 1 selling paper, was imprisoned for 14 days. Deborah Cornwall, from the Sydney Morning Herald, was given a suspended jail sentence. Chris Nicholls, from the ABC, received a prison sentence for his story relating to a conflict of interest of a South Australian government minister. Belinda Tasker, Anne Lampe and Kate Askey, from AAP and the Sydney Morning Herald, refused to reveal their sources but avoided jail after the NRMA board dropped their case. These are very significant circumstances.

Most recently we had the Herald Sun journalists Michael Harvey and Gerard McManus convicted of contempt of court and fined $7,000 each for refusing to reveal the source of a story about a federal government plan to cut war veterans’ benefits. As a result of the story, a public servant, Desmond Patrick Kelly, was charged under the Commonwealth Crimes Act for leaking confidential information. Kelly was convicted in the Victorian County Court, a decision later overturned by the Victorian Supreme Court. In Kelly’s trial, Michael Harvey and Gerard McManus held up their professional code of ethics and refused to reveal their sources or give evidence in Kelly’s trial, and they were consequently charged with contempt of court—brave stuff indeed! In response to this case, the Howard government introduced the Evidence Amendment (Journalists’ Privilege) Bill 2007 to provide some protection to journalists in civil and criminal proceedings of a federal or ACT court for communications made in confidence to journalists.

Under this legislation, the court must rule out evidence that would harm a confidential source and where that harm outweighs the usefulness of the evidence. The open and honest Rudd Labor government believes that this law does not go far enough and does not provide adequate protection to journalists and their sources. Obviously, having somebody like Senator the Hon. John Faulkner in cabinet is great for the Australian pursuit of freedom of information and an open government. He has been a terrier on these particular matters. A major flaw of the current law is that the court can compel the journalist to disclose a confidential source where it believes that the communication to the journalist was an offence, such as a public servant’s disclosure of information obtained in the course of official duties.

Unfortunately, Australia has fallen behind most Western democracies on this issue. Journalists in New Zealand, the United Kingdom and the United States, for example, are protected by law from revealing their sources in almost all circumstances, the exception being, obviously, in cases of national security.

The bill before the House will improve the privilege for journalists who receive information confidentially. It will require the court to consider not only the harm that might be caused to the source but also the possible or likely harm that could be caused to the journalist if the source were to be revealed. Under this bill, the court should still consider national security; however, the requirement that it be given the greatest weight is removed. The bill also overturns the requirement for journalists to disclose a confidential source where the court believes that the communication to the journalist was an offence. If the court believes the source was involved in misconduct in disclosing confidential information to the journalist, it will take it into account but it will not automatically rule out granting privilege on this basis.

This bill is about balance. It directs the court to weigh up the public interest in the administration of justice versus the public having access to the facts through the media. As many of the earlier speakers have stated, this is the right balance in a healthy democracy. While this bill offers greater protection to journalists, the primary purpose of this legislation is about ensuring greater accountability and increased transparency in government. There are high expectations that journalists will report the news in the public interest, honestly and ethically. However, reasonable protections must be in place to ensure they are not bullied by the courts into disclosing confidential sources. This legislation provides flexibility for the court to take into account all relevant factors, including harm to the source or the journalist, national security and misconduct in the disclosure of information. These factors must be weighed against the public interest.

Finally, I hope this bill will pave the way for similar legislation across all jurisdictions to ensure greater uniformity and certainty for journalist shield laws. I commend the bill to the House.