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Thursday, 14 May 2009
Page: 3908

Mrs BRONWYN BISHOP (1:10 PM) —I rise to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2009 and to add a strong voice, I trust, to the cause that says this bill is an improvement but it does not go far enough. Last month during the break I attended the Inter-Parliamentary Union in Addis Ababa in Ethiopia. It was the 120th assembly of that union. For those who are not familiar with the organisation, it is structured along the lines of the United Nations and its membership is as that of the United Nations, with the exception of the United States, which is contemplating renewing its membership.

An important debate took part in that assembly, which related to the freedom of expression and the right to information. This was a matter dealt with by the third standing committee of the union, and I became a member of the drafting committee and the rapporteur for that committee, both to the committee as a whole and to the assembly. The beginning point for our resolution was to recall that under article 19 of the Universal Declaration of Human Rights of 1948, ‘Everyone has the right to freedom of opinion and expression.’ If that right is to be fully met then the question of a journalist’s freedom to protect their sources and not to be incarcerated as a result of not disclosing them has to be part and parcel of that concept.

The membership of the Inter-Parliamentary Union ranges across many states that are far from the democracy that we are. But, nonetheless, a very strong resolution was accepted, and parts of the resolution are very pertinent to this debate today. Cited among the recitals are these:

Believing that the people’s right to information as well as the generation and dissemination of information are indispensable elements of a functioning democracy and that access to information is an essential tool for strengthening government accountability, transparency and adherence to the rule of law …

Transparency can only be properly exercised and be effective if journalists, who are so often the means of disclosing information which can otherwise remain hidden, can protect their sources. Further in the document we recognise:

… the importance of freedom of expression and access to information in a democratic society for ensuring accountability, checking corrupt practices and enhancing good governance …

We were:

Convinced that the protection of journalists’ sources is an indispensable condition of press freedom …

We considered:

… that education and literacy are crucial to the full enjoyment of access to information rights …

In this country we do have virtually 100 per cent literacy; our people are able to appreciate and have access to freedom of expression. But we also need the right to have information published without the fear of being incarcerated.

In this resolution we said we were aware:

… that people’s right to access information is more relevant today than ever, as modern democracy embraces a wider and more direct concept of accountability …

We said we believed:

… that freedom of expression and access to information are fundamental to a democratic society …

We further said that we encouraged:

… those parliaments that have not already done so to enact freedom of information legislation at the earliest opportunity—

and underscored—

the need for the parliaments of States that already have such a legal framework in place to ensure that it is implemented effectively …

This legislation is important in that concept of effective implementation. That is why the legislation needs to go further.

Whilst the opposition will not impede the second reading in this chamber, I foreshadow that there will be amendments in the Senate. The Senate Standing Committee on Legal and Constitutional Affairs, which investigated this bill, concluded that the Liberal senators have proposed that, as in New Zealand, where there have been confidential communications between a journalist and a source, a court may not order disclosure of those communications unless it can be established that the public interest in the disclosure outweighs both (a) an adverse effect on the source or any other person and (b) the public interest in communication of facts and opinion to the public by news media. This is the test that is favoured by this side of the House. The fact of the matter is that under this legislation, as it stands, journalists who have been imprisoned previously would still be imprisoned; therefore the legislation does not meet the test that we are effectively allowing for freedom of expression.

I go back to the resolution of the 120th Assembly of the Inter-Parliamentary Union. We invited:

… parliaments to take legislative action to protect journalists from being compelled to reveal their sources …

We condemned:

… restrictions imposed on, violence suffered by, victimisation and even assassination of members of parliament, journalists and other opinion shapers in exercising the right of freedom of expression …

We urged:

… parliaments to ensure that only those restrictions on freedom of expression that are absolutely necessary to protect the rights of others and provided for by laws are allowed, and that any regulatory regime operates in this context …

This legislation does not meet the criteria. We recognised:

… that freedom of expression and access to information may need to be restricted in case of war or other serious threat to public security—

but stressed—

that such restrictions ought to be strictly limited in scope and duration by legislation that is proportionate to its purpose and whose implementation is subject to independent judicial oversight …

We called on parliaments:

… to combat arbitrary sanctions by the State on the media, press agencies and their agents …

We urged:

… the media to exercise their freedom of expression judiciously in all circumstances, particularly during armed conflicts, counter-terrorism operations and in other similar situations …

We called on parliaments:

… to ensure that education is compulsory, free and equally available to boys and girls until at least aged 16 and that adult literacy and mastery of new information and communication technologies become widespread practices …

Those were parts of the resolution that were aimed at those countries that do not enjoy a high standard of literacy or, indeed, that prevent girls and women from being educated and also having that access. We in this country are free and we, as men and women, are equal. It is a hugely important thing that we have achieved over a long time, which is precious to us and which we must always maintain. If we want other countries to follow in the way we have developed and to see that freedom enjoyed by women in other countries then we have to, indeed, fulfil our obligation to ensure that when we say that there must be freedom of expression and access to information we do it to the very best that it can be done—and the very best that can be done is not the legislation that is before us.

In rising to speak to the legislation, I do so from my personal commitment to there being privilege for journalists and their sources but also from having taken part in an international forum where I advocated that strongly—that in the public arena there is the need for freedom of access to information, but unless you can express it and publish it and have it known then it is, in a way, being censored. The only remedy for a court to use when a witness refuses to give up their sources is contempt of the court, and the remedy that follows that is imprisonment. We have heard other members cite examples of where journalists have been imprisoned, and that is a blight, I believe, upon us.

I do believe that the provisions of both the UK and New Zealand, particularly New Zealand, offer a better solution. I will quote what the New Zealand Evidence Act says about protection for journalists’ sources. It states:

(1)   If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.

(2)   A Judge of the High Court may order that subsection (1) is not to apply if satisfied by a party to a civil or criminal proceeding that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs—

(a)   any likely adverse effect of the disclosure on the informant or any other person; and

(b)   the public interest in the communication of facts and opinion to the public by the news media and, accordingly, also, in the ability of the news media to access sources of facts.

In other words, the presumption is in favour of the journalist, and that is what is lacking in this bill. There is no question that the public interest is always going to be of concern in these issues, but there has to be an ability for the whistleblower to be confident that, if they give information which they believe is in the public interest to a journalist who will publish it, that source will be protected by the journalist.

The issue of whistleblowers is an equally important question. In my life in this parliament I have on many occasions had people come to me and give me very sensitive information which I have been able to use because of the privilege that is afforded in this place, and I have brought about just outcomes. Plenty of examples can be given where journalists have been able to bring information to the surface and to the public which has resulted in justice being brought about for a particular individual or a circumstance. But the journalist and whistleblower do not have the same protection that someone who may come to me has. I do believe that in an open society—in a democracy such as ours, representatives of which attended that international forum, where there were many countries where, compared to ours, people are oppressed—we have an obligation to do our very best to ensure that that freedom of information and freedom of expression are truly upheld by laws.

So I say to the government that the bill does improve the situation somewhat but not sufficiently. I believe that the opposition senators have drawn good conclusions. I am one—and I will put it on the record— who would and does support the enactment of laws to enable the situation that pertains in New Zealand jurisdictions to apply here. Although the bill is not one that we would wish to reject, it is one that does not yet go far enough.