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Thursday, 14 May 2009
Page: 3911

Ms JACKSON (1:25 PM) —I rise to speak in favour of the Evidence Amendment (Journalists’ Privilege) Bill 2009. I am pleased to do so because this bill will not only strengthen the protection of journalists and their confidential sources but also ultimately enhance the transparency and accountability of government by recognising the public interest in the communication of facts and opinion to the public by the media. There is currently provision in the Evidence Act 1995 for a journalist to refuse to give evidence to a court on the basis that it would disclose information obtained through a professional confidential relationship. However, the provision has been rightly criticised for its narrowness in a number of respects. It was interesting to listen to the comments of the member for Mackellar, who said that she believed that in this area the best that can be done should be done, when she was a member of a government that for 11½ years did far less than that. This provision was a product of Howard government legislation.

With this bill the government delivers on its election commitment to strengthen journalist shield laws, as the provisions are known. These amendments are not made to give journalists some special protection but, as I said, to enhance the transparency and accountability of government. These amendments strengthen a vital component of our democratic system: the community’s ability to access information which is in the public interest. This government recognises the importance of the role played by the media in the communication of facts and opinion to the public. Through this bill the government seeks to ensure that the court has the discretion to consider and balance the relevant facts of a particular case before deciding whether to grant privilege to a journalist.

In the main, in Australia we have had a fine history of professional journalism. As a Western Australian I would like to mention one particular example that comes to mind: Catherine Martin, a journalist with the West Australian. Catherine Martin was an exceptional investigative journalist who was credited with uncovering the disastrous impact of asbestos mining and the subsequent diseases of asbestosis and mesothelioma in the residents of Wittenoom in the north-west of Western Australia, where blue asbestos was mined until the 1960s. By bringing this tragedy to the attention of the public, Ms Martin deserves some of the credit for subsequent actions that have been taken to address CSR and, indeed, perhaps some of the credit for the decision to set up a fund to assist people affected by asbestos from the mine.

Ms Martin’s achievements were recognised with four Walkley awards during her career, including the inaugural Gold Walkley for the Wittenoom asbestosis articles. In 1982 she was made a member of the Order of the British Empire for her services to journalism. Ms Martin lived in Western Australia for most of her professional life—indeed, for most of her life—and only passed away in April this year, aged 90. As many commentators noted in obituaries, she died in the week that Justice Ian Gzell in the New South Wales Supreme Court found the company James Hardie guilty of misleading conduct and failure to meet its obligations over its handling of asbestos compensation. She was truly a magnificent journalist, and I am pleased that legislation such as that we are considering today will be available to protect people such as her.

Journalists in Australia are represented by the Media, Entertainment and Arts Alliance, who have adopted the fabulous by-line, ‘The people who inform and entertain Australia.’ MEAA, as they are commonly known, have established a code of ethics to which their member journalists adhere. Point 3 of the Media, Entertainment and Arts Alliance code of ethics reads:

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. Where confidences are accepted, respect them in all circumstances.

The code does not provide for the ability to opt out of this mandate when compelled by law to do so. When circumstances cause the journalists’ code of ethics to clash with the rule of law there is a great deal of interest from the media. We have had some examples of that in Western Australia. The member for Moreton may have mentioned the situation of Tony Barrass, who was imprisoned. In 1989, Western Australian journalist Tony Barrass was called upon as a witness to identify a source of information. When he refused the magistrate imprisoned him for five days. Interestingly, Mr Barrass claims his incarceration was a positive career move because of both the contacts he made in prison and the credibility that he gained with future potential sources. That is one example.

We must also be mindful of the extent to which the media is vulnerable to manipulation. We need to look no further than the notorious ‘children overboard’ affair for an example. At the time, many people were concerned that a group of asylum seekers attempting to enter Australia by boat had thrown their own children into the water to force the hand of our border patrols. However, it eventually became clear that inaccurate information and misinterpreted photos were strategically released and used to whip the media, and consequently the voting public, into hysterical support for hardline immigration policies.

There are two main points that I would like to draw from those examples and that of Catherine Martin. The first is that the nature and extent of likely harm to the journalist who discloses a source is fundamental. A responsible journalist who can inspire trust from a source and who has the integrity to recognise when information should be made public deserves the protection of our courts, just as the source deserves our protection. But, conversely, the danger of granting blanket freedom to publish without attribution or accountability is just as fundamental. I am confident that this legislation gets the balance right for the benefit of the public interest in transparency and accountability.

I note that the Law Reform Commission report on the operation of the uniform evidence acts, tabled in 2006, recommended that a professional confidential relationship privilege be included but that it be a qualified privilege, allowing the court to balance the competing interests at stake. A critical feature of the legislation criticised by some in this House but preserved in this bill is that the onus of establishing privilege rests with the person claiming it. In this sense, it stops short of being a true or unfettered privilege, although it should be noted that the court also has the power to grant privilege on its own motion. This legislation guides the courts in the discretionary decision to confer privilege.

This is in contrast to legislation in some other countries, such as New Zealand and the United Kingdom, where journalists have a rebuttable presumption of privilege. Such contrast has given rise to criticism that this bill does not go far enough. However, it must be remembered that these amendments are not primarily about protecting journalists; they are about ensuring that the community is able to access public interest information. This is integral to the sound operation of our democratic system. While this bill will encourage greater accountability, blanket privilege may open the door to a loss of accountability on the part of those reporting unattributed facts and opinions to the general public. The wonderful and unique ABC Media Watch program has given us ample examples of that over the years.

This bill gives the court flexibility to decide whether the privilege should apply after it has considered all the relevant circumstances. Importantly, the bill requires the court in making its decision to consider the nature and extent of likely harm not just to the confider but to the confidant—that is, the journalist. The court will also be required to consider likely harm to journalism as a profession by virtue of a new requirement that the public interest in the administration of justice be balanced against another legitimate public interest: the public interest in the media communicating facts and information to the public—and the obvious corollary that the media must have access to sources of facts. These considerations legitimise the role of the professional journalist in a democratic society.

This bill brings balance to the legislation in other important respects. The court was previously required to allocate overriding significance to considerations of national security. This bill provides the court with the ability to balance matters of limited risk to national security against other important considerations. That is a much more measured and proper approach.

The bill also corrects a glaring shortfall in the previous legislation. Previously, privilege was excluded where information was conveyed in the furtherance of the commission of an offence, fraud or act that attracted a civil penalty—for example, where a public servant without authorisation disclosed information obtained in the course of official duties, contrary to section 70 of the Crimes Act 1914. To a significant extent, this exclusion rendered the shield laws pointless. Nevertheless, it must be recognised that some misconduct should not be protected and it is appropriate to allow the court to allocate weight according to the nature of the specific disclosure. Therefore, this bill requires the court to take into account whether the communication was made in the furtherance of an offence, the nature and gravity of that offence and the importance of the evidence being shielded to the proceeding. I believe that the bill transforms the journalist shield laws from an empty gesture into an important component in upholding a robust fourth estate. This bill extends the application of the shield laws beyond proceedings in federal courts and courts in the ACT to all proceedings for an offence against a law of the Commonwealth in any other Australian court.

Together with existing shield laws in New South Wales, this legislation provides journalists with guidance as to what circumstances will challenge their code of ethics. I am encouraged by the interest shown in other states in enacting similar shield laws. While I note that the WA Attorney-General has expressed some reservations—unfortunately, it appears, based more upon his perception of insufficient consultation with him than anything else—I remain hopeful that he will realise that shield laws are an integral component of an accountable democracy and will allow WA journalists to get on with doing their job.

I could not speak on the issue of journalists without referring to those wonderful people who provide an essential service to my constituents in Hasluck and surrounding areas, and they are the hardworking journalists and staff of my local newspapers, such as the Echo and the Examiner. In particular, I would like to acknowledge local journalists Julian Wright, of the Examiner, and Kristy Moroney, of the Echo. I also acknowledge the fine work of Jamie MacDonald, formerly of the Echo, and wish him well in his new job.

The DEPUTY SPEAKER (Ms AE Burke)—Don’t make me force you to come back to the relevance of the bill before us, Member for Hasluck!

Ms JACKSON —It was important that I acknowledge how broad the application of these journalism shield laws may be, Madam Deputy Speaker.

The bill establishes an essential balance between the public interest in the administration of justice and the public interest in the media having access to sources of facts for the communication of facts and opinion to the public. The bill creates a framework in which journalists can conduct their profession with integrity but not with impunity. I am confident that this bill lends no comfort to scandalous reporting but facilitates great investigative journalism without that being at the expense of justice in the courtroom. It stands as part of a raft of measures that have been promoted and supported by the Rudd Labor government, including the terrific work of Minister John Faulkner on changes to the freedom of information legislation and the like to ensure a much more transparent and accountable government. For these reasons, I commend the legislation to the House.