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Thursday, 14 May 2009
Page: 3914

Mr McCLELLAND (Attorney-General) (1:39 PM) —in reply—I would like to thank the members for their contribution to this debate. Such a debate as this is a hallmark of a great democracy, and unquestionably our system of government is that. It is a shame, however, that the opposition have chosen not to give their support to this important bill, the Evidence Amendment (Journalists’ Privilege) Bill 2009. Indeed, it is somewhat curious when the position that they are taking necessarily means that they believe the current law—the law that they introduced just two years ago—is inadequate.

Indeed, the current law is inadequate because more often than not it is irrelevant or unavailable to a journalist to use. That is because it provides that the privilege cannot be claimed when the information is originally provided to a journalist in breach of a law involving a civil penalty or in breach of criminal law. For instance, if information is provided by a whistleblower who is a public servant acting contrary to the conditions of their service or to specific laws regarding secrecy and the like, the journalist under the current state of law is automatically disentitled from relying on the privilege. We, on the other hand, have endeavoured to strike a balance, as specified in the objects of the bill, between the administration of justice and the freedom of communication. I note that the opposition are taking the view that legislation, whether a modification of this bill or new legislation, should be drafted on the basis that it creates a presumption—that is, a presumption in favour of privilege. I should say that that is, again, diametrically opposed to the position the opposition took when they were in government, just two years ago, when the Hon. Philip Ruddock, the then Attorney-General, said in his second reading speech:

… the court will be required to give greatest weight to the risk of prejudice to national security.

Again I note the significant about-face on the part of the opposition. It is a little disappointing that none of the members opposite have focused on the key elements in the bill that we believe considerably strengthen the shield that is available under current law.

The Evidence Amendment (Journalists’ Privilege) Bill 2009 will enhance open and accountable government. The bill enables an appropriate balance, as I have indicated, to be struck between the public interest in a free press and the public interest in the administration of justice. The bill gives specific recognition to the two public interests which underlie the privilege—the public interest in a free press and the public interest in the administration of justice—but leaves it to the court to determine where the appropriate balance lies in the circumstances of each case. To suggest that the onus is on the person claiming the privilege is misconceived. To assist a court in finding the right balance, the bill provides an objects clause which sets out the purpose of the journalists’ privilege, and that is to achieve a balance between the public interest in the freedom of the press and the public interest in the administration of justice. There has been some criticism of the inclusion of the objects clause, but I am certainly aware that judges do regard objects clauses as helpful in resolving ambiguity or uncertainty in legislation. That is even though, where the language is clear, they apply the language of the specific provisions and an objects clause in itself will not determine the outcome on the consideration of the particular facts.

It has also been suggested that stronger protections should be provided by imposing an obligation on the court to specifically take into account the public interest in press freedom. Indeed, the Senate Standing Committee on Legal and Constitutional Affairs also recommends the inclusion of a public interest factor in the list of matters that the court should consider in exercising its discretion. The committee’s recommendation would require the court to consider the public interest in both the disclosure of a protected confidence and the disclosure of protected identity information. This is in fact similar to recommendations that were recently made at the Standing Committee of Attorneys-General, where Attorneys agreed to include two new public interest factors in the professional confidential relationship privilege in the model uniform evidence bill. That agreement between the state and territory Attorneys, I should say, was significant. The federal government has been a supporter of uniform evidence laws, and I can assure the House that I will be giving careful consideration to the recommendations of these two bodies.

While the media have called for journalist shield laws to go further, others have suggested that the bill goes too far. I accept that different sectors of the community will have diametrically opposed views on journalists’ privilege. But this bill, as I have indicated, aims to achieve the appropriate balance between competing interests. Inevitably in those circumstances neither end of the spectrum will be completely satisfied with these reforms, but that in itself is often a good sign that the appropriate balance has been achieved.

It should be noted that, while the vast majority of journalists in this country publish information and provide opinion in good faith and unquestionably in the public interest, equally it must be accepted by fair minded people, I would think, that it is not unknown for journalists to be motivated by self-serving reasons and indeed, regrettably, sometimes by malice. The extent to which journalists defaming someone under those circumstances or with those motivations, for instance, should be protected by such a privilege is certainly a legitimate question.

It is surprising today to see that the opposition are opposing the bill on the basis that it does not go far enough. As usual, it appears they are playing somewhat opportunistic politics. They have been quite all over the place on this issue. I have indicated that the backflip in their position is an admission of how ineffective their 2007 laws were in addressing this critical issue. When the then Attorney-General introduced the current law some two years ago he said:

It is a significant amendment to evidence law, and it will provide an avenue to protect confidential communications between journalists and their sources.

Indeed, Senator Johnston, representing the then Attorney-General in the Senate, went further. He said:

The bill provides an appropriate balance between the competing public interests

We have specifically referred to a balance, and we have graded all considerations equally for them to be considered in the exercise of a court’s discretion. Labor have been absolutely consistent in where we stand on this issue, both when in opposition and in government. Our position is reflected in this bill. The government have made it clear that we support the courts having a guided discretion to make a decision. In contrast, the opposition as usual are playing opportunistic politics in a bid to get some cheap praise, one would think, from media outlets.

In conclusion, this bill forms an integral part of the Rudd government’s commitment to enhance transparency and accountability of government and the Public Service and to promote free speech. In conjunction with other proposed reforms in areas such as freedom of information law and whistleblower protections, this bill will bring about a more vibrant system of democracy in Australia. I commend the bill to the House.

Question agreed to.

Bill read a second time.