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Thursday, 14 June 2007
Page: 179


Senator LUDWIG (7:42 PM) —I rise to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2007. This bill represents a quick fix for the Howard government. It moves to provide a form of professional privilege in the Evidence Act 1995 for the purpose of protecting journalists who refuse to name their sources. There are two main reasons why this bill is being pursued by the government at this time. The first reason is that it is an attempt to pacify the recently formed coalition of media interests under the banner of the Australia’s Right to Know campaign. The second reason is to take the heat out of the Harvey and McManus case in time for the upcoming election. I will make a few remarks on these reasons in my concluding remarks this evening, but, firstly, I will take the Senate through the detail of the bill.

The bill is modelled on division 1A of the New South Wales Evidence Act 1995, but it differs in that, whereas the New South Wales act proposes a general scheme of protected confidence, this bill, as its title suggests, is more limited in its application. The division title of the proposed new 1A in the bill is the same as that in the New South Wales Evidence Act—that is, professional confidential relationship privilege. However, when this definition of protected confidence in the proposed section 126A is compared with the New South Wales act, we see that it is vastly different. In the bill before us, the definition is exclusive to journalists; whereas, in the New South Wales act, the definition relates exclusively to conduct. While the New South Wales example would allow other professions to access privilege, the definition in this bill sets up a system of protected confidentiality whereby only journalists, otherwise called ‘confidants’ in the proposed division, may be entitled to a form of qualified privilege if they are communicating in confidence while (a) acting in a professional capacity and (b) acting under an express or implied obligation not to disclose the contents of the communication.

Proposed section 126B provides the means by which courts may exclude evidence derived of a protected confidence. Subsection (1) provides that the evidence may not be adduced where it would disclose the protected confidence, the contents of a protected confidence or protected identity information. Subsection (2) provides that this exclusion may occur via application of a party to the proceedings or via the presiding officer’s own initiative. Subsection (3) removes the application of judicial discretion and directs that the evidence must be excluded where harm would occur to a protected confider—in that instance, it would be journalist—and where the nature and extent of the harm outweighs the value of the evidence to be adduced. Subsection (4) provides a non-exhaustive list of factors the court must take into account in weighing the potential harm to the journalist against the potential value of the evidence, but also directs that a presiding officer must give greatest weight to any risk of prejudice to national security. Subsection (5) of the bill provides that whatever its decision on whether to adduce the evidence, the court must state reasons for its decision.

It is interesting to note that the key diversion from the New South Wales template is the removal of discretion in consideration of national security information. In the bill before us this evening, section 126B(4), which I have just gone to, sets out the factors which must be taken into account by the court when deciding whether or not to exclude the evidence. It states that the courts must take into account and give the greatest weight to any risk of prejudice to national security. The criteria does not appear in the corresponding list in the New South Wales act. This may be a reflection of the differing responsibilities of our respective levels of government.

So we see that the application of the qualified privilege comes down, to a large part, to judicial discretion. There has been some comment that judicial discretion is undesirable and that journalists should be afforded some type of absolute privilege merely by claiming it. Of course, absolute privilege simply does not exist for lawyers, politicians, priests, doctors or any of the other professions; they are all subject to elements of judicial discretion. Judicial discretion in these matters is not something to be anxious about; it is to be desired. The parliament is best placed to provide a framework as, in constructing rules, we cannot foresee all things and all circumstances, and that is why these matters are best weighed in each instance on the facts of the case itself.

Proposed section 126C provides for a loss of qualified privilege when the journalist consents to the evidence being adduced. Proposed section 126D provides for the loss of privilege in circumstances of misconduct in the form of fraud, a criminal offence or an act which is liable to a civil penalty. If the journalist was involved in such misconduct, the court may decide that the privilege was not available. According to the government, however, the clear intention of this legislation is to introduce a privilege which provides the court with a guided discretion to balance the competing public interests of the freedom of the press with the public interest of disclosure of that information.

Again, it will be up to the courts to make the decision. In some circumstances, unlawfully receiving national security information is, in itself, an offence. The court will have to weigh the value of granting qualified privilege with the value of ensuring our national security.

Proposed section 126E provides that the court may make various orders to protect the safety and welfare of the protected confider, short of refusing the privilege. These include media suppression orders and orders that certain information be heard in camera.

Proposed section 126F provides that the cases that are currently before the court will not enjoy the protection of this section, but a protected confidence which occurs before the act comes into force may be covered. This is a sensible approach.

The rest of the proposed bill, in essence, is of a minor technical or consequential nature, so I will not dwell on it here this evening—although I may have more time than I had considered, so I will go to some of the comment about it. Labor’s view on the bill is that it is welcome but insufficient. The Australian Law Reform Commission 2005 review of the uniform evidence law report, report No. 102, did recommend protection for journalists. It is worthwhile taking the Senate to it this evening. It said:

Since the publication of DP 69, the issue of protection of journalists’ sources has received significant media attention. Under the common law, courts have consistently refused to grant journalists a privilege or lawful excuse under which they can refuse to reveal their sources. The journalists’ code of ethics prohibits a journalist from revealing a source once a commitment to confidentiality has been made. At the time of writing, legal proceedings had commenced against two Herald Sun journalists for protecting the source of leaked government documents regarding changes to veterans entitlements. The Attorney-General of Victoria has indicated his support for a uniform national approach to journalists’ sources. The Australian Government Attorney-General has also announced that the issue would be considered by the Government.

At the recent national conference, the national platform of the Australian Labor Party was amended to include the following: Labor will legislate for proper freedom of information laws that enable Australians to access appropriate information about government activities, move to implement the ALRC recommendations on sedition laws, provide shield laws for protecting confidential sources and whistleblowers, and review laws that criminalise reporting of matters of public interest.

This is where we come to the heart of the matter. The Howard government is not genuinely committed to bringing about an open or transparent government. It is for this reason that it spends hundreds of thousands of dollars chasing leaks that have not detracted from good governance or national security but have, in fact, enhanced it. The two journalists that the ALRC report referred to are Gerard McManus and Michael Harvey. The bill will not help their case by directly changing the substantive law that applies. Neither is it retrospective in that sense nor does it seek to override the Victorian Evidence Act. What it might do is send a message to the courts of the Commonwealth parliament’s clear intention in relation to journalists’ privilege—that is, to recognise its existence. On that basis the Attorney-General, is seems, has given an assurance in revisiting this area with further legislation.

As it said at the outset, Labor supports this bill despite the fact that it is clearly less than ideal. The Howard government stands condemned that it did not act earlier; it did not act until this time, and it stands further condemned for the piecemeal nature of reform that this bill represents.

It is simply not good enough to blame the states. Some states and territories have whistleblower protection legislation in place. Some have professional privilege in place. As Mr Ruddock well knows, there is nothing to stop a parliament legislating within its jurisdictional competence to protect the rights and freedoms of Australians, especially with regard to transparency of government, the free flow of information or other related matters.

Be clear: this government is no friend of Australia’s right to know and no friend of anyone who desires freedom of information or transparent government. No other federal government has done more to clamp down on the flow of information, whether it be collapsing of government media units into the minister’s office; the direction of the AFP for the purpose of conducting fruitless but intimidatory raids against public servants; the crackdown on whistleblowers like Alan Kessing, who exposed the massive security failures of the Howard government at airports, despite all its talk of national security since September 11; the directives to public servants at Senate estimates not to answer questions about the channelling of $300 million to Saddam Hussein; the slack and tardy way that ministers like Mr Joe Hockey answer questions on notice that have been put on the record, if, indeed, he answers them at all; the explosion in government entitlements, staffing and blatant political advertising in order to maximise the benefits of incumbency and the gigantic Liberal Party spin machine; the abuse of its control in the Senate; or the effective neutering of freedom of information legislation. This is a tired and arrogant government that does not enjoy scrutiny at all.

As I have said, Labor will support this bill to send a clear and unambiguous message of the parliament’s will. But we expect this area to be revisited before the election so that reform to the Evidence Act may be considered more broadly. With those remarks, I commend the bill to the Senate.