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Thursday, 14 June 2007
Page: 185


Senator STOTT DESPOJA (8:08 PM) —I rise to speak on behalf of the Australian Democrats to the Evidence Amendment (Journalists’ Privilege) Bill 2007. As we have heard, this bill seeks to amend the Commonwealth Evidence Act 1995 and various other acts so that journalists’ sources are given some protection from discovery in federal legal proceedings, either in court or in out-of-court matters. This is a qualified privilege. The court has discretion to grant the privilege based on a number of matters. The court must consider freedom of press—association—and the public’s right to know. The law is said to be based on a New South Wales model, albeit with one modification: the court must give greatest weight to the risk of prejudice to national security. Privilege can also be obtained on behalf of a child. It will not apply to situations where legal professional privilege already applies or where there is misconduct between the journalist and his or her source, nor will it apply to matters related to James Hardie or the Proceeds of Crime Act.

As we are all too familiar with, the true reason behind this legislation—which the Democrats consider has aspects which are somewhat ill-considered, shall we say—is the enormous media pressure stemming from the case of Michael Harvey and Gerard McManus, which has already been referred to. I suspect that some sceptics among us may simply view this legislation as the government trying to solve a potentially embarrassing problem.

As honourable senators would be aware, for as long as the Democrats have been around we have desired open and transparent government at all levels and also government guarantees of freedom of the press, freedom of speech, free media, independent institutions and an informed and educated population. So it is worth noting that the issue raised by the bill is of fundamental importance to the Australian community, from the perspective of both the administration of justice, which dictates that a witness must generally answer all questions put to him or her—obviously, this is how a court obtains and weighs evidence—and freedom of speech and press.

We do not oppose the establishment of laws which aim to improve Australians’ participation in democratic processes. Indeed, the Democrats have put on record a number of ideas, policy suggestions and private members’ bills that deal with the issue of reform in these areas. We have called for greater protection in the area of Australian privacy rights and the revocation of the sedition laws. We drafted the Parliamentary Charter of Rights and Freedoms Bill 2001, relating to freedom of association and the press, which is a fundamental right. We have put whistleblower legislation on record. The Public Interest Disclosure (Protection of Whistleblowers) Bill, which I think Senator Murray, coincidentally, tabled this week, supports the role of public servants as well as MPs and journalists with an open, transparent and accountable government. So our record on this is pretty clear.

We would argue that such measures, if introduced, would counter some of the negative press that we have seen on this government in recent months. I note that in Senator Nettle’s comments to the chamber she referred to a litany of encroachments on freedom in Australia today, including, arguably, press freedom. Negative reactions include the annual press freedom report commissioned by the Media, Entertainment and Arts Alliance titled Official spin: censorship and control of the Australian press 2007. This report lists 19 areas in which the media’s ability to report freely has been constricted. It highlights restrictions caused by policymaking, law enforcement, government comments and public actions. In relation to the issue of journalists’ privilege, generally the Democrats support the rights, powers and immunities that will flow from the creation of a new privilege for journalists.

But, far from being uncontroversial, there are several aspects of the legislation before us which clearly demand attention. It is unfortunate too that the scrutiny and analysis of the legislation before us is occurring tonight on the floor of the Senate, albeit with a committee stage to follow, and not within the auspices of a Senate committee. As you may know, Mr Acting Deputy President, I attempted to refer this matter when it came to Selection of Bills. I wanted to refer this legislation to a Senate committee. That attempt was rejected by the government, and I understand that the Labor Party have argued that they would prefer to wait to see the next bill in this series before considering a committee. I want to put on record the Democrats’ concern that, once again, an attempt to refer legislation, with good reason, to a committee has been thwarted by this government. I have become used to death by committee in this government, where the government automatically refers legislation with minimal analysis and scrutiny and a time frame that is usually quite constricted. This is a case where the Democrats were actually prevented from referring a bill to a Senate committee, namely the Senate Standing Committee on Legal and Constitutional Affairs.

We are concerned that the journalist shield laws’ focus is too narrow in this bill. Missing from its protection are other professionals who handle confidential or sensitive information and, as have been referred to, potential whistleblowers who, in good faith and acting in the public interest, may turn to a journalist to reveal corrupt or inappropriate conduct on the part of public servants—individuals who, like journalists, are faced with a daily ethical dilemma about whether to disclose information obtained in confidence.

In relation to the absence of protection for other professionals, it is generally accepted that confidentiality and privilege issues arise in relation to doctors, social workers, counsellors and priests, among others. In my home state of South Australia at the moment, health professionals are grappling with quite a difficult public health and legal policy issue that arises from the provision of counselling services to people living with HIV. While I note, as foreshadowed in the Attorney-General’s second reading contribution, that this bill is part of a wider legislative reform agenda, a decision by the government not to include these professionals in this scheme today is of great concern to the Australian Democrats. The decision to exclude priests, doctors and others also apparently sits uncomfortably—certainly according to the Sydney Morning Herald—with the New South Wales Attorney General, who has accused Mr Ruddock of going back on an agreement to extend the protections to people other than journalists.

In light of such criticism, the Democrats urge the government not to delay in any way bringing to parliament or releasing for public comment—for example, as an exposure draft—its second proposal. I think that should be done with alacrity. These issues are of grave importance to the community as a whole and need to be finalised quickly. It is unfortunate that the government has not seen sense in introducing the measures as part of a single package. I hope that this decision will not compromise state government cooperation in working towards uniform evidence laws across the country.

As for the absence of protection for whistleblowers, how appropriate that we should be debating this bill in the Senate in the week that Allan Kessing is to be sentenced—and I know that this was referred to in the original contribution by Senator Ludwig—for breach-ing confidentiality despite having exposed real problems at Australian airports. It is a little coincidental and a bit ironic. It is shameful how the government treats the case of Michael Harvey and Gerard McManus on the one hand and the case of Mr Kessing on the other. It is simply a case of Harvey and McManus being protected under this regime and Mr Kessing not being protected.

The Democrats caution the government that, unless it acts to protect whistleblowers, this law may actually backfire on it; there is the potential for unreliable sources to abuse this qualified privilege and to go to journalists to blow the whistle instead of following a suitable whistleblower protection scheme, which would emphasise escalation steps, if you like. This is just further evidence as to why we desperately need a private member’s bill or, indeed, a government initiated bill on whistleblowers and protected disclosures. We also echo the concern that has been stated by the Media, Entertainment and Arts Alliance that the bill risks ‘amounting to nothing more than rhetoric, without accompanying protected disclosure laws to prevent whistleblowers from being hunted down and prosecuted’.

In addition to these concerns—as you may be aware, Mr Acting Deputy President Barnett—the Parliamentary Library in its Bills Digest has also helpfully identified several aspects of the legislation that are problematic. I think Senator Nettle referred to a couple of these, as did the Labor Party in their contribution. Nonetheless, there is the proposed protection of confidences where they are made in the presence of a third party, if the third party’s presence is necessary to facilitate communication. The problem with that is that ‘third party’, unfortunately and perhaps unhelpfully, is not defined nor explained in the explanatory memorandum. I am happy for the minister to perhaps elaborate or define for the benefit of the Senate what is meant by the terminology ‘third party’.

Secondly—I know that Senator Nettle referred to this in her contribution—proposed section 126D is controversial in that it provides that the protection provided for by the professional confidential relationship privilege will not apply when the information contained in the document itself contains or its communication involves fraud, an offence or an act that renders a person liable to a civil penalty. ‘Fraud’ is defined broadly and again without any protection for whistleblowers. Almost any unauthorised release of information by a Commonwealth public servant may constitute an offence of some sort. Thirdly, the proposed section 4A to be inserted in the JHIPA excludes the application of the professional confidential relationship privilege from a James Hardie proceeding, although this exclusion does not apply to authorised persons—that is, people who have seen the conduct of a James Hardie proceeding.

The Democrats are also concerned about the absence of a clear definition of ‘a journalist’. I am not sure whether in her contribution—which no doubt will follow mine—Senator Wortley will give her view on this particular issue. I note that the explanatory memorandum states merely that ‘a journalist’ is to be given its ordinary-usage meaning. But who and what is a journalist? I am sure that people in the chamber have their views, but I am sure that the minister will articulate his view as well.

There is also an absence of clear guidance as to when a journalist may be acting in their professional capacity, which begs the question: what constitutes professionalism in that instance? Formulating and enforcing a code of ethics and a code of conduct are two characteristics of many occupations which we may regard as professions. While law, medicine and teaching have had their share of adverse publicity, it is true that they are still seen probably as the leading and most attractive occupations because their ethical obligations are clearly spelt out in primary legislation. As to journalists, I note that the Attorney-General in his second reading contribution rightly states that journalists:

... operate under a strict code of ethics which stipulates a clear obligation to keep a source’s confidence.

But different from other professions is the fact that a journalist’s code of ethics is self-imposed. I am not necessarily debating the worth of that or otherwise, but clearly there is a differentiation.

In this proposed bill there is the opportunity for such a code to be enacted in the legislation. The Democrats would welcome seeing reference somewhere in the bill that a journalist acting in their professional capacity is someone who has agreed to be bound by a code of ethics. I am not sure what Senator Wortley’s view of that is. Again, I refer to her because of her former capacity. She may shed some light on this that may benefit the Senate.

A further issue with journalists’ professionalism in this bill is the way the bill also seeks to determine professionalism by reference to the chosen medium in which a journalist may report the news. The explanatory memorandum states that a journalist may sometimes not be acting in their professional capacity—for example, if they blog. The Democrats take issue with this idea of narrowing a journalist’s professionalism in this way. We would suggest that a technology neutral approach to journalism that is more clearly spelt out in the proposed bill would be more appropriate.

It is also unclear what impact, if any, this legislation may have on other areas of the law. Uniform defamation laws were introduced in January 2006 in every state and territory. Presumably, given that this bill establishes a qualified privilege for journalists, it recognises that in the interests of society a journalist should be able to communicate frankly with their source without fear of a defamation action. Of course, a well-known principle of defamation law is that, if a communication is covered by qualified privilege, a plaintiff can only succeed in an action of defamation by showing, in addition to the usual matters which must be proved, that the defendant was motivated by malice in making this statement. I ask the government, through you, Mr Acting Deputy President: has the government assessed the impact of this proposal on defamation law?

Another type of privilege, legal professional privilege—or client legal privilege—has proved to be one of the more common exemption claims under Australian freedom of information laws and has featured in a lot of the reported decisions. As honourable senators may be aware, the current Australian Law Reform Commission inquiry into privilege focuses primarily on the concept as it applies to federal investigatory bodies, but the issues paper recently released gives a comprehensive overview of the concept and raises some important questions about the extent to which privilege should be abrogated and in what circumstances. I have no doubt that this inquiry was prompted by issues raised in the AWB and HIH royal commissions, where there were attempts to claim privilege in order to frustrate investigations. Some of the discussion of privilege in the Australian Law Reform Commission issues paper will be grist for the mill in considering the privilege exemption in the context of this bill.

Equally, another impact which appears to have been overlooked is the protection for disclosures outside courts. Many statutory non-court bodies or administrative bodies have come to play a significant role in the resolution of disputes at the federal and state levels. Although differences in operation vary substantially between these bodies, in some cases the rules of evidence may apply. Even the royal commission process, which might hear evidence of journalists, in most instances will observe court etiquette and the rules of evidence, at least in part.

Senator McGauran, as an example, gained access to a woman’s private hospital records and medical records, despite the patient’s refusal to give her consent to their disclosure and despite her doctor’s refusal to provide the information on the basis of a well-established privilege—doctor-patient privilege—and then used his parliamentary privilege to discuss the case. I believe this did much harm to public confidence. So clearly there are a number of privilege issues that are worthy of discussion in a community context and, particularly in light of this legislation, in the Senate as well. I am sure that there are a number areas of parliamentary privilege—discussions, maybe outbursts, under parliamentary privilege—that are worthy of examination.

Such is the magnitude of the decision before us to enact this bill that, rather than ram it through the Senate, as we are about to do, the Senate Legal and Constitutional Affairs Committee would again have been the most appropriate place for us to examine some of these outstanding issues in relation to broader issues of privilege, the absence of protection for whistleblowers and some of the other issues that have been raised by me and other members in this place.

I really do not understand—and I am happy for the minister, Senator Johnston, to explain to us—why there was a need to push this through the parliament tonight. I do not understand why agreeing to a reference, even on Wednesday through the selection process, would have unnecessarily delayed such an important piece of legislation. Why was it that we could not explore some of these issues through the committee process—not necessarily a long one? Why couldn’t we have invited members of the community, including the journalist community, to play a role in this debate? (Time expired)