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Thursday, 14 June 2007
Page: 192


Senator WORTLEY (8:40 PM) —I rise to speak on the Evidence Amendment (Journalists’ Privilege) Bill 2007. In doing so I indicate my general support for the bill but stress that the bill does not go far enough and that the protection afforded is limited.

This is a bill to amend the Evidence Act 1995 to introduce a new privilege that allows journalists facing trial to refuse to disclose the identity of their sources. It would give the court discretion on the matter, requiring it to exclude evidence where the nature and extent of the likely harm to a protected source outweighs the desirability of the evidence being given. There are, however, several caveats to this which relate to specific instances in which the discretion may not be used. What this bill fails to do is address the issue of legal protection for the journalist’s sources—for whistleblowers and others who provide information to journalists. I would not be overstepping the mark by saying that it is too little and, for some, too late. The reality for anyone with their eyes open is that this is just another example of the Howard government’s approach to legislation in an election year. We have been waiting since 2005 for the Attorney-General to make good on the commitment to pass ‘shield laws’ to protect journalists. Now, two years later, what we have before us is a step in the right direction, but it is not the leap that it could have been and this in itself is disappointing. The absence of protections for public interest disclosures means that we have again missed an opportunity to address inadequacies in our laws. The broader question of protections for whistleblowers and for all professionals with a confidential relationship to their clients remains to be addressed.

This bill has made the legislative agenda because of the plight of two journalists, Michael Harvey and Gerard McManus, who are awaiting sentence for refusing to identify their source for a story that forced the government to abandon their plan to cut war veterans benefits. While these laws will not be retrospective, the Solicitor-General has made representations to the court that the law was in need of reform.

At our national conference, Labor committed to a national platform that includes the following: we would legislate for proper freedom of information laws that enable Australians to access appropriate information about government activities, we would move to implement the Australian Law Reform Commission recommendations on sedition laws, we would provide shield laws for protecting confidential sources and protecting whistleblowers, and we would review those laws that criminalise reporting of matters of public interest.

It has been argued that this bill provides some protection but that it could fail to be effective when journalists were speaking the truth about matters the government did not want revealed. Legal academic Dr Alexander Brown of Griffith University is head of a national project to reform whistleblower laws. He said in relation to the bill that journalists would still be dragged into prosecutions unless the government introduced whistleblower protection laws. The Media, Entertainment and Arts Alliance has said that the changes will amount to nothing more than rhetoric without accompanying protected disclosure laws to prevent whistleblowers from being hunted down and prosecuted. The Australian Press Council has also stated that the bill is too general to adequately protect journalists. The media alliance federal secretary and immediate past President of the International Federation of Journalists, Christopher Warren, said:

While journalists’ sources remain unprotected at federal law by anti-corruption body and whistleblower legislation, it is a farce to suggest this bill will in any way address the deplorable state of press freedom in this country.

The Age, while welcoming the new laws, also highlighted concerns in its editorial on 4 June when it wrote:

... the law also contains a glaring deficiency, because it neglects the vital role of whistleblowers who act in the public interest when they go to the media. In debate, Labor rightly lamented the failure of this legislation to protect the source on whom the journalist relies in the first place. That is of particular concern given the zeal with which governments have in recent times pursued whistleblowers, even when the public interest clearly justified bringing to light the information they had. Until that half of the press freedom equation is resolved, Australians’ right to know what their governments are up to will remain compromised.

The media alliance report Official spin: censorship and control of the Australian press 2007 highlights freedom of information, sedition, protection of whistleblowers and shield laws for journalists as areas where press freedom is suffering, and where there is a pressing need for legislative review.

The report also raised the issue that a question on notice in parliament last year revealed that, between 2002 and 2006, there were 53 referrals from Commonwealth government departments and agencies to the Australian Federal Police over ‘unauthorised disclosures of government information’. To quote from that report:

The introduction of laws protecting journalists from prosecution for maintaining the anonymity of their sources is merely nominal if whistleblowers can and will be uncovered and prosecuted by the authorities.

In May this year the Australia’s Right to Know media coalition was formed by a broad cross-section of the media, including the ABC, AAP, News Ltd, SBS, Fairfax and Sky News as well as commercial TV and radio organisations. The coalition announced that court suppression orders, the rejection of freedom of information applications, antiterrorism laws and increased government and police intervention had severely eroded press freedom in recent years. They quoted Reporters Without Borders ranking Australia at No. 35 on its worldwide press freedom index. Shamefully, that is a ranking which puts Australia below Estonia, Bosnia, Bolivia and Ghana in the press freedom index.

The Australia’s Rights to Know coalition has also compiled a list of examples of some current impediments to free speech, including:

  • The Federal Government has finally agreed to release its 18-month-old polls into what the public think of its WorkChoices law - but not until after the election ...
  • The Federal Government claimed it was “not in the public interest” to release information on the first home owners’ scheme, including the number of wealthy people fraudulently claiming the $7000 grants under the scheme. A newspaper took the case to the High Court and lost.
  • It has become almost impossible to get balanced reports from war zones as it has been in the past. Our military will cooperate only with embedded journalists to ensure only the official line is reported.

So, while I speak in support of the Evidence Amendment (Journalist’s Privilege) Bill 2007, I highlight that it does not address many of the reforms necessary to deliver true press freedom in Australia; it is a starting point only. I look forward to the introduction of legislation that addresses areas that have been neglected in this bill, including the adoption of the ALRC recommendations on sedition laws and the introduction of more effective shield laws for protecting confidential sources and whistleblowers.