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Thursday, 14 June 2007
Page: 194


Senator JOHNSTON (Minister for Justice and Customs) (8:49 PM) —I would like to thank senators for their contributions to this debate. The Evidence Amendment (Journalists’ Privilege) Bill 2007 assists to reconcile the legal and ethical obligations of journalists. It does this by amending the Evidence Act to provide for judicial discretion to exclude evidence that would otherwise disclose a journalist’s source. In making these decisions, the court must consider a number of facts, including the nature of the proceeding, the likely harm to the journalist’s source and any implications for national security. The bill provides an appropriate balance between the competing public interests—the public’s right to information and the freedom of the press—and the public’s confidence that judicial decisions are based on relevant information.

The privilege is largely modelled on an existing privilege relating to confidential communications that exists in New South Wales. I cite the New South Wales Evidence Act 1995, which has a comprehensive model that, for the sake of uniformity, has been followed. The Commonwealth agreed to adopt the New South Wales provisions as the appropriate model for that reason. This approach was recommended by the Australian, New South Wales and Victorian law reform commissions following an 18-month review of uniform evidence law.

As the Attorney-General has said, the Australian government’s move to introduce this legislation demonstrates the Commonwealth’s position on this issue. This was necessary, as senators have noted, in light of the proceedings involving two journalists, Gerald McManus and Michael Harvey, currently before a Victorian court. The Commonwealth Solicitor-General made submissions in that case that a judge ought to have discretion to ensure that, in appropriate cases, broader public interest can be taken into account, which might mean that penalties, particularly terms of imprisonment, would not be imposed. As these proceedings are in Victoria, it will be equally important that the Victorian government also demonstrates its commitment by legislating on the issue. I note that senators have conveniently failed to acknowledge that obligation.

I would now like to address some specific concerns raised by senators and dealing with the issue of uniformity. Although this bill applies only to journalists, it is wrong to suggest that the introduction of the bill reneges on the Commonwealth’s commitment to uniform evidence law. The Standing Committee of Attorneys-General is still in the process of finalising the model evidence bill. The working group of officers from the Commonwealth, states and territories is currently considering an expert reference group report and finalising a model for the consideration of the SCAG ministers. The Attorney-General has indicated that he is optimistic that the standing committee will reach agreement soon. The Attorney-General hopes to introduce a second bill to implement the remainder of the government’s response to the Uniform evidence law report.

There are a number of mechanisms already in place to address the issues raised by whistleblowers. The term ‘whistleblower’ should not be used glibly or recklessly when people are breaching their contracts of confidentiality. Governments must be able to conduct their business with a degree of confidentiality.

Federal public servants who report breaches of the Australian Public Service code of conduct for discrimination and victimisation under the Public Service Act are already protected. Similarly, the Commonwealth Ombudsman examines complaints over the actions and decisions of Commonwealth agencies. These mechanisms provide appropriate avenues for public servants to raise issues they are concerned about. It is not always in the public interest that information be disclosed. That is quite a trite statement and obvious. In some instances releasing information may be an infringement of privacy, damage reputations and undermine national security, as I have already mentioned.

It is discouraging that a number of senators have sought to take this debate to areas which range more widely than the issues before the chamber tonight. I see little point in addressing those save to say that, whilst the opposition uses the opportunity of this bill to criticise this government, I note that it supports the bill. It criticises the bill and it criticises the government, yet it has no policy on this matter. On this subject, the opposition has a very clear model to copy—that is, the New South Wales model. As I have said, for the sake of uniformity we have conducted this legislation in line with that model. I note the Greens have amendments here tonight, yet the opposition is prepared to complain and talk about the bill and say that there are things wrong with it and yet they have no amendments. As usual, the opposition is simply conducting a hollow political exercise of carping while having done no real work to address the issues about which they complain.

The bill is a significant amendment to evidence law and I welcome the opposition’s support. I pause to also say, in addressing Senator Stott Despoja’s issues, that the measures contained in the bill will impact on the evidence that may be adduced in any defamation case. However, these amendments to the Evidence Act will not affect the substance of the law that has to be established or proved to the standards required. The bill recognises the important role journalists play in our democracy and the need for journalists to protect their sources. This bill reconciles that need with the need to ensure that all appropriate evidence is before the courts. Accordingly, I commend the bill to the Senate.

Question agreed to.

Bill read a second time.