SECOND READING DEBATE
EVIDENCE AMENDMENT (JOURNALISTS' PRIVILEGE) BILL 2009
14 May 2009
Thank you Madam Deputy Speaker.
I would like to thank the Members for their contribution to this debate.
Such a debate is a hallmark of a great democracy and unquestionably our system of Government.
It is a shame that the Opposition has chosen not to give their support to this important bill. Indeed, it's somewhat curious in circumstances where the position they are taking necessarily means that they believe the current law is inadequate - a law that they introduced just two years ago.
Indeed, the current law is inadequate, because more often than not, it will be irrelevant or unavailable to a journalist to use. And this is because it provides that the privilege cannot be claimed when the information is originally provided to a journalist in breach of a law - a law involving a civil penalty or in breach of criminal law.
That is, if information is provided for instance by a whistleblower who is a public servant acting contrary to the conditions of their service, or specific laws regarding secrecy and the like, then the journalist, under the current state of law, will automatically be disentitled from relying on the privilege.
We have endeavoured on the other hand, Madam Deputy Speaker, to strike a balance. And that is specified in the objects of the Bill between the administration of justice and the freedom of communication.
I note that the Opposition is taking the view that they believe legislation should be drafted, whether modification of this bill or new legislation, should be drafted on the basis that it creates a presumption in favour of privilege.
I should say that again is diametrically opposed to the position the Opposition took when in Government just two years ago, when the Honourable 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.”
And again I note the significant about-face from that position on the part of the Opposition.
It's 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.
Madam Deputy Speaker, the Evidence Amendment Journalist Shield Bill 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 in the public interest in the administration of justice.
The Bill gives specific recognition to the two public interests which underlie this privilege - the public interest in a free press and the public interest in the administration of justice - but leaves it for the court to have the task of determining 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 the 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 being helpful in resolving ambiguity or uncertainty in legislation, even though of course, where the language is clear, they apply the language of the specific provisions, and of course an objects clause in itself will not determine the outcome on the consideration of the particular facts.
It's 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 Legal and Constitutional Affairs Committee 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 both the public interest in 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 State and Territory Attorneys, I should say, was significant.
The Federal Government has been a supporter of uniform evidence laws, and as such I can assure the House that I will be giving careful consideration to the recommendations of these two bodies.
Madam Deputy Speaker, while the media calls 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 journalist 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 I would think by fair minded people, 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 for instance in those circumstances, or under those motivations should be protected by such a privilege, is certainly a legitimate question.
It is surprising today to see that the Opposition is opposing the Bill on the basis that it doesn't go far enough. As usual, it appears they are playing somewhat opportunistic politics. And they've been quite all over the place on this issue.
In fact, I have indicated that the back-flip in their position is an admission of how ineffective their 2007 laws are in addressing this critical issue. In fact, when the Attorney General introduced the law some two years ago - that is, the current law - he said:
“…it is a significant amendment to the evidence law, and it will provide an avenue to protect confidential communications between journalists and their sources”
Indeed, in the Senate, Senator Johnson representing the Attorney-General, went further, he said:
“…the Bill provides an appropriate balance between the competing public interests.”
Well in fact, 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.
Madam Deputy Speaker, Labor has been absolutely consistent on where it stands on this issue – both in Opposition and currently, as our position is reflected in this bill.
The Government has made clear that it supports the court having a guided discretion to make a decision. In contrast, the Opposition as usual, is playing opportunistic politics in a bid to get some cheap praise one would think from media outlets.
Madam Deputy Speaker, 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.
