Speech on Journalistic Priviledge Amendment
Thursday, 14 May 2009 23:39
Mr Speaker, I rise to speak on this change to the confidential relationship privilege provisions of the Evidence Act 1995.
Mr Speaker, I do this because I think there is something here that is fundamental to our democracy.
This is about an aspect of freedom of speech and the mechanisms we have to get facts and information out into the general public that otherwise might be suppressed, hidden or covered up.
The Bill is about a part of the crucial matrix of checks and balances that go together to make up the fabric of our democracy.
We currently have a legal basis to provide for a privilege at the trial and pre-trial stage of civil and criminal proceedings for communications made in confidence to journalists in certain circumstances.
The Evidence Act 1995 provides for a professional confidential relationship privilege in some cases in court proceedings.
This prevents the adducing of evidence that would disclose confidential communications made by a person to a journalist acting in a professional capacity, or the contents of document recording such a communication or information about the identity of the person who made the communication.
Basically, Mr Speaker, there’s a certain legal basis journalists can rely on to protect their sources in some circumstances.
The privilege is granted at the court’s discretion but with quite restricted guidelines.
This Bill gives greater flexibility to the judiciary, and adds new factors into things that can be taken into consideration.
Very importantly, this Bill will allow the court to consider harm to a journalist’s professional reputation and their ability to obtain information if they are forced to reveal a source.
That is a very important consideration for any journalist when it comes to a judicial crunch point Mr speaker, and I am will watch with interest how this is interpreted.
Mr. Speaker, there are many in the public, or maybe even in this place, that see this issue as a relatively trivial hypothetical.
But it isn’t. It isn’t trivial and it isn’t hypothetical.
According to the journalists association, the MEAA, six journalists have been threatened with jail over confidential sources in the past 18 months.
This is absolutely not hypothetical Mr Speaker. These are real positions journalists are put in and real choices that journalists have to make today around this country.
It isn’t trivial either.
Some of the biggest and most important stories have been broken using confidential sources.
The story of the Queensland cesspit under Joh Bjelke Peterson, and the corrupt regime he ran.
Police corruption in New South Wales in the 80s.
The underbelly of Victorian and New south Wales over the last two decades.
These are vitally important stories that go to the heart of our public institutions and our democracy.
These stories ran, collected momentum, and saw some of the most powerful people in this country either disgraced or gaoled.
It would be interesting to be able to rewind history and go back over all these stories and cases and see what would have happened if journalists were not allowed to utilise confidential sources in their reporting.
Mr Speaker whilst Australia has had some very spectacular stories about corrupt politicians, public servants and businesspeople, I actually believe this is an extremely healthy sign for our democracy.
It is healthy because these stories are out there and because convictions have resulted.
In other countries, these stories may well have never seen the light of day.
These politicians, these businesspeople, these public servants would still be running the country.
Think about it.
An ex premier gaoled, another disgraced.
The rotten core of the rampant NSW police corruption in the 80s exposed in all its ugliness.
I doubt a lot of these stories would have got out without the use of confidential sources.
Think about the good that came out of the work of journalists such as Chris Masters in his work on the “Moonlight State” as he put it in his Four Corners program.
Similarly, the work of the Courier Mail Phil Dickie, another fearless journalist. And of course there are many others.
Of course some of these stories did come out under existing laws.
But I think there is a clear case to say these stories and these exposures have shown how important journalism is, particularly investigative journalism.. And that some of the current strictures should be loosened to ensure journalists are abler to do their job.
Of course Mr Speaker in framing legislation like this there is no simple answer and it is a question of judgement and of balance.
But I come down on the side that says protect journalists to a greater degree to ensure society has access to the information that might not otherwise see the light of day.
Journalists today are put in very tough positions by bodies such as the Crimes Commission or anti-corruption commissions.
Often there are good public interest reasons for doing this. There can be good public interest reasons on both sides.
But I do think it is important, and more weight should be given, to the ongoing role of the journalist and their credibility over time.
In my capacity working for a union, working for the City of Ballarat as a councillor and working as a Federal member of parliament I have of course come into contact with many journalists.
A number of those I would rate as some of the gutsiest people I have met.
Think about the courage it takes to expose corrupt people from the underworld.
Mr Speaker, currently, in exercising its discretion over whether a journalist may have a legal right to the protection of a source, the court must take into account certain matters, and must give the greatest weight to national security.
Journalistic privilege is automatically lost where a communication was made in the furtherance of the commission of an offence, fraud or act that attracts a civil penalty.
This Bill will remove the requirement that national security be given the greatest weight, though it will make it clear that it is still a factor that courts are bound to consider.
This amendment will provide greater flexibility for the court by allowing it to determine the weight to be given to a particular risk of prejudice to national security based on the evidence before it.
The greater the risk of prejudice to national security and the greater the gravity of that prejudice, the greater the weight the court would give to this factor and the less protection it would afford to a journalist and his or her source.
I think these laws achieve a better balance.
The Bill will also remove the automatic loss of privilege where the communication to a journalist was made for an improper purpose. Instead, the court will be required to take this issue into account in its exercise of discretion.
This amendment enables the possible application of journalists’ privilege to cases where a communication between a journalist and their source is itself an offence, such as a public servant’s unauthorised disclosure of information obtained in the course of official duties to a journalist in contravention of section 70 of the Commonwealth Crimes Act 1914.
To assist the Court to frame its consideration of whether to grant the privilege in any particular case, the Bill includes a new provision directing that there be a balance between the public interest in the administration of justice and the public interest in the media communicating facts and opinion to the public and, for that purpose, having access to sources of facts.
Mr Speaker, this is not an easy Bill to frame. It is about balance.
The journalistic community is a diverse bunch.
Of course we politicians don’t agree with everything journalists do. That’s in the nature of our relationship, and it shouldn’t be otherwise.
But I don’t think anyone can argue that the Australian media and Australian journalists are central to our democracy.
In my view they need room to move and some special consideration due to the importance of the role they play.
The Rudd Government noted this in the run up to the last election, and we are delivering on that commitment today.
These laws allow flexibility and allow our judiciary to weigh up a wider range of issues in the consideration of journalist source confidentiality.
This Bill without doubt enhances transparency and accountability of government.
These laws, at the end of the day are not about protecting journos.
They are about protecting our democracy.
Can you imagine these laws being put into place in Fiji, or Zimbabwe, or China. Absolutely not.
These laws are quite simply a measure of the health of our democracy and our willingness put our society to the test.
And I am quite proud to stand here and recommend them to the house.
Thank you Mr speaker.
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