Additional comments by Liberal senators
1.1
Liberal senators acknowledge and support the stated objectives of the
Evidence Amendment (Journalists' Privilege) Bill 2009 (Bill). However, the
provisions of the Bill fall short of achieving those objectives.
Limitations of the object clause
1.2
The committee report endorses the object clause, despite its terminology
restricting recognition of the public interest[1]
and the problematic non-definition of the term 'journalist'.[2]
Liberal senators understand the difficulties associated with defining
'journalist', but consider it necessary for the Bill to more precisely identify
the persons to whom the privilege might apply (for example, bloggers).[3]
1.3
Liberal senators also note the Media Entertainment & Arts Alliance's
call for greater protection of journalist-source confidentiality,[4]
and agree that the substantive provisions of the Bill should do more in this
regard.
Extension of the privilege to journalists
1.4
While Part 3.10 Division 1A of the Evidence Act 1995 (Act) and
the Bill concern the journalist-source relationship, submitters and witnesses
questioned why other professional relationships involving confidential
communications are not granted protection, as is the case in NSW (section 126A
of the Evidence Act 1995 (NSW)) and as was recommended by both the WA
Law Reform Commission and later, the Australian Law Reform Commission:
15.1 The uniform Evidence Acts should be amended to provide
for a professional confidential relationship privilege. Such a privilege should
be qualified and allow the court to balance the likely harm to the confider if
the evidence is adduced and the desirability of the evidence being given. The
confidential relationship privilege available under Part 3.10, Division 1A of
the Evidence Act 1995 (NSW) should therefore be adopted under Part 3.10
of the Evidence Act 1995 (Cth).[5]
1.5
Liberal senators agree that the law ought to recognise the public
interest in professional confidential relationships generally. There is no
reason why journalist‑source relationships should be granted a higher
level of protection than that granted to interests protected by other
privileges (for example, medical, legal and religious practitioners).
Risk of prejudice to national security
1.6
Liberal senators note in passing that new paragraph 126B(4)(j), which
replaces part section 126B(4), requires the court to take into account any risk
of prejudice to national security (as opposed to giving that risk the greatest
weight). Liberal senators question the wisdom of downgrading this provision as:
It is hard to foresee how the reputation of one journalist
could ever be more significant than the genuine security interests of a nation.[6]
Protection provided in the Act
1.7
As noted in the committee report, submitters and witnesses expressed
considerable concern with subsection 126B, a great deal of which related to the
guided judicial discretion.
Guided judicial discretion
1.8
A former Commonwealth Solicitor-General, Mr David Bennett QC has
publicly noted that the guided judicial discretion provides no certainty about
which journalists' sources will receive protection under the Act. He then
remarked, 'the one thing one needs is certainty in advance'.[7]
1.9
Without certainty, potential sources will refrain from approaching
journalists with information that might legitimately be in the public interest.
Alternately, journalists will face a moral dilemma: either not publish a story
in the public interest; or be forced to choose to abide by professional ethical
obligations and possibly be fined, convicted or jailed for contempt of court
for not disclosing confidential sources.
1.10
Both of these scenarios represent the current situation, with
submissions citing several recent, unfortunate and regrettable examples. The
example most often cited was that of Herald Sun journalists Gerard
McManus and Michael Harvey who were convicted and fined for refusing to reveal
their source in a report regarding war widows' pensions.
1.11
Submissions and evidence doubted that the Bill sufficiently protects
journalist-source confidentiality because it maintains a guided judicial
discretion instead of creating a rebuttable presumption in favour of shield
laws, as is the case in the United Kingdom, New Zealand and the United States.[8]
International shield law regimes
1.12
Liberal senators note that the committee report provides a brief
synopsis of section 10 of the Contempt of Court Act 1981 (UK) and
subsections 68(1)-(2) of the Evidence Act 2006 (NZ), both of which are
premised on non-disclosure with a party seeking disclosure of confidential
sources bearing the onus of proving that such disclosure is necessary, as per
the relevant provision.
1.13
In the United States, the Free Flow of Information Act of 2009:HR985
(HR985) has been introduced and passed in the House of Representatives. As at
the time of writing, the bill is before the Senate. If passed, HR985 will
exempt journalists from being compelled to produce documents or provide
testimony unless a court finds that one of the following exceptions applies:
-
the party seeking information has exhausted all reasonable
alternative sources;
-
in criminal investigations or prosecutions, there are reasonable
grounds to believe a crime has occurred and the testimony or document sought is
critical to the investigation, prosecution, or defence;
-
in all other matters, the information sought is critical to the
completion of the matter;
-
in cases where a source's identity could be revealed, the
document or testimony sought is necessary to prevent certain actions, including
an act of terrorism, among others; and
-
the public interest in compelling disclosure of the document or
information involved outweighs the public interest in gathering or
disseminating news information.[9]
1.14
A second version of the Free Flow of Information Act of 2009: S448 (S448)
has also introduced in the Senate. S448 and HR985 are to be concurrently
debated by the Senate Committee on the Judiciary on 7 May 2009.[10]
S448 prohibits a federal entity from compelling a covered person (journalists
and their employers.) to testify or produce any document relating to protected
information unless a court makes specific determinations by a preponderance of
the evidence:
-
all reasonable alternative sources have been exhausted;
-
the testimony or document sought is essential or critical to the
investigation, prosecution or defence of a criminal offence; and
-
non-disclosure would be contrary to the public interest, taking
into account both the public interest in compelling disclosure and the public
interest in gathering news and maintaining the free flow of information.[11]
1.15
Liberal senators note that both proposed United States federal shield
laws are premised on non-disclosure which is rebuttable only in certain
circumstances.[12]
The Act therefore stands in stark contrast to its international counterparts:
...unlike equivalent legislation in New Zealand, the United
Kingdom and the United States, the Evidence Act will not confer any true right
to resist disclosure and will not offer any additional protection than that
already offered at common law under the Newspaper Rule. Therefore, it will not
achieve the Government’s stated legislative intention of strengthening the
protection afforded to journalists.[13]
1.16
Liberal senators particularly note subsection 126B(2). In order for
privilege to apply, this provision requires the court to make a direction on
its own initiative, or for the protected confider or journalist to apply to the
court for that direction.
1.17
Australia's Right to Know queried whether placing the onus on the court
would result in favourable outcomes for journalists' sources:
It's difficult to contemplate the court would actually
exercise the discretion and permit a journalist to maintain the confidentiality
of a source.[14]
1.18
Nonetheless, Australia's Right to Know, other submitters and witnesses
all emphasised that the Act should be substantially amended by the Bill to
incorporate a rebuttable presumption, including an onus on the party seeking
disclosure of a confidential source.[15]
1.19
Liberal senators agree that the Bill, and future legislation purporting
to strengthen journalist-source confidentiality, should do more than maintain
the status quo. Liberal senators do not consider a journalists' protection
reliant upon the exercise of a judicial discretion as a 'true' form of
protection as there is no right for journalists to resist a direction from the
court to disclose the identity of a confidential source.
1.20
This point was raised in evidence and submissions with Australia's Right
to Know, for example, agreeing that, had the Bill been enacted in 2007, it was
difficult to conceive that it would have enabled Gerard McManus and Michael
Harvey to protect their source:
In connection with the criminal trial against Desmond Kelly
for disclosing confidential Department of Veterans Affairs [sic] documents,
Harvey and McManus were convicted in a Victorian Magistrates Court for refusing
to reveal their confidential source leading to publishing of the information.
Had the Commonwealth’s improved model of qualified privilege been in place in
Victoria at the time, the Magistrate would have not been prevented from
exercising his discretion, even though Kelly was allegedly involved in misconduct
in obtaining and disclosing the confidential information.
...
But, given the evidence of Harvey and McManus went to the
guilt or innocence of Desmond Kelly, it is difficult to conceive the Magistrate
would have ruled the public interest in the conviction or acquittal of Kelly
was outweighed by the public interest in the public having access to
information and the media having access to sources.[16]
1.21
Liberal senators consider it untenable that journalists clearly acting
or having acted morally in the public interest could find or have found
themselves in such a position.
1.22
Liberal senators also note advice received from the Attorney-General's
Department (Department) regarding the practical operation of the Bill:
Under both the model proposed in the Bill and the New Zealand
model, the court would be required to determine in each case whether protection
for a journalist's source should apply. A journalist may still be summonsed to
attend court in New Zealand and asked to make submissions as to why they should
have privilege. As such, in their application, there would be little practical
difference in the way these two models would be applied.[17]
1.23
However, supporters of the New Zealand model emphasise the significance
of its onus provisions:
A view that the proposed approach to shield laws in Australia
is substantially equivalent to the New Zealand position is flawed. Rather than
recognising the significant role of the media and the importance of
confidentiality of sources, the proposed changes in Australian law start from
the position which favours forced disclosure of confidential sources. Given
that many disclosures to journalists may technically breach some obligation,
even if of a contract with an employer engaged in wrongdoing, Australian judges
will find it difficult to find that the balance should favour the media and
journalists.[18]
1.24
Liberal senators acknowledge that the committee report endorses the
guided judicial discretion provided in the Act. However, if there is no
practical difference between the judicial discretion and a rebuttable
presumption, as exists in international models and as alluded to in the
Department's evidence, then Liberal senators cannot fathom why the judicial
discretion, a lesser form of journalists' protection, is to be preferred.
Whistleblower legislation
1.25
In the Second Reading Speech, the Attorney-General stated:
...the Rudd government is also currently developing
whistleblower protections which have the capacity to complement journalist
shield laws by providing avenues other than the media for public interest disclosures.
The court has the ability to consider whether the source could have utilised, where
available, laws protecting public interest disclosures. Failure by a source to access
the protections provided by these laws, that is, the whistleblower laws, when introduced
would clearly be a relevant consideration in the court’s determination of whether
the confidential communication between the journalist and source should be privileged.[19]
1.26
While the Committee did not inquire into either existing or proposed
whistleblower legislation, Liberal senators note comments regarding the
legislative interaction between journalists' protection and whistleblowers'
protection.[20]
1.27
Liberal senators also refer to the arguments of Chris Merritt in The
Australian. Mr Merritt writes that if whistleblowers shun new
whistleblowers' legislation, it will undermine the effectiveness of journalists'
shield laws:
Unless the material they pass to the media concerns a threat
to public health or safety – and the threat is immediate and serious – they
lose their protection under the whistleblower scheme. And they also stand to
lose protection from the proposed shield law for journalists' sources.[21]
1.28
Former NSW Supreme Court judge, David Levine warned that there were so
many overlapping areas of law involved in protecting journalists' sources that
'unless a package that covers privacy, whistleblowers and privilege can be
developed, the problem will be insoluble.'[22]
1.29
Liberal senators agree with the Attorney-General that the Bill should
complement whistleblowers' legislation, but express disappointment in that the
two pieces of legislation were not concurrently introduced for comprehensive
consideration.
Application of the proposed privilege
1.30
The Bill proposes to extend the privilege to all proceedings in any
Australian court for an offence against a law of the Commonwealth. This
amendment coincided with the Standing Committee of Attorneys‑General
(SCAG's) consideration of journalists' privilege provisions in the model
Uniform Evidence Bill.
1.31
Upon conclusion of its April 2009 meeting, the Attorney‑General
publicly announced that the states/territories had agreed to endorse a key
component of the Bill (new public interest factors) and that, 'the standing
committee's agreement has been reported to the senate legal and constitutional
affairs committee.'[23]
1.32
Liberal senators note that there is a long‑standing agreement
between members of SCAG that its formal decisions cannot be made public with
the agreement of SCAG ministers.[24]
Liberal senators therefore understand why the Attorney-General's communication
must remain confidential. However, Liberal senators wish to place on record
that being unable to publicly consider that confidential communication makes it
difficult to fully evaluate the evidence put to the committee, particularly
that concerning the interaction between Commonwealth and state/territory
evidence law regimes.
1.33
Notwithstanding SCAG's April 2009 agreement, the WA Attorney‑General,
for example, has reiterated concerns presented in his submission: namely, that
the Bill creates two contradictory evidentiary regimes in each state/territory;[25]
that the Bill does not satisfactorily address the issue of whistleblowers; and
that the Commonwealth has pre-empted SCAG deliberations:
There was, in essence, an agreed model which was somewhat
along the lines – with some modifications – of what exists in NSW. All we needed
was for the Commonwealth to sign on to that model. But instead of waiting for
the final development of what looked to be unanimous agreement, they simply
overrode the process entirely and tabled legislation in federal parliament. The
first we heard of it was literally the tabling.[26]
1.34
Liberal senators note the WA Attorney-General's rejection of the
Commonwealth shield law as a model for Western Australia.
Recommendation 1
1.35
Liberal senators recommend that the Bill be amended to create:
Senator Guy Barnett
Deputy Chair
Senator Russell Trood
Senator
Mary Jo Fisher
Navigation: Previous Page | Contents | Next Page