Additional comments by the Australian Greens
1.1
The Australian Greens believe that a strong and independent press is an
essential safeguard for a democratic society.
1.2
The Greens recognise that the overwhelming balance of submissions to
this committee favour greater journalist-source confidentiality protection. The
committee’s report acknowledges that most submissions favour a rebuttable
presumption of journalists’ privilege, such as exists in other like-minded
democratic countries.
1.3
The committee notes in paragraph 3.60 that 'there are alternate shield
law regimes in the United Kingdom, New Zealand and even the United States, none
of which is identical, and on the basis of the evidence before it, the
committee cannot say that any one of these models is superior to the others.'
1.4
This statement neatly misses the point made in most submissions: all of
these regimes are superior to the model operating in Australia, because all of
them have as their starting point the protection of journalist-source
confidentiality. All of the media organizations who made submissions or gave
evidence supported many of the amendments in this Bill but clearly stated that
the Bill had not fulfilled the government’s stated intentions in the crucial
matter of protection of confidentiality.
1.5
In evidence given to the committee on 28 April 2009, Ms Catherine Fitch,
the Acting Assistant Secretary, Administrative Law and Civil Procedure Branch
of the Attorney-General’s Department noted that:
I do not know that in operation there would be a significant
difference between the way this privilege plays out and the way a presumption
such as occurs in the New Zealand Evidence Act would operate.[1]
1.6
In other words, the government intends for the law to operate in much
the same way as in jurisdictions where a rebuttable presumption of
confidentiality exists. This being the case, it is the view of the Australian
Greens that the Bill should express this principle clearly to put the matter
beyond doubt.
1.7
Doctor Joseph Fernandez identified one means of doing this, proposing
the inclusion of a statement such as the following:
In exercising its discretion as to whether to compel
disclosure from a journalist to reveal his or her confidential source, the
court should give particular attention to the importance of facilitating
greater transparency, openness and accountability in Government.[2]
Recommendation 1
1.8
That the bill be amended to introduce a rebuttable presumption in favour
of maintenance of journalists’ privilege.
1.9
During the hearings a number of concerns were raised about the
definitions pertaining to ‘journalists’ and ‘media’, with regard to the
proliferation of blogs and independent ‘citizen journalists’ and the diffusion
of the role traditionally played by accredited journalists in the mainstream
mass media.
1.10
The Public Interest Advocacy Centre (PIAC) submission canvassed these
issues well, including an amendment to proposed section 126AA to make clear
that the Bill and its protections should apply to anyone engaged in
journalistic work in the broadest sense. In evidence given to the committee, Ms
Fitch of the AG’s Department acknowledged that the Evidence Act is somewhat
ambiguous in this regard:
Senator, I think this bill would apply where the journalist
was acting in a professional capacity and where there was an express or implied
obligation to keep some particular information or their identity confidential.
As you can no doubt appreciate, there is an almost infinite variety of possible
relationships in this day and age, some of which may be captured and others of
which may not.[3]
1.11
The Greens support PIAC’s recommendation that the scope of the
legislation be clarified to include a broader definition of what is meant by a
‘journalist’.
Recommendation 2
1.12
That the bill be amended to ensure that the scope of protections offered
is not arbitrarily narrowed to traditional journalists working for established
media.
1.13
The Australian Associated Press submission makes a number of comments
relating to apparent ambiguities in the Bill relating to the definition of
‘prior disclosure’, the status of communications which would be considered to
be unlawful, and makes proposals to make provision for partial disclosure of
information where this would be sufficient for the purpose of satisfying the
interests of justice in court proceedings. The Australian Greens encourage the
government to consider these proposals.
1.14
Similarly, on page 2 of the PIAC submission it is suggested:
...Division 1A of the amended Act should make it clear beyond
argument that the privilege applies not only to communications the content of
which is (sic) journalist is under a duty not to disclose, but to
communications in relation to which a journalist’s duty is limited to
protecting the source (while being at liberty to disclose content).[4]
1.15
The government has stated that this Bill has been advanced with the
intent of strengthening the role that media organizations can play in
democratic accountability. The Greens believe that the Bill currently falls
short but that with a small number of simple amendments it can make a genuine
contribution in this regard.
Senator Scott Ludlam
Australian Greens
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