Evidence Amendment (Journalists’ Privilege) Bill 2009

It is a curious position that we are faced with here in that the member for Farrer, representing those opposite, has now indicated—apparently basing her speech on the report of the Senate Standing Committee on Legal and Constitutional Affairs, which contains a section written by the Liberal senators who are members of the committee—that there are to be amendments moved in the Senate to the Evidence Amendment (Journalists’ Privilege) Bill 2009. We are told that we have to await those amendments to see what the detail is as to exactly how the Liberal Party proposes that the balance should be differently struck.

—It is a curious position that we are faced with here in that the member for Farrer, representing those opposite, has now indicated—apparently basing her speech on the report of the Senate Standing Committee on Legal and Constitutional Affairs, which contains a section written by the Liberal senators who are members of the committee—that there are to be amendments moved in the Senate to the Evidence Amendment (Journalists’ Privilege) Bill 2009. We are told that we have to await those amendments to see what the detail is as to exactly how the Liberal Party proposes that the balance should be differently struck.

It is striking, Mr Acting Deputy Speaker, because as recently as 2007 in this place the then Attorney-General, the member for Berowra, introduced amendments to the Commonwealth Evidence Act that, according to the member for Berowra, were an appropriate balance of the conflicting—and recognised as conflicting—public interests which arise here. I will come back to this, but it is also striking that, despite the Liberal senators stating in categorical terms in their passage in the report of the legal and constitutional affairs committee that they did not favour protection for journalists’ sources which is reliant on the exercise of discretion, we now hear from the member for Farrer—and indeed we read this in the conclusion expressed by the Liberal senators in the Senate report—that all they really want, it would seem, is a different striking of the balance. It is worth putting this on the record, Mr Speaker.

What the Liberal senators said was this:

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.

As I have indicated, it is curious that in their recommendations we see nothing that suggests that the exercise of judicial discretion should be removed from the legislative scheme to protect journalists’ sources, but rather a suggestion that not only should the protection be broadened to a similar basis as that used in the New South Wales Evidence Act, which protects professional confidential relationships rather than merely journalists’ sources, but also there should be:

… a rebuttable presumption in favour of journalist-source confidentiality.

That is not in any sense a proposal by the Liberal senators in their report that there should not be a judicial discretion to be exercised in the exercise of protection of journalists’ sources. I say again that we will have to wait to see how it is that the Liberal Party, jettisoning the position that it adopted as recently as 2007 as to the appropriate balance for journalist shield laws, is now saying, through its senators, that it does not wish to have a system that includes a judicial discretion and saying in this House, through the member for Farrer, that amendments are to be moved in the Senate. We will have to wait to see what those amendments say.

I wanted to see today whether it is possible to put some of the extraordinarily confused commentary that we have seen about journalist shield laws, and about the interaction between journalist shield laws and whistleblower protection schemes, into a somewhat clearer context. It might be that that task is going to prove too difficult, but it is worth attempting because it seems to be recognised by even the Liberal senators, by Senator Xenophon, who participated in the report, and by the Australian Greens that this is an area of considerable complexity. It is an area in which striking the appropriate balance is difficult, and one in which, dare I say, it is appropriate for this parliament to proceed with caution.

I would start by saying that there are very few absolute immunities in the sense of immunity from criminal prosecution and from civil proceedings in Australian law. There is, of course, the longstanding absolute immunity that is enjoyed by members of this House and of the Senate from criminal and civil proceedings. That is an immunity that this parliament has inherited from the United Kingdom, an immunity that has been enjoyed since 1688 by the members of the parliament of the United Kingdom, having been included as article 8 of the Bill of Rights 1688. There is another absolute immunity, which would be the privilege attached to court proceedings and judges. Or one could refer to the absolute privilege that attaches to communications between clients and their lawyers. But much more usually in Australian law immunities and privileges are qualified. An example would be the qualified privilege which attaches to speaking out about government and political matters, which might provide a defence from proceedings for defamation. A further example would be a protection that applies, again in defamation proceedings, to reports to police or to other socially useful communications that are recognised by the law as being appropriately privileged.

In relation to journalists’ sources the common law of Australia has up until now steadfastly declined to recognise a privilege for journalists. There are some very well known judicial decisions which express that refusal to confer immunity on journalists in respect of disclosure of their sources. One of the best known is a 1940 decision by Sir Owen Dixon before he was Chief Justice, but sitting on the High Court, in a case called McGuinness v the Attorney-General of Victoria. It is worth recording what Sir Owen Dixon said on the subject because it very directly states the position that has been adopted by Australian courts for very many years. Justice Dixon said:

No one doubts that editors and journalists are at times made the repositories of special confidences which, from motives of interest as well as of honour, they would preserve from public disclosure, if it were possible. But the law was faced at a comparatively early stage of the growth of the rules of evidence with the question how to resolve the inevitable conflict between the necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person. Except in a few relations where paramount considerations of general policy appeared to require that there should be a special privilege, such as husband and wife, attorney and client, communications between jurors, the counsels of the Crown and State secrets, and, by statute, physician and patient and priest and penitent, an inflexible rule was established that no obligation of honour, no duties of non-disclosure arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box. Claims have been made from time to time for the protection of confidences to trustees, agents, bankers, and clerks, amongst others, and they have all been rejected.

Moving forward, that position has been maintained by Australian courts, and one could look at a case called John Fairfax and Sons v Cojuangco. This is the 1988 decision of the High Court where Chief Justice Mason and Justices Wilson, Deane, Toohey and Gaudron restated the opposition of the common law to conferring any kind of absolute immunity or absolute privilege on journalists. It was a case concerning the disclosure of a journalist’s source. Again starting with a lack of doubt, Their Honours had this to say:

No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information. It stands to reason that the free flow of information would be reinforced, to some extent at least, if the courts were to confer absolute protection on that confidentiality. But this would set such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media.

That is why the courts have refused to accord absolute protection on the confidentiality of the journalist’s source of information, whilst at the same time imposing some restraints on the entitlement of a litigant to compel disclosure of the identity of the source. In effect, the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice.

There you see the balancing that the courts have engaged in, moving by 1988 to a situation where at least it was possible for a journalist to withhold the identity of the source of information that the journalist had used and published for at least some time in the course of litigation.

Might I say also that the premise that perhaps underlies the proposition that it is always the case that if journalists’ sources are disclosed it will necessarily lead to the drying up of such confidential communications is not one that has been uniformly accepted by Australian courts. I was struck that in the sentencing judgment of His Honour Chief Judge Rozenes in the County Court of Victoria in imposing—it would seem fairly reluctantly—a penalty on the journalists McManus and Harvey in 2007, Chief Justice Rozenes quoted from a judgment of Justice Perry in the South Australian Supreme Court about this on the same subject, to this effect:

I must say that I have considerable hesitation in accepting the proposition that obliging journalists to disclose their sources of information has a tendency to restrict the flow of information which otherwise might reach them. The law has been so clear for so long that it is a reasonable assumption that potential sources of information already realise that any such undertaking must yield to the requirements of the interests of justice where those interests are regarded by the courts as paramount.

I have dealt with that matter at some length simply to say that this is the context for considering the journalists’ shield or journalists’ privilege proposal which is contained in the Evidence Amendment (Journalists’ Privilege) Bill 2009. At common law there is no protection or lawful excuse under which a journalist can refuse to answer questions, and until the New South Wales Evidence Act was amended in the late 1990s to include, in sections 126A and 126B, a ‘confidential relationship’ privilege there was no state or federal law that provided any statutory protection either.

This subject has been debated at very considerable length in recent years. I note that part of the debate has included a suggestion that whistleblowers’ protection and journalists’ shield laws are closely connected. I would say that that is so only if one sees whistleblowers entirely through the prism of disclosure through the media. The House of Representatives Standing Committee on Legal and Constitutional Affairs—the committee, Mr Deputy Speaker Slipper, of which you are the deputy chair—in a report tabled in February in this House proposed a comprehensive whistleblower protection scheme. It has been welcomed by many interested groups, including the Community and Public Sector Union, whose members would be most directly affected. That scheme proposes to protect disclosures of wrongdoing and maladministration in the public sector, and in particular protection for reports within an agency and protection for reports to integrity agencies outside the particular agency, like the Commonwealth Ombudsman. It also proposes limited protection for disclosures that go through the media. That is a reflection of the committee’s view that disclosure to the media is not the preferred method of disclosure for most public servants and that a procedure of internal disclosure and investigation is more likely to give effect to the purpose of all public interest disclosure schemes, which is to eliminate wrongdoing and maladministration.

Perhaps understandably, some of the media commentary has focused on proposals concerning the protection of disclosure to the media and has suggested that there ought to be protection for disclosure to the media which covers a larger range of matters. The government will be considering those comments and submissions in formulating the legislation in coming months, but it is important to understand that only part of the whistleblower protection scheme is concerned with disclosure to the media. There is no scheme of whistleblower protection in the developed world which gives blanket protection to disclosures made by public servants to the media, and I do not think that anyone would suggest it. The question is about where to strike the balance.

Journalist shield laws are concerned with protecting all sources of information that is provided to journalists, no matter what the subject matter is. While it may be the case that some journalists’ sources will be public servants who wish to disclose maladministration and wrongdoing in the public sector, journalist shield laws have much wider reach than that. So there is a connection between the two proposed laws but it is a limited one. Whistleblower protection schemes for the public sector need to focus on administrative processes and need to produce a workable regime for reporting and investigation of wrongdoing. Journalist shield laws, being of general application, are not focused on the public sector alone or only on public servants as potential sources. What the two proposed laws—that is, whistleblower protection schemes in the public sector and journalist shield laws—have in common is a need to balance competing policy objectives. It is obvious that there is room for debate about where the balance should be struck. What does not seem to be an issue—and it is the only manner which anyone has come up with for providing protection for journalists’ sources—is that it will involve the exercise of judicial discretion.

The question of protection of journalists’ sources, a shield for journalists, was considered at considerable length by a joint inquiry conducted by the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission which reported in December 2005. Part of what concerned those law reform commissions was the need for uniformity of evidence law across Australia, which of course is highly desirable but has proved to be very difficult to achieve. The recommendations of that 2005 joint report by the law reform commissions were for the extension of the notion of professional confidentiality, or protected confidence privilege—not confined to the protection of journalists’ sources but, rather, directed at all professional confidential relationships. The recommendations of the joint report of the law reform commissions were very much based on continuing judicial discretion and on listing factors which are appropriate to be considered by a judge in considering whether or not to direct the disclosure of a journalist’s source.

The Liberal Party in government, in 2007, did not accept the recommendations of the joint report of law reform commissions, and that is why we have in the Commonwealth Evidence Act the provision which is proposed to be amended by the bill now before the House. It would appear that the provision, introduced by the then Liberal government in 2007, is now condemned by those opposite as being inadequate. Again, we will have to wait for reasoned argument and explanation and, indeed, will need to look at the amendments that are produced in the Senate by the Liberal Party, but it would seem, listening to the member for Farrer, that on no view is the Liberal Party now supporting the position that it adopted only two years ago, in May 2007. It remains the case that consideration of an appropriate journalist shield is about getting the balance right. This bill does get the balance right. Even the Right to Know coalition, in the submission that it made to the Senate Standing Committee on Legal and Constitutional Affairs, noted that this bill represents ‘significant and welcome improvement’.