Evidence Amendment (Journalists’ Privilege) Bill 2010

Evidence Amendment (Journalists’ Privilege) Bill 2010

Text of bill

Explanatory memorandum

Mr WILKIE (10:17 AM) —I move:

That this bill be now read a second time.

Whistleblowers have an important role to play. Obviously, they reveal misconduct and often they do that from privileged positions behind closed doors from where there is next to no hope that the normal processes of government and administration will spot and report on that misconduct. In other words, whistleblowers are an essential safeguard of the public interest, which needs to be recognised as such. Whistleblowers often act openly—for example Toni Hoffman, the Queensland nurse, who bravely lifted the lid on Dr Patel’s deadly transgressions at Bundaberg Base Hospital. Dr Patel was the chief of surgery at Bundaberg Base Hospital, between 2003 and 2005 and was found guilty of the manslaughter of three patients and of grievous bodily harm of a fourth patient. But, despite the seriousness of Toni Hoffman’s allegations, and the fact that she was ultimately vindicated, Toni Hoffman was ridiculed and eventually forced to go outside the Queensland health system and raise her concerns with her local member of parliament, Mr Rob Messenger. Messenger, also facing ridicule over the matter, eventually had to rely on the Courier Mail newspaper to get the Queensland government to intervene in the Bundaberg Hospital tragedy.

Many of the costs of whistleblowing are illustrated by the Toni Hoffman case. Certainly, many whistleblowers lose their job, lose a profession and lose their family and many of their friends. Sometimes they find themselves subject to legal proceedings and, in Australia, under the Crimes Act a current and former federal public servant can be jailed for up to two years for revealing any information he or she finds in the course of his or her employment. And, unsurprisingly, the rate of suicide among whistleblowers is above the national average. So there is clearly a need for legislation to protect whistleblowers, and I applaud the Prime Minister for her commitment to progress such legislation in the term of this parliament.

Very importantly, not every witness to official misconduct is able or willing to speak publicly, as was Toni Hoffman. Sometimes whistleblowers choose to break ranks anonymously, which is unsurprising considering the punishment meted out publicly to those whistleblowers who do opt to out themselves. An extraordinary example is former Customs Officer Allan Kessing, who, in 2007, was convicted of leaking a secret report into security flaws at Sydney airport. The publication of the report forced the Howard government to spend $200 million remedying the flaws. Despite that, Mr Kessing was convicted, under Section 70 of the Crimes Act, of making an unauthorised disclosure of government information to The Australian newspaper. This episode has left Mr Kessing a broken and broke man. I would hope that this or future governments find it in themselves to revisit his case one day. After all, he was just trying to do the right thing.

An equally remarkable case occurred in 2004, when two senior political reporters for Melbourne’s Herald Sun newspaper, Michael Harvey and Gerard McManus, wrote stories which exposed a decision by the Howard government to reject a $500 million increase in war veterans’ entitlements. During legal proceedings against the alleged source of the story the journalists refused to identify their source, thus putting them in contempt of the court and facing possible imprisonment. That was an extraordinary situation, not least because the actions of Harvey and McManus were entirely consistent with the Australian Journalists Association Code of Ethics, which provides that journalists should:

Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.

As it turned out Harvey and McManus were convicted of contempt of court and fined $7,000 each for refusing to reveal their source behind the stories they wrote, even though this was a clear example of when journalists would not have otherwise been able to report on the actions of the government without their source, who, had he or she been revealed, almost certainly would have suffered harm. I would add that these convictions are set to stay with these two men for life, a not insignificant burden for anyone, let alone for journalists who might seek to travel internationally as part of their work. The Harvey and McManus case, perhaps more than any other, highlights the need for legislation to protect journalists who publicise information from anonymous sources. In other words there is a pressing need for the so-called ‘shield law’ outlined in Evidence Amendment (Journalists’ Privilege) Bill 2010.

The Evidence Amendment (Journalists’ Privilege) Bill 2010 amends the Evidence Act 1995 by strengthening the protection provided to journalists and their sources. It is intended to foster freedom of the press and better access to information for the Australian public. The bill provides that if a journalist has promised an informant not to disclose his or her identity, then neither the journalist nor his or her employer is compelled to answer any question, or produce any document, that would disclose the identity of the informant or enable their identity to be ascertained. The bill is based on the premise that every member of the community has the fundamental right to free speech, and that sometimes the exercise of that right needs to be undertaken anonymously, especially when it comes to people speaking out about official misconduct, as whistleblowers do.

Of course, safeguards are essential with legislation like this. Sometimes so-called whistleblowers are in fact disgruntled employees making vexatious claims. Sometimes a disclosure is arguably reckless or dangerous, as some people would regard the latest Wikileaks revelations about the Iraq war. So this bill does recognise that there may be circumstances where the public interest in the disclosure of the identity of the source is so strong that it should be provided to the court. In such cases it will be up to those parties who want to force a journalist to reveal their source to prove that the public interest is best served in disclosing the source, and that the public interest benefit of a disclosure genuinely outweighs the likely harm to the source. The legislation would only apply to people for whom journalism is their main occupation. Occasional commentators, for example recreational bloggers, would not be covered.

This bill will replace the existing provisions in Division lA of the Evidence Act. It will include a new provision that provides clear authority for a presumption that a journalist is not required to give evidence about the identity of the source of their information. This presumption can be rebutted in circumstances where the public interest outweighs any likely adverse effect for the person who provided the information to the journalist, as well as the public interest in communication of information to the public by the media. These amendments are based on similar provisions in the New Zealand Evidence Act 2006.

Central to Australia’s democracy is freedom of both speech and the press. I believe that this bill goes some way, an important way, to protecting both. I would like to take this opportunity to thank the Attorney-General for the government’s commitment to this bill. I would also like to acknowledge the opposition’s longstanding commitment to so-called ‘shield’ laws, as well as the significant public response to this bill in particular. I hope that this bill will be an early display of bilateral cooperation in this place. It would certainly be in the public interest for that to be the case. Thank you, Mr Speaker.


Posted on

October 18, 2010

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