CHAPTER 1


CHAPTER 1

INTRODUCTION

Background

1.1        On 15 November 2010, the Senate referred the Evidence Amendment (Journalists' Privilege) Bill 2010 (a private member's bill introduced by Mr Andrew Wilkie MP) and the Evidence Amendment (Journalists' Privilege) Bill 2010 (No. 2) (a private senator's bill introduced by Senator the Hon George Brandis SC) to the Senate Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 23 November 2010.

1.2        Both of these Bills seek to amend the Evidence Act 1995 (Cth) (Evidence Act) so that the journalists' privilege not to give evidence is afforded stronger protections, thereby ensuring that journalists' informants are given a higher likelihood of confidentiality. Both Bills contain identical provisions on the substantive issues and are identical in effect with respect to journalists' privilege. However, the Brandis Bill broadens the privilege beyond journalists to create a more general 'professional' privilege, in the form of a judicial discretion.[1]

1.3        A shield law, or journalists' privilege, is intended to provide journalists with the right to refuse to give evidence in order to protect the confidentiality of their sources of information. Information is often made available to journalists only on the condition that the identity of source is kept confidential. Clause 3 of the Australian Journalists Association Code of Ethics provides that journalists must:

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.[2]

1.4        The issue of journalists' privilege was highlighted in 2006-07, when two journalists, Mr Gerard McManus and Mr Michael Harvey refused to divulge the source of their report that a former minister had ignored a recommendation to increase war veterans' benefits by $650 million, and had instead presented cabinet with a plan to spend only $150 million. In June 2007, Mr Harvey and Mr McManus were each fined $7000 for contempt of court.[3]

Legislative history

1.5        In 2007, the Howard government amended the Evidence Act to introduce a limited professional confidential relationship privilege for journalists.[4] This privilege, contained in Part 3.10, Division 1A of the Evidence Act, provides that a court may direct (on its own initiative or upon application) that relevant evidence not be adduced in proceedings. The court must give such a direction if a protected confider (a person who has made a protected communication to a journalist) would be harmed by the adduction of the evidence, and that harm outweighs the desirability of taking that evidence. However, the court may still adduce evidence if the communication involves misconduct. Factors that the court is to take into account are also listed, including:

  • the probative value and importance of the evidence;
  • the nature and gravity of the offence, defence or cause of action and subject matter of the proceeding;
  • the availability of other evidence;
  • the likely effect of adducing the evidence on the protected confider;
  • the means available to the court to limit harm likely to be caused;
  • if a criminal matter, whether prosecutor or defendant is seeking to adduce the evidence; and
  • whether the substance of the protected confidence or protected identity has already been disclosed.

1.6        The court must also take into account, and give the 'greatest weight', any risk of prejudice to 'national security'. Finally, the court must state its reasons for giving or refusing to give a direction under this section.

1.7        In 2009, the Rudd government introduced the Evidence Amendment (Journalists' Privilege) Bill 2009 (2009 bill). The 2009 bill provided for the insertion of an objects clause in Division 1A and amendments to the list of factors the court must consider. The 2009 bill also provided that the court must consider the prejudice to 'national security' but that this was no longer to be given the 'greatest weight'. Finally, the 2009 bill would have extended the applicability of the privilege to cover Commonwealth criminal matters in all Australian courts. The 2009 bill was not passed by the Senate and lapsed on the prorogation of the 42nd Parliament.[5]

Evidence Amendment (Journalists' Privilege) Bill 2010

1.8        On 28 September 2010, the Attorney-General, the Hon Robert McClelland MP, Mr Wilkie and Senator Nick Xenophon released a joint media release. This media release announced that the Australian Government would support a private member's bill put forward by Mr Wilkie and Senator Xenophon which 'would provide additional protection for journalists and their sources'. It also noted that the government had previously introduced amendments to the Evidence Act based on the agreed model by the Standing Committee of Attorney's General on uniform shield laws (the 2009 bill).[6]

1.9        The Evidence Amendment (Journalists' Privilege) Bill 2010 (the Wilkie Bill) was introduced into the House of Representatives on 18 October 2010 and passed on 28 October 2010. The Bill was introduced into the Senate on 15 November 2010 by Senator the Hon Mark Arbib, Minister for Sport. During the second reading debate for the Bill, Senator Brandis moved the following amendment:

...[that] the bill, together with the bill of the same title introduced by Senator Brandis on 29 September 2010, be referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 23 November 2010.[7]

1.10      This amendment was put and passed.

Evidence Amendment (Journalists' Privilege) Bill 2010 (No. 2)

1.3       As noted above, the Evidence Amendment (Journalists' Privilege) Bill 2010 (No. 2) (the Brandis Bill) was introduced into the Senate on 29 September 2010 by Senator Brandis. Although the Brandis Bill was introduced into the Parliament before the Wilkie Bill, the numbering arrangements have resulted in the Brandis Bill being the Evidence Amendment (Journalists' Privilege) Bill 2010 (No. 2).

Conduct of the inquiry

1.11      Details of the inquiry, the Bill and other associated documents were placed on the committee's website. The committee also wrote to a number of organisations and individuals, inviting submissions by 18 November 2010.

1.12      The committee received seven submissions, which are listed at Appendix 1. All submissions, apart from one that was accepted on a confidential basis, were published on the committee's website.

1.13      The committee held a public hearing in Canberra on 18 November 2010. A list of witnesses who appeared at the hearing is at Appendix 2, and copies of the Hansard transcript are available online at https://www.aph.gov.au/hansard.

Acknowledgement

1.14      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Scope of the report

1.15      Chapter 2 provides a brief outline of the key provisions of both Bills, and Chapter 3 discusses the key issues raised in submissions and evidence.

Note on references

1.16      References in this report are to individual submissions as received by the committee, not to a bound volume. References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

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