CHAPTER 3
KEY ISSUES
3.1
Chapter 3 discusses the key issues raised in submissions and evidence
during the committee's inquiry.
Broad support for New Zealand model
3.2
In the submissions received by the committee, there was broad support
expressed for the approach, taken in both Bills, to adopt the New Zealand model
of creating a rebuttable presumption that the confidential relationship between
a journalist and their source should be protected.
3.3
For example, Australia's Right to Know (ARTK) noted that both Bills propose
a new model for protection of journalists' sources which it supports:
ARTK is strongly in favour of a rebuttable presumption, where
a journalist is not compelled to answer questions or produce documents that
would disclose a protected confidence or protected identity unless the party
seeking disclosure rebuts the presumption by establishing that any harm likely
to be suffered by the journalist, the confider or any other individual, as well
as any harm to the public interest in freedom of the press and media access to
sources is outweighed by the necessity for the information to be disclosed in
the interests of justice.[1]
3.4
Similarly the Australian Press Council commented that, notwithstanding
the differences between the Bills, 'the immediate passage of either Bill
through the Parliament would ameliorate the situation where journalists can be
unnecessarily exposed to convictions and make the default position a respect
for their ethical responsibility to protect the confidentiality of their
sources'.[2]
In particular:
The existing Australian laws, state and federal, leave open
what might happen. At best they suggest that judges 'may' take into account the
desirability of not calling professionals (in this case, journalists) to reveal
sources. This leaves journalists vulnerable to legal fishing expeditions that
may make them subject to contempt of court charges for failure to divulge sources,
simply, in most cases, because the litigants are unwilling to do the work to
unmask the sources. In short, the existing legislation is no real protection at
all.[3]
Whistleblower protection
3.5
Mr Peter Bennett, the National President of Whistleblowers Australia,
considered the approach of the Bills to be a 'small step' towards protecting
people who disclose information in the public interest, however it was
questionable whether it provided 'suitable protection to those whistleblowers
who are the source of the information'. He argued there was a risk the approach
in the Bills 'could lead naïve whistleblowers into a false sense of security,
and thus leave them extremely vulnerable to other adverse action, which could
place their livelihood, career, health and well-being in serious jeopardy'.[4]
3.6
Mr Bennett suggested a number of amendments to the Bills to further
protect whistleblowers, including:
- that journalists must provide 'informed advice' to their sources
of 'potential risks in breaching criminal or other laws or facing common law
action'; and
- section 126D be clarified regarding the pre-eminence of 'public
interests' in order that 'courts take into account not only the likely adverse
effect on the individual whistleblower but on the national culture of
disclosing wrongdoing.[5]
3.7
Similarly Mr Jack Herman, Executive Secretary of the Australian Press
Council, commented that 'the coin of sources has an obverse side, which is
protection of public interest disclosures or whistleblower protection'. He
suggested that, if whistleblower protections existed, 'fishing expeditions
through journalists' work material would not be required'.[6]
However, he considered the Bills would be effective in situations where 'a
prosecutor is unable to completely prove his case and attempts to do so by
forcing a journalist or journalists to dob in someone who is alleged to have
been their source'. [7]
Defining journalism
3.8
The scope and limits of the application of the Bills was a key point of
discussion during the public hearing. The definitions of 'journalist', 'news
medium' and 'informant' in both Bills replicate those in subsection 68(5) of
the Evidence Act 2006 (NZ). The EM to the Wilkie Bill suggests that
these definitions limit the coverage of the proposed protection:
It is also significant to note that the journalist should be
operating in the course of their work. This means that the journalist should be
employed as such for the privilege to operate, and private individuals who make
postings on the internet or produce non-professional news publications, where
this is not their job, will not be covered by section 126H.[8]
3.9
Similarly, the EM to the Brandis Bill notes that it is 'not intended
that a claim for privilege could be made in respect of disclosures to a
non-journalist that might be opportunistically relayed to a news medium outside
the normal course of that person's work'.[9]
3.10
Mr Jack Herman from the Australian Press Council highlighted the difficulties
in relation to defining the term 'journalist'. He explained:
We do not define a 'journalist' so much as 'journalism',
which we see as engaged in inquiry...leading to publication of material by, a
media organisation or a news organisation—of news, current affairs or a
documentary nature. The definition is very wide. It needs to necessarily be
wide nowadays, because journalism has become a much wider field and includes
things such as photojournalism, video journalism, audio journalism, online
journalism and a whole lot of other areas.[10]
3.11
Mr Jonathan Este, Communications Director for the Media Entertainment
and Arts Alliance, highlighted the speed at which online tools for journalism
evolve, stating that if definitions in the Bills are too prescriptive 'that is
going to lead...into difficulties up the track'.[11]
3.12
ARTK supported the definition of 'journalist' used in both Bills 'on the
basis that it does not seek to introduce a restrictive statutory term leaving it
largely to its ordinary meaning'. In its view, this is 'an effective mechanism
for excluding those who are not acting in good faith'.[12]
ARTK also noted that the definition in the Bills allows a court to take a case
by case approach to determining whether or not something is journalism:
The concept of a journalist and journalism has and continues
to change over time and it will continue to do so. It is important it applies
in a technologically neutral way and that a journalist would be included in the
definition regardless of who they are or in what medium they publish. This
definition achieves that.[13]
3.13
The relationship between each part of each of the Bills was also
highlighted as significant in interpreting the scope of application. At the
public hearing, Ms Creina Chapman from the ARTK commented that determinations
regarding who the Bills will apply to will relate to both the definitions of
'journalist' and 'news medium'. She argued '[w]here it is published will make a
considerable difference'.[14]
A representative from the Attorney-General's Department (Department) also noted
the protection in both Bills only 'applies where a journalist has promised an
informant not to disclose [their] identity'.[15]
3.14
The challenge of determining how the definitions of 'journalist', 'news
medium' and 'informant' would operate for the purposes of the Bills was
illustrated by discussion during the public hearing regarding the example of
Wikileaks, a website dedicated to publishing whistleblower information
anonymously.[16]
Mr Herman of the Australian Press Council stated that 'most people would regard
Wikileaks or some sort of aggregations of raw material like that as not being a
news medium but something of an intermediary between information and the
public'.[17]
However, representatives of the ARTK considered the actions commonly undertaken
by Wikileaks would be 'journalism' because of the acts of obtaining documents
and selecting 'what to put up'.[18]
3.15
While supporting the approach in the Bills, Professor Mark Peterson, a
journalism academic at Bond University, also considered that the definition of
'journalist' could be broadened to encompass 'journalism academics, retired
journalists, freelance journalists and journalism students'. He proposed this
could be achieved by deleting 'who in the normal course of that person's work'
from the definition of 'journalist'. He explained:
Many journalism educators produce high quality investigative
journalism, either in book, feature or news form, although this may be
occasional and not 'in the normal course of their work'. Further, journalism
students at scores of tertiary programs throughout the country produce high
quality media products, often featuring investigative stories which might rely
on confidential sources, and often on an unpaid basis. The above groups
invariably ascribe to the same ethical codes as working journalists.[19]
3.16
Mr Ken Parish, a legal academic at Charles Darwin University, disagreed
with the view that the protection in the Bills should be extended to cover
amateur bloggers and 'citizen journalists', rather than just professional journalists.
He noted that, while professional journalists are not subject to professional
disciplinary proceedings, their profession has a code of ethics and there is 'a
clearly identifiable peer group or "community of practice"' which
encourages journalists to behave ethically.[20]
A telecommunications loophole?
3.17
Mr Parish strongly supported both Bills, but advocated that the
rebuttable presumption/qualified immunity they create should apply more
broadly. In particular, he submitted it should apply to protect journalists'
telephone and email records from access by law enforcement agencies. Mr Parish
highlighted the recent investigation of a suspected leak by a police officer to
a journalist in the Northern Territory which, he argued, indicated a
significant loophole in Commonwealth law, undermining the efficacy of the
Bills.[21]
During the investigation, Northern Territory police utilised section 178 of the
Telecommunications (Interception and Access) Act 1979 (Cth) (TI Act) in
order to access the journalist's phone records to identify the alleged leaker. He
explained:
...s.178 as it presently stands allows any law enforcement
agency to access the records of any journalist whenever it sees fit for the
purpose of investigating any suspected breach of the criminal law however
trivial, including an alleged breach of the criminal law consisting solely of
the act of "whistleblowing" to a journalist itself. Police, public
servants or teachers who "leak" to a journalist will almost always be
committing some sort of offence against relevant public sector legislation by
doing so.[22]
3.18
To close this 'loophole', Mr Parish suggested that both the Evidence Act
and the TI Act be amended to provide that:
- any law enforcement access to a journalist's telecommunication
records should require a warrant; and
- the decision to issue a warrant should be subject to the same
rebuttable presumption of non-disclosure as provided in the Bills.[23]
3.19
However, the Department does not consider there to be a loophole in
relation to the proposed amendments to the Evidence Act. This is because the
'interception powers broadly defined do not relate to the admissibility or
adducing of evidence in hearings once litigation or action have commenced'.[24]
At the public hearing, a departmental representative provided further
information on the operation of the TI Act:
In relation to the specific incident you are referring to,
the Northern Territory Police were investigating a criminal offence in terms of
the leaking of the information. They got access to the journalist's records
under the TI Act which is available to them for that purpose...The provisions
in the [TI Act] actually require the police force to notify the carrier who
holds those records to then provide those records to them...The access
arrangements are for the investigation of a criminal offence, an offence that
has a pecuniary penalty attached to it or for the protection of the public revenue...If
it is a criminal offence to provide information to some other person and the
police are investigating that offence...any person's phone records could be
accessed.[25]
Extending protection
3.20
As noted in Chapter 2 of this report, a substantive difference between
the two Bills is the Brandis Bill's amendment to the definition of 'protected
confidence' in section 126A(1) and the consequent expansion of the scope of
section 126B, thereby introducing a general professional privilege for a wider
range of relationships.
3.21
Currently in Australia, only the Evidence Act 1995 (NSW) includes
a general professional confidentiality privilege.[26]
However, the Australian Law Reform Commission (ALRC) and others have proposed
that such a privilege should be introduced. The ALRC report on the Uniform
Evidence Law in 2005 recommended:
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.[27]
3.22
The ALRC report noted, that while only the privileged professional
relationship recognised in common law exists between a lawyer and client, there
are many other relationships where a public interest may be established in
maintaining confidentiality. These relationships could include, for example, doctor
and patient, psychotherapist and patient, and social worker and client.[28]
However, the ALRC also noted that it had received a range of submissions on
this proposal, including a number expressing their opposition. These
submissions highlighted that not all professions are subject to rigorous
regimes of professional obligation and that a privilege not to provide evidence
can potentially be abused.[29]
3.23
As outlined above, most of the submissions received during the committee's
inquiry expressed broad support for the approach taken in both Bills, without a
strong preference for either. For example, ARTK, as a group representing media
organisations, did not feel qualified 'to express a view on the merits or
otherwise of whether protection should be available in relation to any
relationships other than that between a journalist and an informant'.[30]
3.24
Mr Ken Parish preferred the Brandis Bill because it extends the proposed
presumption/qualified immunity to a range of relationships of confidence, not
just journalists and their sources:
In my view there is no persuasive reason why the protection
of the proposed presumption/qualified immunity should be confined to
journalists as opposed to other relevant professionals whose work may give rise
to relationships or situations of confidence.[31]
3.25
However, the Victorian Director of Public Prosecutions preferred the
Wilkie Bill as 'it has a more narrow application and less [is] likely to lead
to the exclusion of otherwise admissible evidence'.[32]
He also raised a particular issue in relation to the Brandis Bill, stating that
it 'repeals the existing provision dealing with the loss of privilege in
circumstances where the communication or document was made in furtherance of
the commission of a fraud or an offence or commission of an act that rends a person
liable to civil penalty'. Further:
Although the specific journalists' privilege would remain
subject to the public interest test, it is our view that communication made in
furtherance of fraud or criminal offending be explicitly excluded from the operation
of the privilege.[33]
Uniformity
3.26
The EM to the Brandis Bill notes the intention of the proposed amendment
to the definition of 'protected confidence' is 'to bring the Commonwealth Act
in line with the regime currently provided in the New South Wales Evidence
Act 1995'.[34]
However, the Victorian Director of Public Prosecutions also emphasised the
problems which might be caused by the differences between jurisdictions in
approaches to this issue. He noted that Victoria has not enacted any
legislation which recognises either 'professional confidential relationships'
or specific 'journalists' privilege' and that this privilege is not recognised
in the common law. Further:
This lack of uniformity may lead to a peculiar situation
where in the running of a joint State/Commonwealth prosecution an issue of
privilege is raised whereby evidence is capable of being admitted with respect
to the Victorian offences but excluded with regard to the Commonwealth
offences.[35]
Conclusion
3.27
While the committee notes the contribution of the Brandis Bill to the
issue of journalists' privilege and the related issue of a wider professional
privilege, it considers the Wilkie Bill to be preferable. As noted by the
Australian Press Council, the Wilkie Bill has already passed the House of
Representatives and 'contains additional provisions that clarify some issues
not overtly referred to in Senator Brandis' Bill'.[36]
3.28
In the committee's view, the implications of a general professional
confidentiality privilege in Commonwealth law have not been adequately
explored. As noted above, the ALRC's consideration of this issue revealed that a
range of views exist regarding the benefits of such a reform. Potentially, this
proposal could have serious consequences for the introduction of evidence in legal
proceedings involving relevant professionals.
3.29
While this is a complex and disputed area, in the view of the committee,
journalists' privilege can be differentiated from other professional privileges
because of the nature of the public interest. Journalists' privilege operates
not only to protect the privacy of the source and the relationship of trust
between the journalist and the source, but also to protect public interests in the
accountability of public officials, an informed public and the free flow of
information, all of which are vital components of a democratic society. Journalists'
privilege can also be distinguished by the fact that there have been specific
cases in the past where journalists have suffered serious legal consequences
because of their adherence to their professional code of ethics in protecting
the confidentiality of their sources.
3.30
The committee also expresses concern about the issues raised by Mr Ken
Parish regarding the access of journalists' telecommunication records by law
enforcement agencies for the purposes of identifying confidential sources of
information. However, the committee considers that amendments to the Evidence
Act or the TI Act do not appear to be an appropriate way of addressing these
issues. New legislation designed to protect legitimate whistleblowers, in
particular public servants who make confidential disclosures in the public
interest, may be preferable.
Recommendation 1
3.31 The committee recommends that the Senate pass the Evidence Amendment
(Journalists' Privilege) Bill 2010.
Senator Trish Crossin
Chair
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