DISSENTING REPORT BY LIBERAL SENATORS

1.1        Last year, in the Senate Legal and Constitutional Affairs Legislation Committee (committee) report into the provisions of the Evidence Amendment (Journalists' Privilege) Bill 2009, Liberal senators recommended an amendment to create 'a rebuttable presumption in favour of journalist-source confidentiality'.[1] Liberal senators feel vindicated that this approach has now been adopted in the Evidence Amendment (Journalists' Privilege) Bill 2010 (Wilkie Bill) and subsequently supported by the government. This approach has also been taken in the Evidence Amendment (Journalists' Privilege) Bill 2010 (No. 2) (Brandis Bill).

1.2        Liberal senators prefer the Brandis Bill. The provisions of the Brandis Bill clearly achieve the objective of providing genuine protection to confidential communications between journalists and their sources. The Brandis Bill also goes further, extending the protection in section 126B of the Evidence Act 1995 to other professional confidential relationships. This amendment restores uniformity between the New South Wales and Commonwealth regimes and avoids arbitrarily confining the circumstances in which a claim for privilege may be justifiably asserted. As noted by Mr Ken Parish, there is no persuasive reason why the protection of the Bills should be confined to journalists as opposed to other relevant professionals whose work may give rise to relationship or situations of confidence.[2]

1.3        Liberal senators acknowledge the many concerns, raised during the public hearing, regarding the appropriate scope of the journalists' privilege provided by the Bills. Often these concerns related to the interpretation of the phrase 'in the normal course of that person's work' in relation to the definition of 'journalist', and the broad nature of the definition of 'news medium'. It was also noted that the motivations of a 'journalist' may also be relevant to judicial interpretation of the definitions in the Bill.[3] Several representative examples were raised, by both witnesses and Senators, which illustrated that potential uncertainty exists regarding who would be entitled to claim journalists' privilege under the Bills. These included:

• an academic who occasionally provided content to a 'news medium';
• a current or former politician who regularly contributed to a 'news medium'; and
• a person who occasionally contributed material to a 'news medium' but who was not primarily employed or paid as a journalist; and
• the possible operation of social networking websites as a 'new medium'.

1.4        Both Bills contemplate a necessary level of judicial discretion and interpretation in determining who falls within the protection of the journalists' privilege. However, in the view of Liberal Senators, there is scope for the Explanatory Memorandum of the Bill eventually passed by the Senate to provide more guidance to ensure inappropriate categories of persons are not included within the journalists' privilege.

1.5        Finally, the committee's inquiry into journalists' privilege has highlighted again the need for complimentary legislation designed to protect whistleblowers who make confidential disclosures in the public interest. Liberal senators reiterate their additional comments in the committee's report on the government's Bill last year, that these pieces of legislation should be concurrently introduced for comprehensive consideration.[4]

Recommendation 1

1.6        Liberal senators recommend that the Senate pass the Evidence Amendment (Journalists' Privilege) Bill 2010 (No. 2).

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