Evidence (Journalists) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 11 February 2016.)

The Hon. T.R. KENYON (Newland) (11:20): After deep consideration, I rise to oppose this bill. I do so for the following reasons. The bill was introduced as a private member's bill by the Hon. Andrew McLachlan, and it has a long history. It draws upon the Evidence (Protections for Journalists) Amendment Bill 2014 and the Evidence (Journalists) Amendment Bill 2014, respectively introduced by the Hon. John Darley and the Hon. Stephen Wade. Both of these bills were restatements of earlier bills that were introduced as private members' bills by the Hon. John Darley and the Hon. Stephen Wade in 2013 and lapsed with the end of the 2013 parliamentary session.

The 2014 bill moved by the Hon. John Darley was eventually passed by the Legislative Council with certain ill-conceived amendments moved by the Hon. Stephen Wade. This bill was debated after debate in the House of Assembly on 30 October 2014 and the bill, of course, was opposed by the government. Given the fact that the Attorney-General has previously outlined the government's reasoning for opposing the bill, I will keep this speech somewhat brief.

The present bill is, again, broadly based on the model that now exists in the commonwealth, although it is not identical. Again, this bill provides enhanced protections to journalists and seeks to enshrine in legislation the fundamental principle that journalists should not be compelled to reveal their sources and that this will somehow better promote the notion of the public's right to information. However, the bill does not grant absolute protection to journalists and provides that the court may order disclosure, but only if the case fails in the public interest test, and that is where the public interest in revealing information outweighs the potential detriment to the source.

Again, the government has considered the bill but remains of the position that the bill is simply unnecessary. It has major practical flaws, notably as to its expansive definition of 'journalist' and its application to examinations such as those before the Independent Commissioner Against Corruption, which is not only unhelpful for ICAC's important work but frankly ridiculous, and the Australian Crime Commission, which is quite possibly unconstitutional. These issues were pointed out by the government on a previous occasion the bill was before this house, and I see that the opposition has made no attempt to rectify these issues.

Various statutory models exist in Australia and elsewhere that modify the common law approach. Legislation has been enacted in New Zealand, the commonwealth, New South Wales, the Australian Capital Territory, Tasmania and Victoria. Western Australia passed its own very distinct legislation in 2012. There are no journalist shield laws in Queensland, the Northern Territory or South Australia. Common law, notably set out in the High Court in John Fairfax and Sons Ltd v Cojuangco (1988) 165 CLR 346, provides that journalists do not enjoy enhanced or special protections in disclosure of information to a court that the journalist might regard as confidential.

The common law, set out by the High Court, provides that it is a fundamental principle of the Australian legal system that the media and journalists do not have a public interest immunity when it comes to disclosure of information in the interests of justice. That is the High Court's view. The High Court's position is compelling, striking the right balance, and the government agrees with both the approach and rationale for it outlined by the High Court. The government sees no need to change the law.

It is important to revisit two features in the bill that give rise to particular concern. First, the bill is not confined to journalists in a professional sense. The definition of journalist is capable of extending more broadly to other purported journalists, such as those operating as contractors and freelancers. This potentially includes anonymous bloggers. The government has no intention of protecting those people who call themselves journalists but in reality are merely using the internet as a tool to anonymously troll the internet.

Secondly, the current bill extends to any proceedings involving a hearing or examination at which a person may be compelled to answer questions or produce documents. This extension is unsound and ill conceived. It would hamper the important work of agencies conducting examinations, such as the Australian Crime Commission. In particular, this would also apply to examinations under the Independent Commissioner Against Corruption Act 2012. This extension is fundamentally unsound, unwarranted and would frustrate and undermine the operation of ICAC.

It is necessary for the underlying purpose and effective operation of ICAC that the bill does not apply to examinations conducted under that act. The Independent Commissioner Against Corruption Act 2012 has its own special regime to determine and resolve questions relating to cooperation with examinations held under the act.

In conclusion, the government agrees with the High Court's position. The logic of the High Court's position is compelling. Journalists should not be above the law or singled out for special position. The bill is flawed both in terms of policy and practice and the bill is unnecessary. The government opposes the bill.

The house divided on the second reading:

Ayes 15

Noes 20

Majority 5

Second reading thus negatived.