The Greens have announced today they will be seeking amendments to the proposed federal shield laws to protect journalists’ sources. The Evidence Amendment (Journalists' Privilege) Bill has completed Senate hearings but the Greens say needs further changes if it is to adequately protect journalists. The party’s Attorneys General spokesman Senator Scott Ludlam (pictured) said the bill did not support the minimum protections of confidentiality nor did it meet the objectives as claimed by the Attorney General. “At a bare minimum we need to make it explicit that courts should assume protection of journalists sources unless there is a compelling reason to the contrary," said Ludlam. "The Greens will propose a range of amendments to make sure the bill meets these important objectives and in coming weeks we will be seeking the support of other parties."
The new legislation is a Labor election promise for a review of whistleblower protection. However the crux of Ludlam’s beef is that it does not go far enough to ensure journalists have the right to protect the identity of their sources unless overridden by strong public interest or national security reasons. And Ludlam is not alone in thinking the new law will be ineffective. Last week the media industry’s Right to Know Coalition (which includes most of the country’s key media players) also said the proposed law was defective. They told the Senate enquiry that the scheme should be based on the New Zealand model which contains a presumption that journalists' sources should remain confidential.
However federal Attorney-General Robert McClelland has rejected the New Zealand model in favour of the scheme drawn up by the House of Representatives standing committee on legal and constitutional affairs. Announcing the government’s position on 19 March, McClelland described the Labor position as a balance between the media’s role in informing the public and the public interest in the administration of justice. He says the bill required courts to consider whether information was passed illegally before determining if evidence should be admitted or a source revealed. This consideration needed to be balanced against the potential harm to the source or the journalist if evidence is given.
Critics say the bill retains criminal sanctions for most public disclosures, even those that are made in the public interest. Whistleblowers Australia say that if the scheme is enacted in its current form, they will advise commonwealth public servants to ignore it when dealing with disclosure issues. The most infamous recent case is that of customs officer Allan Kessing who leaked a confidential report to the Australian which showed the poor state of Australian airport security. The report was ignored by his superiors for two years but led directly to a $200 million improvement program after the leak. Kessing was convicted of disclosing official information and received a nine-month suspended jail term.
The legislation also leaves journalists vulnerable. South Australian independent Nick Xenophon questioned its efficacy when he asked “would it have protected Michael Harvey and Gerard McManus?” Harvey and McManus (pictured) were Herald-Sun reporters convicted of contempt of court and fined $7,000 for refusing to reveal the source of a leak about a federal government proposal to slash war veterans’ benefits. In response the then Howard government put up shield legislation which relied heavily on judicial discretion.
The 2007 Moss Report into the state of free speech in Australia stated those shield laws would not have helped Harvey and McManus. Labor’s proposed legislation does not seem much better than their predecessors. But despite the Greens and Xenophon’s reservations, there is still hope an amended version will be passed with the help of the cross-benches. Scott Ludlam wants the legislation to also apply to new media including citizen journalists and bloggers. "With goodwill and cooperation amongst the parties, we can ensure this bill serves its important purpose,” said Ludlam.