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Wednesday, October 20, 2010

Shield law, whistleblowers and secrecy provisions all part of the framework

In introducing the Evidence Amendment (Journalists' Privilege) Bill, Andrew Wilkie recounted the experiences of some high profile whistleblowers and the journalists who publicised their concerns, and acknowledged that the logical counterpart to the bill will be whistleblower legislation, adding that he looked forward to "working with members in this place to progress such unprecedented federal legislation during the term of this parliament."

Whistleblower legislation has been unfinished business for many months (years). The Government announced earlier this year a response to the Dreyfus committee report that was welcomed at the time as close to world's best practice. Until Queensland went one better. Mr Wilkie clearly has further thoughts on the subject.

Wilkie didn't mention it in his speech, but the third leg in all this is the need to clean up Australia's secrecy laws, including the draconian s 70 of the Crimes Act that makes the disclosure of information without authorisation a crime subject to up to two years imprisonment, and for which there is no defence. The Government is yet to respond to the Australian Law Reform Commission's recommendations.

Wilkie acknowledged that the protection of the identity of a source must give way in some circumstances to other interests. The
" bill does recognise that there may be circumstances where the public interest in the disclosure of the identity of the source is so strong that it should be provided to the court. In such cases it will be up to those parties who want to force a journalist to reveal their source to prove that the public interest is best served in disclosing the source and that the public interest benefit of a disclosure genuinely outweighs the likely harm to the source.This bill will replace the existing provisions in division 1A of the Evidence Act. It will include a new provision that provides clear authority for the presumption that a journalist is not required to give evidence about the identity of the source of their information. This presumption can be rebutted in circumstances where the public interest outweighs any likely adverse effect for the person who provided the information to the journalist, as well as the public interest in the communication of information to the public by the media."
Mark Dreyfus in May last year, in debate on his committe's report on whistleblower protection, had this to say on the relationship between the two:
Perhaps understandably, some of the media commentary has focused on proposals concerning the protection of disclosure to the media and has suggested that there ought to be protection for disclosure to the media which covers a larger range of matters....(I)t is important to understand that only part of the whistleblower protection scheme is concerned with disclosure to the media. There is no scheme of whistleblower protection in the developed world which gives blanket protection to disclosures made by public servants to the media and I do not think that anyone would suggest it. The question is about where to strike the balance. Journalist shield laws are concerned with protecting all sources of information that is provided to journalists, no matter what the subject matter is. While it may be the case that some journalists’ sources will be public servants who wish to disclose maladministration and wrongdoing in the public sector, journalist shield laws have much wider reach than that. So there is a connection between the two proposed laws but it is a limited one. Whistleblower protection schemes for the public sector need to focus on administrative processes and need to produce a workable regime for reporting and investigation of wrongdoing. Journalist shield laws, being of general application, are not focused on the public sector alone or only on public servants as potential sources. What the two proposed laws—that is, whistleblower protection schemes in the public sector and journalist shield laws—have in common is a need to balance competing policy objectives. It is obvious that there is room for debate about where the balance should be struck. What does not seem to be an issue—and it is the only manner which anyone has come up with for providing protection for journalists’ sources—is that it will involve the exercise of judicial discretion.
In enacting a presumption against disclosure of the identity of a journalists' source with a right to challenge on specified grounds any refusal in court to disclose,the Wilkie and Brandis bills ensure that determination of the matter at the end of the day will involve a somewhat circumscribed judicial discretion.

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