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Wednesday, March 23, 2011

Federal shield law done and dusted

The House of Representatives accepted the Senate amendments to the Evidence Amendment (Journalists‘ Privilege) Bill 2010 in a 72-70 vote on Monday, with the Opposition voting against. (House Hansard 21 March p 23) Front bencher Michael Keenan stuck to the "rue the day" line adopted in the Senate by Shadow Attorney General Senator Brandis:
If these amendments from the Australian Greens were to be adopted, the whole purpose of this bill would be massively expanded beyond its original conception, which is to protect journalists‘ sources in defined circumstances. It would not merely protect journalists, and it would not merely protect news media. It would be carte blanche for anyone who wanted to publish anything anywhere that might be considered news.
For good measure Senator Brandis reiterated all this in The Australian today.

While it remains to be seen how the term journalist, defined as "a person who is engaged and active in the publication of news", is interpreted, "anyone, anything, anywhere" seems over the top to me. And to Andrew Wilkie and Attorney General McClelland who spoke in favour, the latter finding merit in the whole process despite previous government resistance to reform along the lines now adopted:
In conclusion, this bill is an excellent example of how all sides of politics can work together in this parliament towards a common goal. I again thank the member for Denison and also Senator Xenophon for introducing this bill and for their willingness to work with the government on this important issue.

Welcome news but limited to matters in Federal courts and Commonwealth laws. State laws don't provide the same protection so still messy times ahead, including in circumstances such as this in NSW.

But then this extraordinary call within two days of the passage of the bill by Robin Speed of the Rule of Law Institute of Australia, for the legislation to be amended immediately to provide that disclosure should only be ordered where national security is at stake. Some points that Mr Speed seems to miss:
  • the debate about this has been on for years. There will be little interest or enthusiasm in reopening it now
  •  the bill provides for a rebuttable presumption against disclosure of the identity of a journalist's source-non-disclosure is the starting point
  • it applies in matters concerning Commonwealth laws or heard in federal courts
  • it is what media interests sought
  • the onus in seeking to force disclosure rests on the party who seeks disclosure to establish that other public interests justify disclosure
  • the protection of national security should be grounds for a consideration of an override but  other public interests for example justice to an individual should not be excluded
  • the problem at the centre of his concerns is a matter for NSW state law and nothing to do with this bill.
  • all of us should be worried about the opaque operations of the NSW Crime Commission but this is nothing to do with the legislation passed in Canberra this we  
(Update: this discussion between Chris Merritt of the Australian and Veronica Scott of Minter Ellison.)


    1. Anonymous1:52 pm

      Excuse my ignorance, so has this now been assented to with the law actually in effect?

    2. Passed both houses so it is in the bag-I haven't seen assent or commencement date.