Senator Nick XENOPHON

Xenophon's push to improve shield laws
http://www.theaustralian.news.com.au/business/story/0,,25281212-17044,00.html

Chris Merritt, Legal Affairs editor | April 03, 2009

INDEPENDENT senator Nick Xenophon is working on a plan to force the federal Government to improve its proposed shield laws for journalists' sources.

He hopes to mobilise Senate cross-benchers to force the Government to give more certain protection for journalists who seek to protect their sources.

Senator Xenophon is also planning to force changes on the proposed whistleblower protection laws that are being considered by the Government.

His warning about the need for change comes soon after he forced the Government to spend more money on the Murray-Darling to ensure Senate approval for its economic stimulus package.

"This is bedrock stuff in a democracy and we need to make every effort to get this right," he said.

Senator Xenophon said his tactics on shield laws and whistleblower protection were still being developed.

"But the Government knows that I am capable of being a pesky, persistent bastard. I want to be in their face on this because this is fundamental in a democracy," he said.

He said shield laws and whistleblower protection were "first-order isues".

"If you stifle the free flow of information you increase the potential for the state to abuse its power.

"If you don't protect sources and whistleblowers then the potential for maladministration, waste of public funds and abuse of power increases exponentially."

The proposed shield laws for journalists' sources, recently unveiled by Attorney-General Robert McClelland, have been criticised as "a flimsy umbrella".

The Government is also considering a report calling for a new system of whistleblower protection laws.

That scheme, which has been drawn up by a committee of the House of Representatives, would maintain a system of criminal penalties for public servants who reveal corruption and maladministration to the media.

It would give public servants protection from liability as long as they keep their concerns within an elaborate new complaint-handling system.

Legal protection would only be extended to leaks to the media if the information concerned an immediate and serious threat to public health or safety.

"We need to have effective shield laws and whistleblower laws to prevent the potential abuse of commonwealth power," Senator Xenophon said.

He believed the issue was so fundamental that he would be urging fellow cross-benchers in the Senate to take a similar approach.

Senator Xenophon said he was confident he would be able to improve both schemes. He said the proposed laws on both issues provided no more than an illusion of protection for whistleblowers and journalists' sources.

The shield law scheme would leave Australia out of step with New Zealand, Britain and the US which had more reliable schemes.

The whistleblower protection plan would have such a high threshold it would provide little real benefit for whistleblowers.

He said the whistleblower proposal and the shield law bill should be considered a failure because they would not have protected whistleblower Allan Kessing and Herald Sun reporters Michael Harvey and Gerard McMannus. All three received criminal convictions over newspaper reports that revealed lax administration or plans to shortchange war widows.

"These cases were clearly in the public interest," Senator Xenophon said.

He said one of the key failings in the shield law scheme was that it did not introduce a rebuttable presumption in favour of protecting journalists' sources.

"The legislation also fails to make reference to the right of people to the free flow of information -- which is a feature of the US and New Zealand laws," he said.

Senator Xenophon said it was anomalous that New Zealand had shield laws that were "immeasurably better" than the scheme that had been drawn up by the Attorney-General.

"If we can have a free trade agreement with New Zealand, we should take the same approach towards the free flow of information," he said.