Evidence (Protections for Journalists) Amendment Bill

Second Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:40): I move:

That this bill be now read a second time.

It is with pleasure that I stand to introduce this bill today. It is the culmination of an extraordinary amount of work that has been undertaken, and I pay tribute to the Hon. Stephen Wade in another place. During 2013, in particular, we on this side of politics felt it was such an important issue, such a significant area of public policy, that we went to the 2014 election with a commitment to protecting the public interest in the manner outlined in this bill.

I am asking members to give it favourable consideration. In particular, I will be asking for the support of the Independents in this place who, obviously, have been concerned in a number of areas prior to their admission to, or association with, part of the government. I would ask them to think long and hard about the importance of what we are asking be protected hereto, that is, protection for the public to have the right to engage in debate, disclose information, and be able to have the confidence that their issue or concern will be published and considered without the intimidation of having disclosed their name.

The commitment to this bill arises out of our firm view that to maintain a healthy and open society we need a free media and journalists and media outlets holding interest groups, companies and government to account. They do this by publishing important information from a range of sources. Many risk their own wellbeing to expose information in the public interest, much of which would not be disclosed if, in fact, the anonymity of the source were not protected. If journalists are not able to provide their sources with the assurance of anonymity, it is likely that critical information benefiting the public will not be passed on. This damages the public debate, hides corruption and undermines accountability.

Another aspect that we feel has been neglected in our own jurisdiction is the fact that it seems to have been adopted and welcomed and utilised in so many other areas. It has been used internationally and around Australia to provide protection to people who engage journalists. As a matter of law, shield laws provide that source-to-journalist communications are privileged and the source identity of journalists is protected.

Despite the growing popularity of shield laws across Australia, state and federal governments still recognise the need to protect the privileges of journalists. As I say, South Australia still has no such protection in place. Our common law does not provide protection to the sources of journalists, so we need to legislate. If we are serious about this issue, if we are serious about the disclosure and the important application of the opportunity to disclose corruption and other accountability matters, then we have to make a law. We have to deal with this in a way that is going to protect those sources.

A Senate committee has outlined its consideration of this, and I have read a number of submissions that have been made at the federal level during the last decade. As the Senate committee put it:

Journalists' privilege operates not only to protect the privacy of the source and the relationship of trust between the journalist and the source, but also to protect public interests in the accountability of public officials, an informed public and the free flow of information, all of which are vital components to a democratic society.

That was from the Australian Senate Legal and Constitutional Affairs Legislation Committee and the bills that followed. All current shield law models contain a provision that privilege can be waived by a court order if it is in the public interest to do so. This proviso creates uncertainty for sources and thereby a disincentive to disclose information to journalists.

Western Australia and Tasmania also provide a number of other conditions the court must consider when making an order, such as the importance and probative value of the evidence, the nature and gravity of the offence, cause of action of the defence and potential harm that may come to the source. A court must not make an order if it is likely that the harm to the confider does not outweigh the desirability of the evidence being given. That refers to the Western Australian Evidence Act 1906.

There is a question of definition of who is a journalist and the scope of protection. Of the shield law models in Australia, there are three variations in terms of the scope of protection: firstly, a person who is engaged and active in the publication of news and may be given information by an informant in the expectation that information may be published in a news medium. It encompasses anybody involved in the production of news and allows for the diversity of news medium, including websites social media and blogs. This definition is used by the commonwealth.

The second model is a person who gives information to a journalist, in the normal course of the journalist's work, in the expectation that the information may be published in a news medium. It is limited to professional news producers and journalists in the course of their work. Thirdly, it is a person who has a protected confidence, the contents of a document recording a protected confidence or protected identity information. It only protects confidence acting in a professional capacity. It would not protect blogs, but would protect interchanges outside even news production. There is a variation between the models of definition of journalist, informant and news medium. For those who are interested, I can certainly provide some further information in respect of that.

As to the protection of associates, the commonwealth, New South Wales, ACT and Victoria all explicitly grant protection not just to the news provider but also to their employer. Neither is compelled to provide the name of the source, again, unless in a circumstance of being ordered by the court. Western Australian and Tasmanian provisions relate to the nature of the information and the means by which it was provided, so they do not have a specific provision to cover certain classes of people or their employers.

There is a provision in the commonwealth, New South Wales, ACT and Victorian legislation to require a journalist to promise to the source not that they will not disclose the source's identity. I quote from the New South Wales legislation:

If a journalist has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained.

I refer to the Western Australian and Tasmanian provisions requiring it to be shown to be a protected confidence, protected identity or a document recording a protected confidence. So, there is some tracing of that obligation to promise not to disclose.

As to the question of immunity versus privilege, while shield laws in other jurisdictions rely on the protection of privilege, which can be abrogated by the court, another form of protection could be to guarantee immunity to sources. This latter option would then not be subject to court discretion in cases of public interest.

So, there has been an enormous amount of debate about the instigation of this protection and the model that should apply and the extent of it. The Hon. John Darley, in another place, introduced a shield law bill in February 2013. His bill was based on the New South Wales model, except that it used unique definitions and also afforded the privilege to 'prescribed person(s) in respect of a professional journalist'. His bill also extended the privilege to other circumstances outside of court proceedings where a person may be compelled to disclose a source but did not extend the privilege to ICAC proceedings.

On 19 June 2013, the then federal Labor attorney-general Mark Dreyfus QC, announced plans to pursue uniform national shield laws through the Standing Council on Law and Justice. At that stage, I do not think that he had indicated what model he would prefer. But, again, the situation has moved forward since then.

The government's position in not giving any endorsement to this legislation is concerning because it is at a time when there has been significant public discussion at all jurisdiction levels in Australia, there has been notice of the intent, initiated first by the Hon. John Darley, and there have been subsequent bills. Mr Darley and Mr Wade have introduced bills in another place during this session of the parliament. That has been traversed and, with crossbench support, has succeeded in passing the other place.

During the course of those debates, discussions between the Liberal Party and Mr Darley resulted in Mr Darley's bill being promoted as the shell legislation, which he has remained as passionate about as we are, but adding into it some aspects of the Liberal Party bill, which have now been incorporated, as per the outline bill I present for your consideration today. The two fundamental differences are: extending more broadly the definition of who this is to apply to (that is, to consider other journalists, such as those operating as contractors and freelancers) within one of the models I have already described, which has been incorporated into what I will describe as the Darley bill.

The second aspect is that we had always felt that it was important to protect journalists or their sources when questioned even in the Independent Commission Against Corruption forum. That is absolutely necessary if they are to be provided with the same level of protection within that forum and within questioning within that forum. There is little point in giving protection in some arenas and then allowing ICAC to be exempt from that. Obviously, the common response to that would be that, if that were to apply, people would just send everything off to ICAC and seek sources to be disclosed in that forum.

We are very pleased that the Hon. John Darley has indicated that he has incorporated those two differences. We think that it makes a stronger bill, and we think that it will make better law and provide the protection we urgently need. That protection is available in so many other jurisdictions internationally and in Australia, yet we are still left without that protection. I present the bill for consideration, and I would hope that the government will consider it favourably.

Can I say this: many people who come to us, even in asking us to take up a cause for them, are in a category where they are keen for leaders in the community such as all of us to take up a cause but they are concerned for retribution in some way. It is not always by government; it might be by an employer which is not government, that is they are not members of the Public Service, and they are members of an employment situation where they have taken an issue that they feel is concerning about the safety of the workplace they are in. They feel there would be some retribution, loss of employment, some vindictive action against a member of their family or the like, if they were to disclose that information as to it being out of their mouths.

It is absolutely critical to us, and I think there would not be a member here who has not had a constituent in some way come to them and say, 'Look, I wanted you to know this is what is happening. Take it into parliament. You have the right of privilege to protect me so that you can have free statement about this,' but not everyone comes in here to listen to parliament. We rely on the media—

The SPEAKER: Alas, no—and the member's time has expired.

Ms CHAPMAN: —to ensure that message gets out.

The Hon. T.R. KENYON: Mr Speaker, I draw your attention to the state of the house.

A quorum having been formed:

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (10:57): I was thinking of saying a few words about the Evidence (Protections for Journalists) Amendment Bill, if that is suitable, Mr Speaker.

The SPEAKER: Splendid!

The Hon. J.R. RAU: The Evidence (Protections for Journalists) Amendment Bill 2014 was introduced as a private member's bill by the Hon. John Darley and the bill is a revised version of a bill that was introduced as a private member's bill by, again, the Hon. John Darley in 2013, which in turn lapsed at the end of that parliamentary session. The bill is broadly based on the model that now exists in the commonwealth, although not identical.

This bill seeks to enshrine in legislation the fundamental principle that journalists should not be compelled to reveal their sources—might I add, in any circumstances it would seem—and this will 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, that is where the public interest in revealing information outweighs the potential detriment to the source.

The government does not support the bill. It has given the issue careful consideration but is of the position that the bill is unnecessary, according journalists a privileged position. I might also add that I have as yet to have produced in any context relevant to South Australia any single example of where the mischief to which this bill is directed has occurred.

The bill has major practical flaws, notably as to its expansive definition of journalists and its application to examinations such as those before the Independent Commissioner Against Corruption, which is obviously ridiculous, and the Australian Crime Commission which is quite possibly unconstitutional.

The issue of shield law to protect journalists from revealing material that they regard as confidential has been the subject of considerable debate for many years by lawyers, attorneys-general, academics and, of course, journalists. The issue of uniform national journalist shield laws was considered at great length before the former Standing Council of Attorneys-General. No clear consensus ever emerged.

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.

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 the 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 the rationale for it outlined by the High Court. The government sees no need to change the law.

The bill before the parliament leans too far towards protecting the interests of journalists and discounts the legitimate public interest in the administration of justice, which requires that cases be tried by courts on the relevant admissible evidence. It is often asserted, notably in media circles, that the High Court's approach provides inadequate protection to journalists and the confidentiality of their sources. But there is nothing to demonstrate that the current approach is flawed, as supporters of the shield laws often contend.

I appreciate that Australian journalists may not enjoy the comparison, but the recent revelations in the United Kingdom of the extensive abuses committed by journalists and media outlets illustrate that the concerns expressed by the High Court are very well founded. To some extent, this conversation is a very in-house conversation that journalists wish to have with themselves through their organs, such as newspapers and such. It reminds me of an old expression: that's enough from me, what do you think about me?

It is sometimes argued that for journalists loyalty to the source is paramount, but what is the origin of this loyalty? In its most tangible form: the obligations contained in the Journalists' Code of Ethics. Australia's code is produced by the Media Entertainment and Arts Alliance. Clause 3 provides:

Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative attributable to the source. Where confidences are excepted, respect them in all circumstances.

Only the substantial advancement of the public interest or risk of substantial harm to people can override this clause. There is no opt-out clause for when this ethical obligation comes into conflict with the law. Others, however, have been unimpressed.

In ICAC v Cornwall (1995) 38 New South Wales Law Reports 207 at 240, Justice Aberdie of the New South Wales Supreme Court, for example, dismissed the Journalists' Code of Ethics as a fiction, 'drafted to operate despite the law and perhaps intended to operate beyond it'. This scepticism is heightened by the fact that the Media Entertainment and Arts Alliance code is not binding or legally enforceable, unlike, say, the code of ethics for lawyers or medical practitioners. The most severe punishment open to the Australian Journalists' Association is the expulsion of a member, but since membership of the association is not a prerequisite to practice journalism, particularly in any extended definition of it, this is a very weak threat.

The sanction is even further weakened as there is no known example of a journalist ever being expelled or even disciplined for a breach of this rule. There are two features in the bill that give rise to particular concern. These two ill-conceived features are a result of amendments moved by the Hon. Stephen Wade in the Legislative Council. 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 bill draws on the commonwealth model in this regard. The then New South Wales attorney-general, the Hon. Greg Smith, said that the commonwealth model had the potential to cover people who 'can sometimes just be lunatics or people with very passionate agendas to push'. I agree with the Hon. Greg Smith. Such protection should not be extended to any anonymous punter claiming to be a journalist propagating malicious rumours from the dark corners of the internet.

Secondly, the current bill, unlike the original version introduced by the Hon. John Darley, 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 common law has been criticised, perhaps in exaggerated terms, as providing inadequate protections to journalists, this criticism invariably coming from journalists who cannot point to a single instance—certainly in South Australia—where they have in any way been unfairly treated as a result of this apparent deficiency in the common law. But there is nothing to establish that present law is flawed. 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 in terms of both policy and practice. The bill is unnecessary. The government opposes the bill.

Mr WINGARD (Mitchell) (11:06): I rise today to speak in support of this bill and to commend the great work done by the Hon. Stephen Wade in the other place and also Mr Darley in the other place who have worked very hard to put forward this bill on shield laws. Shield laws aim to provide protection to journalists' sources by suppressing their identity and providing journalists with confidential source-to-journalist privileged communications. We need these laws to maintain a healthy, open society and we need free media to make sure that we can disclose corruption and wrongdoing within our society.

Having worked in this field and having now moved into this role as a member of this place, I have had numerous sources come to me concerned about the fallout if their names are revealed. I hear those on the other side talk about examples of where this has not been displayed. The minister has said something along these lines: 'You don't know what you don't know.' I think there is something that needs to be pointed out here. He asks which people have come forward to say they are having an issue with this. That is perhaps the point of this law and where we sit in this debate.

People who are afraid will not come forward and say so. They will not speak out, they will not divulge corruption and they will not divulge wrongdoing within society, because they are afraid to speak to a journalist for the fear that they may have their name and/or their identity revealed. They are scared to do so, so they do not come forward and say so. That is a reason why there is not evidence to put on the table to show the minister that this is what is happening out there.

Public interest is what we have to be concerned about here. If people have the confidence to come forward and know they will be protected and know their names will not be revealed, they can, with confidence, say what is happening to a journalist. If they know the journalist will have the protection to protect them, then you will find that more people will come forward. To not do this is really just hiding corruption. People fear retribution and they will not come forward and say their piece.

This is a law used internationally and, as was pointed out, it is used right around Australia. A number of states have adopted shield laws and I fear that if South Australia does not adopt these, we will just be falling further behind as we are in so many other areas across this country. Sources are privileged and journalists require these sources to come forward to divulge the goings-on, be they within government or within organisations, and people need to come forward and not fear retribution.

I mentioned that, in a previous life as a journalist, numerous sources would come to me and their first concern would be whether or not their names would be revealed. They would often want to tell a story and often want a story reported. It also happens as a member of parliament. People have issues that they want to talk about and things they want revealed, but they are fearful of the repercussions should their names get out in the public. Without this protection, these people simply do not want their stories told: they do not want to get the message out there.

As strong as it might be and as much as it might be to the greater good of the community, some people look after their own interests. I can understand that in this case because they may be concerned about their job, they have families to feed, and they have to run their lives and run businesses in a lot of cases and, if they come forward and reveal to journalists these points and have their story told, they fear the repercussions could be great.

These laws really are to benefit everyone—as we said, to create a healthy, open society, to help the media tell these stories and bring things to light. If we do not bring these laws forward and allow journalists have this protection, people will keep quiet. Things will slip under the carpet. People will not have their say and illegal activity and corruption will continue to evolve. That is something I think everyone in this house is against. We would all like a clear, open society. We would all like to see wrongdoings exposed and we would all like to make sure that South Australia is a better place.

I have a concern about the government not supporting this bill, and I think other people would have a concern, too. If you do not want to support that open dialogue, open communication and an honest, clear and transparent way of operating, people automatically think you have something to hide, and that is not what the people of South Australia would like or want.

This is a bill, I think, to ensure transparency, independence and confidence in the public to speak out when they see wrongdoing without fear of persecution. I think this is a value that we all encourage and it is a value that we would all like to see in our society. I support this bill. I think shield laws and the ability to have a healthy, open society, free of fear of persecution, are vitally important to all people in South Australia. Again, I support this bill.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:12): I thank those who have made a contribution to this debate, particularly the member for Mitchell, who has had the professional experience of being a journalist and understands firsthand what is faced by that profession. I thank him very much for making that contribution and being honest about that.

I ask all members here to be honest when they think about the consideration of this bill and what they have had to seek from constituents when they have come forward and they have said, 'I want to disclose an ill. I want to have this situation remedied. Please don't use my name. I will be in trouble if you do. I might lose my job. My wife might lose her job. I might be ridiculed publicly. But I want to have this issue exposed.' There would not be a member in this house who could honestly say we have not had people contact us, or provide us information anonymously because they state in that material their concern about repercussions of that disclosure.

We have whistleblowers laws in this state, which are under review, and we are waiting for a response from the government so that we might continue and hope to increase the transparency and protection for those who wish to keep governments to account and generally to keep bad people to account. This is what is important. Governments should not just be seeing this as something that protects them, hiding behind a High Court decision which has comprehensively been identified across Australia in other jurisdictions (including the commonwealth, the proceedings being initiated by a federal attorney-general) as being inadequate to give protection in this situation and allowing people to continue being silenced and intimidated into silence. That is not acceptable.

The Attorney-General has come in here and told this parliament his view that a code of ethics for journalists is just a nonsense. His own Premier stood up here yesterday and outlined a statement of principles—which we endorse and which we have asked for, and the late Bob Such stood in this house and introduced amendments to ask the government to sign up to a statement of principles and a code of ethics for members of parliament.

Yet the Attorney has the audacity to come in here and tell us that the code of ethics for journalists is just a nonsense. It is just not acceptable. I ask everyone in this house, and I particularly ask the Independents who maintain, they say, their independence, who must have been in a situation where their constituents have been under this pressure, to understand the importance of passing this law. It is absolutely critical for these important issues we have to determine, for us as a parliament to bring forward these issues to develop public policy and to make law reform when necessary.

It will remain silent, it will remain crushed into submission, if we do not ensure that we have this legislation and all the benefits of the media being able to get access to the public and let them know about issues of concern. It would be an utter disgrace. It would be shameful if we did not give South Australians that same protection. I am very disappointed that the Attorney-General has taken this view about something that has been so comprehensively embraced and identified as necessary across Australia and that he has acted in this manner. It is very disappointing and it can only add to the criticism of the government, when they continue to act in this way, not to provide us with that.

Surveillance law legislation has been argued in this house and defeated—again an active attempt to keep things secret. It is just not acceptable. The public will not accept it, and eventually people will revolt against this. This government needs to be warned. We will not have the hypocrisy of introducing a statement of principles for one group of persons in this community and then arbitrarily dismiss with insult a code of ethics for journalists in this country.

I ask the Independents to give this serious consideration. Be the voice of South Australians who have been pushed into silence and who are subjected to this type of control by this government. Speak up on this occasion. Please consider voting with us on this; it is critical for the voice of South Australians.

The house divided on the second reading:

Ayes 20

Noes 23

Majority 3

Second reading thus negatived.