Evidence (Journalists) Amendment Bill

Second Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:51): I move:

That this bill be now read a second time.

What a pleasure it is to be called to be able to contribute to this debate which has been long awaited and which has been highly sought after by those who are seeking the protection of this legislation. My colleague the Hon. Andrew McLachlan introduced this bill in the Legislative Council in September last year with the blessing of those in the Legislative Council. By majority it has passed, we have received it and accordingly the matter is now before us for our consideration. This was after the wise deliberation of our members of the Liberal Party and crossbenchers in the Legislative Council who, during the course of the debates of this week, the government is hell-bent on neutralising. However, they are alive still and operating and they have considered this legislation and passed it.

Essentially this bill reflects work that has been done in 2013 and 2014 by the Hon. Stephen Wade and the Hon. John Darley in attempting to progress legislation to amend the Evidence Act, in particular to protect journalists in certain circumstances from being prosecuted and/or persecuted by dint of them undertaking their lawful activities. I will come to the detail shortly, but it is fair to say that this legislation, which has otherwise been known as shield law, is consistent with the Liberal Party's policy which we released before the last election on 29 October 2013. We made a commitment prior to the last election to the continued prosecution of this legislation and accordingly the bill was introduced in the other place by the Hon. Andrew McLachlan who is the opposition spokesperson on legal matters in that chamber.

It is fair to say that from the time that the Hon. John Darley introduced the original evidence protection legislation in February 2013 this has had a consistent repulsion from the Attorney-General and the government members generally. The Hon. Stephen Wade introduced his Evidence (Journalists) Amendment Bill 2013 and, as would be expected, principally because of the afflux of time, both bills lapsed with the prorogation of the parliament.

On 2 July 2014, the Hon. John Darley tabled his bill again and, similarly, the Hon. Stephen Wade tabled his bill. Essentially, they were identical to their respective 2013 counterparts. The substantial difference between the competing bills, if I can describe them as that, was that the Hon. Stephen Wade's bill extended the scope of the term 'journalist' to provide protection to a wider class of journalist, such as those operating as contractors or freelancers. This approach recognised that, with tools such as Twitter and blogs, the nature of news dissemination is evolving at a rapid pace and the broader protection was intended to accommodate that modernisation and is consistent with the scope of the commonwealth shield laws.

Secondly, the Hon. Stephen Wade's bill provided for continued protection to journalists and their sources when questioned by ICAC. So, it was not just with respect to questioning by other enforcement agencies, but to also be effective in protecting against investigation/questioning by ICAC. Essentially, the amendments incorporating the two distinguishing features were incorporated into the Hon. John Darley's bill, but those were voted down, of course, by the government in the House of Assembly, so we have started all over again.

The position is this, that if we are to seek to prevent journalists from being required to reveal their confidential sources and provide journalists with confidential source-to-journalist privileged communication, we need to change the Evidence Act to accommodate that to protect the rights of the individual against the capricious acts of the state. More specifically, the bill amends the Evidence Act 1929 so that journalists will only be compelled to reveal their confidential sources if the case fails the public interest test; that is, the public interest in revealing the information outweighs the potential detriment to the source.

We have traversed this at some length as to the substance and the basis of the bill and, I might say, the government has, in short, acknowledged that it is a bill that is broadly based on the commonwealth law, they take the view that the bill is unnecessary, that there is no mischief in South Australia and that it should not be provided for. Can I say in response to that, I think there is a very real danger that journalists are and will be at risk in this parliament.

At a general level, can I say that, in a liberal democracy, the media facilitates the rational and the critical debate which in turn provides an additional check on all the branches of government. Obviously I have outlined how the journalists will be protected then to enable them to use their skills to disseminate information for the benefit of the community. It must have this protection. They can then receive and recount information provided by those citizens who would otherwise feel constrained under the existing law to disclose sensitive information.

This is a measured legislative initiative as it allows for the courts to exercise a discretion and to order disclosure in certain circumstances where there are competing interests. What has happened in South Australia particularly is that government legislation is increasingly enlarging the power of the state's investigative agencies, yet at the same time there has not been a corresponding increase in the oversight of these same agencies.

All we are told is that there is criminal intelligence which justifies a particular cause of action. We rarely ever see this intelligence. In fact, the only time I can recall it is when the government wanted to have some changes to serious and organised crime initiatives by legislation. The police commissioner of his own volition brought down files which were confidentially viewed by members of the parliament. So, when it suits the government it will provide information, when it does not it is all kept protected.

Many people have to resort to defending their rights in a public sphere, and I do not doubt for one moment that every member of this house would have heard from people who say, 'I'm concerned about X. I can't speak out publicly. My union or association or representative body is in bed with the government or doesn't want to upset them. So, I'm coming to you, as a member of parliament, to try to help support me', or a family member, or someone in the workplace, 'to get some recompense to the executive acts which need to be dealt with.'

Of course, on a number of occasions they can take administrative legal proceedings, but of course that is expensive and it is not always available to those who want to raise concerns. So, the media is a very effective watchdog. It is one of those arms of our democracy which is supportive of the principal that the best antiseptic is sunlight. It has got to be transparent. There has got to be some capacity to shine a light where there are concerns.

The pointy end of the pencil here is the ICAC, and I was interested to read the contribution of the Hon. Rob Lucas in another place a few months ago when he raised the question outlining a number of cases where the government was under the microscope as having used the referral of cases for consideration by the Office of Public Integrity, and ultimately on that gatekeeping process in certain circumstances brought to the attention for investigation by the ICAC itself and the commissioner himself.

It is a concerning list as to whether the government is using this measure or the threat of this measure to keep people in line—sometimes in their own party, sometimes in their own departments. Well, we are yet to see, but it is very interesting to read the special report provided by the commissioner on the Gillman land deal. I will not go into the detail of those today, suffice to say that the risk to journalists being open and being that watchdog as part of our democratic process can certainly be curtailed or intimidated if there is a threat by someone at the government level to a journalist that there is an application waiting to be couriered over to the Office of Public Integrity should they progress with the publication of a certain story or allegation.

It would be a very powerful weapon to be used, if it is being used or misused. It is not acceptable that anybody in the community, including journalists, should be under this veil of threat. We on this side of the house, consistent with the bill introduced by Mr McLachlan and passed in the other place, supported by the crossbenchers, are of the view that the extent of this protection should also go to protect against questioning by ICAC—namely, to be commanded to attend and/or answer questions, or have their phones tapped to identify, for example, the name of a source of certain information.

We consider that to be unacceptable and we consider it necessary to ensure that—until we perhaps do have a chance to review and work through the operation of ICAC (which of course sits under the responsibility not just of this parliament but of the Crime and Public Integrity Policy Committee) as it has been laid out over the last nearly two years and to consider its operation and whether it needs to have more powers, less power, changed powers, extra responsibilities, etc. Meanwhile, I would urge members to consider this bill and to appreciate that in fact, by allowing this legal protection of sources to journalists and providing this shield law, they will encourage sources to provide information to journalists without fear or retribution and support a healthy democracy.

Mr GARDNER (Morialta) (11:07): I am very pleased to be able to speak on the Evidence (Journalists) Amendment Bill. I have been looking forward to the opportunity to speak on this matter all morning, as a matter of fact, and I am very pleased that we have the opportunity today to debate it. At the last election, the Liberal Party had a very clear position in support of an open society through shield laws, which was part of our manifesto and our commitments that we made to the people of South Australia. These shield laws are a concept that is understood in relation to the protections that journalists have in relation to protecting their sources, and this bill deals directly with that matter this morning. I commend it to the house. I urge all members to consider it.

A similar piece of legislation was put forward to the parliament in 2013 and it was blocked at that time by the Labor government. I have not taken the opportunity to check the detail of the Hansard from the Legislative Council debate of this matter, but I understand that the Labor Party as yet has not changed its position and the Labor Party still opposes shield laws that will protect journalists and protect the free and open debate and the conduct of that debate that shield laws would entail. We have seen journalists go to prison in this country. We have seen journalists put their principle of protecting their sources ahead of their own personal interests in the past. Without wanting to reflect on any individual case, I do not think that it serves the people of South Australia or indeed the people of our country particularly well to force them to be in that position.

I turn to the Liberal commitments made to the people of South Australia, and in particular the Leader of the Opposition, who at the last election said, 'People who alert the media to important public issues embody the core values of an open society.' That is something that we value. That is something that we want, and whether it be for our public servants who are blowing the whistle on a case of intolerable corruption or abuse of public process, there are a number of remedies that they may seek to take leaving themselves exposed to varying degrees of intimidation or varying degrees of victimisation from then on as they seek to redress a wrong that they see.

It is a time-honoured practice: there are cases when the appropriate course they see is to shine the disinfectant of sunlight onto an issue and to bring it to the attention of the public, and going to a journalist is often the way forward that they see. As we have seen, and as the member for Bragg has so eloquently described, journalists are often then at risk of their own personal freedom being taken if they seek to protect that source.

The Liberal commitment went further in our document at the 2014 election, and I just wish to quote a couple of paragraphs from it. Under the heading, Protecting the Public Interest, it states:

To maintain a healthy, open society, we need a free media. Journalists and media outlets hold interest groups, companies and government to account. They do this by publishing important information from a range of sources, many who risk their own wellbeing to expose information in the public interest.

If journalists are not able to provide their sources with assurance of anonymity, it is likely that critical information benefiting the public will not be passed on. This damages public debate, hides corruption and undermines accountability.

Again, I identify that sunlight is the best disinfectant because it not only brings to light those issues which are potentially currently subject to corruption, it not only exposes to public scrutiny those who are protecting themselves under veils of opaque public policy that protects them from scrutiny, not only does it deal with those potential current perpetrators who have the public interest furthest from their hearts and their own interest closest, it also acts as a disincentive to future perpetrators and it acts as discouragement if people know that they are likely to get exposed. If they are more likely to get exposed then it is far less likely that they will test the boundaries.

I think that a robust public debate is an excellent method of ensuring that people who might seek to otherwise corrupt the process are less likely to do so and are more likely to be caught. This bill will enhance the opportunity for journalists and the media to participate in that very important process. Continuing then on the topic of shield laws, in opposition, the Liberal Party's manifesto at the last election described:

Shield laws have 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 communication is privileged and journalistic source identity is protected. Despite the growing popularity of shield laws across Australia as state and federal governments recognise the need to protect journalistic privileges, South Australia still has no such protections in place.

The policy document went on to say:

Journalists, media professionals and the public have expressed concerns at the lack of legal protections for the anonymous journalist sources. The State Liberals believe that these concerns are well-founded, and is acting to ensure that shield laws are introduced in South Australia.

I note that the document said 'is acting' but, of course, if the Speaker, the member for Croydon, were in the chair he would be very quick to point out the plural is appropriate. The document continues:

Shield laws will ensure that journalists are not compelled by government, courts or powerful companies to reveal their sources or give away the origin of their information.

Journalists will only be compelled to reveal their sources if the case fails the 'public interest test': where the public interest in revealing the information outweighs the potential detriment to the source; for example, if a journalist has information about a threat to public safety.

Our commitment to shield laws is part of our Justice Action Agenda to ensure a fair, accountable government and transparent society. Shield laws support the media's legitimate role in uncovering often difficult evidence and then using that to hold the powerful to account.

That was the commitment we took to the last election. That was the commitment we undertook to implement had we, the Liberal Party, been elected to government, as of course a significant majority of the South Australian people attempted to do through their votes—90,000 more than supported the current government.

That was the scrutiny to which we were willing to be held because we support robust debate and the media has an incredibly important role in that debate. Their sources are important, and it is important they be protected. Earlier, I identified that a number of journalists have been willing to go to gaol to protect their sources, but that is not even the point. The fact that they are under threat of that prevents sources from coming forward to media in many examples. We want this to encourage robust debate, so this bill is worthy of support.

I hope the government will reconsider its position because, just as the Liberal Party—had it been elected to government—was willing to be scrutinised by a media emboldened by shield laws, I think this government should show that it has the courage and the confidence in its own performance to equally submit itself to the increased scrutiny of the robust fourth estate emboldened by shield laws, emboldened by protections such as this bill would create.

What do they have to fear? Surely a government that thinks it is worth its salt, a government that has any sort of courage in its own credibility will have nothing to fear from shield laws protecting journalists who are reasonably undertaking their duties. I am not talking about any danger to the public interest here; I am not talking about anything that is going to put the public at risk in any way. We are talking about journalists having reasonable protections.

As the member for Bragg outlined, we have a very secret ICAC in South Australia, the most secretive ICAC provisions in the country, so we want to make sure that those who wish in the public interest to blow the whistle on poor behaviour, maladministration or corruption and wish to bring that to public exposure, using sunlight as the best disinfectant, have the courage to do so. I commend the bill to the house. I commend the member for Bragg for her presentation and the Hon. Andrew McLachlan for bringing the bill forward.

Mr TARZIA (Hartley) (11:17): It goes without saying that the Evidence (Journalists) Amendment Bill 2015 must be supported by this government. As we, the freedom crusaders on this side of the chamber, have repeated time and time again, when it comes to this area, unfortunately South Australia is lagging behind the rest of the nation. When it comes to freedom of information laws and these kinds of laws, time and time again the government refuses to come into line and do what is right for the people of South Australia on this notion.

I see that there are members on the other side of the chamber smirking. They should look at some of the Hansard debates from their Labor comrades in other states and what they have had to say on this issue. What you will find—credit where credit is due—is that some of their colleagues interstate and federally have supported these kinds of laws. Why? Because it is a good idea to support them.

It is extremely important that the rights of individuals are protected, as the member for Bragg pointed out, against the capricious acts of the state. Protection of journalists is necessary in some instances. This kind of bill provides more consistency between commonwealth and state laws, which in turn is better overall. As I said, it has passed the other place. It has been supported by the crossbenchers there under their careful review and examination. It obviously encourages sources to give information to journalists without fear of retribution.

Notably, under this area it is very rare if there is any protection at all at common law to protect journalists from revealing their sources. It is important in a free and open society, as the member for Morialta pointed out, that these protections exist. Under the bill I note that journalists will be compelled to reveal their sources only if a case fails the public interest test. We would support that and ask the government to support the bill.

The bill strikes a very important balance between what would be the public interest of a free press and the public interest that we all share in justice being administered well. The bill, as has been pointed out, contains many provisions that if supported would provide somewhat of a shield for journalists from being expected to reveal their sources; and obviously a lot of the time their sources are confidential. As we have pointed out time and time again, it is imperative that the media are able to protect the rights of individuals against acts of the state.

It is no surprise that some on the other side of the chamber want to stop this from happening. Often we have seen whistleblowers in the Public Service who may not be happy with the government. On this side of the chamber we embrace people coming forward for the benefit of the state to point out the errors of the government. If these things need to be exposed, then, as the member for Morialta pointed out, sunlight can be the best disinfectant.

We are told that in many circumstances and in many areas there might sometimes be criminal intelligence which might justify some kind of course of action. However, a lot of the time this intelligence is not given and nor is it likely to be tested in court. A lot of the time it is used more like a stick than anything else. Our citizens have basic fundamental, long standing rights—and here we are fighting for them again—especially when they are under attack by our government. Citizens should be protected, because it is extremely important that they have the freedom to come forward and speak out. It is important that we have a free and active media which holds the government to account if it overstretches, if it overreaches, its power.

As the members for Bragg and Morialta pointed out, at the last state election we had a platform in this area; it was rejected by the government. If the government is serious about being a transparent government and not being the laughing stock of Australia, it needs to support these kinds of laws. The bill has had considered review by the other place and it had the support of the crossbenchers, which goes to the heart and the merit of this bill. It is not a bill about partisan politics. If it was, Labor colleagues around the nation would not have supported it, but they have.

It is important that where the common law does not offer protection we as the sovereign lawmakers of this state step in and put these laws into place. Our lives would not be the same if we did not have an open and free society and an open and free media. It is extremely important that we give journalists these protections. The overwhelming majority of journalists that I talk to are extremely professional. It is important that we give them these safeguards and measures in case they are given the wrong information or in case they ever need to come forward with it.

I believe the balance here is struck well between the free press, which is extremely important in the interests of the public, and justice in this state, and there are competing interests. There are certainly competing interests; however, in this state the government has got the balance all wrong. If it is good enough for most of the states in Australia to have these kinds of laws why then is South Australia trailing the nation? It is simply not good enough.

The Hon. Andrew McLachlan in the other place pointed to an example where respected Labor Senator Faulkner acknowledged in a debate some years ago (2009) how important the protection of journalists' sources is and how it is one of the most basic conditions of a free press. This has also been pointed out in other sources. Look at, for example, the European Court of Human Rights. As he pointed out and we are pointing out today, sources will not come forward and speak out and will be deterred from assisting the press without these kinds of protections.

It is absolutely ludicrous for anyone to suggest that this bill, or parts of the bill, are unconstitutional. It is just not the case. There obviously is a mischief, there is something that we are here to protect, there is a clear intention in this bill, and the government should support it. It is well set out. It goes on to identify who exactly will have cover under this bill. It goes on to also set out the liability that will be stopped from such journalists coming forward, and their sources.

It has been tested across the nation. It has been tested in all of the states across Australia and it should certainly be supported, because free media is essential to any free, democratic and just society. Some may say that the bill might go too far to one side and perhaps too far towards the journalists' side, but we do not agree on this side of the chamber.

We also clearly reject the discussion that says that the ICAC will be undermined if the bill goes ahead. It is absolute garbage to suggest that and it is extremely important that we support this bill. It has passed the other house and should pass this place, and I commend it to the house.

Mr PEDERICK (Hammond) (11:27): I rise to support the Evidence (Journalists) Amendment Bill that was introduced last year in the other place by the Hon. Andrew McLachlan. This bill certainly recognises the critically important role that the media and the profession of journalism plays in protecting the rights of the individual against capricious acts of the state.

Certainly, we all have interactions with media—some are better than others—and we need the media to operate well in this state and, obviously, the media needs to report on matters in this place and matters concerning the constituencies of all members in the state as well. We all have great relationships with members of the media and I think the protection of the media's rights in relation to information that is given to it creates the proper setting for the free press to operate and to get that news out to the world. Otherwise, if the media was under threat of exposing its sources, it would just be the end of the free press in this state. The simple fact is that is not the way to run a state. We are not a communist state. We have seen some terrible things—

Members interjecting:

Mr PEDERICK: Some interesting comments around the chamber. We have seen what has happened to people who appear to have been unfairly charged in Egypt in the last few years and that brings to mind what can happen if members of the media are treated unfairly. I note that this bill extends right through to freelance journalists and other prescribed persons. I seek leave to continue my remarks.

Leave granted; debate adjourned.