Evidence (Journalists) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 May 2018.)

The DEPUTY SPEAKER: Member for Kaurna, are you the lead speaker?

Mr PICTON (Kaurna) (17:39): I am the lead speaker, but once again, outrageously, I will not need the unlimited time available to me. There are only three pages, so I do not think I will trouble 20 minutes with that.

I rise today to indicate that the opposition will not be opposing the journalist shield laws being introduced through the Evidence (Journalists) Amendment Bill 2018. Journalists are not much different from people in this chamber or those in the other place, in that they are first and foremost servants of their communities. Journalists provide their communities with information. They are their communities' record keepers. They share stories between neighbours of each other's successes and failures. They pass on warnings to be heeded and, importantly, they are entrusted with the responsibility of holding governments, big corporations and other interest groups or powerful individuals to account.

The bill amends the Evidence Act 1929 to introduce a default position that journalists cannot be compelled to answer a question or produce any document that may disclose the identity of a confidential informant. Along with Queensland, South Australia is one of two remaining states in Australia yet to enact specific privilege laws dealing with journalists and their sources. The effect of the bill will be to preclude a journalist, or a prescribed person in respect of a journalist, from incurring criminal or civil liability in most official proceedings for failing to answer questions or produce material that may disclose the identity of an informant.

Previously, those on this side of the chamber, although we were on the other side at the time, have raised reservations around these changes. We have now had time to consult, reflect and review our position and we will continue to do that. Defining a journalist today is not as clear cut as it once was. Yes, some journalists may base themselves in the newsroom of a paper, a television station or a radio station. However, some journalists may find themselves constantly on the road, filing his or her stories from an external location. They could be a one-person newsroom who runs a website or a blog from their living room. They could be a freelancer or primarily engaged on social media.

This bill's definition of a journalist is broad and identical to the definition used in the New South Wales and Western Australian legislation, with the important distinction that the South Australian bill provides for classes of persons to be excluded or included in the definition by the regulations. This power was reiterated by the Attorney-General, where it was described as a means to ensure the flexibility of the law in the face of a rapidly changing media landscape.

Putting aside the particulars of this specific bill, principally this is an important piece of legislation that will ensure the protection not only of the sources who are brave enough to speak out against a higher authority but of those who have the strength to voice concerns or expose information that might prevent a neighbour from being harmed, mistreated or misled. It will protect not only the sources but also the journalists who are willing to share their stories and put their own name in ink next to it.

We are looking forward to working with the government to implement these protections, allowing journalists and their sources the discretion they deserve in order to protect their communities to the very best of their abilities. I am sure that, as per other bills in this house, there will be a number of questions that our shadow attorney-general will be pursuing and will question in the other place. With those words, I once again indicate that the opposition will not be opposing the bill in this house.

Mr ELLIS (Narungga) (17:43): As a former journalist and the son, grandson and great-grandson of newspaper proprietors and editors who have successfully run regional newspapers over three generations—and it would have been four had I not been fortunate enough to win the most recent election—I am proud to rise to speak about the Evidence (Journalists) Amendment Bill this evening.

Shield laws for journalists are long overdue in this state and will protect news sources where it is clearly in the public interest to do so. Given my family history, I am in the prized position to know firsthand the power of the media and the vital role they play in going in to bat for the underdog and the vulnerable, for the victim of unfair play or the cause that needs support quickly. In fact, I would argue that the vital role they play is underappreciated and one that deserves more recognition.

The media can provide a societal moral compass, a leveller for common sense and a voice when there is nowhere else to go for help. I will always support journalism and the role that it plays in ensuring that wrongdoings are held to account, that corruption is exposed, and that maladministration is uncovered. That being the case, it is no surprise that members opposite opposed this very protection whilst they were in government. Regional newspapers especially are renowned for the causes they support, which lead to change for the communities they serve. I have seen how our newspaper is approached by people in need of a voice when every other avenue for help has been tried and failed and a community action is needed.

The two newspapers in the Narungga electorate—the Yorke Peninsula Country Times and the Plains Producer, and their editors Nick Perry and Les Pearson, who are both award-winning editors in their own right—are both highly respected because the journalists within those publications care about the readership they serve and the actual communities they live in. Both publications are held as bibles for the locals who rely on them for information to know the issues of the day, what is on, when and where, and who is doing what.

The success of regional newspapers is derived, I believe, from the fact that the journalists are locals who live in the community they serve. They are seen at the local shop and at the local sporting field. They are volunteers on committees and are mindful that all actions and words published will be judged personally by readers, and they will be told face-to-face what is thought of their work by the person affected when they next meet down the street. It is a very practical way of being held to account. The personal side of regional journalism also ensures contact books are full, and that an open-door policy for editors is essential.

Yes, Facebook and other social media also provide information and are valuable communication tools, but for many, particularly in the regions, the mantra still holds true that if it is in the local paper, it is fact. The sources are credible and the work of a hardworking journo is backed by a strong code of ethics. We trust local journalists to print the truth and facts without fear or favour, propaganda or self-interest, and in order to preserve this integrity, to preserve this trust that what they are writing is accurate, the amendments proposed in this bill are vitally important.

Once respect for a journalist is lost, it is lost forever. It is imperative that whistleblowers seeking assistance from the media to shine needed light on corruption, maladministration and wrongdoing can approach with confidence that their information will remain confidential. It is equally imperative that journalists can use that information they receive without fear that disclosure will result in gaol time.

For journalists, loyalty to the source is paramount. Protecting sources has been described as the golden rule of journalism to override all other considerations, including the administration of justice. Journalists want to protect their own personal reputation to ensure sources will trust them in the future. Then there is the wider chill effect: once a journalist gains a reputation for betraying confidences, the entire profession is tainted and sources potentially dry up for everyone. Protecting sources is also critical to ensuring a free flow of information to the public, which is an essential requirement of a healthy democracy.

This bill also follows a well-publicised and welcome Marshall government push for increased transparency, openness, government accountability and informed public debate across all sectors of our community and agencies, a pledge I am particularly delighted to support. Secrecy, cover-up, lack of transparency, and dictation rather than respectful engagement in recent years have led to escalating levels of constituent cynicism and mistrust in governments of all tiers and across all sectors. This public disappointment, bordering on despair, is in my belief severely impacting, at the very least slowing, the implementation of any change, reform and improvements that are so sorely needed.

The cynicism and public switch-off from politics and politicians in general have also served to increase the need for a moral compass provided by the media and an upsurge of the 'power of the people' mantra. Our side, the Marshall Liberal government, proudly stands for increased transparency and the accountability that naturally follows, believing that if people can see and hear what is going on, some level of trust will be restored and a renewed sense of community camaraderie and working together for each other can follow.

The damage that cases like Gillman and Oakden, chemo overdosing and underdosing cover-ups in our public health system and child protection issues highlighted by the Chloe Valentine case cannot be underestimated and will take considerable time to restore. Having been outside this parliament when those stories broke, I can attest to the shock felt by the community that such things can be allowed to happen under any government's watch. Much has been written in the media of late about the rise of distrust in government, and these examples have certainly not assisted in this area.

Key factors in building public trust are openness, transparency and real engagement in decision-making to demonstrate unequivocally that the public good has been addressed. Our new SA government has, I am proud to say, already taken steps to make the Independent Commission Against Corruption more open and is considering improvements to the freedom of information processes, which is also supported by South Australia's public sector watchdog in its calling for an overhaul of freedom of information laws due to its belief that current processes are costly and cumbersome.

As SA Ombudsman, Wayne Lines, told The Advertiser back in April, the whole point of freedom of information is to allow transparency of government decision-making and for taxpayers to know, for instance, where the money has been spent and to make sure it has been spent wisely and prudently. Mr Lines declared, 'The more limits there are on secrecy the better it is for democracy.' His comments were backed by Associate Professor Rick Snell, a University of Tasmania law lecturer considered one of Australia's foremost freedom of information experts.

He said that Third World countries have better FOI laws than SA. I quote him, 'There is nothing in the Act robust enough to cope with today’s spin doctors and information management.' Although I would add personally that the South Australian public seemed to see through the spin doctors on 17 March. Included in his suggestions for improvements was finding and publicly naming ministers and heads of government departments found to be interfering with the process. Professor Snell commented, 'People were still using Commodore 64 computers when the legislation was created,' which is indicative of their outdated nature.

The current royal commission looking at banks and the financial sector has also highlighted the need for increased transparency and openness, as has the scheduled anticorruption inquiry into SafeWork SA, with the Independent Commissioner Against Corruption, Bruce Lander, set to hold his first open hearing for this inquiry on 1 June. This bill today to protect whistleblowers is a natural flow-on from those efforts.

The development of good public policy is rarely successful when just a handful of public servants or politicians push through or dictate change using restricted debate and access to key information. There has never been a more important time for protections to mainstream media to restore some faith in the leadership and motivations of governments. With the advent of fake news and social media spreading misinformation, it is vital that journalists feel comfortable running factual stories.

With today's ability for anyone to easily set up an online campaign and reach thousands quickly and easily based on lies or otherwise, more and more corrupt behaviour is occurring, affecting increasing numbers of people. You only need to keep up with the list of scams circulating at any time to know there are very professional but sinister communicators from around the world infiltrating our lives in South Australia. It is little wonder that people have become disengaged and confused by who to trust.

The Liberals have long backed the introduction of new shield laws of legal protection for our journalists. It has been noted previously that we have been waiting long enough, as SA and Queensland are now the only states without said shield laws. I believe the right balance is achieved with a bill that allows for the impact of the disclosure of the informant and that a court can order the disclosure of confidential sources in limited circumstances, if the end is warranted, where it is believed that disclosing the source outweighs any adverse impacts it may have on the source or the value of maintaining a free press.

The new protections will apply in instances where keeping sources confidential was clearly in the public interest, but it is noted that judges will be able to threaten punishment in instances where there is a greater good in discovering the identity. Importantly, in developing this bill, consultation has occurred with media stakeholders, the Independent Commissioner Against Corruption, the Ombudsman, SAPOL, the Australian Criminal Intelligence Commission, the Law Society, the Chief Justice, the Director of Public Prosecutions and the Crown Solicitor, so this bill is not offered lightly. We advance it in the interest of transparency, openness and informed public debate—the cornerstones of effective leadership and governance. I commend this bill to the house.

Sitting extended beyond 18:00 on motion of Hon. D.G. Pisoni.

Ms WORTLEY (Torrens) (17:55): I rise today to speak on the journalist shield laws to be introduced through the Evidence (Journalists) Amendment Bill 2018. We have already heard from my colleague the member for Kaurna, who indicated that Labor will not oppose the introduction of shield laws through this bill. I have spoken previously in support of shield laws in many forums at a state and national level, including in this chamber and in the Senate of the federal parliament. It is fair to say that over time there have been some on this side of the chamber who have raised reservations around the introduction of journalist shield laws, and I know that it has been the same for some members sitting opposite as well.

I am pleased that our caucus has been open to further consultation and listening to the arguments surrounding the need for journalist shield laws. I am particularly pleased to be able to play a role in this review of support for shield laws and will continue to do so in relation to the bill before us. For the record, I have throughout my time in this place worked towards securing support for the introduction of shield laws, and it is my view that we should not withhold legislating for protection for ethical journalists because of the handful of journalists who do not have regard for the Australian Journalist Code of Ethics.

It has at times been an argument with which others have not agreed. In the course of their employment, journalists are frequently given off-the-record information from confidential sources. The current situation in South Australia is that if a court compels a journalist to reveal his or her sources, and they do so, the journalist is in breach of their professional ethics and, of course, genuine sources would be reluctant to come forth in the future. If a journalist refuses to reveal the identity of a source, despite being ordered by a court to do so, they risk criminal prosecution for contempt of court, a conviction that can have many consequences, including being denied a visa to travel within some countries, impacting on both personal and work-related travel.

We have already heard that South Australia and Queensland are the only states today that have not enacted specific privilege laws dealing with journalists and their sources. The Media Entertainment and Arts Alliance says that the situation has a chilling effect on journalism because borderless digital publishing allows for jurisdiction shopping, effectively creating a situation where a subpoena can demand a journalist be compelled by a court to reveal their confidential sources even though the journalist and their media outlet do not operate or reside in that state.

The journalist would then face not only the expense of defending themselves in the state away from their home base but also the full wrath of the court if they were found guilty of contempt for simply having maintained their ethical obligation not to reveal the identity of their confidential sources. There are some reasons that parliaments across Australia have been slow to introduce the shield laws.

It is imperative that the Australian media behave honourably and responsibly in their pursuit of truth and dedication to informing the public. Those who abide by journalist ethics are doing their profession and our democracy a great service. Journalists should never lose sight of their role not let their standards drop.

The bill before us today amends the Evidence Act 1929, introducing a default position that journalists cannot be compelled to answer a question or produce any document that may disclose the identity of a confidential informant. The effect of the bill will be to preclude a journalist, or a prescribed person in respect of a journalist, from incurring criminal or civil liability in most official proceedings, for failing to answer questions or to produce material that may disclose the identity of an informant.

The bill's definition of 'journalist' is identical to the definition used in the New South Wales and Western Australian legislation, but it is narrower than that in the commonwealth law, and it allows for variation of the definition by regulation—issues raised by the Media Entertainment and Arts Alliance, and a number of other media organisations.

This is an important piece of legislation. I consider it to be just the beginning of providing some protection for journalists and their sources in South Australia. Journalists should never be convicted for adhering to the code of ethics, doing their job accurately and acting in the public interest.

Mr CREGAN (Kavel) (18:00): I rise to support the second reading of the Evidence (Journalists) Amendment Bill. This bill is an essential ingredient in our platform to advance transparency and openness in public debate. It is also part of a larger suite of legislation directed at opening up the scope of information available for public scrutiny in South Australia.

In practical terms, the bill amends the Evidence Act to introduce a qualified privilege for journalists who might otherwise incur civil or criminal liability for failing to disclose the identity of an informant. Media Entertainment and Arts Alliance Chief Executive Paul Murphy has made clear that, without the legislation, journalists in our state risk gaol for performing their role ethnically and protecting vulnerable sources. Mr Murphy has remarked:

Public-interest journalism often relies on whistleblowers and other people who are brave enough to come forward and provide information. To be able to do that, they need a commitment from a journalist that their identity will be protected.

The privilege we propose is different in important ways from other privileges, for example, the privilege that exists between solicitor and client, doctor and patient and in some other professional relationships. The form of the privilege we now propose can be modified or extinguished by a court in the exercise of its discretion. The court's discretion is fettered pursuant to the operation of the proposed section 72B(3)of the Evidence Act. That section, if passed by this house and in the other place, would provide:

The court may only make an under subsection (2)(a) if it is satisfied that, having regard to the circumstances of the case, the public interest in disclosing the identity of the informant—

and there follows a number of paragraphs—

(a) outweighs any likely adverse effect of the disclosure on the informant or on any other person; and

(b) outweighs the public interest relating to the communication of information by the news media generally; and

(c) outweighs the need of the news media to be able to access information held by potential informants.

It is important to reflect that the legislation recognises the need of the news media to access information held by informants. This is not just a change in the law but a change in philosophy and the direction of government. Of course, we have not brought on glasnost—we are more thoughtful than that—but the changes we are making reflect our principled belief that open and informed public debate better serves the public interest overall.

In assisting the Attorney to bring this legislation to the house, I have had the benefit of reading a paper prepared by Ms Lorraine Ingham, at that time an intern with the Special Broadcasting Service. Ms Ingham observes:

A journalist being compelled to reveal his confidential source in court faces a dilemma. On one hand, the journalist has a loyalty to the source, to maintain the secrecy of his or her identity. On the other hand, the courts require full disclosure of all relevant evidence in order to administer justice between the parties. This has led to a tension between journalists and the courts, which has been described as a 'worship of fundamentally different gods'.

Ms Ingham goes on to remark in her paper:

Journalists who refuse to give evidence may be found to be in contempt of court. Several Australian journalists have been sent [to gaol] for protecting their sources. But, given the important role the media plays in Australia's democratic system, imprisonment of journalists sits uncomfortably with law makers…

It certainly sits very uncomfortably with those on this side of the house.

As well, I have had the benefit of considering the report of the Senate Standing Committee on Legal and Constitutional Affairs, 'Off the record: shield laws for journalists' confidential sources', prepared in October 1994. The report retains its utility despite the passage of some time. At chapter 4, page 37, there is a conventional statement of the role of the media alongside that of the executive, parliament and the judiciary as an essential part of any democracy. I read into Hansard evidence given to that committee by Mr McLachlan, then general counsel of the Nine television network:

Mr McLachlan—If I can just pick up on two themes, as I see them. On the role of the media as the fourth estate, obviously it is our belief that the media has a very important role to play in ensuring the maintenance of our democratic society. It does act as a watchdog and provides a forum for accountability of the exercise of public and private power. The importance of the media in that regard is internationally recognised in a number of international treaties and instruments to which Australia is a signatory. So we say that freedom of expression and freedom to publish are of the utmost importance in maintaining the fourth link in the whole estate.

Judicial statements stop short of recognising the part the media play in Australia's constitutional balance. A reading, for instance, of Nationwide News Pty Ltd v Wills or Australian Capital Television Ptd Ltd v Commonwealth is not a fruitful one if the reader is seeking a statement that would protect journalists from an order to deliver up the names of sources or reflect on the way in which the information for stories has otherwise been gathered.

The decisions do, however, emphasise the essential character of political communication in preserving constitutional rights, however limited those rights might ultimately prove to be. In any case, the decisions emphasise the importance of the legislation we have now brought to the house. It is important to observe that these measures do not always serve the interests of the government of the day. We are now the government of the day, and there is some courage required to adopt these changes. I recall the previous government's steadfast objection to some of the reforms we are now introducing. We are adopting them nevertheless, believing that they are in the interests of the state.

The privilege we are conferring is, of course, a powerful one. We are conferring it at a time when there is an assault on the very nature of the media, especially traditional long-form media, which I cherish and which, though I am perhaps younger than some members of this house, I see as vital to our democracy. I also see it as vital that it continue in its present form. Competitive pressures and changes in the media landscape are producing at times a form of journalism that is hyperpartisan. Mr Speaker, you know I have reflected before on the damage hyperpartisanship is doing to our democracy and to confidence in our democracy.

The damage that new journalism can do and is doing to our democracy is, in my respectful view, also significant. Just as we would do better to avoid hyperpartisanship, journalists would, I think, do better to ensure they continue to distinguish clearly between opinion and news. I am not opposed to contrary opinions. I have plenty of my own, and one of the reasons I remain a lonely consumer of long-form journalism is so that as a daily habit I am forced to consider those contrary views. I feel, however, that the admixture of opinion and news—that is, the failure to adequately distinguish between fact and opinion—is a corrosive force.

I say respectfully that nothing will diminish the standing of any news outlet more quickly than the widespread knowledge that a journalist or an editor has become a participant rather than an observer. It is proper that each journalist, being a citizen, takes the natural interest in democracy that each citizen must take, but journalists, in my respectful view, are journalists and not citizen journalists; they are first and before anything else reporters of fact and not reporters of their own opinion, however urbane that opinion may be. Thank you for your indulgence.

Mr McBRIDE (MacKillop) (18:09): I wish to express how fervently I support this bill and the proposed amendments that will offer support and protection to journalists. These individuals provide a great service to our community. As the Deputy Premier so eloquently put it, the media facilitates the rationale and the critical debate, which in turn provide an additional check on all branches of government. At this time, four Australian states, including the Australian Capital Territory, have shield laws in place to protect their journalists. It seems time that South Australia follows suit, as it would, in my eyes, be deemed an injustice for these people to be criminally prosecuted or persecuted for honouring the confidentiality of their sources and for doing their job—a job that is so instrumental in the function and flow of the everyday.

Furthermore, transparency—something that will be achieved by the implementation of this bill—is a cornerstone of what this government is striving for and what it should always have endeavoured to achieve. How can we not protect these individuals who maintain this transparency and accountability in those with the power to create change for the people of South Australia? In MacKillop alone, we have five local newspapers: the Border Chronicle, the Naracoorte Herald, the Kingston Leader, the Penola Pennant and The South Eastern Times in Millicent. We also have infiltration from The Border Watch from Mount Gambier.

Radio is also a major source of information for the constituents of MacKillop, with people tuning into 5THE FMMillicent community radio, Triple Mradio at Mount Gambier, as well as our ABC radio, also based at Mount Gambier. The journalists who work tirelessly to support these news sources are faced with seven-day work weeks, often going through the night to provide the best material for the public. The public in question are nothing but grateful, with many of them preferring to read the newspaper and listen to the radio, rather than tune into online news.

This makes these journalists absolutely instrumental in maintaining the flow of information to the majority of constituents in MacKillop and many other country electorates, as they heavily rely upon them to do so. This kind of relationship has inspired a loyalty between the public and the journalists of these news sources—a loyalty that journalists are acutely aware of, prompting such statements around as preferring to go to gaol rather than to dob in their sources.

This is especially important to journalists in my electorate, who have brought to light the lack of protection in place against their own employers. Clearly, a response of this nature can only foster a better flow of information if shield laws were to be implemented. As the Deputy Premier noted in her second reading, protection of journalists and their informants is highly likely to prompt other members of the public to come forward with vital information in the case of major investigations.

Once again, I wish to reiterate the importance of putting this bill through at this point in time to support journalists to report as fully and frankly as possible, without fear of going to gaol over dishonouring the confidentiality of their informants. The fear of gaol is an alarming reality that those in the profession should not have to accept in order to do their job. It truly is about time that we start doing something to help journalists and their informants to continue providing information to the public, and forcing all of us to come to terms with the truth as observed by the public and those that we are honour-bound to serve. I commend the bill to the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (18:13): I rise to thank all the speakers who have made a contribution to this debate, particularly the member for Kaurna's indication on behalf of the opposition of their support for this bill. Having reflected on the matter since their period in government, they have found their way clear to support this bill, and we are appreciative of their consideration and welcome their support.

I also acknowledge the other speakers who have made a contribution: the member for Torrens, who has had a prior career in journalism and whose comments were welcome; and some of our newer members, who have made a very valuable contribution to this debate in outlining the practical, on-the-ground significance of those who work hard every day to shine a torch on matters of public interest and to publish the same.

To the best of my knowledge, the last person who was imprisoned in South Australia as a journalist for contempt of court was the ABC's Chris Nicholls in 1993. He spent three months in prison in South Australia after refusing to disclose information about a matter concerning the business interests of a former Labor tourism minister and her partner. It was a controversial issue of the day but a matter in which Mr Chris Nicholls staunchly maintained his position, and ultimately he was released. No-one should have to go through that again, and with the passage of this bill that will not occur.

There have been others, just for the interest of members. In 1992, which was a year before that, in other states The Courier Mail's Joe Budd was imprisoned for a week in Queensland. In Western Australia—they do all sorts of peculiar things in Western Australia—in this category in 2013, the Western Australian Supreme Court ordered Hancock Prospecting to pay Fairfax journalist Adele Ferguson's legal costs in a battle over revealing her sources, and in 1989, The Australian's Tony Barrass was in prison for a week after declining to reveal sources of confidential tax information. In New South Wales in 2007, two Herald Sun journalists, Michael Harvey and Gerard McManus, were fined $7,000 each for refusing to reveal their sources for a story on the then alleged shabby treatment of war veterans by the federal government.

Other states have acted. They have remedied this situation. It is time that we did it here. I am very pleased with the passage of this bill. I say, that if there is any opportunity for any of those who were around and understood what happened in Mr Nicholls' situation, they, too, I hope will be pleased, after what he went through, that this legislation will see favour through the parliament. At this first stage, I welcome the same.

Bill read a second time.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (18:17): I move:

That this bill be now read a third time.

Bill read a third time and passed.