Evidence (Journalists) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 21 June 2018.)

The Hon. F. PANGALLO (17:00): I rise today to speak to the Evidence (Journalists) Amendment Bill 2018, otherwise known as the shield laws. As a career journalist of more than 40 years, I wholeheartedly welcome any legislation that offers immunity from prosecution and protection to reporters, their employers and their sources. I will, of course, be supporting this legislation in principle albeit with some amendments that I and the Greens will be moving. This is because despite what the Attorney-General in the other place thinks, there lurks a devil in the detail. Comprising just four words this devil in the detail undermines the entire intent of the law so that there is not a shield at all.

Journalists have a responsible role to play in our free and democratic society. Their job is to not only inform an audience about the happenings in their world but they are also entrusted to tell the truth without fear or favour. As American President Thomas Jefferson once said, 'Our liberty depends on the freedom of the press, and that cannot be limited without being lost.'

Unfortunately, there are some countries where to be a journalist is a hazardous profession. The International Federation of Journalists says attacks and threats against journalists are at epidemic levels. Last year, at least 81 reporters were killed or assassinated doing their jobs. Last week in the United States, five newspaper editorial staff were shot dead by a deranged reader who had been the subject of an investigation and a longstanding dispute with the paper.

It has not turned lethal in Australia, yet journalists interstate have gone to gaol to protect their sources. When investigative journalists step on big toes, inevitably the threats come. I received them anonymously in the course of my former profession when exposing wrongdoing and corruption, and on one occasion a four-wheel drive attempted to mow down me and my TV crew. Those are the risks of doing your job.

Today, no thanks to the internet, the fourth estate is undergoing a tumultuous revolution, and not all of it is for the good. We have entered an uncertain digital era where sometimes it can be difficult to separate fact from fiction. Fake news is spreading like a virus due to the instantaneous nature of news reporting. With the rise of citizen journalists and bloggers, standards are slipping. The 24/7 news cycle is placing pressure on young inexperienced journalists to churn out content. Plagiarising without checking the veracity appears to be the norm these days, and I am sorry to say that.

Conspiracy theories also abound. Millions still believe that the 9/11 terrorist attack on the World Trade Centre was a US government plot and that the planes never crashed into the building despite hundreds of witnesses on the streets of Manhattan, many of whom relived their horrid accounts on live TV, which was beamed to tens of millions of people around the world. Similar scepticism abounds about the moon landing in 1969.

An honourable member: I was there.

The Hon. F. PANGALLO: You were there?

Members interjecting:

The PRESIDENT: Order!

The Hon. F. PANGALLO: Yes, one of the greatest feats of mankind, Mr President, and it is incredible to believe that people think it was faked. Of course, there are jet streams we see every day, and people are thinking that they are poisoning us. Who could forget the Armageddon forecast of 2012? To quote the Hon. Rob Lucas from this week: don't always believe everything you read!

Fact checking has become a casualty, and it seems to be contagious because even our own Attorney-General, when speaking about this bill in the other place, flaunted as some kind of martyr of her shield laws a former South Australian journalist, Chris Nicholls. For the record, Mr Nicholls did go to gaol not because he was protecting informants for his beat up story on a former Labor minister and former member of this chamber but to protect his own backside from his dishonest and unethical conduct.

I worked with Mr Nicholls and, unlike the vast majority of ethical journalists in the state, he is a very poor example of the standards this craft upholds and that this bill intends to protect. In taking a velvet-glove swipe at me in today's media, I would like to remind the Attorney that the program I worked proudly for for 23 years, Today Tonight, has been awarded many industry awards for excellence in investigative journalism. I am not saying we were always perfect, but we did our best, with the public interest of South Australians always at the forefront. Furthermore, the Attorney says she consulted with all the industry stakeholders and claims they were satisfied with the legislation, that she has created a perfect balance.

I recently met with all the major news organisations in Adelaide. While they are supportive of the bill, they did express grave concerns about one key area. I share their view that, as it stands now, the proposed shield laws are not actually a shield because there currently exists a provision for a court to override the shield protection if disclosure of the whistleblower outweighs the public interest or, those four words, 'on its own motion', as it is currently worded in the bill.

I will only be asking for the words 'on its own motion' in 72B(2), line 34, to be removed. The rest applies, including 72B(3), meaning a court could still undertake proceedings on the application of another party to determine whether public interest disclosure outweighs any adverse impact on the informant or other persons. All participants can then still plead their case before a court. Keeping the wording 'on its motion' means, in effect, that a court can make its own determination whether or not to overrule the shield. To do that, the court has to hear both sides of the argument, then make its decision.

Basically, though, it is asking a court to stand in the shoes of all the participants in reaching its own decision. This raises issues of objectivity and natural justice. It becomes, basically, the judge, the jury and the executioner. This is also inconsistent with other shield laws, including of the commonwealth, New South Wales and Victoria. We should be mirroring their laws, not standing alone. As it stands, those simple words, 'on its own', undermine the intent of the bill to actually have a shield, making it inoperable. All media organisations are concerned about it, and they have shown support for my amendment.

I briefly met with the ICAC commissioner, Bruce Lander, today on another matter and raised this concern that I have with him. He expressed a willingness to discuss it further with me, and I will take up that invitation as soon as is practicable. However, if passed in its current form, a journalist and their editors could never contemplate breaking a big story involving high-level government corruption or serious crime or law and order injustices which would risk exposing their whistleblower. These are the very types of stories which investigative journalists pursue and which would then attract the attention of officials looking to go on a witch-hunt.

The Advertiser's investigative reporters have broken significant award-winning stories over the years, and some of these would have undoubtedly drawn the attention of government investigators and prosecutors. Let me give you a glaring example of a major world-changing investigation that would not be told here because the informant and the journalists would face serious legal consequences despite the enormous public interest.

Bob Woodward and Carl Bernstein and their editor Benjamin Bradlee could not risk breaking their landmark Watergate story here as they did in the Washington Post back in the 1970s because they would have risked having to cough up their informant, codenamed Deep Throat. Deep Throat was W. Mark Felt, associate director of the FBI. He only outed himself in 2012. If a court, on its own motion, forced the Post to disclose the identity of its Deep Throat, Felt would have been crucified: hit with serious criminal charges and imprisoned for a very long time.

We also currently have an extraordinary situation in Australia where a commonwealth witch-hunt is underway to prosecute lawyer Bernard Collaery and a former intelligence officer for revealing that ASIS illegally bugged East Timor's government to seek a commercial advantage for the commonwealth. It was reprehensible conduct by a federal government agency, yet the authorities want to hang the messengers who believed it was in the public interest to disclose the bugging. They were acting within the law.

The federal Attorney-General has the discretion to decide whether or not to mount a prosecution but, in this case, it is still proceeding. This is an attack on free speech, and this is the type of prospect we would face in South Australia. Journalists should be watchdogs not lapdogs, as Newton Lee once said.

Debate adjourned on motion of Hon. J.S.L. Dawkins.