Evidence (Journalists) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 31 July 2018.)

The Hon. R.I. LUCAS (Treasurer) (11:25): I thank honourable members for their indications of support for this bill. I will briefly address a couple of points that have been raised in the second reading debate. The Hon. Mr Pangallo expressed concern that the ability in the bill for a court to make an overriding order for disclosure of the journalist's source on its own motion without the need for an application from a party to proceedings is out of step with other jurisdictions and gives the court too great a discretion.

The reason for including the 'on its own motion' power in the bill is to reflect the fact that this bill applies the shield protection more broadly beyond traditional court proceedings to courts and proceedings as defined in the South Australian Evidence Act, which will include a tribunal, authority or person invested by law with judicial or quasi-judicial powers and proceedings where evidence is taken.

As previously stated, this includes ICAC hearings but also royal commissions and Australian Crime Intelligence Commission examinations. In those types of hearings, there will generally be no opposing party who would be seeking to obtain disclosure of the identity of the source. Rather, it would be the investigating body, for example, ICAC or the Australian Crime Intelligence Commission, applying a public interest test and needing to be satisfied that that body's need to know and the public interest in knowing the identity of the source, for example, to properly investigate a serious allegation of corruption or to investigate serious and organised crime, outweighs in the particular circumstances the public interest in protecting sources.

However, while emphasising the need for the own motion power in these non-traditional court proceedings, the government remains concerned to ensure that the protections afforded to journalists and their sources by this bill are as robust as they can be. Therefore, I indicate that the government intends to support amendments filed by the Hon. Mark Parnell—

The Hon. M.C. Parnell: Good call.

The Hon. R.I. LUCAS: I thought you might say that—that would limit the circumstances where the shield can be displaced by a body on its own motion to the types of proceedings where there will not be a party in a position to make the application for disclosure. I again thank members for their contributions and look forward to the expeditious passage of this important legislation.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–1]—

Page 2, clause 3, lines 16 to 18 [clause 3, inserted section 72(1), definition of journalist]—Delete the definition and substitute:

journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium;

I appreciate that the council has a couple of matters to consider. There is this particular amendment; there are some related amendments; and, there are the amendments of the Hon. Frank Pangallo, and they all go to the threshold question of what is a journalist and what category of work, if you like, or what type of person ought be able to be protected by the shield law.

The definition that I am proposing is slightly different from that in the original bill in a couple of respects, but I will say at the outset that the definition I have put forward is one that was championed by media organisations themselves. They wrote to all members of parliament, and this was their suggestion for the definition of journalist.

I would also say, by way of introduction, that there does appear to be a degree of commonality about the types of people we think are not journalists. The general thinking, I think, was that the casual blogger, the occasional person who participates in online discussion forums, the person who occasionally tweets or puts up a Facebook post, is not a journalist, that there is a higher standard to be met.

The standard I am proposing is that a journalist is a person who is engaged and active in the publication of news, and who may be given information by an informant in the expectation that the information may be published in a news medium. The government's definition is simpler in a way in that it talks about someone who is 'engaged in the profession or occupation of journalism', which is not defined, 'in connection with the publication of information in a news medium'.

The other aspect of the government definition is that the definition is itself subject to modification by regulation and, whilst I will address that particular issue in more detail later, I just make the point that the approach that the Greens take in this bill, as we take in many other bills, is that, whilst it should be possible for the executive through regulation to add to the range of people who gain the protection of a certain law, it should not be appropriate for the executive, through regulation, to weaken the law or to take people out of the definition. That is what the bill currently says, where, in clause 3(2) it says:

The regulations may specify classes of persons who are deemed to be included in, or excluded from, the definition of journalist...

Now, that means—and it is not just this act or this bill—that, in lots of legislation, the work of this parliament can be completely and utterly undone by the executive through regulation by simply excluding vast categories of people from the protection of the law.

Members might think, 'Well, hang on, those regulations, of course, are disallowable,' but, as we know, that power is a very blunt instrument. A regulation that is gazetted at the start of the summer break or the winter break will not be able to be disallowed for some considerable period of time. We also know that, even when a disallowance motion is successful, governments can reintroduce the same regulation.

My favourite goes back—the Treasurer will remember this—many, many years: I think it was a regulation about school fees and whether school fees could be compulsorily collected from parents in state schools. My recollection—it was before my time in this place—is that the regulations were disallowed and continually reintroduced. The result was that the law was valid for three-quarters of the year and invalid for one-quarter of the year. That is a ludicrous way to go.

I know I said I would talk about it in more detail later; I will not now because I am talking about it now. Basically, we are not happy with the ability of the government, through regulation, to diminish the category of people who fall within the definition of journalist, but we are happy for the government to expand on the definition and therefore the range of people who are included in that definition. So I move the amendment. Like I said, this is the preferred wording from the combined media organisations that have written to all members of parliament.

The Hon. R.I. LUCAS: I indicate that the government opposes this particular amendment. This amendment will substitute the definition of journalist in the bill, which is based on the definition used in New South Wales, Victoria and Western Australia, with the wider definition based on the commonwealth definition. The intention of the bill is to limit the application of the journalist shield law to persons engaged in the profession or occupation of journalism, whether that be on an employed or freelance basis, while at the same time ensuring that the definition does not limit the application of the protection to traditional forms of journalism, such as print and TV media.

The Hon. Mr Parnell's proposed wider definition could apply to a part-time citizen blogger contributing to a website that may fall within the definition of a news medium for the purposes of the legislation. Professional journalists are generally bound by standards of practice and a code of ethics that requires them, for example, to aim to attribute information to a source and to consider an informant's motives and alternative sources before agreeing to anonymity.

A concern with the wider definition in the amendment from the Hon. Mr Parnell is that it could allow unscrupulous people, not bound by journalists' ethics, to seek to hide behind the protection—for example, to defame a person as part of a personal vendetta—and claim to have been given the information by a source, who in fact may be fictitious, or to facilitate a source with such ulterior motives.

The Hon. F. PANGALLO: I take note of the Hon. Mark Parnell's amendment and I am happy to support his amendment. The intention here would be to include rather than not exclude people in that area, so I am happy to support Mr Parnell's amendment.

The CHAIR: Does that mean that you will not be moving your own amendments?

The Hon. F. PANGALLO: No. 1?

The CHAIR: Yes, amendment No. 1 [Pangallo-1].

The Hon. F. PANGALLO: Yes, Nos 1 through to 3.

The CHAIR: At the moment, we are just considering amendment No. 1 [Pangallo-1], so are you not going to move that?

The Hon. F. PANGALLO: I will not be moving that one.

The CHAIR: You will be supporting the Hon. Mr Parnell. Leader of the Opposition.

The Hon. K.J. MAHER: As I indicated in my second reading contribution, we have had submissions stating the merits of both expanding and contracting the definition of journalist; that is, as the Hon. Mark Parnell's amendment seeks to do and, similarly, as the Hon. Frank Pangallo's rival amendment would seek to do, to increase the number of people who might be covered by the definition of journalist, which is more consistent with the commonwealth act.

We have also had those who have made representations that it should be further limited in its scope than what appears in the bill. As I think I said in my second reading speech, that is limited further to perhaps membership of a professional body or a requirement to adhere to a code of ethics in relation to journalist standards. We have reservations about the regulation-making power, both about being able to expand it and contract it by regulation. As the Hon. Rob Lucas has said in this chamber a number of times, things should be in bills rather than by regulation where that is able to be done. However, regulations are disallowable instruments, so if there was overreach in terms of contracting, or for that matter expanding it too far, it is up to a house of parliament to do that.

On balance, the opposition will be supporting the government's definition of journalist and not supporting either of the rival amendments from SA-Best or the Greens. That does not mean we think it is perfect and if there is evidence that this is not working in the future, we are, as opposition, very open to coming back to parliament and making amendments to the legislation if there are things that are not working with it. But, as the Hon. Rob Lucas has said, in a few, and I think it is probably the majority, of other state jurisdictions the definition is substantially similar to what appears in the bill.

The Hon. J.A. DARLEY: For the record, I will be supporting the Hon. Mark Parnell's amendment.

Amendment negatived.

The CHAIR: Hon. Mr Pangallo, just to confirm, you are not going to proceed with amendments Nos 2 and 3 standing in your name?

The Hon. F. PANGALLO: That is correct, Chair.

The Hon. M.C. PARNELL: I move:

Amendment No 2 [Parnell–1]—

Page 3, clause 3, line 6 [clause 3, inserted section 72(2)]—Delete ', or excluded from,'

Reflecting a little on what the opposition has just said, I accept that the main amendment, the definition of 'journalist', will stay as it is. The Hon. Kyam Maher referred to the regulation-making power—it was not clear to me, from his remarks, whether he was happy for regulations to restrict the definition of 'journalist' or whether he might be minded to remove that part of it. Certainly, what was in my mind in terms of this amendment—to remove the ability of the government to narrow the definition—is that that will cause less people to be protected than the parliament has decided should be, just now.

What we know, from all manner of things happening in society, is that there are unknowns—there are things that we do not know out there. There are people who will come to be regarded as journalists who we have not quite thought of yet. Just as we have seen in development, no-one ever thought anyone would build a wind farm, so the planning laws did not cover it. We still have a situation where people never thought about a solar farm, so the planning laws never covered it. I think there should be scope for the government to step in and to expand the range of people who are protected by the bill and are included in the definition of 'journalist', but just not allow them to take it in the other direction and to disenfranchise or remove the shield from people by virtue of executive action.

The Hon. Kyam Maher referred to disallowable instruments—it is a very blunt tool that we have to disallow, and regulations can still cause great damage in individual situations in those windows of opportunity when they are live law and have not yet been disallowed. This amendment, very simply, allows the regulations to specify classes of persons who are deemed to be included in the definition of 'journalist', but it does not allow them to exclude people from that definition.

The Hon. R.I. LUCAS: I am advised the government opposes this amendment. The effect of this amendment would be to preclude the making of regulations to exclude classes of persons from the definition of 'journalist' in the bill. The reason for including the ability in subsection (2) to prescribe classes of persons in or out of the definition of 'journalist' was to allow sufficient flexibility to respond to rapid evolution in modes of public communication. That is, to limit the definition to persons who are journalists by profession or occupation, whilst at the same time ensuring that the definition allows for rapidly evolving online platforms for journalism and the shift away from traditional forms of news towards new modes of public communication such as blogs and tweets. In the wake of those developments, it may be necessary to exclude people engaging in certain types of activities that we cannot now foresee, from being otherwise within the scope of the definition.

The Hon. K.J. MAHER: I have a question for either the mover or maybe the government, whoever can answer or gets up first. Does the commonwealth definition of 'journalist' include any regulation-making power?

The Hon. R.I. LUCAS: In the absence of the Hon. Mr Parnell jumping up, I am advised that the answer is no.

The Hon. M.C. PARNELL: I thank the minister for the answer. I did not have the commonwealth regulations in front of me. I will respond very quickly to what the minister said. If his intention was purely that the outcomes he described would come about, that might be fair enough, but that is not what this says. Basically, if the government decided, through regulation, for example, that Today Tonight reporters were to be excluded from the definition of 'journalist', I cannot see why they would be precluded from doing that.

The question we have to ask ourselves is: having passed the definition of 'journalist' just now, which bit of that definition did we just get wrong? If we have got it wrong or if it could have been better, we are allowing the executive to completely undermine it. If they want to pass a regulation saying that print journalists who work for News Corporation are no longer to be regarded as journalists, they could get away with that in regs. We would disallow it sometime into the future, but before that time damage could have been done. The shield could have been lifted and the journalist could be in gaol.

The Hon. K.J. MAHER: I thank the Hon. Mark Parnell particularly for his contribution. Having heard the debate and because of the way the amendment is drafted, the opposition will not be supporting the Hon. Mark Parnell. If he was minded, though, to perhaps move it in an amended form that would not allow any regulation-making power at all, for inclusion or exclusion, that would be something the opposition would support.

The Hon. M.C. PARNELL: I am not sure I need to do that because I think the Hon. Frank Pangallo's amendment No. 3 does that. If that is the situation, I accept that I do not have the numbers for my amendment. I will get behind the Hon. Frank Pangallo's amendment No. 3, which removes the regulation-making power altogether.

An honourable member: I think he has withdrawn it.

The CHAIR: Honourable members, he has not withdrawn it.

The Hon. M.C. Parnell: No, he has not withdrawn it.

The CHAIR: He decided, at that moment in time, not to move it. The Hon. Mr Pangallo has not withdrawn his amendment.

The Hon. K.J. MAHER: I indicate that the opposition will not be supporting the Hon. Mark Parnell's amendment, but does see merit in the point that, however unlikely the hypotheticals given by the Hon. Mark Parnell, they are within the realms of possibility. We do not legislate for the best possible case scenario; we legislate to keep power in check, where necessary. On that basis, we will not be supporting the Hon. Mark Parnell's amendment. However, with regard to the Hon. Frank Pangallo's third amendment, we indicate that we will be supporting SA-Best. We think it is a good idea to remove the regulation-making power so that it is what it says it is, no more and no less.

If there is a problem and if there are new technologies that emerge, as the government has said, we are happy to pass the definition as it stands. However, we do not rule out the possibility, and it might even be quite soon if it is found that there are deficiencies in it, to come back and look at it again. On that basis, we support the Hon. Frank Pangallo. We are happy to support SA-Best and their third amendment, but not the Hon. Mark Parnell's.

The CHAIR: The Hon. Mr Pangallo, have you had a change of heart?

The Hon. F. PANGALLO: Yes. I move:

Amendment No 3 [Pangallo–1]—

Page 3, lines 5 to 7 [clause 3, inserted section 72(2)]—Delete subsection (2)

The CHAIR: Honourable members, there are two ways I can do this. Mr Parnell, you can indicate that you are going to withdraw your amendment or you can continue to pursue it, and then I have a more complicated series of questions to put to the committee. I am not trying to sway you either way.

The Hon. M.C. PARNELL: Thank you. I understand where the numbers lie, so I just want to put on the record that I think my approach was still the best approach, but in the interests of proceeding with this debate, I am happy to withdraw it now.

The Hon. R.I. LUCAS: As we move on through the committee, I just want to address the Hon. Mr Pangallo's amendment. The government's position is to oppose the amendment, but, on behalf of the government, we are not going to die in a ditch on this particular issue. We recognise the numbers in the chamber and therefore will not be dividing. The reality is that if the circumstances arise—and I outlined earlier the reasons to oppose the Hon. Mr Parnell's amendment—the removal of this regulation-making power will just mean the government of the day, in those circumstances, would have to come back and introduce amendments to the legislation and have the debate at that particular time.

It is always more convenient for governments to do things by way of regulation, but the reality is there is an alternative mechanism that is slightly cumbersome. If it is important, the government of the day could come back argue the case that this definition did need to be changed, and it would require legislative change. Whilst the government's formal position is to oppose the amendment, as I said, we will not die in a ditch over it and we will not be seeking to divide.

The Hon. C. BONAROS: If I can just seek some clarification, I understand that amendment No. 2 [Pangallo-1] and amendment No. 3 [Pangallo-1] ought to be moved together; is that correct?

The CHAIR: I am just seeking clarity. You read the chair's mind. Honourable members, just to recap where we are in the committee, the Hon. Mr Pangallo has moved Amendment No. 3 [Pangallo–1], which, if it finds favour with the majority of the council, will remove subsection (2) in the interpretation provisions, which will become section 72. My advice is that we do not need to then go back to the definition of 'journalist', because it will be picked up as a clerical issue and automatically be changed, so we do not need to recommit the bill. There is no need for the Hon. Mr Pangallo to move in a technical sense amendment No. 2.

Are honourable members happy where we are at this point in time? I just want to make sure that every member of the committee of the whole is on the same page. Does anybody wish to make any further contributions after the Treasurer's contribution or response to the Treasurer's contribution in relation to the Hon. Mr Pangallo's amendment No. 3? If not, I will put the question.

Amendment carried.

The Hon. M.C. PARNELL: I move:

Amendment No 3 [Parnell–1]—

Page 3, clause 3, line 27 [clause 3, inserted section 72B(1)(d)]—Delete 'reasonably'

The thinking behind this amendment, which deletes the word 'reasonably', is to try to avoid a situation where an informant expected that their identity would be kept secret but for some reason is not able to prove that they were given any such assurance. Just to explore it, the words are:

the informant reasonably expected that the informant's identity would be kept confidential (whether because of an express undertaking given by the journalist or otherwise),

The thinking behind this amendment is that, if we remove the word 'reasonably', then it effectively implies, if it is a journalist you are talking to and there is a shield law in place, you are protected without the journalist having to expressly say, 'And by the way, I won't disclose your identity.' That was the thinking behind it. I thought it clarified the provision, but I would be interested in hearing what other members think.

The Hon. R.I. LUCAS: I am advised that the government opposes this particular amendment. This amendment would remove the requirement that for the journalist shield law to apply an informant must have reasonably expected that the informant's identity would be kept confidential. This provision of the bill needs to be considered in the context of the wider approach taken in the government's bill as to the circumstances where the shield law should apply, as opposed to the approach in other jurisdictions.

Proposed section 72B(2)(b) in the bill goes further than the journalist shield laws and the uniform evidence acts, which require that a journalist has promised an informant not to disclose the informant's identity. Proposed section 72B extends beyond a promise of confidentiality by the journalist to apply to where the circumstances give rise to an expectation of confidentiality, even where undertakings have not been given.

For example, this expectation may arise due to the clandestine nature of the dealings between the journalist and informant or use of encrypted messaging platforms to communicate. It is because of this expanded application that the bill includes the requirement for this to be a reasonable expectation. The shield law should not apply where it was not reasonable in the circumstances to expect confidentiality; for example, where the informant circulated the information widely or in public.

The Hon. F. PANGALLO: The bill includes the subjective test regarding the expectation of the informant regarding the confidentiality of their identity. It states the informant 'reasonably' expected, regarding confidentiality, which seems to be inconsistent with the purpose of the shield law. When an informant comes to a journalist expecting that their identity will be protected it should not be reasonably assumed that it will be; I think it needs to be quite clear that it would be. By removing the word 'reasonably' it would give more cover to any potential informant. It just does not rely on the journalist as well. I will be supporting Mr Parnell's amendment.

The Hon. K.J. MAHER: Did I understand correctly from the government that the commonwealth legislation has the word 'reasonably' in there?

The Hon. R.I. LUCAS: No, I am advised that the commonwealth requires that there has to be a promise of confidentiality by the journalist. There has to be an explicit commitment; that is, an explicit commitment by the journalist to say, 'I will keep your identity confidential.' There is an explicit commitment. This government's bill is broader than that in that what it is saying is that you had a reasonable expectation that your identity would be kept confidential even though you were not given, by the journalist, a commitment or a promise, 'Hey, I will keep your identity confidential.' So from that viewpoint it is actually broader.

I am not sure what the concern is. That is the government's advice as to how this works. It is saying that even in the circumstances where a journalist has not explicitly given a commitment—and you may well have somebody where you did not actually explicitly give a commitment to keep the source identity confidential but your informant, on the basis of years of knowledge or whatever it might happen to be, had a reasonable expectation that you would. That is the difference between what is proposed here and what is in the commonwealth legislation.

The Hon. J.A. DARLEY: I indicate that I will not be supporting the Greens' amendment.

The Hon. K.J. MAHER: I thank members for their contribution, particularly the Hon. Mark Parnell for outlining the reasons for this amendment, and also the government for outlining how the commonwealth scheme works. On the basis of what has been described we will be supporting the bill in its original form and not the amendment.

Amendment negatived.

The Hon. F. PANGALLO: I move:

Amendment No 4 [Pangallo–1]—

Page 3, line 35 [clause 3, inserted section 72B(2)]—Delete 'or on its own motion'

I think this is probably the one I am more concerned about, not only me but I can tell you that every media organisation I have had contact with has also expressed concern about the words 'on its own motion'. This is simply because it means the shield laws in South Australia would be totally out of step with those of the commonwealth, Victoria, New South Wales and the ACT. I believe, and also the media outlets believe, it would be an overreach in providing a shield in the first place. We are here to discuss giving shields to journalists, yet this section particularly seems to make the shield almost inoperable; it does not seem to be a shield.

When I discussed the amendments with the ICAC Commissioner, Judge Lander, he felt that my amendment dealing with the issue was a bit too narrow, and he thought the Hon. Mark Parnell's was a little bit broad. He actually wanted to see an amendment that fell somewhere in the middle. The commissioner reasoned that the ability to dispense with the shield on its own motion should not be extended to every agency tribunal that takes evidence but should be limited to the ICAC, and only in circumstances dealing with corruption and not maladministration or misconduct.

Free TV is also of the view that the ability of ICAC to overturn the shield on its own motion is something they do not support, even if it is limited. Political corruption cases can be highly sensitive and often the result of information from confidential sources. It is just as important, in our view, that journalists are able to maintain the confidentiality of the source in an ICAC process as in any other.

The Attorney-General raises the point that journalists should not be granted absolute privilege, and it has to be stressed that there is a provision in this next section of the bill for the matter to be referred or heard by the government where parties are able to argue the point. Removing the fact that you do not have an agency like ICAC, or perhaps an ombudsman, able to effectively act as judge, jury and executioner as to whether a person should not be protected by the shield, and that public interest is going to be outweighed, I think defeats the purpose of having a shield.

What it will mean is that, in serious stories of corruption, it will deter people from coming forward to reveal information if they feel they will not be adequately protected once that information comes out, because it could end up that an ICAC or another court, or the Ombudsman, could decide that, 'No, we need to know where that information has come from and who gave you that information.' That would deter people from coming forward to give information.

Our position is that simply removing those words leaves at least the objectivity of it, and also that natural justice will not prevail if you leave those words in there. You can still go to the court and you will have a situation where journalists and their informants can argue before a court, but where you give the overreach, I think it works against the shield. I think we saw that in The Advertiser's editorial last week. They made it quite clear that they believe it was inappropriate to have these words. To quote from that editorial:

The proposed shield laws now before the Parliament's upper house contain a serious flaw. If passed in their present form, a judge or Independent Commissioner Against Corruption can effectively overrule them, using a provision that does not exist in other states.

Put simply, the legislation allows for a court to make an order, 'on its own motion', that a source's identity be publicly revealed—effectively removing the confidentiality on his or her identity.

They go on to say:

This is no trifling technicality. It turns the court, or the ICAC, into the judge, jury and executioner—

which are the words I used in my previous address on this—

by removing essential checks and balances that are integral parts of our judicial system.

So I firmly believe that, by removing just those words, it will in fact be something that will still enable the protection to be there—you can still argue it in court under the rules of law, but if it is there a higher authority can certainly overrule that and it will be a deterrent for people to come forward.

I think I have already raised some issues or previous stories where it would be almost impossible to tell that story here, like Watergate. If it all happened in South Australia and Deep Throat had the story about corruption within government to the highest level, and the journalists or newspapers concerned, in this case The Washington Post, went ahead and published the story, it would then have fallen on the government of the day, which would have been able, if these laws had been in place, to force the journalist to reveal the name of that source. Once that source was discovered, there would have been a witch-hunt.

As it turned out in Watergate, it ended up being the deputy director of the FBI, and he would have suffered certainly some serious sanctions. He would have been the victim of a witch-hunt, and no doubt the American government would have gone after him. It was only many years later that we learnt the true identity of that informant.

I think also The Advertiser points out the case of the disgraced former state Labor minister, Eddie Obeid, and that we might have been able to force the identification of sources of stories revealing the extent of misconduct in public office, and that would have thwarted his eventual conviction and sentencing to five years' imprisonment. As The Advertiser points out, there remains a process to seek that information, but at least it can be argued in court under the rules of law in an adversarial sort of way rather than a blunt order, which applies if this part of the legislation proceeds.

The Hon. M.C. PARNELL: To assist the committee, given that my amendments relate to the same issue and the same clause, I will address the matter now as well. I had thought that mine might be dealt with first, but I notice that my amendment is after the word 'or' and the Hon. Frank Pangallo deletes the word 'or', so he snuck in by two letters. We were very sympathetic to the position the Hon. Frank Pangallo put. It was certainly the position put to us by the joint media organisations.

However, we have decided not to support that amendment and proceed in a slightly different way because, as the honourable member alluded to, the definition of 'court' does not include regular courts that have regular parties putting arguments for and against. It includes other investigatorial bodies that do not have parties before them. So the question then is: is there any conceivable circumstance where, for example, ICAC, Ombudsman, Coroner's or some other 'court' should be able to lift the shield, and I think the answer is, yes, there may be some circumstances. The sort of cases people tend to think of are information that directly goes to a terrorism threat or something very serious, where the public interest clearly outweighs the interest of the journalist and the informant. They might be rare but they are real, they are real circumstances.

So the amendment that the Greens is putting forward is basically, if I can paraphrase it like this: if it is a regular court with parties, an applicant, a respondent, a prosecution, a defence—a regular court with parties that can put the position—then the court cannot on its own motion or of its own volition lift the shield. It is up to the parties to put the case and defend the case, and then, having heard all the evidence and having taken into account all the circumstances set out in subclause (3), which talks about the public interest and adverse effects and things like that—the criteria—if a court heard the arguments for and against, taken the circumstances into account and makes a decision, that's fine.

However, where you do not have parties and you have one of these other courts, should they still be able to lift the shield? I think the answer is: yes, in some circumstances they should be able to. The question then arises: is that position ever able to be challenged? I would suggest that it can be challenged. If the Ombudsman, for example, without having heard from any parties, orders a journalist to disclose a source and the journalist thinks that the court has erred and has not adequately taken into account the circumstances in paragraph 3 then I would have thought that there is a judicial review that you could actually challenge that order. You could go to a higher authority and say, 'Sorry, the Ombudsman got that terribly wrong. I shouldn't have to hand over my source.'

I do not think I am skating on thin ice here. I cannot imagine a circumstance where a decision of a body like an ombudsman or a coroner or whoever is completely unassailable; I do not think that is how our legal system works. The minister might have access to better legal advice, but I think you could be able to go and challenge that decision. At the end of the day, the shield is about protecting the journalist from civil and criminal liability, and I cannot envisage a circumstance where a court unilaterally could order a person to produce their source or to name their informant and there be no ability at all in any other higher court in the land for that journalist to be able to respond. I think they can. I cannot think exactly what the administrative law motion, appeal or whatever would be, but I am sure it would be challengeable.

The model that the Greens have put forward is to say, in regular courts, leave it up to the parties to put the case for and against and the court can make a decision but, if it is not a court that has parties represented or if it is not a court that makes orders on the application of parties, then yes they can on their own motion lift the shield, but it would then become an argument for a higher court, presumably on the application of the journalist, to say, 'No, they got that wrong. I shouldn't have to disclose my source.' So I think the journalists are still protected.

I am always nervous because the government says they are already supporting my amendment. As a Supreme Court judge once said to me when I said I wanted to add a few more points, 'Don't, Mr Parnell, you might mess it up; sit down now,' so I will.

The Hon. F. PANGALLO: If I do not have the numbers for my amendment, I certainly would support the Hon. Mark Parnell. Briefly, I think that 'on its own motion' would be a denial of natural justice and I think it is overreach. I think it goes beyond the pale that somebody could totally be able to override it and you would not have an opportunity to fight that or argue that in a court of law.

The Hon. R.I. LUCAS: Can I, on behalf of the government, put on the public record the government's position in relation to both amendments. Firstly, in relation to the amendment moved by the Hon. Mr Pangallo, the government's position is that the government opposes this particular amendment. This amendment would remove the ability of a court, as defined in the Evidence Act, to override the journalist privilege in the public interest on its own initiative, without a party to the proceedings first having to apply for the disclosure order.

The reason for including the 'on its own motion' power in the bill is to reflect the fact that this bill applies broadly, beyond traditional court proceedings to courts and proceedings as defined in the South Australian Evidence Act, which will include a tribunal, authority or person vested by law with judicial or quasi-judicial powers and proceedings where evidence is taken. As previously stated, this includes ICAC hearings but also royal commissions and Australian Crime Intelligence Commission (ACIC) examinations.

In those types of hearings, there will generally be no opposing party who would be seeking to obtain disclosure of the identity of the source. Rather, it would be the investigating body (e.g. ICAC or the ACIC) applying the public interest test and needing to be satisfied that that body's need to know and the public interest in knowing the identity of the source—for example, to properly investigate a serious allegation of corruption or serious and organised crime—outweighs, in the particular circumstance, the public interest in protecting sources.

Even acting on its own motion, the court may only order disclosure if satisfied that the public interest in disclosure outweighs the interests in favour of confidentiality, as listed in proposed section 72B(3). That public interest in disclosure may involve a wide variety of factors, including the proper administration of justice, for example, to ensure a fair trial, or the interests of national or state security.

This amendment would effectively remove the ability to override the shield in these types of non-traditional court proceedings, even where the public interest in disclosure outweighs the public interest in confidentiality. This is inconsistent with the scheme of the bill and the approach in other jurisdictions where it is clear that the journalist shield is not an absolute privilege or protection: it is always a qualified privilege or rebuttable presumption able to be displaced where the public interest in disclosure is greater.

The Western Australia journalist shield law provisions, which are similarly broader in their application beyond traditional court proceedings, also necessarily contains this ability for the court—or person acting judicially, in the case of the Western Australian provisions—to order disclosure on its own motion after applying a similar public interest test. The government is not aware of any problems with the operation of those provisions in force in Western Australia since 2012.

Further, the Western Australian provisions have been successfully tested with the Western Australian Supreme Court applying the public interest test but nevertheless ordering that journalist privilege should stand in the case of Hancock Prospecting Proprietary Limited v Hancock 2013, WASC 290. In that case, a subpoena by Gina Hancock's company seeking production of documents provided to a Western Australian journalist was set aside after the court applied the public interest test and determined that the public interest in disclosure of the informant's identity did not, in that case, outweigh the public interest in facilitating the free flow of information by protecting journalist sources.

I will now address, on behalf of the government, the amendment moved by the Hon. Mr Parnell. The government will support the alternative amendment to be moved by the Hon. Mr Parnell. This amendment, together with amendment No. 5 [Parnell-1] would restrict the ability for a court to order disclosure of the informant's identity on its own motion to where (a) no party is legally represented, or (b) the court is not of a kind that makes orders on application by a party. As currently drafted, the bill would allow a court to order disclosure of an informant's identity if it found there to be overriding public interest in disclosure, either on the application of a party or on its own motion, even where a party has not sought the order for disclosure.

Mr Parnell's amendment seeks to restrict the circumstances in which the court could order this disclosure on the basis of overriding public interest. It should be emphasised that a court is limited by the existing bill provisions as to when it may override the journalist privilege and order disclosure. The court must first apply the public interest test as set out in proposed section 72B(3) and may only order disclosure if satisfied that the public interest in disclosure outweighs the interest in maintaining confidentiality, with the nature of those interests in maintaining confidentiality specifically set out in the provision.

The public interest test provisions in the bill are drafted to reflect that the journalist shield provisions apply in a broader range of proceedings in the bill. Beyond traditional court proceedings, the course of proceedings is evident as defined in the South Australian Evidence Act. There is a further explanation there, which I have included from earlier. In the commonwealth, Victoria and New South Wales, the shield laws have more limited application, generally, to traditional court proceedings and hence there is no need to include the own motion power in their legislation, as there will generally be a party to those proceedings seeking the disclosure who can make the application.

Notwithstanding the preceding arguments, the government accepts that journalists remain concerned about the ability in the bill for the shield to be displaced on the court's own motion. Mr Parnell's amendments Nos 4 and 5 address those concerns by limiting the circumstances where the shield can be displaced by a body on its own motion to the types of proceedings where there will not be a party in a position to make the application for disclosure.

The government is not aware of any problems with the operation of the broad own motion power to displace the journalist shield in operation in Western Australian legislation since 2012. However, in the interest of promoting a broadly applicable, but also robust, journalist shield law, the government will support the amendments Nos 4 and 5 to be moved by the Hon. Mr Parnell.

The Hon. J.A. DARLEY: I indicate that I will be supporting the Hon. Mark Parnell's amendment in preference over the Hon. Frank Pangallo's.

The Hon. K.J. MAHER: I indicate that this was probably the amendment on which the opposition had the most open mind. The amendments of the Hon. Mark Parnell and the Hon. Frank Pangallo both had merit. I agree with the Hon. Mark Parnell in that it is a long time since I have studied administrative law.

The Hon. M.C. Parnell: 1979.

The Hon. K.J. MAHER: I am not as far away from having studied as the Hon. Mark Parnell. Might the government be able to advise what, in their view, the cause of a review of a decision might be? I am pretty sure that, in terms of a hearing by the ICAC Commissioner, there would be a cause of action to the Supreme Court. I assume one might be able to advise what the mechanism for that administrative review of a decision of a court might be, when it was a type of court that did not have parties to it.

The Hon. M.C. PARNELL: I know some people in society are critical when too many lawyers end up in a house of parliament, but I have consulted with unnamed colleagues and I am told that what I learnt in law school in 1979, in administrative law, about what we called 'natural justice' is now called 'denial of procedural fairness'. If the journalists found themselves the subject of what they thought was an arbitrary and improper lifting of the shield, they would have a cause of action. The review body, as the minister has just said, would go to the criteria set out in the legislation, including the public interest test, and the argument would be had as to whether the shield should have been lifted or not. So that is the protection, as I see it, that the journalist has.

The Hon. K.J. MAHER: I thank the honourable members for their contribution. The numbers are clearly with the Hon. Mark Parnell's amendment, regardless of what the opposition does. On that basis, because we want to see something happen, we will also support the amendment.

The CHAIR: The Hon. Mr Parnell, could you move your amendment?

The Hon. M.C. PARNELL: I move:

Amendment No 4 [Parnell–1]—

Page 3, clause 3, line 35 [clause 3, inserted section 72B(2)]—After 'or' insert '(subject to subsection (2a))'

Amendment No 5 [Parnell–1]—

Page 3, clause 3, after line 38 [clause 3, inserted section 72B]—After subsection (2) insert:

(2a) The court may only make orders on its own motion if—

(a) all parties to the proceedings before the court are not legally represented; or

(b) the court is of a kind that does not make orders on application by parties.

The Hon. F. Pangallo's amendment carried; the Hon. M.C. Parnell's amendments carried.

The Hon. F. PANGALLO: I move:

Amendment No 1 [Pangallo–2]—

Page 4, after line 9—Insert:

72C—Review of Part

(1) The Minister must cause a review of the operation of this Part to be conducted and a report on the review to be prepared and submitted to the Minister.

(2) The review and the report must be completed after the third but before the fourth anniversary of the commencement of this Part.

(3) The Minister must cause a copy of the report submitted under subsection (1) to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

This amendment provides for a review of the legislation after three years. The amendment provides that the review must be completed and tabled within one year. This is to provide a reasonable amount of time for the review to be completed and to allow the government to properly consult with relevant and numerous stakeholders who may be affected by the legislation.

SA-Best is concerned about the practical application of the legislation and therefore seeks a review to examine any unintended consequences of the legislation. We are particularly concerned with the ability of agencies that take evidence, aside from the ICAC, given the ability to dispense with the shield. For these reasons, we sought a review. We thank the government for their support, if it comes, for the proposed review.

The Hon. R.I. LUCAS: I think the Hon. Mr Darley might be mightily offended that the Darley amendment has been moved by the Hon. Mr Pangallo, but there is no proprietorial right for these review amendments. On behalf of the government, we will indicate our support. We think reviews can be useful in relation to some pieces of legislation.

The only caution we note we are going to give in relation to this, we hasten to say, is that we do not really think that every time we pass something we ought to be having a requirement for a review, or every three or four years. Certainly, if they can be limited, ultimately, to the more substantive or controversial issues, then there can be some justification. Given the sensitivity of this particular issue, the government is prepared to provide support for this amendment.

The Hon. K.J. MAHER: I indicate the opposition will also be supporting this amendment. Having said that, though, if there are elements of this act that are not working properly, as I said earlier, I do not think we should wait for a review to occur, particularly, as has previously been discussed, the 'on its own motion', if there are instances where it is not working as it should. It would be good if something was brought back before the review was instituted to fix any problems, if they do arise.

The Hon. M.C. PARNELL: The Greens will also support this amendment. However, I am going to make a bold prediction that it will deliver a null return. The reason I say that is because—just think about this—the purpose of a shield law is that journalists do not incur criminal or civil liability. I know this is not the whole of the review, because we need to look at the whole operation of the act, but in terms of what work this did, trying to work out how many people did not get prosecuted or did not get sued because of the shield is going to be impossible.

I am not pooh-poohing the amendment. I am going to support the amendment because I think what would be interesting—whether the government has the ability to obtain the stats—is how many cases there were, how many attempts were made to lift the shields that were successful or unsuccessful. There will still be work for this review to do, but I am just making the obvious point that it will operate silently in the background to protect journalists and most of us will never know whether, absent this law, there would have been prosecutions and people being civilly sued. We will never know the answer to that. I do not think it will be an expensive or a detailed exercise, but my prediction is it will be a null return when it comes to actual cases.

The Hon. J.A. DARLEY: I will be supporting the Hon. Frank Pangallo's amendment.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (12:33): I move:

That this bill be now read a third time.

Bill read a third time and passed.