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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-02-20 Daily Xml
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EVIDENCE (PROTECTION FOR JOURNALISTS) AMENDMENT BILL

Introduction and First Reading

The Hon. J.A. DARLEY (17:03): Obtained leave and introduced a bill for an act to amend the Evidence Act 1929. Read a first time.

Second Reading

The Hon. J.A. DARLEY (17:04): I move:

That this bill be now read a second time.

The bill, as its title suggests, is intended to protect journalists against disclosing the identity of, or information pertaining to, confidential sources.

In short, it provides that where a person satisfies the court that they are a professional journalist or a prescribed person in respect of a professional journalist and they have been given information by an informant in the expectation that the information may be published in the news medium, they will not incur any criminal or civil liability for failing or refusing to provide details that may directly or indirectly disclose the identity of their informant in the course of court or royal commission proceedings.

A prescribed person is defined in the bill as a journalist, an employer of a journalist, a person who engages a journalist under a contract for services or any other person prescribed by regulation. An informant is defined as a person who gives information to a journalist in the normal course of the journalist's work in the expectation that the information may be published in the news medium.

The bill recognises that there will be circumstances where it may not be appropriate to provide protection against the disclosure of the identity of or information pertaining to a journalist's sources. As such, it provides for an exception to the general rule where a court or commission is satisfied that it is in the public interest or in the interests of justice to make an order for disclosure or if the benefit of disclosing the identity of the informant or answering questions or providing relevant information outweighs the prejudicial effect that the disclosure would have on the informant or the journalist as the case may be. The court may make such an order on the application of a party to the proceedings or on its own motion.

Where a party to the proceedings makes such an application the onus will be on that party to prove that the information in question ought to be disclosed. As already alluded to, these provisions will apply to proceedings in all of the courts—that is, the Supreme Court, the District Court, the Magistrates Court, the Youth Court, the Coroner's Court, the Environment, Resources and Development Court and the Industrial Court—as well as commissions of inquiry instigated under the Royal Commissions Act 1917.

Similar provisions also apply in relation to proceedings comprising a hearing, examination or proceeding where a person would ordinarily be compelled to answer questions or produce documents relating to the identity of an informant. Members will notice, however, that these provisions do not extend to any proceedings instigated under the Independent Commissioner Against Corruption Act 2012. Again, under proceedings other than those instigated under the ICAC Act, the onus is on the journalist to prove that he or she is a prescribed person and that the person whose identity should not be disclosed is an informant.

Where a journalist refuses to disclose information pertaining to the identity of an informant, the person or body conducting the proceedings or any party to the proceedings may apply to the Supreme Court for an order that the privilege not apply. In making a determination, the Supreme Court will consider public interest matters, whether the disclosure is necessary in the interests of justice and whether the benefit of disclosure outweighs any prejudicial effect on the journalist, the informant or any other relevant person.

As members would be aware, at common law the only professional relationship that attracts privilege is the lawyer and client relationship. Whilst other matters, including for instance incriminating questions, are protected from disclosure on the grounds of privilege, they are not based on a professional relationship existing between two parties. The bill is, if you like, creating a professional relationship between professional journalists and informants, subject, of course, to some very important exceptions.

Although it is not a privilege in the true sense of the word and as it relates to lawyers and their clients, the bill does afford professional journalists who receive information from informants with protection against disclosure. I do stress that it is only intended to apply to professional journalists and prescribed persons in respect of professional journalists—in other words, their employers. The question of whether a person is to be considered a professional journalist or a prescribed person is one to be determined by the courts, and I expect that a number of factors will be considered to differentiate between professional journalists on the one hand and other bloggers and commentators on the other.

The bill seeks to enshrine in legislation the fundamental principle that journalists should not be compelled to reveal their sources and, equally, if not more importantly, better promote the notion of the public's right to information. In so doing, it will bring South Australia into line with other jurisdictions that have recently implemented similar pieces of legislation.

The need for adequate shield laws in Australia has been well canvassed by Australia's Right to Know, a coalition of 12 major media companies formed in May 2007 to address concerns about free speech in Australia. Since its inception, the coalition has worked with commonwealth and state governments to establish new policy and best practice aimed at improving what they consider Australia's relatively poor world ranking in terms of freedom of speech.

According to a submission prepared by Australia's Right to Know to the National Inquiry into the Evidence Amendment (Journalists' Privilege) Bill 2009, there is an expectation that journalists will disclose the source of their information. This expectation is in keeping with Australia's code of ethics for journalists which, although not legally binding, provides that journalists should 'aim to attribute information to its source'. This is important because it ensures that journalists and the media are accountable for what is reported to the public and it allows us, as readers, to assess the credibility of the information received through the media.

There are instances, however, where a journalist is able to obtain information only on the basis that the identity of the source is kept confidential. It is in these instances where guarantees of anonymity arise between journalists and informants. The journalists' code of ethics provides:

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

In terms of guidance, the code goes on to provide:

...only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden.

The code of ethics is indicative of the serious nature of the considerations that are expected of journalists when grappling with the issue of identifying a source and breaching conditions of trust, on the one hand, and facing serious criminal penalties, including pecuniary penalties, criminal conviction or imprisonment for contempt of court, on the other. It is not a decision that can be made lightly; indeed, it can have a ripple effect in terms of consequences. First, it creates mistrust towards the media and raises questions about the integrity of the journalist in question and the profession as a whole more generally. This often results in informants becoming less likely to divulge information which ought to be in the public arena. The effect of this is that matters of public importance are often swept under the carpet.

The need for adequate shield laws is demonstrated well by the McManus and Harvey case in 2005. Members may recall that, in the background to that matter, a public servant was charged with breaching provisions of the Commonwealth Crimes Act, which makes it an offence for public servants to engage in unauthorised communication or information received in the course of their duties, after allegedly disclosing a draft ministerial statement to The Sydney Morning Herald journalists Gerard McManus and Michael Harvey.

The draft ministerial statement related to war veterans' entitlements. McManus and Harvey were subsequently convicted and fined for refusing to reveal the source of information over an article they co-wrote based on that draft ministerial statement. This is just one of a string of cases over the last 20-odd years where journalists have been convicted or jailed for contempt of court as a result of refusing to reveal their sources. Other well documented cases include:

Belinda Tasker, Anne Lampe and Kate Askew, journalists from Australian Associated Press and The Sydney Morning Herald, who refused to reveal their sources over a story about the NRMA board and who avoided prison after NRMA dropped the case;

Chris Nicholls, an investigative journalist from the ABC, who received a prison sentence for his story relating to a conflict of interest of a South Australian government minister;

Deborah Cornwall, a journalist from The Sydney Morning Herald, who received a two-month gaol sentence, which was subsequently reduced to 90 hours of community service, for refusing to disclose a confidential source over police corruption;

Gerard Budd, a journalist from the Brisbane Courier Mail, who was imprisoned for 14 days but released after six days for refusing to answer questions about the identity of a source of information referred to in an article written by him in a defamation action;

David Hellaby, a journalist with The Advertiser newspaper, who, during proceedings taken against him by the then State Bank of South Australia for pre-trial discovery, was ordered to hand over documents used in preparing two articles relating to the South Australian Auditor-General's inquiry into the State Bank of South Australia, as published in The Advertiser. The bank claimed access to Mr Hellaby's documents in order to decide whether it would sue him for injurious falsehood. Mr Hellaby's appeals to both the Full Court and the High Court were rejected. He was given 14 days to reveal his source or face imprisonment for contempt. Mr Hellaby subsequently filed some of the documents but none which revealed the identity of his source. He was found guilty of contempt but given the opportunity to contact his source in order to seek release from his undertaking of anonymity. The matter was ultimately settled confidentially, but Mr Hellaby was still fined $5,000 for the period he had been in contempt.

Tony Barrass, a journalist with The Sunday Times in Perth, who was, in the first instance, imprisoned for seven days, but released after five days, for refusing to reveal the source of leaked information relating to official corruption within the Australian Taxation Office in Perth. Tony Barrass was subsequently convicted of contempt and fined $10,000.

There is no telling whether the outcome of any of these cases would have been any different in terms of disclosure if shield laws had existed within the relevant jurisdictions at the time they were heard. I am sure that in at least some cases there would have been very strong arguments as to why the information ought to have been released, irrespective of whether the information was given in secret or not.

The proposed bill recognises this, inasmuch as the court has the discretion to override the general rule in appropriate circumstances. It does not impose an absolute protection for journalists; however, it will provide professional journalists with a means of claiming protection when putting their case to the courts. If that is rejected by the courts, so be it.

It is worthwhile noting the High Court's findings in the 1998 case of John Fairfax and Sons Ltd v Cojuangco in this context. Although not entirely relevant, very briefly, in that case the respondent, Eduardo Cojuangco, a prominent businessman from the Philippines who had extensive bloodstock and grazing interests in New South Wales, applied for preliminary discovery of the identity of sources of information upon which a news story and article written by Peter Hastings and published in The Sydney Morning Herald on 13 February 1985 had been based. He sought the identity so that he could bring proceedings in New South Wales for defamation against the persons who had provided the information used in the newspaper article. In its findings the High Court stated:

The role of the media in collecting and disseminating information to the public does not give rise to a public interest which can be allowed to prevail over the public interest of a litigant in securing a trial of his action on the basis of the relevant and admissible evidence. No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society.

Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information. It stands to reason that the free flow of information would be reinforced, to some extent at least, if the courts were to confer absolute protection on that confidentiality. But this would set such a high value on a free press and on freedom of information as to leave the individual without an effective remedy in respect of defamatory imputations published in the media. That is why the courts have refused to accord absolute protection on the confidentiality of the journalist's source of information, whilst at the same time imposing some restraints on the entitlement of a litigant to compel disclosure of the identity of the source.

In effect, the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice. So, generally speaking, disclosure will not be compelled at an interlocutory stage of a defamation or related action and even at the trial the court will not compel disclosure unless it is necessary to do justice between the parties.

The bill does not detract from these principles.

The proposed bill mirrors, to some extent, the Evidence Amendment Journalists Privilege Bill introduced in the federal parliament by the member for Denison, Andrew Wilkie in September of 2010 and modelled on existing UK and New Zealand legislation. A similar bill was also introduced a few weeks later by Liberal Senator George Brandis and both bills were referred to the Legal and Constitutional Affairs Legislation Committee for inquiry. The majority report recommended that the Wilkie bill be passed.

The bill, which was the subject of some further amendments by the Australian Greens, passed the Senate in March of 2011 and it was subsequently assented to on 12 April 2011. Section 126H of the commonwealth Evidence Act now provides that:

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

In terms of safeguards, the court has the discretion to order that these provisions not apply if it is satisfied that the public interest in the disclosure of evidence of the identity of the informant outweighs any likely adverse effect of the disclosure on the informant or any other person; and the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts. An order can be subject to any terms the court thinks fit.

Similar to the proposed bill, the commonwealth legislation requires the party seeking disclosure pursuant to section 126H to seek an order that the protection does not apply in relation to the information or document in question. The onus of proof therefore rests with that party.

In terms of other jurisdictions, New South Wales became the first state to implement shield laws for journalists in 2011 after amendments to that state's Evidence Act introduced a rebuttable presumption so that a journalist's source is capable of being protected from being adduced in evidence. Western Australian legislation also provides for a range of professionals, including journalists, to be able to receive information in confidence. The privilege provided by that legislation is subject to the discretion of the court having regard to whether the harm to the confider outweighs the public interest.

The Victorian government has indicated that it too is considering amendments similar to those introduced in New South Wales, subject to tighter definitions around the term 'journalist'. Lastly, the ACT has introduced shield laws that mirror commonwealth provisions, whilst Queensland has previously indicated its preference for a national approach to shield laws. Having said that, I understand Queensland has addressed the issue to some extent.

Members interjecting:

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Order! The Hon. Mr Darley is reasonably softly spoken today and I am having trouble hearing him over the other conversations.

The Hon. J.A. DARLEY: Having said that, I understand Queensland has addressed the issue to some extent through its public interest disclosure legislation which provides for the making of a public interest disclosure to journalists as a last resort after all proper channels have been exhausted.

There is no question that South Australian laws with respect to this issue are wanting. The bill provides South Australia with the opportunity to create a fairer balance between ensuring the administration of justice, on the one hand, and upholding the public's right to know without fear of incrimination for journalists, on the other.

For those members who are interested, there have been several inquiries into this issue both at the national level and within other jurisdictions. The reports of those inquiries provide very useful background information on this issue and are readily available on the internet. I am more than happy to provide any members with these reports and with additional background material, especially in relation to the cases that were outlined very briefly. With that, I look forward to hearing the views of other honourable members on this important issue.

Debate adjourned on motion of Hon. B.V. Finnigan.

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