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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-10-30 Daily Xml
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EVIDENCE (JOURNALISTS) AMENDMENT BILL

Introduction and First Reading

The Hon. S.G. WADE (15:51): Obtained leave and introduced a bill for an act to amend the Evidence Act 1929. Read a first time.

Second Reading

The Hon. S.G. WADE (15:51): I move:

That this bill be now read a second time.

The state Liberals are committed to strengthening transparency and openness in South Australia by providing legal protection to journalists' sources through shield laws. This stands in stark contrast to the Weatherill Labor government's commitment to secrecy, such as with suppression laws and the ICAC and its highly-controlling approach to the media. These laws will help to ensure that media sources receive the protection they need to support and inform public conversation. The public interest is best served by an open and transparent public conversation, rather than one where people are afraid to speak out. The Public Service and others should feel free to provide frank and fearless advice without fear of retribution from ministers or their staff.

Shield laws aim to provide protection to journalistic sources by suppressing their identity and providing journalists with confidential source-to-journalist privileged communication. While whistleblower laws provide limited protection once a source has been disclosed, shield laws act to protect sources by protecting anonymity. Australian common law does not provide any protection to journalistic sources. As the Senate Legal and Constitutional Affairs Legislation Committee said in their report on commonwealth shield laws:

Journalists' privilege operates not only to protect the privacy of the source and the relationship of trust between the journalist and the source, but also to protect public interests in the accountability of public officials, an informed public and the free flow of information, all of which are vital components of a democratic society.

Shield laws operate in most other states in the commonwealth. They ensure that journalists are not forced to reveal their sources unless there is a clear public interest in their needing to do so. Such laws encourage sources to provide information to journalists without fear of retribution. In doing so, they support a healthy democracy. Only the Northern Territory, Queensland and South Australia have not legislated to provide such protection.

During the development of the bill I have tabled today, we considered in detail the existing provisions of other states. The commonwealth, New South Wales, ACT and Victorian provisions are worded in such a way as to require the journalist to promise to the source that they will not disclose the source's identity. For example, in New South Wales, under section 126K, it states:

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 give evidence that would disclose the identity of the informant or enable that identity to be ascertained.

The Western Australian and Tasmanian provisions require it to be shown that there is a protected confidence, protected identity or a document that records a protected confidence.

The bill we are introducing today does not require an explicit promise between the journalist and their source that the information is privileged. It is the nature and circumstance of the communication that should determine whether protection applies. It may be that the nature and circumstances of the communication are implied, rather than stated to be confidential. Proposed section 72B(2)(d) of the bill states that if:

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

then the person does not incur civil or criminal liability for failing or refusing to answer any question, or produce any document or other material, that may directly or indirectly disclose the identity of the informant.

The provision of the information must only occur with the expectation that the information may be published in a news medium. The opposition also wants to warmly acknowledge the work that the Hon. John Darley has done in initiating debate on these laws within the South Australian parliament. Whilst our bill differs from that of the Hon. John Darley in a number of respects, we share both his general approach and his commitment to strengthening our democracy.

One significant difference between the Darley bill and the bill I have tabled today is that in our bill there is no criteria of 'professional' in the definition of journalists. It extends more broadly to other journalists, such as those operating as contractors and freelancers. This approach is consistent with the scope of the commonwealth provisions. This change, we hope, would futureproof the laws to some degree, in the sense that they should be able to accommodate the changing nature of news media and news organisations.

Media, journalism and news dissemination are evolving at a rapid pace and increasingly rely on contributions from the public, from ad hoc journalists and from non-professional sources. Even established professional journalists blend their media sources, such as where journalists use blogs and Twitter to comment on mainstream stories. It is not yet clear how investigative journalism will evolve over the months, years and decades ahead.

Under current New South Wales law, a professional journalist who blogs at home in a forum other than their workplace may not even be covered. The opposition believes that it would be valuable to provide clarity that circumstances like these are indeed covered by the protections proposed in the bill. Secondly, unlike the Hon. John Darley's bill, which does not provide protection to journalists when their sources are being questioned by the ICAC, the Liberal bill provides the same level of protection for journalists and their sources throughout. Of course, in consideration of proceedings in the ICAC, the public interest test in the bill would be overriding.

The Liberal bill also ensures, as the Hon. John Darley's bill does, that the protection cannot be circumvented by targeting journalists' employers. The commonwealth, New South Wales, Australian Capital Territory and Victorian provisions all explicitly grant protection not just to the news provider but also to their employer. Neither the employer nor the journalist are compelled to provide the name of the source unless ordered to do so by a court. Western Australia and Tasmania's provisions relate to the nature of the information and the means in which it was provided, so do not have a specific provision to cover certain classes of people or their employers.

The definition of journalist in our bill covers anyone who is engaged and active in the publication of news. Proposed section 72B(5) of the bill also extends the protection to journalists' employers, people who engaged the journalist under a contract for services, and other persons prescribed by regulation. This ensures that an editor, for instance, who is aware of a journalist's sources, receives the same protection as the journalist themselves.

The Liberal Party believes that the bill before us represents a robust approach to shield laws, and we believe it would be one of the best examples in the country; nonetheless, there is always room for improvement. As such, I am introducing the bill on behalf of the opposition today to provide the public, stakeholders and other members the opportunity to consider the proposed changes. We would welcome any feedback to improve the laws further. Given that there are only two scheduled sitting weeks left before the March 2014 election, individuals and organisations interested in providing feedback will have at least five months to comment before the parliament convenes after the election.

These laws represent a clear contrast in the approach of the Marshall Liberal parliamentary team and the Weatherill Labor government. Under Steven Marshall's leadership, we look forward to advancing the interests of transparency, openness and informed democratic debate through this bill and other initiatives. I commend the bill to the house.

Debate adjourned on motion of Hon. K.J. Maher.

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