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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-11-19 Daily Xml
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Evidence (Journalists) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 July 2014.)

The Hon. J.A. DARLEY (20:33): I rise very briefly to speak on the Evidence (Journalists) Amendment Bill. It goes without saying that I support this bill which is, in essence, the same as that which I introduced earlier this year and which passed this house with overwhelming support just recently. I am extremely disappointed that the government and the two so-called Independent members in the other place chose to defeat the second reading of that bill. That seems to be a common theme at the moment.

The Attorney has dismissed the need for this legislation on the basis that no journalist has ever been prosecuted for refusing to reveal their source in this jurisdiction and that, as such, it is unnecessary. Not only is this a superficial response, it is based on a flawed argument. We all know that the threat of prosecution in and of itself can be enough to cause sources and journalists alike to be reluctant about disclosing information that is in the public interest.

In a recent opinion piece, Senator Nick Xenophon made the point that if new federal laws on data retention are passed, the impact of the state government's decision on free speech will be magnified for the worse. If passed, it will mean that every call you take, every internet move you make, the government will be watching you and by doing so it will make it almost impossible for investigative journalists to do their job.

The government needs to consider the bill in a broader context. This bill is about transparency and accountability. It is about striking 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 on the other. There is an opportunity now for the government to reconsider its position and follow the example of other jurisdictions, including the commonwealth, and pass the bill. I urge the government to do so and I urge the Independent members in the other place to reflect on the broader context and the ramifications that we face if the bill is not passed and to reconsider their position on this very important issue. With that, I support the second reading of the bill.

The Hon. K.L. VINCENT (20:35): As the Hon. Mr Darley has pointed out, this bill is basically a reincarnation (if I may call it that) of his bill. We supported the Hon. Mr Darley's bill and we will support this bill for the same reasons. We, like the Hon. Mr Darley, were extremely disappointed to see a minority in the lower house collude to block this very important piece of legislation. We also believe it is important, particularly in this day and age where the definition of what arguably constitutes a journalist is ever expanding, with increasing access to technology. Therefore, people are increasingly taking up their responsibility and their opportunity to have a voice in the media and it is increasingly important that we protect those people in order to have balanced and truthful journalism.

So, we strongly support the bill, no matter which member is putting it forward, and we will continue to do so until we see it pass. Finally, I again reiterate that we are bitterly disappointed the government does not support the bill. We have to ask ourselves, and I think the government sincerely needs to ask itself, why it will not and what it has to hide.

The Hon. T.A. FRANKS (20:37): I rise on behalf of the Greens to support the bill, as we did with the Hon. John Darley's bill. It is well known that the Greens support journalist shield laws. We commend the Liberal opposition and previously the Hon. John Darley for their work on this issue. I particularly note the work of Senator Scott Ludlam and the member for Denison, Andrew Wilkie, at a federal level on these issues and, as the Hon. John Darley mentioned, Senator Nick Xenophon.

These journalist shield laws are important, not simply because we enjoy a healthy democracy, but because they are integral to a healthy democracy. The fourth estate is a vital part of our democracy. We heard lots of lectures earlier this evening about how we must defend the Westminster system and how we need and must cherish and nurture our democracy. Well, without the ability for journalists not to disclose their sources, if forced to by a court, we will not see people feel that they are, in the public interest, able to go and reveal corruption to journalists.

We will be in a position where what is often seen as a secret state (the secret state of South Australia) will become even more secretive and it will become the scared state. Many people are already fearful of coming forward for fear of retribution. If a journalist knows that they will have no defence they too will feel fearful. They already have to run everything by the lawyers and should they not do things in the public interest there are penalties that apply there.

I think the Weatherill Labor government should be leading the way, but yet again we are lagging behind and it is up to the Legislative Council to show true leadership. With those few words, I point out to members of the government benches that this is a strong held campaign of the Media, Entertainment and Arts Alliance and that they are very much out of step with the journalists' union on this, but it is not the first time in this place that the long and hard fought campaigns of the unions have been ignored and I suspect it will not be the last. With those words, the Greens look forward to the second reading and committee stage of the bill and we hope that it will get a fair hearing in the lower house the next time it is debated there. Certainly, I think we should be looking towards strengthening our democracy, not weakening it.

The Hon. S.G. WADE (20:40): I would like to thank the honourable members who contributed to this debate: the Hon. John Darley, the Hon. Kelly Vincent and the Hon. Tammy Franks. I must say that I find it almost quaint that the Hon. Tammy Franks thinks the Labor Party might actually stand up for workers and unions. It has just become a self-perpetuating political elite; no longer is it anything resembling the Labor Party that was established in the late 1890s.

In bringing this second reading debate to a close, I want to stress that this bill is substantially the same as the Darley shield law bill that was passed by the Legislative Council earlier this year. The Hon. Mr Darley and this council supported Liberal amendments as we forged a consensus such that the two bills became very similar.

Unfortunately, on 30 October that bill was defeated by the Weatherill Labor government in the House of Assembly. For the benefit of honourable members in this place in considering this bill tonight and in anticipation of the house's consideration in due course, I want to address some of the issues raised by the government. First, the Attorney says there is no evidence that there has been any mischief that necessitates the law. He says shield laws are unnecessary because no journalist has been jailed in South Australia. However, I am advised that in fact a South Australian ABC journalist spent 11 weeks in prison in 1993 after being found guilty of contempt of court for failing to reveal a source.

In a letter addressed to the Attorney-General and sent to all South Australian ministers, an alliance of media organisations linked to the Australia's Right to Know coalition argued that the legislation is necessary and important. The letter reads:

The local and international jurisdictions that have implemented journalists’ shield laws have done so not because there has been a raft of ‘evidence’ or ‘court actions’ or journalists paying fines and/or doing time in jail, rather, and importantly, those jurisdictions have acknowledged the importance of strengthening the protections provided to journalists and their sources in fostering freedom of the media and the public’s right—and need—to know.

The letter was co-signed by The Newspaper Works and its founding members: APN, Fairfax Media, News Corp and West Australian Newspapers, as well as by APP, ABC, ASTRA, Bauer Media, Commercial Radio Australia, FreeTV, the MEAA (which I think is the union that the Hon. Tammy Franks referred to) and SBS.

The media organisations noted in the letter that concerns around the protection of journalists’ confidential sources have been highlighted in recent court cases involving journalists such as Steve Pennells, Adele Ferguson, Nick McKenzie, Richard Baker and Paddy Manning. But even if there were no examples of retribution being carried out against a journalists' source, the Liberal team would argue that the risk of retribution is reason enough for these laws. In this context, I want to quote a column in The Advertiser by Senator Xenophon, a former member of this place. In the column on 4 November 2014, the senator states:

Protecting journalists’ sources is critical to safeguarding our right to know, especially when a government stuffs up with our money or with decisions that affect us all. Rau saying the Bill (introduced by my colleague John Darley and passed by the Upper House) was somehow 'flawed' because no journalist has been prosecuted for refusing to reveal a source is itself flawed. The mere threat of prosecution can itself have a chilling effect on free speech and reporting.

Journalists and editors will be wary of running a story, no matter how strongly it’s in the public interest, if they could face an indefinite jail term. But more importantly it will mean that sources, usually public servants risking their careers and jail time, just won’t come forward with vital information….As China scholar Perry Link has observed, such laws are like having 'a giant anaconda coiled in an overhead chandelier. Normally the great snake doesn’t move. It doesn’t have to.' What adds insult to injury is that around the country laws to protect journalists’ sources are already in place.

I join the other honourable members, the Hon. Mr Darley and the Hon. Tammy Franks, in indicating our disappointment with the so-called Independent members of the House of Assembly, the Hon. Martin Hamilton-Smith and the Hon. Geoff Brock. We are very disappointed that neither of them supported the bill. Again, I believe quoting a third party makes my point better than I could make it myself. I quote from The Advertiser of 31 October and an article entitled 'Independents mere puppets on big issues'. The article reads:

When Martin Hamilton-Smith and Geoff Brock joined Labor's cabinet, both pledged to remain fiercely independent as ministers and use their new found influence to lobby for positive change within government.

Each made the leap for a different reason. Mr Brock said his hand had been forced by an election result that left only one party able to form a stable government. Mr Hamilton-Smith deserted the Liberals because he was sick of being in opposition and believed he could better serve the community in cabinet. Many scoffed at the time. Others allowed them the benefit of the doubt.

This week, we've seen this pair subordinate the independence they boasted of to the whim of Labor masters and become meek at a time when the community expects them to stand tall.

Later in the article it said:

Yesterday came more evidence that the trappings of ministerial offices appear to have made the pair mere puppets to the Labor line.

South Australia is one of the few states in the nation without laws allowing journalists to protect their sources when it is in the public interest. Publishing stories like the water rorts revelations or the leaks about the state of the budget could result in a knock on the door, a trip to court and threat of prison.

It puts a chill wind through the Public Service, and leaves voters deprived of information they need and deserve to make informed decisions. If independence means anything, this week should have been a prime time to display it.

Again, I believe that Senator Xenophon is also worth quoting on this point. In the same article I mentioned earlier he said:

I'm gobsmacked that lower house Independents Martin Hamilton-Smith and Geoff Brock bought the government's slithery excuse. Gentlemen, I reckon the Attorney-General has played you. But there's time to fix this mess. An almost identical bill to John Darley's, from the opposition, is in the upper house, where it's expected to pass. My plea to Martin and Geoff to reconsider their position when the bill gets to the lower house. Because if they don't, that anaconda will become even more menacing.

I concur with Senator Xenophon. I hope the honourable members in the other place will support this bill. I commend the bill to the council.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. S.G. WADE (20:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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