Evidence (Journalists) Amendment Bill

Introduction and First Reading

The Hon. S.G. WADE (16:29): 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 (16:30): I move:

That this bill be now read a second time.

On 20 February 2013 the Hon. John Darley introduced the Evidence (Protection for Journalists) Amendment Bill 2013. On 29 October 2013 the Liberal Party released its shield laws policy and on 30 October the Evidence (Journalists) Amendment Bill 2013 was tabled in the Legislative Council.

On 15 March the Liberal Party won a majority of votes on a two-party preferred count at the general election and a share of at least 90,000 votes larger than any other party. This bill is part of the agenda that the people of South Australia voted for. This bill is the same bill that I tabled on 30 October 2013, and my comments will be a reaffirmation of the comments I made at the time.

The Weatherill Labor government's commitment to secrecy over transparency is seen in a range of areas such as suppression laws, the secrecy of the ICAC and recent Ombudsman's findings in relation to the handling of freedom of information requests by the Weatherill Labor government. Labor has a highly controlling approach to the media, so much so that the name of a former senior Labor media adviser has gone into our urban dictionary as a word for an aggressive attack on a journalist.

But Labor is also more than willing to use the law to control the media. South Australia's suppression laws are more constraining than those interstate, and even when an independent judicial review commissioned by the government recommended winding back these laws Labor rejected that recommendation. The Liberal team is committed to an open society where a transparent public conversation is supported rather than suppressed. The Liberal team supports an open society through shield laws.

To maintain a healthy, open society we need a free media. Journalists and media outlets hold interest groups, companies and the government to account by publishing important information from a range of sources. Many of those sources risk their livelihood, even their safety, by exposing information in the public interest. As the leader of the state Liberal team, Steven Marshall, put it when launching the Liberal policy on shield laws last year:

People who alert the media to important public issues embody the core values of an open society.

If journalists are not able to provide those sources with an assurance of anonymity, it is likely that critical information benefiting the public will not be passed on. This damages public debate, it hides corruption, it undermines accountability and it fundamentally undermines the capacity for society to provide a safer, nurturing environment in which citizens can participate.

As a matter of law, Australian common law does not provide any protection to journalistic sources. While whistle-blower laws provide limited protection once a source has been disclosed, shield laws act to protect sources by protecting anonymity so that the source is not disclosed. Shield laws have been used internationally and around Australia to provide protection to people who engage journalists. As a matter of law, shield laws aim to provide protection to journalistic sources by suppressing their identity and providing journalists with confidential 'source to journalist' privileged communication.

As the Senate Legal and Constitutional Affairs Legislation Committee said in its 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.

As the Hon. John Darley indicated, shield laws operate in most other states in the commonwealth. South Australia still has no protections in place. Only the Northern Territory and Queensland are other jurisdictions which have not legislated to provide such protection.

If this bill becomes law, journalists will be compelled to reveal their sources only if the case fails the public interest test, that is, where the public interest in revealing information outweighs the potential detriment to the source, for example, if a journalist has information about a threat to public safety. For the Liberal Party, shield laws are not primarily about journalists; they are primarily about the protection of the public interest in a fair, accountable and transparent government and society.

Let me briefly outline how the bill would work. If a journalist has promised not to disclose an informant's identity, or if the journalist receives information in a context where such a confidence is implied, neither the journalist nor their employer could be compelled to answer any question or produce any document which would disclose the identity of their informant or which would enable the source's identity to be determined.

The privilege against disclosure of a source includes situations where a person is compelled to answer a question or produce a document that would disclose the identity of the informant or enable that identity to be determined. The court may, on the application of a party, compel the information be released on the grounds that the public interest and the disclosure of the evidence or identity of the informant outweighs any detriment to the source.

During the development of the bill that I have tabled today, the Liberal Party considered the existing provisions in 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 the journalist then to be able to rely on the shield law.

Typical of these provisions is the provision in New South Wales that states 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 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 the Liberal Party is tabling through me today does not require an explicit promise of secrecy from a journalist to their source for that information to be privileged. It can be the nature and circumstance of the communication that can determine that protection applies. It may be that the nature and circumstances of the communication are implied to be confidential and that would be respected under this bill.

The opposition warmly acknowledges the work the Hon. John Darley has done in what I would call the 2013 bill and again with the bill he has tabled today. It is significantly through his efforts that our shield laws are on the agenda of this parliament again. Whilst our bill differs from the bill of the Hon. John Darley in some respects, we share both his general approach and his commitment to strengthening our democracy. Certainly, I reciprocate the sentiments expressed by the Hon. John Darley in his remarks, that he, like we, will be looking to engage constructively. The differences are not fundamental, and we are keen as a party to find the best possible form of South Australian legislation. Like the Hon. Mr Darley, we are very keen to hear from other members of this council and to engage constructively to make sure that South Australia has the best law possible.

One significant difference between the bill of the Hon. Mr Darley and the bill I have tabled today is that the Liberal bill does not include a criteria of 'professional' in the definition of 'journalists'. In other words, it extends more broadly to other journalists, such as those operating as contractors and freelancers. This, we believe, is particularly important in terms of the increasing casualisation of the journalistic profession, particularly in some of the larger media organisations. This approach is the approach that has been taken in the commonwealth provisions. It also provides some futureproofing to the laws in the sense that they should be able to accommodate the changing nature of both news media and news organisations.

Media journalism and news dissemination are evolving at a rapid pace and increasingly rely on contributions from the public, ad hoc journalists and non-professional sources. Even established professional journalists often will blend their media sources such as where journalists use blogs and Twitter to comment on mainstream stories. It is not unusual now to find, shall we say, flash-outs of Twitter comments in amongst a mainstream story (and, of course, we know what a compulsive tweeter is the Hon. Tammy Franks). It is not yet clear how investigative journalism will evolve over the months, years and decades ahead but our bill, we believe, is even handed to journalists and journalism across the range of platforms on which they might operate.

Under current New South Wales law, a professional journalist who blogs at home or in a forum other than their workplace may not even be covered. We believe that the nature of your contractual relationship as a journalist, the nature or your workplace and the nature of the organisation in which you work should not provide limitations to your protection under the law. In fact, let me rephrase that—not your protection under the law, but the protection of your sources.

Secondly, unlike the bill of the Hon. John Darley which does not provide protection to journalists when their sources are being questioned by the ICAC, the Liberal bill does provide that same level of protection for journalists and their sources throughout. Of course, we have the highest regard for the ICAC. My party was the first alternative government in this state to support an ICAC. I acknowledge that the crossbenchers might have been working for it about 15 years before the major parties started working for it, but could I just say to the crossbenchers that at least we were seven years in front of the Labor Party.

The third differentiating element would be the issue which the Hon. John Darley has highlighted and which I have dealt with at length earlier in my contribution, that is, the fact that the Hon. John Darley's bill requires some element of a promise to a source to provide anonymity. As I said before, the Liberal bill and the bill of the Hon. John Darley have a lot in common and both ensure that the protection cannot be circumvented by targeting journalists' employers.

The commonwealth, New South Wales, ACT and Victorian provisions all explicitly grant protection not just to the news provider but also to their employer. I appreciate how keen members of the parliament will be to ensure that, what do we call them, media moguls are provided protection under the law. Seriously, neither the employer nor the journalist, in our view, should be compelled to provide the name of the source unless ordered to do so by a court.

Often a journalist, in terms of progressing their story within their publication, will need to discuss their source with an editor or another representative of their employer and we do not believe that that sort of engagement should compromise the relationship of confidentiality with the source. Western Australian and Tasmanian provisions relate to the nature of the information and the means by which it is provided, so do not have a specific provision to cover certain classes of people or their sources.

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 engage the journalists under a contract of services, and also gives the capacity for other persons to be prescribed by regulation.

The Liberal Party believes that the bill before us represents a robust approach to shield laws and that they are an important step in supporting journalists in South Australia to meet their ethical obligations to protect their sources without fear of risking criminal sanctions to do so. These laws represent a clear contrast between the approach of the Marshall Liberal parliamentary team and the Weatherill Labor government.

Only yesterday we heard the Hon. Gerry Kandelaars put forward his view that the media should have to seek court approval to use recordings of people without their consent. Quite remarkably, the honourable member reflected on the ethics of local journalists by comparing their work to journalists who have faced trial in bugging inquiries in the UK. It is an outrageous comparison to make. If the honourable member is saying that the laws he is promoting are justified because on the other side of the world someone of the same profession committed crimes and, as a result, journalists here should be hit with some greater restrictions on free reporting—the greatest restrictions that the state has ever seen—then the Liberal Party will not be joining him in those calls.

The honourable member reflects the government of which he is a part, in failing to understand and support the ethical obligations of the journalistic profession. Further, he undervalues the moral imperative placed on journalists to expose abuse of public resources, to bring to light fraud, corruption, misappropriation and other forms of maladministration. These moral duties should not need to be given the green light from the judiciary or the government before they can be exercised. The laws being proposed by the opposition and the Hon. John Darley recognise and seek to protect these important journalistic ethics and these important duties.

When it comes to journalistic freedom, the hypocrisy of the government is astounding. The Premier has moved a motion to express concern at the plight of journalist Peter Greste while simultaneously moving to restrict media freedom and to refuse to protect the confidentiality of journalists' sources. It is one thing to pay lip service: it is another thing to act to support and defend a free media. The government continues to fail to act and, worse still, is seeking to restrict that freedom.

Under Steven Marshall's leadership the Liberal team will continue to advance the interests of transparency, openness and informed democratic debate through this bill and other initiatives. I commend the bill to the council.

Debate adjourned on motion of Hon. J.M. Gazzola.