Bills

Evidence (Protections for Journalists) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 July 2014.)

The Hon. T.A. FRANKS (16:46): I rise on behalf of the Greens to support the Evidence (Protections for Journalists) Amendment Bill 2014, brought to this place by the Hon. John Darley. I acknowledge the work of the Liberal opposition, in particular the Hon. Stephen Wade. I also note the work, at a federal level, of the federal member for Denison, Andrew Wilkie, and the improvements made to his original bill by Senator Scott Ludlam, which I note are somewhat reflected in the amendments being put forward by the Liberal opposition to this bill.

South Australia is now one of only three jurisdictions that have yet to pass journalist shield laws in Australia. In fact, many of us from popular media would be very familiar with the right to protect the source of journalists in popular culture, and that is because it is quite a strong tradition in America and the UK. It has been less of a strong tradition in Australia, although in the profession of journalism there has been, within the Media, Entertainment and Arts Alliance Code of Ethics, a commitment to protecting a source.

However, there have been quite well documented cases where a journalist who has sought to protect that source has found themselves before the courts and, when insisting on protecting that source who has come to them with that information and who has asked to have their identity kept undisclosed, that journalist ends up not only in court but indeed in some cases in gaol, such is the commitment of the fourth estate to that particular ethic.

We are here, as legislators, to move forward in South Australia with protections for sources to journalists, shield laws for journalists to protect their sources and put that and enshrine it in law. The Greens support that. We think it is a step forward. We think the defeat of the Surveillance Devices Bill earlier on this week, put here by the government, is another step forward and we look forward to further debates on expanding freedom of the press and, indeed, a strong, healthy and robust civil society that includes that very robust media.

As I said, many journalists have found themselves falling foul of the courts when they have sought to protect their sources. Some of the more recent cases have seen Gina Rinehart take on, with her great wealth behind her, particular journalists who have exposed matters that she did not want exposed and take that through the courts. We have also seen, most notably I think and certainly one that speaks to me, Chris Masters, the journalist who was responsible for the ABC Four Corners program, The Moonlight State, not only faced the court once but indeed faced what he has called 'death by a hundred courts.'

He was pursued mercilessly for his exposure of corruption in Queensland, in that police force in that state. I would say that he has changed the face of Queensland for the better. We should have seen him able to protect his sources on that series of reports. I am sure that he and the culture of Queensland would have benefited from shield laws such as the ones we are going to discuss today.

The reason these shield laws are so important is that they are not just for one particular individual journalist and one particular source to be protected: they are to create a culture where people feel that they actually can trust that their confidentiality will be protected when they expose what is often corruption or criminal activity. In the Public Service we have whistleblower protections, and that is exactly as it should be. We should have these same standards in our media world.

One of the areas that state and federal jurisdictions differ on—and one that we will get to—is what exactly constitutes a journalist, and I look forward to that debate. I point to the fact that we live in a digital age. A journalist can take many forms in this day and age. You do not have to own a printing press or be a publisher of a major newspaper or, indeed, somebody wealthy enough to have finished the building of this building we are standing in today to have the power of that printing press. In fact, with the digital age, anyone can be a blogger or a journalist.

There are professional codes of ethics that I think should be upheld, and certainly the courts would be able to test this. The legislation we are looking at passing today would provide those protections for the public interest and for the very professionalism of journalism that we seek to advance. It does not matter whether you are paid or unpaid, it does not matter who you write for or how you present your story: it is the importance of that story to the public debate and to a healthy democracy. With those words, I commend the bill and look forward to the amendments being put forward and to further debate at the committee stage.

The Hon. S.G. WADE (16:52): This bill, as the Hon. Tammy Franks highlighted, is part of an ongoing conversation within this council. Regrettably, the government has not participated in it but, as the Hon. Tammy Franks recognised, the Hon. John Darley and the Liberal Party have both put down bills. As the Hon. Tammy Franks highlighted, there has also been activity in the federal parliament from Senator Xenophon and also from the Liberal Party.

In terms of the developments since this council last considered legislation in this area, the key development from the Liberal Party's point of view was the release of our shields law policy on 29 October 2013. That policy, which we obviously took to the last election, was part of a policy set that was endorsed by a majority of South Australians at the election. To quote my leader from a quote that he provided for that policy, 'People who alert media to important issues embody the core values of an open society.'

It is our view that a healthy, open society needs a free media. Journalists and media outlets hold interest groups, companies, governments and political parties to account. In that sense we are not so naive as to think that the Liberal Party will in a way be a victim of these laws. I am sure that there will be journalists who will gain information and use it to the discomfort of the Liberal Party in either opposition or government, but our commitment to an open society is such that we believe that we should, as an alternative government, promote laws that provide a framework within which South Australia can enjoy good government.

The Hon. Tammy Franks mentioned the whistleblowers legislation. This council will, of course, remember the work that we did in relation to the ICAC legislation, which actually forced the review of the whistleblower protection legislation in the context of the ICAC bill.

My understanding is that the Whistleblowers Protection Act review which was commissioned by the Attorney as required under the ICAC Act is not far away from the parliament, and we very much look forward to that. The whistleblower protection legislation and the shield laws legislation are two key examples of where this Legislative Council is providing leadership to the parliament to try and raise the bar in terms of good governance in South Australia. Again, I note the disinterest of the government in both areas.

Shield laws have been used internationally and around Australia to provide protection to people who engage journalists. As a matter of law shield laws provide that source-to-journalist communication is privileged and journalistic source identity is protected. Despite the growing popularity of shield laws across Australia, and our state and federal governments recognise the need to protect journalistic privileges, South Australia still has no such protections in place.

The Leader of the Government, in answering a question today, talked about the heritage of the Labor Party, and I note the reformist progressive governments that the Labor Party has provided from time to time such as the government of Don Dunstan. Even if one did not agree with everything that he did, at least he was reformist. South Australia was tending to lead the pack on reforms, not trail, yet I would suggest that considering that South Australia has no shield law protections—and that is a unique position in Australian jurisdictions—it is indicative of the way the Labor Party has totally left its heritage. On so many areas of law we are tail-end Charlie, not that the most radical proposal is always the best, but the South Australian tradition of being a generator of ideas and innovation is not something for which the Labor Party in South Australia can any longer hold its head high.

From the Liberal Party's point of view we do believe that progressive, well-considered proposals can strengthen a healthy and open society, so we certainly already have on the Notice Paper our bill for shield laws. We also regard the bill of the Hon. John Darley as highly commendable, and in that context we will be putting a couple of amendments to the bill before us today to, in our view, improve them. I would humbly submit to the Hon. John Darley and other members that they are improvements, and I look forward to discussing them with members at the committee stage.

The Hon. K.L. VINCENT (16:57): I take the floor very briefly to put on the record Dignity for Disability's support of this bill. I would hope it goes without saying that we cannot expose a lot of corruption and indecency that happens in the world if we do not give people the ability to freely and openly shine a light on those issues. It is very important that we have the protection of those who seek to do so through their profession such as journalists to enable them to freely go about their work without fear of consequence.

To that end we also very strongly support the amendments put forward by the Hon. Mr Wade, particularly his amendment to broaden the definition of what constitutes a 'journalist' under the bill. In this modern age it makes common sense to me that we should also cover what we might sometimes refer to as 'citizen journalists' given that this is certainly a growing industry and more and more people are turning to informal journalism to get honest and open accounts of world affairs. With that very brief contribution, we very strongly support both the bill and the Hon. Mr Wade's amendments.

The Hon. J.A. DARLEY (16:59): First, I thank all honourable members for their contributions on this piece of legislation and also acknowledge the work done by members of parliament in both the state and federal parliaments in bringing this legislation to the house. In summary, the bill prevents journalists and their employers from being required to reveal their sources where the information or identity in question was provided by an informant, that is, on the understanding that the source would not be disclosed.

The bill also allows for an exception to this rule when, on application by a third party or on the court's own motion, the court finds that the disclosure is in the public interest, the disclosure of the identity of the informants is necessary in the interests of justice, and the benefit of disclosure outweighs any prejudicial effects such disclosure may have on an informant, journalist or any other person. The onus will be on a third party to establish that the disclosure is warranted in the circumstances. In closing, I indicate that I will be supporting all of the Hon. Stephen Wade's amendments.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. D.G.E. HOOD: Briefly, I would like to place Family First's position on the record. We all seem to be in furious agreement. We support the Hon. Mr Darley's bill and, although we only received them recently, at first blush the Hon. Mr Wade's amendments look acceptable to us: obviously he will explain them further as he presents them.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. S.G. WADE: I move:

Amendment No. 1 [Wade-1]—

Page 2, line 14 [clause 3, inserted section 72, definition of informant]—Delete 'professional'.

The Hon. Mr Hood has put me in a difficult position because, having had assurances from a number of members that they will support my amendments, I thought that the best strategy was brevity, otherwise I would risk losing votes. However, the Hon. Mr Hood has invited me to explain my amendments, and perhaps if nothing else I owe the record and the people of South Australia an explanation as to the basis for them.

In so doing, then, I highlight that one significant difference between the Hon. John Darley's bill and the Liberal bill is the scope in terms of journalists. I apologise to members for the amendments not having been filed until earlier today, but I indicate that all they do is reflect the elements of the Liberal bill, which we believe should be picked up in the Darley bill. None of it is new, but I appreciate that members have not seen it in this form before, but I give you that assurance.

In terms of the Darley bill (if I can call it that), the definition of a journalist is more limited. The amendment to which I am speaking extends the definition to journalists more broadly, for example, those operating as contractors and freelancers. This approach is consistent with the scope of the commonwealth law in this area, and the Liberal opposition hopes that, by making this amendment to Mr Darley's bill, it will help future proof the laws to some degree in the sense that they can accommodate the changing nature of news media and news organisations.

In particular people working in parliament appreciate that the nature of media journalism and news dissemination are evolving at a rapid pace. News dissemination that I could not have imagined 10 years ago is with us and is having a significant impact on the way that journalism is promoted.

A journalist in either The Advertiser or a TV station here in Adelaide is very likely to be using tools such as Twitter and blogs in conjunction with their mainstream work. We particularly want to make sure that, if you like, this law provides journalists with protection across the range of their activities, but it also recognises the fact that media journalism and news will continue to evolve and that we may well have well-established journalists who do not use a news medium like a television or a newspaper as a base.

Under current New South Wales law, a professional journalist who blogs at home in a forum other than their workplace may not be covered. We do not want that risk to emerge for South Australian journalists. We do not want legislation to shape journalism. We want the journalistic profession and, if you like, the market for news to shape it. So the opposition submits that including a broader definition, similar to that used in the commonwealth legislation, would improve the bill of the Hon. John Darley, and I move the amendment accordingly.

The Hon. T.A. FRANKS: I rise on behalf of the Greens to support the amendment of the Hon. Stephen Wade and indicate that that is going to be reflected in our attitude towards his subsequent amendments. It will come as no surprise, given that it was Senator Scott Ludlam who broadened the definition of citizen journalists to include bloggers, independent media organisations, as well as news professionals and mainstream media.

In New South Wales, this has been a somewhat controversial definition and I note that Attorney-General Greg Smith controversially said that the federal law had the potential to cover people who 'can sometimes just be lunatics or people with very passionate agendas to push'. What I would say to that is that, in fact, people who can buy a newspaper or a TV station can also fulfil that particular description. It does not matter whether or not you are technically in the profession; you could actually fulfil that criterion, and certainly, while I would say some people who are called journalists and professional journalists would adequately fit that description and have agendas to push, what we are looking at is a new era where, as I say, you do not need to own a printing press or a TV station or be part of the mainstream media to in fact be part of the fourth estate or what is sometimes called the fifth estate.

I commend the cooperative work done at a federal level and I certainly look forward to a similar bipartisan or multipartisan approach here and a recognition of this new era. I also cannot help but note that we have an attorney-general in this state who, in the past days had commented that our laws were not keeping up with new technologies. Certainly, here is an opportunity for the government to embrace those new technologies and understand new media and provide appropriate professional protections, not only for those operating within it, but those who disclose information to them.

Amendment carried.

The Hon. S.G. WADE: If the Chair pleases, I would submit that Amendments Nos 2 and 3 of [Wade-1] are consequential on the amendment that we just passed, and so I move them accordingly:

Amendment No 2 [Wade–1]—

Page 2, lines 16 and 17 [clause 3, inserted section 72, definition of professional 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;

Amendment No 3 [Wade–1]—

Page 2, lines 18 to 20 [clause 3, inserted section 72, definition of news medium]—

Delete the definition and substitute:

news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.

Amendments carried.

The Hon. S.G. WADE: I move:

Amendment No 4 [Wade–1]—

Page 3, line 7 [clause 3, inserted section 72B(1)(a)]—Delete 'prescribed'

This amendment introduces the second element in our amendments. One of the differences between the Hon. John Darley's bill and the Liberal bill is that the Hon. John Darley's bill at this stage excludes the ICAC. The Hon. John Darley's bill—the bill before us—does provide protection from disclosure in royal commission proceedings and in other instances of compulsion. It only excludes ICAC hearings.

The Liberal position is that it would be better to have an across-the-board protection available to journalists, because that across-the-board protection is always qualified. As the Hon. John Darley mentioned in his second reading summing up, this bill before us does not give journalists a blank cheque or a carte blanche—whatever cliché one would care to choose—but rather, subject always to the public interest, the Supreme Court can determine that a journalist shall be compelled.

In a situation like an ICAC, when the community in South Australia has made very clear that we want the higher level of scrutiny of an ICAC, legislation reflects that the courts will give due regard to the duties and functions that have been given to the ICAC and they will make sure that the public interest is protected and if necessary that the public interest will require disclosure. No other Australian jurisdiction provides an explicit protection against disclosure in instances where the person is compelled to provide information. However, it is worth noting that our provisions allow this compulsion, as I said, in the context of the public interest.

Amendment carried.

The Hon. S.G. WADE: I move:

Amendment No 5 [Wade–1]—

Page 3, line 12 [clause 3, inserted section 72B(2)]—Delete 'prescribed'

Amendment carried.

The Hon. S.G. WADE: I move:

Amendment No 6 [Wade–1]—

Page 3, lines 14 to 23 [clause 3, inserted section 72B(2)(a) and (b)]—

Delete paragraphs (a) and (b) and substitute:

(a) he or she is—

(i) a journalist; or

(ii) a prescribed person in respect of a journalist; and

(b) —

(i) in the case of a journalist—he or she; or

(ii) in the case of a prescribed person—the journalist in respect of whom he or she is a prescribed person,

has been given information by an informant; and

(c) the informant gave the information to the journalist in the expectation that the information may be published in a news medium; and

(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),

Amendment No 7 [Wade–1]—

Page 3 line 31 to page 4 line 7 [clause 3, inserted section 72B(3)]—Delete subsection (3) and substitute:

(3) However, the court or commission may, on the application of a party to the proceedings or on its own motion—

(a) order that subsection (2) does not apply to, or in relation to, a person; and

(b) make any ancillary order the court or commission thinks appropriate.

(3a) The court or commission may only make an order under subsection (3)(a) if it is satisfied that, having regard to the circumstances of the case, the public interest in disclosing the identity of the informant—

(a) outweighs any likely adverse effect of the disclosure on the informant or any other person; and

(b) outweighs the public interest relating to the communication of information by the news media generally; and

(c) outweighs the need of the news media to be able to access information held by potential informants.

Amendment No 8 [Wade–1]—

Page 4, lines 9 to 18 [clause 3, inserted section 72B(4), definition of prescribed court]—Delete the definition

Amendment No 9 [Wade–1]—

Page 4, line 19 [clause 3, inserted section 72B(4), definition of prescribed person]—Delete 'professional'

Amendment No 10 [Wade–1]—

Page 4, line 20 [clause 3, inserted section 72B(4), definition of prescribed person, (a)]—Delete 'professional'

Amendment No 11 [Wade–1]—

Page 4, line 21 [clause 3, inserted section 72B(4), definition of prescribed person, (b)]—Delete 'professional'

Amendment No 12 [Wade–1]—

Page 4, lines 30 and 31 [clause 3, inserted section 72C(1)]—Delete 'proceedings under the Independent Commissioner Against Corruption Act 2012 or'

Amendment No 13 [Wade–1]—

Page 4, line 33 to 41 [clause 3, inserted section 72C(2)]—Delete subsection (2) and substitute:

(2) Subject to this section, but despite any other provision of this Act or any other Act or law, a prescribed person does not incur any criminal or civil liability if, in the course of proceedings to which this section applies, he or she fails or refuses to answer any question, or to produce any document or other material, that may directly or indirectly disclose the identity of an informant who has given information to the prescribed person, or a journalist employed or engaged by the prescribed person, in circumstances where—

(a) the informant gave the information to the journalist in the expectation that the information may be published in a news medium; and

(b) 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).

Amendment No 14 [Wade–1]—

Page 5, line 4 to 15 [clause 3, inserted section 72C(4)]—Delete subsection (4) and substitute:

(4) The Supreme Court may only make an order under subsection (3) if it is satisfied that, having regard to the circumstances of the case, the public interest in disclosing the identity of the informant—

(a) outweighs any likely adverse effect of the disclosure on the informant or any other person; and

(b) outweighs the public interest relating to the communication of information by the news media generally; and

(c) outweighs the need of the news media to be able to access information held by potential informants.

Amendment No 15 [Wade–1]—

Page 5, line 26 [clause 3, inserted section 72C(7), definition of prescribed person, (a)]—Delete 'professional'

Amendment No 16 [Wade–1]—

Page 5, line 27 [clause 3, inserted section 72C(7), definition of prescribed person, (b)]—Delete 'professional'

Amendment No 17 [Wade–1]—

Page 5, line 28 [clause 3, inserted section 72C(7), definition of prescribed person, (c)]—Delete 'professional'

These amendments are all consequential, but differing from the previous two amendments.

The CHAIR: Yes, we accept that.

Amendments carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.A. DARLEY (17:13): I move:

That this bill be now read a third time.

Bill read a third time and passed.