Evidence (Journalists) Amendment Bill

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (15:47): I am pleased and proud to introduce the Evidence (Journalists) Amendment Bill 2018. The bill amends the Evidence Act 1929 to introduce a default position that journalists cannot be compelled to answer a question or produce any document that may disclose the identity of a confidential informant—joyous news to journalists in South Australia. Communications with journalists do not enjoy any special privilege under the common law in Australia, and there is High Court authority to this effect.

However, there are strong public interest arguments for confidential communications with journalists to be protected. As many members know, for some years this bill, in its various forms, has been reintroduced into the South Australian parliament. The former Labor government maintained consistent opposition to provide journalists with a shield, and it was an astonishing position for them to hold. No amount of persuasion, logic or common sense could change their minds. I commend the work of the Hon. Stephen Wade MLC, the Hon. Andrew McLachlan MLC and the Hon. John Darley MLC, all in the other place, for their contributions and relentless efforts in this matter.

The bill I introduce today essentially reflects work undertaken in 2013, 2014 and 2015 in attempting to protect journalists in certain circumstances from being prosecuted and/or persecuted by dint of them undertaking their lawful activities. In a liberal democracy, the media facilitates the rational and the critical debate, which in turn provides an additional check on all branches of government.

As we know, many sources risk their own health or career prospects to bring to light information in the public interest, much of which would not be disclosed were the anonymity of the source not protected. This can have the effect of hiding corruption, undermining accountability and impedes public debate. In contrast, by enabling journalists to keep confidential the identity of an informant, people will more readily come forward with information on matters of public interest, which will hold governments, interest groups and large corporations to account. This is a principle that the Marshall government strongly supports.

Journalists and other members of the public have expressed concern at the lack of legal protections afforded to those who expose information in the public interest. We on this side of the house believe that those concerns are well founded, and that is why, in the lead-up to the March state election, the Liberal government promised to introduce journalist shield laws if elected, as we have done previously three times. Importantly, shield laws form part of the Marshall government's broader accountability and transparency agenda across government, which stands in stark contrast to the modus operandi of the former government.

It is instructive that a majority of Australian jurisdictions, including the commonwealth, New South Wales, Victoria, Western Australia and the ACT, have already legislated to introduce a similar rule, commonly referred to as 'journalist shield laws' or 'journalists' privilege'. Returning to the details of the bill, it defines 'journalist' as a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium, in turn defined as a medium for the dissemination to the public, or a section of the public, of news and observations of news. This is consistent with the definition in the New South Wales Evidence Act 1995 and also the approach in the Victorian Evidence Act 2008. A journalist, for the purposes of the provisions, need not be employed by a media outlet. The definition applies also to contracted and freelance journalists, provided journalism is their profession or occupation.

The risk in defining 'journalist' more widely—for example, the equivalent commonwealth definition refers to a person engaged and active in the publication of news—is that less scrupulous people, potentially with fictitious sources, may receive protection. This risk needs to be balanced against a concern to adopt a definition sufficiently wide to allow for rapidly evolving online platforms for journalism and a shift away from traditional forms of news towards new modes of public communications, such as blogs and tweets. To allow sufficient flexibility to respond to rapid evolution in modes of public communication while avoiding the risks associated with a wide definition, the bill allows for regulations to specify classes of persons who are deemed to be included or excluded from the definition of journalist.

These new laws will apply to courts, which is broadly defined in order to include a tribunal, authority or person invested by law with judicial, or quasi-judicial powers, or with authority to make any inquiry or to receive evidence as set out in section 4(1) of the Evidence Act 1929. There will be no change to that law from the current position. Accordingly, this will include inquiries conducted by the Independent Commissioner Against Corruption.

Further, the bill will provide that no civil or criminal liability is incurred by a journalist for failing or refusing to answer any question or to produce any document or other material that may directly or indirectly disclose the identity of their informant. This must, however, be an informant who reasonably expected that their identity would be kept confidential, whether because of an express undertaking given by the journalist or otherwise; that is, the expectation of confidentiality may be implied from some circumstance.

The bill also provides that the default position against disclosure is subject to an overriding public interest test. Under public interest, a court may order disclosure if satisfied that, having regard to the circumstances of the case, the public interest in disclosing the identity of the informant outweighs any likely adverse effect of the disclosure on the informant or any other person, outweighs the public interest relating to the communication of information by the news media generally and outweighs the need of the news media to be able to access information held by potential informants.

The ability of a court to order that an informant's identity be disclosed if it is in the public interest strikes an appropriate balance between what may be competing public interest, on the one hand, in having the informant's identity disclosed in particular circumstances versus, on the other hand, an adverse impact on the informant and the public interest in facilitating the free flow of information. This is an important bill. It is one that has been a long time coming, and it would not have been introduced had it not been for a change of government. I would like all members of the parliament in this house and in the other place to consider the favourable passage of this bill. I welcome the debate that will follow in this regard.

I note that the member for Narrunga, newly in our chamber, is a journalist. The member for Torrens is a journalist, and I am hoping that she might have a lightbulb moment and decide the significance of this notwithstanding previous positions taken by those on the other side. The Hon. Mr Frank Pangallo (who is now a member in the other place) and the member for Badcoe, newly in this house, have a background in journalism.

Of course, and our Minister for Police. I have been so impressed with his recent presentation. I thought how brilliantly he presents under all sorts of pressure, that he understands the significance of performance under fire, and he certainly has attributed those skills to his extensive history in the media.

Not all of us are so privileged to have had that experience or qualification, but now is the time for members, whatever political persuasion, whatever party they represent, to stand up for what must happen. We cannot be left behind in South Australia to not have this and to ensure that we have the public debate. I look forward to that debate warmly.

I should disclose, just in case there is any conflict of interest, that I have a son and a daughter-in-law both in the media, and probably I will have some sort of comment from them that it is the most useful thing I have done at all since we have got into government. Nevertheless, I want to say that there are a number of people and stakeholders who have contributed to the development of this legislation and we are very pleased to have it presented.

I table formally the explanation of clauses, which I hope will assist in the considered debate of this bill.

Debate adjourned on motion of Mr Odenwalder.