14 Oct 2015
Evidence (Journalists) Amendment Bill
Introduction and First Reading
The Hon. A.L. McLACHLAN ( 16:09 ): Obtained leave and introduced a bill for an act to amend the Evidence Act 1929. Read a first time.
Second Reading
The Hon. A.L. McLACHLAN ( 16:10 ): I move:
That this bill be now read a second time.
This bill contains provisions that, if enacted, will shield journalists from being required to reveal their confidential sources. This bill seeks to underpin the critically important role that the media and the profession of journalism plays in protecting the rights of the individual against capricious acts of the state.
In a liberal democracy the media facilitates rational and critical debate, which in turn provides an additional check on all the branches of government. This bill sets free the journalist to use their pen for the benefit of the community. The bill allows journalists to receive and recount information provided by those citizens who would otherwise feel constrained under the existing law to disclose sensitive information. This is a measured legislative initiative as it allows for the courts to exercise a discretion to order disclosure in certain circumstances where there are competing interests.
Government legislation is increasingly enlarging the power of the state’s investigative agencies, yet at the same time there has not been a corresponding increase in the oversight of these same agencies. All we are told is that there is criminal intelligence which justifies a particular course of action. We never see this intelligence, nor is it likely to ever be tested in a court.
In this environment, where the basic and longstanding rights of our citizens are under constant attack by the government and ultimately removed due to vague notions of operational necessity, we need a free and active media to hold the state to account. It is disappointing that our citizens cannot always rely on their parliamentary representatives or the institutions of the state to protect themselves. Many have had to resort to defending their rights in the public sphere.
This bill endeavours to assist journalists in their important work while at the same time ensuring that, in certain circumstances, a court can seek information where it is in the public interest to do so. This bill is identical to the preceding one which was introduced to the chamber by the Hon. S. Wade last year. The chamber passed that bill despite not having the support of the government. Unfortunately, the bill lapsed in the House of Assembly because the parliament was prorogued.
This is not the first such legislative initiative seeking to protect journalists and their sources. A bill was also introduced last year by the Hon. J. Darley, which preceded the Hon. S. Wade’s bill. This earlier bill incorporated Liberal amendments and also passed this chamber. As the Hon. J. Darley’s bill did not have the government’s support, it was defeated in the other place, being passed in the negative.
At the outset I acknowledge the work of the Hon. J. Darley and the Hon. S. Wade and their endeavours on this important legislative initiative. The Liberal Party has decided to bring a new bill before the parliament and once again provide its members a further opportunity to support the same, or reconsider their opposition.
The introduction of this bill is testament to the significance that members of the Liberal Party place on the need to provide protection to journalists while conducting their important work in our community. This bill is a symbol of the Liberal Party’s commitment to enhancing open and accountable government. The Hon. S. Wade has passed the baton to me, and I gladly take it to hand, for personally I believe that these are important amendments which will go some way to ensuring that governments are held to account and, in turn, the rights of our citizens are protected.
The common law does not protect journalists from revealing their sources. The legal rationale is that unless the courts can compel answers they will not be properly informed. This in turn disrupts the proper administration of justice and may contribute to an undermining of the public confidence in the legal system. The inability to obtain information also has the potential to lead to injustice. In other words, the paramount interest in the administration of justice requires that cases be tried by courts using all of the relevant and admissible evidence.
Those who believe in the importance of the role of the media in a free society, however, argue that the protections in this bill are essential. Investigative journalism cannot survive without confidential sources. The media claim an ethical obligation to keep the identity of some of their sources confidential. Unless journalists can guarantee anonymity, they will not be trusted with information which needs to be disclosed in the public interest.
The industry standards for the practice of journalism, peer pressure and the need for individual journalists to compete provide some mitigation against abrogation. On balance, the Liberal Party has sympathy for the proposition that it is in the public interest to shield journalists from revealing their sources. The public interest necessitates the freedom of the media because of the crucial part it plays in communicating and debating issues that are of interest to the public and in defiance of the desires of the state. This is particularly so for stories on corruption, maladministration and the abuse of power.
Under this bill, journalists will only be compelled to reveal their sources if the case fails the public interest test; that means where the public interest in revealing information outweighs potential detriment to the source. 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 an informant or enable that identity to be determined. The bill does not require an explicit promise of secrecy from a journalist to the source of the information in order for it to become privileged. The nature and circumstance of the communication determines whether the protection will apply. The journalist may need to discuss their story with the editor or another representative of their employer. This communication does not remove the protection of the source.
It is our view that the bill strikes an appropriate balance between the public interest of a free press and the public interest in the administration of justice. The bill leaves the balancing of competing interests and the particular facts of each case to the courts for adjudication. The government has made its views known in respect of the provisions of this bill. In late 2014, the government opposed the earlier bill, which contained identical provisions, in the other place. The Attorney-General made a contribution to this debate on this earlier bill, outlining the government’s position.
I ask the government to revisit its opposition to this legislative initiative of the Liberal opposition. We have fallen behind the majority of the states and the commonwealth in this realm. If the government benches need some comfort, they only need to look to the contributions to the debates in the commonwealth parliament by members of their own party. A succession of Labor attorney-generals and shadow attorney-generals have supported this type of legislation. The respected Labor senator John Faulkner acknowledged in a debate in 2009 that the protection of journalists’ sources is one of the basic conditions of a free press, as recognised by the European Court of Human Rights in 1966. Without such protection, sources may be deterred from assisting the press.
We do not believe the provisions of this bill to be ridiculous or unconstitutional, as they have been described by the Attorney-General in old debates. We do not believe that we have to identify any particular mischief that has occurred in South Australia to warrant the introduction of this bill. There are ample examples from outside the state and overseas. I would remind the government and the Attorney that if these were the criteria for the introduction of a bill, a large proportion of the government bills would not come before this chamber. My mind quickly turns to recent government initiatives in relation to the organised crime in this state, colloquially known as the ‘bikies bill’. The act may be found to be unconstitutional, was copied from Queensland, only limited evidence justified the need for it, and it was considered by some academics to be ridiculous or worse.
The government’s position has been that the law, as set out by the High Court, should not be amended by the parliament. This shyness to legislate over the views of the High Court is not something we have often seen from this government, which has so often proudly proclaimed its desire to affect change by statute.
The High Court sets out what the traditional common law position is at present, but does not assert what good policy should be. We assert that the law should be changed to better the lives of our citizens. While it is pleasing to read the remarks of the Attorney-General in the other place on an earlier version of the bill, stating that the High Court position is compelling and strikes the right balance, I do wish the Attorney had paid similar attention to the utterings of the High Court and other justices in other courts in relation to the separation of powers. It could be argued that the recent laws passed by this chamber which breached the separation of powers are reason enough to strengthen the fourth estate.
A free media is essential to a functioning democracy. We do not accept that the bill leans far too much to protecting the interests of journalists and discounts legitimate public interest in the administration of justice. Further, we reject the argument that the bill, if enacted, will undermine the operation of ICAC. The bill contains provisions that allow the courts to weigh competing interests. To use the words of senator John Faulkner, ‘Judicial discretion in these matters is not something to be afraid of.’
I have great faith in the work of our media and its important role in our society. I do not share the same cynicism of the operations of the media as expressed by the Attorney in the debate on the earlier bill. In my experience, the vast majority of journalists approach their trade professionally and ethically. The fourth estate plays a critical role in our society in voicing public opinion and questioning the cold narrative of the state.
The executive government is constantly growing in its power. The traditional role of the parliament is being weakened. It is therefore increasingly important for the media to hold the executive accountable for its decisions and actions by reporting on matters against the will of its collegium.
The media’s important role in our society comes with significant responsibilities to be fair and accurate. If the media are to enjoy the privilege granted by this legislation, it is incumbent on journalists to be professional at all times. I am confident that the profession of journalism and the ethics that underpin it will continue to ensure that these standards are maintained. The Liberal Party seeks the support of the chamber for the passing of this bill because it is an advocate for transparent, accountable and open government. I commend the bill to the chamber.
Debate adjourned on motion of Hon. J.M. Gazzola .
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