Malinauskas Govt mulls expanded journalist protections

Attorney General Kyam Maher says the state government will consider whether to expand South Australia’s journalism shield laws to cover search warrants executed by police or other investigative authorities.

Oct 07, 2022, updated Oct 07, 2022
Photo: AAP/Dan Peled

Photo: AAP/Dan Peled

The move follows a recommendation from the Attorney General’s Department, which recently completed a review of South Australia’s shield law legislation passed by the former Marshall Government in August 2018.

Shield laws protect journalists from civil or criminal responsibility if they refuse to answer questions or disclose documents in court that would reveal the identity of a confidential source.

The protections, often exercised in defamation cases, are intended to promote anonymous whistle-blowers making disclosures in the public interest without fear of retribution, while also protecting journalists from going to jail for adhering to their code of ethics to protect confidential sources.

All jurisdictions in Australia including the Commonwealth now have some form of shield law protection in place after Queensland passed new laws earlier this year.

The Attorney General’s Department’s review found no journalist in South Australia has needed to use the new protections since they came into effect on August 9, 2018, and most of the stakeholders who submitted to the review “had no suggestions for specific amendments to the provisions”.

However, the review recommended consideration be given to extending the laws to cover search warrants executed by police or other investigative authorities which could potentially reveal the identity of a journalist’s confidential source.

The recommendation comes after the Australian Federal Police in 2019 executed two separate raids – one on the ABC’s offices in Ultimo and another on the Canberra home of News Corp journalist Annika Smethurst – following the publication of stories containing information from leaked government documents.

The review highlighted both cases and said South Australia’s shield laws offer no protection from authorities gaining information via a search warrant and then admitting it in court, which “may in some cases have the effect of circumventing the journalist’s shield”.

Maher said he would begin a consultation process on whether changes to South Australia’s laws were needed.

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“A review of the legislation was recently undertaken to ensure our journalist shield laws are fit for purpose,” the attorney general said in a statement.

“The review highlighted one concerning aspect – namely for the intent of the law to be undercut by the execution of a search warrant that would enable authorities to gain access to materials that would disclose the identity of a confidential source.

“I will be consulting with media outlets, the legal profession and authorities on whether we need to make changes to address this.”

The review said only Victoria and Queensland’s shield laws contain provisions extending to search warrants.

In Victoria, a party to a court case can object to information being seized via a search warrant on the basis it would reveal the identity of a confidential source. The matter will then come before the court to determine the objection.

South Australia was the second-last jurisdiction to introduce shield laws when they passed parliament in 2018.

In 1993, South Australian ABC reporter Chris Nicholls spent three months in a maximum security prison cell for protecting a source.

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