Exposing corruption in the age of the NACC A guide for journalists and media organisations
07 December 2022
07 December 2022
On 30 November 2022, the National Anti-Corruption Commission Bill 2022 (Cth) passed both Houses of Parliament. The NACC Act establishes the National Anti-Corruption Commission and its associated infrastructure.
While the NACC Act has obvious impacts on public officials and individuals who work with them, it also affects the journalists who report on these individuals and their conduct.
Journalists play an important role in exposing corruption, holding government to account and maintaining transparency. The new legislation provides some recognition of this role, and includes provisions which in some instances support and in others may impede this role (particularly when the NACC Act is viewed in its full legislative context).
In this article we set out a summary of the newly introduced provisions that journalists and media organisations should be aware of.
Section 31 provides some protection for the identity of journalists' informants. The provision protects journalists, their employer and those assisting the journalist (either as an employee of the journalist's employer, or otherwise in that person's professional capacity) from being required to do anything under the NACC Act that would disclose the identity of their source or enable that source to be identified, whether the source provided information on the understanding that their identity would be protected.
This is an improvement from the initial draft of the Bill, which only provided protection to journalists and their employer, but not other individuals, either within the media organisation or assisting a journalist in another capacity, who may be aware of a confidential sources identity and could be compelled to disclose the identity of a source if required.
After media organisations raised concerns about the failure to protect such individuals, which would be an easy workaround for those seeking to reveal a source's identity, the provision was updated so that those individuals would also have the benefit of being able to use this protection.
There are some important limitations to keep in mind if you are considering relying upon this section to protect a confidential source.
First, and most importantly, the protection only extends to responses to notices to produce and questions asked in a hearing. The protection does not extend to the issuing or execution of a warrant by the NACC or other authorities. If, for example, a journalist's home is searched under warrant and their notes containing the identity of their source are seized, the journalist cannot claim the protection under section 31 to stop their notes being taken or used.
This exception greatly limits the effectiveness of the protection, given that NACC investigators can simply obtain the information they seek by issuing a warrant, rather than issuing a notice to produce or summons on the journalist.
Second, the protection only relates to the source's identity, not to the information provided by the source. A journalist could still be asked to disclose the information they were provided by the source, and would have no basis to object (particularly given the NACC Act does not enable a person to use a "public interest" exception to refuse to answer a question).
Third, the protection does not extend to the source themselves. At a hearing, the source could be asked if they spoke to the journalist, and will not have any basis under the NACC Act to refuse to answer the question. Journalists should make sure that any sources seeking to remain confidential are aware of this limitation.
As noted above, the informant protections under section 31 do not prevent an authorised officer from doing what they would otherwise be able to do in exercising warrants powers under Part 1AA of the Crimes Act 1914 (Cth) for the purposes of the NACC Act: i.e. take materials identifying the source.
Notwithstanding the above, section 124 of the NACC Act modifies the application of section 3E of the Crimes Act (the warrants provisions), such that if the warrant is to search a journalist or their employer's premises, the issuing officer must have regard to whether the public interest in issuing the warrant outweighs the public interest in:
a) protecting the confidentiality of the identity of the journalist's source; and
b) facilitating the exchange of information between journalists and members of the public so as to facilitate reporting of matters in the public interest.
However, given the issuing of these warrants will not involve a contested hearing, it will be difficult to assess to what extent the public interest has been taken into consideration when determining whether to issue the warrant.
This new warrant provision also fails to take into account the recommendations made by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) that public interest advocates be involved in a hearing before are issued on journalists or their employers.
The relative ease with which warrants can be obtained, and the fact that journalists and their employers will have no basis on which to contest the use of a warrant to obtain information about a journalist's sources will be a cause for concern for journalists involved in investigative reporting.
Media organisations should ensure their employees are familiar with the steps to take should a warrant be issued in relation to them, including having relevant legal counsel ready and available to advise.
The NACC Act contains new protections for whistle blowers against liability and reprisals.
However, these protections only apply where the whistle blower makes their disclosure in accordance with the regime set out under the NACC Act: i.e. that they make their report to the Commissioner, IGIS or Inspector.
The whistle blower will not be protected if they make their disclosure to a journalist, which is problematic given that whistle blowers will often feel more comfortable speaking with a journalist rather than a public official, at least in the first instance.
Journalists should make sure any sources who approach them seeking to disclose information on a confidential basis as a whistle blower are aware that they will not have the benefit of the whistle blower protections under the NACC Act once the disclosure is made, and that the journalist will only have a limited ability to protect their identity (which may then expose them to liability and reprisals).
Part 7 of Division 4 of the NACC Act allows the Commissioner to make a non-disclosure notation in a summons or notice to produce if the Commissioner is satisfied that not doing so might prejudice a:
or where it might be contrary to the public interest.
The effect the non-disclosure notation is to prohibit the person who receives the summons or notice from telling anyone that they have received the summons or notice, except to obtain legal advice: it is effectively a suppression order.
This means journalists cannot disclose the fact they have received such a notice to anyone, even their editor, with the exception of their legal counsel.
Given most NACC investigations will relate to something which might harm a person's safety or reputation, it seems likely that most summons and notices will contain such a non-disclosure notation.
Accordingly, media organisations should ensure journalists are trained in how to respond to such notices (including the obligation to not discuss the notification with other employees or their editors), and to seek advice from the appropriate legal contact within their organisation if they receive a notice containing a non-disclosure notation.
Section 73 of the NACC Act states that hearings must be held in private, unless the Commissioner determines that exceptional circumstances justify holding the hearing, or part of the hearing, in public.
This means that the public, including journalists, will not have access to NACC hearings in most instances.
Under sections 113 and 114 of the NACC Act, a person is not excused from giving an answer or information on the grounds that to do so would:
Unless the answer to the question would identify a source or disclose legal advice, the relevant individual cannot refuse to answer a question.
If a journalist or other person refuses to respond to a notice to produce, to comply with a summons or to answer a question asked in a hearing, they may be subject to penalties for contempt.
The Commissioner also has powers to seek that an individual be detained for the purposes of bringing them before court for the hearing of a contempt application (section 85).
While investigation reports must be published, the Commissioner can exclude any "sensitive information" from such a report under section 151. Sensitive information includes anything that could endanger a person's safety or prejudice a fair trial. This is a broad definition and may be used to exclude a substantial amount of relevant information from reports.
Journalists working for the ABC and SBS should be aware that, despite being public bodies, they are protected from a number of provisions which would otherwise apply under the NACC Act, including the permission to enter a public premises without a warrant.
While the NACC Act contains some recognition of the important role journalists and the media play in the exposure of corruption, further work needs to be done to ensure this role is properly protected.
Public integrity and accountability rely on media freedom. Journalists should be empowered to investigate corruption, and not be exposed to penalties for performing important work.
Journalists, media organisations and others who are interested in the protection of reporting in Australia should continue to push for reforms to allow warrants issued on journalists and media organisations to be contested.
All interested parties should continue to urge the government to make further amendments to the NACC Act to provide greater protections to journalists' sources (including whistle blowers), to continue encouraging the exposure of corruption at all levels of government and in the public service.
All Australians have an interest in ensuring the NACC processes are as transparent as possible, with hearings and reports available to the public and reported on by journalists.
While we work towards these reforms, journalists and media organisations should educate themselves on the protections they are and are not entitled to under the NACC Act, and ensure they seek legal advice as soon as possible.