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ICAC laws constricting free press

May 13, 2014

South Australia’s secretive ICAC legislation is beginning to constrict the freedom of the press in this state – and it’s only going to get worse.

The Act’s provisions are so tight that, as more and more investigations begin, journalists will be prevented from reporting on a growing sweep of issues.

I would argue that, coupled with South Australia’s continuing position as the suppression state, the dead hand of the ICAC legislation has made this jurisdiction the worst for press freedom in the whole country.

The most telling problem is that I cannot even properly mount this argument, because to call up a real-life example would put me and this publication in potential breach of the Act.

All I can say to the reader is trust me – there are matters of significant public importance that I believe should be made public, about which some journalists have information, but about which we cannot report.

We have been effectively silenced.

The provisions of the Act are extraordinarily restrictive:

  • It’s an offence to publish information “that identifies or tends to identify” a person about whom a complaint has been made.
  • Media or individuals must not publish the fact that a person has made, or is about to make, a complaint or report to ICAC, or identify people who have given, or are about to give, information or evidence under the ICAC Act.

This has all been clear for a long time. The Government’s view is that publication of the names of those who are the subject of complaints would do significant damage to their reputation, unfairly so if they are found to have no case to answer.

There is also an unspoken code developing between journalists and politicians – if a politician shuts down questioning on an issue, reporters now presume that it is a matter that has been referred to the corruption fighting body. Rightly or wrongly.

However, there is a broader issue which may be of even more concern. What has slowly dawned on journalists since the ICAC set up shop last September is that whole issues of community interest can be killed off as public issues by default through a simple referral to the Office of Public Integrity – the “front door” of the ICAC.

Apart from the obvious restrictions this causes, the problem is that by discussing the broader issue, the identity of someone subject to an OPI referral could potentially be identified.

For example, InDaily is aware of Crown law advice about a certain category of misconduct which it concludes must be referred to the OPI.

I can’t tell you which category of misconduct I’m talking about.

I can’t tell you why it’s an area of importance that should be open to public discussion and debate.

All I can say is this – it’s important, we know about it, it’s of interest to you, and we can’t report on it.

I put the scenario to Commissioner Bruce Lander who, to his credit, is very accessible to the media (he assured me that it wasn’t a breach of the Act for me to tell him the full details of this particular case, as I understood them).

Lander believes the situation I’m talking about will be rare, and he emphasised that the Act only prohibits naming people or publishing information which may lead to someone being identified. Broad issues, he contends, even those that go to the substance of a complaint, can be debated if decoupled from the OPI referral.

I’m glad he’s sympathetic to the efforts of journalists to report. But to detach issues from OPI referrals would require decontextualising news reporting in a way which would be either opaque or potentially misleading to readers.

I hope Lander is correct about the rarity of this particular circumstance – but even if only one of these cases arises every year, that will create a slowly constricting noose around the neck of the free press in South Australia.

Making this restriction even more frustrating is the love affair of South Australian courts with suppression orders, particularly when it comes to actions involving public figures. That’s all I can say about that one.

To his credit, Lander recognised that the secrecy provisions were too tight very early in his tenure – but his proposed changes to the Act won’t facilitate media reporting.

He told InDaily yesterday that he had recommended to Attorney-General John Rau that the Act be amended, but only as it relates to communication about referrals to the OPI within agencies.

He had previously told InDaily that the Act was so tight that even his own staff had to seek individual authority to communicate with people and agencies who had made complaints to the OPI.

However, Lander won’t be recommending changes to the way the Act constricts media reporting. The prohibition on publishing the names of a complainant or the subject of a complaint is, he argues, at the centre of the Act’s rationale, which is to prevent reputational damage. Changing that, he argues, is a matter of policy which is in the hands of the government.

As the OPI continues to receive more and more referrals, I can see journalists getting tied up in more complex legal and semantic knots as we attempt to report on issues that have been referred to the office.

The bottom line is this: I’m worried about public life in South Australia – and I can’t properly explain why.

In a democracy, that’s just not good enough.

David Washington is the Editor of InDaily.

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