The ABC has warned it could face corruption complaints for its journalists’ work under the national anti-corruption commission and has called for editorial work to be excluded from the commission’s purview.
The ABC made the request in a submission to a parliamentary inquiry on the Nacc, saying that the definition of corruption – which includes the “misuse of information or documents” – could capture confidential government information or documents being sent to an ABC journalist in “the normal course of the journalist’s work”.
Victoria’s anti-corruption watchdog also warned in a submission to the inquiry that the proposed “exceptional circumstances” test for holding public hearings was an “unnecessary” hurdle.
It warned it has been blocked from holding public hearings where it is in the public interest to do so because the corrupt conduct was not sufficiently “unusual”. The warning could be seen as an embarrassment for the federal government, which cited the “exceptional circumstances” test in Victorian legislation in support for its bill.
Transparency stakeholders are using the public hearings of a parliamentary select committee examining the Albanese government’s transparency legislation, which began on Tuesday and will run until Friday, to call for a lower bar for public hearings in the Nacc and a broader definition of corruption.
The ABC argued that the definition of corruption in the legislation “creates the risk of a Nacc investigation into the legitimate work of ABC journalists”.
The ABC warned this would have a “chilling effect” on journalism, and requested an amendment “to exclude the possibility of its application to ABC journalists’” use of leaked information.
It noted the federal police had raided it in 2019 over alleged leaks relating to its Afghanistan files investigation.
The media union and media companies’ Right To Know Coalition also warned the inquiry that warrants could be used to reveal journalists’ sources.
The bill contains a significant safeguard that journalists will not be compelled to reveal their informants’ identities, but the Right To Know Coalition said this could be circumvented by the Nacc using warrants to obtain material identifying the source.
At the hearing on Tuesday, the attorney general’s department deputy secretary, Sarah Chidgey, confirmed the Nacc could apply for a search warrant if there was a suspicion a criminal offence has been committed, subject to a public interest test.
Victoria’s independent broad-based anti-corruption commission, transparency bodies, the Law Council of Australia and academic Anne Twomey have all argued against the high bar for public hearings.
The Ibac submitted that if the ability to hold public hearings is limited to circumstances where “there will be no unreasonable damage to the witness’s reputation and no serious risk to the witness’s welfare” then there is “no need” for the further requirement of “exceptional circumstances”.
The Ibac noted it starts from “a similar default position – ie that hearings should be private” but submitted that it “does not consider that the existence of exceptional circumstances ought to be a decisive factor”.
It noted the Victorian court of appeal had defined “exceptional” as “clearly unusual and distinctly out of the ordinary” compared with the allegations of corrupt conduct ordinarily investigated by Ibac.
“This has had the effect of placing an artificial limit on Ibac’s ability to conduct examinations in public.”
The Ibac had been blocked from holding public hearings “because the circumstances or subject matter of the investigation are not sufficiently unusual or out of the ordinary to amount to exceptional circumstances”, it said.
The Liberal leader, Peter Dutton, has praised Labor’s Nacc bill, saying it had “got the balance right” and address concerns the body could conduct “show trials”.
But the Greens and crossbench have signalled they will attempt to amend the bill to remove the “exceptional circumstances” bar.
Their position is backed by the Australia Institute’s panel of expert judges, the Centre for Public Integrity and Transparency International.
On Tuesday the Liberal MP Bridget Archer told ABC TV she is “not yet persuaded” whether the exceptional circumstances test has “gone too far or whether public interest is sufficient”.
