ICAC Commissioner Ken Fleming subjected an NT News journalist to a secret interrogation about the identity of a source

Former anti-corruption commissioner Ken Fleming “effectively went rogue” when he used his extraordinary statutory powers to subject a journalist to a secret interrogation, which included probing questions about the identity of a source, the media union says.

Former Independent Commissioner Against Corruption Ken Fleming QC. Picture: Keri Megelus

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FORMER anti-corruption commissioner Ken Fleming “effectively went rogue” when he used his extraordinary statutory powers to subject a journalist to a secret interrogation, which included probing questions about the identity of a source, the media union says.

The revelation is made possible by the expiration of a year-long gag order.

The ICAC admits such orders are “routinely” used to keep investigations confidential, which means it remains unknown if, when or how often Mr Fleming exercised the power since the grilling in July last year.

When summoned, journalist Jason Walls objected to answering questions about the identity of a confidential source, relying on section 127A of the Evidence Act, which protects a journalist from being forced to break an obligation of confidence.

While Mr Fleming agreed to proceed on the basis that the shield applied at the time, it did not stop him from asking questions that Mr Walls refused to answer because they would have revealed his source.

In response, the Media, Entertainment and Arts Alliance’s media director Adam Portelli said any anti-corruption body that used its powers to “intimidate [and] operate in secret” had “effectively gone rogue”.

Former ICAC Commissioner Ken Fleming QC. Picture: Che Chorley

NT News reporter Jason Walls.

“It is not what should take place in an open and transparent democratic society,” he said.

“Star Chamber powers must not be used to secretly [attempt to] compel a journalist to break their ethical obligation to never reveal a confidential source’s identity – to do so is in contravention of the Northern Territory’s own law.

“The public has a right to know what our governments do in our name – and that principle must apply to the judiciary and to anti-corruption bodies.”

Deputy Leader of the Opposition Gerard Maley called for a “full-scale review” of ICAC to determine whether the legislation in place remains fit for purpose.

Mr Maley tried to move a motion to establish a parliamentary review of the ICAC Act in Budget sittings last month, but it was immediately quashed by the Gunner government, which is already undertaking its own review.

“A full parliamentary review would go much further than the Chief Minister’s current back room in-house audit and provide greater scrutiny with respect to the operation of the Act,” Mr Maley said.

“There have been a number of instances where public confidence in the ICAC Commissioner and his office has been eroded.

“Michael Gunner’s secret review of the ICAC Act does nothing to restore that trust.”

But an ICAC spokesman has defended the commissioner’s actions, saying the journalist’s experience with the corruption watchdog was not out of the ordinary.

“The process described … is undertaken for anyone who appears before the ICAC and is in accordance with the ICAC Act,” the spokesman said.

“The ‘gag order’ you refer to is a section 147 notice not to disclose information, which are routinely issued to protect the confidential nature of our investigations and the reputation of those involved.

“We respectfully request that the NT News consider the impact publishing a confidential ICAC investigation may have on the office’s ability to investigate improper conduct and on the reputation of those under investigation.”

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Chief Minister Michael Gunner refused to comment directly on the actions of Mr Fleming, but said the government respects that “journalists have a very important job to do”.

“We also respect the independence of the ICAC and their ability to undertake an investigation into allegations of corruption or improper conduct,” he said.

Mr Gunner said the ICAC review currently underway would consider whether the Act was fit for purpose.

“This review will consider whether the ICAC has sufficient powers in line with modern practice to meet public expectations and maintain confidence in a government accountability body,” he said.

“[I have] formally requested that the review include advice on whether the Act is in line with contemporary best practice in regards to protection of journalist privilege.”

Mr Gunner also said he had asked that the review consider ICAC’s ability to investigate reports and complaints made about independent statutory officers, and to make recommendations as to how the legislation can strengthen this.

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Originally published as ICAC Commissioner Ken Fleming subjected an NT News journalist to a secret interrogation about the identity of a source