South Australia's ICAC Secrecy Laws: How a Private Citizen Was Convicted Under Government Anti-Corruption Laws
Adelaide Magistrates Court (Image: Michael Coghlan)
Three years ago, a South Australian resident was facing over half a million dollars in fines after being found guilty of breaching state secrecy laws, but few people ever heard about it.
Nicholas Fletcher v. South Australia Police was in court over four years, from 2015 to 2018. Fletcher was the first private citizen to be convicted under South Australia’s Independent Commissioner Against Corruption (ICAC) Act, an anti-corruption law designed to address maladministration perpetrated by government officials. The Fletcher case served as a test for restrictive secrecy provisions written into Section 56 of the ICAC Act, which was created by the State Government in 2012.
Section 56 sets out strict secrecy requirements surrounding anti-corruption investigations, stating that a person must not publish—or cause to be published—information suggesting a person is, has been, may be, or may have been the subject of an ICAC complaint. The former Commissioner, the Hon. Bruce Lander QC, previously warned the public about the confidentiality provisions, explaining why he believed investigations should not be publicised, including not alerting people they were under investigation, protecting the public image of those under scrutiny until prosecution and avoiding misuse of the Act.
Fletcher was found guilty of eighteen counts of "publishing information about a person subject to complaint", in breach of Section 56. The counts against him stemmed from blog posts in which he mentioned his knowledge of local government and public officials being subject to an ICAC complaint. Other counts related to Fletcher allegedly submitting information about those same officials to journalists.
Those journalists, who worked at the ABC’s Mount Gambier office and the Border Watch—rather than publicly protesting the strict secrecy law that restricts what the media can publish—participated in the trial as witnesses against Fletcher. While the Border Watch printed several brief articles about the case, the ABC has never posted anything in writing online about Fletcher’s trial. This is despite the ABC having covered other ICAC matters regularly, and the case serving as an important precedent relevant to all journalists and members of the public.
While testifying in court, the Head of Mount Gambier’s ABC office, Stuart Stansfield, stated that he had kept a file on Fletcher, explaining that “anything to do with Mr Fletcher [had been placed] into that file.” He also stated that another local ABC reporter had insulted Fletcher, but to date, the ABC are yet to provide any evidence or justification for their unusual behaviour towards Fletcher. It is understood Stansfield has since left the ABC.
In response to a Freedom of Information application, the ABC refused to release any of the 102 documents they hold that relate to the Fletcher v. South Australia Police case.
The ABC provided a list of reasons for refusing to release any of the documents, which ranged from “substantial adverse effect on ABC staff”, to “legal professional privilege” and the documents contributing to “program material”.
An individual breach of Section 56 comes with a fine of up to $30,000. Upon being found guilty, Fletcher faced a maximum penalty of $540,000.
According to court records, Fletcher first raised concerns of corruption within Mount Gambier City Council in September 2013, in written complaints to the SA Ombudsman and his local MP Don Pegler. After Pegler referred the complaints to the Office for Public Integrity, ICAC investigated the matter and all members of the Mount Gambier City Council were exonerated in early 2014. Mount Gambier City Council made the exoneration public in their meeting minutes of May 20, 2014.
In a hearing in December 2016, legal counsel for South Australia Police stated that Fletcher had "exposed" his local government as the "subjects of complaint to ICAC" after being warned not to publish such information.
Court records for the Fletcher case run to above 1000 pages. Irrespective of the matter of Fletcher’s guilt or innocence, they document questionable behaviour from Government officials as the case progressed.
Fletcher’s trial began in February 2015. Records from the initial case hearings show that the second Magistrate to oversee the case beginning in February 2016, Magistrate Teresa Anderson, recused herself from the case in November 2016, citing it to be a “Abuse of Process”, as clearly marked on court documents.
South Australia’s Court Administration Authority refuses to make records from those sessions of court that Magistrate Anderson oversaw available to the public, claiming that because those sessions did not form the “trial proper”, they cannot be accessed. This is despite the trial having been underway for over 18 months at the point that Magistrate Anderson recused herself from the case.
Another Magistrate, Ian White—who has since been promoted to Deputy State Coroner, and is currently overseeing the Coronial Inquiry into the death of Adelene Leong—took over the case, and pressed forwards without the reasons for Magistrate Anderson’s recusal being addressed.
South Australia Police raided Fletcher’s house in May 2014, taking a laptop that they did not return to him for several years.
Court records show a witness for Police, Detective Sergeant Caroline Gardner, admitting that she held a laptop from Fletcher’s house “securely” for several months in her own office, in the months preceding the start of Fletcher’s trial, before sending it onwards to the Electronic Crimes Unit for processing. This laptop was used as evidence against Fletcher, but was not introduced as evidence until after his trial had begun.
In internal police emails, Gardner explains that once she collected the “e-crime material” relating to the laptop from the Electronic Crimes Unit in February 2015, she again delayed handing over crucial evidence, and did not provide it to the police Prosecution Unit for over a year—in March 2016, by which time Fletcher’s trial had been underway for over a year.
In another instance, a letter sent to Fletcher by a prosecutor at South Australia Police suggests prosecutors did not confirm his identity as the author of the blog at the centre of the secrecy law charges before his case went to trial. Sent by prosecuting solicitor Tessa Diamandi, the letter asks Fletcher to admit to being the author of the blog in question, and authoring comments on the blog “in relation to the ICAC investigation on the dates alleged as set out in the Complaint.”
“Agreeing this information would significantly reduce the length of the trial,” Diamandi wrote.
The letter authored by Diamandi was sent in March 2016—around the same time that Gardner was finally handing over the “e-crime material”—thirteen months after Fletcher’s court case had begun.
Most recently, Magistrate White acknowledged in a 2018 addendum to his guilty verdict against Fletcher that he had mistakenly conducted the years-long trial while referring to a dated iteration of the ICAC laws, as had the prosecution for South Australia Police. He acknowledged the prosecution and subsequently the Court had been "in error" for relying on an altered definition within the law throughout the court proceedings. Fletcher has not been granted a retrial despite the error.
White also handed down an intervention order within his addendum that meant Fletcher would be banned from attending meetings of his local government in Mount Gambier. That intervention order was not subject to any Court hearings, or more usual legal processes.
Fletcher is currently without legal representation, as he was for much of his trial.
A Select Committee on Damage, Harm or Adverse Outcomes Resulting from ICAC Investigations was recently established in South Australia, and has been holding hearings at Parliament House. Fletcher is due to speak at a hearing later this month, on May 28.