OPINION: The job of the Independent Commissioner Against Corruption is to find, consider, and weigh evidence, and come to a conclusion based on that evidence, however Michael Riches has clearly failed to live up to the requirements of the ICAC legislation and needs to be investigated by the Inspector for this breach, writes Dr Don Fuller.
While Independent Commissioner Against Corruption Inspector Bruce McClintock has decided, surprisingly, not to take action against NT ICAC Michael Riches for appearing not to have disclosed a domestic violence allegation made by his wife and other misconduct, the NT Commissioner’s handling of the allegations of misuse of public monies by the previous chief minister, Michael Gunner and his ministerial staff, during a caretaker period, also requires investigation by Mr McClintock.
This is because, despite evidence clearly pointing to a breach in the use of public funds for party political purposes, commissioner Riches has been unable to make any findings.
This suggests that the commissioner is himself, likely to be in breach of the requirements of his own, relevant legislation and government codes of conduct, established to prevent such a misappropriation of public funding.
On May 23, Mr Riches released an investigation report addressing the conduct of Mr Gunner as chief minister during the caretaker period in the lead-up to the 2020 Northern Territory general election.
The investigation commenced in response to two allegations of improper conduct during that period.
The first allegation was that, in the lead-up to the election, members of staff of the Office of the Chief Minister had engaged in political work during office hours to support the Northern Territory Labor election campaign.
The second allegation was that, during the caretaker period in the weeks leading to the election, Mr Gunner and other public officers misused public resources by undertaking taxpayer-funded travel for political purposes.
The report by Mr Riches focuses on the second allegation, specifically addressing three trips to remote locations on their polling days for the election, within the caretaker period, although others also occurred.
Government in Australia is based on the Constitution, legislation, and a series of important conventions. These conventions are regarded as essential for the fair and ethical operation of governments based on the Westminster system. An important example of such a convention is the caretaker role of a government.
In the period immediately following when an election is called and during an election, the government assumes a caretaker role. This practice recognises that when the parliament is dissolved in order to call an election, the government cannot be held accountable for its decisions in the usual manner.
These conventions also underpin the public service’s impartiality and prevents public servants being used to benefit a particular party during the election campaign. This period extends up to the point at which a new government is sworn in.
During the caretaker period, ministers, ministerial staff, and departments must not make expense claims relating to the election campaign, as these costs need to be borne by the respective political party.
Ministers’ claims for travel expenses cannot be for political electioneering during the caretaker period.
In summary, the conventions are intended that the government of the day avoids major policy decisions that are likely to bind an incoming government, avoids making significant appointments, does not enter major contracts or undertakings, and protects the apolitical nature of the public service.
READ: McClintock clears Riches of improper conduct, fails to speak to victim of alleged domestic violence
The Northern Territory of Australia Independent Commissioner Against Corruption Act 2017 sets out important functions and obligations of the commissioner and the office of the ICAC. Under a section titled, ‘Matters ICAC to take into account in performing functions’, it says there is public interest in the ICAC “acting and being seen to act fairly and impartially”, “ensuring offences involving improper conduct are investigated and prosecuted”, and ensuring “the proper functioning of democratic processes”.
In November 2021, the commissioner decided to refer the first allegation to the chief minister for action. Within that referral he directed Mr Gunner to report back to him within 90 days, as to the action taken.
In December 2021, he became aware that he had not determined the second allegation. As a result, he decided to commence an investigation.
This oversight seems unreasonable and unacceptable and raises the question as to whether the commissioner would not have commenced an investigation at all, had he not been pressured to do so, by independent MLA Robyn Lambley who made the original request for an investigation.
He then admits in what can only be described as a manner designed not to promote confidence in the efficiency and effectiveness of either his office or himself, that the investigation “progressed at a glacial pace”.
An important reason for this he states is because he found the subject matter of the investigation to not be straight forward, and that the political divide between what constitutes political activity and official duties is not clear. In his view this created “significant complexity”.
This is a most unpersuasive argument. The distinctions are clear and precedents have been well established, not only in the Northern Territory but all jurisdictions within Australia.
Somewhat ironically because of a subsequent lack of action, the commissioner in his report sets out applicable standards of conduct and behaviour expected of ministers and ministerial staff. He points out that these are addressed in a series of documents administered by the Office of the Chief Minister.
He explains that the Northern Territory ministerial code of conduct is annexed to the Cabinet handbook. The ministerial code contains guidelines developed to assist ministers understand their responsibilities and obligations within the Westminster system of government and as ministers generally, including during the caretaker period.
It establishes clearly that public resources are to be used in a proper manner.
The staff code of conduct also makes specific reference to party political work not being performed using public funds or government resources.
The evidence strongly suggests there has been a key breach of these codes with the responsible minister, in this case the former chief minister Mr Gunner, having responsibility in ensuring good governance in the spending of public money.
READ: Gunner resigned amid corruption investigation: ICAC, MLA confirm
ANALYSIS: Behind the scenes in the days leading up to Gunner’s sudden resignation
The commissioner in his report, sets out the explanation given by Mr Gunner, and others, as to the underlying purpose for the travel.
In confused and perplexing reasoning, the commissioner states that it was not disputed that the trips were timed to permit attendance in a community during which a remote polling booth was open.
Indeed, the evidence was that those trips were planned for the very reason that those remote polling booths would be open.
How is it possible then to not regard an important objective of the trips as being for political purposes?
However, in befuddled and confused argument it is then claimed that the purpose may not have been for “political purposes”, but for “community engagement”.
It was argued by the Mr Gunner for example, that engagement within remote communities is difficult and rarely are there events during which the community will come together. An open polling booth he argued, is such an occasion.
However, to say this is a very flimsy and unconvincing excuse and justification, would be a major understatement. There are a number of other ways the community can be brought together at other times for serious community engagement.
This would be particularly the case when the chief minister is visiting. It would be common practice for a barbecue or other function for example, to be arranged. No evidence of such attempts exists.
It is also not clear that most of the community would attend the remote polling booth to vote. Participation in polling is often very low.
The fact that Mr Gunner went on polling days – not once, but several times – is clear evidence that this behaviour should have been regarded as a breach of both the caretaker period and a misuse of taxpayer funding.
For example, on August 11, 2020, there was an email exchange between two staff members, which included a proposed itinerary for travel to Nauiyu and Minyerri.
Alongside the proposed itinerary, the attachment to an email contained a highlighted passage that stated “one hour at each booth”.
The email contained a proposed list of passengers on a charter flight which included Mr Gunner, three staff members and Federal Labor member of Lingiari Warren Snowdon.
An Outlook meeting invitation was sent from Mr Gunner’s email account by a staff member on August 13. That invitation was sent to three other staff members and bore the subject line “Arnhem – Minyerri booth”.
The itinerary for August 14 proposed a time of one hour at each booth.
An email from a staff member dated August 13 contained multiple references to the group travelling to, and between, booths.
The email indicated that as the flight was a charter flight, there would be flexibility in the flight times, depending on how they tracked at the booths.
Also on August 13 a staff member sent an email containing a schedule, with multiple references to the group travelling to, and between booths.
“Always a pleasure getting out to Arnhem and today I visited the Minyerri booth with the Federal Member for Lingiari,” an email from Mr Gunner’s email account said.
“It was great to have Warren with us and to see democracy working for our bush electorates.”
Below that text was a photo of Gunner, Mr Snowdon and the then-NT Aboriginal affairs Minister Selena UIbo, together with three other people wearing Labor Party shirts and standing under a Labor Party marquee.
The evidence of political activity is over-whelming and yet the commissioner chooses to ignore it in a manner which to many, is incomprehensible.
On August 17, an Outlook meeting invitation was sent from Mr Gunner’s email account to two staff members. The invitation bore the subject line, “Mulka – Galiwinku Booth”.
The mobile voting centre at Wadeye was located in the Sport and Recreation hall, and was open on August 19, between 8:30am and 4:30pm, and on August 20, between 8am and 2pm.
While the reasons for the travel may have been recorded by a staff member as ministerial travel, and community engagement, it is clear from both the proposed itineraries which specified the time spent at polling booths, as well as the fact that Mr Snowdon was attending, that this was clearly political activity.
No other community activities or consultation were mentioned in the emails.
Community engagement does not take place at a polling booth, except in an attempt to influence voting, and Mr Snowdon was a federal Labor politician who has a high political profile in Aboriginal communities.
He would obviously have been included for electioneering purposes.
In an explanation which suggested an unwillingness to engage with the evidence, the commissioner argued in his report that “what constitutes a political purpose, as opposed to a public purpose, is not well defined and there remains … intolerable ambiguity”.
That ambiguity is one of the reasons he decides not to proceed to record findings in this report.
However, this raises the question of just how every possible activity can be defined in legislation in such a way as to encompass all activities, and also make clear the distinction between a political purpose and a public purpose?
In this instance, this is an unreasonable and unrealistic demand by the commissioner. What is required is an ability to assess and weigh evidence, and exercise reasonable and fair judgement to come to a decision.
If the evidence suggests that a politician is travelling to a polling booth during the caretaker period, and is in a political party branded tent with other politicians and members of staff, and there is no other evidence of community consultations, surely the evidence supports the allegations.
It would be difficult to imagine that there could be any clearer indication of involvement in direct political activity than attending a polling booth in a tent badged for political purposes.
For Mr Riches to claim this may be community engagement in the face of overwhelming evidence exhibits a very high level of naivety at best, and an inability to come to a clear and logical conclusion based on a large amount of supporting evidence.
Alternatively, it may be a strategy designed to minimise conclusions detrimental to powerful people – the exact opposite of the role of an ICAC, and the reasons why an ICAC was established.
It is clearly most unfortunate that the commissioner has little real world experience in the operation of the political process.
This is unacceptable because it means he is very likely to struggle to distinguish between activities that breach the conventions of the Constitution in a democratic system based on Westminster principles, and those that do not.
The commissioner needs to be able to promote a culture built on the principles of integrity, independence, fairness, courage, accountability and public interest. These desirable characteristics cannot be achieved if important evidence is ignored or wrongly interpreted, and if it appears obfuscation, confusion and a lack of logic are employed to arrive at unsupported, unconvincing, illogical conclusions.
It is on this supposed complexity and lack of clarity that the commissioner decides to make a key decision that he is unable to make a finding that Mr Gunner did, or did not, engage in improper conduct.
However, the task of the commissioner was to consider and weigh the evidence, and come to a conclusion based on the evidence. In this, he clearly failed to live up to the requirement of legislation establishing ICAC, and codes of conduct established by the Department of the Chief Minister.
Even though the evidence was overwhelming that the former chief minister had attended polling booths, and was present in a Labor politically badged tent with other politicians, the commissioner refused to find that this involved electioneering.
Rather, he attempted to prevaricate by avoiding the issue and by claiming that the definitions between electioneering for a political purpose, and community consultation for public purposes, had not been clearly established, preventing him from making a decision.
However, this is what considering and weighing the evidence requires. This is because it is not possible to codify and define every possible eventuality in legislation. Consideration of the evidence requires someone who can make a fair, reasonable, just and logical decision, based on clear evidence.
In addition, it is clear that even if Mr Gunner and his political associates were also involved in community consultations on the little evidence provided, there was no doubt that they were also involved in electioneering, based on clear evidence.
A corruption commissioner cannot behave like Blind Freddy, unable to focus on the elephant in the room.
To fail on this relatively simple task, indicates that political operatives will have little difficulty running rings around him, in a more sophisticated set of circumstances, when further breaches of ethics, integrity and political behaviour occurs in the future.
Dr Don Fuller grew up in Darwin and attended Darwin High School. He worked in the Department of the Chief Minister and for a short time for Paul Everingham, the first chief minister of the Northern Territory. He also worked as the electoral manager for the successful Tiwi candidate for the seat of Arafura, Francis Kurrupuwu, at the 2012 Territory election. He has been a member of both the ALP and CLP.
He also holds a first class Honours degree and PhD in economics from the University of Adelaide. He has worked as the Professor of Governance and Head of the Schools of Law and Business at Charles Darwin University.
Dumb Ass Politicians and Seriously Apathetic Local Constituents!!
Territorian’s deserve this low quality set of Politicians!!
Why can’t governments just say ‘Sorry we were wrong’ That doesn’t show a weakness but a strength. ‘Honesty is the best policy’. Listen to the opposition and the Independents if their ideas have merit, please support them.
Our Government needs to work together to improve the NT as they did in the 80s and 90s. Not just carry on like little brats as they have since Labor was first elected to power.
As obvious as the failure of the ICAC has been in investigating the misuse/malfeasance of government funds, CM Lawler is more than happy to seize on the botched report for her own political purposes. To claim the report absolves her and Labor of anything wrong in order to justify keeping the cash is really stretching things. On top of this we have two MLA’s that used government funds for personal holidays. The review of that action also fails to remove the stink that surrounds the government. This is playing out like a scene from Hamlet where ‘there is something rotten in the state of Denmark’s. But hold back on calling a travel agent as we have already had that fiasco.
All pigs with their snouts in the tax payer funded trough.
Thank you Mr Fuller for a good insight into ICAC and the NT Labor Party.
If your able, could you explain ‘Independent’ please. I mean, it is well known that Labor have cut funding to ICAC and threatened to cut more from its budget. If ICAC have to beg for my money from the Labor Government, how are they Independent? Is this process open to corruption?
Dont bite the hand that feeds you so how is any report going to be genuine while the system is operated as it is. Mate, mates, mates. just looking after mates.