Staffers in former Labor chief minister Michael Gunner’s office used taxpayer money and resources to perform party political campaign work during the lead up to the 2020 NT election while knowing it was “inherently improper”, a new report by the Office of the ICAC has found, but again nobody has been held responsible.

The report shows select ministerial staffers were seconded into the “digital unit” where aside from their day-to-day duties as government officers, the covert group designed Labor’s election policies, produced party-political campaign videos, door-knocked and created social media posts, with one staffer telling the ICAC he had been told not to do it on government time but that the senior officials who told him that were “trying to cover their own backs”.

The second part of the ICAC’s long-delayed Operation Jupiter investigation was tabled in NT Parliament on Thursday afternoon, following the first report into Mr Gunner’s misuse of taxpayer money to fly to remote communities on polling days ahead of the 2020 election that was publicly released last May, which failed to make any findings of improper conduct, or any findings at all.

The latest report, which was scheduled to be completed last June, was delayed eight months after commissioner Michael Riches was suspended while being investigated for alleged “inappropriate conduct” towards female staffers. The report was further delayed when former acting commissioner Naomi Loudon indicated she had an undisclosed conflict of interest in the matter.

The second part of Operation Jupiter, which investigated misuse of taxpayer resources by ministerial staff working for Mr Gunner, was finally completed by John Chaney, a former justice of the WA Supreme Court as the ICAC’s delegate, but because of the delays, was provided to current Chief Minister Lia Finocchiaro, rather than Mr Riches’s plan to hand the report to then-Labor chief minister Eva Lawler, which she was under no obligation to release publicly.

Aside from the inappropriate use of taxpayer money for party political activities by staffers, the report also highlighted delays by the Office of the ICAC investigating the overall matter, including that it had received a report alleging misconduct in February 2021, but that Mr Riches did not properly start an investigation until 10 months later in December 2021. Those delays proved costly in holding anyone accountable, the report found.

For reasons unexplained, Mr Riches initially asked Mr Gunner to investigate his own staffers for the alleged misconduct in November 2021, giving him three months to respond.

Mr Gunner responded in February 2022 – more than a year-and-a-half after the misconduct was alleged to have occurred – that the three staffers accused of misconduct were not public servants, but rather “ministerial officers” and held to a different code of conduct, which he claimed they had not breached.

However, he appeared to have referred one staffer, separate from the three alleged, back to the ICAC as having breached the “spirit of the code of conduct for ministerial officers” by engaging in political work while being paid for government work.

Mr Riches’s investigation, the report shows, slowed to a near standstill by May 2022 after interviewing witnesses in relation to the suspicious travel and only deciding then to investigate Mr Gunner’s staffers’ misuse of taxpayer resources in the months leading up to the 2020 election. The investigation into that and the misuse of public funds for travel during the caretaker period rolled into 2023 and then into 2024 while the “process of extending procedural fairness continued”.

“The evidence gathered in the course of the investigation establishes clearly that, prior to the 2020 NT election, officers within the OCM [Office of the Chief Minister] did engage in campaign activities for Labor NT and on occasions utilised NT government resources for that purpose within usual office hours,” Mr Chaney wrote in the new report.

He found that responsibilities were “blurred” and that the “lines of reporting and supervision” were unclear with the “director” of the digital unit, understood to be former social media lead Abi Rajkumar, paid by taxpayers and requested to carry out “political work by various people and reported to various people”.

He also found while the requirement that campaign work be carried out in a staffer’s own time, the evidence of how that occurred was “inconsistent”.

“Although the evidence gives reason for concern that some officers in the OCM may have acted improperly…It is not possible on the evidence to be satisfied, to the required standard, that any finding of improper conduct should be made in relation to any individual,” Mr Chaney wrote.

The report found that a year out from the 2020 election, Mr Gunner’s office hired a new deputy chief of staff – previously reported to be his brother-in-law Ryan Neve – to provide general oversight of communications in the OCM, including the “digital unit”, with then-director of communications Maria Billias “exercising day-to-day oversight”.

Ryan Neve also served as “a conduit between the chief minister and NT Labor”.

Press secretaries reported to various ministers, as well as to the digital unit, which was comprised of four ministerial staffers, including director Abi Rajkumar. The other three “had a specific role within the unit based on their technical skills and experience”, Mr Chaney wrote, including one tasked with creating graphics with Photoshop, another responsible for filming and photography and another providing “administrative support”.

The report found that witnesses who provided evidence to the ICAC accepted that all ministerial staffers “well understood” the ministerial staff code of conduct, including the “constraints on the use of government resources for party political campaign purposes” and the need to “manage public resources effectively”, as well as to “act in the public interest and abide by ethical principles”.

“One of the communications officers could not remember whether there was a code of conduct for ministerial staff but said it was communicated to him that work done for a political party was to be done outside work hours,” Mr Chaney wrote.

“He said that was communicated by a senior officer to him and others at a forum early in the 2020 campaign, but he felt that ‘this was a little bit of a cover – trying to cover their own backs’.”

Another staffer claimed Mr Neve told her that work done for the Labor party needed to be done outside working hours, “while on leave, or while using time in lieu”.

That did not occur.

“…The activities [undertaken by the staffers] could be seen [through emails] to have been undertaken in normal office hours; in other words in a time period when the officer concerned was being paid from the public purse,” Mr Chaney wrote in the report, adding that the staffers claimed they had worked “very long hours” and that the party work was done “before or after normal working hours or on weekends, or was done during lunch or other breaks in the working day”.

“In light of the passage of time between the activities concerned and the giving of evidence in late 2022, and in the absence of any time recording or other records of the day-to-day activities of the officers, it is not open to be satisfied to the required standard that any particular activities amounted to improper conduct.”

It was not explained in the report what “standard” was being applied in determining the threshold for misconduct.

However, Mr Chaney found that there was evidence that the code of conduct for ministerial staffers was given “insufficient regard in the lead up to the 2020 election” and the role of ministerial staffers was “somewhat blurred”, including when Ms Rajkumar produced a document titled “chief minister’s digital plan 2020 election” in January 2020 – eight months out from the election – which outlined what everyone’s role was for the election campaign and who to talk to “if they needed guidance”.

The digital plan required all digital unit members to participate in political planning and creating “at least three posts per day” for Facebook and offered suggestions for unit members who became “bored”, including tending to the photo library, finding an “amazing Territory story we can film and tell”, as well as door-knocking.

A witness claimed that although those tasks were in a 2020 election campaign document, they equated to normal government communications.

Mr Chaney said further examples of party political work included using government resources to produce Labor candidate videos by the digital unit, that was “uncontroverted evidence” of political campaign work done during “work time”.

The digital unit also digitally produced NT Labor Party policies, the report found, which was “clearly party political work…during work hours”.

But Mr Chaney said it was impossible to determine overall what political work was done outside their 37.5 hour work week.

Mr Gunner repeatedly contended, in 2022 and again in March 2024, that ministerial staffers were distinct from the impartial public service and as such were not breaching any rules.

Mr Chaney referenced other jurisdictions’ problems in determining the extent of misconduct given the blurred lines of ministerial officers, including in WA where a CCC investigation could also not ascertain what government functions ministerial staffers did “outside the normal working day” to make up for all the party political work they did during the day, again citing the lack of time sheets and the “absence of adequate supervision”.

In conclusion, Mr Chaney reiterated that in the months leading up to the 2020 NT general election, staffers in the OCM “performed political work within normal office hours and while being paid from the public purse” and that government resources were used in the production of their work, as well as staffers’ own equipment and “utilising private email addresses”.

But he wrote that while some staffers “may have acted improperly”, it was impossible on the evidence provided to make any findings of improper conduct against any individual and that given the “passage of time” and the fact those involved no longer hold those roles, “the utility of any findings of improper conduct is at best questionable”.

What next?

Mr Chaney made four recommendations to Chief Minister Lia Finocchiaro, including a review of the staff code of conduct and the ministerial staff code of conduct to “more explicitly” prohibit using public resources for party political work; that an induction program for ministerial staff be administered by an outside body to include instructions about party political work on government time; that staffers complete timesheets for at least 60 days ahead of an election indicating where their time is spent; and that ministers and the Leader of the Opposition commit to ensuring their staff only undertake political work outside ordinary business hours or while on leave.

Ms Finocchiaro said in Parliament on Thursday that her government accepted all four recommendations and has updated the ministerial staff code of conduct to reinforce “transparency, accountability and integrity”, adding she has referred the recommendations to the Remuneration Tribunal for proposed amendments to codes of conduct for electoral staff as well.

Ms Finocchiaro added the latest report revealed “some disturbing details” about Mr Gunner’s office leading up to the 2020 election.

“In a democracy, Territorians expect all political parties to be given a fair go leading up to an election,” she said. “The report shows Labor had an unfair advantage in the 2020 election. This can never happen again.”

She added in Parliament that Territorians have been waiting for the two ICAC reports for years.

“Neither report one or report two made any findings against any individuals, which I have no doubt Territorians will find incredibly disappointing,” she said.

Labor Leader Selena Uibo said her party also accepted the report’s recommendations and distanced her party from Mr Gunner.

“We will learn from mistakes made by previous leaders and never want to see them repeated,” she said in a statement.