Secret recordings of private conversations by anti-corruption investigators were "entirely inappropriate" and a "breach of trust", but the inspector of the Northern Territory's integrity body has been unable to determine whether the law was broken.
Earlier this year, it was revealed staff within the Office of the NT Independent Commissioner Against Corruption (ICAC) had conducted bugging operations on seven people who had no idea they were being monitored.
One of them was former CLP opposition leader Gary Higgins, who was not under investigation and had been asked by ICAC staff to provide background information relating to a case.
The subject of another secret recording was a businesswoman who had been invited by an ICAC officer to an informal chat at a Darwin café that was remotely monitored without her knowledge.
The bugging operations were undertaken during the tenure of former ICAC boss Ken Fleming, who retired in the middle of last year.
After becoming aware of the issue earlier this year, his successor, Michael Riches, condemned the practice, issued an apology, and referred the matter to the ICAC inspector, Bruce McClintock SC.
Mr McClintock's findings in relation to the matter have been included in his latest annual report, which was tabled in the NT Parliament on Wednesday.
"The conduct in question was entirely inappropriate and unfair and should not have occurred," he wrote.
"It represents a serious breach of trust towards those people who were unknowingly recorded."
Under the NT Surveillance Devices Act, ICAC officers are allowed to secretly monitor or record a private conversation they are not a part of if they have a warrant, or if:
- the action relates to their duties
- at least one party has consented
- the officer reasonably believes it is to protect someone's safety
In his report, Mr McClintock said the first two elements were met, but it was "unclear" whether the third element was satisfied.
"That is an issue that I am unable to determine, because it involves questions of the state of mind of the relevant ICAC staff at the time the conversations were monitored and I have no power under the ICAC Act to compel such persons to respond to any enquiries I might make."
He said the ICAC staff involved in the covert recordings had since left the office and that Mr Riches had taken "adequate and appropriate" steps to ensure such conduct does not occur again.
Darwin Turf Club investigation criticised
In his report, the inspector said he was "generally satisfied" with the overall performance of the ICAC throughout the financial year.
However, he said he took a "different view" about matters that occurred before Mr Riches joined the office.
These included the ICAC's investigation into the handling of a $12 million government grant for a new grandstand at the Darwin Turf Club.
The probe was the most significant conducted under Mr Fleming's watch, and led to adverse findings last year against five individuals, as well as the club's board.
But after the Supreme Court earlier this year found one of the individuals had not been offered procedural fairness, Mr Riches decided to permanently remove from the ICAC's website a public statement detailing the investigation.
"It would be difficult to assess the conduct of the DTCI investigation as satisfactory," Mr McClintock concluded.
However, he noted that Mr Riches had "clearly addressed the issues thrown up … and I assess the likelihood of similar issues arising as low."
He also said in the future, it would be preferable for the ICAC's public statements about its investigations to be limited to "short summaries" to ensure they are in line with the provisions of the ICAC Act.
Mr Riches this week told the ABC he expects to finalise several investigations before the end of the financial year.
"Whether I make a public statement about an investigation, and the content of any public statement, will be a matter that I consider at the appropriate time," Mr Riches said.
"I have raised the limitations associated with the existing legislation with the government, the opposition and the Standing Committee on the ICAC.
"It is a matter for parliament what, if any, changes are made to the ICAC Act."
