Matt Cunningham: Full, independent inquiry into Ken Fleming’s tenure as Commissioner needed

There should be a full, independent inquiry into Ken Fleming QC’s tenure as the ICAC commissioner, writes MATT CUNNINGHAM.

AS damning as this week’s report by ICAC Inspector Bruce McClintock SC into the NT’s anti-corruption watchdog is, it lacks the context to explain what really went on during a few crazy weeks in June last year.

Mr McClintock found former Commissioner Ken Fleming QC breached the ICAC Act and engaged in unsatisfactory conduct when he made a last-minute decision to insert an incomplete text message sent by former NT News editor Matt Williams to Darwin Turf Club chairman Brett Dixon into his report into the DTC grandstand grant.

According to McClintock’s report, the ICAC erred when it tried to capture the message, altering its meaning.

Mr Fleming put it in the report anyway, without giving Mr Williams an opportunity to respond. Had he done so, Mr McClintock found, there was no way the message would have been included.

It’s more often cock-up than conspiracy when a scandal erupts; in this case it was both.

But what prompted Mr Fleming to do this?

The best possible answer to that question starts with a column published on this page on May 29 last year.

It was the same week the ICAC had been forced to apologise to two women and withdraw a report after failing to afford them natural justice during an investigation into allegations of corruption with the Darwin Council.

The column suggested the ICAC had become a shambles and questioned if it was doing more harm than good.

Little did we know the can of worms this would open.

We were soon contacted by several whistleblowers wanting to expose what they saw as completely inappropriate conduct happening within the Office of the ICAC.

There were allegations of bullying, intimidation and harassment and retribution for those who dared speak out.

Ken Fleming QC. Picture: Keri Megelus

But perhaps most troubling was the fact the ICAC had awarded external investigation contracts to former South Australian policeman, David McGinlay, who also happened to be the boyfriend of the ICAC’s Director of Investigations Kate Kelly.

Here was an organisation set up to investigate corruption, cronyism and nepotism within the Northern Territory’s public service handing out lucrative contracts to someone very close to home.

If that wasn’t a bad enough look, further questions were being asked about the background of the man who was getting the jobs.

Mr McGinlay had resigned from the South Australian police force in 2003 while under internal investigation for serious misconduct, which was never substantiated.

He’d also been accused of intimidating witnesses when he worked for the Wood Royal Commission into police corruption in New South Wales in the 1990s.

A subsequent police investigation made no findings of wrongdoing against Mr McGinlay.

If Mr McGinlay had applied for one of the full-time staff positions being advertised in late 2020 would he have passed the background checks?

Was this the reason he was hired as an external contractor instead?

These were all questions we put to the ICAC as Sky News and the NT News published as series of investigative stories on this issue that has since prompted a special police investigation codenamed Operation Hundt.

The first article was published on June 15 last year.

The reaction from Mr Fleming was fierce and swift.

Appearing before the Parliament’s Budget Estimates Committee he attacked and effectively identified one of the whistleblowers and threatened to haul me before a closed hearing to give up my sources.

But his fury didn’t stop there.

A few days later he made a public statement saying he would respond to our reporting “at the appropriate time” and that he hoped the NT News was pursuing the matter with “legitimate journalistic purpose”.

I can say for the record we were.

I’m not sure the ICAC could say there was any legitimate purpose to its subsequent actions.

On June 21 NT News general manager Greg Thomson received a phone call and subsequent email from ICAC deputy chief executive Matthew Grant.

The email raises for the first time the (incomplete) text message between Mr Williams and Mr Dixon, then makes a link to the newspaper’s reporting on issues within the ICAC.

“We have noticed intense criticism of the ICAC, across a number of fronts by the NT News in the lead up to the release of this report,” the email says.

“We do not comment on the NT News’ right to hold us to account, but the level of reporting on government agency including front pages seems incredibly high.”

According to News Corp’s complaint to Mr McClintock, Mr Thomson was given the impression the reference to Mr Williams’ text message in the forthcoming Darwin Turf Club report was an act of retaliation by the ICAC for its reporting of allegations of misconduct within the ICAC office.

To his credit, Mr Thomson did not share this communication with editorial staff, and the newspaper continued to publish stories relating to Ms Kelly and Mr McGinlay.

Thanks to Mr McClintock’s latest report, we know the ICAC held a meeting on June 24, the day before it released its report into the Darwin Turf Club, where a last-minute decision was made to insert the incomplete text message into the report.

This appears to have been an act of retribution for a newspaper doing what newspapers should do; holding the powerful to account.

Bruce McClintock. Picture: NCA NewsWire / Gaye Gerard

The ICAC’s treatment of the NT News and its editor was a disgrace.

But its treatment of its own staff may have been worse.

In a report that cleared the ICAC of wrongdoing over the contracts awarded to Mr McGinlay, Mr McClintock noted he had received a series of complaints from ICAC employees alleging workplace issues.

The workers described a culture of “bullying and intimidation” and said they feared “retribution” for speaking out.

Mr McClintock said the matters had been referred to the Office of the Commissioner for Public Employment, Vicki Telfer.

It’s not clear what action, if any, she has taken. (In response to questions sent last July, a spokeswoman for Ms Telfer said: “The OPCE doesn’t comment of grievances that come to the office.”)

But there are good people whose lives have been turned upside down, their careers destroyed and their reputations tarnished by an organisation that was supposed to “restore integrity” in the Northern Territory.

New Commissioner Michael Riches won’t address issues that predate his appointment. He prefers to focus on the future.

But the actions of those in the past have done irreparable damage.

There should be a full, independent inquiry into Mr Fleming’s tenure as Commissioner.