Former ICAC boss Ken Fleming dismisses ‘bad faith’ accusations in Milingimbi School probe

Former corruption chief has claimed he is not “personally responsible” for a remote schooling rort investigation he signed off on.

UPDATE FRI WED MAY 20: A FORMER corruption chief has claimed he is not “personally responsible” for a remote schooling rort investigation he signed off on.

Former Independent Commissioner Against Corruption Ken Fleming faces a potential $3m lawsuit over an 18-month investigation into Milingimbi School funding.

Former principal Jennifer Lea Sherrington has accused Mr Fleming of acting in “bad faith” by publishing the report in July 2021, which alleged she falsified thousands of attendance records to secure $1.4m in additional funding and diverted $507,796 in school funds for her own personal use.

Ms Sherrington’s barrister Trevor Moses alleged in the Supreme Court the ICAC investigation was marred by “mistake after mistake” and Mr Flemming was driven by personal motivations to rush to publish the flawed report “to the world”.

Ms Sherrington is seeking a declaration from the court that the report was unlawful as well as general, aggravated and exemplary damages, interest and costs.

Over a two-day hearing Justice John Burns considered the application against the ICAC and Mr Flemming.

Senior counsel Stephen Free said there was a high threshold for the “extraordinary allegation” against the former ICAC boss.

Mr Free said not only did it have to be proven that Mr Fleming knowingly or recklessly published misinformation, but he was also intimately involved in the entire ICAC probe.

“(Bad faith findings) are rare and extreme,” he said.

“Irrationality does not in itself demonstrate bad faith. Bad faith is not to be found in poor decision making.”

Mr Free said it was an “extraordinary allegation” to accuse the corruption watchdog, particularly as the investigation itself was done by a “delegate” of his office.

“The allegation that the publication was in bad faith because he knew it was false falls away,” he said.

This is despite Mr Fleming signing off on the public statement and report alleging Ms Sherrington was involved in fraud and corruption.

Mr Moses accused the ICAC boss of being “fully involved throughout” the investigation and critically published the “salacious” report.

“We (are) going to the person who ultimately exercises the power and says to the world ‘this is the report of what this office which I am head of has found’,” he said.

Mr Free denied there was a “rush” to publish the report by then outgoing ICAC commissioner and Ms Sherrington was provided enough time to address the allegations in the 18-month investigation.

He said corruption investigations were “notorious” for their secrecy but needed to be a “tightly-controlled exercise” to be effective.

But Mr Moses told the court her defence was not investigated. 

“She told the ICAC exactly who to talk to, she provided the ICAC emails supporting her version of events, she told them where they would find the evidence they need,” he said.

But Mr Free said her defence was just not believable.

“The difficulty for Ms Sherrington is that in carefully weighing her explanations against the weight of the evidence, her denials simply cannot be believed,” Mr Free said

“(It’s) not being denied an opportunity of being heard, but simply being unable to persuade.”

But Mr Free said the purpose of an ICAC investigation was so it could be referred on to other organisations and therefore did not need to meet the “gold standard” of a judicial report.

Mr Moses condemned the choice to selectively anonymise people within the report, with only her family named in the investigation.

Ms Sherrington was accused of using personal expenses on behalf of family and hiring relatives who were under-skilled and overpaid.

“There is a deliberate decision to anonymise the names of some people … but when it comes to her family (there is) gratuitous criticism of how they go about their job,” he said.

“The only thing linking them was that they relate to our ‘villain’ Ms Sherrington.”

Mr Free denied there was any “malice” in naming people in the report.

“There is nothing extraordinary about this, it is a prevailing practice to use in investigation reports,” Mr Free said.

Justice John Burns will consider the application to move to trial, with a decision to be handed down at a later date.

INITIAL THURS MAY 19: A REMOTE school principal has alleged the independent Commissioner Against Corruption “cast her as a villain” in his quest to produce salacious reports in the final days of his office.

Jennifer Lea Sherrington is attempting to sue ICAC and the former Commissioner Ken Fleming for $3m accusing them of “acting in bad faith” while investigating an alleged $500,000 rort while principal of Milingimbi School.

Her barrister Trevor Moses told the Supreme Court on Thursday that a “rushed” corruption investigation denied Ms Sherrington her “natural justice” by not giving her a reasonable opportunity to respond to the allegations.

The court heard Mr Fleming released an investigation into the remote principal in July 2021, following an 18-month joint investigation with the Education Department.

He alleged Ms Sherrington falsified thousands of attendance records in a bid to secure $1.4m in additional funding. It also alleged she diverted $507,796 school funds for her own personal use, including travel and accommodation, car hire for personal shopping and fine dining for herself and her family and friends.

At the time Mr Fleming claimed “Ms Sherrington was not in the business of education; she was in the business of manipulating data and herding children to be at school on ‘census’ days”.

On Thursday Mr Moses said there was no real attempt to determine the truth, that the ICAC Act was not followed and Mr Fleming was driven by “personal motivations” to publish the report.

Former Northern Territory ICAC Commissioner Ken Fleming. Picture: Supplied

Mr Moses said despite Ms Sherrington working with investigators; “there is no evidence those people were spoken to, no evidence that documents were considered or read and we simply have allegations against her dismissing everything she said”.

He also said there was no attempt to understand the complexities of remote school attendance, and the “catch-22” principals face when assessing attendance. Even a two-week extension to respond to the 18-month investigation was denied.

Mr Moses alleged the then-outgoing Mr Fleming was in a rush to publish the “salacious“ report after announcing his resignation after months of controversy.

“He’s under the time pressure, he’s got a public-relations nightmare,” Mr Moses said.

“He needed a villain and he needed it to be sensationalist.”

Ms Moses said the “rush” to publish meant the serious allegations of criminal corruption and fraud were not properly tested.

“Mistake after mistake, after mistake — at a point that begins to be evidence for which inference can be drawn that there is no attempt to comply (with the ICAC Act),” Mr Moses said.

“(And) Fleming was involved in each of the steps along the way.”

Justice John Burns will continue to assess if Ms Sherrington ’s claim should move to a trial.

The hearing will continue on Friday with a response from the ICAC.

Originally published as Former ICAC boss Ken Fleming dismisses ‘bad faith’ accusations in Milingimbi School probe