By RUSSELL GOLDFLAM
President, Criminal Lawyers Association of the NT
The political and legal cyclone which whirled in following the resignation of Northern Territory Police Commissioner John McRoberts on January 15 is still wreaking havoc: Mr McRoberts is now the subject of a criminal investigation for the serious crime of attempting to pervert the course of justice, and disciplinary proceedings are being instituted against another senior police officer, Commander Richard Bryson.
There has also been some extraordinary collateral fallout: the member for Araluen, Robyn Lambley MLA, has been banished to the backbench, apparently for her role in events which rapidly succeeded the departure of Mr McRoberts, culminating in the failed “coup” against Chief Minister Adam Giles. One thing, and perhaps only one thing, is clear so far: the fat lady hasn’t even walked onstage yet, let alone started singing.
Within days of the departure of Mr McRoberts, I called on the government to use its powers under the Inquiries Act to institute what has generally (but rather inaccurately) been referred to in the media as “a judicial inquiry”. In fact, such an inquiry is not carried out by a court, but, like a court, it is independent of government, and has the power to require witnesses to attend, produce documents, and give sworn evidence. It is the Northern Territory equivalent of a Royal Commission, and if one is held, a retired judge could be appointed as Commissioner.
I called for an Inquiries Act inquiry because I was deeply concerned that the McRoberts affair, involving as it does serious allegations against the officer at the very apex of our law enforcement system, has the potential to badly damage public confidence in the Northern Territory justice system. In my view, only an Inquiries Act inquiry would have both the independence and powers needed to effectively meet the challenge of restoring public confidence in the legal system.
Instead, the government announced at least three separate inquiries or investigations, to be conducted variously by the Solicitor for the Northern Territory, the Ombudsman, and the Public Interest Disclosure Commissioner (“the whistleblower Commissioner”). I, among others, was highly critical of this course, although, I hasten to add, I have not and do not suggest that any of the various persons assigned to undertake these three probes has behaved with anything other than propriety and professionalism. So, why was I so critical?
It was clear from day one that there was a possibility that the McRoberts affair, which we were informed related to alleged fraud in the administration of a government pensioner travel concession scheme, might turn out to involve not only senior police, but senior government officials, or even politicians. In those circumstances, it was crucially important that an inquiry independent of government be conducted.
Despite its name, the Solicitor for the Northern Territory is not a solicitor. It is, in a nutshell, the Northern Territory government’s in-house law office: it provides legal advice to the government, and its employed lawyers appear for the government in court when the government is a party to legal proceedings. Like any other lawyer, its boss, the Solicitor-General, Michael Grant QC, is required to act on instructions and to represent the interests of his client. And practically speaking, his client is the Northern Territory Attorney-General, John Elferink. Accordingly, the Solicitor for the Northern Territory is not independent of government. Moreover, legal offices are not equipped, designed or empowered to carry out complex investigations and inquiries.
The Ombudsman and whistleblower Commissioner, on the other hand, are both independent of government, and are both equipped to carry out investigations and inquiries. However, in my view neither of them was suitable to do the job required.
The Ombudsman Act establishes a close working relationship between the Office of the Ombudsman and the NT Police. This assists the Ombudsman, Peter Shoyer, to deal efficiently with complaints by members of the public against police. But in this case it was the Commissioner of Police himself who was the subject of the complaint, in circumstances where it was apparent that there may well have been divisions within senior ranks as to who had engaged in misconduct. What was needed was an inquiry conducted at arm’s length, and the Ombudsman’s office was, in my opinion, just too close at hand. The Ombudsman’s powers are also rather limited: he can only make recommendations, and his office only very rarely undertakes major inquiries.
As for the whistleblower Commissioner, Brenda Monaghan, she is independent of government and at arms-length from police, and she has the power to require potential witnesses to front up and answer her questions, but the scope of matters she can inquire into under the Public Interest Disclosures Act is limited to the matters the whistleblower (in this case, an as yet not publicly named police officer) raised with her. Like the Ombudsman, the whistleblower Commissioner can only make recommendations.
There has also been a suggestion that NT police themselves are conducting an investigation. While it is obvious that in the wake of this scandal the police need to take the proverbial long hard look at themselves, it is also obvious that the task of getting to the bottom of things can not be left to Northern Territory police alone.
Shortly after all these inquiries commenced, it emerged that they were affected and infected by the same purported ailment that had struck down Mr McRoberts: conflict of interest. Mr McRoberts had resigned on being accused of involvement in an active police investigation while maintaining a relationship with the person the subject of that investigation. If that accusation is made out, that would be an obvious conflict interest. (Mr McRoberts has denied the allegation, and is, like everyone else in our justice system, presumed innocent unless and until it is proved otherwise.)
Darwin being as small and tight-knit as it is, some of the proposed key investigators were obliged to step away because their own social and professional networks linked them to people they might have been called on to investigate. The Darwin media had a field day publishing sinister-looking webs charting the maze of relationships between everyone involved. This all tended to reinforce my view that the government should have brought in someone authoritative and independent from outside in the first place.
Because she was herself conflicted, Commissioner Brenda Monaghan engaged a former Deputy Ombudsman of Victoria, John Taylor, to undertake the whistleblower inquiry. Shortly afterwards, Cyclone John was upgraded to Category Five: Chief Minister Adam Giles, who had been out of the jurisdiction when Mr McRoberts had tendered his resignation to Acting Police Minister Chandler, returned from leave, and was given his marching orders by, among others, Attorney-General Elferink and Acting Police Minister Chandler.
As history records, Mr Giles didn’t accept those orders. One thing he did do on February 3, the day of the failed coup, was to assert, in tantalizingly vague language, that unnamed senior police and at least one government parliamentarian had conspired to have not only John McRoberts but also Adam Giles himself removed from office. Accordingly, the Chief Minister went on to announce, he would establish a “judicial inquiry” into the whole business.
I welcomed this announcement, because this was what I had been calling for myself all along. However, I didn’t hold my breath: after all, only recently, having announced that there would be an independent and wide-ranging inquiry into party political donations, the government had back-flipped and abandoned that idea. And indeed, once a settlement – of sorts – had been cobbled together between the coup-leaders and their intended target, Mr Giles made a series of statements in which he signaled a retreat from his sensational allegations of February 3.
So it was no surprise when on March 1 the Chief Minister announced that there would not be a judicial inquiry after all, at least for the time being. So, is this another backflip? Yes, it is. But I for one support this particular somersault, for the following reasons. The announcement was made in conjunction with the release of the whistleblower inquiry’s recommendations, all of which the government has committed to implement. One of those recommendations was that Mr McRoberts be investigated (by interstate police) for the crime of attempting to pervert the course of justice.
In my view, that investigation and any consequential criminal proceedings should be permitted to proceed unencumbered by a concurrent Inquiries Act inquiry, which would run the grave risk of prejudicing the chance of Mr McRoberts (and perhaps others) getting a fair investigation and, if he is prosecuted, a fair trial.
As I stated above, my primary concern from the outset has been the need to restore and maintain public confidence in our justice system. That concern will not be addressed unless we take every reasonable step to give all the people the subject of these serious allegations a fair go. To the extent that Australians do have confidence in our legal system, it is because we believe that it is robust enough to give everyone a fair go.
Some prominent legal experts take a different view, and have renewed the call for a judicial inquiry. I, however, agree with the advice given to the Chief Minister by the Solicitor-General that it is not presently in the public interest to proceed down that path. Once Mr McRoberts’ matter has been disposed of, a judicial inquiry may indeed be required, as the allegations made by the Chief Minister on February 3, which have been neither substantiated, elaborated on or unequivocally withdrawn, go right to the heart of our democratic system, and should – one day – be properly dealt with.
Of course, by that time, as Territorian cyclones usually do, Cyclone John will have probably petered out in the dusts of the desert, leaving behind its trail of destruction.
By RUSSELL GOLDFLAM