New details about the secret recording of a prominent Darwin businesswoman by the Northern Territory's anti-corruption watchdog have emerged in court documents, which show approval for the controversial operation was neither sought from, nor granted by, former ICAC boss Ken Fleming.
Earlier this year, Mr Fleming's successor, Michael Riches, issued an apology to marketing agency boss Anya Lorimer after learning about the covert recording, which he has referred to the ICAC Inspector for further scrutiny.
The ICAC operation took place almost two years ago, when his predecessor's office was conducting a major investigation into the handling of a $12 million government grant for a new grandstand at the Darwin Turf Club.
Mr Fleming's probe led to findings of "improper conduct" against five individuals, as well as "unsatisfactory conduct" against the club's board.
Ms Lorimer was a board member at the time of the investigation, however she was not one of the five people adversely named in the ICAC report, which was released in June last year.
One of the five was former board member Damien Moriarty, who is currently contesting the adverse findings against him in the Supreme Court, which has released hundreds of pages of documents linked to his case.
In addition to the 25-page transcript of Ms Lorimer's bugged conversation, the documents also outline previously unknown details about the ICAC's secret mission to glean information from Ms Lorimer.
Secret recording took place at popular Darwin cafe
In September 2020, Ms Lorimer was invited by a senior ICAC investigator for what she understood to be an informal chat about the culture of the turf club, as well as previous comments she had made to the board questioning the grandstand project.
Unbeknownst to Ms Lorimer, every word of her conversation was being recorded by the investigator, who was carrying a listening device.
According to the court documents, Ms Lorimer was also being observed by three other ICAC staff members, one of whom was inside the cafe, and two who were outside.
At one stage, after being asked about her opinion of Mr Moriarty, she prefaced her comments by saying, "I'm not being recorded, but …"
In addition to discussions about the board, her conversation with the investigator touched on matters that were not relevant to the ICAC probe, including her family and her appearance on the TV show Shark Tank.
When details about the secret recording emerged earlier this year, Mr Riches said that while it was not illegal, he believed it was inappropriate under the circumstances, and he would not allow such conduct in the future.
Yesterday, Mr Riches told the ABC that warrants are not required to record a conversation to which a person is a party, even if the other person has not given consent.
Former ICAC boss only listened to part of recording, documents show
As part of the discovery process for Mr Moriarty's legal challenge against the ICAC, his lawyers asked a series of questions to the ICAC's legal team, including who approved the secret recording of Ms Lorimer.
"No specific approval was sought from or provided by the ICAC in relation to the use of this investigation methodology concerning Ms Lorimer," the ICAC's legal team responded.
However, the lawyers noted that Mr Fleming, as well as two other senior ICAC staff, "were aware of this investigation methodology, including the use of the observers".
According to the documents, the legal team also said Mr Fleming had also only listened to part of the audio.
"The then ICAC played the recording but turned it off part way through once he formed the view that there had not been anything of significance in the portion to which he listened and was unlikely to be anything of significance in the remaining portion of the recording," the legal team responded.
The ABC has been unable to contact Mr Fleming, who retired in June last year.
Ms Lorimer confirmed the veracity of the ICAC's transcript but declined to comment further, including whether she was considering legal action against the ICAC over the secret recording.
Mr Riches has separately referred another secret ICAC recording, involving former CLP opposition leader Gary Higgins, to the Inspector of the ICAC.
The Inspector, Bruce McClintock, has not responded to a request for comment.
The ICAC's findings are also being challenged in three separate court matters, including by two adversely-named individuals as well as the Darwin Turf Club itself.
