What happened when Leanne Cover asked the courts to suppress the Integrity Commission's adverse findings

An ACT Integrity Commission (ACTIC) investigation has found former CIT CEO Leanne Cover “guilty of serious corrupt conduct”.

But it’s a finding that could have taken many more months to see the light of day.

Region has confirmed Ms Cover is the person who made an application to the ACT Supreme Court to stop publication of the report. (This is known as interlocutory relief.)

Ms Cover’s legal counsel, Peter Horobin, asked the courts not to publish the report until there was a judicial review of the “processes and findings” in the report, arguing there had been a “denial of procedural fairness” by the ACTIC.

He said there was an additional letter between two unnamed people that Ms Cover hadn’t been made aware of early enough in the special report’s creation, the ACTIC had “misconstrued” the legislation that granted its powers, and that there was another person who should have been examined by the ACTIC.

“Essentially, we have a situation where a critical witness … has not been called,” Mr Horobin submitted.

“We think there have been errors [in the report] and we’d like the court to look at it.

“These are [all] legitimate arguments because of the absolute seriousness of the findings.”

Mr Horobin also argued the findings shouldn’t be released as they would then deny Ms Cover procedural fairness if it was found she could be pursued for criminal charges.

“It’s the classic case of the genie coming out of the bottle and us trying to put it back,” he submitted.

“There’s an inability to cure the damage these sorts of things can do … mud sticks.”

The special report found there’s no basis for criminal charges, but the investigation is ongoing.

Mr Horobin argued while it was a statutory requirement for an ACTIC report to be presented to the Legislative Assembly Speaker and published, a fairer approach would be for the report not to be tabled and instead have a court hearing as soon as possible.

“We have an individual dealing with a fairly powerful arm of the government, and this is why judicial review was created.”

If the application failed, Mr Horobin asked for suppression orders to be made over Ms Cover’s identity in the report.

The ACTIC’s barrister, Philip Walker SC, disagreed, arguing there were “significant issues of public interest” involved.

“These proceedings don’t just affect two parties … [nor] whether the Commission will suffer harm [but] if reports such as this into corrupt conduct are made public so it can be dealt with and people can know what goes on,” he submitted.

He argued there had been no errors of law in the investigation, that the extra witness didn’t need to be examined as the Commissioner had ruled they wouldn’t add anything further or change the outcome, and the Commission was legally obligated to produce the report.

The special report, including the adverse findings, was presented to Ms Cover twice for her to make rebuttals against them.

The Comissioner also wrote lengthy replies to her concerns and the deadline for responses was extended.

Chief Justice Lucy McCallum oversaw the hearings and remarked she didn’t think she’d ever seen such a “comprehensive response” afforded to someone who had adverse findings made against them.

Mr Walker also argued against suppressing Ms Cover’s name in the report, stating it was possible people could assume the report was about the wrong person.

In her decision on 25 June, Chief Justice McCallum said while she had grappled with the “genie out of the bottle” argument, it ultimately was right to dismiss the interlocutory relief application.

She said as she didn’t have a copy of the ACTIC’s special report (it was not tabled as part of the evidence), she couldn’t assess any alleged errors of law, but it was still possible for her to make her ruling.

Chief Justice McCallum found the ACTIC had given Ms Cover more than enough opportunity to argue her case against the adverse findings.

“In my experience of cases concerning the requirements of procedural fairness, even the fact of the provision of a response by the Commissioner to the plaintiff’s [Ms Cover’s] previous submissions is an unusual level of disclosure, let alone the comprehensive content of the comments provided,” she said.

Chief Justice McCallum also said the Commissioner had “plainly considered” Ms Cover’s arguments and the legal tests to be applied, and she’d also considered the public interest matter.

“I am not satisfied that the plaintiff has shown a sufficient likelihood of success to justify preservation of the status quo,” she said.

“Accordingly, the application is dismissed.”

She ordered the report not be handed to the Speaker until 4:30 pm on 27 June to give Ms Cover time to consider an appeal against the decision.

An appeal was not lodged, resulting in the special report’s publication.