‘The evidence of other witnesses, including Katy Haire’s, which denies key claims made by John Green, but fails to show the evidential worth of those denials, leaves some of those witnesses in unhappy positions. How is one to assess their truthfulness or otherwise?’.

Legal columnist HUGH SELBY worries about what he’s hearing at the ACT Integrity Commission’s public hearings into the the tender for building works at Campbell Primary School. 

IT’S a feature of some American civil litigation that before a trial each side examines the opponent’s witnesses. This usually takes place privately in lawyer offices. The process is called “Taking Depositions”.

The result is that much, indeed most, of the likely evidence is known to the parties before the trial at which a jury decides the issues. What’s new to the jurors is not new to the parties.

The Integrity Commission’s public investigation into the Campbell Public School tender “stuff up” has some similarities to the deposition process. 

Those of us watching and listening are like those jurors: passive observers to a pre-worked script. The key witnesses have already been examined in private session (akin to the taking of a deposition) so they and the Commission staff are familiar with a shared version of events.

The story so far

The following had been shared with we watchers before the Director-General of the ACT Education Directorate, Katy Haire, gave her public evidence on Friday:

1. Manteena presented the better design and cheaper cost; 
2. Manteena should have been awarded the contract;
3. When the first tender evaluation team completed its work a senior, experienced officer, known by the pseudonym John Green, believed that – based on spoken information he had heard from the Education Minister’s chief of staff Josh Ceramides, an acting director-general of the directorate and the director-general, Ms Haire – Manteena was not to get the contract;
4. Education Minister Yvette Berry gave evidence that she did not seek to influence the tender process;
5. Mr Green shared aspects of what he had been told with team members;
6. Thereafter, Mr Green took steps to delay the decision process;
7. The usual expectation would have been that he made the decision as to what company would get the contract;
8. In this, unusual case, the delayed, wrong decision was made by the director-general; 
9. Both construction union (CFMEU) officials – Zachary Smith and Jason O’Mara – and Mr Ceramidas did not like Mr Green, reflecting a dissatisfaction with his past approach as the registrar for the Registrar for the Secure Local Jobs Code, which was intended to ensure work and safety on building sites;
10. No evidence has been heard suggesting Mr Green had any reasons to make up what outcome he says he was told to achieve (that Manteena would lose the tender);
11. There has been no evidence that Mr Green had any hostility towards Manteena;
12. A Ms Young, a member of the first tender evaluation team, made her justifiable concerns about the extended evaluation process known to Mr Green, then to the head of Major Projects Duncan Edghill, and finally – nothing having been done to fix the issues – to Manteena.
13. Chief of Staff Ceramidas submitted a written statement. We were told that he expressly denies any wrongdoing. We have not been told if it was sworn or unsworn. We have not been told if he has been questioned in private session.
14. At an earlier inquiry by the ACT Auditor-General about this tender fiasco Mr Green told lies.
15. As acting director-general (while Ms Haire was on leave) Ms Cross made a hand-written note about various building projects which includes this line: “Campbell – 2- both unhappy” (with a line drawn through “unhappy”).

 Ms Haire’s responses

Director-General of Education Katy Haire, was questioned all day Friday. Counsel assisting Callan O’Neill used a timeline approach, so much so that I thought this was her first questioning. 

That was until, out of the blue, late in the day, he dropped the information that Ms Haire had been questioned in private session in February.

Let me pithily sum up Ms Haire’s Friday evidence: 

• she denied telling Mr Green that Manteena was not to get the contract; 

• she denied being given any instruction along those lines from the Education Minister’s office; 

• she took the view that Lend Lease was the better fit against the government’s work and safety policy, despite that issue being specifically covered in the tender evaluation report; and, 

• she took full responsibility for a number of errors in the manner in which she considered and responded to the tender materials that she had before she made the decision that Lend Lease was to be awarded the contract. 

Quite properly we were reminded that she was new to the job, with no prior experience of ACT procurement work, that these decisions were being taken during the worst times of covid, that contact among staff was limited because of “work from home” necessity, and that some of her work around this contract – involving perusal and understanding of lengthy documents – had to be done on a laptop when she was away from Canberra.

She did not fall on her sword, but she cut herself more than once. 

She did not waver. She did not prevaricate. Like every other witness she could credibly claim that the passage of time entailed that she could not remember some correspondence or what was on her mind at the time.

Her account saves others from embarrassment or worse. I hope they are appropriately grateful. But, and it’s a big “but”, it does nothing to undermine the believability of Mr Green’s account, despite his being an admitted liar to the Auditor-General’s inquiry. His account still hangs together.

 We lost a day in our lives

The Commission already had all the information gathered from documents and the earlier public and private sessions (including Ms Haire’s private session in February). 

Her public interrogation did nothing other than follow a timeline approach. It was repetitive. It took boredom to a new level. It failed to test her and her account. It was a waste of time. 

Investigators are taught that to ask questions that follow a timeline is a good way to be thorough when gathering evidence. 

However, as more evidence is gathered and cross-checked, it is appropriate, even necessary, to leave behind a strict “timeline approach” and become more focused upon those parts of an event about which there are differing, even incompatible, versions from different witnesses. 

To put this another way, witnesses should be confronted with issues when it is clear that a choice will have to be made about which version is to be preferred.

As an aspect of being fair, it is also good practice for the questioner to explicitly tell a witness: “I am now going to question you about ‘such and such’ topic. Please bear in mind that I have already asked these or similar questions to another/other witness/es”.

What should have happened on Friday was Ms Haire being pressed on stated and tactically ordered topics. 

To share one example, an obvious one: it was known by March 2020 that two teams had preferred Manteena for sound reasons. 

There’s an email from Mr Green to Ms Haire in late March that the decision was about to be made. There’s also an email to her that month from Major Projects that mentions “sensitivities”, a word that is unexplained and about which she made no inquiry.

But she didn’t make her decision favouring Lend Lease until June, having decided to be the decision maker in May. She couldn’t explain why she became the decision maker. Put another way, she didn’t explain why Mr Green did not make the decision. 

Mr Green gave us an explanation. It was not rebutted. She did concede that the Chief of Staff, Mr Ceramidas, told her that the Code provisions, “are more important than ever”. 

She didn’t recall saying to Mr Green (late May, into June), “That’s not what the minister’s office wants”. This response was not a denial: it sits oddly with the strength of earlier denials as to that office’s involvement.

We have been repeatedly told that the government, as part of its covid response, wanted full speed ahead on building projects. So, why the delay?

Here’s another example where better, targeted questioning may have produced real results: she explained how she understood that the government was committed to the Code. So far as any rationalisation can be found for her decision, it is her commitment to making the overarching criterion for the award of the contract what she thought was government policy with respect to that Code. All well and good. 

However, she is an experienced, top public servant. Procurement policy is to be found in a statute. Its implementation is well understood in the Major Projects department and by officers such as Dylan Blom and Mr Green in her directorate – to whom she had ready access.

There was to be a multi-million dollar building project at Campbell Primary. On what basis of good governance can she make a decision contrary to the express findings of two expert committees whose expertise she did not have?

To fall back on the notion that the committee reports were just “recommendations” doesn’t cut the mustard.

Education is her area of expertise. Value for money within that space is her concern. Industrial relations and work and safety are not her expertise. How then did she come to make a decision on matters so obviously outside her expertise and her responsibility? 

Repeatedly she denied any instruction from the minister’s office. So, why was that glaringly wrong decision at that time? A frolic on her own – in her position?

If any of that has been asked it has not been shared with the public watchers.

Do it better, much better, next time

Our Integrity Commission has been operational for some years. This is their first foray into public hearings. It’s a welcome step. However, as explained in an earlier article the statutory scheme for such hearings is so flawed that it needs to be reworked.

Moreover, the Commission needs to consider the functions of public hearings, to be explicit about them, and to consider how to achieve their aims.

People who are watching these hearings do so in good faith. Like jurors they expect to be a part of a credible process of open justice. 

They ought to be told, at the start of each day, and during the day the agenda of topics. Witnesses, too, will benefit from such explicit sharing of topics and the order in which they are to be addressed.

It is misleading to not state when a witness is called whether that witness has already answered questions in an earlier session/s, be that private or public.

At the end of Friday’s session I was troubled by the lack of a proper response, or any real testing by any counsel for any witness, of Mr Green’s evidence. Bare denials, in the limited context of a timelines-driven taking of evidence, amount to little. At the end of the day his account is largely unchallenged.

From that it follows that the evidence of other witnesses, including Ms Haire’s, which denies key claims made by him, but fails to show the evidential worth of those denials, leaves some of those witnesses in unhappy positions. How is one to assess their truthfulness or otherwise?

I am troubled too by the paucity of questioning techniques being employed in these hearings. I hoped for better. I expected better. I hope that the Commission, like Ms Haire, can take useful lessons from this saga and do much better next time.

Commission’s ‘public examinations’ need some work