It gets curious and curiouser as the ACT Integrity Commission continues its public examinations into how and why the tender for building works at Campbell Primary School was not given to the recommended tender applicant, local firm Manteena, but instead went to Lend Lease. On Friday it started to get very ‘Alice in Wonderland’ to legal columnist HUGH SELBY.

Alice in Lewis Carroll’s “Alice’s Adventures in Wonderland” says: “Curiouser and curiouser… Good-bye, feet!” (for when she looked down at her feet, they seemed to be almost out of sight, they were getting so far off).

 “Oh, my poor little feet, I wonder who will put on your shoes and stockings for you now, dears? I’m sure I shan’t be able!” 

AFTER Friday’s comings and goings at the Integrity Commission’s public examination in Operation Kingfisher, Alice’s remarks linger in my mind. Whose feet are going in what directions?

The “this way and that” of today’s evidence upsets any notions about the pursuit of truth being simple. 

Worse, although it is all too clear that something went awry in the awarding of the Campbell Primary School contract, who – single or plural – was/were responsible may be beyond proof.

An ominous sign was the repeated use in questions, asked after an answer, “I don’t remember” of, “Would it be possible?”. Oh dear, Oh dear. 

The mere possibility that something was said is not evidence that it was said, nor is it evidence that it was not said. It is not evidence at all.

Good advice to any advocate when they hear themselves uttering the word “possible” is to bite their tongue, withdraw the question, reflect, and start again.

Why would minister raise the Code with an acting head?

Ms Rebecca Cross, a senior ACT public servant, was acting Director-General of Education during about three weeks of leave of the substantive head in late February, early March 2020.

She gave her evidence on Friday afternoon. I am describing her evidence first because, on its face, nothing untoward is sticking to her.

She recalled a meeting with the Education Minister Yvette Berry and her chief of staff, Josh Ceramidas. 

The discussion was about ensuring that the Secure Local Jobs Code [the Code] was applied to building works undertaken for Education. She remembers being shown at that meeting a media article that discussed some companies that it was alleged were not complying with the Code. She does not recall the names of those companies.

Following that meeting she spoke to (an earlier witness) John Green (a pseudonym to protect his identity) who explained how the Code worked (as the former registrar for that Code he was well placed to explain it).

In his earlier evidence Mr Green asserted that after that meeting Ms Cross had told him of the chief of staff making it clear that local building company Manteena was not to get the Campbell Primary School.

Ms Cross had no recollection of the chief of staff saying that. She was clear that no one had “directed” her that Manteena was not to get the work. Had that happened, she said, she would have reported it to the head of the Public Service because such a direction would have been inappropriate.

What a nice, measured way to put it. More robustly, such a direction would be wholly improper: why have a Procurement Act if it can be got around by a simple direction?

Ms Cross gave her evidence thoughtfully, clearly and credibly. If one had to choose between her recollections and those of Mr Green how would one approach the task?

On the one hand, we know that Mr Green used not one but two tender assessment teams, both of which favoured Manteena. Thereafter, and with no evidence that he had any skin in the outcome, he wrote a briefing that led, apparently, to the contract being awarded (at greater cost) to Lend Lease.

We are yet to hear from the department head who implemented that briefing and, who – says Mr Green – was the decision maker. No evidence suggesting why Mr Green would, on his own initiative, up end the probity of the tender process has been shared with us.

We do know, though it was shared with us only in the final questions to Mr Green by counsel assisting Callan O’Neill, that Mr Green lied under oath to an earlier inquiry.

There have been no suggestions that Ms Cross has lied, been evasive, or been anything other than as frank as she can be.

But it is puzzling as to why the education minister and her chief of staff would call an acting head to discuss the implementation of the Code. The Code is an industrial relations matter. The acting head was not going to sign off on any major commitments. The weightings in the tender process included attention to tenderer certification under the Code. There was no suggestion of irregularities in the tender assessment process. The meeting, as now best remembered by Ms Cross, seems pointless.

It is also a puzzle as to what the Commission is to make of Ms Cross’ handwritten note that she prepared for the handover briefing when the substantive head of Education returned from leave. 

There is this cryptic, puzzling line: “Campbell -2- both unhappy” with the word “unhappy” crossed through. Ms Cross simply can’t recall its meaning.

Oh, the expletives

Turning to the third intriguing puzzle of the day: the animosity of Berry’s chief of staff, Josh Ceramidas, to Mr Green. This is intriguing not only for its existence, but for the as yet unexplained reasons for it, and the lack of any questions or comment about it when Mr Green was giving his evidence.

The evidence of this animosity came out when counsel assisting was taking Education Minister Yvette Berry to a series of text messages sent by Mr Ceramidas to another political staffer.

Perhaps one day Mr Ceramidas will explain his reasons. During Friday morning it was stated by the Commissioner that: “Mr Ceramidas is not available to give evidence at present”. We, the interested public, know only that on Thursday his counsel, Samuel Pararajasingham, was able to submit a written statement from him. See Thursday’s article here.

Counsel assisting asked the minister what qualities she needed in her chief of staff. She needed, among others, loyalty, shared values and being able to deal with an ever changing environment.

In the close working relationship that must exist between a minister and their staff, she had to rely on her chief of staff’s judgement as to what he would or would not report back to her. This sets the scene for what followed as to her lack of knowledge about some aspects of Mr Ceramidas’ activities.

In particular, she didn’t know about his series of anti-Mr Green comments made in a succession of text messages to another political staffer. 

She did recall that he had expressed his frustration about Mr Green to her; however, he never brought an issue about Mr Green to her.

He was expressive, though limited in his expression, in his assessment of Mr Green in his text messages. It seems that Mr Green frustrated him so much that he was a “cunt”, seemingly for not respecting him sufficiently.

He went on to express in this series of texts: “If he [Mr Green] fucks up again (there will be consequences)”; and, that he (the chief of staff), “gave him a whole load of shit”.

In a later text the chief of staff raises with the other staffer whether Mr Green was “conflicted out” of being involved in the tender assessment because of his recent role as registrar for the Secure Local Jobs Code. The context did not reveal whether this was a question asked with pure or impure intent.

In the same week in February 2020, the two staffers were discussing by text a concept about the future role of Unions ACT in the government awarding of contract works.

What can be said about that is that the chief of staff’s interest in industrial relations was known to the minister.

What she didn’t know about was his text to his fellow staffer: “Mr Green might soon be proved to have fucked the wrong minister”.

Taken to her views about Manteena getting or not getting the contract she was firm that she never considered that question. 

Fair enough, but then why call Ms Cross to a meeting to discuss the Code being applied to Education projects? It was made very clear by the two CFMEU witnesses on Thursday that, in their opinion, Manteena, while certified under that Code, didn’t follow it.

Alice, I am sure, would have a headache trying to work all this out.

Public hearings resume on September 27.

When counsel lost control of the witness

“CityNews” legal commentator and former barrister Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.