The counsel assisting the ACT Integrity Commission in its investigation into the Campbell Primary School procurement has raised the possibility of "serious adverse findings" against public officials.
ACT integrity commissioner Michael Adams KC has been told the reliability of evidence from a key witness who has admitting to not telling the entire truth in a previous inquiry will be key to his findings.
The CFMEU's dealings with the Education Minister's former chief of staff were another key issue brought forward by the counsel assisting.
The commission began four days of public submissions on Monday to hear from lawyers for witnesses in the inquiry.
Counsel assisting Callan O'Neill began his public submission on Monday morning.
The evidence put forward by counsel assisting is not the view of the commissioner, who will be the ultimate decision-maker in determining whether any corrupt conduct took place.
Mr O'Neill said he had made six recommendations and he had raised the possibility of adverse findings.
"I would like to briefly note the role I see me as counsel assisting playing in this process where I have expressly raised in writing, albeit confidentially, the possibility of serious adverse findings against public officials," he said.
"It is my overriding role to provide notice to any person who may be the subject of an adverse finding with an opportunity to deal with it."
Mr O'Neill told the commission some parties had expressed concern at the fairness at the process. He said there had been nine submissions in response to his submission.
"On my review, other than attacking me as having engaged in rank speculation, failing to objectively consider the evidence of all witnesses and generally being incomplete, illogical and irrational. There does not appear to have been any significant criticism I could detect," he said.
But Mr O'Neill did say the responses made some valid contentions and he commended this to the commission. He said they should be taken as an "impassioned and rigorous defence of their clients".
The investigation
The commission is investigating whether Education Directorate officials failed to exercise their official functions honestly and impartially while handling the procurement process for the Campbell Primary School modernisation project between 2019 and 2020.
Under the tender process, companies were given the opportunity to express interest in the construction of the expansion. Following this process, a tender evaluation team invited two companies to put in a request for a tender.
The companies were Manteena and Lendlease. The tender evaluation team recommended Manteena as the preferred tender.
But this recommendation was not accepted by John Green, a pseudonym for a public official who wrote a brief for Education director-general Katy Haire recommending she go against the evaluations of the procurement team.
A separate evaluation team was established which also found Manteena's tender to be better but Lendlease was ultimately awarded the contract.
Mr Green has previously told the commission he got the message from his superiors that the Education Minister's office did not want Manteena to get the job.
He said the CFMEU had questioned why the Canberra-based company received all the jobs.
After a discussion with Ms Haire, Mr Green said he prepared a brief that went against the scoring of two separate tender evaluation teams.
Education Minister Yvette Berry told the commission she was aware by late 2019 that the CFMEU disliked Manteena, but could not say where she got this knowledge from. The commission also heard allegations Ms Berry's former chief of staff, Josh Ceramidas, expressed concern at Manteena receiving the contract.
Mr O'Neill told the commission on Monday he accepted Manteena was not owed an obligation to be awarded the tender but the company was owed an obligation its tender would be assessed fairly.
"If there were to be any material change in the way in which it was to be assessed that [Manteena] would be given a fair opportunity to be notified of that matter," he said.
Mr O'Neill briefly alluded to the court action brought forward by Ms Haire, who is suing the commission, alleging bias in its investigation.
Court documents, from last September, showed Ms Haire wanted to stop the commission from completing its investigation, preparing a report and holding public hearings into the matter. This was due to the commission initially refusing her lawyers the opportunity to cross-examine Mr Green. This ended up occurring in December.
Mr Green's evidence to Auditor-General
Mr O'Neill told the commissioner he would need to determine the veracity of Mr Green's evidence.
During public hearings, Mr Green admitted he did not tell the whole truth to the Auditor-General when an audit was being conducted into the matter. Mr Green said this was because he wanted to protect the reputation of the directorate.
Mr O'Neill said while the former education official had not been entirely truthful to the Auditor-General, the obligations to the Integrity Commission were different.
"On the one hand, if that is true, Mr Green has demonstrated a willingness not to be honest under oath," he said.
"However, the gravity of that concession made on oath to you should not be underestimated.
"If true, it is a concession that could carry potential serious consequences, while the Integrity Act provides him with protection against self incrimination, it does not provide him with protection if he deliberately misleads you.
"It is in this context that the gravity of his evidence needs to be considered."
Ms Haire and Mr Ceramidas have put forward "significant submissions" in relation to this, Mr O'Neill told the inquiry.
"Mr Ceramidas contends the above that submission that I just made appears to rely on Mr Green's admitted dishonesty to somehow bolster his credit," Mr O'Neill said.
The counsel assisting rejected this, saying he was not suggesting his credibility had been bolstered but it "may be indicative of a more recent attempt to be honest".
Secure local jobs code
The secure local jobs code was a key consideration for the commissioner, Mr O'Neill said.
Unions, including the CFMEU, lobbied the government to develop the secure local jobs code.
The government introduced the Government Procurement (Secure Local Jobs) Amendment Bill 2018 which sought to "ensure that public money goes only to businesses that do the right thing by their workers."
This came into effect in 2019 and required construction, security, cleaning and traffic companies who tender for the ACT government to comply with a code.
Mr Green was the former registrar of the secure local jobs code and ran into issues with the CFMEU during his tenure.
The then-CFMEU ACT assistant branch secretary Zach Smith was part of the secure local jobs code advisory council.
"The CFMEU lobbied the registrar, including Mr Green as an interested representative on the Advisory Council and there was an acknowledged level of friction," Mr O'Neill said.
When Mr Green moved over to his role in the Education Directorate in early-2020, one of the first tasks was to sort out the construction tender for the expansion of Campbell Primary School.
He met with the former CFMEU branch secretary Jason O'Mara about this.
Mr Green told the commission last year the meeting was held on or around February 19 2020 and he alleged the union secretary said Manteena should not receive the contract and that Lendlease was a better contractor.
Mr Adams questioned why the CFMEU had chosen to bring up a matter of policy with a public official.
Ceramidas and the CFMEU
Mr O'Neill took the commission through text messages between Mr Ceramidas and Mr Smith.
The pair discussed the procurement as part of this.
Mr O'Neill said these conversations showed Mr Ceramidas and Mr Smith were more than acquaintances.
"Mr Ceramidas was a good person for Mr Smith to approach in respect of the CFMEU position concerning contractors and the secure local jobs code," he said.
"They were two people who saw eye-to-eye in the way the code needed to be implemented."
Mr Adams suggested the text messages showed Mr Ceramidas was not merely a conduit for the union but an active advocate for a certain position.
"It indicates a strongly felt person view about a model of public policy which formed part of his work context as the chief of staff for the minister, in relation to the fact he had continuing contact with one of the major players, namely the CFMEU," he said.
Mr O'Neill said the commission should consider Mr Ceramidas' role and political ambitions. Although the former chief of staff has argued this was drawing a very long bow.
"You need to take into account his seniority and the position of his power and considering his evidence in respect of that role in any procurement outcome," Mr O'Neill said.
"You would likely take into further account that he was a member of the Labor party, close to Mr Smith and had political ambitions."
