Staff inside the then-deputy premier John Barilaro’s office were seeking advice on whether the controversial trade positions now at the centre of a New South Wales probe could be appointed by the minister as early as July last year.
Emails given to the upper house inquiry into Barilaro’s now-abandoned appointment to a $500,000-a-year New York job show a staff member in his office had asked a senior public servant about the process of filling the trade positions on 2 July 2021.
Barilaro’s appointment to the New York position has engulfed the state government in controversy after Guardian Australia revealed another candidate, former public servant and businesswoman Jenny West, had previously been given a verbal offer for the job.
That offer was revoked last September after a cabinet decision to have the postings become ministerial appointments.
On Tuesday Chris Carr, the general counsel for Investment NSW when Barilaro was handed the role, told the inquiry that it was the chief executive of the agency Amy Brown, or her chief of staff, who first asked him to provide advice on the positions in September of last year. Previously revealed documents show it was Carr who provided advice about making the appointments via a ministerial decree.
His evidence appeared to contradict what Brown previously told the inquiry. In June she told the inquiry the request came to Carr via the then deputy premier’s office.
But Carr said on Tuesday that his involvement with Barilaro’s office was “limited”.
“I don’t know these people. I haven’t met them,” he said.
“We were in lockdown. I was copied in on a couple of emails and attended one Teams call.”
The inquiry heard evidence that the deputy premier’s office had also sought advice from the department much earlier – in July last year.
Emails tendered to the inquiry show that on 2 July, Brown sent an email to a staffer inside Barilaro’s office – Joseph Brayford – laying out how the jobs were appointed, and whether they could be “statutory officers” appointed by a ministers.
“Further to your question on the above … there is complexity around the [commissioners] being statutory officers which may make it more appropriate to retain their status as public servants,” Brown wrote in the email.
The inquiry heard evidence from Brayford in secret on Tuesday. Another former adviser, Mark Connell, was expected to give evidence but pulled out.
After the hearing Labor’s shadow treasurer, Daniel Mookhey, said the emails raised new questions about the timeline of the appointment.
“It raises very serious questions for Mr Barilaro but equally for the government as to why the deputy premier was trying to turn these jobs into political appointments that would be made by ministers from as early as July last year,” he said.
During Tuesday’s hearing, Carr disputed parts of the evidence given by West, insisting she had not formally been offered the job.
Despite the then premier, Gladys Berejiklian and other senior ministers signing a brief noting West was the “successful” candidate for the job in August last year, Carr said the offer had not been formalised.
Noting US tax issues that delayed the appointment, Carr told the hearing that West had not been formally approved to take the role.
“My understanding is that Ms West was well advanced in the process, but not at the end of it,” he said.
He also disputed some elements of a note West took of a conversation between them after the verbal offer had been revoked, insisting he had not said he was “horrified” by her treatment.
“That is not a word I would have used,” he said.
Carr said the note had caused him some “distress” and that he was surprised she had taken notes of the conversation.
“I was speaking with a colleague who was quite plainly in a situation where I felt the need to console her because she was on the receiving end of the vicissitudes of life,” he said.
The inquiry has previously heard that Barilaro took a submission to cabinet to have the appointments made by ministers shortly before he resigned from parliament.
That submission was adopted, but then reversed by the incoming minister, deputy Liberal Party leader, Stuart Ayres.
Carr told the hearing that he only began drafting detailed advice on the logistics of making the appointments via a ministerial decree after cabinet had already decided to push ahead with the move.
The lawyer, who took a number of questions on notice throughout the hearing, was asked whether his advice formed the basis of Barilaro’s cabinet submission.
“On occasion, when providing legal advice, it is possible for that advice to include formulations that a minister might consider if they want to take it forward for cabinet consideration,” he said in response to repeated questioning.
Carr’s evidence – that he was asked to begin work on that advice in early September at the request of Brown, or her chief of staff – contradicted Brown’s previous evidence that he was asked directly by Barilaro’s staff.
However he remembered being asked about how the appointments could be made on “multiple occasions”.
“I did find myself repeating myself to say that these are public servants appointments, they’re not to be cabinet appointments,” he said.
