The ACT Education Directorate head, Katy Haire, has launched a court action to stop a corruption probe – a move the Canberra Liberals condemn, alleging political interference by the ACT Government.
Ms Haire began legal proceedings in the ACT Supreme Court in September to stop an Integrity Commission investigation into Operation Kingfisher, an investigation involving the conduct of Ms Haire, among others, in connection with the procurement of a construction contract for the refurbishment of Campbell Primary School, the Commission stated.
The ACT Government announced in 2018/19 that it would spend $18.8 million to modernise Campbell Primary School, built in 1961. Out of six firms that expressed interest, two were invited to submit tenders: Lendlease Building and Manteena Commercial. Lendlease was awarded the contract for services in September 2020, and construction work began in January 2021.
The Auditor-General’s report, published in December 2021, found that the procurement process “lacked probity”; the delegate for the procurement, the Acting Executive Group Manager, Business Services Division (Education Directorate), did not deal with tenderers “fairly, impartially, and consistently”; and the decision was “not based on the evaluation criteria with which the Territory approached the market and sought tenders”. The delegate re-weighted and re-prioritised the evaluation criteria, and placed unfair pressure on Manteena to acquire its design for less than its value.
The ACT Integrity Commission began public examinations last August.
Ms Haire allegedly accused Integrity Commissioner Michael Adams KC of bias, and is seeking for no report or findings to be made.
A Directions hearing in the Supreme Court was held on 7 September. The final hearing has been adjourned until 25 November.
On 18 September 2023, the matter was listed in the Directions list for a final hearing date to be set down. The first hearing date of 27 November was not suitable to Ms Haire, the Commission states, and consequently a listing date of 5 February 2024 was determined. On 15 March, Ms Haire sought further adjournment, and on 15 April, the final hearing date of 25 November was determined.
The Integrity Commission is defending the matter, and has engaged external legal counsel to act on its behalf. The Commission states that Ms Haire’s legal action has not hindered the investigation.
The next stage in the Commission’s investigation will occur on 8 July: a public hearing will receive submissions from both Counsel Assisting the Commissioner and, in response, counsel on behalf of interested persons.
The Commission states that this will provide all relevant parties with adequate time to consider and prepare responses to the submissions produced by Counsel Assisting. The Commissioner will then prepare a draft report and provide it to all parties under the required procedural fairness requirements of the Integrity Commission Act 2018. After consideration of any comments that interested parties may make, the Commissioner will make a final report to the Legislative Assembly.
ACT Government ‘not a participant’, but assists with legal fees
An ACT Government spokesperson said: “The Territory is not a participant in the legal proceedings commenced by Ms Haire in September 2023, and has no involvement in those proceedings.
“As the Territory is not a participant in the proceeding, it is unaware of the current status of those proceedings and cannot comment on reasons for the timing of the procedural steps in the proceeding.”
The ACT Government has, however, agreed to assist Ms Haire with the cost of her representation.
The spokesperson explained that public employees who are the subject of legal claims or inquiries arising out of the course of the performance of their duties are entitled to seek assistance in relation to their legal representation pursuant to the Law Officers Legal Services Directions 2023.
However, Canberra Liberals leader Elizabeth Lee remarked that under those Directions, it was clear that the provision of ‘assistance’ with legal fees was for defending any proceedings arising out of action within the scope of their employment, not for commencing them.
Further, Ms Lee observed, the directions specifically state that assistance is not provided if a public servant is “defending professional or personal disciplinary investigation or action”, and that any provision of legal assistance may be rejected or withdrawn if the ACT government is not given notice of legal proceedings.
“It is incomprehensible that the Education Minister [Yvette Berry] continues to deny having any knowledge of the court proceedings when ACT taxpayers are footing the bill,” Ms Lee said. “Canberrans have every right to be outraged by this.
“The Chief Minister [Andrew Barr], Attorney-General [Shane Rattenbury] and the Education Minister need to front the public and explain why ACT taxpayers are paying the legal fees for a Supreme Court application to try and stop a serious corruption investigation.
“Who approved the payment of the legal fees for this Supreme Court application and what were the reasons? And having agreed to pay the legal fees, does the ACT government support this Supreme Court application seeking to shut down the Integrity Commission investigation?”
Canberra Liberals accuse ACT Government of interference
Elizabeth Lee has said she was alarmed at what she claimed was the ACT Government’s interference with the Integrity Commission investigation.
“It is extraordinary for the ACT government to take this unprecedented action, especially following the damning evidence that has been put forward during the recent public Integrity Commission hearings on the matter,” Ms Lee said.
During the course of the Integrity Commission’s public hearings on this investigation, Ms Lee said, serious allegations were raised that the final decision may have been as a result of direct pressure from education minister Yvette Berry’s office.
In April 2022, Ms Lee alleged that documents showed that Ms Berry was aware of potential problems with the Campbell Primary School procurement months before the Auditor-General’s report found the process lacked probity: the education minister was briefed about potential issues with the procurement and made aware of the audit in May 2021, despite her stating in Annual Reports Hearings and in Question Time that she had no knowledge until the Auditor-General released the report in December. Ms Berry claimed that she was kept informed about the process of the audit as it occurred, but the audit report finding around lacking probity was only known when the audit was finished.
“The Integrity Commission’s investigation has already highlighted serious issues around this procurement, and for the ACT government to try and have the investigation stopped constitutes what many Canberrans will clearly see as political interference,” Ms Lee said today.
“Accusations of bias against the Integrity Commissioner must be treated very seriously and expeditiously. For this matter to be listed one month after the ACT election in October this year (14 months after the application was filed) is extraordinary.
“The court file shows that this matter has been delayed on no less than five occasions and raises serious questions about the motivation for the ACT government commencing this legal action.
“Canberrans are right to be frustrated with how long this matter is taking to be finalised – as they are with the investigation of the dubious CIT contracts – and this clear intervention by the ACT government whilst there is an active investigation by the Integrity Commission under way is deeply concerning.
“The Integrity Commission was set up to ensure that serious allegations like we have seen with the Campbell Primary School Modernisation Project procurement and the CIT contracts are investigated at arm’s length of the government, and it is essential that there is no undue intervention of the Commission’s investigations.
“Given the extraordinary lengths the ACT government is taking to delay the findings of this investigation until after the October ACT election, Canberrans should be asking: what does the government have to hide?
“The ACT government has very serious questions to answer, including:
- When did the Chief Minister [Andrew Barr], or the Attorney-General [Shane Rattenbury], or the Education Minister know about these Supreme Court proceedings?
- What is the basis of the bias claim against the Integrity Commissioner?
- Why have the Supreme Court proceedings been delayed so many times; and who requested the delays?
