Brett Dixon releases 11-page statement responding to Turf Club ICAC report

Darwin Turf Club chairman Brett Dixon has broken his silence and released an 11-page statement regarding the ICAC’s Turf Club grandstand investigation and the subsequent responses from Chief Minister Michael Gunner and his government. READ THE STATEMENT.

Brett Dixon has released a statement regarding the ICAC’s Turf Club grandstand report. Picture: Che Chorley

DARWIN Turf Club chairman Brett Dixon has broken his silence and released an 11-page statement regarding the ICAC’s Turf Club grandstand investigation and the subsequent responses from Chief Minister Michael Gunner and his government. This is the full statement.

STATEMENT BY BRETT DIXON – “THE INCONVENIENT TRUTH”

Dear All,

I write this email to you as I need to correct the information detailed in the ICAC report and the information flow from some news sites regarding the New Darwin Turf Club Grandstand. You are one of over 1,000 people this email has been sent to.

This is a long story, so please bear with me. For nearly two years I have been publicly berated, accused of corruption and pilloried in certain media factions, all because I am passionate about racing, the Club I have had the honour of serving for over 19 years and this Territory.

I have been subjected to a witch-hunt. I have been forced to submit to a closed-door process, dressed up as an objective inquiry, that is intimidatory and unfair and at the end of which is published a report which distorts facts and ignores others. This Star Chamber process involves gag orders, threats to witnesses of jail if they don’t implicate others, examination by ambush, the use of coercive powers to compel evidence and yet ambivalence when evidence is leaked.

I maintain that the findings made against me of “corrupt conduct”, “misconduct” and a breach of public trust” are untenable and I have today commenced judicial review proceedings out of the Supreme Court against the ICAC to quash them.

I didn’t make the decision to award a Government grant. Yes, I attempted to persuade and I pestered and I garnered support for something I saw great value in for the Territory but it was always for others to decide if they deemed it worthy.

You might be asking yourself why a lengthy report makes no reference to that decision making process. I’ll tell you why – it’s because the workings of Cabinet are the subject of a claim for public interest immunity so they can’t be enquired into and they cannot be reported on, unless, of course, the Government waives that immunity in the interests of transparency.

This Government hasn’t done that. Instead, it’s sat back and watched others, including its own employees who were just doing what was expected of them, be publicly humiliated and it has then exploited a process it was immune from to demand the resignations of hard-working volunteers.

The Real Story…..

The Darwin Turf Club board is made up of volunteers who collectively devote thousands of hours to the Club for no financial reward and only because they have a passion for racing.

It is through the hard work of the entire board and management that the Grandstand was built within a $12million budget. Every Grant Dollar plus more is sitting at Fannie Bay Racecourse with the members and the public being the real winners.

The Club designed, engineered, created a tender, completed a tender process and built this grandstand in 13 months on time and on budget with no variations. I am very proud of the work and the tenacity of our Board and management in achieving an almost impossible task.

18 months ago, the ICAC announced he was conducting an inquiry into the grandstand which I actually welcomed. Throughout the whole process, I gave the investigation my full co-operation at all times. Little did I know this whole thing would turn into the horror story that it is today.

To start with the investigation was headed up by Commissioner Ken Fleming QC who had only a few months before the investigation commenced, complained on talk back radio that the money for the grandstand should have been his.

Then, months before the natural justice process had even commenced, he threw out teasers saying this might be something you may all be longing for.

February 2020, the ICAC turn up at the Darwin Turf Club and instantly I am placed under a gag order preventing me from speaking to anyone other than a lawyer.

Fast forward 18 months and with no warning a report is publicly released accusing me of corrupt conduct and recommending that the matter be referred to the DPP for prosecution.

As I said, from day one, I welcomed an independent inquiry. Sadly, the ICAC report manipulates the truth.

The report suggests that over the nearly 18 month period that I discussed the Grandstand concept with representatives of the Government, I had no support from the Board of the Club to do so and that I had concealed what I was up to from my fellow Board members. This is demonstrably untrue.

The report suggests that it was improper for me to have called in a favour from Concept Designs to draw a grandstand concept at no cost to the Club to assist me to persuade Government authorities of the merits of a grandstand. The report suggests that, by so doing, I guaranteed that Concept Designs would generate a handsome design fee in the event that the Grandstand was constructed. This is all absolute rubbish.

The ICAC well know, because it seized audio recordings of Club Board meetings (which somehow have turned up in the hands of one media outlet) and thousands of emails, that early in the process I tabled the Concept Design plans at a Board meeting and invited my colleagues to join me in advocating the benefits of the Grandstand to Government guests at the racecourse, where they enthusiastically did. The former Chief Executive of the Club accompanied me to several meetings with Government representatives. A letter from the Chief

Minister to me in my capacity as Chair of the Club expressing his personal support for the project was circulated to all Board members and tabled. Numerous emails were exchanged between me and members of the Executive Board regarding the status of discussions with the Government.

Concept Designs never suggested that, in return for preparing an architectural impression of a Grandstand, they would claim copyright in that design to prohibit it being used by any other design firm. When Concept Designs volunteered to prepare an artist’s impression as a favour for me, I could not have known if the Government had any interest in supporting the project and, even if they did, whether they would fund it, build it themselves for the Club using their own designers and builders or whether the Government would insist upon a different design.

The suggestion that I went behind the Board’s back in calling in a favour from a friend and conspired with him to win him a design fee is absurd. Nowhere in the report does the ICAC suggest that any of my fellow board members have suggested that I did not have their support for what I was doing.

The report suggests that I sought to exploit donations I made to the Labor Party before the 2016 Election. Two donations, each in the sum of $50,000, were made by companies of which I have only ever been a 20% shareholder. Despite this, a reader of the report could be forgiven for believing that at least one of the donations was made by a company controlled by me alone notwithstanding that I produced indisputable documentary evidence from our banker which proves that no donation was ever made by that company.

I supported the decision of the majority shareholders of the donor companies to make the donations at the time. I did so because I genuinely believed that a Gunner Government would be good for business and the economy in the Northern Territory. The idea that, having supported the making of those donations in 2016 I had in mind that two years later I would exploit them to ask the Government to fund a $12million Grandstand for the racecourse is

preposterous.

I make no apology for using my Government contacts for the benefit of the Turf Club. I approached the Government because I genuinely believed that the Grandstand would attract hundreds of racegoers from Asia and southern States bringing money into the Northern Territory economy, I was then, and remain, proud of the idea. Seats in the Grandstand for the 2021 Cup Carnival sold out months ago.

I did not ask for any favours. The Government could have dismissed my approach but instead they enthusiastically embraced it. I cannot speak for why they did so. I did no more than to follow the suggestions I received from the Government all along. While I and my fellow Board members were convinced of the merits of the project, it was for the Government to make up its own mind. I am not a member of Cabinet. I do not know what material Cabinet considered beyond the submission provided by the management of the Club.

No adverse findings whatsoever are made against me in the report regarding anything that happened prior to the Government’s decision to award the Grant to the Club. Despite this, my involvement in this period is the subject of gratuitous criticism and implications of corruption and even bribery.

The adverse findings against me all concern the award of the Construction Contract to my Company, Jaytex, and the circumstances in which that occurred. In this respect, I am the subject of purported findings of “corrupt conduct”. I am accused of “corrupt conduct” because, according to the Commissioner, I was extensively involved in the development of Jaytex’s tender submission but failed to disclose that involvement to the Board and failed to exclude myself from any involvement in the Board’s deliberations in relation to the Grandstand. I say “accused” because, of course, the findings of the Commissioner have no lawful status. They are findings arising out of a “Star Chamber” inquiry using extraordinary coercive powers and in which a witness has no right to even know what other evidence has been received, let alone to challenge it.

The accusations of “corrupt conduct” and “misconduct” in the ICAC Report adopt those words as they are defined in the ICAC Act. The definition of “corrupt conduct” in the ICAC Act does not equate to “corruption” in the sense that it is typically understood. Rather it means conduct which might justify the dismissal or termination of a Public Officer. Similarly, “misconduct” means conduct which might justify some disciplinary action being taken against a Public Officer.

Under the ICAC Act, I and the other members of the Board of the Club are deemed to be “Public Officers” within the extended definition of that term simply because we are members of the Board of a private entity that has received public funds. None of us are, or have ever been, public servants or servants or agents or contractors to the Northern Territory.

People have their own views about me and about whether I should remain on the Board of the Club. That, of course, is a matter for the members of the Club, a good number of whom have been unwavering in their support of myself and my colleagues on the Board. The Northern Territory Government has no power to dismiss or discipline me or any other Member of the Board, just as the Government has no power to dismiss or take any disciplinary action against

Members of the Board of any sporting club.

It follows, therefore, that I could not ever be guilty of “corrupt conduct” or “misconduct” as defined in the ICAC Act, but my submissions to the ICAC in this regard were ignored.

On the very day the ICAC report was released, the Chief Minister demanded my resignation and the resignation of every other Board Member and threatened to introduce legislation to remove us if we did not comply with his demand. Of course, the Chief Minister’s recognition that he could not remove us without introducing legislation only serves to make good the proposition that the findings of “corrupt conduct” and “misconduct” against me made by the ICAC are wrong.

Moreover, the findings ignore that even on the incorrect factual basis on which they were made, I cannot be suggested to have breached the only laws that govern my position as the Member of a Board of an incorporated association – the Associations Act.

The Cabinet’s decision to award the Grant was made on Friday 13 June 2019. The Board of the Club met just five days later on 18 June 2019. At that meeting I disclosed a potential conflict of interest. I told the Board that Jaytex might bid for the job. For that reason, I could not and would not be involved in the preparation of the invitation to tender or the assessment of the tender. The audio recording of that Board meeting confirms that I made that disclosure.

Section 31 of the Associations Act requires a member of the committee of an Incorporated Association (ie a Board member) who has a direct or indirect pecuniary interest in a contract, or proposed contract, with the Association must disclose the nature and extent of the interest to the committee. This is the only relevant obligation imposed upon a Board Member under that Act and I complied with it.

Section 32 of the Associations Act prohibits a member of the committee of an Incorporated Association who has a direct or indirect pecuniary interest in a contract or proposed contract with the Association from taking part in a decision of the committee with respect to that contract but may take part in deliberations with respect to the contract.

The “contract” in this case was the Construction Contract for the Grandstand. I did not take part in any way in any decision of the Board of the Darwin Turf Club with respect to that contract. Nor did I have any involvement in any deliberations of the Club Board with respect to that contract.

I was in attendance at a Board meeting of the Club on 18 June 2019 at which the process for the preparation of an invitation to tender would be delegated to and managed by one of the Board members (not me) was discussed. I was present at a subsequent Board meeting on 30 July 2019 which received a report from the Board member responsible for managing the tender process on the establishment of a Tender Assessment Panel (of which I was not and was never to be a member). Contrary to the ICAC’s findings, I had no involvement in the appointments to that Panel. The appointments were made well before that Board Meeting and notified to me as a member of the Board after the fact.

The Tender Assessment Panel included a nominee of the Government and an independent Probity Advisor. The tender submitted by Jaytex and the tender submitted by others, were considered by this Panel in the full knowledge that I was a director and shareholder of Jaytex. I did not speak with any member of the Tender Assessment Panel about the tenders. I was never privy to its deliberations or its recommendations until the ICAC investigation commenced. The recommendations of the Panel were considered at a meeting of the Club

Board in my absence. I had no involvement in the discussions of the Board at that meeting evaluating the tenders and considering the recommendations of the Panel. I had no involvement in the decision of the Board to award the contract to Jaytex. The records of these meetings, which someone has leaked to the media, incontrovertibly prove this.

What I know now, but I did not know at the time, is that when the Jaytex price was compared like for like, the Jaytex price was considerably lower than the two other shortlisted tenderers.

How, in light of these facts, I could be suggested to have acted improperly, let alone to be accused of corruption, is beyond me. I had, quite properly, disclosed my interest and absented myself from any decision making process. I did not attempt to influence anyone in any way.

Much has been made of what the ICAC has characterised as a “secret meeting” held in my boardroom on 17 June 2019. The ICAC suggest that it was “secret” because I concealed it from the Board. This is a gross distortion of what occurred and its context.

I’ll start with the context. As the report points out, I had been lobbying the Government for 18 months for Government funding for a Grandstand. In January 2019 Mr Leonardi had sent me the unsolicited “letter you need to write”. That letter included “Our costings show we will need approximately $12million for these improvements. If this was to be provided this could be underway as soon as this year’s Carnival is complete and in time for 2020’s Carnival.” It was obvious to me that the Government wanted the Grandstand completed before then, otherwise any economic benefit from the project (attracting interstate guests during Carnival time) would not be realised for another year.

In early June 2019 the Chief Minister’s Chief of Staff was chasing me for a submission from the Club in support of a grant application which I left in the hands of the Club’s then Chief Executive Officer and Chief Financial Officer. I had no role in the preparation of that submission. It was completed on 13 June, my electronic signature was applied to it and a copy was sent to me after it had been sent to the Government.

I had no knowledge that the submission was to be considered by Cabinet that day or at all. When I learned that Cabinet had resolved to award the Grant to the Club, I was very concerned that meant the Club somehow had to build a Grandstand within approximately 12 months, when no detailed design had been completed, no engineering assessment had been undertaken, there was no planning approval and no invitations to tender had been prepared. It was obvious to me that, even with the best will in the world, there was no way that a builder could start work until at least September 2019, yet the Government was expecting the Grandstand built before the 2020 Cup Carnival.

The award of the Grant was so sudden and unexpected, that although I was immensely happy it had been awarded, I feared that it might not be possible to deliver what the Government had agreed to fund within the timeframe required. What the Commissioner has called a “secret meeting” was attended by the designer who had drawn the architectural impressions, an engineer and, at my request, the General Manager of Jaytex. I asked him to attend because I

needed to establish whether it would be possible to actually complete the build in the required timeframe. If it could not be, we had to let the Government know immediately. The Chief Executive Officer of the Club attended that meeting at my request. He did so because it was not a “secret” meeting. I never told him to conceal the fact of the meeting from anyone.

I had explained to the Commissioner the almost an impossible position the board of the Club had been put in by the Government awarding the Grant on no notice but expecting the project to be completed within such a short period. The Capital Grant Deed expressly provided for a tender to be open on 15 July – just one month later. The Commissioner rejected that submission suggesting that there is no evidence that the Government wanted the project completed before the 2020 Darwin Cup Carnival.

The Commissioner’s principal adverse finding against me is that I was “extensively involved in the development of Jaytex’s tender submission”. That finding is based on what is said to be in paragraph 381 of the report, my involvement in email communications with the General Manager of Jaytex between 22 July 2019 and 24 August 2019.

I have no issue with anyone seeing those emails if they have a desperate desire to. A number of them were sent after the Jaytex Tender was submitted and, hence, how they can be suggested to be evidence of my involvement in the preparation of the Tender escapes me. Nearly every one of the other emails is an email sent by the General Manager to me for my information or asking what my view was on minor elements of the design, such as balustrading. In one email I suggested that the General Manger seek quotes for a high class lift from a particular supplier, another was a suggestion for a glass supplier. A number of

the emails I didn’t even respond to.

With appendices the Jaytex tender comprised over 400 pages. Not one word in that document was authored by me. I had no involvement in seeking quotes from sub-contractors or suppliers or considering them. I had no involvement in pricing the job. I had no involvement in preparing any of the documentation, no involvement in connection with preliminaries, site preparation, environmental management, general requirements, design and documentation, columns, stairs, escalators (beyond supporting the suggestion of re-orientation), insulation, external walls, windows and doors, internal walls and screens, concrete construction, timber and steel construction, painted rendered concrete walls and block construction, resolvent finishers and water proofing, roofing, ceiling finishers, plastering, joinery and fixtures, painting, plumbing, gas and drainage, electrical installations, mechanical installations, provisions of some items, fire services, security or any other aspect of the job.

The suggestion that by receiving emails from the General Manager and responding to just some of them in a few words, I was involved in the preparation of the Jaytex Tender Submission is a distortion and a “stitch-up”.

As is now well known, Jaytex made a loss on the job. It made a loss because it did not ask for one variation that it was entitled to under the contract. Jaytex could have simply applied for prolongation variations that every contractor was receiving through the height of the Covid period, but it did not because the Club could not afford it. Despite the fact that Jaytex could have made a profit on the job had it made those claims, the Commissioner still suggested that Jaytex set out to make a profit.

Jaytex had no advantage over any other tenderers. Before the tenders opened the only documents in existence were two artistic impressions, rough floorplates and a location map. Jaytex received the Invitation to Tender and all of the extensive documentation which formed part of it at the same time as everyone else and the records of Jaytex prove that no work on the project was done until that material was available. There was nothing discussed at the earlier so called “secret meeting” that gave Jaytex any advantage whatsoever. There couldn’t

have been, because there was nothing to share beyond bare concept plans that were overtaken by the detailed specifications and plans that went to all tenderers several weeks later.

With the benefit of hindsight, I would never have agreed to Jaytex bidding for this work. It no doubt would have meant that there would be no Grandstand because the pricing of the other tenders exceeded the Grant and the Club had no funds at the time to bear any additional expense. I supported Jaytex’s decision to bid for the work because I had confidence that, if Jaytex was awarded the job, it could and would deliver on time and on budget. That is precisely what has occurred.

I have been subjected to ridicule and contempt as a result of this report. I have been accused of corruption when I did not pocket one cent. Over the years I have donated hundreds of thousands of dollars of cash and benefits to the Darwin Turf Club. I have donated thousands of hours of my time. I have been accused of things I never did. Every day I wake up to yet more factually incorrect media reports.

Throughout this process I have had to endure relentless media commentary from a particular media outlet and its associates. Notwithstanding that, in light of the gag order made by the ICAC, I had no way of responding. Somehow, this media outlet has received and then selectively quoted from confidential material produced to ICAC under compulsion.

Somehow this media outlet and its associates claim to have seen a text message from my mobile telephone which I was forced to hand over to ICAC during this process. Part of the text message is quoted in the final ICAC Report. The quoted section in the ICAC Report omits key words which follow and which fundamentally undermine the interpretation the ICAC put on the text in the report. While not identified in the ICAC Report, the sender of this message has since been identified by a media outlet which claims to have “seen … the original message referred to in the ICAC report” and “confirmed through various sources”. It wasn’t confirmed by me or the sender. So who was it? Who else could have access to it? Why is the quote from the message in the ICAC Report incomplete? Why is what is quoted by these media outlets as a complete faithful reproduction of the entire text missing the same words omitted in the ICAC Report?

I made a complaint to ICAC about the apparent leaking of information about the ICAC Investigation, and evidence received using ICAC’s coercive powers, to this media organisation. The ICAC denied any involvement in it and the Inspector accepted that denial without apparently having undertaken any investigation of his own. I have reported these matters to the Northern Territory Police and I trust that they will be investigated with the same vigor that the ICAC investigated me.

This is not the end … its just the beginning!

Brett Dixon