The Barilaro case has precedents – and only the ICAC can deliver the truth

Disturbing though some of the revelations in the Barilaro inquiry may be, this is not the first time allegations of political interference in public service appointments have been investigated. Similar claims were made against the Greiner and Carr governments and in both cases it took an ICAC inquiry, with its royal commission powers, to get to the truth.

As the relevant minister, John Barilaro oversaw the creation of five overseas trade commissioner positions. Now a Legislative Council committee is trying to uncover just how he came to be appointed to the New York job despite not being a candidate in a process that saw the position advertised, applicants interviewed and another qualified person offered the role.

Des Semple, centre, leaves the ICAC in 1996. Credit: Peter Rae

So far, there are significant gaps in our understanding of what actually happened. What we do know is that Jenny West, a candidate who was initially found to be perfectly suitable, and who had been told she was perfectly suitable, was offered the job – but was somehow subsequently considered unsuitable. Most importantly, the selection process was changed by someone – apparently to the benefit of Barilaro.

What we do not know is precisely how the new selection process that saw Barilaro being offered the job differed from the one that chose West. To make matters even more opaque, there has been no information provided by the government to suggest her unsuitability or Barilaro’s suitability, in accordance with transparent criteria. Nor has there been an adequate explanation for the changes in the mode and timing of the appointment. To put it simply, it does not pass the “pub test”.

In 1992, ICAC investigated the circumstances surrounding the resignation from parliament of Terry Metherell to take up a public service position – an act which coincidentally shored up the minority Liberal government’s hold on office. The political interference revealed in that inquiry effectively forced the then premier, Nick Greiner, from politics, although on appeal to the Supreme Court he was subsequently cleared of corruption findings.

However, an ICAC investigation that is even more relevant to current events was the 1996 inquiry into the firing of Des Semple as head of the Department of Community Services.

That inquiry focused on whether proper processes had been followed in determining the appropriate grading of Semple’s position in the Senior Executive Service. After an initial assessment, using specific criteria, a panel found Semple’s grade should remain unchanged. However, after the head of the Public Employment Office intervened in the process, he was reassessed at a lower grade.

This meant Semple’s position could be declared vacant. It is worth noting that the ICAC found no evidence to support allegations that the downgrading was part of a politically motivated attack by disgruntled unions. As part of its inquiry, the commission also examined whether then premier, Bob Carr, was improperly involved in the decision to remove Semple.

In his report, commissioner Barry O’Keefe stated: “The question at the end of the day is whether any corrupt conduct occurred at the ‘evaluation’ stage and, if so, whether that was specifically linked to the removal of Mr Semple. There can be no doubt that the decision to remove Mr Semple was flawed by a failure to observe due process … The overriding question was whether that resulted from mismanagement or corrupt conduct.”

This is the crucial matter any investigation into the appointment of Barilaro should scrutinise. Unlike Greiner, Carr was not the subject of any adverse findings by the ICAC. However, in their times, those inquiries necessitated deep examination of processes governing the suitability of candidates for office and had considerable importance for the future of the Greiner and Carr governments respectively.

Terry Metherell and Nick Greiner in 1988.Credit: Archive

We have been assured by Premier Dominic Perrottet that he had been informed that the initial recruitment process had not identified a suitable candidate. But the evidence of the only two witnesses so far in the public parliamentary inquiry does not sit well with that. In fact, signed briefs provided to those proceedings show that Gladys Berejiklian and Stuart Ayres confirmed that then treasurer Perrottet would be informed of West’s selection.

Furthermore, there is conflicting evidence as to whether Barilaro or his successor, Stuart Ayres, might have changed the process. So, how can we get to the bottom of all this?

There are currently two investigations under way; one is the open, or at least mostly open, parliamentary inquiry, and the other is the public service inquiry over which Graeme Head is presiding. So far, we have no information as to the progress of that one.

Neither of these bodies, however, has sufficient powers. To find out what really happened, we need an ICAC inquiry.

Greg James QC is a former NSW Supreme Court judge and former president of the NSW Mental Health Review Tribunal. He acted as counsel in the Metherell and Semple ICAC inquiries.