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12/2107/021PUB06688 CREDO/SPICER PUBLIC 01/09/014 pp 06688-6745 HEARING

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INDEPENDENT COMMISSION AGAINST CORRUPTION THE HONOURABLE MEGAN LATHAM PUBLIC HEARING OPERATION CREDO AND SPICER Reference: Operation E12/2107/0821 TRANSCRIPT OF PROCEEDINGS AT SYDNEY ON MONDAY 1 SEPTEMBER, 2014 AT 1.50PM Any person who publishes any part of this transcript in any way and to any person contrary to a Commission direction against publication commits an offence against section 112(2) of the Independent Commission Against Corruption Act 1988. This transcript has been prepared in accordance with conventions used in the Supreme Court.

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MR O’MAHONEY: Commissioner, I call Kristina Keneally. MR WHITE: I seek leave to appear on behalf of the Honourable Kristina Keneally. THE COMMISSIONER: Yes, Mr White, that leave is granted. Yes, come forward, please, Ms Keneally. MR WHITE: Ms Keneally will take an oath and is seeking a declaration under section 38, thank you. 10 THE COMMISSIONER: Right. Thank you. Ms Keneally, I just need to confirm with you that you understand that the order under section 38 protects you from the use of your answers against you in civil or criminal proceedings but doesn’t protect you if it should be found that you’ve given false or misleading evidence. You understand that? MS KENEALLY: Yes, Commissioner. 20 THE COMMISSIONER: Pursuant to section 38 of the Independent Commission Against Corruption Act, I declare that all answers given by this witness and all documents and things produced by this witness during the course of the witness’s evidence at this public inquiry are to be regarded as having been given or produced on objection and accordingly there is no need for the witness to make objection in respect of any particular answer given or document or thing produced PURSUANT TO SECTION 38 OF THE INDEPENDENT 30 COMMISSION AGAINST CORRUPTION ACT, I DECLARE THAT ALL ANSWERS GIVEN BY THIS WITNESS AND ALL DOCUMENTS AND THINGS PRODUCED BY THIS WITNESS DURING THE COURSE OF THE WITNESS’S EVIDENCE AT THIS PUBLIC INQUIRY ARE TO BE REGARDED AS HAVING BEEN GIVEN OR PRODUCED ON OBJECTION AND ACCORDINGLY THERE IS NO NEED FOR THE WITNESS TO MAKE OBJECTION IN RESPECT OF ANY PARTICULAR ANSWER GIVEN OR DOCUMENT OR THING PRODUCED 40 THE COMMISSIONER: Can we have the witness sworn, please.

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<KRISTINA KERSCHER KENEALLY, sworn [1.52pm] MR O’MAHONEY: Are you Kristina Kerscher Keneally?---Yes. And, Ms Keneally, I’m sure you don’t need me to tell you, but one of the issues that’s arisen in this inquiry has been the fate of the old BHP site at Mayfield. As I understand it, it was the case that at one point in time it was earmarked to be a container terminal and then there was a debate that ensued about whether or not a coal loader should be put on that site. That’s 10 a longwinded way of asking this question, when did you first become aware, if you did become aware, of that issue?---Of the issue of the change of use or the issue of the Mayfield Site itself? Well, let’s start with the Mayfield Site itself?---I became aware of the Mayfield Site and the Intertrade Site which is adjacent when I was the Minister for Planning in 2008 and 9. And did you become aware of this debate about whether or not it should be a container terminal or a coal loader?---No. At that time, no. 20 Not at that time, but subsequently is it the case that you became aware of an issue about the future of the site?---Only as a result of the leaked Treasury document and the, the ensuing public argument between Minister McKay and the people she believed leaked the document. I was going to ask you about that. We’ve got some information that while you were Premier a document was leaked, a confidential Treasury document?---Ah hmm. 30 And that the current Member for Newcastle at the time was not at all happy about that. Could you tell us how you became aware of that happening? ---Of the leaked document? Yes?---Yes. Ah, I became aware of the leaked document when Minister McKay rang me. I don’t recall the precise date that she rang me but having reviewed her evidence given last week I assume it was within a very short timeframe after she rang Mr Roozendaal in the evidence that she gave last week. I recall quite vividly her describing how angry she was in the telephone call to Mr Roozendaal, how she’d been standing, she painted a 40 very vivid picture of her standing near her windows of the level of which she was speaking, how she was sure her staff had never heard her shout so much. She ah, said to me that the Newcastle Herald had this leaked document and she put to me that her response was going to be that people within the Government were undermining her. I said to her she should say what she needed to say because clearly the document had been leaked, I also told her that if she had any further issues with the Treasurer or his office she should call me.

01/09/2014 KENEALLY 6690T E12/2107/0821 (O’MAHONEY)

And was – did you follow it up, that up at all with the Treasurer?---I did. Tell us about that?---I almost immediately after getting off the phone with Ms McKay rang the Treasurer that’s my recollection that I rang him almost immediately after I got off the phone with her, I asked him directly if he had leaked the document or if he was aware of how the document came to be leaked he emphatically and in very clear tones denied being directly involved with the leaking of the document or having any knowledge as to how it became leaked. He was very angry as well. He made clear that the 10 leaking of the document reflected badly on him and he was furious that he appeared to be implicated in that. He also made clear that his view that Ms McKay had mishandled the Mayfield issue by asking for an extension of public consultation on the site making it near impossible to proceed with the selection of the preferred proponent, I said to him, I can't recall the exact words but the upshot of my response to him was that it was no longer his, his view of her political strategy was no longer relevant, we were only weeks from an election, she needed to do, she now how to do what she needed to do to save her seat, I asked him to get his department and his office under control and I also asked him not to, to interfere with or speak to 20 Ms McKay again he assured me that would not be a problem and he was happy to leave her alone. Mrs Keneally, in your experience how important is it for the purposes of good Governments and Parliamentary processes for confidential Treasury documents to be kept confidential?---It’s essential. Why do you say that?---In circumstances such as this where we’re dealing with – one of the most powerful things Government can do which is reward a project to a private sector proponent the Government has to have upmost 30 probity and upmost confidentiality. It’s one of the most significant things the Government can do it gives a significant financial benefit to a private sector company when a Government solely awards the right to develop something, to develop a site or to develop a project, so it’s absolutely crucial that those negotiations, those discussions and the information that Government’s using remains confidential much in the same way that companies rely in commercial and confidence information. Certainly. I want to ask you now, Mrs Keneally, about a gentleman Mr Ian McNamara. We understand that as at least late 2010 he was working in 40 your office. Could you tell us about how it came to be that he started working within your office?---I can’t give you precise details as to how he came to be working in my office. In the lead up to the election staff were often moved about from their substantial positions into other positions and given that he was a relatively junior staffer in my office I likely wouldn’t have been involved in that discussion. At the Premier’s office has about 25 or 30 staff and only about four to six of them would directly report to or interact daily with the Premier. However he did come to work in our office


in the lead up to the campaign period, sorry, in the lead up to the election as part of the campaign period, he was certainly there in the period of January and February 2011. And can you tell us about the nature of his role?---My recollection of Mr McNamara’s role in the office was that he was responsible for compiling a list of potential projects or issues that MPs either in local electorates or across the State could campaign on. We had a limited amount of money on which we could use in a campaign to make commitments and Ian’s role revolved around creating the list of those, identifying them, helping getting 10 them costed and helping us identify those with which we wanted to proceed. For example one project I recall that he worked on was the children’s playground near the Homebush Olympic Park. We’ve got some information that while working in your office Mr McNamara started working very closely with Mr Tripodi and Mr Roozendaal in respect of the Mayfield site we’ve been talking about. Did you know about that?---No. Wasn’t it the case that you asked him to take point on that project for 20 example?---No, I did not give Mr McNamara any instructions on my behalf to become involved with discussions on that project. I have also checked with my former Chief of Staff as to whether within the office any assignment of portfolio responsibility on that matter was given to Mr McNamara and he has told me that it was not. And I take it your Chief of Staff at the time was Mr Walt Secord?---Yes. Can I ask this, apart from working with Mr Tripodi and Mr Roozendaal we understand that Mr McNamara was helping a company called Buildev 30 which was the company that had an interest in the coal loader. Did he ever report back to you about the body of work he was doing on this project? ---The only conversations I can recall with Mr McNamara revolved around the work he was doing for the campaign and were in meetings where other staff were present. And in late 2010 early 2011 when Mr McNamara was working for you it was a fulltime job?---Yes. And I take it it wouldn’t be the case that you were encouraging staff 40 members, Mrs Keneally, to take on their own pet projects and sort of on the quiet work on them without reporting back to you?---Or to the Chief of Staff, no, that is correct. And hearing that know what, I mean, if you’d known that at the time what would you, have been your response?---We would have moved him out of the office.


Why is that?---In the middle of a campaign the Premier’s office needs nothing less than people who are 100 per cent focussed on the task at hand. We’ve got some information that he might have been involved himself in altering some Government documents in respect of the, the Mayfield site. I take it – well, there’s some suggestion of that, that he’s, he’s intervened in the project in quite an intimate way. Do you know how it could come about that while being a staffer in your office he was doing that?---No. Can I ask this, Mrs Keneally, that we also understand that during the 10 election campaign the Treasurer, Mr Roozendaal, was being requested by Ms McKay to – constantly to sign off on this container terminal proposal, he wasn’t doing that and she’s given evidence that that was a source of immense frustration and anger to her. Were you aware of the process that was resulting in the delay on that front?---First of all neither Ms McKay nor Mr Roozendaal raised this matter with me during that period from the point at which Mr Roozendaal took over the Ports portfolio in September through to until I had the conversations with both of them regarding the leaked Treasury document. To put that in context whilst this matter of course is quite significant today at the time in the context of the election campaign we 20 were dealing with the inquiry into the electricity privatisation, the campaign and a whole host of other issues. This was not an issue that was occupying a whole of Government perspective. Did Mr Roozendaal ever raise with you that he was working fairly closely with Mr Tripodi and Mr McNamara in respect of this Mayfield Site?---No. Was there every any discussion about ripping up the longstanding ACCC agreement in respect of the Newcastle Port - - - 30 MR STRICKLAND: I object. THE COMMISSIONER: Sorry, what was the objection, can’t - - - MR STRICKLAND: No premise, that, that question does not - - - MR O'MAHONEY: I won’t press it, Commissioner, I think the documents will speak for themselves on that front. Something we’re struggling to understand and you might be able to help us 40 with, Mrs Keneally, is this, if I told you that the Member for Fairfield had really injected himself into this process quite intimately himself do you have any understanding of how that could come about, what was in this for the people of Fairfield? MR NEIL: Well, I object to the premise. THE COMMISSIONER: Well - - -


MR NEIL: Really injected himself, where does he get that? THE COMMISSIONER: All right. Well, look, let’s rephrase it. MR O'MAHONEY: Okay. THE COMMISSIONER: Ms Keneally, if you, if you were aware of the fact that Mr Tripodi is said to have altered the content of the document before it was published what would be your reaction to that? 10 MR O'MAHONEY: I’ll have a go. MR NEIL: It’s not even from Mr O’Mahoney. MR O'MAHONEY: Commissioner - - - THE COMMISSIONER: Well, but Mr Neil, all I’m doing is stating what is the effect of the evidence thus far. 20 MR O'MAHONEY: Commissioner, I’ll try and rephrase the question. MR NEIL: There’s no evidence on that basis at all. THE COMMISSIONER: I’m afraid we do have evidence from a number of sources that Mr Tripodi did actually change the content of the document. MR O’MAHONEY: Commissioner, I won’t take that up with my friend now. 30 THE COMMISSIONER: But anyway- - - MR NEIL: I think you must be thinking about the pamphlet. THE COMMISSIONER: I am thinking about the pamphlet. MR NEIL: Yeah, but my friend’s asking about the Treasury document. THE COMMISSIONER: Oh, well, I’m sorry, I was, I was at cross-purposes. I’m sorry. Go on, Mr O’Mahoney. 40 MR O’MAHONEY: I’ll frame the question as neutrally as I can. Ms Keneally, were you aware that Mr Tripodi was engaged with this project at all?---No, I had very few conversations with him in the lead-up to the election.


But assuming that he was engaged to some extent with the project during the election campaign, could you, would you have any insight into how that might come about?---No. So he never reported back to you about this project at all?---No. You’re laughing. Is that just unbelievable?---I don’t think there’s a basis for why I would have even contemplated that Mr Tripodi as the Member for Fairfield should have been reporting to me as the Premier about an issue that was taking place in the seat of Newcastle. 10 We’ve heard some evidence today about Mr Tripodi having a hand in the Stop Jodi’s Trucks campaign, the pamphlet campaign that was plainly directed against the sitting Member for Newcastle at the time, Jodi McKay. Were you ever made aware of that at all, at the relevant time?---Of the flyers? Yes?---I was aware that the flyers had been distributed and I knew that Jodi was concerned about them. 20 Did you have any understanding at the time they were being distributed that Mr Tripodi might have a hand in that?---Oh, goodness, no. What would have been your response as Premier if you’d heard that? ---I’m not entirely sure the language I would have used should be repeated in this room. Ah, it is an ultimate act of betrayal as a Member of the Australian Labor Party to campaign against or work against an endorsed member, an endorsed candidate. It just is unthinkable. Thank you, Ms Keneally. They’re all the questions, Commissioner. 30 THE COMMISSIONER: Yes, any questions of Ms Keneally? Yes, Mr James. MR JAMES: Commissioner, I seek leave to appear on behalf of Mr McNamara? THE COMMISSIONER: Yes, yes, that leave is granted, yes. MR JAMES: And I seek leave to question this witness. 40 THE COMMISSIONER: Yes, go ahead. MR JAMES: Ms Keneally, during January and February 2011 can you cast your mind back, please, seeking to remember the, I think you said 25 or 30 staffers that were then working with you?---Ah hmm.

01/09/2014 KENEALLY 6695T E12/2107/0821 (O’MAHONEY)/(JAMES)

What I want to suggest to you is during those months leading up to the election a Mr Lalich was seeking election I think. Do you recall a Mr Lalich?---Nick Lalich, the Member for Cabramatta? Yes?---Yes, I do recall him. Okay. And were you, are you aware that during January and February 2011 Mr McNamara had been seconded to assist Mr Lalich, having taken leave without pay from your office?---No. 10 Does that mean you have no real awareness of what Mr McNamara may have been doing or you have some positive recollection?---The recollection I have is the recollection I have testified to today. Mr McNamara did not report to me and I was not responsible as Premier of the State for overseeing his day-to-day work activities. You wouldn’t have a clue whether he was there in January and February in your office or off with Mr Lalich on leave without pay, would you?---Well, I certainly do remember having discussions with Mr McNamara so he must have been around at some point. 20 On some basis or some capacity some time. Correct?---Yes. Thank you. THE COMMISSIONER: Any other questions of Ms Keneally? Yes, Mr Strickland. MR STRICKLAND: Yes. I appear for Mr Roozendaal. My name is Strickland. Can I just ask you, the Westminster Convention is that when 30 you go into caretaker mode you don’t make any decisions. Is that right? ---That’s correct. It’s a matter for the incoming Government?---Yes. And do you recall that that caretaker period began on 4 March, 2011? ---I certainly do. Now, you gave evidence to Counsel Assisting that the issue about the Mayfield Site I think you said did not occupy the whole of Government 40 perspective because there was an inquiry of the electricity privatisation? ---And various other matters of Government, yes. That inquiry, by that are you referring to an Upper House inquiry into that issue?---Yes. And that was in, that occupied January/February in 2011. Is that right?

01/09/2014 KENEALLY 6696T E12/2107/0821 (JAMES)/(STRICKLAND)

---My recollection from – I can’t recall the dates of the inquiry but my recollection is that time was quite taken with the issues of electricity privatisation and the campaign. In other words that, those two issues occupied the vast majority of Government time and energy, is that right?---Certainly for the Premier, yes. And you would imagine for the Treasurer as well in terms of the privatisation?---Absolutely for the Treasurer, yes. 10 Yes, thank you, Commissioner. THE COMMISSIONER: Anyone else? No. Anything Mr White? MR WHITE: No questions, thank you, Commissioner. THE COMMISSIONER: Nothing, Mr O’Mahoney. MR O'MAHONEY: Nothing, Commissioner. 20 THE COMMISSIONER: Thank you, Ms Keneally, you may stepped down you’re excused?---Thank you. THE WITNESS EXCUSED [2.10pm] MR WATSON: I call Ian McNamara, Commissioner. 30 THE COMMISSIONER: Thank you, Mr McNamara. Mr James, I take it you’ve explained to Mr McNamara the effect of a section 38 order? MR JAMES: I have and we’re seeking one. THE COMMISSIONER: Right. Mr McNamara, you should appreciate that the order that I can make under section 38 of the Act protects you from the use of your answers against you in civil and criminal proceedings but does not protect you if it should be found that you’ve given false or misleading evidence. Do you understand that?---Yes. 40 Pursuant to section 38 of the Independent Commission Against Corruption Act, I declare that all answers given by this witness and all documents and things produced by this witness during the course of the witness’s evidence at this public inquiry are to be regarded as having been given or produced on objection and accordingly there is no need for the witness to make objection in respect of any particular answer given or document or thing produced.

01/09/2014 KENEALLY 6697T E12/2107/0821 (STRICKLAND)

PURSUANT TO SECTION 38 OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION ACT, I DECLARE THAT ALL ANSWERS GIVEN BY THIS WITNESS AND ALL DOCUMENTS AND THINGS PRODUCED BY THIS WITNESS DURING THE COURSE OF THE WITNESS’S EVIDENCE AT THIS PUBLIC INQUIRY ARE TO BE REGARDED AS HAVING BEEN GIVEN OR PRODUCED ON OBJECTION AND ACCORDINGLY 10 THERE IS NO NEED FOR THE WITNESS TO MAKE OBJECTION IN RESPECT OF ANY PARTICULAR ANSWER GIVEN OR DOCUMENT OR THING PRODUCED. THE COMMISSIONER: Do you wish to be sworn or affirmed, Mr McNamara? MR McNAMARA: Sworn please. 20 THE COMMISSIONER: Can he be sworn, thank you.

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<IAN McNAMARA, sworn [2.11pm] MR WATSON: Are you Ian McNamara?---Yes, I am. Now, Mr McNamara, just by way of background you had worked as a staffer, political staffer for Mr Tripodi when he was Minister for Ports from about April 2007 up ‘til November 2009?---Yeah, that’s correct. 10 You had worked as a political staffer for Mr Roozendaal from December 2009 until June 2010?---Yes. In circumstances which I’ll ask you about - - -?---Ah hmm. You were moved from Mr Roozendaal’s office to the Premier’s office Mrs Keneally’s office in June 2010 where you remained until election day? ---Correct. Now during that time, Mr James has just asked some questions, during that 20 time at Mrs Keneally’s office you did have some time out, is that right? ---Yeah, that’s correct. From around mid January I took leave without pay um, to work on the election campaign for Mr Nick Lalich the Member for Cabramatta. Was he the Member or was he actually seeking election? Had he previously been a Member?---Yeah, he was elected in a by-election in 2009. All right. So you were working for Mr Lalich as what?---Oh his campaign manager. 30 And during that time were you called back in by Mr Roozendaal to do some work?---Oh yeah, I received a phone call during this period that Mr Roozendaal was worried about how the costings process was running on the Government selection commitments and um, he asked well insisted that I, that I come back to help out I was quite reluctant ‘cause I still had a campaign to help out but he, he believed that that was necessary at the time, um, and I expressed to him well if that was what was required then the Labor Party office was comfortable with that then obviously I’d be keen to help out. 40 And so do you remember when that was that you went back and did some work for Mr Roozendaal?---It would have been very early in February. And February 2011?---2011, yeah, that’s correct. Well I just want to get a bit of background, you know of the company Buildev?---Yes.

01/09/2014 McNAMARA 6699T E12/2107/0821 (WATSON)

How did you come to know of them?---I first come to know of them when I was working the Ports portfolio they were one of the bidders for the um, the Mayfield site that was put out to market by Regional Land and Management Corporation later the Hunter Development Corporation um, we originally – well that’s how to come to know of them anyway. You got to be careful here because we’ve been using these terms maybe incorrectly as far as you’re concerned but we’ve been using them in a particular way, we call the Mayfield site the actual harbour front side?---10 Mmm. Was that the site that you were referring to just then or were you referring to the HDC Intertrade site?---The site that was put out in 2007 was the entire site including both the front and rear section. All right. So there were two big blocks one land block and one harbour front?---That's right. But it was put out in one tender for the entire site. All right. And so you’d become aware of Buildev at that time?---Yes. 20 I should ask you did you ever build up a personal relationship with any of these people from Buildev?---Not through that process they, I was actually opposing them being awarded the tender at that stage. Well, did you ever build up a personal relationship? I’ll give you an example. One way that we test these things, were you ever invited out to the Buildev box to State of Origin or - - -?---No. - - - Super Rugby or anything like that?---No, unfortunately not. 30 And did you ever have Mr Williams, did you know Darren Williams?---Ah, I’d run into him at a, I believe at a conference, it was a 2008, 2009 or a dinner I think it was before one of the conferences. Did you have his mobile number?---No, he’s not someone I was close to. Or did he have yours?---Oh, he may have gotten it from someone, I don’t know but it - - - 40 But there was no private contact between you, you and Mr Williams? ---At that stage? Ever?---Not that I – oh, I mean he might have called me at one stage but not that I can recall.


It’s not a trap. What about David Sharpe, did you know him better or, or worse than Mr Williams?---Oh, I didn’t even recognise Mr Sharpe when I saw him in the paper the other day. All right. I take it that means you knew him even less than you knew Mr Williams?---Yeah, I think so. But you did know Joe Tripodi, you were pretty close to him?---Yeah, I worked for him for three years. 10 And when we know about it Mr Tripodi left the Ministry Mr Roozendaal became the Minister for Ports?---I think Mr McLeay became Minister for Ports when Mr Tripodi stepped down. So sorry, you’re absolutely right. Mr Tripodi was the Minister for Ports, then Mr McLeay and then Mr McLeay left the Ministry and it went on to Mr Roozendaal?---Yeah, that’s correct. Were you working for Mr Roozendaal when he was Minister for Ports? ---No, I wasn’t. 20 Did you work for Mr McLeay when he was Minister for Ports?---No, no, I didn’t. When Mr Tripodi left the Ministry he remained obviously as the backbencher, the Member for Fairfield?---Correct. Did you remain close to him?---Yeah, I still dealt with him in local politics and I had a good relationship with him. 30 And I mean the two of you, let’s put it this way, the two of you, you would have regarded him as a friend?---I got along well with him, yeah, that’s right. And he certainly is somebody whose mobile number you had and he had yours and we’ve - - -?---Yeah, absolutely, yeah. - - - seen plenty of traffic between the two of you, Mr McNamara. But after Mr Tripodi left his Ministerial position did he talk to you about his life in politics, what was left of it?---Oh, yeah, we would have had, it would have 40 come up in conversation. For example it’s one of those funny things, I mean, people like yourself, staffers, knew the last day you were going to be employed was Saturday, 26 March, 2011, you knew that for some long time before is that right?---Oh, well, I suppose we would have hoped otherwise but yeah, we all expected to lose our jobs.


But at some stage Mr Tripodi had decided not to recontest Fairfield and he would have told you about that?---Yes. And did he ever talk to you about his plans, what he was going to do post-Parliament?---Ah, nothing in particular but um, he had talked of um, you know, general, in general terms about it. Well, in particular did he ever speak to you about his interest in working in respect of a new coal loader?---Oh, he’d spoken to me in terms of ah, being interested in working in the port sector um, and given his experience in that 10 area and I believe on one occasion he’d mentioned that it might be something that would be interesting. Can you speak into the microphone?---Oh, sorry. We’ve got really rotten acoustics here. So on one occasion he may have mentioned something about what?---Ah, that it might have been something interesting to um, to work on. What, what’s that?---Oh, the, the coal terminal. 20 We’re talking now about the Mayfield one?---Oh, I’d imagine so, that was the – being, it would be interesting to be involved in building something new like that, like the new coal terminal. And do you remember when he was having this conversation with you whether it was before or after he had left Parliament?---Oh, it would have been before, before he left Parliament. And was it long before he left Parliament?---I can’t, it would have been late 30 2010 roughly. Mr Tripodi made it clear to you that he was involved somehow with the people at Buildev didn’t he?---Ah, yes, yeah. And how did he first introduce that to you?---Ah, I remember I got a. a phone call from, a phone call from Mr Tripodi asking if I had time to catch up with him in his office um, and when I went over there ah, Mr Williams was ah, was there, I thought he must have been winding up a previous meeting but ah, he asked me to come in and um, and have a chat. 40 Well, I’ll just get you to step back a second. Mr Tripodi rang you and asked you to come to his office?---That’s my recollection, yeah, he contacted me. And his office in Parliament House?---Ah, correct. He wouldn’t have had one in GMT at that stage?---No, not at that stage, no.


So you were probably located in Parliament House and could wander - - -? ---Oh, I was probably at Governor Macquarie Tower but it’s just down the street. In any event you said that Mr Williams was there, is that Darren Williams from Buildev?---Ah, yes, correct. And you by that stage already knew him?---I’d met him once or twice before, yeah. 10 And was there anybody there apart from the three of you?---Ah, I believe Mr Sharpe’s given evidence that he was there, I can’t remember it particularly but I don’t dispute that. Right. Well, I’m going to get you shown an exhibit now, Exhibit Z58 if I may. Before we open it up I’ll just try and get from you your best recollection. You said that Mr Tripodi called you, you went to the office. Do you have an independent recollection of when this was?---Ah, not particularly, no. I remember it was during October/November period and understand there’s, you know, I’ve been going through the exhibits and 20 trying to keep up and it looked like it was around um, early November. All right. Well, if you hadn’t seen documents you would have thought it was October/November- - -?---Somewhere in that area. - - -2010?---Yeah. But you have seen documents. I’ll show it to you now in Exhibit Z58, page 91. You’ll see there that’s the end of an email chain. The start of the email chain is in the second half of the page where David Sharpe writes to a 30 number of people, “Summary, Ian McNamara re Ports Land.” Do you think that’s a record of this meeting to which you’ve referred?---Um, yeah, it looks like it, yes. Well, we can see from the date of it the email’s been sent on 2 November, 2010, but that doesn’t mean it’s the day of the meeting, it could have been any time before that?---I accept that. But before we go to anything that’s contained in there, did Mr Tripodi give you any warning that people from Buildev were going to be there?---No, I 40 definitely wasn’t expecting anybody to be there. And did Mr Tripodi give you any warning as to the subject matter of the meeting?---I don’t believe so, no. When you went into the meeting, and we’ll try and exhaust your recollection- - -?---Ah hmm.


- - -no doubt there were some introductions or re-introductions in the case of Mr Williams perhaps?---Sure, yeah. And then there would have been a discussion about why they were there, why you were asked to join them. Can you try and tell us what was said? We’re not holding you to exact words, we’re not silly about it?---Um, broadly speaking um, they put to me their, their idea that they were, they had an idea of building a coal terminal on the land that Buildev controlled, the Intertrade Industrial Park or that rear section of the Mayfield Site um, as you, as you refer to it um, and basically just seeking my views on where this 10 fit in. Ah, I believe ah, there were some concerns um, that they were aware of about Newcastle Port Corporation having worried about how this fit in with the Hunter Coal Export Framework and they were asking um, whether or not I thought this fit in based on my experience working on the, the reforms ah, previously. That thing that you said, Hunter Coal Framework Agreement, we’ve been calling that the Coal Chain Agreement. Are they the same thing?---Sure, yeah. 20 And so they were, they, you said, presumably Mr Williams- - -?---Mr Williams, yeah. - - -and maybe Mr Sharp?---Ah hmm. They were the they, in other words, they were expressing that- - -?---Sure, yes. - - -fear about the Coal Chain Agreement? Well, do you know what role you were supposed to have, what you were being brought in for?---Um, no. 30 I felt a little bit ambushed by, by the meeting um, I was a little bit cautious about what I explained to them, but more or less it seemed like they wanted to bounce um, the idea and see if it’s something, whether I thought it was a stupid idea or something that might be able to fit within the Government’s policy framework. Did anyone explain to you why they were in Mr Tripodi’s office?---No. And did Mr Tripodi tell you anything then or after the meeting about why they were in his office?---Ah, he may have mentioned, not that I can recall 40 but I imagine it would have been along the lines of they’d approached him on the basis that he was the Ports Minister at the time. All right. If you look at that page 91 of Exhibit Z58 you’ll see some things there which are really, by now, we’ve been doing this for a few days, we know what they mean. I mean we can read it ourselves?---Ah hmm.


It was pretty stock standard advice, I’m not suggesting you weren’t expert in offering it. These are the things you were telling them?---Ah, well, the note, the notes that are down here um, look more like the ah, conclusions that Mr Sharpe has taken off the back of the discussion. Um, the only things that I put to them at the time were ah, I guess the concern, so when I read through these things it would have been raising the issue of whether or not, you know, from the Government’s perspective we’d be concerned about whether or not there would be sufficient ah, rail capacity um, safety issues um, it would obviously any coal terminal that got up, if it was, if Government was happy with that would need to fit in with the overall coal framework, the 10 logistics chain um, and also the probity issues that would have been involved, given the fact that PWCS and NCIG were never given the opportunity to bid for the original site for the purpose of a coal terminal. All right. Well, see, that was a rather large issue, that Port Waratah and NCIG are really really big players in the area. Is that so?---Yes. And when the Mayfield Site came up as an entirety it wasn’t put on the market as a potential coal terminal. Is that so?---Yeah, that’s right, it was not, yeah. 20 And so if this thing, just imagine for the moment, if it was to be converted, so that we’ll discard everything that’s gone before and allow a coal terminal to be built there, would it in your view have had to have gone back to market?---Oh, it definitely had probity concerns around it and my expectation would be that it more than likely would have to go back out or Buildev would need to surrender the land and either go back out for a public tender or potentially for direct dealings with um, Port Waratah Coal Service who neighbours that site. 30 All right. Now, if we look at page 92 it gets down so that 14 points are made, but you know, when I look at it I really just can’t see the point of interference with the Coal Framework Agreement or Coal Chain Agreement. Do you notice that? Are you confident that you raised that issue with them?---I believe that was the primary issue that they were concerned about at the time. I mean a lot of these issues are linked back into, the linkage to rail capacity um, working with the other industry players, these all reflect issues around the Coal Chain Agreement. They’re all particulars of the overriding issue was the- - -?---Essentially. 40 - - -effect on the Coal Chain Agreement. Is that right?---Correct, yeah. If we look at page 92 there is a reference to “Ian and Eric are meeting Gary Webb on Monday?”---Ah hmm. Now, you’re obviously the Ian?---Ah, yes.


And we know who Eric is. Did you give them that information?---Ah, no ah, they brought that um, either Mr Tripodi or Mr Williams, I was quite surprised that they knew about it at the time. Had you made a provision for such a meeting with Mr Roozendaal? ---Ah, I’d been asked to attend a meeting by Mr Roozendaal with Gary Webb and Newcastle Port Corporation. And so you, do you say you are not the source of that information? ---Ah, yeah, that’s right. 10 Who else apart from Gary Webb presumably, yourself and Eric Roozendaal would have known of such a meeting, perhaps his PA?---Oh, I’d imagine so, yes. Or his Chief of Staff?---Sure, yeah. And that’s about it?---Oh, as I understand it, Mr Tripodi and Mr Roozendaal had been discussing the Coal Chain Framework at that time. 20 And what made you think that?---Oh, I’d been told as much when I was invited to the meeting. This is the meeting with- - -?---With Gary, and Mr Roozendaal had explain that he’d been talking to Mr Tripodi about the issue um, when I was invited to the meeting. Sorry, so you heard that Mr Roozendaal and Mr Tripodi had been talking about it at the time you attended the meeting with Gary Webb?---Ah, yeah, that’s, when I was being invited to that meeting, yes. 30 All right. And what were you told about the connection or the contact, the extent of it, between Mr Tripodi and Mr Roozendaal on the issue?---I was just aware that they, they were talking about it, Mr Roozendaal had sought advice or Mr Tripodi had approached him given his role as the former Ports Minister in the area. When you went to the meeting in Mr Tripodi’s office with people from Buildev did they have anything with them in terms of drawings or details or proposals?---Not that I can recall, no, it was- - - 40 Sorry?---I was just going to say, it wasn’t a formal meeting as such, I don’t even think I sat down, it was like 15 minutes. Well, soon after that meeting you must have had the meeting with Gary Webb?---Yes, I think the date was 8 November, as I understand it.


Right. And so you’re getting that from some of the records which have been produced to the Commission?---Correct. Is that so?---Yes. Well, on the occasion of that meeting was it in Mr Roozendaal’s office at GMT or Parliament House, do you recall?---Yes, in the boardroom, yeah. Sorry, which one, GMT?---Governor Macquarie Tower in the, in the boardroom. 10 And were you the only three there, that’s yourself, Mr Webb and Mr Roozendaal?---I remember Liza Carver was present. And she was?---Ah, she was a lawyer from Gilbert & Tobin. Do you recall whether Sam Crosby might have been present at that meeting?---I can recall vaguely there was a couple of other people present but it was really myself, Gary Webb and Liza Carver who were participating in discussion. 20 Right. And- - - MR STRICKLAND: I couldn’t heard that. I’m sorry, Commissioner, I just did not hear that answer. MR WATSON: It was really myself, Liza Carver, and who was the third - - -?---Ah, Gary Webb. Gary Webb?---Yeah. 30 And Mr Roozendaal was there of course?---Correct, yes. Was he participating?---Oh, to some degree, but it was largely a discussion between the policy people. All right. And Liza Carver gave an explanation of the legal position did she?---Yeah, that’s correct, yeah, they ran through their concerns. On which issue?---On the – how a potential new coal loader would fit with 40 in the ACCC authorisation. And can you remember the gist of what she had to say?---Yeah, I mean they were quite concerned about it I mean - - - They being?---Gilbert +Tobin and Newcastle Port Corporation. I come at these – I’m not a lawyer, I come into them from a policy prospective and I found it confusing how it, how it wouldn’t work within the policy frame


work that Government had constructed at that stage um, and through the discussion it became clear that um, what Liza Carver was conveying was that it would be a material change in the original um, legal construction to have a new terminal come in which could create uncertainty and potentially industry players could withdraw their support and ultimately that could lead to the ACCC withdrawing their authorisation for um, the entire policy frame work. Would that be a bad thing?---Yes. 10 We’ve had a bit of evidence about the Coal Chain Agreement being a major infrastructure achievement. Do you dispute that?---Not at all. So at that meeting or following it did Mr Roozendaal ask you to speak to Mr Tripodi?---He did, I mean there was a debrief, um, Mr Roozendaal asked me to come to his office to run through what I understood which I ran through very similar to the issues I just explained to you then. Just pausing he asked you to come back to his office, this is after the meeting?---directly after the meeting into his, um, his actual personal office 20 as the Treasurer to explain my understanding of the meeting and how it went um, and as part of that he asked me to call Mr Tripodi and just give him a run through of my understanding of what had happened. Why?---Well he’d been seeking Mr Tripodi’s advice on as former Ports Minister and the Minister who put the frame work in place. Well why wasn’t he speaking to Mr Tripodi himself?---I don't know. Too busy?---I think he thought that I had some expertise and perhaps I could 30 relate to Mr Tripodi in that level, I’m speculating. All right. Well did you speak to Mr Tripodi about it?---Yes. Now over a period of time did Mr Tripodi give you more information about Buildev’s proposal?---Yes, he did. I think I was sent some legal advice in early November I believe by Mr Tripodi. Well what, what I’ll show you now is a document, just ask you whether you recognise it?---Yes, I do. 40 Is that some – look you recognise it. Where did you get it from?---It was amongst my records to do with this issue. Right. Well do you know who gave it to you?---I don't know for certain, I don’t have access to my emails from the time but I’m pretty certain it was, it was sent to me by Mr Tripodi or potentially Mr Williams.


Right. Darren Williams from Buildev?---Darren Williams from Buildev, yeah. Was Mr Williams in the habit of including you in documents?---No. In terms of the probabilities, lawyers like probabilities. Where do you think it came from?---I’m, I’m fairly certain it was Mr Tripodi but I can’t be categorical. Did Mr Tripodi ever explain to you anything about how he might be getting 10 documents or why he might be getting documents from Buildev?---I only knew from the previous meeting I had, obviously he was talking to Buildev and um, they’d obviously got his interest in the issue. I tender that, Commissioner. People who want to see it, Mr Neil and Mr Strickland will want to see it, there’s a couple of additional copies there but it’s the advice from Corrs Chambers Westgarth that’s already been in the evidence. THE COMMISSIONER: Exhibit Z67. 20 #EXHIBIT Z67 - ADVICE FOR BUILDEV GROUP – IMPLICATIONS OF ACCC AUTHORISATION OF CAPACITY FRAMEWORK ARRANGEMENTS AT THE PORT OF NEWCASTLE MR WATSON: What I’ll do is now I’ll show you another document. This one I’ll describe it as it’s coming over to you, it’s a letter addressed by Corrs 30 Chambers Westgarth, they’re a leading set of lawyers addressed the Hunter Coal Logistics Pty Limited dated 27 September 2010 and this one’s on a slightly different issue about advice that Hunter Coal Logistics received you see on the issue about whether the Newcastle Port Corporation could amend the tender that had been put out and which had been so far at least met by the consortium. Do you see that?---Yes. Do you know where you got this from?---Oh, I believe it would have been part of the same email, these were both filed together. 40 Right. And when you say that again the probability is from Mr Tripodi? ---Yeah, the same answer. I’ll tender that, thank you, Commissioner. THE COMMISSIONER: And sorry, what was that, the email? MR WATSON: No, this just the - - -


THE COMMISSIONER: Oh, sorry. MR WATSON: - - - letter of advice, 20 September, 2010. THE COMMISSIONER: Oh, sorry, letter of advice, Z68. #EXHIBIT Z68 – LETTER FROM CORRS CHAMBERS WESTGARTH TO HUNTER COAL LOGISTICS PTY LTD RE 10 ADVICE ON VARIATION BY NEWCASTLE PORT CORPORATION OF TENDER PROCESS ENTERED INTO WITH NEWCASTLE STEVEDORES CONSORTIUM DATED 20 SEPTEMBER 2010 MR WATSON: Did Mr Tripodi have a strong view about whether or not there were merits in the Buildev proposal?---Yeah, he thought it did have merits. 20 There was some discussion about the creation of an easement, do you remember that?---Ah, yes. And in terms of the creation of an easement from whom did you hear that, first hear that proposal?---Oh, it probably came up in the, in the discussion with Mr Williams in that meeting. The original meeting which was on or before 2 November, is that right? ---Sure, yes. 30 The idea of the easement was that it would be able to connect the landlocked Intertrade site - - -?---Ah hmm. - - - with the harbour front, is that right?---Correct. And what that would effectively do in practical terms was give a huge advantage to the owner of the Intertrade site, is that so?---It would give them the option of operating a port UCS. And so whoever owned the Intertrade site would get the benefit of the 40 easement, is that right?---If it was awarded to them, yes. Well, that’s right, I mean just assume the easement was created, what it did was it created access for the Intertrade site?---Correct, that was the intention. And well, just looking at that proposal the owner in effect of the Intertrade site was Buildev?---Ah, yes.


So the creation of such an easement could only ever benefit one party and that was Buildev, is that right?---Oh, well, ignoring if there was a public interest to it but yeah - - - Oh yeah, sorry, I’m talking about - - -?--- - - - yes, it would benefit them. Yes?---Yes. Now you had some other discussions with Mr Tripodi from time to time 10 about this issue, is that so?---Yes. What I’ll do is I’ll just show you a couple of notes. Did you sometimes take, did you sometimes make notes to yourself for your own purposes when you’d had a conversation with Mr Tripodi?---Oh, on occasion if there was something I needed to, thought I might need to remember. So that it’s clear there two sheets of paper and one’s headed “Coal loader proposal”, is that right?---Yes. 20 Now why did you create this note?---Sorry? Why did you create this note?---It was just a note of ah, what I understood was proceeding, just to keep track of ah, the issue. Was this as a result of a, a conversation?---Ah, yes, this was the result of a conversation with Mr Tripodi. And do you now know when you had the conversation?---Ah, all I know is the, the date was date stamped ah, 25 November. 30 And this note came from the file date stamped 25 November, two thousand and - - -?---Oh, 2010, yes. Yes. And so if we think about it it’s got to have been made either that day or before it?---Yes. And if I just go through the coal loader proposal when you were making these notes I want you to tell me why you’re writing it down, whether it’s something that Mr Tripodi told you. The first one is “Government has 40 sought advice from Warwick Watkins and HDC regarding probity.” Do you see that?---Yes. Was that something that you knew and told Mr Tripodi or was it something that he knew and told you?---Oh, I think I can pretty safely say these are the things that were being told to me. Right?---Yes.


These are coming from Mr Tripodi?---Correct. So if the name Warwick Watkins was used it came from Mr Tripodi?---Yes. The next one is about the claims of the proponent, I take it that that’s Buildev?---Ah, yes, that’d be my understanding. And then the third bullet point is Buildev wishing to make a written submission outlining how their proposal relates to the development 10 agreement?---Correct. This is all coming from Mr Tripodi is it?---Yes. And the next one is that Government will be seeking probity advice, see all of that?---Yes. And the final one is “NPC”, that’s Newcastle Ports Corporation, is to postpone any decisions which would preclude this development going ahead, do you see that?---Yes. 20 Well did you know anything about that, Mr McNamara, apart from what you were told by Mr Tripodi?---No. So that information must have come from Mr Tripodi?---Well I as I understood it he was um, discussing these issues with Mr Roozendaal. And so was that issue raised with you separately, that is the NPC postponing decisions?---Not that I can't recall. 30 The other file note is headed “Newcastle Stevedores negotiation”, that’s of course a reference to the Consortium?---Ah hmm. Then there’s a reference to the Consortium and the first bullet point and then a variation and then there’s a third bullet point about a revision to the plan. Do you see all of that?---Yes. Now the fourth is that there were concerns raised that this may constitute anti-competitive behaviour on the part of the NPC. Whose concerns were they?---Oh, I guess they were Buildev’s or Mr Tripodi’s. 40 Mr Tripodi’s?---Yeah. Did you ever hear any of these things echoing back from Mr Roozendaal?---Um, no not, not about anti-competitive behaviour by Newcastle Port Corporation regarding this.


And then there’s a reference to a board meeting as planned for this week to consider the revised submission by Newcastle Stevedores. Did you know that yourself?---No. We’ve got evidence that it’s very clear that on the 25 November 2010 NPC board was meeting to consider a revised submission by Newcastle Stevedores. You didn’t know that apart from what you were told by Mr Tripodi, is that right?---Not as far as I can remember. Do you know where Mr Tripodi could be getting his information about what 10 was planned at board level of Newcastle Port Corporation?---Only, only thing I was aware of at the time was he was talking to Mr Roozendaal about the issue. Well if I, I should have done this earlier take you back to the coal loader proposal and seen these things that for example the fifth bullet point and the postponing the decisions did you hear any echo back along those lines for Mr Roozendaal?---Oh I may have discussed these with him afterwards to check his understanding but I can’t recall anything specific. 20 Now would you please I need to take you to a particular document. Could the witness be shown Exhibit Z10. Z10 page 15. You’ll see that this is something which is an email, it was prepared by Mr Sharpe and it’s something to do with a meeting we now know was stimulated by a meeting which occurred on 19 November 2010. Mr Tripodi was there but unfortunately he can’t really remember much about it but there is this reference in the second bullet point on page 16, it says, “Both Joe Ian say argument put forward is unfounded and they believe the ACCC agreement allows for what we are planning.” Now we think the Ian is you, Mr McNamara. Do you dispute that?---Well it could be I didn’t writ eh 30 document but - - - Could I ask you this, did you go to the meeting in Newcastle?---No. I was about to say you probably don’t’ remember it because it was by helicopter but then again - - -?---I think I’d remember that. - - - some of us forget those sorts of trivialities. But you’ll see there that there’s a suggestion that you were saying that something about the ACCC agreement, that’s the Coal Chain Agreement of course?---I’d imagine. I 40 mean there was um, based on the date that the discussion I’d had with Mr Williams et cetera was prior to this so there might have been verballing discussions from there um, like I said at that, at that time I didn’t see that there was an issue with the how it fit with the Government’s policy on a coal terminal but I definitely would have made comment on the ACCC side of things.


THE COMMISSIONER: you definitely, sorry, would?---Well I would have looked at it from the policy perspective not from an ACCC authorisation and these notes were after I had the discussion with um, Gary Webb and Liza Carver as run through earlier. Well you’ll see in the top bullet point there’s a reference to Gary Webb providing legal opinion from Tobins. Now we know that’s the firm Gilbert + Tobin. Could you have been that source of that information to Mr Tripodi? That was something Mr Roozendaal had asked you to relay back to him as I understand it?---Yeah, sure, yeah, had a discussion with Mr 10 Tripodi after the meeting with Liza Carver from Gilbert + Tobin. All right. Mr McNamara, during the time that Mr Tripodi was passing over documents from Buildev or telling you these things did you ever ask him Joe, why are you doing this, what’s in it for you? Did you ever ask him about that?---Not in particular, no. Well what do you mean not in particular? That sounds like you did to a degree?---I, I think he, he, his way of putting it he was just helping out as a former Ports Minister and it wasn’t, it wasn’t a frequent occurrence it was a 20 couple of phone calls and a, and a meeting. All right. But then just taking it a bit further there was the conversation where Mr Tripodi told you that he might be interested in developing a new coal loader. Remember we discussed that earlier?---Yeah, he said it’s something that might be interested to work on, yes. And when was that ion this context, was it about this time, that’s November 2010?---Around then, maybe a little bit later. And a little bit later it was perhaps while you were off with Mr Lalich or 30 was it when you were back with Mr Roozendaal do you remember?---Oh, I think it was in 2010 so it would have been before that. All right. Anyway so what happens is – sorry, I’ll tender those file notes, Commissioner. THE COMMISSIONER: Yes. Exhibit Z69. #EXHIBIT Z69 - FILE NOTES 40 MR WATSON: I should have asked you this about the file notes the, apart from any date stamp that you saw on them putting the date stamp aside does it accord with your recollection that they were conversations that you’d had with Mr Tripodi in about November 2010?---Yes, it seems about the right time, yes.


Now when – you then went off to Mr Lalich but you were called back in to Mr Roozendaal’s office, we’ve got that as common ground, okay?---Yeah. Did you have another meeting with Mr Roozendaal, this one, one there was there a Treasury official involved?---No. There was a reference in the evidence to a meeting occurring on 4 February, Dominic Schuster presented a paper, we know Mr Crosby was present and we know Mr Roozendaal was present. There has been a suggestion not a certain statement but a suggestion that you may have been there. Do you 10 think you were there?---I wasn’t at that meeting, no. Right. You know that there is a Treasury advice that’s been prepared by Mr Schuster?---Ah hmm. Is that answer yes?---Yes I’m aware of the Treasury advice, yes. And we’ve got information that somehow or another that Treasury advice got into the hands of a journo Matt Kelly at the Newcastle Herald and do you know anything about that?---No. 20 Apart from these proceedings did you ever have a copy of the Treasury advice?---I can recall being a copy, been given a copy of some sort of PowerPoint Treasury advice - - - This one did take the form of a PowerPoint?---Yeah, that’s right. I remember been given an unusual document by Mr Roozendaal after the Mayfield issue that concluded. After the Mayfield issue concluded?---Yeah, after the – we’d finished 30 dealing with it in that period in February. All right. So why did he give it to you?---For filing, just to put it with the rest of the documents. And so where had he been holding it apart from the filing it?---I don't know, in his office. I mean aren’t these things filed straight away?---Some times, I don’t - - - 40 So he had it and he gave it to you?---Yeah, I think I was given two or three documents. You would have heard about the leaking occurring. When you were given the document was it after the leak had occurred?---It may have been, I think so. I wasn’t particularly aware of the leak occurring at the time.


I’ve got to ask you, I’ve got to ask you, Mr McNamara, did you leak that Treasury document?---No. Did you have any relationship with Buildev which might induce you to leak a Treasury document?---No. And did you I mean have any relationship with the Newcastle Herald? ---Um, no. Did you dislike or have any antipathy toward Jodi McKay?---I actually like 10 Jodi McKay. Did you have any very strong feeling that, that the best thing for New South Wales was that Buildev get an opportunity for that easement across that land and the opportunity for a coal terminal?---Oh I was sympathetic to the idea of getting the rear section of the site returned for Port use but I believed that would probably best be done through PWCS if that was to, if that was to occur. Well are you saying - - -?---So not sympathetic towards Buildev, no. 20 THE COMMISSIONER: Sorry, you said sympathetic towards returning the rear of the site. Are we talking about the Intertrade Site, are we?---Yeah, to port use, that’s something I worked- - - To port, to port use?---Yeah, that’s- - - Which would mean going through the, you said which would mean going through the PWC, was it?---PWCS, if it was to be a coal terminal. 30 MR WATSON: Port Waratah. THE COMMISSIONER: Yes, thank you. THE WITNESS: It was something we worked on for quite a period. The original Ports Grown Plan intended for the entire Mayfield Site to be used for port-specific use rather than general warehousing and um, and commercial as it was leased out to Buildev for. MR WATSON: Do you know who leaked the Treasury document?---No. 40 Have you got any idea about it? I mean has there been any gossip around Macquarie Street about who leaked it?---Um, the only thing I heard at the time was um, I can’t remember if it was at that time or shortly afterwards, was Mr Crosby um, got a mouthful from the Treasurer about it. Right. So Mr Roozendaal was blaming Mr Crosby, was he?---Well, that’s my understanding, yes.


Did Mr Roozendaal get along with Mr Crosby?---Ah, not particularly well, no. Was Mr Crosby, in your experience, he would have been around working with Mr Roozendaal on Ports at that very time. Is that right?---Ah, he’d, he’d gone to work on the um, central campaign for the February/March period in 2011. Right. And did Mr Roozendaal ever comment to you about Mr Crosby’s 10 approach to the Mayfield issue?---Ah, he, he wasn’t comfortable with the way he was working on it, he didn’t think he was looking at it. Well, tell us what that means. This is Mr Roozendaal wasn’t comfortable with it?---Yeah, he was disparaging about Mr Crosby and wasn’t satisfied that he’d ah, been looking at the issue. Right. And what did that mean?---Oh, he’d been dismissive on it and had simply taken what Newcastle Port Corporation had said and failed to progress the matter at all. 20 So is this a fair summary. Mr Crosby was dismissive of the Buildev proposal and Mr Roozendaal was dismissive of Mr Crosby?---Sure, yeah. There were other things which Mr Roozendaal asked you to do, is that right, in terms of an advice from Mr Schuster, remember that?---Ah, yeah, that’s right um- - - Or a letter, sorry, a draft letter?---Ah, yes. 30 Now, I’ll show you a letter, this is also already in evidence, Commissioner, it’s been seen a few times, but I’ll make copies available for Mr Neil and Mr Strickland. You’ll see that it’s a typical Minister’s letter to the CEO of a state-owned corporation. Do you see that?---Yes. Now, you’ll see that it’s described the contact as Dominic Schuster?---Yep. But Mr Schuster has told us that he did a draft letter which you had asked him to redo. Have you read Mr Schuster’s evidence in that respect? ---I have, yes. 40 Do you dispute it?---I don’t understand that he was asked to redraft a letter, he was asked to draft a letter, that’s correct. Well, he, he says, as I understand his evidence, that if you look at the letter, that there was some particular form of words which you asked to be placed into a second draft in the third paragraph, being, “I am advised by New South Wales Treasury that it’s not appropriate.” See that?---Ah, yes.


Now, that’s very familiar language to anybody who’s seen Ministers’ letters?---Yes. Relying upon advice from others. But Mr Schuster suggests that that request to insert those words came from you, Mr McNamara, do you wish to say anything about that?---Ah, my recollection was I was um, I was asked to seek advice from Treasury given the change in circumstances which was the Mayfield Site being put back out on public exhibition and to seek advice from Treasury and the Treasurer’s view was that given this um, the site 10 should not um, negotiations shouldn’t proceed while it’s on exhibition and that if that was the case for Treasury to draft up a letter saying “I am advised by Treasury that it shouldn’t proceed at this stage.” So it sounds to me as though the Minister had an opinion- - -?---Ah hmm. - - -and was requiring Treasury to say that they advised him? MR STRICKLAND: I object. That’s not a fair premise at all from, from, from the evidence nor is it a fair premise when one looks at Exhibit Z42, 20 page 73. THE COMMISSIONER: Well, can’t we put the proposition and see if the witness agrees with it or not? MR STRICKLAND: But, Commissioner, if one looks at Z42, page 73, it’s just inconsistent. I mean the Treasurer – and it’s also inconsistent with Mr Schuster’s evidence. THE COMMISSIONER: Well- - - 30 MR STRICKLAND: Mr Schuster gave evidence about this. THE COMMISSIONER: Well, it might be, Mr Strickland, but there’s a lot of evidence in this inquiry which is inconsistent with other evidence. That doesn’t mean the proposition can’t be put? MR STRICKLAND: But it was Mr Schuster’s evidence – and I don’t want to feed the answer, Mr Schuster’s evidence wasn’t ever challenged on this point. He’s given – Mr Schuster gave evidence about the formulation he 40 used- - - THE COMMISSIONER: Yes. MR STRICKLAND: - - -without, without any intervention by the Treasurer, so the premise for that question in my submission is unjustified and it’s unfair.


THE COMMISSIONER: Well, I don’t know, that’s how I understood his answer, but that’s a matter for submissions I suppose. But I mean at the end of the day, how one construe’s the witness’s last answer might not be inconsistent with the proposition Counsel’s putting. MR WATSON: Sorry, I’ll withdraw that. THE COMMISSIONER: All right. MR WATSON: Did you talk to Mr Roozendaal about what he wanted in 10 the letter?---Ah, yes. And what did he – was there something he said he wanted in the letter? ---Ah, he asked to seek advice and his view was that it wouldn’t be appropriate to proceed while it was on exhibition and if that was the case to get a letter drafted, I am advised by Treasury. I’m happy to answer the other question if- - - I’d like you to but Mr Strickland doesn’t. But I press it. 20 THE COMMISSIONER: Well, perhaps we can approach it this way, Mr McNamara. The phrase, “I am advised by New South Wales Treasury,” was that an expression that came directly from you or was it one that you were instructed to put in there?---I was asked to seek advice on this basis, but just to be clear, it’s not unusual at all for Ministers to have views on things- - - Yes?--- - - -and to put that to a Departmental official, as I understand it, Mr Schuster’s even given evidence to say that he wasn’t comfortable with the position as it was original put and reformulated the language to something 30 that he was comfortable with, and the letter that was drafted is for the signature of the Treasurer so he’s entitled to put whatever he wanted into the final letter- - - Yes, I understand that?--- - - -as long as he’s not misrepresenting the original brief. So he wasn’t required to take a position in his brief at all. MR WATSON: All right. I tender it. THE COMMISSIONER: This letter separately? 40 MR WATSON: Yes. THE COMMISSIONER:


#EXHIBIT Z70 - DRAFT LETTER FROM ERIC ROOZENDAAL TO GARY WEBB RE PROPOSED DEVELOPMENT FOR THE MAYFIELD SITE MR WATSON: That decision by Mr Roozendaal to put the site on hold, did that come as a surprise to you?---Ah, well, he had been quite adamant about progressing the issue, he was hopeful of getting an announcement on the coal terminal prior to that. 10 And why was he eager to get an announcement out about the matter? ---He thought it was a goods news announcement getting the private sector to fund infrastructure in the region. Was that the coal terminal or the container terminal?---Ah, the coal terminal. So Mr Roozendaal was trying to get it out there about a coal terminal? ---He, he thought it would be a good announcement, yes. 20 And, but this thing had been designated as a container terminal, all the work by the NPC had been on that basis, isn’t that right?---Sorry, could you run me through that again? Well, let’s put it this way. If Mr Roozendaal was going to announce the construction of a coal terminal- - -?---Ah hmm. - - -who, who was going to be the contractor?---Of the coal terminal? Yeah?---Well, it would depend on what came out of the Government 30 process so - - - They’re the questions that I had for Mr McNamara. THE COMMISSIONER: Mr McNamara, I just have a further question and I’m sorry if I don’t, if I haven’t understood your evidence but you said that when you were initially called into Mr Tripodi’s office and Mr Williams was there - - -?---Ah hmm. - - - Mr Sharpe may have been there you said, in effect Mr Tripodi was 40 asking you to be a sounding board for the, for the coal loader proposal on the Intertrade site, the Buildev proposal that Mr Williams was, was putting, you were being asked in effect - - -?---I was asked my opinion on it, yes. To ask – all right?---Yeah. He was asking your opinion. You, you then said that after the meeting with Mr Webb and the solicitor from Tobins and Mr Roozendaal, Mr Roozendaal


asked you to call Mr Tripodi to give him a rundown of the meeting, is that right?---Ah, yes. And at some point you said that you came at this from a policy perspective not a legal perspective - - -?---Ah hmm. - - - but that you understood after the meeting with Mr Webb and the solicitor from Tobins that the strong view they had was that the ACCC agreement was in some jeopardy if this coal loader proposal went ahead, was that your understanding?---Ah, yes, I suppose to clarify um, they 10 weren’t disputing it from a policy perspective they just couldn’t fit in but should parts of industry object to a new terminal they could withdraw their support for the agreement - - - From the agreement?--- - - - to the ACCC - - - That’s right, right?--- - - - and on that basis they could, it could result in the ACCC withdrawing its support. Right?---But it wasn’t clear that that would be the outcome but - - - 20 No, no, but that, that was - - -?---It was a concern. That was what was said at the meeting?---Yes, that was my take up on that. Well, my question was when, when you called Mr Tripodi to give him this rundown did you convey to him that that was the substance of the, of the discussion that was had at that meeting with Mr Webb and, and the Tobins’ solicitor?---Ah, yes. 30 Yes. Any questions for Mr McNamara. MR WATSON: I should have asked this as well. In doing this work on what seemed to be related to Buildev did – what did you understand was your role?---My role, well, oh, in the Premier’s office one of my responsibilities was ports um, in my former allocation I’d been asked by the, the Treasurer and Minister for Ports to provide an opinion um, based on my experience with the ah, putting the original Coal Framework Agreement together. 40 You just heard I’m sure Mrs Keneally give evidence that she received no report from you?---Ah hmm. And is that answer yes?---Ah, yes. It’s just you tend to say that thing, we need an answer?---Yes.


And it seemed or the implication of what Mrs Keneally was saying I felt was that she had no idea that you were doing this?---Mmm. Do you dispute that? Did you speak to her about it?---Ah, no, I didn’t. I mean it wasn’t something that I was spending a great deal of time on and it’s far from unusual to have a portfolio Minister to ask you for some advice or assistance on a, on a matter, particularly where it’s one that you’re allocated and responsible to and ah, I didn’t report directly to Ms, Ms Keneally on many issues at all. 10 When Mr Tripodi was working on it and during the time that he said he was interested in getting work in the future on building a coal loader you understood he was talking about the Buildev project didn’t you?---Ah, yes. Did that present a conflict of interest?---He didn’t say he was seeking work from them, he just – it was more of a musing that it might be something interesting to work on. What, he was going to do it for free was he?---He was, you know, he thought it would be an interesting thing to, to work on I suppose potentially 20 to get a job but I’m not aware of him progressing that matter at all. Well, is that a conflict of interest when you’ve got a Parliamentarian who is doing that work for Buildev and then one eye focussed on the constituents of Fairfield and the other one on their future? MR NEIL: I object to that?’ MR WATSON: I’ll withdraw that. 30 THE COMMISSIONER: Yes. Does anyone have any questions for Mr McNamara? Yes, Mr Neil. MR NEIL: Commissioner, I have an application for a short adjournment so I can take instructions. There’s a documents we haven’t seen. THE COMMISSIONER: Right. Well, okay, can I ask if anyone else has any questions of Mr McNamara? MR STRICKLAND: I do and I would say I have the same application as 40 my learned friend. THE COMMISSIONER: Anyone else have any questions for Mr McNamara? No. All right. MR WATSON: Could I just say we’re really running out of time and we’re talking about an adjournment, it should be five minutes with respect.


THE COMMISSIONER: Well, I wouldn’t have thought it would take very long so can we say 20 past, oh, no, that says 3.00, mine’s a bit fast, quarter past 3.00. Thank you. MR WATSON: Thank you, Commissioner. SHORT ADJOURNMENT [3.03pm] 10 THE COMMISSIONER: Yes, Mr Neil. MR NEIL: Yes, thank you, Commissioner. Could I ask if the witness might be shown Exhibit 69. Now, Mr McNamara, my name is Neil and I act for Mr Tripodi, do you understand that?---Yes. As I understand your evidence the one headed “Newcastle Stevedores 20 negotiation” has a date stamp of 25 November, is that so?---Yes. Now does the second headed “Coal loader proposal” have the same date stamp or none?---No, both the same, yes. Thank you. Are they part of the same document?---Ah, no, they’re two separate documents but from the same time. Were they prepared at the same time do you know?---I would imagine so, yes. 30 And where would you have prepared them?---Ah, it would have been in the Premier’s office, I would have been typing them up on the computer. And what file would they have gone onto?---What do you mean, sorry? What file would they have gone onto?---The file that I saved them in. Would they have gone onto any departmental record?---Ah, no, it wasn’t a departmental record, it was just notes for my own recollection. 40 Well, why did you prepare them?---Ah, because ah, I’d been informed what was happening ah, as often happens people let the Premier’s office know and I just made a note because the issue might come up in future. Were there a number of sources that you had been involved in obtaining information from prior to 25 November such as information that the meeting with Mr Webb, Ms Carver and Mr Roozendaal?---Ah, that meeting was

01/09/2014 McNAMARA 6723T E12/2107/0821 (NEIL)

specifically about legal advice from Gilbert & Tobin and their concerns around the ACCC agreement. When you first got involved in this did you inform yourself from public information or from other persons than Mr Tripodi of any of the matters that put down into these notes?---Ah, no, I hadn’t involved myself in it, I’d been invited to one meeting by Mr Tripodi and invited to one meeting by Mr Roozendaal. How much if we take the one coal loader proposal, if we take that one, how 10 much of the – I withdraw that. Of the five dot points there are you able to say whether or not you received all of those dot points from Mr Tripodi or possibly from another source?---All of them from Mr Tripodi, these are notes from a conversation with him. Notes for a conversation with him?---From a conversation with him. From a conversation. Is this the one you say Mr Williams was at?---No, this was a telephone conversation. 20 And when was this telephone conversation?---It would have been on or about 25 November I’d imagine. When you’d received this information did it occur to you to convey this information to any other person?---Ah, I’ve already given evidence, I may have discussed it and just checked this direction with the Treasurer but I can’t recall specifically doing that. Well, the one that’s headed “Newcastle Stevedoring negotiations” - - -? ---Yeah. 30 - - - was that information that appears on that page derived from the same conversation that you had with Mr Tripodi on the telephone?---Ah, yes. Was any of this information in either two of the documents derived from the original discussion that you say you had with Mr Tripodi in his office? ---Ah, no, I don’t believe so, no. Were you in these notes proposing to set out the status of such information as you had as of 25 November?---Sorry, I don’t understand your question. 40 Were you proposing to set down in these notes the status of the information you had on this topic as at 25 November, 2010?---Ah, yeah - - - THE COMMISSIONER: You mean other from - the state of his knowledge other than derived from the conversation with Mr Tripodi or, or as derived from the conversation with Mr Tripodi?

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MR NEIL: The state of all of your knowledge that might have been derived from Mr Tripodi and other sources?---Ah, no, if that was the case I would have been making notes regarding the ACCC agreement and the advice I’d received from the meeting with Gilbert & Tobin and Newcastle Port Corporation. Now if you look at Exhibit Z67, would you look at that please?---Yes. By what means do you say did – you have seen this on some previous occasion did you, did you say in evidence?---Ah, yes. 10 Now by what means did you see it? Was it sent to you? How did you get it?---Um, my recollection is it was emailed to me. Have you got any record of the email?---Ah, no, I don’t have access to my emails from Government. Who, when did you first see this in respect of these proceedings?---Sorry? When were you first shown this in regards to these proceedings?---Oh, I 20 think it’s one of the exhibits but it’s a document that I had. You had, where did you have it? Where did you keep it?---It was in my files from the time. And the exhibit Z68, is that a document you received at some time from somebody?---Which document’s that sorry? Sorry, if the witness could be shown Z68, it’s the one dated 20 September, 2010?---Ah, yes, yeah. 30 THE COMMISSIONER: It’s the letter. MR NEIL: The letter. Do you recall the circumstances in which you first saw that?---Ah, my recollection is they were both emailed to me together, they were both filed together. THE COMMISSIONER: You mean together with 67?---Ah, yeah, the two pieces of advice would have been sent at the same time I would imagine. 40 MR NEIL: Well, what’s your best recollection as to when you got them? ---Well, it looks to me that they were, it was a follow up to the meeting that Mr Tripodi invited me to in his office. Now these – just going back briefly to Z69 do you have the email records of – that came – I withdraw that. They’re your own, have you ever made any email record of those even to yourself?---I’m sorry?

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Have you ever made – we’ve seen here people sending emails apparently to themselves?---I, I don’t have - - - Did you ever do an email record of these documents even to yourself?---Ah no, I mean I don’t have access to my emails from Government. I can’t access my old records. I see. All right. Pardon me. Exhibit Z67, could you look at that again please?---Yes. 10 Could you have received that from the Minister’s office?---No. No further questions, Commissioner. THE COMMISSIONER: Mr Strickland. MR STRICKLAND: I act for Mr Roozendaal. My name is Strickland. To your knowledge did Mr Roozendaal regard Mr Tripodi as being knowledgeable on Ports matters?---Yes. 20 In particular on the Newcastle Ports Corporation matters?---Yes. Is it the case that in the late 2010/early 2011 from your knowledge the Treasurer was under a lot of political pressure in relation to privatisation matters?---Yeah, sure, yeah. And you talked about that with him, is that right, from time to time? ---Oh, not in particular, I wasn’t involved in that issue but I’m sure - - - 30 I understand?--- - - -he may have raised it at some point but it wasn’t something I was involved in. Did you observe that he, or did he say anything to you that he was become a bit risk averse in terms of making anything, any decision that might be regarded as controversial?---That’s not something that I can remember, no. I just want to ask you some questions about your knowledge of the Mayfield Site issues?---Ah hmm. 40 You knew, didn’t you, up until the election that the proposal in relation to a coal terminal- - -?---Ah hmm. - - -was that such a coal terminal would coexist with the NPC container terminal proposal?---Ah, yeah. I’m not aware of um, any proposals that the container terminal would not go ahead as Government policy.

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Okay?---And um, all, all of the documents and information I received regarding the proposal for a coal terminal was the intention it would coexist with the container facility. Could the witness please be given Exhibit Z63. If you could just go, please, to page – is yours paginated?---There’s numbers in the, in the corners. Just to go page 24?---Yep. And that should be Extraordinary Board Minutes, this is for NPC, held on 8 10 February, 2011. Is that what you’ve got?---Ah, yes. Just read to yourself could you- - -?---Ah hmm. - - -the second paragraph, beginning “New South Wales Treasury presented?”---Ah, yes. So were you aware that on or around 4 February, 2011, the Treasurer had approved NPC commencing formal commercial negotiations with Newcastle Stevedores Consortium?---No. 20 MR WATSON: No, I object to that. You’ve got to read on. MR STRICKLAND: I’m about to, I’m about to read the entire paragraph? ---Ah, no, I wasn’t. Were you aware that that was, in those negotiations, Newcastle Port Corporation should make provision for an easement across the Mayfield Site for a coal- - -?---Sorry, I missed the first part of the question. 30 I’m just, I’m following on this particular memo. THE COMMISSIONER: You’re just being asked whether you were aware of those matters that are set out in that paragraph, Mr McNamara?---No. MR STRICKLAND: Just the last sentence is what I want to draw your attention to?---Ah hmm. Because you gave some evidence about what the Minister said about an announcement. What’s recorded there is, it was understood that the 40 Minister was to make an announcement to this effect, that refers to the previous paragraph but would not refer to the easement. Were you aware of that?---No, that’s not something I remember. That is that, were you aware that the Minister, the, the, the decision was the Minister was to make an announcement that NPC could commence formal commercial negotiations with NSC. Were you aware of that?---No.

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That’s what the announcement was. Any discussion you’ve had with the Minister about an announcement was to that effect, wasn’t it?---Was to which effect, sorry? Well was to the effect that NPC should commence formal negotiations with NSC? THE COMMISSIONER: Are you saying that they, that that was the subject of all discussions Mr McNamara had with Mr Roozendaal? 10 MR STRICKLAND: What I’m asking were you aware, were you aware from any discussions you had with Mr Roozendaal that that was the relevant accouchement to be made?---I was aware that they were proceed the negotiations, yes, if that’s what you’re asking. See ‘cause I understood what you said before we had a short break was that there were, sorry, I’m a bit distracted by my, the echo, were you aware – you said before the break that there was discussion with Mr Roozendaal about announcing a coal terminal. Do you remember saying something like that?---Yes. 20 You don’t mean making an immediate announcement do you?---I don’t, I don’t mean to say that he was keen to award a contract to Buildev but he was interested in it as um, you know if this was progressing to consideration that the Government would look at it through a process, that that would be a good announcement that the Government was seeking to provide more infrastructure funded through the private sector. You mean that, that subsequent announcement would be made after various processes were in fact gone through, is that right?---That a process might be 30 set up to consider it, yes. I see. I mean were you aware that one of the processes was that the Treasury advice had gone off to referral to public, to consultancy, are you aware of that?---No. If that was so based upon your knowledge of Government any consultant’s report would have to be considered by Treasury wouldn’t it normally?---If, sorry. 40 That’s all right. I’ll go back a step. You were aware weren’t you that there was a Treasury advice which you have been referred to that which is the form of a slide presentation?---Ah hmm. Do you understand that?---I’m aware of that document, yes. Yeah. And the Treasury document refers to preliminary conclusions - - -? ---Sure.


- - - made by the Treasurer?---Ah hmm. If you take it from me there is evidence that the Treasurer then directed that there should be consultants retained to consider that matter in more detail? ---Yeah, I’ve seen the exhibits that were presented earlier, yes. And the evidence of Mr Schuster that was quite a normal thing for the Treasurer to ask (not transcribable)?---Sure. I wasn’t at the meeting where that occurred but I’ve read it in the exhibits, yes. 10 The normal procedure would be once the consultants have completed their report the Treasury would look at that consultant’s report itself?---If they commissioned I’m sure they’d look at it. Indeed. And then a budget committee minute would be prepared for both, for a Cabinet or Cabinet subcommittee to consider that wouldn’t it? That would be the normal process?---Maybe, this is all hypotheticals. Well but that’s what I’m, that’s exactly what I’m getting at. The, the – what 20 you described as the announcement of in relation to a coal terminal co-existing with a container terminal that would only, that’d only likely to have happened after those, all those processes had been gone through. Do you agree with that?---Yeah, and nothing proceeded past preliminary advice as far as I’m aware. Now could the witness please be shown Exhibit Z42. THE COMMISSIONER: While that’s coming, Mr McNamara, I just wanted to ask you in any of the meetings that you were invited into or any 30 discussion you had with Mr Tripodi was there ever any reference to proceeding or progressing the coal loader terminal by way of an unsolicited proposal or working within Government guidelines?---It may have but it’s not something I can remember in particular. All right. MR STRICKLAND: Could you just go to page 70 in Z42?---Which page, sorry? 40 Page 70?---70. Yes. And just inviting your attention to this press release to remind you that there was an announcement wasn’t there that there was to be further, a further consultation period in relation to the Mayfield site proposal?---Yes. And Ms McKay announced, she welcomed that decision but following her request of the project be subject to further consultation, correct?---Yes.


Now it was only following that that you were – that announcement I’ve just referred you to that you had a discussion with Mr Roozendaal which led you going to the Treasury to, to draft the letter which you, you’d been shown, is that right?---Yeah, that’s correct. Now could you just go in the same exhibit to page 73?---Yeah. Now page 73 – I’ll withdraw that. I’ll get you to look at 72 first that’s the letter you, that’s the letter you were shown wasn’t it which is now Exhibit 10 Z70?---Yeah. And just after that letter is page 73. Now you’re familiar with that type of document aren’t you?---Yeah, it’s a Treasury Briefing Note. Indeed. And a Treasury Briefing Note which would ordinarily come with such a letter, is that right?---Yes, routine. Routine indeed. Can you see in this Briefing Note under the heading “Key Points” have you got that?---Yes. 20 The fourth, just read the fourth, well, I’ll read it to you, the fourth dot point is, “It would not generally be appropriate for more formal commercial negotiations to proceed on the Mayfield site while there was uncertainty regarding the ultimate land use. Any announcement preferred proponent may also appear to pre-empt the extent of the consultation process.” To your knowledge they are the views of the author of this Briefing Note aren’t they?---I think - - - MR WATSON: No, no, no, they just appeared there by magic. What’s the 30 point of this, Commissioner? Is it a reading competition. THE COMMISSIONER: I don't know. Anyway we do, we, we appreciate the point but can we, can we put - - - MR WATSON: It’s a positive case. THE COMMISSIONER: Can we put the proposition to Mr McNamara because he can see the document. So what’s the question? 40 MR STRICKLAND: Commissioner, my learned friend made some snide remark about the question but it is fundamental. THE COMMISSIONER: Anyway look - - - MR STRICKLAND: It is a fundamental rebut of the allegation against the Treasurer.


THE COMMISSIONER: Well all right. Is this your Briefing Note, Mr McNamara?---No, this sis Dominic Schuster’s Briefing Note. Right. MR STRICKLAND: And you didn’t direct him to create that Briefing Note did you, they’re his words not yours are they?---I did request a Briefing Note on behalf of the Treasurer but they’re the words of Dominic Schuster and it’s his Briefing Note. 10 And to your knowledge it’s his opinion, is that right? MR WATSON: Oh my God we asked it a second time. THE WITNESS: Yes. MR STRICKLAND: Perhaps Counsel Assisting wouldn’t open the way he does making allegations which are not, which are baseless when one looks at this document. 20 THE COMMISSIONER: Well I don't recall any specific opening that said that the Briefing Note was a fraud or that it wasn’t the genuine opinion of some Treasury official. MR STRICKLAND: Commissioner, that’s the - - - THE COMMISSIONER: It wasn’t about that it was about the formulation of the words in the letter. But anyway let’s go on - - - MR STRICKLAND: Indeed but I’ll move on. 30 They’re my questions actually. THE COMMISSIONER: Yes, Mr James, anything arising? MR JAMES: No. THE COMMISSIONER: Mr Watson? MR WATSON: No. 40 THE COMMISSIONER: Thank you, Mr McNamara, you may step down you’re excused?---Thank you. THE WITNESS EXCUSED [3.37pm]


MR WATSON: I call Eric Roozendaal. MR JAMES: Commissioner, I have no positive case that I am going to be making if there some such matter (not transcribable) THE COMMISSIONER: You’ll be notified, Mr James. MR JAMES: Thank you. And I’ll leave my contact number with (not transcribable) 10 THE COMMISSIONER: Yes, thank you. UNIDENTIFIED SPEAKER: Just give one minute (not transcribable) THE COMMISSIONER: Mr Strickland, I take it Mr Roozendaal knows about the effect of the section 38 order and he wishes to take advantage of one? MR STRICKLAND: (not transcribable) 20 THE COMMISSIONER: Mr Roozendaal, do you appreciate that the order protects you from the use of your answers against you in civil or criminal proceedings but does not protect you in the event that it should be found that you’ve given false or misleading evidence to the Commission? MR ROOZENDAAL: Yes, Commissioner. THE COMMISSIONER: Pursuant to section 38 of the Independent Commission Against Corruption Act, I declare that all answers given by this witness and all documents and things produced by this witness during the 30 course of the witness’s evidence at this public inquiry are to be regarded as having been given or produced on objection and accordingly there is no need for the witness to make objection in respect of any particular answer given or document or thing produced. PURSUANT TO SECTION 38 OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION ACT, I DECLARE THAT ALL ANSWERS GIVEN BY THIS WITNESS AND ALL DOCUMENTS AND THINGS PRODUCED BY THIS WITNESS 40 DURING THE COURSE OF THE WITNESS’S EVIDENCE AT THIS PUBLIC INQUIRY ARE TO BE REGARDED AS HAVING BEEN GIVEN OR PRODUCED ON OBJECTION AND ACCORDINGLY THERE IS NO NEED FOR THE WITNESS TO MAKE OBJECTION IN RESPECT OF ANY PARTICULAR ANSWER GIVEN OR DOCUMENT OR THING PRODUCED.

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THE COMMISSIONER: Do you wish to be sworn or affirmed, Mr Roozendaal? MR ROOZENDAAL: Affirmed please, Commissioner. THE COMMISSIONER: Thank you. Can we have the witness affirmed.

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<ERIC MICHAEL ROOZENDAAL, affirmed [3.39pm] THE COMMISSIONER: Yes, Mr Watson. MR WATSON: Are you Eric Michael Roozendaal?---Yes. And when did you first become aware that Mr Tripodi was meeting with the people from Buildev on the Mayfield site issue?---Some time I think 10 between September and October 2010. And in what circumstances did you become aware of that?---I believe that ah, Mr Tripodi um, spoke to me about the ah, proposal at some point. And so he, it was he who told you he was meeting with Buildev. Is that right?---I don’t – that’s quite possible, yes. THE COMMISSIONER: Did you say sometime between September and October 2010?---Yes. 20 Does that, does that encompass the whole of those two months?---Yes, yes. MR WATSON: And so when he told you – look, there was no trap in the previous question, what I wanted to know was this. Was Mr Tripodi meeting with Buildev as a result of something you did or your suggestion? ---No. It was off his own bat he came to you and explained he had been speaking to Buildev?---Yes. 30 And did he tell you how he came to know of Buildev?---No. And what did he tell you he was doing with them?---Um, he was, he was, well, he was advocating in a sense ah, for their proposal. Which proposal was that?---Ah, for ah, a potential coal loader on, on the Intertrade Site. And when you say advocating, did he present you with any papers that they 40 had provided to him?---He, he may have. I don’t recall a specific instance but he may have. And advocating in what sense, he thought you should look at it or should go ahead with it?---Ah, I believe he thought it had some merit and it was worth investigating.

01/09/2014 ROOZENDAAL 6734T E12/2107/0821 (WATSON)

And so what did he explain to you was that merit?---Um, that it was something worth investigating, it potentially could generate some, very good returns for the state in terms of royalties, and that it wasn’t inconsistent with Government policy. I appreciate that it may not be inconsistent with Government policy, I can appreciate the argument anyway, about a coal loader being there, but what was it about Buildev and its proposal that he was advocating?---Well, it was just that they had that particular site, the Intertrade site, and they were um, considering a coal loader for that site. 10 So was the position advocated by Mr Tripodi one where the Mayfield site should be used preferably for a coal terminal or a coal and container terminal or was Mr Tripodi advocating for Buildev’s proposal?---Well, the proposal that, that ah, I understood that we were talking about was one that allowed both a container terminal and a coal loader with conveyor belts. And which other companies apart from Buildev did Mr Tripodi suggest should be invited to be involved?---None. 20 Well, why not?---Well, it was only that Buildev had that particular site and we were talking about that particular site, the Intertrade Site. But we’re talking about here something which is underpinned, you identified, by a broader public policy. Why wouldn’t that be thrown open to all comers?---The way it occurred was that a proposal was effectively brought forward ah, by Buildev in relation to their site and we activated a process or I activated a process to judge the merits of that proposal. But that only involved one company in the whole of the world, Buildev. 30 Am I right?---Yes. Does that sound like good policy, good Government policy to you to have a major infrastructure project like this and consider it only through the context of one medium-sized Newcastle building company?---Well, they were the only company that, that had ah, the lease on that particular site and it was specific to the Intertrade, Intertrade Site. But don’t you see the absurdity of this? Even Mr Tinkler himself laughed at the proposition that Buildev could build such a large piece of infrastructure. 40 Didn’t you see that yourself?---Well, that would have been one of the issues that Treasury would have assessed. It wasn’t for me to judge that. Well, it is for you to judge as to whether or not it’s worthwhile spending more of the public’s money on investigating an issue as to whether a proposal from one medium-sized Newcastle building company should all of a sudden upset plans held in state-owned corporations and build a fourth


coal loader at the Port of Newcastle, surely?---Oh, I don’t accept the premise of that question, Mr Watson. What, you thought it was money well spent by the New South Wales people to investigate the rights or wrongs of a proposal which came from Buildev, a middle-sized Newcastle building company?---In the initial meeting I had with Buildev ah, Mr Tinkler attended as well, so I got the impression Mr Tinkler was involved with Buildev. I thought it was appropriate to investigate the proposal that Buildev had brought forward. 10 THE COMMISSIONER: What was it about Mr Tinkler’s involvement in Buildev that tipped the balance in favour of the proposal from your point of view, Mr Roozendaal?---Ah, well, clearly Mr Tinkler is a key player in the coal industry ah- - - Was?---Oh, I’m sorry, was, he was then. Um, secondly ah, if he was involved with Buildev and he had an interest in Buildev, that would, I would have thought that would have given them some financial strength, and I thought if they bring forward a proposal it’s appropriate that we at least consider it. 20 But you see before you ever got to that mark didn’t you recognise that it meant that Buildev were reneging on the agreement which they’d made with the Hunter Development Corporation over the Intertrade Site?---There was a difference – Buildev had a view that they put to me that they could under the agreement with um, the Hunter Development Corporation, they could look at this project um, that wasn’t an issue that I, I had a strong view on and I thought it was appropriate that those sort of questions should be checked by Treasury. 30 Well, hold on, Hunter Development Corporation had a strong view on it, didn’t they?---I don’t understand the question. Hunter Development Corporation had a strong view on it, didn’t they? ---I don’t believe I received correspondence directly from Hunter Development Corporation that I can recall. Are you saying that you did not even check with Hunter Development Corporation whether the premise for this project was available. Is that what you’re saying?---That would have been an inquiry I would have left to 40 Treasury. Well, sorry, why should the people of New South Wales be funding this if you’re not even checking with the basics, that’s whether it was available to Buildev from the point of view of the state-owned corporation, HDC? ---I think it’s important when you get a large proposal brought to you, a potential hundreds of millions if not billions of dollars of investment, that


you have a proper process to review it um, and I thought it was appropriate that Treasury do that review. But what do you mean by that? You knew that there was proposals put in place of the same value of the same size in relation to the container terminal, didn’t you?---Ah, well, the proposal that was put to me allowed both the container terminal- - - No, I’m talking about the- - -?--- - - -and the coal loader. 10 - - -original proposal between NPC and NSC. If it was a container terminal alone it was still a huge infrastructure project for the people of New South Wales and particularly the people of the Hunter. Correct?---I wouldn’t have called it huge, no. All right. Okay. So what’s so huge to you, a billion, a billion plus?---Yes. So what did you understand was the value of the Anglo Ports Consortium bid for the container terminal, how much money was at stake?---Um, I believe it was around $200 million. 20 $200 million?---Yes. Did you check that?---(No Audible Reply) Did you do anything to check that?---I believe that was one of the discussions- - - No, did you do anything to check that?---I believe it was one of the discussions I had with NPC was to the value. 30 All right. Okay. So you were going forward on the idea that the container terminal was only a $200 million project. Is that right?---Yes. And so what was it that then told you, was it just simply the difference, a billion plus project versus a $200 million project, that told you one was better than the other?---I didn’t make a judgement on, on which was better, I just thought if there was another project that could exist, coexist with the container terminal, that was something worth examining. 40 Well, what if any other Tom, Dick or Harry just walked in, well, let’s put it, some medium-sized building company from Newcastle just walk in and say, hold on, we want to put a $3 billion coal terminal on the site, would you have said, golly, that’s even bigger again, we’ll look into that?---Potentially if they, if they could come to an agreement with the leaseholders that would have been something we would have looked at then, yes.


That when sort of credit were you giving to the efforts of Gary Webb and his team at NPC?---I don’t understand what you mean by credit. Well, you must have listened to what they had to say?---Yes. And what did they tell, did they say yes, go ahead with Buildev?---What was explained to me - - - No, answer my question. Were they saying yes, go ahead with Buildev? 10 MR STRICKLAND: Commissioner, I think he was trying to answer. THE COMMISSIONER: Yes, go on, what was the, what was the response? THE WITNESS: My impression from Gary Webb was that he was extremely hostile to the Buildev proposal. MR WATSON: And so what sort of attention did you pay to the basis for Gary Webb’s opinion?---I listened to his opinion. I convened a meeting with Gary Webb and Buildev and allowed them both to have a frank 20 discussion so I could hear both sides of the story. I then had a separate meeting with Gary Webb and Gilbert & Tobin to hear his view on the ACCC and I weighed those issues up in my mind. All right. Okay. Well, you must have known that by the time Gary Webb had come to speak to you that the NPC had been looking at this for years? ---I understand there’d been several attempts at a container terminal on that front port site, yes. And you must have understood that millions and millions of tax payers 30 dollars have been spent on getting feasibility studies, environmental studies, economic studies and the like. MR STRICKLAND: I object, I just don’t know of any evidence that it was millions and millions of dollars. MR WATSON: Yes, it was called the evidence of Gary Webb. THE COMMISSIONER: Anyway, whether you quantify it or not Mr Roozendaal, you were aware, I take it, because indicated that the container 40 terminal proposal had been alive for some time that there must have been a considerable raft of studies undertaken in relation to that proposal?---Yes, yes. MR WATSON: And you would have known that they cost millions of dollars?---I’m not sure what the cost was.


Tell me this, what did you think at the time that you were making this decision on behalf of people of New South Wales, what did you think you were pushing aside, how much money?---I’m sorry, which decision are you referring to? Well, when you’re saying no, look, I’m not going to follow Mr Webb’s opinion, how much money do you think had already been spent by the people of New South Wales in having that opinion formulated?---I didn’t say I wasn’t going to follow Mr Webb’s opinion. 10 Well, you do know don’t you, that a decision was made, a direction was given by you that Mr Webb and the NPC were not to announced their agreement with the consortium, you know that don’t you?---Yes. At the time you made that decision, how much money did you think had been spent by NPC in trying to work out the best solution for that site for the people of New South Wales and Newcastle?---I had not given thought to that. Why not, you were after all, Treasurer?---Because the proposal – basically I 20 had a choice of two proposals before me. One, was a container terminal that I felt was a marginal project and the other was an untested coal loader proposal and I thought it was appropriate to activate a process to get advice on both projects. Who told you it was a marginal project?---Um, that was something that was put to me, certainly by Buildev - - - Right.---?- - - and it was also supported by my own understanding of containers in New South Wales. 30 Okay. So your source of information was Buildev, that’s the first one?---Yes. Right. Did you think, Mr Roozendaal, that Buildev was an unbiased commentator on such a matter?---Not at all. Right, okay. Wouldn’t you say, well, hold on, I’ve got to put that to one side, that’s just got to be discarded, wouldn’t you do that?---I think you, you take, if have a proponent, clearly they have a perspective, you weigh that up 40 when they put forward an argument. It was certainly one of the issues that was discussed with Buildev and Gary Webb together in the room. I thought those issues needed to be aired but I did understand there had been I think three attempts previously to get a container terminal going at Newcastle and that it was an economically marginal project at best. All right. Well, hold on, I’m just focusing on my question.---Yes.


So you say that you treated, and this is the first thing you mentioned, a complaint by Buildev or a comment by Buildev as being a critical issue in your determination, correct?---Not a critical issue, it was an issue that I considered - - - All right. The only other one you named was your own experience with ports.---Yes. What about - - - 10 THE COMMISSIONER: Actually, Mr Watson, it wasn’t that, he said my knowledge of containers in New South Wales so, it might be separate from his knowledge of ports, I don't know. Mr Roozendaal, as at the time that you were weighing these two proposals, how long had you been Minister for Ports?---This time round, September, since September 2010. And what about previous - - -?---I’d been, I’d been the Ports Minister since, Ports Minister for six months I think from the end of 2004 into 2005. So for six months plus the month or so before you - - -?---Yes. 20 - - - looked at these two proposals?---Yes. And was the sole source of your information about the movement of containers in ports?---Ah, that – well, yes. All right. Thank you. MR WATSON: Right. So they were the two things that you relied upon in coming to a view that the container terminal was an economically marginal 30 project, is that right?---There was also advice from NPC that I received I believe on 22 October that also echoed that it was a marginal project. Didn’t - - - 22 October what year, sorry?---2010. Are you saying that Gary Webb was telling you that the container terminal was, what, economically undesirable?---No, that’s not what I said. 40 MR STRICKLAND: I object. THE COMMISSIONER: No. Well, it was you say – that advice that supported your conclusion that the container terminal was marginal, is that what you say, economically marginal?---Yes. That was one of the, one of the pieces of advice that underpinned my view, yes.


MR WATSON: What did Gary Webb tell you on that front?---Well, ah, to the best of my recollection um, they’d gone through an EOI process ah, I think it’s telling that at the end of that EOI process - - - No, no, no, you tell me what Gary Webb said to you - - -?---Well, this is - - - - - - which indicated to you that a container terminal at Mayfield was economically marginal?---Well - - - What did he say?---Well, are you talking either in writing to me or verbally 10 to me or both, I just want to be clear. THE COMMISSIONER: Well, you, you nominated the advice of 22 - - -> ---Yes. - - - October so what was it in that advice that led you to the view that it was - - - Well, that, that, I believe it was that advice and perhaps some additional advice I got, there was more than one, that they’d gone through an EOI 20 process, in that EOI process at the end of, at the send of seven proponents the best they could do was to go with the least unfavourable proponent which I think begins to ring concerns from a Treasurer’s perspective um, and that the original proposal - - - MR WATSON: Economically marginal, concentrate. THE COMMISSIONER: Sorry, I’m just a bit confused here. You said that there was some additional advice by way of the, what was it, process, what process was it that you said was undertaken?---Oh, from, I’m sorry? 30 Did you say the EOI process?---Yes, the EOI process that NPC - - - Expressions of interest?---Yes, I’m sorry. You said there was some additional advice that you obtained by way of the expressions of interest process, is that what you’re saying?---No, I’m saying NPC advised me, Gary Webb advised me I believe. Yes?---I don’t want to have any confusion about that advice. 40 Yes?---That at the end of that EOI process the best they had, the best NPC had was the least unfavourable proponent to move forward with, that they didn’t have a deal at that point, that there was discussions about the terms ah, and negotiations and that we were really talking I believe at best at about 200,000 TEU’s a year.


MR WATSON: All right. So are you saying that the net effect of what Gary Webb told you was him saying or writing that the container terminal at Mayfield was economically margin?---I felt that, I felt that you could - - - No, I’m asking you what he told you not what you felt?---Well, that’s the interpretation I took from our discussions with him, yes. Well, why?---Because - - - Didn’t, didn’t he tell you that the whole of the risk had been passed to 10 private industry?---Yes. Didn’t he tell you that as a result if it was accepted was massive payments to New South Wales?---I believe the NPD value was somewhere in the vicinity of, of $50 million, maybe $59 million. THE COMMISSIONER: Was that, sorry, you’ll have to tell us what value - - -?---Net present value, net present value - - - MR WATSON: Net present value?--- - - - of the project, yes. 20 Was that just a sneeze as far as you’re concerned?---Well, it’s – I’m just saying what it was. All right. Okay. Well, I mean, get to the point where it’s economically marginal. He was saying money was going to come roaring into tax coffers and - - -?---No. No, no, no?---No. 30 59 million, what, that’s just a sneeze is it?---No, that - - - MR STRICKLAND: Commissioner, that question – and I don’t want to feed the answer but in light of the 22 October, 2010 document is misleading. If one looks at the 22 October, 2010 document - - - MR WATSON: Oh, now you are feeding. MR STRICKLAND: No, I’m not. 40 THE COMMISSIONER: No, never mind. MR STRICKLAND: I’m not (not transcribable) MR WATSON: No. Well, my question was $59 million, is that a sneeze is it? THE COMMISSIONER: Well - - -


MR STRICKLAND: No, if you look at the terms of the document it’s inaccurate to put it that way (not transcribable) the document (not transcribable) THE COMMISSIONER: All right, all right, all right, all right. MR WATSON: Well I noticed we’re finishing for the day. THE COMMISSIONER: All right. 10 MR WATSON: Mr Roozendaal, before leaving Parliament did you do anything to your emails to destroy the emails which relate to the Mayfield issue?---No. Erased them?---No. Are you sure of that?---Yes. Clean them out so that they couldn’t be recovered, did you do anything like 20 that?---I didn’t really use email as a Minister. No, you answer my question?---No, I don’t, I don’t, no, didn’t do anything like that, no. Did you give any instructions to anybody else to do that?---No. Could you have done it and forgotten it?---I don't recall giving any instructions if, no. 30 All right. That’s – they’re all the questions for today until we come back tomorrow, Commissioner. THE COMMISSIONER: Yes, all right. MR WATSON: Before we rise there is something I wanted to tender. If you recall there was the documents which I tendered which reflected the – it’s Exhibit Z64 which reflected the advice received by the NPC from Gilbert + Tobin to the extent it was put in writing. 40 THE COMMISSIONER: Yes. MR WATSON: And what we’ve done is we’ve created a document which will redacts the advice. Now people can have a look at it but it’s not going to be very helpful to them except to show them who was giving it to who and when they were giving it. If are there other people apart from those two to whom I passed out underacted copies who feel that they do not need it could they write to Mr McKenzie the solicitor for the Commission and


briefly explain why and we’ll get the suppression order varied if there’s a compelling reason why they should get an underacted version. And there needs to be a slight variation to an order earlier made to allow those documents, those redacted documents to be tendered. THE COMMISSIONER: Well I’m sorry, in what, in what way does this, does this, sorry in what way does this differ from Z64? MR WATSON: It’s got – unless I’ve given you the wrong copies, it’s got heavy black marking when you look at the advice. 10 THE COMMISSIONER: Oh yes, yes, thank you. So sorry, this is the version that can go up on the intranet? MR WATSON: Yes. THE COMMISSIONER: All right. Well I’ll mark that Exhibit Z71. #EXHBIT Z71 - REDACTED VERSION OF EXHIBIT Z64 20 THE COMMISSIONER: So this becomes the redacted version of Exhibit Z64. MR WATSON: I’ll get people to look at the matters overnight. WE have Mike Fleming on the list we’re going to take him off. Again if somebody thinks he needs to be called they better give us a reason as to why. After Mr Roozendaal I was proposing calling Mr Hartcher and Mr Hartcher gave all his evidence last time and nearly all of it will be quite short. I was then 30 hoping to call Gary Edwards and Mark Regent might come along tomorrow afternoon, he’s on the list. THE COMMISSIONER: Right. Yes, Mr Neil. MR NEIL: Could I just ask, Commissioner, if either Mr Tripodi could be excused or if he is to come back could we get some indication so we can look at our diaries? MR WATSON: Sorry, I should say this, I’ve forgotten to do it, I just 40 wanted Mr Tripodi to be given the opportunity if he wanted to go back in the witness-box in light of any evidence given by Mr McNamara. THE COMMISSIONER: Oh right, well anyway he can take that on board otherwise he’s excused, Mr Watson, I take it? MR WATSON: Yes. All right. All right well we’ll adjourn to 10.00am tomorrow, thank you.


THE WITNESS EXCUSED [4.03pm] AT 4.03PM THE MATTER WAS ADJOURNED ACCORDINGLY [4.03pm]


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