THE most important corruption finding of the entire Operation Spicer report is against former Labor MP Joe Tripodi for misusing his position as a member of parliament to advantage the Newcastle construction company Buildev by providing it with a copy of a confidential Treasury document that was subsequently published by the Newcastle Herald.
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The Independent Commission Against Corruption finds on the balance of probabilities that the treasurer at the time in 2011, Eric Roozendaal, provided the report to Mr Tripodi – then a backbencher – but it also said it was not satisfied that he did so “knowing or intending” it would be passed to Buildev.
The situation surrounding the Treasury document – Review of Proposed Uses of Mayfield and Intertrade Sites at Newcastle Port – is included in a 30-page section of the 172-page ICAC report titled The Newcastle Container Terminal.
Tje commission said it was satisfied this was “serious corrupt conduct because Mr Tripodi was betraying his duties and obligations as a member of Parliament to favour Buildev for the purpose of achieving a personal advantage”.
“His conduct as a member of Parliament is likely to seriously impair public confidence in public administration and demonstrates a substantial breach of public trust,” the report says.
“The conduct could constitute or involve a serious criminal offence of misconduct in public office.”
A long-term coal framework agreement to manage congestion in the port had been overseen by former Liberal premier Nick Greiner and brought into being in 2009. Under this agreement, the next coal loader to be built was T4 on Kooragang Island, which has been approved but which remains unbuilt.
After the steelworks was shut, the 150-plus hectare site was split into two components, with one government agency, Newcastle Port corporation, holding about 90 hectares of waterfront land and another, the Hunter Development Corporation controlling 65 hectares near the old BHP administration building as the “Intertrade” site.
Mr Roozendaal was treasurer from September 2008 to March 2011 and therefore a shareholder in the port corporation.
In December 2008, the HDC agreed to lease the Intertrade site to the Buildev group – well-known at the time as a developer and commercial builder and headed by Darren Williams and David Sharpe.
Buildev had won a tender to develop its land as an industrial park but it 2010 it came up with what the ICAC described as a “radically different proposal” to build a coal loader.
The commission said entrepreneur Nathan Tinkler bought into Buildev in November 2008. Mr Tinkler told the ICAC he was only a “minority shareholder” in Buildev with 9 per cent of its shares but he effectively controlled 49 per cent of the company through a financing arrangement and the commission heard evidence that Buildev was in fact "controlled by the Tinkler Group”.
“Buildev’s objectives altered once Mr Tinkler bought into the company,” the report says.
With Mr Tinkler’s then company Aston Resources listed on the stock exchange and trying to develop the Maules Creek mine – now owned and operated by Whitehaven Coal – the ICAC heard that Mr Tinkler wanted the Mayfield site for a coal terminal.
The report notes that Buildev was a prolific donor to both sides of politics and was paying the ALP “at that time . . . about $100,000 a year”.
“Sensing a likely change of state government, Buildev involved itself in the 2011 NSW election campaign in many different ways in support of the NSW Liberal Party,” the report says.
By late 2010, the port corporation was well advanced on plans to develop its part of the steelworks site as a container terminal, and had chosen a consortium known as Newcastle Stevedoring Consortium, with Hunter and international partners, to develop a terminal.
This project would hamper Buildev’s attempt to build a coal terminal, which was a process that the ICAC says had long-term, medium-term and short-term aims.
Short-term, it wanted to stop the port corporation signing a contract on the container terminal.
Mid-term, it wanted to improve the viability of its proposal by having an easement to connect it by rail carved out of the port corporation’s land.
Long-term, it wanted to become the proponent of the Mayfield site, as well as the Intertrade land.
The commission heard evidence as to how Mr Tripodi and Mr Roozendaal helped Buildev in its efforts.
It heard Mr Roozendal as minister stopped the port corporation from negotiating with the container terminal consortium until Treasury had investigated the feasibility of its plans.
While he allowed the corporation to negotiate with the consortium in February 2011 he did so on the grounds that it make provision for the easement that Buildev had wanted.
But soon after telling the port corporation it could start negotiating, he withdrew that permission the same month.
“This effectively killed off any chance of advancing the container terminal before the NSW state election on 26 March 2011,” the ICAC said.
Despite their support for Buildev, the ICAC says of Mr Tripodi and Mr Roozendaal: “It is difficult to determine whether Mr Tripodi or Mr Roozendaal ever genuinely believed that the Buildev proposal was viable or one which would be for the benefit of the state of NSW.”
Even so, the ICAC says: “While Mr Roozendaal’s support for the Buildev proposal was contrary to the weight of the advice he received, the Commission is not satisfied on the available evidence that he was motivated by any improper purpose.”
On the Treasury report leaked to Newcastle Herald journalist Matt Kelly, the ICAC said the content was “sufficiently helpful to Buildev that it was provided to a journalist with a view to damaging the prospects of the container terminal and thereby promoting the Buildev agenda”.
Darren Williams told the ICAC he received the Treasury report at a meeting with Mr Tripodi and Ann Wills, a political adviser to Buildev, and that it was “most likely” that Mr Tripodi gave it to him.
Mr Roozendaal denied giving it to Mr Tripodi but the commission said that “realistically there were only two persons who could have provided it” – Mr Roozendaal or one of his staffers, Ian McNamara.
The commission said it was satisfied that Mr Roozendaal did pass the document to Mr Tripodi but he was a government colleague and the key breach was the one to Buildev “shortly prior to February 16, 2011”.
“The Commission is satisfied that Mr Tripodi could have been in no doubt of the confidential nature of the report. Each page of the report is marked confidential. Its contents were obviously confidential. The contents dealt with a substantial infrastructure project worth hundreds of millions of dollars. The Commission finds that, when Mr Tripodi provided the Treasury report to be provided to Mr Williams, Mr Tripodi was improperly motivated to provide an advantage to Buildev, thereby ingratiating himself with the management of Buildev in the hope he could secure future benefit from Buildev.”
The commission also heard that Jodi McKay’s position as Newcastle MP was a problem for Buildev, because she strongly supported the container terminal and because she had discovered soon after being elected in 2007 that Buildev had donated to her campaign and she would not meet with them “because she did not wish to be seen as having been prejudiced in Buildev’s favour”.
The commission report says there were conflicts between the evidence given by Ms McKay and by Nathan Tinkler over an approach Mr Tinkler made to her in March 2011, which Ms McKay reported soon after to the ICAC and electoral authorities.
Ms McKay told the commission that Mr Tinkler offered to support her campaign, saying she would find it hard against then Newcastle lord mayor John Tate, but she rejected his proposal, saying she could not take money from a developer.
She said Mr Tinkler’s response was that he had hundreds of employees and there were ways around the rules.
Mr Tinkler denied Ms McKay’s account, calling it a fabrication, but the commission said he was an unimpressive witness, while Ms McKay was “honest and open”.
On the “Stop Jodi’s Trucks” mailout that emerged early in the 2011 state election campaign, the commission heard that 8000 pamphlets were printed and mailed to residents in the six suburbs around the Mayfield site.
The commission says Buildev managing director David Sharpe was involved in the campaign, along with Ms Wills, Buildev director Darren Williams and Joe Triopodi, who “tried to play down his involvement”.
“The Commission is satisfied that each of Mr Williams, Mr Sharpe and Ms Wills played an active part in the Stop Jodi’s Trucks mailout campaign, which was designed to damage Ms McKay’s prospects of re-election,” the report says.
“The Commission finds that Mr Tripodi played a central role in the campaign by nominating the printer for the mailout pamphlets and involving himself in the drafting and design process for the pamphlets.
“During the conduct of the public inquiry, reference was made to the fact that the actions of Mr Tripodi were detrimental to his political colleague Ms McKay. It does seem to conflict with commonly understood principles of personal, political and party loyalty, but the Commission
makes no further judgment in relation to that, except to say that it does reinforce the Commission’s finding that Mr Tripodi acted throughout in support of Buildev’s interests, in the hope or expectation that he would derive a personal benefit.”
