The Americas trade role is one of NSW's most prestigious public sector appointments but selecting the right person for the job has been "flawed" and "problematic", according to a review.
Former NSW public service commissioner Graeme Head released his report into the appointment of former NSW deputy premier John Barilaro to this role.
The review was commissioned by Premier Dominic Perrottet after intense media scrutiny into Mr Barilaro's selection and questions about whether there was any governmental interference.
Here's some of the key findings from the review.
Amy Brown spoke with Stuart Ayres, a lot
The future of the CEO of Investment NSW, Amy Brown, looks uncertain after the review.
Mr Head recommended her employer, the Department of Premier and Cabinet, consider whether it needs to take action against her.
Mr Head found Ms Brown didn't act in accordance with the Code of Ethics and Conduct by keeping certain information from other members of the job panel.
This included:
- Discussions she had with the then minister for trade Stuart Ayres about the shortlist of candidates
- Arrangements she made for one of the candidates, Kimberley Cole, to meet with Mr Ayres while the selection process was still underway
- Discussions she had with Mr Ayres about the suitability of Mr Barilaro
Mr Head said it was "highly irregular" to consult with someone outside the job panel about the shortlist.
It was also revealed that Ms Brown sought the opinion of Mr Ayres about a candidate (not Mr Barilaro) who later withdrew their application.
The report noted Ms Brown had regrets about the process which she admitted was "flawed" but she insists any breach of the code was unintentional.
Ms Brown said her actions were the result of ambiguity about how she should or should not involve the relevant minister who she perceived as having a "high level of interest" in the role.
She also said her "swift promotion" meant she had less practical experience in considering the code of ethics.
The review did not suggest "impropriety" on the part of Mr Ayres, but said the process could not be characterised as at "arm's length".
A late application from Jenny West
Mr Head said it was also a "failure" by Ms Brown to accept a late application from senior bureaucrat Jenny West.
Ms West was offered the Americas job in August 2021 but that offer was later revoked when according to Ms West, Ms Brown said the job was going to be a "present" for someone else.
Ms West worked for Investment NSW and had managed the recruitment process for the trade jobs.
This meant she had access to progress reports and was copied in on certain emails that related to candidates for the Americas job.
Mr Head said Ms Brown had failed to consider "relevant factors" about Ms West applying, inlcuding information she would have as part of the normal course of her duties.
He said this conflict of interest was not managed in line with the Code of Ethics and Conduct.
"When Ms Brown was considering Ms West’s candidacy ...it would have been appropriate for her to turn her mind to whether or not Ms West’s prior involvement raised flags in terms of any possible advantage."
He also found the selection panel were not informed about any possible conflict that would preclude Ms West from the job.
Confusion over how roles were to be decided
In September 2021 cabinet agreed to a proposal put forward by Mr Barilaro to change the way the trade roles were selected.
All but one member of cabinet agreed to Mr Barilaro's plan for the roles to become ministerial appointments under statute.
This put a spanner in the works for Investment NSW who were told to stop and "unwind" any contractual arrangements taking place at that time.
After Mr Barilaro resigned in October, Mr Ayres took over as trade minister and set out to overturn that change at a November 8 meeting of cabinet.
But Mr Head said the cabinet decision was never properly overturned.
"There is no decision recorded that explicitly overturns the previous policy, neither was there a formal submission seeking to do so."
Mr Head said while Ms Brown could have done more to be absolutely certain about the status of the policy, there was genuine confusion on her part as to the policy status.
He made no adverse findings about the fact that Investment NSW resumed their recruitment process after the November 8 meeting.
Selection process was flawed
Ms Brown assigned a job selection panel consisting of Kylie Bell (a managing director at Investment NSW), Kathrina Lo (the NSW Public Service Commissioner) and Warwick Smith (a former parliamentarian).
Mr Head found major problems with how this panel operated.
There was no front-runner after the interview process meaning references were very important.
However, after references were checked, the panel failed to meet again to determine the final rankings.
Mr Head said it "beggars belief" there wasn't a formal deliberation by the panel at this stage.
He also said the selection panel report was "highly problematic" and did not have "appreciable" input from all members.
By the time the panel members signed their final selection report, Ms Brown had already had contract negotiations with Mr Barilaro.
This was not disclosed to any of the panel.
It was also revealed that Rob Fitzpatrick, a candidate who had been assessed as suitable in the initial recruitment process, was not re-interviewed in the second round.
Mr Head said this didn't seem fair and did not put him on even footing with the other candidates.
No conclusions about Mr Barilaro
During the ongoing parliamentary inquiry into Mr Barilaro's appointment, it has been suggested that he tried to set up the Americas job for himself before he retired from politics.
Mr Barilaro has emphatically denied this.
Mr Head said he was not empowered to examine the motivations of Mr Barilaro when he made a cabinet submission to make trade jobs ministerial appointments.
"It is not within my terms of reference, nor within the powers available to me, for this inquiry to examine the motivation and timing for this decision."
