C2004/6560, Transcript of Proceedings [2005] AIRCTrans 929 (18 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 11152-1

COMMISSIONER SMITH

C2004/6560 C2005/1811

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE
AND
AUSTRALIAN BROADCASTING CORPORATION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2004/6560)

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE
AND
AUSTRALIAN BROADCASTING CORPORATION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/1811)

MELBOURNE

10.11AM, WEDNESDAY, 06 APRIL 2005

Continued from 5/4/2005

Hearing continuing

PN4926

THE COMMISSIONER: Yes, Mr Smith?

PN4927

MR SMITH: Thank you, Commissioner. Commissioner, I would like to call Kate Torney.

<KATE MARY TORNEY, SWORN [10.11AM]
<EXAMINATION-IN-CHIEF BY MR SMITH

PN4928

MR SMITH: Ms Torney, could you state for the purpose of the Commission what your current role is at the ABC?---I'm the executive producer of Insiders, which is a national politics program.

PN4929

That goes to air on?---On Sunday mornings at 9 o'clock.

PN4930

Thank you, and how long have you been with the ABC?---I've been with the ABC off and on for about 10 years.

PN4931

You work in proximity to Ms Barakat, or you did work in proximity to
Ms Barakat?---Yes, our units are quite separate, but for a long period of time, Neheda's unit was next to mine and our programs are back-to-back on Sunday mornings.

PN4932

Were you present at the ABCs offices in Southbank on 1 April 2004?---I was.

PN4933

Could you explain to the Commission what occurred, from your perspective, on that day?---I was in the middle of a production meeting and Rebecca Armstrong came to me and asked me to come downstairs because Neheda was upset, and Neheda is a friend and a colleague, and so I think Rebecca wanted me to speak to her. And I went downstairs, and Neheda was outside the ABC and she was terribly upset about something that had happened in a production meeting and she was very anxious, and I suggested that she leave the ABC for a little while just to get some perspective, and that she return when she put a bit of space between her and the incident that had happened.

PN4934

What did Ms Barakat say to you at that time?---She was very upset. She said that she didn't think - that she couldn't continue, she couldn't go on, I think, and she was very upset about this particular incident, and it was a culmination of a series of very stressful things that had happened in the lead-up to that time.

PN4935

You say you suggested to her that she leave the ABC, what did you suggest?---I just suggested that she take some time just to - I didn't think that it was a good idea for her to immediately go back to work. I felt that it was more appropriate for her to just take a couple of hours and think about things and let things settle rather than going straight back into the ABC, and I think that's from experience the best things to do in those situations.

PN4936

Were you concerned that she would return to the workplace?---I was concerned for her wellbeing. I was concerned that she was so upset.

**** KATE MARY TORNEY XN MR SMITH
PN4937

Did you talk to her further on that day?---I may have spoken to her on the phone that day but I can't quite remember. I may well have spoken to her on the phone at home that day. I think I did.

PN4938

On the following day did you see Ms Barakat again? Did you pick her up?--- I did. I picked her up at her house to bring her into work at about 8 o'clock and Neheda was, you know, there ready to go, and I picked her up and we came into work together. Because I was concerned that she'd been distressed the day before and I felt that I wanted to offer her some verbal support.

PN4939

Was that your sole purpose for picking her up?---Yes, and I felt that I did want her to come to work that day. I wanted - I felt that, you know, what had happened the day before needed to be dealt with, and I wanted her to feel that she had a level of support and that's why I picked her up.

PN4940

Did you have any further contact or discussion with Ms Barakat during that next two to three days?---Certainly, I would have. Yes.

PN4941

There was no further issue of concern to you about her attendance at work from that period?---No.

PN4942

In other words, did things appear to be okay from that point?---Well, I felt that things were in train to deal with it, so I felt that people more senior than I am were certainly dealing with her concerns.

PN4943

Yours is a national coverage program, I understand?---It is.

PN4944

You report to whom?---I report to Greg Wildsmith, the head of national coverage and before him, Walter Hamilton.

PN4945

So at that time it was Walter Hamilton, I understand?---Yes.

PN4946

Did you have any contact with Walter Hamilton at that time?---Yes. I did. Walter was concerned about Neheda and he called me a couple of times just to see if I had contacted her or, you know, to see how she was.

PN4947

What was the nature of the conversations you had with Walter?---This is quite a long time ago.

PN4948

Just to the best of your recollection?---I reported to him how I felt that she was at the time and, yes.

**** KATE MARY TORNEY XN MR SMITH
PN4949

In your national coverage role, do you have occasion to have any business dealings with Mr Marco Bass?---I do. I report to the head of national coverage but I work in Melbourne, and Marco is responsible for what happens in Melbourne in terms of the technical production. So if I have any issues in relation to that, I will speak to him about that. But because I'm based in Melbourne and the head of national coverage is based in Sydney, I frequently also will discuss issues with Marco. I've worked with Marco for 10 years in different situations, and so I will frequently ask his advice on issues just on a colleague basis, not on a formal basis. I sort of, respect his views on editorial practices, and I'll seek his advice on issues, but that's not on a formal basis.

PN4950

What about on resources?---Certainly.

PN4951

You mentioned technical operation staff, I presume?---Yes.

PN4952

Other things, like office space?---Yes. If I had an issue with office space, I would certainly go to Marco. So Marco is responsible for all the practical implementation of our program, so any of the crews or that sort of thing. If I had issues I would actually go to him, and studio crews and things like that, he would be my first port of call.

PN4953

At this point, Commissioner, I have no further questions for Ms Torney.

PN4954

THE COMMISSIONER: I just have one. You may have a question following up from that. Ms Torney, is this the first time you have been asked whether you suggested to Ms Barakat that she should go home?---No. I was asked by the person who did the review for the ABC.

PN4955

Mr Crane?---Yes.

PN4956

Thank you.

PN4957

MR SMITH: I have nothing that follows from that, Commissioner.

PN4958

THE COMMISSIONER: Thank you.

<CROSS-EXAMINATION BY MS CONNOR [10.19AM]

PN4959

MS CONNOR: Thanks, Ms Torney. I have just got a couple of questions that I would like to ask you about. Just bear with me, will you, while I get them in the right order for you. You worked with Ms Barakat on The 7.30 Report before you became the EP of Insiders?---Yes.

PN4960

How was your working relationship with her on that program?---Terrific. I would say that Neheda's one of the most talented producers I've ever worked with. She has an extraordinary knowledge of the medium and so our relationship is, and was, very good.

PN4961

From where you saw things, did she enjoy a good relationship with other people that she worked with?---At The 7.30 Report?

PN4962

Yes?---Yes. I mean, I think that in any unit people get on better with some people than others, but I certainly had a good relationship with Neheda.

PN4963

You said in your evidence that you were aware of a series of events or stresses that may have been on Neheda before she left to go home on the day in question, can you tell me what you were aware of?---She was concerned about some communication problems with an individual within the unit, and she was concerned about a program review that had taken place.

PN4964

Can I ask you, was there anything else that Mr Gary Crane asked you about, any other incidents that Mr Gary Crane may have asked you about in the report?

PN4965

THE COMMISSIONER: You can put it directly if you are cross-examining, if you have got a particular issue you want to raise with Ms Torney.

PN4966

MS CONNOR: I'm just wondering whether or not Mr Crane just spoke to you about the day on which Ms Barakat went home?---No. He also asked me about a conversation - whether or not I had had a conversation with Neheda about a conversation she had had in relation to a pay issue with Marco Bass.

PN4967

What did you advise him?---I said that it was most likely that I had not had that conversation, but I couldn't recall the details of the conversation. I did tell him that Neheda and I spoke frequently about, you know, issues that we had. We were in the same - similar roles, and so we would bounce off each other. But I couldn't remember the detail of that particular conversation, but that wasn't to say that it didn't take place.

PN4968

So you can't really recall whether it took place or not, but you think it might have taken place, but you can't recall the detail?---Yes.

PN4969

Have you ever had a discussion with Marco Bass, in your current role, about your salary?---No.

**** KATE MARY TORNEY XXN MS CONNOR
PN4970

Has he asked you or made comments on how you might or might not get a pay rise?---No. The conversations that I would have would be with the Head of National Coverage in relation to salary.

PN4971

You're involved in putting together the budget for your program?---Yes.

PN4972

You would be consulted on that?---Yes.

PN4973

Who would you do that with?---Graham Nicholas.

PN4974

Your expectation is that he would discuss that with you before submitting a budget?---Yes.

PN4975

That, indeed, has happened?---It has happened. But I have been proactive in that happening as well.

PN4976

I'm not aware of whether you do or don't have a clothing allowance, but if you did have a clothing allowance or any other additional allowance, in addition to your salary, would you have that discussion with Mr Nicholas, or would you have it with someone else?---I hate to sound ignorant, but I have no idea whether I have a clothing allowance, either. But that discussion would be done with the Head of National Coverage.

PN4977

THE COMMISSIONER: Check your payslip?---Yes. That's right, a clothing allowance. I tell you what, I'll be going back and having a conversation.

PN4978

MR SMITH: I think I might have to object to this.

PN4979

MS CONNOR: Have you taken leave from the ABC, for example, like annual leave, for, say a month, or something like that?---Yes.

PN4980

Would it be your expectation in that circumstance, if the newspapers were going to be cancelled by Mr Nicholas, that he would actually raise that with you before doing that?---Well, actually I had a week off for Easter, and I cancelled the newspapers.

PN4981

Mr Nicholas has never actually cancelled the newspapers when you have been on, say for example, annual leave of a month, or something like that?---Yes, over summer, although it hasn't been Mr Nicholas, it's someone else. But yes, they have cancelled the newspapers.

**** KATE MARY TORNEY XXN MS CONNOR
PN4982

I think, Ms Torney, you may have been near, or been privy to, a conversation that Ms Barakat had had with her group concerning losing nine minutes of tape, were you in the vicinity when that discussion was being held?---Yes. A part of that discussion, I certainly wasn't at the formal meeting.

PN4983

But you may have overheard it?---No. I didn't overhear the formal discussion. I overheard a conversation she had with Pip Warren in relation to that, who is in charge of editors and crews and that sort of thing.

PN4984

How did you find Ms Barakat's demeanour in those circumstances?---At that point of the whole scenario, Neheda simply said very calmly to Pip that she didn't have time to speak about the aftermath, that she needed to get on with the program and actually salvage the actual segment. But she was very calm at that time.

PN4985

Just bear with me. I'll just look through my list of issues that I wanted to discuss with you. Yes, I think that I'm finished also. Thanks, Ms Torney.

PN4986

THE COMMISSIONER: Mr Smith?

PN4987

MR SMITH: Other than my concerns about clothing allowance, I don't have any questions.

PN4988

THE COMMISSIONER: Thank you very much. Thank you for your evidence, Ms Torney, you are free to go?---Thanks.

<THE WITNESS WITHDREW [10.26AM]

PN4989

MR SMITH: Commissioner, I just need to check whether or not Mr Hamilton has made it from the airport.

PN4990

THE COMMISSIONER: Sure. Why don't I adjourn and you can advise my associate when Mr Hamilton has arrived?

PN4991

MR SMITH: Okay, thank you.

PN4992

THE COMMISSIONER: We will adjourn.

<SHORT ADJOURNMENT [10.26AM]
<RESUMED [10.53AM]

PN4993

MR SMITH: If the Commission pleases, I call Walter Hamilton.

<WALTER STUART HAMILTON, SWORN [10.53AM]
<EXAMINATION-IN-CHIEF BY MR SMITH

PN4994

MR SMITH: Mr Hamilton, would you be able to just explain to the Commission what your current role is, and perhaps just a quick pen picture of your work history?---Yes. I'm sorry, Mr Smith, I'll just get some water. I ask the Commission's indulgence, I've got some laryngitis.

PN4995

THE COMMISSIONER: That is all right. Just take your time?---It's just impeding me today.

PN4996

It is not helped by aeroplane air either?---Yes. My title in the ABC is Head, National Programs, News and Current affairs. I'm currently on leave without pay for the ABC, working on a private project this year. I started employment with the ABC in 1975. I've been in my current position, which had a slightly different name but substantially the same position, for approximately four years.

PN4997

MR SMITH: You're responsible for the Inside Business program?---I'm responsible for the national programs in news and current affairs on radio and on television. They include ten television programs and one of them is Inside Business.

PN4998

You're located in Sydney?---I'm based in Sydney.

PN4999

This program is located in Melbourne?--- It's based in Melbourne.

PN5000

Were you responsible for setting up that program?---Yes, I was. We had a program already in the schedule on Sunday mornings called Insiders. I'd been in discussion with Alan Kohler for some time, who had been pressing the idea that the ABC should embrace a current affairs business program. We decided that it would be a program that would be complementary to the Insiders political program on Sunday morning. We talked to the television division of the ABC about going ahead with that project. They gave us not just that period of time but they gave us two hours to fill, which meant also pulling together a couple of other programs to fill that two hours. So I spoke to Alan and then started the process of working out what that program would contain, how it would work. The key issue of that program was that we wanted it to be a stylish current affairs television program. We wanted it to showcase Alan's profile in the business community as a well-known media performer, so it would have key interviews by Alan. He was also keen, and we were keen, to use the program to showcase Australian small and medium-sized business, and we did that through a segment called First Person which is an attempt to show how, I guess, smaller-scale business in Australia deals with the day-to-day problems of making money and all the other issues of business. So I then set out to decide who we would have as an executive producer to run the program. Initially, I approached Kate Torney, who was the executive producer of Insiders, and asked her whether she would be willing to take a supervisory, that is an executive, role over both Insiders and Inside Business, because of her experience and talent. She declined that offer for reasons I don't need to go into. I then was looking around for an alternative. I knew that Neheda Barakat had been Alan Kohler's producer on The 7.30 Report, that is, that she had been essentially a dedicated producer working with Alan, and so she came into the frame in my mind. I didn't know much about Neheda personally, so I contacted Marco Bass, who was the editor for Victorian news and current affairs. Why I contacted Marco is because Marco had previously been Bureau Chief for The 7.30 Report in Melbourne, and had worked with Neheda and, knew her. I asked his advice as to whether or not it was a suitable course of action for me to offer the job to Neheda. We agreed that she was a person who knew Alan Kohler professionally, best of anybody in the Melbourne office, and Marco said, "Yes, let's give her a try". So, on that basis, I spoke to Neheda and began that process of engaging her.

**** WALTER STUART HAMILTON XN MR SMITH
PN5001

This was when? In about July, was it, 2002?---It was around June or so, 2002. Around that period, yes.

PN5002

What process then did you go through in setting up the program?---Okay. The elements of making a new program are, one, clearly, the editorial content elements. What are you going to try to say in the program week after week? What will be the look of the program, which goes to the opening titles; the set design; the use of graphics. All the pictorial elements that the viewer will receive information through in a program. What staffing requirements will the program have? How much money do we have to spend on the program? All of those key things were decided either with or without Neheda. Some of them were decided before Neheda essentially was on board. How much money we had to spend was essentially decided before Neheda was on board. How many people that we would probably buy in terms of reporters and producers was essentially decided by the amount of money we had to spend on the program. When it came to the content, that is the shape of the program, what kinds of elements it would have, Neheda and Alan had discussions about what they would like to do and they gave to me a proposal for a program that included four key elements. One was a market report, one was a key interview for the week, another was a substantial more serious feature story, the fourth element was the First Person element which was an element about medium and small business in Australia. So the program's design was around those four elements. Mark Lucas, Senior Director in Victoria, was brought into the process of helping to design the look of the program, titles, set design and so forth. Melbourne has - without getting too technical - a full chroma set which has been developed by Mark Lucas for the television news and Stateline, and he was able to parlay his knowledge of that into a design for Inside Business. Inside Business is a pre-recorded program. It's recorded on Saturdays for airing on Sundays, so fundamentally different from a program like Insiders, which is live, and uses a live set. I went to Melbourne and spent time with the graphic artist working up graphic elements, the fonts that we'd use, how we would design the pages for the market report, for example. Neheda was, as I said before, intimately involved in discussions with Alan about the shape and content of the program. We went through a process of some piloting, we looked at titles that were developed in Melbourne, we redid the titles that didn't quite work, we finessed the elements as best we could in the time that we had available to get the program on air in a respectable shape, and I think we did that. After that, of course, we continually needed to refine it and finesse the program, because there were still some things that weren't quite working as we really desired.

**** WALTER STUART HAMILTON XN MR SMITH
PN5003

At this stage you have engaged Neheda, were you in discussion with her about her job plan and the salary levels?---When I approached Neheda and asked her whether she would be willing to take on this job, I explained the reasons why we were doing the program, that is, the basic concept of the program, where it would sit in the schedule, the duration, how much money, notionally, she would have, and the staff she would notionally have, and that because of her experience working with Alan, she seemed like a very suitable person for the job. I said to her that in keeping with previous situations - I can cite the example of Insiders, when we started up Insiders in Melbourne, we were taking on someone who had never made a program of that sort before, never had that degree of responsibility, so they were on trial, and in the case of Insiders we went through that trial process before we dealt with any issues of higher salary. I said to Neheda, "I'm offering you this job on the basis that you remain on your current salary point," which was point 35 at the top of band 7, and that, "on that basis I'm offering you this job," and she said, "Okay, I'm willing to do it." She accepted it. That was around, as I said before, the middle of 2002, around June.

PN5004

So she was already in the band 7 as a producer?---She was band 7 point 35, I believe.

PN5005

That was as a producer in The 7.30 Report?---That's right. Yes. Yes. She was, in terms of her band and salary point and in terms of her years, the more senior producer in The 7.30 Report.

PN5006

If I can just pause briefly there. Is it common within your areas of responsibility - you are familiar, I take it, with the band levels?---Yes.

PN5007

And the templates where the journalists and related producers ostensibly stop at band 6, but I understand you have a number of producers at a higher level than band 6?---We do. I mean, the area that I'm responsible for, the national programming, includes the most prestigious news and current affairs program the ABC makes, and programs like Australian Story, Four Corners, The 7.30 Report, Lateline et cetera, without leaving programs out. I'm not diminishing their value, but I'm talking about programs which have obvious public recognition and high audiences, and among those programs we have producers on different band levels. I know that for a fact in The 7.30 Report, we have producers in band 8 as well as producers in band 7. We have producers in band 8 in Australian Story. We have producers in band 8 in Four Corners. I'm aware of at least one producer on
band 8 in Stateline. It doesn't have the title of Executive Producer. So because of the complexity of these programs, which are dealing with complex television making, very serious often contentious, controversial and legally difficult issues, we need people in the higher band levels, with that level of experience, to be producers.

**** WALTER STUART HAMILTON XN MR SMITH
PN5008

So Ms Barakat was already at the band 7 level as a producer?---She was.

PN5009

Then you transferred her across?---She was. I basically, you know, adopting
19.3 of the employment agreement, I moved her from the role that she had on The 7.30 Report to a new role. The band 7 encompasses skills which I believed were already written in the band 7 sufficient for her to be given a job of this sort. Skills and responsibilities of band 7 certainly encompassed the kinds of things I was asking her to do. Now, it's a matter of record that - it's a matter of record now, because I'm describing the circumstances. Having agreed to come onto the program at her existing point 35, some time later during the process of setting up the program, and I think it would have been something like a month or so closer to the August start-up date, she came back to me and said she had second thoughts about accepting the job at band 7. She wanted to be put to band 8 immediately. I was taken aback. I'm not used to dealing with people who want to rewrite agreements, especially under the pressure of making a new program and I said to her no, that I wasn't going to review the decision and the agreement that we had formed earlier that she would be on band 7, and at the end of the year, 2002, we would sit down together, look at the progress of the program and discuss any possible move to a higher band. She was not happy with that but she finally accepted that I wasn't going to change my mind. But in the process, I spoke to Marco Bass when she came to me and said that she wasn't comfortable at
band 7 with this job, he knew her better than I did and quite frankly it was going through my mind that maybe this wasn't the right person. It was a person who I didn't feel was being quite straight up and down about the negotiations we'd already had. But anyway, she accepted that she would stay on point 35 and we went forward from there.

PN5010

The program - I made this mistake previously, saying it went live because it's not a live program per se, but it was broadcast - when did the broadcasting commence? In August 2002?---In August 2002.

PN5011

Were there any other issues or hiccups during that period of time?---Look, there was a fairly short lead-up time to the program. Everybody concerned worked hard to get the program into the best possible shape it could be. Between the decision to go ahead with this program at the middle of the year and its launch, there were no, other than normal, teething issues of getting a program to air.

PN5012

Who were the other staff on the program at that time?---Okay. We decided that the feature story needed a dedicated senior reporter and that it may not necessarily be a full time five day a week requirement, so we'd just have a look at to see whether or not we would have the capacity to employ or engage somebody just to do that job within that program, and they may effectively be working four, four and a half days or something like that in an average week. We needed a market report producer and that person, because of the market report requirements, didn't have to be a full time person. Alan Kohler would do the key interviews. He would present the program, and obviously he would be a major source of editorial knowledge and direction for the program, given his expertise and a full time executive producer, Neheda Barakat. We also needed someone to do the First Person segment. Again, there was a sense that this may not require a full time commitment by someone. In the newsroom, both in Melbourne and other parts of the country, you may have an individual staff member doing a mix of things during their working week, or they may be on a cycle of doing something for two weeks and something different another two weeks. So we looked at the scope of how many hours, how many days in the week it would require someone to do that work. So effectively we had, when we started off the program, full time Alan Kohler, Neheda Barakat. We had a contracted reporter, Greg Hoy, to do the feature story, and we had Zoe Daniel, who was a staff member from the Melbourne newsroom, doing First Person.

**** WALTER STUART HAMILTON XN MR SMITH
PN5013

Going in then to 2003, were there any issues that caused you concern with the Inside Business program?---Look, in 2003 one of the major concerns that I had about the program was the relationship between Greg Hoy - I might have said Andrew Hoy earlier on, I'll correct the record if I did. I think he's a writer, an equestrian writer. Greg Hoy and Neheda Barakat. Greg was a very experienced television current affairs reporter. I didn't know him very well personally. I had employed him, as I came down, looked at his CV, interviewed him, talked to people who knew him and he seemed like he had the goods to do that job. But during - particularly during 2003, the relationship between Neheda and Greg was just not working. Now, I became aware of that because Neheda was complaining about Greg, saying that, you know, he wasn't showing her scripts. She didn't know where he was up to in the process of making stories. Now, remember, we're talking about a small program unit, a handful of people and at that time they were sitting in the general newsroom closer than you and I are, I mean next to each other. The point of communication was as close as to turn around and talk to somebody. But she was describing that she didn't know where he was at with his stories, and so I'm saying, "Well, if you're asking him." "Oh, no, he won't talk to me. I can't talk to him. He's not communicative." Clearly there was, you know, some personal dysfunction, poor chemistry going on between the two of them. Greg himself always evinced to me - when I was down in the office down there, and talking to him - a very mild-mannered, relaxed sort of guy, undemonstrative, possibly taciturn character, maybe, you know, he was contributing to the chemistry of this dysfunctional relationship, increasingly dysfunctional relationship. So we - I was concerned about what was going on there, and it progressively got worse. Now, I became aware that it was felt that human resources skills were needed to try and make the relationship work better, and, fine, that happened. But it didn't seem to have the result of getting them on a better working relationship. Now, I sat down with Neheda and I said to her, Look, the relationship you have with the key reporter on your program doing the feature story is obviously a vital relationship, and you're in a position, I think, as an executive producer to drive this situation in terms of trying to be flexible, trying to find other strategies for dealing with someone who, you're telling me, is difficult. You're a small program unit, you can't hide these kinds of issues. You can't go to somebody else - when you've got two or three people in the whole program - to find a solution, to avoid dealing with a problem with somebody who you don't get on with. You've got the position, you've got the authority, you've got the responsibility to try and shape the situation and to retrieve it. She listened to me - - -

PN5014

At what part of the year is this, roughly?---This is, I would say, somewhere around the middle of 2003.

**** WALTER STUART HAMILTON XN MR SMITH
PN5015

Okay?---Around approximately that time. She listened to me, nodded, didn't demur, didn't object, listened to me. I was trying to give her, I suppose, somewhat of a fatherly talk to her, you know, Let's try and get this thing on track, you know, and really you can be the driver here, because you're in the position of authority here in the program. It didn't happen. Now, Greg was on a fixed term contract, which was finishing at the end of 2003. Neheda knew that, and she was anxious that Greg would not continue in the next year. I was faced with a situation where I had an executive producer who I wanted to succeed, I'd appointed her, and I had someone who I could discontinue at the end of the year. I thought that the poor relationship between her and Greg was affecting Neheda, and it was also affecting Greg, so I didn't think it was productive for the program to continue. As it happened, Greg had already made up his mind that he had had enough, so when I came down to Melbourne to have a conversation with Greg about the future, we sat down and there was just an immediate kind of meeting at the middle. I was beginning a conversation which I felt inevitably would have to end in saying that we won't renew next year. He began a conversation which was inevitably heading towards, "I can't stay any longer. It's not tolerable." Now, it's important to remember, and I said it to you earlier, Greg's a very undemonstrative, calm, quite laid-back sort of guy. In this whole conversation that I had with him, he didn't load on the heat, he didn't attack Neheda. All the time I got the impression when I was dealing with Greg that professionally he was kind of embarrassed at the situation that had developed. That he, as a professional, felt that you got on with the job, you did it, you did it professionally and well, and personal relationships shouldn't be allowed to develop and get in the way. His manner, when I was talking to him at the end of 2003, was consistent with that. He simply said, "Yep, look I've had enough. I accept that we're not going to continue next year," and we had a very amicable parting. I sent him a note afterwards saying I sympathised with the situation that had developed and thanked him very much for his work. I made the decision that I would stick with Neheda.

PN5016

Okay?---But I had to resolve the situation by removing a member of that production team, so I was left with no reporter to do that job. I had to go and find another one.

PN5017

Also during that year, was Luisa Saccottelli employed - - - ?---She came on board because Zoe Daniel went off to do other things, and Luisa came on board to do the First Person segment. At what stage I became aware that Luisa and Neheda were not getting on, I'm not quite sure. But I certainly heard from Neheda that Luisa was, again, another difficult person. Didn't really know whether she could rely on her to deliver on her enthusiasm, you know, Neheda. Luisa was promises, promises, promises, but didn't really know whether she was going to deliver.

**** WALTER STUART HAMILTON XN MR SMITH
PN5018

This was Neheda's - Ms Barakat's assessment to you?---Assessment of Luisa.

PN5019

Okay?---Clearly there was unfortunately not a very good working relationship developing there, again. Again, when I first became aware of that, I'm not absolutely sure but I certainly was aware of it.

PN5020

What steps, if any, did you take with regard to that relationship?---I spoke to both Neheda and to Luisa about how they were getting on. They both of them insisted that they were going to work through any issues they had with each other. Neither of them wanted to engage with me, involve me, bring me into, quote unquote, a dispute, because they basically wanted to find a way out themselves.

PN5021

Did you provide any advice or guidance to Ms Barakat?---I'd been - look, I don't know that I said again what I'd said to her before in relation to the Greg Hoy matter. What I said in relation to the Greg Hoy matter was that she needed to learn from that experience, and apply what she had learnt from that experience to future cases. So, implicit in that, was an understanding that I had advised her that in all her dealings with staff in the future, she could learn from the lessons of what happened with Greg.

PN5022

Moving forward then to 2004, the program year commences roughly
when?---Around February.

PN5023

Were there any staffing issues or any other concerns that you had at that
stage?---We, at that time, were bringing Jeff Hutchison back from Brussels. We closed the Brussels bureau around that time and because of his experience as a television current affairs reporter, a good storyteller, I asked Jeff to come into the gap that we now had as the feature reporter on Inside Business. Luisa Saccottelli continued. The other person who came into the frame was Claudette Werden. The circumstances there were that in 2002 - and I was unaware of this, Neheda didn't advise me of this - Neheda decided that she needed some assistance, she needed some production assistance, and she engaged Claudette on a casual basis.

PN5024

Was there a budget for that?---No. There wasn't a budget for that.

PN5025

Okay?---And she didn't tell me about it. Come the end of 2002, looking ahead to 2003, Neheda then started to make a formal case that she needed some assistance, particularly on the busy Saturday, to get the market report and make sure it was nailed down.

**** WALTER STUART HAMILTON XN MR SMITH
PN5026

Right?---And other production assistance and research assistance. Now, I didn't know Claudette, so I made enquiries. She had done some work at Radio Australia, and elsewhere in the industry. Among people I spoke to, to seek advice, was Marco Bass, he was very positive about her, as were others. Neheda was very keen that she be given a job, brought into the ABC, and I said, No, look hold on. These are appointments that I make. Since we are talking about, in fact, enlarging the scope of the program, I'm going to come down to Melbourne and meet Claudette, and I'll make the decisions about her engagement. I met Claudette, we talked about what she would do, and I engaged her for that job. One of the big reasons I engaged her was that, quite clearly, from the communication I had with Neheda about Claudette's worth, her merits, there was a good rapport between Neheda and Claudette. This was reaffirmed to me when I met Claudette, in relation to what she said about Neheda, and how she got on with her, and it seemed to me it would be very useful for the program if I had Claudette in the unit as a kind of buffer, as a kind of salve if you like, to try and smooth over issues that might arise, particularly in relation to managing crises that occur. She was a very calm person, matter-of-fact, businesslike kind of person. So, I could see some use, given the experience I'd had with Neheda during 2002 and 2003, of having Claudette come into the program formally.

PN5027

You've mentioned Marco Bass on a couple of occasions in your evidence so far. Were any issues of concern raised by Neheda Barakat with you about Marco during 2002 and 2003?---The first time and the only time that Neheda made a complaint about Marco was in relation to his conduct of a meeting with her in March 2003 - 2000 - I'm losing track - 2004.

PN5028

2004, yes?---2004, over a meeting that Neheda had arranged involving production resources staff, to discover the cause of an erased recording.

PN5029

This was a meeting that was held, I think, on 19 March?---I don't have the date, but it was in March. It was the subject of an email from Neheda to me on
26 March I think.

PN5030

Commissioner, that would be an email, I think, that's in ABC4. It may be in other documents as well, it's also in C1, but it's an email addressed to Walter Hamilton from Neheda Barakat dated Friday 26 March 2004, the time is 13:16, so,
16 minutes past 1.

PN5031

THE COMMISSIONER: Thank you.

**** WALTER STUART HAMILTON XN MR SMITH
PN5032

MR SMITH: If you could just - - - ?---Okay. I received the email on 26 March. I've reviewed my memory of it in recent days. The email was headed up, "Staff issue," I believe.

PN5033

Correct, yes?---Yes. It began by notifying me of a staff issue involving Neheda and Luisa Saccottelli. Now, I was aware there were issues between Luisa and Neheda going back quite some time, as I've said earlier. I was aware also, almost concurrent with this email, by advice from Kate Marshall, HR in Victoria, that Kate Marshall had been involved in a mediation process between Neheda and Luisa. So, when I received the email on the 26th from Neheda I wasn't completely surprised. However, in the conversation that I'd had with Kate prior to receiving the email from Neheda, I got from Kate the distinct impression that Kate felt that the matter was being resolved.

PN5034

Was being resolved?---Was being resolved. That she had - Kate formed the view that there were faults on both sides. That she had spoken to them about ways in which they could remedy the friction between them, and she was setting out a course of action for them to follow, to try and see that that relationship would be put back on track, so I had that impression from Kate's view of the mediation she had taken part in. And then I received the email from Neheda. Now, remember, I had never been told by Neheda that she had any mediation with HR, or was planning to do so, or that the issue had raised the problem of bullying, which I believe was an accusation made by Luisa against Neheda. This was the first time I saw the word in the context of that relationship, but I didn't get it from Kate, I got it from Neheda. And how did I get it from Neheda? If you read the email, it is a long recitation of grievances Neheda has against Luisa.

PN5035

Okay?---Which characterises her as being unpredictable, not necessarily the word she uses, but certainly implies that she's erratic. She goes on to talk about an incident involving Alan Kohler, that is, that Luisa had spoken to Alan Kohler without permission - that was the imputation here - and that when Neheda had spoken to Luisa, Luisa had accused her, Neheda, of bullying her, and gone off crying. The way it was described in that email was, this was Luisa, a problem, "a member of staff causing me trouble." The email then goes on to say, Oh, I want to raise another matter, and the other matter was - and this is the first I heard of it - that Marco Bass had called her in to talk about her conduct in arranging and during a meeting of production resources staff, and herself and other staff in the unit, to try and find out how a tape item had been erased after it had been recorded. The email says Graham Nicholas, who's the Production Manager, Victoria, had come to Marco and complained to Marco that he, Graham, had been embarrassed by Neheda's conduct in this meeting. Marco had relayed to Neheda in that meeting Graham's view that Neheda's behaviour had been embarrassing. That's what the email says.

PN5036

Did you take this issue up with Marco?---Well, I must really finish about the email.

**** WALTER STUART HAMILTON XN MR SMITH
PN5037

Yes, sure?---The way I read the email, it then goes on to say that, what right did Graham Nicholas have to characterise any behaviour by Neheda as embarrassing, when it was well known that Graham Nicholas was, my word, "notorious" in terms of bad, I think, professional etiquette, person etiquette. That what right did he have to say anything suggesting bad behaviour by her, because he was a serial offender. Now, I know Graham Nicholas. Neheda had never complained to me about Graham Nicholas prior to my reading this in this email, and yet she was portraying him as someone who was, it seemed to me, chronically offensive. Where's the connection between these events? So I read the email. I rang Neheda and I said, "What's going on?"

PN5038

When did you ring Neheda?---On that day, 26 March, and I said, What's going on? And she said, What is Marco Bass's relationship with me? That is, what responsibility does Marco Bass have in relation to my conduct of my job as an executive producer? What right does he have to ask me to explain myself in relation to this issue? I said to her, Neheda, Marco, as I thought you would know, is responsible for the Victorian branch news and current affairs interests, that is, all the dealings between news and current affairs and the other divisions of the ABC as they're conducted in Victoria. He is our senior manager. The relationship, I said, between news and current affairs and production resources which provides the staff to edit our stories, to film our stories, to provide the staff in our studios, are fundamental to the success of our programs. And we must have a good cordial working relationship with production resources, and I think it's fundamental to Marco's responsibility that if he has concern, that he raises it. Neheda had not said anything to me in the email, nor in this conversation, that Marco had raised it in an offensive way. She objected to the fact that he had raised it, and she asked me whether or not he had any right to do so. I explained why he had a right to do so. Now, that conversation left me with the feeling that Neheda, if she didn't understand those relationships, she was in some state of confusion and uncertainty. The same day, I sent her an email setting out in that email the key - and this obviously has to do with the relationship with everybody including Graham Nicholas and Marco Bass has - I set out in that email, I reiterated in that email, the things that I had said to her before, particularly in connection with the Greg Hoy matter. That the executive producer of the program sets the tone for the staff around her, for the people that she deals with, that she has the editorial responsibility for the program. But in discharging the responsibility or the authority of the editorial role, she should show, and needs to show some personal deference. That is, she needs to give people space, needs to be adaptable, flexible, find ways around problems, because ultimately, solving those problems are going to be on her head. I reiterated that in that email and said at the end of the email that all these distractions - I didn't use the word distraction in the email, but what I said in the email was that all these things that you're communicating to me now, it does concern me that they are preoccupying your attention at the very busy end of the production week, when I would hope that all your energies, all your attention would be focussed on making the program. That's what I said in the email, and I finished by saying, I expect - because I know you will put your heart and soul into it - you do to that. Concentrate on the program, put these other things aside. I hope I can get down to Melbourne the following week. If I can, we can talk about things. Now, I felt that in those communications, I made it perfectly clear to Neheda that I had heard her concern, I had answered the specific concern that she had raised about Marco's status. I had reiterated the need for her to focus on the program, not let things which really went to accusations of people being notoriously lacking in personal
etiquette - Graham Nicholas is not a reporter. Graham Nicholas doesn't sit in the studio in front of a camera. Graham Nicholas doesn't cut the stories. He doesn't direct the studio. He's a peripheral figure in making a program and the Thursday of a production week you are thinking about the program and you put the other things aside. That's what I was trying to get across to her.

**** WALTER STUART HAMILTON XN MR SMITH
PN5039

Okay. In that conversation that you had with Ms Barakat, were any other issues of concern regarding Marco Bass raised with you?---No. There were no other issues of concern raised with me. No, not at that time.

PN5040

Moving on from your conversation with Ms Barakat on 26 March and your follow-up email, I presume that you had the conversation and then you sent the email?---Yes.

PN5041

Is that the correct - - -?---That is the order as I remember it, yes.

PN5042

Yes. You intended to come down to Melbourne, but that did not occur?---I must admit that from time to time I make plans that get changed, particularly interstate movement. Plans including program reviews get changed and moved around because people's availability changes, my availability changes and this news and current affairs business is unpredictable. So I didn't get down there. I regret I didn't, in hindsight.

PN5043

You mentioned the program review. In this sequence of events, you called on a program review. My understanding is that you had advised earlier that these program reviews which, I think, were occurring previously for the daily programs, you were extending them to the weekly programs?---Yes. We had initiated with the news and current affairs process of doing spot reviews on our news bulletins to see whether, one, they were meeting our editorial guidelines, two, they were good news bulletins in terms of being timely and so forth, production values were strong and - if this is too much detail, pull me up - but, anyway, the national audit office took a look at the ABC, they looked at these program reviews, they liked what they saw and they suggested, they recommended that we in news and current affairs, extend them to all our other programs, which we did. Now, when I notified the programs who were going to be reviewed for the first time, I indicated the nature of the process, that is we would review the program, probably play a tape of it that we would have a collegiate discussion about, how it was satisfying the requirements and the brief of the program, and that I would try to give a week's notice. Now, this note was sent to all sorts of programs, right? They were sent to daily programs and they were sent to weekly programs. The daily programs included The 7.30 Report, well, it's a four-day-a-week program, Lateline, a Monday to Friday program, what was then World at Noon, now Midday News and Business, and they were sent to the weekly programs. There was a mix of weekly programs and daily programs.

**** WALTER STUART HAMILTON XN MR SMITH
PN5044

Your intention was to give them a week's notice?---That would be what I would desire to do. So, at the start of the year 2004, I made a list of programs that had to be reviewed and for my own purpose I put a date against that list and then I marked my diary on that date, saying, "Insiders review, Seven Days review, Inside Business review". Now, I've looked back at the diary, and you can see that it was done at the same time, and the first entry there is back for Seven Days which, I think, was a fortnight before we did the review for Inside Business. So it was a schedule that I had made for myself. I was keeping on that schedule. I didn't advise Inside Business of a program review a week ahead because, quite frankly, by that stage in the process I'd been so used to changes in the scheduling of these program reviews, constantly we would schedule on a particular day and the EP wouldn't be available, or presenter wouldn't be available, or I wouldn't be available, and for some reason or another we couldn't have it. So the rigidity of the whole process, of having it on that day and only on that day, had already been, by practise, eroded. But anyway, I sent a note on the Monday, that's Neheda's day off. She received it early on the Tuesday morning. I think the review was scheduled to be held at 2 o'clock in the afternoon, and she sent a note back to me saying, That's fine. Quote unquote. "That's fine, here's Alan Kohler's number to call him." Because I had a situation, and this is the difficulty inherent, of course, in managing a program from one place that's operating in another, which you do it by the phone, sometimes I have to do it by phone. Now, we also had Alan in one location, me and Peter Ryan in Sydney, and Neheda in another location, so we actually had a three-way conversation, with no sight of each other. Anyway, we've done that for other programs when it's necessary. Brisbane, for example, when we do Australian Story, we sometimes have to do it that way. I don't get to Brisbane every time for reviews. But, anyway, that's the customary thing. This is borne out by the experience that any EP could relate to you. These are movable feasts.

PN5045

Is it unfair on an EP, though, having advised them that you would probably give them a week's notice, or it would be the intention to give them a week's notice, to spring it on them, so to speak, on the same day?---Well, this is not an EP review, it's a program review. This is not an assessment of an individual, it's an attempt to look at a program with a bunch of colleagues - both within the unit, myself and outside the unit, in this case, Peter Ryan - look at the program as a viewer would look at the program, and as professional journalists would look at the program, and say what is good, what is bad about it, and to measure it up against what we expect from the program. It's not an accusatory session. It's a session which is actually really nuts and bolts; just looking at it from a professional eye. What is working, what is not working.

**** WALTER STUART HAMILTON XN MR SMITH
PN5046

So there was nothing that had occurred in the previous week that triggered this need in your mind to undertake the program review?---Absolutely not. The program review on my schedule was to occur on the day it occurred, and it went ahead in the normal manner, and the write-up of the review of that program compared with the write-up - and I do dozens of them - the write-up of that review would look very similar to the write-up of any other review.

PN5047

Was there some debate in that program review over issues such as the First Person segment?---Look, the review, actually, as it turned out, as far as I was
concerned - and I wasn't alone, because others raised issues - there were quite a few things that I wanted to talk about on that program, largely to do with the look and the production values of the program. I said in the review, I asked in the review, why was it that the First Person segment didn't run that week? Because I had been led to believe, speaking to Luisa Saccottelli earlier on, that she was telling me she was looking forward to this item she was working on going to air, and urging me to watch it to give a critique of it; and when it didn't turn up on the program, I asked why wasn't it there. It was put to me that, Oh, it was dropped because there was a last-minute interview opportunity with Graham Cray of NAB. That's when the discussion went to the point of simply saying, Well, as we know, when the program Inside Business was set up, we designed it around four core elements, and it is desirable that we try to keep to those four core elements; that if possible, we don't drop the First Person segment, because the audience has an expectation of some continuity in the shape and the scope and the focus of the program. That's when it finished. There was no further discussion.

PN5048

Was that a heated discussion?---No. It was not a heated discussion.

PN5049

Did you raise your voice?---In the whole process of that review, I recall at one time I was speaking at the same time that Neheda was speaking. I felt that Neheda was not paying attention to the issue that I was trying to get across, and I persisted in talking and I did raise my voice. One moment in a program review on a telephone line trying to get across a point. We had a lot of business to get through on that review, and all that time is precious. We had people on three different phone lines trying to get a communication across. I simply needed to get the points made that I had to make as a manager.

PN5050

Did anyone contact you after that program review and express any concerns about the nature of the review?---The only person who contacted me was Neheda.

PN5051

Okay?---When I was driving home from work, approximately 7 o'clock, she rang me on my mobile.

PN5052

That is on the same day?---On the same day, she rang me on the mobile and she said, "Is everything okay?" And I said, "Why? What are you asking this for?" and she said, "Oh, I thought you were a bit different in the program review today," and I said, "No, Neheda, I wasn't any different. Unfortunately these things done over the telephone are not ideal. Secondly, we had a lot of business to get through, and I wanted to make clear all the points I wanted to make in that program review. Thirdly, we were all pressed for time. There was no other agenda. No other issue. No other concern." She said, "Fine, okay. I understand. That's okay." I thought she was reassured that I made the practical points of what we had done and how we had done them.

**** WALTER STUART HAMILTON XN MR SMITH
PN5053

This is later in the evening on 30 March?---This is about 7 o'clock on that day.

PN5054

What was your next contact or issue regarding Inside Business?---Can I just fill this up?

PN5055

Yes, sure?---I think it was the following - yes, it was the following Thursday.

PN5056

That would be 1 April?---1 April, a little after 11 o'clock in the morning, I received a call from Marco Bass. He told me that Neheda had left the building suddenly, that she had handed in her phone and that she had told people in the unit that she was going to resign.

PN5057

Just before you go further with that, there had been no other conversations with anybody regarding Inside Business post- your discussion with Neheda on the 30th?---No.

PN5058

So this is the very next issue about it at all?---This was the next time that I had any dealings on the Inside Business issue.

PN5059

Would it be unusual for Marco Bass to have called you on such an
occasion?---No. He's a senior editorial manager, a senior manager in Victoria, excuse me. I'm glad he did, because Neheda did not.

PN5060

Did anyone else contact you?---No one rang me. I rang Alan Kohler soon after I heard this information, and asked him what's going on.

PN5061

What was his response?---His response was, we were having a normal weekly program staff meeting discussing the programs, and that he had said in that
review - he thought, matter-of-factly - that it was his view, too, that they shouldn't drop Inside Business from the program. He was reiterating what I had said in the program review the previous week. At that, according to Alan Kohler, Neheda had basically said, That's it, that's the last straw, no one is supporting me. Words to the effect. She got her things together and left the building.

PN5062

That was as reported to you by Alan Kohler?---By Alan. Yes.

PN5063

Okay?---So Marco had rung me to inform me that she was not there. I didn't have any other detail on the conversation so I thought, Okay, I'll wait for Neheda, she will ring me and tell me what is going on.

**** WALTER STUART HAMILTON XN MR SMITH
PN5064

What time was this, approximately?---I received a call from Marco a little after 11, maybe 11.15, something like that. But it was shortly after 11, and I got no call from Neheda, so I waited. Came lunchtime, still no call from Neheda. Now, I'm not sure whether I left a message at her home or not. Anyway, the only number I then could get her on was to call her home, it was the only other number I had since she didn't have her mobile phone with her. So I'm not sure whether I rang her earlier, but anyway, at approximately 2 o'clock, when I rang her home, I got her. I said to her very calmly, I said, "Neheda, I've heard that you've left the building. What's going on?" She said, "I don't know whether I can carry on any more. I don't know whether I can carry on any more." I said, "Why? What's going on?" "Everybody's against me." Then she said, "From day one, Marco Bass has been campaigning against me." Now, what did I know about day one? Day one was the day I appointed her on the endorsement of Marco Bass. She was very distressed. We did not have a long conversation. I felt by trying to prolong it and enquire as to the detail, she was not able to cope with that. So I said to her "Neheda, are you going to come and finish this program?" "Don't know. Don't know." I said, "Neheda, I'm faced with a difficult situation. I have to protect the program. If I don't have you making the program I have to make some other arrangements. You have to give me an answer." "I don't know." "Well, Neheda, I have to make a deadline here, because otherwise I don't have enough time to get someone to Melbourne to get this program to air on Sunday. You've got until
5 o'clock to tell me whether you're going to come on and finish this program".

PN5065

This is approximately at 2 o'clock in the afternoon, you were having this conversation?---That's right.

PN5066

Okay?---At approximately 3.30 she rang back. I happened to be stepped out of the office. She left a message. At around 3.35, I rang her back. She was a bit calmer but she was not communicative. She said, "Yes, okay, I'll come in and finish this program." I said, "Okay, I'm coming down to Melbourne. I want to have a meeting with you." I said, "I'll come down on Monday and meet you," and then I remembered that Monday is normally her day off, and I said to her, "Is that okay with you, because we can make it on Tuesday if you don't feel you can work on the Monday?" She said, "No. I want to have this meeting as soon as possible." I said, "Okay. I'll meet you in the office at 2 o'clock on Monday."

PN5067

You were quite specific about where you were going to meet?---Absolutely. Meet her in the office at 2 o'clock on Monday.

**** WALTER STUART HAMILTON XN MR SMITH
PN5068

Okay?---I went to Melbourne.

PN5069

Just before you get to that point, Mr Hamilton, did you set an agenda for this meeting? Did you express the sorts of things you wanted to discuss with
her?---Look, she was not in a state to have a discussion like that.

PN5070

Did she raise any particular issues that she wanted to discuss with you, at that point?---No. No. She was glad that I was coming down to have a meeting.

PN5071

I understand from what you've said earlier that you had already discussed that email where she raised the Luisa Saccottelli matter?---Yes.

PN5072

And the meeting that she had had with Marco Bass, so you had already discussed those issues?---We had already discussed those issues. We didn't have a further conversation on that Thursday about any specific issue of that sort.

PN5073

Before you get to what happened, to your Monday morning meeting; what was your understanding of what occurred on the Friday, Saturday following 1 April; that would be 2 and 3 April?---What happened was, speaking to Alan Kohler about the arrangements that would be made - because the Thursday that Neheda left the program, there was no feature story that week, so one of the core elements of the program had fallen through, that is, the feature story. So, the interviews were an even more vital component of the program. If we were going to make the program, we needed these interviews to go right, and Alan told me that they would battle through, that he and Jeff and Rebecca, they would make arrangements to get things done. Get those interviews recorded, in the can, and the editing process underway.

PN5074

Sorry, this conversation was when? On the Thursday?---This was on the Thursday when that work had to be done, and it's my understanding that Neheda did come into the office on the Friday and the Saturday. But from what both she and others have said, she was there, but most of the work had been done, the core component of the program had been done, that is, to make those interviews and get the editing process in train. Now, I will say about the interviews, and the role of an EP, we know things can go wrong in television, for heaven's sake, we know they can go wrong. We just had a recent incident where a recording that Neheda had hoped had been made of an interview, had been erased by human error. She was on the spot trying to fix it.

PN5075

This was the 19th March?---This was the earlier episode, just to take, as an example, one of any number of examples of what can go wrong in the process of making television under a deadline. That's the role of an EP, is to be on the spot making sure that if things go wrong, we put them right. If you can't be there, you delegate. If you don't delegate, simply leave the ship, then it's rudderless, and that was my concern.

**** WALTER STUART HAMILTON XN MR SMITH
PN5076

Did you have any conversations with anyone else regarding your concerns on this matter?---On the Thursday?

PN5077

Yes?---Well, no. Apart from telling John Cameron that we had a situation in Melbourne.

PN5078

That was all you did at that point?---That's right.

PN5079

He left it to you, I understand to address that?---Yes.

PN5080

In the event, the program went to air on the Sunday?---It did.

PN5081

So we now move to Monday the 5th?---Yes.

PN5082

You arrived in Melbourne. Did you have a meeting with Marco Bass and Alan Kohler on that day?---I came to Melbourne. I don't even know whether Marco was in the office when I arrived, to tell you the truth. I don't have any strong recollection of a discussion with Marco prior to my meeting Neheda that day.

PN5083

What about with Alan Kohler?---With Alan, I don't think he was in the office, again, when I arrived. He came to the office later in the day. The person who was there in the office was Jeff Hutchison. Now, I'd spoken to Alan over the phone, as I mentioned to you, to get his account of what happened. Jeff is a very senior journalist, experienced journalist, has worked with Neheda for some years in another capacity, and so I asked him what had happened on the Thursday to precipitate Neheda's walkout. And he reaffirmed exactly what Alan had said, that they were having a normal program discussion, that Alan had, in the course of that discussion, expressed his view which, as I've said before, was my view, that the First Person segment should not be dropped if possible, and that Neheda erupted at that, said that she couldn't cope, that Alan was sort of the last straw, you know, the "Et tu Brute?" kind of reaction.

PN5084

Let us get this clear. Jeff Hutchison was saying that Ms Barakat erupted at that meeting, or was this after that meeting?---No. At that meeting, that she took a strong exception to what Alan had said during that program meeting, and that led to her departure, and Jeff said to me that Neheda had said, "I'm going to call Hamilton and resign."

PN5085

Can I just get that clear? Jeff Hutchison is saying that Ms Barakat said that to him?---Yes. That's right. He also said to me that he knew Neheda from earlier days, and this was something he'd seen before. Alan Kohler had told me - and he had not told me this before, but - he told me on the Thursday that she'd walked out before, and that - sorry, I'm going back and forth a bit here, but - when I spoke to Alan Kohler on the Thursday, he told me that Neheda had walked out before, and I basically tried to find out, how did this happen, I mean, what's going on, is there any antecedent, sort of thing? He said, "Well, she's done it before, and on that occasion, I went and coaxed her back," and Alan said, "Look, I've had enough of this. I'm just not going to do - - -

**** WALTER STUART HAMILTON XN MR SMITH
PN5086

Sorry. When you say, "I went and coaxed her back," Alan said this?---This is Alan Kohler, sorry.

PN5087

Okay?---I'm just concentrating - taking you back to the conversation with Alan. "On that previous occasion I'd gone back and coaxed her back, and I'm just not going to do it again. I've had enough," was Alan's position. Now, on the Monday that I was in the office prior to meeting Neheda, trying to find out from other members of the team what had gone on, I spoke to Jeff Hutchison, and he volunteered to me that he felt that Neheda - this was behaviour that you could expect from Neheda. She was like that, and that she would change back and forth rapidly.

PN5088

What do you mean by that?---She would present normal. After an episode like this, she would present normal, but it would happen again, he told me. So, I'm learning a bit more about Neheda from people who had known her longer than I had, and worked intimately with her, when I had not. So, what have I got? She said to me on the phone the previous week, she didn't know whether she could carry on, and I'm heading - because she had said that to me on the previous week - I'm getting various things muddled here, but I'd contacted Kate Marshall, and advised her that I was going to have a meeting - this is going back, sorry, to the Thursday after I'd arranged with Neheda to see her on the Monday.

PN5089

Right?---Sorry. I'm confusing it. I contacted Kate Marshall, who I knew had been working with Neheda on some other issues and therefore had a working relationship with her, and said, "I'm going to meet Neheda," and I said in that email to Kate that I don't know whether she can or whether she wants to continue. I don't know whether she can or she wants to continue" I said to Kate, "so can you come along if necessary?"

PN5090

What was the purpose then of bringing Kate Marshall from human resources to this meeting?---Well, because I had an EP who was telling me that she didn't know whether she could carry on. I think she should have had someone there who she knew, supportive. Also I didn't want to get into a discussion where there was only going to be two of us there. He said, I said situation. I wouldn't like that. I'd rather have someone else in that meeting.

PN5091

Okay?---And that's what I said to Kate. Now she responded to me and said that yes, she had heard I think from Hanan, another HR manager in Victoria, that Neheda had left the building and that she, Kate, would be in touch with Neheda I believe. Anyway, I think you asked earlier was there anybody else I contacted about this.

**** WALTER STUART HAMILTON XN MR SMITH
PN5092

Yes?---I omitted to say that I had contacted Kate Marshall in relation to the meeting on Monday. So where are we up to no on Monday, sorry?

PN5093

You were in discussion with Jeff Hutchison?---Yes. Okay, and so Jeff had said what I relayed to the Commission about his view of Neheda.

PN5094

At this point, Mr Hamilton?---Yes.

PN5095

Had you formed a particular view or reached a conclusion regarding Ms Barakat's future in the role as - - - ?---No. I had not. I hadn't formed a view. All along I'd been trying to urge her by phone conversations and emails to focus on the program, to realise that she's got support from me, to deal with the problems that she was having more imaginatively, to realise her responsibilities in relation to those problems. But all along I've been trying to encourage her to go forward, to get over the problems. The episode on Thursday for me was a very serious episode. Two reasons; one, what Neheda did, secondly what she said to me on the telephone when I asked her what her state of mind was. That I didn't have an EP that I was sure was capable or willing to continue. I didn't know that. So the meeting on Monday for me was to find out, one, whether she could and wanted to carry on, and two, whether she understood the significance, the seriousness of what she had done on Thursday and, three, whether we would avoid such episodes again.

PN5096

Just before we get to the meeting you did have on Monday the 5th, you have mentioned here that on a number of occasions over the previous 12 to 18 months you have had conversations and discussions with Ms Barakat regarding her performance. These were I think, in your words, almost like fatherly advice; is this the sort of approach you take to performance management for example, with respect to your various EPs?---Absolutely. One is constantly engaging with them both about the professional discipline, that is the quality of the work, about their capacity and their skill development, about the process of doing the job they've got and I've always tried to urge Neheda to learn and develop particularly in the area of dealing with people, managing people; managing what she perceives as a crisis.

PN5097

THE COMMISSIONER: Mr Hamilton, can I ask you directly?---Yes.

PN5098

Do you regard fatherly advice as performance management?---Performance management as I understand it in the ABC is an ongoing - it's a continuous process of feedback.

**** WALTER STUART HAMILTON XN MR SMITH
PN5099

If somebody has poor performance, do you regard giving fatherly advice as implementing clause 23 of the agreement?---I characterise the way in which I delivered the advice that I gave as fatherly advice to set the tone of trying to be supportive and yet to encourage her to modify her behaviour to improve her performance.

PN5100

So, as a senior manager of the ABC, I can rewrite the agreement for the heading that says, Performance Management, to include fatherly advice?

PN5101

MR SMITH: Commissioner - - -

PN5102

THE COMMISSIONER: I asked a question of your witness, please, Mr Smith.

PN5103

MR SMITH: Okay.

PN5104

THE COMMISSIONER: You are a senior manager of the ABC, is that the answer you are giving me, that I can rewrite your agreement? It is headed, Performance Management, in your agreement, and that I can rewrite that to say Performance Management or Fatherly Advice, because they mean the same thing?---I characterised the tone of the way in which I performance managed her on that issue. I didn't say performance management equalled fatherly advice.

PN5105

No, the question that was put to you by Mr Smith was put to you in a deliberate way to have you answer it on the basis that fatherly advice was performance management?---I'm sorry, I didn't understand the question. I'm sticking to
that - - -

PN5106

All right. I am sorry. That is what raised my concern because I thought you were answering it in a way that equated the two because it was put to you that
way?---No. I'm sorry, I didn't equate the two. I was trying to characterise my manner of dealing with Neheda.

PN5107

All right. I understand that. Thank you.

PN5108

MR SMITH: If I can just correct that, Commissioner. I was not actually seeking to have him equate. I was actually trying to get some information about - which I will pursue now - - -

PN5109

THE COMMISSIONER: I can play back the question if you like.

**** WALTER STUART HAMILTON XN MR SMITH
PN5110

MR SMITH: No. I understand how you may have - - -

PN5111

MS CONNOR: ..... stop there, do you think?

PN5112

MR SMITH: Thank you for your advice.

PN5113

MS CONNOR: I have learnt a lot about that.

PN5114

MR SMITH: Commissioner, may I continue with that line of questioning. I was actually seeking from the witness what steps he had taken over the course of his management of Ms Barakat towards developing her - that was my question.

PN5115

THE COMMISSIONER: Well, you see the reason I raised - - -

PN5116

MR SMITH: I understand and I do apologise if I put that question clumsily. It sometimes happens.

PN5117

THE COMMISSIONER: All right. Thanks, Mr Smith . Please go on.

PN5118

MR SMITH: So I will try now and put this question unclumsily. What steps did you take during the course of your management of Ms Barakat to address any concerns you may have had with her performance?---In relation to the concern that I had about the breakdown in the relationship between her and Greg Hoy, I spoke to her during the period when Greg was still in the program and urged her to pursue other strategies for dealing with a staff member. I urged her to realise that the responsibilities of the executive producer role put the onus on her to set the tone and to find strategies for resolving these issues. I spoke to her about her concerns about his performance and they were characterised in pretty vague terms about, He, well, I never quite know where he's at with his story, and I would say to her, Well, are you talking to him about that? "Well, no, he's very difficult to talk to." Is that the end of it? I mean, are there other ways of dealing with a failure of communication between an EP and a reporter? She didn't come to me and say, "I can't work with this person because he refuses to show me his scripts or refuses to talk to me about his work, refuses to take direction." The generalised sense was this is a difficult person. Likewise, it was quite a generalised sense until I saw the email on 26 March in which she talked about Luisa Saccottelli in terms of essentially being erratic. You know, setting off with enthusiasm and not being able to deliver. Until then nothing had been said to me in specific terms about Luisa's performance except that she was a difficult person. As I said to the Commission earlier, I've been raising with Neheda on several occasions my concerns about her ability, her skill, in managing people.

**** WALTER STUART HAMILTON XN MR SMITH
PN5119

Did you seek or identify any training programs or training courses for
Ms Barakat?---At that time in 2004, news and current affairs designed a course for senior editorial staff, executive producers among them, to take them through issues such as conflict resolution, performance management and other issues to give them a greater depth of skill in developing those things and I put Neheda's name down to attend that course which I think was due to get underway in May 2004. The course was going to run all the rest of that year. It was on-off meetings in Sydney and other places and workshops and exercises and so forth.

PN5120

So at this point you have got Ms Barakat nominated for that course; is that correct?---That's right. That's correct.

PN5121

Let us then go to the meeting that you held with Ms Barakat on Monday 5
April?---Yes.

PN5122

You said that you had intended to have that meeting at the ABC I
understand?---On all previous occasions when I had met Neheda, we had met in the office at the ABC.

PN5123

On all previous occasions; is that correct?---On all previous occasions we had met in the office at the ABC. Subsequent to meeting at the ABC in the office we had gone to various locations to continue a meeting.

PN5124

I see?---They had included the atrium area of the Southbank building, outside the news and current affairs office and to a coffee shop, typically the one coffee shop across the road from the ABC. We had also met in vacant edit suites if they were convenient but the point here is that on every occasion I'd met Neheda I'd met her, that is greeted her, at the ABC so there was no ambiguity when I'd said to her, I wanted to see you at the office on Monday.

PN5125

What actually happened?---I came into the office and I heard from Sue Charleson, the assistant to Marco Bass that Neheda had left a note I think on the Saturday on her desk or left a note for her anyway saying that she wanted me to come to a café in the suburbs - Armadale, I believe - and I must say, first of all, I was taken aback at the idea that, one, she had not rung me - well, again she had not rung me to have a basic conversation about a pretty material matter which was a meeting that both of us realised was important, to make a change of arrangement. Indeed she left a message with an assistant of the editor and because I had asked Kate Marshall whether she might be able to attend, if necessary, that meeting this complicated it for me because she didn't want to have it on base now. So I asked Sue, because I was busy in the unit trying to find out what had been going on the previous Thursday, I asked Sue to contact Neheda and say, Well, more convenient for me would be something a bit closer to the ABC which is the coffee shop in the hotel which I used up the road, up St Kilda Road about, you know, 10 minutes away, five minutes away, the Sebel, and so that meeting was at 2 o'clock now at this new location.

**** WALTER STUART HAMILTON XN MR SMITH
PN5126

When you attended that meeting what, again, was your agenda?---I came into the meeting and the first question I put to Neheda was, "Neheda, when I spoke to you on Thursday you told me you didn't know whether you could carry on. Is that still your frame of mind?" That was the first question I asked. My agenda, if you put it that way, was to find out what was her state of mind, was she going to continue, had her overheard references to her resigning crystallised in her mind, had the fact that she said to me on the Thursday that she felt she couldn't cope any longer, was that still in her mind? Her response to that question was abrupt and immediately defensive. It was, "Oh, only if" - that is, "I continue only if everybody lets me get on and do my job."

PN5127

Did you ask her what she meant by that?---My immediate question was, "Are you referring to the meeting that you had with Marco Bass a week or so ago, the meeting in relation to production resources?" She said, "Yes." I said, "Well, Neheda, I'd already spoken to you about that and I'd explained that Marco has responsibilities for the relationship between news and current affairs and production resources and if he has a concern that relationship may be impaired or damaged in any way, it's particularly appropriate for him to inquire." She moved on immediately from that to, "Well, now it's Alan Kohler. He's against me too." I said, "Well, Neheda, the point about Alan saying to you that we should retain the First Person segment is the very same point that I made as your manager when we had the program review." She spoke then about Graham Nicholas as being a person who was always offensive. I mean, a generalised accusation about someone who I had never heard described as always offensive. I knew Graham is a prickly customer, could be a prickly customer. You had to win a smile from Graham from time to time but there were always ways of doing it and I said to her, "As I said to you before, now you have to work with different kinds of people, you have to find to get on with different kinds of people."

PN5128

In this meeting did you at any stage say to Ms Barakat that you were not prepared to discuss those issues with her?---I had asked her specifically about one of those issues, the only issue that for me was on the table, which was the issue that she had raised about Marco and Graham Nicholas. I asked her about that and she responded that that was the evidence that people were not allowing her to do her job and I explained to her why I thought it was appropriate for Marco, as I had before, to ask her about that meeting. Now, it's important to remember that she didn't say to me that Marco had "behaved badly towards me, that he had threatened me that, you know, he'd abused me." What she had said to me in the email and what she was saying to me in this conversation was - and this is a bit truncated in this particular matter - was that she didn't like the fact that he had asked her about this question of her behaviour and for me that was - I explained why it was appropriate.

PN5129

Were you dismissive of her concerns?---No. I wasn't dismissive of her concerns. What I said to her as we went through this matter of talking about Marco's asking her, about her concern about Graham Nicholas being a person who was always offensive; I said to Neheda, "Neheda, what I want you to focus on and give me an explanation for is your behaviour on Thursday. The fact that you left the program, walked out on the program on Thursday." Her response to that was, "I did the research".

**** WALTER STUART HAMILTON XN MR SMITH
PN5130

THE COMMISSIONER: I am sorry. I did not hear that?---I did the research.

PN5131

I see. Thank you?---I was quite dumfounded that an executive producer would excuse her behaviour on the basis that she had done the research for the interview. There was absolutely no admission or recognition of accountability or responsibility for her actions. They were trivial. It was a hiccup.

PN5132

Are these your words or her words?---No. Her words, and I'm trying to weigh up what I know happened on the Thursday, what I knew of the episodes involving Marco, Graham Nicholas, what I knew about the program that we had reviewed the previous week, against this reaction and it didn't match up. It just - there was no objective correlation, if you like, between what she had done and her denial of responsibility, of having a role in this. She had done the research and I said "Well, you know," I said to her "look, that's not an acceptable answer, Neheda. You're the executive producer of the program. You're not employed as a researcher". To give an answer like that to me, you know, I found it quite impertinent, in fact.

PN5133

What was your demeanour during this meeting?---I was calm and deliberate. I needed to get from Neheda answers to the questions of what her state of mind was and whether she understood the significance of what she had done on the Thursday and whether I was dealing with an executive producer who could be relied on in the future not to do a similar thing again.

PN5134

In response to her reason that she could continue or her answer that she could continue provided everybody stopped interfering and left her alone to get on with her job?---Yes.

PN5135

What was your response to that?---My response to that was to ask her was she referring to the episode with Marco and she said "Yes". She didn't enumerate any other episodes to justify "everybody's against me" except to refer to Alan Kohler, you know "that was the last straw with Alan."

PN5136

I just wanted to clarify that those were the issues?---Yes.

PN5137

How long did this meeting go for?---Twenty minutes or half an hour, something like that.

PN5138

In Ms Barakat's grievance raised concerning you?---Was this the grievance in May?

**** WALTER STUART HAMILTON XN MR SMITH
PN5139

This was the grievance that was actually lodged - - - ?---Or in June, sorry.

PN5140

In June, yes?---June. Yes.

PN5141

If I may, I will just read to you what she has said her in quotes. She says that she recognised that you had already made up your mind and she pointed out that your view was one-dimensional and asked you to say what you really wanted to say and then she says that you said that:

PN5142

You no longer have confidence in her to manage the program and I want to put you back to being a producer, let's say on The 7.30 Report.

PN5143

Is that what you actually said? Could you outline for the Commission - - - ?
---Well, we got up to a description of this meeting to the point where I'm saying to her "Neheda, do you understand the seriousness of what you did on Thursday?". Her response was "I did the research." I said, "Neheda, I don't think that's an acceptable answer. I didn't employ you as a researcher. You're there as the person responsible for this program." I asked her again whether she acknowledged that what she had done was inappropriate. She refused to acknowledge any inappropriate behaviour on her part. I constantly sought from her some indication that she was conscious, self-aware about the issues. She just was unresponsive. Gave no indication to me that she was self-aware. She was in denial and progressively to my questions her answers became single word answers or not answer at all, simply an Mm a non-committal. She said to me "What is it that you have in your mind?" This has gone on now where I'm getting no response, no reassurance from her, no acknowledgement from her. "What is in your mind?" And I thought, well, I reached the point, what can I do? I don't believe that this person can be relied on not to do the same thing again. There was no acknowledgement on her part that there was anything wrong. Her whole manner in dealing with me in that meeting had been quite uncommunicative. The way in which she had not even communicated with me on the day she left until I contacted her. She didn't communicate with me over the weekend when she decided on a change of venue. I really didn't feel that I could rely on her to communicate with me and tell me where she was at. So I said to her, "Look, Neheda, I've got to tell you I've lost confidence in you" and where she was effective as a producer was as a television program maker. She's imaginative, she has a good eye for television, she has experience in turning difficult intractable business subjects into television. I thought the best thing for her would be for her to go back into The 7.30 Report where she would be able to exercise her undoubted skills in that area. I said to her, "Neheda, that's what I think is the best thing for the program. I have to protect the program. I think its' the best thing for you because I don't get any sense from you that you really are aware of the circumstances of where we've arrived at. I think it's best for the unit." Because I'd seen the breakdown in the relationship and heard it from Alan. I'd heard from Jeff Hutchison as to his view of where things were likely to end up again. I said, "That 's where I think we should be going." I said, "Because this has arisen unexpectedly, there isn't a vacancy in The 7.30 Report that I'm going to slot you into. We're going to have to make some arrangements. So I want you to continue in the program at Inside Business until those arrangements can be put in place and I asked her would she then be coming to work tomorrow, the Tuesday." She didn't respond in any clear way to any of these propositions. "I'm listening, yes. Oh, I see, Mm." I asked her again, "Are you coming to work tomorrow?" "Don't know". So she at this stage was making body movements to get out of her chair and terminate the meeting. As soon as I had said to her that I can only conclude that I've lost confidence in you and I think we need to go on this course. She didn't want to engage any further in a conversation and I couldn't even get her to answer the question whether or not she would come to work the following day. That's when the meeting ended.

**** WALTER STUART HAMILTON XN MR SMITH
PN5144

Was transferring her to another area the only option that you had in your mind at that point?---I couldn't see another option. If I had not transferred her or had not set out this process of transferring her and she was going to stay at Inside Business indefinitely, I just thought that the program was in jeopardy.

PN5145

I will put it to you squarely in this context. We have already had a bit of an exchange about performance management; did you consider following a performance management process, a more formal performance management process in her current role or in her then current role?---I just didn't see there was a reasonable chance of success. I mean, if we had a starting point in this process of getting some inkling from her that she understood that what she had done was not tenable then maybe we might have been able to make some progress back. But there were issues in terms of her wellbeing, my assessment of whether or not, you know, physically and emotionally she was well enough to do the job of an EP, given the extra responsibilities in terms of managing staff in particular. Secondly, you know, I had other staff, key staff in that program -it's a small
unit - who were giving me the distinct impression that they didn't think that they had a sound arrangement in the program; either that Neheda could be relied on not to do the same thing again. In the case of Jeff Hutchison or in the case of Alan Kohler, that he was happy with the idea of having to try and coax Neheda back to work if she were to go off again. He wasn't.

PN5146

THE COMMISSIONER: Mr Smith , I am sorry. I am going to need to adjourn very shortly, a little earlier than normal for today. There is a matter I have got to attend to and we will resume at 2.15 but could I just clarify in my mind,
Mr Hamilton; the basis upon which you went into that meeting as I recall your evidence it was a statement by Mr Bass that Ms Barakat had told people she was going to resign. That was the first one. Your conversation with Ms Barakat that she did not know if she would do the program - - - ?---No. No, first of all in the first conversation - - -

PN5147

Yes?---- - - she said "I don't know whether I can carry on."

PN5148

Whether you can carry on?---And the second conversation - - -

PN5149

She said she would do the program?---She did the program after I coaxed her.

PN5150

I see?---Yes.

**** WALTER STUART HAMILTON XN MR SMITH
PN5151

The statement from Mr Kohler that Ms Barakat had behaved similarly before and that he had had enough?---Yes. I have not said it in evidence at an earlier point, Alan Kohler affirmed that she had said, "I'm going to call Hamilton and resign." So it wasn't just - - -

PN5152

So Mr Kohler said that as well as Mr Hutchison?---Yes. That's right.

PN5153

So Mr Kohler had also said that she said, "call Hamilton and resign," and then a conversation with Mr Hutchison, where he told you that Ms Barakat had said she was going to call Hamilton and resign?---Yes. That was the one conversation.

PN5154

I am sorry?---The one conversation with Jeff Hutchison. Yes.

PN5155

Yes, and that in that conversation he also said that Ms Barakat would do this again?---In his view she would do it again. That was his experience.

PN5156

So that was, if you like, the background that you had been given when you went to your meeting with Ms Barakat?---That's correct.

PN5157

From there - - - ?---That's what I heard from those people.

PN5158

That is what you had heard from others?---Before I saw her at 2 o'clock on the Monday.

PN5159

Then the important thing in that meeting when you made your own assessment was the failure of Ms Barakat to appreciate the seriousness of, I think you said walking out on the program?---Yes. That for me was a key issue.

PN5160

A key issue in your judgement?---Yes.

PN5161

All right. Sorry that we have to cut this 15 minutes short but we will adjourn until 2.15 and we are in a sensitive part of evidence, Mr Hamilton. I have not given the usual statements in the past but if you would not discuss your evidence during the adjournment. Thank you. We will adjourn till 2.15.

<LUNCHEON ADJOURNMENT [12.30PM]
<RESUMED [2.20PM]

PN5162

THE COMMISSIONER: Yes, Mr Smith.

PN5163

MR SMITH: Thank you, Commissioner.

**** WALTER STUART HAMILTON XN MR SMITH
PN5164

MR SMITH: Mr Hamilton, just before the luncheon adjournment I think we had just reached the conclusion of your meeting with Ms Barakat on Monday
5 April?---5 March. Sorry, 5 April.

PN5165

Yes, 5 April. You had me worried there for a moment. Can you just reiterate what the concluding arrangements with Ms Barakat were as of the end of that meeting?---When I concluded the meeting with her because I didn't feel she was responding to any of my further questions about - excuse me can I just take a glass of water? I didn't feel she was responding to my questions about where we would go from her in relation to my proposal that she move over to 7.30 Report and more precisely whether she would attend work the following day. I got no responses to that. She was indicating that she wanted to end the meeting by starting to get out of her chair. I didn't see any point continuing to try and get answers to questions which I had repeated several times so the meeting concluded. I went back to the office at Southbank. I had a conversation with Kate Marshall about the meeting that I had had with Neheda and I explained how it had gone and Kate made a couple of points to me. She said one, "Did you operate under 19.3?" I said "Yes, I wanted to move her to another position". "Did you make it an offer or did you tell her that she had to move?" I said "I set forward a proposal to her". "Was it an offer?" "Well, as I understood it I was telling her that's where I wanted to go". Secondly she said to me "And is she going to remain on the same point?" That is a point 38 band, 8 at that stage. I said "Yes. She will remain on the same point. There's no suggestion that she's going to be moved to a lower salary point" and she said "Does Neheda know that?" and I said "Well, actually we didn't get to that because I couldn't get a conversation with Neheda about where we were going to go". Thirdly she said "Well, you should clarify that with Neheda" and I said "Yes" and she said "You should also tell her that you need a response by a reasonable time" and we settled upon, I think, the Wednesday from memory, the 8th.

PN5166

THE COMMISSIONER: The response to what, Mr Hamilton?---A response to my proposal that she move to The 7.30 Report.

PN5167

What response did you expect?---A response. Sorry, what - - -

PN5168

What response could she give?---What response could she give?

PN5169

Yes?---She could give the response of "I don't want to do that" or "Are there other programs or other roles that I could do" or "I will do that".

**** WALTER STUART HAMILTON XN MR SMITH
PN5170

The option of remaining at Inside Business was one that was no longer
available?---I had made a proposal that she go to 7.30 Report in the meeting I had with her - and I'm sorry if this is a long answer because it was my frame of mind at the time. I had made a proposal that she go to 7.30 Report on the basis that I didn't believe that the response that she had given to me about my concerns would lead to the problem being rectified by any other means except moving to another program area, another role.

PN5171

Yes?---The reason for that being is I just felt the program was in jeopardy and the relationships had broken down.

PN5172

Yes. Yes, I understood - - - ?---So that was my proposal to her.

PN5173

Yes?---Now, was there no possibility of her returning to Inside Business? That possibility was still there, possibly after a period of time if she had had a period of time somewhere else.

PN5174

I see?---But the point is that after this meeting on the 5th I sought to engage her to discuss the matters that I raised which were my concerns about her behaviour.

PN5175

Yes?---Seeking some, what I considered to be necessary, modification in her appreciation, her apprehension[sic] of what had happened.

PN5176

So as I understand your evidence, you were acting under 19.3 to transfer
her?---Mm.

PN5177

Your offer at that stage was The 7.30 Report?---Yes.

PN5178

But you may have been open to other suggestions?---Other program areas? Yes.

PN5179

Other program areas?---Yes.

PN5180

But that you had lost confidence in her in relation to the Inside Business?---I didn't see it viable in her continuing from that day forward.

PN5181

Yes. I follow?---Okay.

PN5182

MR SMITH: Which leads me, I think, to my next question which was did you give consideration to managing what I guess is in your mind now underperformance through the performance management system in the Inside Business program?---When I was considering what we should do in the meeting on the 5th I needed to feel that she had apprehended the seriousness of what she had done, that her responses would indicate to me and reassure me that we wouldn't have a repetition of that. I didn't see any reasonable conclusion to be drawn that that was possible, based on her responses to me. Now, when I finished the meeting with her on the 5th - excuse me.

**** WALTER STUART HAMILTON XN MR SMITH
PN5183

THE COMMISSIONER: Take your time.

PN5184

MR SMITH: I will just flag, Commissioner, when we need to seek a moment or two.

PN5185

THE COMMISSIONER: That is fine. Any time you think you need a break,
Mr Hamilton?---It's just it hasn't warmed up yet I'm afraid, Commissioner.

PN5186

Yes. That is fine?---So when I finished the meeting with her on the 5th I came back to the office, as I was saying before, and I had the conversation with Kate Marshall about the matters that I mentioned. So I immediately rang Neheda and I said to her "I want to make it clear that when we had the conversation earlier three things are important" that she should understand. "One is that I am making an offer", I used the word "offer". I had not used the word "offer" before, I had talked about a proposal as my desire. I used the word "offer" on the advice of Kate Marshall because it seemed to be significant for her. "Secondly," I said "I wanted to affirm that you don't move down the pay scale. You remain in band
8 at point 38" and she said "Oh, that had not come up in our conversation previously". She sounded somewhat reassured about that and I said that I would like to have a response by a reasonable time. I may or may not have mentioned Wednesday again but subsequently that same day and within a short time of that phone conversation I set out in an email to her the concerns that I had about her action on the Thursday before; my concerns about the nature of her responses to my questions in the meeting of the 5th and asked for her to respond to my proposal or my offer as I put it in the email, that she go to 7.30 Report and that she respond by 8 April.

PN5187

MR SMITH: This was an email that you sent to her later that afternoon?---The 5th, yes.

PN5188

I think that's an email that appears in the Alliance's C1, Commissioner. It's dated Monday 5 April. It appeared to have been sent at about 7.18 so about 20 past
7 that evening, you sent that email I presume?---Yes. It was later that day.

PN5189

Did you get a response from Ms Barakat?---I had asked, as I said to you and I said to her in the email "I'd like a response by the 8th". I did not receive an email response or a phone call from Neheda through my email system on the 8th. However, as it transpired the ABC network PC mail system was dysfunctional that day and was having problems. The email didn't come through. Because it had not come through on the 8th I rang Neheda and left a message on her phone saying that I was still expecting to hear from her that day. She in fact had sent a response. She had copied it to Kate Marshall and Kate subsequently contacted me to say that she had got the email and as a result both Kate and I knew that she, Neheda, had responded. There was an interruption to the communication partly due to the PC mail problems.

**** WALTER STUART HAMILTON XN MR SMITH
PN5190

But again for the purpose of the Commission, Commissioner, that is an email which is also in C1. It's 2 pages. I think it's a Hotmail email. So you subsequently got this email response from - - - ?---I got a response from Neheda and the response was that she didn't want to go to 7.30 Report, that she characterised the concerns that I raised with her about her actions in the meeting on Thursday, she characterised those as trivial concerns and she - - -

PN5191

THE COMMISSIONER: Sorry, I just wanted to find that email if I could. Have you got it?

PN5192

MR SMITH: It's in C1 behind the green divider.

PN5193

THE COMMISSIONER: Yes. I see, so it is the MSN Hotmail.

PN5194

MR SMITH: Yes.

PN5195

THE COMMISSIONER: Is Mr Hamilton's 5 April email to Ms Barakat and then the one behind that - - -

PN5196

MR SMITH: It's the second page. The first page is the page behind that again, I think, at least in my copy, Commissioner, it starts off "Dear Neheda, your email only arrived a short time ago". That was from Mr Hamilton.

PN5197

THE COMMISSIONER: Yes. I have tracked it down now.

PN5198

MR SMITH: Thank you.

PN5199

THE COMMISSIONER: There is a plethora of emails which we - - - ?---There's a lot of correspondence, yes.

PN5200

MR SMITH: Can you just take the Commission through your response then to - in that email from Ms Barakat your response, which you have said here:

PN5201

I am not aware that you have been denied any safeguards under the employment agreement.

PN5202

If you could perhaps take the Commission through - - - ?---If my memory serves me correct, and I don't have the advantage of the hard paper in front of me, but
- - -

**** WALTER STUART HAMILTON XN MR SMITH
PN5203

THE COMMISSIONER: I will hand it to you so you can see it?---Okay. That would be the best way. In her - - -

PN5204

Is that the one?---There is also her response which she emailed to me on the 8th.

PN5205

MR SMITH: It's the second page. In my version, Commissioner, it's actually the page just in front of the one you have handed across to the witness.

PN5206

THE COMMISSIONER: Right.

PN5207

MR SMITH: It's a very short one.

PN5208

THE COMMISSIONER: Let us hand both of those?---Thank you. Yes, okay, so my email on the 5th following our meeting which set out for her to read concerns that I still had and she responds to me where she says:

PN5209

As you are aware, I have been on sick leave since we spoke. I don't feel that I have been given the benefit of the various safeguards given to staff in the certified agreement. For this reason I do not accept your offer. I will write to you again tomorrow setting out my position in more detail.

PN5210

Then I respond to this by trying to get her to explain what she means by being denied safeguards. I'm not aware that she had been denied any safeguards. I reiterate that my job as a manager is if I have a concern with a staff member I'm responsible for, that I will raise it with that staff member. As far as I'm concerned in this email I believe that I've acted within the agreement and responsibly as a manager protecting her interests, the interests of the other staff and the program and that I wasn't reassured by the responses that she gave me when we met on the 5th. I say in this email to her that I regret she was unable to attend work because of sick leave and that I need to do some things to ensure that Inside Business continues to get to air smoothly and those steps I set out to her. There's no ambiguity that what I'm doing is an interim arrangement, pending further discussion with her. "I must act now to ensure there is no further hiatus in the production leadership of Inside Business. Peter Ryan," now Peter Ryan is a production editor based in Sydney, "Peter Ryan is going to Melbourne to see the program to air next week and thence at least until after you are back from leave and we have engaged further. Program staff are being advised. I will carefully consider your letter when I receive it". So what I had to deal with was one, Neheda was flagging that she felt she had not had her rights as it were. Secondly, because she felt she had not had her rights, she wasn't going to accept the position. Now, she wasn't going to accept the position because she didn't want to go to The 7.30 Report or because she didn't have her rights. I had not had that clarified yet. I needed to protect the program, keep it going on air so I needed to put someone in there temporarily which I did. I brought Peter Ryan up on a temporary basis. Now to emphasise that it was temporary I instructed Peter that Neheda Barakat's name as executive producer of the program would continue to go to air in the closing credits of the program, which did happen. This continued for some weeks however by that stage after some weeks when Neheda was not coming to another meeting with me, despite my attempts, but maybe rather than not prolong this answer we'll get to that stage.

**** WALTER STUART HAMILTON XN MR SMITH
PN5211

THE COMMISSIONER: Can I ask you, because that again was the focus of my question to you earlier?---Mm.

PN5212

From your earlier answers I did not understand you to say that your decision was of a temporary nature, that she move. That it was a concluded view and I think your words were whether she could come back at some time in the future, it might be possible. I did not understand your answers earlier?---Okay. Maybe can I clarify precisely what I felt at the time?

PN5213

Yes?---I precisely felt at the time that Neheda could not continue at that time in the role of EP of that program.

PN5214

Yes?---It was not tenable. I felt the best option, given her skills undoubtedly as a specialist producer in the business area, she would be well suited in 7.30 Report. That was my first - given that I had really arrived at the situation in a meeting with a staff member on the 5th that was the best option for me. Perhaps there were other program areas, other roles in news and current affairs that might be also suitable. That was one option. Neheda returning to the program in the future, I didn't really have that in my mind. However I said to you earlier I basically was still trying to chart a path forward for a situation, keeping this program on air and dealing with the situation where I felt I didn't have confidence in the EP to continue in the role.

PN5215

Yes, but that is as I understood your evidence?---Yes.

PN5216

That no doubt led to the debate with Ms Marshall as to whether it was an offer or a transfer?---She basically was asking me what had happened in the meeting.

PN5217

Yes?---I was describing what I had said in the meeting and how the meeting had progressed. She wanted to make sure that Neheda was clear about several points, the ones I've enumerated. I rang her immediately and clarified them, if they needed to be clarified.

PN5218

So in your mind it was a transfer at the time. To where could have been a discussion that you might have had?---Yes. Indeed.

PN5219

The subsequent return, if you like, to Inside Business would have had to have been accompanied by a greater level of confidence than you had at that
time?---Yes. Because these were connected things, Commissioner. I believed what was connected was what was a suitable role, given her seniority, skills and experience?

**** WALTER STUART HAMILTON XN MR SMITH
PN5220

Yes?---Secondly, what was her capacity to understand why the situation had arisen and did she show to me any evidence that she had learnt from the experience, would modify her behaviour and would not present me with a repeat of the situation?

PN5221

Yes. Yes, I follow. Thank you.

PN5222

MR SMITH: Thank you, Commissioner.

PN5223

Mr Hamilton, what occurred then? You have clarified - - -?---I've got to the point where I think Neheda has responded to me by email on the 8th and I've sent an email to her - I'm losing my track here, sorry. Okay, I sent an email to her, acknowledging hers and explaining to her the arrangements that I was going to put in place for Peter Ryan for the time being to come up and see the program to air. I don't say I'm appointing Peter Ryan executive producer of the program. I don't say anything more than "He's coming up for at least this week and until we can sort the arrangement". And what's the until? "Until you're back from leave and until we've engaged further". Now after that, again the dates are around about a week, a little over a week after that, during that time between the 8th and around the 13th, 14th, I've had conversations with Kate Marshall. She has been in touch with Neheda and Kate through her good offices is seeking to have a meeting between the two of us to keep the conversation going; for me to have an opportunity to get some responses to the concerns I have and for Neheda to put on the table any information that she has. You can see in the correspondence between myself and Kate Marshall that's where we're going. Quite specifically Kate sends me an email around the 13th, 14th and - sorry, I don't have it in front of me but you may have a copy of it. She sets out her advice as where we should be going with the matter.

PN5224

I am just trying to identify whether that email was included in ABC4. I probably won't find it at all?---It's certainly among emails that Kate Marshall and I have confirmed are in existence.

PN5225

Was that relating to a file note dated 15 April?---It could be the 15th but can I look? Can I see it? I may be able to identify it.

PN5226

THE COMMISSIONER: We need to have a short break. I need to take a telephone call. It is one of those days, Mr Smith. I am sorry.

**** WALTER STUART HAMILTON XN MR SMITH
PN5227

MR SMITH: I understand.

PN5228

THE COMMISSIONER: You can identify that document. Do you think you will be long in .....

PN5229

MR SMITH: I really do need to take Mr Hamilton through - - -

PN5230

THE COMMISSIONER: I am not going to constrain you at all.

PN5231

MR SMITH: Thank you. I would assume so.

PN5232

THE COMMISSIONER: The question was not - - -

PN5233

MR SMITH: No, I would think I have got at least another hour's worth.

PN5234

THE COMMISSIONER: Or as long as Mr Hamilton's voice holds out.

PN5235

MR SMITH: Whichever comes first, yes.

PN5236

THE COMMISSIONER: I will adjourn for five minutes.

<SHORT ADJOURNMENT [2.42PM]
<RESUMED [2.58PM]

PN5237

THE COMMISSIONER: Thanks, Mr Smith.

PN5238

MR SMITH: Thank you, Commissioner. We have identified the relevant emails. They are in ABC4.

PN5239

THE COMMISSIONER: Yes.

PN5240

MR SMITH: If I could get a copy to the witness. Mr Hamilton, there is an email there from Kate Marshall dated Friday 16 April 2004?---Yes.

PN5241

Attached to that is a file note re Neheda Barakat dated 15 April 2004?---Yes. Excuse me. So Kate's file note describes the outcome of contact she has had with Neheda and in response to seeing this file note I contacted Kate - just a minor correction on Greg Hoy's name, I think, in there. Sorry, hold on. Okay. I lost my way. She in the file note says that Neheda refers to a meeting between Alan Kohler and Marco and myself. I have no knowledge what she means by a meeting between myself Alan Kohler and Marco.

**** WALTER STUART HAMILTON XN MR SMITH
PN5242

Did any such meeting take place?---No. It did not take place. On the 5th when I returned to the office I believe Alan and Marco were in the office at this stage. As I said earlier, when I first arrived in Melbourne that morning I'm not sure that either of them was there. but, you know, I didn't occupy myself with them on the morning and in the afternoon I believe they were there. My main occupation when I came back to the office was talking to Kate Marshall and sitting down and preparing a written note for Neheda setting out the matters that had been dealt with in the meeting with her earlier in the day. I had contact with Alan and Marco, I presume. I honestly don't have any detailed recollection. I certainly did not have a meeting with them.

PN5243

In the context of that file note that Ms Marshall has prepared?---Yes.

PN5244

Particularly in relation to her conclusion that "She", being Neheda, "would need to identify us when she was available to have the meeting with Walter". So I presume you were still pursuing a meeting with Ms Barakat at that time?---Yes. I was. I had spoken to Kate Marshall several times. I had in fact during the period we're talking about now, it extends right through the end of April, I made attempts to directly contact Neheda and didn't get any response. I spoke to Kate Marshall several times about progressing the matter, taking her advice. If I can just remind myself of the stuff that was covered in these various notes. Yes, I'm attempting in the note to Kate on the 16th to set the record straight about what I had said in the meeting with Neheda on the 5th and then on the 23rd, we were in the process of trying to set up a meeting with Neheda and Kate sends a note to me in which there's a lot of detail about - - -

PN5245

That email, sorry, just to take you to that?---Sorry.

PN5246

That email from Kate Marshall dated the 23rd is in response to your email of the 22nd attached, I presume?---Yes. Indeed. So I'd said to Kate that I was planning to go to Melbourne to be available for a meeting on the 28th. From memory, in fact, there was other - actually from memory, I think in fact there was an attempt to have an earlier meeting even on the 24th but that just didn't come off for some reason. But anyway this correspondence is about a proposal to have a meeting on Wednesday the 28th and I set out a time and would Kate be available and that Neheda wants to have a representative at the meeting. As far as I was concerned the meeting was a meeting which I, as a manager, had the right to conduct with the staff at any time to talk about performance. It wasn't a misconduct meeting, it wasn't a meeting to issue a performance improvement plan. It was a meeting for me, as I've said before, to get responses to concerns that I had raised with her which I felt had not been responded to.

**** WALTER STUART HAMILTON XN MR SMITH
PN5247

Were you also at that stage still seeking to take on board issues that Ms Barakat wished to raise with you?---I'm sorry, I'm a bit slow getting to what I'm trying to say about this correspondence when I started off, is that the correspondence is about setting up the meeting and the terms and conditions under which the meeting would occur. So one of the issues was whether Neheda would have a representative and Kate comes back to me, my email of the 22nd. She responds on 23 April and she says two pertinent things for me are, one, Kate suggests that I invite Neheda to respond to any concerns I had previously raised and, two, she goes on to advise that I consider allowing her, Neheda, to bring a representative to the meeting and I'm quoting from the email from Kate Marshall to me, "In an effort for us to consider all the information she presents". I took that advice. I sent an email to Neheda doing two things; making clear to her that in this meeting I wanted to achieve a response from her to the concerns that I had raised and secondly agreeing to her bringing a representative, following the advice Kate Marshall had given me that this was advisable so that she, Neheda, could present all the information she wanted to bring to the meeting. So this meeting that we were designing would include me and Neheda, Kate Marshall, someone who Neheda had I think demonstrated through the email exchanges I had seen, Neheda had expressed confidence in. The tone of communication was one that she indicated to me that she believed that Kate was a supportive person, that she trusted her and a fourth person, a person as a representative that Neheda would choose to bring to that meeting. That's the meeting that I was proposing to have on 28 April. It didn't happen.

PN5248

At that point what options were you pursuing; what options were open to
you?---Now from memory I was taking some leave about this time and there was a kind of hiatus going to occur in terms of my ability to attend directly to these matters. I continued to try to have contact with Neheda but at this point I learned from Kate Marshall that Neheda will not sit across the table from me. She won't have any contact with me and that she wants only to deal through Kate Marshall and from that point I kept on asking Kate Marshall and human resources more generally what options were open to me now to try to get a resolution of the matter.

PN5249

What options were open to you?---As far as I was concerned I believed that under 19.3 of the agreement I had the right to move a staff member, Neheda in this case, to another role. I wanted clearly to see whether that could be resolved. I wanted through the process to talk to Neheda about options and I take you back to the initial correspondence from Neheda to me after our meeting on the 5th where she said two things in emails to me; she wanted to discuss the issues and she wanted to talk about other options, that is options apart from 7.30 Report but not Inside Business. Now I don't know how we got to the point where she didn't want to talk to me at all and I was left in a situation where I had to manage a program. I had to put arrangements in place where we had some continuity of executive production in that program and what I had to do was ask Peter Ryan, who was based in Sydney, to spend an extended period of time in Melbourne and when that option wasn't tenable any longer because of his family concerns and his other work commitments, I put in place Steve Letz who was a senior reporter on the Lateline program to come in as a supervising producer for the program. It was the title that he was given and continues to have, supervising producer. I have not confirmed any executive producer in the program, pending some resolution of this matter and it's 12 months have gone by.

**** WALTER STUART HAMILTON XN MR SMITH
PN5250

THE COMMISSIONER: Whose decision is that now if you are on leave without pay?---If I'm on leave without pay it will be the person who's acting in my role, Greg Wildsmith and Greg reports directly to the director of news and current affairs, John Cameron.

PN5251

I see.

PN5252

MR SMITH: That's the current arrangement. I think that goes through till the end of this year?---I'm due back at the end of the year, early next year.

PN5253

Had you at any point at this stage reached a concluded view on the application of clause 19.3; had you made a decision to transfer Ms Barakat?---I believed that I had the power to do so under 19.3.

PN5254

I understand that, but did you actually formally do that?---No. I didn't formally do it in the sense that we didn't complete a process. If I had transferred Neheda Barakat I would have had a vacancy at Inside Business. I would have filled that vacancy by advertising a position and appointing and executive producer. That process was never completed because all this time we've been trying to resolve the matter through conciliation, initially, and now we're in arbitration.

PN5255

THE COMMISSIONER: So the position is still vacant?---It is vacant and I have had, in this case, Steve Letz in a situation where one he's doing the work which previously carried the title of executive producer under another title supervising producer and no guarantee that he will continue, will be elevated into a position of executive producer.

PN5256

No doubt you would be consulted in your absence but is it one that Ms Barakat could go back to tomorrow?---Commissioner, frankly I don't think so. I think a lot of water has gone under the bridge. I think positions have hardened and I think accounts of what happened have gone further from the truth than they were even when we met on the 5th. I've seen the rendering of accounts of what happened in the various incidents surrounding this matter modified over time to a point where there's less accountability, there's less recognition of what I believe as a manager was the responsible course of action by the executive producer.

PN5257

On one view of the evidence to date in any event - and I have not heard the beguiling submissions of either Mr Smith or Mr Ryan yet to the end but on one view of the evidence you might come to the conclusion or I might come to the conclusion, might be open to come to a conclusion that there has been a tragic misunderstanding. Absolutely tragic misunderstanding between the parties. If that were the case, would that change the environment at all?---If it were a matter of misunderstanding, that is my communications have been misunderstood and the responses that I have heard have been misunderstood, that all those people who were either witness or party or at the periphery of all these events equally were misunderstood then yes. So I have only tried to exercise my judgment of what I think happened, why it happened against the background of my experience of working with Neheda for 18 months.

**** WALTER STUART HAMILTON XN MR SMITH
PN5258

Yes. That is why I asked you because you could only act on what you were
told?---What I was told and what I knew because I was at first-hand.

PN5259

And then what you experienced at that meeting?---Yes. I mean, there was not just secondary or second-hand evidence, there was a lot of primary first-hand evidence because I was at the centre of conversations, exchanges of email, observing work practice and so forth.

PN5260

Yes. Yes, but the real issue turned around what you were told about that Friday and then what you concluded from your meeting with
Ms Barakat?---Commissioner, no. I think I've led in evidence other things and maybe I'll just summarise them.

PN5261

Please?---When I received on 26 March an email from Neheda which I referred to earlier where she was alerting me or notifying me of a problem that she had been dealing with through HR with one of her staff, she then goes on to talk about the meeting that she had with Marco Bass and at the end of that email, and I didn't allude to this earlier but you can read it there, for me out of the blue she says "If I have lost confidence in her, please tell me". Now I was dumbfounded when I read this. That's why I called her immediately.

PN5262

Yes?---What in the name of fortune I said to myself is she saying to me? "Tell me if you've lost confidence in me". There must be some, as I said to you before, gap in the facts and her response to the facts. I've done nothing as far as I'm concerned except encourage her and that's on the record.

PN5263

Yes?---So as a result of that email on the 26th if my memory serves me correct, I'm wondering if there's some fundamental anxiety that this EP has and I encourage her to put her head down and do what she can do, put her heart and soul into the program. We have a program review which was all about the specifics of the program, not a personal discussion about the merits of individual staff members. It was a very practical discussion. Her take out from that is "There's something wrong with me and that it must be me". Now I reassure her when she rings me and asks me, "No. It's all to do with the communication process that we have on the telephone and the fact there's a lot of stuff to get through". The next thing I hear is that she's walked out on the program. When I ring her she says "I don't know whether I can carry on". Now this is an accumulation of first-hand evidence of someone who is leading me to conclude that possibly she can't cope in the role she's in.

**** WALTER STUART HAMILTON XN MR SMITH
PN5264

Yes. Let me just give you an example. I heard evidence earlier this morning from Ms Tynan?---From sorry?

PN5265

Ms Tynan?---Yes.

PN5266

That is right, was it not?

PN5267

MR SMITH: Torney.

PN5268

THE COMMISSIONER: Torney, sorry?---Torney. I do know a Ms Tynan. I didn't know she was giving evidence.

PN5269

THE COMMISSIONER: Torney, sorry, and it was her evidence that it was at her suggestion that Ms Barakat went home. Another of your EPs suggested that course of action. Were you aware of that?---No. Did she say that she was not headed home?

PN5270

No, she was not headed home. Her evidence was it was her suggestion. One of your EPs recommended that course of action to her. You were not aware of that, were you?---No. I wasn't aware of that, no. Did she recommend that she contact me?

PN5271

I do not know but the evidence this morning, she recommended it. One of your EPs recommended that course of action?---Well, I think the course of action was in Neheda's hands, not in Kate Torney's hands.

PN5272

Ms Torney said - - - ?---Look, I wouldn't have expected Kate Torney to do what Neheda Barakat did. Therefore for this to be justification for Neheda's behaviour doesn't quite gel. I mean, Neheda left the program. If she had spoken to the other members of the unit, put in train arrangements for the program, contacted me, explained the circumstances, then all of those facts would fit together.

PN5273

No, I understand?---With an explanation which says "No, no, she wasn't feeling well. She took the course of action to manage the situation". I don't think the facts fall together.

PN5274

Ms Torney's evidence was that she was distressed, highly distressed and one of your EPs, her judgement was that she should go home. You did not know that and that is what I meant when I said there are some issues that might give rise to a conclusion that there has been such a tragic misunderstanding here and I was wondering whether that might lead to a capacity to resolve the matter. Anyway, sorry, Mr Smith.

**** WALTER STUART HAMILTON XN MR SMITH
PN5275

MR SMITH: No, that's fine thank you, Commissioner, because that is an important point to clarify. Mr Hamilton you have just indicated that you were not aware that Kate Torney had advised Ms Barakat to go home?---No. I was certainly not aware that Kate Torney was the instigator of the action of Neheda Barakat to go home.

PN5276

But you did follow up with other members of the program Inside Business as to what occurred as well? You mentioned earlier that you spoke to Jeff Hutchison and Alan Kohler?---Yes. I spoke to Jeff Hutchison and Alan Kohler who were the two people who I was able to contact before I met Neheda. The only two people I was able to contact who were actually in the program review meeting. Kate Torney wasn't there of course.

PN5277

Arising from that and just following on from what the Commissioner has indicated, in light of that material that you had before you were you confident that you could reconcile Ms Barakat back into the role of Inside Business as
EP?---Maybe if I try to summarise for me what were the key points going through my mind.

PN5278

THE COMMISSIONER: No. No. I accept your evidence that on the material that you had you took that view?---My answer is that I didn't feel that it would be safe for her, for the staff or for the program, for her to go back into that role. That she was better off and we were better off, that is the program and the division, if another arrangement was put in place.

PN5279

You see, the task that faces me is reconciling the evidence of what people said in that witness box was their role and what they have done and then examining your decision making process and that is why I put it to you I can understand the information that you had, led to a certain environment at that meeting. The information in Ms Barakat's mind led to a certain environment. A the end of the day I have to try and rationalise this evidence but that is why I put it, it is at least arguable that it is open that there was a tragic misunderstanding. Tragic in the consequences that this case has gone on for 12 months?---I don't see there's a question. I understand the point you're making but I suppose just to take up the last matter you mentioned, it's been going on for 12 months and it is I think very sad that it's been going on for 12 months.

PN5280

Yes?---I think it's very sad when any matter has to go before arbitration like this.

**** WALTER STUART HAMILTON XN MR SMITH
PN5281

Yes. I can assure you we have tried very hard to resolve it?---I'm aware of that too and what I would say is that I have made a lot of effort to continue dialogue with Neheda Barakat.

PN5282

Yes, thank you?---I have made a lot of effort to do that and I've done that in good faith.

PN5283

MR SMITH: Arising from that then, had you been aware - and this is a bit speculative and it's an area where advocates often fear to tread - would that have changed - - -

PN5284

THE COMMISSIONER: And rightly so, he might add.

PN5285

MR SMITH: I might add. Would that have changed your perception on Monday 5 April, had you known that Kate Torney had advised Neheda to go home?---It would be one piece of information which I would factor in with a large number of pieces of information, second-hand and first-hand that I was trying to balance up in my mind.

PN5286

Sure, and would it have tipped the scales for you?---No. It would not have tipped the scales for me because for Neheda to have left the program with not making provision for the program. When I asked her - I mean, the seminal discussion about this was the one I had with Neheda seeking an explanation for her behaviour. Neheda didn't say to me "I didn't know what to do when Alan said what he said and Kate Torney advised me to go home". She didn't say that. What she said to me and her only response and I repeated that I wasn't satisfied with her first answer so I invited her to elaborate. Her only response was "I did the research". That is I had done the research for the interviews and if you look at the correspondence from Neheda later on about this, as I say, seminal matter, her responsibility to carry, safely of that program to air "I did the research". Then she says elsewhere "All Alan had to do was turn up and ask questions". That to me is an extraordinarily grotesque distortion of the responsibilities on Alan and what she should be doing, to see that program - the whole process of conducting interviews - we're not talking about 15 second sound bytes for television news bulletins. We are talking about sit-down interviews of extended duration, multiple camera shoots, has to be very nice looking television, all of the stuff that Neheda knows about, can do and has talked about her own ability and skills of doing and I've acknowledged them. She reduces that now, accounting for her behaviour, to all Alan has to do is turn up and ask the questions. I've got to take that into account, Commissioner.

**** WALTER STUART HAMILTON XN MR SMITH
PN5287

THE COMMISSIONER: Yes. Lest it be misunderstood, the example that I gave is but one of a number of areas of the evidence that I have got to turn my mind to that do not fall comfortably in a single story if I can put it that way?---I understand the point you're making but I guess I'm trying to explain what was in my mind.

PN5288

Sure, and I appreciate that.

PN5289

MR SMITH: Again - sorry, Commissioner.

PN5290

THE COMMISSIONER: No, I have finished thank you.

PN5291

MR SMITH: You say that you have had conversations with Alan Kohler and Jeff Hutchison regarding their confidence in Ms Barakat; how much store do you put in their view when you're reaching your decision about what to do with this matter?---I had a conversation, as I mentioned, when I visited the office on the
5th before I met Neheda. I had a conversation with Jeff Hutchison and subsequent to that I've had no discussion with Jeff about any substantive matters related to this. However, I have had conversations with Alan Kohler on the telephone and in person over the last period of time. Alan wants to know what's going to happen, where are we? For the benefit of the Commission Alan doesn't just work for the ABC.

PN5292

THE COMMISSIONER: Yes, I know?---He has a lot of irons in the fire. He'd like a simpler life.

PN5293

Yes?---Wouldn't we all. The point about Alan's role in Inside Business and Alan's view of where we're going, I think, is very important.

PN5294

Yes?---I explained earlier that the program itself was initiated by Alan as a proposal to us. We saw it as a vehicle for Alan in a very substantial way.

PN5295

Yes?---And Alan made it clear to me that he had had a very good relationship with Neheda but he didn't feel he could go on having to deal with the kinds of issues that had come up on 1 April.

PN5296

Can I give you two other pieces of information then?---Yes.

PN5297

My recollection of Mr Kohler's evidence was firstly I did not recall him - unless I misunderstood - recalling that he heard Ms Barakat say she was going to resign and he was Mr Smith's witness and secondly I do recall him saying that he thought the position of her returning as executive producer to Inside Business was still available following your meeting. That was his belief?---Well, Alan Kohler had a conversation with me - - -

**** WALTER STUART HAMILTON XN MR SMITH
PN5298

I am telling you the evidence he gave me?---Yes. Okay. Well, I was asked by
Mr Smith to relate - - -

PN5299

Yes, I know?---- - - what I had said.

PN5300

I know?---To Alan and what Alan said to me.

PN5301

MR SMITH: I think I asked further questions, sorry, of Mr Kohler that went beyond that, Commissioner, with respect.

PN5302

THE COMMISSIONER: It is the evidence he gave.

PN5303

MR SMITH: I think I actually asked him whether he felt comfortable with the concept of Ms Barakat returning to the position.

PN5304

THE COMMISSIONER: That is another matter. He may have had his misgivings but the evidence he gave was that he thought it was still available for her to come back after the meeting?---Obviously, Commissioner, if Mr Kohler has given such evidence, he has given such evidence. I have no doubt in my mind as a result of several conversations with Alan Kohler that, one, he did not want Neheda to return to the program, two, his constant approaches to me - well, I wouldn't say constant - his several approaches to me to ask how things were going were pointed in the direction of "Let's confirm the matter. I want a less complicated life. I'm very happy with the current arrangements. I don't want to return to the old arrangements". These were unequivocal, unambiguous so I haven't seen a transcript. I mean, I accept - - -

PN5305

No, no. I understand that and that's appropriate?---That is my impression based on several conversations with him.

PN5306

Yes, thank you?---And I took into account his observations in forming my view as to where we were going because it's a small unit, as I said before, and he's a vital member of it.

PN5307

Yes, thank you.

PN5308

MR SMITH: Mr Hamilton, we have now moved through to May where I understand you became aware that Ms Barakat was intending to lodge a grievance; is that correct?---Around the middle of May I believe through correspondence with Kate Marshall or Hanan Gamali I became aware that she, Neheda, was going to lodge a grievance against me. I didn't know what the nature of that grievance would be and I think I received it a month later in the middle of June or something like that.

**** WALTER STUART HAMILTON XN MR SMITH
PN5309

What was your reaction to the contents of that grievance?---I suppose several reactions. One was it struck me as curious that when I'd been heading in the direction of reconciliation, that is, meeting with her, discussing the issues, talking about alternatives, she suddenly was heading in an opposite direction. Second point, she was putting grievances against me months after the alleged events. To me, if you have a grievance with somebody you know you have a grievance and you communicate it. I was taken by the fact that it was some months after the event. When I looked at the substance of the grievance against me I felt it was misrepresentation, fundamentally, of the tone and the content of the meeting I had had with her on the 5th. If my memory serves me correctly about the grievance, and it's some time ago since I've read it in some detail, I think she raises or certainly implies that I had somehow contrived through the program review, putting on an unscheduled program review, that I had dishonest motives or whatever in doing so; that somehow I was at that point, a week before or so, setting out on a course. It was simply totally contrary to the fact. Anyway, I've written a response to the grievance that she lodged against me and the detail of my response are contained there. The other point is that subsequent to that and, you know, we're now nearly 12 months beyond that point, I've become aware of some of the points of grievance that she had with others, Marco Bass and Graham Nicholas and I found it interesting and to me important that, for example, in the case of grievances against Marco Bass she claimed that he had in her words continuously called her into his office and in - I'm not using her words now - but in a manner that was threatening, interfered with her conducting her job as an EP. That's what she claimed as her grievance against Marco and she cited what she called continuous actions of calling into her office[sic], several episodes. She gives the dates of those episodes. Now, my reading of it was that at least - I think there might be five or six episodes in the space of 18 months - my reading of it was that at least two of those meetings with Marco had been initiated by Neheda. When I looked at the detail of what she said was inappropriate or aggrieving behaviour by Marco she said that, one, he had inappropriately given her advice regarding her salary negotiations with me. As I've said to the Commission earlier I was in negotiations with Neheda on the basis that I believed she was trying to renege on an agreement. I was seriously thinking at that time that maybe I couldn't persist with my intention for her to be the EP of the program at that start-up period and I said to Marco "What do I do here?" If Marco spoke and gave her advice, taking what was on offer that is, accepting what she had already accepted would be good for her career. My reading of it was that that was good advice and it was not inappropriate for someone who knew her, had worked with her in another program unit, to give her such advice. She didn't say that he had done so in a hectoring or threatening way. She objected to the fact that he had advised her, that somehow this was inappropriate. She also cites an aggrievance that Marco had called her in to talk about entertainment expenses which had been claimed prior to their being approved. This was in 2003 from memory. Now, during that period news and current affairs was going through a severe budget crisis. The director of news and current affairs had advised all staff at that time of various measures to rein in expenditure and explicitly, staff were told that they needed to get approval of entertainment. Again on the face of it, for Marco to remind Neheda of that to me seemed like an appropriate thing for him to do.

**** WALTER STUART HAMILTON XN MR SMITH
PN5310

THE COMMISSIONER: Are you confident that that policy was in place prior to Marco Bass doing that?---I am confident that it was in place.

PN5311

He was not?---He wasn't confident that it was in place?

PN5312

No?---Well I'm confident it was in place.

PN5313

He was not and he was the one who actioned the statement?---Mm.

PN5314

He did not know?---Well, that was my understanding of what the arrangements were. People did not go out and spend money on entertainment unless they had said it was for approval. I had not had any discussion with her about it.

PN5315

Thank you.

PN5316

MR SMITH: Just on that point, Mr Hamilton, this policy of seeking prior approval; is this a long-standing requirement?---This as been reiterated a number of times in the 4 or so years that I have been in the news and current affairs executive.

PN5317

So it's been reiterated by which you mean there have been reminders from time to time?---That is correct. That is correct. But my memory of this particular period of time in 2003 was that there was a reminder to staff specifically put out during that period that they needed prior approval for entertainment expenses.

PN5318

I will leave it at that. At about this time or sometime in August 2004 were you aware or you would have been aware that Ms Barakat was referred to Health Services Australia regarding her fitness to resume duty?---Yes.

PN5319

You are aware of the recommendation or the advice that came back from the Health Services Australia at that time regarding limitations on where she could be placed?---There have been a number of reports on these matters. My recollection of that particular report was that she was fit to return to work and to go to The 7.30 Report, that there was no impediment to her going to The 7.30 Report.

PN5320

When you say no impediment, the - I'll just make sure I get the right report. Were you aware there was some limitation placed on any involvement with Marco Bass?---As I said before, quite frankly there have been a number of these reports which have indicated different advice. Some have - I think one referred to me. It was desirable that the relationship or the line of reporting between me would be managed carefully. Certainly there was another advice in relation to direct supervision by Marco Bass not being desirable. But the issue in relation to Marco is that as the editor for news and current affairs in Victoria his responsibilities are inter-divisional and resource responsibilities, largely maintaining a relationship between our divisions, looking after resources and allocating the resources within news and current affairs in Victoria. Those are the kinds of things that he deals with. In 7.30 Report, 7.30 Report has a dedicated bureau chief in Melbourne and an EP in Sydney. The line of reporting for a producer on 7.30 Report is through the bureau chief in Melbourne, Shane Castleman, and up to the EP in Sydney and 7.30 Report is a 4 day a week program, Monday through Thursday; and on Friday Stateline occupies the 7.30 slot. There is an understanding that if Stateline needs additional resources to make their program they may call on 7.30 Report. They would do so through the bureau chief of 7.30 Report in Melbourne. That is, if they needed a reporter to do a same-day interview or component or so forth, they would ask the bureau chief of 7.30 Report in Melbourne to try and help out. The case of Neheda, my intention was that Neheda would work with the business and finance editor for 7.30 Report based in Melbourne. The business and finance editor to my memory has either never, or so rarely as to be unmemorable, provided content to Stateline. That is a specialist position. The 7.30 Report, that is essentially they are dedicated for the national program, not for the local programs. So my understanding of the appropriateness of having Neheda Barakat operating and working in a role in The 7.30 Report was that if there was an impediment of having her line-managed by Marco Bass, that impediment did not exist in this arrangement.

**** WALTER STUART HAMILTON XN MR SMITH
PN5321

So if I can say - - - ?---Sorry for the long answer.

PN5322

You were satisfied that in placing Ms Barakat in The 7.30 Report that you have met your obligations to provide a safe and health - - -

PN5323

MR RYAN: Commissioner, can I just raise a point? The ABC itself does not accept that - - -

PN5324

THE COMMISSIONER: Are you objecting to the question?

PN5325

MR RYAN: I am objecting to the question because it defies the ABCs view. The ABC has, through the letter tendered during these proceedings seeking to show cause why she should not be terminated, said that she cannot - the Marco Bass was the issue that would not allow her to work anywhere in the ABC. What Mr Smith is trying to put to the witness is something the ABC does not believe itself. So I think it is most inappropriate.

PN5326

THE COMMISSIONER: I see.

PN5327

MR SMITH: With respect, Mr Ryan is totally wrong. I'm referring to the previous medical examination by Dr Mutton which indicated that the impediment was the working on Friday on Stateline if that was reporting to Marco Bass. That is what I am putting to Mr Ryan.

PN5328

THE COMMISSIONER: I see.

PN5329

MR SMITH: These are very different when you actually look at - the Alliance appear to be trying to merge these two medical reports. They are actually quite different when you actually look at them.

PN5330

THE COMMISSIONER: Yes. Ask the question.

PN5331

MR SMITH: I haven't yet got to the second one.

PN5332

THE COMMISSIONER: Yes. No, I understand.

PN5333

MR SMITH: Well the question is, Mr Hamilton, were you satisfied in light of that medical advice and the arrangements that you had been putting in place regarding Ms Barakat moving to The 7.30 Report taking into account the Stateline issues that you had fulfilled your obligations to provide a healthy and safe workplace for Ms Barakat?---Yes. As I said, she had a specialist role which was a dedicated 7.30 role. The fact that Stateline may request 7.30 Report for assistance on the Friday, one, any request would be directed through the bureau chief, Shane Castleman, two, the kind of role that she would have supporting the business and finance reporter for 7.30 Report would very improbably have any call in Stateline.

**** WALTER STUART HAMILTON XN MR SMITH
PN5334

Thank you. Were you aware then that in following a matter for the Commission in January, I think, that Ms Barakat was again referred to the Health Services Australia for an assessment for fitness to resume duty, that a report prepared by
Dr Peter Smith, that - - -

PN5335

THE COMMISSIONER: No relation to either of us, I can assure you.

PN5336

MR SMITH: We have checked this very carefully?---Look, I have read these reports of Dr Smith but not necessarily word for word they're fresh in my mind as I sit here.

PN5337

I will just read out to you the relevant parts of this report, and this was included, I think, in C1, Commissioner.

PN5338

THE COMMISSIONER: Thank you.

PN5339

MR SMITH: It's at page 6 of that particular report.

PN5340

THE COMMISSIONER: Yes, you can go on.

PN5341

MR SMITH: Okay. It starts at dot point two which says:

PN5342

With regard to her work capacities it is my opinion that Ms Barakat has an incomplete occupational incapacity at the present time.

PN5343

I must say I have some difficulty in understanding exactly what that means:

PN5344

It is improbable that she would be able to function as described in the attached job description on The 7.30 Report reporting to Mr Shane Castleman although it is noted that Mr Castleman has not previously been involved in Ms Barakat's grievances or any other disputes it is improbable would be able to work as proposed in The 7.30 Report on psychological grounds. It is likely that this would lead to an exacerbation of her mood disturbance and create considerable anxiety. Her state of aggrievance most likely precludes her being able to adjust and adapt to this proposed deployment.

PN5345

It goes on to say then at dot point three:

PN5346

It is improbable that Ms Barakat would be able to undertake this work either in a full time or part-time capacity. Furthermore it is improbable that any workplace modifications et cetera would assist Ms Barakat returning to this position either now or in the foreseeable future.

**** WALTER STUART HAMILTON XN MR SMITH
PN5347

Then it goes on - - -?---Sorry. Can I just clarify something there? Is that a reference to returning to this position, this position being the 7.30 Report position?

PN5348

That is what I understand, yes. He was responding to a question regarding The 7.30 Report.

PN5349

THE COMMISSIONER: We can probably give you the letter.

PN5350

MR SMITH: It might be easier, Commissioner.

PN5351

THE COMMISSIONER: It might be easier.

PN5352

MR SMITH: It's just that I've only got the one handy that I can see.

PN5353

THE COMMISSIONER: Let us just see if I can turn it up.

PN5354

MR SMITH: It's behind the blue chronology I think.

PN5355

THE COMMISSIONER: No.

PN5356

MR SMITH: I will see if we can find a file copy, Commissioner.

PN5357

THE COMMISSIONER: Yes, thank you.

PN5358

MR RYAN: I have definitely seen it

PN5359

MR SMITH: It's certainly in my copy of C1 and I think in yours too.

PN5360

THE COMMISSIONER: I have it now. I have it. You might not have seen that, given your absence, Mr Hamilton?---No this has been - sorry.

PN5361

Forwarded to you, has it?---I have been provided with this since I - - -

PN5362

MR SMITH: Your voice will sound better on the transcript than it does live, I think. I've got to get these questions in before he passes out?---Sorry, can you ask the question?

**** WALTER STUART HAMILTON XN MR SMITH
PN5363

Yes. What I am getting to here is the limitations that are now imposed by
Dr Smith's examination and assessment of Ms Barakat. I have just read out to you points 2 and 3 and I was just about to refer you to point 5 which says that:

PN5364

With regard to the question of any additional restrictions and limitations it is important that Ms Barakat not be working with, near or around Mr Marco Bass whom she has identified as her injurer.

PN5365

It then goes on to say:

PN5366

On the other hand it is probable from a psychiatric perspective that she could be deployed to some area of work which is mutually agreeable to both
Ms Barakat and her employer. Ideally this would be subject to negotiation and discussion.

PN5367

It talks about mediation. Now, does that change your position about where you could place Ms Barakat safely in a healthy environment?---If this advice sets the parameters under which we can act, I can act, clearly she can't be placed in the Melbourne news and current affairs operation because that would seem to me to be placing her with, near or around Marco Bass. He is the editor of Victoria, his office is located in conjunction with the rest of the newsroom. The Inside Business office as a matter of fact is about the most removed office from the proximity to Marco Bass so if she can't work physically in the least proximate location to Marco Bass then this precludes - it has the constraint of putting her on 7.30 Report for example and the other programs that we have in Melbourne are Insiders, the news and current affairs programming for ABC Asia Pacific and of course the radio and television news operations and current affairs radio operations that we have in Melbourne. All of those, on this advice, would be precluded.

PN5368

Did you say, sorry, Inside Business as well?---Yes. Well on the basis that Inside Business is on the same floor that Marco Bass's responsibilities encompass the management of the resources of the news and current affairs including Inside Business in Victoria, there is no way that you could operate with no contact with Marco Bass and Neheda in Victoria.

PN5369

Are there any other opportunities elsewhere in your knowledge that would be available to Ms Barakat?---I have explored with other program areas in news and current affairs, other possibilities. For example, I spoke to the executive producer of the Australian Story program. Australian Story is based in Brisbane but it has staff gathering stories and making stories in other states including Melbourne and I talked to the EP about the possibility of Neheda moving into that program. The EP of that program was not open to that idea. There wasn't any particular vacancy and arrangement until a vacancy occurred but we didn't reach an agreement, that is myself and the EP about that course of action.

**** WALTER STUART HAMILTON XN MR SMITH
PN5370

What about with other divisions?---With other divisions I haven't made any representations to other divisions at the ABC since up until now, until this advice presented itself. I believed that we could put arrangements in place in which Neheda could work within 7.30 Report without having the problems that had been identified by Corp Psych Australia is it? I'm sorry.

PN5371

The Employee Assistance program provided, yes, Corp Psych?---The initial assessment that I talked about earlier. But I felt that this more prescriptive advice came I'd been working on the basis that the arrangements of having Neheda at 7.30 Report could be organised within the earlier constraints, the more generous constraints if you like that had been identified. But this is more prescriptive and you've asked me what the practical consequences of it and I'm trying to explain.

PN5372

MR SMITH: Just finally, Mr Hamilton, the Health Services Australia assessment by Dr Smith goes on to helpfully suggest that:

PN5373

It's advisable that both Ms Barakat and her employer approach her future employment with mediation and conciliation rather than adopting an adversarial approach.

PN5374

Do you hold out hope that there is capacity for mediation which may give rise to Ms Barakat being able to return to the workplace?---Yes.

PN5375

You do?---I'm always holding out hope. I mean, Neheda Barakat has got skills which can certainly be placed within the ABC. I came to the conclusion that she had deficiencies which made it unsuitable for her to continue in a particular role. I sought for her to take another role. In this process we have accumulated other, more adversarial or more rigid constraints on that process but if you ask me on that basis, I hope there is still a possibility to do something.

PN5376

That concludes my examination-in-chief, Commissioner.

PN5377

THE COMMISSIONER: Thank you. No, Mr Ryan.

PN5378

MR RYAN: I wasn't going to suggest that to the Commission.

PN5379

THE COMMISSIONER: Mr Hamilton is going to have overnight to recover his voice before you begin your cross-examination. We will resume at 10 o'clock tomorrow morning, and I would like to see the advocates in chambers briefly.

PN5380

MS CONNOR: Commissioner - sorry, Commissioner.

PN5381

THE COMMISSIONER: Yes?

PN5382

MR SMITH: Before we do that, I am just wondering, there was reference to the memo from the director concerning the entertainment being done in advance instead of the traditional in-arrears arrangement and I'm just wondering whether or not we could have a look at that memo from the ABC?

PN5383

THE COMMISSIONER: Well, if you have called for it, Mr Smith can have a look and see if he can discover it.

PN5384

MR SMITH: I'll do my best.

PN5385

MS CONNOR: I mean, it just seems to me that some of the evidence is now actually turning around this. That's whether or not she was actually ignoring advice or - - -

PN5386

MR SMITH: I'm happy to look for it. I'm happy to look for it.

PN5387

THE COMMISSIONER: Let us not make submissions about its relevance or weight at this stage.

PN5388

MS CONNOR: Thank you, Commissioner. Also I wondered whether it would be possible to actually get a map of the Melbourne ABC area and all of the different parts that are within it because there are a range of divisions, as I understand it, floors and so on and so forth.

PN5389

THE COMMISSIONER: There would be floor plans, I am sure.

PN5390

MR SMITH: You want the entire floor plans for the Southbank
building?

PN5391

MS CONNOR: I don't want it office by office, Mr Smith, but I would like to see what actually is based in Melbourne. Yes. What else is based in Melbourne besides the news and current affairs newsroom? For example, Radio Australia and so on and so forth.

PN5392

MR SMITH: Okay. I think so, but I'm not sure if I'll be able to cobble that all together by tomorrow morning.

PN5393

THE COMMISSIONER: No, no. I understand.

PN5394

MS CONNOR: Well, perhaps just a list of the other divisions that are operating out of Melbourne.

PN5395

THE COMMISSIONER: You raise that with Mr Smith after we - - -

PN5396

MS CONNOR: Thank you, Commissioner.

PN5397

THE COMMISSIONER: It is a matter for him. We will adjourn until 10 o'clock tomorrow.

<ADJOURNED UNTIL THURSDAY, 7 APRIL 2005 [3.55PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

KATE MARY TORNEY, SWORN PN4927
EXAMINATION-IN-CHIEF BY MR SMITH PN4927
CROSS-EXAMINATION BY MS CONNOR PN4958
THE WITNESS WITHDREW PN4988
WALTER STUART HAMILTON, SWORN PN4993
EXAMINATION-IN-CHIEF BY MR SMITH PN4993