Fair Work Australia (FWA) has decided not to refer the actions of three former officials from the Victorian branch of the Health Services Union (HSU) to the Director of Public Prosecutions.

FWA general manager Bernadette O’Neill says an investigation into the union has found 32 breaches of the Act or union rules.  Last month she said the issues related to the keeping and lodging of required financial records.  The former union officials could face fines over the breaches.

Ms O’Neill says she has instructed the Government Solicitor to ask the Federal Court to impose civil penalties in relation to 28 of the cases, but says they should not be sent to the DPP.

A fourth person was also implicated but will not be referred to the court.  They are claiming this was separate to the investigation of Craig Thomson.

Bernadette admitted to a Senate estimates Committee, there had been even more contact between the Government (including Bill Shorten’s office) and Fair Work Australia in relation to the Thomson investigation than we already knew about.  But, no, she said, the investigation into Craig Thomson was still not completed. No, she said, she would not be releasing the conclusions of another investigation into the Health Services Union because she feared someone might be defamed.

This is a interesting comment, who are they scared of this much and why is it the FWA and Gillard Government are happy with this occurring ?

And, no, she said, Fair Work Australia would not be releasing a vital December 2009 memorandum from former Industrial Relations Commission Registrar Doug Williams to the new Fair Work Australia incoming General Manager Tim Lee.  This memo from Williams, who had investigated Thomson for 8 months and was leaving his job, to Lee, who was taking Williams’ place, reportedly concluded that there was clear evidence of serious, and probably criminal, wrongdoing by Thomson.

It detailed exactly what Williams believed should be investigated and why !

The suggestion, of course, is that Lee, another former union official and Victorian ALP staffer, then instituted a “go slow” on that investigation to assist Labor.

Remember this is after denying three separate law enforcement agencies from access to their records in regard to Fraud against HSU and Electoral Commission offences.  Now they are trying to keep the matter away from the CDPP, which would be because of their disclosure policy meaning disclosure of prosecution evidence. And the issue of the AGS being the Investigation agency in this matter rather than FWA whose investigations staff appears not to have had the experience or background to run an Investigation in this matter.

This Statement on Prosecution Disclosure relates to information and material held by the CDPP, investigation agencies and third parties.  In order for the prosecution to meet its disclosure obligations, the CDPP depends on investigation agencies informing it of information and material covered by this Statement.

The Prosecution Policy of the Commonwealth is a public document which sets out guidelines for the making of decisions in the prosecution process. It applies to all Commonwealth prosecutions whether or not conducted by the Commonwealth Director of Public Prosecutions. The Prosecution Policy has been tabled in Parliament, and is publicly available. A copy is available on their web-site.

Under the Prosecution Policy there is a two-stage test that must be satisfied:

  • there must be sufficient evidence to prosecute the case; and
  • it must be evident from the facts of the case, and all the surrounding circumstances, that the prosecution would be in the public interest.

Having been satisfied that there is sufficient evidence to justify the initiation or continuation of a prosecution, the prosecutor must then consider whether the public interest requires a prosecution to be pursued. In determining whether this is the case, the prosecutor will consider all of the provable facts and all of the surrounding circumstances. The factors to be considered will vary from case to case, but may include:

  • Whether the offence is serious or trivial;
  • Any mitigating or aggravating circumstances;
  • The age, intelligence, health or any special infirmity of the alleged offender, any witness or victim;
  • The alleged offender’s antecedents;
  • The staleness of the offence;
  • The availability and efficacy of any alternatives to prosecution;
  • The attitude of the victim;
  • The likely outcome in the event of a finding of guilt; and
  • The need for deterrence.

These are not the only factors, and other relevant factors are contained in the Prosecution Policy.

My biggest concern lies in the delay in this matter as it is ‘the staleness of the offence’ that may be on issue and end up getting Thomson out of this offence, although he may well be guilty of the offence of Fraud.

Generally, the more serious the alleged offence is, the more likely it will be that the public interest will require that a prosecution be pursued, Fraud of course is a indictable offence..

The decision to prosecute must be made impartially, and must not be influenced by any inappropriate reference to race, religion, sex, national origin or political association. The decision to prosecute must not be influenced by any political advantage or disadvantage to the Government.

FWA general manager Bernadette O’Neill, who initially refused Victoria Police’s request for help, issued a statement on Sunday saying that since FWA’s investigation was almost complete, “further advice has been sought from the Australian government solicitor as to whether it would now be appropriate to assist the police”. Mr Wood’s legal advice has been included as part of that request, Ms O’Neill said.  The reason for all of this is now apparent The Australian Government Solicitor appears to have been training the FWA Investigator while doing most of the Investigation management themselves.   see FOI document 22A below.  

Fair Work Australia has no right to instruct the Australian Government Solicitor (AGS), especially as this letter was produced it would seem by the AGS, as to whether a matter should be prosecuted.   The AGS decides on whether a prima facie case exists and whether it is able to be prosecuted.  It would seem Ms O’Neill has not been given her job on the basis of her experience as a Investigator, or she would have realised the mistakes she has been making and unless she is able to show some legislation, she may well be answering to a case of Obstructing police in the performance of their duties, or of assisting the aid or abet of a person that has committed the act of Fraud.  In this case however, the AGS played the part of the FWA Investigator every step in the process.

The evidence is shown below or in http://www.fwa.gov.au/index.cfm?pagename=legalslog along with a series of interesting Documents relating to investigations, although a majority have been heavy blacked out, which would be unusual to have such a large number of docs, and all of them pertaining to an investigation in which disclosure would serve to identify some one.

Hopefully justice will in facts be served here and the MP is charged, and the GM of FWA is charged with failure to provide assistance to an officer of the law and obstructing him in his investigation of a offence.

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