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.

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. The former union officials could face fines over the breaches. A fourth person was also implicated but will not be referred to the court. Now this is after denying 2 law enforcement agencies from access to their records in regard to Fraud against HSU and as they are now trying to keep the matter away from the CDPP which would be because of their disclosure policy Disclosure to CDPP by investigation agencies .

The 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 this web-site. The main purpose of the Prosecution Policy is to promote consistency in the making of the various decisions which arise in the institution and conduct of prosecutions. The Prosecution Policy outlines the relevant factors and considerations which are taken into account when a prosecutor is exercising the discretions relevant to his or her role and functions. The Policy also serves to inform the public and practitioners of the principles which guide the decisions made by the CDPP. The decision to institute (or continue) criminal proceedings is an important one, and careful consideration is given to each matter. The Prosecution Policy sets out the relevant guidelines for determining whether it is appropriate to institute a prosecution (or continue that prosecution). All State and Territory Directors of Public Prosecutions have a prosecution policy which takes a consistent approach to the decision to prosecute. 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. 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 CDPP is an independent prosecuting agency established under the DPP Act. There is a separation of the role of prosecutor and investigator. The CDPP is within the portfolio of the Commonwealth Attorney-General, but the Office operates independently of the Attorney-General and of the political process.

The Attorney-General, as First Law Officer, is responsible for the Commonwealth criminal justice system and remains accountable to Parliament for decisions made in the prosecution process, notwithstanding that those decisions are now in fact made by the Director and lawyers of the CDPP. Under section 8 of the DPP Act, the Attorney-General has power to issue guidelines and directions to the CDPP. However, that can only be done after there has been consultation between the Attorney-General and the Director.

Fair Work Australia has no right to instruct the Attorney Generals Department as to whether a matter should be prosecuted.   The AGS decide 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.   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.

Kevin for the Editors