I Was Wrong: Incompetence, Or Something More Sinister?

I wish to apologise to all readers of The Red And The Blue; there appeared in this column an article yesterday concerning the Fair Work Australia report into the Health Services Union which contained a number of errors of fact. For this, I apologise unreservedly.

The problem, simply stated, is that after my article was posted late yesterday morning, it was revealed that the Commonwealth Director of Public Prosecutions, Chris Craigie SC, said the report was useless to him insofar as bringing criminal charges against any of the individuals named was concerned.

It was also revealed that as a consequence, the said report rendered yesterday’s column incorrect and irrelevant, and I’m very sorry.

Seriously — dry old jokes aside — this isn’t a laughing matter, and it goes to the heart of exactly how the business of government under the ALP is conducted.

And it raises a fundamental question: has Fair Work Australia exhibited incompetence, or are there other factors at work here?

I should have known better than to believe Fair Work Australia had delivered a report  of any meaningful or useful substance, but there you go; in the meantime, the fiasco of the Health Services Union, the inquiry into it, and putative action against any of the individuals concerned will likely now drag on.

After more than three years, the apparent waste of millions of dollars in resources, and increasingly relevant questions of a cover-up, Fair Work Australia has produced an 1180-page report that, as things stand, is an expensive white elephant.

The CDPP has stated that the report does not constitute a brief of evidence that could be actioned for the purposes of criminal prosecution; indeed — given FWA now appears to have dumped the entire file on Craigie as a work in progress — he pointedly observed yesterday afternoon that the office of the Director of Public Prosecutions is not an “investigating agency.”

Craigie suggested referring the material to Police for further investigation.

The federal Opposition suggested Fair Work Australia engage a firm of solicitors to prepare a brief of evidence for the CDPP.

Fair Work Australia, in turn, has claimed legislative and other legal considerations prevent it from the co-operation with Police inquiries; thus far, it has refused requests for information to assist separate investigations into the HSU and allegations involving Craig Thomson and others undertaken by Police in NSW and Victoria.

Has Fair Work Australia acted incompetently?

Its general manager, Bernadette O’Neill, remains adamant that she has operated in full accordance with the requirements of the Fair Work Act, guided by specific legal advice.

Whether or not this is the case remains to be seen, but if O’Neill is correct, then questions need to be asked about the Labor Party’s fitness to govern if marquee legislation like the Fair Work Act is so dysfunctional as to allow a quagmire such as this increasingly seems to be to develop.

After all, if Ms O’Neill’s assertions are correct, then legislation enacted by the current government is directly to blame for the situation.

The much-trumpeted replacement of the Howard government’s WorkChoices legislation was a showcase item for the ALP; and the minister responsible at the time for the introduction of the Fair Work Australia laws was none other than — you guessed it — one Julia Gillard.

If this set of laws is so dysfunctional, then one wonders: what else is lying in wait, undiscovered, in the hundreds of thousands of other pages of legislation this government has passed?

What a mess.

And if this situation is not the result of incompetence — at whatever level — then the alternative is rather more sinister.

That alternative brings sharply into focus accusations of bias, interference and cover-up that have been levelled at the Fair Work Australia probe; at the very minimum, it raises the question of what the hell three and a bit years have been wasted doing if the end result is a useless pile of paper.

Whichever way you cut it (incompetence or corrupt abrogation of duty) this sorry mess makes demands by Tony Abbott and his colleagues for a royal commission into Fair Work Australia — until now correctly dismissed as opportunistic hyperbole, including by this column — seem reasonable, even necessary.

It seems clear to anyone who has followed this matter that at the simplest of levels, a series of wrongs have been perpetrated at the HSU during the past ten years; it is what, and by whom, that must be established beyond doubt, and further action pursued as mandated.

Craig Thomson is not the only HSU figure under question, but his status as the holder of a marginal seat in a minority government means he is most illuminated in the public spotlight — which simply draws more public scrutiny the longer this goes unresolved.

Clearly, this matter cannot simply be abandoned; to do so would be a travesty of justice, to say nothing of the weight it would further lend the notion of a cover-up.

One way or another, the series of investigations into the HSU matters must be resolved with great urgency and expedition.

Perhaps one way to proceed would be for Gillard to rush enabling legislation through the Parliament to clear the hurdles in the Fair Work Act — if any, in fact, exist — which O’Neill claims prevent FWA from co-operating with Police investigations.

That way, NSW and Victorian Police (and, presumably, the Federal Police) could conclude their outstanding inquiries, with the preparation of briefs of evidence following should there be grounds to charge individuals with criminal offences.

It would give Gillard the opportunity to demonstrate her willingness to resolve these matters with transparency and probity; it would also give Tony Abbott the opportunity to demonstrate he is prepared to do anything he has to in order to facilitate the resolution of these matters through the proper mechanisms.

And it would shut down the sort of drivel we heard yesterday from the likes of Workplace Relations minister Bill Shorten, whose contribution to the discussion was to blame Tony Abbott on the basis of legislation enacted when the latter was Workplace Relations minister under John Howard ten years ago.

Indeed, Shorten’s utterances merely serve to underline the botch Labor made of its overhaul of industrial laws in 2008-09.

Either way, the indications that Abbott could use this saga as the pretext for a no-confidence motion in the Gillard government are clear; and unless the ALP acts quickly to fix what has become a festering sore, then at some point Messrs Katter, Windsor, Wilkie and Crook may well offer a sympathetic ear when he visits them to present his case.