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Education, Employment and Workplace Relations Legislation Committee
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO
Fair Work Australia
- Committee Name
Education, Employment and Workplace Relations Legislation Committee
Collins, Sen Jacinta
Abetz, Sen Eric
Ronaldson, Sen Michael
Back, Sen Chris
Thistlethwaite, Sen Matt
Fisher, Sen Mary Jo
Collins, Sen Jacinta
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Education, Employment and Workplace Relations Legislation Committee
(Senate-Wednesday, 15 February 2012)
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO
Fair Work Australia
Senator Jacinta Collins
Fair Work Ombudsman
Senator Jacinta Collins
Office of the Australian Building and Construction Commissioner
Senator Jacinta Collins
Senator Jacinta Collins
Safe Work Australia
Senator JACINTA COLLINS
- Fair Work Australia
- EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO
Content WindowEducation, Employment and Workplace Relations Legislation Committee - 15/02/2012 - Estimates - EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS PORTFOLIO - Fair Work Australia
Fair Work Australia
CHAIR: The committee will begin today's proceedings with a discussion of Fair Work Australia and will then follow the order as set out in the circulated program. I welcome the Parliamentary Secretary for School Education and Workplace Relations, Senator the Hon. Jacinta Collins, and representatives from Fair Work Australia. Parliamentary Secretary, would you like to make an opening statement?
Senator JACINTA COLLINS: Thank you Chair. I think the committee has agencies before them so it would be more appropriate that you move straight to an agency.
CHAIR: Ms O'Neill, do you have an opening statement you would like to make to the committee?
Ms O'Neill : I do. I am able to provide the committee with further information on the status and progress of the two investigations concerning the HSU. Two investigations have been undertaken, one in relation to the HSU Victoria No. 1 branch and one in relation to the HSU national office. The investigations are discrete, but have largely been conducted concurrently. To be clear, the relevant dates in respect of the two investigations are: for the No. 1 branch, an inquiry commenced on 29 January 2009 and an investigation commenced on 27 April 2010. In respect of the national office investigation, the inquiry commenced on 6 April 2009 and the investigation on 27 March 2010. Both investigations have been conducted by the general manager's delegate, Mr Nassios. Mr Nassios has at all times been responsible for the conduct of both investigations.
The current status of the investigations is as follows. The investigation into the Health Services Union Victoria No. 1 branch, has concluded. The investigation was conducted under section 331 of the Fair Work (Registered Organisations) Act into compliance by the branch with its financial reporting obligations and, as I indicated, that was commenced in April 2010. This investigation followed the inquiry that I have mentioned, which began in January 2009 under section 330 of the registered organisations act. Mr Nassios completed his investigation on 23 December 2011. This investigation report was given to me shortly after Christmas and I received it when I returned from leave on 9 January 2012. The report made findings of 25 contraventions of the registration and accountability of organisations schedule and/or the rules of the Health Services Union. In broad terms the findings relate to the keeping and lodgement of required financial records and statements and the general duties in relation to the financial management of organisations.
My task as Acting General Manager now is to independently be satisfied that the contraventions have occurred and, if so satisfied, under section 336 of the Act must notify the reporting unit. In addition the general manager may do all or any of the following. Firstly, issue a notice to the reporting unit requesting that specified action be taken within a specified time to rectify the matter. Secondly, may apply to the Federal Court for an order under part 2 of chapter 10 of the act, which has a range of civil penalty provisions; or, thirdly, refer the matter to the Commonwealth Director of Public Prosecutions for action in relation to possible criminal offences. I anticipate being in a position to make decisions as to the action that I will take shortly. I also anticipate that notices of contravention will shortly be issued to the relevant persons.
The investigation report was produced for the sole purpose of enabling me as Acting General Manager to undertake my responsibilities under the act. I have considered whether to make the delegate's report publicly available. However, I have decided not to do so. The reason for this decision is that the report contains material in respect of the individuals concerned that may be considered to be defamatory. The Fair Work Australia General Manager has no express statutory immunity or protection against actions in defamation. I am therefore not prepared to voluntarily publish the report. However, I am aware that the report may be the subject of a request for production under Freedom of Information legislation or indeed an order for production by this committee.
In relation to the national office investigation, prior to the last estimates in October 2011 the delegate's advice to me was that he still expected to complete his investigations by the end of 2011. That advice was genuinely held at the time but has not proved to be the case in respect of the national office investigation. The investigation into the national office is at the concluding stage. Letters have been sent to individuals and reporting units concerned as to potential contraventions and the persons provided an opportunity to respond prior to the investigation being concluded. Given the large number of potential contraventions and the volume of evidence and supporting documentation involved, which totals some 6,600 pages, the time frames required to afford natural justice to those concerned has meant that the investigation was unable to be concluded by the end of 2011. Five letters were sent on 12 and 14 December 2011. Varying deadlines to respond were given, depending on the volume of material to which a response was invited. Three persons were given limited extensions by the delegate and the final response is now due on 5 March 2012. It took longer than anticipated to complete the letters setting out the possible findings of contraventions. This later issuing of the letters, together with the volume of material involved and the intervention of the Christmas and New Year period, led to providing the persons concerned with a longer period in which to respond than originally planned. The investigation will be concluded by the delegate as soon as practicable after taking into consideration any responses received.
I have not and would not direct the delegate to complete the investigation by a particular date. It is critical that the integrity of the investigation be maintained and not be undermined in any way so that any proceedings that may ensue are properly instituted and substantiated. This is essential to ensure that if parties have contravened the law they are held to account and do not avoid responsibility because of defects in the investigation.
I acknowledge that on the face of it the inquiries and subsequent investigations have taken an unreasonably long time, raising legitimate questions. The staff involved in the investigations are senior and experienced and I have confidence that they have acted in good faith at all times. It is important to understand that the investigations relating to the HSU are the only two investigations that have been undertaken under the legislation. As I understand it, under the previous legislation, there was only one other investigation undertaken, which took some 18 months to conclude.
The HSU investigations are unprecedented in terms of size and complexity, with the national office investigation significantly bigger than the branch investigation. Given this, there is little doubt in my mind that there are significant lessons to be learned and improvements to be made as to the conduct of inquiries and investigations under the Registered Organisations Act. Accordingly, I have decided to undertake an independent review of the conduct of the investigations. The review will be undertaken by KPMG and I will make the outcome of the review public. Before commencing the review, KPMG will undertake a detailed scoping exercise, which is expected to take approximately one week. That work will commence shortly. The substantive review will commence after the conclusion of the national office investigation so that the review can encompass both investigations. In my view, it would be inappropriate to commence such a review when the national office investigation has not been concluded.
I am aware of the allegations that there has been political interference in the investigations. I take them very seriously. I have absolutely no reason to conclude that there has been any such interference in the investigations. As the conduct of the investigations has been the responsibility of the delegate from commencement, had there been any interference of any kind, it would appear to me that it would have to have been manifested in some way to the delegate, such as the withholding of resources. I have asked Mr Nassios whether there has been any attempt to interfere, or any actual interference, in the conduct of his investigations and he has advised that there has not. This is in relation to both his role as the general manager's delegate and also the extended period in 2010 whilst acting general manager whilst Mr Lee was undergoing cancer treatment. I have also asked the former general manager, Mr Lee, whether there has been any attempt to interfere or any actual interference in relation to the investigations whilst he was general manager. He has assured me that there was not.
I and all Fair Work Australia officers will continue to try to assist this committee with any questions that you may have without prejudicing the current investigation. My overriding concern at all times has been to maintain the integrity of the investigations and any proceedings that may ensue. It is paramount that organisations or individuals are held to account for any offences or contraventions that may have occurred. I will continue to be cautious in providing detail about the investigations as I will not allow, through inadvertent disclosures here, any proceedings to be jeopardised. Thank you, Chair.
CHAIR: Thank you. Welcome, Justice Giudice. Did you also have any opening remarks you would like to make to the committee?
Justice Giudice : No, thank you.
Senator ABETZ: First, I note that it is Mr Giudice's last appearance before Senate estimates. I thank him for his service to the community and to this committee over the years of his stewardship—beforehand, but in later years as president of Fair Work Australia. I commence my questions relating to the opening statement by Ms O'Neill. You told us that the investigation into No. 1 branch has concluded.
Ms O'Neill : That is right.
Senator ABETZ: But we are then told that you are still determining whether you need to take action in relation to three possible areas. When does the investigation conclude and the matter finalise? What is the difference there?
Ms O'Neill : The investigation has concluded. That concludes with the investigation report provided by the delegate to me as acting general manager. Under the legislation, at the conclusion of the investigation, that triggers the consideration and action that I need to take.
Senator ABETZ: Are you able to be more specific than tell us that it will be determined shortly?
Ms O'Neill : I would say that I anticipate that it would be within approximately two to three weeks.
Senator ABETZ: Notwithstanding leave, commencing on 9 January through to now you have had over four weeks to consider the report, and are you still not able to finalise it?
Ms O'Neill : No, Senator.
Senator ABETZ: Can I ask how long the report is, how many pages?
Ms O'Neill : You can—
Senator ABETZ: Have you read it?
Ms O'Neill : Of course I have, Senator. It is in the order of 150 pages.
Senator ABETZ: Are you going to seek any specialist legal advice in relation to the decision you should be making?
Ms O'Neill : I have sought advice as to the actions available to me.
Senator ABETZ: They are set out in the act, aren't they?
Ms O'Neill : In relation to the specific findings that have been made.
Senator ABETZ: So are you going to make this decision yourself or are you seeking advice, and that advice I assume is being sought from the Australian Government Solicitor.
Ms O'Neill : It has not been sought from the Australian Government Solicitor.
Senator ABETZ: All right.
Ms O'Neill : And yes, I will be making the decision.
Senator ABETZ: From whom is the advice being sought?
Ms O'Neill : It is being sought from Corrs Chambers Westgarth.
Senator ABETZ: Thank you. The legal bill keeps ticking. You indicate that the report may be the subject of a request for production under freedom of information, and we will get there later. When a request for freedom of information was initially made to Fair Work Australia, it was completely rejected, wasn't it?
Ms O'Neill : Yes, Senator.
Senator ABETZ: Moving on to the national office, we were told that we genuinely believed that the investigation could be completed by the end of 2011. Given the process that is required, that letters have to be written out, time needs to be given for responses and then those responses considered, how can it have been a genuine belief in October that that could have all been done between estimates late October to Christmas—in very rough terms eight weeks we are talking about. Yet as I understand it we have given people 10 weeks to respond.
Senator RONALDSON: Estimates was 19 October.
Senator ABETZ: It was 19 October—that is the middle of October—even nine weeks. How could that have all been fitted in to that gap between October 19, even if the letters were sent the very next day, and the end of December? That was never going to happen, was it?
Mr Nassios : As at mid-October when I attended the estimates last time I was working on a timeline that by mid-November those letters would have been sent out. At that stage in mid-October, I misjudged the amount of material that would be within the letters of possible contraventions. I did expect that by mid-November I would be providing four weeks notice, at which point over Christmas-New Year I would simply complete the investigation. So by middle of December I would have received responses and then finalised it.
Senator ABETZ: So why didn't all that happen?
Mr Nassios : I simply misjudged the quantity of material that would comprise those letters of possible contraventions.
Senator ABETZ: All the timelines in this seem to have been misjudged. You also misjudged in May estimates, did you not? In May estimates you also thought that it would be completed by the end of the year.
Mr Nassios : That is correct. With hindsight I obviously misjudged it, but certainly as at May I was working on the assumption that I would be completing it by the end of the year.
Senator ABETZ: Is the investigation concluded at this point?
Mr Nassios : I have one person that needs to respond. That person has until 5 March to respond.
Senator ABETZ: Then you need to consider?
Mr Nassios : Yes.
Senator ABETZ: So when do you think you will be able to conclude the investigation?
Mr Nassios : To date, of the four persons that have had the opportunity to respond, I have had responses from three of those persons. I have already taken into account those responses to try to alleviate any time delays from this point on. Obviously if there is some sort of interconnection between those responses and the final response, I will have to take that into account. Again as soon as that response comes in very, very shortly—taking proper consideration of the response—my aim is very shortly thereafter to complete the investigation and to provide a report to the Acting General Manager.
Senator ABETZ: So, what date?
Mr Nassios : I cannot be specific but I would certainly think it would be March.
Senator ABETZ: Within the month of March. When did you first realise, Mr Nassios, that you would not be able to comply with that which you told the Senate estimates committee?
Mr Nassios : It became pretty clear when in the first week of November we had not completed the actual letters of contravention. In terms of trying to meet the timeline, you have already indicated an aspect of the cost of the investigation. Half of the cost of this investigation has been expended from September onwards in an attempt to try to finalise this as quickly as possible. That is the expenditure with the Australian Government Solicitor.
Senator ABETZ: Yes. All of a sudden things started to speed up, it would appear, once people started agitating about the length of time this had taken. Can I ask, Ms O'Neill, given that an assurance was given not once but twice to Senate estimates that this matter would be completed by the end of 2011, why weren't we communicated with or, given the public interest in the matter, a release setting out that the timeline that had been publicly stated would not be met until after there was public controversy, and I think then finally a statement was put out on 27 January, when you knew in early November that the promise that had been made could not be fulfilled?
Ms O'Neill : What I indicated at the last estimates was that from discussions with Mr Nassios I was satisfied that the investigation was on track and, as Mr Nassios has indicated, at that stage it was on track to be completed by the end of 2011. As I understand it, we issued a statement before the end of 2011 indicating that it would not be able to be completed until the new year but was in its concluding stages.
Senator ABETZ: If that is the case, I withdraw that suggestion. I thought you had only made the statement, if I recall, on 27 January.
Senator JACINTA COLLINS: Senator Abetz, it might be important to clarify that into the record, if you can take a moment.
Senator ABETZ: Yes.
Ms O'Neill : There was definitely a statement issued in December. I do not have the precise date. It was around the middle of December, to the best of my recollection, and it said:
The Fair Work Australia investigation into the national office of the Health Services Union has reached an advanced stage. The investigation has been thorough and conducted in a manner which ensures procedural fairness to all parties whose interests could be affected by the investigation. While Fair Work Australia is in the concluding stages of this process, it has not proven possible to complete the investigation before the end of the year as previously anticipated. Fair Work Australia expects to finalise its investigation in the new year. No further comment will be made about the investigation or the process until the investigation is concluded.
Senator ABETZ: I accept that; thank you. We were told five letters were sent on 12 and 14 December. Can we be told to whom they were sent?
Ms O'Neill : I am unable to answer that question, Senator, as the investigation has not yet concluded and, as I indicated, and as I did last time, I will continue to be cautious about answering questions about an ongoing investigation. I can say that all persons in respect of whom potential contraventions have been found in connection with the national office investigation have received notices of potential contraventions and supporting material.
Senator ABETZ: How do we know that they have received their notices? Were they personally served?
Ms O'Neill : The persons concerned were personally served.
Senator ABETZ: Two of the people appear to have self-identified in the media. Has that in any way prejudiced your inquiry?
Ms O'Neill : I am not sure. There is no immediate reason that comes to mind. They have self-identified and, in respect of those two individuals, they obviously have no difficulty in identifying themselves.
Senator ABETZ: So the fact that two people have been written to and have self-identified does not prejudice your inquiry. How does naming the other three potentially prejudice the inquiry if the naming of names does not prejudice your operations?
Ms O'Neill : What I can say to you is that I sought specific advice about whether the persons that have not self-identified could be confirmed or identified in this proceeding and my advice is that I should not, for the reasons that I have outlined.
Senator ABETZ: Was that the same source that you got advice from on the freedom of information requests? The Australian Government Solicitor?
Ms O'Neill : No, it was not the Australian Government Solicitor.
Senator ABETZ: We have other legal bills, apart from the Australian Government Solicitor?
Ms O'Neill : We do, Senator.
Senator ABETZ: Why were they not discovered?
Ms O'Neill : Discovered in?
Senator ABETZ: The documentation that we sought under freedom of information. We only got Australian Government Solicitor bills. Clearly the legal bill is a lot bigger than the $912,562 we were told about yesterday.
Ms O'Neill : I have information about the legal expenditure at large, but can I also just say that I will take that on notice but my very clear understanding is that all documents within the scope of the applications have been identified and where possible disclosed.
Senator RONALDSON: On that point, who gave the advice?
Ms O'Neill : In relation to the FOI?
Senator RONALDSON: No, in relation to not releasing the names of the people who have been sent notices.
Ms O'Neill : Corrs Chambers Westgarth.
Senator RONALDSON: Why did you not go to the Australian Government Solicitor for that advice, who has been involved in this investigation from day one?
Ms O'Neill : I have taken the view that, given the involvement of the Australian Government Solicitor in assisting the delegate in the conduct of the investigation, the advice that I am seeking as Acting General Manager is different in nature and it is appropriate to be differently provided.
Senator RONALDSON: You are questioning the impartiality of the Australian Government Solicitor?
Ms O'Neill : No, I am not, Senator.
Senator RONALDSON: Why wouldn't you go there?
CHAIR: The witness just answered that question.
Senator ABETZ: Can I ask on what date were Corrs first briefed?
Ms O'Neill : In relation to?
Senator ABETZ: The HSU matter, or matters.
Ms O'Neill : I will have to take that on notice.
Senator ABETZ: How long ago, just roughly? We can take the exact date on notice.
Ms O'Neill : In relation to my engagement of—
Senator ABETZ: No, in relation to the HSU matter.
Ms O'Neill : I will have to take that on notice.
Senator ABETZ: Are we talking six months ago, or a year ago?
Ms O'Neill : I would have to take it on notice.
Senator ABETZ: All right, when did you first talk to them?
Ms O'Neill : Again, I will take this on notice, but it was, I suggest, in October of last year.
Senator ABETZ: Can you explain to me why in the freedom of information request we were given legal bills from the Australian Government Solicitor but not a single mention was made of Corrs or their bills, discovered to us?
Ms O'Neill : As I have already said, I will take that question on notice. But I have a very clear understanding that all documents within the scope of the application have been disclosed to the extent possible.
Senator ABETZ: We will go there later, noting that it took three days and the information commissioner has come back to you seeking more cooperation from you. Trying to get this information has been like trying to get water out of a rock. Today we find that even more information is being withheld. We will concentrate on that later. Mr Nassios, do you accept that this investigation has taken an unreasonably long time?
Mr Nassios : I do not, Senator.
Senator ABETZ: I refer you to the third page of Ms O'Neill's opening statement headed 'Independent Review', which states:
I acknowledge that on the face of it the inquiries and subsequent investigations have taken an unreasonably long time, raising legitimate questions.
As a result, we are having a review.
If it has not taken an unreasonably long time, or legitimate questions have been raised, why are we having this review, Ms O'Neill, or are you of the view that it has taken an unreasonably long time?
Ms O'Neill : I am of the view that, on the face of it, the investigations have taken an unreasonably long time and that that raises legitimate questions as to why it has taken so long. Mr Nassios's view, as he has just expressed, is that it has not taken an unreasonably long time. But as I indicated in my opening, these investigations are unprecedented in terms of size, scale and complexity. Only a very small number have been undertaken. I think that inevitably there are lessons to be learned about the conduct of investigations and inquiries.
Senator ABETZ: The Watergate investigation was unprecedented as well, and they were able to complete that a bit quicker than this investigation. The Cole royal commission, the Wood royal commission—they were all unprecedented as well. They dealt with a lot more than 6,500 documents and they were able to bring them to a conclusion. We will see what KPMG has to say about that in due course.
Senator RONALDSON: It is nice to hear the dulcet tones of Mr Nassios again. Can I get an indication from you, Ms O'Neill, that you will indeed allow any questions to be put to Mr Nassios between now and 11.25 in relation to these matters, given that he is—
Senator Jacinta Collins: Senator Ronaldson, that is not an appropriate question and you know that.
Senator RONALDSON: It is a very fair question. I am sorry; perhaps you were not here. Mr Nassios was not allowed to answer questions for at least one set, probably two, of Senate estimates.
Senator Jacinta Collins: That is an exaggeration.
Senator RONALDSON: Mr Nassios is senior and experienced. Ms O'Neill, is Mr Nassios senior and experienced?
CHAIR: Before we go on—to clarify your previous question—it has always been the practice of this and other committees that it is for the leading officer and the minister to determine who is the best person to answer a question that has been asked. That will be done, as normal, on a question by question basis.
Senator Jacinta Collins: Mr Nassios has already answered questions from Senator Abetz.
Senator RONALDSON: I think I indicated that.
CHAIR: He has answered many questions.
Senator RONALDSON: I ask a question: last night in the Finance and Public Administration Senate estimates there was the remarkable revelation that one of your co-investigators had told the senior legal officer of the AEC, before 22 February 2011, that this investigation was close to finalisation. Ms Ailsa Carruthers is a co-investigator with you?
Mr Nassios : She is a senior office who has assisted me. So, yes, to that extent.
Senator RONALDSON: The answer to question on notice EW072712 Fair Work provided the response that the employers of FWA have undertaken investigative tasks in relation to the inquiry and investigation of the Health Services Union national office since commencement in April 2009 and Mr Terry Nassios and Ms Ailsa Carruthers …
She is obviously a senior officer.
Mr Nassios : Yes, certainly.
Senator RONALDSON: And indeed, she told, according to Mr Pirani, the Chief Legal Officer at the Australian Electoral Commission, that in February 2011 this investigation was close to finalisation.
Mr Nassios : If you could read that email out to me I would—
Senator RONALDSON: It is not an email, it is evidence, and I would be happy to provide the committee with my transcripts from last night.
CHAIR: Before we go on, I think that is necessary. If you are going to be asking the officer about evidence taken in a committee last night, unless he was actually up watching that evidence, I think it is appropriate that we all have that in front of us. If you could make that available now we would appreciate it.
Senator RONALDSON: Mr Pirani, last night—
CHAIR: Senator Ronaldson, are you going to ask questions about that evidence or are you going to present it so that the officer can actually talk about it? It is not appropriate that you actually ask questions about evidence that he has no knowledge of.
Senator RONALDSON: Are you suggesting that I am not going to give a truthful account of what was said at Senate estimates last night, Chair? Is that what your allegation is?
CHAIR: I am not making any allegation at all.
Senator RONALDSON: I am going to ask Mr Nassios the questions and I am sure that—
CHAIR: If you have got the evidence, put it before the committee so we can all follow what you are actually asking. What is it—
Senator RONALDSON: While it is happening, can I just—
CHAIR: Is a different subject or a going to ask questions on the evidence from last night?
Senator RONALDSON: I am waiting for it to be distributed so that we do not sit here for five minutes wasting valuable time.
CHAIR: We actually have plenty of time, Senator Ronaldson. If you are going to ask questions about that evidence last night, the committee actually wants it in front of it. If you want to ask questions on a different subject, you should do so and we can come back to this issue.
Senator ABETZ: Chair, on this issue, but also relevant—and Senator Ronaldson will be able to delve into this—on 6 December 2010 the Australian Government Solicitor was engaged in reviewing a draft letter to—name deleted—setting out proposed findings. That was on 6 December. Then on 7 December the discovered documents we finally got tell us that reviewing draft letter re additional proposed findings. Were you at a stage at the end of 2010 to make proposed findings?
Mr Nassios : That advice was in relation to the investigation into the Victorian No 1 branch. To answer your question, in terms of the national office, no.
Senator ABETZ: But it of course would be consistent, would it not, that somebody from your office may have said something to the Australian Electoral Commission that things were getting pretty close in February 2011.
Mr Nassios : Senator, if I may, I have copies of the emails that have gone between Ms Carruthers and Mr Pirani, and there is just no evidence of that having been said by her.
Senator RONALDSON: So Mr Pirani was actually giving untruthful evidence to the Senate Finance and Public Administration Committee last night when he said he had been told by Ms Carruthers?
CHAIR: Senator Ronaldson, I have already said that we are not going to go into that until we have got that Hansard extract before us. It is in the process of being done. I do want to ask you, because of the quick look that I had at it before it went off to be copied, I just want to understand the status of that. Do you actually say that this is a Hansard recording of last night?
Senator RONALDSON: No, I did not say that it was Hansard, I said it was a transcript that I have prepared.
CHAIR: Prepared by whom?
Senator RONALDSON: Prepared by me. As you are aware, Hansard is not in a position to provide these transcripts at least for two or three days after the Senate estimates.
CHAIR: Well, that is not always the case.
Senator RONALDSON: Are you suggesting that I have not transcribed this accurately?
CHAIR: You have been known to gild the lily before, but I am not suggesting anything.
Senator RONALDSON: Could I have an apology for that, please? It was a very silly comment.
CHAIR: You actually asked me if I was making any allegations and I am not. I just want to be very clear on what is before us. So you are saying, and correct me if I am wrong, this is a transcript prepared by you of what you claim to be the proceedings last night.
Senator RONALDSON: Indeed.
CHAIR: Okay. We just want to be very clear about that, so let us just wait until we have it in front of us. People need to understand the status of that.
Senator RONALDSON: Just while that is happening, can I ask Ms O'Neill a question. You say the reason that you will not release the delegate's report is that it might contain defamatory material and you do not want to be sued. I would assume from that that if there is an FOI application you will immediately authorise the release of that report, or alternatively, if I today in this committee request of you the tabling of that report—which of course would give you privilege—that you would do likewise.
Ms O'Neill : I cannot give a blanket guarantee, Senator, because obviously I would need to consider any particular application. Subject to any advice that I am not permitted to for some other reason, I would disclose those documents.
Senator RONALDSON: In this opening statement you have said that the only reason you will not release it is your concern about you being sued for defamation. I am saying to you—
Senator Jacinta Collins: Senator Ronaldson, I think you have summarised the report in an inaccurate fashion. That is not the only reason that Ms O'Neill has said she will not release the report.
Senator RONALDSON: What is the other one in the report—in this opening statement, what is the other one?
Senator Jacinta Collins: She says she does not want to prejudice proceedings.
Senator RONALDSON: Come on. If you are not going to get sued, you will release that report to the committee or you will immediately authorise its release under a Freedom of Information application.
Senator Jacinta Collins: That is not what she said at all.
Ms O'Neill : I am simply indicating that I do not feel giving comfortable giving a blanket guarantee in a hypothetical. I would need to consider the particular application. As I understand it, if documents are produced in either of those vehicles the issue of defamation does not arise.
Senator ABETZ: You should not be too worried about defamation proceedings because Mr Thomson walks away from them pretty quickly.
Senator RONALDSON: How quickly can you get an answer for me.
CHAIR: Is that your legal advice to the officer?
Senator Jacinta Collins: No, that is an inappropriate slur.
Senator ABETZ: It happened in the Supreme Court of New South Wales.
CHAIR: And what happened in the Supreme Court of New South Wales somehow indemnifies Ms O'Neill.
Senator RONALDSON: Ms O'Neill, have you put a timeframe on the KPMG report?
Ms O'Neill : I cannot because, as I indicated, the first part of the exercise is a scoping exercise.
Senator RONALDSON: That is for a week.
Ms O'Neill : Yes, and so at the conclusion of that stage I would anticipate being able to provide information about the expected duration of the investigation. As I have indicated, the substantive review would not commence until the conclusion of the national office investigation.
Senator RONALDSON: Did you provide a copy of your opening statement to the minister's office prior to today?
Ms O'Neill : I did not.
Senator RONALDSON: No. Thank you. Mr Pirani, do you have the transcript there? Sorry; Mr Nassios.
Mr Nassios : Yes, I have.
Senator Jacinta Collins: It has been a long day, Senator Ronaldson.
Senator RONALDSON: It is going to be a longer one, because I am here tonight. So, Mr Nassios, why would Mr Pirani indicate to the committee that following his discussions with Ms Carruthers that the FWA was close to finalising its inquiries in February 2011?
Mr Nassios : I would obviously struggle to give you an answer as to why Mr Pirani was of that view. Reading your transcript here, there was clearly a lot of confusion as to which report is being spoken about. We even have the BDO Kendall report in this discussion. I can only say to you that advice, if it was understood by Mr Pirani, would simply have been a misunderstanding, as he has himself acknowledged.
Senator Jacinta Collins: Wasn't that subsequently corrected?
Mr Nassios : Yes, by him.
Senator RONALDSON: There is no confusion in relation to what report it is. If you look at the transcript, you see that we clarified with Mr Pirani that the BWI Kendall report was done and dusted, so it certainly was not that—which he acknowledged.
Mr Nassios : Correct.
Senator RONALDSON: So why would Ms Carruthers make that comment to Mr Pirani?
Ms O'Neill : Ms Carruthers is not here. I would like to take that question on notice so that we can properly ascertain the situation.
Senator Jacinta Collins: Can we also clarify the timing here? Senator Ronaldson's transcript refers to 'he then sought an official response from Fair Work Australia'. When was that official response provided?
Senator RONALDSON: The official response was provided—I do not know when it was—but it was tabled in the Senate—
Senator Jacinta Collins: I am actually asking Fair Work Australia for clarification.
Senator RONALDSON: Oh, all right. Feel free to ask the questions.
CHAIR: As you are aware, we do try to help.
Senator RONALDSON: Indeed, that so-called clarification from Fair Work actually did not answer the question on notice. The question was:
Senator Ronaldson asked the Australian Electoral Commission (AEC) to approach the Fair Work Authority to seek a copy of any report on the outcome of its investigation into allegations concerning the unauthorised expenditure of funds by a previous President of the Health Services Union.
Well, he obviously meant the national secretary. And the only answer that came back from them, which he said last night to the committee, was almost verbatim from the response from Fair Work, was:
Fair Work Australia has advised that its investigation into the national office of the Health Services Union is continuing.
Well, something that is close to finalisation is still continuing, isn't it, Mr Nassios?
Mr Nassios : That is not the case either. I have to say that whatever the understanding of Mr Pirani was, it is incorrect—simply incorrect.
Senator Jacinta Collins: It was notified in about April last year. This is just recycled material, Senator Ronaldson.
Senator RONALDSON: There is nothing recycled about this, I can assure you, Parliamentary Secretary.
Senator Jacinta Collins: Yes it is.
Senator RONALDSON: Nothing recycled.
Senator ABETZ: There has been a lot of recycling going on in this inquiry.
Senator Jacinta Collins: This is true.
CHAIR: In any case, it is very difficult to ask the witness here today what was in the mind of a witness last night. I think that is very problematic. Can we move on to something that the witnesses can actually help you with?
Senator ABETZ: Let us try this: I understand Fair Work Australia put out a release on 3 February by Mr Roger Mitchell, which says:
Fair Work Australia is aware of recent media reports stating that findings of its investigation into the Health Services Union national office will be released on or about 5 March 2012. This is incorrect.
Did that occur? Did that happen?
Ms O'Neill : Yes, Senator.
Senator ABETZ: Why did Fair Work Australia find it necessary to do so?
Ms O'Neill : There had been significant reporting in the media that indicated, or at least could be read as indicating, that the report of the investigation would be released on 5 March, and I thought it appropriate to correct that record to make the situation clear.
Senator ABETZ: Fair Work Australia is an independent statutory body. So statements such as 'Fair Work Australia has indicated that it will be making its report on or around 5 March' are incorrect?
Ms O'Neill : That is not a comment that I have made or Fair Work Australia has made.
Senator ABETZ: And it is incorrect?
Ms O'Neill : Yes.
Senator ABETZ: Because that is the statement made by Minister Shorten on ABC News Radio on 1 March, two days before you put out that clarifying statement. I just wanted to get that on the record. So even the minister appears to have been labouring, for whatever reason, under a misapprehension that things were going to be finalised on or about 5 March.
Senator Jacinta Collins: Well, 5 March is one of the critical dates, is it not? That is when the responses are due.
Senator ABETZ: That is when the last response is due, yes. That it would be making its report on or around 5 March and, Parliamentary Secretary, if you need to know, Fair Work Australia, instead of 'around', said that it 'will be released on or about 5 March 2012. This is incorrect.' So the minister used the word 'around', Fair Work Australia used the word 'about'. I do not think there is any material difference between them other than, for whatever reason, the minister tried to put it out there that things were coming to a conclusion and Fair Work Australia had to correct that.
Ms O'Neill : The statement was not issued in direct response to whatever the minister did or did not say, which I actually do not recall. As I recall it, there were a number of reports in the press that indicated the same thing.
Senator ABETZ: We had been told then that it would be finalised in the New Year, and I dare say people are hoping it would be finalised relatively soon—but we will see how that all develops. We are told that you have written to five people and two have self-identified. Can we at least be told that Mr Thomson has been written to?
Ms O'Neill : I cannot, Senator.
Senator RONALDSON: Why?
Ms O'Neill : As I indicated earlier, I am unable to answer that as the investigation has not concluded.
Senator ABETZ: If it prejudices an inquiry to be told that somebody has been written to but it does not prejudice the inquiry if they self-identify, such as Ms Jackson and Mr Williamson, does it prejudice the inquiry if somebody denies that they were written to?
Ms O'Neill : I am not sure that I can sensibly answer that.
Senator ABETZ: Mr Craig Thomson has denied that he was written to by Fair Work Australia. We have that courtesy I think of the Sydney Morning Herald and The Australianon 27 January 2012 in an article by Kate McClymont, 'Mr Thomson denies receiving anything from the regulator.' So we have this bizarre situation that people can self-identify, people can deny, but Fair Work Australia cannot tell us to whom they have written. And indeed Senator Ronaldson has assisted me that 'Mr Thomson has bewildered by the reports. We don't know anything about it, Mr Thomson said.' That was on 28 January.
The difficulty here is information is being put out into the public arena. When the minister—and others—makes a statement in relation to when the matter might be concluded that is incorrect, Fair Work Australia is in the marketplace issuing a correcting release. Mr Thomson is in the marketplace saying he has not been written to, he is bewildered by the suggestion he might have been written to. But Fair Work Australia is not in the marketplace. Therefore, am I to assume that that information is in fact correct?
Ms O'Neill : No, Senator, you cannot make any assumption.
Senator ABETZ: So you only correct those things that you want to and not those that you do not want to. I would have thought—
Ms O'Neill : The difference is that one relates to the process and timing and the other relates to the content of the investigation. I cannot control what recipients of correspondence do or do not say, but we will not be providing information about the content of the investigation until it is concluded.
Senator ABETZ: But if I was somebody under investigation, having received a letter from Fair Work Australia setting out all these allegations against me, and I was in there in cahoots at the time with Mr Thomson and I then read in the public domain that Mr Thomson has not been written to and Fair Work Australia is not correcting the record in relation to that, I as a person that has been written to can only come to the one conclusion that Mr Thomson has not been written to.
Senator Jacinta Collins: I think that is disputed.
Senator ABETZ: And as a result the response that one might provide to the correspondence that has been sent out from Fair Work Australia could well be substantially different.
Ms O'Neill : I can only repeat what I have said, which is I am not in a position to confirm or otherwise the identities of the persons that have received correspondence that have not self-identified.
Senator ABETZ: Can I adopt the language of Mr Thomson: I would be bewildered, given all the evidence that is out in the marketplace courtesy of his own interviews, courtesy of the New South Wales Supreme Court action, if he had not been written to. I would have thought that to whom you have written to should not prejudice your inquiries.
Senator RONALDSON: Can I just come in there? Has anyone is this inquiry been granted immunity from prosecution for either civil proceedings or from the DPP?
Ms O'Neill : No.
Senator ABETZ: Thank you for that. In relation to correcting misinformation in the public arena, I turn to the Channel 7 story. Is Ms Hughes with us?
Ms Hughes : Yes, Senator.
Senator ABETZ: First of all, can I take you to the transcript of the Channel 7 news story, which I think was broadcast on 18 August 2011.
Ms Hughes : Yes, that is right.
Senator ABETZ: It made two findings—I withdraw that: two suggestions. Fair Work Australia found insufficient evidence to prosecute him—that relates to Mr Thomson—on allegations et cetera. There was also the suggestion that government sources have confirmed Fair Work Australia is now conducting a new inquiry looking into whether Mr Thomson lied to the first one. We had a clarifying statement issued by you, Ms Hughes, did we not?
Ms Hughes : Yes, that is correct.
Senator ABETZ: You told us:
Fair Work Australia wishes to correct claims made in some media earlier today, 18 August 2011. It has been suggested that Fair Work Australia has commenced a new inquiry.
Then you go on to say:
There is no new inquiry.
Now, I am willing to accept that. So if I were to ask you or Fair Work Australia if a new inquiry is being conducted into Mr Thomson lying, you would say, 'False, that is not occurring.' Is that correct?
Ms Hughes : I would say there is no new inquiry.
Senator ABETZ: To assert there is a new inquiry is false?
Ms Hughes : That is correct.
Senator ABETZ: Is it false to assert that Fair Work Australia found insufficient evidence to prosecute him—Mr Thomson—on allegations he used union funds?
Ms O'Neill : That goes to the substance of the investigation and I do not think that Ms Hughes as communications manager would be able to sensibly comment on that.
Senator ABETZ: Were you instructed by the powers that be within Fair Work Australia, Ms Hughes, to put out a clarifying statement to correct false information that was being put out into the public domain?
Ms Hughes : No, it was my suggestion to the general manager that we issue the statement.
Senator ABETZ: So why was it important to clarify the one but not the other? I accept there is no new inquiry, but why didn't we clarify the assertion that Fair Work Australia had found insufficient evidence to prosecute Mr Thomson?
Ms Hughes : It was our practice not to make any comment on the substance of the investigation. I saw that the suggestion that there was a new inquiry went to the process and therefore it was important that we corrected that.
Senator ABETZ: So false information about Mr Thomson—or potentially false information, I correct myself—that Mr Thomson has not been written to, potentially false information that no finding or insufficient evidence against Mr Thomson has been found—those things just are left out there in the ether without Fair Work Australia bothering to respond to them.
Ms O'Neill : The distinction has been maintained throughout the exercise, and the distinction is between the process and the substance of the investigation. For the reasons of prejudice, we have not and will not make comment about the detail of the investigations. That is different to questions about the process.
Senator ABETZ: All right. So why didn't we say, in relation to Mr Thomson's denial of receiving any information or the Channel 7 story about insufficient evidence, that 'these issues go to process, we cannot comment on them but no conclusion should be drawn from that' to at least preserve the position? Fair Work Australia is in the marketplace responding to things that are incorrect. You do not respond or make any comment in relation to other matters. Therefore the public and punters like me can only assume that, in the situation of a lack of denial or even a lack of an attempted explanation, we have to accept that at face value and Fair Work Australia has no difficulty with these denials or assertions.
Ms O'Neill : The overriding concern, as I have indicated, is to maintain the integrity of the investigation so that after the investigations are concluded, if people have contravened the law, then they are held to account. We are being particularly cautious about releasing or making public any information that may in any way risk or prejudice the investigation and any subsequent proceedings.
Senator ABETZ: Some of these denials could in fact prejudice your investigations. If I was somebody who was about to blow the whistle let us say on Mr Thomson but I have just heard on the Channel 7 news that Fair Work Australia has found insufficient evidence, why on earth would I put myself up to give further information to Fair Work Australia? That could also prejudice your investigation, could it not, if there is false information out there in the public arena and people then act on that? It seems to be a bit of one-way traffic here, Ms O'Neill, with your concerns that is of a concern to me.
Ms O'Neill : I have explained the rationale for the approach that we have taken.
Senator ABETZ: Mr Nassios, can you confirm to us that a new inquiry is different from a new line of investigation?
Mr Nassios : To answer that question—I am not sure how to exactly answer the question except to say that there was no new inquiry.
Senator ABETZ: We know that courtesy of Fair Work Australia's media release. But if somebody has lied to an investigation or it is suspected that somebody has lied to an inquiry or an investigation, you would be derelict in your duty not to pursue that and look at that and talk to other witnesses to ascertain whether or not that person has lied?
Mr Nassios : That is correct.
Senator ABETZ: And to pursue that would not be in technical terms a new inquiry?
Mr Nassios : Correct.
Senator ABETZ: So the fact that Mr Thomson may have lied to Fair Work Australia is not set aside by the fact that Fair Work Australia has put out a statement saying there is no new inquiry, because new inquiry has a technical meaning, whereas the line of investigation may in fact be actually taking place whilst Fair Work Australia is denying that there is a new inquiry. That is also correct, isn't it?
Mr Nassios : Can I speak hypothetically?
Senator ABETZ: Yes, hypothetically.
Mr Nassios : Yes, that is correct.
Senator ABETZ: Thank you for that clarification because it is a very important clarification. If somebody had potentially given Fair Work Australia evidence that Mr Thomson had lied to your inquiry and then they see in the media Fair Work Australia denying that there is a new inquiry into the allegation of lying, they would feel very deflated and wonder what was it all about and was it worth while for them to have provided that information to Fair Work Australia. I hope if anybody did come forward that that did not occur. Can I ask you, Ms Hughes, prior to the media release correcting this allegation of the new inquiry, did you have any telephone discussions with Mr Rhys Davies in the minister's office?
Ms Hughes : Yes, I did.
Senator ABETZ: How many?
Ms Hughes : My recollection is that I had about two conversations with him. I had received—my team had received a number of media inquiries during the day about the Health Services Union matter, and he contacted me to find out what we had issued in response to those inquiries. And then subsequent to the Channel 7 story, he also contacted me to see if what Channel 7 was saying was accurate and if we were making any comment.
Senator ABETZ: So in relation to this question, can you advise me whether anyone from the Prime Minister's office or from any ministers' offices have contacted Fair Work Australia inquiring into the investigation of Mr Thomson—sorry, chair, I should be referring to question No. EW0727_12 from supplementary budget estimates in October.
Senator Jacinta Collins: Last year.
Senator ABETZ: Yes, we have not had October estimates this year as yet. We are only in February.
Senator Jacinta Collins: It could have been the year before.
Senator ABETZ: Well, it has been going on for a long time, you are quite correct. You make our point exceptionally well, Parliamentary Secretary.
Senator Jacinta Collins: Thank you, Senator Abetz.
Senator ABETZ: My good friend and colleague Senator Ronaldson asked the question: 'Can you advise me whether anyone from the Prime Minister's office or from any minister's offices have contacted Fair Work Australia inquiring into the investigation of Mr Thomson and the HSU?' We are told about some communications in 2009 in answer (2)(a) but then in answer (2)(b) it says: 'The only other communication FWA is aware of is email contact between the Fair Work Australia Manager of Media and Communications and Minister Evans' press office on 18 and 22 August.' That answer is wrong, isn't it? There was phone and email contact, was there not, Ms Hughes?
Ms Hughes : Yes, that is correct.
Senator ABETZ: Parliamentary Secretary, can you explain to us how this answer misleading—I will not say that—incorrect answer found its way to the Senate? Is this the answer that was provided verbatim by Fair Work Australia to the minister's office or was it altered prior to its tabling in the Senate?
Ms O'Neill : I could answer that if you like, Senator. It is verbatim, and I am responsible for the content of it. It does appear that it is inaccurate in not identifying the phone communication, which I was not aware of at the time of completing the answer.
Senator ABETZ: Ms O'Neill, what inquiries did you make?
Ms O'Neill : This issue came up at the last estimates hearing—
Senator ABETZ: It did indeed and we now have the answer.
Ms O'Neill : I am sorry, Senator?
Senator ABETZ: We now have the answer.
Ms O'Neill : Yes, Senator. And following that, I followed up to the best of my recollection with Ms Hughes and got all of the documents concerned. I do not recall and I may not have thought to ask separately was there a phone conversation as well. If I did not do so, then that is my omission.
Senator ABETZ: It is a pretty big omission, Ms O'Neill, because members in the other place in the House of Representatives and in media interviews are trying to dismiss this contact as benign, of no consequence and it has all been disclosed in an answer to the parliament and documents that have now been made available courtesy of freedom of information that Fair Work Australia first of all tried to deny access to. Ms Hughes, did you make notes of those telephone conversations with Minister Evans' office?
Ms Hughes : No, I am afraid I did not.
Senator ABETZ: You did not. This answer was tabled nevertheless by Minister Evans' office, was it not?
Senator Jacinta Collins: I believe so, but with the change in government I will need to confirm that.
Senator ABETZ: And it would have come through Minister Evans' office, and he would have had a staff member who would have known that he had spoken with Ms Hughes. So we have a failure here both in Fair Work Australia and the minister's office in telling us everything. Ms Hughes, are you able to tell us from the best of your recollection—
CHAIR: Is that a question for the Parliamentary Secretary?
Senator ABETZ: Sorry? That was more, I suppose, editorialising.
Senator Jacinta Collins: It is editorialising, but I should put on the record what I briefly said to Senator Abetz.
CHAIR: I think that was directed for the minister's representative as opposed to Ms O'Neill.
Senator Jacinta Collins: I will take on notice which minister's office this question, and its filing, went through, because it may well have been the new minister, Minister Shorten, in this matter.
Senator ABETZ: As things drag out with Fair Work Australia it may well have been Minister Shorten, so I will give you the benefit on that and we will find out. If you did not ask Ms Hughes, who did you ask?
Ms O'Neill : I answered the question on the basis of the information and the knowledge that I had.
Senator ABETZ: How did you get that knowledge? Did you ask Ms Hughes, for example?
Ms O'Neill : I did follow up, as I said, in relation to the particular contact that was referred to.
Senator ABETZ: Ms Hughes and Ms O'Neill, you seem to be the two people responsible here. What actually occurred and why were the emails only referred to and not the telephone discussions?
Ms O'Neill : I think I have answered that—
Senator ABETZ: Was Ms Hughes asked to provide any contact by a minister's office?
Ms O'Neill : I believe so.
Senator ABETZ: So if Ms Hughes was asked that, can I then ask why we were only told about the emails and not the phone conversations?
Ms O'Neill : As I said, I may not have explicitly asked was there any phone communication. My focus was in relation to Ms Hughes on the emails, given that that is what had been discussed at the estimates hearing.
Senator ABETZ: Was your predecessor's inbox searched, for example—Mr Lee's?
Ms O'Neill : Not at that time, no.
Senator ABETZ: Has it since been searched?
Ms O'Neill : What I can say is I have asked all senior managers to advise me of any contact with any minister's office in relation to the HSU investigations and I have also asked the former general manager whether there was any other contact with any minister's office.
Senator ABETZ: When were those requests made?
Ms O'Neill : Since the answer was provided. I provided that answer believing that I had all of the information available in respect to any contact that had been made.
Senator ABETZ: So it was after the FOI request that you started to believe that further investigation should be made in relation to this answer.
Ms O'Neill : No, it was not related to the FOI request.
Senator ABETZ: But it was after the FOI request went in.
Ms O'Neill : It would have been, yes.
Senator ABETZ: Can you tell us what made you doubt that this answer might be incorrect?
Ms O'Neill : It was less that I was concerned about the accuracy of the information, it was more that in light of all of the reporting about allegations of interference, I took steps to explore that issue and ascertain the extent and nature of any contact.
Senator ABETZ: All right. With that exploration did you discover that there had been telephone contact between the minister's office and Ms Hughes?
Ms O'Neill : No, Senator.
Senator ABETZ: It was not a very thorough investigation, was it, Ms O'Neill? There was me in the one question being able to get the information out of Ms Hughes very truthfully answering that there had been. Why weren't you able to get that?
Ms O'Neill : All I can do is outline the process I undertook, which was to ask all senior managers to advise me of any contact with minister's office, as I have indicated now.
Senator ABETZ: We have got this answer.
Ms O'Neill : It may well be that, in the same way that is was for myself, Ms Hughes did not specifically point to the phone conversations because it was certainly seen as part of the email exchange that is being released through the Freedom of Information Act.
Senator ABETZ: In your further investigation or subsequent investigation have you discovered any more contacts between the minister's office and senior management of Fair Work Australia?
Senator Jacinta Collins: With respect to?
Senator ABETZ: I think we are talking about the HSU inquiry. I do not think we are under any illusion about what we are talking about here, Parliamentary Secretary, but thank you for the clarification.
Ms O'Neill : Yes.
Senator ABETZ: There has been?
Ms O'Neill : There has.
Senator ABETZ: Can you please divulge that to us.
Ms O'Neill : I can. One further communication has come to my attention in the last few days, and that is the minutes of an internal meeting held on 25 August 2011. I will read from the minutes. They say:
As a result of questions asked by Senator Ronaldson of Minister Evans in the Senate on 17 August 2011, TL—
being Mr Lee—
advised that he had received a telephone call from the minister's office regarding the expected time frame for completion of the national office investigation. TL directed the minister's office to FWA's appearance before Senate estimates on 30 May 2011 in which the delegate advised that the investigation may be completed in the latter half of 2011.
Senator ABETZ: That is interesting, 'the latter half of 2011'.
Ms O'Neill : Mr Lee has advised me that no other contact with the minister's office has taken place whilst he was general manager.
There is something further, Senator. In relation to my own contact since I have been acting general manager, I received a telephone call from the minister's office on, I believe, 6 January 2012. I was simply asked whether I was aware that the former industrial registrar, Mr Williams, had issued a public statement concerning the investigation.
Senator ABETZ: And that was all that you were asked?
Ms O'Neill : That was the entirety of it. Indeed, that was the end of the conversation.
Senator ABETZ: So did you say yes or no to that inquiry?
Ms O'Neill : I believe I said yes. I think I was aware of it.
Senator ABETZ: That was where it was left?
Ms O'Neill : Yes.
Senator ABETZ: There was not any discussion as to how you might respond?
Ms O'Neill : Absolutely not.
Senator ABETZ: Who made that inquiry?
Ms O'Neill : The individual concerned? Is that what you are asking?
Senator ABETZ: I do not need to know the name, but was it Mr Shorten's office at that stage?
Ms O'Neill : Yes.
Senator ABETZ: And was it a staffer in Mr Shorten's office or the minister himself?
Ms O'Neill : It was not the minister.
Senator ABETZ: Can we be given an explanation why that document was not discovered in the list of documents that we sought under Freedom of Information?
Ms O'Neill : I will take it on notice, but I imagine the answer is because it was outside the relevant period.
Senator Jacinta Collins: I will take that on notice.
Senator ABETZ: Can I ask you then, Ms O'Neill, are you now satisfied that you have all the contacts with the minister's and Fair Work Australia employees in relation to the HSU inquiry?
Ms O'Neill : I am, Senator.
Senator ABETZ: As satisfied as you were when you forwarded the answer EW0727?
Ms O'Neill : I am satisfied, Senator.
Senator ABETZ: So you are as satisfied now as you were then with this answer, but you are acknowledging that this answer was wrong and did not contain at least three other contacts?
Ms O'Neill : That is not the case. It did not include the phone contact and it did not include a reference to the draft minutes but, as I said, that has only come to my attention in the last few days.
Senator ABETZ: But I think we were agreed that Ms Hughes had at least two telephone contacts with the minister's office.
Ms O'Neill : Yes, Senator.
Senator ABETZ: In fact those three contacts to which I referred. I will hand over to Senator Ronaldson.
Senator RONALDSON: Question EW0728_12—sorry, before I do that, just for the public record, not that I am expecting an apology from the chair—
Ms O'Neill : Sorry, which number was it?
Senator RONALDSON: I will get back to that in a second. As at 9.40 am, Hansard confirmed they had not finished the transcript from Finance and Public Administration yesterday. I do not expect an apology but I do want that on the public record.
CHAIR: If you are seeking an apology from me, the point I was making is that you claimed that it takes three days, as I understand it, and I said that is not always the case. But anyway, I am happy to have that debate with you, if you want to continue to persist with that.
Senator RONALDSON: Whatever.
CHAIR: It is up to you.
Senator RONALDSON: Question EW0728_12 and I think that question from memory was whether there was in existence a memorandum given to FWA by industrial registrar Doug Williams immediately prior to his retirement and if that memorandum is in existence. I understand from my colleague Senator Abetz with any of his FOI applications that that has not been provided. If that does exist, would you undertake to provide that memorandum to the committee please?
Ms O'Neill : I will have to take that on notice. In answering the question on notice we do not confirm the existence of that document.
Senator RONALDSON: I don't think so, no. I might be wrong but I cannot see any note of it actually having been responded to.
Ms O'Neill : There has been a response to that question, I believe, Senator.
Senator RONALDSON: What was it?
Ms O'Neill : Essentially privilege was claimed.
Senator RONALDSON: Why would privilege be claimed in relation to that?
Ms O'Neill : As I have indicated, with any questions that reveal the scope and detail of the investigation we have been advised to claim privilege.
Senator RONALDSON: Did Mr Williams make any recommendations in those early stages or give in that memorandum any indication of his view on the matter?
Ms O'Neill : I cannot answer that for the same reason.
Senator RONALDSON: I am not asking what he said, I am asking whether indeed that is what was in the memorandum.
Ms O'Neill : I will take that on notice.
Senator RONALDSON: Parliamentary Secretary, can you clarify for me whether Mr Thomson has had contact with anyone in former Minister Evans' office or their staff in relation to this inquiry? Can you also take on notice please whether Mr Thomson has had any contact with Minister Shorten or any of Mr Shorten's staff in relation to the conduct of this inquiry?
Senator Jacinta Collins: I will take that on notice.
Senator RONALDSON: Thank you. Who sent out the potential letters of findings of possible contravention?
Senator Jacinta Collins: Sorry, Senator Ronaldson, just for one moment: Chair, we are finding it very difficult to hear Senator Ronaldson, if something can be done.
Senator RONALDSON: That is not normally a complaint.
CHAIR: It is normally the other way.
Senator RONALDSON: I am sort of flattered in a funny way. I will speak up more, if that makes it easier for you. Who sent out the potential letters of findings of possible contraventions?
Mr Nassios : I did, Senator.
Senator RONALDSON: Thank you. When you did that, what instructions did you give the media in the letters that were sent out?
Mr Nassios : In essence inviting a response by a particular time.
Senator RONALDSON: You are aware no doubt that Mr Thomson has, as Senator Abetz said, denied receipt of that documentation. Do you agree with his statement that he was not served or not provided?
Senator Jacinta Collins: I think we have covered this territory, Senator Ronaldson.
Senator RONALDSON: I do not think we have. I most certainly do not think we have, Parliamentary Secretary. Mr Nassios?
CHAIR: I think we have covered that.
Senator RONALDSON: I am asking Mr Nassios a question. Could you please let him answer the question?
CHAIR: The officers have been very clear that they are not going to go to the answering of questions that go to the conduct of the inquiry.
Senator RONALDSON: It is not your responsibility to make that claim, Chair. I am asking Mr Nassios a question. If he wants to make that claim, that is fine. It is not your role.
CHAIR: It is my role to ensure the conduct of these committee hearings proceeds in an orderly way, and you are re-asking a question that has been asked many times and it has already been answered.
Senator RONALDSON: Ms O'Neill has been very quick in the past to jump in. She has not done so. I will ask Mr Nassios. Do you disagree with the statement made by Mr Thomson that he was not served with this letter?
Mr Nassios : On the basis that Ms O'Neill has put, that it may prejudice the outcome, I am unable to answer that question.
Senator RONALDSON: On what basis?
CHAIR: We have been through all this, Senator Ronaldson.
Senator RONALDSON: On what basis will it prejudice the outcome of the investigation?
CHAIR: You are simply re-asking the same questions over and over again. It really does not get the committee—
Senator RONALDSON: You do not look nor sound like Mr Nassios, Chair. Can I ask, Mr Nassios, on what basis will it do so?
Ms O'Neill : On the basis that I indicated earlier, we have obtained specific advice on this question and are following that advice.
CHAIR: That sounds very familiar.
Senator RONALDSON: Mr Nassios, will you agree with me that the previous test that you have put in relation to answering of questions is to whether it may or may not interfere with your investigation.
Mr Nassios : In February last year I drew a distinction between how it may prejudice me in my gathering of evidence and the prejudice that may ensue to an individual who may be subject to some sort of finding against them. It is a distinction that I attempted to draw—I may have not drawn that successfully—but certainly to the extent that my evidence-gathering has concluded, I see no prejudice to that aspect of it but certainly to the outcomes of the investigation.
Senator RONALDSON: So your investigation has concluded?
Mr Nassios : The evidence-gathering phase of the investigation.
Senator RONALDSON: You said the investigation has concluded.
Mr Nassios : I apologise for having said that—it is the evidence-gathering phase.
Senator Jacinta Collins: Can we clarify which investigation we are referring to, the No 1 or the national office?
Senator RONALDSON: We were talking about the investigation in relation to Mr Thomson. I would have thought that is probably pretty obvious at this stage.
Senator Jacinta Collins: The national office.
Senator RONALDSON: Of course it is not the Victorian one. Mr Nassios, you said last year in relation to my questions about who had been interviewed that you were happy to answer them because it would not hinder your investigation at that point. So before the intervention of the minister at the time, you were prepared, were you not, to tell me who had been interviewed—it was a post event obviously—who had been interviewed in relation to these allegations. Is that correct?
Ms O'Neill : Can I just make the point that the information that was given and the distinction that Mr Nassios has drawn also, as I understand it, predated the legal advice that has subsequently been relied on in relation to the claim of privilege. The distinction as to any prejudice to the investigation is, as Mr Nassios has indicated, only one dimension. There is another issue about prejudice to any proceedings that may ensue. As I have indicated, it is paramount in my mind to maintain the integrity of that exercise even if that means being particularly cautious on the way through so that people can be held to account if appropriate.
Senator RONALDSON: That was most fascinating. Your words were 'hinder my investigation'. Can you tell me, please, on the basis of that test, how answering my question in relation to whether you disagree with Mr Thomson's statement that he was not served with or provided with this letter, how in any way that can possibly hinder your investigation, given that you have previously agreed to provide me with the names of people who have been interviewed?
I put it to you that the names of people who have been interviewed I would have thought was a far more significant potential hindering of your investigation than whether someone had been served post the inquiry in relation to statements et cetera, that time having passed. How can it possibly be a more heinous intervention, or hindering, than the provision of people who had been interviewed?
Mr Nassios : If I spoke hypothetically, perhaps I can try to answer your question. As you have pointed out, clearly my explanation last February was not as clear as it ought to have been.
Senator RONALDSON: I did not point that out at all.
Mr Nassios : In my view, as I say, I was trying to draw a distinction between the impact on my evidence-gathering as opposed to the impact it may have on individuals. Hypothetically speaking, in terms of noting persons that have been interviewed at a time the investigation is ongoing—the evidence aspect of it ongoing—I am not certain that the prejudice, once I have concluded that the information has been gathered, is there. I am not privy to the advice that Ms O'Neill is speaking of, but I can see that hypothetically to name an individual who has been sent a letter of contravention could adversely prejudice their reputation. In the event, that individual could come back to me and convince me that in fact they have committed no contraventions.
Senator RONALDSON: So it would have a potential impact on the person, is the rationale for not providing it, as opposed to the excuse given by Ms O'Neill that it would interfere with the conduct of the investigation. They are two entirely different things, are they not?
CHAIR: Before we get too excited, let us be very clear. I was loath to let that go in terms of discussing hypotheticals. Mr Nassios was providing evidence based on a hypothetical. Let us just keep that in mind if we are going to jump to conclusions about that proposition.
Senator RONALDSON: I will put the question again. Mr Nassios, in relation to the matter given to Ms O'Neill and the so-called independent legal advice that she has been given that the release of that name might interfere with the conduct of the investigation, you have just given evidence that in a hypothetical case you did not believe that is a situation but you could understand that it might not be released because, potentially, it could impact on the reputation of the person. Do you acknowledge that they are two entirely different matters?
Mr Nassios : I am not going to the prejudice to the investigation. I have tried to answer a hypothetical situation.
Senator RONALDSON: All right. Thank you.
Proceedings suspended from 10.33 to 10.50
CHAIR: We will now resume the Senate estimates hearings.
Senator RONALDSON: Can I just ask who gave the advice in relation to privilege on the Doug Williams' memo?
Ms O'Neill : I will have to take that on notice. I cannot immediately recall.
Senator RONALDSON: The Australian Government Solicitor?
Ms O'Neill : As I said I cannot immediately recall. I will take it on notice.
Senator RONALDSON: Because it would seem a little strange, wouldn't it, that if you got advice from the AGS in relation to the Williams' memo and privilege but you have gone elsewhere to get advice in relation to questions on whether Mr Thomson has been served with his papers is allowable? Thank you.
Senator ABETZ: Ms O'Neill, when did you first realise that the answer to which I was referring previously, No. 0727_12, was incorrect?
Ms O'Neill : Could I take that on notice? I want to be as accurate as I can be.
Senator ABETZ: A week ago?
Ms O'Neill : I believe it was—
Senator ABETZ: This month?
Ms O'Neill : I believe so, yes.
Senator ABETZ: A week ago?
Ms O'Neill : As I said, I would rather be accurate and think about that because I cannot quite—
Senator ABETZ: But you knew about it before estimates today?
Ms O'Neill : Yes, Senator.
Senator ABETZ: Why was that important correction not contained in your opening statement to this committee and why did I have to ask questions about it to get that information from you?
Ms O'Neill : There is no particular reason for that.
Senator ABETZ: Well Ms O'Neill, but for me asking the question we would never have found out that this answer, which you knew to be wrong, was going to be corrected. You are aware that in this process if you provide an answer—and this happens from time to time inadvertently—that incorrect answers are given and there is a responsibility to correct the answers as quickly as possible and that, if you found out about it a few days ago or even a week ago, keeping it for Senate estimates might have been an okay excuse if it had been in your opening statement.
Ms O'Neill : I guess the reason is that I was perhaps overly confident that the questions would arise during the estimates process.
Senator ABETZ: That is a lovely approach to Senate estimates that answers to parliamentary questions—
CHAIR: Can I say, Ms O'Neill, that that is not really the appropriate course of action. The committee does expect corrections to any inaccurate answers to be made as soon as they come to the attention of the officers, and I would appreciate you ensuring that that happens in future.
Ms O'Neill : Thank you, Senator, I will.
Senator ABETZ: Ms Hughes, can I turn to you: what was the content of the conversation between you and the minister's staffer?
Ms Hughes : As far as I can remember he was inquiring about the Channel 7 media report and if what was alleged was true and if we were making any statement. And at that stage when I spoke to him I had not seen the report myself. I was aware there was a report that was going to be made. I was getting a number of media calls and I did not actually see the report myself. I sent him—I subsequently spoke to the general manager about the statement and that was issued to journalists and it was also subsequently issued to Mr Davies.
Senator ABETZ: So the investigation of the clarifying statement, the genesis of that, was in the staff member's phone call to you, Ms Hughes?
Ms Hughes : No.
Senator ABETZ: When he inquired as to whether or not Fair Work Australia was going to make a statement?
Ms Hughes : I am not sure that it was as specific as that. I was receiving a number of media calls, and clearly Mr Davies was as well. He was merely inquiring (a) if it was true and (b) if we were making any response, which is consistent with what would happen in relation to any other matter, any dispute.
Senator ABETZ: But his only question related to whether or not a new investigation into Mr Thomson lying to Fair Work Australia had been initiated?
Ms Hughes : At that time I just said that I didn't know, I would need to speak to the general manager.
Senator ABETZ: Yes, but he did not inquire as to whether Fair Work Australia had found no evidence against Mr Thomson?
Ms Hughes : No.
Senator Jacinta Collins: That would be quite improper for him to inquire that.
Senator ABETZ: Well, it was in the public domain. It was being publicly asserted on a TV station. It is interesting to know that that bit in relation to Mr Thomson, which undoubtedly was good news for Mr Thomson, was not to be questioned. The only one was whether there was a new inquiry or a line of inquiry. So the staff member from Senator Evans' office was interested in trying to limit the political damage that this story might cause, wasn't he?
Ms Hughes : I cannot speak for Mr Davies, what his intention was.
Senator ABETZ: Well, we do have the email that, after Fair Work Australia obliged by putting out this partial clarifying statement only in relation to the new inquiry, he emailed you, 'Thanks, that's awesome, should minimise any run it gets in morning.' So this was not a pursuit by Senator Evans' staffer of establishing facts, it was about the media cycle, the spin cycle, as to the way it was going to be portrayed in the media the next day—
Senator Jacinta Collins: That is not what Ms Hughes has said. She has said that the staffer was inquiring as to the facts. You have asked did he inquire as to other facts, which would have been quite improper because they related to the content of the investigation. But she has clearly indicated that all he was asking was with respect to the facts.
Senator ABETZ: If that is the case, Parliamentary Secretary, and I was developing the point: if he was only asking about the facts, why wouldn't he have said, 'Thank you for clarifying'? Instead he emailed, 'Thanks, that's awesome, should minimise any run it gets in morning', clearly concerned about the media, about the public damage to the government caused by this Channel 7 story. This was not just a benign request, 'What are the facts please?' and then an email 'thank you for clarifying,' this is 'Thanks, that's awesome, should minimise any run it gets in the morning.'
Senator Jacinta Collins: As you know, Senator Abetz, there are occasions we cannot contain you expressing your motivations and opinions either.
Senator ABETZ: And how is that relevant to this inquiry, Parliamentary Secretary? We were doing exceptionally well.
Senator Jacinta Collins: His closing remark is not relevant to the communication.
Senator ABETZ: We were doing exceptionally well with Ms Hughes.
CHAIR: Let us just come back to questions and answers.
Senator ABETZ: Does not that email to you, Ms Hughes, indicate in fact the flavour of the discussions that you had with Senator Evans' staff member about this media issue?
Ms Hughes : Not from my side of the conversation, it didn't.
Senator ABETZ: So out of the blue serendipitously he just happens to say, 'Thanks, that's awesome, should minimise any run it gets in the morning.' Why would he seek to share that with you? Can you shed any light on that?
Ms Hughes : No, I cannot.
Senator ABETZ: It wouldn't be because you and he had had close discussions as to how you could shut down this Channel 7 news story as quickly as possible?
Ms Hughes : No, that was not the case.
Senator ABETZ: He never asked for a media release to be issued?
Ms Hughes : No, he did not.
Senator ABETZ: He did not. So what did he say in those telephone conversations to you?
Ms Hughes : To the best of my recollection—and I need to perhaps put it in context in that there were a large number of media calls at the same time; I was juggling quite a few calls and I was at home at the time—he was simply following up on the story trying to ascertain if there were any new developments and if we were making any public statements to journalists.
Senator ABETZ: Did he in any way encourage you to make such a public statement?
Ms Hughes : I do not believe so, no.
Senator ABETZ: You do not believe so? Of course it is very difficult to recollect if you do not have notes from telephone conversations, isn't it, Ms Hughes?
Ms Hughes : Yes.
Senator ABETZ: Is that your usual practice, not to take notes?
Ms Hughes : I normally take notes when I am in the office. At home, and especially when there are a large number of calls and they are relating to the same thing, I just tend to take down the notes of the person who has called and their number so that I can call them back.
Senator ABETZ: The final response—if it was his final response, but at least the email response we are given by Fair Work Australia—clearly indicates that there was a huge political imperative in his mind when he says:
Thanks, that's awesome, should minimise any run it gets in the morning.
Can I ask you if you have spoken to the staff member of Senator Evans in recent weeks?
Ms Hughes : The last time I spoke to Mr Davies would have been when the ministerial reshuffle happened and I called him to find out what the new arrangements were as to who would be the press secretary taking over from him.
Senator ABETZ: And no discussion about this matter took place?
Ms Hughes : Not that I can recall, no.
Senator ABETZ: Not that you can remember. I dare say that was also another unnoted telephone conversation.
Ms Hughes : I do not note every single telephone conversation.
Senator ABETZ: I beg your pardon?
Ms Hughes : I do not note every single telephone conversation I have.
Senator ABETZ: That stands to reason, but when you are doing business, especially in circumstances where a whole inquiry could be prejudiced by incorrect information going into the public domain—and you were talking with the general manager about it—one would have thought that might be a pretty serious lot of telephone conversations to have on which you may have taken some notes, but apparently not.
Mr Nassios, can you just confirm to us that, in relation to Mr Thomson, there has been an ongoing inquiry and investigation since January 2009?
Mr Nassios : April 2009.
Senator ABETZ: Sorry, April 2009.
Mr Nassios : That is into the national office of the Health Services Union, yes.
Senator ABETZ: Why is it that the bills provided to us from the Australian Government Solicitor did not delineate between the two matters, the Victorian branch and the national branch?
Mr Nassios : You would have to ask the Australian Government Solicitor that. I am not responsible for those bills.
Senator ABETZ: Who checks them off?
Mr Nassios : I check them off, but they are drafted by the Australian Government Solicitor.
Senator ABETZ: Of course they are. Not that I can talk, but I assume they are your initials on the bills that allow payment?
Mr Nassios : Correct.
Senator ABETZ: So how did you know whether the bills were for a particular Victorian inquiry or for the national inquiry?
Mr Nassios : There would have been some overlap in them, but I certainly did not draw any real distinction between the two inquiries in terms of billing.
Senator ABETZ: Just for the sake of completeness, Ms O'Neill, you have indicated to us that you anticipate correcting answers when and if you are asked. I have not asked any further questions. Should I be asking are there any other answers that need correction just so that we have that on the record?
Ms O'Neill : Sorry, Senator, it was an ill-advised and ill-considered response that I gave and I expressed myself very clumsily. There is nothing further in terms of corrections and, if there are any corrections to be made through any of the inadvertent admissions, they will be made as quickly as possible after they come to attention.
Senator ABETZ: Thank you for that.
Senator Jacinta Collins: Senator Abetz, can I just return to the FOI request issue with respect to costs on a preliminary basis, because I have not concluded my questions in relation to the committee's questions here yet. My understanding was that the request was limited to government ministers and departments, agencies or officers relating to the above. So it may be reasonable to assume that Fair Work Australia would not include Corrs, but I undertake to the committee to look at more detail in that. And if the committee seeks broader information, we of course will respond.
Senator ABETZ: Ms O'Neill, did this inquiry include accounting firms?
Ms O'Neill : Yes, Senator.
Senator ABETZ: Who briefed the accounting firms?
Mr Nassios : That would have been me.
Senator ABETZ: We have been provided with a bill from the accounting firm, have we not, in the discovery?
Mr Nassios : I don't recall.
Ms O'Neill : Yes.
Senator ABETZ: Yes, we have. Parliamentary Secretary, so if private accounting firms' bills are provided to us, why are not private legal firms' bills provided to us?
Senator Jacinta Collins: Which is why I indicated my response was only preliminary at this stage because I am not necessarily satisfied—
Senator ABETZ: Yes, very wise to say it was only preliminary. Whoever provided that to you, it was a good attempt but not good enough. If we may move on to matters freedom of information. Who can assist us in that regard?
Ms O'Neill : I can, and we also have Ms Jane Gibbons, the information management manager at Fair Work Australia.
Senator ABETZ: Thank you. Ms Gibbons, can you indicate to us whether any legal advice was sought in relation to my officer's freedom of information request prior to the written response that we received—the initial written response?
Ms Gibbons : Yes, there was—for HSU inquiries in relation to freedom of information in early September. I went straight to my director and the acting general manager at the time, and we decided to seek legal advice.
Senator ABETZ: Did you just say 'four HSU inquiries'?
Ms Gibbons : For inquiries relating to freedom of information.
Senator ABETZ: 'For' not the number four?
Ms Gibbons : Well, for inquiries—
Senator ABETZ: F-O-R inquiries?
Ms Gibbons : Yes.
Senator ABETZ: For a moment there I thought you were referring to the number four and I thought, 'Don't tell me there are another two inquiries.'
Ms Gibbons : No.
Senator Jacinta Collins: Or you mean investigations.
Senator ABETZ: I do not quite think that badly of Fair Work Australia. Thank you for that clarification. From whom was that legal advice sought, the Australian Government Solicitor?
Ms Gibbons : Yes.
Senator ABETZ: Was there advice that you should simply not respond at all?
Ms Gibbons : They talked to me about my rights and obligations under freedom of information and the exemptions available, and they also directed me to the database which has all of the information to do with the investigations where I conducted my searches. I then had further discussions with them once I had found some information in relation to the investigations.
Senator ABETZ: Did they advise you to do this or was it your decision?
Ms Gibbons : It was my decision.
Senator ABETZ: Were you acting on their advice?
Ms Gibbons : I discussed with them the exemptions under freedom of information and I proceeded along those lines. I was comfortable.
Senator ABETZ: Has Fair Work Australia paid the Australian Government Solicitor for that legal advice?
Ms Gibbons : We have been billed. I am not sure whether we have paid them yet.
Senator ABETZ: Do you now accept that that was wrong, that advice?
Ms Gibbons : At the time of my investigation and my decision, I was comfortable with the outcome and my decision, which was to use section 37(1)(a) and section 25 under the Freedom of Information Act.
Senator ABETZ: Well, you were comfortable until we got the intervention of the Information Commissioner, and then some documents were made available; is that right?
Ms Gibbons : There was a review decision, and that was not my decision, that was done by another officer.
Senator ABETZ: In Fair Work Australia?
Ms Gibbons : Yes.
Senator ABETZ: Who was that?
Ms Gibbons : Mr Mihelyi.
Senator ABETZ: Is she with us today?
Ms Gibbons : He is, Senator.
Senator ABETZ: Oh, Mr, I am sorry, I thought you said 'Ms'. My apologies, Mr Mihelyi. I do not know as yet but if you could take a seat that would be helpful. Can you indicate to us why we were not provided with a list of documents, as is usually the case, that there is a list of documents either discovered or made available, redacted, and then those that you do have that fall into the scope are not made available. Why was that list, and as of today, still not provided?
Ms O'Neill : Could I perhaps just provide a little bit of context that might go some way to assisting in understanding the actions that have been taken? The Freedom of Information Act has applied to Fair Work Australia since its commencement, but prior to last year there have been no requests under the legislation. There was really no internal experience for particular capabilities around the legislation. It was a fairly new development. Previously, the Australian Industrial Relations Commission had been exempt from the legislation, with some minor exemptions. The point I am making is simply that in the context of that limited internal experience and expertise, we have relied more heavily than you might otherwise expect on external advice.
Senator ABETZ: But how can you say that? Yes, you did rely on external advice, but you sought advice from the Australian Government Solicitor and we are still not 100 per cent sure whether you acted on that advice, but it appears as though you paid for that advice, although the information commissioner clearly did not agree and then we had the appeal. Can I ask Mr Mihelyi as to why you then came to the decision to release certain documents?
Mr Mihelyi : We received the review related things from the OAIC. We then sought advice in terms of what we needed to do—
Senator ABETZ: Who from?
Mr Mihelyi : The legal advice, just in terms of the process.
Senator ABETZ: The Australian Government Solicitor?
Mr Mihelyi : Yes, at that point in time. We also then looked at all the documents that we had. The request from the commissioner sought that we provide a schedule of documents to them, which we did. They asked questions where the investigation was still continuing, et cetera, and the scope of the investigation. We provided general information on that. That is important in that that was where the initial decision was made. We then looked at the documents we had and looked if there were any others that might fall within the scope of your request. Then we discovered some documents and then went through having them analysed in terms of how they fitted under the different elements of the FOI and whether there was a possibility of releasing subject to all of the different exemptions.
Senator ABETZ: So then the—
Mr Mihelyi : What we did was we responded to the commissioner, the OAIC, the person that corresponded with myself. We provided the list of documents and then subsequently when we heard back from them, which was quite a while later, we went through the process of producing the schedule and the documents that were released.
Senator ABETZ: And of course you had three goes at that. Who was responsible for that? Who is going to put their hand up for that?
Mr Mihelyi : I was coordinating that, yes.
Senator ABETZ: Because we had one lot of documents, then a second lot of documents, then a third lot of documents provided. Each time we were told, 'This is what you are entitled to.' How come we did not get the full lot in the first batch?
Mr Mihelyi : In the first batch, you got—
Senator ABETZ: I know what we got. But why was there this lack of thoroughness in ensuring that we got the whole batch in the one go and not being drip-fed?
Mr Mihelyi : Our error was that we did not in the schedule to you or your office say that there was one more lot to come. Which was the legal invoices—
Senator ABETZ: Yes, but then we got two lots, didn't we.
Mr Mihelyi : You got the substantive lot and we discovered there was a couple of pages missing, which we promptly got to your office upon us discovering it.
Senator ABETZ: Hopefully you do not conduct your inquiries and investigations in this sort of a relatively tardy manner, if I might say with respect. Can I ask, are there any documents that fall within our request that have not been identified?
Mr Mihelyi : We have got a request from the Information Commissioner which we received.
Senator ABETZ: Which is now the second intervention that we have had to use.
Mr Mihelyi : Correct. It is to do with some documents that were at the time identified to them as being totally exempt. We are just getting advice on that.
Senator ABETZ: But you see, why weren't those documents identified and the schedule provided to us with the explanation next to it, exempt for whatever reason? That is the normal way it happens, so that if you want to appeal about a document being exempted, you actually know what document you are appealing about. When you are starved of any information, it blocks any appeal, because you do not know what to appeal about, because you do not know what documents are being denied access to. Do you understand that?
Mr Mihelyi : Yes.
Senator ABETZ: Have you had previous freedom of information experience?
Mr Mihelyi : No.
Senator ABETZ: But you did, in fairness to you, seek the Australian Government Solicitor's advice.
Mr Mihelyi : Correct.
Senator ABETZ: Possibly they should be going to Corrs for FOI advice, Ms O'Neill. But I will leave that to you. Are you able to tell us now, how many documents fall into that schedule which you will be claiming are exempt?
Mr Mihelyi : There are two.
Senator ABETZ: Does that include the minutes that Ms O'Neill identified?
Ms O'Neill : Given that the current status is that the exemption has been claimed, it would not be appropriate to describe the detail of those documents until the exemption is—
Senator ABETZ: But Ms O'Neill, you read it out to us. You read it out to us.
Ms O'Neill : Yes, but I have not indicated what their status is in respect of the FOI application.
Senator ABETZ: Beg pardon?
Ms O'Neill : I have not identified or described the status of that document in respect of the FOI application.
Senator ABETZ: Yes, but you have read at least part of it out.
Ms O'Neill : I have read part of a document.
Senator ABETZ: Yes, and as part of the freedom of information process, rather than just exempting the whole document, the technical term, I understand, is redact: you put the old black pen felt through. If I might say, Fair Work Australia is well known to do that, because in the FOI request that I have received I have received pages like this, showing many lines deleted.
Senator BACK: Which makes a mockery.
Senator ABETZ: Which sort of makes a mockery; you are quite right, Senator Back. Why couldn't that document, of which you read a part, at least be provided and identified to us with all the other parts redacted or blacked out and the bit that you read out given to us?
Ms O'Neill : I am simply making the point. You are asking Mr Mihelyi questions around documents, which may or may not include the document that I have spoken about, in which an exemption currently applies. That has been considered, as I understand it, and a response will be provided.
Senator ABETZ: Undoubtedly a response will be provided and we will see how many weeks tick by, but the Corrs bills, are they part of those two documents that you have identified, Mr Mihelyi?
Mr Mihelyi : No.
Senator ABETZ: No. Any reason why the Corrs bills cannot be identified, given that we have identified accountants' bills?
Ms O'Neill : I indicated when you were asking me about this earlier this morning that I took that question on notice. But it may be that it is not included either for the reason that Senator Collins identified or I think as I indicated that it was outside the time frame. But I said I would take the question on notice.
Senator ABETZ: Can we anticipate a schedule of documents being provided in due course?
Mr Mihelyi : Yes.
Senator ABETZ: Yes? Thank you for that.
Senator RONALDSON: I have here a document released to my colleague under FOI which is the Health Services Union brief for Senate estimates on 23 February 2011. Of 76 lines in this document, 68 have been blacked out. Operation Sunlight—it would appear to me that the blinds have been well and truly drawn. In any event, on the last page of that document, there is a reference to amounts being billed to FWA by external parties which include Enmark Pty Ltd, accounting advisers, for $84,392.79, and then PKF Chartered Accountants' review of report findings. What were PKF Chartered Accountants reviewing? What report findings were they reviewing?
Mr Nassios : The PKF report would have been in relation to accounts dealing with the No 1 branch.
Senator RONALDSON: That was a report that you had prepared, and that they reviewed?
Mr Nassios : No. I had asked them for some accounting advice in relation to some of the statements that were lodged by the No 1 branch.
Senator RONALDSON: It says 'review of report findings', which does not sound much like what you have said. If the document is incorrect, that is fine, but it does not sound like the same thing to me.
Mr Nassios : I do not recall quite that far back, but certainly if I have put that—it would have been my memorandum that you are reading—it certainly would have been me saying I have reviewed whatever they have given to me.
Senator RONALDSON: Right. It was not findings so much as information?
Mr Nassios : Correct.
Senator RONALDSON: Given that you stated earlier on that you do not want to give evidence that might impugn someone's reputation, and given that Ms O'Neill in her opening statement talked about natural justice, and given that Mr Thomson's reputation is swinging at the moment in relation to whether he did or did not receive the document from you, can you please today clear Mr Thomson's name by confirming his denial that he received these documents?
Senator Jacinta Collins: This is the fourth time.
CHAIR: This is really just another attempt to get to the same thing that has been answered on many occasions now. Senator Abetz has indicated that he has a number of questions that will need to be asked which will go over time, and I am happy to accommodate that. But if we are just going to be repeating questions that have already been asked and answered then I am less inclined to assist in that process.
Senator ABETZ: Mr Nassios, can you confirm that Senator Ronaldson has not been written to?
Mr Nassios : That is an interesting question and I cannot recall ever instituting an investigation in relation to anything Senator Ronaldson has done, so without answering your question, I am not able to say whether he has or has not.
Senator ABETZ: If we were to go through the boring process of mentioning every member of parliament's name, we would come along to Mr Thomson's name.
Senator THISTLETHWAITE: Chair I think senator Abetz is being quite cynical trying to make a point about an issue which we already know the ruling on. Perhaps it might be worth while if they just move on, given that we are running out of time.
CHAIR: We will probably run out of time very quickly if you would like to go through a list of parliamentarians, Senator Abetz.
Senator ABETZ: I assure you I won't be. I think I have made the point that it seems okay for Fair Work Australia to rule out Senator Ronaldson, and I am pleased for him, but he has been ruled out. But if we can rule out individual names, and of parliamentarians, one wonders why one cannot rule out the individual name of another parliamentarian, the member for Dobell. I will leave it at that.
Ms Hughes, in relation to the email contact you had with the minister's office on 18 August, would you agree there was a degree of familiarity between yourself and the staff member? It is not as though you were emailing or talking to somebody you had never met before.
Ms Hughes : I had contact with Mr Davies before.
Senator ABETZ: On a fairly regular basis.
Ms Hughes : I would not say regular, no.
Senator ABETZ: It was so comfortable that he says:
'Seven claimed that FWA are investigating whether Craig lied to FWA. Is this correct?—
it says 'corrected' but I assume he meant correct—
or are they making it up?
Who is Craig in that email?
Ms Hughes : I assume that that meant Mr Thomson.
Senator ABETZ: It wasn't exactly a formal email. A formal email might have actually said 'Channel Seven are reporting something about the member for Dobell. Can you confirm?' Seven claimed FWA are investigating whether Craig lied. Then of course he showed the further sharing of his inner thoughts when he said, 'That's awesome'. Are you still saying to us that there was nothing further in your contact with this staffer in relation to the political imperative to try to get this off the front pages.
Ms Hughes : That is correct.
Senator ABETZ: Can somebody tell me why the then manager Mr Lee did not return the phone calls from the New South Wales Fraud Squad?
Ms O'Neill : Not specifically. As I understand it the calls were made and returned within 24 or 48 hours. As I understand it Mr Lee was not in the office on the particular day and returned the call within the next 24 hours or something to that effect. I will take that on notice and correct that if I am wrong.
Senator ABETZ: Do you know whether the telephone messages were passed on to Mr Lee?
Ms O'Neill : No. I would have to take that on notice.
Senator ABETZ: By taking it on notice, how will you get an answer to those questions? Will you be talking to Mr Lee?
Ms O'Neill : Possibly or his assistant who took the original call presumably.
Senator ABETZ: As I understand it there were a number of assistants, according to the good commander John Watson where on 24 August he emails the manager and says, in the first paragraph 'I am the Acting Commander New South Wales Police Fraud Squad. I have left messages throughout the day with both Mary Jane and Ailsa from your office requesting that you contact me'. Is that Ailsa Carruthers?
Ms O'Neill : I expect so.
Mr Nassios : We have no other Ailsa.
Senator ABETZ: That is a pretty good guess then. So we do not know why these messages were not passed on. It seems to me that most citizens, if they were to be rung by a commander of the Fraud Squad, might actually give that a degree of priority in one's day's activities and not just reduce the acting commander to sending an email where he is reduced to saying, 'I have left messages requesting that you contact me'. I have since been told by Kelly, a third person, the best way to contact you is to send an email letter attached. We do not know why this occurred?
Ms O'Neill : As I have said, I would be more comfortable taking that on notice.
Senator ABETZ: Did Mr Lee seek legal advice prior to talking with the Fraud Squad?
Ms O'Neill : I am not sure of the precise timing. I understand that legal advice was sought in relation to the correspondence that was received and sent.
Senator ABETZ: Are we able to be told whether or not the letter that Mr Lee wrote to the commander of the Fraud Squad was as per legal advice from the Australian Government Solicitor, or was it written by Mr Lee himself?
Ms O'Neill : I understand it was on the basis of legal advice. Whether there was any particular kind of deviation, I am not sure so I will take that on notice.
Senator ABETZ: We have this very old trick, I must say, and I dare say I may have played it once or twice while I was a lawyer, but it is pretty basic stuff. When the commander wrote to Mr Lee on 25 August he said:
As discussed in furtherance to the assessment being undertaken by New South Wales Police, I would like to propose a meeting with you to discuss certain matters of the Thomson matter.
Mr Lee responds to say that nothing in the relevant sections of the Fair Work (Registered Organisations) Act, or indeed elsewhere, confers any authority on me to inquire or investigate, reach a conclusion or refer a matter to a New South Wales law enforcement body.
Senator THISTLETHWAITE: Senator, are you saying that he did say that or that he did not say that in the email?
Senator ABETZ: That Mr Lee wrote that in his response to the commander and if that was not clear then thank you for giving me the opportunity to clear that up. The acting Commander of New South Wales Fraud Squad was only seeking to discuss certain matters. There was no request about whether or not the act confers any authority on him to investigate matters for and on behalf of the New South Wales Police Fraud Squad. What you have is the setting up of the straw man to be knocked down to say 'We cannot do this at all because I do not have power under the act', when in fact this is not what was being asked for. One wonders why Mr Lee set up that straw man to then come to the conclusion, I think, over the page in the second-last paragraph:
Accordingly I regret to advise that I do not consider it would be appropriate for me, or my staff, to meet with you to discuss Fair Work's investigations.
He comes to the conclusion that it is inappropriate on a premise that he was not even asked for by the Fraud Squad. One wonders why this pretext was set up to deny communication with the Fraud Squad when that was not the issue at stake. They just wanted to discuss matters. Can anybody shed any light as to why we got such a convoluted response from Mr Lee to a very simple request that they just wanted a discussion?
Ms O'Neill : I obviously cannot speak for Mr Lee but it would seem to me—
Senator ABETZ: That is why it would have been very handy for him to be present here today to answer questions but the Senate has decided on that, with Labor and Green numbers. I accept the result of that but it is regrettable.
Ms O'Neill : What I was just going to suggest was that it would seem to me to be an uncontroversial point that any statutory officer exercising powers and functions under legislation can only exercise those powers for the purposes prescribed by the legislation. It would seem to me that it would follow that it would be inappropriate to voluntarily disclose information obtained through the exercise of a statutory power or function in aid of some other unrelated exercise such as, in the case that you have identified, a New South Wales Police investigation.
Senator ABETZ: Ms O'Neill, if in auditing and looking through the books of a registered organisation—
take your pick—you became aware that an organisation had paid a hit man for a certain murder—
CHAIR: This is getting a little bit hypothetical.
Senator THISTLETHWAITE: Absolutely, it is hypothetical and unrelated.
Senator ABETZ: You would say that the Fair Work Australia personnel could not, by the legislation, refer that matter to the relevant police force in which the murder may have taken place. Is that what you are telling us?
Senator THISTLETHWAITE: That question is completely out of line, Chair. It is a completely irrelevant hypothetical question that the witness is not in a position to answer. I find it wasting the committee's time.
CHAIR: I think it is a difficult question to put to the officer, Senator Abetz.
Senator ABETZ: I agree it is a difficult question to put to Ms O'Neill, but it is only difficult because of her previous answer and that which Mr Lee tried to hide behind, suggesting that anything they stumble across in their investigations cannot be shared by another authority. Sure, the example I used was a stark one and a dramatic one, but it was done to make the point. Are we to believe therefore that if Ms O'Neill in investigations in Fair Work Australia comes across potential offences under any state or territory law, that Fair Work Australia would find themselves constrained not to pass that information on to a relevant law enforcement agency?
Ms O'Neill : No, and if that is the way my answer appeared that is not what I intended. As I have indicated, at the conclusion of an investigation the general manager has got a number of options, one of which includes referring conduct that is potentially criminal to the Commonwealth DPP.
Senator ABETZ: Only the Commonwealth DPP. So let us say your crime is under New South Wales state law, but not under the Commonwealth law? Is that what you are telling us, that you would not have the power to refer it?
Ms O'Neill : The express power regarding the actions available to the general manager under section 336 is, as I understand it, a reference to the Commonwealth DPP, but that is not to say that if in the course of the investigation there is conduct that may potentially be criminal under state laws that that cannot itself be referred to the Commonwealth DPP who, as I understand, in certain circumstances can action any such material.
Senator ABETZ: Could you please take that on notice and get some advice as to whether it is Fair Work Australia's view that it cannot refer matters of suspicion that it stumbles across to the relevant state or territory authorities? Because, if I might say, that is what one would hope any decent citizen would do under normal circumstances if they stumbled across criminal activity or evidence of such, that they would pass it on. Yet we are being told here that Fair Work Australia is somehow constrained in acting like any decent citizen. If that is the case, I think the Fair Work Act might be in need of some amendment. Quite frankly, reading it, I do not read it in that way. Let us move on.
CHAIR: Did you have anything else to say on that?
Ms O'Neill : No.
CHAIR: So you will take that on notice.
Senator ABETZ: Thank you, Chair. Mr Nassios, were you consulted about this letter of 26 August 2011 that Mr Lee wrote to the fraud squad?
Mr Nassios : Certainly I was in a meeting, or meetings, with him with the Australian Government Solicitor, yes.
Senator ABETZ: Were you in charge of the investigation?
Mr Nassios : Correct.
Senator ABETZ: So you would have been aware of whether or not you held any original HSU documents?
Mr Nassios : Yes.
Senator ABETZ: Why is it therefore that Mr Lee once again—it just beggars belief—responds to the acting Commander of the New South Wales Fraud Squad: 'We are currently reviewing whether Fair Work Australia holds any of the HSU's original records and will respond to you separately, shortly on this question.' You knew whether you had any original HSU documents. Why couldn't that have been disclosed immediately in Mr Lee's letter to the New South Wales Fraud Squad? Why the need for further ongoing delays?
Mr Nassios : Again, my recollection at the time is that, while we believed we had returned all of the material to the Health Services Union, the Health Services Union believed we had not, so we were undertaking the review that is indicated in that letter. There were many, many, many documents.
Senator ABETZ: But you were satisfied at the time that you were holding some original HSU documents?
Mr Nassios : I believed that we had returned all the documents while we had that initial meeting, or had those meetings. But we were going to check and ensure that if we did have any, we would return them.
Senator ABETZ: It just seems that at every step of the way the least information possible is divulged by Fair Work Australia, be it to myself, be it to the acting Commander, be it to the Senate Committee. At every step of the way you have got to drag the information out of Fair Work Australia, and one just wonders why that has to be. Can I ask you, Mr Nassios, how often did Mr Lee sit in on legal briefings with the Australian Government Solicitor?
Mr Nassios : There were regular meetings—I am not exactly certain of their title—held every Thursday.
Senator ABETZ: And Mr Lee was there?
Mr Nassios : Yes.
Senator ABETZ: But he had delegated authority to you, had he not?
Mr Nassios : Correct.
Senator ABETZ: But Mr Lee was still sitting in on all of those meetings?
Mr Nassios : These meetings commenced, and again my recollection is about March or April of last year. I do not recall the specific, if I may call them 'terms of reference', but I understand those terms are with Ms O'Neill.
Ms O'Neill : I might just assist there. The former general manager commenced scheduling regular meetings, which were usually weekly, with Mr Nassios, with the FWA staff involved in the investigations, and the AGS, to track the progress of the investigation from 10 March 2011. From the minutes, those meetings were established for the following purposes: firstly, keeping the general manager appraised of key developments in the investigation that impact upon his ability to exercise powers under section 336(2) of the Registered Organisations Act—they are the general manager's powers that cannot be delegated; to allow the general manager to determine the approach on key matters that relate to his ability to exercise those powers; thirdly, to avoid a situation where, and I am quoting, 'significant chunks of information go into the public arena with the potential of appearing, e.g., to place public pressure upon the outcome that is expected from FWA'; and, fourthly, to maintain the integrity of the process.
Senator ABETZ: Possibly that is another document that you might like to consider discovering to us under the Freedom of Information request. This is like drawing teeth. This is unbelievable. We are told that Mr Lee sat in on meetings in 2011. He also sat in on meetings, did he not, in 2009?
Mr Nassios : As part of the normal reporting to my manager, every now and then we would have as an item of discussion in those meetings the progress of the investigation.
Senator ABETZ: Mr Lee was sitting in at the very early stages and right up until he left?
Mr Nassios : 'Sitting in' is a term that is very broad.
Senator ABETZ: Was he physically present?
Mr Nassios : He was present for some discussions that I clearly had with him in terms of a supervisor. There is no doubt about that. In terms of these other meetings that we are talking about, yes, these were meetings that he sat in. There were aspects of those meetings that were not related to Mr Lee, so to the extent that the AGS person was on the premises to assist me, for example, Mr Lee would not be at that part of the meeting.
Senator ABETZ: But very early on, did you attend in—when did Mr Lee become the general manager?
Mr Nassios : July 2009, I think.
Senator ABETZ: July 2009. In July 2009, did he sit in on Australia Government Solicitor meetings with you?
Mr Nassios : I do not believe so. They were not established at that time.
Senator ABETZ: Sorry, what weren't?
Mr Nassios : The meetings that I am referring to.
Senator ABETZ: I know about those meetings, but other meetings.
Mr Nassios : I have no recollection of him attending any.
Senator ABETZ: But you would not deny it?
Mr Nassios : Well, it is possible.
Senator ABETZ: It is possible.
Senator Jacinta Collins: Would you like him to take it on notice?
Senator ABETZ: I am just going through these bills because I will undoubtedly find it in due course. Now, was Mr Lee specifically told by the Australia Government Solicitor that he could not talk with the NSW Police?
Ms O'Neill : I would have to take that on notice, Senator, I do not know.
Senator ABETZ: Where will you find that out?
Ms O'Neill : Either from the Australia Government Solicitor or Mr Lee, I anticipate.
Senator ABETZ: Right. How many of these weekly meetings have there been, Mr Nassios?
Mr Nassios : I could not tell you exactly but they started from March 2011. There obviously would have been individual weeks where we would not have met for one reason or another, but I would have to do a rough arithmetic at the moment.
Senator ABETZ: Wait a minute. Are they weekly meetings or not?
Mr Nassios : Weekly meetings, yes, except there would be weeks where clearly it was just not possible to have a meeting for absences, et cetera.
Senator ABETZ: So, was it fortnightly?
Ms O'Neill : It might be more helpful, Senator, to take that on notice and then we can—
Senator ABETZ: We have only had twelve weekly meetings discovered to us under the Freedom of Information Act, so I just trust there are not more weekly meetings that have not been disclosed to us. Can I ask you, Ms O'Neill, to take this on notice, but as I understand it senior Commonwealth officials are obliged to refer any material information about a possible crime that you come across in your official duties. Is that something that you are aware of?
Ms O'Neill : It does not readily come to mind, Senator. Was there a question?
Senator ABETZ: That is a concern given the investigative role that Fair Work Australia has, but take that on notice please and come back to us.
Ms O'Neill : Yes.
Senator RONALDSON: Mr Nassios, if I can go back to this brief for Senate estimates on 23 February. Enmark Pty Ltd, I presume that had already been completed. In fact, their report I presume had been received by you presumably late 2010 or during 2010 at some stage because the bill had already been paid?
Mr Nassios : Enmark is an individual who I sought to assist me in an interview of the auditor of both reporting units. I do not recall if he actually prepared a specific report.
Senator RONALDSON: How many meetings did he have with the auditors?
Mr Nassios : Well, no, Senator, and I apologise if I appear to have given an indication of who I may have interviewed, but I am saying he assisted me in interviews.
Senator RONALDSON: He assisted you?
Mr Nassios : Yes, in conducting an interview.
Senator RONALDSON: How many times did he assist you?
Mr Nassios : I believe it would have been once.
Senator RONALDSON: Once. And the bill was for $84,392.79. They must have done other work for you as well.
Mr Nassios : That cannot be the figure for that. I will have to take that on notice.
Senator RONALDSON: Enmark Pty Ltd accounting advises $84,392.79 and you say that he sat in on one meeting?
Mr Nassios : I certainly recall him sitting in on one; I will have to go back and see whether he has assisted with looking at the returns of the No. 1 branch. I do not have a specific recollection of it but if that figure is of $84,000 it would have entailed that assistance.
Senator RONALDSON: Are Enmark and PKF purely in relation to No. 1 or are they also in relation to any financial matters involving the national branch?
Mr Nassios : My recollection is predominantly No. 1. No. 1 was dealing in relation to the actual returns lodged. As you know the returns by the national office were not returned until August of last year.
Senator RONALDSON: Who else would have been involved in investigating the financial matters of both of these investigations?
Mr Nassios : No further accountants.
Senator RONALDSON: All matters in relation to the finances of No. 1 and the national office had been completed by, at the latest, January 2011?
Mr Nassios : Yes, that is my recollection.
Senator RONALDSON: Given that the financial matters were finalised over 14 months ago, what other parts of the investigation have taken this amount of time and what initiated that? If there was any extension of the inquiry, what initiated that? Were the defamation proceedings for example matters that triggered further investigation? We acknowledge that the financial stuff was finished 14 months ago. I would like to know what other parts of your investigation have taken some 13 or 14 months?
Mr Nassios : I need to make it clear, this is in relation to No. 1 branch. You are asking me in relation to No. 1?
Senator RONALDSON: No. I asked you whether the financial investigations in relation to No. 1 and the national office were completed in January 2011 and you said it was both.
Mr Nassios : I presumed you were asking me in relation to the accountants that I had sought the services of.
Senator RONALDSON: The financial investigation had been finalised by January 2011 is what you said. Is that not correct?
Mr Nassios : Let me clarify. When I meant the financial I mean the actual services that the accounting persons have provided to me in relation to predominantly the No. 1 branch.
Senator RONALDSON: You personally would not have been conducting any further investigations in relation to the financial matters surrounding these two organisations, would you?
Mr Nassios : The distinction I am drawing is that in the case of the No. 1 branch, we actually had financial returns to examine. In the case of the national office, those returns were only received in August of last year. That is the distinction I am drawing.
Senator RONALDSON: What financial investigation had taken place in relation to the national office since August last year and how much has been expended in obtaining any advice in relation to those financials?
Mr Nassios : We have expended no accounting services since August of last year?
Senator RONALDSON: Okay. So effectively from January 2011 all investigations in relation to the financials of both the national office and the No. 1 branch were finalised?
Mr Nassios : Senator again, the distinction I am not making clear is this. The financial statement is what I am referring to. There were no financial statements of the national office until August of last year. I am not sure how to answer your question.
Senator RONALDSON: Have you had an independent assessment of the financials that were lodged in August of last year?
Mr Nassios : As part of the investigation we are looking at those, yes, but not an independent examination.
Senator RONALDSON: So you are still looking at those?
Mr Nassios : As part of the way Fair Work Australia operates in terms of looking at financial statements, we will look at those financial statements to see if they comply with the legislation.
Senator RONALDSON: So you made the decision clearly that they will not form part of your investigation and that they are unrelated because the investigation is finished. Is that what you are saying?
Mr Nassios : The evidence gathering phase has finished. That is what has finished.
Senator RONALDSON: Are there any matters in these notices that have been sent out relating to financial information provided by the national office in August last year?
Mr Nassios : That goes to the substance of the investigation. I am not able to comment on that.
Senator RONALDSON: I am not asking you what the details were. I am asking you whether in August last year there was information provided that has formed part of these notices that you have sent out. I cannot for the life of me see how that could possibly interfere with the investigation—that the interview and other parts of which we have been told are already finished.
CHAIR: Nonetheless, Mr Nassios has given you an answer.
Senator ABETZ: Mr Nassios, if a response comes back as is potentially the case with new information contained therein, will you be checking up on that to ascertain its veracity?
Mr Nassios : You would expect so, yes.
Senator ABETZ: So how can you say the investigation is finished and you are just waiting on people to respond?
Mr Nassios : As I have indicated, the gathering of evidence has completed. That gathering had to have occurred otherwise I would not be in a position to actually write anything.
Senator ABETZ: Of course; there is no criticism of that. How can you assert here that the gathering of information has ceased because a response from one of the five of whom we know and three we are not allowed to be told of, might provide you with an excuse, a reason or new information which might actually require collection of further documents or collection of further information or a new avenue of inquiry. That is quite possible, is it not?
Mr Nassios : I could not rule it out.
Senator ABETZ: So why did you rule it out before saying that the investigation has finished?
Mr Nassios : I have referred to the gathering of evidence. The gathering of evidence needed to be completed. If I had not concluded the gathering of evidence I in fact would be drafting a report and possible contraventions on evidence that is not thorough and complete.
Senator ABETZ: Yes, I fully agree with that. If no information comes to light in the responses, you may well need to embark upon a new round of investigations to ascertain the veracity of those responses.
Mr Nassios : I could not rule that out but I do not expect that to be the case.
Senator RONALDSON: On 5 March when the extension timetable expires, what action will you be taking if that material you have requested has not been received?
Mr Nassios : I will complete the report in the absence of that response.
Senator RONALDSON: Right.
Senator ABETZ: Why was such a lengthy period of time provided to allow people to respond?
Mr Nassios : Ms O'Neill has indicated that in her answer. From my perspective the quantity of material was of such a large volume that in the interests of fairness it required such a period.
Senator ABETZ: Alright. Did everybody get 6,500 pages of material?
Mr Nassios : No.
Senator ABETZ: No. Did only one person get 6,500 pages of material?
Mr Nassios : The total is in 6,500.
Senator ABETZ: So what is the most number of pages that anybody was sent?
Mr Nassios : I do not have that off the top of my head.
Senator ABETZ: Roughly.
Mr Nassios : I could not even tell you roughly. It would be in the thousands but that is as close as I could get. Certainly in terms of the person who has been given the latest date, it is fair to assume that they have been given the greatest quantity of material.
Senator ABETZ: Right.
CHAIR: I note at this point that we are now 35 minutes over the scheduled finishing time for Fair Work Australia. We do need to start winding up very soon.
Senator ABETZ: Yes, we are. Can you take on notice why Mr Lee attended legal briefings? Is it correct that we have agreed to that?
Ms O'Neill : Yes.
Senator ABETZ: And how many and the dates. That would be very helpful. Are we able to be told in rough terms the variation in the number of pages with the five people? For example was one person only sent a couple of pages or did they all receive thousands of pages?
Mr Nassios : Can I take that on notice? I do not know the answer off the top of my head.
Senator ABETZ: Who signed the letters?
Mr Nassios : I did.
Senator ABETZ: Mr Nassios surely you must know. I do not want an exact figure because I can understand you would not know but we all know how thick a ream of paper is. Was it roughly one ream, two reams or a dozen reams sent to each of the individuals? You surely must have some idea.
Mr Nassios : I would be guessing. I can tell you that one was substantially less than the others, and I can tell you one is substantially greater—but in terms of indicating to you a number, I would simply be guessing.
Senator ABETZ: There is nothing wrong with you having an educated guess and then taking on notice the exact figure. I would invite you to take it on notice for the five, without mentioning their names. How many pages were sent to the five individuals? You must know whether one person was sent let us say one ream of paper as opposed to 12 reams of paper.
Mr Nassios : Reams of paper do not necessarily mean much to me but I say to you—
Senator ABETZ: Have you ever filled a photocopier, Mr Nassios?
Mr Nassios : It has been a considerable period of time since I have had that responsibility.
Senator ABETZ: Yes, but have you ever done it?
Mr Nassios : Yes.
Senator ABETZ: Yes, and you would have undoubtedly unpacked a ream of paper to do so.
Mr Nassios : Correct. I have no idea—
Senator ABETZ: Yes but you did not operate Gestetners in those days. You do know how many pages in a ream.
Mr Nassios : There are 500 pages in a ream.
Senator ABETZ: So we know what we are talking about, Mr Nassios.
Mr Nassios : Yes.
Senator ABETZ: So why do you have difficulty? Here we go again in even having a difficulty in acknowledging that you know how big a ream of paper is.
CHAIR: I think Mr Nassios has given you a rough estimate before. We need to move on.
Senator ABETZ: Mr Nassios cannot tell us whether, in relation to the five people, he sent them one ream of paper equalling about 500 pages or 12 reams of paper equalling 6,000 pages. In relation to any of the five he cannot. That is on the record.
CHAIR: What is on the record is that Mr Nassios has taken the question on notice.
Senator RONALDSON: Ms O'Neill, you have given us advice in relation to the delegate's report in relation to the No. 1 branch. I assume in relation to the delegate's report in relation to the national office that again, as long as there is not going to be any defamation proceedings taken against you, you will release it under FOI or will release it to this committee on request?
Ms O'Neill : The difficulty is answering the question and giving a commitment such as that in the abstract. I would seek advice on that once provided with a report.
Senator RONALDSON: Unless there is not going to be a report. It is not abstract is it—presumably there is going to be a report.
Ms O'Neill : No, but there maybe other issues in the content of the report that go beyond the issue of defamation that has arisen in the No. 1 report.
Senator ABETZ: Did Mr Lee ultimately talk with the New South Wales Fraud Squad?
Ms O'Neill : I would have to take that on notice. I do not know.
Senator ABETZ: Mr Nassios, are you aware of that?
Mr Nassios : I do not know.
Senator ABETZ: You were the delegates; you were the ones with control of the documents we were talking about and your evidence is that you do not know?
Mr Nassios : I do not know whether the general manager spoke to the New South Wales police.
Senator ABETZ: Were you ever involved in a meeting yourself, Mr Nassios, with the New South Wales Fraud Squad?
Mr Nassios : No, Senator.
Senator RONALDSON: Given that you were the chief investigator, would you have expected to have been involved in a meeting between Mr Lee and the fraud squad if it had been arranged?
Mr Nassios : No, Senator.
Senator RONALDSON: You would not?
Mr Nassios : No.
Senator RONALDSON: Did Mr Lee conduct this inquiry outside of what you were doing?
Mr Nassios : Senator, my role as I saw it—and I believe I strongly stuck to it—is that I was independently conducting the investigation. Anything outside that was someone else's responsibility.
Senator RONALDSON: You say you would not expect to have been involved in a meeting between Mr Lee and the fraud squad in relation to the matter that you were inquiring into and were the lead investigator?
Mr Nassios : No, I did not say I would not. What I said was that I would not expect to be consulted on whether that should be the case. That was a decision for someone else to make.
Senator RONALDSON: If it had taken place, you would have expected to have been involved?
Mr Nassios : I would have expected to have been in the room, yes.
Senator RONALDSON: Yes. So we are assuming that it did not take place then.
CHAIR: You can make any assumption you like. Mr Nassios has already answered the question.
Senator Jacinta Collins: He has taken it on notice to ascertain the facts, rather than making assumptions.
Senator ABETZ: Just to clear up a few things. Mr Milhelyi, we think there are only two documents that will be appearing on that schedule, or would you like to consider after today's discussions that there may be more?
Mr Milhelyi : We will have a look after today's discussions.
Senator ABETZ: Very wise answer. Fair Work Australia put out a statement on 27 January 2012, Ms Hughes, above your name. In that release, fifth paragraph down, we were told that letters of findings of possible contraventions were sent on particular dates. These letters and supporting material total more than 6,500 pages. Am I to read that the five letters plus all the supporting documentation for each of them in total reached 6,500 pages?
Mr Nassios : Correct.
Senator ABETZ: If you were to divide that by five, in rough terms everybody got only about 1,200 or 1,300 pages?
Mr Nassios : Senator, if you are doing an arithmetical calculation you are correct.
Senator ABETZ: Yes, because the impression that was clearly given to me and others was that every letter had attached to it about 6,500 pages that people had to go through and clearly that is not the case. I am not saying that was put out there deliberately, I just want to clarify it in my own mind that the task people had in responding was not to 6,500 pages. Was anybody sent all the documents?
Mr Nassios : I would have to say no to that but I would have to take it on notice.
Senator ABETZ: Thank you.
Mr Nassios : My apologies. One person could not have got 6,500 because then four others would have got nothing.
Senator ABETZ: Exactly.
Mr Nassios : So if that is the question you are asking, the answer is no.
Senator ABETZ: Yes. It stands to reason that some would have got more than the average and some less than the average. I was just trying to get a handle on the exact figure. Has Fair Work Australia briefed any other accountants; other than the ones we have been told about?
Mr Nassios : In relation to the investigation, or in relation to anything?
Senator ABETZ: That is about the only thing we have been talking about all morning, Mr Nassios.
Mr Nassios : No, Senator.
Senator ABETZ: In relation to the time to respond—and I have always touched on it but never got right down to it—did you seek separate legal advice in relation to the time that should be granted to people to respond?
Mr Nassios : As part of the ongoing investigation the AGS were certainly assisting me during the whole investigation. As part of the conversations, at the time of finalising the letters we would have discussed issues in relation to how long persons ought to be given in the interests of fairness, yes.
Senator ABETZ: It seems an inordinately long time to respond. Back in the dark days I recall Supreme Court writs with a statement of claim had to be responded to within 21 days. Family law affidavits, dealing with very complex issues of children or property matters, had to be responded to within a shorter period of time. I am just wondering where this figure of 10 weeks has come from.
Mr Nassios : It is the time that I felt was fair. I think, as we have indicated, extensions of time were sought by three persons and I gave a limited extension in the case of two of them. The other person, I gave them the extension they sought.
Senator ABETZ: Has Fair Work Australia in relation to this matter engaged any consultants? To deal with media, to deal with—we now know calls are in there. We know there are not any accountants. But in relation to anything else in relation to this matter?
Mr Nassios : I have not, but as I have said—
Senator ABETZ: Manager, have you?
Ms O'Neill : No, Senator.
Senator ABETZ: No? All right. Can I ask in relation to the information you sent out, was there much variation in the materials? And by that I mean the information contained. Was somebody just sent a couple of receipts and asked to explain or was the more substantive materials sent to some as opposed to others?
Mr Nassios : I am trying to answer your question as best I can. I have to say, the material that was sent to people was the material that they were required to respond on. The issues were not the same for every single individual.
Senator ABETZ: So, the nature of the attachments may well have varied?
Mr Nassios : Yes. Certainly to some extent, yes.
Senator Jacinta Collins: The nature of the attachments may have involved some duplication also.
Senator ABETZ: Ms O'Neill, have you received much correspondence from citizens of Australia expressing concern as to the length of this inquiry?
Ms O'Neill : Yes.
Senator ABETZ: Are you able to tell us how many?
Ms O'Neill : No, I would have to take that on notice.
CHAIR: Senator Abetz, I am conscious of the time.
Senator ABETZ: Yes, all right. I conclude by asking the president whether he believes Fair Work Australia's reputation has not been assisted by the HSU inquiry?
Mr Guidice : I do not really have a view on that, Senator. It is very difficult to judge these things unless you know the circumstances. Unless I were in the position of Mr Nassios to know all of the issues and all of the things that have to be deal with, the legal advice I would find it very hard to judge.
Senator ABETZ: What about you, Ms O'Neill? As the manager?
Ms O'Neill : I have indicated that on the face of it investigations have taken a long time and that I have decided to—
Senator ABETZ: In fact, an unreasonably long time.
Ms O'Neill : On the face of it. There may be very good reasons for that. But I think it is an appropriate time to undertake an independent review, as I have indicated to you earlier.
Senator ABETZ: But you say 'on the face of it'. I would have thought nobody would be closer to the fact and the circumstances of this matter than the manager.
Ms O'Neill : The delegate, obviously.
Senator ABETZ: All right, apart from the delegate. You would be the second closest, would you not, to be able to make a judgment whether or not this has been taking an unreasonably long time?
Ms O'Neill : I think there are very legitimate questions to be asked and they will be considered.
Senator ABETZ: Thank you, Chair. Thank you to the committee for its forbearance in relation to this matter. It has been a very important issue.
Senator FISHER: In view of the president's retirement from the position, are there functions planned, ceremonies planned or gatherings planned to farewell him?
Ms O'Neill : Yes, there are.
Senator FISHER: What are those?
Ms O'Neill : I might take the detail on notice. There is a ceremonial sitting and some informal internal functions.
Senator FISHER: What is the detail around the ceremonial sitting?
Ms O'Neill : I will take that on notice, unless you have got a particular—
Senator FISHER: Who is invited to it and who do you expect to attend?
Ms O'Neill : I am not close enough to it. I would need to take that on notice.
Senator FISHER: You are not arranging it.
Ms O'Neill : No, I am not.
Senator FISHER: I would like to know the number of attendees and whether they are commissioners or external parties as well.
Ms O'Neill : I will take that on notice.
Senator FISHER: Thank you.
CHAIR: On behalf of the committee and as chair of the committee I would like to acknowledge Justice Guidice and his long and esteemed public service and commitment, particularly to what I used to know as the Arbitration Commission and we now know as Fair Work Australia. We do acknowledge some of the difficult circumstances and some of the concerns that you had in your appearance today. They are certainly acknowledged and I acknowledge that that was a very difficult period for many people involved. But I do want to thank you for your contribution to this committee. I think the committee may write to you shortly. We will probably not going to have a lot of time to say much more than that. We, on behalf of the committee, thank you.
Mr Guidice : Thank you, Chair.
Senator ABETZ: That is an appropriate book ending, if I might say. I started off and you completed this section of questioning by paying tribute to the president.
Mr Guidice : Thank you.
Senator Jacinta Collins: Chair, I should add on behalf of the government and myself similar comments, but I am sure the minister will take that opportunity. I have worked directly with the president, not only through this committee but also in other matters. I certainly appreciate his contribution and wish him well in retirement.
CHAIR: On that basis, we will now suspend for an early lunch break and resume at 1:20. Thank you.
Proceedings suspended from 12:18 to 13 : 20