Mr Val Gostencnik who gave legal advice on how not to refer Thomson to police and his brilliant career
Thursday, 07 November 2013
This is the remarkable Mr Val Gostencnik
On 28 March 2013 Bill Shorten appointed Mr Gostencnik as a Fair Work Commissioner.
Mr Gostencnik is a highly experienced workplace relations lawyer. He has been a Partner at Corrs Chambers Westgarth since 2001 and was earlier a Partner at Ryan Carlisle Thomas. He leads the Workplace Relations practice group at Corrs as its National Practice Group Leader and has also been the National Pro Bono Partner since 2003.
On 12 July 2013 Shorten promoted him to Director of Fair Work Building and Construction.
Minister for Workplace Relations Bill Shorten appointed me to the position on 12 July 2013 and I started work last week.
By way of background, I come to this role with 30 years’ workplace relations experience in both government and private practice. As partner and Leader of Corrs Chambers Westgarth’s National Workplace Practice Group, I have acted for major construction companies including Multiplex, Downer EDI, Theiss and Transfield Services. I also spent time as Head of Legal and Employee Relations for a national construction company and was chair of the Victorian Government’s Building Industry Consultative Council.
I advised the Government on the drafting and implementation of the Fair Work Act 2009, and before that on aspects of the Building and Construction Industry Improvement Act 2005. At Corrs I was particularly passionate about its Pro Bono and social responsibility program.
On 24 September 2013 (with change of government) Mr Gostencnik resigned as boss of Fair Work Building and Construction but he remains a Commissioner of Fair Work Australia.
From the above biography we know that Mr Gostencnik assisted the then government with drafting the Fair Work Act 2009 - Ms Gillard's centrepiece legislation.
He must have maintained a very close association.
On 24 August 2011 Kathy Jackson announced that the HSU was lodging a complaint with NSW Police alleging embezzlement of HSU members' money by Craig Thomson.
24 August 2011 and again on 25 August 2011 NSW Police Fraud Squad wrote to Fair Work Australia's GM Tim Lee seeking FWA's cooperation - in the first instance just a meeting.
That same day Craig Rawson from the Australian Government Solicitor's office did 6 hours work for FWA with this billing notation:
On 25 August 2011 Tim Lee chaired the FWA "HSU Strategy Meeting"
The meeting minutes record that TL (Tim Lee) asked CR (Craig Rawson) to prepare a letter to the NSW fraud squad and to settle that letter with Val Gostencnik of Corrs Chambers Westgarth.
Note the instruction to "settle that letter" with Val Gostencnik came from Tim Lee, the FWA GM to the Australian Government Solicitor's lawyer Mr Rawson.
The minutes also record
TL tabled a letter from Kathy Jackson to Commissioner Andrew Scipione, NSW Commissioner of Police, which was forwarded by the HSU to FWA and in which Ms Jackson encourages NSW Police to contact FWA regarding any of the 'Union's relevant documents' that FWA may hold. CR advised that this letter would constitute authority for FWA to release HSU documents to NSW Police.
We know that Kathy Jackson had lodged 4 boxes of credit card, mobile phone and other records with FWA. Craig Rawson gave legal advice that Ms Jackson's letter to the NSW Police Commissioner gave FWA authority to release the documents - but Mr Lee instructed Mr Rawson to prepare a letter to NSW "settled with Val Gostencnik of Corrs Chambers Westgarth" and in that letter Mr Lee sets out why he refuses to cooperate with police.
No documents went to police. The minutes also record two different contacts between GM Tim Lee and the Minister's office at that time.
In this 15 March 2012 FOI release of the minutes of that meeting you will note that the reference to Val Gostencnik of Corrs Chambers Westgarth has been redacted.
It wasn't until March 2013 that a review of FOI applications was finalised that the details regarding Mr Gostencnik were unredacted and thus this reporting of his role here is relatively new.
On 26 August 2011 Craig Rawson spent 6 hours 30 minutes at a cost of $3,120 "Preparing correspondence to NSW Police responding to request for information and meeting - discussing draft correspondence with Val Gostencnik of Corrs and Tim Lee (two attendances) and making revisions to same".
This extract from the Australian Government Solicitor bill to FWA refers.
The letter to NSW Police is here.
During the subsequent months the Gillard Government and its ministers repeated the line that the Fair Work Australia investigation was independent and had no government interference and no forewarning to government of the direction it was taking.
Keep in mind that the FWA Report on Thomson was not released to the Senate Committee or the public until 7 May, 2012. The PM and her ministers stated before that time that FWA was independent of government and the release of the report was a matter for FWA.
On 3 April, 2012 Bernadette O'Neill sent the FWA Report on Thomson and other documents to Val Gostencnik of Corrs.
On 12 April, 2012, Minister Bill Shorten retained Mr Gostencnik of Corrs Chambers Westgarth to act for him in Federal Court Proceedings against the HSU and in particular Kathy Jackson.
Was there any discussion with the Prime Minister's office by Minister Shorten's office
prior to this intervention?
The Minister’s office informed the Prime Minister’s office of developments relating to the intervention in the Federal Court proceedings.
When was legal advice obtained in relation to this intervention and from whom was it
obtained?
Corrs Chambers Westgarth were engaged to provide advice and act for the Minister in relation to this matter on 12 April 2012.
On 30 April 2012 Minister Bill Shorten made an Application to the Federal Court of Australia for the appointment of an Administrator to the Health Services Union. Val Gostencnik of Corrs acted for him and provided detailed affidavit evidence on behalf of Minister Shorten in the originating application.
No one knew what was in the FWA Report and no one therefore could have publicly acted on it. It was confidential to FWA, the affected persons who were given time to respond and to their legal advisers. Police were not given access to the report.
How then to explain the conflict of interest in Mr Gostencnik advising the government on the drafting of the legislation, then providing legal advice to the independent GM of FWA as to avoiding cooperation with NSW Police (when the internal AGS lawyer had already advised that FWA had legal authority to release the documents sought by police), then accepting an advance copy of the FWA Report from the independent body FWA while simultaneously acting for the Minister Bill Shorten in his application to have an Administrator appointed to the HSU.
On 29 April 2012, one day before Bill Shorten's Application to have an Administrator appointed and 8 days before the release of the FWA Report into Thomson, Julia Gillard decided that a "line had been crossed" and she asked Thomson to quit the party.
'A line has been crossed': Gillard acts on Thomson and Slipper
Prime Minister Julia Gillard has asked embattled Labor backbencher Craig Thomson to quit the party and move to the cross-bench.
"I do believe a line has been crossed here and because a line has been crossed, I have acted".
Ms Gillard said she spoke to Mr Thomson last night after returning from overseas.
"I indicated to Mr Thomson I have decided it’s appropriate for him to no longer participate in the Labor caucus," she said.
Ms Gillard said it had been her call to ask Mr Thomson to quit the party, and she had not consulted cabinet about the issue. She said Mr Thomson had told her he'd been reflecting deeply on his position and felt moving to the cross-bench was the best course of action.
On 29 May 2013 Senator Abetz asked whether Minister Shorten's Department was aware of the contents of the FWA Report prior to its public release.
Answer
The Department did not have any information or any knowledge, other than what was
reported in the media, of the allegations about the Health Services Union prior to the
release of the Fair Work Australia report.
On 2 April 2013 Aaron Patrick revealed even more in the Australian Financial Review newspaper.
One new member of the commission (FWA), Val Gostencnik, was a partner at Corrs Chambers Westgarth, who represented Shorten in a legal fight last year for control of the HSU. When Jackson accused Shorten of physically confronting her at an internal Labor Party vote, Gostencnik threatened to sue media outlets on behalf of Shorten, including The Australian Financial Review, that published the allegation. Shorten strongly denied the accusation.
Val got appointed to FWA as a Commissioner.
What a nest of vipers.