I set out a fair bit of the process that led to Val Gostencnik recommending KPMG for the external review here.

We'll go back to the start, with the announcement of an external review at Senate Estimates where you've got to have something to say.   Otherwise you look stupid.   Ms O'Neill made the announcement unburdened by details like a contract with KPMG.   She added to KPMG's delight with small touches like saying FWA would pay KPMG to scope out how much KPMG should get paid - that's the "Scoping Study".   There is no joy like the professional services firm joy at acquiring a client like FWA which puts money second.   Having announced the review and giving the gig to KPMG, FWA could use the next couple of months at leisure to go down the post office box and pick up the bills for whatever KPMG wanted to charge.

15 February 2012 FWA GM Bernadette O'Neill fronted the Senate Estimates Committee.

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.

Let's knock that issue of withholding of resources out of the way now.   The following extract from the KPMG Report confirms that resources were withdrawn.  It also confirms the mind-boggling fact that no one started the credit card statement analysis until September 2011.   Even the newspapers had details in April 2009.

The Primary Legal Adviser is Craig Rawson, the good guy from the Australian Government Solicitor who went to every meeting and did his duty, which was to give proper legal advice.   Thank goodness someone was doing it.

There's a fair bit of code, or spin where KPMG paraphrases what Craig Rawson was saying.  Rawson the lawyer says that he was concerned when Fair Work Australia announced it would not renew the external accountant's contract and he raised his concerns with Nassios.   The last sentence of the KPMG report says that Rawson;

explained that he believed this to be a potential issue from an efficiency point of view.

The language is curious because it avoids saying what is obvious and logical.  Take away the specialist resource and the job will take longer.   The report will be delayed because of, to quote Ms O'Neill, "the withholding of resources".

The report looked at things like this but found no hint of intereference.   If there's doubt as to the logical purity of that finding, then it's reasonable to ask whose interests are served by it, then you'd look at who paid for the report and ask are the interests of the funders of the report served by any illogical findings they have purchased.   If the Gillard Government's interests were being served, the KPMG report would acknowledge the delays but attribute them solely to reasons that could not be linked to the government.   Delay because of withdrawal of resources bad, delay that chucks a few FWA staffers under the bus for incompetence good - as long as it doesn't point up to the GM it's good.

So there's an insight into the mindset of whoever crafted the KPMG writing.   Rawson wouldn't shut up, he diligently told the truth, the external accountant resource was withdrawn.  The report is silent on who made that decision and the fact of the decision and KPMG's neglect in not pursuing it speak volumes.

Doug Williams, the former Industrial Registrar engaged The External Accountant right at the start.The accountant was highly regarded and made a strong contribution to the investigation.   But he apparently wasn't on-song with Fair Work Australia's new regime so his contract was not renewed.

It is unsatisfactory that KPMG's report does not pursue to its conlusion enquiries about who made the decision not to renew the contract.   The External Accountant was available to do the work and made himself available for interview with KPMG.

In the context of KPMG's report which couldn't find a skerrick of interference anywhere this statement from The External Accountant about interference is insightful.

Back to the day of the announcement and Ms O'Neill's Senate Estimates grilling continued.

She was asked about findings in the two HSU reviews against individuals or organisations.

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.

So FWA had a government solicitor there from the very start, hearing all the evidence, creating the investigation plans, setting out what questions to ask of whom so as to meet the points of proof of various offence provisions.   Then when the GM has a duty to fully inform herself as to who gets pinged for what offence, where does she go?   To the former HSU Union Rep Val Gostencnik who unlike the Australian Government Solicitor has no conflict of interest in helping out by deciding who gets pinged for what.

Senate Estimates moved on to the issue of the invisible offender.   No names no pack drill.

Ms O'Neill explained that FWA would not tell the Senate Estimates Committee, nor release to the public at any stage the name of the person of interest in the HSU national branch enquiry.

Police charge people every day, the convention holds that a person is named in those circumstances without breaching any privacy act provisions.  Ms O'Neill went out of her way to make sure that the name Craig Thomson was never formally connected with the enquiry in any public statement by FWA and FWA did not at any time release the report naming Thomson to the public.   It was released by this Senate Committee months later.   This is an important issue, so here are the answers as to where the advice not to name Thomson came from.

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.

Here are some of the inconsistencies arising from those first few minutes of Senate Estimates.

In justifying the appointment of an external reviewer, Ms O'Neill said, "I acknowledge that on the face of it the inquiries and subsequent investigations have taken an unreasonably long time, raising legitimate questions".

A few minutes later Nassios says it's all been hunky dory, wasn't long at all. 

But this next piece of logical gymnastics off the high beam with pike relates to Ms O'Neill pretending that the only reason for getting Val G to give the politico-legal advice on key issues was logic.   It was common sense, plain and simple - anyone would do it.

• Issue one - taking legal advice about the findings of fact in FWA's reports.   Got to go to Val, he's the only one who would know, the AGS wouldn't have the detailed info, not close enough to it like Val the closely involved expert on matters like who did what and thus what findings we'll make.
• Issue two - legal advice on whether to name persons of interest once the findings of fact against them have been made.  Got to go to Val.  Can't go to the AGS, they're too close, they've been assisting from day one, only Val has the distance from the investigation to give impartial advice on matters like this.

I'll start a new post shortly with contract info for the KPMG haymakers who along with "gotta-go-to-Val" did very well from the one-stop-shop that Julia and Val built.

Might whack in an ad now for another law firm, "gotta-go-to-Val"'s been getting a bit too much work for my liking.