Did Bill Shorten act properly in using taxpayer resources to have an administrator appointed to the Health Services Union?
On 3 April 2012, Bernadette O'Neill sent Val Gosterncnik the FWA Report, its Annexures A-M, each of the transcripts of interview and all of the casebook documents referred to in the final report.
The Report itself was not made public until 7 May 2012. None of the Annexures A-M or the other material has yet been made public. Neither Minister Shorten nor PM Gillard had any lawful means to know what was in the report until the rest of us found out.
On 12 April 2012 Minister Shorten retained former HSU official and lawyer Val Gostencnik to act for him in the application to appoint an administrator to the HSU.
Here is the Australian Financial Review's report from the time - keep in mind no one knew that Shorten's lawyer Gostencnik had the FWA report and Annexures.
PIP FREEBAIRN, HANNAH LOW AND MARK SKULLEY
A Federal Court judge has expressed scepticism about the Gillard government’s sudden decision to install an administrator to take control of the Health Services Union and questioned why the government turned up to court asking for two weeks to get the paperwork together.
Workplace Relations Minister Bill Shorten took the rare step of moving to place the HSU East branch into administration, a decision welcomed by the ACTU and Unions NSW and blasted by Kathy Jackson, the national secretary at the centre of a power struggle in the union.
“He [Mr Shorten] wants to make sure he ends up in a position where he controls this union personally, not as the minister, but personally,” she said.
Mr Shorten, who said he was acting to protect the union’s 55,000 members, signalled he might block publication of a report by Fair Work Australia into alleged irregularities in the union that examined the role of former national secretary and federal Labor MP Craig Thomson.
“I will not put at risk any potential civil or criminal charges,” he said.
He was accused by the federal opposition of trying to shield Mr Thomson.
Appointing an administrator will delay the release of an investigation by barrister Ian Temby and accountant Dennis Robertson into alleged rorting in the HSU East branch, which covers workers in Victoria and NSW.
A version of the report was due to go to the branch’s executive on Monday. The meeting was cancelled because of legal action.
A government-hired lawyer asked the Federal Court in Sydney on Thursday for a fortnight to file the application to appoint an administrator.
Judge Geoffrey Flick said the request was a “bit odd” and gave the government until the end of Monday. Justice Flick said it would not be enough to issue a “press release” in his courtroom about a “hypothetical application”.
“I have a degree of scepticism as to the timing of this application,” he said. “The minister should have made it much earlier than today.”
In Melbourne, Mr Shorten said the government had to decide on a “most serious and grave action” to protect the union’s members from further “dysfunctional fighting”.
Mr Shorten said the government’s intervention would not support any individual or faction within the union. His claim was attacked by outspoken HSU leader Ms Jackson who has pursued Mr Thomson and HSU president Michael Williamson.
Ms Jackson agreed there were grounds to appoint an administrator but accused Mr Shorten of being personally involved in backroom manoeuvring against her, and protecting Mr Thomson.
Ms Jackson alleged that a HSU member and suburban Labor Party identity in Melbourne, Diana Asmar, contacted union members in recent weeks to seek individuals who would be prepared to lodge internal charges against her. Cr Asmar is a former Labor mayor of the City of Darebin and unsuccessfully stood for a position in the union’s Victorian branch against a key supporter of Ms Jackson.
Mr Shorten said he had “absolutely not’’ been involved in backroom machinations against Ms Jackson and had not seen Cr Asmar for about a year. A spokesman for Communications Minister Stephen Conroy said he had not “met with or spoken to Diana Asmar this year”.
The federal opposition’s workplace relations spokesman, Eric Abetz, said Mr Shorten’s actions were “too little, too late” and voters and union members were entitled to know the full details.
“The release of the Wood Royal Commission, the release of the Fitzgerald inquiry in Queensland, did not prejudice the bringing of criminal charges,” he said.
“It also shows the thinking of [Prime Minister Julia] Gillard and her government that the longer this matter can drag on, the better, because it gets them closer and closer to the election date without having to deal with Mr Thomson.”
Opposition Leader Tony Abbott dismissed Mr Shorten’s actions as a “squalid manoeuvre” to hide a contentious report.
“What is the government trying to hide here?” Mr Abbott said on the Nine Network on Friday.
“What does the government know? Is the government trying yet another squalid manoeuvre to keep the FWA report hidden, to try to protect Craig Thomson for even longer?”
A Senate committee sought advice from the Commonwealth Director of Public Prosecutions over a request from Mr Thomson’s lawyers to suppress a Fair Work Australia report that outlines 181 workplace law breaches at the Health Services Union while he was national secretary.
Mr Thomson has denied wrongdoing, as has Mr Williamson. Daniel Govan, a hospital theatre technician in Melbourne, said he would seek to charge Ms Jackson under the union’s rule for misusing members’ funds for personal expenses, including international air fares and childcare.
Mr Thomson has been accused of using a union credit card to withdraw $100,000 in cash and for prostitutes while he was national secretary from 2002 until he was elected to Parliament in 2007.
If convicted of criminal offences, Mr Thomson could be forced to leave Parliament, threatening the future of the Labor government’s one-seat majority.
Mr Temby wrote to the union’s lawyers, Slater and Gordon, saying a meeting should be held, “the sooner that happens, the better [it] would be”.
“In our view, the Union Council should be made aware, as soon as is practicable, as to the deficiencies in this area of the union’s activities, so that remedial action can begin now, not months down the track,” he wrote. Mr Temby was not available for comment yesterday.
Imagine how the Federal Court Judge would have reacted had he known that Shorten's lawyer Gostencnik had a complete copy of the Fair Work Australia material when he made the Application on Shorten's behalf!
Here is Justice Flick's reaction when Shorten tried to get a copy of the Temby report before its release.
This business did not come cheaply for the taxpayer. Here are some of the invoicing details fror Herman Borenstein SC, who made more than $600,000 representing the Minister's department.