One sentence, used to protect right wing poster girl Kathy Jackson, lays bare the bias driving Tony Abbott’s royal commission against trade unions.
Jackson, feted as a hero by Prime Minister Abbott, Education Minister Christopher Pyne and right wing shock jock, Michael Smith, now faces charges that she stole hundreds of thousands of dollars from members of her former union, the HSU.
These came to light after Jackson was anointed a “whistleblower” by Abbott’s royal commission.
The commission heard Jackson misused credit cards on an industrial scale and cut a deal with Melbourne’s Peter MacCallum cancer hospital over more than $3 million in backpay owed to staff.
It is alleged that settlement never went into union funds, much less the pockets of affected workers, but, instead, into an account Jackson used for her own spending.
Given the credit card allegations, the ‘Peter Mac’ money, and claims Jackson improperly awarded herself a $63,000 honorarium are likely to be canvassed in Federal Court action bought by the HSU, counsel assisting Jeremy Stoljar says, the royal commission should move right along.
Because of the flagged court action, he submits, “it would not be appropriate,” for the commission “to say anything further in relation to them ”.
Stoljar lays out his guiding principle in the introduction to the HSU section of his submissions. It consists of 22 words and they are clear:
“The starting point is that the commission has not sought to reinvestigate matters that are, or have been, the subject of litigation.”
While this could see Jackson wriggle clear of the commission hook, it seems entirely reasonable. A royal commission is not a court and should not second-guess cases, or people, that are before proper courts.
Jackson, and every other person, is entitled to be considered innocent until a court finds otherwise.
And, besides that, where would the system be if royal commissions started making findings that clashed with court decisions?
But this principle is abandoned, with relish, as soon as Stoljar sights Abbott’s sworn enemies from the CFMEU.
Stoljar goes full bore after construction union members on at least three issues he knows are before the courts. More worryingly, he submits the commissioner should effectively beat courts to the punch by returning criminal findings.
In ploughing on with his Boral case study, Stoljar ignores the principle he has set out for dealing with Jackson. Indeed, he goes pretty close to opposing it in ridiculing CFMEU reasons for not putting on evidence.
Its decision to cite “outstanding litigation” Stoljar submits “would appear to be to be the Supreme Court proceeding and Federal Court proceeding. They are, so far as the commission is aware, the only proceedings involving Boral and the CFMEU.
“For a number of reasons, the commission would not regard this as a cogent explanation.”
The fact is that in a royal commission parties like the CFMEU cannot actually call witnesses. Only counsel assisting, who has the power to compel people to give evidence, can do that.
Given Stoljar’s Jackson principle, and his decision not to seek evidence from Victorian CFMEU construction division secretary John Setka, it is doubly bizarre that he then should urge that Setka be prosecuted for blackmail.
“The Boral case study reveals the breach of many laws by the CFMEU and its officers,” Stoljar says. “Mr Setka committed the offence of blackmail.”
These are amazing submissions to put on the record, given Stoljar chose to call no union evidence at all.
He also submits Victorian assistant secretary, Shaun Reardon is guilty of either blackmail or being an accessory to blackmail, and that the CFMEU and a number of small concreters engaged in cartel behaviour against Boral, a US-based multinational, making them all liable to $10 million fines.
The ACCC has already investigated the last item on Stoljar’s wish list and rejected it.
Stoljar calls on the commissioner to recommend criminal charges, including assault, against at least five CFMEU officers over verbal confrontations with Building Commission inspectors in Sydney and Adelaide.
In leading this material, which accused persons were again not asked to give evidence on, Stoljar acknowledged some matters were before the courts.
The Hindmarsh investigation, in Brisbane, is being driven by the same Building Commission Inspectorate which, so far, has had it before the Fair Work Commission and the federal circuit court.
According to the Inspectorate’s website, it has the substantive case listed for hearing in the federal court, next month.
Nevertheless, Stoljar submits that, for their involvement in industrial action, CFMEU state president David Hanna and assistant state secretary, Jade Ingham, should face criminal charges carrying five year jail terms.
Less than a month before the court case is due to start, he also wants the commissioner to find Ingham and fellow official, Chad Bragdon, have committed offences punishable by $51,000 fines.
CFMEU construction division national secretary, Dave Noonan, says these submissions raise serious concerns over commission processes that could cast shadows over its conclusions.
“You don’t have to take our word about the lack of consistency,” he said. “These submissions speak for themselves.”