Suggestions by Tony Abbott and some media commentators that Fair Work Australia has bungled the Health Services Union investigation and therefore will be unable to prosecute Craig Thomson and others involved in the affair are wide of the mark.

According to the rhetoric, because FWA did not prepare a brief of evidence when it referred the 1100-page investigation report to the Commonwealth Director of Public Prosecutions the case is a dead duck. Nothing could be further from the truth.

The DPP’s Christopher Craigie, SC, is quite right that his department is not an investigation agency and only acts on briefs of evidence provided to it by a referring government agency. It’s a long-standing policy well known by most government agencies. The DPP depends upon the referring agency to investigate offences and prepare briefs of evidence to support prosecution. It is their role to consider briefs of evidence referred by investigating agencies. Prosecution decisions are taken independently of those who were responsible for the investigation.

In 2006, criminal lawyer Peter Faris, QC, and I wrote in Crikey that the DPP should involve itself in the case of former Reserve Bank board member and big Liberal Party donor Robert Gerard and his tax avoidance case. The DPP at the time, Damien Bugg, QC, responded saying: “To suggest that the DPP should seek to intercede in a case where it has no power to do so and has no brief, is to suggest that this matter be dealt with differently to the normal processes.”

However, in his media release last week, Craigie said it will examine the material and consider what further action may need to be taken. As well as prosecuting matters, the DPP also provides legal advice to government agency investigators in particular matters when it is requested by agencies. Often this advice is sought and provided at an early stage of the investigation, particularly if the case is of a complex nature. What Craigie clearly intends to do is provide FWA general manager Bernadette O’Neill with advice as to how to progress the matter further in terms of a criminal prosecution, including requesting a brief of evidence.

It its guidelines to referring agencies, the CDPP states:

However, an investigator may, prior to referring a brief to the CDPP, consult the CDPP on:

  • possible offences, criminality and scope of the investigation;
  • legal advice as to search warrants and the use of other investigation powers; and
  • the format of the brief.

But is there anyone in FWA that has the expertise to prepare a brief of evidence if the DPP call for one? According to a FWA spokesman, they do not have an in-house prosecution unit or anyone with the qualifications to do this and that is why they asked to DPP for help. Indeed, since their transition to FWA from antecedent organisations such as the Australian Industrial Relations Commission in 2009, FWA has never referred any criminal case to the DPP.

So why did O’Neill refer the report to the DPP without the requisite brief of evidence? I think it is a simple case that she wasn’t aware of the DPP policy of separation between the functions of investigation and prosecuting. She was provided legal advice from the Australian government solicitor that under the Fair Work (Registered Organisations) Act 2009 she could refer the matter to the DPP for action in relation to possible criminal offences. That is what she did — but without the brief.

Craigie will in due course supply O’Neill with legal advice on what to do next. If it involves preparing a brief of evidence to advance the matter to court, O’Neill needs to think about who she might get to do the job.