|Issue No. 150
|30 August 2002
Shut It Down!
Interview: Australian Worker
Unions: Morning Ambush
Cole-Watch: Grumpy Old Men
International: Arrested (Sustainable) Development
History: Illegal Alien
Economics: The Trouble With PPPs
Poetry: Is This 'My Country'?
Review: Garage Days
The Locker Room
Week in Review
Bias Case Clears First Hurdle
Justice Wilcox granted leave for the substantive CFMEU case, arguing procedural unfairness and bias by Commissioner Terence Cole, to be heard in Sydney over the coming week.
The CFMEU sought Federal Court protection in the face of the Commissioner's decision to judge the complaints against himself at a hearing in Melbourne on Monday.
"We anticipate he will disqualify himself," CFMEU secretary Andrew Ferguson said. "But, if he fails to do the right thing, we will proceed to the Federal Court."
Union lawyers are seeking a range of declarations and orders that would effectively bar Cole from hearing further evidence or bringing down findings in respect to NSW.
Any level of success would make legal history as it would be the first time in Australia that a court had over-ridden a Royal Commission.
Cole's first report, handed down on August 5 and acted on with alacrity by Workplace Relations Minister Tony Abbott, seems certain to play a central role in the challenge. The union is arguing for it to be overturned.
In it, Cole said he was satisfied that evidence demonstrated 15 separate illegal or inappriative acitivites, including "disregard of the rule of law". It included a recommendation that an interim industry tasforce be established with an office in Sydney.
That report was delivered before the second session of Sydney hearings opened and, according to union lawyers, before Cole had called for, or heard, the evidence of their clients.
"The first notice that applicants received that the Commission had issued or was issuing a First Report was on August 20," they will argue, "by way of a media release from the Minister for Employment and Workplace Relations. No submissions were called for or received by the Commission from applicants prior to the date of the report."
They take strong exception to Cole's finding that "much of the evidence of such conduct is not in dispute".
"In New South Wales the entirety of the evidence presented to the Commission by counsel assisting of allegations of inappropriate and unlawful conduct is in dispute and evidence has been presented to the Commission disputing such evidence.," they will argue.
Lawyers are also expected to contend that the decision of Commission investigators and counsels assisting, not to interview a single CFMEU member prior to producing evidence, was unfair, and to question the whole basis on which Cole ran the Sydney hearings.
Star Commission witnesses, Steven and Barbara Strong, seem certain to get further attention.
Barbara Strong alleged that CFMEU organiser, Tommy Mitchell, had threatened to break her arms and legs; threatened her children; and that he and another union official had tried to extort significant sums of money from her.
Although eight people either attended or heard the meeting where some of these offences were said to have occurred, key elements of the Strong's evidence was either contested or not supported by each of the other attendees, including employers and sub-contractors.
Despite that, counsel assisting submitted that the Strongs should be believed and, accordingly, adverse findings made against Mitchell and the other union official.
Their demand had barely been lodged when the allegation unwound further.
First, the Strongs who claimed to have been driven from the industry by the CFMEU, were found operating a demolition site in Glebe. It was immediately closed down by Workcover and the local council because of health and safety deficits and their failure to obtain necessary consents.
Then, Telstra records and police files demanded by the CFMEU, raised further doubt over the stories.
Counsel Assisting Nicholas Green was backed by Commissioner Cole in his refusal to make those records available to the union.
Although Green confirmed the records didn't support allegations levelled by Mrs Strong, he indicated he would continue to rely on the bulk of her evidence for adverse findings against Mitchell and his associate, Brian Fitzpatrick.
The union is taking action under the Administrative Decisions (Judicial Review) Act, the Judiciary Act and sections of the constitution.
Thirty five officials, organisers and delegates are seeking a range of reliefs - from Cole being stood down and his first report overturned, to an instruction that he conduct the Commission according to law.
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