An open letter to the Isles of Scilly Councillors.

Vincent O’Grady,


Vic 3083


Date: 26 October 2017


Re: Roles and responsibilities of Councillors in relation to major policy decisions affecting the Population of the Isles of Scilly.


Dear Councillor,


I feel compelled to write to you regarding this matter because I believe that “council” has somewhat lost its way and has forgotten, it’s reason for its existence and it’s day to day operations.


This letter does not seek to criticise, rather it seeks to assist councillors so that they can bring a better focus to their duties. Many times in my working life, I have been the recipient of unsolicited advice and have always been the richer for that advice. The giver of the advice knew that the advisee may well not be a willing recipient. That may also be the case here and I have spent many hours mulling over whether to write this letter with these thoughts in mind. The thing that finally made up my mind to spend the time to do the research and write such a letter is the benefit that it would be to the aged of Scilly who need to be treated with the respect of us all. I hope that the letter is taken in the spirit it is written.


The following letter seeks to clarify some of the issues which have recently been put before council and which, in my opinion should have been handled better by the council as a whole.


One of these issues is the closure of Park House, but it raises a much bigger series of Questions which I believe need to be addressed.


Those Questions are:


1/ What are the duties and responsibilities of Councillors?


2/ What are the duties and responsibilities of Council Officers?


3/ What are 1/ and 2/ Governed by?


Firstly let me tell you a bit about me.


I was born in St Mary’s Cottage Hospital in 1954, the son of Eddie O’Grady and Nancy Hayles. Eddie was born on the Islands in 1921. Eddie’s mother Margaret Toomey was Scillonian born as well in 1895. She was the daughter of Daniel Toomey who worked in the Coastguard and who had been posted to Scilly towards the end of the 1800’s. Eddie’s father Michael O’Grady was posted to Scilly by the Royal Navy for the duration of hostilities in the first war.


All of my Uncles and my father were born in our family home, Innisidgen, in Church Street. Like many Scillonians Eddie left Scilly during the war and joined the Royal Navy to serve on a Destroyer Escort which completed operational duties in the Atlantic, in the Arctic and the Mediterranean.

Following the second war my father purchased “Innisidgen” under the Returned Serviceman’s Scheme.


At the age of four, I attended Carn Thomas Primary School and at aged 11 I went to the mainland to board at Truro School. When I was 18 I came home for a while before joining the West Midlands Police. In 1978, I emigrated to Australia.


Like many Scillonians, I worked on the Farm at Longstone and Trenoweth picking flowers and potatoes and on the boats in the summer season.


So Scilly is my home and has been the home of my extended Toomey/O’Grady family for over 120 years. Family still live on the Islands.


Also like many other Scillonians I have had to leave the islands to find work. However many of the people who I grew up with and who mentored me through my childhood still live on Scilly and it is my hope that in their latter years they will be treated with the respect they warrant and deserve.


Through the internet, I take a keen interest in what’s happening on the islands and I have many Scillonian friends.


My intention in this letter is to follow through the answers to the three Questions in a logical and common sense way and to urge you as a Councillor to follow this path in your decision making processes.


I was disappointed, along with many other Scillonians to learn of the sudden closure of Park House, particularly because the elderly of Scilly would have to leave their home and go away to the mainland. The disruption to their lives at such an age is a callous and cruel circumstance, not to mention to their families as well.


It seemed to me a decision which was taken without due process and by the wrong person, a Council Officer, who claimed that it was a decision of an Officer because of the “Scheme of Delegation” approved by Council.


Apart from Schemes of Delegation and Local Government Acts of Parliament, there is an overriding reason to look after the elderly of Scilly. That reason simply put, is because every person when they reach old age deserve the same care that has been accorded to the elderly for years now. It’s the right thing to do as humans and as a community. It’s a moral imperative.


Duties and responsibilities of Councillors.


At this point I wanted to make some points about the duties and responsibilities of Councillors.


Councils all over the United Kingdom are the result of a democratic process, where generally speaking the people (electorate) elect by ballot, a series of representatives (Councillors) to provide certain services which are spelt out in the Local Government ACT 1972 and subsequent Local Government and other Acts.


The Local Government Act 1972 is a document which defines what a Council is and what it is capable of doing. It was passed in the National Parliament in Westminster and is the law of the land. In effect it delegates powers to local authorities.


Generally speaking decisions are made by “Council” in a series of meetings covering various issues. Delegation is given by the full council to sub committees and these meetings are covered and run to a set of Standing Orders.


Further legislation was enacted in 2000 to do with Local Government and can be found in the Local Government ACT 2000.



Duties and responsibilities of Council Officers.


To assist Council in it’s decision making process it is necessary, to have a series, of what can loosely be described as experts (Council Officers), to advise Councillors on a range of issues about which decisions needs to be made.


This is normally done by writing briefing papers and explaining options to Council.


It is important to understand that decision making is the prerogative of the Council and NOT of the Officers.


This is common sense. If it were the prerogative of the Officers, then there would be no need for Councillors. Please also see discussion below about the general principles of delegation of authority.


What are the Legal requirements of Councils to follow.


I have already mentioned the main Act of Parliament by which Councils are formed and operated. The Local Government ACT 1972. The link below will lead you to this ACT and its precise sections. If you are unsure (as a Councillor) what the ACT says about your responsibilities as a councillor, please read it. If you are still unsure seek expert advice from the Council Solicitor. Section 265 of the Act specifically mentions The Isles of Scilly Council.


Please see below for the specific sections of the ACT which relate to delegation of powers from Council to Officers.


As well as this law there are many other Laws which govern how we live and which the council may or may not be responsible for enforcing/administering.


Licensing Laws are one, the operation of Pleasure Craft another. The one which was used as part of the justification for closure of Park house was the


The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014


Which can be found here.


There are many other Acts which may or may not be applicable. Always a good idea to ask “What Act of Parliament covers this?” and then a good idea to go and read it. Health, Education and Policing come to mind.


General Principles of Delegation of Authority.



Generally speaking, where authority to do something is given, it is given formally. The Local Government ACT 1972 is a formal document which allows local authorities to operate. It prescribes the manner in which they operate and gives them bounds. Further specific powers and limitations are given to Local Authorities under the Local Government Act 1974 and 2000.


Generally authority can be given formally in different ways. For example:


Police Officer by warrant and specific Acts of Parliament,

Chemist  by License (associated with an Act of Parliament).

Boatman by License.

Food service to public by License (associated with an Act of Parliament).

A Publican by License (associated with an Act of Parliament).



The ability to operate Park House is formally given to the Council by the The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.


The Council are a registered body under these regulations. The registered person then has to (in the case of the Isles of Scilly Council) Part 3 Section 1 (6) give the Commission the name of a “nominated individual” who manages the facility under the regulations.


When looking at some of these occupations, it is obvious that they are specialist fields and that they are regulated by Act of Parliament.


For example a Police Officer and a member of the public have a power of arrest under the Common Law, but the member of the public doesn’t have a power of arrest under certain statutes (Acts of the Parliament). They are incapable of delegating his/her authority to a member of the public.


In each of the examples above each profession has responsibilities spelt out by Statute and there is NO power to delegate that responsibility to another person.


Imagine a chemist delegating their dispensing responsibilities to the shop assistant. Or, the Licensed food handler blaming the Ecoli infection on the dishwasher. The Licensed boatman saying to the crew, you take her out today, I’m tired and want to sleep in. The Publican saying to the bar tender, you are responsible for the whole deal for the next week whilst I go away to the mainland for a holiday.


The general principle is called Delegatus non potest delegare. Which basically means the delegate cannot delegate. That which is your responsibility remains your responsibility.


Here is an interesting Legal paper which describes the principle in actual cases. It shows the minefield one can enter when even experienced administrators are delegating.


I do not bring this up as an example of absolute fact, but as an example of the care with which administrators should take when going about their responsibilities.


Any delegation of authority which is not correct is called Ultra Vires. Or beyond one’s legal power or authority.


Discussion as to the Specific case of the closure of Park House.


It could be argued that the doctrine of Delegatus non potest Delegare doesn’t apply here because Section 101 of the Local Government ACT 1972 specifically allows Council to delegate.


101 Arrangements for discharge of functions by local authorities.


(1)Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions—


(a)by a committee, a sub-committee or an officer of the authority; or


(b)by any other local authority.


Section 100G of the Act also provides


100G Principal councils to publish additional information.


(1)A principal council shall maintain a register stating—


(a)the name and address of every member of the council for the time being [F2together with, in the case of a councillor,] the ward or division which he represents; and


(b)the name and address of every member of each committee or sub-committee of the council for the time being.


(2)A principal council shall maintain a list—


(a)specifying those powers of the council which, for the time being, are exercisable from time to time by officers of the council in pursuance of arrangements made under this Act or any other enactment for their discharge by those officers; and


(b)stating the title of the officer by whom each of the powers so specified is for the time being so exercisable;


but this subsection does not require a power to be specified in the list if the arrangements for its discharge by the officer are made for a specified period not exceeding six months.




For the purposes of this discussion the Section 101 component is called “Scheme of Delegation” and after a diligent search of the council of the Isles of Scilly Website I could not find the document. However I trawled back through the Full Council minutes and found the applicable document appended to those papers for the council meeting of 12 May 2015 (Reports pack 1252015 full Council pages 161 – 236 (75 pages)). However on that day the Scheme was not passed and it was interesting to note an article in Scilly Today on May 15 2015 which was scathing of the proposed scheme. The article quoted adverse comments by three councillors.


The scheme was passed at a Special full Council Meeting  on 9th June 2015. (Public reports pack 09062015 Pages 1-84 (84 pages? an additional 9 pages.)


The actual document in the reports pack should not have been presented to Council in the form it was presented. The numbering scheme is all wrong. Section One starts of at 1.1 as does section 2 and section 3. Etc.


Whilst section 101 of the local government ACT 1972 gives the Authority to refer powers, it is not a mandatory requirement.


A thorough reading of the document gives the delegation to Officers of a wide range of powers without recourse to the Council, rendering the Council Officers in charge of virtually everything and the democratic process trashed.


The document purports to define the day to day operational delegation of powers from Council to Officers, but then goes and delegates almost every decision to Officers.


In this regard the document is confusing and contradictory. On the one hand it talks about delegation of statutory powers (which by definition are already the responsibility of Officers of Council) and then other powers which cannot be delegated and are the responsibility of Council.


I will quote from the Reports pack document because I could not find this Scheme of Delegation on the Web site (It may have been available for public perusal at the Council Offices however).

Under each Quote is a Question that the Quote raises in my mind.


Section One Introduction.


1.5 Similarly there are a number of decisions of the Authority that remain, statutorily,

solely within the remit of Members, for example, and again not exhaustively;

  1. a) setting the Council Tax base;
  2. b) setting budgetary requirements in relation to service areas; and
  3. c) adopting plans and strategies in relation to Council Policy.


Question. Isn’t the provision of a Residential care facility a plan or a strategy? Isn’t adopting a new plan to not provide a Health Care Facility, a change in Council Policy and therefore for the council to decide?


1.8 It is incumbent on the Officers referred to in this Scheme of Delegation to keep

Members properly informed of activity arising within the scope of these delegations and to ensure a proper record of such activity is kept available to Members and the

public in accordance with relevant legislation.



Question. Was this clause adhered to leading to the closure of Park House?


In order to ascertain whether members were kept properly informed, I analysed the Council minutes from 25 October 2015 to March 2017 and could find no talk of an immediate crisis, although in the documents produced to the relevant committee of council there was mention of a “Staff Plan” for Park House but the actual plan was not in the documents presented to members. This report was 36 page in length and referenced all the relevant Council minutes. There was no talk of a crisis or closure of Park House.


 1.9 The Chief Executive and Senior Managers must consequently ensure that

appropriate systems are in place for the recording of decisions and actions taken as a

result of the exercise of a delegated power. It is incumbent therefore that regular

reports, and at least once during each committee cycle, be presented to Council or

the relevant Committee summarising any decisions taken under this Scheme of

Delegation and other urgent provisions contained within the Council’s Standing

Orders. These reports will be presented to Council, and/or the relevant Committee

for noting as Part 2 reports.


Question. Was this clause complied with?


Section Two General Provisions. (Note the numbering)


1.3 Any delegation does not include:

  1. a) any matter reserved to Full Council or its committees;
  2. b) any matter which by law may not be delegated to an officer.


Question. 1.3(b) Is the Council as the registered user able to delegate to the nominated Officer the power to close the Residential Care Facility, Park House? Bearing in mind the Delegatus non potest delegare discussion above.



1.4 The exercise of a delegated power, duty, or function shall;

  1. a) be subject to the Council’s policies;
  2. b) not amount to a new policy or extension of or amendment to an existing


  1. c) be subject to the requirements of Standing Orders, Financial Regulations,

Procurement rules, and Corporate Standards;

  1. d) be subject to budget.


Question. 1/ Was the closure of Park House subject to the council’s policies? In other words what was the council’s policy as to provision of residential care?

2/ Was closure of Park House a new policy or extension of or amendment to an existing policy?



1.7 Delegation to Officers is subject to:

  1. a) the right of the Council, Committee or Sub-Committee to decide any matter

in a particular case;

  1. b) the Chief Executive, Senior Managers, or other Officer, in lieu of exercising

his/her delegated power, deferring to a Committee or Sub-Committee for a

decision; and

  1. c) any restrictions, conditions or directions of the Delegating Council,

Committee or Sub-Committee.



Question.  Was this clause in the scheme considered fully by the Officer before taking the decision to close Park House?




1.8 In exercising delegated powers, the Chief Executive or other officers shall;


  1. a) comply with the requirement of the Corporate Legal Standards and shall

address all legal, financial and other professional safeguards as if the matter

were not delegated;

  1. b) exercise the delegation so as to promote the efficient, effective and

economic running of that business unit, the Council, and in furtherance of the

Council’s visions and values;

  1. c) maintain a full record of actions taken and where and when appropriate (and

at least once during each committee cycle) report back to the Council’s

appropriate Committee or Sub-Committee as to the exercise of those

delegated powers; and

  1. d) carry out any necessary and appropriate consultation prior to the

engagement of the delegated power.



Question 1/ What checks were done to make sure that the decision was legal before making it?

2/ Where is the full record of all actions taken, they were not before the relevant committee according to my research of the council minutes?

3/ What consultation and with whom was carried out prior to engagement of the delegated power?



1.11 A register of delegated powers shall be maintained by the Senior Manager:

Democratic and Corporate in his role as Monitoring Officer. Any new delegations

will be added to the register as they are made by delegating bodies or committees.

All new delegations must be brought before Members for approval. Officers should

take care to inform themselves of any subsequent changes to the register before

relying on this document. Officers should ensure that the Senior Manager:

Democratic and Corporate is made aware of any new or additional delegations made

by delegating bodies so that the register of delegated powers is fully and accurately

maintained. This register shall be available for public inspection. Those matters

contained in this Scheme of Delegation will form the initial basis of the register.



Question. Where is this register? It is also a requirement under statute. Section 100G of the Local Government ACT 1972.


1.14 Delegated decisions shall not involve the adoption of a new policy or a major

extension of an existing policy of the Council and shall exclude any case where the

magnitude or controversial nature of a proposal is such that the Council or

Committee should take responsibility for a decision.


Question. Do I really need to spell the Question out?


Surely Blind Freddy can see that the closure of Park House is a change in policy and is of a hugely controversial nature.


1.19 All matters of interpretation of this Scheme of Delegation shall be determined by the

Chief Executive acting as Head of Paid Service in consultation with the Chairman and

Vice Chairman and should be interpreted widely to aid the smooth running of the

Authority, the effective deployment of human resources and to allow for the

efficient delivery of services.


Question. Isn’t this giving too much power to the Chief Executive?


Section 3  Matters for referral to Council, committees or sub committees.


Once again note the numbering.


1.1 If any of the following criteria apply, the matter should be considered by Elected

Members at Full Council, a Committee or a Sub-Committee. The opinion of the Chief

Executive, in consultation with the Chairman of Council or Vice Chairman of Council

together with the Senior Manager of the business unit responsible as to whether or

not these criteria apply shall be final and conclusive:

  1. a) Matters of significant political impact, including those which impact

significantly on the issues of Members’ accountability to the electorate.

  1. b) Matters of substance relating to key and significant projects.
  2. c) Matters which raise specific issues requiring choices between options which

themselves might have knock on-effects elsewhere, for example in relation to

funding arrangements, or completion of specific larger projects.

  1. d) Where significant risks have been identified in proceeding with the issue as a

result of the completion of an appropriate risk analysis.

  1. e) Where issues of timing, presentation, or relationships with other bodies (e.g.

other Councils, outside bodies, central government) have become critical to


  1. f) Where there is significant deviation from the original intention of a project


  1. g) Requires a decision which was not anticipated in the Council’s agreed plans

or policies.

  1. h) A proposal for a detailed Strategy/Action Plan which is consistent with, but

goes beyond the intended scope of an agreed council policy.

  1. i) Where a high level implementation decision is required


Question. What part of this clause didn’t the council Officer understand?


Any including?

a)This had a significant political impact (Care of the Aged).

b)This was a matter of substance relating to key and significant projects. (Care of the aged)

  1. c) Certainly a knock on effect for users of the service and their families.
  2. f) This is a significant deviation from an original project plan. Original plan was Care of the Aged in Park House and change was closure of Park house.
  3. g) refer again to Council minutes re the decision being anticipated. It was not.
  4. h) It certainly goes beyond the intended scope of an agreed Council Policy.





I think I have made my point in the above discussion.


The council CEO claims that the Officer in this case had the right to close down the Facility.


  1. Under Statute as the nominated Individual.


I argue that the registered user cannot delegate their statutory powers as the responsible individual (The delegate cannot delegate).


The Regulations which cover the operation of Park House are prescriptive of what duties the nominated individual must do. They do not mention a power to cease the operation of the facility, rather they are made to ensure the safety of residents in prescriptive regulations.




2.Because of the Scheme of Delegation.


A simple reading of the Scheme of Delegation shows that this is not the case.


It is my contention that the officer’s action was Ultra Vires. (beyond one’s legal power or authority) and that the document which councillors approved goes far too far in delegation of their powers. Rather it is an abrogation of powers by Councillors.


I urge councillors to take the time to look on the Internet at other Local Authorities and their Schemes of Delegation. They are nowhere near as detailed or as general in the assignment of powers to Council Officers. Many of the ones I looked at are much bigger councils as well.


Finally this letter is NOT a complaint, nor it is a lecture, it’s an attempt to protect the vulnerable people of Scilly who at the end of their lives need residential care. What could have happened to them and their families was callous in the extreme.


I urge the Councillors to revisit the 84 page Scheme of Delegation and vote it down and take back their statutory power. In my opinion the scheme goes far too far in its scope and reach and gives unelected officers far too much power.



Yours faithfully



Vincent O’Grady. B. Bus (Mkt).


Transparency and the Isles of Scilly council.

What is “The Council?” and What is the Local Government Act 1972?

In the United Kingdom Local government is currently regulated by the Act of the British Parliament called The Local Government Act 1972.

The Act can be found here.

The definition of a “Council” under the Act is given in Section 2.

Constitution of principal councils in England.

(1)For every [F1non-metropolitan] county there shall be a council consisting of a chairman and councillors and the council shall have all such functions as are vested in them by this Act or otherwise.

(2)For every district there shall be a council consisting of a chairman and councillors and the council shall have all such functions as are vested in them by this Act or otherwise.

[F2(2A)Where a council mentioned in subsection (1) or (2) above are operating executive arrangements which involve a mayor and cabinet executive or a mayor and council manager executive, the council shall consist of an elected mayor, a chairman and councillors.]

[F3(2B)In such a case, a reference in this Act to a member of a council is a reference to—

(a)the elected mayor of the council,

(b)the chairman of the council, or

(c)a councillor of the council.]

(3)Each council mentioned in subsection (1) or (2) above shall be a body corporate by the name “The County Council” or “The District Council”, as the case may be, with the addition of the name of the particular county or district.

The Isles of Scilly Council is mentioned in Section 265

265 Application of Act to Isles of Scilly.

(1)There shall continue to be a council for the Isles of Scilly to be known as the Council of the Isles of Scilly.

(2)The Secretary of State may make an order providing for the constitution of the Council of the Isles of Scilly and otherwise for regulating the application of this Act to the Isles of Scilly and may on the application of the Council make an order providing for the exercise and performance there of any functions which are for the time being conferred or imposed on local authorities.

(3)Any order made under this section may—

(a)apply to the Isles of Scilly any other public general Act relating to local government;

(b)provide for the contribution by the Isles of Scilly to Cornwall County Council in respect of costs incurred by the county council on matters specified in the order as benefiting the Isles of Scilly;

(c)provide for all matters which appear to the Secretary of State necessary or proper for carrying the order into effect.

(4)Any order in force immediately before 1st April 1974 under section 292 of the 1933 Act (application of that Act to the Isles of Scilly) shall have effect as if made under this section and may be varied or revoked accordingly.

What these Sections are basically telling us is that the word “council” means the Elected representatives of the community in which they live and that those representatives gathered together to make decisions (within the boundaries of the Local Government Act 1972 and any other Act of the Parliament which binds them legally)

So basically the councillors are the representatives of the community and must be elected by a proper ballot to become councillors.

The Local Government Act 1972 is the principal Act by which the Council of the Isles of Scilly must act.

When Councillors meet they have to follow and abide by a set of “Standing Orders” which detail the way they act during meetings. The Discharge of their functions is also set out in Part VI of the Local Government Act 1972, specifically in clauses 101 to 109.

Here is the link to the Isles of Scilly web site for their standing orders.

Under the Local Government Act 1972 you will see that the “Council” consists of a Chair, a vice chair and members. You will also see the Act allows them to employ staff. (Section 112).

As we read through the Act further you will see that from time to time the “Council” may need to delegate it’s authority to an Officer. That is also covered in Part VA, (Section 100 and it’s parts)

Access to Meetings and Documents of Certain Authorities, Committees and Sub-Committees.

Specifically Section 100G

[F1100G Principal councils to publish additional information.

(1)A principal council shall maintain a register stating—

(a)the name and address of every member of the council for the time being [F2together with, in the case of a councillor,] the ward or division which he represents; and

(b)the name and address of every member of each committee or sub-committee of the council for the time being.

(2)A principal council shall maintain a list—

(a)specifying those powers of the council which, for the time being, are exercisable from time to time by officers of the council in pursuance of arrangements made under this Act or any other enactment for their discharge by those officers; and

(b)stating the title of the officer by whom each of the powers so specified is for the time being so exercisable;

but this subsection does not require a power to be specified in the list if the arrangements for its discharge by the officer are made for a specified period not exceeding six months.

(3)There shall be kept at the offices of every principal council a written summary of the rights—

(a)to attend meetings of a principal council and of committees and sub-committees of a principal council, and

(b)to inspect and copy documents and to be furnished with documents,

which are for the time being conferred by this Part, Part XI below and such other enactments as the Secretary of State by order specifies.

(4)The register maintained under subsection (1) above, the list maintained under subsection (2) above and the summary kept under subsection (3) above shall be open to inspection by the public at the offices of the council.]

I have searched diligently in the Isles of Scilly Council website and cannot find any information under Part (2) above. Viz

(a)specifying those powers of the council which, for the time being, are exercisable from time to time by officers of the council in pursuance of arrangements made under this Act or any other enactment for their discharge by those officers; and

(b)stating the title of the officer by whom each of the powers so specified is for the time being so exercisable;

but this subsection does not require a power to be specified in the list if the arrangements for its discharge by the officer are made for a specified period not exceeding six months.

This is an important point because the Council officer who claimed that the closure of Park House was a decision of them as an Officer of the council and not as Member’s decision.

Having ascertained to the best of my knowledge that this Officer wasn’t delegated the Authority by Council, (by a properly constituted meeting of the council and with a Motion put and approved by members according to the Local Government Act 1972 and the Council’s own standing orders) the next Question is…. Did they (The Officer) have the Authority to close down Park House having been conferred that authority under any other Act of the Parliament of the United Kingdom?

The Act of Parliament which covers Park house is the Health And Social care Act 2008 (as amended).

Under this act the Minister for health has been given the Power to make regulations.
The latest Set of Regulations are the:-

The Health and Social Care Act 2008 (Regulated Activities)
Regulations 2014.
Linked here.

2.—(1) In these Regulations—

(Meaning of Terms under the regulations. (with PDF page numbers)).

“nominated individual” must be construed in accordance with regulation 6(2); (Page 4/32)

“registered manager” means, in respect of a regulated activity, a person registered with the
Commission(b) under Chapter 2 of Part 1 of the Act as a manager in respect of that activity; (Page 5/32)

“registered person” means, in respect of a regulated activity, a person who is the service
provider or registered manager in respect of that activity; (Page 5/32)

Nominated individual under Section 6(2). (Page 8/32)
Requirement where the service provider is a body other than a partnership
6.—(1) This regulation applies where the service provider is a body other than a partnership.
(2) The body must give notice to the Commission of the name, address and position in the body
of an individual (in these Regulations referred to as “the nominated individual”) who is—
(a) employed as a director, manager or secretary of the body, and
(b) responsible for supervising the management of the carrying on of the regulated activity by
the body.
(3) The registered person must take all reasonable steps to ensure that the nominated
(a) is of good character,
(b) has the necessary qualifications, skills and experience to properly supervise the
management of the carrying on of the regulated activity,
(c) is able by reason of their health, after reasonable adjustments are made, of properly doing
so, and
(d) is able to supply to the registered person, or arrange for the availability of, the
information specified in Schedule 3.

To explain what this means.
1. This refers to the council of the Isles of Scilly. They are the Service Provider. They are not a partnership. They have to nominate a “nominated Individual” The person appointing the “nominated individual” this is the “registered person”
2. The Service provider (registered person) is responsible for 3 (a),(b),(c),(d).
SCHEDULE 3 Regulations 4 to 7 and 19(3)
Information Required in Respect of Persons Employed or Appointed for
the Purposes of a Regulated Activity
1. Proof of identity including a recent photograph.
2. Where required for the purposes of an exempted question in accordance with section
113A(2)(b) of the Police Act 1997(a), a copy of a criminal record certificate issued under section
113A of that Act together with, after the appointed day and where applicable, the information
mentioned in section 30A(3) of the Safeguarding Vulnerable Groups Act 2006 (provision of
barring information on request)(b).
3. Where required for the purposes of an exempted question asked for a prescribed purpose
under section 113B(2)(b) of the Police Act 1997, a copy of an enhanced criminal record certificate
issued under section 113B of that Act together with, where applicable, suitability information
relating to children or vulnerable adults.
4. Satisfactory evidence of conduct in previous employment concerned with the provision of
services relating to—
(a) health or social care, or
(b) children or vulnerable adults.
5. Where a person (P) has been previously employed in a position whose duties involved work
with children or vulnerable adults, satisfactory verification, so far as reasonably practicable, of the
reason why P’s employment in that position ended.
6. In so far as it is reasonably practicable to obtain, satisfactory documentary evidence of any
qualification relevant to the duties for which the person is employed or appointed to perform.
7. A full employment history, together with a satisfactory written explanation of any gaps in
8. Satisfactory information about any physical or mental health conditions which are relevant to
the person’s capability, after reasonable adjustments are made, to properly perform tasks which
are intrinsic to their employment or appointment for the purposes of the regulated activity.
9. For the purposes of this Schedule—
(a) “the appointed day” means the day on which section 30A of the Safeguarding Vulnerable
Groups Act 2006 comes into force;
(b) “satisfactory” means satisfactory in the opinion of the Commission;
(c) “suitability information relating to children or vulnerable adults” means the information
specified in sections 113BA and 113BB respectively of the Police Act 1997

3. General discussion (Explanatory Note.. Not part of the regulations) (31/32) re nominated individuals and registered persons.
In Part 3, regulations 4 to 7, and Schedules 3 and 4, contain requirements in relation to persons
registered in respect of the carrying on or management of a regulated activity (“registered
persons”), and require certain information to be available in relation to those persons. Where a
regulated activity is carried on by a body other than a partnership, that body must nominate an
individual (“the nominated individual”) who must meet certain requirements (regulation 6).
Regulation 7 lays down requirements in relation to registered managers.
Regulation 5 lays down a new fit and proper person requirement that must be met by directors of
an NHS trust, an NHS foundation trust or a Special Health Authority that carries on a regulated
activity. The requirement lays down criteria to be met by such directors, including that they are of
good character and that none of the grounds of unfitness specified in Part 1 of Schedule 4 apply. A person must not perform the relevant role if they fail the fit and proper person requirement. A
health service body that fails to comply with this requirement could have a condition imposed on
its registration with the Care Quality Commission, requiring it to comply with the requirement,
under section 12(5)(b) of the Act.
Regulations 8 to 19 lay down fundamental standards to be met by registered persons. Regulation
20 lays down a further fundamental standard to be met by health service bodies. The fundamental
standards provide that:
(a) care and treatment must be appropriate and reflect service users needs and preferences
(regulation 9);
(b) service users must be treated with dignity and respect (regulation 10);
(c) care and treatment must only be provided with consent (regulation 11)
(d) care and treatment must be provided in a safe way (regulation 12);
(e) service users must be protected from abuse and improper treatment (regulation 13);
(f) service users’ nutritional and hydration needs must be met (regulation 14);
(g) all premises and equipment used must be clean, secure, suitable and used properly
(regulation 15);
(h) complaints must be appropriately investigated and appropriate action taken in response
(regulation 16);
(i) systems and processes must be established to ensure compliance with the fundamental
standards (regulation 17);
(j) sufficient numbers of suitably qualified, competent, skilled and experienced staff must be
deployed (regulation 18);
(k) persons employed must be of good character, have the necessary qualifications, skills and
experience, and be able to perform the work for which they are employed (regulation 19);
(l) health service bodies must be open and transparent with service users about their care and
treatment (regulation 20).

Regulation 8(2) deals with who is responsible for complying with the Regulations in
circumstances where there is more than one registered person in respect of a regulated activity.
Regulation 21 states that, for the purposes of compliance with the Regulations, a registered person
must take account of guidance issued by the Care Quality Commission under section 23 of the Act
and the code of practice issued by the Secretary of State under section 21 of the Act in relation to
the prevention or control of health care associated infections. The guidance issued by the Care
Quality Commission is available from the Care Quality Commission, Citygate, Gallowgate,
Newcastle upon Tyne, NE1 4PA ( The code of practice issued by the Secretary
of State is available from the Department of Health, Richmond House, 79 Whitehall, London
SW1A 2NS (
Regulation 22 creates offences in relation to breaches of requirements in regulation 11, 12, 13(1)
to (4), 14, 16(3), 17(3) or 20(2)(a) and (3) and also includes a due diligence defence relating to any
proceedings for such a breach. Regulation 23 imposes penalties for those who commit such
Etc Etc.

4. Diagramatic representation of the Delegated Powers of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Diagramatic representation of the Delegated Powers of the Health and Social Care Act 2008

Delegatus non potest delegare which means that the delegate cannot delegate.

Principal Authority Delegated Authority Signed on behalf of Service Responsible for management of
Service Provider Provider. Services provided under Regs.

5. It is clear that the Registered person is acting for the organisation Registered to carry on an residential care facility (The Council of the isles of Scilly). It is also clear that the registered person is responsible for choosing the Nominated individual. The nominated individual has duties set out in the regulations.
6. There is a Legal construct in English Law called Delegatus non potest delegare which means that the delegate cannot delegate.
7. Under the Act and the regulations, these legal instruments delegate the power to set up an aged care facility to the registered person (Acting on behalf of The Council of the Isles of Scilly) and so that registered person cannot delegate their responsibilities to the nominated person. (Who’s duties are set out in detail in the regulations). There is no duty or authority to close the facility, only to keep it open by upholding the regulations.

The discussion above is what I understand by transparency.
a) Have the “council” fulfilled their legal obligations?
b) Have the “council” members an understanding of their responsibilities under the Various Acts of Parliament which instruct them on their governance?
c) Do elected members have an understanding of the processes required to do their jobs?
d) Do the staff understand their responsibilities under the Local Government Act 1972 and any other Act of the parliament which places legally binding responsibilities on them?
e) Do the Staff at the council have an understanding of Accountancy? In one council meeting I was appalled at the understanding of the basics of accountancy.

The answer to this is that I don’t know and make no comment about any of them, good or bad. All that I am trying to do is point out that there are laws which govern the way that Councils operate. It is my opinion that the council of the Isles of Scilly hasn’t been following those laws. My opinion was formed by a huge amount of reading and discussion with a Solicitor friend of mine who has been practicing the law for 40 years.
I also went through the Council records of meetings of the Subcommittee responsible as well as the Full Council for an 18 months period. I could not find any delegation of power (which I believe to be unlawful anyway) and no Motion or resolution to close down Park House. I wrote a report of this research which is 36 pages long. The report is appended here.

Park house timeline

I apologise to the readers of this document as it is long and a complicated subject. However that alone shows how complex Local government decision making is and how important your vote is as well.

I also apologise for any Bad grammar and spelling. The whole thing has been done in haste because of the impending elections to council.

I think Geoff Jenkins summed it up beautifully.

“We might be from Scilly, but we are not stupid”


Making the decision of who to vote for…


When I did my University degree, it was part time over 6 years, rather than three years full time.

24 subjects whilst I was working in a pressure cooker of a job wasn’t easy but I stuck at it until I had one subject left to do, and I had planned to do that as a summer semester and then finish. Normally the summer subjects were a bit less intense than the main stream ones and my last one was to be an elective subject. I looked through the list and decided on “Government Administration”. How difficult could that be? Not so hard I mused and enrolled.

Boy was I wrong. This was in the late 80’s and there were lots of things happening in Australia and for that matter the world and a subject which I thought I knew a bit about was much more involved than I could ever imagine at the time.

As well as a week of Lectures we had to write 2 major essays from a list of about 10. To really get a good mark, they needed a great deal of work. So several hundred dollars later I had several publications to add to my library and I had to read them all as well….. before attempting the Essays.

I had to buy three Biographies and several other detailed books as well as a dictionary of Administrative Terminology.

Even though I had wanted an easy time to finish my degree, I rose to the occasion and tackled the subject full on and with gusto. I am glad I did so because now I generally understand how the Parliament works and why it works like it does.

This blog is a condensed version of why we vote for candidates, what they do, what the people who are fulltime employees do (Civil servants or officers) and the rules which generally govern them.

I have recently been watching the Council of the Isles of Scilly, the place where I was born and the way that they have been working in relation to the aged community in Residential Care on the Islands.

Frankly I have been appalled at the lack of understanding of Councillors and the officers who are responsible for the day to day running of the Council services.

This blog will explain why I think that the council have gone off the rails in their thinking and how the community of the Islands might rectify the undemocratic practices, which are happening at present.


Understanding the Westminster system of Parliamentary democracy.

At the Country Level

The Head of State is the Queen or Monarch of the day and they exercise their powers through the Prime Minister and cabinet Ministers chosen by the ruling party.

The Queen opens the Parliament and reads out the ruling party’s schedule of legislation which they want to introduce.

To introduce changes to the law of the land, the ruling party must put their plans before the Parliament in documents which are called Bills, and they are then voted on and passed if a majority agree in a vote on them. Both Houses of Parliament must pass a bill for it to become Law. Once it has been passed It becomes an Act of Parliament and is signed by the monarch (a largely ceremonial act in the 21st Century).

As we all know the Parliament at Westminster, consists of two Houses, The Lower is known as the House of Commons and the Upper House is known as the House of Lords.

The people who attend the Parliament are Members of Parliament and must be elected by divisions in the country known as constituencies. They are there to represent the people. That is the House of Commons. The Lords consist of Hereditary titled Lords (Dukes, Marquis, Earls, Viscounts and Barons). As well as life peers whose title lapses when they die.

Each house has a head. In the Commons this is the Speaker and in the Lords, The Lords Speaker. Each house is run according to a set of standing Orders, which detail the way business is to be discussed and voted on. Ample time is given to Bills to be fully discussed before they are voted on and pass into Law.

Sometimes an Act of Parliament allows the responsible minister to make regulations under the Act.

At the Local Level

In the case of Local Authorities or councils there is just one chamber and that chamber consists of Councillors or members.

Councillors are just like MP’s. They are the representatives of the community that is why there are elections to vote them in. MP’s and Councillors will normally have a list of current issues which dominate a community and on which they have a stance. Individuals in the community can make up their mind who to vote for from that set of values and policies.

Members of Council (Councillors) are elected by the community to represent the community in the governance of the community.

Full Councils meetings are held periodically and individual areas of Local Government are split off to be dealt with by Committees of Council. These meetings are also governed by standing orders which must be adhered to.

The Local Authority (Council) is governed by an Act of the Parliament at Westminster called the Local Government Act 1972. (As subsequently amended).

The Local Government Act specifically states when Councils can delegate Authority and what they should do when they delegate that Authority.

This can be found here:


Other Acts of the Parliament may also impact of what a council can do. In the case of the Isles of Scilly Council one such Act is the Health and Social Care Act 2008 and the regulations made by the Minister under that Act.

The regulations can be found here.

General Discussion of this System of Government

It is important to understand the following:

1/ The system must follow a set of well established rules, worked out over hundreds of years.

2/ The members who are voted into Parliament (Members of Parliament) and voted onto Council (Members of council) are done so by the community. They are servants of the community – NOT the other way around. So if a problem occurs as it did with Park House on the Isles of Scilly, it is a failure of the system and a complete misunderstanding of the system to say it’s up to the community to fix the Park House failure. No Council meetings were held to vote on the closure of Park House.

3/ If Members of Parliament and Councillors are not responsible, then what is the use of voting them in? What other powers could the Isles of Scilly Council give to officers?

4/ Meetings are held to discuss issues arising in the community.

5/ Councillors are given pertinent information to make decisions by full time officers who are    employed by the council. Normally they are expert at what they do and should advise and recommend action after canvassing a range of options before the councillors.

6/ It is abnormal for a council to delegate it’s legally given authority to a council officer to make a decision.

7/ There is a Legal principle called Delegatus Non Posit Delegare which applies in many council decisions. This means that the delegate cannot delegate.

8/ For example the Lawful Authority, the Minister for Health has delegated responsibility for the Council of the Isles of Scilly to run a residential service for aged persons (Park House). A member of council has signed this as the registered person. The registered person (in the case of the Isles of Scilly Service at Park House) has then to Nominate an individual (Nominated Person) to carry out the duties outlined in the regulations. Those regulations are very specific; they prescribe what the nominated individual must do. They do not authorise the nominated person the delegation of the Isles of Scilly council (as the service provider) authority to close the service down.

9/ Decisions made by a properly constituted meeting of the council and/or it’s committees should be by a majority and a Quorum (a minimum number to be a properly constituted meeting) should also be present.

Does the system run like you understand it should?

It is very important that the community have confidence in their council members and that they are taking notice of their constituency. Councillors are not one man/women bands who can do or say what they like. Before they make decisions they should discuss issues with the community they represent. They are the servants of the community.


How can you change the system to make it run as it should?

1/ Make sure you read what the candidate has said in their manifesto.

2/ Make a list of the things which you would like to see happen and a list you definitely don’t want to happen.

3/ Talk to the prospective councillors and ask them questions, ask them their views of the subjects which concern you.

4/ Talk to your neighbours and ask them to ask questions about what you think should happen in your community.

5/ Ask them what they think are a councillors duties?

6/ Inform yourself about issues. Don’t believe what you read in newspapers or what the News tells you. They may just be repeating a mantra someone else has told them. That often happens.

7/ If an answer is wordy, critically evaluate the answer and ask yourself, is that credible? If they use percentages, ask where they obtained the data they are using? Ask for a copy to read. If they can’t give it to you move onto the next candidate.

8/ Expect excellence from your candidate and expect them to be well informed. Ask them where you can read about what they say? Search the internet and get a wide range of views.

9/ If you think they are trying to bamboozle you with words then ask them what they mean. I read that the Isles of Scilly council is Sui Generis. Has it got a disease? No it’s just unique that’s all. Why not say it’s unique. But not that unique that it doesn’t have to follow the set down rules and clauses in the Local Government Act.

10/ Finally if it sounds too good to be true it normally is. People have to be responsible for their actions. Don’t be afraid to make complaints or have your say if you think they are exceeding their authority. Don’t be bullied. Make an effort to fight wrongdoing wherever you see it.



Why do you vote?

Do you vote because of your values?

Do you vote because you are swayed by a political ideology?

Do you vote on religious grounds?

Or do you vote for the best candidate who will do the right thing by the community?


Candidates and parties: A look at what they say they will do and a look at what they have actually done.

Do you believe them?

Are they credible?

Can you fact check what they say?

Do they make sense or is their message just political babble and sloganeering?

Brandis Gleeson Correspondence re Guidance Note 11

Timeline of the Discussion between Attorney-General and Solicitor-General about the process of seeking advice. Released under FOI. Prepared by Vince O’Grady 19 Oct 2016.

This is the available evidence of the correspondence between the two offices. It is taken from the Freedom of Information Documents released under FOI S-G 01/2016 and  the submissions of the Solicitor-General and the Attorney-General to the Senate Legal and constitutional Affairs Committee.

The functions of the Solicitor-General are:

12(a) to act as counsel for:

                              (i)  the Crown in right of the Commonwealth;

                             (ii)  the Commonwealth;

                            (iii) a person suing or being sued on behalf of the Commonwealth;

                            (iv)  a Minister;

                             (v)  an officer of the Commonwealth;

                            (vi)  a person holding office under an Act or a law of a Territory;

                           (vii)  a body established by an Act or a law of a Territory; or

                          (viii)  any other person or body for whom the Attorney-General requests him or her to act;

12(b) to furnish his or her opinion to the Attorney-General on questions of law referred to him or her by the Attorney-General; and

12(c) to carry out such other functions ordinarily performed by counsel as the Attorney-General requests.

Guidance Note 11 is Guidance to anyone in the commonwealth who uses the Solicitor-General and the Legal Services direction is a Legally binding instrument that the Solicitor-General has to follow.

The guidance note has no penalty or legal consequence of not following it but the Solicitor-General has a legal obligation to follow the Direction.

Apparently the S-G was not happy that the people asking him for advice were following the guidance note, or conforming to his functions under the act and so requested a clarification with the Attorney-General.

A meeting was held on 30th of November 2015 where the S-G’s concerns were aired. The S-G then wrote a note to the attendees showing actions and asking for comments.  The A-G’s office did not answer.

The S-G then (in consultation) with the Australian Government solicitor and the OLSC  (Office of Legal Services Coordination, Attorney-General’s Department.) proceed to change the Guidance Note 11.

The guidance note was finalised for a meeting on 23rd March 2016 and circulated to all concerned.

NONE of the emails about the changes mention a new Legal Services Direction.

On 4th May 2016, a day before Parliament rose and 4 days before the Prime Minister visited the Governor General to call the Double dissolution election, The Attorney-General George Brandis wrote to the Solicitor-General and enclosed the revised Guidance Note 11 as well as an amended Legal Services Direction.

On 11 May 2016 the Solicitor-General wrote to the Attorney-General refuting that the A-G had carried out his legally binding duty to “Consult” with the S-G about this new Direction.

In a nutshell the S-G’s argument is that the Direction is “Ultra Vires” which basically means beyond Brandis’s power to change the terms of the 12(a) functions.

Brandis argues that he doesn’t change those powers and that because the guidance note changes are also reflected word for word in the Direction he had in fact consulted.

The Direction is what is known as a disallowable instrument and for this to happen must be put to a vote in the Senate (parliament).

There are several issues in this feud. They are.

1/ The issue of Brandis affirming in the parliament that the S-G has given legal advice on a bill before the house when he hadn’t. The S-G had given advice on several versions of a bill but not on the final bill which was different than the ones he had given advice on.

2/ The issue as to whether Brandis had consulted Gleeson on the Legal Services direction he sent to Gleeson on 4th May 2016.

3/ The issue of whether the stated functions for people under 12(a) of the Law officers act 1964 could be changed to only going through the A-G.

4/ The final issue of whether the A-G should have consulted the S-G as to whether the changes in the Legal Services direction were Legal in the first place. Clearly the S-G didn’t think they were and hadn’t had an inkling that the Direction was to be issued which sort of proves that he had not been consulted.

It is my contention that this government flys very close to the wind in terms of the legislation they want to pass and that maybe the Solicitor-General doesn’t give them the Legal opinions they want to hear. So maybe they wanted to clip his legal wings. Falling into their own trap of once again flying close to the legal boundaries. As evidence for this there are serious questions to be asked about the Turn back and repatriation policies of this government in regard to refugees. The refoulment provisions of the Refugee conventions are clear. Australian is not abiding by them.

Meanwhile the Solicitor-General has tendered his resignation. A sad day for Australia.

For completeness the reader is also advised to read the submission of the Attorney-General and the Solicitor-General on the Website of the Senate Senate Legal and constitutional Affairs Committee.

For the sake of clarity the following abbreviations mean:-

A-G                        Attorney-General

S-G                         Solicitor-General

ADG                       Attorney-Generals department.

AGS                       Australian Government Solicitor.

OLSC                      Office of Legal Services Coordination, Attorney-General’s Department.

Thursday 12th November 2015.

Letter from S-G to A-G regarding issues with the issuing of advice on Bills before the parliament and asking for a meeting to discuss. Copy to The Secretary of the AGD.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 18-21(incl)/48

Monday 30th November 2015

Meeting with A-G, S-G re Legal issues.

Tuesday 8th December 2015.

Email from Solicitor-General’s office to Joshua Faulks, Executive advisor to the

Secretary, Ian Govey (AGS) Time 4.11.PM.

Subject of email:  Meeting between the A-G, S-G, Secretary and Ian Govey, 30 November 2015 – meeting notes


Body:    Typed Meeting Notes and Action items of 30th November 2015 for the A-G and

Secretary of the Attorney-General’s department for information and comment.

Meeting Outcome point 2/ Discussion on Guidance Note 11.

Reference Document 1 of FOI S-G 1/2016. And

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 22 and page 26 /48

Note on Page 26 the time of the email is 4.12 PM

Tuesday 8th December 2015.

Email from Solicitor-General’s office to Ian Govey (AGS), Executive advisor to the

Secretary, Time 4.27.PM.

Subject:  FW: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Grateful to pass to Secretary.Also grateful for your (Ian Govey’s) comments.

Reference Document 5 of FOI S-G 1/2016.

Wednesday 9th December 2015

Email from Executive advisor to the Secretary to Petra Gartmann.

Subject: FW: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Body:    Petra

I am assuming your Branch would take the lead on providing any comments on the

Suggest revisions to guidance note 11?

Reference Document 7 of FOI S-G 1/2016.

Friday 11th December 2016.

Email from Executive assistant to Ian Govey (AGS) to Counsel assisting the S-G.

Time 11.54 AM.

Subject: Meeting between the A-G, S-G, Secretary and Ian Govey, 30 November 2015 – meeting notes


Body:    I agree with these notes but would like to add a 5th point.

  1. Consideration be given to whether a direction to AGS is required to facilitate AGS

Providing the rest of AGD material that AGS has not been authorised to provide.

I’d be happy to elaborate on why I raised this issue at the meeting if it would assist



Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 24/48

Wednesday 16th December 2015

Email from Legal Assistant to Ian Govey to S-G. Time 4.35.PM.

Subject. RE: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Need (useful) to have a meeting between Ian Govey and S-G or his representative.

Reference Document 5 of S-G 1/2016

Wednesday 16th December 2015

Email from Legal Assistant to Ian Govey to S-G. Time 5.49.PM.

Subject. RE: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Apologies something about an email address.

Reference Document 5 of S-G 1/2016

Wednesday 16th December 2015

Email from Counsel assisting the S-G to Ian Govey Time 6.32.PM.

Subject. RE: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Happy to meet or discuss over phone next week.

Reference Document 5 of S-G 1/2016

Friday 18th December 2015

Email from OLSC officer to Counsel assisting S-G’s office. Time. 9.03.AM

Subject:  RE: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Body: Further the emails below between , and our Branch Head Petra Gartmann,

OLSC has prepared some comments in relation to the proposed revisions to Guidance Note 11.

We would appreciate your advice whether your proposed discussion timeframe

would allow us a short indulgence of time, to allow consultation with Jim Faulkner

and his team, and others as may be necessary.

Reference Document 7 of S-G 1/2016

Friday 18th December 2015

Email from Counsel assisting S-G’s office to OLSC officer. Time. 9.54.AM

Subject:  RE: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Body: Thank you for speaking with me earlier.

As discussed, it would be very helpful if we could receive comments by the end of

today or first thing Monday

Reference Document 7 of S-G 1/2016

Friday 18th December 2015

Email from OLSC officer to Counsel assisting S-G’s office. Time. 4.32 PM

Subject:  RE: Amendment to Guidance Note 11 – briefing the SG – proposed

Comments [DLM=Sensitive:Legal]

Body:    OLSC comments on revisions to Guidance Note 11 on Briefing the Solicitor-


                                                Suggestions attached.

Reference Document 8 of S-G 1/2016

Friday 18th December 2015

Email from Counsel assisting to S-G’s office OLSC officer. Time. 4.45 PM

Subject:  RE: Amendment to Guidance Note 11 – briefing the SG – proposed

Comments [DLM=Sensitive:Legal]

Body:    Thank you for those comments.

I will discuss them with the Solicitor-General and contact you at a later date

for further discussion

Reference Document 8 of S-G 1/2016

Friday 18th December 2015

Email from OLSC officer to Counsel assisting S-G’s office. Time. 4.58 PM

Subject:  RE: Amendment to Guidance Note 11 – briefing the SG – proposed comments [DLM=Sensitive:Legal]

Body:    Thanks – we greatly appreciate the extra time afforded us to crystalise some

of our thinking. We are very happy to continue the discussion.

Reference Document 8 of S-G 1/2016

Tuesday 22nd December 2016.

Email from Counsel assisting the S-G, to Executive assistant to the Secretary and Ian Govey Time 12.18 PM.

Subject:  Meeting between the A-G, S-G, Secretary and Ian Govey, 30 November 2015 – finalised meeting notes


Body:    Paraphrased— Finalised meeting notes sent to adressees. Asked to pass onto


Please ask the Secretary of AGD to comment and once that is done will pass it to Josh Faulks (Deputy COS to A-G) for A-G’s attention.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 26/48

Thursday 24th December 2016

Email from Executive assistant to secretary AGD Time 11.53 AM.

Subject:  Meeting between the A-G, S-G, Secretary and Ian Govey, 30 November 2015 – finalised meeting notes


Body:    Secretary has no concerns with the notes.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 26/48

Tuesday 5th Jan 2016

Email from Legal Assistant to Ian Govey to various AGS personnel and CC Counsel

Assisting S-G. Time 2.39 PM.

Subject: FW: Proposed changes to Guidance Note 11 [DLM=For-Official-Use-Only]

Body:    I spoke with Counsel assisting in late December about the changes proposed

by the SG’s previous counsel assisting to Guidance Note 11.

Reference Document 10 of S-G 1/2016

Friday 4th March 2016

Email from Counsel assisting S-G to Moraitis, Chris; Anderson, Iain; Faulkner, James; Govey, Ian;

Howe QC, Tom; Gartmann, Petra Time: 12.16 PM

Subject: Guidance Note 11 – proposed changes [DLM=Sensitive:Legal]

Body:       Dear all

I attach the most recent version of the Solicitor-General’s proposed changes

to Guidance Note 11.

The changes take into account the suggestions AGD and AGS made on the

draft this Chambers circulated in December 2015.

I would be most grateful if you could provide any comments you have on

this version by close of business on 11 March 2016.

As always, happy to discuss.

Kind regards

Contains files of Guidance Note 11 4 March 2016 and Markup of same 4

March 2016.

Reference Document 15 of S-G 1/2016

Friday 11th March 2016.

Email from OLSC officer to Counsel assisting the S-G  Copies Gartmann, Petra; ;

S-G_Briefing Time 5.34 PM.

Subject: Guidance Note 11 – 4 March 2016 [SEC=UNCLASSIFIED]

Body:       Dear Counsel assisting.

Thank you very much for all your hard work in relation to the preparation of

this document.

We have suggested some minor changes for your consideration (these are marked-up for ease of reference).

Please call me if you would like to discuss..

Contains redacted version of the Guidance note.

Reference Document 16 of FOI S-G 1/2016.

Friday 11th March 2016.

The Office of the Attorney-General receives a copy of the suggestions the

Solicitor-General has made to modify Guidance note 11.

Sub 05 deals with Paragraph 18 of the Solicitor-Generals suggestions


Reference Document Sub 05 to the Senate Legal and constitutional Affairs Committee.

Paragraph 19 Page 6/32

Monday 14th March 2016.

Email from Counsel assisting the S-G to OLSC officer Copies to Gartmann, Petra; ;

S-G_Briefing; plus redacted. Time 12.54 PM

Subject: RE: Guidance Note 11 – 4 March 2016 [SEC=UNCLASSIFIED]

Body: Thanks OLSC officer, that is very helpful

Attached was an image of acknowledgement to the Traditional owners of

the land.

Reference Document 16 of FOI S-G 1/2016.

Friday 18th March 2106

Email from Tom Howe (AGS) to Counsel assisting S-G with copies ; ; Moraitis, Chris;

Anderson, Iain; Faulkner, James; Govey, Ian (AGS); Gartmann, Petra Time 2.09 PM.

Subject: RE: Guidance Note 11 – proposed changes [DLM=Sensitive:Legal]

Body:    Hello

Please find enclosed input from Ian and me, based on the clean version of

the document circulated yesterday by you.

Hopefully the suggested changes are self-explanatory. Cheers,


Redacted Guidance Note 11.

Reference Document 17 of FOI S-G 1/2016.

Friday 18th March 2106

Email from Counsel assisting S-G with copies to Tom Howe (AGS) copy Ian Govey

(AGS). Time 2.15 PM.

Subject: RE: Guidance Note 11 – proposed changes [DLM=Sensitive:Legal]

Body:    Hi Tom

Thank you for those suggestions (all of which are indeed self-explanatory).

I appreciate you and Ian taking the time to provide the suggestions.

Kind regards

Reference Document 17 of FOI S-G 1/2016.

Friday 18th March 2106

Email from OLSC officer to Counsel assisting S-G.

Copies to redacted and Gartmann, Petra. Time 2.30 PM

Subject: Guidance note 11 [DLM=Sensitive:Legal]

Body:    Dear Counsel assisting,

Please find attached the collated changes of OLSC, OCL, AGS OGC and Tom

Howe QC PSM to the revised draft of Guidance Note 11, in both clean and

mark up.

Please feel free to give me a call if I can be of any further assistance.

The collated briefing for legal issues meeting will hopefully be out before

cob today

Reference Document 18 of FOI S-G 1/2016.

Friday 18th March 2106

Email from Counsel assisting S-G with copies OLSC officer.

Copies to redacted and Gartmann, Petra. Time 2.35 PM

Subject: RE: Guidance note 11 [DLM=Sensitive:Legal]

Body:       Thank you

I will need to run this final version of the Guidance Note by the Solicitor-

General before it is sent to the Attorney’s Office together with the other

brief materials.

I do not anticipate the Solicitor-General will have any objections to the changes made since I last circulated the Guidance Note. However, out of an abundance of caution, I would be grateful if you could wait until I have had an opportunity to speak with the Solicitor-General. The Solicitor-General is in the High Court this afternoon and I will not have an opportunity to speak with him about the Note until Monday afternoon.

I hope that does not create too much of an inconvenience.

Kind regards

Monday 21st March 2016.

Email from Petra Gartmann (Assistant Secretary office of Legal Services Coordination

Attorney-General’s Department) to Brandis, George; Gleeson, Justin; Moraitis, Chris; Govey, Ian

(AGS); Anderson, Iain Copies to Manning, Greg; ; ; Lambie, James; Howe, Tom (AGS);Time. 5.00 PM

Subject of email: Legal Issues Meeting – 23 March – Briefing Material [DLM=Sensitive:Legal]

Contents (attached)   agenda

monthly report for discussion

current Guidance Note 11 (of July 2015)

revised Guidance Note 11 (both a clean copy and a marked up copy).


Item 4 of 5 on the Agenda was Guidance Note 11, Discussion to be led by

The Solicitor-General. (Agenda Items 1,2,3,5 redacted)

Reference Document 2 and Document 21 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 29 and Page 33/48

Monday 23st March 2016.

Meeting Held.

Tuesday 24th  March 2016.

Email from Petra Gartmann (Assistant Secretary office of Legal Services Coordination

Attorney-General’s Department) to Brandis, George; Gleeson, Justin; Moraitis, Chris; Govey, Ian (AGS); Anderson, Iain Copies to Manning, Greg; ; ; Lambie, James; Howe, Tom (AGS); ; Faulks, Joshua plus redacted Time. 3.18 PM

Subject: RE: Legal Issues Meeting – 23 March – Briefing Material [SEC=PROTECTED,


Body:    Good Afternoon

I refer to yesterday’s Legal Issues Meeting and confirm the following

action items:

  1. Attorney-General to consider proposed changes to Guidance note 11

and come back with his views in the week commencing 4 April.

Reference Document 21 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 29/48 Time of this email is 3.17 PM

Tuesday 12th April 2016

Email from Counsel assisting S-G to Petra Gartmann. (OLSC) copies to OLSC officer. Time 12.01 PM.

Subject: RE: Legal Issues Meeting – 23 March – Briefing Material [SEC=PROTECTED,


Body:    Hi Petra

The Solicitor-General has asked me to check with you whether you have heard anything from the Office about Guidance Note 11.

Kind regards

Reference Document 21 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 32/48

Tuesday 12th April 2016

Email from Petra Gartmann. (OLSC) to Counsel assisting S-G copies to OLSC officer. Time 12.07 PM.

Subject: RE: Legal Issues Meeting – 23 March – Briefing Material [SEC=PROTECTED,


Body:    Hi

I have not yet heard anything but can follow up with the office on Thursday to get a sense of timing (The AG and James Lambie are travelling at the moment and unlikely to have time to speak with me until after they have returned hence Thursday is the earliest I can seek the update)


Reference Document 21 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 31/48 (Destinations not redacted)

Friday 29th April 2016-10-19

Email from Counsel assisting the S-G to Petra Gartmann (OLSC). Copies OLSC officer. Time 2.45 PM.

Subject: RE: Legal Issues Meeting – 23 March – Briefing Material [SEC=PROTECTED,


Body:    Hi Petra

I just wanted to follow up to ask if you had any further updates on Guidance Note 11.


Reference Document 21 of FOI S-G 1/2016.

Friday 29th April 2016.

Email from, Petra Gartmann (OLSC) to Counsel assisting S-G Copies to OLSC officer. Time 5.26 PM.

Subject:               RE: Legal Issues Meeting – 23 March – Briefing Material [SEC=PROTECTED, DLM=Sensitive:Legal]

Body:    Hi

I understand the AG is writing directly to the SG about this.


Reference Document 21 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 31/48

Wednesday 4th May 2016.

Letter from the Attorney-General to the Solicitor-General with a copy of New Guidance Note 11 and an amendment to the Legal Service Directions 2005.

Both are attached

There is a declaration under Section 17 of the Legislative Instruments Act 2003 that

the A-G has consulted.

Section 55ZF of the judiciary Act 1903 gives the A-G the power to make Legal


Reference Document 3 of FOI S-G 1/2016.

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 34/48

Tuhrsday 5th May 2016.

Last day of parliament before the DD Election.

Sunday 8th May 2016.

Malcolm Turnbull Visits to Governor General and calls a Double Dissolution Election.

Wednesday 11th May 2016.

Letter from S-G to A-G.

Subject:                               None.

Body: Paraphrased—- Refers to letter of 4th May re Guidance Note and Legal Services

Direction. S-G says “I do not accept that the Direction was the subject of prior consultation

with me.”

Reference Document Sub 03 to the Senate Legal and constitutional Affairs Committee.

Page 48/48

Some more Pertinent Facts about the CFA/UFU Dispute in Victoria.



Note – this article should be read in conjunction with my previous article



The purpose of this article is to put fire fighting in Victoria into its historical context. Then, ask some pertinent questions which will make the reader think about the current CFA/UFU dispute and the Political interference by the Federal Government.


I want to explore what the Fire Service people actually do and how well they are appreciated by the representatives of the people, the Government.


It was obviously a good idea to have a Fire Service. The Melbourne Fire Service came into being in 1891 after the first fire brigade Act was passed in 1890. That was 125 years ago. Before that volunteer Brigades existed back as far as 1845. In 1889 five fire fighters were killed on the job.


The population in Victoria in 1890 was 1,125,193. The City of Melbourne had a population of 490,000.   After the formation of the Melbourne Fire Brigade there were 59 permanent fire fighters.


In 2016 Melbourne has a population is 5.2 Million with 2200 Permanent fire fighters in the Metropolitan Fire Brigade.

There are 1000 Professional Firefighters in the CFA in 2016 and just under 36,000 operational Volunteers. Not the 60,000 claimed by the Liberal party.

The Enterprise bargaining agreement for the CFA/UFU members only covers Professional paid Fire fighters.

For regional Victoria the Country Fire Authority Board was set up in 1891.

27 Metropolitan Fire fighters, since 1837, have lost their lives protecting the community.

67 CFA Fire Fighters have lost their lives since the formation of the CFA in 1944.


What do Fire fighters do and what are the risks doing it?


This may seem like a silly question but when you look at what they do, it’s a dangerous job in several ways, not least mentally.

DUTY                                                                     HAZARD

House Fires:                A variety of materials with a different chemicals composition

Smoke and  fire.

Industrial premises: A variety of materials with much more different and toxic  Chemicals.

Smoke and fire.

Wildfires:                      Intense heat and speed of advance.  Difficult terrain and access.

Ingress and Egress.

Road accidents:            Busy roads and Traffic whilst working on Accidents.

Seeing horrendou injuries and death.

Natural Disasters:      Storms, Lightening and other adverse weather conditions and

consequential damage.


These are a few of the things all fire fighters do. It is therefore most important that they do them in the safest possible way. This is a most important point. To fight a fire the professional needs to be trained in different types of fire, accidents and natural disasters.


Types of Fire

Class A                                  Paper and Wood.

Class B                                  Flammable liquids eg Paint and Petrol

Class C                                  Flammable gases eg Butane and Methane

Class D                                  Flammable Metals eg Lithium,Potassium and Magnesium

Electrical                              Electrical Equipment eg Computers and generators

Class F                                   Deep fat fryers eg Chip pans.



This is a very basic classification and the fire fighter needs to have an understanding of the best way to extinguish the particular class of fire – whether to use water, foam, dry powder, CO2 or wet chemical.




The MFB 2014 –15 Annual Report says that the MFB were called out 36,923 times in that year.

The CFA 2014 – 15 Annual Report says that the CFA had 40,557 incidents in the year, with 82,880 turnouts.


Whatever the number, these are busy people. They need a lot of training to meet the competencies required for the job.

Fiskville Training Centre

The major Training Base for the CFA was at Fiskville near Bacchus Marsh. It opened in 1972 and was closed in 2015.

As the training centre evolved different training was done in order to closely emulate the different types of fire described above. Many third parties trained there, including the MFB.

In 2011 the Herald Sun newspaper broke a story about the safety at Fiskville. The first report was about Brian Potter who was seriously ill. Brian had been Chief Instructor at Fiskville, He lived there.  In response to his recurrent illnesses, he sought Information and a meeting with Senior CFA staff to discuss the possibility of chemical contamination at Fiskville. This was in June 2011. Unaccountably the meeting he was supposed to have with a board member was cancelled. In December Brian went to the paper. He had been Chief Officer of the CFA.

Part of the newspaper report is worth highlighting.

“He knows nine from Fiskville who have died – cancers, brain tumours, heart failure, non-Hodgkin’s lymphoma, multiple myeloma. There are probably more he doesn’t know about. He wonders why the CFA isn’t helping them and their families.”   And then this:

“Brian remembered there was a report hidden deep in CFA headquarters detailing some of the chemicals handled carelessly at Fiskville. He had heard rumours that something dangerous was contained in those drums.

A few months ago, he called a senior member of the CFA and told him his fears. They picked a morning and made a time to meet a week or two later.

“They have a duty of care to him, and to everyone else that may be affected,” Diane (his wife) says.

But the CFA man didn’t show up. Brian hasn’t heard another word from CFA headquarters.”

The report also says in response to the cost of Petroleum based products used in the production of suitable fire training exercises.

“So CFA workers would scour Victoria for combustible waste – there was plenty of that stuff. Burning pad supervisor Ken Lee remembers taking out the Fiskville tanker and sucking up the sludge from the bottom of service station tanks, collecting old fish-n-chip shop oil, air force waste and paint and petrochemical factory left-overs.

It was the worst of the worst gunk. Everyone in the business knew Fiskville was a willing dumping ground.”

Another  Herald Sun report claimed deaths from contamination and seriously ill CFA staff from contaminants at the site. The report talks about dangerous chemical exposure.

In response to the Herald Sun story, the CFA Board immediately appointed (December 2011) an “independent” expert to examine the newspaper claims.  Professor Robert Joy, Chaired the report and his report is known as the Joy report. Published June 2012.

The CFA response to the Joy report can be viewed here.

Part of that 21 page response reiterates the following from the Joy Report.

“The conclusions of Professor Joy (pages 140 –142 of the Report) are reproduced below.


 The historical risks to staff and the environment at Fiskville associated with the use of a range of flammable materials in training will never be fully known.”


As part of his review Professor Joy had access to CFA records. This is important because of the later Parliamentary enquiry.

The response said this.

“We also acknowledge the extent of the technical and support work that needed to be done to ensure the Investigation was robust and independent. Four million documents were searched and a targeted review was undertaken of 30,000 documents with 8,000 documents deemed relevant to the task. A range of environmental studies were undertaken and individual interviews needed to be structured so that they were thorough and could be relied upon to clarify the issues presented to Professor Joy and his team.”


The Joy report actually said this about documents. Page 28/169


“In January 2012, the IFI retained KordaMentha to undertake an independent search of CFA documents (both physical and electronic). KordaMentha searched an estimated four million records at 18 CFA sites, the Public Records Office and third party document stores. Record keeping practices varied across these sites, but were generally poor, with very limited and inaccurate cataloguing. One benefit of the Investigation has been to provide the CFA with an electronic catalogue and copies of a large body of records, many of which could not be reviewed within the timeframe of the Investigation.

In the time available, the Investigation undertook a targeted review of some 30,000 documents with about 8,000 assessed as most relevant reviewed more closely. The Investigation used e-document search tools and analysis software to import, classify and query information. Experienced analysts and investigators then evaluated information and developed rigorous lines of argument and conclusions.”



Chemicals used at Fiskville.


The Joy report said this at page 10/169


“Like flammable substances, the sources and manner of supply of foam concentrates to Fiskville historically is unclear and largely undocumented. Although a couple of documents were found from the 1990s noting product names for some foams, the Investigation did not locate documentary evidence confirming how foam was supplied to Fiskville. Some was likely to have come from commercial suppliers. However, some investigation participants noted that some foams were acquired through donations.


A variety of firefighting foams have been used in training at Fiskville. These include: high expansion foam, designed principally for flooding enclosed spaces and Class B foams used on liquid fires. The second group includes: synthetic aqueous film forming foams (AFFF) and alcohol resistant aqueous film forming foams (AR-AFFF) and fluoroprotein foams (FP), a type of biodegradable foam based on animal or other protein sources with the addition of a fluorinated surfactant. Both AFFF and AR-AFFF contain the fluorosurfactants perfluorooctanoic acid (PFOA) or perfluorooctanesulfonic acid (PFOS). Both of these are readily absorbed by the body after ingestion and are very slowly eliminated. Since the late 1990s, PFOA and PFOS have been a focus of concern over their potentially harmful effects on human health and the environment.”

Material Safety Data sheets have been in existence for a long time. What good salesman would sell a dangerous product without explaining that it may have risks to the user? Ethical seller of chemicals for instance would have a moral duty to disclose and have had for (arguably) hundreds of years.

The Original Comprehensive Occupational Health and Safety Act in Victoria was in 1985 and whilst a search of the Act does not mention the word Chemical we all know that chemicals are Hazardous and that is the language used.

This interesting academic document discusses the History of Material Safety data Sheets (MSDS)

In the Joy Report the first mention of Material Safety Data sheets is in 1996 on page 123/169.

“a decision was taken to provide Material Safety Data Sheets (MSDSs) and to label all dangerous goods; “

Documents relating to the Joy enquiry. Those scrutinised and those not, due to time constraints.

Page 28/169.

“The IFI was able to identify and review a number of key, known documents from the outset of its work obtained directly from CFA or key participants. However, the IFI received most of the documentation from the KordaMentha search from mid-April 2012. By the beginning of May, approximately 30,000 potentially relevant documents were provided to IFI. These were further reviewed and some 8,000 deemed most relevant were examined through a qualitative analysis system (outlined below). A process was established to escalate documents most likely to be relevant to the Investigation. By the end of May a further 50,000 documents were provided by KordaMentha. This largely reflects the size and complexity of the search process. Through May the Investigation scaled back review of documents to focus on the KordaMentha database will be passed to CFA following the Investigation. KordaMentha also undertook an extensive search of electronic documents but, this was not completed in time for the Investigation to consider. However, the Investigation believes the majority of the key documents from the period of interest, 1971-1999, were hard copies and would have been discovered through the search and interview process.

Where potentially relevant documents were identified, these were electronically scanned and labelled by specialist contractors, and stored in a Relativity database by KordaMentha and accessed solely by the IFI.

This scanning process presented challenges – such as scanning fragile, bound books or microfiches – and extended the timeframe until the documents were available to the Investigation. KordaMentha has also captured and stored documents produced in the course of the Investigation, including documents provided by EPA, WorkSafe, participants and researchers.

A single, secure, electronic repository of documents potentially relevant to the Terms of Reference is a major legacy of the Investigation. As well as providing a key resource for the Investigation, KordaMentha’s work will provide CFA with an accurate catalogue of many of its most critical records, which can be readily searched, and electronic copies of important degrading historical documents. This database will be provided to CFA following the Investigation.”


The relevance of this document quote from the Joy Report becomes readily apparent when we read of the limitations on his report. Page 32/169

“Key Limitations of the Investigation

While the Chair considers a thorough investigation has been conducted

in response to the Terms of Reference, there were a number of

significant limitations which have been canvassed in this chapter.

Key limitations include:

n The administrative nature of the Investigation, and therefore the

lack of ability to compel witnesses or documents

n The short time frame for the Investigation relative to its complexity

n The extensive, complex document search required

n The large, sensitive interview program undertaken

n Seeking to reconstruct events and practices which occurred over

the past forty years

n The lack of documentation of informal and historical practices

n The challenge for witnesses to recall matters that happened so far

in the past.”


 Environment, Natural Resources and Regional Development Committee Inquiry into the CFA Training College at Fiskville

Following the change of Government in November 2014, the incoming Andrews Labor Government instigated the above Inquiry on 23rd December 2014.

The Interim report was tabled in June 2015

Before the final report however a special report on the non production of documents was released in November 2015.

Their final report was tabled in Parliament on 24thMay 2016. It is 528 pages long.

It is instructive to note that this was nearly a month after the Liberal party had registered the Hands off the CFA website.

The terms of reference were simple.

  1. a comprehensive historical study of pollution, contamination and unsafe activities at Fiskville between 1970 and the present day;
  2. a study of the health impacts on employees, residents and visitors between 1970 and the present day;
  3. a study of the role of past and present executive management at Fiskville;
  4. an assessment of the feasibility of decontamination/rectification of the training site; and
  5. recommendations as necessary to mitigate ongoing harm and to provide justice to victims and their families.

* On 10 March 2016, the reporting date was extended to 16 May 2016.


Yet although the Joy Inquiry did an enormous job on collecting collating and making an electronic database of documents, The Board minutes, which were requested by the Committee of Inquiry, were not produced.

The Special Report states at page 8/28.

“The CFA Administration has issued many assurances to the Committee that it wants to cooperate with the Fiskville Inquiry. In spite of this the Committee had to issue summonses in order to access critical information. We are now forced to table this report to Parliament due to documents not being produced under the terms of the summons relating to CFA Board papers.

This special report details the extensive withholding of information that is crucial to the Committee’s understanding about what happened at Fiskville from 1970 to the present.

These documents and information being withheld go to the very heart of the terms of reference we are required by Parliament to investigate. For example, we know that requests for information regarding chemicals used at Fiskville were made to the board in 1987. Yet as the report demonstrates, the CFA has not provided any of the minutes from the 22 meetings held that year.”


The chemicals used at Fiskville and their characteristics.

For years Governments and Agencies have known that the characteristics of chemicals are an important factor to the Health and well being of Human beings. This is illustrated by the use of chemical agents in the first war to gain advantage over the enemy.

Some Questions

1/ Isn’t it a logical conclusion that the use of Chlorine in the first War, with the damage it can cause that such specific knowledge would have been transferred to the training College at Fiskville, where chlorine was also used in training?

2/ And that the Management of the CFA would have been wary of the use of chemicals when they had this specific entrenched knowledge in the Australia/Victorian psyche?

3/  Why, when a large relational database had been assembled under the Joy Inquiry, the CFA management refused, under a summons of the Parliament to produce documents?

4/  Why, when it has now been well established that the chemicals in the type of foam used in training at Fiskville ( ie PFC’s (Perflorinated Chemicals), notably PFOS (Perfluorooctane sulfonate ) and PFOA (perfluorooctanoic acid) are stably persistent and their use has been banned, did the CFA not give the Parliamentary enquiry access to their database?

For the assistance of the readers this link goes to the material Safety Data sheet of perfluorooctanoic acid.

On the same website there is an abstract of Studies in Japan which conclude (Report of 2005) that these substances cause cancer.

Whilst these links may not be conclusive evidence of their adverse nature to human inhalation, ingestion or skin contact, the reports are worrying.

5/ There is however a much more important question about one of the 14 Previous CFA Board’s stated objection (In clause 78 of the EBA) to  the use of Potable (essentially clean drinking water) in the training environment that the UFU wanted?

Why, after two Enquiries and Health and Environmental Studies; where it was proven that Fiskville was contaminated with PFOS and PFOA contaminants in the Dams used to store firefighting (recycled) water, did they object so strongly, when they had themselves (that is the CFA) installed two tanks (Capacity 240,000 each) in June and October 2012 at the Fiskville facility so as not to use the contaminated Dam run off from the fire training area and which used potable water for training?

This only covers Chemical Contamination. What biological hazards does non – potable water used in training contain?

6/ In light of the above what lessons have the Board and management learned of occupational Health and Safety priorities of an employer? (Oh&S Act Victoria of 1985).

It is only recently that the MFB have had uniforms which have a barrier so that fluids cannot flow into or out of the uniform at a fire ground. Because of the UFU, the whole of MFB and CFA are now issued with this Personal Protective Equipment.

7/ Consultation about equipment for use on a fire ground:  Isn’t it a good idea to let the people who fight the fires actually have a say in the choice of the best equipment to drive to a fire and fight it?

That is the way I read the consultation clause. Didn’t the CFA want to consult with their experts as to the best of equipment? The choice of the best equipment is actually a cost saving exercise, the quicker the brigade can get to a fire and put it out, the lower the cost to the community and it’s also much safer.

8/ Michaelia Cash and 7 on the fire ground.

On 12th August the new CFA board and the UFU issued a joint statement of intent on how this clause would work.

Here is the wording of that joint statement.

Seven on the fire ground

         6.It is the mutual intention of the parties that clause 77.5, 43.2.7 and 44.13 of the Agreement operates in the following manner:

The clause only relates to integrated stations in districts 2, 7, 8, 13, 14, 15 and 27, and toWarrnambool, Shepparton and Mildura once the additional resources to achieve seven professional fire fighter positions per shift in Schedule 1 are in place.

The requirement only applies to professional fire fighters, it does not prevent volunteers from providing the services normally provided by volunteers.

In the integrated stations where the provision applies, it requires a minimum of seven professional fire fighters to be dispatched to fire ground incidents before commencement of safe fire fighting operations. It does not require seven professional fire fighters to be physically at the fire ground before the commencement of fire fighting operations.

 Incident controllers maintain their discretion as to the management of resources in the interests of public safety after undertaking a risk assessment/size up upon arrival at the fire/incident.


9/ The role of volunteers.

This is covered in clauses 7A.1 and 7A.2 in the EBA.


7A.1 The role of volunteers in fighting bushfires and maintaining community safety and delivering high quality services to the public in remote and regional areas and in integrated stations, is not altered by this Agreement.


7A.2 For the avoidance of doubt, except as provided in Clause 60- Peer Support, nothing in this agreement shall prevent volunteers in the CFA from providing the services normally provided by such volunteers without remuneration.

So in part A Nothing in the agreement to do with Volunteers is altered and in part B NOTHING shall prevent volunteers in the CFA etc.

What part of that don’t the previous Board or the VFBV board not understand?


10/ The calling in of the Equal Opportunity and Human Rights Commission by the previous CFA board to rule on the legality of the EBA.

Why did they do this? Any problems that the EBA might pose would only affect Professional fire fighters, because (apart from Part 6, Sexual harassment), the Equal Opportunity Act does not cover volunteers.


11/ in light of the clause 7A.1 and 7A.2 above and the revelations about the Equal Opportunity Act not covering Volunteers, why are the Prime Minister and the Employment Minister seeking to amend the Fair Work Act to protect the CFA Volunteers when they do not need protecting because the EBA has nothing whatsoever to do with them?


12/ Why when the Liberal Party formed Government under Bailleau and then Napthine, did they amend the Equal Opportunity Act to cover Part 6 (Sexual harassment) and not cover volunteers under the whole Act?


13/ Why did the Liberal Party register the website handsoffthecfa  (now blank) on 28th April 2016 before the Federal Election was called? Why did Malcolm Turnbull become involved? Why did the VFBV employ a graphic artist who produced the hands off the CFA Posters which are available for download on their website?  These were produced on 3rd June 2016.

14/ And finally again Why did the Board refuse to give the documents of their Board Meetings to the Parliamentary Committee of Enquiry? What had they to hide? Is the whole thing a “Look over there exercise?” Was Daniel Andrews correct to sack an unresponsive board?

I leave you to ponder the answers to these Questions.


Even Erin Brockovitch is up with the scandal of these Fir Fighting chemicals in our environment

I see this EBA dispute as no different from the demonising of the Union movement by the Liberal Party. Their cynical use of a group of ordinary people who only want to help their communities is a disgrace. They pretend to care about volunteers but the most damning thing about their actions is that when in Government they amended the Equal Opportunity Act to cover volunteers for only one part.


They only care about Occupational Health and Safety when they can get political advantage from it. They certainly don’t care about the CFA volunteers and have tricked them big time.

Meanwhile Liberal Dog whistle politics about the Unions go on apace.








Did the Liberal CFA Lies lose the Labor Party Government?

In an extraordinary rant on Election Night, Malcolm Turnbull had a few harsh words to say about “Mediscare”

Sky News reported him as saying

“Mr Turnbull says the coalition has face ‘most systematic, well-funded lies ever peddled in Australia’ with Labor and the union movement spending millions of dollars frightening vulnerable Australians.

Thousands of Australians received text messages on election day purporting to be from Medicare, warning of Mr Turnbull’s plans to privatise the system.

‘Time is running out to Save Medicare,’ it said.

Mr Turnbull said police would ‘no doubt’ investigate the incident.

He accused Labor of boasting about how skillfully it had lied on Medicare, describing it as a ‘shameful episode in Australian political history’.

‘This is the scale of the challenge we faced,’ he said.

‘And regrettably more than a few people were misled.’

Attorney-General George Brandis said the Liberal Party had referred the matter to police”


But given the amount of Evidence that exists as to the gutting of Medicare, Australians have a lot of reason to be anxious of Liberal Policy changes which will see their Prescriptions, Doctor’s visits and Pharmaceutical tests rise dramatically.

But I would like to report in detail today why I think the Liberal Party are much more devious and misleading in their scare campaigns than the Labor party.
In fact they make the Labor party look like rank amateurs.
Lets examine the CFA and It’s dispute with the United Firefighters Union.
First we will start with some Historical Fact.
1/ The CFA is a State government Entity, run by a Board which reports to the minister for Emergency Services
In it’s Annual 2015 report The firefighting capability of the CFA is spit into two parts. There were 35,367 operational Firefighting Volunteers with 21,944 Volunteer support personnel. With a Professional (paid) firefighting compliment of 972 operational and 935 Professional (paid)  support staff.
2/ The only people who are covered by the Union Agreement are paid professional firefighters.
3/ The negotiations are conducted between the Union and representatives of the CFA board.
4/ The previous Enterprise Bargaining agreement expired on 30th September 2013.
5/ The Andrews labor government came into being on 4th December 2014 So the UFU Enterprise bargaining agreement with the CFA had been expired for 14 months and under a Liberal Government. It is notable that negotiations had probably been in train for 9 Months before the agreement expired. (The normal procedure).
6/ The EBA (version 17.4) document which is on the CFA website is 396 pages long.
7/ The CFA has 14 Areas of concern with this document.
8/ The Equal opportunity and Human Rights Commission, at the behest of the CFA have written a Report on the EBA.
9/ The Fair Work commission has had the matters of dispute before it since November 2015 and a very interesting report of the proceeding leading up to the commissioner’s final 6th June Document is also on the CFA Website.
This is an interesting read, particularly where the commissioner says
“In the more recent conciliation sessions it appears to me that the CFA have sought to
ignore the long and sensitive bargaining process that has been before me since November 2015.
In the context of good faith bargaining and the general clause by clause approach that has been adopted before me, I find it difficult to now disturb the agreements that have been made during the course of bargaining. It is also important to note that the reason or basis upon which it was put to me that the CFA are at liberty to re-agitate matters previously agreed was not clear.”
With these facts at hand it is interesting to now look at the Media Coverage of the issues.
A)The first incident of note is the Announcement on 21st March of Parliament being recalled on 18th April for the Senate to consider the ABCC Bill. If the Bill Didn’t pass the budget would be brought forward a week and a Double Dissolution Election called.
B) we then move to a Herald Sun (Murdoch Press) report of April 20th Which said:-

“Opposition spokesman Michael O’Brien said Mr Andrews was in dangerous territory.


“It’s extraordinary that Daniel Andrews and his cabinet are so divided that the Premier is undermining the Emergency Services Minister by having secret meetings with the union bosses behind the back of the responsible minister.”



“A senior fire services source said the proposed terms of surrender would lead to the union getting the vast majority of its claim, published by the Herald Sun last year.


One senior source said the plan would also “marginalise volunteers”.


Several sources have confirmed that the CFA board and chief executive Lucinda Nolan are refusing to sign up to the terms backed by the Premier’s office.”



“Meanwhile, CFA volunteer boss Andrew Ford spoke out against the deal this morning.


“We can hardly believe the stupidity of what’s being talked about. It is one thing for a union to negotiate for its members, it’s one thing to negotiate pay conditions, we have no quarrel with that.


“But to seek to control decision making, to seek to be able to override the chief decisions about what and how to use resources, to seek to marginalise volunteers. That sort of thing is immoral and an abuse of power,” he told the ABC.”


C) On 18th April the Senate was recalled and the ABCC bill debated and voted down, giving the Liberal Government a Double Dissolution Trigger.


D) On 28th April  The Liberal Party of Australia Victorian Division Registered the Domain name handsoffthecfa dot com dot au. 
It contains a petition which says “Sign the petition to put Victorian volunteers first” The petition is Authorised by S.Frost. 104 Exhibition Street, Melbourne VIC 3000
(03) 9654 2255 | |
The Liberal Party HQ in Victoria.
The ABN number given is the number for the Liberal Party of Victoria
Liberal Vic abn
The Person who is the contact name for the website is Simon Terpstra.
Terpstra 1
E) On May 3rd the 2016-17 Budget is brought down.
F) On May 8th Malcolm Turnbull announces a Double Dissolution Election is to to be held on 2nd July. Electioneering begins.
G) On 1st June The Fair Work commissioner publishes his recommendations as to how to settle the dispute between the CFA and the UFU.
H) On 4th June The Prime Minister of Australia, Malcolm Turnbull addresses a rally of Volunteer firefighters in Melbourne on the steps of parliament house and vows to change Federal Legislation. He said.
“But if we’re re-elected, we’ll rectify it …. There would be changes to the Fair Work Act that would relate to what would be objectionable or unacceptable clauses in EBAs.”
You, the reader,  will note that a State dispute between a Semi government body and it’s employees has escalated to a long held Liberal theme of bullying Tactics by the union. Researching for this this piece I have read the word thug many many times in the comments of newspaper articles about this dispute. The dispute was also a theme in Questions asked by the Media Gallery of Bill Shorten when he did a press conference.
It was the scene of demonstrations against the labor party.
Wearing CFA Uniforms and with Banners saying Hands Off the CFA.
With Jackets and Tee shirts printed with Hands Off the CFA and put Labor Last.
There was huge ABC coverage the impact the dispute would have on the Labor vote on Election day.
1/ The bloke who registered the website for the liberals, works for the liberals and he was also connected with the Seat of Corangamite. We know this because Sarah Henderson the Liberal MP for that seat thanked a Simon Terpstra in Parliament in her First Speech on 13 November 2013.
Looks like she is going to retain her seat.
2/ Sarah Henderson Herself put out an entirely misleading web page on how she was

“Standing shoulder to shoulder with CFA volunteers”

I am amazed at these people and their ability to understand an issue.

Lets wrap this up Quickly.



The concept of a volunteer.



The Actual Words in the EBA agreement at clause 7A.1 and 7A.2 say the following.



Role of Volunteers




The EBA has nothing to do with Volunteers apart from these two clauses which appear to me to be pretty clear. The intent of the EBA is to cover PAID Employees.



The other thing that people may not also realise is that the Equal Opportunity and Human rights Commission Have nothing to do with Volunteers either.



The Definition of Employee in that act (page 14) is:-

employee includes—
(a) a person employed under a contract of
service, whether or not under a federal
agreement or award;
(b) a person employed under the Public
Administration Act 2004 or appointed
to a statutory office;
(c) a person engaged under a contract for
(d) a person who is engaged to perform any
work the remuneration for which is
based wholly or partly on
and in Part 6 includes, but does not otherwise
in this Act include, an unpaid worker or


Part 6 of the Act Is Prohibition of Sexual Harassment. SO Volunteers are only covered under this Section.

So let’s ask the Question again.


Did the Liberal CFA Lies lose the Labor Party Government?

It’s really up to you to decide that answer.

As I read through the documents some other Questions occurred to me.

1/ Who printed the hands off the CFA posters and Wearing Apparel which had hands off the CFA – put labor last on it.

2/ Who appointed the CFA board whom Daniel Andrews sacked?

3/ If the handsoffthecfa web site was established on 18th April, was it established to help Sarah Henderson in her Marginal seat of Corangamite?

4/ Was this part of a liberal party Scare campaign about Unions? Their favourite refrain?

5/ Given that The Minister for Workplace relations, Michaelia Cash, The Prime Minister Malcolm Turnbull and the Member for Coarangamite all have legal training, did they read the EBA documents and especially clauses 7A.1 and 7A.2 which specifically excluded Volunteers?

6/ Given that the Equal opportunity Act Victoria specifically excludes Volunteers from it’s provisions (apart from Sexual harassment in Section 6) and the EBA makes ZERO changes to existing Volunteer duties under the Proposed EBA (7A.1 and 7A.2), why did they include in their arguments and objections to various clauses argument about Volunteers?

7/ How can Malcolm Turnbull and Michaelia Cash make any changes to the Federal Fair Work Act when it only covers EBA’s (in this instance) and that EBA specifically leaves out any changes to the existing operational circumstances of the Volunteer portion of the CFA?

8/ And last but not least, was this a plot by the liberal party to attack the Unions again by the use of lies and subterfuge? And to save Federal Liberal seats by the cynical manipulation of CFA Volunteers?

How  much of a ‘shameful episode in Australian political history’ is the Liberal Party LIEs about the CFA dispute?

Ping to his comments about Labor.

‘This is the scale of the challenge we faced,’ he said.

‘And regrettably more than a few people were misled.’

Hubris? Yep by the bucketful.

2nd Godwin moment? Yep I think so.









Perhaps the Ashbygate loose ends are being tidied up by the Federal police?


On 2nd April 2013 I wrote an article in Independent Australia called “Ashbygate loose Ends”. It was an attempt to tidy up the loose ends of the Ashby Slipper Saga and to show what Questions still needed to be answered.

Let’s remember the case……
The Complaint of Sexual harassment by Ashby against Slipper had been filed with the Federal court on 20th April 2012 after Ashby had been working for Slipper Since late December 2011. He claimed that he was sexual harassed when he stayed in Slipper’s abode in Canberra in the first week in January 2012. Allegedly it continued later that month and by the beginning of March 2012, Ashby sought help about these sexual harassment claims apparently from Julie Bishop’s office. They are described in this Newspaper article when Bishop disclosed them to the Press. That article was written on 12 December in a News Ltd paper. She is quoted as saying

About a month before the story broke he contacted my office,” Ms Bishop said.

So the story broke on 21st April 2012 and a month before that is around the week beginning/ ending 19th March to 23rd March 2012. We can reasonably assume that it happened in this week, which was the last sitting week before the Easter break.
This information about the contact with Bishop’s office was actually in the Fairfax press on May 7th 2012 17 days after the application was filed in the federal Court. This reveals that the Staffer (Ashby) actually was in touch with her office twice. But it doesn’t state when the second contact was.
The Second contact date is revealed by the ABC in Mark Colvin’s program, which confirm’s the first March date and gives the second date as early April.
LEXI METHERELL: On Sky News, Julie Bishop was asked about phone calls from James Ashby to her office in March and April.
This information was revealed on 14th December 2012.
Other background information which is interesting is that the details of the court case and it’s David and Goliath nature were dribbled out in witness affidavit’s, submissions and judgements from 20th April 2012 to 9th October 2012. Justice Rares dismissal of the case for abuse of process happened on 12th December 2012.
That judgement was then appealed and a further Judgement allowing that leave to appeal and the actual appeal was granted on 27th February 2014. So Ashby could continue with his case of Sexual harassment. However he dropped the case (reported June 18th 2014)
The final thing to decide were costs. They were decided in Slippers favour in April 2016. After all how could you reasonably ask for costs after dropping a case?
On 12th May 2016, the Federal Police are asking the Federal Court for access to certain information from the case in their investigation of the alleged possible criminal Behaviour of Ashby, Doane, Brough and Lewis.

The Looser of the loose ends

Julie Bishop is on record as saying that Ashby contacted her office about a month before it all became public. But she also said he contacted her office in April as well.
Now this is very curious. I asked myself why would he want to do that? The question comes from a re-examination (in detail) of the evidence on the federal court site. I said it was dribbled out and the dribbling was about abuse of process. There are so many affidavits which contain information, that it is always a good idea to place the actual facts into a timeline and then evaluate that. So I did. Over a period of two weeks I went through the evidence (1700 pages) and wrote a comprehensive fully referenced timeline of what actually happened. Of course it is incomplete because the pivotal document (the Annexure to Michael Harmer’s statement posted on the Federal court website) is incomplete. This annexure contains all of the messages (which Harmer’s Lawyer’s saw fit to include) to and from Ashby and various people he messaged.
Around many of the Interesting bits which go to the criminal matters the AFP are looking into (I imagine) are these missing SMS messages. Who are they to? and what do they say? The forensic file of Ashby’s phone will also show who he called. There lies the nub of the matter; in the times and dates and possibly the duration of what transpired.
These details would be very informative information. Apparently they cannot be released because they were not led in evidence.
However my timeline investigation also reveals some more questions about the information above which Julie Bishop stated to journalists.

An examination of some extra pertinent details
We know that the last week in parliament before the Easter break in 2012, (19th to 22nd March) was very interesting when looking at this case.

Monday 19th March 2012.

In the Evening, Christopher Pyne met with Ashby in Peter Slipper’s Speakers office for just under 2 hours. Afterwards, Pyne asked Ashby for his email address and then lies about that to the press. Changing his story several times.

Tuesday 20th March 2012
On this day Ashby may have had contact with Julie Bishop’s office. See above.

Wednesday 21st March 2012
On this day Ashby may have had contact with Julie Bishop’s office. See above.

Thursday 22nd March 2012
On this day Ashby visited Pyne’s office to pick up a bottle of wine signed by Tony Abbott for an ex staffer of Peter Slipper. Why was it in Pyne’s office and not Tony Abbott’s?
Parliament rises for the Easter Break

Friday 23rd March 2012.
Ashby said he received a call from Wyatt Roy at 1.35pm on this day and his diary entry states
“With Solicitor’s number name and email” This is from the Channel nine 60 minutes program on 7 September 2015
At 2.45pm the diary also states that Brough and Ashby meet for several hours. The excuse he used to Peter Slipper for not being able to be contacted was that he was in a meeting at Coloundra Airport.

Saturday 24th March 2012
Queensland State Election day when Labor’s Anna Bligh was defeated by Campbell Newman and the LNP

Sunday 25th March 2012

Monday 26th March 2012
Ashby SMS at 12.12pm to Mark McArdle
Yeah you did a great job. I’ve decided to
press ahead with what I spoke to u about
some weeks ago. It’s going to be the
biggest challenge of my life, but this man
needs stopping. He’s hurt too many
people. I appreciate your comments about
not doing it, but I have the strength to go
thru with it and regardless of the outcome I
know I’ll have done the right thing. I have
no doubt we’ll chat soon.

Tuesday 27th March 2012
Doane “feeling awful” and wants to chat to Ashby.

Wednesday 28th March 2012
Ashby asks Doane to copy Peter Slipper’s diary. For a much more detailed description of the evidence please see my blogs.
The proposed trial of the Ashbygate Conspirators. and
So Mal Turnbull wants to talk about innovation? I was to talk about Mal Brough and Evidence.

Thursday 29th March 2012
15004 Karen Doane Your day to exhale is hopefully on the
horizon 😊 I’ve allowed
myself the luxury of a cry as I’m hope
alone and resting. All good in the hood. If
you hear any more from Jackie or Murray,
let me know. Curious of course
29/03/2012 2:00:31 AM UTC
12:00:31 PM AEST Read
(REF 1 page 240/247/265)
NOTE Jackie and Murray are mentioned. Who are they? The Federal Police will know if they are given access to Ashby’s phone records.
Ashby replies
15005 Karen Doane Yeah I forgot to call Murray last night. The
alcohol took me away unfortunately. Time
to lay off the grog and just focus on the job
ahead. Can’t mask feelings forever.
29/03/2012 2:02:12 AM UTC
12:02:12 PM AEST Sent
(REF 1 page 240/247/265)
Doane also thought they were meeting with Jackie this evening but Ashby forgot to call as he had drunk too much
He calls Jackie and this is the result.
15015 Karen Doane Jackie is keen to meet at 10:00am
tomorrow with the two of us. U ok for that?
29/03/2012 4:52:23 AM UTC
2:52:23 PM AEST Sent
(REF 1 page 240/247/265)
According to the affidavit of David Russell QC. Brough rang him “On a day, which I believe (but cannot be absolutely certain) was around 29 March 2012, I received a telephone call from Mr Brough.”
Later that evening starting at 9.33pm Ashby sends 3 diary pages to Brough by SMS
Brough says they are hard to read and can they be emailed and gives his email address. Mal.brough2@bigpond,com.
Ashby then proceeded to email the three diary pages to him.

Friday 30th March 2012.
Meeting with Doane, Ashby, Jackie and Brough about what we don’t know but the SMS messages confirm they did meet and that Jackie organised a Barrister for $1. Also (that Brough was at that meeting) confirmed in an Email sent by Doane to Brough and revealed by the Subpoena Doane had to answer from the Federal court case.
15037 Glen Nambour Yeah all good. I’m hopeful this all comes
out within 2 weeks. I’m over the suspense
and not having a lawyer to back me right
now. My new lawyer is back in a week. O
30/03/2012 3:08:10 AM UTC
1:08:10 PM AEST Sent
(REF 1 page 242/249/265)

Later in messages talking about Jobs Doane says:-

15049 Karen Doane I hear ya…. I encourage you to contact
Murray ( Marie😉. You
need to keep everyone onside and have
options. Not sure if State will be your
future, or that you’ll want it to be, so the
more options the better. I really want the
Sports portfolios that is my passion and I
know it on many levels so I would be
perfect ( even if I do say so myself) when
you get to it, please send thru Jackie’s
email info. I’ll cc you into anything. Chat
soon 😏
30/03/2012 9:51:20 AM UTC
7:51:20 PM AEST Read
(REF 1 page 244/251/265)

Doane also asks Ashby for Mal Brough’s email in message 15057
15057 Karen Doane 30/03/2012
11:29:20 AM UTC (Device)
9:29:20 PM AEST Sent
(REF 1 page 244/251/265)
He gives it incorrectly as It should be

Saturday 31st March 2012
Nothing of particular note.

Sunday 1st April 2012.
Doane is unable to contact Brough by email and tells Ashby who made a mistake with the number and corrects it mal.brough2@bigpond,com in message 15102.
I also believe this was the day that Brough met with Clive Palmer to ask him to fund Ashby’s court costs.

So who was Jackie?

Whilst the preceeding exchange about email addresses seems very boring and innocuous. They are far from that. In the Ashbygate Loose Ends article I wrote in 2013, I asked the Question. “Who was Jackie?” and proposed that it might be Jackie Kelly. However in his 60 minutes interview, Ashby said Jackie was “code” for Mal Brough. Why then, I must ask, has Doane asked on the same day for two different email addresses. One for Jackie which appears not to have been answered and one for Brough, later in the same day which was answered incorrectly and corrected two days later. These two requests were asked at 7.51pm (Jackie’s email details) and 9.59 pm (Brough’s email details) on the same day. I will leave it up to you to decide whether the 60 minutes interview was false and misleading or not.
You will also notice that we have reached the month of April and I must now return to some scrutiny of the contact that Julie Bishop’s Office had with Ashby in that month.

Several Question spring to mind.

So Why would Ashby have any purpose to ring Julie Bishop’s office?

1/ Which office did Ashby call.
The Parliamentary office of Julie Bishop in Canberra had closed for the Easter break So her only open office was her electorate office in Western Australia.
2/ Why would Ashby call Julie Bishop’s office in Western Australia? Who would he know from there?
He could never have called it on Sunday 1st April as it would have been shut. However it would have been open (presumably on Mon 2nd, Tue 3rd Wed 4th and Thurs 5th) and closed on Friday 6th which was good Friday and that is the day he met with David Russell QC at his private residence for a charge of $1.
Monday 2nd April. 2012.
Interesting developments on Monday evening with Ashby talking to Steve Lewis from News Ltd.
SMS to Doane.
15116 Karen Doane Just had the most lengthy convo with
Steve Lewis. He’s flying up Wednesday.
Wanna come to coffee with him?
2/04/2012 11:07:10 AM UTC
9:07:10 PM AEST Sent
(REF1 page 249/256/265)

15117 Karen Doane Okay… I’m calling you now!!
2/04/2012 11:11:06 AM UTC
9:11:06 PM AEST Read
(REF 1 page 249/256/265)
Tuesday 3rd April 2012.
SMS messages between Doane and Ashby seem to indicate that he doesn’t have a Solicitor yet.
15122 Karen Doane I want to balance your harassment charge
with one of my own. He is demeaning,
aggressive and w his bcc’s unprofessional
at the very least. However I don’t want to
diminish your claim in any way. As you
said last night, both claims may strengthen
the case. I might look for a lawyer myself if
we don’t have contact soon.
2/04/2012 8:52:58PM UTC
3/04/2012 6:52:58 AM AEST
(REF 1 page 250/257/265)

15123 Karen Doane Yeah I will contact Mal again today. Failing
that I will make contact with someone
myself as well.
2/04/2012 8:54:07PM UTC
3/04/2012 6:54:07 AM AEST
(REF 1 page 250/257/265)
Yet in the 60 minutes interview he said he had been given a Solicitors number by Wyatt Roy and had since had a meeting with Brough, Jackie and Doane about seeing a barrister for $1 who is influential in the LNP.
So does he have a Solicitor or not? Would this be a reason to contact the Office of Julie Bishop? Along with Jackie a “Murray” is mentioned. Is this Murray Hansen, who is Julie Bishop’s Chief of Staff? And he is the “office” that Ashby called? He by the way apparently lives in Brisbane about an hour and a half’s drive away from the Sunshine Coast.

No wonder the Federal police want access to data on Ashby’s phone which according to proceedings on 12th April 2016 no longer exists. That would tell them who Jackie is (If Ashby rang her or emailed her) and who Murray is (if her rang him or emailed him). Because the forensic expert who downloaded the data from the phone, downloaded it all.
Wednesday 4th April 2012.
This is the day when Steve Lewis made a plane flight to the Sunshine Coast and met with Doane and Ashby. They meet at 12 noon at 5 grand Parade Perrarra
Thursday 5th April 2012.
On this day Ashby goes to a doctor and obtains a medical certificate which is for 2 weeks from 10/4/2012 to 22/4/2012 for an unspecified Medical Condition.
Friday 6th April 2012. (Good Friday)
At 10am Ashby, Doane and Brough meet with David Russell at his home on the Sunshine coast. He tells Russell that he has engaged Harmers in Sydney.
So I ask the Question once again. Why would Ashby need to call Julie Bishop’s office in April?
He had the Name, phone number and email address of a Solicitor on 23rd March from Wyatt Roy apparently, but don’t forget that he also said that “Jackie” was code for Mal Brough which can be clearly shot down in flames as suspect. If he had a Solicitor on that day then there is no need to call Julie Bishop’s staff at all because the Solicitor can tell him all about the Laws relating to misuse of cab charges and advise what he should do there. The solicitor should also be able to tell him about civil matters such as Sexual harassment and his remedies there.

Why he needed to go and see a Barrister is confusing. Which Lawyer was instructing the Barrister? I always thought they needed to be referred to people through a practicing solicitor. Brough hasn’t got a legal bone in his body. (or any Legal qualifications). Are you confused yet? I am.

What is clear is that a series of Liberal Party elected parliamentarians (apart from Peter Slipper) are heavily involved in this.
Just in case you had forgotten.

They are:-

Christopher Pyne, Liberal Member for Sturt. Who’s supposed to have offered Ashby a job.

Malcolm Brough, Member for Fisher and during the time of the complaint candidate for Fisher

Mark McArdle  Queensland MP and previous shadow Attorney-General and Shadow
Minister for Justice who was consulted on an ongoing basis by Ashby.
Also a qualified Solicitor.

Warren Entsch. The Member for Leichart and chief Whip at the time.
Who wanted to warn Abbott the night before it all was revealed but
Could not get in touch with him.

Wyatt Roy The member for Longman. Who allegedly supplied the Name Phone number
and email address of a Solicitor to help Ashby.

And Last but not least

Julie Bishop, Member for Curtin and Deputy Leader of the Liberal Party.
All of these people need to explain in detail what they knew of this affair. because they haven’t yet. Four years down the track.

More Egregious words used by the liberals. Disgraceful falsification of the facts.

“I swear by Almighty God, that the evidence I shall give will be the truth, the whole truth and nothing but the truth”

In a recent blog Vince O’Grady wrote about Fallacious Argument and a Double Dissolution Election. The dishonest use of Language to trick the voting public.
You can read it here

He used three examples of the arguments used by Malcolm Turnbull, George Brandis and Michaelia Cash. The Prime Minister, the Attorney-General and the Minister for Employment.
All three have Degrees in the Law, but it seems not much of their training seems to have stuck.
Lawyers are all about facts and presenting them in courts of law. These facts are called Evidence. In the cases of their recent comments about the CFMEU they said the following. So called Evidence from which they hope to introduce a bill to reinstate the ABCC. If it doesn’t pass the senate, they want to go to a Double Dissolution Election.
Malcolm Turnbull. 7.30 report 21st March 2016.
Well I think many Australians have – many, if not most Australians are very well aware of the level of lawlessness and corruption and waste in the construction industry. The Hayden royal commission set it out very graphically, if we had reason to doubt it. There’s about a hundred officials of the CFMEU and members of the CFMEU in – facing court proceedings at the moment. It is a – there has been a degree of lawlessness in that construction sector that was identified by the Cole royal commission years ago
George Brandis Lateline 21st March 2016
That may be so, Emma, but the fact is that the Heydon royal commission exposed almost 100 instances of criminal conduct by officials and members of the CMFEU.
Michaelia Cash in a doorstop with BGC constructions Perth on 26th March 2016 ABCNews24.
The Link is here.

It is important therefore that in relation to the state of lawlessness within this sector, the bullying that we know of, the intimidation that we know of, the thuggery that we know of, that for this sector to function properly going forward, we need to restore a strong cop on the beat. When you have a sector that is in a constant state of lawlessness – and we know that it is – when you have 100 CFMEU officials currently before the courts on over 1000 charges, that should say to all Australians that clearly the laws in relation to this sector are just not strong enough, and when you look at the fact that the CFMEU has been fined in excess of $7 million for breaches of workplace laws, what that should say to the Australian people is clearly the penalties are not sufficient.
I would just like to remind the reader of Senator Cash’s qualifications, copied from her parliamentary website.
Qualifications and occupation before entering Federal Parliament
•    LLB(Hons) (London).
•    BA (Curtin University of Technology).
•    Graduate Diploma in Legal Practice (University of Western Australia).
•    Solicitor (Senior Associate), Freehills 1999-2008.
Before we actually find out whether there are 100 CFMEU members up on over 1000 charges (an average of 10 each). Let’s look at the difference between Criminal proceedings and Civil proceedings.
Here is a good website to look at the detail
Criminal Law is where the offender is punished because the offence is personal and against society and
Civil law is where the person offended against receives recompense because of the negligent actions of the offender.
There is a much greater burden of proof for Criminal offences.
This is an important distinction. In all three Transcripts above, only the Attorney-General says that the CFMEU are Criminal conduct. This is entirely wrong. There were 90 referrals to other Jurisdictions of which 48 were alleged civil breaches and 42 were alleged criminal breaches. Those involving the CFMEU were 10 persons for 13 alleged breaches, 6 were civil and 7 criminal. All alleged. So no hundred there and this man is the chief Law officer in the land.
But the best is where Michaelia Cash got her 100 CFMEU and 1000 charges.
The ABCC was abolished by the Labor government, but a lot of it’s functions as a watchdog were taken over by the Fair Work Building and Construction organisation.
It was instructive to see them give evidence before the Senate after their 2014-15 Annual report was handed to the Government.
Here is the Link to the Video.

Senator Doug Cameron is asking questions of their representative and sitting next to him is the Minister, Michaelia Cash. The discussion starts with relation to an article in the Australian by Elizabeth Coleman. Here is the link to that article.
The article is entitled. 1000 crimes on building sites and goes onto describe the “Lawlessness” on building sites.
Senator Cameron in the Senate committee, asks where the 1000 comes from. The respondent says page 38 of the report. A discussion then follows as to whether these are contraventions or alleged contraventions. The table on page 38 of the report actually details 948 instances of “TYPES OF CONTRAVENTIONS INVESTIGATED”
Finally Senator Cameron gets the representative to agree that there aren’t 1000 and that they are alleged.
Reading the report further is also instructive.
Here is the link to the report.

Page 44 Shows a table of Results for proceedings as at 30 June 2015.

The results are 12 Successful, 1 Unsuccessful and 1 discotinued.

On Page 46 there is another table which shows “The nature of allegations of proceedings commenced by FWBC”
The results are as follows.
20 for right of Entry.
9 for coercion and
7 for Unlawful industrial action.
A total of 36.
So in conclusion
948 matters were investigated 36 proceedings were launched and of those 12 were successful.

What happened to the 100 CFMEU members on 1000 charges?

Three Senior lawyers turned politicians said there were 100. The most senior of the lot in Lawyer terms, the Attorney said they were criminal and Senator Cash said she had spoken to the Australian about the report in Senate committee.
Yet all of the successful prosecutions for Right of Entry, Coercion and Unlawful Industrial action, under the fair Work Act 2009 are NOT Criminal offences. They are CIVIL OFFENCES.

What happened to the Burden of proof and evidence which these people once made a living out of?
I think they are dead wrong, what do you think?
It makes a mockery of the following “I swear by Almighty God, that the evidence I shall give will be the truth, the whole truth and nothing but the truth”

Fallacious Argument and a Double Dissolution Election. The dishonest use of Language to trick the voting public.

In this blog I discuss the use of words in the political discourse. Particularly the words, Corrupt and Dishonest. I argue that their use by Liberal Politicians is in itself, Corrupt and Dishonest.
Fallacious defined.
based on a mistaken belief.
“fallacious arguments”
synonyms:    erroneous, false, untrue, wrong, incorrect, faulty, flawed, inaccurate, inexact, imprecise, mistaken, misinformed, misguided, misleading, deceptive, delusive, delusory, illusory, sophistic, specious, fictitious, spurious, fabricated, distorted, made up, trumped up;

I have put it here as a guide for the reader with which to judge what I am going to write.
So let us set the scene.
Tony Abbott becomes Prime Minister designate of Australia on 7th September 2013. His ministry is sworn in and he starts governing.
One of his promises, soon kept, was to have a Royal Commission into The Trades Unions. The Title was Royal Commission into Trades Union Governance and Corruption.
The Royal Commissioner was a retired judge. Dyson Heydon. AC QC.
The Commission was established on 13th March 2014.
On 30th October 2014 the commission was extended to 31st December 2015.
When it reported, the commission referred a number of people and organisations to various other jurisdictions.
There were a total of 44 individuals and organisations referred for 90 alleged matters which were both civil and criminal.
I did an analysis of the referrals and here is the break up.
26 were referred to the Fair Work Commission (Federal). Civil matters
7 were referred to New South Wales fair Work commission. Civil matters.
5 were referred for Larceny, fraud or obtaining a financial advantage by deception. Criminal matters.
2 for giving False Evidence to the Royal Commission. Criminal matters
1 for misleading Statements Criminal matter.
5 to the ACT Fair Work commission. Civil matters
19 for corrupt commissions.  Criminal matters
13 for false accounting. Criminal Matters
1 Taxation matter Criminal matter
1 to revoke charity status Civil matter
5 to ASIC. Civil matters
3 aide and abet. Criminal matters
1 ACT Criminal Offence. Criminal matter.
1 to Change an Act of parliament.
So a total of 42 Criminal matters and 48 civil Matters.
We hear much of the CFMEU nowadays from the Liberal Party Government  I propose that much of the Language they (the Liberal Government) use is Corrupt in and of itself.
Of the individuals referred to other law enforcement and other agencies 10 were from the CFMEU for 13 referrals of which 6 were Civil matters and 7 were criminal.

Malcolm Turnbull and Tony Abbott both argued for the return of the ABCC (Australian Building Control Commission) as a watchdog for the construction industry. Their argument as you will see is one of criminality, but the ABCC is not a Commission which deals in criminal matters. There are enough Police forces and a Crime commission in Australia which can do that. SO arguing criminality in the same breath as the ABCC return is a bit tricky.
Recklessly using words and facts.
Why was the word Corrupt used in the Name of the Royal Commission?
Let us look at the dictionary meaning of the word Corrupt.
adjective: corrupt
1.    1.  having or showing a willingness to act dishonestly in return for money or personal gain.
“unscrupulous logging companies assisted by corrupt officials”
synonyms:    dishonest, dishonourable, unscrupulous, unprincipled, amoral, untrustworthy, underhand, deceitful, double-dealing, disreputable, discreditable, shameful, scandalous;
corruptible, bribable, buyable, venal, fraudulent, swindling, grafting, criminal, lawless, felonious, villainous, nefarious, iniquitous;
informal crooked, shady, tricky, dirty, low-down, rascally, scoundrelly;
informal bent, dodgy;
archaic hollow-hearted
“they alleged that the government was inefficient and corrupt”

In all of the Crimes Acts of the States and the criminal codes of those States the word corrupt is used but it is not defined.
What does it then mean? A lawyer friend says that the word is interchangeable with dishonesty.
The only Act of a Parliament of a State (or the Commonwealth) in Australia that I could find which defines Corrupt Conduct is in Section 8 of the Independent Commission Against Corruption Act 1988 in New South Wales. This act only deals with public officials, but is useful to understand the definition of Corrupt conduct.

As you will see Corruption almost always involves some sort of crime which has a dishonest base to that crime.
8 General nature of corrupt conduct
(1) Corrupt conduct is:
(a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or
(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or
(c) any conduct of a public official or former public official that constitutes or involves a breach of public trust, or
(d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.
(2) Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority and which could involve any of the following matters:
(a) official misconduct (including breach of trust, fraud in office, nonfeasance, misfeasance, malfeasance, oppression, extortion or imposition),
(b) bribery,
(c) blackmail,
(d) obtaining or offering secret commissions,
(e) fraud,
(f) theft,
(g) perverting the course of justice,
(h) embezzlement,
(i) election bribery,
(j) election funding offences,
(k) election fraud,
(l) treating,
(m) tax evasion,
(n) revenue evasion,
(o) currency violations,
(p) illegal drug dealings,
(q) illegal gambling,
(r) obtaining financial benefit by vice engaged in by others,
(s) bankruptcy and company violations,
(t) harbouring criminals,
(u) forgery,
(v) treason or other offences against the Sovereign,
(w) homicide or violence,
(x) matters of the same or a similar nature to any listed above,
(y) any conspiracy or attempt in relation to any of the above.
(2A) Corrupt conduct is also any conduct of any person (whether or not a public official) that impairs, or that could impair, public confidence in public administration and which could involve any of the following matters:
(a) collusive tendering,
(b) fraud in relation to applications for licences, permits or other authorities under legislation designed to protect health and safety or the environment or designed to facilitate the management and commercial exploitation of resources,
(c) dishonestly obtaining or assisting in obtaining, or dishonestly benefiting from, the payment or application of public funds for private advantage or the disposition of public assets for private advantage,
(d) defrauding the public revenue,
(e) fraudulently obtaining or retaining employment or appointment as a public official.

If corrupt conduct is in fact going on, dishonesty, as part of a the criminal offence has to be proven in a court of law. With the correct charge and evidence led to prove that the person charged is actually dishonest as part of the offence.
Dishonesty in itself has been discussed at length in the high Court of Australia and is too long to include here but in Peters v The Queen [1998] HCA 7 in the High Court of Australia, the concept is discussed in depth. Particularly the test of dishonesty.

So what the Name of the Royal Commission really means to the reasonable lay person is “Royal Commission into union Governance and Dishonesty”.
That rather seems to be jumping the gun. If they know that the Unions are dishonest, then why have a Royal Commission? Why not just refer them to the Police in the State where that known dishonesty occurs?
This proves to me the proposition that the Royal commission was set up as a political exercise to smear the Unions and their political arm the labor party.
Are the following forms of words corrupt and/or dishonest?
Malcolm  Turnbull, the Prime Minister of Australia said…………On the ABC 7.30 report 21 March.
LEIGH SALES: You’ve set up the ABCC as a trigger for a federal election, a double dissolution no less, a very rare event in Australian politics. How many Australians do you think have actually heard of the ABCC, let alone care?

MALCOLM TURNBULL: Well I think many Australians have – many, if not most Australians are very well aware of the level of lawlessness and corruption and waste in the construction industry. The Hayden royal commission set it out very graphically, if we had reason to doubt it. There’s about a hundred officials of the CFMEU and members of the CFMEU in – facing court proceedings at the moment. It is a – there has been a degree of lawlessness in that construction sector that was identified by the Cole royal commission years ago. The Howard Government set up the Australian Building and Construction Commission to have a strong industry watchdog which reduced disputes. It improved productivity by 20 per cent. The Labor Party in government, Mr Shorten in fact as the minister, abolished the ABCC and what have we seen? Industrial disputes rising, lawlessness rising. Do you know, Leigh, nearly 70 per cent of all of the industrial disputes in Australia are in the construction sector and that tells you that Hayden was right and I believe we are right …

George Brandis, The Attorney-General of Australia on ABC Lateline said…………………..21st March program.
EMMA ALBERICI: The PM’s letter to the Governor-General says that this is an important measure to deal with widespread and systematic criminality in the building and construction industry, but indeed, the ABCC can’t deal with serious or organised crime, can it? It’s only a civil jurisdiction.

GEORGE BRANDIS: That may be so, Emma, but the fact is that the Heydon royal commission exposed almost 100 instances of criminal conduct by officials and members of the CMFEU.
But the reality from the Final report of the Royal commission is to be found at this web address

Let’s do an examination of the referrals detailed above.
First though let’s review what a Royal commission is not.
1/ A Royal Commission is not a court of Law.
2/ A Royal Commission does not find people guilty. It refers allegations to law enforcement bodies.

Some Failures to prosecute CFMEU members.
Justin Steele. CFMEU Organiser Queensland. Charge of Assault dropped. Charge proferred by the TURC Police taskforce.
Johnny Lomax CFMEU organiser Australian Capital Territory. Charge of blackmail dropped.

What happened to the “almost 100 instances of criminal conduct by officials and members of the CMFEU?”
That is not a fact as George Brandis, a supposedly eminent Barrister and the Attorney-General of Australia seems to believe.
What about “There’s about a hundred officials of the CFMEU and members of the CFMEU in – facing court proceedings at the moment?”
That is not a fact either, as Malcolm Turnbull, a supposedly eminent Barrister and Prime Minister of Australia seems to think.
On 26th March Michaelia Cash, the employment Minister held a Press conference in Perth. The main theme was the ABCC. She repeated the “100 CFMEU members” theme of Turnbull and Brandis but added before the courts for 1000 charges/matters. I can’t give a source because it hasn’t been put on her website yet. But what she said means that each CFMEU member (100 of them) are before the court chargesd with an average of 10 charges each. I would love to see the list.
My idea here is that the use of the word corruption in the Royal Commissions title is wrong in giving the impression of criminality of the union movement as a whole.
The Use of the words that George Brandis and Malcolm Turnbull uttered are also dishonest, because the royal commission only referred 12 matters which had CFMEU content , 7 of them criminal about 10 people who worked for or who are presently working for the CFMEU.
The use of words matters and we are off in this Election campaign to a very bad start.
I think the Liberal Party may be dishonest in their use of language, what do you think?

St. Peter and Barnaby Joyce

Ærchies Archive - Digital Detritus

Einstein dies and goes to heaven. At the Pearly Gates, Saint Peter tells him, “You look like Einstein, but you have NO idea what some people will do to sneak into Heaven. Can you prove who you really are?”
Einstein ponders for a few seconds and asks, “Could I have a blackboard and some chalk?” St Peter snaps his fingers and a blackboard and chalk instantly appear. Einstein proceeds to describe with arcane mathematics and symbols his theory of relativity.
Saint Peter is suitably impressed. “You really ARE Einstein!” he says. “Welcome to heaven!”
The next to arrive is Picasso. Once again, St Peter asks for credentials. Picasso asks, “Mind if I use that blackboard and chalk?” St Peter says, “Go ahead.” Picasso erases Einstein’s equations and sketches a truly stunning mural with just a few strokes of chalk.
St Peter claps his saintly hands. “Surely you are the great…

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