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AUSCRIPT AUSTRALASIA PTY LIMITEDABN 72 110 028 825

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TRANSCRIPT OF PROCEEDINGS

O/N H-358922

MR I. HANGER AM QC, Commissioner

ROYAL COMMISSION INTO THEHOME INSULATION PROGRAM

BRISBANE

9.31 AM, WEDNESDAY, 9 APRIL

Continued from 8.4.14

DAY 18

MR K.N. WILSON QC appears with MR J.R. HORTON as counsel assistingMR T. HOWE QC appears with MR D. O’DONOVAN for the Commonwealth of AustraliaMR R. PERRY QC appears with MR A. ANDERSON for family of Matthew Fuller and Rueben BarnesMR M. WINDSOR QC appears with MR M. HEATH for Peter Stewart and 72 othersMR T. BRADLEY QC appears with MS A.J. COULTHARD for the State of QueenslandMR S. KEIM QC appears for family of Mitchell SweeneyMR I. HARVEY appears for Mike MrdakMR D. BARROW appears with MS C. HUNTER for Jessica Wilson on behalf of family of Marcus WilsonMR W.M. POTTS appears with MR A. HANLON for Murray BarnesMR S. LLOYD SC appears for Robyn KrukMR TREFFERS appears for Margaret CoaldrakeMR S.R. McLEOD appears for Avril KentMR M. SPRY appears for William Kimber

Copyright in Transcript is owned by the Commonwealth of Australia. Apart from any use permitted under the Copyright Act 1968 you are not permitted to reproduce, adapt, re-transmit or distribute the Transcript material in any form or by any means without seeking prior written approval.

9.4.14 P-2385©Commonwealth of Australia

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COMMISSIONER: Mr Wilson.

<AVRIL SHIRLEY KENT, CONTINUING [9.31 am]

<EXAMINATION BY MR WILSON

MR WILSON: Ms Kent, can we just perhaps go back to the topic we were talking about yesterday afternoon, which was the way in which the project team looked at the question of installer safety. Remember I asked you some questions about that?

THE WITNESS: Mm.

MR WILSON: Can we just bring up your statement, please. And I’m going to paragraph 17.

THE WITNESS: Yes.

MR WILSON: Could I ask you then these couple of questions about who was in the morning project team meetings?

THE WITNESS: There was myself, my team, that was a scheduler that was running a schedule, the - - -

MR WILSON: That was Mr King?

THE WITNESS: Yes.

MR WILSON: Yes.

THE WITNESS: I’m sorry. Mr Nolan who was the risk manager – management officer that was maintaining the risk management plan.

MR WILSON: Nolan Nott?

THE WITNESS: Yes, sorry. Mr Nott. It’s a long time ago, I kind of – and all of the EL2s, so they are all of the senior risk owners and quite a few of the EL1s, depending on what issues were coming up. And Mr Keefe came and went as often as he could.

MR WILSON: Right. Now, if something was discussed in a morning project team meeting, was that then run past Mr Keefe or reported to him in some way?

THE WITNESS: Well, I would have – I would have caught up with him every day and if there was a new risk or an issue raised in the morning meeting, or just some

9.4.14 P-2386 A.S. KENT XN©Commonwealth of Australia MR WILSON

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operational issue, I would probably just want to let him know what was going on, if he wasn’t in the meeting himself.

MR WILSON: And you said yesterday afternoon about the decision not to include installer safety or OH&S risk in the risks that the department was managing. You said that was – there was a management decision that the “purview of that didn’t sit with us”. I am just wondering who the management is.

THE WITNESS: Yes, yes. Well, my memory of the discussion in the group was, it was discussed a couple of times and there was consensus in the group. And my recollection is that people said this had already been discussed earlier in the program and resolved, and now we needed – so it was in the context of “let’s move on” for some people. I couldn’t tell you the extent to which senior management was involved, other than to say in PCG I don’t remember it being a specific item on the agenda. But I think I recall it being discussed informally as part of the discussion.

MR WILSON: And between when you started mid-April and 1 July, did the constitution of the team change in any way?

THE WITNESS: We had a few new people come on board, I think. Ross Davidson came on board around May some time, and Mr Lamond. And there were a few EL1s that changed chairs, got moved around a little bit. But basically the project team was sort of in place by about the end of April. Yes.

MR WILSON: Yes. You say in paragraph 17 that:

The Commonwealth had neither mandate or operational role in that space.

I’m just wondering what you mean by that in the sense of, do you mean that the Commonwealth doesn’t legislate regarding workplace health and safety matters or do you mean something different to that?

THE WITNESS: Well, the discussion in the group was that regulation of OH&S is a state and territory responsibility. And I heard people say that it’s constitutionally their responsibility and not the Commonwealth.

MR WILSON: It sounds like a view legal.

THE WITNESS: It does, yes. But, mind you, there were quite a lot of people around the table who thought they had legal voice anyway so - - -

MR WILSON: Well, one of them did, didn’t he?

THE WITNESS: Yes.

MR WILSON: Mr Hoitink.


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THE WITNESS: That’s right. But I don’t want to put those words in his mouth necessarily..

MR WILSON: No.

THE WITNESS: I mean, I remember Mr Hoitink saying, you know – asking us to consider, “Are we sure that this is the position we want to take as part of the discussion?” But it wasn’t – it was at least a couple of times, and both times the group reached the same conclusion that we didn’t have a mandate as the Commonwealth to interfere in regulation of OH&S, and that we didn’t have an operational role in it either so we really couldn’t venture in that space.

MR WILSON: But you had an – I just want to test that hypothesis.

THE WITNESS: Yes.

MR WILSON: You had an operational role in the sense that the Commonwealth could allow or disallow particular products to be used under the scheme in the sense that - - -

THE WITNESS: That’s true.

MR WILSON: - - - it controlled the money.

THE WITNESS: Yes.

MR WILSON: So was any consideration given during these discussions to perhaps not allowing particular types of products to be used or funded?

THE WITNESS: Yes. I don’t remember that being discussed during the project team meetings. I remember later on in the program when foil started to be an issue, people talking about whether they should eliminate foil or any other products. And my memory is that the decision was that to discriminate against one product or another was not appropriate to the Commonwealth, in the sense that we were funding public money and we couldn’t select one product or another to say wouldn’t be ineligible for the – that’s my memory of it.

MR WILSON: But surely there were considerations, and I appreciate we’re jumping a bit over time here.

THE WITNESS: Yes.

MR WILSON: That discussion was being held after at least the first fatality, wasn’t it?

THE WITNESS: I think it probably started after the fires actually. Yes.


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MR WILSON: Right. And the fires were in August?

THE WITNESS: I think so.

MR WILSON: And going into September.

THE WITNESS: Yes.

MR WILSON: But wasn’t the problem with the fires more the combustion of the cellulose material or the batts, rather than the foil?

THE WITNESS: Well, I’m really technically challenged but, from what I can remember, there was a thing about domes going over the top of lights and you had to cut insulation around. And so, so my memory is that that’s when we started getting the technicality of what was the product, how was it installed, and my memory is that’s when we started to focus on early stages of discussions around should some products – or should it be mandatory to have the little thing over the light, and how much should we interfere in the product space.

MR WILSON: But when you say that the view was expressed that the Commonwealth couldn’t be discriminatory as between products, surely if one product exposed people to a very high risk of injury or death, that would outweigh discrimination factors, wouldn’t it?

THE WITNESS: From memory, I think – I – what I remember is that it was decided to send out – install warnings around products that were – particularly in foil, rather than to eliminate foil or any other product from the list of available - - -

MR WILSON: We will come to the installer warnings in due course, but we’re talking about whether the Commonwealth has any operational role.

THE WITNESS: Yes.

MR WILSON: Do you accept that the Commonwealth could, if it had chosen to do so, exercise some power in the sense of not funding certain types of products?

THE WITNESS: Yes.

MR WILSON: Now, try and take your mind back before 1 July, was any thought given from the project team meetings to that topic?

THE WITNESS: Not before 1 July that I remember.

MR WILSON: And before the first fire?

THE WITNESS: No, I can’t remember it.


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MR WILSON: Now, the second way that the Commonwealth could act operationally, I’m suggesting and asking for your comments, is the Commonwealth could say, well, we’re not going to pay for the work to be done unless it’s done by a person with particular training or competencies.

THE WITNESS: We could have – we did discuss before 1 July how tight the requirements would be. I remember a number of discussions around what hurdles the installers would have to clear before they could go on to the register and be eligible to claim. And PM and C expressed a strong view that the policy outcome that the Government was looking for through the stimulus was to inject funds quickly right across the country, and to give opportunities to people without a lot of skills to gain employment. And so any discussion around what qualifications we would impose on the installers, because we did have the right and agree to impose conditions to participating in the scheme, were discussed in the light of “don’t put hurdles in front of getting the stimulus package working on 1 July.”

MR WILSON: Now, the discussions that you’re talking about, were they at project team meetings, PCG meetings - - -

THE WITNESS: PCG.

MR WILSON: And when you say PM and C expressed the view, are you able to put a name to the view, or more than one name to the view?

THE WITNESS: Mr Hoffman, principally.

MR WILSON: So just take us back to those PCG meetings. I’m not imposing a memory test on you but when the topic was raised, was it a debate: that is, we should do this; no, you shouldn’t do that? Or was it simply a direction or a point of view being expressed by PM and C?

THE WITNESS: Well, I think it was Mr Hoffman actively advocating what he was responsible for doing, which was reminding us of the Government’s policy priorities, and reminding us when the discussions were happening where the Government’s intent for the money was.

MR WILSON: And I suppose my question then is, did you need reminding? That is, was somebody saying, “No, we want to do something different to that”?

THE WITNESS: Yes. Well, Mr Hoffmann felt we needing reminding.

MR WILSON: Right. And how was that done?

THE WITNESS: Well, he was – he had a very clear view of – and clearly the government had a very clear view about how they wanted this program to be launched on 1 July and a clear view about where they wanted – this is just my impression but where they had an appetite for risk and where they wanted the


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priorities to lie in terms of our efforts and our focus. And he – he – Mr Hoffmann expressed those consistently and quite assertively in a lot of discussions.

MR WILSON: That’s what I’m – I suppose – asking about. For him to be expressing something assertively, it rather suggests that someone else is saying, “Well, no, we don’t really agree with that.”

THE WITNESS: The – I – I recall a couple of times when the Department might have raised issues, things that they wanted to think about and that they thought – for example, there was a discussion I recall around – when we realised Medicare couldn’t give us the functionality to stop individual payments to – to installers. That was some time in June, I think. And we realised that that was going to be a risk for us because it only left us with post-payment compliance and it really gave us no flexibility around if we saw a problem, stopping a payment and stopping the installing. So for us we saw that as – for the Department, we saw that as a risk and there was quite a robust discussion in the PCG. Medicare had a strong point of view that it was an unreasonable and unnecessary thing to do because their assessment of the risk of installers making fraudulent claims, they said, was low because they thought it was similar to the risk of a GP fraudulently making a claim on Medicare. And Mr Hoffmann agreed with Medicare and gave us the impression he would really like us to move on from that topic and not dwell on it.

COMMISSIONER: I don’t quite understand that. Was Medicare incapable of stopping a payment as distinct from getting it back from somebody if they had been fraudulent?

THE WITNESS: Well, in the early stages – so we would get a run of claims over – you know, let’s say a thousand or two thousand people would lodge claims for the day, and then Medicare would enter it into the system. ..... they said to us it was – because it’s a fully automated process, once a thousand claims are in the only way you could stop one claim was to stop the whole run and they didn’t have the capacity just to nominate one – even one installer that we could say don’t give any more claims to them. But that came later in the program.

MR WILSON: Now, in paragraph 17 ..... you say:

As a result as reflected in the risk management plan there was a view -

etcetera. What are you referring to there as the risk management plan? Is that the risk registers or something different to that?

THE WITNESS: No, it’s the same thing.

MR WILSON: So do I understand from that you’re saying that the risk of non-compliance with OH&S obligations – other side of that same coin, risk of injury to an installer – was, what, not put in the risk register for the reason what you’ve expressed there?


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THE WITNESS: Yes. It wouldn’t have appeared as a risk that the Commonwealth owned – I don’t think.

MR WILSON: Was it discussed whether it should be put into the risk register and then the treatment was the states will look after this?

THE WITNESS: My memory is – my memory is that the group decided it’s – it’s not – it’s not a risk we can control therefore it’s not a risk that should go into the register as something that we own.

MR WILSON: But as I think I’ve already asked you, it was a risk you could control in some ways, wasn’t it?

THE WITNESS: In some ways, yes.

MR WILSON: Was that debate had at all?

THE WITNESS: It was had not so much in the context of OH&S but when we talked about training, so the guidelines, I think there was discussion then about what was the responsible level of training to require - - -

MR WILSON: Yes.

THE WITNESS: - - - people. But I – and I’m sorry if I’m not remembering clearly but I can’t – I can’t remember clearly that that was linked in the discussion with states and territories as regulators. So I suppose one was more a discussion – a general preventative focus in the guidelines and the other was the active regulation of what happened on the ground and I suppose that’s what we’re saying that we didn’t have a space with.

MR WILSON: I suppose what I was asking was this. There seems to me to be at least two ways of - - -

THE WITNESS: Yes.

MR WILSON: - - - dealing with the topic of risk of injury to installers. One is to leave it out altogether on the basis that the decision has been made that’s a matter for the states, that not a matter the Commonwealth is going to address at all. The other way is to put it in the – to recognise it is a risk but the way it’s going to be dealt with is by the states.

THE WITNESS: Yes.

MR WILSON: Do you see the difference between the two?

THE WITNESS: Yes, I do.


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MR WILSON: It seems that the first was the path that was chosen. Is that what you’re saying?

THE WITNESS: From memory, without checking through the risk registers but that’s my memory of the decision that was made.

MR WILSON: Now, just jumping, then, to the topic of training. You recall there being a discussion about that.

THE WITNESS: A number of discussions in different forms.

MR WILSON: If OH&S was a matter that the states were going to look after, why was the Commonwealth even worried or concerned or talking about training?

THE WITNESS: I think we saw the state’s role as actively regulating somebody not complying with OH&S - - -

MR WILSON: Yes.

THE WITNESS: - - - on the ground and monitoring what was going on – part of their business – their construction industry, whatever support that they provided. Ours was much more a broad brush preventative approach that we could take in the context of the guidelines. Does that help? Does that – is that distinction - - -

MR WILSON: Well, I think that’s at least partially answering my question in the sense that were you looking at the states only as operating reactively? That is, if somebody hurt themselves at work under the program, the state workplace health and safety people would then investigate it and deal with it.

THE WITNESS: I don’t think entirely reactively, and this may have been our misunderstanding of how states’ and territories’ agencies work – I don’t know. But I think our assumption was that as regulators, they would be monitoring businesses and have some sort of quality assurances processes in place to make sure that – that installers and construction people knew what the requirements were around OH&S and their responsibilities as employers.

MR WILSON: Now, you talk about this a little bit in your statement. How was the state to know what work was being done and by who? Was there an exchange of information?

THE WITNESS: You mean in specifically around how many installers in each suburbs or - - -

MR WILSON: Before – example, if the State of Queensland for whatever reason decided that it was going to do a snap audit of home insulation installers.

THE WITNESS: Yes.


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MR WILSON: How would it find out who was doing work, where they were working, matters like that?

THE WITNESS: I think if they had wanted to do that and come and asked us for the information, it would have been provided.

MR WILSON: But was there ever that thought gone into it in the sense of coming to some agreement with the states that there would be that exchange of information or was it simply an assumption?

THE WITNESS: Well, from memory is – in terms of – I think there were mitigation actions in the risk register from before 1 July which was about setting up some kind of memorandum of understanding or arrangement with state and territory agencies to allow exchange of information it required.

MR WILSON: There was certainly a memorandum of understanding or memoranda of understanding with all of the states and territories, I think, about fair trading.

THE WITNESS: Yes.

MR WILSON: That is, if a householder complained that the job was being done properly or – that they would be an exchange of information there but I’ve seen nothing of similar type with workplace healthy and safety or OH&S – you see?

THE WITNESS: Right. I suppose it depends on how we were defining relationships, setting up information exchange with jurisdictions. I must admit I thought that that included all of the key agencies and jurisdictions that might be relevant but I might be wrong with that.

MR WILSON: Well, you can only speak from your knowledge or what - - -

THE WITNESS: My memory.

MR WILSON: - - - you learnt from other people. Is it your understanding that after the time you became involved there was any formal liaison with the states and territories about OH&S matters?

THE WITNESS: Not that I’m aware of.

MR WILSON: When you arrived, were you told that there had been such an arrangement put in place?

THE WITNESS: I was told that there had been discussions – that the states and territories had been informed and there had been some discussion with them and that they were aware the program was underway. But other than that, that’s probably as far as the information was that I got.


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MR WILSON: Was it your understanding of, for example – and this – part of an answer you just gave but if one of the states wanted to do a snap audit of industry, that that information was available to them ..... Privacy Act concerns or matters of that sort?

THE WITNESS: Well, we couldn’t – we wouldn’t have had the information, obviously, until after the 1 July and the claims started coming in. But when I said the states could have come to us, I guess they didn’t and I don’t remember therefore having a discussion about what rules would apply if they did. And since that would have been hypothetical, and I don’t remember us having that conversation.

MR WILSON: The fact that they didn’t perhaps suggest one of the number of possibilities, one is that they consciously chose not to.

THE WITNESS: Mmm.

MR WILSON: One is that they didn’t know what was going on.

THE WITNESS: Yes, that’s a possibility.

MR WILSON: Now, that’s why I’m asking what information was provided to the state so that they did know what was going on and what was expected of them.

THE WITNESS: In terms of what was expected of them, I think the group, perhaps wrongly, assumed that monitoring the construction industry and these sorts of installation activities was their core business. It was business as usual. So I don’t think we would necessarily have seen it as us needing to tell them what was required to regulate the industry. In terms of – but in terms of how the program was rolling out and how many people were claiming and so on, we could have given them that information.

MR WILSON: The assumption that the states would monitor compliance with OH&S laws, what was that based on?

THE WITNESS: It was based on our understanding that states and territories had the legal responsibility to regulate those industries.

MR WILSON: The assumption was based on an understanding.

THE WITNESS: Yes.

MR WILSON: What’s the fact?

THE WITNESS: Well, I think we - - -

MR WILSON: Did somebody - - -


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THE WITNESS: - - - thought that was the fact.

MR WILSON: Did somebody say in the group, “I’ve looked at the legislation in New South Wales and Victoria and South Australia and it was the responsibility of that state to do this”?

THE WITNESS: Well, I’m thinking in the context of the morning meetings which was when I heard the conversation and it wasn’t just one person around the table that had the view that that was – that it was a clearly mandated responsibility for jurisdictions. There were a number of people who all agreed and – and it was sort of, you know, we’ve been through it – it was along the lines of we’ve been through all this. This is the decision. This is the position. So we’re not putting it in the risk register because we don’t own that risk.

MR WILSON: To your knowledge, was any inquiry made of any state and territory as to whether they had the resources to monitor the large number of people that were going to be coming into this business?

THE WITNESS: No, I don’t. Not that I know of.

MR WILSON: You said a little earlier that the training was looked at at least perhaps by you and perhaps by others as a – “preventative”, I think, was your word.

THE WITNESS: Yes.

MR WILSON: Preventative of what?

THE WITNESS: Preventative of somebody getting hurt or bad installations either way.

MR WILSON: Which rather suggests that the commonwealth took the view that it would do something to minimise the risk of people getting hurt.

THE WITNESS: Yes.

MR WILSON: Yes. And took the view that it should do so?

THE WITNESS: Yes, I think so.

MR WILSON: So then once it takes that view that it should do something, then we turn to what was done in terms of training.

THE WITNESS: Yes.

MR WILSON: Do you recall a change being made to the installer competencies in the week concluding 8 May 2009?


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THE WITNESS: There was a discussion in the PCG that – part of the conversation that I – I was privy to, I – I think there were conversations offline that I didn’t see but in the PCG which is the part that I – I observed, there was a pretty robust discussion, as I recall, about whether training for the installers was required as well as the supervisors and – and in the context of that discussion, I recall Mr Hoffman reminding us in that context of the need not to put too many barriers in the way of getting the program up and running and getting installers going and I think also part of that discussion was talk about the supervisors being in the roof with the apprentices or the unskilled workers who are new to the trade. And so – so it was really about if they’ve got someone with them who’s skilled and experienced and trained, then they will be training them on the job and – and that will manage the risks. So do we really need to have the apprentices trained beforehand as well.

MR WILSON: When you say it was a robust - - -

COMMISSIONER: Yes, I was going to – what did you mean by “robust discussion”?

THE WITNESS: Well, Mr Keefe had strong views that he – he – that I remember expressing in the meeting that he – he felt the training for the – the inexperienced staff should remain and others in the group thought differently.

COMMISSIONER: So - - -

MR WILSON: Felt – sorry?

THE WITNESS: Mr Hoffman reminded us about the policy priorities and so the discussion was around whether it was necessary.

MR WILSON: Was it a robust discussion between two people? You’ve seen the list of who attended these PCG meetings.

THE WITNESS: Yes, yes.

MR WILSON: There’s a lot of people there.

THE WITNESS: Yes. It was – well – well, certainly it wasn’t just two people. I mean, a lot of people weighed in but it was primarily, I think, Mr Keefe advocating that the training remain a requirement and Mr Hoffman leading the charge on “lets get the money out the door”.

MR WILSON: Well, was Mr Keefe a lone voice or there were others that took a similar view to him?

THE WITNESS: I think there were others around the table, whether – so I couldn’t tell you who they were. I just remember – sorry – I just remember a vivid discussion.


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MR WILSON: So we can go to the minutes if necessary, but if the minutes simply record PCG agreed that, it’s really one view prevailing over another, not a unanimous view.

THE WITNESS: Probably.

MR WILSON: Probably or actually?

THE WITNESS: I’m just trying to remember how it was resolved, that’s all.

COMMISSIONER: And you don’t take votes. There’s no - - -

THE WITNESS: No, it wasn’t a vote.

COMMISSIONER: It’s just a consensus.

THE WITNESS: Wasn’t a vote. It would have been Mr Forbes who was the chair of the group – he was very good at getting people to talk through calmly what their position was. So we would have talked around the group and it would have – if not a consensus, it would have been certainly – the feel of the group would have been the majority of the people had aligned themselves with the decision not to go ahead with it.

MR WILSON: But as I understood the evidence you gave just before, the decision to not require the installers themselves to have specialised training, because you’re aware they still needed to have an OH&S - - -

THE WITNESS: Card.

MR WILSON: - - - card - - -

THE WITNESS: Yes.

MR WILSON: - - - but not to have specialised training was because they would be supervised with some – by somebody with that training.

THE WITNESS: Yes. Yes.

MR WILSON: And that supervisor would actually be with them in the roof space.

THE WITNESS: That was an assumption that we made. Yes.

MR WILSON: Well, was that explicitly stated at the meeting that that was the trade-off, as it were, that it would go down the supervisor route provided the supervisor is there with them?


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THE WITNESS: Well, it’s certainly part of the discussion. I don’t know how – how much it dominated the discussion but it was certainly part of the discussion. I remember that.

MR WILSON: This is perhaps a more general question. Were you – did you become aware or were you of the view that this was an industry that you really needed to explain things to them in clear terms and expressly, that is, if you were to impose a condition that a person be supervised, full stop, that might mean a number of different things, mightn’t it? It might mean to you or me that - - -

[10.00 am]THE WITNESS: Yes.

MR WILSON: - - - the person is actually beside them.

THE WITNESS: Yes.

MR WILSON: But it might mean something else to people in the industry.

THE WITNESS: Yes, that’s true.

MR WILSON: Whether there was a need to actually spell out, “We expect that the supervisor be on site and beside the untrained person”.

THE WITNESS: I don’t remember us discussing that we needed to spell it out that clearly. I think we talked about the supervised – there would be a supervisor and perhaps assuming that others would interpret that the same as we did. I don’t know, but I don’t remember a discussion ever about how do we spell out what supervision means. But there may have been, I just don’t remember witnessing it.

MR WILSON: And were you aware, for example, that one of the competencies that allowed somebody to register as an installer was a prior trade qualification?

THE WITNESS: I think so. I – I – I must admit, I’m not – the detail of what the installers had to have or didn’t have, I’m sorry, I don’t - - -

MR WILSON: I’m just wondering if there was any discussion along these lines, that one of the persons who could have been entitled to register as an installer was a brick layer. A brick layer may never have been in a roof in his or her life.

THE WITNESS: Yes. I don’t – I’m sorry, I don’t remember any of it.

MR WILSON: Okay. Could I take you, then, to paragraph 18 and this picks up a point we’ve already spoken about:

DEWHA should liaise with the various agencies to prompt them to make sure that what they had in place was robust.


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Who was responsible for doing that?

THE WITNESS: My memory is that whatever tasks were assigned in relation to that went to Mr Hoitink, I think, and sometimes with Mr Keefe or Mr Hughes.

MR WILSON: See, the difficulty is it’s not in the risk register.

THE WITNESS: Isn’t it?

MR WILSON: So we can’t see who - - -

THE WITNESS: Maybe my memory is wrong then.

MR WILSON: - - - it’s assigned to.

THE WITNESS: My memory must be wrong. I thought - - -

MR WILSON: Certainly, there are some risks assigned to Mr Hoitink in the risk register - - -

THE WITNESS: Yes.

MR WILSON: - - - but I think we’ve established that the liaison with the states - - -

THE WITNESS: Right. I - - -

MR WILSON: - - - and the risk of installer safety wasn’t put in there because it wasn’t a risk to the Commonwealth.

THE WITNESS: No. Well, I – I thought I recalled – and I’m obviously wrong – mitigation around making contact with states and territories and setting up MOUs and I thought it was Mr Hoitink that was doing that.

MR WILSON: We have the risk registers. We can show you the bundle. As I said, it’s not a memory test so – and you, in fact – you, in fact, attach as exhibit 1 to your statement – I remember – part of this. But just go to, for example, tab 8. Now, have you got that?

THE WITNESS: Yes.

MR WILSON: You will see this is the one as at 20 May from the first page, so it’s after the meeting where the competencies are changed. That’s why I selected it. But you go to the second page of that, and for those following it’s MIN.002.001.3216 at page 3217.

THE WITNESS: Just making sure I’m on the right page. Yes.


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MR WILSON: You see at the top - - -

THE WITNESS: This one. Yes.

MR WILSON: - - - of the page 3217?

THE WITNESS: Yes.

MR WILSON: Last four numbers.

THE WITNESS: Yes.

MR WILSON: You will see the column 1, 2 and 3 are on the preceding page and if we go to the page with 3216 on it, if you drop down to the last box under heading 1, “Compliance risk”, second column, “The risk”.

THE WITNESS: Yes.

MR WILSON: “Installation and quality by installers is poor”. Do you see that?

THE WITNESS: Yes.

MR WILSON: Then the source of that risk, one of which is inadequate access to training or cost cutting.

THE WITNESS: Yes.

MR WILSON: Then the next page is effectively moving across the register. You see?

THE WITNESS: Yes.

MR WILSON: And if we go to that same box, it seems that a consequence of that can be customer complaints or, dropping down, “fire/safety issues”, dash, “litigation”. Now, we’ve heard some evidence that that description doesn’t include installer safety. We’ve heard some other evidence that people assumed that it might have but – so it’s not entirely all one way. But then if we move across the register you will see “Corrective action”, column 8.

THE WITNESS: Yes.

MR WILSON: And we go down, “Department communication tools”. And then we go down, “Training competency”, “Liaise closely with the Department of Employment”. And then the last one:

Complaints referral and follow up system to Fair Trading and A -


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it should be triple C, I think.

THE WITNESS: Yes.

MR WILSON: But there’s nothing there about the liaison with the states from an OH&S perspective.

THE WITNESS: I think if you look – I think where I got that from – if you look at the box above that where it says:

Develop links with ACCC and other regulatory bodies.

MR WILSON: Where’s that, I’m sorry?

THE WITNESS: That’s the box above. The corrective action – the first corrective action in the box above - - -

MR WILSON: Yes.

THE WITNESS: - - - talks about:

Develop links with ACCC and other regulatory bodies to achieve greater compliance, reduce fraud

and that’s attributed to Mr Hoitink and Mr Keefe, and so I think that’s probably where I got that memory from that Mr Hoitink had been asked – and Mr Keefe – to establish relationships.

MR WILSON: So you think that that - - -

THE WITNESS: I think that’s what I was remembering.

MR WILSON: Although it talks about the ACCC and compliance and reduced fraud, you think that might be - - -

THE WITNESS: I think that’s what I was remembering.

MR WILSON: - - - the liaison with the states about OH&S.

THE WITNESS: Well, it says “other regulatory bodies” so - - -

MR WILSON: Yes.

THE WITNESS: - - - I think – I think that’s probably where I got that from.

MR WILSON: And if we go across on the first page, the risk there is:


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Design control framework does not adequately support base stimulus package and energy efficient package goals.

THE WITNESS: Yes.

MR WILSON: It doesn’t seem to relate to OH&S matters, though, does it?

THE WITNESS: No, it doesn’t.

MR WILSON: But is the short answer to my question which arises from paragraph 18 of your statement that if anyone was tasked to do it, it was Mr Hoitink?

THE WITNESS: That’s my memory but, on the basis of this, it’s probably inaccurate.

MR WILSON: Now, you say in the last part of paragraph 18 that:

The project team did not have an expectation that a large additional impost would occur.

Now, that – pretty quickly it became apparent that that wasn’t the case, was it?

THE WITNESS: Yes.

MR WILSON: And there was a large take up under the program. To your knowledge, did Mr Hoitink or anyone else liaise with the states and territories to see whether the impost that this would put on them was capable of being managed by them?

THE WITNESS: I don’t – not that I’m – I’m not aware of anyone doing that.

MR WILSON: And just for completeness, in paragraph 19 of your statement in the fourth line, where you say advice from PM&C, specifically from the Coordinator-General, was that primarily via Mr Hoffmann?

THE WITNESS: Primarily, yes.

MR WILSON: Did anyone else from PM&C, to your knowledge, give such advice?

THE WITNESS: I suppose I should say that I wouldn’t have seen all the discussions with PM&C so - - -

MR WILSON: No. We’re talking about your knowledge.

THE WITNESS: So in the context of what I saw which was primarily in PC&G meetings, it would have been Mr Hoffmann giving that information.


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MR WILSON: Paragraph 23 of your statement, please. What proactive risk process did you put in place?

THE WITNESS: We tried to come at it from a variety of angles. So in addition to the morning meeting at 9 o’clock there was as many players as we could get. I had a staff member whose job it was to go around individually to risk owners and staff on a regular basis, review the risks that they own, talked to them about whether any more risks were emerging, discuss with them litigation, make sure that the risks were assigned as agreed by, and basically build up an ongoing exchange and relationship so they felt confident with him to sit down and talk about what was going on.

MR WILSON: That’s all internal.

THE WITNESS: Internal, yes.

MR WILSON: Yes.

THE WITNESS: I also did – of course, there was the discussions in OCG which gave opportunity for people who felt the wrong questions were being asked or anything, to raise them. But we also did – we also got Margaret Coaldrake to do a couple of what we called health checks.

MR WILSON: Yes.

THE WITNESS: Because sometimes when you’ve got a process going, people get comfortable in the process and they don’t always – you know, they’re – they’re focussed on the job. So we wanted to created opportunities where questions that might not be getting asked get asked, and so we did a couple of health checks, I think one in May and one in September where Margaret facilitated – well, she actually went around and spoke to individual stakeholders and staff and looked at documents that were being generated and reviewed those, and then she would have a workshop, I think, and come back to us with a report about where she thought there might be gaps.

MR WILSON: Let me give you a practical example and ask how you were proactively dealing with it. I just assumed that Matthew Fuller wasn’t the first boy to get in a roof and staple metal foil across joists.

THE WITNESS: Right.

MR WILSON: So there was a practice of people rolling out metal foil across joists and stapling it with metal staples. How was the Department finding out that that sort of practice was happening?

THE WITNESS: Well, I think the business area or the risk owner that owned technical issues would have been meeting with industry and reading newspapers, and


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..... the information and bringing it back to either myself or the risk – the risk coordinator, Mr Nott, or bringing it up at PCG or talking to Mr Keefe about it.

MR WILSON: So you would expect the person dealing with technical matters would have some sort of intelligence network to pick up what was happening on the ground?

THE WITNESS: Well, I think as the risk owner, they would have been monitoring the horizon or monitoring what was going on to some extent.

MR WILSON: And was that then reported back to you?

THE WITNESS: Well, we – we have processes in place so that anything that was raised, there was multiple opportunities to bring it back to us or the risk register.

MR WILSON: Right. I just haven’t seen any documents from the Commonwealth that say – someone reports internally saying, “We’ve discovered there’s a practice out there of stapling metal foil to roofs”. That might mean that we haven’t seen the documents or it might mean that there aren’t any.

THE WITNESS: I don’t remember seeing documents that raised that issue.

MR WILSON: If those issues are raised in meetings, people seemed very good at recording those in emails, you would expect it to be documented somewhere?

THE WITNESS: I guess so, but from my point of view in terms of how it comes to be a risk that gets discussed and – recorded on the risk register and discussed at PCG, we did have a protocol for escalating risks like that that appeared, but it would have been the risk owner’s responsibility to make sure that it was included.

MR WILSON: Let me ask it from a slightly different angle. When Matthew Fuller was killed on 14 October, did that appear to you to come as a great surprise?

THE WITNESS: Well, yes.

MR WILSON: To team members?

THE WITNESS: Yes.

MR WILSON: That we didn’t think people were doing this?

THE WITNESS: Yes, but I wasn’t – but I have to say I wasn’t part of any of the technical discussions so it might have just been my blind spot, I don’t know. It seemed a surprise to the team as a whole, that’s what it seemed.

MR WILSON: Which rather suggests that people might not have known about the practice?


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THE WITNESS: Yes.

MR WILSON: Let’s look at another one, you mentioned earlier down-light covers.

THE WITNESS: Yes.

MR WILSON: Did you expect someone in the team to know from their intelligence network that installers out there under the program were putting whatever type of insulation material it might be over down-lights?

THE WITNESS: I remember having conversations about that.

MR WILSON: Or did that only arise when the first fire happened?

THE WITNESS: I remember that being discussed before the first fires happened.

MR WILSON: Right. So that was something that was raised. And was a plan put in place to deal with it?

THE WITNESS: Sorry, I’m just trying to remember what action was taken, and I’m wanting to say advisories to installers. I can’t remember if the guidelines were tightened on that point or not.

MR WILSON: All right. Okay. Now, in that same paragraph 23 you said that:

That process was to make sure we were effectively monitoring what was happening and identifying issues.

Now, you may or may not know – I’m sorry, I will ask you. Did you know, this is before you joined the section, that a person had, in fact, drawn a particular risk to the department’s attention at an industry meeting in February? That is - - -

THE WITNESS: No.

MR WILSON: - - - people in New Zealand had died stapling metal foil to joists with metal staplers.

THE WITNESS: No.

MR WILSON: Would you expect, as the risk manager, that you could go to some central repository and pick out a file, either physically or electronically, that has in it all of the data and intelligence that’s available to the department about risks?

THE WITNESS: Not necessarily.

MR WILSON: Why not?


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THE WITNESS: Well, I think the focus is actually on the roll-out of the program, not on running risk registers. So people may have – I mean, I wouldn’t have assumed that someone would be putting all that information together in one central place. I think that, as part of the build-up to the thing, they might have discussed an issue, agreed it was in or it was out. And what I picked up when I started was what management had decided were the risks.

MR WILSON: But if you’re identifying issues, you’re monitoring what has happened and identify issues that were arising for the program. Wouldn’t it be useful to have at your finger tips a body of knowledge as to what risks had been identified?

THE WITNESS: Well, to the extent that risk is always – risk changes every – like, there's always a point in time assessment, so it would be going back and looking at risks that had been mitigated or decided that they weren’t a priority. I’m not sure that would have necessarily been relevant to dealing with what we were looking forward to or what management saw as a priority at the point in time that I joined. I’m not sure going backwards and looking at risks that had been mitigated or decided, that one priority would necessarily have been helpful.

MR WILSON: Let’s go back to my example, the stapling of metal foil.

THE WITNESS: Yes.

MR WILSON: As part of the proactive risk management that was being adopted, you would expect that some intelligence was being gathered by whoever is responsible for technical matters.


MR WILSON: As to whether people are doing their job safely, and putting the insulation in properly. Wouldn’t it be useful to know, at least to that person?

THE WITNESS: Yes.

MR WILSON: Well, one of the things that we were told right at the start was that there’s risk of people electrocuting themselves with metal staples through wires. The person on the ground who is looking at this better check to see whether or not people are doing that.

THE WITNESS: Well, I would have expected the risk owner to tell me that that was the history and that that was the risk.

MR WILSON: That’s what I’m saying, you would expect the risk owner to do that.



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MR WILSON: And to have that – that’s why I’m asking, would you consider it’s useful to have that information available in an easily accessible way?

THE WITNESS: Well, yes, yes.

MR WILSON: Can I go then to paragraph 28 of your statement, please. And I simply want to ask you what was the basis of your understanding, that is did you see some documents or did somebody tell you that that is what had happened?

THE WITNESS: It was just informal advice. So when I first started, you know, I was trying to get myself oriented and I was asking questions, and trying to get my head around what was already decided and what was still in play. And one of the questions I asked was that, and I was told that they had met and been informed.

MR WILSON: And as I think we’ve already discussed, you say in the next paragraph:

The project team generally assumed that…

that that assumption wasn’t regularly tested?

THE WITNESS: No.

MR WILSON: At paragraph 30 you, in fact, say that you do not recall whether these were ever put in place, that is the protocols at the states. Is that something we should ask Mr Hoitink about, why that – whether that happened and, if not, why not?

THE WITNESS: And it’s possible my memory is incorrect in thinking that he was – given that responsibility.

MR WILSON: Yes. Then at paragraph 32 you say:

While temporarily acting in Mr Keefe’s position –

that was in October, wasn’t it?

THE WITNESS: I think so, yes.

MR WILSON: You wrote to the states and territories and you annex an example of that letter as exhibit 3 to your statement, NTA.002.001.0144. I’m just having it brought up on the screen. Have you got the exhibits to your statement in hard copy with you?

THE WITNESS: No.

MR WILSON: You see there that that’s the letter you refer to.


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THE WITNESS: Yes.

MR WILSON: In this case to the Northern Territory. And you’re asking for assistance in terms of being advised about house fires. Okay. Now, this letter – if you scroll to the bottom, the copy we have isn’t dated – sorry, isn’t signed or dated, but it has got October.


MR WILSON: So this is well after 1 July. And you just see from the last line – keep going down to the bottom of the next page:

If you have any queries, please contact David Hoitink.

THE WITNESS: Yes.

MR WILSON: Or who was the director, program marketing, do you remember?

THE WITNESS: Greg Lamond.

MR WILSON: And that’s the gentleman whose email address is the second in the list above.

THE WITNESS: Yes, that’s right.

MR WILSON: Now, could I bring up QLD.002.001.1405, please. And this perhaps assists, and says:

I refer to your letter of 12 October.

Do you see that?

THE WITNESS: Mm.

MR WILSON: Regarding – requesting information.

THE WITNESS: Yes.

MR WILSON: And then there's reference to a memorandum of understanding with the Office of Fair Trading.

THE WITNESS: Mm.

MR WILSON: Queensland is telling you that Fair Trading officers are not qualified to determine the cause of fires but another office may have pertinent information, and it has been copied to - - -


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THE WITNESS: To them.

MR WILSON: - - - to them. Do you recall whether the information flow then occurred?

THE WITNESS: I remember having probably two or three teleconferences, maybe more, with fire chiefs from different states. I couldn’t tell you which states they were from at this point, I’m sorry.

MR WILSON: That was going to be my next query. Did you receive a similar response from each of the other states and territories to your letter? I take it it was sent to each state and territory.

THE WITNESS: Yes. My – I – I have a memory of having teleconferences with the fire chiefs. I’ve never had a conference with the fire chief before so it stuck out in my mind. But the detail of what came back to us in writing and what was – I – I can’t recall now, I’m sorry. But I – my memory is that we had quite a good response and we were pleased because this was the first time we had actually felt that we contacted some of the jurisdictions and they responded.

MR WILSON: Now, that’s about fires.

THE WITNESS: Yes.

MR WILSON: But I haven’t seen a similar letter about OH&S.

THE WITNESS: No. Well, no, I didn’t do one when I was acting. The first death happened not long after that and I - - -

MR WILSON: Two days later. After your letter.

THE WITNESS: All right. Yes. And I was still acting but Mr Keefe was recalled from being away at that point and I went back to being an EL2. So it’s possible that that happened. I just didn’t – didn’t know about it because I wasn’t in the job any more.

MR WILSON: But you thought it was necessary, at least, to initiate - - -

THE WITNESS: Mmm.

MR WILSON: - - - some communication about fires. Did you think, although you didn’t actually do it, that it would also be appropriate to do that regarding OH&S matters?

THE WITNESS: Well, it seems like it’s the logical next step, I guess. But – but Mr Keefe and Mr Forbes may have had other more effective ways of doing it. Like, there’s more than one way to contact an agency than writing to them but - - -


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MR WILSON: Well, presumably, before you wrote the letter about fires, you saw whether there was another more effective way of finding out that information rather than writing directly?

THE WITNESS: I suppose I wanted to get their attention.

MR WILSON: Because fires were happening.

THE WITNESS: Yes. And I wanted to do it in a way that was more than a casual phone call. That was .....

MR WILSON: Did it cross your mind that if there was a problem that was manifesting itself in fires, that there may also be safety issues that were waiting to explode?

THE WITNESS: Yes. Well, I think so. Yes.

MR WILSON: So, what, you just didn’t have the time to do it? I’m just trying to understand why a similar letter wasn’t sent for workplace health and safety information.

THE WITNESS: Before the death?

MR WILSON: At the same time as this letter.

THE WITNESS: Same time as this. We – we were dealing with a number of crises and I could only – there was a limit to the number of things or issues I could deal with on one given day and so – so I have to confess I was focused on dealing with fires and a few other things that were happening and didn’t think, at that point, of taking the next step and writing to the OH&S agencies. Whether I would have if in – in – a few days later, I might have thought, “Maybe we had better follow that up with OH&S,” I don’t know, but time didn’t allow that and events overtook us so - - -

MR WILSON: I suppose this is a harsh question but it needs to be answered: which is more important, saving lives or preventing fires?

THE WITNESS: Saving lives.

MR WILSON: But no letter was written about work practices?

THE WITNESS: Not at that point.

MR WILSON: Could I take you then back to your statement and paragraph 35, and I just wanted to understand what Ms Belka was doing. You say that part of the compliance regime, you started analysing complaints that were being lodged.

THE WITNESS: Yes.


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MR WILSON: And looking at them. So this is from a – is this from a customer satisfaction point of view or from a safety point of view?

THE WITNESS: From a safety point of view. Well, safety and any other issues that were starting to appear.

MR WILSON: And you say that “they were involved in the decision to tightening the training requirements”. That wasn’t done until after the first and perhaps even the second fatality, was it?

THE WITNESS: I can’t remember the timing on that, I’m sorry.

MR WILSON: But what I wanted to know is Ms Belka, she was in the team.

THE WITNESS: She led the policy team, yes.

MR WILSON: The policy team?

THE WITNESS: Yes.

MR WILSON: What has the policy team got to do with making sure installers had OH&S training?

THE WITNESS: Well – well, Ms Belka’s team, in effect, owned the program guidelines in the sense that if there was an issue and there needed to be modification to the guidelines, she and her team would have worked on the – the wording and how that would appear and I think the installer – the requirements around installers having to have insurance checked and, you know, the tightening would have – Ms Belka would have developed the guideline amendments and so on that allowed that to happen.

MR WILSON: I just want to understand how this happens in practice. Going back to my example of people stapling metal to foil, somebody in the technical area finds that out and saw the potential problem here. So they then have to go to the policy section and say, “We need to amend the guidelines”? How does it work in practice?

THE WITNESS: Well – well, I suppose what I would have expected is that – is that the technical business person, whoever it was, would have said, “Here’s a – here’s a risk that we weren’t aware of.” And I would have probably thought they would come to us and also to Ms – Ms Belka rather than waiting for the PG – PCG and say, “This has – has happened. I think we need to do something to deal with it.” Probably it would have been the three of us getting together, I guess, talking about what mitigation needed to be put in place and getting her thinking about policy amendments and then it didn’t need to wait till the next PCG if – if the risk owner or the business owner thought it was a – a high likelihood and an extreme risk, then there was a process in place where it could have been escalated to Mr Keefe and Mr Forbes immediately.


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MR WILSON: And to the minister?

THE WITNESS: Yes.

MR WILSON: Because to amend the guidelines, the minister would have to approve it, wouldn’t he?

THE WITNESS: Yes. I’m not – I can’t – there has been changes to the way guidelines get amended since then that involved Cabinet and things, so I’m confused – I’m sorry, I can’t remember what the process was then, how strict they were.

MR WILSON: But the – let me put it in these terms: whoever had the authority to amend the guidelines, it would have had to be escalated to them?

THE WITNESS: Yes.

MR WILSON: That wasn’t something that could be done at your level?

THE WITNESS: No.

MR WILSON: Could I take you then to paragraph 40 of your statement and to the last sentence and ask when that realisation occurred.

THE WITNESS: I think, for me personally, it was – it was probably even a month or so into – after the claims started being lodged and, as I mentioned yesterday, we had a small compliance committee that was – was trying to do some fraud control management while we waited for the experts to come and take over, and so we would – we were looking at claims from individual installers and sometimes we checked on Google Earth, particularly for country areas. So if an installer said he – he only did four installs a day, that may sound reasonable in the city but if he’s in the country and the installs he’s claiming are spread hundreds of miles apart then that doesn’t become credible that the installer signing off on all installs or it was on the spot. And so I think it was at that point I started – and others – to think perhaps the supervision wasn’t happening the way we thought it should.

[10.30 am]MR WILSON: So within a month of 1 July - - -

THE WITNESS: That’s just the figure off the top of my head.

MR WILSON: No. Well, I’m perhaps looking at the period between 1 July and 14 October.

THE WITNESS: Okay. Somewhere in there. Yes.

MR WILSON: I appreciate it’s somewhere in there but it was probably earlier in that period than later, wasn’t it, that there was a realisation that the requirement of


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supervision was not being interpreted by industry in the same way as the department thought it would be?

THE WITNESS: Yes.

MR WILSON: What was then done?

THE WITNESS: Well, at that point, Ms Taylor and Mr Mulligan from the ATO had joined us and Ms Taylor had a small team of people working with her. So when these scenarios arose, they would ring the householders who were – who had claims submitted on their behalf to verify if there – there had in fact been an install and if they were satisfied with the installation. And I think they also rang the installer themselves and said – and querying the number of installs that they were claiming on a day and if there was a pattern emerging where we – where they felt that – because by this time, they’ve taken over the compliance committee, of course, but if there’s a pattern developing where they feel there’s an installer that’s not doing the right thing in relation to supervision or anything else, I – I recall Mr Mulligan and Protiviti doing some onsite audits to see what exactly was going on.

MR WILSON: Can I suggest a much simpler way approaching it?

THE WITNESS: Yes.

MR WILSON: Send out an installer advice, a reminder.

THE WITNESS: Yes.

MR WILSON: The supervisor has to be on the site.

THE WITNESS: I can’t even remember if that was done or not, I’m sorry.

MR WILSON: But that would be a very simple way of doing it, wouldn’t it?

THE WITNESS: It would, yes.

MR WILSON: But that concern arose even if we say into August 2009. When were the guidelines changed, or the competency requirements changed to say that the supervisor had to be on site?

THE WITNESS: I don’t know, I’m sorry. I can’t remember that date.

MR WILSON: It wasn’t done by 14 October.

THE WITNESS: I don’t know.

MR WILSON: Or 19 November.


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MR WILSON: Was that something that the compliance committee was attending to?

THE WITNESS: Yes, it was – it was their role to look at what issues were emerging in terms of compliance, what were the – what was the methodology around how compliance was approached. So Mr Mulligan was working on a compliance strategy around these issues, and there was also compliance with the guidelines as well as fraud.

MR WILSON: I’m just trying to perhaps get a sense of the expedition with which these matters were dealt with, that is - - -

THE WITNESS: Right.

MR WILSON: You say that problems seemed to be arising perhaps in July, perhaps in August, and then Protiviti did some work, and people from the Tax Office did some work. It seems to have been lumbering along, you see. And out there in installer land, the supervisors aren’t on site, potentially.

THE WITNESS: Yes.

MR WILSON: Do you think there was perhaps more urgency required in dealing with it?

THE WITNESS: Well, my recollection is that it took us a while to realise that this was happening, it took us, you know – and that when we did, we did as much as we could. I don’t remember anybody thinking it was low level. And, I mean, I remember a discussion how are we going to respond to it. And, as I say, the ATO people started soon after.

COMMISSIONER: Sorry, are you saying you actually did find out some time after July that supervisors were not on site?

THE WITNESS: We became suspicious that they weren’t on site because they were – because of the number of claims they were lodging in a day.

COMMISSIONER: That bit doesn’t follow. It doesn’t follow to me. The fact that they are doing 20 houses in a day, which is obviously cheating - - -

THE WITNESS: Yes.

COMMISSIONER: - - - you would say, doesn’t mean a supervisor is not on site, because they may have 20 teams and 20 supervisors, mightn’t they?


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THE WITNESS: I’m sorry, I didn’t explain that part of the process. Each claim had to be signed by the supervisor that was on the site that did the installation.

COMMISSIONER: Right, okay. Okay. Yes, all right. That explains it.

MR WILSON: Can we go to AGS.002.001.0001, please. These are the installer advices I’m going to bring up.

THE WITNESS: Okay.

MR WILSON: And they run in reverse chronological order. So can we go to the end of the document, please. Okay. Just scroll then up the screen to the start of invoice – installer advice number 1. Now, this is the one issued 29 June, just before the program rolls out. And just scroll down that, you will see the subject matters there. And if we scroll up – sorry, just finish number 1, yes, the tax invoices. Then if we scroll up to number 2, this is on 15 July. It’s how to fill in the forms and making sure that they’ve got insurance. Do you see that?

THE WITNESS: Mm.

MR WILSON: Then we go to installer advice number 3, about training availability and claims for payment. If we go to installer advice number 4, now, this is now – we’re now into August. Do you see there, reminder of the terms and conditions of registration? And there's a reference there to over-charging and of incorrect installation. There's no reference there to – you’re specifically addressing the terms and conditions of registration. There’s no reference there to supervisor being required to be on site.

THE WITNESS: No.

MR WILSON: And if we go to installer advice number 5, that seems to address partial installation of ceiling insulation. Do you see that?

THE WITNESS: Mm.

MR WILSON: And that’s the whole subject of that matter. Then if we go to installer advice number 6, 27 August 2009, special edition. And that talks about, effectively, the merger of the LEAPR program with the home insulation program. Then if we go to installer advice number 7, this brings in the requirement – if we just scroll down, you will see under number 4 that the installer actually had to go on site to do a quote. Do you recall that being a practice where it was thought that installers were simply doing quotes without actually visiting the home?



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MR WILSON: And if we scroll down, training qualifications and insurance certificates, a warning that there would be increased compliance and audit checks, but nothing in there about supervision.

THE WITNESS: No.

MR WILSON: And if we then go to number 8, this is about a pricing table. And then there’s also, then in – described as number 2, a repeating of the information about physical site inspections. So by this stage there’s some data coming in to the department that people aren’t behaving as they should be.

THE WITNESS: Mm.

MR WILSON: It must have been obvious that one of the things that they weren’t behaving as they should be was having the installer – sorry, the supervisor on site with the apprentice. Can you explain why we’re not up to the second – or 11 September.

THE WITNESS: Yes.

MR WILSON: Something as simple as putting it in the installer advice wasn’t done.

THE WITNESS: Apparently.

MR WILSON: Was any thought given to it?

THE WITNESS: I can’t – I’m sorry, I can’t remember whether it was discussed.

MR WILSON: Who was responsible for these installer advices?

THE WITNESS: Ross Davidson, I think.

MR WILSON: And we can go through them if we need to, but until the first death nothing about supervision. Was it discussed at any of the team meetings, the need to do that?

THE WITNESS: I’m just trying to remember the context in which I would have had that sort of conversation.

MR WILSON: Yes.

THE WITNESS: And initially it would have been in those – in that first month or so when we had that interim compliance committee. And I don’t remember us – I think we were focused on how could we – how could we manage it from an auditing compliance process, rather than sending out installer advisories. I can’t remember that we discussed that in that context.


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MR WILSON: That seems to be the wrong way round.

THE WITNESS: We were – we were more focused on the audit trail than we were on the other. But then – and then after I handed it over, I wouldn’t have really had much visibility of installer advisories. I mean, Mr Davidson looked after those so – so the extent I would have been involved in is that there might have been a mitigation action against risk that said, send out an installer advisory, but what was in the advisory or when it went, I probably wouldn’t have necessarily had a close view of.

MR WILSON: Well, the whole problem is that this isn’t in the risk register in the first place.

THE WITNESS: No.

MR WILSON: So it has been on the side, has it?

THE WITNESS: I think at this point it’s more about compliance with the guidelines than it is about safety per se.

MR WILSON: And you say that there was some work being done on the audit side, but surely the way to nip it in the bud is to say, thou shalt not do this, or thou shalt do this? And if they’re found doing it, you can really take strong action against them, can’t you?

THE WITNESS: Certainly, yes, to the first part, that we could have done that. What strong action we could have taken, I think at that point we were still in the early days of trying to figure out what strong action we could take because we couldn’t stop paying them. So we would have had to have de-registered them or – you know, and I think in coming up to September – I’m not sure when we – the compliance committee actually started de-registering people.

MR WILSON: The reason I put it that way is, if you go to audit first - - -

THE WITNESS: Yes.

MR WILSON: - - - and you find out that someone is in – a young lad is in the roof without the supervisor on site and you want to penalise them. They say, “Well, hang on, I didn’t understand that the guidelines meant that.” And if you write to them and say, “This is precisely what we mean” and then you find them doing it, you’ve got a much better case, haven’t you?

THE WITNESS: I would think so, yes.

MR WILSON: Can I take you to paragraph 43 of your statement and to annexure AK5. 43 just says that you went to a risk workshop on 19 May and I really wanted to take you to AK5 which is MIN.002.001.2136.


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COMMISSIONER: 2135?

MR WILSON: 2135. I’m sorry, yes. Now, do you recall attending – you’re noted as attending. Do you recall attending the risk owners workshop?

THE WITNESS: M’mm.

MR WILSON: 19 May, facilitated by Ms Coaldrake?

THE WITNESS: Yes.

MR WILSON: And then if we go to the Powerpoint presentations, you will see on the risk review register which is on the third page – keep going down. That’s it. Now, just scroll down a little bit. That’s it. See the last dot point on the page? Was it the case that only extreme or high residual risks were referred to the PCG?

THE WITNESS: Yes, I think – I think, from memory, it was – we adopted a by exception regime. So to have put – put the entire register of risks that were mitigated and that were under control up to the PCG as well as the ones that were – were presenting an issue or a problem, I think it was felt that that would bog the PCG down in long and tedious discussion of less important issues so it was decided to report by exception in the sense that the risks that were rated high or extreme were the ones that went to them.

MR WILSON: I just wanted to understand that. You know the risk matrix that Ms Coaldrake used?

THE WITNESS: Yes.

MR WILSON: If a risk before treatment was rated as extreme and critical I think was the other limb - - -

THE WITNESS: It was – yes, it was post mitigation rating. Yes.

MR WILSON: And then by treatment it came down to moderate.

THE WITNESS: Yes.

MR WILSON: Does that mean that that didn’t go to the PCG?

THE WITNESS: That’s my memory.

MR WILSON: And then who looked at whether the treatment was, in fact, working to reduce it to moderate?

THE WITNESS: That would have – that discussion would have happened weekly when Mr Nott went round to talk to the risk owner.


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MR WILSON: So the risk owner said, “Yes, everything is going well. Keep it at moderate.” That was enough?

THE WITNESS: Well, they – they would have had a discussion about it. It wouldn’t have just been a tick and flick, I don’t think.

MR WILSON: So what do – what level was Mr Nott at?

THE WITNESS: He’s an EL1.

MR WILSON: And he’s going around to people who are more senior than him?

THE WITNESS: Yes. And – but then it would have been followed up by myself when we did the risk register. The risk owners would put in – would make their amendments and decide what they wanted to change and then I would go through it and go back to them if I felt that they were rating something inappropriately or there wasn’t enough mitigation and we would talk about it and agree. So it wasn’t my role to give direction to people what they had to do. Like, my job was working with them so that they could decide what their appropriate course of action was and then that would go up to the PCG and there would be opportunity, then, also for management or anyone else to look at what was being proposed and decide if they thought it was inappropriate or ineffective.

MR WILSON: And then that – part of what you’ve just said is picked up on the next page under the heading “Suggested risk owner roles and responsibilities”.

THE WITNESS: Yes.

MR WILSON: So from the level of the PCG down through the HIP team to the individual risk owners had particular responsibilities. Is that how it worked?

THE WITNESS: Yes.

MR WILSON: And then there was a discussion of how decisions would be made about escalating – or delegating matters which are dealt with on the next page. Yes? And to your knowledge, how frequently or infrequently were risk moved either down from extreme to moderate or moderate to extreme? Was there much movement over - - -

THE WITNESS: Some - - -

MR WILSON: - - - the course of the program?

THE WITNESS: I’m just trying to – I’m just trying to get a picture in my mind of those weekly ..... I think from memory there was probably movement of – you know, two or three per PCG meeting that moved up or down. It varied, depending but that - - -


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MR WILSON: So not a huge amount of movement?

THE WITNESS: No. Not a huge amount of movement, yes.

MR WILSON: Could I take you then to 56 of your statement – I’m sorry, and could we bring up onto the screen MIN.002.001.3881 which is annexure AK8 to the statement. Do you recall attending the planning day on 7 July?

THE WITNESS: I don’t have much memory – I don’t have any memory of this meeting, to be honest.

MR WILSON: You talk about it at paragraph 56, which is why I was going to ask you some questions about it. But I wanted to ask you about some things in the document before that. You see – if you can go to the second page and you mentioned earlier that Ms Coaldrake did a milestone review. And under the heading “Comment” and I take it these are comments that have been made by somebody in the - - -

THE WITNESS: In the room.

MR WILSON: - - - Department.

Did not recognise the enormity of the project early enough.

Do you think that’s a fair comment?


MR WILSON: See under the heading “Compliance”:

Because compliance is not core business, it was not a focus.

Is that a fair comment?


MR WILSON:

Compliance became a discovery of skills available in-house.

THE WITNESS: And outside.

MR WILSON: And outside.

THE WITNESS: In the house and outside, yes.

MR WILSON: But do you consider that – regard that as a fair comment?


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MR WILSON: And what outside compliance skills did you get? Are you talking there about Protiviti and - - -

THE WITNESS: PWC - - -

MR WILSON: PWC.

THE WITNESS: - - - and the ATO directors.

MR WILSON: Yes. Then the comment that you talk about in the statement – if we go to the next page under heading 3, “What success looks like”:

Other indicators of success, no deaths.

You see that?

THE WITNESS: Yes.

MR WILSON: Now, you then go back to paragraph 56 of your statement and the third sentence:

We clearly discussed the risk of death of an installer.

THE WITNESS: I’m only saying that based on the notes from the meeting.

MR WILSON: Yes.

THE WITNESS: I don’t remember it, I’m sorry.

MR WILSON:

But we would have seen it as unlikely in terms of risk to the Commonwealth because it is a state and territory responsibility.

I’m just trying to understand that. If an installer dies, that’s not a risk to the Commonwealth.

THE WITNESS: Well - - -

MR WILSON: I’m not talking about prevention of the – I’m not talking about prevention of the death. But if someone dies under this program - - -

THE WITNESS: Yes.

MR WILSON: - - - I just can’t see how that’s not a risk to the Commonwealth.


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THE WITNESS: I think it would have been – I think – as I talked about earlier, we talked about the states and territories having the ownership of managing the risk.

MR WILSON: Yes.

THE WITNESS: Because we couldn’t control the risk or what happened to it, it wasn’t seen as a risk that – that we owned and probably in that context – and, as I say, I can’t remember this meeting so I’m – and to some extent I’m speculating here, but I’m thinking it would have been around would the Commonwealth be sued if somebody died as a result of the program.

MR WILSON: But what about reputation? The Commonwealth has put in place this scheme and people are dying. Isn’t that a risk to the Commonwealth?

THE WITNESS: Well, it wasn’t a risk – when it was discussed, it was not – reputational risk was not raised as an issue.

MR WILSON: Or political risk, because it certainly became very political.

THE WITNESS: It did. It did. Yes.

MR WILSON: That wasn’t considered?

THE WITNESS: Well, none of the discussions that I remember.

COMMISSIONER: And really, you can control any risk. You can’t say “I can’t control it”. You’ve got the purse strings. You can say “I won’t pay anyone who uses foil insulation in this way.”

THE WITNESS: Yes.

COMMISSIONER: “I won’t pay anyone who has a supervisor that’s not actually supervising.”

THE WITNESS: That’s true. Leading up until 1 July and right up until August, my memory is when there was any discussion about putting up barriers or obstacles or requirements or anything else that we were reminded by PM&C that – not to do that, that the important thing was to make it easy and fast for people to get into the program and spend money.

MR WILSON: That’s a different thing. That is saying you can control the risk but you choose not to.

THE WITNESS: Well, we couldn’t control regulating. We couldn’t be on the ground and control regulating whether installers – businesses - - -


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MR WILSON: No, the two matters which the Commissioner raised which I raised with you earlier devolve around money. That is, you can say “We will not pay for this particular type of product”.

THE WITNESS: Right.

MR WILSON: That’s a fairly powerful control.

THE WITNESS: Yes.

MR WILSON: Because one would expect that if customers have a choice of four products which they get for free and the fifth product which they don’t, they will choose one of the four. But you chose not to exercise that control, didn’t you?

THE WITNESS: Yes, because we – well, as I say, it was two issues. One was PM&C directing us that – not to put up obstacles and to make sure that the money got out, and a feeling further on that I recall hearing discussions about that it wouldn’t be appropriate to discriminate against one product or another.

MR WILSON: Yes. So when you say “we couldn’t control it”, really, the correct view is that you chose not – when I say “you”, I’m not personalising it.

THE WITNESS: No.

MR WILSON: Please understand that.

THE WITNESS: Yes.

MR WILSON: You chose not to control it for other reasons.


MR O’DONOVAN: Sorry. On a matter as important as that, I think it would be fair to actually specify who or what committee or what organisation is making the choice.

COMMISSIONER: Well, you appear for the commonwealth. That’s an organisation, isn’t it?

MR O’DONOVAN: Yes. I mean, if we’re going to leave it as abstract as that, but I’m not sure whether in asking the question, there’s – or perhaps in writing your report, there’s going to be any more focused attention on any particular issues or particular individuals or committees but - - -

COMMISSIONER: Well, Mr Wilson - - -


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MR O’DONOVAN: I’m just inviting some precision in relation to the questions being asked.

COMMISSIONER: Yes. I understand where you’re coming from but Mr Wilson has said, “I’m not making it personal to you.” He’s making it general and, you know, we have committees everywhere. We have called a lot of witnesses all dealing with this. I think the question is acceptable but I note the point you’re making. Go ahead.

MR WILSON: You chose not to control the risk in that way.

THE WITNESS: I’m just trying to draw the line in my head between what you’re suggesting we could have used as control and what we saw as meaning controlling that risk, and – and, I suppose, what we saw as meaning owning and being able to control that risk was actually being able to deal with a – an employer or have the authority to regulate or to monitor on the ground.

MR WILSON: You meant control from a regulatory perspective.

THE WITNESS: Yes. So in terms of controlling it in – in the sense of we wouldn’t pay people that didn’t comply. My understanding is that the guidelines did say you had to comply with state and territory OH&S regulations but that was part of the condition of being an installer and then when we realised that people were being noncompliant, that’s when we started to look at deregistering installers which was the step we needed to go through and not pay them. So I would say to you that we did acknowledge the extent to which we could control it by saying they had to comply with state and territory OH&S.

MR WILSON: Certainly it was a condition that people had to obey the law.

THE WITNESS: Yes.

MR WILSON: But we’re dealing with an industry where from the outset, you agreed with me yesterday afternoon, fraud was the number 1 concern.

THE WITNESS: Mmm.

MR WILSON: And you’re going to attract thousands. That was – the ambition was to attract thousands of people into this scheme, some of whom may not be scrupulously honest. The weapon or the lever that the commonwealth had was the money lever.

THE WITNESS: Mmm.

MR WILSON: And what I’m suggesting is it was a very powerful lever.

THE WITNESS: And we used it by deregistering installers. Yes.


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MR WILSON: But you didn’t use it – and I don’t want to go over and over things – you didn’t use it by restricting the products?

THE WITNESS: No.

MR WILSON: And you didn’t use it in terms of – once the suspicion was raised that people weren’t adhering to the same definition of supervision as the commonwealth was, of taking any steps to make sure?

THE WITNESS: I wouldn’t say we didn’t take any steps. I – you know, Ms Taylor and Mr Mulligan were in place and there were people actively – and then PwC came on board. I would agree that I don’t remember and there’s evidence here that suggested we didn’t use an installer advisory but I don’t think that means we did nothing.

MR WILSON: Just picking up on one point that was raised by what my learned, Mr O’Donovan, said, I have been talking in general terms because the commonwealth comprises many individuals, but you spoke specifically about the PCG and the role of the OCG.

THE WITNESS: Yes.

MR WILSON: Do you recall at any time the department forming the view – that is, officers in the department formed the view that, “We do not agree with this low barrier at all costs approach. We will go and tell our minister what our views are because he’s the decision-maker”?

THE WITNESS: From the time I joined in April, I don’t remember having those conversations.

MR WILSON: Do you recall any internal – “assent” is probably not the right word, but any internal discussions that, “They told us to do this again and we don’t agree with it”?

THE WITNESS: We were focused on – from where we were sitting as a project team, the government had given us a very challenging task to deliver this project in a short space of time and that was what we were focused on doing for them.

MR WILSON: At what cost?

THE WITNESS: To us personally or - - -

MR WILSON: No, no. Well, particularly to the four individuals who died, but at what cost? That is, every person said it was challenging to do it by 1 July but when does the time come for somebody to say, “Can’t do it by 1 July unless you sacrifice these protections”?


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THE WITNESS: I don’t know if this is – this will help the Commission, but from my point of view in terms of trying to run a risk management process, it – it’s quite common at commonwealth level, if you’re launching into a new area of – of funding more program activity, that you would run a pilot program of some kind and – for example, the digital switchover, you know, that’s the thing where we had to hand in our tube tellies and all go out and buy new flat screens and – so they started out in Mildura and they did a test run and then they did a ..... And so that would be, particularly in a new area – like this was for Department of Environment – you can have risk workshops, you can run spreadsheets, you can consult stakeholders, but, really, the best way to test if you’ve really captured the right risks and you’re looking at the right things would normally be to run a pilot program and test it on the ground.

[11.00 am]And that decision was made – and the decision was made before I arrived. I understood it was discussed as part of Ms Wiley-Smith’s discussions that it would be a progressive rollout and what I was told when I started was the government had made a decision it had to be a simultaneous rollout, a big bang on 1 July to fit with the policy priorities. So I don’t know if that answer your question.

MR WILSON: That’s very helpful. Just before we break, could I ask you one more question. Did anyone ever tell you why 1 July was the magic date?

THE WITNESS: No. It was just the religious thing that we – that was the – and we were working towards it and the decision had been made.

MR WILSON: Is that a convenient time, Commissioner?

COMMISSIONER: Yes. Adjourn for 15 minutes.

ADJOURNED [11.01 am]

RESUMED [11.19 am]

MR WILSON: Thank you. Ms Kent, can I take you to two documents, please. The first is AGS.002.018.1030, please. Or perhaps it might be 1029, there’s an email and a document attached to it. Now, do you recall who Catherine Ivanson was?

THE WITNESS: Sorry, I’m just trying to read this. Catherine Ivanson? No, I don’t, I’m sorry.

MR WILSON: Do you recall in February 2010, just to assist you in putting that in time, the program was suspended on 19 – or terminated on 19 February. It’s about a week before that, and there was some parliamentary debates and there was a Senate inquiry, I think, under way.


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THE WITNESS: Yes.

MR WILSON: Do you recall being asked to put together a chronology of risk management activities from the files?

THE WITNESS: I don’t, but I’m happy to accept that this says I did.

MR WILSON: Just picking up from what we were talking about before with document management.

THE WITNESS: Yes.

MR WILSON: How would you go about that task?

THE WITNESS: Probably – I probably would have used the PCG minutes as the basis of what I was doing, and then used – and also the program schedule, probably I would have looked at the program schedule to see key points in that; and would have gone back through the risk registers, I guess. Yes.

MR WILSON: Take the simple example. Ms Coaldrake produced a number of documents for the department. Were they all put in a folder somewhere?

THE WITNESS: I can’t – look, I’m sorry, I can’t remember really.

MR WILSON: Just in terms of how you did this task. If we go to the attachment to that, which is 1030.

THE WITNESS: Yes.

MR WILSON: You will see there that there’s a number – this is the document you produced.

THE WITNESS: Yes.

MR WILSON: Now, the very first thing there, project initiation meeting we know is – this is before your time, but it’s something that happened between Ms Coaldrake and officers of the department. So I’m just wondering how you would have found that document to do this exercise.

THE WITNESS: Well, I could have – I probably searched the electronic record system. I know there’s an electronic record system in play in the department of Environment, so I may have gone through there – gone through that and trawled through to see what I could pick up by searching under various words. I probably rang Ms Coaldrake and asked her if she remembered.


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MR WILSON: What did you see as your task? That is, were you looking at the way risks were identified or the way the – the formal way in which risk management procedures were followed?

THE WITNESS: I’m sorry, I don’t remember the task. It’s probably just a risk of – a list of key decision points, I don’t know. Sorry.

MR WILSON: And if we scroll down to the date that you started, which is the next page, you started in mid-April, didn’t you?

THE WITNESS: Yes, somewhere around there. Yes.

MR WILSON: So, for example, 23 April, “final terms of reference for PCG signed off.” You would have found that from the PCG minutes?

THE WITNESS: Yes.

MR WILSON: “PCG meets weekly.” Again, you would have had the minutes of the PCG meetings.

THE WITNESS: Yes.

MR WILSON: Were they put in a folder somewhere or - - -

THE WITNESS: A hard copy folder?

MR WILSON: Kept in a directory somewhere?

THE WITNESS: They would have been in a – kept electronically, probably, yes. I can’t remember keeping hard copies. I kept the hard copies that I took to meetings myself. I put them in a folder in my office. But whether there was a hard copy central file, I can’t recall. It was more like it would be electronic.

MR WILSON: In terms of hard copy files you maintained, do you recall - - -

THE WITNESS: I wouldn’t have – I doubt I would have maintained an official hard copy folder. I may have, but I doubt it. We tended to rely more on electronic records.

MR WILSON: Okay. We will just scroll down to the next page. You will see “Strategic risk advice”, that’s Ms Coaldrake?

THE WITNESS: Yes.

MR WILSON: “Meets with directors in the HIP program.” Did you participate in those meetings?


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THE WITNESS: I would have, yes.

MR WILSON: Yes. Then most of these entries seem to be either PCG or Ms Coaldrake related.

THE WITNESS: Mm.

MR WILSON: And I just query whether they were the only documents you had access to, or whether they were the only documents you chose to refer to.

THE WITNESS: I can’t tell, you, I’m sorry. I really don’t remember this task at all.

MR WILSON: Okay. Could I take you then, on document management, to another document that we have. Can we put that email up?

COURT OFFICER: .....

MR WILSON: Yes. It hasn’t been put into the system yet, Commissioner.

COURT OFFICER: Do you have ..... Mr Wilson?

COMMISSIONER: As I understand it, you’re still getting documents from the Commonwealth on a daily basis, are you?

MR WILSON: I’m not sure if it’s daily but periodically, yes.

COMMISSIONER: When do you expect those to finish?

MR WILSON: Mr O’Donovan has just run away.

COMMISSIONER: All right.

MR O'DONOVAN: My apologies, I was - - -

COMMISSIONER: Have you any idea when the Commonwealth will have finished producing all the documents that it has been asked to produce pursuant to summonses?

MR O'DONOVAN: The short answer is, I have an idea but it’s - - -

COMMISSIONER: Is it this year?

MR O'DONOVAN: Not this financial year is, I think, perhaps an answer. At the moment, unfortunately, they’re have been two additional large sources of material identified in the last two weeks. The thumb drive of Mr Keefe, while very small in terms of physical size - - -


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COMMISSIONER: Yes.

MR O'DONOVAN: - - - has generated an enormous amount of work.

COMMISSIONER: Putting aside the thumb drive, it has all been done, has it?

MR O'DONOVAN: No, there are other sources of documents – as further documents are requested and further searches are made, in the digital world, the universe expands.

COMMISSIONER: I know, it’s hard.

MR O'DONOVAN: So the process – we’re in the process of preparing a report to the Commission about which documents will definitely be produced within the next few weeks so that you can have some assurance that, in terms of the priority documents, what we believe are the issues the Commission is most interested in will have been reviewed, and uploaded and handed over.

COMMISSIONER: Yes.

MR O'DONOVAN: But there remains the possibility that when further documents are requested, that there will be further sources of material identified. So answering your question seriously, it is our expectation that in the next three – I will need to check this with my client but in the next – before we resume again in May that the documents of the highest priority will have been identified and produced.


MR O'DONOVAN: But that there will – realistically there will always be the possibility there is a document out there in the digital world which we haven’t been able to track down or process or covered.

COMMISSIONER: All right. Thanks for that. Yes.

MR WILSON: Were you aware, Ms Kent, that there was, effectively, an email address that people could send bricks and bouquets to, that is complaints or queries or - - -

THE WITNESS: Complaints and compliments, sort of thing. Yes.

MR WILSON: Who ran that?

THE WITNESS: Mr Lamond.

MR WILSON: And I’ve just put up on the screen one we’ve found. In terms of access to that, do you see that’s a specific point that is made by a registered builder.


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Mr Lamond ran this but was that then available to people such as you if you’re considering compliance issues?

THE WITNESS: I don’t – I never had access to any of those processes, the complaints and so on wouldn’t have come past me.

COMMISSIONER: I wonder if that’s another issue there. It seems to come from a company called Steel Homes. I presume that all the joists and so on are steel, then.

MR WILSON: Yes. It’s more about turning the power off, I think.

COMMISSIONER: Yes.

MR WILSON: But what I was exploring is if a number of builders – I’m not – I’ve got one specific example - - -

THE WITNESS: Yes.

MR WILSON: - - - here but if a number of building are writing in saying this is a problem and they’re all saying the same thing, that’s clearly relevant - - -

THE WITNESS: Yes.

MR WILSON: - - - to know.

THE WITNESS: Well, I think I said in my statement that we had started – well, when I say “we”, Mr Lamond started to review complaints and compliments that were coming in to see if patterns were emerging as we went along as a source of identifying issues.

MR WILSON: Can we scroll up to the top one?[11.30 am]

THE WITNESS: That would have been the standard response, I imagine.

MR WILSON: Yes. Would it surprise you to know that the reply to that was in April 2010?

THE WITNESS: My goodness. That’s disappointing, isn’t it.

MR WILSON: It is disappointing but I’m more concerned with the dissemination of information when it comes in.

THE WITNESS: Well, Mr Lamond was the director of that area and it was his responsibility to look at what was coming in, to assess whether there were issues emerging and to make sure that I was advised or Mr Keefe was advised when appropriate action was taken.


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MR WILSON: Did that happen?

THE WITNESS: As I said, I think as we went along the executives started asking for that to be done in a more systematic way.

MR WILSON: When was that?

THE WITNESS: I couldn’t give you a date but I’m thinking probably mid-August. I don’t know but I’m thinking that.

MR WILSON: And in what format?

THE WITNESS: Well, we used to do – I remember we started doing reports to the PCG about the number of complaints and the – I think.

MR WILSON: Yes.

THE WITNESS: And I’ve got in my mind a picture of a report going to PCG that had complaints and I think Mr Lamond used to do a geographical analysis of where they were coming from, and I think executives starting asking also for issues to be flagged but I can’t remember if that was in that standard format to the PCG or if that was more between Mr Lamond and Mr Keefe. I can’t remember, I’m sorry.

MR WILSON: Because – for example, just take this one note that came in, a concern about power not being turned off in roof spaces. Again, something that could be easily addressed at least superficially by an installer advisory.

THE WITNESS: Yes.

MR WILSON: Actually, you turn the power off.

THE WITNESS: Yes.

MR WILSON: What I’m trying to get a handle on is the dissemination and sharing of information in the Department so those sort of things could be done.

THE WITNESS: It would have been Mr Lamond’s responsibility in this scenario to ensure that the information got to Mr Keefe and/or to myself and to the PCG and action was taken.

MR WILSON: Could I bring up – thank you for that. Could I bring up – Commissioner, we’re going to put that into the system but it will desensitize it in the sense of taking out Mr - - -

COURT OFFICER: Elliott.


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MR WILSON: - - - Elliott’s phone number and things such as that. AGS.002.017.0041 please.

COURT OFFICER: ..... that was 0141?

MR WILSON: 0041.

COURT OFFICER: Thank you.

MR WILSON: 9 October to you, amongst others. We were talking before about the letter that went out on 12 October – you remember?

THE WITNESS: Yes.

MR WILSON: So before that date there was some discussion with Queensland about fires. Can we just scroll down that same page. See there a new issue has arisen?

THE WITNESS: Okay. Yes. I see that.

MR WILSON: This is a potential serious issue. Do you recall taking any steps in response to finding out what that was?

THE WITNESS: From my memory, I don’t know if I personally took steps but the technical team that was looking after installation materials were discussing this actively and I think I remember it being discussed. I went to one industry consultation meeting and my memory is, I think, we discussed this there as well.

MR WILSON: Just scroll down. That seems to be an internal communication within the Queensland department. And we roll over the page. See the first new paragraph there, the new issue?

THE WITNESS: Yes.

MR WILSON: Now, to your knowledge, if that issue is being raised by Queensland, what’s done in practical terms? So it comes in on 9 October.

THE WITNESS: Well, there probably would have been two people involved. I remember Ms Belcor’s team having a role in this because there were policy issues around here about whether they were going to – how specific people would be around which products and what the standards were. And I remember there was – there was a lot of investigation by Ms Belcor and her team as to how you actually – how easy is it to test the quality of the product, especially if it’s in the roof, and PwC had some involvement in that as well. So there was a lot of discussion and investigation options and considering policy responses to it.


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MR WILSON: What’s actually done in terms of this person still pumping material into the roof that can cause fires?

THE WITNESS: That would be – that would have been a matter for Ms Taylor and Mr Mulligan.

MR WILSON: For?

THE WITNESS: The compliance team.

MR WILSON: Well, that’s you, isn’t it?

THE WITNESS: No. By this point I’m handed over to the ATO people.

MR WILSON: I see. So there’s a new compliance team in place.

THE WITNESS: Well, I ..... would have been there from – I can’t remember. I think it was August.

MR WILSON: Right. But what were they going to do?

THE WITNESS: Well, I think they would have been in touch with the installer. I understood they were going out – what date is this?

MR WILSON: 9 October.

THE WITNESS: October, so PwC would have been in place so they may have sent PwC to do an inspection or sent Mr Mulligan to do a site audit.

MR WILSON: And you had regular meetings with Pw – when I say “you”, the Department had regular meetings with PwC?

THE WITNESS: My involvement with PwC was basically paying invoices and monitoring how many inspections they were doing a week and so on. It was Ms Taylor and the compliance committee that were involved in decisions about who they would visit and what the methodology was.

MR WILSON: Could I bring up AGS.002.015.0837 please. And we see here an example of minutes - - -

THE WITNESS: Yes.

MR WILSON: - - - of meetings. Your recorded as attending that, and also those other people that you’ve referred to.

THE WITNESS: Yes.


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MR WILSON: Do you recall when they started? That is, we have a minute there of 12 October. We know PwC was engaged, I think, in September.


MR WILSON: Did they – did you start having these minutes as soon as they were engaged?

THE WITNESS: We had weekly meetings from day one.

MR WILSON: Yes.

THE WITNESS: Yes.

MR WILSON: And there would be minutes of those.

THE WITNESS: Yes.

MR WILSON: And is that the form that the minutes - - -

THE WITNESS: Yes.

MR WILSON: - - - take?

THE WITNESS: Yes.

MR WILSON: Can we just scroll down, then, to number 2. You’re aware that PwC were arranging through a subcontractor to undertake roof inspections?

THE WITNESS: Yes.

MR WILSON: And there was to be a one page summary provided daily to you. Was that done?

THE WITNESS: Yes, I think so. I certainly did get a weekly report. Whether they did daily, probably they did. PwC were pretty good at doing what we asked them to do.

MR WILSON: Do you recall seeing any reports which indicated that on inspection of roofs that had had metal foil installed, that there were any particular issues?

THE WITNESS: That wouldn’t have come to me. That would have gone to the compliance committee.

MR WILSON: So what was coming to you with the roof inspections done? Just that we had done X number of inspections?


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THE WITNESS: X, Y and Z. So we were – so what we were saying to them was that we wanted so many – so we got to the point where we would say, “We want this many householders contacted in a week to organise inspections. We want this many letters to go out to householders, this many appointments made, this many actual roof inspections and this many reports.”

MR WILSON: Yes. And if particular issues were raised that might generally fall within the rubric of safety - - -

THE WITNESS: They would go to the compliance committee.

MR WILSON: They would go to the compliance committee. Could I bring up AGS.002.028.0517 please. And it’s from you – sorry, from Pricewaterhouse to you - - -

THE WITNESS: Yes.

MR WILSON: - - - 27 October.

THE WITNESS: Yes.

MR WILSON: And they’re recommending to you undertaking a risk workshop to consider policy amendments.

THE WITNESS: Yes.

MR WILSON: And was that done?

THE WITNESS: Yes.

MR WILSON: And it was facilitated by or conducted by PwC?

THE WITNESS: Yes.

MR WILSON: We just scroll down to scope. And do you recall minutes being prepared as a result of that workshop?

THE WITNESS: PwC did the notes from that workshop.

MR WILSON: Yes. Were you - - -

THE WITNESS: Yes. I think they probably did, yes.

MR WILSON: - - - provided with a copy of those?



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MR WILSON: And if we keep rolling down. Keep rolling down. Keep going. Next page. And you’re described there as the contract manager.

THE WITNESS: Mmm.

MR WILSON: Responsible for the endorsement of the scope of the engagement of PwC.

THE WITNESS: Yes.

MR WILSON: And the two people there mentioned have both been seconded from, is it - - -

THE WITNESS: Yes.

MR WILSON: - - - the Tax Office to be involved in the compliance team? Can I bring up then AGS.002.028.0814, please. This time written to Mr Keefe. Perhaps you had stepped out of acting in his position by this stage?

THE WITNESS: Yes. Absolutely.

MR WILSON: And this talks about the adjustment of the amount of the payment under the scheme downwards from 1600 to 1200.

THE WITNESS: Yes.

MR WILSON: Keep going under the heading Background. Keep going. And this talks about what claims where people have either ordered the work before the scheme changed so that when they get the $1600 or the $1200.

THE WITNESS: Right.

MR WILSON: Keep going. And this is to engage PwC – can we just go a little bit further. See:

Primary objective of our work - - -

THE WITNESS: Mmm.

MR WILSON:

- - - is to make sure people aren’t effectively claiming for more than they’re entitled to.

THE WITNESS: Yes.

MR WILSON: So that’s something that the - - -


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THE WITNESS: This is around the change to their entitlement.

MR WILSON: Yes.

THE WITNESS: Yes.

MR WILSON: So someone in the compliance team or Mr Keefe - - -

THE WITNESS: I think it was Mr Keefe primarily that drove this work but it would have been discussed also in the compliance committee about what’s the best way to manage the fraud and other risks around making the changes.

MR WILSON: That seems to be done very quickly.


MR WILSON: That is, the change was in November and almost immediately, PwC is involved. Do you see?

THE WITNESS: Yes.

MR WILSON: So there’s a perspective or – prospect of - - -

THE WITNESS: Yes.

MR WILSON: - - - fraud being committed against the commonwealth. It seemed to jump into action very quickly and engaged their consultants to do some work for them. You see?

THE WITNESS: Yes.

MR WILSON: Could I then go to AGS.002.013.1217, please, and just scroll down. Again, it’s addressed to you. This is towards the end – mid-November, 20 November. A reference there to there being 23,000 foil insulated homes.

THE WITNESS: Mmm.

MR WILSON:

A small number of incidents have recently occurred.

Perhaps a very kind way of referring to two deaths but what they then say is that there are going to be electrical safety inspections conducted on 10 per cent of foil homes and that they’re going to undertake through a subcontractor that work. Is that right?

THE WITNESS: Yes.


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MR WILSON: And was that work then carried out?

THE WITNESS: Yes.

MR WILSON: And was a report done either by PwC or by UGL?

THE WITNESS: I actually was away. I – I went away on leave on about 3 December. So they did all – most of the – the report on this – this one happened after, when I wasn’t around any more. So - - -

MR WILSON: I see. So this letter comes in – did you hand your job, as it were, to somebody else?

THE WITNESS: I – I handed – from memory, I handed different bits and pieces to different people. I think – my memory is that Mr Hughes took over most of what I was doing. I think – I couldn’t – I couldn’t be absolutely 100 per cent sure but I think he did take over management of PwC. I’m not sure. Although – no, wait a minute, there was a compliance branch set up. That’s right. Because the new taskforce happened. Sorry, I’m just trying to remember as I go. There was – they set up the taskforce and there were three branches created to do the work that we had previously been doing in Mr Keefe’s branch and one of the new branches was a compliance focused branch with an assistant secretary and I think they took over management of PwC and all of its activity. So the report would have gone to them.

MR WILSON: And I’m just comparing – and I just want to ask you whether it’s a fair comparison – Mr Fuller died on 14 October.

THE WITNESS: Right.

MR WILSON: And this is now getting towards the second half of November before an inspection regime is put in place. I’m just comparing that to the speed with which the commonwealth acted when the rebate changed to detect fraud.

THE WITNESS: Right. Well, in a sense, the rebate change was actually something that we talked to the PwC about when we were considering what – what our options were, so we anticipated that was going to happen and we had them engaged as part of the process. Whereas I think with the death, it’s not only more reactive but, from my memory, it wasn’t clear at first whether even it was a HIP funded insulation and, if so, what – what the circumstances of it were. So that’s the only thing I can suggest might be the difference.

MR WILSON: Well, by the time this letter comes in, there has been the second death on 19 November, you see.

THE WITNESS: I would just be speculating, I’m sorry.


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MR WILSON: Can we just scroll down, then, to see what PwC are going to do. You will see under the heading Scope.

THE WITNESS: Yes.

MR WILSON: And does that accord with your understanding of what they were required to do?

THE WITNESS: Yes.

MR WILSON: Now, how were the licensed electrical contractors going to know – that is, they’re an electrician – know what was good and bad insulation practice, or were they simply looking to see whether there’s an electrical fault associated with the work?

THE WITNESS: I’m just trying to remember. I – I don’t remember that detail, I’m sorry.

MR WILSON: Just scroll down. It might remind you. Electrical Safety Inspection. You see, make sure the roof is not still live.

THE WITNESS: Yes. I – I could only say what’s – if it’s what – that what is here is likely to be accurate reflection of what the agreement was.

MR WILSON: And can I summarise it this way: your recollection is that what they were asked to do, they did?

THE WITNESS: Yes.

MR WILSON: Could I take you then to AGS.002.013.2855, please. Now, again, this is towards the second half of November from you.

THE WITNESS: Mmm.

MR WILSON: And is this the practice that you follow, that is, we’ve seen the minutes of the weekly meetings with PwC. I’ve taken you to some of those.

THE WITNESS: This – this process about priority 1 and all of that was – was negotiated and agreed in the compliance committee. My job was just documenting - - -

MR WILSON: But what I was going to ask you was do you then come from the meeting with PwC and then effectively report to your team?

THE WITNESS: I’m just trying to see who’s on the list. I – this looks like there are people from PwC on this list so it looks like it’s an email following up from the meeting just to confirm what has been agreed.


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MR WILSON: And what did you say the priority 1 inspections were?

THE WITNESS: This is – as I say, the compliance team and Ms Taylor had negotiated all this. All I did was document what she gave me.

MR WILSON: And just scroll down to the next section, thanks. And this is the work that was being carried out by UGL – carried out in fact by UGL, I should say.

THE WITNESS: Yes.

MR WILSON: Thank you. Can I then go to AGS.002.015.0632, please. And is this the type of report that you would get from PwC on a periodic basis?

THE WITNESS: Yes, looks like it.

MR WILSON: Now, was PwC and UGL just checking for those electrical faults that we’ve seen reference to or were they also looking to see whether the insulation work had been done properly?

THE WITNESS: Yes. They were – they were checking (a) that there was an installation and, if so, had it been done properly and with the little things over the lights and all that jazz. And as I said, there was discussion – there was technical discussion and I didn’t understand that Ms Belka was involved with, about how could they actually test the product in a roof on the spot or in any other scenario, really, to see that it was to the standard that was required.

MR WILSON: Given the electricians were doing this, it seems, or electrical contractors, how would they know whether the insulation side of it was good or bad? Were they given some training? Some guidelines?

THE WITNESS: I – my involvement in – with the PwC contract was – I’m sorry – was - - -

MR WILSON: Minimal?

THE WITNESS: - - - administrative.

MR WILSON: Yes, okay. Can we go to AGS.002.018.1078, please.

COMMISSIONER: Before you leave that, there in the middle of the screen it says:

Desktop audits continue to result in de-registrations due to lack of response, lack of competency.

Can you tell me how the desktop audit would show a lack of competency?


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THE WITNESS: No, I don’t know how they did that. That was – would have been determined. Sorry.

COMMISSIONER: Yes. All right.

MR WILSON: Now, we’re into January 2010, and we see that Ms Ivanson. You don’t recall who she was?

THE WITNESS: No, I don’t, I’m sorry.

MR WILSON: And you see that word again “challenges”. Now what was this about? You said:

There have been a number of challenges to consistently managing and implementing the home insulation program risk management plan.

Greg Fraser will be conducting a workshop.

THE WITNESS: Right.

MR WILSON: Who was he?

THE WITNESS: I don’t know this, I’m sorry. I don’t – it could have been soon after I came back from leave so it would have been probably organised while I was away. So - - -

MR WILSON: Yes. Just scroll down and we might see the agenda on that so you might remember.

THE WITNESS: Yes, there's my name.

MR WILSON: Do you recall at that time there being an issue that the risk register and – had become unwieldy?

THE WITNESS: Well, before I – towards the end, before the taskforce was formed in November, I remember we formed a risk subcommittee from the PCG because at that point we recognised that the risk register was becoming unwieldy, and we wanted to find a way to try and make it more meaningful and to give better information to management about what was going on. And I think that was myself and Margaret, a couple of my staff and Mr Forbes. So we sort of did a bit of a streamlining and reorganisation of the risk reports and the plans. But we were just sort of starting to get our teeth into that and the taskforce was formed. And then I think it was a few weeks after that, a couple of weeks after that, we ran that through the PCG as we designed it – or redesigned it, and then I went off and took off overseas and, from memory, I handed it to Mr Hughes because that’s where the staff went. But it might have gone somewhere else, I don’t know. But I had no further involvement until I came – and when I came back I realised that – well, it was


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suggested to me by Ms Skipington that they had decided that the old risk register was too unwieldy and un-useful and so they hadn’t used it at all. And I was asked to start from scratch and rethink the whole approach after I returned from leave.

MR WILSON: And did you do that or did the intervention of the termination of the program - - -

THE WITNESS: I was starting down the track and we were trying to get the branch – I remember we were trying to get the branch heads together, because there were three branch heads at that point and Ms Skipington. So we went – I had proposals and some suggestions about a way forward. I think Ms Coaldrake got involved at some point but I couldn’t be sure of that. And so I wanted to put a proposal but it took – there was a delay of a week or two because people were busy and it was hard to get them together. And then we came up with something that we agreed, and then I think we had one meeting of the new risk management governance committee and then – and the program finished.

MR WILSON: If we go back to that chronology, AGS.002.018.1030, if we go down to the end. Scroll up a bit, please, to the top of that page. Okay, 20 January, risk workshop, do you see that; to revise risk register?

THE WITNESS: Yes.

MR WILSON: So that seems to have been undertaken then.

THE WITNESS: Yes.

MR WILSON: And then the revised risk register was sent in draft - - -

THE WITNESS: Circulated.

MR WILSON: - - - around to various people. Do you see that?

THE WITNESS: Yes.

MR WILSON: Do we see any reference in there to “installer safety”?

THE WITNESS: No.

MR WILSON: So by this time there’s three deaths. Is it still the case that the Commonwealth doesn’t think that installer safety is a risk it can control?

THE WITNESS: I can’t answer that. I don’t - - -

MR WILSON: Okay. Scroll down then. Do we ever get the updated risk register? Keep going.


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THE WITNESS: So we asked – we distributed the redraft which was – so basically the way the process which Ms Coaldrake described yesterday was that we would have got the key people in the room, and they would have nominated what they saw as the key risks and the priorities. That would have been consolidated into a risk register, circulated by myself for their comment. We would have waited for the comments to come back. I remember that we did have one meeting – I did try – as I say, I was wanting to get the branch heads together to talk about it, but I’m not sure I ever was able to do that because they were too busy.

MR WILSON: We might see the reason for that. So you’ve got draft governance arrangements.

THE WITNESS: Yes.

MR WILSON: 2 February, work begins on revised project risk plans. Do you see that?

THE WITNESS: All right, okay.

MR WILSON: Circulated on 4 February, revised risk register.

THE WITNESS: Yes. I’m not sure - - -

MR WILSON: Keep going down.

THE WITNESS: Yes. I think this is talking about individual projects rather than the broader – I don’t know, I would be guessing.

MR WILSON: You will see then, by 10 February, “Meeting deferred due to pressure of work.”

THE WITNESS: Yes, by then everyone was too busy to meet.

MR WILSON: “Deferred due to pressure of immediate issues.” So it seems it was never finalised.

THE WITNESS: No, before events overtook us.

MR WILSON: When did you first become aware that there was a plan to close the project down?

THE WITNESS: When I heard it on the radio.

MR WILSON: Because Ms Coaldrake did some scenario analysis of - - -

THE WITNESS: Yes.


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MR WILSON: - - - closing down the program which rather suggests that she was asked to do that by somebody.

THE WITNESS: Yes, but I don’t know if it was – but I don’t know if it was necessarily me. I remember hearing about it with my staff on the radio.

MR WILSON: So you had no - - -

THE WITNESS: And being shocked that it had happened.

MR WILSON: A big shock?

THE WITNESS: Yes.

MR WILSON: No forewarning to the department which is running the scheme that it’s going to be closed down?

THE WITNESS: The first when – at that – by this point in the process we’re running the radio all day so that we can hear what’s going on, the staff, and that’s where we heard that it had been closed down.

MR WILSON: You might have heard about it beforehand? Just bring up - - -

THE WITNESS: I don’t remember it.

MR WILSON: - - - COA.010.001.0304, please. Can we go to the end first so we see the context of this. So the risk paper was being sent around on 18 February at 1.10. And if we go up to the next email, you’re asking for the – you’re sending the latest version to Ms Coaldrake on 18 February at 1.12. Yes?

THE WITNESS: Yes.

MR WILSON: And then at - - -

THE WITNESS: So I did have at least the afternoon before.

MR WILSON: Well, I’m just looking at the time, you see.


MR WILSON: 23:39.

THE WITNESS: It looks like I did have some idea.

MR WILSON: Pretty close to midnight. You are asked:


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...to talk tomorrow about a finalisation plan as it looks like they’re crashing it tomorrow.

Now, it may be you didn’t see this until you came into work the next day. That’s really why I was asking you.

THE WITNESS: Yes. I just – I just remember hearing it on the radio with my staff around me and everybody – and all of us being pretty shocked.

MR WILSON: Yes. And could I go then to AGS.002.018.1068, please. Remember I asked you before about some work with Ms Coaldrake?

THE WITNESS: Yes.

MR WILSON: And this refers to an exit strategy. Do you recall what you were asked to do there?

THE WITNESS: No, I don’t, I’m sorry. At least I was asked to do this work.[12.00 pm]

MR WILSON: Just scroll down. There was a meeting on 19 January with Ms Coaldrake and perhaps others. And some papers - - -

THE WITNESS: It says – sorry. Sorry to interrupt. It just says important, not urgent. It suggests to me that it was just one scenario I was being asked to run but it wasn’t necessarily likely. That’s all I can think of, based on that one sentence.

MR WILSON:

In short, the following tasks are urgent and important -

THE WITNESS: Okay.

MR WILSON:

…and need to proceed regardless of when the program closes.

THE WITNESS: All right.

MR WILSON:

Policy development advice to the Minister’s office

etcetera. It rather suggests that the program is going to close but no particular date has been fixed on it.

THE WITNESS: No.


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MR WILSON: Is that a fair reading?

THE WITNESS: Just a hypothetical, I think. Yes.

MR WILSON: Yes. And then:

Some other work is important but not urgent.

Could I take you, then, to AGS.002.028.1471 please. And this is from you on 21 January to many people in the Department about the new risk register.

THE WITNESS: Yes.

MR WILSON: And we saw – we saw on the schedule or the chronology a reference to that meeting. Can I take you then – that’s only two pages. Could I take you to 1473 – that’s the last four numbers – please. And could this be the revised risk register that was – in draft form that was - - -

THE WITNESS: Okay.

MR WILSON: - - - compiled as a result of that work. And just going to get the operator to scroll down slowly and tell me whether installer safety or risk of injury has found its way into this. You see in 1.2, shoddy installation has found its way back in.

THE WITNESS: Yes.

MR WILSON: But not injury to installer.

THE WITNESS: No. It doesn’t look like it’s there.

COMMISSIONER: What’s the date of - - -

THE WITNESS: There’s death in roofs .....

COMMISSIONER: What’s the date of that?

MR WILSON: Sorry, yes.

COMMISSIONER: What’s the date of that?

MR WILSON: Deaths in roofs. Now, who’s Peta Lane?

THE WITNESS: I don’t know, I’m sorry.

MR WILSON: Do you know – it seems to be spelt in a – spelt in a feminine way.


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THE WITNESS: Yes. These – these would have all been the new taskforce people that would have come in while I was away.

MR WILSON: Right.

THE WITNESS: I mean, it’s a whole different paradigm.

MR WILSON: But this is done, as I understand, after you come back in January.

THE WITNESS: Yes, but – but there was a whole new group of people and managers and staff, and most of whom were strangers to me.

MR WILSON: I see.

THE WITNESS: So I probably won’t recognise any names at this point.

MR WILSON: Yes. Okay. And you – therefore, if you don’t know Peta Lane, you don’t know what she - - -

THE WITNESS: I can’t help you with that, I’m sorry.

MR WILSON: - - - did in respect of that particular aspect?

THE WITNESS: My focus – I was working directly to Cathy Skippington who was the FAS and what she said she wanted me to do – because in some ways I was a bit independent at that point because I had been away whilst the taskforce was rolling. She said she wanted me to work directly to her and set up a governance framework that had become ..... and work with facilitating the key people in the taskforce to getting things going again around risk management and governance.

MR WILSON: Do you recall – can we scroll back up to the top? Just bear in mind what’s there in 2.2. Yes.

Source. How can this happen. Consequence. What will happen.

We’ve spoken about the discussion that took place at the outset and before 1 July where risk of injury to installer was discussed and it’s decided that it’s a state problem.

THE WITNESS: Responsibility, yes.

MR WILSON: State responsibility. What changed? It’s now in the register.

THE WITNESS: Well, at this point I think the Department has realised that that was – that assumption wasn’t working and that we needed to be more involved, I guess.


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MR WILSON: Yes. Now, did you move over to the Department of Climate Change - - -

THE WITNESS: Yes.

MR WILSON: - - - when there was a MOG?

THE WITNESS: Yes.

MR WILSON: And what was your role there?

THE WITNESS: I actually went into the transition team so that was about helping to decide who was – because it was pretty chaotic, as you can imagine, and they needed to set up new structures so we did manpower planning, we were looking at how we got all the databases to talk to each other between the two departments, people’s entitlements around being redeployed, and so on. So – so I moved right out of anything to do with risk management or program management and it was more that back of house change management process that I was involved with.

MR WILSON: I will come back to that but did you have any ongoing involvement, then, in what has been called the FISP?

THE WITNESS: No.

MR WILSON: Or the HISP?

THE WITNESS: No.

MR WILSON: Or anything to do with what was formally the HIP?

THE WITNESS: No.

MR WILSON: Going back, then, to what you were involved in. What was the status of morale of officers at the Department that transferred across to the Department of Climate Change?

THE WITNESS: We were pretty shattered and it was incredibly – the battle rhythm leading up to the crash was extraordinarily pressured. And we had Four Corners photographing – filming us as we came and went, and Senate inquiries, and it was quite – it was quite horrible, really. And it was quite a small group of people. I’m going to get emotional. And then we heard it on the radio and I think we felt it was – couldn’t help feeling it was our fault in some way, and that was awful. And – and naturally, Climate Change people felt that – what were we doing there and did they really want us, and I remember Mr Parkinson got us all together as a new department to try and talk to us and sort of build – start building us as a team. And some reporters snuck in and it was in the papers. Anyway, it was really horrible.


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MR WILSON: And was some professional help offered to you? In fact, to all of you.

THE WITNESS: Yes.

MR WILSON: And that was by the Department of Climate Change.

THE WITNESS: Yes.

MR WILSON: Had any similar offer been made - - -

THE WITNESS: Earlier?

MR WILSON: - - - earlier?

THE WITNESS: I can’t remember. I can’t remember. I’m sorry.

MR WILSON: Thank you very much.

COMMISSIONER: Before you start gentlemen – or ladies and gentlemen at the bar table ..... confine your cross-examination to 15 minutes each with the exception of Mr O’Donovan and Mr McLeod. Okay. 15 minutes maximum each. Mr Perry.

<EXAMINATION BY MR PERRY [12.08 pm]

MR PERRY: ..... paragraph 15 please. Line managers. Was Beth Riordan a line manager?

THE WITNESS: No, she had left by this point.

MR PERRY: Right. She was there when you were there for a while.

THE WITNESS: No.

MR PERRY: Not at all?

THE WITNESS: No.

MR PERRY: Okay. Go across to 25. Do you know a fellow called Delbridge?

THE WITNESS: No.

MR PERRY: No? All right. Thank you. To 27 – you weren’t given the minutes of the industry stakeholder meetings that occurred prior to you - - -

9.4.14 P-2451 A.S. KENT XN©Commonwealth of Australia MR PERRY

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THE WITNESS: No.

MR PERRY: - - - arriving. Did you ask for them?

THE WITNESS: No.

MR PERRY: Why wouldn’t you ask for them?

THE WITNESS: Well, I – I started at a point in the process where the risks had been analysed, the management had made decisions about where the priorities were and what we were doing and I – it was my job to progress that and not to go back and re-examine decisions that had already made.

MR PERRY: AGS.002.023.0926 please. Sorry, 0926, not 0296. My mistake. Industry consultation meetings. Scroll down please, about two-thirds of the way through. We might have gone past it. Stop. Do you see the fourth dot point, “It was proposed”? Got that paragraph?

THE WITNESS: Yes.

MR PERRY: Go to the very last two sentences. Peter Ruz.

THE WITNESS: So it was agreed that a common - - -

MR PERRY: No. Peter Ruz provided an example.


MR PERRY: Got it?

THE WITNESS: Yes.

MR PERRY: Quickly read those last two.

THE WITNESS: Yes.

MR PERRY: Mr Ruz was an employee, a representative of Fletchers who were one of the really major players. He’s telling an industry consultation meeting about electrocutions in New Zealand under a similar program.

THE WITNESS: Right.

MR PERRY: If you have received such a note, would it have factored into any of your considerations, or not?


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THE WITNESS: Well, what I would have done is gone to – well, two people – whoever was the nominated risk owner for that issue and probably Mr Keefe and I would have said to them - - -

MR PERRY: Who would have been the nominated risk owner for issues of electrocution of installers?

THE WITNESS: It would have been issues around technical issues to do with installation, I think.

MR PERRY: And who’s that?

THE WITNESS: At what point?

MR PERRY: Yes, I know. I mean, I might have to ask for a couple of names, you see.

THE WITNESS: Yes. Could have been Mr Davidson. It could have been Mr Kimber.

MR PERRY: Right. Thank you.

THE WITNESS: Yes.

MR PERRY: Now, can you then – AGS.002.017.1602. This is Mr Ruz again on the 19th to Ms Riordan. Okay.

THE WITNESS: Mmm.

MR PERRY: See the second paragraph, “I would like to stress.” Right. Got that paragraph?

THE WITNESS: Yes.

MR PERRY: All right. The last sentence, “Moreover, reflected products.” Got that?

THE WITNESS: Mmm.

MR PERRY: Read that sentence.

THE WITNESS: Okay, yes.

MR PERRY: That’s how Matthew Fuller actually died in October, about eight months later.

THE WITNESS: Right.


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MR PERRY: If this email had been brought to your attention, what would you have done about it?

THE WITNESS: I – so I would have gone to Mr Keefe and whoever the risk owner was and raised it with them.

MR PERRY: For what purpose would you go to them?

THE WITNESS: To say to them, “This looks like a – a major risk. Let’s put it on the risk register.”

MR PERRY: That is, if you were made aware of this, you would have put it in the risk register an understanding of what you say about the inability of the commonwealth to mandate OH&S matters.

THE WITNESS: No, I would have gone to the people that owned the risk and talked to them about what they wanted to do about it.

MR PERRY: No - - -

THE WITNESS: It wouldn’t have been my choice to put it on or off.

MR PERRY: All right. But I understand from your evidence, one of the reasons that installer safety was not put in the risk register was it was considered to be a state OH&S issue.

THE WITNESS: Yes.

MR PERRY: So ..... very real prospect that notwithstanding these blunt and somewhat impressive warnings, the position of the risk register would have been not to address it because it wasn’t part of their problem.

THE WITNESS: Well, it’s a bit difficult to comment on something that didn’t – that’s hypothetical, in a sense.

MR PERRY: I know. But I’m asking if – that’s consistent with the approach of the risk register development with respect to installer safety, isn’t it?

THE WITNESS: The – the consistent approach was that OH&S was a state and a jurisdictional matter, yes.

MR PERRY: So installer safety wasn’t included in it because it was a state OH&S matter?

THE WITNESS: But that doesn’t mean that if I saw an issue like this come to my attention, I would still not have gone to the relevant people and said, “Do you want to reconsider the risk register based on this?”


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MR PERRY: Paragraph 23 of your statement, please.

THE WITNESS: Yes.

MR PERRY: The proactive process. You spoke to Mr Wilson about protocols and processes, that is, information flow in order to bring things to people’s attention. Were they actually ever set out anywhere what the protocols or processes were?

THE WITNESS: Yes. We did have an escalation protocol in the workshop we talked about this morning.

MR PERRY: All right.

THE WITNESS: And it was put to PCG and it was explained to risk owners - - -

MR PERRY: When was that, roughly?

THE WITNESS: It’s in – I think it was May.

MR PERRY: Thank you. Will you go, please, to CPS.002.001.2920. This is a thing called a construction industry pocketbook. Are you familiar with it?

THE WITNESS: I’m – I’m familiar with its existence. I’m sorry, I can’t say I’m familiar with the detailed content.

MR PERRY: Right. As you say you’re familiar with its existence, it was, it would appear, developed by the construction industry people in response to a request from your department.

THE WITNESS: Okay.

MR PERRY: Who would have been the line manager in respect of that document and its contents, if that’s easily answered?

THE WITNESS: Either Mr Davidson or Mr Kimber, I think.

MR PERRY: All right. Go to page 35. This is in August you see in this thing?

THE WITNESS: No.

MR PERRY: This is about two months before Matthew Fuller was killed.

THE WITNESS: Yes.

MR PERRY: Just scroll down a bit. The other way, I mean by “down”, I’m sorry. Keep going. That’s it. Do you see the warning in the middle?


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THE WITNESS: Yes.

MR PERRY: With the somewhat apparent drawings as well.

THE WITNESS: Mmm.

MR PERRY: Now, two months before Matthew Fuller is killed, a booklet prepared by these people at the request of your department sets out the warning in these terms:

The practice of stapling RFLs to ceiling joists poses a high risk of electrocution.

Were you aware of that warning?

THE WITNESS: No.

MR PERRY: In the protocols and processes that you talk about where information of importance is meant to be shared, how does this not come to the attention of, for example, you and/or the PCG?

THE WITNESS: Because the risk owner would have looked at it and see – and not raised it with us because they wouldn’t have seen it as part of their purview.

MR PERRY: Thank you. Can I ask you about paragraph 20. Do you see the last sentence? The last two sentences? “PM&C consistently advocating”.

THE WITNESS: Mmm.

MR PERRY: Are those consistent approaches by PM&C or the policy expressed by PM&C ever included in the minutes of the PCG meetings?

THE WITNESS: Do you mean the specific government policy around this?

MR PERRY: Well, what you say PM&C were consistently advocating at the PCG meetings, were those consistent statements ever included in the minutes?

THE WITNESS: I don’t know what – to what extent they were reflected in the minutes in detail.

MR PERRY: Were you the minute taker?

THE WITNESS: One of my team was.

MR PERRY: Who was that?

THE WITNESS: I think it was Margaret Gray.


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MR PERRY: Did you review the minutes?

THE WITNESS: Yes. I would have checked them before they went back but we’re talking a long time ago. I don’t know. I can’t recall the detail of every set of minutes.

MR PERRY: Thank you. Now, can I take you, please, to 35. The policy team you’ve been asked about, that is, how to change the policy as things arise. I’ve taken you to that construction industry pocketbook in August. That would be precisely the sort of matter that the policy team should be considering, should it not?

THE WITNESS: I can’t remember. Certainly, I would have thought they would have input into it and even if they didn’t have ownership of preparing it - - -

MR PERRY: Well, let’s turn it around. If the policy team were provided with such a booklet, would that be part of their remit to consider changes to policy, or would it again be considered not of relevance because it wasn’t part of the commonwealth risk strategy?

THE WITNESS: I don’t know what the policy team was shown or how they would have assessed it.

MR PERRY: Wasn’t the policy team there to make changes as issues arose?

THE WITNESS: Yes. I didn’t supervise them. I’m sorry, I can’t - - -

MR PERRY: You may not have. Who did supervise them?

THE WITNESS: Mr Keefe.

MR PERRY: Kathy Belka .....

THE WITNESS: She was the director.

MR PERRY: Okay. Thank you. Now, could I ask you about 39.

THE WITNESS: Yes.

MR PERRY: The second last line. The assumption seems to be, by reason of the business model, that a supervisor will be onsite for at least part of the installation.

THE WITNESS: Mmm.

MR PERRY: That’s the highest at which the assumption about the presence of the supervisor existed?

THE WITNESS: Yes.


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MR PERRY: Thank you. The next paragraph. Just explain this to me. You say:

I thought that it was reasonable risk management that, it there is an unskilled installer … he or she should be supervised by a skilled supervisor –

and this word –

before they can actually get on board and start getting paid.

What does that mean? Do you think supervision and training meant to happen before someone could make a payment claim?

THE WITNESS: Sorry, which one are we on? 40?

MR PERRY: Yes. 40. The first sentence:

I thought that it was reasonable risk management that, if there is an unskilled installer - - -

THE WITNESS: Yes.

MR PERRY:

- - - that he or she be supervised by a skilled supervisor.

Okay. And that part. And then this word:

… before they can actually get on board and start getting paid.

As I read it, that rather means that the supervision of training should happen before a payment claim to be made in respect of any work done by them.

THE WITNESS: I – my reading of that is that that arrangement needed to be in place before the person started. So - - -

MR PERRY: I understand.

THE WITNESS: Do you know what I mean?

MR PERRY: That is, there should be an arrangement somewhere you say before the person was employed that they would be - - -

THE WITNESS: So the employer should be prepared, before they start, to provide this supervision.

MR PERRY: Right. Before a claim could be made, because you say “start getting paid”?


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THE WITNESS: Yes.

MR PERRY: Right, and Mr Wilson has asked you questions about when it was that people started to suspect that the supervision regime of any kind was actually not involving on-site supervision. Do you remember the questions?

THE WITNESS: Sorry, I’m - - -

MR PERRY: And you said about a month - - -

THE WITNESS: Can you ask the question again?

MR PERRY: Yes. Well, because of the timeframe, I’ve got to be quick. About a month into the scheme, there seemed to be suspicions arising that on-site supervision was, in fact, not happening.

THE WITNESS: Yes, starting to appear. Yes.

MR PERRY: Yes, okay. 47 – sorry, 48. You’re talking about the draft report which was referred to above. Then in 49 you say you agree with the statement which is in quotes in 48. Got that?

THE WITNESS: Mm.

MR PERRY: As I read that statement, what that seems to establish is this, that everyone should be happy that some form of program rolled out on 1 July, and then after it rolled out you looked at fill in the governance, etcetera.

THE WITNESS: Well, I don’t know about “everybody should be happy” but it was a fact that after we started on 1 July we then started to fit the compliance regime.

MR PERRY: Because in 49:

The Commonwealth was trying to fit a governance and risk processes retrospectively, particularly in relation to compliance.

PWC didn’t come on board till, what, the end of September, was it?

THE WITNESS: Yes, some time then, yes.

MR PERRY: So July, August, September, three months of the program running and the compliance regime, which had been a significant feature of the program rollout, still wasn’t in place.

THE WITNESS: Well, there was a compliance process in place from 1 July.

MR PERRY: What, the desktop audits?


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THE WITNESS: The desktop audits and the daily reviewing of claims and Protiviti.

MR PERRY: Yes, except no one was going out and looking into roofs, were they?

THE WITNESS: Well, I’m not sure about that. There was differing information. I think Mr Mulligan, when he started – actually started going out and doing inspections, I think.

MR PERRY: This is the chap from the ATO and his qualifications, in terms of insulation installation, were what?

THE WITNESS: I don’t think he probably had any.

MR PERRY: Right.

THE WITNESS: He relied on others for that.

MR PERRY: Right. Will you go to 56.

THE WITNESS: Yes.

MR PERRY: State liaison. Can you turn up, please, QIC.006.001.2921. All right. These are some emails. Scroll down, please, because it’s late, it’s the 1st. Right, and I want to go to the head of that email from Troy Delbridge. Right. Now, Troy Delbridge was in the department somewhere, or in the division.

THE WITNESS: Right. I don’t - - -

MR PERRY: You didn’t know him?

THE WITNESS: I don’t remember him, no.

MR PERRY: All right. This is to a Tim Campbell of Queensland, dot GOV dot AU. Scroll down, please. This is what he, Mr Delbridge, or Dr Delbridge is saying in July. Do you see:

I have spoken to Linda Pratley –

about the second paragraph?

THE WITNESS: Yes.

MR PERRY: Continuing:

- about some very important OH&S issues.

Linda Pratley is at WorkSafe Australia, that’s a Commonwealth body.


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THE WITNESS: Okay.

MR PERRY: You know that, don’t you?

THE WITNESS: No.

MR PERRY: No:

...that have been identified in the work being undertaken by insulation installers under our home insulation programs.

Did you ever – were you ever made aware of this activity by Dr Delbridge and the concerns that he expresses in this email?

THE WITNESS: No.

MR PERRY: Under the protocols and processes for information sharing that you spoke about, should this not have come to your attention and that of the PCG?

THE WITNESS: Yes.

MR PERRY: Yes. Right, scroll down a bit.

COMMISSIONER: Mr Perry, your time is up. Can you finish?

MR PERRY: I will finish this question and then sit down, if I may.

COMMISSIONER: Yes, but you might have to talk to Mr Potts then.

MR PERRY: Yes. No, no, I purchased a credit from Mr Windsor beside me, if that’s all right.

COMMISSIONER: No, no, there’s no purchasing.

MR PERRY: Look, we can run a mark on this.

MR WINDSOR: I can lend him 10 minutes, sir.

MR PERRY: That’s good. Thank you. The trouble reading these documents through the witnesses, that’s what takes up time.

Now, Dr Delbridge is talking to someone at – in the Queensland Government about the issues arising out of unskilled and untrained installers. Just scroll down a bit, please, if you would. I will see if I can find it. Do you see, given the high profile of these programs, right, in that paragraph, four lines down:

Given the scale of the insulation rebate programs –


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have you got that sentence? Read that sentence to yourself.

THE WITNESS: Right.

MR PERRY: Here’s Dr Delbridge expressing a view in July that the large number of new entrants will lead inevitably to consequences. Was that sort of concern, expressed by this gentleman, ever filtered up through the protocols and processes that you say were established to do – to achieve precisely that end?

THE WITNESS: Yes. No.

MR PERRY: No. They were meant to, weren’t they?

THE WITNESS: Well, we did – we put as many – we can put as many processes in place as we can but, at the end of the day, the risk owner has the responsibility to make sure that risks are identified and raised.

MR PERRY: The processes might be put in place in a theoretical respect but, as I understand from your answer, here is someone in the very division or the department raising just the sort of issue that seems to give rise to the fatalities that later occurred, and it doesn’t come to your attention or, therefore, the PCG. Is that right?

THE WITNESS: That’s right.

COMMISSIONER: Thank you, Mr Perry.

MR PERRY: All right. That seems to be my 15.

COMMISSIONER: It’s more, Mr Perry, in fact. Do you want to go next?

MR WINDSOR: Thank you, Commissioner.

<EXAMINATION BY MR WINDSOR [12.26 pm]

MR WINDSOR: Ms Kent, I appear on behalf of some persons and entities that were involved in the HIP program prior to – I’m sorry, involved in the insulation industry prior to the HIP program. I am going to ask the operator to put up on the screen for you COA.002.001.2798. And whilst that’s coming up, I will just remind you of the general subject matter. Mr Wilson asked you some questions about analyses done in late January and/or in February 2010. Do you recall that series of questions?

THE WITNESS: Yes.

MR WINDSOR: Now, you have in front of you a document which is headed Scenario Analysis at 27 January 2010.

9.4.14 P-2462 A.S. KENT XN©Commonwealth of Australia MR WINDSOR

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THE WITNESS: Okay.

MR WINDSOR: Do you recall seeing that document before?

THE WITNESS: Yes, I do remember this conversation. Yes.

MR WINDSOR: Well, do you recall seeing that document before?

THE WITNESS: Yes.

MR WINDSOR: All right. Was it a document that you constructed?

THE WITNESS: No, I – I’m not sure. I think it might have been Mr Hughes that did this, but it’s possible that we took the minutes and put the document together.

MR WINDSOR: Well, do you recall discussing with Ms Coaldrake the production of a document such as this document?

THE WITNESS: Production of documents for here?

MR WINDSOR: No, the document that you have in front of you there on the screen?

THE WITNESS: I haven’t discussed production of documents with anybody.

MR WINDSOR: I’m sorry, putting together, making up, constructing as in creating the document.

THE WITNESS: I – as I remember, we – from my memory of the meeting, which is not vivid, but I seem to remember a conversation about how would we - how would we, in the group, how would we meet – map this, would it be a table, would it be, you know – and I – so I think this construct was actually what my memory was that the group came up with on the spot.

MR WINDSOR: All right. Well, did you put information into a document such as the information contained in the first line of items there under the heading Detailed Scenario, and then we’ve got scenarios 1A, 1B, 2, 3?

THE WITNESS: Mm.

MR WINDSOR: Did you put those together?

THE WITNESS: No, I think the whole group did it. And my memory of this, it was a group discussion and we all had input.

MR WINDSOR: All right. Including Ms Coaldrake?


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THE WITNESS: I think she was there.

MR WINDSOR: Do you recall whether, or what her role was during the course of putting together this document?

THE WITNESS: I have to say, when I say I think she was there, I can’t be sure she was. I wouldn’t like to give the wrong impression. But if she had been there, she would have been facilitating the group.

MR WINDSOR: All right. Can I ask you to go to the sixth column, that is the column over on the extreme right of that page. You will see it says:

Work up scenarios including possible date, size of spike, etcetera, based on previous experience.

THE WITNESS: Yes.

MR WINDSOR: Do you recall whether the previous experience being referred to was the experience of how many installations were done monthly?

THE WITNESS: That’s what size of spike suggests, doesn’t it? Yes.

MR WINDSOR: Well, is it that you’re just not sure?

THE WITNESS: I’m not sure.

MR WINDSOR: All right. What about the reference to 31 Jan, and then it has got a date – then it has got the word “name” after it?

THE WITNESS: Yes.

MR WINDSOR: Can you assist us by telling us what you understood that date and that reference to name - - -

THE WITNESS: I’m sorry, I can’t remember.

[12.30 pm]MR WINDSOR: All right. Well, perhaps if you go down to the item immediately under the one I’ve just taken you to. It has got the reference to 31 Jan, and then it has got “Anne-Marie Delahunt”. Could you assist us in indicating what you understood that date and the reference to Ms Delahunt was in that particular box?

THE WITNESS: Can you remind me again what’s the date of this document? Sorry.

MR WINDSOR: Well, you will see if you scroll up to the top, it’s dated 27 January - - -


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THE WITNESS: Okay.

MR WINDSOR: - - - 2010.

THE WITNESS: I’m with you. I’m with you. So Ms Delahunt – from memory, I think she was the assistant secretary in charge of compliance and so she would have been responsible for managing risks around deaths, injuries, fires and so on. And I guess the 31 January was when we wanted people to come back to us with the work that they had done.

MR WINDSOR: Thank you. Could you scroll down, please, over to the next page and you will see on the – once again, on the right-hand column, “Prepare revised CAATs”. What ..... CAATs?

THE WITNESS: That was the scan that was run over the claims for payment to identify outliers so if somebody – you know, so there was a threshold set of – you know, four installs a day in a metropolitan area was as many as we thought reasonable for a supervisor to be on site and if they were over that threshold then they were identified as something that might need requirements. So I think the – my memory of the CAAT scans is that it was about running the claims through a scan and identifying which didn’t fit - - -

MR WINDSOR: Thank you.

THE WITNESS: - - - the required standard.

MR WINDSOR: Staying with that box, there’s a reference at the bottom of that box to:

Develop policy position on rectification fund.

What was that about?

THE WITNESS: Can you just scroll up a bit please so I can – so it’s under the stakeholder heading. If you can go back down again now, please – and householders. So rectification suggests to me that we were wanting a policy position if someone – if a householder came and said “an installer has done a bad job on our house”, the Commonwealth pay to have it rectified. That’s what it seems logical to me to be - - -

MR WINDSOR: All right. Could you please scroll down, a little further and further. Now, I’m just taking you or directing your attention to the stakeholder impact risk individual installers. Do you see that?

THE WITNESS: Yes.


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MR WINDSOR: ..... of the group, including yourself at this time when this document was being prepared, it was anticipated that a large number of persons – being individual installers – would become unemployed. Do you see that in - - -

THE WITNESS: Yes, I see that. Yes. Yes.

MR WINDSOR: Was that the case?

THE WITNESS: Well, that’s what’s written there.

MR WINDSOR: All right. And likewise, sole traders would become bankrupt.

THE WITNESS: Yes.

MR WINDSOR: Thank you. Could I ask you to go over the page, please. If you could scroll down a little further. Stopping there, thank you. We’ve moved on, in the left-hand column, to stakeholder impact risk installer businesses and a different category to the last one. But could I ask you to go to the column over on the extreme right, please.

THE WITNESS: Yes.

MR WINDSOR: Starting at the bottom, there’s a reference to prepare policy on exemptions and grandfathering. What is your recall of what was meant by that reference?

THE WITNESS: Look, I would have – I would be guessing, honestly. Grandfathering is usually what we – what we would do if there was a particular category of people that we thought were particularly unfairly impacted or vulnerable and sometimes the Commonwealth or other funders will support people through a transition. That’s usually what grandfathering means.

MR WINDSOR: All right. And who was given responsibility for developing a program policy or task oriented activity in respect of preparing policy on exemptions and grandfathering?

THE WITNESS: I could only tell you by reading the document. I couldn’t remember, I’m sorry.

MR WINDSOR: And the document itself doesn’t tell us.

THE WITNESS: Okay.

MR WINDSOR: At least that particular box does not tell us.


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THE WITNESS: In terms of the taskforce – so I’m just trying to think who in the taskforce might have been responsible for that. I can’t remember where program policy sat, I’m sorry.

MR WINDSOR: Thank you. Could I ask you to scroll down to one more box, please. Just a little further. You will see – thank you very much – left-hand side, contractual impact Medicare. What was meant by that reference there?

THE WITNESS: Well, we had a relationship with Medicare where we had agreed processes and systems in place, and when changes like this were made it meant that Medicare had to adjust – we had to adjust the business rules of Medicare and they had to make adjustments to their systems and processes.

MR WINDSOR: So this is the contractual impact of the relationship between Medicare and the Department or Medicare and some other entity?

THE WITNESS: Well, I read this as Medicare and the Department.

MR WINDSOR: Thank you. Thank you, Commissioner.

COMMISSIONER: Thank you. Mr Keim.

<EXAMINATION BY MR KEIM [12.35 pm]

MR KEIM: Thank you, Commissioner. My question – my first question arises, Ms Kent, and firstly can I tell you that I act for the family of Mitchell Sweeney. He is the young man who died outside Cairns on 4 February 2010. Yes, my first question arises out of paragraph 17 of your statement. As I understand from your evidence generally, it was a view held generally within – among the people with whom you were working - - -

THE WITNESS: Yes.

MR KEIM: - - - that injuries or death to installers doing the program was not something that was a risk to the Commonwealth. And it seems to flow from that as part of that proposition that injuries and deaths to installers wasn’t something that would potentially damage the reputation of the Commonwealth. Is that a view that you held?

THE WITNESS: I think – I think - - -

MR KEIM: Or is that a view that was generally held, first?

THE WITNESS: I think the generally held view was that it was a risk that we couldn’t control so therefore we couldn’t take ownership of it.

9.4.14 P-2467 A.S. KENT XN©Commonwealth of Australia MR KEIM

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MR KEIM: I just wanted to ask you this with regard to that. Well, first, could I clarify – the view was, was it, that it was a risk to the damage of – a risk to the reputation of the Commonwealth but the decision was made that it couldn’t be controlled therefore nothing would be done. Is that the - - -

THE WITNESS: No.

MR KEIM: Is that what follows from your last answer?

THE WITNESS: No, no. It wasn’t in the context of whether it was a reputational risk to the Department. I mean, the reality was that we, as a Commonwealth – I think the group feeling was that we couldn’t go into a business and check whether they’re complying with their responsibilities. We didn’t have the mandate to go in and do that with them and we didn’t have an operational capacity to do that either, but that those rested with the jurisdictions and therefore they had control over ensuring that employers complied with their OH&S responsibilities. We didn’t have that control. We didn’t have that regulatory authority or power so therefore we couldn’t control that and so we didn’t own the risk. That was the group’s consensus.

MR KEIM: But there must be some associated propositions that you held that go along with that because even taking all of that into account, it must have been possible for the group to make – to take a view as to whether, if four deaths occurred ..... damage the reputation of the Commonwealth.


MR KEIM: What was the deal with the group with regard to that?

THE WITNESS: - - - at this point – at this point it’s before 1 July when we’re – my statement refers to.

MR KEIM: Yes.

THE WITNESS: What – by the – by February, Ms Delahunt, as I understood, had taken over in the taskforce managing those risks so I couldn’t tell you what she was thinking at that point.

MR KEIM: I’m asking you about the period of May/June.

THE WITNESS: Right.

MR KEIM: It was always possible - - -

THE WITNESS: Yes.

MR KEIM: - - - that installers could be injured.


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THE WITNESS: Yes.

MR KEIM: It was always possible that they could be killed. If you came to the conclusion that we won’t own that risk then that conclusion must have been made on the basis of a realisation that these things were possibilities.

THE WITNESS: Yes.

MR KEIM: So I’m really asking as part of that thinking process it must have been the case that you decided either that it wasn’t a risk to the Commonwealth or it was a risk to the Commonwealth, at least to the reputation. What was the view of the group with regard to that, as far as you can remember?

THE WITNESS: The – the risk to the Commonwealth – the reputational risk to the Commonwealth I don’t think was discussed at all in any depth. I think if someone had asked the group, “Where is the reputational risk here?” we would have said to the state and territory authorities, the regulators.

MR KEIM: So the view was if you had thought about it that it wasn’t a risk to the Commonwealth.

THE WITNESS: Yes.

MR KEIM: Now, I wanted to ask you this and it is a personal question. In your job as the risk manager – was that your job?

THE WITNESS: Yes.

MR KEIM: Was it part of your role to question assumptions like that?

THE WITNESS: Well, yes, I thought if – absolutely.

MR KEIM: All right. And do you now accept that that assumption was clearly the wrong assumption?

THE WITNESS: Yes. MR KEIM: And is that something that you now regret not having questioned?

THE WITNESS: Yes.

MR KEIM: I wanted to ask you perhaps similar questions with regard to conferring with the state workplace health and safety bodies. This comes out of paragraph 18. I suppose the preliminary question I wanted to ask you was this: that even if there was a concern about lack of uptake, it would have still been clear to you and your team at that stage that even – I will interrupt my question and preface with this: the figures


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we’ve heard is that it was a 24 – to achieve the program it was a 24-fold increase on existing retrofitting that was taking place; were you aware of figures like that?

THE WITNESS: No.

MR KEIM: But you were aware that it was an immense increase that was planned?

THE WITNESS: My awareness – are we talking about the period leading up to when we launched? What time period is this?

MR KEIM: Yes. Leading up to 1 July.

THE WITNESS: So I remember Ernst & Young did some work for us. I can’t remember what it was in relation to, but their identification of the biggest risk to the program was that no one would take it up, and while it was hoped that the program would be successful in getting lots of people into work and getting the money out, but really leading up until July I think most people thought it would be a very slow uptake, and the focus was more on how would we – how could we make sure that it was easy for people to get into and encourage them to pick it up.

MR KEIM: And I will get back to my question: because we’re looking at a very big intake, even if it had fallen short of what was required to achieve the dimensions of the program - - -

THE WITNESS: Or what was hoped, yes.

MR KEIM: - - - that would have still resulted in quite a large increased workload for state workplace health and safety agencies; is that correct?

THE WITNESS: Possibly, yes.

MR KEIM: And if it did achieve it, what was anticipated - - -

THE WITNESS: Yes.

MR KEIM: - - - that would have been a very significant increase in workload for state - - -

THE WITNESS: Yes.

MR KEIM: - - - workplace health and safety agencies. And as it turned out, it was greater than anticipated?

THE WITNESS: Mmm.

MR KEIM: As I take your evidence, you perhaps thought that people were contacting state OH&S bodies, but you weren’t aware one way or another?


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THE WITNESS: No. I think Mr Forbes mentioned to me, and I think he said it again in his evidence that they were – he was actually expecting that the states and territories would come to us and ask for funding to meet any impost that they couldn’t cope with, and that would be quite a common thing with Commonwealth/state relations, that the states would let us know if something the Commonwealth was doing was causing additional costs. They’re usually not shy about coming to us and saying that they would require additional funding or support from the Commonwealth, so - - -

MR KEIM: But you accept now, don’t you, that it would have been appropriate – in fact, it should have been done that somebody associated with the program should have communicated with the state workplace health and safety authorities directly?

THE WITNESS: Well, we certainly could have, yes.

MR KEIM: Well, I put it higher: should have?

MR O'DONOVAN: Sorry. I object to the premise.

COMMISSIONER: Yes.

MR O'DONOVAN: The question which is that no one did, when we’ve seen a document earlier today that clearly establishes that someone did.

COMMISSIONER: Mr Keim.

MR KEIM: I’m sorry. If my learned friend was referring to the document in July?

MR O'DONOVAN: Yes. MR KEIM: Yes. I’m – I take my learned friend’s point, but I’m asking you about the period in the lead-up to 1 July.

THE WITNESS: Yes. I – so - - -

MR KEIM: Before the launch.

THE WITNESS: Yes. We could have gone to the states and territories, and when the installs started coming in, tell them about the rate. Whether we should have, I don’t know if I can comment on that.

MR KEIM: Can I just push that one step further in the light of what you said about Mr Forbes’ evidence in that regard. It would have been appropriate, wouldn’t it, and I mean you’re a reasonably experienced policy person in this regard, it would have been appropriate to go to the states and say, if we get the uptake we expect, this is the extra workload you will have, or this will be what is happening in the roofs; will you


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require extra money to employ inspectors to make sure that this is operating? Will you require further information?

THE WITNESS: Well, I think that is something that could have been done, but in the context of the time and the experience with jurisdictions, as I say, I think Mr Forbes’ expectation was based on other experience with states and territories where they were very proactive about coming to us and asking for resource if they required it.

MR KEIM: So if you and I were doing a lessons learned now, one of the things it would state is, well, we should have made sure that the state workplace health and safety agencies were ready and resourced to deal with the workload; isn’t that correct?

THE WITNESS: Well, I think I would say to that the assumption that they would be able to cope proved to be wrong, yes.

MR KEIM: Yes. This is probably – comes from these first two areas that I have been exploring, but it was a different acceptance, I think, of different assumptions was made at the time, namely that workplace health and safety issues with regard to people working in this program was only a responsibility of the state workplace health and safety agencies; you agree that that assumption is wrong, don’t you?

THE WITNESS: Well, regulation of employer responsibilities was only a jurisdictional response.

MR KEIM: Yes. But in all the questions that my learned friend Mr Wilson took you about the control that would be done - - -

THE WITNESS: Yes.

MR KEIM: - - - with changing guidelines, with installer guidelines – sorry, with installer notifications and communications and with cutting off the money supply, clearly it was a wrong assumption to say that that was only a state responsibility?

THE WITNESS: Well, we could have cut off the money, but we could never have regulated employers’ responsibilities. We could have never prosecuted. We could have never had the authority to go on and check what they were doing, that the jurisdictions had the mandate for.

MR KEIM: That’s accepted.

THE WITNESS: Yes.

MR KEIM: But it’s a long way from that, isn’t it, to say that the safety of installers is not something that we had responsibility for?


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THE WITNESS: I – Ms Dawson pointed out that we had taken into account some aspect of our responsibility for safety in the sense that we were wanting training and so on in the guidelines. But there is a step between that and saying that we owned responsibility for making sure that the employers are compliant with their mandatory responsibilities about OH&S.

MR KEIM: That really brings us to a crucial dislocation in the way in which the program evolved.

THE WITNESS: Yes.

MR KEIM: At the beginning there was an emphasis on mandating training for the purpose of registration - - -

THE WITNESS: Mmm.

MR KEIM: - - - and on developing a national training program. Things were done with the Department of Employment - - -

THE WITNESS: Yes.

MR KEIM: - - - and with the Industry Skills Council to achieve that. So I would draw from that, and I will ask you to comment on it, the assumption at that stage was the Commonwealth did have some responsibility, notwithstanding it wasn’t the regulator with regards to installer safety.

THE WITNESS: Yes.

MR KEIM: Do you agree with that?

THE WITNESS: Yes.

MR KEIM: That’s a proper conclusion from those statements?

THE WITNESS: Yes.

MR KEIM: Do you think - - -

THE WITNESS: I think what that says is the limits of the mandate and the responsibilities that we had, people were trying to make sure that they did their best.

MR KEIM: Okay. And then the second part of the dislocation is this: that as we get closer to 1 July, as we see the training part roll out, as we see that the pocketbook won’t be available, this mantra starts to be chanted at PQC meetings that workplace health and safety matters is a state responsibility, not a Commonwealth responsibility.


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MR O'DONOVAN: Sorry. Just in relation to that question, I don’t recall any witness giving evidence that there was a mantra at the PPG meetings that it wasn’t responsible. My understanding is it was at 9 am staff meetings where it was suggested on two occasions, so I would just ask my friend to rephrase.

COMMISSIONER: You’re objecting to the use of the word “mantra”, really?

MR O'DONOVAN: Both to the use of the word “mantra” and to the location of that at the PCG meetings.

COMMISSIONER: Mr Keim.

MR KEIM: I take my learned friend’s correction. Thank you. I will ask the witness, firstly, was the fact – or was the view, the assumption that workplace health and safety issues were not a Commonwealth responsibility, they were a state responsibility?

THE WITNESS: Yes.

MR KEIM: Was that view expressed at PCG meetings?

THE WITNESS: I don’t – I will tell you what I remember.

MR KEIM: All right.

THE WITNESS: I don’t remember that appearing at PCG as a specific item for discussion. What I do remember is that it was – it was discussed on the edges of other things. And then when it was raised, there was a group consensus that it’s a state and Commonwealth matter. It wasn’t part of the formal discussion. I can’t remember it being part of one.

MR KEIM: But that’s at a PCG meeting?

THE WITNESS: Yes. But I can’t remember it being a formal part of it.

MR KEIM: Yes. But then, having had those discussions at the PCG meeting, it was then accepted as a working assumption for the purpose of your group? That was the guidance you took from the PCG?

THE WITNESS: Well, I don’t think the PCG necessarily made a guidance. I think it was just – we discussed it in our morning meetings and all the risk owners there agreed that that was the position. And whenever it was discussed in PCG, on the edges of something else, the people present there also agreed. But I don’t know if it was a formal position or - - -

MR KEIM: Okay.


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COMMISSIONER: Mr Keim, you’ve had your 15 minutes.

MR KEIM: Thank you for that.

COMMISSIONER: One – you know, have you got one more final question or not?

MR KEIM: I have. I have, Commissioner.


MR KEIM: Because I hadn’t thought to ask it. I want to ask you about the proposition that it was not the role of the program to discriminate between products.

THE WITNESS: Yes. Look, I’m not saying that’s my argument. I’m telling you that’s what I heard in the discussion. Yes.

MR KEIM: Yes. I just wanted to explore that with you briefly.

COMMISSIONER: No.

MR KEIM: Thank you, Commissioner.

COMMISSIONER: I said one more. Mr Bradley.

<EXAMINATION BY MR BRADLEY [12.52 pm]

MR BRADLEY: Thank you, Commissioner.

My name is Bradley, I appear for the State of Queensland. THE WITNESS: Okay.

MR BRADLEY: Now, can I just ask you these quick things about your statement. You assumed the role of risk manager, you say, for the department for the HIP program on 8 May. I think it’s paragraph 21 of your statement. THE WITNESS: Yes, yes.

MR BRADLEY: And the program was really being delivered by the department. THE WITNESS: Yes.

MR BRADLEY: Is there any importance in that, the fact that you are the risk manager for the department for HIP? Was there somebody else doing something else outside of the department?

9.4.14 P-2475 A.S. KENT XN©Commonwealth of Australia MR BRADLEY

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THE WITNESS: I see. Well, I think Medicare would have had their own internal risk manager looking at their processes and what they were doing. And, of course, we had Ms Coaldrake giving us the consultative advice on how we were running our risk and whether – you know, the quality of what we were doing.

MR BRADLEY: But she is only advising the department. THE WITNESS: Yes, that’s right.

MR BRADLEY: Well, then at paragraph 23 you talk about effectively monitoring what was happening, and identifying issues that were arising for the program. Again, what you were doing is something within the department? THE WITNESS: Yes.

MR BRADLEY: So you are – would it be correct to read you as saying you were, effectively, monitoring what was happening in the department? THE WITNESS: Yes.

MR BRADLEY: And you were identifying issues that were arising in the department? THE WITNESS: Yes.

MR BRADLEY: In paragraph 25 you’ve got this process in place where a staff member goes around to line areas once a week and talks to the line managers about emerging issues. THE WITNESS: Yes.

MR BRADLEY: Is that really a process where your – someone is listening to what the issues are and reporting back? THE WITNESS: No, I think it was two way, and it was sort of – in a sense I guess it was a three tier process. So Mr Nott, who was the EL1 that went around and did the weekly thing, we would probably have spoken before he went out on his rounds and thought about what we, as a little team, thought might have come up that he should raise. And they would also raise issues. And then the next tier would be the draft risk registers coming in, and I would have looked at them and might have gone back. And then the third tier, of course, was when it comes to PCG and people have the opportunity then to - - -

MR BRADLEY: All right. Well, I will just ask you about that exercise of going round to the line managers.


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THE WITNESS: Yes.

MR BRADLEY: Was there a line manager responsible for insulation technology and evaluation? THE WITNESS: I think that would have sat under Mr Davidson, I think.

MR BRADLEY: And would that have been – would Mr Davidson have been someone who was spoken to weekly about emerging issues? THE WITNESS: Yes, yes.

MR BRADLEY: Thank you. In paragraphs 38 and in 42 of your statement you say that you were not involved in a decision. In 38, you weren’t involved in the decision to change the training requirements. THE WITNESS: Yes.

MR BRADLEY: And in 42 you weren’t – not particularly involved in decisions regarding training requirements. THE WITNESS: Mm.

MR BRADLEY: Does that just mean you didn’t say anything about that at the meeting? THE WITNESS: I mean, I wasn’t – it would have been run all – entirely by Mr Davidson and Mr Keefe. I wouldn’t have participated in the discussions or the meetings. My role would have been around - - -

MR BRADLEY: Thank you. If you go to paragraph 61, one of your tasks, you say, was to set up the governance framework and establish operational capability - - - THE WITNESS: Yes.

MR BRADLEY: - - - amongst other things, from monitoring compliance with the program guidelines. Now, what you did in that process, you excluded the question about supervision of instalments from that compliance process? THE WITNESS: No.

MR BRADLEY: I thought that’s what you actually said. THE WITNESS: When I was setting – keeping in mind, my job was not so much about the content of methodology of compliance and what would be in or out, my job was more about setting up the capabilities so - - -


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MR BRADLEY: I see. But in paragraph 67 of your statement, if you read the first line of that. THE WITNESS: Yes. Yes, it wasn’t – the process at that point was not targeting or checking whether supervisors were on site in the sense that it was a target – what we were looking at initially was on forward focused and whether people were claiming more installs in a day.

MR BRADLEY: I understand. THE WITNESS: Yes.

MR BRADLEY: My question is, the processes that you set up, they didn’t include a process for determining whether installers - - - THE WITNESS: Specifically targeting, no, no. No.

MR BRADLEY: And you continued in that role, do you say, until the ATO secondees arrived in early August? THE WITNESS: Yes.

MR BRADLEY: Do you recall how many installers were registered on the site by the time you were approaching 1 July? THE WITNESS: I’ve got no idea, I’m sorry.

MR BRADLEY: How many inspectors, auditors and compliance officers did you have in place to commence on 1 July? THE WITNESS: On 1 July, the resource we had was Protiviti, our internal auditors.

MR BRADLEY: Okay. And the internal auditors did no roof inspections? THE WITNESS: Well - - -

MR BRADLEY: I thought that’s what you said in paragraph 66 of your statement. THE WITNESS: I do say that in paragraph 66, but I’m just wondering if – I noticed another – I think another witness said they thought there were roof inspections going on. So I’m just wondering if I was wrong about that.

MR BRADLEY: You say:

I do not recall that they ever did any roof inspections - - - THE WITNESS: I don’t recall that, no.


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MR BRADLEY:

- - - as they did not have the technical expertise to do that. THE WITNESS: No, I don’t recall that.

MR BRADLEY: Do you know how many inspectors, auditors or compliance officers were employed by 1 August? THE WITNESS: No. By 1 August? By the department? None.

MR BRADLEY: Yes. Within this process that you were setting up. THE WITNESS: Yes. By 1 August, I think there were people from Protiviti doing – starting to do desktop audits.

MR BRADLEY: Do you know how many? THE WITNESS: No, I don’t, sorry.

MR BRADLEY: Then the inspection process that became involved in this compliance thing, that was a post-installation inspection process. THE WITNESS: It was.

MR BRADLEY: And would it be fair to say that by mid-October fewer than 200 actual inspections had been done of installation work? THE WITNESS: I couldn’t tell you, I’m sorry.

MR BRADLEY: If you have a look at exhibit AK3 to your statement – and for the processes, that’s document NTA.002.001.0144. I think you were shown this letter before by Mr Wilson. It’s your letter to – this is an example of a letter to one of the state jurisdictions. It’s to the Consumer Affairs Commissioner in the Northern Territory. In the bundle I have it’s NTA.002.001.0144 but it’s actually exhibit AK3 to the statement. Valuable seconds are passing. That doesn’t seem to be the document. Perhaps we could find it over lunch.

COMMISSIONER: We will adjourn for lunch – we will adjourn for lunch now, Mr Bradley. We will adjourn for lunch now.

MR BRADLEY: I assure you, Commissioner, I’ve actually only got three more questions.

COMMISSIONER: But you still want to see this document?

MR BRADLEY: I do still want to see the document, yes.


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COMMISSIONER: Can you find it quickly or not? You’ve got it now? Okay. MR BRADLEY: Could you go to the middle of the page, do you see the paragraph beginning, “The department has extensive”? THE WITNESS: Yes.

MR BRADLEY: This is your letter, I think, if you have a look at the end of it you will see it’s from you. THE WITNESS: Yes, in October, yes.

[1.00 pm] MR BRADLEY: And I think Mr Wilson established the letter that responded to this gave this letter a date of about 16 October. THE WITNESS: Yes, it went out then.

MR BRADLEY: So at that time you were telling the state and territory jurisdictions what is set out in that paragraph? THE WITNESS: Yes.

MR BRADLEY: Particularly speaking about conducting inspections of houses that have been insulted with the program. THE WITNESS: Well, PWC would have been doing that by now.

MR BRADLEY: Did you have any idea at the time you wrote this letter how many inspections had been done? THE WITNESS: I would have, but I can’t recall now how many were done. But I would have at the time, yes.

MR BRADLEY: Do you recall whether it was a very large number? THE WITNESS: It was – yes, it was certainly – when PWC started, they started with a smaller number and built up the rhythm over time so – what – I can’t tell you now exactly how many inspections a week were happening in October, but I can tell you when I wrote this I would have known.

MR BRADLEY: I think you were taken to documents that showed the engagement of PWC to do things, to then engage UGL to do inspections. THE WITNESS: No, they took UGL on - - -

MR BRADLEY: Later.


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THE WITNESS: - - - before that – no. Part of the initial contract was always that it was subcontracted to them. So that other work we were talking about was additional out of scope work.

MR BRADLEY: But if I suggest to you the number of inspections that had taken place by then was something less than 200 roof inspections, does that seem odd? THE WITNESS: Yes. It surprises me.

MR BRADLEY: Do you have any idea how many roofs had had installation installed in them by the middle of October? THE WITNESS: I’m sorry, I don’t know now.

MR BRADLEY: In paragraph 80 of your statement, you’ve identified a risk treatment that Mr Hughes and Mr Kimber were responsible for. THE WITNESS: Yes.

MR BRADLEY: Which was “liaise closely with Department of Employment on management of installer skills.” Do you have any recollection of what’s involved in that? THE WITNESS: No, I don’t, sorry.

MR BRADLEY: Do you recall in your oral evidence you said about the – when the first fatality occurred, when Matthew Fuller was killed, you said it was not clear that it was an HIP funded installation where he died. THE WITNESS: That’s my memory. Is that it wasn’t clear initially – well, from my information, what I understood, that people were still trying to establish if it was part of our program or not.

MR BRADLEY: Did you think at that time there were any retro fitting insulations going on in Australia that weren’t funded by the HIP? THE WITNESS: There could have easily have been. I mean, we didn’t necessarily know that they were all HIP funded.

MR BRADLEY: It’s not a reference, is it, to the fact that a claim hadn’t yet been put in for payment for that work? THE WITNESS: No, no, no, it was more – and it was the same – and similar with the fires, we weren’t the only people doing insulation installations around Australia. There were other people doing it that were not funded by HIP. So part of our process in these incidents was to first establish was it a HIP funded installation.


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MR BRADLEY: Those are my questions, Commissioner.

COMMISSIONER: Thank you. Adjourn till 2.15.

ADJOURNED [1.03 pm]

RESUMED [2.16 pm]

COMMISSIONER: Now, Mr Bradley had finished. You had finished, Mr Bradley, hadn’t you?

MR BRADLEY: Yes, I had, Commissioner.

COMMISSIONER: So Mr Barrow.

<EXAMINATION BY MR BARROW [2.17 pm]

MR BARROW: Thank you, Commissioner. Ms Kent, I just wanted to ask you some questions about the subject of supervision. I’m appearing for the family member of the young man who died in New South Wales where supervision was pretty much non-existent.

THE WITNESS: Okay.

MR BARROW: One of the – you’ve given evidence about what issues concerned the Commonwealth in relation to risk but do you accept that the guidelines for the program mandated supervision of untrained - - -

THE WITNESS: Yes.

MR BARROW: - - - installers. So that was a concern that the Commonwealth always had.

THE WITNESS: M’mm.

MR BARROW: Do you accept that when the program was rolled out and subsequently, that the Commonwealth had no capacity to identify in advance where a particular job would occur?

THE WITNESS: No.

MR BARROW: Do you accept that that was the case?

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THE WITNESS: Yes – no, we only knew after an installation, not before. Yes.

MR BARROW: That’s right.

THE WITNESS: Wait a minute, I think later on they did require a risk assessment before an installation - - -

MR BARROW: Yes.

THE WITNESS: - - - and two quotes so – but that was further down the program.

MR BARROW: I’m not sure about the answer to this but in relation to that, when that requirement was imposed, are you saying that that gave the Commonwealth, then, some advance notice of when work would actually occur?

THE WITNESS: I’m just – I’m sorry, I’m just trying to remember the process about whether just had to tick a box to say they had got the two quotes or whether they actually had to submit the two quotes to us. I’m thinking actually you’re right, that we didn’t see the quotes, that it was just – when the claim was submitted, the householder had to sign that they had had the two quotes.

MR BARROW: So as best as you can recall, there was never a time when there was a - - -

THE WITNESS: No.

MR BARROW: - - - possibility to look into the future?

THE WITNESS: No, you’re right. Yes.

MR BARROW: You said earlier that had the states wanted to do – I think you called the snap audits of particular installers, they could have approached the Commonwealth. Do you remember giving that evidence?

THE WITNESS: Yes.

MR BARROW: In terms of this capacity to proactively monitor adequate supervision, the states would have been just as hamstrung as the Commonwealth, wouldn’t they, in terms of not knowing when something was going to happen in advance?

THE WITNESS: I – I don’t know what processes state regulators use to monitor employers and how they meet their OH&S responsibilities. I’ve got – I don’t know how that works, I’m sorry.


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MR BARROW: But if a state regulator came to the Commonwealth and said, “Look, we want to ensure that the supervision is occurring. Can you tell us who will be installing insulation - - -

THE WITNESS: In advance?

MR BARROW: - - - insulation in a particular place next week” - - -

THE WITNESS: We couldn’t have told them that.

MR BARROW: No.

THE WITNESS: No.

MR BARROW: Now, you said in your statement and in your evidence that by, I think, July – shortly after the rollout began that this concern emerged that supervision simply wasn’t occurring in the way that it was expected it would. And that was because invoices were coming in and they were - - -

THE WITNESS: And didn’t seem credible. Yes. Yes.

MR BARROW: - - - coming from a registered installer. He couldn’t be doing them all at once - - -

THE WITNESS: Yes.

MR BARROW: - - - if he was complying with the requirements.

THE WITNESS: If they – yes. That’s what was appearing.

MR BARROW: In terms of doing anything proactive about that problem at that stage, I just wanted to ask you a little bit about that. At that early stage before PricewaterhouseCoopers became involved, the Department had – as best as I can see – almost no way of doing anything proactive except – I was going to ask you this – except perhaps identifying suspected miscreants and giving them a show cause letter or saying “We believe you’re not complying with the guidelines”.

THE WITNESS: So, I think sometime before PwC started, our ATO directors were in place running the compliance regime and Ms Taylor had a team of people whose job it was to ring around and follow up some of these anomalies and – and I think Protiviti went and did a couple of site audits, from memory, for installers that we thought this might be questionable around. And they were – and they were spoken to about the requirements and what their responsibilities were around the guidelines.

MR BARROW: But to actually detect somebody not - - -

THE WITNESS: Not - - -


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MR BARROW: - - - properly supervising untrained staff - - -


MR BARROW: - - - those things weren’t going to be effective, were they?

THE WITNESS: From the Commonwealth level?

MR BARROW: Yes.

THE WITNESS: No. Because – because state and territory jurisdictional authorities had the responsibility and the capacity to do that, not us.

MR BARROW: But even in terms of what was – what was available to the Commonwealth, which you’ve just explained, none of that provided a capacity to - - -

THE WITNESS: We couldn’t be in the roof.

MR BARROW: - - - go to a worksite and say, “Demonstrate to us today that you are – you have a supervisor here”. You never had the ability to do that.

THE WITNESS: Well, once they started doing the on-site audits, I think they did.

MR BARROW: Well, I wanted to ask you about that in a moment - - -

THE WITNESS: Yes.

MR BARROW: - - - but in terms of that early stage before there was any - - -

THE WITNESS: There was probably a period of four to six weeks where we would have had probably no capacity to do that.

MR BARROW: Would one option have been, at that stage when it was a problem that seemed to be emerging - - -

THE WITNESS: Yes.

MR BARROW: - - - it was possible on the information to identify installers that were seemingly not providing adequate supervision and write to them and say, “We believe you’re not complying with the guidelines. You demonstrate that you are or you’re going to be deregistered.” That would be possible, surely.

THE WITNESS: That would have been possible. I – but I think, from memory, when the – we kept a record of who we were concerned about. I don’t know that they were contacted directly in July or not. When Ms Taylor started and her team


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was up and running, we gave them the names of the people that we had been concerned about to follow up with. Yes.

MR BARROW: And that was when – when was that? What - - -

THE WITNESS: I think it was in August.

MR BARROW: In August. And was that in conjunction with the arrival of Pricewaterhouse - - -

THE WITNESS: That was before PricewaterhouseCoopers.

MR BARROW: Do you know whether any active steps were taken to try and target companies that were not – seemingly not supervising their staff?

THE WITNESS: As I understood it, Mr Mulligan went out and visited a few of them and actually went out with the supervisor a couple of times. So I think – I think there was contact made and efforts made.

MR BARROW: But given the retrospective nature of that type of contact where you would need to be looking back at what was occurring, do you accept that that still didn’t provide a way of detecting - - -

THE WITNESS: Well, we couldn’t predict what - - -

MR BARROW: - - - these failures?

THE WITNESS: - - - who was going to be in what roof where and be there with them.

MR BARROW: That’s right.

THE WITNESS: No. No.

MR BARROW: That’s right. The young man who died whose sister I’m appearing for, he was employed by a building company called Pride - - -

THE WITNESS: Right.

MR BARROW: - - - Pride Engineering. There was an email that was shown to you this morning – unfortunately I didn’t get the reference down - - -

THE WITNESS: Right.

MR BARROW: - - - correctly. But it would seem that that company was deregistered - - -


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THE WITNESS: Right.

MR BARROW: - - - after his death. He died on 10 November. Do you have any recollection of the process that was followed?

THE WITNESS: No, I’m sorry. Once Ms Taylor and Mr Mulligan were in place, they assumed responsibility for compliance regime and how the deregistration process and so on was working so - - -

MR BARROW: You had nothing - - -

THE WITNESS: - - - I can’t help you, I’m sorry.

MR BARROW: Right. And in relation to the involvement of PricewaterhouseCoopers, I think you were asked before lunch about the number of inspections that were occurring and you said, I think, you didn’t recall.

THE WITNESS: Yes.

MR BARROW: Mr Levey, who was Mr Garrett’s advisor - - -

THE WITNESS: Right.

MR BARROW: - - - provided some information in his statement. It’s at paragraph 320. And I just thought I would indicate this to you without - - -

THE WITNESS: Sure.

MR BARROW: - - - bringing it up so that - - -

THE WITNESS: Okay.

MR BARROW: - - - save some time. In his note, he recorded that on – didn’t really what day but he had a conversation, a phone hook-up, with Sue Taylor, Patrick Kevin of PricewaterhouseCoopers, Cathy and David Hoitink, and discussed the number of audits that were being undertaken. And his note read:

Expect 6,000 a week by 3 November. By 19 October, PwC up to 1000 roof inspections per week.

Does that accord with – or does that remind you of - - -

THE WITNESS: Yes, because PwC were building up their – the number of people they had on staff and their processes. And also the – I think – I mean, you don’t just go out and turn up at someone’s house and do a roof inspection, so there had to be identifying randomly or – either random inspections or targeted so the – from memory, they were doing two different sets and then – so you would have to contact


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the householder and someone not home or someone didn’t want to be involved. So there was a lead up to actually getting the inspector inside the roof.

MR BARROW: And that process was more aimed at fraud and poor quality installations - - -

THE WITNESS: It was aimed at the whole thing. It wasn’t just fraud. It was aimed at inspecting the quality of the install, whether it was safe, all of those things.

MR BARROW: But once again, that process didn’t really accommodate detection of poor quality or absence of supervision.

THE WITNESS: Look, I wasn’t – I’m sorry, I can’t help you, really.

MR BARROW: Right. I understood from reading some of the material that there was a – at least an intention to name and shame people who didn’t comply - - -

THE WITNESS: I remember that being discussed at PCG.

MR BARROW: Do you know whether that actually ever occurred?

THE WITNESS: No, I don’t, I’m sorry. I remember the discussion.

MR BARROW: Yes.

THE WITNESS: Yes. But, I’m sorry, I don’t know.

MR BARROW: Thank you. Thank you, Commissioner.

COMMISSIONER: Mr Potts?

<EXAMINATION BY MR POTTS [2.27 pm]

MR POTTS: Yes. Thank you, Mr Commissioner. I just want to deal with some things broadly. I note that your background originally was in social work.

THE WITNESS: Mmm.

MR POTTS: And you say – and your CV is helpfully set out on page 1 and 2 of your statement. It seems that you the director of the immunisation programs between 2006 and 2008. Was that a project management position?

THE WITNESS: I was – I was a director of the immunisation program which is the national program everyone is aware of.

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MR POTTS: So is it a project management type position?

THE WITNESS: There will have been – there were a number of small projects in it but I was managing a billion and a half dollar budget and – and vaccines going out through states and territories.

MR POTTS: But at some point, it seems, that you commenced a Diploma of Project Management.

THE WITNESS: Yes. When I was at Water, yes.

MR POTTS: And you achieved that in 2009.

THE WITNESS: Mmm.

MR POTTS: And that’s your only formal qualification in the area?

THE WITNESS: Well, when I did a Graduate Certificate in Administration, we did project management as part of that too.

MR POTTS: Yes. But your formal qualification specialising in project management was achieved in 2009.

THE WITNESS: Was in 2009.

MR POTTS: When in 2009?

THE WITNESS: It was before I started with the - - -

MR POTTS: So perhaps just prior to April 2009?


MR POTTS: Which was when in fact you were appointed the project manager of this particular area.

THE WITNESS: No, I wasn’t the project manager. I was director of – program management, I think, was the title.

MR POTTS: All right. Just, if I could, take you to your statement to paragraph 47. It’s under the heading Health Check.

THE WITNESS: Mmm.

MR POTTS: And the surrounding paragraphs are perhaps apposite. My understanding is that together with Ms Coaldrake, you requested that she prepare a program health check report.


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THE WITNESS: Yes.

MR POTTS: What was the purpose of that?

THE WITNESS: Because we wanted to do, I suppose, an independent or a reasonably objective audit of where we were up to, what was happening with all of the processes, not just risk management but scheduling and so on, and it was really just to see if there were any gaps or any issues that we needed to look at.

MR POTTS: And you say at paragraph 48, referring to page 8 of the draft report, there’s a heading Lessons Learned.

THE WITNESS: Mmm.

MR POTTS: So do I detect that what you were trying to do is not merely project forward to find out where the gaps were, but also to look back at the process to see whether there were lessons that you thought ought to be learnt?

THE WITNESS: Adjustments that we could make as went along, yes.

MR POTTS: Well, not just that, but to see what were fundamental problems within that program.

THE WITNESS: I suppose so, yes. Yes.

MR POTTS: And you identified that one of the lessons was – and you will see the indent in paragraph 48.

THE WITNESS: Mmm.

MR POTTS: It says:

Policy-driven decision division.

What do you understand that to mean? [2.30 pm]

THE WITNESS: Well, I think – I think the – the REED division, which is the division that we were working with in Environment, had primarily been a policy area and so it didn’t necessarily have the background to be running a hands-on direct delivery program.

MR POTTS: Could you explain or perhaps expand upon that? I’m just not quite sure what it meant. Did it – it seems to suggest that there was a policy and then, effectively, it – the process had to then be developed around a policy that had already been decided before you came in.



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MR POTTS: And this was an area which the Federal Government had not be involved in before?

THE WITNESS: Well, certainly the – that department hadn’t been. Yes.

MR POTTS: And that is the delivery, effectively, of a product into people’s houses.

THE WITNESS: I wasn’t aware of any other program like that.

MR POTTS: And that, no doubt, gives rise to perhaps, for example, some of the gaps in your knowledge and the knowledge of those surrounding you in the department.

THE WITNESS: Yes.

MR POTTS: In particular, for example, the effectiveness of work health safety programs in states, whether it was reactive or proactive.

THE WITNESS: Yes, all those assumptions. Yes.

MR POTTS: And there was a whole pile of assumptions.

THE WITNESS: And the fact, as I mentioned earlier, that we were unable to run a pilot impacted that sphere.

MR POTTS: And it seems from other evidence that we’ve heard that there was a change in the delivery model.

THE WITNESS: From what I hear, yes.

MR POTTS: And I think that perhaps happened before you became involved.

THE WITNESS: Yes.

MR POTTS: But then there appears, through the cross-examination, that you understand that there were also then problems with the degree and quality of the training, if any?

THE WITNESS: There was a – there was a debate about whether the apprentices needed training or not and decision that only the supervisors would have it. Yes.

MR POTTS: Yes. And then it turns out the assumptions that you perhaps had with respect to the presence of supervisors onsite ..... also proved to be incorrect.

THE WITNESS: Yes.


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MR POTTS: All right. So I appreciate that you express some degree of regret and emotional concern and no doubt you’ve had the opportunity over the last five years to work out lessons learnt in retrospect.

THE WITNESS: Yes.

MR POTTS: Can you share with us your conclusions as to the lessons which you learnt or that this Commission can learn from what happened.

THE WITNESS: I probably should pick the most important one because there’s so many. But for me – from my point of view, as you – as you mentioned, no one had really done this before. We couldn’t find anywhere that people had been going into people’s roofs and – and all of the rest of it. And so in terms of doing any kind of program planning, not just the risk assessment but designing the program, we didn’t have anything that we could reality test against because we’re a group of people in a building, trying to talk to stakeholders and they had competing interests and so trying to find that – that reality test is the best word I can come up with.

MR POTTS: so the difference between – the initial thing is to find out the difference between what was real and the various assumptions made.

THE WITNESS: Yes. And so – so my lesson learnt from this is – is if you’re going to launch into a new program area, you need to test it before you – you go and it needs to be carefully staged and reviewed along the way because there were some assumptions that we made that at the time seemed quite a reasonable assumption, but if we had had the opportunity to test it out, perhaps we would have – for example, the supervision thing, if we had had the chance to test it, we might have realised that that part of the guidelines needed a lot more pinning down.

MR POTTS: Okay. So reality testing and supervision. You said that there were so many. Can you assist us with other matters of concern.

THE WITNESS: Well, there was the whole thing about we were a very small group of people and Mr Keefe had other responsibilities and I think - - -

MR POTTS: Now just pause. Do you mean small group of people within DEWHA?

THE WITNESS: Within the branch that was doing this.

MR POTTS: So would that be under - - -

THE WITNESS: ..... but, you know - - -

MR POTTS: So would that be under the heading of “under resourcing”?


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THE WITNESS: Yes. And the fact that it – once the taskforce happened, it was a – it was a focused taskforce. There was more agility about moving around. There were experts brought in on specific items, so I think that was important too.

MR POTTS: So a lack of expertise and a lack of numbers?

THE WITNESS: Yes.

MR POTTS: All right. Are there any other headings that you can point to that could have been done better?

THE WITNESS: Certainly, the commonwealth/state relationships issue.

MR POTTS: Could you explain that.

THE WITNESS: Well, in my experience and when I was running the immunisation program – of course, that was jointly delivered with states and territories – and in my experience, it takes time for each level of government to understand how the other actually operates. I mean, there’s a theory but it takes time to build the relationships and to understand and build protocols and ways of working, and that doesn’t happen overnight. So – so if it’s going to be a program that relies on state and territory, to whatever extent, then – then you need to allow time to have those conversations and to build that understanding.

MR POTTS: So could that be properly headed a more formal understanding between the states and perhaps – between the State and Federal Government, and perhaps - - -

THE WITNESS: Not rushing it.

MR POTTS: Yes. Well, just talk about that because that seemed to be the problem. You seem to have a policy and by the time you arrived, a delivery date.

THE WITNESS: Yes.

MR POTTS: And the whole program and the pressure seemed to be predicated upon a policy but without a government structure.

THE WITNESS: We had a government structure to deliver the project but not for the compliance, no.

MR POTTS: Well, that’s really what paragraph 48 is about, isn’t it?

THE WITNESS: Yes. Yes. Yes, that’s right.

MR POTTS: That is, you - - -


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THE WITNESS: So that the rush was – the rush made it very difficult, yes. And it was because of the rush that we didn’t do a .....

MR POTTS: Can you talk about – did you think about, in retrospect, the question of training? Because there has been some debate. You said that you thought it was a state issue but you seem to concede - - -

THE WITNESS: No, I didn’t say ..... training – I didn’t think training was a state issue.

MR POTTS: I’m sorry. The – I should actually put that a bit more fairly. You were talking about reputational issues - - -

THE WITNESS: Yes.

MR POTTS: - - - and you thought that if people died – and please correct me if I’m wrong – that that would be something which would reflect upon the state rather than the Commonwealth.

THE WITNESS: I think that’s the way the group felt about it, yes.

MR POTTS: And you, in retrospect, see that that was completely wrong.

THE WITNESS: Yes, but – but more than that, it’s – it’s more than the Commonwealth reputation, isn’t it? It’s about making sure that people are safe..

MR POTTS: Exactly. So could you now talk about safety, what should have been done then or - - -

THE WITNESS: I think all of the things I’ve just said. Yes.

MR POTTS: So there should have been a greater emphasis on safety?

THE WITNESS: I think we – in retrospect, I think we should have taken the time to develop clearly with the states and territories who was doing what and how it was all going to work. And we should have tested it. We should have reality tested it.

MR POTTS: So that would have included formal approaches to the state - - -

THE WITNESS: Yes.

MR POTTS: - - - questions of funding settled out - - -

THE WITNESS: Yes.

MR POTTS: - - - those questions for who was going to be responsible for, for example, training, safety and those sorts of things.


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THE WITNESS: Yes, and how it would all work together. Yes.

MR POTTS: You talked about the speed of the matter and we’ve heard evidence of, firstly, what seems to be chaos followed by the chaotic end to it and the damage that that did to people. Can you comment upon how those speed issues affected those people within the Department?

THE WITNESS: It was pretty – I won’t get emotional again, I promise.

MR POTTS: Yes.

THE WITNESS: But, you know, there were people that – that – that decided they would never seek promotion as a result of that because it was so difficult and so unpleasant. And I understand quite a few people went and took the opportunity up for counselling and support.

MR POTTS: So there were, quite frankly, ridiculous hours being worked.

THE WITNESS: Yes, it was 24/7 at one point, almost.

MR POTTS: And unrealistic expectations of what could be achieved.

THE WITNESS: Yes.

MR POTTS: And I suspect a sense that – as you’ve looked at with this health check – that things had been missed?

THE WITNESS: Yes. That’s why I was doing it, because I just could never feel comfortable at this rate of speed that we – that we could be sure we were on top of everything.

MR POTTS: And when the whole thing started to fall apart, when fires started to occur and deaths starting to occur, then I suspect the stress levels were even higher with the Department.


MR POTTS: Is the lesson, then, to be learnt from this is that if the Commonwealth Government intends to do something which it has never done or a department has never done before then it should hasten slowly?

THE WITNESS: Absolutely.

MR POTTS: That it should put in place proper government structures and that, notwithstanding what appears to have been an economic or fiscal imperative, it should have put safety and lives to the forefront.


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THE WITNESS: I agree with that.

MR POTTS: Thank you.

COMMISSIONER: Thank you. Mr O’Donovan.

<EXAMINATION BY MR O'DONOVAN [2.39 pm]

MR O'DONOVAN: Now, I appear for the Commonwealth. Now, I want to start in the middle of the - - -

THE WITNESS: Okay.

MR O'DONOVAN: - - - narrative because it was suggested, I think at least implicitly, in relation to Matthew Fuller’s death the Commonwealth reacted more promptly in relation to issues of fraud rather than in relation to a death of an individual. And I just wanted to give you an opportunity – if you can cast your mind back to the day you were advised that an installer had died. If you can just talk us through all of the things that happened and the steps that the Commonwealth took in response to that.

THE WITNESS: I don’t know that I can do that because, as I said, I was – Mr Keefe was recalled to his job - - -

MR O'DONOVAN: Right.

THE WITNESS: - - - immediately and I was set back to being in my other position. So I’m sorry, I don’t think I can tell you.

MR O'DONOVAN: All right. Well, let’s – let’s start. So at the point as at 14 October 2009, you were acting in Mr Keefe’s position?

THE WITNESS: If you say so, yes.

MR O'DONOVAN: Well, no. I’m going off your evidence so - - -

THE WITNESS: Okay.

MR O'DONOVAN: - - - you said Mr Keefe was recalled. I understood from your evidence - - -

THE WITNESS: Yes. So - - -

MR O'DONOVAN: - - - this morning that you were acting.

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THE WITNESS: - - - he was recalled very soon after we learned of the death. So he was – he would have been back in his job within a few days, I think.

MR O'DONOVAN: Yes. But in relation to your position, were you acting in his position or have I misunderstood your evidence?

THE WITNESS: Yes, I was until – yes, until he was recalled. That’s right.

MR O'DONOVAN: Okay. Right. So – and it was in response to the death of Matthew Fuller that - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - Mr Keefe - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - was recalled. Okay. And that in itself suggests that the matter was a very serious matter - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - requiring someone to be called - - -

THE WITNESS: Yes.

MR O'DONOVAN: The most experienced person in a pivotal position to be called back.

THE WITNESS: To be called back, yes.

MR O'DONOVAN: Okay. Do you have any idea who was responsible for calling him back?

THE WITNESS: I think it was Mr Forbes.

MR O'DONOVAN: Okay. So Mr Forbes decided that the issue was sufficiently critical that he should be called back. All right. So in addition to that, did you – were you aware of the actions that were being taken in response? So, I will give you some examples and - - -

THE WITNESS: Okay.

MR O'DONOVAN: - - - just let me know whether you were aware of these things. So there was a meeting arranged between the Minister and the Master Electricians Association on 20 October.


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THE WITNESS: Okay.

MR O'DONOVAN: Were you aware of that or - - -

THE WITNESS: I can’t say I remember that. No.

MR O'DONOVAN: - - - did you have any responsibilities in relation to it?

THE WITNESS: I wouldn’t have been involved with that.

MR O'DONOVAN: Okay. All right. Then on 27 October there was a meeting with industry when – a public meeting involving the Minister and representatives from various stakeholders who could provide information about the industry. Were you aware of that?

THE WITNESS: I don’t remember that, I’m sorry.

MR O'DONOVAN: Right. And you don’t remember being in attendance in relation to that?

THE WITNESS: I don’t remember going, no.

MR O'DONOVAN: No. All right. Do you remember talking to anyone about what had occurred in relation to that?

THE WITNESS: In relation to the meeting or the deaths?

MR O'DONOVAN: Yes. In relation to the meeting.

THE WITNESS: The meeting.

MR O'DONOVAN: What the results of the meeting were.

THE WITNESS: I’m sorry, I don’t.

MR O'DONOVAN: No. Okay. All right. And are you aware that there were new guidelines issued, the first of which banned metal staples?

THE WITNESS: Yes, there were changes – there was a series of changes Ms Coaldrake referred to yesterday.

MR O'DONOVAN: Right. But prior to Ms Coaldrake referring to them were you aware of those?

THE WITNESS: Yes, we lived through them at the time.


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MR O'DONOVAN: Okay. So you were aware that – the steps the Commonwealth took - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - the response to this was firstly to ban metal fasteners from the program.

THE WITNESS: Yes. There was – there was three or four policy changes in quick succession.

MR O'DONOVAN: Okay. Also a pre-installation risk inspection was required. Do you recall that?

THE WITNESS: Yes, I remember that.

MR O'DONOVAN: Okay. And there were announced changes to the training regime which weren’t to come into effect immediately but were to come into effect in February. Do you recall that?

THE WITNESS: No, I don’t think so. Sorry.

MR O'DONOVAN: Okay. All right. So just so I can – but at this point in time it was you and Ms Coaldrake who were responsible for maintaining the risk register?

THE WITNESS: Yes.

MR O'DONOVAN: Okay. So would you agree with me that – well, actually, one further question. Were you aware that the Queensland Electrical Safety Office also took steps to ban the use of metal staples prior – as of 1 November in the installation report.

THE WITNESS: I can’t remember whether I – I can’t remember hearing that.

MR O'DONOVAN: Okay. All right. It’s not a memory test, I’m just trying to understand - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - what it was that you knew and what it was that you found out. Now, at least you were aware that significant policy changes had been made in response to Matthew - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - Fuller’s death. Is that fair?


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THE WITNESS: Yes.

MR O'DONOVAN: But you understood that. Okay. And would it be fair to say that those significant changes portrayed an acceptance on the part of the Commonwealth that it was responsible for the safety of installers?

THE WITNESS: Yes.

MR O'DONOVAN: Yes. And I suggest to you that it’s impossible to see that reaction any other way than that people in the Department - - -

THE WITNESS: Were anxious to prevent a recurrence.

MR O'DONOVAN: Not only anxious to prevent a recurrence but accepted that the Commonwealth had responsibility for the safety of workers installing under the program. Do you agree with that?

THE WITNESS: Yes.

MR O'DONOVAN: Okay. So to the extent that the risk register – and I’m not – and I’m not going to take you to the risk register and suggest whether it does or it doesn’t, but to the extent that the risk register doesn’t reflect an acceptance of responsibility by the Commonwealth, that doesn’t reflect the actual - - -

THE WITNESS: No.

MR O'DONOVAN: - - - state of mind of the people involved.

THE WITNESS: No, because – risk register is only one process in program management and just because it doesn’t appear in the risk register doesn’t mean that people weren’t actively working on it and/or, you know, taking responsibility for it.

MR O'DONOVAN: Yes.

THE WITNESS: Yes.

MR O'DONOVAN: And I suggest to you that it’s quite clear that people were actively - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - working on it and were actively taking responsibility for it, and were not dismissive of that responsibility.

THE WITNESS: And I think all the way along, you know, the guidelines for the training requirements and so on, just because the Commonwealth didn’t own the risk in terms of what appeared on a risk register doesn’t mean that the officers involved


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weren’t concerned to do the best they could within – within our mandate and our ability. So I don’t think it was – there was ever a position where we just said “we don’t care”. I think it was more about – in the risk register how it appeared was that it was owned – the OH&S regulation was owned by the states and territories.

MR O'DONOVAN: Okay. Well, then, just to push a little bit on that, in – so in early November you’re responsible for the risk register.

THE WITNESS: Yes.

MR O'DONOVAN: Clearly, installer safety is a risk.

THE WITNESS: Yes.

MR O'DONOVAN: Clearly, the Commonwealth has – that risk has materialised so you can assess the likelihood of it. Clearly, the Commonwealth has treated – engaged in treatments for that risk. Doesn’t that suggest at that point that those responsible for this register should have identified the risk as something that requires an owner?

THE WITNESS: What my process was was to work with management, which was Mr Keith and Mr Forbes and the senior risk owners and business line managers. Whether there was a need for that to appear on the risk register or have a risk owner or however that appeared, I mean I could support them, but that was a management decision. It wasn’t my responsibility or my purview.

MR O'DONOVAN: Okay. So all right, at this point it might be worth going back to the beginning of the process. So my understanding is that you arrived on 11 April?

THE WITNESS: Somewhere around there.

MR O'DONOVAN: Somewhere around there; all right. Now, at that stage the first sweep-through, I suppose, of the risk register had already been done?

THE WITNESS: Yes. It was already up and running.

MR O'DONOVAN: Okay. And I understood from your evidence that in a sense the issue was – the question of whether or not it should be allocated to the states – the risk should be allocated to the states or was a Commonwealth responsibility, you got the impression it had been dealt with?

THE WITNESS: Mmm.

MR O'DONOVAN: Okay. And you got a particular impression about how it had been dealt with?

THE WITNESS: Yes.


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MR O'DONOVAN: Okay. But that wasn’t the product of directly observing how people were dealing with the issue?

THE WITNESS: It was just the product of those conversations I remembered occurring in the 9 o’clock in the morning meetings then.

MR O'DONOVAN: Okay. All right. So you formed the impression - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - that it was something that would be allocated to the states?

THE WITNESS: Yes.

MR O'DONOVAN: But it wasn’t the subject of active discussion while you were there?

THE WITNESS: We discussed it in the 9 o’clock meeting a couple of times informally.

MR O'DONOVAN: Yes.

THE WITNESS: But I don’t recall it being a formal point of discussion at PCG.

MR O'DONOVAN: Okay. All right. Now, are you familiar with the guidelines that were being drafted at the time?

THE WITNESS: I would have been at the time, but I don’t know much I remember of all – yes.

MR O'DONOVAN: Well, no, I’m not going to try and give you a memory test. But so you’re familiar with – that there are terms and conditions of registration?

THE WITNESS: Yes.

MR O'DONOVAN: Okay. And so that when a person was registered, that they agreed to certain things and if those things weren’t done the Commonwealth could deregister them?

THE WITNESS: Yes.

MR O'DONOVAN: Okay. Now, do you recall that one of those – one of the things that the Commonwealth required was that every person installing insulation had to have an OH&S swipe card?



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MR O'DONOVAN: Okay. That’s your recollection; all right. Now, again that suggests, does it not, that someone in the organisation felt that they - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - had a responsibility for installer safety, and it was not a matter that was pushed out - - -

THE WITNESS: I agree.

MR O'DONOVAN: - - - and disregarded?

THE WITNESS: No.

MR O'DONOVAN: All right. And are you also aware that it was a term and condition of registration that you comply with state - - -

THE WITNESS: Yes

MR O'DONOVAN: - - - occupational health and safety laws? So again this is not a matter that has been disregarded as a states issue.

THE WITNESS: No.

MR O'DONOVAN: The Commonwealth has set up guidelines which - - -

THE WITNESS: Yes.

MR O'DONOVAN: Yes.

THE WITNESS: Because as I said, just because something doesn’t appear in the risk register doesn’t mean that the program management team is not, I mean, working on it or taking an interest in something; it’s just what appears in terms of allocating risk in a register.

MR O'DONOVAN: Yes. But I was concerned that the evidence you gave this morning might have given the impression - - -

THE WITNESS: I see.

MR O'DONOVAN: - - - that there was a dismissive attitude; it’s not our problem, it’s someone else’s problem?

THE WITNESS: No. Sorry if I gave that impression. It’s not what I intended.


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MR O'DONOVAN: Okay. So – and you’re aware of the existence of the pocketbook being prepared, but you weren’t aware of its content; did I understand that correctly?

THE WITNESS: I don’t think I ever did have a close – I can’t remember having a close look at it.

MR O'DONOVAN: Okay. But again, that could be seen as a way in which the department was actively engaging with the safety - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - of installers; and again, this is not something that appeared in the risk register?

THE WITNESS: Not necessarily.

MR O'DONOVAN: No. All right. And were you also – ma’am, you were shown an email earlier today as well from a Mr Tony Delbridge?

THE WITNESS: Yes.

MR O'DONOVAN: Yes. And you had no recollection of a Mr Delbridge?

THE WITNESS: Sorry. I don’t remember him, no.

MR O'DONOVAN: Okay. And in relation to – now, you had an opportunity to read that email?

THE WITNESS: Yes.

MR O'DONOVAN: And understood that that was relating to health and safety?

THE WITNESS: I read that. Yes.

MR O'DONOVAN: Yes. All right. So again an officer that you’re not aware of is taking responsibility for engaging with the states, so the fact again – the fact that it’s not on the register does not - - -

THE WITNESS: Exactly.

MR O'DONOVAN: You could not conclude from that that there was some dismissive attitude to safety?

THE WITNESS: No.


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MR O'DONOVAN: Okay. All right. Now, in relation – now, you gave some evidence about a discussion concerning Mr Hoffman and Mr Keith, I think, at a PCG meeting?

THE WITNESS: Mmm.

MR O'DONOVAN: Okay. I just want to ask you some questions around that, and then I will - - -

THE WITNESS: Sure.

MR O'DONOVAN: - - - address the issue a bit more directly. Now, the – I suppose almost every aspect of this program has been examined extensively - - -

THE WITNESS: Mmm.

MR O'DONOVAN: - - - over the last five years; have you been involved much in the various inquiries and reports that have gone off to the Senate and have gone to the coroner or any of those, the audit office, any of those inquiries?

THE WITNESS: Yes. The audit office, with the ANAO I’ve had a couple of days with the auditors being interviewed.

MR O'DONOVAN: Right.

THE WITNESS: And produced documents, and with the Senate inquiry I was involved in pulling together required documents to be ready to submit. I didn’t actually play a role in the Senate inquiry actively in the sense of being – appearing or anything like that. I was in the background just assembling documents.

MR O'DONOVAN: Yes. Okay. And is it fair to say that at least a notion that a Senate inquiry was necessary for officers within the Department of Environment to discuss issues and decision points and what went on? So was there some discussion about the process?

THE WITNESS: At that point we were so overwhelmed, frankly, that I don’t know that people would have been sitting around reflecting on process and things. It was more about reacting to what the Senate wanted and making sure that the documents got pulled together, yes.

MR O'DONOVAN: Sure. But was it necessary, or did you find at that point that you were discussing with people what their recollections of things were at the time - - -

THE WITNESS: I don’t - - -

MR O'DONOVAN: - - - to check your own recollection?


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THE WITNESS: Not necessarily, I don’t think.

MR O'DONOVAN: Do you think it’s possible that it might have occurred in this part of the process?

THE WITNESS: It probably could have and it’s possible, but I just – you know, in amongst it all not remembered, yes.

MR O'DONOVAN: Yes. Okay. So in effect that it’s a long time ago - - -

THE WITNESS: Yes.

MR O'DONOVAN: - - - and it’s difficult to remember things?

THE WITNESS: And there was a lot going on.

MR O'DONOVAN: Precisely; and there was a lot going on. All right. The reason that I ask that is because you gave a recollection of the discussion that resulted in the requirement of supervisors only being - - -

THE WITNESS: Yes.

MR O'DONOVAN: Yes; now, that decision was made on 8 May?

THE WITNESS: Mmm.

MR O'DONOVAN: And if I could just bring the document up, it’s AGS002.025.0179. Okay, if you can just zoom in on the attendances. Now, I’ve looked at it quickly over lunch and I couldn’t find your name as an attendee there.

THE WITNESS: No.

MR O'DONOVAN: And I couldn’t find your name as an attendee at any meeting prior to 8 May. And I could find your name as an attendee for 15 May onwards.

THE WITNESS: After that, yes.

MR O'DONOVAN: So is it possible that in describing that conversation that you’ve misremembered - - -

THE WITNESS: I see.

MR O'DONOVAN: Yes.

THE WITNESS: Yes. All I can think is that I must have been sitting in as an observer or something, it would have been early days. I do remember observing interaction.


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MR O'DONOVAN: Right. Is it possible it was on another issue?

THE WITNESS: It certainly is possible, yes.

MR O'DONOVAN: Now, you also gave evidence – and this is in your oral evidence, it’s not reflected in your statement – but you – no. I will come at this a different way. Now, your interactions with the OCG, Office of the Controller-General were restricted to attending the PCG meetings; is that right?

THE WITNESS: Yes. I didn’t – I wasn’t privy, as I said earlier, to any of the meetings that happened outside of that with – I did occasionally go to the Friday morning meeting when Mr Keith couldn’t go.

MR O'DONOVAN: Sorry, in the Friday morning meeting, the - - -

THE WITNESS: The OCG had a Friday morning meeting of all the stimulus projects .....

MR O'DONOVAN: Yes. Okay. All right. And the – and so in terms of your understanding of how the PCG worked, that was a body which consisted mostly of members – most of its members came from the Department of the Environment?

THE WITNESS: Yes.

MR O'DONOVAN: And the chair was the deputy secretary from the Department of Environment?

THE WITNESS: Yes.

MR O'DONOVAN: And it was in relation to a program for which the Department of Environment had responsibility for delivery?

THE WITNESS: Yes.

MR O'DONOVAN: Okay. And there were attendees from outside which included Mr Hoffman from the Office of Controller-General, and there were attendees from Medicare?

THE WITNESS: Yes.

MR O'DONOVAN: And there were attendees from the Department of Employment.

THE WITNESS: Mmm.

MR O'DONOVAN: Okay. And my understanding of your evidence was that it worked on a consensus basis but it wasn’t necessary to put anything to a vote.


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THE WITNESS: No.

MR O'DONOVAN: And that Mr Forbes the Deputy Secretary was able to reach a consensus on issues?

THE WITNESS: Mm.

MR O'DONOVAN: Okay. Now, you said at one point in your oral evidence that PM and C directed you to – the Environment to do things in a particular way. What I would suggest to you is that, at least from what you observed, there was no capacity for the PM and C to direct the PCG to act in any particular way.

THE WITNESS: I think I used that word because that was, as a person in the group, that was the impression that I got and I think others in the group got, is that we were being – we were being given a direction.

MR O'DONOVAN: Now, can I just tease that out. In circumstances where the meeting is being chaired by a very senior officer in your department.

THE WITNESS: Yes.

MR O'DONOVAN: Where it is being operated on a consensus basis.

THE WITNESS: Yes.

MR O'DONOVAN: Where PM and C are in a very distinct minority in relation to that, what’s the – that doesn’t seem to provide a proper foundation for any kind of direction.

THE WITNESS: But although PM and C in terms of numbers might have been in a minority, in terms of their authority and their relationship to the department, they’re not just another participant in the group. Really when PM and C is in a situation like that, they’re representing the Prime Minister, effectively. So it’s not like just another officer or someone else. So I think – and I think I’ve said he advocated rather than dictated to us.

MR O'DONOVAN: Yes. And that’s – I’m not suggesting that he didn’t.

THE WITNESS: Yes.

MR O'DONOVAN: I’m just trying to - - -

THE WITNESS: But I think in the context that he was there as a representative of the Prime Minister. The impression we got was that that what he was saying to us was in the nature of, this is what the Prime Minister expects you to do.


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MR O'DONOVAN: Okay. Now, when you say “we”, “that’s the impression we got”, have you discussed that with Mr Forbes, for example? Is that the impression that – would he agree with your assessment of the impression?

THE WITNESS: I don’t know if he would or not. I can only say in terms of myself and other – my peers in the group - - -

MR O'DONOVAN: So at what level?

THE WITNESS: EL2 level.

MR O'DONOVAN: Yes.

THE WITNESS: Sometimes we came – we came away from those meetings and we would have a chat about PM and C having a clear and strong view about what we wanted to do, what we were going to do.

MR O'DONOVAN: Okay. But just – but you would agree that having a – PM and C having a clear and strong view is not the same as PM and C - - -

THE WITNESS: No, but I have said there were times when I had the impression, and some of my peers had the impression, that we were being told what the Prime Minister expected us to do.

MR O'DONOVAN: Okay. And can you fill that out, why you say – other than the fact that they were from PM and C, what made you think - - -


MR O'DONOVAN: Is it just that?

THE WITNESS: And I suppose the argument that was being used was, this is a stimulus package, this is the Government’s priority, you know, we need to be careful not to put barriers in the path, and this is the policy priority. So when somebody from PM and C tells me that that’s the policy priority, I think myself and others had the impression that that was what the Prime Minister expected us to do.

MR O'DONOVAN: And which reflected what was announced in the press release on 3 February.

THE WITNESS: Yes, yes.[3.00 pm]

MR O'DONOVAN: Now, you indicated that you had a – I’m not sure whether you – to say you had a concern was the right term, but you felt that you couldn’t – your understanding was that from Medicare’s point of view, from the technical point, that you couldn’t stop a payment - - -


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THE WITNESS: At the beginning.

MR O'DONOVAN: At the beginning, yes. But you understood that at all times you could de-register a person?

THE WITNESS: I don’t know if we did think about de-registering until further down the track.

MR O'DONOVAN: Okay. But did you understand that the effect of de-registering someone was that they were not longer entitled to a payment?

THE WITNESS: I’m sorry, are we talking about the mechanics of the process of Medicare or are we talking about the department’s capability? Because we never – because when they finally did get to de-registering people, I don’t know how that worked with Medicare because I wasn’t - - -

MR O'DONOVAN: Yes. No, we’re not interested in the mechanics. I guess I’m interested in your – so as at 1 July, my understanding is you were responsible for compliance.


MR O'DONOVAN: Is that right?

THE WITNESS: Yes.

MR O'DONOVAN: Okay. So the compliance mechanism which the Commonwealth had in relation to installers, in terms of that - - -

THE WITNESS: Yes, it would have been to de-register.

MR O'DONOVAN: Was to de-register. Yes. And are you saying that you didn’t understand that as at 1 July?

THE WITNESS: Well, at that point we wouldn’t have been considering it as an option because it was very early days, and we were only just beginning to see anomalies.

MR O'DONOVAN: Yes. I understand that, but - - -

THE WITNESS: I mean, to de-register someone would be a serious decision that you would only make after going through a process and after serious, you know, issues. You wouldn’t – you would make a decision to pull a payment because of suspicion but you wouldn’t de-register someone unless you were – there was strong and forceful arguments and you had a lot of evidence. So I think it’s a different standard of evidence. Yes.


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MR O'DONOVAN: Right. So your concern was that, from your point of view, you would have been prepared to stop payments if someone complained, but you wouldn’t have been prepared to de-register someone.

THE WITNESS: Not without serious – I mean, you’re cutting business from the program so you would have had – that’s a more serious decision, I think, than stopping a payment.

MR O'DONOVAN: But you don’t disagree with the proposition that from 1 July - - -

THE WITNESS: We would have had that as an option, yes.

MR O'DONOVAN: You had that as an option, yes. All right. Now, in relation – now it was put to you, I suppose the dichotomy about what was more important, saving lives or preventing fires. Do you recall that question?

THE WITNESS: Yes.

MR O'DONOVAN: Now, in relation to fires, can you just indicate to us what was the extent of the concern you had in terms of – how could I put this?

THE WITNESS: The concern I had or the concern that the team had, or management had?

MR O'DONOVAN: Yes. Well, I think we can only deal with the concern that you had.

THE WITNESS: Yes.

MR O'DONOVAN: In relation to dealing with the fire, what were the consequences of a fire that you were most concerned about?

THE WITNESS: Well, I was not responsible for dealing with the consequences of fires. I was responsible for running the risk register and the program so it wasn’t my judgment call about what to do in response to fires. My responsibility was making sure that the business owners and the risk owners were thinking about it and – but if they thought it was a risk that needed to be on the register, then making sure it was on the register. So I can’t answer that, I’m sorry.

MR O'DONOVAN: All right. So did anyone say to you anything which suggested to you that the concern about fires was that it needed to be addressed because there actually was concern that lives may be at risk?

THE WITNESS: I recall discussions at PCG where they talked about things that needed to go over light fittings and – and to prevent fires, you know, in the roof. I recall those discussions in the PCG but I don’t – I wasn’t across the technical detail.


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MR O'DONOVAN: Now, if I can take you to paragraph 67 of your statement. Okay. Now you say there – as I understand it, what you’re describing there is the initial desktop audit process. Is that right?

THE WITNESS: Yes, it was – no, it was analysing - it was the analysis, the CAAT scans that Protiviti did on the claims that came in. So I think there I’m talking about the thresholds, as it said here where Protiviti would say to us, there has been, say, a thousand claims today and of those all of these – all of these installers are claiming more claims on one day than we think is reasonable. So it was data analysis.

MR O'DONOVAN: Yes, which could have – as I understand your statement and you describe it there is an initial desktop audit.

THE WITNESS: No.

MR O'DONOVAN: Well, you say:

Protiviti assisted in attending to the initial desktop audit.

So is that something different?

THE WITNESS: Yes, that’s a different thing.

MR O'DONOVAN: Okay. So what was in an initial desktop audit?

THE WITNESS: Well, I meant the – I meant the initial – when we first started doing desktop audits, it was Protiviti that did them, is what I mean. So not every installer would have had an initial desktop audit. When we started doing desktop audits, it was Protiviti that did them.

MR O'DONOVAN: Yes, I understand that.

THE WITNESS: Yes.

MR O'DONOVAN: The question that I – we seem to be at cross-purposes.

THE WITNESS: Yes.

MR O'DONOVAN: My understanding is that an initial desktop audit involves scanning the claims that have been made.

THE WITNESS: No, no. There’s two – a desktop audit was – would be when they would write to an installer and say, please send us all these following documents, and there was a list. There was your current insurance claims, your OH&S certificates, your history of claims. So it was like an audit of the installer which was a desktop audit, because the auditor doing the audit was sitting at a desk. The analysis of the scans was a different activity. That was when you had a thousand claims come


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across, and Protiviti analysed all the claims and told us which claims they thought looked dodgy. So it’s two separate things.

MR O'DONOVAN: So if I can understand paragraph 66:

Protiviti assisted in attending to the initial desktop audits.

THE WITNESS: Yes.

MR O'DONOVAN:

I do not recall that they ever did any roof inspections.

Full stop.


MR O’DONOVAN: And then there should be a – for one – it should perhaps be a new paragraph:

Every day when the claims came across from Medicare, Protiviti did a pre-analysis for us.

Are they different things?

THE WITNESS: Yes.

MR O’DONOVAN: Yes. Okay. So paragraph 67 relates to that second process which is that:

Every day when the claims came across from Medicare, Protiviti did a pre-analysis for us.


MR O’DONOVAN: Okay. And you say that process was not designed to identify whether there were supervisors onsite when installations were being carried out.

THE WITNESS: Not necessarily, no.

MR O’DONOVAN: Not necessarily, no. Okay. And at this point, my understanding is that people from the ATO came across and they were Ms Taylor and Mr Mulligan.

THE WITNESS: Yes.


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MR O’DONOVAN: Okay. And they were then given responsibility for the compliance regime.

THE WITNESS: Yes.

MR O’DONOVAN: Okay. Now, the reason people from the Tax Office was selected is because they were – presumably had financial auditing - - -

THE WITNESS: Had expertise, yes.

MR O’DONOVAN: But specifically financial auditing expertise. Is that right?

THE WITNESS: Yes. And – and, I suppose – I suppose the feeling was that – that compliance with guidelines because I think – my understanding was that they – part of their purview was also compliance with the program guidelines and the compliance principles apply across more than just finance. So the same principles that apply to financial compliance also apply to ensuring compliance with other things as well. So, yes, they were primarily recruited for their compliance skills that they had – they had probably based on financial compliance and fraud detection. Yes.

MR O’DONOVAN: Okay. But you agree that the experience in the Tax Office will assist you with identifying fraud and other matters like that?

THE WITNESS: Absolutely. But I – but I think their skills can also be applied to other things as well.

MR O’DONOVAN: Right. But it wouldn’t assist you to identify whether or not insulation was properly installed.

THE WITNESS: Well, no, but it would assist you to develop an audit methodology so that you could have a – a robust way of checking that.

MR O’DONOVAN: Okay. But my understanding is that they weren’t brought over to develop a methodology, were they?

THE WITNESS: Yes.

MR O’DONOVAN: Okay. So they were brought over to produce a methodology. But in relation to the work that they did, is it fair to say that at that point – as I understand it, at that point, there hadn’t been any compliance activity?

THE WITNESS: No. When we started on 1 July, we – we were looking at issues. We were checking what was – what was questionable. In terms of what we did to follow up with that, I wasn’t aware of – of us ringing people in – in July. From what – from what I remember was that we were assembly the data and leaving it to the experts to follow up. I mean, I suppose, from our point of view, the decision we


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made every day when the claims came over was, “Is the evidence we’re seeing in front of us about somebody doing something dodgy sufficient to stop payment to all the other installers?” Sufficient to justify us making a decision that that run is not going to be paid. And in that early stage, before we really had patterns emerging of individual installers, we never, to my memory, got to the point where we decided that that was justified.

MR O’DONOVAN: Sorry. And actually just go back a step. I think I may have misled you. As I understand it, in June, there was what’s called an outbound call centre established? Or there was a call centre that was making outbound calls seeking insurance certificates?

THE WITNESS: In June.

MR O’DONOVAN: In June.

THE WITNESS: I don’t remember that. I thought it was later.

MR O’DONOVAN: Were you involved with that? Who would have been responsible? Do you have any - - -

THE WITNESS: Mr Lemmon.

MR O’DONOVAN: So Mr Lemmon would have been responsible for arranging that?

THE WITNESS: Yes.

MR O’DONOVAN: Okay.

THE WITNESS: He – he managed all the call centres.

MR O’DONOVAN: Right. And so you – and do you remember that that was one compliance activity which began before the program was launched, or you have no - - -

THE WITNESS: I must admit I – my memory was that it started after, but obviously that memory is wrong.

MR O’DONOVAN: No, I’m – we’re inquiring. I’m not - - -

THE WITNESS: Okay.

MR O’DONOVAN: I’ve seen documents which suggest otherwise - - -

THE WITNESS: Okay. But – but - - -


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MR O’DONOVAN: - - - but do you have a specific recollection?

THE WITNESS: No, I don’t.

MR O’DONOVAN: Yes, all right. So then as we move into July and the Tax Office has come on board – now, you’ve indicated that the supervisor – so at the bottom of paragraph 67. That the – it became clear that claims were being submitted with supervisors who were on multiple sites, long distances apart, which is both – which is evidence of fraud and could be evidence that people were not being properly supervised.

THE WITNESS: Yes.

MR O’DONOVAN: Okay. Now, looking back, you can definitely interpret the data that way.

THE WITNESS: Yes.

MR O’DONOVAN: So when you understand that supervision is an issue.

THE WITNESS: Yes.

MR O’DONOVAN: Now, what I want you to consider is whether at the time, you recall anything which suggests that someone specifically thought that this suggested a lack of supervision from an OH&S point of view? Do you remember any conversation? Do you have any documents that suggest at that time, people realised that this was also revealing an OH&S issue as well as revealing a fraud issue?

THE WITNESS: Well, it would have been – I’m just trying to remember the discussion ..... - - -

MR O’DONOVAN: Now, I’m – if you can restrict yourself – the risk of reconstruction is so great that I want to restrict you to what you actually remember.

THE WITNESS: I’m trying to – I’m trying to think about – I’m trying to remember what we discussed when we discussed these things. I’m sure I remember saying – I’m sure I remember it started off as – the initial discussion was around people making fraudulent claims but I do remember saying this will flow on to the OH&S provision about are people being supervised properly.

MR O’DONOVAN: You remember that?

THE WITNESS: Yes.

MR O’DONOVAN: Okay. Which again suggests that you understood there was a concern.


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MR O’DONOVAN: Okay. And can you remember what you did about it?

THE WITNESS: Well, at this point, we didn’t really have the resources to do an awful lot about it. As I said, the – the people from the ATO started in August and we passed all the information on to them to action.

MR O’DONOVAN: Okay. But in terms of resources - - -

THE WITNESS: Yes.

MR O’DONOVAN: - - - did you at least get yourself to a point where you understood how you could go about deregistering an unsafe - - -

THE WITNESS: No, we didn’t consider deregistration at this point.

MR O’DONOVAN: Okay.

THE WITNESS: What we were considering was whether we would stop the payment run to all the claims of that day. As I say, deregistration would have been an entirely different, in my view, level of evidence and a much more serious decision. So at that point – I mean, there was really no installer we had enough data on that could have led us to that.

MR O’DONOVAN: And did you take advice about - - -

THE WITNESS: We were just - - -

MR O’DONOVAN: - - - how easy or difficult it was to deregister someone? That sounds like a - - -

THE WITNESS: We didn’t get to deregistration in that – at that point.

MR O’DONOVAN: Will you please answer my question. Did you take advice - - -

THE WITNESS: On deregistration?

MR O’DONOVAN: - - - on what evidence would be required?

THE WITNESS: No.

MR O’DONOVAN: Okay. So you formed your own view?

THE WITNESS: We didn’t discuss deregistration.


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MR O’DONOVAN: Okay. If I can just take you to paragraph 56 of your statement. You say:

At page 3 of the document –

so you’re talking about a document which is annexure AK8.

THE WITNESS: Mmm.

MR O’DONOVAN: Okay. And you say:

… there is a heading Other Indicators of Success, under which the document notes “no deaths”. I cannot recall how the list of indicators of success was prepared. We clearly discussed the risk of death of an installer or household owner, but we would have seen it as unlikely in terms of risk to the commonwealth, because it is a state and territory responsibility.

THE WITNESS: Yes.

MR O’DONOVAN: You see that. All right. Now, firstly, the use of the word “would have” suggests you don’t actually have a recollection but - - -

THE WITNESS: I don’t remember much about this meeting at all.

MR O’DONOVAN: Yes, all right. And it’s fair to say that the risk of fire to the householder was always on the risk register, wasn’t it?

THE WITNESS: I can’t remember the detail of where and how it appeared. Yes.

MR O’DONOVAN: Okay. But, sorry, can you remember that the risk of house fire had an owner and was on the register?

THE WITNESS: I can’t remember.

MR O’DONOVAN: Can’t remember. All right. Well, let’s approach it this way. Assume that the risk of a house fire is on the register. Okay. And has a risk owner. If that’s the case, you couldn’t have thought that that issue, at least, belonged to the states?

THE WITNESS: Yes. Yes, I see what you’re saying. Yes.

MR O’DONOVAN: Yes. And so in that statement, you seem to have jumbled up two ideas and then assumed that they’ve been put somewhere.

THE WITNESS: Sorry, which statement are we on now?

MR O’DONOVAN: So you’re saying:


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We clearly discussed the risk of death of an installer or household owner, but we would have seen it as unlikely in terms of risk to the commonwealth because it is a state and territory responsibility.

THE WITNESS: Yes.

MR O’DONOVAN: Okay. Now, what I’m putting to you is that the risk to the household owner was always seen as a commonwealth responsibility.

THE WITNESS: I must admit I don’t remember conversations that split up death or injury as a risk between householder and installer. That doesn’t – isn’t to say they didn’t occur, but I don’t remember it.

MR O’DONOVAN: Yes. So, I suppose, all that I’m putting is that to the extent that that paragraph implies that the commonwealth pushed aside concerns about death - - -

THE WITNESS: All right.

MR O’DONOVAN: - - - that you are reconstructing something which may not be right.

THE WITNESS: Absolutely. Absolutely.

MR O’DONOVAN: All right. Now, you were asked a series of questions by my learned friend, Mr Windsor, about a document that was prepared on 27 January 2010.

THE WITNESS: Yes.

MR O’DONOVAN: It was a colour document.

THE WITNESS: Yes.

MR O’DONOVAN: Okay. I have only one questions in relation to that document. Now, the program closure was announced on 19 February 2010. As at 27 January 2010, were you aware that the program was to be closed?

THE WITNESS: Well, I must admit I hadn’t remembered that document until I saw it today.

MR O’DONOVAN: Now, I’m asking about your recollection.

THE WITNESS: Well, but I’m trying to - - -

MR O’DONOVAN: Yes.


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THE WITNESS: Yes. I’m trying to do that.

MR O’DONOVAN: I don’t want to interrupt.

THE WITNESS: And I have to find somewhere to navigate that from. But – so I don’t have a memory of it. I can only suggest, on the basis of looking at that, that there were hypotheticals that we were being asked to – to run a risk analysis over. But I would not have been party to decisions – all likely decisions about closure. That was way above my pay grade. So I think that we were being asked to do as a group of people is just, “Here are a series of hypotheticals. What do you think the risks might be around them?” But I would not have been party to decisions about closure.

MR O’DONOVAN: Okay. So your recollection is that it was much closer to the announcement of the closure of the program that you became aware that it was - - -

THE WITNESS: I think it was 12 o’clock the night before.

MR O’DONOVAN: Right. Okay. You also gave evidence that it was no secret that – sorry – that the states were not backwards in coming forwards - - -

THE WITNESS: Yes.

MR O’DONOVAN: - - - when it came to asking for resources.

THE WITNESS: That’s my – that’s – experience of people in the Commonwealth, not just me.

MR O’DONOVAN: All right. Now, in relation to this program, at least, it’s fair to say it was no secret that it was announced and there was publicity?

THE WITNESS: Well, there were thousands of people claiming it, so - - -

MR O’DONOVAN: Yes. All right. But more than that, there was enough publicity in - - -

THE WITNESS: Yes.

MR O’DONOVAN: - - - popular media that - - -

THE WITNESS: Yes.

MR O’DONOVAN: - - - any state regulator - - -

THE WITNESS: Could have - - -

MR O’DONOVAN: - - - would have been aware.


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THE WITNESS: Yes.

MR O’DONOVAN: And you would agree that, based on that email from Troy Delbridge, there were, at least by July, communications between the Commonwealth and - - -

THE WITNESS: Yes.

MR O’DONOVAN: - - - state regulators which you were not aware of.

THE WITNESS: Yes.

MR O’DONOVAN: And there may have been other communications.


MR O’DONOVAN: Yes. No, nothing further, Commissioner.

COMMISSIONER: Thank you.

MR WILSON: Commissioner, before Mr McLeod rises, can I raise three matters.

COMMISSIONER: Yes. All right.

MR WILSON: The first is that a number of questions asked – it’s a matter that troubles those assisting you. A number of questions were asked by our learned friend, Mr O’Donovan, which either directly suggested or at least implicitly accepted that the Commonwealth did have a responsibility for installer safety.

COMMISSIONER: Yes. And it’s - - -

MR WILSON: A number of questions were asked on that premise.

COMMISSIONER: And that was accepted, yes.

MR WILSON: I just don’t want to dance around this subject. If that is the Commonwealth’s position, they should clearly state it.

COMMISSIONER: Yes. Well, Mr O’Donovan, you have clearly stated it, I think, haven’t you?

MR O’DONOVAN: Well, it’s, with respect, a concept which is capable of very broad understanding.

COMMISSIONER: No. No, it’s not, really.


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MR O’DONOVAN: No, no. Well, let’s take, for example – there are clearly duties on an employer, which are the primary duty to provide a safe system of - - -

COMMISSIONER: No. There has never been any doubt about that.

MR O’DONOVAN: Equally, there is an obligation on state regulators to undertake enforcement of state OH and S obligations.

COMMISSIONER: If they’re aware of breaches, yes.

MR O’DONOVAN: Yes. In relation to the Commonwealth, nothing which I have said indicated that we would accept that there’s – it depends what the question is. If my learned friend is asking do we accept that there was some tortious duty on the Commonwealth, the answer is the Commonwealth does not accept that.

COMMISSIONER: What I wrote down at 2.44 pm – she agrees that the Commonwealth does accept responsibility for the safety of installers.

MR O’DONOVAN: In the sense that they should, in a broad moral sense, take what steps they could to prevent injuries, and it has been the evidence of all of the witnesses that the Commonwealth wanted to put in place regulations which were higher than what was already there and that, in that sense, it was a positively assumed volunteer obligation. So - - -

COMMISSIONER: Well, I must say that I had the impression from the previous witness that she said absolutely clearly the safety of installers is not a matter for the Commonwealth; it’s a matter for the states.

MR O’DONOVAN: Well, Ms Coaldrake is a private citizen engaged by the Commonwealth. She doesn’t speak for the Commonwealth.

COMMISSIONER: No. But this - - -

MR O’DONOVAN: And the Commonwealth never approached this matter on the basis that there were not things that it could and should do to protect installers, and that is how it behaved throughout the - - -

COMMISSIONER: I must say I was little bit surprised that you asked that question, acting for the Commonwealth, and that persuading her or, shall we say, leading her to say, “Yes, the Commonwealth does accept responsibility for the safety of installers” - - -

MR O’DONOVAN: No, no, no. In - - -

MR McLEOD: Commissioner – sorry. Could I interrupt. Would it be appropriate that Ms Kent leaves the room, because it might have an impact, I foreshadow, in Mr Wilson asking questions.


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MR WILSON: It won’t impact on the questions I ask. The second matter I’m going to raise is about other people asking some more questions, but the reason I’ve raised it is so that we don’t do exactly this dancing around on the point.

COMMISSIONER: Has it been answered to your satisfaction?

MR WILSON: No.

MR McLEOD: Well, can I – sorry.

MR O’DONOVAN: Commissioner - - -

MR McLEOD: If - - -

COMMISSIONER: All right. Look, you wait outside - - -

THE WITNESS: Okay.

COMMISSIONER: - - - if you don’t mind, and we will turn off the streaming.

<THE WITNESS WITHDREW [3.22 pm]

MR PERRY: Can I raise one matter which may be of assistance. Perhaps it would be useful to have a proposition that was put to the witness accurately reflected, because I have the same recollection as Mr Wilson and, I think, of you that it was put in clear, express and unequivocal terms. But so that we are all on the same ground, is it possible to have that passage – and you helpfully, sir, have a note of the time.

COMMISSIONER: Yes.

MR PERRY: Is it possible to have that proposition retrieved from the transcript?

COMMISSIONER: Would that help, Mr O’Donovan?

MR O’DONOVAN: With respect, I don’t think it will because everything needs to be understood in context, and what was being discussed was whether a matter should be included in the risk register because the Commonwealth had no responsibility in relation to it, and what was put by this witness this morning was, “Look, the Commonwealth washes its hands of that issue. That’s a matter solely for the states.” All that I was putting to the witness was that the Commonwealth accepted as a matter of practical reality that it should do more than nothing, which is what she was implying in her evidence this morning, that is, that the Commonwealth should take it off the register and really could do nothing about it. In my submission, there is nothing inconsistent with the approach the Commonwealth has taken to the commission to say that the Commonwealth accepted that it should assume the

9.4.14 P-2523 ©Commonwealth of Australia

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obligation of doing more to protect installers and that it discharged that obligation to the extent that it could.

COMMISSIONER: Does that mean that you would submit the Commonwealth should not have taken safety to installers off the risk register?

MR O’DONOVAN: Well, it shouldn’t have been taken off the risk register because the Commonwealth was behaving as if it was a risk owner and was taking treatments to ameliorate that risk and, when those risks emerged, took steps to ameliorate it. So it is clear that the register does not reflect the state of mind of the people who were actually administering the program. The point goes no further than that, and to the extent that - - -

COMMISSIONER: But then if that’s right, then you have to say Ms Coaldrake is wrong insofar as she says, “All I did was act as a facilitator,” because, therefore, the material that she is dealing with comes entirely from your clients.

MR O’DONOVAN: Well, there is a mystery about how it was that installer safety came to be removed.

COMMISSIONER: Yes.

MR O’DONOVAN: And this witness suggested that it was a positive, conscious decision by the Commonwealth that it had no role in relation to installer safety. And our submission will be that that was not the state of the mind of the Commonwealth: that it had no responsibility. It did have responsibilities in the sense that there were things it could do and should do, which it did.

COMMISSIONER: But, you know, Ms Coaldrake as well, reflecting what your client said, said the Commonwealth has no responsibility for the safety.

MR O'DONOVAN: Well, it remains to be seen – and this is a matter which we’re investigating. I accept it’s a serious question for the Commission and, at a factual level and a practical level, difficult to resolve but the question – at least to my mind – is not yet resolved whether it was removed from the register by accident or whether it was deliberately taken off because it wasn’t a Commonwealth responsibility. To the extent that – if it was deliberately taken off, our submission will be that that did not reflect the attitude of the important officers of the Commonwealth who were responsible for safety because those matters – on all matters the Commonwealth continued to progress the matters within its control in terms of establishing – doing its best to ensure that the process was a safe one.


MR O'DONOVAN: But to the – but – I’m grateful to counsel assisting for raising the issue - - -


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COMMISSIONER: For raising it – as well to raise it.

MR O'DONOVAN: - - - because it should – it should not be understood that the Commonwealth’s position is that I was putting to the witness that the Commonwealth outside of risk ownership within the risk register, that the Commonwealth had some legal duty which I see is – as a different question and not one to which I was seeking to elicit evidence and not a question on which this witness is capable of giving evidence.

COMMISSIONER: Thank you. What’s your second point?

MR WILSON: The second point is – Commissioner, my respectful submission is given the time that was taken by Mr Barrow and Mr Potts, which was very efficient, and the time that was taken by our learned friend Mr Howe for the Commonwealth, that those two counsel who were not finished - - -

COMMISSIONER: Cut short by me.

MR WILSON: - - - cut short by you should be afforded – if they – if they want to ask any further questions and can - - -

COMMISSIONER: Yes. Yes.

MR WILSON: - - - do so within a reasonable time, they should be afforded that opportunity.

COMMISSIONER: Well, certainly there’s been some time caught up by virtue of the brevity of the others.

MR WILSON: The third - - -

COMMISSIONER: Mr Perry and - - -

MR WILSON: Sorry, Commissioner, the third point is - - -

COMMISSIONER: Yes.

MR WILSON: - - - allied to that, would you sit until 5 o’clock today?

COMMISSIONER: The answer to the third point is “yes” is that’s what – if that’s acceptable. No problem with that, anybody? Going back to the second point, Mr Perry and Mr Keim, I know that you were keen to continue questioning when I stopped you. Bearing in mind all the evidence that we’ve heard since then, are there questions that you still wish to ask?

MR PERRY: There are.


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COMMISSIONER: Well, go ahead.

MR KEIM: Your Honour, I don’t have any such questions so - - -

COMMISSIONER: You’ve got no more, Mr Keim?

MR KEIM: No. So Mr Perry can question in the light of that indication from me as well, Commissioner.

COMMISSIONER: All right. Thanks, Mr Perry.

MR PERRY: It’s a bit tough - - -

COMMISSIONER: You’ve got no one to question.

MR PERRY: It’s a bit hard. I might get the admissions I’m after .....

COMMISSIONER: And Mr McLeod, then I will give you a - - -

MR McLEOD: Thank you, Commissioner.

COMMISSIONER: Just a few more questions from Mr Perry.

<AVRIL SHIRLEY KENT, RECALLED [3.29 pm]

<EXAMINATION BY MR PERRY

MR PERRY: You had said to counsel for the Commonwealth that at a stage which looks like about August when the provisional audits were going in and people were looking at claims and so forth - - -

[3.30 pm]THE WITNESS: Yes.

MR PERRY: - - - you had expressed a view that what you were seeing caused you to have concerns about whether supervision was being done appropriately. Did you take that concern up to the PCG?

THE WITNESS: In a formal way? I don’t think so.

MR PERRY: In any way?

THE WITNESS: I don’t think so, no.


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MR PERRY: But you had concerns that the supervision assumption that you the Commonwealth had been proceeding upon might not, in fact, be reflected by what was happening on the ground. That seems to be your concern.

THE WITNESS: Yes, I was – we were starting – I was starting to have concerns and the compliance getting worse.

MR PERRY: And you expressed those concerns. I think you said to counsel for the Commonwealth you said something about that.

THE WITNESS: Yes.

MR PERRY: Right. If they’re the concerns you had, were they at any stage taken to the PCG? That is, in August or September, your concerns about whether supervision was in fact going on in the way that you had assumed it was. Did you ever take that to the PCG?

THE WITNESS: I don’t think – no, not to PCG. I don’t think so.

MR PERRY: To anyone else?

THE WITNESS: I would have discussed it probably informally with Mr Keefe and with the other directors in the weekly meeting.

MR PERRY: Well, if you’re having these discussions about the concerns you’ve got, why would it not be taken to the PCG?

THE WITNESS: Because at that stage we didn’t have much evidence to investigate it or support it.

MR PERRY: Right. What was done, then, to see if that evidence existed?

THE WITNESS: Well, when we had experts come in in August, I handed it over to them and investigated.

MR PERRY: They were the ATO people?

THE WITNESS: Yes.

MR PERRY: Do you know if the ATO people ever turned their mind at all to the question of supervision rather than turning their mind to the more direct financial issues?

THE WITNESS: I don’t know if you could split them both off.

MR PERRY: Well, did you tell the ATO people that one of the things they ought look at is this question of whether or not supervision was actually being undertaken?


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THE WITNESS: Yes, we did talk about compliance with the guidelines including supervision.

MR PERRY: Right. So the ATO people were made aware that one of the issues that they should be looking at is this question of whether or not supervision was, in fact, being undertaken in the way that you say had been assumed previously?

THE WITNESS: Yes.

MR PERRY: Right. And who were those people that you told to look at that point in particular?

THE WITNESS: Ms Taylor and Mr Mulligan.

MR PERRY: Mr Mulligan. Okay. All right. The second issue, the installer guidelines. I think Mr Wilson took you to a few.

THE WITNESS: Yes.

MR PERRY: Were the installer guidelines approved or cleared by the PCG before they went out?

THE WITNESS: I think the installer guidelines were finalised before I got there.

MR PERRY: That can’t be right because some of them were in September and October and so - - -

THE WITNESS: You mean the changes to them?

MR PERRY: Yes.

THE WITNESS: Yes.

MR PERRY: My mistake.

THE WITNESS: Yes.

MR PERRY: Can we start again. The installer advices rather than installer guidelines. Remember Mr Wilson - - -

THE WITNESS: Installer advices.

MR PERRY: Yes.

THE WITNESS: Yes. So I wouldn’t – I wouldn’t have seen them necessarily - - -

MR PERRY: No.


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THE WITNESS: - - - before they went out.

MR PERRY: Do you know if the PCG approved them before they went out?

THE WITNESS: No, I don’t think so.

MR PERRY: Who did?

THE WITNESS: Well, Ross Davidson was the director and I don’t know how many Kevin Keefe would have – there was his supervisors. So whether Kevin checked them all or whether Ross sent them all out, I don’t know, I’m sorry.

MR PERRY: So you know that they didn’t go up to the PCG because you would have known if that had happened.

THE WITNESS: Yes.

MR PERRY: Right.

THE WITNESS: As far as I know.

MR PERRY: So the PCG, it would appear, doesn’t – in this structure of yours, does not have any role in approving the content of the installer advices which are sent out to the installers.

THE WITNESS: Well, they would have discussed – sometimes as a mitigation against a risk that an advice needed to go but the content of the advice and how it – how it finally looked would be line management job.

MR PERRY: And line management is Mr Davidson.

THE WITNESS: And Mr Keefe.

MR PERRY: Right. I’ve got the QIC code for the these and – because it makes it easier for me. I’m just taking you to a couple of them. QIC.006.001.2924 and I want to go to page 2954. And hopefully, if this works, what you’re looking at is installer advice 11 of 19 October. Here we go. See installer advice 11?

THE WITNESS: Yes.

MR PERRY: Right. This is shortly after Matthew Fuller was killed.

THE WITNESS: Right.

MR PERRY: You will see at the bottom “Installers should ensure”? That:


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…ensure that only trained and competent installers are allowed to enter the roof space.

THE WITNESS: Yes.

MR PERRY:

The following procedures will help keep your workplace safe.

Now, this is a fairly concise and in many respects accurate recitation of what perhaps should have been happening on site. Would something like this – bearing in mind its terms and its input – be approved by the PCG before it went out or is this only Mr Davidson?

THE WITNESS: The content of this would not necessarily be approved by the PCG, no.

MR PERRY: Okay. So would it be left up to Mr Davidson or people working with him to determine what should be included in an installer advice such as this and then send it out to installers? Is that right?

THE WITNESS: Well, I think the way I remember it is in the PCG, there was – it was discussed and agreed what the content should be and what it should cover but the actual wording and the final version would be - - -

MR PERRY: I understand.

THE WITNESS: - - - Mr Davidson and Mr Keefe.

MR PERRY: Before it went out, there would be a discussion by the PCG to consider the parameters of the document and what it should include but the actual words themselves would be left up to Mr Davidson?

THE WITNESS: And Mr Keefe.

MR PERRY: And Mr Keefe. So before installer advice 11 went out you would expect there would have been discussion at PCG about, for example, “Installers should ensure” – fairly clear word – “that only trained and competent installers are let in” – into the roof space and then those dot points on the next page. That is the sort of area that the PCG would turn its attention to.

THE WITNESS: Sometimes they discussed what would go onto an installer advice and sometimes they didn’t.

MR PERRY: All right.

THE WITNESS: So I can’t answer on this particular one.


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MR PERRY: Okay. All right. If they did discuss it, would it be in the PCG minutes?


MR PERRY: And if it’s it not in the minutes, do I take it that means it wasn’t discussed?

THE WITNESS: I think that’s the most likely explanation.

MR PERRY: All right. Now, page 2952 if you would. ..... the way in which this set of documents ..... Do we go to the front to .....

THE WITNESS: Okay.

MR PERRY: So this is now ..... 12 days after Matthew’s death. Go onto the second page. Information resources, right at the bottom of that second page. Okay. Now, ..... industry comment, do you see that?

THE WITNESS: Yes.

MR PERRY: Further to the brief information on safety issues.

THE WITNESS: Mmm.

MR PERRY: Right. Would something like this, and if you like, just quickly familiarise yourself with what is enclosed in this ..... advice. Scroll down a bit further if you would, please ..... That’s the master electrician saying something, hence it’s in it italics. Keep going. All right. Now, I represent also members of the family Reuben Barnes. If the power had been turned off as these two installer advisors say, a very strong likelihood is that he would be alive.

THE WITNESS: Mmm.

MR PERRY: Are these not the sorts of issues that the PCG would have concerned itself with? Giving this sort of advice to installers?

THE WITNESS: The PCG would have concerned itself with directing that this sort of advice should be given, but they wouldn’t necessarily attack your wording.

MR PERRY: Okay. The words ..... might be by someone else.


MR PERRY: But I’m talking about the thrust of it.

THE WITNESS: Yes.


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MR PERRY: When the changed guidelines came out a couple of – or a week or so later on 2 November or thereabouts, what ..... in store advice 11 and 12 about turning off the power and these sorts of things does not appear. Were the installer guideline changes the subject of PCG consideration before they then went to the minister, etcetera?

THE WITNESS: Well, my memory is that they were – would have been discussed, yes.

MR PERRY: Yes. Okay. Thank you. And then lastly, you spoke about not discriminating between types of insulation, do you recall that?

THE WITNESS: I said I overheard conversations where people said that they didn’t believe it was appropriate to discriminate .....

MR PERRY: Did those people, or you, in those discussions take into account that different types of insulation carried with it very different types of risks?

THE WITNESS: I didn’t get into that level of technical detail at all.

MR PERRY: ..... aluminium foil, you would understand that that’s electrically conductive, wouldn’t you?

THE WITNESS: Not necessarily. I wasn’t there as a technical advisor.

MR PERRY: I didn’t ask you that. Your life’s experience would let you know something as fundamental as that.

THE WITNESS: I had no involvement or understanding or purview to get involved in technical discussions about what was conductive and what wasn’t.

MR PERRY: These people who made these observations about not discriminating, are you able to tell us who they might be?

THE WITNESS: It would have been – it would have been either discussions in Mr ..... weekly director meeting, or perhaps in PCG meetings around the edges.

MR PERRY: And do I take it the tenor of those discussions in that context was that for all practical purposes, there was no difference between one type of insulation and another, and that’s why shouldn’t discriminate between them?

THE WITNESS: No. No. I think they were discussing that there were – there was various characteristics of different kinds of insulation, that – and I think I recall people saying foil emerging with particular risks. And my memory of the discussions was that they – people were concerned that it wasn’t appropriate for the Commonwealth to discriminate.


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MR PERRY: But in those discussions where people were concerned not to discriminate, there was a recognition that foil was emerging as having particular risks, .....?

THE WITNESS: I think I remember that emerging, yes.

MR PERRY: When was that?


MR PERRY: Well, think: Before Matthew Fuller’s death or after? Which one?

THE WITNESS: I couldn’t even tell you that, I’m sorry.

MR PERRY: Okay. Thank you.

COMMISSIONER: Thank you, Mr .....

MR MCLEOD: I have no questions, Commissioner.

MR WILSON: Nor do I. May Ms Kent be stood down?

COMMISSIONER: Ms Kent, thank you very much for giving evidence. You are stood down. You may go.

THE WITNESS: Thank you.

COMMISSIONER: If we want you again, we will let you know.

THE WITNESS: Please don’t call.

COMMISSIONER: Thank you, very much.

THE WITNESS: Thank you.

<THE WITNESS WITHDREW [3.40 pm]

MR WILSON: Commissioner, the next witness is William Kimber.

COMMISSIONER: Call Mr Kimber. Are you hoping to finish Mr Kimber today? Or – no. Thanks Mr McLeod.

MR M. SPRY: Commissioner, if I could announce my appearance. My name is Spry, S-P-R-Y, initial M. I appear with Mr King.


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COMMISSIONER: Mr Spry. Thank you.

<WILLIAM KIMBER, SWORN [3.41 pm]

<EXAMINATION-IN-CHIEF BY MR WILSON

COMMISSIONER: Yes, Mr Wilson.

MR WILSON: Is your name William Kimber?

THE WITNESS: Yes.

MR WILSON: Have you, for the purpose of this Commission, provided a statement dated 4 April 2014?

THE WITNESS: I would need to check the date, but yes, I think that’s correct.

MR WILSON: Okay. Do you have a copy of the statement with you?

THE WITNESS: Yes, I do.

MR WILSON: Have you read the statement recently?

THE WITNESS: Yes, I have.

MR WILSON: Are there any changes or additions that you would like to make to it?

THE WITNESS: No.

MR WILSON: If I could ask you to pull out a copy of your statement, because I’m going to take you to various parts of it. And first to paragraph 4, do you have it in front of you?

THE WITNESS: I do, yes.

MR WILSON: You say that you were responsible for designing and implementing aspects of the home insulation program. Which aspects of it were you responsible for designing?

THE WITNESS: Primarily, I was involved in the program guidelines.

MR WILSON: So drafting those?

9.4.14 P-2534 W. KIMBER XN©Commonwealth of Australia MR WILSON

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THE WITNESS: Yes.

MR WILSON: What aspects of the program were you responsible for implementing?

THE WITNESS: Well, the program guidelines covered the way that the program would be established, so I don’t really understand your question.

MR WILSON: Well, you say were responsible for designing and implementing aspects of the program. You see, in paragraph 4?

THE WITNESS: Yes.

MR WILSON: Do I understand that there’s no distinction in your mind between designing and implementing? And that what you did was draft the program guidelines?

THE WITNESS: Well, I worked in that area for over a year, so I worked on various aspects of the program, including in its design and implementation.

MR WILSON: Right. And I was seeking to differentiate between the two concepts, you see.

THE WITNESS: Yes. I don’t really understand what you’re asking me.

MR WILSON: First, you could design the program?

THE WITNESS: Yes.

MR WILSON: Set it up. See what its elements are.

THE WITNESS: Yes.

MR WILSON: And then secondly, you could implement that program. That is, put it into practice, people doing work under it.

THE WITNESS: Mmm.

MR WILSON: Now, I was asking you to differentiate between the two, and I asked what aspects of the home insulation program you designed. And I understood your answer to be, you did the guidelines.

THE WITNESS: Yes.

MR WILSON: Then what aspects of the program did you implement?

THE WITNESS: Well, can you give me an example of what you mean by - - -


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MR WILSON: Well, did you participate in industry meetings?

THE WITNESS: Yes.

MR WILSON: Did you participate in discussions of a project control group meeting, etcetera, etcetera?

THE WITNESS: Yes.

MR WILSON: Well, tell me what aspects of the program you were involved in implementing.

THE WITNESS: Industry consultation. Project control group meetings. Aspects of the training.

MR WILSON: Yes. Does that exhaust your involvement?

THE WITNESS: Well, the other parts of my statement refer to other things that I was involved in.

MR WILSON: It’s not a trick question, Mr Kimber. I’m just reading from your statement, and you seem to distinguish between, or differentiate between design and implement; I’m just teasing that out. If there is no difference, just tell me.

THE WITNESS: Well, I – it depends on what you’re driving at.

MR WILSON: Well, it’s your statement. I’m just trying to see what you mean by it. That’s all.

THE WITNESS: Okay, well, I don’t understand what question you’re asking me.

MR WILSON: Okay. We will move onto something else.

THE WITNESS: Okay.

MR WILSON: You say in ..... I reported to Beth Riordan.

THE WITNESS: Yes.

MR WILSON: Did you work closely with Ms Riordan from 3 February 2009 until she left in mid-April?

THE WITNESS: Yes.

MR WILSON: You would have seen her every day.

THE WITNESS: Yes.


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MR WILSON: Did you have an exchange of information about aspects of the program that you were both working on?

THE WITNESS: Yes.

MR WILSON: And you would pass onto her information that you learnt during the course of your work, yes?

THE WITNESS: Yes.

MR WILSON: And she would pass on to you, information that she learnt during the course of her work?

THE WITNESS: Yes.

MR WILSON: Okay. Did you attend the industry roundtable on 18 February 2009?

THE WITNESS: I would need to refer to documents to know whether I can - - -

MR WILSON: DAR.002.001 – sorry – 0263.

THE WITNESS: Can you provide me a copy of that?

MR WILSON: It’s coming up on the screen. Now, go down to page – sorry – go to attachment A first and we will see if you will recall it as being there. It might be page 7. Okay. Keep scrolling down. Right. We see you there at the bottom of the page. You’re at the meeting, do you accept that?

THE WITNESS: That’s what the document says, yes.

MR WILSON: Do you accept that you were at the meeting?

THE WITNESS: Well, I can’t recall whether I was at a meeting on 18 April but that’s what this document says.

MR WILSON: 18 February 2009.

THE WITNESS: Right. Well, my recollection of what I was doing on 18 February 2009 is not clear but you’ve presented this document and I’m willing to accept that that’s what the document says.

MR WILSON: Well, you started work on 3 February 2009, the same day as the Prime Minister announced the program. And within two weeks and one day, were you at a large gathering of industry representatives?

THE WITNESS: I’m willing to accept that, yes.


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MR WILSON: Okay.

THE WITNESS: But I don’t have specific recollection of attending the meeting.

MR WILSON: Okay. Go to page 5 of that document, please. Keep going down. See the dot point third from the bottom? It was proposed that people that are already in the industry. Can you see that dot point?

THE WITNESS: Mmm.

MR WILSON: Read the last two sentences to yourself, please.

THE WITNESS: Yes.

MR WILSON: You’ve re-read that recently?

THE WITNESS: I have not re-read that sentence recently.

MR WILSON: You seemed to read it very quickly. Peter Ruz provides an example. Can you see that?

THE WITNESS: Right. Yes.

MR WILSON: Do you recall that?

THE WITNESS: Well, I recall Peter Ruz and – I mean, I don’t recall the specifics of the example that he provided on that day, no.

MR WILSON: That was a pretty important piece of information, wasn’t it?

THE WITNESS: It seems to be, yes.

MR WILSON: Well, it seemed to be at the time an important piece of information?

THE WITNESS: I would say yes. I would agree with that.

MR WILSON: What did you do as a result of hearing that?

THE WITNESS: I don’t recall what I did.

MR DONOVAN: I object to the question. He said he had no memory of – it seems to be even put on a premise that the witness has not accepted.

COMMISSIONER: Well, if he says he has got no memory of it now, then that’s an answer, isn’t it? But I think the question is all right. I know what you’re getting at. Go on, Mr Wilson.


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MR WILSON: If you accept that that was said at a meeting that you were present at and you’ve just agreed with me that it was an important piece of information, what did you do about it?

THE WITNESS: Well, I don’t recall Mr Ruz making a statement at that meeting because I have no recollection of attending the meeting.

MR WILSON: If Mr Ruz made that statement and you were at the meeting, was it of sufficient importance that you would have done something about it?

THE WITNESS: Well, possibly but my role in the program was not as a decision maker so it’s not clear what you’re asking me in relation to what I did.

MR WILSON: Well, if you accept that you went to a meeting on 18 February 2009 – we will make this really simple. Okay. You went to that meeting - - -

COMMISSIONER: I don’t know if he has accepted that, Mr Wilson, in fact.

MR WILSON: Well, he’s on the attendance list.

COMMISSIONER: Yes, he’s on the attendance list.

MR WILSON: Do you accept that?

THE WITNESS: I accept that I’m on the attendance list, yes.

MR WILSON: Do you accept that you went to the meeting?

THE WITNESS: I don’t recall going to the meeting.

MR WILSON: You don’t recall going to an industry meeting two weeks after you started work on the HIP?

THE WITNESS: I do not have specific recollection of going to that meeting.

MR WILSON: Okay. I will ask it in the abstract, then. If you went to the meeting – let’s assume that fact.

THE WITNESS: Right.

MR WILSON: And if Mr Ruz said what’s ascribed to him in those minutes, would you regard that as an important piece of information?

THE WITNESS: Probably, yes.

MR WILSON: And had you heard that, what would you have done about it?


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THE WITNESS: I would have taken notice of it.

MR WILSON: Taken notice of it?

THE WITNESS: Yes.

MR WILSON: End of answer?

THE WITNESS: In my role in developing the program guidelines, we were interested in the risks that were involved in the program - - -

MR WILSON: Well, it’s a pretty specific risk.

THE WITNESS: And that is a specific risk. So I would have been interested in it and I would have taken note of it in my work.

MR WILSON: And done what with it?

THE WITNESS: Well, I don’t - - -

MR WILSON: Memo to self, file away forget about it? Or what would you have done with it?

THE WITNESS: I don’t recall having done anything specifically with this comment.

MR WILSON: Okay. Let’s have a look at AGS.002.017.1602. Read the email – this is an email from Mr Ruz to Ms Riordan the day after that meeting.

THE WITNESS: Okay.

MR WILSON: Read the second paragraph to yourself. Did Ms Riordan show you a copy of that email?

THE WITNESS: I don’t recall seeing a copy of the email from Ms Riordan.

MR WILSON: I don’t recall. All right. Did Ms Riordan share with you the information in that email? I don’t recall, is that going to be your answer?

THE WITNESS: I’m sorry, but I don’t recall that.

MR WILSON: You don’t recall. Thank you. Was a file kept in the department of information that pertained to safety risks?

THE WITNESS: There were files kept.

MR WILSON: Electronically or hard copy?


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THE WITNESS: Both.

MR WILSON: Was there a file kept in hard copy about safety risks?

THE WITNESS: I would imagine there may have been but I’m not sure.

MR WILSON: And would you expect that an email such as that would be placed on such a file?

THE WITNESS: Yes. I mean, that would seem to be appropriate, given the content of the email.

MR WILSON: Particularly if you accept that the day before this, Mr Ruz made an observation at an industry meeting in slightly more general terms than that?

THE WITNESS: Yes.

MR WILSON: Did you have access to that safety file during the course of your duties?

THE WITNESS: Well, as I said before, I don’t know what the titles or the names of files were, but - - -

MR WILSON: The file in respect of which documents pertaining to safety risks were placed?

THE WITNESS: If there were files pertaining to safety and technical requirements with the installation of insulation, then yes I would have had access to them.

MR WILSON: And at any stage during the program – and you remained there until February 2010, didn’t you?

THE WITNESS: May 2010.

MR WILSON: Yes. Well, until at least February 2010. Did you have access to – did you go back to the files to look at what warnings you were given about safety risks?

THE WITNESS: I remember going back to the files and that would have been part of my duties on a regular basis to keep records and to maintain those records.

MR WILSON: And when you say “on a regular basis”, what do you mean?

THE WITNESS: Well, in the course of my duties, I would have referred to files as well as created files.


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MR WILSON: Yes. In what circumstances can you now recall that you would have had to go back and look at the file containing documents pertaining to safety issues?

THE WITNESS: Sorry, can you repeat the question?

MR WILSON: In what circumstances would you need to go back and look at the file that contained documents pertaining to safety issues?

THE WITNESS: I think there would have been a number of circumstances when that would have happened.

MR WILSON: Tell me what they were.

THE WITNESS: Well, as we were designing the program, we were aware that there were these risks, including around safety and other risks. And as part of our job in attempting to implement the program and meet the government’s objectives, we looked at information on a regular basis as part of designing and implementing that program. So it would have been on a regular basis.

MR WILSON: Your first part of the answer to my question is that you were aware there were these risks. What – I’ve only asked you so far about Mr Ruz. What risks are you referring to? These risks that he refers to.

THE WITNESS: The safety risks. Those and others.

MR WILSON: So you were aware of the specific risk that Mr Ruz had raised?

THE WITNESS: About New Zealand or about safety?

MR WILSON: About the practice of affixing reflective foil insulation with metal staples to joists.

THE WITNESS: Well, I mean, this – this document refers to that, so it’s reasonable to – to say that the department was aware of it because this document exists.

MR WILSON: And were you aware of it?

THE WITNESS: Well, I don’t recall the specifics of this document or this email. I note that I’m not on the email.

MR WILSON: No. But when you answered my question, you said, “We were aware of these risks.” I was asking you what these risks were.

THE WITNESS: Well, the risks that were outlined in the risk management plan.

MR WILSON: That didn’t happen until mid-March, did it?


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THE WITNESS: I’m not sure of the exact timing, but we started the risk management planning process quite soon.

MR WILSON: Do you accept that in starting the risk management process, one of the tasks you would undertake would be to see what risks you had been told about?

THE WITNESS: Yes.

MR WILSON: He’s a risk that Ms Riordan and Ms Marconi have been told about.

THE WITNESS: Okay.

MR WILSON: You were working with Ms Riordan.

THE WITNESS: Yes.

MR WILSON: You said that there was a file, however described, into which documents were placed that dealt with safety issues.

THE WITNESS: Yes.

MR WILSON: This is a document that deals with a safety issue.

THE WITNESS: Yes.

MR WILSON: In doing the work, would you have been aware of this risk?

THE WITNESS: I’m not aware of this particular email. I don’t have a recollection of it.

MR WILSON: Don’t worry about the particular email. Of this risk.

THE WITNESS: I was aware of safety risks.

MR WILSON: Safety risks with the use of metal foil?

THE WITNESS: It did come up, yes.

MR WILSON: And it came up very early, didn’t it?

THE WITNESS: I don’t recall exactly when it came up, but I remember it coming up.

MR WILSON: It came up very early.

THE WITNESS: Well, I don’t recall when it came up exactly, but I recall it coming up.


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MR WILSON: Did it come up before Mr Fuller died on 14 October 2009?

THE WITNESS: We would have been aware through the risk management process that safety risks, including the risk with foil insulation, existed in the program before – before the main phase of the installation occurred in July.

MR WILSON: So before 1 July 2009, you were aware of it?

THE WITNESS: Yes, absolutely.

MR WILSON: The first Project Control Group meeting was on 9 April, I think. Were you aware of it before then?

THE WITNESS: Well, if you were able to provide me with some documents with the dates on it, then I would be able to help you with more precision around when we were aware of it, but if you’re asking me to recall exactly when we were aware, I can’t confirm that.

MR WILSON: I’m just asking you to narrow it down. That’s all. We know as a matter of fact that an email was sent to Ms Riordan on 19 February.

THE WITNESS: That’s this email here?

MR WILSON: Yes.

THE WITNESS: Yes.

MR WILSON: You worked with Ms Riordan.

THE WITNESS: Yes.

MR WILSON: You worked in devising the guidelines for the phase 1 of the program?

THE WITNESS: Yes.

MR WILSON: And the guidelines for phase 2 of the program.

THE WITNESS: Yes.

MR WILSON: As part of that, you needed to also do some work on risk.[4.00 pm]

THE WITNESS: Yes.

MR WILSON: You say that you were aware of this risk. All I’m asking you is, to the best of your recollection, when did you become aware of it?


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THE WITNESS: I can’t – I can’t give you an answer to that because I don’t know when I first became aware of it, because this email was not provided to me, and I know that there are lots of other documents and material that was produced in and around this time that also go to these issues. And so if you’re asking me to say that I was aware – I first became aware of it on 19 February at 6.59 pm - - -

MR WILSON: I wasn’t asking you that at all, and you know I wasn’t asking you that.

THE WITNESS: I don’t understand what you are asking.

MR WILSON: I’m trying to place it in a – this isn’t funny, Mr Kimber. Four men have died. You realise that?

THE WITNESS: I don’t think it’s funny.

MR WILSON: Now, all I’m asking you to do is place it in a period of time. You’ve said it was before 1 July. I’m trying to narrow it down further than that. I asked you whether it was before the Project Control Group started meeting. That’s where we got to. Do you know whether it was before that?

THE WITNESS: Possibly.

MR WILSON: You said there were other documents floating around about this at the same time. What other documents were floating around about the risk of people electrocuting themselves by driving metal staples through foil at around this time?


MR WILSON: Well, you just volunteered an answer that there were other documents floating around. What were they?

THE WITNESS: I’m aware that there are other documents, but I can’t tell you the date or the title of those documents.

MR WILSON: What about their contents?

THE WITNESS: I can tell you that there were other documents that pertained to the risks at this time.

MR WILSON: Of? Driving metal staples through foil?

THE WITNESS: I don’t know that.

MR WILSON: Now, you say in paragraph 5 that you were acting director of the HIP team in late April or May 2009. Does that mean you took over Ms Riordan’s position?


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THE WITNESS: I did, yes.

MR WILSON: Thank you. In paragraph 14 of your statement, you say that it became apparent to the team – I assume you mean or include in that to you – became apparent to you – that the training of installers would need to be addressed. Do you see that?

THE WITNESS: Yes.

MR WILSON: That’s something that became apparent to you?

THE WITNESS: Yes. It did.

MR WILSON: Why?

THE WITNESS: Because we were aware that there were risks that installers could – that there would be heightened risk if installers weren’t trained properly.

MR WILSON: And can I break that down into the two parts. What was the risk that was heightened?

THE WITNESS: Well, there are a number of risks around safety and quality.

MR WILSON: And which was the particular risk that was heightened if training wasn’t provided or adequate training wasn’t provided?

THE WITNESS: Safety and quality.

MR WILSON: Right. And did you consider that that was a matter that concerned the Commonwealth?

THE WITNESS: I didn’t – it wasn’t my job to determine whether that was a risk that would flow to the Commonwealth or not, but I was concerned that those risks existed.

MR WILSON: And that’s the risk of injury or death to installers.

THE WITNESS: Can you repeat the context of the question?

MR WILSON: Yes. I was responding to your answer. You said that you were aware that there were risks, and I simply asked was one of those risks the risk of death or injury to installers.

THE WITNESS: I don’t know that the risk management process at that time had identified that there was a risk to injury of installers, but I was concerned that these activities could lead to that.


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MR WILSON: When did you become concerned?

THE WITNESS: Concerned about what?

MR WILSON: That the activities could lead to death or injury of installers?

THE WITNESS: In the process of doing the risk assessment.

MR WILSON: And can you place that in a period of time?

THE WITNESS: In the period when we were doing the risk assessment.

MR WILSON: March 2009?

THE WITNESS: That’s when we started doing the risk assessment, yes.

MR WILSON: And is that when you became concerned?

THE WITNESS: I became concerned with the range of risks during that time, but I can’t be precise about you – with you about when I first became concerned about the risk of injury to installers specifically.

MR WILSON: We’re aware as a matter of fact that a risk register was presented to a Project Control Group meeting on 9 April. Are you familiar with the term “risk register”?

THE WITNESS: Yes.

MR WILSON: You saw those in the course of your duties?

THE WITNESS: Yes. I did.

MR WILSON: Had you formed a concern by the time that that document was finalised on 9 April about the risk of injury or death to installers?

THE WITNESS: I mean, I don’t have a copy of the document you’re referring to.

MR WILSON: We will give you one.

THE WITNESS: If a document did exist on 9 April that said there was a risk to installers, that would have been concerning to me, yes.

MR WILSON: I think you might be answering a slightly different question, Mr Kimber. You said in answer to one of my questions that you developed a concern that it could be a risk that installers could injure themselves. That was one of the risks that could be attendant on this scheme. My question to you was when did you become aware or when did you form that concern. I’m trying to tie down a period of


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time, and I told you as a fact that 9 April was the date when the risk register was presented to the PCG. My question to you is did you have the concern before that date?

THE WITNESS: I don’t recall when I first had the concern about the risk to installers.

MR WILSON: Okay. Now, do you recall – this is just moving on to a slightly different topic – early in the design and implementation of the program having discussions with Ms McEwan from the Department of Employment?

THE WITNESS: Yes.

MR WILSON: When I say early, towards the end of February 2009.

THE WITNESS: I mean, I remember having discussions with Melissa McEwan, but I can’t tell you when I first had those discussions.

MR WILSON: Whenever those first discussions were you spoke to Ms McEwan about the training or the possible involvement of the Department of Employment in assisting the Department of Environment with developing training materials.

THE WITNESS: Yes.

MR WILSON: During those first discussions which I’m suggesting to you were at the end of February 2009 did Ms McEwan inform you of some correspondence she had received from EE-Oz? Do you know what EE-Oz is?

THE WITNESS: No.

MR WILSON: Not aware of that group.

THE WITNESS: No.

MR WILSON: Well, come back to my question. Did Ms McEwan inform you that concerns had been expressed by EE-Oz?

THE WITNESS: I don’t recall Ms McEwan raising concerns about EE-Oz with me.

MR WILSON: And the concerns were about electrical hazards. Do you recall during your first or early meetings with Ms McEwan her raising with you the topic of electrical hazards? Do you recall that subject being raised?

THE WITNESS: Sorry. Can you repeat the question.


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MR WILSON: That during your first or early discussions with Ms McEwan that she, effectively, passed on to you some information she had about electrical hazards associated with the HIP.

THE WITNESS: I don’t recall those early discussions, but I’m not saying they didn’t happen. I just don’t have a document that shows that they did happen.

MR WILSON: Now, if she pass on those concerns, what would you have done about it? Would you have made a note, put it in a file? What would you have done?

THE WITNESS: Well, those concerns were taken seriously. We were gathering information from a range of sources, including from Industry and from other agencies, and we were feeding that information into the project design, program design and reporting them up the chain.

MR WILSON: Yes. So is the answer to my question, “I would have made a note of it”, or, “I would have done something with that information”?

THE WITNESS: Well, we would have recorded it, made sure that it was made known to the decision-makers at the time as we did with other information that we were receiving from other sources.

MR WILSON: As you would expect that Ms Riordan did with the email she received from Mr Ruz.

THE WITNESS: Yes.

MR WILSON: So if that information had been provided to you – I’m just trying to get a handle on it – would you have put it in an email to your superiors or made a file not? What would you have done?

THE WITNESS: It could have been a range of ways. It could have been in an email. It could have been in the context of providing information to the Project Control Group, or it could have been given in meetings that we had within our team.

MR WILSON: Now, I digressed from the questions I was asking you about becoming aware of risk of injury to installers. Do you recall attending a meeting or a workshop on 23 March 2009 facilitated by a lady named Margaret Coaldrake?

THE WITNESS: I recall attending meetings with Margaret Coaldrake, but I don’t recall what I was doing on 23 March 2009.

MR WILSON: Do you recall going to a risk identification workshop where a number of officers of the department, facilitated by Ms Coaldrake, identified risks that they thought may arise from the HIP?


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THE WITNESS: I have seen a document that shows that I was on an attendance list for a meeting where we initiated a risk project with Margaret Coaldrake, and I don’t have specific recollection of that meeting, but I’m willing to accept that I was there because I was on the attendance list.

MR WILSON: Now, can I bring up MIN.002.001.2469, please. Now, can we go to the – sorry, Commissioner, this is the one that Mr Dreyfus had trouble with yesterday. Just before we go to that, can I bring up MIN.002.001.2407. Now, this is what is described as the raw outcomes of the workshop, that is, the risks that are identified by the people there, and if we just drop down towards the bottom of the first page, do you recall – I’m not saying this was you – but one of your colleagues raising that there was a risk of there being house fires? Do you recall that as being a risk identified? See the second-last dot point.

THE WITNESS: I can see it, yes.

MR WILSON: Do you recall that being raised as a risk at the workshop?

THE WITNESS: No, because I don’t have specific recollection of the meeting.

MR WILSON: Right. Well, I’m going to suggest to you that at that meeting it was specifically raised as a risk. If we go down to the middle of the next page. See the heading starting Shonky Quality Installations? Those five dot points I’m suggesting to you were raised at that meeting.

THE WITNESS: I’m willing to accept they were if they’re in the record of the meeting.

MR WILSON: And that, if not beforehand, you were then aware that the risk of installer injury was actually expressed as a risk of this program.

THE WITNESS: Sorry. What’s the question?

MR WILSON: I’m suggesting to you that at the meeting on 23 March, if not beforehand, you became aware that the risk of injuries to installers was expressed as being a risk attendant on this program.

THE WITNESS: I’m willing to accept that. It’s in the record of that meeting, yes.

MR WILSON: And are you aware that Ms Coaldrake then used that information, effectively, to present – to design a risk register?

THE WITNESS: I’m not sure exactly what the process was for Margaret Coaldrake’s work following this meeting, but I do remember that a document or a table that had various risks was produced and that that was provided to the project control group.


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MR WILSON: Well, before it was provided to the project control group it was circulated within the department, wasn’t it?

THE WITNESS: I don’t know if it was or not.

MR WILSON: If we have a look at document MIN.002.001.2110, please. Was Ms Marconi working in the same team as you?

THE WITNESS: Yes.

MR WILSON: And on 26 March, in the morning, I suggest that Ms Coaldrake’s assistant sent Ms Marconi the risk identification workshop outcomes adjusted by Ms Coaldrake. And if we go to MIN.002.001.2111, please, including this document. I’m suggesting to you that if they were sent to Ms Marconi, she would then distribute them to the members of her team.

THE WITNESS: I don’t know what Ms Marconi did after she received them, but our practice at the time was to share information.

MR WILSON: Yes. Sharing information as to provide copies to you?

THE WITNESS: I don’t know whether Ms Marconi provided me a copy of this document.

MR WILSON: Okay. Well, I’m suggesting that she did. We scroll down to box 11, please. And you will see that – if you just take it so we can see both the bottom of one page and the top of the next page. That – you see the third dash point or the fourth dash point, “installer injury”, is in the document as adjusted by Ms Coaldrake?

THE WITNESS: I can see the words installer injury written there, yes.

MR WILSON: Okay. Then can I take you to MIN.002.001.0117, please. This is from Ms Coaldrake back to – from Ms Marconi back to Ms Coaldrake, you see? And if you read that email to yourself.

THE WITNESS: Okay.

MR WILSON: Were the directors at the relevant time those four people identified in the CC line of the email?

THE WITNESS: Sorry, what’s the question?

MR WILSON: Were the directors at that time the four people identified in the CC line of the email?

THE WITNESS: What do you mean by the directors?


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MR WILSON: Well, you see that the first line of the email says, “Containing the directors’ input.”

THE WITNESS: I mean, three of those people I know are EL2 level officers, which are also known as directors. I don’t know who Gary Davis.

MR WILSON: Okay. Well, three of them are directors.

THE WITNESS: Well, I don’t know who Gary Davis is.

MR WILSON: Three of them are directors.

THE WITNESS: The other three are EL2 officers, yes.

MR WILSON: They’re directors.

THE WITNESS: Yes.

MR WILSON: And if we go to MIN.002.001.0119, this is the document that was attached and you would have seen from the email that the edits were in red font. Accept from me, if you will, that “installer injury” does not appear in that document. So the sequence is Ms Coaldrake sends a document which has “installer injury” in it; Ms Marconi sends back a document amended containing “directors’ input”, which does not have “installer injury in it”. Was there any discussions within the department of which you were part which resolved to take out “installer injury”?

THE WITNESS: No, there was not.

MR WILSON: Of which you were party?

THE WITNESS: I don’t recall that.

MR WILSON: Do you recall any discussion at or about that time as to whether or not the risk of injury to installers was a risk to the Commonwealth?

THE WITNESS: No.

MR WILSON: Thank you. And do you recall at that – from about 27 March onwards, having any further discussions with officers in your department or at the project control group meetings as to whether or not the risk of injury to installers should be included as a risk to the Commonwealth?

THE WITNESS: I don’t recall the whole – the concept of a risk to the Commonwealth being discussed.


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MR WILSON: Let me put it another way: that the risk of injury to installers was something that the Commonwealth should address by some sort of action to mitigate that risk?

THE WITNESS: I recall that the risk of negative safety outcomes was considered in – at that time.

MR WILSON: What’s “that time”? 27 March?

THE WITNESS: During the early part of the implementation, not soon after the government announced the program had commenced on 3 February 2009.

MR WILSON: Yes. So negative outcomes to installers was considered?

THE WITNESS: Yes.

MR WILSON: Yes.

THE WITNESS: And we took that seriously. And we were concerned and I was personally concerned.

MR WILSON: And what did you do about making sure that it was addressed?

THE WITNESS: Well, my role was in the program guidelines and as part of the program guidelines we looked at requirements that the installers would need in terms of their capability to implement the program. And we were concerned that some installers may not comply with the guidelines. We were also concerned that some installers may not be able or may not have the capability to comply with the guidelines.

MR WILSON: Let’s have a look at something you’ve just said. When you say “we”, are you referring to a group of which you are part?

THE WITNESS: The HIP team.

MR WILSON: Perhaps focus on your behaviour or your contribution. You were concerned that some installers were not – would not be capable of doing the work. What inquiries did you make to ascertain what was required to install different types of ceiling insulation?

THE WITNESS: Well, there are some documents that relate to a technical meeting that occurred on 3 April 2009.

MR WILSON: I’m going to come to that.

THE WITNESS: And that outlines one of the things that I did personally - - -


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MR WILSON: Yes.

THE WITNESS: - - - which was to seek information from people who would be knowledgeable about the installation of ceiling insulation and to bring those people together at a meeting in Canberra.

MR WILSON: That – we’re going to come on the meeting on 3 February, I assure you.

THE WITNESS: So that was one of the things I did.

MR WILSON: Did you do anything else?

THE WITNESS: Well, in designing the program guidelines we looked to gather information from various sources, including – such as this 3 April meeting.

MR WILSON: What were the other sources?

THE WITNESS: Industry and other agencies, like the Building Codes Board and the Department of Education, hence my discussions with Melissa McEwan.

MR WILSON: Did you consult Safe Work Australia?

THE WITNESS: We did conduct consultations with state occupational health and safety organisations as well as state - - -

MR WILSON: Just stop there. I will come back to that.

THE WITNESS: I don’t recall.

MR WILSON: Are you aware that Safe Work Australia is a federal body?

THE WITNESS: We consulted with Safe Work Australia.

MR WILSON: A federal body, yes?

THE WITNESS: I recall that Safe Work Australia came up during our consideration of who we needed to talk to.

MR WILSON: You consulted with them?

THE WITNESS: But I don’t recall if we or when we consulted with them directly.

MR WILSON: But you recall consulting with them?


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THE WITNESS: No. I said I don’t recall if and when we consulted with them.

MR WILSON: I thought you said expressly before we consulted them.

THE WITNESS: No, I said that they came up in the consideration of who we should consult with, but I don’t recall if we did or when we did.

MR WILSON: If you did, you would have made a note of your discussions with them.

THE WITNESS: Yes.

MR WILSON: And you would expect such note to be kept in the departmental files.

THE WITNESS: Yes.

MR WILSON: Thank you. Now, just coming back to your comment – or your evidence – that there was an issue about whether certain people would be capable of doing the work as insulation installers. When did that arise?

THE WITNESS: What issue, sorry?

MR WILSON: Whether certain people would be capable of installing insulation.

THE WITNESS: During the course of conducting the risk assessment.

MR WILSON: And what was the issue that arose, that is, would people have to be of a certain height to be able to get into roof spaces, or have certain qualifications? What was the issue that arose?

THE WITNESS: Qualifications was one of the issues as well as whether they had the correct training.

MR WILSON: And did you form a view as to what training was the correct training/

THE WITNESS: We – we did do work to establish what the training should be or could be to give some level of confidence that people who had have done that training would be – would have the skills necessary to do the work, yes.

MR WILSON: Now, coming back, then, to a comment you made about talking to the States and Territories, is your evidence that there were meetings with the States and Territories about workplace health and safety issues?

THE WITNESS: Yes.


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MR WILSON: Now, do you recall whether they were in person meetings or telephone hook-ups or video conferences?

THE WITNESS: I don’t recall the specifics of when and where the meetings occurred.

MR WILSON: On a workplace health and safety topic, do you recall who the representatives of the States were?

THE WITNESS: I recall having discussions and interactions, but I don’t recall the names of the people.

MR WILSON: Not the names but, for example, in Queensland, there’s an organisation or a section known as the Electrical Safety Office. It might be called something else in other States and Territories. Did people identify where they were from, within each State or Territory?

THE WITNESS: Yes, they would have done.

MR WILSON: And were those – were those meetings minuted?

THE WITNESS: If they occurred, they would have been minuted, yes.

MR WILSON: And, outside of those formal meetings, was there also any interaction between you or, to your knowledge, other officers in your department with people at the State and Territory level?

THE WITNESS: Yes.

MR WILSON: You?

THE WITNESS: Yes.

MR WILSON: And what form did that interaction take?

THE WITNESS: There were phone calls - - -

MR WILSON: Yes.

THE WITNESS: - - - emails.

MR WILSON: And what would prompt you – I’m sorry. I should ask was the interaction mainly from you to the States or was it also the States would contact the Commonwealth and provide it with information?

THE WITNESS: I recall receiving phone calls and emails from people in the States and Territories, yes.


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MR WILSON: That is, not prompted by a request first by you, but rather generating from them.

THE WITNESS: Well, I would need to look at the specifics to be – to answer that question.

MR WILSON: But you recall there being interaction between you and people at the State and Territory level.

THE WITNESS: Yes.

MR WILSON: What sort of issues would you be discussing with them?

THE WITNESS: Issues of the program.

MR WILSON: Can you be any more specific than that?

THE WITNESS: The interaction between the program and the responsibilities of the States and Territories.

MR WILSON: Well, can you be any more specific than that?

THE WITNESS: I would need to see the documents that were produced at the time, to be more specific.

MR WILSON: In the absence of documents, is it your evidence that you have no recollection?

THE WITNESS: I – yes.

MR WILSON: Okay. Can I go back to your statement.

COMMISSIONER: In the absence of documents is it your evidence the meetings didn’t take place?

THE WITNESS: Sorry. Which meetings, Commissioner?

COMMISSIONER: The ones you were just asked about by Mr Wilson, meetings between states and territories. I mean, I’m not sure if Mr Wilson has any documents in relation to them, but one would expect such meetings to be minuted, and if the minutes aren’t there, does that mean the meetings probably didn’t take place? I say that because you seem to suggest that if the meetings did take place, you can’t remember anything about them.

THE WITNESS: If there was a meeting that took place, our practice was to take minutes. There were also emails that would have preceded and followed the meeting


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in terms of inviting people to come, and so if the meetings took place, there would be documents, and I would need to see those documents in order to answer those questions.

MR WILSON: There’s certainly minutes of what I call the formal meetings, that is, meetings where everyone is present and you have a discussion. I will show you those in the morning, but I was also asking you about one-on-one conversations, and I think you accepted that you had such discussions.

THE WITNESS: Yes, I did.

MR WILSON: If you had such a discussion, would you have recorded it in some way?

THE WITNESS: Yes, I would have.

MR WILSON: And you recall that there were such discussions, but is it fair to say that you don’t recall the subject matter of the discussion without seeing documents?

THE WITNESS: Well, if there were discussions and information that was passed on was significant, then I would have passed that to my superiors, so there would be documents.

MR WILSON: I understand that. You say there would be documents, but what I’m asking you then is about the substance of those conversations, and as I understood your evidence it was you have no recollection without seeing the documents.

THE WITNESS: Yes.

MR WILSON: Is that right?

THE WITNESS: Yes.

MR WILSON: Sorry, Commissioner. Have you finished your – could I go, then, to paragraph 16 of your statement. Now, the commencement of the rebates was, effectively, from the announcement of the program, wasn’t it, on 3 February 2009?


MR WILSON: You say over the next several months the Department of Environment people worked with Department of Education, Employment and Workplace Relations people about specific training. Did you take part in that work?


MR WILSON: Who else, to your knowledge, on behalf of the Department of Environment participated in that work?


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THE WITNESS: Other members of the HIP team.

MR WILSON: Yes. Who?

THE WITNESS: Well, Jane Spence has been on some of the emails. Other people were copied into emails that pertain to those – that work at the time.

MR WILSON: So the person you can remember is Jane Spence. Anyone else?

THE WITNESS: Well, Aaron Hughes was involved in it.

MR WILSON: Yes.

THE WITNESS: But I would need to refer to the other emails to see who else was involved.

MR WILSON: Do you recall the identity of any person within the Department of Education, Employment and Workplace Relations who worked with your department about the training?

THE WITNESS: Melissa McEwan.

MR WILSON: Yes. Anyone else?

THE WITNESS: No.

MR WILSON: Do you recall a gentleman named Martin Paul?

THE WITNESS: No.

MR WILSON: And who on behalf of the Construction and Property Services Industry Skills Council worked with the department about training?

THE WITNESS: Kristen Sydney.

MR WILSON: Anyone else?

THE WITNESS: I did get a letter from the CEO at one point.

MR WILSON: Is that Mr Ross?

THE WITNESS: On 7 May from Mr Ross.

MR WILSON: Yes. But the people that you primarily dealt with were, on the one hand, Ms McEwan from the Department of Education and Ms Sydney from the Skills Council.


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THE WITNESS: Correct.

MR WILSON: Now, can you just describe to the Commissioner what that work was. Did you have regular meetings? Did you have seminars? Did you have phone calls, send emails? How did you work this group work together?

THE WITNESS: Well, the work was around commissioning this Industry Skills Council to produce a set of – a comprehensive set of training that the installers could use. So my understanding was that we worked with the Education Department, firstly, to identify what the minimum standards might be for training and then we took their advice in relation to what would be necessary to develop such a training package, and it was at that point that the CPSIC was identified as the body that would be able to assist with that. And from there, they undertook work to identify what was required for the department and – and they provided various information and proposals to us which we then drew upon and used as part of implementing the program.

MR WILSON: So do I understand from that answer that you first engaged with the Department of Employment and it was them who identified the Skills Council as being the appropriate person for the Department of Environment to go to for assistance?


MR WILSON: And you attach at exhibit C to your affidavit AGS.002.008.1256, a letter to you from Ms Sydney of 21 April 2009 attaching a proposal.

THE WITNESS: Yes, I remember getting the proposal.

MR WILSON: And this was a proposal for the CPSISC to do some work for the Department of Environment. Is that right?

THE WITNESS: I’m not sure how they were contracted. I would need to see the – the contract that engaged the CPSISC because I don’t - - -

MR WILSON: Just have it - - -

THE WITNESS: - - - I don’t recall, for example, who – who had commissioned them to do this work, whether it was us or DEWHA.

MR WILSON: Well, the proposal has been sent to you.


MR WILSON: Does that not rather suggest that you asked them to do that?

THE WITNESS: Yes, but I haven’t seen the contract.


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MR WILSON: In the absence of seeing that document, you’re not prepared to accept that the arrangement was between the Department of Environment and the CPSISC?

THE WITNESS: No.

MR WILSON: Thank you. Can we go back to your statement and to paragraph 16 still. What work was the Department of Education, Employment and Workplace doing?

THE WITNESS: They were assisting us to identify the training and minimum standards that would be required for the installers.

MR WILSON: That is, are they doing anything other than pointing out the CPSISC organisation? Were they doing any work themselves, to your knowledge?

THE WITNESS: They were doing work and Melissa McEwan did come to meetings, including of the project control group.

MR WILSON: And what work were they doing?

THE WITNESS: Well, they were assisting us with the training and the development of the minimum standards.

MR WILSON: Yes, I understand. What were they doing?

THE WITNESS: Well, I would need to see further documents - - -

MR WILSON: You need to see some documents.

THE WITNESS: - - - to know exactly what they were doing.

MR WILSON: Yes. So you have no memory of that?

THE WITNESS: No.

MR WILSON: What work they were doing.

THE WITNESS: No.

MR WILSON: Can I take you then to paragraph 21. What work did you do – or, to your knowledge, did other members of the department do to ascertain what the requirements were in each state or territory for people working in the insulation industry?


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THE WITNESS: There was an email that I sent to Melissa McEwan that asked for advice about the existing information. I also did my own research, including via the internet, to attempt to identify existing training packages that were out there.

MR WILSON: Did you come to learn as a result of that research that the only state that required people to be licensed to install insulation was South Australia?

THE WITNESS: I don’t recall that South Australia had a issue, but I do recall that there was an unevenness in what was required in each of the states and territories and that there wasn’t a national and comprehensive training package that we could require them all to do.

MR WILSON: Well, is it in fact this – isn’t this in fact the case: that each state and territory had a basic OH& S qualification? In Queensland, called the white card. It might have been called a blue card somewhere else.

THE WITNESS: I recall that coming up, yes.

MR WILSON: And the requirements for that varied between states and territories?

THE WITNESS: I don’t recall the different requirements in states and territories.

MR WILSON: But apart from South Australia, no state or territory required any additional qualification for a person to set up business and install ceiling insulation?

THE WITNESS: I don’t recall the exact requirements of the states and territories at the time. I recall that there was an unevenness between the states and territories and there wasn’t an existing training package that we could pick up and require them all to have complied with.

MR WILSON: Did you discover as part of your research that there was a program in Victoria that provided rebates for households for home efficient – home energy efficiency measures?

THE WITNESS: I was aware of that. Yes.

MR WILSON: Did you make any contact with Sustainability Victoria - - -


MR WILSON: - - - to ascertain what their training program was?


MR WILSON: Did you become aware as a result of your research that there was a program in New South Wales that provided rebates to householders?


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THE WITNESS: No.

MR WILSON: So does it follow that you would not have made any inquiries to determine what their training programs were?

THE WITNESS: Well, the inquiries that we made – no, I didn’t make any inquiries to New South Wales. And the approach was to work with the Department of Education, who were the experts on how you would go about identifying this.

MR WILSON: I understand you said that, but you said you also did your own research.

THE WITNESS: Yes.

MR WILSON: I’m just seeing what you did.

THE WITNESS: Yes.

MR WILSON: If you didn’t do anything, just say so.

THE WITNESS: Okay.

MR WILSON: Did you make any inquiries to determine whether there was any program in New Zealand?

THE WITNESS: No.

MR WILSON: Now, in paragraph 21 of your statement, which I was taking you to, you say that you, together with other members of the team, were aware that addressing concerns would be challenging. Do you see that?

THE WITNESS: Yes.

MR WILSON: What did you mean by the word “challenging”?

THE WITNESS: Challenging means that it would be difficult to meet the government’s objectives as well as control risks.

MR WILSON: What was the government’s objective? Was it simply making sure the program started on 1 July?

THE WITNESS: From my understanding, the government’s objectives were those that were outlined in the economic stimulus - - -

MR WILSON: Yes.


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THE WITNESS: - - - plan. And that was about conducting programs that would – that would support employment and stimulate the economy in the period of the global financial crisis.

MR WILSON: And how did that conflict or associate from any training aspects of the program? Are this – are the two necessarily inconsistent?

THE WITNESS: Well, they are a bit inconsistent, yes, because the program on the one hand had a requirement for rapid delivery and a requirement for as greater participation as possible, so that it could have the best chance of stimulating the economy.

MR WILSON: Yes?

THE WITNESS: And on the other hand, we were concerned that there was a lack of capability and trained installers in the industry to deliver the program at a speed and a scale that the government required.

MR WILSON: Now, can I take you then to annexure D to your statement, which is CPS.002.001.0179, please. This is an email from you to Ms McEwan and Ms Sidney, the two ladies that you’ve previously identified?

THE WITNESS: Yes.

MR WILSON: The email speaks for itself, but do I correctly summarise it as saying that as at 23 April your view was that to work as an installer, that is actually get up into the ceiling and do the work, you had to have an OH&S card and one of items 2, 3 and 4?

THE WITNESS: Well, it wasn’t my view, no. It was an email that I sent that was looking to develop the minimum requirements, so it wasn’t my view.

MR WILSON: Well, did you share that view with others or did you disagree with this view?

THE WITNESS: Well, I put this information to others, including the Department of Education, to seek their expert advice.

MR WILSON: Yes. Yes. Well, you wouldn’t be wasting their time if you didn’t agree with this view, would you?

THE WITNESS: No. I wouldn’t have been asking them if I had a firm view myself. I would have been – you know, we weren’t the experts on this so the idea was to gather information from people who could provide relevant expertise.

MR WILSON: How long had you spent working on this minimum training standards? I just note that you give them less than 24 hours to respond?


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THE WITNESS: We did not have a lot of time to develop this and I can’t recall exactly how long but you can see that I sent this relatively late in the evening. And, as you say, it didn’t give them a lot of time to respond and we were under pressure to deliver that.

MR WILSON: My question was how long had you spend devising these minimum training standards.


MR WILSON: Had you done that or had somebody else in your department done that?

THE WITNESS: There were a number of people involved in it, but I sent this email.

MR WILSON: Who? Were those people subordinate to you, at the same level as you or senior to you?

THE WITNESS: All of the above.

MR WILSON: Were they the people were CC’d into the email?

THE WITNESS: Yes. All those people would have been involved.

MR WILSON: In drafting the minimum training standards?

THE WITNESS: Yes.

MR WILSON: And then do you agree with my characterisation that the minimum training standards suggestion that’s sent to Ms McEwan and Ms Sydney says:

To do work under the program, that is be an installer that gets into the roof, you have to have an OH&S card, white card in Queensland, and one of items 2, 3 or 4.

THE WITNESS: Sorry, what’s the question?

MR WILSON: Was it the view expressed in this email which you sent on 23 April that to be allowed to work as an installer under the program, you had to have an OH&S card and one of the competencies in items 2, 3 and 4?

THE WITNESS: It wasn’t a view that was expressed, as much as an email that contained information that we were seeking advice on. So this was not an official or public document at this stage.


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MR WILSON: I understand all of that but this is being sent to Melissa McEwan and Kristen Sydney for their input, isn’t it?

THE WITNESS: Yes.

MR WILSON: And this is perhaps a working draft?

THE WITNESS: Yes.

MR WILSON: And all I’m asking you is whether it’s a correct characterisation of the working draft.

THE WITNESS: Yes.

MR WILSON: What I outlined to you? Do you want me to repeat it all again?

THE WITNESS: Yes. It’s a correct characterisation of the working draft but it was not my view.

MR WILSON: And did your view differ from that?

THE WITNESS: Well, my view was that I had concerns around the program.

MR WILSON: And what concerns were they?

THE WITNESS: That the minimum requirements for installers may not be enough to ensure that the risks were adequately controlled.

MR WILSON: Now, that’s even if they have one of two, three and four as well as a white card. You still held that concern?


MR WILSON: And what was your concern?

THE WITNESS: My concern was that we were made aware of a range of risks and that these minimum standards may not control them.

MR WILSON: Did you express that concern to anyone?

THE WITNESS: Yes.

MR WILSON: Who to?

THE WITNESS: To other people in the HIP team.

MR WILSON: Can you identify any of them by name?


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THE WITNESS: Well, the people who were working in the HIP team at the time including my close colleagues.

MR WILSON: Who were they?

THE WITNESS: Well, it’s in my statement, the people who were in the HIP team at the time.

MR WILSON: Yes. But you are your close colleagues?

THE WITNESS: Well, Mr Keefe.

MR WILSON: And did you express to him that you had that concern?

THE WITNESS: Yes.

MR WILSON: And what was his response?

THE WITNESS: He took them seriously.

MR WILSON: What was his response?

THE WITNESS: He took the concerns seriously.

THE WITNESS: What was his response?

THE WITNESS: That he was concerned as well.

MR WILSON: Thank you. Did you share your concern with anyone else apart from Mr Keefe?

THE WITNESS: Ms – Ms Riordan, Mr Hoitink, Mr Hughes.

MR WILSON: Let’s deal with them. Did Ms Riordan respond?

THE WITNESS: They – they all responded in the same way as Mr Keefe, that they were concerned.

MR WILSON: So all four of those people you’ve identified held or shared the same concern?

THE WITNESS: Yes.

MR WILSON: What did you – when I say “you”, I mean the collective – do about it?


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THE WITNESS: Well, we developed the program guidelines in a way that, had installer complied with the guidelines, then that would have given some level of assurance of quality and safety.

COMMISSIONER: Why were you concerned about what was proposed in this email here? I mean, it quite a – arguably, quite a thorough preparation for installing. You’ve got to be a builder or a licensed electrician or a carpenter or a plumber. You’ve got to have done a training course of some kind and you’ve got to have experience. Each of those isn’t a bad qualification. What was your concern about those qualifications?

THE WITNESS: My concern was that there were these risks that couldn’t be eliminated from the program, risk that could occur, and that those risks would be likely to become more significant as the scale and the pace of the program increased.

MR WILSON: Are we referring there to risks to houses, risk to installers themselves, risks to householders? What was your concern? You said there were risks that couldn’t be eliminated. What were the risks that you were concerned would happen if the program rolled out?

THE WITNESS: Well, perhaps I could go to the 3 April document.

MR WILSON: Okay. Well, let’s bring that up. I can bring it up on the screen for you. AGS.002.014.1432 please. This is the technical workshop. Is this the one you’re referring to?

THE WITNESS: Yes.

MR WILSON: And are you – just if we can go to attached B, first, which is probably the last page. And you will see that you’re noted as being there. You see that on the screen?

THE WITNESS: That’s right, yes.

MR WILSON: If we go to the start, what do you want to refer us to in there?

THE WITNESS: Well, you can see that in the bullets in the first session, there were issues of safety that were significant.

MR WILSON: Yes. Now, where it says “workshop participants”, there were people there from a range of backgrounds. There were government people, industry people, experts. Do you recall who was leading the charge or leading the discussion about that first dot point?

THE WITNESS: No. And this document isn’t specific to who said what.

MR WILSON: No. That’s why I’m asking you.


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THE WITNESS: So no.

MR WILSON: Do you recall whether anyone was expressing that view more strongly than others?


MR WILSON: Or is it your evidence that everyone that attended that meeting was of that view?

THE WITNESS: I don’t think I could say that everyone that attended the meeting was of the view that – was in agreement with all of these bullets. And we didn’t go back to the meeting attendants – attendants and ask them to approve the minutes.

MR WILSON: And you said you wanted to refer to this document to answer my question, which was what was the risk that you were worried about. Is it the risk of death or serious injury?

THE WITNESS: That’s one of them, yes.

MR WILSON: Any others that you would like to refer to?

THE WITNESS: One of the bullets says that training emerged as an area of attention.

MR WILSON: Yes. Yes, near the black smudge to the left. There we have it. It has been highlighted. Now, who were the working group? There was a training working group, wasn’t there, as well as a technical working group and a remote areas delivery working group. Do you recall that?

THE WITNESS: I don’t recall a training working group. I remember meetings that dealt with training.

MR WILSON: Yes. You don’t recall Mr Keefe devising three teams, as it were?

THE WITNESS: I recall attempts to do that, yes.

MR WILSON: You were in the technical team, weren’t you? In fact, probably in charge of the technical team.

THE WITNESS: I recall attempts to set up the structure that way, but in reality, it was more fluid than that.

MR WILSON: Right. Okay. But do you accept that you were principally in the technical area?


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THE WITNESS: Well, we were doing the program guidelines, which had a lot of technical aspects.

MR WILSON: Yes.

THE WITNESS: Yes.

MR WILSON: Now, training emerged as an area of attention but was referred off to the working group. What was your understanding of that?

THE WITNESS: My understanding of this is that there were other meetings under way around that time.

MR WILSON: So do we have now two risks identified? One is the risk of death or serious injury, and the second is the risk of, what, inadequate training or - - -

THE WITNESS: Yes.

MR WILSON: - - - imperfect training?

THE WITNESS: Yes.

MR WILSON: Okay. Any others?

THE WITNESS: Well, down the bottom it – it regards – has some information regarding fire.

MR WILSON: Yes.

THE WITNESS: So that was a risk.

MR WILSON: Yes.

THE WITNESS: Insurance.

MR WILSON: Now, when you said in answer to the Commissioner’s question a few minutes ago what was the risk that you were – why were you concerned that that competency requirements weren’t adequate? My note is you said that there were risks that couldn’t be eliminated, particularly as the program rolled out and grooved. Do I correctly understand your evidence to be that at least one of those risks was the risk of death or serious injury to installers?


MR WILSON: Now, having identified that and knowing that that view was shared by other people in your team, how was that addressed? How did you take that forward and say, “This might not be good enough. We need to toughen it up a bit”?


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THE WITNESS: Well, I provided this information to my superiors, and the Project Control Group were considering risks at their weekly meeting, and that group was in charge of making decisions on the program.

MR WILSON: I understand all of that, but where do you say to them, “In making your decision, my view is”, and perhaps Mr Keith could have said, “My view is”, and Mr Hughes could have said, “My view is that this isn’t strong enough. We think it should be stronger.” Where are you giving that information to the decision-maker?

THE WITNESS: They could have said that. Well, I provided this summary to my superior, so that’s what I did.

[5.00 pm]MR WILSON: But you’ve said that you didn’t think it was strong enough, and you shared that concern with Mr Keith and Mr Hughes. They were superiors, weren’t they?

THE WITNESS: Yes.

MR WILSON: And they shared your concern.

THE WITNESS: I believe so, yes.

MR WILSON: Well, they told you that they shared your concern, didn’t they? You said that Mr Keith at least did.

THE WITNESS: I believe that they both shared my concerns, yes.

MR WILSON: So providing this document to them is really doing nothing, is it, because they don’t share – they share your concern, but it’s not good enough.

THE WITNESS: What’s the question you’re asking?

MR WILSON: What did you do to advance that concern so that it was taken into account at a higher level?

THE WITNESS: Well, I did give it to a higher level, and it was up to a higher level to make a decision on the program.

MR WILSON: Where do we see in your email to Ms McEwan and Ms Sydney that you have a concern that this isn’t strong enough to protect people from the risk of death or serious injury?

THE WITNESS: It wasn’t in that email.

MR WILSON: Did you discuss that with Ms McEwan or Ms Sydney?

THE WITNESS: I don’t recall that, no.


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MR WILSON: Is that a convenient time, Commissioner?

COMMISSIONER: Yes. 9.30 tomorrow. Well, just one thing. I’m just a little bit concerned about this issue of documentation. I know that the AGS is working and has worked collaboratively as possible with the commission staff, but I am concerned that you say – I think you said this morning it certainly won’t be finished by 30 June, but I’ve got to finish by 30 June, and you mentioned 18,000 documents on a USB. Probably 99 per cent of them are irrelevant, but they’re there, and then I was a little bit – I think you said there were two other areas of significance, and that sort of made me prick up my ears.

What I would like you to do – and, you know, at the counsel to counsel level it has been very practical – is how do we get around the current issue to make sure we have all the relevant documents? I mean, we suspect we have, but, you know, I would like to be sure of that. In the end, I might need an affidavit from one of your solicitors or something saying that we’ve complied with that because I don’t want them turning up six weeks after I provide a report to the Governor-General and say, well, you failed to take into account these documents.


COMMISSIONER: So I think a little bit of discussion will sort it out.

MR O’DONOVAN: Yes. I should say I was – it was probably an inappropriate remark to say that not this financial year.

COMMISSIONER: No. I - - -

MR O’DONOVAN: It was simply recognition that not every version of every document that we can possibly lay our hands on will be produced.

COMMISSIONER: And ..... response to me saying before Christmas, I think, so – yes.

MR O’DONOVAN: But I do want to assure the Commission that we are doing everything to structure our searches so that all of the relevant documents get to the Commission at the earliest possible time, but we will formally notify the Commission of what we’re doing, and I will certainly discuss it with counsel assisting to ensure that we’re getting - - -

COMMISSIONER: Yes, because, I mean, we all know that probably most documents are irrelevant.


COMMISSIONER: There are only some that are relevant. Well, we’ve got to make sure we get the relevant ones. I suspect some discussions might help.


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MR O’DONOVAN: Yes. I understand, Commissioner.

COMMISSIONER: Thanks.

MATTER ADJOURNED at 5.03 pm UNTIL THURSDAY, 10 APRIL 2014


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Index of Witness Events

AVRIL SHIRLEY KENT, CONTINUING P-2386EXAMINATION BY MR WILSON P-2386EXAMINATION BY MR PERRY P-2451EXAMINATION BY MR WINDSOR P-2462EXAMINATION BY MR KEIM P-2467EXAMINATION BY MR BRADLEY P-2475EXAMINATION BY MR BARROW P-2482EXAMINATION BY MR POTTS P-2488EXAMINATION BY MR O'DONOVAN P-2496

THE WITNESS WITHDREW P-2523

AVRIL SHIRLEY KENT, RECALLED P-2526EXAMINATION BY MR PERRY P-2526

THE WITNESS WITHDREW P-2533

WILLIAM KIMBER, SWORN P-2534EXAMINATION-IN-CHIEF BY MR WILSON P-2534

Index of Exhibits and MFIs

9.4.14 P-2574©Commonwealth of Australia

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