Redacted notes trigger blistering rebuke at royal commission

The authority delivering Labor’s Big Build has been given a blistering dressing down for obstructing the work of the royal commission into the state’s construction industry, by delaying the release of requested documents, and releasing them in a heavily redacted form.

Chris Young, KC, counsel assisting the commissioner, warned the Victorian Infrastructure Delivery Authority (VIDA) on Thursday morning not to disrupt the inquiry any further, as he revealed that the authority had submitted “plainly redacted material” that was crucial to the commission’s work, with no explanation of why several pages of material had been blacked out.

Commissioner Chris Kourakis, AC, also castigated the authority, saying “the late provision of this information has disrupted the orderly investigation and the pursuit of lines of investigation”.

The material, when it was eventually submitted in unredacted form, revealed the authority’s concern that any further work stoppages at the Gap Road level crossing removal site would require the project deadline to be extended.

The hearing was previously told this would have delayed the project by many months, due to limited opportunities to shut down a rail line.

Another redacted note, belatedly disclosed, documented the authority’s concerns that the CFMEU was “driving some companies re. Aboriginal employment out of business”.

Young accused the authority of blacking out submitted material that was important to the commission’s inquiries, without providing any justification.

“That was redacted from what was originally provided to the commission. Unexplained,” Young said.

Young tabled two versions of a book of handwritten notes by Evan Tattersall, the former chief executive officer of Rail Projects Victoria (later rebadged as VIDA), which contained entries about the Gap Road level crossing removal project, which is the subject of the current block of hearings.

One version of the notebook was almost entirely blacked out, and Young noted that it was submitted to the commission on November 7, more than two weeks after the commission requested information from VIDA about Gap Road, and just two days before hearings began.

“For the first time on the 7th of November, the existence of handwritten notes of Mr Evan Tattersall were disclosed, despite those notes being caught by earlier notices to produce,” Young said. “Those notes were heavily redacted in an unexplained manner.”

The unredacted notebook was eventually released to the commission on Wednesday, the third day of this week’s hearings. It revealed a handwritten note by Tattersall that said: “Wilko [Rail Projects Victoria chief operating officer Peter Wilkinson] re Gap Road: ‘If don’t work this long weekend will need extension’.”

The authority also disclosed this week “text messages directly concerning events at Gap Road”, which included references to the Premier’s private office.

The text messages were between then-premier Daniel Andrews’ adviser Matthew Toner and Matthew Phelan, who was adviser to Corey Hannett, then-director general of VIDA before subsequently working as chief of staff to Jacinta Allan when she was premier. Those text messages will be exhibited at a later date of the hearings, Young said.

Disgraced ex-CFMEU secretary John Setka called Toner “a good asset to the union” at a delegates’ meeting in March 2024, shortly after he had left the premier’s private office, Young said in his opening comments.

Young said it was “profoundly disappointing” given Premier Ben Carroll’s previous statements about the importance of the commission’s work, “that state entities and senior current and former state officers would only give evidence when compelled and are otherwise content to do nothing”.

“We have repeatedly pointed out, commissioner, this commission has but a short time to complete its work. It has compulsory powers, and those powers are reinforced by sanctions, which do ultimately include imprisonment,” Young said.

“We accept, though, that those sanctions should not readily be called. But it might be expected that agencies of the state would see and understand the significance of the work of this commission and comply with the obligations imposed on them.”

Counsel for VIDA apologised to the commission and said it was not the authority’s intention to delay the commission’s work.

In response to criticisms from the commission earlier this week, Carroll admitted the government’s performance was not good enough and pledged to do “whatever I can” to support the commission.

Asked about the fresh, and more critical, comments from the commission, Carroll on Thursday declined to comment.

“I’m not going to run a commentary on it, except to say there are broad powers,” Carroll said.

What happened at the Gap Road level crossing project on June 6 and 7, 2022, is the focus of this 10-day block of hearings. The Construction, Forestry and Maritime Employees Union shut down the project as it sought to displace rival union, the Australian Workers’ Union, from the site.

Gap Road was the last remaining level-crossing removal project in Victoria that was not under the CFMEU’s control.

John Holland and CPB Contractors, part of an alliance delivering Gap Road, had resisted striking an agreement with the CFMEU, warning the government it would add an estimated $2 million in labour hire costs to the project.

But at a meeting at the CFMEU headquarters on June 7, two managers with John Holland submitted to the union’s demands, including that it hire the union’s preferred labour hire company, B K Labour.

Former senior union official Paul Tzimas, who was at the 2022 meeting, told the hearing on Wednesday that his boss, Joe Myles, suggested he had a direct line to then-transport minister Jacinta Allan, and that John Holland’s co-operation would affect its chances of working on the future Melbourne Airport rail link.

Four senior managers from John Holland and CPB Contractors appeared as witnesses on Thursday.

Craig Nuttall, the managing director of CPB Contractors, told the hearing that the industrial relations environment on major rail projects in Victoria had generally become “more combative and aggressive over the last decade”.

Nuttall attributed the instability to an ongoing turf war between the increasingly dominant CFMEU and the AWU.

“Demarcation has got a little blurry … You’ve got one union trying to step into another union’s patch of work,” he said.

John Holland’s general manager for industrial relations, Trent Smith, told the hearing that the company had “a relatively hostile” relationship with the CFMEU, and had resisted entering into a universal agreement with the union before the events of June 6 and 7, 2022.

The company also recognised the union’s significant political influence in Victoria, which made it more difficult to resist striking a regional enterprise agreement with them, he said.

Young asked Smith if the company’s stated strategy to develop a “productive working relationship” with the union in fact meant “effectively just conceding to the demand of the CFMEU”.

“There were a lot of concessions required,” Smith said.

Hearings continue on Friday.

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