ABN 72 110 028 825
Level 22, 179 Turbot Street, Brisbane QLD 4000
PO Box 13038 George St Post Shop, Brisbane QLD 4003
T: 1800 AUSCRIPT (1800 287 274) F: 1300 739 037
E: W: www.auscript.com.au
TRANSCRIPT OF PROCEEDINGS
O/N H-358919
MR I. HANGER AM QC, Commissioner
ROYAL COMMISSION INTO THE
HOME INSULATION PROGRAM
BRISBANE
9.01 AM, FRIDAY, 4 APRIL 2014
Continued from 3.4.14
DAY 15
MR K.N. WILSON QC appears with MR J.R. HORTON as counsel assisting
MR T. HOWE QC appears with MR D. O’DONOVAN for the Commonwealth of Australia
MR R. PERRY QC appears with MR A. ANDERSON for family of Matthew Fuller and Rueben Barnes
MR M. WINDSOR QC appears with MR M. HEATH for Peter Stewart and 72 others
MR T. BRADLEY QC appears with MS A.J. COULTHARD for the State of Queensland
MR S. KEIM QC appears for family of Mitchell Sweeney
MR I. HARVEY appears for Mike Mrdak
MR W.M. POTTS and MR A. HANLON appear for Murray Barnes
MR P. BRIDGMAN appears for Kevin Keefe
MR S. LLOYD SC appears for Robyn Kruk
MS C. HUNTER appears for Jessica Wilson on behalf of family of Marcus Wilson
MR M.T. HICKEY appears for Malcolm Forbes
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.
4.4.14 P-1898
©Commonwealth of Australia
COMMISSIONER: Yes. Isn’t Mr Keim examining?
MR HOWE: [indistinct]
COMMISSIONER: Hey?
MR HOWE: He had finished.
MR WINDSOR: He had finished, I think, Commissioner.
COMMISSIONER: He had finished, so
MR DIEHM: Thank you, Commissioner.
<MALCOLM ANDREW FORBES, CALLED [9.01 am]
<EXAMINATION BY MR BARROW
MR BARROW: Mr Forbes, I’m appearing for the sister of Marcus Wilson, he was the young man who died in Western Sydney from hyperthermia, and I only wanted to ask you some questions about, really, just the issue of supervision, because that was, I think, a fundamental problem with his circumstances. Mr Keefe touched upon, in his evidence: the fact that in July or August, through the interim compliance regime that was in place, that there reports coming back that there were registered installers who simply could not have been on site, because they were making claims for so many jobs on a particular day that it would be simply impossible. Were you aware of that emerging out of the data that was coming to the department at that stage?
THE WITNESS: I can’t recall specifically, but I think there was a general view emerging that – and I think I referred to it in my statement, our assumption about supervision and supervisors being on site
MR BARROW: Yes.
THE WITNESS: was perhaps not as robust as we thought it was.
MR BARROW: But in terms of actual evidence coming back, or information coming back to suggest that this was actually a practical problem that was occurring. Was it apparent to you at that stage?
THE WITNESS: Well – well, it would have to have been reported through the PCG from the compliance committee, because the compliance committee was the one dealing with the information coming through Medicare and analysing the different
4.4.14 P-1899 M.A. FORBES XN
©Commonwealth of Australia MR BARROW
claims. And it would have to be recorded in the PCG minutes, but I can’t recall a specific time.
MR BARROW: You don’t recall? Or do you recall discussing the matter with Mr Keefe?
THE WITNESS: Well, I certainly – well, I recall how the issue of supervision was not as we were expecting it to be.
MR BARROW: Yes.
THE WITNESS: That we were expecting supervisors to be on site.
MR BARROW: Yes.
THE WITNESS: Now, the sequencing or the timing of that realisation – I’m very unsure of
MR BARROW: Yes. So, would it be fair to say that those concerns may not have emerged until later, when the fatalities began?
THE WITNESS: I think it arose earlier than that, because I think it was in our minds when fires
MR BARROW: Right.
THE WITNESS: first started to come onto the agenda, which is in later August, September, as I recollect.
MR BARROW: If this issue was a practical concern at that stage, was there any consideration given then to the amendment of the guidelines so as to make it absolutely clear that workers without competencies must be supervised on site?
THE WITNESS: There was – I can’t remember the amendments, but there was amendments made in August, and I think it might have been September, and amendments in November, as I recollect, and maybe
MR BARROW: In relation to this question of supervision?
THE WITNESS: Well, in relationship to amendments to the guidelines, now I think the supervision issue arose in one of those, but I can’t recall when.
MR BARROW: See, would it be fair to say that once this issue emerged from the information that’s coming back, that it meant one of two things. One was that registered installers didn’t understand what was required of them. That was one explanation. And the second was that they were simply disregarding the requirements of supervision.
4.4.14 P-1900 M.A. FORBES XN
©Commonwealth of Australia MR BARROW
THE WITNESS: Well I think there was also, as I recollected – I can’t recall all the installer advisories which were all emailed out to installer advisers. I think there was information in those relating to the need for onsite supervision as well. But I can’t recall those, because I wasn’t actively engaged in the drafting of those or the sending out of those.
MR BARROW: Yes. One of the aspects of compliance, as I understood it was, if the opportunity arose, a registered installer could be deregistered. That was one of the mechanisms to enhance quality.
THE WITNESS: Well that was our really only
MR BARROW: Yes.
THE WITNESS: large deterrent at the Commonwealth level.
MR BARROW: Yes. If it was the case at that stage, July, August, that it was becoming apparent that supervision was being – requirements for supervision were being ignored or flouted, is it right to say that at that stage the department’s capacity for enforcement, on its own, was very limited?
THE WITNESS: Because it was limited to deregistration from our register.
MR BARROW: But in terms of – one of the practical problems it would seem, at least to me, is that the model that was in place precluded the department from even knowing on a particular day where installation would be occurring.
THE WITNESS: We were blind to that.
MR BARROW: Yes. And so, even if you had an awareness of this requirement not being met, it would be very difficult to target an operator, because you wouldn’t know on a particular day what that person had been doing anyway. Would that be reasonable?
THE WITNESS: Well I think that’s quire reasonable. As I said, we were blind to
MR BARROW: Yes.
THE WITNESS: the operations on a day-today basis. We only had information come in to us in an aggregated sense from their claims.
MR BARROW: Yes. And even if there had been wholehearted and close engagement with work safety organisations at a state level, that similar problem of being blind to what was occurring on a day-to-day basis would have made it difficult for them, as well, to go to sites and see and inspect sites and say well, you know, where’s the supervisor, etcetera.
4.4.14 P-1901 M.A. FORBES XN
©Commonwealth of Australia MR BARROW
THE WITNESS: Yes. I think that’s fair. Yes.
MR BARROW: All right. Had there been the different model that you had been asked about, the brokerage model, those two problems need not have been so acute; would you agree with that?
THE WITNESS: Again, you are – I’m not sure whether it would be different, but I suspect that those who were responsible in the brokerage model were closer
MR BARROW: Yes.
THE WITNESS: to the onsite activity, and they would be more acutely aware of their responsibilities in terms of the contract with the Commonwealth. So you might be able to make that assumption. But whether, in reality, they were there on day-to-day basis to ensure the supervision was occurring, I’m not sure, because there would be a market motive for them to be having as many installations as possible, just like under the other scheme.
MR BARROW: If, for example, the brokerage model had been adopted and, say, a regional entity was delivering the installation in a particular area, and that regional entity was able to – through its information and through a booking system, for example – know what registered installer was doing, you know, where and when. If that information – if there had been a system in place like that, would that not have allowed the department, and perhaps work safety organisations at a state level, to have had at least the capacity to target operators that there was a question mark about?
THE WITNESS: If there was a system like that in place, and it was feeding to a compliance and audit regime, there could have been site visits to see whether there was supervisors on site.
MR BARROW: Yes.
THE WITNESS: But it’s a hypothetical.
MR BARROW: Well, it didn’t happen. But in terms of a model, it’s not beyond the realms of
THE WITNESS: Well, if there was the systems in place for that. I mean that’s quite a complicated system. But, yes.
MR BARROW: Yes.
THE WITNESS: It’s a potential solution.
MR BARROW: One of the other things that emerged from the inquest into Marcus Wilson’s death was the company that ultimately he was working for – although at a
4.4.14 P-1902 M.A. FORBES XN
©Commonwealth of Australia MR BARROW
very removed level, he was not even a subcontractor – their attitude to training was tokenistic [indistinct]; almost made a mockery of the whole objective of training. There was no way that the department had to ensure that training was actually delivered in a meaningful way, as well.
THE WITNESS: Well, it – [indistinct] was reliant heavily on a compliance and audit regime, so for field inspections, desktop audits of particular officers and of installers and site inspections.
MR BARROW: Yes.
THE WITNESS: So – and as we discussed yesterday, our implementation of the compliance and audit regime was delayed and we only had an interim arrangement in place over the July/August/September period.
MR BARROW: Yes. Yes. Some of the witnesses who have given evidence before you – and Mr Mrdak was one of them, I think – expressed the view that he at least hadn’t anticipated how badly some of the installers would behave in terms of workplace safety. Is that a view that you hold as well: that it wasn’t foreseen?
THE WITNESS: I was very surprised that they didn’t seem to take much responsibility for their employees.
MR BARROW: Yes.
THE WITNESS: Very surprised.
MR BARROW: And this meeting that occurred on 8 May where the decision was made to structure the arrangement so that an unskilled person could do the work provided they were supervised: that decision seems to have been made by the members of the group, the PCG group, but without consultation to people who perhaps might have had some practical knowledge, perhaps some cynicism, about how this might work in reality. For example, there doesn’t seem to have been, at least on the material that I’ve seen, a background to that day when that decision was made that involved consultation with even industry people or unions or state work safety-type organisations. Is that your understanding of that meeting, in terms of lack of consultation?
THE WITNESS: Well, as I recollect, I wasn’t at that meeting. But nonetheless, I’m acutely aware of that decision.
MR BARROW: Yes. Yes.
THE WITNESS: I think it’s probably fair to suggest that with more consultation our level of belief that people would do the right thing may have been a little more cynical.
4.4.14 P-1903 M.A. FORBES XN
©Commonwealth of Australia MR BARROW
MR BARROW: Yes.
THE WITNESS: Our eyes might have been more – broader.
MR BARROW: And is that perhaps a consequence – and I don’t mean this in any disparaging way, but is that perhaps a consequence of a group of fairly high-level public servants removed from the practicalities making decisions about this in Canberra without an understanding of how things might play out?
THE WITNESS: I don’t – well, I don’t think that’s a fair assessment. I think we were seeking expertise and advice from a broad range of players, and that was being fed into a system. And like all systems, there’s a large technical underpinning and information flows up. But as it flows up, I mean some of it gets filtered. But the – the main material, if you like, comes through to the decision-makers. The decision-maker doesn’t necessarily have all underpinning information. There’s the assumption made that a lot of that is integrated into the sort of recommendations which come through. So I think you’re being a little unfair in that assessment.
MR BARROW: Would you make those comments in relation to the 8 May meeting? That’s really all I was focusing on.