Criminal charges against embattled Labor MP Craig Thomson are now unlikely, after a three-year investigation into the Health Services Union was deemed useless as a brief of evidence by the federal public prosecutor.

“The CDPP is not an investigation agency,” said Christopher Craigie, the Commonwealth Director of Public Prosecutions. “It does not have investigative powers and is not able to conduct a criminal investigation. In order for a matter to be assessed as to whether a prosecution should be commenced, a criminal investigation is conducted and a brief of evidence prepared and referred to the CDPP.”

Fair Work Australia yesterday handed over its 1100 page report into misuses of union funds by three ex or current union officials — one of which is expected to be Thomson, national secretary at the HSU from 2002-2007 — and one person who was not a union official. In its report, Fair Work Australia found 181 contraventions of the Workplace Relations Act 1996 and the HSU rules. Of those 181, 105 relate to civil penalty provisions within the act.

But the report wasn’t a brief of evidence and therefore cannot be used as one by the DPP, notes Craigie. “The letter referring the report to the CDPP from Fair Work Australia makes it clear that Fair Work Australia has not conducted a criminal investigation,” he said in a statement. “The letter states that the report does not consider whether any person (or body) may have contravened a provision of the criminal law. The material forwarded is not a brief of evidence.”

Bernardette O’Neill, the general manager of Fair Work Australia who handed over the report yesterday, is standing by her actions. “As general manager I am required to act in accordance with the legislation,” she said.

“I recently sought a comprehensive legal opinion from the Australian Government Solicitor which advised that the ‘appropriate course’ for me in the present circumstances was to refer matters to the Commonwealth Director of Public Prosecutions for action in relation to possible criminal offences. I note the DPP today announced that it would examine the material I have forwarded and consider what further action may need to be taken.”

But not everyone is impressed by the FWA investigations, which has taken years and cost millions of public money. “What a total farce!” declares Michelle Grattan in The Age. She continues:

“Pity the DPP, who yesterday issued a statement making it clear he should not have been landed with this mess but then added he would ‘examine the material forwarded and consider what further action may need to be taken’.

The DPP obviously judged that to do nothing is not a responsible option, given the need for this issue to be dealt with — by someone, somehow.”

Additionally, in a move dubbed “unexpected and radical” by Ean Higgins in The Australian, the ACTU national executive is expected to vote today to suspend the HSU in a bid to keep its name clear.

“The union movement has zero tolerance for corruption . . . or for the misuse of union funds,” declared ACTU secretary Jeff Lawrence.

“We do this because we want to make sure the union is cleaned up and that the laws of the land are enforced.”

The ACTU has not read the FWA investigation. But the move to kick out the HSU is also partly because an internal HSU audit by QC Ian Temby will soon be released, with union sources calling its findings ”explosive” and ”spectacular”, report Phillip Coorey and Kate McClymont in The Sydney Morning Herald.

The audit mainly focuses on recruitment and tender processes and involves current HSU president Michael Williamson — who has been stood aside on full pay since October after revelations that Williamson’s own company provides $1 million worth of IT services to the HSU. Thomson is not believed to be implicated in Temby’s audit.

The Labor government needs to stop supporting the HSU and Thomson, says The Australian‘s editorial:

“Now the ACTU has made the courageous but necessary decision to cut the decadent Health Services Union loose, the Labor Party and Julia Gillard must do the same.

…Yet obduracy is leading Ms Gillard and her once proud party to the worst kind of electoral loss: defeat unaccompanied by dignity.”

But Gillard is currently standing by her troubled MP, calling the ACTU’s decision to suspend the HSU “a matter for the ACTU. “I don’t have anything before me which would cause me to alter from my previous statements of confidence in Mr Thomson,” said Gillard.