Speaking of blind
Prima Facie case to answer on AWU
TERRY O'CONNOR
December 19, 2012 12:00AM
THERE has been considerable recent media discussion about the 1992 incorporation of the Australian Workers Union Workplace Reform Association Inc and the involvement of Julia Gillard in its incorporation.
In particular there has been conjecture as to whether or not Gillard has committed any offence in her role in the incorporation of the association.
Before discussing that question, it is necessary to establish the facts. While some of the facts surrounding the incorporation are uncertain, there is sufficient on the public record to reach a view on what might be the legal position of those involved.
In 1992 Gillard, then a salaried partner in the law firm Slater & Gordon, advised her partner, one Bruce Wilson, then an AWU official, and another official, Ralph Blewitt, on the incorporation of an association under the Associations Incorporations Act WA.
In 1995 Gillard was interviewed by Slater & Gordon's then senior partner Peter Gordon. It is implicit in what she said in that interview that Wilson and Blewitt, who were senior officers in the AWU, came to her seeking advice on how to deal with funds to be raised by them to pay the cost of their campaign for re-election to their branch executive.
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It would appear that her advice was to incorporate the association, which would open a bank account to hold the funds. In the interview with Gordon, she said that, "thinking behind the forming of the association (was that) it was better to have an incorporated association that was the holder of the account" to avoid disputes between officials as to who was entitled to the funds. Gillard prepared the necessary documents for the incorporation of the association.
Section 4 of the act sets out the limited objects for which an association can be incorporated. If the purpose of the association does not meet the requirements of section 4, incorporation will be refused.
The Corporate Affairs commissioner has a discretion to refuse incorporation in certain other circumstances. For these reasons it is important he is not misled as to the objects of any proposed association.
Section 5 of the act requires that application for incorporation be made on the prescribed form, accompanied by the rules of the association and a certificate verifying that certain requirements of the act have been met.
Gillard drafted the rules of the association. As drafted they set out a number of general objects for the association including things such as securing benefits for and, contributing to the safety and training of, workers. Significantly, as required by schedule 1 of the act paragraph 3(2) of the objects provides "no part of the property or income may be paid or otherwise distributed, directly or indirectly, to members".
In the formal application for incorporation, which was in the name of Blewitt, the main purpose of the association was described as being "development of changes to work to achieve a safe workplace". The application also certified that the association was not formed for the purpose of providing a pecuniary benefit to members.
Importantly, nowhere in either the rules of the association or the application for incorporation is the real purpose of the association set out, namely to raise funds to pay for officials' re-election campaign. Indeed as noted above paragraph 3(2) of the rules expressly prohibits that.
There has been no explanation from those involved as to why the real object or purpose of the association was not set out in the documents. In the absence of such explanation it appears that the proponents may have believed that, if the real object was disclosed the association would not have been incorporated because of subsection 4(2) of the act which prevents the incorporation of an association where the members receive a pecuniary benefit from the activities of the association. Whatever the reason for the failure to disclose the real object, the fact remains it was not disclosed, as required by the act.
The association was duly incorporated.
Section 170 of the Criminal Code WA provides that "any person who, being required under a written law to give information to another person, knowingly gives information to the other person, that is false in a material particular is guilty of a crime and is liable to imprisonment for three years".
Section 43 of the Associations Incorporations Act also makes it an offence for a person to lodge a document with the commissioner which the person knows is false or misleading in any material respect.
In this case the rules lodged did not state the real object of the association. The application, which certified compliance with the act, falsely certified that the association was eligible for incorporation under subsection 4(1e) of the act as an association of more than five members formed for political purposes when in fact it had only two members - Blewitt and Wilson.
Under either of these provisions Blewitt, as the person who made the application for incorporation, in my view could have been charged with knowingly giving false information to the commissioner as he was aware that the objects set out in the rules were not the real objects of the association and that the certification in the formal application was false.
Section 7(b) of the Criminal Code provides that where an offence has been committed, a person who does or omits to do any act for the purpose of enabling or aiding another person to commit an offence, is also guilty of the same offence and is liable to the same punishment as if he or she had committed the offence. A lawyer who advises a client to do something that would constitute an offence would be caught by this provision.
Gillard advised Blewitt on the incorporation of the association and prepared the rules of the association and, following a query from the commissioner, wrote arguing for the incorporation of the association.
The letter has not been disclosed so it is impossible to draw any conclusions about it. Gillard has maintained that she did nothing wrong but has not explained why she says that.
However, without some explanation from her as to what occurred, there is, in my opinion, a prima facie case that she could have been charged along with Blewitt as she drafted the rules of the association for Blewitt knowing that the rules did not disclose the purpose for which the association was being incorporated.
Terry O'Connor QC is a former head of Western Australia's Anti-Corruption Commission.
http://m.theaustralian.com.au/natio...to-answer-on-awu/story-e6frgd0x-1226539989208
