The Power of Attorney - from the Reserved Judgements file of StephenJ
This judgement or opinion was produced by reader StephenJ. It was intercepted by my email inbox today. StephenJ sent it to my inbox by authority, Mrs StephenJ.
Sprinkled among the 100,000+ visitors to this website in the past 30 days are Judges, prosecutors, union thugs (including shearer, airline engineer and squire of airline spindoctor) as well as certain "colourful political identities". Thank you very much for your various perspectives.
Here now, stripped of any Judicial regalia is an opinion, a very weighty view, about the observations of McHughJ on the jeopardy young and naive legal operators expose themselves to when conducting illegal operations. Prior to diving in, let us call the young and naive ones to us and remind them, lest they yield to the temptation of the raffishly appealing union bad-boy:-
"When the lawyer goes beyond advice and draws documents for the purpose of enabling a client to achieve an objective, it is, I think, almost impossible to contend that the adviser does not aid the commission of any offence which results."
Aiding the Commission of an Offence
Firstly we must establish the offence which is being examined to address the question of
whether it has been aided in such a way that the person “aiding” is to be regarded as also committing the offence.
Some obvious offences may include
1. The creation/use of a false document under S83A of the Victorian Crimes Act.
2.The provision of false information to the WA Corporate Affairs Commissioner in
relation to the incorporation of the AWU WRA.
3.The use of the AWU WRA to enable the diversion of moneys which would have flowed to
the AWU (stealing or fraud) or the receipt of secret commissions relating to the
“business” of the AWU.
A. The Law
To show Gillard aided in the commission of any particular offence we must show she knew
the plans of the parties to that offence (or should have made enquiries and refrained from doing so) and that her assistance was for the purpose of aiding that plan.
Some active steps must be taken by word or action. An intimation of encouragement or acquiescence sufficient to constitute aiding and abetting may exist where an indication is given that some duty owed to a party affected by the proposed act is not to be performed. Ref Brotherson  SR (NSW) 326.
She will also have aided the commission of an offence if it is a probable consequence of the
It would need to be shown that Gillard contemplated and foresaw that the primary
offenders act was a possible incident of the planned joint enterprise. Chan Wing-Siu v R AC 168.
“Probable” does not mean an event which is more likely than not to occur.
It merely denotes an event that could well happen R v Gush 2 NZLR 92
B. Legal Advice v Aiding
Gillard maintains that she was ignorant of any proposed illegal use to be made of the
Such a stance will provide no defence to offences 1 and 2 and even if accepted would
not provide a defence to 3 if such a result could well have happened given her knowledge of the parties involved and the activities of Unions in general.
In distinguishing her activities from that which would normally be involved in a Solicitor merely providing advice it is important to note;
a) Her personal involvement at the auction at which the Kerr St property was acquired
purportedly with a Power of Attorney which according to the evidence of Blewitt did not at that time exist. Further the actual document produced to effect the conveyance was prepared by her.
b) Her representations about the status of the AWU WRA under WA law and its eligibility to be incorporated which she must have known to be highly dubious.
c) Her stated justification for the existence of the Association (a slush fund) being at odds with the main purpose disclosed in its application and objects and
d) Her duty to her existing client, the AWU, to protect the use of its name.
C. Power of Attorney
Quite apart from questions of whether she herself has made a false instrument through
signing as a witness at a time and date when she apparently was not present, it is obvious that she must have aided Blewitt in the making of that false instrument.
She was present at an auction where she must have known that no valid Power of Attorney
existed as she actually prepared the document and Blewitts evidence is that he actually signed it some weeks after the stated date.
Further she has witnessed it when not actually present and obviously at a date other than that which the document bears.
Her assistance was for the purpose of enabling the purchase of a property with a Power of Attorney which in the circumstances could be nothing other than a false instrument.
D. Application for Incorporation
This website has published legal advice on how the WA Commissioner was mislead in this
Obviously it was Blewitt who lodged the application and in the he was aided and counselled
There was a plan to get the Association incorporated.
The parties (and especially Gillard) must have known that there was in fact no such Association with the required number of members and that it was in fact a Trade Union for the purposes of the WA Law.
Her defence is that if the WA Commissioner incorrectly incorporates an Association that is his problem, but this is hardly the issue since manifestly that incorporation has occurred based on misleading information.
The offence of providing misleading information was a key element of the plan to achieve
incorporation and Gillard has obviously aided the commission of that offence.
E The Money Trail
The following relates to the offence of receiving a secret commission although it could just as readily apply to stealing.
The elaborate efforts to obtain incorporation of an Association with the name AWU WRA can only be explained in the context of providing a front for the extraction of funds from employers.
The extraction of those funds in the guise of payments relating to Workplace reform can only have been as a reward for doing or forbearing to do some act in relation to the affairs of the AWU which was the employer of Wilson and Blewitt and the client of Gillard and hence was a principal in relation to each of them under the definitions relevant to the offence of Receipt or solicitation of secret commission by an agent.
To me the name AWU WRA has always been the key.
She had a duty to prevent the unauthorised use of the name AWU.
She had a duty to enquire into why the Association was seeking to use that name,
If appropriate questions were not asked it can only be because Gillard deliberately refrained
from asking them.
It is necessary to show a joint enterprise and what has been agreed as part of that enterprise.
The joint enterprise consisted of putting in place the structures needed to allow Theiss to pay amounts to the benefit of Wilson and pass those amounts off as legitimate expenses relating to Workplace Reform. It also consisted of negotiating these arrangements with Theiss and the invoicing and collection of funds.
An incorporated body bearing the name AWU was necessary for these purposes.
Blewitt has given evidence that Theiss insisted on such an arrangement.
Gillard drafted the rules for the association to be consistent with the objects of promoting workplace reform.
She said she understood that it was actually to be used as the “Bruce Wilson and mates re
election fund”. It was to receive funds from payroll deductions and raffles.
If this was the case why wasn’t the Association named as such.
Her justification is risible.
Therefore her real understanding of the purposes of the fund and what it was to be used for and how it was to acquire funds must have been something else.
Why disguise a re-election fund as an Association for workplace reform bearing the name AWU if there was no knowledge of the proposed source of funds.
In the absence of an explanation for the emphasis on Workplace Reform and the use of the name AWUm the only and obvious reason for the name is that which is consistent with Wilson providing a cover for the extraction of funds from Employers.
Any Solicitor should have asked questions about the proposed source of funds for the association. If she turned a blind eye this is no defence.
Her duty to the AWU required her not to acquiesce in this arrangement let alone actively facilitate it. She therefore aided it.
Further even if the actual extraction of money as a secret commission was not an explicit part of the plan Gillard was a party to, it could never the less be seen as a probable consequence in the sense set out under Point A.
This would cover a situation where the plan that was agreed to did not include the actual intention of receiving moneys as a secret commission (although extraction by some other means may have been considered) but it could be foreseen that a probable consequence of putting in place the Association would be that its fundraising activities would encompass such a result.
In this aspect the knowledge of the “normal” activities engaged in by Union officials that an industrial lawyer would possess would be relevant as far as questions concerning possible outcomes arise.
The comment of McHugh is obviously based on the premise that the Lawyer understands the
objective sought by the client.
In the context of the Offences discussed above it is difficult if not impossible to argue that this was not the case or that any illegality that did occur should not have been recognised as a distinct possibility of the course of conduct engaged in.