May I thank StephenJ for the many many hours of work he's put into this issue.
It's important that GILLARD and WILSON's lies about her engagement as a lawyer and provider of legal advice on the AWU WRA are exposed.
The more evidence that she's lying the harder it is for her to avoid the charge that she was a participant in the conspiracy.
Two of her big lies are that she thought Ralph was a property investor and that the incorporated WRA was needed to handle team fractures.
That's where the previously hidden Trust Fund she set up for Wilson for the Boulder death benefit funds becomes so significant.
- The attempt to set up the WRA caused more than a few problems.
- It can only be explained by the need to have an incorporated body with the right name covered by a regime that was lax.
2a Theiss needed to be in a situation where if things went wrong they could protest that they thought they were dealing with the AWU for legitimate Union activities.Not too many years before Normie Gallagher had been slotted for secret commissions. Thiess was naturally wary in those circumstances.
- No financial statements for incorporated associations were required to be lodged. Tax Office as a rule uninterested in Incorporated associations as no taxable income generated.
4.Only alternative was a Company. Wouldn’t get the name up. Financial information required in annual return. If no tax return lodged could attract attention of Tax Office.
- If Trust used still needed a Corporate Trustee with the right name. Same problems as point 4.
- If she really wanted to set up an election fund controlled by Wilson she had the perfect example with the Accident fund trust deed.
The arrangement allowed for contributions from potential beneficiaries and gave Wilson complete control.
She could have obtained a shelf company to act as trustee; made Wilson and Blewitt directors and shareholders; executed the Trust deed using the accident fund as an example; and they were off. The Trust itself could last for 80 years (the perpetuity period in WA). That should be long enough for the boys. The rights of the beneficiaries to interfere in any meaningful sense can be handled by appropriate definitions as was the case with the Accident trust deed.
No nasty Corporate Affairs people to deal with; no need to draft objects that obscured the purposes of the vehicle; no need to manufacture the right to a ministerial appeal; no need for the appeal itself.
- The fact that the Accident fund Trust deed was executed around the same time as the Incorporation occurred and she was involved in it shows that she cannot have been unaware that it provided a much simpler solution to her supposed problem of creating an election fund that didn’t disappear on a fracture in the team.
This leads inevitably to the conclusion that her stated reason is a lie.
If there are two scenarios available to explain the motivation behind an action and one of them is demonstrated to be false the alternative must be true.
The alternative is that she fully understood how the WRA was intended to be used and that makes her a party to any crimes that resulted.
And Stephen J has demonstrated for us precisely how easy it would have been to use Gillard's Fatality Fund deed as the template for Wilson's election fund.
Stephen J's proposed Memo to Bruce Wilson from GILLARD
As you are well aware we have recently put together the documents necessary for the group you lead to obtain Incorporation under the Western Australian Associations Incorporations Act.
We have also been involved in implementing a new Trust Deed for the Miners Accident and Death Fund.
I have provided my services on the Incorporation without charge in recognition of the substantial fees generated for Slater & Gordon by the AWU and our own relationship.
I have also (in recognition of your desire to keep to a minimum outside knowledge of the proposed Incorporated Association) kept all notes and documents associated with this outside the formal filing system at the Firm.
Despite the above facts it is still necessary for me to record this advice to you to provide a record of addressing certain issues going to my duty of care to you.
You have advised that you represent a group of WA Branch officials and members who wish to set up a fund which will assist with their election expenses.
You wish this fund to be unaffected by any disputes about ownership should disagreements arise between members of the group.
You see the contributions to this fund primarily coming from the members individually or joint fund raising efforts.
You wish for a strong focus on Workplace Reform to be specifically mentioned in the Fund documents.
You can see scope for some funds to be obtained through the provision of services related to this area.
2. Problems with Incorporation
The documents relating to this have not as yet been lodged however in the course of their preparation the following potential problems have come to our attention.
They all appear to impact on the achievement of your aims.
a) The Name
You have been insistent that the name of the Association should, on adoption of the rules by your group prior to application for Incorporation, be “the Australian Workers Union – Workplace Reform Association”.
There are provisions in the Act preventing the use of misleading names and unfortunately this name indicates that the Association is somehow part of the AWU.
You of course have also been insistent that the Association is to be legally separate from the Union.
b) Trade Union
The Act prevents bodies carrying on activities affecting employment relations from being eligible for incorporation.
The emphasis on workplace reform and the use of the Union name are likely to cause issues with this.
c) Purpose of Trading
The Act makes ineligible for Incorporation Associations formed for the purpose of trading or securing a pecuniary profit for members.
Depending on the form the assistance with election expenses takes there may be issues with the second limb of this.
Additionally the extent to which workplace reform services are intended to be provided may impact on the trading question.
d) Distribution of Property
No part of the property of the Association is able to be distributed to members except in the promotion of its objects.
The assets must effectively go to another body with similar objects should it be desired to terminate the Association.
The control of the Association rests with the Committee which is elected by the Members.
A minimum of 6 members is required.
Should a dispute arise between yourself and other members of your group control of the Association will not necessarily rest with you.
3. Alternative Structure
We have recently finalised the new Trust deed for the Accident and Death Fund.
This process has squarely raised with me the issue of whether it may be more efficient and appropriate to use a variant of that Trust Deed with a Corporate Trustee to achieve your aims.
A Corporate Trustee is necessary because of your desire to keep the entity separate from the AWU.
For this reason it would not be appropriate to use the State registered Union as Trustee as was the case with the Accident Fund.
The Corporate Trustee can be put in place immediately by simply obtaining a shelf Company and changing its name.
Unfortunately it is unlikely that the use of AWU in the Company name will be allowed however we may be able to use it in the name of the Trust as long as there are no objections from the Union or anyone the Trustee deals with.
There is no need to gain approval of the CAC to any of this.
The issues in b), c) and d) above simply do not arise and it is possible for you to have complete control over the Trustee and hence the operation and distribution of the property of the Trust.
Your desire to have Ralph Blewitt involved in the management can be achieved by making both you and he Directors of the Trustee.
Both of you will hold one share but you again can control his share and his continuance as a Director by a simple declaration of trust in relation to that share in your favour. Alternatively you could arrange for the issue of an additional share to yourself.
I have prepared an attached draft of the Trust Deed.
Examination of it will demonstrate the above points.
The Association is a structure that typically attracts very little regulatory attention.
In WA for example no Financial Statements need to be lodged.
The Tax Office is rarely concerned with them as generally no taxable income is produced.
In relation to Companies however I am aware that follow up action is sometimes initiated if taxation returns are not lodged.
Of course it would be a taxation return for the “Trust” that would be required but these facts sometimes come to the attention of the Tax Office because of the above process.
These factors should not concern you as any tax based on your instructions should be minimal.
I will of course assist in any way I can with the Incorporation process for the Association should you desire to continue along that path but its success appears to me to be problematic at this stage.
You should however consider the alternative which given the likely problems referred to above would appear to me to be the preferable course.
April 16, 1992
The changes to the Fatality Fund necessary to achieve Wilson's purported aim or instructions to Gillard are all in this file.
A few changes to the front page (note date of filing, identical to AWU WRA Inc)
The addition of a few crystal clear clauses:
And a signature page to give effect to the Trust and Fund.
But instead of doing that, capitalising on the work already done and avoiding all the dramas with the AWU WRA Inc - Gillard spent two months fighting to get the Association incorporated.
Was that the action of an arm's length lawyer providing genuine legal advice - particularly in circumstances where she was also working on the Trust Deed?
I think a jury would be entitled to draw inferences from these and other facts.
She was part of the conspiracy with Wilson.