We first published this research in December last year and many readers may have missed it.

It's worth revisiting, particularly for the chronology regarding lodging forms and incorporating the association.

More soon new stuff soon - here's the article:

Thursday, 19 December 2013

WA's Corp Affairs Commissioner John Metaxas, his sister Marcelle and her boss Carmen Lawrence

This one's for the true believers.

Seeker of Truth is a determined person who keeps going way after almost everyone else has given up on solving the puzzle.

As a result of the Seeker's find last night, we'll have new material to sift through over the next few days - material that amazingly has apparently eluded two police forces, 3 police investigations and a $56 million Royal Commission's examination of the incorporation of the AWU WRA Inc.

You know the incorporation was dodgy.   I know the incorporation was dodgy.   The only person in Australia trying to say it was just a run of the mill routine transaction, so minor it didn't warrant raising a bill or opening a file, is Julia Gillard.

Overt the next few days we might get a bit closer to the truth.

Just a couple of words from me first.  Thank you to those supporters and contributors who have stuck with us and made this website something we can all be very proud of.   We attract vociferous critics along with immensely generous people who give freely of their time and expertise in a genuine effort to find the truth.   There's been a little baying for blood and revenge but only a little of that and it's on the fringes.   The essence of this website is that it's a repository for nearly 6,000 articles that include every document (that we know of) relevant to the commission, completion and cover up of The AWU Scandal.   Our website has been archived by the Australian National Library and I am very proud of its contribution to Australia's historical record.

So, to the start of this significant new tranche of documents Seeker of Truth uncovered.   Apologies if they've been discussed before (I wasn't aware of them and apparently nor were police or the Royal Commission because the absence of documents like these was noted by the Commissioner) but it's only now with other pieces of the puzzle that a narrative that's delivered by these documents (and others) clearly emerges.

This is the Western Australia Government Gazette of Friday, 24 June 1988 - as you see from the cover it proclaims the passage into law of the Associations Incorporation Act, 1987.

But it includes much more than a simple recitation of the legislation.   We already have that and the Associations Incorporation Act has been exhibited in the WA Police FOI file and by the Royal Commission here.

This is a new find in that this new material sets out the forms, the fees, the way of drafting of an application etc - these are the Regulations that were gazetted and they were clearly intended as a guide for persons drafting applications and appeals.   Conclusions can come later - for now here's the document.

The only thing to add to this government document is that in 1991 the fees set out above were increased by this government gazette (trust me, the relevance will become crystal clear soon).

I'll just publish that for now and we'll be back soon with the cheques and other correspondence that tells a story and might lead to some missing documents.

In 2003 Victoria's Supreme Court (sitting as the Court of Appeal) dismissed an appeal made by Zhan Yu Zhong who had been charged with inciting someone to commit a criminal offence - in his case murder.  The murder did not go ahead, but Zhong's incitement charge did and he was convicted.The Supreme Court held:

Section 321G(1) of the Crimes Act 1958 provides that where a person incites any other person "to pursue a course of conduct which will involve the commission of an offence ... if acted on in accordance with the inciter's intention", the inciter is guilty of the indictable offence of incitement.

Sub-section (2) provides that for a person to be guilty of incitement the person "must intend that the offence the subject matter of the incitement be committed".

The actus reus of the crime is incitement to commit an offence. Section 2A of the Act provides:

"'incite' includes command, request, propose, advise, encourage or authorize, ..."

The section does not require that the person incited form the mens rea for the crime to be committed. It appears that the incitement need not have any effect upon the person incited, other than to come to the latter's knowledge.

Findlaw.com.au says this about the offence in Victoria:

In R v Massie [1999] 1 VR 542 at 554; (1998) 103 A Crim R 551 at 563, Brooking JA, with whom Winneke P and Butt JA agreed, said of “incite”, “common forms of behaviour covered by the word are ‘command’, ‘request’. ‘propose’, ‘advise’, ‘encourage’ or ‘authorise’”. Whether in a particular case what was said amounts to incitement depends upon the context in which the words were used, and the circumstances.”

If we turn to statutory instruments such as s 2A(1) of the Crimes Act 1958 (Vic) the meaning of incite can include; “command, request, propose, advise, encourage, or authorise.”

One of the interesting aspects of incitement is that it’s generally considered as a substantive offence; meaning, an element of the offence is that it’s not necessary to prove that the person incited, acted upon the incitement. However, it is necessary to prove that the course of conduct urged if acted upon, would amount to the commission of an offence, as the trial judge noted in R v Dimozantis (1991) 56 A Crim R 345 (Vic CCA), and approved by the Victorian Court of Criminal Appeal.

I'd appreciate any advice or guidance from practitioners on the offence of incitement to commit an offence as it might relate to the following circumstances.

The AWU WRA Inc did not exist until 24 June 1992 when the Commissioner's delegate signed the certificate of incorporation.

Prior to incorporation it would have been illegal to create and use documents like invoices with the AWU WRA Inc name, letterheads, receipts, cheques with the name printed on them and that sort of thing.   There'd be no problem with creating paperwork in anticipation of incorporation, but creating documents with the intention of using them as if the incorporated association already existed would be against the law.

So the date for use of the AWU WRA Inc lawfully was clear - 24 June, 1992.   But was there a predecessor unincorporated Association operating prior to that date?

On 10 September 2014 Julia Gillard gave important evidence about whether an unincorporated predecessor association existed prior to June, 1992.   Here she is answering questions at the Royal Commmision relating to the circumstances in the lead up to the application for incorporation, line 26 page 789, Mr Stoljar asking the questions except where The Commissioner steps in:

Q. At that point there was no association; correct?
A. Not to my knowledge, no.

Q. I know you say --

THE COMMISSIONER: Q. Just at that point, there was no
association to your knowledge, in that answer were you
thinking of the Association as the pre-incorporation entity
or the incorporated entity?
A. I'm --

Q. It is just a question of clarity. Do you follow my
query?
A. Yes. Commissioner, my understanding of my
instructions at the time was not that there was a
pre-existing unincorporated association, but that there was
a desire to form and create an association, and I gave
advice on its incorporation.

MR STOLJAR: Q. But you agree with me that on your
understanding at the time, as at March 1992 when this
advertisement appeared, there was no unincorporated
association?
A. My understanding at the time was that there was no
unincorporated association, that's correct.

It was clearly not accidental that the Commissioner himself intervened to make certain that Ms Gillard knew what she was saying and that her evidence was clear and defined.  There was no pre-existing association and she knew it.

On 15 May, 1992 the Assistant Director of WA's Corporate Affairs Office wrote to Ms Gillard.

What she did next might create a few headaches for her.

On 21 May, 1992 Ms Gillard sent this memo telling Ralph Blewitt to do certain things.

"You need to write, on Association letterhead."   She knew there was no Association.   She was a lawyer and should have known that a document that pretends to come from something that it doesn't come from is a forgery or false document.  

But Ms Gillard is clear and specific.  She crafts Blewitt's signature block styling him as Secretary of an Association that she knew did not exist.

She is displaying some familiarity about shared details like the availability of stationary (this was 1992, prior to widespread laser printing).   She didn't tell Ralph to create letterhead, she said to use letterhead. 

Who would have known about letterhead for an Association that did not exist?  We know that Ralph and Bruce had been issuing invoices since April using "Association letterhead" on the top of the invoices like this:

You can't wish an incorporated body into being - it either has a certificate of incorporation and can call itself the AWU WRA Inc or it doesn't.   The AWU WRA Inc didn't exist and so documents that pretended to be from it were forgeries.

There is no protection in changing the story now to pretend that there was an unincorporated association that predated the AWU WRA Inc.   Both Mr Stoljar and the Commissioner himself pressed Ms Gillard on the point - she was clear, she knew at the time there was no Association.   So did Ralph Blewitt.

As a lawyer Ms Gillard would have known that it's a crime to create and use a false document.   That includes creating a document from a non-existent person or corporate entity.

It's also a specific, substantive offence to incite someone else to create and use a false document.  

People rely on documents like that.   

And lawyers should know a whole lot better.

Mr Cain has been sworn, he's adopted a recently made witness statement and it's been tendered into evidence.

In keeping with today's country-of-origin typecasting for each role, the union boss has a Scottish accent.

Mr Cain has answered a question with what must have been a prepared response "we pay lots of money to charitable causes.......

He states that his union has good relationships with lots of employers.  He said, "The MUA treats every employer the same way, if you are suggesting that there is some sort of special deal with Supora, I just say every employer gets treated the same way".

It must be great to be on the sling for a mill with absolutely no strings attached.  Fancy that - get a company to pay you one million dollars for absolutely nothing - other than the warm feeling of supporting warm, cuddly and all round fabulous MUA officials in their philanthropic crusades.

Mr Cain states that the company, SupuraKencana "got a lot" out of its training deals with the MUA - it got awareness of white ribbon day, a lot of other awareness, awareness of issues with going to sea, awareness of suicides at sea.   So if I had a million dollars, I could have all that awareness too?

Mr Cain was shown a letter from SupuraKencana referring to the nexus between good productivity and making money - he said, "I don't care about the company making money".

The MUA's conferences must have been like that Oprah Winfrey end of year show where everyone in the audience gets a car, a new kitchen and a selangor pewter beer mug.   This bloke says all the money earmarked for the conferences went on the conferences, the money was spent exactly as it was earmarked to be spent.  MUA officials, come on down!   You're the next lucky contestants on The Undisclosed Price is Right!

Mr Cain just said that different companies paid different amounts - it just depended on factors.   Yeah.  And you won't believe the coincidences!   The money came at the time of EBA discussions.   And that lousy Stoljar had the temerity to put to Mr Cain the idea that the training/conference/slush-fund voluntary untied wholly unnecessary payments - and the successful, diligent and businesslike negotiations leading to favourable EBA outcomes for the workers and the broader economy were somehow linked.   But Mr Cain had more than an answer for Counsel Assisting - he said, "Well I was there and you were not".   So sucked in Mr Stoljar, bet you don't have an answer for incisive responses like those Mr Cain is dishing around this arvo.  That little exchange will be getting a YouTube hiding on Paddy's iPad at the Lord Nelson tonight!

Hang on a minute, Mr Stoljar has the financial accounts including a pesky profit and loss.   Would you believe that the relevant reporting entity received more than $800,000 in donations, including the money from SapuraKencana, Oord, DEME et al - and its major expense for that year was, wait for it, conference expenses.   So how much would you expect to pay for a fully catered MUA conference, well don't answer.   Because the answer is not a welcome one.   Only a shade over $300 large and that's it, done and dusted.   Might be a minor drama if the auditors turn their mind to the recently posited idea that when a company pays money to the MUA for sponsorship expenses, well then you bet your contents of the false bottom in the boot that the money will all be spent on conference expenses.

Counsel Assisting has learned as much as he can reasonably retain for one day in respect of creating a world-class centre-of-conference-management-excellence within the WA Branch of the MUA - he is now attempting to quench his thirst for knowledge with the MUA's wisdom and distinctive competence in the delivery of training.   " University of the Upturned Packing Case" rules.  

Mr Cain thinks it's great that companies are doing the right thing by relieving themselves, their employees and their shareholders of the burden of that final je ne sais quois that separates the merely university or formally trained from the "MUA Training Course Tick of Approval" industry high-flyer.   Yeah, it's great that they're paying.   Details on the course material might be a bit patchy but then if you haven't attended the Uni of the Upturned Packing case how could you be expected to know what Chris is on about?   It all boils down to "the vibe" of the training.  And the wholly unnecessary but very welcome voluntary payments from companies with shareholder money looking for a new slush fund home.

Up there with transfiguration is the mystery of the means by which payments made to the Uni of the Upturned Packing Case coincide with periods of industrial peace and harmony across the land.   It's a Zen thing.   Boring Stoljar just pointed out in his boring methodical way that an amount of half a million winged its way out of the training fund, into another fund and then over into the Maritime Education and Training company limited.   When you're talking Zen and maritime educational awareness, the money, like the Lord, moves in mysterious ways.

It appears that the very cautious, prudent and conservative folk who provisioned the MUA's training fund with other people's money may have prudently overestimated the amount of actual money required to deliver the ephemeral training in one year.   By the Boring-Stoljar method of dollar adding up, more than one million in excess funds winged their way from the MUA training department accounts to other elements of the MUA's financial infrastructure in one year.   Apparently it pays to err on the safe side.

The Zen is like everywhere in the Commission right now, Mr Cain is oozing Zen.  Mr Cain, when he leaves the union, wants to leave a legacy of major training having taken place.   He didn't mention major funding associated with the major training, but I think that's just taken as read now.  Probably needs a major plaque, or major art-work-in-public-places to mark the spot where the vibe of the MUA training once vibrated so strongly.   There won't be much else left - like books and course work and stuff.

This bloke is dead-set legendary.  He speaks of a grand vision between his union and the donor companies, a grand vision and I quote, "A Social Compact" between donor companies and the Great Educator the MUA, in order (queue Land of Hope and Glory) to leave a legacy for this great nation, this wide brown southern land that we love, surrounded on all its broad reaches by the maritime highway now enhanced with the MUA's "Social Compact" involving Certain Maritime Donors and the sweat from the brow of generations past will mean that my little children...........

After the break, we'll learn how providing money to the candidate for the Federal Seat of Hasluck's campaign represents Maritime Training or Conference Expense payment under the MUA's grand Social Compact with donor companies.

Having learned all he can of training and conference-management today, Mr Stoljar has thanked the master for his generosity of spirit and is now trying to bed down his learnings after his face-time with Guru Cain.

The Corporate Lawyer from Central Casting is now trying to make a name for himself.

It is very tempting, but far too cruel, to imply that the young chap was doing I'm a Little TeaPot.

Now Mr Cain's lawyer (not Mr Cain's, obviously he's there wholly for the members of the MUA, not their bosses) is clearing a few things up.

Mr Cain seems to me to be pondering whether the Uni of the Upturned Packing Case might have some tutoring opportunities for the Corporate Lawyer from Central Casting.

Counsel for the MUA might have asked if there was anything that Guru Cain would have done differently in the management of the MUA's institute of further education.   Guru Cain laments that he was not successful in bringing the MUA brand of higher learning to more of the world's needy.

I don't know about you, but after today's evidence, the only way I can cope and continue to report on it is by descending into farce.

At a bit after knock-off time and happy hour at the Lord Nelson, the Commission adjourned.   Drinks are on METl and Paddy - beer and wine, no spirits, no cards, cash only and if Paddy's not there at closing tell them to ring Cesar.

I'm off for a chilled refresher.

Mr Meijers has been sworn and is seated in the witness box.

He describes his work history, including a current directorship of METl and his other paid roles in the maritime industry.

Here's MET limited.

Here's Mr Meijers CV.

Van Oord is headquarted in The Netherlands, it's involved in the maritime industry, dredging in particular.

Mr Meijers is in a similar position to the other witnesses today - his company has "sponsored" the MUA's conferences to the tune in each instance of $50,000.   He states that he gets nothing for that sponsorship, just like he gets nothing from sponsoring the Dutch School in Brisbane or the Duyfken ship project.

Mr Stoljar points out the difference between genuine charitable and benevolent sponsorships and paying money to a militant, activist (my words not his) trade union.   Mr Meijers doesn't see it that way and because he is a Dutch gentleman he doesn't mind letting us all know in no uncertain terms how he feels and how right he is.

In the end the Dutchman elicits an exasperated "oh well" from Mr Stoljar, who exits stage left.

Mr Meijers told a wonderful story of a great and sponsorship worthy union that never gave his company any trouble.   Solid, lovely fellas - and anyway, his company only ever paid the sponsorship money after the EBAs were finalised.

Counsel for the MUA is cross examining Mr Meijers.   He quizzes him about various statements that the MET Ltd entity is a slush fund for the MUA - Mr Meijers as a director predictably, loyally and fiduciarily disagrees.

At 2.50 Mr Meijers was excused, taking his delightful Dutch accent and forthright nature back to Van Oord.

Lovely to see 3 consecutive sets of superb European manners on show today.   And some Australian lawyerly blushing in the front seats.

Mr De Meulenaere has been sworn and is in the witness box.  He has adopted his witness statement which has been received into evidence.

Here are Mr De Meulenaere's work details:

At 1.10 the Commission adjourned until 2PM.

At 2PM the Commission resumed its hearings, Mr Meulenaere in the witness box.

Mr De Meulenaere was shown a range of correspondence setting out payments made directly by his company in respect of travelling expenses incurred by officials of the Maritime Workers Union, including travel to Europe by the WA Branch Secretary Christopher Cain.

Mr De Meulenaere confirms that the expenses were paid by his company and that they were recorded as expenses of the company.  He states that particularly in the negotiations leading to an EBA it is accepted as customary that the company pays certain of the expenses of the union.

Mr Stoljar asked the witness about a $200,000 amount paid by his company Dredging International to the MUA for a 4 year "sponsorship" of the MUA annual conference - the circumstances sound identical to the evidence led in relation to the Malaysian offshore company SapuraKencana this morning.

De Meulenaere's predecessor negotiated the deals with the MUA.   In his witness statement, De Meulenaere states that his company receives no tangible benefit from its "sponsorship" and other payments to the MUA, save for the intangible benefit of being seen to maintain a working relationship with the MUA.  Mr Stoljar quizzed him as to what he meant by that - he said it showed his company was not hostile to the union.   Pretty exxy way to show it.

The witness is being shown invoices apparently from MUA entities for huge amounts of money, approx $300K, two lots of more than $100K (this evidence after we heard about $1M from SapuraKencana this morning).

Stoljar, "have you wondered why you are paying more than $300,000 to the MUA for conferences expenses when your company has already paid more than $200,000 for conference expenses already?   What's going on?   There's money flooding out of your company to the union and no one can tell us why?"

"What is the true purpose of Dredging International paying this money?"

De Meulenaere has absolutely no flamin' idea.   He better get used to having some idea, it'll help when he fronts regulators in his company's European domicile.

http://www.deme-group.com/sites/default/files/deme_annual_report_ar2013_pr_def.pdf

AT 2.25 the witness was excused.

Like his Italian direct report and predecessor in the witness box Mr Bressani delivered a cheerful "Good morning" to the Commissioner which was returned in similar vein.

He's been sworn and has explained that he is the Chief Executive officer of SapuraKencana Australia.

He states that it was his company's operational requirement that it employ specialised overseas crew on tug boats operating in the oil and gas fields offshore Western Australia.

SapuraKencana Australia is wholly owned by the Malaysian company SapuraKencana.

Mr Bressani is being quizzed about much the same material as was his Chief Operating Officer Mr Di Giorgi.

After establishing that training funds paid to the MUA were not used to benefit employees of his company, and that sponsorship monies paid to the MUA were not necessarily used for the purporse for which they were paid, Mr Bressani was excused at 1pm.

I was very impressed with Rowan Dean's frank and thoroughly-researched assessment of Julia Gillard's biography My Story which I heard when he was on Miranda Devine's show on 2GB last night.

Miranda's slot on Sunday nights often delivers up unexpected gems like this interview.   Rowan Dean isn't one of the usual-suspects either when it comes to having a go at Ms Gillard, - he's a regular on the ABC's The Drum and he writes for the Fairfax press.

Rowan didn't pull any punches and he landed heaps - it's great listening and it certainly helped me get a clearer view of what the Gillard "legacy" really is.

Good on Rowan and Miranda for the frank and fearless chat.

Counsel Assisting is now delivering his opening address - the hearing will take evidence regarding the Western Australian branch of the Maritime Union of Australia.

The matters to be enquired into involve companies paying money to the Maritime Union of  Australia in suspect circumstances.   One of the companies is said to have paid $1M to the MUA.

The Commission will examine 4 case studies.

At 1015 Mr Stoljar completed his opening remarks.

Various lawyers announced their appearance for parties in the proceedings including Mr Crawshaw who appears for the MUA, Paddy Crumlin and Christopher Cain.

Mr Crawshaw will not be endearing himself to the Commissioner with his first submission - he says that it's beyond the Commission's terms of reference to examine bank accounts associated with the MUA.   The Commission proceeds.

Fabio Di Giorgi is the first witness.

Mr Di Giorgi has been sworn and save for a couple of corrections has adopted his witness statement which has been tendered and received into evidence.

Mr Di Giorgi is the Chief Operating Officer at SapuraKencana Australia.  He has given a brief explanation about his company's involvement in offshore oil and gas production off the coast of Western Australia.

Mr Di Giorgi was asked about the arrngement under which foreign tug boats and crews came to operate in the oil and gas fields off shore Western Australia.

At the start of the project Mr Giorgi received a note from the MUA stating that the proposal to use foreign crews and tugs would cause huge problems.   The union was forcefully opposed to the use of foreign crewed tugs.

So far, so good.   The MUA is acting as you'd expect it to act.   Want a bet about how much longer until we hear about money?

Well that didn't take long - the MUA was after $1.8M.   Saipem wanted to haggle.   It though that $750K was fair enough.

Amazing - after the money was sorted between Saipem and the MUA the foreign crews became a lot less foreign - turns out it was OK to use them after all!   The MUA even sent officials out to tell Australian workers to "stop the bullshit" and get on with the project.

Here is the website blurb for the Maritime Employees Training Ltd company which is featuring in today's MUA hearings. 

Bruce Wilson must look longingly at these post-modern union slush funds. Every self-respecting putative Labor prime minister and his backer now seem to have a company limited by guarantee, legal fees that get covered by other union-related work and the most bullet-proof constitution union money can buy.   It's a far cry from cutting and pasting old socialist group hand-me-downs into a near-enough jury-rigged job (yes I see Freud at work too).

Just after 11.30 the Commission adjourned - it resumed at midday, Mr Giorgi remains in the witness box.

Mr Giorgi is shown a range of documents related to his next job in Western Australia's offshore industry - more payments to the MUA for training funds and sponsorship of the MUA conference.

Mr Stoljar put to Mr Giorgi that the money in each instance was paid to purchase industrial peace from the MUA.   Mr Giorgi has some difficulty actually stating it that way.   He says it was for training and pure sponsorship.

At one point Counsel for the MUA objected to a persistent line of questioning pursued by Mr Stoljar.   The Commissioner responded by saying he thought it was fair enough, he said Mr Stoljar had already elicited consirably more than the early no recollection/explanation answers provided by Mr Giorgi.

There were no questions from Counsel for other parties and MUA Mr Giorgi was excused at 12.30.