On 14 November 2014 I responded to Counsel Assisting's final submission about the relevant entity the AWU WRA Inc. 

Counsel Assisting submitted that Thiess's WA Government contract for the Dawesville Channel was awarded after a public tender process.  

My submission to the Royal Commission said Counsel Assisting was wrong.  I say that after lobbying, Carmen Lawrence's Labor Government cancelled any tender process and gave the $60M contract directly to Thiess.

The AWU WRA was set up to receive money from the Dawesville contract.   Its income flowed from the WA Government, through the Dawesville contract with Thiess and into bank accounts that Wilson controlled.  Complete inquiries into the AWU WRA Inc should include commentary on whether or not that contract was awarded after tender.   Counsel Assisting saw fit to raise the matter of the tender in his submissions, it's just that his submission is wrong.

On 21 November 2014 the Commission published(page 17) Counsel Assisting's response to my 14 November submission.    CA said (my bold emphasis):

(Michael Smith) has overlooked that these paragraphs of Counsel Assisting’s Submissions in Chief were based on the unchallenged evidence of Mr Blewitt, which was to the effect that there was a tender,  that the AWU played a role in that tender process and that Thiess was the successful tenderer.

Mr Blewitt was examined by his legal advisor on 13 May 2014 and this evidence was
not sought to be corrected. Nor was there any cross examination of Mr Blewitt on this
issue.  Nor did any other witness put on evidence contesting Mr Blewitt’s evidence on this point.  Mr Blewitt was a senior official in the WA Branch at the time and would
have had personal knowledge of its affairs.  His evidence was that the AWU was
involved in the tender process.  On the face of it this evidence was given on the basis of
his personal knowledge.  There was nothing to suggest that this evidence was erroneous, or even controversial. The upshot of this was that the evidence in respect to this point of detail was not challenged.

Given the material contained or referred to in the submissions now received it appears
that Mr Blewitt’s evidence on this point is open to doubt (although none of the
documentation referred to in the submissions is in evidence and no concluded view can
be expressed at this stage). However since this issue was not debated in evidence in the Commission for the reasons set out above, it is not taken further here.

I'll try to answer Mr Stoljar's points in order.  

What did Blewitt actually say?

Here is Blewitt's evidence, Page 10 of the transcript 12 May, 2014

Q. Was there a tender for the work?
 4 A. I believe so, yes.

 6 Q. Who won the tender, to your knowledge?
 7 A. Thiess Contractors ended up with the contract.

Blewitt says "I believe so" about the tender.   The basis of his belief is not explored, but it connotes an absence of certainty. 

Mr Stoljar's submission then misquotes Mr Blewitt a little, submitting that Blewitt "gave unchallenged evidence" "that Thiess was the successful tenderer".   Blewitt actually said, "Thiess Contractors ended up with the contract". 

On the final point Mr Stoljar made about Blewitt's evidence, Ralph agreed with Mr Stoljar that the AWU played a role in what Stoljar referred to as "the tender process".   Blewitt went on to describe Wilson's lobbying efforts on behalf of Thiess with members of the Cabinet.

Mr Blewitt's standing on this issue

Blewitt had no role in the contract negotiations between the WA Government and Thiess.  He wasn't in the Cabinet that made the decision.   The AWU was not a party to the contract.

Anything Ralph "believes" about the tender must be hearsay.

Mr Stoljar puts much faith in the recollected "belief" of a man who in this matter was a bystander - which might be fair enough if there was no other evidence.

Was there other evidence available to the Commission? Was Blewitt unchallenged?

Stoljar says Blewitt's evidence was

• "unchallenged"
• "Nor did any other witness put on evidence contesting Mr Blewitt’s evidence on this point"
• "There was nothing to suggest that this evidence was erroneous, or even controversial. The upshot of this was that the evidence in respect to this point of detail was not challenged".

That's just wrong, evidence from two central players was available but somehow Mr Stoljar missed it.  The two most senior Thiess executives responsible for securing and delivering the Dawesville Channel contracts have given sworn evidence (in Affidavit form) that Thiess was directly awarded the contract and there was no tender.

On 28 June 2013 the former Thiess General Manager for WA Nicholas Neil JUKES made a statement to Victoria Police about the AWU WRA.  The statement was available to the Royal Commission and is located in Jukes's sworn evidence here.

At Page 57, paragraph 7 Jukes states:

He confirms the fact the Dawesville Channel project was directly awarded to Thiess without tender in paragraph 13 on the same page:

Jukes confirms that Thiess's contract negotiations for the Channel and Bridge were directly with the WA government.

Nick Jukes was the GM for Thiess, and he admits his company got the contract without tender.   It beggars belief that Counsel Assisting the Commission might prefer the line or two of hearsay from Blewitt over the direct evidence of Jukes.

But it's not just Nick Jukes.

Bruce Wilson's brother in law Joe Trio says the same thing, there was no tender, Thiess was directly awarded the contract.

On 11 April 2013 Joe Trio made a statement (with the penalties of perjury if untrue) to Victoria Police - he's adopted and sworn that evidence with further affidavit material filed here.

This paragraph follows a lengthy description of the process leading to the contract:

It's chilling that Senior Counsel Assisting could submit that:

since this issue was not debated in evidence in the Commission for the reasons set out above, it is not taken further here.

"This issue" is central to the genesis of the AWU WRA Inc.    Why did Carmen Lawrence's Cabinet intervene to overturn a tender process and directly award a $60M contract to Wilson's mates in Thiess?   Why did Thiess pay Wilson precisely $300,000 in monthly payments, spread over the anticipated 36 months duration of the contract, even when the work was finished 8 months early? Thiess's profits must have been considerable, they were paid a fixed price for a fixed term of 36 months of work.   Without a competitive process, who knows how much time or money other like companies would have tendered?   Thiess was laughing, it was overpaid for 8 extra months of work it didn't have to do.

The centrality of the Dawesville contract in inquiries about the AWU WRA Inc becomes crystal clear when you turn to Bruce Wilson's evidence about why he was so keen to set the association up:

I did some research to inform myself about how to go about setting up a legal entity to
receive the monies from the DCP (the Dawesville Channel Project). I may have asked
someone like my accountants, or Stephen BOOTH or Julia GILLARD. I got as much
information as I could about how to go about it from various sources. After informing myself
I believed that the entity should be an incorporated association.

The AWU WRA Inc and the Dawesville Channel project are inextricably bound.  The slush fund money came from the Dawesville project.   Wilson says the slush fund was set up to receive that money.   Carmen Lawrence's cabinet made the decision to give that contract to Thiess, in secret and without competitive process.

The career path of ambitious union leaders is often crowned by a seat in a parliament.   Because of the dependencies and links between unions and the Labor Party when in government, inquiries into union corruption must traverse "political" and uncomfortable ground.   I sense in the Submissions from Counsel Assisting an aversion to pursuing relevant matters if to do so might generate political or media controversy.   This is one instance where the Commission's terms of reference properly direct it to make those inquiries.   If the evidence of Jukes, Trio and the potential evidence in my submission is ignored in favour of Blewitt's belief, the Commission will be a laughing stock.

The AWU WRA Inc is the first and most notorious "relevant entity" the Commission is directed to inquire into.   That job should be done properly.  Counsel Assisting's submission that the Commission "not take the issue (of the $60M earthwork and bridgebuilding for mates without tender contract) any further" should be revisited or the Commission should ignore it.