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If Ralph Blewitt is charged in the AWU Scandal, GILLARD will be charged too. Here's why.

To convict GILLARD for conspiring with Wilson, Blewitt and others a jury will need to be convinced she knew what WILSON was really up to - or that she was wilfully blind and ignored important facts.

Her consciousness of guilt will be proven in a few ways.

A proper reading of the course of condut of the parties from 1989 to 1995 leaves little room for an innocent explanation for her part.  That is looking at each event in sequence, rather than as a separate occurence.

Also weighing against her will be the cover-up, different versions of events GILLARD has given and her false denials of matters now proven.

Commissioner Heydon extended two major concessions to GILLARD in his heavily caveatted recommendation she face no criminal charges.  

Firstly, he dealt with the criminal acts as separate occurrences, not as a course of conduct.

Secondly he allowed her the benefit of a confected doubt on the enabling criminal act - the incorporation of the AWU Workplace Reform Association.

In his report on the matter Commissioner Heydon said:

......the creation of a new legal person as a result of dealings with a senior official of the State of Western Australia was not some mere inter partes dealing between Bruce Wilson and other persons having no general significance. It affected the public at large. 

We know what Gillard did, drafting the objects and filling out the Application and Certificate to accompany the Application.  We also know she "argued the case" for incorporation after the initial Application was deemed ineligible.  (We can now add to that her use of false documents at the Royal Commission in the Ray Neal letter and the purported memo to Blewitt setting out the Rule 3A change).

Commissioner Heydon says GILLARD could have one of two alternatives in relation to the many false statements and deceptions in the application material put to the Corporate Affairs Commissioner.

She either:

  • failed to notice; or
  • deliberately ignored them.

Those false statements and deceptions relate to:

  • The requirement for an association to exist before it resolves to seek incorporation
  • The fact BLEWITT could not have been "duly authorised" to apply for incorporation
  • The absence of minutes or resolutions authorising incorporation
  • The absence of any suggestion the association had more than 5 members - and her own statements that she knew there was no existing association.

Heydon says if she failed to notice, she was careless but not criminal.

If she deliberately ignored the matters described, she was party to Ralph Blewitt’s deceit.   That is she is guilty of the offences upon which WILSON and BLEWITT have been referred for prosecution.

Generously, Heydon found a sliver of doubt to excuse her culpability and gave her its benefit.  But he had precious little evidence to support his position.

The best exculpatory material Heydon could muster to support his finding that she was careless and simply failed to notice the false statements and the law is this:

She had the reputation, merited or not, of being very left-wing. Robert Kernohan claims that William Shorten said on numerous occasions that he despised her ‘because of her links to the Communist Party’. People with a left-wing reputation are usually keen to preserve it by avoiding involvement in fraudulent conduct. If she had known of Bruce Wilson’s and Ralph Blewitt’s frauds, it would have been an act of insensate folly to have gone along with them. It is quite improbable that she committed that act of folly. 

But Gillard wasn't just conspiring with Wilson and Blewitt.  This project had Bill Ludwig's imprimatur and his complicity as a co-conspirator.  She had the green light from Ludwig for doing what she did.  Given that Ludwig was notorious for retaining (Hawke) and installing (Keating) prime ministers at the time, the fact of his involvement must have been a significant confidence boost.

So putting to one side the left-wing-reputation-to-protect defence how does Heydon's "failed to notice' opinion stack up?

To avoid conviction, GILLARD will have to convince a jury that her participation in creating these two documents was innocent.  As Heydon said, she will have to convince the jury that she failed to notice the printed words on the form she helped to fill in.

Remember if she saw and read the words but ignored them (eg "the person duly authorised" etc) she is party to the criminal offences.

The jurors will probably get to hold these two documents.  So put yourself in a juror's position.  Do you believe GILLARD failed to notice the certificate and application contained almost exclusively false statements?

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Even with the protection of a left-wing reputation, I can't see how a person could write detailed information on a form, get it in the right space on the form and "fail to notice" the printed English text around it.

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One last point on consciousness of guilt.

For years Gillard's stock standard answer on this matter was "I provided legal advice as a lawyer".

In fact her role went way beyond the innocuous sounding "provided advice".   GILLARD "attended to the incorporation" of the association with all its deficiencies.  And she created an extensive range of documents.

But while the Exit Interview remained a tightly held secret and no physical evidence was available to connect her to anything other than giving "advice", Gillard was able to deflect inquiries and cow and threaten media proprietors into retractions like the following.

On 11 November 2007 Glenn Milne's famous 'young and naive" story ran in News Ltd's Sunday newspapers.

It must have worried Gillard in the run up to the election of the Rudd Labor Government. 

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Gillard had her staff get straight on the phone to senior News Corp editors.  The later editions and the online versions contained this retraction:

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And that was the last the matter was heard of in the main stream media until I interviewed Bob Kernohan in late August 2011.

Gillard falsely denied involvement in the incorporation.  She falsely claimed "it's all on the public record".  And she terrorised News Ltd and Fairfax to the extent neither entity would run the story.

But as part of the $25K legalling process prior to authorising Bob Kernohan's interview for broadcast at 2UE, I had obtained an entire copy of the Cambridge Affidavit and the Exhibits attached to it.  All of those documents were reviewed by Fairfax's external defamation lawyer Bruce Burke.

I also engaged Paul Westwood, Australia's leading forensic handwriting and document analyst.  My suspicions were raised by the two sets of writing on the material you see above.

I asked contacts in Canberra to send me copies of her handwriting.  One known example was a condolence card with the word Australian written on it.  My producer printed the PDF copy out and glued it to a piece of cardboard so we could line it up under the handwritten "Australian" on the form.  After that, Paul Westwood was just a formality.

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I will never forget Bob Kernohan's tears of relief as he dropped to his knees overwrought with emotion the instant he saw the words line up.  

For years Bob had been the victim of the Gillard/Ludwig/Shorten smear campaign.  With the handwriting analysis there was now a physical link and concrete proof that she'd done more than just offer some advice.

Gillard didn't give advice as a lawyer on how this association might incorporate.  There was no external client - Gillard was a conspirator, a part of the scheme.  She didn't act on a strict retainer, she did whatever it took to create the unlawful vehicle through which the Thiess secret commissions were channelled to Wilson, Ludwig and herself to pay for her "under the table" work.

So how do you think she'll fare with a properly instructed jury when she tells them, "Yes, that's my writing on that form, I just failed to notice all the printed writing around it.  How careless of me"?

Personally, I don't like her chances.  There's more to come from me soon too.

Every touch leaves its trace.