ROYAL COMMISSION INTO TRADE UNION
GOVERNANCE AND CORRUPTION
Level 19, 55 Market Street, Sydney, NSW, 2000
On Monday, 12 October 2015 at 10am
AWU OCTOBER
(Day 1)
Before the Commissioner: The Hon. John Dyson Heydon
AC QC
Counsel Assisting: Mr Jeremy Stoljar SC and
Mr Richard Scruby
Instructed by: Minter Ellison, Solicitors.
.12/10/2015 AWU OCTOBER 1
Transcript produced by DTI
CORRECTED
2 THE COMMISSIONER: Yes, Mr Stoljar?
3
4 MR STOLJAR: Commissioner, before I call my first witness,
5 there are some appearances and there may be some other
6 housekeeping matters.
7
8 THE COMMISSIONER: Yes.
9
10 MR N CLELLAND QC: Commissioner, I appear for Mr Shorten.
11
12 THE COMMISSIONER: Yes.
13
14 DR K HANSCOMBE QC: Commissioner, I appear now for
15 Mr Melhem. Mr Moore previously representing Mr Melhem is
16 engaged elsewhere in a trial.
17
18 THE COMMISSIONER: Thank you, Dr Hanscombe.
19
20 MS D HOGAN-DORAN SC: Commissioner, I seek authorisation
21 to appear for Mr Sasse.
22
23 THE COMMISSIONER: Yes, that's granted, Ms Hogan-Doran.
24 Any other appearances?
25
26 MR CLELLAND: Commissioner, the other matter which our
27 learned friend Mr Stoljar was adverting was a matter
28 I raised with him very briefly before you came on to the
29 bench. It relates to the expected testimony today of
30 Mr Stephen Sasse and the questioning which took place back
31 in July, it is now, July 9, of Mr Shorten in the Commission
32 when he gave evidence relating to the Thiess John Holland
33 matter. Commissioner, you will have some recollection of
34 that, although I am sure you have heard a lot of evidence
35 since.
36
37 Mr Shorten is concerned, as a result of what has come
38 to his notice and the notice of his legal representatives
39 subsequently, that he has not been afforded procedural
40 fairness in that process.
41
42 Mr Shorten's solicitors wrote to the solicitors for
43 the Commission who reject those assertions and, in effect,
44 stated that we should explain our position before the
45 Commission this morning, and we seek to do so now. We are
46 mindful of the fact that the Commission has a fairly
47 demanding timetable and we will try and deal with this
.12/10/2015 AWU OCTOBER 2
Transcript produced by DTI
CORRECTED
1 relatively briefly, but we do wish to deal with these
2 issues now if we might.
3
4 THE COMMISSIONER: Certainly.
5
6 MR CLELLAND: If the Commission pleases. To assist in
7 this process, could we just provide the Commission, our
8 learned friends, with some folders of some correspondence
9 between solicitors for Mr Shorten and solicitors for the
10 Commission.
11
12 I think Mr Sasse is actually in the hearing room
13 because I am told that he is to be the first witness. He
14 was formally a General Manager for Human Resources and
15 Industrial Relations Safety with John Holland and his
16 evidence, we expect, will touch on matters about which
17 Mr Shorten was examined.
18
19 A convenient exposition of the concerns, Commissioner,
20 can be found behind tab 10. I don't know, and I am not
21 going to ask, how much of this material you have seen, sir,
22 but I propose to take you to it. There is this letter --
23
24 THE COMMISSIONER: I don't have to bother with tabs 1 to
25 9; is that right?
26
27 MR CLELLAND: I will take you back to those because the
28 correspondence behind those is referred to either in this
29 letter from Mr Shorten's solicitors to solicitors for the
30 Commission, or in the Commission's response of the same
31 date. Both those pieces of correspondence contain, it
32 might be said, both heat and some light.
33
34 The point under discussion is the questioning of
35 Mr Shorten on 9 July. It was regarding an alleged
36 agreement in the context of EBA negotiations said to have
37 been arrived at between the joint venture, Thiess John
38 Holland and the AWU for a payment to the AWU of some
39 $100,000 per annum over three years.
40
41 Commissioner, at that time, no statements or evidence
42 had been provided to Mr Shorten or his legal
43 representatives by persons claiming to have any knowledge
44 or involvement in those negotiations on behalf of Thiess
45 John Holland.
46
47 Could I invite you to go to the letter from Arnold
.12/10/2015 AWU OCTOBER 3
Transcript produced by DTI
CORRECTED
1 Bloch Leibler on behalf of Mr Shorten. Commissioner, you
2 will see that the first reference there is to the
3 Commission's letter of 25 September 2015 in which ABL, that
4 is Arnold Bloch Leibler, was advised that the Commission
5 required notification of the persons that Mr Shorten sought
6 leave to cross-examine by 6 October 2015, and what was
7 described by the writer as the Commission shut out date,
8 and it refers to the fact that there was some confusion
9 arising from Practice Direction 12 which set out an earlier
10 cross-examination.
11
12 That letter, Commissioner, can be found behind tab 2.
13 For present purposes, we direct you, Commissioner, to the
14 statement, first of all, of the dates upon which the
15 evidence in relation to the Thiess John Holland matter
16 would be heard, that was 12 and 13 October. The documents
17 that would be the subject of examination were identified as
18 those documents placed into evidence before the Commission
19 during the hearings the Commission conducted between 28 May
20 and 4 June, and 8 and 9 July 2015, and there was a listing
21 of those documents which included Shorten MFI-1 to MFI-14.
22
23 There was an indication that additional witness
24 statements, private hearing transcripts and documents would
25 be uploaded to the AWU October 2015 Court Book, that's at
26 about point 3 on page 2 of the letter, Commissioner, from
27 Friday, 25 September 2015 onwards.
28
29 There was a reminder, or an emphasising of the
30 confidentiality provisions of section 6D(3)(b) of the
31 Royal Commissions Act and there was a request for
32 notification by 6 October 2015 by parties who wished to
33 cross-examine a witness and the topics about which they
34 wished to cross-examine that witness. Self-evidently, at
35 that point, there was no listing of witnesses to be called,
36 and just to clarify what the confusion was, there was an
37 attachment of a practice direction signed by you,
38 Commissioner, on 25 September 2015 which at paragraph 5 at
39 least made reference in the last sentence to the need for
40 applications to be made in writing no later than 2 October
41 2015. Nonetheless, it is accepted, and I think agreed
42 between the parties, that 6 October was the relevant and
43 operative date.
44
45 On 1 October, Mr Shorten's solicitors wrote to the
46 Commission. Commissioner, you will find that
47 correspondence behind tab 3. It is actually an email. A
.12/10/2015 AWU OCTOBER 4
Transcript produced by DTI
CORRECTED
1 number of things were sought in that email. In the second
2 major paragraph, this was said, although Mr Shorten has
3 previously made this point:
4
5 The Commission should provide all
6 additional statements and documents which
7 concern Mr Shorten, including long-held
8 transcripts of private hearings, as soon as
9 reasonably possible before the Parliament
10 resumes sitting so we may obtain his
11 instructions.
12
13 There was then a reference to materials received that day,
14 that is, uploaded on to the website, which apparently were
15 transcripts of private hearings which had taken place as
16 long ago as 15 April 2015 in relation to a Mr Lance Wilson,
17 but up to and including 19 August 2015, an explanation was
18 sought for the delay in providing those documents.
19
20 What was also sought was, in view of the fact that no
21 witness list had been advised, a request was made for a
22 proposed witness list and indeed the dates that those
23 witnesses were proposed to be called as soon as reasonably
24 possible. The document went on to say, significantly:
25
26 There has been much media reporting of the
27 fact that the Commissioner has made a
28 decision to call Mr Sasse and that his
29 evidence may concern Mr Shorten.
30 Mr Shorten and his lawyers have not been
31 told by the Commission that the Commission
32 intends to do so. If the Commission has
33 previously decided to call Mr Sasse, can
34 you please let us know when it proposes to
35 do so and can you please provide us with a
36 copy of his statement or transcript of his
37 private hearing.
38
39 That night - and Commissioner, you will find this document
40 behind tab 4 - this ECB notification appeared and advice
41 was given to the affected parties and their legal
42 representatives.
43
44 THE COMMISSIONER: Can I just ask a question if it is not
45 inconvenient to your train of thought?
46
47 MR CLELLAND: Yes.
.12/10/2015 AWU OCTOBER 5
Transcript produced by DTI
CORRECTED
1
2 THE COMMISSIONER: It may not matter much, but the letter
3 from Mr Zwier, Thursday, 1 October, was emailed at 9.34pm.
4 Do we know when the document behind tab 4 was generated?
5 In other words, was it before 9.34 or after 9.34? You said
6 it was that night.
7
8 MR CLELLAND: The document that I want to draw your
9 attention to, or that advice, was at 11 o'clock that night,
10 11pm.
11
12 THE COMMISSIONER: Thank you.
13
14 MR CLELLAND: The advice - and we're just anxiously
15 looking for it at the moment - is not that which sits
16 behind tab 4 at the moment. We will find a copy and hand
17 it up to you, but I can tell you as Mr Zwier's letter of
18 8 October says, Commissioner, if you go to page 2 at about
19 point 3, under the heading "Sasse statement provided 11pm
20 on 1 October 2015 to Mr Shorten", later, at about 11pm in
21 response to my email, and on 1 October 2015, the Commission
22 made available, amongst other AWU evidence, the statement
23 of Stephen Sasse dated 7 August 2015. The Commission did
24 not provide a copy of the transcript of any Sasse private
25 hearing.
26
27 THE COMMISSIONER: What you've just read was from what?
28
29 MR CLELLAND: I missed your question, I'm sorry?
30
31 THE COMMISSIONER: You just read out a few sentences.
32 What were you reading from him?
33
34 MR CLELLAND: I was reading from Mr Zwier's letter of
35 8 October behind tab 10 of the folder at page 2 and under
36 the heading "Sasse Statement provided 11 pm on 1 October
37 2015 to Mr Shorten". Regrettably, it seems we have put the
38 wrong notification in, but, for present purposes, it may
39 not matter that much. What it referred to was the
40 statement or, indeed, a background document of Mr Sasse
41 which, of course, was not a transcript of a private hearing
42 or an interview which subsequently emerged, but what was
43 included or reference was made, however, to - and
44 I apologise for the pronunciation, but what was included
45 was a transcript of the private hearing of Mr Rzesniowiecki
46 and relevant attachments for him. That was at 11 o'clock,
47 11pm, on the night of 1 October following Mr Zwier's
.12/10/2015 AWU OCTOBER 6
Transcript produced by DTI
CORRECTED
1 letter.
2
3 On 2 October, solicitors for the Commission -
4 Commissioner, if you go to tab 5 you'll see the response
5 from solicitors to the Commission to Mr Zwier's 9.33pm
6 letter of 1 October 2015, the email:
7
8 Thank you for raising these issues with us.
9
10 Unfortunately with the Commission's current
11 reporting deadline of 31 December 2015
12 there is limited flexibility to reschedule
13 a 2 week hearing block and allow sufficient
14 period for written submissions.
15
16 The letter went on to state that there had been no delay in
17 providing affected parties with material relevant to the
18 next round of hearings. A reference was then made to
19 Practice Direction 13 of 25 September and went on to then
20 explain:
21
22 The Commission is entitled to keep evidence
23 confidential until it determines that its
24 publication will not interfere with the
25 integrity of other evidence it is gathering
26 or publication is otherwise necessary to
27 afford procedural fairness. As an
28 investigative body the Commission assembles
29 evidence and assesses its relevance to the
30 inquiry being undertaken. It is only when