ROYAL COMMISSION INTO TRADE UNIONGOVERNANCE AND CORRUPTION
Health Services Union
Level 5, 55 Market Street, Sydney, NSW 2000
On Monday, 25 August 2014 at 10.33am
Before the Commissioner:The Hon. John Dyson Heydon AC QC
Counsel Assisting:Mr Jeremy Stoljar SC
Ms Fiona Roughley
Instructed by:Minter Ellison, Solicitors
25/08/2014 (6)422
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1 THE COMMISSIONER: Yes, Mr Stoljar.
2
3 MR STOLJAR: May it please the Commission. There are some
4 appearances. It may be convenient to deal with those prior
5 to my opening.
6
7 THE COMMISSIONER: Very well.
8
9 MR STOLJAR: I understand that counsel for at least some of
10 the parties, Mr van de Wiel has an application to make
11 before I begin by opening, but I'll leave that with him,
12 Commissioner.
13
14 THE COMMISSIONER: Very well. Let's just run through
15 others before you, Mr van de Wiel. Is Mr Irving present?
16
17 MR M IRVING: Yes, Commissioner.
18
19 THE COMMISSIONER: The usual appearance?
20
21 MR IRVING. Yes.
22
23 THE COMMISSIONER: And Mr Temby?
24
25 MR I TEMBY QC: Yes.
26
27 THE COMMISSIONER: That brings us to you, Mr van de Wiel.
28 You appear for Ms Kitching?
29
30 MR R van de WIEL QC: I seek leave and I believe I have
31 been granted leave to appear for Ms Kitching and also for
32 Ms Asmar
33
34 THE COMMISSIONER: Very well.
35
36 MR van de WIEL: What has come to our attention, as
37 a result of what Mr Stoljar has told us, is I understand
38 that the proposed witnesses who have been brought up from
39 Melbourne today will seek to be represented if they're
40 cross-examined. With the greatest of respect --
41
42 THE COMMISSIONER: Could you just speak up a little bit?
43 I am having trouble hearing.
44
45 MR van de WIEL: I will speak louder.
46
47 THE COMMISSIONER: You said that the proposed witnesses
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1 will seek to be represented while they're being
2 cross-examined?
3
4 MR van de WIEL: Yes. We would regard that as being quite
5 an unfair situation, having regard to the fact of the heavy
6 media attention in relation to this matter. If they are
7 going to give their evidence, with the greatest of respect,
8 we should be allowed to cross-examine them at the same
9 time. What is presented to the public as a result of the
10 process, no doubt for public education, will be available
11 quite fairly and quite evenhandedly. It would be our
12 submission to you, Mr Commissioner, that we not proceed
13 with any evidence in relation to them today at all.
14
15 We have come up also from Melbourne. I suggested
16 before we started that the forum of convenience really
17 would be Melbourne, but we've all come up here, a large
18 number of people. We have got ourselves ready in a very
19 short space of time. If we had some more time, perhaps we
20 could sort out the issues even more because at the moment
21 we don't really have any particularisation of where we're
22 going with these witnesses and I don't know if you've had
23 the opportunity to peruse these statements, but a lot of
24 them contain material which is nothing more than
25 scuttlebutt and not worthy of your attention, with respect.
26
27 There is another matter and that's this: what is
28 proposed for your consideration, sir, is
29 a consideration - and I would seek a suppression order in
30 relation to the matters that I am about to raise.
31
32 THE COMMISSIONER: You want a suppression order about what
33 you're about to say now?
34
35 MR van de WIEL: Yes, I would. It concerns a matter which
36 is before another tribunal, which is also apparently to be
37 raised before you, and I'd seek a suppression order on it.
38
39 THE COMMISSIONER: Mr Stoljar, what's your position in
40 relation to this proposed suppression order on Mr van de
41 Wiel's address?
42
43 MR STOLJAR: It arises in this context, Commissioner.
44 Mr van de Wiel and I had a discussion and he indicated that
45 certain matters were of particular sensitivity to his
46 client. They relate to factual matters ventilated in the
47 statements upon which or in respect of which various
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1 witnesses have put their evidence before this Commission,
2 but also in relation to inquiries before the Fair Work
3 Commission.
4
5 I had proposed to open, giving you the background to
6 what those specific matters were, Commissioner, to put them
7 in context, and given the sensitivity that Mr van de Wiel
8 had raised with me, I foreshadowed to him that I was going
9 to do that in opening and to give him an opportunity to
10 make any application he wished to make before I said
11 anything publicly about it.
12
13 My position as to whether a suppression order should
14 be made is that matters should be dealt with transparently
15 and openly. There is no suggestion that any adverse
16 findings have been made either here or, for that matter, in
17 the other tribunal which is inquiring into these matters at
18 this stage, and they are just that at the moment,
19 allegations, which this Commission can look into and make
20 findings about it if it so chooses in due course, but this
21 Commission's processes aren't fettered by the fact that
22 some other tribunal is looking into the same matters, nor
23 is there any, we would respectfully submit, precise basis
24 being articulated on which these matters should be kept
25 suppressed at this point.
26
27 THE COMMISSIONER: Yes. What is your response to
28 Mr Stoljar's contentions?
29
30 MR van de WIEL: We are on the eve of an election. We say
31 many of these comments contained within these statements
32 are for no other reason than for political motivation.
33
34 The position in terms of the other tribunal's work is
35 this: a large number of people are the subject of that
36 investigation beyond my clients, Ms Kitching and Ms Asmar.
37 They are obviously concerned about it and about airing in
38 public their names or positions when they are not in
39 a position to defend themselves.
40
41 There is a real concern about the accuracy of the base
42 material from the ACTU which is said to be the basis of
43 a number of allegations, particularly in relation to
44 Ms Kitching.
45
46 If one looks at what's suggested in some of the
47 statements, you will see that it's plainly, to use the old
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1 fashioned expression, hearsay and it's inflammatory.
2
3 I have provided a bundle of correspondence to
4 Mr Stoljar. I appreciate he's busy and he may not have had
5 an opportunity to see it, but the history of these rights
6 of entry matters has been the subject of considerable
7 investigation by Fair Work. We were concerned about the
8 even-handedness of the investigation. We made
9 representations to Fair Work. It was then referred to the
10 President of Fair Work who has in turn referred it to the
11 Vice-President for hearing. It was listed for hearing on
12 8 September.
13
14 Last Friday, before Fair Work, I raised the issue that
15 we were not in a position to proceed because there was to
16 be a proper investigation of the accuracy of the computer
17 records and system in order that a proper assessment can be
18 made of the timing and identity of the participants who
19 have supposedly conducted their tests or not conducted
20 their tests, as the case may be.
21
22 We have a report from computer authorities which
23 indicates, firstly, that they will take approximately
24 another three weeks to finish their tests. The whole
25 I suppose you'd say sound foundation of much of this
26 allegation is not something that I'm in a position to
27 contest fairly. I have already raised with you,
28 Mr Commissioner, the fact that there's a large number of
29 other people who are not represented who have not been
30 called before you.
31
32 Given all those circumstances, we would ask that you
33 do one of three things. One, that you do not hear anything
34 to do with the right of entry and that you leave that to
35 the Fair Work Commission who can more properly,
36 with respect, deal with it because they're in a position to
37 hear all of the evidence. That is not something that would
38 be convenient or easy for you. Secondly, we would be in
39 a position to present the computer evidence which we've
40 disclosed. We have disclosed these tests and so on. It is
41 not something we've just dreamed about. Thirdly, we would
42 have the availability in Melbourne for all of the witnesses
43 and all of the facilities to be inspected and seen.
44
45 My concern about the publicity really is also that of
46 the incipient elections and for that reason we'd seek for
47 that not to be raised publicly at this stage.
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1
2 THE COMMISSIONER: Can you point to any instance, either
3 in conventional litigation, which this isn't, or other
4 contests, where confidentiality has been conferred over
5 either curial or non-curial proceedings merely in order to
6 preserve the position of particular candidates in an
7 election?
8
9 MR van de WIEL: No, I can't, but it isn't just the
10 candidates in the election, it's also the other people as
11 well
12
13 THE COMMISSIONER: I understand how the other people fit
14 in in relation to your argument that if there's a dispute
15 about the conduct of, say, 10 people, it's possible that in
16 another arena an investigation into the conduct of two of
17 those people might be a different inquiry and might not
18 necessarily be as thorough an inquiry, but where do these
19 other people fit in in relation to your election argument?
20
21 MR van de WIEL: They fit in in terms of your
22 consideration factually which would obviously have to
23 embrace an assessment of their credit and their position.
24
25 THE COMMISSIONER: That is your leave everything to the
26 Fair Work Commission argument, that's your first.
27
28 MR van de WIEL: It is, that's my first step.
29
30 THE COMMISSIONER: Yes. Have these other people anything
31 to do with your confidentiality application?
32
33 MR van de WIEL: I don't have specific instructions to act
34 for them in relation to that, no; I don't pretend to.
35
36 THE COMMISSIONER: So the answer is "no".
37
38 MR van de WIEL: No. That is not to say they don't have
39 any rights though.
40
41 THE COMMISSIONER: Your first position is the Commission
42 should not do anything about the matters Mr Stoljar wants
43 to raise with them.
44
45 MR van de WIEL: Yes.
46
47 THE COMMISSIONER: Your second and third positions ask for
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1 an adjournment so that matters can be examined in Melbourne
2 when your computer evidence is ready.
3
4 MR van de WIEL: It can be done in Sydney once we get the
5 computer evidence. I am sorry to talk over you.
6
7 THE COMMISSIONER: That's all right. They are both
8 adjournment arguments?
9
10 MR van de WIEL: They are.
11
12 THE COMMISSIONER: I really have to say that I am not
13 convinced for the necessity of any order to preserve the
14 confidentiality of what it is you wish to say. .
15
16 MR van de WIEL: With the greatest of respect,
17 Mr Commissioner, it is not as if we're interfering with the
18 rights of the free press in terms of publishing material.
19
20 THE COMMISSIONER: I think you are, aren't you? Something
21 is happening behind closed doors --
22
23 MR van de WIEL: No. Well, it's not.
24
25 THE COMMISSIONER: -- which the free press is not free to
26 publish.
27
28 MR van de WIEL: If we don't proceed with it then it isn't
29 proceeding and if it's not proceeding there really isn't
30 anything to publish other than to fill space in newspapers.
31
32 THE COMMISSIONER: I think, in point of logic, your first
33 application is that there be a confidentiality order in
34 relation to your address. I am against you on that. Do
35 you want reasons for it?
36
37 MR van de WIEL: You can give them to me later.
38
39 THE COMMISSIONER: Very well. Is there anything more you
40 want to say about the three positions that you identified
41 at the end, stop or adjourn?
42
43 MR van de WIEL: No.
44
45 THE COMMISSIONER: Very well. Mr Stoljar, what do you
46 want to say about the three positions?
47
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1 MR STOLJAR: In terms of the first, leaving it to Fair Work
2 Commission, there has no basis been elaborated upon which
3 that is either necessary or desirable. The Fair Work
4 Commission can undertake its factual inquiries as can this
5 Commission.
6
7 The second two points really raise questions about the
8 convenience of different forums or the presentation of
9 additional evidence. Those are both matters that can be
10 dealt with in due course. If it is more convenient to deal
11 with a further tranche of hearings if, Commissioner, you
12 are convinced that there needs to be one and that should
13 take place in Melbourne, then that is something we can deal
14 with. If my friend makes out a case for bringing more
15 evidence in relation to computer issues, then, again,
16 that's something that you can deal with, Commissioner. It
17 doesn't need to inhibit the continuing of the hearing
18 today, particularly given that witnesses have come up from
19 Melbourne.
20
21 True it is that those witnesses say that they wish to
22 have their own legal representatives here if they're to be
23 cross-examined, but one way forward of dealing with that
24 would be for simply their examination to proceed by counsel
25 assisting and for cross-examination to be deferred to,
26 again, a later date in Melbourne, if that's the most
27 convenient course.
28
29 THE COMMISSIONER: Mr van de Wiel submitted that it was
30 quite an unfair situation in view of the extended media
31 attention. He says, in effect, his clients' enemies get
32 their retaliation in first and then it's only after some
33 time that it can be qualified or refuted. Is there any
34 particular answer to that argument?
35
36 MR STOLJAR: It is the case, Commissioner, that there will
37 be a gap between what might conventionally be described as
38 the evidence-in-chief and the cross-examination. How much
39 practical significance that has in the context of the
40 impending election is very difficult to assess. Certainly
41 from this Commission's point of view, we don't have any
42 evidence about what's precisely occurring in respect of
43 that election.
44
45 I should say, Commissioner, that these allegations
46 don't relate to private affairs. They relate to the
47 performance of professional duties and in that regard they
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1 don't, as we see it, give rise to particular sensitivities
2 of a personal kind, but, in any event, if it is the case
3 that someone wishes to try to take advantage of the
4 evidence-in-chief that comes out today, prior to any
5 cross-examination, I suppose the answer to it is simply
6 that, that no findings have been made at this point and
7 cross-examination will take place at which the evidence
8 will be tested.
9
10 THE COMMISSIONER: When is the election, Mr van de Wiel?
11
12 MR van de WIEL: Just excuse me and I will get the precise
13 dates.
14
15 MR IRVING: If it might assist the Commission --
16
17 THE COMMISSIONER: Yes, Mr Irving.
18
19 MR IRVING: Nominations have opened and closed for the
20 election. The ballot opens on 9 September and the ballot
21 closes on 10 October.
22
23 THE COMMISSIONER: Yes, thank you. Mr van de Wiel, the
24 best laid plans of mice and men oft run agley, but it is
25 not contemplated that there will be evidence taken by the
26 Commission in October; it's planned that it should cease in
27 late September. That means that before the election, your
28 clients' side of the story, if I can put it that way, will
29 have been ventilated.
30
31 MR van de WIEL: But before it is, the alternative version
32 will have already been run through the minds of the voters
33 and it's a bit like why the courts have been particularly
34 keen to muzzle the media in terms of concepts, in terms of
35 accused people. We are dealing with a much --
36
37 THE COMMISSIONER: I am sorry, could you just repeat that
38 submission?
39
40 MR van de WIEL: Courts have often muzzled media in terms
41 of allegations against accused people. My clients have
42 come here today as accused people. This material will be
43 rampant in the hands of their political enemies through the
44 media and today we're not just dealing with the newspapers;
45 we're dealing with electronic media of a considerable
46 degree which runs rampant through these sorts of
47 organisations and through the union bodies: it's just
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1 unfair.
2
3 THE COMMISSIONER: Just going to another matter, if you
4 have said all you want to say about that particular matter,
5 are you in a position to give me some idea of the
6 chronology in relation to the Fair Work Commission? When
7 did it first interest itself in the topic of rights of
8 entry?
9
10 MR van de WIEL: Mr Commissioner, I have a bundle of
11 correspondence which would assist you with that and I have
12 provided that to Mr Stoljar already.
13
14 THE COMMISSIONER: Thank you. Do you want to tender this
15 material?
16
17 MR van de WIEL: What it is --
18
19 THE COMMISSIONER: I am sorry, Mr van de Wiel, do you want
20 to tender this material in support of your application?
21
22 MR van de WIEL: I would seek to do that.
23
24 THE COMMISSIONER: Yes. Do you object, Mr Stoljar?
25
26 MR STOLJAR: No, Commissioner.
27
28 THE COMMISSIONER: I think normally we mark evidence which
29 is received by reference to the name of a witness. Is
30 there any problem with using Ms Kitching's name for that
31 purpose, calling it Kitching MFI-1?
32
33 MR van de WIEL: Not at all.
34
35 THE COMMISSIONER: That is what this material will be
36 known as.
37
38 KITCHING MFI#1 BUNDLE OF CORRESPONDENCE
39
40 THE COMMISSIONER: Is there anything you want to draw my
41 attention to in it?
42
43 MR van de WIEL: Yes, if I can just walk you through
44 there. We have the direction of President Ross. You will
45 find the directions there about eight or nine pages in.
46
47 THE COMMISSIONER: Yes. Direction to transfer matters?
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1
2 MR van de WIEL: Correct.
3
4 THE COMMISSIONER: Just pausing there. The second
5 paragraph of the preamble says:
6
7 Since September 2013, the Director ... has
8 been inquiring into the circumstances in
9 which entry permits were issued during 2013