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ROYAL COMMISSION INTO TRADE UNION GOVERNANCE AND CORRUPTION

Level 19, 55 Market Street, Sydney, NSW, 2000

On Monday, 17 August 2015 at 11.39am

ACTU APPLICATION

Before the Commissioner: The Hon. John Dyson Heydon AC QC

Counsel Assisting: Mr J Stoljar SC Sarah McNaughton SC and Mr Thomas Prince

Instructed by: Minter Ellison, Solicitors

.17/08/2015 Application 1 Transcript produced by DTI

1 THE COMMISSIONER: Notice has been given that an 2 application was to be made. Yes, Mr Newlinds. 3 4 MR CONDON: Before that happens, Commissioner, can 5 Mr Ferguson leave the witness box? 6 7 THE COMMISSIONER: Yes, Mr Ferguson can leave the witness 8 box. It might be an idea just to remain in the precincts 9 of the hearing room for a short time. It may be that you 10 can go away for a while and attend to your no doubt busy 11 affairs, but you can certainly leave the witness box now. 12 13 THE WITNESS: Thank you, Commissioner. 14 15 MR CONDON: Obliged. 16 17 (The witness left the hearing room) 18 19 THE COMMISSIONER: You appear for, Mr Newlinds? 20 21 MR C NEWLINDS: Commissioner, I hold a brief for the 22 Australian Council of Trade Unions, the ACTU. My 23 solicitor, Mr Gordon of Gordon Legal, wrote a letter to the 24 Commission this morning and for the purpose of the 25 application foreshadowed in that letter, I seek leave to 26 appear on behalf of the ACTU. 27 28 THE COMMISSIONER: The letter foreshadows two 29 applications. Do you appear in relation to both of them? 30 31 MR NEWLINDS: I appear in relation to an application to 32 apply for some documents. 33 34 THE COMMISSIONER: My question stands. The letter 35 foreshadows two applications. Do you appear in relation to 36 both of them? 37 38 MR NEWLINDS: No. 39 40 THE COMMISSIONER: You just want to have access to some 41 documents? 42 43 MR NEWLINDS: Correct. 44 45 THE COMMISSIONER: What is your legal entitlement to that 46 production? 47


1 MR NEWLINDS: The ACTU is an unincorporated association. 2 Its affiliated membership comprises various trade unions. 3 My instructions are that each of the unions who has 4 appeared as an interested person, or otherwise, before this 5 Commission is an affiliated member of the ACTU. 6 7 THE COMMISSIONER: But you don't appear for these 8 affiliated members who have appeared before the Commission? 9 10 MR NEWLINDS: I don't. 11 12 THE COMMISSIONER: They, of course, having appeared before 13 the Commission have, in certain respects, very considerable 14 rights, but your client hasn't appeared before the 15 Commission. 16 17 MR NEWLINDS: That is true. 18 19 THE COMMISSIONER: It can't have the same rights, can it? 20 21 MR NEWLINDS: It doesn't have the same rights, but it is 22 considering whether to make the second foreshadowed 23 application and in those circumstances the real question is 24 would it have standing to make that application. If it 25 does, or if it is arguable that it does, then this 26 application is akin, I suppose, to preliminary discovery. 27 28 THE COMMISSIONER: I think we have to bear in mind 29 a number of factors. One is that this is a Commonwealth 30 Royal Commission with national reach, as it were. Apart 31 from the Governor-General, State Governors have issued 32 Terms of Reference to it. It has been going on for quite 33 a long time. It has to report by the end of the year. We 34 have, as you can see around you - you are not intimately 35 familiar with the details - some evidence being taken in 36 relation to some financial activities by or affecting the 37 CFMEU. There are quite intense factual controversies. You 38 just saw Mr Ferguson leave the box. He has been there for 39 part of three days and it is not the world against 40 Mr Ferguson, but the world, as it were, is against itself. 41 Each of the legal representatives in the room represents 42 a client who has some point of conflict with someone else's 43 client on a factual matter. 44 45 The history of the matter, I think, is that Mr Stoljar 46 received a message to ring you this morning and he was told 47 the letter had been sent requesting production of


1 documents. In fact, no such letter had been sent, so 2 three-quarters of an hour or so was spent while everyone 3 ran around wondering why the Commission had managed already 4 to lose a letter which had been sent that morning. 5 6 MR NEWLINDS: No, I am so sorry, that was entirely my 7 fault. 8 9 THE COMMISSIONER: I am just narrating the events, I am 10 not ascribing blame or praise to anyone. Eventually, 11 I think you and Mr Stoljar managed to establish that the 12 letter would shortly be sent. It arrived shortly before 13 the time set down for the hearing of today's matter, which 14 is 10 o'clock, which is the usual time at which public 15 hearings take place and that I think is a notorious fact. 16 17 Mr Stoljar, do you have any submission on the position 18 so far as one has been achieved so far? 19 20 MR STOLJAR: My only submission at this stage is that the 21 question of standing is one that needs to be ventilated and 22 clearly understood. My friend I think has indicated that 23 his position in respect of the second foreshadowed 24 application may depend upon the outcome of the first 25 application and there is a question as to whether his 26 client would have standing to bring the second application. 27 My friend may be able to cure the question of standing 28 without any great difficulty by getting some clear 29 instructions from those members of his client who are 30 affected by the Commission's proceedings. He hasn't 31 indicated that at the moment, but that is one potential way 32 forward. 33 34 MR NEWLINDS: I can say this, and I am sorry, can I just 35 say at the outset there is no intention to disrupt the 36 orderly workings of the Commission any more than is 37 necessary, so I can make this application at any time that 38 is more convenient to you in the next few days. That is 39 the first [sic] point. 40 41 The first point is what Mr Stoljar said is right, 42 there is an obvious way that I can cure or just jump over 43 an argument as to standing and I have been working on that 44 last night and this morning but as yet I don't have 45 executed pieces of paper. It is possible that we could get 46 around it that way, but standing here at the moment, there 47 is an argument about standing which you would have to deal


1 with. 2 3 THE COMMISSIONER: Let me just indicate my tentative 4 position. If you had told me, for example, that you were 5 representing the CFMEU, the AWU, the HSU in its various 6 atomised components, CEPU and other unions who in greater 7 or lesser parts have spent time here, then one could make 8 a decision about releasing the documents. They are 9 documents in a very short compass. They could easily be 10 understood - and I am not being disrespectful - by you with 11 your considerable experience and by anyone else who is 12 likely to be involved in instructing you, and then we could 13 hear an application for disqualification. If that 14 application for disqualification were rejected, you would 15 have remedies. If the application were acceded to, the 16 position is different. 17 18 I think it is of some relevance to know what actual 19 orders would you want assuming you got the documents and 20 then proceeded to make your second application? What is 21 the order that the ACTU wants? 22 23 MR NEWLINDS: It doesn't have a view on that as yet. 24 25 THE COMMISSIONER: Don't you think that is rather 26 irresponsible, to come before a busy body of inquiry? 27 I can understand or at least for the sake of argument 28 I will accept that it may not be in a position to give you 29 instructions yet, but surely there must be some, at least, 30 idea as to what sort of relief might be sought. What is 31 the point of this time being taken up unless they have some 32 conception in their minds of the relief? 33 34 MR NEWLINDS: The conception would be an application for 35 you to recuse yourself from further sitting on the 36 Commission, but I say that without instructions and without 37 having given advice as to whether such an application would 38 be open or appropriate. 39 40 THE COMMISSIONER: There are large numbers of natural 41 persons who have appeared before this Commission who are 42 not members, affiliated or otherwise, of the ACTU. You 43 want an order affecting their position, do you? 44 45 MR NEWLINDS: Yes, but that is uninstructed and 46 uninformed. 47


1 THE COMMISSIONER: I think I have recorded some factors 2 which might cause people to think that what is happening is 3 highly unsatisfactory. Let's begin by putting before the 4 world the letter that you referred to. 5 6 MR NEWLINDS: Yes. That is a letter from Gordon Legal to 7 you, Commissioner, dated 17 August 2015. I have an extra 8 copy if you want one to tender. 9 10 THE COMMISSIONER: Let's call that ACTU MFI-1. 11 12 ACTU MFI-1 - LETTER FROM GORDON LEGAL TO THE COMMISSIONER 13 DATED 17/08/2015 14 15 THE COMMISSIONER: You know the letter of course, 16 Mr Stoljar. Do you have a bundle of documents that has 17 been assembled? 18 19 MR STOLJAR: Yes, I do, Commissioner. 20 21 THE COMMISSIONER: I think what we will do is for you to 22 hand that to Mr Newlinds and he can look through it. 23 24 MR STOLJAR: Commissioner, I have handed Mr Newlinds 25 a copy of those documents. 26 27 THE COMMISSIONER: Just as an aid to reading it, 28 Mr Newlinds, there is a fair bit of repetition in it. It 29 consists, I think, almost entirely of emails and instead of 30 the emails taking you from backwards to now, these ones are 31 organised so we start in the past and progress to the 32 present. As you read through them, for example, if you go 33 to tab 2, you only have to worry about the first inch or so 34 on the page because what appears on the rest of the 35 page you already will have read. We will just let you read 36 through them. Mr Stoljar, do you have more than one copy? 37 38 MR STOLJAR: Yes, Commissioner. 39 40 THE COMMISSIONER: You have an instructing solicitor, 41 I think, present, do you, Mr Newlinds? 42 43 MR NEWLINDS: I do, Commissioner. 44 45 THE COMMISSIONER: Perhaps he could look through them too. 46 I should indicate that if any other legal representative in 47 the room and their clients, since they are not actually


1 involved in this application, wish to leave, they are 2 entirely at liberty to do so but not obliged to. 3 4 MR AGIUS: Mr Commissioner, as you would aware, we have 5 leave to appear for the CFMEU. 6 7 THE COMMISSIONER: You do 8 9 MR AGIUS: In that capacity, I support my learned friend's 10 application for access to the documents. 11 12 THE COMMISSIONER: Do we have a copy of the documents for 13 Mr Agius to look at? 14 15 MR STOLJAR: I don't presently, Commissioner. I can no 16 doubt have other copies made. 17 18 THE COMMISSIONER: I think it is rather important. Could 19 someone go and get some. You can look through mine, if you 20 like, Mr Agius. They are unmarked. Would you like that 21 for the time being? 22 23 MR AGIUS: I am content to wait. Thank you, 24 Mr Commissioner. 25 26 THE COMMISSIONER: Could you give that to Mr Agius, 27 please. 28 29 MR AGIUS: Thank you, Mr Commissioner. 30 31 MR NEWLINDS: I have read those, Commissioner. I can't 32 say I have absorbed them in detail but I have certainly 33 read them and I understand that is a wider conspectus of 34 documents than my instructors had previously seen. 35 36 THE COMMISSIONER: Mr Newlinds, I have the highest 37 admiration for your powers and that is not intended to be 38 a disrespectful remark. Why don't you read through them 39 again more slowly and broaden or narrow, perhaps, your 40 perspective on them. 41 42 MR NEWLINDS: Yes. 43 44 THE COMMISSIONER: Just take a seat and read through them 45 while Mr Agius is reading through them. Mr Agius, a copy 46 has arrived for you, so if I could have mine back we will 47 be all square. There is no-one else present, is there, who


1 represents any trade union? Very well. 2 3 MR NEWLINDS: Thank you, Commissioner, I have read those 4 documents again. 5 6 THE COMMISSIONER: Do you have any application to make? 7 8 MR NEWLINDS: No, I don't. 9 10 THE COMMISSIONER: You have no application? 11 12 MR NEWLINDS: Is my understanding correct that these 13 documents would represent a full answer to the request in 14 our letter? 15 16 THE COMMISSIONER: I have heard more tactful requests. 17 Let me take your letter, which is ACTU MFI-1, the requests 18 which are made in that letter are not numbered. 19 20 MR NEWLINDS: Yes. 21 22 THE COMMISSIONER: I have numbered my copy. I have 23 numbered as 1 the second-last line: 24 25 1. All documents recording the initial 26 invitation to you to attend the event. 27 28 They have been produced: 29 30 2. A copy of any document received by you 31 in 2015 promoting the event. 32 33 That category has been produced: 34 35 3. A copy of the attachment to the Burton 36 email. 37 38 That has been produced: 39 40 4. All relevant communications passing 41 between you and your assistant. 42 43 None. 44 45 5. All relevant communications passing 46 between you and the Federal Government. 47


1 None. 2 3 6. Copies of all drafts of your proposed 4 speech for the Liberal Party Fundraiser, 5 including all marginalia. 6 7 I think you will find that on page 27 of the green folder. 8 9 MR NEWLINDS: The handwritten note, yes, thank you. 10 11 THE COMMISSIONER: It is very clear. 12 13 7. All other communications between you 14 and Mr Burton and any other organiser of 15 the function. 16 17 None. 18 19 8. All records of communications between 20 you or the Commission and the media 21 relating to the release to the media of the 22 documents referred to above. 23 24 I think behind tabs 13 and 14 you will find the documents 25 that answer that. 26 27 9. Records of all communications between 28 you and the Commonwealth Government 29 concerning the event, particularly those 30 which enabled the Prime Minister and the 31 Attorney-General to answer questions about 32 the event. 33 34 None. 35 36 10. Any other documentation you believe is 37 relevant to the issues raised in this 38 correspondence. 39 40 None. 41 42 MR NEWLINDS: Thank you very much, Commissioner, and 43 I have no application to make at this time. 44 45 THE COMMISSIONER: For disqualification? 46 47 MR NEWLINDS: Correct.


1 2 THE COMMISSIONER: What I am going to do is adjourn for 3 half an hour so you can get instructions as to whether you 4 are to make the application or not. 5 6 MR NEWLINDS: It won't happen within half an hour. 7 8 THE COMMISSIONER: When will you have them? 9 10 MR NEWLINDS: I think I would need at least 24 hours. 11 12 THE COMMISSIONER: I can't accept that, Mr Newlinds. 13 I think an application of this type is rather important. 14 15 MR NEWLINDS: I think it is important as well which is why 16 I want to consider the position before I give any advice. 17 18 THE COMMISSIONER: Mr Newlinds, this is not satisfactory. 19 If half an hour is too short a time, I will adjourn until 20 1pm. 21 22 MR NEWLINDS: If the Commission pleases. I should just 23 complete the record. As we have been standing, I have been 24 handed three documents entitled, "Authority" which appear 25 to be from three trade unions. Should I tender those? 26 27 THE COMMISSIONER: Yes, I think that is a good idea. 28 29 MR NEWLINDS: I have shown them to Mr Stoljar. 30 31 THE COMMISSIONER: While we are tendering things, let's 32 call the documents produced MFI-2 and the three 33 authorities, essentially, from the CEPU, the Health 34 Services Union and the CFMEU, that is, Mr Michael O'Connor 35 National Secretary of the CFMEU, Mr Chris Brown, National 36 Secretary Health Services Union, and Michael John Wright, 37 National Legal Officer of the CFMEU, they together will be 38 ACTU MFI-3. 39 40 MFI-2 - DOCUMENTS PRODUCED IN APPLICATION 41 42 MFI-3 - THREE AUTHORITIES FROM THE CEPU, THE HEALTH 43 SERVICES UNION AND THE CFMEU 44 45 THE COMMISSIONER: I will adjourn now until 12.15, at 46 which point we will resume with Mr Ferguson, but we will 47 return to this matter at 1pm.


1 2 SHORT ADJOURNMENT 3 4 THE COMMISSIONER: Just to aid clarity of understanding, 5 the three so-called authorities which have been marked ACTU 6 MFI-3 grant authority to the ACTU to represent the three 7 Unions named in order to see whether a proper basis exists 8 for an application for disqualification on the basis of 9 bias or reasonable perception of bias, and I take the word 10 "bias" to mean actual bias. 11 12 Mr Agius, in view of the fact that Mr O'Connor has 13 granted this authority, I think I will have to, so to 14 speak, withdraw your authority to appear on this 15 application. We can't have two Senior Counsel seemingly 16 deriving separate streams of authority to appear. 17 18 The other thing I wanted to do was this. I wanted to 19 just give some contextual background to the material which 20 has been marked ACTU MFI-2. 21 22 To the best of my recollection, I had one or more 23 informal discussions several years ago with the coordinator 24 of the Sir Garfield Barwick Address concerning the 25 possibility of delivering the address at some future time. 26 That address is something which, as I understand it, has 27 been delivered annually for some years. 28 29 On 10 April 2014 a further approach was made orally to 30 me in the Banco Court after I had delivered a lecture known 31 as the Acton Lecture. I indicated to the person who made 32 the approach that I would be amenable to delivering the 33 Sixth Annual Sir Garfield Barwick address in August 2015 if 34 the Commission had completed its work. One of the emails 35 which is in ACTU MFI-2 confirms that. That email went on 36 to say this: 37 38 The writer was the chair of one of the 39 lawyer branches of the Liberal Party NSW 40 Division. One has a focus on policy, the 41 other on professional engagement. I am 42 chair of the latter and Susannah McClaren, 43 currently an in-house solicitor and 44 formerly at [a particular firm of 45 solicitors] is chair of the other. We work 46 jointly. Although we are formally a Branch 47 of the Party, our aim is to be


1 a liberal-minded "bridge" to the profession 2 rather than overtly party political 3 (although we trust we show the party in 4 a favourable light!). We do have some 5 member only Branch meetings but most events 6 are open to those who wish to attend and we 7 have a large non-member database from 8 attendees at previous events whom we invite 9 to open events. There is a broad range of 10 people, mainly lawyers, from all parts and 11 sizes of the profession. We organise 12 forums on matters of professional and legal 13 policy interest. Topics have included 14 bail, arbitration reform, PPSA, right to 15 silence, workers' comp reforms, family 16 provision with revenue law and sentencing 17 potential future topics. These to date 18 have attracted high quality presenters and 19 enabled an engaged audience prepared to 20 comment and participate. 21 22 The email then went on to describe some of the earlier 23 Annual Sir Garfield Barwick Addresses. 24 25 In that passage the email said: 26 27 The theme is the lecturer's choice, with 28 focus on a matter of current and/or 29 historical interest in areas of 30 professional political involvement or 31 interest for Barwick. 32 33 At the time of the meeting and the email of 10 April, the 34 Letters Patent require delivery of the final report to the 35 Governor-General on or by 31 December 2014. The email of 36 10 April did not state, and I did not understand from it, 37 that the Sir Garfield Barwick Address was in any sense 38 a fundraiser for the Liberal Party. The email stated that 39 it was organised by a body which I was told was: 40 41 "One of the lawyer branches of the 42 Liberal Party NSW Division" which had 43 a "focus ... on professional engagement." 44 45 I did not give any attention to the topic of the 46 Sir Garfield Barwick Address for the remainder of 2014. In 47 approximately March 2015 I was contacted again by the


1 coordinator of the Sir Garfield Barwick Address. At that 2 time I was carrying out the duties of an academic post at 3 Oxford Law School. I receive many invitations to speak at 4 public functions. When I received the contact by email 5 from the coordinator, I remembered that I had agreed to 6 give the Sir Garfield Barwick Address in August 2015. 7 However, in March 2015 I overlooked the connection between 8 the person or persons organising the event and the Liberal 9 Party which had been stated in the email of 10 April 2014. 10 11 I also overlooked the fact that my agreement to speak 12 at that time had been conditional on the work of the 13 Commission being completed before that time. In fact, the 14 reporting date had been extended in October 2014 to 15 31 December 2015. 16 17 At about that time, that is to say in March or shortly 18 afterwards, the date of the address was fixed for 26 August 19 2015. I proposed, after considering some suggestions, to 20 speak on the following topic, "The judicial stature of 21 Chief Justice Barwick viewed in a modern perspective". 22 I planned to analyse the general nature of the High Court 23 and its methods of operation under him, to consider certain 24 legal doctrines then regarded as the law which have now 25 fallen from favour, other principles that have survived and 26 been developed, and various skills and techniques which the 27 Chief Justice personally and the other High Court judges 28 employed during his tenure of office. 29 30 On 12 June 2015 I received an email from the organiser 31 to which was attached a copy of the invitation to the 32 address, that being a three-page document, as I say, 33 attached to the email, a one-page document. In the usual 34 course, my personal assistant printed out a copy of the 35 email and the attachments and provided them to me. 36 I glanced through the email noting the date, time and place 37 of the dinner. I did not read the attachments, having 38 noted in the one-page email of 12 June that I was to be the 39 guest of the organisers. 40 41 Following 12 June I was deeply engaged in Commission 42 business. I did not give any consideration to the 43 Sir Garfield Barwick Address. I did not prepare a written 44 paper. I did prepare rough notes which I have produced 45 pursuant to the requests of the applicant in its letter of 46 today's date which is ACTU MFI-1. 47


1 On 12 August 2015 the coordinator of the Sir Garfield 2 Barwick Address sent me an email which has previously been 3 released by the Commission. I was engaged either in 4 hearings or in other duties until the following morning. 5 At that time I caused my personal assistant to send an 6 email which included the following words: 7 8 If there is any possibility ... 9 10 -- those two words emphasised -- 11 12 ... that the event could be described as 13 a Liberal Party event, he will be unable to 14 give the address at least whilst he is in 15 the position of Royal Commissioner. 16 17 Shortly after the dispatch of that email it was made plain 18 that I would not be giving the address. 19 20 My understanding at all times has been that the dinner 21 was not to be a fundraiser. Those are the matters of 22 background I wanted to state so that the contents of MFI-1 23 can be more clearly understood. I think in view of the 24 time that has passed, Mr Newlinds, it might be best if we 25 return to this at 1.30. 26 27 MR NEWLINDS: Of course, I will, but I can say now I will 28 not have instructions one way or the other as to making an 29 application. 30 31 THE COMMISSIONER: Mr Newlinds, you are very able and 32 experienced barrister. You understand the relevant law on 33 this. 34 35 MR NEWLINDS: I do. 36 37 THE COMMISSIONER: The facts are in a very small compass. 38 You will be able to work out the content of some advice you 39 might wish to give to your four clients. Let us return at 40 1.30 and examine what the position is then. 41 42 THE APPLICATION WAS ADJOURNED TO 1.30PM 43 44 UPON RESUMPTION: 45 46 THE COMMISSIONER: Yes, Mr Newlinds? 47


1 MR NEWLINDS: My application is to be excused. 2 3 THE COMMISSIONER: Your application is, I am sorry? 4 5 MR NEWLINDS: To be excused. 6 7 THE COMMISSIONER: From further attendance forever? 8 9 MR NEWLINDS: For the day. I have no instructions to make 10 any application. 11 12 THE COMMISSIONER: Mr Stoljar? 13 14 MR STOLJAR: This is degenerating into a shambles, 15 Commissioner, with respect, on the part of the ACTU. I am 16 going to tender some documents. 17 18 First of all, a media release of 13 August 2015; 19 secondly, a letter from the ACTU to the Prime Minister of 20 14 August 2015. 21 22 THE COMMISSIONER: Just before we proceed, the first one 23 will be ACTU MFI-4. 24 25 ACTU MFI-4 - MEDIA RELEASE OF 13/08/2015 26 27 THE COMMISSIONER: The second one, the letter of 14 August 28 2015 will be ACTU MFI-5. 29 30 ACTU MFI-5 - LETTER FROM THE ACTU TO THE PRIME MINISTER OF 31 14/08/2015 32 33 MR STOLJAR: If I could deal with those in order, 34 Commissioner, the media release, MFI-4, includes public 35 statements as long ago as last Thursday, the 13th, to the 36 effect that the Commissioner's position "appears biased, 37 partisan and flawed". 38 39 Turning to MFI-5, that is the letter of 14 August 40 2015, the ACTU has sought fit to write to the 41 Prime Minister, no less, saying that the Royal Commission 42 has no claim to independence, impartiality or adherence to 43 due process and must be terminated. 44 45 THE COMMISSIONER: Terminated immediately. 46 47 MR STOLJAR: Immediately. It says further on the page,


1 affirmatively, that the Commissioner's conduct "fails the 2 apprehended bias test." That was done on Friday. 3 4 Either the ACTU is of that position or it wasn't. It 5 saw fit to release this letter publicly as, of course, it 6 did the media release as well. It then issued this 7 morning, Commissioner, at about the time the proceedings 8 started a very detailed request for documents. That 9 request has been complied with. 10 11 This is a National Commission, as you have indicated 12 this morning, Commissioner. It is engaged in a busy round 13 of hearings. It needs to resolve its position as soon as 14 possible. 15 16 There needs to be some certainty. The documents which 17 have now been produced in answer to the letter which was 18 sent this morning comprise, in number only, a small number 19 of documents. 20 21 Mr Newlinds, and those instructing him, are in a 22 position, in my respectful submission, to absorb and 23 comprehend those documents. The issues have been well 24 canvassed and indeed on Friday, as I have indicated, the 25 ACTU was in a position to assert categorically that your 26 conduct failed the apprehended bias test. 27 28 Commissioner, you gave the ACTU this morning to 29 reflect on the documents in a period of time and now they 30 come back, and the only application is that Mr Newlinds be 31 excused. Commissioner, it smacks of grandstanding, with 32 greatest of respect. In my submission, this matter needs 33 to be dealt with. 34 35 THE COMMISSIONER: From whom do you get your instructions, 36 Mr Newlinds, if you don't mind telling me that? 37 38 MR NEWLINDS: Mr Gordon. 39 40 THE COMMISSIONER: Yes, but from whom do the lay 41 instructions come? 42 43 MR NEWLINDS: They pass through a Mr Oliver but I 44 understand they come from the constituent entity. 45 46 THE COMMISSIONER: Where is Mr Oliver? 47


1 MR NEWLINDS: He's here somewhere. 2 3 THE COMMISSIONER: Is he in the hearing room? 4 5 MR NEWLINDS: I believe so. 6 7 THE COMMISSIONER: Yes. That seems to remove one obstacle 8 to getting instructions. 9 10 MR NEWLINDS: No, it doesn't. 11 12 THE COMMISSIONER: You put that, of course, respectfully. 13 14 MR NEWLINDS: I do. 15 16 THE COMMISSIONER: I don't quite understand that point. 17 If, for example, Mr Oliver had just gone into hospital and 18 was under a general anaesthetic, then of course your 19 position would be impeccable. 20 21 MR NEWLINDS: May I explain the point? 22 23 THE COMMISSIONER: Can I just conclude by saying this: 24 that if Mr Oliver is here, it is possible to get 25 instructions from him. If he has difficulties in getting 26 instructions from others, this is just a possible point of 27 view I am putting to you, he should have come armed with 28 them this morning to pass on to you. 29 30 MR NEWLINDS: You say that. 31 32 THE COMMISSIONER: I do say that. That is a possible 33 view, is it not? 34 35 MR NEWLINDS: I don't accept that's a reasonable view. 36 37 THE COMMISSIONER: You don't accept it is even a possible 38 view. Why not? 39 40 MR NEWLINDS: Because, firstly, Mr Oliver, as you well 41 know, Commissioner, does not have authority himself. 42 43 THE COMMISSIONER: I don't know anything about that at 44 all. We haven't been looking into the ACTU, we have been 45 looking into the affairs of particular Unions and 46 particular individuals. 47


1 MR NEWLINDS: Commissioner, I don't want to be 2 disrespectful, but you have just articulated a number of 3 propositions which seem to indicate an understanding as to 4 how the ACTU would operate. 5 6 THE COMMISSIONER: No. 7 8 MR NEWLINDS: No? 9 10 THE COMMISSIONER: No. 11 12 MR NEWLINDS: May I respond to Mr Stoljar's submission? 13 14 THE COMMISSIONER: Yes, by all means. 15 16 MR NEWLINDS: Because, if I may say so, the last thing 17 I have tried to do is to grandstand or make this a farce, 18 the very last thing I have tried to do. 19 20 Now, I have come along to make an application to 21 obtain access to documents in the context of making it 22 entirely clear that if the documents were produced, we 23 would then need some time to consider it. The proposition 24 then becomes: you have now got the documents, you have had 25 a reasonable time to consider them, and give advice, and 26 receive instructions, and formulate a proper legal 27 application. In my submission, that conclusion is just not 28 open. 29 30 I haven't had sufficient time to give considered 31 advice. I haven't had sufficient time to receive 32 instructions, even if I had, and I haven't had sufficient 33 time to work up what must be considered, and I certainly 34 consider it to be a very serious application. 35 36 If what is being said here is that I should have come 37 along here, armed with instructions to bring the 38 application, and ready to make it, that misses point. 39 Until shortly after 11.30 this morning, we didn't have all 40 the information. We now have the information and there is 41 new light thrown on the facts which I have to consider and 42 give advice about. 43 44 To force someone on in those circumstances, in my 45 submission, would be unfair in the sense of a denial of 46 natural justice. 47


1 I do not have instructions to make an application 2 today. If I receive such instructions, I will bring it. 3 I am well cognisant of the doctrine of waiver and where it 4 fits into this area of the law, and if it is being 5 suggested that if I don't make it now I will have forever 6 waived it, my submission would be that would be wrong as a 7 matter of law. 8 9 THE COMMISSIONER: Who said anything about that? 10 11 MR NEWLINDS: I don't know. I don't quite -- 12 13 THE COMMISSIONER: Who said anything about that? 14 15 MR NEWLINDS: No-one said anything about that, but the 16 proposition from Mr Stoljar seems to be that I am 17 grandstanding, intentionally creating a farce, in 18 circumstances where I should be put upon, presumably by 19 you, to bring an application that I don't have instructions 20 to make. 21 22 THE COMMISSIONER: How many hours or days will it take for 23 you to carry out all the steps that you outlined a little 24 earlier? 25 26 MR NEWLINDS: A week would be sufficient, and I could do 27 it quicker than that if required. 28 29 THE COMMISSIONER: I think we will adjourn until 4pm and 30 we will reconsider the matter then after Mr Ferguson 31 hopefully has finished his evidence. The hearing is now 32 adjourned. 33 34 (Hearing adjourned to 4pm) 35 36 THE COMMISSIONER: Mr Newlinds, correct me if I am wrong, 37 but I understand there is consent between you and 38 Mr Stoljar that in the event you wish to, or receive 39 instructions, pursue an application for disqualification, 40 that could happen on Friday at 10am and that you could put 41 on some written submissions by 2pm on Thursday. 42 43 MR NEWLINDS: That is correct. 44 45 THE COMMISSIONER: That reflects an agreement? 46 47 MR NEWLINDS: It does, if that is convenient to you.


1 2 THE COMMISSIONER: I do apologise to the people who 3 perhaps I have failed to - is there anyone present who 4 wishes to announce an appearance that has not yet been 5 announced? Sorry, Mr Newlinds. 6 7 MR NEWLINDS: We have that agreement. If that is 8 convenient to you, then we can proceed upon that basis. 9 10 There is just one procedural matter I wanted to raise 11 it really flows from something you said earlier today. 12 There may well be other people who have an interest in this 13 application. 14 15 THE COMMISSIONER: I have a -- 16 17 MR NEWLINDS: You have that covered? 18 19 THE COMMISSIONER: Nothing is covered, Mr Newlinds. 20 I will read out three draft directions and they are open 21 for discussion by counsel. 22 23 The first of them is as follows: 24 25 1. In the event that Mr Newlinds receives 26 instructions to pursue an application for disqualification, 27 the ACTU is directed to file written submissions in support 28 by 2pm on Thursday; 29 30 2. The hearing is listed conditionally for Friday, at 31 10 am. 32 33 3. Any Union, or other person to whom authorisation 34 to appear at this Commission has been granted and 35 who wishes to pursue an application for disqualification is 36 also directed to file written submissions in support by 2pm 37 on Thursday. 38 39 Does that cover what you had in mind? 40 41 MR NEWLINDS: I may be assuming too much, but I would 42 assume the Unions would be reading from the same page. I 43 was just wondering if there might be some interested people 44 out there who would take the contrary view who might want 45 to be heard? 46 47 THE COMMISSIONER: It is always nice to be the object of


1 interested people out there. The people who interest me 2 are the people who have applied for authorisation to appear 3 before the Commission. 4 5 MR NEWLINDS: I am so sorry, I meant interested people. 6 7 THE COMMISSIONER: There may be other people in the 8 future, assuming that there is no disqualification, who 9 might object. They can object when they, as it were, are 10 identified by their reaction to being granted 11 authorisation. 12 13 MR NEWLINDS: Thank you, no. 14 15 THE COMMISSIONER: Is there any other practical matter? 16 17 MR NEWLINDS: No. Thank you. 18 19 THE COMMISSIONER: Is there anything you wish to say, 20 Mr Stoljar? 21 22 MR STOLJAR: No, nothing further, Commissioner. 23 24 THE COMMISSIONER: I make the following directions: 25 26 1. In the event that Mr Newlinds receives 27 instructions to pursue an application for 28 disqualification, the ACTU is directed to file 29 written submissions in support by 2pm on 30 Thursday. 31 32 2. The hearing is listed conditionally for Friday at 33 10am. 34 35 I will just amend slightly what I read out before. 36 37 3. Any person to whom authorisation to appear at 38 this Commission has been granted, and who wishes 39 to pursue an application for disqualification, is 40 also directed to file written submissions in 41 support by 2pm on Thursday. 42 43 There is a theoretical possibility, Mr Newlinds, that 44 someone may want to come along and oppose it. Let them 45 come. 46 47 MR NEWLINDS: Of course, if we form a view not to bring an


1 application, we will let you know the moment that happens. 2 If we make a decision not to bring an application, if that 3 happens before Thursday, we will let you know immediately. 4 5 THE COMMISSIONER: Yes, that would be helpful. We do have 6 quite a lot of things to do this week and a little bit of 7 juggling may have to take place but hopefully not very 8 much. Thank you for that thought. 9 10 The public hearing will resume at 11am tomorrow, 18 August. 11 12 AT 4.25PM THE ACTU APPLICATION HEARING ADJOURNED 13 ACCORDINGLY 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47


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