Monday, 3 December 2012

Julia Gillard has a case to answer

Julia Gillard has a case to answer

By Anthony Cox -  originally posted Monday, 3 December 2012 at On Line Opinion (Link)

1/85 Kerr St, Fitzroy. (Google maps)
It has been a tumultuous week in Federal parliament. The Opposition has prosecuted a case against the PM she may have committed criminal acts.

The media coverage has been just as extraordinary with a polarisation of views; one end of this continuum says that the PM has no case to answer and that the Opposition's case is like the emperor without any clothes. Some think, like Lenore Taylor, the PM is winning public opinion while others such as Jenny Hocking say it is the Opposition leader who has the case to answer not the PM.

So what are the facts?

We know the PM drafted the application for association. The name of the association is in her handwriting and the objects for that association were taken from Socialist Forum, which the PM had set up.

The declared purpose of the association which the PM drafted was: Development of Changes to Work to Achieve Safe Workplaces.

In addition to drafting the application for association the PM also sent a letter to the WA Commissioner for Corporate Affairs vouching for the bona fides of the association. The PM did this because the Commissioner would not have registered the association if he had known the ostensible real purpose of the association.

The ostensible real purpose of the association was admitted by the PM in her exit interview at Slater and Gordon and confirmed in her press conference on the 23rd August 2012.

In the exit interview the PM said: "it's common practice, indeed every union has what it refers to as a re-election fund, was better to have an incorporated association, a legal entity, into which people could participate as members, that was the holder of the account."

At that press conference the PM rejected the term "slush fund" because she said it was "terminology with a particular overtone". The PM preferred the description "that the purpose of the association was to support the re-election of a team of union officials and their pursuit of the policies that they would stand for re-election on."

This distinction is however unimportant; what is important is that the PM has admitted that she knew the application for association she drafted was based on a purpose which was different from the ostensible real purpose.

That is incontrovertible.

The association was registered in WA. The WA criminal code says at Section 170:
170. False information to officials etc.
(1) Any person who, being required under a written law to give information, whether orally or in writing, to another person, knowingly gives information to the other person that is false in a material particular is guilty of a crime and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for 18 months and a fine of $18 000.
(2) Subsection (1) does not apply if the person is required to give the information on oath or in a statutory declaration.
Subsection 2 does not apply. The issue is whether the declared purpose is a "material particular" within the meaning of S.170.
The fact that the PM had to correspond with the WA Commissioner to vouch for the association would tend to lend weight to the claim that the declared purpose of the association was a "material particular" because if the ostensible real purpose of a "slush fund" had been declared, or even the more benign and preferred "re-election fund", the Commissioner would not have registered the association.

An argument against this conclusion that the declared purpose of the association is inconsistent with the ostensible purpose of a "slush fund" was raised by the media in an interview with George Brandis. The point was that since the objects of the association prepared by the PM were so vague and general it was possible that there was no inconsistency between the declared and ostensibly real purpose of the association. In particular object E which says "To promote, within unions, the adoption of the aims of the association" and object F which says "To support and assist union officials and union members" were presented as mitigating any purpose inconsistency.

In fact the situation is the opposite. The declared purpose is precise and specific as is the ostensible 'real' purpose. Generic objects which are standard to any association cannot reduce the inherent contradiction between two precise and clearly demarcated purposes. In any event object A specifically mentions "safe workplaces"; no object refers to re-election.

There is however another layer to the context of the association which makes the above defence about the PM's alleged conduct superfluous. The PM has admitted the real purpose of the association was not workplace safety but a "slush fund". However it is clear that the association was not used as a "slush fund" either.

The evidence is that substantial funds of the association were not used for "slush fund" purposes because a cheque drawn on the association's account was used to finalise the purchase of a house in the name of Ralph Blewitt with Bruce Wilson bidding to purchase the house via a power of attorney given to him by Blewitt.

That cheque was for $67,722.30 and is drawn on the 18th March 1993.

$67,722.30 was a lot of money in 1993; it was association money not spent on either workplace safety or re-election activities.

One of the issues is it, if the PM then knew that association money was being used in a way which contradicted both the declared purpose of the association which she drafted and the ostensible 'real' purpose of the association, a "slush fund"?

The PM attended the auction with Wilson. The PM says she did not do the conveyance. This may be true; typically large firms have specialist conveyancers to conduct such matters. But there remains circumstantial evidence that the PM had a detailed knowledge of the financial aspects of the house purchase, including the details of the mortgage, its size and interest particulars. She also knew the purchase price.
The PM says she had no knowledge of the mortgage or the cheque drawn on the association. She says it is her word against Blewitt's. But it is not just Blewitt. Former Slater and Gordon partner, Nick Styant-Browne, managing director Andrew Grech and former AWU national secretary and current Fair Work Australia Commissioner, Ian Cambridge all contradict the PM's version of the mortgage and conveyance of the property purchased by Blewitt through his attorney Wilson.

Styant-Browne, Grech and Cambridge are credible witnesses and cannot be dismissed in a shower of denigration as the PM has done with Blewitt.

If it is established that the association was not a "slush fund" as well as not being a workplace safety fund and the PM had knowledge of this, she has misrepresented a material particular twice.

The 2nd misrepresentation would be much more serious than the "slush fund" misrepresentation. It would also open the PM to a charge of misprision as Michael Kirby has noted. The PM's defence to any accusation that she did not notify the authorities of possible fraud to do with the association is "By the time the matters . . . came to my attention, they were already the subject of inquiry and investigation."

But there are cogent inconsistencies with this defence such as union officials not knowing about the association for nearly a year after the PM left Slater and Gordon and terminated her relationship with Wilson.

It is a serious business accusing the elected head of a democracy of criminal offences. So far the dominant defences by the PM have been of the tu quoque variety. More specifically Abbott is a misogynist if he criticises the PM directly or a coward if he does it by proxy through his deputy Ms Bishop, a lawyer of considerably more experience than the PM.

However there is real meat to the complaints against the PM; the overriding criteria should be transparency and the rule of law. Abbott is right to raise these issues and the case to answer remains firmly in the PM's corner.


See also    AWU scandal: the laws that were broken