And yet our mainstream media conveys an almost opposite impression, and the blogosphere and twitterverse project an even more extreme vision of universal incompetent, corrupt political venality and double-dealing.
Personal smears and attack campaign strategies have long been a staple of politics both here and overseas, basically because they work. People love hearing and retelling malicious stories about others, especially the wealthy and powerful. However, over the last couple of years Australia has experienced a perfect storm of factors conducive to political smear tactics: a hung parliament with an Opposition leader determined to blast his way into an early power takeover by adopting Richo’s “whatever it takes” approach; a disgruntled former Labor leader convinced he’s been unfairly deposed and equally willing to do whatever it takes to get revenge and conceivably even re-take his stolen crown; and a mainstream media experiencing relentlessly declining income and therefore increasingly desperate to attract eyeballs through tabloid sensationalism. The combination has resulted in a toxic political environment not seen since the last days of the Whitlam government.
However, at least from my personal and unusually non-partisan perspective, the remarkable thing about the assorted smear campaigns from both sides is that, with a couple of exceptions, they are either confected or trivial. This post is aimed at demonstrating that proposition in relation to each of the major smear stories of 2012. I’ll take them in chronological order:
Abbott and punching walls
The earliest smear currently being purveyed by partisans is the claim retailed by journalist David Marr that in 1977, when Abbott was defeated for presidency of the University of Sydney Student Representative Council by student left opponent Barbara Ramjan, he approached to within an inch of her nose and then punched both sides of the wall beside her in an act of intimidation.
Whether this actually occurred I have no idea. However, quite apart from the fact that it was 35 years ago when Abbott was 19 years old, if police had been called at the time he would almost certainly have received no more than a sergeant’s caution. Moreover, student politics at the time was quite extreme, with left and right-leaning baby politicians vying with extreme aggression for control of the Sydney Uni SRC and the national Australian Union of Students. Abbott’s alleged behaviour is fairly mild in the context of those times. Only an utterly one-eyed partisan could regard such an event as relevant to contemporary politics.
Gillard and the AWU
By contrast, the Coalition’s attempts to smear Julia Gillard by association with apparent significant defalcations of Australian Workers Union funds in the early 1990s by her former boyfriend Bruce Wilson have achieved a much higher profile and public awareness than David Marr’s allegation against Abbott. Yet there is no evidence whatever that she knew of the alleged fraud or was complicit in it, and indeed any suggestion that she did is patently absurd. The claims against Gillard are much more limited in scope: that she deliberately misled WA corporate affairs officials about the re-election “slush fund” objects of the creatively titled AWU Workplace Reform Association; falsely witnessed a power of attorney signed by Wilson’s former henchman Ralph Blewitt in relation to the purchase of a Brunswick house; and undertook legal work on these matters in an irregular way potentially involving conflicts of interest, conduct which ultimately led to her leaving Slater & Gordon “under a cloud”.
Former head of Western Australia’s anti-corruption watchdog Terry O’Connor QC has opined that Gillard has a case to answer in relation to the incorporation of the slush fund body, a view I also expressed here at Troppo some months ago. However O’Connor also noted that “it was very unlikely any charges would be laid given the elapsed time”. In addition, it appears that all files relating to incorporation of the association have disappeared (not necessarily sinister given how long ago it was), and any case would be heavily dependent on the evidence of self-confessed fraudster Blewitt. Moreover, Gillard’s private 1995 admission to Slater & Gordon partners that the association was a “slush fund” would be unlikely to be admissible in any proceedings against her, and does not in any event prove that she knew this in 1992 when incorporation took place. Even if these events had come to light at the time it is unlikely Gillard would have been charged. It certainly suggests poor judgment and a somewhat lax approach to her professional duties, but we’re talking about events that occurred almost 20 years ago here, and not many of us could honestly claim never to have been guilty of occasional poor judgment in our past, both professionally and personally.
The same goes, though even more so, for Blewitt’s claim that Gillard did not personally witness a power of attorney he signed in relation to the Brunswick house purchase. Gillard has specifically denied the claim and Blewitt is among the least credible witnesses one could imagine.
Finally, in relation to conflicts of interest at Slater & Gordon, it appears that (contrary to my own previous assumption) Gillard did not in fact conduct the conveyancing matter for the Brunswick house purchase. It was actually undertaken by a conveyancing clerk nominally under the control of disgruntled former S & G partner Nick Styant-Browne. Gillard’s judgment in taking on the matter in the first place was certainly poor, as apparently were S & G’s then internal processes for detecting and avoiding conflicts of interest. But none of that can sensibly be regarded as relevant to contemporary politics, nor does it reflect on Julia Gillard’s integrity (which is of course the Coalition’s objective in engaging in all this muck-raking).
Abbott and the Pauline Hanson “slush fund”
Essentially as retaliation for the Coalition’s pushing of the AWU slush fund affair, Labor acolytes including former journalist Margo Kingston have recently been enthusiastically pushing a story from 1998 about Tony Abbott’s creation of the “Australians for Honest Politics Trust”. It was intended to combat Pauline Hanson’s One Nation which then seemed to pose a mortal threat to the Coalition.
The gist of Kingston’s claims is that Abbott wrongfully failed to disclose donors to the “slush fund” as required under Australian electoral laws and misled the AEC about various related questions. She also appears to suggest that the AEC acted wrongfully, perhaps under pressure from the Coalition government of the time.
However, given that the AEC apparently did not regard the matter as sufficiently serious to be worthy of investigation, that it still seems uninterested in pursuing it, and that all this happened long ago, it is hardly the investigative news story of the decade. In fact, given that Hanson’s One Nation was a repellent blot on Australia’s political landscape, and that it could conceivably have posed a threat not only to the Coalition but to the broader political culture, many (including me) are quite thankful that Abbott was able to take resolute steps to stop One Nation in its tracks. Imagine if it had gained the sort of traction and prominence in conservative politics that the GOP Tea Party has achieved in the US. Seems fanciful now but it didn’t at the time.
Craig Thomson and the HSU
I wrote about the Thomson/HSU affair earlier this year. Thomson apparently remains the subject of police investigations but no charges have yet been laid. Fair Work Australia has commenced civil proceedings against Thomson, but quite a few of the points of claim look likely to be struck out under time limitation provisions. It seems unlikely that the civil matter will reach any decisive point before the 2013 election, and even more unlikely that any criminal charges would be resolved by then. Indeed there’s a fair chance that criminal charges may never be laid. Nevertheless, right-leaning bloggers portray Thomson as a major fraudster who is symptomatic of a much wider union movement malaise, and who has survived to date only through expedient Gillard government nobbling of the regulator FWA. By contrast, left-leaning bloggers like Peter Wicks see self-styled HSU “whistleblower” Kathy Jackson as the real villain of the piece and a corrupt Coalition sellout arch-manipulator. Both perspectives look seriously hyperbolic to me.
In a wider sense, however, this scandal is the exception that proves the rule. Unlike the other scandals discussed here, it can’t sensibly be regarded as mere trivial partisan muck-raking. The cumulative evidence of the alleged misdeeds of Craig Thomson, Michael Williamson and Kathy Jackson and her henchmen indicate a very serious problem in the Health Services Union at least, if not the broader governance of the trade union movement. Unless addressed seriously and urgently, these events may provide a plausible pretext for an Abbott government to impose draconian industrial law “reforms” that could seriously undermine trade unions’ vital capacity to effectively represent their members.
Ashby v Slipper
I’ve also written about this smear saga here at Troppo, arguing not only that Ashby’s sexual harassment claims look trivial if not completely confected, but also that his lawyer Michael Harmer’s manipulation of the legal process should be viewed seriously.
However, the ALP and left-leaning bloggers are desperately keen to pin responsibility on assorted Coalition politicians, especially Mal Brough, for what Federal Court Justice Stephen Rares found was a significant abuse of process. The problem with that quest, from both a political and legal perspective, is that it isn’t actually wrongful for politicians to set out to blacken the names of political opponents, as long as they don’t use unlawful means to do so. As the High Court explained in Roberts v Bass 11. KP: Gaudron, McHugh and Gummow JJ at  [↩]:
Publishing material with the intention of injuring a candidate’s political reputation and causing him or her to lose office is central to the electoral and democratic process. There is nothing improper about publishing relevant material with such a motive as long as the defendant is using the occasion to express his or her views about a candidate for election. That purpose is not foreign to the occasion that gives qualified privilege to such publications. The Constitution’s protection of freedom of communication on political and governmental matters would be of little effect if an elector was liable in damages because he or she had the motive of injuring the political reputation of a candidate for election to the legislature. The imputations made against Bass concerned the performance of his duties as a parliamentarian. The publications were aimed at lowering his reputation as a politician and parliamentarian. They were not directed to matters foreign to his political or parliamentary reputation.
Their Honours were discussing the rather narrow relevance of the concept of malice in defeating a defence of qualified privilege in a defamation matter concerning political subjects. The allegations pleaded against Peter Slipper, including those concerning alleged Cabcharge irregularities and 2003 sexual indiscretions with a staffer, were relevant in this wide sense. Somewhat ironically, it might well be that all of the matters pleaded against Slipper in Ashby’s abusive originating application could actually have been safely published under qualified privilege without any need for the protection of the absolute privilege that applies to court documents.
On the other hand, the Cabcharge and 2003 allegations were clearly irrelevant and scandalous for civil procedure pleading purposes in Ashby’s sexual harassment case. However, although Rares J found that Mal Brough was a party to a “combination” (along with Ashby and his fellow employee Slipper staffer Karen Doane) designed to damage/destroy Slipper politically, His Honour did not make any finding that Brough himself had any knowledge that the matters ultimately found to be an abuse of process would be pleaded (as opposed to knowing in general terms that proceedings which would damage Slipper were to be commenced, and in various respects facilitating them). Moreover, there was not even any evidence that could have led to a finding that Brough had any such specific knowledge, and commonsense suggests he almost certainly did not.
In those circumstances, it is quite unlikely in my view that either criminal or civil conspiracy could ever be sustained against Brough, let alone against the various other Coalition politicians who clearly knew in advance that some such proceedings were in the wind:
The tort of conspiracy is committed where two or more defendants combine to do an unlawful act or to do a lawful act by unlawful means, thereby effecting some economic loss on the plaintiff.22. KP: Lonrho Ltd v Shell Petroleum Co Ltd (No 2)  AC 173 at 188. [↩]
Commencing sexual harassment proceedings is certainly not an unlawful act, but the result of Rares J’s decision is that unlawful means were certainly employed in doing so. However, in the absence of any evidence or findings that Brough or any other Coalition politician had any knowledge that unlawful means would be employed, the likelihood that a conspiracy case could be sustained against him is very low.
No doubt that is one reason why the Gillard government appears to have decided not to launch a judicial inquiry into the affair,33. KP: along with the fact that such an inquiry would prolong public focus on the extraordinarily unwise Gillard decision to appoint Slipper as Speaker in the first place. [↩] instead contenting itself with allowing an obscure backbencher to lodge a police complaint which will inevitably go nowhere. In the left-leaning portions of the fevered twitterverse it’s all a massive scandal that is being scandalously ignored by a biased mainstream media.
In the real world, partially engaged voters bemoan the mud-slinging of politicians but pay rapt attention to the juicier aspects of it. However, one suspects they also accept the commonsense if depressing reality of the High Court’s observation that ” [p]ublishing material with the intention of injuring a candidate’s political reputation and causing him or her to lose office is central to the electoral and democratic process”.