Perils of Pauline continued

As today’s Australian notes, bail applications and appeals against refusal of bail by One Nation founders Pauline Hanson and David Ettridge were yesterday refused by Queensland’s Court of Appeal.

What I hadn’t realised (not being a criminal law specialist) until I did some quick research just now, is that there appears to be a divergence of opinion on the High Court as to the principles that should apply to the grant of bail after conviction of a serious offence. The Court of Appeal’s reasons for decision also suggest quite strongly that Hanson and Ettridge’s substantive appeal might well succeed, and that even if it doesn’t there are strong arguments that the 3 year sentence imposed by the trial judge was excessive.

The political implications of such a decision on appeal are obvious: Hanson would be free to participate in the forthcoming federal election campaign with the status of a vindicated martyr. The One Nation factor would then be likely to be very powerful indeed, especially in Queensland. If I was John Howard, I’d be thinking very seriously about calling an early election before that can occur, which probably means before Christmas. Moreover, if I wasn’t able to engineer a double dissolution election before Hanson is released, I wouldn’t want to call a double dissolution election at all, because the prospect of significant numbers of One Nation Senators holding the Senate balance of power may well be unacceptably high.

The Qld Court of Appeal decision (NB the entire judgment in PDF format is worth reading) followed the more restrictive line of authority favoured by Gleeson CJ, McHugh and Gummow JJ in United Mexican States v Cabal (2001), holding that:

“an order granting bail will only be made if there are exceptional circumstances, and that the history of decisions in the High Court show that ordinarily that Court will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed. Second, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined.”

That stringent approach coincided with the previous approach of the Full Court of the Qld Supreme Court. However, High Court Justice Callinan favoured a significantly less rigorous approach in Marotta v The Queen (1999), and Justice Kirby appeared to agree with him in Sinanovic v The Queen (2001). New South Wales Supreme Court Justice Greg James also agreed with Callinan J’s approach at an earlier stage of Sinanovic (not available online). On the Callinan approach, Hanson and Ettridge would almost certainly be entitled to bail pending hearing of their appeal. However, as the substantive appeal itself is due to be heard by the Court of Appeal on 3 November, it’s likely that it will have been determined before any High Court appeal on the principles governing bail could be heard and determined.

The Court of Appeal’s reasoning shows (at least to my way of thinking) why there is a respectable argument for adopting something like the Callinan approach, and also why Hanson’s appeal may well succeed. It seems that the only reason why The Court of Appeal was not able to conclude that there were “strong grounds” for believing the substantive appeal would succeed was that the Crown had failed to advance full argument before the judge hearing the initial bail application! Here is the crucial passage from the Court’s reasons:

The Crown case appears to accept and rely upon a view Ms Hanson and Mr Ettridge may have held, namely that those two persons (and the third member of the management committee) could unilaterally put an end to even those very limited contractual rights of the other members of Pauline Hanson’s One Nation; but the constitution placed quite considerable restrictions on the circumstances in which the management committee could terminate membership. No blanket power to do so en masse for all other members was granted. Assuming in Mr Hampson’s favour that there was a delegation of the power to admit members, the Crown case appears to ignore the contractual obligations and relationship objectively existing between the appellant and those other persons who paid the relevant fee and received the relevant membership card describing them as a member of One Nation. On the given assumption, Mr Hampson’s submission that they were members (with admittedly limited) rights appears sound, appears in parts actually conceded in argument by the Crown, and would appear to destroy the basis for Ms Hanson’s conviction on any count.

However, the Court hearing the bail application did not hear by any means the arguments in full that the Crown wished to advance, and was referred to only a very small portion of the evidence and to none of the rulings or directions. Further, the jury accepted the essential factual contention underlying the Crown case and it may be that the Court hearing the appeal determines that, contrary to the submissions of Mr Hampson, the evidence upon which the jury relied in doing that was admissible, and that the jury was properly directed. That may not be enough to save the Crown’s case if the concession made during the appeal is repeated, namely that the many thousands of persons who believed themselves to be members of Pauline Hanson’s One Nation could have enforced their limited rights by action, and were in law thus members of One Nation, just as Ms Hanson and Mr Ettridge represented to the Electoral Commissioner. A critical issue on appeal may be whether there was evidence of a delegation of power, whereby those paying $40 did become members without the express agreement of the management committee. If they did, the Crown case that Ms Hanson and Mr Ettridge believed those persons were not members might be factually correct, but those beliefs would be an error in law on which the Crown case was also based.

Had the Court hearing the bail application heard argument in full from the Crown, including on the point of delegated approval of membership applications, we may have concluded that there were strong grounds for holding that the appeal would be allowed. Absent that argument in full, that conclusion cannot be reached. There was plainly much evidence to which the Crown would take a Court deciding the case on its merits. In those circumstances we are not persuaded that Ms Hanson has satisfied the critical test for release on bail pending hearing her appeal.

The arguments by Hanson’s counsel are given added force by the fact that there doesn’t appear to be any statutory definition of “member” or “membership” of a political party in relation to eligibility for public election funding. Perhaps there really were more than 500 members of One Nation, and perhaps ironically Hanson and Ettridge believed erroneously that they retained a higher degree of control over membership than they actually in law possessed.

The Court of Appeal’s observations about whether the sentence imposed by the trial judge was excessive are much shorter but equally interesting:

Her prospects of success on her application for leave to appeal against her sentences are hard to calculate. The sentence of three years imprisonment on all charges seems arguably to be a high sentence on the first count, for which the maximum penalty is five years imprisonment; and her grounds of appeal imply that restitution was paid in full on counts two and three, which might well mean that the sentence on those counts, without any portion being suspended, might also be regarded as a high sentence. However, to show the exceptional circumstances necessary for a grant of bail, Ms Hanson would need to show now that there are strong grounds for concluding it is likely that the Court hearing the appeal would say that a sentence of three weeks imprisonment at most was sufficient, and that any longer period of imprisonment was excessive. If that happened, it would have been unjust for her to be in prison between the date of this appeal and the appeal on the merits. Because no easily comparable cases have been quoted in argument on her application, the possibility that the Court hearing her appeal will say that a sentence of three weeks at most was sufficient cannot be excluded; but as of now it cannot be said with any confidence that that is the probable outcome.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Homer Paxton
Homer Paxton
2022 years ago

Ken,
forget about an election this year.
1)Queensland and South Australia need electorates.
2)Are you seriously asking us to believe Howard would have a double dissolution WITHOUT any telstra legislation.
3)This would mean either a half senate election in quick time or another early election to get both houses into kilter.

If you wish to pursue the sinful exercise of gambling on a date then look at September 11 next year.

Ken Parish
Ken Parish
2022 years ago

Homer,

Gambling a bottle of vino on the date and nature of the next federal election is a tiny venial sin at best in my book.

As for your other points, they all have a degree of force. But you’d have to admit that the very real prospect of Pauline Hanson being legally vindicated, released shortly after Christmas and free to campaign from then on with a martyr’s wind in her sails would have to be a factor that worries Howard’s strategists. Even without those events, some polls are already showing One Nation at 8.1% in Queensland.

Exactly how the Pauline factor affects Coalition strategists’ thinking remains to be seen. Maybe it simply makes the whole idea of an early election, double dissolution or otherwise, too fraught with peril. Maybe it suggests going to an early ordinary (half Senate) election before Christmas, but ramping up the appearance of Senate obstructionism etc as an excuse. Maybe they might even call the election in conjunction with a referendum on the Constitution deadlock provisions, to lend verisimilitude to the claim that the election is really about Senate obstruction, not just a cynical exercise in running to an election before:

(a) Hanson is released;
(b) Labor wakes up and replaces Crean as leader; and
(c) interest rates begin rising and the housing bubble bursts.

Alan
Alan
2022 years ago

The committee on the Tesltra bill is supposed to report on 30 October. Assuming a week or so for debate that makes a very close schedule for any election before Christmas.

Homer Paxton
Homer Paxton
2022 years ago

Ken,
Unfortunately all sins count!

I do believe all the difficulties mean a double dissolution this year is not on. To give this more authority antony green agrees with me or vica versa really.

Why would he call an election so soon when One Nation will on balance take votes away from his party?

Ron Mead
Ron Mead
2022 years ago

Ken, thanks for an extremely interesting digest of this facet of the Hanson case.

It just adds another disturbing layer of disquiet to the way Hanson and Ettridge have been dealt with.

It appears that the members of the Support organisation who thought they were actually members of the One Nation party may actually have been so. If this is so, the whole case against Hanson and Ettridge collapses. I think even the possibility that this is so lends a hell of a lot of credence to those who say that the offence was only “technical”

Ron Mead
Ron Mead
2022 years ago

Oops Stuffed up the links above.

The Queen v Ehrmann

and sentencing remarks ….

bargarz
2022 years ago

I’d like to take the opportunity in this meaningless post to clarify for the benefit of some that despite my relative silence on the topic of Pauline Hanson, such silence does not imply that I support (now or in the past) her silly and racist policies whatsoever. I hope i can now be regarded as ideologically sound in this regard.

Yes it is rather juvenile and silly isn’t it?

adam
2022 years ago

why would you go with telstra as your double dissolution issue? wouldn’t that make the whole privatisation debate more important to the electorate than it would otherwise have been? i mean, the alp aren’t the world’s best political strategists, but surely they’d be smart enough to say “this election is a referendum on the full sale of telstra”, and if the public bought it, they’d win in a landslide.

mind you, this is precisely what i thought would happen with the gst election, so maybe i’m wrong. but, i think the telstra-trigger is unlikely if for no other reason than it would make the nats extremely vulnerable to one nation.

mark
2022 years ago

Good points, Ken.

Geoff
Geoff
2022 years ago

I agree that the case against Hanson and Ettridge may collapse if it appears that members of the support group did retain the right to vote in manner that made the management committee ultimately accountable to the general membership – support group or otherwise.

It appears that the support group may have had this right, despite the intentions of the management committee to limit such membership to three only.

In other words, the One Nation constution seems to allow general party membership, even though Hanson , Ettridge and Oldfield set up a byzantine organizational structure to prevent this.

They are also on record stating that the structure was designed to limit actual party membership and restrict voting rights.

The appeal judgement notes that although Hanson, etc, had this belief in fact, by the requirements and obligations of contract law, this belief was in error at law.

In other words, Hanson and Ettridge may be saved by their own incompetence, by not designing a constution that gave effect to their publicly stated intentions. :-)

I think even the possibility that this is so lends a hell of a lot of credence to those who say that the offence was only “technical”

mark
2022 years ago

Damnit, Geoff, (at least ’till y’get permalinked comments) that should’ve been a post! Bloody good comment.

Ron Mead
Ron Mead
2022 years ago

Geoff (not Geoff Honnor I assume), you make some good points about the technicality or otherwise of Hanson’s crime. She was undoubtedly engaged in a power play vis-a-vis members of the Party/Support Group, and was excluding them from having any real influence in the party. And did it pretty crudely, unlike the much more sophisticated ways in which the Labor and Liberal parties exclude their “members” from any real say in those parties.

I think her motivation was to prevent a ‘take-over’ of the Party by a concerted stacking of it by her ideological opponents, as happened with the Democrats, originally a party of the centre, taken over by a relatively small number of leftists who now control it. (Not that it did them any good, they simply destroyed it!).

Yes it’s quite true that had she not been able to register the party the result of the Queensland election may have been quite different. The One Nation candidates presumably would have been denied the official link with Pauline Hanson’s rhetoric (I won’t call it policy) and would have been forced to stand as independents. As it happened the One nation candidates polled nearly a quarter of the vote.

Nevertheless it is pretty implausible to assert that those people who voted One Nation were deceived into doing so. They were quite likely all attracted to the Hanson line or moved to vote that way to highlight their opposition to mainstream parties’ policies. Perversely, perhaps, the effect on the election of the Hanson crime was that real voter sentiments pretty well prevailed. Hardly a perversion in that sense (I don’t make a value judgement about One Nation policies in that comment).

In respect to your comments on mitigation re Ehrmann, Judge Wolfe’s sentencing remarks did treat quite fully in that area. She was actually somewhat critical of the time taken for Ehrmann to plead guilty which she did only when it became clear there was no escape for her. I don’t think that factor reduced the time in jail by much (although Wolfe’s remarks were rather opaque in this regard). The major mitigation appears to have been related to the incidental penalties Ehrmann had undergone financially and in reputation, and in her contributions to the community. She even got a further three months off because of an harassment incident! A 75% discount seems pretty heavy to me in the circumstances. Reading the sentencing remarks I got the impression that Wolfe had a great deal of sympathy for Ehrmann and bent over backwards to find reasons to lighten her time in jail. Hanson did have some mitigation mentioned [in the sentencing reasons] in respect of previous good character and contributions to society and to her electorate, but these were dealt with rather cursorily in comparison with Ehrmann. A 0% discount for mitigation against 75% seems to me to be rather disproportionate.

Of course comparing two disparate crimes as to which is worse is full of one’s own subjectivity. I guess that’s what we pay judges for. My view is that interfering with the actual electoral roll involving forgery, over a long period, and on numerous occasions is far more damaging to the electoral process than making a false declaration about the status of 500 supporters of a political party.

Geoff
Geoff
2022 years ago

I think her motivation was to prevent a ‘take-over’ of the Party by a concerted stacking of it by her ideological opponents, as happened with the Democrats

Yep — I’m sure Ettridge made a public comment to this effect at the time, but the only source I have available is from the judgement of the Terry Sharples case:

“Mr Ettridge and Mr Oldfield scoffed at the idea that members of the Chinese community would be able to join Pauline Hanson’s One Nation in sufficient numbers to have her removed because they had total control and no-one would be able to remove them or Ms Hanson.”

Re: electoral subversion

Nevertheless it is pretty implausible to assert that those people who voted One Nation were deceived into doing so

No one is suggesting that voters were “deceived”. There was a One Nation candidate on the ballot, many people supported One Nation, and made their vote accordingly.

It would be equally implausible to claim that voters were “deceived” into voting for the Coalition/Labour candidates if there was no One Nation candidate on the ballot.

Still, the election would have had a different outcome. The party name beside a candidate’s name on the ballot is a considerable advantage that an independent does not enjoy. To gain this advantage by fraud is, Judge Wolfe concluded, a serious offence.

A similar question, I think, is to ask: did the (apparently) fraudulent registration of One Nation give them an unfair advantage over other political groups that followed the law?

There are a number of other political movements that have been denied the benefits of having their party name on the ballot.

For example, the Shooter’s Party may have many supporters, yet they cannot have their name on the ballot. It is arguable that this lack of party recognition on the ballot costs the Shooter’s Party votes. It is also arguable that some One Nation voters would have voted for the Shooter’s Party instead of One Nation, if both party names had been on the ballot.

So why should One Nation gain an electoral advantage over such groups, by virture of their (apparent) fraud?

Re: Ehrmann’s sentence vs Hanson’s sentence

A 0% discount for mitigation against 75% seems to me to be rather disproportionate.

I haven’t read the full judgement in the Ehrmann case, so I cannot comment on the efficacy of the reasons for the mitigation. I just noted that there were reasons for the mitigation that did not seem to be present in the Hanson case (notably, a guilty plea, however late).

Geoff Honnor
Geoff Honnor
2022 years ago

“Geoff (not Geoff Honnor I assume)”

No Ron. Another bloke – with a fine name.

mark
2022 years ago

<pause />

Uh, so that wasn’t Geoff Honnor… well, no *wonder* he didn’t make it a post!

(Don’t look at me! I’m too crimson!)

Ron Mead
Ron Mead
2022 years ago

Geoff Not-Honnor, I don’t disagree with you entirely, it’s just that we see things a little differently.

“So why should One Nation gain an electoral advantage over such groups, by virture of their (apparent) fraud?” – quite so, but the question is how serious is this really compared with a blatant and sustained use of forgery to desecrate the electoral roll? You and I have a different heirarchy of the severity of crimes which is fair enough. I don’t really care as much about the rights of political parties as I do about voters’ rights, and I think voters per se aren’t as much disadvantaged by irregularities in party registrations as they are by phantom names on the electoral roll. As to the Ehrmann sentence, I did link to it above.

Terry Sharples
Terry Sharples
2022 years ago

I observed more than 60% of the Hanson Ettridge trial. I read your analysis of the judgment it was theoritically interesting and on the money so far as it went however may I suggest the reality is that the CA bail application was handled by the B team. The Crown was lazy and just tried to stand on the jury verdict. However they got their warning and the appeal proper will be handled by the Judicial A team know what I mean?

Ken Parish
Ken Parish
2022 years ago

Terry,

I’m sure you’re correct. It will certainly be a much harder fight for Hanson’s team at the substantive appeal hearing. However, I still think Hampson QC’s principal argument (entitlement to enforce One Nation Party membership, as opposed to mere Support Group membership, because of representations etc) may have legs. Do you know whether that argument was put forcefully at trial? Ultimately it may not matter what Hanson or Ettridge thought or said about their ability to exclude Support Group members from membership of the One Nation Party proper, if the legal reality was that they were entitled as a matter of law to compel admission to membership of the Party.

Note that I realise that even membership of the Party proper would not have entitled members to participate meaningfully in decision-making, because the constitution still reserved almost all questions to the triumvirate. But, to a somewhat lesser extent, and by more complex mechanisms, the 2 major parties achieve not dissimilar outcomes. For example, Liberal Party members have no role in setting party policy, and both Liberal and Labor have provisions enabling their national executive body to exclude rank and file membership from pre-selections. With One Nation, “members” (if there were any besides Hanson, Ettridge and Oldfield) were to be completely excluded from all these functions. At what point, if any, does lack of ability to participate in the affairs of the party in any meaningful sense mean that there really aren’t any “members”? That strikes me as a much more subtle and difficult question than whether Hanson and Ettridge were falsely claiming Support Group members as members of the One Nation Party proper.

Ron Mead
Ron Mead
2022 years ago

Terry, I found the media coverage of your part in the Abbott matter rather confusing. You obviously had/have a quarrel with him, and I’m not sure whether it relates solely to a funding dispute between the two of you or whether you oppose his stance in principle. Would you care to elaborate?

Ron Mead
Ron Mead
2022 years ago

It’s taken two and a half months but Pauline Hanson and David Ettridge have at last been released from jail.

On reading the The Queensland Court of Appeal’s reasons, it’s apparent that a monstrous injustice has been perpetrated. It was certainly no technicality that got them off. The 500 members of the “Support Group” were clearly members of the One Nation party. Paragraphs 14 and 15 of the Appeal reasons demonstrate this with no room for dispute.

Acquittal was the only available verdict. Nevertheless serious questions remain about the corrupt (not too harsh a word) administration of justice in this country.

First of all it’s manifestly unjust that a convicted person is forced to begin a custodial sentence before the conclusion of judicial processes including appeals, even where (as in this case) absconding was not an issue. The timing of this appeal appears to have been accelerated because of the intense public interest, but it is conceivable that a convicted person could actually complete a prison sentence before an absolving appeal verdict can be brought down. In this case two and a half months have been served, an immensely long time for anyone unused to prison. Just the appearance of Pauline Hanson in tonight’s news was shocking.

For all the unavoidable correctness of this verdict, reading the judgement highlights to this laymen a disgustingly smug, self-satisfied attitude in the judges.

Everyone gets a serve, including prosecutors (deserved), the appellants for not having more qualified lawyers (paragraph 40) – a classic case of blaming the victim! – politicians for daring to speak (paragraphs 51 to 59) the obvious truth about the harshness of the sentences (the severity of which the judges excused themselves from considering because it was “unnecessary”. Less necessary apparently than Justice McMurdo’s self-indulgent swipe at John Howard, Bronwyn Bishop, Bob Carr, Frank Hough and Bill Flynn.

This case speaks volumes about the incompetence of high-level practitioners of a profession that is so busy making judgement on the judge-defined negligence of practitioners of other professions, particularly doctors. But not one word of criticism against the trial judge (a fellow practitioner, of course) in this verdict except as implied by allowing the appeal.

I do believe in the Rule of Law. The main problem with it in this country is not the concept, but the practitioners.

Herbert Thornton
Herbert Thornton
2022 years ago

After reading the Court of Appeal reasons, the questions I now have are –

1. Do Hanson and Ettridge now have grounds to sue the slush fund people for the tort of malicious prosecution or for champerty?

2. Should the facts concerning the ‘slush fund’ be now investigated to see whether they support the bringing of a prosecution for conspiracy contrary to the Queensland Criminal code?

Herbert Thornton
Herbert Thornton
2022 years ago

I overlooked one point. Pauline Hanson & One Nation are reported to have paid back the approximately $500,000 they were accused of obtaining fraudulently.

Now that the convictions have been overturned, will One Nation get the $500,000 back? It seems to me that they ought to get it back?

trackback
2022 years ago

Could Pauline trigger the early election?

KEN Parish yesterday’s Queensland Court of Appeal decision that may pave the way for a successful appeal by Pauline Hanson and David Ettridge. Ken’s analysis of the political implications of a cleared Hanson for an early election is intriguing….