The AEC and Australians for Honest Politics

Margo Kingston’s Web Diary hosts an excellent post this morning by UNSW Latrobe law lecturer Joo-Cheong Tham discussing the issues surrounding whether the Australian Electoral Commission should require Tony Abbott’s delightfully deceptively-named Australians for Honest Politics to disclose the identities of its donors under existing law.

I agree entirely with Joo-Cheong Tham. Although there are a few vaguely respectable arguments to the contrary, a purposive (rather than narrow and technical) approach to interpreting the provisions (Part XX of the Commonwealth Electoral Act) results in a conclusion that disclosure is required. At the very least the appropriate course would have been for the AEC to demand disclosure and let the courts decide the question if Abbott chose to contest its decision.

In fact I think the more interesting questions here are political ones. Why didn’t the AEC make any moves to compel disclosure? Its passive approach suggests at least the possibility of a disturbing degree of politicisation of an arm of the bureaucracy whose fearless independence is crucial to a functioning democracy. As such this aspect of the Hanson/Abbott affair is arguably even more worrying than the “children overboard” affair, which provided strong evidence of the extent of creeping politicisation of the public service at large (and to an extent the defence forces as well).

In the longer term, I think the most desirable solution to dilemmas of this sort would be to revisit the sort of campaign funding and regulation laws struck down by the High Court in the Political Advertising Case in 1992, which established Australia’s implied constitutional freedom of political speech. Laws of that sort can remove far more effectively the ability of big money to influence or even determine electoral outcomes.

Several of the Justices in the Political Advertising Case hinted that it might well be possible to design laws to similar effect that would pass constitutional muster (e.g. see the extract from Mason CJ in my recent post about the Manildra affair), but no federal government since then has taken up the challenge. A cynic might conclude that this is because the only way to achieve a constitutionally valid regime of that sort would be to draft it in such a way that Independents, new and minor party candidates gained fair campaign access to the media. That would be an outcome that wouldn’t suit the interests of either major party.

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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Tim
Tim
2022 years ago

In fact I think the more interesting questions here are political ones. Why didn’t the AEC make any moves to compel disclosure? Its passive approach suggests at least the possibility of a disturbing degree of politicisation of an arm of the bureaucracy whose fearless independence is crucial to a functioning democracy.

Exactly what our “our own roll-your-own, Oriana Fallaci-in-a Flannie” has been saying all along.

Ken Parish
Ken Parish
2022 years ago

Tim,

But I still flush the toilet.

Ron Mead
Ron Mead
2022 years ago

Ken, the quote used by Tim Dunlop above is another example of your recent tendency to suggest bad faith as the motivation of any person or organisation whose actions you disagree with. I agree that the Electoral Commission is probably incompetent. It should have undertaken basic auditing processes in the examination of whether One Nation was a legitimate political party in the first place. Its action in contacting about half of the names on the list of 500 in the “Support” organisation was rather futile. It simply discovered that the these people “believed” they were members of the One Nation party. Irrevelant as it turned out. It would have taken a simple audit of the ON constitution to come to a prima facie conclusion that it was a party of three.

They didn’t require disclosure of Abbott’s donors five years ago and only started making noises about it recently when this beat-up started. But so far no action. Abbott for his part maintains he will not oppose a ruling to make disclosure. You might say he should do so anyway, but why the hell should he buckle to media and opposition pressure. If the umpire makes a decision he has clearly undertaken to abide by it.

You may well say a “cynic might conclude that…” Frankly I don’t give a shit what cynics might conclude. Reasonable scepticism is defensible, even obligatory, but cynicism is entirely unreasoning and informed by nothing but prejudice. I wish you wouldn’t continue using it as if were the stance of honorable men.

Geoff Honnor
Geoff Honnor
2022 years ago

“In fact I think the more interesting questions here are political ones. Why didn’t the AEC make any moves to compel disclosure? Its passive approach suggests at least the possibility of a disturbing degree of politicisation of an arm of the bureaucracy whose fearless independence is crucial to a functioning democracy.”

Meaning, I assume, that the AEC is PROBABLY (rather than possibly) the corrupt creature of political dark forces? Leaving aside the obviously totally remote POSSIBILITY that it’s the normal (mal)functioning of bureaucracy in play?

Ken Parish
Ken Parish
2022 years ago

Well, no Geoff (and Ron). I said “possibly” and that’s precisely what I meant. I think some of Margo’s coverage of this issue goes close to conclusively assuming that the AEC’s motives were corrupt (or at least compromised), and perhaps I should have made that point in response to Tim Dunlop.

However, speaking for myself, I certainly acknowledge the strong possibility that the AEC’s failure to pursue disclosure of the Abbott donations may have resulted from bureaucratic ineptitude, lack of resources or some reason other than corruption/political compromise. Nevertheless, given the importance to the integrity of the electoral process of ensuring the fearless independence of the AEC, I would have thought that even the possibility that it has been compromised would merit the most rigorous examination, not just a world-weary shrug of the shoulders and a kneejerk labelling of anyone who dares to raise the question as a leftie ratbag.

Geoff Honnor
Geoff Honnor
2022 years ago

“I think some of Margo’s coverage of this issue goes close to conclusively assuming that the AEC’s motives were corrupt (or at least compromised)”

(Gasp!) Shurely not Ken! I don’t think anyone labelled you a leftie ratbag and I would vigorously defend you against such an outrageous assertion :) Not that there’s anything wrong with leftie ratbags, per se.

Ron Mead
Ron Mead
2022 years ago

“even the possibility that it has been compromised would merit the most rigorous examination”

Anything’s possible in the world, Ken. To undertake rigorous examinations of things because of the zillions of unfounded “possibilities” that fevered imaginations come up with would be a good way of ensuring that nothing else in the community gets done. I assume the “leftie ratbag” you’re referring to is Margo. It’s hardly a kneejerk reaction to so label her. Even some your left-of-centre commenters have indicated as much.

Ken Parish
Ken Parish
2022 years ago

Ron,

I haven’t checked this and am going solely from memory, but my recollection is that AEC officers were quizzed recently in Senate Committee hearings about why they didn’t pursue disclosure of the Abbott donations. I think they indicated that they sought/obtained counsel’s advice on the question, but failed to produce the advice to the Senate Committee.

If that’s correct, then I think at the very least the public should see the counsel’s advice and the brief sent to him/her(since the answer counsel gives depends on the way the questions were framed), so that we can evaluate the AEC’s decision to do nothing for ourselves. The situation is more than just an “unfounded possibility”, especially given my view (and that of Joo-Cheong Tham) that the legal requirement for disclosure is actually pretty clear-cut.

Ken Parish
Ken Parish
2022 years ago

Probably the most salient of Margo’s pieces on the the AEC’s role in the affair are here and here. In the second piece, Margo backs off the extreme anti-AEC rhetoric after they begin being a bit more responsive to media questioning (and conceivably after current AEC boss Trevor Morling QC reminded her about defamation).

Reading both pieces, it doesn’t seem to be at all clear whether the AEC sought counsel’s advice on whether Australians for Honest Politics was an “associated entity” of the Liberal Party. Margo asked the AEC spokesperson whether such advice was sought, but he declined to answer. Maybe that was what I recollected (Margo isn’t quite a Senate Committee). However, I haven’t seen anything subsequently where the AEC answers the question of whether it sought counsel’s advice before accepting Abbott’s assertion that it wasn’t an “associated entity”. Apart from anything else, it’s that aspect that causes me to wonder whether Margo was “sat on” by someone, because it still strikes me as an important question to ask.

margo kingston
margo kingston
2022 years ago

Hi Ken. The AEC did NOT seek legal advice before backing down on its request that Abbott reveal his donors. See ‘AEC took Abbott’s word for it to keep ‘honest politics’ donors secret’ at http://www.smh.com.au/articles/2003/09/03/1062548900147.html. The AEC took legal advice after John Faulkner quized it some time later, but will NOT release that advice. It says the advice was “inconclusive’, but chose NOT to ask Abbott questions to clarify the matter and sat on the advice and did NOT pass it on to Faulkner as promised. See ‘Australian Electoral Commission in the dock: Why won’t it come clean?’ at http://www.smh.com.au/articles/2003/09/01/1062383517567.html.

Regards,

Margo

Ken Parish
Ken Parish
2022 years ago

Margo,

That seems to clear up the issue at least in one sense. My memory was correct about the AEC being asked in Senate Committee, but the counsel’s advice was sought and obtained after that, and still hasn’t been publicly produced.

I’m still interested in what lies behind the much more positive spin you put on the AEC in the second of the 2 articles I linked in my previous comment:

“Thank you Trevor Morling, an Australian elder – a distinguished retired judge who takes his duties to the people very seriously. Justice Morling is a part time AEC chairman, because it’s a part time job. But he cares, is well aware of his grave responsibilities, and is above politics. I think the Australian people can trust him to do the right thing. I certainly do.”

In general I share your high opinion of Trevor Morling, but he HAS been AEC chairperson throughout this debacle, and I don’t think the fact that the position is part-time provides a convincing explanation about why he’s seemingly done nothing up until very recently, despite the fact that this issue has been in heavy public and media focus on several occasions over the last couple of years. Why hadn’t he even bothered to read the existing AEC legal advice before (presumably on advice) labelling it “inconclusive”? Why hadn’t he insisted that the AEC’s officers provide a response to Senator Faulkner’s questions as promised? Why hasn’t the “inconclusive” opinion been released even now? I think I’ll just keep an open mind on whether Morling will now ensure that the AEC takes a more vigilant stance. I certainly hope he will.

margo kingston
margo kingston
2022 years ago

Hi Ken. In our interview, Justice Morling told me the AEC hadn’t told him about the post-Faulkner legal advice:

‘”I wish it had been referred to me then,” he said, adding that the AGS advice, which left the question of whether Abbott should disclose his donors open, would not have justified an immediate prosecution.’

‘The question whether it warranted an investigation of the trust “is another matter”, he said.’ (See AEC chief intervenes in Abbott slush fund secrets at http://www.smh.com.au/articles/2003/09/04/1062548956846.html?from=storyrhs).

Maybe I’m naive, but I have great respect for Justice Morling and trust that he will clean up this mess. Since our interview, the AEC has again clammed up, and even denied to people that Morling has intervened, in direct contradiction of Morling’s interview with me. Indeed, the AEC claimed to me that the first involvement of Morling came when the AEC briefed Morling after I had mentioned to AEC spin doctor Brian Hallett the day before I spoke to him that I would give him a call. This directly contradicts what Morling told me – that HE had called for the files TWO OR THREE DAYS BEFORE my call. I haven’t had time to write up these latest AEC machinations yet.

Ron Mead
Ron Mead
2022 years ago

“despite the fact that this issue has been in heavy public and media focus on several occasions over the last couple of years.”

Ken, the matter of Abbott and “Politicians for Honest Politics” only surfaced as controversial very recently.

It’s quite probable that the AEC considered it a non-issue if it thought of it at all until the very recent beat-up. Certainly the illegal registration of One Nation dwarfs it in importance.

SP
SP
2022 years ago

Ron, the AEC had nothing to do with the flawed One Nation registration – that was in Queensland. It is muddying the waters to keep bringing that up.
The AEC has its own responsibilities in regard to the “Australian for Honest Politics”. We need to know if they were properly fulfilled, and if they weren’t that they will be corrected.
Laws shouldn’t just apply to unions and unionists Ron, the politicians should obey them as well.

Ken Parish
Ken Parish
2022 years ago

Ron,

The Abbott slush fund issue was certainly in the public eye in the second half of 1998 (soon after it was set up), leading the AEC to write to Abbott seeking an explanation and indicating that the fund on its face DID seem to be an “associated entity” requiring disclosure. Abbott’s response is much less than convincing, yet the AEC did nothing.

The matter was again in the public eye when Senator Faulkner asked about it during a Senate Committee hearing in May 2002. The AEC spokesperson:
(a) promised to examine the matter and get back to Faulkner (and the Senate);
(b) took it seriously enough to seek advice both from the Commonwealth DPP and Australian Government Solicitor;
(c) never got around to replying to Faulkner or the Senate;
(d) never got around to following up on the AGS advice, which seemingly left it open whether Abbott’s slush fund was an “associated entity” requiring discloure;
(e) still hasn’t gotten around to releasing either the DPP or AGS advices.

This chain of events does not seem to leave much room (except for the determinedly credulous) for concluding that the AEC’s conduct is explained by its regarding the whole thing as a “non-issue”. I suspect it’s much more likely that, like the “children overboard” affair, this prolonged chronicle of inaction (despite public questioning) is explained by the consciousness of the public servants involved that the issue is a political “hot potato” best not handled in case you get burned. That isn’t “corruption” with a capital “c”, but it’s certainly systemic corruption in that it flows from a consciousness on the part of public servants that they do not work in a fearlessly independent, impartial Public Service, but in a politicised body where their progression to and through the Senior Executive Service will be hampered if they make things difficult for the politicians.

If someone’s about to suggest that I’m skewing from “possible” to “probable” on corruption (in the systemic sense described above) as the explanation for AEC conduct, you’d be right. Reading the references Margo provided leads to that tetative conclusion IMO. I just hope that Morling can (and is minded to) restore some pride and backbone to the AEC, having had its obvious (and serious) failings drawn to his attention.

I don’t agree that the illegal registration of One Nation (an observation that might not even be correct depending on the outcome of the appeal) “dwarfs in importance” the AEC non-handling of the Abbott slush fund. It’s difficult to imagine a more critically important issue for our democratic polity than to be able to be absolutely confident that the electoral umpire is both fearless and impartial.

Ron Mead
Ron Mead
2022 years ago

“to be able to be absolutely confident that the electoral umpire is both fearless and impartial.”

This is not the same as the substantive issue of whether the Abbott fund donors should have been disclosed. Of course the electoral umpire has to be both fearless and impartial, and there’s absolutely no evidence that it isn’t despite the move in your estimation from possible to probable after studying what Margo has to say!

I hadn’t picked up on the 2002 question in the Senate Committee but it obviously wasn’t important enough in Faulkner’s mind for him to follow up. Perhaps he also thought it was pretty much a non-issue (until he discovered the political mileage in it very recently), in which case for once I agree with him.

It’s a regrettable tendency of pundits these days to progress to “lack of integrity” as the first port of call in their attempts to vilify those who don’t act in the way their conspiracy theories command, and to label those who don’t accept their theories as “determinably credulous”.

Ken Parish
Ken Parish
2022 years ago

Ron,

I don’t regard public servants who look to their own career survival as suffering a “lack of integrity”, nor am I vilifying them. In fact, they would be mugs to behave in any other way in a system designed like ours now is. Moreover, most of the design features were implemented by the former Labor government to make the Public Service more “responsive” to the policies of the government of the day. The Howard government just added a few refinements, executed a couple of senior bureaucrats with extreme prejudice (e.g. Barratt in Defence) and brought in Max “The Axe” Moore-Wilton to ensure that everyone got the message.

Of course, in the AEC the Chair and Commissioners are tenured (7 years in the case of the Chair), but most other AEC officers are dependent on promotion throught the ordinary public service processes for their career futures, and they’d be very silly indeed to upset someone as powerful as Tont Abbott, especially when at all material times the ALP was at least equally keen to torpedo One Nation by all available means.

That’s the trouble with the bipartisan conviction that a fearlessly independent, impartial public service is something to be feared and eradicated lest one’s agenda be sabotaged by an army of Sir Humphrey Appleby clones.

mark
2022 years ago

“Not that there’s anything wrong with leftie ratbags, per se.”

<swoons /> My hero, Geoff!

“… lest one’s agenda be sabotaged by an army of Sir Humphrey Appleby clones.”

Heh. [ot] Watched what I believe is the first episode of “Yes, Minister” this morning. Great show. Great show…

Ken Parish
Ken Parish
2022 years ago

Mark,

I agree that Yes Minister was one of the funniest TV shows ever made. But it was also one of the first (and most effective) shots fired in the neo-liberal war to control the political agenda in western democracies, by using humour to portray the critically important democratic instituton (at least in a Westminster system) of the impartial, independent public service as evil and illegitimate. It was wildly successful, as ‘children overboard’; the AEC’s inaction in the Abbott/Hanson affair; and the complete failure of assorted intelligence agencies to tell John Howard things about Iraq that they knew he didn’t want to know; all amply demonstrate. I always barrack for Sir Humphrey and hope Jim Hacker gets what he richly deserves but never receives.

Ron Mead
Ron Mead
2022 years ago

I’ll take that as tongue-in-cheek, Ken. My two and a half years as a NSW public servant made me realize that Sir Humphrey was pretty true to life. Your picture of poor down-trodden public servants beholden to ministers is the opposite to what really happens. The only politician to achieve an ascendency over the mandarins was Paul Keating, and for this I applaud him. On the other hand the pathetic Peter Costello allowed Carmody to completely stuff up the implementation of the GST. Carmody ran his own race from go to whoa and was responsible for the outrageous imposition of the BAS.

mark
2022 years ago

Ron, from what experience I have with the ACT Public Service, this isn’t always the case here — it’s kind of a battle, with the Minister sometimes being (as Jim Hacker put it) “the beauracracy’s mouthpiece”, and the beauracracy sometimes forced to do the Party’s bidding, even if against all common sense and reason.

Well, sort of. Thanks to Carnell, there’s probably a decent proportion afraid for their jobs and livelihoods if they step out of line. But I bet they’re enjoying the freedom to tell the current Labor govt to fuck off once in a while…

(Of course, all this only applies to those who actually do work…)

EvilPundit
2022 years ago

If the Liberal Party’s associated entity is worthy of disclosure, what about the Labor Party’s associated entity?

If neither of these organisations has been compelled to declare its donors, then it looks less like a case of political favouritism.

Jozef
2022 years ago

At some point, just before political oblivion takes us, someone will finally utter these fateful words:
“They were our Honest Politicians.”

Article of note: Brief and colourful history of fundraising…
Candidate.com
Stop the presses! Dean blows up big, thanks to the Internet! It’s a great story, but can Web-based fund-raising really predict the mass market?
In 1970, George Mcgovern, the way-long-shot antiwar candidate, began to experiment with the novel political fund-raising technique of direct mail to finance his unlikely primary race.
This political marketing strategy, according to an article that appeared in New York in September 1972, was the brainchild of Morris Dees, who would become among the most prominent southern liberal activists but who was then the head of a publishing company that sold special-interest books through the mail.
· Fund Raising [NYorker]

PS::Anyone who is regularly in touch with people who respond instantly and passionately over the Internet knows that they are not like you and me…