Craig Thomson (and Labor) might be in even more strife than the MSM currently thinks

With the noteworthy exception of the Fairfax investigative journalists especially Kate McClymont who continue to uncover new aspects of the story, Australia’s predictably groupthink-oriented political media appear to have concluded (at least temporarily) that the fact NSW Police declined to investigate federal Labor MP Craig Thomson’s alleged misuse of his HSU credit card on call-girls and political donations means that the whole controversy is a damp squib that’s going nowhere as a political issue.  That seems to be the case even despite Tony Abbott’s best endeavours to keep it alive through questions in Parliament last week.

However, what the MSM doesn’t seem to have yet registered is that the newest allegations, to the effect that Thomson and current HSU National President Michael Williamson both secretly received credit cards from a preferred HSU supplier and used those cards for their own private benefit (in Williamson’s case quite blatantly), may well be potentially both more serious and easier to prove than the original call-girl allegations.  As I commented about the original allegations against Thomson:

What may make charges tricky is that the existence and extent of legal (as opposed to moral) authority to incur personal expenses on a corporate credit card can be unclear in such situations. It is very common for executives to be permitted to use corporate cards for personal expenses while travelling on corporate business. While it is undoubtedly clear in a moral sense that this should not include using it for call-girls, if the formal rules (if any) are unclear about what is allowed and what isn’t then establishing criminal guilt might become problematic.

Similarly with donations to ALP campaigning. Affiliated trade unions make donations to the ALP frequently and always have. The extent to which union executives have express or implied authority to do so without a formal resolution of the union executive committee (or whatever) in advance may vary from union to union and time to time. The fact that a later and hostile Union Secretary seeks to impugn the legitimacy of such donations does not of itself establish criminality. There may well be a conflict of interest given that it is alleged that Thomson was in part donating to campaign costs in his own seat, but again conflict of interest is a civil not criminal concept. If there is a history of union secretaries making donations to ALP campaigns on their own authority (as may conceivably be the case) then it could be very difficult to establish criminal guilt.

Ultimately it appears that it was precisely those problems that caused the NSW Police to decide that no formal investigation was warranted.  However, those problems of evidence and proof mostly don’t apply to the latest allegations, which are in the nature of receiving secret corrupt commissions as an agent from a third party.

Very likely that’s why the Police are actively investigating these latest allegations. While I’m not a criminal law specialist, it seems to me that there is a very real risk that Thomson and Williamson may have breached s 249B of the Crimes Act 1900 (NSW), a section titled “corrupt commissions or rewards” if the allegations so far published are substantiated.   It’s fair to speculate that senior ALP figures have reached similar conclusions, hence Williamson’s sudden resignation today as ALP national vice-president and NSW senior vice-president.  Even if Thomson didn’t  exploit supplier John Gilleland’s credit card quite as ruthlessly as Williamson is alleged to have done, that is unlikely to assist him much in terms of criminal liability.((The Fairfax story which first broke the latest allegations says that: “At an HSU function this year Mr Gilleland’s wife, Carron, privately complained to senior union officials that Mr Williamson had ”run amok” with the credit card. According to one official, Mrs Gilleland said, ”He even paid his private school fees on it” and ”this was not part of the deal”.”~KP))  Nor is the fact that Gilleland himself might not be the world’s most compelling witness.  If it can be established on the evidence that both were given credit cards, used them for their own benefit and failed to make disclosure of those facts to the HSU, then it may well be that a breach of s 249B is made out even if the Prosecution can’t establish that Gilleland’s business actually received favourable treatment on HSU contracts (see subsection (1)(b)).  The offence potentially carries 7 years imprisonment, more than enough to give rise to disqualification from Parliament under s 44 of Australia’s Constitution.

Nor is it necessarily the case that Thomson’s lawyers would easily be able to delay any criminal proceedings well beyond the next election due towards the end of 2013, a proposition that most media pundits happily accepted without question.  It’s certainly true that a competent defence lawyer would be able to engineer at least some delay, but I suggest it would be quite difficult to prevent the matter from coming to trial within 12 months or so. Liberal Senator Mary Jo Fisher’s alleged shoplifting offence occurred in December 2010 and has already been tried. It’s unlikely that her lawyers eschewed delaying tactics. A similar timetable in Thomson’s case would potentially result in the Gillard government’s term of office being reduced by at least 6-9 months, even allowing for the necessary by-election after disqualification and then a House of Reps motion of no confidence.

PS I’d be most interested in the evaluations of readers who are criminal law specialists, either as to substantive offences and issues of evidence and proof, or estimates of likely timing of any trial and the potential for delays.  But please be aware of potential defamation issues and the possibility of prejudicing a fair trial (not that the latter is probably a huge risk at this early stage).

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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Alan
Alan
10 years ago

A general election may, in what passes for the mind of this government, be easier to win than a by-election in Dobell. And there is this ridiculous refugee legislation which is being presented to the parliament without the slightest chance of passage…

Pedro
Pedro
10 years ago

I’d like to see a crim lawyers views. Politically, what amazes me is the assumption that has apparently been made about the relative risks of keeping the grub in the party. Is govt so precious that it is worth sitting next to a man like Thompson and publicly supporting him? What are labour saying about themselves?

KB Keynes
KB Keynes
10 years ago

I am surprised you didn’t mention anything about the ‘alleged’ untaxed’ income both men may have gotten.

I am sure the ATO will be examining their tax records and the companies carefully.

murph the surf.
murph the surf.
10 years ago

Mr Williamson was ALP national vice-president and NSW senior vice-president.
The manner in which he has been behaving at the union is amazing.
It is certainly convenient for his relatives having this eminent and powerful Labor figure in the family.
Private schools for the children naturally.
How much of the emergence of this story can be traced back to the change in NSW governing party?

Tel
Tel
10 years ago

If you check back to Thomson’s earlier statements you find this:

The issue went quiet, until revived by his August 1 interview with Michael Smith on 2UE, in which he admitted he authorised the credit card bills.

Smith put to him: “Your signature is on that voucher. Your driver’s licence has been transcribed on to the back of it. How did all that get there?” Thomson replied: “I’m not saying that’s my signature.” Asked whether someone forged his signature he said: “Well, it certainly wasn’t me.”

So did he report the improper use of the card to the police? “The union reached a settlement with another gentleman who paid back $15,000 in relation to use of credit cards at an escort agency… I don’t know whether he forged my signature or who forged my signature.”

(from http://m.smh.com.au/opinion/politics/propriety-second-to-survival-as-labor-backs-embattled-mp-20110818-1j01c.html)

It happens to be fraud in NSW for anyone to present a credit card if they are not the person named on that card. Thus, police were investigating the behaviour of this mysterious other gentleman (the person who certainly wasn’t Craig Thomson). What the police discovered is that the only person using Craig Thomson’s credit card, was Craig Thomson himself, and such usage is fully legal in NSW, given that knocking shops are licensed and regulated here.

Thus, they dropped the fraud investigation when they discovered that no brothel had been defrauded.

Judith Sloan
Judith Sloan
10 years ago

And, Tel, there was nothing specific in the union rules to prevent personal expenses being put on the credit card and the payment was authorised by a management committee. That is, there was nothing for the police with which to charge him – although his story about it being someone else was clearly dismissed by them.

Sally
Sally
10 years ago

I’ve seen reports of investigations in the public service of credit card and other forms of management abuse of financial privileges and it’s incredible how often the culprits state as their principal defence they did not know that their use of it even in the most blatant and OTT ways was an unreasonable use of the credit card according to government policies.

You’ve got to put this down to the extraordinary sense of entitlement and carelessness about probity that are too often characteristic of corporate and bureaucratic leaders everywhere.

Tel
Tel
10 years ago

Tel, there was nothing specific in the union rules to prevent personal expenses being put on the credit card and the payment was authorised by a management committee.

I believe that the NSW police merely tossed that question across to the Victorians, and never came to any particular conclusion on the matter. The theory being that the Victorians are in a better position to gather evidence… although it looks like the evidence evaporated some years ago. So now we know where all the atmospheric CO2 came from (burning documents) if only we had carbon permits back in the Howard years, they would have got the dreadful rorting under control. Oh well… *SIGH*.

Then again, maybe there’s a backup tape around somewhere. Surely someone, somewhere in this hi-tech world takes backups?

PC
PC
10 years ago

As a HSU member, I am considerably cheesed off with the use of my membership fees.