Congratulations to Webdiary readers for helping the Australian Electoral Commission see that its duty is to Australian voters, not to devious politicians trying to avoid their legal obligation to be honest with voters about who’s bankrolling their parties. The AEC Chairman, Trevor Morling QC, has now intervened to clean up the mess and reassure the public that Tony Abbott will not get special treatment. He’s criticised the AEC for aspects of its conduct in the ‘Honest Politics’ Trust matter to date, and urgent new legal advice is being sought (AEC chief intervenes in Abbott slush fund secrets).

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. (For his background and career, see Taking Abbott’s slush secrets to the top: Will the AEC chairman intervene?)

Bouquets are also due to the AEC itself! After trying to keep its record on Abbott’s slush fund secret for more than a week in accordance with its misconceived “standard practice”, it’s now decided to be open with the Australian people it’s there to serve. AEC media spokesman Brien Hallett now openly admits that mistakes were made. That is courageous, honest, and worthy of hearty applause. How many other public service bodies or companies – let alone politicians – are willing to admit they were wrong and then get on with doing the job better?

I’ve now talked to a lot of people who know how the system works, and I’m getting a good idea of how John Howard has deliberately weakened the AEC through budget cuts and the refusal of all AEC requests to clean up political donation disclosure laws. Mark Riley’s piece in the Herald this morning, Anti-rorting proposals ignored, shows the AEC has pushed for legal reforms to stop the big parties rorting the system and hiding their donors from the Australian people for the last ten years. First Keating then Howard said no.

We can now see that Abbott’s ‘Honest Politics Trust’ was not just a joke on the people of Australia because its donors were secret. Abbott and Howard were also misleading the Australian people in a more fundamental way. By their actions – and lack of action – they allowed the system to break down so that there were plenty of chances to evade the Liberal Party’s legal obligations to disclose its political donors. Howard and Abbott believe in dishonest politics for them and honest politics for their small political competitors.

The AEC has to both administer the system and enforce it – a pretty hard ask when you’re trying to keep politicians honest! There should be a powerful, independent enforcer of rules to keep our democracy clean and transparent, just like the ACCC stops big business abusing market power and misleading consumers. But John Howard doesn’t want it that way.

To try to avoid getting embroiled in big party politics, the AEC adopted a policy of confidentiality on donor secrecy so the two big parties didn’t play politics with each other’s tricky business. But that’s backfired. Tony Abbott demands confidentiality of the AEC, yet releases correspondence with it when it suits his political needs. And the AEC forgot for a while that requests by the public for openness on its 1998 decision to allow Abbott to keep his slush fund donors secret were about the AEC being accountable to its clients, the voters.

Tonight, the text of the letters between Abbott and the AEC in 1998 – thank you to the Australian Financial Review’s Canberra bureau chief Tony Walker for giving me copies. Abbott gave the letters to Tony on Sunday night to justify his continuing refusal to come clean, but as Webdiary reader Sue McDonald found out, chose not to put them on his ministerial website. Sue wrote:

I have been searching for details of correspondence that Tony Abbott had with the AEC. I eventually rang Andrew Simpson who is given as the contact on the press release titled One Nation Litigation on Tony Abbott’s website. I said I was trying to find out who initiated the correspondence between Tony Abbott and the Australian Electoral Commission. Andrew Simpson said it was Tony Abbott who initiated the correspondence. (Margo: This is not correct. The AEC wrote to Abbott first.) I asked if Tony Abbott was going to release copies of this correspondence and the legal advice Tony Abbott had obtained. Andrew Simpson stated that the correspondence had been released to media outlets. I also asked if he could fax me a copy of the correspondence. He said he would organise for a copy to be faxed to me. Has this correspondence been released to media outlets? (Margo: Certainly not to the Herald. Only to Tony, as far as I know.)

The letters reveal that the Honest Politics Trust was formed not only to destroy One Nation through the Courts, but also other political parties which could threaten voter support for the Liberal Party.

Webdiarists have also asked for information on the AEC’s legal powers to investigate the trust and prosecute Abbott for non-disclosure. Our legal experts, Graeme Orr and Joo-Cheong Tham, have kindly obliged.

***

Text of letter from Abbott to the AEC in response to its demand that he disclose the name of the donors to his honest politics trust in accordance with laws requiring transparency of political donations. Comments in bold are mine.

October 20, 1998

Roger Wills

Australian Electoral Commission,

PO Box E201

Kingston, ACT 2604

Dear Mr Wills,

The Australians for Honest Politics Trust was established on August 24 1998, and, therefore, cannot fall within any disclosure requirements for the 1997-98 year. In any event, I very strongly submit that the Trust is not an “associated entity” under the Act.

The object of the Trust is to support legal actions to test the extent to which political entities comply with Australian law. I have two fellow trustees: John Wheeldon, a former Labor Minister (now a neo-liberal right winger associated with John Howard’s favourite magazine, Quadrant) and Peter Coleman, a former NSW Liberal leader. Neither, as far as I know, are currently members of a political party and neither would do the bidding of a political party.

So far, the Trust has raised nearly $100,000 – almost all of which is committed to supporting the action brought by Mrs Barbara Hazelton (at the urging of the Trust and after it promised to pay her legal bills) in the Queensland Supreme Court to test the validity of the Queensland registration of One Nation. Given the unusual structure of the One Nation entity (as unusual as the structure of the Honest Politics Trust?)there is an important public interest in this action – which may not have been brought but for the Trust. I very much doubt whether the framers of the Electoral Act would have wished to discourage those seeking to test and strengthen the electoral law. (People like you and Howard, Tony, who’ve blocked electoral law reform so your party can keep avoiding disclosure laws?)

The Trust is not controlled by and does not operate for the benefit of any registered political party. The Trust does not raise money for a political party nor hold assets for the benefit of a political party nor take any part in election campaigns. If the Trust – which is not linked with a political party and is not involved in election campaigns – is required to file an “associated entity” return, other organisations such as trade union and party-allied think tanks would also need to file returns. (Indeed, and so they should.) In my judgement, this would amount to a change of policy in the guise of administration.

Before seeking donations to the trust I spoke with one of Australia’s leading electoral lawyers who assured me that the Trust would not be covered by disclosure provisions. (Tony, why did you want to keep them secret in the first place?) If despite this letter and the attached Trust document you still believe otherwise, I would appreciate your urgent advice.

Yours sincerely,

Tony Abbott.

***

June 10, 1999

The Hon. Tony Abbott, MP.

Suite 11

Pacific Point

4-10 Sydney Road

Manly NSW 2095

Dear Mr Abbott,

Thank you for your letter of 20 October 1998 responding to our inquiry as to whether the trust Australians for honest politics may fall within the ambit of an associated entity. I apologise if you have not received a response earlier.

On the basis of the information provided, I am of the opinion that the trust does not constitute an associated entity at this time and accordingly is not required to lodge a disclosure return.

I take this opportunity to note that if the activities of the Trust alter, then it may constitute an associated entity. This is a term interpreted by the Commonwealth Electoral Act 1918 and used by the Australian Electoral Commission for an organisation that is controlled by, or operates wholly or mainly for the benefit of, one or more political parties.

If I can be of any further assistance, please telephone me on 02 6271 4413.

Yours sincerely,

Brad Edgman

Director

Funding and disclosure.

***

I asked Webdiary’s electoral law experts Joo-Cheong Tham and Graeme Orr to tell us what the AEC can do to enforce the disclosure laws against reluctant politicians who want to avoid complying with the laws they passed. I also asked if voters could take the matter to Court and ask it to decide whether Abbott should reveal his donors. I’ve published Joo-Cheong’s piece at Enforcing disclosure: AEC can make Abbott give sworn evidence on slush fund. Joo-Cheong added:

I haven’t included stuff on individuals enforcing the Electoral Act as it is really a theoretical option. Like the overwhelming majority of statutes, the Electoral Act can only be enforced by citizens in very limited circumstances. Generally, the requirement is that a person have a special interest in the subject matter. The courts have insisted that a ‘mere emotional or intellectual concern’ won’t do! In the case of AHP Trust, the only people who can make out this requirement are probably Pauline Hanson and David Ettridge.

Australia’s foremost electoral law expert Graeme Orr, senior law lecturer at Brisbane’s Griffith University, debuted on Webdiary in AEC claims secret political donations no business of voters. He was rushed for time today, partly due to media interviews on this hot topic, but emailed these notes:

1. An ‘associated entity’ must file an annual return within 16 weeks of the end of each financial year, to include the names/addresses of donors over $1500.

2. This obligation falls on the trustees. NB – Unless Abbott was a trustee that technically means the rap falls on Wheeldon/Coleman rather than Abbott or Lib Party. (Margo: Abbott is a trustee.)

3. It’s an offence not to furnish a return – with a piddling maximum fine pf $1,000.

4. Under the Electoral Act, only the Australian Electoral Commission (AEC) is empowered to seek an injunction. If the AEC changed its mind and determined that Australians for Honest Politics (AHP) was an associated entity of the Liberal Party, it would advise trustees to disclose. If the trustees didn’t, the AEC could compel them to via the Federal Court. I note Abbott has committed to disclose if the AEC requires him to. As for the offence/fine, that would only come into play if the Director of Public Prosecutions (DPP) chose to pursue it after a referral from the AEC. Clearly, the AEC, having first held AHP wasn’t associated, would only pursue conviction for an offence if the trustees refused to disclose the donors.

NB: All this is only relevant assuming AHP is an ‘associated entity’ – as I’ve said this is arguable but less likely than not, unless a court read ‘benefit’ very widely and purposively. I’d be happy to see the AEC and their brief take this line, though it may have difficult consequences for other political activities.

5. Donors are only required to disclose personally if they donated ‘with the intention of benefiting’ a particular party or candidate. That clearly doesn’t apply here.

6. As to whether an ordinary elector could sue directly, there may be two options:

(a) claiming standing to sue as an elector and seeking a declaration – the elector would face the argument that the AEC is the only proper party to sue by implication (see note 4.)

(b) suing the AEC under a writ of ‘mandamus’ to compel it to take action. Andrew Boe, a high profile lawyer, did something like that against the Criminal Justice Commission in Queensland to compel it to use its powers to hold an investigation, and won. The problem here is that the AEC is now taking action – ie getting new legal advice.

Joo-Cheong Tham is associate law lecturer at La Trobe University. He wrote a chapter on campaign finance reform in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003), Federation Press, forthcoming.

The continuing controversy surrounding the Abbott-controlled Australian for Honest Politics Trust (AHP Trust) has thrown into sharp relief the role of the Australian Electoral Commission (AEC) in enforcing the disclosure obligations under the Commonwealth Electoral Act (AEC chief intervenes in Abbott slush fund secrets).

This issue of enforcement, firstly, raises the question of the AEC’s handling of AHP Trust. It appears from newspaper accounts that the AEC in assessing whether AHP Trust was an ‘associated entity’ and, therefore, subject to disclosure obligations, relied heavily on evidence volunteered by Abbott. Brad Edgman, the AEC official responsible for enforcing the disclosure obligations in 1998, has said that he based his decision that AHP Trust was not an ‘associated entity’ mainly on the trust deed and letters from Abbott (AEC took Abbott’s word for it to keep ‘honest politics’ donors secret).

It is important to stress that the evidence that can be used by the AEC in assessing whether such a trust fund is an ‘associated entity’ is clearly not confined to the evidence volunteered by the trustees. In particular, it is not confined to the trust deed or letters written by the trustees.

The AEC can obviously request the trustees to provide further evidence. More significantly, the Act arms the AEC with significant investigative powers in determining whether an entity is an ‘associated entity’. These powers, conferred by section 316(3A) of the Act, include the power to require officers of entities reasonably suspected to be ‘associated entities’ to produce documents and to give sworn evidence. In the case of the AHP Trust, for instance, the AEC could require Tony Abbott, as an officer of the trust, to give sworn evidence concerning the purposes and activities of the trust. If Abbott unreasonably refused to comply with such a requirement or knowingly provided false or misleading evidence, he would then be committing an offence under the Act.

Indeed, given the public disquiet surrounding the AEC’s decision in 1998 determining the AHP Trust not to be an ‘associated entity’, the AEC should, when considering its present position, require the trustees of AHP Trust to provide further documents and sworn evidence. In this instance, effective enforcement and public confidence in the AEC can be met by a judicious use of its investigative powers.

It would, however, be a mistake to consider the AHP Trust episode without regard to the wider considerations constraining the AEC’s effectiveness.

Foremost is the question of adequate resources. Policing the disclosure obligations is resource-intensive – not least due to what the AEC has characterised as ‘an unwillingness by some to comply with disclosure’. It is, however, unclear whether the AEC has sufficient resources to devote to this area. In a parliamentary submission last year, the AEC drew attention to its ‘very tight budget situation’. As far as this situation continues, it must necessarily impair the effectiveness of the AEC in policing disclosure obligations.

The question of resources, importantly, reveals the institutional bind that the AEC finds itself. It is reliant on the goodwill of politicians – especially those from the major parties – for any increase in its budget. These are the very same people it regulates under the Commonwealth Electoral Act. The AEC’s position is akin to the Australian Competition and Consumer Commission being dependent on the grace of big business for budget increases. This institutional bind must be addressed for there to be effective enforcement by the AEC.

 

AEC chairman Trevor Morling

Related:  Anti-rorting proposals ignored  AEC took Abbott’s word for it to keep donors secret   Hanson still a redhead and coping well behind bars: lawyer Joo-Cheong Tham: AEC can make Abbott give sworn evidence on slush fund

The Australian Electoral Commission chairman, retired judge Trevor Morling QC, has intervened in the “honest politics” slush fund controversy, calling for the files and all legal advice to date on whether Workplace Relations minister Tony Abbott must unmask his secret donors.

Mr Abbott today maintained his refusal to take the pressure off the AEC and restore public confidence in the electoral system by revealing his donors voluntarily.

AEC officials today urgently briefed the Australian Government Solicitor (AGS) to advise whether the structure of Abbott’s honest politics trust avoided any legal duty to disclose the donors to the Australian people under existing law.

Mr Morling confirmed that in 1998 the AEC had trusted Mr Abbott’s word that he could legally claim secrecy for his donors in 1998 without seeing his legal advice or taking its own.

Mr Morling revealed that in June 2002, after questions by the Senate, the AEC took general legal advice from the AGS and the Director of Public Prosecutions on whether legal slush funds designed to destroy political opponents could now be used as a way to avoid disclosing donations to political parties.

Mr Morling said he had not yet read the DPP’s advice, but that the AGS advice was “inconclusive”.

The AEC took that advice after Labor Senator John Faulkner warned that if Abbott’s slush fund was legal, then political parties could exploit his disclosure avoidance mechanism to hide more political donations from the people of Australia.

Mr Morling said he did not know why the AEC had not investigated the trust after receiving advice that it might or might not legally avoid disclosure.

The commission not only failed to launch an investigation into the trust, but also failed to advise Senator Faulkner and the Senate of the findings of its legal advice as promised in June last year.

The AEC’s spokesman, Brien Hallett, conceded to the Herald yesterday that this was wrong.

“It was an oversight. It’s regrettable. I’ll take that one on the chin,” he said. “We should have got back to him (Senator Faulkner).”

Mr Morling also criticised the AEC for not advising him of the AGS and DPP legal advice at the time.

“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.

He said it was an open question whether admissions since Pauline Hanson’s jailing by Abbott and fellow trustee Peter Coleman, who is a Liberal Party elder and Peter Costello’s father-in-law, that the honest politics trust’s purpose was to destroy One Nation to avoid electoral damage to the Liberal Party strengthened the case for disclosure of donors.

“It may be. I’m not in possession of all the facts yet. Steps are being taken and I believe a discussion is being held today with the AGS,” he said.

Mr Morling said the AEC “must stay outside politics – you’d be surprised at the ways we have to fend off politicians and political parties trying to get what they want implemented”.

“That applies whatever government is in power – I’ve been in the job for fourteen years.”

Mr Abbott today maintained his refusal to reveal his donors voluntarily. His spokesman, Mr Andrew Simpson, said “he’s been pretty consistent on that right through.”

Asked why Mr Abbott did not want the Australian people to know who donated to the honest politics trust, he said he would ask Mr Abbott.

The Herald asked Mr Simspon if Mr Abbott had received written legal advice that the trust structure successfully avoided laws requiring transparency of political donations. Mr Simpson said he did not know.

The Herald also asked why Mr Abbott would not name the lawyer who verbally advised him that he was in the clear. Mr Simpson said he would refer this question to Mr Abbott.

The Australian Electoral Commission withdrew its 1998 demand that Tony Abbott reveal the donors to his ‘honest politics’ slush fund without seeing Mr Abbott’s legal advice or taking its own.

The AEC man then responsible for disclosure of political donations, Mr Brad Edgman, told the Herald that he backed down after Mr Abbott wrote claiming he had legal advice that he need not disclose the donors. Mr Edgman said he had never seen that advice, and did not get his own legal advice before bowing to Mr Abbott’s demand to maintain secrecy.

The AEC has refused for more than a week to disclose the basis of its backdown in 1998, but Mr Edgman said yesterday he made the decision, along with his superior,based on Mr Abbott’s letter, the ‘honest politics’ trust deed, and a look at the law concerning “associated entities’ of political parties.

Asked why he decided the honest politics trust was not an associated entity of the Liberal Party, Mr Edgman said: “I’d have to go back and have a look at it.” Mr Edgman is now director of the AEC’s parliamentary and ministerial section.

Asked why he took eight months to reply to Mr Abbott’s letter claiming secrecy for his donors, he said: “I couldn’t tell you, I really don’t know what the delay was about.”

Several electoral experts have challenged the AEC on its decision, saying the trust was clearly or at least possibly an “associated entity” of the Liberal Party The AEC took legal advice only after Labor warned that setting up legal slush funds to destroy other parties created a huge loophole in political donations disclosure laws. But it will not release that advice, and admitted yesterday it was not even investigating the matter in light of new developments since the jailing of Pauline Hanson. The AEC said it was merely “monitoring” media reports.

Recent revelations surrounding the Abbott-controlled ‘Australians for Honest Politics’ Trust (AHP Trust) and the involvement of Harold Clough, a wealthy Liberal supporter, in funding litigation against the Western Australian Division of the Democrats indicate that litigation is increasingly becoming another means of politics.

The use of litigation for party-political purposes throws up two significant issues.

Firstly, there is the secrecy surrounding the financiers of political litigation. A crucial issue is whether entities set up to engage in political litigation like AHP Trust are required to disclose the identities of their financiers under the Commonwealth Electoral Act. It is most likely that they do as ‘associated entities’; a concept that embraces entities operating to a significant extent for the benefit of one or more registered political parties.

In the case of AHP Trust, newspaper accounts suggest that Abbott controlled the activities of the fund. Moreover, while the key purpose of the trust was to fund anti-One Nation litigation, such litigation was simultaneously directed at advancing the Liberal Party’s interests. Moreover, the adverse impact of the litigation clearly conferred an electoral advantage on the Liberal Party. In other words, the combination of control, motivation and effect meant that the AHP Trust was operated by Abbott for the benefit of the Liberal Party. It was, therefore, an ‘associated entity’ under the Electoral Act and should have been required to disclose the identities of its financiers. The solution then for the secrecy surrounding the financiers of political litigation is reasonably clear: a robust interpretation and enforcement of the Electoral Act.

Secondly, political litigation sharpens the inequalities between the parties. As it stands, the monies available to the parties vary greatly largely because of the corporate contributions received by the major parties. For instance, the 2001/2002 party returns lodged with the Australian Electoral Commission reveal that the amount of private monies received by the federal ALP was more than 30 times greater than that received by the Greens. In the case of the federal Liberal Party, this ratio doubled to 60. Such disparity is astounding and bears no relationship to the electoral support these parties enjoy.

Such inequality is clearly felt during elections especially given the prohibitive cost of radio and television advertisements. At the ballot box, however, such inequality is tempered by the democratic discipline of the vote.

A different logic prevails in the legal arena. This is an arena where lawyers battle with appeals to the law. In this forum, the costs of proceedings can be very substantial. The unequal resources available to the parties, however, mean that they are not able to bear the burden of such costs to the same extent. It is this that makes political litigation a particularly potent tactic against minor parties. If political litigation becomes the norm, it will then become another way of insulating the major political parties against less well-off competitors.

The solution to this issue does not lie with prohibiting political litigation. There is no good reason for immunising any political party from the rule of law. Proper disclosure and ensuing publicity, however, will go some way to moderate any aggressive use of political litigation. At the same time, a key source of the minor parties’ vulnerability to political litigation must be tackled, that is, the unequal resources available to the parties. This must mean tougher measures relating to corporate contributions to political parties.

Joo-Cheong Tham, Associate Lecturer, School of Law and Legal Studies, La Trobe University, wrote a chapter on campaign finance reform in ‘Realising Democracy: Electoral Law in Australia’ Federation Press, forthcoming.

J.Tham@latrobe.edu.au

 

Harvest time. Image by Webdiary artist Martin Davies. www.daviesart.com

Tonight guest editor Antony Loewenstein discusses Waltzing Matilda and how John Howard used the media to try to sing away his Pauline Hanson problem (Waltzing the media, Howard style).

I’m More Australian Than You

by Antony Loewenstein

Perhaps it’s a sign of desperation (post the Hanson, Tuckey, Abbott and no WMDs in Iraq hick-ups) or maybe it’s merely the latest attempt to prove he really is the great national defender. John Howard is a master politician, if nothing else, and last week’s outcry over the attempted scrapping by the International Rugby Board (IRB) of Waltzing Matilda gave the PM a perfect opportunity to display his credentials. Like lapdogs, most of the country’s tabloid press fell into line.

The Herald Sun on August 29 cut straight to the chase in Free to Sing:

What gives the International Rugby Board the right to conclude Banjo Paterson’s Waltzing Matilda is not culturally important to Australia?

The Courier Mail published Swag of protest as Aussies get jolly angry, a longer response to the IRB’s decision. It was a disgrace, said sporting and politically appropriate representatives. Howard was quoted: “But in any event I pose the question, how are they going to stop it being sung? You try and stop 82,000 Australians singing Waltzing Matilda. You’ll only make their night.”

The Daily Telegraph called on commentator David Penberthy to rally the troops in Girt by Sea: be still my beating heart, arguing that our current national anthem is awful and irrelevant and therefore it was about time our musical heritage was re-examined:

Rather than drifting into argument over definitions of culture – and ignoring the fact that England is home to morris dancing, Chas and Dave and The Dick Emery Show – the request to sing Matilda reflects a more pressing problem at the musical core of our national identity.

Penberthy had a chance to suggest alternative anthems, but instead suggested that Australians aren’t very patriotic anyway. Compared to the Americans he may be right, but I would argue that there are numerous signs of a resurgence of national pride, such as the increasing interest and turn-out at Anzac Day and outpouring of grief for dying diggers or Gallipoli survivors.

Australians appear to be taking their history pretty seriously these days, especially if through the prism of fighting imperial wars (WWI, WWII, Vietnam, Afghanistan and now Iraq). The rightness or otherwise of the wars may be open for discussion (thought you won’t find too much of that in today’s media), and the returned servicemen and women certainly deserve State support, but why aren’t we having a look at the reasons behind the recent nationalist onslaught?

Howard is more than happy to cast himself as arbiter of Australian morality, ethics and culture. In a mere seven years, his obsessions and interests have become Australia’s as well. Unfortunately, few alternatives have received national prominence. What exactly is Crean’s vision, for example? Australians are waiting. We probably know more about Hanson’s vision than we do from the Labor Opposition.

The response to the Waltzing Matilda decision last week has been informative on the nation’s mood, and an indicator of how ordinary Australians see themselves and the future direction of their country. Mostly there were some damn funny comments.

A small selection from the SMH letters pages in the last week:

G. Borthwick, Stockton: Re the ban on Waltzing Matilda at the World Cup. I understand the IRB will put on a display at halftime of their board members threading a camel through the eye of a needle. Best of luck.

Norm Christenson, Thornleigh: May I congratulate the rugby official who saved us music lovers from having to endure yet another John Williamson version of Waltzing Matilda.

Matt Tilbury, Bondi: To avoid a possible ban why don’t the Wallabies themselves sing Waltzing Matilda? Though it may mean them having to pick John Williamson.

On the Webdiary front, there was no shortage of (appropriately) boiling blood regarding Howard’s “defending” of our egalitarianism. Phill Clarke wrote:

Frankly I’m heartily sick of the tuneless John Williamson drone at the start of Australian Rugby internationals. Why is Little Johnny trying to cling to bravely to the folk tune? Oh that’s right, I almost forgot, it’s because he’s a little battler and loves to identify himself with the “average” Australian.

There’s simply no way that the crowd singing Waltzing Matilda can compare with the power of the New Zealand Haka. If we’re still a nation searching for an identity then something a little more provocative than Waltzing Bloody Matilda is required.

If Little Johnny gets his way and changes the National Anthem from Advance Australia Fair to Waltzing Matilda I think I’ll just shoot myself now. Such a dirge! If an anthem change is required let’s at least pick a rousing, nationalistic masterpiece. Look no further than La Marseillaise or Deutschland uber alles for inspiration.

In a debate that could well tear the very fabric of our delicate country apart, a row has erupted over the exact words of Waltzing Matilda. After the posting of the words on Webdiary last week, Webdiarist Clem Colmanleapt to the old tune’s defence:

When I saw your “version” of Waltzing Matilda I was dismayed to see that you were a ‘you’ll’er.

You seem to have made the oh so common mistake of singing “you’ll” when it should be “who’ll”. It’s “who’ll come a waltzing matilda with me” for all the choruses and most of the verses. Why does it matter? It probably doesn’t. Most Australians these days probably think that resisting heavy-handed authority is all the song is about. Surely it struck people as strange that a man would commit suicide just because he had been caught stealing a sheep. The truth is that with “who’ll” his activities get a lot

more context.

Anyway, print a correction or something please…, this “you’ll” stuff is cultural revisionism or cultural ignorance, or something bad. It’s the typical Ozzie “near enough is good enough” even if it does change a significant point of the original. It makes the song just about resistance to heavy handed authority when the swagman in fact rejected most of the trappings of society, either out of necessity or choice (largely necessity, lack of work is my understanding). Either way, the idea that to live on a different path to the mainstream can be lonely, to be a real rebel, or radical for a good part of your life is to be alone, not the petty acts of defiance.

Certainly the having to walk the country for work, rejected by society puts in context our hero’s closing words “You’ll never catch me alive”. Who’ll never catch him alive?”

However, further investigations revealed that the song may contain no “correct” words. Clem reported back:

Looks like I’ve opened a can of worms on this. Spend a minute at waltzingmatilda, which has scanned copies of the original manuscripts and many different versions of Waltzing Matilda (3 main versions and 7 sub-versions). Now I see where the great misunderstanding has developed; there are different variants with different words. Even the Macpherson/Paterson version does not make it clear whether it is who’ll or you’ll, with the first written out chorus saying “who’ll” but the lead in to it from all other versus reading “you’ll” through to the last verse, starting with “who’ll” again.

At least this explains why different people sing who’ll and you’ll. So, given that you have obviously had an “accepted” version I guess I’ll need to start some sort of factional feud if I am to maintain the rage.”

What this kind of debate does is distract from the big issues. Defending the rights of Australians to sing Waltzing Matilda is something social conservatives like Howard (and Peter Beattie for that matter) love to engage in, because it purports to suggest that there is such a thing as Australian, and therefore, unAustralian. But what is Australian?

Is it Australian to set up a trust fund to destroy an alternative political party that threatened the Coalition’s electoral dominance?

Is it Australian to send back refugees to their country of origin, when their chances of persecution upon return is so high? One of Australia’s greatest writers and humanists, Arnold Zable, wrote a piece in Sunday’s Ageasking this very question to the Howard government:

We appeal to our politicians’ consciences. We say that if our Government, in our name, has been willing to participate in the invasion of Afghanistan and Iraq, and to condemn repressive regimes such as Iran, surely it should be willing to grant permanent residency to those who have had the courage to flee these despotic regimes. (Please Mr Howard, let these admirable people stay)

And is it truly Australian for a PM to allow his Minister to grossly abuse his own code of conduct, and attempt to pervert the course of justice? The case of Wilson Tuckey would suggest it may well be.

And is it Australian for a PM to lead a nation into war, at the risk of losing Australian lives, on the basis of approximate or even faulty intelligence? With human rights abuses low down the list of reasons to invade Iraq, the persecution and imprisonment in Australia of the very people who are escaping this horrid regime appears to be a contradiction of mammoth proportions, yet the mind boggles at the lack of media scrutiny of this inherent hypocrisy.

And is it Australian for a leading Opposition party to sit meekly by while a new, less accepting, more fearful nation, is essentially being formed before their very eyes? During the lead-up to Gulf War II, let it be understood that it was not only our PM who engaged in cheap, populist grandstanding. On March 14, Simon Crean was asked to respond to a Howard comment regarding the so-called Australianness of committing troops to the Gulf:

JOURNALIST: Mr Howard said today it’s unAustralian to sit on the sidelines with what is happening. What would you say to that?

CREAN: What is unAustralian is committing our young men and women to a war that can be avoided. It’s not only unAustralian, it’s poor leadership. Every effort has to be taken to keep them from the front line if that can happen. Clearly, that can happen. It can happen with more persistence, more determination, and more time. And that’s what the Prime Minister must back, because that is the Australian way. (Crean says Howard failed to make case for war)

There it is again, “the Australian way”. Maybe Crean knows something the rest of us do not. Every country needs to continually engage the issues around national identity. But where is the debate here? Instead, we have feigned outrage by Howard last week when he said:

“Waltzing Matilda is deeply evocative of Australian culture.”

Of which Australians does he speak? The boat people who came here in the 1970s? The indigenous population still suffering Third World diseases in a First World nation? The tens of thousands of English backpackers who overstay their visa here every year? The Hanson supporters feeling threatened by Asian immigration? Or perhaps the ABC “luvvies” who defend the right of Stephen Crittenden to speak his mind on religious matters?

Australia is a broad church, and for this we should be thankful. However, we should be under no illusions that Australianness has even come close to being defined.

In an article just before the last federal election, The Guardian’s Patrick Barkham wrote about the mood enveloping this country in Refugee issues dominate debate. It’s an outsider’s opinion, but a powerful reminder of the urgent need to continue our search for a greater understanding of what it means to be Australian:

Anti-Islamic sentiments are thriving. Many see multiculturalism as a dirty word, the breeding ground for terrorist sleepers who, some appear to fear, are poised to bomb the Opera House such was the depravity of their “unAustralian” Islamic upbringing in the deprived western suburbs of Sydney.

 

Smell the flowers. Image by Webdiary artist Martin Davies. www.daviesart.com

A couple of weeks ago, I visited the detention centre in Port Hedland and met some of the people there. Like many Webdiary readers, I’ve been kept informed of the plight of those held there through numerous e-mails, faxes, letters and the occasional media report. I have learned from those detained, and their friends and supporters, of the grinding monotony and hopelessness which is their daily bread. I thought I had at least an elementary understanding of how distressing such prolonged incarceration might be, especially to those who had already experienced persecution and torture.

 

But I was not prepared for what I saw when I finally set foot behind the barbed wire that contains the asylum seekers’ lives. While they have valiantly tried to make the incarceration more tolerable by painting murals and flags on the outside walls, by planting gardens and decorating their airless rooms, nothing can disguise the palpable air of despair.

Their lives are controlled by the dictates of others; every move in the compound is monitored and their transition from one section to another controlled by the ACM guards, to whom there are polite and deferential.

I spoke with mothers fretful and tearful about their bleak prospects but struggling to maintain a facade of optimism and cheerfulness in the presence of their children. The Iranian men I had arranged to meet all faced imminent deportation under the MOU signed by the Australian government with the regime still described as part of the “Axis of Evil”. They were subdued but firm that they would not accept the government’s “package” and return to Iran. I will never forget the hurt in their eyes, their despondency; strung between never ending internment here and certain punishment if there are returned to Iran.

I have never felt so totally useless. I could offer them no real hope that the government could be persuaded to change the decision to forcibly expel them from Australia. They begged me to urge the Minister at least to assist them to gain asylum in some third country more willing than Australia to help them rebuild their lives. They were as one in insisting that they cannot go back to Iran – one said that it wouldn’t matter if he was offered $200,000 instead of $2000; he would not go back because his life is forfeit if he does.

The government, of course, has made it quite clear that they will take no responsibility for the fate of those sent back once they step off the plane in Teheran. In reply to a Question on Notice, Ruddock said:

The Australian Government… respects the principles of state sovereignty and does not monitor non-Australian citizens in foreign countries.

In The Age last week, Russell Skelton revealed that inquiries in Tehran confirmed that “returning Iranians who fled the country illegally are automatically charged with immigration offences and interrogated at length”. He also confirmed what many of those in Port Hedland already know – that returnees are often held for several days at airport detention cells where they are interrogated and that political and religious dissidents face further investigation and possible charges in religious courts. They also know that many are beaten, tortured and executed.

Some of the Afghani Hazaras living in Albany in Western Australia who fled the mother-robbed, fanatical Taliban have just learned that they face a similarly uncertain future – they are to be sent back to Afghanistan, the first of the Afghan refugees to learn their fate. They were previously recognised as genuine refugees and granted Temporary Protection Visas when they arrived in Australia over three years ago. Many were the victims of persecution simply because they belong to a racial minority.

The minister’s decision to revoke their refugee status and send them back flies in the face of international law and the worsening situation in Afghanistan; the government is ignoring repeated warnings – and evidence – that the Taliban are again in control of a number of areas of the country. The UNHCR and Amnesty International have both been urging countries not to send refugees back. It is would be particularly dangerous for this group of Hazara Afghans to be sent back, since they have been persecuted by successive regimes, including the Taliban Regime, and are still targeted by groups associated with the Taliban. One man told DIMIA his family reported being visited by known associates of the Taliban warning they know he is coming back. DIMIA have refused to accept this information as valid unless he provides their names, something he clearly cannot do.

Last weekend the Minister also ordered a number of Iranian refugees to be forcibly deported to Iran, against the advice of Human Rights groups. One of these men was intercepted at the UAE by Iranian Intelligence agents and is yet to be heard from. There are other confirmed cases of people being held in the notorious Evin prison on their return to Iran. It is unspeakable that Minister Ruddock can knowingly send these people back to fate of poverty and certain persecution, and is contrary to the spirit of the Refugee Convention.

I saw the chilling realisation of their fears in Port Hedland in the form of the refurbished Juliet block, the notorious isolation block used in the past to subdue the dissenters, the angry and distressed. No expense has been spared in transforming Juliet block into a maximum-security prison within a prison. The majority of the thirty plus cells are identical with cells normally reserved in the prison system for the most serious offenders. They are complete with massive, soundproof doors, peepholes, toilets and video surveillance and have been designed to eliminate hanging points. Family units on the upper floor invalidate the claim that the centre is simply for managing people threatening self-harm.

I think it is likely that these cells have been built to house those who are to be forcibly returned to Iran, Iraq and Afghanistan. I believe those to be deported will be separated from the larger compound (transported from other centres) and held in the prison cells until they are forced to board flights to their countries of origin, places they fled in terror. The Minister has already confirmed that those Iranians who refuse to leave peacefully will be handcuffed, removed by force and escorted back to Iran, where they will be handed to police and immigration authorities.

This is unspeakable cruelty. And many of our fellow citizens find it just.

 

Red star gazing. Image by Webdiary artist Martin Davies. www.daviesart.com

Hanson’s experience shows the forces that will rise up against true grassroots participation in our political process, writes Tim Dunlop. Whether it is snobby put downs of her wide-ranging ignorance or more concerted efforts of legal attack, there is a powerful network of vested interests who have no interest at all in advancing the cause of democratic participation.

No-one who takes the idea of democracy seriously, who believes that ordinary citizens should be involved in political decision making at all levels, who believes in participatory democracy and who believes that societal ends are a work in permanent progress to be contributed to endlessly by people from every stratum of society can have anything but admiration for Pauline Hanson’s intervention in Australian politics.

She did exactly what the theory said she should do – take herself out of her comfort zone and try and have an influence on matters social and political.

In so doing, she put paid to the pernicious idea that “ordinary punters” are not interested in politics, the self-serving mantra pedalled by the media and the political elite that “ordinary Australians” are disengaged and apathetic. She formed a party, she held rallies, gave speeches – in short, she built it and they came. Her demise should be a concern to all of us.

I disagreed with nearly everything she said and with the broad thrust of her politics. I abhorred her xenophobia, her authoritarianism, and her glib contempt for expertise. But in a sense, so what? My views on her actual politics should be easily separable from my views on her worth as an engaged citizen, just as my feelings about the righteousness of her current gaol term should be separable from my views about her political fate.

I certainly do not buy into the Pauline-as-martyr nonsense that has circulated since her imprisonment, but it is still true that she presented a risk to an entrenched power-base within Australian politics and that she quite simply had to be taken down, one way or another. So while eschewing the conspiracy-theory option, we would just be plain bloody naive not to recognise that the sort of impact she was able to have as a complete outsider was a threat to a system that prefers to work through anti-democratic and semi-secretive intra-governmental organisations and mechanisms like COAG, the Council of Australian Governments (seeNational policy issues are being debated in atmosphere of secrecy).

Both left and right pilloried her accent, made fun of her ignorance and, from the national media through to the national parliament, did everything in their not insubstantial power to make her a laughing stock. Some of this was based on a genuine and justified contempt for her policy prescriptions, but too much was generated by revulsion of her person and the strata of Australian society to which she appealed.

As we all know, such attacks, for a while anyway, merely added to her allure amongst what we might call her constituency. People easily recognised the mob picking on the outsider and rallied, literally, to her support. And Hanson’s allure – for a while she was the most potent force in Australian politics since Bob Hawke’s star was ascendant – was not based, as many sneeringly suggested, on an appeal to the so-called latent racism in the Australian population at large. That was always just a convenient scapegoat for a political elite, left and right, who had simply lost touch with, and didn’t particularly like, the vast majority of those they purported to represent.

Her appeal was simply that she represented something authentic in a culture of artifact. She was transparent in an era during which the political class have become expert at concealment. She was a stillpoint in a culture of spin.

This was brought home to me at university where I had given a lecture on political rhetoric and had taken the opportunity to make fun, in passing, of Hanson and her unacademic grasp of key political issues. Thought I was pretty funny too. After the class, a student came to my office and complained that I’d been unfair to Hanson and that I should smarten up. It was the fact that student was Aboriginal that pulled me up short.

“Why the hell are you defending Hanson after what she’s said about Aborigines?” I asked, or words to that affect.

“You don’t get it, do you?”, the woman said, and she was right.

Of course, Hanson’s greatest strength, her lack of guile, was also her greatest weakness. She fell prey to seasoned opportunists like John Pasquarelli and the two Davids and ultimately to politics-as-she-is-really-fought in the form of John Howard and the Liberal Party for whom she was once an endorsed candidate.

We can see now that even while he was riding her populist coat-tails, the Prime Minister’s ideological bovver boys, the likes of Tony Abbott, were seriously plotting her demise. While the PM was making mileage out the “end of political correctness” and was implicitly taking credit for giving voice to “the battlers” who had been oppressed for so long under the yolk of Labor-led “elites” (one of the great misnomers of our recent political history), constructing a rhetoric of populism and involvement built on his own faux-credentials as a man of the people, members of his own party and circle were hell-bent on crushing the real McCoy. He gave her enough rope to hang herself which also happened to be enough rope for an inept Opposition to tie itself in knots it is still trying to undo.

The nature of Hanson’s appeal was that it bled votes from the conservative end of the traditional parties and she therefore had to be stopped, no matter where she fitted in the anti-pantheon of Howard’s carefully manufactured battlerdom.

Of course Hanson made mistakes and was in many ways her own worst enemy. I still abhor the broad thrust of her opinions, (though I suspect she herself learnt a lot during her time in politics and might no longer be capable of easy platitudes of her infamous first speech to parliament).

I have no problem with her incarceration. I think there is a lot of truth in Mark Latham’s comment that many of those demanding leniency for Hanson (including Hanson herself) have been less than willing to consider mitigating factors in other sentencing decisions, and perhaps it will make such law-and-order zealots a little more mindful about the quality of mercy. Besides, as Graham Young has pointed out, there isn’t even anything particularly harsh or unprecedented about her sentence.

And yet, her experience shows the forces that will rise up against true grassroots participation in our political process. Whether it is snobby put downs of her wide-ranging ignorance or more concerted efforts of legal attack, there is a powerful network of vested interests who have no interest at all in advancing the cause of democratic participation. There are many who are positively scared of it and many who are repulsed by it.

So, for all her failings, at some level she advanced our politics even if it was only to the extent of showing us what we might be up against if we choose to get involved as she did. Maybe others will learn from her mistakes.

In short, if you take the idea of genuine participatory democracy seriously then you simply have to take Hanson seriously. And her fate (by which I don’t mean her current gaol term) at the hands of the political class should give everyone who harbours any commitment to genuine grass-roots politics serious pause. At that level at least we should be appalled at how she was treated.

And geez, wouldn’t it be nice if the “next Pauline Hanson” was of the left?

This piece was first published at roadtosurfdom, the weblog of former Webdiarist Dr Tim Dunlop, who did his doctorate on the role of the public intellectual in democratic debate. Tim’s most influential Webdiary piece was Pull the udder one, which disproved the economic rationalist public case for dairy deregulation.