All posts by Joo-Cheong Tham

Did Jones bribe Howard? Public inquiry needed

Joo-Cheong Tham is an Associate Law Lecturer at La Trobe University.


The allegations made by John Laws last Wednesday raise very serious questions. As is well-known, Laws has alleged that Alan Jones pressured John Howard into appointing David Flint as chair of the Australian Broadcasting Authority by threatening to withdraw support for the Coalition in the 2001 federal election.

If true, Jones would have engaged in an act of bribery; an offence under both the Commonwealth Electoral Act and the Criminal Code Act. If Howard responded to Jones� threat, he too would be guilty of the same offence. The fact that no brown paper bags of money were involved makes no difference as a matter of law or principle: the gravamen of corruption, the exercise of public power for private gain, will clearly be present.

Moreover, if these allegations were proven to be true, they would vividly demonstrate that Australian political life has yet to deliver on democracy�s promise that all citizens have equal access to political power. Some, it would seem, are more equal than others.

At this stage, we are, of course, far from knowing the true situation. There are only allegations and denials at hand. The water is also muddied by the intense rivalry between the accuser, Laws, and one of the accused, Jones. At this point, Howard and Jones, like all other persons accused of a crime, are entitled to the presumption of innocence and judgment is best reserved.

This does not, however, sanction inactivity. Uninvestigated, these grave allegations would still leave a dark stain on Australian political life. They will create a strong perception of corruption at the highest levels of government with Kirribilli House seen as the venue of choice for bartering away the public interest. Such a perception will have a corrosive effect on the standards of public life. It will also to deepen the disenchantment that the community already has of the political process.

It is imperative then that these allegations be thoroughly investigated. This needs to occur on at least two fronts.

The police should investigate whether Howard and Jones have engaged in criminal wrongdoing. Such an investigation could be triggered by a formal complaint made by either the Opposition or Laws.

Moreover, there should be an independent public inquiry into these allegations examining not only the question of illegal conduct but also whether there has been improper or unethical conduct.

There should also be a broader investigation into the relationship between politicians and influential media commentators like Jones and Laws. Acts of corruption are usually the tip of the iceberg.

The real danger is that Laws� allegations, if true, prefigure a web of informal understandings where political patronage is regularly traded for favourable media coverage or, more insidiously, where political action is profoundly shaped by the fear of media reprisal.

If such understandings exist, Australia�s pretensions to democratic credentials might very well be just that.

Fear politics yet again on new terror laws

Joo-Cheong Tham is an Associate Law Lecturer at La Trobe University and has appeared as a witness before parliamentary committees inquiring into anti-terrorism legislation. He writes for Webdiary on anti-terrorism and political donation disclosure laws


Two and half years after September 11, it is clear that the Coalition government has developed a distinctive modus operandi when proposing new anti-terrorism laws. Its formula rests on five key strategies.

First, capitalise on terrorist incidents by proposing new anti-terrorism measures in the wake of such events and justifying them on the basis of being �tough on terror�. So a raft of anti-terror legislation was proposed shortly after the September 11 attacks. Similarly, the Brigitte affair prompted far-reaching offences which have the effect of cloaking much of ASIO�s activities in secrecy. The Madrid bombings provide the justification for the latest tranche of changes.

Second, propose changes which have nothing or very little to do with these terrorist incidents. It is hard, for example, to see the link between the Brigitte affair and making secret the exercise of ASIO�s powers to compulsorily question and detain without trial when these powers could but were not used against Willie Brigitte. What the proposal to ban persons who have trained with terrorist organisations from publishing their memoirs has to do with the Madrid bombings is equally a mystery.

Third, fetishise proposed anti-terrorism measures by depicting them as imperative in the �War on Terror�. Imply that failure to adopt such measures will mean, in the extreme case, the murder of innocents. Insinuate that those who fail to support such measures are, at best, unintentional allies of terrorists. In December 2002, for instance, the Coalition government strongly hinted that the ALP�s delay in supporting a detention without trial regime would result in further terrorist attacks and that blood would be on the ALP�s hands if these attacks occurred in the ensuing summer.

Fourth, ignore the existing panoply of anti-terrorism powers. Imply that measures are needed because a gap exists. Hence, the present proposal to extend the detention/interrogation time of persons suspected of �terrorism� offences to 24 hours is made without any public acknowledgment of ASIO�s extensive powers. These are powers which can result in a person not suspected of any criminal wrongdoing being detained incommunicado for rolling periods of seven-days and interrogated for up to 24 hours with no right to silence and only a heavily circumscribed right to legal representation.

Fifth, pretend that the proposals only target persons engaged in extreme acts of political/religious violence. Ignore the fact that the proposals and current laws impose guilt by association by making illegal conduct peripherally connected with acts like bombing and hijackings. Obscure the fact that these laws draw in their net certain acts of industrial action and political activity.

The current proposal to extend the detention/interrogation period, for example, is portrayed as if it only targeted terrorist suspects when it, in fact, catches persons suspected of committing a �terrorism� offence; an offence that can be committed merely by possessing a thing related to a �terrorist act�. �Terrorist act�, in turn, embraces certain acts of industrial action. Thus, a person holding a leaflet promoting picketing by nurses is, arguably, committing a �terrorism� offence.

We have, in sum, a formula based on opportunism, exaggerations and misrepresentations. It is these elements that lend substance to the charge that the Coalition government is exploiting the real fears that the Australian public has of terrorism and taking advantage of community perception that it is better at handling security issues than the ALP. It is this formula that makes up the politics of fear in the �War on Terror�.

Such politics might prove to be an electoral winner for the Coalition but there will be clear losers. The health of Australia�s democracy will be eroded by the acidic effect of fear and misrepresentations. Laws that trench upon established rights and liberties and do very little in preventing extreme acts of political violence will be on the statute books. Most of all, there will be the sharp irony of Australians being no less safe from extreme acts of political violence but, in fact, all the more vulnerable to the arbitrary state power.

Enforcing disclosure: AEC can make Abbott give sworn evidence on slush fund

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.

When litigation’s just another way to play politics

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.