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.
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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.
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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.
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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.