G’Day. I’ve discovered an intriguing discrepancy between Tony Abbott’s written statements to the Australian Electoral Commission about his Honest Politics Trust Fund (HPT) and what he told me in our interview on Friday.
I’d left a message at Tony Abbott’s office on Thursday asking him to call after the AEC chairman, Justice Morling, took over the AEC’s investigation of the HPT. I also asked his spin doctor, Andrew Simpson, questions on the legal advice Abbott assured the AEC validated his refusal to disclose the donors to HPT, and Andrew said he’d ask the minister. They were:
* Why didn’t Mr Abbott want the Australian people to know the identity of the donors to his honest politics trust?
* Had Mr Abbott received written legal advice that the HPT was exempt from laws requiring disclosure of political donations to the Australian people?
* Why wouldn’t Mr Abbott reveal the name of the lawyer who gave him the legal advice? (See ‘AEC chief intervenes in Abbott slush fund secrets’ at http://www.smh.com.au/articles/2003/09/04/1062548956846.html)
Now why would a politician who wanted to hide the truth talk to a journalist who wanted to ask him questions he didn’t want to answer? To his credit, Mr Abbott did call, and we spoke after 6pm on Friday night. (The news story arising out of the interview, also published in abbreviated form on page five of the second edition of The Sydney Morning Herald last Saturday, is ‘Tony Abbott: No such thing as the public’s right to know’ athttp://www.smh.com.au/articles/2003/09/05/1062549026867.html
I asked Mr Abbott whether he had given intending donors to the HPT a guarantee of confidentiality. “No. I did not tell them that their names would be publicised.”
So why didn’t the public have the right to know then, since no undertaking of confidentiality was given? “There are some things the public has no particular right to know,’ he replied.
He said two donors had come forward – businessmen Trevor Kennedy and Harold Clough – and that at the time many people thought the trust was “a good thing”. So why wouldn’t the others come forward, I asked?
“It (APT) was set up to prosecute a legal case, and that’s not a political purpose,” he said.
Here’s where it gets interesting. If the trust is a good thing, why was it designed so that its donors would remain hidden from the Australian people, I asked?
“I didn’t design the trust so that donors weren’t required to disclose. I set up the trust to support legal action.”
“I DIDN’T TAKE LEGAL ADVICE ON DISCLOSURE TILL AFTER I GOT THE AEC’S LETTER. I SOUGHT LEGAL ADVICE AND GOT ORAL ADVICE FROM A SENIOR LAWYER.”
I asked for the name of his lawyer. He refused, saying he had not advised the lawyer that “by the way, in five year’s time I’m going to dob you into Margo Kingston”.
“I just believe private conversations should be private,” he said.
I protested that the conversation was not private because Mr Abbott himself had disclosed it in his letter to the AEC as the basis for his refusal to reveal his donors. And only five days before Mr Abbott had released the letter – and thus the conversation with his lawyer – to the public by giving it to the Australian Financial Review.
He responded with a personal attack on me, which I will report in another entry. He did not answer my question. I then asked if his lawyer had seen the trust deed before offering his or her legal opinion? “I’m not going to disclose that,” he replied. Why not, I asked? He said he’d given me enough time and terminated the call.
BACKGROUND: Tony Abbott finalised the establishment of his Honest Politics Trust on August 24, 1998, three weeks after he’d fallen out with Terry Sharples, a One Nation dissident. Sharples had just launched legal action against One Nation after Abbott organised two free lawyers for him and gave his personal, written guarantee to cough up Sharples’ out-of-pocket expenses after a still-secret donor promised to stake Abbott.
The AEC read a news story in The Australian about the HPT on September 1, 1998, which stated that Abbott had already raised meanrly$100,000. As a result, the AEC wrote to Abbott on September 18, advising that the HPT looked like an “associated entity” of the Liberal Party and that therefore donations to it should be disclosed to the Australian people.
Abbott replied on October 20. The full text of his letter and the AEC’s reply is in ‘AEC pulls up its socks, starts serving the people’ at http://www.smh.com.au/articles/2003/09/04/1062548971030.html. The letter said, in part:
So far, the Trust has raised nearly $100,000 – almost all of which is committed to supporting the action brought by Mrs Barbara Hazelton .
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.
See the problem? Abbott told the AEC he had sought legal advice on donor secrecy BEFORE collecting donations. He told me he got his legal advice after the donors had paid up, in response to the AEC’s letter of demand. Has he misled the AEC, or Herald readers?
But there’s another, even more disturbing question. Did Mr Abbott get ‘legal advice’ at all, or just an off-the-cuff first take the lawyer did not intend to be represented as considered advice?
Why won’t Abbott say whether he briefed his lawyer with the HP Trust deed? I am a lawyer by training, and practiced law for a few years. In my experience, no self-respecting lawyer would ever give advice which his or her client intended to be acted upon by the authorities – in this case the AEC – without being briefed with and considering the relevant material.
Did Abbott’s lawyer know that his opinion would be used in this way? Has Abbott misled the commission not only in the timing of his legal advice, but its very status? Remember, the AEC relied on Mr Abbott’s letter to backdown on ordering disclosure. It took his word for it – and did not seek its own legal advice, even though the HPT was a new type of weapon in Australian politics. It was this profound error of judgement – if not breach of its legal obligations to enforce political donation disclosure laws – which the AEC is now scrambling to rectify in its new investigation of the trust. What if the AEC’s decision to trust the word of Tony Abbott was misplaced?
I advised the AEC of this new information yesterday, and AEC spokesman Brian Hallett said he would “send it up the line”. I asked Mr Hallett whether the AEC was now asking Abbott the questions it failed to ask him in 1998.
“I can’t give you a running commentary on what we’re doing,” he said, because the AEC didn’t want to broadcast its strategy. But he assured readers that the AEC was no longer just reading media reports on the HPT, and was now working more actively on the investigation. “We do take our accountability (to voters) very seriously,” he said.
Mr Hallett said the AEC would be happy to consider information on the HPT provided by the public, and their input on what questions they’d like Mr Abbott to answer. The AEC’s Canberra head office number is 02-62714411. Its fax number is 02-62714558
I also asked Mr Hallett what penalties there were for misleading the AEC. He got back to me with the answer that misleading the Commission would come under the Uniform Criminal Code, which makes it a criminal offence to provide false or misleading information to a Commonwealth Government department. “We don’t have a view on whether he has misled,” Mr Hallett said. “We don’t have enough evidence. If you have particular information, you can put that before us.”
Amazing, hey? Apparently it’s an offence for a politician to mislead the public service! I wonder who enforces that law? I’m checking it out – wouldn’t it be wild if Peter Reith could be investigated for misleading the public service over children overboard when he falsely claimed to the public service that a video and photographs proved the allegation? Politicians now get no penalty for misleading the people through the Parliament or the media. Could they be brought to account to the people if they mislead our public service? I’ll get back to you on that one.
I would have telephoned Mr Abbott with my new questions, except that I was advised that after finishing our interview he said he would never take my call again. I’d be happy to take his. In the meantime, I’ll pull together some questions to email to his office. Send me any questions you’d like me to ask on your behalf.