In (partial) defence of Abbott
A couple of days ago, John Quiggin posted,
Our legal system behaves in strange ways. Pauline Hanson was jailed for three years for a highly technical breach of the electoral registration rules. But apparently it’s OK for one political party to foment and fund legal disputes within another.
I disagree with him on both counts. On Hanson’s sentence, I think she deserved to have the book thrown at her. I share the sentiments of Quiggin’s commenter, Geoff:
Criminal fraud to obtain $500,000, and some people think that the sentence is “too harsh”, or that “community service” is somehow more appropriate.
A quick google reveals that there are many sentences that are proportionate to Hanson’s, for similar offenses… Imagine the outrage if the $120,000 dole cheat got away with community service!
I also agree with Mark Latham when he said, “Well Mrs Hanson spent the last New South Wales election campaign campaigning for tougher penalties — and now she’s got one. I think it’s important to recognise that people who break the law in a serious way pay a serious penalty.”
My initial reaction to Abbott’s anti-Hanson slush fund was, “He shouldn’t have lied to the media, but so what? If Hanson and Ettridge committed a crime, somebody should push for their prosecution.” As I’m no great fan of Tony Abbott’s, this was difficult — I really wanted to jump on the bandwagon and bash him for yet another example of his unfitness for office.
I subsequently read in this leader that Abbott’s behaviour was more than just shady, it was possibly illegal:
Mr Abbott says his shadowy operations were motivated by his belief that One Nation jeopardised not only his government but Australian social cohesion.
That is a judgement anyone is entitled to make or to dispute. That is political freedom. It is one thing, however, to wish to counter a political threat. It is another to actively promote and assist in legal proceedings to that end. … Mr Abbot now concedes he twice arranged pro-bono lawyers to assist Mr Sharples. His actions have a whiff of the old offence of maintenance and champerty, meddling in another’s law suit for his own advantage.
The tone of that sentence implies that maintenance and champerty are a couple of old laws that are no longer on the books. However, Ozplogistan’s resident legal eagle Ken Parish informs us that Queensland might not yet have repealed them:
As far as I can see on a very quick search, although the tort of maintenance has been abolished in several States, it still exists in Queensland. Moreover, it’s difficult to see Abbott and his fellow Sharples benefactors successfully making out any of the defences discussed above. Hanson may yet have the last laugh.
Indeed, though she will be (thankfully) laughing from a prison she shares (as the Herald Sun relevantly pointed out) with a lesbian vampire killer.
In a June 1999 Green Paper on Legal Profession Reform, the Queensland Government rejected a proposal to abolish maintenance and champerty in order to allow contingency fees for litigation (pdf, pp20-21). The torts were certainly on the books in Queensland in 2001, when the case of Elfic Ltd & Ors v Macks & Ors (pdf) was heard, and I don’t think they’ve been repealed since then.
Still, I’m not quite ready to sink the boot into Abbott. I have a question about the law’s application in this case. In Elfic v Macks, McMurdo P makes the following comment (p18[63]):
The essence of the civil tort of maintenance is “… the officious intermeddling in and supporting litigation in which the maintainer has no legitimate interest, the invasion of a person’s right not to be harried in courts of justice by litigation”.
Does Tony Abbott (or any other Australian taxpayer, voter, citizen or resident, for that matter) not have a legitimate interest in seeing Pauline Hanson and David Ettridge held accountable for fraudulently registering a political party and fraudulently obtaining $500 000 of public funding? Essentially, does the right of Hanson “not to be harried in courts of justice by litigation” outweight the right of the Australian public to have faith in the integrity of their democratic system of governance?
I’m not convinced. While the electorate might find Abbott’s actions to have been dishonest, underhand or generally repugnant, to find that they were illegal would in my view go too far.
On the other hand, there are some aspects of the situation that I am more concerned by, and they concern Abbott’s methods in raising money for the slush fund. First, did the Minister offer favours in return for donations? Sharples says that’s what Abbott told him, and Abbott doesn’t deny saying it:
Asked if Mr Sharples was a liar, Mr Abbott said: “We all have recollections of events.
“And certainly I don’t recollect ever making any comment remotely like that.”
The alleged donor involved is “construction magnate” Harold Clough. It’s not hard to imagine the sorts of favours the rabidly anti-CFMEU Abbott might have offered a construction boss. It would also be good to find out exactly what John Samuels did on Abbott’s instruction. He was allegedly the “bagman” who organised donations from WA businessmen (presumably including Clough), and who Sharples claims made threats against his life. Unfortunately, the truth about those claims will probably never be known.
Second, there are some questions about the disclosure requirements of such funds:
When the matter of Mr Abbott’s funding of people to take legal action against One Nation was raised in a Senate committee last year, the commission admitted such funds were “uncharted waters” in terms of electoral law.
The commission said it considered “it would be worthwhile seeking formal legal advice on the matter” on June 8 last year. So far no more detailed answer has come back.
Given that the AEC advised Abbott that he was not required to disclose details of donors to the funds, he is probably safe from any criminal proceedings. However, there is a possibility that he will be forced to make a belated disclosure. This is definitely desirable. I would not be surprised if other very senior Liberal and National politicians had made donations. I wouldn’t be surprised if Labor and Democrat pollies had made donations. I wouldn’t be surprised if Howard had made a donation, which would obviously have massive implications for the future of his government.
Most importantly, uncovering Abbott’s dodgy fundraising practices would allow me to join in all the fun!
In summary, I suppose, I hope Hanson refrains from suing Abbott, but I hope the AEC forces Abbott to disclose the sources of his slush funds. I think pursuing a fraudulently registered political party is a legitimate (and even noble) course of action, but I think it needs to be done in a very open and accountable manner. Otherwise, it would be a matter of defending our democracy with one hand while beating the shit out of it with the other.
