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Michael Head[*]
The conviction and jailing, in August this year, of former MP Pauline Hanson and one of her One Nation Party co-founders, David Ettridge, on charges of fraud set a dangerous precedent for use against any electoral grouping considered a threat to the political establishment. This author has fundamental differences with One Nation and its right-wing nationalist politics. But a careful review of the case shows that after a protracted political and legal campaign, involving senior members of the Howard government, the law was misused to remove an opposition party from the political scene, violating basic democratic rights in the process.
As reviewed in the concluding part of this article, the Queensland Court of Appeal concluded on 6 November 2003 that the convictions had no legal foundation whatsoever. The court quashed the convictions and directed that verdicts of acquittal be entered. It took less than a day of hearings for the three Supreme Court justices to determine that the charges against the pair flew in the face of long-established legal principles.[1]
Hanson and Ettridge were each sentenced to three years jail without parole under the Criminal Code (Qld) ('the Code').[2]
Both would have been barred from standing for parliament, for the duration of their sentences.[3] Their alleged crime arose from registering Pauline Hanson's One Nation as a party under Queensland's electoral laws in December 1997. They were found guilty of supplying the names and addresses of 500 party members whom the jury and an earlier civil case found to be merely supporters. Hanson was also convicted on two further counts relating to electoral funding paid to One Nation as a result of its registration.
In handing down the sentences, District Court Chief Judge Patsy Wolfe admitted that neither Hanson nor Ettridge had obtained any personal financial benefit from the party's registration or electoral funding. She specifically referred to the fact that Hanson, with Ettridge's likely support, had organised a public appeal to repay the ha1fmillion dollars in electoral funding paid to One Nation.[4] Yet, the two were convicted, under the vague wording of s 408C(l)(d) of the Code, of 'dishonestly gain[ing] a benefit or advantage'.
The only 'advantage' accruing to Hanson and Ettridge was acquiring the right to have their party's name on the Queensland ballot and to claim reimbursement for electoral expenses. Forming a political party and standing for election under its banner are fundamental democratic rights that should be freely available to all. They have been transformed into a 'benefit or advantage' because of anti-democratic electoral laws adopted in the 1980s and early 1990s in order to erect considerable barriers to ordinary people challenging the major parties.
Moreover, voters have a right to know the political affiliations of the candidates standing in an election. It is also a traditional democratic principle that internal party affairs, including a party's organisational structure and dispute-settling mechanisms, are matters for that party's members, free from official interference.
In her brief sentencing remarks, Judge Wolfe pointed to the political basis of the proceedings. She ruled that lengthy jail terms were necessary because the pair had. undermined the present political system. Judge Wolfe stated: 'The crimes you have committed affect the confidence of people in the electoral process'.[5] She further suggested that One Nation's registration had possibly affected the outcome of the 1998 Queensland state election, helping to defeat a Coalition government and replace it with a Labor government holding office with the help of one independent. But One Nation won nearly a quarter of the votes in that election because of popular dissatisfaction with the two major parties, which Hanson exploited in a populist manner, not because she deceived voters about her party's structure.
The chronology of the case reveals that its course was determined by definite political calculations, not by concerns for legality. Every turning point in the proceedings against Hanson and Ettridge was preceded by fears in the political and media establishment that One Nation's electoral successes would destabilise the parliamentary order.
Hanson, Ettridge and a third figure, David Oldfield, established Pauline Hanson's One Nation following Hanson's unexpected election to federal parliament in 1996. In that year, the Labor government was defeated in a landslide, a result of the anger and resentment generated by years of declining living standards for many working people. Having been disendorsed by the Liberal Party, Hanson won a previously safe Labor seat by presenting herself as an anti-establishment candidate, making populist appeals to anti-Asian and anti-Aboriginal sentiment.[6]
Howard's Liberal-National coalition won office by appealing to ordinary 'battlers' but its industrial relations legislation and first budget, which slashed education and social spending, provoked widespread hostility, including a storming of Parliament House by trade unionists and supporters. In the aftermath of these events, both Howard and the media began giving prominence to Hanson's reactionary views, which served somewhat to divert the backlash against the government by blaming social deprivation on Aborigines, welfare recipients and immigrants. Howard defended Hanson's right to 'speak about certain things without being branded as a bigot and a racist'.[7]
It was in this context that Hanson, buoyed by her new-found fame and as a sitting MP, registered Pauline Hanson's One Nation as a federal party. Registration was a simple process. At the time, the Commonwealth Electoral Act 1918 provided for almost automatic registration of parties that had a parliamentary member, while making it considerably more difficult for other parties to achieve that status.[8]
In October 1997, Hanson and Ettridge also applied to register the party for state elections under the similar provisions of the Electoral Act 1992 (Qld) ('the Queensland Act'). They submitted a substantially similar party constitution as that lodged to register the party federally. Section 3 of that Act defines 'registrable political party' as one that either is a parliamentary party or has at least 500 members who are electors. 'Parliamentary party' is defined as 'a political party of which at least 1 member is a member of an Australian parliament' (emphasis added). This would appear to entitle a party represented in any Australian parliament to be registered. In an apparent contradiction, however, s 70 of the Act requires parties without representation in the Queensland Parliament to lodge at least 500 members' names when applying for registration.
Whether Hansen and Ettridge ought to have been able to rely on s 3 to apply for registration, in any case, they sought to fulfil the requirements of s 70, lodging 1000 members' names-twice the requisite number-to register the party. The Queensland Electoral Commissioner Des O'Shea verified that a significant proportion of those on the list believed themselves to be members, requested adjustments to the party constitution and granted the registration, without receiving any objections, in early December 1997.[9]
Following the Queensland state elections in June 1998, however, the official response to Hanson shifted abruptly. In the elections, One Nation attracted almost 23% of the vote, won 11 seats, outpolled the Liberal party and the National party and helped oust the Borbidge Coalition Government.
If that result were replicated in the federal election due later that year, One Nation could have potentially controlled the Senate and taken seats in the House of Representatives, undermining the two-party system. Almost immediately, the Howard Government and the media turned against Hanson, highlighting One Nation's links to ultra-right wing outfits, its unusual organisational structure and its internal disputes over election expenses and finances.[10]
The Howard government had its own specific concerns: One Nation threatened to destroy its electoral base, just as it had ravaged that of the Borbidge Government. One of Prime Minister Howard's closest proteges, Tony Abbott, then a cabinet parliamentary secretary, declared his intention to fight for the deregistration of One Nation, both in Queensland and federally. One Nation was 'not a validly registered political party', he told the House of Representatives, but 'a couple of political and financial brigands trying to hoodwink decent patriotic Australians'.[11]
Unable or unwilling to combat One Nation politically, the Howard Government adopted a two-track strategy. On the one hand, it set about implementing One Nation's agenda in order to win back the constituency that had shifted to Hanson, notably small business and rural voters - traditional Liberal and National party supporters-who had become disaffected with the government's program. The government adopted many of Hanson's policies: refugee rights were reduced, welfare programs subjected to 'mutual obligation' impositions and Aboriginal funding cut.
On the other hand, Abbott turned to more secretive manoeuvres, meeting disgruntled ex-One Nation members to solicit litigation. At one point, he supported a former One Nation candidate, Gold Coast accountant Terry Sharples, to spearhead a deregistration case, personally guaranteeing that Sharples would not be 'out of pocket'.[12]
Abbott worked with ex-New South Wales Liberal leader, Peter Coleman-who is also Treasurer Peter Costello's father-in-law - and a former Labor federal minister, John Wheeldon, to set up a secretive 'Australians for Honest Politics' fund of at least $100,000 to finance legal bids to de-register the party. Liberal Party state president Paul Everingham, National Party leader Tim Fischer, National Party Senate leader Ron Boswell and Senator Bill O'Chee were also involved in encouraging or assisting ex-One Nation members to take legal action.[13]
The immediate mechanism for the legal campaign was the Queensland Act. Similar legislation was introduced in most Australian jurisdictions in the 1980s and 1990s, providing for public funding of election campaigns and party registration, to shore up the two-party system. During the second half of the 1980s, the proportion of votes going to independents and minor parties rose steadily amid mounting discontent with both major parties. In 1987, the Hawke Labor Government clung to office only by obtaining the second preference votes of minor parties and barely survived the 1990 election, polling a near-record low of less than 40% in first preference votes.
The electoral laws have served to augment the flagging finances of the old parties-Labor and the Liberal-National Coalition received $32 million for the 200 I federal election - while handing the electoral authorities considerable powers to interfere in the affairs of new parties. Established parties with sitting MPs are entitled to registration, and therefore to control funding for election campaigns. But parties not represented in parliament must submit lists of names and addresses of hundreds of members, and invariably are less able to bear the registration fee. Membership lists submitted for registration become available for public inspection, potentially opening the members up to media, government and intelligence prying. Even ifthey do not qualify for funding, registered parties are required to file extensive annual returns, supply other documents or information demanded by authorities, publicly name their financial contributors and submit to invasive inspections.[14]
Aided by the media campaign against One Nation and the rifts, resignations and expulsions wracking the party, Howard's government narrowly survived the 1998 federal election, despite polling fewer votes than Labor, while Hanson lost her seat. One Nation still obtained a million votes, but only one of its candidates, Heather Hill, won a Senate seat. As part of the legal campaign, One Nation opponents challenged Hill's election in the High Court. The Court stripped Hill of her seat in June 1999 on the technical ground that she held dual Australian-British citizenship and did not renounce her British citizenship until after the election.[15] The High Court held that Hill was a citizen of a 'foreign power' within the meaning of s 44(i) of the Constitution, although Britain was not a foreign power when the Constitution was written. Acting as the Court of Disputed Returns, the High Court subsequently declared another One Nation candidate, Len Harris, elected to the resulting Senate vacancy.
The main focus remained the deregistration case mounted by Sharples, even though he subsequently fell out with Abbott. Sharples did not commence his application for judicial review of One Nation's registration until early July 1998, well after the time limit of one month after the registration had come to his notice. [16] Initially he wrote to Commissioner O'Shea requesting the cancellation of the registration. O'Shea replied that after careful consideration he was satisfied the registration was made in accordance with the Queensland Act.
Despite the delay, Queensland Supreme Court Justice Roslyn Atkinson permitted Sharples to proceed with an application for judicial review of O'Shea's decision to register One Nation. In August 1999, Atkinson J upheld Sharples' claim that One Nation's registration had been 'induced by fraud and misrepresentation'. [17] There was no doubt that the I 000 people whose names were lodged by Hanson and Ettridge regarded themselves as One Nation members and supported its registration. Atkinson J conceded that 'the evidence shows that it [the party] had more than 500 people who believed themselves to be members'.[18] Yet, she concluded that they were not, in fact, members because 'those who controlled Pauline Hanson's One Nation Ltd' intended to restrict membership of the party to only Hanson, Ettridge, Oldfield'and perhaps other elected members of Parliament'.[19]
In effect, Atkinson J overrode the stated intentions of Hanson's supportersto register the party-by declaring that because of its autocratic structure, One Nation technically had only three members: Hanson, Ettridge and Oldfield. All other members had purportedly been reduced to the status of members of another legal entity, the Pauline Hanson Support Movement Inc, by then renamed the Pauline Hanson One Nation Members Inc. In law, however, as was later argued before the Queensland Court of Appeal, the rank-and-file members may have in fact obtained contractually enforceable party membership rights despite the authoritarian constitution devised by Hanson, Ettridge and Oldfield.[20]
Under the Queensland Act, making false statements to the electoral authorities is punishable by a maximum of six months jail or a fine of up to 20 penalty units, and improperly influencing the Electoral Commissioner is punishable by one years imprisonment,[21] but the time limit for prosecuting under that Act had passed. Instead of dropping the matter, it was referred via the state's Crown Law Officer to the police for investigation under the far more serious fraud provisions of the Criminal Code, which provides for maximum sentences of up to ten years imprisonment.
Four months later, in January 2000, highly-publicised police raids were conducted against One Nation offices in Ipswich, near Brisbane, and Sydney. Police tipped off the media in advance, ensuring that pictures of the raids were splashed all over the tabloid press.[22]
Mounted on the pretext of investigating the case against the One Nation leaders, the raids were timed to occur just before a three-member Supreme Court panel handed down its judgment on an appeal lodged against Atkinson J's ruling.
In February 2000 the Court of Appeal ruled against One Nation's appeal.[23] In the same month, Commissioner O'Shea increased the legal stakes by taking Hanson and Ettridge to court to make them personally liable to repay nearly $500,000 in electoral funding that One Nation had received, even though the money had already been largely spent on reimbursing election expenses.
The next turning point came with the February 2001 state elections in Western Australia and Queensland. After being written off by the media as a spent force, One Nation again shocked official circles by winning nearly I 0% of the vote, and close to 20% in rural areas, contributing toward crushing defeats for the Coalition parties. The party advanced little in the way of program or policies and barely campaigned. But its call to place all incumbent candidates last on the ballot paper resonated with alienated voters.[24]
The decision to prosecute Hanson and Ettridge followed soon after. The Queensland police issued the fraud summonses in July 2001, a full 18 months after the Ipswich and Sydney raids, and just four months before the next federal election, in which Hanson was standing for the Senate. In the campaign for the election, Howard stepped up his implementation of Hanson's agenda, appealing to her constituency. Supported by Labor, his government mobilised the armed forces to repel the Tampa and refugee boats,[25] a policy first advocated by Hanson. The government also seized on the September 11 terrorist attacks in the United States to declare the necessity for far-reaching 'anti-terrorism' legislation, which erodes basic democratic rights,[26] echoing Hanson's calls for tougher 'law and order' policies.
In this charged political atmosphere, in late November 2001, Queensland Police raided the electorate office of One Nation's remaining federal Senator, Len Harris, seizing documents and computer files, supposedly as part of their investigation into Hanson and Ettridge. A Senate Privileges Committee report, only released on the day the pair was jailed, found that the seizures were unlawful because none of the 74,098 pages confiscated. by police were related to election reimbursement expenses.[27]
In May 2002, two days before a Brisbane magistrate committed Hanson and Ettridge for trial, the authorities further blackened their names by charging Hanson with dishonestly spending $17,000 from the fighting fund set up to pay back the Queensland Electoral Commission. This charge was dropped several days after Hanson and Ettridge were imprisoned, even though the Queensland Director of Prosecutions, Leanne Clare, insisted there had been a prima facie case of fraud against Hanson.[28] Hanson's lawyer, Chris Nyst, protested that this further charge served to publicly paint Hanson as a 'cheat and a liar and a fraud' in the lead up to her trial.[29]
Hanson and Ettridge immediately appealed against their convictions. They unsuccessfully applied for bail pending the outcome of their appeal, with their applications being refused by Brisbane Supreme Court Justice Richard Chesterman, the Queensland Court of Appeal and ultimately High Court Justice Ian Callinan.
In rejecting the bail applications, the Queensland Court of Appeal nevertheless stated that Hanson and Ettridge appeared to have a substantial case for overturning their convictions.[30] The Court said admissions by Crown prosecutor Brendan Campbell that One Nation supporters may have had party membership rights appeared to destroy the basis for the convictions, as the Crown may have conceded that One Nation members could have enforced their limited rights by legal action, and were in law thus members of One Nation.[31]
On November 6, the Court of Appeal in quashing the convictions ultimately confirmed these observations. There was never any dispute that more than 1000 people -twice the requirement under the Electoral Act -supported the registration. The Court of Appeal reviewed, in its judgment, the process by which they had joined the party.
On the evidence here, each person whose name appears on the contentious list provided to the Electoral Commissioner filled in an application form headed 'Pauline Hanson's One Nation' which is the name of the political party, and sent it, as requested on the form, to 'Pauline Hanson's One Nation' at a post office address at Manly, New South Wales. The membership fee paid by those applicants was of the order of$40/50. The application was processed at the Manly office ... the applicant was issued with a receipt in the name of the political party, and a membership card ...[32]
Applying 'orthodox contract theory', the judges ruled that the 'aggregation of these objective circumstances suggests strongly that the applicant offered to join the political party, which then communicated its acceptance of the offer by the provision of the membership card'.[33]
Thus, the list of signatories became members and objectively retained rights under the party constitution, regardless of the subjective intentions of the party's leaders or their subsequent conduct in seeking to deny those membership rights. The judges cited several leading cases that make this point legally indisputable.[34] By not making this elementary legal distinction, the trial judge, District Court Chief Judge Patsy Wolfe, had erred.[35]
But they went even further. Chief Justice Paul de Jersey concluded that the 'preponderance of the available evidence' indicated that the party's recruits probably became members of both the party and the Support Movement -the body which contained branches and gave them voting rights. Nevertheless, even if they were deemed only to be members of the support group, that would still mean they were members of a 'related political party' under ss 3 and 6 of the Queensland Act, entitling One Nation to be registered under s 70(4)(e).[36] Whilst One Nation did not raise this at the civil case (because it was not the basis on which they applied for registration), Ettridge raised this precise issue at an early stage in the criminal trial, yet Judge Wolfe decided not to refer it to the jury to consider. By itself, this defect also 'warranted the quashing of the convictions'.[37]
In addition, de Jersey CJ observed that Judge Wolfe had failed to instruct the jury that Ettridge, who was One Nation's chief administrator, could not be convicted of 'aiding' Hanson under s 7 of the Code unless it was proved that he knew her actions had a dishonest purpose.
In summary, on every count, the Court of Appeal concluded that the convictions had no legal basis whatever. Nevertheless, de Jersey CJ emphasised that the process remained lawful.[38] Hanson and Ettridge are unlikely to receive compensation for their 78 days - nearly three months -behind bars.
Despite the ultimate acquittals, the five-year legal and political offensive against One Nation raises disturbing questions. Leading figures associated with both major parties came together, using secret funds, and the police, prosecuting authorities and the media came to the party to use the electoral laws to eliminate a political formation that had become a danger to them. They had no fundamental differences with Hanson's policies, but spared no effort to destroy her party.
The Court of Appeal judges were aware that the obvious question remained - why and how were Hanson and Ettridge jailed in the first place? 'Members of the public will undoubtedly, however, query why the crystallisation of the appellants' current position need have awaited a lengthy trial - approximately five weeks, and then an appeal, de Jersey CJ acknowledged.[39]
There was, he noted, 'no easy answer to that question'. He sought to blame the pair's lack of experienced legal counsel at their trial, as well as poor preparation and presentation of the case by the Director of Public Prosecutions (DPP). He suggested that government under-funding of the DPP's office had prevented it from hiring 'highly talented lawyers' who could have avoided 'the present difficulty'.[40]
McMurdo P seemed to attempt to distance the judiciary from the political machinations that led to the convictions, going out of her way to indicate that the court's quashing of the convictions was not affected by political considerations. She condemned various government leaders, including Prime Minister Howard and New South Wales Premier Bob Carr, for commenting publicly on the severity of the sentences handed down by the District Court.
The politicians' comments 'could reasonably be seen as an attempt to influence the judicial appellate process and to interfere with the independence of the judiciary -for cynical political motives'. She warned that 'a failure by legislators to act with similar restraint in the future, whether out of carelessness or for cynical short-term political gain, will only undermine confidence in the judiciary and consequentially the democratic government of this state and nation'.[41]
The fact remains, however, that the jailing of Hanson and Ettridge cannot be explained as an extraordinary series of breakdowns in the legal understanding of prosecutors, lawyers and judges.
Regardless of one's opinion of Hanson, Ettridge and One Nation, the operation against them constitutes a warning of the ruthless and anti-democratic methods that may be used in the. future against parties which, unlike Hanson's, advance a genuine and progressive alternative to the political establishment.
[*] Michael Head teaches Law at the University of Western Sydney.
This article draws in part from reports previously published by the author and Linda Tenenbaum on the World Socialist Web Site.
email: m.head@uws.edu.au
© 2003 Michael Head (text)
© 2003 Stuart Roth (cartoon)
[1] R v Hanson; R v Ettridge [2003] QCA 488.
[2] R v Ettridge and Hanson, District Court of Queensland, Wolfe CJ, 20 August 2003 <http://www.courts.qld.gov.au/qjudgrnent/sentencing/ettridge%20hanson.pdf.> .
[3] See, eg, Constitution s 44(ii) disqualifying from the Australian Parliament anyone who is under sentence for an offence punishable by more than one years imprisonment.
[4] Above n 1, 6.
[5] Ibid.
[6] Editorial Board, 'The Pauline Hanson Phenomenon', World Socialist Web Site, 25 April 1997 <http://www.wsws.org/news/1997/apr1997lhans-a25.shtml> .
[7] Ibid. For an inside account of the media promotion of Hanson, seeM Kingston, Off the Rails, The Pauline Hanson Trip (1999) ix-xix, 3-17.
[8] Commonwealth Electoral Act 1918 (Cth) s 123: the favouring of 'parliamentary parties' has been narrowed since to cover only federal parliamentary parties.
[9] Sharples v 0'Shea [1999] QSC 190 [45-76].
[10] Kingston, above n 7,xvii-xix, 1-17.
[11] Commonwealth, Parliamentary Debates, House of Representatives, 2 July 1998, 5971.
[12] Australian Broadcasting Corporation, 'More Evidence Upturned on Tony Abbott's Involvement in Hanson Conviction', PM, 26 August 2003 <http://www.abc.net.au/pm/content/2003/s932599.htm> .
Sharples was not able to make good that guarantee and was later bankrupted.
[13] P Kelly, 'Tony Abbott's Holey Crusade', The Australian, 30 August 2003 <http://www.theaustralian.news.com.au/commonlstory_page/0,5744,7102712%255E12250,00.html> .
[14] Commonwealth Electoral Act 1918 (Cth) Part:XX-Election Funding and Financial Disclosure.
[15] Sue v Hill [1999] HCA 30; (1999) 163 ALR 648.
[16] Electoral Act 1992 (Qld) s 180(2)(c).
[17] Sharples v O'Shea [1999] QSC 190 [132].
[18] Sharples v O'Shea [1999] QSC 190 [130].
[19] Sharples v O'Shea [1999] QSC 190 [129].
[20] See the discussion of R v Hanson; R v Ettridge, text at nn 32-43.
[21] Electoral Act 1992 (Qld) ss 153, 157.
[22] L Tenenbaum, 'Police Raids on Ultra-right Party set Dangerous Precedent', World Socialist Web Site, 7 February 2000 <http://www. wsws.orglarticles/2000/feb2000/hans-f07_pm.shtml> .
[23] Sharples v O'Shea [2000] QCA 23.
[24] L Tenenbaum, 'Conservative Parties Routed in another Australian Election', World Socialist Web Site, 23 February 2001 <http://www.wsws.org/articles/2001/feb200 l/qld-f23.shtml> .
[25] M. Head, 'The High Court and the Tampa Refugees' [2002] GriffLawRw 2; (2002) 11 Griffith Law Review 23.
[26] M. Head, 'Counter-terrorism Laws: a Threat to Political Freedom, Civil Liberties and Constitutional Rights' [2002] MelbULawRw 34; (2002) 26 Melbourne University Law Review 666.
[27] Senate Committee of Privileges, Execution of Search Warrants m Senators' Offices - Senator Harris, I 14th Report, August 2003, Parliament of Australia, 2003 <http://www.aph.gov.au/senate/committee/priv_ctte/report_114/report.pdf.> .
[28] A Wilson and A McGregor, 'Further Hanson Charge is Dropped', The Australian, 26 August 2003, 4.
[29] Ibid.
[30] Hanson v DPP [2003] QCA 409.
[31] Ibid [18] and [20].
[32] R v Hanson; R v Ettridge [2003] QCA 488, [14].
[33] Ibid [15].
[34] Taylor v Johnson [1983] HCA 5; (1982-1983) 151 CLR 422, 429; Code/fa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337, 352-353; Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216, 238.
[35] R v Hanson; R v Ettridge [2003] QCA 488, [50].
[36] Ibid [30].
[37] Ibid [34].
[38] Ibid [39].
[39] Ibid [40].
[40] Ibid [40, 41].
[41] Ibid [57, 59].
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