The wheels of justice move slowly when it comes to Ashbygate

What is going on with the Australian Federal Police's request to the Federal Court to get access to James Ashby's phone records? Ashbygate author and Sydney bureau chief Ross Jones reports.

By now, you will probably have read or heard the mainstream media (MSM) hype regarding the AFP’s request to the Federal Court for legitimate access to Ashby’s phone records.

On Thursday 11 May, Justice Geoffrey Flick refused immediate access, saying it wasn’t that simple and he’d need up to three weeks to think about it. Apparently, there are legal niceties regarding the use of civil evidence in a criminal matter.

So what is going on here? Why does the AFP suddenly need the logs submitted to the court? Surely, you would think, the logs are both incontrovertible and in the public domain?

When writing Ashbygate: the plot to destroy Australia’s Speaker, I checked with the Federal Court to make sure it was okay to publish the complete text logs. I was told: sure, no worries, good luck with the book. So they are definitely in the public domain.

Harmers submitted the logs of Ashby’s handset to the Court as fact and backed them up with a detailed forensic analysis by a very respected firm (whose name is now buried beyond immediate reach deep in my files). So if the logs are not incontrovertible someone should be in trouble.

But there has always been a hint the logs published on are not complete.

Fedcourt published a very user friendly searchable PDF of the text logs and it is from this document the MSM retrieved its gore.

But bits are missing. There is no record, for example, of any text between text #12087 sent to Slipper on 24 November 2011 at 7.42am and text #12095 received from Inge Slipper at 8.55pm. That’s eight texts unaccounted for on the day Peter Slipper resigned from the Liberal Party. 

Additionally there are no photos and no annexures.

Apart from this PDF, a little further down in the files is a second text log, this one hard copy only and not searchable. It throws light on the early period of Ashby’s relationship to Brough and goes on to reveal more of the mechanics of the plot. It went unreported.

It is not at all hard to imagine that, a bit like an archaeological dig, there are other layers yet to be seen by the public or media. If there are, it is probable these layers reside only in the Federal Court.

The AFP’s barrister, Andrew Berger, told Justice Flick the text logs were no longer “located on the handset”. No surprise there.

Berger did not mention trying to retrieve the data from Harmers or the forensic firm, but if they did they came up blank. No surprise there, either. Not long after the Justice Rares’ found in December 2012 that Brough and Ashby had colluded to abuse the court, Labor MP Graham Perrett wrote to the AFP pointing out the risk of evidence being destroyed if any investigation was delayed.

The question du jour is whether the AFP looking to merely work its way around legal formalities, or is after it something else — data hitherto unseen, perhaps? Something it needs the Court’s approval to get at?

Flick said he’ll make a decision within three weeks. That will be about four weeks before the election. Even if Flick gives the green light – and there is no certainty he will – the AFP’s interpretation of the word "plod" means it’s a dead certainty there will be no revelations before the election.

Nevertheless, the AFP seem to have staked a lot by pursuing this investigation, so they either have their teeth into something tasty, or are they merely conducting a PR exercise to placate their many critics and stall the matter to death.

Take your pick, but at least Brough was forced to surrender his glittering prize and small mercies are something.

Bigger mercies may be found in the next layer.

As for Flick? We can only hope he gives appropriate weight to the fact this was an attempt to subvert Australia’s democracy via an abuse of the Federal Court. His court.

Ross Jones is the author of 'Ashbygate: The Plot to Destroy Australia's Speaker'. Find out more about the 'Ashbygate' book HERE.

You can follow Ross on Twitter @RPZJones.

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