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Did Julia Gillard really lie during the 2010 election campaign about introducing a carbon tax?  Tom Orren says "aye hae ma doots!"

BACK IN 1984, I was in a car pool of five.

Five is the perfect number for a car pool because it fills the car and everyone gets to drive one day a week. But our car pool was perfect for another reason, the cast of characters it contained — young, old, wise, upstart, radical and conservative. I know that’s six, but that’s just the way it was. Anyway, between us, we covered all the bases, so nobody ever fully agreed with anyone else and that set the scene for some pretty bizarre discussions, which turned what could have been a boring half hour commute into a ongoing debate, where no topic was ever too complex or too straightforward to tackle.

It was all great fun.

Then Azaria Chamberlain went missing and our little car pool was split right down the middle as debates over her mother’s guilt became increasingly polarised. The words, “Hang the lying bitch,” still haunt me whenever a controversial new case is being heard. For four of the people in that carpool, the Chamberlain verdict was black or white — she was either a guilty lying bitch, or a grieving mother who deserved our utmost compassion.

But it wasn’t just our car pool that became polarised, it was the entire nation, as the public was swamped by wave after wave of, often contradictory, fact and rumour. “How can they be so certain?” I wondered, “and in two such opposite ways?” In a car full of blacks and whites, I was labeled a coward for remaining an insipid shade of gray, however subsequent events have lent some credence to my stance and these days I regard it more as a sign of wisdom than weakness.

THE SO-CALLED LIE

Similar polarisation has resurfaced recently about our Prime Minister, as she has been accused of being an untrustworthy, ‘lying bitch’.

We’ve all heard the statement that started it, probably a hundred times by now, “There will be no carbon tax under the government I lead!” We also know that because of it, Alan Jones branded her ‘Ju-Liar”, and how that sobriquet has taken root as report after media report repeats the mantra. In many ways, this issue has become even more divisive than the Chamberlain case but the reason for this is somewhat unclear. For one thing Julia Gillard doesn’t suffer from that cool aloofness that did so much damage to Lindy’s image – what we now know was post-traumatic stress ‒ Julia has a much warmer personality. But is she really a ‘lying bitch’ after all?

As the Scots would say, “Aye hae ma doots!” (You’ve just got to love the Scots) and ‘ma doots’ led me in search of some background to that infamous ‘No Carbon Tax’ clip.

It was made on the 16th August 2010 and while I had no trouble finding dozens of sites willing to replay it, to my surprise, all reference to the actual question she was asked seemed to have disappeared, which made me a little more ‘dootful’. There was just something about that question that kept bugging me so I went back to the context in which it was asked.

Here is the actual question and its response in full:



It was in the lead up to the 2010 election when climate change skepticism was running high and, as part of the campaign against carbon pricing, the Opposition had claimed that it was ‘just another big, new tax’ — tax being a word that was sure to send a collective shiver up the spine of any focus group.

FRAMING

Making the ALP’s policy look like ‘just another tax’ is an example of ‘framing’ and it turned out to be a very shrewd tactic, because it changed the way the media discussed the entire issue. Framing is a technique used in public relations to make anything appear either better or worse than it actually is.

For example, say you knew someone named ‘Jill’ who slept around. If you didn’t like ‘Jill’ you could frame her as a slut but if you wanted to make her more appealing you’d frame her as a sexually liberated feminist. Framing uses the power of suggestion, and by planting a certain suggestion in the public’s mind you can influence the way they think about an issue — so getting in early is really important.

The aim of most public relations is to frame one’s clients in a positive way. In politics however, a lot of effort also goes into framing the opposition in a negative way, which is why the LNP got in early and suggested that a carbon price was ‘just another new tax’ — something the ALP was keen to deny.

So, on August 16th, when Julia Gillard was asked whether her scheme would be’ just another new ‘tax’ she knew she had to distance herself from any suggestion to the effect. Thus her now infamous claim. But was it a lie?

WHAT IS A LIE?

Back in the 4th century, St Augustine said some interesting things about lies, many of which have passed down into our laws. For instance, he said that lies told by someone who believes them to be true are NOT lies, and this could provide Ms. Gillard with at least a little wiggle room.

With this in mind, the question becomes not so much: “did she lie?” but, instead, one of: “did she lie intentionally?”

WHAT THE LAW SAYS

In law, lying goes by many different names, including fraud, perjury, misleading, deception and misrepresentation, each of which can have several sub-varieties. There, the lying usually involves a contact, including any claims made prior to the contract being formed. Therefore, it might be worthwhile to examine how contract law deals with ‘lying’ because, let’s face it, elections are a little like contracts and, if so, election campaigns would be the political equivalent of the ‘pre-contractual stage’. The term most commonly used to describe lying during this stage is ‘misrepresentation’ — a term which may have great relevance for our PM.

‘Misrepresentation’ comes in several different forms, ranging from intentional and deceptive, to unintentional and innocent. It can also be known as ‘defective negotiation’ or ‘inducing misrepresentation’ and the law makes important distinctions about what constitutes a lie in each case. But most importantly, it makes it very clear that ‘promises’ made prior to a contract should never be relied on because they can be neither true nor false, as nobody can predict the future. So, in the eyes of the law, a promise by itself can never be misleading and relying on one is seen as particularly unwise. It is far wiser to rely only on statements of fact.

Even if a promise was intended to deceive, it would be particularly difficult to prove it in court. It would require proving either; that the promisor had no intention of carrying it out, or that they were incapable of carrying it out and then (also) that they knew it at the time the promise was made. And, since proving all three of these would be next to impossible, Gillard appears to be on pretty safe ground, legally speaking.



Moreover, to be actionable under the law, a ‘misrepresentation’ has to be about a ‘statement of fact’ — not a promise, an opinion and definitely not puff (a boast made for advertising purposes). In this case, it is most unlikely that any court would regard Ms. Gillard’s statement as a ‘statement of fact’. It was more in the realm of an opinion, a promise or even puff. But even if it were shown to be a statement of fact – even one that was intended to mislead – to warrant a breach of contract it would also have to be proven that it actually induced people to vote for her.

Now, not only would this be extremely difficult to prove, but it is also unlikely to have been the case. Being made just five days before the 2010 election, most people’s minds were already made up on the issue of carbon pricing. In fact they were particularly divided over it. Therefore, it is unlikely that many (or even any) people changed their vote because of what she said. About the only gauge we have to judge this are opinion polls taken shortly before and after it was made and, if anything, these show just the opposite — that the ALP actually lost ground in the week before the election.

But a misrepresentation need not be intentional to be actionable. ‘Conscious ignorance’ (that is promising something when you know you have no idea whether you can fulfill it) or ‘reckless disregard for the truth’ (not even caring whether you can fulfill it) are both big no-no’s. And so is ‘nondisclosure of important information’ in the form of facts, especially if they misrepresent the fundamental character or quality of the product being promoted. We’ve already noted that Ms Gillard’s statement was more along the lines of an opinion than a statement of fact, but the matter of her altering the public’s perception about the fundamental character of the product she was promoting – a carbon abatement policy – is worth looking into.

ELECTION PROMISES



Mind you, this whole discussion about contracts and elections might be a tad premature. Even though elections are a ‘kind of’ contract, it’s also clear that they’re not your normal business contract. Fulfilling election promises can depend on prevailing conditions and what was possible before an election may not always be possible after it. Of course, electorates deserve honesty and elected parties should carry out their promises, but it is possible to argue that, to some extent, all electors are aware that some promises (from either side) are liable to be broken due to unforeseen circumstances.

As it turned out, Julia Gillard was not able to introduce the carbon abatement scheme she preferred and, to some people, this means she must have lied about a carbon ‘tax’ ‒ plain and simple ‒ but there are questions surrounding this. For one thing, the carbon pricing system for which she has been criticised is a temporary measure, forced upon her by the Greens ‒ the quickest way to get the ball rolling so to speak – with the system she promised to be introduced after three years. But there may be an even more compelling reason to believe that she did not lie.

IS A FIXED CARBON PRICE A TAX?

When is a tax not a tax?

A tax is generally defined as a ‘compulsory contribution to support a government’, and we are all familiar with the way our GST and Income taxes are used to provide us with everything from hospitals to roads. But payments for burning carbon are very different. They are more in the realm of a penalty, a levy or a fine for carbon pollution — like a fee paid to dump rubbish at the tip. Therefore, they are NOT taxes in the normal sense of the word.

What’s more, the proceeds they deliver are not required to support government spending, they are be used to compensate citizens for expected price rises and to invest in clean energy technology. So the phrase ‘Carbon Tax’ could be a complete misnomer and any question of Gillard’s integrity based on it ill-founded.

UNFORESEEN CIRCUMSTANCES



And while we’re talking about election promises — one thing we will never know is how the promises made by the LNP would have stacked up under a hung parliament however. At least some of them would have proved difficult to implement — like, for instance, their generous stay-at-home parent benefit of up to $150,000 p.a. for six months after the birth of a child. On the other hand, the LNP did go to the election before last promising a carbon pricing scheme, only to renege on it on the night Tony Abbot ousted Malcolm Turnbull. So, they also have some questions to answer about lying.

Unforeseen circumstances can sometimes prevent election promises from being fulfilled. Imagine, for example, if a party were elected on the promise of building a new hospital and, immediately after the election, a natural disaster struck — it would be a bit much, of course, to penalize them for not fulfilling that promise immediately. So, in Julia Gillard’s case, does our hung parliament equate to an unforeseen circumstance? I think it does, because ‘that’ promise was frustrated by the hung parliament. But the key point to remember in this regard is that it was a parliament chosen by the people so, to some extent, we got the government and the carbon pricing scheme we wanted.

FALSE STATEMENTS AND LIES

But the best answers don’t always require us to delve into law, religion or philosophy. Often they come from asking deceptively simple questions, and this case is no exception.

One such question is:

“Is it possible to make a false statement without being a liar?”


The answer to that is:

“Yes, of course!”

All of us have said things we believed to be true which, later, turned out to be wrong but this does not mean we should all be branded as liars, untrustworthy or unsuitable for holding public office? If that were the case, few of us would ever qualify.

On the other hand, if our society is determined to hold everyone to strict account, I’d love to be in the front row when Cardinal Pell gets hauled over the coals for continually insisting there’s a God!

DELIVERING ON A PROMISE

Another simple, but very important question in this case is:

“Was there any real difference between what Julia Gillard promised and what she actually delivered?”

The answer to that is:

“No.”

Prior to the 2010 poll, it was crystal clear that the ALP intended to introduce a carbon-pricing scheme. To put it in another context, it wasn’t as if Ms. Gillard promised us a hospital and then failed to deliver it. It was more like she promised us a state-of-the-art, 1,000 bed hospital and then said:

“Due to unforeseen circumstances I cannot provide you with the hospital I promised but I will deliver a 800 bed facility with the rest to come in three years.”

More importantly, there is no real difference between what she promised and what she actually delivered — a carbon abatement scheme. Whether that scheme sets the price of carbon by fining those who exceed acceptable limits, by taxing carbon pollution, or by allowing a market to operate, makes very little difference to the strategic outcome. The principle at stake is whether Ms Gillard’s promise to introduce a carbon abatement scheme was fulfilled — not her ‘promise’ about one of the operational details about pricing carbon.

CONCLUSION

To some people this issue will remain black or white. Just as, all those years ago, my car pool companions had fixed ideas about Lindy Chamberlain, one side will see Julia Gillard as a bald-faced liar who deceived a nation for political gain, while the other will see her as a person who made an honest mistake when answering a question about the mechanism used to price carbon.

But this whole saga may point to a far more disturbing trend in politics, the use of framing – the power of suggestion – to influence public perception, especially by some media sources. And this is where that question that Ms Gillard was answering back in 2010 becomes so important. Not so much because of the question itself, but because of one word used in it. The word ‘tax’. Because ‘that word’ was in ‘that question’, Ms. Gillard was forced to use it in her answer and, in doing so, ‘tax’ was indelibly forged into the debate, even though in reality, it had very little to do with the issue. By introducing ‘that word’ into the debate the Opposition has been given full license to call Ms Gillard a liar, thus discrediting both her and her policy of carbon abatement in one fell swoop. It’s no wonder politicians are forced to answer questions in such circumlocutory ways!

As a result, Julia Gillard’s ‘untrustworthiness’ seems to have taken on a life of its own, with a veracity that appears to increase with each mention, in a feedback loop of which Jimi Hendrix would be proud. The media’s involvement in this loop is critical because the framing of people or issues requires more than just a clever PR team. It requires at least inadvertent support by the media and this is far more likely to occur when the media acts like a squawking parrot – willing to repeat whatever it hears – rather than as a wise old owl who weighs up both sides of a story and reports a balanced view.

A great deal of the misunderstanding that beleaguered Lindy Chamberlain (and our entire legal system) back in the 80s stemmed from media mistreatment of her issue — some of it by journalists who forsook the truth in favour of a story. In that case, the cost was a distraught family. Today, the same kind of media mistreatment may be costing Australia (and perhaps the world) the path to a new, low-carbon future.

Is Julia really Juliar?

Aye hae ma doots!



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