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The tragedy of Ashby and Slipper: Act Five

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The cast of Ashbygate make their final appearances, along with a surprising new guest star, as Vince O’Grady concludes his epic account of Australia's Watergate.

AshbySlippercartoonAct5

[Read Act One] | [Read Act Two] | [Read Act Three] | [Read Act Four]

JAMES ASHBY'S original complaint was filed with the Federal Court in Sydney on 20 April 2012.

Much of Act Four of this tragedy was played out whilst Peter Slipper was overseas. To him, it must have appeared that everything was normal, as the texts between him and his office personnel were concerned with the day-to-day goings on of the office.

The reality is that James Ashby was discussing Peter Slipper with a wide range of people, including his friends: Liberal National Party MP Mark McArdle; Mal Brough, who used to be a cabinet minister in the Howard Federal Government; as well as the mysterious Party heavyweight "Jackie" — amongst many others.

The McArdles

Mark and Judy McArdle
Judy and Mark McArdle

Mark McArdle was one of the people with whom Ashby was particularly friendly. So friendly, in fact, that they would text intimately and meet for coffee on a regular basis.

Mark McArdle's wife, Judy, once worked in Peter Slipper's office — but was allegedly unpopular there and not trusted by the other staffers. It was an unhappy tenure. She is said to have nursed a grudge against Slipper since that time. Judy apparently advised Ashby against taking a job with Slipper, but he took it anyway, even resigning from the LNP.

Despite this, Ashby continued to have an extremely cordial relationship with McArdle and his wife. Indeed, McArdle texted him a short time after he had accepted the job and wished him a happy Christmas.

And, after his first week in Canberra, Ashby solicited a meeting with McArdle — hardly the action of someone who is persona non grata with the Liberal National Party.

He asks for and is given a meeting with a sitting member of the Queensland Parliament — at extremely short notice. They are, without doubt, close.

It appears that Ashby discusses his action against Slipper with McArdle at the beginning of February.

As the tragedy progresses, Ashby seems to move from McArdle on to Brough.

But, wait a minute — that doesn’t make any sense at all.

We know that McArdle is a solicitor and, at least according to his biography, a pretty good one. He was shadow Attorney-General before the Newman Government came to power. He also has credentials as a mediator.

Why, then, would Ashby discuss his sexual harassment claims with McArdle and not receive the competent professional advice that he did from David Russell QC? Russell and McArdle are bound to know each other — for two reasons: they are both senior members of the LNP and, also, they are lawyers.

And having received professional advice from McArdle, why did Ashby ask Brough for legal advice about sexual harassment? It also doesn’t make sense, because Brough – unlike McArdle – has no legal training.

There is only one logical explanation — that Ashby went to Brough for political reasons.

Mal Brough

Ashby colluded with Brough to copy private information from Peter Slipper's 2009 diary. There can be no other explanation for this action than a desire by Mal Brough to bring Peter Slipper into disrepute by passing this information to News Limited journalist Steve Lewis.

Brough passed on the copies of the diary to Lewis — and almost certainly also put Ashby in touch with Lewis. (Don’t forget, this in light of the LNP Code of Ethics, which I mention below.)

These actions have nothing whatsoever to do with any sexual harassment charges. They do, however, advantage Brough in his attempt to discredit Slipper and further his own election chances in the seat of Fisher.

And Brough also used his influence with Bruce McIver, the president of the LNP in Queensland, to attempt to get Ashby's accomplice and fellow Slipper staffer Karen Doane a job.

Justice Rares made the following judgement on Brough [IA emphasis]:

138. I am also satisfied that Mr Ashby and Ms Doane by about 29 March 2012 were in a combination with Mr Brough to cause Mr Slipper as much political and public damage as they could inflict on him. They believed and hoped that Mr Lewis would publish unfavourable stories about Mr Slipper concerning whatever they could help Mr Lewis find in relation to Mr Slipper’s use of his travel entitlements in the areas of Mr Lewis’ curiosity. That is why each of Mr Ashby, Ms Doane and Mr Brough were anxious to provide Mr Lewis with the diary entries he sought. It is not clear whether Mr Brough had passed on to Mr Lewis Mr Ashby’s foreshadowed complaint of sexual harassment in late March 2012. They also believed that Mr Lewis, and the media generally, would report on any legal proceeding against Mr Slipper in which Mr Ashby alleged sexual harassment. At this time, Mr Ashby and Ms Doane saw Mr Brough as their means of obtaining favour from the LNP in seeking new employment. It was obvious that once what Mr Ashby was then planning became public, he and Ms Doane could no longer work as members of Mr Slipper’s personal staff. The relationship of trust and confidence (if it still subsisted) between Mr Slipper and the two staff members would have been destroyed by their acts of calculated disloyalty.

Brough also used his influence with David Russell QC to get Ashby legal advice for $1 — although there is also a text about Jacki(e), obtaining him a barrister for $1. Apparently, at the Russell meeting, he had already made up his mind to use Harmers Workplace Lawyers, and within the week had actually met with them.

Russell is a Liberal National Party “heavy hitter”. His Liberal National Party affiliations are spelled out in his resume, which was entered into evidence, along with his affidavit, on the Federal Court website on 8 October 2012.

It’s incredible that the resume is included in evidence for a trial about sexual harassment. I spent some time trying to work out the relevance of attaching his resume. As far as I am aware, the signed affidavit is evidence of what actually happened in the case. Was it in there to appeal to Rares' sense of collegiate loyalty as a fellow legal practitioner? Or could it have been a veiled threat? Who knows?

As part of the affidavit, David Russell has also included the LNP Code of Ethics.

Again I wondered “what for?” What have they to do with the allegations against Slipper? But I thought I would read them anyway.

They are fascinating.

Here are some highlights:

CodeOfEthics

So, we now have a benchmark of the responsibilities of the LNP, which include:

  • to strive to remain beyond reproach in their moral conduct;

  • to not misuse confidential information;

  • (particularly for those in positions of leadership) to seek ethical solutions to problems without regard to their personal interests;

  • to not, without proper cause, injure the personal professional reputation of another member; and

  • to use discretion in keeping Party matters within the party.

The Code of Ethics then goes onto say...

CodeOfEthics2

David Russell QC

It is not my job to draw any conclusions about the members involved in this tragedy and their adherence to the Liberal National party code of Ethics. But there is plenty of evidence of Brough, for example, trying to damage Slipper’s personal and professional reputation. Whether he would be found guilty of that charge, under the self-imposed LNP Code of Ethics, is a moot point. Given the scathing judgement of Justice Rares, in which he said Brough acted in combination with Ashby and Doane to damage Slipper and advance his own career and that of the LNP, public opinion might find he hasn’t measured up to that code.

Also attached to the affidavit is a speech given by David Russell, entitled, “How the North was won”.

This speech was given at the Sydney Institute on 12 June 2012.

Hold on a minute. The complaint was lodged on 20 April 2012. When I looked at the calendar last, the month of June came three months after the month of April, and the complaint was about matters between January and March 2012.

So I ask again: “What has this speech got to do with the matters before the court?”

The answer must be: "Absolutely nothing."

It’s a good speech though — if you are a died in the wool Tory.

This leads us onto what happened with the others involved in the saga.

Firstly, there is Peta Simpson.

Now Peta is mentioned in the play as a friend of Ashby’s. She is an employment consultant in the Sunshine Coast.

Whilst researching this story and detailing this tragedy, I found it increasingly interesting as to the number of Liberal party members from all over Australia who turned up in Queensland. Senator Michaelia Cash was prominent from Western Australia, and in his role as shadow employment minister, Eric Abetz is mentioned in the text messages of Ashby.

Text1Abetz

However, in late April (and after the complaint had been lodged with the Federal court), Abetz turned up in a video spruiking for Peta Simpson:

What did Eric know and when did he know it. He certainly has been one of the Liberal attack dogs on this issue, as well as on the Thomson matter.

Eric is never one to shirk an issue. He was intimately involved in the Godwin Grech / Utegate affair, and when that debacle – which arguably cost Malcolm Turnbull the leadership of the Liberal Party – was all put to rest, he dusted himself off and sprang back up like a jack in the box to persecute Craig Thomson. He also has sprung up in this case, making outrageous claims against Nicola Roxon and her remarks about this case.

He said to Paul Sheehan of the Fairfax press, in an article in the Sydney Morning Herald on 18 October 2012:

"The government was willing to spent three quarters of a million dollars of taxpayers’ money to cover this up. I’ve never seen the first law officer of the land behave in such a partisan way. She has a lot to answer for and a lot to explain." 

Now, Eric is a lawyer, and he would well know that when people make accusations against you they are entitled to defend themselves.

The alleged behaviour by Peter Slipper happened when the Liberal Government was ruling the treasury benches; of course, Abetz fails to mention this fact.

The original application says this.

 

Knowledge of the First Respondent - the Commonwealth

5. In or around mid 2003, the First Respondent became aware that the Second Respondent had formed a relationship of a sexual nature with a younger male member of staff employed in the office of the Second Respondent.

6. The First Respondent obtained this knowledge via its employee, Mr Tony Nutt, a Senior Adviser to the then Prime Minister, John Howard. Mr Nutt was so informed by Megan Hobson, a former member of the Second Respondent's staff who had viewed a video in which Mr Slipper was observed to:

(a) enter the bedroom of a junior male staff member via the window;

(b) lie on a bed with the junior male staff member in shorts and t-shirt and hug the junior male staff member in an intimate fashion;

(c) urinate out of the window of the room.

7. Mr Nutt, having been informed of (a) and (b) above by Megan Hobson, directed Megan Hobson to "....forget all about if

8. The Commonwealth thereafter failed to take reasonable and effective steps to prevent the Second Respondent from utilising his office to foster sexual relationships with young male staff members.

9. In or around May Budget Week 2003 the junior male staff member referred to at 6(a) above had complained to Megan Hobson to the effect "I have been abused by Peter [Slipper]. We had drinks after an electorate event on Australia Day [2003]. Peter made advances on me and I said "no"". The junior male staff member showed Megan Hobson scabs on his knuckles where he said he had recently hit a brick wall whilst defending himself against an attack by Peter Slipper during a parliamentary trip to Adelaide. Megan Hobson recommended that the junior male staff member lodge a complaint through the appropriate channels. After viewing the video referred to at 6 above, Megan Hobson formed the view that the relationship was consensual.

The Commonwealth Government (the first respondent) in 2003 was led by Prime Minister John Howard. Eric Abetz was Special Minister of State from 30 January 2001 to 27 January 2006. His parliamentary secretary at the time of the incident apparently alleged by Megan Hobson (although tellingly, she refused to sign the affidavit) was Peter Slipper:

Ministers

[Source: Liberal party Federal Council handbook 2002.]

So, Eric Abetz worked with Peter Slipper. Once again we must ask: what did he know?

Tony Nutt worked directly for the prime minister John Howard at that time, as did Ashby's friend Tania Hubbard. Judy McArdle was also a Slipper staffer at the time of the supposed incident.

The information about this incident must have been passed onto Ashby by a Liberal Party insider. Only people in the Liberal Party would have known where the skeleton was allegedly buried.

Where is the evidence that this incident even happened? Where is the video? Why did Megan Hobson refuse to swear the incident occurred under oath?

According to Justice Rares, in summarising the facts of the 2003 incident in his judgement:

112. There was no evidence that Ms Hobson ever swore or affirmed any version of an affidavit that supported the 2003 allegations in the originating application. There was no evidence of a signed copy of the statutory declaration previously made by Ms Hobson. Mr Ashby was ordered on 18 May 2012 to provide to the Commonwealth or Mr Slipper the sworn or affirmed evidence referred to in the originating application. No affidavit or signed copy of a statutory declaration supporting the 2003 allegations was tendered at the hearing.

Rares was certain why these allegations were included — to harm Slipper in the public eye and damage him politically:

153. In my opinion, for the reasons below, the 2003 allegations and the assertion about reporting the Cabcharge allegations to the police had no legitimate forensic purpose. They were not included in the originating application to advance any bona fide cause of action that Mr Ashby may have had against either the Commonwealth or Mr Slipper. The effect of their inclusion and, I find, the purpose that Mr Ashby and Mr Harmer had in including them in the originating application was to further damage Mr Slipper in the public eye and politically and to attract to him significant adverse publicity in the media. That was an aim of Mr Ashby’s from the time he had seen Mr McArdle on 2 February 2012, as he discussed with Ms Hubbard on 4 February 2012 when they referred to empowering others.

*****

Now it is interesting as to Ashby’s choice of lawyers.

Michael Harmer

As with other heavyweights, we find that Kathy Jackson, the so-called whistleblower in the HSU debacle, also had free legal help from the same lawyers Ashby chose — Harmer’s Workplace Lawyers (est. 1996). Michael Harmer is the principal of that firm.

It seems that Michael Harmer has his own financial, legal and ethical issues, as reported in the Sydney Morning Herald of 29 June 2012:

Ashby lawyer ordered to pay tax office $750,000 says deductions had been legitimate.

The high-profile lawyer representing the staffer suing Peter Slipper and who ran the sexual harassment claims for publicist Kristy Fraser-Kirk against retailer David Jones and Christina Rich against PriceWaterhouseCoopers has been ordered to pay the tax office almost $750,000.

Michael Harmer, the chairman of Harmers Workplace Lawyers, allegedly did not pay enough income tax in 1998 and between 2000 and 2002.

The legal tactics

It will be useful to explain to the reader how an MP can be ineligible to sit as a member of Parliament.

For instance, a person is excluded if he or she:

IneligibleMP

Suppose for a moment that Peter Slipper were to be found guilty of fraud, as was alleged in the original allegation in the federal court, it would fall under the first point above. A convicted person under those circumstances above would not be able to sit. (Misuse of cab charge dockets).

One wonders also at the tactics of the lawyers who lodged the complaint with the Federal Court, without first following the usual procedures of these types of cases. I refer once again to the study ‘Formal Complaints of Workplace Sexual Harassment Lodged with Australian Human Rights and Equal Opportunity Commissions 1 July 2009 – 31 December 2009', which said that in 132 cases studied:

‘The lowest amount of compensation received was $364 and the largest was $114,128, with an average amount of $13,596.31 per complainant and a median compensation figure of $7,000. Some gender differences were noted regarding the amount of compensation received, with only female complainants receiving payments greater than $50,000.’

According to reports, this case has cost the Federal Government $730,000:

It’s understood that the Commonwealth has already spent $730,000 on the case and the costs are mounting, while Mr Ashby’s lawyer, Michael Harmer, was funding the case himself. It is thought his costs could be even higher than the Commonwealth’s.

Imagine how much it would, therefore, be costing Peter Slipper. Is it conceivable that the second part of the strategy would be to Bankrupt Peter Slipper to make him ineligible to sit in Parliament. I personally doubt it but have heard the argument put. I note that Ashby and Harmers are looking for leave to appeal Justice Rares interlocutory judgement, so this strategy seems to be still in play.

FINDING "JACKIE"

And who is the mysterious "Jackie" who, according to the texts, seems to have arranged the funding of Ashby's impossibly extensive legal expenses. We have been hunting for this person for months. In summary, we are not sure who it is, however we find it interesting that last year, just prior to the Slipper defection, Tony Abbott has drawn Jackie Kelly back into the fold. That's John Howard's favourite Jackie Kelly who lost her western Sydney seat in 2007 over the fake Islamic pamphlet scandal (yet another case of dodgy docs from the Libs).

Could this be "Jackie"?

From the Sydney Morning Herald (28 August 2011):

THE Opposition Leader, Tony Abbott, has been courting a phalanx of ex-Howard government ministers and MPs to stand for preselection in a number of marginal NSW and Queensland Labor seats.

As the Coalition continues to pressure the Gillard government over the carbon and mining taxes and turns up the heat on the Labor MP Craig Thomson, Mr Abbott has in recent weeks met or spoken with the high-profile former Liberal MPs Jackie Kelly, Ross Cameron, Mal Brough and the conservative editor of The Spectator Australia Tom Switzer, in an attempt to give depth and breadth to a Coalition assault on Labor's heartland.

The Coalition has identified, in particular, seats along the Central Coast - including Dobell - home to Mr Thomson - and western Sydney as electorates for the taking, with Liberal tacticians confident they can replicate the success of the Premier, Barry O'Farrell, and the NSW Liberals in the state election bloodbath.

Jackie Kelly is known to be very close to both Brough and Abbott. She also has an intimate connection to the Fisher electorate. Her parents live in Caloundra; she got married at Buderim and she also apparently owns a holiday house in the electorate. She knows the area and the locals well. It would be interesting to know if she spent time in Fisher in the early part of this year.

Jackie Kelly may not be the Party big-shot referred to by Doane and Ashby, but she looks like a pretty good candidate for the role.

*****

There is also another element to the last affidavit of Michael Harmer that is very interesting and, I think, completely wrong.

In the original application to the Federal Court is made against two Parties following...

James Hunter Ashby

Applicant

The Commonwealth of Australia

First Respondent

Peter Slipper

Second Respondent

But in Harmer's last affidavit, he refers to the Second respondent as "Speaker" and not as Peter Slipper. As far as I am aware, you can't bring a case against a position, rather than a person.

The last part of the affidavit contains newspaper articles. One from the Daily Telegraph about where Peter Slipper is and how much it is costing taxpayers.

Once again, I ask: what that has to do with a sexual harassment case?

In conclusion, and to wrap up this epic tragedy, one must ask the Question: “Where has the whole thing got us to?”

The answer is a staggering: "Almost nowhere at all."

Justice Brian Rares
Justice Brian Rares

There are 1,704 pages of evidence, injunctions and subpoenas on the Federal Court website —posted because of the public interest in this matter. The first item was lodged on 20 April 2012 and the last to date is 9 October 2012. The case has been before the court for 5 and a bit months. The Commonwealth have settled with Ashby, without admitting liability. Ashby’s action against Slipper was struck out by Justice Rares on 12 December, in a landmark judgment.

If anything the parties to the events told us far too much about themselves, allowing us to see what their real ambitions were. The fact that Ashby first discussed the sexual harassment case with a lawyer, Mark McArdle — and then says he went to a non-lawyer in Brough for legal advice just doesn’t cut it for me.

An oft-quoted saying is that “when there is a choice between a conspiracy and a cock up, go for the cock up every time”. This is the case that, in effect, proves the rule. This is the case of a conspiracy —in which the Liberals cocked up.

There are certainly more and more questions to ask about who knew what.

This affair has included senior State and Federal politicians from the Liberal party and the LNP in Queensland — at the very highest levels. State presidents, present and former ministers, as well as a host of their staffers.

When it all boils down to it. Ashby and Slipper have both got really bad, but private, text personas. They both use foul language and, because of language used by Slipper before Ashby agreed to become an employee of Slipper’s, the then Speaker was forced to resign.

However, Ashby has used the same sort of text language to Slipper (in the same private exchanges) and so it follows that he should be disbarred from a political career with the LNP as well. After all, what is good for the goose is good for the gander.

And, as the language over which Slipper had to resign for was used outside the actual dates specified in the complaint — the evidence seems calculated to cause maximum reputational and political damage. without bearing any actual relevance to the case.

The real losers in this saga are the taxpayers of Australia. Apart from the $730,000 spent by the Government on legal fees, the settlement between the Commonwealth and Ashby was $50,000.

We have seen a whole lot of exaggeration by many of the Liberal party commentators on the issues. Notably Eric Abetz and George Brandis.

It is my belief that this whole thing is a conspiracy dreamed up by people who are too lazy to develop policies, but want to cheat their way into power. And while the relentless media focus has been on slander and smear, it has taken the public debate away from the issues which truly affect us all.

One thing is certain — the people involved haven’t told us all they know, but in the fullness of time the truth will come out. Not because anyone confesses their role — but because it will be used as political payback, perhaps the alleged "2003 incident" was saved up against Peter Slipper.

This dirty episode has smeared all of the people involved, cheapened the court processes and left a bad taste in all our mouths.

The amount of energy, time and effort devoted to this relatively minor matter (in the annals of crime and politics in Australia) is beyond belief.

Is it the last part of the longest dummy spit in Australian political history? I doubt it. Next year is election year — I suspect there'll be plenty more Liberal beat-ups and smears to come.

(In a post-script to this series, Vince will be back soon with 'Ashbygate: Questions to Answer'.)

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