The Andrews government cannot identify any legislation it needed to override, but experts say that is the point.When Daniel Andrews signed a declaration for a state of disaster in Victoria at 1.43pm on Sunday, it was a part of a final salvo in a battle to control a resurgent and invisible enemy.
Stuart Robert and political donations
In this story
Political scandals about ministerial impropriety are common things. More than once a year on average, some minister or other gets caught doing the wrong thing and is either sacked or resigns.
In the overwhelming majority of cases, the damage of the revelations is limited largely to the individual concerned. On rare occasions, though, a ministerial scandal points to something much bigger, to something rotten in a whole political party, even in the whole political system.
The scandal that has ensnared the Turnbull government’s Human Services and Veterans’ Affairs Minister Stuart Robert – an entirely undistinguished minister but a major Liberal Party fundraiser – is just such a case.
In a nutshell, the allegations against Robert are these: he is a close friend of a businessman with a colourful past, one Paul Marks. Robert and members of his family hold shares in some of Marks’s companies. When Marks was trying to stitch up a deal between one of his companies, Nimrod Resources, and the Chinese state-run mining operation Minmetals, Robert went to China to help him. Robert claimed he was going in a private capacity, but once he was in China he met with senior Chinese officials and gave the impression he was representing the Australian government, thereby assisting his mate to close the deal.
But there is more to it than that. Two-and-a-half million dollars more – the amount Paul Marks and his businesses have donated to the Liberal Party, according to figures compiled by the opposition from electoral commission and Australian Securities and Investments Commission documents. Before Robert allegedly helped him out in China, Marks had given $1,681,341. Afterwards, he gave a further $940,000.
It is this money that distinguishes this scandal from your average case of ministerial impropriety. This is the factor that elevates it beyond the individual to the organisational and systemic level.
It is the clearest case we’ve seen for many a year and goes to the pernicious influence of money on politics. Labor’s shadow attorney-general, Mark Dreyfus, QC, summed up the bigger question quite succinctly in a doorstop interview in Canberra on Wednesday morning, where he pressed for Robert’s immediate dismissal. At time of press, the minister was holding on.
“If Mr Turnbull doesn’t show some leadership and sack Mr Robert today,” Dreyfus said, “then all Australians will know that a government that Mr Turnbull is leading is the kind of government where $2 million from a wealthy donor to the Liberal Party will buy you the services of a minister in the Australian government.”
It was a reasonable point about the apparent influence of money on the Liberal Party in the current case, but also a bit tough on Prime Minister Malcolm Turnbull, who has handled the scandal absolutely by the book. As soon as the details of the affair became known, he referred the matter for investigation by the head of his department, Martin Parkinson.
“Due process,” pleaded Turnbull, a defence Dreyfus the lawyer would appreciate, even if politics demanded he argue otherwise.
Turnbull received the Parkinson report on Thursday and later dismissed Robert.
Turnbull has no culpability in the matter. It’s just another mess he has inherited from the previous Liberal leadership team of Tony Abbott and his chief of staff, Peta Credlin.
This takes the story back 18 months, to August 2014, when Paul Marks enlisted the help of Stuart Robert. At that time, Turnbull was minister for communications and Robert was assistant minister for defence.
Robert took personal leave – approved by the Prime Minister’s Office – from August 15 to 22, inclusive, for his China trip. But official records also show he claimed more than $10,000 in entitlements for his attendance, in an official capacity, at a defence ministers’ dialogue held in Singapore between August 21 and 23.
The overlap in dates and purposes only muddies the waters. Which parts of Robert’s Asian trip were undertaken in his official capacity, and which were in his private capacity? What did his visa application say about the purpose of the trip? Who footed which bills for flights, accommodation, meals and other expenses? Robert? Marks? The taxpayer?
Despite Dreyfus’s forensic questioning in parliament this week, no answers have been forthcoming.
Nonetheless, the available information from other sources was enough to persuade Dreyfus that Robert had breached the ministerial code of conduct in at least two ways. He enumerated the prohibition on using “public office for private purposes” and that which states ministers must not act “as a consultant or adviser to any company, business, or other interests, whether paid or unpaid, or provide assistance to any such body, except as may be appropriate in their official capacity as minister”.
While Dreyfus has been unerring in his shots at Robert and the Liberal Party, his bullets have mostly been supplied by others, particularly Melbourne’s Herald Sun newspaper, which has been gunning for Robert and his mate Marks for a year.
Last March, the paper’s investigative work turned up fascinating details about the colourful past of Marks – his business dealings, court appearances, the claim that a hotel he formerly owned had been a centre of prostitution, even the revelation that he had been suspended for three months in 2011 from the prestigious Huntingdale golf course in Melbourne for cheating. And, of course, his spectacular generosity to the Liberal Party.
It reported that Marks “was brought into the fold by Stuart Robert, the Queensland-based assistant defence minister and the party’s most prolific and aggressive fundraiser”. The reports also showed that Robert had bought shares in two of Marks’s companies.
But of most immediate political interest, it recorded that Robert had introduced his close friend to Tony Abbott and that Abbott had paid obeisance to Marks by attending his lavish 65th birthday party at the Huntingdale Golf Club.
This was a minor scandal at the time, for the paper showed Abbott had taken a taxpayer-funded VIP jet to get there. It was the Herald Sun that precipitated events again this week when it revealed the first details of what it called Robert’s “secret” trip to China.
With all due credit to the paper for its investigative work, though, its characterisation of the trip as secret seems increasingly questionable.
We now know of correspondence – at least two letters, one of which went to Abbott’s office – that alerted the government to his planned trip, even though they do not specify details of his plans.
As one senior government source told The Saturday Paper, the odd thing is that Abbott’s excessively controlling office apparently made no further inquiries.
“So,” says the source, “Robert is booked in for this trip and then he’s given permission by Abbott/Credlin to do this side trip.
“Did they know, given the importance of Paul Marks as a donor, what Robert was doing? And if so, was that the basis on which they gave approval?”
We’re certainly not suggesting any answer to that question, but both sides of politics are alive to its implications – as was evident in an exchange on Thursday between a journalist and Opposition Leader Bill Shorten.
It was put to Shorten that “some in the government are suggesting that if the then prime minister approved this trip, that absolves Stuart Robert of any breach of the ministerial code because it is up to the prime minister of the day to enforce it. What are your thoughts?”
Replied Shorten: “A crocodile wouldn’t swallow that. I think Malcolm Turnbull is keen to throw Tony Abbott under the bus for a second time and blame him for the Stuart Robert scandal.”
It was an answer intended to inflame factional tensions within the government, which are already pretty high. There is a widespread belief among Liberals that someone in the party is feeding the media. Every day since the scandal broke at the start of the week, more stories and pictures have appeared, emphasising the links between Robert, Abbott, Marks and various of his business associates.
The conspiracy theories differ about who is behind it, and there is no way of telling who’s right. The salient point is that it is deepening divisions between the Abbott and Turnbull camps.
Beyond that, it highlights the broader issue of ministerial propriety.
Malcolm Turnbull came to the prime ministership promising a cleaner, less confrontational type of politics that would restore public trust. He emphasised standards of ministerial propriety, which was laudable, but hardly original, as John Wanna, professor of politics at the ANU, points out.
He cites the example of John Howard, who came to office in 1996 promising to lift standards of accountability.
“There was a cabinet handbook including a code of conduct that went back at least to the Hawke years. It might even have been formulated in the later Fraser years,” Wanna says.
“But Howard toughened it up considerably in his ministerial code of conduct in 1996.”
As a result, minsters and others fell like flies. In just three days in September 1997, Howard had to sack three ministers and his chief of staff over what became known as the travel rorts affair.
“Two years later, in 1998, he softened it,” says Wanna. “About nine ministers fell in that period – some quite good ones, and for relatively trivial offences.”
But as time went by, Howard stopped enforcing even the weakened code.
A couple of years ago an analysis by journalist Alan Austin detailed all the sackings and resignations due to impropriety for every federal government since that of Gough Whitlam.
The Howard government emerged as by far the most scandal-plagued of that 40-year period, even when account was taken of the length of tenure of the government. It lost an average of about 1.2 ministers a year. The Fraser government came a distant second.
Austin’s conclusion was that conservative governments were more prone to ministerial impropriety, but perhaps the more important lesson to draw from the analysis is that the enforcement of standards is highly variable, according to the political climate of the moment.
They are more likely to be enforced early in the term of a new leader and more likely to be enforced against expendable junior ministers, for example. They are less likely to be enforced against factional allies and party powerbrokers.
The evidence of any significant difference between the parties when it comes to ministerial standards is very weak. But there is a difference when it comes to the corrupting influence of political donations, and a very strong correlation between ideology and money. The conservative parties and their big money donors are the major enemies of limits, accountability and transparency.
In 1996, when Howard came to power, one of the first actions of the government was to make it harder to track the flow of money into party coffers. Under the previous Labor government, the threshold at which a political donation had to be made public via the Australian Electoral Commission was $1500.
The Howard government increased it to $10,000. Furthermore, they indexed it. Currently it is $13,000. Worse, the lax rules mean that a donor can contribute up to that amount in each division, federal and state.
The conservatives have also pioneered various means of circumventing disclosure, setting up associated entities to collect money, and by moving it between various party divisions to exploit differences in rules between states.
That is not to say Labor is squeaky clean, either, but the record clearly shows that when it comes to dubious means of collecting funds, the Coalition tends to be the initiator and Labor the imitator.
But better disclosure would be at best a partial solution. Paul Marks has spoken proudly about his massive support for the Liberal Party.
The fact that a big donation is made public does not mean it does not afford influence.
There is really only one answer, and the High Court, no less, provided it in a landmark case last year.
The case arose out of an investigation by the New South Wales Independent Commission Against Corruption into political donations made to the state Liberal Party. Electoral laws in NSW put tight limits on the amount that anyone can donate and banned certain interests including property developers from donating at all.
A property developer and former Newcastle lord mayor, Jeff McCloy, objected to the laws and challenged them on the basis that by stopping him from making donations they curtailed his freedom of political expression and were unconstitutional.
The seven justices were unanimous in finding it was constitutional to place limits on donations to political parties. And by a 6-1 margin they accepted it was legitimate to discriminate between certain interests – property developers – and the general citizenry.
McCloy’s case came down, in essence, to an assertion that if you want to have your voice heard, to have influence, you have to make political donations.
Or, as Justice Stephen Gageler scathingly put it: “What the plaintiffs say is that, by restricting political donations (the payment of money or the provision of other benefits), the provisions restrict political communication by removing a means of facilitating donors making political representations to candidates and parties.
“The plaintiffs’ principal argument, in effect, is that [the relevant section of NSW electoral laws] restrict political communication by removing the preferential access to candidates and political parties which would otherwise come to those who have the capacity and incentive to make large political donations. The argument is as perceptive as it is brazen. It goes to the heart of the mischief to which the provisions are directed.”
Gageler went on to note that while buying preferential access to government did not necessarily result in corruption, “the line between a payment which increases access to an elected official and a payment which influences the official conduct of an elected official is not always easy to discern”.
The implication of his words is obvious: the bigger the donation the bigger the risk of corruption.
The elimination of preferential access to government that resulted from the making of political donations was not just “a legitimate legislative objective,” said Gageler.
“More than that, the elimination of that form of influence on government is properly characterised as a compelling legislative objective.”
In other words, let’s set limits on donations, so moneyed interests can no longer buy politicians. Because this is not about Stuart Robert; it is about the whole system.
This article was first published in the print edition of The Saturday Paper on Feb 13, 2016 as "Lost propriety".
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