Pauline Hanson, Political Prisoner

Australia is in election mode. So, with the Romanian courts having screwed over Cǎlin Georgescu and Diana Iovanovici-Șoșoacă, and with the French courts having screwed over Marine le Pen, it is worth recalling that Australian politics has been no stranger to such legally powered sleaze.

Pauline Hanson has been in politics for thirty years, and for thirty years she has been an idiot and an embarrassment. Hanson is currently the second most obnoxious member of Federal Parliament and there are no signs that we’ll be free of her any time soon. Twenty years ago, however, Hanson and her One Nation colleague David Ettridge were thrown in jail following a questionable civil case and a subsequent criminal case. It should not be forgotten how absurd and how nasty this all was.

Tony Abbott has the lack of morals and the rat cunning of a Richard Nixon (made all the more repellant by his self-righteous Catholicism). So it was Abbott, of course, who in 1998 arranged for Liberal thugs to contribute to a secret slush fund for the financing of legal actions against Hanson and One Nation. It was then with Abbott’s promises of financial support, which Abbott later lied about, that a former One Nation candidate brought a civil action against Hanson, initiating the legal circus.

In 1997, Hanson and Ettridge registered an incarnation of One Nation with the Queensland Electoral Commission. In 1998, Terry Sharples, who had been disendorsed by One Nation, objected to the validity of this registration. The registration was subsequently confirmed to be valid by Queensland Electoral Commissioner, Des O’Shea. Sharples then applied for and was granted judicial review of O’Shea’s decision by Queensland Supreme Court Justice, Roslyn Atkinson. In 1999, Atkinson set aside One Nation’s registration, ruling that the registration had been “induced by fraud or misrepresentation”; in, 2000, Hanson and Ettridge’s appeal of Atkinson’s decision was unanimously dismissed by the Queensland Court of Appeal.

With the overruling of One Nation’s registration on account of “fraud”, the stage was set for criminal prosecutions: O’Shea referred the matter to the Queensland Police, who handballed it to Leanne Clare, the Director of Public Prosecutions. It was too late to prosecute Hanson and Ettridge for making false statements to the QEC, so Clare reached for the criminal code. In August, 2003 a jury found Hanson and Ettridge guilty of fraud, including Hanson’s fraudulent attainment of about $500,000 in electoral funds. Chief Justice Patsy Wolfe, noting that the crimes “affect the confidence of people in the electoral process”, sentenced Hanson and Ettridge to three years jail, with no recommendation for parole. Hanson and Ettridge immediately appealed but bail was repeatedly refused, including by a High Court justice. They remained in jail until November 2023 2003, when the Queensland Court of Appeal unanimously overturned the jury decision and, finally, the legal circus came to an end.

These proceedings were a confusing mix of the civil and administrative and criminal, but the factual question at the heart of it all was pretty simple. In order to register as a political party in Queensland, One Nation had to lodge the names of five hundred Queensland electors who were members of the party.¹ Hanson provided a list of about a thousand names and the question was then whether the people named were members of One Nation, or were only members of a secondary body, the Pauline Hanson Support Movement. Atkinson ruled the latter to be the case, and we were off and running.

To be clear, Hanson and Ettridge were cavalier about their administrative obligations. There were reasonable if technical arguments that One Nation may not have supplied five hundred member names to the QEC, and indeed that there were not five hundred members whose names could be supplied. Hanson and Ettridge were then somewhat contemptuous of, or were perhaps poorly represented at, some of the subsequent legal proceedings. Nonetheless, it was all absurd, and obviously so.

The purpose of going after Hanson and One Nation was exactly because of their populist appeal, and the political threat that this was perceived to be. As such, any implication that Hanson and Ettridge, if they had put their or better minds to it, could not have arranged for One Nation to have five hundred members properly lodged was simply ludicrous. Indeed, at the very beginning Commissioner O’Shea had confirmed that many of those whose names were submitted to the QEC believed that they were paid-up members of One Nation. So, what was this really about? Largely, that an inconvenient political party screwed up their paperwork enough to provide the opening for the party be deregistered and for the leaders be thrown in jail.

There are always judgment calls in criminal and legal decision-making, there is alway some discretion that can be applied. This discretion is open to abuse, of course, and there are plenty of strong arguments that the right kind of defendants tend to get it easier, for various values of “right”. Nonetheless, discretion in the application of the law is necessary and good, permitting thoughtful perspective and sensible nuance and empathy that cannot possibly be captured by a regimented application of a criminal code. In particular, one wants to be very hesitant about applying the law to deregister or jail political opponents or political outcasts. Such hesitancy was not greatly in evidence during the Hanson and Ettridge proceedings.

There were many public expressions of such doubts,² including before the appeal decision was announced, and the appeal justices alluded to these doubts, more and less obliquely. Chief Justice Paul de Jersey noted the Court had strived to deliver an early judgment, and then remarked,

[39] It should be understood that [the quick appeal judgement] will not mean the process has to this point been unlawful. While the appellants’ experience will in that event have been insupportably painful, they will have endured the consequence of adjudication through due process in accordance with what is compendiously termed the rule of law.

This is a little cheap. It was neither the place nor the Chief Justice’s role to comment on the broader context of the Hanson-Ettridge proceedings, but there can be plenty wrong with a process without it being unlawful. De Jersey also notes that in his view the case,

[41] … illustrates the need for a properly resourced, highly talented, top level team of prosecutors within or available to the Office of the Director of Public Prosecutions

De Jersey does not explain how such a team may have altered the course of the legal proceedings, and it would appear to be more wishful thinking than anything else.³

Justice Margaret McMurdo was more explicit, and significantly grumpier:

[51] … It is common knowledge that convictions and sentences are subject to a lawful appeal process. … The appellants’ conviction and sentence attracted a deal of media attention and public interest. Senior members of the legislature, many of whom were trained lawyers, were reported in the media as making inappropriate comments about this case.

McMurdo then quotes comments, from John Howard and Bronwyn Bishop and others, in which they express their concerns regarding the proceedings and the length of Hanson’s and Ettridge’s prison sentences. McMurdo is not amused:

[57] … If these observations were accurately reported, they are concerning. They demonstrate, at the least, a lack of understanding of the Rule of Law, the principle that every person and organisation is subject to the same laws and punishment and not to the arbitrary wishes of individuals or the passing whim of the day. Such statement from legislators 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.

McMurdo has a point, of course. Even if it is not so plausible that the comments were intended to influence the appeal justices, having political big shots commenting on live legal proceedings in such a critical manner is legally and ethically dubious. Nonetheless, McMurdo’s “Rule of Law” sanctimony is a little hard to swallow. McMurdo closes,

[59] 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.

This is remarkably obtuse. One can argue whether and how the previous justices might have done better. Yes or no, the Hanson-Ettridge proceedings undermined confidence in the judiciary and other institutions, and this undermining was little if it all due to immoderate or ill-timed comments in the media.

Atkinson might have ruled with a more nuanced sense of the messiness of political contracts, but she did not. Clare might have left it as a civil and administrative matter, but she did not. O’Shea might have noted that the $500,000 that Hanson fraudulently “obtained” had gone to election costs as planned, and thus he might have forgone holding Hanson and Ettridge personally responsibly to repay the money, but he did not. Wolfe might have considered harder what is more likely to “affect confidence in the electoral system”, and might have imposed a non custodial sentence or a shorter sentence with a recommendation for parole, but she did not. Lots of people at lots of stages might have done something more respectful of social and political norms, but they did not. Everyone, including the AEC, might have thought a little harder about the role and propriety of a rival politician and his legal slush fund, but most did not. In this context, de Jersey’s and, especially, McMurdo’s pontificating about respect for the Rule of Law is pretty rich.

The prosecution and jailing of Hanson and Ettridge was a shameful episode in Australian social and political and legal history. With illiberal forces, from all directions, now gaining strength, this episode should not be forgotten.

 

1. Alternatively, possibly, One Nation had to currently have a member in an Australian parliament, which it can be strongly argued that they had. See Michael Head’s article on the One Nation trials.

^{2. Michael Head’s article provides a very good survey of the concerns. There is also a less sympathetic, and thus somewhat annoying, but well-written article by Geraldine Mackenzie.} 

3. Reflecting on this remark, Mackenzie notes the Queensland’s Crime and Misconduct Commission’s Inquiry into the Hanson-Ettridge prosecutions. The Inquiry was tepid, more concerned with the narrower issues of due process (there was) and political interference (there wasn’t), but at one point the Commission makes contact with the broader world, remarking upon the failure of the Director of Public Prosecutions to obtain external advice:

The Commission is of the view that, because the case was likely to generate public and political controversy, it might have been prudent to obtain outside written advice, or at least to produce a written internal advice prepared by an officer under the control of the DPP. That would have provided some additional protection both for the accused and the ODDP.

In response to such suggestions, Clare somewhat arrogantly suggested that such external advice would have likely made no difference to the decision to proceed with the prosecutions.