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AUSTRALIAN LABOR PARTY

NEW SOUTH WALES BRANCH
INTERNAL APPEALS TRIBUNAL

IN THE MATTER OF PROFESSOR THE HON BOB CARR

Tribunal: G. Ng (Chair), D. Tubier, R. Allen and K. Flanagan

Background

1. On 28 May 2018, pursuant to Rule A.33 of the Party Rules, Mr Mark Powell charged
Professor the Hon Bob Carr with:

(a) bringing the Party into disrepute

(b) action or conduct contrary to the principles and solidarity of the Party; and

(c) disruptive tactics.

2. Despite the seriousness of these matters, Mr Powell provided no particulars to his

charge. Nor did he advance any allegations of fact capable of supporting the charge.

3. On 30 May 2018, an article was published in the Sydney Morning Herald concerning
Mr Powell’s charge. In particular, it was reported that Mr Powell “said he had been
motivated to bring action against Professor Carr following Fairfax Media’s report that
Professor Carr enlisted fellow former Labor premier-turned-senator, Kristina Keneally
to use estimates hearings to ask pro-China questions.” Among the comments attributed
to Mr Powell in the article was the following: “[Former Labor senator] Sam [Dastyari]
paid the price and so should Bob – any party members who work for overseas interests
need to resign.”

4. This was the first articulation of the case against Professor Carr. That it occurred in
communications with the media and not in communications with the Tribunal was
unsatisfactory. All Party members should be aware that while matters before the
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Tribunal are often in the public interest, neither the Tribunal nor the parties before it
should be put in the position of first learning the case advanced by any one party in
media reports. As the Tribunal has repeatedly observed, the only appropriate forum for
contesting matters before the Tribunal is the Tribunal itself.

5. In any event, the suggestion that Professor Carr was a Party member “who [worked]
for overseas interests” was a serious allegation, and one that went significantly further
than press reports. It was on this basis that in a letter dated 4 June 2018, Mr Powell
was invited to provide a submission as to why his charge against Professor Carr should
not be dismissed pursuant to Rule J.8(c) of the Party Rules as being frivolous and
vexatious.

6. Mr Powell has since provided a submission in that regard. In that submission, Mr

Powell appeared to abandon his allegation that Professor Carr had engaged in disruptive
tactics or action or conduct contrary to the principles and solidarity of the Party. Mr
Powell’s submission was directed entirely to establishing that his allegation of bringing
the Party into disrepute was sufficiently arguable to merit determination otherwise than
on a summary basis.

“Frivolous and vexatious”

7. It is convenient at the outset to address Mr Powell’s contentions concerning the

meaning of the expression “frivolous and vexatious”. His submission was that:

(a) “a matter is only ‘frivolous’ if it lacks any serious purpose or value”; and

(b) “a matter is only ‘vexatious’ if it is brought to cause annoyance and frustration

rather than in good faith”.

8. Given the nature of the Tribunal’s jurisdiction, there is no reason to think that the
expression “frivolous and vexatious” does not bear the meaning often ascribed to it in
the conduct of litigation. In General Steel Industries Inc v Commissioner for Railways
(NSW) (1964) 112 CLR 113 at 129, Barwick CJ observed in relation to the summary
dismissal of proceedings that:

“[t]he test has been variously expressed; ‘so obviously untenable that it cannot
possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not
admit of argument’; ‘discloses a case which the Court is satisfied cannot
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succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest
that to allow them’ (the pleadings) ‘to stand would involve useless express’.”

9. Thus, whether a matter before the Tribunal is frivolous and vexatious does not depend
on the seriousness of the charge or the purpose for which the charge is brought. The
question is whether the charge is manifestly groundless. For the reasons that follow,
the Tribunal is satisfied that in so far Mr Powell’s charge is concerned, that question
should be answered in the affirmative.

Consideration of Mr Powell’s case

10. The essence of Mr Powell’s argument is as follows:

(a) it is sufficient to bring the Party into disrepute that the Party’s leaders have
engaged in conduct which, whilst not necessarily improper, suggests the
appearance of impropriety;

(b) Professor Carr is the director of the Australia-China Relations Institute;

(c) one of the donors to the Australia-China Relations Institute is a Mr Huang

Xiangmo who is reputed to be closely connected to the Chinese Communist
Party;

(d) in August 2016, a Mr John Garnaut was commissioned to conduct an inquiry

with ASIO into China’s clandestine activities in Australia, including the
activities of Mr Huang;

(e) Mr Garnaut and his inquiry have been of considerable interest to the Chinese
Ministry of State Security;

(f) Professor Carr has been reported by Fairfax Media as having asked Senator
Kristina Keneally “to use parliament to find out details of the employment, job
title, and contract of government adviser John Garnaut”,

(g) these matters have prompted widespread (negative) media coverage, which
might prompt a reasonable observer to conclude or suspect that Professor Carr:

(i) had used his political connections for the advantage of a donor to his
Institute;
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(ii) had engaged in unregistered lobbying of Ms Keneally on behalf of Mr

Huang; and

(iii) was improperly connected with an authoritarian foreign government.

11. A number of points may be made concerning Mr Powell’s argument. First, it must be
borne in mind that it is the Party that must be brought into disrepute. The circumstance
that an individual Party member may be the subject of adverse media reporting or
comment, which might prompt a suspicion in the mind of a reasonable observer that
the Party member might have engaged in some form of improper conduct, does not
necessarily result in any damage to the Party’s reputation. In that regard, it is significant
that Professor Carr is not presently a holder of elected public office; he is instead a
private citizen. That he was formerly a Labor Premier of NSW and Minister for Foreign
Affairs does not, of itself, mean that his post-retirement conduct can be attributed to, or
have an impact on the reputation of, the Party.

12. Mr Powell appeared to recognise that he had to go further than establishing some
individual possible impropriety on the part of Professor Carr; he had to show how the
broader Party was ensnared in that impropriety. This explains Mr Powell’s emphasis
on the fact that “a number of Mr Carr’s former Ministers are currently in prison for
corruption-related offences” and “the potential connection to an authoritarian foreign
government”. However, the fact that Professor Carr’s former ministerial colleagues
have been convicted of various offences is entirely irrelevant to the matters the subject
of Mr Powell’s charge. It has never been suggested that Professor Carr was involved
in the offences committed, and to point to those offences without establishing any link
to Professor Carr is unfairly prejudicial and verges on an abuse of the Tribunal’s
processes. As for “the potential connection to an authoritarian foreign government”,
Mr Powell has provided no evidence of any such connection or any other basis for
questioning Professor Carr’s loyalty to this country. In our view, that is so serious an
allegation that its mere utterance without support in even a scintilla of evidence should
not be tolerated.

13. Secondly, Mr Powell’s submission proceeds upon an unspoken assumption that there
is some form of analogy to be drawn between the test for bringing the Party into
disrepute and the test for a finding of apprehended bias in administrative law. So much
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is apparent in the emphasis he places on what a reasonable observer might apprehend

or suspect. However, the test for apprehended bias, with its focus on whether a fair-
minded lay observer might apprehend that a decision-maker might depart from the
process of impartial decision-making, was developed, and often expressed, by reference
to the standard of impartiality that is to be expected of judicial officers. This explains
the stringency of the test and the attention that it directs to possibilities.

14. In contrast, the charge in this matter is that Professor Carr has brought the Party into
disrepute, not that he might have brought the Party into disrepute. Finding that a
member has brought the Party into disrepute thus calls for a degree of evaluative
judgment, involving an assessment of the impugned conduct and whether it has
damaged the Party, as distinct from any one individual, in the eyes of the public. Mr
Powell has, in his submissions, done no more than speak of possibilities and engage in
speculation. The logical conclusion of his position is that any adverse media reporting
concerning a Labor Party member, which might support speculation concerning, but
does not constitute proof of, impropriety, is sufficient to subject that member to the
possible sanctions of expulsion or suspension. Given the robustness and often ad
hominem nature of political debate in this country, that proposition needs only to be
stated to be rejected.

15. Mr Powell’s cause is not assisted by Rule A.33(i), which provides that “bringing the
party into disrepute” may include members being investigated by a public authority for
improper conduct, where that investigation is bringing the Party into disrepute. The
circumstance that Rule A.33(i) was inserted into the Party Rules rather suggests that in
its absence, there would be doubt as to whether a mere investigation of a member’s
conduct might involve “bringing the Party into disrepute”. Moreover, it is necessary to
show that the investigation itself is bringing the Party into disrepute. There is
accordingly no scope for contending, as Mr Powell does, that whether the Party has
been brought into disrepute can be tested by reference to what a reasonable person
might conclude about what Professor Carr might have done. In any event, Mr Powell
does not say that Professor Carr is the subject of any investigation by a public authority.
Thus, his reliance on Rule A.33(i) is more distracting than illuminating.

16. Thirdly, when making a charge like the present one, it is necessary to state with
precision what the alleged impropriety is. The best that Mr Powell can do in this regard
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is to suggest the possibility that Professor Carr might have engaged in unregistered
lobbying.

17. The Federal Government’s Lobbying Code of Conduct defines the expression
“lobbying activities” to mean “communications with a Government representative in
an effort to influence Government decision-making, including the making or
amendment of legislation, the development or amendment of a Government policy or
program, the awarding of a Government contract or grant or the allocation of funding”.
It suffices simply to say that Senator Keneally is not a “Government representative”.
On the contrary, she is an Opposition Senator. Let it be assumed then that Professor
Carr did request that Senator Keneally ask various questions concerning Mr Garnaut.
On no view could that constitute “lobbying activities” within the meaning of the
Lobbying Code of Conduct. There was thus no obligation on Professor Carr to make
an application to the Secretary of the Department of Prime Minister and Cabinet to be
included in the Register of Lobbyists.

18. In light of that, one must ask why it was improper for Senator Keneally to ask questions
concerning Mr Garnaut and why it was improper for Professor Carr to suggest that she
ask those questions. There is, after all, no evidence that Professor Carr acted on the
instructions, or at the request of, Mr Huang. Nor is there any evidence before the
Tribunal that makes good the allegation of some connection between Mr Huang and
the Chinese Communist Party. In essence, Mr Powell is inviting this Tribunal to impose
some penalty on Professor Carr on the basis of an indirect association with an individual
about whose political connections adverse comment has been made in sections of the
media. Not only does that not suffice to prove the bringing of the Party into disrepute;
it is redolent of a time when being within six degrees of separation of persons associated
with a reviled ideology was sufficient to rob one of one’s reputation and livelihood. It
suffices to say that that time does not warrant revival.

19. For the reasons outlined above, then, the Tribunal dismisses Mr Powell’s charge
pursuant to Rule J.8(c) of the Party Rules.