Here is a repost of Andrew Bolt's brilliant put-down of 774's morning presenter, Jon Faine. Faine made a classic jerk of himself today. Clearly, he was not fully across the subject of Prime Minister Gillard's involvement as a partnered solicitor in the AWU fiasco. As such, he should not have opened his mouth. What happens to his radio career as a result is entirely of his own doing. I certainly will be watching with keen interest. Faine has form for being obnoxious, not only to guests he disagrees with but also to callers.
The ABC has been dragged kicking and screaming to the point where they are right now, having to recognise there is a story which is actually in the public interest - not some non-event as they have portrayed this scandal for many months.
The 7.30 Report's Leigh Sales is to interview Nick Styant-Browne, one of the ex Slater & Gordon partners, tonight, Thursday, 22nd November, 2012. I wonder if Leigh will try and shout him down?
I will have more to say on this in another post.
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ABC presenter makes hash of defending Gillard
Andrew Bolt
NOVEMBER
22
2012
(11:45am)
Melbourne ABC host Jon Faine was vehement today in defence
of the Prime Minister, yet has not based his faith on facts. Let’s check his
editorial:
…it’s to do with the slush fund that she was helping to
establish for people who were acting as a group within the AWU at the time.
Fudge. Well, less than a group, Jon. It essentially operated
just for Bruce Wilson and, to some extent, for his bagman, Ralph Blewett. And
it was set up for their benefit as individuals, not AWU officials.
Well, at that stage, I do remember laughing out loud on air
and saying since when should a client not act for someone because they might be
breaking the law?
Red herring. No one to my knowledge has ever suggested
Gillard should not have taken as a client someone who “might be breaking the
law”.
Then Julia Gillard was criticised for not dobbing in her
clients when it became apparent that they might have broken the law. Well, since when does a lawyer dob in their
own clients to the police when someone is making a complaint about them? It’s
alleged that she should herself have gone to the police, which is preposterous
and would’ve been an unethical act, if not a breach of duty to her client and a
breach of confidentiality.
Gross oversimplication. Misleading. Porbably false. Gillard
actually had two clients here - her boyfriend, Wilson., and the AWU itself,
which was her firm’s primary client. When she found out Wilson’s slush fund had
fraudently taken funds ostensibly paid to what donors believed was the AWU for
workplace safety for its members, she had a duty to at the very least notify
the AWU. She did not. She arguably
could have also notifed police of the frauds when told about them without
breaching anything told her her in confidence by Wilson, since they were
brought to her attention not by Wilson himself but others. On this point, here
is the opinion of former High Court judge Michael Kirby:
Question from audience: Look, there are plenty of people in
the legal profession that seem to have moral compass deficit disorder. If a
lawyer naively helps a friend to set up a slush fund, and then subsequently
finds that the friend has used it to misappropriate half a million dollars, is
there a legal or moral obligation for the lawyer to report that to the police,
the knowledge of that matter?
Kirby: It sounds as though it’s getting a little bit close
to a real live problem and I know it could be presented as hypothetical, but I
sort of have got very, very strong antennae and I can sniff out a real live
problem pretty well. (Audience laughter). And I’ve gone out of the business of
giving legal advice, but generally speaking, in our sort of society, if a
person is aware of a serious crime and doesn’t report it to the police, that is
what we call misprision of a felony; if there is a felony, you have to report
it, it is a citizen’s duty. Now that law might have been modified in Victoria
and other states, you’d have to look that up, but that’s the way the law
generally operates.”
Here is High Court justice William Deane in Baker v
Campbell, 1983:
Deane: Moreover, if the (doctrine of legal professional)
privilege were confined to disclosure in judicial (or quasi-judicial) proceedings,
it is difficult to explain why, logically, the lawyer who fails voluntarily to
disclose the wrongdoing of his client to the appropriate administrative officer
does not, in the absence of some particular justification, stand guilty of the
offence of misprision of felony.
Doug Meagher QC has discussed this at length:
Meagher: Bankes LJ at page 526 when considering an
allegation that the accountant had breached an implied term of confidentiality,
said:
“ ... There may no doubt be cases to which the rule laid
down by the learned judge may be applied, as for instance confidential
communications to a professional adviser as to the proposed commission of a
crime, or as to the proposed commission of a civil wrong upon an
individual. A contract to keep such a
communication secret may well be considered an illegal contract, and the duty
to the public to disclose the criminal or illegal intention may properly be
held to override the private duty to respect and protect the client’s
confidence.”..
Wood VC put it in vivid phrase: ‘There is no confidence as
to the disclosure of iniquity.’
In Weld-Blundell v Stephens Bankes LJ rather suggested that
the exception was limited to the proposed or contemplated commission of as
crime or civil wrong; but I should have thought that was too limited. The exception should extend to crimes frauds
and misdeeds, both those actually committed as well as those in contemplation,
provided always - and this is essential - that the disclosure is justified in
the public interest. The reason is
because no private obligations can dispense with that universal one which lies
on every member of the society to discover every design which may be formed, contrary
to the laws of the society, to destroy the public welfare…
The disclosure must, I should think, be to one who has a
proper interest to receive the information.
Thus it would be proper to disclose a crime to the police…
The existence of the exception to the privilege was firmly
established in Australia following the obiter dictum in Varawa v Howard Smith
& Co (1910) 10 CLR 382. At page 385 Griffith CJ said:
“The rule was laid down very distinctly by Lord Halsbury LC
in Bullivant v The Attorney General for Victoria:
‘I think the broad propositions may be very simply
stated: for the perfect administration
of justice, and for the protection of confidence which exists between a
solicitor and his client, it has been established as a principle of public
policy that those confidential communications shall not be subject to
production. But to that, of course,
this limitation has been put, and justly put, that no Court can be called upon
to protect communications which are in themselves parts of a criminal or
unlawful proceeding.’
The rule is very well illustrated in the case of R. v Cox
& Railton in which the communication stated and put in evidence was a
communication made by a solicitor to his client for the purpose of enabling him
to carry out an unlawful enterprise.”
This says nothing about the duty to report; but once the
privilege is removed, the shield vanishes and the ordinary duty cast on all
citizens to report a threatened crime applies to the lawyer as well.
Moreover, Gillard, in explaining why she did not contact
authorities about the frauds did not cite client confidentiality as an excuse.
The reason she gave was that inquiries were already under way when she found
out. There is reason to doubt the factual basis for this claim.
It’s alleged that at one stage she was party to a fraud,
which has been met with stern letters from Julia Gillard’s lawyers, and you
might notice a prominent apology published in The Age today, saying whoops, we
might have gone too far.
False. Straw man. There was no such apology and no such
admission by The Age. The item referred to is here. Check for yourself. Faine
also oversimplifies in referring to allegations that Gillard “was party to a
fraud” and then claiming this was false. In fact, the allegation has
consistently been that Gillard created a slush fund used by her boyfriend to
commit fraud, and that she insists she had no idea those frauds were intended
or committed.
Then it was alleged that there were files that are missing
and those files it seems now are turning up in the registrars of the Federal
Court and elsewhere. Then it was alleged that files were missing at Slater and
Gordon and it was pointed out that files get destroyed after seven or eight or
so years because it’s actually just impossible to keep them all and on and on
and on the allegations go.
Misleading. In fact, four files were alleged to have gone
missing - two in the Federal Court, one in Slater & Gordon and one in the
WA Corporate Affairs Commission. Only one of the files, in the Federal Court,
has since been located. Slater & Gordon is unable to confirm what Faine
implies - that it’s own missing file was destroyed as a matter of routine after
seven or eight years. Indeed, it claims not to be sure the file even existed,
although Gillard is recorded being questioned about it in a taped record of
interview with her partners in 1995.
Today as you’ve already heard on AM, one of the key
witnesses in inverted commas to all of this has arrived back in Australia. His
name is Ralph Blewitt...
Smear. Blewitt is indeed a key witness, without inverted
commas. Correspondence demonstrates he was one of the two people for whom
Gillard helped to create the slush fund, and placed the notification of it in
the press. Gillard also claims to have witnessed his donation of power of
attorney to Wilson to buy a house in his name.
However, on arrival [Blewett has] already said that he knows
nothing about events in Victoria, but he may be able to shed some insight into
what was alleged to have gone on eighteen years ago in Western Australia. Of
course Victoria Police don’t investigate things that happen in West Australia.
The West Australia Police do, but that’s for Mr Blewitt, his lawyers and the
Victoria Police to sort out between them.
Red herring. Misleading. The complaint Victoria Police are
investigating relates to the power of attorney Gillard says she witnessed as a
solicitor in Victoria, donated by Blewitt in favor of her boyfriend, Wilson.
Blewitt alleges Gillard was not present when he made it out in Perth, and the
document was backdated. Blewett claims it was misused by Wilson to purchase a
property in Victoria in his name, using stolen funds. Blewett is also expected
to discuss renovations to Julia Gillard’s Abbottsford house. All this is well
within the scope of Victoria Police to investigate. Blewett’s reference to not
knowing about events in Victoria refers to the creation and operation of a
second slush fund created in Victoria by Wilson. Faine should know all this.
How could Faine be so sure Gillard has no questions to
answer if he himself does not understand what’s been alleged or demonstrated?
It seems to me that Faine instinctively wants to clear
Gillard without even knowing what the case against her is.
(Note: Gillard says she did not know of Wilson’s frauds and
did not benefit from them. She did not know the house was brought with stolen
funds. She says paid for all her own renovations.)
UPDATE
Michael Smith rang Faine for a right of reply, but was not
given one.
