![\"Mal](\"https:\/\/i0.wp.com\/nofibs.com.au\/wp-content\/uploads\/2015\/09\/fisher.jpg?resize=600%2C300\")
\nThe Ashby Affair is like a zombie, one of the undead. You can\u2019t kill it with an axe. It just keeps on walking, slowly and inexorably, towards those who were involved in this sorry saga.<\/p>\n
\nThe Ashby Affair is like a zombie, one of the undead. You can\u2019t kill it with an axe. It just keeps on walking, slowly and inexorably, towards those who were involved in this sorry saga.<\/p>\n
While Mal Brough remains in Parliament the issue of his role in the tawdry affair will not go away.<\/p>\n
Brough\u2019s elevation to the Special Minister of State by new Prime Minister, Malcolm Turnbull, presumably for leadership spill services rendered, has reinstated the Ashby affair as an issue of concern, as it should. Not even Tony Abbott was prepared to appoint Mal Brough to any Cabinet position whilst question marks hung over the Ashby affair like the sword of Damocles.<\/p>\n
It is ironic that among Brough\u2019s new and probably most important duties, is the responsibility for those agencies which manage the integrity matters of a working Parliament; agencies such as, The Australian Electoral Office, the Ombudsman and the National Auditors, among others.<\/p>\n
The key issue at the heart of the Rare\u2019s decision in Ashby v Slipper is the abuse of the administration of justice. It was an application from Slipper\u2019s lawyers that the case in which Ashby alleged sexual harassment by Slipper, be dismissed. By the time Rares\u2019 brought down his decision to dismiss the case there was a mountain of evidence, raising serious doubts as to Ashby\u2019s veracity and implicating others in the Ashby v Slipper saga.<\/p>\n
One of those key others to benefit from Slipper\u2019s political demise was Mal Brough, aka by his Ashby affair codename of Jacky. Many in the Opposition believed at the time that with a hung Parliament, getting rid of the then Speaker of the House, Slipper would bring down the Gillard Government, which was sufficient motivation for the apparent cloak and dagger operations as outlined in so many of the emails and text messages submitted in evidence. It did not bring down the Government as it happens, but Brough went on to win Slipper\u2019s old seat in the 2013 Federal election, and Tony Abbott become PM.<\/p>\n
The Rares\u2019 decision was over-turned by a split decision of the Full Bench of the Federal Court essentially on a technical issue of uncontested evidence. All evidence given by Ashby and Harmer went unchallenged by an unrepresented Slipper and was therefore, in the view of two of the three judges, a failure by Rares J.<\/p>\n
In the concluding paragraphs of their majority judgement Mansfield J. and Gilmour J. said as follows:<\/p>\n
\u201cWe are satisfied that the evidence before the primary judge [Rares} did not warrant the adverse finding said to constitute an abuse of the Court\u2019s process on the two bases found and did not warrant the rejection by His Honour of the sworn and unchallenged evidence of each of Ashby and Harmer.\u201d Ashby Appeal decision Mansfield J and Gilmour J (par.225)<\/p>\n
This was in response to those paragraphs in the Rares judgment, which included the following:<\/p>\n
\u201cHaving read all of the text messages\u2026as well as the other evidence, I have reached the firm conclusion that Mr Ashby\u2019s predominant purpose for bringing these proceedings was to pursue a political attack against Mr Slipper and not to vindicate any legal claim he may have for which the right to bring proceedings exist. \u2026As Mr Ashby and Ms Doane agreed in their texts of 30 March 2012 what they were doing \u2018will tip the govt to Mal\u2019s [Brough] and the LNP\u2019s advantage\u201d: [66] Rares decision para.196<\/p>\n
\u201c\u2026Mr Ashby acted in combination with Ms Doane and Mr Brough when commencing the proceedings in order to advance the interests of the LNP and Mr Brough. Mr Ashby and Ms Doane set out to use the proceedings as part of their means to enhance or promote their prospects of advancement or preferment by the LNP, including by using Mr Brough to assist them in doing so. And the evidence also established that the proceedings were an abuse of the process of the Court for the reasons I have given\u2026\u201d Rares J [par. 199]<\/blockquote>\n
Siopis J, in his minority decision, did what judges are supposed to do, and weighed the abundant evidence before coming to a decision that the appeal be dismissed. He believed the evidence substantiated Rares\u2019 J judgment that the process had been abused and therefore tainted.<\/p>\n
There is an irony to this story. If Rares J had let the original case proper, Ashby v Slipper, continue until the very end, then the claims of not having \u2018my day in court\u2019 and uncontested evidence may have resulted in a totally different outcome.<\/p>\n
Throughout the appeal the one dominate plea pushed by Ashby and his legal and PR representatives, was that he did not have his full \u2018day in court\u2019 on the sexual harassment matter. Of course, within a few months after the appeal decision dismissing the Rares\u2019 judgment was published, Ashby withdrew the allegations of sexual harassment giving Slipper\u2019s mental state as his primary reason. The Ashby v Slipper matter was no more. Ultimately there was no \u2018day in court\u2019. After all, the strategy had been successful. Slipper was a man broken beyond repair; Brough was to become the new MP, and the LNP the newly elected Government.<\/p>\n
And what about the abuse of the justice system? It had taken yet another body blow.<\/p>\n
Brough\u2019s admission on 60 Minutes in an interview with Liz Hayes that he\u2019d asked Ashby for Slipper\u2019s diary entries was a matter that should\u2019ve resulted in an immediate AFP inquiry. It was an extraordinary admission, which underscored concerns about the abuse of the administration of justice in this matter.<\/p>\n
An abuse of the justice process sounds as boring as watching paint dry, and it is.
\nIs it so very important? Critically so.<\/p>\nThe \u2018administration of justice\u2019 as a principle goes hand in hand with the principle of \u2018open justice\u2019, and they both form a key foundation stone on which any democratic society is built. Undermine it, and the fabric of your democracy starts to crumble. Extremist totalitarian and corrupt regimes, whether fascist or communist, flourish as a result.<\/p>\n
Hence we get to the nub of the problem. The Opposition under Abbott and subsequently as Government, always seemed content to use the justice system as a political weapon in an endeavor to defeat or exact revenge from identified opponents. It has been their M.O. The pursuit of Slipper in which Brough was involved, as were others in the Government, is just one example. The Ashby affair has also raised the concern in its being just another step in the apparent politicisation of the Australian Federal Police, and in on going attempts to politicise the courts.<\/p>\n
In the last two years we have seen in operation three Royal Commissions. The Royal Commission into the sexual abuse of children by institutions has been a very fine example of how a Royal Commission should be structured and how it should behave. There was no political agenda, the terms of reference were broad and it appeared driven by a desire to get to the truth. It was implemented by the previous Government and continues despite budget cut-backs.<\/p>\n
The Royal Commission into Pink Batts was designed to attack the Abbott Government\u2019s political opponents, which it did although not very successfully, and has now faded into obscurity.<\/p>\n
The Trade Union Royal Commission is similarly being used to achieve a political end. Its narrow terms of reference were designed to only identify corruption in certain unions and union officials. TURC certainly wasn\u2019t supposed to find companies who may be complicit in the corruption, nor favoured whistle-blowers like Kathy Jackson. Turc\u2019s performance, its treatment of company officials who\u2019ve been called, Kathy Jackson and lack of real understanding of Industrial Relations law enshrined in High Court precedents has resulted in its abject failures so far to \u2018get their man\u2019 or \u2018woman\u2019. Its competence aside, it has now been tainted beyond repair. TURC, it seems, is proving to be \u2018a bridge too far\u2019.<\/p>\n
These two Royal Commissions are part of this M.O.; one of using the justice system as a weapon to achieve an outcome as part of a political agenda. These are Abbott\u2019s legacies, and therein lies the real problem for Malcolm Turnbull. He\u2019s inherited them.<\/p>\n
By appointing Mal Brough to the Cabinet, Turnbull runs the risk of being tainted by the odour that seems to follow the Ashby saga wherever it goes. One thing is certain. It is not going away.<\/p>\n
As is being reported by the mainstream media, the AFP is continuing to investigate<\/a> these allegations. Questions arise as to the appropriateness of Brough to be given any Cabinet position, especially one involving probity and ethics.<\/p>\n
\nAFP Brough investigation letter to @GrahamPerrettMP<\/a>: Slipper now the primary stolen diary complainant #Ashbygate<\/a> pic.twitter.com\/ALqXu9A8Ay<\/a><\/p>\n
\u2014 Margo Kingston (@margokingston1) September 23, 2015<\/a><\/p><\/blockquote>\n