Julia Gillard has used a judicial appointment to bribe Australian Council of Trade Unions (ACTU) Secretary Dave Oliver and shore up her internal Labor Party support as Prime Minister. Mr Oliver’s wife Suzanne Jones was last month appointed as a judge of the Federal Circuit Court even though she does not have the experience. This happened only 19 months after Mrs Jones was appointed a Commissioner at the Fair Work Commission.

Suzanne Jones appointment would normally be considered a job for “the boys and girls” which all political parties do on a regular basis. The difference here is that there is an immediate and blatant benefit for Julia Gillard which then makes it what it is, a clear bribe by Julia Gillard to Dave Oliver to keep her reign as Prime Minister and beat off any challengers such as Kevin Rudd. This was driven home last week when I read in the SMH “Gillard’s union power base remains her best chance of seeing off another challenge if it comes” “and Dave Oliver of the ACTU have showed no signs of withdrawing their  support.” (Click here to read more)

Background – The evidence

There is some key supporting evidence that the bribe took place which came out during a Federal Senate Estimates hearing at the end of last month on the 29th and 30th May which we will get to soon. Firstly though, it is important to understand how the appointment process is meant to work and to know some of the players involved.

The position of Judge for the Federal Circuit Court (formerly the Federal Magistrates Court until April this year) is advertised and applications taken. Then some of the applicants are interviewed. They are interviewed by a panel of three people. In this case Chief Judge John Pascoe, Susan Morgan who is a retired Family Court judge and Ms Louise Glanville, First Assistant Secretary, Attorney-General’s Department.

A short list is then sent to the Attorney-General who then takes it to cabinet for a decision and/or approval of who the appointments will be.

Suzanne Jones appointment was reported last month when it was announced by the Attorney-General Mark Dreyfus QC on the 16th May 2013 and a couple of journalists questioned the appointment for obvious reasons. But it did not go much further than that.

Suzanne Jones appointment as judge of the Federal Circuit Court

Suzanne Jones has no experience in Family Law which will make up 80 to 85% of the cases she is meant to hear and hand down judgements in. There were over 100 applicants and you would have to assume that some would have had 10, 20 or 30 years Family Law experience but were deemed not good enough, yet Mrs Jones with no Family Law experience was a the top choice. She has had a dream run in judicial appointments. Two in the space of less than 2 years which is unheard of. Her resume briefly:

“From 1977 to 1979, Ms Jones was the associate to Deputy President Isaac of the Australian Conciliation and Arbitration Commission. In 1984, Ms Jones commenced work at the Australian Council of Trade Unions, become a Senior Industrial Officer in 1989 and a National Advocate in 1999.”

“In 2001, Ms Jones was admitted to practice in the Supreme Court of Victoria” (Click here to read more)

“Your Honour came to the law a mere 13 years ago following a distinguished career in industrial relations”

“After finishing your law degree in, Your Honour served articles at Maurice Blackburn. Almost immediately after admission, you went to the Bar.” (Click here to read more)

Mrs Jones was appointed as a Commissioner of Fair Work Australia in September 2011 and was appointed a Judge of the Federal Circuit Court in May 2013.

Transcript from the Senate Legal and Constitutional Affairs Legislation Committee – Estimates – May 29th and 30th 2013. (Click here for the full transcript for May 29th) and (Click here for the full transcript for May 30th)

May 29th

Senator BRANDIS: We heard from Mr Fredericks that, in relation to the Sydney and Melbourne appointments, there was only ever one short list. In other words, the same names; one finite group of names that did not change. By ‘iterations’ I mean different versions of a short list with perhaps different names included or omitted.

(Mr Frederick spoke in relation to Federal Court of Australia judicial appointments not the Federal Circuit Court)

Ms Glanville: Because there were four appointments to be made—two to Melbourne, one to Darwin and one to Sydney—there was an initial short list and then, depending on the outcomes of that, there was a subsequent short list.

Senator BRANDIS: So there were two?

Ms Glanville: Yes.

Senator BRANDIS: Was Ms Suzanne Jones on the initial short list?

Ms Glanville: She was on the second short list.

Senator BRANDIS: She was not on the first short list?

Ms Glanville: No.

Senator BRANDIS: How many names were on the first short list?

Ms Glanville: I would have to take that on notice.

Senator BRANDIS: Approximately?

Ms Glanville: I would have to take that on notice.

Senator BRANDIS: How many names were added to the short list when the second short list was prepared?

Ms Glanville: About five, but I would have to check that.

Senator BRANDIS: So Ms Suzanne Jones was one of about five people who did not make the short list but made the second short list?

And

Senator BRANDIS: Can you explain to me, please, why in the case of this particular applicant, who did not make the short list when it was first prepared—Ms Jones; Mr Oliver’s wife—she was chosen from the unsuccessful applicants to be on the second short list?

Ms Glanville: It is not that there are unsuccessful applicants; it is that the process—

Senator BRANDIS: There are people who are on the short list and there are people who are not on the short list.

Ms Glanville: There are people who have applied to be federal magistrates, as it was then, and, when there are a significant number of appointments to be made to a number of different jurisdictions, it is a matter of ensuring that there is the right mix of candidates for the needs of the particular jurisdictions.

Senator BRANDIS: That decision can be made at the time the initial short list is prepared. Indeed, you heard Mr Fredericks speaking about the Federal Court, that only one short list had to be prepared. The same principles of selection would presumably apply to another Federal Court, would they not?

Ms Glanville: The reality is that until you commence and conclude the process of what might be your primary candidates of interest you are not sure whether the mix is right and whether the applicants being interviewed have the requisite skills for the positions that are being sought.

Senator BRANDIS: Or connections with the Australian Labor Party?

Senator BRANDIS: Ms Glanville, you have not answered my last question. Why in particular was Ms Suzanne Jones selected from the candidates who were not on the initial short list to be included on the second short list? Why her rather than any of the other candidates who did not appear on the first short list?

Ms Glanville: Because she was part of the group that I referred to that were very close but did not make the first cut. She was discussed as part of that initial process and following the first round of interviews there were then some further candidates interviewed.

Senator BRANDIS: Did people go off the short list as well as go onto the short list between the first short list and the second short list?

Ms Glanville: No.

Senator BRANDIS: So the additional five people who were on the second short list but not the first short list were in supplementation of not in substitution for candidates on the first short list?

Now watch Ms Glanville duck and weave:

Senator BRANDIS: When was the first short list sent to the Attorney-General?

Ms Glanville: We do not send the short list to the Attorney-General.

Senator BRANDIS: So you do not follow the practice that Mr Fredericks follows for the Federal Court?

Ms Glanville: There might be the running through of who has applied—

Senator BRANDIS: And who is on the short list?

Ms Glanville: Yes but it is not sent to the Attorney-General as such.

Senator BRANDIS: Is the Attorney-General either directly or through his political staff—

Ms Glanville: It is a similar process to the one that Mr Fredericks described.

Senator BRANDIS: If it is similar to the process that Mr Fredericks described, then the Attorney-General’s office would have been made aware of who was on the shortlist. Did that happen?

Ms Glanville: Yes.

Senator BRANDIS: Were they made aware of who was on the first short list?

Ms Glanville: Yes.

Senator BRANDIS: And presumably they were also made aware of who was on the second short list?

Ms Glanville: I will need to check that because in the intervening period there was a change of Attorney-General. To be clear on that I would need to look at what impact that would have had on the process.

It is obvious to me from reading the transcript to this point that the first short list was sent to the Attorney-General Mark Dreyfus QC and he has sent it back saying to add Suzanne Jones. And I have no doubt he has done this on Julia Gillard’s instructions given her previous form which I will get to soon.

May 30th

Senator BRANDIS: I was asking when we adjourned last night about the appointment of Ms Suzanne Jones as a judge of the Federal Circuit Court. What was the particular specialisation that Ms Jones, now Judge Jones, brought to the court?

Mr Wilkins: I will refer to Ms Glanville.

Ms Glanville: In appointments to the Federal Circuit Court, the panel looks for generic dispositions—

Senator BRANDIS: What does ‘dispositions’ mean?

Ms Glanville: Expertise, in other words. Essentially, because the jurisdiction of the Federal Circuit Court is quite broad and perhaps will become broader into the future, the panel looks for a range of areas of expertise. It could be family law, it could be migration law, it could be some taxation law—a variety of those sorts of matters. So, in relation to Ms Jones, that candidate—I do not have her CV with me—comes with a background I think that relates to the general federal law side rather than family law.

Senator BRANDIS: General federal law, really? Does Her Honour have any expertise beyond industrial law?

Ms Glanville: Without having access to her CV and other documentation, I could not comment on that.

Senator BRANDIS: You said that the court deals with a range of matters across the whole of federal law, which of course is true. But it is also true, as we heard from Mr Foster yesterday afternoon, that more than 80 per cent—closer to 85 per cent—of matters are family law matters, and the much smaller proportion of Federal Circuit Court matters are what are called general federal law matters. Does Ms Jones have any expertise in family law?

Ms Glanville: Once again, I would need to look at her CV to give you an answer to that specifically—

Senator BRANDIS: I can tell you, according to the Attorney-General’s press release of 16 May, to which he has attached a brief CV of Ms Jones, there is no suggestion that she has any experience in family law matters at all.

Ms Glanville: I accept what you say.

Senator BRANDIS: It is the case, is it not, that, for that particular appointment for that particular position on the court, the court was looking for another specialist family lawyer?

And:

Senator BRANDIS: And what I am putting to you is that, in relation to the particular position on the court that Ms Jones, Judge Jones, was appointed to fill, the court was looking for a family law specialist to replace a family law spot.

Ms Glanville: As I said, in the panel and the convening of the panel, what the panel looks for are applicants who can work across the jurisdictions of the court, and the importance of having the chief judge, John Pascoe, on the panel is to advise on exactly those sorts of issues.

Senator BRANDIS: So is it your evidence to the committee that Chief Judge Pascoe did not acquaint the panel with the fact that the position to which Ms Jones was being appointed was a position in which the court was looking for a family law specialist?

And:

Senator BRANDIS: Does Ms Jones have any family law experience at all?

Ms Glanville: As I said, without looking at her full CV I could not answer that question.

Senator BRANDIS: Well, the answer is ‘no’. She was an industrial lawyer and she had been recruited from the Fair Work Commission—

And:

Senator BRANDIS: I can understand, because this is not a perfect science, that it might be able to be explained that a person who, from a very large number of applicants, did not make the shortlist on its first iteration might have ended up getting the job. I can understand, perhaps, how when the court was looking for a specialist family lawyer it ended up with a specialist industrial lawyer with no experience in family law. Each of those circumstances is anomalous but, nevertheless, they might each be able to be explained away. But when both of those sets of circumstances operate in the case of a particular selection—a person is chosen with no expertise or experience in the field where the court is looking to find a replacement, and the person who is chosen is somebody who did not even make the shortlist in its first iteration—and then we learn that the person happens to be married to the president of the ACTU, do not you think, Ms Glanville, that that raises suspicions that perhaps this was not a purely meritocratic process?

It did get a bit heated and the Secretary of the Attorney-General’s Department Mr Roger Wilkins AO said this:

Mr Wilkins: I think Ms Glanville has been trying to give her evidence, but if now the suggestion is that there were some corruption involved—

And:

Mr Wilkins: If somebody is suggesting that, particularly if the chief judge was involved—

I am suggesting that Chief Judge John Pascoe is as corrupt as they come as outlined in a previous post titled “The handiwork of Chief Federal Magistrate John Pascoe – witness bribing, price-fixing, succumbing to blackmail to conceal a crime and lying to shareholders etc. Is there anything this man cannot do?” (Click here to read)

Julie Gillard – Bernard Murphy appointment to the Federal Court of Australia

Julia Gillard has strong form on the board of dodgy judicial appointments for her friends. In 2011 Prime Minister Gillard appointed her former boss at Slater and Gordon lawyers, Bernard Murphy, a judge of the Federal Court of Australia.

I wrote a post on it titled “Julia Gillard appoints Bernard Murphy, her partner in crime from Slater and Gordon Lawyers, as a Federal Court of Australia judge.”

Some of the highlights from the post in relation to Mr Murphy’s appointment which have a similarity to Suzanne Jones appointment:

“This is what it says on the Maurice Blackburn Lawyers website:”

“If you had asked Maurice Blackburn chairman Bernard Murphy this time last year whether he hoped to be a judge, he would have said no. “It hasn’t really been on my radar,” he admits. “It isn’t something that I had thought about until I applied in about October last year.” (So what happened between the beginning of 2010 when he had no intention of applying to be a judge and October 2010 when he applied. Well his mate Julia Gillard became Prime Minister).

“A former solicitor is rare enough on the bench; a former plaintiff lawyer is rarer still.”

“The man who once recruited Prime Minister Julia Gillard to his previous firm Slater & Gordon has spent 30 years defending the “victim” in court, as he has described clients in the past. More recently, it has been a sophisticated, shareholder victim, in the multimillion- dollar shareholder class actions Murphy has become known for.”

Even Chief Judge John Pascoe gets a mention.

“Murphy built Maurice Blackburn’s class action practice – the largest in Australia – from a one-man show, winning more than $700 million in damages along the way. And he still holds the record for the largest shareholder class action settlement – $144.5 million in the 2008 Aristocrat case.” (This was not only against Aristocrat but also the directors at the time one of which was none other than Chief Federal Magistrate John Pascoe) (Click here to read the full post)

Circumstantial Case

This is what is called a circumstantial case which Justice Gyles set out in Choundary v Capital Airport Group Pty Ltd [2006] FCA 1755 (18 December 2006) at:

3 The appellant was entitled to have that evidence considered at its highest.

and

23 This is a circumstantial case. The Federal Magistrate was required to take into account all inferences most favourable to the appellant, which could reasonably be drawn from the primary facts (see the decision of the Privy Council in Haw Tua Tau v Public Prosecutor [1982] AC 136 at 150).

What that basically means if based on the evidence you can reasonably draw those conclusions then the court has to take it as being true unless proven otherwise. People go to jail all the time in circumstantial cases where there is no direct evidence of a crime for every type of crime right up to murder.

As a Commissioner of FWA Suzanne Jones was paid $350,000 and as a Judge of the Federal Circuit Court she is now paid $314,000 which is a decrease. But the court has applied for a pay rise and if approved will take her salary to $360,000 which is an increase. A bribe does not have to be a financial gain. Ms Jones had a choice of staying as a Commissioner of FWA under a Liberal Party government in the near future and going nowhere given her union background or becoming a judge which has a lot more prestige, more diverse work and better opportunities later down the track. So ultimately a lot more money down the track whether or not the expected pay rise as a judge eventuates or not.

One last word for Senator George Brandis: From the transcript:

“What strikes me as surprising about this appointment is that I know from conversations I have had with many senior figures in the court that the court was looking in this particular case for a family law specialist to handle the family law list, which comprises upwards of 80 per cent of its work, and instead, from the large number of applicants for the position it received, it ended up with an industrial law specialist with no background in family law matters at all. Can you explain how that could have happened, Ms Glanville?”

No, Ms Glanville could not but the title of this post does: Prime Minister Julia Gillard bribed ACTU Secretary Dave Oliver to keep his support.

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