Professional Documents
Culture Documents
Submissions On Appeal
Submissions On Appeal
Submissions On Appeal
1. I write to appeal the Internal Appeals Tribunal (IAT)’s summary dismissal of charges I brought
against Robert Carr.
A. The Charge
2. I charged Mr Carr with bringing the party into disrepute, contrary to Rule A.33(a). That rule
provides:
Any member can charge another member with:
● bringing the Party into disrepute;...
3. The case against Mr Carr was that, on the proper interpretation of Rule A.33(a), ‘bringing the
Party into disrepute’ includes conduct which creates the appearance of impropriety and lowers
the Party’s reputation. I argued that Mr Carr had engaged in such conduct, because of the
appearance that he had used his political connections for the advantage of a private donor to his
Australia-China Relations Institute, Huang Xiangmo.
B. The Proceedings Below
4. On 4 June 2018, I received a letter requiring me to provide submission why the charge should
not be summarily dismissed within four days (Annexure A). That email did not come from any
of the IAT members, but from Ellyse Harding, Executive Officer of NSW Labor.
5. On 6 June, I provided that submission (Annexure B). After that date, neither the IAT nor Ms
Harding requested further submissions from me, gave me the opportunity of an oral hearing, or
provided me with Mr Carr’s submissions.
6. On 6 July, I was informed the IAT had summarily dismissed the charge (Annexure C).
C. Grounds of Appeal
7. I appeal on three grounds.
i. First, that the IAT’s summary dismissal of the charge should be overturned on the grounds of
apprehended bias.
ii. Second, that the IAT wrongly concluded that it was not reasonably arguable that conduct
creating the appearance of impropriety is sufficient to bring the party into disrepute.
iii. Third, that the IAT wrongly concluded it was not reasonably arguable that Mr Carr’s
conduct created the appearance of impropriety.
8. The remedy I seek is that the summary dismissal be overturned, and an oral hearing be held into
the original charge.
i. The IAT’s summary dismissal of the charge should be overturned on the grounds of
apprehended bias
9. The IAT’s purpose is to provide independent dispute resolution in relation to party appeals. It
can only fulfil that function as long as it retains the confidence of party members, and to do
1
that, it must not just be b ut be seen to be independent. For that reason, it operates
non-factionally and is composed of legal practitioners not seeking election or appointment to
public office.1 My argument is that, as with any other administrative or judicial decision-maker,
the IAT is subject to the rule against apprehended bias - that is, its decisions may be overturned
if a fair-minded lay observer might reasonably apprehend that an IAT member might not bring
an impartial mind to the question they are required to decide.2 As the IAT itself acknowledged,
this is a stringent test.3
10. Three factors might lead a fair-minded observer to suspect the IAT might not have been
impartial in dismissing my charge.
11. First, one of the members of the IAT who decided on the summary dismissal was Robert Allen.
4
Mr Allen should have recused himself from the Tribunal. He is a member of the NSW Right
faction, and was previously elected Assistant General Secretary5 and to the Rules Committee6 on
the NSW Right’s factional ticket. That same faction supported Bob Carr throughout his political
career,7 and was recently embarrassed by faction member Sam Dastyari’s resignation over his
connections to Mr Huang8 - the same private donor Mr Carr is accused of appearing to benefit.
A factional member should not decide on the fate of another member of their faction, especially
when their faction’s broader reputation is particularly affected.
12. Second, the letter I received requiring me to provide submissions as to why the charge should
be dismissed (Annexure A) has a number of troubling features.
a. It was not sent to me by a member of the IAT, but by Ellyse Harding, who is an
employee of Head Office and a member of the NSW Right. A fair-minded observer
might conclude that the IAT was coordinating closely with Head Office NSW Right
employees in determining the the charge, rather than receiving submissions from all
parties involved on an equal footing.
b. The letter fundamentally misconstrues the nature of the charge - as accusing Mr Carr of
‘working for overseas interests’, rather than bringing the Party into disrepute through
the appearance of impropriety. It does so by reference, not to the charge or my
1
Rule J.4(b)-(c).
2
See, eg, Livesey v New South Wales Bar Association (1983) 151 CLR 288 [7] (Mason, Murphy, Brennan, Deane and Dawson JJ);
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Minister for
Immigration v Jia Legeng (2001) 205 CLR 507 [95] (Gleeson CJ and Gummow J), [111] (Kirby J), [185] (Hayne J).
3
Annexure C, [11].
4
Annexure C, pg 1.
5
Joe Sammaras, ‘The NSW Left’s Big Weekend’, Crikey (online), 17 November 2009,
<https://www.crikey.com.au/2009/11/17/the-nsw-lefts-big-weekend/>.
6
NSW Centre Unity 2014 Candidates,
<http://wixxyleaks.com/wp-content/uploads/2014/08/CentreUnityConferenceCandidates.pdf>, pg 10.
7
Peter Hartcher, ‘Bob Carr: Minister for Noithing’, The Sydney Morning Herald (online), 12 April 2014,
<https://www.smh.com.au/opinion/bob-carr-former-minister-for-nothing-20140411-zqtne.html>; ‘Bob Carr: Career
Politician Steps Down After 30 Years of Service’, ABC News (online), 23 October 2013,
<http://www.abc.net.au/news/2013-10-23/bob-carr-profile/5039812>.
8
Nick McKenzie, James Massola and Richard Baker, ‘Labor Senator Sam Dastyari Warned Wealthy Chinese Donor Huang
Xiangmo His Phone Was Bugged’, The Sydney Morning Herald (online), 29 November 2017,
<https://www.smh.com.au/politics/federal/labor-senator-sam-dastyari-warned-wealthy-chinese-donor-huang-xiangmo-his-
phone-was-bugged-20171128-gzu14c.html>.
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submissions, but to media reports written before my submissions were filed. A
fair-minded observer might suspect that the IAT had prejudged the charge on the basis
of those media reports, rather than by reference to my submissions.
c. Finally, the letter itself was sent immediately before close of business on Monday 4 June,
requiring a response by 5pm on Friday 8 June. But this was a complex matter, involving
a contested technical interpretation of the rules. The IAT itself took a month to reach
its determination. A fair-minded observer might suspect that the IAT wished to dispose
of the matter without giving me the opportunity to seek legal advice or gather evidence.
13. Correspondence with the IAT should be with the IAT, not a factional employee; proceed on
the basis of the charge, not inaccurate media reporting; and allow members a reasonable
opportunity to seek advice and make submissions on the issues, not require a response from a
full time worker within 96 hours. That letter should not have been sent.
14. Third, the language of the IAT’s decision might lead a fair-minded observer to reasonably
suspect that the IAT might have engaged in prejudgment of the charge, based on how it had
been misinterpreted in media reports, rather than considering the submissions actually
presented to it. As I stressed in my initial submission to the Tribunal:9
The charge is that Mr Carr has brought the Party into disrepute. This does not mean he
has necessarily done anything illegal, or even improper. [Emphasis added]
15. The thrust of my case was that ‘Mr Carr has engaged in conduct that creates the appearance of
impropriety, which has lowered the Party’s reputation, by appearing to use his political
connections for the benefit of a private donor to his institute, who is widely reputed to have
connections to the authoritarian Chinese Communist Party’.10 It was not my submission that Mr
Carr’s mere association with Mr Huang was improper; simply that his conduct created the
appearance he had acted for a private donor’s benefit. The IAT did not engage with this case,
but with a case I did not m ake - that mere association would bring the Party into disrepute:11
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. [Emphasis added]
16. Part of my submission dealt with the likely effect of the apparent impropriety on the Party’s
reputation. In this context, I noted that Mr Huang ‘is widely reputed to have connections to the
authoritarian Chinese Communist Party’12 and that as a result, Mr Huang’s ‘potential connection
to an authoritarian foreign government furthers this appearance of impropriety’.13 It was not my
9
Annexure B, [4].
10
Annexure B, [4].
11
Annexure C, [18].
12
Annexure B, [4].
13
Annexure B, [21].
3
submission that Mr Carr himself lacked loyalty to Australia; simply that Mr Huang’s
connections contributed to the appearance of impropriety. The IAT did not engage with this
case, but with a case I did not make - the case that Mr Carr was ‘working for a foreign
government’ that was misconstrued from media reports:14
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. [Emphasis added]
17. In addressing the effect on the Party’s reputation, I noted that the apparent impropriety ‘is
especially likely to lower the Party’s reputation, because Mr Carr is its former NSW leader and
Commonwealth Foreign Minister, and because a number of Mr Carr’s former Ministers are
currently in prison for corruption-related offences’.15 It was not my submission that Mr Carr
was himself guilty of corruption-related offences; simply that his former association with those
people made it more likely his recent conduct would produce the appearance of impropriety.
The IAT did not engage with this case, but with a case I expressly did not make - that Mr Carr
was personally involved in those offences:16
...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.
18. The IAT failed to engage with the case actually before it - that Mr Carr’s conduct, while not
necessarily illegal or improper, had created the appearance of impropriety. In fact, the only
person to raise the possibility of Mr Carr being disloyal to Australia or personally involved in his
Ministers’ various corruption offences was the IAT itself.17 A fair-minded observer might
reasonably conclude that the IAT might have prejudged the charge based on how it was
misinterpreted in media reports, rather fairly considering the submissions before it.
19. For the reasons given above, a fair-minded observer might suspect the IAT might not have
been impartial in dismissing my charge. Accordingly, that summary dismissal should be
overturned on the grounds of apprehended bias.
ii. The IAT wrongly concluded that it was not reasonably arguable that conduct creating the
appearance of impropriety is sufficient to bring the party into disrepute.
20. The IAT accepted that, in determining whether to summarily dismiss a charge under Rule
J.8(c)(i), ‘the question is whether the charge is manifestly groundless’.18 My submission is that it
14
Annexure C, [12].
15
Annexure B, [20].
16
Annexure C, [12].
17
Annexure C, [12].
18
Annexure B, [9].
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is reasonably arguable that ‘bringing the Party into disrepute’ includes conduct which creates the
appearance of impropriety in the mind of the reasonable observer, and which lowers the Party’s
reputation. I gave three reasons for making this submission.19
First, this interpretation is supported by the language of Rule A.33(a). On both its
ordinary and technical legal meanings, bringing a person into disrepute means damaging
their reputation. The focus of the language is on the Party’s appearance; therefore the
appearance of misconduct is sufficient.
Second, this interpretation is supported by the context of Rule A.33(a). Rule A.33(i)
provides:
Without limiting the generality of subsection (a), ‘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.
Rule A.33(i) specifies that a person being investigated for improper conduct by a public
authority can bring the Party into disrepute. It does not specify that the public authority
must actually find the person has engaged in improper conduct, still less that the person
has actually engaged in improper conduct. It confirms Rule A.33’s focus is on the
appearance of impropriety and the damage to the Party’s reputation.
Third, this interpretation is supported by the purpose of Rule A.33(a). The Party is a
political party which aims to win popular support at elections. The ability to discipline a
person who has reduced the Party’s reputation through the appearance of impropriety
furthers that purpose. Indeed, the 2013 Federal Executive intervention into NSW Labor
was for the very purpose of removing the appearance of impropriety, and it was that
intervention that produced Rule A.33 in its current form.
21. The IAT did not engage with the first or third of these reasons. Nor did it clearly state what it
interpreted ‘bring the Party into disrepute’ to mean, if it did not include the appearance of
impropriety. Instead, it offered three reasons for rejecting this interpretation. The first was to
say that the test was too stringent:20
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 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… 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.
19
Annexure B, [14]-[17].
20
Annexure C, [13]-[14].
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22. My submission was not that Mr Carr might have lowered the Party’s reputation. It was that the
appearance of his impropriety had in fact lowered the Party’s reputation - and that the
appropriate test for whether there was an appearance of impropriety was by reference to the
reasonable suspicions of the fair-minded observer. Contrary to the IAT’s decision,21 that test is
applied not just to judicial officers but to every administrative decision-maker22 - including
Ministers of the Crown.23 It is entirely appropriate that it be applied to leading members of the
Party, because the Party and its leaders should be above suspicion.
23. The IAT’s second reason for rejecting this interpretation related to Rule A.33(i), which
expressly provides that ‘bringing the party into disrepute’ may in some circumstances include
members being investigated by a public authority for improper conduct. The IAT reasoned that
the express inclusion of Rule A.33(i) ‘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”’.24 This was apparently an attempt to apply the maxim expressio unius est exlucsio alterius
- that is, that the express inclusion of apparent impropriety under investigation by public
authorities meant that other apparent impropriety was impliedly excluded. Courts have frequently
commented that maxim may be an unreliable guide to interpretation.25 In any event, the maxim
plainly does not apply here, because Rule A.33(i) expressly provides that it operates ‘Without
limiting the generality of subsection (a)’.
24. The IAT’s third reason for rejecting this interpretation was a slippery slope argument. The IAT
considered that:26
The logical conclusion of [Mr Powell’s] 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… that proposition needs only to be
stated to be rejected.
25. That is not my case. It is not my submission (or its logical conclusion) that mere adverse media
reporting brings the Party into disrepute. Rather, my submission is that if a reasonable person
would look at Mr Carr’s conduct and see the appearance of impropriety, such that the Party’s
reputation has been damaged, Mr Carr’s conduct has brought the Party into disrepute. If the
adverse media reporting was baseless, partisan or ad hominem, the IAT could find that a
reasonable person would not form that suspicion.
21
Annexure C, [13].
22
See, eg, Hot Holdings Pty Ltd v Creasy (2002) 193 ALR 90, 101 (Gaudron, Gummow and Hayne JJ), 105 (McHugh J).
23
See, eg, Minister for Immigration v Jia Legeng (2001) 205 CLR 507 [95] (Gleeson CJ and Gummow J), [111] (Kirby J), [185]
(Hayne J).
24
Annexure C, [15].
25
See, eg, Houssein v Under Secretary of Industrial Relations & Technology (NSW) (1982) 148 CLR 88 [10] (Stephen, Mason, Aickin,
Wilson and Brennan JJ); O'Sullivan v Farrer (1989) 168 CLR 210 [10] (Mason CJ, Brennan, Dawson, and Gaudron JJ).
26
Annexure C, [14].
6
26. For the reasons given above, the IAT wrongly concluded that it was not reasonably arguable
that conduct creating the appearance of impropriety is sufficient to bring the party into
disrepute. Accordingly, the IAT’s summary dismissal should be overturned.
iii. The IAT wrongly concluded it was not reasonably arguable that Mr Carr’s conduct created
the appearance of impropriety.
27. The following facts were apparently undisputed before the IAT.27
a. First, Mr Carr is the director of the Australia-China Relations Institute (Sydney Morning
Herald, 28 May; Australia-China Relations Institute website).
b. Second, the Australia-China Relations Institute is heavily funded by Huang Xiangmo
(UTS news announcement, 17 December 2013; ABC News, 6 June 2017). Mr Huang is
reputed to be closely connected to the CCP (Sydney Morning Herald, 30 January 2018;
ABC News, 12 December 2017).
c. Third, in August 2016 John Garnaut was commissioned to conduct a highly classified
inquiry with ASIO into China’s clandestine activities in Australia, and in particular, into
the activities of Mr Huang, who it was suggested was working on behalf of the CCP
(Sydney Morning Herald, 28 May 2018).
d. Fourth, Mr Garnaut and his inquiry have been of considerable interest to the Chinese
Ministry of State Security - even to the extent of detaining and interrogating a Sydney
academic in the hope of receiving more information about Mr Garnaut (Sydney
Morning Herald, 29 May 2018).
e. Fifth, Fairfax Media have very publicly accused Mr Carr of asking Senator Kristina
Keneally ‘to use parliament to find out details of the employment, job title, and contract
of government adviser John Garnaut’ (Sydney Morning Herald, 28 May 2018; Australian
Financial Review, 30 May 2018).
f. Sixth, each of these facts have been the subject of widespread negative media coverage
(see above links).
28. The IAT accepted that, in determining whether to summarily dismiss a charge under Rule
J.8(c)(i), ‘the question is whether the charge is manifestly groundless’.28 My submission is that it
is at least reasonably arguable that these facts would create the appearance of impropriety in the
mind of the reasonable observer, and thus, on the interpretation of the Rule A.33(a) set out
above, bring the Party into disrepute. As the IAT acknowledged, its summary dismissal of
proceedings without a full hearing was analogous to a court’s;29 therefore, because the IAT has
not yet had the opportunity to hear all the evidence or both side’s submissions, it ought to err
on the side of leaving factual ambiguities open to a full hearing.
29. The IAT gave two reasons for rejecting the characterisation of Mr Carr’s conduct as bringing
the Party into disrepute. The first was that Mr Carr’s conduct did not raise the appearance of
impropriety: ‘one must ask why it [would be] improper for Senator Keneally to ask questions
concerning Mr Garnaut and why it [would be] improper for Professor Carr to suggest that she
27
Annexure B, [19]; see also Annexure C, [10].
28
Annexure B, [9].
29
Annexure C, [8].
7
ask those questions.’30 My submission is that a reasonable observer might conclude that, by
asking these questions, Mr Carr has used his political connections for the advantage of a private
donor to his Institute. Mr Garnaut’s inquiry seems to have concerned Mr Huang’s activities, and
Ms Keneally’s questions sought information about that inquiry. This appearance is especially
likely to lower the Party’s reputation, because Mr Carr is its former NSW leader and
Commonwealth Foreign Minister, and the allegations come at a time where there is global
concern about foreign interference in domestic elections, and the Australian media have alleged
CCP influence in Australian domestic politics - specifically, through Mr Huang.31 If there would
be nothing improper about Mr Carr asking for this favour from Ms Keneally (if in fact he did),
one might ask why leading national newspapers have criticised him for it,32 political rivals have
pointed to it as an example of Labor impropriety,33 and Mr Carr has strenuously denied the
allegation.34
30. The IAT’s second reason for rejecting this characterisation was that, even if Mr Carr’s conduct
was improper, it would not bring the Party into disrepute:35
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… have an impact on the reputation of, the Party
31. It defies reality to suggest that, because Mr Carr no longer holds public office, he cannot
damage the reputation of the Party by the appearance that he has improperly used his influence
over those who do hold office. Mr Carr is a former NSW Premier and Commonwealth Minister
for Foreign Affairs. There are very few people who can be more closely identified with NSW
Labor. The fact that Mr Carr’s former Ministers Eddie Obeid and Ian McDonald are now
private citizens without public office certainly has not stopped their apparent impropriety from
damaging the Party’s reputation and being the subject of ongoing Liberal campaigns and media
criticism. Similarly, the fact that Mr Carr is now a private citizen has not stopped national
newspapers or political rivals from damaging the Party’s reputation by reference to his apparent
misconduct. If Rule A.33(a) only applied to politicians while they held public office, it would say
so. Instead, it refers to members charging other members.
30
Annexure C, [18].
31
Stephanie Borys, ‘China's “Brazen” and “Aggressive” Political Interference Outlined in Top-Secret Report’, ABC News
(online), 29 May 2018,
<http://www.abc.net.au/news/2018-05-29/chinas-been-interfering-in-australian-politics-for-past-decade/9810236>.
32
Nick McKenzie and Nick O'Malley, ‘Bob Carr Enlists Labor in New China Influence Row’, Sydney Morning Herald (online),
28 May 2018,
<https://www.smh.com.au/politics/federal/bob-carr-enlists-labor-in-new-china-influence-row-20180528-p4zi0z.html>.
33
Andrew Tillett, ‘Julie Bishop Hits Out at Bob Carr over China Links’, Australian Financial Review (online), 30 May 2018,
<https://www.afr.com/news/julie-bishop-hits-out-at-bob-carr-over-china-links-20180530-h10rbx>.
34
Primrose Riordan, ‘ALP Leak Hits Keneally and Carr over China Influence Questions’, The Australian (online), 30 May
2018,
<https://www.theaustralian.com.au/national-affairs/foreign-affairs/alp-leak-hits-keneally-and-carr-over-china-influence-qu
estions/news-story/6143311819a273ba4ab7b961c35bbea7>.
35
Annexure C, [11].
8
32. For the reasons given above, the IAT wrongly concluded that it was not reasonably arguable
that Mr Carr’s conduct created the appearance of impropriety. Accordingly, the IAT’s summary
dismissal should be overturned.
D. Conclusion
33. Members of the Labor Party have the right to expect that their leaders will be above suspicion,
and that their complaints will be dealt with fairly and without the appearance of bias. In its
decision, the IAT failed to uphold either principle.
34. I wish to stress that allowing this appeal does not require the Tribunal to find that Mr Carr has
done anything illegal, or improper, or even that he has necessarily created the appearance of
impropriety. It merely acknowledges that this interpretation of the rules and characterisation is
reasonably arguable, and that all parties - including Mr Carr - should have the opportunity of
putting their interpretation and submissions before the IAT, in a full hearing without the
appearance of bias, so that these issues can be properly determined.
35. I would be grateful for the opportunity to make further submissions in reply to any made by Mr
Carr or party officers, and for the chance to address any questions the Tribunal may have.
Yours faithfully,
Mark Powell.
9