Today should be one of triumph for Delia Lawrie, leader of the Labor Party Opposition in the Northern Territory Legislative Assembly.
On this first sitting day of the new parliamentary year Lawrie and her party should be on an absolute roll and may, if God and a few disaffected Country Liberal Party members go her way during the now inevitable censure motion of the embattled Giles government, force on an election that could see government in the NT return to Labor.
For Lawrie the prize of chief ministership was, until very recently, hers very much for the taking. If not sooner, in the event the Giles government crumbled under the weight of its own foolishness, at least by the time the next election is due in August 2016. Lawrie has been largely unchallenged in her leadership since Labor suffered a well-deserved loss to then CLP leader Terry Mills in August 2012. Lawrie has long been Labor’s best attack-dog in the Legislative Assembly, a role perfectly suited as deputy to former Labor Chief Minister Paul Henderson but less so to the position of leader of an alternative government.
But recent events have shown Lawrie suffering under her own poor political judgment and a keenness for equally-poor political advice.
The Stella Maris is a cluster of buildings of uncertain age out of sight and mind on the edge of Darwin’s CBD. Over the past fifty years or so the Stella Maris buildings have been used variously as a “railway” house that was badly damaged by Cyclone Tracy in 1974, a bar and club operated by the Roman Catholic Stella Maris seafarers support organisation, as a hostel run by nuns who had previously worked at the East Point leprosarium and as a seafarer’s hostel until sometime in the nineties. For various reasons—sentimental or otherwise—in recent years the Union movement, and by association the NT Labor party, have stood as staunch supporters of the Stella Maris site as a valued, if nostalgic, relic of times past.
Stella Maris sat virtually abandoned for years and by mid-2012 someone in NT Labor thought it a good idea to gift the Stella Maris buildings to their loyal mates in Unions NT. But rather than go through the usual processes for transferring public property to private—or community-based—hands, Labor dusted off a three year-old Unions NT proposal and short-cut a clumsy rent-free transfer of the Stella Maris to Unions NT on the eve of the pre-election caretaker period that was described by bureaucrats at the time as “politically unwise.”
Labor lost power to the CLP in the August 2012 election and it didn’t take long for Labor’s folly to surface. In November 2013 the local NT News led with a series of articles, one of which, “A nice little earner”, put Delia Lawrie at the heart of the deal. Ben Smee’s piece asserted that Unions NT “stood to profit from the rent-free lease to the Stella Maris site.” Smee quoted Attorney-General John Elferink as considering an inquiry into the matter.
One week later Chief Minister Adam Giles rose in the Legislative Assembly to announce an inquiry into the Stella Maris ‘scandal’ under the Inquiries Act (NT), the equivalent of a Royal Commission. Two weeks later Giles announced the inquiry would be run by former Australian Crime Commission head John Lawler. Lawler’s inquiry kicked off in early 2014, initially focusing on the actions of Gerry McCarthy (now Lawrie’s deputy Opposition leader) but soon, as Lawler revealed in his report, following the receipt of key documents, “in particular five folders from the Department of Lands, Planning and the Environment covered events as far back as 2007”, his attention turned to then “Minister Delia Lawrie [who] held the Planning and Lands portfolio.”
Notwithstanding the apparent drama and seriousness of the inquiry, Lawler’s report, delivered to NT Administrator Sally Thomas in mid-May 2014 and tabled in the Legislative Assembly in late June 2014, delivered little more than a slap with the proverbial wet lettuce to Lawrie and McCarthy.
Of McCarthy, Lawler said:
Minister McCarthy’s decision was arguably unreasonable and, if challenged in a court, would be susceptible to being overturned. It was unreasonable because he did not have the necessary information to justify selectively choosing Unions NT over any other group. He should have sought this information and confirmed it before making the decision.
Lawler’s lettuce was even soggier for Lawrie:
Minister Lawrie acted with bias over many years, forming a view in 2009 that Unions NT should be exclusively granted a lease over the site without an expression of interest process.
Notwithstanding that Minister Lawrie may have genuinely believed that granting the site exclusively to Unions NT was in the public interest, the way she involved herself in the process was not proper and was unfair to the public and other community groups.
Perfectly understandable in a real-politik sense for mine is Lawrie’s justification for her bias and actions. Lawler said that Lawrie:
… maintained that this intervention was due to her concern that an incoming government could sell the site for commercial or residential high rise development and her long-standing preference was to grant the site to Unions NT.
Not that Lawrie, McCarthy and their legal team took Lawler’s inquiry lightly. Over 4 days in March and April 2014 McCarthy and Lawrie spent a total of 13 hours giving evidence to the inquiry, represented throughout by the local Labor-friendly law firm Halfpennys and leader of the local bar, Alistair Wyvill SC.
So seriously did Labor take Lawler’s inquiry that even before the report had been tabled in the Legislative Assembly Lawrie told her colleagues she expected “an ugly report”. Wyvill had prepared a draft of a writ to the NT Supreme Court that sought a declaration that Lawler had failed to “observe the requirements of procedural fairness” and that his report be quashed.
That writ–between Delia Phoebe Lawrie as Plaintiff and John Lawler as Defendant–was filed with the Court in late July and a summons was later issued to Lawler to attend at the Court in early September. Lawrie’s Statement of Facts and Contentions setting out her claim was filed with the Court later that month. At this point many within NT Labor and the wider NT community were questioning the wisdom of challenging a report that had produced little more than an occasional political flea-bite from Adam Giles and the CLP. For many, this was a dog best left to lie.
Further questions about the merits of bringing the action arose following preliminary hearings that saw the release to the defendant of a swathe of emails and letters between Lawrie, various other Labor MLAs, staffers and their legal advisors.
That material, tendered in court as evidence by the defence and seen by The Northern Myth, reveals a particularly forceful approach by Lawrie’s team to the Lawler inquiry.
On 31 March 2014 barrister Wyvill sent an email to McCarthy, Lawrie, her then Chief-of-Staff Michael Gleeson and solicitor Cathy Spurr, that set out a strategy for the final day of the inquiry hearings, where McCarthy would complete his evidence:
[W]e need to respond quite firmly to Lawler’s bold suggestion that we withdraw the allegation that he has expressed a “final view”- prejudged the connection between Stella Maris and Unions NT – by giving him both barrels including about the “urban myth” comment etc. I thinki (sic) it is important to put a few quotes on the record which you can use later to discredit his report without risking contempt/defamation.
It is also time to say to him that we have no confidence in the inquiry or him because of the unfairness of his conduct of the inquiry to date … we consider the inquiry to be a pointless waste of time and will not be co-operating with it any further?? And then ignore him from now on? By staying engaged we may actually be giving him the opportunity to try to fix up the messes we say he has created and also more chance to verbal us.
Twenty minutes later Delia Lawrie responded:
I fully concur with your advice. This has been a political stunt premised on lies. Give it to them both barrels.
McCarthy’s evidence the next day was a disaster, with McCarthy forced to admit that previous evidence given to the inquiry that he had been at a cabinet meeting when the Stella Maris matter was considered in 2012 was wrong, with telephone records showing that he had in fact been in Elliott, 700km south of Darwin on that day.
Two weeks later a further element of the strategy, apparently consistent with that outlined in Wyvill’s 31 March email, was unveiled. On 11 April 2014 a Halfpenny’s file-note, written by solicitor Cathy Spurr, recorded a four and a half-minute telephone attendance on Wyvill in which a proposed letter to Lawler was discussed. That letter–sent to Lawler on 15 March 2014 after being settled by Wyvill and Lawrie–said, in part:
Our clients have exhausted their ability to access pro bono legal assistance. Accordingly, we will no longer be representing Ms Lawrie and Mr McCarthy in this matter … Our client remains vitally interested in the outcome of the enquiry.
Five weeks later Lawrie sent a note to her ‘team’ in anticipation of the delivery of the Lawler report to the NT Administrator that day.
Hi team, we understand that the Stella Maris Inquiry report is being handed to the Administrator today … We expect an ugly report because Lawler has shown his colours throughout the Inquiry.
This theme of Lawler’s apparent bias recurred in a note from Lawrie’s chief-of-staff Gleeson the day before the Lawler report was due to be tabled in the NT parliament. In an email to Spurr, Wyvill and Lawrie, Gleeson provides drafts of two alternate speeches for Lawrie ‘depending on the findings.’ The first, ‘assuming adverse findings’ says in part ‘Accordingly, I have instructed my barrister to make a submission to the Supreme Court this morning for these findings to be quashed’ and ‘As this matter is now before the courts I will be making no further comment.
The second, ‘assuming no adverse findings’ took aim at Lawler, describing his inquiry as:
A political witch hunt from the beginning … our legal team had to work pro bono because the government wanted to hurt us financially as well as politically … and so to Lawler … a policeman … ill equipped to run any sort of legal inquiry. The inquiry was conducted unfairly from the beginning, reflecting we believe Lawler’s lack of qualifications, experience or skills to run such an inquiry such as this … his chequered career includes the appalling slur on all of Australia’s professional sportsmen when he was CEO of the Australian Crime Commission … this government knew they had a man who would do their bidding … do what his political masters wanted.
Later that day Wyvill sent his draft Supreme Court writ to Lawrie.
The next day, after tabling the Lawler report in parliament, NT Chief Minister Adam Giles asked himself the rhetorical question:
Do we refer it to the police for criminal investigation? I think there is a high chance of doing that.
Four days later Kezia Purick, Speaker of the Legislative Assembly told the ABC that the Government could move a motion to refer the former lands minister [McCarthy] and former treasurer [Lawrie] to the Privileges Committee.
The actions that can result from such a committee is it could be an apology is required by the members to the Parliament, a written apology, or all through a whole range of penalties right up to jail terms, recommending a jail term to the Parliament.
One week later Lawrie filed her writ in the NT Supreme Court.
No police investigation or referral to the NT parliamentary Privileges Committee have been made to date.
When Lawrie’s application came before Justice Stephen Southwood for hearing on 27 January 2015 local barrister Tony Young appeared for Delia Lawrie. Michael Maurice QC and David McClure of the Sydney bar represented Commissioner John Lawler.
The first day of the hearing didn’t go well for Lawrie’s team. The Northern Myth has seen the transcript of proceedings that show the following exchange between Justice Southwood and Tony Young.
HIS HONOUR: Well, it also has the effect of extending these proceedings and exposing a number of the witnesses to quite serious cross-examination – – –
MR YOUNG: It does, your Honour.
HIS HONOUR: Mr Young, with potentially quite serious factual findings open at the end of the day.
MR YOUNG: Yes, your Honour.
HIS HONOUR: But nonetheless you’re proceeding.
MR YOUNG: They’re my instructions, your Honour.
HIS HONOUR: Okay, well, over to you.
MR YOUNG: Your Honour, there has been a late flurry of affidavits and these have been a further affidavit from Mr Wyvill and a further affidavit from Ms Spurr.
After a break to allow the defence time to consider the ‘late flurry’ of affidavits Young told the court:
MR YOUNG: Your Honour, during the adjournment I sought further instructions about the conduct of this case on the plaintiff … I don’t propose to rely on the affidavits of Ms Spurr, Ms Lawrie and Mr Wyvill. I propose – the only evidence I propose to tender in the case is some of the documents from the agreed bundle.
The defence, having prepared their case on the basis that the affidavits of Lawrie, Spurr and Wyvill would be read into evidence and that they would then be available for cross-examination, was alarmed at this dramatic course of events and sought an adjournment to re-frame their response.
When the case resumed the following day matters soon turned to the letter of 15 April from Lawrie’s solicitors to Lawler advising of their withdrawal.
HIS HONOUR: Well, that letter is a bit problematic, isn’t it?
TONY YOUNG: Yes, well it’s problematic …
HIS HONOUR: It’s problematic because they’re not withdrawing at all. They still continue to provide assistance.
TONY YOUNG: They do.
HIS HONOUR: I mean Mr Wyvill is at the press conference in June or whatever. I mean what on earth is senior counsel doing at a press conference? But anyway, he’s there to deal with the matter, presumably still continuing that pro bono.
And later this comment.
HIS HONOUR: You see the problem with this case is really you’ve got lawyers fiddling about, Mr Young, in another profession. Advisers to Ministers are professional and capable people and these sorts of matters should have been left to those people, and the matter looked at on Mr Wyvill’s behalf …
In relation to a document that Young sought to tender as evidence, which tender the defence sought to oppose, the following exchange concerned Wyvill’s availability for cross-examination.
HIS HONOUR: If he’s made available for cross-examination then I think it goes in, but he ought to be made available to be cross-examined in relation to it.
TONY YOUNG: As your Honour pleases.
HIS HONOUR: So he will be made available, will he?
TONY YOUNG: No, he won’t your Honour.
David McLure for Lawler conducted a forensic analysis of the evidence, noting on several occasions that Lawrie, Spurr and Wyvill had not been made available to give evidence or be cross-examined on that evidence. McLure submitted that, while Lawrie and her team had initially engaged willingly with the inquiry, that had changed following the development of the strategy outlined in Wyvill’s email of 31 March and of which the letter to Lawler of 15 April 2014 was an apparent refinement.
Of that letter, McLure submitted that.
MR MCLURE: … Now, your Honour is entitled to be dismayed by this letter. The assertion in the letter that Ms Lawrie and Mr McCarthy had exhausted their ability to access pro bono legal assistance from Ms Spurr and Mr Wyvill was clearly untrue and in sorrow rather than anger we regret to submit must have been known to be untrue by Ms Spurr and Mr Wyvill, and of course by Ms Lawrie and Mr McCarthy. The significance of that is this – – –
HIS HONOUR: You say it constitutes a deliberate lie made to the commission.
MR MCLURE: We do urge that submission upon you …[t]he reason why it’s significant to decide whether or not this was false and known to be false by those associated with preparing and deploying this letter is because legal practitioners of this experience would not engage in conduct of this kind by mistake. They would not engage in it for no good reason. There had to be an explanation for it. And what was it? It demonstrates the acuity in the minds of Mr Wyvill, Ms Spurr, Ms Lawrie and Mr McCarthy of the strategy to ignore and disengage from the commission.
Referring to an email exchange between Lawrie’s chief-of-staff Gleeson and Wyvill on 19 May 2014, in which Gleeson sought Wyvill’s advice about a proposed response to comments made by Chief Minister Giles in the Assembly and that might warrant a letter of complaint to Commissioner Lawler, McLure told the Court:
MCLURE: … Mr Wyvill counselled against corresponding with the Commissioner. He said in the third line:
“I would prefer adopt the position that this process never had any independence from the beginning. They picked Lawler because they knew he would do what he was asked to do and this just confirms that this whole process was a set up”
Importantly he goes on to say:
“Writing to Lawler as you propose tends to suggest that he has independence to be influenced. What do you think.”
And quite incredibly, the inference from the last sentence in that first paragraph seems to be − when it says ‘they picked Lawler’ − they being of course the CLP Government. Because they knew what he was asked. So that seems to be − can only be a suggestion that members of the CLP government picked Mr Lawler and told him what they wanted to find in this inquiry. It’s an allegation of serious corruption that cannot have seriously been believed and there was of course absolutely no evidence to justify it.
But what was being counselled was a political strategy to make that incredibly serious and completely baseless allegation.
On the penultimate day of the hearing, McLure made the following submissions in closing.
Your Honour, the remarkable thing about − with the revelation of all of this background material is that this is material that Commissioner Lawler would never had access to but for the forensic decisions that were made in the course of this litigation by Ms Lawrie swearing in an affidavit to what she believed and by her legal representatives filing affidavits. That led to ultimately a hearing before Kelly J and then later before your Honour where orders were made for the inspection of what otherwise would have been privileged material.
Were it not for the revelation of that material your Honour would have been presented with an entirely different case. Those facts and that situation is known to Ms Lawrie right now and it’s known to Ms Spurr and it’s known to Mr Wyvill. And no doubt forensic decisions have been made and were made on Tuesday when your Honour was told, but none of those people would expose themselves to cross-examination to explain how it is that while one position was adopted publicly and one position was adopted in the way that this case has been prosecuted but yet what otherwise would have been privileged documents which we might otherwise never have seen, showed something completely different. So when your Honour comes to make findings of fact, my submission is your Honour could be comfortably satisfied taking into account the principles in Briginshaw that there was a conscious, deliberate, dishonest strategy to avoid engaging with the Commissioner in order to be able to come to this course and falsely complain that Ms Lawrie had been denied procedural fairness.
In response to McLure’s submission that the statements in the letter of 15 April were ‘clearly untrue’, Tony Young made the following submission on the last day of the trial.
MR YOUNG: … Now that letter of 15 April largely reflected the fact that − from Ms Spurr, largely reflected the fact that her role and that of Mr Wyvill in the inquiry was complete. The defendant’s information gathering phase was complete. We know that, your Honour, from his description of the phases that he went through. The sentence suggesting that her clients had exhausted their ability to access pro bono assistance was strictly speaking, wrong. Mr Wyvill continued to provide advice in the background.
Justice Southwood has reserved his decision.