Everybody knows Labor in Power, but the
companion series, The Liberals, is ignored.

Perhaps it’s time to dig out the interview
with Peter Costello where he talks to Pru Goward about the dumping of John
Hewson, about how he took a lead in organising the ticket with Alexander Downer
– and how he put a call in to John Howard to say his time had passed and that he
couldn’t support him for the leadership.

That was May 1994. It must have still been
fresh in December of that year. Does it still play in the Prime Minister’s mind
from time to time?

“There were lots of discussions at that
time, including one in which Mr McLachlan was present, that did not involve the
conclusion of a deal”, the Prime Minister said yesterday.
Peter Costello, of course, differs in his recollection.

What has to be agreed on was that this was
John Howard’s last throw.

There’s an interesting lawyerly debate going
on about the use of language in the “deal or no deal” debate. Some observers see this all as yet another
example of John Howard’s cunning, of the cleverness of the way he uses language
– like the way in which he turned “trust” at the 2004 poll.

The debate centres on the word
“undertaking”. An undertaking made in court is enforceable under the law of
contempt – but to non-lawyers, an undertaking is often merely the flagging of
an intention. Did Howard think that Costello would
interpret the word in a legalistic sense – and know that voters would ignore the
formal meaning?

It doesn’t protect the Prime Minister – yet
he continues to indulge in lawyerly obfuscation. He says:

The leadership
of the Liberal Party is determined by the more than 100 men and women who make
up the Parliamentary Liberal Party. The leadership of the Liberal Party is not
determined by John Howard or Peter Costello or indeed any other individual. The
leadership of the Liberal Party is in the hands of the men and women who
comprise the Federal Parliamentary Liberal Party.

That’s the gift of the leadership. His
commitment was about withdrawing from the leadership.

Outside Kirribilli House this morning the
Prime Minister said:

The situation is
very simply that that meeting in 1994 was one of many. Nothing was concluded at
that meeting. The best evidence of that is that for weeks afterwards there was
speculation that Mr Costello would run for the leadership, and I vividly
remember having lunch with him between Christmas and the New Year of 1994 and
one of the things he said to me during that lunch was that he still reserved
the right to run.

The PM continues to insist that there was no deal. Yet m’learned
friends would say that any high school legal studies student knows that
for a deal – a contract – to exist there must be an offer and an
acceptance. An offer remains in force until it is withdrawn or
rejected. It can stand for a long time. It can be accepted by actions
rather than words. Howard’s offer on December 5 amounted to a statement
“If you stand aside, I promise to retire after one and a half terms”.

Today’s statement reinforces to the Costello version. At the time of
the lunch, Costello was still considering his position. His
“reservation” of his right to stand was neither an acceptance nor a
rejection. But when he did not stand, that was acceptance by actions.

The deal, the contract, crystallised.

Howard should have honoured his deal. The lawyers have some Latin
for it. Pacta sunt servanda. Agreements must be respected. They’ll tell
you that it is the basis of all contract law back to Roman civil law.

If Howard wants to go back on his word, he can. But he will wear the opprobrium as an untrustworthy deal breaker.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey