As a case study in the flawed reporting of The Australian on the union slush fund matter, it is hard to beat the work of Chris Merritt, the paper’s legal affairs editor. Merritt specialises in arguing the same point (that the Australian Workers Union Workplace Reform Association might have been a trade union) without ever proving his point.

This is typical of the media politics of smear, dealing in speculation and misrepresentation, rather than hard facts.

My interest in Merritt’s work originated from one of fellow Australian reporter Hedley Thomas’ allegations against Julia Gillard, concerning her legal advice in 1992 for the establishment of the AWU-WRA. In August, Thomas wrote that if the Western Australian government had known the AWU-WRA was designed “to help in the election of union officials, it would not have been registered”.

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“It would not have been eligible,” he argued, “under the legislation that governed such associations.” Strangely, for a so-called investigative journalist, Thomas provided no corroborating material for this assertion. No legal opinion. No extracts from the WA legislation. No departmental advice.

I thought his claim looked suspect, especially given the AWU-WRA had been successfully registered for a range of workplace functions, and the Western Australian Associations Incorporation Act 1987 allows associations to be created for “political purposes”. So I made further inquiries.

When I asked the Associations and Charities Branch of the WA Department of Commerce about the registration of associations engaged in fundraising for union elections, I was told “there should not be a prohibition on that”. I also asked if this was a valid opinion going back to 1992, thereby allowing for subsequent legislative amendments. The officials answered “yes”. Not for the first or last time, Thomas was wrong in his claim against Gillard.

Merritt has now written three defences of Thomas’ position (on September 3, November 30 and December 7), adopting a curious style of reasoning. He has not sought to address directly the question of the registration of associations engaged in fundraising for union elections. Rather, he has argued a different point: that if the AWU-WRA was, in fact, a trade union, it could not have been registered under the WA laws as they stood in 1992.

How is this little exercise going? In his “Prejudice” column in The Australian last Friday, Merritt wrote of the AWU-WRA as follows:

“So was it a union? Gillard says she wrote to the WA Corporate Affairs Commission arguing that it was not a union. And if the normal dictionary definition is applied, it clearly was not.”

No joy there for the prosecution. So Merritt delved back into the definition of a union applying in the WA Trade Unions Act 1902.

This is where The Oz‘s pursuit of the Prime Minister now rests: that as a privately-employed lawyer 20 years ago, Gillard gave inaccurate advice to a WA authority concerning the definition of a trade union outlined in state law 110 years ago. This is no different to the Obama Birthers in the US: the making of loopy allegations on matters of ancient history, which no normal person in the community would regard as credible.

The purpose of the Trade Unions Act was to provide for the registration and regulation of unions. As the AWU-WRA was not so registered, one could argue, by definition, it was not a trade union. Nonetheless, let’s entertain Merritt’s thesis and examine the full definitional clause in the 1902 legislation:

“Trade union shall mean any combination, whether temporary or permanent, for regulating the relations between workmen and employers, or between workmen or workmen, or employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, whether such combination would or would not, if this Act had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade.”

Merritt is perhaps the only person in the country who thinks this arcane language causes a problem for Gillard. It may not have tripped up Edmund Barton, Chris Watson or Alfred Deakin but 110 years later, according to Merritt, it has the current PM on the run.

There is no end to Merritt’s sophistry, arguing on Friday that as the AWU-WRA was committed to “a more equitable distribution of wealth” it might be regarded, according to the 1902 statute, as a trade union. By this logic, the Australian Tax Office and Centrelink, with their role in the redistribution of income in Australia’s tax-transfer system, are actually trade unions.

Not surprisingly, the relevant WA authorities in 1992 had no interest in such nonsense and registered the AWU-WRA as an incorporated association. It was not a trade union.

Surely now The Australian will end this train-wreck of a campaign. No wrong-doing has been proven against Gillard, not 20 years ago, not at any time since. The only wrongness on display has been the mistake-ridden reporting of Hedley Thomas and Chris Merritt.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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