Dear members of the Tribunal,

Re: Charge against Robert Carr under Rule A.33

1. I have brought a charge against Robert Carr under Rule A.33 for bringing the Party into
disrepute. In this submission, I argue that this charge should not be dismissed as frivolous or
vexatious under Rule J.8(c)(i). Instead, the charge should proceed to a full hearing before the
Tribunal.

2. This submission is in four parts. Part A outlines the nature of the charge. Part B explains the
approach which I submit the Tribunal should take to applications to summarily dismiss appeals.
Part C explains why the charge is not frivolous or vexatious. Part D explains why, in fact, the
charge is reasonably arguable.

A. The Nature of the Charge

3. As a preliminary matter, I note that I have received a letter from Ms Ellyse Harding, dated 4
June 2018. This letter misconstrues the nature of the charge. This may be because it was written
before I was asked for submissions on the charge, and seems to be based on media reports of the
charge rather than the charge itself.

4. 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. Rather, my submission is 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 (CCP). For the reasons given below, there is a reasonably arguable view that this conduct
has brought the Party into disrepute, and I should be permitted to present it at a full hearing.

B. The Power to Dismiss Charges Summarily

5. Rule J.8(c)(i) provides:

The Internal Appeals Tribunal and Review Tribunal may dismiss proceedings at any
time if they consider that:
(i) The appeal is frivolous, vexatious or not in good faith;...

6. My submission is that the Tribunal should exercise this power sparingly, and only in the clearest
of cases, where the charge is not even reasonably arguable.

7. First, the purpose of Rule J is to provide members with a fair hearing in making complaints.
The power to summarily dismiss a matter without a hearing is analogous to a court’s power to
strike out an application. It should be exercised analogously - that is, only where the charge is
not even reasonably arguable.
 8. Second, as a practical matter, the Tribunal could hardly adopt any other course. At this early
stage of proceedings, neither side has had the opportunity to gather all the evidence it would
rely on at a full hearing, or to make submissions on the evidence the other side relies on.
Attempting to resolve the complex factual dispute on the basis of limited information and
without hearing either side’s full case is an invitation to error. Therefore the Tribunal should
only do where the charge is not arguable on any reasonable view of the Rules and facts. For the
reasons given below, this is not such a case.

C. The Charge Is Not Frivolous or Vexatious

9. First, the charge is not frivolous. On both its ordinary and technical legal meaning, a matter is
only ‘frivolous’ if it lacks any serious purpose or value. This matter could hardly be more serious
- that a former NSW Premier and Commonwealth Foreign Minister appears to have improperly
used his political connections for the benefit of a private donor, who is reputed to have some
distinctly dubious connections, and thus damaged the Party’s reputation. As explained in Part D,
it has already been discussed at some length in the news media, and is a matter of significant
public interest.

10. Second, the charge is not vexatious. On both its ordinary and technical legal meaning, a matter
is only ‘vexatious’ if it is brought to cause annoyance and frustration rather than in good faith. I
have been a rank-and-file member of the Party for more than two decades, volunteering on a
number of state and federal election campaigns. I brought this charge because removing the
appearance of improper conduct within the Party matters to me. The Party and its leaders
should be above suspicion. Moreover, for the reasons given in Part D, I honestly believe that
this charge is at least reasonably arguable.

11. Ms Harding’s letter to me misconstrues the nature of my comments to the media. The media
have quoted me as saying that ‘Sam [Dastyari] paid the price and so should Bob [Carr] - any
party members who work for overseas interests need to resign’. I was not saying that Mr Carr is
knowingly paid by overseas interests for any nefarious purpose. I was saying that Mr Carr should
not be involved in the Party while benefiting (albeit indirectly) from a donor with reputed
connections to the authoritarian CCP, because of the apparent conflict of interest. The Party’s
leaders should not only avoid improper conduct, but the appearance of impropriety. Seeking to
enforce that interpretation of the Rules is neither frivolous or vexatious.

D. The Charge is Reasonably Arguable

12. Rule A.33(a) provides:

13. My submission is that it is reasonably arguable that ‘bringing the Party into disrepute’ includes
conduct which creates the appearance of impropriety, and which lowers the Party’s reputation.
On this interpretation, it is not necessary that the underlying conduct itself be illegal or
improper.
14. 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.

15. 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.

16. 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.

17. 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.

18. Further, my submission is that it is reasonably arguable that Mr Carr’s conduct has in fact created
the appearance of impropriety, and lowered the Party’s reputation.

19. I anticipate that many of the following facts will not be in dispute.
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).

20. First, quite apart from any alleged CCP connection, a reasonable observer might well conclude
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. At the very least, a reasonable observer might
suspect that Mr Carr sought to have these questions asked for Mr Huang’s benefit, and thus that
Mr Carr has engaged in unregistered lobbying of Ms Keneally on behalf of Mr Huang. This
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 (see, eg, ABC News, 16
December 2016; ABC News, 1 June 2017).

21. Second, the potential connection to an authoritarian foreign government furthers this
appearance of impropriety. These allegations come at a time when there is global concern about
foreign interference in domestic elections (CNN, 16 May 2018), and when the Australian media
have alleged CCP influence in Australian domestic politics - specifically, through Mr Huang
(Four Corners, 5 June 2017; ABC News, 29 May 2018).

22. For the reasons given in Part B, all that is necessary to proceed to a full hearing is that the
charge be reasonably arguable. For the reasons given above, this charge is.

Conclusion
23. This Party and its leaders should be above suspicion. Mr Carr’s conduct at least arguably has
created appearance of impropriety that has damaged the Party’s reputation. Accordingly, my
charge against him is not frivolous or vexatious, but reasonably arguable. It should proceed to a
full hearing.

24. I wish to stress that the full picture of what Mr Carr did and why is still emerging. That factual
ambiguity is not a reason to dismiss the charge against him. It is a reason to continue with these
proceedings, so that the Tribunal can discover the truth. I anticipate that Mr Carr’s cooperation
with the Tribunal, or the adverse inferences that the Tribunal might draw if he chooses not to
cooperate, will greatly assist in this respect.

25. 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,