[Greens-Media] President of the Australian Bar Association says the free use of Kirribilli House for the Liberal party should have been disclosed

[Bennett, Ebony (Sen B. Brown)]

Sunday, 17 June 2007

President of the Australian Bar Association says the free use of
Kirribilli House for the Liberal party should have been disclosed

Greens Leader Bob Brown has released the opinion of senior barrister
Stephen Escourt QC on the Prime Minister's 'gift' of the use of
Kirribilli House to the Liberal party.

Senator Brown sought the opinion of Mr Escourt last Friday. Mr Escourt's
opinion is attached. Mr Escourt is currently President of the Australian
Bar Association, the national representative association of barristers
in Australia. 

"Mr Escourt's opinion, like that of barrister Bret Walker SC released by
the Labor party on 15 June, indicates that the Australian Electoral
Commission was mistaken in its findings last week. Prime Minister Howard
is required to disclose his gift of the use of Kirribilli House the
Electoral Commission. That there may have been failure to disclose the
use of Kirribilli House, contrary to the Electoral Act, in the past is
no excuse," Senator Brown said.

"I will furnish the Prime Minister and the Australian Electoral
Commission with Mr Escourt's opinion and ask the AEC to re-examine its
findings on this matter. I will also ask the AEC to release its earlier
opinion from the Solicitor-General," Senator Brown said.

Senator Brown will be available for comment on Mr Escourt's opinion at
the press gallery boxes later this evening between 5.30 - 6pm 

(Senator Brown's media advisor will ring the bell five minute before the
doorstop).

Further information: Ebony Bennett 0409 164 603




OPINION 
1. I am asked to advise as to whether the Prime Minister's act in making
Kirribilli House available without charge as a function venue for some
225 delegates and observers attending a Liberal Party Federal Council
meeting in June 2007 constitutes a "gift" within the meaning of the
Commonwealth Electoral Act 1918 ("the Act") 
2. Under the Act, s.287 "gift " means any "disposition of property" made
by a person to another person, otherwise than by will, being a
disposition made without consideration in money or money's worth or with
inadequate consideration, and includes the provision of a service (other
than volunteer labour) for no consideration or for inadequate
consideration. 
3. The Act s.287 provides that "disposition of property" 
				"means any conveyance, transfer,
assignment, settlement, delivery, payment or other alienation of
property, and includes: 

(a) the allotment of shares in a company; 
(b) the creation of a trust in property; 
				(c) the grant or creation of any lease,
mortgage, charge, servitude, licence, power, partnership or interest in
property; 
				(d) the release, discharge, surrender,
forfeiture or abandonment, at law or in equity, of any debt, contract or
chose in action, or of any interest in property 
				(e) the exercise by a person of a
general power of appointment of property in favour of any other person;
and 
				(f) any transaction entered into by any
person with intent thereby to diminish, directly or indirectly, the
value of the person's own property and to increase the value of the
property of any other person." 
[underlining added] 
4. A "licence" is a permission to do what is otherwise restricted or
prohibited. A licence to enter and be on land is a permission to do what
would otherwise be a trespass. 
5. A licence is a mere right to occupy land and, unlike a lease, does
not without more confer an interest in land. No question arises
therefore of a requirement to read the words of s287 (c) of the Act all
together so as to require a "licence" to involve some formal creation,
alienation or transfer of an interest in land. The subsection
distinguishes between leases and lesser rights such as licences and
powers. 
6. By allowing the Liberal Party to use Kirribilli House as a venue for
a function, without any consideration in money or money's worth, whether
that permission is viewed as a licence to Liberal Party officials or to
the delegates and observers attending the Federal Council meeting, the
Prime Minister made and the Liberal Party received, a "gift" within the
meaning and contemplation of the Act. 
7. I am instructed that it is uncontroversial that the commercial cost
of a suitable and equivalent alternate venue to Kirribilli House, able
to accommodate in excess of 200 guests, would exceed the minimum
disclosable value under the Act which, indexed in accordance with the
provisions of s.321A, is , I am told, currently $10,300. 
8. It follows, that in my opinion, the use of Kirribilli House in the
circumstances, must be characterised as a "gift" required to be
disclosed to the Australian Electoral Commission pursuant to the
provisions of the Act. 

Malthouse Chambers 
STEPHEN ESTCOURT 
Hobart 
17 June 2007 


--------------------------------------------------------------
Ebony Bennett
Media Adviser
Office of Greens Senator Bob Brown
Mobile: 0409 164 603
Ph: (02) 6277 3170
Fax: (02) 6277 3185
ebony.bennett at aph.gov.au