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[This edited version of the article has been prepared by Dr Robert N Moles]

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Justinian 18 April 2006 – Evan Whitton – “The Wink”

Law firms who helped draft Kevvy Andrews IR laws now ant to litigate them … How “the wink” works for cartellists and, in all likelihood, for Jackie Howard.

Is it impossible for lawyers to draft legislation so unambiguous and constitutionally sound that herps can’t find anything to argue about? Apparently so. The new jobs law put about by that nice Kevin Andrews (BA LLB Melb, LLM Monash) is said to be headed straight down the thirsty gullets of the courts, even though giant brains in outside law firms were hired to help draft it.

Now the Fin Review reports (April 8) that some of the same firms are soliciting for the business of litigating the laws. No one could possibly suspect that any little ambiguity was slipped in by design, but it might have looked better if Kevvie had statute-barred double dipping of this sort.

Great judicial moments (cont’d).

In 1996, Kenneth Biggins, John Elliott, and Peter Scanlon were tried in Melbourne on charges of theft of $66 million. Justice Frank Vincent wrongly concealed all the evidence (some 130 witnesses) against them, and declared them not guilty. The irrational double jeopardy rule prevented a re-trial.

In 2006, Flight-Lieutenant Malcolm Kendall-Smith – (Justinian March 6) was tried at Aldershot for “refusing to obey a lawful command” to make a third tour of Iraq. Judge-Advocate Jack Bayliss said all the evidence for him, i.e. that the war itself is unlawful and the Nuremberg Defence was unavailable, was irrelevant, and sent him down for eight months to encourage the others.

Meanwhile, all are agog to see whether, to encourage the others, one of the authors of that war, T. Blair, goes down in the cash for peerages fiddle (JustinianApril 3).

Organised crime is systematic criminal activity for money or power. By definition, cartellists are organised criminals, but it has taken 32 years for our politicians to grasp that simple fact, i.e. since section 45(2) of Lionel Murphy’s Trade Practices Act of 1974 made cartels unlawful. Legislation making it a criminal offence is on the way, but is yet to be brought down.

A reason for the sluggishness may appear in a fascinating chat by Jennifer O’Neill, a Commissioner at the Australian Competition and Consumer Commission, to a forum of lawyers laid on by the NSW Chamber of Commerce on March 7. This is her portrait of mid-level cartellists:

“They have nice teeth, good jobs, comfortable houses, their children might attend selective schools, they might be president of the local junior Rugby club and chair the P & C.”

How could you put such respectable organised crims at risk of anal rape? She described one way they do the bidness:

“Imagine you are the national sales manager for a company. You are sitting at a conference table, attending a side meeting organised to coincide with your industry association’s annual conference. The side meeting is a regular feature at the annual conference. Every year you meet with the sales managers for your employer’s four key competitors. You make ‘orderly marketing’ arrangements with your opposite numbers.”

The ACCC could probably just bug the table and put them away, but that might miss senior executives. Those even more toothily handsome lads and lasses may seek to insulate themselves from the crime by a technique of communication used at US General Electric: what Shakespeare called a “dropping eye” accompanied exhortations not to engage in price fixing.

John Brooks noted in Business Adventures (Gollancz, 1969) that William S. Ginn, a GE salesman, told Senator Estes (Coonskin) Kefauver (seen here) in 1961 that he first observed the technique in 1935, and that in 1948, when Robert Paxton, an upper-level GE executive, was giving the usual homily, Ginn broke in with: “I didn’t see you wink.”

Startled, Paxton replied sternly: “There was no wink. We mean it, and these are the orders.” Ginn ignored him because more senior executives did give him the nictate.

Jennifer O’Neill quoted an estimate that the operation of a cartel adds about 10 per cent to the price of a commodity. Every single person in Australia may thus be a victim of theft on a huge scale.

The ACCC has resorted to inducing cartellists to roll over in return for immunity, but that would probably be unnecessary if those eminent herps, Jackie, Petie and Philie, could grasp another simple fact: the rule against pattern evidence protects organised criminals.

Jackie is, or purports to be, Australia’s chief executive. The great V.J. Carroll noted (Fin Review, April 12) that any chief executive’s “overriding instructions would include that he / she be informed immediately of anything which might adversely affect the corporation’s public standing”.

Our standing started going downhill on Thursday, January 13, 2000 when the dogs started barking that the wheaties, contrary to Australia’s legal obligations to the United Nations and our customs laws, were giving aid and comfort, in the form of huge bribes, to a once and future enemy.

The dogs barked in vain, possibly because Jackie’s day is largely taken up with trudging grimly round the Harbour in a Rugby shirt, scrabbling for photo-ops with sporting celebs, and blathering away endlessly on the airwaves.

But when a steady drumbeat of 21 cables confirmed that Australia’s standing was well on the way to the outhouse, how could a functionary NOT have forced him to shut up, sit down, and read the documents?

It did not occur to O.K. Cole or his counsel assisting, J. Vincent (The Maltese Falcon III) Agius SC, to explore whether the GE technique was used in reverse, i.e. the functionary tells the chief executive, but doesn’t tell him.

But even if OK and the Falcon did, they would probably have got no more than a chorus of:
“There was no wink.”

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