Buried on page 32 of the Fin Review of November 7, in the Legal Affairs section, I found quite a perceptive article by Hannah Low, a journo with legal qualifications and experience. Low’s piece, titled Commission critical of Gillard’s conduct at firm, goes to the heart of the controversy surrounding Julia Gillard’s legal work for the Australian Workers’ Union Workplace Reform Association when she was a partner at Slater & Gordon in the early 1990s.
I’ve reproduced it in full below (hoping I haven’t infringed any copyrights – I wouldn’t stand a chance against Ms Low and her paper!):
The lingering question around the involvement of former prime minister Julia Gillard in the Australian Workers Union slush fund saga is why she failed to take steps to protect her own professional reputation.
As a junior partner of plaintiff law firm Slater & Gordon in 1995, in was in Ms Gillard’s interests to keep meticulous file notes, clear retainers and written memos of her dealings with clients.
Yet, according to counsel assisting the Royal Commission into Trade Union Governance, Jeremy Stoljar, SC, the arrangements between Ms Gillard and her clients were “casual and haphazard, not precise and details [sic – I think she means ‘detailed’]”.
“Given all the circumstances,” he concludes, “it is difficult to escape the impression MS Gillard was more concerned with achieving a swift result for her client than in ensuring the substantive requirements had been properly satisfied.”
While far from suggesting any criminal conduct, the remarks are dancing for a commercial lawyer who makes a living from painstakingly poring over decrements and details.
The submissions made by Mr Stoljar suggest that, had Ms Gillard been more assertive in questioning the conduct of her lover, Bruce wilson, and AWU official Ralph Blewitt, the position would have been far clearer when the illegal nature of the slush fund came to light three years later. It has been recommended that both Mr Wilson and Mr Blewitt face criminal charges of fraud and conspiracy.
“If Ms Gillard or Slater & Gordon had insisted on even some of the substantive requirements for the incorporation being satisfied it would, if nothing else, have been more difficult for Mr wilson and Mr Blewitt to proceed as they did,” Mr Stoljar said. “At least, when the association and its activities came to light in 1995, the full story would have been clearer, better documented and thereby easier to resolve.”
And therein lies the puzzling question; why Ms Gillard would not have done everything in her power to protect her professional reputation and future.
The requirements for the legal profession now mandated by legislation are partly set up to safeguard the integrity of the profession, but equally to safeguard its members from vexatious claims by disgruntled clients.
Mr Stoljar said his starting point was to “endeavour to understand more precisely the scope of Ms Gillard’s retainer”. According to the former prime minister, her scope was to provide the advice on the incorporation of the association but it was clear from the other evidence it was broader than that; she also wrote to the commissioner of corporate affairs about the fund.
The legal work done on the slush fund was carved up on an unusual basis, with Ms Gillard taking responsibility for some areas while absolving herself of others.
This uncommon scenario was even more reason to have it recorded precisely in writing; if for nothing else than to prevent the client from suing if things went wrong down the track.
“It is, of course, possible for a solicitor and client to enter into retainer agreement pursuant to which the solicitor will be responsible for certain tasks and will otherwise disclaim responsibility for an others,” Mr Stoljar said. “In that event, however, one might expect that the retainer would be carefully documented so that both sides knew where they stood.”
In the case of the AWU slush fund, not only was there no written agreement but there was also no written record of instructions or file notes. Even the legal advice itself is nowhere to be found.
Just why not remains the big mystery in the former politician’s involvement in the scandal.
Yes, that’s right – we have a mystery! And mysteries are often accompanied by competing hypotheses offering explanations of events and behaviour, as people look at the available evidence, weigh it, and draw conclusions from it.
It’s a commonplace that everyone will have their own opinion on a controversial subject. But those of us interested in learning the truth about important subjects want to base our opinions on the truth of what actually happened, rather than leave these questions unsettled and open to controversy. For this, we need a way of sorting among the competing explanations and deciding which of them is the most plausible, given the evidence that exists.
As you may expect, deriving correct explanations for events is also a concern of intelligence agencies, which have the added difficulty of having to rely on patchy information, a lot of which comes via rather murky intelligence channels and often is provided by people whose motives for providing information must be held suspect – as the example of Curveball shows, sometimes informants give their handlers false information in order to encourage the handlers’ employers to act in the informants’ interests. Deriving correct explanations is also important for police officers, in order that they can ensure that the right people face appropriate charges for their actions.
Richards Heuer’s last job at the United State’s Central Intelligence Agency (CIA) was in the methodology unit of the Directorate of Intelligence’s political analysis office. The Directorate of Intelligence is the part of the CIA which interprets the information provided to it by the Directorate of Operations, and prepares reports on this intelligence for policymakers. Heuer had long been interested in how people are able to discover truth and form judgements about what they knew, and he used his time in the methodology unit to research the problems facing intelligence analysts, and innovating approaches and analytical tools which he hoped would help these analysts to derive correct conclusions about the intelligence that they analysed and on which they reported.
From his work, Heuer realized that one of the difficulties that intelligence analysts had was in evaluating the explanations that they derived in order to explain what they saw.
When working on difficult intelligence issues, analysts are, in effect, choosing among several alternative hypotheses. Which of several possible explanations is the correct one? Which of several possible outcomes is the most likely one? …
The way most analysts go about their business is to pick out what they suspect intuitively is the most likely answer, then look at the available information from the point of view of whether or not it supports this answer. If the evidence seems to support the favorite hypothesis, analysts pat themselves on the back (“See, I knew it all along!”) and look no further. If it does not, they either reject the evidence as misleading or develop another hypothesis and go through the same procedure again. Decision analysts call this a satisficing strategy … Satisficing means picking the first solution that seems satisfactory, rather than going through all the possibilities to identify the very best solution. There may be several seemingly satisfactory solutions, but there is only one best solution.
Chapter 4 discussed the weaknesses in this approach. The principal concern is that if analysts focus mainly on trying to confirm one hypothesis they think is probably true, they can easily be led astray by the fact that there is so much evidence to support their point of view. They fail to recognize that most of this evidence is also consistent with other explanations or conclusions, and that these other alternatives have not been refuted.
Simultaneous evaluation of multiple, competing hypotheses is very difficult to do. To retain three to five or even seven hypotheses in working memory and note how each item of information fits into each hypothesis is beyond the mental capabilities of most people. It takes far greater mental agility than listing evidence supporting a single hypothesis that was pre-judged as the most likely answer.
One of the tools that he developed in order to help analysts deal with these difficulties is called Analysis of Competing Hypotheses, or ACH for short. Heuer described ACH as:
… a tool to aid judgment on important issues requiring careful weighing of alternative explanations or conclusion. It helps an analyst make prescient intelligence analysis so difficult to achieve.
ACH is an eight-step procedure grounded in basic insights from cognitive psychology, decision analysis, and the scientific method. It is a surprisingly effective, proven process that helps analysts avoid common analytic pitfalls. Because of its thoroughness, it is particular appropriate for controversial issues when analysts want to leave an audit trail to show what they considered and how they arrived at their judgment.
The eight steps that Heuer referred to are:
- Identify the possible hypotheses to be considered. Use a group of analysts with different perspectives to brainstorm the possibilities.
- Make a list of significant evidence and arguments for and against each hypothesis.
- Prepare a matrix with hypotheses across the top and evidence down the side. Analyze the “diagnosticity” of the evidence and arguments – that is, identify which items are most helpful in judging the relative likelihood of the hypotheses.
- Refine the matrix. Reconsider the hypotheses and delete evidence and arguments that have no diagnostic value.
- Draw tentative conclusions about the relative likelihood of each hypothesis. Proceed by trying to disprove the hypotheses rather than prove them.
- Analyze how sensitive your conclusion is to a few critical items of evidence. Consider the consequences for your analysis if that evidence were wrong, misleading, or subject to a different interpretation.
- Report conclusions. Discuss the relative likelihood of all the hypotheses, not just the most likely one.
- Identify milestones for future observation that may indicate events are taking a different course than expected.
Over the coming weeks, I will apply each step of the process to the mystery of why Julia Gillard behaved the way that she did in relation to Bruce Wilson, Ralph Blewitt, and the establishing of the Australian Workers’ Union Workplace Relations Association. For the moment I myself haven’t made up my mind either way, and while I’ve read about it I’ve never before used ACH, so it will be an interesting exercise to see which explanations are supported by the evidence and which are not, and also, which evidence is the most diagnostic in helping us to reach a conclusion.