Turnbull Government minister Michaelia Cash has lost her Federal Court bid to block access to “key documents” relating to raids by the Australian Federal Police (AFP) on offices of the Australian Workers’ Union (AWU).
The Western Australian senator’s fight to prevent the release of the documents – which union lawyers believe contain communications between her office and police in the lead-up to the raids – has heightened suspicions about the operations being politically motivated.
In October 2017, the AFP conducted raids in Melbourne and Sydney on behalf of the Registered Organisations Commission (ROC), the independent regulator of unions and employer associations.
The investigation relates to whether donations to GetUp and federal Labor campaigns in 2006 were authorised under union rules. The payments were made when opposition leader Bill Shorten was the union’s secretary.
The ROC confirmed in a statement that the raids were launched over concerns about evidence being “concealed or destroyed”.
The union applied to the Federal Court for the raids to be declared invalid, and for items seized to be held from the ROC. It also sought access to documents relating to the raids, with a view to establishing that they were politically motivated.
Suspected political motivation
The Labor party questioned the politicised nature of the raid, noting that a full force of media organisations attended the AWU offices to witness the operation. Labor front bencher Anthony Albanese accused Cash’s office of leaking details of the pending raids to the media. He describing the conduct as “an extraordinary intervention in the process.”
Ms Cash initially denied that any leak originated from her office, telling the Senate Estimates Committee she was unaware of the raids until they unfolded on television.
It was later reported that journalists from two news unnamed outlets had been tipped-off by Cash’s office an hour before the raids. It was later confirmed that Cash’s staff indeed advised the media of the pending raids.
Ms Cash’s senior media officer, David De Garis, admitted in the senate that he leaked the information. Mr De Garis later resigned.
Federal Court ruling
Senator Cash sought to prevent the AWU from issuing subpoenas relating to the raids and subsequent political fallout, arguing that only the period up to the ROC’s decision to formally investigate AWU donations to GetUp were relevant.
The AWU contended that the subsequent communications, from the date of the raids on 24 October until 31 October, could reveal the underlying agenda behind the investigation.
The Federal Court broadly agreed with the AWU’s arguments, making orders for the release of a range of documents, including those recording communications:
- Between Minister Cash, her staff and the ROC, including those documents recording phone conversations with the staff of the ROC;
- Between Minister Cash, her staff and the Fair Work Ombudsman;
- Between the FWO, the media and the AFP;
- Between FWO’s Media Director Mark Lee and Minister Cash, including personal employment records regarding his job offer in the Minister’s office; and
- Between De Garis and the ROC and the FWO.
Federal Court Justice Mordecai Bromberg found that the union had a reasonable basis for seeking the documents to determine if the investigation and raids were for carried out for an “improper political purpose”.
The judge also rejected bids to set aside the AWU’s subpoenas regarding Mr De Garis, the Fair Work Ombudsman and its media director Mark Lee – who are the suspected recipients of the leak.
His Honour found there was “a legitimate forensic purpose of seeking to show the existence of a close association between persons assisting the ROC and the minister and her office”.
Lack of accountability
The AWU’s lawyer told the media that “at every turn we have seen minister Cash, the ROC and others involved … seek to thwart scrutiny of their role in the disgraceful raids on the AWU by federal police”.
“It has taken an order from the court to force their hand,” he added. “The court’s orders mean that we are moving closer to establishing the truth behind this investigation and the police raid.”
Shadow employment minister, Brendan O’Connor, reiterated Labor’s call for Ms Cash to resign, describing the suspected referral as “an abuse of ministerial power”.
Many believe there should be greater separation between government and the ROC, finding it troubling the commission might initiate an investigation based on a complaint by the government against its opponent.