The true story of Cash’s union raids

The AWU raids re­veal the strange nexus be­tween the Turn­bull gov­ern­ment, the fed­eral po­lice, The Aus­tralian news­pa­per and the new unions com­mis­sion.

The Saturday Paper - - Front Page - By Mike Sec­combe.

Ben Davis, Vic­to­rian branch sec­re­tary of the Aus­tralian Work­ers’ Union, was in the of­fices of the union’s lawyers when the first phone call came through at 4.22pm on Tues­day last week.

As­sis­tant sec­re­tary Liam O’Brien was call­ing from the union of­fice to ask if Davis had any idea why a large posse of me­dia had be­gun set­ting up out­side.

Davis didn’t know. But three min­utes later, he found out. His phone rang again, and this time it was Nick En­right, sec­ond-in-charge at the gov­ern­ment’s newly es­tab­lished Reg­is­tered Or­gan­i­sa­tions Com­mis­sion (ROC), alert­ing him to the fact that the po­lice were about to raid the union.

About the same time, in Syd­ney, word reached AWU as­sis­tant na­tional sec­re­tary Misha Zelin­sky, up in the union’s 10th-floor Sus­sex Street of­fice, that a me­dia pack had gath­ered in the street be­low. He sent some­one to find out what they were do­ing. They were there for the raid.

The as­sem­bled tele­vi­sion crews and other me­dia were granted about half an hour to set up. Then the Aus­tralian Fed­eral Po­lice, along with of­fi­cers of the ROC and state po­lice, ar­rived in force, in both Syd­ney and Melbourne, seek­ing doc­u­ments re­lat­ing to a num­ber of do­na­tions made by the union more than a decade ago, the largest of them $100,000 to the ac­tivist or­gan­i­sa­tion GetUp!

In Can­berra, in the of­fice of Em­ploy­ment Min­is­ter Michaelia Cash,

they watched events un­fold on TV. The ground­work for this mo­ment had been laid over a pe­riod of sev­eral months, and that Tues­day af­ter­noon it looked like ev­ery­thing was go­ing to plan.

The fact that the mat­ter be­ing in­ves­ti­gated was an­cient, triv­ial and con­tested was scarcely rel­e­vant. The names in­volved made the story sig­nif­i­cant: Op­po­si­tion Leader Bill Shorten, the pow­er­ful union he used to lead, and the left-wing ad­vo­cacy group that has made an en­emy of the gov­ern­ment, GetUp! Above all, the vi­su­als were strong. The size and drama of the raids made it look like big news, even if it wasn’t. For a brief while, they served as a happy dis­trac­tion from the gov­ern­ment’s many woes.

This sat­is­fac­tion at the course of me­dia events lasted barely a day, though. On Wed­nes­day, in a se­nate es­ti­mates com­mit­tee hear­ing, Cash de­nied five times that she or her staff had any involvement in tip­ping off the me­dia. This was not true. In fact her me­dia ad­viser, David De Garis, had done so, only con­fess­ing af­ter he was outed in an ar­ti­cle by Buz­zFeed. De Garis re­signed, but main­tained that he had only heard of the raids from some in the me­dia, and passed the in­tel­li­gence on to oth­ers. Cash claimed not only that she knew noth­ing of De Garis’s tipoffs, but had no ad­vance knowl­edge of the raids.

Sud­denly, the fo­cus of all in­ter­est shifted. The ques­tion now was not what the raids might find, but who leaked news of them and who knew about it. La­bor was sug­gest­ing not only that Cash was ly­ing about the ex­tent of her knowl­edge, but that the prime min­is­ter him­self was im­pli­cated – “up to his neck” in the cover-up, as Shorten said in ques­tion time. The pow­er­ful cross­bench se­na­tor Nick Xenophon, whose vote was vi­tal to the es­tab­lish­ment of the ROC only six months ear­lier, was lead­ing calls for an in­de­pen­dent inquiry into the stunt.

In the cir­cus, when some­thing un­fore­seen hap­pens, when the trapeze artist falls or the lion tamer is mauled, they send in the clowns to dis­tract the crowd. Within 48 hours of the raids on the AWU of­fices, the gov­ern­ment an­nounced there would be an in­ves­ti­ga­tion of the leak. Not an in­de­pen­dent one, though: one con­ducted by the fed­eral po­lice them­selves.

Talk about send­ing in the clowns. As a for­mer edi­tor of The Can­berra Times, Jack Water­ford, noted in a swinge­ing anal­y­sis of the af­fair: “The sil­li­est joke in the Michaelia Cash leak­ing af­fair is the idea that the Aus­tralian Fed­eral Po­lice should in­ves­ti­gate how in­for­ma­tion about its raids on Aus­tralian Work­ers’ Union of­fices found its way to the me­dia 30 min­utes or more be­fore the war­rants were ex­e­cuted. Tip­ping off se­lected jour­nal­ists in ad­vance of a big op­er­a­tion is a key part of the AFP’s modus operandi.”

It was “by no means clear” that the AFP it­self was not the leak­ing party, Water­ford wrote.

Of course, there are many pos­si­ble sources of the orig­i­nal leak. There were state po­lice in­volved, and scores of peo­ple in the ROC, the Fair Work Com­mis­sion, the min­is­ter’s of­fice and depart­ment, and the fed­eral po­lice them­selves.

As Water­ford noted, even if the

AFP were not the source of the leak, the chances that they would em­bar­rass the gov­ern­ment by find­ing the guilty party were re­mote. Hav­ing watched closely for 38 years, since the found­ing of the force, Water­ford could think of only one case that caused “any prob­lems or em­bar­rass­ment to gov­ern­ment”. That sole in­stance of an “ex­haus­tive and com­pletely pro­fes­sional” in­ves­ti­ga­tion – the pur­suit of for­mer speaker Peter Slip­per for al­legedly rort­ing his ex­penses – failed to get a con­vic­tion. In all other po­lit­i­cal cases, calls by op­po­si­tions for in­ves­ti­ga­tions into leaks by min­is­ters, staffers or gov­ern­ment mates of var­i­ous kinds went nowhere.

The AFP, for its part, staunchly de­fended it­self against at­tacks that had not been made. Com­mis­sioner An­drew Colvin put out a me­dia state­ment on Thurs­day, two days af­ter the AWU raids and the day be­fore Water­ford’s piece, com­plain­ing: “The AFP has this week been the sub­ject of com­men­tary and in­nu­endo re­gard­ing its in­de­pen­dence and the abil­ity of AFP mem­bers to carry out their work ob­jec­tively and with­out po­lit­i­cal in­ter­fer­ence.”

He went on to as­sert that the force “un­der­takes its ac­tiv­i­ties with­out fear or favour. The AFP re­jects in the strong­est terms any sug­ges­tion to the con­trary. The AFP makes all its oper­a­tional de­ci­sions in­de­pen­dently, based on ex­pe­ri­ence, oper­a­tional pri­or­i­ties and the law.”

On the face of it, the state­ment seemed like a slap-down of crit­ics. But within op­po­si­tion ranks, some read it dif­fer­ently. As one noted pri­vately, it was re­ally more of a plea to La­bor should it win the next elec­tion.

To­wards the bot­tom of the state­ment, Colvin said: “The AFP has obli­ga­tions to as­sist a wide range of other Com­mon­wealth agen­cies in their ac­tiv­i­ties, in­clud­ing the Reg­is­tered Or­gan­i­sa­tions Com­mis­sion. The AFP had no oper­a­tional rea­son to de­cline to ex­e­cute a search war­rant that was au­tho­rised by a mag­is­trate.”

That is to say, they were only do­ing what was re­quired of them.

The trail on the AWU raids leads back to Au­gust, and re­port­ing in the gov­ern­ment’s pre­ferred me­dia out­let, The Aus­tralian, ex­am­in­ing the fund­ing and po­lit­i­cal connections of GetUp!

“Bill Shorten was a big union donor to GetUp! when it was es­tab­lished, giv­ing about $100,000, pos­si­bly more, to the left-lean­ing ac­tivist group,” the story, by as­so­ciate edi­tor Brad Nor­ing­ton, be­gan.

“The rev­e­la­tion, con­firmed for the first time to The Week­end Aus­tralian, fol­lows the fed­eral La­bor leader’s per­sis­tent re­fusal to make any com­ment over what sup­port he pro­vided to GetUp! when he was in charge of the Aus­tralian Work­ers Union.”

In fact, the union’s sup­port of GetUp! was not a se­cret. Two do­na­tions, of $50,000 each, were de­clared by the AWU to the Aus­tralian Elec­toral Com­mis­sion on De­cem­ber 20, 2006 and Jan­uary 19, 2007.

That’s not to say there was any­thing wrong with the story, or a se­ries of other sto­ries by the same au­thor. They pro­vided a de­tailed pic­ture of the re­la­tion­ships be­tween GetUp!, the unions and La­bor.

They also pro­vided a pre­text, how­ever, for Min­is­ter Cash to re­fer the mat­ter to the ROC, and for the com­mis­sion to be­gin ask­ing ques­tions of the union.

“So ROC wrote to us in Au­gust, cit­ing The Aus­tralian, and ask­ing that we hand over doc­u­ments,” the union’s Vic­to­rian sec­re­tary, Ben Davis, says. “We, of course, said no.”

At that stage, there was no for­mal in­ves­ti­ga­tion, and the union was damned if it was go­ing to vol­un­teer in­for­ma­tion to an or­gan­i­sa­tion it saw as hav­ing been set up by an anti-union gov­ern­ment to pur­sue an anti-union agenda, on the ba­sis of sto­ries in an anti-union news­pa­per.

The stand-off lasted un­til Fri­day two weeks ago, when the ROC wrote to the AWU, say­ing it was start­ing a for­mal in­ves­ti­ga­tion.

“We were ex­pect­ing – and didn’t get – a no­tice to pro­duce [doc­u­ments]. That’s what they al­ways do. They did it at TURC [the Trade Unions Royal Com­mis­sion], they’ve done it at ROC be­fore on other mat­ters,” Davis says.

“What I un­der­stand ac­tu­ally hap­pened was on Tues­day morn­ing at 9.40am the ROC and AFP went to the fed­eral mag­is­trates court to get two search war­rants, one for na­tional, one for Melbourne. And at 4.20 they sought to serve those war­rants.”

Sub­se­quently the union ob­tained an in­junc­tion to pre­vent the ROC from ac­cess­ing the doc­u­ments the cops seized.

The deeper you look into the mat­ter, the more pe­cu­liar it be­comes.

The cen­tral is­sue is whether the AWU ex­ec­u­tive prop­erly signed off on the do­na­tions, and the gov­ern­ment’s hope is that the ev­i­dence will show Shorten gave away the money with­out proper ap­proval. The AWU is adamant it can prove that the do­na­tions were prop­erly ap­proved. It fur­ther in­sists the ev­i­dence was pro­vided to the royal com­mis­sion.

So why, if the union has proof that it acted cor­rectly, would it set about de­stroy­ing doc­u­ments, as claimed in the tipoff to the ROC? And why, if it were go­ing to do that, would it not have done it long ago, given it knew what the ROC was af­ter for at least a cou­ple of months? Why did the ROC’s Nick En­right give the union a heads-up just be­fore the raids? And why, if it has noth­ing to hide, is the union fight­ing the mat­ter through the courts?

The an­swers are elu­sive. On the last ques­tion, though, there is an ex­pla­na­tion. The union hopes, through the le­gal dis­cov­ery process, to learn more de­tail about the back­ground to last week’s stunt, specif­i­cally the re­la­tion­ship be­tween the gov­ern­ment, com­pli­ant me­dia, the ROC and po­lice. Daniel Wal­ton, na­tional sec­re­tary of the AWU, has promised to re­lease all doc­u­ments once the le­gal process is fin­ished.

The union reck­ons it has lit­tle to lose. As it points out, even if the ROC’s dark­est sus­pi­cions were con­firmed, and there was ab­so­lutely no ev­i­dence that Shorten cleared the do­na­tions with the AWU ex­ec­u­tive, or that the ex­ec­u­tive signed off on it, the max­i­mum penalty is an $11,000 fine

As Michael Bradley, man­ag­ing part­ner of Mar­que Lawyers, says: So what?

“You have to won­der why the fed­eral po­lice were called in at all, be­cause there’s no crime in­volved in this thing. It’s just that the com­mis­sion has been given this weird ju­ris­dic­tion to look into, among other things, any fail­ure by unions to com­ply with their own rules.

“They have this war­rant power, which they de­cided to use, [even though] the doc­u­ments had ap­par­ently been given to the royal com­mis­sion.

“To me it’s an­other mis­use of the fed­eral po­lice, both po­lit­i­cally and func­tion­ally. It’s just waste­ful. This is es­sen­tially the equiv­a­lent of a park­ing fine. It amounts to no more than a pro­ce­dural fail­ing or an over­sight by the union.”

Of course, the po­lit­i­cal stakes are much higher than the le­gal ones. If Shorten were found to have done the wrong thing, the gov­ern­ment and its as­so­ci­ated en­ti­ties in the me­dia would claim a ma­jor scan­dal.

But as things now stand, the story is all about the leak, not about the do­na­tion. Bill Shorten has rea­son to feel a lot more com­fort­able than Michaelia Cash or Mal­colm Turn­bull.

As to The Aus­tralian, where much of this story started and has run: just be­fore dead­line, the pa­per’s as­so­ciate edi­tor got in touch with a brief state­ment.

“In Au­gust, The Aus­tralian, act­ing on its own ac­cord, started its in­ves­ti­ga­tion into the his­tory, de­vel­op­ment, fund­ing and op­er­a­tions of GetUp!” the state­ment said. “Any sug­ges­tion that there was in­put or as­sis­tance from Min­is­ter Cash or her of­fice in re­search­ing ar­ti­cles that re­vealed the AWU’s do­na­tion to GetUp! in 2006 is false.”

As to the leak: per­haps this time it would be ad­van­ta­geous for a fed­eral po­lice

• inquiry to ac­tu­ally find some­thing.

The AFP ar­rives at the of­fices of the Vic­to­rian branch of the AWU in West Melbourne on Tues­day.

MIKE SEC­COMBE is The Satur­day Pa­per’s na­tional cor­re­spon­dent.

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