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As the Federal Court prepares to make a ruling on the AWU raids, and it emerges Michaelia Cash refused to give a statement to the federal police over her office’s involvement, The Saturday Paper reviews the minister’s position to date.

By Mike Seccombe.

Cash not for comment

Michaelia Cash gave new meaning to the expression “in denial” this past week.

She not only denied, as she has done for some 18 months, any foreknowledge of dramatic police raids on the offices of the Australian Workers’ Union on October 24, 2017. She also denied evidence given to the senate this week by the Australian Federal Police that she had failed to provide a witness statement about the matter, and so hampered a criminal investigation.

She refused to address the court admissions by two of her former staffers that they, in concert with others, had tipped off journalists in advance of those raids. Instead, she questioned the accuracy of every media outlet that had reported those court proceedings.

She denied the need to correct the record in relation to past statements to parliament, now shown clearly to be wrong, insisting she had been consistent throughout the whole affair.

And she denied – under oath in the Federal Court– that political considerations had motivated her pursuit of an ancient, minor, potential breach of union rules by former AWU secretary now opposition leader Bill Shorten.

To understand how she got here, we need to go back 18 months.

The whole business was set in train by an article in The Australian newspaper on August 12, 2017, relating to a $100,000 donation made more than a decade earlier by the AWU, under Shorten, to the nascent progressive activist group GetUp!

The article, under the byline of Brad Norington, questioned whether the donation had received the proper, documented approval of the AWU national executive.

On the strength of that, Cash, who was then the minister for employment, wrote the first of two letters to the newly established Registered Organisations Commission, known as the ROC, suggesting they look into the issues raised.

The ROC was set up as an independent statutory body. That meant Minister Cash could refer matters to it, but could not direct it to do anything. It could make up its own mind whether to investigate any issue. Readers of The Australian might have been forgiven for thinking otherwise, however.

On August 16, just four days after his initial story raising questions about the circumstances of the AWU donation, Norington wrote a follow-up piece, declaring: “Bill Shorten will be investigated over a large donation of union funds he made to GetUp! when he was leader of the Australian Workers’ Union, following a referral to the Registered Organisations Commission by Employment Minister Michaelia Cash.”

It would have been a bold journalistic call to assume an independent body would begin an investigation simply on the basis of the minister making a referral. It was all the bolder because Norington’s story appeared before the referral had even been sent to the ROC.

As evidence before the Federal Court showed, Norington was twice prescient. Cash sent another referral to the ROC on the basis of another of his stories – this time about the AWU decision to give $25,000 of union funds to Shorten’s election campaign – and again Norington knew about the referral and predicted the ROC would act upon it before it was sent.

As predicted, the independent ROC decided to investigate.

On October 24, that investigation became spectacularly public when dozens of police carried out co-ordinated raids to execute search warrants on the AWU offices in Sydney and Melbourne.

Once again, the media – not just Norington this time, but lots of media, including all the television networks – were tipped off.

As reported in this paper shortly after the raids, the AWU’s Victorian branch secretary, Ben Davis, was fortuitously in the offices of the union’s lawyers when, at 4.22pm, he got a phone call from his assistant secretary, Liam O’Brien, asking if he had any idea why a large group of media had gathered outside.

He didn’t. But he found out three minutes later why they were there, when he got another call, this time from the ROC, alerting him that the police were about to raid the union.

As I wrote then: “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.”

It was very precisely choreographed. The media got about half-an-hour to set up before the Australian Federal Police, along with officers of the ROC and state police, arrived in force, simultaneously in both cities.

In Canberra, Cash and her staff watched it all happen on TV.

For the government, it looked at first like the stunt – for that, we know now, is what it was – had paid off. Via the optics and initial stories about the AWU raids, it looked like a telling blow had been landed in the government’s “Kill Bill” strategy, which had long sought to link the former AWU national secretary to union malfeasance.

The glow lasted about 28 hours. The day after the raids, before a senate estimates committee, Cash was questioned about how the media came to know about the raids in advance. Five times she aggressively denied she or anyone in her office had anything to do with it.

This was not true, and during the dinner break in estimates her media adviser, David De Garis, admitted to her that he had informed media. His confession came after he was outed as the source in a BuzzFeed article.

De Garis resigned but maintained he had only heard of the raids from some in the media and passed on the intelligence to others. Cash claimed not only that she knew nothing of De Garis’s tipoffs but that she had no advance knowledge of the raids at all. The first she knew of them, she maintains to this day, was when she saw them happening on TV.

Since then two things have kept this issue quietly alive: first, the AFP’s continued investigations into the leak; and, second, the AWU’s action in the Federal Court to quash the ROC investigation into its long-ago donations and get back the documents they believed were improperly taken in the raids.

Those separate processes have now combined into big trouble for Cash and for the government – in particular for then justice minister Michael Keenan.

First, to the police investigation.

Before senate estimates on Monday, the Federal Police expressed their frustration about the way their leak investigation, now ended, had been hampered by the government and the ROC.

Commissioner Andrew Colvin began by reaffirming his “grave concern” about the way the AWU raids were “inappropriately disclosed”.

The AFP, he said, had undertaken a thorough investigation of the leak and compiled “the strongest brief of evidence it could”, which was then referred to the Commonwealth Director of Public Prosecutions.

“In this case, the Commonwealth DPP determined that, despite our best efforts, the brief did not have sufficient prospects of success for them to prosecute,” he said.

As a result, no charges were laid.

Colvin lamented the fact that the AFP could not compel people to provide witness statements or indeed to assist at all in its inquiries.

Deputy Commissioner Leanne Close filled in some details for the committee. Investigators, she said, had sought witness statements from more than 60 people.

“Any cabinet ministers?” asked Labor senator Murray Watt.

Close: “Yes. We spoke to the offices of two cabinet ministers: Ministers Keenan and Cash.”

Watt: “So, you spoke to their offices, asking for the ministers to make a witness statement?”

Close: “Yes.”

Watt: “Did that occur?”

Close: “They both provided a statement in writing to the AFP.”

But, as she later elaborated, the letters the two cabinet ministers sent to the police did not amount to formal witness statements.

Each minister, Close said, had been asked at least twice to assist.

“We wanted to have the opportunity to speak to them both and see if they could provide information to support our unauthorised disclosure investigation.”

Watt: “But they declined your request and just sent you a letter?”

Close: “They sent us a letter.”

Cash’s co-operation extended only to referring the police to her previous evidence, given in earlier estimates hearings.

She continued to insist she had fully co-operated, and even had the chutzpah to demand an apology from Watt and other Labor figures who rightly said, on the basis of the AFP evidence, that she had not provided a witness statement.

Close told the committee eight people had declined to provide statements, including some former ministerial staffers, as well as current or former employees of the ROC.

Other than Cash and Keenan, though, we don’t yet know exactly who they are. As a Federal Court case relating to the raids is still running, said Close, “it is probably not appropriate for me to name names at this point, because some of the witnesses have been called and we know that that matter is part-heard from last week – it will continue on”.

That case presents the best chance of getting to the bottom of the matter, as Commissioner Colvin pointedly observed in his evidence to estimates.

“I understand from that [media] reporting that the court has used section 128 of the Evidence Act to require witnesses to give evidence and offer them protection against self-incrimination. This is not an option open to police in a criminal investigation,” he said.

Cash’s former media adviser, De Garis, struck such a deal, to receive protection from self-incrimination in return for evidence.

And what he said put the lie to the claim that he had merely heard of the impending AFP raids from some media sources, and passed the information to other media. According to his evidence, given last Wednesday, he was told about them by Cash’s then chief of staff, Ben Davies, several hours before they were to occur. De Garis then spoke with Michael Tetlow, media adviser to Keenan. Keenan, as justice minister, had portfolio responsibility for the federal police.

The two media advisers then “organised to disseminate this information to the media together”, De Garis told the court. He called print journalists while Tetlow called TV stations.

But how did Davies know the feds were about to raid the AWU offices? In evidence on Monday, he said he had been told by the then media adviser to the ROC, Mark Lee. Lee, incidentally, had been interviewed by Davies for a job in Cash’s office.

As to why there had been a decision to raid the AWU at all, given that up until that point they had been co-operating with the inquiry, Davies said Lee told him there had been a tipoff that the union might have been preparing to destroy documents. Lee did not inform him of the source of that information.

And so the damage spread, from Cash’s office, to Keenan’s, to the “independent” regulator, the ROC. This week, Lee and the executive director of the ROC, Chris Enright, who launched the investigation, are due to give evidence.

It is important to note that neither De Garis nor Davies has implicated Cash in the leak.

Cash, of course, denies involvement. As well as telling the court last week that she first learnt of the raid when she saw it on TV that afternoon, Cash also denied that there was any political consideration in her decision to refer the AWU matter to the ROC. It was of “no particular interest” to her that Shorten had been secretary of the AWU at the time, she said.

The fact that Shorten was named in the Norington story, she said, made no difference to her decision to refer the matter. She was simply going about the “discharge of my ministerial functions”.

Back in parliament, though, she shed the dispassionate mantle and became again the political animal. Her confrontation with Labor senator Doug Cameron – an old and bitter adversary – on Wednesday was particularly fiery.

Cameron opened proceedings by observing that almost $1 million had been spent “to deal with the cover-up in relation to your staff leaking details of the AWU raid by the federal police”.

“Don’t you think it’s about time you just came clean about this and saved the taxpayer any more unnecessary expenditure?” he said.

In response, Cash went straight on the attack.

“I gave evidence, under oath, in the Federal Court last Friday. That evidence is consistent with the evidence I gave for the last 15 months.

“What I would do, though, is say Mr Bill Shorten could potentially go under oath and tell the Australian people whether or not he had the appropriate authorisations to donate $100,000 to GetUp! – AWU members’ funds. But on top of that, $25,000 to his own election campaign. One has to wonder what is in the documents that the AFP have seized from the AWU, that they are fighting tooth and nail to ensure the commission and the Australian public never ever see them.”

Cash went on to justify the costs incurred, which actually total about $288,000 in her case, plus another $550,000 for the ROC, plus untallied costs for the police investigation, the DPP and the running of the Federal Court.

When it became Cameron’s turn again, he ratcheted up the rhetoric: “Minister, you’ve been humiliated. Your credibility has been shredded. The record clearly shows now that on almost 20 occasions you’ve denied involvement of your staff in relation to the leaking of the raid.”

Why, he asked, would she not correct the record now it was apparent what she had said was not true?

“Senator Cameron, I am assuming that you are referring to media reports of evidence that has been given in the court proceedings,” she said.

Well, she was not going to give a “running commentary” on those proceedings until she had seen a “certified transcript of the evidence”. She would “certainly not do it on the basis of news reports”.

So it went, at vast length, with Cameron asserting the inconvenient realities of the AFP evidence to estimates, the admissions made in the Federal Court, and the inconsistencies between those realities and Cash’s long-held position. Cash refused to accept those realities and repeatedly asserted that the person with real questions to answer was Bill Shorten.

In truth it generated a lot more heat than light. But Cash can be given credit for her toughness: she never deviated from her denials, never wilted before the onslaught and never lost her composure, even when Cameron accused her, on multiple occasions, of having perjured herself.

Icily, she invited him to “step outside and say that”.

And really, the florid rhetoric of her Labor opponents in parliament is not her biggest concern. That will be the measured judgement of Justice Bromberg of the Federal Court. Findings there take more than chutzpah to deny.

This article was first published in the print edition of The Saturday Paper on Feb 23, 2019 as "Cash not for comment". Subscribe here.

Mike Seccombe
is The Saturday Paper's national correspondent.