12 October 2019

Federal Court finds ROC acted illegally — and doesn’t clear Cash

The Federal Court has found that the Registered Organisations Commission’s high profile investigation of the AWU — which involved televised police raids searching for 10-year-old paperwork — was illegal because paperwork errors more than four years old are automatically forgiven by the law. The government, though, is claiming victory [$] because the claim of a political conspiracy was not upheld by the court.

That’s true — but only because of the difficulty of gathering evidence from a reluctant government agency, with a witness from the ROC who took an “overly protective approach” and gave implausible evidence, at least one witness from Ministers’ offices whose evidence was “likely … not truthful”, and a Minister who was herself possibly untruthful. There was no smoking gun, as ROC’s lawyer put it, but there is still good reason to believe the AWU’s claim was correct.

While the AWU couldn’t definitively prove the raids were motivated by a political vendetta against Bill Shorten, the judge said that claim was “not entirely bereft of support”. In part, they fell short because they didn’t question the key decision maker, Chris Enright, about why ROC’s media officer described the investigation as “a formal inquiry into Bill Shorten” and “perceived [a] need to disguise it” as an inquiry into the AWU. Moreover, “[h]ow or why it was that between 2.29 pm on 17 October 2017 and 5.34 pm on 17 October 2017 all mention of Mr Shorten was removed from the draft Decision Record was not explained”. While “it might have been expected that Mr Enright may have had some involvement”, the AWU couldn’t explicitly link him to it.

The judge “harbour[ed] concerns about the reliability of the evidence given by Mr Enright”; it was “unsatisfactory” and “hard to accept”, it “involved inconsistency and was not plausible”. Enright himself was described as “selective in relation to the matters he chose to rely upon” in deciding whether to investigate the union, “unwise … to have had direct contact with the Minister’s office”; he was “evasive”, “overly protective of his own conduct and the conduct of the Commission and … he was prone to giving evidence as an advocate protecting himself and the conduct of the Commission from criticism.”

Nevertheless, the judge could see no “strong motive” for Enright to improperly target the Opposition Leader, because he is a “career public servant” with an “unblemished career”, who “has held a range of positions and performed various roles serving governments of the Minister’s political persuasion as well as those on Mr Shorten’s side of politics”. But these findings were based on “the evidence before me”, and don’t take into account the fact that last time Enright served Mr Shorten’s side of politics, he kept a secret file on his boss, the Home Affairs minister.

And contrary to media reporting, Michaelia Cash was not exonerated. The court held that because ROC admitted it had assumed Cash was politically motivated — an assumption the court said would be shared by “[m]ost people with an understanding of the relevant political landscape” — it was not legally necessary to decide whether that assumption was correct. So, was Cash lying when she denied it? The judge sidestepped that question, saying “it is neither necessary or appropriate that I address the adverse credit findings sought”, leaving open the possibility that Cash lied under oath.

So — what this judgment shows is that ROC is at best incompetent, and at worst politically motivated and effective at stonewalling. It should be abolished, not given more power to attack unions.