AWU probe invalid, but not political, court finds

Federal Court rules AWU raids invalid but says probe into union wasn’t launched to help Michaelia Cash embarrass Bill Shorten.

The AWU failed to establish that an investigation was launched to aid an alleged improper political purpose of Senator Cash to embarrass or politically harm Bill Shorten, a court has found. Picture: AAP

The Federal Court has found the Registered Organisations Commission did not have reasonable grounds for investigating the Australian Workers Union, but rejected union claims the probe was launched to help Michaelia Cash politically embarrass Bill Shorten.

Judge Mordy Bromberg upheld one of five grounds challenging the validity of the regulator’s probe into the authorisation of AWU donations to GetUp and Labor candidates when Mr Shorten was the union’s leader.

He upheld the AWU’s contention the ROC could not be validly satisfied there were reasonable grounds for conducting the investigation into whether the union’s financial probity obligations had been contravened.

But he said the AWU had failed to establish that the probe was launched to aid an alleged ­improper political purpose of Senator Cash embarrassing or politically harming Mr Shorten.

While he found the decision to conduct the probe was invalid, he scheduled further hearings to ­determine whether the search warrants executed through raids on the AWU in Melbourne and Sydney were also invalid.

Justice Bromberg found Senator Cash’s former media adviser, David De Garis, and former Justice Minister Michael Keenan’s then media adviser, Michael Tetlow, tipped off the media about the raids on the AWU.

Mr De Garis told The Weekend Australian: “After two years of protracted legal proceedings and defamatory claims, the court has ruled that the investigation was not politically motivated. In terms of my role, I did what was literally written into my job title — I advised the media.”

The union had argued Senator Cash had the political purpose of trying to discredit and embarrass Mr Shorten; that ROC executive director Chris Enright knew she had that purpose, and took steps to accommodate Senator Cash’s interests in a proactive fashion.

Justice Bromberg said it was “entirely unremarkable that Mr Enright formed an understanding that Senator Cash was likely to be motivated by a desire to discredit, embarrass or politically harm Mr Shorten”.

“Most people with an understanding of the relevant political landscape and the strategies commonly utilised by politicians would have assumed that Minister Cash saw political mileage for her side of politics in the commissioner investigating the AWU over suspected misconduct whilst Mr Shorten was its national secretary,’’ he said.

AWU national secretary Daniel Walton welcomed the ruling that ROC did not have grounds to launch the investigation.

“We have said from the very beginning that this investigation was invalid, that it never should have commenced. We’re very satisfied the court has ruled that way,” he said. “This has been an exhausting, resource-draining and distracting process for our union, but it’s a vital part of democracy that the actions of public agencies can and should be held to account.”

Maurice Blackburn principal Josh Bornstein, who is acting for the AWU, said the decision made clear the ROC had made a serious legal error of judgment in deciding to pursue its AWU investigation.

A spokesman for Senator Cash said the “AWU’s pursuit of the minister was always a political game”.