Thursday, 19 May 2016

Australian Federal Police and the Construction Forestry Mining and Energy Union (CFMEU) in 2016

The Australian Federal Police (AFP) are not covering themselves with glory in relation to one Australian union.......

This article in The Guardian on 16 April 2016 appears to indicate that, in subsequent interactions with Construction Forestry Mining and Energy Union (CFMEU), the Australian Federal Police did not forget that the union had successfully defended itself in court in 2015:

A complaint from the construction union to the commonwealth ombudsman paints an extraordinary picture of heavy-handed tactics by special police taskforces, including a police officer allegedly warning one unionist he knew his children’s names and what time he dropped them off to school.

The letter, sent by the Construction Forestry Mining and Energy Union (CFMEU) on Tuesday, complains that police repeatedly attempted to question witnesses without their lawyers present and, in one case, demanded a junior employee grant access to union headquarters during a raid without first showing her a warrant.

The union’s complaint alleges that when the Australian federal police searched the ACT branch’s headquarters on 25 August, one officer told the branch secretary Dean Hall, “I do know about your family things”, to explain how he knew his wife’s name.

“Like, I know your kids’ names and their ages and where they go to school and when you drop them off,” the officer is said to have told Hall. “What do you expect? I am profiling you.”

The union’s lawyer, Phillip Pasfield, told the ombudsman these alleged statements were intimidatory, unwarranted and designed to threaten Hall, who was “extremely upset” about the incident.

In December the Australian Capital Territory supreme court ruled that the raid was unlawful because police withheld information from the magistrate in order to get the warrant.

The CFMEU complained that the officer in charge of the raid told building industry participants that he would prefer to make workplace agreements with the Master Builders Association, not the CFMEU…..

The union claimed the AFP deliberately misled a Fairfax Media journalist by saying a CFMEU official had been “raided” on 2 December then changed its story to say the raid related to the official but was not a raid on his or her property. This was done to “destroy the reputation of the official involved”, it said.

In another incident, the CFMEU said the union police taskforce provided false information or failed to correct journalist Stephen Drill, who incorrectly reported Victoria police’s union taskforce Heracles had raided the CFMEU’s Victorian headquarters…..

While this report in The Guardian on 9 May 2016 raises serious concerns about the conduct of the federal police:
Union officials have launched an extraordinary attack on the Australian Federal Police, accusing the force of adopting an "unbalanced and aggressive" approach to union activities and executing the Turnbull government's union-busting ambitions.
Sparking a flare-up of simmering tensions this week, a Victorian union safety officer has become the subject of a criminal investigation after he tested the stability of a guard rail during a site visit and it immediately collapsed.
A letter from the AFP, seen by Fairfax Media, details the allegation of property damage against the Construction, Forestry, Mining and Energy Union's Peter Clarke. 
The union said the case was "bizarre" and added to serious concerns that police were responding to political pressure to become more heavily involved in industrial relations matters.
"This is a bizarre use of AFP resources that ought to be used to deal with the serious criminality that goes on in the community," union secretary Dave Noonan said.
"It's clear to us that senior officers of the Australian Federal Police are directing some kind of campaign against the union and its officials."
The case is the latest example of what the CFMEU claims is unjust, heavy-handed treatment of its members and officials in Victoria, the ACT and Queensland by the federal police. Slater & Gordon, the union's legal firm, has filed a formal complaint against the AFP with the Commonwealth Ombudsman.
Video footage of the alleged property damage incident shows Mr Clarke – a safety officer with the union's Victorian branch – approaching the guard rail during a safety inspection at a Canberra construction site in February. It appears to show him momentarily shaking the railing before a large section collapses.
Mr Clarke has been called in for interrogation over the incident.
"During the course of the investigation, Mr Clarke was identified as being responsible for damaging a guard rail at that location," AFP acting Commander Robert Wilson said in the letter.
"The allegation against Mr Clarke is property damage ... Police wish to speak to Mr Clarke in relation to the matter in the form of a record of interview."
The union said falls from heights were a leading cause of workplace injury and death, and every safety official was expected to check the stability of guard rails during site inspections. Statistics from Safe Work Australia shows the nation's construction industry accounts for almost 40 per cent of fall-related deaths.
"The fact that this rail was so flimsy it didn't survive a light shake shows it would have been completely ineffective in preventing a fall, and completely fails to comply with the relevant codes of practices," Mr Noonan said.
"Are our priorities saving workers on construction sites from getting killed, or trying to cover up for builders who cut corners on occupational health and safety and put workers' lives at risk?"
The Australian Federal Police said the investigation was ongoing and it would not be appropriate to comment.

CFMEU video footage of the alleged property damage:

The Guardian, 5 May 2016:

In separate proceedings, union official and rugby league great John Lomax will appear in the ACT Supreme Court on Friday against the AFP.

Mr Lomax was investigated and prosecuted for blackmail last year, with police alleging he attempted to force a Canberra painting company and its principal to sign a union enterprise bargaining agreement.

The prosecution was dropped in October. 

Now Mr Lomax is considering a malicious prosecution lawsuit. 

He and his lawyers declined to comment ahead of Friday's court appearance.

But CFMEU national construction secretary Dave Noonan, Mr Lomax's employer, said the former Canberra Raiders hardman's lawyers had been forced to seek a court order to access information about the investigation after requests to the federal police failed.

"The solicitors [who act for Mr Lomax] have sought various documents to ascertain whether or not our concern that there was a malicious element to the prosecution can be sustained," Mr Noonan said.

"Those documents have not been supplied.

"As the documents were not produced it's necessary to make an application in court for pre-trial discovery."

Mr Noonan said the contents of the documents would determine whether Mr Lomax would launch a malicious prosecution suit against the federal police.

"[Mr Lomax] was charged on a completely bogus charge, our QC said so at the time, they proceeded with the charge, they failed to provide any evidence to the court and the charges were dropped.

"If the AFP has got nothing to hide, why not provide the documents? If they acted in good faith, why not provide the documents?

"We think the proper thing for the AFP to do is to produce the documents."

ABC News reporting on the ACT arm of the Australian Federal Police on 22 March 2016:

A former staffer at the centre of an investigation into the office of Labor MLA Joy Burch has hit out at ACT police after it was announced the inquiry had been dropped.

Last year, allegations arose that Ms Burch's chief of staff, Maria Hawthorne, leaked sensitive details of conversations between the ACT Government and the chief of police about the conduct of officers on construction sites in Canberra, to the Construction, Forestry, Mining, Energy Union (CFMEU).

ACT Policing has announced no criminal charges would be laid but revealed that allegations also involved another former staff member.

Ms Hawthorne dismissed the allegations against her and other staff.

"ACT Policing's last-ditch attempt to implicate a second staff member should be seen for what it is – a desperate act of distraction," she said.

"The truly unprecedented event of the past three months has been an elected minister losing her job because of unfounded allegations by an unelected official."


In this ACT Supreme Court judgment, Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police [2015] ACTSC 362 (2 December 2015), the Australian Federal Police are found to have abused process:

140. The fact that a second or subsequent warrant might be an abuse of process does not go to the question of the validity of any such warrant, but only if it is shown that the second warrant is actually issued for an ulterior or improper purpose or otherwise constitutes an abuse of process.

141. In my view, it could not be said, in this case, that the issue of the second warrant was an abuse of process. No prejudice to the plaintiff was identified that was outside the contemplation of the construction of the relevant provisions.


266. As I have found the seizure under the second warrant to be invalid because of the failure to disclose fully the circumstances that were required to be disclosed for the issuing officer, the learned Magistrate, to make a proper decision about whether to issue a warrant that is able to be executed after 9.00 pm, I have not found that any of the other complaints invalidated the search or the warrants.

267. In relation to the material obtained under that warrant, the material must be returned or destroyed.

268. In relation to the breaches that I have found, I have been asked to make declarations of non-compliance with the relevant sections.
269. The question of whether I had power to make declarations was not subject to any challenge by the first defendant, other than as to discretion. This is not a case such as Kennedy v Baker where such an issue arose. There is, in this Court, plenary power to make such declarations and I do not need to consider the jurisdiction further.

270. As to discretion, the only basis on which it was urged that I should not make any declaration is that a failure to do so would still leave a court, which was required to deal with any criminal proceedings on which any seized material is sought to be admitted, and which retained jurisdiction under s 138 of the Evidence Act, to deal with any impropriety or illegality then.

271. I accept that a court will be appropriately able to protect an accused’s interests in any such criminal proceeding by such means; see Phong v Attorney-General for the Commonwealth [2001] FCA 1241; (2001) 114 FCR 75. It seems to me, however, inappropriate to deprive such a court of my findings following what was a detailed hearing with not only affidavit evidence but cross-examination and oral submissions.

272. In the circumstances, I am prepared to make the declarations.

273. It seems to me that the plaintiff has had sufficient success to justify an order for costs. I shall permit the parties to seek another order but otherwise so order.

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