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:

https://youtu.be/9VEoTWhiO8c

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."

BRIEF BACKGROUND

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.

Relief

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.

Australian Federal Election 2016: bolting to the ballot box before arrests are made?

It is looking more and more as if Malcolm Turnbull’s decision to go to the polls early has less to do with so-called Senate obstruction and a lot more to do with a number of allegedly criminal skeletons in Liberal and National Party closets……..

ABC News 29 April 2016:

Australian Federal Police (AFP) have ramped up their investigation into the copying of former speaker Peter Slipper's diary.

The ABC has been told the AFP has made an application to the Federal Court, which, if granted, would allow police to use evidence from an earlier civil case in a criminal prosecution.

That evidence includes text and picture messages exchanged between Mr Slipper's former staffer, James Ashby, and Liberal National Party MP Mal Brough.

Mr Brough is under investigation by the AFP, who executed a search warrant at his Queensland home last year as part of that probe.....

Now the AFP has asked the Federal Court to grant it permission to use the material harvested from Mr Ashby's phone, including excerpts from Mr Slipper's diary sent by Mr Ashby to Mr Brough.

In its application, the AFP has said the messages will be used in the current investigation, and any subsequent prosecution.

Permission is necessary because the exhibits were originally only to be used in the civil case.

Mr Ashby's sexual harassment suit was rejected by a Federal Court judge, who said Mr Ashby had been part of a "combination" including Mr Brough, which had used the legal action as a political weapon against Mr Slipper.

Mr Ashby then appealed and the original judgement was set aside, but Mr Ashby later dropped the case.

However, it subsequently emerged the AFP is investigating whether Mr Brough committed a crime by encouraging Mr Ashby to copy pages of Mr Slipper's diary.

Mr Brough stood down from his role of Special Minister of State in December, saying he would not contest the upcoming federal election.

Brough's small target strategy at work?

https://youtu.be/7AM5XR7K0kU

The Guvmin Gazette on 6 December 2015 attempted to put the best spin possible on what MP for Fisher Mal Brough was required by precedent to do:

Special Minister of State Mal Brough has asked for a $108,000 pay cut and to move from a ministerial suite to a backbench office as he stands aside from his post while the Australian Federal Police ­investigate him for any wrong­doing in the Peter Slipper affair.

Malcolm Turnbull announced last week, on the same day as junior minister Jamie Briggs’s resignation, that Mr Brough would step aside from his ministerial ­duties pending police inquiries into the alleged 2012 illegal copying of the official diaries of the then Speaker Mr Slipper.

Mr Brough wrote to Speaker Tony Smith on the day of the ­announcement requesting the ministerial component of his ­salary not be paid from that day and for the 

allocation of an office in the House of Representatives wing.

“Mr Brough’s requests were communicated to the Department of House of Representatives on the same day, and appropriate action is being taken to action them,” a spokesman for Mr Smith said.

Mr Brough’s ministerial salary of $307,329 will drop to a backbench salary of $199,040.

The Australian has also been told Mr Brough has relinquished ministerial entitlements, including a mobile phone…..

One has to wonder if the interview, media release or phone call to journalist which is the likely trigger to this newspaper article is part of Brough’s strategy to make himself the smallest target he can manage ahead of the start of the 2016 parliamentary year, when more questions about his past conduct are bound to be raised with the Prime Minister by the Opposition.

BRIEF BACKGROUND

Questions by Mark Dreyfus MP Labor Oct 2012 - Dec 2015

Speech by Graham Perrett MP Labor Nov 2015

Prime Minister Abbott's plan still permits an outrageous attack on Australian press freedom

Media Entertainment & Arts Alliance 16 March 2015:

The Media, Entertainment & Arts Alliance (MEAA), the union and industry advocate for Australia’s journalists, cannot support the Prime Minister’s proposal for government “agencies to obtain a warrant in order to access a journalist’s metadata for the purpose of identifying a source”.

The Prime Minister’s plan still permits an outrageous attack on press freedom and would have a chilling effect on journalism in Australia leading to whistleblowers being fearful that they risk exposure if they seek to reveal instances of wrongdoing, corruption, waste, illegal activity and dishonesty.

MEAA believes the lack of understanding of what is at stake requires the proposed Parliamentary Inquiry into press freedom concerns to go ahead in order the concerns of journalists and media organisations are heard and acknowledged by MPs.

MEAA CEO Paul Murphy said: “What needs to be understood is that no journalist, anywhere, can ever allow the identity of a confidential source to become known – that is a guiding principle of journalism the world over. It is a principle acknowledged by every Australian journalist in clause 3 of MEAA’s Journalist Code of Ethics: ‘Where confidences are accepted, respect them in all circumstances’.”

Murphy added: “Accessing metadata to hunt down journalists’ sources, regardless of the procedures used, threatens press freedom and democracy. It means important stories in the public interest can be silenced before they ever become known, and whistleblowers can be persecuted and prosecuted. It means journalists can be jailed for simply doing their job.

“The so-called ‘safeguards’ recommended by the Parliamentary Committee were no safeguards at all because they still allowed government agencies to hunt down journalists’ sources. Similarly, the Prime Minister’s proposal also allows those agencies to trawl through a journalist’s metadata in order to expose a confidential source. Putting a hurdle like a warrant in the way will not change the outcome: using a journalists’ metadata to pursue a whistleblower. Why does the Government not understand that no journalist can breach their fundamental ethical obligation to never allow the identity of a confidential source to be revealed?”

MEAA has consistently explained this principle of press freedom in every submission to Parliament on the national security laws. MEAA also repeated those concerns on Thursday last week when it was visited by representatives from the Prime Minister’s, Attorney-General’s and Communications Minister’s offices and the AFP Commissioner Andrew Colvin. During that meeting, the AFP confirmed it has been repeatedly asked to hunt down journalists’ sources by accessing journalists’ metadata and he confirmed that it is doing so. The Data Retention Bill will simply formalise these activities with no regard to the press freedom implications and presumably encourage at least 20 government agencies to go trawling through journalists’ metadata.

Murphy said: “Journalists cannot allow the relationship they have with a confidential source to be breached, under any circumstance – that is their ethical responsibility. If the surveillance continues and is formally adopted in the Data Retention Bill with or without a warrant, then journalists will be forced to use the tools of counter-surveillance such as anonymisation and encryption to protect their sources. It remains our fundamental position that this Bill should not be proceed at all and that the press freedom concerns of the previous two tranches of national security laws must be addressed.”

In an interesting twist, the Australian Federal Police issued a media release in which it admitted that police already request access to journalists’ metadata:

Fact check: Use of metadata in relation to journalists

Release Date: Tuesday, March 17 2015, 02:34 PM

In a statement released yesterday, the Media, Entertainment and Arts Alliance (MEAA) claimed that AFP Commissioner Andrew Colvin confirmed the AFP had “been repeatedly asked to hunt down journalists’ sources by accessing journalists’ metadata and he confirmed that it is doing so. The Data Retention Bill will simply formalise these activities with no regard to the press freedom implications and presumably encourage at least 20 government agencies to go trawling through journalists’ metadata.”

This is inaccurate and a distortion of the comments made.

Commissioner Colvin said that over the past 18 months, the AFP has received 13 referrals relating to the alleged unauthorised disclosure of Commonwealth information in breach of section 70 of the Crimes Act.

This offence specifically criminalises the activity of Commonwealth officials who have released Commonwealth information in contravention of their obligations, not journalists.

In the overwhelming majority of these investigations, no need was identified to conduct a metadata telecommunications inquiry on a journalist. AFP requests for accessing a journalist’s metadata are rare. [my red bolding]

On  19 March 2015 the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 was passed by the House of Representative. Only three MPs voted against it - The Greens'Adam Bandt and Independents Andrew Wilkie and Cathy McGowan.

 Image from The Guardian 19 March 2015

Five short words for Mick Keelty

Keelty to tell court Rush was a minor player

Too little, too bluidy late!

Next question: Where's Harold Holt?

A couple of correspondents in letters to the editor of The Sydney Morning Herald (Saturday, 15 May) neatly summed up the shocker the Australian Federal Police put in when they contacted Dutch police about the whereabouts of accused war criminal Dragan Vasiljkovic, only to be told the fugitive was still in Australia.

In fact, "Captain Dragan", also known as Daniel Snedden, was wiling away his time at down-town Harwood Island, a satellite suburb of Yamba, "the best town in Australia", in Big River Country (aka Clarence River territory).

Dutch courage

A suspected Serbian war criminal goes AWOL under the very noses of the Australian Federal Police ('' 'Captain Dragan' tried to make a deal'', May 14). What does it do? It asks the Dutch authorities to check its end. Lo and behold they were able to tell our people not only that he was not holed up somewhere in Holland but supplied the address where he was hiding here. Good to know the AFP is on the ball.

Eddie Raggett Mosman

Is it too late for the Australian Federal Police to ask the Dutch police to find Harold Holt?

Glen op den Brouw Liverpool

Source: SMH letters