Meanwhile, in a senate estimates committee – the last one for this parliament – other AFP forensic triumphs were on display. Such as the mysterious case of who tipped off the reptiles of the media to an imminent AFP raid on offices of the Australian Workers Union last year – resulting in news crews and TV cameramen setting up their cameras even before the police arrived, to the bemusement of those about to be raided. The AFP believes it knows who leaked the information, but the DPP doesn’t think the cops can prove it.
The DPP thought it had no such problems with the prosecution of former Deputy Tax Commissioner, Michael Cranston. But it was wrong. He was acquitted by a Supreme Court jury of using his position to influence an ATO investigation of his son, accused, along with an array of others of a major fraud on taxpayers by rorting the payroll tax system. He was probably acquitted because jurors believed him, rather than because they had a reasonable doubt about his guilt.
Cranston, and the others yet to face trial, had been swept up in coordinated dawn raids. They had been timed to suit a media strategy, not the other way around. The AFP wanted to make a big bang and get glory for the detectives. That doing so blackguarded the names and reputations of all of those who were to be charged, treating them as though they had already been convicted, was a coincidence, apparently. Normally, under what is called the sub judice rule police and the media are heavily restricted in what they can say about a defendant after he, or she, has been charged.
At a press conference, a mass of detail about the investigation, including flow charts of how it was said that the fraud worked, was given to the press and broadcast to the world. All day long, AFP media officers helped media outlets with photos, footage of the press conference and copies of the flow charts.
It was only after all this had occurred, and thorough prejudice done to all of the defendants, but particularly to Mike Cranston, that formal charges were laid and people brought before the courts. The timing of the charging was no coincidence; it had been planned that way.
On trial last week, Cranston was frank about the interventions he had made, but insistent that he had made inquiries through others, to whom he had disclosed his interest, so as not to interfere with the investigation. No one was surprised at his acquittal, but his career is over. The AFP can’t make omelettes without breaking eggs.
Meanwhile, the AFP Commissioner, Andie Colvin confiding to senators that he is cogitating about what to do with a request from Mike Pezzullo, secretary of the department of home affairs, that the AFP investigate a leak, to the Australian, of a classified home affairs submission attacking the Labor Party position on medical evacuations from Manus and Nauru. The headline suggested that ASIO was playing party politics, and damning Labor boat people policy for running the risk of opening the floodgates.
ASIO had said no such thing. It had merely indicated, at a gathering of agencies in Home Affairs, that it would be next to impossible to prepare security assessments in 24 hours, as some draft legislation has suggested the floodgates argument – being used by the government in the home of a boat-people election – is the (entirely consistent and predictable) view of Pezzullo.
Last weekend, I was very critical of Duncan Lewis, for his failure to immediately disassociate himself from The Australian’s report, saying his failure to do so had seriously damaged the organisation.
We may not know who actually leaked the home affairs submission, that incorporated some ASIO technical comments. But Home Affairs minister Peter Dutton was entirely unembarrassed about associating ASIO and the government’s security advisers generally with Pezzullo’s view. He was verballing them.
On Monday – too late but better late than never – Lewis did what he should have done the week before. The publicity given to his distancing ASIO from the Pezzullo document undid some of the earlier damage to the organisation.
Meanwhile Pezzullo, himself angry about the leak, and fairly sure it had come from his minister’s office, referred the leak to the AFP for investigation. He did it without consulting the minister. But the AFP commissioner has yet to decide whether to start such an investigation. He’s ‘evaluating’ the request.
On form, it’s hard to understand his caution about fingering the minister or his office. One can be sure, based on history, that the investigation will last until well after the next election, and, most likely end up without result, or unwillingness to prosecute from the office of the Director of Public Prosecutions.
On the cui bono principle, Blind Freddy could solve this crime in a minute. But AFP officers do not seem to know Blind Freddy, and have failed in cases where the culprit has seemed even more obvious. It might be unfair to suggest timorousness, or desire either to ingratiate or at the least not offend, the government of the day.
Suffice in the 40 years we have had the AFP I have not known the AFP to solve a single “crime” – or leak inquiry – if the result has had the potential to embarrass the government of the day. It is not a partisan matter; the AFP is just as obsequious and attentive when Labor in power, one of the reasons Labor tends to exempt it from criticism, on the ‘dog don’t eat dog’ rule.
The idea of asking questions of Dutton and his office – we can take it they individually and severally deny leaking, even if after, they had the document declassified so that it could be quoted – is under evaluation, Colvin told estimates.
“For every matter like this we receive we evaluate what avenues of inquiry are open to us, what the prospects of a successful investigation will be,” he said. “We are going through that. Whether an offence has been committed, what the nature and the context of the document that has been leaked, what its protection and classification is — we are going through that process at the moment … we need to satisfy ourselves that the alleged activity matches the elements of the crimes that are available to us.’’
That, apparently, is before one finds out what evidence there is of such a crime. I doubt that Dutton’s office is losing much sleep over the prospect of being fanged by the AFP tiger. Licked to death more likely.
Consider the ignominious end of its nine-month intensive investigation into a tip-off of journalists about the AFP raid on AWU offices.
We know, inter alia from evidence in an associated Federal Court case, that among those who tipped off journalists was a minder in the office of Michael Keenan, then the minister for justice and the minister with responsibility for the AFP. No doubt by complete coincidence, the AFP had given Keenan’s office earlier a “heads up” about the impending raid.
This minder, apparently, talked with folk in Michaelia Cash’s office. Someone there had already been tipped off via a press officer in the Registered Organisations Commission, a person about to shift in Cash’s office. After the news also came in from Keenan’s office, the PR people in both Cash’s office and Keenan’s offices divided among themselves the job of tipping off the media.
Keenan and Cash indignantly deny any knowledge of this leaking, or the authorisation of it. The ROC investigation, which she had urged on the “independent” ROC but not directed, was to provide an occasion to attack Bill Shorten for authorising an AWU donation to Get Up. Among Liberals and people who worked in the trade union royal commission (including the present DPP) it seems to be settled doctrine that such a donation was not properly authorised and was in breach of some law or other.
But the case is far from convincing and even the royal commissioner, suggestible on anything reflecting ill on trade unions, ended up being unimpressed with the case, gathered, mostly by AFP investigators, that Shorten was an ogre. A more convincing case was made out that Shorten was a pussycat who talked tough, but put his own interests, and the interests of the union bureaucracy, ahead of members.
The senate committee was told that neither Keenan nor Cash had been very cooperative with the police investigation into the leak. Six others, of about 60 questioned, had also refused to answer questions. When police asked that Cash cooperate in preparing a statement, she contented herself with supplying the police with a copy of what she had said in Hansard. She doesn’t seem to have answered questions. Cash has continually sought to avoid scrutiny of what she did, if anything, the fact of one inquiry or court case or privilege to claim that she is inhibited in what she can say. It may look – does not – evasive and fishy, but the mere appearance is not evidence, whether of guilty acts, or guilty intentions.
In estimates, Assistant Commissioner Leanne Close made generous allowance for Cash’s ‘right’, along with the others who did not cooperate, to stay mum. Strictly any suspect has that right.
But should a still serving minister be allowed to avoid public accountability behind such a right? Can a serving politician ‘claim the Fifth’ – as the Americans might say – and survive politically? If there is to be a principle involved, it should be something like a claim of diplomatic immunity in a serious matter: one can invoke the immunity once, and immunity will be granted. But the price is that one exit the jurisdiction – in the case of a minister or ministerial staffer, resign.
I should have thought that a bold investigator would have pursued questions, and cajoled some answers, not least with a threat of going to the prime minister or going public.
Close said there was evidence of the destruction of emails and other documents – dare one say incriminating ones in both ministerial offices. I imagine that this might be able to be framed as an attempt to pervert the course of justice – something one might not expect a minister for justice to have said about his office. Or Cash, herself a lawyer after all.
But the supreme irony is that the AFP leapt into the Australian Workers’ Union raid affair, all guns blazing with warrants and squadrons of police, because of a suspicion said to abide in a ROC heart — that destruction of evidence might occur in the Australian Workers’ Union office.
We do not know how much basis there was for this suspicion — it is never very hard to get a warrant from an ACT magistrate, and some, as a recent case demonstrated, do not even seem to know about parliamentary privilege.
But leaking confidential government information is regarded, perhaps wrongly, as a quite serious crime. So is the destruction of documents relevant to a criminal inquiry. By contrast document destruction by the AWU – if it happened – would be of evidence that might have been relevant to an administrative – not a criminal — offence, and might not be an offence at all. The AFP has inverted the seriousness of the offences. They did the same in rating the ROC request as important in its usual prioritisation process, and by responding in the usual over the top when it performs raids on alleged terrorists.
The leak investigation was long. But it seems to have been timorous, tentative and scared to offend. Certainly, an AFP which did not hesitate to get a warrant to secure Australian Workers’ Union documents does not seem to have thought of doing the same thing for ministerial office documents. One might imagine as well that the resources of the AFP include the capacity to retrieve deleted material from government computers. Sadly, it seems that investigators were too polite to press any points, perhaps for fear that ministers might get angry at them.
But despite these self-inflicted handicaps, the AFP investigators were apparently able to prepare a brief identifying at least some of those involved in the leaking. The investigators and the AFP legal chaps were confident that it went beyond a prima facie case, and that convictions were likely.
But the DPP disagreed. Because two ministers and six minders or public servants had not cooperated, there were gaps in the evidence and conviction was not virtually certain. Message: when there’s a leak inquiry, refuse to talk. If the police won’t walk away, the DPP will.
The AFP has accepted the verdict gracefully, and dropped everything. The beauty of this, moreover, is that the public will never know anything about the processes by which the matter leaked, including about the role, if any, of the AFP media team. They will of course piously blame the DPP rather than a less than wholehearted investigation, even as they gleefully deny access to the brief and any sort of public accountability.
On matters such as this, the DPP will say complacently: don’t blame me, I am just the messenger telling you your case is not good enough. Perhaps, but it is remarkable how ready prosecutors have been to prosecute some weak cases, such as the case against Cranston, or, during the days of Dr Haneef and DPP Budd, an entirely misconceived case – luckily aborted by other, more sensible folk.
I am surprised that regulatory agencies that copped a flogging from the Hayne commission for failure to prosecute crooked banks and financial advisers did not answer that it was the chronic incapacity of the DPP to get convictions that made them look for other pathways.
It’s a sorry story, and from a sorry and poorly led police force. It is an organisation given more and more resources and powers of surveillance and evidence gathering, even as its outcomes, whether in drugs, in leak inquiries and other matters in the public eye, are, in the modern managerialist phrase “less than optimal”. It is time the AFP, and its culture, was subject to searching external review. The public, and government, deserves a whole lot better.
Jack Waterford is a former editor of The Canberra Times.
Jack Waterford is the former Editor-at-large at The Canberra Times and writes a regular column