Tuesday, 12 May 2020
Australian Workers Union
Last week, a full bench of the Federal Court heard the appeal in the matter of the Australian Workers Union's long-running attempt to shut down an investigation by the Registered Organisations Commission into unauthorised use of members' money by its former national secretary, Mr Shorten. When I last spoke on the matter, I noted the similarities between the allegations facing Mr Shorten and the AWU and Mr Thomson and the HSU. In both cases, they used the union's funds as a springboard for their political careers. Mr Thomson was found to have breached sections 285, 286 and 287 of the Fair Work (Registered Organisations) Act 2009, the very same sections Mr Shorten and the AWU stand accused of breaching. Every substantive, albeit spurious, claim made by the AWU was comprehensively rejected by the Federal Court. First, the AWU sought to assert collusion between the government and the commission. It lost. It asserted collusion between the government and the AFP. It lost. It asserted collusion between the government and journalist Brad Norington. It lost. On the questions of law, the AWU asserted that the commission had no jurisdiction over matters prior to its establishment. It lost. It asserted that the commission had acted at the direction of the government. It lost. It asserted that the commission's investigation was done for an improper political purpose. It lost. It tried to challenge the decision of the court to grant the search warrants. It lost. It asserted that the AFP's decision to execute the search warrants was invalid. It lost. Finally, it sought an order of prohibition that would prevent the commission from ever looking into these matters at all. And, of course, it lost. Its only minor victory was that the court ruled that the commission's attempt to investigate breaches of the union's rules was statute barred because of a limitation period. This point is now being appealed. If the full court decides in the commission's favour then the AWU will have lost on every single ground it has raised in its two years of lawfare, smears and distractions, at great expense to its members.
This matter could in fact be settled very easily by the voluntary release of the documents. When asked on 25 October 2017 if he would release all the documentation, Mr Walton, the AWU secretary, replied, 'Absolutely. We will most definitely participate fully. We will provide all the documents.' Mr Walton needs to be true to his word, and Mr Shorten should insist that he is. But, based on the assumption that Mr Walton does not intend to release the documents, we still won't know what he and Mr Shorten were so desperate to hide. If the commission wins the appeal then the documents are handed over to it and it gets to conduct the investigation. If the commission loses on appeal, two things may happen. The first is that it may continue its investigation as breaches of the act, as the court has ruled it is free to do. The APF will hand over the documents and we will then see whether it believes Mr Shorten has a case to answer or not.
The second possibility is that the court rules that the existing investigation is quashed because it includes allegations of breaches of the rules as well as the act. This would mean that the commission is free to commence a fresh investigation of breaches of the act. But the interesting point in this scenario is that the documents currently held by the AFP must be returned to the AWU. If the commission commences a fresh investigation into breaches of the act, it could once again request that the AWU hand over the very same documents—something the AWU promised to do in any event. It thus begs the question: given the professed willingness to hand over the documents, combined with a declaration that there is nothing to hide, why has so much of members' money been spent on seeking to hide the documents? The ruling of the Federal Court will soon tell us.