The mysterious incapacity of the Australian Federal Police to solve crimes when there are suggestions of AFP, or government, fingerprints on the murder weapon is on display again. Recently the Federal Court was told that it might take AFP Sherlocks another four months or so to "wrap up" an investigation into how details of impending AFP raids leaked to the media.
That's an investigation which has already been going on for five months.
If the AFP can't "crack" the case, or if there are even further delays, one cannot expect that the AFP will receive complaints from government. Especially from the office of Michaelia Cash, despite the ordeal she has suffered from innuendo and gibes about her competence and judgment. Since the humiliations, she has been in court, unsuccessfully so far, attempting to prevent the AWU's access to any AFP correspondence with ministerial staffers relating to the leak investigation -particularly relating to any staffers associated with her.
The AFP raids were at the behest of the Registered Organisations Commission, which claims to have feared that the AWU might be in the process of destroying documents relevant to a civil investigation. The AWU claims, not with at least superficial plausibility, that the raids were politically motivated and for improper purposes. The RCO investigation is focused on AWU donations to the advocacy group Get-Up when the Leader of the Opposition, Bill Shorten, ran the AWU.
By contrast, the zeal with which the AFP sought to oblige government, with large numbers of staff in a high profile raid, owed rather more to a desire of the AFP to be "helpful" to the political interests of the government of the day. (It is just as friendly to the ALP when it is in government.) The raid certainly did not seem to fit in with its ordinary priorities, or, it appears, assessment of the validity of the suspicion, required to obtain the warrants, that document destruction was actually in prospect.
Mercifully, no one in the AFP, or the Commission for Law Enforcement Integrity, or (we can expect) the sort of person who would be put in charge of any future Federal ICAC, is examining AFP "operational judgments" or asking any questions about the AFP decision to go in all guns blazing.
The zeal being displayed by the office of the ROC to investigate the great Get-up scandal, if scandal it be, is alleged to stem from the desire of the government to embarrass Shorten in his current role, rather than to detect or repair any breach of the law. Like the AFP, the ROC is supposedly at complete arms' length from government, setting all of its own priorities. The independence of the office, some think, is as much a fiction as the independence of the AFP from political considerations in its operational priorities.
Which might help explain why a (now former) staffer of Senator Cash was among those tipping off media contacts about the impending AFP raids. This led to the embarrassment of television cameras and journalists being in position, in full view of AWU officers, waiting for the arrival of several platoons of armed police.
At first Michaelia Cash repeatedly denied in parliament that any of her staffers had been involved in leaking the information.
She and the staffer in question briefed the prime minister, Malcolm Turnbull, about her office's complete innocence of any leaking. This was so that Turnbull himself could issue bland denials of any funny business during Question Time in the House of Representatives.
Because it is unthinkable that Turnbull or Cash would lie, this suggests that the staffer was less than frank with his minister and his prime minister.
Hours later, much to Senator Cash's embarrassment, a media organisation fingered the staffer as the source of the tip-off. Cash then insisted she had not been told, and had not known. Luckily for her the staffer immediately quit. This put him outside any necessity to answer questions about who told him, when, and how he had forgotten to tell his minister and the prime minister of what he had done. If Senator Cash, or anyone else, asked any "exit" questions, she has not shared with us what she found out, or why she was betrayed and left looking stupid.
One presumes that the staffer did not let the right hand know what the left hand was doing for "plausible deniability." If so this involved noble self-sacrifice, though one would think that a prime minister with leadership qualifications would not be amused about being misled by omission during his briefing. Others might wonder about his incuriosity, before or after he became aware that he had been roped into the cover-up. But AFP inquiries do not seem to have extended to any information Turnbull (or perhaps his office for plausible deniability purposes) has subsequently gleaned.
Some of the clues liberally strewn around suggest that PR people associated with the Fair Work Ombudsman had some advance knowledge of the raids, and were eager to please the minister's office by giving it advance notice.
But it is also a notorious fact that the AFP always give the office of its own minister, then the Minister for Justice, a "heads-up" whenever anything politically sensitive or likely to attract media attention is about to occur.
Of course, those involved in this AFP "liaison" could never anticipate that any such information might be further shared around government, particularly among people able to (and likely to) exploit it for crude political purposes. And, likewise, the relationship between some media reporters and their AFP "snouts" is so good, and so much bound up in a reward-and-punishment ethos, that the AFP can give advance tip-offs to trusted journalists certain that they would never be dobbed in. A measure of this can be seen from the way that some media organisation reacted to the disclosure that Cash's office was involved in the leak by accusing the discloser of a breach of journalistic ethics.
Some might recall that 10 months ago, the AFP made some other very high profile raids – this time on a number of people accused of a $160 million plus conspiracy to defraud the taxation office through the use of straw companies to skim taxes on payrolls. Among those charged was the son of a senior tax official, a person who found himself the subject of charges after he was said to have made internal inquiries about a possible investigation into his son.
The AFP was relatively late into the investigation, though it took the lion's share of the credit and milked the publicity for all it was worth, including with handing out sophisticated flow-charts, and detailed explanations of the alleged frauds. A good deal of behind-the-scenes help in arranging assistance with photographs of suspects was also involved.
There was a big press conference, helpfully made available on downloadable tape for any media not able to be there, and lengthy press statements. The AFP media office was well prepared, having been given comprehensive briefing materials several weeks in advance, as well as having had extensive discussions with investigating detectives, and help in devising some of the flow charts given to the media.
I always wish the AFP well in their battle against crime. With its current culture it needs all the help it can get.
If the defendants are guilty, as a good detail of the AFP material plainly implied, I hope that they receive condign punishment. But I am old fashioned enough to believe that people are innocent until they are proven to be otherwise. I don't like trial by media, or attempts by police and prosecutors to "poison the well" by the distribution of plainly prejudicial material in triumphalist press statements.
Perhaps the law about the sub judice rule has changed while I was asleep. But a good deal of the AFP-sourced material that went into the public domain after arrests were made and charges laid seemed to my not inexperienced eye to breach the rule. Badly. Cuteness with claims that the AFP gave the press conferences and issued the statements "before" the sub judice rule came into operation would not, in any ethical operation, cut the mustard; the beneficiaries were plainly going to be publishing after the accused people appeared in court.
One can be sure, we hope, that the police did not hand out the information with a view to prejudicing trials, which will be, one assumes, some considerable time away yet anyway. I expect that all they wanted was to give themselves, and a few senior office bureaucrats keen on some personal publicity, a big pat on the back for a job well done.
There's a double standard by which police hide behind the sub judice rule when it suits them, so as to allow them to avoid embarrassing questions, ws the discriminant? Nothing to do with rights to a fair trial or the interests of justice, or even the seriousness of alleged crime. It's whether it makes the police, or its bosses, look good.
And, as I pointed out at the time, there's a long history going back to the origins of the AFP with the Greek Social Security case, through the comprehensive mishandling of the Haneef cases and other initial PR triumphs, that "the more overblown, prejudicial and self-serving the initial AFP propaganda, and the more senior the officers present claiming personal credit, the more likely the affair will end, much later, in tears, damages and political embarrassment. But never demotions, apologies or accountability."
With the tax raids, the cynic could not help noticing that the day after the raids, press conference, and court hearings that a number of media organs knew a good deal more than had been told them officially, or accountably, by the AFP. There were detailed profiles of players, accounts of love affairs gone wrong, descriptions of patterns of extravagant expenditure, and stories of former beauty queens being used as bait, and more. It invited questions about how journalists, even very good ones, were able to turn around stories, and garner so much extra information, so quickly after a press conference. Were some of them on the drip?
I put in an FOI request looking for details of how the AFP media unit "managed" the affair. This week – 10 months after the request, and delays caused by the AFP attempt to levy high charges, the intervention of the Information Commissioner's office and still further delays -- I received some very half-hearted disclosure, with anything "sensitive" blanketed behind heavy claims of being exempt from the FOI Act. And claims that any public interest in favour of disclosure were swamped by cogent public interest considerations against it. It might prejudice an investigation currently going on.
The AFP "media strategy", in draft from three weeks before the raids, is apparently entirely exempt, even as it was, presumably, about a strategy to tell the public what was happening. We are suddenly told that much material (in the AFP media unit) is exempt because it might prejudice a fair trial. A cogent public interest consideration was that "if information concerning the documents was revealed it may compromise the AFP's operations and damage relationships with external stakeholders". Presumably, the "stakeholders" are tame journalists, or those in "trusted" relationships blissfully unaware of how much, and how cynically, they are being used.
More, disclosure of media unit material "might have a substantial adverse effect on the conduct of similar operations in future." We are not told whether these similar operations are on the media or alleged tax miscreants.
And, "if such information was disclosed, it might prejudice security, law enforcement and public safety". What? Details of how the media was used to promote an AFP agenda? Golly. I did not realise that the integrity of AFP operations were on so delicate a thread.
The FOI decision is now under appeal, which, given the further delays they will milk to the utmost, will no doubt suit the AFP just fine.
No doubt just the same sorts of public interest considerations will forever prevent the AFP "sharing" details of its investigation into the leak to and from Senator Cash's office.
Somehow one just knows that all of the AFP's problems of leadership, efficiency, effectiveness, independence of political considerations and integrity will disappear now that the organisation sits inside the Home Affairs portfolio of Peter Dutton, an ex-Queensland cop, and Mike Pezzullo, who, in a wonderful display of Easter leadership and redemption has shown he can find compassion in his heart for any sinner against the public interest.
Senior sinners of past regimes are no doubt relieved that the view of ACLEI, and the present Attorney-General that a sexual relationship with an underling, accompanied by evidence of favouritism, is a sackable offence that cannot be retrospectively imposed. I have the explicit written assurance of one such person, some years ago, that ACLEI had put the ruler over his conduct and had refused to throw any stones.
Jack Waterford is a former editor of The Canberra Times