The Commonwealth Director of Public Prosecutions now faces a major test, after the Australian Federal Police referred on the actions of Michaelia Cash’s office in relation to the Australian Workers Union raids.
Last year, one or more people in Cash’s office tipped off the media about a pending AFP raid related to an investigation by the Registered Organisations Commission, initiated by the government, into the AWU’s donations to GetUp a decade ago. The ROC’s investigation is aimed at Bill Shorten, leader of the AWU when the donations were made.
The Abbott and Turnbull governments have repeatedly used legal and funding mechanisms to attack their opponents and critics. The AFP has been repeatedly dispatched to investigate whistleblowers who have embarrassed the government and agencies like the NBN. Two royal commissions have been established to pursue Labor figures. ABC funding has been slashed and its journalists attacked. The ROC investigation was seemingly part of this agenda, but backfired spectacularly courtesy of Michaelia Cash’s remarkable talent for stuffing up.
But Sarah McNaughton, the Director of Public Prosecutions, has also played a role. McNaughton was a counsel assisting Dyson Heydon’s trade union royal commission (TURC), and subsequently picked by George Brandis to be DPP. In May, McNaughton took the extraordinary step of prosecuting Witness K and Bernard Collaery, five years after revelations that the Australian Secret Intelligence Service broke the law and bugged the Timor-Leste cabinet. But even more remarkably, McNaughton’s summons targeted ABC journalists, editors and producers in relation to the case but omitted News Corp — despite News Corp breaking the story in 2013.
Serious questions remain about McNaughton’s conduct in relation to Collaery and Witness K: why she launched the prosecution, why the CDPP waited five years, why News Corp was omitted and ABC staff included. Plus, why the prosecution appeared to fulfil the threat made by the man who appointed her (George Brandis) against Collaery in 2013, and what interactions she had with the government in relation to the case, especially what she told Attorney-General Christian Porter about it.
The CDPP is supposed to be entirely independent of the government, but these lingering questions raise grave concerns about McNaughton’s capacity to be seen to be independent.
The Cash affair now raises those stakes. Is McNaughton content to support the government’s agenda of harassment of those who embarrass it, or is she genuinely independent? If McNaughton’s threshold for prosecution is so absurdly low as to find fault in the illegal conduct of an Australian agency being brought to light in a manner entirely consistent with the advice of the Inspector-General of Intelligence and Security — as Witness K did — then she must surely have no problem with prosecuting Cash’s staff (and, it is yet to be clarified, perhaps Cash herself).
A failure to prosecute will give substance to widespread concerns about the government’s handpicked former TURC counsel.