Jobs Minister Michaelia Cash resists call to give evidence in AWU court case

Michelle Grattan, University of Canberra

The government’s pursuit of Bill Shorten over a 2005 donation to GetUp has again come back to bite it, as Jobs Minister Michaelia Cash seeks to avoid a court appearance about last year’s police raids on Australian Workers Union offices.

Cash has been subpoenaed to appear in the AWU’s case against the Registered Organisations Commission (ROC) on August 1, as well as to produce documents earlier. But she told a news conference on Wednesday she had instructed lawyers to have the subpoena set aside.

Last year Cash wrote to the ROC about the A$100,000 donation to GetUp from the Australian Workers Union, made when Bill Shorten was union secretary. Shorten was one of the founding directors of the activist group.

The ROC commenced an investigation into whether the donation had been made with proper authority from the union.

Subsequently a member of Cash’s staff tipped off media that the Australian Federal Police were about to raid the AWU offices. Cash denied any knowledge of the alert given by her staffer, who quit over the incident.

The AWU launched court action claiming the warrants and the investigation were invalid.

This week Cash – who refused to say whether she has been interviewed by the AFP – declined on Tuesday evening and Wednesday to appear at the Senate hearings into the workplace portfolio, sending an assistant minister – even though she represents workplace minister Craig Laundy in the Senate.

Labor’s workplace relations spokesman Brendan O’Connor accused Cash of being in hiding.

“She should have taken responsibility for the conduct of her office seven months ago and resigned, which would have been consistent with the Westminster principles of ministerial responsibility,” O’Connor said.

Cash accused Labor and the unions of “a stunt”. “The subpoena was issued at the request of the Australian Workers Union – Bill Shorten’s former union. This is, in fact, the third subpoena at the AWU’s request,” she told news conference.

She said she was not a party to the court proceedings, which were between the AWU and the ROC.

It was Shorten who had questions to answer, Cash said, “Did he donate $100,000 of union members’ money to GetUp, of which he was a director at the time, without proper approval of the union’s executive?”

Cash said she would attend estimates “where I am the responsible minister” but in this case “Craig Laundy is the relevant minister”.

She had “issued instructions to the lawyers to have the subpoenas set aside”.

“This is a protection racket to protect Bill Shorten. Way back last year, if the AWU had produced the evidence that those donations were properly authorised, the matter would have ended there and then”.

The AWU has said the support for GetUp was approved by the union’s executive at the time.

In question time Malcolm Turnbull declared he had “complete confidence in the minister”.

He told parliament: “On the application of the union, the court has issued the subpoena. This is the third subpoena. One was substantially set aside; the other was completely set aside. Senator Cash is entitled to seek to set aside a subpoena if it’s judged not relevant.”

Turnbull said the “central issue was whether Shorten had paid the $100,000 to GetUp without authority, which would be very serious misconduct, “misappropriating other people’s money”.

The ConversationHe questioned why minutes of the relevant meeting hadn’t been produced. “No wonder people increasingly believe they cannot trust the Leader of the Opposition with other people’s money, let alone with the management of our economy”.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Cash staff member quits over media tip-offs as AWU affair backfires

Michelle Grattan, University of Canberra

The probe into the Australian Workers Union’s donation to GetUp has spectacularly backfired on the government, with a senior staffer of Employment Minister Michaelia Cash forced to quit after tipping off the media about the police raids.

Cash told a Senate committee on Wednesday night her senior media adviser had informed her during the dinner break that he had spoken to journalists on Tuesday, after hearing of the imminent raids on AWU offices from “a media source”.

Earlier, Cash had denied multiple times that she or her office had alerted the media, who were at the AWU offices even before the police arrived.

Her admission – which sparked fiery exchanges at the Senate committee – came after BuzzFeed reported it had confirmed with journalists that the information to media outlets had come from Cash’s office.

Cash told the Senate estimates hearing the tip-off was without her knowledge. She did not name the staff member, who is David De Garis.

Asked whether he had been sacked, Cash said he had walked in stating he was resigning, and then given his reasons.

Hours earlier De Garis had been present when Cash met Malcolm Turnbull.

The opposition rejected Cash’s account and has called for her resignation. Manager of Opposition Business Tony Burke told the House of Representatives: “The wrong person has resigned.

“There needs to be a resignation here because it defies credulity that senator Cash gave false information five times to the Senate and her staff said nothing.”

Cash triggered the probe – being done by the Registered Organisations Commission (ROC) – into the 2005 donation, made when Shorten was union secretary. Shorten was one of the founding directors of GetUp.

The ROC, which was established after legislation for it formed part of the 2016 double-dissolution election, launched the investigation when Cash referred the donation matter to it in a letter dated August 15.

She cited reporting in The Australian raising questions about the approval process for the donation. Both Shorten’s office and the AWU said the donation had been endorsed by the union’s national executive.

What is at issue is whether the GetUp donation was properly approved within the rules of the union.

Also, separately, under ROC scrutiny are some other donations to Labor candidates – including A$25,000 to Shorten’s 2007 election campaign.

The issues involve the civil rather than the criminal law.

The warrants for the police raids on the union’s Sydney and Melbourne offices were issued after the ROC cited information which it said “raised reasonable grounds for suspecting that documents relevant to this investigation … may be being interfered with”.

ROC commissioner Mark Bielecki, also appearing at the estimates hearing, said in an opening statement that he wanted to correct a misapprehension.

“This investigation is not into Mr Shorten. It is into the AWU’s processes for donations, including political donations,” he said.

He reiterated that the ROC had been concerned that evidence was being concealed or destroyed.

The allegation came from a caller, but ROC officials were not prepared to be drawn further.

Bielecki rejected the suggestion that the ROC could have simply asked for the documents, as the union has said. Given the circumstances this would not have been appropriate, he said.

He said the ROC in August had asked for the relevant documents and the AWU had declined, through its lawyers, to make all the documents available.

It is not clear who was De Garis’ “media source”. ROC executive director Chris Enright said the ROC’s media officer, who has been with the organisation only two weeks, had not been in touch with Cash’s office and knew no-one there.

The AWU has launched court action claiming the warrants and the investigation were invalid. This action is on hold until Friday.

The AWU’s lawyer, Josh Bornstein, said on Wednesday that the warrant and the use of 32 federal police was “a disgraceful overreach”. “We are talking here about paperwork,” he said.

Turnbull said Shorten “has questions to answer – why his union was making $100,000 donation to GetUp”, an organisation opposed to industries that employed members of the AWU.

Labor frontbencher Joel Fitzgibbon said: “This is like Nazi Germany – it’s the state moving against political opponents”.

The ConversationThe Senate estimates hearing will continue on Thursday morning.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

The case of Michaelia Cash and her leaking adviser illustrates a failure of ministerial responsibility

File 20171026 28036 pjf32w.jpg?ixlib=rb 1.1
Michaelia Cash has refused to resign over misleading parliament, claiming she was unaware of one of her staffer’s actions.
AAP/Lukas Coch

Yee-Fui Ng, RMIT University

The federal opposition is continuing to call for Employment Minister Michaelia Cash’s resignation, claiming she misled parliament this week after repeatedly telling a Senate estimates committee that neither she nor her office had any involvement in tipping off the media about a police raid.

Cash’s senior media adviser, David De Garis, later confessed he had leaked information about the raid on the Australian Workers Union’s offices to the press. Cash retracted her statements and De Garis resigned.

Labor frontbencher Tony Burke argued that “the wrong person has resigned”. But Cash has refused to resign, claiming she was unaware of her staffer’s actions. Prime Minister Malcolm Turnbull has defended Cash, saying she acted properly.

Who are these advisers?

Ministerial advisers are partisan staff who are personally appointed by ministers and work out of the ministers’ private offices.

The number of Commonwealth ministerial staff has increased over the years from 155 in 1972 to 423 in 2015.

Ministerial advisers undertake a wide range of functions. Tony Nutt, a long-time former adviser, has said:

… a ministerial adviser deals with the press. A ministerial adviser handles the politics. A ministerial adviser talks to the union. All of that happens every day of the week, everywhere in Australia all the time. Including frankly, the odd bit of, you know, ancient Spanish practices and a bit of bastardry on the way through. That’s all the nature of politics.

The question is what happens if advisers overstep their roles?

Ministerial responsibility and political advisers

According to the doctrine of ministerial responsibility, ministers are responsible to parliament for the acts of their departments.

British academic Sir Ivor Jennings wrote that the “act of every civil servant is by convention regarded as the act of the minister”. And British MP Lord Morrison proclaimed that the “minister is responsible for every stamp stuck on an envelope”.

But it is doubtful that this principle has ever reflected reality. It is rare for ministers to resign or even accept responsibility for the actions of their department, where they were not personally involved.

Ministers should also technically take responsibility for the actions of advisers in their own offices, who are at an even higher level of direct ministerial control than departments.

Even more than public servants, advisers are seen to be acting as alter egos of their ministers. This means ministers should be accountable to parliament for the actions of their advisers – even those they did not authorise.

But what happens in reality is that ministers tend to use their advisers as scapegoats and blame them for controversial events. This is consistent with “public choice” theory, which predicts that politicians have the incentive to deflect all the blame that comes in their direction while accepting the credit for anything that goes right.

How are advisers regulated?

Australia has inadequate legal and political regulation of ministerial advisers. They are subject to a Statement of Standards, which sets out the standards they are supposed to meet in preforming their duties.

Sanctions under the standards are handled internally within the executive through the Prime Minister’s Office. This means any breaches of the standards by ministerial advisers would be handled behind closed doors, without the scrutiny of parliament or any external bodies.

Ministerial advisers have also refused to appear before parliamentary committees on their minister’s instruction. This has impeded the investigations of significant parliamentary committees, including the Children Overboard affair.

Australia thus has minimal legal and political regulation of ministerial advisers. This has led to an accountability deficit, where ministers have been able to utilise their advisers to escape responsibility for public controversies and scandals.

How can we fix the system?

Other Westminster jurisdictions have more stringent regulation of political advisers.

There are a few forms of regulation of advisers. The first is restrictions on the employment of advisers, either through a cap on the numbers of advisers, as in the UK, or a cap on the total budget for advisers, as in Canada.

Second, regulations can restrict the actions of advisers themselves. For example, in the UK, there is a prohibition on advisers leaking confidential or sensitive information, which would have been applicable in this scandal.

Canada has post-employment restrictions banning advisers from becoming lobbyists for five years after ceasing their employment.

Third, transparency measures also exist, such as requirements that departments disclose all meetings that advisers have with the media (as in the UK) and what hospitality these advisers receive (in the UK and Canada).

Ideally, the Australian regulatory framework should be reformed so it is policed externally from the core executive. In Canada, the conflict of interest and lobbying provisions are policed by the Conflict of Interest and Ethics Commissioner, who has been independent and ready to criticise the government.

And, in the UK, the rules provide for political advisers to appear before parliamentary committees. Similar guidelines could be drafted to facilitate the appearance of advisers before Australian parliamentary committees.

The ConversationIn the last 40 years, ministerial advisers have become an integral part of Australia’s system of government. But the law and rules have lagged behind, and our system should be reformed to ensure greater accountability.

Yee-Fui Ng, Lecturer, Graduate School of Business and Law, RMIT University

This article was originally published on The Conversation. Read the original article.