Prosecutors are now considering whether to lay charges over the leaks to the media from jobs minister Michaelia Cash’s office about the raids on the Australian Workers’ Union. The move follows the Australian Federal Police (AFP) handing over a full brief of evidence from its investigation.
“The Australian Federal Police has referred a brief of evidence to the Commonwealth Director of Public Prosecutions (CDPP) for assessment,” an AFP spokesperson told BuzzFeed News on Tuesday.
“The matter relates to an investigation into the alleged unauthorised disclosure of information concerning search warrants executed in support of a Registered Organisations Commission investigation.”
A spokesperson for the CDPP confirmed a full brief of evidence from the case was handed over on Monday.
“The brief will now be assessed in accordance with the Prosecution Policy of the Commonwealth to determine if a prosecution should be initiated,” the CDPP said.
Internal AFP documents published by BuzzFeed News reveal police have been investigating the offence of “unauthorised disclosure of government information”, which carries a maximum two-year jail term.
Under Australian law: “A person who publishes or communicates, without lawful authority or excuse, any fact or document which came to his or her knowledge, or into his or her possession, by virtue of being/or having been a Commonwealth Officer, and which is not his or her duty to disclose, commits an offence.”
The AFP and CDPP told BuzzFeed News they couldn’t answer any further questions as the matter is still under investigation.
At a case management hearing on Tuesday morning regarding the ongoing Federal Court challenge by the AWU into the “improper political purpose” of the raids, the AFP sought to maintain its claim of public interest immunity for another four weeks.
The AFP has maintained a claim of public interest immunity (PII) since its investigation began on Oct. 25, allowing police to refuse to answer questions or provide documents on the grounds that it may be prejudicial to its ongoing inquiries.
Lawyers for the AFP have requested a four-week extension on its claim of PII, as its investigation has not been completed.
The trial date, set for Sept. 3, is expected to be adjourned.
The AFP previously indicated to the court it expected its investigation would be concluded by the end of July. It has now been running for over 10 months.
The union has successfully argued its Federal Court challenge be delayed until it can be granted access to three confidential AFP affidavits relating to the raids, which have only been seen by the police and a judge. This can only happen after the AFP’s investigation is complete.
Another day, another press conference where the Minister doesn't want to answer questions about the AWU investigation @politicsabc #auspol https://t.co/e85Xxt1SeY
“We do believe that an offence may have been committed, hence our request for the CDPP for some assessment of our material,” deputy commissioner Leanne Close said earlier this month.
But the deputy commissioner wouldn't tell Senate Estimates how many crimes the AFP believe may have been committed or how many people may have broken the law.
Last week Cash refused to say if she has been interviewed by the AFP. She claimed she is not under investigation. But the AFP has refused to rule in or out if it is investigating Cash, Michael Keenan, or any other ministers. It has also refused to say whether Cash may have committed an offence.
BuzzFeed News revealed last year that Cash's former senior media adviser David De Garis had tipped off several media organisations about the raids. In February, a journalist claimed they received a phone call from then justice minister Michael Keenan’s office informing them of the raids before they took place.
The raids were part of an investigation by the Turnbull government–established watchdog, the Registered Organisations Commission, into donations made by the union over a decade ago, when it was led by current Labor leader Bill Shorten.
Cash denied her office had any involvement in the leak five times in Senate Estimates last year, before announcing her senior media adviser was behind it and had resigned.
The minister’s taxpayer-funded lawyers have yet to challenge a Federal Court subpoena issued in May to produce documents or appear in person to give evidence about the leak, despite Cash calling a press conference three months ago to announce she had instructed them to do so.
Subpoenas were also reissued to De Garis and former Fair Work Ombudsman official Mark Lee, after being first sent out in March.