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Australian Federal Police to pay union’s costs over botched raid

in Employment Law by Slater and Gordon on
Australian Federal Police to pay union’s costs over botched raid

The Australian Federal Police (AFP) has been ordered to pay the majority of the legal costs incurred by the CFMEU in its successful Supreme Court challenge against the AFP raid of the union’s Canberra offices in August 2015.

Slater and Gordon represented the CFMEU in its court proceedings challenging the lawfulness of the police raid and subsequently in relation to the CFMEU’s legal costs.

What happened?

AFP officers attached to the Trade Union Royal Commission police taskforce raided the offices of the CFMEU ACT Branch on 25 August 2015.

That raid took place over more than 12 hours, which meant the AFP’s initial search warrant expired and they were required by law to seek a second search warrant during the raid.

After the raid

Shortly after the raid, Slater and Gordon successfully issued proceedings seeking an injunction against the AFP using the material seized.

The injunction was granted on 17 September 2015 and the case was later heard by Justice Richard Refshauge of the ACT Supreme Court over 3 days in October 2015.  Both AFP officers and CFMEU officials gave evidence in the proceeding. 

The law required that the AFP allow CFMEU officials to observe what the police were doing during the search.  During the proceeding, the AFP argued that the CFMEU officials were only limited from observing the raid for a short period of time due to the deployment of AFP Bomb Technicians in the union office. The CCTV footage however showed the easily identifiable bomb technicians walking into the CFMEU office, carrying only a ladder, goggles, a mobile phone and McDonalds. The CFMEU strongly argued that there was no safety risk, no necessity for a bomb squad in a union office and that the AFP was in fact denying the CFMEU an opportunity to observe the raid.

What did the Supreme Court Justice rule?

Justice Refshauge ultimately agreed with the CFMEU’s argument that the AFP had failed to follow correct procedures when executing the search warrants. Justice Refshauge also ruled that the second warrant was invalid due to the AFP’s failure to disclose necessary information to the Magistrate issuing the second warrant after hours.  For this reason Justice Refshauge ruled that the Magistrate issued the second warrant on a false basis.

Justice Refshauge ruled that the CFMEU had been sufficiently successful to justify an order that the AFP pay the CFMEU’s costs, although his Honour allowed the AFP to make further submissions to challenge that order.

The AFP and CFMEU both made submissions on the costs issue, and in February 2017 Justice Refshauge dismissed the AFP’s challenge and upheld the costs order. Slater and Gordon lawyers have been working to ensure that the CFMEU recovers from the AFP the full amount due under the costs order.

After the AFP’s challenge to the costs order was dismissed, Dean Hall, ACT secretary of the CFMEU, told Workplace Express that the police should be “policing for the community” rather than being used as a “political weapon”.

“I think it's a disgrace that the Liberal Government has politicised the police force like this,” Hall said.

At the time of Justice Refshauge’s first judgment, Dave Noonan, National Secretary of the CFMEU’s Construction and General Division, said: “What we see in this case is a clear politicisation of the Australian Federal Police. That such substantial resources were devoted to this raid smacks of overkill for purely political purposes”.