Police were prevented from arresting Labor MPs over ‘red shirts’ rort: documents

Police were prevented from arresting Labor MPs over ‘red shirts’ rort: documents

11/11/2021

Detectives in Victoria Police’s fraud squad urged force command to consider arresting and prosecuting up to 16 Andrews government MPs over the “red shirts” rorting affair, according to highly sensitive internal police briefings, but their plan was knocked back by senior officers.

The secret police files from late 2018, the contents of which have been confirmed by three whistleblowers, reveal that detectives were directed by high-ranking officers to make sure that 16 named members of Parliament “not be arrested, photographed, searched if they are interviewed”.

The files also stated the intervention by senior police was to remain a secret.

A Labor supporter wears the “red shirt” for Daniel Andrews’ election in 2014.Credit:Scott Barbour

The documents show police were frustrated that Labor MPs refused to co-operate with detectives and subject themselves to interviews. But the files, including an operational briefing note sent to force command, reveal detectives believed it was still possible to prosecute the MPs “even though no formal interviews have been conducted”.

The secret police files add weight to a previous media report detailing concerns that police command did not go harder when it came to the alleged role of Labor MPs in the rort. The Ombudsman found the Labor Party misused $388,000 in taxpayer funds by falsely signing timesheets for Labor field organisers and campaigners to pay them for ALP work in the 2014 state election.

One document describes how a high-ranking officer had overruled aspects of an “operation order” drafted by detectives, and directed investigators to treat MPs differently to other targets in the same inquiry.

Three police sources have separately told The Age that detectives believed they were leant on by senior officers to treat the MPs differently to civilian criminal suspects because of fears of political blow back. No MPs were questioned as part of the investigation, but 17 former Labor staffers were arrested in the early hours of the morning and taken in for questioning in 2018 on accusations of making false documents. One, Jake Finnigan, spoke at the time of being subject to a strip search.

Jake Finnigan was arrested and searched in the investigation of Labor’s “red shirts” affair, even though he was one of the whistle blowers.Credit:Jason South

A source close to the MPs said that it would have been “total overkill” for police to arrest, raid or search the MPs after their legal representative, leading criminal defence lawyer Rob Stary, had instructed force command they would not voluntarily co-operate with investigators seeking interviews and instead exercise their right to silence if arrested.

“It was the investigators acting politically, and we would have complained to IBAC if police had gone in too hard,” said the source, who also stressed the ALP believed that evidence to charge any MPs never existed as their conduct was not prohibited under the Crimes Act.

The police files relate to operation Ocotillo, a 2018 probe into the red-shirt allegations. Operation Ocotillo was prompted by a scathing 2018 report by Ombudsman Deborah Glass into the affair.

Former minister Adem Somyurek, who is facing an anti-corruption investigation into a separate alleged rort by Labor MPs, tried this week to distance himself from the red shirts affair. He said he had told Premier Daniel Andrews of his concerns in 2014 that public funds were being misused for political campaigns, but that the then opposition leader had dismissed his concerns.

Adem Somyurek gives evidence before IBAC on Thursday.Credit:

But the 2018 police files name Mr Somyurek first on the list of those detectives wished to question. The Age has chosen not to name the other MPs for legal reasons. Mr Andrews is not among them.

Mr Somyurek told the IBAC inquiry that the failure by the Ombudsman or police to act decisively had emboldened Labor MPs to continue misusing taxpayer funded resources for party political purposes.

The police files, described in briefings from sources who could not be named for fear of losing their jobs, cast fresh light on internal tensions in the force over how hard to push the 2018 investigation.

In February and October 2019, senior police advised they had sought advice from the Director of Public Prosecutions and would not prosecute any person over the scandal, although this legal advice has never been released.

Detectives were told to describe MPs as “persons of interest”, not “targets” and were prevented from obtaining MPs’ phone records.

Three sources with knowledge of the police inquiry said the investigation did not pursue all possible avenues and that a more robust approach of laying a criminal charge, or raiding and arresting select MPs, might have opened up fresh lines of inquiry or prompted suspects to co-operate with police.

The 2018 files describe how fraud squad detectives had been reviewing evidence gathered by the Ombudsman’s inquiry and making their own inquiries before determining they “needed to” focus their investigations on a “connection or nexus between timesheets filled out by Labor Party field organisers and the signing of these time sheets by MPs”. A senior barrister they hired to advise police, Paul Holdenson, QC, also advised detectives to zero in on this issue.

To do so, according to the documents, the fraud squad created an “Operation Order in relation to the interviewing of 16 MPs or former MPs for the criminal offence of make and use a false document”.

Police documents also reveal that detectives intended to arrest, fingerprint, photograph and conduct a record of interview with some of the 16 serving or former MPs between October 15 and 18, 2018. A policing source said investigators believed they had the power to lawfully search and arrest some of the politicians and request they undertake a record of interview.

Victorian Ombudsman Deborah Glass. Credit:Penny Stephens

Police typically arrest, fingerprint, search and photograph suspects in many criminal cases, with the element of surprise and show of police intent sometimes encouraging suspects to co-operate with authorities rather than seek or follow legal advice.

But the detectives’ arrest plan was changed when senior police intervened, directing detectives to change their operational order.

“There were multiple changes to the Op Order” and the order had to be “revised” a police file from late 2018 states. The files also state police were “directed” by high-ranking officers to ensure “that the parliament members (MPs) not be searched, photographed or arrested if they are interviewed”.

The file says the intervention by senior police was to stay secret.

Briefing notes distributed among detectives stressed there must be “no mention of this information" to other police or anyone else, sources said.

Sources said that the detectives’ operation order was amended multiple times by force command to ensure detectives subjected the politicians to no invasive police powers. One policing source also said detectives were told to describe MPs as “persons of interest” rather than “targets”, were prevented from using their powers to obtain MPs’ phone call records and directed a senior officer to liaise with suspect MPs, rather than investigators.

After the direction not to arrest and interview MPs, and the MPs’ refusal to conduct voluntary interviews, a police briefing note from October 2018 stated that investigating detectives had told their superiors that charges could still be laid.

The note stated it was the detectives’ “recommendation that prosecution of the 16 MPs and former MPs be considered, even though no formal records of interview are provided”, one of the sources said.

Senior police were also told the fraud and extortion squad would still “provide complete briefs of evidence dealing with the 16 MPs/former MPs even though no official record of interview exists”.

By October 18, according to the files, police had completed briefs of evidence against four Labor field officers who had been arrested and searched, including three who had provided “comments during their record of interview”. Mr Holdenson had also provided preliminary legal advice to police when the recommendation by detectives to their superiors to consider a prosecution was issued.

The police briefing note also details how Mr Stary, the lawyer for all 16 serving and former MPs, communicated with a senior officer on October 15 and 16. In these communications, Mr Stary told police his clients “refused the opportunity to participate in a formal record of interview”.

While detectives do not have the final say about a prosecution — that is the task of senior police or the Director of Public Prosecutions — their views can influence the decision of senior police to prosecute. Police do not need to rely on DPP advice before charging a person, but they usually defer to the DPP in high-profile cases. In August 2018, Chief Commissioner Graham Ashton told State Parliament that police were following the “letter of the law” in Operation Ocotillo.

On Thursday, a police spokesman said the force would not comment about the operation, but advised the force was assessing a fresh request to reopen the probe.

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