The ongoing legal dispute surrounding the University of Sydney Union (USU) Executive’s attempts to remove Tom Raue from his current position as Vice-President reached a climax last week when the matter was heard before the Supreme Court of New South Wales.
Despite a number of procedural delays, Justice Bellew presided over the case on Friday, November 15. The hearing was attended by several students from the Grassroots faction, of which Raue is a member, as well as Board Directors Tim Matthews, Kade Denton, Tara Waniganayaka, and Bebe D’Souza — who was the only Director choosing to sit with Raue. In keeping with previous hearings, Raue was represented by Doust, whereas Sirtes, senior counsel to the defendants, was joined by junior counsel, and solicitor Ben Urry of Kemp Strang, the USU’s legal advisory firm.
President Hannah Morris, in conjunction with Honorary Treasurer Sophie Stanton and Honorary Secretary John Harding-Easson, initially announced a motion notice on September 30 to move a Special Resolution calling for Raue’s dismissal after he disclosed part of a confidential USU report to Honi Soit. The leaked information indicated University management operated contrary to the rigid stance of non-collaboration it has espoused throughout the year, and instructed police movements to some extent during industrial action undertaken on Open Day, August 31.
However, the Meeting at which the Special Resolution would be put to a vote to the USU Board of Directors was postponed due to an interlocutory injunction granted by the Supreme Court on October 10, less than 24 hours before the Meeting was scheduled to occur.
The civil proceedings Raue has brought against Morris and the Board of Directors contests the Constitutional validity of the Board’s authority to dismiss Directors, in addition to challenging the allegation of “serious misconduct” which forms the basis of the Special Resolution. A bipartite claim, the Resolution asserts that Raue is “guilty” of (i) breaching his “fiduciary duty to the USU”, namely referring to a failure to comply with the USU Regulations and Directors’ Duty Statements as well as the Handling of Grievances Policy, and of (ii) making improper use of information.
At the directions hearing where the injunction was granted, counsel advising the plaintiff and the defendants outlined their arguments for the final hearing. Doust impugned the fact that section 3.1.4(a) of the Regulations, which the Resolution cited as the policy governing the expulsion of Directors from office, lies within the legal ambit stipulated in the USU Constitution. Moreover, she contended that Raue was not guilty of “serious misconduct” as the nature of the leaked information was not strictly confidential.
Conversely, Greg Sirtes SC affirmed the confidentiality of the leaked information, putting forth that Raue was aware of his obligations to discretion and acted in wilful defiance of them. Sirtes went on to argue that the Special Resolution was legitimate insofar as the Constitution broadly empowered the Board to enact regulations, such as those pertaining to the potential deposition of its Directors.
First on the witness stand was Raue, who was cross-examined by Sirtes for approximately an hour. The questioning began by scrutinising the confidentiality of the leaked information. Sirtes pointed to the word “confidential” being used by Raue to describe the information he disclosed in an initiating email to Honi Soit, and the word in a similar context appearing again in the resulting published article. In response, Raue maintained that when read in context, it can be reasonably understood that “confidential” related to the USU not wishing the information to become publicly available, not that the information was inherently private in and of itself.
Defence counsel proceeded to call into question the credibility of the way the leaked information was framed. When asked whether the police officer quoted in the report was speaking singularly or with the authority of the NSW Police Force, Raue defended the significance of the anonymous officer’s comments. “It is especially important because they were not authorised to speak,” said Raue, who summarised that the candid verbal exchange between the officer and USU staff member was much more likely to be “revelatory” than a rehearsed statement delivered by a police spokesperson.
The relationship between Raue and Honi Soit editor Hannah Ryan also came under fire. When asked why he chose not to inform the USU of this conflict of interest at the time he made Morris, Stanton, the USU CEO Andrew Woodward, and the USU Human Resources Manager Sandra Hardy aware of his decision to leak part of the report, Raue replied that he believed the relationship to be common knowledge, and simultaneously, irrelevant to the matter at hand.
Raue’s history of being victimised by police during on campus protests was likewise the subject of intense scrutiny, with a personal account published in Honi Soit of his experiences at the May 14 strike entered as evidence. When interrogated on how he “internally reconcile[s] [his] obligations as a Director and [his] strong views on police brutality,” Raue said he prioritises his Directorial duties, but, since it is shaped by his background and beliefs, his interpretation of USU policy likely differs from that of the other Directors.
Sirtes inquired whether Raue believed himself to be a “custodian of the public interest,” and in a follow-up question which was quickly disallowed and withdrawn, Sirtes asked if Raue considered himself to be “similar” to Julian Assange.
Additionally, Sirtes questioned Raue’s decision not to declare his personal experiences and views on police brutality in his affidavits, or to Woodward or Hardy as a “conflict of interest” when he discussed with them his intention to leak part of the report. Sirtes linked this aspect of non-disclosure to an intention held by Raue to misuse the information as a “personal axe to grind”. The plaintiff rebuffed this characterisation, stating that his position on police brutality was formed long before the May 14 incident, and that photographic, video, and witness evidence of students being brutalised by police during on campus demonstrations was well-documented.
Raue reiterated his belief that the leak was made in the “public interest”, to which defence counsel took particular objection. Sirtes inquired whether Raue believed himself to be a “custodian of the public interest,” and in a follow-up question which was quickly disallowed and withdrawn, Sirtes asked if Raue considered himself to be “similar” to Julian Assange.
Second on the witness stand was Hardy, who, during an equally lengthy cross-examination by Doust, established that the confidential report resulted from complaints filed by two USU employees, Zachary Ruokari and Events Manager Lee Devereux in relation to protest action, particularly “invasions” of the USU stage, conducted on Open Day. In Hardy’s affidavit, she asserted that correspondence with Morris prior to the formulation of the report had not only discussed how Morris believed Raue to have breached his fiduciary duties in participating in the protests, but also how Raue’s involvement in the protest was identified in the complaints.
Raue corroborated this during his cross-examination, stating that Hardy had assured him the report did not concern him personally. But, during her cross-examination, Hardy made a number of contradictory claims, both accepting that he was not specified in the complaints when the question was put to her by Doust, and later asserting that he was in fact named. This disparity is complicated by an email sent by Hardy requesting “real evidence” of USU staff being “threatened or endangered by a Board Director” in support of the Open Day complaints, although she denied seeking this information in relation to a particular Director.
More significantly, it was established that Hardy had not adhered to the Handling of Grievances Policy in the creation of the report, which Doust suggested effectively rendered the document invalid as a Grievance Report for the purposes expressed in the Special Resolution. Hardy admitted to failing to afford Raue procedural fairness by not providing him with a copy of the complaints or allowing him a chance to respond before concluding the investigation, despite naming him as a “respondent” and a “relevant witness”. This, in turn, cast serious doubts on the confidentiality of the report as confidentiality was bestowed by the document’s status as a Grievance Report.
Hardy’s alleged negligence in the handling of the complaints was aggravated by an email to Morris, where Hardy expressed concern over whether the course of action taken by herself and the Executive was “deceitful”. In her investigation, Hardy interviewed Harding-Easson and a number of other Directors who did not attend Open Day, whilst choosing not to speak to D’Souza or Raue who were both in attendance. Despite being a member of Executive who had initiated the Special Resolution, Harding-Easson has not made an appearance at any of the court proceedings, making him the only Executive member liable of this. When approached for comment about his notable absence, Harding-Easson replied that he was “advised not to comment whilst [the matter] [was] before the court”.
Next on the witness stand was Woodward. He echoed Hardy’s claims that Morris viewed Raue’s presence at the Open Day protests as constituting a breach of his fiduciary duties to the USU, and even went so far as to say that it was the “implied purpose” of the investigation into the complaints. It was also revealed that Woodward disclosed the contents of the report to Vice-Chancellor Michael Spence in an email on September 25, thereby undermining the document’s confidentiality. Although he conceded to understanding the confidentiality surrounding the investigation, he maintained that Hardy did not inform him it was leading to the preparation of a Grievance Report, which, as previously established, would have called for “absolute confidentiality”.
Transcribed in its entirety below and made public for the first time, the email from Woodward to Spence was originally redacted in response to a GIPA request for information pertaining to the USU’s dismissal of Raue, filed by a student last month. The correspondence primarily aimed to reassure the Vice-Chancellor that the USU report stemmed from an internal investigation which did not concern itself with the existence of a relationship or correspondence between the University and police.
From: Andrew Woodward [mailto: A.Woodward@usu.usyd.edu.au]
Sent: Wednesday, September 25, 2013 7:17 PM
To: Vice Chancellor
Subject: Honi Soit Article
Dear Vice Chancellor,
I wanted to provide some clarity for you around the piece in this week’s Honi Soit (New evidence indicates University collaborated with police at strikes).
The confidential report referred to in the article was an internal investigation into the potential danger to staff posed by protestor activity. The investigation was carried out to ascertain that the safety of USU staff working during the 2013 Open Day was not compromised.
As you would know, the USU has for at least the last 20 years worked closely in collaboration with the University on this important event. This year our participation included the provision of entertainment on the main stage and the presence of 20-or-so clubs and societies on the Front Lawns.
At two points during the day protestors invaded the USU stage, interrupting the student performances. I regret to say that USU Vice President Tom Raue was a participant in the stage invasions.
Our Human Resources Director undertook an investigation the following week to see to what extent staff had been threatened and equipment had been damaged (in taking the stage protestors shoved staff and disconnected microphone cables). The President also wanted to determine whether Mr Raue had breached his duties as a director in participating in the activity.
With the involved staff’s permission I can tell you that at the time of the second stage invasion the USU Event Manager asked a police officer if police could remove the protestors from the stage. The officer replied something to the effect that police had been instructed by the University not to engage with the protestors unless there were fears of violence. He added that it’s often best to let the protestors have their moment and then fade away. In both instances this is what happened.
The investigation we undertook was solely about the staff safety and whether Mr Raue’s involvement constituted a breach of his duties sufficiently serious to warrant disciplinary action on the part of his fellow directors. It was not concerned about any relationship the University may or may not have with the NSW Police Service; nor was it concerned about any instructions that may or may not have been issued by the University to the NSW Police Force.
Mr Raue, as a Director and as someone interviewed as part of the investigation was entitled to see the report. Against my counsel and the instruction of the President, he chose to pass on the contents of the report to Honi Soit. No one from the USU was contacted by Honi Soit to comment on the report’s contents. As a result, the report has been quoted entirely out of context and, I believe, the USU’s reputation has been damaged in the process.
This matter, including Mr Raue’s continued presence on the USU Board, will be discussed at a meeting of the Board this Friday.
I will inform you of any action the Board decides to take.
Chief Executive Officer
University of Sydney Union
What the email did contain was confirmation that the investigation involved determining whether Raue’s participation in the protest embodied a “breach of his duties sufficiently serious to warrant disciplinary action on the part of his fellow directors”, which aligned with statements made by Hardy on the stand. The letter also described Raue as having been “interviewed as part of the investigation,” which was a claim rejected by the testimonies of both Raue and Hardy.
The final three witnesses called to the stand were Devereux, Stanton, and Morris respectively. Under cross-examination by Doust, Devereux offered that she had related the circumstances surrounding the complaint, including her verbal exchange with a NSW police officer, to her colleagues at the USU, to Gaylene Yuen, the University’s Events and Outreach Manager, and to her superior, Programs Director Alistair Cowie.
Again, ambiguity is thrust upon the confidential nature of the report. This admission from Devereux, as one of the two complainants, is particularly noteworthy because Morris later agreed with the proposition put forward by Doust that had Raue learned of the content of the conversation between Devereux and the police officer via some other means, for example through a conversation with a USU staff member, then the controversy around his disclosing that information to Honi Soit would be negated.
Morris went on to oppose Woodward and Hardy’s claims that the investigation was used as a vehicle to examine whether Raue’s presence at the Open Day protests was grounds for his dismissal. She stated that she “at no stage expressed a wish that there be an investigation into [Raue’s] conduct”, but this response does not satisfy the originating question of why she was given access to the report to begin with. The complaints were filed internally with the HR department and were not associated with the Board — unless a Director was somehow implicated. Morris parried this suggestion by postulating that although Raue’s presence at the protest, as USU Vice-President, naturally brought him into the investigation, he was not the focus of it.
Nonetheless, she conceded that the report should have been prepared with Raue’s consultation. Apprehensions were also raised about the issue of confidentiality with respect to Morris’ circulation of the report to Harding-Easson and Stanton, but the question was not resolved.
The November 15 hearing concluded with the cross-examination of Morris, but it has not been heard in full and remains sub judice. The case is adjourned until December 6, with the interlocutory injunction extended until December 9.
When approached for comment on the matter of the USU funding the defendants’ legal proceedings, Morris answered that they had not yet “received the invoice for total expenses”, but that Union members were entitled to inquire after it at the Annual General Meeting in 2014, where the Financial Statement would be made available. Morris also stated that herself and the other defendants were attempting to minimise legal costs “where [they] can”, but were otherwise compelled to follow due process.