Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

I rise to speak on the three bills that are being moved cognately: the  Law Enforcement Integrity Commissioner Bill 2006, the Law Enforcement Integrity Commissioner (Consequential Amendments) Bill 2006 and the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006. Labor agrees with and certainly supports the intent of these bills. In fact, it is a shame that we could not have been here debating them much earlier. The genesis of the Australian Commission for Law Enforcement Integrity appears to have derived from a reference by the then Labor Attorney-General, Michael Lavarch, sent to the Australian Law Reform Commission more than 10 years ago. The Australian Law Reform Commission recommended that such a body be set up in its report of November 1996. It then took the Liberal Party from 1996 to June 2004 to adopt this proposal as party policy.

Needless to say, it is clearly a hallmark of Senator Ellison’s handiwork that this sort of delay seems to be commonplace. Not only did it take those eight long years for the Liberal Party to adopt this as party policy; it then took Senator Ellison a full two years to get his act together and bring the bill before the parliament. Yet in the same period we have seen numerous rushed changes to the terrorism acts and other laws affecting the powers of the AFP and many other agencies, but still no action was taken on this issue. The government seems simply not to see that, when you give agencies wide new powers, making sure there is robust oversight in place at the same time is critical. Although funding for the Law Enforcement Integrity Commissioner was then announced in the 2005 budget, the bill itself has been sitting on the forward list of urgent bills for well over a year.

At this point let me state unequivocally for the public record that there is no evidence—and we accept that there is no evidence—of systematic corruption in Australian Commonwealth law enforcement agencies, and I think it is important that we have been served so well by these agencies. Yet there are some isolated instances of concern. In the time that it has taken between the announcement of this bill and the present day that we are here debating the bill, we have seen the leaked secret internal Customs report that blew the lid on corrupt and criminal activity at Sydney airport, sparking the Wheeler review. We have seen a couple of Australian Crime Commission seconded officers charged in relation to corruption offences. We have seen extraordinary allegations made in relation to corruption of Commonwealth officials from a range of agencies in the Torres Strait.

The public can and should have confidence in the integrity of the Australian Federal Police, the Australian Crime Commission and the Australian Customs Service officers who do an exceptional and excellent job in protecting the community from some pretty awful threats of terrorism, drug trafficking, sex slavery, child pornography and many other crimes. But we need to acknowledge that crime is big business. There are huge amounts of money involved, and history shows us that criminals are willing and able to corrupt serving officers to stay a step ahead of the law. It is absolutely vital, therefore, having seen some instances and seeing the potential is so great, that the long overdue integrity commission will finally be established. Likewise, the AFP’s new professional standards regime is clearly a marked improvement on the current arrangements. This is even more the case because, since September 11, our nation’s law enforcement agencies have had a dramatic increase in the range and availability of powers that they can use.

Some five long years after September 11, the Howard government is still fiddling with many of these powers on a semiregular basis which, I have to say, does not give us a lot of confidence in their ability to rapidly assess an emerging threat and coordinate and deliver a proportionate response. At the same time as these powers are being expanded, even if piece by piece, the oversight regime has until now largely remained frozen—partially, of course, due to the minister’s inability to progress this legislation and partly because the government persistently fails to take a long-term strategic view of what government infrastructure is needed for our security services. The government’s arrogance and incompetence seem to be becoming a security risk for the nation.

This legislation goes some way to striking the right balance of strong powers with strong oversight. To paraphrase Dr AJ Brown, who appeared before the Senate Legal and Constitutional Legislation Committee when examining this legislation, these bills represent the most significant change in Commonwealth integrity institutions in 20 years. Accordingly, as I have already said, let me foreshadow Labor’s broad support for this legislation before I go on to the specifics of how this legislation is not as good as it could be. Perhaps this is an appropriate moment to move the second reading amendment which has been circulated in my name. I move:

That all words after “That” be omitted with a view to substituting the following words: “whilst not declining to give the bill a second reading, the House:

(1)

notes that it took the Howard Government almost seven years to commit to a policy of establishing a Law Enforcement Integrity Commissioner since the November 1996 Report 82 of the Australian Law Reform Commission entitled “Integrity: but not by trust alone. AFP & NCA complaints and disciplinary systems” first recommended a Federal independent anti-corruption commissioner;

(2)

notes that it has taken the Howard Government since June 2004 to bring actual legislation before the Parliament, creating a delay of almost ten long years in total;

(3)

notes that, despite the fact that the Australian Customs Service officers have:

(a)

use of weapons including pistols and maritime deck mounted guns;

(b)

powers of arrest and detention;

(c)

powers of search and seizure;

(d)

ability to conduct controlled operations;

(e)

responsibility for collection of large amounts of border-related revenue;

(f)

responsibility for storage of large amounts of contraband and dutiable goods like drugs, alcohol, tobacco, knives, guns and ammunition;

(4)

notes that there are a range of other Commonwealth agencies with law enforcement style powers that should also receive oversight, such as the Department of Immigration, which under the Howard Government’s maladministration wrongly held 26 Australians in Immigration detention; and

(5)

is opposed to the Government’s proposed system of adding and subtracting agencies other than the AFP and ACC by regulation, noting such a system would effectively allow the Minister a veto over corruption investigations”.

You can see, Mr Deputy Speaker, that, whilst we support this bill and think it is an important step towards making sure that an appropriate oversight mechanism is in place, we are extremely disappointed by the fact that the integrity commission has been given such a narrow jurisdiction to start off with, extending only to two agencies—the Australian Federal Police and the Australian Crime Commission. Given the number of agencies at a federal level which wield law enforcement powers, including the Australian Taxation Office, Customs, the Department of Immigration and Multicultural and Indigenous Affairs and others, this is a massive error.

Let me remind the House of just what, for example, the immigration department has been up to under the life of this government. This chamber of horrors masquerades as a department of state while it has committed the following outrages: wilful ignorance of the law in relation to the duration of detention, specifically the test under section 196 of the act and in direct contravention of numerous Federal Court precedents; supervision of an institution that, according to newspaper reports, allegedly allowed repeated rape and sexual abuse of detainees, including one reported instance of rape of a mother in front of her toddler; supervision of an institution that has certainly treated detainees with mental illness extremely poorly, including very young children; wrongful detention of no fewer than 26 Australian citizens, and it is still not clear whether this includes the tragic case of Cornelia Rau; deportation of one citizen, who was apparently not fit to travel, to the Philippines to survive off a charitable home for the poor and crippled; transport of five detainees locked up in the back of a van for five hours without food, water, toilet or rest breaks; export of women and children to the island quarry of Nauru; placing even mothers in the act of labor under guard and refusing the right of the family to take photographs of the newborn; and abrogation of its duties to properly supervise contractor GSL or, alternatively, deliberate connivance with that organisation to conceal or cover up, using what the ANAO has called ‘considerable discretion’ as to what is reported as an incident.

The purpose of going through that whole list of these terrible actions that the department of immigration has been responsible for is to ask: would all or some of this conduct constitute behaviour that fell within the Law Enforcement Integrity Commissioner’s ambit? The definition of ‘engages in corrupt conduct’ under section 6 turns not on monetary gain but on abuse of office. Consider for a moment whether you could capture wilful ignorance, dereliction of duty and abuse of power in those terms. Yet, even if these actions were covered by those definitions, when we turn to the definition of a law enforcement agency, we find something missing: the department of immigration, the inflictor of so much human misery on so many people, all the while glibly and often wrongfully maintaining its authority to enforce the law, has in fact been left off the list of law enforcement agencies that are going to be covered by the remit of this new body which is being set up.

Other agencies are missing too—Customs, for example. They have uniforms, guns, powers of arrest and detention, powers to question, search and seize et cetera. To a member of the public, when undertaking these duties, Customs would be a law enforcement agency. Yet, while they hold almost identical powers to the police when undertaking certain aspects of their job, we find them missing from the list of law enforcement agencies that these bills and the new institution will cover. There are other agencies, such as the Australian Securities and Investments Commission and the Australian Taxation Office, that have investigatory and law enforcement powers and, when using those powers, the public might rightly expect that they would still have an oversight body to see whether they were using those powers appropriately or whether there was the potential for corruption, whether there was an abuse of office or whether some officers had been engaged in corrupt conduct as defined within this bill. They have, after all, access to stored communications and they can issue notices to produce. Obviously, bodies that have and use these sorts of powers would benefit from oversight—and not just actual oversight but also an awareness that oversight exists.

Instead of putting agencies such as these in the legislation, the minister proposes to add them at his whim and convenience by regulation. There is no guarantee that any of these agencies will be able to be investigated, and that is completely unacceptable. Why should the minister have a roving discretion to decide when an agency should or should not be investigated for corruption? Perhaps the minister and the government members can explain the public benefit in a minister maintaining the power to add and remove agencies at whim. Not only that but also I think it is an abrogation of our duty, in both this House and in the other place, to debate whether or not these agencies should or should not be covered. Instead, it will just be instigated by regulation, presumably some sort of disallowable instrument, which can come in or out of this parliament relatively quickly.

It is not only a dumb policy but also dumb politically and it detracts from what is otherwise an important change to our institution of government which is providing the public with more confidence in the officials who are undertaking these sorts of powers and responsibilities for the government. It shows that this government has simply got tired and lazy and is so obsessed with other issues, such as its extreme ideology, that it has forgotten what is of concern to Middle Australia—protecting the institutions of government that maintain their security day in and day out. It seems to me that it is all too ready to be kicked out of office and that some of these things can be planned and advocated for in a more serious long-term way for the protection of our institutions of government.

There are not that many federal agencies that the government could not have already contemplated all of them. How hard is it to sit down, work out what powers each agency has and make a final and definitive determination as to whether they are in fact law enforcement agencies or are exercising law enforcement powers so akin to a law enforcement agency to warrant their being treated as such for the purposes of this oversight? I really do not believe that it is beyond the wit of the officers of the various departments involved to do this. I do not believe it is beyond the wit of those who are sitting in this chamber to listen to it. I do believe it is beyond the wit of the government to make a decision on what they do or do not want covered and that makes this bill much less effective than it could be. That is what a sensible government would do—thoroughly approach its task on national security and make good policy. Sadly, we have a government that is not interested in any of those things.

Let me now address a number of issues specifically for each of the bills that are before us in this debate. The Law Enforcement Integrity Commissioner Bill essentially establishes the Australian Commission for Law Enforcement Integrity, which is an anticorruption body responsible for investigating allegations of corruption concerning the Australian Federal Police and the Australian Crime Commission as well as state police officers seconded to those bodies. The number of overseen agencies, as I have already flagged, can be expanded by regulation. Labor totally rejects the ministerial power of veto on corruption investigations, a point I have already made, which this mechanism effectively gives the minister. The commission will have powers similar to that of a standing royal commission. Essentially, the Commonwealth is following the lead of the states, many of which have set up similar bodies with similar powers to this commission.

I mentioned previously that, thankfully, there is no evidence of systematic or serious corruption within the Australian Crime Commission or the AFP. The situation we have here is completely different, for example, to the endemic corruption of the National Party regime led by Joh Bjelke-Petersen in Queensland, whose conduct was so bereft of anything approaching moral or ethical behaviour that it demanded the establishment of the Criminal Justice Commission, the forerunner of the Crime and Misconduct Commission. At least the community can rest safe knowing that there is not going to be another National Party government again not just here but anywhere ever—but that is probably another story that we do not need to go into today. The establishment of this anticorruption commission is intended instead to provide a deterrent to such behaviour in the future as well as to enhance public confidence in our federal crime-fighting bodies. I think that, as I have mentioned before, this is particularly important when we have been giving a range of these organisations so many new powers, for which there is significant concern in the community. Balancing those strong powers with strong oversight has been a key message of Labor’s approach to these issues and we are pleased that the government is implementing this part of a policy that we have been committed to for a long time.

To return to this bill, the commission may deal with corruption issues either by notification or on referral from the minister and it has the power to refer the investigation to another agency in certain circumstances. The commission also has the power to hold and conduct public inquiries on a range of corruption related issues at the request of the minister.

Finally, a new parliamentary joint committee will be created to oversee the commission. This is of some concern to Labor as it looks like a little bit of a waste. Both the Senate Legal and Constitutional Legislation Committee and the Parliamentary Joint Committee on the Australian Crime Commission itself have recommended that the existing joint committee could take on this role. We are still a little bit unsure as to why the government thinks a new body is required. It certainly seems strange, on a day when the government is closing down all the other committees in the Senate, that it would be setting up another one rather than using one with existing expertise. We look forward to the government’s explanation as to why it is yet again ignoring its backbench, those who are on these committees and have made the recommendation that the existing joint committee could be used. It seems that again this is something that the government has just decided it is going to do.

I want to briefly flag something which might be of particular importance to the officers who are here in the parliament. There are a number of technical issues particularly on the consequential amendments bill that we think could have been dealt with. These are minor matters but, as I understand, it is the intention of the government to move this legislation very quickly through the House and the Senate tomorrow, so perhaps advance notice of our concerns can be fixed in this House, while the debate is on, rather than needing to go through the process of moving it elsewhere and perhaps having it return.

The Law Enforcement Integrity Commissioner (Consequential Amendments) Bill 2006 purports to make a number of changes to the Telecommunications (Interception) Act 1979. This act was amended recently by the Telecommunications (Interception) Amendment Bill 2006. There are a number of small matters and, frankly, silly mistakes in this bill after we have taken such a long time to get it before the House. It seems that item 27 of schedule 1 amended the title of the principal act, but then repeated references are made through these other bills to the principal act under its previous name. I understand that Senator Ludwig has sought informally to bring this to the government’s attention but, as yet, we have not had any response as to whether that will be corrected. It is the kind of sloppy inattention to detail that we have come, in this House certainly, to expect from the Attorney-General. It is the type of blase administration that would lead one to enact redundant laws that may have to be revisited soon after to amend or repeal them. It is also a sign of the high-handed arrogance of the Attorney-General, in whose portfolio the TI legislation resides, that he did not prepare a suitably amended bill before dumping it on the table of the parliament. I think it is also the sign of an administrator who is less than firm in his grip on the job.

What else can we expect from an Attorney who ignores even the friendly and sage advice of his own backbench on sedition, for example? We have now seen the Law Reform Commission agree with the views of not just Labor and not just his own backbench. Now the Law Reform Commission says that those offences should not have gone ahead. Instead of taking that advice at the time, the Attorney-General was determined to rush that legislation through the parliament inappropriately and now has to revisit it. We do not want to be in the position that we have to do that with this bill. The Attorney is either so busy trying to find some other political wedge on which he can focus his attention or so fixated on his diminishing power that he cannot see the errors that lie plainly before him. So Labor foreshadows amendments to get rid of and to fix up that shoddy drafting. The government should present these consequential amendments to the parliament when they are comprehensively ready rather than rushing the legislation through in this inappropriate form.

Similarly, we have found a basic problem in item 1 of schedule 1 in the consequential amendments section where we seem to be inserting a new paragraph (ea) into a subsection that already includes a paragraph (ea). Of course, we understand that errors like this can occur, but when we spot them and bring them to the government’s attention they should be fixed quickly rather than be left to have to be raised in this debate time.

I raise these issues with the government because I hope that it can address these technical errors in the House during the course of this debate, perhaps in the consideration in detail stage, rather than leaving it for the Senate to fix. If that happens, the bill will have to make a needless trip back to this place to approve the inevitable amendments made over there. We all want this bill to pass quickly—having taken 10 years to get to this point we do not want any unnecessary delay—so I hope we can tidy this up the first time it needs to pass through this House.

The third bill that is covered in this cognate debate is the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006. This updates the complaints procedure for the AFP, to bring in as people can see in the explanatory memorandum a ‘contemporary managerial’ style of complaints handling. The amendments in this bill are the outcome of the 2003 Fisher review into professional standards in the AFP, which recommended the repeal of the act which previously covered this area, the Complaints (Australian Federal Police) Act 1981, and contain the establishment of a new complaints regime with clear definitions of the types of conduct which are covered. The professional standards bill categorises misconduct into four levels of seriousness—category 1, inappropriate conduct; category 2, minor misconduct or inappropriate conduct that reveals unsatisfactory behaviour; category 3, serious misconduct; and category 4, corrupt conduct—and allows the Australian Federal Police Commissioner and the Ombudsman to assign certain behaviours to a category of conduct.

Misconduct will be dealt with according to the category to which it relates. The lower levels will be dealt with by managers whereas higher complaints and complaints of corrupt conduct will be investigated by a specific internal unit or by the new commission established by the other bill respectively. Importantly, the commission must be notified of any instance of corrupt conduct. Again, the minister has the power to arrange an inquiry concerning the conduct of the AFP or anything else to do with the AFP. Investigators under this legislation have wide-ranging powers, such as the power to enter AFP property and the power to direct an AFP appointee to provide information. The federal Ombudsman is also given powers under the new regime. As I have already mentioned, he or she can determine, in conjunction with the commissioner, what kinds of issues belong to different categories. The Ombudsman will also conduct annual reviews of the operation of the professional standards section of the AFP.

As the parliament might be aware, a Senate committee has already assessed these bills. All three bills are largely welcomed by Labor and were referred to the Senate Legal and Constitutional Legislation Committee, which made a large number of sensible recommendations to improve the bill. I will take the House through a number of those. The key issue related to the jurisdictional matter, which has already been flagged throughout my speech in the second reading debate. The committee examined the issue of the jurisdiction. As I have already discussed, the commission—as the bill stands—only has the power to investigate allegations of corruption made against members of the AFP and the ACC, although this is expandable by regulation. This is plainly ridiculous. To quote the Federal Police Commissioner, Mick Keelty, in referring to the oversight of the commission over law enforcement bodies:

There is a gap here—and I do not want to name agencies—if you look at the powers, such as access to search warrants, access to the use of firearms and access to detention.

Even the commissioner for police, in giving evidence to the Senate inquiry, acknowledges these gaps we have been referring to—without wanting to list all of those agencies which we have touched upon. There is the old saying ‘What is good for the goose is good for the gander’. This seems to be particularly true when you are talking about law enforcement powers which are used by a range of different authorities. You would think that it was just as important that those other agencies also be susceptible to the oversight which is being proposed for the AFP and the ACC. As witnesses to the committee argued, there are gaps in the AFP’s effective jurisdiction over corrupt conduct in other agencies—being restricted to the investigation of criminal matters in cases in which there was conduct that was corrupt but not clearly criminal. We could be in a position where we would not have oversight, where our existing agencies responsible for the enforcement of our laws would not have power, but where there is conduct falling between those gaps that the public would rightly want scrutinised.

Finally, the committee investigated the allowance in the legislation for its jurisdictional expansion by regulations. The final report stated:

No rationale has been advanced for this potential expansion of jurisdiction by stages via regulation.

But we are concerned not just with expansion. We are also concerned that any agency actually listed in regulations could also be removed from the jurisdiction of the Integrity Commissioner by the stroke of a minister’s pen. This is obviously of great concern to us. As I said, it should not be beyond the wit of the government to be able to determine which agencies this body should have oversight for and which powers exercised by certain agencies should be overseen. That would provide the best and strongest confidence in those who are exercising these powers. Also, the confidence that we rightly have in our systems for law enforcement in this country will be enhanced by having proper coverage for this bill.

The committee recommended that other agencies be brought under the commission’s authority by legislative change rather than by regulation and that the government give a time frame for adding additional agencies to its jurisdiction. I think, in that case, the committee might have been rather kinder than the Labor Party would have been, in that we are critical of the government having taken this long to even introduce these bills. We do not understand why they could not have already made an assessment for these other agencies and these bills could have dealt with all those issues. In the absence of that, we strongly believe—as the committee does—that legislative change, not regulation, is the process by which you should add or in fact subtract agencies. I foreshadow, therefore, that my Labor colleagues in the Senate will be moving a range of amendments in that other place to improve the bill in line with the committee’s process and as I have flagged through my speech. With those reservations, Labor supports the bills and commends them to the House.

See this speech in context