Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I seek leave to incorporate my speech on the second reading debate on 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.

Leave granted.

The speech read as follows—

Key Features of the Bills

Mr President, I rise to speak on three Bills that are being moved cognate:

• the Law Enforcement Integrity Commissioner Bill
• the Law Enforcement Integrity Commissioner (Consequential Amendments) Bill
• the Law Enforcement (AFP Professional Standards and Related Measures) Bill.

Labor agrees with and certainly supports the intent of these Bills. In fact, it is a shame we could not have seen them earlier.

The genesis of a Federal Law Enforcement Integrity Commission appears to have derived from a reference the then Labor Attorney-General Michael Lavarch sent to the Australian Law Reform Commission more than ten years ago.

The ALRC recommended such a body in its report of November 1996. It took the Liberals from 1996 to June 2004 to actually adopt this proposal as party policy.

Needless delay is clearly a hallmark of this Minister.

Since then it has taken Senator Ellison a full two years to get his act together and bring the Bills before the Parliament.

Funding for a Law Enforcement Integrity Commissioner was announced in 2005 Budget, and the Bill has itself been sitting on the forward list of urgent Bills for well over a year.

In the time passed since the announcement of these Bills, 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 ACC-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.

At this point let me state unequivocally for the public record– there is no evidence of systemic corruption in Australian Commonwealth Law Enforcement agencies.

The public can and should have confidence in the integrity of Australian Federal Police, Australian Crime Commission and Australian Customs Service officers who do an excellent job in protecting the community from some pretty awful threats in terrorism, drug trafficking, sex slavery, child pornography and many other crimes.

Crime is big business – there are huge amounts of money involved, and history shows us that criminals are willing and able to try to corrupt serving officers to stay a step ahead of the law.

It is absolutely vital therefore that the long-overdue Integrity Commission is ultimately established. Likewise, the AFP’s new professional standards regime is clearly a marked improvement on the current arrangements.

This is even more so because, since September 11, our nation’s law enforcement agencies have had a dramatic increase in the range and availability of powers.

Some five long years after September 11, the Howard Government is still fiddling with these powers on a semi-regular basis, which doesn’t give you much confidence in their ability to rapidly assess an emerging threat and co-ordinate and deliver a proportionate response. At the same time as these powers are being expanded, the oversight regime has largely remained frozen – partially of course due to the Minister’s inability to progress the legislation.

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 committee, these Bills represent the most significant change in Commonwealth integrity institutions in twenty years.

Let me foreshadow then, Labor’s broad support for this legislation, before I go on to the specifics of how the legislation is not good enough.

Firstly, we are disappointed in the fact that ACLEI has been given such a narrow jurisdiction to start off with – only extending 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 others – this is a massive error.

Let me remind Senators of just what the Immigration Department has been up to under the life of this Government. This little shop of horrors that poses 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 s196 of the Act, and in direct conflict with numerous Federal Court cases that have set the precedent.
• 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 its not clear if this includes the tragic case of Cornelia Rau
• Removal 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 of Nauru
• Placing even mothers in the act of labour under guard and refusing the right of the family to take photographs of the newborn
• Abrogation of its duty to properly supervise a contractor GSL, or alternatively, deliberate connivance with that organisation to conceal and cover-up, using what the ANAO called “considerable discretion as to what is reported” as an incident.

The question is – would all or some of this conduct constitute behaviour that fell within the Law Enforcement Commissioner’s ambit?

The definition of engages in corrupt conduct under section 6 turns not on monetary gain but rather on “abuse of office”. Consider for a moment whether you can capture wilful ignorance, dereliction of duty, and abuse of power in the terms.

Yet, when we look at the definition of a law enforcement agency, we find something missing – this Department – which has caused 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 in the definition.

Other agencies are missing too – Customs, for example; has uniforms, guns, powers of arrest and detention, power to question, search and seize, etc. So while it swims, flies and even waddles, although I wouldn’t go so far as to say it quacks, this government plainly fails to recognise it for what it is.

Customs holds almost identical powers to police, but they too are missing from the list of law enforcement agencies.

There are other agencies like ASIC and the ATO who have investigatory and law enforcement powers to access stored communications, issue notices to produce etc. that would also benefit from oversight.

Instead of putting agencies like 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 are or will be able to be investigated, and that is completely unacceptable.

Why should a Minister have a roving discretion to decide when an agency should or should not be investigated for corruption?

Perhaps the Minister and the Government Senators can explain —what is the public benefit in a Minister maintaining the power to add and remove agencies at whim?

This is not only dumb policy, it is dumb politically. Revealing a Government that is both tired and lazy, that’s too obsessed with its extreme ideology rather than middle Australian values and all too ready to be kicked out of office.

There are not that many federal agencies —how hard is it to sit down, work out what powers each has and make a final and definitive determination as to whether they are in fact a law enforcement agency, or exercise law enforcement powers so akin to a law enforcement agency to warrant them being treated as such for the purposes of oversight?

That is what sensible policy would do. Turning to each Bill specifically.

Law Enforcement Integrity Commissioner Bill

The Law Enforcement Integrity Commissioner Bill establishes the Australian Commission for Law Enforcement Integrity – or ACLEI – which is an anti-corruption 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 may be expanded by regulation. Labor totally rejects the Ministerial power of veto into corruption investigations - a point I have already raised above.

ACLEI will have the powers similar to that of a standing Royal Commission. Essentially, the Commonwealth is following the lead of those states who have already set up similar bodies with similar powers to ACLEI.

I mentioned previously, there is no evidence of systemic or serious corruption in either the ACC or the AFP. Indeed, the situation we have here is completely different to the endemic corruption of the National Party regime led by Bjelke-Peterson in Queensland whose conduct was so bereft of anything approaching moral or ethical behaviour that it demanded the establishment of the Criminal Justice Commission, forerunner of the Crime and Misconduct Commission.

At least the community can rest safe in knowing there will never be another National party government again, anywhere, ever... but that’s another story.

The establishment of this anti-corruption 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.

To return to the Bill – ACLEI 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, on the request of the Minister.

Finally, a new Parliamentary Joint Committee will be created to oversee ACLEI. This is a matter of some concern to Labor, as it looks like a waste of cash. Both the Senate Legal and Constitutional Committee, and the Parliamentary Joint Committee of the Australian Crime Commission itself recommended that the PJCACC could take on this role.

On the one hand you have Senator Minichin making unfounded claims about how the Howard Governments attack on the Senate Committees will save money. On the other you have Senator Ellison establishing a new committee that even his own backbench says should have been rolled into the PJC on the ACC.

We look forward to the Government’s explanation of why the government is yet again ignoring its back bench.

Law Enforcement Integrity Commissioner (Consequential Amendments)

I might speak shortly on the consequential amendments bill. The Bill purports to make a number of recommendations to the Telecommunications (Interception) Act 1979.

That Act was amended by the recently passed Telecommunications (interception) Amendment Act 2006.

Part of Subitems 31(1) and (2) of Schedule 1 amended the title of the Principal Act from “Telecommunications (Interception) Act 1979”, to “Telecommunications (Interception and Access) Act 1979”.

The commencement of these items took effect on proclamation, which was done on June 13th.

However, reference is made throughout these Bills to the principal Act under its previous name. Labor successfully moved amendments in the House to bring the Bill up to date, and a similar error in the main bill.

In addition, the legislation as originally proposed by the Government purported to add a new paragraph (ea) to Schedule 2 of the Administrative Decisions (Judicial Review) Act after an existing paragraph (e). However a paragraph (ea) already exists in that Act. Labor again was successful.

It is that kind of sloppy inattention to detail that we have come to expect from this Government. It is the type of blase administration that would lead one to enact redundant laws that may have to be revisited soon after and amend or repeal them.

It is a sign of high handed arrogance that the Attorney-General, in whose portfolio the TI legislation resides, did not prepare a suitably amended Bill before dumping it on the table of Parliament in the other place. 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. He is either so busy trying to find a new political wedge or so drunk on his diminishing power that he cannot see the errors that lie plainly before him.

Labor was successful in excising the shoddy drafting. In future the Government should present consequential amendments to the parliament only when they are fit to be dealt with.

AFP Professional Standards Bill

The Professional Standards Bill updates the complaints procedure for the AFP, to bring in – as per the Explanatory Memoranda – 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 that previously covered this area, the Complaints (Australian Federal Police) Act 1981 and the establishment of a new complaints regime with clear definitions of the types of conduct which it 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
• Category 4: Corrupt conduct

. . . and allows the AFP 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 ACLEI, respectively. Importantly, ACLEI 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 and 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.

The Committee’s View

As I have already said, all three Bills are largely welcomed by both Labor and were referred to the Senate’s Legal and Constitutional Committee, which made a large number of sensible recommendations to improve the Bill.

Jurisdiction

Firstly, the Committee examined the issue of the jurisdiction of ACLEI. As I have previously mentioned, ACLEI – as the Bill stands – only has the power to investigate allegations of corruption made against members of the AFP and the ACC, although that is expandable by regulation.

This is plainly ridiculous. To quote the Commissioner of the Federal Police, Mick Keelty, in referring to the oversight of ACLEI 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.

There’s an old saying - what is good for the goose is good for the gander – and it certainly is true when you are talking about all important oversight powers.

As witnesses to the Committee argued, there are gaps in the AFP’s effective jurisdiction over corrupt conduct in other agencies – being limited to the investigation of criminal matters in cases where there was conduct that was corrupt but not clearly criminal.

Finally, the Committee investigated the allowance in the legislation for its jurisdictional expansion by regulations. The final report stated, and I quote, that `no rationale has been provided for this potential expansion of jurisdiction by stages via regulation’.

But it not just a matter of expansion. Any agency actually listed by regulation could be removed from the jurisdiction of the Integrity Commissioner with the stroke of the Minister’s pen.

As such, the Committee has recommended that other agencies be brought under the aegis of ACLEI by legislative change rather than regulation, and that the government should give a timeframe for adding additional agencies to its jurisdiction.

Right of Review

At recommendation 13, the Committee also advised:

4.65 The committee recommends that the lower level disciplinary matters (categories 1 and 2) should be subject to internal review while more serious matters (category 3) should be the subject of external review for example, through the Administrative Appeals Tribunal.

This begs the question, what is category 3 conduct?

Category three conduct is defined by the proposed section 40RP in the professional standards Bill as conduct that;

“i) is serious misconduct by an AFP appointee; or

ii) raises the question whether termination action should be taken in relation to an AFP appointee; or

iii) involves a breach of the criminal law, or serious neglect of duty, by an AFP appointee; and”

is conduct of a kind that does not raise a corruption issue.”

So what then is defined as serious misconduct?

Section 40K (3) of the existing AFP Act defines serious misconduct as:

“a) corruption, a serious abuse of power, or a serious dereliction of duty; or

b) any other seriously reprehensible act or behaviour by an AFP employee, whether or not acting, or purporting to act, in the course of his or her duties as an AFP employee”

That is a very wide. It is even wider when you consider that misconduct of category one and two level, if committed in conjunction with category three misconduct, must as per s4ORK (6) be taken to belong to the category three conduct.

It is only natural, in the view of the Labor Party, that someone who is being tarred with serious allegations of this type, who:

• Has not been terminated and therefore has no access to a claim for unfair dismissal, and therefore
• Does not have access to an external independent mechanism for review;

should certainly have access to external review. That is common sense.

This is particularly the case with regards to law enforcement, because there are plenty of examples in the past, in Australia and overseas of corrupt officers conspiring to set up a whistleblower on false allegations.

The Government moved amendments in the other place that took up a number of the committees recommendations. This was a welcome development.

But a couple of recommendations that are of particular importance to Labor, and we won’t desist our efforts to see that they’re acted on. At this point I foreshadow that I will be moving Labor’s amendments to deal with these recommendations during the committee stage.

I’ll now briefly turn to the substantial amendments to the Australian Security Intelligence Organisation Act 1979.

I’m gravely concerned that these amendments were not referred to the Parliamentary Joint Committee on Intelligence and Security, whose members and secretariat are all highly regarded for their grasp of national security and intelligence matters.

Of course the Government has given assurances that these are relatively ‘minor’ amendments. But it is the Joint Committee, not the Government alone, that is best placed the make such assurances. Indeed, if there is sufficient review of new laws and powers covering security agencies before they’re enacted, the task and burden of operational oversight is both improved and made easier.

I encourage the government to refer these changes to the Parliamentary Joint Committee on Intelligence and Security, alternatively I’ll raise it with them myself.

I conclude with those remarks.