Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

Similarly, I seek leave to incorporate my speech on the Law Enforcement Integrity Commissioner Bill 2006 and cognate bills. I do so in the interests of time and not because this is not an important issue to me or the Australian Democrats.

Leave granted.

The speech read as follows—

I rise to speak to 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.

The Democrats applaud any moves to reduce corruption within Government law enforcement agencies and believe that this Bill is an important step in the protection of the integrity of our law enforcement agencies.

It has been suggested by academics in this area that significant reform has not been conducted for more than 20 years and is urgently needed. As such, I Welcome the changes that the bill proposes.

Corruption can be an unfortunate side effect of power and responsibility and has the potential to pervade any area where that power and responsibility is exercised. It is crucial to responsible government that all measures are taken to prevent corruption occurring and the Federal Government should lead by example.

It is disappointing to note in the Bill that the scope of jurisdiction given to the Integrity Commissioner is only with regard to the AFP and the ACC.

If we are to have a truly accountable system and intend to rid our governmental agencies of corruption altogether we need to be aggressive in our approach, the first step being that we should give jurisdiction to the Integrity Commissioner to investigate all Agencies that posses law enforcement powers.

Equivalent investigative bodies in New South Wales, Queensland and Western Australia already have a general jurisdiction, whereas the Commonwealth seems to be following the Victorian model which it initially criticised and said it was trying to avoid.

In a Joint Media Release on 16 June 2004, the Attorney-General and the Minister for Justice and Customs announced the intention of the Government to establish an independent anti-corruption body. They also stated in this media release that;

No evidence exists of systemic corruption within the Australian Crime Commission and the Australian Federal Police.

The aforementioned Ministers made this claim despite there being two reports in the media in the two months prior to the announcement of Police Corruption within the ACC. To date, the Government has not acted expeditiously to tackle corruption.

They continue to be lack lustre by not allowing the Law Enforcement Integrity Commissioner to investigate corruption in all government agencies that posses law enforcement powers.

Agencies such as the Department of Immigration and Multicultural Affairs, the Australian Taxation Office, Australian Customs and the Australian Securities and Investment Commission have considerable power and responsibility in their decision making.

Should these agencies fall under the purview of the Law Enforcement Integrity Commissioner, special care will have to be taken to ensure that private contractors who are employed by relevant Commonwealth Agencies also fall under ambit of the Commissioner.

Commonwealth Agencies increasingly are outsourcing important work to private contractors and there is an inevitable blurring of responsibilities between the private and public sectors as a result.

In our contemporary situation, the dynamic interactions between these two sectors can possibly lead to corrupt practices whereby one sector’s actions will bleed into the others.

This, therefore, represents a significant loophole and needs to be seriously addressed.

We believe it is not enough to simply limit the investigative scope of the Commissioner to personnel from Commonwealth Agencies tasked with law enforcement. Hence it is our position that the Commissioner’s powers should be extended to private personnel working for Commonwealth law enforcement agencies as well.

Take, for example, the Department of Immigration which considers compliance and detention and has discretion to decide over visa issues or the Australian Taxation office which has the ability to choose which taxpayers should be audited and can make advisory or binding rulings over tax issues.

Dr A J Brown, Senior Lecturer at Griffith University and Senior Research Fellow at the Australian National University stated in the recent inquiry into the Bill that;

Unless broadened, the restricted jurisdiction of the proposed Integrity Commission will represent a missed opportunity to properly strengthen the public integrity regimes of the Commonwealth Government in a manner which comparative research indicates is now overdue.¹

The benefits of widening the jurisdiction of the Commission were also recognised by the Commissioner for the Australian Federal Police, Michael Keelty, who stated:

If we are serious about this, and if it is not just a quick fix, then the AFP could benefit in its investigations if the ACLEI had a wider remit than what is proposed in the bill.

The Government has made provisions in the bill for further agencies to be added to those which come under the jurisdiction of the Integrity Commissioner, however, the Government has provided for this through. the prescription of an agency by regulation.

The effect of this means that the Government can just as easily remove an agency from the jurisdiction of the Commissioner whenever it pleases it to do so, this allows the Government to strip the Commissioner of independence and places the work of the office at the whim of the government of the day.

If this body is to be an independent statutory body as it is intended to be then the jurisdiction of the Commissioner must be widened through legislative changes. These changes should be introduced immediately.

By keeping the power to proscribe agencies within the power of the Government they are ironically allowing for the integrity of the Commissioner to be questioned. Critics will see the Commissioner as being reliant on the Government’s permission to conduct investigations.

Recognising that preventative measures are preferable to punitive measures, the Democrats believe that the Bill should encourage corruption resistance measures and training : to become a substantive part of the Commission’s function. It was outlined by Dr Brown during the inquiry process that the Bill has an unbalanced focus on reactive measures to corruption rather than on proactive corruption resistance. Dr Brown submitted that:

The Bill currently provides insufficient legislative support to the ‘proactive’ detection and prevention functions of the Commission.

It is important that the Integrity Commissioner do as much as possible to investigate and prosecute instances of corruption however measures should be taken to reduce the likelihood of corruption within the AFP and ACC. This will reduce the likelihood of corruption and in turn reduce the costs involved with the investigation and prosecution of corruption.

I am also concerned with the operation of section 149 certificates.

The operation of these certificates allows for the Attorney-General to specify that the disclosure of information or a document would be contrary to the public interest. The list of grounds on which the Attorney-General may issue a section 149 certificate is exhaustive.

The result of a section 149 certificate being issued is to prevent a disclosure that would otherwise be authorised or required by the Law Enforcement Integrity Commissioner Bill. It prevents;

• disclosures by law enforcement agency heads to the Commissioner (subclause 150 (1)),
• documents or things being given to the commissioner or at hearings (subclauses 150(2) & (3)),
• disclosures by the head of a law enforcement agency to another government agency (clauses 151),
• disclosure by the Commissioner to the head of a government agency or a special investigator investigating alleged ACLEI Corruption (clause 152) and;
• disclosures by the Commissioner to the proposed Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (subclause 216(2)).

The ability of the Attorney-General to suffocate an investigation in an arbitrary manner as the operation of this section seems to allow is unjustified. The grounds allowing for a certificate to be issued are too broad.

The Police Federation of Australia in its submission to the Senate Committee that a reporting process apply when the Minister issues a section 149 certificate in order to ensure openness and accountability.

The Senate Committee has made recommendations that the bill be amended to ensure that transparency of the overall system is maintained by making information available to the Parliament on the operation of the proposed system. This can be achieved by requiring the Minister to report how many times clause 149 certificates have been issued and what restrictions they have made.

Where an investigation into corruption could bring embarrassment for the Government or the Attorney-General, this section allows for an unscrupulous Member to hush up an investigation. This provision, if abused, could create a situation which this entire act is intending to remove.

Also of concern is the potential for this act to operate in conjunction with the National Security Information (Civil and Criminal Proceedings) Act which would mean that any of this information that has been designated by the Attorney-General to come under the section 149 certificate may not even be seen or heard by a Magistrate in court proceedings.

I am perturbed with the decreased reporting and accountability measures that are constantly being reduced by the Government.

We have potentially invasive legislation being introduced. Legislation that does not have adequate safeguards and do not have sufficient reporting requirements to make the parliament aware of whether or not the legislation is being abused.

The Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006, is a welcome change to the existing arrangements.

In May 2002, the Commissioner for the Australian Federal Police engaged Justice William Fisher AO, QC to undertake a review of AFP professional standards. This was in order to deal with recommendations by the Australian Law Reform Commission and from concerns within the AFP management that adversarial processes were causing significant delays in resolving complaints.

The previous system is reputed to have caused high levels of concern, within the workplace and was costly due to lengthy investigations that could be dealt with in a more efficient manner.

I commend the Commissioner for his efforts that has brought about this reform.

The current measures contained in the Complaints (Australian Federal Police) Act 1981 were stated as inefficient by Justice Fisher as “any system with a punitive regime as its central focus cannot adequately address the causes of poor performance or bring about significant behavioural improvement.”

The proposed measures which restructure the complaints system towards a more managerial structure has also been welcomed by the Australian Federal Police.

What concerns the Democrats about the proposed bill however, is the fact that there seems to be no method for an aggrieved police officer to seek redress. Where a police officer has been dismissed or has had some form of punitive measures imposed on him or her, that police officer has no avenue to appeal on the merits of the case.

Naturally, under the ADJR Act it is possible to seek redress on the grounds of procedural fairness, or on a point of law, but where an officer is unhappy with any disciplinary actions taken against him or her, their only avenue of appeal is to ask the disciplining authority to reconsider their decision. This situation is completely unsatisfactory.

The Australian Federal Police Association stated during the inquiry:

We call for an external review panel, tribunal or court, as envisaged by the Fisher review and as is found in all other Australian police forces bar none.

As a measure of accountability and in order to maintain fair and equitable standards any officer who should receive disciplinary measures should have some form of appeals process available to them, especially in the instance of dismissal.

This is a serious oversight by the Government especially because it is not possible for officers to go to the Industrial relations Commission. It is important that an aggrieved police officer is given a chance to have his or her concerns heard.

It is not in the interests of the AFP to have dismissed employees walking away from the job bitter and resentful at the way they were dismissed.

I urge the Government to address this issue.

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¹ Submission 8, p2