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

Firstly, I want to make a couple of comments in regard to what the minister has said. Of course, Labor has indicated its support for the structure of the Law Enforcement Integrity Commissioner Bill 2006 and the cognate bills. They were some 10 years in fruition and are a significant step forward for the oversight of our law enforcement agencies. It is worth saying that we are at a point in this evening’s program where, because of time, we have to say what we want to say in a rather shorthand way. In doing so, as Senator Stott Despoja said, I think it does not detract from the importance of the legislation that is before us.

Having recognised the Senate Legal and Constitutional Legislation Committee’s work and the number of recommendations that came from that, the government has picked up a range of those recommendations, and those recommendations do improve the bill. But the bill is still in need of further improvement, and the amendments that I will be moving this morning go to ensuring that the bill does in fact provide the level of oversight that is required.

I will speak to amendments (1) and (2) on sheet 4975, though they need to be moved separately. Under the model proposed by the coalition government, the integrity commissioner is only authorised to conduct an own-motion investigation into an issue relating to corruption in the AFP, the ACC or another agency that has a law enforcement function and is prescribed by the regulations as a law enforcement agency. This means that, unless the Law Enforcement Integrity Commissioner Bill 2006 is substantially amended this morning, the minister will be able to add and subtract agencies, other than the Australian Federal Police or the Australian Crime Commission, on a whim by mere regulation. That means that with the stroke of the minister’s pen agencies with law enforcement style powers, like ASIC, Customs and the Australian Taxation Office, could be placed beyond the jurisdictional reach of the commissioner. It is incredible that, when you look at the power that is provided here, the justice minister, Senator Ellison, seems set to ignore the recommendations against such a power which were proposed by the Senate committee dominated by government backbenchers. But, as parliament prepares to vote, the regulations are not public and the minister will not, as I understand it, commit to including other law enforcement agencies directly into the legislation. It is not for want of trying.

The proposal is not good public governance. In fact, it harks back to the 1970s when I worked under a government and I can recall an honest cop, Mr Ray Whitrod, being sacked for being just that. The types of structures we have today go to oversight that and ensure that there is good governance. I think this harks back in part and represents a bad example. But the discretionary power cannot possibly be in the public interest. It should not be there. The minister should abandon it before the bill is made law.

Amendment (1) proposes to remove the ability of the minister to change the jurisdiction of the Law Enforcement Integrity Commission by regulation and, coupled with amendment (2), proposes to add the Customs Service, AUSTRAC and DIMA. I think the reasons are clear—and I will go into them briefly—in that, even if we take the Customs Service as an example, they now have substantial power under their legislation, they now carry arms, they now have significant intelligence-gathering mechanisms, they have intelligence databases and they have developed into a highly disciplined, worthwhile and accomplished service. That is not to say that there is any suspicion of corruption there—in fact, far from it: I do not think there has been much reported, although there have occasionally been issues such as that raised. It would seem logical to me to include them within the ambit of this particular bill. It is similar for AUSTRAC and DIMA, when you look at the range of powers that they have.

It is disappointing to find that at this hour we still have matters that could and should be addressed, and I think the practical reality is that they will not be addressed. The minister, I understand it, has given some undertakings to look at it. I think it needs more than that, quite frankly. I think the minister did have the ability to change it and include the agencies in there and not use a regulatory mechanism within the legislation. I think it detracts from it. It is a shame that we are in that position.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

We believe that providing for this by regulation still provides transparency. It is a public determination disallowable by the parliament and, of course, it gives the ability to expand the operation of this act without having to go through cumbersome amendment to the legislation. The reason we have named this bill using the term ‘law enforcement integrity’ is so as not to name a particular agency. I am on the record as saying that I well envisage that in the future this could be expanded but, at this stage, to particularly name certain agencies is premature, we believe. We want to see how it operates for the time being, but I could well envisage that in the future it will be expanded to encompass other Commonwealth agencies which have a law enforcement function. But at this stage we are opposed to the amendment.

Grant Chapman (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Ludwig, how do you intend to handle your group of amendments?

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

It is probably best that I move them separately. I do not intend to divide on them, as long as our position is quite clear from my earlier statement.

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

For the record, given there will not be a division, the Australian Democrats will be supporting the Labor amendments. In my incorporated speech on the second reading and also in the Senate committee report, I indicated some of our views on these issues, including the expansion of powers. I will not elaborate further on that. I also indicate in advance that I will not be dividing on the Democrat amendment either.

The Temporary Chairman:

The question is that clause 5 stand as printed.

Question agreed to.

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

I spoke to amendments (1) and (2) together, as they go to the same issue. I now move opposition amendment (1) on sheet 4975:

Clause 5, page 8 (lines 19 to 22), omit paragraph (d) of the definition of law enforcement agency.

Question negatived.

I now move opposition amendment (2) on sheet 4975:

(2)    Clause 5, page 8 (after line 18), after paragraph (c) of the definition of law enforcement agency, insert:

           (ca)    the Australian Customs Service; or

           (cb)    the Australian Transactions Reports and Analysis Centre (AUSTRAC); or

           (cc)    the Department of Immigration and Multicultural Affairs; or

Question negatived.

We can move to amendment (8). You might note that there are a number of other amendments on the sheet. What occurred was that we had diligently gone through and developed amendments for the range of recommendations arising out of the Senate Legal and Constitutional Legislation Committee. However, having lately discovered that the government had chosen to pick a range of those up, we will not need to move them in that sense. I move opposition amendment (8) on sheet 4975:

(8)    Clause 93, page 103 (after line 30), at the end of the clause, add:

False or misleading statements

        (6)    A person commits an offence if the person makes an oral or written statement to a hearing that the person knows to be false or misleading in a material particular.

Penalty: Imprisonment for 2 years.

This amendment deals with false or misleading statements to the law enforcement commission. This is one of those ones where I think again the government has chosen to adopt a penalty regime for offences against ACLEI that is substantially different from the regime employed under the Australian Crime Commission. Both bodies are in effect standing royal commissions, and there is a general principle that like should be treated as like. There is a proposed provision that, in the not unforeseeable event that an issue falls under the jurisdiction of both bodies because it involves both organised crime and the corrupting of an officer, a person who provides false or misleading statements to the ACC should receive a maximum penalty of five years compared with a maximum of only one year for an equivalent offence against the ACLEI under section 137.1 of the Criminal Code Act 1995. Not only is it inconsistent with every offence listed in the proposed bill; it is also inconsistent with the broader application of the law when you consider the Australian Crime Commission.

The best Labor can do this morning with what you can only really describe as the hopeless situation which the government has foisted upon us is to move for the creation of a new offence which would at the very least make the ACLEI act consistent. We could suggest to the government that they have a good hard look at the proposal, consider the absurd situation I have just outlined in relation to the differential treatment that could occur between the Australian Crime Commission and ACLEI and take a considered examination themselves in their review of penalties—I understand that the penalties review is still open—to see whether it can be corrected through that process or whether we need a consequential amendment when the government comes back here with legislation amending this legislation. I certainly do not want to still be arguing this point three years on at the review.

It seems logical to me, unless the government can argue otherwise. Certainly in another place the ACC have argued themselves that the penalties under their provisions need review. I think the Attorney-General’s Department has also argued that in submissions to another committee that I am on in respect of the problem the Australian Crime Commission have in this area. This is one of those areas that does need a further look. I know that the government will not pick up the amendment but I am sure they will certainly have a hard look at it.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

There is provision in the criminal legislation already for this and we do not see a need for it.

Grant Chapman (SA, Liberal Party) Share this | Link to this | Hansard source

Amendments (3) to (7) having not been moved by Senator Ludwig, the question before the chair is that amendment (8) proposed by Senator Ludwig be agreed to.

Question negatived.

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

by leave—I move opposition amendments (10) and (11):

(10)  Heading to Part 14, page 208 (lines 3 and 4), omit “Australian Commission for Law Enforcement Integrity”, substitute “Australian Crime Commission”.

(11) Clause 212, page 208 (lines 8 to 10), omit all words after “means”, substitute “the Parliamentary Joint Committee on the Australian Crime Commission established under Part III of the Australian Crime Commission Act 2002.”.

We also oppose clauses 213 and 214 in the following terms:

(12) Clauses 213 and 214, page 208 (line 12) to page 209 (line 22), TO BE OPPOSED.

These three amendments go to moving the parliamentary oversight of the commission to the Parliamentary Joint Committee on the Australian Crime Commission. It is a matter that I have raised. It was a matter that was in the Senate Legal and Constitutional Legislation Committee report. It would seem logical to have one parliamentary committee. On the one hand we have the government arguing this week to reduce the number of committees and on the other hand we have the government now seeking to expand and add an extra committee. I find myself on the side of saying let’s not waste public money on a committee that may only effectively have one agency to oversight—that is, the commission—and it may not be used very much at all.

It would be more logical to wrap it up with a parliamentary joint committee to deal with the wide range of work. The experience that it would gain from that would be significantly improved, I think, for the members. The ASIO committee is one such joint committee that has oversight of a range of bodies, and the members manage quite well to keep themselves abreast and provide cogent reports to this parliament. It would seem in this instance that it would be sensible to follow a similar path. I know that the government’s view is the opposite, that they prefer a single committee and an additional committee. I can only think perhaps they want the chair as an addition. I would be disappointed if that was their only view and only argument, but I have not been able to discern a better argument.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government opposes these three amendments. Basically we see the Parliamentary Joint Committee on the Australian Crime Commission as having a distinctly different function to the proposed committee which would oversee ACLEI. ACLEI is a body which would have purview over the Australian Federal Police and the Australian Crime Commission and in the future other Commonwealth law enforcement agencies, as I have foreshadowed.

The parliamentary joint committee was set up just for the Australian Crime Commission; it was not set up for this task. Therefore its role is quite different. It is overseeing the Australian Crime Commission. It would still deal with allegations of corruption brought against the Australian Crime Commission. But that is all in relation to the Australian Crime Commission. We believe that ACLEI could have expanded jurisdiction—and no doubt will—and should have its own committee of review to do it justice. For that reason we oppose the amendments.

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

Having heard that, I reaffirm what I said earlier: there is no real reason why they would not simply have one committee—it is a more sensible approach.

The Temporary Chairman:

The question is that amendments (10) and (11) moved by Senator Ludwig be agreed to and that clauses 213 and 214 not stand as printed.

Question negatived.

Grant Chapman (SA, Liberal Party) Share this | Link to this | Hansard source

We will now move to amendment (13).

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

We can now move to sheet 4987, which is the professional standards bill. The remaining amendments, as I indicated earlier, fall within the range of work that had already been done but had been amended in the House. Unless there are other amendments from the Democrats.

The Temporary Chairman:

There are other amendments from Senator Stott Despoja to the bill that is currently before the chair. Senator Ludwig, are you pursuing amendment (13)?

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

No.

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

by leave—I move together Democrat amendments (1) and (2) to the Law Enforcement Integrity Commissioner Bill 2006:

(1)    Clause 175, page 182 (after line 15), after subclause (2), insert:

        (3)    In making an appointment in accordance with subsections (1) and (2), the Governor-General is to have regard to the merit selection processes described in section 175A.

(2)    Page 183 (after line 10), after clause 175, insert:

175A  Procedures for merit selection of Integrity Commissioner

        (1)    The Minister must, within 9 months of the commencement of this section, determine a code of practice for selecting and appointing the Integrity Commissioner that must include the following general principles:

             (a)    merit, including but not limited to appropriate subject, research and management experience; and

             (b)    appointment on the recommendation of an independent selection panel established by the Minister; and

             (c)    probity; and

             (d)    openness and transparency, including where the Minister recommends the appointment of a person not nominated by the selection panel, the requirement for a statement to be tabled in both houses of Parliament setting out:

                   (i)    the reason for not accepting the recommendation made in accordance with paragraph (b); and

                  (ii)    the reasons for the Minister’s decision.

        (2)    The Minister must cause to be tabled in each House of the Parliament a copy of the code of practice within 15 sitting days of that House after determining the code in accordance with subsection (1).

        (3)    The Minister must cause to be tabled in each House of the Parliament an amendment to the code of practice within 15 sitting days of that House after the amendment is made.

175B  Audit of procedures

        (1)    The operation of section 175A must be audited by the Public Service Commissioner each financial year.

        (2)    The result of an audit conducted in accordance with this section is to be included in the annual report of the Public Service Commissioner.

        (3)    An audit conducted pursuant to subsection (1) must examine the code of practice as determined and any appointments made in accordance with the code of practice.

I do not think that these amendments come as any surprise to anyone in this chamber. It is a regular tactic of the Australian Democrats. These are the appointment on merit amendments. I think the Democrats have lost track of how many times we have actually moved these amendments, surprisingly without success. But we are going to keep doing it wherever there are positions being created where we believe it is important to stipulate in legislation that those appointments be made on merit. We see that that particular process could and should apply in relation to the Integrity Commissioner. I could expand on that. Mr Temporary Chairman, I am sure I could give you a history and a detailed background, but I think that, at this time of night, I might just move the amendments standing in my name and once again urge the Senate to support appointment on merit in this legislative form, as the Democrats have tried to enshrine on many occasions previously.

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

What I have said about these before is that we agree with them in principle but we are not going to support them in the words proposed. Be that as it may, we do understand the principle that underpins this. Labor supports the principle but, in this instance, we are not going to support the amendments themselves. I understand that Senator Stott Despoja would be familiar with that remark.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Appointments are made on merit. There is an appropriate process for appointments via the government recommendation to the Governor-General. We believe that there is no need to change that. I am aware of the Democrats raising this with respect to other pieces of legislation. It is not unfamiliar to the government. But, for the reasons we have stated previously, we are not attracted to these amendments and we oppose them.

Question negatived.

Bill agreed to.

LAW ENFORCEMENT INTEGRITY COMMISSIONER (CONSEQUENTIAL AMENDMENTS) BILL 2006

Bill—by leave—taken as a whole.

Bill agreed to.

LAW ENFORCEMENT (AFP PROFESSIONAL STANDARDS AND RELATED MEASURES) BILL 2006

Bill—by leave—taken as a whole.

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

by leave—I move opposition amendments (2) and (3) on revised sheet 4987:

(2)    Schedule 1, item 28, page 35 (after line 10), after section 40TV, insert:

40TVA  Review of category 1 or category 2 conduct report

        (1)    If the investigator is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 1 or category 2 conduct, the Commissioner must provide a copy of the written report to the AFP appointee.

        (2)    The AFP appointee may request that the Commissioner conduct a review of the report or the recommendations.

        (3)    If the AFP appointee requests a review under subsection (2), the Commissioner must appoint a person (the reviewing officer) with appropriate qualifications or experience to conduct the review. The Commissioner must not appoint the investigator to conduct the review.

        (4)    The reviewing officer must provide to the Commissioner and the AFP appointee a report containing:

             (a)    the reviewing officer’s view as to whether the investigator’s findings are based on reasonable grounds; and

             (b)    the reviewing officer’s view as to whether the investigation was conducted appropriately.

        (5)    If the AFP appointee requests a review under subsection (2), the Commissioner must not take action under paragraph 40TV(b) until the reviewing officer has provided his or her report to the Commissioner.

(3)    Schedule 1, item 28, page 35 (after line 10), after section 40TV, insert:

40TVB  Review of category 3 conduct

        (1)    If the investigator is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 3 conduct, the Commissioner must provide a copy of the report to the AFP appointee.

        (2)    The AFP appointee may apply to the Administrative Appeals Tribunal for a review of the investigator’s findings.

        (3)    This section does not apply to an AFP appointee who has been the subject of completed termination action.

As I indicated earlier, in terms of what has been picked up out of the Senate Legal and Constitutional Legislation Committee report, this goes to recommendation 13. The government may argue that they have picked it up in part. It is sometimes worth going back to the actual recommendation itself, and the words in the report that underpin it, but I will only go to the recommendation now because of the early hour in which we are debating this. At 4.65 of the committee report the committee recommended 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.

Amendment (2) sets up an internal review mechanism for categories 1 and 2 issues. It should be noted that affected AFP appointees have no guarantee that disciplinary action taken under this bill will not result in pecuniary loss. This matter was raised during the committee hearings. Labor thinks that it should in fact be spelt out. Amendment (3) ensures that an AFP appointee who has been through the category 3 conduct process, and who (a) has not been terminated, and therefore has no access to claims for unfair dismissal, and (b) does not have access to an external independent mechanism for review, can still access external review through the AAT.

You could have a situation that is not a termination but which is akin to termination. I am sure many here understand that constructive dismissal is not dismissal in truth, but a demotion of a type or size could effectively amount to a dismissal and therefore could not really go to the commission. Even if it does not amount to a constructive dismissal, it could be a penalty that provides a pecuniary loss of some substance to the officer or AFP appointee. It could mean a shift from shiftwork to day work, a shift from one location to another, recall from overseas deployment or a range of penalties. We will call them penalties, although they may in fact be disciplinary matters, as they can amount effectively to a penalty, which can range from minor to substantial. At that point there could be either an arbitrary or a considered application. In any event, there does not appear to be the ability for the officer to question it or have it reviewed externally, although certainly there may be an internal review mechanism and an independent review mechanism above that.

As in nearly every other work jurisdiction—save, of course, for those employees where there are less than 100 employees under the horrendous, shocking Work Choices legislation—people have the ability to go to the commission for dismissals. But, if there are issues that need to be settled, there are also dispute resolution procedures, usually contained within certified agreements or awards, providing access to an independent person for an assessment either at law or on the merits of the issue. We have suggested the AAT because it can deal with issues of both law and fact, not simply review of the law which goes to judicial review, and some of these matters are more likely to go to factual circumstances that the person might complain and feel aggrieved about. And of course the AAT is a less expensive path than running an ADJR case or seeking review in any higher court, because launching those types of actions brings with them significant costs.

This bill is missing an external review mechanism on merits for matters within category 3 that fall short of termination but are still serious and have serious consequences, including serious pecuniary consequences. In those instances there should be an external review mechanism available to allow the AFP appointee, at a lower or managerial level, aggrieved by a decision to have it looked at again. Quite frankly, I think that is consistent with the Fisher review.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The government opposes ALP amendments (2) and (3). They, of course, relate to review of category 1 and 2 items of behaviour, which are of a lesser magnitude or seriousness than category 3. I will deal with categories 1 and 2 first. I will briefly point out that under the system we are proposing the commissioner can no longer impose fines or demote AFP employees for misconduct matters in relation to these categories of conduct. This reflects Mr Fisher’s recommendation that these punitive measures are inappropriate for the modern AFP and are unlikely to lead to any real change in poor behaviour. The Fisher review recommended internal review should be available for category 1 or category 2 matters. This will take the form of review under the commissioner’s orders. The AFP Act currently allows the commissioner to issue orders in relation to the good administration of the AFP. The government believes it is best left for the commissioner through his orders to provide for internal review of these lower level matters. I understand that the drafting for the commissioner’s orders has commenced and there is provision in that for internal review.

In relation to the second part of the argument, that is, ALP amendment (3), which deals with category 3 matters, they are more serious and would entail conduct that could disclose a breach of criminal law. In that regard we believe that if the employee has his or her employment terminated there will be the possibility of review by the Australian Industrial Relations Commission unless the commissioner issues a declaration under section 40K of the AFP Act that the employee was terminated for serious misconduct. In that case, section 40K declarations, which are only issued in about five per cent of all terminations, are subject to review of administrative action by the Federal Court. So category 3 allows for review by the Australian Industrial Relations Commission; that is the status quo. Where it is of a more serious nature—five per cent of all terminations are covered in that more serious bracket—then that is subject to review by the Federal Court. Ordinary principles of administrative law require that, where termination is being considered, the employee will be given notice of the case against him or her and have an adequate opportunity to rebut that case.

It is important to remember that Mr Fisher in his review determined that there should not be any other external review other than by the Industrial Relations Commission, which I have mentioned. So I think this is something which does not require amendment. I know the AFP Association was of a view that we should have a wider external review, and I mentioned that in my speech in reply. This is something we will keep under scrutiny, but we believe that what we have proposed here is appropriate. I might add that category 3 matters would normally be formally investigated by the professional standards section of the AFP, and that reflects the more serious nature of category 3 conduct. For those reasons we oppose ALP amendments (2) and (3).

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

I will not take up too much time. I reject those submissions. I think, ultimately, there is the ability for this area to create adverse consequences for people who are then not found to be guilty of a category 3 breach. Access to the commission is fettered in the sense that it is not open for them to go there for a grievance that is short of a dismissal. I understand the position of the serious misconduct area as well; however, it starts to escalate significantly for employees when they have to find significant resources to follow their grievance through. It does not provide an easy mechanism, especially for those who might find themselves in the category 3 area.

Category 3 will not always directly be dismissals. They may be investigated, and the AFP appointee is in a position where they have not been terminated, they have got no access to claim for an unfair dismissal, they have got no access to claim a conciliation conference before the commission and they do not have access to an external independent mechanism for review. So, on that basis, what seems to be missing is the ability for the person who is aggrieved or is the subject of the investigation to say, ‘I need an external review mechanism that is quick, simple and not particularly expensive in the process but fair and independent of the force.’ In that instance, I think this amendment is an improvement. I know it is not going to get up but I would ask you to keep it under serious consideration.

Question negatived.

Bill agreed to.

Bills reported without amendment; report adopted.