Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

I rise to speak in relation to these three bills, which are being dealt with together. The first bill is the Law Enforcement Integrity Commissioner Bill 2006. The minister in his second reading speech points out that this bill:

... implements the decision, announced by the government in June 2004, to establish an independent body, with the powers of a royal commission, to detect and investigate corruption in the Australian Federal Police and the Australian Crime Commission, should it arise.

I further quote the minister:

The bill will facilitate the detection, prosecution and prevention of corruption in Australian government law enforcement agencies. The bill will establish the Australian Commission for Law Enforcement Integrity ... headed by a statutory officer, the Integrity Commissioner.

The jurisdiction of the Integrity Commissioner and ACLEI will initially cover the AFP and the ACC. Other Australian government agencies with law enforcement functions may later be brought within the jurisdiction by regulations.

The second bill being considered is the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006. This bill repeals the Complaints (Australian Federal Police) Act 1981 and inserts a new part into the Australian Federal Police Act 1979 to modernise the complaints and professional standards regime within the Australian Federal Police. The bill also amends the Ombudsman Act 1976 to align the Ombudsman’s administrative review role over the AFP more closely with the role it has in relation to other Australian government agencies.

The third bill is the Law Enforcement Integrity Commissioner (Consequential Amendments) Bill 2006. This bill provides for ACLEI investigators to have access to the full range of police special investigative powers, including the capacity to use telecommunications interception, surveillance devices, controlled delivery and assumed identities.

Unlike other speakers, I want to introduce a note of caution into this debate. I suppose it comes from my history, before I came into parliament, as a legal aid solicitor and barrister. I am not as enthusiastic as some in this chamber about corruption watchdogs. Indeed, the minister in his second reading speech said:

The focus on the AFP and the ACC does not reflect a perception that these bodies currently have a significant problem with corruption. Indeed, there is no evidence of systemic corruption within either body. However, these agencies play a key role in Australian government law enforcement. Putting in place a regime of rigorous external examination now will ensure that the public can have continuing confidence in their integrity.

So on those words this is an exercise in trying to maintain confidence in the integrity of the particular bodies and that corruption is not systemic. And I do not think it is systemic in either the AFP or the Australian Crime Commission. I think the vast majority of people who work within those agencies are decent, law-abiding citizens who are doing a public good. You will get a rotten apple here or there, but one has to question whether one wants to go to the next step and devote a whole lot of resources and funding to an agency as a PR exercise. I do not have a problem—if there is a problem—in funding an agency. But I was never a great fan of Independent Commission Against Corruption in New South Wales when it was first set up. I think a number of the investigations that that body has undertaken have been questionable. Indeed, I think the former Premier of New South Wales Nick Greiner was done a very great wrong by that body and drummed out of public office. He was subsequently exonerated by the judicial system. And I am not a great fan of the Crime and Misconduct Commission, I have to say, at times—I am not saying all of the time. These bodies are now creeping into our systems and, frankly, they are growing like topsy. I think we need to be careful.

That is why there is some criticism as to how wide the application is. At the moment it is only the AFP and the ACC, and the government is saying that other government agencies with law enforcement functions will be brought in later. Probably that gradual approach, I might say, is the proper approach. You get a body up and running first, to concentrate on something at the first stage of its development and before going too far, because when you go across all agencies you are going to require a body with substantial resources.

I just pose that question. I am not here opposing these bills but I am speaking more as a devil’s advocate, to put on record a few concerns that I have and to say to a few people who are enthusiastic and trumpeting here, there and everywhere how great this is that the proof of the pudding will be in the eating. There might be an argument that we are using a sledgehammer to crack a walnut. That is not defending corruption; what I am saying to the parliament is that we need to be satisfied that this is the best way to achieve it. At the moment we have had a Law Reform Commission report and an inquiry by the Senate Legal and Constitutional Legislation Committee, and they were both supportive. So I do not seek to argue against those particular reports. I just state that I prefer cautionary approaches. I am very attracted to the report of the Senate committee that urges some caution. Indeed, recommendation No. 2 says:

3.71         The committee recommends that the Law Enforcement Integrity Commissioner Bill 2006 be amended to provide the Integrity Commissioner with discretion not to investigate or refer a complaint where he or she considers the complaint to be frivolous:

• the complaint is frivolous or vexatious or was not made in good faith; or
• the complainant does not have a sufficient interest in the subject matter of the complaint; or
• an investigation, or further investigation, of the action is not warranted having regard to all the circumstances.

So there is a threshold question there. I know there are some thresholds already within the proposed bills. The reason I say that is that I would not want to see the commission tied up in pursuing matters unnecessarily that could be dealt with in other ways. I note that, as I said, there are procedures within the other acts as to how people will be dealt with. Part of the problem is that substantial resources will be required to do this and I think it has to be properly targeted at the level and type of conduct that we are talking about. If it is not, it would also tie up the resources and create morale problems within the organisations themselves, and I would not want that. Some things might be pursued that will have some ramifications. I think there is an argument for sending a message that we are going to do everything in our power to make sure that these organisations are clean. There is nothing more corrosive for an organisation than if someone is found out to be corrupt and there are issues that compromise inquiries within those organisations. I think the objects of the bill are fine:

(a)

to facilitate:

(i)

the detection of corrupt conduct in law enforcement agencies; and

(ii)

the investigation of corruption issues that relate to law enforcement agencies; and

(b)

to enable criminal offences to be prosecuted, and civil penalty proceedings to be brought, following those investigations; and

(c)

to prevent corrupt conduct in law enforcement agencies; and

(d)

to maintain and improve the integrity of staff members of law enforcement agencies.

They are noble objects and I am hopeful that those objects will be pursued in an appropriate manner. As I said, my reservations are a result of what I felt were some inappropriate investigations. In relation to the development of some of these investigations, obviously there will be some tests established over time—as there have been with ICAC legislation in New South Wales—as to what corrupt conduct means. In relation to Mr Greiner, ICAC found one thing and he had his appropriate day in court and was cleared in relation to that interpretation.

In relation to these bills, there is some criticism that the government has taken its time, that there was a Law Reform Commission recommendation made back in 1996 on these matters. I have a view and I am not going to join in the chorus of criticism. There are enough people criticising the government over this. What I want to do is make sure that we have good legislation and a good body. If that took extra time, so be it. That is why I say the Senate committee is one that has good standing in this place. They have come up with a number of recommendations and I do not think they can be easily dismissed.

I know that my friend and colleague the member for Denison, Mr Kerr, who is following me in this debate, will have something to say. As a former justice minister and a former Attorney-General for a short time, he is well qualified to comment on these matters before the parliament. I think he will comment with goodwill towards the organisations concerned. I do not want people to think that there is not goodwill. Too often we see question time and the public are meant to think that there is a gladiatorial contest and division on both sides of the House. On many of these bills, there is not division; there is goodwill on both sides of the chamber. What we are about is trying to produce good outcomes—better outcomes, better public policy—in these matters. My reservation came about at the outset from the admission in the second reading speech that there is no evidence of systemic corruption—that putting in place this regime was really about ensuring the public had continuing confidence in the integrity of these organisations. From my starting point, that raises a question mark because I think you need evidence of a significant level of corruption before you go to the next level.

We are talking about some further intrusive measures that, through the third bill before the House, the Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006, will be placed on people being investigated. We are going to have the full range of police special investigative powers, including the capacity to use telecommunications interception, surveillance devices, controlled delivery and assumed identities. I suppose that shows why a specialist body is being set up and why the Ombudsman is probably inappropriate in this regard. In some ways, I am arguing the other side of the coin here. If you are going to go down this path, that is why there is the argument that you need a specialist body. If you need it removed, who guards the guard while the guard guards you? You need to have someone independent. I can see the argument as to why an ombudsman is not the appropriate person in terms of the Law Enforcement Integrity Commission, because the use of telecommunications interception, surveillance devices, controlled delivery and assumed identities are not things that the Ombudsman should be doing.

With the qualifications that I have put, this agency has to operate in a way that is conservative, if I might call it that. I know that the opposition supports these bills, with the qualification that a second reading amendment has been moved by the shadow Attorney-General on these matters. That amendment is critical of the government’s delays in bringing these measures before the parliament and critical of the Australian Customs Service being exempted in the first instance. For what it is worth, I just say that this is a fledgling body. I am interested in what my colleague the member for Denison will say in terms of the agencies that should be subject to these powers, as to whether he thinks there is an argument that you need to develop the body first before expanding its use to other agencies.

I raise these things not to blackguard what is actually being done; they are legitimate questions that need to be asked and need to be thought through because there are resource implications. I have to be fair: I can see an argument as to why there has been a limitation on the number of agencies in the first instance because of resource and other implications. To get the body up and running, you do not give it too much too early which would set it up for failure in the first instance. You let it get its procedures and processes right before you expand the number of agencies. I am interested to hear what my learned friend says in relation to that and whether he has the view of ‘No, hang it: let all the agencies come under its umbrella in the first instance,’ or not.

On balance, I support what the government has done in this instance, and that is to be more cautious and allow the commission to get on its feet before it brings in other agencies on a gradual basis. I can see where my other colleagues are coming from, but I just have a different view. I think it is fair that, in a debate like this which has brought into question the number of agencies subject to this regime in the first instance, one just does not hide behind the veneer of not making a comment. I do support the legislation that is before the House, and I look forward to the contribution of my colleague the member for Denison who, I am sure, will enrich the debate. (Time expired)

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