John Faulkner (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I present the 128th report of the Committee of Privileges, entitled Person referred to in the Senate: Mr Karl J O’Callaghan APM, Commissioner of Police, Western Australia.

Ordered that the report be printed.

I move:

That the report be adopted.

This report is the 48th in a series of reports recommending that a right of reply be afforded to persons who claim to have been adversely affected by being referred to either by name or in such a way as to be readily identified in the Senate.

On 2 August 2006, the President received a submission from Mr Karl J O’Callaghan APM, Commissioner of Police, Western Australia, relating to comments made by Senator David Johnston in the Senate on 14 June 2006 during discussion of matters of public interest. The President referred the submission to the committee under privilege resolution (5). The committee considered the submission on 10 August 2006 and recommends that Mr O’Callaghan’s proposed response, as agreed by the committee and Mr O’Callaghan, be incorporated in Hansard.

The committee reminds the Senate that, in matters of this nature, it does not judge the truth or otherwise of statements made by honourable senators or the persons referred to. Rather, it ensures that these persons’ submissions and, ultimately, the responses it recommends accord with the criteria set out in privilege resolution (5). I commend the motion to the Senate.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Numerous rights of reply have been accorded to offended individuals by this chamber. I would point out that, just as it is the practice of this chamber to allow a right of reply to anyone who thinks they have been defamed or otherwise affected, a similar right exists in the House of Representatives. I do not know how many rights of reply we have allowed—perhaps 50, 60 or 70—but the House of Representatives have allowed only one. I think that is a pretty miserable attitude of theirs. Not only do we allow a right of reply in the Senate but we also have a tradition to allow a very robust right of reply. In other words, this chamber takes the view, down to the last person, that if we dish it out we will cop it back. I think that is very healthy.

There is a particular issue between Commissioner O’Callaghan and Senator Johnston. I do not want to try to arbitrate on who is right or wrong in this particular case. However, one aspect raised by Senator Johnston concerns me, although I do not necessarily say he is right or wrong in this specific instance. What worries me is the fact of police leaking against public officials and politicians when the latter err in some particular way. I do not argue here and you will never hear me argue that politicians should be above the law or above exposure when they breach the law—of course they should not.

But we in this chamber all know that state police forces love having politicians in the headlines with a speeding offence, a drink-driving offence or any other such thing. This happens ‘somehow’—we never find out exactly how. When these offences occur, the media is informed. The TV cameras are out there on a particular individual. It is also true that this occurs with other people in society that are well known, but it should not be allowed to occur. I am not, as I have said, arguing that politicians should be a protected species. A colleague of mine in this chamber, also from Senator Johnston’s state, committed an error through speeding. I was picked up for speeding years ago when I was a cab driver. I wonder how many people in this chamber might have been too.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

What? Been a cab driver?

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Abetz, it is pretty hard not to. Of course, the media were immediately tipped off at every stage of my colleague’s case. They were always present; they always knew. And that is not the only example. It happens time and time again to federal and state politicians.

I read in the Australian this morning about another case. Angus Kennett, the son of the former Premier, committed some minor offence for which he was not arrested but was given a bit of a warning for being a naughty boy. That found its way into the media. The former Premier of Victoria, Mr Kennett, said of the incident:

… but it should never have been made public. “It’s a private matter and I can’t believe that the police force think it’s necessary to give information like this to journalists ... It’s an appalling breach of a person’s rights.”

Hear, hear! The former Premier of Victoria is absolutely right. It was not necessary for the police force to put that information into the public domain.

We all know that from time to time these things emerge. Going back to the case of Mr Reith and the telecard, which was some years ago, those opposite know that Senator Faulkner and I knew all the details of that case. That was obvious from our cross-examination at an estimates hearing in May.

John Faulkner (NSW, Australian Labor Party) Share this | Link to this | Hansard source

And my question on notice.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Yes. But we did not name Mr Reith and we did not ask questions on notice that would identify him. We knew his son was involved, and we desisted. How did that information get into the public domain? How did it reach the newspapers? We now know that it was the AFP that put it there. They had done the investigation. I do not think they found any criminal activity, so it was leaked to a newspaper. Time and time again we see this occurring.

We cannot expect, when we commit errors—we are supposed to set the example for the community—not to be exposed. I accept that. But I think it is bad for the police to commit the leaking. I suspect it is illegal. I suspect it is against all their codes of ethics to do so, and I do not think they should be allowed to do it. It is really a question of police integrity. I do not know if that, in the present instance, is what Senator Johnston was going on about. Nevertheless, I think we should say that we oppose the police leaking these particular matters for ambush.

I have had to raise elsewhere the question of the combined state and federal police and ASIO raids on terrorist matters. Clearly, I am not going to say that I do not support those raids, and I believe that each of those search warrants was justified. I also commend the police these days for the way in which they execute them in a far more culturally sensitive way, as they have been doing recently. But in the instances I mentioned from my state of Victoria the cameras were there. Who tipped off the TV stations to be outside a home? After all, the police were executing a search warrant. It was not an arrest. It was a search warrant. You can imagine what all the neighbours thought when they saw the four or five TV channels outside.

The state police especially have a relationship with the media. They need to use the media to assist them with their inquiries and activities. But it should not extend, in these instances, to tipping off the media and having them expose people. That is not the way our society is supposed to operate, and it will lessen people’s confidence in the police force if we allow it to continue.

Question agreed to.

The response read as follows—

APPENDIX ONE

RESPONSE BY MR KARL J. O’CALLAGHAN, APM

COMMISSIONER OF POLICE, WESTERN AUSTRALIA

PURSUANT TO RESOLUTION 5(7)(b) OF THE SENATE OF 25 FEBRUARY 1988

On 14 June 2006 Senator Johnston made a number of accusations against the Western Australian Police Service and me personally.

The central theme of the Senator’s address was a desire to demonstrate that the WA Police Service is dedicated to engaging in partly politics.

In support of this theory, the Senator refers to five examples:

The Prosecution of Paul Omodei

Mr Omodei was prosecuted and convicted for an offence relating to an incident whereby Mr Omodei discharged a firearm which injured his son’s thumb. Upon conviction Mr Omodei was fined and received a spent conviction.

The Senator argued that Mr Omodei should not have been charged because it was an accident. According to the Senator, the only reason Mr Omodei was charged was because he is a Liberal party politician.

I should point out that it is not my practice, nor is it the practice of any sensible Commissioner to interfere in decisions concerning who should be prosecuted. I was unaware Mr Omodei had been charged until after the fact. Once made aware, at no stage did I interfere in the process.

The Prosecutions of Jonathan Daventry

Mr Daventry works for the Federal Member for Curtin, Julie Bishop. Mr Daventry was charged following an altercation between Mr Daventry and a 72 year old constituent, who suffered a fractured skull.

The matter proceeded to trial in the District Court whereby Mr Daventry was acquitted.

The Senator maintains that the only reason Mr Daventry was charged was because it was “political”. Once again I was only aware of Mr Daventry’s case after publicity that he had been acquitted.

More importantly the Senator failed to inform the Senate that the Office of the Director of Public Prosecutions (DPP) had conducted the prosecution of Mr Daventry. Surely had the DPP formed the view that there was no prima facie case against Mr Daventry or no reasonable prospect of success, the prosecution would have been withdrawn.

The Prosecution of Mr McDonald

Mr McDonald is a union official for the CFMEU who was charged with making threats at a construction site in 2003.

After the case had been heard but prior to the Magistrate handing down her decision, the charge was withdrawn by a police prosecutor.

Mr McDonald was charged before I became Commissioner of Police. I was not aware that Mr McDonald had been charged until after the charge was withdrawn. Like the Senator, I too want answers as to why this case was withdrawn in unusual circumstances. The matter is now the subject of an investigation by the Corruption and Crime Commission. The one thing of which I am certain, however, is that I did not intervene in this prosecution in anyway. The Senator describes the police conduct as “corrupt”.

I can only assume, given the theme of the Senator’s address, that he believes that the charge against Mr McDonald was withdrawn because he is a labor party affiliate.

Interestingly, had I intervened to procure the withdrawal of the charge against Mr Omodei, as the Senator implicitly suggests should have occurred, I would have been subject to the very same allegation that the Senator levels against me with respect to Mr McDonald’s case.

It is not surprising that I deliberately do not involve myself in decisions about who gets charged and who does not. Those are matters for the investigating officers and the DPP, if need be.

Matt Birney

In 2005, Mr Birney was the Leader of the Opposition in Western Australia. In May 2005, Mr Birney undertook a preliminary breath test and was found to have exceeded the legal limit. Mr Birney was taken into custody and tested a second time whereby a reading of 0.047 was returned, which is under the legal limit of 0.05. Mr Birney was not charged with in the police force if we allowed to continue. an offence. Mr Birney also made a complaint against the police.

There exists a long standing arrangement whereby the Police Minister receives briefing notes concerning any operational matter of interest. The fact that the Leader of the Opposition had been taken into custody and complained about the conduct of the police was considered of significant interest. The WA Police simply provided the briefing note to the Minister. The WA Police did not make the information public nor did they advise the Minister to make it public.

The Senator also sought to make much of my radio interview where I indicated that I was unaware who had provided the information about Mr Birney to the Police Minister.

The briefing note was sent by my Ministerial Liaison staff not by me personally. When apprised of that fact, I immediately confirmed that that was the case to set the public record straight.

As a consequence of the controversy surrounding the provision of the briefing note to the Minister, I sought advice from the State Solicitor’s Office as to the propriety of the practice. The advice I received confirmed that the practice is legitimate.

Burglar Beware Advertisement

In 2004, I appeared on a television commercial informing the public that DNA testing would be carried out in relation to every burglary.

Unbeknown to me at the time the advertisement was shot, there was a backlog in the testing of DNA samples. While DNA testing was being carried out, for a range of reasons, some of which that did not involve the WA Police, the testing was occurring at a slower rate than intended.

This situation prompted the Senator to advise Parliament that the “campaign was and continues to be founded upon a lie” and “amounts to a fraud being perpetrated upon the public of Western Australia.”

Historically, Western Australia has had a high burglary rate. The campaign was designed to reduce burglary by a combination of deterrence in warning criminals of the risk of being caught and detection by implementation of the new technology.

Various strategies have been used to address the delay. Recently, in one week alone, 150 DNA matches for burglary related offences occurred.

Objectively, there is no basis on which is can be said the campaign is either a “lie” or a “fraud”.

Conclusion

It is of concern that the Senator did not see fit to afford me natural justice before publicly denigrating my reputation and that of the Western Australia Police.

Parliamentary privilege was designed so as not to stifle robust debate and to encourage candour. Its purpose is not to enable politicians to unfairly denigrate a person or bodies reputation by advancing an ill-conceived theory with impunity.