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Content WindowLegal and Constitutional Affairs Legislation Committee - 01/11/2012
FAWCETT, Ms Rebecca, Acting Deputy Secretary, Community and Public Sector Union
HUNT-SHARMAN, Mr Jon, President, Australian Federal Police Association
McMAHON-HOGAN, Mr Rogan, Senior Legal Officer, Australian Federal Police Association
MUSCAT-BENTLEY, Ms Brooke, Lead Organiser, Community and Public Sector Union
Committee met at 16:20
CHAIR ( Senator Crossin ): I declare open this public hearing of the Senate Legal and Constitutional Affairs Legislation Committee for our inquiry into the Law Enforcement Integrity Legislation Amendment Bill 2012. The inquiry was referred by the Senate to the committee on 20 September 2012, for inquiry and report by 20 November 2012. The bill introduces a range of measures which seek to prevent corruption in Commonwealth law enforcement agencies and to enhance the response of law enforcement agencies to cases of suspected corruption. We have received 11 submissions for this inquiry. All of those have been published and are available on our committee's website.
I remind all witnesses that, in giving evidence to the committee, you are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to the committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee. We prefer all evidence to be given in public, but, under the Senate's resolutions, witnesses have the right to request to be heard in private session. If a witness objects to answering a question, you should state the ground upon which the objection is taken, and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, then you have the right to provide that answer in camera. This public hearing is being televised within Australian Parliament House and is being broadcast live via the Web.
I welcome our first witnesses today, from the Community and Public Sector Union, the CPSU, and the Australian Federal Police Association. We have a submission from the CPSU, which is submission No. 1 on our website, and from the Australian Federal Police Association, which is submission No. 5. Before I ask you to talk to them, are there any changes that you need to make to them at all?
Mr McMahon-Hogan : Yes. If appropriate, we would like to add an additional recommendation to our initial submission. I am happy to provide that either in hard copy now or in soft copy at a later date.
CHAIR: Yes. You can just talk to it, if you like.
Mr McMahon-Hogan : Would you like me to go through it now, very briefly?
CHAIR: If you have got copies of it, we can have a look at it.
Mr McMahon-Hogan : I may well have a copy.
CHAIR: Even if you just talk to it in your opening statement, that will be okay.
Mr McMahon-Hogan : Certainly.
CHAIR: Mr Hunt-Shaman, you have replaced the infamous Mr Vince Kelly, I notice.
Mr Hunt-Shaman : No. Vince is still here. He is the President of the Police Federation and I am the Vice-President of the Police Federation. I have two hats.
CHAIR: That is where I got mixed up. Who is going to go first in talking to us about your submission? Ms Fawcett?
Ms Fawcett : Thank you for the opportunity to appear before the committee today. The CPSU is the principal union representing workers in the Australian Customs and Border Protection Service, AUSTRAC, the CrimTrac Agency, the Australian Crime Commission, the Department of Agriculture, Fisheries and Forestry, the Australian Commission for Law Enforcement Integrity and unsworn officers in the AFP. In each of our agencies our members support tough measures against corruption and measures that are well targeted and well designed to achieve that purpose.
What we see with the Law Enforcement Integrity Legislation Amendment Bill 2012 is a set of reforms that we believe will not have a material impact on reducing corruption and which also represent an incursion into the workplace rights of our members. With me today is Brooke Muscat-Bentley, who will be addressing the impact of drug and alcohol testing and mandatory reporting of serious misconduct, and I will be addressing the proposal to remove unfair dismissal rights for customs employees when they are terminated for serious misconduct as well as the introduction of integrity testing in customs, the AFP and the Crime Commission.
First, to look at the removal of unfair dismissal rights for customs employees, the bill will see customs officers stripped of their right to unfair dismissal protections where the employee is terminated for serious misconduct and where the customs CEO issues a certificate which has the effect of removing that right. This is quite an extraordinary power, and we have four main areas of concern with that.
Firstly, if a customs employee is terminated in this way, they will have no recourse to Fair Work Australia to challenge an incorrect decision. That is a basic workplace right that is enjoyed by every other Australian worker in the national system. We know decision makers do get it wrong and in customs they have got that wrong in the past, but under these provisions there will be no independent umpire to set things right and the only real option for a customs officer in that situation is to seek judicial review through the courts. I think the committee would appreciate that that is an expensive proposition for most people.
Our second main concern with the removal of unfair dismissal rights is that these measures would strip employees of their basic right to procedural fairness. The employee will have no right to answer allegations or respond before they are terminated. We consider that to be at odds with our international obligations, namely the ILO Termination of Employment Convention, which states that the employment of a worker shall not be terminated before they are provided an opportunity to defend themselves against allegations made.
Our third main concern with the removal of unfair dismissal protections is that, if passed, the Commonwealth will be the only jurisdiction in the land to remove these basic rights from its law enforcement and national security employees in this way. All of the state and territory jurisdictions give the agency head of their police forces the right or ability to dismiss employees for loss of confidence or serious misconduct, but all of the other jurisdictions maintain an appeal mechanism of some kind, whether that is unfair dismissal or whether it is through some kind of internal appeals board. It would be quite an extraordinary step for the Commonwealth to remove all appeal rights completely and would put the Commonwealth out of step with every other jurisdiction.
Finally, we are firmly of the view that this power will lead to poor decision making and in the worst cases would be open to abuse. It will allow the customs CEO to terminate the employment of a customs officer with no real oversight. When there are no checks and balances on the decision to terminate an employee, it opens the way for an abuse of that power.
Our members support tough action against corruption and tough measures to support that, but sometimes decision makers do get it wrong. We know that; there is a track record of it. They are more likely to get it wrong in more cases where there is no oversight and no review.
To move on to integrity testing, the bill also allows for the introduction of integrity testing where customs officers, employees of the Crime Commission and the AFP can be subject to internal sting operations aimed at rooting out corruption. It means that, when an officer is working side by side with a colleague, they might be there to set them up and catch them out in some way. We have concerns that this may create a culture of suspicion and mistrust in these agencies. When officers are dealing with potentially dangerous individuals and scenarios, these laws will see them subjected to potential entrapment. Federal law enforcement and national security officers, in our view, deserve our support, not our suspicion, and it is the view of our members in those agencies that, if integrity testing is to be introduced, a strong case needs to be made for it. It needs to be clear that integrity testing cannot extend into the private lives of employees, and there need to be tight controls to ensure that the power to conduct integrity testing is not abused.
Brooke Muscat-Bentley is now going to address drug and alcohol testing and mandatory reporting of misconduct in customs.
Ms Muscat-Bentley : I will start with the random drug and alcohol testing. I think our members broadly support the introduction of drug and alcohol testing; however, they have raised some concerns based on a series of unknowns, primarily what safeguards will be in place to ensure the privacy of employees will be maintained, particularly around the use of prescription medication. Will employees be required to disclose personal medical history and information to an external testing agency or to customs? Why would the use of certain prescription medications bring into question someone's integrity? How will the testing be undertaken? Our members have expressed a firm view that they would prefer customs to consider the use of saliva testing rather than urine testing on the basis that it is less intrusive and also that you can have an immediate result, which would also deal with workplace health and safety issues. What will be the appeal process or secondary testing process? There is also a risk that staff could be unfairly targeted in terms of repeated testing, and what would the safeguards be around that?
In terms of our recommendations, we would want the bill to be more specific about circumstances in which drug and alcohol tests may be used and the results may be used. Specifically, the bill should exclude prescription medications.
In terms of mandatory reporting, I think our members have raised more concerns around this particular issue, namely the requirement to report misconduct based on standards developed by the CEO. Members understand that they would need to report criminal or corrupt activity but are concerned that misconduct is quite broad and, because the CEO can determine that or change what misconduct is, they might not be aware of that misconduct and therefore could be subject to a code of conduct themselves. They are also not really clear about who they would be reporting that misconduct to and what protections would be put in place if they were reporting misconduct of a senior employee.
In terms of the recommendations, the orders that may be made under the section should be limited to reporting criminal or corrupt conduct only and customs should consult with staff and the CPSU to ensure that staff are fully aware of what misconduct is in terms of those professional standards that the CEO will determine.
CHAIR: All right. Let's go to Mr McMahon-Hogan.
Mr McMahon-Hogan : I will keep it brief. On behalf of our members the Australian Federal Police Association welcomes the opportunity to appear before the committee today. Since 1942 the Australian Federal Police Association in its various registered names has continuously represented federal law enforcement officers and other employees of the Federal Police and other organisations. Our members have continuously and successfully provided policing services to the broader Australian public. The AFPA and our membership operate in increasingly complex and dynamic law enforcement, national security and employment environments throughout Australia an internationally.
What we aim to do today is to effectively strike a balance between protecting the rights of our members and other employees and the broader expectation of the community that their law enforcement officials be free from corruption and adhere to specific standards of integrity. While we appreciate that corruption endangers every police officer's safety, reputation and ability to work effectively, the AFPA is committed to building integrity and fighting corruption in the Australian Federal Police and other Commonwealth law enforcement agencies.
That being said, the AFPA does have a number of concerns, which are outlined in its submission before you today. The first and foremost is that we believe, as we have stated in our recommendations, that a statement of compatibility with human rights, with a structure similar to that provided for in the explanatory memorandum pursuant to part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, be prepared for each ACLEI annual report to monitor the impact of integrity testing on targets. Second is that a proposed item should be included in the bill which explicitly states that any behaviour that is subject to a professional standards investigation cannot be subject to a targeted integrity testing operation. Third is that, where investigations exceed 12 months in duration, a provision be included which requires personal approval by the Integrity Commissioner for each subsequent grant of authority to extend the duration of the investigation.
As I flagged with you earlier, we would also like to add an additional recommendation with specific regard to 15JE of the bill before us today. As the section stands, integrity tests of staff members of law enforcement agencies are proposed by another staff members from that specific agency and approved by those in upper levels of that agency. For example, if an integrity test is proposed in connection with a member of the Australian Federal Police then another staff member of the Australian Federal Police can apply to the commissioner, the deputy commissioner or the commissioner's delegate to authorise that integrity test. The concern of the AFPA is that the process does not appear transparent—not so much that will not be transparent but that it may not appear transparent. As it stands, there is no external oversight of the authorisation to conduct investigations. Unfortunately, this would leave the possibility of non-integrity organisational factors influencing decisions on whether or not to conduct an integrity test.
The AFPA believes that it is most appropriate for the integrity commissioner to authorise these investigations. Alternatively, it would be appropriate for the Integrity Commissioner to be informed of and oversee the authorisation of integrity tests within such organisations. External oversight would greatly increase the transparency of the process. It would also remove any possibility of factors other than the integrity of law enforcement from being considered when determining whether or not to authorise an integrity test.
With specific reference to the other matters that we have recommended—specifically those of the question of the extension period of up to 24 months—in its current guise 15JK allows for a specific integrity authority to extend an integrity testing operation or controlled operation for no more than 24 months without independent oversight. The AFPA notes that such protracted investigations that we have seen in the past and similar operations have the potential to unfairly prejudice the future career prospects of our members. We propose, therefore, that the bill should require that, where an extension is to be sought, the personal approval of the Integrity Commissioner should be sought for each subsequent grant of authority to extend that specific duration. Otherwise, we are happy to take questions on any other topic that we have addressed.
CHAIR: Mr Hunt-Shaman, do you have anything to add?
Mr Hunt-Shaman : No, that is fine.
CHAIR: I will start with the first question for Ms Fawcett. In the opening statement you made a comment that prescription medications should somehow be identified in the legislation or that there should be some exclusion for prescription medications.
Ms Fawcett : Yes. We are concerned that the provisions as they are drafted at the moment would pick up or test customs employees for uses of prescription medications and we are concerned that that is an invasion of the employee's privacy, so we would be looking to see prescription medications exempt from the bill.
CHAIR: Could I put it to you, though, that in a way it is linked? If you wanted to ensure that the person working in customs was not involved in any of this conduct, particularly drugs or drug taking, wouldn't common sense assume that whoever is investigating this breach would demand from that person evidence from their own doctor that they may well be taking prescription drugs? If you exclude it from the act then I fail to see how you have a cross-check or balance. What if it is prescription drugs that are being elicited illegally by that customs officer?
Ms Fawcett : I think that if you were not going to exclude prescription drugs from the bill then you would certainly need to put in place some safeguards so that employees who are legitimately using prescription drugs and have a prescription for them do not suffer any kind of adverse action in their employment because they had a medical condition. We just do not see that in the legislation as it stands at the moment and we have certainly not seen any regulations that go into that level of detail.
CHAIR: But wouldn't it be to their advantage to disclose that?
Ms Fawcett : You could disclose it, but presumably a decision maker within customs could make a decision that you were abusing prescription drugs. It is not clear that by virtue of having a medical certificate that decision maker would say that that was legitimate. So it is not clear at this stage that you would have that protection.
CHAIR: So it is further clarification or explanation you are after rather than a legislative change.
Ms Fawcett : I think first we would be seeking for it to be excluded; but, failing that, I think further elucidation of when use of prescription drugs would be okay and what decision makers were to take into account would be one way to go.
CHAIR: In your submission you have put that proposed sections 16B to 16H of the Customs Act would permit any employee to be required to undergo a drug or alcohol test at any time. You are saying, then, that you approve that? There is no disagreement with that provision? This is on page 2 of your submission to us.
Ms Fawcett : The earlier provisions of the bill—16B and 16H—talk about drug and alcohol testing in certain circumstances. I think our main concern is with a later section which basically allows drug and alcohol testing in any circumstances and at any stage without any clear reason. We are most concerned about that provision that allows drug and alcohol testing in any circumstances. I think that is section 16C.
CHAIR: If you wanted to uphold the integrity of the members you wanted to represent, why would that not be a good thing? Why would you not encourage that all of the border protection and customs people, whenever they were at work, were clearly without drugs or alcohol in their system unless they had a prescriptive reason to do so?
Ms Fawcett : I think what we are looking at here is protecting against an abuse of that power. At the moment, the way it is drafted says a decision maker in section 16C could drug and alcohol test a certain employee that they did not like as many times as they liked on as many occasions as they liked and without any clear reason. We are not against drug and alcohol testing to keep border protection agencies and to keep them doing the job that they need to do; the issue here is about protecting against an abuse of that power, and the way that section 16C is drafted is so very broad as to allow an employee to be drug and alcohol tested, hypothetically, every day that they come to work if their supervisor happens not to like them or there is some other issue going on.
CHAIR: So perhaps that section needs to clearly outline the intent as to why the CEO would require that or maybe link it.
Ms Muscat-Bentley : And perhaps have some clarity around what 'random' is, because I do not think it is really clear about how the testing could be undertaken. They could actually test the same person over and over again, so maybe some extrapolation of that.
CHAIR: I think we saw from you an article about the anticorruption laws today. You have here the inferences that people should not be instantly dismissed if they are caught up in this and that there should be an investigation rather than having them instantly terminated. If in fact there were a criminal breach and it were quite severe whatever the people you represent had undertaken, why would there not be an instant dismissal? Surely you are not suggesting that each and every time there be an investigation rather than the option to instantly dismiss.
Ms Fawcett : Under the Public Service Act as it now stands the agency has the ability to terminate an employee for serious misconduct and to stand that employee down—while an investigation is being carried out, for example—and completely remove them from the workplace. So those powers already exist. The part of the bill that we take issue with is the ability of an employee to be dismissed and to have no ability to answer any allegations made against them. The CEO is able to issue a certificate which completely removes that employees rights to unfair dismissal and to have that decision tested. Nine times out of 10, that power might be exercised in a correct way; it is the tenth example, where there is no ability for an employee who is subject to an incorrect decision to have that decision tested and reviewed, that is incredibly concerning. So the powers already exist for an employee to be removed from the workplace; we are just concerned about a lack of recourse, a lack of oversight and a lack of review of what sometimes can be wrong decisions.
CHAIR: So again you would be looking for guidelines or policies about how this legislation is implemented rather than changing the legislative base?
Ms Fawcett : It is our view that the legislation actually does need to be changed. I think there is quite a lot of guidance here in this area. The committee can look to the laws in all of the other states and territories around the country and see that in all jurisdictions there is either an internal appeal board that can hear an appeal or the maintenance of unfair dismissal rights. So there is certainly an example to look to in every other state and territory jurisdiction. Our recommendation would be that that would need to be included in the legislation.
CHAIR: I have one last question for Mr McMahon-Hogan. Your first recommendation is about a statement of compatibility with human rights. I think it is a good idea if it goes in an annual report, but would you not want it broader than that? Would you not want in the annual report a report on the integrity testing and within that have a statement of compatibility? What are you looking for?
Mr McMahon-Hogan : I think there is scope for growth above and beyond what we have suggested. I think it is probably best put by one of our previous AFP commissioners, Commissioner Palmer, who said that incurring rancour and indignation of the rank and file—and it could be argued that divisiveness and acute circumspection that creates—militates against a unified agency and destroys positive as well as negative aspects of the police subculture. Effectively, what we have to appreciate is that any form of integrity testing, whether targeted or random, will create a system-wide approach where police feel that they have to constantly look over their shoulder. That is not to suggest that we do not in any way support integrity testing across the organisation; however, we need to appreciate that these are people and that these people are in a stressful environment, often overseas, often in rather dangerous circumstances, and therefore we need to be making sure that, at least yearly, as we proposed, certain conventions are being adhered to and that the rights of those members are being protected.
CHAIR: So you would most definitely want to see after the enactment of this legislation additional reporting information in ACLEI's annual report.
Mr McMahon-Hogan : Absolutely.
Senator HUMPHRIES: I will follow up that last question from the chair about the idea of targeted integrity testing. I do not fully understand why that is different from random integrity testing and why it is better than random integrity testing in your view.
Mr Hunt-Shaman : Internationally there is no other country that has random integrity testing. That is random entrapment, if you like. The targeted testing obviously has to have the suspicion that the person is committing some type of criminality, and the concept is that you then test them to see if they will behave inappropriately in that regard. It has been rejected with regard to random because, once you do it, you cannot use the same test again, because part of it is an educational exercise. For example, if you are leaving $20 on the ground to see if someone picks it up and keeps it and then action is taken against them, the obvious thing is that every time anyone sees a $20 note on the ground they know it is an integrity test. So they have to keep coming up with new ideas. It is very expensive to do, especially if it is with regard to complex integrity tests. We have been through all that previously in our presentations. The fact is that targeted testing is really the only way to go. In Australia there is no jurisdiction that has random.
Senator HUMPHRIES: So how likely is it that a person's questionable integrity would come to the attention of superiors in the organisation such that they would be subject in due course to the targeted testing? Is there a good chance that, if a targeted approach were taken and you were very careful about your lack of integrity, you would get away with it because no-one would know what you were doing?
Mr Hunt-Shaman : With targeted testing, as you know, with the AFP there are various integrity measures in place already: financial disclosure, your security clearance, random and targeted drug and alcohol testing, a whole range of integrity measures that we support and a confidante network to allow anonymous reporting of inappropriate behaviour. All those structures are in place; and, if there were information regularly coming in about an individual—for example, complaints by members of the public that it appears that when a person is on a search warrant money goes missing, they could then use that as reasonable grounds to suspect that individual is stealing money in search warrants. They can then create a false search warrant on a premises with money in there, have the place wired with technical equipment and then catch the person stealing the money. So targeted would be very helpful with investigations where there is already the suspicion that someone is committing criminality.
For another example, if you look at the Wood royal commission, there were cases where police officers were taking bribes to not investigate or to close down a brief of evidence and not proceed to court. The suspicion was there, and you could set that all up with an alleged criminal asking to get a brief to go away and offering $100,000 or whatever.
Senator HUMPHRIES: I fully understand why you need targeted testing. That is a good idea. My question is: why not have some of both? What is wrong with having random and targeted testing?
Mr Hunt-Shaman : I again go back to the issue with random. It has been unsuccessful. It has only been tried in one place—New York—and was unsuccessful.
Mr McMahon-Hogan : I think the figure quoted in our submission before you is that out of 826 random tests that were conducted by the New York Police Department, there was only one test failure. Quite frankly, the notion that random tests are effective I simply do not think the empirical evidence supports. You end up in a situation where not only do police officers continually have to look over their shoulders but you have created an attitude in the workforce where you have a negative effect on morale since police feel that they are not trusted—and you have to remember that trust is an integral aspect of the Federal Police. It generally fails to promote a professional, ethical workforce. It has also been found to impede efficiency since police are constantly looking over their shoulders, wondering if they are being checked.
In the current system the Australian Federal Police under part 5 of the act, established as a result of the Fisher review, currently have a highly-effective mechanism fighting misconduct and corruption. That is undertaken under part 5 by the professional standards section of the organisation. Above and beyond that, currently the AFP falls under the domain of ACLEI, and ACLEI may undertake certain forms of integrity testing as it currently stands. This bill presents an opportunity to go one step further. Instead of the threshold being three years, it is bringing it down to 12 months. We certainly see the value of that, but we need to make sure that certain checks and balances are in place within the organisation to make sure that that is not abused.
Senator HUMPHRIES: I have a question for CPSU as well. Ms Fawcett, you said as you were giving evidence that integrity testing cannot intrude into the private lives of our members. I found that puzzling. Surely integrity is an issue which more or less goes to a person's private as well as public life. You cannot have integrity in a private sense but not in a public sense, can you?
Ms Fawcett : I think it goes to the distinction of when an officer is on duty and when they are not. I think seeing integrity testing extending into employees' private lives—at functions they might be at, for example—would be pushing the issue too far.
Senator HUMPHRIES: To take Mr Hunt-Shaman's example, if a custom's officer saw $100 on the ground, picked it up and pocketed it when they were in their civvy clothes, is that really any different from doing so when they are in their uniform?
Ms Fawcett : I suppose the act is egregious wherever it occurs, whether it is in the workplace or in their private lives, but we would say that employees deserve some level of privacy when they are off duty, at home and in the private sphere.
Senator HUMPHRIES: Even if it goes to their integrity?
Ms Fawcett : It is a case of degrees really, isn't it?
Senator HUMPHRIES: Indeed.
Mr Hunt-Sharman : I would like to reiterate the issue that we have concerns about, which is the fact that we would like to see dual authorisation with the ACLEI commissioner to authorise an investigation whether it is or is not corruption integrity testing. We see this as very important in the sense that it is an anticorruption measure in itself to ensure that there is an independent person authorising the testing and that it is not done internally. A good example of that is where in certain jurisdictions we have even had commissioners found to be corrupt and senior officers of police forces found to be corrupt. The danger with this model, as it is written at the moment, is that a senior officer who is corrupt could organise integrity testing on an innocent police officer. That is the big danger. So all that we are asking for is a dual authorisation type model that happens at the time with the Commissioner of ACLEI so that we have transparency but also an anticorruption measure in itself.
Senator HUMPHRIES: So this independent person presumably would need to speak to the member of the AFP who came forward with the complaint that led to the suggestion of an integrity test and he would satisfy himself that this person had a real concern that needed to be addressed with an integrity test?
Mr Hunt-Sharman : Yes. Because it is targeted, they have to prove that there is reasonable suspicion. As it stands, a delegate of the AFP commissioner can authorise it. What we are saying is that that reasonable suspicion should also be looked at by the Commissioner of ACLEI to dually sign off on the actual test going forward—not just reporting at the end of the year on how many occurred but actually authorising it in the first place. When it is a corruption matter, the ACLEI commissioner authorises it. So we are just asking for an extension of his powers to be able to do it for all integrity testing, whether it is a corruption matter for not. As I said, I believe that we can extend that in regards to the Commissioner of ACLEI because it would be an anticorruption measure having that secondary check.
CHAIR: I thank the four of you for the two submissions you have provided to us and for making yourselves personally available today.