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Legal and Constitutional Affairs Legislation Committee
(Senate-Thursday, 30 May 2013)
Australian Commission for Law Enforcement Integrity
Australian Crime Commission
Australian Federal Police
Australian Government Solicitor
Australian Security Intelligence Organisation
Insolvency and Trustee Service Australia
Office of the Director of Public Prosecutions
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Australian Federal Police
CHAIR: Commissioner Negus» , good morning and welcome to you and your colleagues. Do you have an opening statement?
Senator MADIGAN: Good morning, Commissioner. I assume that there is a war crimes section in the Australian Federal Police, is that correct?
Senator MADIGAN: Does this group have a formal name?
Mr Colvin : It is our special reference area. They deal with a lot of our more sensitive, difficult or political investigations as well as things like war crimes, yes.
Senator MADIGAN: When was this group put together?
Mr Colvin : This team has been in existence in one form or another under different names for a decade or more. It is a headquarters-based investigations unit.
Senator MADIGAN: How many personnel are involved in this unit?
Senator MADIGAN: You can take that question on notice.
Mr Colvin : I will have to.
Senator MADIGAN: Are you able to tell me what sort of money is allocated to the budget for these investigations currently?
Mr Colvin : For war crimes investigations, I would definitely have to take that on notice.
Senator MADIGAN: Could you also take on notice how much has been spent in the last five years on war crime investigations.
Mr Colvin : We can take that on notice.
Senator MADIGAN: Are you able to tell me how many investigations it has carried out in the past five years?
Mr Colvin : I can give you some statistics of referrals and investigations. I will give you two financial years worth of referral statistics. In the financial year 2011-12, we received five new referrals for war crimes allegations; we accepted four of those for investigations and rejected one. In the current financial year we have received a further four new referrals for war crimes matters; we have accepted two of those, and have two that are currently under evaluation. In the last two years nine matters have been referred to us, of which we are investigating six and evaluating two further ones.
Senator MADIGAN: Over the years that this group has existed, how many briefs of evidence has it provided to the relevant Director of Public Prosecutions?
Mr Colvin : I would have to take on notice how many we have provided to the CDPP.
Senator MADIGAN: Further to that, I would like to know how many convictions have resulted as a result of your briefs of evidence.
Mr Colvin : There have been no convictions under Australian war crimes legislation that we are aware of. If that is not correct, I will correct the record.
Senator MADIGAN: How much has the Australian government spent to date on the Jakarta Centre for Law Enforcement Cooperation?
Mr Wood : I can probably get that figure during the hearing. I do not have the data going back for the full period that JCLEC has existed, but I should be able to get that texted through to the team here and put it on the record during the hearing. Certainly, the expenditure in JCLEC is not just from the Australian government. There is a series of donors, particularly from the European Union or from the United States, who also invest.
Senator MADIGAN: We can only deal with what Australia contributes, so that is what I would like to know.
Mr Wood : I will get that for you, Senator.
Senator MADIGAN: Are you able to tell me how many extradition requests the Australian government received from the Indonesian government in the past 10 years?
Senator MADIGAN: What is the current status of the investigation into the deaths of the five Australian-based journalists in Balibo, East Timor, in 1975?
Mr «Negus» : That operation is ongoing. It has been going for a number of years. It is one of the ones I was referring to that are existing matters. We have undertaken a range of inquiries overseas and we are currently awaiting on the results of those. I said at the very beginning of this, probably in 2009-10, that war crimes give rise to a range of complex legal and international matters. This was always going to be a difficult investigation after it was referred through the Attorney-General's Department from the deputy state coroner in New South Wales, after the hearing was there. We have endeavoured to collect all information possible, but we are still waiting on information to come back from overseas inquiries at this point. So it is ongoing. During that time, I might add, we have endeavoured to keep the families of the people killed in 1975 updated regularly on the progress of this matter, but, as I said, it is always going to be a difficult matter because the evidence that is required must be collected in overseas jurisdictions.
Senator XENOPHON: Can I just follow that on, Commissioner. Have the Australian Federal Police interviewed any witnesses in Indonesia, East Timor, Portugal, Macau or Australia?
Mr «Negus» : I think it is dangerous for us to step into who we have interviewed at this point. It is an ongoing criminal investigation. We have interviewed witnesses overseas, I will certainly confirm that. But, as a matter of identifying who those potential witnesses are—or even their locations—I think we are in dangerous ground of perhaps compromising the outcome.
Senator XENOPHON: So you cannot confirm whether you interviewed Guido dos Santos, an eyewitness to the killings?
Senator XENOPHON: Does the fact that Mr dos Santos is now dead compromise you in any way? What is so funny, Mr Wilkins? I just want to know whether or not a person who apparently was an eyewitness to the killings, who is now dead, was interviewed?
Mr «Negus» : As you can appreciate, whether people were interviewed, whether they have been given an opportunity to provide information, «may» well give some sort of concern to other people who «may» be interviewed into the future, so we are not prepared to disclose those issues at the moment.
Senator XENOPHON: What if I were to suggest to you that maybe he was not interviewed. I am just worried that there could be key witnesses to these killings, to these murders, that, because of the effluxion of time, will simply die.
Mr «Negus» : Can I reassure you that the passage of time is of concern to the «AFP» as much as anyone. We have endeavoured to conduct this investigation as quickly as possible. There are very complex international arrangements—mutual assistance requests and those sorts of things which I cannot really go into any more detail about—which by their very nature take some time. The «AFP» has had investigators working on this for a long period of time. We take this investigation very seriously, and those who can be interviewed and are available to be interviewed and can be lawfully interviewed will be done so as quickly as possible. That is really all I can say at the moment.
Senator XENOPHON: But in order to interview someone as quickly as possible, as you say, does that in part depend on, for instance, the cooperation of the police force or military in Indonesia?
Senator XENOPHON: Can you tell us how often the Australian Federal Police have interacted with the Indonesian National Police on this investigation?
Senator XENOPHON: So you cannot tell us whether there has been any interaction with the Indonesian National Police?
Mr «Negus» : I am not prepared to put on the public record the investigative practices or processes that have taken place in this investigation because it remains ongoing, and to do so «may» compromise our ability to collect evidence from those locations that you are talking about.
Senator XENOPHON: I am in contact with two of the families of the deceased, the Balibo Five. I think we are trying to arrange a meeting with one or two of them with the Federal Police and I am sure that will be arranged shortly. They have posed this question to me. The coronial inquiry referred this matter back in 2007.
Mr «Negus» : It certainly did not come to the «AFP» in 2007. I think the coronial process took place then. It was then referred through the Attorney-General at the time, through to the Attorney-General's Department and then to the «AFP» for investigation. I think it was 2009.
Senator XENOPHON: Okay, so it has been four years now?
Senator XENOPHON: Can you at least indicate whether any evidence has been collected in relation to this matter?
Mr «Negus» : I can say we have certainly spoken to a number of witnesses, we have put in requests for material which we think will be important in the investigation and we have sought extensive legal advice about a range of possible charges that could be levied. There are issues of time, issues of reciprocal offences and issues of whether a state was considered to be at war or not at war. These are all very complex issues which our investigators are working their way through. The main issue, as I said, around the time is that requests are made in foreign jurisdictions for support and assistance and it takes time to get those answers back, which is beyond our control.
Senator XENOPHON: Are you frustrated about the delays? There clearly have been delays in terms of questions for either requests for assistance or specific questions made in relation to the deaths of the Balibo Five.
Mr «Negus» : I would have liked to have seen this done more quickly, but I understand the process, I understand that this is not unique to this investigation and that sometimes these things do take quite a while to resolve. As I said, it is a very complex legal environment as well as a complex environment in which to conduct an investigation.
Mr «Negus» : I can assure you that we have regular contact with the Department of Foreign Affairs and Trade, as we do with the Attorney-General's Department and as we do with any other government agency that could assist us in working our way through this.
Senator XENOPHON: I appreciate that this is a very sensitive matter, but Shirley Shackleton—who is in her 80s now—wants some resolution in relation to this. Have you actually moved past the legal analysis? In other words, are you now in the evidence gathering stage?
Senator XENOPHON: My understanding is that Professor Ben Saul has provided an opinion that says that there is jurisdiction here in terms of a war crimes prosecution.
Mr «Negus» : We have a range of legal advice. As I said, it is a very complex area and I would certainly not be able to take one set of advice on a particular set of issues as being gospel on any of this, because there are a range of considerations.
Mr «Negus» : The fact that we evaluated the referral from the state coroner through the Attorney-General's Department and we accepted this for investigation was an acknowledgment that, prima facie, there needed to be an investigation to get to the bottom of whether or not a prosecution was possible and whether it was possible to collect sufficient evidence to put a matter before the DPP and ultimately the courts. So we accepted that at the time, and we have been, for the last four years, working very hard to try and collect sufficient evidence to put that matter before the DPP and ultimately the courts if possible. So, prima facie, we have accepted that—we would not conduct an investigation if it were impossible at law, if I can put it that way.
Senator XENOPHON: I think that Mark Tedeschi QC accepted and used this legal opinion of Professor Saul.
Mr «Negus» : I do not doubt the legal opinion. As I said, we have a number of legal opinions, including some from really pre-eminent Queen's Counsels in this country, about jurisdiction and about issues such as that, which we are considering as part of the whole process. It is very difficult for me to explain this on the public record as a current investigation, but I can assure you that our will to see this to a conclusion is very strong. I cannot promise you that it will ever see a conclusion in the courts, because there are a range of difficult issues which we are still working through, but, as I said, we are doing our best to resolve the matter to a point where we can make judgements about that.
Senator XENOPHON: My final question on this, subject to my colleague Senator Madigan, who also has a very keen interest in this matter, is: do you have an ongoing funding commitment from the Australian government for this investigation, and is there any sunset clause related to this investigation?
Mr «Negus» : We do have funding as part of our base funding. It is discretionary, and we can use that as we see fit. To this point, to give you an idea, we have spent around $470,000 on the investigation over that four-year period. That is wages as well as inquiries.
Mr «Negus» : That is right, because we are waiting on material from overseas jurisdictions before we can actually take this any further. There are still inquiries ongoing. They are not high-cost inquiries, but we are doing what we can. Can I just say too that, for the families—and I know you have mentioned Shirley Shackleton—we have done our best to make sure they are kept up to date in the process. We have not given them false hope that this is going to be easy, but we accept their keen interest and their keen will to see this to conclusion, as we do. But we have to understand how difficult this is. When we first announced this in 2009, I think I might have even been acting commissioner at that time before I was sworn in. I have the statement I made. I said: 'Allegations of war crimes give rise to complex legal and factual issues that require careful consideration by law enforcement agencies before deciding to commence an investigation.' We did decide to commence the investigation because we thought there was sufficient there for us to go forward. It has been a difficult process, a very complex process, as we predicted in 2009, but our will to see this to a conclusion remains.
Senator XENOPHON: Hopefully, I will be able to get some more detailed answers in the course of a briefing of family members that I will be attending.
I need to ask you a series of questions in relation to the Surveillance Devices Act and the Telecommunications (Interception and Access) Act. I think I gave you a heads-up before we commenced. The context of this is the reports coming out of the United States that the US Attorney General, Eric Holder; the Obama administration; and the Department of Justice are currently the subject of widespread scrutiny and criticism for obtaining telephone records for more than 20 separate lines assigned to the Associated Press and its journalists. The issue is that that does not require a warrant. That is United States legislation. Is it the case under the Australian legislation, particularly under sections 178, 179 and 180 of the Telecommunications (Interception and Access) Act, that, in order to obtain the phone records and the phone data and also presumably the Facebook and Google data of a person, you do not actually need to get a warrant?
Mr «Negus» : Non-content data—that is correct; we do not need a warrant. I might introduce Deputy Commissioner Mike Phelan, who heads the area responsible for this and has given extensive evidence to the Parliamentary Joint Committee on Intelligence and Security, which has been considering this and data retention and a range of other issues. I will ask Deputy Commissioner Phelan, who has much more knowledge about this than I, to respond.
Mr Phelan : As the commissioner said, we have given extensive evidence to the Parliamentary Joint Committee on Intelligence and Security, who are currently doing an inquiry into changes to telecommunications and national security legislation, and a lot of our evidence is obviously on the public record there. We have given details about what the powers are to intercept content and the difference between content and non-content data. You are right: when it comes to non-content data, under the Telecommunications (Interception and Access) Act the «AFP» can have access to that data by way of an internal authorisation. That internal authorisation is done at the superintendent level and under those three particular sections that you called out. The first one, which is the majority of our requests, has to be to enforce the criminal law. The second category is in relation to missing persons, and the third one is in relation to enforcing a pecuniary penalty order. I have some statistics here for last year, if you are interested in how much—
Senator XENOPHON: Sure. I want to drill down into how many authorisations were made under those sections over the past five years, for instance, or even for last year will do, and you can take the others on notice.
Mr Phelan : I have got the last two years right in front of me.
Senator XENOPHON: That is fine. How many?
Mr Phelan : These are for the last two financial years. In 2010-11 we did 50,841 requests. Under each of those particular sections: under 178(2) we made 49,977; none in relation to missing persons; and 864 in relation to enforcing of pecuniary penalty orders. In 2011-12, under section 178(2) it was 43,006; in relation to missing persons it was 73; and in relation to pecuniary penalties it was 283.
Senator XENOPHON: Does that relate to getting access to Facebook and social media sites as well?
Mr Phelan : No, because things like Facebook, Google and so on are overseas. Depending on the entity themselves, if we want to get details of those particular individuals we have to make a request to the United States and, more often than not, that requires some sort of mutual assistance request.
Senator XENOPHON: Are there requests? Have requests been made to the United States in relation to Facebook and Google?
Mr Phelan : We have made a number of requests over the time.
Senator XENOPHON: On notice, can you tell me how many requests have been made?
Mr Phelan : We should be able to find that out.
Senator XENOPHON: Were they in the dozens or hundreds each year?
Mr Phelan : I cannot say.
Senator XENOPHON: During this time, did any carriers or carriage service providers not provide information in response to requests made?
Mr Phelan : Yes. From time to time, they actually do not have the information available. This is subject to the current review at the moment. When we request information—for example, for subscriber details—under 178, we might also be after details of IP addresses and details as such. If a content service provider does not have that information, because they have not kept it in their database or their systems do not allow them to keep that information, then we do not get a request back. In terms of refusals, no.
Senator XENOPHON: It is sometimes: 'We can't provide because we just simply do not have it.'
Mr Phelan : No, it is a lawful requirement to provide it.
Senator XENOPHON: How many of these authorisations were made in the context of investigations into suspected unauthorised disclosure of government information—in other words, leaks?
Mr Phelan : I cannot tell you. That information, whilst we would have it, would be extremely difficult to be able to pull out. We would have to do it investigation by investigation. I say that because when we gave evidence before the parliamentary joint committee we were asked very specifically around different crime types in relation to drugs, fraud et cetera. We would have to go back through every single one of these investigations and see whether or not on our system we made these specific requests. So trying to drill down—
Senator XENOPHON: But you can provide that information on notice?
Mr Phelan : It is there. I do not know if we would be able to extract it out. I cannot give you an unequivocal—
Senator XENOPHON: We are talking about, for instance, section 70 of the Crimes Act: an unauthorised leak of information from a public servant to a media organisation or, indeed, to a member of parliament. Surely you would have some idea whether there were any authorisations in respect of that?
Mr Phelan : Yes, we do. The information is there. I am trying to explain to you that it would be problematic to pull it out.
Senator XENOPHON: The two relevant sections of the Crimes Act are sections 70 and 79. Surely you would have an idea whether it is in the dozens, hundreds or thousands each year where you get these phone records in respect of leak inquiries.
Mr Phelan : I could say that any particular investigation, depending on the complexity of the investigation, would determine how many of these particularly inquiries we would make. In some it would be not so many; in some we would make a lot. I could tell you, though, that the vast majority of the 40,000-odd we made in 2011-12 would be relating to serious and organisation crime investigations. I can take it on notice, Senator.
Senator XENOPHON: Are you not in a position to tell the committee how many referrals there have been under sections 70 and 79 of the Crimes Act for those authorisation powers, particularly under section 178 of the Telecommunications Interception and Access Act?
Mr Phelan : It is a two-step process. First of all, we have to find out how many of those investigations we have in relation to those particular sections, which someone else could probably give evidence on. Then, we would have to extract out of those investigations how many times we have made requests under section 178 for information. So it is possible.
Senator XENOPHON: Right, and I am trying to establish how many times it has been used.
Mr «Negus» : I think if we were able to tell you how many leak investigations we have conducted in the last 12 months, which Mr Colvin «may» have the details for, we could answer that. Whether there were multiple requests within a particular investigation is more problematic because we would not disaggregate those numbers down unless we went through manually the 48,000 or the 50,000 that we have talked about here.
Senator XENOPHON: But there could be several hundred for instance in terms of leak investigations.
Mr «Negus» : We do not get several hundred leak investigations per year. As I said, Mr Colvin might have the details of how many leak investigations we have run, but it would be rare for us not to use this capability. This capability is a standard investigative capability which helps us get to the essence of whether or not something has taken place.
Senator XENOPHON: I appreciate what you are saying, but the fact is a journalist who has their phone records obtained, and you can usually triangulate with the data as to who they were talking to and when, would be none the wiser that their records had been obtained, would they?
Senator XENOPHON: Then let me go to a group of people that are maybe not so astute: members of parliament. The situation is that you do not need to get a warrant for the phone records of members of parliament. You can access their phone records.
Mr «Negus» : No, we do not. I just want to be very clear that this is non-content data. So not the essence of what is in the telephone call, but when the phone call was made, the parties it was between and the time and duration. That is what we are after.
Senator XENOPHON: Okay, but you would know whether members of parliament were the subject of these authorisations, would you not?
Senator XENOPHON: Would it be fair to say that members of parliament have been the subject of these authorisations?
Senator XENOPHON: Why not? I am not asking for the names of the members.
Mr «Negus» : I am not sure, to be quite honest. I can say that this is not used willy-nilly. This is something that is lawfully done under the act. It needs to be an investigation of what is considered a criminal offence. You mentioned sections 70 and 79. These are criminal offences which the «AFP» are charged to investigate, and this is an investigative tool. Really, members of parliament are no different to anyone else in the community.
Senator XENOPHON: I am not suggesting that.
Senator XENOPHON: Yes, although for some reason people within the public service who have information that they believe is in public interest, in the absence of adequate whistleblower protection laws, tend to ring members of parliament and want to share information that they believe is in the public interest that could be of use for a «Senate» inquiry, for instance.
Mr «Negus» : I understand that, but where it is alleged to be a breach of the law it is our duty to investigate the matter and then it is a matter for the courts to interpret whether it is in the public interest as a whistleblower or something that has been a breach of the law.
Senator XENOPHON: So you cannot tell me, Commissioner or Deputy Commissioner, how many leak investigations there have been in the last 12 months?
Mr Phelan : In the current financial year we have had five referrals to us of which four are being investigated, and one of them is under evaluation. Last financial year, 2011-12, there were five new referrals; two of them were investigated and three of them were rejected.
Senator XENOPHON: But once you get those phone records you can use them for other purposes, in the sense that you can establish who has been talking to whom at a particular time and at a particular location. There is nothing to stop you from using it for other purposes.
Senator XENOPHON: So you can get a journalist's sources, in a sense, even on other stories?
Mr Phelan : We will know the numbers they have called. Whether or not we have gone to the next step of making further requests under section 178 to find out who those numbers belong to is a matter for the investigations team on a case-by-case basis.
Senator XENOPHON: Can you say where these referrals come from? Are they from the Attorney-General's office? Are they from a particular ministry?
Mr «Negus» : That extension that the Deputy Commissioner has talked about would only occur if further criminal activity had been divulged. This is not a fishing expedition; it is not treated as such. This is to really interrogate the criminal offence that is being investigated and to look at possible sources of that investigation. Again, because it remains in our database from that point forward, it is not accessed unless there is another criminal investigation that is being investigated.
Senator XENOPHON: For instance, under section 79. But, to me, it does not seem so much a fishing expedition as a deep trawling expedition because you can actually get all of their phone records and work out who they have been speaking to over a considerable period.
Mr «Negus» : For a lawful purpose, and it is under the act. This is not something we have made up; this is the law. It is a tool that we use. It is a tool that we use very responsibly. The PJCIS is considering all these issues in reviewing the act.
Senator XENOPHON: Sure, but my understanding is that these records can actually go as far back as 10 years. Is that fair enough? It goes back a number of years.
Mr Phelan : We could get records back that far, if they existed. As a general rule, though, the vast majority, I mean over 80 per cent, of our records would go back six months at most.
Senator XENOPHON: In terms of what you do with this information, what mechanisms are there for oversight?
Mr Phelan : For these particular sections of the act we have to report back to parliament on their use in terms of the numbers of them, and any other oversight is internal, just like all the other business that we do.
Senator XENOPHON: I understand the importance of the work that you do with organised crime and drug smuggling, and I respect that. But, when it comes to issues of sections 70 and 79 of the Crimes Act, you actually build up a pretty incredible database, that could go back a number of years, of, for instance, a journalist or even a member of parliament; who they spoke to; and who they have been speaking to over a number of years. You have quite a database under this authorisation power.
Mr Phelan : It is not as simple as that. Every time we make a request, we have to have a legitimate reason to do so. Whilst we might have one in the very first instance to do, for example, a call charge record on an individual because we are trying to track down the leak, whether or not we actually trace down all of the other ones—the numbers that have been called—we have to do on a case-by-case basis. If something is historic and in the system, we have to have a new nexus again to be able to go back and check the details of those phone numbers.
Senator XENOPHON: What treaties govern the process of trying to get something from Facebook or Google?
Mr Phelan : It depends on which country it is. Google and Facebook are in the United States, so generally those companies will not hand over the information to law enforcement agencies without some sort of request from the United States government, which we request through mutual assistance in criminal matters.
Senator XENOPHON: Could you tell us how many, including Twitter? Can you do a request on tweets?
Mr Phelan : Yes, we can make those requests. Sometimes we get things on a law enforcement to law enforcement basis, but sometimes we do not.
Mr «Negus» : Again, this is more a matter for the department. We would make a request through the Attorney-General's Department, and they would be the agency who would make a formal request to the US authorities on our behalf.
Senator XENOPHON: Deputy Commissioner Phelan, there is a software program, I think it is call Analyst Notebook, that can crunch all of these details to sort of work out who has been talking to whom. Is that the software program you use?
Mr Phelan : We use it sometimes, but we have other programs as well.
Senator XENOPHON: Okay, but it is one of the programs that you can use. So you can mine a fair bit of information from these records of journalists.
Mr Phelan : Not just journalists—if we have any journalists in there.
Senator XENOPHON: No, I am talking about sections 70 and 79.
Mr Phelan : We can. We can analyse that data, and that is the purpose of why we get the data: so that we can analyse it.
Mr «Negus» : Senator, I have one final point. We have talked about sort of relativities here. I think, in broad terms, last year the «AFP» investigated over 4,000 matters. Five of those were leak matters. So it puts in perspective the broad range of investigations we do, and this is a very small part—a very important part—in the access to this material and we have said that to the PJCIS in their considerations of this matter, particularly with how long they will hold content data for us to go back. The state police have also expressed their concerns about this for cold case homicides, for organised crime investigations and a whole range of things where these can be really important opportunities to put patterns together. I know you acknowledge that.
Senator XENOPHON: Yes, I do acknowledge that.
Mr «Negus» : As I said, from a context perspective, there are over 4,000 investigations per year and we are talking about five leak investigations, which «may» bring into focus the sorts of things you are talking about.
Senator XENOPHON: And you have my full support in those terms, but I guess I have a different view of section 70 and 79.
Mr «Negus» : I understand that and there have been many views put forward to the PJCIS on this. It is a very emotive issue and an issue people have strong opinions on. What we would like to see is a balance in all of this. We expect appropriate oversight. We expect appropriate legal authorisation for the more intrusive aspects of what we do. We accept all of that without question. But we also need the tools to continue to attack organised crime in the way we do.
Senator XENOPHON: Can you advise, on notice, whether any members of parliament have been the subject of these authorisation orders?
Senator XENOPHON: You are elevating us you know, comparing us to real estate agents!
Mr «Negus» : I hesitated because I did not want to bring too many people into the mix, but we do not categorise people by what their job is, whether they be journalists, members of parliament or police officers.
Senator XENOPHON: Commissioner, come on—you know very well that members of parliament are more likely to get information about malfeasance or from a whistleblower than a real estate agent, from someone in the public service. I am not sure that Century 21 Belconnen gets too many calls from people dissatisfied with—
Senator XENOPHON: Why can't you tell us whether any members of parliament have been the subject of these authorisations?
Mr «Negus» : Well, I do not recall any, off the top of my head, and we are talking about five investigations of leaks in each of the last two years. I do not recall any. These things are not done without proper consideration of the requirement here, and also understanding and respecting some of the issues you have raised here; that is certainly part of what we do. I cannot recall any off the top of my head, but I will take it on notice and see whether we can supply you with any information or whether we think that is stepping too far across the line.
Senator XENOPHON: And in the meantime I will use a friend's SIM card in future. Thank you.
Senator PARRY: Senator Xenophon mentioned the question of what the oversight mechanism is in relation to operations of the Australian Federal Police. Would you agree with the statement that the Parliamentary Joint Committee on Law Enforcement has a particular direct oversight of the Australian Federal Police and can ask these sorts of questions in camera as well as in public session?
Mr «Negus» : Yes they do, and there has been quite substantial evidence provided in camera about the sort of covert and other activities that the «AFP» and other law enforcement agencies undertake for the advice of parliament.
Mr Wilkins : The people who deal with that were here last night. You wanted it in group 3, right?
CHAIR: That is group 3. So you will probably have to put that question on notice, Senator.
Mr Wilkins : If you put it on notice, Senator, that would be best.
Mr Wilkins : There were people here last night to answer these questions and that could have been raised then—
CHAIR: Is that also group 3?
Mr Wilkins : in group 3.
Senator LUDLAM: I will explain the context, but in a moment. I have been referred here by another agency who refused to answer a question and said I should talk to the Attorney-General's Department. But let us come back to it and it might be disclosed as we go. Commissioner, the Federal Police uses Section 313 notices under the Telecommunications Act to compel internet service providers to knock out a subset of content listed by Interpol—their so called 'worst of' list—and maybe you want to just track back for us the history of when you first started issuing those, and how you think that process is going.
Mr Phelan : The information that I have here is that the first time we started to issue 313 notices specifically in relation to blocking websites was in relation to the Interpol 'worst of' list on 24 June 2011.
Mr Phelan : Yes, we have. Previously, we have used section 313 as part of the mitigation strategies from the joint banking and finance team within the Australian high-tech crime centre. That commenced in about «May» of 2004. Those were traditionally used to block foreign IPs hosting muling, phishing and other malware sites.
Senator LUDLAM: So that is not really so much about knocking content out; that is if there is malicious software that is emanating from a particular server?
Mr Phelan : Yes, that is right.
Senator LUDLAM: Is there anywhere I could find background on the history of the sorts of activities that section of the act has been used for? My inclination was that it had been used in that way. Can we find how many of these notices are issued in an average year since '04, for example?
Mr Phelan : I am not sure if we would have that information. We do not keep records around that generally. Ever since we have aggregated it in the high-tech crime area in relation to child exploitation material, we have got very distinct numbers of how many we have done in that period of time.
Senator LUDLAM: I understand that. I am just trying to get a sense of how else the Federal Police uses these notices because now it appears that ASIC and one other agency—and I am seeking to find out from within this room who that is—are using them. I am just trying to get a constrained idea of how the Federal Police uses them.
Mr Phelan : Section 313 is not limited to blocking websites. It is a requirement that content service providers, ISPs or telecommunications carriers do everything in their power to assist law enforcement and stop offence against the criminal law. It is not only about blocking websites. The Australian Federal Police do use that section for other requirements that we do have that are not related at all to blocking websites—that, as a matter of fact, have nothing to do with websites. They are about carriers assisting the «AFP» in lawful duties under warrant et cetera. To be honest, I do not want to go into that component. It is very sensitive operational material.
Senator LUDLAM: I am not seeking information on that. I am seeking more information on the rather more novel use of that section of that act to take out content which you have just told us you first started doing against the Interpol list a year or so ago.
Mr Phelan : Yes.
Senator LUDLAM: Before that, to your knowledge, had the Federal Police used that section of that act to knock content out or was it being used more for these broader array of activities you are describing now?
Mr Phelan : No. It was mostly used for the blocking of the content. Having said that, in relation to malware and that sorts of things, we have stopped using it for that purpose.
Senator LUDLAM: Why is that?
Mr Phelan : Because it is not an efficient method. We have found that over time it is much more useful and, in fact, far more valuable to get in contact with those who are hosting the material and block it at the source, and get them to just tear down the sites and so on offshore and work with the companies and countries that own the domains. That is a far more useful method than trying to block it from here. When we block here, we block a particular domain. We do not go for the IP address.
Senator LUDLAM: That was where ASIC has gone and tied their own shoelaces together and overblocked about 1,200 sites. As far as you know, in terms of knocking content away, because this did not attract a huge amount of controversy when it was announced, the only time you would use those notices in that way is to block against the Interpol list.
Mr Phelan : Absolutely correct, yes.
Senator LUDLAM: How well do you think that is working? Have you noted any hiccups or hitches in the administration of that scheme?
Mr Phelan : No, the advice we have got from the ISPs is that it has not slowed down their sites at all. We have no complaints from them. For the ones we have sent notices to, they are all at different stages about where they are at in terms of blocking content. Some are helping at the technical stage and others are working through what they need to do. We have had no complaints so far. I «may» also add that we have not had a discernible increase in the number of referrals either. The way it works is this: the sites redirect someone who tries to access those sites to the Interpol site. That is the way the «AFP» works.
Senator LUDLAM: Yes, I am familiar with that. ASIC is using these notices to knock out certain categories of sites and there is an overblocking instance. There is one other agency—I was just told before by the minister for communications—within the Attorney-General's portfolio also using these notices. Could somebody at the table illuminate me as to who that is?
Mr Wilkins : Sorry, we do not comment on national security matters, Senator.
Senator LUDLAM: So it is a national security agency?
Mr Wilkins : We do not comment on those matters.
Senator LUDLAM: So it is a national security agency?
Mr Wilkins : We do not comment on those matters, Senator.
Senator LUDLAM: You are commenting. You just told me it is a national security matter.
Senator Ludwig: No, he said that he was not commenting on it.
Senator LUDLAM: I did not ask whether it was national security. Somebody within the Attorney-General's portfolio, which is significantly broader than national security, is using section 313 notices to knock content off the web.
Mr Wilkins : It is a national security matter. We are not commenting on it, Senator.
Senator LUDLAM: That has been very useful. Thank you, Mr Wilkins. So, back to the «AFP» . ASIC and one other national security agency is using these notices to knock out particular categories of content. I will not comment on this agency, which will not be named for some reason, but as far as ASIC is concerned, this content is unlawful and is therefore being knocked out for that reason. Does the «AFP» consider the use of these notices for other forms of unlawful content, whether it be for copyright infringement, or take a pick of all sorts of material, that these notices would be used to take that content out, and if not, why not?
Mr Phelan : The short answer is no. We do not have plans.
Senator LUDLAM: Why is that? There is content out there that you know to be illegal and you know other agencies are using these notices to compel them to be taken down. Why would you not use them in that way? I am not inviting you to; I am just wanting to know what the rationale is to why you are not.
Mr Phelan : We are trying to do what we can to stop the abhorrent at this stage, obviously the crimes of child exploitation. We are doing everything we possibly can, that is lawfully available to us to do everything in relation to this.
Senator LUDLAM: And this is one of those matters.
Mr Phelan : We obviously cannot prosecute everybody, so this is about trying to stop it at the source so that people do not even have access to the site. I have no doubt that it is labour intensive from our point of view. At this stage we are concentrating our efforts on that particular crime type because we think it is effective. Not only that, I might add that there is a fair bit of rigour that goes around what sites to block.
Senator LUDLAM: I think you will find that is why there has not been a huge amount of controversy over the practice of blocking.
Mr Phelan : I think that is a part of what you are saying. There is a lot of rigour that goes around which sites to block. Blocking a site is not just a routine thing to do. It is a very important step, and something that we do not take lightly, therefore, there is a lot of rigour around it and that is why we pursue it in relation to child exploitation material.
Senator LUDLAM: It is not entirely the question I put to you though. Is there any reason why you are not using it to knock out other categories of sites, as you would appear to be lawfully enabled to do?
Mr Phelan : No particular reason, I suppose. If we wanted to block those sites, and it was within our power, I suppose we could.
Senator LUDLAM: I am telling you it is within your power. It appears, on my reading of the law, to be entirely within your power. You are choosing not to.
Mr Phelan : Well, it is not that we are choosing not to; we are choosing to do it on the other sites, I suppose.
Senator LUDLAM: You are choosing not to do it for other categories of sites. I am not trying to entrap you here; it is just my plain English reading of it.
Mr Phelan : In law enforcement there are many conscious decisions one has to make to do everything, such as search warrants on all sorts of crime types. We cannot do everything to everybody and at this stage we have made a very conscious decision that we are going to use these rather intrusive powers to do this particular thing at this stage.
Senator LUDLAM: Thank you very much. Thank you for your time.
Senator HANSON-YOUNG: Commissioner, my questions follow on from a number of things that we have talked about in the past in relation to detention centres, namely in relation to the report this week on the 7: «30» program. As you would be aware, Sergeant Brendan Thomson made allegations during that program about the evidence that the «AFP» gave to the select committee investigating the detention centre network in Australia. I was a member of that committee, so I am very interested to get to the bottom of this. The claim that Sergeant Thomson puts forward is that evidence given by the «AFP» to the inquiry was misleading in relation to the conditions as the «AFP» saw it within the detention centres and the level of tension and volatility. Do you stand by your statements to the committee?
Mr «Negus» : Yes. Senator, I certainly do on behalf of the «AFP» . There were a number of officers who obviously gave evidence to that committee and with all committees we endeavour to give, in good faith, all the information available to us to support the committee. After the 7.30 Report aired on Monday night, I put out a statement, I think it was around midnight, refuting the allegations that were made by Sergeant Thomson. I have to say after seeing the allegations on the 7.30 Report they are serious, and to make sure that these are properly investigated I have referred that matter to the Australian Commission for Law Enforcement Integrity for them to independently review those allegations and look at it. But I have re-examined the evidence given, I have spoken to Assistant Commissioner Prendergast, who was the person subject of those allegations, and a current investigation will take place in due course. But he has reassured me that he stands by the evidence that was provided. I think there is a range of other details which I might make Deputy Commissioner Drennan to go through from a governance perspective of how these matters were dealt with with Sergeant Thomson. There are workplace dispute issues involving Sergeant Thomson which I do not really want to go into in this forum, but can I say they are complicated and had not yet been resolved and have been ongoing for a couple of years. He is on leave without pay at the moment and the allegations he has made, as I said, I would refute in the strongest way. However, given the seriousness of his allegations, we have referred it to ACLEI for investigation.
Can I say that originally Sergeant Thomson emailed me directly as the commissioner. I was away at ministerial meetings actually and came back two days later. I responded to him immediately myself and said that, whilst I thought he should have gone through his chain of command to report these issues or he should have reported to our professional standards if he thought that anyone's activity had been improper, I was going to seek urgent information in regards to the matters he had raised. I might just pass to Deputy Commissioner Drennan, who could then give you a sequence of events that occurred from there but it involved a number of reviews of the material that was submitted by Mr Thomson at the time. Mr Thomson has, in a subsequent email to me, acknowledged that he was not aware of the broader organisational priorities or other issues that were at play within this. He was specifically talking about his role on Christmas Island during that period of time. But if I can pass to the deputy commissioner, he might give you a bit more information about the process we have gone through in trying to manage this, and to reconcile some of the issues with Sergeant Thomson over the last couple of years.
Mr Drennan : Senator, I think a good starting point is to give you some key dates here which starts to put some of this into context. On 9 November 2010 Sergeant Thomson returned from Christmas Island to Australia. On 24 November 2010 he actually sent the email to the commissioner. It was on 27 November 2010 year that the resources he has referred to—that is, the six operation response group people—were returned from Christmas Island to Australia and it was some four months later on 11 March 2011 when the public order incidents commenced on Christmas Island. I «may» just note that on 27 November, when the six resources were returned to Australia from Christmas Island, there were still 32 «AFP» members on Christmas Island. A part of the strategy in withdrawing those resources was firstly based on the operational decision as to why they would be returned to Australia, and that was based on the intelligence which existed at the time, the conditions on Christmas Island, the operational experience of those people on the island, and the operational experience of those people who were making the decisions, being the executive of the International Deployment Group at the time. So they made that decision to return the resources and it was also on the basis of the strategy which would provide any surge resources which would be required to go to Christmas Island in the event there was a public order incident. When the public order incidents started to occur on 11 March 2011, within 24 hours there were additional resources on the island. Within several days there were approximately 200 «AFP» people on the island to deal with those resources. Having reviewed the use of force on the island, and the way in which the «AFP» responded to it, I can say that having six additional people there at the particular time that those incidents started to occur would have made some difference but not any significant difference at all.
I might also add that the specialist operation response group resources had been on the island for some considerable time. In the lead-up to the decision to redeploy them back to Australia on 27 November, they had not been used for some time. There had been instances within the detention centre of self-harm and some public disorder, but those matters had been resolved by Serco, who were the operators of the centre, or alternatively by the Christmas Island community police, who had responded to assist. The operation response group resources had been, what I would say, 'stood up', but had actually not been deployed to the centre.
To start to put into some context the mood in the centre and some of the things that Sergeant Thomson based his assessment on, yes, there were some isolated instances, but there were not instances or a mood in the centre which had dictated that we should not have redeployed those resources at that time. It was not until some four months later that those public order instances occurred.
If we start to look at the sequence of events concerning Sergeant Thomson, he emailed the commissioner on 24 November. As the commissioner said, he was not in his office at the time, but as soon as he received that email, it was given to a commander—a senior officer in the Australian Federal Police—to conduct an initial review of the information provided. That initial review determined that the issues raised by Sergeant Thomson did not reveal anything of significance that would require any immediate action or change of practices or decisions, but recommended that an independent management review be conducted to more fully consider the issues that were raised. That review commenced on 29 November by a senior «AFP» officer and that review found that some of the claims made by Sergeant Thomson only identified already known existing and emerging issues that had been considered by the IDG management; other claims had no basis or displayed a lack of the requisite corporate knowledge on the issue.
Since that time, there has been, as the commissioner outlined, a sequence of events which revolve around a workplace dispute. In an effort to try to resolve the issues with regard to Sergeant Thomson, we commissioned another senior officer who had no prior knowledge of the issues which had been raised and also had a level of independence—he had not been involved in the international deployment group prior to this time and also had dispute resolution qualifications.
Mr «Negus» : When I received it, I immediately asked for urgent advice about the issues he had raised. They were concerning to me because it was contrary to what I had been told by my senior level staff about what was actually going on. I responded personally to Sergeant Thomson to say that I thought he should have gone through his chain of command to make sure they were aware. However, I had asked for urgent advice on the issues he had raised. I did pass it on to get urgent advice from the line area as to whether there was any credibility to these allegations he was making.
Senator HANSON-YOUNG: To whom did you pass the email and correspondence from Sergeant Thomson?
Senator HANSON-YOUNG: What were your instructions to Commander Osborne?
Mr «Negus» : Essentially, that I wanted to know whether the claims by Sergeant Thomson at the time had any validity, because it was contrary to what I had been told as to the current situation on Christmas Island.
Senator HANSON-YOUNG: Can we go back to the allegations raised by Sergeant Thomson around the meeting that happened and the phrase 'manufacture a situation'? What did that mean?
Mr «Negus» : I do not know and I do not think we will ever know, other than that Assistant Commissioner Prendergast assures me it was probably a very poor choice of words. But what he was endeavouring to do was to reconcile the workplace dispute with Sergeant Thomson. I do recall the television program, and I certainly have not heard the recording because it was covertly done, but I understand it was at least a half-hour meeting. That was one line taken out of a half-hour meeting, which was an attempt to reconcile with Sergeant Thomson about the workplace dispute. I understand that Assistant Commissioner Prendergast was attempting to try and explain that different agencies on the island had different responsibilities, including the «AFP» , Serco, and DIAC more broadly.
Senator HANSON-YOUNG: Having responsibility to respond to something is quite different to having responsibility to manufacture a situation.
Mr «Negus» : I cannot speak for Assistant Commissioner Prendergast. He acknowledges it was a very poor choice of words. But I can assure you, from the AFP's perspective, that we would never do anything which would put anyone in danger or manufacture—to use that word—a situation which could cause the public to be put in danger, whether they be in detention or whether they be people on Christmas Island, or in fact my own staff. As the Deputy Commissioner has explained, there were still 32 people on the island after the six specialist tactical response people were returned, and there were no instances for the next four months where there was a requirement for those people to be redeployed back into that environment. When the riots did happen, in March, we responded very quickly and ended up with almost 200 people on the island to respond in that way. But I can assure you, and I have given this undertaking to the Secretary of DIAC already, that the «AFP» would never—and I repeat, never—do something which would put anyone in harm's way to prove a point or to try and delineate responsibilities. It is not the way we work, and it is not what we stand for as an organisation. So it was a poor choice of words by the assistant commissioner, but he certainly did not have any instruction or authority to do anything to manufacture—as we put it, in its worst interpretation—a situation which we then saw in March.
Senator HANSON-YOUNG: The inquiry that ran was quite extensive. I know your officers sat in front of us numerous times—both on issues that were put on the public record and on those that were discussed in camera. The overwhelming view, I must say as a member on that committee and as a signatory to the report that we handed down, was that there was an understanding that the current conditions within the detention centre were not okay and that tensions were high. When you overcrowd detention centres and you freeze their applications and people do not know what is going on; it all builds to that level of tension. Mr «Negus» , I am not sure how closely you have looked at the evidence that was given to the committee, but would you agree with me that the evidence that was put forward did indicate that the conditions within the detention centre on Christmas Island were tense?
Mr «Negus» : The deputy commissioner has already indicated that the decision to remove the six people —I repeat, six, leaving 32 «AFP» people on the island—was made because the circumstances did not require those people to remain. There was a response capability put in place so that they could be redeployed within 24 hours.
Senator HANSON-YOUNG: Was that a mistake?
Mr «Negus» : Based on the material available to me, no, it was not a mistake. I think we would all like to have 100 people sitting there in case something happens, but we have people deployed all around the world, in places like the Solomon Islands and in Timor at that stage as well. These specialist tactical resources had not been deployed for some time, or had been in very limited deployment mode—they were there on the island training, in readiness—and we had to make a judgement call on whether or not they could be brought back to Australia and redeployed to other locations. If something were to go amiss then we could redeploy very quickly, as we did, to respond to those issues four months after they were removed from that location. So these decisions are not made in a fleeting sense; they are very closely considered and it is a matter of trying to balance the risk with the treatment options available. And the treatment option was to respond quickly, as we did some four months later. Not always do the people on the ground understand some of those broader implications. As a sergeant on the island, Sergeant Thomson's primary responsibility was to try and ensure that he was doing his best to make sure that he was in a position to treat any risks that emerged. He was not aware at that time, and he has acknowledged this in an email back to me, of the broader resource requirements, of the financial constraints or other issues around the deployment of the operations response group. His primary responsibility—and credit to him—was a focus on the island. But that does not mean that his supervisors were in error in saying that there was a greater need somewhere else by putting in place a treatment program about immediate response.
Senator HANSON-YOUNG: That does not directly address my question, though. There were reports, at least those that we know, that came from Sergeant Thomson about his belief of conditions on the island. Were those reports, and the information within those reports, included in the AFP's evidence given to our committee?
Mr «Negus» : I am not sure if they were included in the evidence given to the committee. But certainly the review of the material provided by Sergeant Thomson, that was done by a superintendent, stated that nothing in Sergeant Thomson's material was new, or was not already known, to the IDG management when they made the decision to redeploy the six people back to Australia. There was no new information in there that would have caused them to change their mind on the decision that was actually made.
Mr Drennan : I might add there that the information that Sergeant Thomson provided formed part of the consideration in relation to the decision to bring the people back from Christmas Island to Australia. Albeit that he is saying that he put that information in, it was actually factored into the decision making. It was not as if it was disregarded; it did form part of the considerations. As the commissioner said, it was but one part. No-one is saying that there was not a level of I guess unease in the detention centre. We have said that there were some instances of self-harm and some disorder, but that was certainly manageable from within the resources that Serco had in managing the centre and within the community policing element of Christmas Island. There are two different things here in relation to the level of resource you have there, and what you need to respond to.
Mr «Negus» : One of the major concerns in the email that came to me from Sergeant Thomson was that he believed that an intelligence report that he had completed and uploaded into Promise—which is our case management system—had been removed from the system. He was wrong about that. Certainly the review that was conducted identified that the intelligence report that had been put in by Sergeant Thomson had remained in the Promise system and had been properly accounted for in that context. He claimed that someone had removed that, and he was concerned that there was some foul play at play here. But again the review showed that was not the case; that it had never been removed and it remained part of the process of decision making.
Senator HANSON-YOUNG: It was quite clear during the collection of evidence from the various agencies involved on Christmas Island— «AFP» , Serco, who we also interviewed as the private contractor and the Department of Immigration and Citizenship—that prior to the outbreak of tension on Christmas Island there were no clear protocols for how the agencies all worked together; how you communicate if you do believe there are issues of concern. It is one of the reasons that the inquiry recommended that there needed to be better protocols in communication and agreement between them all. Mr «Negus» , do you accept that that was evidence put forward to the committee, including from people from those various agencies?
Mr «Negus» : I was not at the committee, but clearly what you have said is not inconsistent with what I know to be the case. Yesterday, I heard the secretary of DIAC talk about how matters have been significantly improved. That includes the relationship between the agencies in dealing with these very difficult circumstances through that process, with large numbers of people in detention. I do not disagree with what you have said and I certainly would agree that matters have improved significantly as a result of the committee, and as a result of other actions taken by the agencies.
Senator HANSON-YOUNG: Are you concerned that the same types of conditions are building again to what they were in March 2011?
Mr «Negus» : Obviously the numbers are around the same levels, so we continue to monitor the situation with DIAC and our partner agencies and put in place treatments accordingly. We have 45 people on the island as of today, but we also have response arrangements in place should our intelligence tell us that we need to have more people there to deal with whatever issues «may» be on the horizon.
Senator HANSON-YOUNG: If you have 45 people there at the moment and overcrowding is an issue, the freeze on applications is back in place, how many people did you have on the island in March 2011?
Mr Drennan : There was 32 officers there at that time. I just might add to what the commissioner said in relation to the current arrangements on Christmas Island. There exists now, which did not exist at the time, a far more joined up approach in relation to the intelligence regarding the mood in the centre and any level of unease. That is to the extent that there is a daily operations report that deals with that issue and there is also a weekly intelligence and resources brief that comes personally to me to review, and in that it makes some assessment in relation to the level of unrest or potential unrest within the centres, and that is a joined assessment by Serco, DIAC and the «AFP» . If that assessment were to raise to any significant level that would cause us concern, then we would certainly deploy additional resources there as required. To be able to deploy those additional resources there, we currently have resources in Darwin, Perth and in Canberra that will be deployed to the island if required.
Senator HANSON-YOUNG: So they are different processes and protocols than were in place in 2011?
Mr Drennan : Certainly. As you highlighted a moment ago, there were lessons which were learnt, there were things that were put before the inquiry, the committee, and recommendations that came from that which certainly improved the practices which were being used, and that is only right.
Senator HANSON-YOUNG: Okay, thank you. Could we just go back to a specific issues relating to Sergeant Thomson? On the 7. «30» program's website they show an email that was sent around to all of the operational response group team by professional standards, Superintendent Greg Corrin, saying that anyone who makes contact with Sergeant Thomson has to report it like they would have to report a meeting with a criminal. Was there any disciplinary action taken against the person for sending this email?
Mr Drennan : Yes. There was an email which was sent around to the international deployment group special response group and it actually had nothing to do with Sergeant Thomson at all. It was reminding them of their responsibilities of reporting obligations were in a range of things which «may» fall under our professional standards or code of conduct. The reason for that is solely that these officers work in a range of different locations at a particular time and are not always back in headquarters where this stuff is more readily available, so it was a proactive attempt to ensure that they were aware of their responsibilities. Unfortunately, it was misinterpreted by one of our officers who then onforwarded it and made reference to Sergeant Thomson.
Senator HANSON-YOUNG: So there was an email that made direct reference to Sergeant Thomson?
Mr Drennan : That is what I am saying. The officer who sent that misinterpreted the email which was sent out to all of the specialist response group and then made reference to Sergeant Thomson in that. It has since been explained to him that it was not an email which was sent in regard to Sergeant Thomson and he has withdrawn that. So it was a misunderstanding by him as to what the intent of the original email was.
Senator HANSON-YOUNG: How does somebody misinterpret an email that is about meeting a criminal with Sergeant Thomson?
Mr Drennan : That is certainly a matter for the officer to interpret as to why he came to that conclusion, but he certainly acknowledges now that that was an incorrect conclusion to come to. There was absolutely no relationship between the original email and Sergeant Thomson.
Senator HANSON-YOUNG: What disciplinary action has been taken, if any, against the person who edited the email, as you have suggested, to include Sergeant Thomson as the link to a meeting with the criminal?
Mr Drennan : I did not say he edited it. I said he misinterpreted what the intent of the email was and then sent a subsequent email. He has been spoken to in relation to it.
Senator HANSON-YOUNG: Let us be really clear because I had envisaged that you said that he had forwarded it on and included Sergeant Thomson's name. What email was sent with Sergeant Thomson's name suggesting that any meeting with him would have to be reported as if it were a meeting with a criminal?
Mr Drennan : There was an initial email which was sent to the members of the special response group. That was then on-forwarded by the officer in which he included a reference to Sergeant Thomson. He did not edit the original email; he on-forwarded it. As I said, he mistakenly interpreted that to apply to Sergeant Thomson and that is where he made those references to Sergeant Thomson.
Senator HANSON-YOUNG: Did he say, 'This email is about Sergeant Thomson'?
Mr Drennan : He mentioned Sergeant Thomson, yes.
Senator HANSON-YOUNG: You said he has been spoken to?
Mr Drennan : He has been spoken to. He realises the error that he made. It has been left there. I do not think a misinterpretation of the application of that is something which would require any further discipline than that. It has been dealt with as a management action.
Mr «Negus» : The officer involved has acknowledged he has misinterpreted and done the wrong thing. But I think in his own mind this has been an ongoing workplace dispute with Sergeant Thomson for a couple of years where now there is legal action afoot. The matters have been to Comcare and back. I think they are now going to the Federal Court in relation to this. There has been a FOI request as well in regards to things about Sergeant Thomson.
As a manager within that area I think he would feel that he would need to know if Sergeant Thomson, who still has many friends in the «AFP» , was contacting people trying to elicit information in regards to any material also knowing that the 7.30 was looking to do a story on this in the future. It does not defend what he did because he was in error and he has acknowledged that. From his perspective, he was trying to make sure that he as a manager within the area was at least aware of any contact being made by Sergeant Thomson to his former friends or colleagues within the workplace to try and gather more information in regards to the ongoing workplace dispute.
Senator HANSON-YOUNG: Was the original email in relation to Sergeant Thomson or not?
Mr «Negus» : No it was not. It was a broad based email reminding people of their responsibilities. Where they come into contact with people, we have a thing called a contact incident report. It is not only criminals but people you think you should disclose an association with or a contact with. It is a broad based thing that applies to all of the «AFP» . This was misinterpreted by the officer involved in this area.
Senator HANSON-YOUNG: How often do you have to send these emails to remind your officers that they have to disclose meetings with criminals?
Mr Wood : The professional standards area of the organisation is within my portfolio. We have an ongoing constant campaign around education of values and professional standards. The hub page, the internal intranet page for staff, always has a message of some sort about the values of the organisation, about behaviours, about code of conduct, and we mix that message up. So it is normal for us to be talking to our staff about what we expect of them in professional standards guidelines and requirements.
Senator HANSON-YOUNG: Does it often coincide with requests from the media?
Mr Wood : I just mentioned the intranet home page would have a message of some sort.
Senator HANSON-YOUNG: This was a direct email to your staff to have to report meetings with criminals. One of your officers has interpreted that to be about a specific person and you cannot tell me why?
Mr Wood : I am not sure what the question was related to. There are times when we get information—and this is completely unrelated to this matter—for example, we recently received advice from the Australian Commissioner for Law Enforcement Integrity that there was a particular area he would like to increase our educational on, so we increased the education in that area. That related to conflict of interest arrangements within the organisation. But even if there was not a specific trigger such as information coming from professional standards or from ACLEI or from whole of government, there is the constant education campaign within the organisation. So it is not unusual either for an individual manager or from my portfolio centrally to decide to send a clear message about a particular code of conduct issue at some point in time.
Senator HANSON-YOUNG: But what prompts you to send an email of that sort, especially if that information is already available day in, day out on your website?
Mr Wood : It is good governance for a law enforcement agency to constantly remind its staff of the importance of integrity. That is what we do. And I repeat: sometimes ACLEI will trigger it, because they will say there is something they would like us to further emphasise. Sometimes, as part of our own complaint mechanisms, where we are receiving complaints about the behaviour of staff, whether it be about the use of force or any other activity across the organisation, we will send out a message. It «may» be that the union, the AFPA, raise with us a particular issue where they believe that we should communicate with the rest of the organisation about a particular theme that they are concerned about. Even if we have none of those triggers, we still have a constant process of education for our workforce around the importance of sustaining integrity as a core value of the organisation.
Senator HANSON-YOUNG: Do you send regular emails reminding individual officers to desist from bullying and humiliating others?
Mr Wood : That has been part of the education campaign, yes.
Senator HANSON-YOUNG: How often would you send those emails?
Mr Wood : My recollection is that all the SES received an email from the national manager of human resources in this space about three weeks ago, maybe four weeks ago—as an example; it would not have been the only incident.
Senator HANSON-YOUNG: What is the «AFP» doing—and I am not sure, Mr Wood, whether this is in your portfolio; Mr «Negus» , you could probably inform me—to ensure that, if someone believes there is something important to report, something that has not gone right, a concern about wrongdoing, there is a culture of transparency that encourages them to report those things?
Mr «Negus» : Senator, I think it is within Mr Wood's portfolio. But we pride ourselves on being at or very near best practice in integrity. The Commissioner for Law Enforcement Integrity has mentioned to me many times that he refers to the «AFP» as a model in this regard, in terms of the range of activities and processes we have in place for people to report inappropriate behaviour. In fact, one of the statistics I read the other day was, I think, that 72 per cent of the complaints currently on the books have come from inside the organisation against fellow members because they are concerned about a particular issue. These can range from very minor to more major issues. But that is a very healthy sign that internally, within the organisation, people are looking at what their colleagues are doing and are not frightened to come forward and raise concerns. If you think about it, a law enforcement agency where more than half of the complaints or concerns raised with our Professional Standards area come from inside is very healthy metric for us.
We have obligations, of course, under the complaints act to make sure that we report matters of inappropriate behaviour and those sorts of things. It is incumbent on all of us, including me as commissioner and everyone across the organisation, sworn or unsworn, to report inappropriate behaviour. If they do not, they themselves can be disciplined for not reporting it. It is a mandatory reporting regime.
On top of that, we have a thing called the Confidant Network, which has been in place now for well over a decade, where we have around 200 listed confidants on our computer system. You can ring and seek anonymous advice from individuals on whether you can go forward and whether they can provide support. It provides a mechanism for staff to seek advice about whether a particular behaviour could constitute misconduct or something else. If nothing else, the confidant can explain it to them and can go forward on their behalf—so they can remain anonymous—and make a report. So we get intelligence, if you like, about trends and issues within the workplace.
We have a range of workplace support mechanisms as well, around welfare and assistance, which again constantly move through the workplace to try and give avenues for people to raise concerns or complaints. We probably have 15 minutes before lunch and, as I said, I could probably talk till four o'clock this afternoon, because I have five pages of—
Mr «Negus» : But I have five pages—and I am happy to table it, if you like—of the AFP's integrity framework, which we worked very hard on. To suggest that we have done anything outside of that and done anything other than try to reconcile with Mr Thomson about his concerns, to try and explain to Mr Thomson about his concerns—in fact, sometime after he was returned to Australia, he was redeployed to the Solomon Islands. The person who was charged with actually evaluating this matter travelled to the Solomon Islands to see Sergeant Thomson and sit down with him and explain the essence of his review, what was happening, and seek further advice from him. So they were not returning him from that workplace but going to see him in the Solomon Islands to sit down with him and work through these issues. We have been unable to reconcile this, unfortunately. We remain committed to doing that with him, and hopefully he can find a way to do that. But the covert recording of senior officers, the playing of a three-second grab out of a «30» -second conversation and then making a broad range of allegations—which we have properly referred to ACLEI to give independence to—is not the way to resolve these issues.
Mr Wood : Not that I recall. But I am happy to correct the record for you if we do come across a case when we return to the office.
Senator HANSON-YOUNG: Could you take that on notice.
Mr Wood : Yes.
Mr Colvin : I believe we «may» have answered this previously, I think the answer is that, to the best of our knowledge, no. I think we checked after the last «estimates» hearing. It is not routine for our officers to engage themselves in a liaison officer capacity in regular interviews.
Mr «Negus» : Can I just add for the record that our officers who work offshore do not have any powers in the country; they are a guest of the host nation. Traditionally they are there to work with those police agencies to exchange intelligence, to help them develop capability and to do the sorts of things that they would do in a support way rather than being somebody who might conduct interviews, take statements or conduct something in more of a law enforcement or investigative sense.
Senator RHIANNON: Mr Colvin, if you need to take this question on notice, by all means do so. I know that I have asked it before, but I continue to receive information regarding concerns about this possibility. Has it occurred since we were last together that the «AFP» official in «Sri» «Lanka» has been present when people intercepted by the «Sri» Lankan authorities are being questioned?
Mr Colvin : I am very confident that the answer is no. However, I will take that on notice and will provide you with an answer in the course.
Senator RHIANNON: Thank you. If they have been present in those meetings, could you explain the purpose of that in your answer.
Mr Colvin : As Commissioner «Negus» has explained, the purpose would be to exchange intelligence and to work with our counterparts on whatever particular transnational crime we might be investigating at the time. You have referred to people-smuggling, but our officer in «Sri» «Lanka» works on a range of transnational crimes.
Senator RHIANNON: Has the Australian Federal Police played any role in the interviews of interceptees at the fourth-floor facilities of the Criminal Investigation Department of the Terrorist Investigation Division in Colombo? Have they just been present in an observer role or have they had any involvement?
Mr Colvin : Yes, we do.
Mr Colvin : I do not have the numbers. What I do have is the types of training that we have provided.
Senator RHIANNON: Could you take it on notice to provide the numbers and provide details about the types of training.
Mr Colvin : I can give you the types of training now and I will take it on notice to provide you with the numbers. The training courses have included management of investigations; development for individual police officer programs; criminal intelligence analyst training; money laundering investigations training; and train the trainer. Of course, it is our desire that these agencies build up their own capacity and do not need us to do this training with them. We have also assisted with 20 computer based training learning modules on police best practice. We have done that in partnership with the United Nations Office of Drugs and Crime.
Mr «Negus» : Can I just add—and this goes back to questions we have previously at «estimates» —that the issue of human rights remains central to all of the training we deliver. Human rights to the Australian standard and to our international obligations, and any training we would deliver during that period of time in the areas you have talked about, certainly would contain elements consistent with Australia's stand on human rights.
Senator RHIANNON: You use the word 'elements', which could be either minimal or considerable. Could you take it on notice to provide details of what training that is and how large a component of the training it is.
Mr Colvin : No, we do not.
Mr Colvin : No, we do not.
Senator RHIANNON: For either of those, have you ever done so?
Mr Colvin : I do not believe so. I will correct the record if there has been. I might add that that it would only be in an instance where we are conducting training with the «Sri» Lankan Police Service. It «may» be that an officer from the «Sri» Lankan Navy investigative component is in that training but that would be very rare and unusual because our liaison and training is with the police.
Senator RHIANNON: So you will take it on notice to find out whether the military have been present when you have been training police?
Mr Colvin : Yes, we will.
Mr Colvin : I have records for 2012-13, the current financial year. We have spent approximately $540,000, of which about half is ODA funding and half is our departmental funding that we have been appropriated under various new policy initiatives.
Senator RHIANNON: If you do not have the figures, could you take it on notice to tell me how much money has been spent on training since the end of the civil war in 2009.
Mr Colvin : I will have to take that on notice, yes.
Mr Colvin : All training that we do with any foreign law enforcement agency is arrived at in consultation with the agency. So we would have spoken to the «Sri» Lankan Police Service and discussed their training and capability needs. We would have looked at what we have the expertise to deliver and what we believe is in Australia's interest to deliver as well. That is how the training is arrived at.
Senator RHIANNON: That does sound like the «AFP» has offered the training. I am not denying that they have accepted it, but it sounds like you have offered it. I am just trying to get it clear that I have interpreted your words in the right way.
Mr Colvin : Yes. We offer training but it is on the basis of our discussion and negotiating with them. For instance, some of the training I mentioned is under the banner of the UNODC, so that would be discussions that the United Nations are having with the «Sri» Lankan government about training needs as well.
Senator RHIANNON: So we have the «AFP» training «Sri» Lankan police. Is there somebody who oversees that from the «Sri» Lankan authorities? Is it just police to police? I am just trying to understand the process of how this works.
Mr Colvin : It would nearly always be police to police. Depending on the type of training, it «may» be with a selected area within the Police Force. For instance, I mentioned money laundering training, and that would be with the part of the Police Service that is involved in money laundering. As a general rule, we would also be working with their own training arm of the Police Service to make sure what we were doing was consistent with what they needed.
Mr «Negus» : In all of these types of training the Australian national interest is paramount. This is about supporting our regional neighbours and partners in law enforcement to 'target harden' the region against money laundering, corruption, people-smuggling and those sorts of things. This is all done with a view to making sure that the capability of the nation in question is built to support Australia's interests of preventing or solving crime here in this country. We deliver the third largest amount of aid behind AusAID and DIAC. But this is not an aid program. This is something where we have a vested interest in building capability so that we can work strongly with our partners to prevent crime across the region. As Mr Colvin said, train the trainer programs, where we leave a legacy of capability for them to conduct appropriate investigations with the right human rights dimensions and the right prosecution outcomes, are left in the country well after we have gone. Most of these programs are three or four years in duration.
Senator RHIANNON: You have said it is to prevent crime across the region and it is not an aid program. But earlier Mr Colvin said that $540,000 is ODA eligible.
Mr «Negus» : That is right. Certainly some of it is funded through the aid program, but it is not specifically aid for aid's sake. What I am saying is that it is aid with a law enforcement perspective attached to it.
Senator RHIANNON: But you would surely be aware that the OECD guidelines require that ODA eligible funding is for poverty alleviation. It sounds like there is a contradiction here.
Mr «Negus» : No, there is not. It clearly meets the ODA guidelines, the eligibility criteria around training and a range of other things, which I am sure you are aware of. But certainly AusAID are very careful to ensure that whatever we do that is funded through the aid program—all I am saying is that very clearly this has an impact upon Australia and on regional law enforcement. The capability that we leave behind helps those countries to progress to the next level of capability and sophistication as far as their own investigations go.
Mr Colvin : Senator, I mentioned $540,000 and you just said that that was all ODA eligible. What I actually said was that $280,000, or about half of the total was ODA eligible.
Senator RHIANNON: Thank you for the correction. Is the «AFP» aware of the allegations made against the «Sri» Lankan police of the widespread use of torture and rape in detention? This has come up in different reports and Human Rights Watch has covered recently.
Mr Colvin : There have been numerous reports in the media and by Human Rights Watch. Of course, the «AFP» is conscious of those. All of our officers who go overseas are very clear on the expectations we have of them and the standards we expect them to hold themselves to. I am not sure if I have put this on the record before, but all our officers operate under the «AFP» guidelines on offshore situations involving potential torture or cruel, inhumane or degrading treatment or punishment. It is a very serious issue that we take seriously. If officers are party to by accident—it would not be by design—or aware of a matter involving Australians where there «may» have been cruel, inhumane or degrading treatment, there are protocols on what they need to do, and that is to report it to DFAT and to «AFP» senior management.
Senator RHIANNON: Before we get to the point where your people are caught up in that, there are situations, «Sri» «Lanka» being one of them—and you would have more detail than we would—of these allegations. So is there a point where you make an assessment that this is too traumatic for people to become involved in because they could become associated with these incidents of torture, rape et cetera? Do you consider it in that context and, if you have, what was your decision with regard to «Sri» «Lanka» ? Did you make a call that it was okay to do it?
Senator RHIANNON: So you have made a judgement that you can do it?
Mr Colvin : Yes. But I say that knowing that the officer involved has to be make a judgement each and every day, with every situation that he is involved in, that complies with the guidelines and the values and expectations of the «AFP» and the role that he has been given by the Commissioner. It is very difficult for us here in Canberra to make a judgement on what he has to do each and every day, but we have made a judgement that it is important that he continue to work with the «Sri» Lankan Police Service.
Senator RHIANNON: Mr «Negus» spoke earlier about human rights training, which I understand is a component of the training that you undertake. Has the «AFP» ever raised the need for minimum standards of human rights such as protection from torture for persons detained as a result of joint anti people-smuggling initiatives? I am trying to get a sense of this. It is one thing to have it in the training, but it is another thing for your people to take a proactive position with the «Sri» Lankan authorities so that they start changing their practices.
Mr Colvin : The «AFP» has a strong presence across South-East Asia and the issues you are talking about are not just confined to «Sri» «Lanka» . This is a real issue for our officers each and every day. I have no doubt that the agencies we work with know the standards of the «AFP» and what the expectations of the «AFP» are. There are whole-of-government forums in relation to discussion of what training will or will not be provided to «Sri» «Lanka» . It is difficult for me to give you a very specific answer about when it is going to be—
Senator RHIANNON: Could you take it on notice to give us a specific example of where the «AFP» has interacted with your counterparts in «Sri» «Lanka» to recommend changes to address these ongoing allegations about torture and rape.
Mr Colvin : That will be part of our answer to you in relation to the training because that is implicit any training that we have delivered that has a human rights nature. I will also see if there have been any particular instances where we have raised it as a specific issue.
Mr «Negus» : It is important to understand that the «AFP» does not work as a one-off independent agent within the country. They are part of the Australian mission there and they would work with DFAT. There would be a high commissioner or an ambassador with whom they would be in regular contact and briefings with. So any concerns, as the Deputy Commissioner has mentioned, would certainly be reported immediately to both senior management here in Canberra and also to DFAT, and we would make representations appropriately through DFAT to the countries involved. These individuals do not walk around as a free agent within «Sri» «Lanka» . They are part of the Australian mission and do work on behalf of Australia to Australian standards.
Senator RHIANNON: So they are working to Australian standards as a part of the mission, and we know from previous evidence that there is interaction with the «Sri» Lankan authorities around people attempting to leave as asylum seekers. Has the «AFP» taken action to protect the human rights of the people intercepted by the «Sri» Lankan authorities, considering that some of these people are fearful that they could suffer torture or something quite horrible?
Mr «Negus» : That is not really a question that the «AFP» can answer. This is a matter for DFAT and representatives within the country. All I can say is that our officers perform to extremely high standards and if they were to see anything that was considered inappropriate it would be reported accordingly and proper representations would be made.
Proceedings suspended from 12:32 to 13:36
Mr Colvin : We took the opportunity over the lunch break to get some answers to Senator Rhiannon's questions. In relation to whether we have been involved in the interview, been an observer or been present during the interview of any suspects or witnesses, I can assure you that since opening our post in «Sri» «Lanka» in 2009 we have not been involved in any interviews as a participant or an observer. That is of witnesses and/or of suspects.
There is one matter that you «may» be aware of, and I think we put some detail on the record previously, around an allegation from a returned asylum seeker in August 2010 of mistreatment at the hands of «Sri» Lankan officials and that an «AFP» officer was present at that time. We can categorically confirm for the record that the «AFP» officer was present in the building on that day, most likely the same building you referred to. The officer was attending to other duties unrelated to the interview that was taking place and at no stage did the «AFP» officer witness any mistreatment by «Sri» Lankan officials of any person held in custody. I think we put quite a bit of detail on the record at the time about that matter, which was in the media, but, again, we have not been involved, nor would I expect that we ever would be, in the interview as an observer or participant of witnesses or suspects.
Senator RHIANNON: Does ODA cover all of your operations? Is everything ODA eligible?
Mr «Negus» : They already have. We originally had 28 people there; we are now down to 13. We have ceased all operations in Uruzgan Province and in Kandahar and we now have 13 people stationed in Kabul. They are holding strategic adviser roles within the ministry for police accountability and a number of other senior roles within that environment.
Senator RHIANNON: What is the budget now for your Afghan operations, please?
Mr Drennan : If I «may» , regarding your earlier question, almost all of the funding for Afghanistan is ODA eligible. There is a small component which is not. The current ODA budget for Afghanistan is $17.7 million and $5 million is non-ODA.
Senator RHIANNON: That is $5 million on top of the $17 million, obviously.
Mr Drennan : Yes, it is.
Senator RHIANNON: That is the current budget after you have withdrawn back to Kabul?
Mr Drennan : That is right. That is for the 13 members we currently have in Kabul.
Senator RHIANNON: What was it for the 28 people when you were in Uruzgan?
Mr Drennan : I would have to take that on notice.
Mr «Negus» : I think the savings measure which would have been announced was around $10 million. So the reduction of 15, from 28 down to 13, was a difference of around $10 million—from memory. I think the total budget would have been what we have just given you plus about $10 million.
Mr «Negus» : The Defence components are winding up, but the «AFP» and the diplomatic efforts, as well as a number of other agencies, are still there. The funding was to be reconsidered at the end of this financial year.
Senator RHIANNON: Was that always the plan or has the plan been revised?
Senator RHIANNON: The ODA component, as I remember, was fairly large. Can you remind me what it is, please?
Mr Drennan : For the RAMSI program, the ODA component for 2012-13 is $78.3 million. There is a non-ODA component of $26.9 million.
Senator RHIANNON: That seems to be up from the previous financial year. It seems to be an increase. Is that the case? I am just trying to get a sense of it. It seems as though the budget is increasing, so therefore I am assuming your activities are increasing. I am just trying to get a sense of what is happening with that aspect of RAMSI.
Mr Drennan : The activities are transitioning. There is a program in place which is transitioning more and more from providing in-line policing in support of the Royal Solomon Islands Police Force to a program focusing more on capacity building, where they do the in-line policing role and we support them in a range of areas. We will see if we can check on the actual budget line. There was a significant component over the last couple of years—we have been building police housing, which is part of the program. We have also been refurbishing and building police stations. It «may» well be that some differences are in the capital components as opposed to the operational components.
Senator RHIANNON: I recollect that you nominated—I think it was in questions on notice—that you have 109 personnel there. What is it now, please?
Senator RHIANNON: It sounds as though the program is ongoing at a similar level. There are a lot of police officers and it is fairly active. It is not winding back—is that what we assume?
Mr Drennan : That is right. It is not winding back; it is transitioning to take on a different flavour. Over the next four years, there will be a reduction in the numbers there—but that is consistent with the fact that, as the capability of the Royal Solomon Islands Police develops, there will be less of a requirement for us to fill particular roles.
Senator RHIANNON: What is the draw-down you are expecting over the next four years?
Mr Drennan : Again, I do not have those precise numbers here.
Mr Grant : On page 146 of the portfolio budget statement, the dollar draw-down is reflected—not the actual staffing levels. For example, for «2013» -14, the budget is $83.04 million, dropping to $82.5 million in 2014-15, to $74.7 million in 2015-16 and to $67.9 million in 2016-17.
Senator RHIANNON: That is still a considerable amount of money for the Solomons. I got the impression from what you said, Mr Drennan, that there is a draw-down, but that does not sound as if it is going to be very large.
Mr Drennan : It is not a significant drawdown. It is in the range of probably 20 to «30» «AFP» . As I said, I do not have the precise numbers. There is a level of flexibility around that depending on the rate of development and take up by the Royal Solomon Islands Police in some of the different areas. But the overall plan is to draw the numbers down in that transition phase as the Royal Solomon Islands Police are able to increase their own capacity and take on more and more roles in their own right.
Mr «Negus» : Just to add to that, sometimes you need the same number of people in country but they will be performing different roles. That is what the deputy commissioner is talking about. For instance, at the end of the day in Timor we were performing very much capacity building roles rather than policing roles in line. That is what we are transitioning to. We are stepping away from being on the frontline—attending demonstrations and doing policing work with the locals—to building up their capability and advising them on how they can do it themselves in a better way. That is where we are heading. But there is still four years of funding there to make sure that this is done properly. That is where we are heading.
Mr Drennan : I can certainly break it down in regards to the international deployment group missions that we have. These are all 2012-13 figures. They are «estimates» , but they are very close «estimates» because it is not realised until we get to the end of the year. In any case, as I said before, for Afghanistan it is $17.7 million. For the Pacific police development program in Nauru there is $1.4 million. For the Pacific police development program PNG there is $9.6 million. For Samoa, there is $2 million. For Tonga, there is $1.8 million. There is a regional program that covers a lot of the more minor states through the South Pacific and there is $3.5 million for that. For RAMSI, there is $78.3 million. For Timor Leste there is $27.2 million. For the United Nations mission in South Sudan there is $1.3 million. For the United Nations mission in Timor Leste—and this is for the part year—there was $3.4 million. Therefore, there is a total of $146.2 million.
Mr Wood : To add to that, in that same financial year, 2012-13, there was a further $10 million in areas that are not part of the international deployment group. That $10 million was in areas such as capacity building in the forensics area, some work in the police Pacific development program, the transnational crime unit, people smuggling and in Pakistan.
Senator RHIANNON: Thank you for that. With the international deployment group, in 2012-13 where any of these personnel stationed in Australia?
Mr Drennan : The people who are involved in the regional program are based in Australia. But these are for the activities that are delivered in country.
Senator RHIANNON: How many of your international deployment group who are covered by what is classified as ODA are stationed in Australia?
Mr Drennan : The people are not classified as ODA.
Senator RHIANNON: Sorry. But—
Mr Drennan : The way that we do it is that all of the staff who are employed in the international deployment group are not funded in their base salaries by ODA. When they go to a mission, the mission cost and the activities in the mission are what is funded by ODA.
Senator RHIANNON: To phrase it another way, are any of the costs of your personnel in the international deployment group who are in Australia defined as ODA eligible?
Mr Drennan : Not those who are based in Australia. But there are—and this «may» answer your question—20 people who are in the regional Pacific police development program, which covers the minor or smaller states within the South Pacific, who travel to those various states and deliver programs there. Those activities that they perform when they are in country and the costs associated with them performing those in country would come under ODA. So there are 20 people who are primarily based in Australia who we fund through our appropriation but who when they are offshore doing activities there that are ODA eligible are funded by ODA.
Senator RHIANNON: When they are offshore.
Mr Drennan : Yes.
Senator RHIANNON: Thank you. What are the administrative costs of the ODA program?
Mr Drennan : I am not too sure what you mean.
Senator RHIANNON: There is an ongoing discussion in many of the estimate hearings about ODA and what is ODA eligible. I am continually trying to understand how it is defined and how it works. One of my questions was: with programs that are deemed to be ODA eligible or can be defined as ODA, what administrative costs are covered or defined as ODA eligible?
Mr Drennan : Another way to explain that would be that all the administration and the resourcing required to support those missions offshore that is conducted here in Australia is not ODA. We are quite specific in regards to where the ODA funding is applied and that is, expect for those 20 people who are onshore but doing the work offshore, that the rest of it relates to the activities and the programs of those people while they are offshore in a mission doing duties and performing functions that are ODA. The actual back office work to support that, which is done back here in Australia, does not fall within ODA.
Senator RHIANNON: So the personnel who are stationed in Australia have their costs and wages classified in different ways, depending on where they are. Is that how we would define it?
Mr Drennan : No. All of those who are here in Australia doing work here in Australia do not fall under ODA. That falls under our normal appropriations.
Senator RHIANNON: That is what I mean. There are two components to their wages and the costs that they incur in their work.
Mr Drennan : There is a mission component. Within the international deployment group there are 680 people. There are 116 of those who are here in Australia who do the general support for missions. That is not ODA eligible. There are 426 people who make up the basis of the people who can be deployed. But at any particular time there are 188 of them deployed offshore in non UN missions and 25 in UN missions. Out of the 426, 213 would be deployed at any particular time offshore in missions that attract ODA funding.
Senator RHIANNON: The government has a National Action Plan on Women, Peace and Security. It was launched in 2012. It assigns responsibility to a range of government departments for promotion of these issues. It is something that has flowed down from the UN. The government was slow in making it happen—it took a decade. But I understood from reading about this that the «AFP» is one of the agencies involved in this. That is what I wanted to try and understand: your involvement with this plan.
Mr Drennan : To my knowledge, we do not have a specific person. But we certainly support and contribute to that plan in general, particularly through our UN missions and non UN missions, where we are actively involved in developing women in policing, which is in accordance with that plan. We have some quite specific programs in which our people are involved in achieving the objectives of that plan.
Mr Drennan : In Afghanistan, there have been training programs directed towards women.
Senator RHIANNON: Do you mean training Afghani women police officers?
Mr Drennan : Yes. The other countries—
Senator RHIANNON: Any other countries apart from Afghanistan? I just named four that—
Mr Drennan : In just about all the countries where we are doing capacity development work there is a focus on programs for women. Particularly in the Solomon Islands, we have done quite a few programs that support the development of women in policing.
Senator RHIANNON: Apart from Afghanistan and the Solomon Islands, any other countries?
Mr Drennan : Pretty much right through the Pacific. In all of the Pacific police development programs there are specific programs for women. It is a particular focus for us. Even in PNG we have done some specific programs. In Timor Leste we have done specific programs beyond women in policing but also catering for domestic violence and victims of domestic violence. Without trying to get specific for every particular country, it is a general theme of focus for us in all of our capacity development work in line with the objectives from the UN. We also have two senior officers from the IDG, one who is the assistant commissioner in charge, and also one former commander who was in charge of our deployment to Timor Leste who are actively involved in that program. As I recall, they presented at a particular conference on that program.
Senator RHIANNON: Thank you for that response. Could you take on notice to supply more details. I appreciate that it is focus. But if you could provide details on the numbers so that we can compare that to the males who you are training and interacting with, that would be good. I would like to know how many women are you interacting with and training. If you could provide some more details on both the content and the outcome of these programs, that would be good.
Mr «Negus» : We are happy to do that. But we need to acknowledge upfront that we are starting from a pretty low base here in many of these countries. Women in policing roles is at the starting point. We are doing what we can to develop those people. What I was going to add was that we also second people into the «AFP» , particularly the international deployment group. Women come from Pacific countries and work for three or six months here in Australia and learn the skills so that they can apply them in their own countries. We are happy to provide all those details. But I want to warn you that it is starting from a low base and you would be—
Senator RHIANNON: Very much so. That is why it is important to get it down—so that we can see how it develops. If you can give the quantitative figures so that we can make the comparison that would be good.
Senator RHIANNON: Is there a government coordination point to manage interdepartmental coordination with civil society efforts relating to the implementation of this plan?
Mr Drennan : To give you a precise answer, I would need to take that on notice. I suspect that it is through the Department of Foreign Affairs and Trade. They take on a coordination role in relation to the development of any of those programs that are of an international nature.
Senator RHIANNON: I was hoping that we could get an answer here, because this one is hard to pin down. Do you have a liaison officer that you engage with so that there is some cross-consultation between departments?
Mr Drennan : As I said, we are heavily engaged with the Department of Foreign Affairs and Trade in relation to all of our activities overseas. Likewise, we are heavily engaged and have a liaison officer with AusAID, which picks up responsibility there as well. We also have a liaison officer with the civil military centre, which deals with a whole range of peacekeeping activities on both the civilian and military sides. We have a liaison officer attached to the United Nations in New York. We are involved in a whole different range of forums and groups that pick up various parts of these responsibilities. Whether or not there is a specific person and a specific interdepartmental committee on this I do not know. But I can certainly take that on notice for you to try and assist you as to where you «may» best direct that question.
Senator RHIANNON: Thank you. Within that, are you reporting regularly to someone and are those reports made public?
Mr Drennan : I will need to take that on notice. If there is a requirement for us to report our activities, certainly with AusAID in anything that we do with ODA funding there are fairly comprehensive reporting requirements around that, which we do. In fact, AusAID have provided the feedback to us that we are one of the more comprehensive reporters there and are able to articulate the programs we have to a very high level. But again, to get a specific answer for you I will just need to come back to you.
Senator RHIANNON: Okay, thank you.
CHAIR: Senator Furner has got some questions for you.
Senator FURNER: I might just start with a couple of the task forces, firstly with Polaris and Jericho. I understand the expansion of the Polaris task force from Sydney to Melbourne and Brisbane—
Senator FURNER: What was the need for expansion to those two capitals?
Mr «Negus» : Clearly the Polaris task force was something that we did as a pilot, really, to engage a range of agencies who work in that port environment and to look at the level of criminality. Certainly working with partners like the Australian Crime Commission, the New South Wales police, the New South Wales Crime Commission and Customs, what we have seen in the last couple of years there has been quite disturbing. I think the results of that have been reported in the press. We have made a significant number of arrests and seized a lot of narcotics and illegal tobacco—100-plus tonnes of tobacco. What we saw was that really those circumstances were not unique to Sydney and the port environment in Brisbane and Melbourne was also worthy of attention. So, as the pilot proved what we thought was the case, we then expanded into Melbourne, and into Queensland at the beginning of next year.
Senator FURNER: I understand there was a bust in a location where there was some furniture with false compartments that contained heroin. Which port was that from?
Mr «Negus» : I might pass to Deputy Commissioner of Operations, Andrew Colvin, who will have that. The Polaris task force has made a series of arrests and seizures. This morning Mr Lawler from the Crime Commission mentioned the 11-tonne seizure of precursor chemicals. That was the Polaris task force who seized that—one single seizure of 11 tonnes of acid, which was used as a precursor for methamphetamine. I will hand over to the deputy.
Mr Colvin : Senator, I believe you are probably referring to the November last year seizure of 58kg of heroin, which was Operation Polblue. That was a seizure in furniture in Brisbane.
Senator FURNER: What are some of the other examples since July 2010 in terms of number of arrests and charges?
Mr Colvin : For the Polaris task force?
Senator FURNER: Yes.
Mr Colvin : Since July 2010 the Polaris task force has had outstanding results, as the commissioner has said. It is a multijurisdictional task force but, in essence: 39 arrests, which have resulted in 190 charges—that does include two serving Customs officers as well, which has received a considerable amount of media; the seizure of over 12 tonnes of illicit substances and precursor materials; and I think you heard earlier today from the Australian Crime Commission about one very large seizure of 11 tonnes of precursor material. Since that time, there has been the seizure of 119 tonnes of illicit tobacco and 92 million cigarettes—which, for the committee's interest has prevented the evasion of approximately $77 million in tax revenue—and the seizure of over $1 million in cash and 11 firearms. So it has been a very successful task force and it continues to be successful.
Senator FURNER: Okay. Operation Jericho, or Taskforce Jericho: that is a new task force that is coming online later on in the year. What are the objectives behind that particular one?
Mr Colvin : The objectives are very similar to both the Polaris task force and also the Operation Trident task force, which is in Melbourne. Trident is based on the waterfront vulnerabilities as well, which is what the Polaris task force is targeting. Trident started in Melbourne in August. As the commissioner has said, Taskforce Jericho will commence mid-calendar year, at the start of the next financial year. The objectives are very much the same: it is to understand the waterfront environment, the port environment and to identify and prosecute those people who are looking to exploit the vulnerabilities in those environments.
Mr «Negus» : I could add to that. It is important because this was a fundamental shift in AFP's thinking over the last couple of years as a result of these task forces. The vulnerabilities that the deputy commissioner mentioned have changed the way we look at organised crime. This is not necessarily about targeting a particular person or a particular group but looking to close vulnerabilities or gateways into this country for the trans-shipment of illicit substances, whether they be firearms or narcotics. It has been extremely successful in that context. We have done a vulnerabilities assessment. People who have been arrested have walked us through and shown us how narcotics are being shipped into this country. That means that we can close down all the doors, or do our very best to do so, rather than just arresting one person when there are many more to follow as couriers or other things. This is about fixing the problem rather than the root causes. Taskforce Polaris particularly, with the other two coming online, has given us fantastic insights into the way people are committing crimes in the border environment. Again, we are working with Customs and making sure processes, procedures and technology can all be used to harden the environment in Australia and protect it against organised criminals bringing illicit substances into the country.
Senator FURNER: What sort of funding has been contributed to Taskforce Jericho?
Senator FURNER: I understood there was somewhere around $5.6 million directed to Jericho.
Senator FURNER: With regard to the COAG meeting in April, as I understand it, the states did not agree to the Commonwealth government's calls for national unexplained wealth laws. Would you explain to the committee what that would mean with respect to operations of the current system and what the benefits of a national approach would have been?
Mr Colvin : I believe we have put on the record on a number of occasions the challenges associated with the unexplained wealth legislation as it stands. As we have said before, we have current investigations where we are seeking to test the legislation to the full extent possible. At this stage, we have not been in a position to take any of those prosecutions under unexplained wealth legislation forward. There has been ongoing discussion between states and territories, and certainly a lot of it has been in the media as well, about a referral of powers. Effectively, regarding unexplained wealth legislation at the Commonwealth level, there are constitutional limits to the way that legislation can work. Limitations are effectively around our need to establish that the wealth, albeit unexplained, has been derived from a Commonwealth offence. With most of our investigations into organised crime, it is very difficult for us to disaggregate between Commonwealth and state or territory based defences that might be going towards accumulating a criminal's wealth. That is the nexus of the issue that is still ongoing. The department might have more information they want to put on the record about that, but from our perspective we have been unsuccessful in bringing any matters under that legislation to prosecution at this stage.
Senator FURNER: That is manner of your modus operandi, isn't it: liaising with states and branches to make sure that you have that dialogue and communication about solving crime?
Mr Colvin : Absolutely. As the commissioner has said on a number of occasions, there is almost nothing that we do that we do alone. In terms of our serious and organised crime work, the vast majority is done with either international partners or state partners. What we find is that organised criminals rarely confine themselves to one criminal endeavour. They rarely confine themselves to one commodity or one type of crime. It is irrelevant to them as to whether it is a Commonwealth crime or a state based crime. As I said, it is difficult for us to disaggregate sometimes what type of crimes they are committing.
Senator FURNER: That is correct.
Mr Phelan : Operation Conqueror began in January this year. The «AFP» identified a number of persons using a peer-to-peer file-sharing network to share images depicting children, including young infants who were being sexually abused. We had a concentrated activity over a period of weeks that ended on 15 March «2013» , and to date there have been 25 arrests from that particular endeavour, and «30» search warrants have been executed. The investigations are ongoing, and we expect to have some more arrests.
Senator FURNER: Without going into too much detail, how do you ascertain those particular engagements with the peer-to-peer network? Is it through mobile phones, laptops, hard drives?
Mr Phelan : A lot if it is through the cooperation that we have with overseas jurisdictions, and obviously our own technical capabilities. Once we have the information we then have the ability to either monitor those networks or indeed get the information from overseas and do our further inquiries using access to non-content data et cetera to build up profiles—enough information for search warrants and any other surveillance activity that we want, both electronic and physical—and then go in with some search warrants. The charges will depend largely on what we find in those places.
Senator FURNER: So, Operation Conqueror is just another operation in terms of a global issue of child exploitation?
Mr Phelan : Unfortunately yes. Conqueror is just one of the operations we have. Even this financial year to date we have arrested 67 offenders, and it is continuing to escalate. Year on year it has been 72 people in 2010, with 158 charges; 84 people in 2011, with 205 charges; and 93 people in 2012, with 312 charges—and it continues at a rate that is ever increasing. And it is right across all demographics. The information that is coming from overseas and domestically is not slowing down.
Mr «Negus» : Perhaps I could just add to that one thing that gets little attention sometimes is the work we do offshore with our overseas partners. Just in this last financial year 15 children have been removed in the Philippines from positions of harm and abuse, as well as two children in Thailand. Our international partners have taken those children into care. The children have been exploited and used by paedophiles and child pornographers to actually manufacture material and then transmit that around the world. So I think that is a great success, and it gives us a lot of comfort that we are able to do something for those poor children who are the victims of this crime every other day. It is not a victimless crime, as some people might see it—just looking at an image. There are children behind this who are the victims of this every other day in many developing countries and developed countries around the world. So those 17 children are very grateful for the work done by those people and the «AFP» , I think.
Senator FURNER: Do those governments understand the severity and the insidiousness of this type of crime and realise that it has to be stopped?
Mr «Negus» : Those two countries, for example—the Philippines and Thailand—both give us fantastic support. They understand, although I think the magnitude of the problem in these countries is difficult for them to get a grasp of. But we do receive very good assistance from them where we can, tracking down and certainly looking for linkages in terms of Australians who «may» travel overseas to conduct offences offshore. We have extraterritorial reach and we do regularly charge people for that. They «may» think they can get away with it in developing countries but we do have the reach to bring them before the courts here in Australia.
Senator BRANDIS: Commissioner, I want to start by asking you about the incident that occurred on 23 April this year on a Qantas flight between Sydney and Brisbane when the «AFP» were called following a complaint by the Qantas crew of that aircraft about the behaviour of the Attorney-General, Mr Mark Dreyfus. The reports of the incident in the press, which have not been disputed, tell us that Mr Dreyfus, contrary to the instruction that is routinely given at the beginning of every flight, refused to turn off his mobile telephone; that a fellow passenger then remonstrated with him to turn off his mobile telephone and he declined to do so; and that a Qantas crew member remonstrated with him to turn off his mobile telephone immediately and admonished him and he refused to do so; and that the Qantas crew member took the matter so seriously that he or she reported the situation to the captain of the flight and the captain of the flight took the matter so seriously that he alerted the Australian Federal Police, who met Mr Dreyfus and spoke to him when he arrived in Brisbane. Was a file created in relation to this episode?
Mr «Negus» : Yes, the matter was reported. There are some things you have said that I can confirm, and there are some things in there that I think we do not have the same account of. So perhaps I could tell you the AFP's account.
Senator BRANDIS: Well, you take me though, in your own words and as fully as you feel able, your report of the incident.
Mr «Negus» : On 23 April at 6.50 pm the «AFP» attended Brisbane domestic airport—the Qantas terminal there—in regards to what was reported as an incident aboard a Qantas Sydney-to-Brisbane flight. The incident involved a passenger failing to comply with instructions—and it is not an offence of using a mobile phone; it is an offence of failing to comply with the instructions of the cabin staff or the captain.
Senator BRANDIS: And that is an offence against the provisions or regulations made under the Civil Aviation Act.
Mr «Negus» : That is right. Now, the incident involved, as I said, a person allegedly failing to comply with instructions. The «AFP» was informed by Qantas staff at the time the call was made that it was the Attorney-General, Mr Dreyfus. Qantas advised that they were dealing with the issue as a customer service issue and would report the matter internally. The «AFP» attended and spoke to the Qantas staff member, and they provided a statement to that effect—that they did not want to refer the matter to the «AFP» , that they were dealing with it as a customer service issue. And, to the best of my knowledge, Mr Dreyfus was not spoken to by a member of the «AFP» at the time. That is not in the report. On that basis, it was not referred to the «AFP» and the «AFP» did not investigate it any further.
Mr «Negus» : The file would be the initial report, the fact that a team responded to that report, who they spoke to and the fact that a statement was taken from the Qantas person stating that they did not want any further action taken and that they were going to deal with it as a customer service issue.
Mr Drennan : I do not know the precise details of the person. It was not the captain; it was a member of the Qantas staff.
Senator BRANDIS: Was it a member of the flight crew, or the ground staff?
Mr Drennan : It is my understanding that it was the ground staff.
Senator BRANDIS: Was it one officer, or more, who took the statement?
Mr Drennan : Again, it would have been an officer who took the statement. Whether or not there were other «AFP» officers in attendance I do not know, but I would assume so in that the normal process would be for at least two officers to turn up to any incident.
Senator BRANDIS: I understand that Qantas «may» have wished to treat the matter as a customer service matter, and I understand that there is a degree of discretion exercised in policing, given the seriousness of the matter. But it is the case, isn't it, Commissioner «Negus» , as you have said, that refusal to obey a direction given by a person in charge of a flight is an offence against the Civil Aviation Act?
Mr «Negus» : It is, but, as you would understand, without a complainant who perhaps gave that instruction being prepared to give us a statement to that effect and go to court, there was nothing more that the police could do in that matter. And, really, it comes down to a matter of whether Qantas wanted to pursue the matter in a particular way.
Senator BRANDIS: Sure, I understand that. And but for the identity of the individual concerned, perhaps nothing more would have been thought of this. But, given that the individual concerned was the first law officer of the Commonwealth, apparently engaged in a breach of the law, one can understand why this matter has attracted a degree of notoriety. How often in the last 12 months have «AFP» officers been called out to investigate an incident aboard an airline involving a passenger allegedly refusing to comply with a direction being given by air crew?
Senator BRANDIS: That would be helpful, yes.
Senator BRANDIS: Of those four categories, I think we «may» assume that is was not the first or the fourth—smoking or, let us assume, intoxication. So it was certainly failing to comply with an instruction, and it «may» also potentially have been—but we cannot be sure of this—disorderly conduct.
Senator BRANDIS: So there was sufficient particularity provided by Qantas to the «AFP» that the nature of the misbehaviour was able to be classified into one of the four categories that you classify these two things into. How many of the 143 offences since August 2006 have consisted of failure to comply with a direction?
Senator BRANDIS: That will be helpful, yes.
Senator BRANDIS: Does that mean a charge, in effect?
Mr «Negus» : They were issued with a type of summons whereby they would be asked to come to court. Thirty-six matters were referred to CASA. For 51 matters the person was cautioned or there was insufficient evidence to proceed. And two failed to proceed for mental health reasons.
Senator BRANDIS: In this case that falls into the third of those four categories—that is, either the person was cautioned or there was insufficient evidence to proceed—the insufficiency of the evidence was because Qantas, not wishing to have the matter dealt with as a criminal matter, indicated to your investigators that they would prefer to treat it as a customer service matter and—to use the inaccurate but commonplace phrase—they did not want to press charges.
Senator BRANDIS: In circumstances in which the airline says to you, 'Well, we don't want to press charges; this is a customer service matter', would it be almost invariably your practice to do what the airline wanted and just let the matter lie, as it were?
Mr «Negus» : In cases such as this, if there had been an assault or something outside of the CASA regulations, certainly we would re-evaluate that. But where the discretion lies with the failure to comply with instructions, then the evidence about instruction being given is critical to the prosecution going forward. So we would not take that matter any further.
Senator BRANDIS: So you would not have been able to prosecute this case without the active cooperation of Qantas, and Qantas said they did not want it to turn into a criminal matter, effectively?
Senator BRANDIS: And there have been 51 cases in that category in the last seven years, so that is about seven a year.
Senator BRANDIS: I suppose the matter speaks for itself. Now, let me turn to another matter. I do not know if you were following the «Senate» estimate on Tuesday in this committee when the department of immigration was before the committee. But the committee heard some evidence from Mr Bowles of the department in response to questions asked of him by Senator Cash concerning the issue of the location—that is, the locating, I suppose is the right word—of asylum seekers in communities around Australia. Senator Cash was asking Mr Bowles whether a request had been received by the department, by the New South Wales police force and/or other state and territory police forces to provide location details of IMAs—that is, irregular maritime arrivals—released on bridging visas. And Mr Bowles said, in answer to that question: 'I had a conversation with the commissioners of police services across the states and territories as recently as two weeks ago. Some were represented by their deputies, and there are also deputy commissioners meetings as well. I have been talking to commissioners about what level of data we should and should not release. We have an active engagement happening at the moment, with the deputy commissioners meeting. I am not sure when that is on.'
Mr Cahill, who I think was also from the department, said: 'I met with the deputy commissioners last week by conference call.' Mr Bowles: 'I had the initial meeting with the commissioners, and so the New South Wales commissioner was there, as was the «AFP» commissioner, and we talked about a range of issues. Out of that came the arrangement that Mr Cahill would meet with the deputy commissioners and work through a range of data that we can provide to police commissioners.'
Now, Commissioner: can you confirm the evidence given by Mr Bowles that you were one of the participants in that meeting of state and territory police commissioners to discuss this issue?
Senator BRANDIS: Who initiated that meeting?
Mr «Negus» : I will have to get the dates right here, but probably about six weeks ago the commissioners had a general meeting, which is a normal routine meeting at which there were some concerns expressed about the lack of information about people being placed into the community on various degrees of visa representation.
Senator BRANDIS: Just pausing there: Were you only talking about irregular maritime arrivals? Or were you talking about other categories of people as well?
Mr «Negus» : It was a very broad conversation, but it was to the effect that we, particularly the states and territories, would like to get Mr Bowles to come to the next meeting of the commissioners and to talk to them about what was being done and what information could be provided to enable law enforcement to take appropriate steps in their own communities and understand who are the new people coming into those communities at that time.
Senator BRANDIS: And irregular maritime arrivals was certainly at the top of your mind, I assume.
Mr «Negus» : Yes, it was. It was another three months, I think, before the commissioners would get back together. And I think it was at the instigation of Commissioner Scipione from New South Wales; he sought to have a teleconference undertaken, with the people represented, and that is what took place approximately two weeks ago.
Senator BRANDIS: Now, Commissioner Scipione obviously sought to raise this matter and to convene this teleconference because he was concerned there was a policing problem. Do you agree with that view, that the presence of these large numbers of IMAs in the community represents a policing problem?
Mr «Negus» : From the AFP's perspective, our role in community policing is much lower than our role in national policing. Of course, the ACT is the exception. I can see where their concerns were, but I do not share those concerns. I think, from the data I have seen, people on visas in the community are under-represented compared with the general community in the commission of crime or in being victims of crime or the subject of crime. So, whilst I could understand their concerns, I think it needed to be aired, and it gave Mr Bowles an opportunity to talk about what the department was doing to try to share information accordingly and give people a sense of surety that what could be done was being done to allow them to know what was going on.
Senator BRANDIS: Would it be fair to say that the concerns expressed by Commissioner Scipione, whose organisation has, as you say, a much more direct involvement in community policing than the «AFP» does, were shared by the commissioners or deputy commissioners of the other state and territory police services?
Mr «Negus» : To varying degrees. I think that some were concerned to the same level as Mr Scipione, but some, I think, also recognised they were interested in the outcome but did not really share the same level of concern that Mr Scipione had.
Senator BRANDIS: There was a level of concern among some of the state and territory police commissioners, but it was not uniform. Would that be a fair summary?
Senator BRANDIS: What was the concern?
Mr «Negus» : One of the main concerns was identity, in that people who were here on visas did not necessarily have a fixed address. Mr Bowles provided a range of information—I am not sure if he shared it with the committee—about identity cards that were being issued. There was some concern about whether or not that should have a residential address attached to it. There was quite a bit of discussion about that.
Senator BRANDIS: I hear what you said before about what the statistics show, but was the concern expressed also a concern that this was potentially a community safety problem that there were all these people whose identities were not established being introduced into communities?
Mr «Negus» : There were a full range of concerns, I think, expressed. An example from Western Australia, for instance, was that, if someone was injured in a car accident and had no other identification on them, how would they be identified with no next of kin? Mr Bowles was able to put that to rest in that, if they had a card, the department of immigration could be contacted and would provide the person's latest residential address. Of course, people in these types of environments do move around and we did not want to have to issue a new card every six weeks that somebody was moving to a new location. There was a general range of concerns, but I think there was also an absence of knowledge from the states and territories about the program, what it meant, what was being done and how it was being overseen. Mr Bowles was able to provide, I guess, a level of comfort in that regard that the department is doing what it can to monitor and oversee the movement of people into the community, and that it was prepared to help the state and territory police with any concerns they had.
Senator BRANDIS: I asked about the community safety issue. That was raised, wasn't it, by at least one of the participants in the meeting?
Senator BRANDIS: So that was among the concerns that were ventilated at the meeting?
Senator BRANDIS: Commissioner Scipione is in fact the current chair of the police commissioners group, the peak group of state and territory police commissioners, at the moment, isn't he?
Mr «Negus» : There are various groups that all of us chair. At the moment, that is held with the Northern Territory—the meeting where we had this discussion was in the Northern Territory. But Commissioner Scipione sought to take ownership of this issue and organised the teleconference.
Senator BRANDIS: The issue of gaining access from DIAC to the residential address details of asylum seekers released on bridging visas and placed in community detention was one of the matters discussed, wasn't it, and Mr Bowles was seeking to cooperate with you in providing those details to you.
Mr «Negus» : Yes, he was. To go back to your earlier point, the deputy commissioners, who were already looking at some of these issues, were assigned to take these matters further. So the meeting itself did not reach any conclusions other than that it would be referred back to the deputies, who were to have the meeting that you mentioned and take these issues further.
Senator BRANDIS: It is the case, isn't it, that the commissioners indicated to DIAC that they required access to residential address details for asylum seekers being released on bridging visas or placed in community detention. That was something that the commissioners took to the department and, indeed, that was one of the main reasons for the teleconference.
Senator BRANDIS: It was an outcome of the meeting.
Senator BRANDIS: Was that outcome in fact secured? Did Mr Bowles give those undertakings?
Mr «Negus» : I cannot recall other than to say Mr Bowles was very cooperative and tried to do what he could to allay any fears and referred matters back to the deputy commissioners. Mr Colvin, who would have been at that last meeting, is here. Perhaps he can give you more detail.
Mr Colvin : I will put some dates on the record. At the 17 April deputy commissioners operational management meeting, which is a meeting we have regularly, DIAC did come and this issue was discussed. The concerns the commissioner has raised were talked about in a general sense. That was then followed by the meeting you were talking about, Senator, on 17 «May» —the teleconference with Commissioner Scipione—where the issue was pushed back to the deputy commissioners forum. We met by teleconference on 23 «May» . Mr Cahill, whom you heard evidence from on Monday or Tuesday, spoke to the deputy commissioners or their representatives and has agreed to come back to us with some information about what detail can lawfully be provided. Under the circumstances, as the commissioner has said, one of the challenges for DIAC is that these people who are placed into the community «may» only be in a location for a short period of time before they move. So their initial location «may» not be their ultimate location. DIAC and Mr Cahill were very helpful and have committed to coming back to us within the coming weeks with a suite of measures and some legal advice about what can be provided to state and territory jurisdictions.
Senator BRANDIS: Had access to this information, particularly the address details of the IMAs released into the community, been previously sought by police commissioners and refused? Or was this the first occasion on which the wish of at least some of the commissioners to have this information was, to your knowledge, raised at least at that level with DIAC?
Mr «Negus» : It was the first time, from my memory, that it was raised as a collective. I am not sure what has been sought by individual police forces from DIAC in the past. They all have strong bilateral relationships with DIAC in their own right. They do not come through the Commonwealth law enforcement agencies.
Mr Colvin : The issue has been around for some time and has been discussed at various deputy commissioner meetings. The issue has changed and morphed over that time. I do recall one previous occasion where, on behalf of the deputy commissioners, I did write to DIAC to say we were seeking some more information about what forms of identity those people released into the community would actually have. At the time it was paper based. As the commissioner has said, it has now transitioned into a card. So it is not a new issue.
Senator BRANDIS: How long ago was that, Mr Colvin?
Mr Colvin : I would have to take an exact date on notice.
Senator BRANDIS: Roughly.
Mr Colvin : About 12 months ago.
Senator BRANDIS: When you wrote to DIAC then, did you get the level of cooperation you were hoping for?
Mr Colvin : The issue was mainly one for the states and territories, so I cannot answer on their behalf. But certainly DIAC responded and information has been provided. The issue has, of course, been raised again.
Senator BRANDIS: I think I interrupted you, Mr Colvin. Were you going to go on to say something more about the issue?
Mr Colvin : No.
Senator BRANDIS: Does the «AFP» have a view about whether there are any valid privacy grounds to deny state and territory police forces access to residential address details of IMAs released into the community?
Senator BRANDIS: They have not raised privacy concerns with you?
Mr «Negus» : They have. As the deputy commissioner just indicated, there are a range of legal issues here which they are getting advice on so they can provide what they can in the context of meeting the requirements of the states and territories. But, from the AFP's perspective, we will await DIAC's view like everyone else.
Senator BRANDIS: That advice, as you understand it, is currently being sought?
Senator BRANDIS: Mr Colvin, you were at the most recent meeting, so why don't you just tell the committee where it was left; what, if any, decisions were made; and where we go from here in relation to this issue?
Mr Colvin : Privacy was raised, as the commissioner has said. That is one of the key issues in determining what the legislation will allow. DIAC have agreed to go away and seek some advice. They are doing that.
Senator BRANDIS: What was the legislation under discussion? Was that the Migration Act?
Mr Colvin : Both the Migration Act and the Privacy Act.
Senator BRANDIS: I cannot see how the Privacy Act would have much to do with a case like that, but please go on.
Mr Colvin : DIAC have agreed to come back with some further thoughts on what can be released and how it can be released. The issue comes down to services providers as well. Some of the information is held, of course, by service providers who are acting on behalf of DIAC.
Senator BRANDIS: Like Serco and people like that?
Mr Colvin : No, not necessarily Serco; they are non-government organisations who look after the welfare of some of these people released into the community. We are effectively awaiting DIAC to come back to us and I have full confidence that they will do that shortly.
Senator BRANDIS: I must say that it does strike me as very surprising that, if a department of the Commonwealth—that is, DIAC—has information in relation to a category of persons and the police forces of at least some of the Australian states where these people live, led by Commissioner Scipione, commissioner of the biggest of the Australian police forces, raise a concern from, among other things, a community safety point of view, there would not be a ready ability for a Commonwealth department to provide that information to the state police, subject to obvious confidentiality undertakings. Surely it is a commonplace thing for Commonwealth departments to provide information about groups of persons who the police have concerns about, from a community safety point of view, to the state and territory police. Surely that happens.
Senator BRANDIS: Yes, that is true. It is more a question for them and they were asked that on Tuesday. Fair enough. I have one other matter, Commissioner «Negus» . Earlier on, before the lunch adjournment, you were being asked some questions about the report on the 7.30 Report on Monday evening concerning Christmas Island. I do not want to go over all of that again, because you were asked a lot of questions about that by my Greens colleagues, but do I understand that your evidence was that there was no reference to Sergeant Brendan Thomson in any of the email communications?
Mr «Negus» : No, that is incorrect. We went through in some detail. There was an original email that was sent which had no reference to Sergeant Thomson. A subsequent email was sent to a limited number of people which did reference Sergeant Thomson.
Senator BRANDIS: I want to turn now to the question of detention centres, referring specifically to the current budget. Do you have a copy of the portfolio budget statement there?
Senator BRANDIS: I take you, please, to page 145, table 1.1, the agency resource statement for your agency. If we go to the bottom line of the total net resourcing for the agency, the «2013» -14 estimate compared to the 2012-13 actuals shows that you have taken another haircut, haven't you? Your total resourcing in the «2013» -14 year will be $1,708,534,000 compared to $1,753,749,000 in the previous year. So your budget has been cut by about $45.2 million. Is that right?
Senator BRANDIS: $45.2 million.
Mr Wood : The line-by-line comparison of each of those columns shows where the shifts in the funding have occurred—
Senator BRANDIS: Yes, I see that. But a lot of it has come from the International Deployment Group—
Mr Wood : Correct. So we have reduced the level of activity in Afghanistan which we talked about earlier here and also the funding for RAMSI is less than it was the previous year for the Solomon Islands. Also, there are shifts in the capital funding because we have had major projects around the airports ceasing, albeit in the year after this, we then have more money coming through for our new forensic facility, for example. So the line-by-line shifts in the budget show that, particularly in the area of equity injections and particularly in the areas that you have highlighted, senator, around funding the International Deployment Group, there has been an explicit reduction in some of those activities, particularly Afghanistan and the Solomon Islands.
Senator BRANDIS: Yes. Some of those reductions, because of the expiry of the mission, are understandable.
Mr Wood : Or redesign of the mission for the next two or three years.
Senator BRANDIS: Expiry or recasting of the mission?
Mr Wood : Yes.
Senator BRANDIS: That is fine. Some of those are understandable but there is one, though, that does trouble me. It is a budget measure. Have you got budget paper No. 2 there? Page 86. The first budget measure on page 86,redirection of surge capacity program, says the government will save $19.6 million over four years—that is just a flat-out reduction over the forward «estimates» —by redirecting funding from the Australian Federal Police's surge capacity program into other government priorities, but the «AFP» will continue to have a surge capability through the Specialist Response Group. This is just a flat-out capability reduction to a standing program—that is, the surge capacity program. Can you tell me in the first place what the 'surge capacity program' is designed to do?
Mr Wood : The surge capacity program within the protection function of our organisation is intended to ensure that for specific events that occur we have a capacity to increase the rate of effort to address that particular event That «may» be, for example, to increase our level of activity to support the visit of a head of state. It «may» relate to a specific event not quite on the scale of a CHOGM but a smaller-scale event where we do need to increase our rate of effort with our protection resources.
Senator BRANDIS: And there has been no corresponding increase in the other program, the Specialist Response Group. So, even though it is said in the budget paper that the Specialist Response Group could deal with some of the matters that the surge capacity program deals with, in fact the surge capacity program has been degraded by about $19.6 million and the Specialist Response Group has not had any increase in its allocation, has it?
Mr Wood : That is correct.
Senator BRANDIS: I want to go back to my previous questions, Mr «Negus» , to clarify one point. Or is it Mr Colvin—whoever is best to answer this. Is it the case that notwithstanding the discussions about the provision of addresses or locations of IMAs in the community, DIAC has not at this point agreed to provide that information?
Senator BRANDIS: Are there any arrangements between the «AFP» and DIAC providing for the reimbursement to the «AFP» by DIAC of some or all of its expenses related to people smuggling and detention operations?
Mr Wood : There are administrative arrangements agreed between DIAC, the «AFP» and the Department of Finance and Deregulation where in relation to costs associated with the support we are providing for, for example, the escort of IMAs between detention centres we will invoice DIAC—
Senator BRANDIS: On a fee-for-service basis?
Mr Wood : We have structured the relationship on a fee-for-service basis.
Senator BRANDIS: But I imagine that is only in relation to specific services like the example you instanced. But for the broader policing support function that the «AFP» carries out that bears upon the asylum seeker and detention centre issue, do you have any cost recovery from DIAC?
Mr Drennan : Yes. Certainly for services that we provide for DIAC in regards to transport of people on planes we directly invoice them. Similarly, where we are deploying resources to Christmas Island to support the public order issues in relation to detention centres, again, we invoice DIAC.
Senator BRANDIS: Do you? So when you send officers to Christmas Island, you charge DIAC for them?
Mr Drennan : When it relates to issues regarding the detention centre. If it relates to the investigation of people smuggling and the interviews of potential witnesses then those are matters that come from our appropriations.
Senator BRANDIS: I mentioned before a fee-for-service basis, but would it be more accurate to call it a cost recovery basis?
Senator BRANDIS: So you do not make a profit on—
Senator BRANDIS: Presumably you charge an administrative charge of some description?
Senator BRANDIS: That is fine.
Senator KROGER: Is it full cost of recovery of direct costs of services and so on, not cost recovery in terms of the value of personnel on the ground at the time?
Mr Drennan : It is the actual direct costs in relation to providing the services. Some of those include salaries. In some other cases it does not. How we determine that is quite complex. But certainly providing the services and the deployment of our people to those particular roles are all the costs except for salary, which is only included in some instances.
Senator BRANDIS: Can I move to something else, please. You have seen reports, I am sure, in the media about an Egyptian asylum seeker who it is alleged had been convicted of terrorism offences some years ago in Egypt. His name is not in the public domain, but you would be aware of the case. Has the «AFP» been involved in investigating that man?
Mr Drennan : As you would appreciate, we are limited in what we can say.
Senator BRANDIS: Sure. I am not going to ask you to say more than you should—
Mr Drennan : Thank you.
Mr Drennan : We have been involved in identifying the person who is the subject of the issue.
Senator BRANDIS: And that person's identity has been established, has it?
Mr Drennan : That is correct.
Senator BRANDIS: Is the man still at Inverbrackie?
Mr Drennan : No, he is not.
Senator BRANDIS: Are you at liberty to tell me where he is?
Mr Drennan : He is in a detention centre in Sydney.
Senator BRANDIS: As I understand it, he was taken back into detention after having been released on community detention. When did he go from Inverbrackie to the detention centre in Sydney?
Mr Drennan : On 17 April this year he was moved by DIAC to a secure detention centre.
Senator BRANDIS: By 'establishing the identity' I assume you mean matching his identity with the identity of the person whom he was alleged to be. Is that a fair characterisation?
Mr Drennan : Yes.
Senator BRANDIS: Is that the limit of the AFP's role?
Mr Drennan : Yes, it is.
Senator BRANDIS: Who has progression of the matter at the moment, by the way? Is it DIAC? He has been taken back into detention. Is your role finished for the moment or will there be further steps undertaken by you involving the investigation of this man's alleged past offences?
Mr Drennan : Certainly the person's offences are matters which, you would appreciate, Senator, will need to take another course, but we would assist with that if requested. As far as anything else we «may» do here in relation to him, that is something that we are monitoring but it is not something we are actively doing at the moment. As far as the person's progression through the immigration processes is concerned, it is a matter for Immigration.
Senator BRANDIS: I understand that. While the man was released into the community before being taken back into detention was he investigated for any offences in Australia?
Mr Drennan : I need to be cautious here in relation to what I say. Firstly, he was in the Inverbrackie Alternative Place of Detention; that is to be precise as to where he was.
Senator BRANDIS: At some stage, though, he had been released into the community, hadn't he?
Mr Drennan : The advice I have is that he was detained in Inverbrackie Alternative Place of Detention.
Senator BRANDIS: Since he has been on the Australian shore, has he been under investigation for any offences?
Mr Drennan : Our role was to attempt to identify him and establish his identity and to establish that he was the same person who was the subject of those other matters. That has been the extent of our involvement.
Senator BRANDIS: And the other matters were alleged terrorism offences tried in Egypt some years ago, were they not?
Mr Drennan : Yes.
Senator BRANDIS: Mr Colvin, what can you tell us about the AFP's involvement in that case?
Mr Colvin : Certainly we are aware of the matter. We have been in constant discussion with DIAC about the allegation that this person was involved in a murder in «Sri» «Lanka» . Similar to the matter that you have just heard about from Deputy Commissioner Drennan, our role has been principally to identify whether this is the same person. There are limitations and restrictions on what we can do to identify him while he is going through an immigration process.
Senator BRANDIS: Have you established that identity or is your investigation into the matter still ongoing?
Mr Colvin : We cannot with a 100 per cent guarantee establish the identify, but we are satisfied that it is most likely the same person, yes.
Senator BRANDIS: Has that person being taken back into detention?
Mr Colvin : Yes, he has.
Senator BRANDIS: Was there a time when he had been released into the community?
Mr Colvin : Yes, there was.
Senator BRANDIS: When was he taken back into detention?
Senator BRANDIS: When did he arrive in Australia?
Mr Colvin : We were first alerted by the Australian consul in Colombo, «Sri» «Lanka» , in July 2012. Then there were subsequent pieces of information that we had begun to pull together to work out whether we could establish conclusively that it was the same person. But July 2012 was when we were first alerted to the possibility that this person had travelled to Australia and was a wanted murder suspect in «Sri» «Lanka» .
Senator BRANDIS: In relation to both the Egyptian terrorist and the «Sri» Lankan man who is wanted for murder in «Sri» «Lanka» , were either of those two individuals the subject of an Interpol red notice?
Senator BRANDIS: Just explain to the committee, would you, please, what a red notice does and particularly who in the Australian law enforcement network has access to these Interpol red notices.
Mr Colvin : Firstly, red notices are managed and facilitated by Interpol. We are the representative for Interpol in Australia. We are the conduit for information from Interpol. All Australian law enforcement agencies, though, have access to Interpol information. Mostly it will be via us. Interpol have a range of notices that have different colours and they relate to different types of matters. It could be a family law matter or a missing person notice. It could be a list relating to passport offences. A red notice is the most serious of the notices. It is a notice that effectively signals to a jurisdiction that there is another jurisdiction that has an interest in a particular individual. A red notice will normally be particularised to the point that we can identify who that individual is and what the charges relating to that individual are. What it is not—and this is a common misconception in the community—is a notice to arrest. It is not an arrest warrant in any way. It has no legal basis here in Australia. What it is for us, though, is a flag so we can go back to the country that has asked Interpol to create this red notice if we need to establish certain things, which includes their preparedness to seek extradition and their ability to meet the Australian thresholds and the complete extradition process that you are quite familiar with. That is a process that is managed by the Attorney-General's Department.
Senator BRANDIS: So the red notice is kind of the wanted poster of the digital age, is it?
Mr Colvin : You could put it that way, yes.
Senator BRANDIS: If the Egyptian terrorist was the subject of an Interpol red notice, one would expect that when the security checks on him after his arrival were carried out that fact would have been checked and discovered. Would it not?
Senator BRANDIS: I understand that. By the way, I am not saying that you missed anything here. In fact, you are the one who picked it up, so this is not a criticism. I am just asking you to help me understand the process. At the earliest point at which the Egyptian terrorist was assessed those who assessed him, whether it was DIAC or ASIO or whoever carrying out a threat assessment, would have been in a position to access the Interpol red notices and check each IMA to see whether there was a red notice out for him or her, wouldn't they?
Senator BRANDIS: You brought it to their attention? Who brought it to your attention?
Mr Colvin : We will double-check. Deputy Commissioner Drennan feels it was through routine checks on the names.
Senator BRANDIS: The information on the Interpol red notice I think you told us a moment ago also includes the crimes for which the person is being sought. What were the crimes for which this person was being sought by the Egyptian government?
Mr Colvin : The offences on the red notice related to his conviction in absentia for terrorism related matters.
Senator BRANDIS: By an Egyptian court?
Mr Colvin : Correct. What I do not have are the particulars of the offence.
Senator BRANDIS: Were they not on the red notice?
Mr Colvin : Ordinarily they would be because a red notice is normally quite detailed.
Senator BRANDIS: You do not have a copy of the red notice to hand?
Mr Colvin : No, I do not.
Senator BRANDIS: Even if you do not, can one of the other officers tell us a bit more fully about the crimes this Egyptian man had been convicted of.
Mr Drennan : Yes. As Deputy Commissioner Colvin said, he was convicted in absentia by a military tribunal in Egypt.
Senator BRANDIS: When, by the way? What year?
Mr Drennan : I do not have that date.
Senator BRANDIS: What more can you tell us?
Mr Drennan : The conviction was in relation to being a member of a terrorist organisation and for being involved in terrorist activities.
Senator BRANDIS: I see. Were there two convictions on those two separate charges? Or was there a multiplicity of terrorist activity?
Mr Drennan : The red notice was for those two particular offences.
Senator BRANDIS: Do we know what the proscribed organisation was?
Mr Drennan : I did not say it was a proscribed organisation; it was a terrorist organisation. As you can appreciate, proscription is different in different countries in relation to what organisations «may» be proscribed.
Senator BRANDIS: Quite right. So under Egyptian law there is a crime relating to being a member of a terrorist organisation and the Egyptian authorities have their own way of deciding what is a terrorist organisation and what is not and if you are a member of a terrorist organisation for the purposes of Egyptian law you have committed that crime against Egyptian law?
Mr Drennan : That is correct.
Senator BRANDIS: Can you take on notice what terrorist organisation he was convicted of being a member of?
Mr Drennan : Yes, I can. I can tell you that the Interpol red notice was issued on 9 October 2001.
Senator BRANDIS: And would we expect in the ordinary course of events that that means that the convictions were recorded reasonably soon before then?
Mr Drennan : Probably not. I would like to think so, but when a person is convicted here in Australia of a significant offence it would not be the normal course of duty to automatically take out a red notice with regards to that person unless we thought that person was overseas or travelling. I would hate to jump to that conclusion.
Senator BRANDIS: No, that is fine. I do not think much turns on that. So the second offence for which he was convicted by the military tribunal was for terrorist activities. So we know at least, assuming the conviction by the Egyptian court was a regular and valid one, that he was not just a passive member of a terrorist organisation in the eyes of the Egyptians but had actually done things that were terrorist acts. Do we have any particulars on what the terrorist acts were?
Mr Drennan : I am just looking at what I have here. My recollection of the red notice is that there were two specific offences, but the briefing we have here says that he was convicted in absentia of: premeditated murder; destruction of property; possession of firearms, ammunition and explosives without a permit; and membership of a terrorist group.
Senator BRANDIS: Does that note you are reading from now tell you the name of the group?
Mr Drennan : No, it does not.
Senator BRANDIS: Are there any other offences?
Mr Drennan : Forgery of documents.
Senator BRANDIS: So—premeditated murder, destruction of property, possession of firearms and possession of explosive devices without a permit. Do we know whether all of those offences related to a particular terrorist act? They would all be consistent, for example, with exploding an explosive device and killing people in the course of that act. Does your note tell you whether those offences were all generated by a single terrorist act or by a multiplicity of different terrorist events?
Mr Drennan : Again, the note does not tell me. My recollection from the red notice is that it was for offences both inside and external to Egypt.
Senator BRANDIS: So this person was a serial terrorist as well as, obviously, a serious terrorist if he is engaged in premeditated murder, among other things. Is it a man we are talking about?
Mr Drennan : Yes, it is.
Senator BRANDIS: When did this man arrive in Australia?
Senator BRANDIS: Where was he first accommodated when he arrived in Australia?
Mr Drennan : The first note that I have says that he was processed by DIAC and then moved to Inverbrackie detention centre.
Senator BRANDIS: Did he come to Christmas Island initially?
Mr Drennan : I think that is correct, but I would need to confirm that.
Senator BRANDIS: You think he went to Christmas Island but you are sure he then went to Inverbrackie.
Mr Drennan : Yes.
Senator BRANDIS: When did he go to Inverbrackie?
Senator BRANDIS: That is the day you told me he arrived.
Mr Drennan : Yes, sorry. Just let me clarify that. He arrived on that date. We do not know on what day he was moved to Inverbrackie.
Senator BRANDIS: You do not know what day he was moved to Inverbrackie?
Mr Drennan : No.
Senator BRANDIS: Was he released into the community?
Mr Drennan : I do not know. You would need to ask DIAC. My records show only that he was in Inverbrackie detention centre.
Senator BRANDIS: What was the date on which you became aware of the existence of the Interpol Red Notice?
Mr Drennan : I think it took some time to establish the identity and tie it up with the Interpol Red Notice, but I can say that definitely on 26 June we were aware that he was possibly the person who was a match for the Interpol Red Notice.
Senator BRANDIS: Then you carried out a process of investigation and arrived at the conclusion that he was in fact the same person as the person identified on the Interpol Red Notice. When did you arrive at that conclusion?
Mr Drennan : On 14 November 2012.
Senator BRANDIS: Was he still in Inverbrackie at that stage?
Mr Drennan : Yes, he was.
Senator BRANDIS: I assume you advised DIAC immediately you had arrived at that conclusion.
Mr Drennan : Yes, we did.
Senator BRANDIS: When was he taken back into more secure detention?
Senator BRANDIS: That is the one in Sydney?
Mr Drennan : That is correct.
Senator BRANDIS: Does that mean that between you having finally established his identity as the person who was the subject of the Red Notice, on 14 November, and him being moved to the more secure facility, on 17 April «2013» , five months elapsed while he remained in Inverbrackie?
Mr Drennan : On the notes that I have, we confirmed on 14 November when he was in Inverbrackie, and he was transferred to the detention centre in Sydney on 17 April.
Senator BRANDIS: And that is where he is now?
Mr Drennan : To my knowledge, yes.
Mr Drennan : No, Senator. If I can just clarify two of the issues you asked about before. The actual conviction was on 18 April 1999 and the terrorist organisation is the Egyptian Islamic Jihad.
Senator BRANDIS: I know this is more a question for DIAC than for you, but perhaps you «may» be able to give us some information about this, Deputy Commissioner. Is there any explanation of why this man, who is plainly a dangerous terrorist, was allowed to stay in Inverbrackie for five months before he was taken into more secure detention?
Mr Drennan : Senator, I think you answered the question: it is more a matter for DIAC.
Senator BRANDIS: Fair enough. Thank you very much, Deputy Commissioner, that is very helpful. I want to ask you a question about the Anti-Gang Taskforce. I understand—though I am sorry I do not have the source document with me—that you, Commissioner, have indicated to the staff that $58 million has been allocated over four years for the establishment of an «AFP» -led national anti-gang task force. Is that is right?
Senator BRANDIS: Was that in the budget?
Senator BRANDIS: Was that a specific budget measure?
Mr Wood : Just while you are looking for your next question, Senator, in the PBS on page 147 there are measures announced since the MYEFO and the top of the page addresses gang violence and organised crime et cetera. There are also entries in other agencies that are part of the task force, but that is our entry.
Senator BRANDIS: Yes, I see. Is that money actually in the budget?
Mr Wood : It is on page 137 of our PBS and is in our budget—
Senator BRANDIS: No, but—
Mr Wood : Sorry, yes, Senator, it is.
Mr Wood : That is correct, yes, it is.
Senator BRANDIS: Thank you very much. I have finished.
Mr Colvin : Madam Chair, can I answer one question that Senator Brandis asked me to take on notice?
Mr Colvin : Senator, I indicated that the issue in relation to information being provided to state and territory police by DIAC was not a new issue; it had been around for some time. I initially wrote to my counterpart in DIAC in December 2011 and they responded on those issues, which were very similar, in January 2012.
Senator BRANDIS: Thank you very much.
Senator KROGER: I wanted to ask a question about what I think you referred to as a red notice—the description used—
Senator KROGER: for the No. 1 classification with Interpol. What is the process if there is an Interpol red notice on an Australian citizen? How do you deal with that?
Mr Colvin : It could come to our attention in a number of ways, but once it has been brought to our attention the first step we would take would be to liaise with our counterparts in the Attorney-General's Department who control and administer the extradition and mutual assistance in criminal matters processes and acts. The first step in the process would be to go back to the source country who asked Interpol to register the notice and to seek detail from them about, firstly, whether they still intend the red notice to be in existence. Often they can be put on there long after a country has stopped looking for somebody. We would ask questions about the actual offence. We would try to establish whether they would seek that person’s extradition. If the answer to that were yes then they would need to satisfy a range of measures under Australian law about the standard of the conviction, about the information. We would have to satisfy ourselves of certain requirements with the country about their human rights records and what might be the outcome if we were to extradite a person back to that country. On the basis that all of that can be assured—
Mr Colvin : Yes.
Senator KROGER: That would be a fairly straightforward exercise. What is the process in assessing human rights—whether they subscribe to the UN human rights—
Mr «Negus» : Just while we are going to the department, I think it is important to recognise that it does not override the traditional extradition checks and balances that are in place, and the courts would still have a role in this. You would have to satisfy all of the preconditions that would exist in any extradition process before this were a flag to say that this could be something that is interesting, and we would go to that country and then start a formal process around how this might be taken forward further. But it certainly does not entitle or allow other countries to do anything to Australian citizens other than say, 'Someone should contact this country because they «may» be wanted there,' and we then start the normal process from there.
Senator KROGER: Given that you confirm that they have been sentenced for something in another country—
Senator KROGER: Or wanted for charges or whatever, and Australia has an extradition treaty with that country, and what is then the process? You determine that, yes, Australia has an extradition treaty. Is it then a court process?
Mr Wilkins : It should have been one that we answered last night, Madam Chair.
CHAIR: In terms of the department answering questions, we can do it later tonight.
Mr Wilkins : But those people were all here last night to answer these questions.
Senator KROGER: I am happy to look at Hansard. As it was just raised by the gentleman at the table, I was interested to know to what extent it is up to the individual to, I guess, fight this through the court system. I am aware of instances where red notices have been unfairly sought and Interpol has done that.
Mr Wilkins : Can I quickly say, Senator, that the process is one which is determined through the courts, but it is actually a mixed administrative and judicial process in most countries. There would need to be an application by the country wishing to extradite the person. They would need to demonstrate to the satisfaction of the Attorney-General and probably a magistrate that there was an offence committed that this jurisdiction recognises as parallel to certain offences that occur in this jurisdiction, so we do not just recognise any sort of offences, and that the processes that obtain in that country are ones that Australia would recognise as being according to certain standards laid out in the extradition legislation passed by this parliament. On the basis of that there would then be an opportunity for the person to utilise all the facilities, including judicial review and including the courts. There have been a number of cases, as you have watched in the court processes in this country, where things have gone all the way to the High Court on judicial appeal. Some extradition cases take decades to be dealt with. But if, finally, the person either consents, or the courts determine and the Attorney General determines—or if the Attorney General determines and the courts are not invoked—then the person can be return to the country which has made the application for their extradition. But that is basically the way the system works.
Senator KROGER: I appreciate that, and I do not want to go down the track of the extradition process itself. I was more interested in: once a red notice Interpol had—what is the terminology?
Mr Wilkins : There is nothing magical—
Senator KROGER: As to the onerous process of having that red notice lifted, which I know a number of people have had, what is your approach to that in the meantime? So, from an «AFP» perspective, if an Australian citizen has a red notice, clearly it would be very difficult for them to travel for starters.
Mr «Negus» : I think travel is the major concern, and we were just having that conversation here. They would have to apply back through Interpol to have that red notice lifted. But it can be put on by any of the member countries—I think we are up to 190 member countries—around the world. And then the individual, if they wanted to fight that notice being in place, would have to go back, and it could either be lifted by the country who put it in place, or it could go to the Interpol General Assembly, I think, for oversight and voting on in that context, about how it is lifted. So it is a very serious matter to have it removed. But as I said, you can imagine that there are a range of levels of development in countries around the world, and all of those are eligible to put on red notices which could apply to an Australian citizen. But as I said, all the protections under law that apply in this country, as far as extradition, apply across the board for people on Interpol red notices as well.
Senator KROGER: Could you give us an indication of how many Australian citizens would have a red notice?
Senator KROGER: Sure.
Mr «Negus» : but it is not a large population. There have been occasions when Australian citizens have been involved in, particularly, offshore issues, where they have found difficulty in travelling and have tried through a number of means to have those removed or settled in the country of origin.
CHAIR: Let us go to afternoon tea; there is no point, I think, in starting the Australian Government Solicitor with only about two minutes to go. So, Commissioner «Negus» and your team, thanks again for your presence at «estimates» this year.
CHAIR: Thanks for your time this afternoon. Let us go to afternoon tea.
Proceedings suspended from 15:27 to 15:45