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Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity
23/03/2012
Integrity of overseas Commonwealth law enforcement operations

JOHNSON, Commander Ray, Manager Professional Standards, Australian Federal Police

WHOWELL, Mr Peter, Manager, Government Relations, Australian Federal Police

ZUCCATO, Assistant Commissioner, Kevin, National Manager Serious and Organised Crime, Australian Federal Police

Subcommittee met at 13:08

CHAIR ( Ms Parke ): I declare open this public hearing of the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity. The committee is hearing evidence on the committee's inquiry into the integrity of overseas Commonwealth law enforcement operations. I welcome everyone here today.

This is a public hearing and a Hansard transcript of the proceedings is being made. Before the committee starts taking evidence I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee.

The committee prefers all evidence to be given in public but under the Senate's resolutions witnesses have the right to request to be heard in private session. It is important that witnesses give the committee notice if they intend to ask to give evidence in camera. If a witness objects to answering a question the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer a witness may request that the answer be given in camera. Such a request may, of course, also be made at any other time.

I remind committee members that the Senate has resolved that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer the questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted.

I would also ask witnesses to remain behind for a few minutes at the conclusion of the evidence in case the Hansard staff need to clarify any terms or references. Finally, on behalf of the committee, I would like to thank all those who have made submissions and sent representatives here today for their cooperation in this inquiry. I now welcome representatives from the Australian Federal Police. You have lodged a public submission with the committee which we have numbered as submission No. 5. Would you like to make any amendments or additions to that submission?

Mr Zuccato : I would like to make an addition to that submission if I could. There was a small gap in the AFP's original submission with respect to responses to question Nos 5 and 6, which were not directly answered by the AFP in the submission but were answered within the submission. I would like to take the opportunity to add to the AFP submission and I refer to the 6 February 2012 letter from the committee chair to the AFP commissioner which sought specific information regarding questions Nos 1 to 6.

CHAIR: Yes, please.

Mr Zuccato : Responses to all six questions were included within the AFP submission rather than as separate responses to each of the six questions. Separate responses were provided to question Nos 1 to 4 inclusive—in the submission, pages 13 to 15 refer. Now I would like to address question Nos 5 and 6 specifically.

Question No. 5 was whether there have been any corruption incidents in overseas operations, including officers based overseas, Australian based officers while they were overseas, or locally engaged staff. During the last three financial years there have been four complaints received regarding allegations of corruption regarding AFP appointees in overseas operations. Three of these complaints were investigated and found not to be established. The fourth matter continues to be investigated by ACLEI. Locally engaged staff are not appointees of the AFP and therefore are not subject to the integrity framework of the AFP.

With respect to question No. 6, whether the rate of occurrence of corruption incidence in overseas operations is greater on a pro rata staff number basis than within Australia, the AFP has examined its complaints data to identify trends in and the nature and extent of the corruption risks facing its employees engaged in overseas law enforcement operations. There have been a small number of corruption allegations in recent years in relation to AFP officers in offshore operations which do not point to corruption trends or broader corruption risks. Analysis of serious misconduct offshore in recent years similarly does not yield significant evidence of corruption risks trends but has enabled improved shaping of prevention and detection responses. Thank you, Chair.

CHAIR: Thank you, Assistant Commissioner Zuccato. Did you want to add anything to make an opening statement?

Mr Zuccato : No.

CHAIR: Okay, we will move directly to questions. You have said that the locally engaged staff are not subject to the integrity framework of the AFP. What measures do you have in place to ensure the integrity of locally engaged staff?

Mr Zuccato : The LES members are employed with Department of Foreign Affairs and Trade at mission, so they fall under their professional standards regime. The majority of our security LES are security cleared and they are also subject to close supervision by, at minimum, a superintendent of police who is operating within that office. So they speak to the staff about what is required from them in terms of propriety and behaviour. Indeed, in our missions overseas with respect to LES, they are certainly exposed to security issues probably more often than our members back here, so they are very well aware of the type of behaviour that needs to be exhibited. They also operate, in the majority of offices overseas, in a very secure environment which they have to undertake training and education for. As regularly as we can we also bring them back to Australia for refresher training, which includes access to professional standards. We have all of our locally-engaged staff members—all of those who can travel—attending a week of refresher training next week.

CHAIR: I notice that your submission refers to trends in the nature and extent of corruption risk facing Commonwealth law enforcement agencies in international operations. It refers to the scale and geographical spread of the AFP's operations and says that the nature of its business has created challenges in relation to managing fraud and corruption risks. These include operating in remote parts of the world within different cultural frameworks, a high level of discretion and exposure to criminality in some areas of the AFP, and the growth in risks associated with terrorism and organised crime. Do you believe that the measures that the AFP has put in place to counter those risks that you have identified are sufficient, or do you think there is more that you might be able to do?

Mr Zuccato : I think there is always more that could be done. Do I think that our current measures are sufficient? Yes, I do. If you refer to our fraud and anticorruption plan, but also our AFP integrity framework, I think that our codes of conduct, the legislation and oversight, our education and awareness regime, our early intervention program, the AFP Confidant Network and our drug and alcohol testing program really do make our integrity framework very robust. We have a very strong culture based around our core values. Indeed, you will see our core values on every glass surface in our building. They form the basis of our performance feedback throughout the year and, I really have to say, drive how we operate both internally and externally.

I think that if you look at our entire suite of programs you will find that it is extremely robust. I think that is demonstrated in the relatively low number of instances that we have both from a performance and behaviour perspective but also in terms of corruption.

CHAIR: Some of the risks that have been identified include fraternisation, with a focus on power imbalance; cultural sensitivities, including around alcohol consumption; isolation; lower security and potential for coercion; prevalence of bribery in some locations; and appropriate use of corporate cards, travel, communication claims and other corporate expenditure. Just looking at fraternisation, for example, could you give me some examples of what you mean by that?

Mr Zuccato : I can.

Cmdr Johnson : I can answer that if you like. Fraternisation is something that was identified as an area of conduct relevant to places like Solomon Islands and East Timor, Afghanistan and similar, where there is a perception of a power imbalance between the locals and AFP officers in-country. Through commanders' orders and commissioners' orders, a requirement for the fraternisation not to occur has been made really clear to people being posted offshore.

As a prevention measure we do a lot of work particularly with IDG—International Deployment Group deployments, before they go offshore, to address the issues and understand the problems. We do some more work often in-country and we have done that in the Solomon Islands as well. Our people have travelled to the Solomon Islands to do some more prevention work. In terms of dealing with fraternisation, yes, it has been known to occur. The response is, for the most part, on an established fraternisation matter. The member is repatriated and often the more serious end of dealing with it is a misconduct matter. Even within the last 12 months, I have issued a formal warning letter to somebody who it was established was engaged in fraternisation. Following a charge of fraternisation there is then the consideration of whether it would be appropriate to post that particular individual again.

CHAIR: When you talk about fraternisation, what specific behaviours are you talking about?

Cmdr Johnson : It is described generally as a sexual relationship. The development of a sexual relationship with a local is the simple way to describe it.

CHAIR: So there is no prohibition on developing a friendship relationship with the local people?

Cmdr Johnson : No.

Mr Zuccato : There is a specific purpose for our international liaison officer network. The AFP has carriage of responsibility for engaging in law enforcement overseas on behalf of Australian law enforcement. In 29 different countries, we have around about 90 to 100 people. Its specific purpose is to develop relationships with the locals, not only with law enforcement agencies but with other folks that can provide assistance. In the IDG, while not specific to its mandate, the only way it can successfully execute that mandate is to have very strong relationships. For us, the important thing is to ensure that we educate our officers to what extent those relationships can go.

CHAIR: The reason for targeting fraternisation is the focus on the power imbalance. Would it also have to do with not wanting officers to have any possible connection with trafficking or trafficked women, for example?

Mr Zuccato : There is a broad range of reasons. That is certainly one of them. It is not prohibited to have a relationship with the local, male or female. The way in which you conduct yourself needs to be in accordance with AFP values. With fraternisation, what we tend to encourage members is to be very aware of the ramifications of having a relationship with individuals. In some of these countries, those relationships may be used to compromise the officer. We go to great lengths to provide them with sufficient information and education on how to conduct themselves. The AFP also has a psychological or wellbeing service, a range of health care professionals to keep in touch with these offices to make sure that their physical and mental health is being monitored. If we see them going off the rails or if their behaviour changes, they are encouraged to speak to the psyches. Also, the members within their office are provided with a lot of information and they are encouraged to look after one another and to keep one another in check. If there are issues, they are to report it back through either psyche services or the Confidant Network of the AFP.

CHAIR: Returning to the issue of trafficking, are officers ever advised not to frequent certain places, certain bars, nightclubs and things?

Mr Zuccato : Absolutely, indeed.

CHAIR: I was looking at the answer to the question of whether there are any significant amounts of funding provided to host countries in the form of grants, contracts or through other arrangements. In the AFP Timor Leste Police Development Program example, at the end of the first paragraph it says:

Strict monitoring controls have been placed around the expenditure of this grant.

Looking at the other programs that have been given as examples, they do not have that statement at the end of them although some of them say that the financial distribution is in line with the AFP Commissioner's financial instructions. Is there a difference between the controls or are they saying the same thing?

Mr Zuccato : The controls would be more or less the same. All of our expenditure is done under the FMA, but then also all those funds are administered—whether they be IDG funding, LECP funding or MPI funding—through the AFP's PMO, using PRINCE2 methodology.

CHAIR: The PMO?

Mr Whowell : The project management office.

Senator PARRY: You have to stop talking in TLAs!

CHAIR: Is that based in Australia or based offshore?

Mr Zuccato : It is actually a team that the AFP has established as a result of some of the lessons learnt in prior years, to manage our programs in as accountable a fashion as we possibly can. That is a team of individuals who monitor the compilation of the project plans in relation to the expenditure of the funds.

CHAIR: And do they do that in Australia?

Mr Zuccato : It is a mix. We have administrative staff overseas in some areas that manage some of the big-ticket items. Certainly the people-smuggling MPIs in Indonesia and other MPIs in Indonesia are an example; they have specific folks allocated to manage those programs there.

CHAIR: So when the submission says that the distribution of finances are managed entirely by the project, you do not necessarily mean entirely by the project in that country? It could be managed from Australia as well within the project?

Mr Zuccato : That is right. Indeed, to more fully answer that question: there is a variety of different folks who have different responsibilities for the delivery of that project across the AFP.

CHAIR: So there is a number of people who could have access to that information and see what is happening to the project at any particular time?

Mr Zuccato : Yes, that is right.

CHAIR: There is not a concentration in the hands of just one or two people?

Mr Zuccato : No. The AFP not only has the project management office but a range of committees that oversee the expenditure of these types of funds, from the strategic investment committee to the finance committee. Also, in relation to the Law Enforcement Cooperation Program we have a committee, on which I sit, which oversees all of those programs. The chief financial officer also has a lot of visibility over the expenditure of the funding, the reason being that a lot of this money is tied funding. The requirements on us from government are quite significant as well.

CHAIR: Are there performance reviews of those projects, and public reporting anywhere on the results?

Cmdr Johnson : I am not so sure on that. I could not answer on the public reporting angle. I can certainly say that all the programs expended both on- and offshore in the AFP are subject to internal audit. The internal audit program is reasonably robust in terms of looking at the high-risk expenditures. I think that expenditure on such matters overseas would be considered that, so the audit committee would regularly see reports relating to expenditure out of the various functions that relate to that type of expenditure as well.

Mr Zuccato : That is right.

Mr Whowell : I think we would cover off on those programs in our annual report as well, in terms of reporting performance and things like that.

CHAIR: I note in the submission that you reported that there were a number of serious misconduct complaints in relation to the AFP's presence in the Solomon Islands—or more complaints there than anywhere else. You have said that it is reflective of the large AFP presence there and that there was a deployment of a professional standards investigator. Is that person still there?

Mr Zuccato : Yes.

CHAIR: Is that a permanent deployment now?

Mr Zuccato : Yes.

CHAIR: Does that position rotate? Or is it always the same person?

Cmdr Johnson : At this point it is for two years. Initially it was a 12-month posting and it has now been extended for another year. But that person forms part of the team that is managed from Australia.

CHAIR: I have just been given some information that there is a current ANAO audit of the AFP Fighting Terrorism at its Source initiative—are you aware of that one?

Mr Zuccato : That is right, yes.

Senator PARRY: You were talking about the overseas officers and the minimum number of complaints. After an international deployment is there any monitoring as to whether there is any increased activity—any form of corrupt behaviour or misbehaviour—by those officers when they return home?

Is there a higher incidence amongst those who have been deployed overseas upon their return or is it a statistic that has not been analysed?

Mr Zuccato : I do not know of any analysis that has been done with respect to that question.

Senator PARRY: Do you think it would be a fair thing to do? Considering the exposure risks overseas to a variety of potential sources of corrupt activity, or that a link could have been established overseas and not become evident until back in Australia, would it be fair to at least have it as a risk profile?

Cmdr Johnson : We would not miss an opportunity to look at something that would tell us something about potential corruption in the organisation. Whilst we may not do any specific work with just people who have come back from the international network, for example, the number of people in the organisation who churn through offshore postings is fairly significant. We have a program within professional standards that looks at other indicators, from an integrity assurance point of view, rather those directly as a result of complaints that might tell us something about misconduct or corruption. We are increasing the sophistication of that process as a go. It is an opportunity not only for people who come back from offshore but for people who are posted, for example, to the Northern Territory as part of the operation there or are deployed anywhere else that might give us a flag for one reason or another that we would continue to monitor.

Your point is a valid one and it is one we can certainly look at. We have some other processes in place as well that are part of trying to provide some assurance in terms of people's integrity. There have been a large number of people who have been offshore variously now for the AFP.

Mr Zuccato : On any given day, about 10 per cent of the AFP's workforce is overseas—around the 500 or 600 mark. That would be a significant exercise in terms of monitoring. In answer to your question, the best mechanism we have within the AFP is the culture within the AFP that would probably flesh out some of that stuff if it became apparent. I draw your attention to the confidant network that we have.

Senator PARRY: I am familiar with that.

Mr Zuccato : We do have a system, and I do not want to call it monitoring because that is a bit hooveristic, but there is a very strong culture of doing the right thing within the organisation. If folks were to see someone fraternising with someone back here, I do not think it would take very long for that to get back to us. Indeed, I had a member just last week who had a friend who started to see a known organised crime figure and that member actually rang and self-reported.

Senator PARRY: That is good. We are talking about very, very low levels of detection within the AFP in any event, but it is nice to know that that is a risk profile that you would analyse. There must be a greater degree of exposure to corrupt individuals outside of this country.

Mr Zuccato : That is definitely true.

Cmdr Johnson : To put it into context to provide further assurance, when you look at the statistics on complaints, the vast majority of our overseas complaints are internally created. It is part of the culture of reporting other's misconduct and the commissioner's requirement that people do that. The fact that people are prepared to put their hand up and point to the misconduct of others and/or, as you say, self-report when they discover they have potentially done the wrong thing and they want to provide some insurance for their own integrity, I think is quite a positive thing. We have another process that talks about integrity and security reporting, and often that line of reporting, while it does not necessarily lead to advise about an actual matter of misconduct, it sometimes provide us with flags which might warrant further attention. Sometimes that occurs overseas and it might require us to do a little more work. So there are a couple of other mechanisms that tell us things about the workforce that are working successfully.

Senator PARRY: Are controlled operations permitted to be conducted overseas? I would think probably not because the legislative framework would not extend there—is that right?

Mr Zuccato : That might be something that we could explore in camera if you would like to.

Senator PARRY: I am just answering my own question as I am thinking through it. I do not think the jurisdiction would extend, unless you had some arrangement with the governing country.

CHAIR: You could put in a confidential submission.

Senator PARRY: Yes, that would be great. The flow of the question from that, for consideration in a response to us, is how that is monitored and whether that has a heightened risk, which I assume it would have. Under reference 4, you provided a couple of paragraphs on page 12 of your submission which set out some basic issues. How do you go with jurisdictional issues if an AFP officer overseas is involved in corrupt activity or illegal activity with another agency—a non-Australian agency? How does that work? How does the management of that particular case work?

Mr Zuccato : There are two questions, as I take it. The legislation is extraterritorial, so it captures the individual. Our professional standards regime covers anybody in the AFP—also in the perspective of their personal life. If it was corruption with another police officer or a government official, the management of that would depend on the plan that we would come up with, depending on the jurisdiction that they are in. There is a difference between being in America and being in another country which may have a less robust framework, if you will.

Senator PARRY: For example, if you were in Timor-Leste and you were working alongside officers of their national police force and something of a corrupt or illegal nature takes place which would warrant certainly disciplinary action as a minimum from the AFP, how does that work when one is not an AFP officer? Do we sign a memorandum of understanding about how that works?

Cmdr Johnson : There is a different status for our people offshore. Part of the answer to that question is that, particularly in places where we are on international deployment group missions, and depending on the circumstances, it is quite reasonable and proper for my department and ACLEI particularly, who would be involved in it if it was a corruption matter, to have meetings with the local jurisdiction and make some decisions about how we might take it forward. One of the options might well be prosecution of the other party in country. We might well hold evidence that would help them run that prosecution.

Senator PARRY: That would include prosecution of the AFP officer as well?

Cmdr Johnson : Jurisdiction certainly exists to do exactly that—yes.

Mr Zuccato : Depending on the type of corrupt behaviour, they would either be prosecuted under criminal law in that particular country or they would be prosecuted back in the Australian jurisdiction. Ray raises a very good point in terms of ACLEI and our relationship with ACLEI. There is nothing that we do from a corruption perspective that does not involve ACLEI. I will say for the record that that relationship is extraordinarily strong. We work very well with ACLEI. That relationship is excellent.

Senator PARRY: Thank you. That is evident from other examinations of ACLEI and the AFP at a more senior level. In conclusion, I thank you for the submission. I do not know who put it together or how many people put it together, but it is very detailed and it gave us a lot of information, so thank you for that.

CHAIR: I too would like to echo those comments about the submission. It was very well done. In terms of what you were just saying about your engagement with ACLEI, I note that your submission mentioned some pre-deployment training that happened with a contingent going to the Solomon Islands. ACLEI was involved in that, as was the ombudsman. Is that a regular occurrence or will it become a regular occurrence for overseas deployments?

Cmdr Johnson : We have been doing more and more of it in recent times, involving ACLEI particularly but also the Ombudsman whenever we can. In fact, I travelled with the Executive Director of ACLEI and the director of the Ombudsman's office to the Solomon Islands last year to have a look at the circumstances there, and one of the outcomes was that ACLEI would spend a bit more time working with our people both prior to deployment and during the recruitment and training process so they would have more exposure to ACLEI and more of an understanding of their powers, responsibilities and what they can and cannot do with ACLEI. That was a useful outcome of that visit.

Mr Zuccato : From a serious and organised crime perspective, ACLEI become involved in a lot of our investigations. Because of the relationship we have with them, a lot of my guys are exposed to them on a very regular basis, and they are the men and women who are chosen to be deployed offshore. So, whilst there are no specific programs, the great working relationship we have with them, the approach that they have decided to take with us, means that our people are exposed to them very regularly now.

CHAIR: Finally, the AFP obviously has a role in investigating corruption in other Commonwealth agencies. Do you have anything to say about other Commonwealth agencies operating overseas where perhaps there needs to be more attention given to corruption risk?

Mr Zuccato : With respect to other Commonwealth agencies, the AFP has provided to those agencies that have identified some issues within their programs as much advice as we possibly can. In particular since the Securency matter, for example, there has been quite a deal of outreach by the AFP to other Commonwealth departments with respect to the lessons that we are learning from that and there has been increased engagement with the AFP by those agencies, who now report matters to us more frequently.

CHAIR: Which agencies are they?

Mr Zuccato : I do not know that I would be in a position to actually say that. If I could take that on notice I would be happy to.

CHAIR: Okay. So there are not any that jump out at you that you could, Immigration or—

Cmdr Johnson : I think actually in their public submission they made commentary about that.

Mr Zuccato : Immigration certainly did. I was actually thinking of some other agencies.

CHAIR: Quarantine, Customs—

Mr Zuccato : Some of the matters are ongoing.

CHAIR: Okay. I think we might leave that there.

Senator PARRY: Good try, though, Chair!

Mr Zuccato : You had me on the ropes for a minute there!

CHAIR: Are there any agencies where there does not seem to be an awareness that there needs to be some action taken in dealing with overseas corruption risk?

Mr Zuccato : I would not like to comment because, whilst I am aware of matters, I do not know what the regimes are within their organisations. We obviously operate on a case-by-case basis. The only thing I will say in relation to that is that, with the increase of, AusAID funding, for example, moving forward, it would behove and be very beneficial for all Commonwealth agencies to adopt a very robust framework within their organisations. But I do not know that I am qualified to answer that question.

CHAIR: Thank you. We do appreciate your time today. I want to thank all the AFP witnesses for giving their time. We may come back to you with further questions as our inquiry progresses. Thank you for coming today.

Mr Zuccato : Thank you very much for your time.