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Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity
11/07/2017
Annual report of the Integrity Commissioner 2015-16

FURRY, Mr Craig, Director Corporate Services/Chief Finance Officer, Australian Commission for Law Enforcement Integrity

GRIFFIN, Mr Michael, AM, Integrity Commissioner, Australian Commission for Law Enforcement Integrity

McKAY, Ms Penny, General Counsel, Australian Commission for Law Enforcement Integrity

Committee met at 08:59

CHAIR ( Senator McKenzie ): I declare open this public hearing of the Joint Committee on the Australian Commission for Law Enforcement Integrity, regarding its examination of the Australian Commission for Law Enforcement Integrity 2015-16 annual report, in accordance to section 215 of the Law Enforcement Integrity Commissioner Act 2006. The committee's proceedings today will follow the program as circulated. These are public proceedings being broadcast live via the web. I remind 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 parliament as a contempt. It is also a contempt to give false or misleading evidence to a committee. The committee prefers evidence to be given in public, but under the Senate resolutions witnesses have the right to request to be heard in confidence—described as being in camera. It is important the witnesses give notice if they intend to ask to give evidence in camera. If you intend to do so, please bring it to the attention of the secretariat as soon as possible.

I remind committee members and officers that the Senate has resolved that there are no areas in connection with expenditure of public funds where any person has the discretion to withhold details or explanations from the parliament or its committees unless the parliament has expressly provided otherwise. The Senate has also resolved that an officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer 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 particularly draw the attention of witnesses to an order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised.

   The extract read as follows—

Public interest immunity claims

That the Senate—

(a) notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate;

(b) reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate;

(c) orders that the following operate as an order of continuing effect:

(1) If:

   (a) a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and

   (b) an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee, the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.

(2) If, after receiving the officer’s statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.

(3) If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.

(4) A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.

(5) If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.

(6) A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.

(7) A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (1) or (4).

(8) If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3).

(d) requires the Procedure Committee to review the operation of this order and report to the Senate by 20 August 2009.

( 13 May 2009 J.1941 )

(Extract, Senate Standing Orders)

If a witness refuses to provide information, they are required to provide some specific indication of the harm to the public interest that could result from the disclosure of the information or the documents to the committee.

I welcome everyone here today for the examination of the annual report of the Australian Commission for Law Enforcement Integrity. Welcome, Mr Griffin. Did you have an opening statement?

Mr Griffin : Yes, if I may. Earlier this year, we discovered that some of the statistics published in 2015-16 annual report of the Integrity Commissioner were incorrect. Further to the detailed correspondence on this matter that I had sent to the committee last month, I would like to take this opportunity to again apologise for those errors. I take full responsibility for the publication of these incorrect statistics. I wish to assure the committee they were the result of human error, rather than any intent to mislead. Nonetheless, we have taken this matter very seriously within the agency. Similar to my efforts to keep this committee informed of our progress in identifying and remedying the errors, I have also engaged with the heads of the impacted agencies. As per parliament's process, the corrections will also be noted in ACLEI's upcoming 2016-17 annual report and will also be published on ACLEI's website.

I can assure the committee that we have put in place improved processes and procedures to ensure the accurate reporting of our statistics in future publications. Chair, the annual report under examination, ACLEI's 10th and my second as Integrity Commissioner, is an important document. The report highlighted a number of strategic management issues for ACLEI that I would like to mention here. The first to note is the extension of the jurisdiction in that year to include the entirety of the Department of Immigration and Border Protection. That development brought considerable resources. ACLEI gained 14 new staff in that year. But the extension was also accompanied by a substantial growth in workload.

While not all of that increased traffic translated in to investigations by ACLEI, some of it did. Accordingly, of the 144 investigations in progress during the year 2015-16, 61 related to the Department of Immigration and Border Protection, which is up from 37 the previous year, when it was only the Customs aspect of the department that were in jurisdiction. Part of that rise is attributable to new investigations related to assuring the integrity of the visa system. Noting the risks associated with mounting pressure on Australia's border controls, this issue will continue to be a significant strategic focus for both ACLEI and the department over the next two years.

ACLEI also had 11 investigations in the reporting year into biosecurity officers of the Department of Agricultural and Water Resources. Our investigations there are revealing that corruption in the biosecurity stream is one of the methods that both legitimate and illegitimate businesses may be using to try to subvert border and law enforcement controls. That picture is still unfolding, and it is one that both ACLEI and the department are watching carefully. I note that this committee is also interested in that topic, and we might be able to explore that issue further next month in the context of your inquiry into the integrity of Australia's border security.

The other issue I wish to highlight is the strategic repositioning that commenced in 2015-16, whereby ACLEI is taking a more proactive posture. An example of this, as detailed in the annual report, is our use of human source intelligence. This entails the recruitment of witnesses who may be able to inform our understanding of practices in higher risk areas of agencies, particularly their susceptibility to criminality. This method gives us an additional tool to use in decision making about what cases we should pursue and how best to investigate. It is also a model that is a better fit for our environment.

ACLEI needs to be able to give the highest level of security to potential witnesses so as to ensure their safety and gain their confidence. Without that protective framework, it would be very difficult to give proper assurances that would encourage whistleblowers and other informants to come forward. While our capability remains modest at present, it is already adding significant value and is one area that I would like to expand. The pivot to a more proactive ACLEI in 2015-16 also laid the foundations for the operationalisation of our corruption prevention practice, and that continues to provide valuable insights for the agencies. I might conclude by acknowledging the dedicated, hardworking and innovative staff of ACLEI, whose efforts are summarised in the report. Thank you.

CHAIR: Thank you very much, Mr Griffin. We will now proceed to questions.

Mr ZAPPIA: Mr Griffin, thank you for your opening statement. I will start by referring to page four of your report, the page that is titled 'Reporting corruption', and in particular the paragraph which states:

ACLEI endeavours to be sensitive and helpful to people who refer concerns to the Integrity Commissioner.

And it then goes on to make other comments. Could you explain in layman's terms what is meant by that paragraph, given that the last sentence within it says, 'Rather, the Integrity Commissioner seeks to ensure that all corruption issues are properly addressed'? Given that complaint-handling is not seen to be one of your roles, how do you properly address corruption issues?

Mr Griffin : I am sorry, but could you just direct me again to the page? You said page 4.

Mr ZAPPIA: It is at the very start of your report. If I start at the cover of the report—

CHAIR: It might be page 4 in our briefing papers—roman numerals IV.

Mr ZAPPIA: It is after the letter to the minister in which you present the report.

Mr Griffin : Yes, I beg your pardon. I see. As I understand your question, it is to differentiate between complaint-handling and corruption issues.

Mr ZAPPIA: Yes. I am trying to get an understanding of how you handle matters that are brought to your attention, given that you say:

However, ACLEI does not have a complaint handling role, and its investigations are not oriented to achieving remedies or personal resolutions for individuals. Rather, the Integrity Commissioner seeks to ensure that all corruption issues are properly addressed.

I am trying to clarify just what your role is or at least how you see your role to be?

Mr Griffin : I understand and I appreciate the point you are making. The act sets us up as a corruption prevention agency. I think you would be aware that, as of 8 June this year, we have received 222 matters through our hotline or our email from members of the public who are concerned about issues. We evaluate each and every one of those, even if it is a telephone message left on the voicemail. We have a section of the agency that is dedicated to evaluating those issues. Many of them will fall in the term 'complaints' because they don't come under the definition of 'law enforcement agency' and they may relate to another government agency. We respond to those individuals if they have left any form of contact and, if it is an anonymous email, we will respond to that email via that email directing them, hopefully, in the right direction to deal with their issue. If it falls within the jurisdiction then we move to the next phase of our process, which is the assessment and preliminary intelligence review. So there will be complaints, per se, and then there will be corruption issues that we will deal with. We respond to both, depending on whether or not they fall within jurisdiction. Does that answer your question?

Mr ZAPPIA: It helps, but I am still not absolutely clear. I may use an example. If someone contacts the commission and says, 'In one of the departments for which you have some oversight for, I am concerned about a particular activity that I have become aware of,' would you, in turn, then, follow that up with your own inquiries and investigations or would you simply refer it to the agency head of the department?

Mr Griffin : It would entirely depend on that first evaluation phase as to the nature of the behaviour. And because we cover integrity, it may be that it falls within the definition of 'corruption of any other kind'. So we will do that analysis before we send it anywhere else.

Mr ZAPPIA: Of the matters that were referred to the commission in the last year or so, did most of them come directly to the commission or did the commission itself initiate its own investigations or inquiries as a result of other information perhaps from another source dealing with an entirely different matter?

Mr Griffin : We received for this reporting year a total of 185 new matters. Of those, about 40 came from other ways, other referrals, not from the agencies. We also did our own motion investigation of six matters where we had decided, 'That's interesting,' or 'That raises a flag,' that were in the community in some other way. We initiated our own on six investigations.

Mr ZAPPIA: Are you satisfied that the agencies or the government departments that you now have some oversight now have integrity measures in place that leave you confident that they will be able to ensure that corruption should not arise within those departments?

Mr Griffin : I think it is fair to say that they are at different stages of maturity across the five agencies currently within jurisdiction. For example, the Australian Federal Police have had their own internal corruption prevention system and professional standards branch for over 20 years, and their systems continually evolve. I would say that they are the best example of a good internal system. Other agencies are coming along and maturing in that regard. So we have a mixture across the board. There is a spectrum of them, if you like. The AFP represents one end and other agencies are closer to the other end of that spectrum.

Mr ZAPPIA: Just returning to your report and your opening statement, you made some comments about the statistical errors. You pretty much said that it was just human error. Can you elaborate on what you mean by 'human error' and give the committee a better understanding of how those mistakes occurred?

Mr Griffin : Yes. In this technologically advanced stage, this may seem a little surprising but it comes down simply to an officer sitting in front of a spreadsheet, in which there were different columns attributing the number of cases to various agencies within those columns. Rather than the whole number, it was those individual calculations that then led to the error. Plus, at that point in time, there were some five files that were in different people's hands around the agency at close to the cut-off period that weren't caught in the 30 June sweep. That was realised later as those five files were brought in. So the difference was five but, in the internal columns on that spreadsheet, there were some other changes. It didn't affect the total figure; just the number for three agencies and the five files that were actually out on other people's desks, regrettably, for which I apologise again.

Mr ZAPPIA: I have just one other question and then I will hand back to the chair. Given the expanded jurisdiction of your office, when I was reading through your report, I formed the view that you still hadn't had your full staff complement. Have you now recruited all the officers which you wish to recruit?

Mr Griffin : Because we are a small agency, we have the ebbs and flows of people leaving and joining. We are almost at the full picture. We did get 12 of the 14 new positions filled. We have an approved cap of 50 under the funding and we have gotten to 48 but then we had some movement amongst those people as well. It is just a natural—

Mr ZAPPIA: Sure. The reason I ask the question is simply to ascertain whether it is difficult for you to recruit the right staff. Or has it simply been a time issue where you are working through your needs one step at a time?

Mr Griffin : It is difficult. The right sort of skillset and the right fit—to use a term that covers things such as performance history and security issues—and getting the right people is not easy and it has taken some considerable time to do that.

Mr ZAPPIA: Thank you.

Mr ROBERT: In terms of human error for reporting, I think we all appreciate that they always sneak in. However, at your level, it is always pretty serious because you're the guys who check the checkers. What are you putting in place to make sure that that doesn't happen again and that parliament can have absolute assurance in your numbers?

Mr Griffin : We have instituted a cross-checking with each of the agencies. We now do a tally—for example, how many Federal Police matters we have received, and then we go to the Federal Police, the relevant component division, and ask them whether that matches their figures, so that we and they will now agree on the figure before it is reported to the parliament.

Mr ROBERT: The agencies you are reporting on, did they bring the error to your attention? Did your internal audit find out about the errors? How did you come to the conclusions that you make in your report?

Mr Griffin : It was an internal check, but it was done, unfortunately, after the figures had gone out rather than before. We identified it ourselves and owned it as soon as we were aware of it.

Mr ROBERT: How long had the report been out there before you identified the problem?

Mr Griffin : We published the report in October, and I believe we identified the problem in February.

Mr ROBERT: Is it fair to say that the report had been out there for five months and the agencies upon which you had reported did not, in that time, advise you that there were problems?

Mr Griffin : That's correct. We notified them in April of this year.

Mr ROBERT: Do you find that troubling? Because I do. You're reporting on quite substantial issues—I am just going through them now—of referrals and of referrals from other sources. There are some real differences in numbers. For example, AFP notifications from 28 down to 18 and corruption issues in the AFP from 52 to 32. Does it concern you that the agencies you are reporting on didn't bother to check your report and didn't actually say, 'Hey, the numbers are wrong'?

Mr Griffin : I understand the point that you are making on your first analysis of the figures, but what I haven't mentioned to you is that we have monthly meetings with them. They would be across the issues, but perhaps not the numbers. In terms of their total numbers, a lot of these things aren't really significant and we have referred them back to them. They are aware of the matters; the absolute number hasn't really become an issue for them.

CHAIR: Mr Griffin, I think Mr Robert's question was also: aren't you concerned that the agencies you are reporting on haven't read your annual report?

Mr ROBERT: I was trying to be polite, Chair.

CHAIR: Yes. Sorry, I'm cutting to the chase because we've got him for another five minutes.

Mr Griffin : I don't know that they haven't read it, I'm just not sure about their internal communication over the point.

CHAIR: That is a diplomatic answer. Well done.

Mr Griffin : But they certainly are aware of it now, because we have drawn it to their attention.

CHAIR: I have a couple of questions and I know that Senator Watt has some questions. I am going to put a range of questions on notice around the conduct of investigations and the governance risks involved with the expanding workforce, which you have briefly touched on. Also some questions looking at the efficiency of case handling being introduced by agreements with agency heads under section 17 of the LEIC Act, looking at how those agreements may operate and that you are satisfied that the agreements do not undermine your ability to monitor corruption matters within agencies. I would be interested in your perspective on that. Did you briefly want to make a comment?

Mr Griffin : We had lengthy engagement with the AFP about the first section 17 agreement that we have reached with an agency. Coming up with a definition or a cut-off point is a relatively complex exercise, because whilst we want to repose some discretion in the agency, we want to ensure that matters of significance come to us. So we have settled on a method and will review that over the coming year, but if you are happy, we will prepare some statistics for you on notice as to what has happened since it has been in place.

CHAIR: Are you comfortable that the current definition allows you the oversight you require of that particular agency with respect to integrity matters?

Mr Griffin : At the moment, yes. I would like to review the position after it has been in place for two years to be satisfied before I can give you that definitive confidence.

CHAIR: I suspect some commentary about culture within organisations would surround that as well. I was looking at part 1 of your report, where you're reporting on your delivery against strategic priorities. This is like a 101 question and I do apologise. Some aspects and priorities have been completed, progress has been made on others and others are on track. Does on track mean you've started or are halfway through completion? Could you, a little more quantitatively, update me on what those particular status words mean against the difference on priorities. What is the difference between 'progress made' and 'on track', for instance? It is on page 8.

Mr Griffin : Yes, I am looking at that.

CHAIR: Maybe on notice you could flesh that out a little more, because to me you may have put it on an agenda of a committee meeting and that constitutes being on track or progress being made. I want a slightly more detailed understanding on what that means. I am assume you have a reconciliation plan.

Mr Furry : Yes, we do.

CHAIR: I read last night that you did. What percentage of Indigenous employees does ACLEI have?

Mr Furry : We currently have no employees that identify as Indigenous.

CHAIR: What is your target?

Mr Furry : One.

CHAIR: I will check at our next meeting how you're going. Do you have a plan to achieve that target?

Mr Furry : Yes, we do.

CHAIR: What does that involve?

Mr Furry : As you know, in a small agency it is quite difficult to achieve an Indigenous recruitment target. Being an agency that isn't necessarily attractive to Indigenous peoples who want to make a direct contribution to the Indigenous community, we don't tend to get a lot of applications.

CHAIR: But what are you doing?

Mr Furry : At the moment we are trying to engage with other agencies that have programs in place to identify placements for people who for instance might be participating in Indigenous graduate programs, so we're talking to the portfolio department. As I say, we do find it difficult. Our main focus over the last 18 months has been on the Indigenous Procurement Policy, where we had quite a lot of success.

CHAIR: If on notice you could flesh that out for me, that would be great.

Senator WATT: I have a couple of questions that pick up on the same section of the report Senator McKenzie was just dealing with: delivery of strategic priorities. One that I noted is: to perform statutory duties and responsibilities effectively, efficiently and responsibly. I have a couple of questions concerning your statutory powers. I want to be very careful here not to ask about any investigations you may or may not have under way; I am more interested in what your powers are and how you are exercising them. Is it correct that you do have statutory power to, for instance, investigate an officer of one of the agencies that you have coverage of if an allegation is made that that officer has, in some way, favoured a personal friend or a contact? Is it correct that you have power to investigate those types of allegations?

Mr Griffin : The type of allegation you have just described would most likely fall under that part of the definition of 'corrupt conduction' which is my jurisdiction, which is described as corruption of any other kind, having regard to the duties of and powers of that particular individual. It is sometimes used under the description or the term 'nepotism', so, yes, it could fall within the sort of matter that I would look at and investigate.

Senator WATT: And similarly, am I correct that you do have statutory power to investigate an allegation that a contact or friend or relation of an officer has been appointed to a position and that that person who was appointed may have gained some benefit from that appointment? Would that be something that you could investigate?

Mr Griffin : That's correct.

Senator WATT: I couldn't find this in your report, but do you have any figures as to the number of those types of investigations that you have under way at the moment? Feel free to take that on notice if you don't have it readily to hand. I have just got one other question after that.

Mr Griffin : In the reporting period that this report covers, there were two matters of that nature.

Senator WATT: Have they both been completed?

Mr Griffin : Yes, they have.

Senator WATT: I might get you to take on notice what action was taken as a result of those investigations.

Mr Griffin : I can tell you, in both matters, we, having considered the evidence, came to the finding that there was no corrupt conduct.

Senator WATT: The only other question, again, gets back to your powers. We have clarified that you do have powers to investigate those types of allegations which are made against an officer of a department or an employee of a department, but am I also correct that you don't have the power to investigate those types of allegations if they are made against a minister? So if it is alleged a minister has appointed a friend who has gained a benefit, do you have power to investigate that types of allegations against ministers?

Mr Griffin : That is correct.

Senator WATT: Concerning the departments and agencies that you are responsible for, what would be the agency that would have the power to investigate those types of allegations made against a minister?

Mr Griffin : It would depend on the facts. But, for example, if there had been some deception or dishonesty against the Crown or against the Commonwealth that obtained a benefit for an individual then that could be a matter that the fraud and anti-corruption component of the Australian Federal Police could investigate.

Senator WATT: So it would have to fit a particular definition to invoke the AFP's powers?

Mr Griffin : That is correct.

Senator WATT: Thank you.

CHAIR: Thank you, Senator. Thank you members. Mr Zappia, you might like to move a motion for members of the committee to determine a deadline for determining questions taken on notice during today's proceedings by 9 August. Would that be doable?

Mr ZAPPIA: Yes. I move that way.

CHAIR: Excellent, thank you. Members and senators, given the shortness of this public hearing, if you have any questions on notice you would like to put to the commissioner, please have them to the secretariat by close of business today. That concludes today's proceedings. The committee has agreed to take questions on notice to be received by 9 August. I thank all witnesses for their evidence to the committee today. I now declare the hearing adjourned.

Committee adjourned at 09:34