Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity
16/03/2012
Integrity of overseas Commonwealth law enforcement operations

GOMES, Ms Marie, Assistant Director Strategic Support, Australian Commission for Law Enforcement Integrity

HAYWARD, Mr Stephen, Executive Director, Australian Commission for Law Enforcement Integrity

MOSS, Mr Philip, Integrity Commissioner, Australian Commission for Law Enforcement Integrity

SELLARS, Mr Nicholas, Director Strategic Support, Australian Commission for Law Enforcement Integrity

Committee met at 11:01

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 you all here today. 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 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 requests may of course also be made any other time.

I remind committee members that the Senate has resolved that an officer of a department of the Commonwealth or a state 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. Officers of departments are also reminded that any claim that it would be contrary to the public interest to answer a question must be made by a minister and should be accompanied by a statement setting out the basis for the claim.

On behalf of the committee I thank all those who have made submissions and sent representatives here today for their cooperation in this inquiry. I welcome representatives from the Australian Commission for Law Enforcement Integrity. You have lodged a public submission with the committee, which we have numbered submission No. 1. Would you like to make any amendments or additions to that submission?

Mr Moss : No, thank you.

CHAIR: Would you like to make a brief opening statement?

Mr Moss : Yes. The terms of reference for this inquiry invite three questions of interest to ACLEI. First, what are the corruption risks arising from Australia's overseas law enforcement operations and how are they different from risks that may arise in a domestic context? Second, what is the potential harm to Australia of these risks? Third, how may ACLEI and law enforcement agencies best work together to address any significant corruption risks?

Law enforcement agencies are functioning in a changing global landscape. Rapid advances in technology and communications are changing both how crime operates, and how law enforcement responds. The ever faster movement of information, goods, services and people presents new business opportunities not only for legitimate enterprises but also for illegitimate or criminal interests. ACLEI's submission to this inquiry describes how Australia's robust economy has made our country a more profitable and attractive market for organised criminal syndicates. In such a landscape, no country alone can combat transnational crime and corruption. Law enforcement agencies have to work closely with their counterparts in other countries to achieve common objectives. For instance, Australian law enforcement and border protection officials are increasingly dependent on information or intelligence which has been sourced overseas. The AFP and Customs and Border Protection are among a number of Australian government agencies with law enforcement or regulatory functions that deploy staff members to other countries or engage staff locally to assist with, for example, capacity building, intelligence gathering, building networks or conducting core business activities. These staff are the visible representatives of the Australian government, and Australian citizens should rightly expect that they conduct themselves with integrity.

It is in this context that I bring us back to ACLEI's strategic focus. When a corruption issue arises in an agency in my jurisdiction, whether it arises in Australia or in another country, ACLEI's strategic concern is with the potential harm to legitimate law enforcement outcomes. With respect to overseas deployments, ACLEI's interest is in what corruption risk to law enforcement outcomes may manifest overseas and might be imported back into Australia. In the changing landscape I described earlier, potential corrupters will look for entrees to Australian agencies. Bribery, subornation and other forms of compromise of officials working or even holidaying overseas are corruption methods that may be used to achieve this aim.

ACLEI's submission lists some of the commodities that organised crime groups may seek to acquire from law enforcement agencies. These are: information about law enforcement methodologies or systems so that they may be circumvented; contacts for possible collaborators in Australia; active assistance with moving illicit or border controlled goods into Australia; influencing or manipulating intelligence collection and dissemination, for example, to deflect attention from an illicit importation. While these types of risks tend to engage ACLEI's interest primarily, other forms of corruption risk are possible, for instance, 'trading in influence', whereby official decisions or services could be corruptly bought or sold. However, there is little opportunity for this form of corruption to occur in relation to the roles and functions of LEIC Act agencies. Accordingly, I have not addressed this risk in my submission.

Corrupt conduct can occur in other contexts too—bribery of foreign officials, for instance—which can occur in ways that are unrelated to the law enforcement functions of the deployment. In the main, such matters are not my strategic concern, and to deal with them is probably some distance from the policy objective for which ACLEI was set up. As I have noted on previous occasions, I regard ACLEI as being part of the law enforcement integrity framework, and is not itself the totality of the framework. That is, there is a shared responsibility with LEIC Act agencies for ensuring integrity arrangements are both proportionate and effective.

I think that the inquiry might usefully consider corruption risks that may arise as the result of formation of subcultures, for instance—say, in the context of a developing country, where power imbalance is an issue—agencies need to guard against the risk of cover up relating to the investigation of misconduct allegations. These are sensitive topics but it is important to Australia's reputation abroad that our agencies respond appropriately and transparently to such allegations. I have no particular instance in mind, but I wish to record that I would regard as most serious any indication that investigations of this type are not cooperated with in full.

There are, of course, positive aspects to subcultures, but we must be alert to their potential downsides and the harm that may be caused. In each of our annual reports I set out ACLEI's activities each year in the international arena. My interest in international engagement is for ACLEI to be familiar with the activities and overseas operating context of LEIC Act agencies and to build relationships with ACLEI's counterpart agencies in those jurisdictions. Also, since corruption risk can be thought of as an overlay to the activities of organised crime, ACLEI has an interest in contributing to Australia's activities that strengthen resistance to corruption in other countries which may, for example, also be used as potential routes for the importation into Australia of illicit goods. Accordingly, in partnership with the AFP, at various times I and several ACLEI investigations staff have conducted familiarisation visits to AFP deployments in the Solomon Islands. I have also visited the deployment in East Timor. These visits serve to raise awareness of integrity issues and how to report an issue to me. More importantly, if a corruption issue were to arise in one of those countries, ACLEI would be prepared with a prior understanding of the deployment parameters and operating environment. In addition, as resources allow, I take opportunities for ACLEI to engage with and provide support to the anticorruption agencies in those countries, particularly East Timor, Indonesia and Papua New Guinea. ACLEI's submission describes the types of support and contact with those agencies.

The LEIC Act and other legislation creates a satisfactory framework for aspects of ACLEI investigations to take place in other countries. ACLEI has investigated one matter which related to Australian officials deployed overseas. For this investigation it was possible to conduct relevant inquiries within Australia without detriment to the quality of the investigation. In that instance I disseminated certain information to the AFP which was the basis for a discussion about corruption risks relating to overseas deployments. The AFP readily took into account information relating to this scenario in strengthening integrity arrangements for overseas deployments, building on the strong framework then already in place. Through the Community of Practice for Corruption Prevention, which comprises ACLEI, the Australian Crime Commission, the Australian Federal Police and Australian Customs and Border Protection Service representatives, these types of risk based discussions continue. In addition, at the invitation of the AFP, ACLEI continues to provide integrity training as part of the AFP's pre-deployment process. Thank you, Chair. I would be glad now to answer questions.

CHAIR: Thank you, Mr Moss. I would like to clarify something that was in ACLEI's submission in relation to lower level risk and a discussion about bribes and facilitation payments for personal purposes where you say that, while they may involve corrupt conduct, they do not themselves pose a systemic risk to law enforcement operations. I know that examples that have occurred involving Australian officials have not involved law enforcement officials. I am thinking of the Australian Wheat Board and the Reserve Bank Securency issues and note that kind of corruption causes enormous reputational damage to Australia. I am wondering if that is something that you recognise but you just think it is not particularly relevant for ACLEI's work.

Mr Moss : Those that I had in mind are not the kind of activity that you were talking about at that level but other conduct involving only an individual or a small group of individuals, rather than having some systemic context. I think there is a whole range of activity from misconduct through to corrupt conduct which would encompass that idea. So I was thinking particularly of more one-off, lower-level instances of misconduct. You know, as I say, that corrupt conduct is often preceded by misconduct by an individual or in a group of individuals.

CHAIR: I note that there is a significant amount of funding for the AFP to donate equipment and to fund projects overseas. So it would seem to me that there would be potential for corruption in those activities and, with regard to Customs officials in overseas locations, for facilitation payments and so forth.

Mr Moss : There is no question about that. The response that I think we are looking for in those agencies is an acceptance that there is a corruption risk and to be prepared to become fully familiar with the risk and to be prepared to mitigate it appropriately. There is a tendency always to underestimate the corruption risk and overestimate the mitigation. I think that general approach of accepting the risk is very important. I draw attention to the submission made to this inquiry by the Department of Immigration and Citizenship. I thought that their treatment of the corruption risk that arises when officials are posted overseas or conduct official business overseas was very appropriate and well considered.

CHAIR: What did your in-country inspections of AFP operations in East Timor and the Solomon Islands reveal and are you planning similar kinds of inspections for Customs operations?

Mr Moss : At this stage there is no plan to engage in visits of overseas sites where Customs and Border Protection Service staff are deployed. The purpose of the visits to the Solomon Islands and East Timor was to familiarise ourselves with the environment in which AFP staff were deployed. That was so that, if there were an instance where a corruption risk was notified to me or referred to me, I would have some thorough understanding of the context in which such a matter was brought forward and that would assist me in deciding how I should deal with that corruption issue: for instance, whether ACLEI would deal with it itself or whether it should be dealt with by way of joint investigation or whether it would be a matter to be referred to the AFP for investigation itself. Also, similarly in terms of the Solomon Islands, I have arranged for a number of my staff to visit the Solomon Islands with the assistance of the AFP, who arrange these visits in all but one instance. That enables us to become aware of the issues faced by AFP members in a deployed context and the arrangements in place to deal with those corruption risks.

CHAIR: Thank you, Mr Moss.

Senator SINGH: Mr Moss, how many overseas corruption incidents has ACLEI been notified of and investigated so far?

Mr Moss : There are six matters involving matters notified or referred to me under the LEIC Act involving law enforcement officers posted overseas or where there is an overseas dimension to a corruption issue. There is another instance where an external territory of Australia is involved as well. So in sum total I think we are looking at a number of about six plus one.

Senator SINGH: And is that since ACLEI's inception?

Mr Moss : Yes, it is.

Senator SINGH: And so it is spread out over that time?

Mr Moss : Yes.

Senator SINGH: On that current number, do you think ACLEI has sufficient skills and resources to fully investigate overseas corruption incidents?

Mr Moss : I believe it does. The framework provided by the LEIC Act gives countenance to a situation where there is a corruption issue in an overseas context and provides, at various sections, recognition of that possibility and indeed provides for the Integrity Commissioner to exercise his or her powers in that context. Some of the provisions are qualified by the requirement for arrangements to be made between Australia and another country, but certainly the basis is there for the Integrity Commissioner to exercise the appropriate powers that the integrity commissioner has in relation to investigations. You would know though that the majority of corruption issues which are notified or referred to me are, in fact, on my decision referred to the agencies for investigation themselves and then they provide to me, under section 66 of the LEIC Act, a report on an investigation and I then assess that report as to its comprehensiveness and suitability and whether the outcomes are appropriate. That has been the experience in relation to the corruption issues that I have been notified of or had referred to me in relation to overseas law enforcement deployments, which I should say are, in fact, AFP deployments as there are none other in any other context.

Senator SINGH: Thank you.

Mr ZAPPIA: Mr Moss, where there is a joint law enforcement operation between Australia and another country, is ACLEI notified that the operation is underway?

Mr Moss : No. It is only in the case where a corruption issue arises in the context of that operation.

Mr ZAPPIA: You are not pre-warned that Australia is entering into a joint operation with another country?

Mr Moss : Certainly not.

Mr ZAPPIA: Does ACLEI have any formal agreements or memorandums of understanding with similar organisations in other countries?

Mr Moss : Yes, ACLEI does. ACLEI has signed an MOU with the Indonesian KPK, which is the Indonesian anti-corruption commission. That is a tripartite MOU with, from the Australian end, the Attorney-General's Department, the Australian Public Service Commission, ACLEI and the Indonesian anti-corruption commission.

Mr ZAPPIA: I would imagine that where we have those agreements in place there would be a process or procedure available to you to investigate something that is brought to your attention. What would be the situation where we do not have an agreement in place?

Mr Moss : In fact the MOU with Indonesia is the only one that exists in terms of ACLEI. In the situation where there is no such agreement, I would be reliant on a person coming forward to provide the information to me—that is, by referral under the LEIC Act, or for the head of a law enforcement agency to notify me of a corruption issue. In that sense, I would have little capacity to detect or be aware of a corruption issue that had arisen in an overseas context.

Mr ZAPPIA: But if you were notified or some material was brought to your attention, how would you then undertake a process in a third or second country?

Mr Moss : As you know, the Integrity Commissioner decides how each corruption issue will be dealt with, and one of the options available to me would include my establishing a joint investigation with any agency, and that would include an overseas agency. As a second option, and most likely in this context, I could refer the matter to another agency to investigate. So it could be joint or a referral to another agency. But the most realistic scenario for me would be to ask the AFP to use its overseas network, which is extensive, to assist me in dealing with a corruption issue in an overseas country. So I could be in a joint investigation with the AFP in that context, I could be in a joint investigation with an overseas integrity agency or I could refer to the agency concerned for it to conduct an investigation and report to me.

There is a particular provision whereby I refer a matter to another agency. I can decide to do that in one of three ways: the first is to manage the investigation—that is, to give detailed guidance about how I require the investigation to be conducted; I can oversee the investigation by seeking to give general guidance to the agency; or, I can refer where I require neither management nor oversight of that investigation. But in each case a report comes back to me and I then examine that report for its adequacy.

Mr ZAPPIA: Thank you.

Mr MATHESON: To what extent does ACLEI contribute to the pre-deployment briefings of officers being posted or deployed overseas?

Mr Moss : ACLEI has had an arrangement with the AFP for some time now to be part of the training for AFP members. In particular, in the past we have focused on lateral transfers, where members of police services or forces in the Australian states and the Northern Territory transfer into the AFP. That is one area that ACLEI have put a lot of effort into, and in the past we have had occasion to address those courses. More recently, we have also had the opportunity, often in combination with Professional Standards of AFP, to address pre-deployment courses and training for overseas deployments of AFP members. In fact, this week Mr Hayward, the Executive Director, addressed a deployment that is headed for Afghanistan. That is now part and parcel of our arrangement with the AFP. It serves to increase awareness of members who are about to be deployed of the ACLEI arrangements and the requirements upon them to act with integrity at all times during their deployment overseas.

CHAIR: Are there any legislative or administrative impediments to ACLEI being able to fully investigate overseas corruption incidents? We have talked about resources already, but I am talking about other kinds of impediments.

Mr Moss : I do not believe there are. I think that it is all there, in potential, in the legislation, but let me just ask my colleagues. The answer is no, Chair.

Mr Sellars : I note that the Attorney-General's Department is coming up a little bit after us. Through the International Crime Cooperation Division in the department there are arrangements in place—for instance, through the mutual legal assistance process—whereby any Australian agency such as ACLEI or a state police force can obtain cooperation from other countries. So there is a well-established framework and administrative process for those arrangements to be made. That may be a good follow-up question for the department.

CHAIR: Do you believe that agencies under ACLEI's jurisdiction have sufficient intent and resources to ensure the integrity of their overseas operations?

Mr Moss : I think there is a range of capability within the agencies I oversee. Without being specific, we are working with those agencies to enhance their ability to deal with the corruption risks that their staff would be faced with when working overseas. When we talk about the overseas context I would also draw attention to the fact that it is not just a question of those posted overseas nor is it a question of those who work overseas during short visits; it is a question of staff of those agencies who holiday overseas. All those aspects are relevant and some of those aspects are addressed better than others. I think the last aspect is one that should be given greater attention.

CHAIR: Could you give us an example about the holidaying aspect?

Mr Moss : I am speaking from an example, but I do not wish to go into detail in the present context. Suffice to say that there are different understandings among the various agencies about whether you are on duty all the time, whether you are in recreation mode or duty mode. Again, I would draw attention to the description in the submission by the Department of Immigration and Citizenship, because that deals with it very well.

CHAIR: Turning to the DIAC submission, is that an approach that could be further developed within the law enforcement agencies?

Mr Moss : I believe so. I have talked about a range of capability there—I think that it would be. I particularly liked the presentation in DIAC's submission, where it talked about anchoring back to the APS values and code of conduct at all times, despite the cultural context or current practice that a deployed person or a person working overseas would encounter. I thought that was very useful.

CHAIR: Could ACLEI be involved in developing those approaches and will it?

Mr Moss : Yes. I have certainly taken note of that submission and will be seeking to see whether it could be applied more generally in our work. I also draw attention to part of my written submission and to my opening statement as they relate to the community of practice. The community of practice is an initiative between ACLEI and the agencies for which it has responsibility. As I said just a while ago, risk based discussions continue in that context. That would be an opportunity for us to feed in the thought that is coming out of the DIAC submission.

Mr ZAPPIA: I have one question. I do not know whether it can be answered, but I will ask it. With respect to the agreement with Indonesia and border protection more broadly, has ACLEI been involved in any investigations relating to issues that could loosely be associated with border protection?

Mr Moss : In the context of the MOU with Indonesia?

Mr ZAPPIA: Yes.

Mr Moss : No, it has not.

Mr Sellars : The purpose of the MOU with the KPK in Indonesia is to facilitate relations, for instance, in areas such as technical assistance, training and those sorts of things. It is not specifically directed to mutual legal assistance or assistance in investigations although, of course, to have a relationship with another agency is a precursor to making those sorts of arrangements.

Senator SINGH: You mention in your submission that you have visited East Timor and Solomon Islands and provided assistance to AFP operations there. I presume that includes integrity training. What does that involve?

Mr Moss : I had the opportunity to address a muster of AFP staff deployed in both East Timor and Solomon Islands, and that was an opportunity for me to talk about the role of ACLEI in a very direct way with those who were currently deployed. It was no more than that. The contribution in terms of training and resistance to corruption is, as I said, done in conjunction with professional standards. The focus is more on this end in the pre-deployment context rather than on an in-country training situation.

Senator SINGH: So there is no integrity training done in the overseas countries. It is done prior to deployment.

Mr Moss : In terms of the AFP's deployment to Solomon Islands, there is a member of the AFP's professional standards as part of that deployment. So there is a person on the ground who has a direct interest in conduct and corruption issues, and is on the spot to respond to and deal with them, and also, through the manager PRS, a contact person for ACLEI.

Senator SINGH: If they wanted subsequent integrity training whilst deployed, could that be done through this particular professional person?

Mr Moss : It could be. I am also reminded by Mr Hayward that during a visit that he made to Solomon Islands he did engage in providing direct training to those on deployment. I will ask him to speak about that now.

Mr Hayward : The AFP professional standards area did deliver an 'integrity gym', which is part of their integrity training program, to the deployed staff in the Solomons when I was present. That is a program that they deliver both onshore and offshore. We were able to participate in that program and re-emphasise the corruption risks at that stage.

Mr MATHESON: Is ACLEI aware of locally engaged overseas staff in some agencies and the higher rate of corruption allegations and incidents involving locally engaged staff? I know you touched on it in relation to DIAC's submission. Are there concerns in any other agencies with locally engaged staff? Is anything being done to combat that?

Mr Hayward : I suppose the same risks that Immigration raise in their submission would apply to any government agency where there are locally engaged staff. They bring different cultures and different controls into those environments, but it is not something that we have turned our minds particularly to.

Mr Moss : To address your question directly, ACLEI and I are not aware of the extent of the use of locally engaged staff by AFP or the Australian Crime Commission, if any, overseas. Of course, we are aware that Customs has such staff, but we are not aware to any extent of the existence of that situation in regard to the other two agencies. But we will now inform ourselves.

Mr MATHESON: Thank you.

CHAIR: You would be aware of Transparency International and the annual corruption perceptions index, ranking countries according to perceived levels of public sector corruption. Is that something that ACLEI has regard to and advises the agencies under your jurisdiction about that, or are you aware that they themselves are having regard to TI's work?

Mr Moss : I am in regular contact with Transparency International and they are very good at reminding me and everyone else they meet about their perspective, and indeed the corruption risk indicators. It is one of the factors that I am certainly aware of and would take into account to understand corruption risk in particular locations where law enforcement agency staff are deployed.

CHAIR: Are you aware of whether the AFP and Customs are aware of TI's work?

Mr Moss : No, I am not aware. But, again, it is question now of picking up that idea.

CHAIR: I am interested to know if you want an in camera hearing now or if you would prefer to organise a later time for that?

Mr Moss : If I were to suggest an in camera hearing, it is one I would want to have with the AFP. But I do not want to raise expectations that a great deal of in-confidence material will be dealt with there. But we could perhaps go into more detail on some of the issues that have been touched on today in the present context.

CHAIR: Okay. Thank you for that. If there are no more questions, then I thank the ACLEI witnesses for appearing before us today.

Mr Moss : Thank you.

Proceedings suspended from 11 : 37 to 11 : 52