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Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity
19/08/2011
Integrity testing

BAKER-GOLDSMITH, Ms Sarah, Principal Lawyer, 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 09 : 02

CHAIR ( Ms Parke ): Good morning everyone. 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 integrity testing. I welcome you all 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 that 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 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 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. 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 Commission for Law Enforcement Integrity. You have lodged a public submission with the committee which we have numbered as submission No. 4. Would you like to make any amendments or additions to that submission?

Mr Moss : No, I would not, thank you, Chair.

CHAIR: I invite you to make an opening statement and then the committee will ask questions.

Mr Moss : Thank you, Chair. As always, it is a pleasure to appear before the committee. I take this opportunity to thank members of the committee for their continuing work in developing the Commonwealth's anti-corruption framework and the direction and governance of ACLEI. I wish to acknowledge the contribution made by past members of the committee. I also acknowledge those members who are new to the committee. ACLEI staff and I look forward to engaging with you and assisting you to become familiar with the work of ACLEI and with the operational environments of the agencies within the Law Enforcement Integrity Commissioner Act 2006 jurisdiction.

In relation to integrity testing, my starting point is a reminder to ourselves that there is no crisis of confidence in federal public administration generally or in law enforcement agencies. The incidence of established corrupt conduct is very low, and there is a very strong policy expectation from government that public servants must act with integrity. There are also a number of agencies that contribute in their specialised ways to the public sector anti-corruption framework. I acknowledge here especially the work of the Australian Federal Police, the Australian National Audit Office, the Australian Public Service Commission, and the Commonwealth Ombudsman. ACLEI is part of that integrity line-up, although with a small jurisdiction and a closely focused remit—namely, to counter possible corrupt conduct in law enforcement agencies.

When I consider the challenge that may face my jurisdiction, I am reminded of the title of a 1996 Australian Law Reform Commission report which first proposed an anti-corruption commission in relation to the Australian Federal Police and the then National Crime Authority. The title of that report was Integrity: but not by trust alone. The report's theme was that when it comes to high corruption risk environments, it would be ill-advised to rely only on shared values and trust, as important as those factors are. This principle reminds us that a seemingly appropriate culture and a seemingly effective control environment will not always mean that everyone will resist temptation or manipulation by outside forces. It also reminds us that not all opportunities for corrupt conduct can be easily removed or controlled. Accordingly, some checking is required, and the form that this checking takes must be matched to the challenge.

The question for the present inquiry is whether there is a case to add some additional checks in the form of integrity testing. I have spoken with this committee in recent years and in my annual reports about the aggressive tactics used by organised criminal groups to achieve their aims. The risk of infiltration and corrupt compromise in agencies engaged in the fight against organised crime continues to engage ACLEI. I have spoken also about the problems of the conscious opponent and the invisibility of corruption. These phenomena make it difficult to detect and gather evidence about corrupt conduct in a law enforcement environment, and we should not underestimate the challenge involved. Accordingly, I believe it would be timely now to add integrity testing to the options available to combat corruption. It will not be a panacea and it will not be the right method for every agency or in every instance; however, for the right situations, it will be useful to have the ability to conduct integrity testing.

As I mentioned at the outset, we are not in a situation of crisis in federal law enforcement. Accordingly, I do not see a need for the complexity and expense of a developed program such as those in some other jurisdictions both in Australia and overseas. However, some enabling legislation would be desirable in our situation, amongst other things, to give certainty about how evidence may be used and to afford legal protection to those officers who are involved in conducting the test.

The legislative model should not compel anyone to use the integrity testing method but enable agency heads or the Integrity Commissioner to use it as an integrity measure in relation to their functions and responsibilities if the need arises. Ideally it should also ensure that, in respect of the LEIC Act agencies, they are required to notify the Integrity Commissioner if an integrity test is to be authorised by an agency head. This measure will ensure that the action proposed does not cut across what ACLEI may already be doing or contemplating.

For the purposes of illustration, it may be useful to consider how ACLEI or another agency could use an integrity test. For example, as part of a broader investigative strategy concerning a law enforcement officer suspected of certain corrupt conduct, it may be useful to be able to place an illicit substance or something having that appearance in his or her path in order to see what happens. Would the officer register the item as is required? Although the officer may be suspected of corrupt conduct, the test would not necessarily be designed to yield conclusive evidence about corruption. In the present example, the test may stop at the point when the drug-like substance is not registered rather than at the possible later point of on-selling the substance which might assist in establishing corrupt intent. A test designed in this way would avoid complexity but could still produce valuable information that may lead to other avenues of inquiry or that may substantiate the use of other powers. The evidence gathered may also be used to achieve a disruption affect; for instance, informing a decision about employment suitability or for another intervention such as specialised training or closer supervision. The integrity testing method offers an additional option for skilled investigators to dismantle the levels of secrecy and deceptive behaviour that characterise corrupt conduct. For these reasons, I see a place for integrity testing. When used in the right circumstances, the method would improve the efficiency of corruption investigations. I conclude my opening remarks at this point; thank you, Chair.

CHAIR: Thank you, Commissioner. I will just open up by noting that, in your submission, it was noted that, 'if integrity testing had been an investigation strategy available to ACLEI, some past investigations would have benefited from its use.' Could you expand upon that, please?

Mr Moss : Yes. Without being comprehensive, there are two operations that I had in mind when that point was noted in my submission to this inquiry. I do not really feel free to go into further detail about that, just to assure the committee that, having surveyed the work of ACLEI now for almost five years, there would be times when we could have used this particular method.

CHAIR: Okay, thank you. Also in your submission you have stated that the emergence of targeting of government officials by organised crime groups in some jurisdictions means that integrity testing now warrants close consideration by agencies that may be vulnerable to such attacks. Can you, without going into detail, broadly outline how or in what area organised crime groups are targeting government officials?

Mr Moss : Yes. Just to preface my response, I do not see a direct link between the targeting by organised crime of public sector officials and therefore the need for integrity testing because of that; I see the link as the need for another measure that would be available in the detection, investigation and prevention of corrupt conduct. As to the types of targeting that ACLEI has seen by organised crime of law enforcement agencies, certainly the standout is the passing of information to organised crime. ACLEI talks in terms of the corruption handshake, which is where organised crime seeks facilitation from within to assist its criminal intent and criminal activity. So that is certainly one area. Another area is inappropriate association. But as I say, in these kinds of contexts, you have hopefully, if the committee so decides and recommends, another measure to use in this situation.

Senator IAN MACDONALD: Thank you, Mr Moss, for your very comprehensive and, I might say, helpful submission, and for your opening statement. There is a bit of a different view on who should conduct integrity testing. If it was to be your commission, do you have the skilled personnel and the people that could do that, or would you require additional resources or additional training? Are you capable of doing it?

Mr Moss : It is probably a key issue in relation to the present inquiry. Some years ago when the topic of integrity testing first came up in relation to this committee, the AFP seemed to be on the point of establishing a regime for integrity testing of its own members. At that point, I adopted the view that the best way forward would be for ACLEI to be able to work with the AFP in that it would have a regime in place and that there would be some involvement of the integrity commissioner and ACLEI in any work that the AFP would do under that regime. Now, that has not happened, but I see that, in its submission, the AFP shows enthusiasm for revisiting the question of establishing an integrity testing regime, and it sets out various options, starting from high cost to low cost, and you would see that table that they have provided. Again, my preference would be to have access to a regime conducted by someone else rather than the alternative or one of the options which is for ACLEI to have this arrangement and control it.

In terms of whether ACLEI would have the staff to conduct integrity testing, I doubt that we would, but I note that where integrity testing is part and parcel of the work of integrity agencies in the Commonwealth, and I think here in particular of the Corruption and Crime Commission in Western Australia and of the Police Integrity Commission in New South Wales, that they do not have separate integrity testing units; they merely use integrity testing as another method among other powers and methods they have in their investigation.

So, to bring that to some point, what I would be hoping for if a decision was made to proceed with integrity testing, would be a very low level, low-cost approach to integrity testing, and it being added in that sense of another option rather than the more expensive possibility of integrity testing units and all the expense and issues that go with that. But that does raise the question inherent in your own question—that is, do you then have the sufficient skill in your investigators to use or to gain maximum effect from any integrity testing conducted? I leave it there.

Senator IAN MACDONALD: Sorry, how did you answer that question? Do you have the skilled personnel?

Mr Moss : No, I think I said at the outset that I did not, but what I would envisage is a very light use of integrity testing if it were to be available to the integrity commissioner. By being a light use, I am trying to avoid the need for a dedicated unit. I would be trying to avoid the need for really deep specialist training for people who would conduct integrity testing.

CHAIR: Did you have something you wished to add?

Mr Moss : I am just being reminded that other methods are combined with integrity testing, but that may not be germane to your question right now.

Senator IAN MACDONALD: I would not mind the information in any case, even if it was not germane to the question.

Mr Hayward : I think the point of your question was: what are some of the tools required to undertake an integrity test? Some of those tools that may be used in an integrity test are things like covert police surveillance and some of the technical aspects around that. Going to what the commissioner said, that does not need to be a part of a program as a standalone. I think the AFP draws out in its submission some of the requirements around covert police surveillance.

Senator CAMERON: When does the integrity test become entrapment?

Mr Moss : The term 'entrapment' is also linked to the term 'inducement', and that is the term more commonly used in our legal framework, but the two are the same. It is when an inducement is inherent or when a fact is inherent in the integrity test that leads a person who is the subject of the test to make the wrong decision. The inherent principle of integrity testing is that there be clear, equal opportunity for a person who is subject to the test to pass the test or fail the test. An inducement would be where the factors relating to how the test was developed and then applied would skew that need for an equitable approach.

Senator CAMERON: There are two cases on this: Ridgeway v the Queen and Bunning v Cross. They go back to 1995. Are they the latest cases?

Ms Baker-Goldsmith : Bunning v Cross is the leading case around admissibility of evidence and the factors that are to be taken into account if evidence is improperly obtained. Ridgeway was specifically on the issue of entrapment, and that is where the High Court said that there is no defence of entrapment at law in Australia, but under certain circumstances taking into account factors, it may be appropriate for certain evidence not to be admissible.

Senator CAMERON: Well, there is a defence of entrapment in the US, and they use the term 'unwary innocent'. Are you aware of that term?

Ms Baker-Goldsmith : Only very broadly. I am not an expert on US law. There have been some developments—

Senator CAMERON: But the High Court did discuss that in the case that you mentioned ?

Ms Baker-Goldsmith : In Ridgeway, yes. Ridgeway very firmly stands for the principle that there is no defence of entrapment in Australia whilst it is in other jurisdictions. In that case the High Court determined in relation to the conduct of the police in Ridgeway where they went very far down the line of participating in an importation of illicit substances, for public policy reasons, that evidence should be excluded. You will have to forgive me, Senator, I am not as up on Ridgeway as I would like to be, but in that case the prosecution was effectively stopped.

Senator CAMERON: I do not want to try to conduct a test on Ridgeway here.

Ms Baker-Goldsmith : I appreciate that.

Senator CAMERON: Do you not think it is important that, if ACLEI wanted to use this process of integrity testing which could easily move to entrapment, you should actually be across these issues? It is not you personally; I am saying ACLEI. It is okay saying you want to use integrity testing, that is fine, but there are issues in relation to integrity testing that High Courts have debated, other countries have taken a different view on, and it may be something that parliament may want to revisit. If you start using integrity testing and you get it wrong, then the capacity is there for it to become a political issue to deal with. I put it to you that if you are using integrity testing you would need to understand the background as to how the High Court has determined that integrity testing should be used, and the minority views that pointed to some of these other issues. This is so that if you are training people on integrity testing, they will get some idea about the background to the use of integrity testing. Is that clear?

Mr Moss : Yes.

Senator CAMERON: I am just worried that it is easy to say, 'Let's do integrity testing', but it has lots of legal and moral implications.

Mr Hayward : They are very good points, and I think that is where, in our submission, we mention it being intelligence driven, about putting in place that when you do the integrity testing it is within the lawful and policy sort of framework, that an operational risk assessment is done before the test, of which all those factors that you highlight are made in that assessment phase. With the entrapment issue, it is about setting the test up in a way so that the conduct was done in a way that it was not likely to induce them into an unethical, corrupt or criminal behaviour. I think it is that they undertake the test in a way that they would normally have reacted. It is not about putting them into an environment where their intention would have otherwise been something different. It is about working with the intelligence and those frameworks to give that pass or fail, depending on their intent at the time.

Senator CAMERON: In Scotland, the main authority there is Browns v HMA which stated, 'Entrapment will occur when law enforcement officials cause an offence to be committed which would not have occurred had it not been for their involvement.' There are remedies available that correspond with that in England. Given that our law was on the basis of British law, I do not want to get your view on why the High Court made that decision, but I just raise the issue. If we start to use integrity testing widely, and it becomes a political debate about whether or not this is entrapment, then it could mean that the law becomes subject to some consideration by parliament again. That is why, if you are going to use it, people have to understand the broader issues, not just the operational issues. Is that fair?

Mr Moss : Yes, it is. I think that is right. The preference that I have expressed in my submission is that there would be a legislative framework around integrity testing. The expectation would be if a law were enacted that there would be debate about the issues in the parliament, and these could come forward at that stage. I would also expect that, if integrity testing were to be introduced and available at the Commonwealth level, we would take note of what had happened in other jurisdictions and ensure that the experiences of things going wrong previously would be well countered in any framework, approach or procedure that we adopted ourselves.

Senator CAMERON: What is the best practice approach to integrity testing in Australia?

Mr Moss : Do you mean which agencies would be using this to best effect?

Senator CAMERON: What agencies have the best practice? What have you looked at?

Mr Moss : I think I have already mentioned the two that I would be looking to myself; that is, the CCC in Western Australia and the PIC in New South Wales. I am aware that other agencies also use integrity testing but I am not familiar with exactly what they do. Therefore I am not putting any hierarchy on the two I mentioned vis-a-vis the others. But that is where I would be going to see what their experience was. We have in fact made contact with them in relation to preparing ourselves for our appearance this morning.

Senator CAMERON: Have there been any failed cases because of bad operational procedures on integrity testing?

Mr Moss : In the Australian jurisdiction?

Senator CAMERON: Yes.

Mr Moss : Not that I am aware of, no.

Senator CAMERON: Does that mean no or yes or you do not know?

Mr Moss : I do not know.

Ms Baker-Goldsmith : I think it depends on the purpose for which the other jurisdictions are conducting integrity tests. Also, there may be what might amount to a colloquial definition of an integrity test whereby if a law enforcement officer is suspected of corruption, he is investigated in the ordinary way. I am not aware of any case law specifically on a failed integrity test in Australia.

Mr Moss : Senator, you mentioned earlier illegal conduct by those involved in the test. I draw your attention to the controlled operations framework where the same issue arises; that is, something illegal in that sense is done in the course of conducting the operation but for the indemnity given by the controlled operation legislation and in relation to the integrity test. That would be one of the reasons you would want a legislative framework. For instance, if you wanted to conduct an integrity test, you might put false information in a database so that a person who you suspect of unlawfully disclosing that information to another person would then see that information and then disclose it, and that would be a form of integrity testing. But the placing of the data in the first place, without the coverage, would be an illegal act.

Senator CAMERON: I must say I did not realise it was such a complex legal issue. I do not suppose it is that complex here in terms of the decision in Ridgeway v the Queen, but other jurisdictions have raised real concerns about how this is used and have said it should not take place. I am just coming from that perspective, I must say. It is a contested area around the world. Even though our High Court has said under common law here there is no bar in doing it, it raises all the issues that are raised in the US, Scotland and Canada. They do not go away as moral issues, do they?

Mr Moss : No, they do not. I think it is worth taking into account that integrity testing as a term encompasses a wide range of types of testing. You would have noted in the various submissions, including my own, that there is the division between targeted or intelligence led testing and random testing. It may be that these cases are drawn from that broad continuum. I just do not know where they stand.

Senator CAMERON: I must say I have not looked any deeper; it is a very shallow look I have had at it this morning, just looking at what was available on the net. What jumped out immediately was that there are these contentious issues relating to it, and in some jurisdictions that we would rely on, such as the basis in law in the UK, it is not allowed.

Mr Moss : I note your comments about the complexity of it. It certainly is a complex legal area, but I also note that controlled operations has addressed this to some extent, and one could seek guidance from that legislation and that approach also, and there is a relationship between controlled operations and integrity testing which we can go into later if you wish.

CHAIR: I would just note from my own meeting with the New York Police Department Internal Affairs Bureau last week that they are very careful when it comes to targeted integrity testing to pass by the District Attorney's office any scenario that they are planning to ensure that it complies fully with the law.

Senator PARRY: There are three broad areas: I think it goes to legislation, cost and the practical delivery of integrity testing. I want to go into the practical delivery side which seems to be where the complexity is. If we just ignore the expense for the moment, I gather from your initial statement that you would like to see the provision legislatively for you to have the ability to perform or conduct or supervise, and no doubt you would be the lead agency?

Mr Moss : That is not what I would envisage. I would see ACLEI as a user of this arrangement.

Senator PARRY: Not as the lead agency?

Mr Moss : Not necessarily, no. My thinking would be that it would be available to the agencies within ACLEI's jurisdiction to also use the integrity testing within a framework delivered by legislation.

Senator PARRY: Would it not be like how you currently conduct investigations in relation to integrity matters where the agency has some sort of prime role and you have an oversight?

Mr Moss : Yes, certainly that would be part of it.

Senator PARRY: Could we suggest that ACLEI might be the agency that would have oversight over every integrity test if this did come to pass?

Mr Moss : I think that issue itself is up for discussion. I assume you are thinking whether a monitoring role would be appropriately with ACLEI?

Senator PARRY: Yes.

Mr Moss : Certainly the ACC submission talks about consultation. I had in mind something along those lines, too, whereby agency heads would notify me of their intended use of integrity testing, but as to something more thorough going in terms of monitoring, I did wonder whether that was a proper role for ACLEI to engage in.

Senator PARRY: It is fair to say that, outside of integrity testing, you would have an oversight of every major potential corruption issue or investigation in the agencies that you have responsibility for?

Mr Moss : Absolutely.

Senator PARRY: Why could that not continue into the integrity testing regime as well?

Mr Moss : It could. I am thinking more of the technical adherence to provisions of the legislation, in the same way that there is technical adherence to the provisions of legislation relating to surveillance or listening devices or telecommunication interception.

Senator PARRY: Could we just push that to one side for the moment? I am just thinking of an agency—and this is the ideal agency—and I suppose we do need an indication for our deliberations as to whether you feel as though your agency would be the supervising agency, the overarching agency responsible for integrity testing, whether or not you physically conduct the integrity testing? This is so there is some common oversight, I suppose, rather than having several regimes of integrity testing across various Commonwealth agencies.

Mr Moss : Yes. I suppose the question relates to the range of activity that an integrity test could be applied to within any of the law enforcement agencies. For instance, they might want to direct an integrity test against misconduct, whereas my focus, as you know, is corrupt conduct. There might be a question there for—

Senator PARRY: So low level integrity testing then could take place in agencies without you necessarily having a supervisory or oversight capacity. In your opening remarks you indicated that you would like to use it infrequently or low level as in the number of times you would use integrity testing, not necessarily the low level being the nature of the operation, because as we know, integrity testing operations are expensive and costly and time consuming. With that take-out—allowing agencies to do their own minor integrity testing—do you still see a role for ACLEI to have the oversight of all agencies for any major integrity testing application?

Mr Moss : You said putting the technical emphasis aside, yes, I think that is absolutely right.

Senator PARRY: Obviously, if we recommend anything, a consideration for us would be cost and resourcing. I think we are looking at the pure model at the moment. The cost and resource issue would be a secondary phase of our deliberations.

Mr Moss : Yes, I think it would be consistent with the present framework too, that agency heads notify me of corruption issues as they become aware of them, and I would similarly require to be notified beforehand of what their intentions were, if they propose an integrity test—both to keep on top of patterns and trends of where they were seeing concerns, as well as to make sure that there was deconfliction for anything I had intended to do or was doing that they might not know about.

Senator PARRY: We are obviously now just talking at the moment of targeted or intelligence based integrity testing. Do you have a view on random integrity testing?

Mr Moss : No, I do not see a role for it. I see it as having many disadvantages, not countered by advantages, so from that point of view, I am looking at intelligence-led targeted integrity testing.

CHAIR: Could you expand upon what you think are the disadvantages?

Mr Moss : It goes to the question of trust between the employer and the employee. It relates to the evidence already available in jurisdictions that use random integrity testing that the incidence of failure of the test is low compared to the incidence of failure when targeted integrity testing is used. You would note the Australian Federal Police Association's submission about random testing. I think there is just a general view that it adds unnecessary expense. You really want to be focused on what you are doing in terms of targeting corrupt conduct or corruption risk.

CHAIR: There seems to be a view among those police forces that use random testing that there is a high deterrent value in random integrity testing and that might account also for the low failure rate?

Mr Moss : I would suggest that there could also be deterrent affecting targeted testing. If members of a law enforcement agency knew that there was a testing regime that was targeted, it would have an equal deterrent effect. The comparative merits between random and targeted, as for deterrence, I just would not have knowledge about that.

Mr HAYES: I am interested in two areas: resources and the evidentiary aspects of it. In terms of resources, having had a previous association with the set-up of PIC in New South Wales and its officers, and seeing how people were seconded into that with expertise from all around the countryside, is there scope for looking at some consolidated approach, outsourcing or importing resources from other integrity based agencies such as PIC, the CCC and elsewhere for specific operations?

Mr Moss : I think there would be scope for that. It relates to Senator Macdonald's question about whether ACLEI would have the know-how to conduct integrity testing. ACLEI already engages specialists by secondment or temporary transfer to assist it in various ways, such as financial analysis. So I would see this area as being a good opportunity for obtaining the expertise of others, particularly where they have an established track record of good work and good outcomes. It would also be consistent with my view that you would want to avoid, because of cost, the establishment of integrity testing units.

Mr HAYES: Following on from Senator Cameron's questions in respect of the evidentiary quality of results from integrity testing, notwithstanding the fact that it has not sustained any charges out here in the courts, I know there have been a lot of police officers who have been subject to targeted integrity testing and have failed, and as a consequence lost their employment. In respect of the Australian Federal Police, as with every other police jurisdiction, there is the provision of commissioner's confidence, and I think that is probably what is being relied upon here, is that right?

Mr Moss : It would be, yes.

Mr HAYES: Last year we varied the Australian Crime Commission provisions to also provide something very similar in that organisation, being equivalent to commissioner's confidence. That being the case, what about other agencies such as the Australian Customs and Border Protection Service and the National Crime Authority where the same provision does not exist? I think they are probably covered by the Public Service code of conduct. Would we need to look to the integrity provisions there and underpin that with something equivalent to a commissioner's confidence for integrity testing to be useful in those jurisdictions?

Mr Moss : I think that the Public Service Commissioner's submission to this inquiry touches on some of these points very usefully. It is noted in that submission that it is well within the bounds of an employer to set standards for employment in a particular agency. The Public Service Commissioner's submission goes on to say that integrity testing in his view would be one of those conditions of employment that could be applied in an agency in which the staff were employed under the Public Service Act. I note that the commissioner's confidence power is now, as you said, available to the Australian Crime Commission, but also note that that is an agency whose staff are employed under the Public Service Act.

So already we have this distinction between the basis of employment across ACLEI's jurisdiction—that is, the AFP under their own legislation, the Australian Federal Police Act, and then the other two agencies, namely Customs and the ACC coming under the Public Service Act. So I think that the Public Service Commissioner's submission answers the point. Yes, you could have integrity testing as part of the terms and conditions of employment. As to whether you used a commissioner's type confidence power in that context, I think there are other ways you could also deal with issues coming out of integrity tests without necessarily requiring that kind of power.

Senator WRIGHT: I am interesting in understanding a little bit more about the role that you would envisage for ACLEI in this situation and taking into account the concerns that Senator Cameron has raised. An analogy might be an ethics committee at a university. I am also thinking about what the Chair said about New York and the design of a particular procedure being run past the Attorney-General in New York to check that it is within ethical boundaries, so that you perhaps then try to avoid the risk of its going so far that it becomes unethical and perhaps unreliable, even if it is within a legislative framework. Is that the role you might see whereby, rather than actually designing particular tests for particular agencies which presumably will know their own needs better, there could be some system of oversight in that way?

Mr Moss : Indeed. In fact, you have raised the point that there is a balance issue in all of this. In its work, ACLEI already is mindful of privacy issues. Although not coming under the Privacy Act, nevertheless we are very mindful of privacy issues, and also the question of reputation and the need to protect reputation. On the other hand, you have the need to be quite concerted about your determination to detect and combat corrupt conduct because of the extreme consequences for agencies and for the staff of those agencies in which some of their members are found to have engaged in corrupt conduct. So this is the balance issue. I think you are quite right; in terms of an ethical sense, in an application of an integrity testing regime you have to also have in mind this question of balance between an ethical approach and use of it and what you are seeking to prevent—that is, corrupt conduct. With respect to oversight, this committee already oversees the use of my extensive powers. There may be some possibility for that also to be included as it could easily be in your own focus about my work and that of ACLEI.

Senator WRIGHT: Looking at pages five and six of your submission in relation to the benefits or the advantages of integrity testing as opposed to other evidence gathering techniques, it led me to think about some of the flaws in other techniques, such as hearsay evidence. In your submission you are suggesting that properly carried-out integrity testing will be perhaps often fairly conclusive. Maybe I am reading too much into it. But that might be why ultimately it might be a fairer way of trying to establish whether there has been some corrupt conduct as opposed to relying on innuendo, rumour, hearsay and a conglomeration of evidence in that way?

Mr Moss : Indeed. It may be conclusive; it may not be, but it certainly would be another useful measure to have in the range of measures already available. Also in terms of efficiency, if you can cut through by the use of one method and get to a result where otherwise you might take the long way around using other methods, I think this is to be welcomed. The other point I have just been reminded of is that sometimes it is not just a question of detecting corrupt conduct; sometimes it is a question of disruption. You might have an officer or a group of officers who are under suspicion and we just cannot quite get the evidence that they are engaging in corrupt conduct or how they are engaging in corrupt conduct. But integrity tests might reveal something lesser, such as a sound reason for disciplinary procedure, and that would certainly be applied. There is that consideration also in an integrity testing regime.

Senator SINGH: How much work, if any, has ACLEI done into the success, problems and costs of integrity testing programs in other jurisdictions that are already in place as a snapshot of what those problems would be if it were run in a jurisdiction by ACLEI or in Australia? You note in your submission that, in relation to law enforcement agencies, Hong Kong's Independent Commission Against Corruption has the longest running integrity testing program. That may be an area of research to look at, seeing it has been in place a long time. But obviously there are other jurisdictions that could provide this committee with a detailed analysis of how this could work if it were to be in place in a broader sense in the way that we are discussing here today, and answer some of these questions that other members of the committee have asked already.

Mr Moss : ACLEI has kept itself informed as an observer of those agencies which have an integrity testing regime and which use integrity testing. They have a practitioners' forum which meets on a regular basis, and ACLEI has been attending and represented at the forum since ACLEI's establishment. To that extent, we have a feel of how it is going and which agencies are using it and which agencies are using it to best effect. On occasions, that forum has invited overseas representatives to talk about their experience, particularly from the west coast of North America. In terms of the extent to which ACLEI has researched this, I must say, not to a great degree. There would be a number of places you could go and agencies one could talk with to become better informed. I think at this stage we are at the high-level consideration of integrity testing and just working out what sort of regime we require. So it is more in the general application of it that we are thinking. In terms of more detailed work and analysis, we have not done that. We have not got there. That would be ahead of us should the need arise.

Senator SINGH: So you consider that would be something necessary to do to have a fuller picture before pursuing further avenues, if that was the way you wanted to go?

Mr Moss : In terms of informing this committee, if the committee asked us to do that, we certainly would, or the committee may itself choose to become familiar in a direct sense with what is available elsewhere. If such a regime were to be available to ACLEI and to other agencies, then as I have said earlier, we would certainly seek to take advantage of past experience and to ensure that we started at that point so we could offer the best possible practice.

Senator CAMERON: Do you believe that entrapment is a legitimate process?

Mr Moss : No, I do not. I think it is a wrong approach. It starts on the wrong basis. Therefore I do not adhere to entrapment in any sense.

Senator CAMERON: In Ridgeway v the Queen, Justice McHugh laid out a number of tests that he thought should take place. He said that a focus should be on whether the conduct of the authorities induced an accused person to commit an offence. He then goes on to say, 'Whether the authorities had reasonable grounds for suspecting that the accused would commit the offence, and whether prior to the inducement the accused had an intention to commit the offence.' Would the McHugh tests be something you would take into account?

Mr Moss : They certainly are, and I suggest to you I take these issues into account already in terms of when I am notified of a corruption issue or one is referred to me, or when I become aware of one through ACLEI's own work. These issues arise already: how this matter is handled; the protection of a person's reputation; and the question of a person's privacy. All of these issues arise already in terms of ACLEI's work and the decisions I make.

Senator CAMERON: What about the AFP's work? How would ACLEI view an entrapment approach by the AFP? Would that be something that would draw your attention to the AFP?

Mr Moss : Yes, it would. It does not come within corrupt conduct necessarily, but as an approach, I would not be supportive at all, and I would hope that by consultation or the framework that existed whereby I would be notified of a proposed integrity test, that I would have sufficient knowledge to make an input, if necessary, about the framework of a proposed test and whether there was a danger of entrapment or inducement.

Senator CAMERON: The AFP are giving evidence. They are sitting and listening to this now, so I am sure they will be prepared to answer questions on this. Are you saying that if an AFP officer involves themselves in entrapment against a suspect, you have no power to deal with that?

Mr Moss : It would depend whether the matter fell within one of misconduct or corrupt conduct. If it were one of misconduct, then it would not necessarily come within my interest. It might be one for the ombudsman or for the AFP itself.

Senator CAMERON: How do you make the judgment?

Mr Moss : It is on a case-by-case basis. It is a question of understanding all the facts of a situation and deciding on balance whether entrapment or inducement has been an element of the integrity test. I also note that sometimes misconduct is an indicator of corrupt conduct, so therefore, to that extent, I would not necessarily rule out looking at an inducement related misconduct in the framework of integrity testing.

Senator CAMERON: But you are confident if you make a determination that you will investigate, then that is the end of it, is it not?

Mr Moss : Yes, I have that clear discretion as to what is to be done with a corruption issue.

Senator PARRY: I want to go back to random versus targeting. The effect of random is to create a great deterrent. When does targeted or intelligence led integrity testing morph or merge into surveillance? I will give a good example that the US use, where they set up a shop front where they suspect officers that are patrolling may be attending burglaries and stealing at the scene of the burglary. So they set up an integrity testing regime where the whole place is videoed et cetera; they have targeted the officers. There is a false call and the officers attend and they are caught stealing. Where do we draw the line between using surveillance methods that currently exist with the current legislative framework to then going into that style of integrity testing?

Mr Moss : Integrity testing uses other powers. It is not used alone: you would use surveillance as you indicated, you would use telecommunications interception and you would use listening devices as necessary. There is a convergence of powers and measures involved in integrity testing. I would suggest to you that the example you gave is in fact one of targeted testing and intelligence led testing rather than random. Random might be—and you could say this is the case already—where the AFP annually tests each of its members for drug use. That is a random test. It is out there. People know that this is going to happen once a year, and they are subject to it. I would include your example as targeted intelligence led.

Senator PARRY: It is absolutely that, but where do we draw the line? Why do we need integrity testing when we can use existing surveillance methods? If there is an intelligence led reason to conduct an integrity test, why could it not just be by the normal means of investigation and surveillance?

Mr Moss : I think it goes to this question of efficiency where you could follow someone for a very long time and put a lot of resources into that, but an integrity test brings you the focus; it gives you that clear guide at that point. You can use it then to invoke other powers and other resources. Just to have a suspicion—

Senator PARRY: It is a way to truncate an otherwise lengthy process. Therefore, if that happens and that just becomes another tool for catching crooks, catching corrupt officers, then there is no real advantage in having integrity testing apart from that reason only unless we have random based integrity testing to act as a great deterrent. That is the issue, really. If we go to a lot of legislative reform to introduce integrity testing that is only going to be targeted or intelligence based, all we are doing is really shortening the potential investigation, if in fact that is what happens?

Mr Moss : That itself is valid, though. The resources of ACLEI are limited. The resources of these agencies we oversee are limited. If you can put the resource and the focus where it has to be, I think anything that helps you do that is important.

Mr Sellars : I think your question is related to Senator Cameron's questions about entrapment, inducement and fairness. One of the purposes of having an integrity testing program is that due consideration is given to those fairness and entrapment questions. In the scenario you have given, it would be possible, generally speaking, to do that presently without legislation, but whether that would overcome some of the fairness questions as to how the evidence may be used is another matter. While the general scenario you have given is one that you probably could conduct now without specific legislation, there are probably many other types of integrity tests that would be equally useful. The Integrity Commissioner gave one in his opening statement where you would need legislation to protect the officers involved against claims that they themselves committed a crime. I think that is the real purpose. The amount of integrity testing that needs to occur for there to be a deterrent effect I think is an unknowable question.

Senator PARRY: I would like to explore this for a lot longer, but I will leave it there.

CHAIR: I want to thank the witnesses from ACLEI for giving their time today. The committee may of course come back to ACLEI with any further questions during the course of this inquiry as it progresses. So thank you for today.

Mr Moss : Thank you.