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Legal and Constitutional Affairs Legislation Committee
(Senate-Tuesday, 14 February 2012)
Australian Human Rights Commission
Family Court of Australia
Federal Magistrates Court of Australia
Office of the Australian Information Commissioner
Australian Government Solicitor
Office of the Director of Public Prosecutions
Australian Crime Commission
Australian Federal Police
Australian Customs and Border Protection Service
Australian Security Intelligence Organisation
- Australian Human Rights Commission
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Content WindowLegal and Constitutional Affairs Legislation Committee
Australian Federal Police
Australian Federal Police
CHAIR: Commissioner Negus, good afternoon to you and your team. Do you have an opening statement for us today?
Mr Negus : No, I do not have an opening statement.
Senator BIRMINGHAM: Mr Negus, thank you for your time today. My understanding is that the government referred matters related to alleged leaks with regard to the Australia Network tender to the AFP late last year. Is that the case? Can you confirm to me who approached the AFP, when that approach took place and by what means?
Mr Negus : On 17 October, as you quite rightly say, the Australian reported on decisions and recommendations made by the Tender Evaluation Board. That matter was referred to us on 27 October 2011 by the Department of Prime Minister and Cabinet.
Senator BIRMINGHAM: Is that still a matter of live investigation by the AFP?
Mr Negus : On 30 November we accepted that for investigation and the investigation has been conducted. As late as last week, we wrote to the Secretary of the Department of Prime Minister and Cabinet with some interim findings for that matter. We are now waiting on the secretary of PM&C to come back to the AFP with any other matters. Otherwise, the matter is getting very close to being finalised.
Senator BIRMINGHAM: Thank you. Were officials in any government departments interviewed as part of those investigations?
Mr Negus : Yes, they would have been. I do not have specific details, but we could certainly find that.
Senator BIRMINGHAM: If you are able to inform me which departments interviews took place in, that would be appreciated.
Mr Negus : We will get that for you.
Senator BIRMINGHAM: Were any journalists or individuals from media organisations interviewed?
Mr Negus : No, I do not believe so, but, again, we will get that in the context of speaking to the investigators involved.
Senator BIRMINGHAM: Does your advice to PM&C provided last week recommend that further action be taken?
Mr Negus : I think that is premature. Technically, this is a live investigation. We have given a preliminary report to PM&C, so whatever comes out of that may well initiate further inquiries or further action to be taken by the AFP. That is yet to be determined, so to comment on that at the moment would be inappropriate.
Senator BIRMINGHAM: Were any ministers or staff from ministers' offices interviewed as part of the investigations?
Mr Negus : No, they were not.
Senator BIRMINGHAM: Regarding the government and relevant departments answering other questions in relation to this matter about the procedural conduct of the Australia Network tender and the like, do you believe that your investigation is any impediment to them providing answers to the parliament or to media outlets to any questions about the conduct of this tender?
Mr Negus : We do not control who says what in those environments. They cooperate with us of their own free will and those who are interviewed answer questions of their own free will in that regard. In any investigation it is not helpful to have a lot of speculation by those involved whilst we are still interviewing witnesses, because, again, that could taint the evidence of future people we need to speak to. We have no control over people we have spoken to who then come out and speak about this matter publicly.
Senator BIRMINGHAM: I will read to you a statement that was provided in response to a series of questions on notice put to the Department of Foreign Affairs and Trade about the conduct of the Australia Network tender—questions such as when advice was provided to ministers and those types of basic procedural questions. This statement says: 'As the questions on notice go to matters being considered by the Australian Federal Police and Australian National Audit Office, it would not be appropriate to comment.' I would not ask you to speak on behalf of the ANAO, but, on behalf of the AFP, do you see any direct impediment to government departments continuing to cooperate with the parliament and parliamentary committees whilst an investigation of the nature that you have been looking into is undertaken?
Mr Negus : As a general statement, I would support their position on that. As I said, it is not helpful for people to speculate or answer questions that may well have an impact upon the work that is being undertaken by the AFP. So we would give advice to departments that, during the conduct of an investigation, it would be not helpful for them to speak publicly or put any matters on the public record that are components of the investigation.
Senator BIRMINGHAM: Regarding your letter to the Department of Prime Minister and Cabinet and your awaited response from them, is my understanding correct that you will not be taking any further action until such time as you have heard from the Department of Prime Minister and Cabinet?
Mr Negus : We will be awaiting their response and then evaluating that. Then we will make a final decision, which will obviously be made public at that time.
Senator BIRMINGHAM: Thank you. Unless you are able to provide me with any responses to those earlier questions about whether officials in departments were interviewed, in particular which departments—
Mr Negus : I do not think so. Unfortunately, I will have to take that on notice, but we will provide those as soon as we can.
Senator BIRMINGHAM: Which departments and also media organisations. And, if so, which media organisations?
Mr Negus : Depending on how long we are in the inquiry, we might be able to provide those before we finish today.
Senator BIRMINGHAM: If you could, that would be great.
Senator FURNER: Mr Negus, last estimates, in October last year, you detailed a number of good drug busts made by the AFP. Please give us a rundown of what has occurred since then.
Mr Negus : I will get the Deputy Commissioner, Operations to run through that for you.
Mr Colvin : I recall we spoke at length in the last estimates hearings. To give you a snapshot in relation to drug matters that the AFP has been involved in, we have two specific divisions within the AFP that deal predominantly with drug matters—that is, our crime operations and our serious and organised crime. As the name suggests, serious and organised crime is focused very much on the high-end of drug matters. To give you a few examples, in December 2011 Operation Lewin resulted in the seizure of more than $8.7 million in cash which was suspected of being the proceeds of drug crime. Two people have been arrested for that. In November 2011, Operation Manzanita resulted in the seizure of 104 kilograms of heroin and 114 kilograms of pseudoephedrine worth approximately $30 million. One man has been arrested in that matter. Operation Avalon, which you may be familiar with from the media at the time, resulted in the seizure of 300 kilograms of cocaine off the coast of Bundaberg in Queensland. The cocaine has an approximate value of $78 million. Four people have been arrested for that matter. Also in November, three further people were arrested in Melbourne following the seizure—you asked about drug matters, but this was a credit card job; I will stick to drug matters.
In September 2011, as a result of Operation Polaris, a task force we have spoken about before, more than 60 tonnes of illegal tobacco were seized which had the potential to defraud the Commonwealth of more than $36 million in tax revenue. Operation Hitch, also in September 2011, resulted in the seizure of 288 litres of pure safrole which was the largest seizure in AFP history. There are a number of others, but that is a snapshot of some of our successes in the last six months.
Senator FURNER: Overall, what are the statistics telling us in relation to these recent busts? Is it the case that you are gaining more in the net?
Mr Colvin : It is very difficult to give forecasts or long-range trends. Last financial year we seized nearly six tonnes of illegal narcotics. This year we are not tracking as high as that pro rata, but we are tracking higher in the number of actual seizures; more seizures but smaller amounts. It is cyclical and it is difficult for us to predict one year to the next whether we will have large quantities or a large number of seizures. At the moment, for this financial year, we have seized just under two tonnes of illegal narcotics and that has come from nearly 2,000 different seizures. To give you an example, for the full 2010-11 financial year we had 3,762 actual seizures, so pro rata we are ahead of that number, but we seized just over five tonnes of actual narcotics. This year we are at about two tonnes of narcotics.
Senator FURNER: Out of those 2,000 different seizures, how many convictions have resulted?
Mr Colvin : I would need to take that on notice. It will be some time before most of those matters from this financial year make it through the courts. I would suggest that none of those matters in this financial year, unless they offer a guilty plea and are dealt with very quickly by the courts, would have resulted in a conviction.
Senator FURNER: Other than those illicit drug busts, what activities has the AFP been involved in?
Mr Colvin : As you know, the AFP has a very broad remit in terms of the crimes that we are interested in, including people smuggling, terrorism, narcotics, fraud. Project Wickenby, which we have talked about before in relation to offshore tax havens, is a continuing operation. I have put some material on the record to this committee before about it. One matter that I started to mention before, which is something that we take very seriously and are quite focused on is identity theft and identity fraud. In November of last year three people were arrested in Melbourne following the seizure of 10,000 fake credit cards. We estimate that this seizure prevented a potential $25 million worth of fraudulent credit card transactions. This is an area of growth for the AFP. In October of last year we had the second largest labour trafficking prosecution in Australia's history. It was recorded when a Sydney restaurant owner pleaded guilty to one count of people trafficking. You would have seen some media and press over the last six months about the growth in human trafficking. It is quite distinct from people smuggling; I am talking trafficking for purposes of sexual or labour exploitation. It is certainly a growing area of interest and concern for the AFP and something that we commit quite a lot of resources to.
Senator FURNER: In respect of that particular crime, what are you seeing as a result of that? Is it a case of people being smuggled from one particular part of the globe?
Mr Colvin : Largely it is for the purposes of sexual exploitation. I think in the order of 70 per cent of the matters that we see are for sexual exploitation. Having said that, we do see matters for labour exploitation, and in the last 12 months I recall we did see our first matter that was actually an organ transportation. A person was trafficked for the purposes of removing an organ. Obviously that is concerning to all agencies.
We work very closely as part of a whole-of-government strategy, which is not just Commonwealth in nature but also picks up our state and territory partners. It is mainly women trafficked out of Asia, as you would expect. The circumstances that they get themselves into when they are in Australia varies from servitude, where passports are taken off them and they are forced to do certain things, through to a certain level of compliance and acceptance of the situation that they are in. Certainly, from an Australian standard, they are being exploited.
Senator FURNER: I have one last question in respect to Afghanistan. What is the AFP doing over there at present and what sort of numbers do we have over there?
Mr Negus : We currently have 28 officers serving in Afghanistan. They are heavily involved predominantly in Tarin Kowt training Afghan National Police officers to train further Afghan National Police officers, working with NATO and NATO trainers on the ground over there. At this stage we have trained approaching 2,000 Afghan National Police out of about the 3,000 Afghan National Police that are in the Oruzgan precinct. It is quite a substantial number that have been trained in the process. We also have a number of officers working in Kabul in more strategic roles as advisers and working with NATO to develop ongoing curriculum and other educational process to make sure that the policing advances that we are making in the basic training are institutionalised and can be carried on post the transition in the next few years.
Senator FURNER: In respect of the training, what sort of training are you referring to?
Mr Negus : It is a basic patrolman's course which gives the police some basic skills in survival and in policing methodologies and those sorts of things. We have actually trained nearly 200 investigators in Kabul in their major crimes task force, and these are the cream of the Afghan National Police who are undertaking corruption investigations and serious crime investigations. It is their higher end investigators. We have also trained a number of people in leadership and management skills in Oruzgan as well. There are a range of different levels of the training. The bulk of them have been basic skills. As I have mentioned to this committee before, we started from a very low base in Afghanistan with literacy levels and attendance levels being very low, but we have managed to train almost 2,000 of the police in Oruzgan.
Senator FURNER: Well done. I was there last May and witnessed some literacy issues in respect to the Afghan Army. Are you facing similar issues in regard to people not having any literacy whatsoever and developing that degree of having an ability to read and write and so on?
Mr Negus : Yes, we are. We are working with the local authorities to try and raise the skill level, and mentoring people from the ground up to the police commissioners in particular provinces where we are trying to help them as well develop their management and leadership skills in an environment which is obviously a very tough one, as you have seen.
I think the key of what we are trying to do is to train the Afghans to train themselves. One of the best achievements is that the Afghan National Police are now delivering these courses under the tutelage of foreign law enforcement, including the AFP, but NATO more generally.
Senator FURNER: Thank you.
Mr Negus : You were talking about the performance of the AFP. We had a very good year last year and met 31 out of 33 of our key performance indicators. I mentioned to this committee on the last occasion some of the statistical data that you referred to. So far this year we have 33 key performance indicators on which we report back to government in our annual report. At this stage of the year we have met or exceeded 25 of those. Eight are not yet available because they are the subject of surveys and other consultations, so it is not as if we are not meeting them. The survey data is not yet available. Anything we can measure we are meeting. As I said, we have met or exceeded 25 of those key performance indicators along the way. That covers some of the drug-seizure data that the deputy commissioner mentioned but also a range of other performance factors across a range of different activities that we are involved in.
Senator FURNER: Thank you.
Senator WRIGHT: Thank you for your time today. I would like to ask you some questions today about surveillance of environmental protest groups. Does the AFP monitor the activities of environmental issues motivated groups and activists that undertake peaceful protests at coal mine sites, power stations, coal export facilities and other related sites?
Mr Negus : As a general rule we monitor the broader environment as part of our responsibility to protect Australian high office holders and to protect the community against the commission of criminal offences. But surveillance and those sorts of things along the way you are talking is not something we do as a matter of course. There has obviously been some public discussion around the use of contracting some external, publicly available information and the monitoring of that by the AFP, and I am quite happy to expand on what we do and how we do it in that space.
Senator WRIGHT: Yes. We will be asking you some questions about that. Some of my information has come from a public document that was published in the Age on 7 January this year, and I understand that the information in that came from freedom of information access documents, so I will be coming to the outsourcing and the question of whether it is only publicly sourced information or there is other, additional surveillance that is going on. That is where my question is going at this stage.
Mr Negus : Can I expand on my last answer? Part of our responsibility is the protection of high office holders and a range of other people. In that area we have an area called protection intelligence who broadly have very good relationships with protest groups and broader members of the community who may have particular issues on which they would like to demonstrate. We take very much an upfront view of this. They will be approached. They generally will work with the police to make sure that any protest activity is done peacefully and in the appropriate way so it can be appropriately dealt with. This is to ensure public safety more broadly. So we take an upfront approach, and there are some very good relationships that exist between our protection liaison staff and some of the broader protest groups who would exercise their right to do so.
Senator WRIGHT: My question goes to more covert surveillance where perhaps there has not been that upfront approach made. I understand that there would certainly be relationships built there in relation to protection of high office holders. The information in the article related more specifically to areas where there was some suggestion that there may be a concern about, for instance, security of energy supplies, so I do not think the proposal was around high office holders at all. I come back to the question: does the AFP monitor the activities of environmental issues motivated groups and activists that undertake protests at coal mine sites, power stations, coal export facilities and other related sites? I do not think you have actually answered my question there.
Mr Negus : It is very difficult to give you an answer on that. If there is an allegation of criminal offences that would be conducted, we do conduct surveillance, and of course we do it across a wide range of different criminal activity, from the serious organised crime spectrum right through. It is not something we do routinely, but I could not give you a categorical answer. We do not really confirm who or other we may or may not be investigating or conducting surveillance on. But it is not a primary activity of what the AFP does.
Senator WRIGHT: I am not asking you for identities. I would understand that. What I am asking about is the process by which you would make a decision. If you do that surveillance—and I understand that you are essentially saying that you do—
Mr Negus : We would certainly consider it. If there were an allegation of a criminal offence that may be committed or something that may threaten public safety, we would certainly work with other government agencies to make sure that we were getting across that to the best of our ability.
Senator WRIGHT: So has that occurred in the past?
Mr Negus : Looking at the table here, not in our knowledge. This is why I am being a bit circumspect about it, because, again, most of our activity where we deal with protest groups is very much upfront and we try to work with them to get a proper outcome which satisfies the need to protest but also protects public safety. There is no covert, underhanded nature going on, but if there were an allegation of a criminal offence, a terrorist offence or some other matter then I could not categorically say that the AFP would not conduct surveillance, because it is something that is in our remit to do.
Senator WRIGHT: When you say 'not in your knowledge', do you mean the knowledge of the four gentlemen who are here today or do you mean generally? In that case, I guess I would ask you to take it as a question on notice.
Mr Negus : Yes, I am looking across my deputies here. Unfortunately, the deputy commissioner who is responsible for our protection intelligence area is on leave at the moment and he is not here, but I am very confident in saying that the four of us would know about it if it were taking place, and that has not happened.
Senator WRIGHT: In that case I will ask you to take the question on notice, because I think you can probably understand that the allegations that were raised in the article are of great concern to citizens, a lot of whom—or not a lot, but there are certainly some citizens in Australia—participate in peaceful protests, and in fact it is a tenet of our democracy that it is possible to do that. The idea that there may be some kind of surveillance occurring is obviously something that we would like to know more about if that is the case.
Mr Negus : I understand and respect that and am happy to take that on notice.
Senator WRIGHT: Thank you. To come back to the process and a decision that would be made if surveillance has occurred or were to occur in the future, what would be the impetus for such surveillance? What would be the process? Why would you consider doing that?
Mr Negus : It would be the allegation that a criminal offence has been or will be committed either through that process or as a result of that process.
Senator WRIGHT: Would there be a process whereby there could be some suggestion or some request made by government, for instance, for the AFP to consider undertaking that sort of surveillance?
Mr Negus : I can categorically say, because I have checked on this, that there has been no request by any minister or government for the AFP to conduct any surveillance. In fact, our operational independence would prohibit that from happening.
Senator WRIGHT: So potentially—because I do not have a clear answer as to whether it has actually occurred at this stage—this surveillance would very possibly be on Australian citizens?
Mr Negus : The broad range of our surveillance activity is predominantly on Australian citizens, yes.
Senator WRIGHT: Thank you. It certainly could potentially involve surveillance of Australian citizens who have not ever been charged with any criminal activity.
Mr Negus : Yes, it could.
Senator WRIGHT: Thank you. Have any protests by environmental activists ever caused actual disruption to electricity supply in Australia to your knowledge?
Mr Negus : I do not know. Of course, many of these demonstrations would be based around state and territory police responses as well as the AFP. So not to my knowledge, but again we can certainly take that on notice.
Senator WRIGHT: Thank you; I would appreciate that. I suppose what I will ask you to take on notice—because you have not been able to give me a definitive answer about whether there has been surveillance of this kind to date—is, if indeed you are of the view that that has occurred or you come up with that information, the total cost of such monitoring and surveillance.
Mr Negus : We will take that on notice. Again, if—and it is a big if—that has occurred, it would be very minor, because this is not something that we would do very much at all.
Senator WRIGHT: I have heard about the extensive array of duties that you have, so that would be interesting to know. Again I will ask you, if indeed there has been this kind of surveillance, to look at the last five years and take on notice whether or not the intensity or resourcing of those sorts of operations has increased in the last five years and, if so, by what percentage the costs have increased over the past five years, from 2007 to 2012. Could that be compared with 2002 to 2007. Thank you.
Mr Negus : Yes.
Senator WRIGHT: Just coming to the information that you gave earlier that your understanding is that private contractors have been used to conduct operations to monitor environmental activists and protesters, you said you would be able to give some information about how that comes about and what the processes are there.
Mr Negus : Certainly. You have limited your question to environmental activists or protesters, but we have a contract with a company that provides us with reports on open-source information. Open-source information, or open-source monitoring, sounds like a very clandestine type of environment, but really this is just publicly available information. This particular company—NOSIC, as it has been known—provides a service where it would collate that material and provide us with a daily report on things that it would pick up in the media or on the internet which may be of interest to law enforcement. That is not provided in real time; it is a daily report where the past 24 hours is provided. We have had a contract with them since 2002. It costs us just under $100,000 a year to have that contract. My intelligence officers tell me that if we were to try to undertake and perform that role ourselves, it would take at least four analysts and it would cost in excess of $400,000 per year just to scan what publicly available information is out there.
As I said, this is in the interests of protecting Australian high office holders and foreign dignitaries, and anticipating any criminal offences that might occur in that regard. It is a longstanding contract—we have had it in place for around a decade. In looking at it, I am satisfied that it does not infringe upon anyone's privacy. Again, you or I could sit on our internet at home and examine the same information, which is publicly available. It collates them into areas of interest—the same as Media Monitors services and other things like that are done in the broader environment. That is all I wanted to say about that. I am happy to answer any questions.
Senator WRIGHT: Thank you for that information. I come back to the qualification you put there—apart from high office holders and so on—where there is an anticipation of criminal offences. I understand that there has been some investigation by perhaps the Attorney-General's department about whether the range of criminal offences is adequate to cover the concern raised in the media about potential disruption to energy supplies. This was apparently the impetus for some of this information we have come across. This would suggest that at the moment there are not criminal offences in existence considered to be adequate for instance, in which case I am interested in anticipated criminal offences. Is it broader than that? Would you be considering surveillance for it and asking NOSIC to investigate it? Is it broader than just specific potential criminal offences that may be committed.
Mr Negus : This is a broad sweep of, as I said, publicly available information. We do not specifically task them with looking at a type of criminal offence per se. These are things that may be of interest to general law enforcement—really keeping tabs on what is happening in that protest community. As I said, our protection liaison officers are out there speaking to these communities. They are making very overt contact with them on a weekly basis to try to understand what is happening and to work with them to achieve those outcomes. Again, we want to keep the public safe and make sure that nothing untoward happens along the way.
It is very much a professional relationship. They provide details of things that they may feel are of interest to law enforcement. My understanding is that they are not tasked with specific elements of what is available. It is a longstanding contract—about ten years.
Senator WRIGHT: It would then be quite feasible to think that they would be obtaining open-source information about citizens who may not have committed any criminal offence at all.
Mr Negus : They would collect what is available on the internet and in newspapers—those sorts of things—and provide it to us. This is in a macro sense. If there were any semblance of a criminal investigation that needed to be undertaken, we of course would launch that separately. We would do our own intelligence work and collection on that process. But, as I said, a criminal offence would have to be identified or it would have to relate to the protection of high office holders, foreign dignitaries or something like that.
Senator WRIGHT: Are you aware of any such monitoring by NOSIC having lead to any charges being laid or prosecutions undertaken?
Mr Negus : Given we go back 10 years with that contract, I would have to take that on notice. I am sure that over the years they have provided material to which we have value-added and it may have ended up being used in a criminal investigation. But I would have to take that on notice.
Senator WRIGHT: I ask you to take one last matter on notice; that is, details of the number of successful prosecutions that have resulted from surveillance and/or monitoring of environmental groups specifically.
Mr Negus : Certainly. But I will put this up front: it is sometimes difficult to make a direct link between material that was provided and then ended up two years down the track leading to a particular point. There might be many steps in between. I couch it in those terms. But we will do our best to provide you an answer on that.
Senator WRIGHT: I appreciate that that could be challenging. Just for clarity: it is about not just about the surveillance by NOSIC but also surveillance and monitoring of environmental groups by AFP in your own right as well.
Senator BIRMINGHAM: Mr Negus, just a quick clarification: you indicated that you wrote to Prime Minister and Cabinet late last week. Are you able to inform us whether it is usual or common practice to go back to a complainant like that and give them the opportunity to comment on the AFP's findings?
Mr Negus : Yes, it is. We would write back to the secretary of a department which made the referral. We would quite often, as we have done in this one, provide a briefing to the secretary by one of my senior officers who would explain the report. We give them time to consider the elements of that report before they come back us when we will then decide what further action needs to be taken. Speaking to a particular department which has referred a matter is not unusual.
Senator BIRMINGHAM: And essentially it is an opportunity for them to see whether they are satisfied with all that you have done or whether they think there are further avenues that you could pursue.
Mr Negus : That is right. There are often things which will be provided in those reports which may actually ask more questions that they can assist us with, or provide them with an opportunity to make comment or explain particular elements of the report to us. That is in a general sense, but we always give them an opportunity to comment on that report.
Senator BIRMINGHAM: Lastly, just to be clear, I asked before whether you had interviewed any media organisations or outlets. To make sure that there is no point of difference here, both the tendering parties were, and are, media organisations. Was either of them interviewed?
Mr Colvin : I may be able to help you with an answer to the question that we took on notice before. We have spoken to no media organisations, including the tendering parties. We have spoken to four members of the Department of Foreign Affairs and Trade, seven members of the Department of the Prime Minister and Cabinet and one member from the Australian National Audit Office. I do stress that those people we have spoken to are witnesses and people who could assist the investigation. Those are the people we have publicly spoken to at this stage.
Senator HANSON-YOUNG: I have a couple of quick questions in relation to boat crew. There seems to be a bit of lag time between when boats are intercepted and when those who are suspected of people smuggling—who have been held in various forms of detention—are charged. Would you explain to us why there is such a lag time?
Mr Colvin : I may be able to help you with that. Regarding witness statements from those on boat arrivals and passengers held in immigration facilities across Australia, we need to get statements from both Customs and Royal Australian Navy personnel to help form a brief of evidence and to help establish that investigation. Often those people are serving at sea for extended periods of time—
Senator HANSON-YOUNG: Serving at sea? Naval personnel?
Mr Colvin : Correct. When they come back from sea they are often dispersed on leave, which is understandable, so we go to great lengths to try to expedite the process of getting their statements and information. We also generally require the services of accredited interpreters. You would appreciate that many of these passengers who are crucial witnesses to us against the crew come from a variety of backgrounds for which accredited interpreters—the key is they are accredited by the court or accredited for court purposes—are not always readily available, so there is a time lag in the investigation before such point as we make a judgment to either commence a crew prosecution or not.
Senator HANSON-YOUNG: Are all boat crew charged prior to them leaving Christmas Island to be sent elsewhere?
Mr Colvin : No, they are not. Typically, the crew will arrive and will be processed by DIAC and then they will be held in immigration detention. If the crew are assessed by DIAC to be adults then DIAC will refer that matter to us and we will commence an investigation, depending on where the crew are and also the passengers who are our witnesses—passengers could be anywhere from Curtin to Leonora to Weipa. We need to gather all of that evidence. That is the process that commences once they are referred to us.
Senator HANSON-YOUNG: Do you have an average length of time that it takes between boat interception to when a crew member is charged with people smuggling?
Mr Colvin : I do not have an average figure with me. I could take that on notice and get back to you.
Senator HANSON-YOUNG: If you could, that would be helpful. With the age determination process, do you go by the determination that DIAC makes or do you conduct your own determination?
Mr Colvin : The process changed slightly in December last year. As of December last year if DIAC makes in their judgment a determination that the crew member is a juvenile then the person is not referred to us, consistent with the prosecution guidelines of the Commonwealth as well as our discussions with DPP. We do not routinely charge a juvenile. So, if DIAC make an assessment that the person is a juvenile, then they deal with that individual through voluntary deportation. They will only refer to us a person who is an adult. Previously, however, the reason why we have the issues in relation to juvenile crew is that all crew were referred to us—
Senator HANSON-YOUNG: Before the age determination had taken place?
Mr Colvin : Correct. They may have spoken to DIAC for the purposes of a DIAC procedure. I know you have taken evidence from the immigration department about their procedures. Of course, we are bound by what the court will accept and the standards that we have to follow. If the person has identified at that early stage as being an adult and we assess that we accept that and we agree, then that person will be returned. There have been a number of those is returned. If we feel that age is contested or an issue, then we will ask the person, the member, if they are prepared to undergo a wrist examination, which is provided for under the Crimes Act. We have the ability to get a court order to get that wrist examination.
I stress that, consistent with what the Commonwealth DPP said earlier, there are a range of things that we would also offer, and that would include making inquiries with the Indonesian authorities to see if we can establish some verifiable documentary proof of their age. We also offer a dental X-ray. Dental X-rays are voluntary. I must say, I have the numbers of how many we have offered them to. We have offered them to 26 and none have agreed to take up the opportunity for a dental X-ray. That is voluntary. We cannot do anything about that. A range of investigative techniques to help inform whether we believe the person is an adult or a juvenile.
Senator HANSON-YOUNG: I am a little bit confused. The current situation is that DIAC will only refer to you those crew who they believe to be adults?
Mr Colvin : Correct.
Senator HANSON-YOUNG: You do not do any investigation until after that process is undergone?
Mr Colvin : Correct.
Senator HANSON-YOUNG: Last night, when I was questioning the department of immigration, they said that, if there was information available that the AFP had collected—that is, X-rays—then they would use that in their age determination. Why would you collect the X-rays if you had not yet been referred the clients?
Mr Colvin : I am not sure what DIAC were referring to. We do not start our process until such time as the client has been referred to us. It may be that, once we have commenced that process and we have made our own inquiries about age determination, the information would be available to DIAC if they needed to make a reassessment. They do it for different purposes.
Senator HANSON-YOUNG: Yes, and I accept that. Who does the X-rays for you? Where do you get them done?
Mr Colvin : The only place they can be done is in Darwin. I will be corrected from behind if I am wrong on that. Then they are assessed by a medical specialist, not by the AFP.
Senator HANSON-YOUNG: Which medical specialist is that?
Mr Colvin : Dr Low, a radiologist in Perth, is currently the medical professional who is accepted by the courts. His opinion is taken as the expert opinion. We are endeavouring to get a panel of experts, but it is not the simple matter of 'You're a radiologist and therefore you are an expert in terms of reading a wrist X-ray.' There is more to it than that. At the moment we rely on Dr Low, who is a radiologist in Perth.
Senator HANSON-YOUNG: I imagine that part of the problem in getting a panel is that almost every medical body in the country disagrees with the use of wrist X-rays. That is just a comment—sorry. Why would there currently be—these are figures that were given to me by the department of immigration last night—28 minors still sitting in detention across the country? Why would they not have been deported?
Mr Colvin : Senator, I heard the evidence of our DPP colleagues. As we understand it—and our figures are slightly different and it could be a matter of how numbers are recorded and the date on which they are recorded—there is a total of 23 Indonesian nationals—and I am confining my answer just to the people-smuggling issue and illegal crew—suspected of people-smuggling offences, who are in immigration detention or correctional facilities, who are currently claiming to be minors. The figure fluctuates because it is not uncommon in a process for a minor to then claim they are an adult, and for an adult to convert and say that they are a minor. That can change a number of times in a process. This figure comprises seven people who have raised age as an issue in court proceedings—three of those, as we understand, as opposed to eight, so we just need to confirm our figures with the DPP. Three of those are in correctional facilities on remand and four have been bailed, I presume, back into immigration detention, and 16 are currently in immigration detention in the process of being voluntarily returned to Indonesia. So those 16 are not people who have come to the attention of the AFP.
Senator HANSON-YOUNG: So the immigration department's figures are 28, and I understand that there might be some different figures, one or two, between the three different offices/agencies. Sixteen of those are earmarked for deportation because they are minors?
Mr Colvin : Correct.
Senator HANSON-YOUNG: Do you have any figures on how long it takes before somebody is identified as a minor and deported back to Indonesia, seeing that you cannot charge them anyway?
Mr Colvin : No. That would be a DIAC process.
Senator HANSON-YOUNG: So you do not keep any of those figures?
Senator LUDLAM: Some of these you might need to take on notice. The Telecommunications (Interception and Access) Act 1979 report for the last financial year, that is available, showed that the AFP made nearly 23,000 applications for interception authorisations. That was not for phone taps but metadata or communications data. Can you just talk us through this? I was a bit gobsmacked, to be honest, when I realised that the total number across all agencies was a quarter of a million. Twenty-three thousand of them come from the AFP. Can you tell us what they were for?
Mr Negus : I will just introduce Deputy Commissioner Mike Phelan who has responsibility in that area.
Mr Phelan : Most of those requests would be for CCR, call charge records, and also just the normal telephone subscriber checks from all carriers in Australia. That would be the nature of those requests. They have to be signed off by a commissioned officer before they can be requested from the telecommunications carriers, though.
Senator LUDLAM: When you go through the earlier chapters of the annual report, there are breakouts by topic for intercepts and for stored communications warrants, whether for organised crime, drug offences, terrorist related stuff. They actually tell you for those categories of warrants and there is no such thing for the quarter of a million interception authorisations. Do you hold that data for the AFP and can you table it for us?
Mr Phelan : I know where you are coming from. It is possible, because obviously when we go through the authorisation, there has to be put down a Commonwealth offence as to what it is for. Whether or not they are categorised in our system, I cannot tell you that, but I can take that on notice. It may be possible, but I am not quite sure whether or not we would be able to disaggregate that data for you down to the level of detail that you want.
Senator LUDLAM: Just the degree of detail that is provided earlier in that annual report for the other kinds of warrants.
Mr Phelan : We will take that on notice and we will do our best.
Senator LUDLAM: Can you provide us with a blank form, or what the template is if I am an officer and I am needing some of this data? Can you show me what it is that I need to fill out—just a blank one?
Mr Phelan : I think we could probably provide that. That is no problem.
Senator LUDLAM: I would greatly appreciate that. How many people are in a position to sign off on those within the Federal Police?
Mr Phelan : However many commissioned officers we have in the organisation—about 300 and something, I would imagine.
Senator LUDLAM: So 300-odd people are therefore able to authorise a request, either their own or from another officer, for such an interception?
Mr Phelan : The vast majority of times they are not interceptions of stuff—there is no communications at all, it is only the metadata that sits behind those communications. And most times they would come from another officer, not themselves.
Mr Negus : Senator, they would not authorise their own requests in this regard. We are talking about officers who are at the superintendent level and above—that is the sort of commissioned officer we are talking about, so these are senior people within the AFP. Whilst 300 may sound like a lot, we do have an organisation approaching 7,000-odd people, so these people are in senior positions running parts of the organisation in which this is required.
Senator LUDLAM: That is fine. That was the sense of proportion I was trying to get. I have a follow-up to one of Senator Wright's questions about NOSIC and your slightly creepy consultancy with them. You talked in a bit of detail about open source reporting. Would you consider somebody setting up a fake Facebook account as open source? Do they do that kind of thing?
Mr Negus : I would have to take that on notice. I do not have the detail about whether that would be captured or not; I just do not know.
Senator LUDLAM: There is a difference between getting a subscription with Media Monitors and filtering that for you, googling, providing that kind of information or just doing press clippings, and effectively doing social engineering, which is arguably open source if you are of that mind—for example, setting up a Facebook account so that you can do social network mapping and then providing you with that data. I am interested to know whether they do that kind of work.
Mr Negus : I do not believe so. It is not something that has been brought to my attention. Given that we are going to break I will endeavour to get an answer to that and we can explore that when we come back.
Senator LUDLAM: All right. And just as a heads-up, when we come back from the break I will be going over the AFP's role in WikiLeaks, which I have pursued in earlier sessions.
Senator HANSON-YOUNG: I have a quick follow-up to a question from Senator Furner about the growth of people trafficking. I am wondering if you have mapped what the percentage of growth has being in the last 12 months.
Mr Phelan : I do not believe we have, but let me take that on notice and I think I will be able to give you an answer before we finish with the committee. I can certainly give you a sense of the referrals. For instance, for the full 2010-11 financial year we had 35 referrals, which led to 45 separate investigations. For this year to date we have 23 referrals, which have led to 16 separate investigations. Those numbers are fairly comparable, so it is not necessarily a trend that is increasing, but certainly the community has a concern about this. I think the public attention it gets has focused our attention.
Senator HANSON-YOUNG: Okay. Thank you.
Proceedings suspended from 15:33 to 15:49
Senator LUDLAM: As foreshadowed before the break, I have a few questions about WikiLeaks. First, I want to confirm some information that was provided last year. On the request of the Attorney, the AFP reported on 17 December 2010 that it did not identify any criminal offences regarding WikiLeaks publishing US cables. You made it fairly clear during our last conversation that you were not conducting an investigation, you were evaluating primary material to see whether there was sufficient material to commence an investigation over which you would have jurisdiction. Is that a reasonably accurate summary?
Mr Negus : I do not have the dates in front of me, but I would take that as being accurate.
Senator LUDLAM: You provided a report to the Attorney. Did the report take them through the process you undertook and your line of logic, or did you just provide advice that there was no basis on which to continue?
Mr Negus : I will have to take that on notice. I was not involved in writing that report. Given it is some time ago, I do not have access to it in front of me.
Senator LUDLAM: If you are going to take the shape of the report and what form it took on notice, I invite you to table it for the benefit of the committee, if that is possible.
Mr Negus : I would have to examine the report and see whether that is appropriate, given it was correspondence to the Attorney-General about an operational matter. I will certainly take it on notice and make that assessment.
Senator LUDLAM: That would be much appreciated. If you find that a year and a half on it could be redacted and it is appropriate to table it, that would be greatly appreciated. When did the AFP first advise other Australian entities or government departments that the activities of WikiLeaks were not illegal under Australian law?
Mr Negus : This obviously goes back some time. Unfortunately I do not have a brief on WikiLeaks in front of me. It has been some time and I am not sure whether the officers involved in the matter are in the room today. What I can say from that original assessment process is that the AFP provided some advice to the whole-of-government task force that came together to assess the implications of WikiLeaks at the very time that the matter broke in the media. But we have not referred any matters for investigation past that task force. We are currently not investigating any matters. We have said that if any matters do come up during that period of time we would re-evaluate that material to see whether any criminal offences had been committed. That has not been the case. We currently have no matters in front of us relating to WikiLeaks.
Senator LUDLAM: That is consistent; you have closed the books. Can we test whether anyone in the room could help you with the specifics of this?
Mr Negus : I am aware of the two people. One is Deputy Commissioner Drennan who is on leave at the moment. The other one is Assistant Commissioner Shane Connolly and he is not with us today.
Senator LUDLAM: Why did he not come along?
Mr Negus : He is in charge of the aviation portfolio at the moment. I am sure he is back in the office watching. If there are any specific questions, we could try and have him answer some of them and get back to us before the end of the hearings.
Senator LUDLAM: Some of these questions are a bit detailed, so I may have to take you up on that. When was the first time the AFP advised the Prime Minister's office that the activities were not or probably were not, in your view, a violation of Australian law? Was it on the 17th or was it prior to that?
Mr Negus : Again, I would have to take that on notice.
Senator LUDLAM: Did you provide that information, brief or dossier to anybody in an Australian government entity apart from the Prime Minister's office?
Mr Negus : Again, I would have to take that on notice. I am not sure if I have answered these questions before.
Senator LUDLAM: No.
Mr Negus : If I had, the answers have not changed in that regard.
Senator LUDLAM: I would not have expected that they would have. You have not answered these questions before. Has the AFP, in the course of putting the brief together, received any information about Mr Assange or any WikiLeaks associate from any foreign entity?
Mr Negus : Again, we will take that on notice.
Senator LUDLAM: This is going faster than I thought. I would like to know whether you received any information on Mr Assange or any of his associates from any Australian or foreign government department or entity. I am trying to get a sense of the degree to which due diligence was undertaken, who was communicated with and so on. Has the AFP assessed the security threats against Mr Assange or his associates, based on threats of assassination by senior US government officials or other political and media figures in the United States?
Mr Negus : We have not taken any action in relation to WikiLeaks since the original task force, as I mentioned. That was some time ago and, to my knowledge, we have not assessed the issues you raised.
Senator LUDLAM: How often does informal communication occur between the AFP and US government agencies? Have such informal communications occurred in the case of this publishing organisation?
Mr Negus : As you are aware, we have a very broad remit. Particularly in the high-tech crime space, we have almost weekly communications with the FBI and other agencies on cybercrime and those sorts of things. Transnational crime is more broadly in our scope of operations, so we talk a lot about those particular issues with international investigative agencies. In regard to Mr Assange or any perceptions you are putting forward about communication in that regard, I would have to take that on notice.
Senator LUDLAM: I am sorry, but you are racking up a great deal of homework at this point. Has the AFP obtained any records or intercepts concerning Julian Assange or WikiLeaks?
Mr Negus : I think I can confidently answer that: no.
Senator LUDLAM: Okay, there is one for the record. I am in touch with the local AFP guy in Perth. I see him pretty regularly at demonstrations and other public events that I attend, so I am aware of the protective security role that the AFP provides while I am here. Given your extensive international liaison network, what happens when I or another MP goes overseas, not on official travel?
Mr Negus : It would be up to yourself, Senator. If there were any particular risk you wanted to raise through the parliament back to our officers that you would need support or if you wanted to do anything—but on personal travel, I think we would have no involvement in what you were doing, unless there were some perceived threat by you as to your safety in a particular location, then we might be able to provide some advice to you.
Senator LUDLAM: I am not strictly referring to myself in this instance but, unless you get a call or a request for assistance, an MP travelling overseas on non-official travel is not part of your remit?
Mr Negus : No. That is correct.
Senator LUDLAM: Stepping back a little more broadly, I asked PM&C on Monday about the development of a cybersecurity strategy and the AFP's role in that. Can you tell us, in a broad sense, about recent increases in personnel or staffing on cybercrime matters?
Mr Gaughan : Specifically in relation to cybercrime, are you referring to the denial-of-service attacks and intrusions into computer type activities, not child protection matters?
Senator LUDLAM: Yes, let's treat them as two separate streams; we have done that in the past.
Mr Gaughan : We have a team of approximately 22 involved in high-tech crime investigations per se of those two areas I just mentioned. We do work closely with our state and territory law enforcement agencies as well in that particular activity. The Attorney-General's Department has done some work recently in determining what offences the Commonwealth, states and territories will investigate, and that is being done through the ANZPAA group. Mr Wilkins has been heavily involved in that. We also work reasonably closely with CERT Australia and also with Defence.
Senator LUDLAM: Since the last time we spoke, have there been any major changes in staffing or resourcing in that space?
Mr Gaughan : No.
Senator LUDLAM: Under the rather controversial Cybercrime Legislation Amendment Bill, it is established that the AFP can give a foreign preservation notice to a carrier and that it can do so if a foreign country has made a request for the preservation in accordance with section 107P. Are you increasing the scope of work in that area?
Mr Gaughan : No.
Senator LUDLAM: Are you doing anything or do you need to do anything to prepare for that bill becoming law?
Mr Gaughan : It is one of those issues where, until we actually have the law enacted, we are in a difficult situation. I think that is actually the evidence I gave to a parliamentary inquiry into that particular bill; whereby, until the legislation is in place, it is going to be difficult for us to determine how much of a resource implication that is going to have.
Senator LUDLAM: Indeed, so we do not know whether at some point people—foreign policing and intelligence agencies—are going to be beating your door down looking for preservation notices in Australia?
Mr Gaughan : As Commissioner Negus has already indicated, we already work quite closely with a number of international law enforcement agencies, particularly the US and the UK. We already have police arrangements in place for the providing of that information. I do not anticipate that the number of requests will increase. They will be different types of requests, obviously, but I do not think the actual matters that we are involved in will increase substantially.
Senator LUDLAM: I want to dodge back to the questions I was asking before the break because they relate to this and you might be able to help us out. Of the broad scope of work you do in this space, how much of it relates to copyright laws or data protection and piracy?
Mr Gaughan : We would have to take that on notice. As Deputy Commissioner Phelan indicated prior to the break, we are not sure whether or not we have that information per case, but I am aware that we are trying to obtain that information now.
Senator LUDLAM: That is great. Do you have a specific role or unit or section or expert who deals with, for example, software piracy, copyright theft and that kind of stuff?
Mr Gaughan : No.
Senator LUDLAM: Does that come under the rubric of high-tech crime?
Mr Gaughan : No, it does not.
Senator LUDLAM: So you are not offering to take that on notice. You are just telling me you do not do that work.
Mr Gaughan : It might be undertaken by the crime program but it is certainly not undertaken by high-tech crime. The crime program is Deputy Commissioner Colvin's area of responsibility.
Senator LUDLAM: It is still within the AFP?
Mr Negus : It is still within the AFP and those areas are covered under our general crime operations. Where they require the services of someone from the high-tech crime operations portfolio for technical assistance, they may go to Assistant Commissioner Gaughan's area for some support, but they would broadly be done by general investigators, with a background, who may do a range of different investigations across things like copyright.
Senator LUDLAM: If we do not have the right people here, or if or if it is within another section, can I ask you to take on notice—in as much detail as you are able to provide without creating a heap of work—how much time the AFP has taken up with pursuing those sorts of infringements in that broad example of copyright breach and software piracy.
Mr Negus : Certainly, Senator.
Senator LUDLAM: It is much appreciated.
Senator BRANDIS: I want to go directly to the events that occurred at the Lobby restaurant on Australia Day. As you know, I wrote to you last week to give you advance notice of questions on this area. You may or may not be aware that at the Prime Minister's department estimates yesterday there was evidence from officers of the Prime Minister's department that, when an event of this kind is being planned, there are at least three elements of the Commonwealth government involved. There is the Prime Minister's department—and in this case two different parts of the Prime Minister's department: the Ceremonial and Hospitality Branch and the awards branch because, as we know, it was an award-giving ceremony—the Prime Minister's office and the Australian Federal Police. There may be others as well, but for my purposes it is enough to identify those.
We were also told yesterday by the Prime Minister's department that, in the ordinary course of events, the arrangements with the Australian Federal Police are made by the Prime Minister's office rather than the Prime Minister's department. Is that right? Does that sit with your understanding?
Mr Negus : Broadly, yes. Whilst I did not see the evidence, I have heard about the evidence and there are some things that I think I might be able to clarify about the extent of the AFP's involvement in this process.
Senator BRANDIS: If you want to approach this in a discursive way, that is fine and that might actually save a bit of time. But what I would like you to address, as fully as you feel able to, is how the arrangements were made for that day, when the Prime Minister's appointment was first notified to the AFP and what steps you took to examine and secure the site. Take us from when the AFP was first contacted up to but not including the event itself.
Mr Negus : I will do that. Before we do that, can I talk about security arrangements in a generic sense and about how the process works?
Senator BRANDIS: Sure.
Mr Negus : Then I will go secondly to what the AFP did in this particular case. I just state at the outset that obviously security arrangements for the Prime Minister are subject to police intelligence and security agency methodology. I have to be very careful about going too far in this regard to divulge methodology. I am sure you would understand that. From our perspective, the Prime Minister's program is planned and developed by the PM's office, the PMO. The AFP is not consulted—I repeat not consulted—on planning domestic activities for the Prime Minister, as in venue selection.
Senator BRANDIS: Just pausing there, you are not consulted on the choice of a venue?
Mr Negus : That is correct. We understand that PM&C is consulted by the PMO in relation to some planned events and they provide advice and support in relation to matters of protocol, consistent with what you said in your opening. The Attorney-General's Department Security Coordination Branch, or SCB as it is known, coordinates the dissemination of the PM's program to relevant agencies including the AFP and state jurisdictions once it is released by the PMO. I should say that the AFP close personal protection team for the Prime Minister may be provided with a copy from the PMO. However, that is on the same time frame as it is regularly disseminated to those other agencies. Respective state and territory police are also advised by the SCB in that time frame. This is where the AFP's role comes into focus. The AFP assesses the information and ensures that adequate police resources are allocated to particular events.
Senator BRANDIS: Pausing there, Commissioner, the information that you assess, at least at this first assessment, is largely information sourced from the PMO, is it—from other agencies as well, perhaps, but largely from the PMO?
Mr Negus : Purely from the PMO. The program is provided to the AFP. We would make an assessment of the events on that program and then start a process which I will go through in a little bit more detail.
Senator BRANDIS: Again, just to clarify this, when you say 'the program', do you mean what is sometimes loosely called the 'running sheet'—the time of arrival, the way the event unfolds, the time of departure and all of that sort of thing?
Mr Negus : It is a program of events in its widest term, and again it can be detailed or it can be more broadly couched depending on what is happening. State police liaison is commenced by the AFP, so if there were a matter in Sydney then we would talk to the New South Wales police about whatever support or assistance was provided or required. Intelligence assessments around specific events and venues are commenced after that notification, and then we work out what advance site visits or those sorts of things are required throughout that process. Judgments are made by the AFP about the nature, treatment and mitigation of risks rather than the selection of venue, and it would have to be a very serious concern of the AFP about whether or not a venue is unsuitable for it to actually go back to the PMO and say, 'This is not a suitable venue,' because at most times those venues have already been selected and other arrangements put in place.
Senator BRANDIS: But you might, mightn't you? In a particular case, if you thought a venue was plainly unsuitable, you might go back to the PMO and give them some advice to that effect.
Mr Negus : Clearly. Operationally, even on the day, there have been occasions when a particular instance may have occurred. I am thinking of one in Sydney where shorts were fired around an armed robbery that was taking place in a venue the Prime Minister was going to attend. They did not attend that particular venue; an operational call was made on the day. So that is really the process from start to finish. To go back to the AFP's involvement in the particular day we are talking about—
Senator BRANDIS: Before you do, when you say that is the process from start to finish, does that mean that if you make your assessment and you do not have any problems with the choice of venue or the arrangement of the program then, other than the close personal protection staff, you do not have any further need to communicate with the PMO?
Mr Negus : There is constant communication through that process. However, in broad terms that is correct.
Senator BRANDIS: Okay.
Mr Negus : On the matter that you raised, for Australia Day, the first time the AFP was advised of the event in a close personal protection sense was on Monday, 23 January.
Senator BRANDIS: When you say 'in a close personal protection sense', are you distinguishing that from a venue appraisal sense or is it the same thing?
Mr Negus : It is the same thing.
Senator BRANDIS: Okay. Go on.
Mr Negus : The AFP was first advised by the Security Coordination Branch of the Attorney-General's Department when it distributed the Prime Minister's program on 23 January, which included the awards ceremony at the Lobby restaurant. At 1 pm on 25 January—so two days later, the day before the event—the AFP, the PMO and PM&C jointly attended the Lobby restaurant. During this visit, it was first notified that the Leader of the Opposition would also attend the event. It was also noted by the people doing the advance at that time that activities around the tent embassy were peaceful and seemed to be quite settled. I should say that, due to the 40th anniversary of the Aboriginal tent embassy coinciding with Australia Day, our protection liaison people—given that Australia Day is a significant event and obviously a number of dignitaries would attend functions—had been looking from December at the issues around the Aboriginal tent embassy.
Senator BRANDIS: This was unrelated to the Prime Minister's visit to the Lobby restaurant?
Mr Negus : It was completely unrelated to the Prime Minister's visit to the Lobby.
Senator BRANDIS: Would you please express a bit more fully what your officers were looking at in relation to the 40th anniversary celebrations of the tent embassy from December.
Mr Negus : They would just be monitoring, broadly, whether there was any protest activity anticipated—whether it was a celebration, as I think it was characterised in much of the publications that went out round this, rather than a protest per se. I think they would just be looking at working with Aboriginal groups with regard to how the event was going to unfold, whether there would be any public safety concerns and, more broadly, how the event would take place.
Senator BRANDIS: I infer that the AFP would not have been focusing its mind on this tent embassy event as early as December, the previous month, if it was not conscious of the possibility that there might be problems.
Mr Negus : It is probably overstating it but I think, given it was the 40th anniversary, given there would be large numbers of people in that vicinity, given it was Australia Day and we would have a large number of dignitaries, it would only be appropriate that we would work with the Aboriginal tent embassy themselves to make sure that this was a peaceful, orderly celebration. There were no other connotations put on it.
Senator BRANDIS: Okay. I suppose I am just stating the obvious now but you identified it as a 'policing issue'.
Mr Negus : That is right. On the morning of the 26th, the AFP assessed that events associated with the Aboriginal tent embassy were likely to remain peaceful, based on—
Senator BRANDIS: What time?
Mr Negus : On the morning; I do not have the specific time but during the morning.
Senator BRANDIS: This becomes a little important because the Prime Minister is to arrive at 2 pm and the running sheet starts at 1 pm, and we know from yesterday's estimates that officers of the Prime Minister's office were there even before then. So whether it is in the early, middle or late part of the morning is not unimportant here.
Mr Negus : Just one moment while I see if I can get that. Senator, our protection liaison staff—these are the people who quite overtly speak to the Aboriginal tent embassy people who are there and work out what the issues are and how the process is unfolding—were there at 10 am and provided information back to the close personal protection team that everything was peaceful and likely to remain there.
Senator BRANDIS: They did that shortly after 10 am?
Mr Negus : Around 10 am, yes. Prior to the PM's arrival at the Lobby at 2 pm there were, again, no security issues identified in relation to the Aboriginal tent embassy that would affect the ceremony at the Lobby restaurant.
Senator BRANDIS: Were there police stationed to perform a monitoring function around the tent embassy that day?
Mr Negus : There would have been police from ACT Community Policing, yes, and also people from protection liaison, who were working with the Aboriginal tent embassy group.
Senator BRANDIS: So there were two elements of your officers present at the tent embassy. Apart from the Prime Minister's close personal protection officers, were there initially any other AFP officers at the Lobby restaurant for the Prime Minister's function?
Mr Negus : Michael Outram is the assistant commissioner in charge of our protection responsibility. I might get Michael to sit in and give you some of that detail if he can.
Mr Outram : Both protection liaison—these are the officers that were assisting ACT policing—and the close personal protection team sit within the protection portfolio. Protection liaison actually provide a service internally within the AFP to close personal protection around intelligence and intelligence assessments and give them forewarning, if they have it, of any issues or risks that they might be aware of. They spoke, as the commissioner has said, at 10 am with the close personal protection team that morning and advised them that it was all peaceful and there were no issues.
Senator BRANDIS: Let me just make sure I understood that correctly. Your officers who were assigned to the tent embassy spoke to be close personal protection officers assigned to the Prime Minister at 10 am to say, 'Everything's fine, there are no problems.'
Mr Outram : That is right. So both were aware of each other's duties and tasks that day. Protection liaison maintained a presence, with ACT policing, in and around the activities around the tent embassy throughout the morning because there were some marches.
Senator BRANDIS: Approximately how many officers around the tent embassy were there from each element—that is, protection liaison and ACT policing?
Mr Outram : I do not think we can disclose that. Certainly in relation to protection liaison, I prefer not to say exactly how many officers we had there.
Senator BRANDIS: What about from ACT Policing?
Mr Outram : I do not have that information to hand.
Senator BRANDIS: That would not be a deep secret, would it?
Mr Negus : No, those people would have been in uniform, so it is not a secret.
Senator BRANDIS: I was going to say, you could count them up on the Sky News footage.
Mr Negus : But, again, they would have had various responsibilities around that district. We will try to find out how many were there at that particular time.
Senator BRANDIS: My glimpse of the TV footage suggested that, when things went pear shaped, there were some dozens of officers there.
Mr Negus : When that incident occurred and the Prime Minister and Mr Abbott were extracted from the premises, there were additional police called to that area.
Senator BRANDIS: We will get to that. I am sorry, Mr Outram.
Mr Outram : Following on later in the morning, before the Prime Minister attended the Lobby restaurant, the close protection team again attended the venue in advance to assure themselves that everything was fine. In doing that, they observed that the events at the tent embassy were peaceful. That was in advance of the Prime Minister actually attending at two o'clock.
Senator BRANDIS: Was any alcohol being consumed at the tent embassy by people present?
Mr Outram : I am not aware that there was alcohol being consumed.
Senator BRANDIS: It just strikes me that, as a matter of common sense, it must have been anticipated that this could be an emotional occasion—the 40th anniversary—and that quite a lot of people would be there and there could be no guarantees of the orderliness of the crowd, as indeed we found. How reliable an assessment made at 10 am, or indeed later on, is as a predictor of later conduct during the course of the day.
Mr Outram : Of course, we do not conduct all our assessments in isolation. I cannot give you much detail. We do communicate with other partners. The risk assessment is not just taken at 10 am on the day; there is a risk continuum, I guess. From the moment we become aware of the program, we start to assess particular events and movements if they look problematic. In relation to the tent embassy, as has been said, we had been evaluating risks since December. Protection liaison had also been working with the ACT Policing planning team since mid-January. So was not just left to 10 o'clock on the day to determine there was not a problem. But we did have, of course, eyes and ears on the ground as well to observe behaviour and to observe the temperature, if you like, of the events and the crowd. People on the ground then have to make judgments about whether they think or anticipate violence or unlawful or criminal conduct, and they did not on the morning.
Senator BRANDIS: Again, this perhaps states the obvious, but crowd moods can change very rapidly and a crowd which is evidently placid can become aggressive or even violent in a very short space of time, depending upon whether it is provoked, for example, or there are other external circumstances.
Mr Outram : As I said, there was no information to suggest that that was the case on this day.
Senator BRANDIS: No—indeed. Commissioner, do you want to take up the narrative or is that basically it up to the point at which the Prime Minister arrived?
Mr Negus : Up to and including the point at which the Prime Minister arrived, that is it, Senator.
Senator BRANDIS: That is fine. Thank you. It has been said by some that the selection of a venue like the Lobby restaurant on Australia Day, adjacent to what was anticipated to be a large crowd, was an unnecessary risk which ought to have been counselled against by your officers when you became aware of the venue selection. What do you say about that?
Mr Negus : I would say that hindsight is 20-20—
Senator BRANDIS: But your job is to anticipate—
Mr Negus : That is right.
Senator BRANDIS: That is why you make these assessments.
Mr Negus : That is right, Senator—there it is. As has been explained to you, a range of people have made assessments about the mood of the crowd, going back several months in the preparations of this process. The location of the event was conveyed to the AFP a number of days before the event took place. Assessments were made by trained professionals in this area. We had people on the ground and uniformed police from the ACT assisting. Including up to 2 pm when the Prime Minister arrived, there was no sense at all of any unrest or difficulties that might prohibit the event from going ahead.
Senator BRANDIS: And you were on the lookout for such, so as to call the event off if need be?
Mr Negus : To protect the Prime Minister—that is our primary responsibility—and any members of the public or dignitaries who would be in that environment, yes.
Senator BRANDIS: What do you say to the suggestion that the mere fact of the proximity of a large crowd on Australia Day was of itself a sufficient reason to warn against the choice of the Lobby Restaurant as a venue?
Mr Negus : As I have said, assessments were made during the morning. Assessments were made right up to the time that the Prime Minister and Mr Abbott had arrived.
Senator BRANDIS: No, I am sorry—that is not what I am really asking you. I understand fully what you have told me, but my point is a different one. There are those who say that even without assessing the mood of the crowd on the morning, the mere fact of your foreknowledge from the moment you knew that the Lobby Restaurant was going to be the venue of a prime ministerial visit on the afternoon of Australia Day—from the mere fact of your foreknowledge, that you had been thinking about since December that there was going to be a large crowd at the Tent Embassy just next door to the Lobby Restaurant—that of itself, when you first became aware of the venue selection on the 23rd, ought to have rung alarm bells. Those of your staff whose job it is to anticipate these events ought to have said, 'Well, if it weren't for the Tent Embassy celebrations this might be fine. But we know there are going to be a lot of people there. They might get emotional and this is an unacceptable level of risk.' What do you say about that?
Mr Negus : Those judgements were made, and the—
Senator BRANDIS: They were, were they? So those questions were assessed?
Mr Negus : These were active considerations, and active assessments that were made by the trained professionals whose duty it is to protect the Prime Minister and to provide the intelligence support to that close personal protection team. Whilst the AFP did not select the venue—
Senator BRANDIS: No, I understand that. You have made that very clear.
Mr Negus : Our job is to assess the risk, and see where there is an acceptable—acceptable—risk of the Prime Minister attending the event without any perceived threat to her or to any other person who would be attending the event. Those assessments were made. As I have said, hindsight is a wonderful thing.
Senator BRANDIS: Sure.
Mr Negus : However, there was no indication right up until 2 pm when the Prime Minister and Mr Abbott arrived that anything would go awry.
Senator BRANDIS: I suppose that there is one thing for which all of your officers can be entirely excused, and that is that I am sure nobody dreamt, or would have been expected to anticipate that the crowd would have been stirred up by an employee of the Prime Minister herself.
There are those who say that the fact that the Lobby Restaurant is largely surrounded by glass was another risk factor that ought, in all the other circumstances—and in particular with the proximity of a potentially large crowd—have been taken into account. Is that right, and was it?
Mr Negus : I cannot tell you specifically, but these people are professionals at what they do and they would have taken into account the nature of the building and the vantage points from different angles. These are professional close personal protection officers who attended the venue with the PMO and with PM&C, looked at all possible risks and made that assessment that the matter could go ahead pending the continuing assessment of the crowd with the Aboriginal Tent Embassy, as we have discussed. Those officers were in the crowd during the day, working with the Aboriginal Tent Embassy staff, and saw no reason why it could not go ahead.
Senator BRANDIS: I understand that perfectly, and your evidence could not be clearer that up to the time that the Prime Minister arrived the crowd was calm and there was no reason to anticipate trouble.
Mr Negus : That is correct.
Senator BRANDIS: But what you did not anticipate, and could not be expected to anticipate, was that somebody from within the Prime Minister's office would stir up trouble.
Mr Negus : Well, that any particular incident would stir up trouble.
Senator BRANDIS: Yes, indeed.
Coming to the incident itself: it is fairly notorious that while the Prime Minister was in the course of the medal presentation ceremony, elements of the crowd converged on the Lobby Restaurant and started banging at the glass, and the officers on the spot made an assessment that the situation had suddenly become dangerous—so dangerous that they decided to evacuate the Prime Minister from the venue urgently. That is right, isn't it?
Mr Negus : I think it would be fair to say that the situation was escalating.
Senator BRANDIS: Yes.
Mr Negus : The presence of the Prime Minister and Mr Abbott inside through the glass windows was seen as an escalating factor, and the decision was then made to remove them from that process.
Senator BRANDIS: By the way, was the presence of Mr Abbott an additional circumstance, or would you have taken the same measures if it had just been the Prime Minister alone?
Mr Negus : As I mentioned earlier, we were notified the day before that Mr Abbott would be attending. We would have taken the same measures.
Senator BRANDIS: So that was not an additional risk factor, as it were. The level of security that you provide to the Prime Minister is presumably the highest level of security you afford to any dignitary, so that would have covered anything that would additionally have been provided to the Leader of the Opposition?
Mr Negus : That is correct, and there were obviously a range of other people there: prominent people who were receiving medals for awards that they had received.
Senator BRANDIS: Again, if you want to be circumspect about any operational matters, of course I am not going to pressure you. But can you tell us please, as well as you are able to, precisely what happened that caused the officers on the spot to make the judgment they made about the Prime Minister's security and precisely what happened from that point to the point at which she was driven away.
Mr Negus : Senator, you, and I am sure many others, would have seen most of this on television. The situation seemed to be escalating. The crowd had attempted to push through the doors of The Lobby Restaurant, causing some damage to those doors. They were banging on the glass and an assessment was made that to de-escalate the tension around the place the Prime Minister should be taken out.
Senator BRANDIS: Even though that meant interrupting the ceremony?
Mr Negus : Yes.
Senator BRANDIS: I understand that the Prime Minister was almost through the medal presentation. There were 20 medals to be presented and she was presenting, I think, the 17th. So there must have been a real sense of sudden urgency for the ceremony to be interrupted when it was almost finished.
Mr Negus : The security officers saw the protest escalating. That was the concern: that it was escalating and that if it had escalated much further then the safety of the Prime Minister could not have been assured.
Senator BRANDIS: So that is the judgment your person on the spot made: that a point had been reached beyond which the safety of the Prime Minister could not be assured.
Mr Negus : Yes. The other consideration was—and we have seen it on television as well—the banging on the glass. There were concerns by some people inside the venue about whether the glass would hold. Whether that was the case or not is subjective, but these were fairly serious circumstances which were escalating and the judgment on the ground was that to de-escalate the conflict, or the potential conflict, then the Prime Minister should be taken out of the premises.
Senator BRANDIS: Ultimately, does one person—I assume the senior officer present—make this call?
Mr Negus : Yes, they do.
Senator BRANDIS: And that is what happened this time?
Mr Negus : That is what happened.
Senator BRANDIS: That does not require the Prime Minister's consent, does it? Once you are in a potential breach of security situation like this, it is for your officer to tell the protected person what is going to happen rather than to ask permission, isn't it?
Mr Negus : Senator, in this case—and I am sure you saw it on television, as I did—the protection officer spoke to the Prime Minister and gave her some advice in regard to what their assessment of the situation was. I can say that the vast number of dignitaries that we protect would take the advice of their protection team if they thought it was serious enough. But there is a negotiated process. I am sure that they would want to talk to the Prime Minister or any other person that is being protected in that circumstance and see how they felt. In this case, the Prime Minister took the advice of the officer.
Senator BRANDIS: Yes, and I am not suggesting there was any issue about that on this occasion. You said earlier on that officers of the ACT Police were brought in as the incident escalated. Is that right?
Mr Negus : That is right.
Senator BRANDIS: Who called them in?
Mr Negus : Just while we are finding that out, Senator, we have some numbers around the ACT Police who were in the vicinity, so I will get the Deputy Commissioner to give you those.
Mr Phelan : Senator, in relation to your earlier question about the number of ACT Police, there were 14 ACT Police officers who were dedicated to the Australia Day march, which I believe was a march from the city across to the Aboriginal Tent Embassy. They remained in and around the Tent Embassy. There were additional officers who were involved in traffic duties; we are not sure how many because officers patrol, obviously. At the time of the event commencing we can assume that there were 14 officers plus a handful of traffic officers in the area. An additional 59—and that is an approximate figure; it is all I have at this stage—attended in response to the request for further police support, about which Commissioner will now answer your question about.
Senator BRANDIS: Assistant Commissioner, 59 does not sound like an approximate figure; it sounds like a very exact figure, if I may say so.
Mr Colvin : It is a figure that we have been able to get quickly. I am trying to build myself a little bit of space so, if the figure changes, I hope you will understand why.
Mr Negus : Assistance was requested by the close personal protection team, and I have just been informed as well that the Prime Minister did actually complete the medal presentation. She was mingling with the crowd when this incident escalated. I think that is consistent with the television pictures I have seen as well, that she was actually mingling when the crowd.
Senator BRANDIS: At the time the Prime Minister was evacuated had the 59 additional ACT officers arrived?
Mr Negus : No, not all of them.
Senator BRANDIS: Had some of them arrived?
Mr Negus : Some of them had arrived, yes.
Senator BRANDIS: Was there a period of time after which the senior close personal protection officer had assessed the situation as dangerous and requiring the Prime Minister to evacuate, but before the evacuation was conducted, while you were waiting for the reinforcements from the ACT police to arrive?
Mr Negus : It would be standard operating procedure for them to ensure that, whatever precautions could be taken to the protect the Prime Minister and also protect members of the public that may be in the environment, to provide the most expeditious way of removing the Prime Minister from that environment.
Senator BRANDIS: So there was a period of delay. I do not mean delay in a pejorative sense, but a period of time passed while you were waiting for the reinforcements to arrive before conducting the evacuation operation.
Mr Negus : To have something like that organised would take a period of time, yes, and organise it they did.
Senator BRANDIS: We know that Mr Abbott was also evacuated. What about Mr McClelland? He was there too, wasn't he? Did nobody give any thought to poor Mr McClelland?
Mr Negus : I cannot speak specifically on that, but I think most of the anger from the crowd had been targeted towards the Prime Minister and Mr Abbott, so I think they were the two that were going to be evacuated.
Senator BRANDIS: And Senator Lundy, I am reminded, was also there. Mr McClelland and Senator Lundy are both members of the Executive Council and under summons they are members of the government. Was no thought given to evacuating them?
Mr Negus : I am not sure what you are suggesting, Senator. Are you saying we should have evacuated them?
Senator BRANDIS: I am not suggesting; I am just asking. Of course, the Prime Minister should have been evacuated and in the circumstances Mr Abbott, being the other most senior political leader present, it was appropriate for him to be evacuated. I just wonder whether anybody thought about evacuating the other two ministers who were present, that is all?
Mr Negus : You would have seen on television, as I did, that it was the Prime Minister's request that Mr Abbott was included in the process. As far as de-escalating the potential conflict that could have been occurring, the decision was made that, by evacuating the Prime Minister and Mr Abbott, that was the best way forward. We have a close personal protection team—
Senator BRANDIS: My question was meant to be an implied criticism; I just wondered, that is all.
Mr Negus : I take it for the record, Senator, thank you.
Mr Negus : That is why put I on the record. Apart from the loss of the prime ministerial shoes in Mrs Petrov-like fashion there was no physical damage or harm done to either the Prime Minister or Mr Abbott, was there?
Mr Negus : Not to my knowledge, no.
Senator BRANDIS: You have mentioned that there was some property damage to the doors of the restaurant.
Mr Negus : That is right.
Senator BRANDIS: Once the Prime Minister's car had left with Mr Abbott as well in the car, that was the end of the incident from a personal protection point of view, was it?
Mr Negus : Yes, they would have taken them to a safe location. It has been publicly stated by the Prime Minister that they went to the Lodge and from there the situation was then contained by the officers who were left behind.
Senator BRANDIS: I understand that there was more than one exit from the building. Is that right?
Mr Negus : I understand so, yes.
Senator BRANDIS: I am also told that the exit that was chosen was indicated by the Prime Minister herself as her preferred exit route. Is that right?
Mr Negus : I am unable to confirm that. It is not something I have been briefed on.
Senator BRANDIS: Could you take that on notice, please?
Mr Negus : Certainly.
Senator BRANDIS: Presumably on occasions like this the task is to get the dignitary out as quickly and safely as possible rather than necessarily from an exit that they, for whatever reason, might choose to draw attention to the event.
Mr Negus : Mr Outram has just indicated to me that the team leader of the close personal protection team had decided the point of exit.
Senator BRANDIS: I see. And that was the one.
Mr Negus : And that was the one that was used for operational reasons.
Senator BRANDIS: Thank you. As I was saying a moment ago, once the Prime Minister's car had departed, was that the end of the incident from a security or protection point of view as far as you are concerned?
Mr Negus : As far as protecting the Prime Minister and, consequently, Mr Abbott, yes. However, there were still some public order issues that remained at the Lobby, and that was settled.
Senator BRANDIS: That is why I said from a protection point of view. I do not want to waste any time going into those subsequent public order issues. When an event like this occurs—and the television footage, which we all saw, as did practically everybody around the world who was watching the news that night, looked pretty dramatic—presumably it is standard procedure for there to be an incident report or incident appraisal of some kind. Is that right?
Mr Negus : Yes.
Senator BRANDIS: Is there a name for it? I am just guessing at a descriptor. What is the name for the document that is generated?
Mr Negus : It is a post-operational assessment done of a major incident.
Senator BRANDIS: All right. For obvious reasons I am not going to ask you to produce that. Has that been completed?
Mr Negus : It is not complete at this time. It is still under preparation.
Senator BRANDIS: Has a full draft of that document been completed?
Mr Outram : No. What has happened is a lot of different areas have been debriefed and a lot of documents have been produced about different parts of this operation going from December right through to Australia Day itself. All that information is being aggregated into one assessment.
Senator BRANDIS: Commissioner, I am not being at all critical of the way your officers handled the situation. It seems to me that, but for a mischievous intervention, this was a calm episode and there was nothing to give you sufficient concern to advise the Prime Minister not to attend. It was entirely because of the intervention of this mischievous episode that a calm crowd was turned into a noisy, angry and threatening crowd. Is that what you make of the event?
Mr Negus : It was obviously an incident that turned what was a peaceful crowd into something else, and that is the subject of an ongoing investigation of which you are well aware.
Senator BRANDIS: And what you are referring to here is the stirring up of the crowd.
Mr Negus : That is right.
Senator BRANDIS: Thank you. When do you expect to have that major incident assessment report completed by? Roughly—I do not want to hold you to a deadline.
Mr Negus : We have taken somebody senior offline to coordinate that, so we are expecting that within the week.
Senator BRANDIS: All right. Thank you.
Mr Negus : I should say for the record that there are a range of debriefs conducted under an incident like this, from ACT Policing through to the close personal protection team, and any lessons that could be learned from instances like this are automatically relayed to the teams and individuals involved. I do not want to give the impression that this takes a month to settle down and see what happened. I understand that you might understand that; but, for the record, there have been a range of actions taken as well as reviews of the actions of the AFP to make sure that everything was done in accordance with standard operating procedures and to the best of our ability.
Senator BRANDIS: Yes. Let me again for the record make it clear. As you know from previous estimates, I am not afraid to criticise the performance of your officers where I think it is warranted. But I make no criticism of the way in which your officers conducted themselves on this occasion, because I do not think anybody could have anticipated the idiocy that caused this crowd to become dangerous.
Mr Negus : Thank you.
Senator BRANDIS: I will run through a sequence of events which I think are uncontroversial. It is not controversial that the following morning of Friday, 27 January radio broadcaster Ray Hadley broadcast a story that this incident had been precipitated by one of the Prime Minister's staff. It is not controversial that at a doorstop interview in the town of Flowerdale in Victoria late that morning the Prime Minister was asked about these reports and said she knew nothing about them. It is not controversial that the Prime Minister the following day—Saturday, the 28th—held a press conference in which she addressed the issue. Let me read you some of what she said. She referred to the episode on Australia Day and said:
I want to take this opportunity to make some statements about events at The Lobby Restaurant on Australia Day and the subsequent resignation of one of my press secretaries Mr Tony Hodges.
To take you through the events of Australia Day firstly, Mr Tony Hodges as one of my press secretaries was in attendance at The Lobby Restaurant prior to my arrival for the event where I presented National Emergency Medals. Three other members of staff were also in attendance prior to my arrival doing various duties associated with the event.
Journalists were waiting there, as is to be expected for an event where I was to be in attendance, medals were to be presented and the Leader of the Opposition was to be in attendance as well.
Mr Hodges spoke to the journalists there; Mr Hodges was advised by the journalists there that Mr Abbott that morning had made a statement in relation to the tent embassy in Canberra and that Mr Abbott in relation to the tent embassy had suggested that people should move on.
Mr Hodges, having received this information from journalists waiting at The Lobby Restaurant, formed the view that these comments should be responded to.
Mr Hodges then contacted the office of Mr Chris Bourke. Mr Chris Bourke is the ACT Minister for Indigenous Affairs, Mr Bourke is himself an indigenous Australian.
Mr Hodges was advised that Mr Bourke was unavailable for making media comment. Mr Hodges was then referred to Ms Kim Sattler of UnionsACT.
Mr Hodges spoke to Ms Sattler by telephone. Ms Sattler was in attendance at the 40th anniversary events for the tent embassy. Mr Hodges accurately conveyed to her the statement made by Mr Abbott.
At no point did Mr Hodges say to Ms Sattler that Mr Abbott had suggested that the tent embassy be torn down or removed in any way. Mr Hodges suggested to Ms Sattler that it may be appropriate for Ms Sattler to arrange for a couple of indigenous Australians who were spokespeople to be in attendance at The Lobby Restaurant for the purpose of responding in the media to Mr Abbott’s remarks, especially if Mr Abbott determined to hold a press conference associated with the event.
Mr Hodges, in taking these actions, acted alone and his actions were not authorised. Clearly they are viewed by me as unacceptable.
To pause there, I have read out the whole of the first page or so of the Prime Minister's transcript without any omission because I do not want anybody to suggest I am taking anything out of context.
It is uncontroversial that the Prime Minister said that and identified Mr Hodges as the person who precipitated the chain of events by his telephone conversation with Ms Sattler. She asserted—wrongly—that Mr Hodges had accurately conveyed what Mr Abbott had said. That ran in the news on Saturday night and became something of a cause celebre over the weekend.
Would you please have a look at this press report, Mr Negus. There are copies for the committee. This is from the Canberra Times on Monday, so it is after the Prime Minister's press statement that I have just read to you. It was Monday morning, 30 January. I want to take you to the bottom of the page I have reproduced and the very end of the article. The last paragraph of the left-hand column says this:
The AFP has already spoken to Ms Sattler and others and it has no plans to investigate the matter. A spokeswoman said yesterday—
that is, on Sunday—
that police had no evidence of criminal activity.
''The Australian Federal Police can confirm it became aware of information concerning the alleged disclosure of information about the location of the Leader of the Opposition Mr Tony Abbott on Australia Day,'' she said.
''The AFP subsequently evaluated the information and found no evidence of criminal activity. As such, the AFP will not be investigating the matter.''
That was said at an unspecified time on the previous day, that is the Sunday. Had the police spoken to Mr Hodges at the time the spokeswoman said that? There is no indication that they had.
Mr Negus : I will just take some advice. I was actually on leave until the Monday—I came back to work on Monday to this so I was not actively involved in this process. I think that the AFP had made some judgments based upon what was the publicly available information at that time. We had certainly spoken to Ms Sattler. We had not spoken to Mr Hodges at that time.
Senator BRANDIS: Commissioner Negus, I do not think that it is controversial that if an offence was committed by Mr Hodges, or indeed by Ms Sattler—but let us focus on Mr Hodges for the moment—in particular either the offence of incitement of an affray or the offence of procuring or attempting to procure the incitement of an affray, then that offence would have been entirely constituted by what he said to Ms Sattler. Now I am not saying that Mr Hodges did commit an offence, but when an affray occurs as a result of a crowd being excited by words and those words have been provoked or encouraged by another person, in this case Mr Hodges, then there is always the possibility that there has been the procurement of the offence of incitement to affray. My question to you is: how could the spokeswoman for the Australian Federal Police have asserted that there was no evidence that a crime had been committed without having at least knowledge of what Mr Hodges's account of the events was. We know that Ms Sattler had been spoken to, and I will return to that, but it would be appropriate investigative practice, would it not, if the criminality or innocence of conduct consists of a conversation and the words used in the conversation, to speak to both parties to the conversation before arriving at a conclusion?
Mr Negus : I will take you back to the article which you have circulated. The actual quote from the spokeswoman says:
''The Australian Federal Police can confirm it became aware of information concerning—
and this is the important part—
the alleged disclosure of information about the location of the Leader of the Opposition Mr Tony Abbott on Australia Day,'' she said.
''The AFP subsequently evaluated the information and found no evidence of criminal activity—
and that comment relates specifically to the alleged disclosure of information about the location of the Leader of the Opposition, and whether that would be a disclosure of information which would have some protection afforded to it.
Senator BRANDIS: All right. That is a very important observation. Are you telling the committee that on the broader issue that I have, that I first raised with you in my letter to you on 30 January and have now raised with you here this afternoon, on whether a different offence may have been committed by Mr Hodges, you have reached no conclusion in relation to that matter?
Mr Negus : We have reached no conclusion in relation to that matter. You wrote to us on 30 January outlining a range of possible offences that may have been committed. The AFP is evaluating that material. By that I mean we are looking at it and speaking to people to establish whether a criminal offence may have been committed. I can say for the record that we have already spoken to members of the Prime Minister's office and we have already spoken to members of the office of the Leader of the Opposition. We have spoken to persons present on the day at the Aboriginal tent embassy and others who may have information valuable to police, including Ms Sattler and Mr Hodges and significant other people.
Senator BRANDIS: So you have spoken to Mr Hodges?
Mr Negus : We have, yes.
Senator BRANDIS: That is very good to know.
Mr Negus : I would like to put on the record that we have also received significant cooperation from elders at the Aboriginal tent embassy who have provided us with assistance during the process, but the investigation is ongoing and it is very difficult for me to say anything further about what may have been said or what a potential outcome may be.
Senator BRANDIS: That is fine, Commissioner Negus, that tells me all I wanted to know. Your executive assistant Tamerra Mackell was good enough to send me an email at 3.16 pm on 30 January acknowledging receipt of my letter to you, which I think I sent late that morning, and she says: 'This matter has been referred to Crime Operations Special References portfolio for evaluation.' I am just not sure what the distinction is between an evaluation and an investigation, but if you have interviewed all these people, including Mr Hodges, I take it that there is now an investigation going on?
Mr Negus : No. Where we receive a referral such as the letter you provided there is no clear indication of a criminal offence being committed. There is a suggestion by you that certain things should be considered and that is what we are doing. Until we form the view in our own minds that a criminal offence has been committed the matter remains an evaluation. In evaluating it we may well speak to a range of potential witnesses, we may take statements and we may do a range of other things. If we then confirm in our own minds that a criminal offence may have been committed—again, this is technical language—we may then put it into an investigation phase where things like search warrants and records of interview could be conducted with regard to particular suspects rather than just conducting an information-finding process. The matter remains an evaluation at this stage. Although we have spoken to a number of people we are still assessing what has been said and whether any criminal offences potentially could have been committed.
Senator BRANDIS: All right. So the evaluation stage includes taking statements?
Mr Negus : That is right, we speak to a range of people and where appropriate we would write that down and take a formal statement.
Senator BRANDIS: Have you taken a statement from the Prime Minister?
Mr Negus : Again, Senator, I will not go into operational detail about who we have or have not spoken to.
Senator BRANDIS: You told me you have taken one from Mr Hodges.
Mr Negus : I said we had spoken to Mr Hodges.
Senator BRANDIS: Presumably if you have spoken to Mr Hodges you have made a record of what he said to you.
Mr Negus : I have not confirmed that, Senator.
Senator BRANDIS: All right. I think I will leave it there, although I have got another short matter. A very brief topic—something completely different. Is it the AFP or ASIO that does security assessments of ministerial staff?
Mr Negus : Can you expand on what you mean by security assessments? Are you talking about personal vetting or are you talking about where there is a threat against a particular individual?
Senator BRANDIS: I am talking about personal vetting.
Mr Negus : No, it is not the AFP. We may receive requests for criminal record checks and those sorts of things as a matter of course but we do not do that sort of vetting as a matter of course.
Senator BRANDIS: So is it ASIO who does that?
Mr Wilkins : We are just checking, Senator. It might be Defence that does that.
Senator BRANDIS: All right, I will ask ASIO as well. Thank you, Commissioner.
Senator HUMPHRIES: I would like to start with an appraisal of where you are up to with the imposition of the increased efficiency dividend on the AFP. You have given evidence in previous hearings of estimates committees about the 1½ per cent, but in December that dividend was increased to four per cent. I assume the AFP is not exempt from that increased dividend.
Mr Negus : No, we are not exempt.
Senator HUMPHRIES: What does the increase in the dividend represent to the AFP's budget for 2012-13?
I think you have given evidence in previous estimates hearings about the 1½ per cent dividend. In December that dividend was increased to four per cent. I assume the AFP is not exempt from that increased dividend.
Mr Negus : No, we are not exempt.
Senator HUMPHRIES: What does the increase in the dividend represent to the AFP's budget for 2012-13?
Mr Negus : In the financial year 2012-13, it has a $24.545 million impact.
Senator HUMPHRIES: In 2012-13?
Mr Negus : Yes. Over the forward estimates, it is approximately $22 million a year after that. I have got the specific details, if you would like them.
Senator HUMPHRIES: If you could table those it would be convenient.
Mr Negus : It is probably easier to read them onto the record; there are only three. In 2013-14, it is $22.25 million. In 2014-15, it is $22.18 million. And in 2015-16, it is $22.50 million.
Senator HUMPHRIES: Thank you for that. What strategies are being developed to cope with a cut of that size?
Mr Negus : The government has provided some areas of focus for agencies, including consultants and contractors, domestic and international travel, spending on hospitality and entertainment, minimising media and advertising expenditure and also efficient and consistent delivery of training. We will be doing all of those things. We also have a committee which sits over the top of the organisation that allocates budgets per portfolio. They are taking on board a range of these issues and looking at how we might minimise the impact.
What I can say is that we are looking to limit the impact on operational staff. In an agency such as the AFP, almost 80 per cent of our funding is allocated to staffing. So, as I said, the almost $25 million next year will be an impact that we will have to look to absorb where we can. Over the last few years we have done a lot of work in limiting our supplier expenses—things like travel, vehicles and other expenditure. We are looking very hard at pushing that back into the operational front-end of the organisation. The results that I talked about before with Senator Furner have been as a direct result of that.
We have made some great strides in putting more people back on the front line and the ratios of sworn to unsworn have been changing in a favourable sense to more sworn officers who are out doing that work. Unfortunately, it is inevitable when looking at absorbing $25 million on top of pay rises—and we started voting today for an enterprise agreement, which again will have to be absorbed—that we will lose some staff in that regard. But we are doing whatever we possibly can to minimise those losses on the front line.
Senator HUMPHRIES: You have two exercises, which are both likely to result in the loss of staff. If the offer to members that is on the table at the moment—the enterprise agreement, which of course is mark II—were accepted, what would that entail in terms of additional cost to the AFP over the next four years?
Mr Negus : It is $250 million over the forward estimates, over four years. I should say, though, that, in working with the unions to come up with a reasonable offer, in the last decade the AFP has paid four per cent as a pay rise. That has been consistent over the last decade. What is on offer in this one is less than that. In fact, it is four per cent in the first year but then three per cent, 3.5 per cent and 3.5 per cent. So it is less than our members have been used to over that period of time. Again, taking into account what the future holds as far as the budget position, we have tried to be reasonable in that context and the unions have been supportive in that regard.
Senator HUMPHRIES: That is $250 million over four years, plus $22 million to $25 million per annum for the efficiency dividend increase. I assume that it does not include the base efficiency dividend of 1½ per cent. You are looking in excess of $100 million a year that you have to find. It is almost inevitable that there will have to be reductions in staffing establishments out of all of that.
Mr Negus : Yes, there will be staff reductions. It is a matter of trying to limit those on the front line of the organisation. One of my deputy commissioners has a project called the 'strategic alignment review', which is looking at spans of control and structures and those sorts of things. We have a set of strategic principles by which we run the organisation to minimise duplication and additional support costs that may be there. So there are a range of different strategies that we are now putting in place to, again, minimise; but there will be some staff losses accordingly throughout that process.
Senator HUMPHRIES: Are you confident that those staff losses will not involve the loss of sworn members?
Mr Negus : I cannot say that categorically. As I said, what we are endeavouring to do is to minimise that. Certainly over the last few years, whilst there have been some sworn members who have left the organisation who have not been replaced, we are still well ahead of our target in the 500 initiative that the government promised at the 2007 federal election. It has been deferred but we are ahead of the target and where we were. So we are still in better shape than we would otherwise have been.
Senator HUMPHRIES: What did you say had been deferred?
Mr Negus : In the 2007 election, the government provided a commitment of 500 sworn officers to the AFP.
Senator HUMPHRIES: Additional?
Mr Negus : Additional. That was to be over five years and they were to be in levels of, I think, 30 in the first year, 30 in the second year, then 40, then 200 and 200 in the final two years. The final two years of that have been deferred to—Mr Wood will have the details for me, but I think it is 2013-14, 2014-15. So it has been deferred by two years. But, because of the actions we have taken in looking to minimise expenditure in those other areas I have just talked about, we are actually about 140 to 150 officers ahead of that target, just by channelling that funding back into more staffing.
Senator HUMPHRIES: You mentioned that the new enterprise agreement had been put out to members today. They have two weeks to vote on that?
Mr Negus : Ten days.
Senator HUMPHRIES: The last agreement was rejected. I understand that there were concerns expressed that some members were going to see losses of allowances and reduction in net income ranging between 22 and 33 per cent of their income. Does this new offer entail setbacks or losses of that order to members of the AFP?
Mr Negus : We have recast some of this. I want to be very clear about the language here about losses, because what we are talking about here is composite payments, which are not part of people's base salary. If people are expected to work flexibly and work different shifts around different timings, then they are paid a 22 per cent composite. What we have done is tightened the eligibility criteria for that. The people who work the hours and work flexibly will be paid it. Those who do not are not entitled to it so therefore it will be taken away. In this latest offer, I think there still are 400-odd people who will have their eligibility for a composite reassessed, and they may well lose what has traditionally been paid to them for that process. But what I am saying is that this is a right-sizing of people's salary and conditions, because, if they work the hours and work the patterns that are expected of them, then they will be paid accordingly. What we are doing is tightening up where people have been not working those periods and have been paid throughout the process. So it is not base salary. Some of the media coverage of this has, I think, inappropriately skewed the perception that this is a reduction in salary. It is not the case. This is akin to overtime and penalties, if you like. We are saying: if you work the hours and the shifts, then you will be paid accordingly.
Senator HUMPHRIES: But it is an allowance that was available irrespective of the amount of overtime, if you like, that was worked—
Mr Negus : That is right. It was a professional allowance—
Senator HUMPHRIES: so it inevitably gets added into the base salary, doesn't it? People see it as part of their salary package.
Mr Negus : People can perceive it as that, but it is at risk, because you may not be working in the areas that are required to do that. Not all the organisation works 24 hours a day; some people work Public Service hours, and those people are not entitled to a composite payment. Over time, these lists get somewhat contaminated as people move around the organisation, and this is a correction of those issues rather than anything else. We have been working closely with the Australian Federal Police Association. We have given the members concerned an opportunity to put their case forward about how they are working and what they are doing. That process is underway. I have said to the staff that there are no fait accomplis here. We want to hear from the operational managers, we want to hear from the staff and we are happy to talk to the unions who are representing the individual interests of those people. But we do not shy away from what is a difficult thing to do but is the right thing to do.
Senator HUMPHRIES: Are you expecting the agreement to get up?
Mr Negus : I am hopeful. We have had the support of the Australian Federal Police Association, who have endorsed the offer.
Senator HUMPHRIES: They endorsed the last one too, though, didn't they?
Mr Negus : Can I say that they did not strongly endorse the last one. They are more strongly endorsing this one. We have had an opportunity to get out and talk to people about the implications of this and what it actually means for the organisation. As I have said to the organisation many times, this is about providing a balance, where we want our officers to come to work and feel like they are being remunerated appropriately but we do not want to be paying so much for a pay rise that people will lose their jobs. This is the balancing act in accordance with the sorts of issues you raised before about affording this over the longer term.
Mr Wood : Given that staff are voting at the moment, somebody who is watching this back in the office thought that we might have said 3½ per cent in the fourth year. It is three per cent in the fourth year—so four per cent, three, 3½, three.
Mr Negus : I think I might have said 3½. I doubled it up from the last one. I am not making an extra offer here! Thank you for correcting the record.
Senator HUMPHRIES: This is the place to do it. Everyone is watching; you might as well make the offer here as anywhere else! Thank you for that. Could I turn to the issue that was discussed on previous occasions to do with the MOU between the AFP—I assume it involves the AFP—DIAC and state and territory governments to do with the operation of detention centres around the country. As of the last estimates we were advised that negotiations were continuing on the effecting of MOUs with each of those governments of jurisdictions in which a detention centre operates. I assume that includes every state and the Northern Territory. Is that correct?
Mr Negus : It does. I will pass to the deputy commissioner, who has been involved in that process.
Mr Colvin : You are correct: the process is still ongoing. Basically, we are dealing with a header document, if you like, which sets the basic framework under which DIAC will operate in managing their detention facility and then what can be expected of each state and territory police. As I think I have said on the record before, each state and territory has slightly different requirements according to what they perceive and what their capabilities are. We have just recently signed the agreement with Tasmanian police, so that is an agreement between us, Tasmanian police and DIAC. DIAC are leading, but there are continuing negotiations with the other states and territories around their agreements.
Senator HUMPHRIES: So you have an MOU with Tasmania, but all the other jurisdictions are yet to have agreements finalised?
Mr Colvin : That is correct, yes.
Senator HUMPHRIES: So the agreements with other states might be different to the one that has been signed with Tasmania. There might be different terms and conditions in each jurisdiction.
Mr Colvin : That is possible, yes. As I say, each state and territory has slightly different concerns and it is a matter for DIAC, effectively, how they run their network. We are as much a client of wanting to sign these MOUs as the states and territories themselves. I would hope that they do not vary considerably because, as the one policing agency with responsibility across all of those, we have to work in and out of those different agreements. But, yes, there is the possibility that they will all be different.
Senator HUMPHRIES: It was pointed out on the last occasion that there has been an attempt to get agreements signed along these lines for at least eight or nine years—seven or eight years was the advice last time around. Would you expect that by this time next year we will have agreements signed with each of these jurisdictions?
Mr Colvin : I would hope so, yes.
Senator HUMPHRIES: I turn to the particular incident on 20 April last year at the Villawood centre, which sparked this concern. The New South Wales police expressed concern about their legal right to enter the detention centre and deal with the disorder that had broken out there. We were told that charges were being laid or had been laid against nine individuals in connection with the incident and they were appearing in November last year. There was some suggestion that additional charges might be laid. Have those additional charges been laid?
Mr Colvin : As I understand it, we have now charged 16 people in relation to the events around 20 April and those events in the following days. Those matters are currently before the court, as you would expect. I have in front of me that the next court date is a committal hearing on 2 April. I recall that you did ask where the defendants were located. Eight of them remain in Villawood, two are on the South Coast, presumably with New South Wales corrections, two are in Parklea with New South Wales corrections, three are in Silverwater with New South Wales corrections and one is in Bathurst with New South Wales corrections.
Senator HUMPHRIES: So they are all in immigration detention still?
Mr Colvin : No, the eight in Villawood remain in immigration detention; the rest are with New South Wales corrections facilities.
Senator HUMPHRIES: But they are all in correctional facilities?
Mr Colvin : I am not sure that DIAC would consider their facility a correction facility. They are in detention facilities.
Senator HUMPHRIES: Sorry—they are all behind bars. None of them are in community detention.
Mr Colvin : I am not sure that they would agree with that comment either! They are all detained in one way or another, either by the New South Wales department of corrections or by the department of immigration.
Senator HUMPHRIES: Okay. I think we understand each other. In the ordinary course of events, some of these people might have expected to have their residency status or their immigration status determined, and some of those might have been adverse determinations such that they were liable to be deported. I take it that, while these criminal proceedings are afoot, such determinations are put off, and when the criminal proceedings are determined then the other immigration proceedings begin again?
Mr Colvin : Effectively that is correct. DIAC may continue with their considerations in the background, but these people would all be on what we call criminal justice stay certificates, or stay visas, in this case, which would mean that, pending the outcome of the judicial proceedings, they would not be deported or otherwise dealt with by the immigration department.
Senator HUMPHRIES: Could we have a list of the specific charges that have been laid?
Mr Colvin : I can give you that. What I cannot say is how many against each of these charges, but if you need that we can take that on notice. But I can tell you that there are charges of riot under section 93B of the New South Wales Crimes Act 1900. There are charges of affray under the New South Wales Crimes Act 1900. There are charges of destroying and damaging property under the Crimes Act 1900, charges of destroying and damaging Commonwealth property under the Commonwealth Crimes Act 1914 and charges of destroying and damaging by means of fire under the New South Wales Crimes Act 1900.
Senator HUMPHRIES: Are the investigations and follow-up for the purposes of prosecution being conducted by the AFP or the New South Wales police?
Mr Colvin : They are being conducted by the AFP. Where we need specialist cooperation or assistance, such as with arson or fire aspects, we may seek the support of New South Wales, but these are our prosecutions.
Senator HUMPHRIES: I would have thought that under the MOU, where you are trying to get the right kind of balance between what areas AFP have expertise in and what areas state police have expertise in, things like affray would more likely to be dealt with by state police.
Mr Colvin : The difficulty is that it is not really determined on the matter of what the offence is. I should just assure the committee that, while there is no MOU—as you have said, there has not been an MOU for a long time—these matters are worked through in a very collaborative and cooperative manner with the state and territory police. Where we need their specialist support, such as for arson or for matters of sexual assault, for instance, where it is a specialist requirement that the AFP does not have expertise in, we will draw on the state police and we will negotiate with our counterparts as to who is best to take the lead. On this occasion, we have the lead with these prosecutions.
Senator HUMPHRIES: I turn to the question of the attack on the Syrian embassy in Canberra on 11 February—no, it was not 11 February; I do not have the date but I am sure you know the attack I am referring to. Have there yet been any arrests made in response to that incident?
Mr Negus : No, there have not. The attack occurred on 4 February, just for the record.
Senator HUMPHRIES: Thank you. How was the AFP informed that an attack was underway?
Mr Negus : I have a time line. It is quite a short time line, but I think it would be instructive about how events unfolded on the afternoon. Just to give you some background: the group of around 20 to 30 protesters converged on the Syrian embassy around 9.38 pm. The group forced its way into the premises and caused damage to the two front doors and front windows as well some internal property damage. There is also an allegation of some theft of some small equipment that was inside the front door area. The charge d'affaires and two other staff members were on the property at the time and they were not harmed. That is the broad basis of the incident.
The AFP's involvement began at 5.30 that afternoon. Again, the attack took place at 9.38. At 5.30 in the afternoon we received a call from a member of the public who stated that a demonstration was going to take place at 7 pm that night, from seven to 7.30, at the Syrian embassy. Seventeen minutes later—so at 5.47—the same caller, who identified himself but wishes to remain anonymous, rang police operations stating that the demonstration had been cancelled. So, again, there were two independent pieces of information from the same person, one saying that there was a demo and the second, 17 minutes later, saying it had been cancelled and it was no longer on. Our Diplomatic Protection Unit officers arrived on the site at three minutes past six, around 15 minutes after the call, and stayed on site. There was no suspicious activity at that time or any disturbance in the area or anything else. At 6.14 there was an attempt made to contact the Syrian charge d'affaires. A message was left on his phone number by our protection liaison staff. At 6.50 he returned the call-back and the message was discussed with him—that we had had a call from a concerned member of the public with information that there may be a demonstration at 7 pm at the embassy. The charge d'affaires discussed the issue with the officers, did not raise any concerns or issues—certainly did not raise any of the protest activity that had been occurring overseas at that time—and thanked the AFP for their advice. We maintained a static presence outside the Syrian embassy until 8.30 pm that night.
At 7 pm, the AFP contacted the Attorney-General's Department Crisis Coordination Centre and briefed them re the above circumstances. That was done. Ten minutes after that, at ten past seven, the AFP contacted the National Threat Assessment Centre and advised them of the calls that had been received. Again, there were discussions between those two groups as to the actions that were going to be taken with the static guard and those sorts of things. At 7.14 pm, the AFP coordinator or senior officer in the process advised that the static would remain till 8.30 and then, if nothing had been identified, given that the advice was that the demonstration had been cancelled, it would be covered by mobile patrols during the rest of the evening. They would come and do a short static period every hour or twice an hour and then they would move on.
At 8.30 the statics were released and at 9.38, as I said, the embassy was attacked. Four minutes later, the ACT police arrived. The offenders had already departed the scene at that stage, so four minutes—
Senator HUMPHRIES: The ACT police? They were the first to respond?
Mr Negus : They were the first to respond to a triple-0 call, which took place at 9.38.
Senator HUMPHRIES: Did that come from the embassy or from somebody else?
Mr Negus : We are not sure whether it was from the embassy or from a concerned citizen around the area, so I do not have that detail in front of me. About six minutes later, the Diplomatic Protection Unit members who had been doing mobile patrols of the suburb arrived. They returned to the scene. That is the sequence of events.
There were some issues happening in other parts of the world. Obviously, there was an attack in Jordan the day before at a Syrian embassy and there were attacks in Berlin and the United Kingdom on the 4th. However, in looking at when that information was first publicly available in the media—that was the first time it came through—the Berlin attack came through at about 6.30 pm. We do not have exact times, but from our assessment it was 6.30. The United Kingdom attack came at about a quarter to four in the afternoon. Those bits of critical information were not known to the AFP—or the charge d'affaires, I might add—or the other agencies at that particular time. So the assessment was made based on the phone call that was received and the second phone call that had said it was not taking place, and the appropriate security measures were put in place based on the available information.
Senator HUMPHRIES: When there are what appear to be coordinated attacks on embassies of a particular country in other parts of the world, what would the normal process be whereby the AFP would be informed about that and might develop a strategy for a possible imitation attack in Canberra?
Mr Negus : The National Threat Assessment Centre would make an assessment, if you like, and provide that information to the agencies responsible for dealing with those issues.
Senator HUMPHRIES: The National Threat Assessment Centre as in the Attorney-General's Department?
Mr Negus : It is actually housed by ASIO, but the Attorney-General's Department have the Crisis Coordination Centre, which also plays a coordination role in this regard.
Senator HUMPHRIES: Do you know if that assessment was conducted in this particular case, based on that evidence of overseas attacks on Syrian embassies?
Mr Negus : Not prior to the attack. I will just say, too, that there were a range of attacks. I have the details of them. Again, it was Jordan, Berlin, the United Kingdom, Libya, Kuwait, Greece, Australia, Egypt, Lebanon and Canada. However, Jordan happened the day before. Australia became aware of those in Berlin and the United Kingdom during the afternoon and evening, when the attacks occurred here in Australia. The others occurred subsequent to that—that is my information.
Senator HUMPHRIES: Even so, three embassies in different parts of the world all attacked on more or less the same day, the same 24-hour period—I would have thought that would have suggested that some higher level of alert was necessary for the embassy here.
Mr Negus : The fact of the matter is that the AFP were not aware of those incidents occurring overseas at the time those decisions were made.
Senator HUMPHRIES: Are you suggesting that this is an issue we should take up with ASIO?
Mr Negus : We have spoken to ASIO and to the Attorney-General's Department. They are looking at the connectivity. As I said, the charge d’affaires from the Syrian embassy was not aware that Syrian embassies had been attacked in other parts of the world and showed no concern in this regard. Even in these days of immediate communications, CNN and everything else, it takes some time to identify in this country that attacks had taken place and that had not happened during that process. We are working with the other partners involved as to how we can make sure those gaps are filled. But at the time the decisions were made about the appropriate response, the material was not available about attacks in other countries.
Senator HUMPHRIES: Are there special devices available in embassies or residences of ambassadors and the like to alert the AFP or other agencies to an immediate crisis, like a panic button?
Mr Negus : That would go into the treatment of risks in those environments. It would be not consistent across all embassies. It would depend on the threat to the embassy.
Senator HUMPHRIES: We have already had some questioning about the threat assessment that was conducted with respect to the incident on Australia Day. There was this incident at the Syrian embassy. I understand that the attack, six or nine months ago, on the Libyan embassy similarly occurred without any anticipation of what was likely to happen. Are you confident, Commissioner, that we are resourcing the exercise of anticipating or gathering intelligence about these sorts of incidents at a sufficiently serious level? Are we exposing ourselves to some danger by virtue of not resourcing well enough the exercise of determining the sorts of threats faced by key targets, particularly in Canberra?
Mr Negus : I am confident. I think that the agencies work very well together in coordinating. This is all a risk management exercise. We have a variety of embassies, particularly here in the national capital, that range from being fortified, like the US and Israeli embassies, as you would be aware, right down to the Syrian embassy, which is essentially a standing house in the suburb of O'Malley, with no walls, no protections available. Again, there have been ongoing conflicts in Syria for some time and it is a matter of ensuring that there is appropriate liaison with the embassies, that appropriate threat assessments are done, and ASIO provides expert advice in regard to that. And we deal with those appropriately. I am confident, as I said, that we can respond appropriately. We had responded appropriately based on the available information. We are now examining if there are ways to better communicate what is happening overseas and make sure our officers are afforded the availability of that information immediately rather than relying on the course of events that took place the other night, where a couple of hours made a big difference in regard to what happened. In fact, the AFP first became aware of the incidents overseas at 10 pm that night. So 20 minutes after the attack took place, the AFP were formally notified of the issues surrounding the Syrian embassy.
Senator HUMPHRIES: As you pointed out, it should not be the AFP's job to gather intelligence about what is happening overseas. It should be somebody else's job to directly get that information.
Mr Negus : You are right. The AFP plays a role in that, of course. The agencies, overwhelmingly, provide that intelligence in sufficient time for the AFP to take appropriate responses. This was an unfortunate incident in which a couple of hours of notification of what was happening overseas would have changed the conditions on the ground. My officers made those decisions based on what was happening.
Senator HUMPHRIES: Although there are what used to be Australian Protective Service vehicles that regularly patrol the diplomatic precincts, you pointed out that it was the ACT Police who were the first ones on the scene of this incident. In your opinion, have we got a sufficiently robust system in place to protect embassies at the moment? Is our level of patrolling adequate to deal with what would be regarded at this point in time as a reasonably assessed level of threat?
Mr Negus : I am confident. In fact, the vehicle that returned to the Syrian embassy only left there something like only eight to 10 minutes before the attack took place. They were there on the site. They went to look at another premises and came back. Certainly, if we had been aware of the information we now are, the statics would have been maintained outside the embassy for the entire night. In fact, they are there now. An assessment was made after the event and they remain in place now to protect the embassy in that regard. The ACT police provide a fantastic supplementary resource because, again, if they are called and they are in the area they will respond—as they did on this occasion, within four minutes of the 000 call. I have just been told that it was a member of the public, who lived in that area and saw the attack, who rang 000 rather than the embassy itself. The ACT police do respond and, again, are a great supplement—although it is not their primary responsibility.
Senator HUMPHRIES: I have some other questions, but I am happy to let other people have a go if they have questions for the AFP.
Senator XENOPHON: Commissioner Negus, I take it that before you became a senior officer you would have participated in searches and the like—that is par for the course.
Mr Negus : Yes, I have.
Senator XENOPHON: What are the standard procedures for audio and visual records being kept for a search, and when did that come into place?
Mr Negus : It has been some time since I have done this, but certainly part 1C of the Crimes Act dictates that if evidence is to be admissible in a court then it should be recorded—that is, an audio recording. The AFP tends, wherever practicable, to use video recordings as well as audio recordings. As far as the strict legislation goes, though, I think audio recording goes way back into the early 1990s, I think—1994.
Senator XENOPHON: What about video recording?
Mr Negus : Under the act, video recording is not mandatory, as I understand it. But we do use video recorders whenever possible. Audio is the component. It is not mandatory. However, if any evidence obtained during that process is to be admissible, then the courts would not necessarily admit material that was spoken without being recorded. Again, the court would use some discretion in that but, by and large, would not admit that material.
Senator XENOPHON: But the gold standard would be to have a video recording.
Mr Negus : Yes.
Senator XENOPHON: With audio, obviously.
Mr Negus : Yes, overwhelmingly that is what we do.
Senator XENOPHON: What happens when these procedures are not followed? For instance, are extra statements and the like required from agents in place of an audiovisual record, if there is one?
Mr Negus : There would have to be. As I said, this is about the admissibility of material. If that was not the case, material can be read back on to an audio or video recording at a later stage and adopted by the person who said it. So there are practices under the Crimes Act whereby, in a procedural sense, I could read to you things I am alleging you said and you would either adopt that or not. There could be statements taken or other evidence adduced from other witnesses to prove a particular point of contention.
Senator XENOPHON: Perhaps I can just point out that the camera here has nothing to do with this line of questioning—and the photographer has just confirmed that!
In relation to the whole issue of searching premises for key evidence, whether it is for drugs or for a key part of evidence in order to inform prosecution, would you expect to videotape the entire search, as much as is practicable? In other words, would you keep the camera rolling while they were going through every room of the premises?
Mr Negus : The practicalities of a search are that one video camera would traditionally be available. That would remain with the person who was the warrant holder and the person who was the occupier of the premises. Conversations between those two would be recorded on the video and audio tape. The reality, again, is that you may have five, six, seven or eight people, depending on how large the premises are, who will then go off and search various rooms of the premises. They will not be videotaped in the search process. It is routine procedure that if they were to locate something then the person who is the occupier of the house would be taken to that room and shown certain things that had been located and asked questions, under caution if necessary, as to what had been located. But we do not have a video camera for every person who is searching the house.
Senator XENOPHON: But if, for instance, someone who is searching the house finds what you are looking for—and a camera was not there at the time—would you normally go back and video that or not?
Mr Negus : Normally we would, but it is a very hypothetical question in the context of the nature of what you are searching—the conditions. Sometimes when you are searching a sock drawer you will pick up things and look at them before you even know whether they are of any value. These things are not necessarily found in situ. They are not necessarily always shown to the person. But I would say that most times they would be.
Senator XENOPHON: If I can make it less hypothetical and go back to the Kessing case—I am just keeping to my word on asking about Mr Kessing's matter—you may wish to take this on notice or you may know it: were the protocols that apply to searches and the audiovisual recording of those searches followed in relation to the search of Mr Kessing's property?
Mr Negus : To the best of my knowledge, yes.
Senator XENOPHON: If you need to take it on notice to get further information, I would appreciate it.
Mr Negus : Last time we discussed this I mentioned that I had had a senior officer review the Kessing case and look at a range of different issues to see whether there were any particular concerns about a miscarriage of justice. That was not the case. So I am confident in saying, on the back of the deputy commissioner nodding to me here, that it was followed.
Senator XENOPHON: I accept that. I think the brief of evidence makes reference to the document or report that was the subject of the charges against Mr Kessing under section 70 of the Crimes Act was found in the bathroom. That was not videotaped. Is that because it was found when the camera person was somewhere outside?
Mr Negus : We would have to take the specifics of that on notice. It is not unusual that, if it was located, it may well have been brought back to a central place. It depends on whether the person who is the occupier of the house is cooperating with the police, whether they are hostile, whether or not they are violent. I am not saying this occurred in Mr Kessing's case, but these are all considerations for the operational officers—whether you would move the person around the house or bring items to that person and then ask them questions about them.
Senator XENOPHON: When Mr Kessing got to his property that morning, the search had already been conducted. It had already been concluded or largely conducted. In those circumstances, where the occupant is not there, would that give you more time to more thoroughly videotape the rooms of the house that were subject to search or not?
Mr Negus : Not necessarily. When the occupant of the house is not there, we would seek an independent person to be present while execute the search warrant. That is part of our standard operating procedures. We would not necessarily go and enter the premises without a person in normal circumstances.
Senator XENOPHON: I want to talk about general protocols. Mr Kessing was not actually questioned at the time, was he?
Mr Colvin : I have seen the transcript of the discussion at the time. I would need to check because your comment that he was not there at the start of the search warrant does not accord with my memory. So I will check that.
Senator XENOPHON: Could you provide those documents on notice?
Mr Colvin : In relation to the transcript, it is not for me to table it. While it is a public document, it would be releasable by the court. Mr Kessing has all of this material and he could certainly agree to release it to you.
Senator XENOPHON: I just want to make sure that we are referring to the same document.
Mr Colvin : That is exactly right. I am not too sure what documents you may have seen.
Senator XENOPHON: In terms of appropriate caution, Mr Kessing said that he was never questioned about the document. Is the normal protocol to give someone an opportunity to answer questions?
Mr Colvin : Absolutely. It would be the case in all cases that an alleged offender is given an opportunity to participate in either a record of conversation or a record of interview, probably both. The distinction I draw between the two is that the conversation would be something had with the person at his premises for instance and a record of interview would be something more formal. Somebody may be invited back to police headquarters or a police station to participate. That is where he would be shown certain information and asked certain questions. I am very confident that Mr Kessing was afforded that opportunity.
Senator XENOPHON: Mr Kessing says that he clearly remembers that one of the AFP officers said to him words very close to this: 'The others have given you up. You may as well tell us what happened.' Would that approach be consistent with AFP protocols in terms of trying to get information from a suspect?
Mr Colvin : That is hypothetical question. I do not know that that was actually said.
Senator XENOPHON: If that was said, would that be within—
Mr Colvin : Not necessarily. We have a range of discussions, as the commissioner has said. Wherever possible, for us to have an admission or a comment by an alleged offender available for evidence, we need to record that conversation to the best of our ability. If it was recorded then it would be part of our evidence.
Mr Negus : Also, just to be clear, we answered one of these questions on notice where Mr Kessing had also told you that he was not afforded the opportunity to participate in a record of interview. I think we have clearly seen in the transcript that he was, so his recollection versus the transcript is not always as accurate as we would like it to be. This is six or seven years ago and I understand there has been a passage of time, but many of these issues were canvassed in court. The admissibility of all of this evidence would have been tested by the courts and Mr Kessing's defence team in the original trial and again reconsidered at the Court of Criminal Appeal. So, whilst we are more than happy to provide whatever material we can, it is very hard to go back to the specifics. None of us were involved in the particular case, and to know what was said or what was alleged to have been said is very difficult for the officers at the table.
Senator XENOPHON: Sure. To be fair—so that it is on your record—in your answers on notice to question No. 21 you say that the AFP no longer has the videotape and that it transferred it back in May 2009 to the Commonwealth Director of Public Prosecutions for potential production in the New South Wales Court of Criminal Appeal. So those documents—the audio and video tapes—are kept safely while matters—
Mr Negus : With the DPP, but we do have a transcript of those, and again this was a transcript that was presented in the court, so there is no reason to suggest that that is inaccurate.
Senator XENOPHON: I will just ask Mr Wilkins a final question on this. I take it what Mr Kessing would have access to that material in the context of his pardon application.
Mr Wilkins : Sorry, I do not understand your point.
Senator XENOPHON: The videotape and the audiotape of the search of the premises is something that is now with the Commonwealth Director of Public Prosecutions, and I think that the AFP quite properly forwarded that, perhaps on request, to the Commonwealth Director of Public Prosecutions. Would that be material that would normally be available for Mr Kessing to view through appropriate channels?
Mr Wilkins : No. I do not understand where that idea comes from.
Senator XENOPHON: Perhaps it is my fault.
Mr Wilkins : He has made an application for a pardon. That is under consideration.
Senator XENOPHON: Yes, and among the matters that have been raised with me by Mr Kessing are matters relating to the raid on his property and the search of his property. The audio and video tape of that is now with the Commonwealth Director of Public Prosecutions. It has been handed over by the AFP, and there is absolutely no criticism of the AFP for doing that; it seems quite appropriate. Is that material that would be accessible by Mr Kessing should he wish to view it?
Mr Wilkins : I think he would need to make this request to somebody, actually.
Senator XENOPHON: But, as a general rule—
Mr Wilkins : No, not as a general rule. Pardon applications are few and far between. Let us put it this way: there are no established rules about what that might look like, but one would imagine that he would put his reasons, as he has. You have advanced further questions through this chamber, which we have been taking note of, but there has been up to this point no suggestion by you or by Mr Kessing that this is some new matter. But if you want to advance that then somebody has to actually request it, I would imagine.
Senator XENOPHON: Sure.
Mr Wilkins : We would obviously take note of the discussions you are having here with the AFP in terms of what seems to be an ongoing application for a pardon. We need to come to a landing on this issue at some point.
Senator XENOPHON: I understand that, and it is not a criticism of the department. I will take it up further with Mr Kessing, and I think there may well be a formal request.
Mr Colvin : I might be able to help you there. I cannot speak for the pardon application, but it is standard practice and, in fact, is required by law that we provide a copy of the audiotape and, as soon as practicable—I have to remember the day; I think it is within seven days of a transcript having been made—that we provide that to the subject of the interview. Of course, the material would also have been—
Senator XENOPHON: Or to his counsel, presumably.
Mr Wilkins : No, we need to provide that in nearly all cases to the person who is the subject of the interview. Then to his counsel, as part of the brief of evidence, it would have been provided again.
Senator XENOPHON: I think there is an issue about whether documents were kept by his legal team, and that is something I guess beyond Mr Kessing's control.
Mr Negus : We would be more than happy, if he was to write to us, to provide at least a copy of the transcript. We would have a copy of that. The DPP holds the audiotapes. Again, he was the subject of the interview so there is no problem with us providing him with a copy; you just need to write to me and we will facilitate that as quickly as we can.
Mr Wilkins : The best way to proceed might be to ask the commissioner.
Mr Negus : Because these have been presented to the court they are a matter of public record so he could go to the court, as journalists do every day, and seek the records of the court. But I am more than happy to facilitate the process.
Senator XENOPHON: I am grateful, thank you.
Senator HEFFERNAN: I am having difficulty getting my head around how the AFP and other agencies exchange sensitive information with an agency that by way of routine negotiates the proceeds of crime with the criminals as part of their normal budgetary processes. There has been some highlighting of this, and I guess familiarity breeds contempt for the institution. Are we making progress on coming to terms with some of the risks to the improper use of sensitive information by exchanging sensitive information with the likes of the New South Wales Crime Commission, who I think are well and truly due for a bit of a clean-out from the top down? Without going into areas we should not, does the AFP have a strategy to deal with that?
Mr Negus : We are involved in a range of joint operations with a range of different agencies all around the world. The integrity of those investigations and how we communicate with them is something that is of paramount importance to us. As to the New South Wales Crime Commission, we have discussed that in this committee before. It has been subject to a review and I am sure the sorts of issues you have raised were considered. It was a substantial review of the functioning of the New South Wales Crime Commission, and I think it either is complete or is very soon to be completed. As I have said to you before, they operate within the laws of the New South Wales statute. We work very closely with them and broadly have a very good relationship with them. The previous head of the New South Wales Crime Commission, Phillip Bradley, has retired in the last few months and there is a new director there, and I think the new direction for the New South Wales Crime Commission will be determined by the review being undertaken at the moment.
Senator HEFFERNAN: But you have no normal practice of negotiating with crims for the proceeds of crime, do you?
Mr Negus : No, we do not.
Senator HUMPHRIES: A report in the Herald Sun and News Ltd outlets on 10 February referred to one of the Prime Minister's bodyguards using the Prime Minister's VIP to transport model helicopters for a business he was operating. Can you give us information about what is happening with respect to that officer?
Mr Negus : Broadly, we had a journalist who contacted the AFP seeking comment on a story he was writing, making allegations that the individual concerned had improperly used his position to transport material for a commercial process on the Prime Minister's VIP jet. Those allegations were immediately reported to our professional standards area. It was not something that had been reported internally to the AFP before that. The matter is subject to an ongoing investigation. The individual concerned has been interviewed by our professional standards are and has provided an explanation for what he sees as being the appropriate use of that as a private component of his luggage. Again, the investigation is continuing, so it is not appropriate for me to say too much more.
What I was disappointed about, and I have to say this, is that the journalist in question was told that the matter was under active investigation. He still saw fit to name the individual, therefore, I think denying the individual natural justice in providing an explanation. His name is now out there in the press for his friends and family to see that he is under active investigation by the Australian Federal Police. As I said, the matter will continue along, we treat all those issues seriously. There is no suggestion that anyone from the Prime Minister's Office or anyone else was involved in this process. The individual concerned has provided an explanation, which is now being tested by our professional standards area before we decide what action, if any, will be taken.
Senator HUMPHRIES: That was the reason I did not name the individual.
Mr Negus : I appreciate that. Sometimes common sense does not prevail.
Senator HUMPHRIES: Could I turn to the riots that have happened from time to time on Christmas Island in the last 18 months? On the last occasion I asked questions about the riot that took place over three days from 9 to 12 June involving about 100 detainees. I think I asked on notice what weapons were involved in that incident and I was advised that, at the end of the day, only one person has been charged with the use of a weapon and that weapon was rocks, although a further 22 people were originally charged in relation to the incident of which 19 are still subject, I understand, to prosecution. What is the status of those 19 prosecutions at the moment?
Mr Colvin : Senator, I am just trying to make sure I am clear as to which incident you are referring to. Could you give me the dates again?
Senator HUMPHRIES: I asked about the riot from 9 to 12 June when a group took up occupation on the roof of one of the buildings at Christmas Island. I understand there were reports that metal poles and concrete blocks were used as weapons. I asked on notice what weapons were being used and I was told it was rocks in respect of one person who had been charged. I beg your pardon, although I asked about the riots in June, the answer has come back that one person was charged with the use of a weapon during the riots in March. So, maybe we are at cross purposes. Assuming we are talking about the riot in March, can you tell me arising out of that incident, if there was only one person charged with use of a weapon, what of the other 22 originally and now 19 people involved in that incident have now been charged with?
Mr Colvin : Senator, thank you for clarifying that. It did not quite accord with what we understood. In relation to the March incidents I can say that matters commenced in court this week, I believe. In terms of the charges I will go through what charges I have here. There are charges of aggravated burglary under the Western Australian Criminal Code, burglary under the Western Australian Criminal Code, possess stolen property under the Western Australian Criminal Code, damage-destroy Commonwealth property under the Commonwealth Crimes Act, damage-destroy property under the Western Australian Criminal Code and harm or threaten a Commonwealth official under the Commonwealth Criminal Code. There are a range of different offences.
Senator HUMPHRIES: Only one person has been charged with an offence relating to the use of a weapon, is that correct?
Mr Colvin : That is correct.
Senator HUMPHRIES: The reports of that incident suggest that there were a large number of people with weapons, including metal poles and concrete blocks, but only one charge has being laid. Can you give us a reason as to why that would be the case?
Mr Colvin : Talking in general terms, because I cannot give you the specifics of an individual case, we have said two things to the committee before. One is that often the weapons are found after the event—so when searches are conducted in subsequent lockdowns that is when we find weapons that have been secreted. The other one—and you will recall, I think, that Deputy Commissioner Drennan put it on the record—is that the alleged offenders went to great lengths at times to hide their identities. Of course, criminal identity is a core component for us being able to charge somebody. So it is quite possible that we were just unable to bring to bear enough evidence actually to identify the people who were wielding particular weapons at particular times.
Senator HUMPHRIES: I think my question was originally about the riots in June, not the riots in March. Could I ask you to take on notice, unless you have the information there, how many people have been prosecuted arising out of the riots in June on Christmas Island?
Mr Colvin : The information that I have in front of me—and I will correct the record if this is not correct—is that there are no charges out of those riots.
Senator HUMPHRIES: Okay. Since the June riots have there been any other incidents on Christmas Island that the AFP have had to respond to?
Mr Colvin : There have been. In July—one month later—there was an incident on Christmas Island where a number of charges against 18 persons were brought to bear. Those matters are ongoing. Also in August last year there was a further matter. I do not have the specifics of the matter, but we have charged three people in relation to that incident. I am just confining myself to Christmas Island at the moment. Those are the only other Christmas Island ones.
Senator HUMPHRIES: When we talk about incidents we are talking about disorder incidents—incidents of a public nature?
Mr Colvin : That is correct. Looking at the offences and the charges that have been laid, they are consistent with the other riots or affrays and public order incidents that we have had.
Senator HUMPHRIES: Could you take notice to provide details of how many charges have been laid—what specific charges against what number of people?
Mr Colvin : I can give you some more on that. In relation to the events of 19 July 2011 on Christmas Island there were 18 suspects charged. Charges included unlawful assembly with an apprehension of violence or damage to property under the public order act; unlawful assembly with actual violence or damage to property under the public order act; and unlawful assembly with actual bodily harm or damage in excess of $1,500 under the public order act. Those people who have been charged are now located in a range of facilities around the country.
Senator HUMPHRIES: That is the public order act of Western Australia?
Mr Colvin : Yes. In relation to the events of 11 August 2011, which continued through to 13 August 2011, at the Northam immigration detention facility on Christmas Island there were three charges. All three people appear to have been remanded back into the custody of DIAC at that facility. Those charges related to cause harm to a Commonwealth official and destroy or damage Commonwealth property under the Commonwealth Crimes Act.
Senator HUMPHRIES: Did either of those incidents require additional AFP staff to be flown to the island?
Mr Colvin : I think we will have that answer with us, you just might need to give us a moment to get it. We have a rough deployment schedule.
Senator HUMPHRIES: Yes.
Mr Colvin : Can we come back after the break, perhaps, if you are still going to be here and get that? Otherwise we will take it on notice.
Senator HUMPHRIES: Yes, that will be fine. So there will be no incidents requiring the attendance of the Australian Federal Police since 13 August last year?
Mr Colvin : None that have resulted in charges being laid. Of course, we maintain a presence of AFP on the island and there may have been routine matters where we have been called out to one of the detention facilities for one reason or another. But in relation to significant charges of affray or public order or of that nature, no, there have been no more.
Senator HUMPHRIES: There were some articles in the Western Australian press about security at the Yongah Hill detention centre, which I gather is at Northam, and the resourcing of local police there. There were reports in publications like PerthNow suggesting that the level of Western Australian police available at that centre was inadequate even to deal with non-immigration detention centre related issues, and there apparently was a riot there recently, and so the additional burden of a detention centre with 600 detainees would constitute a security risk. Do you hold any fears about the extent to which security can be guaranteed at the Northam detention centre in light of other issues happening in that part of Western Australia?
Mr Negus : We mentioned earlier that we are in the process at the moment of negotiating with DIAC, who are the central people here and who have a contract with Serco to run the centres, and the respective state police, in this case in Western Australia. The AFP is obviously not in a position to be a first responder. The security concerns will obviously be a key component of negotiating with the Western Australian police and Serco about how to respond to particular incidents, and designing a system or structure out there that militates against those risks occurring in the first place is what we would like to see. But, from the AFP's perspective, we are not in a position to give an opinion on that because we are not there at those centres.
Senator HUMPHRIES: Who conducts the assessment of what potential policing requirements they might be for individual detention centres? This is not the responsibility of state police forces. These are federal facilities and, but for the fact that the AFP are not stationed in most of these places, the AFP would respond normally to incidents in those places. Do you conduct an assessment of what the level of security requirements might be for individual centres?
Mr Negus : In those places it would be normally be DIAC that would negotiate with the respective state police force, because they are the only first responders in those environments, as to what their capability is. It would also determine their relationship with Serco, how the centre was going to be run, the capacity of the centre—those sorts of issues would be considered. We may be consulted through that process, and in the development of all of those MOUs we are an interested party like the state police, but DIAC has the primary responsibility for negotiating those issues. The AFP is not in a position to be the first responder, therefore it does fall to the state police.
Senator RHIANNON: Mr Negus, I am interested in how you are handling Australia's anticorruption laws. How many companies is the AFP investigating for anticorruption breaches?
Mr Negus : We would not normally identify the number of investigations we have on foot. There has been some publicity today about a certain company naming themselves in referring a matter to us, and there are some others that have been well canvassed in this committee, like the Reserve Bank issues around Note Printing Australia and Securency, so we have discussed those. There are a number of investigations we have underway, two of them that have been publicly identified, but we would not normally divulge that before the committee unless it was already public knowledge.
Senator RHIANNON: Does that mean I would already have to know the company that you are investigating and then ask specific questions before you would be able to answer them—is that how it works?
Mr Negus : We can probably tell you how many of those types of investigations we have on foot, but we would not identify the company necessarily involved.
Senator RHIANNON: Can you tell me now how many investigations you have currently?
Mr Negus : Yes, we can. Deputy Commissioner Colvin will do that.
Mr Colvin : Senator, what I can give you are some figures for the 2010-11 financial year and for the 2011-12 financial year to date. In the 2010-11 completed year there was one referral received of a bribery of foreign officials nature.
Senator RHIANNON: Of what nature?
Mr Colvin : Bribery of foreign officials. Foreign bribery legislation, for want of a more general term. So far in the year to date we have received three referrals. One of those is under evaluation and I believe one is currently at investigation.
Senator RHIANNON: So one is at investigation and the other two are at the preliminary stage?
Mr Colvin : I think that is right. If that is not correct I will correct the record.
Senator RHIANNON: And Leighton offshore: is that one just at the preliminary stage?
Mr Colvin : We received that in November. I do have some information on whether it is still in evaluation or investigation.
Mr Negus : Senator, while Deputy Commissioner Colvin is finding that, it is a good point you make that the message has certainly gone out to many companies in this country that people have be very careful in business practices conducted overseas, about what they do and how they do it. We have seen an increase in the number of referrals and self-referrals from agencies or companies that find these things when they do their own audit process, which is a very good thing. We have received very good support from some of those companies in getting to the bottom of what is happening. But Australian business needs to hear the message that doing business offshore is still subject to Australian oversight and Australian law and they can be found culpable for the actions of others acting on their behalf in those other countries. It is an important message that goes out to the business community.
Senator RHIANNON: How do you get that message out to the business community?
Mr Negus : From reading updates about what is happening in particular high-profile companies and investigations. We have made a number of arrests already with regard to people involved in this Securency matter. There have been eight arrests, from memory. That is a very strong message to the business community that people can be held liable for inappropriate actions even if they are committed offshore.
Senator RHIANNON: How do you report on this in your annual reports?
Mr Negus : They would be reported as a class of offence—matters including foreign bribery. Where matters are concluded in the courts, we may also provide a commentary or an assessment or summary of the court outcome. Many of these can be long cases. I have spoken to Senator Brown in this committee before about the length of time it sometimes takes. When much of the evidence is offshore, you are dealing with a range of different mechanisms to try to have that evidence presented in Australian courts. It can take some time. This Securency matter, of which the committee is aware, has taken a number of years to get to this stage. We also coordinate our activity with a range of offshore law enforcement agencies because they have made arrests in their own country. That can also be time consuming. I can assure you we take it very seriously and, as I said, there are some strong messages there that people can find themselves facing court for allegations of this sort of behaviour.
Senator RHIANNON: So are you proactive in pursuing these cases or do you rely on a parent company, as has happened with Leighton, or somebody else providing the information?
Mr Negus : We are proactive. The reality is that most of the time companies will identify these issues before we can identify them. We have an extensive overseas network in 29 countries and we are making sure that our liaison officers are working in those countries and keeping an eye out for any intelligence about dealings and foreign dealings of Australian companies which may be caught in the scope of this. I do not want to overstate that because again this is just a general preventative message that goes out into those countries.
Mr Colvin : I will just add to the Commissioner's comment. I know we have worked with DFAT ambassadors and heads of missions in a number of posts to go to the Australian community in that country and remind them of their obligations. Clearly this is something that DFAT has led, but we are an integral part of that. In terms of that preventative space in ensuring that Australian businesses operating overseas are aware of their obligations, we have been quite active.
Senator RHIANNON: I want to ask you about the Commonwealth Ombudsman's report. You would obviously be very well aware of it. I want to ask your response to that report. I was certainly surprised at some of the findings: that you are taking more than one year to address many serious complaints from the public, issues about the percentage of complaints that are upheld. I obviously will not go into it because you would be aware of those details. As it seems as though this is not just a one-off in one year, could you outline how you are responding to this?
Mr Colvin : While Mr Wood gets the material, I can answer your earlier question on the Leighton Holdings matter. On 7 November they came forward to us and shared with us certain concerns that they had relating to potential foreign bribery. That matter was accepted as an investigation on 18 November. It is no longer in evaluation; it is an active investigation.
Mr Negus : I will pass to Mr Wood, who is the chief operating officer, to give you some material on this. He is in charge of our professional standards area. The ombudsman's report, to which you refer, does go back and comment on 2010 statistics. His observations are quite dated, but I will let Mr Wood explain what we have done in the intervening period to significantly rectify that issue.
Mr Wood : The ongoing review by the Commonwealth Ombudsman is a process we take quite seriously. As the commissioner mentioned, it relates to a period in August 2010, from memory a six-month period around that point in time. Looking at current data, at that point in time we had more than 670 matters on hand. The current figure is 370, so there has been a significant reduction if you look at contemporary data for the number of matters on hand. The first of the two main initiatives we put in place to have a quicker resolution of these matters is the commissioner appointed a panel of adjudicators rather than a single adjudicator which the previous arrangements had, so that a number of senior executive staff were trained and briefed and then able to adjudicate on matters once the investigation of the matter was complete. Second, we brought back a former senior-executive level officer on a full-time basis for a period of time to clear the backlog of cases where the investigations were complete but they required adjudication.
At the moment the workload of the area is higher than I would like it to be, but it has significantly improved from where we were at the time of the ombudsman's report. We have communicated with the ombudsman about the changes that we have made to the existing arrangements. They are aware of them and looking forward, as we are, to seeing the stats improve dramatically relative to current periods of time. We have also written to the ombudsman and asked for their support to change the categorisation of cases, so that some matters that are currently receiving a higher level of investigation in review be categorised at a lower level, and therefore be closer to the workplace and dealt with more speedily. After five or six years of experience of the system, those matters that have been categorised at a higher level probably do not need that level of investigation in review. We are negotiating to move some of the matters that previously took a longer period of time to be recategorised to a level where they can be dealt with quicker and closer to where the events themselves allegedly occurred by the local supervisors.
Senator RHIANNON: One of the documents I read was dated February 2011. I am not asking for heaps of data, but if you have data to demonstrate that things have improved I would be interested to see that the data reflects that.
Mr Wood : There are two simple data points. In January 2011, we had 675 matters on hand in professional standards. In January 2012, the number is 370.
Senator RHIANNON: I am also interested in whether there has been a shift in that trend. I notice that there were some figures for a member of the public having a complaint upheld, a very low figure of seven per cent. This figure was even lower if it was related to physical force. Has there been a shift in the figures? Has that disparity reduced?
Mr Wood : If you are looking for the disparity to be reduced there is an assumption that the disparity is not valid. I would not accept that assumption, so rather the conversation we are having with the Commonwealth Ombudsman is to ensure that there is no bias in the system that has led to that disparity. The ombudsman has not asserted that there is a bias. It is a curiosity that they are very concerned about and we understand that, but they have not actually said that there is a bias in the process which means a complaint by a member of the public is unlikely to be upheld simply because it came from a member of the public. There is work to be done on understanding why the disparity is there.
We have had some questions from Senator Humphries and others about whether members of the public, when they complain about use of force, are the people we are in the process of taking to court to charge them with the offences that occurred around the incident of the use of force, and whether they have another motivation. We do not have evidence of that, but it would be another legitimate explanation for why some of those matters are not upheld. The process of review, whether the complaint be made by one of our own members or a member of the public, is exactly the same. The process of investigation and review by professional standards is the same no matter where the complaint is sourced from. So we are working with the Ombudsman to understand better why that disparity is there, but we do not necessarily assume the disparity is inappropriate, but it should be understood.
Senator RHIANNON: Could you take on notice to provide figures to the committee for this last year? You are saying that things have improved, that the data is presented in a way to make a comparison to what appears in the latest Commonwealth Ombudsman's report.
Mr Wood : Certainly we will take that on notice. I would explain that because we have cleared a number of older matters during the period, the actual average time to resolution does go up for a time while we clear the old ones. What is of particular interest to me as the responsible manager in this area, is that new matters coming in are being dealt with more speedily at the same time as we address the backlog. But I will take that on notice and provide stats that can be compared from period to period.
Mr Negus : Just adding to that, one of the issues was with our professional standards reporting and why these timeframes had blown out to some degree. The AFP has grown fairly significantly in the last seven or eight years. I think that the professional standards regime that was in place was designed for an organisation of 2,000 or 3,000 people, but now the organisation is significantly larger than that—I think at the last point there were 6,588 staff—and we had a single point of adjudication.
That is a very good thing with regards to consistency, in having the person well trained and well versed in the issues around administrative law and natural justice and those sorts of things. However, the backlog became a real problem for us and that is why the system that Mr Wood has explained was put in place. We are very pleased now that we have managed to clear that backlog. We have redesigned the system with a panel of adjudicators, all of whom have been trained and all of whom understand the context of what we are trying to do here. That should speed up the service for everyone—the complainants, the police officers involved who would be under investigation, and the organisation more broadly—in just getting these things done. So we have redesigned the whole system structurally to ensure that it is now commensurate with an organisation which, as I said, has over 6½ thousand people.
Senator RHIANNON: Mr Negus, my recollection is that you and your colleagues have spoken to this committee previously about the AFP operations in Sri Lanka. Considering that there is now a new ambassador there, I did want to ask whether there has been any change in the activities of the AFP officers who are based with the embassy there.
Mr Negus : To the best of my knowledge—and Deputy Commissioner Colvin can probably answer this or add to my comments—we have one person based in Colombo, who is there to focus primarily on people smuggling, but also broader transnational crime issues. He has done a very good job working with the Sri Lankan authorities there in helping to mitigate the flow of Sri Lankan asylum seekers to this country. Do you want to add anything there?
Mr Colvin : We have one person there, and I think it is coming up to three years or thereabouts since we opened that post.
Senator RHIANNON: The bulk of that person's job is trying to stop asylum seekers leaving? You mentioned there were two aspects and I am just trying to understand what the priorities are.
Mr Negus : You are right, the bulk of his job is around preventing people smuggling and asylum seekers leaving on the perilous voyages we have seen that can be undertaken. But because we have only one person there, if there are other matters around transnational crime or other crime types, he would be the person we would go to to properly make those representations in Sri Lanka.
Senator RHIANNON: In working to stop people leaving the country who may want to seek asylum, considering there is only one person there, I am making an assumption—but I just want to see whether you can clarify this—that he or she is not in a position to stop those people themselves; it is more a matter that they supply intelligence to the Sri Lankan authorities. Is that how it works?
Mr Negus : Like all of our officers offshore, he has no police powers in that country and no special dispensation to actually go out and do operational work at all. He is really a facilitator of information and knowledge around what is happening in that context.
Senator RHIANNON: So it is not operational, as most of us think it is, it is collecting the intelligence and then supplying it to the Sri Lankan government?
Mr Negus : That is right, Senator, but I do not want create a perception that he is providing intelligence unreasonably in this context. It is defined as criminal intelligence around active people-smuggling investigations.
Senator RHIANNON: Thank you very much. I would like to go back to what some of my colleagues asked you about earlier with regard to NOSIC. But firstly, I would just like to ask: what operations are outsourced by the AFP to private companies or private organisations or any other body?
Mr Negus : We do not outsource any operations per se. Operations are the confine of police.
Senator RHIANNON: Or any work? Anything?
Mr Negus : It might be a long list because, as you can appreciate, we have a large IT section and a large—
Senator RHIANNON: I think you know what I mean. To try and be clearer, I obviously do not want to know who does your printing and all those sorts of things, but where it has relevance to your primary work as police officers, what private companies, organisations or any other bodies has work been outsourced to?
Mr Negus : We will have to take that on notice, but I can tell you that it is a very limited group. I do not think you were here when I answered the question before, but we pay around $97,000 a year to NOSIC to do some broad scanning of publicly available information. It is estimated that it would take four officers to do that if we were to do it in-house, which would cost us more than $400,000, so using NOSIC is quite a cost-effective way of collecting what you and I could do on our own computers right now. It is targeted at areas of interest or areas of concern for law enforcement looking at protecting high office holders and foreign dignitaries and anticipating where criminal offences may occur, and hoping to then work with protest communities to avoid them.
Senator RHIANNON: I think you mentioned earlier that they have been employed for 10 years. Is that correct?
Mr Negus : They have. We started the contract with them in 2002 and it is up for renegotiation very shortly.
Senator RHIANNON: How long does the contract run for?
Mr Negus : I am not sure of that. We have had an ongoing contract, and I am not sure whether it is every year or every five years, but it is up for renegotiation very shortly, I am told.
Senator RHIANNON: Can you take that on notice? Or is there somebody here who can supply the information?
Mr Negus : I am told it is three years and it is being renegotiated as we speak.
Senator RHIANNON: When you say 'renegotiated', does that mean it does not go out to tender again and is just negotiated with the company?
Mr Negus : Senator, I will have to take that on notice. There are quite complex arrangements about the provision of this type of information and what the field would be like if you went out to tender, and some other areas to consider, so I think it is best if I take it on notice and give you a full answer.
Senator RHIANNON: When this arrangement with NOSIC was first established in 2002, was it put out to tender then?
Mr Negus : That predates me, so I will take that on notice and provide it as part of the answer.
Senator RHIANNON: Is there just one contract with NOSIC?
Mr Negus : To the best of my knowledge, yes.
Senator RHIANNON: If that could be clarified please, take it on notice. So it is less than $100,000 that is being paid annually to them.
Mr Negus : Senator, I should correct the record: I think I said $97,000, the contract is actually $92,400 per annum.
Senator RHIANNON: Is this an Australian-based company?
Mr Negus : Yes, it is.
Senator RHIANNON: It is not a subsidiary of an overseas company.
Mr Negus : I do not have that information in front of me. I am happy to take that on notice and provide you with whatever information we possibly can.
Senator RHIANNON: Does NOSIC provide the information on a daily basis or do they give you updates according to what they or you may judge as activities that you need to monitor closely? Could you explain how that works please.
Mr Negus : They provide a daily report that is not in real-time that relates to the previous 24 hours. We could also ask them for specific reports about a specific incident if there was something we were interested in, but generally they just provide a daily report.
Senator RHIANNON: Do you check the veracity of the information that they give you?
Mr Negus : It would go into our protection liaison and protection intelligence areas. These people are working within this space all the time and are continually talking to protest groups. We have a very productive relationship with the vast majority of protest groups around the country, where we work with them to make sure that any planned protest, or any other activity, is done safely, allowing people to get on with their lawful right to protest without jeopardising public safety or any high office holders of foreign dignitaries. So it is a continual process where that material would be evaluated and tested and then worked on in the field by our investigators.
Senator RHIANNON: So you are saying that you test the information. I am asking that because the internet is such an unregulated environment.
Mr Negus : That is right. I can say quite strongly that we take nothing on face value. I think one of the pluses and minuses for police officers is that they take nothing on face value and are never surprised. So we would certainly test any of that information. If any of that information were to be used for any further legal process or anything like that, it has to be proven. We would not do that without properly testing that information.
Senator RHIANNON: Do you have certain standards like accountability and transparency methodology that you have established in your working relationship with NOSIC?
Mr Negus : It is a hard question to answer because we are talking about material that is open source or available to the public every day.
Senator RHIANNON: I would still question that. If they are on Facebook, Facebook is only on available if you are on Facebook. There are shades here, aren't there?
Mr Negus : I can set up a Facebook account here in about five minutes and go check on just about whatever I want. If people want to close that down, they can stop people from viewing their publicly-available Facebook page. What we would do is make sure that anything we or NOSIC would be looking at in that context without a warrant is publicly available. It is up to individuals whether they want to protect their own Facebook page, but if they choose to have it open for the world to see then they can expect that agencies like mine and NOSIC will use that as a legitimate investigative avenue. That is the point of the matter.
Senator RHIANNON: So when NOSIC looks at people's Facebooks to collect information to supply to you, do they go on there as NOSIC or do they go on there as an alias and become somebody's friend so they can then collect the information?
Mr Negus : I do not want to get into the technical aspects of this, but my understanding is that you can go into Google and put a particular organisation or individual into that and it will come up with whether their Facebook status is open or not. You can then choose to view. You do not necessarily have to register or go in and look and say you had been there; it is just a matter of what you can publicly view on the internet.
Senator RHIANNON: That does not actually answer the question. With a number of those Facebook pages, if you become somebody's friend—if you set up an alias or you are NOSIC and join up to that person—you will get information. That was what my question was. Is NOSIC doing it as NOSIC or is NOSIC doing it as an alias?
Mr Negus : We are trying to get some information. I think we took a similar question about the scope of that on notice from Senator Ludlam earlier.
Mr Colvin : That is right. We basically took on notice a question about whether NOSIC create an account and go on and befriend to access a Facebook page. The point the commissioner is making, though, is that, depending on how settings are set on Facebook, you do not need to create an account to look at a Facebook page. If you Google 'Senator Rhiannon' and you have a Facebook page that is open, I do not need to come in to look at it through Facebook. It is publicly available.
Senator RHIANNON: I understand that, but I think we all know there are also various levels you can penetrate to get information. My key question is whether it is NOSIC or an alias, and that is what I would ask you to answer.
Mr Negus : We will take on notice whether NOSIC actually do that.
Senator RHIANNON: Thank you. Could you take on notice or tell me now—there are a number of you here—if the AFP use aliases themselves when they are endeavouring to collect information or endeavouring to test the veracity of NOSIC's information?
Mr Negus : Specific to NOSIC I think we would just take that on notice. Broadly I can say that the AFP are not in the practice. We have our own undercover operatives who do intrusive surveillance on criminal targets. We do not need to export that capability. We are not in the business of exporting an undercover operation to a private company. This is more about the collection of information which is generally available. Philosophically I can give you that undertaking that that is what the AFP is about. How they would do that in their own way—whether they would need to log in and go to a particular point—I just do not know, and we will take that on notice, but as a philosophical position we do not export undercover operations or intrusive surveillance operations to outside companies.
Senator RHIANNON: Thank you for explaining that. I would like to ask that question again. Does the AFP use aliases to go onto Facebook or any aspect of web based interactions to collect information?
Mr Negus : You mentioned that question but included NOSIC last time. If you exclude NOSIC, the answer is we absolutely do. We save a number of children every year by doing this in the child protection operations area, where we go on and pretend to be particular individuals to rescue children from oppressive and abusive paedophiles. That work is very hard, which we have explained in this committee before, but it is something that is extremely worthwhile to the broader community and, of course, to the children involved. So, yes, we do undercover operations. Where we need to we certainly obtain search warrants and other warrants to do that, but, again, everything we do is to the letter of the law. The Ombudsman's office has just read that report. The Ombudsman reviews our use of covert identities and those sorts of things as well. There are a range of different mechanisms which ensure the AFP's accountability in this area is beyond reproach. The Ombudsman would certainly make very strong recommendations for improvement if there were anything that he or she saw that needed to be attended to, and I can assure you that that is not the case.
Senator RHIANNON: Thank you very much. As well as doing the work for tracking paedophiles and those horrendous crimes, is that style of work using aliases also used to look at the work of people engaged in protests and other peaceful activities?
Mr Negus : I have tried to give you a philosophical position. You are really asking me to step into the methodology used now by undercover operatives and that is a very dangerous, slippery slope. If you have a specific question about NOSIC, I am happy to take it on notice, as we already have with other questions. The rest of it, I am afraid, is really delving into methodology, which is very dangerous.
Senator RHIANNON: Okay, thank you very much. Do you receive intelligence from NOSIC based in any other country?
Mr Negus : I am reminded that it is open source information, so the short answer is no, but NOSIC's searches would not be confined to Australia, because the internet is obviously a global search engine. They would provide whatever information they saw as appropriate and we would consider that as part of that process.
Senator RHIANNON: So you are confident that everything that NOSIC supplies you with only comes from web based activities?
Mr Negus : No, I did not say that. I think they have a broad scope of things that they would monitor, whether it would be the internet, newspapers or publicly posted bulletins on a board in a community hall—I do not know. But it is a matter of us working with them to give us access to publicly available information. I am just not sure what your question is actually getting too.
Senator RHIANNON: Can you ensure that the gathering of intelligence by NOSIC in an overseas context is undertaken in accordance with Australian law?
Mr Negus : Yes, certainly the contractual obligations that we would include in that would be that they were not to breach any laws and certainly we would not condone that in any way.
Senator RHIANNON: Has the contract between AFP and NOSIC been publicly released or, if not, can it be publicly released?
Mr Negus : I will take it on notice. I think that would be commercial-in-confidence. I think we have given the costings figures to the Commonwealth in what we do, but, as to the terms of the contract, it is probably best if I take that on notice.
Senator RHIANNON: Thank you for that. If you determine it is commercial-in-confidence, could you explain why considering you have released some information here tonight, particularly the be-relevant one, with the amount of money that is paid to them each year? If it cannot be provided to the committee, would you also take on notice why?
Mr Negus : Yes, we will.
Senator RHIANNON: Thank you very much, Mr Negus.
Mr Negus : Chair, I think Mr Colvin has some things we can put on the record to save reporting back at a later stage, if that is okay.
Mr Colvin : Senator Humphries asked us about our deployments to Christmas Island in August 2011. I can advise the committee that we did deploy an additional 37 officers to Christmas Island in August 2011. That took our total numbers up to 109. That deployment, though, was not in response to any particular incident in the detention centres; it was almost solely in response to our preparations for, at that stage, the anticipated removal of asylum seekers to Malaysia under the Malaysian agreement. Subsequently that did not go ahead.
In answer to Senator Hanson-Young's question about the time spent in detention prior to charge for alleged crew of people-smuggling ventures, the average is 161 days. I will say that that is an average since the end of 2008, when we saw the arrival of the current wave of boats. The AFP's benchmark is 90 days. I can say that that 161 days has come down significantly. It was mostly affected by the first 18 months to two years since 2008 while we were trying to work with other agencies to get our processes in place. The longest anyone has been in detention at present awaiting charge is 145 days. That is impacted by a range of things over Christmas when the courts were closed. But I reiterate: our benchmark is 90 days—that is what we aim for—and 161 is the current average, though, spread over those four years.
CHAIR: I thank the AFP officers. We will resume with customs and border protection and then ASIO.
Proceedings suspended from 18:30 to 20:01