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Thursday, 27 May 2004
Page: 29435


Mr McCLELLAND (10:43 AM) —I want to address the issues raised by the Minister for Trade. The Australian Federal Police and Other Legislation Amendment Bill 2004 has two aims: firstly, to achieve the legislative integration of the Australian Protective Service and the Australian Federal Police and, secondly, as the minister outlined, to enable the AFP to investigate state offences that have a federal aspect. The opposition has indicated support for this legislation, both from the point of view of general criminal law enforcement and significantly—and unfortunately in this day and age—in respect of potential terrorist offences.

Firstly, we note that the process of the integration of the APS into the AFP began in 2002 when the APS became an operational division of the AFP, as outlined by the minister, and the AFP commissioner replaced the Secretary of the Attorney-General's Department as the head of that agency. The bill will complete the integration process by bringing Protective Service officers under the Australian Federal Police Act and repealing the Australian Protective Service Act. The integration of the AFP and the APS has long had Labor's support. Indeed, it was part of our commitment prior to the 2001 election. The bill amends the AFP Act to create a new agency of AFP employee protective service officer and to confer the existing functions, powers and duties of the APS on those officers.

The Public Service Commissioner will make a determination under section 72 of the Public Service Act that APS officers cease to be Public Service employees and become employees of the AFP. Under that section the transferred employees will be entitled to remuneration and employment conditions no less favourable than they enjoyed before the transfer. We again note, as the minister noted, the valuable work of the Senate Legal and Constitutional Legislation Committee. With respect to this matter and a number of other quite controversial and complex pieces of legislation, that committee, in particular in recent years, has done a truly outstanding job on behalf of the parliament overall and ultimately the Australian people.

I note that to give effect to the requirement the AFP Commissioner will make determinations under section 24 of the Public Service Act and section 27 of the Australian Federal Police Act 1979, preserving the remuneration and employment conditions currently in force under the section 170MX award as currently applying to the APS, as the minister outlined.

In terms of the Senate committee inquiry to which I have referred, the bill raises fairly complex issues of industrial law. The committee was assisted by evidence from the CPSU, representing APS officers; the Australian Federal Police Association; the Australian Government Solicitor; the Australian Federal Police; and the Attorney-General's Department. The committee welcomed the fact that employee representatives appear to have been consulted more extensively on the development of this bill than they have been in the past. I think it is fair to say that all sides approached the amalgamation, if you like, of the two bodies from a position of good faith and with a view to preserve continuity of employment conditions.

The Senate committee inquiry presented an opportunity for any outstanding concerns to be raised. I will not discuss all of those but will focus on the key issue before the committee, which was the impact of the bill on the employment, understandably, of those transferring APS officers. As I mentioned, the bill uses the machinery in the Public Service Act and the AFP Act to effect a transfer of the employment conditions currently in force under the section 170MX award under the provisions of the Workplace Relations Act. The committee recognised the desirability of all AFP staff being employed under an integrated employment framework to provide operational cohesion to the newly integrated agency, and that has to have merit. However, the committee was troubled by the uncertainty faced by APS transferees in the transitional period until a new certified agreement is negotiated to cover the integrated work force.

It emerged from evidence given by the CPSU, representing transferring APS officers, that there is still concern on the part of these officers about their capacity to maintain their safety net of remuneration and conditions and to access independent review of AFP decisions that affect employment arrangements during this transition period. There was a strong concern that the AFP would be given a free hand to make unilateral decisions altering the remuneration and conditions and that those affected would not be able to seek review of those decisions by the relevant independent authority, which in the AFP is a board of reference constituted under the Workplace Relations Act. It is not fair to the APS transferees to face such an uncertainty and it is plainly against the national interest for people tasked with such a critical protective security role to experience such a fundamental insecurity in their employment arrangements.

On these issues the committee made two relevant recommendations: firstly, that the government clarify that there are no legal obstacles to the conferral of jurisdiction on the board of reference to settle disputes over the remuneration and conditions of APS transferees and, secondly, that in light of these concerns about the employment of APS transferees the AFP report back to the committee within 12 months on the progress of the integration. In response, the Minister for Justice and Customs in the Senate, on the issue of whether there would be any legal obstacle to the conferral of jurisdiction on the board of reference, noted:

Upon examination of this issue it became clear that, given the AFP board of reference was provided for under the current AFP certified agreement, it would have no application to APS transferees at the time of transfer. However, advice received by the AFP following consultation before the Australian Industrial Relations Commission made it clear that the disputes procedures set out in the Workplace Relations Act will apply in their entirety to APS transferees.

I note that, shortly before I rose to speak, the Minister for Trade made a similar point in his speech. We take this—both the quote that I have read out and the minister's statement in the Main Committee today—to mean that, in the transitional period, APS transferees will retain full access to the Industrial Relations Commission for the full range of disputes that could otherwise be brought before the board of reference if the AFP certified agreement applied to those transferees. I would, however, ask the minister or his representative to clarify in the closing remarks that this is a correct analysis of the situation. I should note that concerns continue to be expressed to us on behalf of APS transferees about the uncertainty of their arrangements in the transitional period. I again make the point that not only is it unfair to these employees to leave them in a state of some anxiety about their future but such a situation inevitably has potential security implications, given the vital counter-terrorism role that Australian Protective Service officers fulfil. They are entitled at the very least to be assured and reassured that the employment security and conditions to which they were previously entitled will continue under the new arrangements.

Before concluding, I will again record Labor's support for the second aspect of this bill, which is to enable the AFP to investigate state offences that have a federal aspect. This refers to the situation where either the subject matter of the offence is a subject on which the Commonwealth has the constitutional power to legislate or the investigation of the state offence is incidental to the investigation of a federal or territory offence. This measure gives effect to a resolution of the April 2002 Leaders Summit on Terrorism and Multijurisdictional Crime, as was noted by the minister. It remedies the potential duplication of police resources that presently arises where the AFP and state police services need to investigate different aspects of the same criminal conduct, and it has Labor's full support. Again, through our support for this legislation in the Main Committee, we will endeavour to expedite its passage.

At this point, I will address a point made by the minister in his remarks regarding the government's acceptance of recommendations suggested by the Senate Legal and Constitutional Legislation Committee, supporting amendments that implement those recommendations. I will address the government's rejection of a minor party amendment affirming the right of the Australian Federal Police Commissioner to express an honestly held view. We do so by expressing our disappointment that the government is moving an amendment that will negate or remove that minor party amendment. In so expressing our disappointment, we do, however, recognise that the legislation is otherwise important legislation, and we will not be opposing its passage simply as a result of the government moving its amendment to negate that provision going to the ability of the Australian Federal Police Commissioner to express his honestly held view.

I will comment on that matter given that it was raised by the minister. I note that Australians will not forget the way in which Commissioner Keelty was harangued and slandered—and I think there are no other words that are appropriate for that—by Howard government ministers simply for expressing an honestly held view about the possible connection between the unfortunate Madrid bombings and the Iraq conflict. The commissioner was certainly entitled to raise in public discussions questions as to what may be a motivation for criminal conduct and indeed to canvass what may be a motivation for terrorist conduct. The public know that the government's bullying—and again it is not an understatement to use that word—had a devastating effect and led the commissioner to consider his resignation. In circumstances where Commissioner Keelty has truly been a champion on behalf of the Australian public, not only in the fight against organised crime but in particular in the fight against terrorism, that resignation, had it eventuated, would as an outcome have been a major setback for Australia in the fight against terrorism.

In seeking to remove the provision that was introduced by an amendment from the Democrats, the government has raised a few eyebrows by expressing concern, as the minister indicated, that the provision might afford protection to racially discriminatory opinions. After all, less than 18 months ago one of the government's own number, Senator Lightfoot, was found by the Federal Court to have made statements about Indigenous Australians which breached the Racial Discrimination Act. For those wanting to ascertain the facts about that case, I would refer the Main Committee to the judgment of Justice Carr in McGlade v. Lightfoot, which was a decision of the Federal Court issued on 26 November 2002 and which was not appealed.

At the time, neither the Prime Minister nor the Attorney-General, the Minister for Justice and Customs and the Minister for Immigration and Multicultural and Indigenous Affairs showed the slightest concern for Senator Lightfoot's conduct, which was found to be unlawful. But given the reasons now advanced by the government for opposing these provisions giving freedom of speech, if you like, to the police commissioner—given the minister's comments that any such racially discriminatory comments by the police commissioner, whomever that may be, would be justification for removal from office—I look forward to Senator Lightfoot's swift disendorsement by the Liberal Party for his comments.

Of course, if the government were genuinely concerned about the Democrat amendment for the reason that they have claimed, it would be a simple matter for them to move a further amendment clarifying that the freedom of speech did not go so far as to endorse or make acceptable comments that were otherwise unlawful. The fact that the government have not done so indicates that they are really only concerned to avoid the embarrassment of having to confront what was unquestionably disgraceful treatment of Commissioner Keelty every time that the parliament is required to consider amendments to the Australian Federal Police Act. We believe the government are wrong to be foreshadowing moving this amendment but again, as I have indicated, in view of the importance of completing the APS-AFP integration and giving the AFP appropriate powers of cross-jurisdictional investigation, we will not be opposing the passage of the bill.