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Legal and Constitutional Affairs Legislation Committee
Australian Commission for Law Enforcement Integrity

Australian Commission for Law Enforcement Integrity

CHAIR: Welcome. Thank you for making time to give evidence at this committee. Would you like to make an opening statement before we go to questions, Commissioner?

Mr Griffin : Not an opening statement in general terms. I thought it might be helpful if I were to directly address two issues that arose during the course of the committee's deliberations yesterday so that I can describe—

CHAIR: Be on the front foot? Sure.

Mr Griffin : And then questions can follow rather than toing and froing.

CHAIR: Go for it.

Mr Griffin : I should mention in respect of one of those issues that a person was named during the proceedings. I have to be very careful because my legislation constrains the release of information once I have it. Unless the committee require me to, I don't propose to identify the person by name. I simply refer to the fact that questions arose about them yesterday.

CHAIR: Okay.

Mr Griffin : The other issue relates to the question raised in respect of the Crown casino matter. I thought I would tell the committee what I'm doing in respect of both of those matters.

The Attorney-General, the Hon. Christian Porter, referred to me under section 18 of the act matters in connection with interactions between the Department of Home Affairs and Crown casino. Those matters were described in media broadcasts and in media articles, and there have been more of those since. We undertook, as we always do, an evaluation of the referral, which involves an intelligence work up. We then commenced investigations fairly quickly, within the week. We opened the hearing phase of the investigations on 20 August. We are gathering information in a very wide net from relevant bodies, law enforcement and anticorruption, in all the states and territories.

We will embark on the next phase of hearings next week. They will be public hearings for the first time in ACLEI's practice. We will conduct them in Melbourne next week. We've issued a release in respect of that. We've engaged on social media, but I'll repeat the request that's contained in that release, which is that we'd invite any members of the public, or indeed any members of any organisation, in possession of material that they want the commission to know about to contact us. If they go to the website, they'll find different media by which they can contact us. That can be done in confidence with the full protections that are provided under the Law Enforcement Integrity Commissioner Act.

The second matter relates to a set of complaints made by a person in immigration detention. I understand that the Department of Home Affairs have written to the committee today correcting an error that was on the record yesterday. What I can tell the committee is that that particular person raised two matters. One was indirectly, which came to us through the Department of Home Affairs in what is called a section 19 notification, where the secretary must inform me of any matter that raises a corruption issue. We received that in March and we sent it back on 2 April. We received another one, this time directly from the person concerned, in June. We again turned that around very quickly. It came in late June and we sent it back to the department in July. Why did we send them back to the department? We did so because section 16 of the act requires me to direct the resources of the commission to serious or systemic corruption.

In respect of the complaints from this person, we were able to assess them with the benefit of the broader information and intelligence base we have from a series of other operations. I think this may be helpful for the committee to know, because I haven't made it public before. In 2016 we became aware of a number of threads that related to potential areas of corruption in both the immigration detention space and in the visa processing area.

CHAIR: What do you mean by 'threads'?

Mr Griffin : Pieces of information of different types. You'd appreciate that we receive everything from direct referrals of intelligence reports from security agencies through to people who ring us in the middle of the night on our hotline and leave messages and everything in between. Those various threads caused me to seek from government a funding package under the Proceeds of Crime Act to establish what we called the Visa Integrity Taskforce. That kicked off in 2017. That involved recruiting a number of specialist people. As you would probably appreciate, it's not a matter of putting a job ad on SEEK or LinkedIn for the type of people that we need. We couldn't get the funding on 1 July and have it running on 4 July; it doesn't work that way. So we set about recruiting the right people, and we got them. It took some time. And then we ran that project. I'm pleased to say it's still running. It was so successful that we sought approval to continue the money that we hadn't expended, and we continue on. I anticipate we'll wrap it up towards the end of this year.

The Visa Integrity Taskforce focused on the issue of potential corruption in the issuing of visas, mostly offshore. That caused us to have a very good look at the systems and the people involved in that process. We selected a number of countries. We chose two in Africa, one in Europe, two in the Middle East and several in Asia. We went in and had a look at them with a full intelligence workup and investigation process. We disrupted a fairly significant syndicate in one of those countries. We were able to disseminate that information to the relevant law enforcement and security agencies, who were able to sweep up those people. In the other countries that we identified, we found a number of corrupt systems and people in place who were entirely what are known as locally employed staff. They were employees of the Department of Foreign Affairs and Trade exercising authority under the Migration Act in respect of the issuance of visas. By and large, it involved the payment of money for a visa which was granted on the basis of documentation that was fraudulent. Whilst it covered the whole range of visas, it was mainly in the student environment, because that is the sort of visa that gives you long-term access to Australia rather than the short-term visa.

We're pretty confident we found it all. We were able to work closely with Home Affairs and Foreign Affairs and Trade. We were able to interdict the syndicates, particularly the bigger one. That resulted in code of conduct action in respect of the locally employed staff, because, as you'd appreciate, the criminal sanctions available to me under the act do not apply extraterritorially. What we're really interested in is getting rid of the risk and cauterising the wound so that normal processes can be underway. We then engaged in an extensive education process in collaboration with Foreign Affairs and Trade and Home Affairs to go and retrain the officials in those places in how to go about their business. We think we've got a very good understanding of that visa issuing space in those countries that we looked at. We also had regard to China, one of the largest markets for visas. We assessed that because it was one of the largest markets and, in our consideration of the department's processes, it was very robust. My hearings that are commencing next week will explore and test that proposition quite significantly.

The parallel aspect of the task force related to other operation that we undertook in the immigration detention space. I initiated an own-motion investigation three years ago in respect of matters of public consideration arising out of Manus Island. We had a good look at that. We reached the conclusion that there was no corruption issue. Whilst there may be other issues that are criminally related, they don't fit within the definition of corruption provided for in this act. It may be helpful if I remind the committee of that definition. It's three-fold. The first limb is abuse of office. You may be familiar with the criminal law aspect of abuse of office. It entails the prosecution proving the element of dishonesty. That is easier said than done on the criminal burden of beyond reasonable doubt. So we do do that and we have had several prosecutions of abuse of office. The second limb is effectively obstructing justice or perverting the course of justice. The third limb is conduct which, having regard to the duties and office of the person in question, amounts to corruption of any other kind.

We then looked at the immigration environment. As I mentioned, initially we looked at Manus Island and we felt that that test wasn't satisfied. I might also mention to the committee that when I look at considering those corruption allegations, the test in the act is very broad, particularly if you consider it against, for example, the state agencies such as the New South Wales provisions, which run for pages, which were found by the High Court in the matter of Cunneen to be beyond power. In our act the hurdle is a very simple one. Corruption jurisdiction for me is information that raises a corruption issue. It doesn't say anything about a prima facie case. It doesn't say anything about reasonable cause. It doesn't say anything about reasonable suspicion of the commission of an offence. It just says information that raises a corruption issue. So, as you'd appreciate, that is not a great hurdle for me to get over. Having crossed over that hurdle, the next question is: does it fall within jurisdiction? The Migration Act allows for the minister, to specify, in addition to Border Force and Home Affairs staff, people such as, at the relevant time, the Serco employees who worked as the officials within the detention centres. So they fall within our jurisdiction. So we decided to have a good look at them.

How did we do that? First of all, I visited them all myself. You might realise, as I did, that nothing bad is going to happen while I'm there, but it sent a message that we were having a look. We then sent investigators in overtly and made their presence felt. Then we utilised the covert powers that are available to us. We did identify corruption—people on Christmas Island who were prosecuted and people in the Perth Detention Centre who were prosecuted. In other detention centres we were unable to reach the criminal burden but we did reach the administrative law test of the balance of probabilities, so we were able to draw that to the attention of the department. I met with the Border Force commissioner on several occasions and with the senior management staff of Serco. Our intelligence was disseminated to them and they dealt with the people that we had identified. That's been ongoing for three years, and I am as confident as we can be that we have put the appropriate resourcing into having a look at the detention centres and the visa issuing process, at least in the countries that we looked at. That included the person who was discussed yesterday. I understand, I think I have already said, that Home Affairs have corrected the record, but we looked at that particular person and we were satisfied that that all the intelligence work and the investigative work had been done in relation to the two matters that he raised, and that—in terms of my obligation of serious and systemic corruption—it was appropriate to refocus my resources on that more significant material, because I had confidence that this person was not at personal risk. That was a key issue that we referred back to the department and we knew that they were apprised of that.

Thank you, chair. We are available for any questions that the committee may wish to ask.

Senator McKIM: Thanks for your opening comments, Mr Griffin. They have raised a number of questions in my mind that I will now begin to ask you. I suspect we will run out of time in my first tranche. So we might have to come back to it. The first matter I would like to discuss is the matter that Home Affairs have corrected the record on today. You may be constrained from mentioning names, and that's fair enough, but I am not, so I will place on the record that this is in regard to a complaint made by Mr Nauroze Anees that this committee had previously been told was referred to your organisation on 6 March. Can you remind me when you said you referred that back to Home Affairs?

Mr Griffin : I believe it was 2 April.

Senator McKIM: So when Ms Noble from Home Affairs said on 4 April to this committee:

… the secretary referred the matter to ACLEI on 6 March and it remains with them.

That's wrong, is it?

Mr Griffin : I can only tell you what we did. That is—and my staff checked today—the message containing my letter went on 2 April.

Senator McKIM: Are you able to provide the committee with a copy of that letter?

Mr Griffin : Yes.

Senator McKIM: Are you able to do that in real-time or would you need to take that on notice?

Mr Griffin : We would need to take that on notice.

Senator McKIM: Thanks, Mr Griffin. I look forward to reading that. In the course of your opening statement, you mentioned—I'm sorry, I can't remember the name—the task force that was established, I think you said to deal with potential corruption around, firstly, immigration detention and secondly, visa processing, is that right?

Mr Griffin : I'm sorry, I've conflated the two.

Senator McKIM: It may be my misunderstanding, Mr Griffin, so no need to apologise. Perhaps you could just clarify what the task force is investigating.

Mr Griffin : I will. The one to do with visas has the acronym VITF, and it's the Visa Integrity Task Force. It was specifically directed, largely, to the external issuing of visas—outside Australia.

Senator McKIM: Offshore?

Mr Griffin : Yes, offshore. The second one was a group of operations that were divided up between my teams. They had separate operational names, but in the end we rolled them all together because they were all so related.

Senator McKIM: Okay, and that was into immigration detention?

Mr Griffin : Correct.

Senator McKIM: Did that one include Manus Island?

Mr Griffin : No.

Senator McKIM: That was a separate matter?

Mr Griffin : Manus predated—

Senator McKIM: It predated it and was a separate matter. I'm going to park Manus Island for a minute, but we will come back to it. Can you remind me what VITF stands for again?

Mr Griffin : Visa Integrity Task Force.

Senator McKIM: Thank you. Is that still ongoing as of today?

Mr Griffin : It is.

Senator McKIM: Okay. Could you try to encapsulate why you made the decision to refer Mr Anees's complaint back to home affairs? Was it a resourcing issue? I think you alluded to that in your opening comments. Would that be a fair—

Mr Griffin : That was a significant part of it. It relates to section 16 of the act, which obliges me to direct the resources to serious or systemic corruption. As you'd appreciate, there are gradations of how serious something is and, indeed, how systemic it is, so it's a triage process

Senator McKIM: Thank you. But, ultimately, what you've done is refer complaints made against home affairs back to home affairs for investigation, haven't you?

Mr Griffin : Yes.

Senator McKIM: So, by referring it back, you've initiated the department investigating itself?

Mr Griffin : Yes, I have.

Senator McKIM: But you've said you have oversight of the investigation?

Mr Griffin : That's correct.

Senator McKIM: Firstly, why it was Mr Anees not told that the matter had been referred back? I've just checked with him and he had no idea—this is all new. He's watching and this is all news to him.

Mr Griffin : Typically, we don't engage with people who have referred matters to us in the first instance, particularly where we've taken the decision almost straight away to refer it to the agency. The act actually comprehends that agencies really have the first responsibility for the maintenance of their own internal integrity, and it's a fine balance. You've identified one of the issues, which is sending something back to the people who an individual may conclude, 'Well, these are the people who've done this to me,—

Senator McKIM: My word.

Mr Griffin : why have they sent that back?'

Senator McKIM: My word.

Mr Griffin : I fully appreciate and understand that, yes. What we did do, and what we have done consistently in those particular centres, as I alluded to earlier, is that we showed the flag, if you like. I went there, to the people who were there—

Senator McKIM: So was this in the context of that complaint or the broader work of the—

Mr Griffin : No, the broader one.

Senator McKIM: I'm specifically trying to ask questions about the specific complaint.

Mr Griffin : Specific, yes.

Senator McKIM: In fact, I think you said in your opening statement that there were actually two complaints referred.

Mr Griffin : Yes.

Senator McKIM: Where they both referred by Mr Pezzullo?

Mr Griffin : No. One came directly from the gentleman in detention himself, and it was about himself. The first one wasn't about him.

Senator McKIM: I understand that. I don't know what the second complaint was, but I do know what the first one was; it was a matter of visa integrity, was it not?

Mr Griffin : Yes, it was.

Senator McKIM: So why didn't you ask your task force, which was in operation at the time, to investigate that?

Mr Griffin : Because it was part of the total package that we were investigating. We were looking at allegations in relation to the payment of bribes for the processing of visas.

Senator McKIM: That was—

Mr Griffin : So we captured that—

Senator McKIM: Sorry, Mr Griffin. Are you speaking there about that specific complaint or the broader work of the task force?

Mr Griffin : We captured that specific piece of intelligence into the broader work of the task force.

Senator McKIM: This might be a silly question—and apologies in advance if it is—but if the task force was up and running and ongoing, surely the resourcing issue wasn't a huge one for you, because you already had a task force investigating visa integrity and another complaint came in right in the scope of that task force. Why was the resourcing such an issue, in your mind?

Mr Griffin : Because, at that time—and, indeed, throughout the period since 1 July 2017—we had chosen those countries offshore with a vast volume of visa processing. We had looked at the particular matter that this person had raised, in terms of the broad context within Australia of visa processing, and we were confident that we had a good read on the visa processing internally. And allegations of—I won't name the geographical area, but there was a particular office that was said to be involved in that. So I had a team dedicated to looking at that office, and the full range of our suite of powers. Again, because of the triaging process, I've got to look at the greatest risk—where is the biggest risk?

In respect of the person we're talking about, I was comfortable, at the time of the first issue he raised, that there was no risk to him, because it wasn't about him. Dealing with that aspect of risk for a whistleblower, which we take very, very seriously—it's my experience, in excess of 100 hearings that I've done as the Integrity Commissioner, that whistleblowers don't want to be known. They are fearful, often, with very good reason. So we take that seriously and we protect them.

In that first matter, with that person, he was not at risk on all the indicia that we had. In the second matter, we had already gone into that particular place. That's where I mentioned to you that we'd had discussions with Border Force and Serco about people we had concerns about, who were involved in the management and maintenance of that centre, and we were pretty comfortable that the risk had been removed. Therefore, it was again a triaging process that the level of risk and seriousness for that matter was such that we could, with reasonable confidence, refer it to the department to look at.

Senator McKIM: Okay. The situation is that in the matter of Mr Anees, he'd blown the whistle publicly on his allegations. You are aware of that?

Mr Griffin : I am now, Senator. Thank you. I'm not second-guessing the decision for the person to make themselves known. They might feel comfortable, but there are other people we have to worry about.

Senator McKIM: I fully appreciate that, and I make no adverse comment in regard to that. But I just want to place on the record that, in some circumstances, it is possible to conceive that publicity would help keep somebody safe rather than secrecy.

Mr Griffin : I wouldn't quibble with that proposition.

Senator McKIM: Perhaps that's where Mr Anees found himself. He doesn't feel safe. He's still in immigration detention today, and he doesn't feel safe. In fact, he believes he's being victimised because he's made this complaint. And after at least two manifestly false statements to this committee by Department of Home Affairs officials—once on 4 April this year and another one yesterday—we've just found out today that, in fact, this matter has been with Home Affairs for many months. Yet Mr Anees has not been contacted by Home Affairs. I've just checked with him. No-one's contacted him. So given you have oversight of the Home Affairs investigation, could you encapsulate where that investigation is at for the committee, please, if that's possible for you to do?

Mr Griffin : We've made inquiries ourselves, having identified the error. We are in a position to oversight what they, we understand, have planned. We will do that now. I might also draw to your attention, if I may, section 220 of the Law Enforcement Integrity Commissioner Act. It makes it an offence to victimise any person who raises issues with ACLEI. I will park that alongside what you've just raised with me, and I will treat it just as any other matter that comes to us. It's come to us in this forum, but we'll give it the appropriate response. I assure you of that.

Senator McKIM: Thank you, Mr Griffin. I very much appreciate that. I really do. Can I follow up on one comment you just made. You said that you'd had oversight of what Home Affairs has planned. Does that mean that they're yet to commence an investigation?

Mr Griffin : We don't actually know that. We know an investigator is identified. What we typically do when we oversight is that we will provide our own intelligence work up to the relevant agency. They will develop an investigation plan. They will run it past our senior investigator who's allocated to it to provide advice and guidance, if you like, on how the investigation unfolds.

Senator McKIM: But, at the moment, you're unable to inform the committee that the Home Affairs investigation has commenced?

Mr Griffin : I know that they have identified an investigator and that they have taken steps, but I can't speak to the detail of that.

Senator McKIM: But this was referred back to them in early April. That's six months ago, effectively.

Mr Griffin : It's quite reasonable that because it related to the alleged purchasing of visas, that matter, it was pretty much subsumed in our visa process. I can't say the same about the matter that was alleged concerning the man himself, which was in July.

Senator McKIM: I understand that. The point I'm making is that, on your evidence, it's an inevitable conclusion for this committee that after six months, after you referred the first complaint that was referred to you back to Home Affairs, the investigation appears not to have even commenced. That's a long time for the department to sit on an investigation, particularly as twice, in my view, they've given false information to this committee, albeit one of them has been now corrected. But in a way that's prevented me from asking Home Affairs questions about this investigation because they're not coming back.

Mr Griffin : I understand the point you're making, but I would go back to the time line. That first one, which was the six months, isn't about the gentleman himself.

Senator McKIM: No.

Mr Griffin : And it is about a matter that, quite reasonably, could be considered as part of what we're doing in the visa task force. If you're going to start the clock running, I think it would be from July, when we sent it back—the second one. And Home Affairs will speak for themselves, of course.

Senator McKIM: In about six months when we get them back in! Are you aware of whether Home Affairs is investigating the two allegations separately or in a combined way? I'm only asking to the level of your awareness about that.

Mr Griffin : No, I don't know.

Senator McKIM: There's a lot of new information before the committee, as I'm sure you can appreciate, Mr Griffin, so I'll just move to the investigation you say you conducted on Manus Island. Did you say that was own-motion investigation?

Mr Griffin : It was an own-motion investigation.

Senator McKIM: Information came to light or, to your mind, was enlivened as to the potential for corruption in the Manus Island RPC? Is that fair?

Mr Griffin : Yes. As you'd appreciate, we take a very close look at all avenues of information, not least being open-source reporting.

Senator McKIM: Yes.

Mr Griffin : I saw the reporting. I thought that the public would want me to have a look at that, so I did. We did an intelligence work-up. We didn't send investigators in. It was an extra jurisdictional matter. But we did a very detailed intelligence analysis of it. Then we went to school on one of my predecessors—Mr Philip Moss, who was an integrity commissioner. He conducted a review and we had a look at the material he gathered, and I think, with the greatest respect, Mr Moss would recognise a corruption issue as soon as he saw it. Having looked at his considerations, our own intelligence analysis, we were satisfied that it didn't raise a corruption issue. There were other issues, potentially, of criminality. But as far as the three-pronged test that I referred you to earlier was concerned, we didn't feel that it crossed that threshold.

Senator McKIM: What were the issues of criminality that it raised?

Mr Griffin : My recollection is that there were matters in the press article about potential violence or perhaps verbal violence. I can't recall, I'm sorry, and I would be misleading you if I said I remembered.

Senator McKIM: Sure. When did that investigation end?

Mr Griffin : It was before the task force was stood up. I'd have to take that on notice, but I think it was the second half of 2016.

Senator McKIM: Do you recall whether it investigated allegations that detention centre staff who were involved in the murder of Reza Barati were flown out of the country before they could be interviewed by Papua New Guinean police?

Mr Griffin : No, it did not.

Senator McKIM: That's raised a number of questions in my mind. Perhaps the easiest thing for us to do at this stage is for me to have a bit of a think about that. There is a process to put written questions on notice through this committee. As you've pointed out, you're obviously operating in accordance with your act and other statutes on the books, and obviously I don't want you to breach your responsibilities. But I have a number of further questions, some of which I would like to ask tonight. Chair, I've had a fair old crack at it, and thank you. I know Senator Lambie's got questions, but I will just indicate that I do have a further tranche of questions for ACLEI.

CHAIR: Okay. You've had 15. I'll send the call over to Senator Lambie.

Senator LAMBIE: Thank you, Chair. I understand that ACLEI has written to my colleague Andrew Wilkie MP asking for him to reveal the identity of a whistleblower who is a driver for Crown Casino in Melbourne. This whistleblower agreed to speak with Andrew only on the condition that he remain anonymous. As you have already pointed out, whistleblowers do not want to be known. Andrew agreed to honour this, as he would. So, can I ask—rather than spending time trying to discover the identity of this driver—when do your officers intend to go down to Crown Casino and interview all the drivers? You're sitting there, but when are you going to interview all the drivers from Crown?

Mr Griffin : In due course.

Senator LAMBIE: Is your office going to do that, or are you going to pass that over to the Australian Federal Police or the Victorian Police?

Mr Griffin : I'll assess that when we see how big the task is.

Senator LAMBIE: Okay. Obviously this is out there. Wouldn't you want to move on this as quickly as possible? Do you have somebody advising you on how to do this the policing way, or are you just using your integrity—do you actually have someone who's been in policing advising you on how to tackle these issues?

Mr Griffin : Yes.

Senator LAMBIE: You do?

Mr Griffin : Yes.

Senator LAMBIE: So, what do you think your time frame's going to be before you actually get down to those drivers and interview every single one of them? Drivers have a lot to say, by the way.

Mr Griffin : I look forward to hearing from them.

Senator LAMBIE: That'd be great. So, do you have any time line on that whatsoever?

Mr Griffin : We typically don't telegraph our operational activities.

Senator LAMBIE: There seems to be a lack of sense of urgency about it, that's all. I'm just trying to get to that. Is there a lack of a sense of urgency, or do you just not have the resources to be able to carry it out?

Mr Griffin : I'm not sure where you get the lack of a sense of urgency from. We commenced hearings within three weeks of receiving the referral, and our investigations have been quite extensive. You would perhaps understand that there are a number of other agencies who are running on this track at the moment, and there are issues of deconfliction. But what we will do, as we always do, is undertake the investigation painstakingly and thoroughly. We're doing that.

Senator LAMBIE: I take particular note that Crown Casino seems to have some sort of power over the Labor Party and the Liberal Party—

CHAIR: That's outrageous!

Senator LAMBIE: so can I ask you, what powers does ACLEI have to investigate members of parliament?

Mr Griffin : I have powers under section 75 and 82 of the Law Enforcement Integrity Commissioner Act to summon any person present within the borders of Australia to answer questions under oath on pain of criminal sanction for failure to do so. They apply to everyone.

Senator LAMBIE: Have you investigated any members of parliament yet?

Mr Griffin : I'm not going to go into the operational details of my inquiry in public.

Senator LAMBIE: There are a lot of allegations swirling around about Crown concerning Victoria Police. What powers does ACLEI have to investigate VicPol if needed?

Mr Griffin : As I indicated, under sections 75 and 82 of the Act, I can summon any person in Australia and any organisation in Australia, subject to the Commonwealth/state legal divide, to provide information. I can tell you that we have excellent relationships with all of the state law enforcement agencies and anticorruption agencies, and we are engaging in gathering a vast body of material from those agencies. I'd go so far as to say that it may be the first time that a helicopter view of the material that's held by different state agencies will be considered.

Senator LAMBIE: Is it, though, when it comes to people like VicPol and politicians, that these powers will only apply when it is known that laws have been broken and only then you can start your investigation?

Mr Griffin : I'm sorry, I didn't quite follow that.

CHAIR: Senator Lambie, I'm going to interrupt you there and just caution you not to cast reckless aspersions upon members of parliament and parties in circumstances where you are lacking in evidence for doing so. If you have evidence for doing so, I suggest you present it rather than doing what you are doing.

Senator LAMBIE: I'm simply asking about a law: whether or not they can investigate before they know the law has been broken or after. I have every entitlement to ask that, Chair.

CHAIR: You can ask questions about when laws are broken, but in doing so you are making accusations.

Senator LAMBIE: What am I doing, breaking the law?

CHAIR: You have cast aspersions on parties and members of parliament—

Senator LAMBIE: I'm simply asking—

CHAIR: I ask that you do this with civility, focus on the issues, focus less on casting claims for which you have presented no evidence. Focus on the issues and we won't have any problems.

Senator LAMBIE: I'm simply asking, once again, when it comes to politicians and police, or Federal Police, or anyone else—those three in particular—do you have the powers to investigate before you know that laws have been broken; or once the laws have been broken can you then come in and you have the evidence that the laws have been broken, do you then go in and investigate, or do you have the powers to investigate before it gets to that?

Mr Griffin : We can investigate before the law is broken. I should qualify my response to you about summoning 'any person'. Summoning any person relates to me being satisfied, or having reasonable grounds to believe, that they have or may be in possession or know of information that is relevant to my inquiry. So politicians going about their business in parliament is parliamentary business, and we would of course respect parliamentary privilege in that regard. Similarly with statutory officials and others under state legislation: their personal knowledge and things that they had done in their non-professional activities would be subject to my jurisdiction. But the carriage of their official capacity would be a matter for their state corruption bodies. But we would refer that to the state body.

Senator LAMBIE: That's interesting. Do you believe that you are the best organisation—and we have a lot of them here in Australia—to be investigating what's going on with Crown?

Mr Griffin : I think it's helpful to define what my role is. My role, as referred to me by the Attorney-General, is to inquire into allegations of corruption involving interactions between the Department of Home Affairs and Crown. So anything that is relevant to interactions between Home Affairs and Crown we will inquire into and investigate. In respect of Home Affairs, that probably divides into two separate components. One is the Border Force officials, who put on their hats and go to the plane and clear the people and look at their passports and luggage and that sort of thing—so those officers responsible for the people coming in and out. Also, at the other end, as you heard about the ALOs—the Border Force officers at the departure point in another country—is there any corruption in what they're doing?

The separate, parallel component is the visa process of the officials in China issuing visas to what we are told are referred to as high rollers, and what happens to them in respect of the immigration officials when they arrive in Australia. So there are two components and their interactions with Crown. What I would do, and what I would imagine you would expect me to do, is cast the net wide and then draw it back in to see what we turn up and investigate that. That may involve, where it doesn't involve the interactions between those two bodies—that is, those people in my jurisdiction—referring that to one of the state or other federal agencies.

Senator LAMBIE: So you're like a private investigator, then, on the outside. You go gather as much intelligence as you can then pass it off to one of the departments and hope like hell, I suppose, that they get the job done? Is that where I'm coming from here? I'm just trying to work out your role precisely.

Mr Griffin : My role is to investigate corruption.

Senator LAMBIE: And once you have all that evidence, you'll then do what? You'll pass it over to the agency that—I'm just trying to work it out—are you more like a private investigator, where you say, 'I've got all the evidence here, and now I'm going to pass it over, I think it belongs in Home Affairs, I think it belongs with the Federal Police—'?

Mr Griffin : I see your point. There is some parallel to the metaphor you've used except that, rather than passing it over to the agency, we will assemble that evidence. If we're satisfied that it gives rise to a prima facie case—that is, if the evidence is admissible—we'll give it either to the Federal Police to prosecute but, more usually, to the Commonwealth Director of Public Prosecutions to determine whether or not a criminal prima facie brief of evidence is there. Failing that, it may be that we would give it to a state law enforcement agency such as the Independent Broad-based Anti-corruption Commission in Victoria, ICAC in New South Wales, or the New South Wales Director of Public Prosecutions. But I'm required—once I reach the trigger point of having what I think is sufficient evidence to give rise to a criminal prosecution, then I give it to those prosecuting authorities, who are independent, and they make that decision. So it doesn't go back to the agency, it goes to the law enforcement bodies.

Senator LAMBIE: So basically, it doesn't go back to the agencies, not ever?

Mr Griffin : It does if I haven't got a criminal case. What parliament decided in the Act was to have a two-step test. Section 142—which comes first in priority—deals with criminal law. If I don't get over the criminal hurdle, then section 146 says, have you got a balance-of-probabilities case here that can be used? You'd be familiar with the code of conduct and the disciplinary side of the house. Can this be used to deal with this person under code of conduct? So that's my second trigger point.

Senator LAMBIE: Considering that you can't prosecute or charge, and you're doing the investigation, and you'll know it back to front better than anyone before you pass it off, because you would have done all that groundwork, do you think that maybe it's time to give you guys more powers to be able to follow that through from beginning to finish? Passing cases from one person to another is never, never, a good idea, especially when it's dealing with criminal law and visas and what's going on, whether you're laundering money.

Mr Griffin : You'd appreciate that it happens all the time, where the Federal Police do an investigation, just as I am, and then they give that to the Director of Public Prosecutions. It's not an unusual process.

Senator LAMBIE: Yes, but you don't have the same powers as the Federal Police, though.

Mr Griffin : I've got more powers than the Federal Police.

Senator LAMBIE: Your department does not have the same powers as the Federal Police. You can't go in and prosecute, and you can't go in and charge. They can certainly go in and charge and walk that through.

Mr Griffin : We have considerably more powers than the Federal Police. For example, we can compel people to give evidence even if they might incriminate themselves in doing so, which the police can't do. I can have people in, they'll take the Bible or whichever holy book they believe in, or they'll make an affirmation that they'll tell the truth, and they have to answer every question, even if it leads to self-incrimination. So yes, we've got considerable powers. Your question is, should a body with that degree of powers that takes away all those common-law rights, should that body also have the power to charge? There are many who take the view, as did the framers of this act and the parliament, 'Maybe that's a bit strong. Maybe we should have an independent body that decides whether or not to charge.' That's the situation as it is at the moment.

Senator LAMBIE: It would be much easier for everyone if we had a federal ICAC. That would clear all our matters up. What do you think about that, Mr Griffin?

Senator Payne: That's a statement of your view, Senator.

Senator LAMBIE: I would have just liked what he thought.

CHAIR: This is a time for questions. You can reframe that as a question, but you can't give a speech.

Senator LAMBIE: So I guess my last question is, would it be preferable to have a federal ICAC in these situations, rather than having what I would say is the next level down? I'm not trying to be mean there, but if we had a federal ICAC with massive amounts of powers, wouldn't we get much better results?

Mr Griffin : I think one of the issues that arises four square there is, say for example I was a federal ICAC and there was a state royal commission underway, as there is in New South Wales, and another inquiry underway in Victoria; the deconfliction of that would give rise to very significant constitutional law issues. That doesn't mean that's wrong. I just flag that there are a whole range of issues that can arise there. Of course the decision is a matter of policy and is one for government.

Senator HENDERSON: Commissioner, a couple of questions. Does ACLEI have sufficient powers to investigate the broad nature of the allegations referred to it by the Attorney-General in relation to Crown Casino?

Mr Griffin : Yes. As the explanatory memorandum to the act and the second reading speech made plain, in fact we have the powers of a royal commission. We couldn't have any more power under the Australian Constitution under law. We've got the full suite.

Senator HENDERSON: Why did you choose to hold public hearings in relation to Crown?

Mr Griffin : Section 82 sets out a four-limb test that I have to consider each and every time I've held those 104 hearings I've had to date. I do this every single time. I have to look at the four limbs.

The first limb is: does this matter involve confidential issues? And 'confidential' is not defined in the act, but, as you would know, it comes under a whole range of titles—medical-in-confidence, legal-in-confidence, psych-in-confidence, commercial-in-confidence and so on. I have to consider whether it raises an issue of confidence. The second part of that first limb is: does it raise issues that are potentially criminal in nature? Could there be a criminal offence here? As I understand it, what the parliament was concerned with there was the primacy of the courts. An executive function like mine shouldn't run the risk of interrupting or perhaps being in contempt of the court. So I have to look at that. That's a balancing act. That's just the first limb.

The second limb is couched in these terms: is it possible that a public hearing would create unfair prejudice to the reputation of the person? What's interesting about that formulation of words is the use of the adjective 'unfair'. It doesn't say: would it create prejudice to the reputation of the person? It says: would it create unfair prejudice to the person? Again it is not defined, but it's part of the exercise that I have to go through.

The third limb is: is the public interest in this matter of such significance that it warrants a public hearing? The fourth matter is: any other relevant issue. So, looking at those four and noting that the referral that came to me from the Attorney-General included reference to at least one media television program and several newspaper articles, on balance the potential unfairness to anyone, the prejudice to particularly those who will be in the public hearings, is way and truly outweighed by the public interest because the public have already heard quite a bit of this story. In the normal course of events, just like the police, we don't telegraph that we're coming. We don't say that there's going to be an investigation. We do it behind closed doors. We don't want to tip off people. But in this matter the issue is already over, by and large—the allegations are known to everyone—so any criminality would have found another avenue by now. So in that exercise I've come down on the side of the public interest outweighing those other considerations.

Senator HENDERSON: Why did you write to the Australia Institute about their public statements in relation to the Crown matters?

Mr Griffin : That particular document published by the Australia Institute had so many flaws in it that I felt it was incumbent upon me to bring it to the attention of the senior management of the institute.

Senator HENDERSON: And what were those flaws?

Mr Griffin : One that immediately springs to mind is that it said that we didn't have sufficient powers. In fact, here it is. I wrote back to them and said that the first error that they had made was that they said that ACLEI does not have the full investigative powers of a royal commission. Then I set out the explanatory memorandum and the legislation. That was the first one.

The second one was that our definition of 'corrupt conduct' in the act is more limited than the definitions in the state based anticorruption commissions. It is, in fact, the reverse. Ours is very broad, as I indicated earlier. Does the information raise a corruption issue? They said, 'ACLEI cannot make findings of corrupt conduct but only refer misconduct to agency managers.' That's patently wrong. We've had 10 prosecutions just this year alone. We have made findings of corrupt conduct and the court has found the individuals guilty of abuse of office or other forms of corrupt conduct. They're criminal sanctions.

They said, 'ACLEI cannot refer cases to the DPP but only to the Federal Police Commissioner.' Again, almost everything goes to the DPP, either federal or state, so that's just plainly wrong. 'ACLEI does not have the power to investigate ministers or former ministers, ministerial staff, MPs, government contractors or the judiciary.' As I've indicated, the act gives very extensive powers to question any person who has evidence that is relevant to the corruption investigation that I have underway. And finally: 'ACLEI is under-resourced and relies on the AFP to carry out its major investigations.' Well, no, that's not true. We use what we refer to as the concertina model. We are a relatively small agency—at any given time, we have roughly 60 to 65 people—but we bring in resources, as we did for the task force. We will second people from a variety of agencies, both state and federal, who then are authorised under my act and who then carry the full sanctions of the criminal law to protect what they hear and learn while they are working with ACLEI. We can bring those resources to bear reasonably quickly and they are quite significant. That is what I wanted to correct, Senator.

Senator HENDERSON: Thank you very much.

Senator PATRICK: Chair, could I have one supplementary question?

CHAIR: If it's one, sure.

Senator PATRICK: Mr Griffin, this goes to your statement that you can require someone to give evidence that is self-incriminating. Is that admissible in a court in later proceedings?

Mr Griffin : With respect, that's an interesting question. The parliament clearly decided that the need to gather that information was of such critical importance that it interferes with or removes those common law protections. The trade-off for that—and it is a significant trade-off—is that evidence cannot be used against the person themselves in criminal proceedings.

Senator PATRICK: And that, I think, is proper. I just wanted to clarify that. That is normally the situation for royal commissions and other—

Mr Griffin : Indeed, and it is a very important point.

Senator McKIM: Mr Griffin, do you have the exact dates that the two complaints from Home Affairs were received by ACLEI and then, in each case, returned back to Home Affairs?

Mr Griffin : I'd need to take that on notice if I can. My recollection is that the first one was received sometime in March and the second one was received sometime in June and they were turned around in the following month in each case.

Senator McKIM: I think you gave evidence earlier that the first of those was referred back to Home Affairs on 2 April. I think you said earlier that you had checked that.

Mr Griffin : Let me just confirm that. Yes, it was 2 April.

Senator McKIM: I think you have agreed that you will provide that letter on notice. Could I extend that to both of the letters. Were they referred back by letter? Is that how these things are done?

Mr Griffin : That's how they are done, yes.

Senator McKIM: Could you please provide on notice each of the letters that referred each of the matters back to Home Affairs?

Mr Griffin : Yes.

Senator McKIM: Thank you.

Mr Griffin : Might I qualify my grandiose statement that we can provide that to you. I would need to add the qualification that it may require—and I don't know—the redaction of individuals. But, given that you have already indicated the person's name, I think that's unlikely.

Senator McKIM: All right. Thank you. But my next question does go to individuals. Were the letters addressed to Mr Pezzullo, who does have some statutory responsibilities in this area?

Mr Griffin : I always write to the agency heads.

Senator McKIM: So both of those letters would have gone to Mr Pezzullo?

Mr Griffin : Correct.

Senator McKIM: In regard to the current role that ACLEI has on both of those matters, which is to oversight the Home Affairs investigation, I've reviewed the correction provided to the committee today by Mr Brown from Home Affairs. He says that the matter—and I am sure he is referring to the first of the two referrals—is currently under investigation. But ACLEI is not aware of that. So what sort of oversight are you running if there is an investigation underway but your organisation is not aware that there is an investigation underway?

Mr Griffin : We oversight when we receive the investigation plan. To my knowledge, as advised today, we haven't seen the investigation plan yet.

Senator McKIM: So Home Affairs says there's an investigation underway, but ACLEI is yet to receive an investigation plan?

Mr Griffin : It may simply be the disjunct of time, that they have commenced something. I can't speak for them. What I can say to you is that we are yet to sight the plan.

Senator McKIM: Do you know as part of your oversight when Home Affairs commenced the investigation? I have realised halfway through the question that you don't because you didn't know there was an investigation underway.

Mr Griffin : That's right. We don't know.

Senator McKIM: So the situation is that the person who made the complaint, Mr Anees, has been waiting patiently since it was made public that the matter was referred to ACLEI in the first place by Mr Pezzullo back in March this year to provide investigators with extra evidence that he wished to furnish them with that was not part of his original, public allegations. So since March he has been waiting for about six months. I have checked with him; he has not heard from you, which you've confirmed, because you are not investigating. I understand that. That's not an adverse reflection. But he hasn't heard from Home Affairs. Given that Mr Anees has alleged to me that he has received death threats inside the immigration detention system, given that he's alleged to me that he was physically assaulted inside the immigration detention centre as a result of making these allegations, what would be your advice to Mr Anees at the moment? How should he go about making himself safe, firstly? Secondly, how should he provide the further information he says he has to Home Affairs when in fact they haven't even told him that they are investigating?

Mr Griffin : I'll just get the sequence right in my head to answer your question as best I can. I have just been corrected: the oversight extends to the first matter. That's because it was rolled into the whole Visa Integrity Task Force. I shouldn't speculate, but it would not be unreasonable for Home Affairs to conclude that, because that's part of the Visa Integrity Task Force and because it didn't relate to him and he had given the information, there is nothing more to get from him. I don't know. We are oversighting it as part of that—

Senator McKIM: I understand that, Mr Griffin, but the awkward position I am in is because of the wrong information provided to this committee yesterday by Home Affairs, which they have now corrected. I have been deprived of an opportunity to ask Home Affairs these questions.

Mr Griffin : Yes. I understand—

Senator McKIM: That is not an adverse reflection on you in anyway, just to be clear.

Mr Griffin : What I can circle back to is the issue I raised with you about section 220 about vilification of people if they make complaints to my commission. We will take that away from this hearing and consider how we would deal with that.

Senator McKIM: Would publicly providing false information about someone as a result of them making a complaint fall into the category of victimisation?

Mr Griffin : It may well do. Section 220 has two limbs, as many of the sections do. I might just refresh my memory, if you will bear with me while I have a look at the actual provision. It's in these terms: a person commits an offence if the person causes or threatens to cause detriment to another person on the ground that the victim or any other person has referred the matter to ACLEI. And it carries the sanction of imprisonment for two years.

Senator McKIM: Thank you. If you're unable to answer this, please tell me, but could 'detriment' include reputational detriment?

Mr Griffin : It's a term that would need to be interpreted in the consideration of the alleged offending. I wouldn't rule it out.

CHAIR: Senator McKim, I'm concerned that, given that the letter we have been provided by Home Affairs tells us that we have a current investigation, this line of questioning may prejudice that, and I ask you to exercise appropriate care.

Senator McKIM: All right. I'll keep that in mind. Thank you.

CHAIR: Thank you.

Senator PATRICK: In relation to someone who feels that detriment may have been caused in respect of that last section, I presume they'd bring that to your attention and that you, in ensuring that there's confidence in your organisation, would then investigate that and make a referral if necessary.

Mr Griffin : It's entirely likely that we would consider ourselves conflicted if the person was a witness to us and we had taken it and then something had happened to that person—that we would form part of the prosecution or police case. I think I would probably refer that to the Federal Police.

Senator PATRICK: But you would specifically, prima facie, say, 'Look, I think this needs to be looked at by the police.' And you wouldn't leave it to the person to go somewhere looking for help?

Mr Griffin : That's correct.

Senator KIM CARR: But these are events that—are you suggesting occur—

Senator PATRICK: No, that was just a question in response to—

Senator KIM CARR: Yes, because officers are covered by parliamentary privilege as well.

Senator McKIM: I'm not suggesting that. I'm suggesting that he's had false information made public by Minister Dutton outside the parliament.

Senator KIM CARR: Outside the parliament.

Senator McKIM: That's right.

CHAIR: Senators, we're running about four hours behind. We've got two hours to go. Can I encourage brevity, laser-like focus and wrapping up this set of questions as quickly as we can, please?

Senator McKIM: I appreciate that, but I'm sure you appreciate that there's been a range of new information placed before the committee this evening that requires appropriate examination. Mr Griffin, thank you. I just want to ask—and I am nearly done for tonight—I think you said that the Manus Island investigation ended in 2016.

Mr Griffin : That's my general recollection.

Senator McKIM: Could you take on notice to provide the dates that it started and ended?

Mr Griffin : Yes.

Senator McKIM: Thank you. When you originally raised that investigation in your opening statement, according to my notes an element of that investigation was into obstructing the course of justice. Is that right?

Mr Griffin : No.

Senator McKIM: My apologies. But you did say that although the investigation did not uncover corruption issues it did uncover issues of criminality.

Mr Griffin : No—we identified that there was reporting of issues that were potentially criminal.

Senator McKIM: What did the investigation conclude?

Mr Griffin : We only made a conclusion in respect of whether or not there was corruption. We didn't pursue the issues of criminality.

Senator McKIM: Did you refer those off to anyone else?

Mr Griffin : No, because it was open-source reporting that had already been canvassed in Mr Moss's inquiry, and he felt there was nothing to add there.

Senator McKIM: Was that in regard to the issues of criminality, or the corruption?

Mr Griffin : The entirety of what Mr Moss considered in respect of Manus Island.

Senator McKIM: I think I have misunderstood you here. So Mr Moss did his inquiry.

Mr Griffin : Yes.

Senator McKIM: Post that, you did an own motion inquiry.

Mr Griffin : Yes.

Senator McKIM: Were the matters covered in your own motion inquiry covered or not covered by Mr Moss's inquiry?

Mr Griffin : Of the parts of our inquiry that we looked at and that Mr Moss had covered, he looked at the full range of behaviours, as I understood it, and we focused on if there was a corruption issue or issues revealed in that material. We didn't look at criminality per se.

Senator McKIM: Did Mr Moss's inquiry look at criminality?

Mr Griffin : Sorry, I cannot recall.

Senator McKIM: It is probably outside your jurisdiction anyway.

Mr Griffin : Yes.

Senator McKIM: Just so I'm clear, was your Manus Island investigation associated with the Nauru RPC or just Manus Island?

Mr Griffin : Just Manus.

Senator McKIM: Did the course of your Manus Island inquiry satisfy you that there was no corruption issue on Manus Island?

Mr Griffin : It didn't raise a corruption issue.

Senator McKIM: It didn't raise a corruption issue on Manus Island. I'm still a little confused, Mr Griffin, because Mr Moss's inquiry was, at least in part, relating to potential corruption, was it not?

Mr Griffin : I can't recall what the terms of reference were, but we were satisfied from what we saw in his report that he had not identified corruption, just as we had not on the open source reporting. Because of his status as a former integrity commissioner, we didn't go behind the material that he had gathered.

Senator McKIM: You simply took it on face value—

Mr Griffin : Indeed.

Senator McKIM: which I make no adverse reflection on, by the way.

Mr Griffin : Thank you.

Senator McKIM: Well, you've given the committee a lot to think about Mr Griffin, so thank you for your evidence.

CHAIR: Commissioner, are you able to tend or provide to us a copy of your opening statement?

Mr Griffin : No, I regret not. I chose not to make an opening statement but to address the two issues that came up yesterday.

CHAIR: You're a special person for being able to freestyle your opening statement. You're doing very well. Thank you very much for appearing before the committee. We excuse you, and do so with our thanks.