INTRODUCTION
It is most pleasing to have the opportunity to speak to such an esteemed conference. As Commissioner of both their respective police forces, I would also like to add my welcome to both Australia and it's capital city, Canberra.
As you can expect, working in the seat of government the subject of politically sensitive crime is one which is close to my heart - and, given the extent to which law enforcement has become a political issue across Australia, it is a subject about which I know my fellow Australasian Police Commissioners have similar heartburn.
The principles under which we operate - certainly in Western, common law based countries - clearly separate the Executive not only from the Judiciary but also from law enforcement agencies. Yet, rightly or wrongly, there is ongoing debate about the extent to which that separation - particularly in the case of law enforcement - is real rather than illusory.
The reality is that political figures are subject of criminal investigation from time to time. The reality is that some investigations of those figures are of great interest to the public, the media and political represen tatives. A police service simply cannot, nor should it, ignore the environment within which it operates, but nor can it afford to be - or be seen to be - beholden to its political masters.
It is usual, in a speech of this type, to start with an apt quote. On this subject, finding such a quote did not take long. You may be aware that one Australian jurisdiction is prosecuting the leader and a principal administrative officer of a high profile, minority political party. It is alleged that they made false statements in order to register the party. It is not, and never was, a matter dealt with by the Federal Police or under federal law. Whilst it is purely a matter for the relevant state, in a federal system such as Australia there were many accusations about the Federal Government's alleged involvement in the matter in the sense that the Government had initiated the Police investigation. Our Deputy Prime Minister, John Andersen, effectively summarised the position in Australia with respect to the police investigation of politically sensitive matters.
{press release - John Andersen, Deputy Prime Minister - 6 July 2001}
"- . charges are a matter for law enforcement agencies. To suggest that any police force is pursuing a prosecution at the behest of politicians is to smear the reputation of every police officer and parliamentarian in the country. Law enforcement agencies are there to impartially enforce the law. The rule of law has to be respected or our system of justice will fall apart."
I would not argue with a Deputy Prime Minister, nor do I need to do so. What I would like to do in the next 15 minutes is briefly set out with respect to the investigation of politically sensitive matters: the role of the Australian Federal Police; the expectations of Government and Community; the types of matters investigated; how they are referred and reported on; what involvement our Minister of the Crown has in those processes; as well as touching briefly on some of the difficulties and some of the real challenges facing police in these types of investigations.
ROLE OF AFP
The AFP was established in 1979 by the Australian Federal Police Act 1979, and is today responsible to the Federal Minister for Justice and Customs, Senator the Hon. Chris Ellison. It's role is the investigation and prevention of crime against the Commonwealth and protection of Commonwealth interests in Australia and overseas. Law enforcement functions performed by the AFP include, but are not restricted to, enforcing laws relating to drug trafficking, fraud against government revenue and expenditure, other forms of organised crime such as money laundering and people smuggling, and politically sensitive matters including corruption. The provision of witness protection services and close personal protection to Very Important Persons (VIPs) are also responsibilities of the AFP, as is the provision of community policing services to the Australian Capital Territory.
In its mission to provide dynamic and effective law enforcement to the people of Australia, the AFP today works in partnership with state and territory police services, government agencies and international law enforcement agencies. In particular, the AFP has a strategic alliance with the National Crime Authority (NCA) and close links with the Australian Transaction Reports and Analysis Centre (AUSTRAC) and the Australian Customs Service (ACS). The AFP provides the Australian National Central Bureau (NCB) for the International Criminal Police Organisation, Interpol.
Overseas, as at 30 June 2001 the AFP had 34 liaison officers in 23 countries. It provides members for United Nations (UN) operations in Cyprus and East Timor, the International Peace Monitoring Team in the Solomon Islands, and police services for the Commonwealth territories of Christmas Island, Cocos (Keeling) Islands, Norfolk Island and Jervis Bay.
EXPECTATIONS OF GOVERNMENT AND COMMUNITY
Government's expectations of the AFP are set out in Ministerial Directions which focus the AFP on:
countering and otherwise investigating illicit drug trafficking, organised crime, serious fraud against the Commonwealth, money laundering and the interception of assets involved in or derived from these activities;
investigating special references and performing special taskings from the Government;
providing an effective contribution to the implementation of the Government's 'Tough on Drugs' strategy;
continuing to develop a capacity to deal with new forms of criminal activity requiring special attention to be directed at the investigation of economic crime, in all its forms, transnational crime and crime involving information technology and communications (including electronic commerce).
countering and otherwise investigating organised people smuggling; and
providing an effective contribution to the whole-of-government approach to unauthorised arrivals.
Both the Government and the community expect that AFP to deliver a high quality investigation service, responding quickly and appropriately to serious matters and being unbiased in its approach. Additionally, though, the public expects that somebody will investigate all serious allegations against high profile people - including politicians. The question which often arises is whether the AFP is the most appropriate 'body' to conduct the investigation.
For instance, the AFP generally only investigates allegations which, if true, would amount to crimes under Commonwealth law. The public may well be interested in knowing whether 'deals' have been done within or between political parties; whether a politician is a drug user or associates with criminals; or whether there was more than work going on when the Member and his or her staffer attended the conference at the tropical resort. In some instances, the 'deals' alleged may amount to criminal offences, in others they may not. Drug use is normally a matter for state or territory police and the other issue is only of interest to Police if there has been a criminal abuse of travel entitlements - much as you can appreciate depends on the detail.
Even if the circumstances might - if true - amount to criminal matters, it is not necessarily the case that a criminal investigation is the most appropriate response. Criminal investigation is necessarily complex, usually lengthy and costly, adversarial and restricted in the types of evidence it can consider and use to prove a case. Evidence can often only be obtained with the order of a Court; people may choose not to co-operate or otherwise - we must even caution suspects that they need not speak with Police. Criminal conviction also requires proving a set of facts beyond a reasonable doubt.
On the other hand, other forms of inquiry or audit can often demand the production of evidence and force persons - suspect or otherwise - to answer questions. These processes can be quicker and less adversarial and need satisfy only the question of whether facts have been proved on the balance of probabilities in applying some form of civil or administrative remedy. There are many Commonwealth agencies with the necessary skills and powers to undertake such inquiries. If the requirement in the public interest is merely that ' questions be answered' then non-criminal inquiries are the most appropriate means. The AFP would often be reluctant to investigate criminally where another inquiry, with appropriate powers and competence, had been undertaken and found no misconduct. Alternatively, the AFP may encourage another form of inquiry to help it reach a position where it could make a more informed decision on whether criminal investigation was appropriate.
TYPES OF POLITICALLY SENSITIVE MATTERS
The AFP receives only a limited number of such referrals from Government. During 2000-2001, 23 such referrals were received and a further 16 matters were continued from the previous financial year. Twenty-four of those investigations have been finalised and two are currently before the courts. These matters included investigations of serious fraud, theft, unlawful disclosure of information and electronic crime. Matters investigated included
An investigation into the alleged hacking of the GST Assist web site, following the issue of 27,000 unsolicited email messages to people who had entered their details on the web site. Within hours, the person accessing the web site had been identified and interviewed. Legal and technical advice indicated that no offence had been committed and the AFP provided advice on site security issues.
An investigation into the alleged unlawful disclosure of highly sensitive information by a Department of Defence employee resulted in the arrest of two people. The matter is currently before the courts.
An investigation into the alleged inappropriate use of a Commonwealth Telecard which had been issued to a Minister. Over a relatively short time, a total of 11,035 telephone calls were made to a total value of $55,391.77. The Minister - who had not made any of the calls - subsequently refunded this amount to the Commonwealth. Material was forwarded to the Director of Public Prosecutions (DPP), which found that there is insufficient evidence for the laying of charges against any person.
An investigation into the alleged unlawful transfer of $8.7m from a government bank account bank account. It was alleged that a contractor employed by the Department used the computer access codes of another employee to make these transfers. One person has been convicted for their role in this matter and others are still to face court.
REFERRAL PROTOCOL
Since 1979, Australian federal governments (of both political persuasions) have adopted a consistent approach to the referral of politically sensitive matters to the AFP. The procedure requires that matters of a politically sensitive nature requiring the assistance of the AFP are raised with the Minister responsible for the AFP by the relevant Minister or Department in the first instance, rather than being referred directly by them to the AFP. This enables the Government to be informed at the earliest juncture of potentially politically contentious matters that may require AFP investigation.
The procedure exists only to enable the Minister for Justice to be informed of significant matters affecting his or her responsibility for the AFP. The Minister does not and should not have a power or function of deciding what particular allegations the AFP will or will not investigate. The decision to seek an AFP investigation will, unless the matter affects other portfolios, remain that of the complainant agency or its Minister.
On the other hand, if the situation is one where no decision to seek an investigation has been made because the agency concerned needs advice about whether a particular matter is of a kind appropriate for police investigation (either by the AFP or by State police), the normal sources of advice will be the DPP or the Attorney-General's Department, although in some cases such as where national security is involved the views of the Attorney-General might need to be sought.
An exception from this policy is made in the case of the Australian Electoral Commission (AEC) because of the special position that the AEC holds in relation to breaches of the Commonwealth Electoral Act. The AEC may require the AFP to investigate Opposition members, Government members and or their respective campaign workers regarding possible breaches of the penal provisions of that Act. For this reason, it is crucial that the AEC continue to be seen as an independent body and free from political influence.
REPORTING PROTOCOL
Successive Ministers, and the AFP, have been very careful to avoid situations where information provided to a Minister's Office could result in a real or perceived conflict of interest. Whilst this is particularly true in relation to referrals from the AEC, it also applies to other referrals of politically sensitive matters. On occasions, there will be a need to brief the Minister on these matters. Where this occurs, the information provided to the Minister is circumspect and includes:
the date of referral to the AFP;
brief details regarding the allegations (for example, 'On 4 November 2000, the AEC referred a matter to the AFP alleging that the names of people enrolled, but no longer residing in X electorate, were used by party supporters to cast votes for Y candidate');
the results of the investigation (for example, 'The AFP investigation of these allegations, which commenced on X, is now complete. No witness has been identified who can corroborate the alleged instances of vote rorting reported in Y or who can nominate persons involved in such activity. In light of these findings, the AFP intends to take no further action on either matter').
MEDIA AND OTHER ATTENTION
It is often the case that the public and the media have great interest in a matter. As you will all appreciate, it can often be difficult to communicate a complex message in a medium focussing on ten second sound grabs. For instance, how do you sensibly explain to the public the often subtle difference between
a tort and a crime
a Commonwealth matter and a state matter
a civil or administrative remedy as opposed to prosecution,
or distinguish between a finding that someone probably acted improperly and a criminal investigation not resulting in anyone being charged with any criminal offence.
There is often a public or political pressure for people to be 'cleared' of offences - often the subject of the allegation purports to want an inquiry just to achieve that end. The reality is that we do not conduct criminal investigations to 'clear' people. Sometimes, we may prove that the person committed the crime, or that someone else committed the crime but many times we reach a point in these types of investigations where there is no prosecution. How do we explain that the fact there was 'no prosecution' does not amount to a finding of innocence (and vice versa)?
To illustrate the impact of news media on politically sensitive investigations I draw your attention to the top five news stories for the year 2000 - these were identified by media monitoring company Rehame Australia. They were:
- The GST
- The Torch Relay
- The Telecard matter
- Petrol Prices
- The Opening Ceremony for the Olympics
- The fact that the Reith Telecard matter was the third biggest news story for the year 2000 highlights the media interest in investigations of this type.
You might recall that the various parties in this matter provided detailed "statements" to the media which were reported verbatim with accompanying commentary.
These commentators assessed the various "evidence", made a judgment call as to who was telling the truth and called for a resignation, a sacking, or if all else failed - an inquiry!
The AFP made the following observations at the time:
It is important to understand that there may be a significant difference between statements reported in the media and evidence that is admissible in a court in a criminal prosecution , and;
due process cannot be served by publicly canvassing operational details on investigations of this type.
There is similarly often a public or political pressure for investigations to be completed quickly or by a particular date such as an election. It is difficult to balance the need for a thorough investigation against such a need or desire for a timely result. Whilst the AFP will not compromise the quality of its investigations, on occasions we do recognise the need to reach and articulate a preliminary position. In a political environment, of course those who can gain some political advantage applaud this and conversely their opponents condemn us.
PROSECUTION
Whether or not the police decide to lay charges in a particular matter, the Attorney-General, by reason of the historical functions of that office, retains ultimate control over whether, in the public interest, a prosecution should proceed. However, under Commonwealth practice since the establishmen t of the office of Director of Public Prosecutions in 1983 such decisions are normally made by the DPP in the course of his or her day-to-day functions and intervention by the Attorney-General would occur only in exceptional circumstances. The various tensions and demands I have mentioned concerning investigation clearly carry over to the prosecution stage once charges have been laid or a brief of evidence provided. I would like to comment on just a few of those issues form a policing perspective.
WELL HEELED/BIG LOSS DEFENDANTS
There has been much written and said by prosecutors about the problems of dealing with well heeled defendants or those who potentially suffer a more significant loss through prosecution. In a political environment where an allegation can be a major threat, a prosecution or worse still a conviction can be the kiss of death. Accordingly we often see in these investigations the introduction of interlocutory proceedings during the investigation, as well as rigorous committal and lengthy trials. I will largely leave the commentary on these issues to the prosecutors amongst you - suffice to say that Police share your frustrations when defendants employ tactics which serve only to impede or prevent proceedings following their usual path.
GREATER INVESTIGATION THAN ON MERITS OF CASE? PROPENSITY TO PROSECUTE?
Finally, I will touch briefly on the allegations - often raised - that the investigations of politically sensitive matters are accorded higher priority than the merits of the case would suggest and that prosecutions are mounted on less robust evidence simply so there is a public process.
Those who make such claims largely do not appreciate the stringent accountability mechanisms and robust decision making frameworks applied by law enforcement agencies or prosecutors.
The decision to investigate is based, amongst other things on the seriousness of the alleged crime. The corruption of public officials, or abuse of trust by them, is extremely serious as it threatens the integrity of democratic structures just as much as any external threat to the territorial integrity of a country. They are serious matters and are seriously investigated.
MESSAGE
I have, I suspect, not told you anything new or exciting today. I have perhaps confirmed for you the what you expected to be the views of the law enforcement community I represent. I have asked many questions yet I do not expect to be offered many answers.
CONCLUSION
In conclusion, did the Deputy Prime Minister John Andersen have it right? I think you would agree that the answer is 'partly yes and partly no'. It is not so much smearing the reputations of police and parliamentarians that we need worry about. What is more important is that the public maintain confidence in police forces being independent of political government . The basis after all of our law enforcement activities is the consent of our communities. If our communities lose respect for the systems of justice or police, then we as police will lose the consent of the communities.