Law Council of Australia: 35th Annual Legal Convention
Australian Federal Police Commissioner Mick Keelty APM
Friday 23 March 2007
Thank you, Chairman. It is a pleasure to be here and I was very happy when Tim asked me whether I would consider coming to speak to you this morning. At the outset I acknowledge that I am delivering the speech on the land of the Gadigal People and acknowledge their elders past and present and their connection to the land.
It would be remiss of me not to mention that sitting in the audience today is the former Attorney-General who, in fact, was the Cabinet Minister who appointed me some six years ago. So it is lovely to reacquaint with Daryl Williams. And, of course, Rob Cornwall is here who was at the time and still is the Secretary of the department at the time of my appointment. So you can all judge whether I have been doing a good job or not yourselves and let me know at the end of my appointment.
The title of the conference The Changing Legal Profession: A World of Challenges is as appropriate to policing as it is to the legal profession. When Tim and I met we talked about some of the issues that the AFP was grappling with on the international side of policing and so what I have done is I have put together a talk about that, but I also understand that people may wish to take the opportunity to ask me questions about a whole range of issues, particularly on the topic of discussion this morning being the human rights issue.
The AFP’s role in the international arena has evolved. It has evolved suddenly. We now, today, have a presence in 26 countries around the world and some of those countries do not have Australia missions or embassy representatives, such as in Colombia and Bogota. Those overseas postings are largely to deal with the crime types that we deal with here in Australia, largely to do with narcotics, counterterrorism and people smuggling. Of course, some of those investigations and operations have led to tension from time to time between the legal and judicial frameworks in those countries as opposed to our own. I will talk to you about some of those shortly.
In addition to the international role of representing Australian law enforcement offshore the AFP has quite a significant number of police, nearly 700 police now, involved in offshore peacekeeping operations and capacity building operations and that figure will climb to some 1200 by the end of next year. We are one of the only countries in the developed world that has a capacity in policing to put offshore to deliver part of the legal justice systems in other countries and it is something that has become quite a key focus for both the organisation and, indeed, governments.
As you would have seen recently, our Commissioner in Fiji was asked to leave the country after the military coup by Commander Bainimarama and our Commissioner of the Royal Solomon Islands Police was declared a prohibited non citizen and prevented from returning back to the Solomon Islands after availing himself of leave over the Christmas/New Year break. So the challenges of these positions are quite confronting and they are very new. When I say we are evolving, we are evolving on a rapid basis, but also confronting things that we have never had to confront before both at the policing level and also at the policy level.
I will touch on the issues of rights in the new security environment, particularly human rights, and I will give you a bit of an outline on what we are doing in terms of human rights training and the development of other policing organisations around us on human rights. Some months ago, toward the end of last year, I gave a speech at the National Press Club which I titled Policing in a Foreign Policy Space and in the speech I raised issues that we have not turned our minds to before.
Whilst we in this country are quite used to the Westminster system of justice, whilst we in this country are quite used to and experienced with the separation of powers and whilst we expect that our police force will be apolitical, it is not the same in those countries in which we serve and that is creating a tension when we go to these countries to operate, but also it raises questions about how do you develop and train other policing organisations when you don’t operate under the same system yourself? I think we need to understand that the separation of powers is something that is vital to the way police operate in our own country, but it is something that is foreign to some other countries.
It would not be immediately apparent to you necessarily, but when the AFP has been deployed to countries like the Solomon Islands, countries like East Timor, we were in Papua New Guinea until about 18 months ago, but more recently we were deployed to Tonga after the violence that erupted in Tonga, and whilst it’s not immediately apparent, there is quite a difference in each of those jurisdictions and each of those legal frameworks in those countries about how they operate. Their government frameworks are quite different.
Tonga, for example, is one of the last feudal systems in the world and the people of Tonga were demonstrating and creating violence in arguments for a democratically elected Government and so we deployed our police and our military to Tonga to quell the violence and restore law and order and, in one sense, restore the feudal system. Quite the opposite in what we have done in other parts of the world like Papua New Guinea and like what we are doing in East Timor and like what we are doing in the Solomon Islands. In the Solomon Islands we are in support of the democratically elected Government and yet there is a lot of tension between the democratically elected Government of the Solomon Islands and the role of police in that country. So it raises and conjures up all sorts of issues that we now have to work our way through.
One of the things that we’ve tried to do, we’ve looked carefully now at the discretion we have as police officers, whether or not to use the powers that are available to police and whether the use of those powers and the discretion that we have in our own country does, indeed, apply when we are deployed offshore. It does become quite important because you could go to a country that is in disarray and you could look at the biggest problems or the problems that we would look at first here in our country and start to deal with those issues, but then suddenly find yourself at odds with the Government of the day and, more often than not, the Government that invited you there in the first place.
If you, for example, arrest and charge a Cabinet Minister for corruption, you actually change the makeup of the Cabinet and therefore, conceivably, could change the invitation to be there in the first place. So in terms of exercising of police discretion, what is the most valuable work to do first? Is the most valuable work to touch the hearts and minds of people, people who may see a poor performance from their local police organisation, people who don’t see service delivery as we expect service delivery in Australia. Women and children are affected by violence, domestic violence or in other ways, are the subjects of violent action or sexual abuse or what we would in our own country require a fairly rapid and immediate response.
So there becomes a question about what is done and what is done first and what’s the impact of that. That, in our own minds, in terms of the separation of powers and the apolitical nature of policing inherently suggests that we have to think about the cause and effect and what our actions might be translated to in those countries in terms of the reason why we arrested someone first and someone second, or the reason why we took a certain crime prevention strategy and not another strategy.
The other issue that it raises is that governments of the past have been quite used to deploying military force to establish security on the ground in states where there is some unrest or some violence and high levels of violence are obviously more appropriately dealt with by military interventions rather than police interventions. Less severe scenarios, of course, which involve lawlessness can perhaps be better dealt with by a policing intervention, but I also think that we need another dimension here and some of this touches upon your own roles and that is that there are other occupations. Once the security and the law and order starts to be established we need judicial systems in these countries and quite often the judicial system is in the same parlous state as the policing system. The correctional services system is in the same parlous state as the policing system. Outside of that the health and education is also, in these developing countries, something that is not getting the first line of attention because of the security situation.
So it is quite complex on what you do first and how you do it or the way you do it in a manner that engages the community and attracts the support of the community. In reality, the problems of these communities really exist in isolation from one another and it’s highly likely that worst case scenarios do require a military intervention in the first instance or a combination of military and policing intervention, but then what? If you are going to have a policing intervention you must have the criminal justice system that sits behind it and supports the action of the police otherwise people will be put into custody or put into situations where their liberty is removed from them with no system to deal with them and I think we’re seeing some examples of that around the world.
So, in essence, this then brings a sharp focus for us on human rights and human rights training and, I guess, the challenges that we are now facing can be summarised into three areas. One is the political and legal challenges that we face. The other is the legacy challenge. What is it that we institute that is left behind? At what point can these communities survive by themselves or survive with less of an involvement of our own people? There are cultural challenges, some of which I have spoken to you about.
One of the biggest challenges in the immediate region is the Wontok system where nepotism is part of the culture. We would call nepotism here in Australia as being inappropriate in most circumstances, particularly when it gets into the political arena, certainly when it gets into the policing arena and, most certainly, when it gets into the criminal justice arena, that because of someone’s affiliation or someone’s kinship with somebody else that they are favoured or get different treatment to someone else. It challenges my oath of office; without fear or favour, affection or ill will to faithfully discharge all my duties according to law. That is very different to some of the theatres of operation in which we are now involved.
Under our model policing represent the community. In fact, Sir Robert Peel who invented modern policing as we know in 1929 said that the only difference between a community and its police ought to be the fact that the police are paid to carry out the function of maintaining law and order for the community. In other words, police forces ought to be made up and constituted of the very community that they serve. What we are doing in this new line of work is we are bringing people from our country into another country not part of the community, not speaking that language, not having the same colour skin, not having the same cultural understanding and ties and trying to deliver a policing service to what is really a foreign community. It is very different.
Sitting in a court in some of these communities is very different. We have got the trial currently under way of the murder of one of our police officers in the Solomon Islands where the court has now adjourned and we talk to the prosecutors and we simply don’t know where we sit in the proceedings at the moment. We don’t know when the court is likely to re adjourn. We simply can’t follow the proceedings in a way that we would follow it here. Evidence that we would have thought could well and truly have been introduced in those proceedings was simply ruled inadmissible.
Whilst we are not criticising that at all. It is getting to understand these systems and working with them so that we are actually benefiting the community at the end of the day. Law enforcement and military force are very expensive. They are very expensive interventions to have and unless you have a goal in mind or a point in time where you reduce your intervention on the military and policing side to enable health and education and those other deliverables to be delivered, then you tend to run with a very expensive option, but you can’t have one without the other. It is very difficult to attract people, people like yourselves, to go and work in these systems and assist on pro bono or even on an AusAID basis to go and work in these systems unless you can satisfy yourself you are going to be able to live and operate there in a safe and secure environment.
One of the things it raises with us is that we are now more often than not being deployed on a complementary basis to our own Defence Force and that raises other issues. A Defence Force can and is deployed by Government without necessarily affecting its political standing, but taking on new roles for us means that we are weaving a course through the politics in order to keep the apolitical character of both the country in which we are serving and, indeed, our own country. If people thought that we were operating in foreign countries at the direction of our own Government it may have quite a negative impact on our presence in those foreign countries and on our understanding of why we are there in the first place. So it is a very tricky field of operation.
Our ability to promote and support the various criminal justice systems operating in our region means that we actually have to work with systems that we would judge here as being corrupt or as being subject to poor governance and it can be very frustrating. There are some examples that is raises that are not raised in the normal course of operations here. Arrests, for example; as I mentioned, do you walk away from high profile arrests?
In the Solomon Islands we arrested Charles Dausabea who was appointed the Police Minister whilst he was in custody. We would say he was a key and critical figure to the violence that erupted in the Solomon Islands between 18 and 19 April last year and he has since been charged with further offences. But do you step away from the fact that the police have reasonable cause to believe that he has committed those offences in order to allow the Cabinet or the Government to operate in the country or do you apply the law as you know and understand the law to be applied? It has caused a lot of criticism and it has caused, indirectly, the removal of our Commissioner from his position.
The question becomes, what do you do? If we are going to be criticised by the Government in these countries for making that arrest or for suggesting the proposed Attorney-General is subject to an extradition application by Australia, do you walk away from that? Or do you try and somehow draw a line or make a line between what you are trying to do and what the other country needs to do? Who judges that? Who judges what they need to do? Are they the best judges themselves or are we?
Conversely, within those communities I can tell you that having visited them that there is a lot of pressure from the community saying, when are you going to do something about this? When are you going to do something about him or her? There is a lot of community pressure to get things done as well and they become very difficult environments to operate within.
Fiji is another classic example where you have got a democratically elected Government been overthrown by an individual who has decided himself that the election was not a fair and proper election, despite the presence of quite a significant international community oversighting that election. How then does that place the Fiji police with the removal of their Commissioner? And in terms of transnational crime and the global nature of crime, what confidence can we have in maintaining relationships with the Fiji Police knowing that someone who we believe was a very good Commissioner and a very fair Commissioner for the Fiji Police, has suddenly been removed and someone installed? What does that do to future relationships? I have mentioned the extradition of Moti.
Immunities. Immunities became the central issue as to why we are no longer in Papua New Guinea. We sought to obtain immunities from prosecution in Papua New Guinea whilst we were present there and I think what has happened in other parts of our region, in the Solomon Islands, in Fiji, demonstrate quite clearly why you need immunities from prosecution if you are going to, as a foreign police officer, work in another state. We have seen recent examples, again going back to Solomon Islands, where Australians have been arrested and charged for offences where no evidence has been able to be produced. So were they arrested because they were Australian? Was that a political or a demonstration of a political position to arrest those Australians? So immunities from prosecution do become quite important when you are moving offshore to work in these countries.
It was the constitutional challenge to the immunities that we had as part of the Papua New Guinea deployment that ended up resulting in us having to leave the country. Who loses out of that? I mean, surely the Royal Papua New Guinea Police who are alleged to be involved in raping of prisoners, in prisoner abuses, in lack of governance, surely an organisation like that is screaming for development and for assistance and so is their community, but they have to go without because we can’t reach a position where we can deploy our police in a way that will benefit their community.
If I turn to the challenges of legacy and culture. To me the measure of successes in these missions is how we navigate our way through the challenges I have spoken about, and how we then establish the stability and the security for people living in these communities. There has been quite a significant body of research done on this. The United Nations has put a report in place on peace operations called The Brahimi Report and it talks about the role of policing in foreign countries should be:
• to uphold the rule of law;
• to uphold respect for human rights;
• to help communities coming out of a conflict achieve national reconciliation;
• to consolidate disarmament;
• to demobilise fighting factions and reintegrate them into the community;
• to find quick impact projects that make a real difference to the lives of the people in the mission area; and
• to look to the better integration of public policy in support of governance institutions.
Many of these are, quite clearly, functions that would be relevant even in our own jurisdiction as well as when we are working in these peacekeeping roles. But despite this, there is still a lot of challenge to delivering those sort of outcomes in the communities in which we are currently operating. I think the message here is not to expect to achieve these overnight. What we are trying to do is overcome decades and decades of cultural build up of different colonisations of these communities.
The East Timor example is probably the best. The Police Nationale Timor Leste, the national police force of East Timor, is the newest police force in the world and yet in its embryonic stages it has had development provided to it from no less than 25 different countries. So you can imagine, here is a police organisation already ethnically divided east from west being taught by 25 different other countries how to do policing. We saw the result in June last year when the police were unable to suppress the violence that erupted in East Timor leading to a significant involvement of Australian Defence and policing organisations to go back in. What we are trying to impart on these jurisdictions’ police, is the knowledge of the principles underpinning the profession of policing without going too far, trying to keep to the fundamental basics without trying to impinge on their own cultural frameworks and on their own kinship and understanding of how their communities operate.
To help us get this right we have been working with Flinders University and the ANU on a three-year evaluation called Police The Neighbourhood and one of the preliminary findings of this report helped in developing ourselves for this new role to provide a more focused course of training for our own police, particularly on human rights and particularly on language and coaching skills. If I just address the human rights issues.
Human rights, whilst very apparent to people of your profession, is not always immediately apparent how important that is to establish very early in the piece. History has shown that internal civil unrest is often coupled with not only a breakdown of law and order, but a failure on the part of high office holders and police to uphold and adhere to what are internationally recognised basic principles of human rights. Addressing the human rights issues, therefore, has to be an important element of these offshore deployments that we do to start the process of d¬e escalating conflict.
A failure to uphold human rights erodes the public confidence in the police, it hampers effective prosecutions in the court and it isolates the police from the community which then exacerbates the unrest. On the other hand, upholding the human rights or instilling in the police a culture of understanding and upholding of human rights leads to public confidence from the community and cooperation with the community. Robert Peel said something else. He said that the ultimate measure of policing is not necessarily the presence of police. It may well be the absence of police.
What he meant there was that the ultimate role of policing ought to be crime prevention and that whilst there is not too many police ministers or police commissioners who will stand up or, indeed, communities stand up and say we’ve got too many police, if you think it through, the less police you have the more effective the community would be in policing itself, or could be in policing itself. That is something that will only happen if people embrace some of the principles of governance and some of the principles of human rights.
It is not only for us about assisting the police in the host country in relation to upholding human rights, it is very paramount to us that our own police, before they are deployed offshore, need to embrace and fully understand the values of human rights as we know them in the international community, so only special people can really be selected for these overseas roles. They have to be different, they have to be engaging people and people who really have demonstrated their adherence to the values that we aspire to in our own country.
In another area of work on human rights alone, we have engaged Melbourne University to hopefully go with us in partnership, and we are in partnership, to win an Australian Research Council Linkage Grant that is going to help us deliver human rights training to foreign police here in Australia. So we will bring them to Australia and train them here. The vast majority of our international deployment missions are, in fact, in these countries where human rights abuses are commonly reported and the rule of law has broken down, but the other complexity which I alluded to before with the Police Nationale Timor Leste is that the police force themselves are divided already on ethnic or cultural grounds. They Royal Solomon Islands Police is divided, the Malaitans and the Guadalcanalese are divided.
We are also working with other agencies such as the non government organisations and human rights institutions in these offshore deployments. Once of the first meetings I had before we went to Solomon Islands, believe it or not, was with Greenpeace here in Sydney and we actually joked about it. Here I was sitting with all the heads of the Greenpeace organisation. But if you were to think about that for a minute, there are not too many organisations in the world who have good intelligence networks on where logging and corruption in logging camps has taken place. We work with some of the religious NGOs whose people on the ground have a much better and thorough understanding of the community than what we are able to engender on our training courses.
One of the other bodies of work that might take you by surprise is that we’ve embarked on a HIV/AIDS project in conjunction with the New Zealand Police. One of the concerns I’ve had, and I have been working with the Lowy Institute on this, has been the deployment of police, particularly from small island nations to some of these offshore operations. It exposes them, particularly when you are talking about police being deployed to some of the countries where HIV/AIDS is endemic. It does risk those police coming back to their own communities and introducing HIV/AIDS to their own communities. So an important part of the work we are doing on that side is to educate police before deployment, particularly those coming from developing countries, about the problems associated with HIV/AIDS and HIV/AIDS problems then being delivered back to their own small communities.
Another area that we are working on is delivering human rights training to the Indonesian National Police in Aceh. They have invited us in for scoping study which we have now completed in Aceh…which has seen its own problems of tension and conflict in Indonesia, but it has also seen natural disasters as well. The Australian Government and the Indonesian Government created what is called the Jakarta Centre for Law Enforcement Cooperation which is an academy that we have built at a place called Semarang which his about an hour west of Jakarta.
The centre is for academics and practitioners to come and teach various aspects of particularly counterterrorism training and particularly at the academic level. We have had some 2000 students from all around the world come there. We have had significant interest from Europe Union, in fact, a lot of interest. They have just completed building the accommodation block for us out of donations from the European Union for the centre. One of the courses that we have introduced, again in association with Melbourne University through Professor Tim Lindsey and Professor Abdullah Saeed is a course entitled Islam, Law and Politics in South East Asia.
We have been successful in getting students who are police operatives from obviously Indonesia, but the Philippines, Thailand, China, Russia, Poland and Denmark as well as ourselves to these courses to ensure that when we are embarking on counterterrorism investigations we actually understand some of the cause and effect of the radicalisation of future or potential terrorists, but also to understand more about the religion and how Islamic politics impacts on what we are trying to deal with at the ground level in these countries.
So hopefully though some of the things I have said to you this morning you will understand that we are, I guess, not just about going out and doing the first job that comes to your attention and making arrests of the first person that needs to be arrested. It is a long-term project to try and deliver to these communities not only a focus on human rights, but also a focus on good governance and it is not an easy task. One of the dividends of this work, though, and I firmly believe in this, is that with such a large number of police and, as I mentioned to you, it would be something in the order of 1200 by the end of next financial year, 2007-2008, that is 1200 police on a rotating basis from all the states and territories in Australia as well as the AFP who will come through that IDG program, International Deployment Group program.
Once they have finished their mission, they come back and restart their normal duties here in Australia and I think the dividend that we have not turned our minds to or have not put the measures in place for yet, is that we must be delivering back to the communities in Australia better rounded, better developed, hopefully people with a broader outlook about policing and some of the basics of policing as well as the cultural benefits of working in these countries. So critical to the success of our overseas missions is the ability of us to understand the local culture and put in place measures that are suited to the local needs. If that is not achieved it can create more tension than success and it will undermine the rights processes and the governance processes.
Capacity building, it has to be remembered, is a complex phenomena and it does involve long-term commitment. We can’t expect to change things overnight and ultimately we need people to get a taste of what good governance is in these countries, what good safety is, what security is and get them to understand what the benefits are to them that flow from our presence in these countries. When we withdrew from Papua New Guinea you would have expected hue and cry from the community, particularly the business community, because it will affect investment, it will affect the economic outlook for the countries. GDP in countries like the Solomon Islands is directly affected by the violence that erupted there in April last year. But we don’t hear anything from the communities.
We don’t hear the hue and cry and so we have missed something here. We have missed a touchstone that we ought to have reached when the communities are not saying to us we need you back. So we have to rethink and make sure that when we are going into these places that we understand the aim of why we are there and understand that the beneficiaries have to be the community. Because what we are trying to do is improve their quality of life over the longer term and ultimately empower them to take control of their own situation.
I will finish there, Tim, and I think you wanted me to open up for questions.
SPEECH CONCLUDED