Police Integrity Commission Amendment (Reports) Bill
Debate resumed from 29 May 2003.
Mr DAVID CAMPBELL (Keira—Minister for Water Utilities, Minister for Small Business, Minister for Regional Development, and Minister for the Illawarra) [10.30 a.m.]: The Government cannot support the Police Integrity Commission Amendment (Reports) Bill. The bill is a fundamentally misguided piece of legislation. I am advised that previously it was opposed by the Commissioner of the Police Integrity Commission [PIC], Mr Terry Griffin, and the two bodies with statutory oversight roles of it, the Inspector of the Police Integrity Commission and the parliamentary Joint Committee on the Office of the Ombudsman and the Police Integrity Commission. The honourable member for Epping introduced this bill in response to allegations that nobody at the PIC is prepared to take responsibility for the Operation Malta report. The bill is based on the false assumption that a person who writes a PIC report, or part thereof, will have been responsible for making any assessment or opinion expressed therein. It confuses authorship with accountability.
Somebody is prepared to be accountable for the Malta report and other PIC reports. That person is the PIC commissioner. Commissioner Griffin advised the parliamentary joint committee on 20 September 2002 that he, as commissioner, was responsible and accountable for all PIC reports, including the Malta report. The honourable member for Epping, in his second reading speech, made a number of assertions that suggest steps were taken to prevent Judge Urquhart, who presided over the Malta hearings, from writing the Malta report. These statements should not remain on the parliamentary record unchallenged. The honourable member for Epping notes the bipartisan approach that was taken in introducing legislation to ensure Judge Urquhart could continue presiding over the Malta inquiry when his non-renewable term of office as commissioner expired. He also suggested that the legislation was never put into effect. Again, this is not the case.
The Government introduced amendments to the Police Integrity Commission Act on 2 July 2001 to enable Judge Urquhart's term as commissioner to be extended for a period of up to one year, or to allow him to be appointed an assistant commissioner, with the delegated role of finalising the Malta investigation, whilst retaining his judicial tenure and entitlements. Judge Urquhart was given the choice of these two options and he chose the latter so that he could focus exclusively on the Malta inquiry, whilst the new commissioner attended to the remainder of PIC business.
The honourable member for Epping also suggests that Judge Urquhart was given the power to preside over the hearing, but his instrument of appointment as an assistant commissioner specifically excluded him from writing the report. Again, this is not the case. As the former Minister for Police advised the House on 31 July 2003, Judge Urquhart was appointed as an assistant commissioner until publication of the report, and his appointment continued on that basis. The instrument of appointment delegated all of the commissioner's functions in respect to the Malta inquiry, except certain functions where there is a statutory presumption against delegation, including the making of reports to Parliament. The making of a report to Parliament is distinct from the preparation and writing of a report under section 96 of the Police Integrity Commission Act. The PIC advised that Judge Urquhart's instrument of appointment in no way excluded him from preparing the Malta report. The honourable member for Epping suggests that Judge Urquhart was not adequately involved in the preparation of the Malta report. The PIC has advised:
It was Judge Urquhart himself who implemented the relevant report writing process. The Judge was integrally involved in formulating the assessments and opinions expressed in the Malta report, and approving its final form.
The bill contains provisions that will not be found in any other legislation establishing an investigative body. The Independent Commission Against Corruption Act 1988, on which the Police Integrity Commission Act was modelled, contains no such provisions. The Royal Commissions Act 1923 and the Ombudsman Act 1974 contain no such provisions. I am unaware of any similar Act anywhere that contains such provisions. There is a good reason for this. Quite simply, the provisions are flawed, restrictive and do not have their intended effect. It is an inescapable administrative reality that a number of officers will continue to have responsibility for the actual writing of different parts of PIC reports. PIC reports are prepared corporately, with input from the presiding officer, counsel assisting, the report project manager, PIC research staff, the PIC solicitor, other senior PIC staff and the commissioner.
The reports of the ICAC and other investigative bodies are also prepared corporately. Justice Wood did not sit down behind his computer and write each word of the police royal commission reports unaided. If all the reports of investigative bodies to Parliament were prepared by a single officer, who may have many other responsibilities, we would all still be waiting for many time-sensitive reports. Such reports are prepared corporately by necessity, not through any desire to avoid accountability. The former Inspector of the Police Integrity Commission, in his report on the practices and procedures of the Police Integrity Commission, tabled in Parliament on 18 June 2003, concluded that the appropriate person to sign off on PIC reports is the commissioner, as was the case in the Malta inquiry. He further stated:
It is appropriate that reports should be prepared corporately and not exclusively by the commissioner or presiding officer. The caveat is that the report writing procedures must make sufficient allowances for the person presiding over the hearing to have an opportunity to provide sufficient input into the report.
The inspector went on to state that there was ample opportunity for Judge Urquhart to have input into the report and the PIC has advised that the judge did avail himself of that opportunity. On 18 September 2003 the parliamentary joint committee tabled its report on the Fifth General Meeting with the Inspector of the Police Integrity Commission where it indicated it concurred with those comments by the inspector. Even if it were desirable to make one person the author of a PIC report, this is simply not practical. The honourable member for Epping acknowledges this, to some degree, in recognising that there may be unavoidable causes for a presiding officer not writing a report.
Whilst he acknowledges illness or death may prevent a presiding officer from writing a report, he is strangely silent on whether ceasing to hold office is an unavoidable cause. The bill, as drafted, provides that where a presiding officer ceases to hold office in the PIC, that will be treated as an "unavoidable cause". This is because section 96 of the Police Integrity Commission Act clearly provides that the preparation of reports is a function of the PIC and section 11 of the Act provides that a function of the PIC can only be exercised by a person who is currently a PIC officer. The honourable member for Epping argues that many of the problems with the quality of the Malta report were caused by certain PIC officers ceasing to hold office, or having the nature of their office changed, during the course of the Malta inquiry. However, he is not up-front about the bill's failure to address this concern of his—presumably because he recognises that legislation which attempts to lock in personnel for indefinite terms will not stand up to the scrutiny of the courts.
The PIC will continue to prepare its reports with input from a number of different officers. The practical effect of the bill would be to require that the officer responsible for each sentence or punctuation mark in a report have his or her name affixed to each of those parts of the report. That is bureaucracy gone mad. The Government and the PIC wish to streamline reporting processes, not strangle them with meaningless red tape. The greatest problem with the Malta process was the delay, a delay caused by overly formal procedures. Requiring individual PIC officers to be named as responsible for writing a particular comment may allow false arguments that the view expressed was simply the view of an individual and not that of the PIC, thus diminishing the credibility attached to PIC reports.
The naming of individual officers in connection with particular comments may increase the risk of PIC staff being targeted by persons who object to the comments made about them in PIC reports. The honourable member for Epping argued that the findings and recommendations of the PIC should be treated as if they were the decisions of a single judge, particularly as they can damage reputations. The report of the parliamentary joint committee report of 18 September 2003 noted that the PIC is substantially different from a court of law and the implications of that distinction are not readily understood by some. They have contributed significantly to many of the criticisms surrounding the conduct of the Malta inquiry. PIC reports are not court judgments—the PIC cannot sentence people to imprisonment and it cannot award damages; it can only make inquiries, express its findings and make recommendations. PIC reports may damage reputations, as may many other reports made to, or comments made in, this House.
Requiring every parliamentary report or comment to be made in the same manner as a court judgment is not the answer. The answer is to ensure that appropriate accountability procedures are in place. So far as the authorship of PIC reports is concerned, both the inspector and the parliamentary joint committee have made it clear that the procedures are appropriate, and the Government accepts their views. That does not for one minute mean that the Government is satisfied that the PIC handled Operation Malta in the best possible manner: quite clearly it did not. The document entitled Report on the Review of the Police Integrity Commission Act, tabled in December 2002 by the then Minister for Police, the Hon. Michael Costa MLC, made it clear that there were concerns about the length and legal formality of the Malta hearings. The report noted section 20 (2) of the Police Integrity Commission Act, which provides:
The Commission is required to exercise its functions with as little formality and technicality as is possible, and, in particular, the Commission is required to accept written submissions as far as is possible and hearings are to be conducted with as little emphasis on an adversarial approach as is possible.
The report recommended that the Minister for Police ask the PIC Inspector to review the appropriateness of the PIC's procedures and practices in respect to the formality and length of its investigations, having specific regard to section 20 of the Police Integrity Commission Act, and to advise on whether those procedures and practices are appropriate or whether specific improvements may be made to them. The Minister did that, and the inspector tabled his report on 18 June 2003. It found little regard was had to section 20 during the Malta investigation, insofar as it relates to the non-adversarial nature of proceedings. The report contained 24 recommendations for improving the practices and procedures of the PIC. Those recommendations were welcomed and adopted by the PIC.
The bill is not about whether the Malta inquiry was well handled. The Government knows that it could have been handled better, and set up a clear and transparent process for improving the PIC's performance. The manner in which the PIC exercises its important functions has been improved by the inspector's recommendations—this bill will not improve anything. Therefore, the Government opposes the Police Integrity Commission Amendment (Reports) Bill 2003.
Mr PAUL LYNCH, (Liverpool) [10.43 a.m.]: I oppose the Police Integrity Commission Amendment (Reports) Bill, introduced by the honourable member for Epping, and note that the honourable member for Cronulla did not seek the call. The bill seems to seek to do a number of things. Each Police Integrity Commission [PIC] report must identify the author or authors of the report, and indicate which author writes which part. Additionally, the person conducting what is termed "the hearing" should write the report. The bill is fundamentally misconceived. The honourable member for Epping seems perturbed that the PIC in its Malta report did not deal as favourably with Mr Brammer as the member thinks it ought to have. That is a thoroughly inadequate basis upon which to attack the current structures of the PIC.
The satisfaction with, or hostility to, a particular result seems to have been translated into hostility to the process. The result is being confused with the process. That is not a satisfactory basis upon which to attack the current PIC structure. The core of the member's attack is that Judge Urquhart heard the case but did not write the Malta report. As I said, that is a fundamentally misconceived argument. Certainly, Operation Malta had a number of difficulties and flaws; that is now broadly conceded, including, I think it is fair to say, by the current commissioner. However, the proposal by the honourable member for Epping is not the way to deal with these issues. In my view, a much better course is to review the large number of recommendations that were set out in the report by the PIC's Inspector Ireland in relation to Malta. I note, of course, that notice was given of this bill before the contents of that report were available.
The core of the approach by the honourable member for Epping is, in essence, that the PIC does not function as a court. His argument is that no person is taking responsibility for authoring a report because the PIC is a corporate responsibility. He argued that the person presiding at a hearing has the opportunity to assess the demeanour of a witness and is thus in a unique position to write a report. Moreover, as I understand the argument of the honourable member for Epping, the current practice of the PIC, as seen in its Malta report, is contrary to basic principles dating back to the year 1215. The honourable member continues to argue that it is grossly unfair, a denial of natural justice, and wrong and dangerous.
The premise of those arguments is that the PIC is a court and should be treated as one. That is the nub of the problem in this debate: the PIC is not court; it was never intended to be a court. Assuming either that it is, or that it should be, fundamentally mistakes the notion of the PIC. If the honourable member for Epping wants the PIC to be a court, he should move that the PIC be abolished and that we get rid of investigative agencies. There is a significant distinction between courts and investigative agencies and the honourable member for Epping has blurred that distinction in this bill and in his contribution. However, his attack upon investigative agencies and commissions of inquiry places him in some very interesting company.
In Australia there is a long tradition of hostility to commissions and inquiries, rather than having matters determined by charge before a court. That radical and civil libertarian tradition argues that people should not have to be submitted to inquiries and tribunals but should face their accusers in a properly constituted court where the Crown bears the onus of proof. In many circumstances I personally have a very great regard for that tradition, including for the great Doc Evatt and the equally great Lionel Murphy. One of the best expositions of that argument is in Lionel Murphy's famous address to the National Press Club in August 1983. For honourable members who are interested, that address is contained in detail in Jenny Hockey's biography of Lionel Murphy at page 279. It is a very impressive tradition.
I am slightly intrigued to find the honourable member for Epping sharing company with my heroes, such as Doc Evatt and Lionel Murphy. There is no doubt that that is the reason the honourable member for Cronulla is not prepared to participate in the debate. The consequence of the position taken by the honourable member for Epping, if one follows through his logic, is that we must abolish investigative inquires and commissions and replace them with courts. That is, we must overturn the recommendations of the Wood royal commission. We know that the honourable member for Epping and people on his side of the House voted against the establishment of that royal commission. It seems that their hostility to the establishment of the commission has continued into hostility to the recommendations of the commission.
More than that, the template for the PIC legislation was the ICAC legislation. If we are to be consistent, and follow through the logic of the position taken by the honourable member for Epping, we must move to abolish not only the PIC but also the ICAC, which I have always thought was claimed as one of the achievements of the previous conservative Government. The preparation of reports on a collective basis by commissions is hardly unusual. Indeed, the usual course in royal commissions is, at the very least, for counsel assisting and presiding officers to collaborate on the preparation of reports. That is, the principle defended at such length by the honourable member for Epping in his second reading speech is breached in almost every royal commission held in this State.
It is equally wrong to say that no-one takes responsibility for the reports of the PIC. Clearly, someone does: the corporate entity called the Police Integrity Commission. Commissioner Griffin has individually taken responsibility for that in evidence given before the Committee on the Office of the Ombudsman and the Police Integrity Commission, of which I am the Chair. Of course, in the precise instance that has prompted this discussion, Operation Malta, the inference is that Judge Urquhart has been excluded from the process of report preparation and that, thus, the perspective of the presiding officer has been lost from the final report. Any such argument or inference is simply wrong. This can be seen clearly from the evidence of Assistant Commissioner Tim Sage to the parliamentary committee given on 16 May 2002. Referring to Judge Urquhart, he said:
The judge has been involved and his appointment is until the report is published and he is involved in a number of workshops in settling submissions that come within the report, and that is no different to what has happened with any report that has been written in the commission.
Commissioner Griffin indicated also that Judge Urquhart would have a contribution to the content of the report. That indication was also confirmed in a letter from the PIC solicitor, Mr Robson, dated 27 February 2003. In part, that letter stated:
Judge Urquhart was indeed closely involved in all relevant steps in the report's preparation, including formulation of the commission's assessments and opinions concerning Mr Brammer.
There is further comment on this topic by the then Inspector of the PIC, Morris Ireland. He prepared a report on the practices and procedures of the PIC arising out of a request by the then Minister for Police. The report was provided to the Parliament in June 2003. At paragraph 5.83 on page 106 of the report the inspector said:
During the course of Malta the term of the then Commissioner, His Honour Judge Urquhart, QC, expired. On 20 August 2001 Judge Urquhart was reappointed as an Assistant Commissioner for the purpose of continuing until completion of the hearings in Malta. On 15 November 2002 the draft report was submitted to His Honour for comment. It is apparent that although His Honour had returned to the bench of the District Court by the time the Malta report was drafted, there was ample opportunity for His Honour to have input into the Malta report.
Those passages, I think categorically, establish that Judge Urquhart made a significant contribution to the Malta report. He was certainly not excluded from the process, despite the arguments or inferences made by the honourable member for Epping. The honourable member for Epping also seems to argue that this bill should be supported on the basis that only the presiding officer can write the report because only that officer has the advantage of seeing what is referred to as the demeanour of a witness. The demeanour of a witness is said to be critical in forming conclusions as to evidence. There are two major problems with this assertion. The first is that the PIC is not delivering a judgment or deciding upon guilt. It is simply deciding whether to recommend that further action be considered. In that context "demeanour" is far less critical than it is sometimes thought to be. I refer once again to Mr Robson's letter in which he stated:
Witness demeanour is evidence only as it occurs under the observation of the forum before which the person is giving testimony. It would not only be inherently unsafe, but in a very real sense false logic for the Commission to base a prosecutorial opinion or recommendation upon "evidence" of an affected person's demeanour. Such an opinion or recommendation would assume that the affected person will behave the same way in a later prosecution as he or she did in the hearing before the commission. As a general proposition, the commission first and foremost looks to direct evidence to support its opinions and recommendations and would be cautious about relying on something as transitory or illusory as a person's demeanour at a particular point in time.
In short, it may be argued that demeanour is significant to a court in determining guilt, but it does not assume the same magnitude in the PIC's consideration of recommending prosecution. There is considerable argument about how significant the demeanour of a witness is in the decision of a court on the finding of guilt. I have always been a little sceptical about this point. I direct the attention of those interested in this debate to the autobiography of Chester Porter, QC, entitled, appropriately enough, Walking on Water. I note that he is not from my political tradition. Indeed, he is from the tradition on the other side of the House. I can recommend his autobiography as an interesting and enjoyable book. Throughout the book the author, one of this country's most experienced and respected Senior Counsel, is highly critical of those who are overreliant on the demeanour of a witness. At page 51 he said:
As for demeanour, good demeanour is as likely as not to be the characteristic of a confidence trickster or a bent policeman. Bad demeanour is likely to be caused simply by nervousness or a wandering mind.
He also quotes Lord Justice Atkin, who said:
An ounce of intrinsic merit or demerit in the evidence, that is to say the value of the comparison of evidence with known facts, is worth pounds of demeanour.
My final quote from Chester Porter is at page 217:
However it is dangerous in the extreme to rely upon the demeanour of witnesses. As I've said before, in my opinion good liars often have much better demeanour than careful tellers of the truth.
It seems to me the fundamental flaw in this bill is that it confuses the nature of the PIC and assumes that the PIC ought be a court. Some of the issues were well put, once again, by Inspector Morris Ireland in evidence he gave to the committee that I chair on 25 June 2003. He said:
In formulating the recommendations it is first paramount to recognise that the PIC is a commission of inquiry, not a court. This distinction has ramifications for practically every aspect of the way in which proceedings are conducted, including the outcome and reporting of such proceedings. It is evident from the submissions received in this inquiry that this distinction is not easily understood at times either by persons called to appear or on occasion by counsel representing those persons. The gravitation towards a courtroom mentality, unhelpful as it is for the purposes of a commission of inquiry, is not easily discouraged.
Indeed, I make the point that Inspector Ireland's view about the Malta inquiry was that people behaved too much like it was a courtroom and that was one of the reasons difficulties arose. I also note that Inspector Ireland in his evidence quoted at length from various academic authorities to maintain the significance of this distinction. There is one more issue I would like to raise in this debate, that is, what I can only regard as the fairly hysteric attack launched by the member for Epping on 26 June 2005 on Assistant Commissioner Tim Sage. The attack stemmed from the fact that Commissioner Urquhart's term as commissioner expired on 18 August 2001 during the Malta inquiry.
On 20 August Judge Urquhart was appointed assistant commissioner to preside over the rest of the hearing. This was accomplished by an instrument of appointment that was reproduced in the Malta report and was executed by Mr Sage. The honourable member for Epping seems perturbed that Judge Urquhart's term was not extended by way of a specific Act of Parliament. That did not happen for a very simple reason: it did not need to. The mechanism adopted meant that Judge Urquhart was able to keep presiding over Malta but did not have to be encumbered by all the other responsibilities of a commissioner. There is no evidence that this was in any way contrary to Judge Urquhart's wishes. In fact, the Minister in his speech made it clear that it was in accordance with Judge Urquhart's wishes. That is my understanding informally of what happened.
I also note that the honourable member for Epping fulminated about the instrument of appointment not including the power to write the report. There are two points to be made on this issue. The first is that the phrase "write the report", as used by the honourable member for Epping, does not appear at all in the Act. The phrase used is "making a report under this Act". There is an argument, which was also adverted to by the Minister, that this term does not include actually writing the report. Indeed, not having that function devolved upon Commissioner Urquhart would not have prevented him from physically drafting the report, if that had been an appropriate course.
A further point is that in the Act the scheme envisages the function under section 11 (5) not normally being delegated. That is, the function that is not normally delegated to an assistant commissioner was not delegated to him. Indeed, as I understand the position, Judge Urquhart did not wish to continue as commissioner. Clearly, his wishes on this point had to be accepted. As a result of his wishes not to continue as commissioner, he became an assistant commissioner. It seems in that context totally unreasonable for the honourable member for Epping to be critical of Tim Sage, who in my experience has been a very competent and impressive officer of the PIC. This bill is fundamentally misconceived. It reflects confusion on the part of the honourable member for Epping about the nature of the PIC. I suspect it reflects his underlying belief that the PIC and the ICAC should be abolished. The bill should be rejected.
Mr SPEAKER: Order! I call the honourable member for Cronulla. I note the honourable member for Cronulla is another lawyer. There has just been a good example during this debate why the House should be preserved from more lawyers.
Mr MALCOLM KERR (Cronulla) [10.56 a.m.]: I seek clarification: Did you say "should be preserved for more lawyers"?
Mr SPEAKER: "From more lawyers".
Mr Barry Collier: I am shocked!
Mr MALCOLM KERR: I join in coalition with the honourable member for Miranda on this occasion. I concede that having heard the speech made by the honourable member for Liverpool the evidence is against me in relation to Mr Speaker's proposition. However, I will do my best to retrieve the situation. There has been a degree of confusion about the Police Integrity Commission and courts. It has to be acknowledged at the outset that the Police Integrity Commission is not a court. However, there are similarities in the legislation relating to the Independent Commission Against Corruption [ICAC] and the Police Integrity Commission. They are similar because it is important the courts, the ICAC and the Police Integrity Commission should act justly. That is the whole argument behind the bill that has been put forward to this House by the honourable member for Epping.
The speech by the honourable member for Liverpool would be appropriate if the bill related to the abolition of the Police Integrity Commission. This bill relates to no such thing. Despite the comments by the honourable member for Liverpool, there is not one word in the bill that would indicate the honourable member for Epping wants the Police Integrity Commission abolished. In fact, the honourable member for Epping voted for the establishment of the Police Integrity Commission and the ICAC. In this bill the honourable member has sought to strengthen the Police Integrity Commission in relation to arguments of fairness and to state that the Police Integrity Commission, as an important institution, should be seen to act justly. I refer honourable members to the following comment made by the Minister for Small Business:
This bill confuses authorship with accountability.
The bill does no such thing. It seeks to ensure, through authorship, that there is accountability. This bill is not just about Operation Malta; it is about any of the investigations conducted by the Police Integrity Commission [PIC] and its consequent reports. A commissioner might preside over hearings or investigations that are to be conducted. To all intents and purposes he makes a decision as to what material will be placed before the Police Integrity Commission and, therefore, presumably on what basis decisions will be arrived at. It could also be said that the Supreme Court is an institution and it would be possible for the Court of Appeal simply to make a judgment without indicating whether there was dissent, or what was the nature of the judgment handed down by individual judges.
Decisions given by the Court of Appeal reveal that, even if a judge concurs with another judge, he will place his name on the record and state whether he concurs, or he will hand down a judgment. That is relevant not because the Police Integrity Commission is a court; it is relevant because its reports, like judgments, will affect individuals. It is therefore important for members of the public and persons affected to establish on what basis decisions have been arrived at. The Minister for Small Business said that the Police Integrity Commission cannot impose a sentence and cannot award damages. He concedes that that can seriously affect people's reputations. It is therefore important that the credibility of the reports of the PIC is established.
One of the factors to be taken into account when establishing that credibility is who made the decisions reflected in the report. The Minister for Small Business referred to several instances, for example, royal commissions and the Ombudsman's report. In each of those cases authorship of the reports is quite prominent. The honourable member for Liverpool referred to the Wood royal commission because someone's name is associated with that report and, to all intents and purposes, the royal commissioner wrote that report. Similarly, we are also able to establish the authorship of the Ombudsman's report. The honourable member for Epping is seeking to establish the credibility of the PIC by determining who is the author either of the whole or part of the report.
When the PIC makes a report that is not the end of the matter. The matter has gone before the PIC because there is public interest in establishing the outcome of its investigations. It is also in the public interest to know who adjudicated on or made the decisions contained in the report. I am glad the honourable member for Liverpool referred to a book written by Mr Chester Porter because I have read that book. I know Chester Porter quite well and have spoken to him about these matters. I think that book also contains references to bodies such as the Independent Commission Against Corruption. Once again, the common thread is justice. People appearing before courts, the ICAC or the Police Integrity Commission have to be dealt with justly.
Honourable members would be aware of the old maxim "Justice should not only be done, it must also be seen to be done." The need to ensure transparency is what resulted in the introduction of this bill. The Minister for Small Business spoke about accountability but he was referring to an impersonal body being accountable. We are dealing with the affairs of human beings and with a report that has been written by human beings. It is therefore important to identify who came to the conclusions on which that report is based. It could be argued that the purpose of this bill is to enhance the work of the Police Integrity Commission. I again refer to the speech made earlier by the honourable member for Liverpool.
As I have shown, this bill is not about the abolition of the PIC. The honourable member for Epping explained in his second reading speech why he introduced this bill. I confidently predict that he will not be calling for the abolition of the PIC because that is not the intention of this bill. Having regard to the arguments of Lionel Murphy and Dr Evatt, the honourable member for Liverpool failed to state whether he agrees with them and whether he thinks there is a place for bodies such as the ICAC and the PIC in the scheme of things. Anyone reading the writings of Dr Evatt or looking at the speech given by Lionel Murphy at the National Press Club might think that the best way of dealing with human affairs is through the courts and not investigative bodies. The honourable member for Liverpool failed to say whether he finds that convincing and whether he believes there is a role for the ICAC and the PIC.
Mr ANDREW TINK (Epping) [11.08 a.m.], in reply: When the honourable member for Liverpool concluded his contribution it was interesting to observe that his first critic was Mr Speaker. That probably reflects the opinions of all those who were listening to the contribution of the honourable member for Liverpool, either in the Chamber or on the monitor. It seemed to me to be an extremely catty, self-righteous and self-indulgent contribution, which is probably one of the reasons why he has remained on the government back benches for so long. I confidently predict that he will remain on the back bench for the rest of his career. At one stage he got so tied up in what he was trying to establish I thought he was referring to Robespierre's committee of public safety.
Mr Malcolm Kerr: He probably thought you were Mark Latham.
Mr ANDREW TINK: He probably thought I was Mark Latham. This serious topic, which is in a narrow compass, does not deserve or warrant the sort of contribution that is the trademark of the honourable member for Liverpool. There is no question in my mind, or I suspect in the mind of any other honourable member, about the critical importance of the role played by both the Police Integrity Commission and the Independent Commission Against Corruption. The issue is whether problems arise with investigative bodies in the course of their activities and whether there is room for improvement. We do not want bodies such as the PIC to be abolished, but if shortcomings are identified from time to time it can be argued that their processes should be improved, changed and amended. The Government has occasionally introduced amending legislation in relation to these investigative bodies—which is what should happen.
The bill suggests that there is room for improvement. Indeed, the then Minister for Police, the Hon. Michael Costa, conceded that fact in the context of the Operation Malta report. He tabled a report that described the Operation Malta inquiry as a mess. I thought it was a dog's breakfast; it was a disgraceful effort. That is what prompted the Opposition to introduce this bill. What is the key problem with the operation of the Police Integrity Commission? For me, it has always been the lack of identification of those who take it upon themselves to make findings and comments and to draw conclusions about people who, by force of law, are required to answer questions and expose themselves to assessment in the witness box and in other ways before the Police Integrity Commission.
The Government seeks to make a distinction between a commission and a court of law but I do not think that argument holds water. Royal commissioners often take personal responsibility for the report of the royal commission over which they preside. I cite the present Cole inquiry as an example. This is not the first royal commission that Mr Cole has presided over. When Cole is involved in a royal commission he takes, and is seen clearly to take, responsibility for the proceedings of that commission. He has counsel assisting, but it is his work. The Government regularly appoints Justice McInerney to head royal commissions. He is a very good royal commissioner. McInerney royal commissions are the work of Justice McInerney. It is very simple: his name is on the report. It has nothing to do with a court of law. Justice McInerney exercises royal commission powers and identifies with his work, and that is as it should be. Wood conducted an outstanding royal commission into the Police Force, and he is clearly identified with his work.
The most objectionable thing about the Operation Malta inquiry—and there was much to object to—was that nobody took ultimate responsibility for the report, which trashed many reputations. The honourable member for Liverpool is fixated on Mr Brammer for some reason. As far as I am concerned, the plight of Mr Brammer is neither here nor there: he is just one person who was affected by the Operation Malta report. Many witnesses to that inquiry have had their reputations tarnished permanently by people whose identity we still do not know—and will never know. That report drew conclusions for which nobody has claimed responsibility. I think those who have been dealt with in that way have a right to know who commented on and drew conclusions about them. If that does not occur there will be no accountability. Anonymous faces at the commission—who are unknown to the public and to the witnesses—will be able to put little bits and pieces in reports and will not be held accountable for their actions in any meaningful way because they will not be recognised publicly as the authors of the work. Fundamental to the principle of accountability is the identification of those who contributed to the making of the decision.
Mr Ireland has been mentioned in this debate as having some input in this issue. On 27 February 2003 Mr Robson, the Police Integrity Commission solicitor, sent a letter to Mr Ireland. The letter is instructive because it explores how the process started. Apparently the procedures were initiated by Judge Urquhart when he was the PIC commissioner. This is not a "get Judge Urquhart" exercise, but he was responsible for establishing the workings of the commission. The letter states:
The Commission's present report writing processes were put in place by Judge Urquhart … They are quite detailed and involve a number of steps including:
_ Review of evidence obtained and submissions by Counsel;
_ Consideration of submissions by persons appearing with leave;
_ Collation of relevant evidence to form the basis of the report in the format used by the Commission;
_ Develop preliminary opinions, assessments and potential recommendations;
_ Project review;
_ Peer review;
_ Senior officer review;
_ Review and approval by the Commission.
Perhaps I am missing something, but I find this process really troubling. If the PIC is still following that procedure, it is high time things changed. It appears that many people have input down the line and then remain behind the corporate shield of the Police Integrity Commission. That means nothing: it is a legal entity, not a person. Legal entities do not make findings or conclusions about witnesses; human beings do that. People against whom adverse findings are made are entitled to know which other human beings are responsible. That is what this bill is about: putting a human face on the commission's decision making. People should not hide behind a corporate veil, which they use to shield their true actions.
It may well be that people have input in formulating a judgment and in the course of a royal commission. But a living person must deliver the product in the report and stand responsible for it. I would think Mr Cole, Mr Wood and Justice McInerney take a great deal more responsibility for their actions than the PIC appears able or willing to do in its proceedings. If these are the current procedures of the Police Integrity Commission, they need to be changed urgently. The letter goes on to say:
The weighing and assessment of evidence is a corporate function of the commission.
I find that a most offensive proposition because it dehumanises the process of reaching decisions about witnesses that may affect them severely. If a group of people reaches a decision, forms a view or makes some assessment of evidence, they should identify themselves, not hide behind an anonymous corporation. In some ways an even more troubling proposition is the letter's description of people who sit at the back of hearing rooms and then, together with the person presiding, contribute to the process. The letter says that those who preside over the hearing should assess the demeanour of witnesses. But they are not the only people able to make observations about the conduct of witnesses. The letter states:
… operational staff are also present in the hearing room, and the proceedings can be viewed throughout the Commission via closed circuit television.
As I understand it, those who sit on the bench listen to the evidence and if they must take a break for any reason the hearing is adjourned. The first rule of evidence is that the person presiding must hear all the evidence before he makes decisions. In recent times a district court judge—he is no longer in that post—was criticised severely for going to sleep on the bench. There was justified public concern that he was not capturing and understanding all the evidence presented to him. If people are coming and going from the back of the room during PIC hearings we can have no idea of whether they are present to hear all the evidence given by a witness. They could say, "Gee, when I was in the room for a while I saw so-and-so giving evidence and I had this impression" and that view could be included in the peer review, senior officer review or project review process that Mr Urquhart put together years ago. There is no log or indication of which people were present when particular questions were asked. That is disgraceful.
The people who make decisions and deliver judgments have to be seen to be present during the entire hearing. If the PIC allows its officers who contribute to these reports to sit at the back of a room and come and go, they ought to be logged in and out so we know exactly when and for what parts of the evidence they were present. The fact that that has to be suggested shows the extraordinary shortcomings of this procedure. Quite frankly, the procedure militates against the proposition that there ought to be somebody who is accountable and identified, and that reporting to Parliament is not just a corporate function of the commission.
The reporting by the Independent Commission Against Corruption may well be similar on paper. However, the honourable member for Cronulla will remember that when someone other than Mr Temby conducted a hearing he was always careful to identify who conducted it. I recall the legendary inquiry into the Roads and Traffic Authority that was conducted by Mr Roden. Mr Temby made it clear that it was Roden's report, which he identified in his report to Parliament. He did that so we knew, the library knew and people in the future would know that it was Mr Roden's work. It was a good report, in my opinion. In regard to the PIC, the people involved should be identified. At the very least, the person who conducted the hearing should be identified.
I stand by this important bill, which will strengthen the accountability of the PIC and the ICAC when authors are identified. The distinction between a court and a commission is a nonsense. For example, Commissioner Cole, Commissioner McInerney and Commissioner Wood may be supported by a whole lot of people, but they clearly identify and stamp their reports. I ask that whoever is responsible for running an inquiry and reporting at the Police Integrity Commission identify themselves in the way that Cole, McInerney and Wood do. There was a monumental reluctance to do that in regard to the Operation Malta inquiry. No wonder, for who would want to put their name to it and accept individual responsibility for that mess? It ought to be fixed for the future. If it is not Mr Griffin's report, he should identify whose report it is when he transmits it to Parliament. If he does not do so, there is no accountability and everyone at the PIC hides behind the corporate veil. Unfortunately, that will lead to a climate in which there is another Operation Malta, which we do not want. We must ensure that people who are responsible identify themselves and are accountable.
Question—That this bill be now read a second time—put.
The House divided.
Mr J. H. Turner
Mr R.W. Turner
Question resolved in the negative.