Legal and Constitutional Affairs Legislation Committee
Estimates hearings, 18 October 2011
Australian Federal Police
- Mr Tony Negus, Commissioner
- Mr Andrew Wood, Chief Operating Officer
- Mr Andrew Colvin, Deputy Commissioner, Operations
- Mr Peter Drennan, Deputy Commissioner, National Security
- Mr Frank Prendergast, Assistant Commissioner, International Deployment
Senator RHIANNON: Yesterday there were media reports that a submission by the Australian chapter of the International Council of Jurists has been given to the Australian Federal Police and that it details evidence that corroborates and substantiates the findings of the UN Secretary-General's expert panel in respect of war crimes and crimes against humanity that took place in Sri Lanka at the end of 2009. What are the next steps for the AFP with regard to this submission and how long will the AFP take to assess the submission?
Mr Negus: I personally received in my office late on Friday afternoon the submission of which you speak. It is quite a lengthy document. It is almost a ream of paper, to give you an idea of the size of the document. We asked for that to be assessed as a matter of urgency and that assessment is ongoing. It is very difficult for me to give you a time frame around that but it is being treated seriously. We also acknowledged receipt of that publicly and in the press and also to the International Council of Jurists. That assessment process is underway at the moment and it would be premature for me to say anything more than that.
Senator RHIANNON: If this is an operational matter then I understand if you cannot answer it, but has the AFP been building a dossier of evidence on anyone in relation to Sri Lankan war crimes?
Mr Negus: Again, that goes to our operational activities. That would be difficult for me to answer.
Senator RHIANNON: What is the AFP's practice in respect of people living or visiting Australia who are accused of war crimes that may have been committed in other countries?
Mr Negus: Certainly, if matters are referred to us or we become aware of issues that we might act upon independently, we would conduct an investigation into that. Again, it would be dependent on what the circumstances were. Obviously jurisdiction can become an issue in these matters, so there are some technical legal issues. We would sometimes work with the Attorney-General's Department to clarify those issues and with the Director of Public Prosecutions to take those matters forward.
As far as war crimes are concerned generally, we do take them seriously. We have launched a number of investigations. Some of those are ongoing as I speak. They are complex legal areas, particularly where most of the evidence that can be obtained is usually offshore, and we need to make sure there is a reasonable chance of the matter progressing. There are a lot of factors for consideration before we take these matters forward to a prosecution.
Senator RHIANNON: Thank you for explaining the process. To take it possibly one step further, if the AFP do find evidence in this current submission that warrants the commencement of any legal war crimes proceeding, what is the immediate next step?
Mr Negus: It depends on the jurisdiction that can be applied. Some of these matters may well be referred to the International Criminal Court or they may be prosecuted here in Australia if there are appropriate jurisdictional issues we can actually treat.
Senator RHIANNON: Was the AFP asked by the Australian government before the appointment of the Sri Lankan High Commissioner Thisara Samarasinghe as to what was known about his involvement in the Sri Lankan conflict?
Mr Colvin: No, not to my knowledge.
Senator RHIANNON: In another country I understand that the AFP now has recommendations of the coroner on the Balibo inquest and that you have had it for a number of months. Could you inform the committee of the status of the AFP's work in this area.
Mr Negus: It is actually more than a number of months; it is actually almost two years that we have been working on this case. There are a range of inquiries, as I mentioned before, that need to take place offshore which are the subject of mutual legal assistance requests, and because of that I am constrained in what I can say. But there have been some difficulties and, as you can appreciate, working with foreign governments and getting access to particular individuals or particular sources of evidence can be problematic. But the AFP continues with that investigation; it is still active. I cannot really say too much more than that without stepping into some dangerous territory and compromising the ability of those foreign governments to provide us with that assistance.
Senator RHIANNON: I am sure you appreciate, because you did not nominate the time frame yourself, that it is certainly difficult. So there really is nothing more that you can put on the record about that. I think it raises disappointments for the people involved.
Mr Negus: I am sure it does. We have been in contact with the families who live in Australia and given them fairly frequent updates when we have something to tell them about the progress of the investigation. I have to say that much of this is a matter of us submitting particular legal instruments to try to obtain that evidence in overseas jurisdictions and then it is a matter of waiting, and much of that is outside our control. We continue to push forward on that to get to a position to make a judgment on whether there would be sufficient evidence to take any further action, but we are not at that stage yet and we still have a number of inquiries outstanding, as I have said.
Senator RHIANNON: I may come back to that but I want to move on to some of the aspects of RAMSI. I understand that in August 2010 a Solomon Islands High Court judge, David Cameron, threw out evidence because AFP officers investigating a murder had, in his words, 'forgot basic procedures, including reading the suspect their rights'. Are the AFP officers who came before this judge in this case still with the AFP? If they are, are they still working in the Solomon Islands? Were the AFP officers advised on appropriate procedures that should have been used and should be followed in future?
Mr Negus: I do not have any notes on that particular topic but I do have the head of our International Deployment Group, Assistant Commissioner Frank Prendergast, here. He was running the organisation's component at that time. Mr Prendergast should be able to address some of those issues.
Mr Prendergast: In answer to your question about the current status of those people, I would need to take that on notice, but I can say that our officers who deploy overseas are very well prepared. They are experienced police; that is one of the criteria before they deploy. They need five years experience and they also go through extensive pre-deployment training.
Senator RHIANNON: Were these officers given immunity? I understand that is part of the arrangements that you have in the Solomons.
Mr Prendergast: That is correct, but the immunity would not be an issue in the case you are referring to.
Senator RHIANNON: Why is that?
Mr Prendergast: The immunities kick in when there is a legal process that involves perhaps a criminal prosecution of the officers or a civil proceeding that might involve the officers. This is a normal court issue that comes up every day across the country in criminal courts across the nation; it is not an issue where the immunities would be a factor.
Senator RHIANNON: How many incidents since the inception of RAMSI have there been where the immunity has been invoked?
Mr Prendergast: In relation to an individual officer?
Senator RHIANNON: Yes.
Mr Prendergast: None, by Australia.
Senator RHIANNON: Has it been invoked in any other way?
Mr Prendergast: It has been invoked recently in a matter before the Solomon Islands High Court, in relation to a civil matter.
Senator RHIANNON: What was that?
Mr Prendergast: It was in relation to an issue about the disclosure of police practice and methodology.
Senator RHIANNON: Is the fact that it has not been used an active decision of the AFP operations in the Solomon Islands not to use it, so to give more integrity to the operations there, or is it more that it just has not been something that has come up for you?
Mr Prendergast: When a set of circumstances come up where it may be invoked they are considered and a decision is made whether to invoke the immunities or not. For example, there have been some matters that involved AFP officers where the immunities could have been invoked but we have chosen not to.
When I say it has not been invoked other than in the one incident I am talking about, that is by Australia. Other nations have chosen to invoke it—RAMSI is a regional initiative—and other nations have chosen not to. It just depends on the circumstances.
Senator RHIANNON: Thank you for explaining that. I understand there are two documents marked 'Highly protected' relating to the case of three Solomon Island MPs who claimed the AFP fabricated charges against them for inciting the 2006 post-election riot. Can these two documents be released?
Mr Prendergast: I would need to consider that. They are marked 'Highly protected'. I am aware of the case you were speaking of, but I do not have the latest situation on that issue. I believe it was back in the Solomon Islands court recently. I will take that question on notice.
Senator RHIANNON: Thank you. In what way was it back in the Solomon Islands court?
Mr Prendergast: The issue that those documents were raised in was in respect of a civil proceedings in the court in the Solomon Islands. That is the context in which those allegations were raised.
Senator RHIANNON: Do you agree that while these documents are not being released that contributes to a cloud over the AFP's operations in the Solomon Islands? Wouldn't it be better to help clear up how this issue arose?
Mr Prendergast: I do not agree that it does create a cloud. Obviously perceptions are an issue. If you look at the RAMSI mission and its history in the Solomon Islands, we conduct regular surveys about public perceptions about RAMSI, how effective RAMSI is being and whether people want RAMSI to stay or not. Those surveys show a uniformly high acceptance of and desire for the RAMSI mission to continue.
The issues you are referring to now relate to a court matter. These sorts of issues get raised in civil cases all the time and they are really a matter for the courts in many cases to deal with. I think you need to take each legal proceeding on its merits. You need to look at the implications of the release of those documents on both operational grounds and legal grounds. Sometimes there are good operational reasons and good grounds, say in relation to witness security and the security of people who may have come forward and given evidence in particular proceedings, to protect that material. That is the sort of basis that these decisions would be made on.
Senator RHIANNON: In the response you just gave you said in relation to actions in civil courts that these are happening all the time. But surely you would agree that this is a very unusual case and that, however it plays out, it is not to the benefit of the AFP or the Australian operations in the Solomon Islands. I was surprised that you used the terminology because it is not happening all the time.
Mr Prendergast: Sorry, Senator, I am not talking about that particular case. I am talking about civil cases where documents are called and assertions are made about particular actions. In terms of our release of the material, there needs to be some very detailed consideration about the possible impact of the release of that material, and that is what I was referring to. The case you are referring to is not a case that is directed at the AFP; it is actually a case where those particular individuals were suing the Solomon Islands government.
Senator RHIANNON: But I do understand that the AFP are caught up in it—that there have been allegations made that they have fabricated charges.
Mr Prendergast: That is correct.
Senator RHIANNON: Yes, and that is quite serious.
Mr Prendergast: It is, but it is being considered by the court in the Solomon Islands. I think the issue we have been considering is the release of records. What I am saying is that, in terms of the release of any sort of protected record, there needs to be some very careful consideration of the impact of that release—and then, obviously, the court has a role in that.
Senator RHIANNON: So you are happy to take that on notice and come back to us if those documents can be released?
Mr Prendergast: That is correct.
Senator RHIANNON: Thank you. How many AFP personnel are based in the Solomon Islands as part of the RAMSI for 2010-11, please?
Mr Prendergast: I think the current figure is 143.
Senator RHIANNON: Have those numbers gone up or down since previous financial years?
Mr Prendergast: They have gone down. We had a much larger number there in August 2010 in respect of the Solomon Islands election, and there has been a draw-out of those numbers, in accordance with our planning, down to the current level.
Senator RHIANNON: Do you expect there to be a continual draw-down of these numbers?
Mr Prendergast: Our projected staffing levels for next year are around 109, bearing in mind they work inside the broader participating police force, which also includes New Zealand Police and police from every other participant in the Pacific Islands Forum.
Senator RHIANNON: What portion of the total funding for RAMSI goes to the AFP?
Mr Prendergast: I would need to take that on notice, Senator.
Senator RHIANNON: Thank you for that. I am just interested—
CHAIR: Senator Rhiannon, sorry to interrupt, but do you have many questions to go?
Senator RHIANNON: I have a couple more.
CHAIR: We will keep going with you and then break for lunch.
Senator RHIANNON: Sure. Sorry, I just realised the time. Mr Prendergast, could you give us an assessment of how the AFP sees the future of RAMSI.
Mr Prendergast: Yes, I can. I think the RAMSI is a unique mission by world standards, and it has made very good progress against its objectives. There were elections held by the Solomon Islands people in August 2010, and those elections went very well. I think that, when you compare that with what occurred in 2006, it is a major step forward. The main focus of the AFP in the Solomon Islands is the development of the RSIPF, the Royal Solomon Islands Police Force. When we first deployed, we had a dual focus: one was to restore stability and the other was to develop the capacity of the RSIPF. Our focus now is shifting from the stability operations aspect to more of a capacity development focus, given the internal development of the RSIPF and the general settling of the political situation in the Solomon Islands. That being said, there is a lot of work still to be done. There are some underlying issues in the Solomon Islands that still impact on the enduring nature of the current stability, and there are still some issues with the RSIPF's capacity and capability that we are addressing. So my assessment is that progress has been made, the progress has been good, but there is still work to be done.
Senator RHIANNON: Thank you very much. Mr Negus—this is back on Sri Lanka—were you aware of the Sri Lankan High Commissioner's role as head of the navy during the war when he was appointed high commissioner?
Mr Negus: No, I was not. Really, this has only come to our notice since the report was given to the AFP on Friday, so my knowledge prior to that was non-existent.
Senator RHIANNON: Thank you. In response to a question from Senator Brandis, you said that one of your people is stationed in Sri Lanka. Are you aware that, in September, a boat leaving Sri Lanka carrying 44 asylum seekers was stopped by the Sri Lankan security forces; and, if you are aware of that, did the Australian Federal Police officer stationed there assist the Sri Lankan security forces with any information about that boat and, possibly, in stopping the boat?
Mr Negus: I might get Deputy Commissioner Colvin to answer that question.
Mr Colvin: Senator, certainly we are aware. As we work with a number of partners around the region there are a number of vessels that get stopped by our regional partners. We are aware that that vessel was intercepted by Sri Lankan authorities. In terms of our specific knowledge at the time and information we may have provided, I will have to take that on notice. Suffice to say, we are working with the Sri Lankan police service on a range of fronts including people smuggling and broader trans-national crime and building their capacity. I would have to take on notice our specific knowledge of that particular venture.
Senator RHIANNON: I have some other questions relating to that so I will put them all in on notice.
CHAIR: We are now going to break for one hour for lunch.
Proceedings suspended from 12:35 to 13:35
CHAIR: We will reconvene our public hearing into the Senate's legal and constitutional affairs consideration of supplementary budget estimates. We have the Australian Federal Police with us, and we are going to go back to Senator Rhiannon for a few minutes and then to Senator Brandis.
Senator RHIANNON: Thank you, Madam Chair. Mr Negus, I would like to return to the issue of the AFP officer working in Sri Lanka. Could you inform the committee where he is stationed—where he works out of? Is it the Australian High Commission or the Sri Lankan police department?
Mr Negus: I will pass over to Deputy Commissioner Colvin for the specifics.
Mr Colvin: He is based in Colombo. He works at the Australian High Commission. He is an accredited officer with the High Commission in Sri Lanka and he works almost exclusively, I would say, with the Sri Lanka Police Service but out of the High Commission.
Senator RHIANNON: Who is he immediately accountable to?
Mr Colvin: Like all of our liaison officers, he has accountability to the mission and the head of mission, but ultimately he is an AFP officer and he is immediately accountable back to the AFP.
Senator RHIANNON: How would you define his work? Is it purely advisory to the AFP and to the Sri Lankan authorities, or is there an operational aspect to it as well?
Mr Colvin: He is a liaison officer. He is not in a position to perform any operational duties. He is there as a conduit of information between the Sri Lanka Police Service and us, and he is also there to assist with the development of Sri Lanka Police Service capacity.
Senator RHIANNON: Being a conduit for information means that you often have to collect the information. Does that mean that he may observe the boats when they are brought back, having taken people potentially to Australia? Would he be involved in that capacity, not actually in operations but there when operations are being carried out?
Mr Colvin: Not necessarily. We are very careful with our liaison officers not to overstep the line of what is a proper policing function performed by the local authorities. So in terms of vessels that are stopped by the Sri Lanka Police Service, he would be liaising with the Sri Lanka Police Service to see what intelligence might be relevant that we could use in Australia, or what assistance we may be able to provide to the Sri Lanka Police Service. It varies of course depending on the circumstances, but as a general rule he is there as a liaison officer and he has to draw a very distinct line between what he does and what the Sri Lanka Police Service do.
Senator RHIANNON: But you said 'not necessarily', so there could be occasions when he is actually present in terms of being able to assess the information or get the information. Would that be a correct assessment?
Mr Colvin: I do not want to rule out anything in particular, Senator, because I do not want to then have to say that there was an occasion when he was aware a boat was being brought into the Colombo wharf and he was there. It is not a normal part of our business to do that, because that is the proper response by the Sri Lanka Police Service.
Senator RHIANNON: In terms of the conduit of information, is that going both ways, both from the AFP to the Sri Lankan authorities and from Sri Lanka via the AFP officer back to Australia? Is that how it works?
Mr Colvin: That is right. The flow of information is both ways and there are tight protocols around how that information is managed and what type of information can be passed and what is passed.
Senator RHIANNON: Thank you very much. I have just a short question about the AusAID funding. How much of the AusAID funding makes up the proportion of the AFP funding?
Mr Negus: Senator, we actually work with AusAID very closely. I think we are the second largest deliverer of AusAID's funding behind AusAID, so it is a large proportion. But we will just have to get that figure for you.
Senator RHIANNON: I am happy for that to be taken on notice. You receive, as you have said, the largest proportion of aid money after AusAID itself. Australian aid money that you receive goes to projects. Do you keep that separate from your core AFP funding? Are there some projects that you will only undertake because you receive aid money? If so, what are they?
Mr Negus: Yes, there are. We would have to take that on notice. There is a range of those projects, a large number. Some projects, a certain percentage, would be ODA-eligible and the rest might come from other funding sources. Some projects, certainly, are funded 100 per cent through ODA, because they are development activities or capacity building activities which fit within the very strict rules that AusAID apply across their funding streams.
Mr Wood: In the financial year 2010-11, ODA funding received by the AFP was $233.3 million. On question No. 58 coming out of last estimates asked by Senator Barnett, there is a breakdown of ODA funding from 2007-08 through to the current budget, and then what is locked into future years' budgets.
Senator RHIANNON: Thanks for that. I will go back and look and see if I have further questions.
Mr Drennan: I would just like to clarify some answers to questions asked before lunch. With regards to the three members that were asked about in terms of whether they were being returned to Australia—they have. Two of those members were seconded officers from the Victoria Police and they are now back working with the Victoria Police. The third officer was an AFP federal agent who was attached to one of our offices in Queensland.
With regards to the issue on immunity, that immunity in a civil case was not invoked. The court dismissed the matter before it was required that it would be invoked. So there has been no instance where we have had to invoke our immunities in the Solomon Islands.