Jack Waterford | Keep AFP out of National Anti-Corruption Commission for best outcome

That is a big risk, and it ought to be avoided from the start. The NACC commissioners must resolve to hire from elsewhere. We want the best possible NACC, and it will not be a good look if corruption in government is being monitored by a body which didn't succeed in finding much while it had the jurisdiction in the matter. The public would be cynical. Leaving out AFP investigators on secondment prevents any weakening of the AFP. It will also prevent the highly undesirable situation where police investigate themselves, and, usually, pronounce that there is nothing to see here.

The AFP is itself to be subject to the NACC, and, if history is any guide, many of the matters the commission will have to examine will involve allegations of police corruption. The NACC predecessor for the investigation of corruption in police and law enforcement bodies, known as the commission for law enforcement integrity, was deeply secretive, not at all transparent, and hardly publicly accountable. It was not, on its face, very effective. Yet it found regular instances of corruption, even if many thought that an entirely different and more accountable approach might have found more.

One must take the AFP at its word that it is a highly efficient and effective crime-fighting body, of impeccable integrity with deeply experienced skilled officers. There is not much objective evidence. But it is certainly what one of its best-funded areas - its public relations unit - is continually suggesting, not least with regular media statements, from both national and ACT level, accusing, trying and convicting people before they even reach the courts.

Annual reports and police statistics are not a reliable guide to police efficiency, activity or productivity. We hear, for example, of new record drug hauls every other day, inviting the question of why, if the amounts being seized are ever higher and higher, they can be triumphant about it. More reliable, if still subjective advice from the Australian Criminal Intelligence Commission, through checks in sewer systems, does not suggest much impact on supply. Nor on demand. If seizure activity was significantly affecting the market, or the profits in the illegal drug trade, one might expect enormous fluctuations in price and availability, at both local and national levels.

We never see anything suggesting decisive interceptions although sometimes police activity temporarily shifts demand from one illegal drug to another. Perversely, of course, reducing the supply can force prices up, and thus make drug sales more worth the risk. The cynic might add that this increases the incentives for those involved in drug importation and distribution networks to corrupt police and others supposed to be trying to stop them. The AFP, and people in agencies associated with the AFP, such as the crime commission and the body monitoring large-money movements, have not been immune from the temptation of such corruption.

It has been clear since the revelations of Philip Arentz, who blew the whistle on made-up NSW police statistics 50 years ago, that it is easy to simply make up police statistics. Only a few years ago, the Victoria Police was caught out faking records of more than 250,000 breathalyser tests that it had never performed. I could not imagine that the AFP could be capable of such perfidy, particularly when it can run up the numbers at will, without bothering to direct its resources at the problem lying behind.

Thus, one sees random breath tests being performed at times and in places where it is unlikely that many drinking drivers will be stopped, and hardly any tests being performed late at night, when police numbers are at minimal levels, even if a higher proportion of drinking drivers are on the road. It is sometimes alleged that some people in the law enforcement game are on quotas of detected infringements. Heaven forfend! But it is noticeable that matters such as the number of breath tests performed are on police KPIs, though without specification of how strategic or tactical the testing is.

What this means is that statistics, including statistics of drug seizures, clear-up rates, numbers of people charged, average breathalyser readings and the like are never a reliable indicator of the level of crime in the community. Or of the effectiveness of police. At most, they may be an indicator, even then not very reliable, of the amount of police activity on a problem.

If police are more diligent in organising breath-testing at appropriate times and places, one can expect that more people will be charged. Some stern police officer will then be allowed to hector the community saying that he is very disappointed, as if he has evidence that drink-driving, speeding, or drug possession has become more prevalent. He hasn't.

ACT AFP officers are focused on ordinary crime in an urban community, and in that sense have functions like police in other states and in the Northern Territory. Common law crimes such as murder, rape, assault, robbery, burglary, theft and fraud, and offences associated with criminal gangs and drugs pre-occupy their detective divisions. They develop over time some experience and expertise in their fields, proportionate, unusually, to the incidence of the crime in their community.

The ACT has a small criminal underclass but is essentially a very bourgeois community with lowish levels of serious crime. Even with training interchange with states, such as NSW, having minimal activity, the ACT struggles to build up a critical mass of expertise. It shows, not least, when the better and brighter of local detectives seek more glamorous work at national levels. Even skilled national AFP detectives have little against which they can be benchmarked or held to account.

This is a major problem in some of the self-selected areas of national AFP expertise. The AFP, for example, is deeply opposed to the sexual exploitation of children, particularly overseas. Until it decided to get involved, no-one in Australia was doing much in this area, other than Border Force if it accidentally fell over pornographic material. This meant that its entry into this crusade did not involve much in the way of jurisdictional squabbles, regular whenever the feds go into a conventional law enforcement area.

As it has achieved well-publicised successes, partly with the assistance of ASIO, the Australian Signals Division and Austrac, it has devoted increased resources to it. Those working on this scourge have also given themselves more surveillance powers, originally granted to prevent espionage and terrorism. Ministers, politicians and senior bureaucrats can see no downside in this crusade - so centres are created and opportunities to grandstand are generously available. A great upside. And anyone questioning the activity, or the powers being used, can be accused of sheltering paedophiles.

Police surveillance, intrusion, computer-capture and bugging, originally granted with strict controls only for national security and intelligence matters, are continually encroaching into ordinary criminal investigations, and without much in the way of accountability or checks and balances. How much better that police can piously proclaim that this is necessary to track down and punish paedophiles rather than to find social security fraudsters, or high-level tax evaders.

Is anything wrong with this? Not as such. But two things are worth remembering. First, statistics on international child sexual exploitation offences are a function of investigative activity, not of the offences themselves. The public has no way of knowing whether AFP activities are making a difference or are best focused at the problem. There is nothing in the AFP PR, for example, which tells us much about the activity of organised crime, which is surely involved. And surprisingly less than one might imagine in the light, as opposed to the "dark" internet. Is it a problem of such matters not fitting into the narrative?

About 95 per cent of all child physical and sexual abuse is said to occur in or near the victim's home. Most often the perpetrator is a close relative living in the home, or a regular visitor or neighbour. So-called "stranger danger" - a misleading concept invented by police - represents only a tiny fraction of cases. The performance of state and territory police forces in investigating and prosecuting such cases is lamentable.

The lack of police focus on the problem, akin to the neglect, until recently, of domestic violence, is a scandal, especially given the resources going to a small subset of the problem. I suspect that police who cannot solve such crimes would not be much good against corruption, where, first, they have no experience or history of activity, and where, in any event, perpetrators are more subtle and sophisticated than the typical child abuser.

It does not appear that the zeal accompanying international sexual abuse has migrated to the much more prevalent and problematic home-grown variety. A little more zeal has gone into the prosecution of perpetrators of child sexual abuse in institutions, the subject of a Commonwealth royal commission. Physical and sexual abuse of children by authority figures such as teachers, priests, detention centre and residential care staff have been estimated to make up about 5 per cent of cases of abuse. In recent years most police activity has been concentrated on cases identified by the royal commission rather than on the establishment of ongoing and routine systems just in case patterns of abuse continue.

Not much of the foregoing establishes that investigators from the AFP are incapable of finding and proving corruption of government processes by public servants, and those at their elbow. I have no doubt that some investigators, though not many middle managers, would be excellent, and that detaching them from their current duties to working on corruption might be at a cost to their current functions. But it would be safer to recruit outsiders - from other investigative bodies, including anti-corruption agencies, intelligence services, overseas, and state police forces. The NACC could also make more use of teams, partly staffed by forensic accountants, lawyers, computer experts and engineers.

READ MORE:

But it would be no good if they were merely detached or seconded to the NACC. That suggests that they will have to return and re-establish themselves in an already highly political and politicised operation, objects of suspicions, not least to those of their colleagues most likely to be subject to temptation. Even where they can rise above ordinary "police culture" - and the AFP has a very vigorous one, at all levels - the very closeness of the detectives, and the police establishment, to the objects of attention - would invite suspicion.

There is too long a history of the police hierarchy involving itself in investigations, in the briefing of ministers, politicians and bureaucrats of progress, and, sometimes, of abruptly cancelling inquiries on grounds connected with federal or police politics. Even of tip-offs from senior police to suspects under investigation. This is not to suggest that every detective would be under suspicion of such matters. But it shows why the NACC should begin by assuming that the AFP is compromised by its past connivance with bad or partial conduct, particularly politicians.

Deep concern about police corruption has a long history in Australia, but there were fits of activity against it from about 50 years ago. Outside observers stressed the need for independent, professional and detached investigation of complaints, but police vigorously argued for internal investigations.

First, they said, only they had the expertise to do them. Second, keeping them inside the force meant that one could use industrial powers over employees to insist on answers (if sometimes with unacceptable costs to the capacity to punish misconduct). Third, if the public did not trust police investigating police, for the obvious reasons, some external official, such as the Ombudsman could cast an eye over the resolution of the more serious complaints, and, if necessary, publish a report. This was the line used with the ACT and Commonwealth Police, and continued at the formation of the AFP in 1979.

Ombudsman-supervision has never been a great success, in part because the entire police hierarchy has tended to treat it with contempt, and often, has not even seen much of a vice in consciously misleading or ignoring its recommendations.

Critics were not satisfied, but the politicians, usually more afraid of the cops than cops are of them, were. Some police complaints units were tough on individual offenders, particularly those involved in violence and abuse of power over ordinary citizens (if not young men or the underclass). But system and policy complaints - over failure of police to attend classes of crime, or to investigate - were routinely dismissed, often without investigation.

As a current inquiry in Queensland is demonstrating once again, routine racism and sexism pervades police forces, and managers, right up to commissioners, are too frightened of their officers, and their collective political power to do anything about it until it is in the public domain, and can be ascribed to a small minority rather than a system or culture problem. And there is the perennial problem: police look after their mates and will often do so well past the point of lying under oath, and even many who are essentially honest see much systemic police misbehaviour through the lens of their own grievances against an unsympathetic public.

Around the states and the NT, significant abuses and cases of outright corruption brought successions of searching external inquiries and reforms over the past 50 years. Only the AFP has escaped searching external scrutiny, conducted by independent investigators. The self-assurance of commissioners and police ministers that there has never been any need, and that all is well in its garden, beggars belief. The assiduous "service" given ministers - of whatever party currently in control - may be one explanation, along with the learned and studied AFP disinterest in any investigation that might embarrass the government. This intimacy with government has affected public confidence in the institution and may well have infected its integrity. That's not a handicap we need in the investigative team in the anti-corruption commission. We want the commission to be the best it can be, not merely an election-promise box the government can tick. Likewise we want a commission intent on rooting out corruption, not weakened until the point that the opposition can live with it. If there must be compromise it ought to be with those - such as the Greens and the teals - who were greater champions of a strong and effective body than Labor was itself.

The AFP, in short, is a part of the problem, and many of its problems are systemic. At this stage the AFP is more a fit subject for early investigation by the NACC, than for partnership with it in cleaning the stables of other agencies.