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ROYAL COMMISSION (POLICE) BILL 2002
Introduction and First Reading

Bill introduced, on motion by Mr McGinty (Attorney General), and read a first time.

Second Reading

MR McGINTY (Fremantle - Attorney General) [12.04 pm]: I move -

That the Bill be now read a second time.

The Labor Government is committed to addressing allegations of police corruption and restoring public confidence in Western Australia's Police Service. For these purposes, on 12 December 2001, a commission was granted to the Hon Mr Geoffrey Kennedy, AO QC, under the Royal Commissions Act 1968 establishing the Royal Commission Into Whether There Has Been Any Corrupt or Criminal Conduct by Western Australian Police Officers.
In March 2002 the commissioner wrote to me concerning the adequacy of the powers available to the commission under the Royal Commissions Act for the purposes of the inquiry. The commissioner expressed the view that these powers were not sufficient to enable the commission properly to fulfil its functions. In particular, in order to ensure that it would not be impeded in its work, he said that the commission needed access to all the modern tools and techniques for the investigation of criminal and corrupt conduct including, for example, the use of surveillance devices and the mounting of undercover operations. Access to such tools and techniques is not available under the Royal Commissions Act.

In recent years, agencies have been established in other Australian jurisdictions to inquire into complaints of criminal and corrupt conduct of public officers. Experience has demonstrated that such forms of behaviour can be deeply entrenched and systemic. Corruption often cannot be sheeted home to a few rotten apples but, rather, may be symptomatic of pervasive and deep-seated problems in an organisation. For this reason, it has not been uncommon for extraordinary investigative powers to be granted to agencies charged with inquiring into such behaviour. For example, special additional powers were granted to the Wood Royal Commission into the New South Wales Police Service, which reported in 1997, the earlier Fitzgerald inquiry in Queensland and the permanent Police Integrity Commission and Independent Commission against Corruption in New South Wales.

The additional powers sought by the commissioner in his letter are similar to those which have been given to these other bodies. They include powers for the commissioner -

to issue notices requiring the production of statements of information or documents or other things specified in the notice. The Royal Commissions Act only allows a commission to issue a summons for the production of such material, whereas the proposed procedure would obviate the need for the commission to convene a formal hearing just for the purpose of production of this information;
to approve the acquisition and use of assumed identities by officers of the commission for use in covert investigations and, at the same time, to protect officers acting under assumed identities from criminal and civil liability; and

to authorise persons acting under the authority of the commission to participate in undercover operations and integrity testing programs for the purpose of detecting corrupt or criminal conduct, and to provide necessary protection for such persons; and

to make use of surveillance devices and telephone intercepts.

Other miscellaneous powers sought by the commissioner include powers -

to authorise entry to, and inspection of, public premises and inspection and copying of any documents in those premises;
to issue a warrant for the arrest and holding of witnesses;

These additional powers are without doubt extensive and in some instances extraordinary. However, the nature of this royal commission is also out of the ordinary, and it requires the application of extraordinary measures. The Government agrees with the commissioner that such wide-ranging powers are necessary for the commission properly to carry out its task.
It is appropriate, in view of the nature of the powers contained, that I should spell out for the benefit of honourable members the major provisions of the Bill. Part 1 is preliminary. Part 2 prescribes the powers of the commission to obtain information, documents and other things. These include powers to issue a notice requiring a public authority or public officer to produce a statement of information, issue a notice to a person requiring that person to attend before the commission and produce documents and other things, and enter and inspect public premises of a public authority or public officer and inspect and take copies of any documents found on those premises. To protect witnesses, the Bill provides that statements of information produced in compliance with a notice under this part are not admissible in evidence against the person in civil or criminal proceedings. Legal professional privilege also applies. However, such material may be used in contempt proceedings against the witness, in proceedings for an offence under the Act or the Royal Commissions Act 1968 or in disciplinary proceedings.

Part 3 confers powers on the commissioner to issue a warrant for the apprehension of a person whose evidence is desired by the commission, but only if the commissioner is satisfied that the person will not attend before the commission to give evidence without being compelled to do so or is about to leave the State and the person's evidence will not be obtained if the person departs. The commissioner is also empowered to apply conditions to the release of a witness, if necessary, to ensure the attendance of the person as a witness. To protect against arbitrary use of this power, a witness who is detained by the commission under this part or who has been released subject to conditions may apply to the Supreme Court for a review of the decision or the conditions.

Provisions designed to ensure appropriate secrecy, disclosure and admissibility of evidence are addressed in part 4. These include a power for the commissioner to prevent or restrict the publication or disclosure of any evidence or information sought by or given to the commission. Included is information that could lead to the identification or location of a witness or the fact that a person has given or may give evidence. Although such provisions are extraordinary, they are nevertheless necessary for the protection of witnesses and their families and to provide assurance to witnesses who might otherwise be extremely reluctant to testify.

In the interests of facilitating the investigative processes of the commission, the commissioner and the officers of the commission are not required to comply with provisions of the Anti-Corruption Commission Act 1988, which might otherwise restrict the provision, communication or production of evidence, information or documents for the purposes of the commission. The Ombudsman may also give evidence and produce documents to the commission that were obtained in the course of or for the purposes of the Parliamentary Commissioner Act 1971. In addition, information or records obtained through the use of an authorised telephone intercept under the Telecommunications (Interception) Western Australia Act 1996 may lawfully be provided to the commission.

Investigation by the commission of allegations or complaints of corrupt or criminal conduct by present or former police officers is addressed in part 5. The commissioner may, by giving notice to the Commissioner of Police, take over the investigation of a complaint from the Commissioner of Police and arrange for the matter to be investigated by a special constable who is an officer of the commission. Alternatively, the investigation may be conducted in accordance with an arrangement between the commission and the Commissioner of Police. In a similar way, the commissioner may also take over responsibility for the investigation of a complaint from the Ombudsman. The Commissioner of Police or the Ombudsman, as the case may be, may resume the investigation upon notification by the commissioner, or after the end of the commission.

Part 6 confers on the commissioner the power to approve the acquisition and use of an assumed identity by an officer of the commission. An assumed identity approval authorises the officer to whom it applies to acquire and use the assumed identity or identities specified in the approval, and also authorises the officer or the commissioner to make false representations in connection with the false identity or identities, and to obtain evidence from other agencies and organisations in support of the new identity or identities. Officers authorised to assume new identities are protected from criminal and civil liability. For reasons of their safety and the integrity of the operations in which they are engaged, the assumed identities of officers must not be disclosed in legal proceedings unless the court considers that the interests of justice require it. As a means of ensuring proper accountability, the Bill provides that the commissioner may provide a report to the Attorney General on approvals of assumed identity. On receipt of such a report, the Attorney General must table the report before each House of Parliament as soon as practicable.
The powers of the commissioner in respect of the authorisation of "controlled operations" and "integrity of testing programs" are contained in part 7 and are strictly regulated. Each authorisation must specify the officer of the

Provisions to enable the commission to apply for a warrant for the use of a surveillance device are contained in part 8. Currently the Anti-Corruption Commission may apply to a court for the use of a surveillance device under the Surveillance Devices Act 1998. The Bill amends the Surveillance Devices Act 1998 so that the royal commission may apply to use a surveillance device in the same way. The Bill also provides that, for the purposes of the royal commission, references in the Surveillance Devices Act 1998 to an offence includes a reference to an act of corrupt conduct, and a reference in the Act to a suspected criminal offence or a suspected offence includes a reference to suspected corrupt conduct. The commission may provide a report to the Attorney General relating to applications for surveillance warrants, applications for emergency authorisations, and other matters relating to the use of surveillance devices, and the Attorney General must table any such report before each House of Parliament as soon as practicable. These provisions conclude upon completion of the royal commission.

Part 9 amends the Telecommunications (Interception) Western Australia Act 1996 to make the commission an "eligible authority" of the State which will facilitate its access to relevant telecommunications obtained by agencies under the commonwealth Telecommunications (Interception) Act 1979. The commission will then be eligible to make use of telephone intercepts under the latter Act. The importance of having access to such intercepts was stressed in the report of the Wood royal commission.

Before concluding, I will summarise some of the other, less contentious provisions of the Bill. These include -

an amendment to the Prisons Act 1981 to enable an order to be issued directing that a prisoner be brought to a place for the purposes of a royal commission;
procedures for the Supreme Court to deal with allegations of contempt of the commission and the defences available against such allegations. These include a defence of "reasonable excuse", but the Bill provides that such a defence does not include that compliance with the commission's notice might incriminate or tend to incriminate the person or render the person liable to a penalty, or that production of the document or other thing would be in breach of a non-disclosure obligation of the person;

creation of an offence of "victimisation" punishable by imprisonment for five years and a fine of $100 000 aimed at deterring any person from attempting to subvert the investigative work of the commission by threatening, intimidating, harassing or otherwise interfering with a person assisting the commission or a witness;

provisions intended to ensure that information gained for the purposes of the commission remains secret and cannot be compelled to be produced or divulged in any court except for the purposes of prosecution or disciplinary measures instituted as a result of the commission's inquiry;

personal protection of the commissioner and any person acting under the direction of the commission from criminal or civil liability;

provisions providing for delegation of certain of the commissioner's functions to senior counsel assisting the commission if the commissioner is ill or absent from Perth or the State;

a declaration to make clear that matter created or maintained for the purposes of part 6 or part 7 of this Act is exempt matter for the purposes of the Freedom of Information Act; and

for the making of regulations.

In summary, this Bill has been prepared in response to the recent request of the Honourable Mr Justice Geoffrey Kennedy, AO, QC for additional powers to enable him properly to conduct the Royal Commission Into Whether There Has Been Any Corrupt or Criminal Conduct by Western Australian Police Officers. The powers contained in the Bill are extraordinary and extensive, but they are similar to those that have been given to similar inquiries in other Australian jurisdictions such as the Fitzgerald inquiry in Queensland and the Wood royal commission into the New South Wales Police Force. The Government agrees with the commissioner that these powers are necessary, given the extremely difficult and complex task facing the commission. As well as providing the additional powers to the commission, the Bill affords significant protection of witnesses from both intimidation and arbitrary exercise of the commission's powers. As an added protection, the life of the extraordinary powers of the commission is limited to the duration of the commission. I commend the Bill to the House.
Debate adjourned, on motion by Mr Johnson.