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CHAPTER 3
SHOULD THE COMMONWEALTH ADOPT INTEGRITY TESTING?
3.1
The committee has previously considered the merit of introducing integrity
testing in the course of its inquiry into the operation of the Law
Enforcement Integrity Commissioner Act 2006 (LEIC Act).[1]
3.2
In the interim report for that inquiry, tabled in February 2010, the
committee noted that a careful balance must be achieved between better enabling
law enforcement agencies to deter and detect corruption through the
introduction of an integrity testing program, and the need to remain alert to
the ethical challenges of entrapment. The committee further noted the costly
and time-consuming nature of integrity testing. These issues are further
considered in this chapter.
3.3
The committee supported, in principle, the introduction of an integrity
testing program within the Australian Federal Police (AFP). On the evidence
then before it, the committee considered that such a regime should be targeted
or intelligence-based and not random. Further, the committee considered it
critical that ACLEI be assigned responsibility for monitoring such a regime,
with a view to maintaining the balance of priorities outlined above.
3.4
The committee also noted that, in addition to the AFP, there may be merit
in introducing an integrity testing regime across a 'broader range of agencies
with law enforcement functions'. The committee observed that, on the surface,
it made sense to extend such a measure to other agencies with a similar
corruption risk profile to that of the AFP. On this basis the committee
suggested that this issue be further explored, including an expanded role for
ACLEI in such a regime.
3.5
Accordingly, the committee recommended that the Australian Commission
for Law Enforcement Integrity be assigned responsibility for the monitoring of
an integrity testing regime, should one be introduced, and that the LEIC Act be
amended to include this function accordingly.
3.6
In this chapter and chapter 4, the committee considers these and other
issues, including a possible model for integrity testing within certain
Commonwealth agencies.
Support for integrity testing
3.7
Of the eleven submissions received in the course of the inquiry, a
number supported the introduction of integrity testing within certain
Commonwealth law enforcement agencies, including ACLEI, the AFP and the Australian
Crime Commission (ACC).
3.8
In its evidence to the committee, ACLEI stated its support for the
introduction of an integrity testing capability within the LEIC Act,
submitting:
While there is no 'corruption crisis' in Commonwealth law
enforcement, the emergence of targeting of government officials by organised
crime groups in some jurisdictions means that integrity testing now warrants
close consideration by agencies that may be vulnerable to such attacks.[2]
3.9
Elaborating on this comment, Mr Philip Moss, Integrity Commissioner,
stated:
I have spoken with this committee in recent years and in my
annual reports about the aggressive tactics used by organised criminal groups
to achieve their aims. The risk of infiltration and corrupt compromise in
agencies engaged in the fight against organised crime continues to engage
ACLEI. I have spoken also about the problems of the conscious opponent and
the invisibility of corruption. These phenomena make it difficult to detect and
gather evidence about corrupt conduct in a law enforcement environment, and we
should not underestimate the challenge involved. Accordingly, I believe it
would be timely now to add integrity testing to the options available to combat
corruption. It will not be a panacea and it will not be the right method for
every agency or in every instance; however, for the right situations, it will
be useful to have the ability to conduct integrity testing.[3]
3.10
In particular, ACLEI sees value in integrity testing being used as an
investigation tool. ACLEI informed the committee that the method overcomes
evidence collection problems that can otherwise face anti-corruption
investigators, namely:
- the familiarity of a subject with sophisticated methods to
conceal his or her own subterfuge;
- conspiracy between individuals to obstruct investigations; and
- collecting direct, contemporary evidence about conduct that does
not rely on:
- inference;
- uncorroborated information (the 'disreputable witness' and
'self-interested co-conspirator' problems);
- information only about past events (the 'one step behind'
problem); or
- testimony of witnesses or whistle-blowers who would otherwise be
exposed and placed in jeopardy.[4]
3.11
The AFP recognised the deterrent effect of integrity testing, and was of
the view that the introduction of an integrity testing regime would further
strengthen the AFP’s toolkit in combating corruption. However, it noted that
integrity testing should not be pursued to the detriment of other capabilities
such as education and training, early detection, a strong leadership culture,
and effective guidance to assist AFP appointees to make ethical decisions.[5]
3.12
The ACC also supported targeted integrity testing of its officers on the
basis that it would further strengthen the ACC's existing integrity framework.
The ACC indicated its support for several models, including integrity testing
conducted by ACLEI, by itself (in consultation with ACLEI), jointly with ACLEI
or by another agency authorised by ACLEI.[6]
3.13
In addition, CrimTrac, noting the committee's recommendation in a
previous inquiry to include CrimTrac in a second-tier ACLEI jurisdiction,
informed the committee that it would have no objection to being subject to an
integrity testing regime.[7]
3.14
The Australian Federal Police Association (AFPA) and the Police
Federation of Australia (PFA), however, were generally opposed to the
introduction of integrity testing, particularly on a random basis, at the
Commonwealth level.[8]
AFPA opposed the introduction of integrity testing within the AFP for reasons
canvassed in the issues section below, while the PFA raised concerns about the potential
effects of a Commonwealth integrity testing regime on seconded state and
territory police officers.[9]
3.15
In addition to the views described above, a number of other
organisations provided evidence elaborating on various issues relating to
integrity testing. This evidence is presented below.
Issues raised
3.16
In evidence provided to the committee, a number of issues associated
with integrity testing were raised, including cost, impact on morale, legal
issues such as inducement, and the effectiveness of integrity testing as an
integrity measure.
Cost
3.17
ACLEI, the AFP, and the Attorney-General's Department (AGD) all noted
that integrity testing is a resource intensive exercise.[10]
Because integrity testing requires the creation of detailed, highly realistic
scenarios that are tailored to the circumstances of each particular case, preparing
a test can be a costly proposition. In addition, specialist teams may be
required to assist with the execution of a test, including undercover
operatives, often seconded from other agencies, and surveillance or
telecommunication intercept capabilities.
3.18
The AFP informed the committee that the costs for an agency conducting
an integrity testing regime would vary depending, for example, on whether the
regime was fully internal or fully outsourced. A fully internal, dedicated
integrity testing unit within the AFP was estimated to cost $8 million, while
other options included contracting another agency on a user-pays basis, or a
hybrid of the two models.[11]
3.19
The Western Australian Police, however, noted that their own integrity
testing program was no longer run by a stand alone unit, but was instead
conducted by a broader unit with covert operations specialisation. As Detective
Superintendent Tony Flack explained:
If I simply had officers sitting there trying to drum-up
integrity tests, I do not think I would be getting value for money. But inside
a covert services/covert investigations cell, where all the investigators are
trained in looking for integrity tests, there are opportunities to be very cost
effective in using existing investigation resources than trying to run
integrity tests.[12]
3.20
ACLEI emphasised its preferred approach to integrity testing was the
introduction of a 'low-level, low-cost' option. The Integrity Commissioner
explained:
[W]hat I would be hoping for if a decision was made to
proceed with integrity testing, would be a very low level, low-cost approach to
integrity testing, and it being added in that sense of another option rather
than the more expensive possibility of integrity testing units and all the
expense and issues that go with that.[13]
3.21
The committee notes that the cost of integrity testing is one reason why
many police forces choose to conduct targeted rather than random testing, as it
is considered that targeted tests provide greater value for money.
Negative effects on morale and capacity
to act.
3.22
The effect of integrity testing on the morale, and capacity to act, of
officers within an agency was raised as a concern, particularly in relation to
a random testing program.
3.23
In ACLEI's view, any approval of the notion of integrity testing would
need to balance the positive anti-corruption benefits against the possible
unintended negative effects, including erosion of:
- the trust-relationship between an employee and their employer;
and
- the preparedness of public officials to act with confidence,
especially in a law enforcement environment in which fast judgements are
required and officers have a large degree of discretion in the performance of
their duties.[14]
3.24
Similarly, AFPA expressed concern that integrity testing would have a
net negative effect as a result of reduced trust between officers and lower staff
morale. AFPA noted that this could undermine the operation of a professional
and ethical workplace, while impeding efficiency as police constantly 'look
over their shoulders'.[15]
Mr Jim Torr, AFPA, elaborated on this issue, observing:
Policing requires trust. The AFP has one of its core values
as trust. In the environment out there, the hostile, quick moving environment,
trust is everything. You do not really have a lot of time to second guess
everything that comes your way before you start making decisions. In an
intangible and philosophical sense: how do you reconcile an organisation and a
profession that runs on trust where you have established a pretty big structure
that says, 'We do not trust you and we are going to test you at every turn
because we do not trust you'? It is another side to the issue.[16]
3.25
The AFPA referred the committee to comments by the former AFP
Commissioner, Mr Mick Palmer AO APM, who argued that integrity testing would:
...incur the rancour and indignation of the rank and file and
it could be argued that the divisiveness and acute circumspection they create
militates against a unified agency and destroys positive as well as negative
aspects of the police subculture.[17]
3.26
Western Australia Police also provided comment on the issue of staff
morale, observing that day to day morale was not necessarily the same as agency
esprit de corp. As Detective Superintendent Flack remarked:
My view from 31 years experience is that police officers
would get over it if it were to become random. Yes, in the initial view they
would beat the drum and say, 'I don't like it; it's an infringement; you don't
trust us,' and the rest of it. But, at the end of the day, it will be judged on
whether you are maliciously using a random test or whether it is effectively
targeting, even on a random basis, those areas of highest risk.
It will certainly have a detrimental effect on the morale of
an office if you do one on an office and it comes up a negative—or a positive.
We find if there is a problem in there it will in the short term have an impact
on morale, but there is a difference between morale and esprit de corps. Morale
can change on a day-to-day basis, depending on whether you had an argument with
your partner when you left in the morning. Esprit de corps is that commitment
to the body, commitment to the profession, commitment to the organisation, and
I suspect that would not change whether you had random or targeted tests.[18]
3.27
The Ombudsman also noted the potential for integrity testing to be
accepted over time:
I would just go back to my point about the internal culture,
it might be that initially there would be difficulty in an industrial sense,
but based on the evidence as I understand it from overseas forces who do this,
eventually it is the workforce itself that agrees to these regimes because they
see it as a way of controlling those with a propensity to corruption and it
also enables them to have a higher degree of individual integrity. It is something
that then grows organically within the organisation rather than it being seen
as being imposed from without.[19]
3.28
The committee notes that the effect of any proposed integrity testing
program on the morale of an agency is an important consideration, however, the
committee also notes the corrosive impact upon an agency of corrupt conduct and
the need for organisations to have the appropriate tools to combat such
corruption.
Inducement
3.29
Several witnesses observed possible legal issues relating to integrity
testing, in the form of inducement. AGD used the example of provisions within
the controlled operations legislation, noting that integrity testing involves similar
considerations. Authority for a controlled operation cannot be granted if the
operation is likely to induce a person to commit an offence that they would not
otherwise have intended to commit.[20]
3.30
AGD further noted that if it is considered that an integrity test
induced an individual to commit an offence, the evidence may be excluded from
court. If the outcome of the test was used to inform disciplinary action or
termination of employment, procedural fairness issues would apply.[21]
3.31
AFP witnesses, appearing before the committee in 2009 explained that a
working group had been established to consider in depth the way in which an
integrity testing regime might work. One of the issues under consideration then
was entrapment. Commander Walters noted that:
One of the roles of the working group at the moment is to get
very clear definitional parameters around exactly what sort of integrity
testing the AFP would want to implement. That could be an incremental approach
over a period of time. We might start with some very focused integrity tests
and build on that over a period of time. Certainly the issue of entrapment is
something that has been worked into the development of the regime that has also
been looked at by the working group.[22]
3.32
Assistant Commissioner Paul Jevtovic assured the committee at that time
that:
Existing and prevailing legislation would continue in the
area of entrapment, particularly the robust entrapment legislation in our
controlled operations legislation, so we would see no weakening or diminishing
of that existing legislation and we would be working within it; that is for
sure.[23]
3.33
The committee explored inducement further and was advised that:
The term 'entrapment' is also linked to the term
'inducement', and that is the term more commonly used in our legal framework,
but the two are the same. It is when an inducement is inherent or when a fact
is inherent in the integrity test that leads a person who is the subject of the
test to make the wrong decision. The inherent principle of integrity testing is
that there be clear, equal opportunity for a person who is subject to the test
to pass the test or fail the test. An inducement would be where the factors
relating to how the test was developed and then applied would skew that need
for an equitable approach.[24]
3.34
ACLEI advised that inducement and entrapment have been previously
considered by the High Court:
Bunning v Cross is the leading case around admissibility of
evidence and the factors that are to be taken into account if evidence is
improperly obtained. Ridgeway was specifically on the issue of entrapment, and
that is where the High Court said that there is no defence of entrapment at law
in Australia, but under certain circumstances taking into account factors, it
may be appropriate for certain evidence not to be admissible.[25]
3.35
Noting that integrity testing has been used in states and territories,
the committee sought evidence on whether there had been any failed case because
of bad operational procedures on integrity testing. The NSW Police and WA
Police, as well as ACLEI, advised that that they were not aware of any case law
specifically on a failed integrity test in Australia.[26]
3.36
AGD confirmed that controlled operations legislation already contains
constraints relating to inducement and would enable some types of integrity
testing:
In those provisions, you cannot approve a controlled
operation if it would induce an individual to commit an offence they would not
otherwise have committed. That exclusion from controlled operations is
expressly directed at that situation, so you cannot offer someone who would
never have otherwise contemplated undertaking criminal activity an opportunity
that induces them to do something that they would not otherwise have done.
Otherwise officers will lose their immunity from criminal liability and civil
liability because the authorisation would be invalid.[27]
The department's view is that if you are going to conduct an
integrity test that involves the officers who are setting up the test engaging
in criminal activity or incurring civil liability, the controlled operations
regime is the appropriate way to do that. A lot of thought has been put into
the authorisation arrangements and thresholds and safeguards in that regime. We
think it would be more appropriate to consider whether some adjustments needed
to be made to that regime in those circumstances. Leaving $20 or a wallet on a
table does not require the use of a controlled operation, and does not require
legislation.[28]
3.37
The committee further considers the use of covert policing powers in its
consideration of a possible legislative framework for integrity testing in
chapter 4.
Potential for abuse
3.38
AFPA highlighted the risk of an integrity testing program being abused, citing
previous instances of police corruption in state jurisdictions where senior
officers in charge of internal security were implicated.[29]
Mr Torr suggested:
Let us suppose that a junior whistleblower was starting to
express concerns [about corrupt conduct at senior levels], what a good way to
sort him out and send him a few dirty emails, see what he does with them, 'You
have failed our internet usage policy, good bye.' Of course it is in the high
levels of all organisations that the risk is the greatest.[30]
3.39
In order to mitigate such risks, AFPA advised the committee that any
integrity testing program should be subject to strict accountability measures,
specifically, oversight by ACLEI and the Parliament.[31]
3.40
ACLEI similarly noted that it would be reasonable to expect that
accountability arrangements would be established to guard against misuse of
official powers, although it did not suggest a specific form of accountability.
The relationship between integrity
testing and other integrity measures
3.41
The committee considers it important to understand how the possible
introduction of integrity testing would work in conjunction with, or on top of,
existing integrity measures.
3.42
AFPA observed that, in the case of the AFP, a considerable number of
integrity measures are already in place, and it did not see why the addition of
integrity testing was justified. Mr Jim Torr elaborated on this point,
remarking:
We are also alert to the fact that every new idea or notion
in relation to scouring police for fault and searching for failure is heaped on
police in the first instance before anyone else. There are many other
professions which we would argue are just as accountable and just as subject to
compromise by corrupt conduct as police forces, and yet police in the first
instance always seem to attract these sorts of intrusions.
These are intrusions which come on top of many, many other
accountabilities that our members already face. We were also jointly
responsible for developing security in the AFP context: comprehensive security
clearance processes, which actually look at family members and friends, et
cetera; initial and regular financial disclosure of assets and debts; random
and targeted drug testing of which the AFPA was a joint partner in developing
the AFP program; critical incident drug and alcohol testing; loss of
superannuation for corruption offences; of course all the criminal sanctions;
the obligations to provide information under direction; and there are many
other aspects to the accountability we already provide.
Having said all that, we have not seen the argument put in
front of us that would now justify another intrusion into the normal process of
police business and police accountability.[32]
3.43
The Commonwealth Ombudsman noted that while integrity testing is
appealing in its simplicity, he remained unsure as to whether it is an
effective means to prevent corruption, preferring approaches aimed at developing
a culture of integrity. Specifically, the Ombudsman described integrity testing
as a means to catch 'bad apples', rather than helping to prevent corruption.
For this reason, the Ombudsman saw it as the wrong approach for a federal
anti-corruption agency.[33]
3.44
However, ACLEI argued that integrity testing was warranted as an
efficient investigation tool, justifying its introduction. As the Integrity
Commissioner explained:
...[I]n terms of efficiency, if you can cut through by the
use of one method and get to a result where otherwise you might take the long
way around using other methods, I think this is to be welcomed. The other point
I have just been reminded of is that sometimes it is not just a question of
detecting corrupt conduct; sometimes it is a question of disruption. You might
have an officer or a group of officers who are under suspicion and we just
cannot quite get the evidence that they are engaging in corrupt conduct or how
they are engaging in corrupt conduct. But integrity tests might reveal
something lesser, such as a sound reason for disciplinary procedure, and that
would certainly be applied. There is that consideration also in an integrity
testing regime.[34]
3.45
The Integrity Commissioner noted in evidence to the committee that there
is no crisis of confidence in federal public administration generally or in law
enforcement agencies. However, problems of the conscious opponent and the
invisibility of corruption:
...make it difficult to detect and gather evidence about
corrupt conduct in a law enforcement environment, and we should not
underestimate the challenge involved. Accordingly, I believe it would be timely
now to add integrity testing to the options available to combat corruption. It
will not be a panacea and it will not be the right method for every agency or
in every instance; however, for the right situations, it will be useful to have
the ability to conduct integrity testing.
It would be ill-advised to rely only on shared values and
trust, as important as those factors are. This principle reminds us that a
seemingly appropriate culture and a seemingly effective control environment
will not always mean that everyone will resist temptation or manipulation by
outside forces. It also reminds us that not all opportunities for corrupt
conduct can be easily removed or controlled. Accordingly, some checking is
required, and the form that this checking takes must be matched to the
challenge.
The integrity testing method offers an additional option for
skilled investigators to dismantle the levels of secrecy and deceptive
behaviour that characterise corrupt conduct. For these reasons, I see a place
for integrity testing. When used in the right circumstances, the method would
improve the efficiency of corruption investigations. [35]
3.46
ACLEI accordingly sees the introduction of integrity testing as a useful
adjunct to existing integrity measures. The Integrity Commissioner noted that
previous investigations could have benefited from the application of an
integrity test.[36]
3.47
The different components of corruption risk, including the means of
disrupting each component, were depicted in a diagram in ACLEI's 2010-11 Annual
Report. This diagram, reproduced at Appendix 3, indicates that integrity
testing is particularly useful in disrupting corruption risk by increasing the
possibility of detection and changing the risk calculation for those who might
undertake corrupt actions.
Committee view
3.48
The committee notes the importance of considering integrity testing in
the context of the broader integrity platform adopted by an agency. Integrity
testing is just one of many measures that may be in place and it is important
to assess the right mix of measures in light of limited resources.
3.49
The committee is mindful of the above issues, and notes that any
integrity testing regime will have to carefully designed. On balance, however,
the committee reiterates its previously stated in-principle support for
integrity testing, and further recommends that an integrity testing regime be
introduced for certain Commonwealth law enforcement agencies. The committee
discusses how such a scheme might look in chapter 4.
Recommendation 1
3.50 The committee recommends that an integrity testing program be introduced
for certain Commonwealth law enforcement agencies.
Recommendation 2
3.51 The committee has received evidence about types of integrity testing and
recommends that targeted integrity testing be the preferred method.
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