The secret police

By: Tony Koch

Queensland will not be free of police impropriety until Anna Bligh takes a stand, writes Tony Koch

ASTOUNDING revelations this week by Queensland's Crime and Misconduct Commission that 25 police officers were involved in illegal and improper conduct with prisoners who had conned them into believing they could help with investigations lay bare the assertion that police can effectively investigate complaints against their own.
The CMC report detailed how brutal rapist and double murderer Lee Owen Henderson duped police with his lies so he could secure time out of prison that included conjugal contact with his wife.
His ``special treatment'' involved unsupervised use of a telephone in prison. The CMC found he organised a drug heist on the phone from maximum security.
The disclosures of the CMC investigation into Operation Capri are the latest in a worrying series of serious police misconduct, much of which has been passed off as deserving only a warning, and in many cases not even that.
In November last year, The Australian was forced to engage legal representation to apply in the Brisbane Children's Court for the right to attend a case that involved a charge against a 16-year-old girl who was tasered in Brisbane. The police prosecutor objected to The Australian's journalist attending on the basis that it ``was not in the public interest''. The magistrate initially agreed but then allowed the newspaper's attendance.
The court banned publication of the names of the police officer involved and witnesses and the charge of obstructing police was dismissed. No action was taken against the officer.
The inquiry by police into the actions of colleagues who investigated the November 2004 death of Mulrunji Doomadgee in the Palm Island watchhouse still has not been completed.
The findings in the latest CMC report have attracted calls by legal representatives and civil liberties lawyer Terry O'Gorman for the reinstatement of a dedicated investigative team within the CMC to handle all complaints. At present complaints come to the CMC, but if it is of the opinion that they can be handled by the ``relevant agency'' -- the government department involved -- they are handed on.
The system does not work. It was set up to fail. That is a serious allegation, but history is undeniable. The Fitzgerald inquiry was established in 1987 following media reports that police were involved in prostitution rackets and protecting illegal establishments. Corruption commissioner Tony Fitzgerald spent two years on the inquiry and his findings are the reform bible inQueensland.
Fitzgerald's inquiry resulted in the jailing of dozens of police, including police commissioner Terry Lewis, five former government ministers and civilians found to have been involved in serious crime.
Fitzgerald wrote that the police service was found to be ``debilitated by misconduct, inefficiency, incompetence and deficient leadership, with contempt for the criminal justice system, disdain for the law and rejection of its application to police, disregard for the truth and abuse of authority''.
Fitzgerald recommended the creation of apermanent body, the Criminal Justice Commission, to act as a continuing commission of inquiry to oversee his recommended reforms and provide a safeguard against the return of corruption. The CJC's brief was to investigate corruption in the three main public sector risk areas: politicians, police and public servants. It did that by receiving and investigating complaints, instituting proactive intelligence-driven investigations of official misconduct including corruption, and by providing research and corruption prevention reports and recommendations.
But it soon fell foul of its political masters. Soon after it was established in 1990, the CJC investigated travel claims made by politicians and revealed a scandal that forced the resignation of several ministers of the brand-new Labor government headed by former civil liberties lawyer Wayne Goss.
Several Nationals and Liberal politicians were also found to have rorted their travel entitlements, and were publicly embarrassed by the findings.
That was the day the CJC attracted sworn enemies on all sides of politics, because it had the temerity to bite the hand that fed it. For the next decade the CJC, headed by a variety of eminent lawyers, was subjected to vilification and accusation, and a constant erosion of its powers. Most of the bitterness came from the Labor side because of the travel rorts findings, but the Nationals had an abiding hatred of the CJC. That came from their MPs who were caught up in the travel rorts but, more significantly, they also saw the CJC as the ``son of Fitzgerald'', and it was Fitzgerald's inquiry that effectively ended the long line of National Party governments.
The resentment harboured by aggrieved politicians paled in comparison with that of the insipid Queensland Police Union, which was frustrated by the CJC doingits job and continually picking off corrupt cops. Then came the emasculation that the detractors demanded. In January 2002 under premier Peter Beattie, the CJC was amalgamated with the Crime Commission to become the Crime and Misconduct Commission. In introducing the enabling legislation, Beattie said: ``One of the most significant achievements of this bill is to move the misconduct functions of the CJC to a new level. The commission's responsibilities for investigating and dealing with official misconduct are preserved not only within the police service but across all units of public administration. In recognition of reform within the police service since the Fitzgerald inquiry, the bill returns responsibility to police for investigating and dealing with police misconduct.''
Beattie's Crime and Misconduct Act 2001 required that the CMC take complaints and then hand them over to the relevant department to be dealt with if they were not considered ``serious''. The CMC had the leading role in ``building the capacity of agencies to prevent and deal with cases of misconduct effectively and appropriately''. It also stated that the CMC had an overriding responsibility to promote public confidence in the integrity of agencies (departments) in the way misconduct was handled. So, in order to validly investigate the complaint itself rather than return it to the relevant unit of public administation for investigation, the CMC was required to jump each of those hurdles.
The aggressive fight against corruption and official misconduct previously conducted by the CJC was replaced by a benign regime of ``capacity building'' within departments and public sector organisations.
Any thinking person can see how a system in which in-house investigators report to senior managers, some of whom could perceive that theircareer interests may not be well served by rigorous investigation resulting in adverse findings about matters occurring on their watch, may compromise investigations. The legislation clearly denies the need for the specialist powers and experience possessed by an expert anti-corruption body.
It is common sense that most forms of corruption and misconduct are clandestine activities that will only be uncovered and successfully investigated through sophisticated investigative techniques and compulsory powers. Why else did Fitzgerald recommend the establishment of the CJC as a specialist and expert agency?
But the Beattie government considered it appropriate that the first line of response to corruption be a cadre of superficially trained departmental investigators with no compulsory powers or access to specialist assistance such as financial or intelligence analysts.
What is now clear is that stripping the watchdog organisation -- under whichever name it operates -- of the exclusive powers to investigate all complaints is not working.
As retired Supreme Court judge Bill Carter tells The Australian: ``Police corruption will not be arrested until all such misconduct allegations are handled by the CMC, not the ethical standards branch of the police service.''
It is clear that unless the government of Anna Bligh has the fortitude to overturn the failed experiment launched by her predecessor, the people of Queensland can have little real confidence that sincere efforts are being made to control and root out corruption in the state's public sector.