The Federal Police Commissioner, Mick Keelty, has made a controversial speech in which he argues for a gag on media coverage of terrorism arrests.
The speech was delivered to the Sydney Institute.
This is the text of Commissioner Mick Keelty’s speech to the Sydney Institute.
“Terrorism: Policing’s New Paradigm”
(Commissioner Keelty introduced by Mr Gerard Henderson, Executive Director of The Sydney Institute)
Thank you very much Gerard, and thank you for the opportunity to come and address you.
At the outset I’d like to begin by acknowledging the traditional owners of this land on which we’re having this address and also acknowledge their elders and their connection with this land.
I want to talk today about policing and terrorism. It’s a new paradigm for us, particularly here in Australia, because we are yet to have a terrorist attack on our soil. Talking more broadly about law enforcement, it’s occurring in a constantly changing environment. It was not that long ago that police were primarily focused on the investigation of crimes after they were committed. Modern policing today is more focused on crime prevention. As it should be.
And I dare express that there are high levels of expectation on our police and, rightly so, to focus on the prevention of crime rather than to respond to crime after it’s been committed. It’s a reasonable expectation to hold.
To be successful in this endeavour, it is important that we minimise distractions and focus on the job at hand. This is not always an easy task, but as an organisation the AFP remains open to change; open to new ways of doing things; and open to opportunities to learn. We do not know for certain what the future holds, but it is vital that we attempt to plan rather than being overwhelmed by it.
In fact, in November last year we hosted the International Policing Toward 2020 conference in Canberra. That conference brought together international and domestic delegates from law enforcement, government, business, academia and the community to discuss what it might bring for law enforcement. We analysed how that might affect global societies seeking to maintain law and order, prevent and deter crime, and enforce laws in a new world order.
At the conference we heard from a diverse field of experts, such as futurists, political scientists, environmentalists, social researchers, academics, international experts, and demographers.
We discussed the future direction of law enforcement and it’s acutely clear to me that the demands of the next decade will be significantly different from the demands of the last decade.
2020 is only 12 years away – 12 years that I am sure will pass with the blink of an eye – and that demands of us that we position ourselves to provide government with sound advice as to the likely policy and crime challenges as we understand them to be. For us now to keep responding after issues emerge with governments left ‘on the back-foot’ as it were.
For example, at the AFP we created the International Deployment Group. It was a proactive step to overcome the impact upon, not only the AFP, but also upon the State and Territory Police when they are required to provide police for ad hoc international interventions such as in East Timor, The Sudan, Afghanistan and The Solomon Islands.
Today, we are still the only police organisation in the world to have created such a standing capacity to respond at the request of our government to such interventions.
However, while it is incumbent upon us to think and act in this way, we need to remember that criminals will never cease devoting time and effort to reviewing the methods they use to commit crime. Criminals will continue to look for new markets where they can commit crime and they will continue to study our methodologies as they are, quite properly, scrutinised by the courts.
The International Policing Toward 2020 conference provided a valuable forum for us to analyse our own strengths and weaknesses and, just as importantly, to listen to other perspectives about the future of law enforcement.
The opening words of Abraham Lincoln’s famous ‘House Divided’ speech of 1858 encapsulates this sentiment: “If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it.”1
Last year, some commentators used the media to criticise the AFP’s perceived lack of street smarts when it comes to interviewing terrorist suspects. It was suggested we’ve all been too busy in the AFP earning degrees to have gained the street smarts appropriate to be able to have the hands on experience to conduct such investigations.
I make no apology for the recruitment of, and further development of, our police.
Education is the cornerstone of a robust, modern and adaptable police force. We take every opportunity in the AFP to encourage our members to further their own education – whether it be for personal development and achievement or whether it be for career development.
It is sometimes suggested that in the AFP all we do is drug, tax and fraud investigations. If that were true I might have a few less grey hairs emerging, but those sorts of comments really reveal a considerable lack of insight and knowledge about the roles, functions and responsibilities of the AFP.
The AFP currently has more than 6,500 members who work in a diverse array of fields. Combined with our homeland duties, we have officers working overseas in liaison, peacekeeping and capacity-building roles.
In fact, peacekeeping and regional assistance missions have evolved into one of our core business areas, and they remain an important way of strengthening links with the international law enforcement community.
An integral aspect and long-term benefit of peacekeeping activities is that by helping our neighbours in the region to stabilise and establish law and order in their own region, those police forces will become much stronger partners in preserving the peace, stability and good government of the region. This in turn, should improve the environment for other whole-of-government agencies, such as Health and Education, to provide their expertise and assistance.
Whilst the AFP does undertake drug, tax and fraud investigations – and, I might add, with some degree of success – we also police Australia’s major airports; we investigate high-tech crimes through the Australian High Tech Crime Centre; we provide protective security services to the Commonwealth, including Commonwealth assets, critical infrastructure, diplomatic missions and high office holders; we investigate transnational crimes like narcotics and people trafficking, we fight crime offshore through the AFP’s International Network; and we provide a community policing service to the people of the Australian Capital Territory.
The AFP has earned a strong reputation for innovation and excellence, traversing new terrain in countering crime growth areas such as high-tech and transnational crime. In fact, our experience and expertise in areas such as forensics and technical investigations are on demand throughout the world.
The demand for our services was a direct result to responses to natural disasters such as the Indian Ocean tsunami in 2003 and the terrorist bombings in Indonesia. But, interestingly enough, it’s our counter terrorism role at home that has caused the most controversy.
There has been some debate recently about the tension, whether real or perceived, between the right to silence and a fair trial and the right of the community to access information.
In a liberal democracy like Australia’s, that tension is not resolved by denying one or the other of these rights. Instead, we resolve it by delaying the enjoyment of our right to free expression until after a person who has been charged with a crime has fully exercised the right to a fair trial and the presumption of innocence has run its appropriate course.
In the United Kingdom, to provide a contrast with Australia, contempt of court laws prevent journalists from reporting proceedings in open court. In fact, even reporting information that has previously been in the public domain might also not be exempt from contempt of court laws. Although in the UK there is debate around when exactly proceedings become active, it is understood to be at the time a person is arrested; a warrant is issued for the arrest of a person or a person is charged with a crime. This media blackout remains in place until after the case is disposed of, abandoned, discontinued or withdrawn.
I am not saying that correct processes and procedures should be cast aside, nor should public institutions be immune from public accountability in the discharge of their public service, but I am saying that a public discussion about them should be delayed, in deference to judicial process. Not subjugated, not quashed, not silenced; just delayed, until the full gamut of judicial process has been exhausted.
If charges are laid, the right of the alleged offender to the presumption of innocence should take precedence over the public interest in knowing how the investigation was conducted and a person’s right to freely discuss elements of the crime and its investigation. Information about the investigation and wider discussion about elements of the crime become available as part of the open court processes or after the legal process has been completely exhausted.
Before I am accused of being a hypocrite, let me point out that in Operation Pendennis – where we’ve charged a number of people in Victoria and NSW with terrorism offences – we took the time to distance ourselves from the media attention and instead, pointed out that unless handled sensitively, we could damage our relationships with the community.
I understand that it can be difficult to wait for the chance to freely express ourselves. But I do believe to best serve the public interest, and to attain the full enjoyment of all our rights, we must sometimes delay that expression.
It’s a tough choice and I understand that. But ask yourself this: if you were charged with a crime, wouldn’t you want to exercise your right to the presumption of innocence? Wouldn’t you expect to receive a fair trial? Would you want objective, untainted and dispassionate arbiters of your guilt or innocence in your jury of peers? I think this is a right each and every one of us would demand under such circumstances.
One of the biggest challenges we face is the acute need to manage risk. In policing, in the AFP and also in the state and territory police that work with us on terrorism matters, we must balance the needs of preventing an incident from occurring against the need to have gathered as much evidence as possible to ensure successful prosecution.
As a result, we intervene in a terrorist matter earlier than we normally would in other criminal investigations. This sometimes means the subsequent prosecutions can be difficult and protracted because we are dealing with the elements of conspiracy, which often relies on circumstantial evidence.
I should add, terrorism is not the only crime in which we intervene prematurely to prevent people from becoming victims. For example, in child sex and sex slavery matters we also give primacy to the welfare of the victim over a successful prosecution. But, where we are publicly accused of a wrong doing or perceived inefficiency, it is appropriate to correct the record in order to maintain the confidence of the community and the Government.
There has been a disturbing trend developing where we have to apportion blame to somebody when things seemingly don’t go the way some commentators think they ought to go.
I would argue that the AFP is able to move with the times because of the culture of our people and the calibre of our people. Over the years, each new generation of AFP members has demonstrated a strong commitment to the organisation’s crime-fighting objectives and an ability to adapt to changing needs. In fact, it is our strength.
I’d also argue that the best person to interview a terrorist suspect is someone with a combination of skills – someone with street smarts, but also a formal education and appropriate experience.
As I’ve said, counter terrorism investigations are complex. They require multi-faceted, multi-jurisdictional, multi-agency approaches. These are terms that, almost too easily, roll off the top of the tongue. It takes time and effort to balance everyone’s expectations, whether they be another government, another agency or the community.
I’ll give you a timely example of what I mean. At the AFP we are working hard to improve our members’ understanding of, and interaction with, the Muslim community. We run Islamic awareness courses across Australia which cover diverse topics, such as the history of Islam, cultural sensitivities and radicalisation influences.
As well, the course also includes visits to local mosques and meetings with members of the Muslim community. In fact, I regularly meet with members of the Muslim community in every State of Australia and I come here to Sydney to speak on Muslim radio programs and talkback.
Australia is at a crossroads right now. One of the tragedies of our modern world is that some members of our community regard each other with heightened suspicion. Some young Muslims have felt marginalised from the wider community.
We have a choice: we can marginalise the Muslim community by making adverse public comments – and I’m obviously not talking about the radicals here – or we can make a concerted effort to work together.
There is no doubting that world events can challenge our ability to work together in a very fundamental way, but despite that, it is important that we come together to help strengthen relations between Muslims and non-Muslims.
In the AFP, we have formed the Islamic Liaison Team. It’s an initiative that hosts events with the local Muslim communities in an effort to reduce the mistrust and misconceptions between the AFP and Muslims.
In fact, the AFP, during the recent fasting month of Ramadan, hosted an Iftar – which is the breaking of the fast – in Melbourne, which was well attended by more than 300 people from the Muslim community and youth groups.
Feelings of social isolation and difficulties integrating with the community can contribute to making individuals susceptible to radicalisation. The Islamic Liaison Team is working hard to improve social cohesion with the Australian community. We are not alone in this endeavour; other Australian police organisations are putting significant effort into this type of program.
We are particularly keen to see the AFP expand our multicultural activities through recruitment strategies and increase the number of Middle Easterners in the AFP. This would not only reflect the broader Australian community but necessarily break down existing communication barriers.
But it does not stop here. To be a successful police force, our police force must be representative of the community it serves and I am the first to admit that we in the AFP have struggled in the area of Indigenous recruitment and retention, but we still continue to work hard to overcome that.
I am confident that after decades of serving offshore, whether as liaison officers in any of the 30 countries in which we serve, or through that International Deployment Group I mentioned earlier, we have created in the AFP a critical mass of foreign speaking and culturally experienced police.
Despite our best efforts, I long ago came to accept that some people will criticise you, no matter what you do and no matter how you do it.
In fact, The Sydney Institute’s last guest of 2007, Reserve Bank Governor Glenn Stevens, lamented during his entertaining address that some media accounts of his public statements were not always in accord with his spoken words and that some journalists have perfected the art of “reading between the lines”.
I sympathise with the Governor.
In fact, I was fortunate enough to have lunch with the Board after its last meeting last year.
For most people, their sole source of knowledge regarding the AFP’s counter terrorism investigations is the mass media. As such, it would be perfectly understandable if they – mistakenly – held the belief that the AFP has failed the community.
These are the facts. Thirty people have been charged with terrorism-related offences in Australia. So far, two people have been convicted and sentenced. Next month, the trials of 22 people charged with a range of terrorism offences – including directing the activities of a terrorist organisation, recruiting for a terrorist organisation, providing funds or support to a terrorist organisation and doing an act in preparation for a terrorist attack – will commence in Sydney and Melbourne.
I am not going to comment further on those cases, because I do not want to prejudice in any way those defendants’ rights to a fair trial. Australians will be able to learn more about the details of the case as the evidence is tested, which is the most appropriate way to find out.
The statistics on terrorism arrests do not include overseas successes in which the AFP participated in an integral way, and these include arrest of people in Indonesia and the Philippines.
Last October I delivered the inaugural Ray Whitrod Oration in Adelaide and in my speech I mentioned a number of potential security issues being studied by the AFP as part of our ongoing process of planning for the future. One of the issues I raised was climate change and how it could potentially pose the greatest threat to border security we have ever seen, if – and I repeat, if – some of the predicted impacts of climate change were to eventuate.
But, if some of the media stories following my speech were to be believed, you could be forgiven for thinking I had predicted some apocalyptic annihilation of humankind. As I stated earlier, despite the criticisms of the media I still think it is important to think and plan for the future.
Climate change, like many other potential issues to threaten our security, is something I believe the Australian community expects the AFP to look at.
The reporting on terrorism matters has produced an interesting mix with police roundspersons reporting on political events and political reporters reporting on police methodology which hitherto has not been their area of interest.
The mass media has a legitimate and valuable role to perform in Australia – that of informing the public. Routine matters are being misrepresented such as the difference between a bail application, a committal hearing and a trial. There is also a significant difference between being found ‘not guilty’ and an application for a ‘Nolle Prosequi’.
This is not to mention the plethora of opinion writing where opinion writers’ knowledge of the subject matter is restricted to the new-found position of reporting from behind the safety fence of responsibility. Unfortunately, these opinion writers write as if they are still within the inner sanctum and understood all the details.
I am reminded here of John Doyle’s Andrew Olle2 media address in 2005 where he said, and I paraphrase, “Suddenly the world is a wash with opinion … any half-baked idiot who can string a few sentences together is given a go, particularly if the opinion is inflammatory or some how ratchets up the climate of fear or loathing – simply and obviously because it sells more newspapers”.
In some ways it is understandable. There has been a discernable shift towards campaigns being run in the media to engender support for accused persons or persons under investigation. I’m not only talking about terrorism matters here. There have been some notable cases in the past five years and, as one editor of a recently demised publication unashamedly put it to me – if he sells more magazines by having on the front page an accused person, what’s my problem with the story being run in the media? What’s my problem with the defence being run in the media?
We’ve actually seen now Freedom of Information material being used to advance cases in the court of public opinion. If this is what the community wants and expects of its criminal justice system, then we should simply move on. But I wonder whether it has been a conscious decision by the wider community to abandon our criminal justice system in this way.
Police forces introduced video and audio records of interviews with suspects to ensure greater transparency and accountability. Consequently there has been a significant decline, almost elimination, of allegations of verballing. There has also been a great reduction in the length of trials.
But we are now witnessing these records of interviews being given to the media to add weight to the public campaigns being run. Whatever you think of this practice it defeats the purpose for which video and audio records of interview where introduced and it begs the question as to who decides what should or should not be leaked to the media and where does that and to whom does that decision become accountable?
When a record of interview is given to the media with accompanying commentary, we run the risk of jeopardising the accused’s ability to receive a fair trial when the matter reaches court. It is also only one part of a greater body of evidence and, when considered in isolation, it may serve as a public relations tool in the short term, but it has the potential to severely harm a case in the longer term.
Call me old-fashioned but I don’t believe anyone accused of, or charged with, a crime can receive a fair trial if the matter is tested first in the court of public opinion.
The element of secrecy is characteristic of the environment in which terrorism investigations are conducted. In almost every terrorism investigation there will be international linkages or involvement – whether direct or indirect. It’s simply the nature of that crime.
Often, some of the material we access during the course of an investigation belongs to foreign countries and it is made available to us with strict caveats preventing its public release in Australia.
We can sometimes forget that the whole of the Australian community derives a benefit, not only from close international police cooperation, but also cooperation between intelligence agencies. There are often dividends to these relationships that are overlooked in the commentaries.
Ironically, many of the issues I have raised are only available for public debate because of the transparency and accountability that exists in our Australian community. It does not exist everywhere in the world and this is the real conundrum of this environment, balancing rights and powers.
It will always be a challenge to get the equilibrium right, but let’s not forget that it is these freedoms that we want to enjoy and protect for the whole community.
In times where I find myself not in complete agreement with the conclusions reached by some members of the Press, I try to remember the words of Ralph Waldo Emerson, who said: “Let me never fall into the vulgar mistake of dreaming that I am persecuted whenever I am contradicted.”
The now familiar chorus of calling for people to be sacked every time there is a difference of view has two long-term impacts. The first is that good people who would otherwise do an outstanding job for the community may be deterred from taking up positions of responsibility, and the second is that we risk permanent damage to public institutions where we actually need strong public confidence in those institutions.
Unfortunately, we are sometimes forced into the public domain at times we would prefer not to be, such as during an ongoing investigation where false or misleading information finds its way into the media.
On the one hand, we do not comment during ongoing investigations to avoid jeapordising the integrity of the investigation but, on the other hand, by not responding, we risk the erosion of confidence from the community in governments, police and intelligence agencies. There are significant consequences from such erosions that are not always apparent.
This erosion of trust is exacerbated where there are existing tensions in the community.
People who oppose the government’s terrorism policies can be used as a resource to erode confidence in the government, the police and intelligence agencies. In fact, I can tell you with some degree of confidence that for every positive or factual statement I make, the usual suspects will be trotted out to voice their opposition. And I can almost tell you what they will say.
The best example I can give you of this is the recent launch here in Sydney of the joint AFP / NSW Police Counter Terrorism team. Only three journalists attended the launch. One reporter didn’t file a story at all and the headlines for the other two reporters were “Keelty Attacked for Court Testing”3 and “Police reveal fresh terrorism threats”4 . You could never imagine that the two journalists were at the same media event, which in every respect should have been a positive event.
As a consequence, a perception begins to build about the lack of independence between government, police, prosecutors and the courts. And we can’t afford to have that.
When the community begins to perceive that tensions exist between police, the courts and intelligence agencies, it is counter-productive to our true aims.
The erosion of trust and loss of support for our institutional governance and courts is precisely what our adversaries want.
If the situation becomes intractable, there are no obvious circuit breakers.
One suggestion I can offer is to establish a ‘Society of Editors’ or a similar body who can be addressed by the heads of institutions in a not-for-publication forum. I read with interest such an address given by the Head of MI5 in the UK, Jonathan Evans, to the UK Society of Editors in November last year. And interestingly enough, he spoke at a conference where the topic was ‘A Matter of Trust’.
The proliferation of the internet as a communications tool has resulted in a situation where almost everyone can post information online – fact or fiction.
Most newspapers in Australia and, indeed, around the world have an online presence today, and in the race to be the first media outlet to break a story, journalists compete to post breaking news online. Nothing wrong with that. As such, a story is posted to their website as quickly as possible with minimal content, and therefore sometimes with minimal fact-checking, which is then built upon and expanded online over time as the story unfolds. The advent of sites, such as Wikipedia, creates new opportunities for publication with seemingly little accountability.
And again here I am reminded of the same speech by John Doyle that “the internet allows anyone anywhere to access information that might be true, might be false, but you can find whatever information you need to prosecute any argument you want. Conspiracy theories abound”.
Most of the time, this is not a problem. But once false or misleading stories are posted online, it becomes increasingly difficult to have them removed or corrected. In fact, I addressed over 100 Supreme Court and Federal Court judges here in Sydney last week and I think it was a revelation that some of the corrections that they make to their online findings, unless corrected to the original finding, remain uncorrected infinitum. And this difficulty is compounded when so-called bloggers post online what they purport to be news. The issue is exacerbated when false or misleading reporting online is then referenced elsewhere.
And I wonder about, and speak to journalists about, whether they see this as an erosion of their own principles, professional ideals and ethics. In fact, I think it will be interesting to look back upon this period 10 years from now to understand its impact.
In conclusion, the AFP is committed to protecting the Australian community in accordance with our Ministerial Direction and we will try to maintain the integrity of what we do and how we do it, because in the AFP, as with any police force, without our integrity intact we will simply lose the confidence of the community, the Government, the courts and, in fact, the media.
It is for this reason that we treat our information very carefully. Interestingly, we are one of the few police forces in the world that has criminal sanctions for the unlawful release of information.
Unlike many of our critics, we welcome our levels of accountability and also unlike many of our critics who face no sanctions for getting it wrong, we will seek to correct the record when the need arises.
The Rudd Government has announced a judicial inquiry into the Haneef matter. For the record, we absolutely welcome such an inquiry and in fact, have initiated our own inquiry headed by former Justice Lawrence Street, into issues raised by Justice Adams during the Voir Dire in a recent trial resulting in an application by the Commonwealth DPP to ‘Nolle’ the matter.
Today, policing is very much about building networks – particularly with our international colleagues – and traversing the nuances of international, and also domestic, diplomacy.
It has become immensely important to understand the complexities of the broader political, social and economic environments in which we operate.
Despite the continually changing and evolving nature of policing, there is something that will always remain a constant. The AFP will always strive for transparency to government and to the community. We will continue to adapt to new roles and responsibilities and we will continue to achieve it while remaining apolitical.
- The House Divided Speech was delivered by Abraham Lincoln on 16 June, 1858, in Springfield, Illinois, upon accepting the Illinois Republican Party’s nomination for that state’s US senatorship. Accessed at http://usinfo.state.gov/infousa/government/overview/22.html
- John Doyle Andrew Olle Media Lecture 7/10/2005
- The Australian 17/12/2007
- The Sydney Morning Herald 17/12/2007