WA Senate recount investigation – a breach of security in itself?


Ballow_SecurityBy Chris Cubbage, Executive Editor

On April 5, 2014, Western Australians went back to the polls – thanks to the ‘lax’ and ‘complacent’ practices of the Australian Electoral Commission (AEC) at the September 2013 Federal Senate Election. The AEC Commissioner and WA State Manager both resigned.

In December 2013, former Australian Federal Police Commissioner, Mick Keelty AO APM, based in Canberra, investigated the loss of 1,370 Western Australian Senate votes. Mr Keelty criticised the Western Australian Electoral Commission’s ‘lax’ and ‘complacent’ practices. He found there was no apparent policy or process to cross check rubbish and recycling before disposal to ensure ballot papers were not accidentally thrown out. He also identified a ‘loose planning culture’ and a ‘complacent attitude toward ballot papers in the AEC’s WA operation’. He recommended specific Ballot Paper security provisions, monitoring by CCTV and intruder alarm systems.

The Special Minister of State, Michael Ronaldson, said the Keelty report raised serious concerns about the current practices of the AEC, in relation to the security of ballot papers, logistics and training.

Yet turning the investigation spotlight back on itself, the question becomes could Mr Keelty himself be in breach of the WA Security and Related Activities (Control) Act 1996 (the Act)? Technically, should Mr Keelty have been a licensed security consultant to give this advice? And pursuant to the regulatory requirements of the Act, was Mr Keelty even appropriately qualified to conduct the inquiry in the first place?

In Section 28 of the Security and Related Activities (Control) Act 1996 (the Act), an investigator is a person who for remuneration conducts investigations into the conduct of individuals or bodies corporate or the character of individuals.

Section 30 of the Act, states a person must not act as an investigator except under the authority of an investigator’s licence, and subject to a $15,000 penalty.

Section 13 of the Act states a security consultant is a person who carries out all, or any, for remuneration investigates or advises on matters relating to the watching, guarding or protection of property.

Section 17 of the Act states, a person must not act as a security consultant except under the authority of a security consultant’s licence. A person must not carry out such activities of a security consultant that a person holding a particular class of security consultant’s licence is authorised to carry out except under the authority of a security consultant’s licence of that class, and subject to a $15,000 penalty.

On 5 November 2013, Mr Keelty was engaged by the AEC as an independent contractor, without entitlement to claim any employment entitlements and without the need to have any insurances, though private worker’s compensation and professional indemnity insurance was recommended by the AEC Commissioner. The AEC sought Mr Keelty to conduct an urgent examination into the circumstances that led to the exclusion of votes in the WA Senate recount. Yet, as of 5 November 2013, Mr Keelty was not a licensed investigator or a licensed security consultant in Western Australia.

The intention here is not to discredit Mr Keelty’s investigation or security recommendations, but to highlight when regulatory compliance is overlooked and inadequate. For example, renewing a security agent, consultant and investigator licence will cost more than $2,000 in WA. Mr Keelty was engaged on terms in excess of this amount, per day. Yet, if an Investigator or Security Consultant is engaged by a private sector organisation, they would have been required to be licensed and to do so, would have presented the mandatory investigator and security qualifications required under the legislation – noting that former police qualifications are not recognised.

Mr Keelty holds a Masters of Public Policy and Administration and a Graduate Certificate in Criminal Justice Education. The WA legislation is such that the security consultant must have a minimum qualification of a Certificate IV in Investigations and a Certificate IV of Security Risk Management. The prescribed qualification approach in place makes comparison of skills and experience impossible and unnecessarily complex.

After raising concerns, the Western Australian Police Licensing Enforcement Division informed in writing that, ‘Mr Keelty has not breached the Security and Related Activities (Control) Act Legislation, as Mr Keelty did not act as an investigator as defined in Section 28 of the Security and Related Activities (Control) Act 1996’. WA Police further informed, ‘…the inquiry is to be made into the procedures relating to the handling of ballot papers and make recommendations to improve procedures…’ and that the ‘inquiry undertaken by Mr Keelty was limited to procedures… and not conduct’.

Yet, Mr Keelty refers to his separate report concerning the ‘actions of individuals’ and is quoted by many media sources in reference to not ruling out the possibility of corruption. It is apparent that he included ‘individual’s actions and conduct’ in his inquiry – thereby falling into the gambit of an investigation, as defined in the Act.

Despite the requirements of the legislation, Section 5(2) of the Act exempts the need to be licensed while a person is performing official duties as a public officer of the Commonwealth or State Government. A public officer is defined as a person who is employed by the Crown or by a body that is an agent of the Crown. And in the shadow of findings from recent NSW Independent Commission Against Corruption (ICAC) hearings, a person providing consultancy services to Government agencies, in performing work for these agencies, is a public official for the purposes of the NSW Independent Commission Against Corruption Act 1988. Thereby, Mr Keelty was employed as a public officer and exempt from licence requirements. Indeed, it seems on that basis that any person engaged as an independent contractor by any Government agency is exempt to hold a licence under the Act.

What should be asked is, “What are the ramifications for the future of security services if legislation isn’t applicable or adhered to by Government but places restrictions on the private sector?” Does it demonstrate that legislation controlling the security profession is unnecessary, in particular when Government is able to parachute advisors in at will, but the private sector is limited to advisors in their own State?

In contrast to the physical security and inquiry profession, the Information Technology Security Professionals continue to be self regulated. It remains time for security professionals, of both physical and cyber domains, to be extracted from the limitations of the state licensing provisions. This then allows the police enforcement divisions to focus on monitoring and controlling the frontline officer, installer and crowd control elements of the industry.

The engagement of Mr Keelty for this investigation and security review, albeit exempt from licensing requirements under Section 5(2) of the Act, provides another example why national reform is needed of security and inquiry legislation and controls.

Australia’s leading security industry and professional bodies all support reform and mutual recognition of the security services sector across the States and Territories – maybe the AEC debacle, set to cost the public purse an additional $13 million, will highlight again why it is in Australia’s national interests to start paying the sector the attention it deserves.

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