The Skehill Report
30 At some time prior to 25 June 2014, Mr Stephen Skehill was engaged to undertake an independent review with respect to Mr Mentink's allegations. According to his report dated 25 June 2014, Mr Skehill was "engaged by the Commonwealth of Australia, represented by the Australian Commission for Law Enforcement Integrity (ACLEI)". His report also states his understanding that it:
… will be provided by [the ALEI Commission] to the Commonwealth Attorney-General's Department and may be taken into account by the Commonwealth Minister for Justice in deciding whether or not to authorise a special investigation under the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act) into various allegations made by Mr Mentink of corrupt conduct within [the ALEI Commission]. I further understand that Mr Mentink will be provided with an opportunity to respond to my report if regard is to be had to it by the Attorney-General's Department and/or the Minister for Justice.
31 It is unclear precisely when, in the sequence of events outlined above, Mr Skehill was engaged. However, I infer it was some time after the Full Court decision in late 2013 and before the report was finalised on 25 June 2014. It is also unclear what it was that prompted the ALEI Commission to engage Mr Skehill. Nonetheless, from the timing and contents of the report, I infer it was, at least in part, in response to the Full Court decision mentioned above.
32 Because, as will appear below, it was one of the more important documents provided to the Minister for the purpose of making his decision, it is necessary to set out the contents of Mr Skehill's report in some detail. First, Mr Skehill outlined the details of his engagement as set out above. Next, he set out the relevant details of his personal background, experience and qualifications concluding with the statement:
• In light of the above, I am of the view that there is no actual or reasonably perceived conflict of interest that would inhibit me in any way in conducting the independent review sought by [the ALEI Commission].
33 Then Mr Skehill set out in some detail the background events which led to his review being requested. Since I have only set out brief details of that background above, it is appropriate to set out that section of his report in full as follows:
The following is a brief description of the events leading to the request that I undertake the present review. It does not purport to be a complete or detailed chronology of what is a very complicated factual situation. It is included only for the purpose of establishing the context for the review.
Mr Mentink was convicted of two offences involving children in 1993 and sentenced to six years imprisonment. He was released on parole in 1996.
He subsequently lived on board a sailing vessel he owned, the Larus II, on which he visited Indonesia and East Timor on a number of occasions in 2001 and 2002.
In 2003 he sailed from Darwin to East Timor where he landed and made application for a visa. In dealing with East Timorese officials in connection with that application, he apparently stated that he had no criminal record or refused to acknowledge that he had a criminal record. East Timor authorities were aware of his prior conviction, and he was denied a visa and required to depart East Timor. Before doing so, he made an application for review of the decision to refuse his visa application.
Some months later he again sailed to Dili, for the stated purpose of ascertaining the status of his application for review. He was arrested and held in detention for various periods. A series of court proceedings ensued. Eventually he was deported by air to Australia, which meant that the Larus II remained in Dili.
The Larus II was registered in Mr Mentink's name as an Australian ship by the Australian Maritime Safety Authority (AMSA). That registration was subsequently closed following representations to AMSA from a Mr Lee Thackray of the United Kingdom that he had legally purchased the vessel. Mr Mentink denies that such a sale occurred and claims that the Larus II was stolen from him.
In 2004 Mr Mentink complained to the Commonwealth Ombudsman about the role that he alleged AFP officers had played in the above events. [He separately has pursued against AMSA what he alleges was the wrongful removal of his registration from the Australian Register of Ships.]
Mr Sellars, then a member of the staff of the Commonwealth Ombudsman, subsequently concluded that AFP officers had not acted inappropriately in their dealings with Mr Mentink and the East Timor authorities and advised him that the Commonwealth Ombudsman would be taking no further action in response to Mr Mentink's complaint.
Mr Mentink was not satisfied by this outcome and continued to contest the actions of the AFP through various means.
Eventually, he conveyed allegations of corruption by AFP officers to [the ALEI Commission] in 2008 following its creation.
The Integrity Commissioner decided that various of the alleged corruption matters raised by Mr Mentink warranted investigation and directed that this be undertaken by the relevant unit of the AFP (the PRS) subject to requirements for periodic reporting to [the ALEI Commission].
At a later date responsibility for the investigation was taken back from the AFP by the Integrity Commissioner when it became that Mr Mentink's allegations included some against an officer who was by then employed in the PRS. Under the applicable legislation, the PRS cannot investigate allegations against a PRS staff member.
Subsequently, the Integrity Commissioner decided that AFP officers had not acted inappropriately in their dealings with Mr Mentink and the East Timor authorities and that [the ALEI Commission] would take no further action in response to Mr Mentink's allegations.
Mr Mentink was not satisfied with this outcome and continued to raise his concerns through various means. Included amongst these were requests under the Freedom of Information Act 1982 (FOI), as a result of which he became aware that Mr Sellars was no longer an officer of the Commonwealth Ombudsman but was employed within [the ALEI Commission] and had had some involvement with the [ALEI Commission] investigation.
Mr Mentink complained to both the (former) Minister for Justice and the Commonwealth Ombudsman about Mr Sellars' involvement and alleged that there had been corruption within [the ALEI Commission].
A delegate of the Commonwealth Ombudsman concluded that Mr Sellars was not inappropriately involved in the [ALEI Commission] investigation and that no further investigation by the Ombudsman was warranted.
The then Minister for Justice, the Hon Jason Clare MP, decided that he would not authorise a special investigation under the LEIC Act in relation to Mr Mentink's allegations of corruption in the [ALEI Commission] investigation.
Mr Mentink then sought judicial review of Minister Clare's decision. Before those proceedings were finalised, the current Minister for Justice, the Hon Michael Keenan MP, decided to revoke Minister Clare's decision and he now proposes to remake that decision after further consideration.
In advising Mr Mentink of this, the Attorney-General's Department advised Mr Mentink that Minister Keenan proposed, in remaking the decision, to have regard to certain specified documents and that it would seek further information from [the ALEI Commission] which the Minister may wish to also take into consideration (after Mr Mentink has been provided with an opportunity to respond to that further information).
Among the further information which the integrity Commissioner proposes to provide to the Department for possible consideration by the Minister for Justice is the report of the independent review to be conducted by myself.
34 In the next section of his report, Mr Skehill identified the question he was required to consider as follows:
… the question for consideration in this review is whether or not there is sufficient evidence indicating corruption in the [ALEI Commission] investigation to warrant the authorisation by the Minister for Justice of a special investigation under the LEIC Act.
Mr Skehill then set out his understanding of the "legal position relevant to this question, as it is upon the basis of that understanding that I have prepared this report." Significantly, he began that outline by stating:
The simple making by a person of an allegation of corruption within [the ALEI Commission] does not necessarily impose on the Minister any obligation to authorise a special investigation. This is because section 156 of the LEIC Act only operates where the information thereby provided by the person "raises" an "ACLEI corruption issue" as defined in the Act. …
Then after referring to the provisions of ss 156(2) and 6(2) of the ACLEI Act, he said:
Accordingly, the questions I consider in this independent review are:
• whether there is any evidence to suggest that Mr Sellars, or any other [ALEI Commission] officer, engaged in corrupt conduct in the course of the [ALEI Commission] investigation of the issues raised by Mr Mentink; and
• whether there is anything to suggest that the authorisation of a special investigation by the Minister might be reasonably required to ascertain whether Mr Sellars, or any other [ALEI Commission] officer, engaged in corrupt conduct in the course of the [ALEI Commission] investigation.
35 Thereafter Mr Skehill set out his understanding as to the scope of his review in the following terms:
I stress that this review is not intended to ascertain whether there is any other valid criticism that might be made of the [ALEI Commission] investigation. Mr Mentink has raised many other complaints about the [ALEI Commission] investigation and related action by [the ALEI Commission]. Some of these complaints may fall for determination by others - for example, in the Australian Information Commissioner's review of the decisions made on his requests under FOI. He has also raised complaints about other issues that do not involve action by [the ALEI Commission], including the 2004 decision of Mr Sellars while employed at the office of the Commonwealth Ombudsman and the decision of former Minister Clare, and these too are outside the scope of this review.
He concluded with the statement:
My sole concern is whether or not Mr Mentink has or is likely to have any valid issue of corrupt conduct within [the ALEI Commission].
36 At the outset of the "Analysis" section of his report, Mr Skehill noted what he considered to be a lack of clarity in Mr Mentink's allegations. He did so in the following terms:
While Mr Mentink has alleged corrupt conduct by [the ALEI Commission], it is not immediately clear precisely what conduct he claims has been corrupt.
He certainly complains about Mr Sellars who, he says, "may have negatively influenced" the course and outcome of the [ALEI Commission] investigation; he refers to "the Sellars conflict of interest"; and he says that "Sellars' activity and involvement served to prevent his 2004 decision coming under scrutiny as a result of outside pressures".
But he also speaks more generally about "[the ALEI Commission's] conduct".
Certainly he disagrees with the Integrity Commissioner's decision to terminate the [ALEI Commission] investigation and he is critical of the scope and depth of the investigation that was undertaken.
However it is not clear whether, apart from any negative influence Mr Sellars may have brought to bear on them, he regards these matters as involving corrupt conduct.
Accordingly, while I have looked in particular at the role played by Mr Sellars, I have not done this to the exclusion of other issues or possibilities. Instead, I have looked to see if there is any evidence of any other conduct by any other person in the conduct of the [ALEI Commission] investigation of Mr Mentink's allegations against the AFP that might constitute or be indicative of corrupt conduct within [the ALEI Commission].
37 Next, Mr Skehill provided a detailed description of the structure of the ALEI Commission and where Mr Sellars and other persons worked within that structure. He said:
At relevant times [the ALEI Commission] was structured into two Branches - the Operations Branch, and the Strategic & Secretariat Branch (which is now called the Secretariat Branch, but is hereinafter referred to by its title as it was at relevant times). The Operations Branch consists of staff who actively participate in investigations of corruption. The Strategic & Secretariat Branch provides support to the Operations Branch, from legal, administrative, corporate and strategic perspectives, and its officers are not expected to actively participate in investigations of corruption. Within this division of responsibility, the Strategic and Secretariat Branch has responsibility for handling [the ALEI Commission's] input into the preparation of Ministerial correspondence and for managing [the ALEI Commission's] interrelationship with the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (PJC).
Mr Sellars was and is an officer of the Strategic & Secretariat Branch, not of the Operations Branch.
There is another [ALEI Commission] officer (who I refer to hereinafter as "the second officer") who is also a former employee of the Commonwealth Ombudsman and who was in that former position at the time that Mr Sellars dealt with Mr Mentink's complaint to the Commonwealth Ombudsman in 2004. The second officer occupied and still occupies a position that is in the Operations Branch but in practice reports to the head of the Strategic & Secretariat Branch in respect of much of his work duties.
38 Mr Skehill then referred to a file note dated 11 November 2011 on the ALEI Commission file where a "second officer" had disclosed that he was employed in the office of the Commonwealth Ombudsman between 1997 and early 2010, but claimed that he had no recollection of having any dealings with Mr Mentink and, accordingly, "I have no basis to treat him, or to propose that [the ALEI Commission] treats him, more or less favourably than would be warranted by the material on the [ALEI Commission] file." After noting that, "[w]hen Mr Mentink later became aware of this, he suggested that the absence of a similar written declaration of prior involvement by Mr Sellars was a significant factor suggestive of corrupt behaviour by Mr Sellars", Mr Skehill observed:
It is thus important to ascertain exactly what involvement Mr Sellars and the second officer each had in or with the investigation of Mr Mentink's allegations against the AFP.
In accordance with the organisational structure described above, it would be expected that Mr Sellars would have no involvement with the investigation of an allegation of corruption in the AFP such as that made by Mr Mentink, unless or until there was some Ministerial correspondence or PJC involvement requiring a response by [the ALEI Commission]. Conversely, the second officer might or might not have some involvement in the conduct of the investigation because he effectively performs duties within both Branches.
Consistent with this expectation, the [ALEI Commission] files indicate that Mr Sellars played no role in, and had nothing to do with, the conduct of the [ALEI Commission] investigation until a related PJC inquiry was received in July 2010.
39 After analysing the involvement of these two people in the investigation, Mr Skehill concluded that Mr Sellars' only role was that of a "letterbox" and that the second officer had no relevant role. He said:
The [ALEI Commission] files thus indicate that Mr Sellars' only role was that of a "letterbox" and that he played no substantive part in, and did not influence, the outcome of the [ALEI Commission] investigation and the Integrity Commissioner's decision.
So far as the second officer is concerned, the files indicate that he had no involvement at all in the [ALEI Commission] investigation prior to the decision by the Integrity Commissioner on 17 October 2011. His involvement after that date appears to have been confined to preparing a draft letter for the Executive Director of the Operations Branch to advise Mr Mentink of the Integrity Commissioner's decision, and subsequently to provide advice to the Executive Director of the Operations Branch in relation to further correspondence received from Mr Mentink after he had been notified of the Integrity Commissioner's decision.
The [ALEI Commission] files thus indicate that the second officer did not play any part in the [ALEI Commission] investigation itself, and did not in any way influence the Commissioner's decision to terminate the investigation. He was involved in consideration of subsequent correspondence from Mr Mentink and may have been influential in the terminated investigation not being reopened, but I can detect no basis on which it might be suggested that his conduct in these respects was tainted by corruption.
40 Mr Skehill then turned to consider the following issue:
As noted above, the second officer made a note for file detailing his prior involvement in Mr Mentink's matters, while Mr Sellars did not. It is thus appropriate to consider whether any significance should be attributed to this, as suggested by Mr Mentink.
41 After observing that there was no "legal requirement" to create such a document, Mr Skehill posited that:
The far more fundamental question is whether or not an officer with some prior involvement in a matter should have any later involvement and, if so, the nature of that later involvement.
42 His answer to that question was expressed in the following terms:
Clearly, later involvement that was directed at preventing scrutiny and review of an officer's previous involvement could constitute corruption. Equally, later involvement that was limited to explaining the factual background of the prior involvement so as to facilitate such scrutiny and review would be quite proper.
In this case, Mr Sellars' later involvement as disclosed by the [ALEI Commission] files was far more remote than even that level or kind of proper involvement. The [ALEI Commission] files indicate that he simply acted as a "letterbox" to convey to the PJC Secretariat and to the AFP benign factual information generated by others as to the status of the investigation. There is no evidence that he was aware of any substantive detail of the investigation other than that it was ongoing. Moreover, the speed with which he performed his functions of relevance suggests that he had insufficient time to become aware of substantive detail before he performed those functions. The files are entirely consistent with him simply performed a "letterbox" function and exerting no substantive influence. Moreover, while he did not create a discursive note of his previous involvement such as that created by the second officer, he did record on the official file that he wished not to be involved in any decision in relation to the matter.
In contrast, the second officer was directed to undertake what was clearly a substantive role in relation to the investigation - to draft the letter that converted the short terms of the Integrity Commissioner's decision into a more expansive advice to Mr Mentink, and later to advise the Executive Director of the Operations Branch as to whether or not Mr Mentink's subsequent correspondence warranted recommending that the Integrity Commissioner reconsider his decision and reopen the investigation.
Viewed in this factual context, it is in my view quite understandable why the second officer might have felt it inappropriate for him to create the file note that he did and why Mr Sellars did not consider it necessary. I do not believe Mr Sellars can reasonably be claimed to have acted corruptly by not creating a note for file of his previous involvement.
43 Mr Skehill then proceeded to consider and exclude any relevant involvement by Mr Sellars in preparing the response to Senator Mason's letter in April/May 2012. Thereafter, he turned to consider whether Mr Sellars had any involvement in preparing the ALEI Commission's response to the Ombudsman's investigation of Mr Mentink's complaint between May and August 2012. On that issue, Mr Skehill concluded:
The Executive Director of the Operations Branch [of the ALEI Commission] was integrally involved in the investigation of Mr Mentink's allegations of corruption in the AFP. The case officers reported to him and were subject to his direction, and the recommendation to the Integrity Commissioner on which the Commissioner based his decision was signed off by him. He was thus in a key position to know whether or not Mr Sellars exercised any influence in the conduct of the investigation. He clearly advised the Commonwealth Ombudsman that Mr Sellars exercised no such influence. There is nothing in the [ALEI Commission] files to suggest that this was incorrect.
44 In the "Conclusion" section of his report, Mr Skehill recorded that "there is no available evidence that Mr Sellars or any other [ALEI Commission] officer engaged in corrupt conduct in relation to the investigation of Mr Mentink's allegations of corruption in the AFP". He went on to elaborate this conclusion in the following terms:
Not only is the absence of such evidence on the [ALEI Commission] file consistent with Mr Sellars not exerting any influence over that investigation, there is some evidence on the file that positively indicates he did not exert such influence:
• his email of 5 November 2010 (i.e., before Mr Mentink raised concerns about Mr Sellars' involvement) that he preferred not to be involved in relevant decision-making; and
• after Mr Mentink raised those concerns:
• the April 2012 [ALEI Commission] advice to the Attorney-General's Department that Mr Sellars had not had any role in such decision-making; and
• the [ALEI Commission] response to the May 2012 request for information from the Commonwealth Ombudsman, to the same effect.
Thus, on the basis of the investigation by the Commonwealth Ombudsman and the content of this independent review, I consider that the Minister for Justice would be justified in now deciding not to authorise a special investigation under the LEIC Act because there is no evidence available to support Mr Mentink's allegations of corruption within the [ALEI Commission].
I further consider that there is no available evidence that suggests any reasonable likelihood that a special investigation, utilising the coercive powers available to it under the LEIC Act, would identify any additional evidence indicative of corrupt conduct on the part of Mr Sellars or any other [ALEI Commission] officer in relation to the investigation of Mr Mentink's allegations of corruption in the AFP.
45 In the remainder of the "Conclusion" section of his report, Mr Skehill noted that both his review and the Ombudsman's investigation had been "limited to examination of evidence contained on the [ALEI Commission files and that neither has extended to interviewing Mr Sellars or other persons involved in the conduct of the [ALEI Commission] investigation". He then acknowledged that this gave rise to the "conceptual possibility" that "events occurred which were not recorded on, or intimated at in, the [ALEI Commission] files and that these might constitute corrupt conduct by an [ALEI Commission] officer". Having done so, Mr Skehill turned to consider whether he should have sought to obtain "additional oral evidence" in the course of his review. On that question, he identified three alternative courses of action. The first was to seek to conduct voluntary interviews with relevant present or former ALEI Commission officers, the second was to request those persons to provide him with statutory declarations in response to his specific questions and the third, which was external to his review, was for the Minister to appoint a special investigator under the LEIC Act with all the powers vested in such an investigator. Ultimately, he concluded that he should not pursue either of the first two alternatives because "my doing so could inhibit the effectiveness of the third course of action (e.g., by alerting relevant officers to particular lines of inquiry) if the Minister subsequently decided to pursue it". Nonetheless, Mr Skehill concluded his report by stating "however, I stress that it remains my view that the Minister would be fully justified in declining to authorise a special investigation on the strength of the material now available to him".