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PREFACE
... international crime and drug trafficking are forces of destruction
that have no tolerance for national borders ... It means ... giving,
each in our own nations, our law enforcement officials the tools they
need to cooperate and succeed. [1]
Background
One of the more significant duties of the Parliamentary Joint Committee
on the National Crime Authority (referred to hereafter as the PJC) is
set out in paragraph 55(1)(a) of the National Crime Authority Act 1984
(the NCA Act) in the following terms:
The current PJC was established at the commencement of the 38th Parliament
in May 1996. By October 1996 the members of the PJC had concluded
that it was timely that it should conduct a comprehensive evaluation of
the role and functions of the National Crime Authority (NCA) to determine
whether it was still meeting the objectives for which it was established
and, if it was to continue, whether its statutory charter needed reform
to ensure its efficiency and effectiveness.
Several factors contributed to the PJC's decision. Predecessor committees
had conducted an initial evaluation of the NCA in 1988 [2]
and a comprehensive evaluation in 1990-91, which had led to its November
1991 report entitled Who is to Guard the Guards? An Evaluation
of the National Crime Authority. [3]
Yet, despite a considerable degree of bipartisan support for and the
obvious merit of many of the report's 11 recommendations, consequent statutory
reform has proved elusive. In addition, significant budget cuts and the
implementation of the Report of the Review of Commonwealth Law Enforcement
Arrangements [4] and the Report on the Future Strategic Role
of the National Crime Authority in State Law Enforcement Systems [5]
meant that the law enforcement environment had undergone significant
change in more recent years.
Further, the NCA's operations, which like all law enforcement agencies
had never been far from controversy during its 13 year history, had been
the subject of particularly close scrutiny arising from the rulings against
aspects of the Authority's operations by Justice Merkel in the Federal
Court of Australia in June 1996 and Justice Vincent in the Victorian Supreme
Court in August 1996.
The PJC also took note of the announcement by the Commonwealth Attorney-General,
the Hon. Daryl Williams AC QC MP, that he had asked his Department to
review the role of the NCA in the case of Mr John Elliott, who had been
acquitted by Justice Vincent after he had ruled that the bulk of the evidence
which was to be put before the jury at the trial was inadmissible. However,
unlike the PJC's inquiry, the processes of a departmental review are not
generally held in public, would not necessarily involve public input,
and its report would not necessarily be published. There have also been
questions raised about the degree of independence of the Attorney-General's
Department because of its intimate involvement in the NCA's activities.
In addition the PJC was conscious that its ability to take evidence under
parliamentary privilege often results in a higher level of frankness in
witnesses' statements, which it saw as a major benefit in the current
circumstances.
The PJC publicly announced its intention to conduct its evaluation of
the operations of the NCA on 17 October 1996 and it wrote direct
to the probable major interested parties to give them advance notice of
the PJC's terms of reference. It waited until February 1997 to formally
launch its inquiry by placing advertisements in the national media inviting
interested persons or organisations to provide written submissions. The
PJC again wrote direct to a large number of individuals and organisations
who might have been expected to contribute to the PJC's inquiry.
The hiatus had been intended to provide opportunities for the inquiry
by the Attorney-General's Department into the Elliott case to be completed
and, hopefully, for its findings to be published, and for appeals to have
been settled in relation to the Merkel and Vincent judgements. The PJC
decided to press ahead with its own inquiry when it became apparent that
progress with these matters would be relatively slow. The PJC anticipated
at that time that the departmental review and the various appeals would
be settled during the course of the PJC's inquiry and that their outcomes
could be included in its deliberations. It has transpired that several
major appeals were settled during the course of the inquiry (although
further appeals are, of course, always a possibility).
The PJC is most concerned, however, that the results of the report of
the Attorney-General's Department have not been made available to it some
18 months after its instigation. The PJC received advice from the Minister
for Justice, Senator the Hon. Amanda Vanstone, in February 1998 that the
Inter-Governmental Committee had resolved on 11 November 1997 to give
consideration out of session to the provision of a copy of the report
to the PJC, on an in confidence basis. At the time of finalising this
report, March 1998, the Department's report was still awaited. It is a
matter of regret and concern to the PJC that its evaluation of the NCA's
exercise of its powers in the John Elliott case has had to be made without
the benefit of the report of the Attorney-General's Department.
Terms of reference
The terms of reference adopted by the PJC were those used by the Committee
for the purposes of its 1990-91 evaluation. They are that:
The Committee will examine in particular:
(1) the constitution, role, functions and powers of the National Crime
Authority, and the need for a body such as the Authority, having regard
to the activities of other Commonwealth and State law enforcement agencies;
(2) the efficiency and effectiveness of the Authority;
(3) accountability and parliamentary supervision of the Authority; and,
(4) the need for amendment of the National Crime Authority Act 1984.
Conduct of the inquiry
The PJC nominated 4 April 1997 as the date by which submissions should
be provided. Submissions were forwarded for some considerable period after
that date and some 50 submissions were received and carefully considered
by the PJC. Details of those submissions for which confidential status
was not sought by their authors is given in Appendix 1. Two volumes containing
these submissions are available from the secretariat.
The PJC commenced its program of public hearings in Brisbane on 21 May
1997. Further hearings were held in Sydney, Adelaide, Melbourne and Canberra
to ensure that the PJC received a broad and representative input to its
inquiry. Details of the several public hearings and the witnesses who
attended are detailed in Appendix 2. The transcripts of evidence are also
available from the secretariat.
In the course of its hearings, the PJC was provided with material which
it treated as exhibits. Details are given in Appendix 3.
The PJC also held a number of in camera hearings where matters of a sensitive
or personal nature were discussed. These hearings provided the PJC with
useful background information which has proven helpful to the PJC's analysis
of the issues before it.
Finally, it should be noted that the PJC, in its conduct of its statutory
monitoring role, conducted hearings with representatives of the NCA on
22 October 1996, 3 March 1997 and 16 December 1997 and with Ms Betty King
QC, a former NCA Member, on 21 October 1996. While these hearings may
not have been conducted within the parameters of the PJC's evaluation
inquiry, the evidence taken was nonetheless of considerable relevance
to the Committee's deliberative processes and it has accordingly been
cited in this report where appropriate. The transcripts of these four
hearings are also available from the secretariat.
Procedural issues which arose during the inquiry
The PJC's conduct of its inquiries is underpinned by several authorities.
While its establishment and duties are provided in the National Crime
Authority Act 1984, matters relating to the powers and proceedings
of the PJC are determined by resolution of both Houses of the Parliament.
A specific resolution laying the basis for certain of the PJC's powers
and proceedings was most recently declared by the Houses in May 1996.
By convention, joint committees operate under the standing and other orders
of the Senate.
While some of the issues that arose during the PJC's inquiry are addressed
at the appropriate point in this report, other more general observations
should be made. Since February 1988 the Senate has adopted procedures
to be observed by its committees for the protection of witnesses, which
supplement the standing orders and the provisions of the Parliamentary
Privileges Act 1987. Included in these procedures are provisions which
require a committee chairman to ensure that all questions that are put
to witnesses are relevant to the committee's inquiry and that the information
sought by those questions is necessary for the purpose of that inquiry.
This issue arose in the course of the PJC's public hearing on 12 June
1997 and, after a member of the Committee had sought its discussion of
a Chairman's ruling in this respect, the PJC had resolved that a certain
line of questioning by one of its members should be expunged from the
transcript because it failed to meet the tests of relevance and necessity.
The PJC subsequently referred its deliberations at the 12 June hearing
to the Senate's Committee of Privileges for guidance, inter alia, on its
handling of this issue. At the time of the preparation of this report,
the Privileges Committee had not reported on its inquiry.
Another of the Senate's procedures requires a committee to provide reasonable
opportunity for a person who has been named adversely during a hearing
to be given access to that evidence and to respond to that evidence by
written submission and, where warranted, by appearance before the committee.
Such instances arose on several occasions during the course of the PJC's
inquiry. The PJC provided sufficient details for the person to respond
to the adverse reflection made about them from both the public and in
camera hearings and, in turn, it received a number of responses. After
giving consideration to the responses, and taking note of the lack of
relevance and necessity to the PJC's continuing inquiries of the matters
raised therein (the adverse reflections being essentially of a fairly
dated and personal nature, which did not add value to the PJC's examination
of systemic problems with the NCA), the PJC resolved not to further pursue
any of the matters raised.
The Senate procedures also provide that witnesses may make application
to be accompanied by counsel, who are available to give appropriate advice
to the witnesses before answering questions asked of them by a committee.
The PJC acceded to such requests on every occasion sought by a witness.
The Senate procedures are clear that only the witness, and not the counsel,
should address a committee. On several occasions, the PJC was asked by
a witness to permit counsel to answer a question on their behalf or the
counsel requested the opportunity to address the PJC. The PJC again agreed
to such requests. It must be noted, however, that counsel in this situation
take on the status of witnesses (unlike their role in the courts) and
are personally responsible for the evidence they give. There is no concept
of legal professional privilege in Senate procedures.
Brief history of the National Crime Authority and the Parliamentary
Joint Committee
Both the National Crime Authority and the Parliamentary Joint Committee
on the National Crime Authority were created by the National Crime
Authority Act 1984, which came into effect on 1 July 1984.
The NCA was established as an independent statutory authority in recognition
of the need for a specialist law enforcement agency to combat organised
crime. While being the creation of an act of the federal Parliament, the
NCA is empowered under complementary legislation in each State and Territory
to operate within their jurisdictions. It is this capacity to target organised
criminal activity of national importance, using the special powers bestowed
on it by the Parliament, that gives the NCA its unique role in the Australian
law enforcement system.
A comprehensive description of the establishment of the NCA was contained
as an appendix to the February 1994 Report of the Review of Commonwealth
Law Enforcement Arrangements. The PJC has reproduced this summary
as Appendix 4 to this report for the benefit of readers who might require
a more comprehensive appreciation of the background to the NCA's creation.
The PJC was established to oversee the Authority on behalf of the Parliament.
The provisions establishing the PJC were not initiated by the Government
but were inserted into the NCA Act by an amendment made in the Senate.
[6] The role and functions of the PJC are discussed
at length in Chapter 5.
The PJC notes that it has made recommendations in this report which are
intended to remedy some serious and longstanding flaws in the current
system of parliamentary supervision of the NCA. For too long the existence
of the PJC has given an illusion of scrutiny of the NCA which has been
basically unfulfilled in practice, largely as a result of deficiencies
in the statutory model initiated by the Senate in 1984. The PJC wishes
to stress its strongly held view that, should its recommendations in this
important respect not be accepted by the Government, the PJC should be
abolished. It could then be replaced by a joint standing committee on
Commonwealth law enforcement arrangements, which would not have direct
oversight responsibility for the NCA.
Structure of the report
This report is in seven chapters, which are framed to address the major
elements of the PJC's terms of reference in as distinct a manner as possible.
Some overlap is obviously unavoidable, however. There is also no specific
chapter dealing with term of reference (2), with the PJC addressing the
issue of the NCA's efficiency and effectiveness in the context of its
overview assessment of the NCA's operations in Chapter 1. The PJC's views
on the Authority's efficiency and effectiveness also underpin its general
consideration of the need for reform set out throughout the report.
Chapter 1 deals with the critical issue of whether the NCA is still meeting
the need for which it was established and whether, in view of changes
in law enforcement arrangements at the national and State/Territory levels,
there is still a need for the Authority.
The PJC's conclusion that a body such as the NCA is needed as much now
as it ever was leads into the discussion in Chapter 2 of the role
and functions of the NCA and assesses to what extent they are still appropriate.
Aligned with the PJC's view that the NCA should have its role and functions
clarified (and possibly expanded), the PJC addresses in Chapter 3 the
continuing relevance of the references system by which the NCA's access
to its special coercive powers is authorised, while in Chapter 4 it specifically
addresses the powers that it believes are necessary for the Authority
to achieve the desired goals. The PJC has highlighted the complex nature
of the NCA Act and, in recognition of the need for substantial amendment
of the Act arising from the implementation of its recommendations in this
report, it has called for a rewrite to provide a statute which would be
both comprehensive and comprehensible.
Naturally, with the granting of extensive powers to public officials,
especially those in the law enforcement community, the issue of accountability
for the use of those powers is one of paramount importance. The PJC discusses
in Chapter 5 its views on the accountability and parliamentary supervision
of the NCA while in Chapter 6 it examines the related issue of the need
for the introduction of a workable system to deal with complaints made
against the Authority.
The final specific issue discussed in Chapter 7 relates to the composition
of the NCA and the nature of its staffing structure.
Acknowledgments
The PJC wishes to express its gratitude to all witnesses to its inquiry,
whether by written submission, by personal attendance at a hearing or,
in many cases, by both written and oral submissions. The PJC received
close to 300 pages of submissions and took nearly 1200 pages of oral evidence.
Contributors can be assured that, while the PJC has been unable in this
report to give full recognition to the input of every individual or organisation
to its inquiry, their contributions have been carefully considered by
the PJC in reaching the conclusions it has. It is the PJC's expectation
that, largely through the contributions of submitters and witnesses, a
more effective national crime body will eventuate to take on the law enforcement
challenges of the new millennium.
The PJC also records its sincere appreciation of the efforts of the officers
of the secretariat who assisted it with the conduct of the inquiry and
with their help in the drafting of this report.
John Bradford MP
Chairman
Footnotes
[1] President of the United States, Mr Bill
Clinton, address to the Joint Meeting of Parliament, 20 November 1996.
[2] The National Crime Authority - An Initial
Evaluation, Report by the Parliamentary Joint Committee on the National
Crime Authority, Canberra, May 1988. This report is referred to in this
report as the Initial Evaluation report.
[3] Who is to Guard the Guards? An
Evaluation of the National Crime Authority, Report by the Parliamentary
Joint Committee on the National Crime Authority, Canberra, November 1991.
This report is referred to in this report as the Who is to Guard the
Guards? report.
[4] Report of the Review of Commonwealth
Law Enforcement Arrangements AGPS, Canberra, February 1994. This report
is referred to in this report as the CLER report.
[5] Report on the Future Strategic Role of
the National Crime Authority in State Law Enforcement Systems, by
Mr John Avery AO and Sir Max Bingham QC, April 1995, unpublished. This
report is referred to in this report as the Avery/Bingham report.
[6] Footnote: See page v for the PJC's statutory
duties.
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