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Chapter One

THE NEED FOR A NATIONAL CRIME AUTHORITY

... beyond argument there is a serious organised crime problem in Australia, ... it is escalating and ... it poses a most serious threat to this country. [1]

WHY A NATIONAL CRIME AUTHORITY?

1.1 During the 1970's and early 1980's a series of Royal Commissions conducted by Justices Moffitt, Woodward, Williams, Stewart and Mr Frank Costigan QC, reported that organised crime existed in Australia and that there was a need to take more effective action to combat it. Those Commissions, and the disappearance of anti-drugs campaigner, Donald MacKay, in Griffith, drew the spotlight of public attention to the issue and significance of organised crime.

1.2 As awareness of the problem grew so did the belief that police forces, with their traditional methods of detection and investigation and their jurisdictional limitations, were ineffective in countering it. The reasons given for this failure of law enforcement in the early 1980's were summarised in a report of the PJC's then predecessor in 1988. They were that:

• policing is reactive rather than proactive and does not assemble intelligence which would enable individual offences to be seen as part of a pattern of illegal activity;
• whereas the activities of criminal groups transcended administrative, jurisdictional and national boundaries, Australian law enforcement had been fragmented and there had been a failure to exchange information between agencies or even within single agencies;
• police forces lacked the resources and specialist expertise to attack criminal syndicates; and
• police lacked the power of Royal Commissions to require people to answer questions, produce documents or to access taxation records. [2]

1.3 Despite the acknowledgement that police agencies were limited in their ability to counter organised crime, the mood of the times was such that coercive powers similar to those of Royal Commissions would not be granted by Governments to an existing police force. [3]

1.4 If existing agencies were incapable of dealing with this serious threat to Australian society, and if they were not to be invested with the power and resources deemed necessary to tackle organised crime, an alternative was clearly required.

As a result, the Government has concluded that existing Australian law enforcement efforts need to be supplemented by the establishment of a new standing body with the necessary expertise and powers to make an effective attack on organised crime. ... However it must be emphasised that the Commission is intended to supplement the efforts of regular law enforcement bodies, not supplant them, ... [4]

1.5 Following extensive processes of consultation, review and amendment, the National Crime Authority Act 1984 (the NCA Act) came into effect on 1 July 1984 and was subsequently underpinned by complementary legislation in each State and Territory. This legislation enabled the NCA to investigate relevant offences (as defined in the NCA Act) against Commonwealth, State and Territory legislation. In this way it became a truly national crime fighting agency.

1.6 The Authority has been described as fighting `sophisticated, complex, organised crime that transcends State boundaries and the jurisdictional limitations of the existing law enforcement agencies'. [5] While the NCA's role relates to the nation's efforts to counter organised crime, it is not restricted, as many assume, to investigating crime as it also has significant responsibilities to develop and disseminate information and intelligence, co-ordinate joint task forces with other Australian jurisdictions and recommend law reform. The NCA is also invested with coercive powers, beyond those available to police agencies. It may use those powers when it receives a formal reference to investigate from the Commonwealth or a State/Territory Government.

DEVELOPMENTS IN LAW ENFORCEMENT

1.7 Since the NCA was established in 1984, there has been a proliferation of agencies within the sphere of Australian law enforcement. This is of particular interest since one of the factors which led to its establishment was a belief that law enforcement in this country was too fragmented and, therefore, less effective than it might have been.

1.8 The range of new agencies include the Australian Transaction Reports and Analysis Centre (AUSTRAC); the New South Wales (NSW) Crime Commission, NSW Independent Commission against Corruption (ICAC), NSW Police Integrity Commission, the Queensland Criminal Justice Commission (CJC), the Queensland Crime Commission and the Western Australian Anti-Corruption Commission.

1.9 Mr Costigan saw this growth in agencies in a negative light:

I must say that I am troubled by the proliferation of the bodies we are seeing around Australia. I think that one reason for that is because the crime authority, which was supposed to be the national body to do these things, was not set up properly ... You have a number of these bodies ... each with great powers and each with the capacity to investigate in the same area but on a state basis and with a capacity to do great harm to innocent people. [6]

1.10 The Australian Federal Police Association (AFPA) also saw flaws in these arrangements. It noted that the number of agencies is likely to increase in response to corruption issues and deficiencies in existing systems but that:

They are too small and unconnected to a national policing strategy. Without either a global or a fully combined national focus, they are ultimately doomed to irrelevance. Perhaps not in our time. But certainly in time. [7]

1.11 The relevance of the NCA in this changing environment has been reviewed several times in recent years. This PJC published a report in November 1991 which examined, among other things, the need for a body such as the NCA and its effectiveness. While it supported the retention of the Authority, it recognised that its role and functions needed to be critically evaluated. [8]

1.12 Then, during 1993-94, the Commonwealth undertook the Review of Commonwealth Law Enforcement Arrangements (commonly referred to as CLER or the CLER report). Its terms of reference included to:

• examine options for law enforcement arrangements to determine which best meets the Commonwealth's objectives in relation to its involvement in law enforcement activities, and
• ensure that the role and function of agencies involved in law enforcement are clearly defined:
  • to ensure that there is no unnecessary duplication or overlap in relation to their activities; and
  • to ensure that there is no confusion between agencies as to their role. [9]

1.13 The Review team saw 'the original logic justifying the NCA as a specialist agency addressing organised crime as very perceptive for its time. Now, more than before, that logic still applies'. [10] It recommended that the NCA be retained `as a stand-alone strategic and co-ordinating body of State and Commonwealth agencies, to regulate, deter and bring to justice those engaged in organised crime. ... the NCA, appropriately tasked and resourced, is in the best position to achieve those aims. [11]

1.14 Nevertheless, the Review resulted in a number of significant changes which affected the NCA both directly and indirectly. It recommended the establishment of a Commonwealth Law Enforcement Board (CLEB), with functions which included to:

• Advise the Commonwealth Minister for Justice on:
  • matters affecting the law enforcement interests of the Commonwealth, including the impact on the criminal environment of major government policy changes;
  • the functions of, and priorities to be pursued by, Commonwealth law enforcement agencies;
  • the allocation of resources to Commonwealth law enforcement agencies within the portfolio;
  • statutory appointments to Commonwealth law enforcement agencies; and
  • national law enforcement issues in which the Commonwealth has an interest.
• Prepare national criminal assessments for the Minister and the Government.
• Provide Government with, and review annually, a list of Commonwealth law enforcement priorities for endorsement.
• Monitor and report to the Minister on the performance of Commonwealth law enforcement agencies against the priorities endorsed by the Minister.
• Relate priorities and functions to resources and report to the Minister on how Commonwealth law enforcement resources have been applied to Government's priorities.
• Direct Commonwealth law enforcement agencies on appropriate coordination arrangements to facilitate common services, exchange of information and joint operations.
• Authorise standards which represent best practice in the operations and technology of Commonwealth law enforcement agencies. [12]

1.15 CLEB is chaired ex officio by the Chairperson of the NCA, and its members are the heads of the Australian Federal Police (AFP), AUSTRAC, the Attorney-General's Department and an executive member who heads the Board's support group. Following the transfer of portfolio responsibility for the Australian Securities Commission (ASC) from the Attorney-General's Department to the Treasury, the Chairman of the ASC ceased to be a member of CLEB at the end of 1996.

1.16 Another significant area in which the CLER report affected the NCA was in its recommendation that there needed to be a `strategic alliance' between the NCA and the AFP. In practice this meant that a high proportion of NCA investigators would be AFP officers and that technical and other services of the two agencies should be integrated as far as possible. It was anticipated that significant savings would be achieved through the integration of AFP and NCA corporate support, police technical unit functions and information technology. [13] As a result, cuts to the running cost bases of both agencies were made in subsequent budgets.

1.17 The CLER report did not, however, recommend an amalgamation of the two Commonwealth agencies. While it recognised that the organised crime role of the NCA is close to the central ground of operation of the AFP, it put the view that the NCA's focus:

... should not be enforcement against particular crimes, but rather understanding the criminal organisational structures involved, their weak points and being able to call into play all of the potential defences and remedies. [14]

1.18 It recommended that the Authority's role be more clearly defined:

History suggests that, notwithstanding current Ministerial arrangements, legislation on which the NCA's activities are based would seem to permit the operation of the NCA as a `ninth police force' in its own right or coordinating others against organised crime groups of the type being discussed in this Section. That being so, the Review believes that the coordinating role is the appropriate model and that consideration should be given to legislatively confining the NCA to that type of defined role. The nature of the NCA should not be something at the whim of the management of the NCA. It should be something decided by Parliament. As the Australian Federal Police Association submitted to the Review in respect of the NCA:

“At one stage in its history it took the role of anti-corruption campaigner, and another time the guise of nothing more than a large drug squad, and at still another touted the intention of becoming a large fraud squad”. [15]

1.19 This recommendation was accepted by the Government but no subsequent legislative change was enacted. The PJC assumes from this that, while the matter received consideration, a change to the NCA Act was not considered necessary.

1.20 CLER also recommended that the strategic projects being undertaken by the NCA should be expanded and it nominated a menu of items for which the NCA should have a strategic and/or coordination role. These were:

• Chinese Triad societies
• The `Ndrangheta
• Lebanese criminal groups
• Vietnamese organised crime groups
• East Coast criminal milieu
• Romanian crime groups
• Outlaw motorcycle gangs
• Organised paedophile networks
• Colombian cocaine syndicates
• Yakuza groups
• Eastern Bloc crime groups. [16]

1.21 Another recommendation sought the removal of any impediments to Commonwealth agencies working on NCA task forces. CLER believed that `the whole area of co-ordination needs to be strengthened'. It also called for a re-examination of the NCA's staffing resources given the need for a multiplicity of skills within the Authority. [17]

1.22 The CLER report had a significant effect on the Authority. Its findings, most of them accepted and implemented by the Commonwealth Government:

• defined its areas of focus through a menu of work;
• sought to confine its role to a coordination one;
• brought it into a closer cooperative alliance with the other Commonwealth agency most concerned in combating organised crime, the AFP;
• created a board with specific responsibilities in relation to the functions, resources, priorities and performance of Commonwealth agencies such as the NCA; and
• sought to define its role vis a vis the Australian Bureau of Criminal Intelligence (ABCI). The NCA was to undertake strategic intelligence studies as a basis for national strategic intelligence assessments on behalf of the Commonwealth, states and territories whereas the ABCI was to prepare assessments in such serious criminal matters as interstate serial murders, which are primarily State/Territory matters. [18]

1.23 The CLER report was viewed with some scepticism outside the Commonwealth sector because of its potential to affect the NCA's relationships with the States and Territories and possibly to impact adversely upon State/Territory efforts to counter organised crime. As a result the Police Ministers of New South Wales and Victoria established a review to examine the future strategic role of the NCA within their law enforcement systems and the need for procedural changes to ensure NCA responsiveness to State and Territory needs and objectives. [19] The review, conducted by Mr John Avery, (a former Commissioner of the New South Wales Police Service) and Sir Max Bingham, QC (a former Member of the NCA), was completed in April 1995.

1.24 The Avery/Bingham Review found widespread approval for the way in which the NCA had carried out its coordinating role. [20] It saw value in the CLER Report but, significantly:

... could not identify in the present arrangements or in those proposed by the CLER report that we as a nation had as yet achieved an acceptable management model for organised crime control. The review report took us down the track but its terms of reference did not encompass the role or contributions of the States and Territories. [21]

1.25 Its solution was to propose the establishment of a Standing Committee on Organised Crime and Criminal Intelligence (SCOCCI) as a replacement for the NCA Consultative Committee, a recommendation which was implemented when SCOCCI met for the first time in April 1996. This body was seen as a means of providing a truly national decision-making process and ensuring that the most effective elements of Australia's law enforcement resources were committed to countering organised crime. Members are the eight Australian Commissioners of Police, the Executive Member of CLEB, and the heads of the NCA, AUSTRAC, the Australian Customs Service (ACS), the Australian Taxation Office (ATO), the ABCI, the ASC, the NSW Crime Commission and the Queensland CJC. Its functions are to:

• recommend to the NCA Inter-Governmental Committee (IGC) priorities and resources to be applied to national projects;
• supervise NCA joint task forces, including post operational analyses and reports to the IGC;
• supervise co-ordination of the criminal intelligence system to ensure the full interchange of intelligence on projects of interest to the IGC; and
• ensure that the ABCI reaches its potential and has the capacity to respond to requests and directions of the IGC and SCOCCI.

1.26 The thrust of the Avery/Bingham Review's findings was to place priority on the co-ordinating role of the Authority by providing an effective management model for a national effort against organised crime. Its recommendation to involve relevant agency heads more directly in the NCA's management was seen as empowering the organisation since they have substantial authority to commit their agencies to joint projects with the NCA.

1.27 The PJC notes that all three reviews conducted since 1991 have found that there was a continuing role for the NCA. They each contributed suggestions to improve its effectiveness, the benefits of which were apparent to the PJC during its inquiry although, in the case of SCOCCI, these had not yet been fully realised.

ARE THE FACTORS WHICH LED TO THE NCA'S CREATION STILL RELEVANT?

The existence of organised crime

1.28 It is axiomatic that crime will exist while ever the combination of opportunity, profit and human frailty remain.

1.29 The PJC considered whether the size and nature of multi-jurisdictional organised crime is still of such magnitude as to warrant a National Crime Authority. Though it heard a variety of arguments regarding the precise form the Authority should take and whether the NCA or police forces should have responsibility for countering such crime, it received no evidence that complex, multi-jurisdictional, organised crime had ceased to exist or had lessened to such a degree that efforts to counteract it should be downgraded. Even the NCA's harshest critics conceded that.

1.30 To the contrary, the PJC is convinced that sophisticated, organised crime remains a viable business.

However, the nature of major and organised crime has changed. In the past ten years new criminal organisations and networks in Australia and in other countries, have come to notice. Known organisations and networks in Australia and in other countries have increased in size and power. Many criminal organisations have developed interests beyond their country of origin. Organisations and networks based in other countries are now represented in Australia or have links with Australian-based networks.

Australian law enforcement agencies are now investigating drug importations which can involve more than 100 kg of heroin or cocaine, or as much as 10 tonnes of hashish, in a single shipment. Major frauds detected in Australia can involve millions of dollars at a time. Previously unknown forms of criminal activity are being undertaken in more efficient ways, drawing upon international expertise and support. Australian law enforcement agencies have adapted their methods to new and emerging threats. [22]

1.31 This was one of the principal findings of CLER. It attributed a substantial growth in the power of organised criminal networks to the expansion of markets for illicit drugs and the consequent laundering of proceeds [23] and said:

During the past decade economic, political and technological changes have considerably altered the criminal environment domestically and internationally. Those changes have undermined the effectiveness of traditional law enforcement methods and increased the effectiveness and efficiency of major and organised crime organisations. They pose substantial challenges to law enforcement agencies. Known criminal organisations have become harder to investigate and other organisations are now coming to notice. [24]

1.32 In the light of work undertaken by law enforcement agencies to develop an understanding of the criminal environment, the CLER Report also drew a range of more specific conclusions. In summary these were:

• Organised crime in Australia is being affected by changes in the international criminal environment. It cannot by regarded as solely a local phenomenon.
• There are local criminal milieux which are cooperative networks, not hierarchies.
• There are a number of secret societies, at least some of whose members are active in organising and undertaking criminal activities.
• There are a number of criminal networks in Australia which are based upon common characteristics of their members (including those with a shared ethnic background as well as outlaw motorcycle gangs and paedophile networks).
• Evidence indicates that powerful overseas criminal groups are interested in establishing a presence in Australia.
• The cost of white collar crime (particularly major fraud) is steadily increasing.
• The continuation and growth of organised crime has been considerably assisted by corruption within law enforcement and other Government institutions. [25]

1.33 In November 1994 a Conference on Asian Organised Crime co-hosted by the NCA and AFP reached a number of conclusions, including that:

Organised crime is a major international phenomenon requiring a co-ordinated and dedicated international response.

and:

The 90s offers an environment of greater diversity, interactions and partnership between organised criminal groups and an environment of unprecedented mobility and internationality, of unprecedented variety and profitability and potential for power. [26]

1.34 The PJC also noted evidence presented by the AFP, concurring with the CLER Report, that changes in the criminal environment within the last ten years were in response to:

• the revolution in modern technology, particularly in the areas of communications and transport;
• the development of global markets associated with the deregulation of financial systems and the progressive removal of border controls;
• totalitarian regimes being replaced by nascent democracies with market orientated economies;
• the rapid increase in the availability of information about law enforcement methodologies and power; and
• the substantial increase in the economic power and political influence of organised criminal groups. [27]

1.35 Mr Peter Cleeland, a former Chairman of the PJC, gave evidence that:

... it is undoubtedly clear that the present situation on organised crime and drugs in Australia today is ... worse than it was when I first sat as a member of this Committee back in 1986-87. [28]

The need for a coordinated multi-jurisdictional response

1.36 The AFP put the view that:

The need for a coordinated approach against multijurisdictional and organised crime, and for the existence of an agency such as the NCA, is probably even greater today than it was when the NCA was created. [29]

1.37 Similar comments supporting the value of the NCA's multi-jurisdictional co-ordination role were received from others within the criminal justice arena, including the Commissioners of the South Australia Police [30] and the Western Australia Police Service [31] and the Commonwealth DPP who stated that:

... coordination is essential in large multijurisdictional investigations given the wide range of activities, investigations officers and investigating agencies involved. There is therefore a need for a coordinating agency with expertise in investigation techniques and well developed liaison and management skills to coordinate these investigations. [32]

1.38 Perhaps the most comprehensive support for this aspect of the NCA's role was contained in the submission prepared by the Queensland Police Service and forwarded to the PJC by the Queensland Minister for Police and Corrective Services and Minister for Racing:

... the need for a body such as the NCA is without question. As a federation, no one Australian government or law enforcement agency is capable of addressing criminal matters of national significance on their own, particularly inter-jurisdictional organised crime.

It was for this very reason the NCA was established and ... nothing, with respect to the composition of Australia's criminal environment, has changed to such a degree as to warrant its closure or downsizing. [33]

1.39 After noting the limitations placed upon Commonwealth agencies such as the AFP (restricted to investigating breaches of Commonwealth law) and upon State and Territory police (restricted to their geographical jurisdictions), the submission concluded that:

The NCA, however, is an extension of all participating agencies, allowing them to reach across barriers, both legislative and geographical. ... As a co-operative agency, charged with a co-ordinating role, the NCA can, particularly through its co-ordinated national task forces, meet the needs of all Australian jurisdictions, without offending the sovereignty of any of the participating agencies. [34]

1.40 The submission of the State Government of Victoria also drew attention to the benefits of the Authority's coordination role, making the distinction, however, that it:

... does not always involve the direct investigation of major crime. It is more appropriate for the NCA to adopt the role of facilitating collaboration and a mechanism for co-ordinating multi-State investigations, which are comprised of investigations by individual State/Territory law enforcement agencies. The NCA should only become involved in the investigation of major crime where it can directly `value add' to that investigation. The ability to `value add' to the investigative process should be the trigger for direct NCA involvement rather than the `value' of the goods, etc. involved in the crime itself. [35]

1.41 The Commissioner of the AFP, Mr Palmer, added another dimension to the Authority's coordination work. He put the view that the benefits of the NCA's coordinating role are greater than the relatively straightforward process of organising joint efforts:

... the NCA presents as an ideal catalyst for that coordination. It provides a properly managed and supported basis for cooperation, which either prevents or certainly greatly minimises the potential pitfalls of joint standing task forces - and we have seen some good examples of the pitfalls of those in recent times through, for example, the New South Wales royal commission - whilst allowing the identification of common targets, making sure that we are properly focused and not just simply out there chasing a wide range of undistinguished or unidentified problems, ... The NCA's umbrella coordination role ... puts on it an integrity check and a management oversight that, in an ordinary joint standing task force, would be difficult to achieve. [36]

1.42 The NCA's role in assisting Australian law enforcement to identify and counter organised crime groups was also viewed as essential. Assistant Commissioner Mott of the Western Australia Police Service stated that:

The NCA provides a capability to analyse intelligence and produce strategic assessments from which plans can be developed to deal with the activities of organised crime groups that threaten the safety and security of the Australian community. ... These projects could not have been successfully achieved by any one state jurisdiction acting alone, whereas the NCA with its multidisciplined and jurisdictional approach has been very successful in producing quality assessments which now form the basis on which law enforcement agencies in Australia are formulating their direction. [37]

The need for specialist expertise and powers

1.43 The NCA described itself as uniquely placed among law enforcement agencies to investigate organised crime because of a number of factors:

• its powers;
• the fact that it is not limited by state boundaries or confined to investigating breaches of Commonwealth law, though it is limited to investigating `relevant criminal activities';
• its credibility;
• its ability to coordinate investigations through joint task forces;
• the multi-disciplinary nature of its teams;
• its financial investigation expertise; and
• its ability to be proactive. [38]

1.44 Several of these points were reiterated by others. For instance the Queensland CJC submitted:

Organised crime is becoming increasingly complex and sophisticated, as are the methods used to conceal and dispose of related profits. It is the Commission's experience that a considerable depth of training and expertise is required to successfully investigate such activities. Such training and expertise are ordinarily not available among police ranks, where career advancement, with associated transfers and promotions, is usually more important than specialisation. The experience of the Commission, and other agencies such as the NCA, the NSW Crime Commission and indeed a number of overseas agencies, has demonstrated that a specialised, focused and multi-disciplined approach to complex investigations, is more successful than the traditional, single-disciplined, police approach. [39]

1.45 The Bar Association of Queensland was of the opinion that police services generally lack immediate access to the skills of specialists, do not have the resources to establish multi-disciplinary teams and already face major demands in satisfying the everyday needs of the community. It noted that traditional law enforcement agencies have been denied special compulsory powers:

It is considered unlikely that in the present climate in this country, where corruption and abuse of powers by Police services has been publicly exposed, that such powers will be granted to traditional agencies. [40]

1.46 It saw benefit in a permanent body such as the NCA which combines special powers with a continuity which enables the accumulation of experience and which would be lacking in ad hoc Commissions, and concluded that:

... there is a need for a body such as the Authority in the investigation of `Relevant Criminal Activity' ... provided that the activity is multi-jurisdictional in nature and cannot be effectively investigated by normal Police means and through normal Police powers. [41]

1.47 Mr Dearden, President of the Queensland Council for Civil Liberties, who was reticent about the intrusive powers of the NCA, gave evidence that:

... there are some methods and organisations involved in crime, that are very difficult to fight in any way other than with an overarching organisation like the NCA. I accept that there is an argument for the strictly controlled use of coercive powers by an organisation like the NCA. [42]

1.48 Perhaps the final word on this subject should be left to Mr Costigan, a proponent of the Authority's establishment, who was of the opinion that:

Nothing has happened in the last 13 years to disturb my view that the attack on organised crime will come to nought unless an effective mechanism for following the money trail is maintained and provided to a body such as the NCA. [43]

THE CASE IN FAVOUR OF CURRENT ARRANGEMENTS

1.49 Support for the NCA's continuation was expressed by many witnesses during the PJC's inquiry, particularly and significantly by those within the Australian law enforcement community. The Western Australia Police Commissioner, in whose State NCA budget restrictions have been substantial, stated that:

The need for a body such as the Authority is vital. ... the need is now more significant than ever. Any move towards closure or downsizing is strongly opposed by WAPS [Western Australia Police Service]. [44]

This view was echoed in a submission from the Western Australian Minister for Police, the Hon. John Day, MLA. [45]

1.50 The South Australia Police regarded the NCA as a `formidable crime fighting body', arguing that its special powers and ability to facilitate the investigation of corruption and sophisticated criminal activity on a national basis warrant its retention. [46] In a similar vein, the AFP gave evidence that there is no serious questioning of the need for the NCA's special powers and that Australian law enforcement would be significantly disadvantaged if those powers were not available:

Without the work of the NCA, multijurisdictional and organised crime would once again take maximum advantage of the fragmented nature of Australia's law enforcement system. [47]

1.51 Mr Adrien Whiddett, Deputy Commissioner of the AFP added that:

... the relationship between jurisdictions has become better and is really a by-product of the NCA's powers and the ability [of the NCA to] pull together the separate jurisdictions. [48]

1.52 The Queensland Police Service was also strong in its support for the Authority, particularly its use of coordinated national task forces, which it believes is `the most appropriate way to address organised criminal activity at a national level'. [49] Similar strong support was voiced by the Queensland CJC which described the NCA's coordination as `crucial'. [50]

1.53 Acting Assistant Commissioner Lambert of the Victoria Police said:

We see them as being a very important addition to law enforcement in this state and interstate as well. ... We believe that their contribution in relation to strategic assessments, the analysis of criminal information and the distribution of that information, which of course is not bound by state borders, is very vital to successful investigations involving interstate crime. [51]

1.54 The NSW Minister for Police submitted that the NCA has a significant role in combating organised crime and that its methods and practices are appropriate. Its coercive powers and its Strategic Intelligence Assessments were viewed as valuable. [52] The State Government of Victoria, [53] the Commonwealth DPP, [54] and the ACT Attorney-General also endorsed its role. [55]

1.55 In addition, support for the NCA was also given by the Queensland Bar Association, [56] the ABCI, [57] the then Executive Member of CLEB, [58] the ATO, [59] AUSTRAC, [60] the Commonwealth Attorney-General's Department, [61] and the Director of the Department of Public Prosecutions in South Australia. [62]

1.56 A number of individuals expressed support for the NCA and its work. They included noted author and researcher on organised crime, Mr Bob Bottom, [63] the Hon. Michael Rann MP, [64] and Mr Peter Cleeland, a former Chair of the PJC. [65] Mr Tim Sage, a former Regional Director of the NCA, had no doubt as to the need for a body such as the NCA, describing its coercive powers as `absolutely essential to the investigation of organised crime matters'. [66]

1.57 The case for the retention of the Authority was summarised by the National Secretary of the AFPA, who cited its advantages to Australian law enforcement as its:

• Australia-wide legislative underpinning,
• coercive powers,
• departure from the traditional and restrictive police hierarchy, and
• multi-disciplinary and multi-jurisdictional task forces. [67]

THE CASE AGAINST CURRENT ARRANGEMENTS

1.58 Support for the continuation of the NCA, while a strongly held position by most witnesses to the PJC's inquiry, was not unanimous. It is particularly noteworthy that several of the witnesses, in criticising the NCA, highlighted the judgements (and associated disparaging comments) of a trial judge about the NCA, which have since been rejected by the Victorian Court of Appeal.

1.59 Mr John Elliott, the subject of an NCA investigation, was an outspoken critic of the Authority:

... there is no role in a decent, open and civilised society for the National Crime Authority as we know it. ... In my view it serves no good or honourable purpose. It should be disbanded forthwith. The hundreds of millions of taxpayers' dollars saved should be re-directed at strengthening the Federal police, the various State police forces, coastal surveillance activities and if necessary the resources of the ASC (the body responsible for regulating corporate behaviour) and other regulatory bodies. [68]

1.60 Mr Elliott did not seek to argue that the crime which the NCA was established to investigate no longer exists, but rather he recommended a different approach, saying that:

... there is not one practical function of the NCA that cannot be undertaken by an already established institution of the state. I hear you talk about drugs, ... I cannot see why the established police forces of our state, which are experienced in chasing criminal action, would not be better placed to do it. [69]

Areas in which he believed there may be a legitimate role for the NCA were in the investigation of official corruption and the conduct of police forces. [70]

1.61 The reasons put forward in support of his call for abolition were several:

• that the NCA does not and cannot be made to account for its activities; [71]
• that it does not always act honestly or legally; [72]
• that it wasted public money; [73]
• that it had been used for political purposes; [74] and
• that it constitutes a threat to civil liberties. [75]

1.62 Mr Peter Scanlon, another subject of the same NCA investigation as Mr Elliott, was similarly scathing, describing it as `an organisation that is intimidating, untrustworthy, deceitful and has no place in a proper democratic society'. [76] He gave evidence that he had been treated unfairly and incompetently by the NCA and maintained that, with its current culture, level of competency, integrity and people the NCA had lost the right to exist. [77] The general tenor of these views also found support from the Victorian Premier, Mr Kennett, a vocal critic of the Authority, [78] whose opinions were not supported by the views expressed in the submission to the PJC of the State Government of Victoria. [79]

1.63 The New South Wales Council for Civil Liberties put the case that the NCA investigation of John Elliott and his co-accused `revealed the high-handed methods employed in its investigations'. [80] It supported the dismantling of the NCA in its present form and called for a full public inquiry since:

... a body equipped with the powers of the NCA continues to violate the rights of every citizen of this nation and at [the] same time have minimal success. [81]

Council representative, Mr John Marsden, conceded that the PJC's inquiry met the Council's call for a full public inquiry.

1.64 Another critic of the NCA, Mr T. C. Boxall, submitted that it should be abolished and the funds saved should be given to the AFP. He stated that:

... the NCA is a most expensive layer of bureaucracy, overlaying our established police services. More importantly, defence barristers are able too easily to convince the Courts that as NCA methods of obtaining evidence are unfair, improper and unlawful, the NCA cannot gain the convictions that ought to be obtained. [82]

1.65 The Police Federation of Australia and New Zealand (PFANZ) submitted that the NCA should not be the ninth police jurisdiction in Australia and noted that:

The selective investigations by the NCA either duplicate existing police jurisdictional investigations and/or suffer from a lack of resources compared to those of police jurisdictions. The NCA's special powers are, therefore, an inefficient use of a valuable crime fighting tool. [83]

1.66 Its submission cites the President of the Police Association of NSW as having put the view that:

Given the funding restrictions that are facing law enforcement agencies, and in particular the Australian Federal Police, I believe it may be time to reconsider the number of policing agencies that are now operating in Australia. On face value it would appear that the NCA duplicates many of the functions already carried out by the Australian Federal Police and the State Police bodies. While acknowledging the fine work of the NCA staff, I believe it is important to remember that for every additional law enforcement agency, substantial public funds are utilised to provide administrative and logistical resources. Rather than compete between agencies for different references, or try to establish multiple working relationships, would the public of Australia not be better served by a simple model of state police and federal police? Surely an effective working relationship is able to be maintained between these agencies without the reliance on an additional body? [84]

1.67 PFANZ's submission called for:

• the operational arm of the NCA to be devolved to State, Territory and Federal police to work on national trans-jurisdictional investigations;
• the NCA's special powers to be expanded to include major crime where the reference of such powers would assist multi-jurisdictional investigations;
• the coercive powers arm of the NCA to be transferred to selected judicial elements in each police jurisdiction; and
• the IGC to be widened to include all Australian Police Commissioners. [85]

1.68 While the AFPA saw the NCA as bringing several advantages to Australian law enforcement, its former National Secretary, Mr Chris Eaton, stated that `the real trigger for NCA action remains a political one'. [86] The Association's submission noted that, with the creation of the NCA:

For the first time in this country a formal process of political referral, implying political consideration, determined what was and was not the work of a significant law enforcement body. [87]

1.69 The AFPA's perspective was that there needed to be a coherent national strategy for a hierarchy of law enforcement. State boundaries were viewed as impeding only police and not criminals. Its suggested solution echoed the PFANZ recommendations. It recommended development of the NCA as a precursor to a national criminal investigation resource where police could work on national transjurisdictional investigations that are not necessarily related to organised crime. It recommended that the NCA's coercive powers be transferred to the judicial elements of all jurisdictions so law enforcement agencies could access them and non-police staff of the NCA be attached to the AFP, bringing their talents to a larger and more widely-tasked organisation and providing economies of scale. [88]

1.70 A group of witnesses saw benefit in retaining a body such as the NCA to counter organised crime but saw the need for a shift in its focus.

1.71 Mr Greg Cusack QC, a former member of the NCA, expressed the view that it is now controlled by the Police Commissioners rather than being independent, and that if it continues to do the type of work that was referred to in its 1995-96 annual report, it should be abolished because it is `just another police force' and 'it is not addressing organised crime ... As I see the operations, most of them could have been done by police forces'. [89]

1.72 Mr Costigan also indicated his belief that `the NCA has taken on more of the characteristics of a police force'. [90] His concern, however, related to the concept of the NCA arresting people and, coincidentally, gaining media attention in such circumstances.

Quite frankly, there are, in my view, no occasions upon which an arrest should be made by an officer of the National Crime Authority and no occasion on which a National Crime Authority lawyer should be seen in court or described as prosecuting an alleged offender. [91]

1.73 He argued that the NCA, with its substantial numbers of police, had become a super police force and had indirectly provided its members with the special powers which were not granted to existing police forces. [92] While he believed that changes should be made, he supported the continuation of the Authority.

1.74 The DPP in New South Wales questioned whether it was necessary or appropriate for a body such as the Authority to function alongside police and other specialist agencies, as it could be argued that the present arrangements create undesirable overlaps and duplication of resources and effort. [93] A similar point was made by the Chief Minister of the Northern Territory who, while noting the success of recent NCA operations, raised the apparent duplication of activities between the NCA and police forces. He echoed the comments of Mr Cusack when he cited arrest information in the NCA's Annual Report for 1995-96 which, he believed, covered work that could have been dealt with by police. He also referred to apparent duplication with the ABCI, before stating:

I am particularly concerned to ensure that the direct law enforcement work of the NCA is focussed on only that work which cannot be undertaken by the Australian Federal Police or a state or territory police force. [94]

1.75 Evidence given by Mr David Grace, QC, Chairman of the Criminal Law Section of the Law Institute of Victoria, also related to a duplication of functions between the NCA and police to the extent of concurrent investigations by agencies. He put the view that, if the PJC were to consider a future without the NCA, its functions could be adequately performed by State and Federal Police with some additional powers. [95]

1.76 The South Australian Bar Association raised the need for NCA independence from police agencies and the belief that as a national body it should not be used by State police for their own ends. It cited information that appears to support the argument that some investigative work conducted by the NCA was work which should be undertaken by State police. [96]

1.77 In view of this the PJC noted with interest evidence from Acting Assistant Commissioner Lambert of the Victoria Police who spoke of the way in which the NCA could add value to investigations. He referred to the strategic assessments done by the NCA:

They [the NCA] have an ability to deal with that sort of information which is not readily available to us. It is available in some of the squads, but quite often you cannot get the major fraud group, for instance, to do financial analysis for you at the drop of a hat, because of their workload. But you can get the National Crime Authority to do it for you. So there is certainly a role there in value adding to our investigations. [97]

1.78 Further, a later section of this chapter dealing with NCA Effectiveness and Efficiency refers to evidence which, on one interpretation, indicates that work done by the NCA in Western Australia could have been, and currently is, being undertaken by the State police. This evidence suggests that, in some cases, the NCA may have been acting more as a supplement to State law enforcement, rather than as a national resource directed at national priorities.

THE NCA'S PERFORMANCE

1.79 In undertaking this comprehensive evaluation, the PJC's terms of reference require it to consider not only evidence regarding the need for the NCA, but also how effectively and efficiently it performed. In colloquial terms: whether it is giving sufficiently good value for money to justify its continued existence. Unfortunately, the Authority, like many other agencies, does not collect and publish a comprehensive set of performance information. As a result, the PJC, like its predecessors and other commentators on the NCA, has been unable to undertake a comprehensive assessment of NCA performance which is based on consistent, useful information on performance.

1.80 Fortunately, there is evidence available which relates directly to the NCA's effectiveness. As a result, the PJC has been able to assess certain aspects of the NCA's work and form a view as to its effectiveness in those significant areas.

1.81 In the following sections, the PJC examines the somewhat vexed issue of performance assessment in law enforcement before addressing its application to the NCA.

Performance assessment in law enforcement

1.82 The NCA is not unique among law enforcement agencies in finding performance measurement difficult. Dr Stephen James, of the Criminology Department in the University of Melbourne, who co-wrote with Dr Adam Sutton an evaluation of Australian drug law enforcement, gave evidence that:

... one of the strong senses we got from all law enforcement agencies around the country was that they were completely unable to measure their own effectiveness. Partly, we would argue that was on the basis of some real problems in measurement, but we do not think the measurement problem is insuperable by any means. Law enforcement agencies have a track record in this area of not actually being interested in measurement. ... We were concerned very much that not only were they unable to do it but they seemed unwilling to do it. [98]

1.83 Law enforcement is a complex field of endeavour. In attempting to reduce its complexities to a handful of informative and easily collected performance data, crude quantitative measures of performance have often been used, for instance: the number of arrests. While this is easily measured and compared, it is questionable how useful it is to measure performance. Does it indicate how well a law enforcement agency investigates crime, or how much crime there is? Simple counting of the number of arrests would include arrests where the suspects ultimately go free because they are innocent and/or the case against them is not strong enough to prove their guilt.

1.84 Recognition that arrest rates alone do not prove effectiveness has led some to count convictions and length of sentences. While it is true that the standard of investigative work undertaken by a law enforcement agency is a significant factor in the outcome of criminal proceedings, this approach fails to take into account the fact that the law enforcement agency cannot be totally responsible for the outcome of a criminal trial due to the range of factors beyond its control which influence the outcome, for example, the composition of the jury and the performance of legal representatives for the defendant and the prosecution. On the latter point, it is worth noting that, in some significant cases, the resources available to defend a case may be well beyond those of the publicly-funded prosecution.

1.85 In the search for law enforcement performance measures, some have opted to use the crime rate; the amount of reported crime in a given period, compared to the previous period. It is widely recognised, however, that the crime rate may vary in response to a complex set of social and economic factors which law enforcement agencies do not control. As a result the crime rate is not a true measure of performance.

1.86 In considering the performance of agencies such as the NCA, it would be a matter of concern if there were no occasional failures. A hundred percent success rate might suggest that it was pursuing only the easy cases rather than the difficult and resource-intensive ones.

1.87 The majority of material written on performance assessment for law enforcement relates to community policing. In the United Kingdom, police agencies are regularly compared with their counterparts in relation to a number of performance measures such as their response rate to calls. In Australia, the Council of Australian Governments has worked with police services to produce a range of performance measures, however, these pertain to state and territory policing.

1.88 Another law enforcement agency with national responsibilities, the AFP, has published a range of new performance indicators. [99] In a significant departure from the simple statistical processing measures of performance referred to earlier, these are primarily qualitative rather than quantitative. The latest NCA Corporate Plan, referred to in the section on NCA performance reporting, also contains a range of `Key Performance Information' which relate to quality as well as quantity.

Some issues associated with assessing NCA performance

1.89 The nature of the NCA's work brings certain difficulties to the task of performance assessment. These are discussed below:

(a) Time

1.90 NCA operations can take a considerable time given the often complex nature of the criminal activities involved. So too can the progress of cases through the criminal justice system. This means that results can occur years after work commences on an operation. Any simple equation of NCA resource inputs and enforcement effort in relation to NCA outcomes in the same year is bound to be flawed as long lead times mean that results will often occur in a later reporting period to inputs. Mr Cleeland, a former Chairman of the PJC, referred in evidence to this time factor by quoting Professor Jim Munro of the University of West Florida:

People in the political arena tend to have a reasonably short term perspective of the efficiency and effectiveness of crime fighting units. You want to be able to report to your constituents that we funded X organisation and it was able to make an impact. ... Unfortunately, a lot of the impact of expenditure for organisations like the NCA is cumulative and so five, six or seven years down the track you are likely to find a larger impact than you find in the short term. It is almost impossible to effectively disrupt organised crime in one, two or three years. [100]

(b) Unreported crime

1.91 Unlike State and Territory police forces, the NCA does not generally investigate crime reported by the public. Some agencies use their `clear up' rate as a measure of performance, by reporting on the percentage of reported crime which they clear up by various means, including by arresting the alleged offender. In the NCA's case, much of the crime is not reported by members of the public and details of the full scale of criminal activity involved are commonly only revealed by lengthy intelligence work.

1.92 One commentator attempting to evaluate the NCA stated that:

Any amount of statistics or other data relating to the NCA are rendered meaningless unless we know the overall size and nature of organised crime, whether alternative strategies would have produced superior results, and, of course, whether we could agree on the meaning of the term `organised crime'. [101]

1.93 Of course, given the nature of organised crime, its extent can never be known absolutely. Success depends on secrecy, at best the avoidance of detection and at worst the avoidance of evidence which would prove guilt. While estimates of crime have been and will continue to be made of the amount of illegal drugs imported to Australia, of the percentage of illegal drugs seized by law enforcement agencies, of the amount of fraud against the Commonwealth and of the amount of profits to organised crime groups; these can only ever be estimates.

1.94 The Initial Evaluation of the NCA undertaken in 1988 found that :

Estimates of the turnover or the profits to be obtained in illegal markets in Australia and of the extent of revenue and corporate crime are at present little better than guesses. [102]

1.95 It called for further work to be done in this regard as the lack of a statistical base makes it impossible to say whether the NCA's work has led to a discernible diminution in the extent of criminal activity. It made the significant point that:

... even if there were such a diminution measurable in quantitative terms, it would still be difficult to isolate the impact of the National Crime Authority from the impact of the other changes that have taken place in Australian law enforcement ... [103]

(c) Secrecy

1.96 The NCA, like other law enforcement agencies, has an interest in keeping certain information confidential as its release may affect the outcome of operations and court proceedings. Section 51 of the NCA Act makes it an offence for NCA members and staff to divulge information acquired by them in the performance of their duties except as required by the Act or in the performance of those duties.

1.97 In evidence, the CJC made the point that the NCA's work, as well as being complex and long term, requires a high degree of confidentiality, so it may be difficult to reveal openly its achievements and level of performance. [104] These restrictions will affect the type of information available for performance reporting but should not necessarily prevent meaningful performance reporting being made.

1.98 It is important that assessments of performance are not undertaken completely `in-house'. As noted by Michael Bersten:

... there is little cause for confidence in an evaluation which is not open and independent from the agencies/initiatives in the program itself or at least subject to some external review. Practically, this requires consideration being given to evaluation by at least those bodies with an established role in external evaluation of the public sector such as parliamentary committees and the audit agencies. [105]

1.99 If necessary, reporting on performance to the IGC and this Committee could cover matters which cannot be divulged publicly.

(d) Clarity of role

1.100 There have also been conflicting views put as to what the role of the NCA is. If its role is ill-defined, assessment of its performance becomes difficult. The question of whether the NCA's role requires further definition is addressed in the next chapter.

(e) Distinguishing the NCA's work

1.101 The key to much of the NCA's work is cooperation. As a result, it can sometimes be difficult to ascribe a particular outcome solely to the NCA as partner agencies have often played a significant role in achieving the result in question.

(f) The need for quality as well as quantity

1.102 The Authority is required by section 62 of its Act to report annually on the extent to which its investigations have resulted in the prosecution of people in that year. The NCA responds to this requirement by publishing statistics regarding the number of people charged, the nature of the charges and the results of court proceedings.

1.103 The PJC noted evidence regarding the fact that, in its early days when subject to a sunset clause, the NCA was eager to prove its success. Tangible results such as numbers of arrests and convictions were publicised. A remnant of this can still be seen in NCA annual reports which contain a cumulative list of the numbers of people charged and the number of charges for all NCA matters since its inception, even where the references are no longer active. The PJC is unaware of any other agency which keeps such tallies.

1.104 In the absence of much other regularly published information dealing with results, this has been interpreted by some as giving evidence of the NCA's effectiveness. The PJC is strongly of the opinion that this simplistic, quantitative approach cannot give a true insight into NCA effectiveness.

1.105 As far back as 1988, the PJC in its Initial Evaluation, noted that:

The success or failure of the Authority in meeting its objectives is not susceptible to evaluation in quantitative terms. ... as the Williams, Stewart and Costigan Royal Commissions all stressed, in the area of organised crime it is the significance of the persons convicted rather than the mere number of convictions that is of importance. Indeed, as the Williams Royal Commission noted in the context of drug law enforcement, emphasis on mere numbers of convictions may be positively counter-productive, leading to a concentration on users or minor pushers at the expense of any attempt to `move up the hierarchy'. [106]

1.106 Although some witnesses before the PJC based their view of NCA effectiveness on counting of arrest and conviction figures contained in the NCA's annual report, there was widespread recognition that the numbers of arrests and convictions alone cannot provide a useful picture of NCA performance. The PJC, therefore, has some difficulty in accepting at face value the evidence submitted by those witnesses who underpin their arguments of NCA effectiveness solely with statistical analysis.

1.107 Dr James, of the University of Melbourne's Criminology Department, stated in reference to his work on drug law enforcement that:

... the problem with law enforcement is that their measures of output, if you like, are activity indicators; they are not impact indicators. Seizures and arrests are great measures of how hard they may be working or how much they are stumbling over, but they tell us little if anything about the impact of that work. ... a narrow band of quantitative indicators is a lousy way to measure the effectiveness of such a complex enterprise as national co-ordinated drug law enforcement. [107]

1.108 Mr Malcolm Gray of the South Australian Bar Association, a former NCA member, was of the opinion that:

This massive list of large and minor offences that appears in the National Crime Authority's report gives no indication in any way how that might have affected any particular area of criminal activity. [108]

1.109 A similar view was expressed by Mr Marshall Irwin of the Bar Association of Queensland who added:

... the best performance indicator is perhaps the level of person who is being investigated and being brought to justice. It would be, I think, contrary to the NCA's charter if all they were doing was, for example, arresting low-level drug dealers, because that is something that really is the function of other police services in Australia. Therefore, one mechanism of evaluating the Authority can be to look at just how significant the people are that they are investigating and what success they are having there. [109]

He also suggested examining whether the NCA was responsible for significant pecuniary penalty orders and taxation assessments as part of its effectiveness.

1.110 Mr Greg Cusack, another former Member of the NCA, was also of the opinion that the number of prosecutions was not as important as their significance, and suggested other performance measures:

... the indicators are really ... cooperation they are giving to other police forces and the major operations they have carried out. They should not say that, because they have cooperated with another police force, they are responsible for 300 arrests or someone else has been fined $25 or $1,000 or what have you. [110]

1.111 The CJC concurred that measuring success through the use of arrest figures is of limited value as it is confined to quantity rather than quality. Its view was that statistics do not reflect an investigation's quality or complexity, nor do they indicate the disruptive or preventative impact the investigations may have on organised crime. [111]

1.112 An example of the drawbacks in using conviction information to assess performance was given to the PJC by Mr David Grace, of the Law Institute of Victoria:

There have been a lot of comments, both by politicians and in the media, about the rate of success of the NCA. I think it is important to note that the rate of convictions or the rate of recovery of profits of crime are not the only determiners of the success of a particular organisation, ... Convictions may not occur due to a variety of reasons. We saw in the Elliott case technical legal rulings which certainly had the effect of avoiding conviction for anyone involved in that case. It gives you an example of the type of situation that can arise in the course of a criminal trial where, notwithstanding what might have been a very effective investigation, there may be no conviction. [112]

1.113 In the absence of easily accessible qualitative information, some people attempted to assess the significance of the person convicted by the nature of their sentence, which led to questioning of whether the NCA was actually targeting the organisers of crime or lower level criminals. While it is to be expected that those people convicted of serious crimes would generally receive severe penalties, the point has already been made that a range of factors in addition to the quality of the NCA's brief of evidence can affect whether someone is convicted and, if they are, what sentence they receive. It is also worth noting that, while investigating organised crime groups it is not uncommon for other, perhaps less serious crimes, to be discovered. The NCA, like other law enforcement agencies, has a duty to pursue these, so that not all matters referred by it to a prosecuting authority will be more serious ones.

1.114 The NCA has, on a number of occasions, referred to the shortcomings inherent in simple quantitative data and to the complexities of measuring its performance:

The arrest and conviction of individual criminals is no guarantee that the targeted organised criminal activity has been stopped, reduced or displaced. The criminal organisations may continue the illegal activity with a new recruit and it is a matter for judgement as to how those convictions affect the overall level or impact of organised crime. By contrast, an organised criminal group may be effectively disrupted without major arrests and convictions, by a variety of means, including the use of exposure and alerting the public to the prevalence of types of organised crime; the introduction of new investigative or deterrent strategies; recommending law reform designed to reduce the profitability of particular criminal activity; and the threat of arrest which results from intensive investigative activity. [113]

1.115 The PJC believes that reliance on arrest and conviction figures for assessing performance would give a simplistic picture of the NCA's work which is inadequate, and at times, misleading. As the NCA's acknowledged role is to counteract those people who organise crime, there is a justifiable expectation that its targets are the people with the brains, power and/or money behind significant criminal enterprises. As highlighted in the quote above, their activities may be curtailed without an arrest or conviction being obtained. Conversely, they may be convicted, but the level of disruption to their enterprise may not be reflected in the nature of their sentence. In another scenario, they may be arrested and convicted, but the level of disruption to their own or their organisation's illegal activities may be minimal. The extent to which convictions are a useful measure of NCA performance is debatable, since there are so many factors beyond the control of the NCA which may affect whether a conviction is obtained.

1.116 The PJC is firmly of the view that it is the impact of the NCA's work which needs to be assessed through measures of quality as well as quantity.

NCA performance reporting

1.117 For some organisations, it would be possible to make judgements on their efficiency and effectiveness by analysis of the performance data reported in annual reports and their aspirations as outlined in corporate plans. Although recent NCA corporate plans have included a range of performance indicators, reporting of performance has been limited, with little obvious, direct nexus between those indicators and NCA annual reports.

1.118 While it is true that the NCA's annual reports address the work undertaken in a given year, these consist of performance reporting in its broadest sense. The PJC, in its December 1996 Report Examination of the Annual Report for 1994-95 of the National Crime Authority, commented that the performance information contained in the NCA's annual reports is not easily translated into an informed judgement about how efficiently and effectively the NCA had performed its role. [114]

1.119 The PJC receives valuable quarterly operational reports from the Authority which contain considerable detail and give an indication of the nature of work being undertaken by the NCA. However, given the classified nature of the reports, the PJC is unable to cite their contents in this evaluation or in any other public forum. The PJC makes the point, however, that some of the information contained therein, including resource usage for each matter, could be useful material for more public performance reporting.

1.120 The PJC is firmly of the view that consideration of the organisation's effectiveness and efficiency would be improved by the adoption of a comprehensive range of performance measures, to be reported on regularly, thus allowing a picture of performance to be developed over time and enable comparisons to be made. For instance, there is little data available on the efficiency of the NCA. In its 1996-97 Annual Report the Authority referred to its centralisation of accounts processing and major purchasing functions to improve efficiency. [115] The reader assumes that greater efficiency is the result, but sustained, regular reporting against specific efficiency measures would allow an informed judgement to be made.

1.121 Mr Broome, in his Chairperson's Report contained in the NCA's 1995-96 Annual Report, wrote that:

In the coming year the NCA will be undertaking a review of its existing performance measures, as well as its statistical collection programs and processes and that may result in some changes in the way the NCA reports its results in future years. [116]

1.122 The PJC was pleased to note evidence of this review in the Authority's Corporate Plan for July 1997 - June 2000 which contained new fields of performance information.

1.123 The PJC is also, however, aware of a series of NCA Corporate Plans prior to this one which contained both strategies and performance measures or indicators. Unfortunately the PJC is unaware of any reporting on those indicators. Even the NCA's most recent Annual Report, for the 1996-97 financial year, while including the objectives and strategies contained in the Authority's 1993-96 Corporate Plan, avoided any direct reference to the performance indicators it devised to test how well those objectives and strategies were achieved and implemented.

1.124 The PJC understands the difficulties associated with defining and reporting against meaningful and practical measures of NCA effectiveness and efficiency and would have welcomed evidence that this process, though far from complete, had begun. The PJC would be concerned if, after publishing performance indicators in successive Corporate Plans, those indicators had not been used to assess performance.

1.125 In the Chairperson's Report of the NCA's 1995-96 Annual Report, the inevitable public focus on arrests and charges was noted and reference made to the need for other, qualitative measures of success. Having made this significant point, however, those very statistics were used to comment on NCA performance. [117] The PJC heard similar use of arrest statistics to measure performance by Mr Broome during its hearings. [118] Yet as early as 1991 the then Chairman of the NCA noted that:

Law enforcement agencies have in the past evaluated efficiency and effectiveness by the number of arrests, convictions, drug and asset seizures and the crime clear-up rate. For agencies or individual operational units charged with counteracting organised crime and reducing its impact on the community, this simple statistical approach is at best inadequate and at worst, misleading. In the absence of other stated measures, the NCA too has been judged on such criteria, which give little indication of its real performance and perhaps more importantly, provide little or no indication of whether the problem of organised crime is actually becoming better or worse. [119]

1.126 The NCA has been vocal in its argument that such statistics are not a good way to assess performance but it is yet to report against alternatives. The PJC is convinced that performance measurement for the NCA is necessary and achievable.

1.127 The PJC is concerned at the continued delay in developing regular reporting against an adequate range of performance measures. It has noted and endorsed the NCA's comments over a period of time regarding the inadequacy of simple statistical reporting and the complexity of assessing NCA performance. However, it believes that the time has come to do more than discuss the complexity of performance measurement. Though the NCA's primary reporting is to the IGC and the PJC, it is in the NCA's interests to give the public a clearer idea of how well it is working.

1.128 The PJC notes the difficulties inherent in assessing the performance of law enforcement agencies. It believes that, given the significance of the NCA to Australian law enforcement and the necessity for the NCA to be accountable to the Australian community, it should take a lead in reporting its achievements against innovative performance measures for those aspects of law enforcement which have traditionally been difficult to assess.

1.129 The NCA Corporate Plan for 1997-2000 contains a range of new `Key Performance Information' which represent a general improvement over its previous published work in this field. The PJC looks forward to the latest NCA Corporate Plan being a catalyst for useful, regular reporting on efficiency and effectiveness using the 'Key Performance Information' in that Plan as its basis. The PJC expects that future NCA annual reports will compare the NCA's actual performance against its published performance indicators.

Recommendation 1: That the National Crime Authority commence regular reporting on a comprehensive range of performance measures so that the PJC and the community will be better able to assess its performance.

Effectiveness and efficiency

1.130 The PJC's terms of reference for this inquiry specify that it will address the effectiveness and efficiency of the Authority. In undertaking its evaluation the PJC referred to generally accepted definitions of these terms:

Effectiveness defines the extent to which the outcomes of an activity are achieving stated objectives.

Efficiency relates to minimising inputs for a given level of outputs or, conversely, maximising outputs for a given level of inputs. [120]

Effectiveness

1.131 In considering the NCA's effectiveness the PJC referred, in particular, to sections 11, 12 and 17 of the NCA Act 1984, which describe the Authority's work as to:

• collect, analyse and disseminate criminal information and intelligence relating to relevant criminal activities;
• investigate matters relating to relevant criminal activities;
• arrange for the establishment of task forces and coordinate investigations by task forces;
• make recommendations for reform of the law, administrative practices and administration of the courts in relation to trials of relevant offences; and
• as far as practicable, work in cooperation with other law enforcement agencies in performing its functions.

1.132 There was little evidence submitted which suggested that the NCA was not effective. Messrs Elliott and Scanlon put the view to the PJC that the Authority's pursuit of them was unwarranted and ineffective. This view relies on their claims of innocence and the fact that the prosecution case against them was overturned, leading to their acquittal. The PJC notes that subsequent consideration by the Victorian Court of Appeal led to a rejection of the judge's reasoning on points of law.

1.133 Section 60(1) of the NCA Act enables the Authority to hold sittings in public to inform the public of or receive submissions relating to the general conduct of its operations. Mr John Marsden, President of the New South Wales Council for Civil Liberties, submitted that:

The NCA's contributions to any law reform objectives have been minimal. We have seen even less in the education of the public in relation to methods connected with organised crime. This is unacceptable. [121]

1.134 The Victorian DPP, Mr Geoffrey Flatman QC, referred to specific problems his office has had with the NCA's work. He noted the complex nature of the matters investigated but highlighted problems with:

• the recording and handling of seized property;
• disclosure of all relevant material to the prosecutors;
• responses to subpoenas served by the Defence on the NCA; and
• ongoing support for briefs when accepted by his office.

1.135 Mr Flatman referred to tension between his office and the NCA in relation to a number of briefs and the fact that the preparation of some briefs could have been improved. Most interesting, perhaps, from the PJC's point of view, was his statement:

... the NCA could benefit by the injection of additional expertise and resources in terms of its investigation staff and in-house lawyers. ... two things ... are important ... The first is that the NCA accept that such problems exist. The second is that they address the problems ... I have no doubt that they should move in the direction of staff training and staff development together with the provision of appropriate infrastructure. [122]

1.136 The PJC notes that the issues raised by the DPP can directly impact upon how effective the NCA is as well as its efficiency. Appropriate support to those prosecuting cases resulting from its investigations is vital. The PJC notes with concern the inference in Mr Flatman's evidence that, though problems exist, they are not necessarily recognised and dealt with appropriately. Notwithstanding these views, Mr Flatman stated that:

I believe the NCA can be an effective law enforcement body. I think that this effectiveness has been demonstrated in a number of matters not just in Victoria but elsewhere. [123]

1.137 By contrast, the Queensland DPP, Mr Miller QC, stated that he had not one adverse comment to make regarding the Queensland operations of the NCA and that the NCA in that state could not be improved upon. [124] Mr Rutledge, from that office, referred to the very high quality of NCA investigations and the high quality of its briefs. [125] Mr Marshall Irwin, of the Bar Association of Queensland, likewise noted that the quality of briefs put together by the Authority was extremely high. [126] To what extent this disparity of views between Victoria and Queensland is influenced by the expertise of NCA staff in different States, the differing nature of the cases and/or the expectations of the prosecutors, the PJC is unable to determine.

1.138 The PJC received evidence from a range of sources regarding the NCA's success in disrupting the activities of major crime groups. In a hearing before the PJC, Mr Greg Melick, a Member of the NCA, gave evidence that:

We know from our intelligence and hearing programs that we have significantly disrupted some of the organisations that we are investigating ... [127]

1.139 Mr Norman Raeburn, Deputy Secretary of the Commonwealth Attorney-General's Department, was of the opinion that the degree of disruption caused to organised crime as a consequence of NCA activities was important in considering NCA performance and that the degree of disruption is significantly greater than some of the lists of penalties in the NCA annual report might indicate. [128] The Commissioner of the AFP, Mr Mick Palmer, was of the view that the NCA was very efficient and effective and was a critical player in the Australian law enforcement matrix. He stated that:

I think the NCA really has been extremely successful in a number of operations in recent years in disrupting or dismantling clearly organised international criminal syndicates. I think Australian policing has been more effective in dealing with that in recent times than ever before. [129]

1.140 Mr Robert McDonald, General Manager of the AFP's Eastern Region, also referred to the NCA's performance, particularly in light of attempts to assess this on the basis of conviction figures in NCA annual reports:

... it could be that in the strategies in building up to identify and address the Mr Bigs, you do take a number of the smaller players out. They will not always attract heavy penalties ... but it is from criminal intelligence that you gather by carrying out those arrests that you are continually building up to being able to identify and attack the so-called Mr Bigs. [130]

1.141 He referred to a case where information regarding money laundering, originally from the NCA, was shared and led to the identification of the principal players behind a 10 tonne importation of cannabis resin into Australia and a further importation into the USA and Canada. He continued:

This is an illustration of how intelligence is being shared between the agencies and is being built up. I think you would have to be very careful to react to figures like that that were in the back of the annual report in looking at them in isolation. You really need to look at everything in its entirety. [131]

1.142 Ms Elizabeth Montano, Director of AUSTRAC, also believed that the NCA was very effective, particularly in the way it followed the money trail of crime. [132] In her submission she addressed a range of fields in which she believed the NCA had been effective. She gave evidence that:

• the work being undertaken by the NCA's `Agio' Money Laundering Task Force is invaluable and some of the most significant heroin trafficking groups identified in Australia have been identified by the Task Force;
• the NCA has played a pivotal role in law enforcement efforts against organised crime through the establishment of national task forces in respect of Italian organised crime, outlaw motorcycle gangs and South East Asian organised crime. The teamwork and sharing which results from NCA coordination is very effective and assists in overcoming many jurisdictional and practical obstacles to inter-agency cooperation;
• the NCA's special powers have been effective in gathering information relating to facilitators of money laundering and tax evasion;
• the NCA report on money laundering in 1991 was a `ground-breaking and comprehensive study' which identified criminal typologies and made recommendations for investigative and legislative reform; and
• the NCA has produced very persuasive evidence which has contributed greatly to legislative reform of the Financial Transaction Reports Act 1988. [133]

1.143 According to the then Executive Member of CLEB, Mr Daryl Smeaton, the NCA has made a major contribution to improving our understanding of the criminal environment through the production of strategic criminal assessments. He also noted that it had played a critical role in coordinating multi-agency, multi-jurisdictional task forces. [134] This view is echoed by the CJC which referred in its submission, to the production of professional intelligence assessments by the Authority `which, for the first time, give a clear understanding of some of the organised crime problems that present threats or potential threats to Australia'. The CJC also gave examples of noteworthy joint operations where the NCA's assistance had been of material benefit. [135]

1.144 The Chief Minister of the Northern Territory, who raised the apparent duplication between the NCA and police forces, nevertheless noted the success of co-ordinated activities such as those into Italian and South East Asian crime, which have each yielded results which are effective and in the national interests. [136]

1.145 Mr Falconer, Commissioner of the Western Australia Police Service, also believed that the compilation of national strategic assessments by the Authority had been `well executed':

This could not have been successfully achieved by any one state jurisdiction acting alone, whereas the NCA with its multi-disciplined and jurisdictional approach has been very successful in producing quality assessments which now form the basis on which LEAs [law enforcement agencies] in Australia are formulating their direction. [137]

1.146 He also referred to a State investigation which had been incorporated into an NCA reference and a joint task force created:

The NCA provided specialist and technical expertise and used its multi-jurisdictional coordinating role to great effect resulting in proceeds of crime seizures totalling $2.79 million including in excess of $840,000 in cash. This operation is a premier example of inter-agency cooperation and the results which can be achieved when an Agency has the ability to reach across boundaries. [138]

1.147 Evidence given by Acting Assistant Commissioner Lambert of the Victoria Police rated the NCA as very good in the preparation of strategic assessments, `probably amongst the best in the country, comparing other states that we have dealings with' and `very, very good at collating and analysing intelligence'. He also noted that `the NCA has had some remarkable successes' in arresting major heroin traffickers. [139]

1.148 The Bar Association of Queensland noted that the Authority had done `some important work in collecting, analysing and disseminating criminal intelligence and information and making recommendations for the reform of law and administrative practices'. [140] The PJC noted that NCA recommendations for law and administrative reform are referred to regularly in its annual reports.

1.149 In its submission to the PJC, the NCA included an attachment of case studies. Due to the classification of this document, the PJC is unable to refer to it publicly. It can, however, cite some of the work in which the NCA has been involved which has been publicly reported. A few examples culled from media releases during 1997 are:

• a joint operation against an outlaw motorcycle gang during which illicit drugs with an estimated street value of $1million were allegedly seized;
• a joint operation into an alleged conspiracy to import 50 kilograms of cocaine from Chile; and
• lengthy sentences given to four people who pleaded guilty to charges relating to money laundering and the possession and supply of heroin. This followed an investigation into an international syndicate which was reported to have imported high grade heroin and laundered over $10.5 million in an 11 month period.

1.150 The PJC noted that, as with much of the NCA's work, the cooperative nature of the operations makes it difficult to define how valuable the NCA's contribution was. For that, the PJC referred to the evidence presented to it. The overwhelming weight of evidence was that the Authority is effective. Its work in the important areas of coordination and the management of joint task forces, disrupting criminal groups and the development of useful intelligence assessments dealing with organised crime and its contribution to law reform was viewed favourably by its partner agencies, who are, in many ways, in the best position to assess this.

Efficiency

1.151 The NSW Minister for Police put the view that the NCA would be more efficient if amendments to Commonwealth and State legislation were made as referred to in the NCA's 1995 report Beyond the Reach of Law? - An Assessment of Legislation and Other Measures to Counteract the Activities of Criminal Organisations in Australia. [141] The PJC received evidence from a range of witnesses that the Authority's efficiency and effectiveness were hampered by the need for legislative change. The specifics of these issues are addressed in detail in the following chapters.

1.152 As referred to above, evidence was tendered by PFANZ and the Chief Minister of the Northern Territory, that there were inefficiencies in the current system. The Chief Minister concluded that:

Some questions need to be raised however about the efficiency of the NCA, particularly the apparent duplication of activities between that agency and the state and territory police forces. ... I am particularly concerned to ensure that the direct law enforcement work of the NCA is focussed on only that work which cannot be undertaken by the Australian Federal Police or a state or territory police force. The alternative model of a body which can harmonise law enforcement activities in the national interest, without unnecessarily adding to the cost of achieving such aims, would equally be in the national interest. [142]

1.153 The New South Wales DPP also raised the question of whether it was necessary, or appropriate, for a body such as the Authority to function alongside the AFP and other specialist bodies such as the NSW Crime Commission due to possible duplication of resources and effort. [143]

1.154 Mr Hyde, Commissioner of the South Australia Police, touched on this issue when he noted that the NCA's efficiency and effectiveness is dependent upon the cooperation afforded it by participating agencies. He stated:

... for the Authority to be effective and efficient, agreed and specific inter-agency protocols need to be established and adhered to to ensure no duplication of roles, as the latter tends to generate ill feeling and lack of cooperation ... with consequent loss of productivity. [144]

1.155 The PJC believes that, if the NCA were undertaking work which could be done by other agencies, this would be a misdirection of NCA resources. It was designed to perform a role not filled by any other Australian agency.

1.156 Having said this, the PJC noted with interest the submission of Mr Falconer, Commissioner of the Western Australia Police Service, which referred to the NCA's budget cuts and subsequent reduction in size and noted:

Coincidentally it was during this period that WAPS [Western Australian Police Service] had, of its own initiative, decided that it would be beneficial to introduce its own dedicated Organised Crime Squad and to substantially increase the Bureau of Criminal Intelligence. A very large proportion of the work that should have been undertaken by an adequately staffed NCA office was, out of necessity, passed to WAPS, at a time when resources to the AFP and ACS have also been reduced in Western Australia. It is difficult to comprehend what may have occurred but for these timely developments in the WAPS. [145]

1.157 This statement leads the PJC to wonder why, if this were work which the State police service was capable of carrying out, it was being performed by the NCA in the first place. Another interpretation could be that this is an over-simplification of events.

1.158 The PJC is not able to prove or disprove whether a significant overlap has occurred between the NCA and other agencies in the past, but the issue demonstrates the need for the management model of SCOCCI as recognised in the Avery - Bingham review. The PJC notes, however, that most evidence was to the effect that the NCA does perform its unique role rather than overlapping with other agencies.

1.159 Mr John Elliott was the only witness gave evidence that the NCA was imprudent in its use of funds:

... rather than scrap the investigation, the NCA embraced the thought that it had to produce something and so off it went on the wildest of wild goose chases at public expense trying to pretend that it had uncovered some other wrongdoing. And it acted as though money was no object, throwing good money after bad ... [146]

1.160 Mr Hyde, Commissioner of the South Australia Police, noted advice from a previous Commissioner that a balance needs to be struck between pursuing particular investigational objectives and an efficient and economical use of NCA resources, particularly when progress in investigations is minimal. Mr Hyde referred to the increasing demands on State police resources due to NCA staffing reductions and concluded:

... Whether or not the Authority is again resourced sufficiently to enable it to enhance its presently limited capabilities, ... prudent financial management must form an integral component of future memoranda of understanding, particularly in task force situations. [147]

1.161 The PJC agrees with Mr Hyde that prudent financial management must be addressed, not only in memoranda of understanding, but also in NCA management practices.

1.162 The apparent cost of convictions was raised in evidence as a possible indicator of NCA efficiency. Mr John Marsden, President of the NSW Council for Civil Liberties examined figures for NCA funding, arrests and subsequent convictions. He stated:

I agree that success should not be measured on the quantity of convictions, but rather the quality. However, a review of these convictions would suggest that these are relatively small players ... How does one reconcile ... spending almost $1m per criminal who are predominantly charged with minor drug related offences and the fact that there is nothing close to this amount expended on those who murder, rape, maim and steal? [148]

1.163 The PJC questioned the Chairperson of the NCA in relation to costs per arrest. Several points were made by Mr Broome in response including: the NCA's very high rate of achieving successful outcomes in terms of prosecutions through its briefs of evidence and cooperation with prosecutors; the fact that the people the NCA deals with are more difficult to identify, investigate and arrest, so that costs would be high and the need for a qualitative measure of the work being done. He referred to the fact that it is the significance of the person which was important. The PJC concurs that there is a need for qualitative measures, particularly relating to the significance of those arrested as it believes that simple arithmetical analyses based on currently available data is profoundly flawed.

1.164 Mr Hyde referred to the need for close examination of the NCA's efficiency and effectiveness, noting an issue raised in 1991, namely the perception that the management of the Authority suffered because of the lack of management skills within the organisation. [149] The issue of appropriate staffing of senior positions is dealt with in a later chapter.

1.165 The PJC notes the relative lack of comment in evidence about the NCA's efficiency. The lack of criticism could be interpreted as a vote of confidence in the efficiency of the NCA or may reflect the fact that those outside the organisation do not feel themselves to be sufficiently informed to comment. Unfortunately, the dearth of solid information dealing with issues of efficiency make it impossible for the PJC, in this report, to make any comprehensive assessment as to whether the NCA is efficient or not and to what degree. This is undesirable given the significance of the Authority and its work and the PJC looks forward to better reporting in future as discussed above.

Impact of Budgetary Changes

1.166 As part of the restraint imposed upon Commonwealth spending in recent years, the NCA's budget was reduced, as was the budget of a number of other agencies. Mr Broome informed the PJC in late 1996 that:

... in the last two years the Authority has effectively lost about 20 per cent in real terms of its resources ... we have had to lose about 15 percent of our staff since June this year ... [150]

The NCA supplied the PJC with the table on page 39 which graphically demonstrates the extent of the cuts.

1.167 The most obvious result of the funding cuts was a reduction by the NCA of its staff numbers in Perth and Adelaide. Generally such reductions are seen as a way of saving public monies by imposing on management the burden of finding ways to do more with less or, as a minimum, to do the same with less. The theory of such efficiency dividends is that management will progressively identify and eliminate wasteful practices or seek to streamline necessary tasks. The PJC was interested to see whether evidence supported this view in relation to the NCA.

1.168 Certainly this was a subject which elicited a wide response. Mr Falconer, Commissioner of the Western Australia Police Service, was of the opinion that the funding reduction directly resulted in a decline in both efficiency and effectiveness. He stated that in earlier times, close work between his Service, the NCA, AFP and ACS had led to notable success in identifying, targeting and apprehending major criminals, inferring that this

TABLE 1

situation had not continued. He believed that such downsizing must result in a loss of efficiency and effectiveness, he referred to the added burden of work placed upon the WAPS and he considered that the reduction in the NCA's Perth office was having profound effects on the work produced by the NCA. He did not refer to the ways in which such changes would reduce NCA efficiency. [151]

1.169 Assistant Commissioner Mott, of the Western Australia Police Service, informed the PJC that:

There have been markedly reduced significant barrier seizures of heroin and cannabis in Western Australia in recent times and it is believed that this can be attributed to the current situation with the NCA, the AFP and the Australian Customs Service as their circumstances do not allow for a concentrated effort in detecting such infiltration ... There are indications that organised crime groups have recognised the vulnerability of Western Australia due to the cuts that have occurred in the Perth office of the NCA and other Commonwealth law enforcement agencies. It is therefore not surprising that they are moving into this state. Unless the ability of the NCA and these other agencies to deal with organised crime is returned to its former strength, the situation can only worsen. [152]

1.170 The PJC accepts that limits to the capacity of Commonwealth law enforcement agencies in Western Australia could be one of several possible reasons for the reduction in drug seizures. Mr Mott also implied that organised crime groups were moving into the state as a direct result of the NCA's downsizing. While it would be reassuring to believe that criminals hold the Authority in such esteem that its very presence in a state is enough to deter them from locating there, the PJC is obliged to take the more cautious view that there may be other factors contributing to the reported moves by criminal groups into Western Australia. The degree to which restrictions on the NCA's budget in that state contributed to these changes, if at all, is uncertain.

1.171 The South Australian Police Commissioner, Mr Hyde, noted that reduction in NCA staffing would place increasing demands on local police resources:

This is likely to ultimately result in some serious criminal activity remaining undetected or being only superficially investigated. It is accordingly suggested that the NCA should be sufficiently resourced to provide, in addition to a limited investigative role, greater support to other agencies, particularly in the areas of surveillance, intelligence gathering [or] analysis, forensic accounting [or] financial analysis and legal services. [153]

1.172 In other words, he saw the cuts as impinging upon the effectiveness of the NCA and changing its role, leading to greater emphasis being placed on the NCA's coordination role. [154] Evidence given by Detective Superintendent Denis Edmonds, Officer in Charge of the South Australian Police Drug Task Force, indicated that more work could have been done on two NCA references if it had not been for budget cuts to the Authority. [155]

1.173 The Queensland Police Service also referred to a change in the NCA due to the budget cuts, stating that this has led to `a noticeable diminished capacity to actively target organised criminal activity'. It suggested that intelligence analysts were not being appointed to the NCA in Western Australia, thus hindering its intelligence capability, and that investigative staff are restricted in the range of activities which may be investigated, at a time when law enforcement agencies have identified `a massive increase in the use and distribution of narcotics'. [156]

1.174 Similar evidence was provided by the NSW Minister for Police, the Hon. Paul Whelan, MP, who submitted that the funding cuts had led to a restructuring of resources which impacted on the NCA's ability to target organised crime effectively. He gave the example of the Sydney experience where NCA resources were concentrated on one menu item, that of Asian organised crime, at the expense of equally important menu items. [157]

1.175 The NCA itself informed the PJC that the series of budget reductions had a significant adverse effect on its operational capacity. It referred to a resulting significant reduction in the numbers of NCA staff and a scaling down of resources available for operational and other purposes, concluding that:

... the real reduction of approximately 20 per cent in the NCA's budget in three years had and will continue to have, a dramatic effect on our capacity to deal with all of the priority areas earmarked by the IGC. [158]

1.176 It also advised that a number of investigations have not progressed as a result of resource constraints. In evidence before the PJC, Mr Broome stated that the NCA recognised that the reductions it was making reduced the effectiveness of individual offices and of the NCA as a whole and referred to the direct relationship between resources and results. [159]

1.177 Other witnesses before the PJC gave evidence that the budget cuts had negatively impacted on the work of the NCA. These included the Director of the South Australian Department of Public Prosecutions, [160] Mr Malcolm Gray of the South Australian Bar Association, [161] the AFPA [162] and Mr Tim Sage, a former Regional Director of the NCA. [163]

1.178 The evidence before the PJC on this issue was to the effect that budget cuts to the NCA had had a substantial impact on its capacity to investigate. The PJC noted with satisfaction the allocation of an extra $20 million to the NCA in the 1997-98 budget over a three year period. This is to extend its investigations into major fraud against the Commonwealth through complex money laundering and tax evasion schemes linked to organised criminal activity. While this was tangible evidence of the Government's confidence in the NCA to produce results, the further cuts to the NCA's base funding to meet the portfolio's savings targets can only exacerbate the NCA's overall effectiveness.

1.179 Mr Broome, however, gave evidence to the PJC that unless base funding is increased at the end of three years (by which time the $20m will be used up) the operational capacity of the NCA will be affected:

We are increasingly trying, to use the jargon, `To do more with less', but there is a stage you reach where you end up doing less with less. It does not matter how you describe it, that is what you end up doing. [164]

1.180 This report opens with a quote from President Clinton, in which he emphasised the destructive nature of major crime and the need for nations to ensure that their law enforcement agencies are well equipped to face this threat. The PJC believes that we in Australia need to be vigilant in ensuring that our expert anti-crime agencies, while subject to the appropriate accountability processes and budgetary consciousness, do not become hamstrung by economic considerations.

1.181 The PJC welcomes the Government's announcements under its `Tough on Drugs Strategy' of some $187 million in extra funding, much of which is directed at improving the operations of law enforcement agencies. In particular, the National Crime Authority has been allocated an extra $21 million over a four year period to enable it to intensify its targeting of South East Asian organised crime. The funding will also provide for more sophisticated technical equipment and methodologies to be available to the Authority.

1.182 However, the PJC notes that the Government's recent increased funding of the NCA has been tied to certain defined areas of investigation: into major fraud against the Commonwealth and into South East Asian organised crime. While it is recognised that the most recent funding will give the NCA a much-needed improvement in its overall level of technical expertise, the PJC remains concerned that the Authority's underlying funding base is excessively restricting its capacity to address adequately other priority areas of organised crime. Accordingly, the PJC is calling on the Government to address the NCA's budgetary situation as a matter of urgency.

Recommendation 2: That the National Crime Authority's base funding be urgently increased to ensure its ability to work with maximum effectiveness across the full range of organised crime activity.

DECRIMINALISATION OF ILLICIT DRUGS

1.183 One significant issue which arose during the PJC's hearings was the continuing need for the NCA should Australian legislatures ever adopt a decriminalisation approach to the community's drugs problem.

1.184 The NCA Annual Report for 1996-97 demonstrates the role played by the NCA in the current supply reduction effort. Of 472 charges laid during the year, some 324 (69%) were for drug offences, while most other charges (such as possession of firearms) can be assumed to be drug-related.

1.185 This report is not the appropriate vehicle for the PJC to discuss the decriminalisation issue, although students of the debate are urged to examine the relevant discussions which took place during the PJC's hearings. The PJC further commends the report of its predecessor in May 1989 entitled Drugs, Crime and Society which, while containing now somewhat dated data, was a comprehensive analysis of the debate.

1.186 Witnesses to the current inquiry emphasised the differences in international approaches to illicit drugs. Australia's approach was described as a `middle path', [165] which is accepting of the reality of drug use and is geared towards minimising the harm arising out of that use through a policy balance of supply and demand reduction strategies; a balance between treatment, prevention, research and education.

1.187 While individual PJC members differ on the emphasis they would wish to place on the different elements of this approach, there is unanimity that law enforcement bodies play a critical role within the harm minimisation model. When asked whether Australia was winning the fight against drugs, NCA Operations Manager, Mr Peter Lamb, said `The short answer is no' while Mr Broome added `One has to ask the question, though if we and all the others involved in the activities were not doing it, how much worse the situation might be'. [166]

1.188 Mr Tim Sage, a former NCA Regional Director, placed the debate in context. While he noted the significance of investigations into illicit drugs for the NCA, he pointed out that drug-related crimes are not the sole activity of organised crime and that `at any one time there may be two or three other very significant organised crime problems for this country or impacting on this country'. [167]

SUMMARY

1.189 In summary, the PJC is convinced that organised, multijurisdictional crime has not diminished in amount or nature so as to obviate the need for a national law enforcement response to it. Changes in the criminal environment have, in fact, made even more necessary a national collaborative effort, especially in the context of the globalisation of organised crime which increasingly impacts on this country.

1.190 The PJC noted the overwhelming advice that this was a task which still required a national co-ordinating body, able to transcend the limitations of Commonwealth, State and Territory jurisdictions, with the resources and powers to make inroads against sophisticated, multijurisdictional criminality. In the PJC's opinion, no viable alternative to the NCA has been propounded.

1.191 The PJC noted the weight of evidence that the NCA was effective in its role of counteracting organised crime and the fact that the views of the Authority's partner agencies must carry considerable weight in this regard. The PJC also noted the material provided by the NCA in confidence, which indicated it has and is continuing to undertake significant work against a range of criminal groups. It is convinced that the Authority's success in a range of areas is sufficient to mark it as a valuable contributor to law enforcement in Australia.

1.192 The PJC has concluded that the NCA is needed more than ever and that it should have increased resources.

1.193 The question of whether the Authority should be retained in its current form, or whether changes are necessary to ensure its effectiveness, good management and accountability, are examined in the Chapters that follow.

 

Footnotes

[1] Athol Moffitt, A Quarter to Midnight published 1985, quoted by Mr Frank Costigan QC, Evidence, 4.6.97, p. 456.

[2] Initial Evaluation, para. 2.23.

[3] Evidence by Mr Costigan, 4.6.97, p. 465.

[4] The Hon. Neil Brown, MP, Acting Attorney-General, House of Representatives Hansard, 21.10.82, p. 2394, and cited by Mr Costigan, in evidence, 4.6.97, p. 458-9.

[5] Queensland Criminal Justice Commission, Evidence, 21.5.97, p. 85.

[6] Evidence, 4.6.97, p. 485.

[7] Evidence, 16.6.97, p. 913.

[8] Who is to Guard the Guards?, p. 67.

[9] CLER, p. 3.

[10] ibid. p. 93.

[11] ibid. p. 281.

[12] ibid. pp. 230-231.

[13] ibid. p. 282.

[14] ibid. p. 94.

[15] ibid. pp. 103-104.

[16] ibid. p. 104.

[17] ibid. p. 103.

[18] ibid. p. 162.

[19] Report on the Future Strategic Role of the National Crime Authority in State Law Enforcement Systems, April 1995, p. 2.

[20] ibid.

[21] ibid. p. 14.

[22] CLER, pp. 21-22.

[23] ibid. p. 27.

[24] ibid. p. 29.

[25] ibid. pp. 29-30.

[26] Asian Organised Crime in Australia - A Discussion Paper by the Parliamentary Joint Committee on the National Crime Authority, February 1995, pp. 54-55.

[27] Evidence, 2.6.97, p. 418.

[28] Evidence, 11.6.97, p. 695.

[29] Evidence, 2.6.97, p. 418.

[30] Evidence, 10.6.97, p. 537c.

[31] Evidence, 10.6.97, p. 577o.

[32] Evidence, 26.5.97, p. 365.

[33] Evidence, 21.5. 97, pp. 119-120.

[34] ibid. p. 120.

[35] Evidence, 11.6.97, p. 634.

[36] Evidence, 2.6.97, pp. 427-428.

[37] Evidence, 10.6.97, p. 538.

[38] Evidence, 22.5.97, pp. 273-274.

[39] Evidence, 21.5.97, p. 88.

[40] Submission No. 41, p. 1.

[41] ibid. p. 2.

[42] Evidence, 21.5.97, p. 73.

[43] Evidence, 4.6.97, p. 479.

[44] Evidence, 10.6.97, p. 537o.

[45] Evidence, 10.6.97, p. 537m.

[46] Evidence, 10.6.97, p. 537c.

[47] Evidence, 2.6.97, p. 424.

[48] Evidence, 2.6.97, p. 442.

[49] Evidence, 21.5.97, p. 119.

[50] Evidence, 21.5.97, p. 96.

[51] Evidence, 11.6.97, p. 640.

[52] Submission No. 31.

[53] Evidence, 11.6.97, p. 633.

[54] Evidence, 26.5.97, p. 366.

[55] Submission No. 17.

[56] Evidence, 21.5.97, p. 141a.

[57] Evidence, 26.5.97, p. 315.

[58] Evidence, 26.5.97, pp. 346-347.

[59] Evidence, 23.6.97, p. 1013.

[60] Evidence, 22.5.97, p. 165.

[61] Evidence, 2.6.97, p. 383.

[62] Evidence, 10.6.97, p. 587.

[63] Evidence, 21.5.97, p. 19.

[64] Evidence, 10.6.97, p. 565.

[65] Evidence, 11.6.97, p. 698.

[66] Evidence, 22.5.97, p. 252.

[67] Evidence, 16.6.97, p. 913.

[68] Evidence, 12.6.97, p. 759.

[69] Evidence, 12.6.97, pp. 841-842.

[70] Evidence, 12.6.97, p. 779.

[71] Evidence, 12.6.97, pp. 759 and 773.

[72] Evidence, 12.6.97, pp. 761 and 783.

[73] Evidence, 12.6.97, p. 763.

[74] Evidence, 12.6.97, p. 766.

[75] Evidence, 12.6.97, pp. 779-781.

[76] Evidence, 23.6.97, p. 1090.

[77] Evidence, 23.6.97, pp. 1113 and 1118.

[78] Statements by Mr Jeff Kennett, Premier of Victoria, referred to in evidence by Mr Peter Cleeland, 11.6.97, p. 682.

[79] Submission No. 34.

[80] Evidence, 22.5.97, p. 215.

[81] Evidence, 22.5.97, p. 220.

[82] Submission No. 1.

[83] Evidence, 16.6.97, p. 920: the NCA's special powers are explained in Chapter 4.

[84] Evidence, 16.6.97, p. 921.

[85] ibid. Note: Ministers of Police are members of the IGC, whereas Commissioners are members of SCOCCI.

[86] Evidence, 16.6.97, p. 925.

[87] Evidence, 16.6.97, p. 913.

[88] Evidence, 16.6.97, p. 919.

[89] Evidence, 22.5.97, p. 146 and149.

[90] Evidence, 4.6.97, p. 469.

[91] Evidence, 4.6.97, p. 470.

[92] ibid.

[93] Submission No. 23.

[94] Submission No. 16.

[95] Evidence, 11.6.97, pp. 737 and 745.

[96] Evidence, 10.6.97, p. 513.

[97] Evidence, 11.6.97, p. 640.

[98] Evidence, 11.6.97, p. 666.

[99] Australian Federal Police Corporate Directions and Strategies 1997-2000, p. 13.

[100] Evidence, 11.6.07, p. 686.

[101] Christopher Corns, Evaluating the National Crime Authority, Law Institute Journal v65(9) September 1991, p. 829.

[102] Initial Evaluation, p. 55.

[103] ibid. p. 56.

[104] Evidence, 21.5.97, p. 87.

[105] Managerialism and Major Crime in Australia, University of New South Wales Law Journal, V.13(1) 1990, p. 53.

[106] Initial Evaluation, pp. 55-56.

[107] Evidence, 11.6.97, pp. 668 - 675.

[108] Evidence, 10.6.97, p. 521.

[109] Evidence, 21.5.97, p. 12.

[110] Evidence, 22.5.97, p. 156.

[111] Evidence, 21.5.97, p. 87.

[112] Evidence, 11.6.97, p. 737.

[113] National Crime Authority Corporate Plan, 1992-95, p. 23.

[114] See page 4 of the report.

[115] National Crime Authority Annual Report 1996-97, p. 57.

[116] National Crime Authority Annual Report 1995-96, p. 9.

[117] ibid. p. 9.

[118] Evidence, 3.3.97, p. 5.

[119] National Crime Authority Corporate Plan 1991-1994, p. 6.

[120] Performance Information Principles, Better Practice Guide - November 1996, Australian National Audit Office.

[121] Evidence, 22.5.97, p. 218.

[122] Submission No. 40, pp. 1-2.

[123] Submission No. 40, p. 3.

[124] Evidence, 21.5.97, p. 57.

[125] Evidence, 21.5.97, p. 60.

[126] Evidence, 21.5.97, p. 5.

[127] Evidence, 3.3.97, p. 25.

[128] Evidence, 2.6.97, p. 403.

[129] Evidence, 2.6.97, pp. 436 and 443.

[130] Evidence, 2.6.97, p. 444.

[131] ibid.

[132] Evidence, 22.5.97, p. 167.

[133] Evidence, 22.5.97, pp. 161-164.

[134] Evidence, 26.5.97, p. 344.

[135] Evidence, 21.5.97, pp. 90-92.

[136] Submission No. 16.

[137] Evidence, 10.6.97, p. 537o.

[138] ibid.

[139] Evidence, 11.6.97, pp. 640 and 645-646.

[140] Evidence, 21.5.97, p. 141c.

[141] Submission No. 31.

[142] Submission No. 16.

[143] Submission No. 23.

[144] Evidence, 10.6.97, p. 537e.

[145] Evidence, 10.6.97, p. 537p.

[146] Evidence, 12.6.97, p. 763.

[147] Evidence, 10.6.97, p. 537d.

[148] Evidence, 22.5.98, p. 214 (emphasis in original).

[149] Evidence, 10.6.97, p. 537e.

[150] Evidence, 22.10.96, p. 3.

[151] Evidence, 10.6.97, p. 537p.

[152] Evidence, 10.6.97, pp. 540-541.

[153] Evidence, 10.6.97, p. 537c.

[154] Evidence, 10.6.97, pp. 537b-c.

[155] Evidence, 10.6.97, p. 551.

[156] Evidence, 21.5.97, p. 123.

[157] Submission No. 31.

[158] Evidence, 22.5.97, p. 276.

[159] Evidence, 22.5.97, p. 295.

[160] Evidence, 10.6.97, p. 588.

[161] Evidence, 10.6.97, p. 524.

[162] Evidence, 16.6.97, p. 914.

[163] Evidence, 22.5.97, p. 250.

[164] Evidence, 16.12.97, p. 21.

[165] Dr Adam Sutton, evidence, 11.6.97, p. 676.

[166] Evidence, 22.10.96, pp. 11-12.

[167] Evidence, 22.5.97, p. 253.