Chapter Two

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Chapter Two

ROLE AND FUNCTIONS

The true objectives of the National Crime Authority should be defined with some precision. Care should be taken to ensure that in stating the objectives there are not included tasks and objectives of other agencies, that not too wide an ambit is granted. At the same time, care should be exercised to ensure the statement of objective does capture the true and proper purpose, and does not reflect confusion as to what it is to do. Once the objectives are stated, all other matters relating to the Authority are capable of being judged and determined. It is desirable to determine this issue first. [1]

2.1 In this Chapter the PJC will examine the role and functions of the NCA. As will be discussed below, the view is held by several respected observers that, despite Mr Douglas Meagher's perspicacious advice quoted above, the Parliament failed to define the NCA's role and functions with the clarity he had urged.

2.2 This lack of clarity was arguably because of the somewhat innovative and uncertain nature of the body which the Parliament was seeking to create which, being part royal commission and part police force; was to be a `very different kind of investigative body'. [2]

2.3 The discussion in Chapter 1 strongly suggests that the NCA is performing an invaluable role in the law enforcement matrix, despite any perceived deficiencies in its enabling legislation. The PJC stresses its view that, even after 13 years of operation, the flaws in the original drafting of the NCA Act should be rectified to provide a sound basis upon which the NCA can operate into the next millennium.

PARLIAMENT'S INTENTIONS: THE LEGISLATION

2.4 The submission of the Attorney-General's Department summarised what Parliament had intended in 1984 as the role for the NCA:

The NCA was established as a small, specialised agency to lead the fight against organised crime. This threat was considered at the time to be of great national significance. It was given coercive powers - more acceptable to the community than giving those powers to a police force. At the time it was also necessary to gain the active involvement and cooperation of the States and Territories in this fight against organised crime. [3]

2.5 The Senate Standing Committee on Constitutional and Legal Affairs in its 1984 report on the National Crime Authority Bill 1983 described the types of criminality which the NCA was to counter in the following terms:

The criminal activities identified by recent royal commissioners have been variously (and loosely) described as `white collar', organised, complex and sophisticated crimes. The label is unimportant. In Australia such types of crime have been identified by royal commissions as being rife in the areas of taxation evasion, bankruptcy-fraud, theft, fraud, illegal gambling, currency violation, illegal drug dealings, financial exploitation of others in vice rackets and the wrongful use of the corporate veil to achieve unlawful purposes and ends. [4]

2.6 The NCA Act makes no mention of `organised crime'. Instead, as the submission from the Attorney-General's Department notes:

The NCA investigates matters relating to `relevant criminal activity', which is defined to mean `any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, committed against any law of the Commonwealth, of a State or of a Territory'. Further, the definition of `relevant offence' indicates that the Authority is charged with investigating criminal offences of a serious nature which have certain characteristics:

multiple participants;
substantial planning and organisation;
use of sophisticated methods and techniques; and
of a national significance where normal policing methods would not be successful. [5]

2.7 The Authority has `general functions' and `special functions'. Its general functions are intelligence collection and analysis, investigation, and the establishment and coordination of multi-jurisdictional task forces. [6]

2.8 Its `special functions', on the other hand, are essentially investigative, [7] but with access to certain prescribed coercive powers to require people to attend private hearings, to compel the production of documents and to compel people to answer questions at the hearings. [8] These powers are normally only provided to royal commissions because they are seen as critical to the process of finding the truth of the situation for which such commissions are established. While the NCA has access to normal police powers of investigation at any time, it can only use its coercive powers to investigate matters which have been referred from the Inter-Governmental Committee (IGC) by notice in writing [9] (which is usually known as `a reference' as part of `the references system'). The involvement of the IGC reflects the national status of the Authority by ensuring that the interests of each State and Territory are represented equally with those of the Commonwealth. [10]

2.9 It is generally accepted that the types of coercive powers granted to royal commissions and to the NCA will not be made available to police services because of concerns about the potential for their use and abuse. The NCA is subject to a range of accountability measures, discussed in Chapter 5, to ensure appropriate use of its special powers.

2.10 As well as its investigative role, the NCA is charged with a cooperative and coordinating role to the extent that it is required to:

collect and analyse criminal intelligence and disseminate it to law enforcement agencies; [11]
seek and arrange the establishment of investigative task forces which may be Commonwealth only, inter-State, or joint Commonwealth-State; [12]
(in cooperation with the agencies concerned), to coordinate any of the above task forces, [13] and to coordinate with overseas authorities; [14]
`cooperate and consult with the Australian Bureau of Criminal Intelligence;' [15] and
`so far as is practical, work in cooperation with law enforcement agencies.' [16]

2.11 Finally, the Act provides for a law reform function. [17] The NCA is permitted to make recommendations for reform of the law relating to relevant offences.

2.12 The NCA Act stresses that the Authority is charged with a similar responsibility to the police to assemble admissible evidence. [18] The Parliament thus saw fit to vest the NCA with a responsibility to support the prosecution process in bringing criminals to justice but, like the police, not to conduct the prosecutions itself.

2.13 Another important difference between the NCA and the traditional police model (although it is recognised that there have been more recent developments in the nature of police work) would be its proactive approach to criminal investigation rather than the reactive nature of the existing police services. The NCA submission noted that:

The NCA is able to be pro-active in its investigations and assessments whereas State and Federal police services are generally forced to be reactive to immediate needs. [19]

2.14 Furthermore, unlike other Commonwealth investigative bodies, the new Authority was not to be limited to any one area of public interest such as taxation, customs or corporate activity. Not only was its role to transcend all Australian jurisdictional boundaries, it would also extend across specialised and statutorily limited jurisdictions so that `the power to monitor the activities would be vested in one body', which would be able to `see the whole picture'. [20]

2.15 The NCA Act was, of course, complemented by corresponding legislation in all States and Territories giving the NCA jurisdiction to investigate offences against Commonwealth, State and Territory laws and, most importantly, offences perpetrated across State and Territory borders.

2.16 Thus, the NCA was established to counteract organised crime with, firstly, a trans-jurisdictional domain and, secondly, investigative powers similar to those of a royal commission. In this sense the Parliament sought to create a unique, hybrid investigative body: part police service; part royal commission.

THE NCA's ROLE TODAY: THE THREE MAIN ELEMENTS

2.17 The principal elements of the NCA's role can be conveniently examined in three categories: the nature of its investigative function, its trans-jurisdictional nature and its prescribed area of inquiry. Evidence in each respect is discussed in turn below.

The nature of its investigative function

Part police, part royal commission

2.18 In conducting its investigative role, the NCA shares several of the features of both a police service and a royal commission. By using special powers to investigate complex organised crime, the NCA is able to secure evidence and documents which would otherwise remain concealed, or inaccessible, under normal police investigative procedures. It is a basic principle of criminal law that a person is entitled to remain silent when questioned by police. The police could not, for example, compel a bank manager to provide them with confidential client records. The only basis on which the police could demand or fetch the records would be if they had first obtained a warrant, for which they would need to be able to identify the offence that they suspected had been committed.

2.19 The NCA, on the other hand, may use its special coercive powers to insist that the information it requires be supplied (unless, as discussed below, the information required may tend to self-incriminate). [21] The NCA is capable of compelling bank managers to produce such documents, thereby effectively relieving them of the responsibility to protect their clients' confidentiality.

2.20 Several royal commissions prior to the NCA's establishment had referred to the need to `follow the money trail' because the money leaves `tracks [that] are there to be found and followed'; and movements of money can be tracked because `all financial transactions are recorded somewhere in public or private documents or on computer tapes'. [22]

2.21 This was seen by the Government at the time of the NCA's establishment as one of the ways in which the role of the Authority was to be differentiated from police investigations, on the basis that:

Police investigations are concerned essentially with particular offences known or reasonably believed to have been committed, with the starting point usually being the complaint of a victim or discovery by the police of the results of a crime. [23]

2.22 By comparison, the proactive nature of the NCA's operations is demonstrated by the fact that its investigations may commence where there is no identifiable offence. For example, a seemingly innocuous financial transaction could, through investigation, lead to the recognition of a pattern of financial transactions which lead to suspicions of money laundering. Further investigation might then lead to convictions for the criminal behaviour from which the laundered money was earned. In this way, the NCA's role is significantly closer to that of a royal commission than police.

2.23 The NCA Act indicates that the inquisitorial nature of the NCA's operations continues until a witness is asked for information which he or she claims may be self-incriminating. At this point, the nature of the investigation shifts from being of a fact-finding nature to one that is required to follow the traditional rules of the adversarial system, whereby the witness has a right to silence rather than divulge information which may self-incriminate. [24] Under the adversarial system, the prosecution is required to seek to collect the evidence it requires to sustain its case in court; the accused is not required to do the prosecution's job for it in this respect.

2.24 The NCA's investigation is straddling the two systems at this point. So long as it is able to compel information from witnesses who are at no risk of incriminating themselves, the NCA's special investigation is of an inquisitorial nature and it will generally proceed without difficulty. As soon as a witness refuses to provide self-incriminatory information, the NCA faces two choices. It can either give a guarantee to the witness that the information divulged will never be used in evidence against the person, and so continue the line of questioning (according to the royal commission model) or, alternatively, it can leave open the possibility of later charging and convicting the witness by accepting their claim to silence. Under the present legislative arrangements, the responsibility for making the indemnity decision rests with the relevant prosecuting authority, not with the NCA. [25]

2.25 In his Second Reading Speech on the 1983 bill, then Attorney-General Senator Gareth Evans had emphasised that the usual protection of individual rights provided under the adversarial system would be included in the NCA Act. While the Authority was to be granted coercive powers like a royal commission it was not, unlike a royal commission, to be permitted to extract information over claims of self-incrimination. Senator Evans said:

After considering carefully the contrary viewpoints, the Government has taken the position ... that there are basic differences between the role of a royal commission and that of an ongoing Crime Authority, and that this should be reflected in the make-up of the Authority.

The basic task of a royal commission is and has been to establish publicly the truth of a particular matter given to it to investigate and report upon. A royal commission is frequently called upon to clear the air where there is apparent public scandal or considerable public disquiet. On the other hand, the basic role of the proposed Crime Authority - although there are others as well - will be to operate as another arm of the criminal investigation process, gathering and assembling evidence ... A different kind of balance between powers and limitations on power is required, because what is involved is a very different kind of investigative body. [26]

Coordination

2.26 Given the national and international nature of organised crime, anything less than a national approach to law enforcement could be expected to fail. Australia's federal nature traditionally represented an inherent difficulty in this respect. The discussion in Chapter 1 has clearly demonstrated that the police services and its other partner agencies have come to see the coordination of law enforcement effort on a national level as a key role for the NCA.

2.27 The NCA submission described this part of its role in the following terms:

The NCA's role as operational coordinator involves the facilitation and integration of diverse operations conducted by a range of agencies against organised crime syndicates of national significance ... It involves the integration of other agencies' operations into a unified national effort by actively promoting more effective communication and information sharing, and with the NCA making available to those agencies its special powers and investigative, analytical and technical expertise. This rationalisation of effort provides a coherent investigative approach to matters of national concern. [27]

2.28 The PJC is aware that there were initial concerns about the NCA's activities based on its approach that any trans- or multi-jurisdictional criminality which fitted within its statutory purview was its sole preserve. In retrospect, it is clear that in recognition of its five-year sunset clause, it was anxious to quickly get results to both justify its establishment and prove the case for its continuation. This period of its being a `ninth police force' appears to have passed into history. [28]

2.29 The NCA submission also added that:

The NCA was never envisaged as a stand-alone agency ... The reality is, of course, that cooperation between law enforcement agencies in complex and difficult areas like the investigation of major organised crime is sometimes difficult. To consistently achieve effective cooperation requires hard work. Knowledge, trust and understanding are necessary for agencies to commit substantial resources to relatively long term projects, with sometimes uncertain outcomes. These factors can only come from a maturity of attitude and in the working relationships of all parties. Only then is there the preparedness to share information - a vital ingredient in law enforcement ... [29]

2.30 As Ms Betty King QC stated in noting her approval of its recent more cooperative approach:

It is far too small a body to be anything but a coordinating body. [30]

2.31 The submission of South Australia Police Commissioner, Malcolm Hyde, noted:

Much of its efficiency and effectiveness is dependent upon the cooperation afforded it by participating agencies involved in inter-jurisdictional and multi-disciplinary task forces. [31]

2.32 And, as the Queensland Police Service stressed:

... it is the States and Territories who are responsible for the management of the greater portion of the criminal justice system. [32]

2.33 As well as coordinating multi-jurisdictional task forces, the NCA is required to cooperate with both police services and those specialist regulatory bodies which have law enforcement responsibility. [33] The PJC took evidence from several of these regulatory bodies [34] that their involvement in NCA task forces and/or in intelligence sharing was productive and effective in adding value to the nation's anti-crime efforts. [35]

2.34 The ABCI, for example, submitted that:

... the NCA's greatest strength lies in its ability to harness the operational capabilities of Federal, State and Territory law enforcement agencies to a common end. [36]

2.35 Not surprisingly, the recognition of the importance of the NCA's role as a coordinating body and its acceptance by its partner agencies has been evolutionary. The problem of `patch' or `turfdom' in law enforcement had to be overcome and it has taken time for the NCA to gain credibility and the trust and the respect of its peers. This evolutionary perspective was effectively confirmed by the Queensland Police Service's submission when it noted that the NCA had previously neglected its coordinating role but that:

... the NCA's coordinating role is now accepted as its major strength ... To reduce the NCA's commitment, particularly the coordinating function, in an environment of scarce resources is fraught with danger. [37]

2.36 The NCA's submission drew together the full implications of its coordinating role in the following terms:

... [the NCA] is the only law enforcement agency capable of bringing together nationally coordinated strategic intelligence assessments involving not only the entire law enforcement community (Commonwealth, State and Territory), but all those government agencies and the public which have an interest in the assessments and their outcomes. [38]

And:

The NCA has firmly established itself and been accepted in this role, and will continue as an integral partner in identifying and prioritising national organised crime threats, and encompasses not only assessments or investigations, but dissemination of information/intelligence and identifying law reforms to reduce the opportunity for organised criminal activity. [39]

The management and analysis of intelligence

2.37 Criminal intelligence is insight gained from the analysis of information that provides direction for the planning and tactics used to make specific operational decisions. The NCA's tactical analysts provide dedicated analytical support to its investigation teams.

2.38 The NCA annual report states:

The NCA is committed to increasing the amount and quality of information and intelligence disseminated to other agencies. Organised criminal activity has become increasingly globalised and as a result considerable effort is made to maintain contacts with overseas law enforcement agencies ... Disseminated information includes allegations of criminal activity obtained in the course of investigations and/or from members of the public, material relevant to investigations (and prosecutions) by other law enforcement agencies and strategic intelligence assessments. [40]

2.39 The PJC received comment about the NCA's role in the management and analysis of intelligence from the Australian Bureau of Criminal Intelligence (ABCI) and the Australian Transaction Reports Analysis Centre (AUSTRAC), each of whom provides a database of intelligence for use by agencies with law enforcement responsibility. The ABCI was established in 1981 by the Australian Police Ministers' Council as one of the `common police services'. Its role is solely of information collection, analysis and dissemination. It has no operational arm and is reliant on its stakeholders, the eight police services of Australia, and other operational agencies, including the NCA, for its effectiveness. It described its responsibility as:

... the establishment and management of an information data base for use by all law enforcement agencies. [41]

2.40 AUSTRAC described itself as a federal agency established to facilitate the administration and enforcement of laws by collecting Financial Transaction Reports, analysing information provided on those reports and, where appropriate, disseminating the information to law enforcement and revenue authorities, including the NCA.

2.41 AUSTRAC provides and maintains a database of financial transactions, and conducts some initial analysis. The NCA, on the other hand, undertakes the more complex analyses, either by directly accessing the AUSTRAC database or by developing AUSTRAC's initial analysis. Mr Frank Costigan provided an illustration of the differences between the intelligence analysis roles undertaken by AUSTRAC and the NCA:

The NCA would have access to the kind of information that AUSTRAC can have, but would also have the ability, if information from AUSTRAC indicated that a branch in a northern suburb in Melbourne was the recipient of a lot of suspicious money, to call in the bank manager, …The NCA would also have access to reports of investigative policemen in task forces who are going beyond the money but colouring the scenario.

So we know this money is going through; we have AUSTRAC material that evidences that. But we also have this other evidence. We have had some evidence from Mr X who tells us he knows Mr Y and Mr Y has been doing some funny things, so you go to Mr Y's bank account. It is a collection of individual pieces of information and that is where you need the analysis: where you have got people trained in analysis, putting it all together and conceptualising what is going on. [42]

2.42 The ABCI indicated a concern about its relationship with the NCA. It submitted that:

... the ABCI believes that [the NCA's] commitment to facilitating the collection and dissemination of its intelligence nationally could be improved by changes to work practices and by utilising the existing Australian Criminal Intelligence Database (ACID) maintained by the ABCI ... [43]

2.43 Mr Broome explained that the NCA maintains and manages its own database because there are no discrete levels of access to ACID. He said that the reason why the NCA, among others, does not contribute all of its intelligence to ACID was because:

... the material on the ACID database is available to anybody who can plug into the system, from the local officer at Kununurra to the CIB in Sydney. [44]

2.44 The compromising of NCA operations by making its intelligence holdings too readily available, perhaps to corrupt officers, was clearly a concern for Mr Broome. ABCI Director Mr O'Neill indicated to the PJC that he saw no reason why NCA intelligence should not have the same protection from general access on ACID as it does on the NCA's own system. He said:

To give you an example, if the New South Wales police were doing a covert operation they could use the ACID database but they can caveat it to the extent that no person other than members of that operation would have access to it, notwithstanding that it is the ACID database. Even the NCA can do that, and they have done it. The operation remains totally within the control of the commander of that operation till the matter is finalised, even through court and an appeal. Then we say, `Open the caveat wherever possible other than to cover protected witnesses, et cetera, so that information is allowed to be looked at by people who need to look at it. [45]

2.45 Mr O'Neill also submitted that the ABCI had made an important contribution to the integration of the nation's criminal intelligence by acting as:

... an intelligence repository for those 95 per cent of crimes [handled by the State and Territory police services] ... If we did not exist, then we would go back to the pre-1980's when the States only talked to each other if they felt like it. [46]

2.46 The ABCI submission strongly asserted its view that:

... the NCA should make its entire intelligence holdings available through the ACID database. [47]

2.47 Its submission maintained that this view is consistent with the NCA's Corporate Objectives, as well as the intention and the spirit of the NCA Act which, respectively, require the Authority to:

foster the development and exchange of information and intelligence ... for the benefit of Australian and overseas law enforcement agencies engaged in counteracting organised crime (NCA Annual Report 1995-96, p. 15) and
collect and analyse criminal intelligence relating to relevant criminal activities and disseminate that information and intelligence to (inter alia) law enforcement agencies (NCA Act, s.11(1)(a)). [48]

2.48 According to Mr O'Neill, the NCA does not disseminate its information for inclusion in the ACID database on the reasoning that section 11(1)(a) of the NCA Act does not apply to the ABCI since the ABCI is not a `law enforcement' agency. [49] Mr O'Neill stated that the NCA claims that its relationship with the ABCI is prescribed only under section 12(2), which refers specifically to the ABCI, as it requires the Authority to `cooperate and consult with the Australian Bureau of Criminal Intelligence'. Mr O'Neill noted that:

... there is a definition of what is `consult and cooperate', and it does not include passing on information. [50]

2.49 Addressing the NCA's position on this issue, Mr O'Neill submitted that:

... if section 11(1)(a) does exclude the ABCI, then it should be amended to include us, because I think the spirit of the function of the ABCI is to be a single, national intelligence repository, and we do not need others growing up around us in this day and age when there are money constraints. [51]

2.50 As clause 10(a) in the 1983 Bill, current section 11(1)(a) required the NCA to perform its intelligence collection, analysis and dissemination function `in cooperation with the Australian Bureau of Criminal Intelligence'. [52] The Senate Standing Committee reporting on the Bill subsequently took the view that clause 10(a) looked as if `in cooperation with the ABCI was a condition precedent' to the NCA's intelligence function. The Government of the day accepted the Standing Committee's recommendation that the Bill be redrafted to ensure that the NCA could conduct its intelligence analysis and dissemination function alone, so that the need to cooperate generally with the ABCI was inserted as a separate clause [53] (which became section 12(2), the section apparently relied on by the NCA to limit its relationship with the ABCI).

2.51 This issue has been the subject of tension for some years now, as evidenced by the recommendation in the PJC's last evaluation report that `there be a continuing review of the potential for duplication of intelligence functions between the Authority ... and the Australian Bureau of Criminal Intelligence'. [54]

2.52 Indications are that neither the AFP nor the State police agencies are entirely happy with the NCA's intelligence sharing arrangements. The AFP invited the PJC `to support proposals directed at optimising the most appropriate uses of intelligence product'. In this context, it submitted that:

With diminishing resources, there are significant advantages to seeking an effective electronic bridging arrangement to enhance the exchange of intelligence data between the AFP and the NCA within existing privacy provisions. [55]

2.53 Expressing its view on behalf of the States, the Report on the Future Strategic Role of the NCA in State Law Enforcement Systems found that there was:

Lack of cohesion in the intelligence network ... There are fine professional people working in the various areas but the collaborative approach has been tentative because of some lack of purposeful drive from the principals in the law enforcement network to make it happen ... (a)ny lack of drive by the principals does not come from any want of personal commitment but because the existing national structural arrangements are unsuitable. [56]

2.54 The submission by the Queensland Minister for Police expressed the view that:

When the NCA was first conceived, it was intended that it would complement the Australian Bureau of Criminal Intelligence (ABCI) which would act as its intelligence arm (Stewart 1980:234). However, this never eventuated and the NCA developed its own intelligence capacity, including an intelligence database CAESAR ... the ABCI, as the only national (as opposed to Commonwealth) criminal intelligence agency, must be recognised as such and permitted to take its rightful place alongside the NCA, as its intelligence arm, providing a direct link between that organisation and State and Territory police services. [57]

2.55 At the PJC's final hearing the opportunity was taken to seek advice from Mr Broome about the current status of the `competing database' issue. He informed the PJC that while some agencies had elected to use ACID and the ABCI's computer system as their basic internal management computer system as well as their intelligence database, the major police services had not. He added:

The Standing Committee on Organised Crime and Criminal Intelligence as part of its charter from the relevant governments is looking at ways in which we can enhance the value of the ABCI. It is a current activity which we are undertaking ... Out of that work ... we will see a much better framework not only for the NCA's capacity to work with ABCI but also all the other law enforcement agencies. [58]

2.56 The PJC is reassured that, with SCOCCI's involvement, this problem can and will be overcome.

Strategic intelligence assessment

2.57 Strategic intelligence is insight that provides direction for plans and strategies to achieve ongoing organisational objectives. The Commonwealth Law Enforcement Review (CLER) report recommended that:

The NCA undertake strategic intelligence assessments on behalf of the Commonwealth, the States and the Territories. Such assessments … analyse the structure, characteristics and operating methods of criminal groups of national significance, and the nature and extent of national markets for illegal goods and services. [59]

2.58 It is understood that this recommendation was agreed to by the Government and implemented. The CLER report nominated 11 areas where the NCA should have a strategic and/or coordination role. [60] This list became known colloquially as the NCA's `menu of work'. Since the 1994 release of the CLER report, the NCA has progressively undertaken the requisite intelligence assessments, none of which have been published outside the law enforcement agencies because of their intelligence value.

2.59 The NCA described its role in strategic intelligence assessments in this way:

The NCA's activities in relation to these priority areas of investigation go beyond the simple coordination of activities by other agencies. This involvement is not only operationally focused, but also strategically oriented in an endeavour to establish the structure of criminal groups involved in these criminal activities, the membership of those groups, and to target the most significant and higher level persons within those criminal groups, all with the objective of disrupting and counteracting their activities in the short and long term. [61]

2.60 The quality of any strategic intelligence assessment depends upon the quality of the intelligence upon which it is based. Thus the Authority is reliant on forming trusted relationships with the police services and other law enforcement agencies in order to ensure its access to all relevant information. It is for this reason that Mr Broome said:

Every assessment we do is widely circulated to partner agencies. They are given every opportunity to comment on it and to provide additional information. If they challenge the assessments, we say, `Why do you do so? Where is the evidence you have?' and [if necessary] we adjust the result. [62]

2.61 In conjunction with the AFP and the ABCI, the Authority is currently conducting a strategic assessment of the Australian criminal environment in order to provide a context for evaluating and formulating national law enforcement policies, priorities and strategies. Mr Broome commented on the resultant level of cooperation between the agencies involved:

We have worked very closely with those agencies. ... We complement each other, we use our respective skills and information bases, and we produce a product which at the end of the day is useful to the whole Australian law enforcement community. [63]

2.62 Criminologists Drs Stephen James and Adam Sutton suggested that some reorientation of the NCA's strategic assessment role might be beneficial. In relation to the drug decriminalisation debate, and in pursuit of refining the harm-minimisation model, Drs James and Sutton saw merit in the NCA accumulating `an understanding of market forces' involved in drug-taking in Australia. Accordingly, the aim of such an assessment would be to find out who is using what drug, which drug is most harmful and which groups are most at risk. [64]

Access to Special Powers

2.63 The NCA's access to special powers highlights the way that part of its role is to add value to the nation's law enforcement effort. Its submission noted:

Because the NCA's priority areas of investigation are the subject of ministerial references, the NCA can exercise its coercive powers in conducting those investigations. This is an important additional factor which dictates against the NCA merely duplicating the activities of other law enforcement agencies, because the NCA's policy is that it would not seek references other than in relation to those matters where it has the capacity and it is appropriate and necessary to use its coercive powers. Otherwise such investigations may well be better undertaken by State agencies alone. [65]

2.64 While some concern was expressed about intrusion into civil liberties of the NCA's special powers, the evidence from law enforcement agencies was overwhelmingly in support of the benefit to the nation's efforts to combat serious crime of having an anti-organised crime body with access to coercive powers. The South Australian Police Service, for example, submitted that these powers of the NCA:

... have been shown to be the most valuable investigative tool of recent times. [66]

2.65 The Victorian Government submission described how these powers have helped the national effort:

It is the very nature of organised crime that the leaders isolate themselves as far as possible from the criminal activity while enjoying the profits and the power. Traditional law enforcement methods have proven ineffective in tackling such structures. It is through utilisation of [inter alia, use of special investigative powers through organisations such as the NCA and State Crime Commissions] co-operative efforts with the NCA have proved an unparalleled success. One of the current strategies of the Victoria Police is to have the NCA (Melbourne) conduct specific hearings and use its other “special powers” to “get behind” the structures, both organisational and financial, of organised criminal groups. ... The Victoria Police support the continued use of these strategies. [67]

2.66 The AFP submission added that the nation's law enforcement efforts have been:

... assisted by the NCA's valuable special (coercive) powers which are not available to traditional law enforcement agencies. These powers have enabled the NCA to better investigate complex areas of criminality such as the structure and methods of operation of Colombian cocaine syndicates. The powers have also helped by providing improved access to taxation and banking records which among other things, can be crucial to recovering any proceeds of crime. [68]

Role in enforcing the law

2.67 The conduct of investigations is central to the NCA's role so that, at the end of the day, criminals - especially major criminals - are charged and brought to justice for the offences they have committed.

2.68 The NCA establishes a multidisciplinary team for each investigation. That team is made up of a combination of lawyers, financial analysts, intelligence analysts and investigators. The investigators are generally police officers seconded to the NCA. The other professionals are among the 200 staff of the NCA across Australia. Experts from other agencies may be seconded to the team as appropriate.

2.69 Operation Cerberus, for example, had been an unprecedented attempt in Australia to combat an organised crime problem at both a national and state level on a cooperative and coordinated basis. It was the first national task force [69] established to address the issue of Italo-Australian organised crime. Fourteen other agencies participated in the Task Force, including agencies such as AUSTRAC, the Australian Taxation Office and the Department of Immigration and Ethnic Affairs. [70]

2.70 Having gathered necessary evidence and charged the suspects, the NCA presents a prosecution brief to the Commonwealth or State Directors of Public Prosecutions (DPP) as appropriate. The DPP prosecutes the case in court.

2.71 Concern was expressed to the PJC that the NCA's joint functioning within both the inquisitorial and the adversarial systems has led to conflicting and confused perceptions about its investigative role. Former NCA Member, Mr Malcolm Gray who represented the South Australian Bar Association at the PJC's public hearing, described the component parts of the NCA's involvement in the law enforcement spectrum in the following terms:

There are really three stages in relation to overall law enforcement: [the NCA] starts off by investigating a matter ... in a broad and general sense. Out of that investigation will come some evidence, intelligence or information as to the commission of offences. The commission of offences requires enforcement, usually by law enforcement bodies. That is where State police forces come in to enforce the law. Following upon that enforcement is, at the end of the day, the prosecution of those offences. [71]

2.72 The Association submission argued that `attention be given to clearly articulating the role of the NCA in the investigation/law enforcement spectrum'. [72]

2.73 There were also suggestions by a number of witnesses that the NCA's role should be confined to that of a standing royal commission. [73] The supporters of this view believe that the NCA's role in law enforcement should be confined to intelligence gathering and analysis, strategic assessments and the like. This view tended to be related to the witness's interpretation of parliament's original intentions [74] or, more often, inferred from the Authority's inquisitorial role based on its access to coercive powers. [75] This view was summed up by Ms Betty King QC when she said:

It is set up to be an investigative organisation, such as royal commissions are. [76]

2.74 Mr Craig Caldicott, representing the Law Society of South Australia, described the practical implications of this approach as:

... once they [the NCA] have finished their investigation or got to the stage where they suspect the person has committed an offence, they should pass that material [to the appropriate police service or DPP]. [77]

2.75 In a similar vein, Mr Costigan submitted that, by actually being involved in enforcing the law, the NCA had `completely misconceived its role'. [78] The royal commission model argued by Mr Costigan and others assumes that the Authority's investigative role is incompatible with a policing role of enforcing the law. The enforcement role of the police is in bringing offenders to justice. As the investigators in the criminal justice system, the police must ensure that the prosecution has sufficient evidence, properly obtained, to make a case against the accused. In this respect, the police have a clear responsibility not to operate in any manner which would undermine the prosecution.

2.76 By comparison, a royal commission has no concern for undermining potential prosecutions in the conduct of its proceedings. Any person who might incriminate themselves by giving information to a royal commission is automatically immune from having the evidence later used against them in criminal proceedings. [79] Royal commissions have no responsibility for collecting admissible evidence.

2.77 The argument is that the inquisitorial model is so distinct from the adversarial system as to be incompatible in the same organisational structure. A perception persists, particularly among witnesses from the legal fraternity, that the NCA's inquisitorial powers render it incapable of having a proper role in law enforcement. Proponents of this view mostly argued that it would be duplicating police work on those `occasions upon which an arrest [was being] made by an officer of the National Crime Authority'. [80] This argument is founded on the proposition that, if the NCA is not confined to a royal commission-like intelligence function, then it must be regarded as duplicating (or potentially duplicating) police work.

2.78 While lawyers may see a theoretical conflict between the roles, the PJC accepts the advice of the NCA's partner agencies that there are considerable benefits to the criminal justice system from the NCA's uniquely combined role. Rather than there being conflict between the two roles, the PJC sees synergies.

2.79 The assertion that the NCA has no proper role in enforcing the law assumes that there is a point at which identifiable offences emerge from the NCA's inquisitorial and/or intelligence activities and, at that point, the matter can be effectively handed over to police services. The practical implication of this approach is that a completely new group of investigators would have to be provided with a brief of sufficient precision and clarity to enable their finalisation of the matter. They in turn would have to collate the assembled evidence and provide it to the prosecutor. While the NCA and its partner agencies continue to work successfully in close cooperation, such a bureaucratic process seems unwieldy. The PJC is firmly of the view that the NCA has a role in enforcing the law in those matters which, by virtue of their sophistication or organisation, are too difficult and complex for traditional police investigations. NCA task forces should therefore continue to pursue investigations through to the final hand-over of evidentiary material to the prosecuting body on completion. In this way, its multi-jurisdictional status is enhanced.

2.80 Given that arguments about the NCA's proper role persist to this day, there is a suggestion that the NCA's role is in need of better articulation in its enabling legislation. The PJC rejects the argument that the NCA's investigative role should be restricted to any of the component parts of the law enforcement process. The PJC is recommending below the introduction of a clear statement of the NCA's role in its Act.

No Role in Prosecution

2.81 Like any other law enforcement agency the NCA has no role in prosecution:

... we [the NCA] are never parties to the prosecution in the sense of being the prosecutorial agency. [81]

2.82 The statutory requirement to assemble admissible evidence provides the NCA with the authority to go only so far as to:

… produce a brief of evidence and to provide it to independent prosecutorial services who will decide whether charges proceed, and, if they will, what the charges should be. [82]

2.83 The importance of the decision to prosecute cannot be underestimated because `(i)t has never been a rule in this country ... that suspected criminal offences must automatically be the subject of prosecution'. [83] The Prosecution Policy of the Commonwealth describes the importance of this decision in the following terms:

The decision whether or not to prosecute is the most important step in the prosecution process. In every case great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice system. [84]

Trans-jurisdictional role

2.84 The Queensland Police Service submission pointed out how the Authority was unique in having a role in matters crossing two or more criminal jurisdictions. It said that `Most criminal activity addressed by the NCA is not within the legislative competence [of the AFP or any State police service]' nor, the submission added, `is it likely to be'. [85]

2.85 The South Australia Police submission also noted that:

The Authority needs to be seen as the supreme, independent entity responsible for ... investigations into serious, inter-jurisdictional, criminal activity. [86]

2.86 It is clear from the discussion in Chapter 1 in relation to its coordinating role that, from the perspective of Australian law enforcement agencies generally, the NCA's ultimate worth rests in its trans-jurisdictional status.

2.87 Mr Costigan provided an example of the kind of multi-jurisdictional crime which the NCA was set up to counter:

... parliaments needed to look very cleverly at major criminals - white collar and otherwise - who ensured that their activities spanned national and State boundaries ... So you found that, as a matter of deliberate practice, someone in Victoria would set up a company in Queensland which operated in Western Australia which had bank accounts in Hong Kong and which had operations in Bangkok. [87]

2.88 The Authority's trans-jurisdictional role raises the question of whether or not it should have any involvement in intra-State matters. For example, it was submitted that the Authority should have a role in becoming a quasi national anti-corruption commission. The Hon. Mike Rann MP, Leader of the Opposition in South Australia, one of the States which has not chosen to establish its own anti-corruption body, outlined a scenario involving possible corruption in his State, which he regarded as being of the kind which could not be effectively dealt with by ordinary police services [88] and, therefore, arguably an appropriate matter for the NCA's investigation.

2.89 The Authority is not proscribed from investigating crime within one jurisdiction. The total resources of the NCA, however, represent only one per cent of the total resources invested in Australia's law enforcement efforts. [89] Inevitably it must prioritise the use of its resources to seek to provide maximum operational benefit to the national interest. This, in the PJC's view, is by addressing cross-jurisdictional matters. The failure of a State to establish appropriate anti-corruption mechanisms is a matter for local political debate. The NCA may indeed be able to fill this void at a considerable discount to the State concerned and, while it has done so in the past in South Australia with mixed results, [90] the PJC believes that the NCA should not become involved in matters confined to one State, except by mutual agreement and on a fully funded basis.

2.90 A related issue was raised by the South Australian Bar Association which submitted that some investigative work conducted by the NCA may have been work which could have been undertaken by State police. [91] Evidence from the Victoria Police Service, furthermore, revealed that the NCA had conducted financial analysis for the State police because its major fraud squad could not be persuaded to act promptly to attend to the work required. [92] The PJC does not see it as necessarily undesirable that the NCA undertakes normal police work for its own purposes when it is unable to be done for any reason by the partner State or Territory police service.

Area of inquiry

2.91 The NCA's area of inquiry is prescribed by the statutory definition of `relevant criminal activity'. [93] This is in turn based on a `relevant offence', which is defined as an offence that:

(a) involves 2 or more offenders and substantial planning and organisation;

(b) involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques;

and

(d) involves theft, fraud, tax evasion, currency violations, illegal drug dealings, illegal gambling, obtaining financial benefit by vice engaged in by others, extortion, violence, bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory, bankruptcy and company violations, harbouring of criminals, forging of passports, armament dealings or illegal importation or exportation of fauna into or out of Australia, or that involves matters of the same general nature as one or more of the foregoing, or that is of any other prescribed kind;

but ... [inter alia] ...

(g) does not include an offence that is not punishable by imprisonment or is punishable by imprisonment for a period of less than 3 years. [94]

Discussion of `relevant offence' provision

2.92 The PJC notes that the definition of `relevant offence' is generally regarded as an attempt to define organised crime. [95] Mr Broome, for example, said:

... organised criminal behaviour, if I can use that term as shorthand for what the Act describes as `relevant criminal activity'. The Act does not talk about organised crime. [96]

2.93 Mr Broome expressed the need for having `some clear parliamentary indication of the area of work we should undertake' [97] and he added:

... [the NCA] should not be seen ... to investigate ... something which is serious criminal behaviour which is quite clearly outside the whole underlying rationale for the Authority. [98]

2.94 The Authority has, however, been subjected to strong criticism exactly on this basis. For example, well-known author and researcher, Mr Bob Bottom said:

Under [ex-NCA Chairman Justice] Phillips in particular, the hijacking of the focus of the NCA away from organised crime to trendy notions of white-collar crime, a task supposedly the domain of the Australian Securities Commission, represented the betrayal of ... ordinary citizens ... [99]

2.95 As cited above, the NCA's area of inquiry is based on a list of sixteen different offences ranging from violence to company violations and bankruptcy, to illegal dealing in Australian fauna. Mr David Grace QC, representing the Victorian Law Institute, conveyed his impression of the range of possible `relevant offences' by describing them as a list of offences which could range from `selling aspirin to gun running'. [100] Even without this slight hyperbole, it is unarguable that the Authority's currently prescribed area of inquiry leaves room for debate about whether or not certain criminal activity is outside the NCA's focus, which leaves it open to being accused of misdirecting its resources according to `the whim of management'. [101]

2.96 As reflected in Mr Bottom's view cited above, the NCA's involvement in investigating white-collar crime [102] is a prime example of an activity which appears to be encompassed by the definition but has attracted much debate about whether or not investigations into white-collar crime were outside the NCA's underlying rationale. In complete contradiction to that of Mr Bottom, for example, was the view of Mr Marshall Irwin representing the Queensland Bar Association who said that the `areas are so interrelated' that white-collar crime was a `legitimate' area of inquiry for the NCA because:

... the people who are involved in drug trafficking, for example, may also be involved in other conduct that might also be properly regarded as white-collar crime ... [103]

2.97 The issue of white-collar crime has been presented here as the clearest example of the lack of clear guidance from the statute. While the ASC has the primary statutory authority for examining matters which could broadly be described as white collar crime, the NCA's ambit should continue to encompass any criminal activity which is of a trans-jurisdictional, systematic and complex nature. The PJC perceives the need to amend the NCA Act to clarify the NCA's area of inquiry in unambiguous terms, in order to avoid the criticism that has been levelled at it in the past for its involvement in such matters as Operation Albert.

2.98 It is apparent that the NCA has been given responsibility for investigating a menu of areas that is beyond the capacity of its relatively small size and budget, which leaves it open to pressure to either focus on a particular activity at the expense of others, or shift its focus away from matters that are not yet complete. Such problems would be less likely to arise if the statute better clarified the NCA's area of inquiry and its precise role in the nation's law enforcement efforts.

2.99 A small organisation needs to be tightly focused. However, in summing up the submission of former NCA member, Ms Betty King, which she acknowledged as correct, PJC Chairman Mr John Bradford noted:

... the different Chairs of the Authority have basically driven it into the direction of their main interests. Peter Faris's interests seemed to be in white-collar crime, Justice Phillip's interest was in conferences and collaborative work, and Tom Sherman was interested in organised crime. But the NCA was established to fight organised crime, however defined. [104]

2.100 As noted by former NCA lawyer, Mr Garry Livermore:

... the direction of the Authority changed and three-year plans and five-year plans were thrown out the window and new ones were developed. The Authority effectively changed its priorities and turned away from white-collar crime and that had a dramatic impact upon the support that the NCA was able to give to the prosecutor in the Elliott case. [105]

2.101 In general terms, these changes in focus are an almost inevitable and natural consequence of a situation where an organisation's mandate is either too unclear or too broad for the size of the operation. This situation represents a particular problem in an organisation like the NCA where staffing has to be tailored to the organisation's main activity and, for example, a sudden shift away from `white collar crime' raises the question of finding relevant work for all the financial investigators who were recruited under the previous regime.

2.102 Its operations may also involve it in investigations for long periods into the activities of well-resourced targets. The AFPA revealed an example of the scale and extent of these criminal organisations which included (inter alia) the purchase of `a 600 tonne ship'. [106] The people who control organisations of this scale are the sort of people Mr Melick an NCA member, would have had in mind when he said:

... if you have got the money - and it takes millions of dollars - you can protract the system as long as you like. [107]

2.103 In this situation, what is needed in an organisation is certainty, not uncertainty. Further, the more ambiguous and complex the legislation, the more technical will be the available arguments. As explained in the Authority's Annual Report:

The nature of our work means that there can be advantages to those who are the subject of investigations in prolonging the process of legal challenge as far as possible. Many have the capacity to do so, even where there is little prospect of success. The NCA Act is in many respects unnecessarily complex and invites legal challenge directed much more to form than to substance. [108]

2.104 The PJC agrees with the words of Mr Malcolm Gray [109] that:

... the present definition is cast in such terms as to be really meaningless as to what the particular activity is that the Authority is investigating [110]

and that the potential for legal challenge to the NCA's pursuit of its statutory duties is clearly facilitated by the complexity of the Act, [111] including the ambiguity of the current definition.

Problems with the offence-based definition

2.105 The PJC's concerns with the offence based definition of `relevant offence' are twofold. Firstly, the use of listing as a drafting technique may serve to inhibit the NCA's ability to react to, and investigate new offences. Secondly, the restrictive definition of `relevant offence' has wider implications in relation to the use of the NCA's coercive powers.

Listing

2.106 Definitional approaches which rely on listing, either in whole or in part, risk being overtaken by developments which trigger the emergence of new forms of criminal activity unforseen at the time of drafting the legislation. The definition of `relevant offence' gives the NCA jurisdiction over matters which, amongst other things, must fall within the list of `relevant offence' set out in paragraph (d) of the definition. The only exception, as set out in section 4(2), is where the NCA suspects the commission of an offence which may be directly or indirectly connected with a relevant offence as defined in section 4.

2.107 The offence of money laundering exemplifies the difficulty with the listing technique. Money laundering is not one of the listed offences within the definition of `relevant offence'. Therefore, in accordance with section 4(2), the NCA is only authorised to investigate money laundering where it suspects that it may be directly or indirectly connected with activity involving the commission of a defined and listed relevant offence. Clearly, the listing of offences within the definition has the effect of curtailing the investigative capacity of the Authority which, it is acknowledged, may have been the intention of Parliament. Nonetheless, an unintended conequence of the listing technique is that it renders the Authority unable to investigate new forms of criminal activity, unless it can connect it with another offence prescribed by the definition.

Restriction on Powers

2.108 Another implication of the offence based definition is that it restricts the use of the Authority's powers. Money laundering again illustrates this issue. Often NCA investigations aim to follow the money trail to find out whether there is an association with some sort of criminal activity and, if so, to discover what type of offences are involved. [112] The importance of this type of investigation was highlighted by Mr Costigan who said:

At the end of the day, no matter what the criminal activity ... the aim is to get money. Having got the money, you do not want to give it back to governments … so you have to launder it. There would be no criminal activity which would justify the NCA getting involved which did not require ... following the money trail … because the more you can follow the money trail and see where the money has gone, the more you get an insight into who really is … [behind it all]. [113]

The significance of the money trail to NCA operations, therefore, cannot be underestimated.

2.109 The NCA must be able to affirm or assert as true the existence of a `relevant offence' before the IGC may refer the matter for a special investigation. [114] The offence based definition of 'relevant offence', however, clearly requires the NCA to identify a predicate offence before it can investigate using its coercive powers. The submission of the NCA stated:

... the NCA cannot investigate suspicious financial transactions which may or may not constitute money laundering, unless it is able to connect that activity with predicate criminal activity. [115]

2.110 The logic of this whole situation was effectively challenged by Ms Montano when she said:

If you knew where it [the offence] was, you would not need to look at the financial transactions; you would know where the activity took place and you could work the normal way through. [116]

2.111 The PJC notes the suggestion in the NCA submission [117] (and the similar views expressed by Mr Melick [118] and Mr Costigan [119]) that:

This difficulty is perhaps best addressed through an amendment to the NCA Act ... Such an amendment would need to not only include money laundering within the definition of relevant criminal activity, but also authorise the use of coercive powers without the identification of a predicate offence. [120]

Evaluating the NCA

2.112 The PJC has addressed above the arguments for the NCA's role and functions to be clearly defined by the statute. Another important consideration is how the assessment of the NCA's performance would be assisted by bringing clarity in these respects.

2.113 As was submitted by the South Australian Bar Association:

... without a clear articulation of its [an organisation's] role, it is not possible to assess its effectiveness nor, in the case of the NCA, is it possible to assess the appropriateness or otherwise of any special powers granted to it ... (m)uch of the lack of direction and confusion ... is the result of lack of defined objectives, guidelines and expectations in the legislation itself. [121]

2.114 Critics of the NCA will make judgements about its effectiveness on the basis of what they think the NCA ought to be doing. When its role is not entirely clear, there is a real risk of its performance being assessed against inappropriate or irrelevant criteria, leading to unfounded criticism. `The impact on staff morale of unfounded or misinformed criticism' [122] naturally impacts negatively on the Authority's effectiveness.

2.115 The PJC concludes that while the Authority's multi-jurisdictional role is clear, there is a need to clarify in the legislation both the nature of its investigative role and its area of inquiry.

2.116 The PJC notes that certain Commonwealth statutes incorporate a specific section called `Object of Act' which clarifies the overall purpose behind the establishment of the respective statutory body. [123] It is the view of the PJC that if such a clear role statement were to be inserted into the NCA Act it would provide a sound basis for future comment on the NCA's performance, rather than the current confused situation and it is making an appropriate recommendation to this effect below.

SUMMARY

Nature of investigative role

2.117 It has been thirteen years since the NCA was established to `counteract organised criminal activity and reduce its impact on the Australian community in partnership with other agencies'. [124] The NCA has submitted that it was established to address the following problems in the nation's law enforcement efforts:

a fragmentation of effort, exacerbated by jurisdictional boundaries;
inadequate specialist expertise and information management systems;
a traditional tactical focus geared towards apprehending individuals - rather than a holistic, strategic view of the nature and threat of organised crime;
the presence of corruption in elements of law enforcement; and
a lack of coercive powers. [125]

The establishment of the NCA has addressed each of these problem areas though its evaluation, a process which is still continuing. In Table 2 the PJC has sought to provide a summary of the Authority's roles.

Table 2- The role of the NCA as it adds value to the national law enforcement effort

No.	Perceived gap in law enforcement effort	NCA role (where it adds value)
1.	A fragmentation of effort, exacerbated by jurisdictional boundaries	Coordinate multi-jurisdictional task forces which have the capacity to bring to justice those criminals who are in control of organisationally and/or technologically complex operations.
2.	Inadequate specialist expertise and information management system	Become `a repository of necessary skills and knowledge and the technical equipment', especially to manage and analyse criminal intelligence. [126]
3.	A traditional tactical focus geared towards apprehending individuals - rather than a holistic, strategic view of the nature and threat of organised crime	Strategically assess intelligence and coordinate multi-jurisdictional task forces to implement those strategies that cannot effectively be implemented by an ordinary police service.
4.	The presence of corruption in elements of law enforcement	Create an operation which is sufficiently independent from traditional police service culture to evoke trust in its integrity for it to be accepted as a coordinator of task forces - of both police and specialist agencies with law enforcement involvement.
5.	A lack of coercive powers	Responsibly use special inquisitorial powers to investigate criminal activities that would otherwise remain concealed from view and/or shielded from prosecution.

2.118 The PJC acknowledges that its coordinating role is unarguably where the Authority adds the most value to the nation's anti-crime efforts. It is ironic that this role is its least recognised by its detractors, simply because its output is invisible in the quantitative performance statistics.

2.119 This analysis leads the PJC to conclude that clarification of the NCA's role is necessary. It therefore recommends:

Recommendation 3: That a clear statement of the role of the National Crime Authority be included in the statute as an objects clause.

2.120 The objects clause should reflect that the principal role of the National Crime Authority is to coordinate trans- and multi-jurisdictional task forces which have the capacity to bring to justice those criminals who are involved in organisationally and/or technologically complex operations.

2.121 The PJC also suggests that its other aims should be:

Acquire the necessary skills, knowledge and the technical equipment to be able to obtain and analyse intelligence.
Strategically assess intelligence, and coordinate task forces to implement those strategies that cannot effectively be implemented by ordinary police methods.
Create an institution which is sufficiently independent from traditional police service culture to evoke trust in its integrity for it to be accepted as a coordinator of multi-jurisdictional task forces.
Responsibly use special inquisitorial powers to investigate criminal activities that would otherwise remain concealed from view and/or shielded from prosecution.

Area of Inquiry

2.122 The PJC has concluded that a list of offences is an inappropriate statutory mechanism for prescribing the NCA's area of inquiry because:

it is logically inconsistent with the inquisitorial role implied by the Authority's special investigations and with its proactive, broad-ranging investigations; and
listings become out-dated with changes in criminal patterns.

2.123 It would seem that the most difficult part of defining the NCA's area of inquiry is to ensure that it is authorised to investigate any criminal activity that may be enabled by social, technological or regulatory changes in the future which cannot be envisaged today. New technology, for example, could facilitate criminal activity conducted by only one person but which, by virtue of its multi-jurisdictional nature and complexity, could not be addressed by ordinary police methods. [127] Such activity may not even, at first, be recognised as constituting serious offences but may instead have far-reaching negative implications which require sophisticated analysis to appreciate.

2.124 The PJC believes that it is unnecessary for the NCA's area of inquiry to be statutorily restricted by such concepts as `two or more offenders' or `punishable by imprisonment for a period of less than three years'. They add little to the clarity of the NCA's purpose, but are capable of being a source of unhelpful litigation. Given that the NCA's activities are constrained by budgetary restrictions, IGC references and the prioritising input of SCOCCI, such limitations should be removed from the statute and replaced by a more generalised statement.

Recommendation 4: That the area of inquiry of the National Crime Authority reflect that its role is to counter criminal activity which is systematic and complex and which may, but not necessarily, be trans-or multi-jurisdictional. Where the area of inquiry involves intra-state investigations, such inquiry should only proceed by mutual agreement with the relevant State or Territory and on a fully funded basis.

THE FUTURE

2.125 The PJC's several recommendations in this Chapter are based on clarifying the role and functions of the NCA to enable it to better undertake the tasks asked of it by unanimous decision of Federal, State and Territory governments in the early 1980s. It is, of course, restricted to investigating `relevant criminal activity', the current statutory terminology for `organised crime'. The PJC received representations that, after 13 years experience with the NCA, the law enforcement community may now be ready for it to make the next step: to a truly national law enforcement agency.

2.126 The Australian Federal Police Association (AFPA) noted that the concept of jurisdiction in law enforcement is increasingly irrelevant, as the priority becomes the counteracting of global crime. The NCA's 1996-97 Annual Report states, for example, that:

We can readily expect further shifts in technology which will open up considerable opportunities for criminal activity, including sophisticated frauds that may well be carried out on international targets by criminals who never enter the same jurisdiction as the victim. [128]

2.127 The AFPA submission stated:

The operational arm of the NCA could be developed as the precursor to a national criminal investigation resource, where State, Territory and Federal Police work on national trans-jurisdictional investigations. Not merely investigations of so-called organised crime delegated to it by politicians, but those that need a timely and appropriate multi-jurisdictional approach in the interest of the entire Australian community. This could include serial murders, serial rapes, sexual abuse of children and fraud, for instance, where Australian jurisdictions are irrelevant to the commission of the crime, but a serious impediment. [129]

2.128 While the AFPA represents AFP officers, who make up the bulk of NCA secondees and who could therefore be seen as benefiting from the Association's proposals, it was not alone in its views. The Queensland Police Service wrote:

The time has come to consolidate on the gains. The NCA must be allowed to operate as the nation's premier LEA with input and co-operation from all LEAs at a federal and state level ... consideration should be given to allowing the NCA to take on a wider brief ... The QPS supports a greater national and international co-operative role for the NCA. [130]

2.129 Mr Broome was cautious in responding to such calls:

I think our view is that we are quite content with the size of the patch that we have got and there is plenty of scope for activity within that [relevant criminal activity] definition. I note that a number of people who have given submissions to the PJC have suggested that perhaps it could be wider. My concern about that ... is that we should not be seen to be the body that is available to investigate something which is serious criminal behaviour which is quite clearly outside the whole underlying rationale for the Authority ... our task is not to be a general criminal investigation bureau. It is not to investigate those kinds of offences. I think it would have some deleterious impact with our relationship with other police services. [131]

2.130 Mr Chris Eaton, then National Secretary of the AFPA, illustrated the Association's submission with the example of the recent extortion of Arnott's Biscuits in New South Wales and Queensland. Both the company General Manager and the Queensland Police Commissioner had recognised that jurisdictional issues had intruded into the effectiveness of the inquiry, with the latter noting that `a single police response might work more efficiently'. [132]

2.131 The PJC recognises the federal nature of Australian law enforcement. The NCA has commendably broken down many of the jurisdictional barriers in its coordination role in relation to one aspect of serious criminality, organised crime. All parties, Federal, State and Territory, deserve credit for their contribution to the NCA's success in this respect.

2.132 The PJC is reminded, however, of a comment made to it by the Secretary-General of Interpol, Mr Raymond Kendall QPM, when he visited Australia in December 1996. In relation to the threat to global law enforcement by modern systems of electronic commerce, making use of telecommunications systems such as the Internet for money laundering and fraud, Mr Kendall had observed that such issues are often addressed by the passage of national laws when, essentially, only an international approach can work. International criminals are unconstrained by national borders.

2.133 The question must be asked: why do we in Australia continue to treat transnational crime, whether organised or not, as essentially a matter for State and Territory law enforcement when the criminals pay no regard to State and Territory borders? In a similar vein, the question must be asked whether the NCA has at its disposal all necessary powers for it to gain maximum advantage from cooperation with fellow law enforcement agencies at the international as well as national level, and the PJC notes with concern the indication in the submission of the Attorney-General's Department that the NCA Act may need clarification in this respect. [133]

2.134 The PJC strongly believes that the Governments of Australia, as represented by their membership of the IGC, should take the opportunity of this review to give serious consideration to the potential for an augmented role for the NCA in addressing national law enforcement problems where its coordination role and access to special powers could be beneficially used to the advantage of the relevant State and/or Territory law enforcement agencies.

2.135 To implement this option, all that would be required would be to define the NCA's area of operations broadly, with reference only to its trans- or multi-jurisdictional role and the continuing nature of the criminality (rather than the current emphases on `systematic' and `complex'). An example might be the issue of professional vehicle theft, in a process known as `rebirthing', which the Motor Traders' Association of New South Wales stressed is a national industry, with estimates of car theft costing the community in excess of $1 billion annually. [134] While the matter is being examined by a National Motor Vehicle Theft Task Force, with a secretariat in the Victorian Department of Justice, the PJC could envisage the NCA applying its proactive and multidisciplinary approach to good effect in this instance.

2.136 In reality, there may be little practical difference to the way the NCA would continue to operate in the future under this proposal. It would still be limited by its budgetary capacity and the need to prioritise its inquiries to the most pressing areas of criminality, especially organised crime activities in relation to illicit drugs. However, by removing its statutory requirement to only investigate organised crime, it could be invited by partner agencies to join them in other types of inquiries where it can add value to the investigative process.

Footnotes

[1] Mr Douglas Meagher QC, Senior Counsel, Royal Commission on the Activities of the Federated Ship Painters and Dockers Union, in a briefing note provided to the Senate Standing Committee on Constitutional and Legal Affairs on the National Crime Authority Bill 1983.

[2] Attorney-General, Senator Gareth Evans, Second Reading Speech on the National Crime Authority Bill 1983, Senate Hansard p. 2493.

[3] Evidence, 2.6.97, p. 390.

[4] Senate Standing Committee on Constitutional and Legal Affairs Report on the National Crime Authority Bill 1983 p. 1.

[5] Evidence, 2.6.97, p. 384.

[6] National Crime Authority Act, section 11(1).

[7] NCA Act, section11(2).

[8] NCA Act, sections 28 and 29. These powers tend to be referred to as its `special powers' and the term `special investigations' is used. They are discussed in detail in Chapter 4.

[9] NCA Act, sections 13 and 14.

[10] Note: Although when a matter is referred by a State Minister, the IGC's `approval' is required (section 14(3)), while a Commonwealth Minister need only `consult' with the IGC before referring a matter (section 13(2A)).

[11] NCA Act, section 11(1)(a).

[12] NCA Act, section 11(1)(c).

[13] NCA Act, section 11(1)(d).

[14] NCA Act, section 17(2).

[15] NCA Act, section 12(2).

[16] NCA Act, section 17(1). The Authority may also coordinate its activities with similar agencies overseas (section 17(2)).

[17] NCA Act, section 12(3).

[18] Senator Gareth Evans, Second Reading Speech p. 5; and included in the NCA Act as section 12(1).

[19] Evidence, 22.5.97, p. 274.

[20] ibid. p. 5.

[21] NCA Act, section 28.

[22] Senator Gareth Evans in the Second Reading Speech, Senate Hansard, 10.11.83, p. 2943.

[23] ibid.

[24] NCA Act, section 3. The issue of self-incrimination is discussed in Chapter 4.

[25] The question of whether it is more appropriate for the NCA or for the prosecuting authority to be the indemnifying body is discussed in detail in Chapter 4.

[26] National Crime Authority Bill 1983 Second Reading Speech: Senate Hansard, 10.11.83, p. 2493.

[27] Evidence, 22.5.97, p. 283.

[28] In 1988, the PJC heard many witnesses express concerns that the Authority had come `to resemble a 9th police force' because of the `visibility' and `prominence' of police officers seconded to the NCA who `would interview, arrest and charge people': An Initial Evaluation, p. 63.

[29] Evidence, 22.5.97, p. 283.

[30] Evidence, 21.10.96, p. 12.

[31] Evidence, 19.6.97, p. 537e.

[32] Evidence, 21.5.97, p. 121.

[33] NCA Act, sections 11(1)(a), 12(2) and 17(1).

[34] Australian Tax Office, evidence 23.6.97; Australian Bureau of Criminal Intelligence, evidence 26.5.97; Australian Transactions Reports and Analysis Centre, evidence 22.5.97; Australian Securities Commission, evidence 22.5.97.

[35] The ABCI was critical of the NCA's intelligence sharing arrangements which are discussed in detail later in this Chapter.

[36] Evidence, 26.5.97, p. 315.

[37] Evidence, 21.5.97, pp. 118 and 121.

[38] Evidence, 22.5.97, p. 281.

[39] Evidence, 22.5.97, p. 284.

[40] NCA Annual Report 1996-97, p. 19.

[41] Evidence, 26.5.97, p. 316.

[42] Evidence, 4.6.97, p. 495.

[43] Evidence, 26.5.97, p. 316.

[44] Evidence, 8.10.97, p. 1179-80.

[45] Evidence, 26.5.97, p. 324.

[46] Evidence, 26.5.97, p. 320.

[47] Evidence, 26.5.97, p. 316.

[48] ibid.

[49] Evidence, 26.5.97, p. 322.

[50] ibid.

[51] ibid.

[52] The original section 11(1)(a) read as follows - The general functions of the Authority are ... (a) in cooperation with the Australian Bureau of Criminal Intelligence, to collect and analyse criminal information and intelligence ... and disseminate that ... to ... law enforcement agencies ...:

Senate Standing Committee on Constitutional and Legal Affairs Report on the NCA Bill 1983, p. 20.

[53] ibid. para. 3.14 Recommendation 7.

[54] Who is to Guard the Guards? Report, Recommendation 2, p. 235.

[55] Evidence, 2.6.97, p. 426.

[56] Avery/Bingham Report p. 14.

[57] Evidence, 21.5.97, p. 124.

[58] Evidence, 8.10.97, p. 1180.

[59] CLER Recommendation 33.

[60] See para. 1.20 for details.

[61] Evidence, 22.5.97, p. 274.

[62] Evidence, 8.10.97, p. 1179.

[63] ibid.

[64] Evidence, 11.6.97, p. 665-668.

[65] Evidence, 22.5.97, p. 275.

[66] Evidence, 10.6.97, p. 537i.

[67] Evidence, 11.6.97, p. 635.

[68] Evidence, 2.6.97, p. 423.

[69] A joint Commonwealth and State Task Force, established and coordinated by the NCA under sections 11(1)(c) and 11(1)(d) of the NCA Act.

[70] The NCA issued a bulletin on Operation Cerberus in November 1995 pursuant to section 60(4) of the NCA Act.

[71] Evidence, 10.6.97, p. 529.

[72] Evidence, 10.6.97, p. 514.

[73] See Who is to Guard the Guards? for similar debate in 1991, pp. 190-193.

[74] For example, in evidence Mr D Grace QC from the Law Institute of Victoria (11.6.97, p. 739) and Mr C Caldicott, Criminal Law Section, Law Society of South Australia (10.6.97, p. 605).

[75] For example, in evidence South Australian Bar Association 10.6.97, p. 513; Mr F Costigan QC (4.6.97, pp. 468-470) and Ms B King QC (21.10.96, p. 29).

[76] Evidence, 21.10.96, p. 29.

[77] Evidence, 10.6.97, p. 605.

[78] Evidence, 4.6.97, p. 470.

[79] Royal Commissions Act 1902, section 6A.

[80] Evidence, 4.6.97, p. 470.

[81] Mr John Broome, evidence, 22.10.96, p. 31.

[82] Mr John Broome, evidence, 22.10.96, p. 4.

[83] `Criteria governing the decision to prosecute', The Prosecution Policy of the Commonwealth, para. 2.1.

[84] ibid. para. 2.2.

[85] Evidence, 21.5.97, p. 120.

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

[87] Evidence, 4.6.97, p. 482.

[88] Evidence, 10.6.97, p. 568-569.

[89] Evidence, 22.5.97, p. 276.

[90] See Operation Ark, a report of the PJC in October 1990, which described the NCA's involvement in claims of corrupt conduct by South Australian Police.

[91] Evidence, 10.6.97, p. 513.

[92] Evidence, 11.6.97, p. 640.

[93] Defined in NCA Act, section 4.

[94] ibid.

[95] The PJC also notes that, as quoted above, the view of the Standing Committee which was accepted by the Government of the day was that `the label [given to the multi-jurisdictional crime] is unimportant', Standing Committee Report on the NCA Bill 1983 p. 1.

[96] Evidence, 3.3.97, p. 18.

[97] Evidence, 8.10.97, p. 1173.

[98] ibid. p. 1178.

[99] Evidence, 21.5.97, p. 27.

[100] Evidence, 11.6.97, p. 747.

[101] CLER, p. 104.

[102] White-collar crime was defined by Mr Irwin of the Bar Association of Queensland as `any form of corporate crime or fraudulent activity' Evidence, 21.5.97, p. 15.

[103] Evidence, 21.5.97, p. 16.

[104] Evidence, 21.10.96, p. 15.

[105] Evidence, 8.10.97, p. 1142.

[106] Evidence, 16.6.97, p. 419.

[107] Evidence, 8.10.97, p. 1181.

[108] NCA Annual Report 1996-97, p. 4.

[109] Ex-NCA staff member and currently member of South Australian Bar Association.

[110] Evidence, 10.6.97, p. 519.

[111] As submitted by Mr Greg Melick, NCA Member, evidence, 8.10.97, p. 1181.

[112] The PJC notes that the definition applies to both the NCA's general and special investigations, which means that, strictly speaking, even its intelligence gathering and disseminating role is statutorily proscribed by the need to have identified a predicate offence.

[113] Evidence, 4.6.97, p. 490.

[114] NCA Act, sections 13 and 14. The notice is required to describe `the general nature of the circumstances or allegations constituting the relevant criminal activity' and to state whether the relevant offences are against the laws of the Commonwealth, a State or Territory.

[115] Evidence, 22.5.97, p. 277.

[116] Evidence, 22.5.97, p. 169.

[117] Evidence, 22.5.97, p. 277.

[118] Evidence, 8.10.97, p. 1173.

[119] Evidence, 4.6.97, p. 468.

[120] Evidence, 22.5.97, p. 277.

[121] Evidence, 10.6.97, p. 514.

[122] NCA Annual Report 1996-97, p. 2.

[123] Some examples found in Commonwealth statutes are: Australian Securities Commission Act 1989, section 1

Mutual Assistance in Criminal Matters 1987, section 5 Trade Practices Act 1974:Section 2 of the Trade Practices Act 1974 provides a particularly clear example in the following terms: `The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection'. An example which is more closely allied to the role of the NCA comes from the New South Wales Crime Commission Act 1985 - section 3A describes its `Objects' as:(1) The principal object of this Act is to reduce the incidence of illegal drug trafficking.(2) The secondary object of this Act is to reduce the incidence of organised and other crime.

[124] The NCA Mission Statement.

[125] Evidence, 22.5.97, p. 266.

[126] Senator Gareth Evans, Second Reading Speech on the NCA Bill, Senate Hansard, pp. 2493.

[127] The Queensland Bar Association recommended amending the definition of `relevant criminal activity' to add the requirement that the conduct be multi-jurisdictional and of a nature that it cannot be investigated by normal police methods and powers. Evidence, 21.597, p. 4.

[128] National Crime Authority Annual Report 1996-97, p. 4. Such predictions were also supported in the evidence put to the PJC by the AFPA, 16.6.97, p. 915.

[129] Evidence, 16.6.97, p. 919.

[130] Evidence, 21.5.97, pp. 124-5.

[131] Evidence, 8.10.97, p. 1178.

[132] Quoted in evidence, 16.6.97, p. 924.

[133] Evidence, 2.6.97, p. 390. The submission suggests that section 17(2) of the NCA Act leaves room for doubt about the extent of the Authority's powers in relation to the receipt and communication of criminal information with authorities performing similar functions in other countries.

[134] Evidence, 22.5.97, p. 240.