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Chapter Three
The References System
... the concern widely expressed - that the body would be able to
roam at will over the whole field of its jurisdiction, without having
to justify its investigations to those politically accountable, has
been specifically addressed by the requirement in the present Bill that
the Authority only exercise coercive investigative powers in the context
of specific references initiated by the appropriate government. [1]
INTRODUCTION
3.1 The references system was devised by the Parliament as a means of
limiting the Authority's access to its special, coercive powers to the
particular cases specified in terms of specific 'references' granted to
it by and reflecting the priorities of the Inter-Governmental Committee
(IGC).
3.2 It is only in recent years that the NCA's references system has been
the subject of close scrutiny, although the PJC is aware of differing
opinions about the validity of the references in use as early as in 1990.
[2] During 1996 and 1997, however, there were
a series of court decisions which addressed the validity and legality
of the references system and which produced considerable operational difficulties
for the Authority. Unlike its 1990-91 inquiry where the matter barely
warranted comment, the current situation has required the PJC to carefully
examine the appropriateness of the present references system, on which
the Authority's access to its special powers is dependent.
3.3 Two main issues arose in the course of the current inquiry: the most
appropriate and workable mechanism to enable the NCA to determine the
extent or limits of the use of its special powers and its accountability
for the use made of such powers. The arguments in relation to these issues
contained in many submissions and in much of the oral evidence taken by
the PJC were based on decisions of trial judges which while topical at
the time have since been overturned (subject of course to the ever-present
prospect of continuing litigation). The PJC has found itself in the somewhat
invidious position of trying to draw conclusions about whether the present
system should be retained or replaced in a situation of almost constant
uncertainty about its merits. Certainly, the PJC had anticipated that
the report of the Attorney-General's Department into the role of the NCA
in the John Elliott case would have been available in a more timely manner.
In particular, the report had been expected to be an authoritative guide
for the PJC on the validity of the Authority's operations under the current
references system.
ORIGINS
3.4 The unique NCA model arose from the findings of a series of royal
commissions of the deficiencies in the traditional policing model in relation
to organised crime. As is discussed in Chapter 4, the NCA was not only
given access to police powers at all times but, when authorised, special
coercive powers more normally associated with a royal commission. The
submission of the Attorney-General's Department described the origins
of the NCA's current powers in the following terms:
In view of the innovative nature of the NCA there was, perhaps inevitably,
initial controversy over the scope of its jurisdiction, the balancing
of coercive powers and individual rights and providing for participation
by the States and Territories. A major question was the extent to which
it was necessary or desirable for the new body to be established with
full royal commission powers. [3]
3.5 Parliament's answer to this situation was a compromise. While a royal
commissioner has unfettered access to coercive powers in relation to any
matter falling within the inquiry's terms of reference, the NCA was given
access to normal police powers at all times (subject to its operations
being restricted to 'relevant criminal activity' as defined in the Act),
but with its access to its coercive powers strictly limited to the areas
deemed necessary by those who would ultimately be accountable for the
NCA's operations, the members of the IGC.
3.6 The authorising 'notice' may be referred to the Authority by either
the relevant Commonwealth Minister after consulting with the IGC in relation
to Commonwealth or Territory offences; [4] and/or
by a State Minister with the approval of the IGC in relation to State
offences. [5] This 'notice' is the basis of
what has become generally known as the Authority's references system.
The notice must set out in writing:
- the general nature of the circumstances or allegations constituting
the relevant criminal activity;
- a statement to the effect that the relevant offences are, or include,
offences against the law of the Commonwealth or Territory or (in the
case of a State reference) a law of the State, but need not specify
particular offences; and
- the purpose of the investigation: sections 13 & 14.
3.7 In order to comply with the requirement in the second bullet point,
that relevant offences must be predicated, the notice tends to end up
with a list of offences that are so extensive as to be meaningless [6]
or so specific as to be inconsistent with the proactive nature of the
NCA's investigations. [7]
3.8 Examination of such notices enabled the PJC to appreciate the view
of former NCA Member, Ms Betty King QC, when she said that she thought
the reference requirements did not so much need to be 'liberalised', but
rather needed to be 'simplified':
Make them into English - simple words that everybody understands, with
clear meaning. As it is, there are so many steps you have to go through
and things that are required by the Act to be incorporated within the
reference that it makes the document almost nonsensical at the end,
instead of being a nice, straightforward document that everyone seeing
it and reading it can say, "Yes, I understand what it means."
[8]
3.9 The references system was created as the vehicle by which the States
and Territories could be involved in `oversighting the Authority's activities
to keep the Authority focussed on organised crime of national significance'
and thus prevent it from `being distracted into areas more appropriate
to general policing which would cause friction and undermine inter-agency
cooperation'. [9] It also provided the Authority
with a royal commissioner's discretion to use its special powers when
and how it saw necessary, but within strictly defined boundaries.
3.10 In turn, the references system provides a 'clear line of responsibility
to, and control by, the responsible Commonwealth or State Minister' [10],
especially in relation to the NCA's use of its special powers. In this
way, the references system ensures that the Authority remains accountable
for properly using its special powers both to its political `masters',
the IGC, as the body issuing the notice and, just as importantly, to the
courts whose oversight acts to constrain the improper use of its powers
to the terms of the notice.
3.11 Like all compromises, it could be expected that the system devised
in the early 1980's for the operations of the NCA is far from a normative
model. After examining the recent judicial developments, the PJC discusses
below whether, after some 13 years experience with the current system,
it is timely to modify the reference process by which the NCA accesses
its special powers.
RECENT JUDICIAL DELIBERATIONS
3.12 In the thirteen years of the NCA's operations, there have been a
total of twenty-three challenges taken to the Federal Court or a State
Supreme Court, three of which were pursued to the High Court. This compares
favourably, for example, with the Australian Securities Commission. [11]
All challenges to the NCA, furthermore, have been upheld in the NCA's
favour. [12]
3.13 The submission of the Attorney-General's Department, which was presented
to the PJC while legal proceedings were underway on several fronts, noted
that:
Up to mid 1996, 28 matters had been referred to the Authority for investigation,
involving some 99 references. When the Committee carried out its previous
inquiry in 1991 there had been relatively few legal challenges to the
lawfulness of an Authority investigation and those proceedings concerning
the use of its powers that reached the Federal Court had all been resolved
in the Authority's favour. The present situation is very different.
[13]
3.14 The Department was making reference to a series of adverse court
decisions made in the preceding period. These decisions were concerned
with two NCA investigations - 'Operation Panzer', involving applicants
known in the case as A1 & A2 v NCA and 'Operation Albert', involving
DPP v Elliott & Ors and AB v NCA. These are discussed in detail below.
It should be noted that, at the time of writing this report, all of the
adverse court decisions and other challenges had been upheld in the Authority's
favour, although with the constant prospect of further legal action.
The Panzer matter
3.15 `Operation Panzer is an investigation of the organised criminal
activities of Outlaw Motorcycle Gangs (OMCGs), their members and associates.
Task force investigations to date have revealed inter-jurisdictional trafficking
of amphetamines and cannabis and some involvement in designer drug distribution...'.
[14] The Panzer challenge involved two people
known as A1 and A2, obviously to conceal their identities. This case was
introduced in the NCA's Annual Report in the following terms:
The difficulty in interpreting the National Crime Authority Act 1984
was epitomised this year in a series of legal hearings which started
when two people summoned [on 31 January 1996] to an NCA hearing successfully
challenged their summonses in the Federal Court on the grounds that
the notices of reference were invalid. [15]
3.16 As the NCA further reported, progress in the Panzer investigations
overall was 'hindered because of the refusal by witnesses to comply with
section 29 notices and section 28 hearings'. [16]
As well as the delays caused by the AB case (discussed below) investigations
were delayed for some six months while awaiting the decision of the trial
judge, Merkel J. Justice Merkel ruled that, in order to be valid, the
references authorising the NCA to use its special powers had to be drafted
to provide detailed names, dates and specific activities of the alleged
relevant criminal activity. By ruling invalid the Panzer reference, Justice
Merkel effectively invalidated all of the NCA's references which had been
drafted in similar terms. In operational terms, this decision threw doubt
on the NCA's capacity to conduct special investigations.
3.17 Justice Merkel directed the NCA to refrain from acting any further
on the notices issued to A1 and A2 and the NCA largely suspended its use
of its coercive powers. The NCA appealed against this decision. A number
of matters before the courts and any use of the NCA's special powers were
put in abeyance pending the appeal decision by the Full Federal Court.
The Panzer references and all other references were subsequently redrafted
to accommodate the specificity required by Justice Merkel's ruling. [17]
3.18 On 16 June 1997, some twelve months later, in an appeal against
Justice Merkel's decision, the validity of the Panzer reference was upheld
by the Full Federal Court. Of key relevance was the majority's findings
about the nature of NCA investigations and the definition of “relevant
criminal activity”. The majority decision reads:
The difference between the typical police investigation and a typical
NCA investigation is reflected in the definition of “relevant criminal
activity”. These words themselves might lead one to expect a definition
consisting of a list of offences. But instead they mean “any circumstances
implying” that a relevant offence may have been committed or may
be in the course of being committed, and “any allegations”
that a relevant offence may have been committed or may be in the course
of being committed. So the concern is with possible, undiscovered and
incomplete offences. [18]
3.19 On the alleged deficiencies in the references, only the general
nature of allegations is required to be provided in a notice. Points (a),
(b) and (c) below summarise the Court's reasons for this view.
(a) The function of the NCA is inquisitorial, not adversarial. It must
pursue lines of inquiry, and in doing so may find other lines of inquiry
appear profitable. [19] The NCA should not
be regarded as outside its charter so long as it bona fide seeks to establish
a relevant connection between certain facts and the subject matter of
the reference.
(b) A notice containing the information to comply with the ruling of
the trial judge would be specific, not general. If the Minister were aware
of those facts, there would be no need for an NCA investigation and the
matter could be dealt with by the police.
(c) The court's power to intervene in the exercise of NCA powers is limited.
It is restricted to cases in which the NCA is on a frolic of its own or
engaging in conduct that no reasonable body, correctly directing itself
in law, could properly engage in.
3.20 The reference to State offences in the definition of 'relevant criminal
activity' in the Commonwealth NCA Act is valid. The Commonwealth Parliament
has power to permit tribunals and courts to receive and exercise powers
conferred by State Parliaments in the context of a co-operative scheme.
[20]
3.21 The Court also showed its appreciation of Parliament's attempt to
create a unique form of law enforcement agency when it commented that,
where broad terms of reference are given to the NCA, it 'is not determining
issues between parties but (like a royal commission) is conducting a thorough
investigation into the subject matter'. [21]
The Albert matter
3.22 Operation Albert (which is addressed in detail in Chapter 4) was
formally commenced on 19 December 1989 with a written submission from
the NCA to the Commonwealth Attorney-General which sought a reference
to investigate allegations supplied:
... to the Authority by the National Companies & Securities Commission
that those directors of Elders IXL who are associated with Harlin Holdings
Ltd may have committed offences under a number of Commonwealth and State
Acts, and at common law ... [22]
3.23 The submission went on to describe the relationships between the
two companies, in terms of ownership and control, and the transactions
from which the NCA inferred a conspiracy to defraud by those directors
who were also associated with Harlin. The NCA's submission was incorporated
as the terms of a reference signed by the Attorney-General shortly thereafter.
3.24 The transactions in question were a series of complex foreign exchange
transactions which led to Elders IXL making a net loss of $66 million,
shown in the relevant accounts as the `H fee', and alleged by the NCA
to have been a sham.
3.25 As part of the Albert investigation, on 8 September 1995, a person
referred to as AB attended an NCA hearing in response to a summons. [23]
At the hearing, AB claimed to be entitled to refuse to answer a question
put by the presiding NCA Member, who decided that the excuse given by
AB for not answering was not a reasonable one. [24]
The hearing was then adjourned so that AB could apply for an order of
review of the Member's decision. On 14 September 1995 AB applied to the
Federal Court under section 32(2) of the NCA Act for an order quashing
or setting aside the NCA Member's decision on the ground that the summons
was invalid. AB also sought discovery from the NCA [25]
for all documents relating to the Albert reference. Justice Northrop's
decision refusing the application was handed down on 7 March 1996.
3.26 The reasons given for refusing the application for discovery were
significant for the NCA's approach to both its use of references and conduct
of special investigations. The reasons given by Northrop J were that:
- it was not for the court to express a view on whether a line of inquiry
by the NCA came within the references; [26]
- the NCA should not be compelled to disclose its plans except in exceptional
circumstances and weight should be given to the discretion conferred
by the Act which enables the NCA to pursue lines of investigation which
may appear to have no relationship to a reference but may lead to uncovering
matters of vital importance; and
- the discovery appeared to be a fishing exercise by the applicant.
[27]
3.27 AB appealed to the Full Federal Court against Justice Northrop's
decision to disallow discovery of NCA documents. Had AB won this appeal
there would have been a basis on which to mount an argument that the events
leading to the issue of the Albert references authorising the investigation
into the transactions described did not include the matters about which
AB was being questioned. On 22 October 1997 the Full Court upheld Northrop
J's decision to disallow AB's application on the basis that it was bound
by the Court's decision in A1 & A2 v NCA which held (inter alia) that:
... it is not permissible to have regard to any of the events which
led to the reference being given, or other matters extrinsic to the
references themselves, or any other issues raised by the pleadings ...
[28]
3.28 The other judicial challenge to the authority of the NCA in its
Operation Albert investigation into the actions of the relevant directors
of Elders IXL had a very different outcome. The investigation was conducted
over some four years and more than 160 days were spent in court for which,
in the end, no jury was ever called. Once it was committed for trial,
the case was devoted to technical arguments about whether or not the evidence
being submitted by the prosecution had been legally obtained by the NCA,
in the sense of being authorised by the terms of the Albert reference.
Some indication of the extent of resources tied up for the course of this
hearing is provided by the NSW Council for Civil Liberties:
This trial generated more than 1 million pages of documentation and
3,000 pages of chronology [ie. Transcript]. [29]
3.29 The charges were dismissed by the trial judge, Mr Justice Vincent.
Justice Vincent found that none of the evidence in the case was admissible
because the Authority had been investigating a matter that was not properly
encompassed by the terms of the particular reference. On the basis of
this finding, Justice Vincent ruled that the evidence obtained from the
defendants had been involuntarily given, thus ruling out its use in court
to support the prosecution case. With no other evidence to rely on, the
prosecutors from the Victorian Office of Public Prosecution sought to
suspend the trial by entering a nolle prosequi, an application refused
by Justice Vincent. On 21 August 1996, nearly seven years after the investigation
commenced, Justice Vincent acquitted the defendants.
3.30 Under Victorian law there is no appeal allowed against an acquittal.
The prosecution instead sought rulings by the Victorian Court of Appeal
on 12 points of law. On 26 September 1997, Justice Brooking handed down
the Court of Appeal's judgement that Justice Vincent had been wrong on
all the twelve points of law concerned. The validity of the NCA's references
system was upheld.
3.31 With the full benefit of having examined these recent court cases
in which the validity of the references system was challenged, the PJC
is inclined to agree with Mr Broome when he told the PJC (after each of
the appeal court judgements had been handed down) that:
The point I would wish to make, notwithstanding these resounding victories,
is that recent history demonstrates the capacity of the present Act
to give rise to doubts as to the validity of the Authority's actions
and therefore to encourage challenges which, while they may turn out
to be unsuccessful, nonetheless create delay and uncertainty. [30]
THE ROLE OF THE REFERENCES SYSTEM AS AN ACCOUNTABILITY MECHANISM
3.32 Any consideration of the references system must consider the IGC's
role in the process. [31] The NCA submitted
that:
The NCA is very clearly responsible to the Inter-Governmental Committee.
That Committee, comprising police ministers from the Commonwealth and
all States and Territories, has the capacity to fully oversee the NCA's
areas of activity, how it undertakes its operations and how it utilises
its powers. [32]
3.33 By confining the NCA's ability to access coercive powers to the
terms of a notice which must have either the approval of or have been
issued in consultation with the IGC, the references system is clearly
an important mechanism for the IGC to hold the NCA accountable for the
way it uses its special powers. Its importance in this respect was emphasised
in the evidence of a number of witnesses. [33]
Mr Marshall Irwin, representing the Queensland Bar Association, succinctly
expressed the view that:
... the reference requirement is an important safeguard in ensuring
those [special] powers are not used unnecessarily [34]
while the President of the Queensland Council for Civil Liberties, Mr
Ian Dearden, noted:
We consider the current reference requirements are fundamental and
that they serve the purpose of keeping the National Crime Authority
as a guided rather than an unguided missile. [35]
3.34 Another perspective was that, while noting the cumbersome nature
of the present system, something similar should be retained to ensure
the responsible use of the Authority's special powers. Mrs Susan Crennan,
for example, observed that:
... the reference procedure ... is, in my view, reasonably unwieldy
and certainly prone to causing all sorts of problems in the context
of litigation and challenges to what the NCA is doing. [36]
3.35 However Mrs Crennan also noted the importance of:
... parameter setting at the outset of any investigation ... [which]
the reference mechanism was intended to do . . . and does not seem to
have achieved that. That is really the big step you have to address,
I think, in terms of trying to satisfy proper accountability. [37]
3.36 Support for the references system was far from unanimous, with problems
expressed mostly on the basis of its complexity and vulnerability to attract
the sort of judicial challenges described above. There was, however, some
doubt cast on the effectiveness of any system which might attempt to hold
the Authority to account for its actions. It should be noted that this
view was substantially underpinned by reference to the observations and
judgements of Justice Vincent, whose rulings were subsequently found to
be unsound by the full court. Mr Elliott, for example, expressed the view
that the NCA is 'impossible to supervise' because they are 'not accountable
to anybody'. [38] He further implied that the
way the Authority used its special powers in his case would suggest that
the reference system does not work at all as an accountability mechanism,
when he said:
I just find that having this [Authority] not being accountable to anybody
and being able to do what they damn well like is a real problem. [39]
3.37 Mr John Marsden, President of NSW Council for Civil Liberties, expressed
a similar view in the following terms:
Let us now turn to the scurrilous and incompetent handling of the “Elliott”
affair ... [which] ... revealed the high-handed methods employed in
its investigations. The decision underlines the total contempt and disregard
the NCA has for our basic human rights...[The] improper and misapplication
of the NCA in relation to its coercive powers ... [showed] ... excessive
zeal used in the pursuit of targets [and an] absence of any proper measure
of control in the conduct of its investigations, the powers were employed
in a casual fashion with little attention paid to important constraints
found in legislation... I submit that a body as powerful as the NCA
has once again failed to conduct themselves with a commensurate sense
of responsibility. [40]
3.38 Mr Broome rebutted such claims by making the point that, if there
is a perception that the NCA has powers which are 'significant and not
appropriately accountable and which are capable of misuse', then:
If enough people write that kind of thing often enough, some people
will start to believe it. Members of the PJC know full well that that
is simply not the case. [41]
3.39 He also told the PJC that:
... we are accountable on every occasion in the courts when we issue
a notice for someone to attend a hearing ... [42]
3.40 The PJC accepts that, in limiting the extent to which the NCA uses
its special powers, and acting to ensure proper accountability to the
decision-makers by those delegated with their use, the references system
is not without merit. Is the references system as currently structured,
however, the best or only way that these desirable goals can be achieved?
THE FUTURE OF THE REFERENCES SYSTEM
3.41 The discussion of the recent court cases clearly demonstrates that
the present references arrangements have had the effect of hampering the
NCA in its attempts to effectively investigate and bring to justice the
perpetrators of organised crime who could be expected to have, by virtue
of the profitability of their illicit activities, the capacity to defer,
delay and challenge its every move against them. This observation is confirmed
by CLER's findings as follows:
In the course of its deliberations, the Review was briefed upon a number
of matters where powerful and influential persons and/or groups were
almost beyond the reach of the law. These persons had the power, resources,
and influence to challenge the authority of the regulators, and indeed
by implication, the State itself ... It is not correct to assert that
the Commonwealth has such resources that it can easily match these figures,
for these figures will very often call in resources beyond those which
the Commonwealth law enforcement community can muster. Figures such
as these can be ruthless in attempting to protect their interests ...
[43]
3.42 As an example of the problem, the NSW Council for Civil Liberties
pointed out that `estimates of the cost of the [Elliot & Ors] trial
have been in the vicinity of $20m-$40m'. [44]
The issue of the length and cost of proceedings has also attracted judicial
comment. After Vincent J acquitted those in connection with the Elliot
matter, the Director of Public Prosecutions sought the opinion of the
Court of Appeal on twelve points of law which had arisen in the case.
In the course of his deliberations, Brooking J said:
Nowadays actual or contemplated criminal proceedings spawn civil proceedings,
and as a result quasi-criminal cases, civil in form but really concerned
with criminal liability, which were unknown not so long ago, now occupy
our lists.
In the present case we have had four years of legal proceedings, concerning
events which began in 1986. I cannot regard as satisfactory a criminal
justice system which can permit what has happened here: [His Honour
went on to outline the chronology of events]. [45]
3.43 While all of the cases described in this Chapter were eventually
upheld in the Authority's favour, the PJC queries the continuation of
the references system in its current form. The PJC appreciates Mr Broome's
comment that:
The problem is that the law should not be so unclear as to enable decisions
of the kind we have seen in both these cases [A1 & A2 and Elliot
& Ors]. They have required substantial time, resources and judicial
consideration to set it right. [46]
3.44 As Senator Evans had observed at the time of the Authority's establishment,
there is a need for some system to 'ensure that the area of lawful inquiry
by the Authority in any one case is readily ascertainable'. [47]
Recent judicial challenges to the NCA's powers have reinforced the currency
of his statement.
3.45 With the benefit of hindsight it is arguable that the status quo,
the scheme put in place by Senator Evans, has much merit. While the present
system might appear to have been in a mire of litigation, the number of
challenges has been relatively small. Furthermore, the courts have at
all times found in the NCA's favour [48] and
most judges have demonstrated considerable understanding of Parliament's
intended role for the NCA.
3.46 Earlier judicial clarification would have avoided the wasted effort
which followed, particularly in relation to Operation Albert. It would
now seem unlikely, however, that members of the judiciary will in the
future follow the line of reasoning adopted by Justices Merkel and Vincent,
whose rulings were the subject of comprehensive rebuttal in their respective
appeal rulings.
3.47 One benefit of the maintenance of the status quo is that, if an
entirely new mechanism was to be introduced, the inevitable process of
judicial clarification must start all over again. After 13 years of uncertainty,
such an outcome would be particularly unhelpful for the NCA itself, which
has a daily need to be able to properly ascertain the extent or limits
of the use of its special powers.
3.48 But, as observed by NCA Member Mr Melick:
Until the High Court has ruled on these matters those decisions are
still open to challenge. It is not only a question of clarifying the
references; I think the Act has to clarify its processes or tighten
up its processes by which people can challenge either the reference
itself or the right of the Authority to summons a person and the right
to give answers. [49]
DISCUSSION
3.49 The High Court has not yet ruled on these matters so some degree
of uncertainty remains. The PJC discusses below the options for reform
of the references system for authorising the NCA's access to its coercive
powers, bearing in mind the competing demands of its effectiveness as
a law enforcement body with the recognition that its special powers are
intrusive of people's civil liberties and the exercise of which it must
be capable of being held accountable.
3.50 The PJC is mindful that much of the comment it received on the current
system preceded the judicial confirmation of its validity. Many witnesses,
especially the lawyers, expressed ambivalence about the current system
and were receptive to notions of change on the basis that the current
system was, at the time, subject to judicial rejection. What those same
lawyers would now say to the PJC in the full knowledge of the several
appeal decisions is speculative. The PJC hopes not to pay any of its witnesses
a disservice by quoting from their submissions or oral evidence, which
were made on the basis of their understanding of the situation at the
time. For example, former NCA Member, Mr Malcolm Gray, who represented
the South Australian Bar Association, was clearly a supporter of some
form of references system for the NCA. What is not clear now is whether
he would express support for the status quo or favour some modified model,
as he told the PJC that:
... I am not suggesting at all doing away with the reference system,
because the reference system really is the accountability system. [50]
3.51 Suggestions for reform of the references system can be conveniently
placed in three categories:
- the references system should be abolished, such that the Authority
itself should be given discretion to define matters for special investigation
within its statutory ambit;
- a system of broad references should be created, such that the Authority
itself should be given discretion to define matters for special investigation
within the authority delegated to it by the IGC; or
- whether there is or is not a references system, the Authority should
be required by the statute to form the view that it has a 'reason to
believe' that it needs to make use of its coercive powers to effectively
investigate a matter.
Each of these three approaches is addressed below.
Abolition
3.52 Mr Frank Costigan QC argued that the current system was ineffective
as well as inconsistent with Parliament's intentions. He conveyed his
doubts about the appropriateness of any system which required the NCA
to put down in writing suspected offences at an early stage of an investigation.
[51] He explained that:
At the commencement of an investigation very little is known. What
is known is usually mere suspicion. … If such a case is made in
writing, the resulting document attracts a status far above what is
intended and what is no more than suspicion may be converted into concluded
views. [52]
3.53 In Mr Costigan's view, the problems raised by the references system
are symptomatic of the failure to properly set up the Authority in the
first place. One symptom he submitted could be seen particularly in white
collar crime where well-funded defendants have an almost interminable
capacity to frustrate investigations by serial appeals to the courts.
[53] In conclusion, Mr Costigan recommended
that the Act be changed to:
... do away with the requirement for a reference, and so remove any
requirement that at the commencement of an investigation there be recorded
the circumstances implying offences, or allegations of offences. [54]
... I would have thought it would be possible to draft an amendment
to the Act which made technical appeals less likely and yet provided
an appropriate avenue of appeal if the Authority was exceeding its proper
jurisdiction. [55]
3.54 Former NCA member, Mr Greg Cusack, informed the PJC that:
All these references were viewed by independent counsel. They went
through the counsel for the Attorney-General, who overviewed this ...
If various lawyers can't get it right, including a person who advises
the Attorney-General's Department, there must be something wrong with
the Act. [56]
3.55 Taking a defence lawyer's perspective, Mr Cusack suggested that
challenges to the references would always be one possibility for your
consideration and that:
Mr Cusack concluded that, to avoid problems in the future, the Act would
need to be amended to reduce the potential for judicial challenge. [58]
3.56 Mrs Susan Crennan, former chairman of the Bar Council of Victoria,
expressed a similar view to that of Mr Cusack by pointing to the problems
encountered by the NCA in having to repeatedly request that references
be redrafted or are found to omit a particular matter that the Authority
needs its special powers to investigate. Mrs Crennan said:
... it is a problem the NCA really should not have to face because
references are drawn to the best of everybody's ability. Often a lot
of time is spent on drawing a reference, only to find that a particular
court may take a view that topic A is not covered by it or whatever.
[59]
3.57 As an alternative to the present system, Mrs Susan Crennan offered
a suggestion that 'perhaps a better procedure' than a reference system
would be one similar to a search warrant procedure:
In other words, those conducting preliminary inquiries or investigations
could have, or form, a reason to suspect serious crime has been committed
and possibly go before a Federal Court judge on affidavit material in
order to be permitted to continue an investigation into some serious
matter. [60]
3.58 This suggestion runs the risk that the Federal Court judges issuing
such warrants may, in the case of judicial challenge to the NCA's powers,
end up being witnesses in their own case. [61]
3.59 The need for a more flexible system which enables a capacity to
respond quickly to developments during an investigation was also stressed.
The submission of the Victorian Director of Public Prosecutions noted
that:
The complexities and legal pitfalls which surround the NCA in this
area are now a matter of public record. The practical requirements to
obtain a Reference ensures that the NCA will always be investigating
some time after the events in question. Actual contemporaneous investigations
are made almost impossible. For a law enforcement agency with such an
important task, this is not a satisfactory situation either for the
NCA or the community. [62]
3.60 This view was supported by the South Australian Police Commissioner
who submitted:
It is ... imperative that the process of implementing a reference be
expeditious, particularly when an active criminal enterprise has been
identified. [63]
3.61 The Victorian Government similarly sought legislative reform as
follows:
- streamlining the “reference” mechanism by specifying criteria
which need to be satisfied so that State and Territory “references”
can be issued “out of session” and be subsequently ratified,
reviewed, or, if necessary, revoked by the IGC. Such a reform will enable
the NCA and other Australian law enforcement agencies to mobilise their
resources at the earliest opportunity to prevent:
- the dissipation of evidence; and
- persons completing their criminal endeavours and fleeing the jurisdiction.
[64]
3.62 Mr Broome gave evidence on the question of abolishing the reference
system or maintaining the status quo in the following terms:
But there is a much more fundamental question which is: do you have
a reference based process? None of the other agencies which have similar
powers to the Authority have on top of their legislative remit the need
for a second tier which is a reference granted by a minister saying,
`This is the sort of area that you should investigate within the broad
statutory charter'. So the National Crime Authority Act ... defines
relevant criminal activity and then we have a reference in relation
to some part of relevant criminal activity, so that you immediately
put this extra layer on. [65]
3.63 He added:
If you have a reference process, then you will inevitably get into
debates of the kind that the Merkel decision highlights. And what you
have got is one Judge in one case saying, “The Authority had a
reference which was too wide, too general and which did not cover the
specifics.” And in the other case, you have got a Judge saying,
"It was too narrow. It did not cover the action being investigated."
So one can certainly ask the question whether the reference process
is the best way to go. [66]
3.64 He went on to cite a number of agencies with similar powers to the
NCA:
The Australian Competition and Consumer Commission [ACCC] does not
have to go through a reference process before it exercises the same
powers. The ASC [Australian Securities Commission] does not. The Insurance
and Superannuation Commission, the Taxation Office, and so on, all have
similar powers and do not have a reference. The Australian Broadcasting
Authority is another one that comes to mind. [67]
3.65 The PJC examined the systems of the ASC and the ACCC. The PJC notes
that there are similarities between the NCA and the ASC since they are
both national bodies set up by the Commonwealth Parliament to address
breaches of the law that are not generally within the constitutional jurisdiction
of the Commonwealth. There is, however, one significant difference between
the two bodies. In agreeing to work cooperatively in the national interest
in relation to corporate activities, the States and Territories have foregone
virtually all of their powers. This is not the case in criminal law enforcement.
This difference is highly relevant to any suggestion that, on the basis
of the ASC system, the reference system might be completely abolished
and, with it, the control of the States and Territories through the IGC.
The differences in the role and functions of the ASC, the ACCC and the
NCA also make such exact comparisons problematic.
3.66 It is the case that neither body operates under a references system.
Under the Australian Securities Commission Act 1989 (ASC Act), the ASC
may make such investigation as it thinks expedient where it has reason
to suspect that there may have been committed various contraventions of
corporate laws. [68] Under the Trade Practices
Act 1974 (TP Act), when the ACCC has reason to believe that a person is
capable of furnishing information, producing documents or giving evidence
relating to a matter that could constitute a contravention of the TP Act,
the Commission may require the production of information. [69]
3.67 In its consideration of whether the references system should be
retained, the PJC is mindful of the view of the Attorney-General's Department,
which at the time of the PJC's inquiry was involved in a comprehensive
review of the NCA's role in the Operation Albert matter. Mr Daryl Smeaton,
who at the time was Director of the Office of Law Enforcement Coordination
in the Attorney-General's Department, said that the Department was 'neutral
on the issue' of abolishing the references system and would not be in
a position to advise Government until 'all the bids are in and all the
information is available'. [70]
3.68 The Department's representatives did, however, express a strong
view in connection with the constitutional constraint which arguably prevents
the Commonwealth from exercising coercive powers in respect of criminal
activities in areas other than Commonwealth offences. The view holds that,
although there is constitutional power for the Commonwealth to gather
intelligence about criminal activities, and coordinate the activities
of others, there is no constitutional power to investigate coercively
any State offences that do not have a Commonwealth component. [71]
3.69 This view of the Constitution has never been tested and, while some
may argue that it is not necessarily the correct view, it is a view that
is likely to win the support of the States. For this reason, any alternative
model which removes the requirement for the IGC's approval to refer a
State matter to the NCA would most likely need the acceptance and agreement
of all States. Mr Broome also acknowledged that any decisions about retaining
or abolishing the reference system:
... are going to be made, not only by the Federal parliament but by
the State parliaments, because of the need to underpin the legislation
agreement. [72]
3.70 The PJC notes the calls for a more time-sensitive system for the
NCA's use of its special powers. It also recognises the integral role
of the States and Territories, via the IGC, in the NCA's operations. The
arguments for the retention of the IGC as the NCA's supreme authority
are persuasive, despite the infrequency with which it meets. The PJC rejects
any notion that might lead to the lessening of the wholehearted support
of the IGC's members for the NCA, since it would significantly and adversely
impact on the NCA's effectiveness.
Broadly framed references
3.71 Under the current arrangements, the notice which refers to the NCA
a matter for special investigations must describe 'the general nature
of the circumstances or allegations constituting the relevant criminal
activity' and be able to affirm or assert as true the existence of a relevant
offence. [73] It has been suggested that, rather
than retain this level of specificity, references should be framed in
broad terms. For example, one of the options for the future of the references
system submitted by the Attorney-General's Department was to:
... permit Ministers to set general priorities for the Authority by
referring specific kinds of criminal activity (such as drug importation,
drug trafficking or money laundering) to the Authority for investigation.
[74]
3.72 Other examples of broad references suggested to the PJC were those
of the Bar Association of Queensland which included 'Outlaw Motor Cycle
Gangs', 'certain cocaine syndicates' and 'Italian-Australian organised
crime'. [75]
3.73 Representing the Department, Deputy Secretary Mr Norman Reaburn
regarded the strength of broadly framed references as creating 'a high
degree of flexibility' and said that there were plenty of precedents in
law enforcement for such broad references, although 'not necessarily all
of them in this country'. [76]
3.74 Broadly framed, or 'generic' references were seen by some as consistent
with the NCA's brief to conduct proactive investigations. In this context,
the South Australia Police Service submitted that the 'Authority should
be empowered to co-ordinate investigations into criminal entities not
necessarily individuals [which] should be facilitated by legislative change
and would certainly receive community support'. It added:
For example, why not target the establishment of amphetamine laboratories
and the production, sale and distribution of illicitly manufactured
narcotics which is identified as being on a national scale and which
cannot be adequately investigated on an individual State basis. [77]
3.75 Mr Frank Costigan had this to say about broadly framed references:
My real complaint about the references is that they require a specificity
which does shackle the investigator. If it were possible for example,
for the Authority to be given a reference like money laundering just
described in those terms; not described by reference to the definition
of relevant criminal activity in the Act but a broad reference - or
another reference like drug trafficking, but wide enough to enable the
investigator to really go down side paths to see if they are leading
somewhere... [78]
3.76 Referring to the benefit of broadly framed references, Mr Paul Rutledge,
from the Office of the Director of Public Prosecutions in Queensland said
that:
... there needs to be a reference procedure that is not too tight.
From my observations and experience, you can have the problem that when
you start an investigation, it leads into other fields that need to
be investigated. The trouble is, if you set them down too fine, you
run into this problem of them being perhaps unfairly and here I mean
unfair to the community - restricted in their investigations. [79]
3.77 He went on to provide another example of the 'winding road' kind
of investigation conducted by the NCA:
I remember that when I was with the Commonwealth and they were investigating
a drug importation, they then started picking up conversations relating
to setting up a businessman and the extortion of a large sum for money
from him. The police obviously did not have the problem about going
on to that other important matter, because they were not constrained
by the reference. [80]
3.78 The South Australian Bar Association submitted that:
The advantage of references in this form is to focus attention on that
which is suspected but unknown at the time the reference is given, requiring
an investigation to be tailored accordingly. [81]
3.79 Adding further support for broad references, the South Australian
Bar Association's submission argued that the 'general descriptive form
of reference':
... ought to be a sufficient benchmark against which a person who is
subjected to the use of the NCA's coercive powers may measure (or have
a Court measure) the legality of those actions taken by the NCA in its
investigation of the specific suspected area of organised crime. Viewed
in this light the coercive powers can be seen to be a more acceptable
and justifiable investigative tool than a bare power which would seek
to trap the unwary into admissions of their own wrongdoing. [82]
3.80 Prior to the Merkel decision in A1 & A2 which had such a restrictive
effect on its access to special powers, the NCA had already been using
broadly framed references for the purpose of investigating suspicious
financial transactions. [83] These references
were known as the 'Limbeck' series of references. They were drafted broadly
in terms of 'money laundering' although, as Mr Broome acknowledged, there
was always a question about whether 'money laundering' as an offence was
in truth encompassed by the definition of 'relevant criminal activity'
and, if so, whether the reference requirements permitted notices drafted
in such broad terms as money laundering activities. [84]
3.81 The Limbeck references were described by the Deputy Director of
AUSTRAC, Mr Graham Pinner as references which:
... enabled the NCA to look at all financial transaction data that
AUSTRAC had reported to it. That looked at two avenues: suspicious transactions
reported by financial institutions and other cash dealers, and also
financial transactions that AUSTRAC had used its computer system to
analyse on a rules-based system to again detect unusual patterns of
transaction. [85]
3.82 Mr Pinner also told the PJC that:
We know from a number of major operations that the NCA has been involved
in ... that it [the Limbeck investigation] is very effective and useful
... [and] we would hope that, if there are problems with that kind of
reference, those problems are looked at and removed. [86]
3.83 The NCA submission noted that:
A further constraint at present is that 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 ... This difficulty is perhaps best addressed through
an amendment to the NCA Act and would not, in the NCA's view, be cured
by the grant of a specific reference. 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. [87]
3.84 The Attorney-General's Department submission described the situation
as follows:
White collar crime often occurs without leaving the usual indicators
that a crime has been committed. The first sign of organised crime is
frequently the suspicious and unexplained movement of large sums of
money. Previously the Authority was able to use a reference in general
terms in relation to money laundering to carry out initial investigations
of suspicious financial transactions to ascertain if a reference to
a particular offence should be sought by the Authority because of doubts
about its validity following the decision of the Federal Court in the
A2 & A2 case. The lack of access to such general reference covering
money laundering significantly limits the Authority's investigations.
3.85 In undertaking financial investigations, particularly investigations
into money laundering offences, the NCA has developed a close working
relationship with other relevant Commonwealth agencies, such as AUSTRAC,
ATO, ASC and AFP. Any continued restriction on the Authority's access
to this kind of reference could seriously disrupt cooperation between
those agencies and adversely affect the Commonwealth's ability to counter
money laundering activities. [88]
3.86 The problems with the Limbeck references appear to relate as much
to the offence-based nature of the definition of relevant criminal activity
than to the reference system as such. This issue was discussed in general
terms in Chapter 2 with the recommendation that the offence-based definition
be replaced by a more generally descriptive definition of the NCA's area
of inquiry. [89]
3.87 In relation to broad based references CLER cautioned that:
Care must be exercised here because generic references could lead the
NCA reverting to being a competitive "ninth" police force
and undermining the cooperative base of NCA work addressing organised
crime. [90]
3.88 Mr Reaburn also added a qualification to his views quoted above
on the advantages of broadly framed references, by pointing out that:
A very broad reference ... would require ... an interesting process
of reporting back, of interplay, between the Authority and the IGC in
order to enable the IGC to keep a fairly firm hand on where the investigations
were going and the kind of usefulness the Authority was making of a
very broad general reference. [91]
3.89 Such evidence raised doubts in the minds of the PJC members as to
whether a broadly framed reference could, as expressed by Senator Gareth
Evans:
...ensure that the area of lawful inquiry by the Authority in any one
case is readily ascertainable [so that if] the Authority should stray
beyond that area, it can be restrained by judicial order. [92]
3.90 With the PJC's proposal in Chapter 5 that SCOCCI take on a more
formal role in relation to the NCA's operational focus, such problems
should be avoided. As long as the NCA's coordination and cooperative mechanisms
are in place, it is difficult to see any more such problems arising with
generic references than with the current system.
'Reason to believe'
3.91 The submission of the Attorney-General's Department indicated the
problems inherent in the current references system as follows:
There is an issue about the degree of specificity required in the definition
of `a relevant offence' in this [current] model. At the extremes are
a very broad definition which might allow jurisdiction where almost
any offence may have been committed or a very narrow definition giving
jurisdiction in very specific cases. The first may well be inappropriate,
the second unworkable. [93]
3.92 The Attorney-General's Department provided a possible solution to
this issue of the narrowness of the NCA's current range of activities.
This option involves placing in the Authority an augmented degree of autonomy
in its use of special powers than it has at present, by imposing on it
a statutory requirement that it should first have to apply the test that
it has a 'reason to believe' that it should use its special powers because
ordinary investigative methods are unlikely to work. It could be either
the sole basis for the NCA's accountability to the courts for its actions,
with self-initiated inquiries within the parameters of its statutory boundaries,
or alternatively be a statutory means of controlling the excessive use
of its special powers within a broadly framed references system.
3.93 The Department's Deputy Secretary, Mr Norman Reaburn, informed the
PJC that there were a number of statutory bodies which do not require
references for the use of their coercive powers. He told the PJC about
'the high degree of concern about the creation of the NCA', which can
be seen to be 'reflected in a whole range of parts of the legislation'
[94] and went on to note that the NCA:
... was something new. [As a community, we are] more used to these
kinds of bodies now and it is certainly true that the State bodies that
came along afterwards do not have quite the same degree of channelling
that is contained in the [NCA's] legislation. [95]
3.94 Mr Reaburn also told the PJC that :
'reason to believe' is a well-established principle in law, with quite
clear rules about the standards that need to be met and the basis upon
which the reason to believe can be based... [96]
[and] ...[many of the organisations that were created after the NCA]
were often created with much more flexible approaches to the sorts of
things that they were doing. [97]
3.95 He did submit, however, the possibility of an increase in litigation
because 'you might see a greater number of people wishing to test the
question of "reason to believe" at an early stage'. He went
on to add:
The other question - and it is a question in relation to any change,
of course - is whether the Government and then the Parliament is prepared
to concede that kind of flexibility and freedom. So I think an increase
in litigation would be the major downside. But, as I say, as a concept
it is quite common in law enforcement. [98]
These were the only reservations expressed by Mr Reaburn. He also indicated
that the Department did not take a position either way on this approach.
[99]
3.96 CJC Chairperson, Mr Frank Clair, told the PJC that, unlike the NCA's
dependence on references for its special investigations:
the CJC has the responsibility to investigate organised crime, where
the Commission itself forms the opinion that the particular investigation
[using coercive powers] is [one]. . . which cannot effectively or appropriately
be carried out by any other law enforcement agency; that is, by the
QPS or any other agency within the State. [100]
3.97 On this issue, Mr Costigan expressed the view that:
The self-initiating investigation has got a lot of attractions if you
are comfortable with the personnel that you have appointed to the Authority
and if you feel comfortable with appropriate accountability that they
will not abuse that ... and go off on hares of their own ... [101]
3.98 The PJC accepts that Authority Members are not at all likely to
'go off on hares of their own'. The Members are statutory officers, appointed
by the Governor-General and in the past, they have been either judges
or experienced lawyers. The PJC has no reason to doubt their absolute
integrity. They are already entrusted to apply their minds to the question
of the relevance of special investigations to the terms of their references
and, according to Ms King, informally apply a 'reason to believe' test
in their current use of special powers. [102]
3.99 The PJC notes the cumbersome nature of the current NCA references
system, especially by comparison to such bodies as the CJC, the ASC and
the ACCC, created more recently than the NCA. The NSW Crime Commission
(NSWCC) model has also taken the concept of self-initiating investigation
even further than 'reason to believe', with an unfettered capacity to
use coercive investigative powers prescribed in broadly-framed terms which
are referred to it by its Management Committee. [103]
CONSULTATION WITH THE IGC
3.100 The PJC notes that, under the current references system, the Commonwealth
Minister needs only 'consult' with the IGC before issuing a reference
[104] whereas a State Minister must get the
IGC's 'approval'. [105] On this basis, the
Victorian Government submitted that the responsible Commonwealth Minister
should obtain IGC approval of Commonwealth references which, it submitted:
would provide for greater control and accountability at the ministerial
level to ensure the NCA best serves the needs of the Australia community.
It recognises the valuable role the States and Territories can play
in providing checks and balances over the actions of the Commonwealth
and vice versa. It would also enhance the appearance of propriety and
thus increase public confidence in the NCA. [106]
3.101 The PJC notes that the Victorian Government alone sought such a
change. While the intention of the proposed change appears to be to place
the Commonwealth on the same footing as the States and Territories in
relation to the operations of the NCA, it fails to recognise that the
Commonwealth may wish the NCA to pursue a matter with a national focus
which may not involve the States and Territories in its conduct. Such
an investigation may involve only Commonwealth agencies, such as the Australian
Federal Police, the Australian Customs Service, the Australian Taxation
Office, AUSTRAC, etc. An implied power of veto by the States and Territories
over the actions of the Commonwealth in such circumstances would clearly
be undesirable.
SUMMARY
3.102 The PJC has concluded that, despite a strong attraction to leave
the existing system of references in place because of the vindication
of its validity by the courts, there are more persuasive reasons to replace
it with a more practical approach. The current references system was put
in place in another era, one of intense concern for what use and misuse
the new Authority might make of coercive powers. This fear of the unknown
in relation to the NCA's activities should have long passed. The courts
have given the NCA a clean bill after 13 years of operations. The early
1980's was also a period of distrust of the Commonwealth's intentions
in establishing the NCA while the States and Territories have primary
jurisdiction in criminal law matters. The NCA has proven, by its commitment
to cooperation and coordination with its partner agencies that it is not
a threat, but is complementary to their activities and adds value to law
enforcement in Australia.
3.103 The PJC takes the view that the IGC is a critical component of
the present arrangements, not only because of the accountability that
is thereby provided to their respective Parliaments, but the prioritising
of the NCA's activities by the references process ensures that decisions
are taken by the nation's representatives on a national basis in the national
interest.
3.104 It seems axiomatic that for the NCA to operate in a genuinely proactive
manner its terms of reference should be sufficiently flexible for it to
react quickly to operational developments. The current system has proven
itself clumsy in this respect and the PJC accepts the arguments for the
introduction of a broadly based references system. It will still be an
important role for the IGC to set down the generic terms of reference
and thus provide the NCA with the signposts to its key activities.
3.105 The PJC supports the application of the 'reason to believe test'
to the NCA's use of its special powers. In doing so, the PJC has taken
account of the following matters. The `reason to believe; test is a well-established
principle in law and several agencies with comparable powers to those
of the NCA, in both Commonwealth and State/Territory jurisdictions operate
successfully with this restraint placed on them. Further, the test simultaneously
allows the authority greater control and regulation of the use of its
coercive powers while placing an onus on the authority to properly assess
the need for their use. Finally, although it was conceded in evidence
that the test might lead to increased litigation at an early stage of
referred matters, the committee considers that this `downside' is outweighed
by the potential benefits to the reference system as a whole. [107]
3.106 In conclusion, the reference system envisaged by the PJC is one
which will enable the authority to operate with a greater degree of certainty
(from legal challenge) provided by the framing of references in broad
terms. At the same time, the effect of imposing the `reason to believe'
test should be twofold. First, it should allow the authority to operate
with the kind of flexibility which has characterised agencies established
in more recent times. Secondly, it should provide a judiciable threshold
or standard to be met before those powers can be invoked.
3.107 The PJC emphasises that the principal purpose of the test is to
act as a check on the Authority's use of its powers in the context of
broadly framed references. It should remind future Authority members that
they have been entrusted with special yet intrusive law enforcement tools
which have been deemed necessary for the NCA to counteract the effects
of major criminality but which should be used with discretion. Further,
the incorporation of the `reason to believe' test as part of the reference
structure is contingent on the adequacy of the balances for enhanced scrutiny
contained in this report.
Recommendation 5: That the statute be amended to provide that the
Inter-Governmental Committee may refer matters for special investigation
by the Authority which are framed in broad terms as to the characteristics
of the criminality to be investigated.
Recommendation 6: That, as a check and accountability measure within
the system of broadly framed references, the National Crime Authority
must first form the opinion that there is a reason to believe that ordinary
investigative methods are unlikely to work before it can invoke its special
powers. This incorporation of the 'reason to believe' test into the references
scheme is subject to the adequacy of the balances for enhanced scrutiny
contained in this report.
Footnotes
[1] Senator Gareth Evans, Attorney-General,
Senate Hansard, 10 November 1983, p. 2494.
[2] Submission No. 44.
[3] Evidence, 2.6.97, pp. 383-4.
[4] ibid. section 13.
[5] ibid. section 14.
[6] For example, as part of a two and a half
page notice, the following relevant offences were listed against the general
nature of the allegations:engaged in the illegal importation of narcotic
goods, the possession of illegally imported narcotic goods, or conveyance
of illegally imported narcotic goods;engaged in bribery or corruption
of officers of the Commonwealth or of a Territory;engaged in tax evasions;engaged
in armament dealings;engaged in fraud on the Commonwealth; andengaged
in - money laundering within the meaning of section 81 of the Proceeds
Crime Act 1987; and conspiracy to commit offences against laws of the
Commonwealth, namely: section 9A of the Passports Act 1938; and sections
77, 80, 83D to 83J inclusive of the Migration Act 1958;; that the Authority
suspects may have been or may be, directly or indirectly connected with
a course of activity involving the commission of one or more of the offences
referred to in (2) below ... (2) [inter alia] ... involving fraud, tax
evasion, illegal drug dealings, bribery or corruption of an officer or
officers of the Commonwealth or Territory, armament dealings, or matters
of the same general nature as one or more of the foregoing. (Extracted
from notice issued by Attorney-General on 12 June 1992.)
[7] The terms of a three and a half page notice
issued in 1991 (for the 'Albert' matter) listed the relevant offences
as follows:breaches of sub-section 232(2) of the Corporations Law to which
paragraph 232(3)(a) applies;breaches of sub-sections 232(5) and (6) of
the Corporations Law;breaches of sub-sections 997(1),(4) and (7) of the
Corporations Law; conspiracy, contrary to paragraph 86(1)(a) of the Crimes
Act 1914, to commit [various other specific offences against the Corporations
Law and the Proceeds of Crimes Act 1987 respectively]. (Extracted from
the notice issued by the Attorney-General on 13 November 1991.)
[8] Evidence, 21.10.96, p. 21.
[9] Attorney-General's Department submission,
evidence, 2.6.97, p. 386.
[10] ibid.
[11] In the seven years since the inception
of the ASC, and without accounting for the challenges taken to the State
Supreme Courts, twenty challenges to the use of its powers have been brought
to the Federal and High Courts alone.
[12] Mr Broome, evidence, 8.10.97, p. 1177.
[13] Evidence, 2.6.97, p. 385.
[14] NCA Annual Report 1996-97, p. 31.
[15] ibid. p. 32.
[16] ibid. p. 31.
[17] ibid. p. 2.
[18] NCA (etc) v A1 & A2 (1997)
145 ALR 126 per von Doussa and Sundberg JJ.
[19] ibid.
[20] NCA (etc) v A1 & A2 (1997)
as extracted from NCA Annual Report 1996-97, p. 32.
[21] NCA (etc) v A1 & A2 1997 145
ALR 126 per von Doussa and Sunberg JJ.
[22] Melbourne University Law Review, 1997,
vol. 21, p. 332.
[23] NCA Act, section 28.
[24] NCA Act, section 30(2).
[25] Federal Court Rules, Order 15 rule 15.
[26] Northrop J. held that references were
instruments to be interpreted in accordance with the Acts Interpretation
Act 1903 section 46(1)(a).
[27] AB v National Crime Authority (1996)
40 ALD 557.
[28] Quoted in AB v NCA, Federal Court
of Australia, unreported, 22 October 1997, p. 2.
[29] Evidence, 22.5.97, p. 214.
[30] Evidence, 8.10.97, p. 1168.
[31] A discussion of the role of the IGC in
the accountability process is contained in Chapter 5.
[32] NCA submission, evidence, 22.5.97, p.
279.
[33] For example:Mr Malcolm Gray representing
the SA Bar Association in evidence, 10.6.97, p. 522.
AUSTRAC Director Ms Elizabeth Montano evidence, 22.5.97, p. 169.
Mrs Susan Crennan, former chairman, Bar Council of Victoria evidence,
11.6.97, p. 629. Queensland Director of Public Prosecutions, Mr Paul Rutledge,
evidence, 21.5.97, p. 64.
[34] Evidence, 21.5.97, p. 14.
[35] Evidence, 21.5.97, p. 68.
[36] Evidence, 11.6.97, pp. 614-5.
[37] Evidence, 11.6.97, p. 629.
[38] Evidence, 12.6.97, p. 875.
[39] Evidence, 12.6.97, p. 876.
[40] Evidence, 22.5.97, pp. 214-215.
[41] Evidence, 22.5.97, p. 300.
[42] ibid. p. 298.
[43] CLER, pp. 110-111.
[44] Evidence, 22.5.97, p. 24.
[45] Director of Public Prosecutions Reference
No. 2 of 1996, dated 26 September 1997, p. 5.
[46] Evidence, 8.10.97, p. 1168.
[47] Senator Gareth Evans Second Reading Speech,
Senate Hansard, 10.11.83, p. 2494.
[48] Mr Broome, evidence, 8.10.97, p. 1177.
[49] Evidence, 8.10.97, p. 1175.
[50] Evidence, 10.6.97, p. 522.
[51] Evidence, 22.5.97, p. 274.
[52] Evidence, 4.6.97, p. 466.
[53] ibid. p. 486.
[54] ibid. p. 468.
[55] ibid. p. 486.
[56] Evidence, 22.5.97, p. 156.
[57] ibid. p. 156-7.
[58] Evidence, 22.5.97, p. 156-7.
[59] Evidence, 11.10.97, p. 616.
[60] Evidence, 11.6.97, p. 615.
[61] ibid. p. 616.
[62] Submission No. 40, p. 1.
[63] Evidence, 10.6.97, p. 537d.
[64] Evidence, 11.6.97, p. 637.
[65] Evidence, 22.10.96, p. 24.
[66] ibid.
[67] ibid.
[68] ASC Act, section 21.
[69] TP Act, section 155.
[70] Evidence, 22.6.97, p. 410.
[71] Evidence, 2.6.97, p. 389.
[72] Evidence, 22.10.96, p. 24.
[73] NCA Act, sections 13(2) and 14(2).
[74] Evidence, 2.6.97, p. 385.
[75] Evidence, 21.5.97, p. 141D.
[76] Evidence, 2.6.97, p. 397.
[77] Evidence, 10.6.97, p. 537d.
[78] Evidence, 4.6.97, p. 486.
[79] Evidence, 21.5.97, p. 64.
[80] ibid p. 65.
[81] Submission no 41, p. 4.
[82] ibid.
[83] NCA Annual Report 1996-97: Box 4.3 on
p. 32.
[84] Evidence, 8.10.97, p. 1177.
[85] Evidence, 22.5.97, p. 169.
[86] Evidence, 22.5.97, p. 169.
[87] ibid. p. 277.
[88] Evidence, 2.6.97, p. 387.
[89] See Recommendation 5.
[90] CLER, p. 105.
[91] Evidence, 2.6.97, p. 397.
[92] Senator Gareth Evans Second Reading Speech,
Senate Hansard, 10.11.83, p. 2494.
[93] Evidence, 2.6.97, p. 385.
[94] ibid. p. 397.
[95] ibid. p. 396.
[96] ibid. pp. 395-6.
[97] ibid. p. 397.
[98] ibid. p. 397.
[99] ibid. p. 410.
[100] Evidence, 21.5.97, p. 98.
[101] Evidence, 4.6.97, p. 485.
[102] Evidence, 21.10.96, p. 30.
[103] One reference, for example, authorises
the Commission to use its coercive powers to investigate 'the problem
of the manufacture and supply of amphetamines': New South Wales Crimes
Commission Annual Report 1996-97, p. 13.
[104] NCA Act, section 13(2A).
[105] NCA Act, section 14(3).
[106] Evidence, 11.6.97, pp. 634-5.
[107] Evidence, 2.6.97, p. 396.
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