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CHAPTER FIVE
ACCOUNTABILITY AND PARLIAMENTARY SUPERVISION
In an understandable endeavour to make the body independent , so
that it can pursue its targets without the risk of interference by corrupt
or unsympathetic politicians, there is a very real danger of creating
an institution which is largely unaccountable to the democratic elements
of our government; unable, because of the secrecy of its operations,
always to justify its work and its position publicly; prone, by the
nature of its mission, to take on an evangelistic, even messianic role;
and able, by the sharing of selected secrets, to win over even initially
sceptical or unsympathetic administrators or politicians admitted into
its secret world and to its assessments and points of view. [1]
INTRODUCTION
5.1 Like all public agencies in the Commonwealth Government sector, the
NCA is accountable to the Australian public, through the Parliament, for
how well it is performing the tasks it has been established to perform
and how well it puts its budgetary appropriation to use. As a law enforcement
agency, especially one with access to the types of coercive powers made
available to the NCA by the Commonwealth, State and Territory Parliaments,
the risks to the community of an agency which is not subject to a system
of external accountability could be considerable.
5.2 There is some conflict for the NCA, however, between the concepts
of efficiency and accountability, which it has addressed in its annual
report in the following terms:
Under the NCA Act, the secrecy of investigations must be preserved
and this sometimes prevents public comment on or disclosure of information
which may otherwise be desirable. In addition, the legislative framework
imposed by Australian parliaments places a strong emphasis on protecting
privacy and matters under investigation. Such constraints are sometimes
used to imply the NCA is not accountable. This is not so. [2]
5.3 The NCA's submission to the PJC dealt at length with its accountability
requirements. In summary, the NCA rejected any suggestion that it is unaccountable.
It wrote:
In addition to accountability requirements placed on any Commonwealth
Government agency, the NCA has a number of statutory accountability
arrangements specifically imposed upon it. This is only proper as the
NCA uses coercive powers which go beyond the powers available to most
other law enforcement agencies. Accordingly, the use of the NCA's powers
generally, including its coercive powers, needs to be appropriately
supervised. [3]
5.4 This supervision comes from a range of monitoring devices and review
mechanisms. In recognition of its function as a national law enforcement
body empowered to operate in all jurisdictions the NCA is essentially
overseen, in a role akin to a Board of Directors, by the Inter-Governmental
Committee (IGC). The IGC was established by the NCA Act and consists of
the ministers with responsibility for police matters from the Commonwealth
and all States and Territories, under the chairmanship of the Commonwealth
Attorney-General. It principally determines the areas of operation where
the NCA has access to its coercive powers and generally monitors the work
of the NCA.
5.5 Oversight of the NCA is also provided by the Parliamentary Joint
Committee on the National Crime Authority (PJC). The NCA is one of only
two governmental agencies which are oversighted by a dedicated parliamentary
committee, the Australian Security Intelligence Organisation being the
other. [4] The PJC has a statutory duty to monitor
and review the performance by the Authority of its functions although,
as discussed later in this Chapter, the PJC's role as currently formulated
is arguably relatively limited.
5.6 As a statutory agency of the Commonwealth Parliament, the NCA is
accountable through its portfolio minister (generally either the Attorney-General
or the Minister for Justice), to the Commonwealth Parliament. The Minister
is answerable to the Parliament for any concerns raised by the Parliament,
for example in relation to the NCA's budget. The NCA appears on a regular
basis before the Senate's Legal and Constitutional Legislation Committee
to respond to queries about the uses to which its budget are put.
5.7 The NCA is subject to scrutiny by the Auditor-General both in relation
to the regularity of its financial statements but also in respect to its
performance of its functions. [5]
5.8 The Commonwealth Ombudsman has specific functions in overseeing aspects
of the NCA's operations, such as how the NCA uses its powers to intercept
telephones pursuant to the Telecommunications (Interception) Act 1979.
5.9 Decisions by the NCA are subject to review under the Administrative
Decisions (Judicial Review) Act 1997 and it is also subject to the provisions
of the Freedom of Information Act 1982.
5.10 The courts play, arguably, the most prominent role in holding the
NCA accountable for the use of its powers. The NCA told the PJC that `[t]here
is nothing that a member of the Authority can do which is not reviewable
by the courts'. [6] The NCA stressed that, before
exercising its coercive powers, it gives consideration to the legal ramifications.
Its submission noted:
It should be borne in mind that, while two cases in 1996 cast doubt
on the NCA's exercise of its coercive powers, [7]
pursuant to references, a considerable body of litigation with which
the NCA has been involved since its inception has almost invariably
found that the NCA acted lawfully and within its powers. [8]
5.11 Another form of accountability arises from the NCA's consideration
of complaints from members of the public. The NCA Act is silent on the
approach to be followed for the making of a complaint and the system for
the consideration of complaints. Complaints made orally or in writing
against the NCA or its officers are referred to the Chairperson for consideration.
In most instances, the Chairperson then directs appropriate officers to
undertake inquiries on his behalf and he is publicly accountable for the
decisions he makes in resolving the complaint.
5.12 Finally, while it is not a formal accountability mechanism, the
role of the media in ensuring the proper conduct of the NCA should not
be understated.
5.13 The PJC notes the advice of Mr Broome in private correspondence
to the PJC that 'the Authority is probably the most accountable law enforcement
agency in Australia'. The issue for the PJC is to ensure that these accountability
mechanisms are adequate in terms of their quality and effectiveness.
THE ROLE OF THE INTER-GOVERNMENTAL COMMITTEE
5.14 Section 9(1)(e) of the NCA Act requires the IGC `to monitor generally
the work of the Authority'. To assist this process, the Authority is required
to provide the IGC, on request, with information about specific investigations
and the general conduct of its operations (NCA Act sections 59(3)-(5)).
5.15 The reasons for the establishment of the IGC were described in 1984
in oral evidence by the then Attorney-General, Senator the Hon. Gareth
Evans, to the inquiry into the NCA Bill by the Senate Standing Committee
on Constitutional and Legal Affairs as being threefold:
- the constitutional imperative. The Commonwealth has no power to authorise
the NCA to investigate offences against State laws;
- the pragmatic imperative. The need to involve the States and Territories
in the institutional organisational machinery to gain their practical
cooperation; and
- the political imperative. The involvement of a particular State or
Territory in a proposed reference requires the assent of its government,
as represented by a minister.
5.16 The then Senator Evans noted:
... you have three separate pressures operating and they are all combined
to produce the particular model which, despite its Heath Robinson appearance
to many people, including myself, is the only model which I believe
satisfies the various pressures that are operating and produces those
results. [9]
5.17 The current PJC finds itself in a somewhat similar predicament to
its predecessor in 1991 which found that there was only limited evidence
in the public domain of the IGC's activities and little comment during
its hearings on the IGC's performance [10]
apart from the advice of the NCA Chairperson, John Broome, that it meets
twice a year. [11]
5.18 The role of the IGC in relation to granting references to the NCA
for use of its special powers is well known. John Broome told the PJC:
Effectively, our general directions are determined by the inter-governmental
committee of ministers ... We have been conducting both strategic intelligence
assessments of those areas of activity [identified in CLER] and then,
with the agreement of the IGC, focusing on particular areas of priority.
[12]
And:
The work that we are doing now and the way we are doing it has been
endorsed by the IGC now for a number of years through changes of individual
ministers and indeed changes of governments in various jurisdictions.
I think it is widely accepted that that is the appropriate course of
action ... At the end of the day, it is the IGC which drives that process.
We are obviously strongly consulted in that; our views I think would
have some substantial weight. [13]
5.19 Officers of the Attorney-General's Department emphasised the important
role played by the current references system in enabling the IGC to oversight
the NCA:
At the moment with relatively specific references, it is quite easy
to lay down a regime of reporting back and it is quite easy to look
at the development of the investigation and the direction which it is
heading. [14]
5.20 The PJC was informed by Mr Smeaton that, in recent years, the IGC
has put time limits on references, requiring the NCA to report back, as
a discipline on the NCA to complete its investigations by a specific time.
The reference is not necessarily terminated at that time by the IGC, except
where completed, and would be reissued where inquiries are still being
fruitfully followed. [15]
5.21 Submissions clearly envisage the continuation of the IGC in its
current form, especially in relation to its role in granting references,
thereby specifying the NCA's 'menu' of work. Its continuing role in this
respect will emphasise the NCA's unique multijurisdictional nature compared
to other comparable law enforcement agencies, such as Queensland's Criminal
Justice Commission which, as an intrastate agency, has been given sole
discretion over what inquiries it undertakes. [16]
The continuation of the references system and the IGC's role in that is
discussed in detail in Chapter 3.
5.22 While the PJC in 1991 described the IGC as little more than 'a rubber
stamp' [17] the current PJC did receive some
useful comment in relation to its operations. Ms Betty King QC, who
as a former NCA Member had the benefit of firsthand experience of the
operations of both the IGC and the PJC noted:
The IGC met on a regular basis. It had coordinated times when it would
meet. It certainly seemed to be very aware of what the Authority was
doing but it had bigger sources of information in that each member of
the IGC will have with him or her the Commissioner of Police, with whom
we worked relatively closely. So their sources of information were very
up to date by comparison to the PJC and their role was quite different.
I certainly felt that there was far more intense scrutiny from the IGC
than the PJC. [18]
5.23 The significance of Ms King's view is the indication that although
the IGC's processes may 'not be as public as people would like' [19]
(and therefore open to doubt), the IGC was performing an effective role
in its oversight of the Authority. In relation to the relative invisibility
of the IGC's activities the NCA submission noted: 'While its [IGC] deliberations
are confidential, the outcome of IGC meetings is almost invariably the
subject of some publicity'. [20]
5.24 One concern about the IGC is the scope for politics intruding into
its operations, essentially because it is made up of politicians. Mr Frank
Costigan, for example, noted that the NCA was largely absent when there
were concerns about the activities of certain state governments in the
1980's, which he suggested 'might have been an unspoken kind of veto'.
He agreed that the converse may also apply, where a reference might be
given with an overt political intent. [21]
5.25 Few witnesses, however, saw merit in such views, pointing to the
fact that, at any one time, IGC members would come from different political
persuasions and that should be a sufficient safeguard. [22]
It should also be noted that, according to Mr Broome, he was not
aware of the IGC ever rejecting a proposed reference. [23]
5.26 The AFPA had no doubt that the IGC set terms of reference only on
the advice of the NCA and of the police services. It saw that as one reason
to fundamentally question the role of the IGC, arguing that the NCA and
the police commissioners rather than the ministers should be relied on
to set the NCA's agenda. This would have the added advantage of removing
the potential for political partisanship and allegations of it under the
current system. [24]
5.27 The PJC also notes that, while the members of the IGC are subject
to accountability requirements within their individual parliaments, more
time is spent examining the activities of the NCA by the Federal Parliament.
The role of the Standing Committee on Organised Crime and Criminal
Intelligence (SCOCCI)
5.28 While the AFPA's implication of the IGC's 'rubber stamp' role is
a familiar refrain since, from a public perspective, the IGC seems to
endorse whatever recommendations are put before it by the NCA, the critical
element in the process is the formal and informal negotiations which take
place before a matter is listed on the IGC's agenda. It is in this respect
that SCOCCI is playing an increasingly critical role and one which various
submissions argued should be formalised and augmented.
5.29 The IGC role is primarily to determine the broad direction of the
Authority's investigations. By meeting only twice a year, its directions
would necessarily be very broad. While no organisation is subject to a
day-to-day accountability process, some more intensive scrutiny would
seem desirable for the NCA.
5.30 SCOCCI's functions include:
to recommend to the IGC priorities and resources to be applied to national
projects, particularly those of the NCA;
to monitor NCA joint task force operations, including post operational
analysis, and provide reports to the IGC; and
to supervise the co-ordination of the criminal intelligence system
in order to ensure the full exchange of intelligence in projects of
potential interest to the IGC.
5.31 Each of the members of SCOCCI who gave evidence before the PJC was
an advocate for its role. The strongest expression of support for SCOCCI
came from the Queensland Police Service, which suggested that consideration
be given to enshrining the functions and duties of SCOCCI and the SCOCCI
Working Group into the NCA Act. The QPS submission noted that:
... from a Queensland perspective SCOCCI is a positive move, an expression
of the States' and Territories' commitment to work together, co-ordinated
by the NCA, in dealing with national issues in a way which is responsive
to local and regional needs. [25]
5.32 Chair of the Criminal Justice Commission (CJC), Mr Frank Clair also
spoke favourably of the desirability of ensuring that SCOCCI was used
to achieve coordination and avoid duplication, in order to maximise the
resources that go into the fight against organised crime. He said:
I think it is fair to say that the third meeting [of SCOCCI] ... was
clear evidence of just how that body can begin to operate very effectively.
There was a very good exchange of views about matters that really count.
I came away from that meeting with the feeling that SCOCCI will be a
very worthwhile organisation. [26]
5.33 A similar level of support was expressed for the operations of the
SCOCCI Working Party which looks more specifically at the operational
aspects of the NCA's activities in relation to its various references
and how they impact on the States.
5.34 Western Australian Police's Assistant Commissioner Mott noted that:
It provides each of the law enforcement agencies with the opportunity
to closely examine the various references in respect to how they are
operating within each of the states in terms of monitoring the progress
of those references and ensuring that they are proceeding in the best
interest of law enforcement generally across Australia and particularly
in terms of the states' involvement. [27]
5.35 The ABCI noted that it had had a longstanding concern with the NCA's
level of co-operativeness with its intelligence database, which had been
debated at ministerial level from time to time but without resolution.
ABCI Director, Greg O'Neill, referred to the joint membership of SCOCCI
by both the NCA and the ABCI which he saw as a closer linking of the two
bodies. [28] Mr Broome commented that, through
the work being undertaken as part of SCOCCI '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'. [29]
5.36 Acting Chief Executive Officer of the Australian Customs Service,
Mr Michael Roche, noted the good relationship between his organisation
and the NCA and noted that their joint membership of various coordinating
committees, including SCOCCI, gave Customs an opportunity to influence
the way in which the NCA undertakes investigations in which Customs has
an interest. [30]
5.37 Mr Smeaton stressed that SCOCCI is the principal advisory body to
the IGC. He said:
I would submit to you that the establishment of SCOCCI is producing
those coordinated results and that coordinated advice to the IGC, such
that the national law enforcement effort is much more focused, much
more structured and indeed, more successful. [31]
And:
There is no doubt in my mind that the free exchange of criminal intelligence
information is the key to the best outcome. I believe, through SCOCCI,
and through the arrangements that my agency has put in place at the
Commonwealth level, that we are now achieving very effective intelligence
assessments. [32]
ROLE OF THE COMMONWEALTH LAW ENFORCEMENT BOARD (CLEB)
5.38 It should be noted that SCOCCI was created, in part, as a result
of concerns by the States and Territories about the Commonwealth's proposal
to create the Commonwealth Law Enforcement Board (CLEB) to provide a forum
to better coordinate and focus strategic alliance in the Commonwealth's
law enforcement effort.
5.39 Betty King was outspoken in her criticisms of CLEB. She noted that,
during her term as a member of the NCA:
... it [CLEB] seemed to be intent - I do not know whether things have
changed - on forcing decisions upon the NCA that in my view were not
decisions it should be forcing upon us ... it seemed to me that the
CLEB ... really ought not make decisions that impact upon how the NCA
runs its business. [33]
5.40 She also noted the potential for conflict of interest between the
chair of the NCA also being ex officio chair of CLEB. Her view was that
decisions about the Authority are decisions for the Authority. Ms King
summarised her view of CLEB as 'largely an unnecessary organisation'.
[34]
5.41 Mr Frank Costigan was also critical of 'a gradual and bureaucratic
movement away from the principles which lay behind the establishment of
the NCA. It was always intended to be an independent and powerful institution
...' [35]
5.42 NCA chairperson, John Broome, rejected the argument that his joint
chairing of the NCA and CLEB represented a conflict of interest. He said:
The agencies are trying to get the best result for the Commonwealth
agencies which are involved. That is what we are trying to do and we
work together very cooperatively. I just do not think that the conflict
argument arises. [36]
5.43 The PJC accepts that the role of CLEB is a strategic one in relation
to the whole-of-Commonwealth Government law enforcement effort and that
it is desirable that the Commonwealth receives the best possible policy
advice from its officers, both employed and statutory, especially in relation
to its role of chairing the IGC.
5.44 The arguments about the level of NCA independence ignore the Parliament's
conscious decision in the NCA Act to give the Minister (with the IGC's
approval) an express power to give directions or furnish guidelines with
respect to the NCA's performance of its functions 'and the Authority shall
comply with any such directions or guidelines'. [37]
5.45 Like any statutory authority of the Commonwealth, the Authority
is a creation of the Parliament, gains its charter and budgetary appropriation
from the Parliament and, accordingly, its 'independence' is far from absolute.
5.46 The PJC nonetheless accepts the argument that the chairperson of
the NCA should not also be chair of CLEB. The head of the NCA is an important
position and the primary responsibility of the incumbent should be to
that role. The chairing of CLEB on an ex officio basis may not, as claimed
by Mr Broome, involve a conflict of interest but the PJC is concerned
about the perception of a conflict between the two roles. It could be
argued that, in seeking to implement a Commonwealth policy decision made
through the CLEB process, the NCA may be required to act in a manner contrary
to the interests of the States and Territories represented on the IGC.
The chairperson of the NCA should be beyond reproach in such respects.
Recommendation 16: That the Chairperson of the National Crime Authority
should not also be chair of the Commonwealth Law Enforcement Board.
DISCUSSION
5.47 The initiators of SCOCCI, Messrs Avery and Bingham, noted in their
report the problems they saw as in need of being addressed:
These included the lack of an effective management system for combating
organised crime; the need for more accurate measures for assessing threats;
that there was a lack of cohesion in the intelligence network; that the
present meeting arrangements needed to be rearranged to better allow the
commissioners and agency heads to assess threats and priorities for action
so that they may be better prepared to advise the IGC. [38]
5.48 It is apparent from the evidence cited above that SCOCCI, while
a relatively new initiative, is developing a very positive reputation
as the means for coordination of the national law enforcement effort and
for influencing the parameters and operations of the NCA.
5.49 It is also apparent that, while the reasons for the establishment
of the IGC remain valid, the NCA is essentially in a relatively arms length
accountability relationship with the IGC, with the more intensive scrutiny
process being largely undertaken by SCOCCI and its Working Group.
5.50 The PJC notes that the New South Wales Crime Commission has a Management
Committee with functions similar to those of the IGC. The Management Committee
comprises the Minister for Police, the Commissioner of Police, the NCA
Chairperson, and the Commissioner of the Commission. Significantly, the
NSW Commission's Management Committee meets relatively frequently, on
10 occasions in 1996-97.
5.51 The PJC also notes the recommendation of the AFPA (with PFANZ support)
that 'the IGC should be first supplemented by a formal inclusion of all
Australian police commissioners and then ultimately replaced by a board
of Australian police commissioners'. [39]
5.52 The PJC is strongly of the view that SCOCCI should be given a more
formalised role in relation to the NCA in recognition of the importance
of the NCA's partnership with other Commonwealth, State and Territory
law enforcement agencies. Messrs Avery and Bingham saw SCOCCI providing
an important step in the accountability process, with its reports to the
IGC regarding proposals for action to be approved and for post investigational
assessments of operational efficiency 'allowing Ministers a greater opportunity
to discharge their responsibilities to the Australian electorate'. [40]
Recommendation 17: That the Standing Committee on Organised Crime
and Criminal Intelligence be recognised in the statute as an advisory
body to the National Crime Authority.
PARLIAMENTARY SUPERVISION
5.53 Much has been written about the appropriateness of the system of
parliamentary supervision of the NCA over its 13 year history. The PJC
notes, more in frustration than despair, that nothing has changed to regularise
a situation which has long been recognised as inadequate. Before addressing
the more topical evidence, the PJC will describe some of the major steps
in this issue's sad history.
Passage of the 1983 NCA bill
5.54 The debate about the establishment of a permanent parliamentary
committee to monitor the NCA's performance was one of the issues to which
specific consideration was given by the Senate Standing Committee on Constitutional
and Legal Affairs in its 1984 report on the NCA Bill. [41]
Its report deliberated on the adequacy of the Bill's proposals for an
accountability system based on regular judicial audit, the Ombudsman's
jurisdiction (over complaints), and parliamentary supervision through
such traditional vehicles as annual reports (which were subject to scrutiny
by both the Parliament and the relevant Senate standing committees) and
Senate estimates committees.
5.55 The majority report considered that none of the proposals (judicial
audit, the jurisdiction of the Ombudsman and the establishment of a permanent
parliamentary committee), would provide any more effective accountability
than the ordinary methods of parliamentary supervision and speedy access
to the courts.
5.56 There were several dissents to the majority findings in these several
respects. The concept of a permanent parliamentary committee was supported
by two dissenters, Senators Missen and Chipp, while Senators Bolkus and
Crowley specifically rejected the concept. Senator Missen, in supporting
the proposal put forward by several witnesses for a parliamentary committee,
including Mr Frank Costigan, saw it as providing a continuing input and
method by which Parliament could be constantly informed of the Authority's
activities. He rejected the majority's argument that such a committee
would not have time to undertake the task, that it might become too close
to the Authority, and that existing committees could adequately perform
the scrutiny role. [42]
5.57 Senators Bolkus and Crowley, both Government members, expressed
support for the accountability measures contained in the original Government
Bill. Senator Crowley emphasised her support for the oversight of the
Authority to be undertaken by normal parliamentary procedures, while Senator
Bolkus noted that a specific parliamentary committee would need to have
the powers of a `McCarthy Committee' for it to be effective, which was
totally unacceptable to him.
5.58 Part III of the NCA Act, which establishes the PJC, was inserted
by the Senate during its deliberations on the Bill in 1984. The amendment,
which was in effect proposed jointly by the Australian Democrats and the
Opposition, was opposed by the Government in the Senate but, once inserted,
was accepted in the House of Representatives. Part III replaced both the
judicial audit and Ombudsman proposals in the original Bill.
5.59 According to Senator Chipp, the mover of the amendment to establish
the PJC:
I can see a committee of members of parliament - preferably a joint
committee of members of the House of Representatives and members of
the Senate - sitting as a watchdog on this Authority as entirely appropriate.
It could perform the two functions. It could be a vehicle to receive
complaints from people outside to the effect that the Authority is not
doing its job, has not pursued a particular investigation, or has disregarded
evidence of criminal behaviour which it should have regarded. Further,
if somebody has his or her civil liberties infringed, it could be a
vehicle to receive complaints of that sort.
I do not know how effective such a joint committee on the National
Crime Authority could be. Certainly it could not do the all embracing
job that the Attorney-General envisages that a judicial audit could
do, but neither do I believe that a judge could do the same. But it
would keep the Authority conscious that there is somebody there, namely
a group of members of parliament, who will act as a vehicle for the
receipt of complaints about the Authority's behaviour. To that extent
I believe it will be as effective as, if not more effective than, the
protection which the Attorney-General wants to write into the legislation,
namely, involving the Ombudsman and the judicial audit. [43]
5.60 Senator Chipp received the support of the then Opposition, but with
individual Opposition Senators, such as Senator Lewis, expressing the
view that the proposed PJC would be `ineffective'. [44]
5.61 Senator Evans, then Attorney-General, summed up the Government's
view on the proposal to replace the Ombudsman with a parliamentary committee
to deal with complaints against the NCA in the following terms:
The Government does not see any proposal of the kind that is now before
us for a parliamentary committee as an alternative remedy or form of
redress for the kind of individual complaint we are here talking about
... nothing in this Part which, on the face of it, gives very wide ranging
jurisdiction, authorises that kind of investigation.
5.62 And he added, in relation to the general question of whether the
proposed PJC would be an effective means of supervising the Authority:
To be effective the Committee would presumably need to know in quite
considerable detail how the Authority conducts its affairs. It would
need to be able to call for information on specific matters, not in
order perhaps, observing the letter of sub-clause (2) [now section 55(2)],
to reinvestigate or investigate those matters, but in order to see for
itself how the Authority has in fact operated. That creates a situation
in which knowledge of these matters would be held by the 10 members
of the committee and their staff and the possibility of leakage, disclosure
and so on as a result of that operation is all too obvious. If the Authority
puts up the shutters and, because of its concern about leakage, refuses
to disclose to the parliamentary committee any detailed information
other than that which is contained in its annual report and so on, it
seems to me that the capacity of the committee for effective supervision
will not be over and above that which can be given by the Senate Standing
Committee on Constitutional and Legal Affairs, and all the rest of the
ordinary committee apparatus with its responsibility for reviewing annual
reports. There is real doubt whether this committee could go further
than that. [45]
The relevant amendment inserting what is now Part III of the Act was
eventually carried without a division.
5.63 In summary, the debates on the Bill suggest that it was intended
that, in carrying out its monitoring and reviewing function, the PJC would
meet regularly with the Authority and be briefed on the general areas
the Authority was investigating and on the Authority's procedures. The
PJC would not investigate or re-examine particular cases but it would
be a 'watchdog' on the authority, examining complaints that the Authority
was not performing its functions, had not pursued particular investigations
or had not investigated evidence of criminal behaviour which it should
have investigated. At the same time it was envisaged that the PJC would
also operate as a vehicle to receive complaints from people that the Authority
had infringed their civil liberties.
5.64 In the sections that follow, the PJC will briefly outline its subsequent
operations, in particular in relation to its conduct of the complaints
handling role. It is important to stress that, despite the almost constant
criticism of this part of the NCA Act as originally enacted, it has never
been amended.
The Committee's operations - the early years
5.65 The PJC was not fully functional until March 1985. [46]
By November that year it was reporting to the Parliament in its First
Report that, having met with the Authority on four occasions, it had become
apparent during that time that there was a fundamental difference of view
between the Authority and the PJC about the basis on which the relationship
between the two bodies should operate.
5.66 As the report noted:
the interpretation of the Committee's powers favoured by the Authority
effectively means that the Committee cannot discharge the duties vested
in it by the Parliament. [47]
5.67 The PJC acknowledged the Authority's genuine concerns that divulging
information beyond the limits established by its interpretation of section
55(2) (which places certain constraints on the extent of the PJC's activities)
would put the NCA in breach of the Act's secrecy provisions contained
in section 51. The PJC also suggested that the NCA had other motives for
withholding sensitive, operational material from it. The report noted
that:
The Authority appeared concerned that information which it released
to the PJC would find its way into the public arena, thereby giving
rise to the possibility of any or all of three serious consequences.
First, if it became public knowledge that a person was under investigation
by the Authority and that person was subsequently charged, the chances
of a fair jury trial would be considerably diminished. Secondly, reduced
security with regard to the Authority's operations would carry a real
possibility of danger to the lives of the Authority's investigators.
Finally, the Authority referred to the possibility of jeopardising the
success of its investigations. [48]
5.68 The PJC concluded that, unless the Act was appropriately amended
along the lines as recommended in the report, there was no point in retaining
a parliamentary committee to act as a watchdog over the National Crime
Authority. It added:
Indeed, in the absence of the necessary amendment, the retention of
the Committee would be a charade, as it provides the appearance but
not the substance of the Authority's accountability to Parliament. [49]
5.69 The PJC recommended that:
(a) that the Parliamentary Joint Committee on the National Crime Authority
should have the power to do such things and make such inquiries as it
thinks necessary for the proper performance of its duties; and
(b) that where information sought by the Committee is of such a nature
that its disclosure to members of the public could prejudice the safety
or reputations of persons or the operations of law enforcement agencies
then it should be made the subject of a separate report to the Chairman
and Deputy Chairman of the Committee.
Later developments
5.70 In its 1988 Initial Evaluation report the PJC repeated views from
its Second Report that a working relationship had been agreed between
the PJC and the NCA at a meeting with the then Special Minister of State,
the Hon. Mick Young MP, on 1 May 1986. The working relationship was described
as a 'compromise':
... the Authority briefs the Committee on matters such as staff and
resources, legislative constraints, completed investigations and operations
which have entered the public domain but the Committee does not press
the Authority for operationally sensitive information ... In addition
the Committee has received a wealth of written information including
detailed briefs on each of the Authority's investigations. The Committee
thus has a sound understanding of how the Authority views its task and
how it goes about its work, without being privy to operational details
of its investigations such as persons whom the Authority may have under
surveillance, the identity of its informants and the like. [50]
5.71 Whether this working relationship ever operated to the satisfaction
of the parties is now a matter for conjecture. What is known is that by
the end of 1990 two Senators who were PJC members had presented private
Senator's bills [51] with the intention of
confirming the Parliament's original aspirations for the operations of
the PJC as the body which would 'monitor and review' the NCA by ensuring
its access to such NCA information as it deemed necessary. These moves
were in response to differing opinions of the then Solicitor-General and
the Clerk of the Senate as to the meaning of the relevant provisions of
the NCA Act and the application of parliamentary privilege. [52]
The bills sought to either amend section 51 of the NCA Act to confirm
that there was no breach of the secrecy provision when the NCA provided
to the PJC information it had sought, or to amend section 55 to clarify
what areas of the NCA's activities the PJC was proscribed from examining,
or both.
5.72 These themes were taken up and developed by the PJC when it undertook
its 1990-91 evaluation of the NCA and were addressed in its Who is to
Guard the Guards? report, but only after it had first rejected a dramatic
call for its abolition contained in the submission of the IGC. In calling
for the re-introduction of the judicial audit concept, the IGC argued
that the experience of the previous six years had failed to support the
proposition that a parliamentary committee was a more effective form of
accountability than the principle of ministerial responsibility, supplemented
by a statutory provision for a judicial audit. [53]
5.73 The PJC rejected the IGC's proposition that it should be abolished,
suggesting that the IGC had not advanced cogent reasons in support of
its case. Several prominent witnesses in fact argued in support of the
crucial role played by the PJC in holding the NCA accountable. The PJC
was also reassured by observing that parliamentary committees had been
similarly established by the State Parliaments of New South Wales and
Queensland to oversight equivalent law enforcement agencies within their
jurisdictions. [54]
5.74 The PJC's recommendations for reform of sections 51 and 55 of the
Act were intended to achieve similar outcomes to those of Senator Crichton-Browne's
and Senator Spindler's private Senator's bills by removing the statutory
impediments to the PJC's access to NCA information. The majority report
indicated that its preferred option was for the PJC to be provided with
unrestricted access to information from the NCA. However, it was recognised
that there was a need for restrictions to be placed on the disclosure
of operationally sensitive material and that there was a need for an independent
arbiter to be appointed to resolve any dispute between the PJC and the
Authority in this respect.
5.75 While the majority of the PJC saw the Minister having portfolio
responsibility for the NCA as being the appropriate arbiter, Senator Spindler
favoured a Federal Court Judge to act as a private arbiter (ie not as
a judge of the Court) because of concerns about the Minister's impartiality.
The 1992 bill
5.76 The Government's response to the PJC's Who is to Guard the Guards?
report was tabled on 1 June 1992. Its contents had the concurrence of
the IGC. Notably, the IGC did not persist with its view that the PJC should
be abolished. [55]
5.77 The Government introduced provisions in the National Crime Authority
Amendment Bill (No. 2) 1992 to implement those aspects of its response
which required legislative reform. Its fate was summarised in the NCA
Annual Report for 1992-93 in the following terms:
The Bill received broad Parliamentary support except on the question
of provision of sensitive NCA information to the PJC. While there was
agreement on the need to address the issue, there was disagreement on
the appropriate solution.
The approach initially taken in the Bill was that, in the case of disagreement
between the PJC and the NCA as to whether particular information was
sensitive, the Attorney-General would determine the question, and could
seek the advice of the Inspector-General of the NCA in so doing. Disputed
information would not be provided to the PJC until after the Attorney
had made a decision in favour of its release. This scheme was amended
in the Senate. The main difference between the original and amended
scheme was that the process described above would commence after the
PJC had obtained the information (essentially a control on disclosure
by the PJC rather than a control on the Committee's access). The amended
Bill was laid aside by the Attorney-General on 16 December 1992. [56]
5.78 Some five years later, the issue remains unresolved. [57]
The Committee's current inquiry
5.79 Having been re-established in May 1996 with nine of its 10 members
new to the PJC, the evidence of former NCA Member, Ms Betty King, at its
first public hearing in October 1996 demonstrated the difficulties that
the PJC faced. When asked to comment on the role of the PJC and her observation
that it appeared to lack interest in performing its role during her term,
she stated:
I think, to a large degree, it was a faulty design. I do not know that
you can ask a body such as this to necessarily scrutinise the NCA in
the way it was originally thought that it would, and that is certainly
not in respect of operational material on a day-to-day basis. It is
very hard, I imagine, to expect every member of the parliamentary joint
committee to necessarily understand about some of the secrecy involved
in investigative work at particular stages. There must be
other temptations that would interpose. [58]
5.80 Ms King rejected the concept of a group of politicians oversighting
an organisation involved in secretive and dangerous work. She saw the
IGC as the primary accountability mechanism for the NCA and commented
approvingly of the Australian Law Reform Commission's proposal for an
external NCA 'ombudsman' to resolve complaints.
5.81 Former PJC Chairman, Mr Peter Cleeland, noted some of his more negative
experiences in that role, including quorum problems, some members having
to be conscripted to the PJC by their parties, and the overt political
actions of some of his colleagues. He stressed, however, that `because
of section 51 and section 55 this committee is not a watchdog committee'.
[59]
5.82 Mr Frank Costigan QC and Mr Bob Bottom, who were both involved in
the debate over the establishment of the NCA in the early 1980's and have
maintained an interest in its operations, both expressed support for the
role of the committee in supervising the Authority. Mr Costigan noted:
I was a great advocate for having some parliamentary supervision of
this kind over the crime authority. I did not get much support from
the government at the time but it was finally passed through the Senate.
You have got to have accountability. The more you give wide powers to
a body like this the more there has to be a proper basis for accountability.
I think it has to be on a parliamentary level, such as this committee.
[60]
5.83 He noted, however, the potential for leaking by politicians and
outlined a model where, rather than the PJC having access to operational
details, it devolves the task of examining such matters to trusted nominees
who can report in general terms on how the NCA is operating in practice.
5.84 Mr Bottom similarly recalled the early opposition to the establishment
of a parliamentary committee to oversight the NCA, especially because
of allegations against politicians at the time. He referred to the success
of equivalent committees in the United States in the 1950's and 1960's
in exposing organised crime - which had been instrumental in the establishment
of government crime commissions. He used these precedents to submit that
`there should be no bar to the PJC having full access to NCA material
if required and that the PJC itself should be prepared to hold public
hearings should matters of concern arise justifying public exposure, in
the public or national interest, especially matters involving corruption
of public officials. [61]
5.85 The PJC notes that, while its powers to hold public hearings under
parliamentary privilege and to summons witnesses and documents are powerful,
section 55(2)(a) of the NCA Act is restrictive of the PJC's capacity to
undertake the types of investigations envisaged by Mr Bottom.
5.86 Few other submissions addressed the operations of the PJC, perhaps
because of the esoteric nature of the concept of accountability. In most
cases, submitters referred to their satisfaction with the present system
of accountability and parliamentary supervision and saw no need for major
reform. Commissioner of the South Australia Police, Mr Malcolm Hyde noted:
Any organisation having the wide powers and significant Federal budget
allocation of the Authority must be made accountable for actions taken
and finances spent. A bi-partisan parliamentary committee is the appropriate
overseeing body, to which the Authority should report annually. This
committee should also conduct a full review of the Authority's operations
every five years. [62]
5.87 In addition, Mr Hyde recommended that the PJC should be assisted
with its annual and five yearly reporting arrangements by a four-person
sub-committee comprising a nominated executive police officer from a State
police service; a senior manager from the AFP; an independent QC and the
Federal Ombudsman. He saw this panel as having the advantages of investigational,
legal, political and complaints handling expertise, thus bringing a comprehensive
and independent perspective of accountability to the review process.
5.88 The AFPA observed that the PJC operates satisfactorily, although
pointing to the fact that on occasions its recommendations had been ignored
by the NCA. Its former National Secretary, Mr Chris Eaton, stressed:
The monitoring of the NCA by the joint committee should be uninhibited
by the secrecy provisions of the NCA Act. [63]
5.89 The NCA itself expressed support for the continuation of the PJC
as its 'watchdog'. In recognition of past conflicts between the two bodies,
its submission noted that `the management of the interface between the
PJC and operational issues has needed a degree of maturity on both sides
... it has evolved to the point where the NCA is as open as it can be
about what it does and how it does it, subject only to the clearest constraints
imposed upon it by the secrecy provisions of the NCA Act'. [64]
5.90 When asked whether the NCA is able to give to the PJC sufficient
information to enable it to make a reasonable assessment about the effectiveness
of its operations, Mr Broome responded:
We have already demonstrated in some earlier discussions with the committee
our preparedness to ensure that the committee is aware of the kind of
work that we are doing and why we are doing it. We are obviously very
circumscribed in what we can say publicly ... One can focus on how we
do things and the kinds of things we are doing without getting into
that prohibited area of direct operational information, but where you
can be satisfied that what we are doing is proper and well controlled.
...
Your reports and your conclusions do provide an independent assessment
of what we are doing and how well we are doing it. We have demonstrated
to date a preparedness to be, in confidential sessions, open with the
committee about the kinds of things that are being carried out, and
I will leave it to your good judgement whether what we are doing is
appropriate and whether we are doing it well. ...
What is obviously not appreciated by many people is that we do provide
written material to the committee, as we [do] to the IGC, and that a
lot of that material does demonstrate fairly clearly exactly what we
are doing and where it is being done and so on. [65]
5.91 Mr John Elliott, in noting that he did not believe that he had been
able to draw his complaints about the NCA's behaviour to the attention
of the PJC because of the secrecy provisions he was subject to, added:
I think it is impossible for a parliamentary committee to supervise
the NCA. They can snow you as they deem fit. We have already identified
that Mr Broome did not tell the truth to you in the public briefing
he gave you in March ... The problem is how can you, as a committee
question and, in effect test the truthfulness of what is going on? ...
When you interview the chairman of the NCA, you first listen to what
he says and you have no wherewithal to not accept what he says. [66]
SUMMARY
5.92 Despite the best efforts of the current PJC, it has encountered
a similar range of problems in its efforts to monitor and review the operations
of the Authority as those reported by its predecessors. It set out to
brief itself on what was required of it as soon as it was appointed and
it has conducted three public briefings with the NCA (and associated in
camera briefings) in 14 months. It has investigated any complaints made
to it until the matter was either resolved to its satisfaction or it had
determined that further inquiries were warranted. It has tabled several
reports which have demonstrated the important role which a parliamentary
committee can play in the accountability process. Some of the reports
have been critical of the Authority, which emphasises the independence
with which the PJC undertakes its functions.
5.93 The PJC also wishes to stress that the current Authority has always
cooperated with it to the fullest extent and has never sought to use sections
51 or 55 as grounds for not providing it with requested material. The
NCA also provides the PJC with a comprehensive quarterly report of its
operations which, because of their sensitivity, the PJC has treated with
appropriate secrecy. However, in recognition of the constraints on its
role, the PJC has exercised restraint in what respects it has sought advice
from the NCA and it remains concerned that there have been issues it has
not been able to resolve because of the statutory constraints.
5.94 The PJC cannot, of course, ignore the mixed reviews of its past
performance. It is aware that its predecessors may have been unable to
live up to some of the expectations of its initiators in the Senate or
of its proponents in the community at the time. As the discussion on complaints
handling that follows in Chapter 6 clearly demonstrates, the PJC has been
a poor substitute in this regard when compared to the originally proposed
Ombudsman.
5.95 The reasons for this past underperformance are no doubt many and
complex. As former PJC Chairman, Mr Peter Cleeland pointed out, the PJC
has been responsible for the production of a number of `far reaching and
innovative reports' [67] over the years. He
added that, in his view, it has the potential to use its powers of inquiry
`to report to the Parliament on a whole host of matters relevant to the
operation of the NCA and the growth of organised crime'.
5.96 However, the PJC's achievements in these respects can almost certainly
be ascribed to the fact that the members involved in the inquiries referred
to felt that they were engaged in a task which was socially beneficial
- the fundamental reason most individuals opt to seek a political life.
As currently structured, the PJC is simply not able to be effective in
the watchdog role for which it was intended. It is perhaps not surprising
that PJC members in the past, on realising the limits on their capacity
to achieve what the Parliament had intended them to achieve, had shown
only limited enthusiasm.
5.97 The current PJC, like its predecessors, is adamant that there is
an important role for a bi-partisan parliamentary committee to conduct
genuine scrutiny over the operations of the NCA, especially in relation
to the use of its special coercive powers, to protect the public from
their abuse or misuse. [68] The PJC would like
to think that citizens affected by the NCA's operations could bring their
concerns to the PJC's attention and that it would be able to act quickly
to resolve the matter.
5.98 Information is the life blood of accountability. Accordingly, the
PJC must be given the capacity to be able to obtain from the NCA such
information of substance as it requires to serve as a basis for the monitoring
and review role required of it by the Parliament. Without this capacity
the PJC finds itself in the position enunciated in its First Report of
November 1985: a charade, having little more oversight authority of the
NCA than would a standard parliamentary standing committee. The PJC wants
to make it clear that the status quo is unacceptable. It must either go
forward to a position of genuine scrutiny of the operations of the NCA
or it may as well cease to exist.
5.99 The PJC recognises the past political tensions in relation to the
release of sensitive information and about the manner in which there should
be an adjudication between the NCA's (and the Executive's) position on
the one hand and the PJC's aspirations on the other. The current PJC does
not have the strong views of its predecessors on this issue and is prepared
to accept the concepts for reform of sections 51 and 55 of the NCA Act
as envisaged by the unsuccessful 1992 amendment bill. These reforms will
essentially codify what is the current understanding of the PJC's rights
of full access to all information held by the NCA which is not deemed
to be sensitive by the NCA and provide a review process where disputes
arise.
5.100 As pointed out by Mrs Susan Crennan, however, the major flaw in
the NCA's accountability process will continue to be that it is `ex post
facto' with no external supervision of the conduct of NCA investigations
occurring at the time. [69] In particular,
the PJC has been largely restricted to a process of after-the-event review,
with access to the details of NCA investigations once they cease to be
operational.
5.101 The Inspector-General for the NCA which the PJC is recommending
in Chapter 6 be created for the purpose of examining complaints made against
the NCA (who will have the authority to look behind the curtain of NCA
operational secrecy), would be ideally placed to assist the PJC's efficient
functioning by acting as the investigatory arm of the PJC and report to
it in generalised terms on its findings. In this respect, the Inspector-General's
role could be likened to that of the Australian National Audit Office,
whose officers examine the records of Commonwealth agencies, checking
the legality and propriety of financial transactions, and reporting its
findings to Parliament. [70] Accordingly, the
Inspector-General must have access to the NCA's current operational files
although, it is stressed, any reports made to the PJC should not include
operational or sensitive material.
5.102 Even with the reforms suggested, it has to be recognised that the
IGC will continue to be the more powerful of the two monitoring committees.
It has the power to direct the NCA in what it does and to discontinue
what it is doing. It is consulted on the membership of the Authority itself.
It may even, with the relevant Commonwealth Minister as its chair, have
some influence over budgetary matters. The PJC does not have such powers,
nor does it seek them. They go beyond the proper role of parliamentary
committees to call the Government to account for the performance of its
executive responsibilities and to independently and fearlessly report
to the Parliament about its findings. It should not join with the Government
in the performance of its executive role.
5.103 Such changes to its role might, in fact, run the risks of the PJC
members losing their independence and being captured by the NCA's view
of the world (in the manner foreshadowed by Mr Justice Kirby as quoted
at the top of this Chapter). While the PJC, the IGC, the Government, and
the NCA all share a strong common purpose - the attack on organised crime
- it is important that their roles are distinct and, where necessary,
at arms length.
Recommendation 18: That sections 51 and 55 of the National Crime Authority
Act 1984 be amended to clarify that the Parliamentary Joint Committee
on the National Crime Authority has access to all information held by
the Authority which is not of a sensitive nature.
Recommendation 19: That an Office of Inspector-General of the National
Crime Authority be created, subject to the direction and oversight of
the Parliamentary Joint Committee on the National Crime Authority, to
investigate any aspect of the Authority's operations as may be required.
ANNUAL REPORTING
5.104 The requirement to present an annual report to the Parliament is
an important component in the process of accountability by government
bodies and makes a significant contribution to the Parliament's supervision
of bodies for which they provide appropriation. The NCA is required to
prepare an annual report under section 61 of the NCA Act and the statute
prescribes a range of important performance information which the report
must contain.
5.105 In its report Examination of the Annual Report for 1995-96 of the
National Crime Authority, tabled in March 1997, the PJC drew attention
to the manner in which the current statute acts to lessen the value of
the NCA's annual report as an accountability document because of the lateness
with which it is tabled in the Parliament. The NCA report for 1995-96
was tabled in the House of Representatives on 11 December 1996 and in
the Senate on 13 December 1996. The PJC noted that this was some five
months after the end of the period under review and that some of the events
reported on had occurred some 17 months earlier. The Parliament is, of
course, close to adjourning for the summer recess by that time of year.
The PJC also noted that, had the NCA been subject to the reporting requirements
which apply to other Commonwealth agencies, its report would be required
to report by 31 October each year.
5.106 Mr Broome told the PJC that, while he agreed that annual reports
should be tabled as soon as possible, he noted that a 31 October tabling
deadline would significantly reduce the time available to the Authority
to produce its annual report after the conclusion of the reporting period.
This is because of the requirement in the Act for the NCA report to be
circulated to all States and Territories, as well as to the Commonwealth,
and to obtain comments from each jurisdiction, prior to its tabling. Mr
Broome noted that a statutory reporting date of 31 October would place
the NCA in a more difficult position than other Commonwealth agencies,
when in fact the intention might have been to bring it into line with
those agencies. [71]
5.107 The PJC understands that the intention behind this requirement
to first refer the report for comment to the States and Territories is
in recognition of the role of the Inter-Governmental Committee as the
'Board of Directors' for the Authority. However, on the basis of the responses
provided by most of the State and Territory Ministers who took the opportunity
to make comment in relation to the Authority's 1996-97 report, the PJC
observes that the delay has added little value to the accountability process.
5.108 It is the PJC's view that the Commonwealth Minister with responsibility
for the NCA should be subjected to the standard reporting requirement
(such as applies to the Australian Securities Commission, which is also
subject to overview by a ministerial council), to table its annual report
in the Parliament within 15 sitting days of its receipt. This should considerably
assist the timeliness of the accountability process with little if any
loss of integrity.
Recommendation 20: That the Minister be required to table the annual
report of the National Crime Authority within 15 sitting days of its receipt.
Footnotes
[1] Mr Justice Kirby, National Crimes Commission
Conference, Parliament House, Canberra, 28-29 July 1983.
[2] NCA Annual Report 1996-97, p. 50.
[3] Evidence, 22.5.97, p. 278
[4] The Parliament has a comprehensive committee
structure which ensures the monitoring and oversight of all Commonwealth
bodies to some degree.
[5] See, for example, Audit Report No. 23, 1996-97,
Recovery of the Proceeds of Crime, by the Australian National Audit
Office, tabled on 13 December 1996.
[6] Evidence, 22.10.96, p. 5. For example, section
32 of the NCA Act provides that applications may be made to the Federal
Court for an order to review particular NCA decisions.
[7] The NCA was referring to the judgements
of Justice Merkel in the Federal Court of Australia in June 1996 and Justice
Vincent in the Victorian Supreme Court in August 1996. Both decisions
were overturned on appeal.
[8] Evidence, 22.5.97, p. 278.
[9] Hansard, Senate Standing Committee
on Constitutional and Legal Affairs, 15 February 1984, p. 281.
[10] See Who is to Guard the Guards?
para. 6.26.
[11] Evidence, 3.3.97, p. 37.
[12] Evidence, 22.10.96, p. 16.
[13] Evidence, 22.5.97, p. 299.
[14] Evidence, 2.6.97, p. 396.
[15] Evidence, 2.6.97, p. 418.
[16] Evidence, 21.5.97, p. 100.
[17] ibid., para. 6.37.
[18] Evidence, 21.10.96, pp. 8-9.
[19] ibid., p. 12.
[20] Evidence, 22.5.97, p. 279.
[21] Evidence, 4.6.97, p. 487.
[22] See, for example, evidence of Mr Irwin,
Bar Association of Queensland, 21.5.97, p. 14.
[23] Evidence, 8.10.97, p. 1173.
[24] Evidence, 16.6.97, p. 924.
[25] Evidence, 21.5.97, p. 127.
[26] Evidence, 21.5.97, p. 112.
[27] Evidence, 10.6.97, p. 542.
[28] Evidence, 26.5.97, p. 323.
[29] Evidence, 8.10.97, p. 1180.
[30] Evidence, 16.6.97, p. 994.
[31] Evidence, 26.5.97, p. 348.
[32] ibid.
[33] Evidence, 21.10.96, p. 23.
[34] ibid., p. 24.
[35] Evidence, 4.6.97, p. 474. Emphasis in
original text.
[36] Evidence, 22.10.96, p. 25.
[37] NCA Act, section 18(1).
[38] Avery/Bingham report, p.24.
[39] Evidence, 16.6.97, p. 930.
[40] ibid.
[41] The National Crime Authority Bill 1983,
report by the Senate Standing Committee on Constitutional and Legal Affairs,
AGPS, Canberra, 1984.
[42] ibid., p. 135.
[43] Senate Hansard, 6.6.84, p. 2649.
[44] ibid., p. 2654.
[45] ibid., pp. 2653 and 2654.
[46] The Committee was established in the 33rd
Parliament on 18 October 1984. It ceased to exist a mere 8 days later
upon the dissolution of the House of Representatives on 26 October 1984
for the general election of 1 December 1984.
[47] First Report, Parliamentary Joint
Committee on the National Crime Authority, AGPS 1985, Canberra, p. 20.
[48] ibid., p. 6.
[49] ibid., p. 23.
[50] Initial Evaluation, pp. 4-5.
[51] On 8 November 1990 Senator Crichton-Browne
introduced the National Crime Authority (Powers of Parliamentary Joint
Committee) Amendment Bill 1990. On 21 December 1990 Senator Spindler introduced
the National Crime Authority (Duties and Powers of Parliamentary Joint
Committee) Amendment Bill 1990.
[52] There is a comprehensive analysis of the
competing merits of these opinions in Odgers' Australian Senate Practice,
8th edition, AGPS, Canberra, 1997, pp. 43-47.
[53] See Who is to Guard the Guards?,
p. 125.
[54] It should be noted that a similarly modelled
committee was established in June 1997 by the Western Australian Parliament
to oversight its Anti-Corruption Commission.
[55] The IGC's submission had indicated that
the abolition of the Committee was its preferred position. It added that,
if the PJC was to continue, its role should be directed towards developing
a broader overview of the criminal environment: 'The PJC could assist
the law enforcement efforts of both the Commonwealth and the States by
providing advice on necessary legislative change which would enhance the
general environment for investigation of corruption and organised crime.
In line with this approach, the PJC could also examine the methodology
used by the NCA in performing its several functions.'
[56] NCA Annual Report 1992-93, p. 65.
[57] In its 1992 36th report entitled Possible
Improper Interference with a Witness and Possible Misleading Evidence
before the National Crime Authority Committee the Senate's Committee
of Privileges also recommended that appropriate legislative steps should
be taken to clarify the concerns over the imprecision in the terminology
of sections 51 and 55 of the NCA Act.
[58] Evidence, 21.10.96, p. 10.
[59] Evidence, 11.6.97, p. 704.
[60] Evidence, 4.6.97, p. 485.
[61] Evidence, 21.5.97, p. 20.
[62] Evidence, 10.6.97, p. 537f.
[63] Evidence, 16.6.97, p. 930.
[64] Evidence, 22.5.97, p. 279.
[65] Evidence, 22.10.96, p. 18.
[66] Evidence, 12.6.97, p. 844.
[67] See evidence, 11.6.97, p. 689 for details.
[68] Mr Malcolm Gray of the South Australian
Bar Association stated: 'Yes, they are extraordinary powers and as they
are extraordinary powers, they ought to be capable of being exercised
in an accountable fashion' (Evidence, 10.6.97, p. 520).
[69] Evidence, 11.6.97, p. 629.
[70] In late 1997 an office of Parliamentary
Commissioner was created by the Queensland Parliament and made responsible
to the Parliamentary Criminal Justice Committee, which oversights the
Criminal Justice Commission, in order to perform a similar role. Similarly,
when the NSW Parliament created the Police Integrity Commission in 1996,
it made provision for an Inspector to audit the operations of the Commission
and report to a supervisory parliamentary joint committee.
[71] See discussion in the Committee's report,
Examination of the Annual Report for 1996-97 of the National Crime
Authority, tabled in March 1998.
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