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CHAPTER SIX
COMPLAINTS
[T]he overwhelming consensus of all those consulted was that the
NCA accountability process, as currently provided for in its Act, is
deficient in that it does not have any external scrutiny mechanism with
teeth. The external scrutiny that is provided by this Committee, by
the Inter-Governmental Committee and by the relevant Attorneys-General
and ministers for police is capable of providing external policy scrutiny
but it is not capable and was not set up for the process of dealing
with individual complaints and allegations of criminality, fraud and
corruption and dealing with failures in office of members of the authority
and its staff. [1]
Preamble
6.1 The National Crime Authority Act 1984 (NCA Act) contains no clear
mechanism for resolution of complaints that might be made by members of
the public about the activities of the members of the NCA and its staff.
These complaints might range from claims that the NCA is acting illegally
to an act of rudeness by an investigating officer or a receptionist. While
the courts may be the appropriate avenue for appeal against some of the
NCA's actions, it is desirable in the interests of good public administration
that a low-cost and accessible complaints system should be available.
Such complaints may necessitate disciplinary action against an individual
or highlight some systemic problem.
6.2 The original proposals contained in the Government's NCA Bill for
a complaints mechanism were replaced by the Senate with the establishment
of this Committee. However, the Senate failed to state with any clarity
that the examination of complaints was a duty of the PJC and the NCA Act
is silent on how potential complainants should proceed. The current NCA
annual report indicates that while some complaints are made to the PJC,
some are also directed to the Attorney-General, some to other agencies
including the Ombudsman and some are lodged directly with the NCA. [2]
As the Authority's chief executive, the Chairperson of the NCA is advised
of all complaints and he directs appropriate officers to undertake inquiries
on his behalf. The Chairperson accounts for his handling of complaints
through the NCA's annual reports.
6.3 While this issue has been the subject of regular examination and
frequent debate, the problem remains unresolved. The NCA itself has for
some time supported the appointment of an independent third party to deal
with complaints. [3] NCA Chairperson, Mr John
Broome, told the PJC:
Investigation of complaints requires specialist bodies with appropriate
powers and appropriate resources. It is no criticism of this Committee
to say that it is not legislatively established to do the job and does
not have the resources. It seems to me that it is a very unsatisfactory
process to expect parliamentarians, with enormous other demands on their
time, to become full-time complaints investigators. What you need is people
who are in fact established to do that very function. I do not think it
works particularly well. [4]
6.4 He later added:
... the absence of an external investigative body, to deal with complaints,
means that, irrespective of whether or not the complaints have any foundation
at all, there is always a suggestion that there may have been something
there, and that is a concern for us. [5]
6.5 Ms Betty King QC, a former NCA Member, noted:
I have to assure you that one of the major problems I had there was
dealing with complaints. It is unbelievably difficult if you have someone
who I would describe as, say, having a bee in their bonnet and they
are not going to go away. There were a couple of those during my time.
They occupy so much time and so much money. [6]
6.6 Mr Frank Costigan, QC, made the point that raising serial complaints
could be a tactic to delay legitimate investigations. He noted:
One thing I did learn during my Royal Commission, which was at a lower
level, is that one of the well-developed tactics which people who are
being investigated will use is to complain about the activities of the
investigator. Not that people should not be entitled to but there must
be a legitimate basis. I have seen examples where serial complaints
are made in relation to an investigation. The complaints have no substance
but effectively disrupt the investigations. [7]
6.7 The current PJC has attempted to overcome the statutory and other
constraints on its operations to seek to provide an independent arbiter
for complaints lodged with it as was originally intended by Parliament.
However, the PJC is convinced that there is a need for the establishment
of a more appropriate external complaints mechanism for the NCA.
Background
6.8 While the NCA Bill contained a range of accountability measures,
it included two mechanisms specifically directed at investigating the
legality and integrity of the NCA's operations. Firstly, under clause
44 the Authority was to be subject to scrutiny under the Ombudsman Act
1976, which would allow investigation by the Ombudsman's office of complaints
made about the administrative actions of the Authority. Secondly, there
was provision under clause 47 for a regular judicial audit of the effectiveness
and integrity of the Authority's performance.
6.9 The Senate Standing Committee on Constitutional and Legal Affairs,
which examined the provisions of the Bill in detail, recommended that
clauses 44 and 47 be deleted. It believed that the proposed judicial audit
would be largely ineffectual because of the complexity of the task and
that it would provide only an illusion of adequate examination of the
past operations of the Authority. Instead, the Senate Committee favoured
reliance being placed on the more traditional methods of parliamentary
supervision and speedy access to the courts. The Senate Committee also
took note of strong opposition to the concept of the Ombudsman investigating
the operations of the Authority, for similar reasons to its opposition
to the judicial audit proposal. It concluded that there would be no effective
or useful role for the Ombudsman in conducting investigations on behalf
of complainants against the Authority. [8]
6.10 As discussed in Chapter 5 under the section entitled Parliamentary
Supervision, the Senate sought to place responsibility for monitoring
the NCA's performance in the hands of this Committee. The only duty of
the PJC which encompasses the complaints handling role is contained in
section 55(1)(a) in the following terms:
6.11 By 1991 the PJC was reporting that it `lacks the time and the investigative
staff necessary to deal adequately with individual complaints'. [9]
It added that the most effective way of dealing with some individual complaints
would be for the investigator to visit the Authority and inspect all the
relevant files, which presents something of a difficulty for a committee.
[10]
6.12 Accordingly the PJC recommended that:
... the Inspector-General of Intelligence and Security be given jurisdiction
to investigate complaints against the Authority, its staff and those
seconded to work for it.
6.13 In support of this recommendation its report stated:
The PJC envisages that complaints could be taken directly to the Inspector
General. Provision would also be made for the PJC, the Attorney-General,
the IGC or Ministers who are members of the IGC to refer complaints
to the Inspector-General. Complaints brought to the PJC would only be
referred to the Inspector-General where the PJC considered that the
PJC itself could not readily resolve them.
The Inspector-General would have a right of access to all Authority
files, and to require persons to attend and answer questions on oath
and to produce documents. He would also have the power to refuse to
take investigative action on any complaint that he deemed to be frivolous,
vexatious or trivial. [11]
6.14 The PJC's recommendation was accepted by the Government and appropriate
provisions were included in the National Crime Authority Amendment Bill
(No. 2) 1992 to create the office of Inspector-General of the NCA. The
Government stated its intention that the occupant of the office of Inspector-General
of Intelligence and Security would be appointed as Inspector-General of
the NCA and, with this in mind, the proposed new Part IIIA was based as
closely as practicable on the relevant provisions of the Inspector-General
of Intelligence and Security Act 1986.
6.15 There were two major differences, however. The first major difference
between the role of the Inspector-General in relation to the NCA and in
relation to the intelligence and security agencies was that he was not
to have the broad monitoring function in relation to the NCA which he
has in relation to intelligence and security matters. This was to remain
the responsibility of the IGC and the PJC. The second major difference
was that the Inspector-General was not to investigate complaints in relation
to the NCA which could be dealt with satisfactorily under existing complaints
legislation or procedures applicable to a police service from which the
subject of the complaint had been seconded to the NCA. In other words,
the Inspector-General would only investigate complaints about the actions
of members or staff of the NCA, not the seconded police officers.
6.16 While these aspects of the Bill received the support of all parties,
with only minor amendments being proposed, on 16 December 1992 the proposed
legislation was laid aside in its entirety after the Government rejected
as totally unacceptable amendments made in the Senate on an unrelated
matter. [12]
6.17 The PJC again raised the issue in its October 1994 report Investigating
Complaints Made Against the National Crime Authority. It noted that there
had been no progress made on instituting a complaints mechanism, that
it considered that the continuing lack of a complaints mechanism was unacceptable
and repeated its call for legislation to be introduced as soon as practicable
to provide for the establishment of an office of Inspector-General of
the National Crime Authority.
6.18 In July 1995 the PJC's past comments about the need for an appropriate
complaints system for the NCA was referred by the then Attorney-General,
Mr Michael Lavarch, to the Australian Law Reform Commission (ALRC) for
consideration and report by 30 June 1996 as an additional consideration
to the inquiry into the complaints and disciplinary system for the Australian
Federal Police (AFP) which it was already undertaking.
6.19 In a public statement issued on 6 September 1995 the PJC noted its
dissatisfaction with the delay involved in the ALRC inquiry. It repeated
its earlier comments that it could not resolve the more involved complaints
of alleged wrong-doing on the part of persons at the NCA and drew attention
to the lack of a suitable mechanism for dealing with these complaints.
6.20 The ALRC's report, entitled Integrity: but not by trust alone was
tabled in December 1996. The report stressed that Australia's national
law enforcement agencies needed greater and more effective external oversight
to guarantee their integrity and accountability. The report recommended
the establishment of a National Integrity and Investigations Commission
(NIIC) to investigate or supervise the investigation of complaints, or
allegations of corruption, against both the AFP and the NCA. The NIIC
would have royal commission powers of inquiry. The AFP and the NCA were
seen as still having a role in investigating less serious complaints but
these would be referred through NIIC which would review and audit those
investigations.
6.21 The next related development was the completion in early 1997 of
the report by Mr Ian Harrison SC into allegations made about the Australian
Federal Police by a former officer. The report itself was not publicly
released by the Attorney-General, the Hon. Daryl Williams MP, having regard
to its operational nature and privacy considerations, but overview details
were provided by Mr Williams in a media release. The major point of interest
for this discussion was Mr Harrison's recommendation that the Commonwealth
Ombudsman should retain the role of providing external scrutiny of complaint
or allegations of police misconduct or corruption. In fact, Mr Harrison
called for the Ombudsman's powers to be enhanced to provide for a more
active role in complaint handling. Mr Williams indicated that these recommendations
would be taken into account in the context of the Government's consideration
of the ALRC report. [13]
6.22 Also in early 1997, the NCA adopted an ethics statement within the
Authority. Mr Broome indicated that, while some lapses in standards
will occur which need to be dealt with properly and quickly, it is preferable
to set positive goals rather than respond to difficulties when they occur.
The NCA's ethical statement provides `a means of addressing the cultural
difficulties which arise in an organisation with significant staff turnover
caused by the movement of seconded officers'. [14]
Mr Broome told the PJC that 'we are now using that ethics statement around
the Authority to reinforce what we see as very positive ideals within
the organisation'. [15]
6.23 The Ethics Statement states:
- act with honesty and integrity;
- perform my duties with skill, care, diligence and impartiality;
- accept responsibility for my own actions and those I initiate;
- respect the rights, responsibilities and aspirations of other people;
- behave courteously towards others;
- not misuse or abuse information acquired in the course of their duties;
and
- comply with the spirit and the letter of the law.
6.24 At the time of drafting of this report, the Government had made
no decision on the proposal to establish NIIC. The submission of the Attorney-General's
Department indicated that the Government's response was anticipated by
the end of 1997. It also indicated that there was a proposal for an extension
of the role of the proposed Commission from 'handling of complaints' to
'anti corruption' body. Its representatives told the PJC:
A complaints handling body is in a sense always an anti-corruption
body in that complaints are capable of revealing corruption or arise
out of corruption within the institution that the complaints handling
body looks after. I think here there is some suggestion that the NIIC
could become some sort of roving self-initiating anti-corruption body.
[16]
Discussion of the options
6.25 The issue for determination by the PJC is which of the options would
be the most desirable. The main options are the establishment of a new
special purpose complaints agency (such as NIIC) or the addition of the
NCA function to an existing complaints agency (such as the Ombudsman or
the Inspector-General on Intelligence and Security).
6.26 In calling for the establishment of NIIC the ALRC report argued
its perceived strengths over the alternatives. In relation to the Ombudsman
it wrote:
If the Ombudsman's Office was given the investigative role for the
NCA, it may experience difficulties in devoting sufficient resources
to complaints against the NCA... Moreover ... the Commission considers
that the Ombudsman's Office with its traditional role of reviewing defective
administration is not the most appropriate agency to be investigating
complaints against the NCA where some complaints may concern actions
taken by police officers or the improper use of coercive powers. [17]
6.27 Subsequently, of course, the Harrison report recommended the augmentation
of the Ombudsman's role in relation to the Australian Federal Police which,
arguably, may make it even less suitable to also monitor the NCA. The
PJC notes that Mr Harrison's view is in stark contrast to that expressed
to the PJC by ALRC President, Mr Alan Rose, whose conclusion was that
the Ombudsman had failed in the oversight role of the AFP. [18]
6.28 The ALRC report made similar comments about the Inspector-General
proposal:
In this context the Inspector-General's Office also has limitations.
It is a small agency with few resources for the conduct of intensive
investigations ... Moreover, its current role has been limited to complaints
against the intelligence organisations...[the NCA's] personnel ... are
police or others experience and trained in aspects of law enforcement,
not espionage or national security.
However, the ALRC had to concede that, because of its diverse range
of activities, 'the NCA is an organisation falling somewhere between
an intelligence agency and a police service'. [19]
6.29 Mr Broome was unimpressed by the NIIC proposal. His concern about
the ALRC's proposals was that they did not respond to its findings about
the nature of the problem and that the NCA's suggested solutions, which
had been developed in consultation with all the Commissioners of Police,
had been summarily dismissed. He told the PJC:
The ALRC report..., in large parts, seeks to superimpose the NIIC's
powers and responsibilities for those of the Authority by giving it
virtually open slather to tell us what to do, when to do it, how to
do it and who to do it to. It ignores, it seems to me, the responsibilities
of the Inter-Governmental Committee under the Act and it arguably ignores
the responsibilities of this Committee. It certainly would be a far
less accountable body than the Authority is, because it would actually
have the power to tell us how to conduct references without itself being
responsible for how those references were carried out. I find that just
unacceptable. [20]
6.30 The then Executive Member of the Commonwealth Law Enforcement Board,
Mr Daryl Smeaton, while non-committal about the outcome of the Government's
consideration of the ALRC's proposal for the establishment of NIIC, was
positive about the need for some progress:
A proper complaints process in relation to the National Crime Authority
finally - and I have to say that it has not been without trying - will
be put in place which will, I believe, provide opportunities for people
... to seek redress and a proper examination of their claims. [21]
6.31 The PJC took evidence from the then Inspector-General of Intelligence
and Security, Mr Ron McLeod, but not the Ombudsman. The Inspector-General
of Intelligence and Security Act 1986 gives the office jurisdiction over
the five Australian intelligence agencies. [22]
Mr McLeod told the PJC that:
My formal role is to ensure that the five security and intelligence
agencies are acting legally, acting with a full sense of propriety,
complying with government directives and guidelines and that, in their
day-to-day activities, they are fully respecting of human rights. I
basically do that in two ways. The first way is by dealing with public
complaints, which I receive from time to time from people who feel that
their interests or rights have been adversely affected in some way by
the agencies. I deal with those complaints and I may conduct formal
inquiries or deal with them to finality in a preliminary way.
I also have a responsibility to monitor the day-to-day activities of
the agencies...I was described by Justice Hope as an independent watchdog
who - in his words - 'would bring the agencies to book if they were
misbehaving and reassure the public if public fears that they were misbehaving
are misplaced.' I guess there are two arms in the role of the office:
to ensure that the agencies are doing the right thing and to be able
to give independent advice to the Government from time to time to that
effect, but also to provide that wider level of public reassurance that
the intelligence and security community is going about its business
in an appropriate fashion. [23]
These functions appeared to the PJC to be exactly what was required to
be undertaken in relation to the NCA.
6.32 Mr McLeod, in recognising that the ALRC's concept of the creation
of a new statutory authority seemed to have few supporters noted that,
as a result, he had changed from the position he had put to the ALRC.
He noted that 'we really have got to look at an existing body to see whether
there is a body that could most satisfactorily, with some adjustment to
its charter, pick up that role'. [24] He nominated
his office or the Ombudsman's as the two obvious choices, with his as
the more appropriate body. He added:
... my view is that a specialist body that can deal with a discrete
area like the law enforcement area or the intelligence area, over time
can develop an understanding, a level of expertise and a knowledge of
how that particular industry works to be a more effective watchdog than
a more generally based body like the Ombudsman, whose charter really
covers the whole breadth of government activity.
6.33 In an area like law enforcement and an area like security and intelligence,
where of necessity a high level of secrecy must surround the way in which
those bodies carry out their activities, there is a good case to be made
for saying that you really do need a specialist oversight body that understands
the different nature of work in these government agencies, rather than
in the rest of government where there is a generality and the concept
of open government prevails. [25]
Other views
6.34 Apart from the representatives of those agencies which have a direct
interest in the operations of whatever complaints system is finally established,
the PJC received only limited evidence from other witnesses about the
preferred system for examining NCA complaints.
6.35 Mr Ian Dearden, President of the Queensland Council of Civil Liberties,
was enthusiastic about the value of the proposed NIIC:
... the Law Reform Commission certainly expresses a view that shares
the concerns that we have that the Federal Court and court protection
is insufficient and that, when you have the sorts of compulsory powers
that are available and are used by the NCA as regularly as they are,
then you need something like a national integrity and investigations
commission as part of the oversight process in order to ensure that
the NCA does not go off the rails. [26]
6.36 Mr Peter Cleeland, who as a former Chairman of the PJC had considerable
personal experience of the issue, in stressing the PJC's inappropriateness
for the role, expressed support for a non-parliamentary complaints system.
His preferred model was similar to an Ombudsman with the necessary powers
to examine NCA files and bring quick justice to an aggrieved person. Mr
Cleeland dismissed the proposal for establishment of the NIIC as `too
much'. [27]
6.37 Representatives of the Queensland Bar Association and the South
Australian Law Society both expressed support for the establishment of
an independent body with sufficient resources and powers to be able to
properly hold the NCA accountable when complaints are made, without being
committed to any particular model. [28]
6.38 The PJC took evidence from only one witness, Mr Mehmed Skrijel,
who had had personal experience of seeking to complain about the operations
of the NCA, rather than using the processes of the courts. [29]
Mr John Elliott, who like Mr Skrijel had been the subject of an NCA operation,
told the PJC that he had not sought to complain about the NCA's activities
because he would have had to direct his complaint to the NCA. Mr Elliott
also did not complain to the PJC at any stage because he thought that
the NCA's secrecy provisions prohibited him from doing so, although he
added: 'I think it is impossible for a parliamentary committee to supervise
the NCA'. [30]
6.39 Mr Skrijel had been complaining about the activities of the NCA
almost since its inception, as one of its earliest inquiries was into
a matter Mr Skrijel had first raised with the Costigan Royal Commission,
which was passed by the Commission to the NCA upon its establishment.
He has raised his complaint with the NCA, with the PJC, with the Attorney-General
or Minister for Justice, and with others. Despite several investigations
into the matters he had raised, it has remained unresolved to his satisfaction.
His frustration at the lack of support he was receiving from the NCA and
the PJC led him to submit that:
[the] Committee is nothing but a cheap political arm of the most corrupt
police force in the world which is specifically created by totally corrupt
politicians for the protection of organised crime in this country. [31]
The PJC continues to consider aspects of Mr Skrijel's case, which demonstrates
the need for an authoritative, independent and accessible complaints agency
for the NCA.
Application to seconded officers
6.40 Mr Broome made it clear to the PJC that the major issue in the debate
about an external complaints system had been the position of the seconded
police officers. [32] As is clear from the
background discussion above, the PJC in its 1991 report recommended that
the proposed Inspector-General should have jurisdiction over all NCA staff,
including seconded officers, while the Government's 1992 Bill intended
that the Inspector-General be only a 'back-stop' for dealing with those
matters which could not adequately be addressed by any other of the existing
complaints mechanisms. [33]
6.41 Prior to the release of the ALRC report, the NCA informed the PJC
of its preferred approach:
There is no doubt that, by having staff seconded from other jurisdictions,
there are difficulties in handling [the complaints] issue. We have suggested
in the submission which we made to the Law Reform Commission that the
way to deal with seconded officers is to separate out the question of
a complaint about the Authority from one about the conduct of individual
staff members. That is to say, we could be asked to explain, and we
should explain, what we had done in a particular matter. If it were
found that that conduct was inappropriate, that would be something which
the Authority would, in a sense, then answer for, acknowledge and deal
with. If we were vindicated, so be it.
If it turned out that, in the course of that inquiry, suggestions were
raised that any staff member be they a seconded police officer or somebody
else had acted unlawfully or inappropriately, then what one does about
that is effectively a disciplinary matter to be dealt with in terms
of the internal processes, whether they be under the Public Service
Act for our own full-time staff or whether it be under the relevant
rules and procedures of the home police force of the seconded officer.
That is to say, you deal with the disciplinary consequences of inappropriate
conduct as a separate part of the exercise from the Authority's accountability
for what happens under its aegis. That seemed to us to be one way of
dealing with the problem. [34]
In essence the ALRC Report removes all authority for the investigation
of complaints, both internal and external, from the NCA Chairperson and
the Police Commissioners and vests it in the Chair of the NIIC.
6.42 Mr Broome then told the PJC that:
... how does one deal with the problem of seconded police and the fact
that they belong to and are part of their home forces? Their Commissioners
have, within their statutory responsibilities, obligations about the
discipline and handling of those staff, notwithstanding that they are
on secondment to us...That [the secondment issue] has been the difficulty
which has bedevilled this issue from the creation of the Authority ...
Yet, when the crunch came, they [the ALRC] have come up without a solution.
At least the solution we put forward sought to balance the Commissioners'
responsibility and mine and that of the Authority by separating out
their responsibility for disciplining individual officers and my responsibility
for the accountability of the organisation for what happens in its name.
[35]
6.43 The PJC received evidence from various elements in law enforcement
on the ALRC's proposals. The Australian Federal Police Association (AFPA)
told the PJC that while it had previously had a view that it was an unnecessary
complication to create a new agency, it was `warming to the notion of
an NIIC as the creation of a focused organisation'. [36]
This change of mind appeared to be derived from concerns about the operations
of the Ombudsman's office, which undertakes the AFP's complaints oversight.
6.44 The AFPA rejected suggestions that the Inspector-General of Intelligence
and Security assume the complaints function for the NCA. It placed particular
emphasis on the difference between the secrecy which attaches to the security
services while policing and law enforcement should be an open, transparent
and accountable process. [37]
6.45 Mr Mick Palmer, Commissioner of the Australian Federal Police, emphasised
his concern with process rather than structure. Of most importance to
him was the need for separation of the process of investigation of complaints
from the organisation whose personnel are complained about. [38]
He echoed Mr Broome's argument that there needed to be a distinguishing
between actions of seconded police which are of a disciplinary nature,
which should continue to be matters for the relevant Commissioners, and
claimed criminal behaviour, such as a breach of the NCA Act. Deputy Commissioner
Adrien Whiddett noted that there were arrangements in place between the
NCA and the AFP, and the AFP and the States when conducting joint operations,
which essentially led to the manner in which complaints were examined
being determined on a case-by-case basis.
6.46 The submission of the Queensland Police Service expressed `serious
concerns about the proposal to establish a National Integrity and Investigations
Commission as suggested in the ALRC report'. [39]
Its representative, Inspector Dominic McHugh, stated in relation to NIIC
that:
... if you create such an organisation, it is suddenly going to be
stepping into investigations which are currently under way. It would
need all sorts of memorandums of understanding and rules of engagement
in order to ensure that they did not prevent effective policing in some
areas and effective action by the NCA. It just becomes too much of a
complicated environment in which to work. [40]
6.47 The Victorian Government submitted that it:
... does not support the creation of another `standing royal commission'
in the form of the NIIC. It considers that the objectives of the NCA
complaints system proposed by the ALRC could be more effectively achieved
through the creation of an internal investigation unit within the NCA
and creation of a specific Division within the Commonwealth Ombudsman's
Office with the focussed and exclusive responsibility to review all
police investigations into complaints against the NCA. [41]
6.48 The Victorian Government confirmed the view put to the ALRC by the
Victoria Police that:
- there is a needless duplication of effort, waste of resources and
apparent confusion under the current system;
- members of the State law enforcement agencies seconded to the NCA
should be held accountable to the disciplinary code within the NCA during
the period of secondment;
- any disciplinary breaches dealt with by the NCA should be reported
to the members' home agency and form part of the members' record of
service; and
- any complaints, which, if proven, may result in the imposition of
a more serious sanction (ranging from a reduction in remuneration through
to dismissal) should be dealt with by the home agency. [42]
6.49 South Australian Commissioner of Police, Malcolm Hyde, observed
the current difficulties for the handling of complaints against seconded
officers and noted that it is a matter which needs to be addressed. [43]
6.50 Obviously, there are no easy answers to the question of the application
of an NCA complaints mechanism to seconded police. The current case-by-case
approach has the considerable advantage of flexibility. It fails, of course,
to provide certainty to the complainant, who can never be sure that their
complaint was given proper consideration especially as, from their perspective,
an officer who purports to act as an NCA officer is to all intents and
purposes an officer of the NCA.
6.51 Home services are understandably reluctant to relinquish full control
of their officers. Nor, in the PJC's opinion, should they have to, since
they ultimately have responsibility for their officers' conduct. Clearly,
as a matter of good management practice, home services should be advised
of all complaints made against their officers when on secondment to the
NCA, to enable them to observe and act to eradicate unacceptable patterns
of behaviour.
6.52 It seems clear to the PJC, nonetheless, that when a complaint of
some seriousness is received against any seconded officer who was purporting
to act in their capacity as an NCA officer, the Authority's complaints
mechanisms should apply in the first instance. The involvement in such
circumstances of the proposed external complaints body as an independent
adjudicator would, in the PJC's opinion, give integrity to the process
and thereby avoid allegations of inappropriate examination.
Summary
6.53 There is a universal consensus of opinion about the need for an
appropriate external complaints mechanism for the NCA. The 1984 experiment
with the PJC supposedly performing this task has patently not worked.
Parliamentary committees under our system of government do not have executive
roles. Instead, this Committee should be a monitoring and review role,
which is intended to hold the NCA accountable for its actions. In this
context it is important that it still receive and consider complaints
in relation to the NCA, about which it can seek advice from the NCA or
the external complaints agency as appropriate, and then if seen as necessary
even conduct inquisitorial hearings, but it cannot be expected to actually
undertake the investigations.
6.54 The NCA itself is rightly anxious that its activities should be
scrutinised by some external adjudicator. Not only should it not be judge
and jury in its own case but its scarce resources should not be tied up
in such activities.
6.55 The PJC remains unconvinced of the need for the NIIC in relation
to the NCA. [44] The principal concern is that
in a time of budgetary restraint on law enforcement NIIC is, in Mr Cleeland's
terms, 'too much'. The NCA currently receives a very small number of complaints
(less than 20 per annum in recent years) and it seems to the PJC that
the scale of the problem warrants a response of an appropriate scale.
[45] The Explanatory Memorandum to the proposed
establishment in 1992 of an Office of the Inspector-General of the NCA
was seen as requiring additional outlays of only about $100,000 per annum.
The PJC assumes that either the Ombudsman or the Inspector-General of
Intelligence and Security could still undertake the task for not dissimilar
funding. The NIIC, by comparison, was estimated by the ALRC to have an
annual running cost of up to $4 million, with about half of this amount
gained from offsets and efficiencies from the current system.
6.56 While the PJC notes the Ombudsman's role in relation to examining
complaints against the AFP, which gives some weight to its consideration
as the investigating agency for the NCA, the PJC again finds favour with
the Inspector-General option.
6.57 The PJC has examined in this report a model for an external scrutiny
body for the NCA which will deal not only with complaints but also have
a broad monitoring function, acting on the PJC's behalf. The Inspector-General
is the obvious choice in this respect. In the same way that the Office
of the Inspector-General has needed to develop a workable relationship
with the intelligence and security communities, the PJC is confident that
it can develop the necessary expertise in law enforcement matters to form
a similar relationship with the NCA.
Recommendation 21: That the Inspector-General of Intelligence and
Security be designated as the Inspector-General of the National Crime
Authority and be given responsibility for overseeing the operations of
the National Crime Authority in respect of complaints made against the
actions of all its officers, including seconded police.
Recommendation 22: That the proposed Inspector-General of the National
Crime Authority present details on the outcome of the examination of complaints
in relation to the National Crime Authority in an annual report to Parliament.
Footnotes
[1] Mr Alan Rose, President, Australian Law
Reform Commission, in evidence, 16.9.96, p. 3.
[2] National Crime Authority Annual Report
1996-97, p. 50.
[3] ibid., p. 21.
[4] Evidence, 22.10.96, p. 35.
[5] Evidence, 3.3.97, p. 6.
[6] Evidence, 21.10.96, p 13.
[7] Evidence, 04.6.97, p. 481.
[8] The National Crime Authority Bill 1983,
Report by the Senate Standing Committee on Constitutional and Legal
Affairs, pages 88 to 90.
[9] Who is to Guard the Guards?, pp.
131-2.
[10] In this respect, it is arguable that an
officer of the secretariat or a consultant could not be given delegated
authority because of the NCA's recognition only of the Committee.
[11] ibid., p. 135.
[12] See House of Representatives, Hansard,
16.12.92, pp. 3815-20.
[13] News Release, Attorney-General and Minister
for Justice, 28 May 1997, p. 5.
[14] Evidence, 3.3.97, p. 6.
[15] ibid.
[16] Evidence, 2.6.97, p. 412.
[17] ALRC Report, 1986, p. 122.
[18] The Committee conducted a public hearing
with representatives of the ALRC on 16 September 1996 at which it discussed
the ALRC's draft recommendations paper entitled Complaints against
the AFP and NCA.
[19] ibid.
[20] Evidence, 3.3.97, p. 8.
[21] Evidence, 26.5.97, p. 359.
[22] Australian Security Intelligence Organisation,
Australian Secret Intelligence Service, Defence Signals Directorate, Defence
Intelligence Organisation and Office of National Assessments.
[23] Evidence, 16.6.97, pp. 896-7.
[24] Evidence, 16.06.97, p. 898.
[25] Evidence, 16.6.97, p. 911.
[26] Evidence, 21.5.97, p. 69.
[27] Evidence, 11.6.97, p. 705.
[28] Evidence, 21.05.97, pages 5 and 17; and
10.06.97, p. 608.
[29] Others who gave evidence relied on court
action to pursue their complaints. At the time of writing, Mr Skrijel
was also involved in court proceedings against the NCA..
[30] Evidence, 12.6.97, p. 844.
[31] Evidence, 11.6.97, p. 715.
[32] Some one third of the NCA's staff are
police officers on secondment from their home services.
[33] See Explanatory Memorandum, National Crime
Authority Amendment Bill (No. 2) 1992.
[34] Evidence, 22.10.96 p. 33.
[35] Evidence, 3.3.97, pp. 7-8.
[36] Evidence, 16.6.97, p. 927.
[37] Evidence, 16.6.97, p. 927.
[38] Evidence, 2.6.97, p. 439.
[39] Evidence, 21.5.97, p. 125.
[40] Evidence, 21.05.97, p. 130.
[41] Evidence, 11.06.97, p. 637.
[42] Evidence, 11.6.97, p. 636.
[43] Evidence, 10.6.97, p. 537G.
[44] The Committee expresses no view about
the appropriateness for the NIIC in relation to the AFP: that falls outside
the Committee's jurisdiction and is a matter for Government decision.
[45] The Committee recognises that the current
scale of complaints may be based on the deficiencies in the current system,
but it would not anticipate a significant increase in numbers of complaints
once appropriate machinery is in place.
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