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CHAPTER SEVEN
COMPOSITION
It was clear to the Committee that the composition of the Authority
will be crucial to its likely efficacy and public acceptance. The integrity
of the Authority's members must be the primary safeguard against abuse
of power by the Authority and, unless the community is convinced of
such integrity, it may be expected that support for the Authority will
waver. [1]
BACKGROUND
7.1 The National Crime Authority is established by section 7 of the NCA
Act and it consists of a Chairperson and, in theory, at least two Members.
It is not a body corporate and a new 'Authority' is created each time
there is a change of Chairperson or Member. At the time of writing this
report the Authority had since February 1996 operated with only the Chairperson
and one single Member under the provision in section 8(10) of the NCA
Act which allows the Authority to perform its functions despite a vacancy
in its membership.
7.2 The Chairperson and Members are appointed by the Governor-General,
who acts on the advice of the Government of the day in such matters. Under
the Act, the selection of Chairperson is a matter solely for the decision
of the Commonwealth Government, although in practice its choice would
no doubt be canvassed informally with relevant State and Territory Ministers.
The Act also requires that the Chairperson is, or has been, a Judge or
a legal practitioner of at least five years standing. The NCA Act was
amended in 1989, by insertion of section 46A, to make it clear that the
Chairperson is responsible for the day-to-day management of the Authority.
7.3 NCA Members are appointed following the unanimous agreement of the
relevant Ministers. [2] There are no prescribed
qualifications for appointment as an NCA Member, although only lawyers
have ever been appointed.
7.4 Where the Inter-Governmental Committee (IGC) believes that, because
of the Authority's workload, more than a Chairperson and two Members is
needed to enable the NCA to perform its functions, a further type of Member
can be appointed under section 7 (8AA). The IGC nominates the person
who should be appointed. This provision has not been used since 1992 when
Mr Malcolm Gray QC, a section 7(8AA) Member based in Adelaide was appointed
a full Member under section 7(7) from 1 January 1993.
7.5 The Act provides that all members of the Authority will work for
the Authority on a full-time basis although, where the Chairperson is
expected to continue to be a Judge, there is a discretion that he may
not be engaged full-time.
7.6 The statutory office holders are supported by public service staff
and police seconded from the various police services (and one investigator
employed by the NCA in a consultancy capacity) who perform the NCA's investigative
tasks. [3]
ISSUES
7.7 A number of issues arose during the PJC's examination of the composition
of the Authority, including the qualifications for appointment to the
Authority, what roles the members should undertake and the terms and conditions
of employment. The PJC was also urged to give consideration to the NCA's
staffing arrangements and its system of secondment of police officers
rather than the employment of its own investigators.
Qualifications for appointment to the Authority
7.8 There was a considerable degree of agreement amongst the lawyers
who appeared as witnesses before the PJC about the importance for the
appointees to the Authority to be legally trained because of the particular
duties that they are required to perform under the Act.
7.9 Mr Norman Reaburn, Deputy Secretary of the Attorney-General's Department,
which has the task of providing advice and assistance to the relevant
portfolio minister in the recruitment and selection process, informed
the PJC that:
The members of the Authority have traditionally been drawn from the
legal profession, principally because it is the members of the Authority
who conduct the hearings and this requires a legal approach... you are
looking for an interesting bunch of skills: you are looking for the
legal ability to run a hearing and to run it in a way that will keep
the Federal Court out of everybody's hair - that sort of level of legal
skills; you are looking at someone with extensive knowledge of criminal
law; you are looking at somebody who is capable of being involved in
the leadership and management of a reasonably sized organisation. [4]
7.10 Ms Betty King QC appeared before the PJC in October 1996, prior
to the launching of the current inquiry, to discuss her views about the
operations of the Authority. Ms King was an NCA Member from July
1993 until her resignation in February 1996. Ms King gave the PJC the
clearest statement of the duties of a Member of the Authority, even though
she qualified her statement by saying that, because of the unique nature
of the role, to describe it was 'almost impossible':
It is a combination of criminal lawyer, Judge, police investigator,
Royal Commissioner and administrator. The position being undefined,
is also, to a large degree, what each individual Member desires to make
of it. [5]
7.11 When asked if NCA members should be lawyers, Ms King noted that:
I think, because of the Authority's powers, more than likely yes...because
of the use of the coercive powers, that it is something that is probably
not essential, but it would be a bonus to have someone who understands
about it. [6]
7.12 Ms King commented that the position of Chairperson or Member did
not appear to have been designed to be occupied by most public servants
'as their ability to gain the required experience and attributes mentioned
earlier would be extremely limited'. [7] She
suggested that a suitable model for a Member would be 'a senior junior
with at least twenty years experience in prosecuting, defending, joint
task force investigations and who has a real credibility with law enforcement
agencies'. [8]
7.13 The PJC also took evidence from former NCA Member, Mr Greg Cusack
QC, who expressed similarly ambivalent views about the necessity for members
to be lawyers. Mr Cusack did not discount the concept of the appointment
of highly qualified administrators as Members of the Authority, with legal
advice being provided to them by experienced counsel. [9]
He indicated that any administrator should not, however, have previously
been employed by either a relevant government or police administration
because of concerns about their independence.
7.14 Mr Frank Costigan QC made similar comments about the need for any
appointee to the position of NCA Chairperson to be beyond reproach and
he was most critical of the appointment of a Commonwealth public servant
to the position of NCA Chairperson, not on a personal level, but because:
The position of Chairman was made non renewable for the quite simple
reason that the holder of it should be seen to be in no way beholden
to Government for possible advancement or preferment or other appointment
by reason of the performance of his duties. Not only should the Chairman
be squeaky clean, he must be seen to be so. It was always assumed
that no appointment as Chairman would be made of a serving public servant
for the very reason that on the termination of his term of office he
would go back to the service. Likewise any offer or promise of any position,
such as that of a judge, would offend the same principle. [10]
7.15 Comment from the current Authority was taken in camera. In general
terms it was argued that it was important that the statutory appointees
should be responsible for the conduct of the NCA's coercive powers. The
powers are special and intrusive and accordingly it is appropriate that
they are exercised by the most senior office holders who may be held personally
accountable for their actions.
7.16 The Bar Associations were similarly supportive of this point of
view. Mr Marshall Irwin from the Queensland Bar Association, for example,
stated that:
It is the Association's view that because of the significant intrusive
powers that the Authority has, it is important that those intrusive
powers, including the conduct of hearings, decisions made to require
witnesses to attend and answer questions, decisions made to require
people to produce documents and the need to determine issues such as
privilege against self-incrimination and legal professional privilege,
are matters which really require a legal oversight. [11]
Mr Irwin saw a role at senior levels in the NCA for police officers but
was adamant that oversight of the use of the Authority's special powers
necessitate legal qualifications.
7.17 South Australian Commissioner of Police, Mr Malcolm Hyde, noted
the importance that the NCA members should be appointed as the most senior
legal arm of the Authority, allowing the appointed General Manager in
charge of operations to concentrate on the management and organisation
of staff and resources. Mr Hyde submitted:
It is important to stress that appointment of the Chairperson can in
no way be a political appointment as the Authority must be seen to be
beyond political intervention. [12]
7.18 Mr Peter Cleeland, a former PJC chairman, stressed:
As the Authority, in exercising its special powers, has what is, in
effect, royal commission powers, it seems essential to have a senior
and experienced, in the practice of criminal law, legal practitioner.
The exercise of those powers is analogous to judicial powers. [13]
7.19 Of the PJC's other witnesses, only Mr Bob Bottom put the view that
persons not possessing legal qualifications should be appointed to the
NCA, which was based on his negative perception of the record of achievement
of certain QCs and Judges while at the NCA. [14]
7.20 In the context of the PJC's 1991 inquiry there were a number of
submissions opposing the appointment of Judges to the Authority. In response,
then NCA Chairman Justice John Phillips told the PJC:
If I may say so, the people advancing the view that it was inappropriate
for a judge to hold my office did so without understanding just what
it is I do and, perhaps more importantly, just what it is I do not do.
I do not conduct hearings; I do not even issue any process under the
National Crime Authority Act; nor am I directly involved in investigations.
My role is one of policy formulation and administration, I believe I
have been able to, I hope, scrupulously avoid any involvement in judicial
conduct of the orthodox kind during my appointment. The fact is that
the National Crime Authority Act specifically makes provision for a
judge to be appointed. It is something that Parliament has considered
and made a judgement upon. [15]
7.21 The PJC notes that the existing structure of the NCA has been examined
and endorsed by the previous inquiries by the Senate Committee [16]
and this Committee. [17] The PJC in its 1991
report did, however, recommend a formal review of the appointment of Authority
Chairman at an appropriate time and that consideration be given to appointing
a senior police officer, either serving or retired, as a Member of the
Authority (a call repeated by some witnesses before the current PJC).
[18]
7.22 Mr Reaburn indicated that the issue of a police officer appointment
had been longstanding but:
The structure of the exercise is that the Authority members conduct
hearings and therefore one of the principal qualities that is looked
for in an Authority member is the ability to conduct the hearings. That
tends, I think, to shift the focus towards the legal profession rather
than toward senior police officers. [19]
7.23 This Committee has the advantage of observing another several years
of operations of the NCA since those earlier inquiries. It has also been
able to observe the operations of the NCA for the past five years under
the current and immediate past-chairing of Messrs. John Broome
and Tom Sherman, who were appointed ostensibly for their proven administrative
achievements in legally related fields (for example, Mr Sherman had been
Commonwealth Crown Solicitor and Chairman of Queensland's Electoral and
Administrative Review Commission, and Mr Broome had been a Deputy Government
Counsel in the Attorney-General's Department and Deputy Chairman of the
Trade Practices Commission). The PJC also notes the advice of Mr Smeaton
that:
If there has been criticism of previous chairs of the Authority, quite
extant, it has been concerning the lack of management experience that
may have been in their backgrounds. That was, I can assure you, a major
factor in this decision by the government to appoint Mr Broome... [20]
7.24 Commissioner Hyde's submission had noted that, irrespective of their
background, it was essential for the effective management of the Authority
that the Chairperson 'must have demonstrated management skills at an executive
level'. [21]
7.25 The PJC believes that, in view of the expanded powers which would
be entrusted to the NCA if the recommendations in this report are implemented,
it would be appropriate for future NCA chairpersons to be judges. This
conclusion should not be seen to be an adverse reflection on Mr Broome
who, in the PJC's view, has performed the role with distinction. The PJC
believes, however, that a person of judicial status would bring the required
level of authority to the Chairperson's position.
7.26 In relation to the issue of the qualifications of NCA Members, the
PJC has concluded that the existing provisions in the Act should continue.
By not being prescriptive, the Act provides the Government with the opportunity
to appoint a person with whatever skills are seen as desirable to successfully
perform the duties required. The PJC would anticipate that such appointments
would continue to be of experienced lawyers. It can see no reason, however,
for the NCA Act to specify that they should be lawyers and thereby rule
out other potential candidates who may be able to make a significant contribution
to the Authority's work.
Recommendation 23: That the Chairperson of the National Crime Authority
be a judge.
Recommendation 24: That the provisions of the National Crime
Authority Act 1984 in relation to the qualifications of Authority
Members be retained.
Terms and conditions for Authority members
7.27 The NCA Act provides that the Chairperson and each member may hold
office for a period not exceeding four years. They may be re-appointed
provided that the sum of the period of appointments does not exceed four
years. [22] This provision is colloquially
referred to as the 'J Edgar Hoover' clause, in that it is designed
to avoid the situation that arose in the United States where Hoover entrenched
himself as FBI Director and, because of the politically sensitive information
he acquired, proved politically impossible to remove. [23]
7.28 The Act also provides for the remuneration of NCA appointees to
be as determined by the Remuneration Tribunal or otherwise as prescribed.
The Tribunal is understood to treat a Member's position as the equivalent
of a Federal Court Judge, although additional allowances are paid. According
to details provided in the NCA's 1996-97 annual report, the fixed remuneration
of the Chairperson of the NCA was in the range of $290-300,000 and the
Member $230-240,000 (an increase of about $30,000 over the previous year).
7.29 The PJC has had a concern since the resignation of Ms Betty King
in February 1996 about the Government's obvious difficulties in attracting
a suitable replacement for her. [24] Ms King
also raised with the PJC her concerns about the high turnover of 'Authorities'
which is demonstrated in Table 3 (see page 207). This table was prepared
by then NCA Chairperson, Mr Tom Sherman, and tabled at a PJC hearing with
him on 11 August 1995. The 15th Authority, of which Mr Sherman,
Ms King and Mr Gray were members, continued for a record 22 months, before
being followed by Authorities of two and five months. The current Authority
of Mr Broome and Mr Melick has been in place since February 1996.
7.30 Recruitment is, primarily, an issue for the Federal minister with
portfolio responsibility for the NCA, currently the Minister for Justice.
Mr Reaburn noted the difficulties involved in finding suitable candidates,
especially when the Government is only in a position to offer a position
for four years at remuneration levels which, by some comparisons with
incomes of members of the criminal bar, are modest. An appointment can
also involve both career and family disruptions.
7.31 In summary Mr Reaburn noted that:
So what you have is a short-term job. In government terms the money
is reasonable but it may not be so to the people that you are trying
to attract. It is disruptive, or it has the potential to be disruptive.
It is difficult for it to lead anywhere... It leads to 'thank you very
much, your four years are up; we are very appreciative and, I hope
you enjoy going back to the bar'. [25]
7.32 Former NCA members Ms Betty King QC and Mr Greg Cusack QC either
turned or returned to the Bar after completing their terms as NCA Members.
Ms King echoed many of Mr Reaburn's sentiments, but noted the added difficulties
of 'excessive amounts of time away from home' and 'the perceived physical
danger'. [26]
7.33 Mr Cusack also referred to the problems of the fixed term and the
level of remuneration. He added that the NCA's current reputation (which
the PJC understood him to be saying was less than glowing, probably as
a result of the constant publicity to which the NCA had been subjected
during the immediately preceding period) would be an adverse factor in
the recruitment process.
7.34 Both Ms King and Mr Cusack stressed that they had taken a considerable
period of time when initially appointed, of between six to twelve months,
to gain a proper understanding of the NCA's operations. [27]
They also both favoured not only the option of renewable terms, where
an existing appointee had demonstrated meritorious performance, but also
the option of appointing as Chairperson for a term a Member who had completed
a successful term. [28] Such longer terms were
seen as offering a better career option for an eminent Queens Counsel
who may have chosen not to take a judicial position and would also contribute
to a situation of greater continuity and stability in the NCA.
7.35 When asked to comment on the practical effects for officers of the
NCA arising from the high turnover of members, NCA General Manager Operations,
Mr Peter Lamb, noted that it causes some uncertainty, especially as Members
'take some time to adjust'. [29]
7.36 Mr Marshall Irwin of the Queensland Bar Association, who had previously
worked for the NCA, saw the prospect of appointment to the NCA in terms
similar to Mr Reaburn:
... the people who are being approached to fill the vacancy are weighing
up - as quite often lawyers do when they are approached to be judicial
officers - whether it is in their interests to leave their practice
for a period of maybe three or up to four years to be a member and then
have to go back to their practice and try to re-establish it again after
that period of time. [30]
7.37 Mr Irwin saw turnover as having certain beneficial elements, including
the injection of fresh ideas and the avoidance of excessive entrenchment
in organisations. He saw merit in longer terms of up to five or six years,
a better structuring of appointments to ensure some continuity, and capacity
for a Member with appropriate qualifications to be appointed as Chairperson.
7.38 Mr Cusack also referred to the problems of enticing candidates from
the Bar, indicating that it is a difficult balance to provide a realistic
time frame for NCA members to be fully effective while even the current
four years may be seen as too long a period away from the Bar. Mr Cusack
also noted the relatively low salaries. Like Mr Irwin he supported the
elevation of a suitably qualified Member to Chairperson. [31]
7.39 Mr Peter Cleeland, a former PJC Chairman, noted the problem of high
turnover and the fact that the lack of continuity in the membership of
the Authority had retarded its performance of its functions. He added:
It has been said to me by senior criminal barristers that there is
no attraction to be appointed to the Authority for a three year term
[Mr Cleeland later noted that he should have referred to a four year
term]. Apart from a drop in income is the difficulty in re-establishing
practice. Of course now there is the public denigration as well. [32]
7.40 Mr John Marsden of the NSW Council of Civil Liberties, in reference
to the history of Hoover's term at the FBI and of the dangers of people
in investigatory agencies becoming overwhelmed with the righteousness
of their cause, strongly favoured turnover or contract employment in order
to place limits on the 'obsessive traits' which can lead to overzealous
behaviour in these circumstances. [33]
7.41 Mr Bob Bottom was similarly a critic of lengthy terms of appointment,
with five years his upper limit and 'certainly not permanent, ever.' He
added:
I believe that no member should become a chairman unless it is within
his term, in a sunset type of thing. He can gravitate up, but I would
not like to see a member serve four years as deputy and then become
the chairman. It is not on. [34]
7.42 Mr Frank Clair, CJC Chairperson, referred to the problems caused
to his organisation where a large number of commissioners had finished
their terms over a relatively short period of time. He noted in relation
to the NCA:
It is a shame not to capitalise on a body of expertise that has been
developed so that, either there ought to be scope for a longer period
than four years for members or, if that is not acceptable, there should
at least be an attempt to ensure that there is an overlap. It is [a
problem] probably exacerbated by the fact that there are only
three members [of the NCA]. [35]
Mr Clair supported appointments of four years with the option of reappointment
for another four years. This would permit a necessary review of the Member's
performance, but would allow 'you to capitalise on that development of
expertise and it would give some continuity'.
7.43 The PJC recognises that there are no easy answers to the quandary
of recruitment of persons of capacity and integrity to the most senior
positions with the Authority. The framers of the Authority saw the NCA
constituted by a judge and two senior criminal barristers, although later
the Parliament saw fit to designate the Chairperson's as a management
role.
7.44 At present, the most likely candidate for an NCA position would
be salaried solicitors, such as public defenders, criminal barristers
who might have plans to retire in four years, legally trained career public
servants who might see the position as a relatively well-paid promotion
or, a somewhat rare breed, a practicing junior barrister who is motivated
to contribute to the NCA as a 'public service' despite the pay and conditions.
7.45 There is also the need to find an appropriate balance between members
being appointed for too short a period to be able to make a fully effective
contribution and too long a period that they might become entrenched and
demotivated. [36]
7.46 The PJC believes that the key priority is for attention to be paid
to extending the term of appointment, to provide more certainty in the
person's career planning and more likelihood of continuity in NCA membership.
It may well be that the gross salary package on offer from the Commonwealth
Government, with the person freed from the uncertainty of continuous employment
and the need to maintain rooms, employ staff, lease a car, etc., may not
in reality be as unattractive as it may seem to be at face value.
7.47 Nonetheless, the PJC believes that it would be appropriate in the
context of the substantially increased authority and responsibility given
to Authority members by this report that the Government presents a submission
to the Remuneration Tribunal for its review of the appropriate salary
levels for the NCA Chairperson and its Members. In particular, the PJC
suggests that to attract an eminent Judge as NCA Chairperson, as discussed
earlier in this Chapter, a salary related to the Chief Justice of the
Federal Court should be contemplated.
Recommendation 25: That the term of membership of the National Crime
Authority be four years, with the option for renewal for a maximum of
another four years, subject to satisfactory performance.
Recommendation 26: That subject to demonstrating appropriate aptitudes
and qualities, a Member should be capable of appointment as Chairperson
of the National Crime Authority for four years, subject to the aggregate
term not exceeding eight years.
Recommendation 27: That the Government present a submission to the
Remuneration Tribunal for a review of the remuneration of the Chairperson
and Members of the National Crime Authority in recognition of the substantial
changes in their responsibilities arising from the implementation of the
recommendations contained in this report.
Part-time members
7.48 The PJC was impressed with the concept of part-time Commissioners
used for the Criminal Justice Commission. The CJC Chairperson has a maximum
term of five years, but the four part-time Commissioners can be appointed
for up to five years and can be reappointed. CJC Commissioner, Mr Frank
Clair, noted that there is a variety of views about the CJC model, but
that the part-time Commissioners 'do develop a certain body of expertise,
but it takes time'. [37]
7.49 Norman Reaburn noted that the concept of part-time members was an
option for the Government's consideration, although he added that they
would have to work in the NCA on a reasonably regular basis for the concept
to work in practice. [38] Mr Daryl Smeaton,
then Director of the Office of Law Enforcement Co-ordination, confirmed
that discussions with candidates had suggested that membership on a part-time
basis may have appeal perhaps to people who are semi-retired or might
be wanting to reduce their work load. [39]
7.50 The PJC believes that an amendment to the Act which would provide
the flexibility of appointing part-time members, perhaps to oversight
a particular reference or references, would be desirable, notwithstanding
its strong view that any appointment should be strictly conditional on
there being no real or apparent conflict of interest in the appointees'
other activities.
Recommendation 28: That the statute be amended to provide for the
appointment of a number of part-time members, who would each serve a term
not exceeding eight years.
Distribution of NCA Members
7.51 The PJC received evidence, discussed in paragraphs 1.166 to 1.182,
to the effect that funding cuts had impacted adversely on the NCA's capacity
to target organised crime. Most notably, the evidence of Assistant Commissioner
Mott of the Western Australia Police Service pointed to particular problems
in that State. The PJC is of the view that attention should be paid to
the adequacy of the distribution of NCA Members throughout Australia.
In particular, consideration should be given to the appointment of a full
or part-time member in Western Australia.
Recommendation 29: That attention should be paid to the geographical
distribution of NCA members with particular reference to Western Australia.
STAFFING OF THE NCA
7.52 As outlined above, the NCA's general support staff are employed
under the Public Service Act 1922. Its investigators are primarily officers
of the State and Territory police forces on secondment or, as a result
of a recommendation of the Report of the Review of Commonwealth Law Enforcement
Arrangements, increasingly from the Australian Federal Police. [40]
7.53 The PJC received a submission from the Australian Federal Police
Association (AFPA) that the staff of the NCA should be members of the
AFP. It was also urged to recommend the appointment by the NCA of its
own investigators, rather than relying on seconded officers from Federal,
State and Territory police services.
7.54 Some of the AFPA's recommendations seemed to the PJC to fall outside
of its terms of reference, if not beyond its sphere of influence. For
example, the AFPA expressed its view favouring the formation of a 'national
multijurisdictional police service in Australia'. [41]
However, given that such an outcome was 'a pipe dream', the Association
noted that increasing the mobility of police through all jurisdictions,
encouraging common employment standards and enacting common legislative
prohibitions and authorities throughout Australia would contribute to
achieving the same end by progressively breaking down current jurisdictional
limitations.
7.55 As a committee of the Federal Parliament, this Committee believes
that such issues are indeed worthy of detailed consideration by the State
and Territory Police Ministers. The PJC is pleased to note the advice
of Mr Terry Collins, Secretary of the Police Federation of Australia
and New Zealand (PFANZ), that such examination is taking place and that
there has been progress in relation to a national strategy for the development
of a police profession, including national police common core competencies
and nationally recognised standards for police qualifications. [42]
7.56 In relation to the NCA, the AFPA submitted that:
The non-police staff of the NCA could be attached to the Australian
Federal Police, where they can influence a far larger and more widely
tasked organisation with the positive elements of its structure and
talents. There are also economies of scale in this approach. [43]
7.57 Nonetheless, the PJC believes that it would be appropriate in the
context of the substantially increased authority and responsibility given
to Authority members by this report that the Government presents a submission
to the Remuneration Tribunal for its review of the appropriate salary
levels for the NCA Chairperson and its Members. In particular, the PJC
suggests that to attract an eminent Judge as NCA Chairperson, as discussed
earlier in this Chapter, a salary related to the Chief Justice of the
Federal Court should be contemplated. While acknowledging the fine work
of the NCA staff, I believe it is important to remember that for every
additional law enforcement agency, substantial public funds are utilised
to provide administrative and logistical resources. Rather than compete
between agencies for different references, or try to establish multiple
working relationships, would the public of Australia not be better served
by a simple model of state police and federal police. [44]
7.58 Mr Collins' submission also stated:
I am loathe to believe that the NCA possesses specialists who have
skills that are not already available in the state and federal police,
or which cannot be developed in the state and federal police. [45]
7.59 The PJC notes the proliferation of law enforcement agencies in Australia,
with the attendant scope for 'turfdom' and the overhead costs of such
a disjointed structure. It acknowledges that, in the course of the Commonwealth
Government's 1994 review of Commonwealth law enforcement arrangements,
there was discussion of the closer integration of the NCA and the AFP
as part of a 'national policing strategy'. The PJC hopes that, arising
out of the initiatives outlined in its report, a better NCA will evolve.
It is of the view, however, that the integration of NCA staff with the
AFP would lessen the NCA's effectiveness in the short-term.
Investigative personnel
7.60 In relation to the employment of its investigative staff, the NCA's
1995-96 annual report stated:
The secondment of police to the NCA enhances its investigative ability
and cements its relationships with Federal, State and Territory police
services. The NCA has seconded police investigators in each of its regional
offices. As at 30 June 1996, the NCA had 114 investigators. One hundred
and thirteen of these were seconded officers, 58 from the AFP and 55
from State and Territory police forces. One investigator was employed
on contract. [46]
Its 1996-97 report revealed a decline in the number of seconded police
officers as at 30 June 1997 to 105, but did not disclose the details of
their home services.
7.61 Two issues have arisen in this respect: increased employment of
NCA-employed investigators and the extent of reliance on seconded officers
from the Australian Federal Police.
7.62 Former Members of the NCA, Mr Greg Cusack and Mr Malcolm Gray, led
the calls for the NCA to have its own investigators, rather than reliance
being placed on seconded police. Mr Cusack recognised that the NCA's
system of secondment of police investigators had been framed in a manner
which would obviate the risks of corruption which might come from entrenchment
and excessive familiarity. He argued that, while it was envisaged that
the NCA would continue to draw police officers from the Federal, State
and Territory forces, he favoured a small core of 'independent investigators'
who were employed by the NCA and whose allegiance was first and foremost
to the Authority. Mr Cusack said:
In the end, those police officers drawn from various forces throughout
Australia owed their allegiance not to the NCA but back to their own
police forces. If something comes up which is against the interest of
their police force, that is where their loyalty will lie. [47]
7.63 Although Mr Cusack's comments referred to his period as an NCA Member
in the early 1990's, he indicated that at that time the NCA had seen the
need for it to employ 40 investigators, spread around its national and
regional offices. [48]
7.64 Mr Gray appeared before the PJC as a representative of the South
Australian Bar Association. The thrust of the Association's argument was
that the NCA needs to employ its own investigators to mitigate or overcome
the apparent diminution of the NCA's independence reflected in the use
of the NCA's special powers for the enforcement ends of the State and
Federal police services. Mr Gray referred to comments which had been attributed
to the then South Australian police commissioner that:
...seem to indicate still a lack of an understanding of the National
Crime Authority as being a national resource directed towards organised
criminal activity, rather than a supplement to the South Australian
police force performing in an area that the South Australian police
force might or might not choose to engage in. [49]
7.65 In response to arguments that the NCA is somehow captive of the
Police Commissioners, NCA Chairperson John Broome told the PJC that he
and other Authority members exercise their powers independently, for which
they are accountable in the courts. He stressed 'I do not get told...by
anybody on our staff or outside our staff how we will exercise our statutory
powers' [50]
7.66 Mr John Marsden echoed Mr Cusack's arguments about seconded police
maintaining loyalty to their home services. He referred approvingly to
the manner in which the Royal Commission into the NSW Police Service under
Mr Justice James Wood had brought together police from a range of sources
to form task forces. As they did not previously know each other, traditional
problems of 'mateship' were broken down. By comparison, Mr Marsden
noted that police on secondment to the NCA were there 'too long' and that
groups of police from the same services were used in some investigations.
In general terms, and given his experiences as a member of the NSW Police
Board, Mr Marsden saw use of contract policing as desirable. He also saw
secondment of smaller groups of police from more distant services as desirable.
He noted the increasing use of 'lateral investigators' employed from the
private sector to augment policing services. [51]
7.67 The Criminal Justice Commission was the only law enforcement agency
comparable in structure to the NCA which gave evidence to the PJC. Its
representatives detailed the operations of the Joint Organised Crime Task
Force through which the Commission pursued its investigations into organised
crime in Queensland. In a similar manner of operation to the NCA the CJC's
Task Force has a multidisciplinary membership but, importantly, about
half of its investigators are 'civilians' and half seconded from the Queensland
Police Service. The CJC stated that the civilian investigators which are
employed by the CJC were all ex-police officers, recruited from both within
and outside Queensland. [52]
7.68 The PJC discussed with the representatives of the Australian Bureau
of Criminal Intelligence (ABCI) the question of the extent to which organisations
should be built around seconded officers and the extent to which there
should be some core of permanence within them. ABCI Director, Mr Greg
O'Neill, stated 'It is my belief that there needs to be a mixture of both'.
[53] He noted that there had been a trend away
from using police secondments in the common police services and that they
were now either completely or partially 'civilianised'. While noting the
continuing importance of police input into the ABCI's activities, he noted
that the use of civilian intelligence officers had lifted its performance
considerably.
7.69 The PJC notes Mr O'Neill's comment that while intelligence had been
a longstanding practice in the military, the police services had only
come to terms with the role and function of criminal intelligence in the
recent past. In these circumstances, it is unsurprising that civilians
have been more successful that police officers, although the principle
may not readily apply to investigatory rather than intelligence activities.
Mr O'Neill also drew attention to a risk that seconded officers, rather
than return to their home service at the conclusion of their terms, may
choose to resign.
7.70 The comments of the police services, on which the NCA is dependent
for the provision of seconded officers, gave the PJC cause for concern
about some of the recent developments. The Queensland Police Service (QPS)
was the most critical of the AFP/NCA alliance. Its submission stated:
Unfortunately, the AFP/NCA strategic alliance, as it currently stands,
has the potential to compromise the contribution of States and Territories
and undermine the spirit of co-operation (Evidence, 21.5.97, p. 122).
7.71 Its submission noted that there had been a perception as a result
of the CLER report that the AFP was taking over the NCA. The Avery/Bingham
post-CLER inquiry noted that, in fact, the Government had taken the decision
that NCA investigators working on Commonwealth matters would be members
of the AFP, with members of State police services working with the NCA
on State matters. [54] QPS noted that an analysis
of almost 400 charges laid by the NCA in 1995-96 had shown that only 12
were offences against the Commonwealth.
7.72 Representing the QPS, Inspector Dominic McHugh summarised its concerns
as:
...if you take the history of policing in Australia, the Queensland
Police Service sees the NCA as a structure for cooperative arrangements.
It is not owned by one police service in Australia. If you are going
to give it to anyone, why not give it to the Queensland police? We can
do just as good a job of it as the Australian Federal Police...in the
general course of events, a state police officer brings to his local
office of the NCA a local knowledge in intelligence and contacts and
an understanding of the structures of his state and the environment
in which he is going to work. It would be better than you would get
from the Australian Federal Police officers. [55]
7.73 Interestingly in terms of Mr Marsden's concerns, Inspector McHugh
informed the PJC that all of the QPS officers on secondment to the NCA
are based in the Brisbane office from where they work with the NCA on
a national level, rather than work on Queensland matters.
7.74 South Australian Commissioner of Police, Mr Malcolm Hyde, also noted
the emphasis of State legislation in the NCA's work and that officers
of the AFP often have limited exposure to State-based law, procedures
and policies. The NCA had also had little involvement in the investigation
of breaches of Commonwealth legislation in South Australia. [56]
7.75 The PJC was pleased to learn from the representatives of other State
police services that employment at the NCA was seen as beneficial in terms
of their career development and that secondments were now sought after.
[57] They also saw a useful role for the NCA
in employing some permanent officers, in terms of continuity and networking
across jurisdictions, but emphasised the value of continuing with the
current secondment arrangements. [58]
7.76 The PJC took extensive evidence from the Commissioner of the Australian
Federal Police, Mr Michael Palmer, about the staffing of the NCA and the
practical implications of the strategic alliance. In its submission, the
AFP described its strategic relationship with the NCA as 'critically important'
to its objective of maintaining and strengthening alliances with law enforcement
and other relevant agencies. Since CLER, the number of Federal Agents
attached to the NCA had increased from 16 to as high as 55. Commissioner Palmer
told the PJC:
I see that alliance between us and the NCA as the two organisations
that bring a federal or a national jurisdictional flavour to otherwise
state focused investigations as being critical ...The arrangement which
was reached between me and Tom Sherman, who was then [NCA] chairman,
was that, because the National Crime Authority has a national jurisdiction,
as does the Federal Police, so many of the investigations cut across
state boundaries and borders, across the country the largest proportion
of investigators quite properly should be AFP people, but within any
one jurisdiction the majority of members in that jurisdiction ought
to be state police. [59]
7.77 AFP Deputy Commissioner Adrien Whiddett informed the PJC that AFP
officers attached to the NCA are subject to a rotation process but some
element of permanency is provided by their rotations being for a period
of two to three years. He noted that:
... the balance between having reasonable continuity and not leaving
people in these joint exercises too long is the main key to it. [60]
7.78 Mr Whiddett also confirmed that the AFP supports its officers joining
the NCA for the work experience they gain and that its officers are keen
to get an NCA secondment. Mr Whiddett noted the concerns of the State
police services about the Commonwealth's intentions in relation to the
alliance in its early days, but he had understood that the concerns had
dissipated.
7.79 The AFP representatives expressed a range of views about the merits
of the NCA employing its own investigators. Commissioner Palmer favoured
the current arrangements for a range of reasons, including the problems
of creating a permanent elitist group which might be susceptible to a
potential for corruption and malpractice. Mr Robert McDonald, General
Manager of the AFP's Eastern Region (who had worked at the NCA) saw benefit
in the NCA having a more mixed group of investigators, mainly to get continuity
on long-term organised crime investigations. He saw a good argument for
the NCA having a small core of investigators with the task forces being
established from secondees from other agencies. Mr McDonald also
made note of the problem of split loyalties for officers on secondment
to the Authority. [61]
7.80 Mr John Broome, spoke at length in relation to the issue of secondments
of police officers and the concept of the employment of independent investigators.
In essence, he argued that, while it is not a perfect system, the current
secondment arrangements represent the right balance for the NCA's purposes.
He indicated that any investigators the NCA might employ would come from
the existing police services. Under the current system the NCA gains the
use for a period of dedicated, effective and professional officers from
the existing police services, who then return to their home services for
the remainder of their careers. He questioned whether the best and brightest
investigators would choose to work long-term for a small agency which
can offer only a limited career path. [62]
7.81 Mr Broome also noted the problems that arise from the NCA having
to pay its seconded police the conditions of their home services, with
no mechanism for supplementation of the NCA's budget when a State or Territory
awards a pay rise to its officers. His review of the year in the NCA's
1996-97 annual report noted that:
All seconded investigators retain their home service rights. This gives
rise to the problem that people can be working side by side with significantly
different terms and conditions. This is a problem which may be exacerbated
as greater flexibility is introduced into normal public sector employment
conditions. [63]
7.82 As Commissioner Hyde noted in his submission, there are inequities
in this situation, with differential rates of pay for seconded officers
from the different services leading to low morale and unhealthy competitiveness
amongst investigators. He also noted that seconded AFP officers were better
paid and are in receipt of conditions when at the NCA from which State
seconded personnel were excluded. [64] In calling
for the introduction of equality in employment conditions, Mr Hyde mooted
the option of the NCA's setting a common pay standard for seconded officers
with the NCA effectively supplementing any increases.
Role of lawyers in NCA operations
7.83 Commissioner Hyde also noted without further comment the concerns
expressed in 1991 by his predecessor Mr David Hunt that the NCA was operationally
managed to excess by solicitors. In its subsequent report, the then PJC
noted that the issue had been raised as a point of contention in the 1988
Initial Evaluation report and that it considered that processes implemented
by then Chairman Justice John Phillips had addressed past concerns that
the Authority had failed to utilise the investigatory skills of police.
While emphasising the multi-disciplinary nature of the Authority's multi-agency
task forces, Justice Phillips had stressed that leadership of each task
force was dependent on the individual circumstances of that task force,
with a police officer, an NCA staff member or even another agency's officer
(such as the Australian Securities Commission) as possible leader. [65]
7.84 The current NCA largely echoed these sentiments in private correspondence
to the PJC in advising that, for any investigation it conducts, it forms
a multidisciplinary team. The team will be made up of lawyers, financial
analysts, police, intelligence analysts and support staff. The exact numbers
of each group will depend on the type of investigation and an assessment
of the skills which will be required to undertake that particular investigation.
7.85 The submission of the Victorian Director of Public Prosecutions,
Mr Geoffrey Flatman QC, was noted in Chapter 1. His submission,
while couched in suitably restrained language, was revealing of some considerable
problems in the activities of NCA lawyers, assumedly in the NCA's Melbourne
office. He referred to some tension and even conflict between his office
and the NCA in relation to a number of briefs. His comments referred,
firstly, to problems in the quality of NCA briefs. He then observed that
NCA solicitors might be better focussed on providing advice to investigators
to make the investigation more effective and the preparation of the brief
more comprehensive. He noted:
There is always scope for improvement in such matters just as there
is always scope for identifying these difficulties with the advantage
of hindsight. Certainly the NCA could benefit by the injection of additional
expertise and resources in terms of its investigative staff and in-house
lawyers ... Improvement will come with increased training and development
of investigation staff and more experience, on the part of the lawyers,
as to the practical task of prosecuting before the Courts. [66]
Mr Flatman went on to stress the importance that the NCA accept that
such problems exist. He added that they should then address the problems.
7.86 Despite the fact that the evidence before the Committee was overwhelmingly
positive about the quality of the briefs supplied by the NCA to the several
Directors of Public Prosecutions, Mr Flatman's frank remarks lead the
PJC to urge the NCA to carefully examine the role played by its lawyers
in investigative teams where there has been conflict with officers of
a DPP.
SUMMARY
7.87 The quality and integrity of its investigative staff is fundamental
to the success of the NCA. The PJC notes with satisfaction that the NCA's
reputation as an investigatory agency is such that officers wish to take
secondments and their home services see benefit in such secondments in
terms of the development of their officers. The PJC also notes that in
its 1991 report the then PJC members had accepted the proposition that,
where there is no evidence of a problem, a change such as the employment
of independent staff by the NCA should not be supported. [67]
7.88 Unlike its predecessor, the PJC does see mounting evidence of a
problem developing in the staffing of the NCA. It recognises that much
of the basis for the problem is the serious cuts made to of the NCA's
budget, [68] which has led to a substantial
drop in staff numbers and in the need to employ new staff for specific
periods rather than in a permanent capacity. This factor alone may account
for some of the problems alluded to by Mr Flatman.
7.89 In the PJC's view there is a very real risk that there will develop
in the NCA a problem arising from the lack of continuity and corporate
memory in the organisation as a direct result of the high turnover of
NCA personnel, especially when 'complex investigations which involve many
staff may require those same people to spend months or even years engaged
in the post-arrest stage of the investigation'. [69]
This concern is heightened by the high turnover of Authority members,
which places in the ever-diminishing number of 'permanent' officers the
long-term corporate memory of the Authority. Employment of a small core
of staff investigators on long-term and renewable contracts, at competitive
levels of pay and conditions (but not superior to those of the seconded
officers), may resolve this problem.
7.90 The PJC is sympathetic to the suggestion of Commissioner Hyde, referred
to in para. 7.82, in that it would make secondment to the NCA a much more
attractive proposition for officers from the lower paid State and Territory
police services, increase the quality of applicants and competition for
secondment, and encourage loyalty to the NCA by successful applicants.
The PJC assumes that, in the current budgetary environment, such a suggestion
would be rejected by the Commonwealth Government, and in this report simply
raises it as a matter for future consideration.
7.91 In relation to concerns about the operations of the NCA/AFP alliance,
Messrs Avery and Bingham commented that concerns about the possibility
of the AFP taking over the NCA would be dispelled by the establishment
of SCOCCI because of its control of priorities and its wide representation
from all the principal relevant agencies. The PJC is nonetheless concerned
that the alliance may adversely affect the potential level of cooperation
with the NCA by the States and Territories on which the NCA is dependent
for its success. The PJC believes that this issue would be an appropriate
and urgent item for discussion at SCOCCI.
Recommendation 30: That the National Crime Authority should employ
a small core of staff investigators to complement the existing system
of seconded police officers, the emphasis and priorities of this core
being a matter for discussion with SCOCCI having regard to the Authority's
needs for investigative personnel and the availability of seconded officers.
Footnotes
[1] Report by the Senate Standing Committee
on Constitutional and Legal Affairs, The National Crime Authority Bill
1983, Canberra, 1984, p. 83.
[2] For this purpose, there are two classes
of Members: those appointed under section 7(7) of the NCA Act and those
under section 7(8). For the former, Attorneys-General are the relevant
Ministers. For the latter, Police Ministers are the relevant Ministers.
[3] As at 30 June 1997 there were 237 staff
employed under the Public Service Act 1922, 105 seconded police
officers and one investigator employed by the NCA.
[4] Evidence, 2.6.97, p. 398.
[5] Evidence, 21.10.96, p. 4.
[6] ibid., p. 17.
[7] ibid., 21.10.96, p. 5.
[8] ibid.
[9] Evidence, 22.5.97, p. 152.
[10] Evidence, 4.6.97, p. 476. Emphasis in
original.
[11] Evidence, 21.5.97, p. 6.
[12] Evidence, 10.6.97, p. 537f.
[13] Evidence, 11.6.97, p. 687.
[14] Evidence, 21.5.97, p. 50.
[15] Who is to Guard the Guards?, p.
225.
[16] Report on the National Crime Authority
Bill 1983, Senate Standing Committee on Constitutional and Legal Affairs,
pp. 83-4.
[17] Who is to Guard the Guards?, p.
225.
[18] The Victorian Government, for example,
stated that '[t]here is an absence of current operational law enforcement
experience at a senior management level in the NCA's current structure.
As a result, senior management in the NCA lacks adequate levels of direct
experience in the investigative process to, in the Victorian Government's
view, the detriment of the fight against organised crime. This problem
could be overcome by the appointment of a serving police officer as a
Member of the Authority to provide direct knowledge and advice on issues
relevant to law enforcement (Evidence, 11.6.97, p. 635) See also the submission
of the Queensland Police Service, evidence, 21.5.97, p. 126.
[19] Evidence, 2.6.97, p. 401.
[20] Evidence, 2.6.97, p. 401.
[21] Evidence, 10.6.97, p. 537f.
[22] The first NCA Chairman, Mr Justice D.G.
Stewart, had his 4 year term extended in 1988 by one year by special legislation
applying only to him.
[23] It should be noted that the National Crime
Authority Bill 1983 provided for two year terms with the option of reappointment
for two more years. The Senate Committee, whose recommendations were reflected
in the Act, noted "the possibility of renewability being used as
an inducement to perform in a way which is politically acceptable to the
government of the day (Senate Committee report, para. 7.8).
[24] Current NCA Chairperson, John Broome,
informed the Committee that the Authority had been prepared to work for
some period with a reduced membership, essentially in recognition of the
budgetary situation and also taking account of the uncertain nature of
its use of special powers based on certain judicial determinations. One
consequence of the continuing vacancy had been that Authority meetings
had operated with a minimum prescribed quorum, which had 'created some
difficulties' (Evidence, 22.10.96, p. 28).
[25] Evidence, 2.6.97, p. 398.
[26] Evidence, 21.10.96, p. 5.
[27] ibid., p. 16 and 22.5.97, p. 153.
[28] Evidence, 21.10.96, pp. 16-17; and 22.5.97,
p. 153.
[29] Evidence, 22.10.96, p. 29.
[30] Evidence, 21.5.97, p. 7.
[31] Evidence, 22.5.97, p. 153.
[32] Evidence, 11.6.97, p. 687.
[33] Evidence, 2.5.97, p. 228.
[34] Evidence, 21.5.97, p. 50.
[35] Evidence, 21.5.97, p. 113.
[36] A matter about which Mr Bob Bottom also
spoke with some vigour. See evidence, 21.5.97, pp. 50-1. The Committee
also recognises that the level of pay (and for that matter, the NCA's
reputation as a potential employer) are essentially beyond resolution
in the short-term.
[37] Evidence, 21.5.97, p. 112.
[38] Evidence, 2.6.97, p. 399.
[39] Evidence, 2.6.97, p. 400.
[40] The report stated that there should be
the formation of a strategic alliance between the NCA and the AFP, with
a high proportion of NCA investigators being AFP officers.(CLER, para.
18.27, p. 282) The Australian Federal Police submission described the
alliance as "the joint pursuit of agreed strategic objectives in
counteracting organised crime, involving the rationalisation and integration
of operational activity (Evidence, 2.6.97, p. 420).
[41] Evidence, 16.6.97, p. 925.
[42] Evidence, 16.6.97, p. 931.
[43] Evidence, 16.6.97, p. 919.
[44] Evidence, 16.6.97, p. 931.
[45] Evidence, 16.6.97, p. 921.
[46] NCA Annual Report 1995-96, p. 49.
[47] Evidence, 22.5.97, p. 152.
[48] Evidence, 22.5.97, p. 153.
[49] Evidence, 10.6.97, p. 528.
[50] Evidence, 22.5.97, p. 298.
[51] Evidence, 22.5.97, pp. 230-1.
[52] Evidence, 21.5.97, p. 108.
[53] Evidence, 26.5.97, p. 323.
[54] Avery/Bingham, p. 22.
[55] Evidence, 21.5.97, pp. 134-5.
[56] Evidence, 10.6.97, p. 537b.
[57] See evidence of SAPOL and WAPOL, 10.6.97,
p. 554.
[58] Evidence, 10.6.97, pp. 554-5.
[59] Evidence, 2.6.97, p. 429 and p. 438.
[60] ibid.
[61] Evidence, 2.6.97, p. 432.
[62] Evidence, 22.5.97, p. 311.
[63] NCA Annual Report 1996-97, p. 6.
[64] Evidence, 10.6.97, p. 537e.
[65] Who is to Guard the Guards?, para.
8.154.
[66] Submission no. 40, pp. 2-3.
[67] ibid., para. 8.162.
[68] The problem has been exacerbated by budget
cuts to the Australian Federal Police. At a hearing of the Committee on
16 December 1997 an exchange of correspondence between the NCA and AFP
was tabled which indicated that the AFP was unable to provide officers
for secondments from its Eastern and Southern regions (essentially Sydney
and Melbourne). In the circumstances, the NCA invitation for secondments
was withdrawn.
[69] NCA Annual Report 1996-97, p. 6.
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