Footnotes

[1] NCA Act, s. 55(1). Section 55 is set out in full on p. xiii above.

[2] Parliamentary Joint Committee on the National Crime Authority, The National Crime Authority - An Initial Evaluation, May 1988, para. 4.31.

[3] Government Response to the Report of the Parliamentary Joint Committee on the National Crime Authority Entitled ‘An Initial Evaluation’, tabled in the House of Representatives on 3 November 1988 and in the Senate on 7 November 1988, p. 3.

[4] Arthur Andersen & Co, National Crime Authority: Strategic Organisational Review: Final Report, July 1989. The reason for the report and its conclus­ions are set out in chapter 3 below.

[5] Crimes Legislation Amendment Act 1988, s. 6.

[6] In repealing the sunset clause, the Government stated:

                   The decision to continue the Authority beyond 30 June 1989 is a recognition of the valuable and innovative role which the Authority has played thus far in the fight against organised crime. In the last four years, the Authority has demonstrated the effectiveness of the task force approach in this fight. This approach uses teams of highly skilled lawyers, accountants and police investigators endowed with special powers beyond those available to police. The impact of the NCA has been felt in the areas of drug trafficking, white collar crime and the corruption of public officials. The other critical aspect of the NCA's operations is the support it enjoys from all States and the Northern Territory which participate in the Inter-Governmental Committee on the National Crime Author­ity chaired by the Commonwealth. (House of Representat­ives, Hansard, 24 February 1988, p. 627 (Hon. C. Holding, 2nd Reading Speech, Crimes Legislation Amendment Bill))

[7] On 11 November 1991, when preparation of this report was virtually complete, it was announced that Justice Phillips would be leaving the Authority to take up the position of Chief Justice of Victoria on 17 December 1991.

[8] See Appendix 1 for the text of this ‘Future Directions’ submission.

[9] See paras. 6.20 - 6.23 below for the composition and functions of the Inter-Governmental Committee (IGC).

[10] On 21 August 1990, the Attorney-General announced that the Commonwealth Government had approved the establishment, during the next three years, of permanent Authority offices in Adelaide, Brisbane and Perth, to supplement existing permanent offices in Melbourne and Sydney: NCA submission, p. 9. The Authority had operated temporary offices in Perth (1985‑87) and Adelaide (1989-91).

[11] Letter from the Attorney-General to the Committee dated 21 September 1990.

[12] See Appendixes 3 and 4 for details.

[13] pp. 1-2.

[14] For example, see para. 5.82 below on the fact that the Authority's Corporate Plan is subject to annual review and updating.

[15] .           NCA, Written Answers, July 1991, A2.

[16] See the discussion paper by the Hon. M.J. Young, Special Minister of State, and Senator the Hon. Gareth Evans, Attorney-General, A National Crimes Commission?, AGPS, Canberra, 1983, p. 3 for a list of the reports from these Royal Commissions and from other pertinent inquiries.

[17] The Committee ceases to exist when the House of Representatives is dissolved for an election: NCA Act, s. 53(4). A new Committee is created at the beginning of each new Parliament. The Committee was initially created in 1984, and has been re-established by newly-elected Parliaments in 1985, 1987 and 1990.

[18] Parliamentary Joint Committee on the National Crime Authority, The National Crime Authority - An Initial Evaluation, May 1988, para. 2.23.

[19] The new Government argued that the legislation gave no role to and lacked the support of the States; had ill-defined functions; had insufficiently defined and limited powers; and lacked over-riding safeguards like oversight by the Ombudsman and regular judicial audits: Senate, Hansard, 10 November 1983, p. 2492 (Senator the Hon. Gareth Evans).

[20] The Hon. M.J. Young, Special Minister of State, and Senator the Hon. Gareth Evans, Attorney-General, A National Crimes Commission?, AGPS, Canberra, 1983.

[21] National Crimes Commission Conference, Parliament House, Canberra, 28‑29 July 1983.

[22] Senate Standing Committee on Constitutional and Legal Affairs, The National Crime Authority Bill 1983, AGPS, Canberra, 1984.

[23] See Senate, Hansard, 10 May 1984, p. 1969 (Senator the Hon. Gareth Evans QC, Ministerial Statement): ‘Of the total of 49 recommendations of the Committee, 31 are supported wholly or without any significant change, and 8 are supported with some modifications’.

[24] NCA Act, s. 37.

[25] Evidence, p. 1683 (NCA).

[26] NCA, Annual Report 1989-90, p. 24.

[27] For example, Matter Ten, involving company law and fraud offences, is being carried out pursuant to Commonwealth Reference No. 9 (21 December 1989), Victorian Reference No. 4 and South Australian Reference No. 3 (both approved by the IGC on 9 March 1990): NCA, Annual Report 1989-90, p. 22.

[28] See for example Evidence, p. 656-57 (Police Association of NSW); p. 698 (NSW Bar Association); p. 818 (NSW Law Society); p. 1178 (Tasmania Police); p. 1280 (Assistant Commissioner Graham Sinclair); pp. 1500-01 (Mr Russell Hogg); p. 1679 (NCA); submission from Mr Paul Delianis, p. 2; submission from the IGC, p. 13. See also C. Corns, ‘Evaluating the National Crime Authority’, Law Institute Journal, September 1991, p. 829.

[29] cf. Evidence, p. 395, where Mr Henry Rogers, a member of the Authority's staff, told the Committee on 5 November 1990: ‘There is a suspicion within the staff of the Authority that figures are being claimed as NCA successes that the NCA has had virtually nothing to do with’.

[30] NCA, Annual Report 1989-90, p. 56.

[31] NCA, Annual Report 1989-90, pp. 63-64 states that cost-sharing arrangements apply to Matters One, Six to Ten, and Twelve. The basic cost-sharing formula is set out on p. 63, and is subject to negotiated variations for individual Matters.

[32] NCA, Annual Report 1989-90, p. 64.

[33] This reference was issued on 24 November 1988. It concerned allegations of bribery and corruption of, or by, police officers and other South Australian officers, illegal gambling, extortion and prostitution, drug offences, and murder or attempted murder: NCA, Annual Report 1989-90, p. 21.

[34] NCA submission, p. 25.

[35] Figure supplied to the Committee by the Authority.

[36] The services of seconded police are used by the Authority pursuant to ss. 49 and 58 of the NCA Act. In performing services for the Authority, seconded police remain officers of their home force and retain the associated powers and liabilities: NCA submission, p. 41.

[37] Evidence, p. 1257 (Assistant Commissioner Graham Sinclair).

[38] Notification of understated/undeclared income by the Authority to the Australian Taxation Office can and has led to the issue of taxation assessments. The figures shown in this column do not include matters where taxation assessments have later been issued by the ATO.

[39] The figures in this table show the total assessments issued as at 30 June 1991 by the ATO. Where assessments previously issued as a result of Authority investigations have been amended or withdrawn by the ATO, only the latest figure (as at 30 June) is shown.

[40] Includes the value of assets seized under the Customs Act 1901 as well as under proceeds of crime legislation.

[41] No assessment has been issued to date as a result of this information and precise figures cannot be provided at this time.

[42] This amount is less than the $19.1m shown in the Authority's Annual Report for 1989-90, p. 33. The decrease resulted from a Commonwealth Director of Public Prosecutions decision to release certain property which was then sold, so as not to disadvantage a mortgagee.

[43] This is the total value of orders obtained against Bruce Richard Cornwell and Barry Richard Bull, the two principals convicted as a result of investigations under Matter No. Three. The value of identified assets may not equal this amount.

[44] National Crime Authority, Operation Silo: Report of the Investigation, AGPS, Canberra, 1987, p. 27.

[45] ibid. The Report does not indicate if the two remaining taxpayers had sufficient assets to enable to ATO to recover the amounts assessed as owing.

[46] .           NCA submission, p. 28. The submission notes that persons charged with more than one category of offence have been included in the figures for each relevant category.

[47] The Committee gives an account of the differences with the Authority in its First Report, in the section ‘Relationship Between the Committee and the Authority’, particularly paras. 40-42 and paras. 56-58.

[48] Parliamentary Joint Committee on the National Crime Authority, First Report, AGPS, Canberra, 1985.

[49] First Report, p. xiii.

[50] Parliamentary Joint Committee on the National Crime Authority, Second Report, AGPS, Canberra, 1986, para. 3.

[51] Senate, Hansard, 13 June 1986, p. 4032.

[52] Parliamentary Joint Committee on the National Crime Authority, Second Report, AGPS, Canberra, 1986, para. 6.

[53] Second Report, para. 7.

[54] Second Report, para. 41.

[55] Senate, Hansard, 25 February 1987, p. 643.

[56] The Initial Evaluation considered 22 written submissions and took evidence in camera on two days from a limited number of witnesses.

[57] Initial Evaluation, para. 1.4.

[58] Initial Evaluation, paras. 1.4 and 1.6.

[59] Initial Evaluation, para. 1.7.

[60] Initial Evaluation, para. 4.31. The Government Response to the Initial Evaluation noted this recommendation, and that such an evaluation would be ‘... consistent with the Joint Committee's function under the NCA legislation ...’, Government Response to the Report of the Parliamentary Joint Committee on the National Crime Authority Entitled ‘An Initial Evaluation’, tabled in the House of Representatives on 3 November 1988 and in the Senate on 7 November 1988, p. 3.

[61] Parliamentary Joint Committee on the National Crime Authority, Third Report, AGPS, Canberra, 1989, para. 1.7.

[62] Third Report, paras. 2.5 to 2.37. The Committee recommended (Senator Cooney dissenting) that the Authority be provided with a greater role in the choice of counsel by the DPP in relation to prosecutions arising from Authority investigations: Third Report, para. 2.13.

[63] Initial Evaluation, para. 4.15.

[64] Initial Evaluation, para. 4.16.

[65] Initial Evaluation, para. 4.17.

[66] Government Response to the Report of the Parliamentary Joint Committee on the National Crime Authority Entitled ‘An Initial Evaluation’, tabled in the House of Representatives on 3 November 1988 and in the Senate on 7 November 1988, p. 4.

[67] See paras. 8.156 to 8.158 below for the present Committee's recommendation on this issue.

[68] Initial Evaluation, para. 4.18.

[69] Initial Evaluation, para. 4.19.

[70] Submissions from Commissioner Hunt of the South Australia Police, 12 October 1990, p. 2 and 4 February 1991, p. 4. For similar criticism see Evidence, p. 506 (Police Federation of Australia and New Zealand).

[71] Evidence, p. 1255.

[72] Initial Evaluation, para. 3.21. See paras. 5.38 to 5.41 below for the increased emphasis the Authority has given to intelligence matters since 1988.

[73] The Committee analyses the development of the Authority's strategy under Justice Phillips in chapter 5 below.

[74] NCA submission, p. 10.

[75] Evidence, p. 372.

[76] An account of these matters is in the Initial Evaluation, paras. 3.26 to 3.29.

[77] Evidence, p. 411.

[78] Evidence, p. 434.

[79] See for example, Initial Evaluation, para. 2.40; Third Report, para. 2.3.

[80] Initial Evaluation, para. 3.10.

[81] Initial Evaluation, para. 3.17.

[82] Initial Evaluation, paras. 4.27 and 4.28.

[83] Initial Evaluation, para. 4.27.

[84] Initial Evaluation, para. 4.29.

[85] Initial Evaluation, para. 4.22. The Initial Evaluation noted that the Northern Territory Police, the Australian Federal Police Association and Mr Vic Anderson had proposed to the Committee that greater consideration should be given to the use of task forces involving other agencies to conduct investigations on behalf of the Authority.

[86] Initial Evaluation, para. 3.20.

[87] Initial Evaluation, para. 4.22.

[88] Government Response to the Report of the Parliamentary Joint Committee on the National Crime Authority Entitled ‘An Initial Evaluation’, tabled in the House of Representatives on 3 November 1988 and in the Senate on 7 November 1988, p. 5. The Committee discusses the proposed use of task forces under Justice Phillips' chairmanship in paras. 5.56 to 5.67.

[89] Evidence, pp. 524-25 (Police Federation of Australia and New Zealand).

[90] Initial Evaluation, para. 3.24.

[91] Initial Evaluation, para. 3.24.

[92] Initial Evaluation, para. 3.25.

[93] Initial Evaluation, para. 4.32.

[94] Initial Evaluation, para. 4.33.

[95] Initial Evaluation, para. 4.33.

[96] Initial Evaluation, para. 4.1.

[97] Initial Evaluation, paras. 4.4 - 4.5. See also, C. Corns, ‘The National Crime Authority: An Evaluation’, Criminal Law Journal, vol. 13(4), August 1989, pp. 241-43.

[98] Third Report, para. 1.18.

[99] NCA, Annual Report 1988-89, AGPS, Canberra, 1989, p. 57.

[100] Submission, p. 10. The Committee refers to the fact that the Arthur Anderson report has not been made publicly available in paras. 7.84 - 7.87 below.

[101] Parliamentary Joint Committee on the National Crime Authority, Operation Ark, Canberra, 1990.

[102] Third Report, para. 1.18.

[103] ‘The Role of the National Crime Authority in Australian Law Enforcement’, text of speech delivered at Queen's Inn, University of Melbourne, 8 August 1989, pp. 26-27.

[104] ibid., p. 27, emphasis in original.

[105] ibid.

[106] In camera Evidence by Mr Faris, 1 December 1989, p. 968.

[107] ibid., pp. 1039-51.

[108] See for example, ‘NCA Chief "a victim of smear"’, Sunday Age, 18 February 1990, p. 3. The Minister for Justice, Senator the Hon. Michael Tate, was reported as saying that Mr Faris had submitted his resignation on the grounds of ill health, after less than eight months in the job: see ‘Urgent hunt for successor as ill-health forces NCA head to resign’, The Canberra Times, 13 February 1990, p. 2.

[109] Letter from the Acting Chairman of the Authority to the Committee dated 19 July 1990.

[110] Letter from the Attorney-General to the Committee dated 19 September 1990.

[111] National Crime Authority, Operation Hydra: South Australian Reference No. 2, February 1991, para. 1.1.

[112] Operation ‘Hound’ inquired into allegations of illegal conduct on the part of South Australian Police officers in the withdrawal of charges for Road Traffic Act offences, and other criminal charges, together with an allegation of improper conduct against the current Crown Prosecutor. See National Crime Authority, Operation Hound: South Australian Reference No. 2, December 1990, para. 2.

[113] Operation ‘Hydra’ was an investigation into the potential for blackmail in the operation of the vice industry in Adelaide in the late 1970s and early 1980s which was raised by a media program, and whether there was any evidence that any public official, particularly the South Australian Attorney-General, was being blackmailed by operators of vice establishments to ensure favourable treatment, or whether there was any evidence that the Attorney-General made an improper decision because of an association with known or suspected criminals: National Crime Authority, Operation Hydra: South Australian Reference No. 2, February 1991, para. 1.14.

[114] Operation ‘Noah’ is an annual phone-in when the public can provide information anonymously to police about drug dealers and drug distribution.

[115] See para. 3.65 above for the terms of South Australian Reference No. 2.

[116] National Crime Authority, South Australian Reference No. 2: First Report, December 1989, para. 5.

[117] Parliamentary Joint Committee on the National Crime Authority, Operation Ark, Canberra, 1990.

[118] Senate, Hansard, 21 February 1991, p. 1070.

[119] cf. Senate, Hansard, 21 February 1991, p. 1070 (statement agreed to by the Committee).

[120] Third Report, para. 1.18. See also Senate, Hansard, 25 May 1989, p. 2717, where a member of the Committee, Senator Hill, drew the Government's attention to the concern about the loss of continuity that was to occur on 30 June 1989. Media reports had also raised concerns; see for example, ‘Confusion grows as NCA appointment deadline approaches’, The Age, 5 May 1989, p. 5.

[121] Senate Standing Committee on Constitutional and Legal Affairs, The National Crime Authority Bill 1983, AGPS, Canberra, 1984, para. 7.9.

[122] ibid., para. 7.10.

[123] In camera Evidence, 2 June 1989, p. 943.

[124] Transcript of Evidence given by Justice Stewart, 11 March 1991, pp. 5-6.

[125] Transcript of Evidence given by Justice Stewart, 11 March 1991, pp. 13-14.

[126] NCA, Written Answers, July 1991, C4.

[127] ibid., C5.

[128] See Evidence, pp. 1571-1580 (Mr Carl Mengler); pp. 1603-1626 (Mr David Smith).

[129] Evidence, pp. 1276-78.

[130] NCA, Written Answers, July 1991, C1(f).

[131] Evidence, p. 1208.

[132] Evidence, pp. 1208-9.

[133] Evidence, p. 1276.

[134] Evidence, pp. 1276-77.

[135] NCA, Written Answers, July 1991, C2.

[136] NCA, Written Answers, July 1991, C1.

[137] Attachment to a letter to the Committee from the Chairman of the National Crime Authority, 2 September 1991.

[138] ibid.

[139] NCA, Written Answers, July 1991, C2.

[140] .        The nature and extent of these difficulties, particularly in relation to allegations involving named prostitutes, is described in the Authority's Operation ‘Hydra’ report, paras. 1.35 - 1.37.

[141] Evidence, p. 537.

[142] Evidence, pp. 341, 342, 347, 1384-85, 1388. See also Evidence, p. 822 where Mr John Marsden, Senior Vice-President of the NSW Law Society, expressed personal support for the Victorian Council's view on abolition, although he noted that the Law Society had not expressed a view on the issue.

[143] Evidence, pp. 1436-40.

[144] Evidence, pp. 932-34.

[145] Evidence, p. 933.

[146] p. 1.

[147] Evidence, pp. 397-98, 401. The agency envisaged would investigate federal offences and ‘those major offences of organised crime which cut across State boarders’.

[148] p. 29.

[149] Evidence, p. 897.

[150] Evidence, pp. 898-99.

[151] Evidence, p. 898.

[152] Evidence, p. 899.

[153] Evidence, p. 899. See also the submission from the Police Federation of Australia and New Zealand, dated 21 October 1990, p. 2: ‘Since 1984 Police organisations have been and continue to be developed and legislatively encouraged in the investigation of large scale, and indeed all crime, to a stage that today there is little, if any, professional need for the NCA’.

[154] Evidence, pp. 642-43.

[155] Evidence, p. 655.

[156] p. 4.

[157] Evidence, p. 761.

[158] Frank Costigan QC, ‘Anti-Corruption Authorities in Australia’, text of an address to the Labor Lawyers' Conference in Brisbane on 22 September 1990, p. 16. See para. 5.90 below for an outline of what Mr Costigan thought the Authority's role should be.

[159] Evidence, pp. 373, 376. See para. 5.91 below for Justice Vincent's views on how the Authority should alter its direction.

[160] Evidence, pp. 497-98, 499.

[161] p. 7. The submission noted that the reasons for its continued existence are much the same as those identified by the Royal Commissions which preceded its establishment: p. 44.

[162] p. 7.

[163] NCA submission, p. 8.

[164] p. 8.

[165] pp. 8-9.

[166] p. 3.

[167] p. 1.

[168] p. 1.

[169] p. 5.

[170] p. 5.

[171] Evidence, p. 956.

[172] See the views of the South Australian and New South Wales Police Associations quoted in paras. 4.4 and 4.5 above. See also the comment made to the Committee by Mr Russell Hogg, a Sydney academic: ‘Some of the things that the NCA has been doing, clearly the principal things it has been doing, probably could be done by other law enforcement agencies, if they were resourced the way the NCA is, to a degree, and through cooperative arrangements like joint task forces and so forth’: Evidence, pp. 1505-06.

[173] Evidence, pp. 646, 659 (Police Association of NSW). See paras. 5.44 - 5.46 on the role of the ABCI and the extent which its activities overlap with those of the Authority.

[174] Evidence, pp. 391-92 (Mr Henry Rogers).

[175] See the views of the Police Associations of South Australia and New South Wales set out in paras. 4.4 and 4.5 above. See also the submission from the Australian Federal Police Association, p. 3. The NCA submission, p. 7 commented:

                   the capacity of police forces to combat organised crime has increased somewhat since 1984, through the provision of increased powers (to intercept telephone conversations and to gain limited access to tax records, for example), the recruitment of persons with accounting and legal skills, and through improvements in co-operation between agencies, for which the NCA believes it can claim some credit, and to which it intends to devote increased resources.

[176] The Hon. M.J. Young, Special Minister of State, and Senator the Hon. Gareth Evans, Attorney-General, A National Crimes Commission?, AGPS, Canberra, 1983, p. 6.

[177] p. 7. Mr Lloyd Taylor, Secretary of the Police Association of NSW, told the Committee that, if history was any guide, there was still a reluctance to give the powers to the police. However, he also suggested that the public at large might support conferral of the powers on the police: Evidence, pp. 647-48.

[178] See for example National Crime Authority, Operation Silo: Report of the Investigation, AGPS, Canberra, 1987, p. 6 for a description of the use of these powers in a particular investigation.

[179] Evidence, p. 360 (Victorian Council for Civil Liberties); pp. 538-39, 564 (Queensland Council of Civil Liberties); p. 745 (NSW Council for Civil Liberties); p. 936 (South Australian Council for Civil Liberties).

[180] .        The Hon. M.J. Young, Special Minister of State, and Senator the Hon. Gareth Evans, Attorney-General, A National Crimes Commission?, AGPS, Canberra, 1983, p. 6.

[181] The NCA submission contains an earlier version of the main part of the Corporate Plan.

[182] p. 18.

[183] NCA Corporate Plan, p. 20.

[184] Evidence, p. 1667.

[185] p. 3.

[186] p. 5, italics in original.

[187] NCA, Written Answers, July 1991, A6. In its submission, p. 9, the NCA stated: ‘The term ‘organised crime’ does not appear in the Act; the defini­tion of relevant criminal activity contained in the Act can be considered as the legislature's way of defining this problematical term’.

[188] On the lack of agreement on a definition, see for example, C. Corns, ‘The National Crime Authority: An Evaluation’, Criminal Law Journal, vol. 13(4), August 1989, p. 241. An attachment to the submission from the Australian Federal Police Association listed 10 different definitions of ‘organised crime’. The Fitzgerald Report commented: ‘an exhaustive definition of organized crime is both impossible and unnecessary’: Queensland, Report of a Commission of Inquiry Pursuant to Orders in Council Dated (i) 26 May 1987 (ii) 24 June 1987 (iii) 25 August 1988 (iv) 29 June 1989, Government Printer, Queensland, 1989, p. 162.

[189] Future Directions, p. 5.

[190] Evidence, pp. 1667-68.

[191] Evidence, p. 1667.

[192] ‘NCA's brave new face’, The Age, 30 August 1991, p. 11.

[193] Mr Carl Mengler, an Assistant Commissioner of the Queensland Police attached to the CJC who had previously worked at the Authority, criticised the Authority for handing back drug-related investigations to police forces:

                   you told us you were going to show us the way in investig­ating traditional organised crime and it is out there and it is big. If anyone thinks for one moment it is not alive and well, they are kidding themselves. What have they done? They say, ‘We are going to give it back to you’. For two, three, five or seven years ‑ has it been going seven years? ‑ they say, ‘We are giving it back’, effectively because it is too hard. Whether it is too hard or not, I do not know, but that is the perception of every police officer in this country at the moment. It is too hard for them and they will give it back. (Evidence, pp. 1594-95)

           The submission from the Police Federation of Australia and New Zealand, dated 21 October 1990, stated (p. 5): ‘Unfortunately from current activities and public statements, it seems that the NCA have now found that narcotics are either too hard or that for some reason the rivalry and contention in its investigation is to be avoided’. The Secretary of the Police Association of NSW, Mr Lloyd Taylor, told the Committee: ‘I really cannot quite follow the emphasis changing from drug-related matters to fraud’: Evidence, p. 648. The submission from the Australian Federal Police Association, p. 16 obser­ved: ‘In the Association's view the NCA's new focus does not reflect a reduction in the incidence of drug related organised criminal activity ...’. Mr Ron Merkel QC of the Victorian Council for Civil Liberties asked:

                   What justification can there be for moving away from what we have been hearing about for seven years ‑ illegal drug dealings and organised crime? It has not solved the problem because it has achieved hardly any convictions. No‑one believes for a minute that the problem has gone away. (Evidence, p. 1386)

[194] Evidence, p. 1217. See also Evidence, p. 1317, where Detective Superintendent R.C. McAllan of the Victoria Police was asked if the NCA's change of emphasis would leave a gap. He responded:

                   Yes and no. There will be a gap because the NCA was able to contribute things that a State could not do. And I do not know whether the State would readjust by establishing joint task forces and those sorts of things and in any case there would still be things not there that the NCA did have at its disposal. Yes, there will be a gap and it will be difficult to provide resources from the State police forces to fill that gap.

[195] Evidence, p. 1217.

[196] pp. 6, 14. See also Evidence, p. 1230 (Australian Federal Police Association).

[197] Evidence, p. 921. See also Evidence, p. 663 where the Police Association of New South Wales gave a more tentative view.

[198] Future Directions, p. 4.

[199] Evidence, p. 1657; Future Directions, p. 4.

[200] Evidence, p. 1657.

[201] Future Directions, p. 4. See also Evidence, p. 1689 (NCA).

[202] Future Directions, p. 4.

[203] Evidence p. 1441.

[204] C. Corns, ‘New directions for the NCA’, Legal Service Bulletin, vol. 16(3), June 1991, p. 115.

[205] Evidence, p. 824.

[206] p. 9.

[207] IGC submission, pp. 9-10.

[208] ‘NCA to seek reference for fraud inquiry’, The Age, 30 August 1991.

[209] On what is meant by ‘following the money trail’ see for example the extract from Mr Frank Costigan QC's 1983 Sir John Barry Memorial Lecture which was quoted in the second reading speech accompanying the introduction of the National Crime Authority Bill: Senate, Hansard, 10 November 1983, pp. 2492-93.

[210] Evidence, p. 1388 (Victorian Council for Civil Liberties).

[211] Evidence, pp. 809-10 (Mr Arthur King); p. 1559 (Mr R.E. Dixon); p. 1594 (Mr Carl Mengler); submissions from the Police Association of South Australia, p. 4; and the Australian Federal Police Association, pp. 15-16, which noted that the AFP is specifically tasked with investigation of major fraud against the Commonwealth.

[212] Evidence, pp. 614, 622 (Mr B. Partridge). See also Frank Costigan QC, ‘Anti-Corruption Authorities in Australia’, text of an address to the Labor Lawyers' Conference in Brisbane on 22 September 1990, pp. 6-7.

[213] Evidence, p. 1473.

[214] Evidence, pp. 1472-73.

[215] Future Directions, pp. 4-5.

[216] Evidence, p. 1487.

[217] Evidence, p. 1480.

[218] Evidence, p. 1480.

[219] Evidence, pp. 1480-81.

[220] Evidence, p. 1489.

[221] Evidence, p. 1482.

[222] Evidence, p. 1488.

[223] Evidence, pp. 1481, 1483.

[224] Evidence, p. 1486.

[225] Evidence, p. 1486.

[226] Evidence, pp. 1486-87.

[227] Evidence, p. 1657.

[228] NCA, Annual Report 1989-90, p. 38.

[229] p. 15.

[230] p. 15.

[231] Evidence, p. 1659.

[232] On the reluctance to share intelligence, see for example Australia, Royal Commission of Inquiry into Drug Trafficking: Commissioner: The Hon. Mr Justice D.G. Stewart, Report: February 1983, AGPS, Canberra, 1983, pp. 522-26; and Australia, Office of the Special Prosecutor, Annual Report 1982‑83, AGPS, Canberra, 1983, p. 48. The submission from Mr Michael Holmes, dated 20 December 1990, commented (p. 15): ‘There continues to be a lack of true co-operation between Law Enforcement Agencies in Australia. There still is territorial jealousy and mistrust which inhibits the flow of information.’

[233] The Committee was told in early October 1991 that this work was still continuing.

[234] This conference took place in August 1991 in Canberra.

[235] Evidence, pp. 1652-53.

[236] p. 10. The submission from the Police Association of South Australia, dated 4 February 1991, also highlighted the risk of duplication (p. 4).

[237] Submission, p. 10. See Senate, Hansard, 9 October 1991, p. 1662, where the Minister for Justice and Consumer Affairs, Senator the Hon. Michael Tate, stated that the Australian Federal Police's national intelligence division was compiling a report into allegations that Japanese businessmen were launder­ing the proceeds of overseas crime into Australian real estate and tourist developments. The Committee notes that the Authority was at the same time also doing a special investigation into the extent and avenues of money-laundering in Australia.

[238] Australian Federal Police Association submission, dated 22 February 1991, p. 10.

[239] p. 22.

[240] Australian Police Ministers' Council, National Common Police Services Annual Report 1989‑90, AGPS, Canberra, 1991, p. 16. (The ABCI's annual reports are published as part of the National Common Police Services Annual Reports.) In evidence to the Committee, the ABCI's Director, Mr Keith Askew, said that the ABCI's client group had widened in more recent times to include Federal agencies such as Customs, Immigration, the Australian Quarantine Inspection Service and the National Parks and Wildlife Service, and State agencies such as the NSW Crime Commission, ICAC and the Queensland CJC: Evidence, p. 1701.

[241] Australian Police Ministers' Council, National Common Police Services Annual Report 1989‑90, AGPS, Canberra, 1991, p. 22. See also Evidence, pp. 1726-27.

[242] p. 24.

[243] Senate Standing Committee on Constitutional and Legal Affairs, The National Crime Authority Bill 1983, AGPS, Canberra, 1984, para. 3.12.

[244] ibid., para. 3.13.

[245] ibid., para. 3.14.

[246] Senate, Hansard, 10 May 1984, p. 1972 (Senator the Hon. Gareth Evans QC, Ministerial Statement).

[247] Evidence, p. 1704.

[248] Evidence, p. 1705. In addition to the two-way passing of intelligence, the ABCI has hosted conferences for the NCA and the agencies cooperate on training: Evidence, pp. 1706, 1728, 1733. 

[249] Evidence, p. 1714.

[250] Evidence, p. 1719. Various security features will operate to prevent access from one end of the link to the full database holdings at the other.

[251] Australian Police Ministers' Council, National Common Police Services Annual Report 1989‑90, AGPS, Canberra, 1991, p. 19. The Committee was chaired by the then Commissioner of the Tasmania Police, Mr Bill Horman. Its report has not been publicly released.

[252] Evidence, pp. 1713-14.

[253] p. 30.

[254] Senate, Estimates Committee E, Hansard, 5 September 1991, p. E76. The example given was the question of what powers police working outside their own jurisdiction should possess (e.g. a State policeman from Tasmania working in NSW).

[255] Evidence, p. 1656.

[256] Evidence, p. 1655.

[257] C. Corns, ‘New directions for the NCA’, Legal Service Bulletin, vol. 16(3), June 1991, p. 115.

[258] Future Directions, p. 1.

[259] Evidence, p. 1651.

[260] IGC submission, p. 11.

[261] Future Directions, p. 2.

[262] Evidence, pp. 1651-52.

[263] IGC submission, p. 2.

[264] IGC submission, p. 11.

[265] IGC submission, p. 11.

[266] Evidence, pp. 1494‑95.

[267] Evidence, pp. 1656-57.

[268] Evidence, p. 1658.

[269] NCA, Written Answers, August 1991, Part 2, A1. The NCA submission, p. 17 also referred to NCA quarterly Operations Conferences attended by representatives of a large number of Commonwealth, State and Territory agencies with an interest in law enforcement: these conferences ‘provide a forum for communicating to other law enforcement agencies a sufficient understanding of NCA activities to enable them to avoid as far as possible action which might cut across NCA operations, to exchange relevant inform­ation and intelligence, and to discuss matters of mutual concern’ (p. 18). For criticism of the effectiveness of these Operational Conferences in the past see para. 3.24 above.

[270] Other mechanisms for this purpose include:

              .    the Australian Police Ministers' Council, which comprises the police ministers of all States and Territories and the Minister for Justice;

              .    a related body, the Senior Officers' Group, which comprises the police commissioners of all States and Territories and several senior officials;

              .    the Law Enforcement Policy and Resources Committee, which is chaired by the Attorney-General and includes the heads of all federal law enforcement agencies; and

              .    the Heads of Commonwealth Operational Law Enforcement Agencies Committee, which discusses operational matters of mutual concern.

[271] The Mission Statement is set out at para. 5.6 above.

[272] p. 14.

[273] Future Directions, p. 2.

[274] Quoted in C. Mitchell, ‘In open partnership’, Law Institute Journal, March 1991, p. 122.

[275] See paras. 6.83 - 6.84 below.

[276] e.g. see NCA Corporate Plan, p. 5.

[277] para. 3.9.

[278] e.g. see Evidence, p. 517 (Mr Chris Eaton, Police Federation of Australia and New Zealand): ‘There has to be a strategic overview of crime in Australia, which does not exist at present, clearly. We have not seen the National Crime Authority provide, to my knowledge anyway, this Committee or any other jurisdiction, or any other government, a strategic overview of organised crime in this country.’

[279] Evidence, p. 1659. See Grant Wardlaw, ‘Conceptual Frameworks of Organised Crime - Useful Tools or Academic Irrelevancies?’, paper delivered at the Australian Institute of Criminology Conference: Organised Crime: 5-7 September 1989, Canberra. In this paper Dr Wardlaw noted the difficulty caused by lack of an agreed definition of organised crime, and how law enforcement agencies have proceeded without one (pp. 2-3). He commented:

                   The difficulty with this attitude is that ‘getting on with the job’ necessarily involves either an idiosyncratic approach to the problem or little more than ‘target-of-opportunity’ enforcement, there being no strategic vision to guide the development and implementation of empirically­-based strategies. The result is a running series of sniping attacks between one enforcement agency and another (especially between traditional police forces and new investigative agencies established primarily on the basis of the perceived need for novel means of combating organised crime), an emphasis on arrests for arrest's sake (primarily a response by investigative agencies to the absurd pressure they are placed under to ‘prove’ their worth), and an over-emphasis on enforcement strategies to the detriment of serious consider­ation of economic, political and social strategies designed to impact on the conditions which allow organised crime to develop and prosper. (p. 3)

           Mr Russell Hogg, who teaches at Macquarie University, made a broadly similar argument to the Committee on 25 March 1991: Evidence, pp. 1499-1502, 1504-05.

[280] cf. the conclusion in the Initial Evaluation, para. 4.3 that the lack of a statistical base made it impossible to say whether the work of the National Crime Authority had led to a discernible diminution in the extent of criminal activity.

[281] See footnote 13 in chapter 2 for references to some of the differing views.

[282] The Authority pointed out in its Annual Report 1989-90, p. ix:

                   It will be appreciated that, in terms of combatting organised crime, the benefits flowing from such activities as the Authority's cooperation with other agencies and the gather­ing and dissemination of relevant intelligence do not permit of any precise measurement. Similar considerations apply to research and proposals for operational and legal reform.

[283] p. 7. See also Evidence, p. 1680, where Justice Phillips indicated that ‘anecdotal material’ such as reports of the views of media NCA-watchers will often form part of the material for assessment of the Authority's performance.

[284] NCA, Corporate Plan, p. 22.

[285] The Australian Federal Police Association's submission, p. 6 refers to the Authority's special powers and states there is a requirement for ‘some measure of their incremental investigative utility leading to the assembling of admissible evidence beyond that which could be obtained utilising conventional police investigative methods in the absence of such powers ...’.

[286] The submission from the Australian Federal Police Association, p. 8 commented (in relation to the draft performance measures in the Authority's submission, not those in the Corporate Plan, which was not then complete):

                   What is not evident are the requisite detailed performance indicators necessary to more properly measure efficiency, that is, the cost of producing these results. In this respect such detailed costings need to incorporate the major and ongoing contribution of the attachment of police officers, access to intelligence holdings including the AFP's establis­h­ed overseas liaison network, the additional secondment of AFP/State/Territory police officers to NCA joint task forces and the provision of telephone interception and witness protection services. In other words a detailed analysis of inputs and outputs.

[287] The Authority's statement was made in its submission, p. 19.

[288] Australian Federal Police Association submission, p. 8.

[289] Evidence, p. 984. See similarly the submissions from the Tasmania Police, the Western Australia Police Department and the Police Federation of Australia and New Zealand, all of which were written before Future Directions was adopted. The Chief Commissioner of the Victoria Police, Mr Kel Glare, was reported as responding to Future Directions by saying:

                   I am absolutely delighted at the direction the NCA is going to take. I think it's what the NCA was originally set up for, and without wishing to criticise those who have preceded Mr Justice Phillips, I'm very keen on the proposal. (‘Police welcome new direction for the NCA’, The Age, 27 Novem­ber 1990, p. 18.)

[290] p. 2.

[291] Evidence, p. 644.

[292] Evidence, p. 652.

[293] C. Corns, ‘New directions for the NCA’, Legal Service Bulletin, vol. 16(3), June 1991, p. 113.

[294] Frank Costigan QC, ‘Anti-Corruption Authorities in Australia’, text of an address to the Labor Lawyers' Conference in Brisbane on 22 September 1990, pp. 14-15. The submission of the NSW Bar Association, 3 October 1990, p. 5 endorsed the Costigan paper's view of what functions the Authority should perform.

[295] Evidence, pp. 370-71.

[296] Evidence, p. 352.

[297] Submission from the Police Federation of Australia and New Zealand, p. 8: the definition of ‘relevant offence’ in the NCA Act ‘should be extended to include any serious indictable offence that in the public interest warrants the exercise of special powers, such as serial or thrill murders as an example’. See also Evidence, p. 648 (Police Association of NSW).

[298] Evidence, pp. 723-24 (Mr John Hatton MP); submission from Mr Malcolm Mackellar, p. 1. In support of his argument, Mr Mackellar raised a specific complaint involving the Department of Immigration, Local Government and Ethnic Affairs. The Committee sought a response from the Department to this complaint. The Committee was satisfied by the response that the specific complaint was unfounded.

[299] .        NCA Act, s. 4(1): the definition of ‘relevant offence’ includes bribery or corruption of or by a Commonwealth, State or Territory officer, provided some organisation, planning or series of offences is involved and the offence is punishable by imprisonment for a period of three or more years.

[300] p. 35.

[301] p. 37.

[302] NCA, Annual Report 1989-90, p. 36.

[303] p. 3. Mr Delianis retired in 1987 as Deputy Commissioner of the Victoria Police.

[304] p. 9. See similarly the submission from Mr Michael Holmes, p. 25.

[305] Submission, p. 3.

[306] Evidence, p. 644. See similarly, Evidence, p. 496 (Police Federation of Australia and New Zealand); p. 901 (Police Association of South Australia).

[307] Evidence, p. 710.

[308] Evidence, p. 577.

[309] Evidence, p. 989.

[310] Submission, 22 October 1990, p. 8.

[311] NCA submission, p. 37. See similarly, Evidence, pp. 1675-76 (NCA).

[312] Evidence, p. 893.

[313] Evidence, pp. 548-49.

[314] NCA Act, s. 4(1).

[315] NCA Act, s. 8.

[316] Crimes Legislation Amendment Act (No. 2) 1991, s. 36.

[317] The National Crime Authority (Territory Provisions) Bill 1991 was intro­duced into the ACT Legislative Assembly on 12 September 1991.

[318] NCA Act, s. 9(1)(e).

[319] NCA Act, s. 59(3)-(5).

[320] NCA submission, p. 36.

[321] NCA submission, p. 36.

[322] The ‘Submission by the Attorney-General and the Acting Special Minister of State to the Standing Committee on Constitutional and Legal Affairs in relation to its reference concerning the National Crime Authority Bill and the National Crime Authority (Consequential Amendments) Bill 1983’, para. 24 explained:

                   However appropriate its blend of powers and safeguards in any other respect, the Crime Authority will not be effective without the participation and co-operation of Governments of the States and Northern Territory. The Common­wealth's constitutional power to authorize the Crime Authority to investigate, using coercive powers, offences against State laws is effectively non-existent.

           In oral evidence to the Senate Committee, the Attorney-General, Senator the Hon. Gareth Evans QC, identified three relevant factors:

                   One is the constitutional imperative. The second is the practical imperative - if you want to get on-the-ground co-operation from the States you have to give them a place in the sun in the institutional organisational machinery ...  The third consideration is the political imperative, when it comes to the actual determination of whether or not a particular State is going to lend its assent to a proposed reference. You have three separate pressures operating and they are all combined to produce the particular model which, despite its Heath Robinson appearance to many people, including initially myself, is the only model which I believe satisfies the various pressures that are operating and produces those results. (Senate Standing Committee on Constitutional and Legal Affairs, Reference: National Crime Authority Legislation, Hansard, 15 February 1984, p. 281.)

[323] The submission referred to in the previous footnote, para. 5 details the steps taken. The States were also consulted when the Government prepared its response to the 1984 Senate Committee report: Senate, Hansard, 10 May 1984, p. 1969 (Senator the Hon. Gareth Evans QC).

[324] Senate, Hansard, 5 June 1984, p. 2551 (Senator the Hon. Gareth Evans QC).

[325] Senate Standing Committee on Constitutional and Legal Affairs, Reference: National Crime Authority Legislation, Hansard, 15 February 1984, p. 278 (Senator the Hon. Gareth Evans QC).

[326] ibid.

[327] ibid.

[328] ‘Submission by the Attorney-General and the Acting Special Minister of State to the Standing Committee on Constitutional and Legal Affairs in relation to its reference concerning the National Crime Authority Bill and the National Crime Authority (Consequential Amendments) Bill 1983’, para. 26.

[329] Evidence, p. 348.

[330] Evidence, p. 1285.

[331] p. 3.

[332] NCA, Annual Report 1989-90, p. 11. The meeting was in Darwin on 9 March 1990.

[333] See paras. 3.61 and 3.65 to 3.102 above.

[334] For example, there is no evidence that the IGC acted on claims in the 1980s that the Authority was not following the strategy envisaged at its creation. One such claim was made by Mr Frank Costigan QC: ‘NCA not doing its job, says Costigan’, Sydney Morning Herald, 3 May 1988, p. 4. There is no evidence that the IGC addressed the question whether a different strategic direction for the Authority might have avoided the need for some of the specialist State bodies, including Royal Commissions, to deal with corruption and organised criminal activity. 

[335] Senate, Hansard, 6 June 1984, p. 2665 (Explanatory note on amendment moved by the Government).

[336] NCA, Annual Report 1989-90, p. 6 states: ‘From the time of its establishment in July 1984, the Authority has sought references in relation to twelve matters and has been granted references in relation to eleven ...’. The twelfth matter has since been referred.

[337] s. 9(2).  This provision arose from the need to secure State and Territory cooperation and ‘the understandable concern of the State police forces and Ministers that their particular role in fighting organised crime be not downgraded; that their role be fully appreciated and understood, and that, where appropriate, the State police forces continue to play their traditional crime investigation role’. (Senate, Hansard, 6 June 1984, p. 2594 (Senator the Hon. Gareth Evans QC))

[338] Senate, Hansard, 6 June 1984, p. 2594.

[339] NCA submission, p. 7.

[340] p. 3.

[341] Senate Standing Committee on Constitutional and Legal Affairs, The National Crime Authority Bill 1983, AGPS, Canberra, 1984, paras. 8.7 and 8.26. Senator Missen, in a dissent to the report, agreed with the rejection of judicial audit but supported the use of a parliamentary committee. Senator Chipp's dissent supported Senator Missen on the use of a parliamentary committee. The dissents by Senators Bolkus and Crowley supported judicial audit.

[342] ibid., para. 8.25.

[343] ibid., paras. 8.3 and 8.4.

[344] ibid., para. 8.4.

[345] Evidence, p. 377.

[346] Evidence, p. 423.

[347] Evidence, p. 747. See also Evidence, p. 348 for the Victorian Council for Civil Liberties' view on the importance of the Committee's role.

[348] Evidence, p. 933.

[349] pp. 18-19.

[350] IGC submission, p. 5.

[351] IGC submission, p. 6.

[352] Evidence, p. 1123.

[353] p. 3.

[354] pp. 5-6.

[355] p. 7.

[356] p. 6.

[357] In Parliament on 15 October 1991, the Attorney-General, the Hon. Michael Duffy MP, referred to problems that existed between the IGC, the Authority and this Committee: House of Representatives, Hansard, p. 1965. He referred also to the 25 July 1991 meeting between this Committee and the IGC and stated (p. 1966):

                   However, in starting negotiations with what was a very difficult Committee in the sense of the independence of its members on both sides of the House - I will put it no stronger than that ‑ I think the ante was raised when the abolition of the Committee was put forward by the Inter-Governmental committee. The atmosphere at the time was so bad - this was the view of all the State Attorneys on the Inter-Governmental committee as well as my own view - that the abolition of the Committee was put forward as a very serious and considered position. I would be very surprised if that matter is pushed any further. It arose, I think, because of all of the matters that I have mentioned. The atmosphere is now different.

[358] The Police Association of South Australia indicated that the fact that the Committee consisted of politicians raised doubts as to its independence: Evidence, pp. 903-4, 906-7. Mr Frank Galbally also noted that such doubts might arise in the future: Evidence, p. 1309.

[359] Evidence, pp. 549, 556, 559.

[360] Evidence, p. 554.

[361] Evidence, pp. 348, 1418 (Victorian Council for Civil Liberties); p. 562 (Queensland Council of Civil Liberties).

[362] Evidence, pp. 1104-05 (Australian Federal Police Association); p. 1390 (Victorian Council for Civil Liberties). See also Evidence, pp. 1082 and 1088-90 where Mr Malcolm Kerr, MP, Chairman of the NSW Parliamentary Committee that oversees ICAC, explained the advantages of an oversight committee holding its hearings in public.

[363] Twenty two submissions were received; hearings were held on two days and ten witnesses appeared, including four from the Authority: Initial Evalu­ation, appendixes 2 and 3. 

[364] The Inspector-General of Intelligence and Security has differing responsibili­ties in relation to each of Australia's five intelligence and security agencies. The IGIS has a complaint-investigating role in relation to some of the agencies, including the Australian Security Intelligence Organization. In addition, for each agency, the IGIS can inquire into the legality and propriety of its activities and the effectiveness and appropriateness of its procedures that are designed to ensure that it acts legally and with propriety. The IGIS has wide powers to obtain access to premises, compel production of documents, and require persons to attend and answer questions on oath.

[365] For examples of discussion of the various alternatives, see Evidence, pp. 522-23 (Police Federation of Australia and New Zealand); pp. 806-07 (Mr Arthur King); p. 987 (Commissioner D.A. Hunt); pp. 1060-61 (Law Council of Australia); p. 1106 (Australian Federal Police Association); pp. 1289, 1299, 1309-10 (Mr Frank Galbally).

[366] p. 4. See also Evidence, p. 662 (Police Association of NSW); pp. 1358-59 (Mr D. Berthelsen).

[367] All police working for the Authority are on secondment from another police force. They retain the powers of arrest, pay and conditions they had as members of their home force. Equally, they are subject to whatever police complaints authority or mechanism exists in relation to officers of their home force. Thus, a complaint about the conduct of a member of the Australian Federal Police on secondment to the Authority can be made using the mechanism, including recourse to the Ombudsman, provided by the Complaints (Australian Federal Police) Act 1981. The fact that such jurisdiction exists appears not to be widely known. A person having a complaint against an ‘NCA policeman’ may well not know from which force the officer is seconded. Even if this is known, the complainant may be unaware of the police complaints mechanism applying to members of that force. The police complaints mechanisms do not cover Authority staff who are not seconded police.

[368] Initial Evaluation, p. 70. All completed investigations at that time had found the complaints to be without merit.

[369] Section 50 of the NCA Act provides that the Attorney-General may appoint a legal practitioner to assist the Authority as counsel, either generally or in relation to a particular matter or matters.

[370] NCA Press Release, 28 July 1989, ‘NCA Drug Inquiry’. The counsel was assisted by an Australian Federal Police officer and a Victorian Police officer, both on attachment to the Authority in Melbourne. Counsel found no evidence of impropriety by Authority staff.

[371] Evidence, p. 1684 (NCA).

[372] One complaint received by the Committee involved Mr Mehmed Skrijel. Having heard evidence from Mr Skrijel and others (Evidence, pp. 1356-82, 1627-45), the Committee referred the matter to the Attorney-General.

[373] Evidence, p. 1682. See similarly, Evidence, pp. 1696-97 (NCA).

[374] See para. 6.66 above.

[375] The system is described in Queensland, Criminal Justice Commission, Submission on Monitoring of the Functions of the Criminal Justice Commission, April 1991, p. 175 (submission made to the Queensland Parliamentary Criminal Justice Committee):

                   The Commission recognised ... that there would be complaints against its officers in the course of performing their duties. With a view to accountability, the Commission was concerned to establish an independent mechanism to deal expeditiously with such complaints. To this end, discussions were had with the Attorney-General, the Director of Prosecutions and the Commissioner of Police, whereby such a mechanism was established. This involves an invest­igation by a Senior Crown Prosecutor, nominated by the Director of Prosecutions and a senior police officer or officers, nominated by the Commissioner of Police service. They report to the Chairman of the Commission, the Attorney-General and the Minister for Police and Emergency Services.

[376] Senate Standing Committee on Constitutional and Legal Affairs, The National Crime Authority Bill 1983, AGPS, Canberra, 1984, para. 8.12. Senators Bolkus and Crowley dissented from the recommendation.

[377] Senate, Hansard, 6 June 1984, p. 2646.

[378] Commonwealth Ombudsman and Defence Force Ombudsman, Annual Reports 1983-84, p. 9.

[379] Evidence, p. 523. See also Evidence, p. 1106, where the Australian Federal Police Association stated: ‘The Commonwealth Ombudsman is a most satisfactory avenue for accountability as far as we are concerned and we would recommend it to the National Crime Authority’.

[380] The Committee's ability to investigate complaints fully will be affected by its access to information from the Authority - a matter addressed in the next chapter.

[381] cf. Inspector-General of Intelligence and Security Act 1986, s. 18.

[382] See paras. 7.32, 7.46 and 7.59 below for the meaning of ‘sensitive information’.

[383] Privacy Act 1988, s. 7(1)(a)(iv).

[384] Senate, Hansard, 22 November 1988, p. 2541.

[385] Evidence, p. 353. See also Evidence, p. 561 (Queensland Council of Civil Liberties); p. 799 (Mr Arthur King); p. 1038 (NSW Council for Civil Liberties); pp. 1531-32 (Mr Mark Findlay).

[386] The statistics set out in Table 3 in chapter 2 above give some indication of the Authority's document holdings.

[387] Evidence, p. 1540.

[388] Evidence, p. 1540.

[389] Evidence, pp. 1544-45. See also Evidence, p. 1731, where the Director of the ABCI questioned why the Authority appeared to be the only law enforcement agency exempt from the operation of the Privacy Act.

[390] Evidence, p. 1543.

[391] See Evidence, p. 1542 where the Privacy Commissioner describes the model.

[392] cf. Australian Federal Police, Annual Report 1989-90, AGPS, Canberra, 1990, pp. 89-90 on the difficulties caused by the Privacy Act for the AFP, and the fact that negotiations were continuing between the Privacy Commissioner and the AFP to resolve these difficulties. See also Privacy Commissioner, Second Annual Report on the Operation of the Privacy Act: for the Period 1 July 1989 to 30 June 1990, pp. 30-31 on the negotiations.

[393] See Privacy Commissioner, Second Annual Report on the Operation of the Privacy Act: for the Period 1 July 1989 to 30 June 1990, pp. 18-19 for a description of the process by which an agency can apply to the Privacy Commissioner for a variation or waiver in relation to the operation of the Privacy Act to the agency concerned.

[394] .        The Privacy Commissioner noted that the Committee might be the means of scrutiny of the Authority on privacy matters: Evidence, p. 1548.

[395] p. 4. See also Evidence, p. 752 (NSW Council for Civil Liberties); submission from the NSW Bar Association, p. 4.

[396] In addition to the views of Mr Moffitt and Mr Griffith quoted below in paragraphs 7.7 and 7.8, see for example, Evidence, p. 348 (Victorian Council for Civil Liberties); p. 1149 (Queensland Bar Association); pp. 1199-1200 (Inspector John Johnston); p. 1339 (Mr Frank Costigan QC); p. 1526-27 (Mr Mark Findlay); submissions from the Tasmania Police, p. 7; Hon. Andrew Peacock MP, pp. 1-2. Sir Max Bingham QC, the present head of the Queensland CJC was a Member of the Authority from 1984 to 1987. On 15 April 1991 he commented: ‘We have been very enthusiastic about avoiding the difficulties that seem to have befallen the NCA, which, to a very large extent, I think are attributable to its inability to take the public into its confidence, because of its legislation, I should say’. (Queensland, Parliamentary Criminal Justice Committee, Minutes of Evidence taken on 15 April 1991 at a public hearing ..., May 1991, p. 10.)

[397] Evidence, 1097.

[398] cf. Initial Evaluation, para. 4.33: ‘the Committee believes that the Authority has perhaps been over-zealous in its application of the secrecy provision in its Act, section 51’.

[399] Evidence, p. 1140. See similarly, Evidence, p. 1151 (Queensland Bar Association).

[400] Gavan Griffith QC, ‘In the matter of the Parliamentary Joint Committee on the National Crime Authority and National Crime Authority Act 1984, sections 51 and 55: Opinion’, 20 August 1990.

[401] Evidence, pp. 358-9, 364, 1393-94 and 1403 (Victorian Council for Civil Liberties); p. 1101 (Australian Federal Police Association); pp. 1141-44 (Hon. Athol Moffitt CMG, QC); pp. 1520‑21 (Mr Mark Findlay).

[402] Evidence, p. 342.

[403] Evidence, p. 1663.

[404] Evidence, p. 416.

[405] Senator the Hon. Don Chipp, whose amendment altered the Bill to provide for the Committee, described the Committee's role:

                   It could be a vehicle to receive complaints from people out­side to the effect that the Authority is not doing its job, has not pursued a particular investigation, or has disreg­arded evidence of criminal behaviour which it should have regarded. Further, if somebody has his or her civil liberties infringed, it could be a vehicle to receive complaints of that sort. (Senate, Hansard, 6 June 1984, p. 2646)

           In supporting the amendment, the Opposition spokesman, Senator the Hon. Peter Durack QC, said during debate on what is now section 55:

                   The purpose of the committee will not be to get into the detail of particular cases. I think it would be most undesirable for the Parliament to turn itself into a grand inquisitor of crime. That is a quite inappropriate role for this Parliament or any committee of this Parliament. The amendment specific­ally provides that it is not to investi­gate particular cases. It will not be second guessing what the Authority has done in a particular case. (ibid., p. 2650)

           Senator the Hon. Gareth Evans QC commented in the same debate:

                   The dangers are overwhelmingly that under the guise of monitoring, under the guise of review, we will have a parliamentary committee exercising all the coercive powers of which parliamentary committees are capable in fact to explore and investigate what it believes is a legitimate investigation, in the public interest, of organised criminal activity. But it will inevitably do that in a way that will have the potential to put at risk and in a quite serious way individual liberties. The only thing that makes the proposed amendment even remotely tolerable is the language of ...[what is now subsection 55(2) of the NCA Act]. (ibid., p. 2651)

[406] Evidence, p. 1391. See similarly the submissions from the Police Federation of Australia and New Zealand, p. 9; the Police Association of South Australia, p. 4.

[407] Evidence, p. 358 (Victorian Council for Civil Liberties); p. 512 (Police Federation of Australia and New Zealand); p. 1341 (Mr Frank Costigan QC). The same amendment was supported in the submission from the Hon. Andrew Peacock MP, p. 2.

[408] Address to the Law Institute of Victoria, 5 February 1991, p. 6.

[409] National Crime Authority (Duties and Powers of Parliamentary Joint Committee) Amendment Bill 1990, clause 4(a). The Bill was introduced into the Senate on 21 December 1990.

[410] See paras. 7.46 and 7.59 below for a more comprehensive definition of what the Committee refers to for convenience as ‘sensitive information’.

[411] National Crime Authority (Powers of Parliamentary Joint Committee) Amendment Bill 1990.

[412] Evidence, p. 382.

[413] Evidence, pp. 764-65, emphasis added.

[414] Evidence, p. 706. See also Evidence, pp. 1066-67 (Law Council of Australia); p. 1612 (Mr David Smith).

[415] See para. 7.59 below on the meaning which the Committee gives to this expression.

[416]  Parliamentary Privileges Act 1987, s. 7.

[417] Resolution agreed to by the House of Representatives on 9 May 1990 and by the Senate the following day. The resolution is similar to those agreed to by previous Parliaments. 

[418] Address to the Law Institute of Victoria, 5 February 1991, p. 5.

[419] Submission, p. 3.

[420] National Crime Authority (Duties and Powers of Parliamentary Joint Committee) Amendment Bill 1990, clause 4. The NCA Act already contains a number of restrictions on the provision of information that are framed in terms of the harm that would or could occur if that information were to be revealed. Subsection 59(5) provides:

                   The Authority shall not furnish to the Inter‑Governmental Committee any matter the disclosure of which to members of the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies and, if the findings of the Authority in an investigation include any such matter, the Authority shall prepare a separate report in relation to the matter and furnish that report to the Commonwealth Minister or Minister of the Crown of the State by whom the relevant reference was made.

           Subsection 60(5) provides that the Authority shall not divulge in a public sitting or bulletin: ‘any matter the disclosure of which to members of the public could prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence’.

           Subsection 61(4) of the NCA Act deals with the Authority's annual report and provides:

                   In any report by the Authority under this section the Authority shall take reasonable care to ensure that the identity of a person is not revealed if to reveal his identity might, having regard to any material appearing in the report, prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

[421] Clause 4, adding s. 55(3) to the NCA Act; emphasis added.

[422] Clause 4, adding s. 55(3) to the NCA Act; emphasis added.

[423] The situation referred to in the text is where the Committee itself does not propose to disclose in camera evidence, only the dissenting Committee member does. The Bill does expressly cover the situation in which the Committee proposes disclosure, the proposal is referred to the Authority, and the Authority responds by saying that the material falls within one of the grounds of objection. In such a case an individual Committee member is bound by the restrictions and procedure in the Bill in relation to that specific disclosure in the same way as the Committee itself.

[424] Evidence, pp. 1694-95.

[425] NCA, Written Answers, July 1991, B2.

[426] Evidence, p. 518 (Police Federation of Australia and New Zealand); pp. 1276-68 (Assistant Commissioner Graham Sinclair). Others told the Committee of their impression that the secrecy provisions of the NCA Act prevented intelligence sharing, without claiming to have been explicitly told this by Authority staff. See for example Evidence, pp. 957, 963, 982 (Commissioner D.A. Hunt); p. 1193 (Tasmania Police); p. 1200 (Inspector John Johnston).

[427] See Evidence, p. 1268, where Assistant Commissioner Graham Sinclair expressed the same view.

[428] Evidence, p. 1105.

[429] pp. 1-2.

[430] NCA, Written Answers, August 1991, E2.

[431] e.g. see Evidence, p. 1199 (Inspector John Johnston); p. 1267 (Assistant Commissioner Graham Sinclair); p. 1612 (Mr David Smith).

[432] p. 37.

[433] C. Mitchell, ‘In open partnership’, Law Institute Journal, March 1991, p. 122.

[434] p. 15, Objective Seven.

[435] p. 15. See similarly, Evidence, p. 1663 (NCA).

[436] NCA Corporate Plan, p. 15.

[437] Evidence, p. 832. See also Evidence, p. 629 where Mr Michael Foley stated his belief that someone from the Authority had contacted the media to enable them to be present when one of the arrests was made. Mr Frank Costigan QC in, ‘Anti-Corruption Authorities in Australia’, text of an address to the Labor Lawyers' Conference in Brisbane on 22 September 1990, p. 11 commented on NCA ‘police arresting people, sometimes at six-o'clock in the morning, coincidentally in the presence of the media...’.

[438] Evidence, p. 1199.

[439] NCA, Written Answers, August 1991, C1. NCA submission, p. 31 notes that the Authority ‘has sought the public's assistance in relation to four of its investigations (Matters Two, Seven, Eight and Nine), having informed it of the general scope and nature of those investigations’.

[440] Evidence, p. 1200.

[441] NCA, Written Answers, August 1991, D1.

[442] Evidence, p. 1075 (Mr Malcolm Kerr, MP); submission from Mr Ian Temby QC, dated 14 February 1991, p. 2. Mr Temby said there had been a total of eleven investigation reports to the NSW Parliament. ICAC commenced operation in March 1989.

[443] p. 11.

[444] No. 369 of 1987. Operation Silo was an investigation into narcotics trafficking arising from Commonwealth Reference No. 3 and New South Wales Reference No. 1 to the Authority.

[445] An Authority interim report, dated April 1989, on a number of fires in Sydney in the period 1979-82 was tabled in the New South Wales Legislative Assembly on 3 August 1989 by the Premier. Some deletions of material of continuing sensitivity were made in the tabled version. The South Australian Attorney-General publicly released the Authority's South Australian Reference No. 2: First Report on 25 January 1990, and subsequently tabled it in the State Parliament on 5 April 1990. In the South Australian Legislative Council on 12 February 1991, the Attorney-General tabled Operation Hound: South Australian Reference No. 2, December 1990, which dealt with allegations of illegal conduct on the part of some South Australian Police officers. In the South Australian Legislative Assembly on 5 March 1991, the Premier tabled Operation Hydra: South Australian Reference No. 2, February 1991. This report dealt with allegations against the State's Attorney-General. The Authority prepared it with a view to Ministerial tabling and made extensive use of code names to protect the identity of individuals.

[446] p. 15.

[447] NCA, Written Answers, August 1991, B4.

[448] Evidence, pp. 745, 1045-46 (NSW Council for Civil Liberties); p. 798 (Mr Arthur King). See also Frank Costigan QC, ‘Anti-Corruption Authorities in Australia’, an address to the Labor Lawyers' Conference in Brisbane on 22 September 1990, p. 12.

[449] Evidence, p. 946 (South Australian Council for Civil Liberties).

[450] Evidence, p. 1670.

[451] NCA Act, s. 25(5).

[452] See Table 3 in chapter 2. Some witnesses have appeared at more than one hearing.

[453] cl. 21(7).

[454] Senate Standing Committee on Constitutional and Legal Affairs, The National Crime Authority Bill 1983, AGPS, Canberra, 1984, para. 6.15.

[455] ibid., para. 6.9.

[456] Senate, Hansard, 10 May 1984, p. 1976.

[457] Initial Evaluation, para. 4.25.

[458] Address to the Law Institute of Victoria, 5 February 1991, p. 8. See also Evidence, p. 1673 (NCA).

[459] Evidence, p. 509 (Police Federation of Australia and New Zealand); p. 772 (Hon. Athol Moffitt CMG, QC); p. 811 (Mr Arthur King); p. 938 (South Australian Council for Civil Liberties); p. 1030 (Hon. K.T. Griffin MP); pp. 1065-66 (Law Council of Australia); submission from Hon. Andrew Peacock MP, p. 3.

[460] Mr Malcolm Kerr MP, submission, p. 6. Section 31 of the Independent Commission Against Corruption Act 1988 requires ICAC hearings to be held in public unless the Commission is satisfied that the public interest requires a private hearing.

[461] Independent Commission Against Corruption Act 1988, s. 13(1)(i).

[462] Evidence, pp. 1082-83.

[463] Submission, p. 2.

[464] Evidence, p. 1120. Sir Max Bingham QC, Chairman of the CJC and Member of the Authority from 1984 to 1987, recently referred to: ‘the fact that our hearings are substantially in public - that the net of secrecy is drawn over only the smallest part of our functions, that is compatible with the proper discharge of our duties. I think all of those things have tended to help us to avoid the criticism that has been levelled at the National Crime Authority.’ (Queensland, Parliamentary Criminal Justice Committee, Minutes of Evidence taken on 15 April 1991 at a public hearing ..., May 1991, p. 10.)

[465] Queensland, Criminal Justice Commission, Submission on Monitoring of the Functions of the Criminal Justice Commission, April 1991, p. 182. See also p. 187 ‘... the Commission is not afflicted with the excessive secrecy required of the NCA, which must hold all of its hearings in private’.

[466] Address to the Law Institute of Victoria, 5 February 1991, p. 4. See also Evidence, pp. 1673-74 (NCA).

[467] p. 3. The Hon. Athol Moffitt CMG, QC in his supplementary submission in January 1991 made a similar point: ‘it is necessary for the NCA at least by some public hearings to reveal what is going on and what it is doing about it. The lack of public confidence should be attempted to be restored by removal of some of the absolute secrecy of the NCA.’

[468] Evidence, pp. 382-83. See similarly Evidence, pp. 353-54 (Victorian Council for Civil Liberties).

[469] Evidence, p. 771.

[470] United Kingdom, Royal Commission on Tribunals of Inquiry 1966, Report of the Commission under the Chairmanship of the Rt. Hon. Lord Justice Salmon, HMSO, London, 1966 (Cmnd.3121), p. 38.

[471] Evidence, p. 773.

[472] Evidence, p. 774. See similarly, Evidence, pp. 1152-53 (Queensland Bar Association).

[473] p. 4.

[474] Other arguments against hearings in public are not relevant because it is not proposed that all hearings be held in public. The proposal is that the Authority have a discretion to hold hearings in public. It can be assumed that the Authority would not elect to hold a hearing in public if that would be detrimental to its interests, for example, by threatening the safety of one of its informants, witnesses or staff, prematurely disclosing the Authority's state of knowledge to the targets of the investigation, or prejudicing the successful prosecution of these targets.

[475] Evidence, pp. 384‑85. See also the submission from Mr Michael Holmes, p. 14: ‘I would not like to see ‘trial by media’ through open hearings’.

[476] Evidence, p. 383.

[477] Evidence, p. 705.

[478] Evidence, p. 543.

[479] Evidence, p. 1675.

[480] See New South Wales, Parliamentary Committee on the ICAC, Inquiry into Commission Procedures and the Rights of Witnesses - First Report - Openness and Secrecy in Inquiries into Organised Crime and Corruption: Questions of Damage to Reputations, November 1990.

[481] ibid., para. 2.6.2.

[482] .        Queensland, Criminal Justice Commission, Submission on Monitoring of the Functions of the Criminal Justice Commission, April 1991, p. 154. The CJC's ‘Procedures for Public Hearings’ are set out on pp. 155-58.

[483] The Authority does possess other significant powers, such as the abilities to obtain search warrants and to seize passports under sections 22 and 24 of the NCA Act. The Committee's inquiry, however, did not receive substantial evidence on special powers other than those relating to the coercive powers under sections 28 and 29 of the NCA Act.

[484] Section 30 of the NCA Act.

[485] See subsections 25(4) and 25(6) of the NCA Act.

[486] A person under a grant of indemnity commits an offence under subsection 30(5) if he/she refuses to answer a question.

[487] See subsection 25(9) of the NCA Act.

[488] See sections 32 and 32A of the NCA Act.

[489] Mr Michael Holmes, submission, p. 3. The South Australia Police Commis­sioner's 4 February 1991 submission to the Committee observed that at the time of the NCA's inception police departments were encountering difficult­ies in tackling organised crime. The submission identified two causes for this: lack of resources and lack of powers: p. 18. See the Authority's Annual Report, 1984-85, p. 6. See also the discussion paper by the Hon. M.J. Young, Special Minister of State, and Senator the Hon. Gareth Evans, Attorney-General, A National Crimes Commission ?, AGPS, Canberra, 1983, paras. 2.1 - 3.3.

[490] Other factors included Commissions' use of specialist personnel with professional expertise and access to more sophisticated intelligence gathering systems: NCA Annual Report, 1984-85, p. 6.

[491] The Authority has observed that sections 28 and 29 of the NCA Act ‘are the two main additional powers which distinguish the Authority from police agencies’: NCA, Annual Report 1989-90, p. 51. The Australian Federal Police Association submission stated that ‘the only real need for the NCA, in its current form, is as a medium to gain access to coercive powers, and as an occasional coordinator of cross-jurisdictional joint investigations’: p. 6. The Hon. Athol Moffitt CMG, QC told the Committee that the Authority was set to be an elite body up because, inter-alia, it could exercise special powers: Evidence, p. 766.

[492] NCA, Annual Report 1984-85, p. 8. Also see the remarks of the Hon. Justice Vincent, Evidence, p. 369.

[493] A leading proponent of this argument has been the Hon. Athol Moffitt CMG, QC. For example see Chapter One, ‘A Society Under Challenge’, in his book A Quarter to Midnight, Angus and Robertson, Sydney, 1985, pp. 3-24. In his ‘Anti-Corruption Authorities in Australia’, an address to the Labor Lawyers' Conference in Brisbane on September 22 1990, Mr Frank Costigan QC discussed the perception held in the 1970s and 1980s that organised crime posed a serious threat to Australian society: pp. 2-5.

[494] The South Australian Council for Civil Liberties noted that ‘intense debate’ centred upon the nature and extent of safeguards needed to govern the coercive powers contained in the NCA Bill (1983): Evidence, p. 936. See also the evidence of Mr John Marsden, Senior Vice-President, Law Society of New South Wales, Evidence, pp. 816-18.

[495] The need to strike this balance was referred to during the inquiry. Dr Allan Perry, Vice-President of the South Australian Council for Civil Liberties said: ‘To what extent, in a free society, should the basic rights of privacy, due process of law and the other associated civil liberties be allowed to frustrate its battle against organised crime and political corruption?’: Evidence, p. 936. See also the views of the Hon. Justice Vincent, Evidence, p. 379.

[496] Mr Robert McAllan, a Detective Superintendent in the Victoria Police, said that one of the Authority's ‘attractions’ included ‘coercive powers and the appropriate carriage of coercive powers’: submission, p. 11. The South Australia Police Association submission, February 4 1991 noted that the department lacked the requisite special powers to investigate organised crime: p. 12. See also Mr R.E. Dixon, Evidence, p. 1558.

[497] Submission, p. 2.

[498] Evidence, p. 1255.

[499] Evidence, p. 510.

[500] Evidence, p. 510. Although the Police Federation of Australia and New Zealand submission contained criticisms of the Authority, it identified the primary value of the Authority to be its inquisitorial powers: p. 4.

[501] Submission, p. 6.

[502] Evidence, p. 401.

[503] Dr Allan Perry, Vice President of the South Australian Council Civil of Liberties, Evidence, p. 932. See also the South Australian Council for Civil Liberties, submission, p. 1; Australian Civil Liberties Union submission, p. 1. The New South Wales Council for Civil Liberties submission, p. 1 was critical of the combination of excessive powers and a lack of effective scrutiny of the Authority.

[504] South Australian Council for Civil Liberties, submission, p. 1. The Australian Civil Liberties Union expressed concern about the ability of permanent commissions to threaten civil liberties: submission, p. 1.

[505] Submission, p. 3.

[506] Evidence, pp. 538-539.

[507] Evidence, p. 539. Mr O'Gorman told the Committee that police support for the Authority's special powers was not a surprise because police wanted these powers taken out of the ‘so-called super crime class and brought down to your ordinary crime class’: Evidence p. 564. The Committee notes that Mr Taylor, representing the New South Wales Police Association, stated that police would like the powers currently held by the Authority: Evidence, p. 643.

[508] Evidence, p. 539.

[509] Evidence, p. 1396. See also Evidence, p. 356.

[510] p. 1.

[511] Evidence, p. 378.

[512] Evidence, p. 378.

[513] Evidence, p. 669.

[514] Evidence, p. 670.

[515] Evidence, p. 369.

[516] Submission, p. 40.

[517] Submission, p. 40.

[518] p. 16.

[519] Submission, p. 16

[520] ibid., p. 17.

[521] Submission, p. 39. The Authority noted that numerous provisions of this type already exist in various Commonwealth and State Acts and that section 74 of the Proceeds of Crime Act 1987 provided a model for the proposed amendment.

[522] Submission, p. 39.

[523] ibid., p. 40.

[524] The IGC submission, p. 22 observed: ‘This, of course, can result in the target of the investigation, or related parties, being ‘tipped-off’ about the NCA's activities and taking measures to conceal relevant evidence’.

[525] p. 22.

[526] See sections 29A, 29B and the additional wording added to section 31 in the Bill (1991). See further the Explanatory Memorandum, pp. 1-2.

[527] On the issue of disclosure see subsection 29A(2) and the exceptions under subsection 29B(2). The Committee notes that section 31 under the Bill requires judicial approval for the issuing of a warrant to secure a person's appearance at a hearing. This safeguard was also suggested to the Commit­tee during it inquiry: Mr McClellan QC, Evidence, p. 679; Commis­sioner Hunt, Evidence, p. 965.

[528] Mr Partridge was employed by the Authority between September 1985 and July 1989: Evidence, p. 602.

[529] Evidence, pp. 604-05.

[530] Evidence, p. 605.

[531] Evidence, p. 607.

[532] Evidence, p. 607. Mr Partridge referred to his experience with the Woodward Royal Commission where the Commission paid for access to documents: Evidence, p. 605.

[533] Evidence, p. 620.

[534] p. 5.

[535] Evidence, p. 1255.

[536] Evidence, p. 1255.

[537] Evidence, pp. 1255-56.

[538] Evidence, p. 1256.

[539] Submission, p. 6.

[540] Evidence, p. 1274.

[541] Evidence, p. 1274.

[542] Submission, p. 5.

[543] Evidence, p. 1255.

[544] Evidence, pp. 526-27.

[545] Evidence, p. 435v (1988 submission, p. 8).

[546] Evidence, p. 435v (1988 submission, p. 8).

[547] Subsection 30(6) of the NCA Act. Upon recommendation from the Authority the Commonwealth Director of Public Prosecutions may grant protection to witnesses appearing before the Authority who might otherwise incriminate themselves in answering questions. Similar provisions exist in the State underpinning legislation in relation to offences against State laws, for example section 19 of the Victorian, New South Wales and South Australian Acts: NCA, Annual Report 1989-90, p. 35.

[548] Submission, p. 3.

[549] Submission, p. 23.

[550] Submission, pp. 23-24.

[551] Evidence, p. 942.

[552] Evidence, p. 943.

[553] Evidence, p. 944; p. 946.

[554] Evidence, p. 942.

[555] Evidence, p. 379.

[556] Submission, p. 11.

[557] Evidence, p. 362.

[558] pp. 4-5.

[559] Evidence, pp. 1397-98.

[560] Submission, p. 17.

[561] Submission, p. 17.

[562] ‘The Role of the National Crime Authority in Australian Law Enforce­ment’, text of a speech delivered at Queen's Inn, University of Melbourne, 8 August 1989, p. 9.

[563] Evidence, p. 1677.

[564] Evidence, p. 681 (Mr Peter McClellan QC).

[565] Evidence, p. 391.

[566] Evidence, p. 391.

[567] The ASC has recently sought to amend the operation of immunities it can grant when exercising its power to override the privilege against self incrimination (see subsection 68(3) of the ASC Act and subsection 597(12) of the Corporations Law). The submissions on this matter to the Joint Parliamentary Committee on Corporations and Securities inquiry into the ASC proposal indicate that even in non-criminal areas the abrogation of the privilege remains highly controversial. See, for example, the submission from the Professional Development Committee of the Young Lawyers' Section of the Law Institute of Victoria, pp. 2-3; p. 10.

           The legislature does have the power to abrogate the privilege, but there is a presumption that, in the absence of explicit intent, it does not intend to alter so important a principle of common law. See Gibbs CJ in Sorby v. The Commonwealth of Australia (1983) 46 ALR 237 at p. 241.

[568] Evidence, p. 975.

[569] Evidence, p. 540.

[570] Evidence, p. 680.

[571] NCA, Annual Report 1989-90, pp. 30-31.

[572] Third Report, pp. 10-11, footnote omitted.

[573] Third Report, p. 11.

[574] Third Report, p. 12.

[575] Third Report, p. 12.

[576] Submission, p. 5.

[577] Submission, pp. 4-5.

[578] Evidence, pp. 1183-84.

[579] Evidence, p. 1184.

[580] Submission, p. 3.

[581] Submission, p. 4.

[582] Evidence, p. 352.

[583] Evidence, pp. 540-41.

[584] Evidence, p. 540. Mr O'Gorman cited the Fitzgerald Report in Queensland and the 1981 report of the United Kingdom Royal Commission on Criminal Procedure as support for the separation of investigation and prosecution functions: Evidence, pp. 540-41.

[585] NCA, Annual Report 1989-90, p. 13.

[586] Evidence, pp. 1670-71.

[587] It was suggested to the Committee that the Proceeds of Crime Act be amended to reverse the onus of proof and oblige a person to explain the origin of certain income or possessions. See for example the Authority submission, p. 43.

[588] Submission, p. 6.

[589] Mr Moffitt proposed that subsections 11(1) and 12(2) be amended to make such powers and functions express: submission, p. 4.

[590] Submission, p. 4. Mr Moffitt also noted that reform proposals by the Authority would be designed to counter the efforts of organised crime to avoid the effects of the legislation: submission, p. 7.

[591] Also see the view of Commissioner Hunt: Evidence, pp. 973-74.

[592] NCA, Annual Report 1987-88, pp. 25-26. See also NCA, Annual Report 1989-90, pp. 32-33.

[593] See NCA, Annual Report 1985-86, pp. 40-41.

[594] p. 43.

[595] Submission, pp. 1-3.

[596] Evidence, pp. 768-69.

[597] Evidence, p. 784.

[598] In its Annual Report for 1989-90, pp. 23-24 the Authority stated:

                   The special powers conferred by the issue of a reference are not always necessary, particularly in the early stages of investigation, and the Authority does not seek a reference unless the special powers are clearly needed.

[599] Under the NCA Act, the Authority is unable to independently initiate its own special investigations. In 1984, the Senate Standing Committee on Constitutional and Legal Affairs raised the potential for political interference in the Authority's work where a reference might be withdrawn for political reasons. See The National Crime Authority Bill 1983, Canberra, AGPS, 1984, paras. 4.16-4.17.

[600] Evidence, p. 762. Mr Moffitt also identified the ‘extreme provisions designed to ensure absolute secrecy’ as another problem in this regard: Evidence, p. 762.

[601] Evidence, p. 762. The issue of accountability, including public accountability, is dealt with in chapter 7 of this report.

[602] Submission, p. 22.

[603] Evidence, p. 763.

[604] p. 3.

[605] Evidence, p. 935.

[606] Evidence, p. 435s (1988 submission, p. 5).

[607] Evidence, p. 435t (1988 submission, p. 6).

[608] Evidence, p. 435v (1988 submission, p. 8).

[609] Evidence, p. 426.

[610] Evidence, pp. 515-16.

[611] NCA, Annual Report 1989-90, p. 96.

[612] Interview with Pilita Clark, Sydney Morning Herald, 30 March 1991.

[613] ibid.

[614] ibid.

[615] ibid.

[616] NCA, Annual Report 1989-90, p. 6. The 12th reference, concerning money laundering has since been granted to the Authority.

[617] Evidence, pp. 379-80. See further the views expressed by Mr Henry Rogers, Evidence, p. 399.

[618] The Senate Standing Committee on Constitutional and Legal Affairs stated in 1984: ‘However, the Committee cautions that coercive powers should only be exercisable against persons in those cases where a term of reference has been granted to the Authority with the concurrence of the Inter-Governmental Committee’: Report on the National Crime Authority Bill 1983, AGPS, Canberra, 1984, para. 5.2.

[619] Submission, p. 1.

[620] Submission, p. 1. Mr Dixon's submission also contained specific criticisms of certain types of references including those that were ‘open investigations’ into ethnic groups involvement in organised crime or ‘types of crimes’ which were too wide: submission, p. 2.

[621] Meeting between the Committee and Mr McAulay, 3 July 1990, transcript, pp. 64-65; p. 73.

[622] p. 4. The submission, p. 9 identified operation Iliad, passed to the NCA by the AFP, and said ‘They [the Authority] have abused the reference and operated it purely as a mechanism for getting results, the type of results that the Authority was not set up to do’. Mr R.E. Dixon also identified problems with broadly drafted terms of reference: submission, p. 3.

[623] NCA, Written Answers, July 1991, B5.

[624] NCA, Written Answers, July 1991, B5. The Committee notes that the Authority submission stated (p. 39) that the Authority had received a number of conflicting legal opinions concerning the validity of references and that some uncertainty remained in this regard. The submission stated that the Authority was considering seeking an amendment to subsections 13(2) and 14(2) to clarify this issue.

[625] The Age, August 30, 1991.

[626] Evidence, pp. 546-47.

[627] See Evidence, p. 1349; p. 686; pp. 1414-15. See also the personal view of Mr Short, President of the Queensland Law Society, Evidence, p. 587.

[628] Evidence, p. 1687.

[629] Report on the National Crime Authority Bill 1983, AGPS, Canberra, 1984, paras. 7.1-7.3.

[630] The Police Federation of Australia and New Zealand submission, pp. 8-9 recommended that a new subsection 7(11) be drafted and amendments made to section 25 to include ‘appointed judge’. For examples of powers under Part II, Division Three of the NCA Act, see subsections 39A and 45(5).

[631] Submission, p. 3.

[632] Submission, p. 3. See also Evidence, p. 960. Mr Robert McAllan's submission, pp. 7-8 outlined the requirements of investigations and concluded with the observation that ‘lawyers should practise the law, ... and investigators should investigate’.

[633] Submission, p. 8.

[634] ibid., p. 9.

[635] Submission, p. 20.

[636] para. 4.13.

[637] para. 4.15.

[638] para. 4.14.

[639] Note the greater role of senior police in the Consultative Committee and Secretariat established under Future Directions. See Future Directions, pp. 1-3; see Evidence, pp. 1650-54.

[640] Evidence, pp. 1652-53.

[641] Submission, p. 20.

[642] Future Directions, pp. 4-5.

[643] p. 3; p. 8.

[644] Mr Horman suggested that this membership should be for a non-hearing purpose: submission, p. 2.

[645] Mr Hunt described the Authority's decision to select Mr William Horman to work with the Authority as a step in the right direction: Evidence, p. 961.

[646] para. 4.17.

[647] para. 4.16.

[648] p. 2.

[649] Submission, p. 9. Mr Holmes argued that police on secondment to the Authority had ‘divided loyalties’ and that the Authority would be better off with its own investigators with powers of investigation and arrest: submission, pp. 21-22.

[650] Justice Phillips stated on this point ‘All my experience has been to the contrary’: Evidence, p. 1683.

[651] Submission, p. 27.

[652] Evidence, p. 1668. See also NCA submission, p. 42 and Future Directions, p. 1.

[653] Submission, p. 38.

[654] (1989) 50 South Australian State Reports 495-502.

[655] ibid., p. 499.

[656] See sections 49 and 58 of the NCA Act.

[657] Submission, p. 41. In the latter situation they are usually sworn in as Special Constables under relevant Commonwealth and State laws. A Special Constable enjoys the same powers, authorities, advantages and immunities as a duly appointed constable by virtue of the common law or legislation.

[658] p. 42.

[659] p. 42.

[660] NCA submission, p. 42.

[661] Evidence, pp. 1263-64.

[662] Evidence, p. 1265.

[663] Mr Sinclair said that in the Melbourne Office of the Authority there had been a constant need to juggle AFP investigators so that Commonwealth related warrants could be executed by the various investigation teams: Evidence, p. 1264. See also Evidence, pp. 1265-66.

[664] .        p. 42.

[665] NCA Act, s.55(1)(a) and (b).

[666] See the majority's Report, para. 7.6 for a list of the opinions.

[667] See the quotations and references in paras. 7.7 and 7.8 of the majority's Report.

[668] See para. 7.29 of the majority's Report.

[669] Majority Report, para. 7.37.

[670] National Crime Authority (Duties and Powers of Parliamentary Joint Committee) Amendment Bill 1990. The Bill was introduced into the Senate on 21 December 1990.

[671] Majority Report, para. 6.77.

[672] See for example, Evidence, p. 1116 (Mr Peter Beattie); pp. 1389-90 (Victorian Council for Civil Liberties).

[673] Majority Report, para. 7.57.

[674] Majority Report, para. 7.59.

[675] Majority Report, para. 7.60.

[676] .        Majority Report, para. 7.55.