Powers and Responsibilities:
Reforming NSW Criminal Investigation Law
Thesis submitted for the degree of Doctor of Philosophy Faculty of Law, University of New South Wales
Karl Alderson 10 December 2001
TABLE OF CONTENTS
ACKNOWLEDGMENTS 3
ABBREVIATIONS 6
1. INTRODUCTION 7
2. THE FREE BRITISH WAY 32
3. THE IDEA OF REFORM 88
4. THE REALITY OF RESISTANCE 155
5. DRUG WAR 192
6. VERBALS 253
7. PUSHING POWERS 285
8. SEEKING SAFEGUARDS 331
9. INSIDE THE STATE 387
FULL ABSTRACT 404
BIBLIOGRAPHY 420
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Acknowledgments
I wish to express my appreciation to those whose insight and assistance made the completion of this thesis possible.
During the period I have worked on this thesis, I have been an employee of the Criminal Justice Branch (later Criminal Law Branch) of the Commonwealth Attorney-General’s Department. My supervisors have allowed me several periods of extended leave, and my colleagues have carried a considerable burden of additional work in covering for my absences. The professionalism, enthusiasm, thoughtfulness and intelligence of these colleagues has been a constant source of inspiration and insight. They have given me an incredible opportunity to work at the heart of federal criminal justice policy for the better part of a decade, and I have learned a lot from all of them.
Among those to whom my thanks are due are Sarah Chidgey, Geoff Dabb, Andrew Egan, Maggie Jackson, Laurel Johnson, Geoff McDonald, Ricky Nolan, Suesan Sellick, Geoff Skillen and Anastasia Tearne. I should add that neither these officers, nor anyone else in the Attorney-General’s Department, saw or vetted any part of this thesis prior to submission, and nor did I discuss the specific content with them. The views expressed are mine alone, and in no way reflect those of the Department, the Commonwealth, or anyone else.
A number of people very kindly made themselves available for interview concerning the events described in the thesis: Tim Anderson, David Brown, Ken Buckley, Brett Collins, the Hon Justice John Dowd AO, the Hon Justice Michael Kirby AC CMG, Lloyd Taylor and the Hon Frank Walker QC. I thank them for their time and their insights. David Brown, Ken Buckley, Lloyd Taylor and the Hon Frank Walker QC also gave or lent me copies of relevant documents. I received invaluable assistance at various points from staff at the Australian Law 3
Reform Commission, NSW Law Reform Commission, Australian Archives, NSW State Archives, NSW Police Service library and NSW Police Association. Justice McClemens, now deceased, left behind a valuable set of personal papers with the NSW Archives, to which the NSW Supreme Court kindly allowed me access. The NSW Branch of the Australian Labor Party allowed me to examine non-public access material in their collection of archives in the Mitchell Library.
I may never have even started the thesis without the enthusiasm and interest shown by Professor Ian Cameron when I first approached the University of NSW. The suggestions and encouragement of the various members of my postgraduate review panels, including Mark Aronson and Jill Hunter, were instrumental in keeping me going. I also thank Kerrie Daley and others for their administrative assistance at the University. Three good friends, Olivia Coldrey, Chris Dobson and Jackie Quang, took turns to accommodate me on my frequent visits to Sydney in the period from 1996 to 1998. I thank each of them.
Simon Bronitt of the Australian National University very kindly reviewed a number of draft chapters and made very valuable suggestions. I have also benefited from my discussions with him on these topics over the years. I also thank Professor John McMillan, whose guidance as my honours supervisor has informed my whole approach to scholarship.
Professor David Dixon’s contribution, as the supervisor of this thesis, is impossible to overstate. His knowledge of the sociology of law, the law of criminal investigation, and policing practice, is phenomenal. This is plain for all to see in the influential works that he has published. His expertise was only part of his contribution. He continually encouraged me to think about different approaches, kept me on track, and helped me believe that it could all come together. He was as a good a supervisor as I could possibly have hoped to have.
My parents and sister Jane provided considerable emotional support for this endeavour, and a home for the first year of the undertaking. Finally, I wish to 4
express profound gratitude to my fiance Michelle Fletcher, who was incredibly emotionally supportive, as well as providing me with a standard of living well beyond my own means during my period of full time study! She encouraged me from to start to finish, showing remarkable forbearance as this project intruded into an ever increasing number of evenings, weekends and holidays.
It goes without saying that no flaw or error in this thesis can be attributed to any of these people. There would have been many more flaws and errors without them.
Karl Alderson Canberra 10 December 2001
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Abbreviations
Abbreviations for newspaper and journal titles used in footnotes are identified in the bibliography. Other abbreviations appearing in text and footnotes are as follows.
ACT Australian Capital Territory ALRC Australian Law Reform Commission Cth Commonwealth LA NSW Legislative Assembly Debates (Hansard) LC NSW Legislative Counsel Debates (Hansard) MLA Member of the (NSW) Legislative Assembly MLC Member of the (NSW) Legislative Council NRMA National Roads and Motorists’ Association NSW New South Wales NT Northern Territory NZ New Zealand QC Queen’s Counsel Qld Queensland SA South Australia UK United Kingdom v volume Vic Victoria
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1. INTRODUCTION
This thesis examines the forces that have shaped reform of criminal investigation legislation in New South Wales (‘NSW’) since 1945. This opening chapter explains the scope of each of these concepts in turn: ‘reform’, ‘criminal investigation’, ‘legislation’, ‘NSW’, ‘since 1945’. The chapter goes on to outline the approach taken to explaining the forces that have influenced the course of reform, including the key theoretical insights from existing literature that are employed to better understand debate and reform. The chapter concludes by outlining the personal experience that influenced the approach taken in this thesis, and by outlining the structure and subject matter of the remaining chapters.
The Subject Matter
At the heart of this thesis is the story of the dramatic changes to criminal investigation legislation in NSW since 1945. In that period, police in NSW have gained many new powers. These include powers to install and use listening, video surveillance and tracking devices,1 to tap telephones,2 to obtain blood and saliva samples,3 to breath test motorists,4 to detain a suspect for questioning,5 to conduct
1 Originally enacted in the Listening Devices Act 1969. Subsequently replaced by Listening Devices Act 1984. All legislation referred to is NSW legislation, unless otherwise specified (for example, ‘Cth’, ‘Vic’, Qld’). 2 Telecommunications (Interception) (New South Wales) Act 1987 and Telecommunications (Interception) Act 1979 (Cth). 3 Crimes (Forensic Procedures) Act 2000. 4 Originally enacted in the Motor Traffic (Amendment) Act 1968. Subsequently replaced by provisions in the Road Transport (Safety and Traffic Management) Act 1999. 5 Originally enacted in the Crimes Amendment (Detention After Arrest) Act 1997. Subsequently provided for in Part 9 of the Law Enforcement (Powers and Responsibilities) Bill 2001.
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undercover operations,6 to use assumed identities,7 and to arrange internal scans of a person.8
The period since 1945 has also seen the emergence of new agencies with a key role in investigating serious offences against NSW law, including the National Crime Authority,9 NSW Crime Commission,10 and Independent Commission Against Corruption.11 These agencies have their own powers, including to require production of documents, and to conduct hearings and require answers to questions under threat of criminal penalty (see chapter 5).
Nor are these extra powers all of the story. Provision for provision, most of the criminal investigation legislation enacted has been about regulating the conduct of law enforcement officers, and restricting the availability and use of powers (see chapters 3 and 8). In some cases, traditional kinds of limitation have been employed in new areas. For example, the longstanding requirement for an independently issued warrant for search and seizure has been extended to listening devices.12 In addition, many new kinds of accountability measure, safeguard, and restriction, have been introduced into criminal investigation law, including reporting and recording requirements, mandatory internal decision making processes, and statutory reviews. These are discussed in chapters 3 and 8 in particular. In 2001, it was proposed that many police powers and the rules governing the exercise of those powers be consolidated in a single piece of legislation, released for consultation as the Law Enforcement (Powers and Responsibilities) Bill 2001.
6 Law Enforcement (Controlled Operations) Act 1997. 7 Law Enforcement and National Security (Assumed Identities) Act 1998. 8 Police Powers (Internally Concealed Drugs) Act 2001. 9 National Crime Authority (State Provisions) Act 1984 and National Crime Authority Act 1984 (Cth). At the time of writing, the Federal Government was pursuing proposals to fold the National Crime Authority into the Australian Federal Police: Liberal Party (2001: 5-6). 10 New South Wales Crime Commission Act 1985 (originally enacted as the State Drug Crime Commission Act 1985). 11 Independent Commission Against Corruption Act 1988. 12 Listening Devices Act 1984, Part IV. 8
Proposals for reform of the law of criminal investigation have been debated in many contexts, including Royal Commissions, Law Reform Commission inquiries, expert committee deliberations, and Departmental reviews. Proposals have been promoted, resisted and debated by Police Commissioners, the Police Association, the Council for Civil Liberties, the Prisoners’ Action Group/ Justice Action, lawyers, judges and others.
It is obviously not possible to recount anything like the ‘complete’ story of debate and reform. This account focuses on key events and themes. Selection has been consciously influenced by the other objectives mentioned below: explaining reform, building on the literature, and highlighting points relevant to future policy development. Certain topics have been singled out for more detailed discussion than others. One is the debate about roadside testing of motorists to detect ‘drink driving’ (chapter 2). There was extensive debate about reform in this area from the 1940s to the 1960s, at a time when there was very little discussion of other police powers of criminal investigation. Accordingly, this debate offers one of the best insights into thinking about police powers in this period, helping to shed light on ‘non-reform’ in other areas.
Another topic to receive close attention is the content and impact of the law reform reports of the mid-1970s, including those of the Mitchell Committee in South Australia, the Australian Law Reform Commission (‘ALRC’), the Beach Inquiry in Victoria and the Lucas Committee in Queensland (chapter 3).13 These marked a turning point in thinking about criminal investigation law Australia-wide, including in NSW. For many years thereafter, much of the debate about criminal investigation law centred on the recommendations in these reports.
A third topic to receive close attention is the war against drugs (chapter 5). This took place in an archetypal ‘law and order’ context. There was a series of Royal Commissions in the late 1970s and early 1980s directed to the problems of drug
13 Mitchell Committee (1974), ALRC (1975a), Beach (1978), Lucas Committee (1977). 9
use and organised crime.14 The recommendations in these reports were a significant impetus for the creation of the National Crime Authority, on which the NSW Crime Commission was modelled. Drug law enforcement has continued to influence the shaping of police powers to recent times, illustrated by the enactment of the Police Powers (Drug Premises) Act 2001 and the Police Powers (Internally Concealed Drugs) Act 2001.
A fourth topic singled out for specific focus has been the regulation of detention for questioning and the obtaining of confessions. This has been a vexed issue, with serious deficiencies in the law and serious concerns about police practices. It has been the flag-ship issue in a half century of debate about police powers of criminal investigation. It is central to the account in chapters 2, 3, 4, 6 and 7.
The historical account has been most selective in relation to the most recent period, since the mid-1980s (chapters 7 and 8). The sheer volume of legislation, reports and debate has necessitated an emphasis on a few themes. No apology is made for this. It is the process of drawing together such themes from a larger pool of material that provides the focus essential to both theoretical insight and policy guidance.
The breadth of this thesis has made selecting its boundaries particularly important. The four major limitations on the topic are: that it is confined to (i) legislative reform, proposals and debates about such reform, and explaining the absence of such reform, of (ii) criminal investigation law (iii) in NSW, with comparisons with other jurisdictions (iv) since 1945.
The focus is on legislative reform, rather than on case law or guidelines.15 One reason for this is that legislation is, in formal terms at least, the ultimate controlling authority for police conduct, overriding case law or guidelines in the event of
14 Sackville, Hackett and Nies (1979), Woodward (1979), Williams (1980), Stewart (1983), Costigan (1984). 15 For aspects of the history of police guidelines in Australia, see Finnane (1989; 1994: ch 8). 10
conflict. As McManus has put it, ‘Legislation is an interesting object of study because it is the most public, formal, accountable and potent method of mobilizing state power’.16 Unlike the United States and an increasing number of other countries,17 constitutional and quasi-constitutional limitations in this area are minimal.18 Australia has no bill of rights.
Legislation is also the focus of this account because the notable trend in criminal investigation law in recent decades has been towards more extensive legislative prescription. That said, key court decisions impacting on police powers and discretions, notably Bunning v Cross,19 McKinney v R,20 Williams v R,21 Ridgeway v R,22 and Fernando23 are examined in later chapters. Each contributed to pressure for legislation.
The term ‘reform’ is used to describe any proposed or actual change to criminal investigation legislation. It has not been reserved for those that are ‘beneficial’ or ‘progressive’. For any legislative change to occur, someone must consider it beneficial in some sense. To label as ‘reform’ only those measures that I might consider were desirable would be trite and superficial, even if it were possible to credibly give a definitive verdict on the often complex, subtle and changing impacts of a given legislative amendment. It would also introduce a fundamental bias that would distort the attempt to better understand the process of legislative change.
The concept of ‘criminal investigation law’ has not been approached from an unduly technical stand point. The term has been used to encompass laws that are
16 McManus (1978: 201). 17 For example: Britain - Human Rights Act 1998 (UK), European Convention on Human Rights and Fundamental Freedoms; Canada - Charter of Rights; New Zealand - Bill of Rights Act 1990 (NZ). 18 On the questioning of rights arising under the Australian Constitution, see generally Williams (1999). 19 (1978) 141 CLR 54. 20 (1991) 171 CLR 468. 21 (1986) 161 CLR 278. 22 (1995) 184 CLR 19. 23 Fernando v Commissioner of Police (1995) 36 NSWLR 567. 11
designed to directly assist law enforcement officers to identify those responsible for criminal offences and to gain evidence that would facilitate a prosecution. There is a fair degree of consistency in the kinds of laws referred to in reports, texts and articles on criminal investigation law.24 Key categories include powers to search persons and premises, powers to apprehend and detain suspects, to take blood, saliva and other forensic samples, to use listening and telecommunications interception devices, and (more recently) to conduct undercover operations and use assumed identities.
One inclusion that might be questioned is breath testing and blood testing powers to determine whether a person is driving under the influence of alcohol or another drug. These ‘criminal investigation powers’ are atypical in some respects. Drink driving is still seen by some as social misconduct rather than as a crime. Random testing requires no prior suspicion of an offence, generally a key prerequisite for the exercise of other powers. There is usually no real ‘investigation’ before testing powers are invoked. Nonetheless, these powers fall comfortably within the definition of criminal investigation law offered above. Breath testing and blood testing are designed to identify those driving under the influence, which is a very serious offence, and to provide evidence of that offence. Supporters of tougher measures against drink driving, including breath and blood testing, have worked hard to ensure that drink driving is understood to be a serious crime,25 for which significant investigatory powers are warranted.
The law of criminal investigation includes a number of elements. First, there are formal legal powers, such as the legal authority to enter premises for the purpose of conducting a search. Secondly, there are the rules governing the exercise of those powers, for example the requirement to show an occupier a copy of a search
24 See, for example, Leaver (1997), Sallmann and Willis (1984: 15), ALRC (1975a). 25 See, for example, the following statements: ‘It is not an accident, it is a crime.’: LC v 3/105 at 186 (Hon T S McKay, 15 August 1973). ‘Death resulting from drunken driving cannot and must not be swept away under the euphemistic term of traffic accident. Undeniably, it is unpremeditated murder. It must necessarily receive attention as the crime that it is’: LC v 3/141 at 632 (Hon D Freeman, 22 November 1978). See also the discussion on the seriousness of the offence in
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warrant. Thirdly, there are offences that have the effect of giving an officer legal authority. For example, because it is an offence for a person to fail to reveal their name and address to police in certain circumstances, in those circumstances police effectively have the power to demand those details. Fourthly, evidential rules impact on the effective powers of police. The right to silence is a good example. A court or prosecutor generally cannot draw an adverse inference from a failure to answer police questions. In those circumstances, police effectively have no authority to require answers to questions. Evidential rules can also influence police conduct. Provisions restricting the admissibility of unlawfully obtained evidence, for example, may deter the use of unlawful means to obtain evidence.26
Investigatory powers are available not only to police, but also to a whole range of enforcement and regulatory agencies. The proliferation of such agencies and their powers is a significant development in its own right. However, the focus here is on the NSW Police Service and, to a lesser extent, the National Crime Authority, the NSW Crime Commission, and the Independent Commission Against Corruption. The emergence, functions and powers of the latter three bodies is considered in chapter 5; their ongoing impact on the law reform debate is considered in chapter 7.
Public order powers have not been examined. These ‘powers’ centre on public nuisance and disorder offences that police can use as a basis to make (or threaten) an arrest and therefore regulate the use of and behaviour in public space.27 They can extend from trivial nuisance to control of riots, but unlike criminal investigation laws, they are primarily designed to be used in preventing or terminating crime and disorder rather than to obtain evidence for a possible prosecution. The debate about public order laws has centred on different kinds of issues to the criminal investigation law debate, and that history is deserving of full
Bunning v Cross (1978) 141 CLR 54 at 80 per Stephen and Aickin JJ; and Finnane (1994: 102) on the paradigm of the ‘killer drunk’. 26 See, for example, Evidence Act 1995, section 127 and Evidence Act 1995 (Cth), section 127. 27 Bittner (1990: ch 2), Dixon (1997: 78-80), Brown, Farrier, Egger and McNamara (2001: 942), NSW Anti-Discrimination Board (1982: vi-vii, 104-6), Travis (1983). 13
length treatment elsewhere.28 Nevertheless, the public order debate comes into this account at various points, in particular because it has been the site of many significant debates and controversies about law and order and policing. The ‘zero tolerance’ debate has also blurred the boundaries between public order and the investigation of crime. Robust order maintenance (for example, regular stops and searches on the streets) is said to be a key tool for detecting crime.29
While remaining chapters focus on events in NSW, the proliferation of criminal investigation legislation is a trend that has been experienced in many other jurisdictions, including the other States and Territories, the Commonwealth, and in other common law countries. The interplay between developments in NSW and these other jurisdictions is itself a key theme of the thesis. Accordingly, considerable attention has been given in later chapters to developments outside NSW, both because these have impacted on events in NSW, and also for comparative purposes.
The year 1945 has been selected as a starting point for the account because examination of the period from 1945 to 1968 offers an opportunity to compare a long period of non-reform with a later long period of reform. In addition, the long- running debate about chemical testing of motorists got under way in the late 1940s. The period since 1945 is also well accepted as a discrete historical era.
Explaining Reform and Non-Reform
This section outlines the approach taken in later chapters to explaining the forces that have influenced the course of reform, including the absence of reform in various contexts. In doing so, it highlights some key theoretical insights from existing literature that are employed to better understand debate and reform.
28 For aspects of the history of public order law in NSW, see Andrews (1979), Egger, Cornish and Heilpern (1983), Egger and Findlay (1988), Brown, Ferrier, Egger and McNamara (2001: ch 8). 29 Wilson and Kelling (1982). 14
Studies that seek to explain the forces that have influenced legislative reform are part of a recognised genre, known as ‘law making’ or ‘emergence’ studies. The key theoretical insights offered by this genre, as well as its shortcomings, have been well summarised elsewhere.30 Recitation would add little; but it is worth outlining how this study seeks to build on the work that has already been done.
First, a very large proportion of emergence studies have focused on offences and related prohibitions directed at ‘vice’ crime;31 or on laws impacting directly on the financial interests of business owners.32 These categories are not necessarily typical of other categories of law, including criminal investigation law. There are therefore certain idiosyncrasies in this literature. The important distinction between the ‘structural foundations of the law and the triggering events associated with a law’, highlighted by Galliher and others, is an example.33 Galliher’s starting point was to reconcile competing explanations of legal change. For example, Becker had attributed the American Marihuana Tax Act of 1937 to lobbying by the director of the Federal Bureau of Narcotics, whereas Musto had emphasised the influence of hostility toward ethnic minorities.34
Galliher identified these as examples of two different approaches. Ethnic tensions were an example of the ‘structural foundations’ of law, meaning ‘the economic, racial or religious heterogeneity of a society and the consequent actual or potential social conflict’. The lobbying efforts by the Bureau director were an example of ‘triggering events’, meaning ‘the tactics, power and motivations of legislative interest groups who sponsor or oppose the legislation’.35
30 Bottomley and Parker (1997: ch 8), Dixon (1991b: 17-32). 31 This point has been made by Galliher (1980: 311), who tabulated studies to that time; and Dixon (1991b: 30). 32 For example, Carson (1974), Carson (1985), Carson and Henenberg (1988). 33 Galliher (1980: 304), Galliher and Basilick (1979). 34 Galliher (1980: 306), citing Becker (1963) and Musto (1973). 35 Galliher (1980: 304). 15
In seeking to understand criminal investigation law reform in NSW, the terms ‘structural foundation’ and ‘triggering event’ are a more useful pointer, left undefined, than if given the specific meanings assigned by Galliher. The idea of structural foundations highlights the importance of focusing not only on the words and deeds of those debating reform, but on the long term, unconscious, background influences that stimulate, or restrain, that debate. In the specific context of criminal investigation law reform in NSW, many of these structural forces have had little to do with ‘the economic, racial or religious heterogeneity’ of NSW society. The changing relationship between elected governments and the police organisation is an example.
The importance of identifying these long term, unconscious, background influences is one of the reasons that a large number of reforms are examined in this thesis. If each reform is considered in isolation, the specific lobbying and political manoeuvres surrounding that reform seem all important. Structural explanations can drop out of the picture altogether, since as Galliher points out the ‘structural foundations of a law are not obvious from the motivations of legislative supporters’.36 By stepping back, and trying to explain why lobbying and manoeuvres took place at one time but not at another, longer term structural influences become more apparent.
It is therefore important to reject the notion that the study of law reform should focus only on ‘critical events, the points at which laws are produced which provide a new approach to a problem’.37 Tomasic correctly points out that this would guarantee that significant change by incremental steps would be overlooked.38 The reform of police powers of criminal investigation is NSW is just such a case of a major change of direction occurring by incremental steps.
36 Galliher (1980: 306, 312). 37 Chambliss (1979: 149). 38 Tomasic (1985: 104). 16
While the task of identifying structural considerations is both challenging and rewarding, triggering events are also important. A complete picture has to reflect the significant role of individual and group effort (whether in pursuit of idealistic or material goals), accident, coincidence and expediency. It is fair to say that the ‘real goal of any science is to discern meaningful patterns that explain things’,39 but the accurate presentation of ‘patterns’ includes identifying their limitations. Even in a story as big as this one, the efforts of particular individuals stand out: Dr Frank Hansman’s dogged pursuit of testing powers to combat drunken driving (chapter 2); the campaign by the Prisoners’ Action Group and others against police verbals (chapter 6); and Lloyd Taylor’s efforts at the NSW Police Association to secure extra powers (chapter 7).
It is also important to recognise that structures and triggers are not independent of each other. Structure does not simply set boundaries within which triggers then operate.40 For example, judicial complicity in permitting detention of suspects was a key structural factor narrowing the ‘space’ for activists to enliven debate about the defects in the law. This was linked to a second structural consideration, namely the interest of police in preserving the status quo. As far as NSW courts went, this structural reality never changed; but the actions of the High Court in seeking to curtail police practices provided a trigger that severed the link between the NSW judicial approach and NSW police complacency, opening up new possibilities for reform (see chapters 6 and 8). The relationship between structures and triggers is dynamic and interactive.
One important omission from Galliher’s ‘structural foundations’/ ‘triggering events’ dichotomy is a place for the influence of ideas. There has, however, been close attention to the importance of ideas in the criminal justice debate in Australia. A notable example is the analysis by Hogg and Brown of the
39 Harper (1993: 63). 40 Dixon (1991b: 26-27). 17
constraining influence of ‘law and order’ common sense on understandings of criminal justice.41 This is taken up in chapter 7.
The importance of ideas is closely related to the importance of language. The language used in debate also provides insights in the context in which debate is occurring. Rock provides an example:
Something can always be achieved by rhetoric. Policy making occupies a world of paper and words, of arguments and efforts to persuade… Confronted by a misalignment between formal responsibility and aspiration, between the new idea and its environment, officials can improvise, stretching arguments about the limits and terms of mandates and precedents to accommodate the new, discovering and enhancing useful consistencies, differences and discontinuities.42
These comments are equally applicable to those outside the bureaucracy seeking to influence the course of policy development. By examining the kinds of ideas and words put forward in debate, we can learn much about the practical and political context in which that debate takes place, and the constraints to reform.
Ideas and language are also important to the pursuit of symbolic goals. Gusfield’s Symbolic Crusade highlighted the way in which legislative reform may be pursued for the symbolic objective of securing the enactment of the legislation, as an assertion of status and legitimacy, rather than for the outcome that enforcement of the legislation would bring. Later accounts have underlined the subtle and complex interplay between symbolic and instrumental goals. A given reform may be pursued or opposed for both instrumental and symbolic reasons, by different individuals or groups, by a given individual or group at different times, or by a
41 Hogg and Brown (1998: ch 1). 42 Rock (1995: 4). 18
given individual or group at the one time. Symbolic conflict may emerge out of dispute about instrumental outcomes.43
Symbolism has certainly been central to the debate about reform of police powers of criminal investigation in NSW. At times, it has appeared to be the dominant issue at stake, given the political advantages of strident law and order rhetoric. Take the following statement by a NSW Police Minister in 1998: ‘The Government is getting tough and strong, and is meeting community expectations by providing the police with stronger powers’.44 A statement of this kind suggests that promulgating new law is viewed as a significant outcome in its own right, regardless of what happens next. This is the very essence of symbolic reform. This phenomenon extends well beyond NSW. Garland has argued that in the law and order climate, reform is increasingly ‘designed to be expressive’ and ‘cathartic… to denounce the crime and reassure the public’, rather than to address crime in any real sense.45
On one level, law making is an unavoidably symbolic exercise. Laws do not simply cause things to happen. Laws achieve instrumental outcomes by influencing perceptions, for example, by leading some or all police to believe that they ought to comply with new rules governing their investigations. One effect of giving police tough new powers may be to encourage police to place greater priority on securing convictions at the expense of ‘due process’ rights, by symbolising the fact that ‘tough’ action against crime is the mission of police. The enactment of safeguards might, depending on the circumstances, symbolise an instruction to police to place greater emphasis on due process.46 Such symbols can influence the approach of police, resulting in an instrumental outcome - more aggressive policing, or greater attention to the rights of suspects.
43 Carson (1974), Dixon (1991b: 32-37). 44 This comment was made by a Government member in the debate on the Crimes Legislation Amendment (Police and Public Safety) Bill 1998: LA v 3/263 at 4104 (Mr Stewart, 29 April 1998). 45 Garland (2001: 133).
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The centrality of symbolism to law reform is illustrated by a comment made by the then Youth and Community Services Minister, Rex Jackson, on the Child Welfare (Amendment) Bill 1977:
The Government considered it desirable also to include in these amendments provisions relating to the interrogation of juveniles in police stations, to demonstrate its concern that youngsters in such situations should have special protection which can be adequately given only by statute.47
This could be read as an expression of a symbolic goal: that the Government was using legislation to symbolise its responsiveness to those concerned about childrens’ rights. Alternatively, it could be read as a description of an instrumental goal: that the Government was expressing its concern via legislation, with the intent that police comply, improving the position of children in practice. The reality is that these two readings are closely related, and in a given case symbolic and instrumental goals may simply be two sides of the same coin.
A related point concerns the dual character of law, and in particular laws governing the criminal justice system. An influential case has been made by McBarnet that criminal justice laws must be seen from two different angles: ‘the general principles around which the law is discussed - the rhetoric of justice - and the actual procedures and rules by which justice or legality are operationalised’.48 McBarnet argues that there is a ‘distinct gap’ between the two.49 The rhetoric of justice, she argues, emphasises the role of rights, liberties and careful processes to protect individuals. The substance of law gives those administering the criminal justice system (including police and courts) extensive discretion to secure crime control objectives, relatively unfettered by the need to comply with rights and
46 See Dixon (1996: 295-96). 47 LA v 3/129 at 4709 (2 March 1977). My emphasis. 48 McBarnet (1983: 6). 49 McBarnet (1983: 155). 20
processes. We will return to McBarnet’s analysis in the final chapter, measuring it against the NSW experience.
McBarnet’s analysis highlights again the importance of looking at the reform of criminal investigation law in aggregate, rather than piecemeal. We must consider the effect not only of specific changes to individual laws, but the overall, long run, impact of such changes on the rhetoric of law and justice as well as its reality.
Implicit in much of the discussion above has been the importance of considering the absence of reform, not just reform. McManus and Dixon, among others, have each highlighted the importance of non-reform as a subject of scholarly attention.50 If attention is directed only to the steps leading to a particular amendment, a distorted picture emerges. The factors present in that instance (for example, interest group support for reform) may be wrongly understood as a recipe for securing reform. Yet some or all of those factors may have been present on a previous occasion, or in another jurisdiction, without any reform eventuating. The only way to reach a firmer understanding of the reform process is to compare the events and circumstances attending reform with those attending non-reform. This is not to suggest that a comprehensive checklist can be compiled; but a more rounded picture becomes attainable.
Subsequent chapters give significant attention to the circumstances of non-reform. They also highlight the complex character of non-reform. The absence of reform can reflect the absence of debate, or even the absence of consciousness that there is an issue that might be debated, as we will see in chapter 2.
The absence of reform can also reflect the fact that those in a position to define a ‘problem’ do not favour reform, or believe the ‘risks’ in pursuing reform (for example, backlash) outweigh the potential benefits. Thus, even when questions
50 See McManus (1978), Dixon (1991b: 28), Dixon (1997: ch 5). 21
about police powers were on the public agenda, the police hierarchy and police union did not publicly lobby for these powers for some time (chapters 2 and 3).
A third variety of non-reform involves an explicit contest in which those resistant to reform succeed in ‘defeating’ those supporting reform (for example, in the case of early efforts to introduce roadside testing of drunken drivers - chapter 2; and in response to the ALRC Criminal Investigation report - chapter 4). It is misleading to think of ‘winners’ and ‘losers’ in these debates. Even where a reform is enacted, opponents may have done as much as supporters to shape its content and timing. Alternately, an unsuccessful reform endeavour may fuel subsequent efforts.
In analysing support for, or opposition to, a given reform, it is important to recognise this as a distinct concept to support for, or opposition to, a given piece of legislation. A criminal investigation legislative initiative will commonly include both powers and restraints. Typically then, representatives of police or civil libertarian interests and others will express neither outright support nor outright opposition to the Bill. Rather, they will press for changes in their preferred direction (enhancing or restricting police discretion) and resist aspects of the Bill that lead away from their preferred direction of reform.
History and Policy
The third objective of the thesis is to produce an historical account that is relevant to future policy development processes. At this point, it is appropriate to declare the personal perspective that led me to this subject.
In the period 1994-96, and again since 1999, I have been centrally involved in a significant number of major reforms to Commonwealth criminal investigation law as a policy lawyer with Commonwealth Attorney-General’s Department. The first such measure was the Crimes Amendment (Forensic Procedures) Bill 1995, 22
enacted with minor changes in 1997. This laid down a detailed framework for obtaining samples from a suspect’s body, for example blood, saliva or hair. During the same period, I worked on legislation to authorise and regulate undercover operations, a project begun even before the High Court’s 1995 decision in Ridgeway v R. 51 The result was the Crimes Amendment (Controlled Operations) Bill 1995, later re-introduced and enacted in 1996.
Since 1999, I have been responsible for assisting the Government with three further initiatives in this area. The Measures to Combat Serious and Organised Crime Act 2001 was the most significant, having gone through a process of policy development and negotiation lasting two years, prior to its introduction into Parliament. The Act contained much broader controlled operations provisions to those enacted in 1996, a framework for the issuing and use of assumed identities (each based on NSW legislation), and an assortment of reforms to listening device, detention and questioning and search warrant provisions. A second initiative was the National Crime Authority Legislation Amendment Act 2001, a major overhaul of the Authority’s powers and procedures, especially as regards its hearings. The third was the Cybercrime Act 2001 which contained new computer crime offences, and amendments to powers to search for electronically stored material. As the thesis was nearing completion, I was also working on anti- terrorism initiatives.
In this thesis, I have made only sparing reference to this direct experience; but it is only reasonable to acknowledge that it has exerted considerable influence on my perception of law reform in this area. I have participated in closed negotiations with police and prosecutors, and in public debates with Bar Associations and Councils for Civil Liberties. I have participated in negotiations between Ministers and backbench members of their own parties, Liberal and Labor, sometimes involving considerable debate and compromise that will never form part of the public record.
51 (1995) 184 CLR 19. 23
I have seen at first hand the way that pragmatic deals are made behind the scenes, and the way interest groups (within government as well as outside) seek to exercise power and rely on contacts. I have also seen the considerable influence exerted by individual personality, expediency and even confusion and misunderstanding in the course of debate and reform. Paul Rock is certainly correct in saying that in the ‘small world of the policy maker, personal character, influence and reputation count’.52 Yet for all that, I am more convinced than ever that understanding broader trends is important, and the appropriate focus of scholarly inquiry. Working on the reforms mentioned above, I could see that there was a broad trend to codification at work, setting the context for our every action. I wanted to understand this broader trend. Incidents and anecdotes are part of every day life, but the proper analysis of long term trends requires a sustained project of this kind.
The question that then arises is how best to weave a bigger picture out of specific incidents. As Garland points out, in attempting to make sense of social phenomena ‘there is an unavoidable tension between broad generalization and the specification of empirical particulars’.53 My approach has been to highlight particular themes that reveal something significant about the process of debate and reform, and to illustrate those themes with specific examples. I have also concentrated on the public discourse of criminal investigation law, rather than on the details of private confrontations and deals.
While the focus of this thesis is on the forces shaping debate and reform, the impact of legislation on policing practice is of crucial importance to both understanding the reform process and in identifying policy implications. A major obstacle to this is the lack of research on the links between policing practice and legal rules in NSW. The Queensland Criminal Justice Commission has noted that in Australia generally, there is limited knowledge about the way police powers are
52 Rock (1995: 4). 53 Garland (2001: vii). 24
exercised. Law reform bodies and policing inquiries that have examined criminal investigation practice have relied on submissions, anecdotes and the odd reported case, rather than systematic research.54
In recent times this has started to change. The Queensland Criminal Justice Commission has itself undertaken a detailed survey of defendants’ experiences in the criminal investigation process, both before and after the enactment of the Police Powers and Responsibilities Act 1997 (Qld).55 The NSW Ombudsman has monitored and reported in detail on the way in which new powers have been exercised.56 Another area that has been the subject of in-depth research is the impact of random breath testing in NSW.57
Even in these areas, it is rarely possible to say ‘X reform led to Y change’. What is possible is to draw on the kinds of studies mentioned above, and the broader literature on the legal regulation of policing. The most important point, worthy of emphasis at the outset, is that amendments to law do not lead in any direct or simple sense to parallel changes in practice.58 A whole range of factors mediate between the two. First, police and persons subject to the exercise of powers may be unaware of legal rules, or misunderstand their effect (see chapter 8). Secondly, the law may be just one possible tool, which may be used or not used, depending on the circumstances (see chapter 2). For example, a police officer may rely on consent rather than invoke a power; a suspect may prefer not to have a lawyer attend despite a legal right to one. Thirdly, police or others may feel that contravening the law is a price worth paying to achieve some other end; for example, to ‘nail’ a person believed to be guilty (see chapters 3, 6 and 8). Fourthly, police or others may have a generalised cynicism about the law, contravening it out of disregard even if there is no particular pressure or incentive to do so (see chapters 3, 6 and 8).
54 Edwards (1997: 218). See also Dixon (1999a: 146), NSW LRC (1990: 162). 55 Edwards (1997), Criminal Justice Commission (2000). 56 NSW Ombudsman (2000a), NSW Ombudsman (2000b). 57 Cashmore (1985), Homel (1988), Homel (1995). 58 For a discussion of the law/ policing relationship, see Dixon (1997: chs 1, 7). 25
These mediating factors can be extremely powerful. It would be a fair summary of international studies of policing practice to suggest that the law has traditionally been a fairly weak influence on police conduct.59 Factors such as external pressure to achieve ‘results’, and the shared agendas encouraged by police cultures, have tended to exert much stronger influence on policing practice. Even where police actions ‘comply’ with the law, law itself will not necessarily influence police practice in any meaningful way, because of the wide range of actions that would be consistent with the law (including intervention without formally invoking powers).60 The links between legal rules and policing practice are considered further in chapters 7 and 8.
The divergence between legal rhetoric, legal reality and criminal investigation practice might be thought to make law reform in this area unimportant or uninteresting. Nothing could be further from the truth. If reform may have only a modest impact on policing practice, then we are left with a pressing question: what was reform all about? This is one of the central questions to which the thesis is directed.
Rigorous analysis of the history of debate and reform is also important because, as Rothman and Wheeler argue, ‘policy makers, in informed and uniformed ways, are already using history… [b]ut too frequently, this history is an invented one’.61 The Parliamentary debate on the Crimes Amendment (Detention After Arrest) Act 1997 provides an example. Opposition spokesman Andrew Tink argued that as a result of the Williams High Court decision prohibiting detention for questioning, NSW courts had ‘refused to admit into evidence large slabs of important evidence’.62 This claim is at odds with the historical record.63
59 See Bittner (1990: 34-38, 92, 112-15), Dixon (1997: chs 1, 5), Skolnick (1994: 4), McConville, Sanders and Leng (1991: 175), Reiner (2000: 86-87). 60 Bittner (1990: 34-38, 92), McBarnet (1983: ch 3). 61 Rothman and Wheeler (1981: 8). 62 LA v 3/259 at 10828 (19 June 1997). 63 The NSW judiciary went to considerable lengths to avoid ‘applying’ the Williams decision: see Wood (1997: 36, 445), Dixon (1997: 210-14), NSW LRC (1990: 17, 90). 26
Until now, there has not been much scholarly work on the history of criminal investigation law debate and reform in NSW. There are, however, some existing accounts that later chapters build on and in some cases re-evaluate.
The story of the 1970s inquiries that recommended major amendments to criminal investigation law, and the fierce opposition that met these recommendations, have been touched on in a number of accounts.64 The most detailed analysis is provided in the 1984 book Criminal Justice in Australia by Sallmann and Willis, who set out to explain the impasse that was blocking reform at that time and to chart a way forward.65 These accounts are considered further in chapter 4.
Secondly, a number of books and articles have explored various aspects of the history of Australian criminal justice, including Finnane’s Police and Government, Haldane’s history of the Victoria Police, The People’s Force, and Manderson’s history of drug use in Australia and the legal response, From Mr Sin to Mr Big. There are also a number of accounts focusing on the role of police unions in political debate.66 Mark Finnane, in particular, has written extensively on this topic. These accounts are drawn on in a number of chapters.
Thirdly, a number of leading works primarily directed to contemporary law and practice contain significant sections setting out historical background. These include Law in Policing by Dixon, Criminal Laws by Brown, Ferrier, Egger and McNamara, Australian Criminal Justice by Findlay, Odgers and Yeo; and Litigation: Evidence and Procedure, by Aronson and Hunter. All are drawn on in this account.
Finally, a number of academic commentators have examined the influence of law and order politics on criminal justice debate in Australia, including debate about
64 See, for example, Sallmann (1982a; 1986), Ross (1982: 81-83), Kirby (1979). 65 Sallmann and Willis (1984: 2-5, 16-27, 38-40).
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police powers. The leading example is Rethinking Law and Order by Hogg and Brown, published in 1998.67 Again, the emergence of law and order politics and its subsequent influence is a key theme throughout the remaining chapters. The analysis by Hogg and Brown receives particular attention in chapter 7.
The thesis draws on a diverse range of sources, in addition to academic literature. These sources range from the reports of Royal Commissions, law reform bodies, inquiries and government agencies; through journals, publications and Internet web sites of organisations representing police, lawyers, civil libertarians and others involved in law reform debates; to Parliamentary debates, agency annual reports, reported case law, and newspaper articles.
The research for this thesis also included interviews with Tim Anderson, David Brown, Ken Buckley, Brett Collins, the Hon Justice John Dowd, the Hon Justice Michael Kirby, Lloyd Taylor and the Hon Frank Walker QC. In each case, I prepared a list of questions based on my understanding of their role in the law reform debate. The questions were generally directed to better understanding the circumstances in which the person had become involved in the debate about criminal investigation law reform, and the reasoning behind their documented statements and actions. On each occasion, additional questions were prompted by the course of the interview. I tape recorded the interviews and subsequently had them transcribed. Material drawn from interviews, and the dates of those interviews, are clearly marked in the footnotes.
In addition, archival material was drawn from a range of sources. David Brown, Ken Buckley, Lloyd Taylor and the Hon Frank Walker QC gave or lent me copies of relevant documents. For example, David Brown had a large number of papers relating to the campaign against police verbals. I also made a number of visits to the NSW Archives and the Australian Archives, which in the former case included
66 See, for example, Finnane (1987; 1989; 1990; 2000a), Smith (1994), White and Richards (1992), Egger and Findlay (1988), Willis and Sallmann (1985). 67 Hogg and Brown (1998). 28
access to the records of the now deceased Justice McClemens. I was also granted permission to access the archives of the ALRC in relation to the preparation of the Criminal Investigation report; and the NSW Law Reform Commission in relation to the preparation of the Police Powers of Detention and Investigation after Arrest report. The records of the two Law Reform Commissions and those of Justice McClemens are central to the analysis in later chapters.
The NSW Branch of the Australian Labor Party allowed me to examine non- public access material in their collection of archives in the Mitchell Library. Judge Paul Mullaly, who had been counsel assisting the Norris Committee, kindly wrote to me with answers to some questions I had sent him. I also obtained a key report on search law, prepared by the Attorney-General’s Department,68 as a result of a freedom of information application.
Remaining chapters draw on a range of theoretical ideas, including the key insights outlined above. One is that different influences on law making operate at different levels. These can be labelled ‘structural foundations’ and ‘triggering events’ although Galliher, who coined the terms, gives them unnecessarily restrictive meanings. A second insight is that incremental legal change is an appropriate subject for study. Criminal investigation law in NSW is a classic example, having been the subject of vast change by incremental steps.
A third insight is that both ideas and language can influence the course of debate and reform, in a way that can’t be explained simply by the influence of the people who espouse those ideas. A fourth is that law making necessarily has an important symbolic component. Law changes behaviour (an instrumental outcome) by influencing perceptions, and does so by symbolically representing certain ideas about how the world should be. Later chapters examine both the symbolic and instrumental goals of law-making, and the relationships between them.
68 NSW Attorney-General’s Department (1983). 29
A fifth insight, offered by McBarnet, is that law has a dual character, a general, collective, rhetorical role and a specific role in application to particular cases. This dual character of law gives added importance to the study of the way that criminal investigation law is discussed and debated. Discussion and debate about law can influence the rhetoric of the law, and in that sense form part of the law itself. A sixth insight is that the absence of reform is a complex and significant subject of study.
The remaining chapters are divided as follows. Chapter 2 examines the absence of debate on most areas of criminal investigation law from 1945 to the early 1960s, and then examines the exceptions to this, notably the extensive debate about roadside testing of drunken drivers. Chapter 3 examines the emergence of a broader debate about criminal investigation law from the late 1960s, centring on a series of inquiries in the 1970s. Chapter 4 details the fierce resistance to the recommendations of these inquiries in the late 1970s and early 1980s. Chapter 5 examines the influence of the ‘war on drugs’ on criminal investigation law, with a close examination of the recommendations of the 1980s Royal Commissions on drugs and organised crime.
In Chapter 6, there is a detailed examination of the highly problematic question of police practices in questioning suspects and securing ‘confessions’ and the policy responses that emerged after long struggle. Chapter 7 examines some major themes that have influenced the enactment of new powers since 1980, the period when the legislative trend really picked up steam. Chapter 8 examines major themes that have influenced legal regulation in the same period. Chapter 9 returns to the fundamental question: what has the trend to legislative regulation been about? An abstract that outlines key findings follows chapter 9, and is in turn followed by the bibliography.
That is the backdrop against which the remaining chapters are framed.
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2. THE FREE BRITISH WAY
This chapter examines the nature of the legal framework that governed the investigation of crime in NSW in 1945. It goes on to outline key prevailing ideas about crime, law and policing in the period from the mid-1940s to the mid-1960s, and examines how these inhibited consideration of the need to reform criminal investigation law. Specific incidents are highlighted to illustrate the links between those prevailing ideas and the inattention given to criminal investigation law.
The chapter also examines the exceptional cases, where criminal investigation law was the subject of discussion and debate, and explores the reasons for this attention. The controversy surrounding a 1963 seminar on police and human rights is used as a particularly notable case study. Finally, the chapter sets out a detailed examination of the most significant debate about criminal investigation law in the two decades from the mid-1940s, namely the debate about police powers to chemically test suspected drunken drivers. The influences that encouraged debate and those that delayed reform are given close attention, as are perceptions of police practice and malpractice, and the nature of the police contribution to debate.
The Absence of Law
In 1945, NSW police had few formal legal powers. They had a power to apprehend a suspected offender.69 Legislation suggested (when understood in the context of the common law) that a person who had been arrested could not be held for questioning before being taken before a magistrate or justice of the
69 Crimes Act 1900, section 352 (as in force in 1945). Other legislation contained additional apprehension powers, for example, sections 26 and 57 of the Police Offences Act 1901. See also Goran (1951: 16) on arrest warrants. 32
peace.70 A leading NSW textbook published in 1951 outlined the case law on detention as follows:
The person arrested should be taken before a justice without unreasonable delay and by the most reasonably direct route... A person must not be arrested for the purpose of questioning him or of investigating a crime, but for the purpose of bringing him before a magistrate…71
This was not the full story, a fact betrayed by the comment later in the text that a person refused bail by police was to be brought before a justice as soon as practicable ‘if he so demands’.72 This pointed to ambiguity as to whether, in the absence of a ‘demand’, police could continue to hold a suspect after refusing bail. The legal position on detention of suspects was and would remain vexed.
Police also held a power to stop, search or detain any vessel, boat or vehicle on which there was ‘reason to suspect that anything stolen or unlawfully obtained might be found’ and to stop, search and detain any person having or conveying such a thing.73 No warrant was required.
Search warrant powers included a power to search a person or premises for ‘any property with respect to which an offence punishable by indictment has been or is reasonably believed to have been committed’.74 While this power authorised a search for stolen goods, it arguably did not authorise a search for other evidence,
70 Crimes Act 1900, section 352 (as in force in 1945). This stated that a constable or other person ‘may’ apprehend a person in specified circumstances ‘and take him, and any property found upon him, before a Justice to be dealt with according to law’. 71 Goran (1951: 15-16). 72 Goran (1951: 16). 73 Police Offences Act 1901 (as in force 1945), section 36. 74 Crimes Act 1900, section 354 (as in force in 1945). Sections 355 and 356 were also key search warrant provisions, as was section 28 of the Police Offences Act 1901 (as in force in 1945) which permitted entry and search in relation to anything stolen or unlawfully obtained, whether or not an indictable offence was suspected. 33
such as implements used in committing an offence.75 Thus police lacked clear powers for one of the most basic investigatory techniques imaginable: searching for evidence.
Once a person was in ‘lawful custody’, NSW police had some additional powers. They could search the person. They could arrange a medical examination on the order of a sergeant, where there were reasonable grounds to believe this would yield evidence of an offence. They could also take any particulars deemed necessary for identification, including the person’s fingerprints and photograph.76
As far as formal powers went, that was about it. However, it would be misleading to imply that police had no other options for investigating crime. As Dixon points out, ‘police do not need to have legal powers for everything that they do. Like other citizens, they may do anything that the law does not forbid’.77 At common law, there was plenty that could be done without formal powers, notably through the mechanism of ‘consent’.78 One person was always free to ask another person a question, and the person so questioned free to answer. This was true even if the questioner was a police officer, the venue was a police station, and the person questioned thought they had to remain.79 One person was free to go into another’s home with consent, even if the person making entry was a police officer, the home was thought to contain evidence, and the person allowing entry assumed a warrant would be sought if they refused consent. Such situations would simply not be thought of in terms of police ‘powers’, they were (and are) just a normal incident of policing practice.
75 See the comments of the then Minister for Justice, Mr Maddison, referring to the report of the Amsberg Committee that reviewed the provisions: LA v 3/109 at 1359 (13 March 1974). This limitation was overcome by the Crimes and Other Acts (Amendment) Act 1974, which inserted a new section 354 in the Crimes Act 1900 providing, among other things, scope to search for ‘anything that there is reasonable ground to believe will afford evidence with respect to the commission of any indictable offence’. 76 Crimes Act 1900, section 353A (as in force in 1945). 77 Dixon (1997: 66). 78 See Dixon (1997: ch 3). 79 See further discussion in chapters 3 and 5. 34
At common law, even telephone tapping was permitted if no property rights were transgressed,80 although in Australia tapping had been expressly prohibited by Commonwealth legislation.81 The prohibition on telephone tapping was a rare exception to the minimalist legal framework for criminal investigation in NSW and other Australian jurisdictions. As late as 1984, Sallmann and Willis described Australian police as operating in a ‘legal vacuum’.82
The lee-way given by the common law was coupled with considerable lee-way for police to contravene apparent legal requirements. A 1966 book by Campbell and Whitmore, entitled Freedom in Australia, argued that of necessity, Australian police needed to regularly exceed their legal authority ‘in the interests of law enforcement’.83 They also noted the limited scope for challenging police action. There was no independent complaints mechanism such as an Ombudsman. Civil action against police was costly and proof was difficult especially if no third party had been present. Campbell and Whitmore suggested that for every civil action taken against police ‘at least ten other instances’ were not pursued.84
An article in the Sydney Morning Herald in August 1954 highlighted some of the limitations (figuratively and literally) in the law governing interrogation by the police. For example, it was often thought that a person under arrest was entitled to contact a solicitor. In practice, however:
there is no obligation whatever on the police to arrange for one to attend. There is no way of compelling them to produce one. Nor can they be forced to question you in the presence of your solicitor… you are obliged to rely on the integrity of the police. As far as the events at
80 Malone v Metropolitan Police Commissioner [1979] Ch 344 at 367 per Megarry VC. For a discussion of that case, see Fitzgerald and Leopold (1987: ch 6) and Dixon (1997: 66-68). 81 See regulation 16A of the Telephone Regulations inserted by Statutory Rules No 93 of 1935 under the Post and Telegraph Act 1901 (Cth), which was subsequently replaced by the Telephonic Communications (Interception) Act 1960 (Cth), in turn replaced by the Telecommunications (Interception) Act 1979 (Cth). 82 Sallmann and Willis (1984: 20). 83 Campbell and Whitmore (1966: 32-33). 84 Campbell and Whitmore (1966: 74-75). 35
a police station interview are concerned, it is, by and large, the evidence of one person as against that of two police officers.85
The article summed up the situation succinctly: ‘If you are arrested, you have no rights…’.
This was one example of the more widespread disjunction, as described by McBarnet, between the ‘substance and the ideology of the law’.86 On a rhetorical or ideological level, police were tightly constrained by narrow powers. Yet the legal reality was they had considerable scope to undertake coercive action in investigating crime.
From time to time, the absence of formal legal powers was the subject of open discussion, as in the case of the Sydney Morning Herald article cited above. It was also discussed within policing circles. In late 1949, for example, there was a discussion within the Executive of the NSW Police Association as to whether police had ‘power’ to remove a passenger improperly riding on the rear platform of a bus or tram. The Executive concluded that although police were called to remove such passengers, there was ‘no power… only bluff’. The records of the meeting reveal consternation at this realisation. Concern was expressed that ‘a young member of the Service could fall into court action through the matter’.87
The fact that there is no record of the Police Association calling for legislative amendments to empower them to remove people from trams is indicative of its reticence to become involved in the ‘powers’ debate before the 1970s. It is reasonable to surmise that the Association recognised that calling for powers might draw unwanted attention to the disjuncture between legal rhetoric and police practices. As it was, the few amendments to criminal investigation law
85 SMH (1954: 7 August at 2). 86 McBarnet (1983: 155). 87 Police Association of NSW (1949: 9). 36
enacted during this period were of a minor and technical nature only. They can be surveyed in short order.
In 1949, NSW police were empowered to require the owner or custodian of a vehicle to provide a written statement setting out the name and address of the person driving the vehicle at the time of an alleged motor traffic offence.88 Previously, police had been authorised to require the vehicle owner to provide ‘information’. By allowing police to require information in writing, the resulting statement could more readily be used as evidence in court. The amendment received bipartisan support in Parliament,89 and was the subject of minimal debate. The Minister for Transport noted that the amendment had been requested by police.90
In 1951, NSW police obtained a power to palmprint suspects, to supplement their existing powers to take fingerprints.91 The role of the Police Commissioner in bringing about this amendment is discussed further below. It was a modest change.
When the Police Offences (Amendment) Drugs Act 1954 was enacted to make it an offence to possess heroin or engage in a dealing with heroin, provision was included for a justice to issue a warrant, allowing police to enter and search the premises of a suspected offender.92 This was equivalent to the search warrant powers already available in relation to suspected offences involving other drugs (for example, opium and cocaine).93 It was a small step towards the strong focus on drug crime in criminal investigation law in later years.
88 Section 2 of the Motor Traffic (Amendment) Act 1949, amending section 5 of the Motor Traffic Act 1909. 89 LA v 2/189 at 2098 (Mr Richardson, 18 May 1949). 90 LA v 2/189 at 1518 (Mr O’Sullivan, Minister for Transport, 17 March 1949). 91 Paragraph 2(z) of the Crimes (Amendment) Act 1951 amending section 353A of the Crimes Act 1900. 92 Paragraph 2(b), inserting subsection 20C(4) in the Police Offences (Amendment) Act 1908. 93 Section 20A of the Police Offences (Amendment) Act 1908, inserted by section 7 of the Police Offences Amendment (Drugs) Act 1927. 37
A second 1954 amendment concerned section 410 of the Crimes Act 1900. Section 410 had provided (among other things) that a statement by the accused was to be excluded from evidence if induced by an untrue representation. The amendment made clear that an accused’s statement was only to be excluded where the untrue representation had been held out by the prosecutor or some person in authority.94 An untrue representation by a third party would not affect admissibility. This had previously been assumed. The clarification was proposed by the NSW Chief Justice.95
The fact that the law of criminal investigation remained stagnant in the period 1945-67 cannot simply be attributed to the absence of a ‘problem’, in any objective sense. As the tramways example illustrates, there were times when the absence of formal powers was noticed. As the Sydney Morning Herald article cited above illustrates, the absence of procedural safeguards was also noticeable at the time. To understand why this limited legal framework survived, it is necessary to look further. An examination of the way the law/ policing relationship was conceptualised provides a useful vehicle to do this.
Until the late 1960s, an important tenet of much discussion of policing and law in NSW and Australia generally was that Australians were the custodians of a set of long established British values and institutions that should not be tampered with lightly. One aspect of this paradigm was that the law was based on certain fundamental principles, for example, that ‘a man’s home should be inviolate’,96 and that a person should be under no legal compulsion to incriminate him or herself. These were viewed as ‘constitutional safeguard(s)’,97 that had been ‘laid down for a thousand years’ to protect the citizenry ‘from tyranny’.98 Even the Victorian Police Commissioner was happy to declare that blind obedience to
94 Section 2 of the Crimes (Amendment) Act 1954. 95 See LA v 3/8 at 200-2 (Second reading speech by the Attorney-General, Mr Sheahan, 31 March 1954). 96 LA v 2/171 at 3430 (Mr Mair, Opposition leader, 19 May 1943). 97 J Ayling, Letter to the Editor: SMH (1969: 1 February at 2) on the privilege against self- incrimination.
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tyranny did not flourish on ‘English soil’ (or by implication, the soil of the Australian federation).99
Another side of ‘the free British way’ paradigm was the idea of the police officer as citizen in uniform, operating not to coerce the community (through formal powers) but rather as a member of the community, operating on a consensual basis. For example, the Commonwealth Telephonic Communications (Interception) Bill 1960 conferred telephone tapping powers on the Australian Security Intelligence Organisation but denied these powers to law enforcement agencies. In the debate on the Bill, Labor Senator Wright argued that because ‘of the British character and the insistence of the people upon the judicial safeguards that have upheld British freedom, over the succeeding century and a half the police force has become not a menace to freedom but, as Churchill said, a friend to everybody in the community except the law-breaker’.100 John Maddison, the Minister for Justice in the conservative Askin Government in the late 1960s and early 1970s was one of the last exponents of this view in the NSW political system. Maddison did ‘not believe the Police require a wide range of invasive powers in order to be effective’. The genius of Anglo-Australian policing was, he said, that because police ‘were not given the additional power they desired’ they were forced to be ‘more skilful’.101
Maintenance of traditional frameworks for British justice had strong appeal in the conservative, Anglophile social climate of Australia from the 1940s to the 1960s. Commitment to this paradigm went to the highest levels of Australian society. Manning Clark argues that ‘through the years after 1945, the faith of Prime Minister Menzies in British institutions and British civilisation never ceased’.102 Those who adhered to these views were unlikely to welcome tampering with the system. In the mid-1960s, the then NSW Solicitor-General argued, for example,
98 House of Representatives Debates v 27 at 1616 (Mr Bryant, 11 May 1960), in opposing telephone tapping powers. 99 Cowen and Porter (1963: 10). 100 Senate Debates v 17 at 1090 (19 May 1960). 101 Maddison (1974b).
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that once it was understood that detention for questioning had been prohibited ‘for centuries’ there was clearly no ‘possibility whatever’ of police being given such a power.103 Similarly, one member of the NSW Parliament declared that ‘we have the common law and inherent rights that have been handed down to us. The liberty that has been won for us in the past is not to be whittled away by giving power than can be exercised in a capricious way…’.104
Australians who held these views were faithfully reflecting the British ideal, if not the British reality. As Reiner has shown, the ideals of policing by consent and minimalist powers were among those that underpinned the legitimacy of the British police and public support for them.105 In the 1950s, these ideals came as close as they ever have to being accepted as reflecting reality in British policing, in what Reiner has described as a ‘high point of police legitimation’.106 However the perceived entrenchment of civil liberties reflected the rhetoric of justice, not the reality of law. This was true of both Britain and Australia.107
The ‘free British way’ paradigm of law and policing in NSW assigned a prime role to the courts in the regulation of police conduct and the vindication of individual rights. Indeed, the primacy of the courts was sometimes seen as obviating the need for any action from the Parliament or the Government.
In 1964, the Minister for Justice was asked whether he had considered the new ‘Judges’ Rules’. These were guidelines promulgated by the judges of the English Queen’s Bench Division as to practices and procedures to be followed by English police in questioning suspects.108 The promulgation of the 1964 Judges’ Rules by the Queen’s Bench Division was itself indicative of an abdication of the function
102 Clark (1995: 291). 103 Mr Snelling QC: ‘Second Meeting of Sub-committee, 8th March 1966’ (NSW Archives Box 6/4505). The comments were made during the deliberations of the Herron Committee, discussed further in chapter 3. 104 LA v 3/81 at 841 (Mr Sheahan, 10 September 1969). 105 Reiner (2000: 48-59). 106 Reiner (2000: 58). 107 McBarnet (1983: 6 and generally), Dixon (1997: chs 4 and 5).
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of regulating police practices, in this instance by the British Government. It had actually invited the Court to re-examine previously formulated judicial guidelines (the 1912/1918 Judges’ Rules) as an alternative to consideration of the guidelines by the Royal Commission on the Police.109
The promulgation of the rules by the English judges raised the question of whether NSW would follow suit, given the close attention given to England as a model for NSW to follow. The NSW Government showed itself no more willing than the British Government to involve itself in regulating police practices. The response to the rules was, said the Justice Minister, ‘purely’ a matter for the Chief Justice.110
A decade earlier, the Australian Law Journal had noted that the latitude to be given to police in obtaining confessional evidence was a matter that had ‘been debated for many years’, yet ‘the legislature has abstained from giving any guidance at all on it’.111
Governments also abdicated responsibility in relation to specific cases. In 1953, for example, Mr Frank Weekes alleged he had been taken into detention at 4 am, and then bashed until he agreed to make a false confession. The Premier’s Department simply advised him to raise the matter at his trial.112 The following year, the NSW Government refused to extend an existing inquiry into alleged bashing by police of a suspect in custody (Studley-Ruxton) to encompass similar allegations made by a Mr Alan Rigby. Again, allegations against police were said to be a matter for the courts. Attorney-General Sheahan argued that ‘a vigilant solicitor would have wasted no time in invoking the supremacy of the law’.113 The Studley-Ruxton case is itself discussed below.
108 The rules were published at [1964] 1 All ER 237. See also ALJ (1964b; 1964c), Dixon (1997: 134-36). 109 See Dixon (1997: 134-36). 110 LA v 50 at 7412 (3 March 1964). The subsequent decision by the Australian and NSW judiciary to in turn decline to take responsibility for responding to the 1964 Judges’ Rules was to be an important development in the police powers debate, a point discussed in chapter 3. 111 ALJ (1954b: 137). 112 Sun (1953: 27 August at 7). 113 SMH (1954: 12 March at 1). 41
Sometimes the courts did reject police evidence, acquit defendants, award civil damages, and draw attention to police improprieties.114 However, the overall adequacy of court processes to vindicate individual complaints against police has often been criticised, both by observers at the time and later commentators.115 Police wrongdoing is a separate issue to a person’s guilt. Accordingly, if a person is not prosecuted, enters a guilty plea or has no relevant basis to bring evidence of police misconduct, the idea of raising the matter ‘at trial’ will be of little value. Civil actions are costly and proof may be hard to come by. In either case, a person alleging misconduct faces a legal system that is likely to categorise them as the primary wrongdoer and hence a person of limited credibility. Against this, police begin from a more credible and hence stronger position, especially if the policing organisation closes ranks. In May 1963, a correspondent to the Daily Telegraph argued that ‘In court, a policeman’s word often seems to be taken more or less for granted’.116
The result was a ‘general lack of visibility surrounding this area… the broad issues of police investigation of crime remained to a considerable extent a matter for the various police bodies’.117 That is, the system placed considerable reliance on the police themselves. Even those seeking to criticise police practices appeared constrained in the way that they made their points. While the Sydney Morning Herald called for an inquiry into alleged police misconduct and bribery early in 1954, it was at pains to say that ‘the public will, in the meantime, be most reluctant to believe that any officer of the law would behave in the manner alleged’.118 Similar deference was shown by one of the earliest proponents of an Ombudsman for NSW, Mr Maddison MLA, later to be Justice Minister. In arguing for independent investigations of alleged police misconduct, he did not spare the
114 For reported instances, see for example, SMH (1947: 24 July at 17; 1951: 6 November at 6; 1964: 14 May at 4), Arantz (1993: 41). 115 See, for example, Campbell and Whitmore (1966: 71-75), ALRC (1975a: 136), NSW LRC (1990: 14-18), Lewis (1999: 72-81). 116 DT (1963: 10 May at 2). 117 Sallmann and Willis (1984: 19). 118 SMH (1954: 10 March at 2). 42
decimals in asserting his faith in police. Of complaints against police, he declared, ‘99.99999 per cent’ of complaints were unjustified.119
In private, less sanguine sentiments were expressed. In the late 1950s, the NSW Teachers’ Federation became so concerned about police frame ups of members on ‘offensive behaviour charges’ that it sent a circular to all Federation Representatives on the topic. It advised, among other things, that members should not go alone into public toilets.120
One of the most interesting contrasts between the periods before and after the late 1960s is the change in the approach by the NSW Police Force and NSW politicians to the presentation of the crime rate. In the earlier period, there was far more effort to play down the crime rate than there was to highlight the extent or growth of crime. The Wood Royal Commission was later to describe the 1950s as an era ‘in which there was considerable pressure to repress criticism of the Service, and to contain public disclosure of matters of potential embarrassment, including the falsification of crime figures’.121
Up until 1970, the remarkably low crime figures and high clear up rate for offences were frequently cited in praising the Force. In 1953, the Police Association President argued that the clear up rate in NSW compared ‘favourably with any other Police Force in the world’.122 In 1963, the NSW Premier boasted that ‘in the field of crime detection’ the NSW Police Force ‘rank second to no other police force in the world’.123 In 1967, the Hon Asher Joel MLC, on returning from a visit to the United States praised the Force for maintaining such a high clear up rate, well ahead of the record of American police departments.124
119 LA v 52 at 401 (3 September 1964). 120 New South Wales Teachers’ Federation Circular 20th June 1958 (NSW Archives Box 121264.2). 121 Wood (1997: 58). 122 Boston (1953: 6). 123 LA v 3/46 at 4520 (28 August 1963). 124 LC v 3/67 at 478 (16 August 1967). 43
In fact, the NSW Police Force was engaged in a systematic and deeply entrenched conspiracy to fabricate crime statistics. Philip Arantz, who later blew the whistle, has detailed some of the methods involved. The official ‘crime book’ was kept under lock and key, with crimes generally only entered if they were likely to be solved. Other crimes were noted in secondary documents, and hence kept out of the official tally. Where the theft of property was recorded, its value would be understated. This process was centrally controlled, with monthly meetings of sub- district detective sergeants to discuss the statistics. If crime figures were too high or the clear-up rate too low, the responsible sergeant would be castigated by the chief of the Criminal Investigation Branch.125
The manufacturing of good news about the crime rate had a two-fold effect. Senior police, who knew the figures were false, may have been less inclined to call for additional powers, to avoid any suggestion that there was a ‘problem’ police were failing to contain. Interested members of the community unaware of the falsification would have been less likely to consider additional powers necessary. More broadly, the manufactured complacency about crime helped give policing a lower profile, and make it a subject of less political significance than would otherwise have been the case. Here, we can start to see the nature of the relationship between concern about crime, law and order politics, government intervention, and criminal investigation law. Given pressure to play down crime, crime was minimised as a public political ‘issue’, thereby removing a potential trigger for the discussion of police powers.
Misconduct revelations did not necessarily lead to pressure for greater regulation of police. Improper police conduct was typically seen as reflecting the moral flaws of a few ‘rotten apples’ (or black sheep), an inevitable part of any profession or group. The solution was to identify and punish these rotten apples. Broader, more systemic reforms were treated as being beside the point, irrelevant to the question of personal character.
125 Arantz (1993: 39). 44
The ‘rotten apple’ paradigm was influential at the highest levels. In 1953, Deputy Premier (and future Premier) Heffron told the Police Association annual conference that:
Any Force, any members of Parliament, members in any walk of life… cannot escape the occasional black sheep creeping up, but that is no reason to seize upon such events for the purpose of making general attacks.
I think we have from you, and your Commissioner has, your wholehearted endorsement of actions that have been taken to deal with somebody who is a member of the Force and who strayed from that straight and narrow path.126
In the mid-1960s, even the NSW Council for Civil Liberties appeared to accept the rotten apple paradigm. In July 1964, in a letter to Premier Renshaw, the Council’s Committee expressed the view that ‘The integrity of the Police Force can only be maintained whilst vigilant action is taken, by those responsible, to purge the Force of those members who discredit it from time to time’.127
Simplistic notions of police misconduct were also shared by highly reputable academic commentators. No lesser legal authority than Sir Rupert Cross is a case in point. In a leading evidence text of the 1950s and 1960s, he argued against the exclusion from evidence of illegally obtained material. His stated reasoning was that the ‘all-important sanction’ for deterring improper and illegal police conduct was the disapproval of fellow police.128 This again assigned a central place to personal morality, and largely disregarded systemic factors.
126 Heffron (1953: 8). 127 Cited in Civil Liberty (1964: 3 at 5) and ‘Council for Civil Liberties - Policy Decisions 1970’. 128 Cross (1958: 266). 45
These then were some of the key factors suppressing the potential for debate about the law of criminal investigation in NSW: the paradigm of British stability; reliance on courts; faith in police; the down playing of crime; and the rotten apple paradigm. It is instructive to examine the interplay of these factors in the context of some specific incidents and debates during the period from the late 1940s to the mid-1960s.
In 1947, there was a debate about the scope of the consorting law. This law, enacted in 1929, allowed police to arrest and prosecute any person who had regular or repeated companionship with one or more ‘reputed’ criminals, known prostitutes or convicted vagrants.129 Police could attest to the fact that a person was a reputed criminal. The degree of ‘consorting’ required to establish the offence depended on the circumstances.130 The consorting law is more of a public order power than a criminal investigation power, but the events of 1947 are a good illustration of some of the points made above about law and policing in this period.
The debate was kicked off by Mr Shannon MLA. He alleged that the consorting laws were being put to improper use by the NSW Police Force. His complaint was that the laws were being used to lay charges where one person with minor convictions had been with another person with minor convictions (or no conviction), when both had been acting in a law abiding, legitimate and peaceable manner.131
Eschewing the dominant ‘rotten apple’ theory, Shannon noted the relationship between improper use of the consorting laws and the fact that he had been ‘assured by policemen that unless they obtain a certain number of arrests they are called before the superintendent or the inspector of police and admonished’.132
129 See paragraph 4(1)(j) of the Vagrancy Act 1902 as inserted by the Vagrancy (Amendment) Act 1929. 130 See Goran (1951: 256). 131 LA v 2/184 at 9-12 (28 May 1947). 132 LA v 2/185 at 179 (2 October 1947). 46
Shannon suggested that the law be amended to allow it to be used only in respect of persons sentenced to imprisonment at least twice.133
Both the Daily Mirror and Daily Telegraph newspapers came out in defence of police, denying that consorting powers had been abused and opposing legislative amendments. The Daily Mirror argued that ‘relaxation of the provisions of the Consorting Act would be welcomed by only one class in the community - habitual criminals’.134 The Daily Telegraph editorialised in terms reflecting many of the themes outlined above - faith in police, reliance on courts, the rotten apple paradigm:
No police squad can be a “law unto itself” in this community where any citizen is guaranteed the right to appeal to the courts for protection. Certainly he would have the whole judiciary very indignantly on his side if he was able to prove that policemen had broken into his home without a warrant. True, there are bad policemen as well as good, law-abiding, courteous ones. …because we have good courts, uninfluenced by any political or sectional interests outside, the citizen is assured that any mistakes of the policeman will be corrected.135
Police Commissioner MacKay responded to Shannon’s claims that police were misusing the consorting law with the disingenuous comment that ‘police did not interpret the Act. They only enforced it. Interpretation was made by a court’.136
Subsequently, proposals to confine the consorting law to more serious offences were taken to State Cabinet by the Colonial Secretary. The Cabinet also
133 LA v 2/185 at 182 (2 October 1947). 134 DM (1947: 29 May at 2). 135 DT (1947: 4 October).
47
considered a report from the Police Commissioner on the topic, and the proposals were not pursued.137
A second episode that illustrates the limited debate about the law of criminal investigation is the case of David Studley-Ruxton in 1954. Studley-Ruxton alleged that he had been unlawfully detained by NSW police, prevented from communicating with a lawyer or friend, threatened, savagely beaten for refusing to sign a false confession, and pressured by an Inspector not to reveal the incident. After the Daily Telegraph gave extensive coverage to these allegations, Premier Cahill announced a Royal Commission into the matter to be conducted by Justice Dovey.138
The Commission’s terms of reference directed Justice Dovey to inquire into the specific facts surrounding Studley-Ruxton’s allegations. Justice Dovey was given no instruction to consider the cause of any police wrongdoing, if established; or whether it might be symptomatic of a broader problem.139
In his report, Justice Dovey rejected most of Studley-Ruxton’s allegations, although he did express ‘more than a slight suspicion’ that police had inflicted bruises to Studley-Ruxton’s face and upper arms. Justice Dovey’s hypothesis as to why this happened was rooted firmly in the specific circumstances of the incident. Studley-Ruxton’s ‘arrogance and insolence’ had been, Dovey concluded, what had led the officers to slap his face and firmly grasp his arms.140
In the aftermath of the Studley-Ruxton affair, two contributions to Parliamentary debate served to highlight the way in which the ‘rotten apple’ paradigm of police misconduct led to the conclusion that the Government and the Parliament had little responsibility in such matters.
136 DM (1947: 30 May at 2). 137 LA v 2/185 at 705 (29 October 1947), DM (1947: 19 November at 5). 138 Dovey (1954: 11-14). 139 Dovey (1954: 3).
48
Six weeks after the report of the Dovey Royal Commission, Attorney-General Sheahan argued that the Studley-Ruxton case had illustrated why a Royal Commission was an inappropriate forum for addressing allegations of police misconduct. Sheahan referred to misconduct allegations that had been the subject of civil proceedings during the life of the previous Government, and went on to argue that:
The ordinary processes of the law were used then and those same processes are available for use now by any litigant. Why are there these demands for royal commissions? The law can meet the situation… if we want to give justice to one and all, and show malice to none, let us invoke the ordinary processes of the law.141
These comments revealed a presumption that the only issue arising out of a misconduct allegation was the culpability of the officer involved, a matter best dealt with in an adversarial contest. No potential for institutional failings or force- wide reform was acknowledged.
The following month a reform proposal was, in fact, put forward in the Legislative Assembly. Dr Parr MLA expressed concern about the large number of unresolved allegations of police misconduct, arguing that this was inimical both to public confidence and police morale. In proposing a solution to this problem, Dr Parr began by arguing that the ‘fault lies, basically, not with the individual policeman, but with the police administration, which has failed to inspire them or to engender public trust’. Parr challenged the complacency about Parliament’s responsibilities in arguing that Parliament was ‘the only authority that can control the police force’.
140 Dovey (1954: 22-3). For further discussion of the facts and implications of the Studley-Ruxton affair, see Finnane (1994: 87, 168-69). 141 LA v 3/9 at 444-49 (15 September 1954). 49
Dr Parr proposed legislation to render inadmissible in evidence any statement allegedly made by the accused, other than ‘in the presence of a specified witness, such as a clergyman, a medical practitioner, a solicitor, or a retired magistrate’. He also proposed that each person in custody would be inspected by a rostered medical practitioner, shortly after arrest; and by a rostered clergyman, during each day in custody.142
Dr Parr’s proposal attracted a surprising response from one of the key figures in the Studley-Ruxton affair, Mr John Poole, solicitor for David Studley-Ruxton. Poole’s active pursuit of publicity and forceful presentation of his client’s allegations made him a highly partisan figure in the controversy. Yet despite these credentials as a fighter against police malpractice, Poole was no supporter of Parr’s reform proposal:
It would be a confession of defeat inasmuch as it would stand as a permanent criticism of the Police Force as such by the implication that the Police are never to be trusted… It is only the present administration and a percentage of the present police officers who are under a cloud of suspicion. They cannot last for ever and sooner or later they will be replaced.143
Dr Parr’s proposal got no further, not surprising when even someone like Poole was so strongly wedded to the rotten apple paradigm.
Another controversy erupted in August 1958, when a Government member of the Legislative Council, and Labor Party member of 52 years, made a number of serious allegations against NSW police. The Hon Gertrude Melville, noting the ‘general belief that many innocent people are arrested and sometimes intimidated into signing statements and pleading guilty’, went on to allege instances of
142 LA v 3/10 at 1090-91 (19 October 1954). 143 LA v 3/10 at 1122 (Quoted by Mr Evelyn Darby, 20 October 1954). 50
baseless arrests, withholding of exculpatory evidence, and the assault of suspects.144
Melville offered a more sophisticated analysis than the rotten apple paradigm, in particular by suggesting that judicial complicity was a major contributing factor to police misconduct. She alleged, for example, that the night before the hearing of an appeal against a drink driving conviction, the judge who was to hear the case attended a party for the convicting magistrate, attended by the prosector, the local inspector of police, and a number of prosecution witnesses. She alleged that this was symptomatic of widespread partiality towards police and police evidence on the part of the magistracy, exemplified by the fact that ‘one magistrate in Sydney has the nickname of ‘Sergeant’, implying that he is the honorary holder of that rank in the police force’.145
Melville argued that judicial bias towards police and prosecution resulted from the fact that magistrates were drawn from the ranks of clerks of petty sessions, a group who typically ‘have been associated with police - particularly in country areas - all of their working lives, both on and off the job’.146 Melville’s analysis was consistent with the findings of later studies of the workings of the NSW magistracy, especially in rural areas.147
Melville proposed that private lawyers be eligible for appointment to the magistracy and that police promotion criteria be amended to emphasise ‘ability, education and fitness’.148 While Melville’s account departed from the simple ‘rotten apple’ paradigm, a simplistic analysis of police misconduct remained predominant in the response to Melville’s allegations.
144 LC v 3/24 at 215-18 (27 August 1958). 145 LC v 3/24 at 216-17 (27 August 1958). 146 LC v 3/24 at 217 (27 August 1958). 147 See, for example, NSW Anti-Discrimination Board (1982: 144-49) and Golder (1991: 172). 148 LC v 3/24 at 218 (27 August 1958). 51
In moving an Opposition motion calling for a Supreme Court judge to inquire into the allegations, the Hon HJR Clayton said that ‘black sheep’ were ‘found in every section of the community… a Royal Commission states whether or not corruption has taken place… A Royal Commission would, I am sure, reaffirm confidence in our police force’.149 Speaking in favour of the motion, the Hon C E Begg said: ‘We are concerned here not with indicting the police force of New South Wales, but [only with those elements that] should be rooted out from the police force’.150
The Daily Telegraph, though it gave Melville’s allegations much credit and savaged the Government’s failure to hold an independent inquiry, also proceeded on the basis of the rotten apple paradigm. If the allegations were upheld, it argued, the Government could ‘by the resulting purge restore public confidence’.151
As in the Studley-Ruxton affair, Attorney-General Sheahan expressed complete faith in court processes. One case mentioned by Melville (involving her son) in which damages had been awarded as a result of police misconduct had shown ‘to the full the resiliency, the common sense and effectiveness of the law as it operates in British communities’. Sheahan concluded that complaining to a Minister about police misconduct was an entirely improper course of action.152
Keen as the Opposition was to make political capital at the Government’s expense, at no stage did it suggest that the Government’s responsibilities went beyond holding an inquiry into the specific charges that had been made, so that the guilty would be punished and the innocent cleared.153 Similarly, Premier Heffron reported that he had told the Police Commissioner ‘If you can find
149 LC v 3/24 at 467-68 (4 September 1958). 150 LC v 3/24 at 477 (4 September 1958). 151 DT (1958: 3 September at 1). 152 LA v 3/24 at 667 (16 September 1958). 153 See, for example, LA v 3/24 at 301 (Mr Morton, Opposition Leader, 28 August 1958), 334 and 344-45 (Mr Morton, Opposition Leader, 2 September 1958) and 420-21 (Mr Askin, Deputy Opposition Leader, 3 September 1958). 52
anyone who has transgressed the law, don’t spare him at all’.154 The Government refused an external inquiry.155 Reform, including law reform, was not in issue.
Sources of Debate
The suggestion by Dr Parr MLA that an independent witness be present during the taking of a confession illustrates that some reform proposals were put forward in this period. What led to these proposals being put forward? What were the sources of debate?
Evidence of visible harm caused by police (for example, a bashing in police custody) was one thing that could generate some sustained debate about police practices. Allegations against police by members of the middle class were another. It was (and remains) the case that better off and better educated members of the community are more likely to pursue grievances against the police through formal channels, and are more likely to be believed when they do so. Generally speaking, policing impacts largely on socially and economically marginalised sections of society.156 It is no coincidence that the area of criminal investigation with the greatest direct impact on the middle class, namely enforcement of the drink driving laws, also produced the most sustained public debate about policing and law reform of this period. This is a point to which we will return shortly.
Thirty years before the enactment of rules to govern the destruction of fingerprints was to receive close attention, a Randwick accountant caused a stir by demanding that his prints be destroyed after his acquittal for tram foot-board riding. Many non-professionals must have been fingerprinted and then acquitted before and after this case, but only where the person involved came from such a background
154 LA v 3/24 at 343 (3 September 1958). 155 ‘Ministerial Statement’: LA v 3/24 at 338-43 (2 September 1958). 156 Reiner (2000: 127-34), Finnane (1994: chs 4 and 6), NSW Anti-Discrimination Board (1992). 53
was the matter pursued with police and press. The Police Force advised that following acquittal, fingerprints could be destroyed on written application.157
Police actions were sometimes criticised precisely because the subjects of those actions were ‘respectable’. In December 1946, the newly appointed Mobile Squad was criticised for exercising enforcement powers designed to suppress vice and gambling, against ‘decent and respectable citizens’.158 In March 1947, police were criticised for arresting a ‘reputable Newtown citizen’ on drunkenness charges. She was in fact, suffering from ulcers, which led to a proposal that it should be the duty of police to provide a doctor if the person arrested requested one and (being a respectable citizen) could pay for the doctor’s attendance.159
In 1951 Mr Shannon MLA (who had raised the earlier concerns about the consorting law), complained to Parliament of the conditions in a police watchhouse on a Saturday night, where men arrested for drunkenness were ‘herded together’, and prohibited from calling home. Among the thirty men placed in a cell, some used ‘objectionable language and behaviour’ and treated the floor of the cell as a lavatory. Shannon’s point was that there should be a policy of segregation so that ‘the better types will receive more humane treatment’.160
A third source of debate about criminal investigation powers were lobbying efforts by police. There are two interesting points here. Police Commissioners were capable of securing reform, at least on a minor scale. A notable example was the conferral of palmprinting powers in 1951, a reform that occurred largely at the behest of the NSW Police Commissioner. At the 1946 conference of Australian Police Commissioners, there was discussion of the benefits of palmprints as an alternative to fingerprints as a form of identification. Following the conference, NSW Commissioner MacKay wrote to the Under Secretary of the Premier’s
157 DT (1946: 1 June at 10). 158 LA v 2/182 at 549 (Mr Geraghty, 4 December 1946). 159 LA v 2/183 at 1228 (Mrs Fowler, 11 March 1947). 160 LA v 2/195 at 2172-74 (22 May 1951). 54
Department seeking support for amendments to authorise the palmprinting of persons in custody. Four years later, amendments were enacted.161
On the other hand, the paucity of public proposals from police concerning their powers was central to the overall lack of debate. Finnane has shown that both Police Commissioners and police unions have a long history of involvement in political debate and law reform lobbying in Australia, in each case extending back well before 1945.162 However, both the NSW Police Force and NSW Police Association were generally ‘quiet’ on the question of criminal investigation law prior to the 1970s. The main focus of the Police Association in this period was on industrial matters, and also on the fundamental question of the right of police to participate in political debate and activity.163 Until 1956, NSW police were required by the Police Rules to remain neutral in political matters and could not take a ‘prominent part’ in political activities or pay money to any political organisation.164
Judicial decisions and comments provided a fourth catalyst for debate. In Ex parte Evers; Re Leary,165 for example, Justice Maxwell reaffirmed the common law rule that suspects could not be detained for questioning. This prompted the Australian Law Journal to question ‘whether in some respects and in relation to some offences the law is not too liberal to the wrongdoer’.166
A more direct intervention came from the NSW Chief Justice (Kenneth Street) in 1953, when he wrote to the Attorney-General proposing the amendment noted previously, under which an admission induced by an untrue representation would be inadmissible only if made by a person in authority.167 The Chief Justice’s
161 Commissioner of Police to Under Secretary, Premier’s Department 11 February 1947 (NSW Archives Box 12/5486.2). 162 Finnane (1987; 2000a: 14). 163 Brien (1996: ch 4). 164 Brien (1996: 93). 165 (1945) 62 WN (NSW) 146. 166 ALJ (1945). This was not the last time that suspected wrongdoers would be characterised simply as wrongdoers. 167 Chief Justice to Attorney-General, 6 July 1953 (NSW Archives Box 12/5486.3). 55
views clearly counted with the Attorney-General, who took the matter to Cabinet the following month recommending legislation at an ‘early date’.168 In the Parliamentary debate on the amendment, the Attorney-General quoted at length from the Chief Justice’s letter to him.169 In an era where legal regulation and controlling police misconduct were largely left to the judges and magistrates, their views on matters of law reform were highly influential.
From time to time, judges and magistrates engaged in public advocacy of more controversial proposals. In April 1949, Stipendiary Magistrate Berry called for the fingerprinting of all babies soon after birth, as a ‘better check on criminals’.170 The proposal received the enthusiastic support of the Police Commissioner,171 but went no further. In dismissing carnal knowledge charges in 1965 and in rejecting alleged admissions to police, Redfern magistrate J Letts suggested that an independent witness should be present whenever a suspect made a statement to police.172
The most intense debate about NSW criminal investigation law in the two decades after 1945 was triggered by a set piece event, namely a two week seminar held in Canberra, on ‘the Role of the Police in the Protection of Human Rights’. The seminar was organised jointly by the United Nations and the Commonwealth Government and took place between 29 April and 13 May 1963. Most participants were from the senior ranks of the judiciary, government legal offices and the police. Among the official participants from NSW were Mr Justice McClemens of the Supreme Court, Mr Snelling QC the State Solicitor-General, Police Commissioner Norm Allan, and Mr Roulston from the University of Sydney Law Faculty.173
168 Minute for Cabinet - Section 410(1) of the Crimes Act 1900: Confessions (NSW Archives Box 12/5486.3). 169 LA v 3/8 at 200 (31 March 1954). The amendment to section 410 of the Crimes Act 1900 was made by section 2 of the Crimes (Amendment) Act 1954. 170 DT (1949: 28 April at 13). 171 DM (1949: 28 April at 3). 172 DT (1965: 10 June at 2).
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Seminar participants were given the task of discussing a long series of topics and questions, speaking from the perspective of their own understandings and experiences. Among the extensive list of topics and questions for discussion were the following:
Finger-printing: Should there be national compulsory fingerprinting of all persons? Would this offend human rights? If so, which?…
Confessions and admissions. The general problem of “the third degree”, of preventing techniques of interrogation that infringe human rights…
Wire-tapping and similar investigative techniques. In what circumstances is wire-tapping permissible in the detection of crime and in what ways should the practice be circumscribed?174
The discussion of these issues was given ‘considerable prominence in the daily press’ and provoked reactions from community groups, lawyers and the highest levels of the NSW Government.175 The leading controversy concerned the tapping of telephones. Early in the seminar, Justice McClemens called on Australian Parliaments, Commonwealth and State, to legislate to allow police to tap telephones, subject to authorisation by a superior court judge. McClemens argued that tapping powers should be available in respect of serious offences, including kidnapping, treason and drug dealing.176
Perhaps emboldened by McClemens’ effort, Police Commissioner Allan argued that police needed powers to intercept communications by telegraph, telephone and mail, in the investigation of a wide range of offences.177 Most seminar participants favoured legislation to permit police to tap telephones in respect of
173 United Nations (1963: 1-2). 174 Drawn from United Nations (1963: 7-11). 175 The quote is from Bar Gazette (1963: 4). 176 DT (1963: 4 May at 5). 177 DT (1963: 7 May at 9). 57
‘heinous’ crimes such as kidnapping, blackmail and narcotics trafficking.178 Commonwealth Police Commissioner Ray Whitrod specifically backed Allan, arguing that most people would support telephone tapping by police, to combat the ‘forces of evil’.179
Outside the seminar, however, the response to Commissioner Allan’s proposal was overwhelmingly negative. Allan received a telephone call from Acting Premier Jack Renshaw, demanding that he explain his comments. Renshaw then went public, describing Allan’s proposal as ‘repugnant’. Renshaw insisted that the Government had not considered, and had no intention of considering, the conferral of telephone tapping powers on NSW Police.180
Others joined in the attack on Allan’s proposals. The master of Wesley College at the University of Sydney suggested that empowering police to tap telephones would bring NSW ‘very near fascism’. 181 The Bishop of Newcastle later warned that telephone tapping by police would ‘create fears and suspicions, encourage informers and create the atmosphere of a police State’.182 The Daily Telegraph ran an editorial declaring that:
The impression is that in every discussion the police regard it as their duty to oppose the extension and preservation of citizens’ rights… Mr. Allan and his colleagues should be reminded that more than 90 per cent of the public are law-abiding citizens, and that police… should be as deeply concerned with the preservation of natural rights as anyone… Wire tapping is justifiable only where national security is involved…183
178 United Nations (1963: 36-37). 179 SMH (1963: 7 May at 11). 180 DT (1963: 8 May at 11). 181 DT (1963: 8 May at 11). 182 SMH (1963: 5 June at 8). 183 DT (1963: 8 May at 2). 58
The next day the Daily Telegraph congratulated the acting Premier for rebuking Allan’s proposal, and argued that the rebuke ‘should make police commissioners and others realise they are out of touch with public opinion’.184 Renshaw gained good press out of the incident, as exemplified by the article that appeared in the Sunday Mirror the weekend after the seminar, entitled ‘The man who said no’. The by-line read ‘A NSW Minister to watch is the one who ruled out phone eavesdropping’.185 The Sydney Morning Herald editorialised that ‘(t)he repugnance felt by the NSW Deputy Premier for the concept of telephone tapping is surely shared by the great majority of Australians’. It went on to warn that ‘the dangers inherent in wire-tapping, even if closely controlled, are too great to be accepted’.186
It would ultimately take twenty-four more years for NSW Police to secure the powers that Allan had sought.187 In the mean time, however, Allan had decided that telephone tapping was desirable even if law reform was unachievable. He secretly established an illicit telephone tapping unit in the Force.188
Further contention emerged from the seminar when two Supreme Court Justices, Justice Barry from Victoria and Justice McClemens from NSW, proposed new rules to ensure the accuracy and authenticity of statements allegedly made to police.189 Justice McClemens proposal was that all statements either be tape recorded, or be taken down by a licensed shorthand writer.190 Commissioner Allan came out strongly against the proposal, alleging that taping would be unworkable in practice, citing circumstances in which a statement might be taken in urgent circumstances or a remote location.191 The seminar report accepted the
184 DT (1963: 9 May at 2). 185 Sunday Mirror (1963: 12 May at 11). 186 SMH (1963: 9 May at 2). 187 Telecommunications (Interception) (New South Wales) Act 1987 and Telecommunications (Interception) Act 1979 (Cth). 188 See further, chapter 8. 189 See, for example SMH (1963: 2 May at 1; 3 May at 2, 8). 190 SMH (1963: 2 May at 1), DT (1963: 2 May at 9). 191 DT (1963: 3 May at 7). 59
Allan view, indicating that it had been ‘found’ that taping would be impracticable in many circumstances.192
The response to the proposal outside the seminar was mixed. The president of the NSW Bar Association saw merit in the proposal, but worried about hampering police investigations.193 The letters page of the Daily Telegraph carried an eminently sensible suggestion from a correspondent, namely that tape recording be undertaken where practicable, with an unexplained failure to tape record being taken into account by the jury in deciding what weight to give the statement.194 The Daily Telegraph ran an editorial in support of the recording proposal, which argued that:
There have been too many cases where police have recited in court alleged conversations with accused persons, couched in formal language that the person would never have used. And there have been too many cases where it has been alleged that police have used violence in interrogation. In view of these suspicions, police chiefs should welcome any method of recording an interview which would be absolutely faithful and would absolve the police of any suspicion of improper methods.195
A subsequent report in the Daily Telegraph wryly noted that it was ‘significant that the police want to adopt modern ‘scientific aids’ in the matter of wire tapping but oppose them when it comes to the tape-recording of police interrogations’.196
The seminar, and the debates that it sparked, are perhaps most interesting for the broader trends and themes thereby illuminated. Three, in particular, are worth
192 United Nations (1963: 32). 193 DT (1963: 2 May at 1). 194 DT (1963: 7 May at 2). 195 DT (1963: 3 May at 2). 196 DT (1963: 8 May at 2). 60
noting: police advocacy of reform; judicial advocacy of reform; and press attitudes towards crime and policing.
Police advocacy of reform is likely to have been set back by the reaction to Commissioner Allan’s telephone tapping proposal. He was reported to have told a journalist that the backlash he faced was ‘sickening’ and to have added: ‘Imagine the sort of reception I’ll get in Sydney. People will think I’m a fool!’. It was also reported that he slumped into an embarrassed silence for several days, a claim consistent with his lack of public statements during the latter part of the seminar.197
The drama generated by Commissioner Allan’s tapping proposal is in itself indicative of the rarity with which such proposals were put forward by senior police in the 1950s and 1960s. Commissioner Allan himself kept quiet on police powers issues for several years after his 1963 embarrassment. Allan’s successors in the position of NSW Police Commissioner were to remain relatively silent on such issues until the early 1980s when Commissioner Cec Abbott became a persistent advocate of greater police powers to combat organised crime and drug trafficking.198
Whereas Commissioner Allan’s comments were a novelty, Justice McClemens’ advocacy of telephone tapping powers (and of the recording of statements to police) was more typical. Until the last decade, judges and magistrates were frequently the major advocates of criminal investigation law reform in NSW.
The greater civil libertarianism of the daily press compared to more recent times was related to the relative complacency about crime, ironically underpinned by the concealment of the extent of crime by the NSW Police Force. Neither Commissioner Allan nor Justice McClemens based their argument in favour of telephone tapping on the need to cope with rising crime. Rather, they spoke of the
197 Sunday Mirror (1963: 12 May at 11). 198 Significantly, Abbott had previously been head of the Drug Squad. 61
need to cope with existing crimes committed by increasingly sophisticated criminals.199
For much of the 1950s and 1960s, the Daily Telegraph was frequently an advocate of civil liberties and a critic of police. It championed a number of those who challenged police abuses of power, including David Studley-Ruxton in 1954 and the Hon Gertrude Melville in 1958. It has been suggested by police historian Mark Finnane that the Telegraph’s criticism of police reflected, to some extent, antipathy towards the Labor Government.200 However, in its response to the Norm Allan telephone tapping proposal, the Telegraph was siding with the Labor Government against the Police Commissioner. A consistently libertarian outlook on the question of law of reform was in evidence. As late as 1969, for example, the Telegraph described random breath testing as a ‘panic measure’ that would place ‘frightening powers of harassment in the hands of the police’.201
The strength of civil libertarian sentiment led one Melbourne psychiatrist to suggest in 1963 that Australians were collectively suffering from ‘madness in the direction of freedom’.202 The madness had little method. The protection of liberties rested in trust in police and reliance on the courts, both flawed strategies, as we will see in later chapters. A legalist conception of liberties was paramount. This denied police formal powers for which a sound case could be made without offering substantive rights and protections to those subject to police investigations. The potential role of legislation was largely ignored, with one notable exception: the question of powers for testing for intoxicated motorists.
199 SMH (1963: 7 May at 11). 200 Finnane (1994: 169). 201 DT (1969: 20 January at 2). The Sydney Morning Herald also editorialised against random tests: SMH (1972: 7 June at 6). 202 DT (1963: 3 May at 7). 62
Testing the Drunken Driver
The leading controversy about police powers of criminal investigation in NSW, in the years from 1945 to 1968, was about whether police should be able to administer a blood test or breath test to an apparently intoxicated driver, in order to scientifically assess that level of intoxication. This debate ultimately resulted in the first major reform to police powers of criminal investigation in the years since 1945. This section examines this history of debate and reform, the reasons why the debate occurred, and the reasons why reform was so long delayed but was ultimately secured.
Since the invention of the motor vehicle, the deaths, injuries and damage associated with careless driving have posed a major problem for criminal justice authorities around the world. As Finnane noted in 1994:
The brutal fact of twentieth century urban and rural life in Australia has been the extremely high risk of death and serious injury on the roads, particularly when compared with the low risk of homicide or manslaughter from other causes.203
For much of the twentieth century, the number of deaths and injuries on NSW roads grew year after year. Rising levels of vehicle ownership and use played a major part in this, fuelled by declining vehicle costs, increasing incomes, a growing desire to enjoy the freedoms associated with motor vehicle ownership, and the decentralisation of urban areas.204 The number of people killed in motor vehicle accidents in NSW rose from 51 in 1920, to 358 in 1930, stabilised to 369 in 1944 and then rose sharply to 509 in 1947. By 1950/51, when statistics were kept on a
203 Finnane (1994: 100). 204 Stubbs (1972: 1-30). 63
July to June basis, the toll had risen to 699 fatalities, by 1960/61 it would be 934 fatalities, and by 1967/68, 1174 fatalities.205
The fall in the road toll during the war years made the quick rise thereafter particularly noticeable. In 1946, the NSW Police Department Annual Report described the increase in the number of accidents as ‘grave’, and reported that it was actively working with the NSW Road Safety Council to find ways to reduce the road toll.206
In October 1947, Opposition MLA Lieutenant-Colonel Robson moved a motion in the Legislative Assembly calling for the appointment of a Parliamentary Select Committee ‘to inquire into and report upon means of minimising the appalling road accident casualty rate’. Robson made particular note of the significant increase in the number of casualties since 1945.207 During the debate, which resulted in the Government agreeing to the appointment of such a Committee,208 drunken driving was mentioned by some as a significant cause of accidents,209 along with speeding,210 poor roads,211 and ill-conceived road rules.212 During the hearings of the Select Committee that was established, Police Commissioner MacKay listed drunken driving as one of the three major accident causes, along with speeding and discourtesy.213
205 Sources: Police Department (1921; 1931; 1945; 1948), Commissioner for Road Transport and Tramways (1951), Commissioner for Motor Transport (1961; 1971). 206 Police Department (1948: 7). 207 LA v 2/185 at 472-73 (21 October 1947). 208 LA v 2/185 at 672 (28 October 1947). 209 LA v 2/185 at 480-81 (Lt-Col Bruxner, 21 October 1947) at 490-91 (Mr McCaw, 21 October 1947) at 650-51 (Mr Robertson, 28 October 1947) at 655-56 (Mr Darby, 28 October 1947) and at 667 (Mr O’Sullivan, Minister for Transport). 210 See, for example, LA v 2/185 at 473-76 (Lt-Col Robson, 21 October 1947) and at 486 (Mr Hawkins, 21 October 1947). 211 See, for example, LA v 2/185 at 482 (Mr Clyne, 21 October 1947) and at 484 (Mr Hunter, 21 October 1947). 212 LA v 2/185 at 490 (Mr McCaw, 21 October 1947). 213 Road Accident Casualties Committee (1948: 7). 64
The National Roads and Motorists Association (‘NRMA’) agreed.214 Drunken driving could be difficult to prove, generally depending on the subjective assessment of a police officer against the word of a motorist who might deny that he or she was affected by alcohol. A Thirroul constable gave examples of some of the problems, from a police perspective, in 1950:
Quite often a Policeman arrives at the scene of the accident to find the drunken driver in the ambulance or on his way to hospital… the Policeman usually receives a medical report to say that there are some signs of alcohol on the injured man, but owing to the presence of shock, which causes similar symptoms, it is not possible to state definitely how much, if at all, he was affected.
On frequent occasions the driver, when spoken to by Police, is able to pull himself together so effectively that the Constable is loathe to take any action, knowing that he has little chance of obtaining a conviction…215
Police sometimes complained that because of defence challenges to evidence of intoxication, it was effectively police who were on trial, rather than the defendant.216 NSW police were not alone in this experience. Dr John Birrell, Victoria’s first full-time police surgeon and an early campaigner for testing powers in that state, later recalled that police faced a very heavy onus to secure a drink driving conviction. Judges and barristers were themselves social drinkers, so a conviction was unlikely unless police could prove that a person was as ‘full as a boot’.217
214 See NRMA President Davidson to Premier McGirr, copy to the Premier’s Department, 28 April 1950 (NSW Archives Box 12/5486.3). 215 Dawson (1950). 216 See, for example, Mulvaney (1950). 217 Miller (1999: 7). 65
Defence counsel certainly did attack police evidence, such as in 1948 when a barrister told a Sydney court that:
the police formula for drunken driving charges was so well known to the legal profession that they were able to forecast the evidence before they entered court. This formula… comprised bloodshot eyes, flushed face, thick speech, unsteady gait, and breath smelling strongly of liquor.218
Another barrister, in a 1947 case, alleged that ‘it happens too often that, for some reason, doctors cannot be procured when required by an accused’.219
The Road Accident Casualties Select Committee of 1948 recommended that a medical examination should be offered to any person about to be charged with driving under the influence.220 There was no recommendation for testing powers, although there were already some reports of their use overseas. In January 1946, the NSW Police News detailed how drivers involved in accidents in Washington DC were now required to undergo laboratory tests for the presence of alcohol in their systems, the results of which could be used as evidence of drunken driving.221
The following year, a delegation from the NSW Temperance Alliance called upon the Acting Transport Minister, to lobby for the enactment of legislation to provide for the blood testing of drivers involved in road accidents, to determine the driver’s level of intoxication. The delegation pointed to the use of breath testing before the war in Germany, Norway and Sweden, and also to a Queensland study that had found 30% of motor vehicle accident fatalities to have had alcohol in their systems.222
218 Sun (1947: 7 May at 3). 219 NMH (1947: 13 March at 2). 220 Road Accident Casualties Committee (1948: ix). 221 NSW Police News (1946: January at 41). 222 SH (1952: 18 November at 5). 66
In 1948, it was reported that a ‘drunkometer’ had been developed. This was a bag into which a person would be asked to breathe, containing chemicals which would react in accordance with the blood’s alcohol content.223 Two years later, a NSW judge returned from the United States with news of a new machine that could measure a person’s blood alcohol level. An impressed colleague urged the NSW Police to ‘buy or even borrow’ the technology. Police Commissioner Scott initiated inquiries in the United States about the effectiveness of the device.224
The technology being employed overseas was still novel and experimental. A Department of Motor Transport official later recalled that introduction of compulsory testing was considered in 1947, but was rejected because of medical opinion that the tests were not accurate.225 Another limitation on the prospects for the introduction of testing powers was the widespread belief that those who could ‘hold their liquor’ would be relatively unaffected by moderate drinking, and should not be penalised. For example, in 1948 it was reported that the ‘drunkometer’ had revealed that American men became impaired after 6 bottles of beer or 6 whiskies, which pushed their blood alcohol level to 0.15%. One Sydney publican commented that such quantities were ‘just a good drink to the average healthy Australian’. Another said that he would back many of his customers to drink twelve bottles of beer and still be sober, and that retired men drank ‘a dozen whiskies’ at his hotel every evening ‘to give them an appetite for dinner’.226
Another factor inhibiting moves towards chemical testing was the reticence of senior police to back the cause. Commissioner MacKay was dismissive of the idea before the Road Accident Casualties Select Committee, indicating that there was no satisfactory scientific test available.227 While the NSW Police
223 DT (1948: 5 April at 3). 224 SMH (1950: 27 April). 225 SH (1952: 18 November at 5). 226 DT (1948: 5 May at 3). 227 Road Accident Casualties Committee (1948: 8). 67
Superintendent of Traffic promised to ‘show no mercy’ to drunken drivers,228 his response to reports of the drunkometer was that ‘we don’t need one’.229 This illustrates the point that there is nothing inevitable about police seeking extra powers, just as the reaction to the 1963 United Nations seminar shows that it is not inevitable the tabloids will support new powers. It depends on the operative paradigms of crime, policing and law.
By 1951, Penrith Stipendiary Magistrate AE Stonham was among those concerned about the problem of drunken driving, prompted by the large numbers of such cases that came before his court. He undertook research that confirmed intoxication was a major cause of accidents, that moderate intoxication impaired driving ability, and that compulsory chemical testing of motorists could help to curtail this problem.230
The premise that moderate levels of intoxication consistently led to impaired driving ability suggested that a fixed maximum blood alcohol limit was legitimate. A fixed limit would in turn necessitate chemical tests to determine compliance with this limit. Stonham recognised this, and proposed testing by a Government Medical Officer or private medical practitioner.231
The interdependence between a prescribed content offence and testing powers is a notable illustration of Alldridge’s argument that ‘(w)hat can be done procedurally will affect what can be prohibited substantively, and what is prohibited substantively will affect the procedures which are to be adopted’. In this case, the questions of criminal law reform and criminal procedure reform were inseparable.232
228 SMH (1949: 15 September at 3). 229 DT (1948: 5 April at 3). 230 See Sun (1951: 5 November at 13), Stonham (1953). 231 Sun (1951: 5 November at 13). 232 Alldridge (2000: 117). 68
Stonham presented his findings to the 1951 annual conference of magistrates.233 The NSW Government later responded to pressure from Stonham and other magistrates, setting up a committee chaired by Stonham to examine the merits of introducing compulsory blood tests for those suspected of driving under the influence of alcohol. The Committee included representatives of the Director- General of Public Health, the British Medical Association (NSW), the NSW Police Force, the Department of Motor Transport and the NRMA.234 Representatives of the Justice Department, the University of Sydney, and the Temperance Alliance were later added.235
The deliberations of Stonham’s Committee took place against a backdrop of increasing attention to the problem of drunken driving. The NSW Police Force produced figures suggesting that alcohol intoxication was the primary cause of 1137 motor vehicle accidents in NSW during 1952, resulting in 537 injuries and 36 deaths.236 Some commentators suggested that these were under-estimates.237
The actions of the judiciary were also highlighting problems with drink driving enforcement. Under section 556A of the Crimes Act 1900, judges and magistrates had a discretion to find that a person was guilty of an offence but to decline to record a conviction. Magistrates had exercised this discretion in just 4% of ‘driving under the influence’ cases in 1939, but in 37% of cases by 1948.238 The NSW Police Force complained bitterly about this overuse of the ‘no conviction ‘ discretion.239
The Road Accidents Casualties Committee of 1948 had recommended that to curtail its use, section 556A should be amended so that the discretion could only
233 SH (1952: 16 November at 5). 234 SH (1952: 16 November at 5). 235 DM (1952: 4 December at 2). 236 NSW Police News (1953: April at 28). 237 Hansman (1954: 723). 238 Police Department (1949: 10). 239 Police Department (1950: 10; 1951: 10; 1952: 9; 1953: 10). 69
be exercised in favour of a driver once within 5 years.240 The amendment was enacted in 1952, but had little impact. Most people who came before the courts were ‘one offs’, leaving courts free to decline to impose a conviction. By the mid- 1950s magistrates were declining to impose a conviction in over 40% of drink driving cases.241
It was argued on behalf of magistrates that the heavy use of section 556A was a response to doubts about the reliability of police observational evidence of intoxication. Section 556A was said to offer a compromise between conviction and acquittal, where a magistrate remained in doubt about the credibility of police evidence.242 The resulting tension for magistrates, between their reluctance to acquit and the criticism they faced for the use of section 556A, helps to explain why many favoured testing powers and the objective evidence that would provide an alternative way out of this ‘ticklish problem’.243 This is an interesting example of the inter-relation of different aspects of the law of criminal procedure.
Magistrates were not alone in their unhappiness with police observational tests. They were variously described as ‘a danger to the innocent and advantageous to the guilty’244 ‘dangerous’245, and ‘totally inadequate’.246 From the police perspective, the limited credibility of their observational evidence was said to be a disincentive to intervene in many cases where they suspected drunken driving.247
Through the early 1950s, supporters of chemical testing continued to point to successful measures adopted overseas, including the use of voluntary testing
240 Road Accidents Casualties Committee (1948: p viii). 241 SMH (1954: 19 March at 2). 242 See SH (1952: 16 November at 5), SMH (1954: 18 March at 2), Open Road (1954: 1 June at 5). 243 DT (1954: 23 March at 13). 244 DT (1954: 18 March at 7). 245 ALJ (1954a). 246 SMH (1954: 18 November at 2). 247 SMH (1953: 17 April at 6; 1954: 18 November at 2).
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provisions in the United States,248 and compulsory tests in Norway, France, Germany and Canada.249
The Stonham Committee handed down its recommendation in March 1953.250 It proposed that where a police officer suspected a driver of being under the influence of alcohol, the officer could order the driver to undergo a blood test. If the test revealed a blood alcohol level above a prescribed maximum, the driver would be guilty of an offence.251 These proposals went to Cabinet twice but were ultimately rejected on the basis of the concerns of some Ministers about civil liberties and the prospect of a public backlash.252
The NRMA had been a key opponent of the proposals, as the sole dissenter from the Stonham Committee’s recommendations.253 The NRMA’s opposition, and that of others in the community, centred on the idea there was no necessary relationship between alcohol consumption and impairment.254 As one doctor put it, ‘the matter boils down to one of common knowledge and common sense: some people can carry their liquor, others cannot’.255 The NRMA argued that scientific tests would ‘not take into account the wide divergence of effect that alcohol has on different people’.256 It seems likely that the stance of the NRMA owed much to the self-perceptions of their members. Many people who would readily condemn those who drove when impaired by alcohol would believe that they could ‘hold their liquor’. This may have also been a factor in the decision of the Police Association to stay out of the debate, notwithstanding the efforts of some police to have it support calls for testing powers.257
248 NSW Police News (1954: August at 4). 249 Open Road (1953: 1 January at 10), Hansman (1954: 730-31), SMH (1954: 18 March at 2). 250 SMH (17 March at 1; 18 March at 2). 251 Open Road (1953: 1 September at 3). 252 Sun (1954: 3 June at 3; 15 October at 15), SMH (1954: 16 June at 17; 6 August at 9). 253 SMH (1954: 18 March at 2), DT (1954: 25 March at 8). 254 The same was true in Britain. See Light (1994: 20, 32). 255 SMH (1960: 20 October at 2). 256 DM (1954: 17 March at 3). See also Open Road 1953 (1 February at 3; 1 September at 3) and 1954 (1 May at 4; 1 June at 5; 1 September at 4), SMH (1954: 6 October at 6), DT (1954: 4 June at 3). 71
The first battle had been lost, but testing powers had found some energetic champions. In addition to Magistrate Stonham, there was Dr Frank Hansman, a Sydney pathologist who represented the British Medical Association (NSW Branch) on the Stonham Committee. In Britain, the British Medical Association was a leading player in efforts to secure the enactment of breath testing powers.258 Hansman’s efforts in NSW were more of a solo crusade, extending to newspaper interviews,259 using his membership of the NRMA to challenge that organisation’s opposition to chemical tests,260 and publishing an article in the Australian Law Journal on the science of testing.261
Stonham and Hansman spoke together at local Road Safety Council meetings,262 and travelled to the National Congress of the Australian Road Safety Council in Hobart in 1954 to argue that all States should introduce chemical testing.263 By late 1954, Stonham and Hansman could cite an impressive list of organisations that had expressed support for chemical testing. These ranged from the Kindergarten Union to the Department of Motor Transport, from the Institute of Optometrists to the Brewers Association, from the Taxi Cab Owners Association to the Federation of Parents and Citizens Associations, and many more besides.264
Following Cabinet’s rejection of testing powers in 1954, the Motor Transport Department developed a series of proposals for the introduction of blood alcohol testing on a voluntary basis. These proposals were taken to Cabinet on a number of occasions between 1954 and 1958, but were rejected on each occasion.265 In July 1959, the NSW Police Traffic Superintendent declared that compulsory blood testing of suspected drunken drivers was not under serious consideration.266
257 SMH (1953: 17 April at 6), NSW Police News (1953: August at 12, 46). 258 Light (1994: 18, 31-32, 55). 259 See, for example, SMH (1954: 18 March at 2). 260 See Open Road (1954: 1 June at 5). 261 Hansman (1954). 262 SMH (1954: 6 August at 9). 263 SMH (1954: 6 October at 6; 18 November at 2). 264 SMH (1954: 15 October at 4). 265 Sun (1954: 15 October at 15), SH (1956: 2 September at 20), SMH (1958: 21 July at 4; 18 November at 30; 21 November at 5), SMH (1959: 14 January at 1; 23 February at 5). 266 SMH (1959: 15 July at 6). 72
In October of that year, however, the NSW Council of Churches launched a new effort to secure support for testing powers. The President of the Council cited a recent public opinion poll indicating 76% support for the introduction of compulsory blood tests. The Council then convened a public meeting, which passed a motion calling on the NSW Government to make it an offence to drive with a blood alcohol level above 0.05% and to confer blood testing powers on police.267 Speaking at the public meeting, Anglican Bishop the Right Reverend RC Kerle characterised the road toll as a national crisis, for which personal liberty needed to be sacrificed to a degree.268
In the aftermath of the public meeting, the Congregational Union of NSW269 and the Seventh Day Adventist Church270 joined the calls for the introduction of compulsory blood tests. A minor controversy erupted when the Council of Churches revealed that Premier Heffron had, contrary to his public stance, written to the Road Safety Council a few months previously saying that he would give ‘full support to the introduction of legislation to bring about compulsory blood tests’.271
In January 1960, proposals for compulsory blood testing powers again went to Cabinet, with the strong support of the Road Safety Council but in the face of continued opposition from the NRMA.272 Opponents to testing were said to have been assisted by brewery interests, working behind the scenes.273 When Cabinet again rejected the proposals the churches maintained their lobbying effort.274 So
267 SMH (1959: 27 October at 6; 30 October at 11; 31 October at 10). 268 SMH (1959: 31 October at 10). 269 SMH (1959: 31 October at 10). 270 SMH (1959: 18 November at 27). 271 SMH (1959: 22 December at 9). See also SMH (1959: 31 October at 10; 18 November at 27; 22 December at 9; 23 December at 5). 272 SMH (1960: 19 January at 8; 26 January at 23), DT (1959: 30 October at 11), Open Road (1959: 1 December 1959 at 2). 273 LA v 3/37 at 1219 (Mr Lawrence, 28 September 1961). 274 SMH (1960: 18 October at 14; 1961: 22 September at 6). 73
did Dr Frank Hansman, who promised to give a large sum to charity if the NSW Government could produce a single scientific fact to discredit blood tests.275
The credibility of police assessments of intoxication continued to come under attack. It seems reasonable to surmise that this owed much to the middle class defendants commonly involved. They more commonly had access to lawyers, the media, and other networks, in which to pursue grievances against the police, than did the socio-economically disadvantaged groups who were usually subject to criminal investigation.
Allegations that police gave false testimony in court continued. The Hon Gertrude Melville’s list of allegations against the NSW Police Force had included the claim that as a result of false police testimony ‘many’ men had been wrongly convicted of drunken driving.276 In the same week, a North Ryde resident complained that after being wrongly alleged by police to have been intoxicated, he sought legal advice. He alleged that the lawyer advised that he:
had been hearing the same story for 30 years. He informed me that I’d done right to submit quietly for, if I had protested, my ruddy head would have been punched off…
Contesting the charge could cost me 100 pounds and a week away from work and I would not win because every policeman on duty in Central that night would unhesitatingly enter the box and swear that my speech was slurred and unintelligible, my eyes were glazed, and I was unsteady on my feet.277
In April 1960, a Belmore resident was awarded civil damages for malicious prosecution and false imprisonment, after the dismissal of charges of negligent
275 SH (1960: 27 October at 6). 276 LA v 2/34 at 218 (27 August 1958). 277 SMH (1958: 29 August at 2). 74
driving and driving under the influence against him. Judge Prior of the District Court, who presided over the civil proceedings, made comments from the bench which the Sydney Morning Herald paraphrased as follows:
It was a simple matter to say that the arrested person’s breath smelt of intoxicating liquor, his eyes were bloodshot, his face was flushed, his speech slurred and he was unsteady on his feet. Often it was said that an arrested person was assisted into the police station. On investigation this was found to mean that just as the arresting person was entering the police station, one of the arresting officers grasped him by the elbow, apparently for no reason at all and certainly not because he needed assistance.278
Judge Prior took the opportunity to call for a more ‘scientific’ method of testing, such as the breath testing apparatus used in Sweden.279
Interestingly, concerns about the credibility of subjective tests for intoxication do not appear to have played a major part in the debate about testing powers in Britain. There, before the enactment of testing powers, the assessment of intoxication was more commonly a job for a medical practitioner rather than a police officer.280
In NSW, proponents of testing played on concerns about wrongful police action by emphasising the role that tests could play in exonerating the innocent.281 Ironically though, test results were an increasingly common form of evidence by 1960 despite the absence of any legislative framework. It was reported that
278 SMH (1960: 29 April at 6). 279 SMH (1960: 30 April at 2). 280 Light (1994: 40-42, 47-48). 281 See for example, Dr F Hansman in Hansman (1954: 723, 725), Open Road (1954: 1 June at 5), SMH (1954: 13 August at 5; 18 November at 2), Mr Stonham in SMH (1954: 18 November at 2), ‘Government’ in DT (1954: 17 March at 9), Rev Dr E Watson, President NSW Council of
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‘hundreds’ of Sydney motorists were being convicted after having demanded blood tests in a state of drunken arrogance.282 One driver demanded a test, which revealed he had consumed the equivalent of 14 middies of beer.283 The way that blood tests gained in importance without need for legislation is an unusual illustration of the importance of policing by ‘consent’ as an alternative to the deployment of legal powers.
The Australian Senate helped to maintain public debate about possible measures to address the road toll, with a Select Committee inquiry on the subject which reported in 1960. Both the Committee’s hearings284 and its subsequent report285 generated considerable press attention in NSW. The committee recommended that ‘Chemical tests to assist in determining the degree of intoxication of drivers should be introduced on a compulsory basis’.286 The committee’s report quoted the United States Supreme Court to the effect that the ‘interests of society’ needed to be given greater weight than the ‘individual’s right of immunity from invasion of the body’.287 While the Federal Government emphasised there would be no Federal legislative intervention,288 it was nonetheless notable that a Senate Committee had strayed into an area so squarely within State responsibilities. It was a forerunner of many more Federal initiatives that would impact on NSW criminal investigation law.
A further external development with significant repercussions for NSW was the introduction of breath testing in Victoria. This was less invasive than blood testing, and therefore faced fewer objections. The Victorian Government trialed
Churches in SMH (1959: 27 October at 6), ‘Sydney doctors’ in DM (1960: 20 January at 4), and G T Ferris in SMH (1960: 1 October at 2). 282 ST (1960: 3 July at 7). 283 SMH (1960: 21 October at 6). 284 See, for example, SMH (1959: 15 July at 6; 16 July at 9), Sun (1959: 15 July at 4; 17 July at 4), Australian Automobile Association (1960: 38). 285 See for example, SMH (1960: 22 September at 6, 9; 23 September at 3; 24 September at 2), DT (1960: 22 September at 2). 286 Senate Road Safety Committee (1960: 24). 287 Senate Road Safety Committee (1960: 24). 288 SMH (1960: 19 October at 31). 76
the breathalyser in 1960,289 and in 1961 secured the enactment of legislation to authorise Victorian police to breath test motorists suspected to be intoxicated.290 The NSW Government sought a report on the Victorian proposals,291 and then set up another committee to examine the issue.292
In the 1950s, the Liberal/ Country Party Opposition had been largely silent on the question of testing powers. In the early 1960s, some from within its ranks began to publicly advocate the conferral of such powers on police, led by Mr Lawrence MLA, a former Deputy Commissioner and Superintendent of Traffic within the NSW Police Force.293 In 1964 the Opposition moved a motion in Parliament calling for a Royal Commission into the road toll. Speaking in favour of the motion (which was defeated by the Government), Mr Crawford MLA argued that:
if a Royal Commission said a blood test is the only way to determine whether alcohol has affected a driver or pedestrian, the Government should make it compulsory. The rights and freedoms of individuals have to be considered but we must balance against those rights the 1,000 people killed and the 30,000 people injured each year on the roads of New South Wales.294
Overseas studies were now providing clear evidence that alcohol consumption led to driving impairment. The most famous of these was the ‘Grand Rapids Survey’ in the United States, a 3 year study released in 1964 that demonstrated that a driver with a 0.06% blood alcohol reading was twice as likely to have an accident as a driver with only a 0.01% reading. This study had a ‘major international impact’.295 The argument that many people could ‘hold their liquor’ was becoming untenable, undermining a key argument against testing.
289 SMH (1960: 27 April at 1). 290 Crimes (Breath Test Evidence) Act 1961 (Vic). See Boorman (1999). 291 DM (1960: 27 April at 15). 292 DT (1961: 9 August at 9). 293 LA v 3/37 at 1219 (28 September 1961) and at 1271 (3 October 1961). 294 LA v 3/55 at 2215 (24 November 1964). 295 Light (1994: 54). 77
The Liberal and Country parties were elected to government in 1965. The churches296 the NSW Temperance Alliance297 and Dr Hansman298 all moved quickly to restate the case for testing powers. The new Government first put a team of officials on the issue, 299 then created a Cabinet Standing Committee on Road Safety, which considered a new report from Dr Frank Hansman.300 After a further delay of 19 months, the Government declared in favour of testing powers in March 1968.301
Across the Murray River, the Victorians were visited by NSW officials,302 the Transport Minister303 and even the Labor Opposition, 304 all eager to see how the breathalyser worked in practice. Even more influential were the reforms enacted in Britain in 1967.305 As early as July 1965, the Transport Minister had cabled London for details of proposed British legislation.306 In October 1967, the Minister was asked in Parliament whether he had seen press reports that the road toll in Britain had ‘dropped dramatically’ since the introduction of breathalyser tests. He replied that the British Transport Minister would be sending him a full analysis of the operation of the breathalyser.307 The success of the British legislation received widespread press in NSW.308 By June 1968, 800 lives were said to have been saved by the British legislation.309
296 SMH (1965: 7 July at 8), Sun (1965: 3 June at 4). 297 SMH (1966: 6 August at 9). 298 SH (1966: 26 June at 13). 299 SH (1966: 16 January at 25). 300 SH (1966: 26 June at 13). 301 SMH (1968: 4 March at 5; 7 March at 1). 302 SH (1966: 16 January at 25). 303 SMH (1966: 22 February at 9). 304 LA v 3/63 at 1693-94 (Mr K Stewart). The members in question were Mr Stewart and Mr Cox. 305 For a detailed account of the enactment of the Road Safety Act 1967 (UK) and its impact, see Light (1994: 61-64, 77). 306 SMH (1965: 7 July at 8). 307 LA v 3/70 at 2397 (24 October 1967, Mr Bowen and Mr Morris). 308 SMH (1968: 4 March at 2, 5; 6 March at 2). SH (1968: 3 March at 3). 309 SMH (1968: 2 June at 11). Se also LA v 3/74 at 137 (Mr Barraclough, 13 August 1968), v 3/75 at 1080-81 (Mr Kelly and Mr Morris, 19 September 1968), v 3/76 at 2102 (Mr Stewart and Mr Morris, 30 October 1968). 78
Two contrasts between the British and Victorian legislation were highlighted in the increasing acclaim for the British model. In Victoria, a single test was administered using bulky and expensive breath testing equipment, whereas in Britain there was an initial screening test with the small and inexpensive ‘alcotest’ breath bag followed by a definitive blood or urine tests for those who returned a positive result. Secondly, in Victoria a positive result was only evidence of guilt; in Britain a blood alcohol reading above ‘0.08%’ was conclusive of guilt.310
In April 1968, the Commissioner for Motor Transport, Mr Coleman, set out on an international study tour to assess overseas models for the NSW testing legislation. The report he submitted on his return suggested that testing powers would reduce the NSW road toll, if not as dramatically as in Britain. He proposed a two test regime, within an initial road side breath bag test (as in Britain), but with the second test to be a breathalyser test using the kind of equipment used in Victoria.311
The debate about breath testing powers marked the first real shift by the Sydney Morning Herald from its 1950s stance of opposing new criminal investigation powers. In 1960, it had taken a dim view of testing legislation, describing such powers as ‘alarming’ and ‘authoritarian’.312 From late 1967, however, it emerged as a staunch supporter of the enactment of such powers.313 The NRMA had also reversed its position, ending two decades of opposition to testing.314
In ‘selling’ the proposals to the public, Transport Minister Morris repeatedly emphasised proposed safeguards against overzealous or improper conduct by police. In particular, the risk of inaccurate or fabricated test results would be minimised by the proposed ‘two test system’ and by conferring a right on drivers
310 See Crimes (Breath Test Evidence) Act 1961 (Vic), inserting section 408A in the Crimes Act 1958 (Vic). See also section 1 of the Road Safety Act 1967 (UK), SMH (1968: 3 March at 3, 8 March at 2, 11 March at 3), DT (1968: 7 March at 2). 311 Commissioner for Motor Transport (1969a: 2; 1969b: 12). 312 SMH (1960: 19 October at 2). 313 SMH (1967: 6 December at 2; 1968: 4 March at 2; 8 March at 2; 5 December at 2; 14 December at 2).
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who were tested to demand a blood test, at their own expense.315 The need for Morris to emphasise these points suggests a lingering distrust of police, and of testing equipment. Morris also repeatedly promised that police would not be empowered to conduct random breath tests.316 A driver would have to commit some infringement of the traffic rules or be involved in an accident to be tested.
The proposals took legislative form in the Motor Traffic (Amendment) Bill 1968, introduced into Parliament on 3 December 1968.317 This was by far the most significant police powers reform that had come before the NSW Parliament in the period since 1945.
Under the Bill, it would be an offence for a person to drive or attempt to drive a motor vehicle while having a prescribed concentration of alcohol, namely 0.08 milligrams of alcohol or more per gram of blood.318 The driver’s actual or apparent level of ‘impairment’ would be irrelevant. A police officer could conduct an on-the-spot screening ‘breath test’ on a driver whom the officer had reasonable cause to believe had contravened traffic laws, driven or attempted to drive in a manner suggestive of intoxication, or been involved in an accident on a public street.319
A police officer could arrest a driver if this test suggested that his or blood did contain a prescribed concentration of alcohol, or if the driver refused to submit the test. The driver was then to be taken to a police station or other appropriate place, to undergo a more formal ‘breath analysis’.320 A driver required to undergo a breath analysis would be entitled to request that a blood test also be conducted (at
314 SMH (1968: 4 March at 5). 315 See, for example, SMH (1968: 2 June at 11; 31 July at 7; 7 October at 25). 316 SMH (1968: 13 March at 13; 26 September at 1; 5 December at 8), DM (1968: 3 April at 29), SH (1968: 1 December at 3), DT (21 November at 11). 317 LA v 3/77 at 3203. 318 Section 2, inserting subsection 4E(1) in the Motor Traffic Act 1909. 319 Section 2, inserting subsection 4E(2) in the Motor Traffic Act 1909. 320 Section 2, inserting subsections 4E(3) and (4) in the Motor Traffic Act 1909. 80
the driver’s expense), with the blood sample to be divided into portions for the police and the driver.321
Refusal to undergo a breath test was subject to a fine ($200 maximum) and did not prevent police from requiring a breath analysis.322 Refusal to undergo a breath analysis or attempting to alter one’s blood alcohol level was subject to the same maximum penalty as the prescribed content alcohol offence (ie, a $400 fine and/or 6 months imprisonment).323
In Parliamentary debate, the Opposition expressed in-principle support for the Bill.324 It did, however, make a number of criticisms. The most significant was that testing powers should be conferred on ‘independent testers’ not police.325 This ‘would be more acceptable to the public’ because it removed ‘the argument that the tester becomes the prosecutor’.326 The Opposition was split on this point, with some of its members expressly indicating they saw little problem with police conducting the tests.327
The Bill completed its passage through Parliament, receiving Royal Assent on 16 December 1968. The long debate that led to its enactment illustrates some important themes about law, policing, and public debate. Firstly, police were given this significant new power without having been significant players in seeking reform. It cannot be assumed that police always ‘want’ extra powers or are the driving force behind them. Secondly, concerns about improper police practices were actually a central part of the impetus for giving police a significant new power. This lends support to the argument that ‘powers’ (effectiveness) and ‘safeguards’ (concern for suspects) are not necessarily in an inverse relationship.
321 Section 2, inserting subsection 4E(9) in the Motor Traffic Act 1909. 322 Section 2, inserting subsections 4E(3) and (6) in the Motor Traffic Act 1909. 323 Section 2, inserting subsection 4E(7) in the Motor Traffic Act 1909. 324 LA v 3/77 at 3456 (Mr Cox, 5 December 1968) and 3474 (Mr Hills, 5 December 1968). LC v 3/77 at 3512 (Hon R Downing, 10 December 1968). 325 SMH (1968: 5 December at 1). 326 LA v 3/77 at 3459-60 (Mr Cox, 5 December 1968). 327 LA v 3/77 at 3481 (Mr Stewart, 5 December 1968). LC v 3/77 at 3515 (Hon R Downing, 10 December 1968). 81
This point is made by both Braithwaite328 and Dixon.329 In the case of breath testing, the conferral of stronger powers on police relieved the pressure on them to use trickery and assertion to secure convictions. Extra powers actually offered a way to enhance rigour, accountability and ‘due process’.
The third point arises from the fact that police practices in the enforcement of drink driving laws impacted on the middle class in a way that other practices (for example, searches and questioning) did not. The greater ‘exposure’ of questionable practices placed the necessity for greater powers in sharper focus. Malpractice in other contexts retained a low profile, and so the need for proper powers took longer to receive widespread attention. This pattern - exposure of malpractice leading to moves to enhance police powers - has been repeated time and again in the years since, as we will see. It is ironic that police are much more likely to be denied new powers if they appear to be working effectively and reliably. If they are shown to be ineffective or engaged in systematic illegality or to be frequently deceitful, a case for additional powers can more readily be made out. The old dictum of consensual policing could be used here: that police win (new powers) by appearing to lose (credibility in the fight against crime).330
The breath testing legislation is also notable for the manner of its introduction. To accompany the introduction of the new legislation, a Breathalyser Squad had been established within the NSW Police Force. Members of this squad received special training both in operating the breathalyser machine and in dealing with the public. Transport Minister Milton Morris claimed that Squad members had been hand picked for their capabilities to act with the utmost regard for the convenience and feelings of those tested.331
A public education campaign, undertaken by the NSW Police Department and the NSW Road Safety Council, accompanied the commencement of the legislation.
328 Braithwaite (1989: 158-59). 329 Dixon (1997: 284). 330 Cited in Reiner (2000: 53).
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This included a press conference to acquaint the media with the proposed procedures, a series of demonstrations to social, business and sporting clubs and in shopping centres, and the distribution of a pamphlet to 800 000 homes.332 Such detailed attention to implementation has been all too rare in connection with other criminal investigation reforms in the period since. The care that was taken with the implementation of the breath testing laws appears to have reflected, at least in part, a consciousness that these powers would be exercised against members of the middle class, who would make sure any deficiencies received prominence. The same care would be taken with random breath testing laws.
Testing began at 2pm on Thursday, 19 December 1968.333 As in Britain, the initial results were extremely good. In the first three months of testing, the number of road fatalities fell by 50, or 17%, on the equivalent period in the previous year.334 After five months, 3451 tests had been conducted with 2979 of those having revealed drivers ‘over the limit’. In areas in which the breathalyser was in use (Sydney, Wollongong and Newcastle), the road toll initially dropped in comparison to previous years, whereas in areas where the breathalyser was not in use, it had risen.335 These apparent benefits were sadly short lived. In the year to 30 June 1968 there had been around 74 000 accidents and 1174 deaths on the road in the NSW. In the year to 30 June 1969, after 6 months of testing, there were over 78 000 accidents and a rise to 1206 deaths.336 In the year to 30 June 1970, with testing powers in force for the entire year, there were over 91 000 accidents and 1267 deaths on the roads.337 The long term benefits of the breath testing reform were disappointingly elusive; but this was to be far from the end of the road for criminal investigation law reform.
331 LA v 3/77 at 3417 (4 December 1968). 332 Road Safety Council of NSW (1969: 9-10). 333 DT (1968: 19 December at 3). SMH (1968: 23 December at 5). 334 LA v 3/79 at 4972-73 (Mr Morris, 25 March 1969). 335 DT (1969: 28 May at 9). 336 Commissioner for Motor Transport (1969b: 38-39). 337 Commissioner for Motor Transport (1970: 31). 83
Conclusion
There was very little legislative reform of criminal investigation powers in NSW from 1945 to 1968, when measured against three benchmarks. First, events in later decades, when there was a regular stream of criminal investigation legislation. Secondly, what might have been done to bridge the gap between what police were expected to do, and their formal legal authority. Finally, what campaigners for reform would have hoped for, most notably during the long delay in enacting drink driving testing powers.
A central aim of this chapter has been to show that non-reform is a complex phenomenon, that is as deserving of study as reform. Many factors stood in the path of criminal investigation law reform in NSW in this period. First, despite the apparent inadequacy of police powers by current standards, the actual operation of the law through the legal system imposed relatively few constraints on police conduct. The capacity of police to operate through consent, whether genuine or nominal, was a significant example of the lee-way left open by the minimalist approach to police powers under the common law.
Dominant ways of thinking encouraged complacency about the legal framework governing policing, and discouraged the idea of change. The ‘free British way’ paradigm encouraged a mind-set that viewed existing legal rules as a vital and treasured heritage, essential to protect civil liberties that it would be dangerous to tamper with. This way of thinking emphasised faith in police, belief in an ideal of police/ community cooperation, and a playing down of the importance, and desirability, of formal legal powers. It also emphasised faith in the courts as the best forum for redressing injustice, controlling police misconduct and upholding citizens’ rights. Alternative mechanisms to achieve these ends were likely to be seen as undesirably outflanking and undermining the courts. This encouraged politicians to keep out of questions of policing practice and malpractice.
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Belief in the merits of the status quo encouraged police and government to take an understated approach to the crime rate, something that the NSW Police Force turned into an art form with its sophisticated mechanisms for preparing and presenting doctored crime figures. Again, the apparent success of police efforts against crime encouraged the maintenance of existing approaches and existing laws, rather than change. Not even the revelation of police malpractice was enough to engender much support for systemic ‘reform’, because of the overwhelming tendency to focus on the individual moral failings of ‘rotten apples’ as the cause of misconduct.
These dominant concepts of policing and law coincided with vested interests. It served the police hierarchy well to encourage complacency about crime, and faith in police. It served the interests of politicians in government to wipe their hands of responsibility for dealing with complaints against police, and to deny systemic explanations for police misconduct. However, self-interest alone does not account for the influence of these modes of thought. Rather, these ideas formed part of a coherent way of thinking that helped explain the world and to give people comfort, the ‘free British way’ paradigm. For that reason, the ideas could be successfully employed in defence of interests, because they offered a believable view of the world, quite part from whether they served or undermined particular interests. Dominant ideas mediated the pursuit of interests by encouraging those interests to be pursued in a particular way. Police and political ‘interests’ were pursued by understating the threat of crime, just as in later times these interests would be pursued by dramatising crime. The Daily Telegraph was populist, then as now, but then populism meant opposing additional powers for police.
The exceptional cases where debate and reform did emerge also reveal much about policing and law in this period. The minor reforms enacted between 1945 and 1968 tended to emanate from behind the scenes, from the Police Commissioner or the legal/judicial community. These groups were then, and remain, influential. However, their limited influence in carrying broader public opinion was starkly illustrated by the condemnation heaped on Police 85
Commissioner Allan in 1963 when he called for telephone tapping powers.
The extensive coverage of the 1963 United Nations seminar illustrates the importance of set-piece events in generating debate. People may hold ideas about legal change, but for these to gather into a public debate or campaign they need a focal point, something to generate media and political attention. Magistrate Stonham’s paper and the deliberations of his Committee were another example of how a trigger (to use Galliher’s term) can generate a public debate about reform, bringing underlying attitudes and objectives into focus.
The central ingredient that led to the extensive public debate about testing powers for drink driving offences was the involvement of the middle class. The investigation and prosecution of most offences was and is largely directed at socially and economically marginal groups. These groups did not generally share in spheres of influence with the media and the legal community. The middle class did collectively have access to these spheres of influence, and so the inadequacy of police practices and legal powers came under sustained public questioning.
Police observational evidence of intoxication was challenged over and over, by high paid legal counsel and in the newspapers. The need for a better approach to detecting drink driving was repeatedly highlighted. Police powers in this area received more attention than those in any other, in the two decades to 1968. Reform was still long delayed, in part because moving public and political sentiment away from the ‘free British way’ paradigm of minimal police powers was a long process.
The breath testing debate was also an early illustration of the multiplier effect from developments in other jurisdictions. The emergence of debate in Victoria and Britain led to legislative reform in those jurisdictions, which provided publicity and precedents to aid those seeking reform in NSW. The way that developments in one jurisdiction feed off those in another, helps explain how a broad ranging debate about criminal investigation law was to emerge so quickly and decisively 86
from the late 1960s. The emergence of the debate is the subject of the next chapter.
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3. THE IDEA OF REFORM
This chapter examines the emergence of an extensive debate about the need to reform police powers of criminal investigation, in the decade from the late 1960s to the late 1970s. The first section outlines the legislation enacted in NSW during this period. The second expands the discussion beyond NSW to outline the major inquiries in this period, in Australia and England, that recommended significant amendments to criminal investigation law. This broader focus helps to illustrate that the emergence of a more intense debate in NSW was part of a broader national and international trend. In any case, the recommendations of these inquiries were to have a marked influence on the future course of debate and reform in NSW.
Subsequent sections of this chapter examine the major influences (structures and triggers, events and ideas) that generated much greater debate about criminal investigation law in NSW and the rest of Australia from the late 1960s onwards. There are also comparisons with the emergence of debate in England. The emergence of debate is examined from two main perspectives. First, the role of the key groups responsible for generating debate are examined, along with the context in which those groups operated: judges and lawyers, academics and libertarians, police. Secondly, key ‘circumstances’ are examined: the influence of debates occurring outside NSW, of revelations of misconduct, and of the freeing up of social constraints. Thirdly, close attention is given to the role of key perceptions and ideas (as well as their source): concern about crime, theories of police misconduct, ideas about reform, modernisation and privacy, and fears of social change. The chapter is not premised on the idea that these ‘actors’, ‘circumstances’ and ‘ideas’ were independent of each other. On the contrary, considerable attention is given to the interaction between them.
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NSW Legislation
Two major criminal investigation legislative reforms were enacted in NSW between 1969 and 1976. These were the Listening Devices Act 1969 and the Crimes and Other Acts Amendment Act 1974, which significantly revised the search warrant powers in the Crimes Act 1900.
Victoria had taken the lead on listening devices legislation, taking its proposed Bill to the Standing Committee of Attorneys-General in 1968. It hoped for endorsement of a uniform national scheme. However, States and Territories were unable to agree on a uniform model, so it was left to each jurisdiction to legislate as it felt appropriate.338 Victoria’s efforts helped prompt the NSW Government to develop its own legislation during 1969,339 resulting in the enactment of the Listening Devices Act 1969.
That Act prohibited the use of a device to hear, record or listen to a private conversation (‘a listening device’) simultaneously with the conversation taking place (sections 3 and 4). It also prohibited the communication or publication of the contents or a report of a private conversation derived by means of a listening device (sections 5 and 6), and the admission of evidence obtained by means of a listening device in civil or criminal proceedings (section 7).
These general prohibitions were qualified by rules permitting police use of listening devices. The Police Commissioner, an Assistant Commissioner or (in an emergency) a Police Superintendent, could provide written authorisation for the use of a listening device for up to 21 days, to obtain evidence necessary for the investigation of a suspected or anticipated offence (section 8). To do so, the authorising police officer had to be satisfied that the use of the listening device was ‘necessary’ for the investigation of an anticipated or completed offence
338 Elliott (1982: 331). 339 See LA v 3/81 at 821 (Mr McCaw, Attorney-General, 10 September 1969) and at 835 (Mr Hughes, 10 September 1969), SMH (1969: 20 August at 5). 89
(subsection 7(2)). Where an emergency authorisation was made by a Superintendent, he or she had to notify the Commissioner or an Assistant Commissioner within 48 hours (subsection 8(3)).
The Act contained novel recording and reporting requirements. The Police Commissioner was required to maintain records of authorisations, and to provide the Minister with a copy of each authorisation certificate and a report on the resulting use of the device (section 10). The Commissioner was also required to destroy any records of conversations not relating to the commission of an offence (section 11).
From 1969, it was five more years before the next major NSW ‘criminal investigation’ legislative reform, this time relating to search warrants. In 1971, the NSW Government had requested former Supreme Court Justice George Amsberg to chair a part time committee to provide the Government with policy advice for reforms to the law of criminal procedure.340 One of the committee’s areas of inquiry was the adequacy of the search warrant powers in the Crimes Act 1900. The committee concluded that these powers were not adequate. Indeed, section 354 arguably only allowed the issue of a warrant to search for stolen goods, and provided no authority for searching for other types of evidence.341
The Committee recommended new and broader search warrant provisions, and in 1974 the Government brought forward legislation to implement the Committee’s recommendations.342 The Crimes and Other Acts (Amendment) Act 1974 introduced new grounds on which police could obtain a search warrant, namely where there were reasonable grounds to believe a search would reveal evidence of
340 Criminal Law Committee (1973: 3). 341 LA v 3/109 at 1359 (Second reading speech by the Minister for Justice Mr Maddison, 13 March 1974). 342 LA v 3/109 at 1359 (Second reading speech by the Minister for Justice Mr Maddison, 13 March 1974). 90
an indictable offence, or would reveal a thing intended to be used for the purpose of committing an indictable offence.343
The Act also amended section 354 of the Crimes Act 1900 to expressly provide that these warrants could be executed only by police (not private citizens), but that a police officer could be aided by non-police assistants as necessary. A warrant was to be executed by day, unless the justice authorised execution by night. The amendments also explicitly authorised the use of force in the execution of a warrant. Resisting or hindering the execution of a section 354 warrant was made punishable by up to 2 years imprisonment and/or a $2000 fine.
Australian and English Inquiries
The Amsberg Committee’s deliberations on search warrant law was a small example of the way in which criminal investigation law was brought into the spotlight by a series of inquiries during the 1970s. The Amsberg Committee was an example of a NSW inquiry; but inquiries in other States and Territories, at the Federal level and even overseas were to exert a profound influence on the police powers debate in NSW. It is therefore worthwhile (and indeed, necessary) to relinquish our earlier focus on NSW, to chart the sources and consequences of this spate of ‘criminal investigation’ inquiries.344
One of the first of these was a 1965 inquiry by the Victorian Solicitor-General into allegations that Victorian police were fabricating evidence and engaging in other improper activities in respect of the questioning of suspects. The Solicitor-General recommended a greater role for tape recording, but made no suggestions for law reform.345
343 Paragraph 7(f), inserting section 354 in the Crimes Act 1900. 344 Other accounts of this spate of inquiries are provided by Kirby (1979: 626-30) and Sallmann and Willis (1984: 16-19). 345 Murray (1972). 91
The year 1965 also saw the launching of a committee chaired by NSW Supreme Court Chief Justice Sir Leslie Herron, comprising senior judges, prosecutors, legal practitioners, legal academics and police.346 The Committee’s primary task was to reformulate the NSW Police Instructions regarding interrogations. However, the Committee ranged well outside its initial brief, with its members engaging in a protracted law reform debate. For example, one Committee member proposed that police should have a statutory power to detain a suspect for questioning for 48 hours, extendable by a magistrate.347 The Committee ultimately returned to its original objective, and declined to make any formal recommendations for law reform. Nonetheless, detailed records of its deliberations were kept by one member of the Committee, Justice McClemens of the Supreme Court. These offer important insights into the views about criminal investigation and law reform expressed in closed session by eminent members of the legal and policing community at this time. The records kept by Justice McClemens have been a key source for this chapter and in chapter 6.
In 1972, the Victorian ‘Chief Justice’s Law Reform Committee’ was invited to comment on a proposed provision dealing with police powers following the arrest of a suspect. The proposed provisions would have governed personal search, medical examination, identification, and fingerprinting. The provisions had been omitted from the Crimes (Powers of Arrest) Bill 1972 (Vic) at the last moment, after non-government members of the Legislative Assembly suggested that they had been subjected to inadequate scrutiny in their formulation.348
A sub-committee recommended that additional obligations be imposed on police, for example to notify a suspect that he or she was in custody for a specified
346 Institute of Criminology (1973b: 15). 347 Professor Shatwell, Dean of the University of Sydney Law Faculty: Institute of Criminology (1973b: 71-2). Mr W Knight QC suggested that ‘at the least’ a magistrate should be able to authorise police to detain a suspect for questioning for a ‘very limited time’ (Institute of Criminology 1973b: 83). Chief Justice Herron suggested that ‘Parliament, by Statute, confer power on specified high-ranking police officers to detain a suspect for examination by police before a magistrate’ (Institute of Criminology 1973b: 33-34; italics in original). 348 See Victorian Parliamentary Debates v 306 (14 March 1972) at 4146, 4150 (Mr Lovegrove), 4153 (Mr Ross-Edwards) and 4156 (Mr Reid, Attorney-General). 92
offence as a pre-requisite to fingerprinting the suspect or exercising other powers. Similarly, it suggested that police be required to photograph or video-tape identification parades where practicable. The sub-committee also proposed that police should not be granted a number of powers that would have been conferred by the draft provisions, namely to require a suspect to undergo a medical examination, a strip search or a body cavity search.349
The sub-committee also directed attention to the rules governing the admissibility of unlawfully obtained evidence. It proposed a reversal of the common law position, whereby illegally obtained evidence would have to be excluded by a court unless the prosecution could persuade the court that it should be admitted.
The second ‘law reform’ inquiry was conducted by the Criminal Law and Penal Methods Reform Committee of South Australia, chaired by Justice Roma Mitchell of the South Australian Supreme Court. The Committee was established in 1971 to provide the South Australian Government with a series of reports for improving laws and procedures in the criminal justice system. Criminal Investigation was its second report.350 The report recommended that police be given additional powers, for example, to detain a suspect for questioning, and to fingerprint and photograph any person in lawful custody. It also proposed the enactment of rules to allow police to make better use of their powers, for example, by allowing a court to draw an adverse inference from a suspect’s failure to answer questions put to him or her by police (ie, abolition of the right to silence).
The Mitchell Committee also proposed tighter regulation of criminal investigation in certain respects. For example, it proposed abolition of the ‘general search warrant’ provision under South Australian law, so that a search warrant would only be able to be issued by a magistrate or justice of the peace for a specific search, rather than by the Police Commissioner on a 6 month standing basis. It also proposed to give a suspect a right to the presence of a lawyer during
349 CJLRC (1972). 350 Mitchell Committee (1974). 93
questioning. The Committee recommended that the formal legal framework should be underpinned by a legislative declaration of which ‘methods of obtaining evidence are illegal and improper’, with evidence obtained by such methods to be excluded by a court subject to certain exceptions.
In NSW, two other inquiries in addition to that of the Amsberg Committee examined specific aspects of the law of criminal investigation. Both the Muir351 and Phibbs352 reports on the reform of child welfare law recommended tighter regulation of the interrogation of juveniles. The thrust of these recommendations was that police should be required to notify a parent or other third party before questioning a juvenile suspect, and should have to arrange for the attendance of a parent or third party. An admission or confession obtained in breach of this requirement without satisfactory explanation would not be admissible in evidence against the juvenile.
The most comprehensive of the Australian reports was the ALRC Criminal Investigation report, handed down in 1975.353 This contained a detailed set of proposals for a Commonwealth Criminal Investigation Bill to regulate the proposed new Australia Police. This would be formed by amalgamating a number of Federal law enforcement agencies and the police forces of the two Territories.354 The ALRC followed the Mitchell Committee in proposing a mix of additional powers, new procedures and additional restrictions on the exercise of criminal investigation powers. New powers proposed by the ALRC included the power to demand the name and address of a witness, to detain a suspect for questioning, to arrange the taking of a forensic sample from a suspect, and the interception of telecommunications (then available only for national security purposes). The ALRC report also proposed the relaxation of some existing restrictions on the exercise of powers, for example, by allowing applications for warrant by telephone in appropriate circumstances.
351 Muir (1975). 352 Phibbs (1975). 353 ALRC (1975a).
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The ALRC proposed more rights for suspects and more obligations for police than had the Mitchell Committee. It proposed, for example, that police should be required to notify a suspect of his or her rights, and to await the attendance of various third parties before commencing questioning. The ALRC agreed that police should be empowered to detain a suspect for questioning but differed from the Mitchell Committee in arguing that arrest should be a prerequisite to this. Special requirements were proposed for police in dealing with juveniles, Aboriginal people and certain other disadvantaged groups. Like the Victorian Chief Justice’s Law Reform Committee, the ALRC proposed a ‘reverse onus’ exclusionary rule, with the onus on the prosecution to make the case for the admission of unlawfully obtained evidence.
While the ALRC was preparing its report, another inquiry was getting under way in Victoria. The report of the Beach Inquiry355 recommended reforms to the law of criminal investigation flowing from its findings of serious and institutionalised misconduct on the part of Victorian police. Barry Beach QC recommended a range of legislative reforms to more closely regulate police practices in conducting arrests, questioning suspects, conducting investigation parades, fingerprinting and photographing suspects and executing search and seizure powers. A number of these recommendations were based on those of the ALRC.
Like the Beach Inquiry, Queensland’s Lucas Inquiry356 was the result of specific allegations of police misconduct. Unlike Beach, the Lucas Inquiry was not directed to pursue specific allegations against police, other than for the purposes of considering the case for law reform. It also differed from the Beach Inquiry in making extensive proposals for the enhancement of police powers. It recommended that police be given a power to detain a suspect for questioning; to stop, question and search suspected persons in public places; to take forensic
354 The states would retain their existing policing agencies. 355 Beach (1978). The report was handed down in 1976 but was not published for public release until 1978.
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samples; and to search for and seize property in a broader range of circumstances than was then allowed. The report of the Lucas Inquiry repeatedly emphasised that the new powers it proposed should only be conferred subject to the enactment of additional rights for suspects and obligations for police. These rights and obligations were similar in nature to those that had been proposed by the ALRC and the Beach Inquiry.
The Norris Committee357 was set up to evaluate the recommendations of the Beach Inquiry and to provide its own recommendations on the matters raised by Beach. By and large, the Norris Committee rejected the recommendations of the Beach Inquiry for more closely regulating police practices. It did, however, propose a reverse onus exclusionary rule of the kind already recommended by the Victorian Chief Justice’s Law Reform Committee and the ALRC.
In England and Wales, as in Australia, the 1970s saw a number of inquiries concerning the law governing the investigation of crime. These reports were of particular significance for NSW and Australia, because of the attention that developments in England have typically received in Australia, and because of the direct role that senior English police have often played in Australian policing. Colin Woods, for example, went from a senior position in British policing to Commissioner of the Australian Federal Police at the time of the debate on the Criminal Investigation Bill 1981, discussed below.358
The first of the English reports during this period was the eleventh report of the Criminal Law Revision Committee in 1972.359 This was a standing committee of criminal law experts to whom the British Government issued references from time to time. The most controversial of the Committee’s recommendations was abolition of the right to silence. If an accused sought to rely on an alleged exculpatory fact as part of his or her defence, and had failed to mention that fact to
356 Lucas Committee (1977). 357 Norris Committee (1978). 358 For a contemporary comment, see Barker (1980).
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police when questioned, the prosecutor and judge would be entitled to comment on this earlier ‘silence’ and a court or jury to draw inferences from silence. A dissenting minority of Committee members recommended that police be required to tape record interrogations as a prerequisite to abolishing the right to silence.
In 1976, the British Government ordered an inquiry into the law and procedure relating to evidence of identification in criminal cases. The inquiry was headed by Lord Devlin.360 The inquiry was the result of two cases in which a person had been convicted of a serious offence, and then had their conviction quashed, largely because of revelations about the unreliability of identification evidence on which they had been convicted. The Devlin Committee canvassed some legislative reforms (for example, to require the photographing of an identification parade), but concluded that the better approach was to revise administrative rules.
A third English inquiry, conducted by Sir Henry Fisher, was also triggered by a notable miscarriage of justice.361 Three boys had been convicted of offences to which they had ‘confessed’ but which they were later shown not to have committed. The inquiry report recommended that it should be impermissible for a person to be convicted solely on the basis of a confession, unless that confession had been tape recorded.
The most ambitious and well funded of all of the inquiries was the Royal Commission on Criminal Procedure in England and Wales.362 The report of the Fisher Inquiry had proposed that such a Royal Commission be held, and various incidents during the 1970s had highlighted concerns about police powers and procedures.363 The recommendations of the Royal Commission followed a similar pattern to those of the Mitchell Committee, ALRC and Lucas Inquiry in Australia. Extensive legislative reform was proposed in order to clarify and enhance police
359 Criminal Law Revision Committee (1972). 360 Devlin Committee (1976). 361 Fisher (1977). 362 RCCP (1981). 363 See Reiner (2000: 65). 97
powers, encourage the introduction of more modern and effective procedures, and enhance safeguards and the rights of suspects.
On the key issue as to whether to authorise detention for questioning, the Royal Commission proposed detention after arrest, with police being required to bring a suspect before a court after 24 hours. This was a much longer period than proposed by any of the Australian inquiries. The Royal Commission also proposed that police be empowered to require a suspect to undergo non-intimate forensic and identification procedures, such as fingerprinting or the taking of a sample of hair and saliva. More intimate procedures, such as the taking of a blood sample, would only be allowed with the consent of the suspect. The Royal Commission proposed, without going into specifics, that detailed rules of procedure should be set out in guidelines. It rejected the ‘reverse onus’ exclusionary rule, arguing for a special (absolute) exclusionary rule in relation to the most serious breaches of the laws governing police.
This brief survey of the Australian and English inquiries necessarily omits many of the specific proposals that emerged. For example, many of the inquiries concluded that police should be encouraged to tape record interrogations, but divided as to whether this ‘encouragement’ should be backed by placing barriers in the way of the admission of unrecorded confessions into evidence.364 Nor is there space to outline important developments in other jurisdictions during this period, such as the Thomson Committee report in Scotland,365 or the promulgation of the American Law Institute Model Code of Pre-arraignment Procedure.366
364 The Mitchell Committee (1974: 92-4), the Norris Committee (1978: 85-101), a majority of the Criminal Law Revision Committee (1972: 29-30) and the RCCP (1981: 75-9) all recommended that police make greater use of tape recording, but argued that there should be no impediment to the admissibility of non-recorded admissions or confessions. The ALRC (1975a: 71-4), the Beach (1978: 81-93), the Lucas Committee (1977: 52-67), and a dissenting minority of Criminal Law Revision Committee (1972: 30-32) all felt that legislation should be enacted under which evidence of an admission or confession, other than a tape recording, should not be admissible in evidence in certain circumstances. 365 Thomson Committee (1975). 366 The Model Code was discussed and evaluated in Carney and Epstein (1980). 98
This rush of proposals and inquiries concerning the law of criminal investigation stands in marked contrast to the very limited attention given to the topic in NSW and elsewhere from 1945 to 1965. A number of important questions are raised. Why was so much attention directed to police powers of criminal investigation in the late 1960s and 1970s? What forces influenced the specific proposals that emerged? The remaining sections of this chapter address these questions.
Influences 1: Judges and Lawyers
A number of individual judges, magistrates and lawyers played a key role in initiating debate about criminal investigation law in NSW and elsewhere in Australia, from the late 1960s. These individuals ‘triggered’ debate. The interventions of judges, magistrates and lawyers ranged across the spectrum, from those urging closer regulation of undesirable police practices to those calling for tough new powers and a freer hand for police. Sydney magistrate JA Letts was one proponent of stricter regulation. In 1965, he called for a requirement to be imposed that an independent witness be present during the interrogation of a suspect.367 His call received strong support from the Daily Telegraph which suggested that the taping of interviews would be better still.368
Tape recording was the subject of a particularly significant statement, by Supreme Court Justice Reginald Scholl in 1965. Scholl expressed concern about the reliability of ‘confessions’ obtained by police and called for greater use of tape recording. Scholl’s comments led to the inquiry by the Victorian Solicitor-General mentioned above, who in turn expressed support for greater use of recording technology. Scholl’s comments were repeatedly cited in the years ahead, in NSW
367 DT (1965: 10 June at 20). 368 DT (1965: 10 June at 2). 99
as well as in Victoria, as a reputable source of criticism of police practices in obtaining supposed ‘confessions’ and in support of tape recording.369
On the ‘tough on crime’ side of the ledger, two NSW Supreme Court judges were particularly vocal: Justice John McClemens and Chief Justice Leslie Herron. Justice McClemens had launched the debate about telephone tapping powers at the 1963 United Nations seminar, and had continued to call for such powers in later years.370 He was also an advocate for abolition of the right to silence.371 In his later years, he appears to have been frustrated with the community’s failure to support such reforms, questioning whether public ‘devotion’ to privacy should be allowed to protect ‘gang bosses, pimps and drug pedlars.372 He also complained of the ‘emotion’ that clouded debate.373
Justice McClemens rhetoric was mild compared to some of the comments made by Chief Justice Herron. In late 1968 and early 1969, Herron undertook an overseas study tour, in the context of the deliberations of the Herron Committee that he chaired, looking into NSW Police guidelines on arrest and questioning.374 He held a press conference at Kingsford Smith Airport, immediately upon his return, to announce that it was time for politicians and the judiciary to get tough on crime, by emulating United States President Nixon rather than the weak-kneed approach adopted in Britain. He warned that the ‘full force of criminal violence’ that was sweeping the world was already making itself felt in Australia. It was, he said ‘time to meet the crime wave with considerable toughness and meet it head- on in a collision’. The police force had to take ‘more drastic action’.375
369 See, for example, DT (1965: 10 June at 2), Victorian Legislative Assembly Debates v 306 at 4153 (Mr Lovegrove, 14 March 1972), Institute of Criminology (1973b: 91-2), O’Halloran (1977b: 15), Crim LJ (1981: 125). 370 SH (1975: 9 November at 49). 371 Institute of Criminology (1973a: 4-14, 110-12). 372 SH (1975: 9 November at 49). 373 Institute of Criminology (1973a: 110). 374 Institute of Criminology (1973b: 28). 375 SMH (1969: 31 January at 1, 7), DT (1969: 31 January at 1). 100
The Chief Justice also made what the Sydney Morning Herald described as a ‘host of inflammatory and generally unhelpful comments’, suggesting for example, that United States courts were ‘particularly tolerant of Negroes and Puerto Ricans’ who traded on their ‘underprivileged status’.376 Herron proposed a series of reforms as part of the ‘get tough’ approach, including abolition of the right to silence.377 Attorney-General McCaw said that the Chief Justice’s views would carry ‘great weight’ with himself and with the Government.378 Herron’s fixation with the American experience was a notable illustration of the influence of perceived developments in America on the debate about criminal justice in NSW.
The response of the Daily Telegraph to the comments of the Chief Justice suggested that it had abandoned some of the civil libertarian perspective it had held in 1963. It argued that the community would be right behind the Chief Justice’s efforts to ensure that the streets were ‘kept safe for decent people’.379 The Sydney Morning Herald was more sceptical, questioning the existence of a ‘crime wave’ and warning that some of the reforms the Chief Justice had proposed, and even his inflammatory comments, might encourage police abuses of power.380 Later that week, a columnist in the Sun-Herald warned against ‘panic’ that might send civil liberties ‘down the drain’.381
Chief Justice Herron’s comments drew a response from the Labor Party’s Federal Senate Leader, Senator Murphy. This was symptomatic of the increasing involvement of Federal politicians in State criminal justice matters. Murphy suggested that increasing police powers to combat organised crime would be like ‘burning the house down to roast the chicken’. Senator Murphy went on to issue the optimistic forecast that within a few years the development of methods such as data processing would ‘turn the balance heavily in favour of law enforcement’.382
376 SMH (1969: 1 February at 2). 377 SMH (1969: 31 January at 7). 378 SMH (1969: 31 January at 1). 379 DT (1969: 31 January at 2). 380 SMH (1969: 1 February at 2). 381 SH (1969: 2 February at 38). 382 SMH (1969: 1 February at 5). 101
The colourful interventions by Chief Justice Herron and Justice McClemens were matched by extensive involvement by judges in the formal processes of reviewing laws and drawing up reform proposals. For example, current and former judges chaired the Herron Committee, the Amsberg Committee, the Victorian Chief Justice’s Law Reform Committee, the Mitchell Committee, the Muir Inquiry, the Lucas Inquiry, the Norris Committee and the ALRC Criminal Investigation inquiry.
Justice Michael Kirby, the Commissioner in charge of the ALRC at the time of its Criminal Investigation inquiry, was a particularly energetic advocate. On the day the Criminal Investigation report was delivered, Kirby held a press conference in Parliament House to explain and promote the findings in the report.383 When the Commonwealth’s Criminal Investigation Bill 1977 was drawn up to implement the Committee’s recommendations, Kirby spoke in favour of the Bill at a number of seminars and conventions.384 His advocacy of legislation to implement the report continued though the late 1970s and early 1980s, in articles, speeches and media releases.385 It is notable that in 1982, and despite having chaired the ALRC for more than six years on full time secondment from the bench, Justice Kirby still felt it worthwhile to emphasise his judicial credentials. A press release setting out Kirby’s comments on the Criminal Investigation Bill 1981, as ALRC chairman, was headed ‘Judge Queries New Police Law Proposals’.386 Judges held, and were understood to hold, a special place in the police powers debate.
Legal practitioners and others with legal training were also prominent in the many committees and inquiries from the Herron Committee onwards, typically outnumbering police officers on committees and inquiries by two to one. Into the early 1970s, much of the legal profession’s input to the reform debate retained a
383 SMH (1975: 5 November at 1). 384 See, for example, CT (1977: 9 May at 12), SMH (1977: 11 July at 3). 385 See, for example, Kirby (1979; 1982); transcript of ABC Radio ‘Law Report’ interview, 23 February 1982 (Commonwealth Archives ALRC File C1392/2 141). See also chapter 4.
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narrow focus, dominated by a ‘lawyers’ law’ paradigm. For example, the Amsberg Committee was expressly directed to look into the ‘practical needs’ of the criminal law, as opposed to matters of ‘Government sociological policy’.387
This narrow legalistic paradigm had a number of implications. One was to encourage an assumption that law reform should focus on technical questions of law, and should therefore be considered ‘in house’ by legal experts. In 1957, for example, the Dean of the University of Sydney Law Faculty called for law reform to be placed in the hands of ‘Committees drawn from the Bench, the Bar, the solicitors’ branch of the profession, and the law schools’.388 This approach received the tacit consent of the other lawyers and judges.389
It is not surprising that people interested in law reform who were not lawyers often felt shut out. One such person was Mr Evelyn Darby, a member of the NSW Legislative Assembly, who reported that he had heard other parliamentarians say that ‘the only member of Parliament who has any right or capacity to debate a legal bill is a man who is trained in the law’.390
One implication of the focus on technical legal questions was to discourage the discussion of broader policy, and to preclude any commitment to significant reform. Campbell and Whitmore, in their groundbreaking 1966 text Freedom in Australia, had made particular note of the failure of both police and lawyers to take an interest in matters concerning police powers.391 When magistrate Letts had suggested that an independent third party be required to be present during the questioning of a suspect, the Law Society had indicated that it had no complaint
386 ALRC Media Release, 6 February 1982. Obtained from unfiled records held by the Commonwealth Attorney-General’s Department. 387 Criminal Law Committee (1973: 3), LA v 3/109 at 1355 (Minister for Justice, Mr Maddison, 13 March). 388 Shatwell (1957: 335). 389 A similar idea was later put forward at the third Commonwealth and Empire Law Conference: (1965) 3 LSJ 86. 390 LA v 3/71 at 3574 (22 November 1967). 391 Campbell and Whitmore (1966: 32). 103
with existing practices.392 The president of the Law Society explained that in his organisation there had been ‘little movement or agitation’ for reform of criminal law and procedure, because ‘the average practitioner’ was ‘committed to interpreting the existing law and… discharging his responsibilities to his clients’.393 The Law Society’s apparent lack of interest in criminal law and its reform can also be understood as a consequence of the low status of criminal law and criminal law practice within the legal profession.394
By the mid-1960s, new advocates for reform were emerging to challenge the ‘business as usual’ orthodoxies of the NSW Law Society. In 1965, a group of Sydney’s ‘leading criminal lawyers’ called for greater attention to be directed to reforming the law of criminal procedure. The new group directly opposed the position of the Law Society by supporting mandatory third party attendance during the questioning of a suspect. The group distanced itself from the Law Society, complaining that the small proportion of lawyers engaged in criminal practice meant that the Law Society took little interest in criminal procedure reform.395
In Victoria and Queensland, the events surrounding the Beach and Lucas inquiries highlighted the division between the traditional conservative elements within the legal profession, and a new reformist element. This highlights the way the ‘structural’ change in the demographics of the profession, with a more reformist milieu from the universities, led to lawyers more often ‘triggering’ debate about policing, crime and law.
In Victoria, the initial trigger for the Beach inquiry had been allegations of police misconduct put forward by Dr Bertram Wainer. These allegations were said to have ‘stimulated a good deal of discussion within segments of the legal profession, especially among younger and more idealistic members of the profession,
392 SMH (1965: 11 June at 5). 393 Chesterman (1965). 394 Weisbrot (1990: 46).
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particularly barristers’.396 A group of 78 such lawyers wrote to the Age newspaper, calling for an inquiry into, among other things, police practices in investigating crime and the adequacy of the legal safeguards for suspects’ rights.397 The concerns raised by these lawyers were reflected in the terms of reference issued to Beach.398
A group of 20 unnamed lawyers later provided one of only two submissions to the Beach Inquiry that canvassed issues of policy and reform.399 The other came from Peter Sallmann, a legal practitioner and academic, on behalf of the Victorian Council for Civil Liberties. A number of the recommendations contained in these submissions were taken up in Beach’s report. One example was that police should be required to tape record an interrogation where practicable; another was that identification parades should be more closely regulated.400 Yet the formal bodies representing Victoria’s barristers (Bar Council) and solicitors (Law Institute) made no call for an inquiry into Dr Wainer’s allegations, no call for law reform, and no submission to the Beach Inquiry. Peter Sallmann, from the reformist camp, argued these bodies had failed to fulfil their responsibilities to the community.401
In Queensland, the conservative/reformist divide was most clearly reflected in the differing stances of its Law Society and Bar Association. The Law Society took a conservative line. In a letter to the Courier Mail,402 its President responded to revelations that Queensland police had been fabricating evidence by declaring that it was not:
necessary or desirable that I, for the society, should at this stage, at least, make any approach to the Police Minister, but that the matter
395 Chesterman (1965). 396 Sallmann (1982a: 252-53). 397 Age (1975: 12 March at 8). 398 Sallmann (1982a: 253). 399 Beach (1978: 123). 400 Beach (1978: 93-8, 116-23). 401 Sallmann (1978b: 89). See also Sallmann (1982a: 253-54).
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should be left, presently, with the Justice Minister and the Crown Law Office. It is my view that the matter would not be well served by hasty or ad hoc proposals… the matter should be kept in proportion.
The Bar Association took a more active stance. In the immediate aftermath of the same revelations, it sought a meeting with the Police Minister to propose a judicial inquiry.403 The Association subsequently called for such an inquiry to address not only specific allegations but also ‘the methods adopted by police in interviewing suspects’ and ‘whether there should be any change in those methods’.404
One explanation for the activism of the Queensland Bar Association was the fact that its President was Mr F G Brennan, long time advocate of criminal investigation law reform.405 Brennan had been one of the commissioners involved in preparing the ALRC Criminal Investigation report, and was later to be Chief Justice of the High Court of Australia.
In Queensland as in Victoria, individual lawyers spoke out more strongly in favour of reform than did the major representative bodies. The Courier Mail and the Sunday Mail printed a series of criticisms by barristers and solicitors of existing police practices and of the legal rules governing those practices.406 Examples were given of cases in which suspects had been held for long periods, had been denied the right to communicate with a friend, relative or lawyer, and had been presented with a fabricated confession. Such stories provided a far more troubling picture than suggested by the ‘keep it in proportion’ response of the Law Society. The Courier Mail’s own campaign for an inquiry into police practices placed heavy emphasis on the concerns raised by these lawyers.407 Similarly, in Victoria, the
402 CM (1976: 21 July at 4). 403 CM (1976: 18 July at 1; 19 July at 3). 404 CM (1976: 27 July at 3). 405 See, for example (1969) 43 ALJ 505-6. 406 CM (1975: 17 July at 4; 22 July at 3; 27 July at 22), Sunday-Mirror (1975: 10 August at 5). 407 CM (1975: 19 July at 1; 24 July at 4). 106
Age newspaper’s calls for an inquiry into police practices had drawn on the comments of the ‘78 lawyers’ who had called for an inquiry.408
In NSW, the decade from 1965 to 1975 saw the Law Society abandon its ‘we have no complaints’ stance on criminal investigation law. It proposed significant legislative reform in its submission to the Criminal Investigation inquiry, including that a person being interrogated by police be given the right to arrange for a third party to be present.409
Influences 2: Academics and Libertarians
The changing stance of some lawyers’ groups was one part of a broader growth in the influence of a left-wing civil libertarian paradigm in the late 1960s and early 1970s. The rise of left wing libertarian sub-cultures within academia and politics (as in the legal profession) was again a development that made it more likely that particular individuals from these arenas would initiate debate about criminal investigation law. So too was the establishment of a NSW Council for Civil Liberties. On the other hand, rising crime and rising concern about crime also prompted certain individuals far removed from any left-wing/ libertarian milieu to call for law reform, as we will see.
The left-wing libertarian critique of policing practice and legal regulation stemmed in part from the experience of student protesters against the Vietnam war, in their confrontations with police. One leading figure to emerge from this environment was Frank Walker, NSW Attorney-General in the Labor Government of Premier Neville Wran from 1976 to 1981. Walker’s academic background included a master’s degree in criminal law from the University of Sydney.410 One newspaper report, 18 months after Walker had become Attorney-General, described him as
408 Age (1975: 13 March at 8). 409 Law Society (1975). 410 Frank Walker Interview, 18 June 1997. 107
having ‘qualities of scholarship and idealism’ which ‘augured well for a period of constructive legal reform’.411 Premier Neville Wran had been a founding member of the NSW Council for Civil Liberties,412 and the election of Wran’s Government did signal a more libertarian approach to policing issues in a number of respects in comparison to other NSW governments before and since.413
Given these portents, the Wran Government and Walker’s term as Attorney- General were to prove a disappointment to those who had hoped for a significant human rights agenda (although perhaps only because of the heightened expectations of the period).414 Part of the explanation is the serious backlash that the Government suffered from police when it had pursued civil libertarian reforms. Most notably, police undertook a campaign of non-enforcement in the aftermath of Walker’s 1979 reforms to modernise and circumscribe public order offences and powers. In protest at the diminution of their public order powers, police refused to intervene in many public order matters where they clearly had sufficient power to intervene. Walker’s electorate was a focus of this activity, and there was a partial legislative reversal of the reforms in 1983.415
Soon after coming to power Walker had mooted possible reforms to confer rights on suspects held for questioning, but ultimately did not pursue the matter.416 Walker himself recalls that preserving existing liberties in the face of pro-law enforcement sentiment within the Government was a significant task, let alone advancing overtly libertarian reforms. There were close links between many prominent figures on the right of the Labor party and NSW policing circles.417
Academics had an important place in the left/ legal circles that sought to challenge police practices and police discretions in the 1970s. In the 1950s and 1960s, there
411 NMH (1977: 21 September at 2). 412 Steketee and Cockburn (1986: 51). 413 Finnane (1999: 18). 414 Steketee and Cockburn (1986: 230, 334-37). 415 Egger and Findlay (1988), Steketee and Cockburn (1986: 286). 416 Sun (1976: 2 June at 9). 417 Frank Walker Interview, 18 June 1997. 108
had only been a small number of full time academics in Australia. One of the few academic commentators on criminal investigation matters in NSW had been Professor Shatwell, Dean of the University of Sydney Law Faculty. His contribution to debate, however, runs contrary to the stereotype that legal academics are always civil libertarians. Shatwell spoke out on a number of matters, including the desirability of conferring telephone tapping powers on NSW police.418 Most notably, he was an early proponent of giving police a power to detain suspects for questioning, long before this idea received support from the Mitchell Committee, ALRC, and Lucas Inquiry.
Shatwell pursued this cause as a member of the Herron Committee. At the outset of the Committee’s deliberations in 1965, Shatwell was a lone voice, arguing that any reforms to guidelines governing police questioning would be meaningless unless the absence of a power to detain suspects for questioning was addressed:419
I want to put this point of view very forcibly… the present state of the law is confused and uncertain and puts the good police officer in the dilemma of having to either be honest or conscientious, and it is very difficult for him to be both… I cannot see how any type of investigation can proceed if a person is not held for questioning, whether it is done by the device of a holding charge or whether it is done by bluff.
Even the High Court, in hearing an appeal, has known that the accused has been illegally held, and everybody acquiesces in this, which is very bad.420
418 SMH (1967: 21 June at 4). 419 ‘Admissibility of Confessional Statements. First Meeting of Sub-committee, 21/12/65’ pp 1-3 (NSW Archives Box 6/4505), Institute of Criminology (1973b: 63). 420 ‘Second Meeting of Sub-committee, 8th March 1966’, Transcript, p 9 (NSW Archives Box 6/4505). 109
Shatwell favoured a detention period of up to 48 hours before the suspect would have to go before a magistrate.421 He was also implacably opposed to conferring rights on suspects, such as a right to the presence of a third party.422
Other academic commentators began to join the field in the mid-1960s. The first sustained academic analysis of Australian criminal investigation laws came with the 1966 publication of Freedom in Australia by Enid Campbell and Harry Whitmore. Campbell and Whitmore proposed that police be given enhanced powers to combat crime, including a power to detain suspects for questioning. However, they differed from Shatwell in arguing that greater attention should be paid to the possibility of tape recording interrogations.423
With the rapid growth of higher education in Australia from the late 1960s, the academic input to the police powers debate became more diverse. In 1968, the Australian and New Zealand Criminology Society was founded, along with its journal. While the journal had a conservative slant in its early days, with little criticism of current practices or advocacy of reform,424 over time younger criminologists called for greater attention to these matters.425 Notable among the academics who became involved in public debate were criminologist Duncan Chappell (who became a leading proponent of random breath testing) and law lecturer Gareth Evans, a member of the Victorian Chief Justice’s Law Reform Committee and the primary author of the ALRC Criminal Investigation report.
The membership of the Mitchell Committee reflected the key position of academics in the reformist paradigm of the early 1970s. Apart from Justice Mitchell, the three other members of the Committee were all University lecturers,
421 Institute of Criminology (1973b: 71). 422 ‘Second Meeting of Sub-committee, 8th March 1966’, Transcript, p 10 (NSW Archives Box 6/4505). 423 Campbell and Whitmore (1966: 30, 38-39, 56, 69-70). 424 O’Connor (1980), Pratt and Priestley (1999: 322-23). 425 See, for example, Hawkins and Chappell (1967), Wilson (1973). 110
two in law, one in criminology.426 The contribution of academics was strongly felt in the case of the ALRC inquiry. Justice Michael Kirby later recalled that:
the people who were working with us were criminal law teachers who insisted that we should seek to respond to the problems that we were given in our terms of reference by examining, not just what judges had said and academic lawyers had written, but by looking at what actually happened in the course of criminal investigations. It was for that reason that innovations were adopted to go around with police in police vans in the course of criminal investigations and to observe and learn from what actually happened.427
Another group who made their mark in the late 1960s and early 1970s were the members of the NSW Council for Civil Liberties. In August 1963, a Sydney University economic history lecturer named Ken Buckley delivered an address to the NSW Humanist Society entitled ‘Police Methods and Civil Rights’. Buckley described the NSW Police as ‘more evil than necessary’, expressed concern about citizens’ ignorance of their rights, and warned that evidence put forward by police should be scrutinised with the greatest care.428
Two months later, the NSW Council for Civil Liberties was founded at a public meeting in Sydney, with Buckley as its secretary.429 An Australian Council for Civil Liberties was already in existence, but was Melbourne based.430 The NSW Council’s initial membership of around 100 grew to 250 by February 1964, 431 and almost 1000 by late 1967.432 This was also a time of growth and influence for the American Civil Liberties Union, founded in 1917.433 One of the successes of the American Civil Liberties Union had been a booklet entitled ‘If You Are Arrested’.
426 Their respective backgrounds were detailed in Advertiser (1971: 18 December at 2). 427 Justice Michael Kirby interview, 2 June 1997. 428 DT (1963: 21 August at 17). 429 Civil Liberty (1964: 1 at 1). 430 Freckleton (1999: 133-34). 431 Civil Liberty (1964: 1 at 2). 432 Civil Liberty (1967: 13 at 2).
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The booklet explained in plain English the legal position of persons under arrest. Many copies had been sold and it had a significant educational effect.434
One of the NSW Council’s first projects was to prepare and publish a NSW version of ‘If You Are Arrested’.435 This explained, for example, that an ‘arrested person has a right to be taken before a court without unreasonable delay’ but that in practice ‘the delay may be appreciable’.436 The first print run of 5000 copies sold rapidly,437 and numerous printings and editions appeared in subsequent years.
From the outset, one of the NSW Council’s major objectives was to highlight cases of improper police conduct, and to provide legal assistance to pursue some cases in the courts.438 The Council drew on the insights it gained from receiving and pursuing these complaints to identify and criticise some patterns of police behaviour, for example, the general practice of refusing to allow a person arrested for public order offence to make a telephone call.439
As the public debate about criminal investigation law and policy gained momentum, so did the Council’s role in that debate. In 1967, it expressed concern at calls to give telephone tapping powers to NSW police.440 In 1968, it criticised proposals from England to abolish the right to silence and allow detention for questioning.441 In 1969, Council members met with a number of Members of Parliament from each side of politics to form a Parliamentary civil liberties group in advance of the debate on the Listening Devices Bill 1969.
The Council’s role in the debate about the Listening Device Bill was to be typical of its role in many future debates, as an opponent of proposals to curtail civil
433 Walker (1990: 20, 217). 434 Walker (1990: 247-48). 435 Civil Liberty (1964: 1 at 2). 436 Buckley (1965). 437 Civil Liberty (1964: 2 at 3). 438 See, for example, Civil Liberty (1964: 1 at 5; 1965: 6 at 8-9; 1968: 15 at 5-6). 439 SMH (1973: 20 October at 6). 440 SMH (1967: 21 June at 4). 441 Civil Liberty (1968: 14 at 2). 112
liberties, rather than as a proponent of measures to enhance them. The Council opposed the very notion of conferring listening device powers on police, arguing that these should be reserved for matters of national security. It also argued if listening devices were to be available, their use should require judicial authorisation.442 Its views were taken up in Parliament by left wing civil libertarian George Peterson, who described the Bill as ‘a first and major step towards the establishment of a totalitarian state’.443
Although the Council was forced to concede in 1969 that it had enjoyed little success in influencing the content of legislation,444 it was given official recognition with an invitation to provide a member of the Amsberg Committee that was to develop proposals to reform criminal law and procedure. It took up the offer with some enthusiasm,445 but again found itself the unsuccessful dissentient. For example, the Council representative was alone in opposing a provision for the execution of search warrants at night, and in proposing that only senior police be allowed to apply for search warrants.446 In July 1975, the Council withdrew from the Committee, citing the Committee’s narrow focus and lack of consultative processes.447
Even the Council’s detailed submission to the ALRC Criminal Investigation inquiry emphasised all of the things the Council opposed, such as the use of listening devices in criminal investigations. It offered little in the way of a positive agenda, such as suggested rights for a suspect in custody.448 There were exceptions: for example, at various times the Council promoted proposals for mandatory destruction of fingerprints or photographs on acquittal.449 The Council and its interstate counterparts also played an indirect role in generating law reform
442 SMH (1969: 24 September at 2). 443 LA v 3/81 at 10601 (18 September 1969). 444 Civil Liberty (1969: 22 at 3). 445 Civil Liberty (1971: 36 at 2). 446 See LA v 3/109 at 1359-60 (Second reading speech on the Crimes and Other Acts (Amendment) Bill by the Minister for Justice, Mr Maddison, 13 March 1974). 447 Civil Liberty (1975: 61 at 4). 448 NSW Council for Civil Liberties (1975b), ALRC (1975c). 449 Civil Liberty (1975: 62 at 2). 113
debate, by highlighting instances of police misconduct. Councils for Civil Liberties were also instrumental in pressuring Australian governments to introduce external oversight of complaints against police. In turn, this external oversight resulted in greater exposure of police practices, further contributing to pressure for law reform.450 Past and present Council members also participated in the reform debate as individuals. For example, Justice Michael Kirby was a member of the NSW Council of Civil Liberties before he chaired the ALRC at the time of its Criminal Investigation inquiry.
Influences 3: Crime and Police
It is important to emphasise that the increased debate about police powers in the 1970s was driven from two quite different directions. One developed along socially liberal/ progressive/ modernising lines, with a significant civil libertarian emphasis, exemplified by the ALRC Criminal Investigation report. The other developed along law and order/ socially conservative/ fear of crime lines. It was in this later category that the police contribution usually fell.
Starting in the late 1960s, an increasing number of those concerned about the decline of ‘law and order’ identified enhanced police powers as a possible response. Sir Reginald Scholl, a former Victorian Supreme Court Justice, was one of the first to articulate the place of enhanced police powers within a broader ‘law and order’ framework. It is notable that Scholl made a significant contribution to both the case for greater regulation of police, in his calls for tape recording discussed above, and to the case for greater powers and discretion.
Scholl made the case for greater police powers and discretion in a 1968 speech to the American Bar Association Conference of Chief Justices. In his speech, Scholl expressed dismay that in America ‘so many people - lawyers included - appear to
450 See chapter 8. 114
suspect constituted authority rather than respect it, and even in many cases to revile it’.451 He argued that legal safeguards and rights in the criminal investigation context made it unnecessarily difficult to prove an offence, and called for the response to police wrongdoing to be severed from considerations of admissibility.452 His admonition to the judiciary was straightforward: ‘It is better to be strong and firm: even if sometimes one is wrong’.453
The fact that judges like Scholl, Herron and McClemens were the leading exponents of stronger legal backing for police and tougher criminal justice policies partly reflected the continuing absence of police from the public debate. Commissioner Allan did call for telephone tapping powers from time to time,454 but this was the exceptional case. The NSW Police Association was even quieter. When Chief Justice Herron gave his provocative press conference at Sydney airport in 1969 to call for a head-on collision with crime, his comments drew responses from Federal and State Ministers, lawyers, academics and newspapers.455 Yet press reports carried no comment from the Police Commissioner or the Police Association.
This reticence to debate ‘police powers’ issues needs to be understood in the context of the workings of the criminal justice system at the time. As noted in chapter 2, until 1970 the NSW Police Force was successfully engaged in an elaborate attempt to play down the problem of crime. This encouraged an emphasis on the adequacy of existing frameworks for fighting crime and discouraged arguments based around the need for new approaches.
The low visibility of much policing and the lack of external oversight and control meant that some practices that would not have withstood extensive public exposure could continue undisturbed (for example, verballing). There was
451 Scholl (1968: 142). 452 Scholl (1968: 145). 453 Scholl (1968: 143). 454 SMH (1967: 21 June at 4; 22 June at 4; 1968: 26 June at 8).
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therefore an incentive for police to avoid drawing attention to current practices, something that any debate about ‘powers’ was likely to do. This point was emphasised by Campbell and Whitmore in their 1966 book Freedom in Australia, in seeking to explain that Australian police had shown remarkably little interest in the adequacy of their powers.456 Sallmann and Willis put forward a similar argument in 1984, arguing that as police had been left to devise their practices with little external oversight or regulation, they had developed practices with a ‘general taint of illegality about them’. As a result, there was a ‘general unease among police about any examination of their procedures and practices’.457
Furthermore, police did not need to pursue ‘powers’ because in reality a lack of powers was not a significant restraint on their conduct. As we have seen, and will consider further in chapters 6 and 7, detention for questioning and even the manufacturing of confessions was allowed to occur with virtually no restraint from the courts. Police Commissioner Norm Allan was able to set up a telephone tapping capacity in 1968, which went undiscovered for nearly two decades, and which the Stewart Royal Commission was to find had been both sophisticated and highly effective.458
Why be slapped down for suggesting law reform, as Allan was in 1963, when the whole process could be short-circuited by simply ignoring the law? Even though police arguably had no power to obtain a search warrant to find evidence, there is little record of any practical problems resulting from this. The overall setting was one in which police had remarkable freedom of action through a combination of open-textured law, the complicity of courts and the legal system, and lack of alternative oversight and control mechanisms to the courts. This picture of policing practices largely unfettered by external constraints is one that has been
455 SMH (1969: 31 January at 1; 1 February at 2, 5; 4 February at ), DT (1969: 31 January at 2), SH (1969: 2 February at 28). 456 Campbell and Whitmore (1966: 32), 457 Sallmann and Willis (1984: 38). 458 Stewart (1986: 338-39). 116
highlighted both in the international studies of policing and law459 in Australian texts,460 and in the reports of the mid-1970s, as we will see shortly.
Police silence limited consideration of reform in other quarters. There were occasions where representatives of the NSW Government specifically said that if the Police Commissioner had not asked for a power, it was not needed. The rejection of a 1971 proposal for mandatory disclosure by a suspect of their name and address was an example of this reasoning.461
Yet things were about to change. Developments in Britain offered a glimpse of the near future for NSW. There, senior police and the Police Federation had remained out of public debate until the 1960s. By the early 1970s, however, both had become vocal in the law and order debate.462 In the same period, Victorian police had played a role in stimulating the rationalisation of arrest laws.463
A key context for the emergence of law reform debate and police calls for greater powers was rising crime, and rising concern about crime. Writing in the years after the Criminal Investigation report had been written, Justice Kirby identified these as major factors behind the spate of inquiries into criminal investigation law during the 1970s.464
Although concern about crime and ‘crime waves’ is an ever present feature of life in modern society, it was a much bigger feature in debates about policing and law after the late 1960s than in the previous two decades. The changing climate was manifested in various ways. In 1966, the Askin Government increased maximum sentences for a number of offences to ‘express the community’s concern about
459 See Bittner (1990: 34-38, 92, 112-15), McBarnet (1983), Dixon (1997: ch 1), Skolnick (1994: 4), McConville, Sanders and Leng (1991: 175), Reiner (2000: 86-87). 460 For example Sallmann and Willis (1984: 35-39). 461 LC v 3/95 at 3208 (Hon J B Fuller, 24 November 1971). 462 Reiner (2000: 71-74), Loader and Mulcahy (2001a). See, for example, Mark (1974). 463 Evans (1972: 508). 464 Kirby (1979: 626). 117
the increase in certain types of crime’.465 In October 1969, a member of the NSW Opposition called for a ‘complete review’ of NSW policing, because the crimes being committed in NSW were now comparable with the crimes committed in ‘Big American cities’.466
In 1970, the Askin Government had secured the enactment of the Summary Offences Act 1970 and related public order legislation, one objective of which was to enact new offences to assist police to combat street crime and disorder. This legislation had arisen out of the conflict between police and protesters, particularly in the context of the Vietnam War and the youth counter-culture. This conflict was to have a broader significance for the future of policing. By contributing to a sense that order was breaking down, it fuelled ‘law and order’ politics. Conversely, by creating distrust and hostility between police and many middle class students, it led to a less trusting relationship between the police and aspects of the middle class than in the 1950s.467
In 1972, leading Australian criminologists Duncan Chappell and Paul Wilson had found a significant deterioration in public respect for Australian police between 1967 and 1970. They argued that the polarisation of the ‘law and order’ debate was a key factor, with the debate surrounding the NSW Summary Offences Act 1970 being a prime example. They also argued that this polarisation was likely to drive police towards stronger identification with conservatism and stronger antagonism towards their critics.468
Frank Walker, NSW Attorney-General from 1976 to 1981, argues that:
The Vietnam years had brought a huge amount of heroin into Sydney and there was a lot of drug related crime and I think that started doing
465 LA v 3/64 at 2568 (Second reading speech on the Crimes (Amendment) Bill 1966 by the Attorney-General, Mr McCaw, 16 November 1966). 466 LA v 3/82 at 1807 (Mr Cox, 22 October 1969). 467 See further Chappell and Wilson (1969), Chappell and Wilson (1972: 317-23), O’Connor (1974: 77), York (1987), Reiner (2000: 80).
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the damage but, the major perception of crime was [from] American television. You know, people brought American crime into their lounge rooms. They extrapolated from there. They assumed that what was really happening here and so fears and apprehensions developed.469
By the early 1970s, there had already been a number of calls to respond to crime by removing legislative restraints on police. As we have seen, Chief Justice Herron made this argument very forcefully on his return from a tour of Britain and America in 1969. Professor Shatwell had earlier suggested that ‘the extent to which investigative process is regulated by external controls will always vary according to the magnitude of the problems presented by crime at any given time’.470 In June 1966, Professor Shatwell argued that unless the community reconsidered its thinking on police powers ‘they are going to play their part in crime… London is rife with it, and also the United States’.471 He later emphasised that his concern was to secure broader police powers ‘before we reach the stage that has been reached in London’. 472 In May 1967, Justice McClemens warned that Australia must avoid the ‘due process’ limits that had impeded American law enforcement, or else it ran the risk of experiencing ‘serious crime’.473 Again, perceptions of the American criminal justice system were influencing the debate about criminal investigation law in NSW.
Concern about the NSW crime statistics gained a whole new dimension in 1970, in the wake of the Arantz affair. Phillip Arantz was a NSW police officer who had discovered systematic false recording of crime figures in the course of his career, and in particular while working on the computerisation of criminal records. Arantz
468 Chappell and Wilson (1972). 469 Frank Walker Interview, 18 June 1997. 470 ‘First Meeting of the Sub-Committee, 21 December 1965’ p 5 (NSW Archives Box 6/4505). 471 ‘Fourth Meeting of the Sub-Committee, 8 June 1966’ p 13 (NSW Archives Box 6/4505). 472 ‘Fourth Session of the Full Committee, 4 May 1967’ p 10 (NSW Archives Box 6/4505). 473 ‘Fifth Session of the Full Committee, 8 May 1967’ p 8 (NSW Archives Box 6/4505). 119
found that the ‘clear up’ rate was being massively inflated, so that many more crimes were going unsolved than the public was led to believe.474
The revelations in this colourful affair (in which NSW Police Commissioner Norm Allan sought to have Arantz declared insane) increased the pressure on the NSW Police Force to improve its success rate against crime. Where the Force had previously been lavishly praised for its high clear up rate,475 the new figures revealed serious crime was 75% more prevalent than was shown by the old figures.476 The Sydney Morning Herald responded by warning that the ‘Government and the police authorities must realise that the present crime situation is simply not acceptable’.477 This was a sudden and dramatic instance of a phenomenon experienced elsewhere at this time, namely a loss of confidence in the capacity of police to combat crime.478
For a police organisation facing criticism of its efforts to contain crime, an obvious response was to highlight the factors limiting its capacity to fight crime, including the inadequacy of its powers. This link between crime and powers was clearly apparent in a presentation that Detective Inspector W Clyne made to the Institute of Criminology’s right to silence seminar in 1973. Clyne argued that:
criminal statistics from this and many overseas countries show a disturbing increase in the crime rate… The question… has been raised by eminent legal men as to whether this increase in the crime rate is attributable in some measure to the out-dated procedures under our laws governing the investigation of offences and the prosecution of those responsible… Police now turn to the Legislature for assistance and additional powers
474 See Arantz (1993) for a detailed account. Pioneering Australian criminologists Gordon Hawkins and Duncan Chappell had noted in 1966 that recorded crime was inexplicably much lower in NSW than Victoria, and that the clear-up rate was much higher: 40 ALJ 307 at 311-12. Their comments do not appear to have gained much attention. 475 See, for example, NW LC v 3/67 at 478 (Hon Asher Joel, 16 August 1967). 476 SMH (1972: 8 September at 6). 477 SMH (1972: 8 September at 6).
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to enable them to combat the rising crime rate and the organised, sophisticated crime of today…479
Clyne went on to argue that if failure to assist police or cooperate with police questioning was made an offence, police ‘would be in a much stronger position to control crime and criminals’.480 Coupled with other powers, including powers to detain suspects for questioning and to conduct line-ups, this would allow the ‘efficient and capable Police Force’ to ‘fight crime without being unduly fettered’ and to ‘bridge the gap between crime rate and crime detection’.481 Clyne concluded that if the NSW Police Force could ‘get the benefit of any legal assistance that is forthcoming then we can do an even better job for you’.482
In 1973, Campbell and Whitmore had noted the reluctance of Ministers to involve themselves in matters concerning police practices and policy.483 Increasing concern about crime was, however, forcing governments as well as police to become more engaged in issues relating to the framework for investigating crime. This was reflected in the decisions to set up various inquiries and committees to examine criminal procedure, including the Amsberg Committee in NSW, the Mitchell Committee in South Australia and the Commonwealth’s ALRC inquiry. The drawing in of politicians to matters of criminal procedure was also apparent in section 10 of the Listening Devices Act 1969, which required the NSW Police Commissioner to report to the Minister on the use of listening devices under that Act. The existence of a legislative requirement to keep the Minister informed of such operational matters was a marked departure from anything found in the common law model of criminal investigation.
478 In an English context, see Reiner (2000: 78). 479 Institute of Criminology (1973b: 57-58). Clyne made no mention of the fact that a large part of the dramatic rise in NSW reflected the fact that the figures were no longer being doctored. 480 Institute of Criminology (1973b: 70). 481 Institute of Criminology (1973b: 74). 482 Institute of Criminology (1973b: 121). 483 Campbell and Whitmore (1973: 20). 121
In the debate on the Listening Devices Bill, the Government emphasised in a more general sense that the Attorney-General took overall responsibility for the legislation.484 To that end, he would monitor whether listening devices were being used effectively and for appropriate kinds of offences,485 and would develop guidelines for senior police on the authorisation of listening devices. 486
Influences 4: National and International
During the 1970s, debate about criminal investigation law in NSW was influenced more than ever before by developments in other jurisdictions. Indeed, much of the debate was truly national, centring on the response to the ALRC Criminal Investigation report. There were numerous links between NSW and other jurisdictions, some more apparent than others. Study tours by NSW politicians, judges, police and others (eg, the visit by Chief Justice Herron to Britain and the United States described earlier) were one example. The Commonwealth’s consultations with the States in framing the Criminal Investigation report and subsequent legislative proposals were another. Less formally, news reports and even fictional accounts played a role.
Cross-jurisdictional influences were greatly heightened by the fact that similar social, economic and political developments were occurring across Australia and in other western countries. For example, the American and British responses to rising crime fed into the Australian response to rising crime. This was a further manifestation of the ‘debate multiplier’ noted in the previous chapter: with proposals for legislative reform in other jurisdictions fuelling the reform debate in NSW, and vice versa. Cross-jurisdictional structural changes provided further triggers for debate.
484 LA v 3/81 at 865 (Mr McCaw, Attorney-General, 11 September 1969) and LC v 3/83 at 2680- 81 (Hon J Fuller, 18 November 1969). 485 LC v 3/83 at 2672, 2674 (Hon J Fuller, 18 November 1969). 486 LC v 3/83 at 2680 (Hon J Fuller, 18 November 1969). 122
In the period from the early 1970s, the Commonwealth was increasingly active in criminal justice matters, with spill over effects for the States. When a warrant issued to the Commonwealth Police by a NSW justice of the peace was declared invalid, the fitness of NSW justices to issue warrants was called into question.487 When Commonwealth attempts to secure evidence against alleged Croatian terrorists drew NSW police into controversial dawn raids, the NSW Government as well as the Commonwealth faced criticism and embarrassment.488 When the Commonwealth asked the ALRC to make recommendations on criminal investigation law, the implications for the States were profound, as we will see.
The drawing up of the Listening Devices Bill 1969 and the debate that it generated illustrated a number of themes that would recur in criminal investigation legislative reform in NSW. First, while Victoria failed to secure any commitment to uniform national listening devices legislation, by raising the matter it helped prompt a number of States, including NSW, to legislate on this topic.489 This was typical of later developments, in that proposals and reforms in one State have tended to influence those in another through publicity and the power of precedent, rather than through formal agreements or commitments.
Secondly, the debate on the Listening Devices Bill revealed considerable attention to laws and recommendations from other jurisdictions, as possible models for NSW. A host of interstate and international authorities, reports and legislative provisions were invoked both to justify the terms of the Government’s Bill, and to suggest that it should have been framed differently.490 This pattern would be repeated for future reforms.
487 See LA v 3/80 at 206-8 (Questions without notice by Mr Chaffey, 13 August 1969), Pearce (1970). 488 See SMH (1973: 3 April at 1), LC v 3/104 at 4342-43 (Hon J Fuller, 4 April 1973), MacDonald (1973). 489 This influence was acknowledged in NSW: LA v 3/75 at 1175-76 (Mr Maddison, Minister for Justice, 24 September 1968) and v 3/76 at 2632-33 (Mr McCaw, Attorney-General, 20 November 1968). The laws enacted in the aftermath of Victoria raising the matter in 1968 were the Listening Devices Act 1969 (Vic), Listening Devices Act 1969 (NSW), Invasion of Privacy Act 1971 (Qld), and Listening Devices Act 1972 (SA). 490 Those supporting the conferral of listening device powers on police cited, amongst others, the views of Victorian law professor Zelman Cowen (LC v 3/83 at 2669), the English ‘Birkett 123
Thirdly, the overlapping responsibilities of the Commonwealth and the State led to the enactment of formal legislative rules to regulate the relationship, which was in turn the source of some controversy. Section 4 of the Listening Devices Bill 1969 allowed the Commonwealth to authorise the use of a listening device in relation a Commonwealth matter in NSW.491 The Opposition leader, Mr Hills, alleged that this reflected a deal under which the Commonwealth would be able to use listening devices in return for giving NSW police telephone tapping powers.492 Attorney-General McCaw strenuously denied this allegation.493 More of these Federal legal linkages would be seen in the years ahead. In late 1972, the new Commonwealth Attorney-General Lionel Murphy said he was considering Commonwealth legislation to override State listening device laws and limit their use.494 This was not pursued, perhaps in recognition of the limited capacity to do this under the Commonwealth Constitution.
Set against the civil libertarian tendencies of Lionel Murphy and his ilk were strong messages coming out of Britain and America about the need for stern measures to combat crime. In early 1964, the Australian Law Journal had expressed support for the comments of ‘eminent English lawyer, Lord Shawcross’ who had famously declared that it was time to stop using ‘kid gloves’ to deal with criminals, in light of the ‘grave’ crime rate. In particular, Lord Shawcross had
Committee’ (LC v 3/83 at 2672-73), the British Columbia ‘Commission of Inquiry into Invasion of Privacy’ (LC v 3/83 at 2662), United States President Nixon (LC v 3/83 at 2658), and the United States ‘President’s Commission on Crime’ (LC v 3/83 at 2658-59). Those opposing the conferral of listening device powers on police, at least without judicial authorisation, cited the views (amongst others) of former Professor Cowen (LC v 3/82 at 2146-48), Commonwealth Attorney- General Sir Garfield Barwick (LC v 3/82 at 214), the English ‘Birkett Committee’ (LA v 3/81 at 832-33; LC v 3/82 at 2150), and former United States Presidents Roosevelt, Kennedy and Johnson (LA v 3/81 at 828, 863 and LC v 3/81 at 860 and v 3/83 at 2663, 2665), and the terms of the recently enacted Victorian legislation, which required judicial authorisation (LA v 3/81 at 833, 884; LC v 3/83 at 2651, 2663, 2665). The overlap in these lists shows how the significance of statements made by such authorities is open to interpretation. 491 NSW v 3/81 at 830 (Mr Hills, 10 September 1969). 492 NSW v 3/81 at 833 (Mr Hills, 10 September 1969). 493 NSW v 3/81 at 833 (Mr McCaw, 10 September 1969). 494 DT (1972: 22 December at 7). 124
suggested giving police the right to detain and question a suspect in the presence of a magistrate.495
The lessons of rising crime in Britain and America were to be repeatedly cited by those who supported enhanced police powers and opposed greater regulation of police, particularly in the late 1960s. During the deliberations of the Herron Committee, for example, Justice McClemens referred to ‘the problem at the present time’ in England, whereby ‘the scales of justice are… tilted too much in favour of the accused’. He also warned that, having read the United States Presidential Commission’s Report on Crime, he was convinced that Australia ran the risk of ‘such serious crime’ as experienced in the United States.496 We have already seen that Chief Justice Herron himself was convinced that the American and British experience with crime had powerful lessons for NSW, especially in the framing of adequate police powers.
In 1968, the British Section of the International Commission of Jurists made its own proposal for a system of detention and questioning before a magistrate, and the consequent abrogation of the ‘right to silence’. The proposal triggered debate within Australia,497 with the Australian Law Journal treating the proposal as further evidence that Britons were reconsidering whether ‘the law has in fact been too fair to suspected law breakers’.498 In 1972, the English Criminal Law Revision Commission proposed abolition of the right to silence, but without any countervailing requirement for interrogation to take place before a magistrate.499
The 1972 proposal ‘unleashed a stormy controversy throughout the British legal world’.500 While that controversy saw off (for the time being) implementation in
495 ALJ (1964a: 307). 496 ‘Fifth Session of the Full Committee, 8 May 1967’, p 8 (NSW Archives Box 6/4505). 497 See, for example, ALJ (1968), Civil Liberty (1968: May at 1-2). 498 ALJ (1968: 447). 499 CLRC (1972). 500 Institute of Criminology (1973a: 1). 125
Britain,501 it did help to draw attention to the merits of the right to silence in Australia.502 The fledgling Australian and New Zealand Journal of Criminology gave its support to the proposal,503 while the University of Sydney Institute of Criminology held a seminar on the topic because the ‘entire legal community in Australia was intensely involved in these issues’.504 The seminar divided on fairly predictable lines, with curtailment of the right to silence receiving support from NSW Police Inspector Clyne, Chief Magistrate Farquhar, Justices Hutley and McClemens, and the Deputy Senior Crown Prosecutor.505 Retention of the right to silence was favoured by Justice Neasey of Tasmania, the Senior Public Defender for NSW Howard Purnell, and a senior lawyer representing the NSW Council for Civil Liberties.506
The Criminal Investigation report by the ALRC contained the most systematic drawing together of material from the Federal level, the States and Territories, and overseas, that had ever been undertaken in the context of criminal investigation law in Australia. The ALRC conducted hearings right around Australia, in Sydney, Melbourne, Brisbane, Adelaide, Perth, Hobart, Canberra, Darwin, and Alice Springs. It received written submissions from Police Associations in five States and Territories, and from Councils for Civil Liberties in six.507
The ALRC paid close attention to the reports that came before it, finding particular merit with the recommendations of the Victorian Chief Justice’s Law Reform Committee.508 For example, the Victorian Committee had recommended that police be required to notify a suspect when he or she was in lawful custody, in order to clarify the nebulous dividing line between voluntary assistance and arrest
501 Ashworth (1998: 20). The right to silence was subsequently curtailed by the Criminal Justice and Public Order Act 1994 (UK). 502 See, for example, SMH (1973: 27 February at 2), Maddison (1974b). 503 Bartholomew (1972). 504 Institute of Criminology (1973a: 1). 505 Institute of Criminology (1973a: 3, 11-12, 69-70, 74, 81-82, 107, 111, 130). 506 Institute of Criminology (1973a: 17-21, 51-55, 76-78). 507 See ALRC (1975a: 155-57). 508 See Evans (1975: 4), ALRC (1975d: 6, 17, 19-20; 1975f: 10). The prominent role that Gareth Evans played in each inquiry is likely to have been a factor in this. 126
and to thereby clarify a suspect’s rights at any given time.509 The ALRC strongly endorsed this proposal, quoting at length from the Victorian Committee’s report.510 The Victorian Committee had further argued that fingerprinting powers should only be available where police reasonably believed fingerprinting to be necessary for identification purposes or as evidence of an offence.511 The ALRC endorsed this view as well.512 In turn the Beach Inquiry took the ALRC’s recommendations as the starting point for most of its own proposals.513 This was truly the emergence of a period of a national debate.
The ALRC also made extensive use of the limited academic research on policing that was then available, particularly from the United States.514 For example, it cited research showing the heavy costs of holding suspects on remand, and that such remand led to worse outcomes in court than for those at liberty before trial. On the basis of this research, the ALRC recommended provisions to encourage the use of summons rather than arrest.515 The ALRC’s decision to recommend a 4 hour period of detention for questioning was defended on the basis of Australian and American research suggesting that 97% of cases were disposed of within a 4 hour period.516 This use of American research was a rare example of hard facts about the American experience influencing the course of debate and reform, rather than impressions of crime and justice in America from television and movies.
The ALRC’s inquiry was also novel in that its terms of reference had directed it to have ‘regard to… the commitment of the Australian Government to bring Australian law and practice into conformity with the standards laid down’ in the International Covenant on Civil and Political Rights’.517 While the ALRC spent little time dealing with the terms of the International Covenant, it did pick up some
509 CJLRC (1972: 4). 510 ALRC (1975a: 44-45). 511 CJLRC (1975: 9). 512 ALRC (1975a: 50). 513 See Beach (1978: 64, 67, 72, 74-75, 78-79, 90-93, 99, 112, 120-22). 514 See ALRC (1975d: 14, 22, 26; 1975e: 23). 515 ALRC (1975a: 13). 516 ALRC (1975a: 40-41). 517 ALRC (1975a: ix). 127
Covenant terminology in recommending a ‘prohibition upon the inhumane or degrading treatment of persons in custody’.518 It is also notable that when Bills were presented to the Commonwealth Parliament in 1977 and 1981 to implement the Criminal Investigation recommendations,519 the Government made particular note of the consistency between the Bills and the International Covenant, though some commentators disputed this claim.520
Influences 5: Misconduct Revelations and Theories
A central issue for most of the inquiries of the mid-1970s was the need to grapple with serious discrepancies between police practices and the existing law. Allegations of police misconduct were responsible for the establishment of the Beach and Lucas inquiries. The recommendations of these inquiries, and others, were heavily influenced by the assessment of the nature, sources and prevalence of unlawful police conduct.
The Beach Inquiry was set up to inquire into allegations that Victorian police had engaged in corruption, harassment of the public and other improprieties.521 Beach found that unlawful and improper conduct on the part of Victorian police was endemic, so much so that Beach sought and obtained broader terms of reference, in order that he could recommend sweeping reforms and not just make findings on particular allegations.522
Ultimately, Beach produced a catalogue of police abuses of power, including ‘instances of assault upon innocent members of the public, the unlawful apprehension and detention of members of the public, conspiracy and perjury designed to conceal such malpractices, [and] the harassment and intimidation of
518 ALRC (1975a: 59, 149). 519 House of Representatives Debates v 104 at 563 (Mr Ellicott, Attorney-General, 24 March 1977) and Senate Debates v 92 at 2292 (Senator Durack, Attorney-General, 18 November 1981). 520 Crim LJ (1979). 521 Beach (1978: 7, 10-11).
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members of the public’.523 Beach concluded that ‘evils have been uncovered which demonstrably require remedy’.524
Similar revelations emerged from the Lucas Inquiry in Queensland. That Inquiry had been set up as a direct result of an outcry over police conduct, centring on the revelations in the ‘Southport’ case.525 In the Southport case, a magistrate had concluded that a number of Queensland police officers had conspired to concoct a case against the defendants on an illegal gaming charge and had fabricated evidence to that end. The revelations in the Southport case led to a torrent of allegations of unlawful and improper conduct by the Queensland Police Force, put forward by politicians, the media, lawyers’ associations, church groups and private individuals.526 After the Court of Appeal had endorsed the findings against police made by the magistrate in the Southport case, the Lucas Inquiry was announced.
The setting up of the Lucas Inquiry did not reflect any reforming zeal on the part of the Bjelke-Peterson conservative Government. Indeed, it coincided with the dismissal of a modernising anti-corruption Commissioner, Ray Whitrod, and his replacement with Terence Lewis who was later to be gaoled for corruption. Rather, it was a gesture to pacify critics of Queensland police practices.527
The Lucas Inquiry was to find that:
522 Beach (1978: 11). 523 Beach (1978: 13-14). 524 Beach (1978: 60). 525 Lucas Committee (1977: 1-2). 526 See, for example CM (1975: 18 July at 1 and 3; 19 July at 1 and 3; 21 July at 2; 27 July at 22; 6 August at 3; 9 August at 3; 10 August at 1 and 5; 13 August at 4). 527 On Whitrod’s conflict with the Queensland Government and demise, see Bolen (1997). There is an irony worth mentioning that is associated with the Southport case and the way it led to the Lucas Inquiry. The fabrication of evidence in that case came to light because of the efforts of a ‘whistleblower’, Constable Davey. Davey had secretly tape recorded a series of conversations in which fellow officers had planned the fabricated case. The irony is that it appears Davey’s illicit taping formed part of a plot by corrupt Queensland Police to set up their accusers. The police caught out by Davey had been involved in efforts to close down a network of organised crime figures and corrupt police, centring on the infamous ‘bag man’ Jack Herbert. It was Herbert who purchased the tape recorder while in the United States and set in train the scheme designed to turn the tables on his accusers. Those caught out in fabricating evidence by Davey’s tape were, by the standards of the time, the ‘honest cops’! See Lucas Committee (1977: 15-29) and Dickie (1988: 41-3). 129
fabrication of evidence by police officers - particularly of confessional evidence - does occur. The sad truth is that “verballing”, as it has become known, is a device that is not uncommonly employed by certain members of the police force… Planting evidence also seems to be a pervasive practice and one by no means peculiar to Queensland.528
The Inquiry concluded that ‘there must be more effective control over police activity than there has been up to the present moment’.529
The ALRC Criminal Investigation inquiry differed from those of Beach and Lucas, in that it did not specifically arise out of alleged police misconduct, and was not directed to investigate any such allegations. Nonetheless, fear of police abuse of power did play a major part in the decision to give the ALRC the Criminal Investigation reference. The Whitlam Labor Government proposed to amalgamate a number of Federal and Territory law enforcement agencies into a single ‘Australia Police’. This proposal provoked strong criticism from those who felt that the creation of a such a large national agency would be a step towards a police state. As Federal Attorney-General Kep Enderby put it:
if one takes three or four small police forces and makes them into a bigger police force… many citizens will be a little concerned about their dealings with the police… When I became Attorney-General I saw the great opportunity to build into this new structure some safeguards for the citizen in his or her relationships with police… the first reference to the ALRC… was the need to protect civil liberties.530
528 Lucas Committee (1977: 15, 31). 529 Lucas Committee (1977: 48). 530 House of Representatives Debates v 95 (30 September 1975). On the nexus between fears of the impact of the Australia Police on civil liberties and the issuing of the criminal investigation
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In turn, while the ALRC made no revelations of the kind uncovered by Beach and Lucas, it did report that ‘members of the various Australian police forces… have tended to take a somewhat relaxed view of the ambit of their powers’.531 For example, it found that suspects were sometimes detained prior to charge for up to 3 days.532 The existence of a significant gap between law and practice, and the need to close that gap by legislative reform, also received prominent attention in the reports of the Victorian Chief Justice’s Law Reform Committee,533 the Mitchell Committee,534 and the English Royal Commission on Criminal Procedure.535
However, unlawful practices alone did not explain the detailed law reform recommendations that emerged. The interpretation placed on these unlawful practices was just as important.
It needs to be acknowledged at the outset that there were many people who remained committed to simplistic understandings of police misconduct. The simplest approach of all was to disregard the prospect of misconduct, and simply place trust in the policing organisation. Thus, in the debate on the Listening Devices Bill 1969, one speaker for the Government rejected out of hand suggestions that listening device powers should be more closely regulated:
That is to begin, as it were, from a foundation of distrust, and in my view that is antithetical to the community attitudes that we need for the upholding of our police force…
In so far as these devices represent a new type of potent weaponry which can be used with significant public safeguards… I believe it to reference to the ALRC, see also House of Representatives Debates v 94 at 2016 (Mr Enderby, Attorney-General, 23 April 1974), Evans (1975: 8). 531 ALRC (1975a: 3-4). 532 ALRC (1975a: 39). For other ALRC proposals put forward as measures to curtail existing police practices, see ALRC (1975a: 28, 71, 96-7). 533 CJLRC (1972: 2, 4). 534 Mitchell Committee (1974: 91, 105, 134-35).
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be imperative that we show trust and faith in our police force to use them responsibly and with discretion, as the whole British tradition indicates they would be used.536
In similar vein, Justice McClemens argued that ‘we must assume… an efficient police force of integrity - without such a force social defence becomes impossible; to impose limitations in investigations on such a police force is foolish’.537 The corollary of this trusting perspective was that police powers should not be fettered. McClemens, for example, felt that a suspect should have no right to consult a lawyer prior to charge.538 Furthermore, defence lawyers who suggested police had lied or fabricated evidence often met extreme hostility from the NSW judiciary.539
Where police failings were admitted, the ‘rotten apple’ paradigm continued to have many adherents. In arguing that listening devices should require judicial authorisation, Opposition leader Pat Hills explained that ‘you will always find bad apples in the barrel… we are not condemning the whole of the police force’.540 The Beach Inquiry was initially put forward as a vehicle by which the Victorian Government could take ‘rigorous action’ to eliminate ‘unsatisfactory elements’ from the Police Force.541 The NSW Law Society included the following comment in its submission to the ALRC Criminal Investigation inquiry:
regardless of any actual wording set out in Legislation the key factor to the success or otherwise of a Police organisation will be the integrity of its members. Accordingly, the recommendations we have made, if put into effect, would lose a great deal of their significance unless men of integrity and honesty applied the spirit of the Legislation.542
535 RCCP (1981: 34-5, 52, 58). 536 LA v 3/81 at 857 (Mr Cameron, 11 September 1969). 537 Institute of Criminology (1973b: 123). 538 Institute of Criminology (1973b: 124). 539 Frank Walker Interview, 18 June 1997; David Brown Interview, 11 May 1997; Dixon (1997: 194). 540 LA v 3/81 at 832 (10 September 1969). 541 Age (1975: 13 March). 542 Law Society (1975: 2). 132
Although the rotten apple paradigm was to remain a powerful element of public, media and political discourse on policing in future decades,543 alternative and more sophisticated accounts first received sustained attention in some of these mid- 1970s inquiries. These inquiries offered two principal explanations for the divergence between criminal investigation law and practice. The first was that police ignored legal rules because of pressure to achieve better ‘results’ in the fight against crime.
‘Results pressure’ was one of the explanations for police misconduct explicitly advanced by the Lucas Inquiry, which was the only inquiry to attempt to explicitly tie its recommendations into a theory about police misconduct.544 Pressure to achieve ‘results’ may have been a particularly strong feature of policing in Queensland. There were suggestions that the Queensland Police Force had placed a heavy emphasis on the number of charges and convictions secured by officers in evaluating performance.545
The ALRC also adverted to ‘results pressure’ in suggesting that there was a point beyond which police could not be more strictly regulated without pushing them into subterfuge to maintain their crime fighting efforts.546 Interestingly, neither of these reports made any reference to the academic research that had been undertaken, particularly by Jerome Skolnick in the United States, pointing to the importance of pressure to secure arrests and convictions as a determinant of police conduct and misconduct.547
A second explanation for the law/ practice gap centred on the culture of police. Police culture formed part of the Lucas Inquiry’s efforts to devise a meaningful explanation for police conduct. It pointed to United States studies on the nature
543 Hogg (1987: 136), Wood (1997: 26-28). 544 Lucas Committee (1977: 34-39). 545 See Queensland Police Union (1977: 19), Queensland Council for Civil Liberties (1977: 7). 546 ALRC (1975a: 141). 547 Skolnick (1966: ch 8). 133
and significance of the ‘brotherhood syndrome’ and suggested that this led police to focus on the ultimate goal of crime fighting, and on internal loyalty, at the expense of concern about more diffuse due process oriented objectives.548
Both the ALRC and Lucas Inquiry highlighted a specific cultural factor influencing police conduct, namely that where police were forced to circumvent the law to undertake necessary tasks, they were likely to become cynical about the law in general and (by implication) ignore more reasonable legal restraints.549 This argument had already been put forward earlier in the decade by outspoken London Metropolitan Police Commissioner Sir Robert Mark.550 Another proponent of this view was NSW District Court Judge Loveday, who attacked the right to silence on the basis that:
A dedicated police officer who is frustrated by having his investigations brought to a halt as a result of the suspect’s insistence on the right [to silence] is likely to do one of two things. Either he will lose interest and cease to be a dedicated police officer (apathy)… or he may commit a small breach of what he considers a stupid illogical rule (aggression). The initial breach however has to be compounded by lies to avoid the discovery of the breach… Small breaches degenerate into massive breaches and ultimately into complete disregard for the rules…551
A number of inquiries concluded that the law/ practice gap partly reflected the inadequacy of existing police powers, and recommended conferring significant new powers on police to assist crime fighting. Reducing police cynicism towards legal restraints was an added benefit. This philosophy was most extensively developed in the report of the Lucas Inquiry, which argued that police had ‘been forced to break the law time and time again in order to achieve what reasonable
548 Lucas Committee (1977: 33-34). 549 ALRC (1975a: 3), Lucas Committee (1977: 34-35, 244). 550 Mark (1974: 107).
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members of the community would regard as perfectly legitimate goals’.552 Among the powers proposed to rectify this situation were powers to set up roadblocks; detain a suspect for questioning; and to stop, question and search persons found in public places in suspicious circumstances.553
In relation to the power to detain a suspect for questioning, the Lucas Inquiry concluded that ‘the law should be brought into line with general police practice which, we believe, merely reflects what has been found to be necessary in many investigations in the community’s interest’.554 The Mitchell Committee555 and the ALRC both reached similar conclusions, with the ALRC arguing that the existing prohibition on detention for questioning ‘manifestly does not take into account the legitimate needs of police in their investigation of crime’.556
The conferral of additional powers was not the only possible response to the gulf between law and practice. Both the ALRC and Royal Commission on Criminal Procedure emphasised the merits of combining additional powers with greater regulation. The ALRC Chairman explained, on the issue of the questioning of suspects, that the ‘majority of the Commission preferred to recognise the reality of police practice and to seek to afford positive safeguards against its abuse’.557 The English Royal Commission report argued that conferring explicit powers on police would provide an opportunity to ‘specify precisely the circumstances in which they should be available and the safeguards to which they should be subject’.558
Conferring extra powers on police was in many ways the easier side of the equation. Where existing police practices were ‘unacceptable’, devising a means
551 Institute of Criminology (1973a: 34). The brackets are in the original. 552 Lucas Committee (1977: 111). This view had been put forcefully to the Committee by Queensland MLA and former police officer Don Lane who identified legal inhibitions, overworked police, lack of alternative means of obtaining evidence and lack of access to science and technology as major reasons for ‘verballing’: Lane (1977: 43-44). 553 Lucas Committee (1977: 111-12, 132-37, 153-55, 161, 170-74). 554 Lucas Committee (1977: 139-40). 555 Mitchell Committee (1974: 74). 556 ALRC (1975a: 3). 557 ALRC (1975a: xiv). 558 RCCP (1981: 192). 135
for reforming those practices was a challenging task. If legal restraints had been flouted in the past, how would new legal restraints make any difference?
In some cases, practices were found to be lawful but unacceptable, so that it ‘made sense’ to propose a new law to prohibit the undesirable practice. Beach, for example, in explaining his recommendation in favour of legislation to require that a suspect be cautioned, notified of his or her right to communicate with a friend and a lawyer, and given an opportunity to exercise those rights, concluded:
there are so many deliberate breaches by Police of their own Standing Orders, breaches which are not regarded seriously by Police, nor sought to be enforced by disciplinary action… that it is now necessary to preserve and enforce the rights which the Police are unwilling or unable to do as a matter of Police practice, by legislation.559
Similarly, some proposals were premised on the basis that removing ambiguities in the existing law would reduce undesirable police practices. This was a particular theme of Justice Kirby,560 and of the Royal Commission on Criminal Procedure, which argued that ‘leaving powers unspecified and unregulated gives… less protection to the public and much greater scope for abuse’.561
Where existing police practices were considered to be both illegal and undesirable, reformers had a real problem. If existing legal limitations were being ignored, how could police be regulated?562 A new angle of attack had to be found.
One approach was to bolster the effectiveness of disciplinary and complaints procedures, for example by providing for an independent/ non-police element
559 Beach (1978: 71). 560 See Kirby (1979: 632). 561 RCCP (1981: 192). 562 This remains a central reform dilemma, although one that reformers do not necessarily acknowledge: see Dixon (1997: 165). 136
within the complaints system.563 Another was to restrict the admissibility of evidence obtained in contravention of rules governing police, so that a subsequent trial would provide a forum for challenging police conduct. The prospect of exclusion of evidence would, it was hoped, reduce the incentive to obtaining evidence by improper means.
The Mitchell Committee, for example, considered that ‘police should be meticulous in their observance of the rules’ and that evidence illegally or improperly obtained in respect of a person should be strictly inadmissible against that person.564 The ALRC adopted a less absolutist stance, recommending a ‘reverse onus’ exclusionary rule. Unlawfully or improperly obtained evidence was not to be admitted, unless the prosecution could satisfy the court that admission was appropriate. The evidence could be allowed in where, for example, the unlawfulness was of a trivial nature.565 Possible exclusionary rules were canvassed by many of the other reports.566 Even the Norris Committee, which recommended against reform to most of the substantive laws governing criminal investigations, and which effectively buried the reformist recommendations of the Beach Inquiry, recommended a ‘reverse onus’ exclusionary rule.567
Another approach put forward for increasing compliance with the law of criminal investigation was the encouragement of greater openness in the investigatory process. The Royal Commission on Criminal Procedure identified ‘openness’ as one of the principal values that underpinned its recommendations:
Decisions, to the extent that it is possible, should be explained to the suspect. They should also be written down, together with a narrative of the events while a person is in custody. They can then be available
563 See Mitchell Committee (1974: ch 4), the Beach (1978: 104-10) and the Lucas Committee (1977: 49-51). See also the separate but closely related reports on complaints against police issued by the ALRC (1975a) and Norris Committee (1978b). 564 Mitchell Committee (1974: 107-14). 565 ALRC (1975a: 136-42). 566 See CJLRC (1972: 10-11), ALRC (1975a: ch 11), Beach (1978: 66, 68, 78, 93, 98), Lucas Committee (1977: 250), and RCCP (1981: 112-17).
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for the record, for inspection and, if need be, challenge… This should also make possible general oversight of the process by the police authority, by central government through its inspectorate, and ultimately by Parliament.568
Openness was frequently identified as an objective requiring greater attention in criminal justice. One example was the proposal to require police to explain a suspect’s rights to the suspect. This was not a completely novel idea. Back in 1964, the Australian Law Journal had observed that a ‘system which depends… upon the ignorance of one’s rights can hardly be regarded as satisfactory’.569 The Council for Civil Liberties’ widely circulated booklet ‘If You are Arrested’ was largely directed to overcoming this ignorance.570 Within the Herron Committee, there had been an intense debate on the merits of requiring police to explain suspects’ rights. Some members favoured imposing such requirements.571 Others, like Professor Shatwell, felt that it was ‘not the job of the police’ to educate the suspect, and that ‘educated’ suspects would hamper police investigations.572
A number of the mid-1970s inquiries came down firmly on the side of requiring police to clearly explain a suspect’s rights. The Victorian Chief Justice’s Law Reform Committee concluded that ‘at all stages of police action with respect to a suspect both the police and the suspect should be aware of their respective rights’. It proposed that police be required to explain to the suspect the nature of any powers they proposed to exercise.573 The Mitchell Committee recommended that it be mandatory for a senior police officer to ask a suspect whether he or she wanted legal representation, prior to the questioning of the suspect. This was
567 Norris Committee (1978: ch 2). 568 RCCP (1981: 20). The other principal values were fairness and workability. 569 ALJ (1964a: 307). 570 See SMH (1968: 16 April at 6). 571 ‘Third Meeting of Sub-committee, 5 May 1966’ p 16; ‘Fourth Session of the Full Committee, 4 May 1967’, pp 12-14 (NSW Archives Box 6/4505). 572 ‘Third Meeting of Sub-committee, 5 May 1966’ pp 15-17; ‘Fourth Meeting of Sub-committee, 8 June 1966’ p 15; ‘Fourth Session of the Full Committee, 4 May 1967’, pp 11-14 (NSW Archives Box 6/4505). 138
intended to remove doubt as to whether the suspect had wanted legal representation.574
The ALRC was particularly firm on the question of explaining rights. It expressed the view that it ‘should not be necessary to argue that if a person has rights he should be made aware of them… the proposed legislation should be absolutely explicit in its requirement that persons in custody be notified of their rights before any questioning’.575 Two of the key rights to be explained were the right to a lawyer, and to the attendance of a friend or relative.576 Most of the other inquiries made proposals along these lines.577
A further mechanism to enforce the substantive law of criminal investigation through greater openness was to require police to record or report certain information. This approach had already been used in the NSW Listening Devices Act 1969, under which the Police Commissioner was required to report to the Minister on the authorisation and use of listening devices.
The classic recording requirement, favoured by a number of the inquiries, was the taping of confessions made during police questioning.578 As the ALRC put it, ‘any procedure which will bring in evidence other than the oral evidence of the police or the accused should be encouraged’.579 The Lucas Inquiry viewed the keeping of records as a valuable compliance tool in other contexts. It recommended that registers be kept of searches and forensic procedures undertaken by police.580
573 CJLRC (1972: 4). 574 Mitchell Committee (1974: 97). 575 ALRC (1975a: 44). 576 ALRC (1975a: 45-49). 577 For further proposals along these lines see Mitchell Committee (1974: 195), ALRC (1975a: 147, 149), Beach (1978: 67-8, 71-2, 112), Lucas Committee (1977: 129, 143), Norris Committee (1978: 165) and Devlin Committee (1976: 123). 578 See, for example, Mitchell Committee (1974: 92-95), ALRC (1975a: 71), Beach (1978: 82-93) and Lucas Committee (1977: 52-68). 579 ALRC (1975a: 71). 580 Lucas Committee (1977: 118, 172). 139
A third approach to achieving compliance through openness was to recommend that police internal guidelines be made public. The fact that NSW Police internal guidelines were not public had been a constant source of complaint on the part of the NSW Council for Civil Liberties.581 Equivalent guidelines were also secret in other states, something civil libertarians and others criticised.582
The NSW police guidelines had come into prominence in early 1974 when it was alleged that inappropriate guidelines on the use of firearms had led to the fatal shooting of a Goulburn youth. In response, Justice Minister Maddison argued that the guidelines should be made public.583 Maddison failed to secure the general publication of the guidelines, but the sections setting out firearms procedures were placed in the public domain.584
The Beach and Lucas Inquiries and the Norris Committee all recommended that police guidelines in Victoria and Queensland respectively should be made public.585 The Norris Committee, for example, had suggested that a booklet be made available to the public ‘in a form that can be readily understood by them’.586
The codification of criminal investigation rules in legislation was itself identified as an important contribution to openness in the criminal investigation process. In announcing the terms of reference for the ALRC Criminal Investigation inquiry, Federal Attorney-General Kep Enderby announced that a key objective was to
581 See, for example, Civil Liberty (1964: 2 at 4), SH (1975: 25 May at 22). 582 Carney and Epstein (1980: 284), Victorian Legislative Assembly Debates v 306 (Mr Lovegrove, 14 March 1972). I was surprised to discover in June 2000 that such guidelines were still not public in at least one jurisdiction, namely the Northern Territory. The retitled ‘Commissioner’s Instructions’ had been made public in NSW in 1991. Some of these were included, in revised form in the 1998 Code of Practice for Custody, Rights, Investigation, Management and Evidence (‘CRIME’). Some others were reissued in the NSW Police Handbook. 583 Howe (1974), SMH (1974: 26 February at 1), LA v 3/108 at 706 (26 February 1974). This was a course Premier Askin had previously rejected: LA v 3/99 at 764 (Premier Askin, 6 September 1972). 584 Maddison (1974a). 585 See Beach (1978: 113), Lucas Committee (1977: 131-2) and Norris Committee (1978: 169- 70). Such a proposals was put the ALRC (Council for Civil Liberties 1975a: 2; Rutherford 1975: 14) but not taken up. 586 Norris Committee (1978: 170). 140
‘spell out’ the public’s rights in dealing with police.587 Justice Kirby was later to declare that the ‘beginning to proper community legal education is the public declaration of major rights and duties in a single statute available to all’.588 He also suggested that the ‘first and most important’ function of the Criminal Investigation Bill 1981, drawn up to implement the ALRC’s recommendations was ‘to get into an Act of the Australian Parliament what is presently found in Police Commissioner’s Instructions, decisions of English judges and Australian judges and other material that is not generally available to citizens’.589
The emphasis that most of the inquiries placed on greater openness in the investigatory process was part of a broader move to more open government at this time. In NSW, the enactment of the Ombudsman Act 1974 was the most obvious manifestation. Federally, a whole raft of open government legislation was enacted, including the Ombudsman Act 1976, the Administrative Appeals Tribunal Act 1976, the Administrative Decisions (Judicial Review) Act 1977 and the Freedom of Information Act 1981.
Justice Kirby explicitly drew a link between these developments in administrative law and the ALRC’s proposals for criminal investigation law reform, perhaps hoping to draw strength from the greater success of reform efforts in the administrative law field:
It seems scarcely likely that the moves which open up previously secret and unreviewable government decisions will stop short at the criminal investigation process and the conduct of police and prosecutors. The debate about new controls over criminal investigation must be seen in the context of new laws designed to
587 Australian (1975: 23 May at 3). 588 Kirby (1979: 646). See also the forward by Justice Kirby to Flick (1981: ix). 589 Commonwealth Archives File C1392/2 141 ‘Australian Broadcasting Commission - The Law Report - Interview by Michael Cosby of Mr. Justice Michael Kirby - Criminal Investigation Bill 1981’ p 1. The principal author of the Criminal Investigation report, Gareth Evans, expressed a similar view: see Evans (1984: 3). 141
protect the individual against the growing authority of the state.590
Federal Attorney-General Bob Ellicott also sought to attach criminal investigation reform to the coat tails of the Commonwealth’s administrative law reforms, in describing the Criminal Investigation Bill 1977 as an integral part of the Government’s administrative law reform package.591
Another significant area of governmental concern in the 1970s was protection of the rights and interests of particularly disadvantaged sections of the community. In the late 1960s, the inequalities suffered by groups such as Aboriginal people, migrants and juveniles had begun to receive attention both generally,592 and in the criminal justice context.593 In 1964, a pioneering article entitled ‘Aborigines, Alcohol and Assimilation’ had surveyed the terrible circumstances of Aboriginal people living in western NSW. The article described the ‘continued cycle of defiance, arrest and renewed defiance’ arising out of the enforcement of alcohol prohibition and drunkenness laws by police.594 In 1965, the Reverend Ted Noffs, a Sydney Methodist minister, had called for the presence of an independent witness during the interrogation of Aboriginal people and teenagers.595 In 1970, the NSW Council for Civil Liberties had written to the Commissioner of Police, to complain that police were regularly questioning juveniles without attempting to secure the attendance of a parent or guardian.596
A number of the mid-1970s inquiries, in both Australia and England, acknowledged the special disadvantages of particular groups. The Mitchell Committee noted the ‘considerable difficulty’ in relations between South Australian police and Aboriginal people; and the difficulties faced by persons who
590 Kirby (1979: 627). 591 House of Representatives Debates v 104 at 562 (24 March 1977). 592 Bolton (1996: ch 8), Baldock (1978: 132). 593 Lucas (1995). 594 Beckett (1964: 40). 595 SMH (1965: 11 June at 5). 596 Civil Liberty (1970: 27 at 3). 142
were not proficient in English when interrogated by police.597 The Committee went on to recommend that an interpreter be present if there was ‘any doubt’ about the suspect’s comprehension of English; and that a Community Welfare officer be present at the interrogation of an ‘uneducated aborigine’.598
The ALRC devoted a chapter of its report to the need for special treatment of ‘groups in the community who, because of their status, background or intelligence, may be at particular risk when made the subject of police investigation’. It identified Aboriginal people, non-English speakers and children as three groups with ‘particular needs in relation to the criminal justice system’ who were ‘entitled as a result to such special measures as can be devised to meet those needs’.599 Its specific proposals centred on requiring the notification and attendance of third parties (for example, an Aboriginal Legal Service, a parent, or an interpreter, as the case required).600
The ALRC received many submissions from groups representing disadvantaged and marginalised sections of the community, including three Aboriginal Legal Aid associations (Queensland, Northern Territory and Central Australia) and two homosexual groups (Chutzpah and Five).601 Many of these submissions complained about existing police practices. Chutzpah, a University of Sydney Jewish homosexual group, alleged that ‘time and time again… homosexuals arrested have been humiliated, terrorised, denied access to a telephone… and detained for long periods’.602
The Lucas Inquiry detailed numerous instances of the injustices suffered by Aboriginal people, juveniles and other disadvantaged groups,603 but steered away from proposing special provisions relating to these groups. In a similar vein, the
597 Mitchell Committee (1974: 40, 94-95). The Committee did not make it clear whether these should be statutory requirements. 598 Mitchell Committee (1974: 94-95). 599 ALRC (1975a: 117-18). 600 ALRC (1975a: ch 9). 601 ALRC (1975a: Appendix A). 602 Chutzpah (1975).
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English Royal Commission on Criminal Procedure acknowledged the troubled relations between police and youths, especially black youths,604 but concluded that criminal investigation laws ‘should be applied equitably to all people, without unjustifiable variation’.605
Disadvantaged groups featured prominently in the few pieces of legislation to emerge in the aftermath of the Australian inquiries. The Aboriginals and Islanders (Admissibility of Confessions) Bill 1976 is notable in this regard. It was introduced into Federal Parliament as a Private Member’s Bill by Senator Neville Bonner, himself an Aborigine. Senator Bonner described the introduction of the Bill as ‘a momentous occasion’ and likened his Bill to ‘the mythical phoenix, as it rises and triumphs from the ashes of oppression, discrimination and mistrust, which for far too long have been the lot of my people’.606
The Bill was modelled on the Anunga rules, a set of guidelines for the questioning of Aboriginal people and Torres Strait Islanders put forward by Justice Forster of the Northern Territory Supreme Court in 1976.607 The detailed guidelines laid down in that case were a notable departure from the usual minimalist approach of the common law. Justice Forster rejected records of interview with two Aboriginal defendants and in so doing detailed procedures that should be followed in future cases. These included provision of an interpreter, attendance of a ‘prisoner’s friend’ to support the suspect, a requirement that police attempt to secure legal assistance for the suspect and that questioning be suspended for meal breaks. Justice Forster warned that departure from the guidelines would ‘probably’ lead to the exclusion of any confessional evidence.608
Senator Bonner’s Bill would have required that the interrogation of an Aboriginal take place in the presence of a representative of a legal aid organisation, and be
603 Lucas Committee (1977: 76-85, 103-4). 604 RCCP (1981: 26, 28, 50, 191). 605 RCCP (1981: 20). 606 Senate Debates v 69 at 695 (15 September 1976). 607 R v Anunga (1976) 11 ALR 412.
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tape recorded where practicable. The Bill would have applied to the questioning of Aboriginal people and Torres Strait Islanders by police in any Australian police force (including State police). A confession obtained in circumstances where these requirements had been contravened was to be inadmissible. The Bill did not attract the support of any major party in the Federal Parliament,609 and was heavily criticised by the Lucas Inquiry.610 Despite being introduced into Parliament three times by Senator Bonner, it was not enacted.611
The only NSW reform to be enacted during this period also concerned a disadvantaged group. The Child Welfare (Amendment) Act 1977 required the notification and attendance of a parent or guardian as a prerequisite to the interrogation of a juvenile at a police station. This was broadly in line with the recommendations of the Muir and Phibbs inquiries.
The special concerns of women were less prominent, though by late 1976 NSW police were exploring the need for legislation to ensure that the search of a female in custody could be undertaken by another female. Problems were encountered when the only female available to conduct the search was not a police officer.612 In a 1977 article, lawyer Jocelyn Scutt criticised as inadequate the attention given to the concerns of women in criminal investigation law, citing the concerns of female victims of sexual offences about unfair treatment at the hands of police.613
Influences 6: Ideas of Reform, Modernisation and Privacy
In earlier sections of this chapter, we have already examined some key ideas that helped shaped debate in this period, including the idea that crime was rising, and
608 (1976) 11 ALR 412 at 413. 609 Rees (1982a: 56). 610 Lucas Committee (1977: 93-98). 611 See Senate Debates v 69 at 695 (15 September 1976), v 79 at 1658 (26 October 1978) and v 88 at 368 (5 March 1981). 612 See NSW Police News (1978: January at 29). 613 Scutt (1979). 145
the idea that unlawful police conduct was the result of structural and cultural factors. This section examines three further ideas that were central to the growing interest in criminal investigation law and its amendment: reformism, modernisation and privacy.
It is important to recognise that these were reformist times. Back in 1957, Professor Shatwell of the University of Sydney Law School had spoken of the ‘golden age of law reform’ in the past tense, in reference to the nineteenth century. He contrasted this with the low key, ad hoc, approach to law reform in the twentieth century.614
A sign of changing times came in 1965, when the Liberal Party promised to establish a full time Law Reform Commission if elected to Government.615 In 1967, the Askin Government brought forth the Law Reform Commission Bill, noting the unprecedented public interest in law in recent times.616 The establishment of the NSW Law Reform Commission in 1968 and the ALRC in 1973 was part of the ‘explosion’ in the number of such agencies that followed the establishment of the Law Commission by the British Government in 1965.617
In its early years, the NSW Law Reform Commission, was elevated in some quarters to be the very essence of a proper policy development forum. In the debate on the Listening Devices Bill 1969, the Labor Party criticised the Government for not having allowed the Law Reform Commission to consider the Bill, and moved unsuccessfully to suspend debate on the Bill for 6 months to allow for a review by the Commission.618 The Labor Party subsequently criticised the establishment of the Amsberg Committee, on the basis that the Government had thereby ‘bypassed’ the Law Reform Commission.619 Around the same time,
614 Shatwell (1957: 326). 615 Civil Liberty (1965: 5 at 2). 616 LA v 68 at 935 (Attorney-General, Mr McCaw, 30 August 1968). 617 ALRC (1975c: 18). 618 See LA v 3/81 at 859, 862 (Mr Mannix, 11 September 1969) and 868-69 (amendment defeated), LC v 3/83 at 2664 (Hon C Cahill, 18 November 1969). 619 LC v 3/94 at 1815 (Hon N Wran, 13 October 1971). 146
the Australian Law Journal criticised the English Court of Appeal for having relaxed the common law governing search, in the case of Ghani v Jones. Such an important reform, the Journal suggested, should have been a matter for a Law Reform Commission to consider.620
Law reform came into its own under the two particularly reformist governments of the 1970s, namely the Labor administrations of Don Dunstan in South Australia and Gough Whitlam federally. It is not surprising that these governments launched the two earliest, most ambitious, and most academically oriented inquiries into criminal investigation law undertaken in Australia - those of the Mitchell Committee and the ALRC respectively. In each case, ‘modernism’ was a central rallying cry. The Mitchell Committee was established with the aim of bringing ‘the criminal law and procedures into line with modern social conditions and modern knowledge’.621 The Criminal Investigation report emerged out of the first reference given to the ALRC, which had been brought into existence by the Whitlam Government.622
It might be thought that the inquiries of the mid-1970s would have needed to take stock of significant developments in the science and technology of Australian policing. There had been plenty of scope for such developments. Finnane’s history of Australian policing lists a number of important technological innovations in twentieth century policing, including fingerprinting, radios, telephones, computers, and forensic testing.623 During the 1950s, the NSW Police News had foreshadowed many exciting technical developments including the use of closed circuit television surveillance,624 forensic chemistry,625 and more sophisticated fingerprinting techniques.626
620 ALJ (1970). 621 Advertiser (1971: 15 December at 3). 622 ALRC (1975a: ix, xiii). 623 Finnane (1994: 79). 624 NSW Police News (1950: February at 31). 625 NSW Police News (1951: November at 20). 626 NSW Police News (1954: May at 24). 147
The finest hour for the use of science in policing in NSW had come in 1960, when NSW police found the person responsible for kidnapping and murdering a young Sydney boy, Graham Thorne. Through forensic analysis and detective activity, police were able to narrow their search to ‘premises possessing certain features - brickwork in red coloured lime mortar, with a substantial space between the floor and ground levels… a pekinese dog, at least two human beings with different coloured hair and the presence in close proximity of two shrubs of different species’. Working with this detailed description, police found the premises and the culprits.627
The NSW Police Department deservedly boasted that this investigation had:
received very wide acclaim locally and has much enhanced the prestige of the Force in the eyes of the people of this State. The case has been reported on a world wide basis and in the history of criminal investigation it will undoubtedly go down as a classic example of the manner in which scientific assistance can and should be used as a practical aid to the work of detectives…628
Unfortunately, this was far from typical of Australian policing. In fact, governments and senior police had manifestly failed to position police to take advantage of technical innovation. In 1962, a member of the NSW Legislative Assembly had visited Manly Police Station and had found equipment that ‘would make a modern business executive quail’. Not only were there no facilities for taping records of interviews, but the typewriter available for this purpose appeared to have come ‘out of the original Remington museum’.629
627 Police Department (1961: 10-11). 628 Police Department (1961: 11). 629 LA v 3/42 at 1149 (Mr Darby, 23 October 1962). 148
A number of the mid-1970s inquiries were to report that policing had failed to come to grips with modern times, a criticism also made of English police.630 The Mitchell Committee discovered that among the staff of the South Australian Police Forensic Science Laboratory ‘none has had university training, nor have they had direction from trained scientists’.631 The Committee expressed concern that courts had placed great faith in the evidence of ‘expert’ police scientific witnesses, of doubtful expertise.
The Lucas Inquiry found that although white collar crime was at ‘epidemic proportions’ there was ‘not one qualified accountant in the entire Police Department… it was only in January of this year that the Department received its first qualified lawyer’.632 The Lucas Inquiry also found that the legal framework governing police was also outdated:
Samples of hair, and blood, for example, are often required in an investigation. Save in the case of an intoxicated driver… no power exists in the law to enable the taking of such specimens. Indeed our Criminal Code… ante-dates the discovery of the existence of various blood groups.633
The ALRC identified ‘modernisation’ as a key objective of its report: the ‘thrust of the Commission’s proposals is towards recognising, controlling and using… modern technology: tape recorders, telephones, telex, computers and copiers’.634 Like the Lucas Inquiry, it highlighted the inadequacy of legal rules ‘formed before modern police forces were born, and certainly before modern crimes were enacted and modern criminals appeared’.635 On the release of the report, Justice Kirby described it, ironically, as a ‘leap into the 20th century’.636 He later warned that the
630 Bottoms and Stevenson (1992: 30). 631 Mitchell Committee (1974: 151-53). 632 Lucas Committee (1977: 200-1). 633 Lucas Committee (1977: 12). 634 ALRC (1975a: xv). See also Kirby (1976: 464). 635 ALRC (1975a: 140). 636 SMH (1975: 5 November at 1). 149
preservation of ‘antique procedures in such an important area’ would ‘bring the law into disrepute and contempt’.637
On the other side of the world, the Royal Commission on Criminal Procedure was also strongly guided by the idea of modernisation:
the powers and procedures available for investigating offences need to be brought up-to-date. Our society has changed dramatically in the last century and a half; we need powers and procedures suited to the circumstances of the present day and the foreseeable future.638
One of the ALRC’s key modernising recommendations was that police should have electronic surveillance powers, ‘essential if law enforcement is to be effective against the increasing sophistication and complexity of crime today’.639
A number of reports concluded that police actually needed to be forced to adopt more modern and effective methods under legislative compulsion, most notably the tape recording of confessions. The Beach Inquiry,640 the ALRC641 and the Lucas Inquiry642 all took this view. Along the same lines, one supporter of tighter regulation of the interrogation of juveniles in NSW argued that if crimes were being solved by confessions rather than by ‘clever investigative and scientific activity by our police’, then restricting interrogations ‘would, hopefully, increase the efficiency of the police force’.643
Despite the modest use of science and technology by police, fear about the abuse of technology made a significant impact on the reform debate. Concerns about threats to privacy were particularly intense. Writing in the early 1970s, Campbell
637 NMH (1977: 16 May at 14). 638 RCCP (1981: 14). 639 ALRC (1975a: 104). 640 Beach (1978: 91). 641 ALRC (1975a: 71-72). 642 Lucas Committee (1977: 31, 60). 643 Mr T Kelly, letter to the editor, in SMH (1977: 2 July at 2). 150
and Whitmore had identified the relationship between technology and privacy as a key issue for the future of criminal investigation law in Australia.644 In America, the idea of a right to privacy had spread with ‘astonishing speed’ in the early 1960s, with privacy issues inserting themselves into the consciousness of the middle class.645
Within NSW, electronic surveillance and recording powers generated particularly strong privacy concerns. In 1967, the Sydney Morning Herald argued that it would be dangerous to sanction telephone tapping ‘without re-examining the whole question of legal rights to personal privacy’.646 Such concerns were also expressed in relation to the Listening Devices Bill 1969. The Daily Telegraph, for example, editorialised against ‘licenced eavesdroppers’ and warned that privacy was a ‘fundamental democratic right’ that should not be invaded for criminal investigation purposes.647 The Telegraph later called for an outright ban on such devices, to ‘keep what little privacy modern life still allows’.648 Nonetheless, the Bill went ahead.
In the Parliamentary debate on the Listening Devices Bill 1969, the Opposition argued that police should not be permitted to use a listening device to record a communication between a ‘solicitor and client, member of parliament and constituent, minister of religion and parishioner’.649 The Government subsequently agreed to consider instructing the Police Force to consult the Attorney-General to prevent the inappropriate use of a listening device in these circumstances.650
In 1973, a report on the ‘Reform of the Law Concerning Privacy’ was commissioned by the NSW Government, another sign of the increasing
644 Campbell and Whitmore (1973: 71-72). 645 Walker (1990: 300-1). 646 SMH (1967: 22 June at 2). 647 DT (1968: 28 August at 2). 648 DT (1968: 29 September at 52). 649 LA v 3/81 at 859 (Mr Mannix, 11 September 1969) and LC v 3/83 at 2667 (Hon C Cahill, 18 November 1969).
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importance of privacy issues in public debate. The report did not contain any specific recommendations concerning criminal investigation law, but did foreshadow that assessing the appropriateness of electronic surveillance laws would be a ‘continuing task’ for any NSW privacy body.651
The other major ‘privacy’ issue in criminal investigation during the late 1960s and early 1970s concerned destruction of fingerprints and photographs. In the absence of legislation governing retention of fingerprint and photographic records, the decision whether and when to destroy such records was within the discretion of police. The police practice was to destroy prints only on application. In 1965, leading NSW civil libertarian Ken Buckley drew attention to the destruction issue, by successfully applying for the destruction of his prints after he had been acquitted on offensive behaviour charges.652
A decade later, the NSW Council for Civil Liberties wrote to the NSW Justice Minister calling for mandatory destruction of fingerprints and photographic records where a person was not proceeded against or was acquitted. The Justice Minister rejected the proposal. He argued that destruction was unnecessary in light of police willingness to destroy on application; and undesirable because mandatory destruction would create ‘considerable’ administrative problems.653 The Council later reiterated its mandatory destruction proposal in its submission to the ALRC.654
Mandatory destruction of fingerprints and photographs of a person who was acquitted or was not prosecuted was ultimately recommended by a number of inquiries. The first was the Victorian Chief Justice’s Law Reform Committee, which noted that this was already required under Queensland law.655 It was
650 LC v 3/83 at 2676 (Hon J Fuller, 18 November 1969). 651 Morrison (1973: 70). 652 Civil Liberty (1965: 6 at 8-9). 653 Civil Liberty (1975: 62 at 2). 654 Civil Liberty (1975: 62 at 5). 655 CJLRC (1972: 10). 152
followed by the Mitchell Committee,656 the ALRC,657 the Beach Inquiry,658 and even the Norris Committee.659 The ALRC summarised the principle at issue as being ‘the privacy claim that individuals should have control, so far as is possible, over the information which is stored and disseminated about them’.660
Conclusion: Freedom and Fears
Many of the factors that generated debate about the law of criminal investigation in Australia in late 1960s and the 1970s can be seen as a result of the ‘freeing up’ of social relations in Australia, like other western societies, in that period. Socially progressive (or permissive, depending on your perspective) causes gained much greater influence at this time. Much of the socially progressive constituency centred on the universities, from which students came forth with new ideas, and joined politics, the legal profession and academia itself. They challenged assumptions about law and policing that had previously diverted attention from the adequacy of criminal investigation laws, including faith in police, faith in courts, and the desirability of stability.
Councils for Civil Liberties offered a new forum for challenging policing practices. Marginalised groups whose interests now gained greater attention, including Aboriginal people and juveniles, were the subject of a large proportion of policing activity. Discussion of the concerns of these groups naturally raised questions about policing practice.
When the law reform inquiries were established, a series of prevailing ideas helped to inform their analysis. Science and technology were favoured, as were
656 Mitchell Committee (1974: 136, ch 9). 657 ALRC (1975a: 51). 658 Beach (1978: 100). 659 Norris Committee (1978: 136-38). 660 ALRC (1975a: 51). 153
reformism, openness and a more sophisticated, theoretically informed, understanding of police misconduct.
Yet at the same time crime was rising, and confidence in the adequacy of ‘same as usual’ policing strategies was declining. There was increasing awareness that the minimalist common law model of police powers offered insufficient support to contemporary policing. Fear of crime was not the only fear of the age. Whitlamite big government and the growing power of technology led to fears of the ‘police state’. In particular, the merit of privacy protection was receiving increasing attention, and would prove to be a matter of greater middle class interest than other more traditional rights.
As noted at the outset of this chapter, ‘actors’, ‘circumstances’ and ‘ideas’ were all central to the emergence of debate, and each were interdependent. Perceptions of rising crime (an idea) encouraged some judges (actors) to speak out about rising crime, and provided greater incentives (circumstances) for police representatives to debate police powers. Changing demographics (circumstances) provided a pool of lawyers, civil libertarians and politicians (actors) who were more prepared than their predecessors to challenge police conduct, and in line with prevailing notions of government, to promote legislative reform and the protection of privacy (ideas). Debate was generated (triggered) by individuals who favoured reform, but an array of structural changes set the scene for these triggering events: demographic changes, police/ student conflict, academic insight into the causes of misconduct, rising crime and rising concern about crime.
One notable feature of the period to 1975 was that although police had started coming into the debate, their voice was still muted. For thirty years, neither senior NSW police nor the NSW Police Association had played a major role in the public discussion about police powers of criminal investigation. Quite suddenly, that was about to change.
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4. THE REALITY OF RESISTANCE
This chapter examines the intense opposition to reform of criminal investigation law that emerged in the aftermath of the law reform reports considered in the previous chapter. It examines first, the forceful reaction of police against the ALRC and Beach reports, and the Aboriginals and Islanders (Admissibility of Confessions) Bill 1976. It then examines the debate in NSW surrounding the enactment of 1977 reforms to more closely regulate the questioning of juveniles by NSW police. Next, it explores the national debate surrounding the 1977 Bill introduced into Federal Parliament to implement the ALRC recommendations. The chapter then examines the changing dynamics of debate as senior police and police unions moved on to the front foot to actively promote proposals of their own in submissions to the Lucas and Norris inquiries. Finally, the continued stalemate on the question of reform through to the early 1980s, and the reasons for police resistance, are considered.
Three recurring themes are central to the analysis in each of the sections of this chapter: the emergence of a national debate; the changing role of police as they moved to centre stage; and the continuing influence of the reformist ideal in the face of strong resistance.
Early Warnings
The ALRC Criminal Investigation report was publicly released on 4 November 1975 at a press conference held by Justice Kirby. The report gained extensive coverage in the major Sydney newspapers.661 Both the Sydney Morning Herald662
661 See, for example, SMH (5 November at 1, 13), DT (1975: 5 November at 3), Australian (1975: 5 November at 13, 7 November at 8). 662 SMH (1975: 6 November at 6). 155
and the Australian663 ran editorials expressing strong support for the proposals. The Australian argued that implementation of the ‘constructive proposals’ put forward by the Commission ‘would lead to an improvement in public respect and support for police’.
When the terms of reference for the inquiry had been announced in May 1975, the Commonwealth Attorney-General had said he hoped the ALRC’s proposals ‘would provide a model for all state police forces’. State Ministers responsible for police had been invited to make submissions to the inquiry.664 Justice Kirby also hoped that the report would be ‘some help to the States’,665 a point he made at his press conference on the release of the report.666 The following day, the Sydney Morning Herald emphatically agreed that ‘the Kirby report should be used as a basis for long overdue reform in the States’.667
It was apparent from the outset that the ‘State’ implications of the report might lead State police agencies and unions to oppose the proposals. In its submission to the ALRC inquiry, the Police Association of Victoria had expressed considerable unease at the prospect that the Commission’s recommendations might be a model for State laws.668 Once the report had been handed down, the NSW Police Association began to feel the same unease. This was reflected in the Association’s 1975 salaries application to the NSW Public Service Board:
the report of the Commission does set new standards of conduct which, if adopted at the federal level, will inevitably affect the procedures currently followed in New South Wales. The immediate effect of the release of the report upon Police has been a resurgence of activity by groups wishing to see curbs on the limits of police power… the imposition of further restraints as suggested by the Commission
663 Australian (1975: 7 November at 8). 664 Australian (1975: 23 May at 3), NMH (1975: 23 May at 3). 665 Justice Michael Kirby interview, 2 June 1997. 666 SMH (1975: 5 November at 1). 667 SMH (1975: 6 November at 6). Italics in original.
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has left police vulnerable to greater harassment, particularly in Court… The wide publicity and comment which accompanied and followed publication of the report and the tendency to depict Police as being unscrupulous is a cause of concern…669
Discussion of the report was soon overtaken by the dramatic dismissal of the Whitlam Government the following week, which temporarily put the report on the backburner.670 The Liberal Party had said that it would not proceed with the Whitlam Government’s ‘Australia Police’, the proposed creation of which had been the main impetus for the Criminal Investigation inquiry.
In 1976, focus shifted to Victoria, where police launched a vigorous backlash against the recommendations of the Beach inquiry.671 During the inquiry, counsel jointly representing the Victorian Police Association and Victoria Police had vigorously opposed many of the reforms that Beach was ultimately to recommend. These included the requirement to notify a suspect that he or she was not obliged to accompany police to the station, and that there be an onus on police to tape record interrogations.672
The announcement that the Beach report had been handed to the Victorian Government, and that the report recommended criminal proceedings against a large number of police led to an angry meeting of over 4,000 of the State’s 6,400 police, organised by the Victorian Police Association. The meeting issued a series of demands to the Victorian Government, and voted to work to rule until these demands were met. One of these demands was that ‘any change in police procedure be the result of conference (sic) between the Government, the Police Department and the Police Association and not based on Mr Beach’s
668 ALRC (1975c: 1). 669 Police Association of NSW (1976: 12). 670 Ross (1982: 81). 671 These events are also recounted in Haldane (1995: 290-92) and Swanton (1983: 21-23). 672 Beach (1978: 64, 82, 151). 157
recommendations’.673 The Police Association underlined its clout by pointing out that its membership included the Chief Commissioner and all other senior officers; and indeed all but two Victorian police.674
Among the work to rule bans that the Police Association announced were that police would only question a suspect if two officers were present, and that interrogation guidelines would be strictly obeyed, including the requirement to caution a suspect.675 The Age newspaper noted the irony of police working to rule, in light of the flagrant rule breaching uncovered by Beach.676 The Age argued that work to rule ‘suggests that police normally expect to act as if they were immune to rules’. It also suggested that the demands arising out of the meeting were a ‘gross over-reaction, a collective assumption that police are beyond reproach… and an attempt to intimidate the elected and lawful Government of this State’.677 These events were later described as the point at which the Victorian Police Association ‘marked its emergence as a force to be reckoned with’,678 a development with clear implications for police unions in NSW and elsewhere.
Within a couple of days, the Victorian Government had yielded to police demands.679 To address concerns about the extensive legislative proposals put forward by Beach, it established the Norris Committee to review the reform recommendations in the Beach report. The Norris Committee consisted of a former Supreme Court judge, the Secretary to the Law Department, the Under Secretary of the Chief Minister’s Department and the Police Commissioner.680
Peter Sallmann, the Victorian lawyer and civil libertarian who had made submissions to the Beach inquiry, conceded that Beach’s reform proposals were
673 Age (1976: 19 October at 5). 674 Age (1976: 18 October at 1). 675 Age (1976: 19 October at 5; 15 October at 1). 676 Age (1976: 16 November at 15; 19 October at 9). 677 Age (1976: 19 October at 9). 678 Haldane (1995: 292). See also Sallmann (1982a: 257-59, 264) and Age (1989: 12 September at 18). 679 Age (1976: 21 October at 1). 680 Norris Committee (1978: ix). 158
‘brief, crude, cryptic and not fully argued’.681 Some kind of review was therefore understandable. Sallmann argued, however, that the Norris Committee was not devised as a genuine review. Rather, this was a conservative group, who it was anticipated would bury Beach’s more reformist recommendations.682 Victorian police officer and historian Robert Haldane shares this assessment.683
The Norris Committee was to favour many of the arguments of the Victorian Police Association that had not found favour with Beach. For the short term, the Beach recommendations had been effectively buried by the more conservative findings of the Norris Committee and by the vigorous police opposition to reform.684 The weight of the Beach recommendations was further undermined by the fact that none of the police against whom he made adverse findings was ultimately convicted of criminal offences.685
A second controversy of 1976 concerned Senator Bonner’s Aboriginals and Islanders (Confessions) Bill. As previously noted, this Bill contained a strict code of conduct for the interrogation of Aboriginals and Torres Strait Islanders. It was to apply to all Australian police, Federal, State or Territory. It was widely agreed that the Bill was poorly framed and would cause practical difficulties for the investigation of crime.686 Not surprisingly, the Bill received a hostile response in policing circles. The conferral of special rights and protections on Aboriginal suspects was seen as particularly objectionable, for a number of reasons. A large proportion of police have traditionally been socially conservative, and from this perspective, special treatment for minority groups could be seen as unfair to the broader society. The Queensland Government, working closely with Queensland Police, expressed a philosophical aversion to ‘giving preferential treatment on a racial basis’.687
681 Sallmann (1978b: 89). 682 Sallmann (1978b: 90-91), Sallmann (1982a: 261). 683 Haldane (1995: 291). 684 Sallmann (1978b), Sallmann (1982a). 685 Sallmann (1978b: 89), Sallmann (1982a: 259-60). 686 See Rees (1982a). 687 Bjelke-Peterson (1977). 159
Further, the crime rate among Aboriginal people was particularly high. Some were aghast at the idea of placing hurdles in the way of controlling such crime. One Queensland MLA and former police officer, Don Lane, warned that if the Bill was enacted ‘thugs and criminals who happen to be descendants of indigenous inhabitants of Australia or of Islanders, could hire themselves out as professional bashers with immunity from effective police action’.688 The Queensland Police Union argued that Senator Bonner’s Bill would ‘render virtually impossible the upholding of law and order amongst the colored members of our community’.689
Finally, there was long standing conflict between police in most States and local Aboriginal communities. Police therefore feared that the curtailment of police powers and the conferral of rights on Aboriginal people would strengthen the hands of Aboriginal people in this ongoing conflict and lead to a loss of face on the part of police. At this time, there were even mixed views within the Police Federation of Australia as to whether an effort should be made to improve police/ Aboriginal relations.690
Opposition to the Bill was led by Queensland, Senator Bonner’s home State. The Queensland Government, with the close involvement of the Queensland Police, emphasised the difficulty of following all of the procedural requirements under the Bill (for example, securing the attendance of a lawyer or friend or relative) and the inflexibility of the exclusionary rule.691 The Lucas Inquiry was very critical of the Bill for similar reasons.692
The Queensland Police Union wrote to Prime Minister Fraser urging him not to support enactment of the Bill.693 The Police Federation of Australia (which consisted of police unions and associations from each Australian jurisdiction) later
688 Lane (1977: 40). 689 Senate Debates v 579 at 1660 (Senator Bonner, 26 October 1978). 690 NSW Police News (1977: January at 27), NSW Police News (1977: May at 161). 691 Bjelke-Peterson (1977). See also Queensland Police Union (1977: 24). 692 RCCP (1981: 20).
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endorsed the views of the Queensland Police Union and registered a ‘strong protest’ against the Bill.694 The Bill was never enacted.
The Child Welfare Amendment Acts
The year 1977 was a decisive one in the mobilisation of police efforts against unwelcome reform proposals. Within NSW, police fought a successful rearguard action to water down the Child Welfare (Amendment) Act 1977 that had been enacted in March. The debate centred on police discretion in questioning juvenile suspects. Concern had been expressed to the ALRC about NSW police practices in this regard. One Sydney resident wrote to the commission to relay concerns about police actions in relation to his son, who had committed a house breaking offence. The son had been taken from school to a police station at 1.30pm and then questioned. No attempt had been made to notify the parents until 4.30pm. Although the parents requested immediate access to their son, this was not permitted until 6.30pm, when questioning was complete. The family was not permitted to have a copy of the son’s statement. The father called for legislative rules to curtail such practices, pointing out that police conduct in his son’s case did not appear to be contrary to the existing law.695
NSW courts had also criticised unsatisfactory practices in this area and had, on a number of occasions, excluded a juvenile’s confession from evidence on the basis that police had failed to make proper efforts to secure the attendance of parents.696 In one case the Supreme Court overturned a conviction which a Walgett magistrate had imposed despite finding that police had assaulted an 11 year old suspect in front of 13 and 14 year old suspects immediately prior to their confessions.697 It was a sign of the times that the case had been taken by the
693 See House of Representatives Debates v 579 at 1659-60 (Senator Bonner, 26 October 1978). 694 NSW Police News (1977: May at 161). 695 Squire (1975). 696 Rees (1982b). 697 Dixon v McCarthy [1975] 1 NSWLR 617. 161
Aboriginal Legal Service. The magistrate’s decision may well have otherwise gone unchallenged.
The Child Welfare (Amendment) Act 1977 was directed (among other things) at this problem.698 It contained provisions similar to those recommended by both the Phibbs and Muir inquiries. Where a person aged under 18 was brought into a police station to be questioned about an offence, the officer in charge of the station was required to cause a parent or guardian of the young person to be notified of this fact.699 An officer who failed to exercise reasonable diligence in attempting to secure this notification was guilty of a criminal offence punishable by up to 12 months imprisonment or a $1000 fine, unless the officer had a reasonable excuse for non-compliance.700 If the young person was questioned at the police station, any admission made by the young person was only to be admitted into evidence if a parent or guardian had been present, or if a person other than a police officer had been present with the consent of a parent or guardian.701
With hindsight, it seems remarkable that provisions that imposed such a heavy onus on police were enacted, given the fate of more modest reform recommendations of this period. One important factor was that the Police Association was not consulted prior to the introduction of the amendments, which were then rushed through Parliament,702 providing little opportunity for opposition to be mobilised. There were conflicting claims as to whether the Police Commissioner had been consulted. If so, it appears he had made no comment.703
698 The centrepiece of the Act was a provision requiring medical practitioners to report suspected cases of child abuse. This aspect of the Bill was the subject of almost all the early press coverage. See, for example, SMH (1976: 14 January at 8), Australian (1976: 14 January at 3). 699 Subsection 146A(1) of the Child Welfare Act 1939, inserted by schedule 5(3) to the Child Welfare (Amendment) Act 1977. 700 Subsection 146A(2) of the Child Welfare Act 1939, inserted by schedule 5(3) to the Child Welfare (Amendment) Act 1977. 701 Section 81C of the Child Welfare Act 1939, inserted by schedule 4(1) to the Child Welfare (Amendment) Act 1977. 702 See LA v 3/129 at 4689-91 (Mr Willis, 2 March 1977) and 4691-4700 (Mr Jackson, 2 March 1977). 703 The Minister, Rex Jackson, explicitly claimed that the Police Force had been consulted and had made no comment: LA v 3/135 at 9115 (Mr Jackson, 26 October 1977). The President of the Police Association claimed there had been no such consultation (McLelland 1977: 241). There was no formal comment from the Commissioner or the Police Force on the issue. 162
In the Parliamentary debate on the Bill, the parental notification provisions received quite a mixed response from the Opposition. John Dowd MLA described the amendments as ‘highly offensive to the police’.704 The Opposition expressed particular concern about the difficulty of contacting a parent or guardian within a realistic period, especially in country areas.705 It unsuccessfully moved an amendment to allow for the attendance of a Youth and Community Services officer as an alternative to a parent or guardian.706 The Opposition also sought to amend the parental notification rules to apply only in the case of suspects up to 15, not those aged 16 and 17.707
Yet Opposition members also expressed support for the underlying objectives of the provisions.708 John Dowd argued, despite his ‘offensive to police’ comments, that it was ‘utter nonsense to have a provision that excludes only statements taken at the police station’709 which would be ‘easy for the police to get around’.710 Dowd unsuccessfully moved an amendment to require the presence of a parent or guardian during questioning at any location.711 He also argued that the amendments should give a juvenile a right to the presence of a solicitor, give parents a right to enter a police station, and limit the ‘reasonable excuse’ defence available to police who failed to notify a parent or guardian.712
Police awareness of the amendments, and opposition to them, mounted in the period between their enactment in March 1977 and their commencement on 1 July. One by one, individual Branches of the Police Association raised concerns with the Association’s committee.713 In turn, the Police Association and Police
704 LA v 3/129 at 4872 (Mr Dowd, 8 March 1977). 705 LA v 3/129 at 4860 (Mr Taylor, 8 March 1977) and at 4872 (Mr Dowd, 8 March 1977). 706 LA v 3/129 at 4901 (Mr Dowd, 8 March 1977). 707 LA v 3/129 at 4899 (Mr Dowd, 8 March 1977). See also v 3/129 at 4811 (Mr Leitch, 8 March 1977). 708 LA v 3/129 at 4860 (Mr Taylor, 8 March 1977). 709 LA v 3/129 at 4872 (Mr Dowd, 8 March 1977). 710 LA v 3/129 at 4875 (Mr Dowd, 8 March 1977). 711 LA v 3/129 at 4900 (Mr Dowd, 8 March 1977). 712 LA v 3/129 at 4872-75 (Mr Dowd, 8 March 1977). 713 See NSW Police News (1977: October at 357). 163
Department pursued coordinated efforts to secure amendments to the new rules.714
The ensuing media campaign against the new rules was impressive in its scope, with criticism of the Bill coming from everyone from the Police Commissioner,715 to the Police Public Relations Department,716 the Police Association President and Secretary, 717 and a host of individual police officers, named or unnamed.718 All spoke of the threat to law and order posed by the requirement that police secure the presence of a parent before interrogating a juvenile. These arguments received immediate and strong support from a number of newspapers.719
In addition to this public campaign, the Government were lobbied privately. A week after the laws came into force, a deputation from the Police Association met with Premier Wran and called for the repeal of the amendments.720 Subsequently, the Police Commissioner made both oral and written representations to the Premier criticising the Bill.721 The central concern expressed by police was that the amendments would seriously undermine their ability to deal effectively with crime. One detective warned that even ‘if parents are available, many refuse to come- and we can’t make them… So what can we do but let them go, no matter how serious the crime?’.722
Some police warned that once the constraints imposed by the Act became widely known ‘the juvenile crime rate could increase significantly’.723 The Secretary of the Police Association foreshadowed that the new law ‘could encourage criminal
714 Wood (1977), NSW Police News (1977: November at 388, 394). 715 SMH (1977: 1 July at 7). 716 DL (1977: 5 August at 7). 717 Australian (1977: 28 June at 5), DT (1977: 2 July; 5 August at 5). 718 See CWD (1977: 6 July at 3), DL (1977: 7 July at 5), DT (1977: 2 July). 719 See, for example, DL (1977: 28 June at 4), DM (1977: 29 June at 23), DT (1977: 2 July), CWD (1977: 6 July at 3). 720 CWD (1977: 7 July at 5). 721 Wood (1977). 722 DT (1977: 2 July). 723 DL (1977: 7 July at 5). 164
parents to work with their children in robberies and other crimes’.724 Opposition Justice spokesman Peter Coleman repeatedly predicted that the amendments would result in a ‘wave of juvenile crime’,725 and later claimed this had occurred.726 A number of newspapers took up the same theme, warning that NSW was on the verge of a wave of crime by ‘untouchable’ young offenders.727
There were a number of themes common to the criticisms of the Child Welfare (Amendment) Act 1977 and Senator Bonner’s Aboriginals and Islanders (Admissibility of Confessions) Bill. As with the Bonner Bill, many opponents of the child welfare amendments were philosophically opposed to giving special rights to a specific group. NSW Police Commissioner Merv Wood said that ‘minorities - not only in the policing area - have had too much say’.728
Like Aboriginal people, juveniles were also responsible for a disproportionate number of crimes. Judge Muir had prepared his recommendations concerning juvenile justice on the basis that the welfare of the young person was ‘paramount’.729 Police Commissioner Wood had a different perspective: ‘Modern society has developed a new style of 16-year old and 17-year old boys. Murder, armed hold-up, you name it, they’re engaged in it’.730 A detective sergeant in Orange who was interviewed by the local newspaper about the new laws pointed out that juveniles were responsible for more than half of local crime.731 Liberal Party spokesman Peter Coleman argued that the amendments made the police and the law ‘a laughing-stock to young criminals… when the biggest group of criminals is aged between 17 and 19’.732 The Daily Telegraph emphasised that a ‘disturbingly high percentage of crimes are committed by teenagers’.733
724 DT (1977: 2 July). 725 SMH 1977 (28 June at 3), DT (1977: 5 August at 5), CWD (1977: 5 August at 1), LA v 3/135 at 9099 (27 October 1977). 726 DT (1977: 5 August at 5). 727 See DT (1977: 2 July, 5 August at 5), DL (1977: 7 July at 5), SH (10 July at 7). 728 SMH (1977: 1 July at 7). 729 Muir (1976: 1). 730 SMH (1977: 1 July at 7). 731 CWD (1977: 6 July at 3). 732 DT (1977: 5 August at 5). 733 DT (1977: 5 August at 14), DL (1977: 5 August at 4). 165
The Opposition’s earlier proposal to confine the amendments to those under 16 reflected an attempt to distinguish between the ‘vulnerable juveniles’ who concerned Judge Muir and the ‘dangerous juveniles’ who concerned Commissioner Wood. John Dowd had sought to reconcile these conflicting visions of youth by drawing a clear distinction between a ‘hoodlum 17 ½ years of age’ and ‘children of tender years’.734 While crime was ‘substantially a problem that exists among young persons from 16 years’; 735 there were plenty of ways of ‘getting a confession out of a kid… to scare a kid into admitting something’.736 This attempted distinction had some merit. Yet clearly, many juveniles both above and below 16 could equally be described as ‘thugs’ and as ‘scared kids’, with no clear dividing line between the two categories.
During July and early August, there were a number of reports that juveniles had escaped prosecution because confessional evidence had been obtained when no parent was present.737 There was also intense press criticism of the legislation.738 As early as 28 June, Premier Wran had promised to ‘keep a close watch on the situation’ and to ‘abolish or alter the laws’ if they were found to be helping criminals and hindering police.739 On 16 August, the Government announced that the legislation would be amended.740
Under the amendments, introduced into Parliament on 26 October 1977, and enacted the following month, approval of a parent or guardian was no longer to be a prerequisite for another person to attend the questioning of a juvenile in place of a parent or guardian. Instead, the juvenile could choose their own lawyer; and a 16 or 17 year old could agree to any person.741 It had been widely agreed that the
734 LA v 3/129 at 4881 (8 March 1977). 735 LA v 3/135 at 9123 (Mr Dowd, 26 October 1977). 736 LA v 3/135 at 9130 (Mr Dowd, 26 October 1977). 737 SH (1977: 10 July), DT (1977: 5 August at 5), DL (1977: 5 August at 4). 738 See, for example, DT (1977: 2 July; 5 August at 5, 14), CWD (1977: 6 July at 3). 739 DM (1977: 29 June at 23). 740 SMH (1977: 17 August at 3). 741 Schedule 1(1) to the Child Welfare (Further Amendment) Act 1977 repealing and replacing section 81C of the Child Welfare Act 1945. 166
previous rule requiring parental consent had been inappropriate. The Council for Civil Liberties, for example, had argued that there should be scope for a juvenile to choose a third party, regardless of a parent or guardian’s views.742
The Child Welfare (Further Amendment) Act 1977 also removed the explicit obligation on police to secure attendance of a parent, guardian or third party, and repealed the criminal offence to which police had been subject. The remaining penalty for non-compliance was exclusion from evidence of a resulting admission or confession. The rule governing exclusion of evidence was also modified to allow a court to accept a such an admission or confession into evidence if there was a ‘proper and sufficient reason’ for the absence of an appropriate adult.743
The sequence of events from the enactment of the parental notification rule to its watering down was significant in a number of respects. Most obviously, the second set of amendments reflected the willingness and ability of both the Police Force and the Police Association to mount a campaign on a law reform issue. The Police Commissioner, Mervyn Wood, had openly criticised legislation without coming under fire as Norm Allan had in 1963. The Police Association had taken a very active role in the debate, in marked contrast to its silence on police powers issues until a couple of years previously.
Still, the Police Association expressed dissatisfaction with the final result of its efforts.744 The government had secured a significant and lasting reform to criminal investigation law in NSW. There was now a clear legislative limitation on the ability of police to interrogate a juvenile without a parent, guardian or other appropriate adult being present. NSW was the first Australian jurisdiction to have a provision of this kind,745 at the very time that so many reform recommendations by Mitchell, Beach, Lucas and the ALRC were being disregarded.
742 SMH (1977: 27 August at 6). 743 Schedule 1 to the Child Welfare (Further Amendment) Act 1977 repealing and replacing section 81C of the Child Welfare Act 1945 and repealing section 146A of that Act. 744 SMH (1977: 17 August at 3). 745 Rees (1982b: 68-69). 167
Peter Coleman stood by his claim that the amendments had caused a juvenile crime wave.746 The Minister, Rex Jackson, felt there was ‘no evidence’ for this.747 In truth, no evidence did emerge of a crime wave during the period when the absolute exclusionary rule was in force, from 1 July to 14 November 1977. The statistics on the number of juveniles convicted of NSW offences show a slight fall from 13 535 in 1976/77 to 13 094 in 1977/78, the period in which the original amendments were enacted and then modified.748 There were, however, some individual cases where substantive injustices do appear to have resulted. In 1978, rape convictions imposed on four youths were set aside because the convictions had been obtained without a parent being present, during the period when the absolute exclusionary rule had applied. Chief Justice Street said the original provisions had been a ‘legislative blunder’.749 Another judge said they were ‘infamous’.750
Subsequent commentary on the operation of the modified provisions introduced under the Child Welfare (Further Amendment) Act 1977 suggests that it was rare for a juvenile’s admission or confession to be challenged on the basis of an alleged contravention of the requirement for a parent or other adult to be present.751 Interestingly, it was also argued that the presence of an independent adult regularly benefited police more than the child.752
746 LA v 3/135 at 9099 (Mr Coleman, 26 October 1977). 747 LA v 3/135 at 9082 (Second reading speech on the Child Welfare (Further Amendment) Bill 1977 by the Minister for Youth and Community Services, Mr Jackson, 26 October 1977). 748 NSW Bureau of Crime Statistics and Research (1978: 57) and (1982: 47). 749 ALJ (1978: 3(5) at 44). 750 Lucas (1979). The judge was Justice Yeldham, in Middleton v Henderson (NSW Supreme Court, unreported, 1 September 1978). 751 Basten, Richardson, Ronalds and Zdenkowski (1982: 86). 752 Rees (1982b: 68-9). 168
Criminal Investigation Bill 1977
In 1977, the Federal Liberal/National Government unveiled the most ambitious law reform initiative in respect of police powers of criminal investigation ever seen in Australia. This was the Commonwealth’s Criminal Investigation Bill 1977. The Bill was closely modelled on the recommendations of the ALRC Criminal Investigation report. Some of the key provisions were as follows.
The Bill applied to officers of the Commonwealth Police, whether investigating Commonwealth, State or Territory offences (section 6) but not to State or Territory police investigating Commonwealth offences (section 43). Much of the Bill dealt with the questioning of suspects. Before questioning a suspect, a police officer was to be required to notify the suspect of the right to silence, the right to consult a lawyer and the right to consult an appropriate relative or friend (section 18). There were provisions governing the availability and exercise of these rights (sections 20-22); for providing information to a relative, friend or lawyer of a suspect about the where the person was being held (section 23), and for providing medical treatment to a suspect (section 25).
An Aboriginal suspect could only be interviewed in the presence of a ‘prisoner’s friend’ (for example, a friend or relative) unless the suspect explicitly waived this right (sections 25 and 26). Police were to notify a legal aid organisation on taking an Aboriginal into custody (section 25). An interpreter was to be present during the questioning of a person not fluent in English (section 27). For juvenile suspects, there was a requirement to secure the attendance of a parent or other appropriate representative (section 28).
A confession was to be tape recorded or conducted in front of an independent person, unless this was impractical (section 31). Where a confession was not tape recorded, detailed procedures for recording and verifying the confession in writing would have to be followed (sections 31 and 33). Tapes containing recordings
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would have to be given to one of the ‘authorised custodians’ to be appointed by the Minister (section 34). Courts were to instruct juries to have regard to how a confession was recorded, in assessing the evidential value of the confession (section 30).
A significant omission from the Bill was an explicit power to detain a suspect for questioning. Instead, the Bill dealt with the hazy dividing line between cooperation and deemed arrest by introducing a new concept: ‘under restraint’. A person could be ‘under restraint’ (ie, not free to leave) without being in ‘lawful custody’ (ie, arrest made or could have been made). A suspect’s rights would operate as soon as they were under restraint (for example, the right to a lawyer), but police powers (for example, fingerprinting) would only arise when a person was in lawful custody.753
Police were to receive various powers to search for and seize evidence, depending on the circumstance, for example, following arrest, in an emergency, with consent, or under warrant (sections 60-64). Evidence obtained in contravention of the Act was subject to a ‘reverse onus’ exclusion rule (section 73).
In his second reading speech on the Bill, Liberal Attorney-General Bob Ellicott noted that this was the first occasion that a Bill based on an ALRC report had been introduced into Parliament, and warned that there was little point in referring matters to the ALRC ‘if the results are ignored’.754 The Labor Party was supportive: ‘The Bill does many tremendous things’.755 Its only criticisms were that there should be a power to detain suspects for questioning, and that the exclusionary rule should be more strict.756 The Attorney-General foreshadowed that the Bill would remain on the table in the House to allow an extensive public
753 See the discussion of this distinction in the explanatory memorandum to the Bill, page 1. 754 House of Representatives Debates v 104 at 563-64 (Second reading speech to the Criminal Investigation Bill by the Attorney-General, Mr Ellicott, 24 March 1977). 755 House of Representatives Debates v 105 at 1491 (Mr Bowen, 3 May 1977). 756 House of Representatives Debates v 105 at 1486-91 (Mr Bowen, 3 May 1977). 170
consultation.757 He specifically invited submissions from State Ministers and police, because the ‘legislation could become a model for all criminal investigation in Australia’.758
While the Attorney-General argued that the Bill was the most significant legislative initiative of its kind within the Commonwealth of Nations since the establishment of modern police forces,759 its opponents were not so impressed. On 20 April 1977, Australian police commissioners meeting in Melbourne issued a joint statement that the Bill would have a profoundly adverse effect on the efficiency of policing throughout Australia.760 Two weeks later, there was a seminar in Sydney hosted by the Australian Institute of Criminology, at which Justice Kirby clashed angrily with former Queensland Police Commissioner Ray Whitrod over the merits of the Bill.761
The potential implications of the Bill for State police dominated the debate, with public opposition to the Bill being driven by State rather than Commonwealth police. Justice Kirby recalls that ‘the State police forces, and even more importantly the State police unions’ saw the Bill as a ‘Trojan horse for the introduction of the same regime into the State’.762 The NSW Police Association explicitly warned that if the Bill was passed ‘pressure will be brought to bear on State governments to copy it’.763 A committee of Queensland police and prosecutors who prepared a detailed report on the Bill ‘approached its task by largely acting on the assumption that the Bill will apply to all Police Forces’.764
757 House of Representatives Debates v 104 at 565 (Second reading speech to the Criminal Investigation Bill by the Attorney-General, Mr Ellicott, 24 March 1977). 758 House of Representatives Debates v 104 at 566 (Second reading speech to the Criminal Investigation Bill by the Attorney-General, Mr Ellicott, 24 March 1977). Gareth Evans, principal author of the Criminal Investigation report had also emphasised during 1976 that the ALRC’s recommendations were of ‘immediate application’ to State police forces: Evans (1976: 16), Advertiser (1976: 26 April at 3). 759 ALJ (1977). 760 NMH (1977: 21 April at 1). 761 Milliken (1977), CT (1977: 9 May at 12). 762 Justice Michael Kirby interview, 2 June 1997. 763 Police Association of NSW (1977). 764 Miller, McIntyre, O’Connor, Murphy, Martin, Creevey and Fursman (1977: 3). 171
Criticism of the Bill centred on the claim that the enactment of the detailed rules would ‘seriously hamper investigations’.765 In particular, requiring police to point out the suspect’s right to silence and to invite the suspect to obtain a lawyer would inhibit a person from making confessions.766 The joint statement by Police Commissioners warned that enactment of the Bill would ‘frustrate efforts to bring offenders to justice.767 Ray Whitrod warned that if enacted the Bill would send the conviction rate ‘plunging’.768
The NSW Police Association identified the following common themes in the Criminal Investigation Bill 1977, the Child Welfare (Amendment) Act 1977 and the Aborigines and Islanders (Admissibility of Confessions) Bill 1976:
Recent legislative developments both at State and Federal levels have indicated an apparently suicidal desire by Governments to severely curtail the ability of the one group in the community upon whom the same Governments rely so heavily to combat the tidal wave of crime which is steadily building up in this country - the Police Force. … there is a fine line between legislation that protects the rights of citizens and legislation that hampers police operations. Each time the legislators place one more restraint on their Police they can guarantee one sure result - More Victims! and aren’t the victims also citizens with rights?
765 Police Association of NSW (1977). See also Miller, McIntyre, O’Connor, Murphy, Martin, Creevey and Fursman (1977: 56). 766 Miller, McIntyre, O’Connor, Murphy, Martin, Creevey and Fursman (1977: 3). See also ALJ (1977). The Victorian Police Association had previously warned that explaining the right to silence to suspects would ‘result in guilty men declining to answer questions and merely walking out the door in contempt of justice’: Age (1976: 19 October at 5). 767 NMH (1977: 21 April at 1). 768 Milliken (1977: 6). 172
It was argued that the better approach was to trust the adversarial nature of the criminal justice system, and the wisdom of judges and juries in considering the appropriateness and credibility of police methods of gathering evidence.769
Criticism was also directed at the special provisions in the Bill for Aboriginal people, juveniles and non-English speakers, especially in the report drawn up by Queensland police and prosecutors. The Queensland report described the special provisions for Aboriginal suspects as a ‘prime example of racism’,770 and warned that it would be extremely difficult to ascertain when an interpreter would be required, throwing the ‘whole process of an investigation… open to challenge’. 771
These were among the many emotive comments that marked opposition to the Bill. Two ACT prosecutors warned that the proposed rules governing questioning would place lives at risk in the case of terrorist emergencies.772 Ray Whitrod warned of a possible break down in public order. A senior South Australian legal practitioner suggested that whether you opposed or supported the Criminal Investigation Bill 1977 depended on whether you were ‘on the side of law abiding members of the public and the victims of crime, or of those who break or are suspected of breaking the law’773. The ACT Police described the Bill as ‘misconceived’, ‘biased’ and ‘obtuse’.774
In the background to the debate was a fear of following United States style constitutional limitations on criminal investigation. Fears of the American due process model had been around even before the Criminal Investigation report was tabled. In 1969, one NSW Government MLA Mr Cameron had warned that the United States Supreme Court had denied American police the opportunity ‘to
769 See Chamberlain (1977), Miller, McIntyre, O’Connor, Murphy, Martin, Creevey and Fursman (1977: 25). 770 Miller, McIntyre, O’Connor, Murphy, Martin, Creevey and Fursman (1977: 4, 19-20). 771 Miller, McIntyre, O’Connor, Murphy, Martin, Creevey and Fursman (1977: 36). 772 CT (1977: 9 May at 12). 773 Chamberlain (1977: 2). 774 See Kirby (1979: 630). 173
interrogate effectively a person immediately after his arrest’.775 In 1975, the Australian Federation of Police Associations and Unions had expressed concern at the ‘tendency in Australia to follow the system of Civil rights etc., as set out in the United States Constitution’.776 The Queensland report on the Bill warned that if search powers were codified, then ‘based upon the American experience’ the courts would gradually narrow those powers.777
Concerns about the American model were to persist into the 1980s and 1990s. Submissions to the NSW LRC inquiry into Police Powers of Detention and Investigation after Arrest in the late 1980s warned against the ‘destructive path’ of the United States;778 the need to avoid the ‘problems flowing from Miranda’;779 and the need to ‘resist’ a United States-style exclusionary rule.780 In a detailed report in 1988, one NSW Police officer was to claim that the impact of the Miranda781 decision (which, famously, enshrined the requirement to caution a suspect about their right to silence and to legal counsel) had:
been to halt non-voluntary pre-trial investigative detention… The Miranda decision has been blamed by many in the United States for the crime problems that the country seems to be facing. It has also been held responsible for reducing the authority of the police to an inconsequence.782
It is worth noting that studies of the impact of Miranda suggest no such fundamental impairment of the workings of the American criminal justice system. On the contrary, there is a reasonable argument that the net impact appears to have
775 LA v 3/81 at 857 (Mr Cameron, 11 September 1969). 776 Australian Federation of Police Associations/Unions (1975: 1). 777 Miller, McIntyre, O’Connor, Murphy, Martin, Creevey and Fursman (1997: 45). 778 Submission by a magistrate: ‘Informal Consultations - Initial Analysis of Responses, May - July 1987’ p 6 (NSW Archives Box 18/3874). 779 Submission by a Queens’ Counsel: ‘Informal Consultations - Initial Analysis of Responses, May - July 1987’ p 7 (NSW Archives Box 18/3874). 780 Submission by NSW Police Commissioner: ‘Informal Consultations - Initial Analysis of Responses, May - July 1987’ p 24 (NSW Archives Box 18/3874). 781 Miranda v Arizona (1966) 384 US 436. 782 Ireland (1989: 38-39). 174
been to enhance police professionalism and hence police effectiveness.783 However, perceptions of crime and justice in America were important to the debate in Australia. These perceptions were influenced by the portrayal of American police, including in movies and television dramas, as being constrained by legal and procedural limitations that allowed the guilty to go free and constrained their fight against crime.784
In Australia, police were much more concerned to scuttle the Criminal Investigation Bill than to secure extra powers. Civil libertarians had more to say about the absence of a detention power in that Bill than did police.785 Police Forces and Police Associations has also been indifferent to additional powers in their submissions to the ALRC Criminal Investigation inquiry. Neither the Australian Federation of Police Associations nor the NSW Police Association had specified any extra powers required by police.786
The NSW Council for Civil Liberties was supportive of the Criminal Investigation Bill 1977, 787 although neither it nor its interstate counterparts played a significant role in the public debate. On the other hand, a number of lawyers and judges supported the police campaign against the Bill. The detailed Queensland report that damned the Bill was co-signed by the Chief Crown Prosecutor, the Assistant Senior Crown Prosecutor, and a Legal Officer from the Solicitor-General’s Office.788 Two ACT prosecutors led the attack on the provisions to regulate questioning, at a seminar on the Bill.789 A Tasmanian judge, Justice Neasey, was another leading critic of the Bill which he described as an ‘unjustified fetter’ on effective criminal investigation.790 One South Australian lawyer complained of
783 Leo (1996b: 668-74), Walker (1988; 1989: 280). There has been much debate about the impact of Miranda: Leo and Thomas (1998). 784 See Reiner (2000: 155). 785 See Civil Liberty (1977: 70 at 4; 75 at 4), Alt LJ (1977: 195), Milliken (1977). 786 See Australian Federation of Police Associations/Unions (1975), ALRC (1975c: 1-3). 787 See Civil Liberty (1977: 70 at 4; 75 at 4), Milliken (1977). 788 Miller, McIntyre, O’Connor, Murphy, Martin, Creevey and Fursman (1977: 57). 789 CT (1977: 9 May at 12). 790 Neasey (1977). 175
‘abuse of our police forces’791 and the folly of making it more difficult for police to fight ‘the rising tide of serious crime’.792 The Criminal Law Committee of the South Australian Law Society criticised the reverse onus exclusionary rule and the conferral of rights on suspects who were under ‘restraint’ but not under arrest.793
The effectiveness of the campaign against the Bill, particularly by police, was widely recognised.794 The influence of police was seen as a matter of significant concern in some quarters.795 The co-operation between NSW Police Commissioner Merv Wood and the Police Association had carried over from the Child Welfare (Amendment) Act debate. Wood asked the Association to let its members know that he had written to the Commonwealth Attorney-General to detail concerns about the Criminal Investigation Bill 1977.796
On 3 May 1977, the Commonwealth Attorney-General announced that debate on the Bill would be deferred, to allow further submissions to be received.797 The Bill then continued to sit before the House of Representatives until the calling of the Federal election in December of that year, when it disappeared with the dissolution of the Parliament. Another chapter in the long story of the Criminal Investigation report had closed.
Lucas and Norris
The Queensland Police Force and Police Union each came to the Lucas Inquiry with extensive proposals to broaden police powers. This was in marked contrast to the very limited proposals that Victorian police had made to the Beach inquiry,
791 Letter to the editor by F Harden Codd, Law Society Bulletin (1977: October at 4). 792 Chamberlain (1977: 2). 793 O’Loughlin (1977: 9). 794 See, for example, the comments by Council for Civil Liberties President Carolyn Simpson in Civil Liberty (1977: 75 at 4) and the references in the following footnote. 795 See the comments of Gareth Evans in SMH (1977: 11 July at 3), Newcastle resident A K Cox (NMH 1977: 23 April), an editorial in the Alternative Law Journal (Alt LJ 1977) and Milliken (1977). 796 Wood (1977).
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or that police generally had made to the ALRC. Right from the outset, Police Union President Ron Redmond had urged members to contribute to making a submission that would ‘assist our colleagues in the fight against crime over the next decades’.798 He foreshadowed that the submission would be presented in ‘lofty terms’.799 The Union also assured its members that the Lucas Inquiry was ‘attempting to once and for all remove all the hindrances and pitfalls to the administering of justice in this State’.800
The Queensland Police Union put in a detailed submission to the Lucas Inquiry in which it argued that ‘the law as it is presently framed seriously impairs the powers of Police’.801 The submission opposed any greater regulation of interrogations (including mandatory taping) or of the conduct of identification parades. It proposed that police be given new and broader powers to demand the name and address of a suspect, to detain a suspect for questioning for a reasonable period, and to take fingerprints, photographs, handwriting or other samples from a person if reasonably required.802 It also recommended that there be scope to issue officers of the rank of sergeant or above with a standing authority to enter and search premises.803 The submission from Police Commissioner Terry Lewis also proposed additional powers for police, including detention for questioning for up to 12 hours for minor offences and 24 hours for serious offences, and abrogation of the right to silence.804
Leading Queensland civil libertarian Terry O’Gorman argued that these proposals constituted a ‘successful attempt by police to shift the spotlight from wide-spread malpractice to their assertion of inadequate powers’.805 Another commentator
797 House of Representatives Debates v 105 (Mr Ellicott, Attorney-General, 3 May 1977). 798 Redmond (1977). 799 Queensland Police Journal (1977: 1 at 28). 800 Queensland Police Journal (1977: 1 at 24). 801 Queensland Police Union (1977: 1). 802 Queensland Police Union (1977: especially 13, 15, 17). 803 Queensland Police Union (1977: 21). 804 Queensland Police Department (1977: 33). 805 O’Gorman (1977a: 199). See also O’Gorman (1977b). 177
argued that it was at least a step forward for police to have moved from denial of their true investigatory practices to justification of them.806
When the Lucas Inquiry reported, the Queensland Government asked the Solicitor-General, the Under Secretary of Justice and the Police Commissioner to advise it which recommendations to implement, and how implementation should be pursued.807 The Queensland Cabinet subsequently decided that in accordance with the recommendations of this group there would be no requirement to tape record confessions, but that other matters concerning police powers should be considered further by the Minister for Police.808 In the short term, no legislation was forthcoming.
In Victoria, the now familiar story was repeated. In setting up the Norris Committee, the Victorian Government had suggested it wanted to move quickly to enact legislative reforms.809 In fact, the Norris Committee rejected most of the Beach reform recommendations.810 In turn, not even the limited legislative proposals recommended by the Norris Committee were implemented.811
Still, some positives were said to have emerged from the ‘sad and extraordinary saga’812 of the Beach inquiry and the resulting Norris Committee inquiry. Peter Sallmann, the Victorian lawyer who had made law reform submissions to the Beach inquiry, argued that Victorian police had complied more closely with legal requirements in the aftermath of the inquiry, and were now more keen to reveal the inadequacy of their existing powers.813 He also reported that police had
806 Basten (1982b: 247). 807 Wiltshire (1977: 244), Queensland Legislative Assembly Debates v 273 at 237 (Minister for Police, answer to question on notice, 30 August 1977). 808 Queensland Legislative Assembly Debates v 277 at 4115 (Attorney-General, answer to question on notice, 18 April 1979) and v 280 at 2419-20 (Attorney-General, answer to question on notice, 11 December 1979), Applegarth (1982: 273). 809 Age (1976: 14 December at 3). 810 For an immediate response to the hading down of the Norris Committee report by a Victorian lawyer with a close interest in the issues, see Sallmann (1978b). 811 See Sallmann (1982a: 262-63). 812 Sallmann (1978b: 88). 813 Sallmann (1982a: 264, 268). 178
updated, improved and published their internal guidelines governing criminal investigation, taking on board many of the issues raised by the Beach inquiry.814
Judge Paul Mullaly, counsel assisting the Norris Committee, later agreed that the Beach inquiry and Norris Committee had influenced police practices, and also argued that the inquiries had played an important role in improving the understanding of criminal investigation law among Victorian judges and barristers.815 In the case of the Lucas Inquiry, it was suggested that the Queensland judiciary demonstrated a greater preparedness to reject police evidence in the aftermath of its report.816
It is also reasonable to hypothesise that there was a link between the revelations of the mid-1970s inquiries, and the decisions of the High Court in the following decade concerning police conduct and illegality. Between 1977 and 1986 the High Court handed down a series of decisions directed at narrowing police discretions in questioning and detaining suspects, obtaining uncorroborated and unsigned ‘confessions’, and in making use of unlawfully obtained evidence. A number of these cases are discussed in chapter 6, but it is worth illustrating the point by reference to a leading High Court case on discretionary exclusion of evidence, Bunning v Cross,817 which was handed down in 1978.
In Bunning v Cross, Justices Stephen and Aickin of the High Court, with the concurrence of Chief Justice Barwick, clarified the principles governing discretionary exclusion of evidence by a court in a criminal trial.818 In doing so, these judges reaffirmed that there were broader grounds for exclusion under Australian law than under English law, particularly as a result of the High Court’s earlier decision in R v Ireland.819 In Bunning v Cross, Justices Stephen and
814 Sallmann (1982c: 109). 815 Mullaly to author, 10 September 1998. 816 Rees (1982a: 52). 817 (1978) 141 CLR 54. 818 See in particular (1978) 141 CLR 54 at 65 per Barwick CJ and at 74-81 per Stephen and Aickin JJ. 819 (1970) 126 CLR 321. 179
Aickin held that a court should make its decision whether to exclude unlawfully obtained evidence by weighing broad public policy considerations, rather than solely by a narrower consideration of ‘fairness’ to the accused.
Even if there was no suggestion of unfairness, because the accused was never ‘tricked’ and the resulting evidence was cogent, exclusion might still be appropriate. This would especially be so where there had been ‘a deliberate or reckless disregard of the law’ by law enforcement officers.820 Justices Stephen and Aickin spoke of ‘society’s right to insist that those who enforce the law themselves respect it’.821 They emphasised that ‘the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law’.822
Interestingly, the judges expressly drew a link between the role of the judiciary in deciding whether to exclude evidence, and the role of the legislature in enacting substantive rules to govern police. If the legislature manifested a ‘deliberate intent’ to ‘narrowly restrict the police’, then a judge should more readily exclude evidence obtained in breach of those restrictions.823
It seems notable that these justices chose to expound these principles in the immediate aftermath of the Beach and Lucas inquiries. The timing strongly suggests that these judges were at least in part signalling to the State and Territory judiciaries that unlawful conduct by police was a serious matter that should not so readily be overlooked in considering the admissibility of evidence. In that sense, the decision in Bunning v Cross illustrates the links between debate about legislative reform, and developments in the common law. This is a theme to which we will return in chapter 6.
820 (1978) 141 CLR 54 at 78 per Stephen and Aickin JJ. 821 (1978) 141 CLR 54 at 75 per Stephen and Aickin JJ. 822 (1978) 141 CLR 54 at 78 per Stephen and Aickin JJ. 823 (1978) 141 CLR 54 at 80 per Stephen and Aickin JJ. 180
Holding the Line
From 1978 to 1980, supporters of the Commonwealth Criminal Investigation Bill continued to hope for its return. Judd Epstein, editor of the Alternative Law Journal, called on legal academics, civil liberties groups, privacy organisations and the like to become more involved in the debate to provide a countervailing view to that of police.824 Early in 1978 it was reported that the Bill had been deferred because of higher priority projects.825 Later that year it was said to be under review by the new Attorney-General, Senator Durack.826
Justice Kirby remained the Chairperson of the ALRC, and in 1979, he published an article lamenting the ‘Graveyard of Reports’ on criminal investigation law. Justice Kirby saw a possible catalyst for reform in the proposed creation of an ‘Australian Federal Police’.827 This had been recommended by Sir Robert Mark, in a report commissioned following the Hilton Hotel bombing in February 1978. Like the Whitlam Government’s proposed Australia Police, the Australian Federal Police would bring together a number of agencies, including the Commonwealth Police and the ACT Police. Some civil libertarians feared this development;828 but Justice Kirby saw a law reform opportunity that should not be missed: ‘the establishment of a new National Police Force will provide an occasion to introduce new rules to govern the members of that force’.829
Police unions remained on guard against the possible re-emergence of the Criminal Investigation Bill. When it was reported that the Bill might be re- introduced in late 1979 or early 1980, the renamed Police Federation of Australia called on the Federal Government to allow sufficient time for public debate.830 In fact, the Commonwealth Government had decided in 1979 that the Bill should be
824 Epstein (1978: 43). 825 Epstein (1978: 43). 826 Kirby (1979: 630). 827 Kirby (1979: 629-30). 828 Buckley (1978). 829 Kirby (1979: 630).
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reintroduced, after being revised to address criticisms of the 1977 version, and in particular to soften the obligation to tape record confessions. Negotiations involving the Attorney-General’s Department, the Australian Federal Police and other Commonwealth agencies, continued through to 1981.831
The Criminal Investigation Bill 1981 was introduced into the Senate on 18 November of that year.832 Much of the Bill remained unchanged, but restrictions placed on police had been relaxed in a number of areas. Most significantly, tape recording of confessions would be just one option for police. The obtaining of signed confession, or of an unsigned confession adopted on tape or in the presence of an independent person, would be equally permissible (section 32). Another change was that instead of all Aboriginal suspects having a right to a ‘prisoner’s friend’ when questioned, only those at a disadvantage in comparison to the general community in terms of education or understanding would have this right (section 26).
The Commonwealth again decided to let the Bill sit in Parliament during a period of public consultation.833 The built in delays in proceeding with both the 1977 and 1981 Bills undoubtedly gave opponents an opportunity to build their campaign.834 Civil libertarians raised concerns about the diminished safeguards under the Bill, particularly in respect of tape recording.835 The NSW Council for Civil Liberties indicated that it would not be as ‘naively uncritical’ as it had been in 1977.836
Justice Kirby also decried the ‘retreat’ on key topics, including tape recording,837 but still argued for the enactment of the Bill.838 The compromises had been sufficient for the Australian Federal Police Commissioner to describe the Bill as
830 NSW Police News (1979: September at 334). 831 Kirby (1982b: 5). 832 Senate Debates v 92 at 2289. 833 Senate Debates v 92 at 2293 (Senator Durack, Attorney-General, 18 November 1981). 834 Ross (1982: 80), Milliken (1977: 6). 835 O’Gorman (1982). 836 Civil Liberty (1982: 99 at 20-21). 837 Kirby (1982a; 1982b: 5-12). 838 Kirby (1982a; 1982b), Law Report (1982). 182
‘workable’.839 The Labor Party was also on side, subject to similar concerns as those raised by Justice Kirby, with its shadow Attorney-General being none other than Gareth Evans, principal author of the 1975 report.840
Although the Criminal Law Journal argued that the Bill had only ‘indirect and symbolic significance for the States’,841 opposition from State Police again proved decisive. Police Commissioners from all States met with Attorney-General Durack to express concern about the Bill.842 Victorian Police were particularly active.843 Victorian Police Chief Inspector Noel Newnham said that the ‘alleged acceptance’ of the Bill by the Australian Federal Police Commissioner should be weighed in light of the ‘attitude of other Australian police commissioners’ and the ‘relative unimportance’ of the Australian Federal Police in the national crime-fighting scene.844
Commissioner Newnham expressed particular concern about the right under the Bill to the presence of a lawyer, who would have ‘an ability to block an investigation’; and about the special provisions for people not fluent in English, which could ‘prevent police even establishing communication with people’. He described the provisions requiring special procedures for obtaining confessions as ‘insulting’ and ‘impracticable’. Commissioner Newnham also harked back to underlying fears about the United States experience:
When will we learn that what is American is not necessarily good? The Bill leans heavily towards US concepts of enforcing individual liberties at the expense of community freedom - concepts which demonstrably have failed in that country to protect citizens from crime and criminals.845
839 Kirby (1982a: 5), NSW Police News (1982: April at 9). 840 NSW Police News (1982: April at 9), Law Report (1982). 841 Sallmann (1982b: 2). 842 NSW Police News (1982: April at 9). 843 Law Report (1982), Crim LJ (1982: 65). 844 Newnham (1982: 131). 845 Newnham (1982: 132). 183
When the Fraser Liberal/National Government was voted out of office in 1983, the Criminal Investigation Bill 1981 had still not been brought on for debate in the Federal Parliament. Gareth Evans was the Attorney-General in the new Hawke Labor Government and promised ‘early reintroduction’ of a revised Criminal Investigation Bill.846 The Criminal Law Journal invited the ‘adventurous’ new Attorney-General to give the Bill ‘top priority’.847 By late 1984 no legislation had emerged, but Evans indicated that a Criminal Investigation Bill 1985 was planned and that he hoped that it might yet be a model for the States.848
By the end of 1985, there was yet another Commonwealth Attorney-General, but still no Criminal Investigation Bill. After a decade of struggle, the Mitchell, Beach, ALRC, Lucas and Norris recommendations were all on the backburner. The Aboriginals and Islanders (Admissibility of Confessions) Bills and the Criminal Investigation Bills had gone nowhere. The ‘increasingly intrusive, public, political role of the police’849 was the central reason for this. One of the ironies was that only a couple of decades earlier, civil libertarians had championed full political rights for serving police, including the right to be actively involved in political debate and to stand for Parliament.850
The NSW Police Force and the NSW Police Association had played their part in scuttling the Commonwealth Bills. They had also secured changes to the Child Welfare (Amendment) Act 1977; and had engaged in an aggressive campaign against the Wran Government’s 1979 ‘public order’ legislation.
846 Sallmann (1983: 65). 847 Crim LJ (1983: 130-31). 848 Evans (1984: 3), SMH (1984: 19 October at 1). 849 Sallmann (1986: 193). 850 Finnane (2000a: 8-9, 15). 184
Understanding Police Resistance
The response to the 1970s law reform reports reflected the hostility of Australian police to ‘externally imposed reform of criminal procedure’.851 Police, and police hierarchies, are traditionally very conservative: committed to the established order, resistant to change, and suspicious of theory.852 This helps to explain why police were lukewarm in seeking new powers but much more active in opposing regulation. It should also be said that lawyers and others who joined police in opposing reform also came from this conservative perspective. The clash between progressive approaches to law reform and a conservative response led by police also helped drive a wedge between police unions and the Labor Party, undermining the traditional links between the two.853
Yet the police were not merely conservative. They were active. As Sallmann points out, police unions succeeded in both defeating specific reform proposals and in establishing themselves as ‘central actors in any future law reform endeavours’.854 It is true, as Finnane has shown, that senior State police had involved themselves in law reform lobbying since the late nineteenth century.855 Likewise, the NSW Police Association was involved in various ‘law and justice’ issues from the 1930s.856 The novel features of the 1970s were the extensive debate on the topic of criminal investigation law, the degree of militancy shown by police, and the extent of public campaigning by them.
The mid-1970s inquiries handed down their recommendations just as Australia was joining a worldwide trend towards police militancy. In America, there had been a marked increase in police militancy in the 1960s, particularly in relation to industrial relations matters. One writer has suggested that the increasing
851 Dixon (1997: 296). 852 Reiner (2000: 95-97), Bolen (1997). 853 Finnane (2000b: 17). 854 Sallmann (1986: 201). 855 Finnane (1987; 1989; 2000b: 22). 856 Finnane (1999: 9). 185
importance of police in the face of rising crime and disorder, combined with comparatively low pay, was a significant factor.857 In Britain, Sir Robert Mark and other senior police had become heavily involved in political debate about law reform and other topics in the early 1970s.858 Mark was said to have provided a model consciously followed by senior Victorian Police.859
The extent of police militancy during this period in NSW is well illustrated by comments made by Neville Wran, following his retirement in 1986 after a decade as Premier. In all the rich tapestry of his premiership, he identified as his greatest disappointment ‘tinged perhaps even with some disillusionment’ the ‘calculated insubordination of police’ in the late 1970s, in relation to the introduction of a new complaints mechanism and the 1979 public order legislative reforms.860
Bob Page, a leading figure in the NSW Police Association and the national federation, noted this militant trend in declaring in 1976 that police were ‘no longer prepared to take no for an answer when the cause is just’.861 Page was later the co-author of a 1979 article that declared that police militancy was at a level ‘not seen since the first quarter of this century’. He reported that in NSW, the Association had actually been forced to reign in the most militant tendencies of the rank and file.862 Tom Rippon, Secretary of the Victorian Police Association for much of the 1970s suggested that police militancy during this period reflected the increasing number of young police officers, from a generation that were more questioning and less willing to accept their lot than older police had been.863
The distinct role of the NSW Police Association in the debate is said by Finnane to have originated, in part, from an earlier ban by Commissioner Norm Allan on members of the NSW Police Force speaking to the media. The Police Association
857 Burpo (1971: 11-13). 858 Loader and Mulcahy (2001a: 47-50). 859 Sallmann (1982a: 270). 860 SMH (1986: 12 November at 2). 861 Queensland Police Journal (1977: 4 at 27). 862 Swanton and Page (1979: 398). 863 Rippon (1980). 186
offered an alternative vehicle for expressing the police view.864 This illustrates the broader point, that Police Associations can speak out without the constraints sometimes imposed on the police hierarchy as servants of government.
It was also true that there was considerable police emotion on these issues of law reform.865 Two contributing factors were that a number of the reports had criticised police conduct (particularly Beach) and that police had for so long operated outside the law that the imposition of a tight regulatory framework seemed unthinkable. By leaving police to operate without a credible legal framework, politicians and judges effectively condoned and legitimated the methods chosen by police. Sallmann and Willis highlighted these factors in their review of resistance to the recommendations of the 1970s inquiries.866
Indeed, the mere suggestion of legislative restrictions symbolised a diminution of police legitimacy on the part of the elected government. The vigorous counter- reaction by police owed much to the symbolism involved. It has been argued in the English context that the extensive discretion long enjoyed by police made it a necessity for police to develop strong sub-cultural norms to guide their actions. Once in place, these strong norms were not to be easily ousted.867
Sallmann and Willis also suggested that police resistance to reform was accentuated by the fact that the major proponents for reform had been lawyers.868 Police antagonism towards lawyers appears to have been particularly marked in Victoria, the home State of Sallmann and Willis. In their oral submission to the ALRC, the Victorian Police Association described lawyers as the ‘enemy camp’.869 In the aftermath of the Beach Inquiry, there had been bitter clashes between police and lawyers. A Police Association executive complained of the
864 Finnane (2000a: 14). 865 A point noted by Victorian police historian Robert Haldane in the context of the Beach recommendations (Haldane 1995: 291). 866 Sallmann and Willis (1984: 21, 38-39). 867 Brogden Jefferson and Walklate (1988: 34-35). 868 Sallmann and Willis (1984: 39-40), Sallmann (1986: 201-2). Hall (1986: 201-2) makes the same argument.
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‘vested interests’ of the legal profession, barristers who were ‘parasites’ and government pandering to ‘shyster lawyers’.870
Police/lawyer antipathy does appear to have influenced police reactions to law reform proposals, at least in Victoria, but the ‘police/ lawyer’ divide should not be overstated. The major contribution of lawyers and judges to public debate in the 1960s had been to favour stronger police powers, as in the interventions of Chief Justice Herron, Justice McClemens and Professor Shatwell. The Law Society, representing practising solicitors, demonstrated little interest in the subject. In the debate on the Criminal Investigation Bills, a number of judges and lawyers emerged as key opponents of the Bills.
Police militancy does not in itself explain the non-implementation of the mid- 1970s reform recommendations. The views put by police had other supporters. The broader law and order debate provided a crucial context for the consideration of criminal investigation law reform proposals. In mid-1977, in the midst of the controversies about the Child Welfare (Amendment) Act 1977 and the Criminal Investigation Bill 1977, NSW Justice Minister Ron Mulock had applauded an emerging ‘backlash’ against civil liberties in response to rising crime. The media had, he said, responsibly encouraged a ‘hard line’ attitude and an emphasis on ‘revenge’ and punishment in the criminal justice system.871 The Daily Telegraph endorsed these comments, declaring that the law and ‘trendy academic social opinion’ may have ‘leaned too far in favour of giving a ‘fair go’ to criminals’872
These comments, and the debate about the recommendations of the 1970s inquiries took place against the backdrop of the fundamental ambivalence of Australians towards police and policing.873 There never was a strong ground swell of public opinion to curtail police malpractice through legal reform, nor was there
869 ALRC (1975c: 3). 870 Age (1976: 20 October at 5). 871 SMH (1977: 6 July at 3). 872 DT (1977: 6 July at 14). 873 Sallmann and Willis (1984: 3), Finnane (1987: 103). 188
enormous community confidence in police. Against a backdrop of public ambivalence, forceful interventions - first by the law reform commissioners and then by the police - were able to dramatically swing the course of debate.
Conclusion
In the previous chapter, we charted the ambitions of the law reformers who examined criminal investigation law in a series of reports in the 1970s. To some extent, the strong ambitions of those seeking reform helped generate the resistance that blocked implementation. The Federal Government and Justice Kirby had each been happy to encourage talk of the national implications of the Criminal Investigation report. It was therefore ironic that State police, who feared the report’s recommendations would be a model for State law, led the campaign against the later Federal Bill. Senator Bonner’s Bill applied equally to Federal, State and Territory police, and came under heavy fire in Queensland. The coupling of proposals to prosecute police as well as lay down new criminal investigation rules in the Beach report helped unleash a maelstrom of resistance from Victorian police.
Another obstacle in the path of the reformers was that some of the key disadvantaged groups they hoped to protect through legal rules (juveniles, Aboriginal persons) were responsible for a disproportionate amount of crime. The dual characterisation of these groups as disadvantaged citizens and violent criminals caused plenty of wriggling in political debate. Sections of the community seemed wary that procedural safeguards might hamper efforts to investigate and prosecute crime.
This period saw the decisive entry of police into the police powers debate, first to oppose legal regulation, and later to mount proposals of their own for enhanced powers. Police culture initially contributed to a commitment to the status quo and opposition to externally imposed reform, even where extra powers were part of 189
the package on offer. Extra powers would initially have had little attraction in a context where policing had been relatively unconstrained by law. Notably, State police had made few suggestions for extra powers to the ALRC. Police militancy reflected both these local circumstances, and also a broader international trend towards such militancy.
Police could not have exercised the influence they did without public and political support. The importance of perceptions of the American criminal justice system should not be underestimated. American television, movies and other media carried images of American crimes, and of police hampered by due process requirements that led to the exclusion of evidence that persuasively demonstrated the guilt of an offender.874 Even in the formal public debate such fears were articulated. It is reasonable to surmise that many Australians feared going down the ‘American’ path, and were willing to give considerable weight to police objections to law reform.
In the face of legislative inaction, some head-way was made in the courts towards closer regulation of police conduct and exclusion of unlawfully obtained evidence. The NSW Supreme Court rejected confessions improperly extracted from juveniles, the Northern Territory Supreme Court laid down the Anunga rules, and the High Court emphasised the breath of judicial discretion to exclude unlawfully obtained evidence in Bunning v Cross. As we will see, developments in the common law were not to prove an adequate alternative to legislative reform. Rather, key court decisions would maintain pressure for a new approach to criminal investigation legislation.
By the early 1980s, debate was swinging in the direction of tougher law and order. Increasingly, governments were being called on to demonstrate firmer action against crime. Nowhere was this pressure stronger than in the case of drug trafficking and organised crime.
874 Reiner (2000: 155). 190
5. DRUG WAR
Writing in the English context, Alldridge argues that the ‘most important set of developments in the scope of means of enforcement of the criminal law during the last third of the twentieth century have been in respect of drugs’.875 This chapter examines the impact of the war on drugs and organised crime on criminal investigation law in NSW. The chapter first examines how emerging concerns about trafficking and organised crime in Australia led to sporadic proposals for new criminal investigation powers, and then to a series of Royal Commissions. The chapter looks at the national debate, focusing on these Royal Commissions, about the kinds of laws needed to underpin the investigation of drug trafficking and organised crime. The chapter also examines the symbolic significance of ‘tough’ police powers, drawing on the ‘moral panic’ concept.
The chapter then examines the major forces that influenced the law reform recommendations of the Royal Commissions; and how they went about deciding whether drug crime was ‘special’ and therefore should be subject to special criminal investigation laws. The chapter then examines the debates and reforms that followed on from the recommendations of the Royal Commissions, in both the short and long terms. Particular attention is given to the protracted debate about the need for a ‘crime commission’ for Australia and NSW, including the staunch opposition to this concept from the NSW Police Force and Police Association. Finally, the chapter examines some key realities about the investigation of drug related crime, and how these compare with the assumptions on which the law reform debate has been based.
875 Alldridge (2000: 197). 192
The Coming of War
Between 1945 and 1965, levels of illicit drug use and related crime had stabilised at lower levels than had been experienced in some earlier decades.876 According to Alfred McCoy, a historian of organised crime and drug trafficking, ‘Australia was almost entirely free of serious illicit drug trafficking at this time’.877 In 1960, the NSW Police reported only 8 arrests for offences relating to use or dealings in narcotic drugs.878 In that year, there were only two NSW police officers specifically assigned to drug law enforcement. By 1967, when this number had grown to nine, NSW and Victoria were still the only Australian States to have a drug squad.879
The number of recorded arrests by NSW police for drug related offences rose from 16 in 1965 to 39 in 1966, and then to 58 the following year.880 The membership of the Drug Squad rose from 4 to 7 during 1966, and then to 14 in 1967. Even this number was soon bolstered, by a novel scheme to give all female police officers a 6 month secondment in the squad.881 Recorded rates of drug use and crime rose sooner and more dramatically in Sydney than in the rest of Australia.882 In 1968, Drug Squad chief and future Police Commissioner, Cec Abbott, told a seminar he was ‘fearful’ about future trends in drug use. Recorded arrest rates began to surge.883 From 64 arrests in 1968, the number grew to 165 and then 309 in the next two years. By 1975, the number would pass 600; in 1977 it would pass 1000.884
There were many reasons why Sydney led the emergence of a drug sub-culture in
876 Manderson (1993: 132-33). 877 Woodward (1979: 274). 878 McCoy (1980: 257). 879 Williams (1980: B186), LA v 3/68 at 844 (Mr Jago, Minister for Health, 29 August 1967). 880 Woodward (1979: 274). 881 Abbott (1968: 88). 882 Manderson (1993: 143), Davis and Milte (1970). 883 Abbott (1968: 90). 884 Woodward (1979: 274). 193
Australia, and became the ‘focal point’ of the Australian drug trade.885 Sydney was Australia’s largest and most cosmopolitan city; and it was the major point of entry into Australia, including for American serviceman on recreation leave from the Vietnam war, who helped to introduce the culture of drugs. Sydney’s underworld, with well established networks for vice crime, rackets and corruption further enhanced its natural ‘advantages’ as a beachhead for the growth of the drug trade in Australia.886
The growing incidence of drug crime led to efforts to identify more effective options for drug law enforcement. Until the mid-1970s, NSW politicians focused on matters such as police staffing levels, the need to study enforcement techniques in other jurisdictions, and the maximum penalties available for drug offences.887 There were also some people who saw increased police powers as part of the answer. In 1965, a group within the Herron Committee argued that ‘organised crime’ was already sufficiently advanced to justify ‘drastic changes in the law such as a right to detain for questioning and restriction of the so-called right to silence’.888
In 1968, the NSW Police Service put forward a submission to the Minister for Health, seeking a range of additional powers, including the power to ‘stop, detain and search a drug suspect’ and the power to search premises without warrant in circumstances of urgency relating to a suspected drug offence.889 Neither proposal was taken up by the Askin Government. However, in the debate on the Listening Devices Bill 1969, a number of Liberal Party parliamentarians sought to justify listening device powers by reference to the need to give police ‘the new weaponry, the new armaments’ to overcome the growing problems of organised crime and drug trafficking.890
885 Williams (1980: A331). 886 Manderson (1993: 143), McCoy (1980: chs 5 and 6), Institute of Criminology (1986: 14). 887 See, for example, LA v 3/74 at 721-72 (10 September 1968) and at 815 (11 September 1968), v 3/75 at 1079-80 (19 September 1968), and v 3/76 at 2633 (20 November 1968). 888 Institute of Criminology (1973b: 16). 889 Abbott (1968: 91). 890 LA v 3/81 at 857 (Mr Cameron, 11 September 1969). See also LC v 3/83 at 2656-63 (Sir Asher 194
In 1974, the editor of the Australian and New Zealand Journal of Criminology argued that to combat the menace posed by organised crime, Australian police forces needed more skilled investigators, equipped with greater legal powers including the power to tap telephones.891 The following year, the ALRC’s Criminal Investigation report recommended that Federal police be able to search premises without a warrant in circumstances of urgency, citing the need for such powers ‘in the area of major narcotics law enforcement in particular’.892 By 1977, in the aftermath of the Mitchell report, the ALRC report and the Beach inquiry, senior police were beginning to articulate the case for greater powers. When Police Commissioners met in Melbourne in April 1977, they discussed the need for police to be given new powers to open mail suspected to contain drugs.893
By the late 1970s, concern about drug trafficking and organised crime began to generate a fundamental shift in attitudes to police powers. The Sydney Morning Herald had long been an implacable critic of telephone tapping, but in the late 1970s it began to soften its position. In January 1978, the paper identified the ‘spreading menace of drugs’ as grounds for supporting the use of telephone tapping ‘in the counter-offensive’, subject to suitable safeguards.894 In August, it said it was open to ‘convincing specific arguments’ for the move.895
The question of giving police additional powers to investigate suspected drug crimes came into sharp focus in the context of a series of Royal Commissions into drug trafficking and organised crime. These neatly paralleled the law reform inquiries of the mid-1970s, in generating debate, in giving that debate a national focus, and in blurring the boundaries between Federal and State/ Territory criminal justice issues.
Joel, 18 November 1969) and at 2671 (Hon L A Solomons, 18 November 1969). 891 Batholomew (1974). 892 ALRC (1975a: 96). 893 Age (1977: 20 April at 3). 894 SMH (1978: 26 January at 6).
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The first of the Royal Commissions was the Royal Commission into Organised Crime in Clubs. This was commissioned by the Askin Liberal/Country Party Government in August 1973, following an embarrassing series of conflicting statements by the Premier to Parliament, on the basis of police briefings that first dramatised then denied the infiltration of organised crime into Sydney. Concern about organised crime had been fuelled by press stories of the growing role of the American mafia in Sydney’s club scene. Premier Askin commissioned Justice Moffitt of the NSW Supreme Court to inquire into whether organised criminal groups were seeking to infiltrate NSW clubs, and whether there was any evidence of an official cover-up of such infiltration.896
Justice Moffitt found that organised criminal groups were indeed seeking to infiltrate NSW, but that there was no evidence of official corruption or cover-up. He did not address himself to the adequacy of the legal powers of NSW police, focusing instead on the specific events he had been commissioned to investigate. Indeed, this illustrates the way in which the political climate changed in the second half of the 1970s. By the time of the Royal Commissions that were to follow Moffitt, it was not enough for a government to launch an investigation into particular allegations or incidents. Instead, there would be pressure for governments to throw open their whole approach to law enforcement for review.
Next came the South Australian Royal Commission into the Non-medical Use of Drugs, established by the Dunstan Labor Government in 1976 and chaired by Professor Ronald Sackville. The Commission was established in response to pressure both from left wing Labor Party members, who wanted to relax the approach to cannabis, and from the Liberal Opposition, which argued for a tougher approach to drug law enforcement.897 The terms of reference issued to the Royal Commission required it to marshal evidence about drug use and its effects and the nature of drug supply and abuse in South Australia. It was also instructed
895 SMH (1978: 2 August at 6). 896 Moffitt (1974: 1-9), McCoy (1980: 233-40). 897 Sackville, Hackett and Nies (1979: 2-4), Manderson (1993: 171). 196
to evaluate laws and programs relating to drug use and to recommend any reforms considered appropriate.
The report of the South Australian Royal Commission recommended that greater emphasis should be placed on education and treatment as responses to the drug problem, in place of the overwhelming reliance on law enforcement. Nonetheless, the Royal Commission did devote a dozen pages of its report to suggested reforms to the law of criminal investigation. Its discussion ranged across powers to enter and search premises, the stopping and searching of persons in public places, and electronic surveillance.898
Although South Australia was the first Australian State to establish a Royal Commission into the drug problem, attention soon focused on NSW. Major marijuana plantations were discovered in the State’s south, at Colleambally in 1975 and Euston in 1977. In the town of Griffith and the surrounding Riverina region, stories circulated of the wealth some local farmers were accruing through marijuana cultivation. Meanwhile, the level of drug use in Sydney and elsewhere in the State continued to rise. In early July 1977, sections of the media were calling for an inquiry into the drug trade, and on 8 July it was widely reported that Premier Wran would soon announce a Royal Commission into all aspects of drug use in NSW. Events soon forced the Premier’s hand.
On the evening of 15 July, leading Griffith anti-drugs campaigner and Liberal Party member Donald Mackay went missing outside the Griffith Hotel. Mackay had previously led police to the Colleambally plantation. His disappearance was immediately viewed as a ‘hit’ by local Mafia figures intent on revenge for his efforts to curtail the drug trade. The NSW Government came under intense pressure to establish a Royal Commission, not only because of public concern, but also because the Commonwealth Government was moving to take the matter into its own hands with the establishment of a Federal Royal Commission.
898 Sackville, Hackett and Nies (1979: 1-2, 318-30). 197
On 5 August 1977, the NSW Government appointed Justice Phillip Woodward of the NSW Supreme Court as Royal Commissioner, to inquire into the nature of the drug trade in NSW, the identity of those involved, and as to whether there should be changes to NSW drug laws or their administration. In response to this last term of reference, Justice Woodward was to devote half a dozen chapters of his Report into Drug Trafficking to the evaluation of possible reforms to the law of criminal investigation.899
The establishment of the Woodward Royal Commission was not enough to keep the Federal Government on the sidelines. Through its responsibility for the customs barrier, the Commonwealth was already heavily involved in drug law enforcement. A Royal Commission in NSW would not reassure citizens in other States and Territories that the national Government was taking appropriate steps to protect the nation from the perils of the drug trade. Furthermore, the Australian Federal Police reported to the Federal Government that NSW police were corrupt and untrustworthy, and that intelligence concerning the drug trade should not be handed to a NSW inquiry. It has also been suggested that the Federal Government wished to sink the recommendations of a Senate Committee which had, in 1977, recommended the decriminalisation of cannabis use.
Two months after terms of reference had been issued to the Woodward Royal Commission, the Prime Minister announced a Federal Royal Commission into the drug problem. This was to be chaired by Queensland Supreme Court judge Sir Edward Williams. The four States that did not have a Royal Commission on foot (ie, Victoria, Queensland, Western Australia and Tasmania) each agreed to issue identical terms of reference to Sir Edward Williams, effectively making this a ‘national’ Royal Commission. It was to report upon the nature, methods and severity of the drug trade, its relationship to other forms of crime, and the
899 The account of the events leading to the setting up of the Woodward Royal Commission is drawn from the following sources: Manderson (1993: 173), McCoy (1980: 295-99), Woodward (1979: 1-4), SMH (1979: 8 July at 1), DL (1977: 8 July at 4; 28 July at 4; 5 August at 1),
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adequacy of existing laws and methods for controlling the drug trade. Justice Williams’ report was to contain detailed recommendations for both a Uniform Drug Trafficking Act and a Drugs of Dependence Act, to be enacted by the Commonwealth, each State and the Northern Territory. The proposed Acts were to regulate police powers including to tap telephones, search premises, and stop and search persons and vehicles. Justice Williams’ recommendations were directed equally to NSW as to the other States, despite the fact he held no commission from NSW.900
In 1978, the NSW Joint Parliamentary Committee into Drugs presented a report expressing support for Federal moves to confer telephone tapping powers on certain agencies. It also proposed that Customs officers be given broad powers to search suspected drug smugglers.901 Despite this brief interlude, Royal Commissions remained the favoured vehicle for such inquiries. In June 1981 the Commonwealth announced that it had joined with NSW, Victoria and Queensland to issue terms of reference to a Royal Commission into Drug Trafficking, to be chaired by Justice Donald Stewart of the NSW Supreme Court. This was triggered by the findings of a Victorian coroner concerning the involvement of organised crime figures in the murder of drug couriers Douglas and Isabel Wilson, and the murder of a major witness in a pending drug trial. . The Stewart Royal Commission was directed to investigate specific allegations of organised criminal activity, but also to recommend any necessary ‘legislative or administrative changes’. The Royal Commission was to make a range of recommendations concerning criminal investigation law, most significantly the establishment of a National Crime Commission with extensive, Royal Commission type powers.902
DT (1977: 8 July at 1, 12). 900 The account of the events leading to the setting up of the Williams Royal Commission is drawn from Manderson (1993: 170, 174), McCoy (1980: 298-99) and Williams (1980: chs 1 and 2). 901 NSW Joint Committee on Drugs (1978: 66-68). 902 Stewart (1983: 2-7, 848-51), Age (1980: 10 September at 1), CT (1980: 19 September at 1). Justice Stewart was later to conduct a second Royal Commission, in 1986, to examine allegations that NSW and Victorian police had conducted unlawful telephone intercepts. This second Stewart 199
In 1980, the Commonwealth and Victorian Governments had also jointly commissioned Mr Frank Costigan QC to conduct a Royal Commission into alleged extortion, racketeering and other criminal conduct by the Federated Ship Painters and Dockers Union. Like the other Royal Commissioners except Moffitt, Costigan was directed to recommend any legislative or administrative reforms necessary or desirable in light of the Commission’s factual findings. Costigan did not spend a great deal of time considering the adequacy of police powers. His primary concern was with ‘following the money trail’, the aggressive use of taxation laws, and the confiscation of proceeds of crime. He did, however, argue that police should have the power to summons witnesses.903
One notable spin-off from the Costigan Royal Commission was the public advocacy of sterner measures against organised crime by the counsel assisting the Royal Commission, Douglas Meagher QC. Meagher generated considerable interest and controversy with a series of papers on the topic of ‘organised crime’ that he delivered to a conference in May 1983. Meagher argued that law enforcement lacked the funding, equipment or powers to effectively investigate fraud and other complex crimes. Among the powers he proposed should be given to law enforcement (not necessarily police) were the power to demand the production of documents and to call and question witnesses and suspects, who should have no right to silence.904
The debate surrounding the establishment, deliberations and recommendations of the Royal Commissions, particularly those of Woodward, Williams, Stewart and Costigan, was infused with the notion that law enforcement agencies were engaged in a ‘war’ against organised crime and drug trafficking. A week before the disappearance of Donald Mackay, the Daily Telegraph called for tough new
Royal Commission is discussed in chapter 6. 903 Costigan (1984: v 1 at 1-6; v 2 at 19). 904 Meagher (1983: 57-60, 97-113), Institute of Criminology (1983: 9). 200
laws to combat drug trafficking, as part of an ‘all out war’.905 In its submission to the Woodward Royal Commission, the Festival of Light argued that ‘all out war must be declared on illegal drugs... and every available weapon used for eradication of these drugs from our Australian way of life’.906 The report of the Williams Royal Commission argued that:
the problem of drug abuse contains many elements of a war time situation. Australia is a country striving to defend its people against an undisputed social evil. It is not being over-dramatic to describe the present position as one of national emergency…907
This passage was cited approvingly by the report of Costigan Royal Commission.908 Costigan went to make an even more dire prognosis:
a comparatively small group of people in this community are waging war on it in an organised fashion… we would be deceiving ourselves as a community if we believed that the steps needed to fight this war would not make a major change in the kind of society in which we live.909
In 1980, NSW Police Minister Bill Crabtree even suggested that just by calling for NSW police to be given telecommunications interception powers, he had ‘declared open warfare on drug traffickers in NSW’.910 This is a reminder of the important symbolic role of the police powers debate. Supporting additional powers is a way to express a symbolic commitment to tougher enforcement.
The melodramatic nature of these pronouncements, and the seriousness with which they were taken, points to the existence of a ‘moral panic’ about drug
905 DT (1977: 8 July at 12). 906 Festival of Light (1977: 1). 907 Williams (1980: D87). 908 Costigan (1984: v 5 at 83). 909 Costigan (1984: v 5 at 83).
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trafficking and organised crime. The moral panic phenomenon was first identified by Stanley Cohen, in his 1972 book, Folk Devils and Moral Panics: The Creation of the Mods and Rockers. Cohen examined the response to violence and vandalism by working class youths at an English seaside resort in Easter 1964. Cohen found that the events in question were significantly overdramatised by the media in its portrayal of a ‘day of terror’. The typical behaviour involved was threatening conduct, but the reporting focused on alleged violence and mayhem. The conflicts that did occur were diffuse, but media reports stylised them as a sustained and structured conflict between two groups, the Mods and Rockers.911
Media reporting set in train a reaction that helped to create the problem that was first imagined. Increased police surveillance led to more arrests, apparently confirming the perceptions of rising lawlessness and entrenching greater police/ youth conflict. Youths were also inspired by the reporting to identify themselves as Mods or Rockers.912 Cohen argued that the underlying source of the panic about Mod and Rocker violence was anxiety about rapid social change in England in the 1960s. Youth cultures and conduct offered a tangible target for this anxiety, with the Mods and Rockers taking the roles of scapegoats or ‘folk devils’.913
Subsequent studies have applied and developed the moral panic concept. The 1978 book Policing the Crisis, by Hall and others, is a notable example. This provided an in-depth analysis of the moral panic about mugging in England in 1972-73. Hall and his colleagues show that media, political and state agency discourse treated mugging as a dramatic new phenomenon, whereas the real development was the attaching of the mugging label to a number of long standing categories of interpersonal crime.914 Like Cohen, they point to social and economic changes driving the panic, including post-war Afro-Caribbean
910 NSW Police News (1980: May at 3). 911 Cohen (1972: ch 2). 912 Cohen (1972: ch 4). 913 Cohen (1972: ch 6). 914 Hall, Critcher, Jefferson, Clarke and Roberts (1978: 3-6, 16). 202
immigration, and hence a fixation with the idea of black youths as muggers.915
A panic is rarely baseless. The literature on moral panics does not seek to deny the existence of crime or crime waves. Rather, it highlights the fact that the reaction to crime does not necessarily follow in any direct or obvious sense from the ‘reality’ of crime. Moral panics operate according to additional variables, and illustrate the fact that the reaction to crime is itself deserving of study and analysis.
The response to drug trafficking and organised crime in Australia in the late 1970s and early 1980s can properly be understood, at least in part, as a moral panic. The intense focus on a phenomenon that had been worsening for quite some time, the dire predictions made, and the dramatic response of establishing a series of Royal Commissions, were all hallmarks.916 So was the fixation with an identifiable folk devil, the ‘Mr Bigs’, with the thinly veiled assumptions that these came from South European (especially Italian) immigrant stock. Underlying concerns about the permissiveness of modern society, the waywardness of youth, and the economic prosperity of certain ethnic groups, could be seen in the background.917 Internationally, the trafficking and use of narcotic drugs have commonly been at the centre of moral panics in recent decades.918 Like so many features of the police powers debate in NSW, even the ‘war’ metaphor had its roots elsewhere, in the ‘war’ on heroin addiction undertaken by the Nixon administration in the United States particularly in 1972-73.919
As well as being an appealing dramatic metaphor, the idea of ‘war’ captured an important aspect of the debate surrounding the Royal Commissions and their recommendations. The debate about the Mitchell, Beach, Lucas and ALRC recommendations had largely been a debate about how closely police conduct should be regulated. The debate surrounding the recommendations of the drugs
915 Hall, Critcher, Jefferson, Clarke and Roberts (1978: 20-21, 36, 159-65, 234-25, 244-49, 327- 33). 916 See Manderson (1993: 146). 917 McCoy (1980: 294-308). 918 Goode and Ben-Yehuda (1994: chs 11 and 12).
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and organised crime Royal Commissions, on the other hand, was largely a debate about whether to give additional powers to law enforcement agencies. In a few short years, from the ALRC report in 1975 to the Woodward and Williams reports in 1979 and 1980, the whole character of the debate about the law of criminal investigation had changed. Supporters of ‘tougher’ law enforcement measures moved on to the front foot, and civil libertarians faced a rearguard action.
Shaping the Agenda
As we have seen, police played only a limited role in shaping the agenda of the law reform inquiries prior to 1977. In particular, neither the NSW Police Force nor the NSW Police Association had much input in the framing of the Child Welfare (Amendment) Act 1977 or the ALRC Criminal Investigation report. From 1977, police in NSW and elsewhere adopted a much more pro-active approach, both in the context of the Lucas Inquiry in Queensland and the Norris Committee in Victoria, and also in making submissions on criminal investigation powers to the drug Royal Commissions.
Almost all of the proposals concerning criminal investigation law in the Woodward Royal Commission report were drawn from submissions by the NSW Police Force. As a result, while Woodward’s report addressed 13 proposals to enhance police powers or remove restrictions on the exercise of those powers, the report did not consider a single proposal to curtail police discretion. The ‘issue’ was therefore whether or not to give NSW police new powers, not whether to more closely regulate them. Among the proposals put forward by the NSW Police Force and endorsed by Justice Woodward were that police be empowered to require a person found in possession of drugs to disclose details of his or her supplier; and that they be authorised to engage in telephone tapping.920
919 Silberman (1978: 173-82). 920 Woodward (1979: chs 43-48), SMH (1978: 20 December at 3). 204
The Sackville Royal Commission, despite its reluctance to emphasise law enforcement issues, was drawn into a discussion of criminal investigation powers in light of proposals put forward in submissions, ‘notably that of the South Australian Police Department’. As a result, and despite the generally libertarian approach of that Royal Commission, it considered and endorsed a proposal that South Australian police be allowed 14 days to execute a search warrant (not just one day); and that they be allowed to stop and search a suspect in relation to any offence (not just a narcotic or traffic offence).921
The major reforms considered by the Williams Royal Commission were almost all in the direction of enhancing police powers and discretion, for example, allowing telephone tapping, inspection of postal items, re-entry to premises under warrant for up to a month, and body cavity searches. Not surprisingly, many of these proposals had come from the oral and written submissions of individual police officers or the police forces.922
Submissions to the Stewart Royal Commission were more evenly divided between those from law enforcement agencies, and those from civil liberties organisations and lawyers’ groups. Even here, however, police had ‘got their act together’ and put forward strongly argued proposals for enhanced powers. On the other side of the world, English police were also active at this time in trying to influence the agenda for a Royal Commission. In 1978, the Metropolitan Police Commissioner presented the Royal Commission on Criminal Procedure with a ‘shopping list’ of proposed powers.923
Police initiative was not the only factor at work in the Royal Commissions’ sympathy for enhanced criminal investigation powers. Another significant factor, most explicit in the case of the Woodward Royal Commission, was empathy for police in their task of investigating crime. Justice Woodward spoke of having
921 Sackville (1978: 318-30). 922 Williams (1980: B202-30, F29-33), CT (1977: 18 November at 7), SMH (1978: 7 February at 1).
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experienced the ‘frustrations of investigation’. He complained that his Royal Commission had no power to intercept telecommunications, to carry out surveillance, to employ undercover agents or to ‘employ most of the measures that law enforcement bodies around the world use as the central techniques of investigation’. Justice Woodward requested the NSW Government to legislate to give him additional powers to enter and search premises, but was refused. In such circumstances, Justice Woodward was naturally disposed to feel some empathy for the arguments in favour of enhanced law enforcement powers.924 For example, he felt that police (possibly via a ‘grand jury’) should be able to subpoena witnesses and require the production of documents, given the importance of these powers to his own inquiries. He warned that police could make little headway ‘without the powers that were vested in me’.925
Frank Costigan QC was also concerned at the inadequacy of his powers as Royal Commissioner. He requested the power to issue his own search warrants, and stronger powers and penalties to compel witnesses to testify before the Commission.926 The power to summons and questions witnesses, something his Royal Commission could do, was an ‘essential power’. Costigan later said:
I believe - or so I have been told - that my Commission has achieved a great deal… Those abilities were based firstly on the ability to require the production of documents and the answering of questions on oath; and secondly, on the ability to process, manipulate, collate and analyse that material… a successful Crime Commission would require the same powers.927
A further important influence on the agenda and reasoning of a number of the
923 Baldwin and Kinsey (1982: 23). 924 Woodward (1979: 1603), NMH (1982: 10 August at 6). 925 Woodward (1979: 1643-54). 926 Costigan (1984: v 1, 140-42). 927 Costigan (1984: v 2, 19), NCC Conference (1983: 55). 206
Royal Commissions was their ‘federal’ nature. The Royal Commissions were ‘federal’ in three senses. Firstly, the Williams, Stewart and Costigan Royal Commissions were jointly commissioned by the Commonwealth and one or more States. It was natural that these Royal Commissions would assess the law of criminal investigation in a number of jurisdictions, and consider reforms as part of an integrated package relevant to all of the commissioning jurisdictions.
Secondly, the concern of most of the Royal Commissions with telecommunications interception powers forced them to cross jurisdictional lines. The Commonwealth’s constitutional responsibility for the telecommunications system meant that interception powers could not be conferred on State police until the Commonwealth repealed the provisions under which it banned such interceptions. Because States held the political and administrative responsibility for their own police forces, State legislation would also be required.928
The third ‘federal’ aspect of the Royal Commissions was the fact, emphasised by each of the Royal Commissioners, that the problems of drug trafficking and organised crime cut across jurisdictional boundaries. This encouraged a number of the Royal Commissions to recommend amendments to the laws of jurisdictions from whom they held no commission. Justice Williams, who held no commission from NSW, held sittings in Sydney, took evidence from NSW police, and made numerous recommendations for reforms to NSW law.929 Conversely, Justices Sackville and Woodward each recommended amendments to Commonwealth law to allow State police to intercept telecommunications.930 The NSW Joint Parliamentary Committee on Drugs strayed even further into Commonwealth territory, recommending that the Commonwealth give its own Customs officers greater powers to search drug smugglers.931
928 See section 5 of the Telephonic Communications (Interception) Act 1960 (repealed in 1979) and section 7 of the Telecommunications (Interception) Act 1979 (prior to its amendment by the Telecommunications Interception (Amendment) Act 1987). 929 Williams (1980: A14). 930 Woodward (1979: 1754), Sackville, Hackett and Nies (1979: 328).
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The ‘federal’ perspective of the Royal Commissions influenced their reasoning in some interesting ways. The powers of Federal and State police came in for direct comparison. Justice Woodward argued that:
as the majority of investigations into drug trafficking in Australia are done by State Police… it would in my view be wrong for the power to intercept telephone conversations and other telecommunications to remain exclusively in the Commonwealth...932
Justice Williams also argued that any powers available to Federal police should also be available to State police, as the ‘backbone’ of drug law enforcement.933 Indeed, Justice Williams called for uniform national criminal investigation laws, arguing that the ‘effectiveness of the effort of the State police forces’ would ‘be greatly enhanced if the laws which they enforce are as uniform as the requirements of individual State and Territories permit’. Uniformity would, he said, encourage greater co-operation between Australian police forces.934 The Sackville Royal Commission also recommended greater uniformity, for listening device and telecommunications interception laws. To that end, it proposed that South Australian law be brought into line with Commonwealth law, most notably in requiring judicial authorisation for the use of listening devices.935
The Stewart Royal Commission was to push even further in seeking a national approach. Justice Stewart recommended the establishment of a National Crimes Commission, under the law of the Commonwealth and each State and Territory. This was the final stage in the evolution of an increasingly ‘federal’ and inter- jurisdictional outlook on the part of the Royal Commissions. Woodward sought proportionality between the Commonwealth and the States. Sackville sought greater uniformity. Williams sought complete uniformity. Stewart sought to
931 NSW Joint Committee on Drugs (1978: 68). 932 Woodward (1979: 1755). 933 Williams (1980: B226). 934 Williams (1980: B214, B226-28, D26-34). 935 Sackville, Hackett and Nies (1979: 328). 208
overcome the notion of separate Federal and State jurisdictions all together, in the establishment of a National Crimes Commission.936
Among the sources to which the Royal Commissioners turned in identifying and evaluating reform proposals were the law reform reports of the mid-1970s, most notably those of the Mitchell Committee, the ALRC and the Lucas Committee. Not surprisingly, the Sackville Royal Commission adopted a number of Mitchell Committee recommendations, for example that senior police should have no power to issue search warrants, but that police should have power to stop and search any person in a public place suspected to possess an unlawful item.937
A number of ALRC Criminal Investigation report recommendations found favour with the Royal Commissioners. Among these were that ‘general’ search warrants be abolished,938 that police be permitted to search premises without a warrant in urgent circumstances,939 that search warrants be available by telephone,940 and that police be empowered to intercept telecommunications under a judicially issued warrant.941 Another important ALRC recommendation that found favour with the Stewart Royal Commission was that police be required to tape interrogations where practicable.942
936 Stewart (1983: 787-88). 937 Sackville, Hackett and Nies (1979: 319-22). 938 Abolition of general search warrants was endorsed by the Sackville Royal Commission (Sackville, Hackett and Nies 1979: 321) and the Woodward Royal Commission (Woodward 1979: 1708-9). The Williams Royal Commission (Williams 1980: F28) recommended that Customs officers should retain their general search warrant powers, but cited the reasoning of the ALRC in recommending that such powers should not be conferred on police. 939 Authorisation of urgent search without warrant was endorsed by the Sackville Royal Commission (Sackville, Hackett and Nies 1979: 320) and the Woodward Royal Commission (Woodward 1979: 1721). 940 Telephone warrants were endorsed by the Sackville Royal Commission (Sackville, Hackett and Nies 1979: 320) and the Woodward Royal Commission (Woodward 1979: 1726). Although the Williams Royal Commission recommended that search warrants be available by telephone, it made no reference to the recommendations of the ALRC (Woodward 1980: F29). 941 Telecommunications interception powers were endorsed by the Sackville Royal Commission (Sackville, Hackett and Nies 1979: 328), the Williams Royal Commission (Williams 1980: C389, F17) and the Stewart Royal Commission (1983: 658). Although the Woodward Royal Commission recommended that NSW police be authorised to intercept telecommunications subject to a judicial warrant, its report made no reference to the ALRC recommendations (Woodward 1979: 1752-55).
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The Stewart Royal Commission placed particular emphasis on the findings of police misconduct by the Lucas Committee, which it used to reinforce the significance of its own criticisms of police. Stewart made a number of findings against police, including that they had stolen drugs and money from drug users, planted incriminating material on suspects, and fabricated confessions. He suggested that this was particularly disturbing, because they showed such conduct persisting despite the revelations of the Lucas Committee and like inquiries.943
Stewart’s findings represented the most damning criticism of police made by any of the Royal Commissions. Not surprisingly, he also made the most extensive recommendations for more strict regulation of police. For example, he recommended that interactions between police and drug suspects should have to be audio or video taped, or occur with a magistrate present.944
Another source of ideas for the Royal Commissions were foreign laws and precedents. In a break with past debates, attention focused more on the United States than Britain, perhaps because drugs and organised crime more readily brought the former to mind. The Royal Commissions drew on an assortment of American authorities in support of conferring telephone tapping powers on (State) police. Justice Woodward cited a 1968 report by a committee of the American Bar Association and a 1963 report by the President’s Advisory Commission on Narcotics and Drug Abuse.945 Justice Williams referred the report of a 1976 National Commission relating to wire tap laws.946 Justice Stewart drew on the recommendations of the 1967 Task Force on Organised Crime.947
The views of individual Americans were also cited in support of telephone tapping. One was William Webster, the Director of the Federal Bureau of Investigation, who had declared that a police force without telephone tapping powers may as
942 Stewart (1983: 597). 943 Stewart (1983: 418-420, 604-5). 944 Stewart (1983: 598, 614-18). 945 Woodward (1979: 1752, 1757). 946 Williams (1980: C387).
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well forget about investigating organised crime.948 Mr Webster made a personal intervention in the debate in 1986, when he made comments along these lines to reporters at a Melbourne press conference.949 The Australian Council for Civil Liberties sought to turn Webster’s advocacy of the ‘American model’ to their advantage, by highlighting the strong safeguards applicable to telephone tapping in the United States. These included a statutory entitlement to damages for the subjects of unlawful tapping, heavy penalties for unlawful tapping, and a bar on the admission of evidence obtained by unlawful tapping.950
Premier Wran, in a public rebuke of William Webster’s intervention, directly challenged the legitimacy of the American precedent for extending powers:
The Mafia’s riding high there, the drug problem is greater than anywhere else in the world and the crime rate is at levels at which the mind boggles. So we really don’t need the gentleman from the FBI to tell us that every Australian’s phone ought to be tapped.951
Ironically, Wran was soon to reverse his position on telephone tapping. Commonwealth and NSW legislation to authorise tapping would be enacted the following year. Wran’s capitulation was indicative of declining resistance during the 1980s to the enactment of enhanced police powers. In large part, this reflected widespread acceptance that drug trafficking and organised crime posed a challenge to law enforcement of a unique and unprecedented kind.
Is Drug Crime Special?
947 Stewart (1983: 658). 948 NMH (1981: 3 April at 5), SMH (1981: 3 April at 3). 949 SMH (1986: 29 January at 5). 950 Institute of Criminology (1986: 72), Schurr (1986), SMH (1986: 31 January at 8). 951 SMH (1986: 1 February at 3). 211
One of the key questions to face each of the Royal Commissioners was whether police required special powers, above and beyond those available for investigating crime generally, in order to combat drug trafficking and/ or organised crime. The Sackville Royal Commission argued that special criminal investigation laws should not be enacted to deal with drug trafficking: ‘powers of criminal investigation in drug cases should be those available to the police generally and... should be contained in legislation dealing with such matters, rather than the legislation creating drug related offences’.952
Justice Woodward was more equivocal. He conceded that some other crimes such as personal violence ‘were just as obnoxious’ as drug trafficking. He also suggested that additional drug law enforcement powers might lead to ‘imbalance’ in the treatment of drug crimes as against other serious offences. Despite this, however, he felt it his duty to focus only on the needs of drug law enforcement. He also accepted that drug law enforcement did pose some unique challenges for the police, as we shall see below.953 Justice Stewart was also equivocal as to whether special police powers were required to deal with drug trafficking and organised crime. On the one hand, he favoured an independent Crime Commission with special powers; on the other, he was ‘not persuaded’ that increased powers were necessary for traditional police forces.954
Justice Williams, unlike the other Royal Commissioners, wholeheartedly endorsed the idea that the investigation of drug trafficking posed special challenges for police, and should be regulated by different laws to those generally applicable to the investigation of crime. Williams proposed that the Commonwealth and each State and Territory should enact a Uniform Drug Trafficking Act, containing special powers directed against higher echelon drug traffickers. The Uniform Drug Trafficking Act would include powers to intercept telecommunications and use listening devices, and a provision allowing police to repeatedly re-execute a search
952 Sackville, Hackett and Nies (1979: 318-19). 953 Woodward (1979: 1657-59, 1770-71, 1825-26). 954 Stewart (1983: 623). 212
warrant for up to a month. Police powers to investigate street-level dealers and drug users would be more circumscribed, and would be contained in a Drugs of Dependence Act.955
Justice Williams put forward a range of arguments to justify the enactment of special criminal investigation laws to deal with drug trafficking. Chief among these was the claim that, in comparison to other forms of crime, drug trafficking was particularly harmful:
The impact that illegal drug trafficking is having on Australia and, even more dramatically, the potential that it has to affect Australia has moved the Commission to recommend greater powers for police in aid of their efforts to detect drug traffickers.956
By and large, however, arguments for special drug law enforcement powers were based on the characteristics of drug trafficking rather than its seriousness. One special characteristic attributed to drug trafficking was that it was ‘essentially the industry of organisations’.957 Trafficking organisations were said to be hierarchical, with local dealers at the bottom, area dealers and couriers further up, and a series of intermediaries above them, leading ultimately to senior organisers and at the apex, ‘Mr Big’. Under the traditional policing model, it was argued, police would only be able to question and search users, local dealers and couriers. They would lack evidence to incriminate the senior organisers, who were remote from the delivery of drugs. Accordingly, it was argued that unless ‘the communications of the top men’ could be ‘intercepted or overheard’ enforcement would remain ‘largely confined to the lower levels’.958 Both the Woodward and Williams Royal took this view.959 In similar vein, Douglas Meagher QC, counsel assisting the Costigan Royal Commissions, argued that policing agencies needed
955 Williams (1980: D26-27, F20-33, F106-7). 956 Williams (1980: B228). 957 Woodward (1979: 1657). 958 Woodward (1979: 1752). 959 Woodward (1979: 1749), Williams (1980: C389). 213
to be able to summons witnesses and subpoena documents to get at the ‘higher echelons’ of organised crime.960
The imagery of stable, multi-layered hierarchies does not fit with the findings of law enforcement agencies in the field. In 1996, the Australian Bureau of Criminal Intelligence forwarded a questionnaire to Australian law enforcement agencies, seeking details of the typical structure of drug trafficking organisations.
The Bureau learned that:
very little of a generic nature could be supplied. Agencies reported criminal structures formed by various social elements such as family connections, ethnicity or age groups. The majority reported resource allocation and management as being ad hoc. Methods of operation were identified as being too diverse to draw any substantial conclusions. The Western Australian Police… reported that most organisations were entrepreneurial groups formed through opportunity, that methods of operation were not planned…. today’s seller may be tomorrow’s buyer.961
The Royal Commissions also considered drug trafficking to be special in other ways. One was the ease with which drugs could be transported, concealed and disposed, given the high value of a small quantity of narcotics. Traditional limitations on search and seizure powers were said to give persons in possession of drugs too many opportunities to conceal or dispose of those drugs. Justice Woodward, for example, accepted that suspects frequently disposed of drugs while police were waiting for a warrant, often down the toilet. To overcome this problem, Woodward proposed legislation to allow police to seek a search warrant by telephone or radio, and to search premises without a warrant in urgent cases.962
960 Meagher (1983: 57-60, 97-113). 961 ABCI (1996: 14). 962 Woodward (1979: 1710-31). 214
Justice Williams’ made a raft of proposals directed to addressing the ease with which drugs could be moved or concealed. Postal officials should be able to open mail suspected to contain drugs. Body cavities should be able to be searched under warrant. Police should be able to search any person found on premises entered under warrant. A search warrant should extend to unnamed premises where there was reason to believe the drugs had been moved there from premises named in the warrant. Police should be able to re-enter premises named in a warrant at any time within a month of the issue of the warrant.963
Another respect in which drug crime was said to be unusual was the complicity of the ‘victims’ in the crime. Justice Woodward noted this point, in discussing the proposed abrogation of the right to silence: ‘the only parties who can give useful evidence are themselves implicated in the offence’.964 He recommended that to overcome the reluctance of drug users to ‘cut off their source of supply’ by disclosing details of a supplier, such non-disclosure should be an offence.965
In some cases, drug law enforcement was said to be ‘special’ in ways justifying additional regulation of police conduct rather than extra powers. For example, Justice Williams recommended, in light of the large profits generated by the drug trade, and the resulting risk of crime and corruption on the part of the police, that a ‘rigid system of controls should be applied and enforced to account for drugs, money, and other property seized or acquired by police’.966
Collectively, the Woodward, Williams and Stewart Royal Commissions recommended a substantial overhaul of the powers of NSW police to investigate drug trafficking and organised crime. It then fell to governments to decide whether to bring forth legislation to implement these proposals.
963 Williams (1980: C379, F29-32). 964 Woodward (1979: 1765). 965 Woodward (1979: 1812-26).
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The Battle is Joined
In the first two years of the Wran Labor Government in NSW, Attorney-General Frank Walker was an advocate of the decriminalisation of marijuana use,967 a measure with broader support within the Government.968 However, the moral panic in the aftermath of the disappearance of Donald Mackay ‘strengthened the hand of those who wanted to legislate heavily in [relation to] drugs’.969 The association of the Wran Government with a ‘soft’ attitude to drugs came to be seen as a distinct political liability. From this point on, Wran and his Ministers would be under constant pressure to escape the permissive tag and to demonstrate that they were in fact ‘tough on drugs’.970 Premier Wran responded to the report of the Woodward Royal Commission by promising firm action against drug traffickers and by declaring that the Government would ‘certainly’ move to increase police powers.971
Wran’s promise of tough measures was in keeping with the rhetoric, if not the reality, of the Woodward Royal Commission report. The report castigated civil libertarians as being opposed to any ‘genuine and realistic effort’ to deal with the drug problem as an ‘intrusion into a so-called civil liberty’. He also warned that civil libertarian opposition to reform would be ‘noted with some satisfaction’ by those engaged in drug crime.972 Justice Woodward warmed to this theme after handing down his report, alleging that civil liberties groups were making the investigation of drug crimes difficult. 973 He also accused civil libertarians of being ‘more concerned with the alleged infringement of civil liberties than with the liberty of the subject to live without interference from... criminals’.974
966 Williams (1980: B239, see also B207-9, 212-13, B231). 967 DL (1977: 22 July at 4), CWD (1977: 6 August at 6). 968 Manderson (1993: 169-70). 969 Frank Walker Interview, 18 June 1997. 970 Manderson (1993: 169-70), SMH (1977: 29 April at 8). 971 SMH (1979: 7 November at 1). 972 Woodward (1979: 1658). 973 SMH (1980: 25 July at 3).
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Ironically, however, civil libertarians and others critical of police could draw plenty of ammunition from the reports of the Royal Commissions. Justices Woodward, Williams and Stewart had all found fault with the performance of police. Justice Woodward was the mildest in his criticisms, yet even he found ‘significant elements of waste, redundancy and misdirected effort’ in Federal and State police efforts against the drug trade.975 Too much time had been spent ‘arresting street offenders (and inflating statistics)’ rather than investigating higher level traffickers.976 There had also been ‘counter-productive rivalries and wasteful competitiveness between law enforcement agencies.977
The Williams Royal Commission made similar findings in relation to Australian police forces generally, and also reported more alarming claims against police, relating to the fabrication of evidence, the roughing up of suspects, the theft of their property, and the retention of seized drugs and money for personal gain. Williams concluded that police corruption was ‘a grave problem demanding strong action’.978
The Stewart Royal Commission was the most scathing of the three. Justice Stewart reported that he had ‘strong evidence that law enforcement officers are not infrequently guilty of corrupt conduct at the time of drug raids’. There had been ‘many occasions when law enforcement officers have planted incriminating material, particularly drugs, on persons who have been charged as a result of the planting of this material’. The planting of evidence and the fabrication of confessions were ‘common’ in some areas.979
In light of these findings, Justice Stewart had made the radical proposal that any statement made by a suspect under police questioning should be strictly inadmissible unless the suspect had first been before a magistrate who would ask
974 Australian (1980: 1 August at 3). 975 Woodward (1979: 1620). 976 Woodward (1979: 1604). 977 Woodward (1979: 1622). 978 Williams (1980: B207-9, B225).
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the suspect to report any misbehaviour by police. Police would also be required to identify items seized from the suspect, who could challenge their list. The suspect could then only be questioned if this was video recorded, audio recorded, or conducted in the magistrate’s presence.980
Thus critics of excessive law enforcement discretion were not about to accept enhanced law enforcement powers lightly. One of the test cases was a proposal put by Justice Woodward to allow police to search premises without warrant in emergency circumstances in relation to a suspected drug offence. Under the proposal, the searching officer would have to prepare a statutory declaration setting out the justification for the search which would be forwarded to the Ombudsman. As a further caveat, Justice Woodward suggested that the power might be unnecessary if search warrants were available over the telephone or by two-way radio.981
On 3 December 1980, the Police Minister secured Cabinet approval for legislation to allow police to search premises without a warrant in circumstances of urgency. The then Attorney-General Frank Walker recalls the Police Force fighting long and hard for this power, and indeed for more radical options including for senior police to be the issuers of all search warrants.982 Contrary to Justice Woodward’s recommendation, the Government proposed that the searching officer’s statutory declaration would go to a magistrate, not the Ombudsman. The ‘search without warrant’ proposal was put forward as the centrepiece of the Government’s response to Woodward’s report. The proposal received the immediate support of the NSW Police Force and the State Opposition. Support also came from the Festival of Light and the Secretary of the NSW Labor Council. Bill Clifford, Director of the Australian Institute of Criminology said that ‘It’s a question of whether or not one supports the police. It’s safer to trust them’.983
979 Stewart (1983: 419-20). 980 Stewart (1983: 614-17). 981 Woodward (1979: 1721-22). 982 Frank Walker Interview, 18 June 1997. 983 See LA v 3/159 at 3952 (Premier Wran, 24 February 1981), SMH (1980: 4 December at 3), 218
Not everyone agreed. A number of Ministers, including Attorney-General Frank Walker, had opposed the measure in Cabinet. There was also criticism in the press. The Newcastle Morning Herald described search without warrant as ‘thoroughly undesirable’. The Sydney Morning Herald also expressed ‘grave concern’. The Council for Civil Liberties suggested that the proposed checks on police discretion were illusory and that the power was open to serious abuse.984
Within a few days, the Criminal Law Committee of the Law Society came out against the proposal, along with the NSW Society of Labor Lawyers, which pressed its concerns with Labor Party Branches, in an attempt to put pressure on Cabinet to reverse its decision.985 Motions opposing warrantless searches, were subsequently endorsed by Labor Party branches in Annandale, Bega Valley, Earlwood, Hornsby, Katoomba, Leeton, Manly, North Rocks, Orange, Randwick North, the Southern Highlands and Summer Hill.986 In the face of this concerted opposition to its proposal, the Government offered a compromise. The power to search without warrant would be subject to a ‘sunset’ clause, and so be automatically repealed after 2 years. Most critics were not satisfied.987
In February 1981, Premier Wran told reporters that ‘a lot of us are having second thoughts’ about giving police the search without warrant power. A few days later, Premier Wran announced to the Parliament that Cabinet had decided to abandon the proposal, in light of the hostile reaction to the proposal by ‘the public and by reputable organisations’.988 This was one of the most notable victories scored by civil libertarians during the last 30 years of debate about criminal investigation law in NSW.
NMH (1980: 4 December at 4), National Times (1981: 22 February at 8). 984 NMH (1979: 7 November at 2; 1980: 4 December at 2), SMH (1980: 4 December at 3; 8 December at 6). 985 NMH (1980: 22 December at 2), NSW Police News (1981: June at 3), National Times (1981: 22 February at 8). 986 ‘Legal and Constitutional Rules Committee Recommendations 1967-86’ (ALP Archives Box ML MSS 5095/511 No 2196). 987 NMH (1980: 22 December at 2), SMH (1981: 24 February at 2). 988 LA v 3/159 at 3952 (Premier Wran, 24 February 1981), SMH (1981: 24 February at 2). 219
The Police Association wrote to the Premier in April, protesting the abandonment of warrantless searches. In an effort to mollify Association members, the Premier offered his assurance of the ‘constant review and appropriate provision of powers for police in dealing with crime relating to drug trafficking’.989 In fact, the Government had already secured the enactment of some of Justice Woodward’s other ‘powers’ proposals.
The most controversial of these amendments had authorised police to obtain search warrants by telephone. The Council for Civil Liberties, the Law Society’s Criminal Law Committee and a number of legal academics opposed this measure. Fears were expressed that without the objective record of a written warrant, police might search under false pretences. In other cases, it was feared, citizens might violently resist a lawful search, for want of written authority.990 Telephone warrants were provided for under the Poisons (Amendment) Act 1981, in relation to suspected drug offences, subject to a requirement that both the magistrate and police officer record relevant details concerning the issue of the warrant.991 The NSW Police took some time to use their new power, making no application under the ‘telephone warrant’ provision in the year after it was enacted.992
The Poisons (Amendment) Act 1981 implemented some other Woodward recommendations. The rule that only those police named in a search warrant could execute the warrant was removed in relation to suspected drug offences. The amendments also made it clear that search warrants could be executed at night as well as by day. Stop and search powers available in relation to suspected drug offences were clarified.993
989 NSW Police News (1981: July at 58). 990 Farrier and Weisbrot (1982), Ramage (1981), LA v 3/163 at 6731 (Mr Dowd, Shadow Attorney-General, 11 May 1981). 991 Schedule 1(10) to the Poisons (Amendment) Act 1981 inserting section 43A in the Poisons Act 1966. 992 Privacy Committee (1983: 63). 993 Schedule 1(9) to the Poisons (Amendment) Act 1981 amending section 43 of the Poisons Act
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The Parliamentary debate on the Poisons (Amendment) Bill 1981 was most notable for the unsuccessful efforts by the Opposition to take the high ground both as warriors in the fight against crime and as defenders of civil liberties. A week before the debate on the Bill, Opposition Leader John Mason alleged that the State Government was ‘incapable of smashing organised drug trafficking’. He also argued that the ‘campaign against drug trafficking would be more effective if police were given greater powers’.994 In Parliament, shadow Attorney-General John Dowd said the Opposition wanted police to ‘have every possible power to combat organised crime’. Yet in the same debate, Dowd criticised the Bill for its ‘draconian powers’, ‘potential for abuse’ and ‘power police should not have’. Dowd gave some insight into the reason for these irreconcilable stances when he complained that ‘the Government… will cynically make political capital if the Opposition… tries to reduce the powers that have been recommended’.995
In return, Government members almost flaunted their immunity from Opposition criticisms that they were being too draconian, reminding the Opposition of its previous complaints that the Wran Government was ‘soft on drugs’.996 The political benefits of being tough on crime would be something that Labor would seek again. Yet although the Wran Government was happy to be seen as being ‘tough on drugs’, its ‘police powers agenda’ in response to the recommendations of the Woodward, Williams and Stewart Royal Commissions was essentially limited to the search warrant amendments outlined above. There were no significant amendments to other powers, and not even much public lobbying of the Commonwealth to give telecommunications interception powers to State Police. As late as 1986 Premier Wran suggested that NSW might not enact complementary legislation, even if the Commonwealth opened the way for NSW police to tap telephones.997 Wran’s caution on telephone tapping was shared by
1966; and schedule 1(10) inserting section 43B in the Poisons Act 1966. 994 DM (1981: 6 May at 27). 995 LA v 3/163 at 6728-35 (11 May 1981). 996 LA v 3/163 at 6740 (Mr Stewart, 11 May 1981) and LC v 3/163 at 6861 (Hon J Hallam, 12 May 1981). 997 SMH (1986: 1 February at 3). 221
Frank Walker, his Attorney-General from 1976 to 1982.998
State Police Commissioners were left to campaign for these powers. At their 1981 annual conference, Australia’s Police Commissioners formally announced that they would band together to lobby the Federal Government to bring about this reform.999 A number of Police Ministers, including Bob Crabtree from NSW joined these calls.1000 In the coming years, a succession of NSW Police Commissioners, from Cec Abbott to John Avery, were to publicly lobby for telephone tapping powers.1001
In April 1985, the Special Premiers’ Conference on Drugs, involving the Commonwealth and each State, agreed that State police should be given the power to intercept telephones.1002 An opinion poll conducted the following month found only 38% support, among those polled in NSW, for allowing police to tap telephones in relation to all offences, but 65% support for allowing police to tap telephones in relation to ‘drug-related crimes’. Similar levels of support were found nationwide.1003 Despite this, it took a further Royal Commission, a year of negotiations and two more years of administrative fine tuning before NSW police would be able to lawfully tap telephones.
Why this long delay? One source was Commonwealth mistrust. Sections of the Federal police and bureaucracy had little regard for the integrity and professionalism of State police and were reluctant to see them armed with stronger powers. The Australian Federal Police also had an incentive to retain their pre- eminent role in this field, to maintain an ‘edge’ in the competitive world of drug law enforcement. While AFP Commissioner Colin Woods ostensibly joined his State counter-parts in calling for State police to gain access to telecommunications
998 NMH (1978: 1 August at 3), SMH (1978: 2 August at 6). 999 NSW Police News (1981: April at 3), SMH (1981: 3 April at 3), NMH (1981: 3 April at 5). 1000 NSW Police News (1980: May at 3; 1981: December at 7). 1001 SMH (1985: 2 August at 1). 1002 SMH (1986: 8 April at 4). 1003 SMH (1985: 24 June at 2). 222
interception powers, 1004 he later argued that all monitoring of criminal communications should be ‘controlled by a central agency’, namely his.1005
Other Royal Commission proposals concerning drug crime investigation powers received a mixed reception in NSW. Justice Woodward’s proposal that a person found in possession of narcotics be required to disclose details of his or her supplier was not taken up. Nor was Justice Williams’ proposals to allow a suspect to be detained for up to 3 days for the purposes of a body cavity search, until 2001 when a comparable proposal was enacted in the Police Powers (Internally Concealed Drugs) Act 2001. Justice Williams’ proposal for a uniform Drug Trafficking Act attracted only limited support and was not implemented. Justice Stewart’s proposals to require the recording of confessions were not taken up for many years.
The non-implementation of some of the more radical ‘powers’ reforms reflects, in part, the important influence of the NSW Attorney-General’s Department as a mediator of police proposals. It is not an agency that generally becomes involved in public debate, and nor is its role often mentioned in public debate. Yet Frank Walker recalls that in 1976 he:
inherited an Attorney General’s Department that was quite powerful in itself. Most legal issues got sorted out before they got to Cabinet. There had been a long tradition and even the Pat Hills and the Kevin Stewarts of this world1006 sort of accepted that the law officers… were almost like holy writ and so a great many attempts by the police in particular to change things… foundered on the reef of the Attorney General’s Department, not even getting through to a Cabinet Minute stage or they knocked them out early in the piece… Minutes of course are circulated to departments and they’re
1004 NSW Police News (1981: April at 3). 1005 NSW Police News (1981: June at 3). 1006 ie, right wing/ socially conservative Labor politicians. 223
commented on and they were debated and bureaucratic committees occur long before the thing ever gets into a Cabinet situation, and the only time that those sorts of issues ever got through another portfolio is where you had a Minister with a big bee in his bonnet and was determined to take it on.1007
On one level, then, the Royal Commissions exerted only limited influence on the law of criminal investigation in NSW. However, like the law reform reports and inquiries of the mid-1970s, the Royal Commissions were to exert a lasting influence on the debate about police powers of criminal investigation in NSW.
Continuing Influences
The special needs of drug law enforcement continued to exercise the minds of those who took an interest in criminal investigation powers in the years after the Royal Commissions. When the Listening Devices Act 1984 was enacted to restrict the use of listening devices by police, it contained two exceptions directed at serious narcotics offences. Under section 5, police were authorised to use a listening device without a warrant where there was an urgent need to use the device to investigate a serious narcotics offence.1008 Under section 13, evidence obtained from unlawful use of a listening device was admissible at the discretion of a court in proceedings for a ‘serious narcotics offence’, contrary to the general rule that such evidence was inadmissible.
During the debate on the Search Warrants Bill 1985, the needs of drug law enforcement were repeatedly invoked. While shadow Attorney-General John Dowd argued that a suspect should generally only be searched by a police officer of the suspect’s gender, he felt this requirement should not apply if the person was
1007 Frank Walker Interview, 18 June 1997. 1008 Imminent threats of violence and property damage were the only other cases in which listening devices could be used without a warrant. 224
to be searched for drugs.1009 There was unanimous support for a provision in the Search Warrants Bill that extended the facility for telephone search warrants to all indictable offences, but every example of the need for telephone warrants that was put forward in debate related to drug law enforcement.1010 Opposition members also used the debate to champion three of the recommendations of the Williams Royal Commission. The Hon Adrian Solomons called for legislation to provide for compensation where property was damaged in the course of a search, while the Hon John Hannaford argued for legislation to ensure proper control of seized drugs, and to authorise and regulate body cavity searches.1011 Speaking for the Government, the Hon Barrie Unsworth responded that compensation was a matter for civil litigation and executive discretion. As for control of seized drugs and body cavity searches, the Government would ‘monitor the operations of the legislation’.1012
Two years later, in 1987, Justice Williams’ proposal for uniform Commonwealth and State drug trafficking laws received belated support when Liberal Party Opposition Leader Nick Greiner described such legislation as a ‘pressing need’.1013 However, this was not taken up when Greiner was elected to office.
The Williams and Stewart recommendations for tighter control of seized drugs were followed by a long and controversial debate on this topic in NSW. The NSW Police Force had painted a rosy picture of its drug security procedures in response to an inquiry from the Williams Royal Commission: seized drugs were taken to a police station, and counted or weighed, in the presence of the suspect where possible. They were then locked in a secure place, regularly checked, and ultimately destroyed after the completion of any legal proceedings.1014
1009 LA v 3/184 at 4357 (6 March 1985). 1010 LA v 3/184 at 4357 (Mr Dowd, 6 March 1985) and at 4360 (Mr Gabb, 6 March 1985). LC v 3/184 at 4673 (Hon Adrian Solomons, 20 March 1985). 1011 LC v 3/184 at 4683 (Hon Adrian Solomons, 20 March 1985) and at 4689-96 (Hon John Hannaford, 20 March 1985). 1012 LC v 3/184 at 4696-97 (20 March 1985). 1013 Greiner (1987).
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Justice Williams was not entirely reassured, noting a ‘common complaint’ against drug squads was ‘that drugs subsequently reappeared on the market’. He recommended that a ‘rigid system of controls should be applied and enforced to account for drugs, money and other property seized or acquired by police’.1015 Justice Stewart also recommended tighter controls. After police found drugs, removal and storage would be a matter for a forensic chemist. Discussions at the scene of the raid would have to be recorded on audio or video tape. New evidentiary provisions would allow early destruction of the bulk of the drugs. Each seizure would have to be re-analysed and re-weighed prior to destruction.1016
Liberal MLA John Hannaford criticised the failure of the Wran Government to address these recommendations in the Search Warrants Bill 1985, arguing that the Government ‘should have taken the opportunity to provide a detailed and codified piece of legislation to make sure that such abuses do not occur’.1017 In 1986, amendments were made to the Drug Misuse and Trafficking Act 1985 to regulate the destruction of seized drugs. Under the new Part IIIA, a senior police officer could order destruction of drugs before trial where there was a pressing security problem (section 39C). A magistrate could order destruction before trial, after taking into account a range of considerations, if a sufficient quantity for testing was retained (sections 39A-39M). A magistrate could also order destruction after trial, with a presumption in favour of destruction (sections 39N-39R).1018
In the debate on these amendments in Parliament, Labor Attorney-General Sheahan argued that they would reduce ‘scope for corrupt practices’.1019 The Opposition supported the Bill, but expressed concern at the continuing scope for drugs to be misappropriated prior to the laying of charges.1020 Particular concern was expressed by the Leader of the Opposition in the Legislative Council, the Hon
1014 Williams (1980: B213). 1015 Williams (1980: B213). 1016 Stewart (1983: 592-98). 1017 LC v 3/184 at 4689-96 (20 March 1985). 1018 These provisions were inserted by schedule 1 to the Drug Misuse and Trafficking (Amendment) Act 1986. 1019 LA v 3/190 at 2575 (23 April 1986).
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Ted Pickering. Pickering spoke of years of allegations that drugs were ‘recirculated or recycled’; and of the consistent failure of the NSW Police Force to overcome this problem. He proposed the rotation of drug squad detectives, and the introduction of secure exhibit bags.1021
John Hannaford also challenged the adequacy of the legislation, and again cited the recommendations of the Williams and Stewart Royal Commissions. Hannaford proposed ‘a code to clearly direct how the police will act in seizing and destroying drugs’.1022 The Council for Civil Liberties argued unsuccessfully that there should be a requirement for a third party to be present at the post-trial destruction of drugs.1023
The 1986 amendments did not put an end to allegations of police misapplying drugs. The continuing controversy about drug security came to a head in the fall- out from the resignation of the Hon Ted Pickering as Police Minister in the Greiner Government over the ‘Angus Rigg affair’. In that affair, public conflict between the Minister and Police Commissioner Lauer over the handling of an attempted suicide by a young man in police custody led to the Minister being moved to another portfolio and to a Parliamentary inquiry into the sources and nature of the confrontation.
According to the Parliamentary Committee report ‘the issue of the security of seized drugs was one of major concern to Mr Pickering, and one that he took up with vigour when he became Minister’.1024 In November 1990, Pickering had drafted a memorandum to the Police Commissioner in which he directed that testing be introduced to ensure that the quantity and purity of drugs to be destroyed was the same as when they were seized. He was told that Part IIA of the Drug Misuse and Trafficking Act 1985 did not allow drugs to be tested for
1020 LA v 3/190 at 2799 (Mr Dowd, 24 April 1986). 1021 LC v 3/191 at 3003 (29 April 1986). 1022 LC v 3/191 at 3011 (29 April 1986). 1023 Civil Liberty (1986: 122 at 74). 1024 JSC on Police Administration (1993: 315). 227
purity. In June 1992, Pickering again sought action on the part of the Police Force and after being provided with an options paper, wrote to the Attorney-General seeking his support for legislation to allow drugs to be tested for purity.1025
The Parliamentary Committee found that senior police had not fully co-operated with Pickering’s efforts to improve drug security.1026 Pickering later moved a motion in Parliament calling for a vote of no confidence in Commissioner Lauer. In this motion, Pickering called for:
legislation to enable a comprehensive random audit system, both qualitative and quantitative, of all illegal drug exhibits held in custody by Police and at the time of their destruction, to protect the community from the misappropriation of illicit drug exhibits by Police.1027
In the debate on his motion, Pickering described existing drug security measures as ‘fatally flawed’, and made numerous allegations of tardy police practice. For example, after he had insisted that drug exhibits be kept in cabinets requiring two keys he found that both keys were being given to one officer as a matter of routine. Pickering went on:
The community should ask why many senior police do not want proper drug security arrangements… I ask my parliamentary colleagues why we as a community provide an annual expenditure of millions of dollars fighting the drug war in this State yet stand by in an apparent complacent trance while the police hierarchy treat their responsibilities to establish proper illicit drug exhibit security with disdain...1028
1025 LA v 3/238 at 4870-77 (28 October 1993). 1026 JSC on Police Administration (1993: 316). 1027 LC v 3/238 at 4360-61 (26 October 1993).
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Pickering’s criticisms were underscored by two revelations in 1993. The Crime Commission found that police in Frenchs Forest had smoked cannabis held as a drug exhibit; and a police internal investigation found that 93 cannabis plants held as an exhibit had been ‘accidentally burnt’ by Lismore police.1029 No legitimate justification was advanced for police resistance to Pickering’s instructions in the face of the manifest inadequacy of existing procedures, although former Commissioner Avery did tell the Parliamentary Committee: ‘I do not think the police enjoyed being treated like prime suspects in a drug bust’.1030
In response to Pickering’s motion in Parliament, his successor as Police Minister announced that a working party had been established under Adrian Roden QC to examine the issue of drug security and make recommendations for legislative and procedural change.1031 Cabinet approved a ‘drug security’ reform package in July 1994, based on the recommendations of the Roden Committee and of an Inter- Departmental Committee set up in 1992 by Attorney-General Hannaford and Police Minister Terry Griffiths. The reform package involved the establishment of a secure centralised facility under the control of the Attorney-General’s Department for the storage and analysis of drug exhibits. Contrary to advice that the Police Commissioner had given to Police Minister Pickering in 1992, it was concluded that qualitative analysis of drug exhibits did not require legislative amendments. It was also decided that police procedures for handling drugs should be overhauled. It is notable, given the prior delays in this area, that the Police Minister indicated that there has been unsatisfactory delays on the part of the Police Service in revising its procedures.1032
Any illusions that the problems of drug security were then resolved were shattered by the findings of the 1997 report of Justice Wood’s Royal Commission into the NSW Police Service. Justice Wood found that police were ‘directly involved in
1028 LC v 3/238 at 4380-82 (26 October 1993). 1029 NSW Ombudsman (1994: 49-50), LC v 3/238 at 4856 (28 October 1993). 1030 JSC on Police Administration (1993: 316). 1031 LA v 3/238 at 4420 (Mr Griffiths, 26 October 1993). 1032 LA v 3/244 at 5806-7 (Mr West, Minister for Police and Emergency Services, 24 November
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the supply of cocaine, heroin and cannabis’, which generally involved ‘the recycling of drugs seized in various operations that had simply not been booked up’. Justice Wood found that in the North West Region such deals were ‘so regular that little is served by descent into detail’.1033 At around the same time, an extensive series of interviews with drug users of Asian background, in the suburb of Cabramatta, revealed many reported thefts of drugs and money by police.1034
The Williams and Stewart Royal Commissions had played an important role in drawing attention to drug security problems, and the failure to implement their recommendations had proven costly. Many of their recommendations for new criminal investigation laws had been ignored. There was, however, one central recommendation of the Stewart Royal Commission that was to be implemented, following an intensive public debate: the establishment of a crime commission.
Crime Commission
The perceived failings of police led to proposals, from the mid 1970s onwards, for the establishment of an independent crime commission to investigate organised crime in NSW. One of the principal proponents of the establishment of a crime commission was Bob Bottom, a journalist, political adviser, and long time campaigner for tougher measures against crime and corruption. Bottom devoted the final chapter of his 1979 book, The Godfather in Australia, to advocating the establishment of a crime commission at a State or Federal level. Drawing on the Californian Crime Commission as the ‘best model’, Bottom proposed a commission that would be independent of the police force, chaired by a retired judge and staffed by professionals (for example, lawyers and accountants). By investigating allegations of organised crime and disclosing its findings, such a commission would expose and bring down crime bosses, enhance public
1994). 1033 Wood (1997: v 1, 132). 1034 Maher, Dixon, Swift and Nguyen (1997: 30-35). 230
awareness of the menace of organised crime, and place police under pressure to do more to combat crime groups. He warned that without such measures ‘organised crime will… explode into the political issue of the 1980s’.1035
Bottom was employed as the Wran Government’s ‘organised crime’ adviser for 6 months during 1978. In this capacity he urged the Premier and the Government to establish a crime commission in NSW.1036 He also outlined his proposal in a written submission to the Woodward Royal Commission and as a witness before the Legislative Council Select Committee on Crime Control.1037 The Select Committee endorsed the proposal.1038 Justice Woodward was more cautious, concluding that the decision whether to establish a crime commission ‘must wait until the Police Department has been given an opportunity to implement suggested changes… and the results have been evaluated’.1039
After leaving Government service, Bottom worked as an adviser to Opposition Leader John Mason.1040 During this period, Mason and members of his front bench team began advocating the establishment of a crime commission in NSW.1041 They were joined by Independent MLA John Hatton.1042 There was also some support for a crime commission from the other side of politics, following the horrific bashing of Labor Party official Peter Baldwin, in connection with inter-factional disputes. The Labor Party’s NSW Administrative Committee resolved in July 1980 that the Government should establish a crime commission to investigate organised crime, collect intelligence, and monitor the need for legislative and administrative reforms.1043
1035 Bottom (1979: 169-74). See also see Bottom (1984: 162), SMH (1986: 14 March at 4). 1036 Bottom (1984: ch 6). 1037 Bottom (1984: 60), Legislative Council Select Committee on Crime Control (1978: 74). 1038 Legislative Council Select Committee on Crime Control (1978: vii). 1039 Woodward (1979: 1604). 1040 Bottom (1984: 83). 1041 LA v 3/154 at 6280 (Mr Mason 1 April 1980), LA v 3/155 at 824 (Mr Mason 11 September 1980), LC v 3/154 at 6405 (Hon D Freeman, 2 April 1980), LA v 3/156 at 915 (Hon M Willis, 16 September 1980). 1042 LA v 3/143 at 2347 (Mr Hatton, 22 February 1979). 1043 SMH (1986: 14 March at 4). 231
A proposal to establish a crime commission was considered by State Cabinet during 1980, but the Cabinet declined to come to a decision and referred the matter to the Attorney-General and the Minister for Police for further examination.1044 According to Bob Bottom, plans for a NSW Crime Commission were shelved soon after at the request of Premier Wran, with police hostility to the idea a central factor.1045 In the next few years, Premier Wran repeatedly expressed his opposition to the establishment of a crime commission. Wran argued that organised crime ‘should not be seen as being separate from other types of crime’ and that establishment of a crime commission ‘may only introduce problems of co-ordination’.1046 On a subsequent occasion, Wran suggested that Californian experience showed that organised crime could spread despite the existence of a crime commission and that ‘the real thrust must always come through properly established police agencies’.1047
In the early 1980s, a group of Victorian Liberal Party members, frustrated with resistance to the establishment of a crime commission in their own State, began to lobby for the establishment of a national commission.1048 The deliberations of the Stewart Royal Commission provided a forum for further debate on the subject. The Director of the Australian Bureau of Criminal Intelligence, for example, told the Royal Commission that no one State was capable of handling organised crime. A Federal crime commission with wide-ranging powers was the only solution.1049
Early in 1982, as the Stewart Royal Commission continued its inquiries, Prime Minister Malcolm Fraser announced that the Commonwealth Government intended to legislate to establish a National Crimes Commission. He sought the co-operation of the States so that the Commission could investigate criminal conduct across jurisdictional lines. Although the proposal sparked considerable controversy, and the State Premiers withheld their consent, the National Crimes
1044 LA v 3/155 at 824-25 (Premier Wran, 11 September 1980). 1045 Bottom (1984: 84-85). 1046 LA v 3/243 at 2548 (28 February 1979). 1047 LA v 3/155 at 824-25 (11 September 1980). 1048 Institute of Criminology (1983: 19), SMH (1986: 14 March at 4).
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Commission Act 1982 was enacted.1050
Under that Act, the National Crimes Commission was to be headed by a Chairperson (initially, Sir Edward Williams) and between one and four other members (section 6). The Commission was given a broad mandate to investigate Commonwealth and Territory offences but was required ‘so far as practicable’ to direct its activities against organised and sophisticated crime, and bribery and corruption (section 7). A framework was put in place for the Commission to be granted powers and functions under State law (sections 8-9).
The Commission and its members were given the power to seek a search warrant from a judge (section 14), and to conduct hearings in public or private (section 17). Commission members were also empowered to summons a person to appear and answer questions or to produce documents (section 20). Failure to answer questions and produce requested documents without reasonable excuse was punishable by imprisonment or a fine (section 21). The privilege against self- incrimination could be overridden if the Commonwealth Attorney-General granted an immunity against use of the incriminating information in proceedings against the discloser (section 21).
The Stewart Royal Commission gave strong backing to the crime commission concept, but was critical of the National Crimes Commission Act. Stewart argued Australia required a crime commission, equivalent to a ‘standing or permanent Royal Commission… to make governments and the public aware of the existence and activities of organised crime, to assemble material for the prosecution of conspirators and to make a public hearing at least annually’. The commission would require ‘very wide powers’, including the power to subpoena persons to testify under oath and/or produce documents, and to issue arrest and search
1049 NMH (1981: 10 September at 6). 1050 As to this controversy, see ‘A National Crimes Commission - For and Against’, reprinted in the NSW Police News (1982: October at 7-8). 233
warrants. A person was called to testify should have no right to silence.1051
Among the ‘serious deficiencies’ that Stewart saw in the Act was the preservation of the privilege against self-incrimination (unless a certificate were granted). He felt this would seriously erode the prospects of ‘minor figures’ in organised crime giving evidence against more senior organisers.1052 Stewart also bemoaned that fact that the proposed Commission had no access to Tax Office records, no power to issue search warrants, no power to intercept communications, and no power to itself impose a penalty for a person’s failure to testify or produce documents. He warned that ‘if a crimes commission is to be effective it must be equipped with wide ranging powers’.1053
Within NSW, one of the most interesting features of the debate about the National Crimes Commission was the response it attracted from the NSW Police Force. While Victorian Police Commissioner Mick Miller and some other senior police expressed support for a national commission,1054 a number of police unions campaigned against the proposal. The NSW Police Association was prominent in this campaign and was supported by the NSW police hierarchy.
Police hostility to a crime commission was not surprising. The rationale for a crime commission was that police had failed in the past and could not be relied on in the future. Douglas Meagher QC, a forceful advocate of the crimes commission concept, put the matter plainly when he said ‘(t)he only basis of justification that I can see for a crimes commission is because there are... special powers required which you are not prepared to give your police forces’.1055
The Royal Commissions had levelled a range of criticisms at police forces, of which the allegations of corruption and illegality outlined above are just examples.
1051 Stewart (1983: 783-87). 1052 Stewart (1983: 791-94). 1053 Stewart (1983: 794). 1054 Stewart (1983: 700), Institute of Criminology (1983: 19). 1055 NCC Conference (1983: 104). 234
Justice Woodward, for example, had quoted statistics suggesting that of the charges laid by police for drug offences, 92% were for possession and use and only 5% for trafficking. These arrest statistics reflected ‘not the success but the failure of the drug enforcement effort’. Drug trafficking was a problem that law enforcement efforts were ‘failing to contain’.1056 Similarly, Justice Williams said it was ‘essential that State police… are educated to realise that merely having a drug user convicted is of little value in the context of a national strategy on drugs’.1057 He concluded that efforts against the drug trade in Australia had been largely unsuccessful to date, in part because of a ‘large degree of inefficiency in law enforcement operations’.1058
Justice Stewart saw his own investigations as a model of effectiveness, in contrast to the mediocre efforts of police. Stewart argued that ‘Royal Commissions have a history of discovering matters which ordinary law enforcement fails to discover’.1059 He argued for a crimes commission that would in effect be ‘a standing Royal Commission’ that would:
obtain more evidence about organised crime than police ever will… A Royal Commission is not involved with routine work but tackles directly a particular target. It usually has better co-operation from the public than police obtain. It can obtain whatever expertise is necessary to attack any particular problem that confronts it. A national crimes commission should have all these advantages… A crimes commission with powers similar to a Royal Commission will obtain much evidence that the police will not obtain…1060
The establishment of a ‘permanent Royal Commission’ threatened to demote the Police Force to secondary status in the high profile war against drugs. The NSW
1056 Woodward (1979: 1603-9). 1057 Williams (1980: B226-27). 1058 Williams (1980: D12). 1059 Stewart (1983: 783). 1060 Stewart (1983: 774-75). 235
Police Association was already concerned that the Corporate Affairs Commission, which investigated corporate fraud offences, was an encroachment on ‘traditional police responsibilities’ and would ‘bring about a fragmentation of the responsibility for law enforcement in this State, resulting in confusion and inefficiency’.1061 Association Secretary Bob Page argued that the answer was ‘to train specialist Police within our Force and not to establish a parallel and possibly competing organisation’.1062
In September 1982, it was reported that Royal Commissioner Frank Costigan had said police lacked the ‘intellectual capability’ to uncover organised crime. Police Commissioner Cec Abbott came out publicly to defend his force. He argued that police were in fact highly trained, experienced and competent, but were hampered by ‘restricted legal powers’. Police required powers to demand answers to questions and to seize records. The following month, the Police Association argued that with the powers and funding proposed for the National Crimes Commission, police could do a better job at less cost to civil liberties.1063
Commissioner Abbott continued his criticism of the Royal Commissions in his address to the 1983 Police Association annual conference. Abbott argued that the Royal Commissions had the luxury, not shared by police, of making ‘findings on the basis of unsubstantiated matters’ without the ‘evidence required to satisfy courts’. Abbot then threw down the gauntlet:
it is now up to the community and the governments to decide how they will respond to the findings of the various Royal Commissions. The decision is simply, whether the additional powers needed to bring major criminal operators before the Courts is given to police forces or to a new organisation, such as a national crimes commission… the only people, in my view, who have the skills and experience to
1061 McLelland (1978). 1062 Page (1980), NSW Police News (1980: September at 2). 1063 NMH (1982: 9 September at 8), NSW Police News (1982 October at 2). 236
carry out the investigative work basic to an assault on organised crime are to be found in our existing Police Forces… The limits to our success can only be defined in terms of our lack of authority to act, and to a much lesser extent, to a lack of resources.1064
The following year, Commissioner Abbott launched a further broadside through a Sunday newspaper, which reported him as saying that:
State and Federal Governments faced this clear choice. If they wanted big-time crime wiped out they had to give State police forces Royal Commission-type open powers… It is no good the public blaming the police for failing to crack down on the criminal gangs when we haven’t the powers to do it.1065
Abbott called for police to be given access to financial records, the right to search premises without warrant, and enhanced powers of electronic surveillance. The Police Association expressed its support for these proposals.1066 Police Association Secretary Bob Page contrasted the broad powers of the Costigan Royal Commission with police ‘shackled by utopian measures’, and suggested that the NSW Police Force could do better than Costigan in uncovering organised crime, if it was given adequate powers. Page also suggested that enhanced powers for the NSW Police Force (which ‘exists only with the consent and approval of the people’) were less dangerous to civil liberties than the creation of a crimes commission (which ‘smacks of the Spanish Inquisition’).1067
Police hostility helped to slow, but was unable to stop, the crime commission bandwagon. When the Hawke Labor Government came to power federally in March 1983, the National Crimes Commission Act 1982 had not been proclaimed.
1064 Abbott (1983). 1065 ST (1983: 19 May at 9). 1066 ST (1983: 19 May at 9). 1067 Page (1983). NSW Police Commissioner Avery later made similar comments: NMH (1984: 6 November at 10). 237
The new Government held a summit to debate the merits of a commission in Canberra in July 1983. Support for a commission came from a number of the former Royal Commissioners, including Justice Woodward who had previously been an opponent.1068 Lawyers’ groups, civil libertarians, State governments and police unions maintained their opposition.1069 Reflecting on the summit, civil libertarian Carolyn Simpson memorably described the proposed commission as a ‘highly malevolent, dangerously armed red herring’.1070
Federal Labor Attorney-General Gareth Evans said that the jurisdiction and powers of the commission would have to be tempered.1071 However, the subsequently enacted National Crime Authority Act 1984 was very similar to the Fraser Government’s 1982 legislation. Justice Stewart, rather than Justice Williams, was to be the Authority’s first chair. Like the Commission proposed in 1982, the functions of the Authority centred on the investigation of organised crime (sections 4 and 11). It was given power to seek search warrants (sections 22-23), to conduct hearings (section 25), to summons witnesses, and to demand documents (sections 28-29). It was an offence to fail to attend, answer questions or produce documents, subject to similar self-incrimination/ indemnity provisions to those in the 1982 Act (section 30).
One departure from the 1982 legislation was that the States were given some control over the Authority. In particular, its investigations were to be conducted pursuant to ‘references’. A ‘reference’ relating to the investigation of State law required Ministerial level approval from that State (sections 8-14). While this led to criticism that the National Crime Authority would be prevented from pursuing corruption and other politically embarrassing crimes, such a requirement helped overcome State resistance to the establishment of a national commission.1072
1068 NCC Conference (1983: 73). 1069 See, for example, NCC Conference (1983: 107-9, 188-91). 1070 Simpson (1983). 1071 Institute of Criminology (1983: 10, 38, 83), Sallmann (1983). 1072 See, for example, Moffitt (1985: 125-33), LA v 3/183 at 2632-35 (Mr Dowd, 25 October
238
Each State agreed to authorise the National Crime Authority to investigate offences against its own law. The National Crime Authority (State Provisions) Act 1984 (NSW) set up a mechanism for the NSW Government to refer a matter to the National Crime Authority for investigation (section 5); and for the National Crime Authority to assemble evidence of a NSW offence (section 6). The Act also empowered the National Crime Authority to seek and execute search warrants (sections 12-13), conduct hearings (section 16), summons and question witnesses and demand documents (section 17), in the investigation of a NSW offence.
In his second reading speech on the NSW Bill, Attorney-General Paul Landa described these powers as ‘formidable’.1073 The Opposition had little say on the subject.1074 The debate about a national crimes commission was over, and despite the oft-stated political influence of police, their resistance had not won the day. With the enactment of the legislation, the Commonwealth had further increased its involvement in policing and criminal justice.
Attention soon returned to the merits of a NSW commission. Bob Bottom was once again a staunch advocate.1075 In May 1985, Premier Wran visited California. After years of publicly opposing the establishment of a NSW crime commission, he reversed his position, announcing that his Government would move to establish an ‘independent’ drug commission as part of a ‘boots and all way to declare war on the use and supply of drugs’.1076
Different theories have been put forward to explain this change of heart. Wran’s own account was that he had decided the community could no longer wait for police to acquire the ‘legal, computing and accounts expertise’ necessary to investigate organised crime. Wran contended, without explanation, that it was desirable to give additional powers to a new body rather than police, from a ‘civil
1984). 1073 LA v 3/182 at 2171 (18 October 1984). 1074 LA v 3/183 at 2632-36 (Mr Dowd, 25 October 1984) and LC v 3/183 at 2950-51 (Hon E Pickering, 31 October 1984). 1075 Institute of Criminology (1983: 26).
239
liberties point of view’.1077
Wran’s biographers, Steketee and Cockburn, argue that Wran and his Government saw the establishment of a State commission as a way to overcome perceptions that the Government was complacent about corruption within the NSW Police Force, and about police involvement in the drug trade.1078 Perceptions of inaction had stemmed from such episodes as Police Commissioner Abbott’s 15 months of complete inaction in response to a Federal Police report detailing the involvement of NSW police in drug trafficking. Opposition leader Nick Greiner alleged that Wran had acted from motives of the kind suggested by Steketee and Cockburn.1079
John Marsden, President of the Council for Civil Liberties, argued that the proposal to establish a State Drug Crime Commission was simply ‘a successful political ploy by the Premier to gain public approval’.1080 Frank Costigan QC, a strong supporter of the idea of a national crimes commission, offered a more sinister explanation for the establishment of the State commission:
It reflects a determination that the investigation of any drug-related offence in New South Wales shall remain the province of that State. It is a clear warning to others to keep out. I remember when I attended the National Crime Summit the Attorney-General of New South Wales, the late Paul Landa… [made] it clear to me that he and his Government would not allow outsiders to look at matters in his State… The philosophy behind those remarks finds full expression in the State Drug Commission Act… To place a Berlin wall around this State can advantage only those who wish to continue operating within it to the detriment of the whole
1076 SMH (1986: 14 March at 4). 1077 LA v 3/186 at 7541-42 (2 October 1985). 1078 Steketee and Cockburn (1986: 286). 1079 LA v 3/186 at 7833 (15 October 1985). 1080 Civil Liberty (1985: 119 at 23). 240
Australian community.1081
Justice Woodward also criticised the State Commission, declaring it to be a ‘waste of time and money’ because of the need for a national response to organised crime and drug trafficking.1082 The State Drug Crime Commission Act 1985, as it was originally named, was similar to the National Crime Authority Act. The Commission was to consist of a Chairperson and two other members (section 5). Its principal functions were to investigate ‘relevant drug activity’, to assemble evidence of ‘relevant drug offences’, to provide reports relating to drug trafficking and related crime including recommendations for law reform, and to disseminate its expertise (section 6). The definitions of relevant drug activity and relevant drug offences were directed to drug offences involving ‘substantial planning and organisation’ (section 3).
The Commission was to have a range of powers, similar to those of the National Crime Authority: to require a NSW agency to provide information or documents specified in a notice (section 10); to seek and execute search warrants (section 11), to seize certain items not covered by a warrant (section 12), to conduct hearings (section 13), and to summons a witness to appear, give evidence and/or produce documents (sections 16 and 17). Matters were to be referred to the Commission by a ‘Management Committee’ consisting of the Police Minister, the Police Commissioner, the National Crime Authority Chairperson and the NSW Commission’s own Chairperson (section 24). Before referring a matter, this Committee was to ‘consider whether ordinary police methods of investigation’ were ‘likely to be effective’ (section 25). The Commission had no power to initiate its own investigations, but could request the Management Committee to refer a matter to it (section 26).
Civil libertarians expressed predictable outrage at the proposals contained in the Bill. The NSW Council for Civil described the proposed Commission as a ‘Star
1081 Institute of Criminology (1986: 15), SMH (1986: 13 March at 1). 1082 SMH (1986: 14 March at 8), LC v 3/189 at 1417 (Hon Marie Bignold, 8 April 1986). 241
Chamber’ that would produce ‘horrendous consequences’.1083 The NSW Society of Labor Lawyers argued that the legislation contained no measures to combat abuse of powers, such as the planting of drugs on suspected offenders.1084
Inside Parliament, the debate on the State Drug Crime Commission Bill produced little in the way of substantive disagreement, notwithstanding a marathon ‘debate’ in which thirty-six parliamentarians spoke. Premier Wran declared that the Government’s anti-drugs programme amounted to ‘a full-scale war on illegal drugs unmatched anywhere in Australia’.1085 Wran acknowledged that the Commission’s powers represented an infringement of civil liberties, but argued this was necessary to combat ‘modern organized crime’.1086 The Opposition expressed support for the Bill, while criticising the adequacy of the Government’s overall effort to combat drug trafficking.1087 Most of those who referred to the Commission’s powers were supportive of their breadth. A typical comment was that ‘the public will condone the extension of power and the limitation on individual liberties because they are aware of the extent of the drug problem’.1088 The Bill was enacted and the Commission began operations in January 1986.
In the next few years, there were two main developments in relation to the jurisdiction and powers of the Commission under its Act.1089 In 1987, Commission Chair Richard Job QC lobbied for the Commission to be given the authority to initiate its own investigations. Job argued that the Commission’s lack of jurisdiction to initiate investigations was responsible for a failure to bring certain drug traffickers to justice.1090 The Commission received this authority in 1990, although the exercise of its coercive powers (for example, to demand documents or answers to questions) remained dependent on a reference from the
1083 Civil Liberty (1985: 119 at 12, 16-17, 23, 31). 1084 SMH 1985 (22 October). 1085 LA v 3/186 at 7537 (2 October 1985). 1086 LA v 3/186 at 7543 (2 October 1985). 1087 See, for example, LA v 3/186 at 7833 (Mr Greiner, 15 October 1985), at 7841 (Mr Murray) and at 7850 (Mr Peacocke). 1088 LA v 3/186 at 7875 (Mr Irwin, 15 October 1985). 1089 Developments under other legislation, such as that governing telecommunications interception, are considered in subsequent chapters. 242
Management Committee.1091
In August 1988, Police Minister Ted Pickering took a proposal before Cabinet to turn the State Drug Crime Commission into a NSW Crime Commission with jurisdiction akin to that of the National Crime Authority, extending to all forms of organised crime. This was, in fact, reported as being a proposal for a major new authority. There was tension between Mr Job QC and the Government over the fact that this proposal was linked with another, to give the Police Service effective control over Commission investigators.1092 Legislation to give the Commission jurisdiction to investigate organised crime generally was enacted later that year.1093 The legislation also made provision for greater Police Service control over Commission investigators by providing for police task forces, operating under the Police Commissioner’s direction, to assist the Commission with its investigations. The Police Force had reasserted its influence, securing a situation in which the Crime Commission was an adjunct to the Force rather than an independent, alternative policing agency.
The name ‘State Drug Crime Commission’ was retained for a further two years, out of concern that ‘if the word “drug” were dropped from the name of the organization, it could be misconstrued… that in some way the Government had ceased to attack the drug problem’.1094 Two years later, this concern apparently overcome, the Commission was renamed the ‘NSW Crime Commission’.1095 For over a decade, NSW was the only State to have its own Crime Commission, until Queensland followed suit in 1997.1096
1090 SMH (1987: 31 July at 4). 1091 Schedule 1 to the State Drug Crime Commission (Amendment) Act 1990. 1092 SMH (1988: 25 August at 1). 1093 Schedule 1 to the State Drug Crime Commission (Further Amendment) Act 1988. 1094 LC v 3/205 at 3712 (Hon E Pickering, Minister for Police and Emergency Services, 29 November 1988). 1095 Schedule 1 to the State Drug Crime Commission (Amendment) Act 1990. 1096 Crime Commission Act 1997 (Qld). 243
Who Won the War?
In the 1980s dire warnings were made about the need for tougher laws to deal with drug trafficking. In 1983, Frank Costigan QC said that if nothing was done about organised crime then ‘within five years this country will have become a jungle’.1097 In 1986, John Laurence QC told a Sydney seminar on organised crime that ‘the only way we will survive this drug problem is by suspending civil liberties when it comes to people who are arrested or even suspected, of trafficking in drugs… We must have tough, draconian methods. It is the only way of saving ourselves’.1098
It is notable that these statements focused on the costs of losing the war on drugs rather than the benefits of winning it. They betray an underlying realisation that the war could not be ‘won’. Few were willing to show even the modest optimism of the Reverend Fred Nile:
The drug war is so serious that it calls for emergency measures such as apply in wartime. When the drug war is won, as I hope it can be, this sort of legislation (ie, the Drug Misuse and Trafficking Act) may not be so necessary or so prominent.1099
The pessimists have been proven right so far, and the ‘war’ continues. This is not surprising. Egon Bittner, a leading American academic commentator on policing, has pointed out that crime is an inherent part of society, that can never be vanquished by ‘war’. He warns that the intent of such rhetoric is to appeal to associations that are established below the level of rational discourse and to evoke responses that would ordinarily not issue from sober analysis.1100 Another American commentator, Charles Silberman, has argued that for ‘the most part, the history of national and local ‘wars on crime’ is a record of impotence and failure -
1097 NCC Conference (1983: 53). 1098 Institute of Criminology (1986: 78-79). 1099 LC v 3/191 at 3012 (29 April 1986). 1100 Bittner (1990: 132-35). 244
of unintended consequences being larger than, and often in the opposite direction from, those that were intended’.1101
These comments have been borne out by a number of reports and inquiries on the war on drugs in Australia in the period since the Royal Commissions. In 1989, for example, the Commonwealth Parliamentary Joint Committee on the National Crime Authority conducted an inquiry into Drugs, Crimes and Society.1102 The Committee examined ‘the efficacy of present law enforcement strategies in suppressing the trade in illegal drugs in Australia’.1103 It sought to identify both the costs and the benefits of existing drug law enforcement policies. Among the costs, it estimated that Federal policing agencies were allocating around $35 million per annum to drug law enforcement, as against $25 million spent on this task by State policing agencies. The Committee also noted less tangible costs, such as harm to users from an unregulated market, property crime generated by high drug prices, corruption, and the erosion of civil liberties.1104
Against this, the Committee found that law enforcement agencies were managing to seize and destroy a sizeable proportion of both drug crops and drug imports (around 20%). Yet ‘even a significant increase in seizures’ would have ‘little impact’ on the drug market, because the low costs and high profits of the industry made replacement of seized consignments easy.1105 Even where a wholesaler was imprisoned, for example, a minor dealer could readily step in to take on the wholesaling role.1106 The Committee concluded that ‘law enforcement agencies have not succeeded in preventing the supply of illegal drugs into Australian markets’. Indeed, it was ‘unrealistic to expect them to do so.1107
The Committee was critical of the limited effort that had been made to evaluate
1101 Silberman (1978: 173-82). 1102 PJC-NCA (1989). 1103 PJC-NCA (1989: viii). 1104 PJC-NCA (1989: 75-88). 1105 PJC-NCA (1989: x, 59-62). 1106 PJC-NCA (1989: 64). 1107 PJC-NCA (1989: xiv). 245
law enforcement efforts against ‘the stated ends of the policy of prohibition, namely to reduce or eliminate use of the prohibited drugs in our society’. It noted that the evaluation criteria that the Williams Royal Commission had urged, for example monitoring of drug prices, purity and availability at street level, had been largely ignored by law enforcement agencies.1108
Despite this powerful critique of existing policies, the Committee was unwilling to face the logic of its own findings. It recommended more and better statistics, more and better evaluation of law enforcement and ‘earnest consideration’ of options for regulating the drug market.1109 It expressly declined to suggest abandonment of the law enforcement driven approach to the drug problem.1110
Three years later, a 1992 report evaluating the National Campaign against Drug Abuse, on which $247 million had been spent over 6 years, struggled to identify tangible successes in law enforcement or elsewhere and acknowledged that mechanisms for evaluating the Campaign were inadequate.1111 In turn, the 1995/96 ‘Australian Illicit Drug Report’ prepared by the Australian Bureau of Criminal Intelligence indicated that:
some research has shown that domestic seizures appear to have little effect on availability as perceived by users… it is widely acknowledged that [policing agencies] manage to seize only a small percentage of the illicit drugs imported into Australia… While some law enforcement efforts result in temporary shortages or price increases, there appears to be no long term effects from these efforts.1112
In 1996, the National Police Research Unit published a detailed Evaluation of
1108 PJC-NCA (1989: 122-23). 1109 PJC-NCA (1989: xiv-xv). 1110 PJC-NCA (1989: vii). 1111 Ministerial Council on Drug Strategy (1992: 13-15). 1112 ABCI (1996: 17). 246
Australian drug anti-trafficking law enforcement.1113 Their study drew on international policing literature, documents on enforcement structures, strategies and outcomes, and interviews with nearly 100 drug law officers.1114 A closely related report was released shortly beforehand, entitled Measuring the success of law enforcement agencies in Australia in targeting major drug offenders relative to minor drug offenders.1115
The first report noted generally high levels of satisfaction with existing drug enforcement powers on the part of officers, but that there was a push by the ‘Heads of Drug Squads Conference’ for uniform national enforcement powers.1116 This was yet another sign of the recurring national focus of the debate about criminal investigation powers. Interestingly, the report also found that junior officers were more likely to see limitations on police effectiveness as the result of inadequate police resources. Senior officers were more likely to see limited effectiveness as reflecting the ‘largely ineradicable’ nature of the drug problem.1117
As a general proposition, law enforcement officers did not believe they were significantly reducing drug trafficking.1118 This was consistent with the pronouncements by leading figures in Australian law enforcement and prosecution agencies, including NSW Police Commissioner Peter Ryan, that the drug war had effectively been lost.1119 The two studies by the Australian Policing Research Unit highlighted a fundamental schism between intent and outcome relating to high level traffickers. In principle, agencies were oriented to targeting the ‘Mr Bigs’; in practice it was hard to tell whether a suspect was a ‘Mr Big’ or to what degree.1120 Furthermore, drug trafficking was reported to be organised by a ‘milieux’ of small-scale entrepreneurs, not by centralised organised criminal organisations.1121
1113 Sutton and James (1996). 1114 Sutton and James (1996: 8-10). 1115 Green and Purnell (1995). 1116 Sutton and James (1996: 35, 76). 1117 Sutton and James (1996: 81). 1118 Sutton and James (1996: 105). 1119 See for example ‘Police losing drugs war, says Ryan’: SMH (2001: 10 August at 2). 1120 Sutton and James (1996: 118-22); Green and Purnell (1995: 7-9, 34-37). 1121 Sutton and James (1996: 122). See also Hogg and Brown (1998: 99-101), Collison (1995: 247
Ironically, intensive drug law enforcement can bring down small, ad hoc, independent drug dealers, encouraging target hardening including the creation of more organised, hierarchical groups with internal specialisations.1122
These findings are reminiscent of Gatrell’s commentary on the ‘invention’ of the professional criminal in the late nineteenth and early twentieth centuries: the ‘“professionals” whom a half-century long campaign eventually brought to light turned out to differ little from the pathetic procession of the needful who took up most police and court time’.1123
During 2000 and 2001, there has been a strong reassertion of claimed police effectiveness against the drug trade. Federal policing authorities, in particular, have made strong claims as to their contribution to a reduction in the volume of heroin available on the streets. Sadly, history suggests that this reassertion of confidence in the actual or potential effectiveness of drug law enforcement will be short lived.1124
In the debate about special powers to investigate drug crimes, opponents of such powers frequently expressed concern that this would be the thin edge of the wedge. Once special powers were conferred, they would become available (formally or informally) to investigate lesser offences.1125 This turned out to be true. Telephone warrants became available for all search warrants.1126 Telephone tapping became available for a whole range of serious offences.1127 The State Drug Crime Commission became the NSW Crime Commission.
It is probably just as well. Much of the case for special laws to combat the drug
12), Hall (1986: 78-93). 1122 Maher and Dixon (2001: 10-11). 1123 Gatrell (1990: 306-7). 1124 On the heroin drought and its sources, see Weatherburn, Jones, Freeman and Makkai (2001). 1125 See, for example, NMH (1980: 4 December at 2), Farrier and Weisbrot (1982: 233), SMH (1980: 8 December at 6); Fox and Mathews (1992: 157). 1126 Search Warrants Act 1985, section 12.
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trade was built on flawed arguments. The argument as to why drug crime was more serious than other forms of crime was never clearly made. The Mr Big hypothesis was debunked time and again. Stories about drugs being flushed down the home toilet hardly resonated with the imagery of policing efforts being directed at major trafficking networks. Yet despite the flawed reasoning on which the special ‘drug’ powers were built, the powers themselves have a legitimate role in the investigation of crime, and the legislative regulation of these powers can help encourage their proper use.1128
The disappearance of Mr Big returns attention to the nature of street level drug enforcement. Here, the findings revealed in the Anh Hai study are worth noting.1129 This study, published in 1997, surveyed the experience of young Asian drug users in their dealings with police. This provided persuasive evidence that problems highlighted by the Stewart Royal Commission in 1983 remained prevalent in street level drug policing. Many youths reported the theft of money by police, sometimes as an implicit exchange for not laying charges.1130 Strip searches often took place without clear legal authority and without any real attempt to protect the privacy and dignity of the subject of the search and on the contrary were used to humiliate drug users.1131
The continuing problems associated with street level drug enforcement highlight a recurring irony in the debate about police powers of criminal investigation. Civil libertarian critics of police discretion have frequently focused on ‘big ticket’ powers like crime commission hearings and telephone tapping. It has often been said that these powers are a step towards a ‘police state’.1132 Yet the truth is that a police state has not come to pass. Middle class mainstream lifestyles have not been significantly impaired. The real impacts of drug law enforcement on policing have come from the exercise of more mundane powers against marginalised
1127 Telecommunications (Interception) Act 1979 (Cth), sections 5, 5D, 45A and 46A. 1128 See Chapter 6. 1129 Maher, Dixon, Swift and Nguyen (1997). 1130 Maher, Dixon, Swift and Nguyen (1997: 30-35). 1131 Maher, Dixon, Swift and Nguyen (1997: 35-42).
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groups. The intense debate about major powers to combat organised crime has too often served to obscure that vitally important point.
Conclusion
In the debate about criminal investigation powers to fight the drug war, a number of the theoretical concepts outlined in the first chapter can be seen in action. Both triggers for the debate, and structural causes, are evident. Triggers were important to the timing for the establishment of each of the Royal Commissions, which then generated much of the law reform debate. The disappearance of Donald Mackay was the classic triggering event, generating intensive media attention and public concern, and precipitating the establishment of the Woodward Royal Commission.
However, longer term underlying (structural) changes heavily influenced the way events unfolded, including the nature of the law reform debate that resulted. The decade long rise of the drug trade, the apparent immunity of the organisers of the trade from prosecution, and broader fears that drugs fuelled a permissive culture that would lead to social decay, gave the Mackay disappearance such significance. The disappearance was a tangible symbol of a much wider concern, that ‘business as usual’ law enforcement was failing.
These fears also did much to shape the kind of response that emerged. The perception that normal enforcement mechanisms were not working meant that governments needed to pursue unusual or even unprecedented responses to be seen to be taking the problem seriously. The need for an exceptional response led to the establishment of Royal Commissions (rather than say, asking the police to report on the drug problem). In turn, the well-resourced Royal Commissions subjected law reform issues to extensive analysis, and placed their
1132 Fox and Mathews (1992: 157). 250
recommendations in the public forum, outcomes that would not have followed from a police report to government.
The need for an ‘exceptional’ response to the drug problem also encouraged consideration of new and innovative powers, something that was rarely considered in the ‘business as usual’ climate of the 1950s. The need for an exceptional response encouraged the conferral of a telephone tapping regime and ultimately took the ‘powers’ debate outside the police forces, with the establishment of federal and NSW crime commissions. Structural factors and triggering events were both central to the direction that events took.
The close interrelationship of symbolic and instrumental concerns is also apparent. A real problem (the rise of the drug trade) provided a symbol for more deep-seated concerns about social change, and these were reflected in a ‘moral panic’ about drugs. Furthermore, the symbolic need for a response specifically directed at the drug problem led to artificial attempts to identify why drug trafficking needed to be subject to a unique legislative framework. Special drug crime powers were enacted: crime commission hearings; telephone tapping; warrants by telephone. When these were later made available for other offences, it could fairly be seen as the normalisation of supposedly exceptional powers; but it could also be understood as a more dispassionate and realistic analysis of enforcement realities: drug crime was not so different from other crimes.
Police opposition to a national crimes commission further illustrated the interrelationship of instrumental and symbolic issues. The creation of a crimes commission might deal the police forces and individual police an instrumental blow: the loss of interesting work, and the prestige and resources (perhaps even the opportunities for corruption) that went with that work. It was also a symbolic attack on the past performance and future status of the police forces. This prompted vigorous police opposition to the proposal. Yet the opposition to the national crimes commission was not successful. In this case, police influence and law and order politics were not synonymous. Police opposition had defeated the 251
Federal Criminal Investigation Bills; but it was not enough to stop consecutive Federal governments legislating for a crime commission. Where police objectives ran counter to the law and order agenda, police did not win. Nor were the extra powers proposed by the Royal Commissioners quickly conferred on police. Telephone tapping powers for State police were long delayed and then heavily regulated. The warrantless search proposal was defeated outright in NSW.
Equivocation about entrusting new powers to the police forces reflected continuing disquiet about police corruption and malpractice, particularly evident in the report of the first Stewart Royal Commission. Nowhere were police practices subject to such heavy criticism as in NSW, in the case of the alleged prevalence of ‘verballing’. The next chapter examines the long struggle to curtail police verballing.
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6. VERBALS
Of the many issues concerning criminal investigation law reform that have been debated since 1945, those relating to the questioning of suspects and the securing of confessions have received the most attention. Over the years there were repeated allegations that police had unlawfully detained suspects, and concocted ‘confessions’. This chapter examines prevailing attitudes towards police detention and questioning practices from the 1940s onwards, the formal campaign that emerged in an attempt to curtail the prevalence of confession falsification (‘verballing’) and the judicial and legislative responses to this campaign. The judicial and legislative responses to the related issue of police detention powers are considered further in chapter 8.
Laws and Practices: Detention
The question of police ‘verballing’ has always been closely related to the question of police detention powers. In considering whether NSW police had a common law power to detain a suspect for questioning, it makes sense to start with the case of Ex parte Evers; Re Leary and Another (1945) 62 WN 146, decided in the opening year of this study. The case concerned an incident in which a suspect, Evers, had been apprehended by police and questioned for 3 hours. Tiring of this, Evers used force against police in an attempt to regain his freedom. He was convicted of assault, but challenged his conviction on the basis that his detention was unlawful, and his actions were therefore legally justified.
Justice Maxwell agreed with Evers’ contentions. Paragraph 352(2)(a) of the NSW Crimes Act 1900 provided that a suspect was to be taken ‘before a magistrate to be dealt with according to law’. Justice Maxwell cited previous authority to the
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effect that this was a restatement of the common law, which required that a suspect be taken before a magistrate ‘without unreasonable delay’.1133 The justice went on to note that police may well have acted with ‘honest’ motives, but that amounted ‘to no more than an unfounded claim that to do a great right the police were entitled to do, at least, a little wrong’. There was no authority to arrest ‘or confine’ any person ‘merely for the purpose of asking him questions’.1134
The decision received prominent coverage in the NSW Police News.1135 Yet the apparent clarity of this ruling was undermined by conflicting currents in judicial thought. The rule could easily be circumvented in a number of ways. By creating the impression of an arrest, without formally making one, the ‘unreasonable delay’ limit could be prevented from coming into play. That was because there was no limit on how long a suspect could spend in the ‘company’ of police, ‘voluntarily’ answering questions. Alternatively, delay could be found to be ‘reasonable’, for example where an arrest was made in the evening when magistrates were unavailable. Furthermore, a confession obtained during a period of delay could be allowed into evidence, notwithstanding an apparent breach of the prohibition against ‘unreasonable delay’. David Dixon has catalogued how these means were in fact used, leaving police with considerable lee-way to detain and question, in NSW and elsewhere.1136
The following exchange, taken from the transcripts of a closed session of the Herron Committee in 1966, is a good illustration both of relaxed judicial attitudes, and of the circumstances that helped to encourage those attitudes:
Superintendent Waldon: You were called on, too, Judge, to try the fellow who killed his two boys, and Detective-Sergeant Bateman kept him there at the police station for almost a week, and then you made adverse comments
1133 Ex parte Evers; Re Leary and Another (1945) 62 WN 146 at 147. 1134 Ex parte Evers; Re Leary and Another (1945) 62 WN 146 at 148. 1135 NSW Police News (1945: April at 3). 1136 Dixon (1997: chs 4 and 5). See also NSW LRC (1990: 1-14) on the history of Anglo- Australian law on this topic. 254
about it. He had done it, but the question was to find the bodies, and eventually he took us and showed us the bodies.
Mr Justice McClemens: Did they charge him?
Superintendent Waldon: They had him seven days before they charged him.
Mr Justice McClemens: But I admitted the evidence.
Superintendent Waldon: Yes, but you made some comment about detaining him so long.1137
In 1986, Police Commissioner Avery stated that:
The Supreme Court of this State has taken a broad view of the law in this area and has not regarded it as unfair, or improper, for police to question an arrested person, for a reasonable time, even though it was practicable to place that person before a Justice.1138
Both the exchange in the Herron Committee’s deliberations and the comment by Commissioner Avery illustrate the broad discretions left to police in practice. By the 1970s, it was almost universally acknowledged that the questioning of suspects under implicit restraint was integral to the criminal investigation process, in NSW and elsewhere.1139 In 1966, Professor Shatwell pointed out that ‘everybody concerned acquiesces in illegalities, and it is quite obvious that even the High Court, in hearing an appeal, has known that the accused has been illegally held, and everybody acquiesces in this’.1140
1137 ‘Third Meeting of Sub-Committee, 5th May 1966’ p 16 (NSW Archives Box 6/4505). 1138 Police Commissioner, submission to the Minister for Police and Emergency Services, 29 October 1986 (NSW Archives Box 18/3876). 1139 See, for example: Campbell and Whitmore (1966: 38-39), Council for Civil Liberties (1972: 8), CJLRC (1972: 2-3), Queensland Council for Civil Liberties (1977: 11). 1140 This comment was also made during the deliberations of the ‘Herron Committee’: ‘Second meeting of Sub-committee, 8th March 1966’ p 9 (NSW Archives Box 6/4505). 255
In 1972, one member of the Victorian Parliament explained the position as follows:
It is common knowledge that in theory - it is true not only of the Victoria Police Force but of police forces throughout the Western World - whereas a policeman has no authority in Parliamentary law to take a person to a police station without making some charge against him, in fact the procedure adopted by every policeman is to get the person he desires to interrogate to a police station to question him. He invites the person to go and as a rule the person goes.1141
In the 1970s, the idea of conferring explicit detention powers on police gained ground, and was taken up in the recommendations of the Mitchell Committee, the ALRC and the Lucas Inquiry. These inquiries argued that statutory safeguards were a necessary corollary for this.
Prior to the introduction of the ‘parental notification’ requirement under the Child Welfare (Amendment) Act 1977, the only legal safeguard applicable to arrest was the requirement that a suspect be taken before a magistrate. Safeguards and limitations applicable to arrest and questioning were nominally governed by police guidelines based on the English ‘Judges’ Rules’, first promulgated in 1912 by the Kings Bench Division of English Court of Appeal. The Judges’ Rules were the result of a request by the Chief Constable of Birmingham for guidance in the aftermath of inconsistent judicial rulings on the propriety of different practices. 1142 The Rules provided, for example, that questioning a suspect was permissible, as long as no restraint was exercised, and after cautioning the suspect as to his or her right to silence.1143 The Rules also required that a suspect be given reasonable
1141 Victorian Legislative Assembly Debates v 306 at 4147 (Mr Lovegrove, 14 March 1972). 1142 Dixon (1997: 131-32). 1143 Davidson (1965). 256
assistance with a request to contact a legal adviser.1144 As in England, the guidelines based on the Rules had no legislative force.
All in all, police practices were subject to little external constraint. The worst result to emerge from this was resort to the fabrication of a confession that had never occurred: the practice of verballing.
Lawlessness and Practices: Verbals
Evidence of the practice of verballing can be gained from various sources, not the least of which are the inferences that can be drawn from materials prepared within the NSW Police Force. In 1968, for example, the NSW Police News carried a copy of a lecture instructing NSW detectives on how to go about preparing confessional evidence for court.1145 At best, this revealed an emphasis on winning the case rather than revealing the truth. At worst, it could be read as a guideline on how to get away with fabricating evidence. The lecture suggested that ‘when statements are prepared by police witnesses from written notes taken at the time of an interview with an accused person, each version should, of necessity, be identical’. (There was no directive to ensure accuracy.) The lecture recommended that police who were present during questioning should later ‘collate their knowledge’. The lecture recommended against the taking of detailed notes at the time of questioning: ‘just a brief written note’ was preferable. Rather, full records should be produced after the event, when the matter had been ‘properly discussed and the correct account established by all those involved’.
The lecture added the warning that the content of official police diaries should not conflict with the record of interview. Ensuring accuracy was not the suggested solution to this problem. Rather, in entering details in the diary, brevity ‘should be
1144 See Police Commissioner to Under Secretary, Premier’s Department, 12 June 1962 (NSW Archives Box 6/4502). 1145 NSW PN (1968: May at 20). 257
the keynote’. It is notable that the lecture argued that any record keeping would be an improvement on the practice of most detectives, which was to take no notes of an interrogation at all, relying only on their memory.
Further evidence of troubling police practices was not hard to find. From the 1940s to the 1970s, credible complaints of unlawful and improper police conduct in detaining and questioning suspects had been a recurring feature of policing in NSW (and elsewhere in Australia).1146 The following examples give some flavour of this.
1947 Mr Tully MLA calls for an independent inquiry into the cause of injuries sustained by a Mr Crandell in police custody.1147
1951 Mr Shannon MLA requests the Premier to scrutinise police practices in the context of the improper treatment of a person while in custody.1148
1953 Frank Weekes claims police took him into custody at 4am, and bashed him until he signed a false confession. The Premier’s Department suggests that he raise the matter at his trial.1149
1954 In the context of the Studley-Ruxton controversy, a number of people come forward to allege they had been seriously mistreated and denied their rights while in police custody.1150
1955 Two members of Parliament provide statutory declarations in support of claims by two men that they were bashed while in
1146 See also Finnane (1999). 1147 LA v 2/185 at 227-28 (8 October 1947). 1148 LA v 2/195 at 2172 (22 May 1951). 1149 Sun (1953: 27 August at 7). 1150 Dovey (1954), LA v 3/9 at 97-99 (Lt-Colonel Robson, 31 August 1954) and at 440-50 (Mr Sheahan, Attorney-General, 15 September 1954). 258
custody at a suburban police station.1151 Similar allegations are made two weeks later.1152 Two months later, a group of Labor MLAs press unsuccessfully for an inquiry into police bashings of suspects.1153
1957 Mr Clough MLA alleges that people have been severely intimidated by police seeking a statement from them.1154
1958 The Hon Gertrude Melville raises a string of allegations of police impropriety, including bashings of suspects.1155
1963 A magistrate excludes a confession made by Paul Tweeddale from evidence, holding that Tweeddale ‘might very well’ have been assaulted by police while in custody.1156
1965 A constable admits to subjecting two men to a long interrogation while they were ‘very much under the influence of liquor’.1157 Mr Weilley MLA alleges that a Sydney man received severe internal injuries at the hands of police while in custody in Central Police Station.1158 A magistrate criticises police methods of obtaining confessions. The Daily Telegraph expresses support for these comments, arguing the public has a ‘very unpalatable impression of the way the police sometimes set about obtaining confessions’.1159 Commissioner Allan orders inquiries into two other cases in Sydney courts in which criticism had been directed at police practices in obtaining confessional
1151 DT (1955: 10 March at 6). 1152 DT (1955: 27 March at 3). 1153 DT (1955: 3 June at 13). 1154 LA v 3/21 at 983 (8 October 1957). 1155 See chapter 2. 1156 LA v 3/47 at 4635 (Mr Cutler, 3 September 1963). 1157 SMH (1965: 26 June at 4). 1158 See LA v 3/59 at 1964 (Mr Weiley, 16 November 1965). 1159 DT (1965: 10 June at 2, 10). 259
evidence.1160
1967 The NSW Council for Civil Liberties alleges that in a number of instances police have bashed suspects and fabricated confessions.1161
1972 Two Sydney constables are charged with murder, as a result of the alleged fatal bashing of a suspect. Chief Stipendiary Magistrate Murray Farquhar dismisses the charges.1162
A persuasive critique of the practices of NSW Police came in a submission by Sydney barrister, ML Rutherford to the ALRC’s Criminal Investigation inquiry.1163 Rutherford, who had been a NSW Police prosecutor between 1956 and 1965, offered a detailed description of the manner in which confessions were fabricated by police and then accepted by the courts.
The starting point would be that a person arrested for an offence would refuse to confess to the offence. Police would then set out to manufacture a confession, something that happened frequently, according to Rutherford. This might be because police believed that the suspect was guilty, and had therefore decided that justice would be better served by securing a conviction by means of a confession. This was most likely to be the case for a serious offence. Alternatively, police might be indifferent to the person’s guilt or innocence, but want a quick and easy end to the case. This was more common in respect of minor offences.1164
The alleged confession would be included in a typed record of a question and answer session between police and the suspect that had never actually taken place. To lend the typed record of interview greater credibility, extraneous facts that
1160 SMH (1965: 10 December at 5). 1161 Civil Liberty (1967: 11 at 2-5). 1162 SMH (1972: 18 November at 19). 1163 Rutherford (1975). 1164 Rutherford (1975: 2). 260
would be assumed to be known only to the suspect would be included in the record, such as the person’s date of birth.1165 The admissibility of any such record of interview in NSW courts was underpinned by the principle espoused in R v Ragen.1166 In this 1964 case, Justice McClemens of the NSW Supreme Court had held, in essence, that an unsigned record of interview could be accepted as evidence of a confession. Although that case had concerned a signed record, it was subsequently used as authority for the admission of an unsigned record.
Rutherford went on to argue that most judges would readily admit any record of interview into evidence, and would give the defence little encouragement to challenge its admissibility.1167 Rutherford placed a large part of the blame for the survival of a system of institutionalised verballing at the feet of the judiciary. He argued that, overall, the judiciary’s primary objectives had been to ensure police were not handicapped in fighting crime, and that public confidence in police was preserved. Pursuant to these objectives, judges accepted police evidence in almost all cases, and were reluctant to uphold any rights on the part of the accused that might constrain police actions.
Rutherford argued that it was almost impossible for a suspect to challenge a fabricated statement, when the strong faith of the judge and jury in police evidence generally was combined with the fact that third parties were effectively barred from interrogations, denying an accused any chance of corroboration for their account. Furthermore, the persuasiveness of the police account of events was enhanced by their considerable experience in presenting their version of events in court.1168 Rutherford argued that reliance on confessions had encouraged extreme laziness on the part of police. Without a suspect to interview, an investigation would often become ‘farcical’. For example, it was ‘quite rare to find any attempt to obtain fingerprint evidence at the scene of a crime’.1169
1165 Rutherford (1975: 6). 1166 (1964) 81 WN (Pt 1) 572. 1167 Rutherford (1975: 3). 1168 Rutherford (1975: 6). 1169 Rutherford (1975: 7). 261
Rutherford’s analysis was sober, detailed and persuasive, and it is supported by other sources. Philip Arantz is another who detailed the prevalence of verballing. In a 1993 book, he recalled having been directed during the 1960s to verbal a murder suspect by the head of the Criminal Investigation Branch. He was also castigated for creating the ‘dangerous precedent’ of allowing an independent third party to be present while he questioned the suspect. For his troubles, he was also later criticised by the judge when the matter came to trial, for having questioned the suspect for so long.1170
It is important to recognise that there are shades of grey between a ‘verbal’ and an accurate record of confession. Where police prepare a written statement on the basis of questions and answers, they are necessarily interposing their own words and emphasis in the recording of the confession. This interposition can range from a moderate re-interpretation to a complete re-statement. However, all too often, the NSW experience extended to deliberate, extensive, fabrication.
One of the most bizarre aspects of all of this was the willingness of courts to believe (or pretend) that a ‘remarkably high’ proportion of suspects were willing to confess their crimes to police, but would then refuse to sign the confession they had made.1171 Tim Anderson, a victim of notorious instances of police fabrication of evidence (and prosecution misconduct) in relation to the bombing of the Hilton Hotel in 1978, argues that:
defence lawyers were certainly aware of it [ie, the practice of verballing]. They weren’t as outspoken as they could be. They were intimidated… the whole criminal law fraternity was aware of it, because pretty much everyone would complain about it. The same coppers would be doing it all the time. Lawyers would comment on
1170 Arantz (1993: 39). 1171 Civil Liberty (1980: 90 at 2). Police Commissioner Norm Allen had told the Herron Committee that there were ‘many persons’ in this category: ‘Twelfth meeting of the Full
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how effective a verballer Roger Rogerson was, in those days for example.1172
Allegations of systemic police ‘verballing’ were not unique to NSW. In 1976, one Brisbane lawyer had written to the Australian Law Journal expressing serious concern about the high proportion of cases in which defendants were found guilty largely on the basis of alleged oral admissions that they denied making. Such admissions were accepted into evidence with ‘effortless ease’. The correspondent urged other lawyers to ‘stand up and be counted’ on the need for taping or independent third parties to curtail verballing.1173 The Beach and Lucas Inquiries and then the Stewart ‘Organised Crime’ Royal Commission all found police fabrication of evidence to be a widespread problem.
Mark Finnane has traced the broader history of major police malpractice controversies in Australia. Finnane notes that a common theme of these incidents was over-reliance by police and prosecutors on confessional evidence, encouraged by judicial reluctance to exclude confessional evidence, except in cases of demonstrable police violence.1174 Finnane points out that by the mid-1970s:
criticisms… of police reliance on too easily obtained confessional evidence were broadened into a more sustained critique… of the phenomenon of the police verbal. The frequency of use of confessional evidence as a basis for conviction was subjected to scrutiny by academic lawyers, criminologists and civil liberties groups.1175
Nowhere was this scrutiny more intense than in NSW, where there was a sustained and vigorous campaign to curtail the verbal.
Committee, 26th November 1970’ p 18 (NSW Archives Box 6/4505). 1172 Tim Anderson Interview, 17 September 1998. 1173 ‘Drug “Pushers” and the Law’, Letter to the Editor (1976) 50(11) Australian Law Journal 596. 1174 Finnane (1994: 84-92). 1175 Finnane (1994: 91). 263
Anti-Verbals Campaign and Judicial Response
From the 1950s to the 1970s, numerous proposals had been put forward for closer regulation of detention and questioning by police. The most common proposals were that an independent third party be required to be present during the obtaining of a confession,1176 or that confessions be tape recorded. As early as 1955, the NSW Police News had carried a glowing report about an overseas trial of a tape recorder to take a statement from a victim, which produced evidence that was ‘safer and more trustworthy’. Claims that taped evidence could be doctored were said to be ‘easily refuted’.1177 In 1957, a tape recorded conversation was accepted in evidence in a NSW court.1178 Yet the NSW Police Force did not take up the technology, and during the 1960s there was significant criticism of this failure. A proposal in the early 1960s that taping be introduced1179 was rejected by the Premier who cited the potential for tampering.1180 A number of speakers at the 1963 United Nations seminar had urged greater use of recording technology.1181 In 1965, the Daily Telegraph urged the introduction of taping.1182 Campbell and Whitmore did the same in their 1966 book, Freedom in Australia.1183
As noted in chapter 3, Beach, Lucas and the ALRC all encouraged tape recording of confessions by police. Each argued that this would assist police by providing unequivocal proof of a confession, while protecting a suspect against fabrication and misrepresentation. In turn, disputes at trial as to whether an alleged confession had actually been made would be greatly reduced. Police and their supporters in NSW and other States argued strongly against taping (especially
1176 See, for example, DT (1955: 3 June at 13), Chesterman (1965), SMH (1970: 14 January at 2), Squire (1975). 1177 NSW Police News (1955: January at 24-25). 1178 R v Travers (1957) 74 WN (NSW) 484. 1179 LA v 3/42 at 1149 (Mr Darby, 23 October 1962). 1180 LA v 3/52 at 110 (Mr Darby, 26 August 1964). 1181 See chapter 2. 1182 DT (1965: 10 June at 2). 1183 Campbell and Whitmore (1966: 56). 264
under legislative compulsion), citing potential for technical problems and falsification and the fact that confessions might be made at unpredictable times and places when a tape recorder would not be available.1184
The debate about tape recording was to continue over many years nationally and internationally, but in NSW it would be spurred on by something unique - a formal, well organised, and sustained campaign against the prevalence of verballing. This had commenced in the early 1970s, led by some of those who had been verballed.1185 The NSW Prisoners’ Action Group gave focus to these efforts. It had, for example, made a submission to the ALRC Criminal Investigation inquiry proposing that a suspect be entitled to the presence of a friend during an interrogation.1186
In January 1980, a formal ‘Campaign Against Police Verbals’ was launched, with the involvement of a range of radical and reformist organisations, including the Prisoners’ Action Group, the Australian Legal Workers Group, the Redfern Legal Centre, and Women Behind Bars. A group of legal academics and law students, from the relatively new and radical Law Faculty at the University of NSW, assisted with the campaign.1187 Three hundred people attended a meeting at Redfern Town Hall on 12 March 1980 to discuss the problem of verbals. The meeting issued a unanimous motion calling for legislation to render statements made by a person out of court inadmissible against the person unless tape recorded or made in the presence of an independent person. On 26 March, inmates in 10 NSW prisons went on ‘strike’ in protest against police verballing. On the same day, members of the campaign staged a protest outside the NSW Parliament.1188
The campaign faced significant obstacles. By 1980, Australian police had successfully beaten back every attempt to regulate the questioning of suspects,
1184 See, for example, Institute of Criminology (1973a: 32, 64-65, 118), Beach (1978: 82), Queensland Police Department (1977: 31), Queensland Police Union (1977: 7-10). 1185 Brett Collins Interview, 27 August 1998. 1186 ALRC (1975c: paras 651-56), SMH (1975: 22 July at 8). 1187 David Brown Interview, 11 May 1997.
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with the sole exception of the ‘parental notification’ requirement introduced under the NSW Child Welfare (Amendment) Act 1977. Even if sections of the public had doubts about police propriety, persons who had been convicted of serious criminal offences were not well placed to win any contest of credibility in a public debate. In August 1980, a senior officer of the NSW Attorney-General’s Department warned that if the campaign had to rely on allegations from criminals, rather than proven instances of verballing, the Police Association’s ‘reaction to the campaign will be hard to beat’.1189 Yet judicial acquiescence in verballing made it difficult to produce objective proof of verballing.
Still, there was a range of factors that lent the campaign credence. The findings of Beach, Lucas and Stewart as to the existence of verballing and the recommendations of the ALRC in favour of taping were repeatedly emphasised in campaign materials.1190 Although the ALRC made no findings on this point, during preparation of the report Gareth Evans had emphasised the need to address the ‘serious’ verballing problem.1191 Subsequently, Justice Kirby had been a keynote speaker at the Redfern meeting in March 1980.1192 In the case of the Beach inquiry, there was a further direct link. Some of those who had helped bring about the Beach inquiry and presented it with evidence had subsequently moved to Sydney and become involved in the anti-verbals movement.1193
The campaign was also keen to draw attention to concerns expressed by Justice Gibbs in the High Court about police use of unsigned records of interview. In the Driscoll case in 1977, Justice Gibbs had suggested that an unsigned record did not constitute meaningful evidence of a confession:
1188 Brown (1987: 348-49). 1189 Letter from P Alister to D Brown, 11 August 1980 (Personal papers of David Brown). 1190 ‘Police Verbals - Background Information, May `1980’ pp 1-7; ‘What is Verbal’? (pamphlet, 1981) ‘Stop the Verbal: Background Discussion Paper on Police Verbals’, 9 November 1984, pp 3-4, 18. (All from the private papers of David Brown). 1191 See ALRC (1975e: 9, 16). 1192 Justice Kirby to John Basten, 12 March 1980; John Basten to Justice Kirby, 14 March 1980. (Personal papers of David Brown). 1193 David Brown Interview, 11 May 1997. 266
If the police are prepared to give false testimony as to what the accused said, it may be expected that they will not shrink from compiling a false document as well… If the police wish to have supporting evidence of an interrogation there are other methods, such as tape recording, or the use of a video tape, which would be likely to be more effective than production of unsigned records of interview.1194
Only two years before, the High Court had refused leave to appeal in a case in which a central issue was whether an alleged confession had been fabricated by Victorian police.1195 Soon after, the Beach Inquiry established a strong case that the confession was indeed fabricated.1196 It is arguable that this had encouraged some senior judges, including Justice Gibbs, to be more sceptical of uncorroborated police evidence.
The High Court’s decision in Driscoll had provided a potentially significant impetus for reform in NSW.1197 The High Court had expressed concern at the willingness of NSW courts to accept unsigned records of interview into evidence and had granted a retrial to Driscoll on the basis that such a record should not have been accepted as evidence in his case. While the immediate response to the decision suggested that reliance on unsigned records of interview might be significantly curtailed,1198 the impact of the decision was blunted by the response of police and judicial officers. To reduce reliance on ‘records of interview’ police moved to tendering details of confessions allegedly recorded in their own notebooks.1199 In any case, many NSW magistrates continued to accept unsigned records of interview as evidence.1200
1194 Driscoll v R (1977) 137 CLR 517 at 542. For examples of the campaign against police verbals citing the Driscoll case in support, see ‘Police Verbals - Background Information, May 1980 pp 7- 8; Civil Liberty (1980: 90 at 3), ‘What is Verbal’? (pamphlet, 1981). (All from the private papers of David Brown). 1195 Burns v R (1975) 132 CLR 258. 1196 Aronson and Hunter (1995: 212-13). 1197 Driscoll v R (1977) 137 CLR 517 at 542. For a contemporary analysis of the decision, see Sallmann (1978a). 1198 SMH (1977: 11 August at 2). 1199 Zdenkowski and Brown (1982: 347). 1200 Nyman (1983: 327). 267
Further questions were raised by a study of 147 NSW District Court cases in the early 1980s. In 96% of these cases, the defendant had made a confession or damaging statement when interviewed by police.1201 Significantly, this was much higher than the rate recorded by any overseas study. Confessions and incriminating statements were even more likely for the most serious offences.1202 In the cases where the accused testified, almost 50% of trial time was spent ‘determining the admissibility or veracity of confessional evidence’.1203 The study also noted the use of inexplicably formal language in recorded confessions by persons with little education or literacy (for example: ‘On the night you have mentioned, I, in the company of another man, broke and entered…’).1204
Evidence of verballing continued to mount. In 1983, George Peterson MLA detailed three recent cases. In one, a man who ‘confessed’ to a murder was proven to have been interstate at the time. In the second case, a man who had ‘confessed’ was acquitted by the jury. In the third case, a defendant was acquitted and awarded damages after a hand-writing expert proved that ‘confessions’ had been written into a statement after he had signed it. Peterson went on to allege that in ‘some areas such as Wollongong and Campbelltown… police verbals are very much the rule’.1205 As late as 1987, one defence lawyer described verballing as being at ‘epidemic proportions’.1206
The ‘rotten apple’ theory was explicitly challenged by those campaigning against verballing.1207 In 1984, a legal academic involved in the anti-verbals campaign described verballing as ‘widespread’ ‘systematic’ and ‘institutionalised’.1208 The Council for Civil Liberties agreed, arguing that virtually all ‘fair-minded lawyers
1201 Stevenson (1982: 108-9). 1202 Stevenson (1982: 140-41). 1203 Stevenson (1982: 107). 1204 Stevenson (1982: 107). 1205 LA v 3/175 at 239-41 (18 August 1983). 1206 NSW LRC Police Powers of Detention and Investigation after Arrest Reference ‘Informal Consultations - Initial Analysis of Responses May - July 1987’ p 8 (NSW Archives Box 18/3874). 1207 See ‘Stop the Verbal: Background Discussion Paper on Police Verbals’, 9 November 1984, p 17. (Personal papers of David Brown). 268
with experience in criminal law will acknowledge that the practice not only exists but it is widespread’.1209
Close examination of the precise wording in unsigned records of interview continued to be an effective way to demonstrate the likelihood that a confession had been fabricated. Beach had done this to dramatic effect, showing the recurrence of distinctive words and phrases in statements allegedly made by a diverse array of Victorian defendants. This technique was also used by counsel defending Tim Anderson, Paul Alister and Ross Dunn in the first trial relating to the bombing of the Hilton hotel. Counsel showed that the speech patterns in the alleged records of interview were totally unlike those used by Anderson, Alister and Dunn; and that nine identical phrases were found in multiple confessions, suggesting they were written together.1210
Those seeking to raise consciousness of verballing employed a diverse array of tactics. A central objective was to ‘make verbal a household word’.1211 Following the 1980 ‘prisoners’ strike’, representatives of the prisoners were permitted a meeting with a senior officer of the Attorney-General’s Department.1212 Public meetings were held in 1980 and 1984. Those involved in the campaign also circulated petitions and submitted them to Parliament, produced and distributed pamphlets and booklets1213 and spray painted anti-verbals messages and the ‘blue V’ on court buildings, police headquarters and elsewhere.1214 Some former prisoners handed out leaflets outside courts, to alert potential jurors to the practice of verballing and to encourage them to treat alleged confessions with caution.1215 Tim Anderson recalls that there was:
pamphleting of about ten to twelve jury panels up at Darlinghurst
1208 David Brown - ‘Stop the Verbal’, 1984 (Personal papers of David Brown). 1209 Civil Liberty (1985: 115 at 8). 1210 LA v 3/184 at 4472 (Mr Peterson MLA, 7 March 1985). 1211 David Brown Interview, 11 May 1997. 1212 Anderson (1989: 63). 1213 Anderson (1985: 246-48). 1214 Brett Collins Interview, 27 August 1998; SMH (1985: 5 June at 17).
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Courts in the early 80s. When we knew that there were verbals in cases involved then we’d go and hand out pamphlets, not mentioning the case at all. Just the issue, and there were a large number of acquittals in those cases and the idea was that we were going to inoculate some of these juries against this sort of practice.1216
Some of those involved were ultimately imprisoned for contempt of court, a development that was symptomatic of the broader conflict with the judiciary that was central to the anti-verbals campaign. Trial judges and magistrates were heavily criticised for their willingness to allow confessions into evidence when there was no evidence independent of police to show the confession had been made.1217 The NSW Court of Criminal Appeal was criticised for having shown ‘little enthusiasm for curbing verbal[s]’.1218 Law lecturer David Brown, who was involved in the campaign, argued that judicial acquiescence in verballing was not merely a question of ‘naivety’. Echoing some of the points that Rutherford had made in his submission to the ALRC, Brown argued that many judges, magistrates and lawyers were willing to accept verballing, out of a belief that it was essential to side with police to maintain law and order and that police would only verbal the guilty.1219 More recently, David Dixon has persuasively criticised the NSW judiciary for encouraging juries to accept police evidence and dismissing the realities of verballing and other misconduct.1220
Chief Justice Street exemplified those judges who left themselves open to such criticism. In a 1978 case, he blasted defence counsel in a criminal trial for suggesting that an unsigned record of interview be excluded from evidence. The suggestion that such evidence was unreliable was, he said, an ‘offensive’,
1215 See SMH (1981: 5 May; 1982: 2 March), Anderson (1985: 247). 1216 Tim Anderson Interview, 17 September 1998. 1217 See Civil Liberty (1980: 90 at 2-3), LA v 3/182 at 1935 (Mr Peterson, 16 October 1984), ‘Stop the Verbal: Background Discussion Paper on Police Verbals’, 9 November 1984, p 12 (Personal papers of David Brown). 1218 ‘Stop the Verbal: Background Discussion Paper on Police Verbals’, 9 November 1984, p 26. (Personal papers of David Brown). 1219 Brown (1987: 350). 1220 Dixon (1997: ch 5, especially 186-88, 193-95). 270
‘unpalatable’ and ‘wholly unacceptable’ denigration of the police.1221
Progress in securing reform was slow. In 1980 and 1981, Attorney-General Frank Walker suggested that legislation to govern the questioning of suspects was being considered.1222 However, no such legislation emerged. Walker later argued that while he was ‘angry’ about verballing, he feared that in the prevailing climate, any legislation that secured Parliamentary support would necessarily curtail rather than advance civil liberties, so it was better not to try to legislate.1223
In the mid-1980s, the NSW Police Association was still firmly against the enactment of any legislative obligation to tape.1224 Developments elsewhere suggested that the best way forward might be to introduce tape recording, in the absence of a legislative requirement. Tape recording of interviews had been trialed in Victoria and the Northern Territory.1225 The introduction of taping without legislation was a move that some in the anti-verbals campaign feared. David Brown was concerned that if police could ‘pick and choose’, verbals would continue as before.1226 Tim Anderson and academic Russell Hogg warned that police might manipulate taping, by using threats and intimidation to secure a recorded confession which would then be impossible to challenge.1227
The Prisoners’ Action Group had often emphasised the merits of requiring an independent third party presence, rather than taping,1228 perhaps because of fear that taped evidence would indeed provide compelling evidence of guilt.1229 Still, as
1221 R v Burke (30th November 1978, unreported) cited in ‘Police Verbal’ (1981) p 37. (Personal papers of David Brown). 1222 Anderson (1989: 64), LA v 3/166 at 1328 (2 December 1981). 1223 Frank Walker Interview, 18 June 1997. 1224 NSW Police News (1984: March at 2), SMH (1985: 5 June at 17). 1225 ‘Police Verbals - Background Information, May 1980 p 11 (Personal papers of David Brown), Anderson (1989: 32-33). 1226 ‘Stop the Verbal: Background Discussion Paper on Police Verbals’, 9 November 1984, p 16 (Personal papers of David Brown). 1227 Anderson (1989: 33). Hogg’s views are cited in Civil Liberty (1985: 115 at 2). 1228 ALRC (1975c: paras 651-56), SMH (1975: 22 July at 8; 1985: 5 June at 17), Anderson (1989: 63). 1229 However, there were doubts about taping even within the Council for Civil Liberties: see Civil Liberty (1981: 96 at 2). 271
voluntary taping appeared to be drawing closer in 1985, David Brown expressed the view that it was too late for the reform movement to completely resile from support for this move.1230
The move towards taping reflected the fact that by the mid-1980s, in large part as a result of the anti-verbals campaign, the verballing problem was receiving widespread attention. In 1984, Attorney-General Paul Landa acknowledged ‘grave concern’ about unsigned records of interview.1231 In 1985, the number one priority for the NSW Parliament identified by the NSW Council for Civil Liberties was that it should require taping of police interviews and prohibit admission of confessions evidenced only by police testimony.1232 Television programs such as the ABC’ ‘Scales of Justice’ treated verballing as a simple reality of Australian policing, which both reflected and contributed to widening acceptance of the existence of verballing.1233
Tape Recording
While the campaign against police verbals was on foot in NSW, developments in other jurisdictions were building the case for the electronic recording of confessions. In 1979, the NSW Police News carried a long article detailing the proposed trial of audio recording in England, as proposed by the Royal Commission on Criminal Procedure.1234 This was despite the fact that the London Metropolitan Police Commissioner had argued at length against taping in his submission to that Royal Commission.1235 Indeed, it has been argued that the Royal Commissioners backed away from firm recommendations on taping, because they feared police would resist so vigorously that their whole report
1230 See Civil Liberty (1985: 115 at 6). 1231 LA v 3/183 at 2970 (31 October 1984). 1232 Civil Liberty (1985: 119 at 30). 1233 ‘Stop the Verbal: Background Discussion Paper on Police Verbals’, 9 November 1984, p 12 (Personal papers of David Brown). 1234 NSW Police News (1979: August at 275-78). 1235 See Justice (1979: 19). 272
would be sunk.1236 A trial was a softer option.
In Australia, some senior police were moving to support tape recording. In 1981, the Australian Federal Police Commissioner Sir Colin Woods announced that the Federal Police would trial the use of tape recorders in anticipation of the enactment of the Criminal Investigation Bill 1981.1237 After returning to England, Woods urged the comprehensive introduction of audio or video recording, citing the need to improve public and judicial confidence in the credibility of confessional evidence. He argued that where taping had been tried, police had been well satisfied that it had not inhibited confessions.1238 The South Australian Police Commissioner subsequently declared that ‘recorded interviews are inevitable and will be a great advance for the criminal justice system’.1239
The continuing use of recording in a small number of cases in Victoria provided further evidence of the ‘virtues of tape recorded evidence’.1240 In 1985, the television program ’60 Minutes’ ran a story showing the effectiveness of video taping in New York. One solicitor, writing in the Law Society Journal, argued that no one who had seen this ‘dramatic’ demonstration of the effectiveness of taping could doubt its desirability.1241
Reports in the NSW Police News during this period underlined the Police Association’s continued hostility to taping, but also the increasingly narrow ground on which this opposition stood. In 1979, it had carried a report that suggested, point blank, that tape recorders were ‘not practical for police interrogations’.1242 In 1981, it emphasised the ‘problems’ that had been found in the use of recording in England, but also carried reports showing the considerable success of the English trials.1243 In 1982 it reproduced an article by English jurist
1236 Baldwin and Kinsey (1982: 196). 1237 NSW Police News (1981: October at 5). 1238 Woods (1983). 1239 Hunt (1985: 11). 1240 Crim LJ (1981: 125). 1241 LSJ (1985: 23(7) at 548). 1242 NSW Police News (1979: October at 355). 1243 NSW Police News (1981: October at 6). 273
Lord Salmon that described the introduction of taping as ‘absolutely essential’.1244 In 1983, it again argued that there were ‘problems’ with recording, yet carried further evidence of successful English usage.1245 The fact that the NSW Police News carried positive as well as negative reports on taping suggested a softening of its position. There had been a similar development in England, where by 1983 the police attitude was said to have ‘notably softened’, from firm resistance to resigned acceptance: ‘there are even those who are enthusiastic’.1246
In 1984, NSW Police Association Vice President Lloyd Taylor was still emphasising long-standing police concerns, including the cost and difficulty of transcription, the likelihood that a recorded suspect would ‘clam up’ and the difficulties created by unanticipated confessions out in the field. However, Taylor did concede that if these issues could be resolved taping procedures might assist police to ‘assert their integrity before the Courts and the public’.1247
The Government was inching forward. During 1981, Attorney-General Frank Walker had received numerous representations from various Branches of the NSW Labor Party, calling for legislation to curtail the practice of verballing, for example, by declaring unsigned or unverified records of interview to be inadmissible.1248 At a meeting with representatives of the Party’s Legal and Constitutional Committee in June 1981, Walker indicated an intention to introduce audio-visual recording in the ‘medium term’.1249
Behind the scenes, the Attorney-General’s Department had developed a proposal for legislation to render unsigned records of interview inadmissible, but the proposal was abandoned in the face of opposition from the Police Association. Instead, in late 1982 Walker put forward a proposal, which the Government
1244 Salmon (1982: 16). 1245 Merricks (1983: 13). 1246 Merricks (1983: 15). 1247 Taylor (1984). 1248 ‘Legal and Constitutional Committee Recommendations, 1967-86’ (ALP Archives Box ML MSS 5095/511 No 2196). Among the Branches to make representations on the issue were the Summer Hill, Fairfield and Young Labor Branches. 1249 ‘Legal and Constitutional Committee Recommendations, 1967-86’; ‘Minutes of meeting of the ALP Legal and Constitutional Committee at Mr Frank Walker’s Office on 2 June 1981’ (ALP Archives Box ML MSS 5095/511 No 2196). 274
accepted, for a Consultative Committee to assist the Attorney-General’s Department to develop proposals concerning the law governing confessional evidence, and in particular the use of tape recorders. The committee would comprise relevant interest groups, including the NSW Police Force and Police Association.1250 The attention given to this issue was undoubtedly a result of the pressure mounted by the anti-verbals campaign.1251
The Consultative Committee on Police Interrogations did not undertake its deliberations until late 1983, one of the many delays that was to dog attempts to secure the introduction of recording. The committee consisted of representatives of the Police Force, Police Association, Bar Association, Law Society, Council for Civil Liberties and Chief Magistrate.1252 More radical anti-verbals campaigners, such as the Prisoners’ Action Group, were not represented.
After considering the views put forward by this committee, the Attorney- General’s Department prepared a report and presented it to the Government in 1984. There was then a further delay before the public release of the Department’s report in April 1985. The report proposed quite radical reform, including the introduction of video taping of interviews, which would be mandatory in the case of alleged indictable offence, except with the prior approval of a magistrate, or if the suspect refused taping and a third party was present, or in the case of mechanical failure. Any confession obtained otherwise than in accordance with these rules would be strictly inadmissible. To minimise the risk of tampering, the report recommended that special tapes be used, that a 24 hour clock be on screen at all times, and that the tape would have to be lodged at the nearest Local Court within 24 hours. The report also proposed a broader statutory framework to regulate questioning. This would explicitly preserve the right to silence and clarify a suspect’s right to have a lawyer present during questioning. There would be no power to detain suspects for questioning.1253
1250 Confidential Document (Frank Walker Private Papers). 1251 See, for example, the comments of Police Association President Lloyd Taylor: Taylor (1986). 1252 LSJ (1985: 23(4) at 320), SMH (1985: 6 November at 3). 1253 See McClintock and Healey (1987). 275
The Council for Civil Liberties expressed support for these recommendations.1254 For others, however, the balance was not quite right. The Prisoners’ Action Group reiterated its preference for the presence of an independent third party rather than recording.1255 The NSW Police Force suggested that it only favoured the recording of the read back of a completed statement rather than live recording of interviews.1256 Opinion within the Police Association appeared divided. Long- time Secretary Bob Page was initially very critical of the proposals, but Vice- President Lloyd Taylor (who had been on the consultative committee) was more positive. Taylor persuaded the Association to give in principle support to audio/visual recording,1257 subject to an extensive list of preconditions. These included that taping be discretionary and that non-taped confessions be admissible, that appropriate training and equipment be provided to police, that taping be introduced on a permanent basis, and that the Association be involved in implementing and monitoring the scheme. 1258
Most ambitiously, the Association also sought abolition of the right to silence and ‘substantially’ increased police numbers ‘to cope with Recorded Interviews’.1259 Taylor himself was later to agree that this was probably an excessive list of preconditions.1260 However, the Association had moved a long way from the outright rejection of taping in the 1970s. In a parallel development at this time, the Queensland Police Union was also softening its stance on the Lucas Committee recommendations, including on taping, in response to continuing criticisms of the integrity and professionalism of Queensland police.1261
After considering this first report, the Government sought a follow up report from the Attorney-General’s Department, focusing on the technical aspects of
1254 Civil Liberty (1985: 119 at 32). 1255 SMH (1985: 5 June at 17). 1256 SMH (1985: 6 November at 3). 1257 Howe (1988: 449), Taylor (1986). 1258 ‘Electronic Recording of Police Interviews’, Draft Policy Document of the Police Association of NSW, 1985. (Papers of Lloyd Taylor). 1259 ‘Electronic Recording of Police Interviews’, Draft Policy Document of the Police Association of NSW, 1985. (Papers of Lloyd Taylor). 1260 Lloyd Taylor Interview, 5 June 1997. 1261 Cribb (1978: 114). 276
implementing an audio or video taping system.1262 This implementation report was completed in 1986, and revisited many of the policy issues canvassed in the first report. It reiterated that substantial cost savings could be expected from the introduction of electronic recording.1263 To control costs, the report recommended that transcription be generally avoided unless and until a matter came to trial.1264
The implementation report noted there had been significant developments in a number of jurisdictions. The Victorian Government had foreshadowed legislation to require tape recording of confessions. South Australian police had announced a taping trial. In England, extensive trials from 1983 to 1986 had shown taping did not inhibit confessions and in fact resulted in more efficient interviews. Concerns about malfunctions and suspects refusing to be taped had proven groundless, and there had been no real problems with audibility even without special sound proofing equipment. English police were said to be increasingly enthusiastic about taping.1265 Scottish and Canadian trials had been just as positive, and in Scotland, police involved in the trials had chosen to continue using the recording equipment after the trial ended.1266
While acknowledging that legislation was not a prerequisite for taping, the Attorney-General’s Department considered that the introduction of a legislative framework was desirable, once taping was up and running. This was particularly so that ‘unreasonable failure to adhere to the system will result in the inadmissibility of any evidence thereby obtained’.1267 In an ironic reversal of the feared situation under the Commonwealth’s Criminal Investigation Bills, Federal police in NSW would be subject to the recording rules.1268
1262 LA v 3/188 at 10923 (27 November 1985), LSJ (1985: 23(11) at 866). 1263 Criminal Law Revision Division (1986: 2-3). 1264 Criminal Law Revision Division (1986: 69-71). 1265 One reason for this was that the Police and Criminal Evidence Act 1984 (UK) was taken to require that a written record of interview be full and contemporaneous. The presence of third parties (for example, lawyers) made it difficult to evade this obligation. Audio-visual record had therefore become the easier and more convenient of the available options (Recollection of Professor David Dixon, 2 November 2001). 1266 Criminal Law Revision Division (1986: 3-9). See also Grant (1986, 1987) on the Canadian trial. 1267 Criminal Law Revision Division (1986: 75). 1268 Criminal Law Revision Division (1986: 59-60). 277
In December 1986, Attorney-General Sheahan announced that he would soon recommend to Cabinet that it approve legislation to provide for the audio- recording of interviews.1269 Opposition legal affairs spokesman John Dowd strongly backed the proposals.1270 However, there were further delays ahead, with cost being a major sticking point. Sheahan’s endorsement of reform in late 1986 had been expressed as being subject to funding.1271 The Department’s implementation report had estimated the costs of introducing a comprehensive audio taping system at $3-3.8 million up front and then $350 000 to $450 000 per year.1272 Against this, both of the Department’s reports predicted that these costs would be more than offset by reducing court time taken up with challenges to confessional evidence. The Attorney-General had endorsed this view. 1273
In early 1987, the Labor Government was voted out of office. Cost again emerged as a barrier to implementation of audio recording by the new Liberal/National Party Government led by Nick Greiner.1274 This had also been a major issue in England.1275 The Attorney-General in the new Government, John Dowd, recollects that another cause of delay during this period was obstruction from the Police Force, with a renowned verballer having been given primary responsibility for progress towards implementation.1276 Dowd and the Police Minister Ted Pickering both pressed officials for faster progress.1277
In mid-1988, the Queensland Government approved the expenditure of $3 million to put in place facilities for the tape-recording of all police interviews with persons suspected of indictable offences.1278 Taping was to be introduced without a legislative framework. The timing of the decision, if not the decision itself, was
1269 SMH (1986: 18 December at 2). 1270 SMH (1986: 18 December at 2), NSW Police News (1987: January at 7). 1271 SMH (1986: 18 December at 2). 1272 Criminal Law Revision Division (1986: A7). 1273 SMH (1986: 18 December at 2). 1274 Howe (1988: 445), LC v 3/201 at 969 (Hon E P Pickering, 1 June 1988) and v 2/202 at 2192 (Hon E P Pickering, 2 August 1988). 1275 Merricks (1983). 1276 Justice John Dowd Interview, 16 May 1997. Tim Anderson alleges there was more than one: Anderson (1992: 78). 1277 Justice John Dowd Interview, 16 May 1997. 1278 Johnstone (1992: 391), SMH (1988: 5 September at 5). 278
prompted by the dramatic revelations before the Fitzgerald Inquiry in that State of police verballing on a massive scale. 1279 In addition, the Queensland Director of Public Prosecutions, Des Sturgess QC, had warned the Government that the Queensland criminal justice system was in ‘grave danger’ because juries were losing all faith in police evidence and were declining to convict defendants in a large number of cases.1280
The NSW Opposition seized on the Queensland announcement, calling on the Government to pursue the issue. 1281 Police Minister Ted Pickering emphasised his personal commitment to audio-visual recording, and promised ‘decisive’ action as soon as technical details could be resolved. By now, the National Police Research Unit, acting on behalf of police forces nationally, was evaluating different options for taping equipment.1282 The Police Federation of Australia had also formally expressed support for audio and video taping.1283
In mid-1989, senior NSW police expressed their support for the introduction of electronic recording. The Police Commissioner announced that he was planning special training for police to improve their interview technique. Once again, funding was said to be the only barrier to Cabinet approval.1284 Around this time, Victoria enacted its legislation to regulate questioning and require electronic recording. Two months later, the first equipment for video taping interviews in NSW was unveiled at the headquarters of the State Drug Crime Commission. Commission chairman Judge Thorley expressed confidence that recording would significantly reduce the cost and length of some criminal trials.1285
In August 1990, the Police Minister confirmed that the Government had approved the spending of $7 million to equip NSW police stations with video and audio
1279 SMH (1988: 5 September at 5). 1280 DPP Bulletin (1988). 1281 LC v 3/204 at 1748 (Hon E P Pickering, 22 September 1988), NSW Police News (1989: March at 6). 1282 LC v 3/204 at 1748 (Hon E P Pickering, 22 September 1988). 1283 NSW Police News (1989: September at 15). 1284 DT (1989: 22 May at 10). 1285 SMH (1989: 28 July at 2). 279
recording equipment.1286 The budget estimates issued by the Government stated that the introduction of electronic recording of police interviews would deliver ‘both greater efficiency and greater integrity’.1287 Video recording facilities would be installed in some police stations, with other stations receiving audio equipment that would simultaneously record on three tapes, one each for the defendant, police and court.1288 As in Queensland, but unlike Victoria, there would be no legislation or code of practice, and the police would prepare their own guidelines on when and how recording should be undertaken.1289
When it was announced that taping would begin in the City Police Station on 21 January 1991 with other stations to follow, both the Council for Civil Liberties and the Police Association publicly welcomed the event.1290 The Council declared an end to verbals. The Association declared an end to allegations of verbals.1291 The Prisoners’ Action Group was much less happy about the direction of events, and in particular the introduction of recording without legislative safeguards. It warned that unrecorded threats could be used to coerce recorded confessions, that video tapes could be used to portray suspects in an unflattering light, and that the abolition of the right to silence might be put forward as a trade-off for taping.1292
Ironically, the problem of verballing was becoming more apparent than ever before, through high profile revelations by former Queensland police Inspector Jack Herbert and former NSW Police Detective Sergeant Roger Rogerson. In one oft-repeated statement, Rogerson said that verbals were ‘part of police culture… Police would think you’re weak if you didn’t do it… The hardest part for police was thinking up excuses to explain why people didn’t sign up’.1293
After beginning in Sydney, the use of taping spread to the rest of NSW.1294 The
1286 LC v 3/216 at 5846 (Hon E P Pickering, 16 August 1990). 1287 LC v 3/217 at 6848 (11 September 1990). 1288 Telegraph Mirror (1991: 21 January at 14). 1289 LC v 3/217 at 6392 (Hon E P Pickering, 28 August 1990), SMH (1991: 9 January at 2). 1290 SMH (1991: 9 January at 2). 1291 SMH (1991: 9 January at 2). 1292 Prisoners’ Action Group (1989). 1293 Quoted in Findlay, Odgers and Yeo (1999: 523). 1294 Brown, Ferrier, Egger and Weisbrot (2001: 228). 280
introduction of audio-visual recording in NSW and some other States was coupled with further High Court moves to curtail reliance on unrecorded confessions. In the 1991 case of McKinney and Judge,1295 the High Court decided by a 4-3 majority that trial judges should be required to warn juries of the dangers of convicting a defendant solely or mainly on the basis of a confession to police that was not independently corroborated in some manner. Juries were to be told that in the absence of corroboration, it was more difficult to challenge a confession than to fabricate one. The majority judges noted that taping was now required under Victorian legislation and was standard practice in Tasmania.1296
The decision in McKinney and Judge was the culmination of a series of High Court decisions, since the Driscoll case, that sought to encourage a firmer judicial stance against unlawful and improper conduct by police in detaining and questioning suspects.1297 Interestingly, Justice Michael Kirby has suggested that the ALRC Criminal Investigation report encouraged the High Court to focus on the inadequacies in the existing law.1298 If so, this is a further illustration of the links between the legislative debate and developments in case law.
The decision in McKinney and Judge also underlined the importance of the new NSW recording system, known as ERISP (Electronic Recording of Interviews with Suspected Persons). From the official police perspective, it was a marked success. In mid-1994, the Commander of the ‘ERISP’ Unit within the Police Service reported that since January 1991:
more than 30,000 interviews have been recorded and presented in court without significant problem. Contrary to some expectations, police have readily accepted the introduction of ERISP, recognising the benefits the system brings to their working environment and to the
1295 (1991) 171 CLR 468. 1296 The NSW Police Association attacked the decision on the basis that it would help criminals and discredit police: SMH (1991: 23 March at 3). For a contemporary critique of the approach taken in this decision, in particular concerning the value of warnings to a jury as a safeguard of suspects’ rights, see Dixon (1991a). 1297 See Cleland v R (1986) 151 CLR 1, where three judges encouraged the exclusion from evidence of confessions obtained during unlawful detention. 1298 Justice Michael Kirby interview, 2 June 1997. 281
criminal justice system as a whole. The Director of Public Prosecutions has recorded an increase in the number of guilty pleas, and strong anecdotal evidence that voire dire [sic] concerning the admissibility of confessional evidence are fewer and shorter… the cost of ERISP was less than $5 million over an implementation period of three fiscal years. Compared with the productivity gains made by each of the major participants this was trivial indeed.1299
The Police Inspector who made these comments, Roger Kilburn, went on to argue that under ERISP the time taken to conduct interviews and present cases in court had been significantly reduced. He added that because NSW had introduced its taping system later than England or Victoria, the technology in use was far superior.1300 With the benefit of hindsight, everyone wanted credit. In 1997 Lloyd Taylor, who was now Secretary of the Police Association, cited audio-visual recording first and foremost among Police Association ‘initiatives’ that had been vindicated by the passage of time.1301
The following year, a legislative sanction for failure to tape record a confession was inserted in the Crimes Act 1900 as a consequential amendment to the new Evidence Act 1995. Under the amendments, a failure to record a statement without reasonable excuse rendered the statement inadmissible against its maker. Only more serious offences were subject to this protection.1302 These amendments were enacted by the Labor Party, which had returned to power in 1995. Its Attorney-General Jeff Shaw described the new admissibility provision as a ‘great development’ and ‘an important part of the evolution of our criminal law’ that removed the ‘danger of verballing’.1303
1299 Kilburn (1994: 24-25). 1300 Kilburn (1994: 25). David Dixon argued in 1991 that the systems being introduced in NSW and elsewhere in Australia were ‘the most sophisticated systems of mass audio-visual recording of interrogations’ in the English-speaking world: Dixon (1991a: 104). 1301 Taylor (1997: 17-18). 1302 Section 424A(4) of the Crimes Act 1900, inserted by schedule 1 to the Evidence (Consequential and Other Provisions Act 1995 (NSW).
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Conclusion: Evaluation of Recording
The introduction of audio-visual recording throughout NSW was a significant achievement and the anti-verbals campaign was a major catalyst. Nonetheless, as we have seen, elements within that campaign were not happy about the introduction of taping without a broader legislative framework and greater judicial vigilance. One concern was that to avoid suspicions of ‘verballing’, some police had begun using prisoner informants to testify as to ‘confessions’ allegedly made to them by another detainee, which were in fact fabrications agreed between police and the testifying prisoner.1304 It is notable that the High Court followed up its decision in McKinney with another the next year requiring a similar warning about the unreliability of evidence given by a prisoner as to an alleged confession made by the defendant.1305 In other words, the High Court remained vigilant in this area, within the limits of its powers and influence.
Dixon and Travis have undertaken a detailed study of the way in which audio/visual recording has operated in practice in NSW. Their research indicates that there are significant positives in the operation of the system in NSW including the extensive use of videotape, the provision of an audio copy to the person interviewed, and police training that emphasises collection and checking of information rather than tactics to induce confessions.1306 They argue that the system (where it is used) ‘virtually eliminates basic disputes about what a suspect said during a formal interview: neither the simple verbal nor the groundless accusation of verballing are possible if the interview is recorded’.
According to Dixon and Travis, there are, however, some limitations and drawbacks to the system. Recording is only required, under both legislation and
1303 LC v 3/250 at 184 (18 April 1996). 1304 Anderson (1992: 257-62), Brown and Duffy (1991); Tim Anderson Interview, 17 September 1998. 1305 Pollitt v R (1992) 174 CLR 558. 1306 D Dixon and G Travis (forthcoming), ‘The audio-visual recording of police interrogation in New South Wales,’ excerpt reproduced in Brown, Farrier, Egger and McNamara (2001: 228-31). 283
guidelines, for relatively serious offences. Confessions for minor offences therefore remain more susceptible to manipulation and fabrication. Furthermore, interviewing commonly takes place in advance of the ‘formal’ recorded interview and this leaves scope for unseen psychological pressure/assumption building, leading to unreliable confessions. There is also a danger that judges, magistrates, prosecutors, jurors and police may read too much into a suspect’s body language, again creating a risk of unreliable conclusions being drawn.
Notwithstanding these concerns, it is fair to say that ‘ERISP’ has made a marked contribution to the efficiency, integrity and reliability of the criminal investigation and prosecution process in NSW. In the broader history of debate and reform, this illustrates how variables other than legal rules exert a powerful influence on police practice, and that legislative reform is not the only means for advancing ‘due process’ within criminal investigation. Indeed, the absence of a legislative framework avoided negative symbolism that might have produced an adverse police reaction and delayed or diluted the introduction of recording in practice.
The introduction of audio-visual recording was, however, far from the end of the debate about police interrogations. Many still felt a legislative framework desirable. In a 1990 report, the NSW Law Reform Commission recommended that legislation be enacted incorporating a whole suite of rules to govern police and confer rights on suspects.1307 The fate of this recommendation forms part of a broader story of legislative reform (and non-reform) in the 1980s and 1990s. Audio-visual recording had been introduced without a legislative framework, but this was against the general trend towards a considerable proliferation of legislative rules to govern criminal investigation in NSW.
1307 NSW LRC (1990). The Commission’s recommendations are outlined in chapter 8. 284
7. PUSHING POWERS
In the 1980s and 1990s, extensive reforms were enacted to criminal investigation law in NSW. The disinterest of the 1950s was long gone. The hesitation of the 1960s had been abandoned. The stalemate of the 1970s was unlocked. This chapter examines some of the key influences on the enactment of additional powers since the 1980s. The next chapter focuses on the other side of the law reform equation, namely the factors that have influenced increasing legal regulation of police. Neither chapter is intended to constitute an exhaustive discussion. Merely reciting all of the legislation that has been enacted in this period would fill a lengthy book; a detailed recounting of the histories of policing and public debate would fill many such books. Accordingly, the discussion in these two chapters centres on a limited number of significant themes, selected for their importance in setting the overall direction of debate and reform. Nor is the structure of the two chapters intended to imply a clear separation of the ‘powers’ and ‘regulation’ debates. They have been tightly bound together, a point that is itself the subject of close attention in these chapters.
The first section of this chapter outlines the criminal investigation powers that have been conferred on NSW police and policing agencies from the 1980s onwards. The following sections examine, in turn, five key influences on the enactment of these powers: the role of police managers and police unions, the impact of law and order politics, expectations of government action, the impact of technology, and the influence of the ‘balance’ paradigm. The chapter concludes with a discussion of the relevance of legislative powers to policing.
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The Legislative Onslaught
Even a brief list of the major amendments to criminal investigation powers enacted in NSW since 1980 gives an idea of the large volume of legislation involved. In 1982, police were given random breath testing powers;1308 and new entry powers to deal with domestic violence.1309 In 1984, a new listening devices law was enacted, placing authorisation in the hands of courts rather than senior police.1310 The same year, the NSW legislation to underpin the National Crime Authority was enacted,1311 with the State Drug Crime Commission Act 1985 following soon after. The year 1985 also saw new rules codifying the issuing and execution of search warrants enacted in the Search Warrants Act 1985.
The Telecommunications (Interception) (New South Wales) Act 1987, coupled with amendments to the Commonwealth’s Telecommunications (Interception) Act 1979 gave NSW Police the legal authority to tap telephones. Powers to take blood samples and other ‘forensic’ procedures were the subject of a failed Bill in 1990,1312 an interim reform in 1995,1313 and a major legislative overhaul in 2000.1314 Search warrant powers were significantly revised in 1991.1315
The late 1990s saw an ever more crowded legislative program. A detailed regime to regulate the detention and questioning of suspects was enacted in 1997,1316 after several earlier Bills had fallen by the wayside. Legislation to govern undercover operations was also enacted in 1997 and significantly overhauled just two years later.1317 A framework for the use of assumed identities was enacted in 1998,1318
1308 Motor Traffic (Road Safety) Amendment Act 1982. 1309 Crimes (Domestic Violence) Act 1982. 1310 Listening Devices Act 1984. 1311 National Crimes Authority Act 1984 (Cth), National Crime Authority (State Provisions) Act 1984. See chapter 5. 1312 Crimes Legislation (Further Amendment) Bill 1990. 1313 Crimes Legislation Amendment Act 1995. 1314 Crimes Amendment (Forensic Procedures) Act 2000. 1315 Search Warrants (Amendment) Act 1991. 1316 Crimes Amendment (Detention After Arrest) Act 1997. 1317 Law Enforcement (Controlled Operations) Act 1997; Law Enforcement (Controlled Operations) Amendment Act 1999. 286
along with personal search, vehicle search, and name and address questioning powers,1319 in a climate of severe concern about street crime and police authority. In 2001, NSW police were given special powers of entry, search and arrest in relation to ‘suspected drug premises’.1320 These powers were said to be directed against fortified houses used for dealing drugs, especially in Cabramatta.1321 They were also given power to oversee the conduct of internal searches (for example, ultrasound scans) to detect internally concealed drugs.1322
A further significant development in 2001 was the release of the draft NSW Law Enforcement (Powers and Responsibilities) Bill 2001 for public comment. This followed the lead set by England1323 and more recently Queensland1324 in consolidating a range of criminal investigation and public order powers in a single statute. As well as drawing together existing provisions, the Bill contained new powers and limitations not previously provided for in NSW legislation. Powers to enter premises in an emergency, based on the common law, were codified (section 9 and 10). There was a power allowing police to require a financial institution to produce records, subject to the same procedural frameworks as search warrants (sections 38 to 43). Police were also to be given new powers to secure a crime scene, along with powers to locate, maintain and retrieve evidence from the scene pursuant to a warrant (sections 66 to 73).
We now turn to consider some of the key forces that drove this significant expansion of formal police powers.
1318 Law Enforcement and National Security (Assumed Identities) Act 1998. 1319 Police Powers (Vehicles) Act 1998, Crimes Legislation Amendment (Police and Public Safety) Act 1998. 1320 Police Powers (Drug Premises) Act 2001. 1321 Maher and Dixon (2001: 11), SMH (2001: 29 March at 4), DT (31 May at 9). 1322 Police Powers (Internally Concealed Drugs) Act 2001. 1323 Police and Criminal Evidence Act 1984 (UK). 1324 Police Powers and Responsibilities Act 1997 (Qld); Police Powers and Responsibilities Act 2000 (Qld). 287
Police Managers, Police Unions
NSW Police Commissioners and the NSW Police Association, like their counterparts Australia wide, have been vocal and influential figures in the police powers debate in the last two decades. They have blocked many unwanted reforms and secured many they have sought. A number of academic commentators have noted with concern the considerable influence of police in political debate.1325 There is no doubt that police have many institutionalised advantages in influencing public opinion. They perform a highly visible and highly valued public service; and they have well resourced and effective public relations units.1326 Police unions have benefited from their high membership levels within police forces (‘just about the closest thing Australia has to a closed shop’) and from the emphasis on solidarity within police culture.1327
The influence of police within government is underpinned by their crucial position within the state. As Lewis points out:
police… are essential to the state’s very existence for, without the power to coerce, governments cannot govern. Even though clashes between police and governments can at times be fierce, the symbiotic nature of their relationship means that a divorce is out of the question.1328
Furthermore, the presentation of a common front to the outside world, resolving differences in-house, is a key feature of police cultures.1329 This can make police interventions in public debate more effective (‘united we stand’) and create a somewhat sinister impression for those worried about what is being concealed
1325 See, for example, Swanton (1983), Sallmann and Willis (1984), Willis and Sallmann (1985), Sallmann (1986), Finnane (1990) and White and Richards (1992), Brown, Farrier, Egger and McNamara (2001: 234). 1326 Sallmann (1986: 205). 1327 Finnane (2000a: 5). 1328 Lewis (1999: 527).
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behind the scenes.
There have been plenty of examples of concerted police efforts: the meeting held by the Victorian Police Association in the aftermath of the Beach Inquiry attended by thousands of officers; the campaign against the Criminal Investigation Bill 1977; the ‘non-enforcement’ campaign in response to Frank Walker’s reforms to public order law. More recently, the NSW Police Service stage-managed a high profile event in April 2000, seeking DNA samples from all of the men of the town of Wee Waa to find the person who had raped and beaten a 91 year old lady the previous year.1330 The testing exercise generated considerable positive coverage, on the theme of police and the community pulling together to solve a heinous crime.1331 However, it was alleged that the Police Service was largely motivated by a political agenda, namely to highlight the value of DNA evidence and consensual testing, just as the Crimes Amendment (Forensic Procedures) Bill was being finalised for introduction into Parliament.1332
Yet the appearance of police solidarity and influence obscures some interesting and important limitations. Examining these assists in better understanding the dynamics of reform. The first point to make is that public campaigning by police may well point to limitations to their influence behind the scenes. Despite the fears that have been expressed about the public lobbying by police, behind the scenes influence can often be more useful where it is available. Finnane and Smith have both made this point in the context of the powerful behind the scenes influence of the Queensland Police in the period when the strongly pro-police Bjelke-Petersen Government was in power.1333 By the 1980s, Queensland police were simply handing over draft legislation for the Government and Parliament to adopt. There was no need for vocal public lobbying. The ‘coming out’ of police,
1329 Reiner (2000: 92-94). 1330 See Saul (2001: 76-78). 1331 See, for example, ‘Wee Waa’s men team up to trap cruel rapist’: ST (2000: 9 April at 5), SMH (2000: 10 April at 8). 1332 DT (2000: 8 April at 19), Australian (2000: 13 April at 3). 1333 Finnane (1990), Smith (1994). 289
as Finnane puts it,1334 can be both a sign of the limitations of their influence and conducive of a more transparent reform process.
In the case of the Wee Waa incident, police actions in themselves raised some concerns about overzealous enforcement, even on the part of the Daily Telegraph, which warned of the ‘thin edge of a dangerously divisive wedge’.1335 The fact that the Wee Waa mass screening had not been a complete public relations success was shown by the fact that Commissioner Ryan later said that once the DNA database had developed, mass screening would not be needed.1336
The limits to police influence have been illustrated in other contexts. Police efforts to block the establishment of a national crimes commission were unsuccessful.1337 Lloyd Taylor argued for over a decade that NSW police should have a roadblock power,1338 but for a long time his calls went unanswered, until the enactment of the Police Powers (Vehicles) Act 1998.
It is also possible to overstate the extent to which Police Commissioners and Police Associations have a shared outlook and a shared agenda. There have certainly been many instances in Australia where the two have worked closely together to achieve a common goal. Freckleton goes so far as to describe the Victorian Police Association as the ‘political arm’ of the Victoria Police.1339 White and Richards point to the ‘strong links between police officials, police ministers and police commissioners’.1340 In NSW, some of these links have been surprisingly direct. Tony Lauer was Police Association President before he was Police Commissioner. Taking their cue from police solidarity, many accounts focus on the ‘police’ position in the debate about criminal investigation law,
1334 Finnane (1990: 226). 1335 DT (2000: 8 April at 22). 1336 SMH (2000: 1 June at 9). 1337 See chapter 5. 1338 Taylor (1987), Taylor (1989: 142), Lloyd Taylor Interview, 5 June 1997. 1339 Freckleton (1991: 99). 1340 White and Richards (1992: 1). 290
without distinguishing the roles of senior police and the police union.1341
Yet it is possible to identify a broad difference of emphasis between the objectives of the ‘Police Force’ and the ‘Police Association’ over the years. Finnane has noted, in relation to the late 19th and early 20th centuries, that Australian police commissioners were sometimes ‘suspicious of the claims of their underlings for additional powers’.1342 More recent studies by both Bolen and Finnane have further emphasised the differing perspectives of police managers and police unions, although not in the specific context of the criminal investigation powers debate.1343
The principal distinction that can be seen in the criminal investigation law reform debate is between placing an emphasis on securing additional powers, and an emphasis on resisting additional regulation.
By and large, the major initiatives to secure extra powers have come from the NSW Police Force (since 1990 the NSW Police Service), rather than the Police Association. The proposals put by the Force to the Woodward Royal Commission were a notable example. In that context, the NSW police hierarchy was fighting off significant criticism of the Force’s effectiveness, and a significant threat to the status and prestige of the Force in the shape of a possible Crime Commission.1344 More recently, Commissioner Ryan has consistently campaigned for additional powers.1345
Across the Murray River, Victorian police engaged in a vigorous campaign for much of the 1980s in an effort to secure additional powers. This was led by Police Commissioners Miller and Glare. It was apparent that one of the motivating
1341 For example, Sallmann and Willis (1984: 38-39), Sallmann (1986; 1988), Dixon (1997: 296). 1342 Finnane (1987: 89). 1343 Bolen (1997), Finnane (2000b). 1344 See chapter 5. 1345 See, for example Dixon (1999a: 166). 291
factors was a desire to redirect responsibility for rising crime rates.1346 A central part of the Victorian Government’s response to the campaign was to establish a committee chaired by the Director of Public Prosecutions, Mr John Coldrey, to make recommendations for reform of criminal investigation law. One of these reports dealt with police powers to detain a suspect for questioning.1347 The Victorian Police Force was represented by the then Assistant Commissioner Kel Glare. The Victorian Police Association was not represented. The fact that the Association complained about this,1348 is itself suggestive that the Association did not see its interests as synonymous with those of the Police Force.
The Coldrey Committee’s report, in which Assistant Commissioner Glare concurred, recommended relaxation of the existing 6 hour limit on pre-charge detention introduced in 1984.1349 However, it also recommended that this be accompanied by new safeguards. These safeguards included a statutory right to communicate with a lawyer and a friend or relative, and a presumption in favour of excluding a confession from evidence if it was not tape recorded.1350 Glare publicly accepted the need for this powers/ regulation trade-off.1351 By contrast, the Police Association wrote to the Victorian Opposition, criticising the Bill drawn up to implement the Coldrey Committee’s recommendations.1352 Among other things, it expressed its opposition to the provisions conferring a right on a suspect to confer with a lawyer.1353
Police Association reluctance to pursue a powers/ regulation trade-off has been seen elsewhere. The submission of the Australian Federation of Police Unions to the Criminal Investigation inquiry did not propose any new powers for police,
1346 See, for example, Victoria Police (1983: 8). 1347 Coldrey Committee (1986). 1348 Pickering (1988). 1349 The 6 hour limit was introduced by the Crimes (Criminal Investigations) Act 1984 (Vic), amending section 460 of the Crimes Act 1958 (Vic). On the background to this amendment and the police response, see Willis and Sallmann (1985). 1350 Coldrey Committee (1986: ix, 111-17). 1351 Harvey (1988). 1352 Crimes (Custody and Investigation) Bill 1988 (Vic). 1353 Victorian Legislative Assembly Debates v 391 at 1802-3 (Mr John, Opposition, 22 April 1988). 292
merely noting that South Australia had the ‘best’ laws.1354 On the other hand, it did express concern about the prospect of legislative restrictions being placed on police. When the Criminal Investigation report was handed down, the NSW Police Association came out in opposition almost immediately,1355 long before Police Commissioners.1356 Justice Kirby, the Chairperson of the ALRC throughout this period, remembers police union resistance to the Criminal Investigation report as greater than that of police managers.1357
The greater willingness of Police Commissioners than Police Associations to accept a powers/ regulation trade-off can be better understood by considering the insights provided in Two Cultures of Policing: Street Cops and Management Cops by Ruess-Ianni.1358 Ruess-Ianni draws attention to the quite different culture, perspective and objectives of ‘street cops’ and ‘management cops’. In her study of a group of New York police, she found that:
Abstractly, both cultures share the goals of combating crime and ensuring a safe and secure city [but]… the street cop culture sees immediate local police response as more important than preplanned and “packaged” solutions… Management cop culture, on the other hand, concerns itself with crime on a systemwide or citywide, rather than localized, level…1359
Later, Reuss-Ianni argues that it is natural that:
street cops give less weight to what the newspapers say. They do not have to answer to the press or to the mayor. But managers do. In the same way, the managers do not care about the effects of their policy on the daily lives of street cops. They do not have to live with those
1354 Australian Federation of Police Associations/Unions (1975). 1355 Police Association of NSW (1976: 12). 1356 Kirby (1979: 630), Ross (1982: 81-83). 1357 Justice Michael Kirby Interview, 2 June 1997. 1358 Reuss-Ianni (1983).
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situations.1360
Reuss-Ianni can be criticised for implying there are only two police cultures,1361 but the basic distinction between ‘street cops’ and ‘management cops’ is one that can usefully be applied in this context. A perception that police are failing to contain crime is likely to lead to criticism of the management of the force, rather than the rank and file. It is senior police who are answerable for the overall performance of the force. In 1985 the then Chief Commissioner of the Victoria Police, ‘Mick’ Miller made exactly that point:
the Chief Commissioner is accountable for the collective performance of each and every member of the police force. In return, each and every member of the police force is accountable to the Chief Commissioner for his or her individual performance.1362
Additional legal powers go to the ‘collective performance’ of the force, for which the ‘Chief Commissioner is accountable’. Senior police can gain from calls for extra powers, which can divert criticism for the past ‘failure’ of their agencies, and can gain from the conferral of new powers through greater enforcement ‘success’.
Rank and file officers who are represented by the union face different pressures:
Being members of disciplined organisations, police officers are… subjected to relatively severe punishments within their departments. As a result of personal error, mischance or poor supervision, individual officers can easily find themselves charged with a departmental offence.1363
1359 Reuss-Ianni (1983: 6-7). 1360 Reuss-Ianni (1983: 123). 1361 Dixon (1997: 16). 1362 Miller (1985). 1363 Swanton (1983: 161). 294
This is a recurring theme in studies of policing.1364 In the specific case of the NSW Police Service, the final report of the Wood Royal Commission found that the disciplinary system was ‘unduly rigid’ and ‘concentrated on minor disciplinary infractions and honest mistakes’. It also criticised the ‘existence of too many regulations and instructions whose main purpose often seemed to be the provision of a framework for attributing blame if something went wrong’.1365 Accordingly, it is individual rank and file police who have the most to lose from detailed regulation of their practices. It is not surprising that Police Associations which represent the interest of the rank and file have traditionally been less enthusiastic about supporting extra powers at the cost of bringing on extra regulation.
The difference is one of emphasis only. Many senior police would no doubt prefer maximum police discretion under law, subject only to internal controls. Many rank and file police would no doubt wish to have greater powers to assist the overall fight against crime. But there is a difference of emphasis. One important consequence of this emphasis goes to the prospects for reform. In a 1985 article, Willis and Sallmann complained that the Victorian Coldrey committee had been ‘considering a major police submission on section 460 and related issues in private. The community is not to know what the police submission contains’. Willis and Sallmann went on to suggest that it was almost as if ‘police have come to treat police powers questions as industrial relations issues to be negotiated… on a semi-private basis with government’.1366
The irony is that the forum provided by the Coldrey committee for ‘semi-private’ discussion and negotiations involving the police hierarchy allowed some separation of the agenda of the hierarchy from the ‘industrial relations’ concerns of lower level police. In semi-private, a trade-off was agreed, one that was subsequently implemented in legislation despite complaints by the Association. Likewise, representatives of the senior ranks of the Commonwealth Police were
1364 Finnane (1994: 159-66), Dixon (1997: 6). 1365 Wood (1997: 194). 1366 Willis and Sallmann (1985: 228). 295
involved in the behind the scenes deliberations that produced the Criminal Investigation report; but it was the public debate led by the Police Associations that scuttled reform. This is not to suggest public debate is an undesirable thing. It is appropriate that police and their unions should have a full and proper say about legislation affecting their work practices, and as noted above, public debate can be preferable to unseen influence. Rather, it needs to be recognised that it is in public debate that police representatives are most likely to tend to solidarity, concealing the more complex underlying realities.
It is also worth noting that in recent years, new agencies that have been set up in the policing field have been frequent contributors to the law reform debate. The proliferation of agencies in the policing field has been a product of the political focus on law and order, and has itself fuelled the debate. For example, the Independent Commission Against Corruption sought telephone tapping powers not long after it had been brought into existence in 1988.1367 These were secured the following year.1368 Just months later, it led calls for the categories of offence for which a telecommunications interception warrant could be issued to be broadened to include bribery and corruption offences.1369 This was ultimately done in 1995.1370 In late 1990, the NSW Crime Commission called for Telecom call charge records concerning mobile phone users to be made available to State policing agencies.1371 This was a response to broader difficulties with intercepting calls from mobile phones.1372
When the Ridgeway1373 decision (discussed in the next chapter) pointed to the need for legislation to authorise undercover operations, it was the Independent Commission Against Corruption that convened a working group of NSW agencies
1367 See LA v 3/211 at 12277 (Second reading speech on the Telecommunications (Interception) (New South Wales) Amendment Bill 1989, by the Attorney-General, John Dowd, 14 November 1989). 1368 Telecommunications (Interception) (New South Wales) Amendment Act 1989. 1369 SMH (1990: 28 September at 3). 1370 The Telecommunications (Interception) Amendment Act 1995 (Cth), inserting paragraph 5D(2)(vii) in the Telecommunications (Interception) Act 1979 (Cth). 1371 SMH (1990: 10 October at 9). 1372 SMH (1991: 1 November at 5). 296
to develop and promote proposals for such legislation.1374 Even the Police Board, nominally created as an accountability mechanism to oversee the management decisions of the Police Commissioner, joined the fray. In 1986 it called for NSW police to be given powers to drug test motorists and tap telephones.1375
Overall, police influence on the law reform debate has been neither homogenous nor universal. Police largely kept out of the debate until the 1970s, and were initially drawn in by their concerns about the 1970s inquiries and associated legislative initiatives. The NSW Police Association took a leading role in this context. The NSW Police Force later placed itself at the centre of the deliberations of the drug and organised crime Royal Commissions, making the argument for extra powers in the face of criticisms of the performance of the Force and calls for a crime commission. In the years since, both NSW and Victorian experience suggests that police organisations and police unions have had a different focus, with the organisation more ready to accept regulation to secure powers. New policing agencies have also had their own perspectives. Separately and collectively, police have sometimes failed to secure their objectives, but overall they have had significant influence. A range of explanations for this influence have been put forward, but one deserves particular attention: the ‘law and order’ climate prevalent in recent times.
Law and Order
Law and order politics has exerted a profound influence on criminal justice policy and debate in NSW, Australia and many other countries including Britain, the United States and New Zealand, since the late 1960s.1376 Commitment to law and order demands direct, tangible and apparently firm interventions by governments
1373 (1995) 184 CLR 19. 1374 Wood (1997: 444). 1375 SMH (1986: 4 December at 2). 1376 See Hogg and Brown (1998), Cowdrey (2001), Loveday (1992), Pratt (1988), Schiengold (1984). 297
to deal with the crisis of crime. Yet there are only a limited range of things that an elected government can offer: more resources, more programs, new or restructured agencies, new laws or guidelines. It is not surprising that the same kinds of initiatives appear on the law and order agenda time and again.
Two kinds of police ‘powers’ have been promoted in the law and order context: public order powers and criminal investigation powers. If anything, the law and order debate has focused more on public order powers, because they are directed closer to the heart of the fears that underpin tough on crime policies. The main component of public order ‘powers’ is low penalty criminal offences, which provide police with a pretext to warn, move-on or arrest people (for example, Aboriginal people and youth gangs) whose conduct is causing fear and affront to ‘law-abiding’ members of the community. The stoushes between the tough on crime Liberal and Country parties and the more libertarian Labor Party over the enactment of the Summary Offences Act 1970 and its repeal in 1979, have given way since the mid-1980s to a more evenly matched competition between the parties to be tougher on maintaining order in the streets.
The impact of ‘law and order’ politics on criminal investigation law has been more muted. Contemporary law and order fears have centred on unsophisticated street crimes (violence, rape, theft) and the activities of gangs, rather than sophisticated crimes committed by organised or professional criminals. Even in the drug crime context, much of the focus since the 1990s has been on street dealings, rather than on the ‘Mr Bigs’. Accordingly, the types of reforms most in demand in the law and order climate have been in the public order arena. A second factor is that criminal investigation law is more complex than public order, especially because of its longer history of accountability limitations (for example, judicial issuing of warrants). It is therefore more complex to reform and less amenable to ‘tough on crime’ simplicities. However, this is only a matter of degree, as we will see.
A third consideration is that there is a greater depth of law reform material in the criminal investigation area, following on the reports of the 1970s, and therefore 298
more weighty alternatives standing in the path of the immediate demands for law and order. Perhaps most importantly, professionals and members of the middle class who would confidently assume they would never be the subject of public order policing are more likely to be able to imagine being subject to the exercise of criminal investigation powers. For example, lawyers and doctors can imagine having their papers seized under warrant. There is therefore a stronger constituency for moderation in criminal investigation law.
The 11 September 2001 terrorist attacks on the United States may lead to a significant reversal of this position. At the Federal level, there is now a very strong emphasis on tougher criminal investigation laws to deal with sophisticated criminal activity relating to terrorism. This may well flow through to the States and Territories. Furthermore, the need for law and order initiatives to address these sophisticated crimes are (at least in the short run) attracting a significant share of public and media attention. It remains to be seen how much this might flow through to the NSW scene.
Even aside from these latest developments, law and order has had a significant impact on criminal investigation powers in NSW. Half a dozen examples can be cited. One is the telephone tapping powers that were enacted in 1987.1377 A major factor in this reform was alarm about the threat of drug trafficking and organised crime, and the demands for tough action in response, as discussed in chapter 5. In the NSW Parliamentary debate on those reforms, Attorney-General Sheahan declared that ‘The Government’s commitment to law and order is absolute and this legislation reinforces that commitment’.1378
The Crimes Legislation Amendment (Police and Public Safety) Act 1998 is a more recent example. This was essentially a ‘public order’ measure, to allow police to impose greater order on the streets by suppressing possession of knives
1377 Telecommunications (Interception) Act 1979 (Cth), Telecommunications (Interception) (New South Wales) Act 1987. 1378 LA v 3/199 at 15924 (12 November 1987). 299
and by making ‘move on’ orders. However, the legislation also contained powers to search persons suspected of carrying knives without reasonable excuse.
The Police Powers (Vehicles) Act 1998 was a further law and order measure around this time. It was enacted in the immediate aftermath of a drive-by shooting of the Lakemba Police Station, which stirred up emotional media commentary and calls for tough counter measures targeted at ethnic gangs.1379 The Act conferred powers on police in relation to vehicles suspected to have been used in connection with indictable offences. Police were authorised to require the owner or driver to divulge the identity of anyone in the vehicle at or about the time of the alleged offence (section 6). Non-compliance or deception was an offence (sections 7-9). In addition, a senior police officer could authorise the establishment of a roadblock, and either as part of a roadblock or separately, the stopping and searching of a vehicle or a class of vehicles, and the seizing of any evidence of an indictable offence found within (section 10).
The Crimes Amendment (Forensic Procedures) Act 2000 was also presented in a law and order framework. This conferred on police the power to take a range of forensic samples, including saliva, blood and hair, from a suspected or convicted offender. It also authorised the retention in a database of certain information derived from samples. It was presented as the leading law and order initiative in legislative sittings which the Sydney Morning Herald described as being ‘dominated’ by such initiatives.1380 Indeed, the Opposition seemed jealous of the Government’s success in securing law and order mileage out of this legislation.1381 On the other hand, the Hon Ian Cohen of the Greens Party complained of the ‘race between the Government and the Opposition to achieve the lowest common denominator in criminal justice policy’.1382
Two drug law enforcement initiatives enacted in 2001 also emerged in a law and
1379 See Poynting (1999). 1380 SMH (2000: 27 March at 2). 1381 LA (Mr Hartcher, 6 June 2000). Not yet printed in volume form.
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order context. Under the Police Powers (Drug Premises) Act 2001 NSW police were given special powers of entry, search and arrest in relation to ‘suspected drug premises’. Under the Police Powers (Internally Concealed Drugs) Act 2001 NSW police were given the power to oversee the conduct of internal searches (for example, ultrasound scans) to detect internally concealed drugs.1383 Premier Carr promoted these proposals by going out to Cabramatta, renowned for its drug trade, to demonstrate his Government’s commitment to tough action.1384
These pieces of legislation can be identified as having a particular connection to the law and order climate, because of the nature of the debate surrounding their enactment. The connection can be made by drawing on the persuasive analysis of contemporary law and order politics offered by Hogg and Brown in their 1998 book Rethinking Law and Order.
Hogg and Brown argue that law and order politics is built on an identifiable set of ideas and assumptions that are constantly reiterated and reinforced by ‘popular and authoritative sources’. These sources include judges, police, politicians and media commentators.1385 Hogg and Brown identify a number of enduring themes within the discourse of law and order ‘common sense’, five of which are relevant to the debate about criminal investigation law.1386 The first theme within law and order discourse is that crime rates are soaring. We have seen that this perception was central to the launching of the police powers debate in the late 1960s. It has helped maintain impetus for new powers. The second theme is that high crime is a recent problem, and that society used to be much more ordered and its citizens more law abiding. It has certainly been the case that the novelty of developments in crime has often been used as an argument for new powers, notably in the context of the ‘war on drugs’.1387
1382 LC (21 June 2000). Not yet printed in volume form. 1383 Police Powers (Internally Concealed Drugs) Act 2001. 1384 SMH (2001: 29 March at 4). 1385 Hogg and Brown (1998: 18-19). 1386 Hogg and Brown (1998: 21-41). There are two others: ‘we need tougher penalties’ and ‘victims should be able to get revenge through the courts’: Hogg and Brown (1998: 21). 1387 See chapter 5. 301
Hogg and Brown’s third theme is that American crime and disorder is persistently seen as the harbinger of Australia’s own descent into the abyss. This was certainly an influential idea in the law reform debate of the 1960s and 1970s, as we have seen. (More recently, American criminal justice has been seen by many as a positive model for Australia, notably the success of zero tolerance). The fourth theme is that the criminal justice system is soft on crime. This has certainly been an oft-cited claim by supporters of enhanced powers and opponents of the legal regulation of police. This ties in with the fifth theme, which is that more police are needed and they require greater powers. It is certainly true that concern about law and order has been linked to calls for additional police powers. Chief Justice Herron’s comments on his return to Sydney in 1969 were a classic example, and also underlined the importance of that idea that America is a harbinger of things to come for Australia.1388
In addition to the general law and order themes identified by Hogg and Brown, three additional ‘law and order’ themes may be noted in the context of the criminal investigation law reform debate in the 1980s and 1990s: urgency, government responsibility, and the identification of targets.
The law and order approach demands that reform be attended by an appropriate air of urgency. The Victorian telephone tapping debate provides a notable example of the rhetoric of urgency. Following the second Stewart Royal Commission, Victoria’s Labor Premier John Cain sought further review of the issues before deciding whether to proceed with telephone tapping powers. The leader of the National Party in Victoria attacked Cain for ‘pussyfooting around’ adding that through ‘his failure to take decisive action, the Premier is either knowingly or unwittingly aiding and abetting those unsatisfactory elements in our society that the police seek to eliminate’.1389 In the law and order paradigm, delay and contemplation are at odds with the overriding and urgent aim of combating
1388 Chief Justice Herron’s comments are outlined and discussed in chapter 3. 1389 Age (1986: 3 May at 4). 302
criminals. This philosophy was well illustrated by Police Minister Paul Whelan’s description of the Crimes Legislation Amendment (Police and Public Safety) Bill as ‘instant law’.1390
The Police Powers (Vehicles) Bill was also brought forward in an atmosphere of urgency, even though roadblock and vehicle search powers in question had been proposed by police for more than a decade.1391 The Bill was introduced 12 days after the firing of shots into the Lakemba Police Station had generated an outcry (joined by Commissioner Ryan) for measures to assist police. Critics claimed the Bill was a ‘knee-jerk reaction’ driven by ‘media reporting of the events’.1392 Likewise, one critic of the Crimes (Forensic Procedures) Bill complained that it had been ‘drafted in such a rush’ because the Government wanted to ‘bask in the immediate glory that comes to politicians who are tough on crime’.1393
Even Justice Wood, who had criticised politicians for stirring up law and order sentiment,1394 was happy to deploy the rhetoric of urgency. He argued that if ‘law and order’ were ‘serious issues on the political agenda’ then his proposals to remove restrictions on telephone tapping should not be subject to ‘endless debate and procrastination’.1395
A second characteristic of the law and order contribution to the debate about criminal investigation law has been a tendency to emphasise the Government’s direct and significant responsibility for conditions on the ground. Members of the Carr Labor Government elected in 1995 have been masters of the law and order one-liner, emphasising the Government’s direct contribution to crime fighting, for example: ‘The Government is getting tough and strong, and is meeting community
1390 LC v 3/263 at 4170 (Mr Whelan, 29 April 1998). 1391 See, for example, Taylor (1989: 142), NSW Police Force (1988: 33-36). 1392 LC v 3/269 at 10835 (Hon I Cohen, 27 November 1998) and at 10850 (Hon Dr A Chesterfield-Evans, 27 November 1990). 1393 LC (Hon I Cohen, 21 June 2000). Not yet printed in volume form. 1394 Wood (1997: 37). 1395 Wood (1997: 460). 303
expectations by providing police with stronger powers’.1396 Less graphically, the then Labor Attorney-General Jeff Shaw said that the Crimes (Forensic Procedure) Bill 2000 confirmed the ‘Government’s commitment to addressing crime’.1397
The second reading speech on the Police Powers (Vehicles) Bill by the Police Minister Paul Whelan resounded with phrases highlighting the Government’s direct and energetic involvement in assisting police in the fight against crime:
This Government has led the way in ensuring that the police of this State are equipped with the powers they need to do their job… The Government recognises that it is dealing with criminals who do not care about the cost of their activities on the lives of others… The Carr Government has given police the powers and support they need to deal effectively with gang crime...1398
A further indication that characterises law and order initiatives is that it is commonly targeted against a particular group. The Police Powers (Vehicles) Act 1998 was nominally targeted at ‘serious criminal gangs’.1399 In reality this meant particular gangs of youths from particular ethnicities with a history of involvement in disorder, conflict with police and criminal activity. The Crimes Amendment (Forensic Procedures) Act 2000 had a number of targets, among them prisoners. The Act provided for the testing of any prisoner serving a sentence of at least 5 years imprisonment. Around 5 400 NSW prisoners fell in that category. The Police Minister predicted the crime clear up rate could increase 100% based on crime scene matches with these prisoners.1400 By March 2001, saliva swabs had
1396 From the debate on the Crimes Legislation Amendment (Police and Public Safety) Bill 1998: LA v 3/263 at 4104 (Mr Stewart, 29 April 1988). On the use of similar rhetoric in debate on the Victorian forensic procedures legislation, see Meagher (2000: 80). 1397 LC (Second reading speech by the Attorney-General, Jeff Shaw, 20 June 2000). Not yet printed in volume form. 1398 LA v 3/268 at 9902-4 (Mr Whelan, 12 November 1998). My italics. 1399 LA v 3/268 at 9903 (Second reading speech by the Minister for Police, Mr Whelan, 12 November 1998), DT (1998: 3 November at 4), SMH (1998: 3 November at 14). 1400 SMH (2000: 1 June at 9). 304
been taken from over 1600 inmates.1401
These further indicia of a law and order context - urgency, government responsibility, and targeting - accord closely with the characteristics of the moral panic, described in chapter 5. An emphasis on urgency is consistent with the fact that in a moral panic, the problem in question is perceived as unprecedented and pressing, requiring an emergency response.1402 The targeting of particular groups is a vital ingredient of the moral panic, as underlying anxieties about social and economic change are projected on to a scapegoat group who take the role of ‘folk devils’.1403 The need for government (law enforcement) action is also central to the moral panic, as the concerns of ‘ordinary people’ are met through repressive action against ‘folk devils’.1404
A further implication of much ‘law and order’ thinking is that law is itself an obstacle to order. Allen has examined this issue in detail in the American context, in his book The Habits of Legality.1405 He points to a ‘democratic malaise’ in which there is significant doubt about ‘the capacities of a turbulent and complex society to achieve its essential objectives when limited by the processes of legal institutions and the letter of the law’.1406 This encourages support for unlocking the legal ‘fetters’ on police, to unleash them for a harsher and less regulated effort against crime.1407 Allen’s reasoning is clearly pertinent to the ‘law and order’ thinking that has been influential in Australia. In NSW it can be traced back at least to Chief Justice Herron’s declaration on his return from America in 1969 that it was time to get tough, and to meet crime ‘head-on in a collision’ by strengthening the hand of police to take ‘more drastic action’.1408
Yet there is a paradox. Law has been seen as an obstacle to order maintenance in
1401 SMH (2001: 1 March). 1402 Cohen (1972: ch 4), Hall, Critcher, Jefferson, Clarke and Roberts (1978: 8-9). 1403 Cohen (1972: 181-98), Hall, Critcher, Jefferson, Clarke and Roberts (1978: 43-52). 1404 Cohen (1972: ch 3), Hall, Critcher, Jefferson, Clarke and Roberts (1978: 7-8, 332-33). 1405 Allen (1996). 1406 Allen (1996: 8). 1407 Allen (1996: 22, 96).
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one sense, but the enactment of laws has also been seen as central to crime control efforts. We will consider in the final two chapters why during in the last two decades there has been such an extension of legal regulation. The key point for the purposes of this chapter is that rather than seeking to abandon legal frameworks altogether, policing agencies and supporters of ‘law and order’ have often argued for new powers under law. Law has remained a symbolic and instrumental tool for getting tough on crime, despite its capacity to restrain police discretion.
Government Intervention
Government intervention in policing matters has not been limited to the context of law and order populism. The expectation that governments will directly act to secure criminal justice outcomes has operated more broadly. Three instances from the early 1980s illustrate the point.
In 1980, the NSW Government instructed the NSW Police Force that police should use their breath testing discretion more widely.1409 At the direction of the Government, the Police Commissioner issued an instruction requiring police to perform a breath test on any motorist involved in an accident or suspected of a traffic offence carrying a penalty deduction of four or more licence points.1410 This was intended to increase the likelihood of a motorist being tested, and hence the deterrent value of the threat of testing, as an alternative to the introduction of fully random testing.
Here, the elected government was involving itself in the specifics of how police would enforce the law, a marked departure from the ‘arms length’ approach of the 1950s. The securing of the direction starkly illustrated the compulsion that
1408 SMH (1969: 31 January at 1, 7), DT (1969: 31 January at 1). See chapter 3. 1409 NSW Police Department (1981: 31). 1410 NSW Police Department (1981: 31). 306
politicians have felt in recent decades, to be seen to be doing something themselves, rather than simply leaving law enforcement in the hands of police.
An important sub-text to the breath testing direction was the perception that police were seriously under-using their powers and being too lenient with motorists. It was alleged that police were often sympathetic to motorists involved in accidents and would decline to conduct a breath test.1411 Statistics were produced revealing that year after year, police were only breath testing 10-15% of drivers involved in accidents, yet analysis by the coroner suggested that some 40% of drivers involved in fatal accidents were intoxicated at the time.1412 The Government’s intervention was designed to force police away from their institutionalised preferences. The direction was also identified as a less costly and less controversial alternative to the introduction of random breath testing.1413 Not surprisingly, the direction came under heavy criticism from the Police Association and its members.1414 Examples were cited of the embarrassment and inconvenience that could be caused by mandatory testing, for example, the case of a mother who was involved in a minor accident while taking her child to school and was clearly not intoxicated.1415 However, the Government stood firm and there was an increase in the number of roadside breath tests from around 58 000 in 1979 to around 79 000 in 1980,1416 albeit with little impact on the road toll.
A second ‘intervention’ around this time concerned domestic violence, an area that elected politicians had previously let well alone. The women’s movement had worked hard to place domestic violence on the political agenda in the 1970s.1417 In 1981, the NSW Government commissioned a Task Force on Domestic Violence to identify measures to address the problem of domestic violence. The reluctance of
1411 See, for example, LC v 3/141 at 632-33 (Hon D Freeman, 22 November 1978). 1412 Memo from Assistant Commissioner Black to the Police Association: NSW Police News (1981: October at 45). 1413 See LC v 3/149 at 1602 (Hon D Landa, 10 October 1979). 1414 See representations from Orange and Bathurst Branches: NSW Police News (1981: June at 60); NSW Police News (1981: July at 62; October at 45). 1415 NSW Police News (1980: August at 5; 1981: June at 60; July at 56). 1416 NSW Police Department (1981: 31). 1417 Weeks and Gilmore (1996). 307
police to involve themselves in domestic disputes was one problem to be addressed. Among the Task Force’s suggested solutions was clarification and broadening of police powers to enter premises to investigate suspected instances of domestic violence.
The NSW Government took up the proposal. Under amendments it brought forward, enacted in the Crimes (Domestic Violence) Act 1982, the police were authorised to enter and remain in a house, for the purpose of investigating or preventing a domestic violence offence. The prerequisites were an invitation to police to enter from a person appearing to be an inhabitant; and the absence of an express refusal of permission to enter by an occupant. If police were denied entry, a warrant could be obtained by telephone.1418 There was considerable debate as to whether police really needed these extra powers. The Council for Civil Liberties, in particular, argued that police already had ‘abundant’ power to enter premises and deal with suspected domestic violence offences.1419 One member of the Opposition suggested that ‘virtually all the acts of domestic violence are covered by the present law’.1420 Feminist lawyer Dr Jocelyn Scutt made the same point.1421 The existing powers were the standard power to arrest a suspected offender (ie, a person suspected to have assaulted or be assaulting a person) and to obtain a search warrant to secure evidence of such an offence.1422
Yet to quibble about whether police might be able to employ other powers was to miss the point of the reforms. The underlying objective was to encourage greater police intervention in domestic violence matters. The enactment of novel provisions specifically directed to domestic violence was important as a signal to police of the desire of the NSW Government and Parliament for greater intervention, as a symbolic message to the NSW Police Force. The Opposition
1418 Schedule 2(3) to the Act, inserting sections 357F and 357G in the Crimes Act 1900. 1419 NSW Police News (1981: August at 5). Government backbencher and civil libertarian George Peterson expressed the same view in the Parliamentary debate on the Bill: see LA v 3/172 at 2791 (23 November 1982). 1420 LC v 3/172 at 2895 (Hon A Solomons, 24 November 1982). 1421 Scutt (1986). 1422 Crimes Act 1900, section 352 and 354. 308
supported the Bill, with one speaker expressing the view that it would ‘do much to remedy the dissatisfaction of the police force’ in the policing of domestic disputes.1423 Another referred to police as ‘the main object of the Bill’.1424
The extensive efforts that the NSW Government devoted to developing and implementing these reforms, and the central role taken by the Premier,1425 gave further gravity to the signal that was being sent. The Premier promised that police would take ‘extensive action, in their own right, to give priority to domestic violence situations’.1426 In a practical sense, even if the amendments only made it easier for police to exercise powers they already had, such an easing would help encourage police to be more active, which was the intention.
The third notable development was the enactment of random breath testing powers in 1982.1427 The legislation that was enacted and the approach put in place was largely based on the recommendations of the Parliamentary ‘Staysafe’ Committee.1428 One of the key recommendations was that new powers must form part of an integrated package including intensive, high profile, enforcement and an extensive publicity campaign against drink driving.1429
Even though this was one of the most dramatic extensions to police powers ever enacted, police had been notably absent from much of the debate. Indeed, in 1982 when the Queanbeyan Branch of the Police Association proposed a motion calling for random breath testing, the Association’s Executive ruled the motion outside the Association’s objects and hence out of order.1430 Only after the successful debut of testing did the Association take a strong stance in favour of these
1423 LA v 3/172 at 2778 (Mr Moore, 23 November 1982). 1424 LA v 3/172 at 2789 (Mr Debus, 23 November 1982). 1425 The amendments were coordinated by a unit within Premier Wran’s Department and Wran himself delivered the second reading speech on the Bill: LA v 3/172 at 2366-74 (9 November 1982). 1426 LA v 3/172 at 2368 (9 November 1982). 1427 Motor Traffic (Road Safety) Amendment Act 1982. 1428 Staysafe (1982: 43-51). 1429 Staysafe (1982: 47-51). 1430 NSW Police News (1982: May at 21). 309
powers.1431 Interestingly, in Britain the Police Federation (ie, union) was actually a key opponent of random breath testing from the late 1960s to the 1980s. This was one reason for the failure of efforts to secure such laws in Britain.1432
The domestic violence reforms, the mandatory breath testing guideline, and the random breath testing laws were all indicative of the way in which criminal justice policy had changed since the 1960s. In each case, more robust enforcement was sought from police by the elected government. The response to crime was no longer simply a matter for police and the judiciary. In an era of law and order, governments were more frequently and more openly trying to push outcomes. Mechanisms to influence police powers and the way they were exercised were an important part of the new tool set.
Utilising Technology
Developments in science and technology have had a major impact on police criminal investigation powers in NSW, and on the debate about those powers. The greatest direct impact has been in making certain powers possible. Many contemporary powers are dependent on a piece of sophisticated technology, including listening devices, video cameras,1433 tracking devices,1434 and telephone tapping apparatus. The introduction of breath and blood testing powers in 1968 followed closely on the heels of the development of inexpensive, convenient and reliable testing devices, and the emergence of credible scientific analysis linking testable intoxication with driving impairment.1435
On the other hand, the rhetoric that surrounds technological development can
1431 NSW Police News (1983: March at 11). 1432 See Light (1994: 61-65, 95, 100-5, 134-38). 1433 Schedule 6 to the Crimes Legislation Amendment Act 2000, amending section 3 of the Listening Devices Act 1984. 1434 Schedule 6 to the Crimes Legislation Amendment Act 2000, amending section 3 of the Listening Devices Act 1984. 1435 See Chapter 2. 310
sometimes exaggerate the relationship between legal and technological change. For example, when the Listening Devices Bill 1984 was drawn up to replace the Listening Devices Act 1969, the NSW Attorney-General argued that: ‘the rapid development of technology in this field has rendered those laws [ie, the 1969 Act] utterly inadequate to cope with the threat which is posed to individual privacy by the use of listening devices’.1436
Yet a comparison of the 1969 and 1984 listening devices laws reveals that virtually none of the differences between them are directly attributable to technological change. In particular, the definition of ‘listening device’ was carried across unchanged from the 1969 Act to the 1984 Act.1437 Rather, the 1984 Act was the result of a policy decision, following on from the use of electronic surveillance against Premier Wran, to tighten existing controls.1438 Maximum penalties for unauthorised use of a listening device were significantly increased, and police were required to seek authorisation for their use from a judicial officer rather than a senior police officer.1439
The technology/ law reform link was also muted in the case of telecommunications interception powers. The technology was sufficiently advanced for the Australian Security Intelligence Organisation to be given such powers in 1960,1440 and for tapping to be conducted by some NSW police from 1968.1441 Yet NSW Police did not receive these powers until 1987. Since then, technological developments have been more central to debates about the future shape of telephone tapping laws. In particular, the proliferation of mobile telephones has greatly magnified the challenges involved in interception. Justice
1436 LA v 3/179 at 1092 (Second reading speech by the Attorney-General, Mr Landa, 17 May 1984). 1437 Listening Devices Act 1969, subsection 3(1). Listening Devices Act 1984, subsection 3(1). 1438 See ‘Hard line by Wran on phone tapping’: SMH (1984: 23 January at 2), ‘Mr Wran outlaws the eavesdroppers’: SMH (1984: 23 January at 8). 1439 Under section 13 of the Listening Devices Act 1969 the maximum penalty for a repeat offence was 12 months imprisonment and/or a $2000 fine. Section 8 provide for authorisation by a senior officer. Under section 11 of the Listening Devices Act 1984 the maximum penalty for a first or repeat offence was 5 years imprisonment and/or a $10000 fine. Authorisation was governed by Part 4. 1440 Telephonic Communications (Interception) Act 1960 (Cth), sections 6 and 7. 1441 Stewart (1986: ch 7). 311
Wood highlighted some of the key challenges to emerge from the prevalence of mobile telephony by the late 1990s. These included the lack of records kept by mobile telephone service providers to assist police to identify a particular user and their calls, and the fact that a warrant had to be directed to a particular ‘SIM’ card, which could then easily be replaced by a criminal to evade interception. In light of problems such as these, Justice Wood called for a rethinking of the whole approach to law reform in this area. He called for continuous monitoring of technological developments and their implications for the legal framework, and for the Commonwealth to devolve legislative responsibility to the States and Territories to speed the reform process.1442
Justice Wood also suggested other legislative reforms in response to developments in technology, for example a warrant regime to authorise and regulate video surveillance on private premises.1443 Indeed, Justice Wood was particularly keen to see police capitalise on technological opportunities, seeing electronic surveillance as a safe and objective means of gathering evidence, remote from the personal interactions from which corruption could arise.1444 The Listening Devices Act 1984 was subsequently amended to bring the use of video surveillance and the use of tracking devices within the listening device regime.1445 The rise of the Internet has also created calls for new kinds of investigatory power. Among these are remote access (ie, hacking into a computer believed to contain evidence of a crime),1446 monitoring of electronic mail (via a telecommunications interception warrant); and the authority to compel an Internet Service Provider to retain and disclose records of on-line activity.1447
A notable indirect impact of technological developments has been to bring new
1442 Wood (1997: 452-55). 1443 Wood (1997: 457-59). 1444 Wood (1997: 448-49). 1445 Schedule 6 to the Crimes Legislation Amendment Act 2000, amending section 3 of the Listening Devices Act 1984. 1446 Schedule 1 to the Australian Security Intelligence Organisation Act 1999 (Cth), inserting section 25A in the Australian Security Intelligence Organisation Act 1979 (Cth); proposals by the NSW Director of Public Prosecutions: ST (2000: 15 October at 51). 1447 European Committee on Crime Problems Committee of Experts on Crime in Cyberspace, Draft 312
lobby groups into the debate about criminal investigation law. In March 1989, for example, it was reported that the first ever DNA sample to be employed in a NSW criminal trial were being handled for the NSW Police Service by a private firm called Forensic Investigations. The former police officer running this firm declared that he would lobby for the enactment of broader forensic testing powers under NSW law.1448 On the other hand, groups representing computer users and Internet service providers have proven to be vocal and committed campaigners against any legislative fettering of their liberties, opposing powers that could be employed against them.1449 There is a close correlation between the rise of new technology, the emergence of concerns about privacy, and the frequently central role of privacy bodies in law reform debate in recent years (for example, in respect of telecommunications interception and forensic procedures).1450
Legislative reforms that reflect technological developments have often provoked particularly emotive debate, as in the case of telephone tapping powers, discussed in chapters 2 and 4, and the more recent debate about forensic procedures. In the case of forensic procedures, the legal powers involved, such as taking a blood sample or a swab from the skin, do not in themselves depend on any new science or technology Rather, advances in science have made the exercise of these powers worthwhile, by allowing samples taken from a person to be profiled and compared to samples taken from a crime scene. In particular, DNA profiling has offered a way to demonstrate a very high likelihood that a suspect was at a crime scene (ie, by showing that the suspect left some DNA behind, in skin, hair, blood or semen).
Well into the 1990s, the investigatory value of DNA remained largely untapped. The 1990 Bill to enhance NSW police powers to obtain forensic samples was presented in low key terms, with Attorney-General John Dowd simply noting that
Convention on Cybercrime, Article 20. 1448 SMH (1989: 4 March at 3). 1449 See, for example, Senate Legal and Constitutional Legislation Committee (2001: 13-18). 1450 See chapters 5 and 8. 313
forensic science was becoming ‘more important’.1451 Speaking to the 1995 amendments to give NSW police power to take blood, hair and saliva samples, Attorney-General Jeff Shaw described the amendments as an ‘interim measure’ in ‘this contentious area’.1452
In the late 1990s, reports of developments in Britain dramatically changed the tenor of the debate in Australia. Britain had established a forensic database in 1995, and English police had powers to take blood and other samples under the Police and Criminal Evidence Act 1984. In May 1999, an Australian report noted that over 500 000 samples had been profiled and placed on the British database, which was being used to clear up an average of 333 crimes per month.1453 Early in 2000, British police gave NSW authorities a formal briefing on the database.1454 The impact of the British database was variously described as ‘startling’ (by Prime Minister John Howard),1455 ‘dramatic’,1456 ‘staggering’1457 and as a ‘massive’1458 or ‘enormous’1459 success. The claims were anecdotal.
The attention paid to the database highlights a particular irony. Since the 1980s, developments in Britain have often been cited as precedents for legal change. The ‘free British way’ paradigm that emphasised stability and non-reform was long gone. As one NSW police officer put it in 1989:
On most occasions when proposals are put forward to amend the law in New South Wales there is a cry, that the particular changes… will destroy or strike at the great legal principles to be found only in the British System of Justice…
1451 LA v 3/214 at 2532 (Second reading speech, 8 May 1990), ‘New laws to Cover DNA Testing’ Media Release by the Hon John Dowd (NSW Archives Box 18/3876). 1452 LC v 3/245 at 541 (Second reading speech by the Attorney-General, the Hon Jeff Shaw, 1 June 1995). 1453 MCCOC (1999: 1). 1454 SMH (2000: 27 March at 2). 1455 Press Release 16 September 1998 (Karl Alderson Personal Papers). 1456 The West Australian newspaper (2000: 7 August at 28). 1457 LA (Mr Hartcher, 6 June 2000) - not yet printed in volume form, ACT Justice and Community Safety Minister Gary Humphries - CT (200: 13 February at 1). 1458 CM (2000: 9 February at 16). 314
[However] the British System of Justice is extremely dynamic… the law, and indeed the principles upon which it is based, are undergoing constant and indeed dramatic change in Britain.1460
Praise for the success of the British database was matched by enthusiastic predictions for NSW and Australia. Premier Carr said that proposed NSW forensic procedures legislation would ‘revolutionise policing’ in NSW.1461 Police Minister Paul Whelan said it would ‘reform policing as we know it’.1462 Even the leader of the Opposition in the upper house described the 2000 Bill as a ‘very exciting piece of legislation’ that ‘could achieve some quite fantastic results’.1463
The hype about DNA evidence undoubtedly outstripped the reality.1464 For example, in October 2001, it was reported that the collation of DNA samples from prisoners into a database was being undertaken by a retired police officer working part time and alone, and that just one prisoner/ crime scene match had been made.1465 However, the clamour to talk up forensic powers was not surprising, given the presentational merits of legislation on this topic. Forensic procedures offered a unique combination of advanced science to investigate ordinary cases. Advanced ‘scientific’ powers are attractive, because they offer the prospect of the police being more effective than the criminals. They also fit well with attempts by policing organisations to present themselves as professional and modern, sophisticated and forward looking. Commissioner Ryan’s ‘Future Directions’ document released late in 2000 was a classic example of this, promising as it did a ‘massive upgrade’ in crime-fighting technology.1466
Yet the powers usually associated with advanced crime fighting (telecommunications interception, listening devices) suffer from a presentational
1459 Victoria Police Chief Neil Comrie in the Herald Sun newspaper (1998: 24 June at 10). 1460 Ireland (1989: 108). Italics in original. 1461 SMH (2000: 27 March at 2). 1462 LA (Second reading speech, 31 May 2000). Not yet printed in volume form. 1463 LC (Hon M Gallacher, 7 June 2000). Not yet printed in volume form. 1464 See, for example, Saul (2001: 94). 1465 ST (2001: 28 October at 7).
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draw-back. They are targeted at the almost mythical realm of organised crime. Public concern in recent years has focused on traditional street level crimes relevant to personal security and order in the streets - robbery, assault, rape and murder.1467 Advanced electronic surveillance has offered only modest assistance to the prevention and detection of offences of this kind. Yet the traditional means of investigating street level offences (leg-work, questioning, finger-printing) do not offer exciting prospects for law reform. The taking, retention and analysis of forensic material was exciting and innovative, yet targeted at crime in the streets. Here was a criminal investigation power tailor made for the law and order agenda.
Perhaps the most important point to emerge from this discussion is that developments in science and technology have been as important to the rhetoric, symbolism and dynamics of debate as to the realities of policing. Technological advances have brought new constituencies into the debate about criminal investigation law. The symbolism of ‘high technology’ powers and innovation has also led to an exaggerated focus on the significance of sophisticated powers in the law enforcement. To some extent, this has obscured the fact that the day to day needs of police, and the day to day dangers of police misconduct, both depend heavily on the exercise of more mundane powers.
Achieving Balance
No word has been so popular in the debate about police powers of criminal investigation as ‘balance’. The terms of reference issued to the ALRC for its Criminal Investigation report were an early example. The ALRC was directed to have regard to ‘the need to maintain a proper balance between protection for individual rights and liberties on the one hand and the community’s need for
1466 For commentary, see SMH (2000: 9 December at 1, 4, 36). 1467 This is subject to the comment made earlier, that the September 2001 terrorist attacks on the United States has placed greater emphasis on the question of personal security against sophisticated crimes. 316
practical and effective law enforcement on the other’.1468 The ALRC placed the quest for balance at the heart of its report.1469
In the years since then, the word balance has been invoked in debate about criminal investigation law time and again, in Australia and elsewhere. In turn, a burgeoning academic literature has developed, critical of the over use and misuse of ‘balance’.
Andrew Ashworth argues that the term has been used to avoid giving proper priority to fundamental rights and values, and to give spurious weight to proposed solutions by pretending they have resulted from some objective ‘balancing’ exercise. By invoking ‘balance’, he argues, enhancement of powers and derogation of rights has been proposed and secured without rigorous analysis.1470
Sanders and Young have proposed a different alternative to ‘balance’, namely that the criminal justice system should be geared to maximising freedom. This would place powers and rights/safeguards on the same axis, to be combined in a manner that will maximise the collective freedom within society, taking into account the perspectives of suspects, victims and others.1471 Bronitt and Roche have expressed support for the idea that ‘dominion’ (or freedoms that can be enjoyed without social harm) should have a fundamental weight, rather than being poured into the balance mix to be at the mercy of other rights and interests.1472 John Braithwaite1473 and David Dixon1474 have each argued that the notion of ‘balance’ is misused to imply that there must be a trade-off between enhanced police powers and effectiveness and reduced suspects’ rights. Dixon argues that:
there is not necessarily an inverse relationship between powers and
1468 ALRC (1975a: ix). 1469 ALRC (1975a: xiii, 3). 1470 Ashworth (1998: 25-32, 306-8); Ashworth (1996: 229). 1471 Sanders and Young (2000: 51-61). 1472 Bronitt and Roche (2000: 94). 1473 Braithwaite (1989: 158-59). 1474 Dixon (1994, 1997: 283-84). 317
rights. Nor are rights ‘inefficient’ in terms of crime control… the notorious English miscarriage of justice cases… were appalling examples of crime control. The perpetrators of dreadful crimes have never been punished because police were too busy constructing evidence to substantiate their case theories, hunches, and assumptions of guilt, ignoring the rights of their innocent suspects in the process.1475
The intention behind these critiques is laudable, namely to encourage a more sophisticated approach to law reform that involves seriously considering the implications of different options, rather than reeling off extra powers with a rhetorical allusion to ‘balance’. Yet there is also something missing from these critiques. None pursues the point that ‘balance’ has in many ways become the currency of police powers debate, and has been employed to mean a wide range of things. The widespread and diverse invocation of balance illustrates two important points. One is that in policy/ political debates, there can be a dominant discourse, that can make it difficult to present different ideas in different language, lest those ideas be declared irrelevant to the terms of the debate. The second is that discourse can be circumvented from within, using dominant language to present different ideas, and therefore pursue the debate from ‘inside’.
These points were made by Rock in his study of policy development cited in the first chapter.1476 They have also been highlighted many times in the course of my own experience of policy formulation within government. I have observed time and again that much greater influence can be exerted within internal deliberations by co-opting the language and style of those with opposing views, so that the alternative being put is seen as an ‘inside perspective’ rather than an ‘external criticism’. It is a lesson not lost on a diverse array of participants in the debate about criminal investigation law reform, judging from the diverse use of the ‘balance metaphor’.
1475 Dixon (1997: 59). 1476 Rock (1995: 4-5). 318
The first use of ‘balance’, which could be called the ‘restoration’ metaphor, is to deploy the word as a symbol of the need to return to an earlier, more appropriate legal framework. Balance is something to be restored, to the way it was in an earlier time when police had full legal authority to investigate as they saw fit, and hence a stranglehold over crime. The term is employed to encourage and support the conferral of broad powers on police, relatively unconstrained by legal restraints that would stand in the way of old-style police discretion.
The Reverend Fred Nile was a consistent exponent of this view in the NSW Parliament. For example, in supporting the Police Powers (Vehicles) Bill 1998, he said that:
From the time the Hon. Frank Walker became Attorney General police have been gradually stripped of their powers and authority. This bill is an attempt to rectify that position and return to a balance… police authority has become so undermined that police have become the butt of ridicule.1477
The reference to Frank Walker is a particular feature of the history of events in NSW, and relates to his repeal (as Labor Attorney-General) of a range of minor ‘public order’ offences including vagrancy in 1979. The idea of redressing some current imbalance has often been invoked, even if there is no attempt to define when and how things used to be better. For example, Attorney-General John Dowd said that the Telecommunications (Interception) (New South Wales) Bill 1987 would ‘redress the balance in favour of society’.1478 Police Minister Paul Whelan said that the Police Powers (Vehicles) Bill 1998 would help ‘tilt the balance back in the victim’s favour’.1479 This unexplained presumption of an earlier, better time is consistent with the account by Hogg and Brown suggesting that such ‘nostalgia’ is a recurring feature of contemporary ‘law and order’
1477 LC v 3/269 at 10855 (27 November 1998). 1478 LA v 3/199 at 16554 (Mr Dowd, 19 November 1987). My italics. 1479 LA v 3/268 at 9903 (Second reading speech by the Minister for Police, Mr Whelan,
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thinking.1480 The use of balance in this way is quite powerful, because it builds in a strong implication that there is a natural and obvious path for reform to follow, that is, in the direction of restoring an identifiable ‘balance’ that previously existed. It also demonstrates a commitment to ‘going back’, a reassuring idea in a time of social anxiety.
The second use of balance, which might be termed the ‘society prevails’ metaphor, is to suggest that the obvious and necessary direction of reform is to promote the interests of society in effective law enforcement at the expense of the rights of the individual. The choice is made to seem simple, for example: ‘it is a question of weighing the rights, privileges and responsibilities of all law-abiding people against those of law breakers’.1481 It is taken as a given that until balance is imposed, selfish interests will continue to hold sway at the cost of community interests: ‘the ‘rights’ of the guilty are paid for by placing an unjustified charge upon the innocent’.1482 Even sober commentators have promoted this perspective. Justice Wood concluded his arguments in favour of expanding electronic surveillance powers by contrasting the ‘individual interest in privacy’ with the ‘broader public interests in effective law enforcement, corruption prevention and preservation of the safety of the community’.1483
This use of ‘balance’ is the use to which the criticisms of academic commentators have most frequently been directed. Its rhetorical strengths match its conceptual flaws. Those dealt with by police are presumed to be ‘the guilty’. Society is presumed to have an interest in broad police discretions to fight crime, but no interest in protection of rights and prevention of police misconduct. Police discretions are deemed more important than rights and limitations. Police effectiveness is presumed to be maximised by unconstrained discretion. The fact
12 November 1998). My italics. 1480 Hogg and Brown (1998: 21). 1481 This was a comment in support of amendments to toughen up the knife control measures in the Crimes Legislation Amendment (Police and Public Safety) Bill 1998: LA 3/263 at 4171 (Mr Tink, 29 April 1998). 1482 Drew (1989: 1). 1483 Wood (1997: 450). 320
that careful use of the metaphor can convey so many ideas makes its use in this sense a powerful tool in public debate, but the presumptions on which it rests lack factual justification.
The third use of balance, which can be labelled the ‘real trade-off’ metaphor, also involves a weighing of community against individual interests. However, in this case, the term is used in a way that acknowledges the need to protect individual interests. For example, one Labor MLA described the Listening Devices Bill 1984 as:
an attempt to balance two competing principles… society must protect itself from wrongdoers who engage in anti-social behaviour. On the other hand is the equally important and competing principle that people are entitled to have their privacy and dignity preserved.1484
Those supporting the protection of liberties and the regulation of police have employed balance in this way. The Hon Helen Sham-Ho, for example, called for limitations on the road-block and vehicle search powers in the Police Powers (Vehicles) Bill 1998 to ‘ensure a fair balance’.1485 Academic commentator Jeremy Gans argues that the availability of new investigatory techniques to police can ‘disturb… the traditional balance between the criminal justice values of crime control and due process’.1486
The strength of the use of the term in this sense is that it gives those concerned about liberties and safeguards ‘buy in’ to the debate. The pervasive use of ‘balance’ entrenches the idea that balance is important to the framing of police powers. This leaves the door open to make a case for a different kind of ‘balance’ to that sought by those employing the ‘restoration’ and ‘society prevails’ approaches. It can be easier to make the case this way, than to make the stand
1484 LA v 3/179 at 1309 (Mr Mochalski, 22 May 1984). 1485 LC v 3/269 at 10853 (27 November 1998). 1486 Gans (2001: 38). 321
(along the lines suggested by Ashworth, Sanders and Young) on the basis of fundamental rights or the maximisation of freedoms.
A variation on this ‘real trade-off’ concept involves reference to balance as a political compromise between competing groups rather than as a conceptual compromise between competing values. Attorney-General Jeff Shaw presented the Crimes Amendment (Detention After Arrest) Bill 1997 in that light:
I am pleased with this legislative package which has the element of balance. It compromises the things that must inevitably be compromised… Throughout the lengthy and exhaustive negotiation process… the Government has tried to forge a balanced or middle position.1487
Similarly, Peter Sallmann argued in an article critical of police influence in the debate about their powers that police could not ‘expect to be the final arbiters of what is to be done. Governments must make balanced and often politically difficult decisions on these questions, taking all interests and points of view into account’.1488 Andrew Parkin has used balance in this sense, in arguing that the notion of balance provides the ‘most guidance’ to those wishing to ‘promote intelligent and worthwhile policy reform’.1489
The ‘real trade-off’ use of balance is an interesting variation, because unlike the uses mentioned previously, it is not designed as an implicit argument for a particular substantive outcome. Rather, it is used to close off the substantive debate, by suggesting that the agreed goal of ‘balance’ has been achieved, whether or not the substantive aspirations of those involved in the debate have been met. It shows that even when the substance of the debate has taken place, there is still benefit to be had in packaging the outcome in familiar and comfortable terms.
1487 LC v 3/263 at 11332 (27 June 1997). 1488 Sallmann (1986: 204). 1489 Parkin (2000: 112-13). 322
The fourth use of balance, the ‘regulation matters’ metaphor, directly contradicts the ‘restoration’ and ‘society prevails’ metaphors, to promote the idea that individual interests are important and that powers should be coupled with legislative regulation and accountability. For example, it was said that the Law Enforcement (Controlled Operations) Act 1997 sought to strike a ‘balance’ to ensure that evidence could be collected lawfully and that there would be a ‘high level of accountability’.1490
This idea has been central to the regulatory paradigm of the last twenty years. In advancing new powers, governments have generally sought to emphasise counter- vailing controls and safeguards. For controlled operations, there was said to be ‘accountability at every step of the process in this bill’.1491 Even the Crimes Legislation Amendment (Police and Public Safety) Bill 1998 was said to contain a ‘wide range of safeguards’.1492
These varying uses of balance illustrate the way in which language can be used to influence debate. Balance has a well established place in the language of the police powers debate. Deploying this term, with a particular spin, is an easier route to influence than attempting to challenge dominant terminology. This helps to explain why it remains an extremely popular reference point in debate, despite the scathing critiques of academic commentators. This illustrates Rock’s point, that ‘the argument of policy making does not necessarily model itself on the reasoning of criminology and the social sciences’.1493 In the policy debate, loss of conceptual rigour and clarity may be considered a price worth paying in order to be able to successfully engage with the dominant discourse.
1490 LA v 3/275 at 3703 (Hon J Hatzistergos, 17 November 1999). 1491 LA v 3/262 at 2323 (Second reading speech on behalf of the Minister for Police, 20 November 1997). 1492 LA v 3/263 at 3970 (Second reading speech by the Minister for Police, Mr Whelan). 1493 Rock (1995: 7). 323
Conclusions: The Impact of Powers
Numerous studies have shown that the prime determinant of success in clearing up a crime is information provided by the victim or another member of the public, shortly after the offence occurs. Furthermore, if this information is high quality (detailed, accurate), the offender is likely to be caught; if it is not, the offender probably will not be caught.1494 This suggests that police powers are likely to have a surprisingly modest impact on the number of crimes successfully investigated.1495 Hogg and Brown have argued that in light of the fact that the vast majority of crimes are not reported and that most that are reported are not prosecuted ‘the manipulation of criminal justice measures to combat crime looks rather fanciful’.1496
This helps to explain why the common law ‘citizen in uniform’ model was viable, even aside from police bending the rules and courts turning a blind eye to misconduct. Many crimes can be solved without coercive powers. Tools other than law (for example, good training, community policing frameworks) are central to the effective investigation of crime. Former NSW Police Commissioner John Avery went so far as to argue that ‘police are relatively unimportant in the enforcement of law’.1497 The conclusion was central to his promotion of community policing.1498 Police powers have been oversold as a criminal investigation strategy. Even when, in recent times, it is claimed police have precipitated a heroin drought, the explanation offered has centred on the resources and level of determination involved, rather than on new powers. Furthermore, as noted in chapter 5, it is questionable whether policing has had much to do with the drought.1499
1494 See Reiner (2000: 77-78, 118-21) and the extensive list of references cited therein. 1495 Hogg (1997: 121-24). 1496 Hogg and Brown (1998: 9). 1497 Avery (1980: 207). 1498 Avery (1980: ch 14). 1499 See Weatherburn, Jones, Freeman and Makkai (2001: 2). 324
Given that the prevalence of crime is largely independent of the scope of powers conferred on police, there is a fundamental problem at the heart of modern policing, one highlighted in the work of leading academic analysts of policing. Manning has argued that police have themselves defined crime control as central to their role; yet they have little power to control crime.1500 Bittner has argued that the ‘war on crime’ has exacerbated this phenomenon. Greater and greater commitments have been made to this ‘war’, yet crime cannot be vanquished. 1501 It has been argued that the unacknowledged limitations on police crime fighting capabilities create a long term threat to the credibility and legitimacy of police.1502 In 1986, Sallmann offered a warning along these lines, suggesting that there was ‘growing sense in the Australian community that the police are losing the battle against crime’. He suggested that this represented a ‘problem for the police and the community of significant dimensions’.1503 As Hogg and Brown point, it beggared belief that in the 1990s American and British authorities were still presenting ‘tough’ law and order initiatives as a response to past ‘lenience’. Britain had enjoyed a decade and a half of Conservative rule; the American prison population has risen 6-fold in 2 decades, to exceed 1 million persons.1504
Yet it is important to recognise that in fact police credibility and the legitimacy of the criminal justice system have not collapsed under the weight of the contradiction between crime control rhetoric and reality. It is true that measure after measure that was meant to tilt the battle against crime had no demonstrated impact. Somehow, each new initiative is meant to make all the difference, and somehow the lack of credibility of the process of offering up new powers does not undermine faith in the basic crime control paradigm.
Developments in NSW have not reached the stage which Garland sees elsewhere:
1500 Manning (1977: 15-17, 286-90). 1501 Bittner (1990: 132-36). 1502 Reiner (2000: 77-78). 1503 Sallmann (1986: 197). 1504 Hogg and Brown (1998: 123-28); Loveday (1992). 325
The predicament for governments today, then, is that they (ie, ministers, officials, agency executives etc) see the need to withdraw or at least qualify their claim to be the primary and effective provider of security and crime control, but they also see, just as clearly, that the political costs of such a move are likely to be disastrous.1505
Garland has pointed to evidence that ‘governments’ have attempted to face up to limitations on their capacity to provide crime control and security.1506 Reiner also argues that there has been some backlash in Britain against police for failing to meet the expectations created by law and order campaigns.1507 It may be that there has been greater disillusionment in Britain because no one could accuse former British Prime Minister Margaret Thatcher of softness - people realised that in some sense they had come as far as they could. In NSW, it is always possible to suspect an underlying softness in the approach of Labor or the Liberals.
One reason that new powers continue to be treated as important is that they offer an important symbol of continuing and improving efforts against crime.1508 The call for powers can also serve an additional important function for police. It offers a diversion, a chimera, that can account for the recurring reality that the efforts to control crime remain as limited as they ever were. Time and time again, police will emphasise how their lack of powers at present is a reason for their limited success. As long as there is some new power to seek there is an explanation for past and current failures.
In this sense, the police powers debate can be understood as a hot potato passed between the policing organisation and the elected government. As long as there is a power that has been publicly requested and not given, the blame for limitations on crime control rests with the government. When these powers are conferred, the blame can shift back to police. Ironically, then, having powers delayed or refused
1505 Garland (1996: 449). 1506 Garland (1996: 449). 1507 Reiner (2000: 77-78).
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may be politically beneficial to police. The impasse over the Criminal Investigation Bills can be seen in part in this light. On the other hand, handing powers to police can actually be a way for an elected government to pin them with blame. No wonder Police Minister Paul Whelan has boasted of ‘instant law’.1509 No sooner had Commissioner Ryan passed the hot potato of roadblock powers to the Government than it was back in his lap.
This is not to deny that there are legitimate grounds for police to seek additional powers, and that powers can usefully add to the capabilities of police or the confidence with which they can discharge their duties. The classic example of a power that demonstrably made a difference was the power to conduct random breath tests conferred on NSW police in 1982. The anti-drink driving measures implemented by the NSW Government, with random breath testing as the centrepiece, were a dramatic success. The number of deaths on NSW roads fell from 1291 in 1981 to 966 in 1983, the first full year of testing. With further intense publicity and other measures, the toll had fallen to 663 by 1991.1510 Homel has presented data to suggest that over 2000 fatal crashes were avoided in NSW between the introduction of random breath testing in December 1982, and June 1991.1511 This was a remarkably sustained success.
Studies by Cashmore and Homel have emphasised the vital role of heavy publicity and rigorous, high profile enforcement in the success of the measures. Indeed, Homel argues that random breath testing in NSW ‘must rank as one of the best enforced and widely publicised laws ever enacted’.1512 More than $1 million was spent on media advertising over Christmas 1982 and Easter 1983. Testing was intensive, with nearly 900 000 tests in the first year of random testing in NSW, compared to a mere 18 000 in Victoria’s first year.1513 The huge number of tests in the first year was almost a 9-fold increase on the number of non-random tests in
1508 See Garland (2001: 133). 1509 Dixon (1999a: 164). 1510 Small (1993). 1511 Homel (1994: 23). 1512 Homel (1994: 21).
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1982.1514 The success of random breath testing in NSW received international attention, as a best practice benchmark for other jurisdictions to follow.1515
This success did encourage proposals for new powers in other areas. In 1987, drug testing powers were incorporated into the breath testing legislation.1516 Where a person passed an alcohol breath test, police would be able to conduct a visual assessment of sobriety to assess drug intoxication. If this led to a reasonable suspicion of drug intoxication, the police officer could require the person to provide a blood or urine sample for testing.1517 In 1983, the President of the NSW Police Association argued that community approval of police holding the ‘extraordinary power’ to conduct random breath tests showed that special powers to fight organised crime should be conferred on police, not a Crime Commission.1518 Subsequent proposals for which random breath testing was cited as a source of legitimacy included proposals for random searches of persons in public places to check for knives,1519 random searches of the homes of firearms licence holders,1520 and the taking of blood samples from suspects.1521
The case for enhanced police powers has also been bolstered by perceptions that the effectiveness of policing in America has been transformed, making huge inroads into crime, particularly in relation to zero tolerance policing and the ‘New York miracle’. This has led to new-found confidence that police (including NSW police) can be effective in curtailing crime, and that therefore new powers may facilitate this process. The ‘New York miracle’ played a central role in debate about policing in NSW in the late 1990s. It was offered up as a model by those supporting greater police resources and powers and intensive enforcement
1513 Cashmore (1985: 5). 1514 Cashmore (1984), Homel (1985: 115-119). 1515 See, for example, Ross (1988: 73-76). 1516 See LA v 3/196 at 10738 (Second reading speech to the Motor Traffic (Road Safety) Amendment Bill 1987 by the Minister for Transport, Mr Mulock, 29 April 1987). 1517 Schedule 1(5) to the Motor Traffic (Road Safety) Act 1987, inserting section 5AA in the Motor Traffic Act 1909. 1518 NCC Conference (1983: 108). 1519 Police Association Vice-President Mark Burgess, quoted by Paul Whelan, Minister for Police: LA v 3/263 at 4161 (29 April 1998). See also LA v 3/263 at 4093 (Mr Peacocke, 29 April 1998). 1520 LC v 3/228 at 1061 (Hon E Kirkby, 17 March 1992). 328
strategies.1522 Different accounts of the New York experience were put forward by those who argued that it exemplified the danger of blindly importing slogans and strategies from overseas.1523
Powers are indeed important, even where their direct instrumental influence on police effectiveness is not clear. Work by Skolnick and others has emphasised that police misconduct can frequently be attributed to results pressure, not malevolence.1524 Police frequently face stronger incentives to achieve enforcement ‘results’ than to comply with rules. When the breaking of the rules becomes routine, Reiner argues, police may lose respect for the law in a more general sense, leading to less ‘justifiable’ breaches (for example, corruption). Conferral of realistic powers gives the law greater credibility and legitimacy with police, so that other legal limitations will be accepted (for example, compliance with safeguards attaching to powers). This is especially true if the limitations are compatible with the internal norms of police.1525 This line of reasoning has proven influential with a number of inquiries, from the ALRC Criminal Investigation report,1526 to the Lucas Inquiry in Queensland,1527 to the Wood Royal Commission.1528
The initial difficulty faced by Australian reformers was in finding any limitations that were considered by police to be compatible with their effective functioning and hence their internal norms. The hysterical reaction in the 1970s to the very idea of legal regulation showed that unregulated practices had become so ingrained that there was not much of a foot-hold from which regulation could gain legitimacy. This highlights the merit of incremental reform. A fully regulated system would have found little traction if imposed on unwilling police in the 1970s. The Criminal Investigation Bill was, for this reason, a flawed model.
1521 LC v 3/245 at 729 (Hon E Kirkby, 7 June 1995). 1522 Police Association of NSW (1999a), Darcy (1999). 1523 Dixon (1998), Cunneen (1999). For a detailed analysis of the ‘New York miracle’ and its causes, see Karmen (2000). 1524 Skolnick (1966: ch 8; 1994: ch 8). 1525 Reiner (2000: 169-76). 1526 ALRC (1975a: 3, 141). 1527 Lucas Committee (1977: 34-39, 244). 1528 Wood (1997: 36-38). 329
Gradual reform was not only a politically pragmatic way forward, there is also good reason to think it was more effective. It has offered better prospects for policing to acclimatise to regulation; for internal norms to change over time; for the powers/ regulation trade-off to find more acceptance.
As we have seen, the debate about police powers has been heavily influenced by many key factors. Two main lessons stand out. One is that a simple equation explaining expanded police powers as reflecting a combination of police influence, law and order politics and new technologies would be quite misleading. There are all sorts of complexities and subtleties even within these major headings. The idea of technology has often run ahead of the reality. A range of police perspectives have influenced debate, and some key developments have occurred with surprisingly little police input (random breath testing being a key example). Law and order paradigms have been influential, but governments have intervened even outside this paradigm (for example, in response to domestic violence) and those engaged in debate have been able to place themselves at the heart of the debate by subverting dominant discourse.
A second major lesson concerns the continuing interrelationship between symbolism and instrumental objectives. Real changes in technology have been mediated by ideas about technology to offer an even more powerful symbol. Real gains in powers can have symbolic disadvantages (a lost opportunity to pass the blame). The symbolism conjured up by words can be employed in pursuit of instrumental goals.
Law and order politics has been pervasive, but not all encompassing. At the same time as NSW police have gained many new powers, they have been made subject to much more extensive legal regulation. This is the subject of the next chapter.
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8. SEEKING SAFEGUARDS
Criminal investigation in NSW is subject to far more detailed legislative regulation than it was in 1945. In fact, the vast majority of this legislation has been enacted since the mid-1980s. The proliferation of criminal investigation legislation has not been unique to NSW. Bradley notes that there has been a ‘modern international trend’ towards ‘using statutory rules to govern the police’.1529 Similarly, Dixon argues that ‘the adoption of techniques of legal regulation has become increasingly common in attempts to change and control policing in a number of jurisdictions (including Australia, Canada, the United States, New Zealand, Scotland, England and Wales)’.1530 Within Australia, the trend to greater legislative regulation has been evident federally and across the States and Territories.1531
This chapter examines some key factors that have influenced the move to extensive legislative regulation of criminal investigation practice in NSW. The influence of the following factors is considered in turn: leading judicial decisions, concerns about the effectiveness of the judicial safeguard, the role of oversight bodies, desire to improve information flows, support for the regulatory ideal, and the impact of developments in other jurisdictions. The chapter concludes with a discussion of policing practice and legal regulation.
Leading Judicial Decisions
There was a fundamental difference to the approach taken to police powers of criminal investigation by Australian appellate courts, in comparison to their British counterparts, in the period from the 1960s and 1980s. In Britain, there was a pronounced trend on the part of the appellate judiciary to formally relax a range of
1529 Bradley (1993: 111). 1530 Dixon (1997: 124).
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restrictions on police powers and discretions.1532 The English Court of Appeal, with Lord Denning at the helm, took a leading role in this regard. For example, that court laid down what amounted to a police power to detain a suspect for questioning, in the 1965 case of Dallison v Caffrey.1533 Another example is that the court later held that police executing a search warrant were not confined to seizing items specified in the warrant. Police could also seize other items found in the course of the search that were relevant to the offence in respect of which the warrant was issued, or indeed, that appeared on reasonable grounds to be relevant to another offence.1534
By and large, the Australian courts, and in particular the High Court, have not travelled this route. Australian judges have often tacitly endorsed police practices that appear to lack formal legal authority, and it can be presumed that pragmatic considerations about the needs of policing have been central to this. However, the courts have generally not taken the extra step and moved to formally recast the substantive legal principles involved. The leading example of Australian judicial reticence to revise the formal legal framework in the interests of accommodating the ‘realities’ of policing practice is the 1986 decision of the High Court in Williams v The Queen.1535 The decision is particularly notable because of the significant impact that it had on the debate about legislative reform in NSW and because it illustrates the High Court’s influence in encouraging legislative reform.
The case concerned the vexed question of whether police had a formal power to detain a suspect for questioning. In practice, of course, the questioning of suspects under actual or implicit restraint was integral to the way that Australian police investigated crime.1536 Furthermore, English police now had formal legal
1531 Findlay, Odgers and Yeo (1999: 64), Leaver (1997: 187). 1532 Robilliard and McEwan (1986: 13-16), Baldwin and Kinsey (1982: 163). 1533 [1965] 1 QB 348. This principle was later endorsed by the House of Lords: Holgate- Mohammed v Duke [1984] AC 437. 1534 Chic Fashions (West Wales) Ltd v Jones [1968] 1 All ER 229; Ghani v Jones [1970] 1 QB 693. 1535 (1986) 161 CLR 278. 1536 See chapters 2, 3 and 6. 332
authority to detain suspects for questioning, following Dallison v Caffrey.1537 Yet in Williams, a majority of the justices of the High Court stood against this trend, and reaffirmed the accepted position in Australian law that police were required to take a suspect before a justice as soon as practicable after arrest, and could not delay this process to question the suspect.
Williams had been arrested at 6am and interviewed between 1.10pm and 8.30pm, yet he could have been taken before a justice at 3.15pm.1538 Justices Mason, Brennan, Wilson and Dawson held that there was no common law power to delay taking an arrested person before a justice for the purposes of furthering an investigation. The investigatory detention power found to exist in England was expressly held not to form part of the common law of Australia.1539 Accordingly, confessions obtained from Williams after 3.15pm had been unlawfully obtained and were therefore properly excluded from his trial. Only Chief Justice Gibbs, in dissent, would have followed the English authorities in holding that the taking of a suspect before a justice could be delayed while questioning continued.1540
The decision has a number of interesting features. First, it can be seen as following on from the High Court’s earlier decisions directed against unsigned records of interviews and the problem of verballing, which were discussed in chapter 6. By limiting the time in which police could hold a suspect ‘alone’ the scope for verballing would be reduced.1541
Secondly, even though the decision simply reaffirmed a long line of Australian authorities (many from NSW), including Clarke v Bailey,1542 Bales and Parmeter,1543 Ex parte Evers; Re Leary1544 and R v Iorlano,1545 it caused severe
1537 [1965] 1 QB 348. The House of Lords confirmation of this principle in Holgate-Mohammed v Duke [1984] AC 437 preceded the Williams decision by two years. 1538 (1986) 161 CLR 278-83 per Gibbs CJ. 1539 (1986) 161 CLR 278 at 295 (Mason and Brennan JJ) and 306 (Wilson and Dawson JJ). 1540 (1986) 161 CLR 284-85 per Gibbs CJ. 1541 Kable (1989: 1, 11). 1542 (1933) 33 SR 303. 1543 (1935) SR (NSW) 182. 1544 (1945) 62 WN 146. 333
consternation in NSW law enforcement. The Reverend Fred Nile perhaps best summarised these sentiments when he later said the decision had been ‘ridiculous’ because it ‘clearly did not help police’.1546 In the immediate aftermath of the decision, the Police Prosecution Branch reported to the Commissioner that the decision was of ‘extreme importance’ to police. It suggested that the Minister for Police be asked to pursue ‘specific statutory guidelines’.1547 In turn, the Commissioner advised the Police Minister that Williams had generated ‘great concern in this Force’ and would ‘be relied on, with increasing frequency, to render evidence obtained after arrest inadmissible’. As a result there was an ‘urgent need’ for legislation.1548 The National Crime Authority also made representations to the NSW Police Minister, and his counterparts elsewhere in Australia, calling for urgent remedial legislation.1549
In turn, the Police Minister wrote to the Attorney-General, warning that without remedial legislation, the Williams decision would ‘severely inhibit the ability of police to carry out adequate criminal investigations’. He requested that ‘urgent consideration’ be given to legislation to allow police to detain a suspect for up to 6 hours.1550 The Attorney-General was not inclined to give the green light, and referred the matter to the Law Reform Commission. Importantly, he asked the Commission to look not only at the Williams decision, but to also ‘review the whole question of the rights and powers of the Police following arrest’.1551
Police Commissioner Avery remained concerned, and called for legislation to confer ‘the right to detain a suspect for questioning for a reasonable period of
1545 (1983) 151 CLR 678. 1546 LC v 3/259 at 11329 (27 June 1997). 1547 Chief Superintendent of the Police Prosecuting Branch to the Commissioner of Police, 13 October 1986 (NSW Archives Box 18/3876). 1548 Included with Minister for Police and Emergency Services to the Attorney-General, 2 December 1986 (NSW Archives Box 18/3876). 1549 Chairperson of the National Crime Authority to the Minister for Police and Emergency Services, 7 January 1987 (NSW Archives Box 18/3876). 1550 Minister for Police and Emergency Services to the Attorney-General, 2 December 1986 (NSW Archives Box 18/3876). 1551 Attorney-General to the Chairman of the Law Reform Commission, 21 January 1987 (NSW Archives Box 18/3876). 334
time’.1552 The NSW Police Association supported these calls, arguing that the Williams decision had ‘vitally affected the power of Police to question offenders after arrest’.1553 The Police Federation of Australia and New Zealand called on all governments to give police ‘adequate legislated authority to detain suspects’.1554 The following year there was uproar when a drug squad officer who had questioned a suspect at length, after the suspect had been shot in the knee, was sued for wrongful detention on the basis of the legal principle reaffirmed in Williams.1555
The Police Association reported that the entire NSW Police Force was ‘seething’ at this turn of events. Eighty drug squad detectives met to demand urgent action from the Government and to threaten to make no further arrests until the issue was clarified.1556 The Police Association called on the Government to ‘state publicly that police can take arrested people into custody for questioning’.1557 Attorney- General Dowd moved to provide reassurance to police, both publicly and privately,1558 saying there was ‘no question of police officers facing personal liability if they are carrying out the policies of this State’.1559
Understood against the long line of authority followed in Williams, these strong reactions make little sense. The reactions can only be understood against the backdrop of institutionalised judicial acceptance of detention for questioning in NSW, described in chapter 6.1560 The situation was well summarised by NSW Police Commissioner John Avery when, in 1987, he explained that the NSW Supreme Court had taken a ‘broad view of the law in this area, and has not regarded it as unfair or improper, for police to question a person for a reasonable
1552 Avery (1987: 28). 1553 Taylor (1987: 3), Howe (1987), Australian (1988: 9 May at 2). 1554 NSW Police News (1989: September at 15). 1555 See LC v 3/202 at 1607 (Hon E Pickering, Minister for Police and Emergency Services, 7 June 1988), Australian (1988: 9 May at 2). 1556 ST (1988: 8 May), Lloyd Taylor Interview, 5 June 1997. 1557 ST (1988: 8 May). 1558 Lloyd Taylor Interview, 5 June 1997. 1559 ST (1988: 8 May). My italics. 1560 See also Dixon (1997: ch 5). 335
time, even though it was practicable to place that person before a Justice’.1561 The High Court’s decision generated fear that NSW judges might cease to ‘go along with’ detention for questioning by NSW police, although as noted below, this fear was in fact to prove groundless.
Importantly, this shock to the system set NSW down the road to legislative regulation of detention for questioning. In the context of the Commonwealth Criminal Investigation Bills, the NSW Police Force and Police Association had expressed little interest in securing extra powers, if the trade-off was accepting stricter regulation. Police did not need the extra powers. Their actions were not hampered by legal constraints imposed by the NSW courts. The fear that this had changed in the aftermath of Williams provided a strong incentive for the NSW Police Force to seek extra powers, and inevitably opened the way to accepting greater regulation as the necessary trade-off. This is exactly how events unfolded. By asking for extra powers, Commissioner Avery precipitated a reference to the NSW Law Reform Commission. That Commission would firmly recommend detailed legal regulation, and it was then difficult to secure new powers without account being taken of these other recommendations. Although Williams exerted little lasting influence on policing practice in NSW, it provided a short term shock that exerted a profound influence on the law reform debate.
Other judicial decisions have had a similar impact. Another leading Hugh Court case was Ridgeway v R,1562 handed down in 1995. In that case, Federal police had worked together with an informant to carry out a proposed importation of heroin arranged by Ridgeway. Ridgeway was then apprehended and prosecuted after taking delivery of the heroin, and convicted of possession of unlawfully imported narcotics.1563 A majority of High Court judges held that Federal police had themselves been responsible for one element of Ridgeway’s offence, namely the importation of the narcotics into the country. This illegality had seriously tainted
1561 Police Commissioner, Submission to the Minister for Police and Emergency Services, 29 October 1986 (NSW Archives Box 18/3876). 1562 (1995) 184 CLR 19.
336
the evidence of importation, which these judges felt should not be admissible against Ridgeway.1564 The Court quashed Ridgeway’s conviction and permanently stayed any future prosecution for the importation offence.1565
The decision laid down a new discretion for excluding evidence, based on law enforcement participation in the offence. The expressed need for legal authority for undercover operations was also novel, in that the conduct of undercover operations without formal legal powers had been a long standing policing practice. In NSW, for example, the Police ‘Observation Squad’ had long been responsible for such operations.1566 On the other hand, the underlying principle was far from novel, namely that police had no inherent authority to break the law, regardless of the enforcement benefits that might be derived from doing so.
As with Williams, the decision caused a significant short-term shock. The preparation of remedial legislation to confer relevant powers on Federal law enforcement officers was given an extremely high priority. I was involved in this process. There was strong pressure to outline a possible legislative response on the day of the decision, and to provide detailed proposals within a couple of days. The proposals provided the basis for the reforms subsequently enacted in the Crimes Amendment (Controlled Operations) Act 1996 (Cth). The NSW Law Enforcement (Controlled Operations) Act 1997 followed similar lines.
A third example of a judicial decision that created pressure for legislative reform was Fernando v Commissioner of Police.1567 In that case the NSW Court of Appeal held that section 353A of the NSW Crimes Act 1900, which allowed for an ‘examination’ of a person for evidence of an offence, provided no authority for
1563 (1995) 184 CLR 19 at 25-27 per Mason CJ, Deane and Dawson JJ. 1564 (1995) 184 CLR 19 at 33, 38-39 per Mason CJ, Deane and Dawson JJ, at 52-53 per Brennan J and at 62-64 per Toohey J. 1565 (1995) 184 CLR 19 at 44 per Mason CJ, Deane and Dawson JJ, at 54 per Brennan J, at 65 per Toohey J, and at 94 (court order). 1566 Arantz (1993: 16), NSW Police News (1980: July at 15). 1567 (1995) 36 NSWLR 567. 337
invasive procedures, such as taking of blood.1568 This was contrary to the understanding of the NSW Police Service, which had relied on the power for this end. Within three months of that March 1995 decision, the NSW Government had secured the enactment of explicit power to take samples of blood, saliva and hair.1569 More comprehensive legislation was enacted in 2000.1570
A number of common themes run though these decisions. In each case, the Police Service was comfortable operating in the absence of a formal legal framework, and for a long period had not run up against any problems in the courts. The decisions of the High Court and NSW Court of Appeal in these cases delivered a shock that created fears in policing circles about sustaining their practices in the absence of formal powers. By pursuing formal powers, police opened themselves up to legal regulation, and in each case the powers that were ultimately enacted were coupled with restrictions and safeguards, the terms of which are discussed further below. In that sense, there was a close relationship between developments in ‘judge made’ law and in legislation, with the courts providing significant impetus for the legislative regulation of criminal investigation.
Concerns about the Judicial Safeguard
Perhaps ironically, while the senior levels of the judiciary have done much to encourage legislative regulation, much of the substance of legislative regulation has been directed to the role of judicial and quasi-judicial officers in the criminal investigation process. Justices of the peace and magistrates have long held the role of issuing arrest and search warrants under legislation. As the legislative framework governing criminal investigations has grown, so has the role of Supreme Court judges, Local Court magistrates, and justices of the peace.1571
1568 (1995) 36 NSWLR 567 at 572, 583-84 per Priestley JA and at 593 per Powell JA. 1569 Schedule 1 (11) to the Crimes Legislation Amendment Act 1998, amending section 353A of the Crimes Act 1900. 1570 Crimes (Forensic Procedures) Act 2000. See further discussion below. 1571 Justice of the peace is an unpaid title, conferred on certain members of the community on the 338
An independent decision making role is meant to lie at the heart of the warrant issuing function. As one judge put it in 1986, the issuing justice or magistrate must ‘form his own independent view…act judicially’ and ‘assess the material placed before him and test it’.1572 A 1983 report by the NSW Attorney-General’s Department argued that:
The knowledge, expertise and independence of the person approached for the issue of a warrant is crucial. If these people merely act as rubber stamps… the whole system of limitations and safeguards created by the law becomes irrelevant.1573
Yet serious doubts about the performance of justices of the peace and magistrates had been articulated by highly credible commentators. Justice Woodward, for one, accepted that the ‘safeguard’ of judicial authorisation was sometimes over- rated, because warrants were often rubber-stamped.1574 Liberal politician John Dowd agreed, arguing that the ‘community has unwarranted faith in warrants; they are not difficult to obtain’.1575
A series of incidents in the 1980s heightened doubts about the independence and rigour of justices of the peace, in particular, in the warrant issuing process. In 1982, the NSW Ombudsman was sent a completed search warrant signed and issued by a justice of the peace, along with some blank search warrant forms, also signed by the justice. The Ombudsman’s investigations revealed that the justice of the peace had signed at least seven blank warrant forms, which suggested that police had been given a free hand to use them when and where they wished. The justice lived in the outer western suburbs of Sydney; yet the warrants had been obtained by city police, for a raid in the south, and also possibly for another in
basis that they are upstanding citizens. 1572 Patten v Justice of the Peace, Redfern Court; Wells and Keen (1986) 22 A Crim R 94 at 97. 1573 NSW Attorney-General’s Department (1983: 13). 1574 Woodward (1979: 1713). 1575 LA v 3/163 at 6731 (11 May 1981). 339
Newcastle. The police officer and the justice had a personal association, and the officer called on the justice regularly to obtain warrants. The Ombudsman also found that blank warrants had been signed in the past.1576
The following year, the NSW Attorney-General’s Department was notified of further problems by a newly appointed justice of the peace. Detectives had sought warrants from her in a ‘bombastic manner’, pressing for her to sign but refusing to let her see the supporting material. Yet, she reported, other justices of the peace with whom she worked ‘frequently’ signed warrants in these circumstances. In noting these concerns, an officer of the Attorney-General’s Department commented that there were ‘many other instances of suspected irregularities’ in the warrant issuing process. For example, it was frequently impossible to locate the material in support of the warrant application after the event.1577
In the late 1980s and early 1990s, there were a series of botched NSW police raids, one of which led to the death of David Gundy, an Aboriginal man who was not even a suspected offender. In that case, a justice of the peace issued warrants to search for the same goods at six different premises, despite the ostensible requirement for a reasonable ‘belief’ that the goods were on each of the premises. He had even photocopied the list of grounds prepared by police to attach to each warrant. These ‘grounds’ were in fact assertions, with no real basis for linking the objects of the search to the premises, individually or collectively.1578
In truth, police were really looking for an Aboriginal offender (John Porter) but thought they lacked adequate arrest powers. Having obtained a warrant to search Gundy’s premises, they burst in at dawn carrying weapons. Gundy was shot by a police officer, in circumstances the details of which were difficult to verify. The incident was the subject of a detailed report by Commissioner Hal Wootten, under the auspices of the Royal Commission into Aboriginal Deaths in Custody. A
1576 NSW Ombudsman (1982). 1577 NSW Attorney-General’s Department (1983: 13). 1578 See Wootten (1991: 43-61). 340
number of key points made in that report are noted below.
Many of the problems with the warrant issuing process stemmed from the fact that there were over 10 000 justices of the peace in NSW. All were empowered to issue search warrants, yet the ‘vast majority’ lacked appropriate knowledge or experience and had ‘no real understanding of the law relating to, or the consequences of issuing a search warrant’.1579
Without any institution or framework to support them, it seems clear that many justices succumbed with little resistance to the forceful representations of police. Even a relatively senior justice of the peace, such as a clerk of court, could falter in this way. The clerk of court who issued the search warrants in the Gundy case, ‘was confronted by two senior police officers of strong personality and of great conviction’ a factor that contributed to the clerk’s failure to adequately test police claims.1580 Justice Wootten concluded that a court clerk (let alone an ordinary justice) was unlikely to possess the ‘independence, status and standing’ to resist the pressure that ‘high powered’ police officers could bring to bear.1581
One response to this problem was to limit the categories of those authorised to issue warrants. Under the ‘telephone warrant’ provisions included in the Poisons Amendment Act 1981, only a magistrate could issue such a warrant.1582 Only a magistrate, or a justice with legal qualifications from the Local Courts Administration, nominated by the Minister, could issue warrants over the telephone under the Crimes (Domestic Violence) Act 1982.1583 The Search Warrants Act 1985 subsequently removed altogether the authority of most justices to issue search warrants, leaving this power only with magistrates and Local Courts Administration justices (sections 3 and 6). Attorney-General
1579 NSW Attorney-General’s Department (1983: 2, 13). For criticisms by NSW solicitors, see LSJ (1986: 24(8) at 13; 24(10) at 9). 1580 Wootten (1991: 172). 1581 Wootten (1991: 12, 61). 1582 Schedule 1(10) to the Act, inserting section 43A in the Poisons Act 1966. 1583 Schedule 2(3) to the Crimes (Domestic Violence) Act 1982, inserting section 357G in the Crimes Act 1900. 341
Sheahan explained that it was ‘imperative that people charged with the responsibility of issuing warrants have the necessary legal experience’.1584 By 1990, the Attorney-General’s Department was moving to limit the number of authorised justices who were permitted to issue warrants after hours, from around 20 down to 12 or so, for reasons of consistency and ‘quality control’. This was a far cry from the 10 000 available just a few years previously.1585
In his report on the death of David Gundy, Commissioner Wootten argued that only a superior court judge should be able to issue search warrants. 1586 This idea had other supporters,1587 but the Government rejected it on the basis that NSW had too few judges or even magistrates to cope with the task.1588 The Government instead responded with a more modest tightening under which only magistrates and Local Courts Administration justices who were clerks of court or had Ministerial authorisation would be authorised to issue search warrants.1589 The Labor Opposition suggested excluding all justices from warrant issuing powers,1590 but did not pursue this when it returned to power in 1995.
The perceived importance of ensuring sufficiently senior judicial officers were responsible for authorisation processes extended beyond the search warrant context. The Listening Devices Act 1984 conferred the power to issue listening device warrants only on courts, with only the Supreme Court to exercise this function unless regulations extended this to other courts (section 16). In 1990, one of the principal grounds on which Labor and Independent parliamentarians scuttled John Dowd’s forensic procedures Bill was that it would have allowed certain justices to authorise forensic procedures such as the taking of a blood sample. They argued that only a magistrate should be able to authorise these
1584 LA v 3/183 at 3860 (27 February 1985). 1585 NSW LRC (1990: 104). 1586 Wootten (1991: 12, 61, 279). 1587 See, for example, Byrne (1989). 1588 LC v 3/227 at 6588 (Hon E Pickering, 12 December 1991). 1589 Schedule 1(1) of the Search Warrants (Amendment) Act 1991, amending the definition of ‘authorised justice’ in section 3 of the Search Warrants Act 1985. 1590 LA v 3/225 at 6511, 6513, 6515 (Mr Whelan, 11 December 1991), LC v 3/227 at 6416 (Hon R Dyer, 11 December 1991). 342
invasive procedures, as in Victoria.1591
A second group of criticisms to be directed at the warrant issuing process concerned ‘judge shopping’. This could take two forms. A police officer could apply to one judicial officer after another for a warrant, until one was found who would issue the warrant. Alternatively, a police officer might go straight to someone known to issue warrants uncritically. Some civil libertarians feared that even Supreme Court judges could be ‘shopped’ in this way.1592
The NSW Law Reform Commission was conscious of these dangers in framing its proposals for extension of pre-charge detention, in its ‘Detention after Arrest’ report. The Commission recommended that, after hours, police be required to contact a central number from which they would be put through to a rostered justice, rather than being able to contact a preferred justice directly.1593 The Commission also proposed that in an application for a detention order police would have to state whether any earlier applications had been made.1594 Where a prior application had been refused, a new application was not to be entertained unless supported by new evidence.1595 The latter two requirements were included in the Crimes Amendment (Detention After Arrest) Act 1997.1596 Similar rules had been inserted in the Search Warrants Act 1985 in 1991, following the Gundy shooting and the Wootten report.1597
Another technique for lifting the quality of the authorisation process was to detail in legislation considerations to be taken into account in the authorisation decision. The traditional approach (for example, for arrest and search warrants under the Crimes Act) had been merely to require the issuing officer to be satisfied that there
1591 See LA v 3/215 at 3975 (Mr Whelan, 21 May 1990) and LC v 3/216 at 5407 (Hon R Dyer, 12 June 1990) and at 5426 (Hon Elisabeth Kirkby, 13 June 1990). 1592 Robertson (1986: 16). 1593 NSW LRC (1990: 104). 1594 NSW LRC (1990: 44). 1595 NSW LRC (1990: 108). 1596 Schedule 1, inserting paragraph 356I(f) and section 356J in the Crimes Act 1900. 1597 Schedule 1(7) to the Search Warrants (Amendment) Act 1991, inserting paragraph 12A(1)(e) in the Search Warrants Act 1985, and schedule 1(8) to the Search Warrants (Amendment) Act 1991, 343
was reasonable cause to suspect an offence (arrest) or the presence of specified material relevant to an offence (search).1598
In the 1980s and 1990s, Parliament sought to guide the decision making process more closely. For example, in deciding whether to issue a listening device warrant under the Listening Devices Act 1984, a court was required to consider the nature of the alleged offence, the invasion of privacy that would be involved, the value of the evidence sought, alternate means for obtaining the evidence, and any previous listening device warrants sought or granted in respect of the offence.1599 This kind of ‘list’ of decision making criteria also appeared in the never-enacted forensic procedures provisions in the Crimes Legislation (Further Amendment) Bill 1990;1600 in the Evidence Act 1995 (sections 85,114 and 138) and the Crimes Amendment (Detention After Arrest) Act 1997.1601
Following the Gundy shooting and other incidents, the Search Warrants (Amendment) Act 1991 amended the Search Warrants Act 1985 to much more closely prescribe the criteria to be considered before issuing a warrant. The Attorney-General explained in introducing the amendments that the ‘Act in its present form does not give sufficient guidance to applicants and justices as to the requirements which must be met before a warrant may be issued’.1602 Under the amendments, the authorised justice or magistrate was required to consider the source and reliability of the information on which the application was based; and whether there was a sufficient connection between the subject of the warrant and the alleged offence.1603 A failure to consider these matters had been a notable flaw in the Gundy warrants.1604 In addition, a search at night could not be authorised unless further grounds were established, for example, that the occupier or goods
inserting section 12C in the Search Warrants Act 1985. 1598 Crimes Act 1900, sections 354 and 355 (as in force 1900 to 1985). 1599 Listening Devices Act 1984, subsection 15(2). 1600 Schedule 1(3) which would have inserted proposed section 358I in the Crimes Act 1900. 1601 Schedule 1(4) inserting subsection 356G(5) in the Crimes Act 1900. 1602 LA v 3/225 at 4424 (Second reading speech by the Attorney-General, Mr Collins, 13 November 1991). 1603 Schedule 1(7), inserting subsection 12A(2) in the Search Warrants Act 1985. 1604 Wootten (1991: 7, 50-52). 344
would only be present at night, or that a daylight raid would jeopardise safety.1605 It is notable that both the Labor Opposition1606 and the Democrats1607 called for even more detailed authorisation criteria to be included.
Another mechanism for improving the quality of the authorisation process was to introduce procedural prerequisites to authorisation. For example, under the Search Warrants Act 1985 (as originally enacted), a search warrant could only be issued if the application set out the grounds for seeking the warrant; the applicant had provided any additional information sought by the justice; and all such information had been verified under oath or affirmation or by affidavit (section 11). The 1991 amendments to the Act added further prerequisites. A warrant could only be issued if the issuer had been given the grounds for the application; the address or description of the premises in question; a description of the goods in question; details of any previous application; and any other details required by regulation.1608 Similarly, the Crimes Amendment (Detention After Arrest) Act 1997 listed 6 matters required to be included in an application for a detention warrant (for example, the nature of the evidence justifying the arrest; and whether the person was co-operating) with provision to add to this list by regulation.1609
Yet another control placed on warrant issuers was to require them (in effect) to explain themselves in writing. An early example was the Crimes (Domestic Violence) Act 1982, under which a magistrate who granted a warrant was required to make a written record of the applicant’s name, the terms of the warrant, time of issue, the date of the complaint, the name of any known informant and the grounds for issuing the warrant.1610 The Listening Devices Act 1984 also contained a long list of matters to be specified in a warrant, including any conditions that had been imposed on the warrant (section 16). Similarly, the NSW
1605 Schedule 1(10), amending section 19 of the Search Warrants Act 1985. 1606 LA v 3/225 at 6513 (Mr Whelan, 11 December 1991). 1607 LA v 3/227 at 6419 (Hon E Kirkby, 11 December 1991). 1608 Schedule 1(7), inserting subsection 12A(1) in the Search Warrants Act 1985. 1609 Schedule 1(3) inserting section 356I in the Crimes Act 1900. 1610 Schedule 2(3) inserting subsection 357G(7) in the Crimes Act 1900. The quoted words are from paragraph 357G(7)(c). 345
Law Reform Commission recommended that an authorising justice or magistrate should be required to give reasons for issuing a detention warrant,1611 and the 1997 Act implemented this recommendation.1612
The diverse array of efforts made to bolster the judicial safeguard underlined the lack of viable alternatives to authorisation by justices, magistrates and judges. Justice Woodward, for example, acknowledged serious flaws in the warrant issuing process but concluded that ‘the warrant’s inherent value outweighs its practical deficiencies’.1613 He added that:
even if some magistrates and justices, on some occasions, may not exercise the quality of review hoped for, the response to this problem should not be to deny them their opportunity to review police activity. Instead, clear standards of review are needed to ensure that magistrates fulfil the role expected of them… to require the police officer to have a warrant is to remain at least that symbolic step away from the police state…1614
A decade later, the NSW Law Reform Commission made very similar comments about pre-charge detention.1615
Indeed, the 1980s and 1990s saw a major expansion of the role of judges and magistrates in authorising and regulating investigatory conduct by police. For example, under NSW law, judicial officers gained the authorisation function for listening devices in 1984 (previously held by senior police),1616 for ‘detention warrants’ in 1997,1617 and for internal searches in 2001.1618 There were proposals
1611 NSW LRC (1990: 45). 1612 Schedule 1(3) to the Crimes Amendment (Detention After Arrest) Act 1997, inserting subsection 356L(1) in the Crimes Act 1900. 1613 Woodward (1979: 1714). 1614 Woodward (1979: 1715-16). 1615 NSW LRC (1990: 110). 1616 Listening Devices Act 1984, section 16. 1617 Section 356G of the Crimes Act 1900, inserted by schedule 1 to the Crimes Amendment (Detention After Arrest) Act 1997. 346
to push this role even further, for example, by requiring that suspects be questioned in the presence of a magistrate.1619
The increasing involvement of superior court judges in the authorisation of police conduct led to some concerns that judicial officers were becoming part of the investigatory apparatus. In the mid-1990s, Federal Court judges baulked at their large and increasing role in issuing telecommunications interception warrants. Some judges openly refused to perform this function.1620 Others threatened to cease doing so unless remedial measures were introduced.1621 Justice McHugh of the High Court went so far as to hold that the role of Federal Court judges was an impermissible contravention of the separation of judicial and executive powers requirement in the Commonwealth Constitution.1622
Although a majority of Justice McHugh’s High Court colleagues disagreed, they warned that where a conflict of interest was likely (for example, in a small State or Territory), judges should decline to exercise the function. Furthermore, although issuing telecommunications interception did not constitute ‘participation’ in criminal investigation, any function that would involve a judge in criminal investigation ‘would be a function which could not be conferred on a judge’.1623 Soon afterwards, the Commonwealth legislated to give certain Administrative Appeals Tribunal members telecommunications interception warrant issuing powers.1624 One NSW judge publicly suggested that a similar approach should be taken with respect to judicial authorisation provisions in NSW law.1625
When legislation to authorise undercover operations was introduced by the
1618 Police Powers (Internally Concealed Drugs) Act 2001, section 14. 1619 Stewart (1983: 614), Clark (1988: 145). 1620 CM (1995: 28 September at 14). 1621 SMH (1997: 25 August at 5). 1622 Grollo v Palmer (1995) 184 CLR 348 at 378. 1623 Grollo v Palmer (1995) 184 CLR 348 at 366-67 per Brennan CJ, Deane, Dawson and Toohey JJ. 1624 Telecommunications (Interception) and Listening Device Amendment Act 1997 (Cth). See James (1998). 1625 James (1998: 18). 347
Commonwealth and South Australia, and then NSW,1626 the authorisation function was given to senior law enforcement officers. A central argument was that the considerations relevant to an authorisation were largely operational, and that it would be undesirable to draw judicial officers into this process.1627
There has been an interesting trajectory in the position of justices of the peace, magistrates and judges in relation to authorisation of law enforcement conduct. First, there was a phase of sustained criticism, in which serious challenges were made to the presumption that judicial or quasi-judicial authorisation was a rigorous process involving independent judgment. Next, there were elaborate efforts to improve the performance of judicial authorising officers through legislation, cutting out the lower and less qualified layers, and spelling out in detail the decision making process that should be followed. Finally, in recent years, there has been renewed questioning of the limits of appropriate involvement by judicial officers in the law enforcement decision making process.
The close attention these issues have received demonstrates that criminal investigation law deals with more than the relationship between police and suspect. A significant objective of regulatory legislation has been to more closely regulate the conduct of authorising officers, and thereby lift their performance.
Oversight Bodies
As was noted in earlier chapters, policing and criminal investigation in the 1950s and 1960s was to a significant extent a closed domain. In addition to police and suspects, only the judiciary and the criminal law fraternity were parties to what took place. In the 1980s and 1990s, these groups have been joined by new players, thereby opening up the process to greater scrutiny. The Office of the Ombudsman is a leading example. The Ombudsman Act 1974 created a NSW
1626 Law Enforcement (Controlled Operations) Act 1997, section 5. 1627 See, for example, Senate Legal and Constitutional Legislation Committee (1995: 22-23). 348
Ombudsman with jurisdiction and powers to independently investigate public complaints against public authorities.
Police were initially excluded from the Ombudsman’s jurisdiction.1628 However, in 1978 the Ombudsman was given jurisdiction to oversee the police internal investigation process,1629 and later, to initiate its own investigation where there was some defect in the internal investigation process.1630 Subsequently, the Ombudsman’s oversight/ intervention powers in respect of internal investigations were significantly strengthened.1631
The Ombudsman has subjected policing in NSW to ‘unprecedented scrutiny’,1632 and provided one of the primary sources of evidence for those seeking to oppose conferral of significant powers and discretions on police. The Ombudsman’s inquiries into the ‘blank search warrants’ incident, for example, conducted and ultimately terminated in the face of resistance from the NSW Police Force,1633 helped to draw attention to the incident.1634 In turn, this was part of the sequence of events that led to the enactment of the Search Warrants Act 1985. An opponent of the Law Enforcement (Controlled Operations) Bill 1997 pointed to the 23 100 complaints against police registered by the Ombudsman in the previous
1628 Ombudsman Act 1974 (as enacted), section 12 and schedule. 1629 Part II of the Police Regulation (Allegations of Misconduct) Act 1978. 1630 Independent investigation powers were first conferred in 1983, in cases where doubt remained as to whether a complaint should be upheld: schedule 3(2) to the Police Regulation (Allegations of Misconduct) Amendment Act 1983, inserting section 25A in the Ombudsman Act 1974 (and consequentially amending sections 26-28 and 56-58). 1631 In 1987 the Ombudsman was authorised to investigate a complaint falling within the jurisdiction of the internal police investigations system, where an internal investigation was not completed within 180 days of the Commissioner or the Ombudsman notifying the other about the complaint: schedule 1(1) to the Police Regulation (Allegations of Misconduct) Amendment Act 1987, inserting section 24A in the Police Regulation (Allegations of Misconduct) Act 1978. In 1993, the Ombudsman was authorised to investigate a complaint against police without awaiting an internal investigation, where this appeared necessary in the public interest: schedule 1(2) to the Police Service (Complaints, Discipline and Management) Act 1993, inserting section 153 in the Police Service Act 1990. The 1993 amendments also gave the Ombudsman closer oversight of internal investigations, authorising the Ombudsman to observe interviews conducted in the course of an internal investigation, and to seek information from investigating officers conducting an internal investigation: schedule 1(2) to the Police Service (Complaints, Discipline and Management) Act 1993, inserting section 144 in the Police Service Act 1990. 1632 Finnane (1999: 33). 1633 NSW Ombudsman (1982: 361, 363-65). 1634 See, for example: NSW Attorney-General’s Department (1983: 15), LA v 3/172 at 2793
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year as grounds for not enacting the legislation.1635 A similar point was made by critics of the Police Powers (Vehicles) Bill.1636 In 1999, an Ombudsman’s report detailing breaches of the Law Enforcement (Controlled Operations) Act 1997 was cited by an opponent of proposed amendments in arguing that police discretions under the legislation should not be enhanced.1637
On the other hand, the Ombudsman has sometimes been the proponent of additional powers for police. For example in 1990 the NSW Ombudsman proposed that powers to stop and search persons and vehicles should be clarified and enhanced, in the face of doubts about the legality of some current police practices.1638
The Ombudsman has also been given a range of additional roles under NSW criminal investigation legislation. The Telecommunications (Interception) (New South Wales) Act 1987 was the first example of this. That Act required a twice yearly inspection of records relating to telecommunications interceptions to be undertaken by the Ombudsman, who was to report to the NSW Minister on the results (sections 10-12). To discharge these functions, the Ombudsman was empowered to enter the premises of a relevant agency; to request, view and copy telecommunications interception records; and to require an officer of a relevant agency to attend and answer questions (sections 13-15).
Comparable provisions were included in Part 4 of the Law Enforcement (Controlled Operations) Act 1997, with the Ombudsman given the function of inspecting law enforcement records and reporting to Parliament every 12 months on controlled operations conducted under the legislation in the previous year.
In the late 1990s, a key tool for addressing civil libertarian and privacy concerns
(Mr Peterson, 23 November 1982). 1635 LC v 3/262 at 3049 (Hon R Jones, 3 December 1997). 1636 LC v 3/269 at 10835 (Hon I Cohen, 27 November 1998) and at 10854 (Hon R Jones, 27 November 1998). 1637 LC v 3/275 at 3685 (Hon R Jones, 25 November 1999).
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about the swathe of powers being conferred on police was to provide for the Ombudsman to review the legislation. 1639 The Crimes Legislation Amendment (Police and Public Safety) Act 1998, for example, contained powers to search for and confiscate knives and to demand a person’s name and address. The Act provided that the Ombudsman was to monitor the exercise of these powers for 12 months, could require the Police Commissioner to provide relevant information, and was to report to the Police Minister and Police Commissioner at the end of the 12 months (section 6). The report was to be tabled in Parliament, attached to a mandatory review of the legislation by the Police Minister (section 7).
Comparable provisions were included in the Police Powers (Vehicles) Act 1998 (sections 16 and 17), the Crimes (Forensic Procedures) Act 2000 (sections 121 and 122), the Police Powers (Drug Premises) Act 2001 (section 21) and the Police Powers (Internally Concealed Drugs) Act 2001. Speaking for the Opposition on the then Crimes (Forensic Procedures) Bill, Andrew Tink declared that the ‘Ombudsman must have assertive and aggressive oversight of the legislation’.1640 The entrenchment of the Ombudsman’s seat at the policy development table carried over to cases where this was not spelled out in legislation, notably in the formulation of the Law Enforcement (Controlled Operations) Act 19971641 and the 1999 amendments to that Act.1642 The Ombudsman’s support for proposed reforms was cited to give those reforms greater legitimacy.1643
Privacy concerns also continued to be given weight, even where talk of rights and liberties generally did not fit comfortably with the law and order climate.
1638 See SMH (1990: 20 August at 3). 1639 See, for example, the comments of Dr MacDonald MLA on the Crimes Legislation (Police and Public Safety) Bill 1998: v 3/263 at 4096 (29 April 1998), Ms Moore MLA on the Crimes (Forensic Procedures) Bill: at 6915 (8 June 2000). 1640 LA (7 June 2000). Not yet printed in volume form. 1641 See LC v 3/262 at 3050 (Hon J Shaw, Attorney-General, 3 December 1997). 1642 Inspector of the Police Integrity Commission (1999: 8). 1643 See, for example, the comments in the debate on the Law Enforcement (Controlled Operations) Bill 1997 by Mr Kinross: v 3/262 at 2657 (26 November 1997), the debate on the Crimes Legislation (Police and Public Safety) Bill 1998: v /263 at 4102 (Ms Harrison, 29 April 1998), and the debate on the Law Enforcement (Controlled Operations) Amendment Bill 1999 by: Mr Gaudry LA v 3/274 at 2780 (11 November 1999), Mr Tink: LA v 3/274 at 3133 (11 November 1999), and the Hon J Hatzistergos: LC v 3/274 at 3704 (25 November 1999). 351
Mastercard International published a survey in 1996, indicating that 41% of Australians were ‘very concerned’ and a further 46% ‘concerned’ about privacy. The largest single concern, held by 80% of those surveyed, related to government agency computer networks holding personal information.1644
The relevance of ‘privacy’ to a whole array of criminal investigation laws was highlighted by the breadth of the recommendations in the ALRC’s 1983 Privacy report.1645 For example, it recommended that body cavity searches be permissible only in the investigation of an offence carrying at least 7 years imprisonment, and on the order of a judicial officer.1646 It recommended the same limitation apply to the use of listening devices1647 and the use of optical surveillance devices other than in public places.1648 It also recommended that all powers of intrusion should be framed consistently with a set of principles drawn from international treaties. For example, entry onto premises should be at a reasonable time and confined to reasonable force; searches should be conducted with respect to the dignity of the person searched.1649
Widespread concern about privacy led to the establishment of formal institutions. In NSW, there was first a NSW Privacy Committee with no formal powers, and then from 1998 a Privacy Commissioner backed by a detailed legislative framework laying down privacy protection principles under the Privacy and Personal Information Protection Act 1998. The NSW Privacy Commissioner was given an explicit mandate to comment publicly on privacy issues (section 36). Federally, there is another Privacy Commissioner, itself reflecting an ALRC recommendation.1650 These bodies have been well placed to become entrenched participants in the debate about criminal investigation law, with the advantage (shared by the Ombudsman and the policing agencies) of operating inside
1644 Cited in Simpson (1997: 24-25). 1645 ALRC (1983). 1646 ALRC (1983: 39). 1647 ALRC (1983: 62-63). 1648 ALRC (1983: 76-77). 1649 ALRC (1983: 33-38). 1650 ALRC (1983: 14-15). 352
Government. This improves the prospects of being consulted while policy is still being formulated, rather than after the Government is already effectively committed to an outcome. My own experience in the Commonwealth sphere is that privacy interests are comparatively well represented in the policy formulation process, in comparison to other rights and liberties. The fact that privacy bodies are on the ‘inside’ is critical in this regard.
An early foray into public debate by the NSW Privacy Committee concerned the use of lie detector devices. In 1978, it prepared a paper highlighting privacy concerns about the unregulated status of lie detectors in NSW.1651 The following year, Attorney-General Walker foreshadowed legislation to ban their use.1652 After some delay, the Lie Detectors Act 1983 was enacted. This made it an offence, among other things, to use a lie detector for establishing whether or not a person was guilty of an offence (section 5). The results of such use were also inadmissible in evidence (section 6).
In the telecommunications interception area, privacy bodies have been frequent contributors to inquiries and reviews. In 1993, the Federal Privacy Commissioner had proposed that emergency telephone interceptions initiated without warrant should be subject to an ‘after the event’ warrant application. The Government had not originally included this in its Bill, but was forced to do so in the Senate.1653 In 1995, the Federal Privacy Commissioner and NSW Privacy Committee persuaded the Barrett Review of telecommunications interception that surveillance agencies should be required to notify any person not ultimately prosecuted that their communications had been intercepted.1654 The increasing prominence of the Privacy Commissioner in this area was reflected in the joint proposal of the Ombudsman and the Privacy Commissioner, accepted by the Barrett review, that the inspection and reporting function for Commonwealth intercepts should be
1651 Privacy Committee (1978). 1652 NSW Police News (1979: July at 214-15). 1653 See Greenleaf (1994: 174), and section 7 of the Telecommunications (Interception) Act 1979 (Cth) as amended by the Telecommunications (Interception) Amendment Act 1993 (Cth). 1654 Greenleaf (1995: 185). 353
transferred from the Ombudsman to the Privacy Commissioner.1655
Similarly, the Model Criminal Code Officers’ Committee identified the Federal Privacy Commissioner as one of the two key stakeholders it had consulted in preparing its 1999 Forensic Procedures discussion paper, along with the Police Commissioners Working Group on the National DNA Database.1656 The Committee’s final report endorsed a proposal by the Federal and NSW Privacy Commissioners that police be required to disclose certain information to volunteer forensic sample providers.1657
Recording and Reporting
Provisions allowing for the inspection of records by the Ombudsman, and for the Ombudsman to review legislation, are part of a broader trend to specify recording and reporting obligations in criminal investigation legislation. The Listening Devices Act 1969 led the way on this front, requiring the Police Commissioner to report to the Police Minister on the results of the use of a listening device and on any other relevant matter at the request of the Minister. The Act also required the Commissioner to keep certain records, including all authorisations and cancellations (section 10).
Recording and reporting have been another facet of the close Government interest in the exercise of criminal investigation powers, in place of the arms length arrangements of the 1950s and 1960s. The modern attitude was exemplified by the comment of one Government member in respect of the search warrant provisions contained in the 1982 domestic violence reforms: ‘The Government intends to monitor closely these provisions’.1658
1655 Greenleaf (1995: 185). 1656 MCCOC (1999: iii). 1657 MCCOC (2000: 3). 1658 LC 3/172 at 2894 (Hon D Landa, 24 November 1982). 354
The starting point for any recording and reporting regime is to require appropriate records to be made and kept. Express requirements of this kind have been included, for example, in legislation relating to assumed identities,1659 detention and questioning,1660 vehicle search,1661 internal search,1662 and telecommunications interception.1663 Retention requirements were implicit in the controlled operations audit provisions1664 and in the Listening Devices Act 1984.1665 Records typically required to be retained have concerned the time of applications made under the legislation, the decisions made in response, and an outline of any key facts relating to the exercise of those powers, for example, ‘general details of relevant financial transactions entered into using an assumed identity to which the approval applies’.1666 Detailed requirements for the keeping of custody records are based on NSW Law Reform Commission recommendations.1667 The audio and visual recording of interviews with suspects is perhaps the most rigorous of all recording requirements.
Beyond the making and keeping of records, reporting requirements can add a further tier of accountability. Generally NSW legislation has only required reporting on formal matters (names and dates) with at most brief summaries of operational outcomes to be reported.1668 Commonly, there is a requirement for an annual report to Parliament. For assumed identities, the agency’s own annual report must contain statistics on identity use, a description of the general nature of the duties involved, and any criminality revealed by audit.1669 For controlled operations, it is the Ombudsman that makes a discrete report to Parliament,
1659 Law Enforcement and National Security (Assumed Identities) Act 1998, section 10. 1660 Crimes Amendment (Detention After Arrest) Act 1997 schedule 1, inserting section 356V in the Crimes Act 1900; Crimes (Detention after Arrest) Regulation 1998, regulations 15 and 17. 1661 Police Powers (Vehicles) Act 1998, section 12. 1662 Police Powers (Internally Concealed Drugs) Act 2001, section 27. 1663 Telecommunications (Interception) (New South Wales) Act 1987, sections 4 and 5. 1664 Law Enforcement (Controlled Operations) Act 1997, Part 4. 1665 Listening Devices Act 1984, sections 20 and 22. 1666 Law Enforcement and National Security (Assumed Identities) Act 1998, paragraph 10(2)(e). 1667 NSW LRC (1990: 34-36). 1668 Law Enforcement and National Security (Assumed Identities) Act 1998, section 12; Law Enforcement (Controlled Operations) Act 1997, sections 15 and 23; Law Enforcement (Controlled Operations) Regulation 1998, schedule 1 item 7; Listening Devices Act 1984, section 23; Telecommunications (Interception) (New South Wales) Act 1987, sections 11 and 12. 1669 Law Enforcement and National Security (Assumed Identities) Act 1998, section 12. 355
containing statistics and an outline of the law enforcement activities involved.1670 For listening devices, the Attorney-General is required to make an annual statistical report to Parliament.1671 For telecommunications interception, the Ombudsman reports annually to the State Minister,1672 with a copy to the Commonwealth Minister.1673 The Commonwealth Minister reports to the Commonwealth Parliament.1674
There are also some requirements to report elsewhere than to the elected government. For example, a law enforcement agency must notify the Director of Public Prosecutions where material in a brief of evidence was obtained by means of a controlled operations.1675 Where a court considers that a listening device was used unjustifiably, it can require police to notify the person who was subject to the warrant.1676 Under the Search Warrants Act 1985, a report on the execution or non-execution of a warrant must be made to the issuer of the warrant.1677
Recording and reporting have been presented as offering a number of benefits. First, there is the attainment of greater openness, permitting ‘Parliament and citizens of the State to see how the legislation is operating in practice’.1678 Second, recording and reporting have been identified as key mechanisms to ensure police compliance with due process requirements. The NSW Attorney-General’s Department felt that if police reported to issuing justices after the execution of search warrants, this would ‘alert individual justices to problems within their areas… a high proportion of unsuccessful warrants might indicate a need for greater scrutiny of applications’.1679 The NSW Law Reform Commission felt that custody records were vital to ensuring police compliance with detention and
1670 Law Enforcement (Controlled Operations) Act 1997, section 26. 1671 Listening Devices Act 1984, section 23. 1672 Telecommunications (Interception) (New South Wales) Act 1987, section 11. 1673 Telecommunications (Interception) (New South Wales) Act 1987, section 20. 1674 Telecommunications (Interception) Act 1979, section 99. 1675 Law Enforcement (Controlled Operations) Act 1997, section 26. 1676 Listening Devices Act 1984, section 20. 1677 Search Warrants Act 1985, section 21. 1678 LC v 3/227 at 6417 (Hon R Dyer, 11 December 1991). 1679 NSW Attorney-General’s Department (1983: 32). 356
questioning safeguards.1680
Third, the keeping of relevant records has been put forward as a useful aid to resolving curial or administrative challenges to law enforcement conduct.1681 This was a key argument put forward for audio or video recording of confessions.1682 Finally, recording and reporting have been promoted as an aid to future policy development. In 1983, for example, the NSW Attorney-General’s Department complained that it was ‘impossible to determine how many search warrants are actually issued in the State’.1683 It argued that reports on the execution of warrants would allow analysis ‘of the usefulness of various search warrant provisions’.1684 Similarly, in the final report of the Royal Commission into Aboriginal Deaths in Custody, Commissioner Johnstone QC lamented the lack of information about people in police custody in Australia, and recommended that this ‘quite unsatisfactory’ state of affairs needed to be overcome if ‘appropriate policies in this area are to be developed, implemented and monitored’.1685
Statutory review provisions have been particularly relevant to this policy aim. Such provisions became standard in legislation enacted in the late 1990s. Typically, the Police Minister is required to undertake a review after 12 months, and then report to Parliament as to ‘whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives’.1686 It is notable that the long tradition of non-compliance with legal requirements has been maintained even in this area. The submission to
1680 NSW LRC (1990: 74). 1681 NSW LRC (1990: 74), NSW Attorney-General’s Department (1983: 25), LA v 3/184 at 4365 (Mr McIlwaine, 6 March 1985). 1682 See chapters 3 and 6. 1683 NSW Attorney-General’s Department (1983: 16). 1684 NSW Attorney-General’s Department (1983: 31). 1685 Johnstone (1991: 191-95). 1686 See the Crimes Amendment (Detention After Arrest) Act 1997 (schedule 1, inserting section 356Y in the Crimes Act 1900), Law Enforcement (Controlled Operations) Act 1997 (section 32), the Law Enforcement and National Security (Assumed Identities) Act 1998 (section 21), the Police Powers (Vehicles) Act 1998 (section 17), the Crimes Legislation Amendment (Police and Public Safety) Act 1998 (section 7), Law Enforcement (Controlled Operations) Amendment Act 1999 (schedule 1 item 24, amending section 32 of the Law Enforcement (Controlled Operations) Act 1997), Police Powers (Drug Premises) Act 2001 (section 22), Police Powers (Internally Concealed Drugs) Act 2001 (section 44). 357
Parliament of the review of the Crimes Amendment (Detention After Arrest) Act 1997 was delayed for over 2 years past the requirement to complete and submit the review ‘as soon as practicable’ after 12 months from the commencement of the Act. At the time of writing it was understood that a review report had been prepared but not submitted. The option of pursuing a rigorous empirical review of the workings of the legislation was rejected in favour of a paper based exercise in advancing possible amendments that had been suggested.1687
The approach taken to the review comes as no surprise, based on my experience at the Federal level. There are a very limited number of officers working in legislation and policy areas. A large proportion of their time is taken up with briefings on ‘issues of the day’, and with one or two key priorities for new legislation or other policy outcomes. It would be a rare circumstances where a Minister or their staff agreed that it would be desirable to divert substantial resources away from working on topical, high profile ‘wins’ for the Minister, in preference for a detailed review process that may only alienate the main interest group (police). I have often found that Parliamentary Committees are under a significant misapprehension on this score, believing that the Attorney-General’s Department is heavily involved in an ongoing basis in oversight and review of existing operational practices and procedures.
The rigour of reporting practices has, in fact, been repeatedly criticised over the years. In 1984, John Dowd had argued that in the case of the Listening Devices Bill 1984 annual report provision, further ‘details should be included to make sure a meaningful report is made to Parliament. The type of report envisaged by the bill could probably be done on one page’.1688 Fifteen years later, Terry O’Gorman described the telecommunications interception annual reports for the Federal Police and National Crime Authority as ‘close to meaningless because no details are provided’.1689 The lack of any sanction for non-reporting can also be open to
1687 Personal communication, Professor David Dixon. 1688 LA v 3/179 at 1308 (John Dowd, 22 May 1984). 1689 Hobart Mercury (1999: 13 December at 12). 358
criticism. For example, while police were obliged to record search authorisations under the Police Powers (Vehicles) Act 1998, a failure to do so did not invalidate the search. The Hon Helen Sham-Ho suggested this made a ‘mockery’ of the safeguard and that ‘police would be able to act with impunity’.1690
Concerns have also been expressed about the potential for manipulation of recording mechanisms. In 1999, prominent youth legal advocate Michael Antrum argued that he could:
not believe for one second recent statements by the Premier and Commissioner Ryan that 100% of recent searches of people under the new provisions resulted in the detection of a knife… police are only recording searches that result in the detection of an offensive implement, and not recording fruitless searches.1691
The Police Association itself identified deficiencies in the way statistics on the exercise of move-on and other powers were recorded under the ‘Police and Public Safety’ Act:
Members have informed the Association that Commanders have told them to use the legislation because if they do not, ‘the Ombudsman will take the power away.’ The pressure exerted upon Commanders and in turn operational police from senior Police Service Executive members is severe and the Association suggests that the drive for higher statistics in these areas is a form of process corruption…
Members have overwhelmingly indicated that it is a ‘numbers game’. The concept is supported by the fact that Local Area Commands require police to record events… differently. When a police officer moves a group of four people on, some commands require the
1690 LC v 3/269 at 10853 (27 November 1998). 1691 Antrum (1998: 198). 359
incident to be recorded as one event while others require it to be recorded as four events.1692
These Police Association comments provide a further illustration of the greater commitment of police managers as against the police union to securing and maintaining additional powers.
While the effectiveness of recording, reporting and review provisions has sometimes been questionable, the overall trend has still been towards collecting and publishing an increasing volume of information about the criminal investigation process. More is known about policing practices than would be the case without statutory reporting procedures, a point that is illustrated later in the chapter. For all their flaws, review and reporting provisions do help to shed more light on the nature of existing practices and their merits, and help to give these questions greater priority within government.
Support for the Regulatory Ideal
Much of this chapter has been concerned with ideas about regulating criminal investigation. Three ideas in particular, have been the focus of the analysis. The first is that authorisation processes involving justices and magistrates should be more strictly controlled. The second is that criminal investigation processes should be subject to other forms of control and oversight, to protect and promote privacy and other liberties. The third is that criminal investigation practices should be subject to recording, reporting and review. Each of these ideas can be understood as contributing to an overarching paradigm, which can be termed the ‘authorise and regulate’ paradigm. This paradigm was central to the ALRC Criminal Investigation report. It has subsequently been reflected in the 1990 Police Powers of Detention and Investigation After Arrest report of the NSW
1692 Police Association (1999b: 55). 360
Law Reform Commission; and Justice Wood’s 1997 Final Report of the Royal Commission into the NSW Police Service.
In the case of the NSW Law Reform Commission, its commitment to an ‘authorise and regulate’ approach was to be a central feature of its report, and exerted considerable influence on the response to that report. The early panic about the Williams decision subsided quickly. The Police Force itself requested the Law Reform Commission to ignore the Government’s original May 1987 timetable for it to report, to allow the Police Force to make a more considered submission.1693 The attitude of the NSW courts was central to the return of complacency. In the first major detention case post-Williams, the NSW Court of Criminal Appeal found no objection to the fact that a defendant had confessed in police custody at 3.45am after being arrested at 6.15pm the previous day.1694 The court later confirmed that if an arrest were made outside business hours, police could continue questioning until a magistrate became available at 10am on the next working day.1695 In this context, NSW police adopted what the Wood Royal Commission was later to describe as an indifferent attitude to the Williams decision.1696
The enthusiasm of the NSW Police Force for reform was also dampened by the approach taken by the Law Reform Commission. For a start, the NSW Law Reform Commission rejected the ‘reasonable time’ framework for detention preferred by police. The Commission argued that ‘reasonable time’ gave police inadequate guidance and left a suspect with ‘no idea when he or she is likely to be released or whether the detention is even lawful’.1697 It proposed instead that police be given a right to detain a suspect for up to 4 hours for the purpose of questioning and conducting investigative procedures. This would be extendable by 8 hours on the order of a magistrate. The time count would not include
1693 Chairman of the Law Reform Commission to the Attorney-General, 1 May 1987 (NSW Archives Box 18/3876). 1694 R v Burns (unreported, No 256 of 1987, 19 August 1988). See discussion in NSW LRC (1990: 12-14). 1695 R v Zorad (1990) 19 NSWLR 91. See discussion in NSW LRC (1990: 13-14). 1696 Wood (1997: 36).
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specified ‘time outs’, for example, the time taken to secure the attendance of a lawyer or interpreter or to provide the suspect with medical attention.
The Commission also proposed that detention be closely regulated. Police would be required to facilitate a series of rights to be given to suspects, for example, to request the attendance of a lawyer and/or an interpreter, and to contact a friend or relative. Confessions would have to be tape recorded or independently verified. Evidence obtained in breach of these requirements would be subject to a reverse onus exclusionary rule.1698 Some provisions of the English Police and Criminal Evidence Act 1984 emerged as key precedents for the Law Reform Commission report. Key examples were imposition of fixed upper time limits on detention, the creation of a special class of ‘custody officers’ to ensure compliance with statutory requirements, and the making of provision for codes of practice to underpin the legislation.1699
The Commission emphasised that these regulatory proposals were at the heart of its recommendations. Recommendation one in its final report was that an ‘integrated package of reforms’ was required. It warned that ‘partial implementation’, merely to increase powers, would be contrary to the spirit of its report.1700
The NSW Law Society did not share the Commission’s enthusiasm for the ‘authorise and regulate’ approach. It suggested that to detain a person for 4 hours was ‘an unacceptable abrogation of the rights of the individual’; and felt the ambiguity of the common law was preferable, even if detention would still occur in practice. 1701 It argued that ‘uncertainty can be a very positive force for corrective behaviour’.1702 The Legal Aid Commission also warned against
1697 NSW LRC (1990: 88). 1698 These are just some of the key recommendations, the list of which takes up 24 pages of the report: NSW LRC (1990: ch 2). 1699 See, for example, NSW LRC (1990: 93, 124-28, 141-43), Wood (1997: 461-66). 1700 NSW LRC (1990: 53-54). 1701 Law Society (1988). 1702 Law Society (1991). 362
‘tampering’ with the common law.1703
Nor was the NSW Police Force impressed. One senior police officer wrote to the Commission to complain that it was ‘preoccupied with the introduction of controls on Police’.1704 In its formal response to the Commission’s Discussion Paper, the Police Service alleged that the Commission had subjugated the interests of the community to those of the individual,1705 and described the proposals as ‘heavily weighted against effective law enforcement’. 1706
This combined opposition, coupled with political reticence, was enough to prevent quick implementation of the Commission’s 1990 report. John Dowd, Attorney- General at the time of the report, felt that fixed upper limits on detention were undesirable, and reflected ‘political correctness’ on the part of the commission.1707
The key event that revived the possibility of implementing the Commission’s recommendations as a package was the report of the Royal Commission into the NSW Police Service by Justice James Wood. Justice Wood emerged as a strong supporter of the ‘authorise and regulate’ model, favouring an outcome where ‘police were given adequate powers to perform their duties; and the rights of suspects were defined and protected’.1708 Justice Wood added that:
If the rights of suspects and police are not properly spelled out there will inevitably be confusion and dispute. This leaves room for the abuse of common law rights either out of ignorance or deliberately. Alternatively, it can result in undue hindrance to police investigations
1703 ‘Initial Analysis of Responses’ (NSW Archives Box 18/3847). 1704 District Commander, NSW Police Service Blacktown, to the Law Reform Commission, 27 January 1988 (NSW Archives Box 18/3876). 1705 ‘Response by the Commissioner of Police to the Law Reform Commission of NSW Discussion Paper: Police Powers of Arrest and Detention’, February 1988, pp 2-4 (NSW Archives Box 18/3874). 1706 ‘Response by the Commissioner of Police to the Law Reform Commission of NSW Discussion Paper: Police Powers of Arrest and Detention’, February 1988, p 11 (NSW Archives Box 18/3874). 1707 Justice John Dowd Interview, 16 May 1997. 1708 Wood (1997: 461). 363
which are… carried out for the benefit of the community at large.1709
The Wood Royal Commission also emphasised the importance of giving police adequate formal powers, to prevent cynicism and deviance on the part of police, and was aware of the precedents for the authorise and regulate model.1710 The Royal Commission gave further impetus for legislative reform through its revelation that the fabrication of evidence and falsification of testimony was an endemic part of policing in NSW.1711 The Royal Commission termed this ‘process corruption’. Like the Williams decision in 1986, the Royal Commission’s revelations created at least temporary doubt about the ability of police to continue to operate on business as usual terms without formal powers. This encouraged a greater willingness to accept a powers/ regulation trade-off. The Royal Commission’s findings may have also encouraged a greater willingness to compromise, in order to avoid further damaging the image of NSW police.
In the aftermath of the Royal Commission report, the Police Association still pushed for ‘reasonable time’ detention,1712 but expressed a willingness to accept fixed upper limits.1713 This compromise had not been offered since the immediate aftermath of the Williams decision. Police Association secretary Lloyd Taylor was prepared to accept some compromise to secure clear powers, on the basis that young police should not be placed in a position where they were expected to systematically contravene the law as stated in Williams.1714
Draft legislation was prepared as the Wood Royal Commission continued its deliberations, allowing Wood to examine the legislation and urge its enactment. The Crimes Amendment (Detention After Arrest) Act 1997 that was ultimately enacted was largely based on the model proposed by the NSW Law Reform Commission and endorsed by Wood.
1709 Wood (1997: 464-65). 1710 Wood (1997: 465). 1711 Wood (1997: 36-38, 84-95, 427). 1712 Police Association of NSW (1997: 3-4). 1713 Police Association of NSW (1997: 4).
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Among the key safeguards were time limits on detention (four hours initially; extension for up to eight hours), a requirement for a ‘custody officer’ to caution a suspect and explain the suspect’s rights, and (subject to certain limitations) rights to communication with a lawyer and another third party, the right of a foreign national to communicate with a consular official, and the right to an interpreter and medical assistance. The free legal advice scheme proposed by the NSW Law Reform Commission was not, however, implemented.
The Wood Royal Commission also gave impetus to the enactment of the Law Enforcement (Controlled Operations) Act 1997, in part by arguing at length in favour of such legislation, consistent with the ‘authorise and regulate’ paradigm.1715 The Royal Commission also provided an additional argument for the legislation through its own successful use of undercover operations and infiltration techniques. Even the Hon Elisabeth Kirkby of the Democrats, a frequent opponent of new police powers, expressed her support. She cited the Royal Commission’s successful use of undercover operations to reveal police corruption as a key reason for her support for conferring such powers on the Police Force.1716
While the ‘authorise and regulate’ paradigm has strongly influenced criminal investigation law reform in NSW since the 1980s, this was not inevitable. As we have seen, the NSW Law Society and the NSW Police Service both strongly opposed that model for different reasons. In the detention for questioning context, three ‘triggering events’ (to use Galliher’s term) were crucial to the ultimate implementation of a regulated model in NSW. The first was the Williams High Court decision, which encouraged the Police Force to seek legislative reform and led to the reference to the Law Reform Commission. The second was the fact that the matter was referred to the Law Reform Commission, rather than the
1714 Lloyd Taylor Interview, 5 June 1997. 1715 Wood (1997: 441-48). 1716 LC v 3/262 at 3046-47 (3 December 1997). 365
alternative options which would have included development of proposals between the Attorney-General’s Department and Police Department. The third was the fact that the Wood Royal Commission came down strongly in support of such legislation, at the same time that it illustrated the need for police practices to be within the law and subject to appropriate regulation.
Without these triggering events, the ‘authorise and regulate’ paradigm may not have had anywhere near the influence that it did. Detention for questioning could have been left subject to the common law, as remains the case in Western Australia, or to minimalist regulation of the kind enacted in the Northern Territory.1717 Indeed, legislation that would have imposed no upper limit on detention passed through the NSW Legislative Council in 1994,1718 and failed to be enacted only because the Government was in the unusual position of lacking a majority in the lower house. Triggering events were also crucial to the enactment of the Law Enforcement (Controlled Operations) Act 1997, in particular the High Court’s decision in Ridgeway, and the support for legislation and example of its value provided by the Wood Royal Commission. Again, it can be observed that these may well have made all of the difference to the course of reform. At the time of writing, most States and Territories still have no such legislation.
While many critics of police discretions and abuses of power would view the implementation of ‘authorise and regulate’ proposals in NSW as partial and half- hearted, the fact remains that the paradigm has exerted considerable influence over the course of reform.
Federal Influences
The debate about criminal investigation law in NSW has continued to be heavily
1717 Section 137 of the Police Administration Act 1979 (NT), inserted by section 7 of the Police Administration Amendment Act 1988 (NT). This amendment is discussed in Aughterson (1989). 1718 NSW LC v 3/241 at 1973. 366
influenced by events elsewhere. The influence of Federal legislation, and the Federal Government, has been particularly important in this period. The leading example has been in the area of telephone tapping powers.
Under paragraph 51(v) of the Australian Constitution, the Federal Parliament has legislative power with respect to ‘telegraphic, telephonic and like services’. Pursuant to section 109 of the Constitution, a Commonwealth law on this topic overrides any conflicting State law. Even before the second world war, the Commonwealth had legislated in reliance on these two constitutional provisions to impose a blanket prohibition on telephone tapping in Australia.1719 The Commonwealth’s Telephonic Communications (Interception) Act 1960 reinforced this prohibition with increased penalties, as well as setting up a regime to allow interception by the Australian Security Intelligence Organisation.
Attorney-General Sir Garfield Barwick noted that the Federal Government had decided against conferring telecommunications interception powers on police.1720 One member of Parliament did express concern that this would impose a ‘serious restriction on the State police’, which would ‘rob’ them of ‘one of the most valuable methods of detecting crime’.1721 The Commonwealth’s supremacy in this area was brought home by Attorney-General Lionel Murphy in 1973, in response to suggestions that the NSW Listening Devices Act 1969 allowed for telephone tapping. Murphy imperiously declared that telephone tapping could not be authorised by ‘some kind of obscure State Act’.1722
In fact, the Commonwealth’s legal dominion had not been enough to prevent the NSW Police Force from making extensive use of telephone tapping, a fact that emerged in the ‘Age Tapes Affair’, in which the National Times and Age
1719 See regulation 16A of the Telephone Regulations inserted by Statutory Rules No 93 of 1935 under the Post and Telegraph Act 1901 (Cth), which was subsequently replaced by the Telephonic Communications (Interception) Act 1960 (Cth), in turn replaced by the Telecommunications (Interception) Act 1979 (Cth). 1720 House of Representatives Debates v 27 at 1430 (5 May 1960). 1721 House of Representatives Debates v 27 at 1613-16 (Mr McKinnon, 11 May 1960). 1722 SMH (1973: 9 June at 2). 367
newspapers carried reports that telephone tapping by the NSW Police had revealed explosive evidence of organised crime and official corruption.1723 In response, Justice Stewart was commissioned to undertake a second Royal Commission, this time into the alleged unlawful interception activity.1724 As another joint Commonwealth/ State Royal Commission, this was a further example of increasing federal activity in the criminal justice sphere.
Justice Stewart found that in 1968 Police Commissioner Norm Allan had instructed a small group of officers to develop and utilise an intercept capability, for use in serious criminal matters.1725 Between 1968 and 1984, over 200 illegal telephone intercepts were conducted by a dedicated unit of the Police Force.1726 Somewhat ironically, Justice Stewart concluded that:
Any scope for doubt about the effectiveness of the interception of telephone conversations has been erased by the evidence received by the Commission of the success of the unlawful telephone interceptions by the NSW Police in the operations which featured in evidence given before the Commission.1727
Stewart was of the ‘firm opinion’ that State police should be given the power to intercept telecommunications.1728 His conclusions were ultimately accepted by the Commonwealth and NSW Parliaments. However, the fact that NSW police had defied the Commonwealth’s legislative prohibition, and were suspected of widespread corruption, was hardly likely to encourage the Commonwealth to hand over unfettered intercept powers. The 1987 amendments enacted by the Commonwealth retained for the Commonwealth a firm grip on the legal
1723 Stewart (1986: 3-22), Steketee and Cockburn (1986: 315). 1724 See Stewart (1986: chs 1 and 2). 1725 Stewart (1986: 81-84). 1726 Stewart (1986: 135). 1727 Stewart (1986: 340). The response to the NSW Council for Civil Liberties was that the NSW Police could have gained equivalent evidence in the cases in question by traditional means, and that in any case, authorised tapping would lack the element of surprise and hence be less effective: see Hope (1986) and Robertson (1986). 1728 Stewart (1986: 339). 368
framework. The amendments only allowed State police to access telecommunications interception powers if the Commonwealth Attorney-General was satisfied that the State had enacted legislation meeting no less than twelve prerequisites.1729 For example, the State’s law had to require regular inspection of the policing agency’s records by an independent authority, with a report to be forwarded to the Commonwealth Minister. These and other legislative prerequisites were coupled with a requirement that the State enter into a formal agreement to offset the Commonwealth’s costs in facilitating State interception.1730
Another Federal control was that the actual intercept had to be undertaken by the Australian Federal Police at the request of State Police.1731 The cost and inconvenience of ‘the notorious Canberra loop’ remained a matter of serious contention, and was cited as a major reason why for several years only NSW and Victoria enacted legislation to give their police access to these powers.1732 The Federal Police role was significantly curtailed in 1993 following strong representations by State law enforcement agencies, although the Federal Police did retain the power to terminate a State interception.1733
The Wood Royal Commission was not shy in recommending amendments to the Commonwealth’s Telecommunications (Interception) Act 1979, perhaps influenced by its own frustration in having been refused access to tapping powers by the Commonwealth.1734 Wood called for telecommunications interception to be available for more offences and for resulting evidence to be able to be used in a broader range of proceedings. He also argued that the Federal Police ‘switch-off’
1729 Section 21 of the Telecommunications (Interception) Amendment Act 1987 (Cth), inserting sections 34 and subsection 35(1) in the Telecommunications (Interception) Act 1979 (Cth). 1730 Section 21 of the Telecommunications (Interception) Amendment Act 1987 (Cth), inserting subsection 35(2) in the Telecommunications (Interception) Act 1979 (Cth). 1731 Telecommunications (Interception) Act 1979 (Cth), section 55. 1732 Senate Legal and Constitutional Legislation Committee, reference on the Telecommunications (Interception) Amendment Bill 1994 (Cth), transcript of 21 March 1995 hearing, at 419 (Phillip Bradley, chair of the NSW Crime Commission), SMH (1991: 18 June at 8), (1992: 17 September at 7, 10). 1733 SMH (1993: 20 October at 3). 1734 Wood (1997: 450-54). 369
power in respect of State intercepts should be removed. More generally, Justice Wood expressed consternation at the Commonwealth’s control of the legislative framework for telecommunications interception in NSW:
specific consideration should… be given to devolution of Commonwealth responsibility to the States, at least in relation to the selection of agencies which might use a TI power, and the offences for which it should be available. This is in recognition of the inappropriateness of the Commonwealth being involved in the enforcement of laws at a State level… [this would] avoid the distinctly unsatisfactory situation which emerged, for example, when the State of New South Wales was rebuffed in its request, supported by the State Opposition and several other law enforcement agencies, for this Royal Commission to be given agency status.1735
Despite these calls, there is no sign of the Commonwealth abandoning its overarching control of telecommunications interception laws.
Forensic procedure laws are another area in which the Commonwealth has maintained a heavy involvement, this time in the absence of a constitutional override. The Commonwealth’s initial involvement came via the Model Criminal Code Officers’ Committee, established by the Standing Committee of Attorneys- General in 1990.1736 The Committee, consisting of officers representing the Commonwealth and individual States and Territories, produced a model Forensic Procedures Bill in 1995, following extensive consultation. By late 1998, the Commonwealth, Victoria and South Australia had brought their laws substantially in line with the model.1737
The Committee’s work on this topic was given renewed impetus by the Howard
1735 Wood (1997: 453-54). 1736 It was originally know as the as the Criminal Law Officers’ Committee. 1737 MCCOC (1999: i-ii). 370
Government’s decision to go to the 1998 Federal election with a promise to commit $50 million to establishing and running the ‘CrimTrac database’, a proposed national database in which Commonwealth, State and Territory information about criminals, including DNA data, would be pooled.1738
NSW Police Commissioner Peter Ryan had been a leading advocate of Commonwealth funding for a national DNA database, securing the support of counterparts in other States for this call in late 1997.1739 The then Federal Justice Minister Amanda Vanstone took up the idea of a national DNA database with gusto.1740 Following the Commonwealth’s commitment to provide $50 million to CrimTrac, the States and Territories formally endorsed the national database at a meeting of the Australian Police Ministers’ Council in 1998.1741
The Model Criminal Code Officer’s Committee issued a further report in 2000 with a revised model Forensic Procedures Bill, with particular attention having been given to the implications of the proposed national DNA database, a centrepiece of CrimTrac.1742 The Commonwealth set a benchmark that all jurisdictions should have enacted forensic procedures legislation by 1 January 2001 in preparation for the national DNA database which was to commence operations a few months after that.1743
The basic scheme of the model bill was that forensic procedures were to be categorised as intimate (for example, blood sample, saliva sample, swab or examination of the genital area, anus or a female’s breasts) or non-intimate (for example, hair sample, nail sample, swab or examination of other areas of the body). An adult without mental impairment could consent to any procedure; and could be ordered to undergo a non-intimate procedure by a police officer. In other cases (ie, intimate procedure, child or mental impairment) a magistrate’s order
1738 Age (1998: 17 September at 10). 1739 SMH (1997: 16 December at 7). 1740 See, for example, DT (1998: 30 January at 20), Advertiser (1998: 25 April at 14). 1741 West Australian (1998: 18 November at 44). 1742 MCCOC (1999: ii-iii).
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would be required. A range of safeguards were proposed, relating to the way in which consent was to be obtained, the grounds and procedures for making orders, the conduct of procedures and the use of results.
At first, civil libertarians viewed the model with some alarm. NSW civil libertarian Bev Schurr warned that the Commonwealth was:
seeking to set standards for State criminal law through the Model Criminal Code Officers’ Committee and the Standing Committee of Attorneys-General… (T)he Commonwealth wants to lead the way - but often from the position of the lowest common denominator… We must watch what Canberra is doing, if only to ensure our existing rights are not eroded.1744
By 2000, it had became apparent that from a civil libertarian perspective, compliance with the model was actually the best outcome that could be hoped for from the States and Territories. The model bill was very much the benchmark against which the NSW Crimes (Forensic Procedures) Bill 2000 was measured when it was introduced into State Parliament. The NSW Government itself was at pains to emphasise that the NSW Bill was ‘largely based on the model provisions’.1745 On the other hand, critics of the NSW Bill including the Bar Association and Law Society, centred their criticisms on safeguards and limitations in the model (and Commonwealth Act) that had been excluded from the NSW Bill.1746 For example, the model bill provided that a procedure could be ordered if it was ‘likely’ to confirm or disprove the suspect had committed an offence. The NSW Bill lowered the threshold to ‘might’ confirm or disprove
1743 Australian (2000: 15 November at 4). 1744 Schurr (1995: 18-19). 1745 LA (Second reading speech by the Police Minister, Mr Whelan, 31 May 2000). Not yet printed in volume form. 1746 See Haesler (2001: 29-30) and criticisms quoted in LA (M Hatcher, 6 June 2000) - not yet printed in volume form, Saul (2001: 87-90), LC (Hon Dr A Chesterfield-Evans, 21 June 2000) - not yet printed in volume form. 372
(sections 17 and 20).1747
The NSW Opposition expressed its support for the Commonwealth’s involvement in the model legislation process, and for the project of national uniformity.1748 This was a level of respectability and support that the Whitlam and Fraser Government’s criminal investigation initiatives had severely lacked. The Commonwealth’s ultimate tool for enforcing compliance with the model were the rules it imposed for matching against Commonwealth DNA data on the CrimTrac database. Only jurisdictions having ‘corresponding laws’ as prescribed would have full access to Commonwealth data and full co-operation from the Commonwealth.1749 NSW followed the model in also limiting access to NSW material to those jurisdictions with a ‘corresponding law’.1750 The NSW legislation was in fact the closest State or Territory law to the model, and was prescribed as a ‘corresponding law’ by the Commonwealth,1751 with effect from 20 June 2001, the day on which the CrimTrac database was launched.1752
The forensic procedures project was the harbinger of ever increasing Federal involvement in the framework for criminal investigation in Australia. In the 2001 Federal election, the Liberal/ National Government made Federal involvement in law and order a central plank in its re-election campaign. Prime Minister Howard proposed a reference of constitutional power from the States to the Commonwealth in relation to international crime and terrorism. The Prime Minister’s announced plans also included a national crime summit of Commonwealth, State and Territory leaders; and the improvement or replacement
1747 The NSW Bill also lowered the threshold for seeking a person’s consent to a procedure, and for securing an order to test a prisoner (by removing the requirement for the court to consider the seriousness of the offence: section 17). 1748 LA (M Hatcher, 6 June 2000; Mr Kerr, 7 June 2000). Not yet printed in volume form. 1749 Crimes Act 1914 (Cth), Division 11 of Part 1D, inserted by the Crimes Amendment (Forensic Procedures) Act 2001 (Cth). 1750 Crimes (Forensic Procedures) Act 2000, Part 12. 1751 Crimes Regulations 1990 (Cth), regulation 6E and schedule 3C, inserted by the Crimes Amendment Regulations 2001 (No 3) (Cth). At the time of writing, NSW had not passed its ‘corresponding law’ regulation but was expected to do so in the near future. 1752 CT (2001: 21 June at 5). 373
of the National Crime Authority.1753
Against this tide of Federal dominion, NSW did turn the tables with its 1997 ‘assumed identities’ legislation. In a reversal of the strictures that had been imposed on NSW for telecommunications interception, the NSW Police Minister explained that Commonwealth agencies would be able to use NSW identity documents under the legislation. However, participation by Commonwealth agencies would ‘depend on their demonstrated capacity to comply with the accountability mechanisms set out in the bill’.1754
The NSW Premier wrote to the Prime Minister seeking reciprocal Commonwealth legislation.1755 The Wood Royal Commission also recommended Commonwealth legislation.1756 The fact that NSW both made its legislation available to Commonwealth agencies (something it also did for controlled operations),1757 and sought Commonwealth legislation for the use of its agencies, was a powerful sign of the increasingly federal focus on criminal law and practice in Australia. The Commonwealth responded to the suggestion from NSW, enacting provisions in 2001 that, among other things, gave NSW agencies access to Commonwealth identity documents.1758
The Commonwealth and NSW also worked in tandem to prepare and enact a uniform evidence law. The NSW and Commonwealth versions of the Evidence Act 1995 were based largely on the ALRC’s 1987 Evidence report.1759 Of particular relevance in the criminal investigation context was the enactment of a reverse onus rule in relation to unlawfully obtained evidence, as recommended by
1753 Liberal Party (2001: 5-6); Age (2001: 29 October at 2), CT (2001: 29 October at 5). 1754 LA v 3/268 at 9536 (Second reading speech on the Law Enforcement and National Security (Assumed Identities) Bill 1998, 10 November 1998). 1755 LA v 3/268 at 9536 (Second reading speech on the Law Enforcement and National Security (Assumed Identities) Bill 1998, 10 November 1998). 1756 Wood (1997: 447). 1757 Schedule 1(4) to the Law Enforcement (Controlled Operations) Amendment Act 1999, amending section 3 of the Law Enforcement (Controlled Operations) Act 1997. 1758 Schedule 2 to the Measures to Combat Serious and Organised Crime Act 2001 (Cth), inserting Part 1AC of the Crimes Act 1914 (Cth). 1759 See comment by the Hon J Shaw, Attorney-General, in his second reading speech: LC v 3/245 at 374
the ALRC in 1975 and 1987.1760
The examples provided by telecommunications interception, forensic procedures and evidence law clearly illustrate the growing interdependence of Commonwealth and State/ Territory legal frameworks and law reform efforts relevant to policing. On the whole, the Commonwealth has tended to encourage a more measured approach than the States and Territories might otherwise have adopted. To some extent, this has mediated the tendency, in a climate of state law and order politics, to focus on immediate and local issues. In the 2001 Federal election campaign, however, there was a strong move to a more law and order oriented approach at the Federal level, focusing on the response to terrorism. The Commonwealth appears set to enact powers significantly in excess of those at a State or Territory level, for example in authorising lengthy detention of those suspected to have information about terrorism.1761
Among the States, the Commonwealth has had a particularly high level of interaction on legal and policy issues with NSW. One reason is that NSW is the centre of much Federal law enforcement activity (particularly against the drug trade). Another is that as the most populous State with the largest bureaucracy, NSW has a greater capacity to engage with the Commonwealth at the bureaucratic level than most other States and Territories. The proximity between Sydney and Canberra is also a relevant factor. It seems certain that this interaction, whether cooperative or combative, will continue to grow in the years ahead.
International Influences
International treaties have continued to exert only a modest direct influence on criminal investigation law reform in NSW and Australia, but there are signs that
113 (24 May 1995). 1760 Evidence Act 1995 (NSW), section 127; Cth Evidence Act 1995 (Cth), section 127. 1761 Liberal Party (2001), ‘Pushing law and order buttons’: DT (2001: 29 October at 16). 375
this influence may increase considerably in the coming years. A notable development was the inclusion of a direct reference to the International Covenant on Civil and Political Rights in section 138 of the Evidence Act 1995. This section provided that in deciding whether to admit unlawfully or improperly obtained evidence (under the ‘reverse onus’ evidentiary rule), a court was to take into account a range of considerations. One of these was ‘whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights’.1762
A number of lawyers and academics have made ongoing efforts to give international human rights law a more central place in the development of Australian criminal law and procedure.1763 However, the open textured and inconclusive nature of many international human rights obligations has limited the extent to which these obligations can provide a model for Australian legislation. For example, the NSW Law Reform Commission inquiry on the right to silence received many submissions arguing that the right needed to be maintained in light of obligations under the International Covenant on Civil and Political Rights and the convention on the Rights of the Child. However, the Commission concluded that there was no internationally accepted rule or standard that clearly precluded abrogation of the right to silence.1764
The draft Cybercrime Convention promulgated by the Council of Europe, which non-European nations may ratify, points to the likelihood that treaties will more strongly influence the specific terms of criminal investigation legislation in future. The Convention sets out a series of powers that should be enacted to facilitate investigation of on-line crime, including search powers, compulsory assistance obligations and data retention requirements.1765 On the other hand, the ratifying state must also demonstrate compliance with European human rights norms in
1762 Evidence Act 1995, paragraph 138(3)(f). 1763 For example, Brown, Farrier, Egger, and McNamara (2001: 306-18); (1997) 3(2) Australian Journal of Human Rights. 1764 NSW LRC (2000: 70). 1765 European Committee on Crime Problems Committee of Experts on Crime in Cyberspace, Draft
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framing these powers.
To date, events in NSW have been more strongly influenced by proposals and reforms in specific overseas jurisdictions. The influence of developments (and perceived developments) in Britain and America have been noted in previous chapters, and these have continued. For example, the ‘zero tolerance’ policing model drawn from New York exerted considerable influence on the debate about policing and law in Australia in the late 1990s.1766
The links between Australia and Britain have also remained important. A notable example is the influence of David Dixon, who moved to Sydney after being heavily involved in research and analysis concerning the impact of the Police and Criminal Evidence Act 1984 in England. As a consultant to the NSW Law Reform Commission in the late 1980s, he was able to channel his understandings directly into the thinking of the Commission. The Commission drew heavily on key features of the English legislation in its recommendations, including recommendations for ‘custody officers’, ‘custody records’, and ‘Codes of Practice’.1767 The Wood Royal Commission also commissioned papers from Dixon and some other academics, and was strongly influenced by Dixon’s account of the success of the Police and Criminal Evidence Act 1984.1768 Furthermore, two prominent NSW civil libertarians that I interviewed, Ken Buckley and Tim Anderson, made specific and unprompted reference to the influence David Dixon’s analysis and advocacy had exerted over their thinking.1769
There have also been some links to United States experience. For example, academic David Weisbrot brought extensive insight as to American criminal investigation law and procedure to his role as one of the Commissioners responsible for the NSW Law Reform Commission’s Police Powers of Detention
Convention on Cybercrime. 1766 Dixon (1998), Cunneen (1999), Darcy (1999: 290-91). 1767 NSW LRC (1990: 73, 74, 141). 1768 Dixon (1997: 38, 462, 466). 1769 Ken Buckley Interview, 11 November 1997 and Tim Anderson Interview, 17 September 1998. 377
and Investigation after Arrest report.
Policing Practice and Legal Regulation
There have been many studies of the impact of legal regulation on police practices in investigating crime and dealing with suspects, including numerous studies of the impact of various provisions of the Police and Criminal Evidence Act 1984 on policing in England and Wales. In 1997, the British Home Office published an excellent syntheses of the results of the research to that time.1770 Dixon and Reiner, among others, have undertaken their own synthesis.1771 These analyses disclose four findings of greatest relevance to the reform of criminal investigation law in Australia.
The first is that it cannot be assumed that conferring rights or safeguards on suspects will have significant implications. Nor can it be assumed that this will have any significant impact on police practices and effectiveness. Ignorance of legal rights, inadequate resources to press those rights, deference to police and a genuine desire to co-operate with them are all reasons why rights and safeguards may not operate ‘against’ police. There are many examples of the limited impact of ‘rights’ in practice.1772 A pilot program in Victoria to provide independent third parties to juveniles being questioned provided a classic example. Far from underpinning the rights of juvenile suspects ‘against’ police, a considerable number of third parties were passive and irrelevant, while others actually pressed the juvenile to co-operate with police, including by confessing to the offence.1773 In Queensland, a significant increase in the frequency with which suspects were told of their right to attempt to contact a lawyer did not result in more frequent attendance of lawyers, in the absence of a funded legal representation scheme.1774
1770 Brown (1997). 1771 Dixon (1996), Dixon (1997: chs 2, 3 and 7), Reiner (2000: ch 6). 1772 See further Brown (1997: ch 5), Reiner (2000: 181). 1773 Deane (1994). 1774 Criminal Justice Commission (2000: vi, ch 4). 378
The NSW Law Reform Commission report on detention and questioning drew heavily on overseas research showing that a whole series of ‘rights’ tended not to undermine the effectiveness of investigations, despite widespread assumptions to the contrary. This was true of the right to silence, the keeping of records, the requirement to provide a separate ‘custody officer’, the provision of access to legal advice, allowing for the presence of a lawyer, and notification of an arrested person’s family and friends of their arrest.1775
It is fair to point out that much recent criminal investigation legislation in NSW has reflected this insight, in attending to the context in which rights are exercised and not just the substance of rights. For example, numerous provisions have been enacted requiring police to notify people of their rights, something that was highlighted as vitally important to the effectiveness of rights in the 1975 Criminal Investigation report.1776 Under the Search Warrants Act 1985, NSW police must give the occupier of premises on which a search warrant is to be executed a notice outlining details of the warrant and the powers it confers.1777 Another example is that they must ensure a person who is detained is notified ‘orally and in writing’ of their rights to communicate with a third party and a lawyer.1778
A second key point to emerge from the literature on legal rules and policing practice is that rules are more likely to be complied with where compliance can be verified. A major theme of the English research is that there has been greater compliance by police with ‘in station’ legal regulation than out of station regulation.1779 There has, for example, been a significant degree of non- compliance with limitations on, and requirements to record, stops and searches on the street. There has been much greater compliance with requirements to explain suspects’ rights in custody, via the ‘custody officer’ system. This is consistent
1775 NSW LRC (1990: var). 1776 ALRC (1975a: 44-45). 1777 Search Warrants Act 1985, section 15. 1778 Crimes Act 1900, section 356N. 1779 Brown (1997: 251), Reiner (2000: 182). 379
with the findings of the Queensland Criminal Justice Commission defendant surveys, which found that a caution was more likely to be given before questioning a suspect in-station than in the field.1780
Again, it is fair to say that verification mechanisms have increasingly been factored into criminal investigation law in NSW, in recognition of the limits to the effectiveness of stand-alone substantive rules. For example, an authorised justice must record the grounds for issuing a search warrant to a police officer.1781 In turn, the executing police officer is to report to the justice on the execution or non- execution of the warrant.1782 Similarly, the Ombudsman has been given an audit role under the telecommunications interception and controlled operations legislation; and reviews of recently enacted legislation have become standard. All of these measures enhance the ability to verify compliance with legislation.
A third key point to emerge from the research on policing and legal regulation is that legislative reform is more likely to succeed where it is introduced into a context offering some structural and cultural support for reform. This support can be closely linked to the specific terms of the reform, for example, training for police and awareness initiatives for the public to explain the terms and objectives of the legislative change.1783 The broader social, political and organisational context, that is, whether the prevailing culture is one that is supportive of the objectives of the reform, will influence the impact of the legislation.1784
Training and awareness raising makes people aware of rules, raises the credibility of the rules, enhances understanding of their purpose, and helps foster an expectation that (at the least) they should be borne in mind in operational decision making. Failure to consider the importance of structural and cultural contexts (including training and awareness raising) has been one of the major shortcomings
1780 Criminal Justices Commission (2000: ch 4). 1781 Search Warrants Act 1985, section 13. 1782 Search Warrants Act 1985, section 21. 1783 Brown (1997: 252), Dixon (1996: 286). 1784 Dixon (1997: 171, 1999: 162-63). 380
of the criminal investigation debate in NSW and the reforms that have been enacted. For example, police have often complained of inadequate training when new legislation has been introduced.1785 This deficiency was strongly brought home by the Ombudsman’s report on the Police Powers (Vehicles) Act 1998. The Ombudsman found numerous instances in which there appeared to have been genuine confusion on the part of police as to the requirements of the legislation. For example, some police had told a person questioned under the Act that they did not have to say anything if they did not wish. This was misleading. Failure to answer was in fact an offence.1786
In another case, a prosecution was withdrawn because a police officer had wrongly warned a person that failure to answer questions about a theft could result in the person being charged with the theft. The officer should have warned that failure to answer could result in a prosecution for failing to answer, not for the theft.1787 A regional police radio centre did not know about the roadblock power in the Act, months after it had commenced. A number of officers who had used the roadblock power had received no training on the legislation. These kinds of errors cannot sensibly be attributed to ‘results pressure’ or ‘police culture’. One officer commented that ‘There are so many changes in legislation etc and so many procedures that police have to remember. It’s something that doesn’t stick with you’.1788 The Police Association specifically requested the Ombudsman’s office to focus on the problems associated with insufficient training, and it obliged with a series of recommendations for improved training and guidelines.1789
This was a welcome departure from the usual focus on the substantive terms of legislation rather than on the context for implementation. This can be understood as part of a broader characteristic of Australian public policy. In comparison to other countries, Australia has placed particular reliance on laws and legal
1785 For example, in relation to the Crimes Amendment (Detention After Arrest) Act 1997: Solaris (1999: 48). 1786 NSW Ombudsman (2000b: 44-47). 1787 NSW Ombudsman (2000b: 57-58). 1788 NSW Ombudsman (2000b: 112).
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institutions to address social and economic problems. Numerous commentators on Australian history, law and society have noted this phenomenon.1790 Where other mechanisms of social ordering are ignored, law is left out on a limb, with less effectiveness than if it were complemented by other strategies.1791
It is notable that the importance of implementation strategies was recognised in two atypical areas of criminal investigation law: domestic violence and random breath testing. There are grounds to suspect that implementation was taken more seriously here, because the subjects of these powers were potentially ‘respectable’ members of society, rather than the ‘criminal class’. As we have seen, the results of random breath testing were extremely impressive.
The fourth key point that can be discerned from the literature on law and policing is that subject to the previous three points, legal regulation has a real capacity to exert a positive influence on criminal investigation practices.1792 Police are more likely to take account of a suspect’s interests and be procedurally fair where this is required by clear cut legal framework. American studies have shown that almost all suspects are given the Miranda warnings (outlining the right to silence and right to a lawyer) by police.1793 Brown’s review of the operation of the English Police and Criminal Evidence Act 1984 concludes that the Act ‘introduced a greater element of fairness into pre-charge procedures, in that suspects are now more aware of their rights and given the chance to exercise them’.1794 These findings are persuasive, although it should be noted that some have disagreed. McConville, Sanders and Leng, argue in their 1991 account of English criminal procedure, The Case for the Prosecution, that structural and cultural factors leave legal reform with little purchase on policing practice.1795
1789 NSW Ombudsman (2000b: 111-18). 1790 For example, Tomasic (1993: 139), Neal (1999), Davidson (1991: 1-50). 1791 Tomasic (1993: 139-40), Bottomley and Parker (1997: 188-89). 1792 Contrast Hogg (1987: 126). 1793 Leo (1996a, 1996b: 650). 1794 Brown (1997: xix). 1795 McConville, Sanders and Leng (1991: ch 9). 382
The findings of a study by the Queensland Criminal Justice Commission offer grounds for some optimism. The study, undertaken in the mid-1990s, involved interviews with criminal defendants in that State.1796 Defendants reported that police did very little to facilitate attendance of a lawyer, despite the nominal common law right to obtain a lawyer. Police generally did not mention the issue. When raised by the suspect they often discouraged it. Yet in the same jurisdiction, defendants reported very high levels of compliance with a juvenile’s specific statutory entitlement to have an independent person present when questioned by police. The study concluded that ‘where police are provided with clear, legally enforceable directions in relation to the exercise of certain of their powers, they largely comply… (this) supports the case for greater legal regulation of the exercise of police powers’.1797 While the results of the 1999 survey were more qualified on this point, some new rules had been largely followed by police, for example a requirement to notify- suspects of their rights.1798
Legal regulation has been shown to be positive in another sense. There is evidence from Britain and America that legal regulation has encouraged the development of more rigorous, sophisticated and professional approaches to the investigation of crime.1799 It is notable that such findings have been made in the American context, given the oft-repeated warnings in NSW debate that American law has ‘made it almost impossible for police to carry out their duties’.1800
The absence of legal regulation (including under the minimalist common law approach) encourages reliance on short-cuts to get from police hunch to criminal conviction by the easiest route. Rutherford’s analysis of NSW police verballing, outlined in chapter 6, powerfully underlined this point. The range of short-cuts employed have tended to include fabricated confessions and manufactured physical evidence, as described in previous chapters. Frame-ups are simply not
1796 Edwards (1997). 1797 Edwards (1997: 232-33). 1798 Criminal Justice Commission (2000: ch 4). 1799 Leo (1996b: 668-74), Walker (1988), Walker (1989: 280), Brown (1997: 54), Dixon (1996). 1800 See, for example, LC v 3/227 at 6421 (Hon F Nile, 11 December 1991) and also chapter 4. 383
good crime control, as Dixon and Hogg have each pointed out, because too often an innocent person is ‘framed’ and a guilty person goes unpunished.1801
Legal regulation encourages police to try harder to secure properly based convictions, drawing on credible evidence. This is not to suggest that unregulated policing is uniformly bad and that legislation is a magic bullet. Major limitations have been noted above. It is fair to say, however, that more rigorous legal regulation of criminal investigation can contribute to a more effective approach to the investigation of crime.
Conclusion
There has been a fundamental tension at the heart of the development of criminal investigation law in NSW since 1980. On the one hand, law and order politics has done much to generate interest in the topic on the part of politicians, the media and the public. Police and politicians have been under pressure to do more against crime, and providing new powers has been a key means to this end. Many initiatives have been advanced (at least in part) to feed the law and order agenda, especially since the late 1990s.
On the other hand, the course of reform has been heavily influenced by the kind of reasoning espoused in the ALRC Criminal Investigation report. Even though two Criminal Investigation Bills had been brought down by fierce police opposition in 1977 and 1981, the ‘authorise and regulate’ model lived on. The reforms that have unfolded since 1980 have subjected NSW police to far greater regulation than previously, at the same time as these reforms have clarified and enhanced police powers. Even the judges, magistrates and justice involved in the authorisation process have been subjected to much greater regulation.
1801 Dixon (1997a: 283-84), Hogg (1996: 314). 384
To a significant extent, law and order and regulatory reform are at odds. The idea that police should be let loose on crime is a central theme of law and order politics. The idea that police should be confined by legal rules is central to the ‘authorise and regulate’ model. Yet despite this apparent direct conflict, regulation has expanded in an era of law and order politics.
This is explained in part by the conflicting pressures that legislators have faced. When they have set up review processes, they have often turned to judges and lawyers, in the role of Royal Commissioners, Law Reform Commissioners or Departmental advisers. The mind-set of these legally trained individuals has led to a natural tendency to favour legal regulation. Recurring police malpractice controversies have created pressure, from time to time, to address this malpractice. When governments have urgent instant solutions to problems of malpractice or law and order, they have often had to turn to predigested proposals. Royal Commissioners and Law Reform Commissions have often provided the kind of blueprints that can quickly be taken up.
In recent times, NSW Police Commissioners have more readily pursued powers, and more readily accepted a powers/regulation trade-off. The consequences of High Court decisions, Royal Commission reports, and Ombudsman investigations can be seen at work here. The closed environment in which policing took place in the 1950s, underpinned by a compliant judiciary, was opened up from the 1980s onwards. There were occasions where Police Commissioners felt their officers could less easily rely on comfortable arrangements to make up for a lack of formal powers. In these circumstance, there were times when police had more incentive to seek powers. While the NSW judiciary proved resilient to external pressures to more closely regulate police,1802 even the temporary shocks associated with cases like Williams and Ridgeway were enough to open up the legislative reform debate.
Proposals for new powers came forward in a climate where Royal Commission
1802 Contrast Dixon (1997: ch 5). 385
reports, the Ombudsman and other sources had demonstrated the dangers of uncontrolled police discretion. To this was added the influence of the ‘authorise and regulate’ paradigm, for which the baton was passed from the ALRC to the NSW Law Reform Commission and then to Justice Wood. Federal legislation and international developments have helped give this paradigm continuing influence in NSW. The upshot is that the way that police investigate crime has been subject to closer legislative regulation at a time of law and order populism. International experience provides grounds for hope that this regulation can make a continuing contribution to professionalism within the NSW Police Service, in the face of a never ending series of corruption scandals.
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9. INSIDE THE STATE
Looking back over the history of NSW criminal investigation law since 1945, a whole series of paradoxes are apparent. The contrast between law and order politics and increasing legal regulation of police is only one example. Considerable concern has been expressed about the effectiveness of the judicial role in the authorisation process, yet that role has substantially increased. Police and police unions have become central players in the push to enhance police powers, yet they were extremely reticent at first. There has much interest in the law of criminal investigation; but little interest in implementation. Concern about crime and law and order has focused attention on grassroots, local concerns; yet the bigger picture shows an increasing role for the Federal Government and for national approaches. Some of the most significant High Court decisions in this period have been notable for restating the existing law, rather than laying down novel legal principle.
How do we account for these paradoxes?
One way is to treat as problematic the question of what criminal investigation law reform has been about. Both users and critics of the ‘balance’ paradigm have focused on criminal investigation law reform being ‘about’ police powers and suspects’ rights. The dominance of ‘balance’ and the rights/powers dichotomy in public debate and academic analysis has tended to obscure a different and fundamentally important dimension to the reform process. This is the role of criminal investigation law as a mechanism for regulating relations within the state.
If we think back over the earlier chapters, it is evident that criminal investigation law has been about much more than the interactions between police and the community. In large part, it has been about relationships between different limbs
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of the state: parliament, the elected government, the police, alternative policing organisations, the Ombudsman, the judiciary. This is nothing new. Finnane suggests that police powers reforms in the early twentieth century can be understood as ‘the product of political struggles conducted mostly within the interstices of the state’.1803 Shifting influences and changing agendas within the state have been a driving force in much of the criminal investigation law reform debate. Reform has been directed to a significant extent to redefining roles and relationships within the state.
Let us recap on some of the key events recounted in previous chapters. We start, in 1945, with police, the elected government and the judiciary all accepting that the regulation of criminal investigation is a matter for police and the judiciary. In England, the judges have gone so far as to promulgate extra-curial rules, subsequently adopted in Australia. In NSW, the elected government has minimal interest in regulation of investigatory practices.
The first sign of a change comes with concern about the road toll. The police/ judiciary nexus is manifestly not producing results, as the road toll begins to rise. There are calls for the government to bring forward legislation to address the problem. Expectations build in other areas. An electorate concerned about social change, drug use, violence and other crime is not so sure that timeless, ‘free British way’ solutions are enough. Politicians who talk about getting active in law and order find a receptive audience. Liberal Premier Askin comes to office, his winning campaign formula incorporating a law and order platform.
Breath testing is introduced and has measurable success. Federally, the Whitlam Labor Government comes on the scene and shakes things up in the policing field as elsewhere. The Commonwealth will take a larger role on the crime and justice stage. It proposes an Australia Police and commissions the Criminal Investigation report. That report declares the common law approach to criminal
1803 Finnane (1987: 89). 388
investigation law to be inadequate. A new Liberal/ National Federal Government later creates the Australian Federal Police and draws up a Criminal Investigation Bill largely reflecting the ALRC’s recommendations.
Police see their role coming into the political spotlight, but fear the demise of the semi-private and comfortable police/ court axis on which criminal investigation has operated. The threat of external regulation provokes a furious reaction. State policing organisations and police unions fear outside interference, by the legislature, by the third parties that would be ushered in (lawyers, Ombudsman) and by the Commonwealth. Blocking this change is a far higher priority than securing ‘new’ powers.
The perceived responsibility of the elected government for crime and justice keeps growing; so does the pressure felt by politicians to be seen to be pulling some levers. The Wran Government in NSW responds to concern about domestic violence not only with new training for police but with new powers, designed to formally signal that it is encouraging intervention. It secures guidelines obliging police to use their breath testing powers more robustly. Random breath testing laws are enacted soon after, without police having sought these powers.
The war on drugs emerges as another area where there are strong pressures for governments to act. Royal Commissions ensue. In the area of criminal investigation law, many recommendations are surprisingly liberal. Justice Stewart, for example, places emphasis on curtailing police misconduct. Perhaps most importantly, major outcomes place the hands of governments on levers that outflank police and establish new structures, notably crime commissions. The combined efforts of police and civil libertarians are not enough to block the establishment of the National Crime Authority, another escalation in Federal activism.
On a macro level, policing organisations and police unions begin to get more comfortable with legislation being the primary mechanism for regulating criminal 389
investigation powers. This is given further impetus when the High Court refuses to patch up holes in the formal criminal investigation framework. Reform is now, unequivocally, a matter for the politicians. Powers to detain suspects, conduct undercover operations and take blood samples will not be formally granted by the courts.
From the 1980s, the NSW Government brings forward a heavy legislative program in this area, with the politicians declaring over and over that they are taking charge, and seeking to identify themselves with enforcement outcomes. Judicial officers lose not only their primacy in setting the overall framework. The role of judges, magistrates and justices of the peace in authorisation processes is defined, qualified and regulated. Politicians dictate that other agencies are to operate with the context of criminal investigation law, including the Ombudsman with a series of oversight roles, and the CrimTrac agency, at the heart of the Commonwealth’s national DNA system. Other players appear elsewhere in Australia: in Queensland, a public interest monitor; federally and in NSW, Privacy Commissioners.
Considered in aggregate, the major shifts in criminal investigation law in NSW have in large part been about redefining the relationships between components of the state in relation to the investigation of crime. Three major relationships have been redefined. The first is between the elected government and the judiciary. Elected governments have, through their influence over the enactment of legislation, sought to formally signify that they have taken the reins from the judiciary in setting the framework for criminal investigation. The High Court has encouraged this process. Politicians have responded to the need for government to be seen to be responsive to concerns in the electorate about a whole range of matters, under the general heading of ‘law and order’.
The second key relationship is between police and the elected government. Despite considerable rhetorical commitment to police autonomy and ‘standing behind’ the police, governments have sought to give themselves alternative lines 390
of influence, outflanking police at least to some extent. The National Crime Authority, NSW Crime Commission and the Ombudsman are key examples. Legislation has also given a much firmer basis for lawyers and other independent persons to be present when a suspect is questioned, even if the costs and difficulties in obtaining legal representation remain significant. Taken together, these measures mean that is no longer accurate to categorise NSW as having a system of ‘secret policing’, a comment Sallmann and Willis made of Australia in 1984.1804 Finnane has noted this transition. In place of the once ‘relatively uncluttered’ policing environment, there are now a ‘wide variety of institutional players’.1805 The police have failed to deliver everything governments wanted (for example, a sophisticated approach to organised crime). The ‘law and order’ context has encouraged governments to find ways to get more.
Even the creation of law reform bodies can be seen as part of this process. These bodies helped create ‘a new level of scrutiny of the criminal justice system’.1806 There has been a parallel development in relation to internal oversight of complaints against police. Lewis has traced the struggles that led to the establishment of such oversight, which opened up the ‘closed policy community’ in which police had a pre-eminent role. Lewis describes this in terms of a ‘split in the policy community’ (ie, government and police) which ‘altered the nature of police government relations’.1807
The third key relationship has been between the Federal and State governments. Over time, the Federal government has sought to put its hands on an increasing number of criminal justice levers, including through the National Crime Authority, the control of telephone tapping laws, and the development of model forensic procedure laws for the CrimTrac database. Federal politicians are answerable to the same electorate as their State counterparts. Little wonder they have pursued criminal justice agendas with increasing vigour. It may be that developments in
1804 Sallmann and Willis (1984: 36). 1805 Finnane (2000a: 16-17). 1806 Finnane (1990: 225).
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international law will lead to instruments of control emerging at an even higher level in future. Concerns surrounding international terrorist activity offer the prospect of significant advances in transnational crime control activity and policy setting.
These same trends can be seen at work in other elements of the criminal justice process. The shift from judicial to government/legislative control can be seen in the codification of evidential rules (the Commonwealth and NSW Evidence Act 1995) and substantive criminal law (the Model Criminal Code and the Commonwealth Criminal Code Act 1995). In the sentencing arena, it can be seen in legislated sentencing guidelines (including minimum sentences), and in the NSW legislation laying a framework for judicial guidelines.1808 The shift away from an exclusive police domain can be seen in the establishment of a NSW Director of Public Prosecutions.1809 The shift to Federal intervention can be seen in its overriding of the Tasmanian anti-gay law and the Northern Territory pro- euthanasia law, the Commonwealth’s active resistance to a heroin trial, and in its central role in the Evidence Act and Criminal Code projects.1810
The change to the way criminal justice is regulated is symptomatic of a broader trend in the nature of law and of intervention in modern western societies. There has been a move away from governance via maintenance of the ‘rule of law’. Broad, abstract legal regulation has given way to detailed targeted regulation, designed to promote specific outcomes. Law has increasingly been used more as a specific tool of governance rather than as a symbol of stability and rationality.1811
Government remains central to criminal investigation in NSW and Australia, notwithstanding the significant overall growth of private policing worldwide in
1807 Lewis (1999: 32-33). 1808 Crimes (Sentencing Procedures) Act 1999, sections 22-24 and 37. 1809 Director of Public Prosecutions Act 1986. 1810 Human Rights (Sexual Conduct) Act 1994 (Cth), Euthanasia Laws Act 1997 (Cth), Liberal Party (2001). 1811 For an overview of these developments, see Cotterrell (1992: 165-66). 392
recent decades.1812 Privatisation and funding cut backs may dilute government intervention at some future time, but to date there has been no sign that NSW politicians are going to put the criminal justice system at arms length. The controversy about private prisons in Australia and internationally,1813 highlights the fact that not even private sector provision of criminal justice services can extricate the politicians from the politics of criminal justice.
One reason that elected politicians are unlikely to withdraw is the ongoing pressure to respond to competing community demands. In the 1950s, for example, Aboriginal people had virtually no voice in Australian political debate. Today, they have a significant voice. As a result, the policing of Aboriginal people will not return to being a private domain, whatever the specifics of a given government’s policy agenda. Issues concerning Aboriginal people and the criminal justice system will continue to keep politicians under pressure to ‘do something’, just as they are under pressure to ‘do something’ about juveniles and immigrants and high levels of crime and disorder. The Wootten report on the Gundy shooting and the controversy about Northern Territory mandatory sentencing laws both illustrate why the ‘quiet years’ won’t be coming back soon.
With all these shifting roles to attend to, little wonder that the actual impact of laws on the ground have sometimes received little attention in the reform debate!
One important theoretical implication of this analysis concerns the ‘rhetoric of law’ as expounded by McBarnet and outlined in chapter 1. Recall that she distinguished between ‘the general principles around which the law is discussed - the rhetoric of justice - and the actual procedures and rules by which justice or legality are operationalised’.1814
McBarnet argued that the rhetoric about the investigation and prosecution of crime
1812 See, for example, Johnston (1992), Jones and Newburn (1998). 1813 See, for example, Harding (1997) and Moyle (2000). 1814 McBarnet (1983: 6). 393
that she encountered emphasised strong protection of the liberty of actual or potential accused criminals. The ‘democratic ideology of justice proclaims that in the battle between the state and the accused the system is heavily biased in favour of the latter’.1815 The ‘whole flavour of the rhetoric of justice is summed up in the idea that it is better for ten guilty men to go free than for one innocent man to be wrongly convicted’.1816 Yet McBarnet found that the reality of law was at odds with the rhetoric. The law governing criminal investigations, trials and appeals was actually ‘decisively’ geared towards securing convictions, with a defendant often in a situation of significant legal disadvantage in seeking to avoid conviction.1817
McBarnet demonstrated the existence of the rhetoric of the law through two main sources. First, there were the statements of judges and police directly asserting that criminal procedure law was heavily geared towards the rights of the accused. Second, there were the comments of both academic analysts and civil libertarians, who, in focusing on the problem of police and others bending the rules, expressly or implicitly assumed that the rules themselves were strongly protective of liberties.1818
McBarnet’s explanation as to why the rhetoric of the law takes this form is that:
One of the essential justifications of the democratic state is precisely that it is based on legality, that the relationship between the state and individuals of civil society is one governed not by the arbitrary exercise of power but by power exercised within the constraints of law. The criminal justice system is the most explicit coercive apparatus of the state and the idea that police and the courts can interfere with the liberties of citizens only under known law and by means of due process of law is thus a crucial element in the ideology
1815 McBarnet (1983: 154). 1816 McBarnet (1983: 2). 1817 McBarnet (1983: 101, and generally). 1818 McBarnet (1983: 1-7, 26, 79-80). 394
of the democratic state.1819
McBarnet’s analysis is best understood by contrast with earlier analysis of the rule of law by EP Thompson. Whereas McBarnet emphasised the complete disjuncture between legal rhetoric and legal reality, Thompson argued (in effect) that legal reality could not move too far from legal ideology without undermining the effectiveness of that ideology. His account was, however, consistent with McBarnet’s in accepting the central importance of the idea that justice and fairness are central to law:
If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall be seen to be just.1820
McBarnet, on the other hand, argues that the separation between the rhetoric of law and the reality of law serves the function of allowing the state to enforce a coercive apparatus without being bound by the logic of a more procedurally fair approach.1821 The essence of McBarnet’s account is that the rights-oriented rhetoric of law maintains state legitimacy; the conviction-oriented reality of law maintains order.
To place developments in criminal investigation law in NSW in their proper context, it is necessary to build on McBarnet’s theory of the rhetoric of law. McBarnet’s analysis is predicated on a legal regime that is based on judge-made law, and on legislation deeply grounded in judge-made legal principles. In such a system, the pronouncements of judges are a central source of legal rhetoric, if not the definitive source. When judges make claims about the nature of the law (for
1819 McBarnet (1983: 8). For comparable comments in an Australian context, see Bronitt and McSherry (2001: 8, 95-97). 1820 Thompson (1977: 263).
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example, that it is heavily slanted towards the protection of liberties), the judge is generating the rhetoric of law.
The fundamental trend in criminal investigation law in NSW has, however, been away from a common law based system to one based on extensive legislative rules. Furthermore, many of these rules have little or no connection to traditional common law approaches. For example, the NSW Law Enforcement (Controlled Operations) Act 1997 stipulates the steps to be followed within an agency to authorise a controlled operation. No such rules are known to the common law. The same is true of Ombudsman oversight and reporting to Parliament. The legislature has even gone to great lengths to prescribe the way in which judicial officers will play their role in authorising the exercise of powers.
In that sense, judges have less ownership of criminal investigation law than they once had. They have less authority to speak about the nature of the governing system of law or its purposes. That is, they have a reduced role in producing and maintaining the rhetoric of law. This can be seen very clearly in the leading judgments impacting on criminal investigation law. In cases such as Williams,1822 and Ridgeway,1823 Australia’s leading judges have explicitly recognised that in expounding the common law they are not laying down a legislative model for the future. Rather, they are paving the way for legislative action.
As the role of judges as creators of legal rhetoric has declined, so the role of those responsible for legislation has grown. It is the politicians responsible for legislation who now, in large part, create legal rhetoric. This rhetoric is heavily oriented towards emphasising the toughness of new laws. In 1963, the acting NSW Premier’s ‘repugnance’ at the idea of telephone tapping and the Daily Telegraph’s commitment to the ‘preservation of natural rights’ reflected the kind
1821 McBarnet (1983: 166). 1822 Williams v R (1986) 161 CLR 278 at 296 per Mason and Brennan JJ and at 313 per Wilson and Dawson JJ. 1823 Ridgeway v R (1995) 184 CLR 19 at 44 per Mason CJ, Deane and Dawson JJ and at 554 per Brennan J. 396
of ‘rhetoric of justice’ described by McBarnet. By 1986, such rhetoric would have done more harm than good to the legitimacy of the elected government. Victorian Premier John Cain found this out. When he expressed concern about giving his police tapping powers, he was told to stop ‘pussyfooting around’.1824
In terms of Packer’s famous dichotomy between crime control oriented and due process oriented approaches to criminal justice,1825 much contemporary legal rhetoric emphasises crime control objectives over due process. For example, the reality of the telephone tapping legislation produced by the NSW Government was that it heavily regulated an activity that had been carried out virtually unregulated within the NSW Police for almost 20 years. There was, in truth, plenty of scope to talk about a major advance in promoting civil liberties. Yet the responsible Minister characterised the legislation in a way that has been seen so often in the last two decades:1826
The position of the New South Wales Government on law enforcement is perfectly clear. It will ensure that investigatory bodies within this State have adequate powers to pursue criminals and to protect the community from the activities of such persons. The Government’s commitment to law and order is absolute and this legislation reinforces that commitment.1827
The shift in the primary source of legal rhetoric, from judges to politicians, is also well illustrated by the heavy emphasis now paid to Parliamentary materials by courts seeking to interpret legislation. In the Fernando case that held NSW police had no power to secure blood samples from suspects under legislation then in force, Priestly JA made extensive use of Parliamentary materials. In doing so, he noted that:
1824 Age (1986: 3 May at 4). 1825 Packer (1968: ch 8). 1826 Hogg and Brown (1998: ch 1), Wood (1997: 37), chapters 5 and 7 above.
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During the 1980s there was a significant statutory shift in the conventional approach to the interpretation of statutes. In 1984, s 15AB, a new section, was inserted in the Acts Interpretation Act 1901 (Cth). In 1987 the very similar s 34 was included in the Interpretation Act of that year. These sections made clear the entitlement of a court in considering a question of disputed statutory construction to take into account materials of the kind I have been considering. Prior to these enactments many courts had taken the view that such materials should not be looked at.1828
This change in the primary source of legal rhetoric is one that some lawyers and civil libertarians have found hard to understand and accept. In my own work on the Commonwealth’s Crimes Amendment (Controlled Operations) Bill 1995, I noticed that eminent lawyers opposed to the Bill would keep going back to judicial pronouncements as some sort of ultimate authority for right and wrong in criminal investigation law. One NSW lawyer said it was ‘wholly unsatisfactory’ that the Federal Government had failed to ‘support’ the High Court.1829 A joint submission on the Bill on behalf of a range of groups including the Criminal Law Committees of the Law Council of Australia and NSW Law Society expressed dismay at the move to ‘nullify’ the High Court’s ‘stand’, which was based on ‘ancient’ expectations of police conduct.1830
At the time, I thought this was ridiculous, for a whole range of reasons. Courts have such limited policy development capacity that I saw no reason to put great store in their views. In any case, many of the quotes taken from judges were merely descriptions of the current law, not an expression of a policy view.
1827 LA v 3/199 (Second reading speech by the Attorney-General, Mr Sheahan, 12 November 1987). 1828 Fernando v Commissioner of Police (1995) 36 NSWLR 567 at 581. See Pearce and Geddes (2001: chs 2 and 3). 1829 Leis (1995: 63). 1830 The submission was put forward by Mr R Lewis on behalf of the ‘Ridgeway Coalition’: Submissions to the Senate Legal and Constitutional Legislation inquiry into the Crimes Amendment (Controlled Operations) Bill 1995 at 73. 398
Looking back, this phenomenon is easier to understand. It was not long before that Australian jurisdictions had moved away from a common law based system of criminal investigation law. Judges’ statements of law had indeed been statements of operative policy, within that system. Judges’ views were definitive, within that system. These lawyers were testing the 1995 Bill against the old legal rhetoric generated by the judges. Those facilitating Government action were focusing on the new legal rhetoric, reflected in the policy stance of the Government.
The new legal rhetoric generated by the politicians is different in substance, as well as source, to that described by McBarnet. She equates the rhetoric of law with the rhetoric of due process and fairness for the accused. She argued that this was necessary for state legitimacy. Yet in the contemporary context of concern about crime, and support for tough law and order measures, it is implausible to imagine that state legitimacy would benefit from the idea that the justice system is strongly geared to due process and the rights of the accused. Undoubtedly, some level of due process is necessary to retain public faith in state institutions; but an overly libertarian rhetoric is likely to actually undermine state legitimacy. Providing security to the community is one of the fundamental obligations of the state. Many members of the community want tough action against crime and criminals. Politicians have much to gain from generating legal rhetoric that matches those demands. With limited scope to make real inroads on crime,1831 the orientation of legal rhetoric to crime control has been of paramount importance.
Contrary to the implication of McBarnet’s work, this must always have been the case.1832 The fact that legal rhetoric incorporates a commitment to crime control is a point that has been made in the English context by McConville, Sanders and Leng.1833 Developments concerning criminal investigation law in NSW do not fit the analysis that Sanders and Young put forward in the English context, that legal
1831 See chapter 7. 1832 McConville, Sanders and Leng (1991: 180). 1833 McConville, Sanders and Leng (1991: 178-81). 399
rhetoric remains ‘largely due-process oriented’.1834 Nor does it fit their analysis that the ‘shift in rules, as well as practices, towards crime control is nevertheless faster than that of the rhetoric’.1835 As we have seen time and again, the reality of legal reform (and the use of powers) has often appeared to be more moderate in NSW than the bellicose rhetoric of law and order (for example, in the drug law enforcement context).
One important implication of the ‘law and order’ emphasis in much contemporary legal rhetoric is that it does cut against the grain of the substantive move to closer legal regulation of criminal investigation practices. This is problematic, as an apparent emphasis on law and order and crime control can encourage police to place less weight on compliance with formal legal rules, where these might conflict with the overriding aim of firm action against crime. Writing in the American context, Allen speaks of the way that community concerns about crime (which are reflected in political pronouncements) can reduce emphasis on the importance of legality by criminal justice officials. In such a climate, Allen argues, ‘the social and political environment is one increasingly unfavourable to the habits of legality’.1836 It can be added that this risk arises, even if criminal justice officials such as police are at the same time being made subject to more detailed formal legal regulation. The legal rhetoric of law and order can undermine the benefits of the substantive trend to legal regulation.1837
A second implication for theory of the ‘shifting state relations’ thesis is to highlight the weakness of both the ‘balance’ paradigm, and of the alternatives devised by academic commentators. Even in its most respectable form (that is, as a shorthand for moderation), the use of ‘balance’ presupposes an equation with two sides. As we have seen, this involves concentration on only one axis of the criminal investigation law role, concerning police powers as against suspects’ rights. The existence of alternate dimensions - government/ judiciary,
1834 Sanders and Young (2000: 755). 1835 Sanders and Young (2000: 758). 1836 Allen (1996: 27).
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government/ police, Federal/ State - shows that balancing ‘powers’ and ‘rights’ can never be the full story. There is more at stake. That is why, for all the talk of balance, the concept has so little theoretical force when it comes to understanding the process of reform. It also helps explain how the meaning of the word in debate is so pliable. It is not always clear how the balance has ‘shifted’ when a single reform may be directed at multiple sets of relations. Likewise, alternative paradigms based on the promotion of certain rights or freedoms, provide no mechanism for understanding or influencing how criminal investigation law is used in regulating relations within the state.
Any move to find an alternative paradigm to ‘balance’ needs to take into account the role of criminal investigation law as a determinant of relations within the state. As we saw in chapters 2, 3 and 5, the police/ judiciary approach to regulating criminal investigation law was manifestly flawed. The minimalist approach of the common law is simply inadequate to the complex task of regulating the investigation of crime. Police are left without proper authority to engage in necessary activity; they are also left without a framework to encourage careful, rigorous processes that give the best chance of genuinely identifying the guilty. The role of legislation in shifting state relations has been an important tool for offering at least some challenge to the police/ judicial complacency that can and has seriously undermined the quality of criminal investigation in NSW in the past.
The ‘shifting state relations’ thesis also has important policy implications. It shows how reasoned policy and reform is still possible despite the pervasive influence of law and order populism and the weakness of the civil libertarian response. If the policy space were just about a private domain of police and suspects, the prospects for well thought out reform would be more limited. However, the positive side of law and order politics is that it is accompanied by a closer interest by elected politicians in the workings of the criminal justice system. In turn, these politicians have access to a much more sophisticated policy
1837 Dixon (1997: 171, 1999a: 162-63, 1999b: 73-76). 401
development apparatus (Royal Commissions, law reform commissions, Attorney- General’s Departments) than do the courts.
As governments have looked for tools of control, they have often turned to recommendations from these sources. The recommendations thus accepted have frequently been moderate and well reasoned, in a way in which is surprising when understood against the general tenor of law and order populism. Governments have returned to apparently rejected reports when looking for ideas for action. Those of the ALRC and NSW Law Reform Commission are classic examples. The bitter resistance of police to legislative reform in the 1970s can be seen in the context of their adjustment to a fundamentally new paradigm.
The widespread adoption of law reform recommendations many years after they have been handed down highlights another important point. Long term, thoroughly researched and carefully considered law reform is not necessarily an alternative to short term, crisis driven, knee-jerk reform.1838 They may be two sides of the same coin. Employing Galliher’s terminology, a set of law reform ideas may emerge out of a structural change, for example, greater academic inquiry and the establishment of law reform agencies. However, it may take a triggering event to give the issue some focus and urgency and bring about reform.
Hogg and Brown are too pessimistic in suggesting that ‘law reform commissions, advisory bodies and research agencies’ are ‘effectively marginalised as the reform process becomes dominated by the political quick-fix’.1839 The rush to come up with ‘instant law’ may give easily digestible ideas such as law reform inquiry recommendations particular attractiveness, and an immediate opportunity to be implemented. Scandal and crisis can assist rather than impede the implementation of carefully considered reforms. Thus the panic about drug trafficking led to the setting up of Royal Commissions which adopted key recommendations of the
1838 Contrast the comments on English criminal justice policy in Bottoms and Stevenson (1992: 23). 1839 Hogg and Brown (1998: 60-87). 402
1970s law reform inquiries. The ‘crisis’ created by the Williams High Court decision brought the decade old ALRC recommendations on detention and questioning back to life. The Wood Royal Commission then revived the subsequent recommendations of the NSW Law Reform Commission. The clash and bang of criminal justice politics conceals the very real influence of sound scientific knowledge. Chan is right to say that such influence is ‘more pervasive than we realise’.1840
It is fair to say that the extensive use of the law to re-order relations within the state has contributed to an excessive focus on the ‘law’ to the exclusion of its context. The important insights in the literature about the successful implementation of law have not been fully heeded. In all the extensive debate about police powers, the question of how to make specific laws influential on the ground has received surprisingly little attention. Matters such as the importance of training, incentives to desired conduct, and monitoring and evaluation need much closer consideration by all concerned.
Concern about crime and law and order has had profound effects on the criminal justice framework, with some very real negative influences. However, it has led to the engagement of governments, which have bound themselves into increasing responsibility for the criminal investigation framework. This offers a crucial opportunity for those who see scope for improvements to make their case. For all the flaws with criminal investigations and criminal investigation law in NSW, it is no longer a closed arena. The powers and responsibilities of NSW police have received at least some of the attention they needed.
1840 Chan (1995: 23). 403
FULL ABSTRACT
Introduction
This abstract has been prepared in accordance with the University of NSW Guidelines on the Submission of Project Reports and Theses for Higher Degrees. A brief abstract of 350 words forms part of the data sheet attached to the front cover of the thesis. Abbreviations used in the text of the thesis have been carried through to this abstract.
The thesis is approximately 108,950 words in length, excluding headings, footnotes, bibliography and this abstract.
The Problem Investigated
Since 1968, a large volume of legislation has been enacted in NSW, conferring criminal investigation powers on NSW police, and regulating the exercise of those powers. The thesis examines four questions. First, what is the explanation for this legislative trend? Second, what forces shaped the content and timing of the legislation that was enacted? Third, what forces shaped the nature of the debate about criminal investigation law, both in the period of very little legislative reform from 1945 to 1968, and in the period from 1968 onwards. Fourth, what can be said about the impact of this legislation?
The thesis forms part of a recognised body of socio-legal studies, known as ‘emergence’ or ‘law making’ studies.
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Procedures Followed
A wide range of sources have been utilised to identify: the terms of criminal investigation legislation that has been proposed and enacted; the efforts made to secure or prevent the enactment of such legislation, including the arguments employed; the circumstances in which this debate has occurred; and the nature of prevailing ideas about policing, law and crime that have influenced the course of debate and reform.
These sources have included interviews with key participants in debate and in the development of reform proposals, the papers and records of such individuals, and official records held by the NSW Archives, Australian Archives, NSW Attorney- General’s Department, NSW Law Reform Commission, ALRC, and NSW Police Association.
The reports of Royal Commissions, law reform bodies, inquiries and government agencies have also been utilised, as have the journals, publications and Internet web sites of organisations representing police, lawyers, civil libertarians and others with an interest in criminal investigation law reform. Likewise, scholarly books and journal articles dealing with relevant subjects, along with Parliamentary debates, agency annual reports, reported case law, and newspaper articles, have all been used.
While NSW events (and hence NSW sources) have been the primary focus, attention has been given to developments and sources from outside NSW, both because these have impacted on events in NSW, and also for comparative purposes
The source material has been examined against the backdrop of the existing academic literature on the sociology of law and law making, the politics of criminal justice debate, and the history and sociology of policing practices. A number of key concepts from these areas of literature are employed to provide a better 405
understanding of the subject matter.
The analysis is structured to highlight the most reform influences. Each of the substantive chapters is organised around the examination of developments during a particular period of time, and/or around a particular set of reform issues or proposals.
Results and Conclusions
The major results and conclusions arrived at in the thesis are as follows.
Chapter 1: Introduction
Since 1945, police in NSW have gained many new powers. The period since 1945 has also seen the emergence of new agencies with a key role in investigating serious offences against NSW law, including the National Crime Authority and NSW Crime Commission. These agencies have their own powers.
Notwithstanding these new powers, most of the criminal investigation legislation enacted has been about regulating the conduct of law enforcement officers, and restricting the availability and use of powers. Many new kinds of accountability measure, safeguard, and restriction, have been introduced into criminal investigation law, including reporting and recording requirements, mandatory internal decision making process, and statutory reviews.
A number of theoretical concepts are central to the attempt to better understand the dynamics of legislative reform and the debate about reform. Account must be taken of both the structural foundations of law and triggering events, as well as the dynamic relationship between them (Galliher). Attention must also be given to the aggregate effect of numerous incremental changes (Tomasic). The identification of patterns is crucial, but individual actors and discontinues must be acknowledged as well (Garland). 406
Understanding dominant conceptual models of criminal justice is important (Hogg and Brown), as is understanding the significance of the language that is chosen (Rock). The interactions between symbolic and instrumental goals must be taken into account (Gusfield, Carson), with due regard to the significant symbolic elements of both criminal justice policy (Garland) and law. Finally, attention needs to be given to the complexities of legislative inactivity, its various causes, and the insights that can be gained from comparing circumstances of reform and non-reform (McManus, Dixon).
Chapter 2: The Free British Way
In 1945, and for the three decades after that, NSW police had few formal powers. Yet their actions were relatively unconstrained by law. The open-textured nature of legal restraints on police, the closed nature of policing, the practical difficulties in legally challenging police action, the malleable notion of ‘policing by consent’ (Dixon) and the complicity of courts in questionable police practices, were all among the explanations for this.
In the period from 1945 to 1965, there was very little discussion of the need to amend criminal investigation law in NSW. There were even fewer amendments, with those that were enacted being of a minor or technical nature. Examination of dominant modes of thinking of policing, law and crime provides significant insights into the explanations for minimal debate or reform.
A series of beliefs and expectations about law and policing tended to deflect consideration of, and debate about, criminal investigation law. These beliefs and expectations can collectively be termed the ‘free British way’ paradigm. The law was seen as a vital bulwark, protecting long-standing, fundamental freedoms. Accordingly, there was a reluctance to tamper with the law. The populism of the Daily Telegraph encompassed fervent opposition to new police powers. Police were expected to pursue their responsibilities as ‘citizens’ in uniform’, diminishing 407
the role that coercive powers were expected to play in the investigation of crime. The regulation of police conduct was seen as a matter for the Police Force and the courts, leaving these issues at arms length from other government agencies and parliamentarians.
Police misconduct was perceived as rare, again creating an assumption that existing frameworks governing policing, including existing laws, were adequate and appropriate in their existing form. Where misconduct did surface, the influence of the ‘rotten apple’ paradigm deflected attention from consideration of systemic problems, including the potential inadequacy of legal frameworks. Concerted efforts by the NSW Police Force to understate crime statistics underscored complacency with existing frameworks for policing, and helped keep issues of crime and policing out of the political arena.
Where there was debate about criminal investigation law, one or more of a small range of factors was usually present. Police misconduct leading to demonstrable physical harm to a person, notably bashings in custody, was more likely to lead to debate about regulating police conduct than were less demonstrable forms of misconduct, such as unlawful searches. So were grievances against police held by members of the ‘respectable classes’. Judges and magistrates were leading contributors to the limited debate about police powers, while Police Commissioners did exert influence behind the scenes in some cases.
The most extensive ‘police powers’ debate of the period from 1945 concerned roadside testing powers to identify intoxicated drivers. Police relied on their own subjective assessments of intoxication. The reliability of this evidence came under heavy challenge in the courts and the media, reflecting the fact that those subject to prosecution were often members of the middle class. Magistrates often sympathised with drivers; but themselves came under criticism for lenience. This was one reason that magistrates were at the forefront of efforts to devise a better approach to testing. Police Commissioners and the NSW Police Association took little part in the debate. 408
A number of factors helped build momentum towards the eventual enactment of breath testing powers in NSW in 1968. These included advances in the simplicity and reliability of testing, the scientific debunking of the myth that alcohol only impaired some people’s driving, and the reported success of testing in Britain and Victoria. Lingering distrust of police practices was reflected in the emphasis on the safeguards built into the testing legislation and its implementation, further reflecting the fact that members of the middle class would be among those affected.
The introduction of breath testing powers highlighted what would be a recurring irony. It is when police efforts are failing, that they gain additional powers.
Chapter 3: The Idea of Reform
Criminal investigation law was brought into the spotlight, and became the subject of an intense Australia-wide debate, as a result of a series of inquiries and reform efforts during the 1970s. The Mitchell Committee report in South Australia, the ALRC Criminal Investigation report, the Beach inquiry in Victoria, and the Lucas Committee report in Queensland were leading examples.
Many of the factors that generated reform proposals can be seen as a result of the ‘freeing up’ of social relations in Australia, like other western societies, in that period. Socially progressive causes gained much greater influence at this time. Much of the socially progressive constituency centred on the universities, from which students came forth with new ideas, and joined politics, the legal profession and academia itself. They challenged assumptions about law and policing that had previously diverted attention from the adequacy of criminal investigation laws, including faith in police, faith in courts, and the desirability of stability.
Councils for Civil Liberties offered a new forum for challenging policing practices. Marginalised groups whose interests now gained greater attention, including 409
Aboriginal persons and juveniles, were the subject of a large proportion of policing activity. Discussion of the concerns of these groups naturally raised questions about policing practice. The rotten apple paradigm was debunked, consistent with scholarly insights concerning the importance of results pressure and police culture.
When the law reform inquiries were established, a series of ideas identified with the times helped to inform their analysis. Science and technology were favoured, as were reformism, openness and a more sophisticated, theoretically informed, understanding of police misconduct.
Yet at the same time crime was rising, and confidence in the adequacy of ‘same as usual’ policing strategies was declining. There was increasing awareness that the minimalist common law model of police powers offered insufficient support to contemporary policing. Fear of crime was not the only fear of the age. Whitlamite big government and the growing power of technology led to fears of the ‘police state’. In particular, privacy considerations were receiving increasing attention.
A range of interdependent ‘actors’, ‘circumstances’ and ‘ideas’ were all central to the emergence of debate. Perceptions of rising crime (an idea) encouraged some judges (actors) to speak out about rising crime, and provided greater incentives (circumstances) for police representatives to debate police powers.
Changing demographics (circumstances) provided a pool of lawyers, civil libertarians and politicians (actors) who were more prepared than their predecessors to challenge police conduct, and in line with prevailing notions of government, to promote legislative reform and the protection of privacy (ideas). Debate was generated (triggered) by individuals who favoured reform, but an array of structural changes set these scene for these triggering events: demographic changes, police/ student conflict, academic insight into the causes of misconduct, rising crime and rising concern about crime.
One notable feature of the period to 1975 was that although police had started 410
coming into the debate, their voice was still muted.
Chapter 4: The Reality of Resistance
Intense opposition to reform of criminal investigation law emerged in the aftermath of the law reform reports of the mid-1970s. The ambitions of those seeking reform helped generate the resistance that blocked implementation. For example, there was talk of the national implications of the ALRC Criminal Investigation report, but State police who feared that the report’s recommendations would be a model for State law led the campaign against the later Federal Bill. The coupling of proposals to prosecute some officers as well as lay down new criminal investigation rules in the Beach report helped unleash a maelstrom of resistance from Victorian police.
Another obstacle in the path of the reformers was that some of the key disadvantaged groups they hoped to protect through legal rules (juveniles, Aboriginal persons) were responsible for a disproportionate amount of crime. The dual characterisation of members of these groups as disadvantaged citizens and violent criminals caused plenty of wriggling in political debate. Sections of the community seemed wary that procedural safeguards might hamper efforts to investigate and prosecute crime.
This period saw the decisive entry of police into the police powers debate, first to oppose legal regulation and later to mount proposals of their own, for enhanced powers. Police culture initially contributed to a commitment to the status quo and opposition to externally imposed reform, even where extra powers were part of the package on offer. Extra powers would initially have had little attraction in a context where policing had been relatively unconstrained by law.
Police militancy in the face of proposed legislative reform reflected both these local circumstances, and also a broader international trend towards such militancy. While the police response to early inquiries was largely reactive, by the late 1970s, 411
both Police Commissioners and police unions were formulating their own agendas for additional powers to put before the inquiries that were still on foot.
In the face of legislative inaction, the High Court led moves towards closer regulation of police conduct and exclusion of unlawfully obtained evidence. The High Court would itself help to give the recommendations of the law reform inquiries new life over the next two decades.
Chapter 5: Drug War
The use and trafficking of narcotic drugs grew dramatically in Australia from the late 1960s, nowhere more so than in NSW. While this was undoubtedly a real and pressing problem, the fears of organised drug crime and the government response in the late 1970s had all the hallmarks of a moral panic (Cohen, Hall et al). This was the context into which the questionable concept of a war on drugs (Bittner) was inserted, a concept imported from the United States. The centrepiece of the Australian response was the commissioning of a series of Royal Commissions: Moffitt, Sackville, Williams, Stewart, Costigan.
Triggers were important to the timing for the establishment of each of the Royal Commissions, which then generated much of the law reform debate. The disappearance of Donald Mackay was the classic triggering event, generating intensive media attention and public concern. Longer term underlying (structural) changes heavily influenced the way events unfolded, including the nature of the law reform debate that resulted. The decade long rise of the drug trade, the apparent immunity of the organisers of the trade from prosecution, and broader fears that drugs fuelled a permissive culture that would lead to social decay, gave the Mackay disappearance such significance. The disappearance was a tangible symbol of a much wider concern; of the structural problems that had undermined confidence in ‘business as usual’ law enforcement.
The perception that normal enforcement mechanisms were not working meant that 412
governments needed to pursue unusual or even unprecedented responses to be seen to be taking the problem seriously. The need for an exceptional response led to the establishment of the Royal Commissions. The well-resourced Royal Commissions subjected law reform issues to extensive analysis, and placed their recommendations in the public forum, outcomes that would not have followed from a police report to government.
The need for an ‘exceptional’ response to the drug problem also encouraged consideration of new powers. The need for an exceptional response encouraged the conferral of a telephone tapping regime and the establishment of federal and NSW crime commissions. Police Commissioners remained on the front foot, exerting considerable influence over the agendas of the Royal Commissions by putting forward detailed suggestions for sought after criminal investigation powers. The fact that the Royal Commissions were law enforcement bodies in their own right gave them a natural tendency to empathise with some of the arguments put forward by police.
At the same time, the Royal Commissions made some hard hitting criticisms of police, one result of which was the development of proposals for a national crimes commission. This was strongly opposed in NSW policing circles, reflecting a mix of symbolic and instrumental concerns. The creation of a crimes commission might deal the police forces and individual police an instrumental blow: the loss of interesting work, and the prestige and resources (perhaps even the opportunities for corruption) that went with that work. It was also a symbolic attack on the past performance and future status of the police forces.
Civil libertarians achieved one of their most notable victories in NSW in securing the withdrawal of proposals to give police powers to search premises without warrant. This was symptomatic of the muted implementation of the Royal Commission proposals. Telecommunications interception did not become available to NSW police until 1987, in part because of Federal/State rivalries and distrust, and many other Royal Commission recommendations concerning drug 413
enforcement powers were not taken up.
The focus of much of the debate on high level powers to deal with high level traffickers tended to distract attention from the everyday realities, in which most drug policing remained at the street level. The powers conferred to prosecute the war on drugs have not created a ‘police state’ for middle class Australians, but street level drug policing continues to be riven with abuses of power and corruption. Security and disposal of seized drugs has been a particular problem.
Chapter 6: Verbals
By the 1970s, it was almost universally acknowledged that the questioning of suspects under implicit restraint was integral to the criminal investigation process, in NSW and elsewhere. Detention and questioning by police was subject to little external constraint. From the 1940s to the 1970s, credible complaints of unlawful and improper police conduct in detaining and questioning suspects had been a recurring feature of policing in NSW (and elsewhere in Australia).
The survival of a system of institutionalised verballing owed much to the judiciary. The judiciary’s primary objectives appear to have been to ensure police were not handicapped in fighting crime, and that public confidence in police was preserved. Pursuant to these objectives, judges accepted police evidence in almost all cases, and were reluctant to uphold any rights on the part of the accused that might constrain police actions.
In 1980, a formal ‘Campaign Against Police Verbals’ was launched, with the involvement of a range of radical and reformist organisations. From the outset, the campaign faced significant obstacles. By 1980, Australian police had successfully beaten back almost every attempt to regulate the questioning of suspects. Still, there were a range of factors that lent the campaign credence. The findings of Beach, Lucas and Stewart as to the existence of verballing and the recommendations of the ALRC in favour of taping were repeatedly emphasised in 414
campaign materials. The High Court had moved to acknowledge and attempt to address the problem of verballing. The diverse and innovative tactics of the anti- verbals campaign also helped to draw attention to the problem of verballing.
Within policing circles, opposition to taping gradually broke down during the 1980s. A sophisticated system for video and audio recording of questioning was introduced in NSW in 1990. Overall, this system has significantly limited the prevalence of verballing and improved practices for questioning suspects, although there does remain potential for misuse and manipulation.
Chapter 7: Pushing Powers
In the 1980s and 1990s, numerous new powers were conferred on NSW police by legislation. Police were clearly influential in the process, but much academic commentary has oversimplified the role of police in debate. Police do have significant advantages in political debate: a highly valued and visible role in the community, almost universal police union membership, and a cultural predisposition to solidarity.
The public presentation of solidarity can obscure important internal differences. A notable example is the difference in emphasis between management police and street police (Ruess-Ianni). Police management has had a relatively greater emphasis on securing extra powers, while police unions have had a relatively greater emphasis on avoiding legislative regulation. Accordingly, senior police have more willingly accepted a powers/ regulation trade-off. Public lobbying by police can also conceal the fact that a surer route to influence is lobbying behind the scenes and that resort to public debate can highlight limits to police influence.
Nonetheless, police have been extremely influential, and this must be understood in the context of the influence of law and order politics in recent years. Law and order thinking has centred around a number of key themes (Hogg and Brown). Themes particularly indicative of the pursuit of law and order legislation have been 415
a sense of urgency, emphasis on government responsibility, and targeting of particular groups.
The idea that the government is, or should be, responsible for enforcement outcomes is one that has impacted beyond the law and order context. NSW governments have actively sought to encourage enforcement action by police, in both the roadside breath testing and domestic violence contexts.
Developments in technology have also been important to the promulgation of new police powers, for example, listening devices, the breathalyser and forensic procedures. However, there have often been long lead times between technological developments and legal change, notably in the case of telecommunications interception powers, and in some cases the rhetoric and symbolism of technological advance has outstripped the reality. The enormous hype surrounding the creation of the national DNA database has yet to be reflected in enforcement outcomes.
A number of scholarly studies have criticised the way in which the term ‘balance’ has been misused and overused in the debate about police powers (Ashworth, Sanders and Young, Dixon, Braithwaite). While this is true, the diverse ways in which ‘balance’ has been used in debate also reveals the power of rhetoric in political debate. In essence, the notion of balance is part of the dominant discourse concerning police powers. It can therefore be deployed in debate as ‘cover’ to give legitimacy to alternate ideas.
Police powers make a much smaller contribution to the successful investigation of crime than is commonly assumed (Bittner, Manning). Yet in some cases, notably random breath testing of motorists, new powers have had a substantial impact (Homel). Furthermore, the enactment of police powers can be significant for other reasons. In a law and order context, proposals for police powers can be a ‘hot potato’. Unmet police demands place pressure on government; the meeting of those demands places responsibility back with police. Adequate powers can also 416
reduce police cynicism about the law, helping to foster a greater degree of commitment to legality in police practices.
Chapter 8: Seeking Safeguards
The trend to more extensive legal regulation of police practices has been experienced in a large number of common law jurisdictions. It is notable that in Australia, unlike Britain, the courts have not formally enhanced police powers and discretions to meet the perceived necessities of criminal investigation. On the contrary, the High Court has firmly reaffirmed the limitations of the common law in a number of key cases. This has at least temporarily shaken the complacency of senior police in ‘business as usual’ processes, and created greater prospects for the acceptance of a powers/regulation trade-off.
A key feature of legislation regulating criminal investigation in NSW has been measures to more closely regulate the way that judges, magistrates and justices of the peace authorise the exercise of police powers, for example, in issuing warrants. This regulation has included limiting the categories of those who can issue warrants, spelling out decision making criteria and the decision making process, and requiring reasons for authorisation decisions to be recorded.
Criminal investigation legislation has both been influenced by, and conferred functions on, a range of new oversight bodies. In NSW, these included the Ombudsman and Privacy Commissioner. Privacy issues have received considerable attention in the formulation of legislation in recent years, in comparison to other rights and liberties. In part, this is because it is a ‘middle class’ right.
There has been an increasing emphasis on reporting and recording requirements in criminal investigation legislation. This has been part of a broader commitment to the ‘authorise and regulate’ model, that is particularly associated with the ALRC Criminal Investigation report and the NSW Law Reform Commission Detention 417
After Arrest report. This model has been strongly opposed from libertarian and crime control perspectives, but is now widely reflected in NSW criminal investigation legislation.
Developments in NSW legislation have been heavily influenced by the growing involvement of the Federal level of government in criminal justice matters. In one area, telecommunications interception, this stems directly from the Commonwealth’s constitutional powers. Elsewhere, the Commonwealth has used its bureaucratic resources and/or the offer of funding to influence the course of legislative reform at a State level. Among the States and Territories, the Commonwealth has had particularly strong links with NSW in the development of model laws. The influence of international law has been more limited but seems likely to increase in future years.
There has been considerable international work that draws together the insights offered by the literature on the relationship between legal regulation and policing practice (Dixon, Brown, Reiner, Leo). Four major lessons emerge. Nominal rights and safeguards commonly have much less impact on policing practices and effectiveness than is commonly supposed. The capacity to verify compliance with legal rules has a marked impact on compliance levels. Legislative regulation is more likely to influence practices where it is introduced into an environment where there is structural and cultural support for the reform, including training and awareness raising. Finally, and contrary to the view of some commentators (eg, McConville, Sanders and Leng) legal regulation does offer real potential to improve the rigour of criminal investigation practices.
Chapter 9: Inside the State
To a significant extent, the criminal investigation legislation that has been enacted in NSW in recent decades has been directed to adjusting relations within the state. Three major relationships have been redefined: government and judiciary, police and government, and Commonwealth/ State. Elected governments have sought to 418
create alternate lines of influence with the criminal justice system, and in doing so have opened up the criminal investigation process to greater scrutiny.
The extensive use of legislation in the criminal investigation sphere has occurred within the context of law being increasingly used in modern times as a tool of governance, rather than as a symbol of stability (Cotterrell). Notwithstanding broader trends to privatisation in the policing sphere internationally, the trend in NSW has been for governments to increasingly identify themselves with criminal justice outcomes, rather than distancing themselves.
The intervention of politicians through the enactment of legislation has also led to a significant shift in the character of ‘legal rhetoric’. McBarnet had argued that legal rhetoric emphasises rights, safeguards and due process, thereby concealing the reality of the law, which was much more oriented to securing convictions. In this model, judges have a significant role in generating legal rhetoric when expounding the law in judgments.
In more recent times, legislators have played a much greater role as creators of legal rhetoric, and much of that rhetoric has been oriented to emphasising the toughness of laws and their orientation to crime control. The NSW experience supports the contention of McConville, Sanders and Leng in the English context that legal rhetoric contains a significant emphasis on crime control.
The influence of the rhetoric of crime control and law and order has significant implications for policy. The rhetoric can encourage police to place less emphasis on compliance with legal requirements, regardless of the formal content of legal restrictions that have been enacted (Allen). One of the major challenges for law reform in future is to direct greater attention beyond the terms of the law, to the context for implementation.
419
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