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 2 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 5 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 6 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. 7 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.