THE CLIMATE FOR A ROYAL COMMISSION

The process of scandal, inquiry and reform of Police Services with which we have become familiar has tended to be a cyclical process, universally shared. The inquiry or Royal Commission that follows such a scandal provides an occasion for a valuable insight into the well being and efficiency of the Service, and most particularly into its stance on corruption, and its ability to deter and to respond to the problem.

Each revolution of the wheel, however, has the potential to cause great harm to the reputation of the Service, and to threaten destruction of the careers of able and corrupt police alike, as well as to occasion great personal harm.

The question which must be asked is whether the cycle, which is capable of being arrested, but equally capable of resuming its path in forms, and to an extent even more malignant than before, is inevitable, or whether procedures can be established to bring about permanent or at least long lasting change?

The most recent Royal Commission in this country, that conducted into the Police Service of New South Wales, commencing in 1994, might provide some answers to that question.

As with other Royal Commissions, for example the 1994 Mollen Commission of Inquiry into the allegations of Police corruption in the New York City Police Department, and the 1987 Fitzgerald Commission of Inquiry, into Possible Illegal Activities and Associated Police Misconduct within the Queensland Police Force, the New South Wales Royal Commission was established in a climate of concern as to the existence of unhealthy links between criminal elements and the police, and exposed by investigative journalists.

Inevitably, the reaction of a Service under this kind of siege has been one of stalwart denial and indignant protest, a response that more often than not has attracted the support of the political party in power, fearful of embarrassments at the hands of its Police Service. The question may be asked why should this be so?

If the Service has no problem and the allegations are misguided or mischievous, it stands to benefit, by demonstrating that to be the case, as does the Government. If, on the other hand, the concerns are genuine, the quicker they are identified and remedied the better. There is nothing more sure in life than that such concerns will worsen and eventually explode upon the public.

The powers entrusted to police to carry arms, to use force and even to take lives in exceptional circumstances, to inquire into deep and dark secrets, to eavesdrop on private conversations, and to deprive citizens of their liberty, are very substantial powers. Conversely, with their significance, they are most often exercised by the younger and less experienced officers working at street level, than they are by commanders with the wisdom of age and experience. Moreover, they are exercisable in circumstances where the opportunities for temptation and corruption are often very high. This is particularly true in relation to drug law enforcement, when the monetary stakes and risks of arrest are enormous.

Attached to those powers are considerable discretions, whether to arrest or not, whether to allow a criminal venture to continue for a while so that evidence can be gathered, to turn and use a minor participant in an undercover capacity, or to turn a blind eye to the activities of a useful informer. Sound judgment is required in the exercise of these discretions. Depending on that judgment they may properly be used in the public good, but conversely they may be used for corrupt purposes, or as an excuse when an officer is caught out.

It is inevitable that a police officer vested with such powers and discretions will be invited, in the course of his or her official duties, to act corruptly - to turn a blind eye to particular acts of criminality, or to provide a favour to a person facing a possible arrest or already charged and before the Courts. The nature of the powers and discretions that exist, the circumstances in which they come to be exercised, and the potential rewards for co-operation that arise are such that some police are bound to succumb. No Police Service can legitimately have any other expectation, but that circumstance does not of itself mean that corruption needs to become endemic or established on a systemic basis across the Service.

It is the point at which corruption passes beyond individual and isolated acts, and becomes shared between police, or becomes adopted across a significant element of the Service, as a common value, with which this paper is principally concerned. When the cycle pauses at this point, it can properly be said that law and order risks being subverted and turned into an instrument of evil rather than an instrument for the protection of the community. No longer can a Police Service in that position claim to be a legitimate part of the democratic structure. It has become a law unto itself.

It was this point which had been reached with sections of the NYPD when the Mollen spotlight was shone upon them. In the 1970s, the Knapp Commission had discovered widespread corruption of the systemic or institutionalised kind, in which a blind eye was turned to the breach of a wide variety of laws at a local level, in return for payments shared on a formalised basis between patrol officers, detectives, supervisors and commanders. A concentrated effort to break up this form of local “pad corruption” followed, under the guidance of Commissioner Patrick Murphy, but it eventually failed because no mechanism was implemented to sustain the integrity controls and new code of ethics that were introduced.

By 1994, the Mollen Commission of Inquiry found a new and more insidious form of corruption infecting parts of the city, particularly in high crime precincts with an active narcotics trade. Rather than police taking money to accommodate criminals by closing their eyes to illegal activities, they were now seen as acting as criminals themselves, especially in connection with the drug trade. This was not corruption of a fortuitous, opportunistic nature, or arising out of human frailty. Rather it was the result of created opportunities. It involved a premeditated and organised group effort at Precinct level.

Similarly, it was the position reached in Queensland in relation to those elements of the Service, working particularly in the enforcement of licensing and vice laws, with connections reaching to the top of the Service, that became exposed by the Fitzgerald inquiry as deeply corrupted. That Commission of Inquiry only became possible because of current affairs programmes such as “The Moonlight State”, which eventually galvanised a community, cynical of its police Service, after years of inaction into a response.

So it was in New South Wales that concerted media pressure, resulted in the more widely focussed 1994 Royal Commission. It was established with specific terms to inquire, inter alia into the nature and extent of corruption within the Service, particularly of an entrenched or systemic kind, and into the activities of the Professional Responsibility and Internal Affairs branches in dealing with the problems of corruption and internal investigations.

By that time, at least in certain circles of the media, and among those practising at the criminal bar, there was a strongly held belief as to the existence of strong links between crime figures and sections of the Service, and as to the institutional practice of, as well as tolerance for, those forms of process corruption that involved the fabrication of evidence, and the extraction of non voluntary confessions, or otherwise involved a perversion of the criminal justice system - not only to secure convictions but, where the opportunity arose, to ensure that the chosen were spared from criminal prosecution.

The criticisms had not been ignored by the Police Service. Commissioner Avery targeted the concentration of power within the Criminal Investigation Branch by a policy of devolution and regionalisation, and by the establishment of an Office of Professional Responsibility with a brief to develop anti corruption measures and educational programmes, in addition to its responsibility for reactive internal investigations.

The motives were right, and the commitment was there, but as events turned out, there was little change. The reasons for that require exploration.

THE EMERGENCE OF CORRUPTION

In order to develop corruption prevention or control strategies for any Police Service, it is essential first to understand the local climate, and the reasons why corruption has emerged. For the most part the reasons are common to policing generally, but their significance, and the precise guise in which they emerge, do differ from Service to Service. What they do share in common is the fact that corruption does not emerge suddenly. By its nature it is spawned in stealth, and only grows in a climate in which it is comfortable.

In New South Wales, the forms of corruption discovered were those that might have been expected. They included the receipt of bribes; the protection and franchising of gaming interests, drug dealers and others; the elimination of competitors of favoured drug cartels and gaming establishments; the theft of money and of drugs found during the execution of search warrants, and the recycling of the latter; the leaking of confidential information and warnings of pending police activity to persons under investigation; extortion and shakedowns; fraudulent misappropriation of allowances; the assault and mistreatment of civilians; compromise of prosecutions; insurance fraud; recreational substance abuse; interference with internal investigations; and process corruption in its many forms.

The practices uncovered are well known and do not require greater amplification. What was, however, important was that they were not confined to individuals, but were found to have been widely shared in some squads or localities, and developed to an art form.

The emergence of this state of affairs was assessed by the Royal Commission to have been attributable, principally, to the following circumstances:

Adoption of a Crime Control Model of Policing

There had been long term tolerance in New South Wales of victimless crime in the form of SP betting, gaming, vice and unlicensed sales of liquor. The justification for such tolerance, and the willingness of police to accept payments for turning a blind eye, was that by allowing a chosen few to continue such activities, they could be kept within acceptable limits. Further, it was assumed that they caused no great harm, in a city the size of Sydney, for which a reputation for a degree of raciness and character did no harm.

This model of policing conveniently overlooks the compromise of individual integrity, and the cynicism it breeds at all levels. Officers who see crime untouched, or who are thwarted from targeting certain areas, naturally assume the worst in their commanders, and become reluctant to report corruption. The message that goes out is simple and obvious - protection can be secured, and it is dangerous to question it. Moreover, it provides the perfect environment for the hard officer, that is the officer who is knowledgeable in the ways of the city, who fraternises with organised crime figures, who uses those connections to provide protection to some and to arrest competitors or those who step too far out of line, thereby profiting personally through bribes and promotion, and who builds a network of power and influence. Perversely, such officers have in the past often been treated as role models.

Dumping Grounds

A circumstance that also emerged within the NYCPD was the tendency to create dumping grounds for the misfits, the malcontents, and the incompetent or less disciplined officers, in high corruption areas, and then to use them to blood trainees as quickly as possible into the hard realities of policing. Inevitably, police who believed that they have been dumped in such a location will develop a perverted pride in their unsavoury reputation, and act it out.

Young officers will invariably be tested out in such an environment for their preparedness to succumb to temptation, and to support the culture of loyalty to their colleagues.

Preservation of the Reputation of the Service

Another circumstance similarly shared with the NYCPD was an institutional pressure to suppress, or contain, the disclosure of corruption in the belief that this was in the best interests of the Service so far as its reputation and morale were concerned. A poor external reputation, so it is believed, will worry the public, reduce its co-operation and trust, and empower criminals.

Institutional suppression of the problem is an inevitable recipe for collapse of command responsibility for the maintenance of integrity, and for reinforcement of a “them and us” culture that encourages a defensive mentality. It sends a very powerful message to the ranks not only that the rhetoric to which they are exposed in this respect is empty, but that the opposite is what is truly expected.

It is an attitude that needs to be stood on its head, but it is also one that requires a degree of public education. The Service, the media, and politicians need to be convinced that the uncovering of corruption by the Service, is not necessarily evidence of bad management or of integrity problems. Rather, it can be seen as evidence that the system is working, and that there is a brake being applied to the inevitable problems that would otherwise fester and multiply before the inevitable scandal broke.

The Police Culture and its Code of Silence

Woven in and around these problems has been the culture that is so much part of any Police Service. It is inevitable that it develop within any group that faces the dangers and difficulties of policing. It is a vocation in which its members come to socialise and depend on each other both on and off the job. It is one in which in times of crisis, heavy reliance needs to be placed on the loyalty and immediate response of fellow officers. Many of the work experiences cannot readily be shared with outsiders, and tension is often broken in ways that might not otherwise be seen to be politically correct.

In dealing with criminals, and the less savoury elements of society, friendship, respect and courtesy are not usually returned and it is easy to view the environment as hostile. It is also easy for police to feel that the value of their work is not appreciated by the public and that the latter are far too ready to complain about minor matters. Inevitably, in these circumstances police will band together, and develop an intense group loyalty. This loyalty is entirely positive if employed in the interests of legitimate policing, but it can easily be distorted, when called in aid by the corrupt, as was seen to have occurred in New South Wales, and in Queensland.

The code which is part of the police culture has been shared by the honest and corrupt alike, and it is one that has to be targeted as vigorously as any other aspect in the reform process, because:
· the notion that loyalty to colleagues is more important than loyalty to the Service is not overlooked by the corrupt or those susceptible to corruption, and can only give them confidence;
· silence, or active interference with internal investigations, renders the task of those undertaking such inquiries next to impossible;
· ultimately, it taints the reputation of all and risks jeopardising the safety of an honest officer who comes into contact with a criminal who has been stood over, or let down, by a corrupt member of the Service one time too many;
· it breeds a kind of cynicism, a feeling of disempowerment, and an erosion of pride, in those honest police who despise the corrupt members of the Service and silently hope they could be removed from their ranks.

Process Corruption

The inquiry revealed that, over the years, process corruption had been developed into an art form by some sections of the Service, notwithstanding strenuous attempts by the criminal bar to challenge police verbals, the planting of evidence and induced confessions. In part they were aided by a degree of judicial naivety in not waking up earlier to these practices, even though there were some guideline decisions preventing, for example, the tender of unsigned records of interview, and concentrating greater attention on the voluntariness of confessions and on the lawful collection of evidence.

The circumstances that allowed process corruption to develop are complex, and its study is complicated by the fact that often the truly corrupt rely upon the more altruistic reasons for its adoption, as an excuse or mask for their venality. In its various forms it tends to be explained by reference to:
· the inadequacies of the judicial system and the frustration of honest police trying to lock up those who they know are guilty of crime;
· the need to even the odds in a fight against criminals who are not constrained by any code or rules other than those they set for themselves;
· the “taxation” of criminals, particularly drug dealers, who might otherwise escape justice, or receive a penalty that is seen to be disproportionately lenient; and
· the message given by Commanders that high arrest rates are expected, and that performance in this respect is likely to be better recognised and rewarded than any display of integrity.

While the superficial attraction of some of these arguments cannot be ignored, the reality is that as often as process corruption has been the result of “honourable” motives, it has also been engendered by black motives referable to opportunistic theft, the elimination of rivals at the behest of a protected criminal, self advancement in securing promotion, thrill seeking, and simple laziness or unwillingness to do the hard work required for an ethical investigation. Whatever the motivation, experience shows that there is even greater reluctance by individual officers to reveal this form of corruption because of the numbers of persons potentially involved, and its acceptance as a reality of policing.

The problems that have emerged from this form of conduct, most of which have probably been unappreciated by those who have resorted to it, are manifold:
· an officer who has become involved in any form of process corruption is potentially compromised for all time. Not only is that officer vulnerable to pressure from other police to remain silent, but he or she has begun to learn the art of lying and covering up, and to see the ease with which that can be practised;
· the “taxation” of drugs or money from criminals can soon become a more general practice once the taste for extra “earnings” is obtained. The practices learned, and the awareness acquired that few if any members of the Service let alone criminals are likely to complain, are not easily ignored; and
· the opportunities offered can be used by the most experienced and venal officers to build a substantial power base and reputation that is hard to dent.

Very often it was found that a willingness to participate in this form of conduct was regarded as a rite of passage, and as the means by which ambitious young officers could attach their stars to those within the powerful cliques which had formed within the Service, and who were able to influence career paths and promotional opportunities. The disillusionment and frustration of those who remained outside these circles was palpable, and their operational careers were inevitably limited.

The ball is passed on

A particularly disturbing feature emerged in the form of evidence from a number of officers that having been recruited into corrupt practices in their early years, they expected that on attaining Commissioned rank, they would by and large leave such practices behind.

Their understanding was that they should allow others to reap their share of corrupt rewards, that they should not be too anxious to detect or target them, and that they should only respond, (and then somewhat savagely) when someone was caught out in corrupt conduct that could not be covered up.

It is the presence of this feature within a Police Service that most clearly justifies the tag entrenched, or systemic, and which makes the fight against corruption from within so difficult. It represents a double standard that creates an impossible position for young police. It is a feature which most encourages the inimical aspects of the police culture - the unwillingness to report misconduct, the fear of institutional payback for speaking out, the confidence that other police will back up or at least tolerate the corrupt, and the development of a misplaced group loyalty.

Inadequacies of the system for Internal Investigations

It cannot be gainsaid that virtually every Police Service in the world has had difficulty in establishing an entirely satisfactory or effective system for internal investigations. It similarly cannot be gainsaid that every Police Service must retain a real role in policing itself. To pass the problem entirely to an external body is only to guarantee disaster. Absent responsibility, vigilance and pride in the job will collapse.

The New South Wales Police Service was no exception in the deficiencies which were exposed. Notwithstanding the dedicated efforts of many who were posted to work in Internal Affairs or in the area of Professional Responsibility, the system was found to be slow, inflexible, insufficiently responsive and lacking in credibility.

Among the problems uncovered, some of which were inherent to any system of internal investigations, and others of which had more of a local basis, were:
· the notion of police investigating police - a concept which runs headlong into the adverse aspects of the police culture, embracing as it does a traditional reluctance to inform on close associates, and the fear of harassment and of institutional payback;
· the reactive focus of the complaints system on single instances of misconduct, which tended to conceal the discovery of links and patterns indicative of organised corruption, and overlooked the broader management and intelligence considerations indicative of more widespread corruption as well as the opportunities for early remedial intervention;
· the highly labour intensive, technical and dilatory nature of the complaint procedures which led many officers to resign the Service with stress related conditions referrable to the time taken for the resolution of relatively simple matters;
· the failure to utilise financial and intelligence analysis and covert operations including the roll over of individual officers able to expose a wider net of corruption(because of the perceived need to immediately prosecute or discipline any individual caught out in corruption);
· the concentration on an adversarial complaint system in which a punitive, rather than a remedial approach inhibited police from admitting to mistakes, and encouraged a culture of group cover up;
· the limited resources that had been given to the Professional Responsibility Command, and the downgraded, unpopular status of office within that command, in some quarters regarded as a retirement haven for the near retired, or for those who do not otherwise fit the mould, or alternatively as a mere stepping stone to promotion (without commitment to the job);
· an inherent bias in investigations as the result of which the Service was seen to fail to carry out impartial investigations, or to pursue allegations with the same rigour seen in ordinary criminal inquiries (it often seemingly being the case that the inquiry was directed towards finding justification for the officer’s conduct, rather than matters which might corroborate the complaint);
· lack of security in relation to corruption investigations, with information and warnings being promptly passed on to police under investigation. The expression “whale in the bay” became part of the language of the Service, being understood as an alert to the existence of an IA inquiry.
· the use of ineffective investigative techniques, for example the release of details of the complaint followed by the issue of directive memoranda calling for an explanation in writing, which allowed groups of police under investigation to be forewarned of the inquiry, and to manufacture a watertight defence in collaboration;
· the use of an investigation methodology which frequently began and ended with the officer’s denial of the allegations, on the basis that faced with such a response, the true facts could not be determined, an investigative approach which would rarely terminate a conventional criminal inquiry; but which allowed corrupt police to return to duty with their reputations enhanced either as “untouchables” or as effective police who were hurting criminals, and on that account, attracting complaints; and
· the lack of protection given to internal informants.

BLUEPRINT FOR A ROYAL COMMISSION

The decision to appoint a Royal Commission should not be taken lightly. If it is to be conducted effectively, it will require time and commitment, and it will be expensive. It will involve a substantial suspension of individual rights, and often require a preparedness to prefer the acquisition of intelligence or knowledge to the collection of evidence that can be used in a criminal prosecution. There may be unintentional damage to careers or reputations by association, and there needs to be a preparedness on the part of the government to allow the Service to bleed, in a very public way, before it begins to reform itself.

In New South Wales the Royal Commission was fortunate to receive the full support of the government and the media, as well as that of other law enforcement agencies, both at a state and Federal level, for whom there were tangible benefits in reversing the problems of the past. If a Commission of Inquiry of this kind is to be established, as a temporary institution, it has to be equipped with the powers, and to be resourced, so as to get into the heart of the problem quickly. Unless it has that guarantee and the time needed, corrupt elements will simply shut up shop and wait for it to go away. The New South Wales experience revealed that attention must be given to the following aspects:

Terms of Reference

These need to be settled with care so as to ensure that the relevant inquiries can be conducted, without the Commission being caught up in litigation, while its activities are challenged in the Courts.

Powers

Legislation will normally be necessary to confer coercive powers to carry out search and seizure operations, to employ listening devices, to intercept telecommunications, to issue notices for the production of information and documents, and to require evidence to be given notwithstanding the possibility of self incrimination and derivative use.

These powers will need to be reinforced, as they were in the case of the Royal Commission by statutory offences for non compliance, and obstruction of the Commission. Additionally to the specific offences, the Commission needs powers to refer witnesses who refuse to give evidence, to a Court for punishment for contempt.

Memoranda of understanding will need to be established with the Service under investigation and external law enforcement agencies, the Taxation Office, financial reporting agencies, Casino Control Boards, Totalisator Agency Boards, Telecommunications Companies, Customs, Immigration, Road Traffic and Licensing authorities, and a host of other agencies within the government and private sector, including banks and financial institutions, so that information concerning movements, associations, financial transactions and personal details can be readily accessed. It is only upon the basis of this information that intelligence and financial profiles can be built up that will establish associations and the presence of means that are not explicable absent corruption or criminal activity.

In some instances, eg. the Police Service itself, access needs to be achieved by direct electronic link into its systems. In other instances separate arrangements can be made. Where electronic access is secured this is best arranged through password protected stand alone terminals, so as to block access or hacking to the main IT system of the Commission.

History has shown that organised crime can effectively be attacked through its pocket, and particularly through income tax and racketeering laws. So it is with serious police corruption, it often being better that the trail start from organised crime connections and work backwards to those police who are on their payroll.

In some instances, access to the information needed will depend upon legislative amendment to overcome secrecy provisions and to impose corresponding confidentiality obligations upon the Royal Commission.

Liaison with the Police Service, in the present instance, was arranged through a specially established Royal Commission liaison unit, whose staff were selected for their integrity, subjected to confidentiality arrangements and freed from Service obligations to report to the Police Commissioner or to superior officers, on any matters of misconduct by other police that came to their notice in the course of their duties, or otherwise to report on their activities. The existence of such a unit is valuable in searching for and physically obtaining Service documents that may otherwise be unprocurable.

Secrecy provisions, immunity from civil suit in relation to matters undertaken bona fide, and procedures for formal dissemination to other law enforcement agencies and revenue authorities, pursuant to certificate of the Royal Commissioner, will be necessary, and will need to be secured by the enabling legislation.

Staff

It goes without saying that the level of skill and integrity of a Royal Commission staff will determine its successes. Recruitment and positive vetting are essential.

In New South Wales the Commission worked under a hierarchy as follows:

The role of Senior Counsel Assisting as tactician, overall co-ordinator of investigations and arbiter as to priorities for surveillance and analytical services, was critical. In addition, his presence enabled the Royal Commissioner to remain independent of the day to day investigative work.

The role of Chief Investigator was also important in acting as an adviser to Counsel Assisting and team leaders, in investigative techniques and opportunities, and in ensuring the availability of the surveillance and investigative staff needed.

The teams worked separately, save where there was some cross over involved, or where a particular operation required additional resources. The investigators were all recruited from external law enforcement agencies, being seconded from their present agencies for the term of the Commission.

Essential to operations of a Royal Commission is a comprehensive IT program, supported by an IT team. Considerable security is needed to ensure lawful holding of Listening Device and Telephone Intercept product, as well as security of intelligence and operational running sheets which will have to be confined, on a needs to know basis, to the team working on the reference.

A significant Registry capacity is required to receive, record and electronically record the documents that are received from external sources, or generated as exhibits. Without a sophisticated system of this kind, the use of such materials will depend on memory or “serendipity”, the latter having been acknowledged in a public hearing of the Commission as the foundation of the former intelligence data base for those involved in child sexual abuse.

Additionally, it will be advisable to employ a suitably qualified officer to act in a security and counter intelligence capacity so as to ensure the early detection of any signs of penetration of the premises, of the IT system or of operations, and of any possible security lapse that might be noticed and used by outsiders. Upon the strength of security depend not only the success of investigations, but the lives of those working undercover.

Operations

The Royal Commission differed from many similar inquiries which took a historic approach reviewing past events and procedures. The decision was made that unless serving police and criminals could be compromised in current activities, and then persuaded to assist the Commission in an undercover capacity, or at least in the supply of information, there was little hope in penetrating the code of silence.

So it was that the Commission engaged in proactive covert inquiries, heavily dependent on physical and electronic surveillance. These were directed at suspect areas, such as Kings Cross, which had always been the haunt of organised crime figures, as well as a substantial outlet for the drug trade through the sex shops, brothels and clubs for which it is notorious.

Having trapped one such officer who was persuaded to roll over, and work in a covert capacity for the Commission for an extended period, the net of co-operating police was progressively widened. The eventual public exposure of this witness in public hearings, while bringing that phase of operations to an end, was designed to unsettle other areas of the Service upon which the Commission was working.

The operational methods used in relation to Kings Cross were replicated in other areas, with similar results. Surprisingly, notwithstanding the knowledge, which might have been assumed to detectives working in criminal investigations, concerning the use of physical and electronic surveillance, they continued to meet and either to engage in continuing acts of corruption, or to discuss defensive techniques. This was either a sign of confidence that they were untouchable, or of a concern on their part to cover up their tracks. Either way they remained open to exposure. Each approach, I suggest, was consistent with a reflex response born out of the code of silence. What was new and unfathomable and hence unsettling, was the roll over of hard and experienced officers.

As observed earlier, the Commission also worked backwards from criminals, several of whom were persuaded to co-operate, and from financial analysis that threw up signs of wealth that could not have been obtained lawfully.

An investigative matter that is of significance relates to the need for a Commission of this kind to have authority to conduct controlled undercover operations that might have otherwise involved its staff, or those recruited to work for it, in criminal activities. As can be appreciated, absent a proper legislative basis for such operations, difficulties of a real kind, as well as conflicts of interest can arise if members of the Service were accidentally to come across such conduct, and to exercise normal police powers.

Necessarily, if roll over witnesses are to be used, the Commission must have the backing of the Executive government to offer undertakings not to use evidence gathered with their assistance, against them, or to give immunities from prosecution. In extreme cases as in Hong Kong, a general amnesty may have to be offered in return for full and frank disclosure of information.

In New South Wales a limited amnesty (not extended to serious crimes of violence or sexual assault of children) was offered, conditional upon full co-operation, frank and truthful disclosure, and resignation with loss of all but accrued benefits.

The success of such an offer will depend upon the strength of the code of silence, the potential financial consequences to an amnesty applicant in terms of loss of benefits and exposure to amended income tax assessments for undisclosed earnings from corrupt activities, and the assessment that some are likely to make that it is better to wait until caught, in the expectation that similar arrangements can be negotiated if significant or new information is then volunteered.

These are real considerations which need to be taken into account by any Inquiry considering an amnesty. Such an offer is an exceptional step, and will only work if it is truly of benefit to past offenders, such as was the case with the Truth Commission in South Africa, and with the Hong Kong Police Service, which permitted co-operating police to continue in office with the page closed on disclosed corrupt activities.

Moreover, whether the approach pursued is that of amnesty or undertaking and immunity, the Commission and the Executive government must be prepared to take, and to justify the somewhat bold course of placing public disclosure and the gathering of knowledge ahead of and in many instances, at the expense of prosecution. Absent that value judgment, which may not be readily understood by the media and the public, there cannot be a reliable platform upon which the Service can be rebuilt.

Because of the risk of suicide of officers caught out in this kind of inquiry, and because of the need for considerable personal support of those working in stressful and dangerous undercover activities, a Commission will be well advised to have on staff a psychologist with particular experience in dealing with police as well as crisis links to a group of psychiatrists. The need for such a resource should not be overlooked, nor should the stresses involved be underestimated.

Public Hearings

Essential for an Inquiry of this kind is the public exposure of the results of its inquiries. Absent that exposure, it is impossible to gain the confidence of the public, or the constant flow of intelligence which is the lifeblood of a Royal Commission.

To secure this, the Commission constructed a custom built hearing room with modern technology including real time transcript, video screens for the display of the results of covert operations and of documents scanned onto the hearing room system, and the equipment needed to receive evidence through video conferencing or from a remote location.

Two necessary adjuncts require mention. First, the employment of a Media Liaison/Public Relations officer is essential to promote the flow of information, and to control suppression orders in relation to names or details that need to be confined to the hearing room. Secondly, a Commission will require a suitable witness protection programme, and a capacity to access such legislation as exists in relation to the alteration of identities. As those who have been concerned with witness protection arrangements know all too well, they require extensive planning and resources and can be very expensive. Unless properly arranged they can be the cause of considerable resentment and unhappiness on the part of the witness and/or family. They can undermine a Royal Commission very quickly as the media are not slow to pick up on problems of this kind. Disinformation can also be expected from those who wish to work against theinquiry, and that will inevitably involve casting doubt upon the arrangements made for witnesses and upon the effectiveness of amnesties or undertakings.

Continued Inquiries

It is also essential that there be a follow up for an Commission of this kind, otherwise there is every risk of business resuming as usual. In New South Wales, there were a number of investigations that could not be completed in time, as well as a substantial volume of potentially useful intelligence available. The Commission was able to pass the results of its activities and its intelligence holdings on to the Police Integrity Commission later mentioned.

Absent that option there could have been considerable problems, operationally and in terms of personal security, in passing the materials back to the Service. The alternative option of destruction of the records, even if permitted under archival laws, would involve an unacceptable waste of valuable information.

Another matter which became readily apparent was the need to apply considerable resources to wind up the Commission, not only to marshal the material in a way that ensured its future retrieval, but also to comply with the laws relating to listening device and telephone intercept materials and to prepare prosecution briefs for those cases that were to follow that path. A Royal Commission follow up team will be needed for this purpose, including both lawyers and investigators.

A Reflection

As can be seen from the foregoing, the Royal Commission in New South Wales was established, and conducted, as a fully functioning criminal investigation unit, combined with a traditional inquiry at which evidence was led through witnesses, and physical exhibits were tendered by Counsel in a formal hearing presided over by the Royal Commissioner. So conducted, the hearing phase approximated a normal hearing of a judicial kind, in which those police or other witnesses who were called to give evidence were given advance warning that they were under adverse notice (although without detailed particulars) and were entitled to be legally represented. They were free to offer such evidence or explanation as they wished, they had a limited right to cross examine their accusers, and they had the chance to make formal submissions concerning any matter that might have led to an adverse finding.

As a consequence of the far reaching powers and the structure required for a wide reaching inquiry into corruption, the establishment of a Royal Commission should be preserved for those occasions where there is a clear justification for it. The undertaking involved is considerable and the suspension of individual rights significant. Unless properly empowered and resourced the failure of any such inquiry will be guaranteed, and even greater harm will be done than might otherwise have occurred. It follows that if it is to be undertaken, and if the cycle of corruption is to be halted to any real extent, then it must be done properly.

Unless the time frame offered, and the budget available, permits adequate planning and the creation of a capacity sufficient to meet the exigencies of the investigation, then I would caution that a Commission of Inquiry not be attempted.

THE WAY AHEAD

In its final Report, the Royal Commission made recommendations for a wide reaching reform of the Service, ranging from new procedures for recruitment, promotions, operational measures, internal investigations and external oversight. No single approach will ever cure corruption within a Police Service once it is entrenched to any degree. Nor can an Internal Affairs branch, or an external oversight agency, however committed or effective, provide the solution by itself. At best such a body can operate as a watchdog or safety net. What is required, is a comprehensive plan in which:
· efficiency and integrity are properly recognised;
· ethics are taught and reinforced at all levels of service;
· promotion is merit and integrity based;
· proper opportunity is provided for skill enhancement and advancement within the Service;
· resources, powers and training are provided that permit of ethical evidence based investigations;
· operational procedures are laid down that are workable and reviewable;
· a proper balance is struck between managerial/remedial intervention for minor infractions and prosecution for corrupt conduct;
· local commanders assume a real responsibility for the performance and integrity of officers under their command;
· effective and responsible first line supervision is provided;
· power exists for the prompt removal of those officers for whom the Commissioner has legitimate cause for a lack of confidence in their integrity;
· police are appropriately remunerated according to skills possessed and duties performed;
· internal witnesses are properly protected in their office and person;
· an effective Office of Internal Affairs is established, attachment to which is seen as a positive career move;
· effective external oversight is available through a specifically tasked body;
· activities likely to lead on to corrupt practices and loss of professionalism, such as substance abuse, manipulation of expenses, non compliance with informant management plans, stereotype performance evaluations, are specifically targeted;
· there is acceptance, across the Service, that integrity matters and that corruption is a problem for all of its members.

Without seeking to diminish the significance of each of those elements for a comprehensive plan that is designed to promote policing as a calling dependent on integrity and professionalism, some of more immediate relevance may be singled out for greater attention.

Career Development

Among the matters recommended by the Royal Commission was the need for raising recruitment standards and entry age, so as to meet the kind of exposure which, in the past, led astray many young police of limited education and maturity. Considerable strength of character and confidence, of the kind that can only be gained by some experience outside a disciplined service, and which comes with maturity, is needed to resist the inducements of older and more senior officers bent on securing participation in, or at least tacit tolerance of their corrupt activities. This can only be achieved if, in addition to recruitment policies that depend on suitability and maturity for the job, there is a sound recruitment training, and a continuing development program that combines a academic input from a Police Academy that has a university link, as well as practical training from police instructors who have demonstrated integrity and who have earned respect.

Similarly, the Service should demonstrate through an assessment centre process, or an equivalent procedure of the kind used in modern commercial institutions, that promotion is to be earned through merit and integrity. Some resentment can be expected from officers, who expected promotion through seniority alone, when they are passed over. Time will, however, cure that, and a Service can only grow in stature and performance if young and able officers are able to advance quickly, although commensurately with their skills and experience.

For those officers, who possess and wish to develop special skills in forensic fields and information technology, where technical advances are rapid and ever increasing specialisation is required, incentives are required for their retention, which may go beyond mere promotion.

An allied consideration which the Royal Commission wished to encourage was lateral entry and transfer between Police Services. This model, which is seen in the United Kingdom, expands career opportunities and has the advantage of bringing in new ideas and attitudes, of breaking up cliques, and of placing in positions of authority officers who are free from insidious earlier connections with corrupt police still in the Service.

Unless policing can be elevated, from a narrow discipline driven Service, into an organisation driven by modern management approaches, in which rank is retained for proper purposes, then it cannot expect to attract the features of professionalism that emphasise integrity and generate respect.

The Role of Police Associations

The Police Associations have a critical role to play in encouraging serving police to fight corruption, in co-operating in the prosecution of the corrupt, and in converting the police culture into one that is wholly positive. Unless their assistance can be harnessed a significant obstacle to reform remains. Such role can be exercised without surrender of their equally important industrial function.

Too often in the past, they seem to have placed the strident defence of police, later shown to be absolutely corrupt, ahead of the education of their members about the dangers of corruption and serious misconduct, and to have turned their backs upon internal informants, a response that has only strengthened the instinct of police to unite in self protection.

This is not to deny the proper role of the Associations in defending members who may have been unfairly treated, or to have been the subject of a wrong decision. It is only to emphasise the positive role of the Associations in ensuring safety and integrity in the workplace, and in the support of honest police faced with the unenviable job of exposing the rotten apples.

Investigative Integrity

The Royal Commission recommended the adoption of a number of significant measures designed to improve the quality of investigations, and to reduce the opportunity for challenges of the kind that tend to undermine public confidence in the police. They have by and large been adopted either by virtue of statutory enactment and/or the issue of operational instructions, including:
· the adoption of PACE type legislation to regulate the interview process, under which the police have a reasonable opportunity to complete their investigations and the rights of suspects or prisoners are preserved (Crimes Act 1900 (NSW) Part 10A )
· the use of ERISP or audio recordings of confessions (Crimes Act S424A) and of dealings between police and motorists;
· the video recording of the execution of search warrants;
· the adoption of procedures for controlled operations in which police are permitted, for investigative purposes and subject to strict control, to carry out activities in the course of undercover activities which might otherwise constitute a breach of the criminal law (Law Enforcement (Controlled Operations) Act 1997;
· the development of revised and tight procedures for criminal informant management; and
· the review of failed prosecutions of any significant kind.

Commissioner’s Confidence

The Royal Commission considered it essential that the Police Commissioner have the power to dismiss an officer in whom confidence has been lost. It was intended that this occur only after appropriate investigation in which the officer had a fair chance to be heard, and to be subject to limited review on administrative law grounds.

Legislation along these lines has been introduced (Police Service Act 1900(NSW) Part 9 Div 1B) and a number of officers have had their careers terminated as the result of an exercise of this power. This recommendation was perhaps the most controversial of all of the recommendations and attracted stern resistance from the Police Association.

A combination of Internal and External Vigilance

The approach taken by the Royal Commission was to establish a combination of internal and external supervision, comprising four independent components:
· an enhanced Office of Internal Affairs;
· an external Police Integrity Commission
· an Inspector General
· the Ombudsman

The Office of Internal Affairs

It is essential that the Service retain a real role in self regulation. That is an indicator of a profession, and it that ensures that the Service continues to own the problem. What was recommended, however, was the creation of an office staffed with able and respected officers, resourced with its own covert and intelligence capacity, authorised to conduct proactive and controlled operations, including integrity and substance abuse testing, and not confined to narrow complaint reactive investigations.

Associated with this approach necessarily is a change to a more remedial form of discipline, in which minor or technical breaches of discipline and matters of customer service can be addressed by local managers, without the need for the lengthy and confrontational disciplinary proceedings that used to be the norm. An officer caught up in any such procedure was inevitably left resentful, and damaged in circumstances where a remedial approach would have preserved, and most probably improved, future performance.

The line between disciplinary infractions and corrupt conduct can be, at times, uncertain. This makes all the more important the need for the Office of Internal Affairs to be staffed by officers with broad experience, common sense and management skills. It also calls for the establishment of good communications between the Office and Local Commanders. Subject to available intelligence, and the need for security in significant operations, there needs to be a real degree of communication and trust between the Office and those commanders, who are often best placed to know the officer in question and to pick up the tell tale signs of unethical or corrupt performance.

To freeze local commanders out of the circuit is to deny a valuable resource, and to dilute the acceptance of personal responsibility. If they cannot know what is taking place, or contribute to the solution of the problem, they cannot be criticised fairly for its existence.

So structured and freed of the time consuming responsibility for matters better left to local management, the Office of Internal Affairs is able to go about its real work both alone, and in partnership with the external Police Integrity Commission. Integral to its effectiveness is the Internal Witness Support Unit which has progressively addressed the problems of the past in providing an appropriate line of support for and assistance to internal witnesses.

The Police Integrity Commission

A key recommendation of the Royal Commission was the formation of an external, focussed and highly trained agency, the Police Integrity Commission (PIC) which would be able to build on its work, take the lead in key matters requiring the investigation of serious corruption, and operate in tandem with the Office of Internal Affairs and with the New South Wales Crime Commission, as appropriate.

This model permits direct involvement of the external agency at the coal face, facilitates the assembly of intelligence and informants, and allows greater awareness of problem areas and of trends in corrupt practices. It is one in which the external agency combines direct and aggressive investigation of the most serious matters, with oversight and review of internal police investigations. It preserves for the Police Service a real role in self regulation, and it is the one that was assessed as most likely to promote public confidence at a time when that confidence had been sorely tested.

The powers vested in this body, currently headed by a District Court Judge on secondment, are similar to those of a Royal Commission. They include powers to:
· intercept telecommunications under warrant;
· utilise listening devices under warrant;
· seek orders for the freezing and confiscation of assets;
· apply for injunctions to restrain conduct which may affect an investigation.

The PIC is able to conduct both reactive and proactive inquires, to carry out audits of high risk areas of police operations, perform integrity assessments, monitor the quality of internal investigations, take over investigations into police shootings and deaths in custody, make recommendations and participate in police corruption education and prevention programmes, and take such measures as are necessary for the protection of persons assisting it.

It has the capacity to carry out public hearings and to require evidence to be given under compulsion, although subject to privilege against subsequent use, save for the prosecution of the witness for perjury associated with the giving of evidence, or for any offence committed under the Act. Its powers to gather evidence are supplemented by its ability to obtain search warrants and to serve notices to produce documents or to provide information. Evidence gathered can be used for criminal prosecutions (subject to the qualification mentioned in relation to information given or documents produced under compulsion) and for disciplinary purposes.

The PIC is subject to a specific restriction not to employ serving or former members of the New South Wales Police Service, although it is empowered to make arrangements with the Service for the establishment of joint task forces, and to co-operate with and co-ordinate their activities. Such task forces are likely to be employed in circumstances where suspicion arises as to the involvement of police in organised crime. It is also empowered to work in co-operation with other investigative and law enforcement agencies, and to disseminate intelligence and information to those agencies as it thinks appropriate.

The Inspector General

The PIC is subject to supervision by an Inspector General, currently a retired Supreme Court Justice, with a duty to investigate complaints made against its staff, to audit its operations, effectiveness and compliance with the law; and to report to a Parliamentary Joint Committee annually, and as required. The PIC is directly answerable to the same Parliamentary Committee, and is required to issue an annual report on its operations. The Inspector General has investigative powers of his own motion, at the request of the Minister, or in response to a formal reference. They include the calling of officers to provide information and documents, access to the records of the PIC and the initiation of inquiries and prosecutions.

The Ombudsman

The ombudsman provides the final plank, in the platform, retaining an important role in dealing with certain categories of complaints, and in exercising an oversight role in relation to the manner in which the Service deals with complaints entrusted to it and with matters of customer service.

The PIC is able to work co-operatively and closely with the Ombudsman in providing a comprehensive opportunity for external review of the Service. The procedures adopted pursuant to the joint working arrangements between the Service, the PIC and the Ombudsman, are designed to ensure that complaints do not slip between the cracks, and that the PIC has the opportunity of taking over any matter of such significance, or of such relevance to other inquiries, that it should fall within its control.

The Fruits of the New Approach

So structured the PIC, the Office of Internal Affairs and the Crime Commission of New South Wales, provide a powerful structure within which corruption might be detected, particularly when operating in tandem. The availability of the coercive powers of the PIC and of the Crime Commission, the presence of a significant physical and electronic surveillance capacity, the use of strategic, operational and financial intelligence, and the combined skills of local investigators and external investigators with no allegiance to serving police or to the Service, is such that substantial inroads can be made both proactively and reactively into any pockets of corruption that emerge.

The experience of the Royal Commission, which was able effectively to roll over corrupt police and to use them in an undercover capacity, was possibly the single most important factor that caused uncertainty in the ranks of the corrupt and led to a progressive disclosure. There is no reason to suppose, as recent investigations have revealed, that there will be any relaxation in that approach, or less uncertainty that a fellow corrupt officer will not be working under cover.

Of considerable importance, so far as public confidence is concerned, is that for the first time there has been realistic annual reporting to Parliament concerning the level of corruption and the effectiveness of the measures taken to combat it, in the form of the Annual Reports of the PIC and of the Inspector General.

Apart from the initiation of criminal charges arising out of PIC inquiries, such reports are of value so far as they identify operational and management deficiencies, and test for the level and nature of any corruption that may persist in the Service, notwithstanding the Royal Commission.

In addition to the Annual Reports, in which the procedures of the PIC are reviewed for their regularity and compliance with the law (for example in relation to listening device and telecommunication interception product) the Inspector General has conducted a review and reported upon the Law Enforcement (Controlled Operations) Act 1997. This identified a number of practical problems which had emerged, consequent upon adoption of the Code developed by the four State law enforcement agencies using such operations (the Police Service, the Independent Commission against Corruption, the NSW Crime Commission and the Police Integrity Commission) and led to a number of recommendations for reform.

CONCLUSION

The climate for change is now favourable. The heightened awareness of the covert capacity available, the backing of the Government, the public rejection of the corrupt practices revealed, and the more critical attitude likely to be brought to bear by Judges and juries in cases where the evidence is suspect, the transparency of high risk activities, and the greater credibility likely to be attached to complaints are all inimical to the continuation of corrupt practices.

It is hardly unexpected that concerns have been expressed by individual police in relation to some of these matters, including in particular, integrity testing and drug and alcohol testing. What is now looked for is an acceptance of the assurances, given by Senior Command, that honest officers have nothing to fear from these measures or from the wider regime that has been adopted.

Not only does the system now in place provide a greater assurance for the honest officer that he or she should not fear the approaches of a dishonest officer, it should also provide a safer work place in which there is no room for an officer affected by drugs or alcohol to be behind the wheel of a police car, or to be placed in a situation which may involve the use of a firearm.

The remaining complaint that the Service is overregulated is entitled to a sympathetic ear. However, given the past record, the size of the Service, and the time needed to effect a profound change in culture and to achieve a new management team, as well as a fundamentally different management philosophy, presented no alternative.

It may well be in the future that there can be some scaling down of the structure presently in place. That may depend on how well the shift to a managerial/remedial approach proceeds, upon the degree of resistance that persists in relation to change, and upon how fast managers and new entrants to the Service embrace a philosophy of integrity above all.

The hope is that the work of the Royal Commission, and of those who have taken up the ball since, from the Commissioner down, will not be lost. One can only reflect, in conclusion, upon the words of Edmund Burke “Among a people generally corrupt, liberty can no longer exist”. May the cycle of corruption never return to a phase in which that becomes apposite.