COMMITTEES AND COMMISSIONS OF INQUIRY INTO CRIMINAL JUSTICE AGENCIES: A HISTORY REPEATING ITSELF

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1 COMMITTEES AND COMMISSIONS OF INQUIRY INTO CRIMINAL JUSTICE AGENCIES: A HISTORY REPEATING ITSELF Desmond McDonnell Australian Graduate School of Police Management, NSW Paper presented at the History of Crime, Policing and Punishment Conference convened by the Australian Institute of Criminology in conjunction with Charles Sturt University and held in Canberra, 9-10 December 1999

2 Commissions and Committees of Inquiry Commissions and committees of inquiry are an established part of government in New South Wales and represent one of the senior instruments of long term policy making. These ad hoc investigative committees 1 are public bodies, set up to gather evidence, report to government and make recommendations upon the specific matters defined in their terms of reference. The terms of reference can be so broad as to embrace general and long-standing social problems or be confined to specific policy issues. The terms of reference given to Justice Nagle the Chair of the Royal Commission into New South Wales Prisons in 1976 required him: To inquire into and report upon the general workings of the Department of Corrective Services of New South Wales, its policies, facilities and practices in the light of contemporary penal practice and knowledge of crime and its causes and without restricting the generality of the foregoing to inquire into and report upon: (a)the custody, care and control of prisoners and the relationship between staff and prisoners; (b)the selection and training of prison officers and of other staff engaged in training, correctional and rehabilitative programs for prisoners; and to recommend any legislative and other changes necessary or desirable in consequence of the findings. (Nagle Report, 1978: 3) What ever else may be included in their terms of reference, parliamentary committees of inquiry are invariably directed to investigate and recommend. Their procedures demonstrate both research and advisory functions: they conduct public hearings, issue invitations to interested groups and individuals 2, or sobenia witnesses to deliver oral evidence; receive written evidence; seek the advice of relevant experts; conduct visits of inspection and finally a report is submitted for public scrutiny containing the findings of the committee and its recommendations to parliament. There is no guarantee that government will implement the recommendations made by the committee, or having been implemented that a particular recommendation will be sustained. The Nagle Report recommended a maximum time for prisoners to be confined in their cells overnight in accordance with declared international standards. Recommendation 134 (Prisoners Amenities and Conditions, Time out of Cells) Prisoners should not be locked in their cells overnight for longer than ten hours. (Nagle Report,1978:471) While that standard was maintained for many years in New South Wales it is no longer sustained for all prisoners. It is now not uncommon for maximum security prisoners to be confined to their cells for up to 16 hours a day. The effectiveness of Royal Commissions as instruments of policy making has of course been widely acknowledged. A constant volume 1 Cokie and Robinson (1937) associate the origin of Royal Commissions with the establishment of monarchical power. During the reign of William I commissioners were appointed to inquire into routine problems associated with securing of the Norman Conquest. It was during the first part of the nineteenth century, according to Cory (1882) that parliamentary committees of inquiry become significant modes of social inquiry and instruments of public policy. 2 In his examination of the constitutional role of Royal Commissions in Britain, Cartwright (1975) saw them as providing a one of the few avenues whereby interested private individuals and lobby groups can participate directly in the policy making of government. 2

3 of commentary continues to follow the Report of the Royal Commission into the New South Wales Police Service. In an essay on recent Royal Commissions relating to police and justice administration in Britain, Paul Acres, Chief Superintendent of Merseyside Police, concludes that the 1980 Royal Commission in the United Kingdom led directly to the Police and Criminal Evidence Act 1984, which had a greater direct impact over the control of police investigative procedures then any other single piece of legislation in that country, and the Prosecution of Offenders Act 1985, which separated the powers of investigation and prosecution, removing prosecution from police to the Crown Prosecution Service, (Acres 1992:111). But the history of Royal Commissions and committees of inquiry in New South Wales, as elsewhere, has involved a number of what are now standard criticisms associated with: 1 The cost-benefit ratio, perhaps the first criticism in a managerialist climate and one shared by the public media and state officials alike; 2 The narrowness, or unmanageable breadth, of the terms of reference of the inquiry; 3 The assumed impartiality of the chairperson and committee members; 4 The dominance of a judicial perspective; 5 In relation to primary institutions of state, the damage to public confidence by revelations of mismanagement or corruption; 6 The criticism that committees of inquiry represent a tactical devise to defray government action; (Although outside of the area of justice administration, this criticism was raised in relation to the Pollution Control Commission conducted in NSW during the Wren government by retired Supreme Court Judge, Simon Isaacs QC. Referring to the desired duration of the inquiry, Premier Wren was overheard to say to Issacs at a cocktail party, Take your time Sammy (Baldry and Vinson 1991:25); 7 The absence of control over the implementation of policy following the submission of recommendations by committees of inquiry. (It is interesting to note responses to the conventional hands off policy expected of the members of a committee of inquiry after the submission of its report. In an interview with Justice Nagle in 1997 he confessed that he took no particular interest in the State s prison system after the submission of his Report, and in fact did not look at a copy of the document until 15 years later, when asked to give an address on the Royal Commission from an historical perspective. Justice Wood in relation to the Royal Commission he chaired has taken a different approach. As recently as September 1999 he addressed a conference sponsored by the New South Wales Police Service in which he gave an extensive commentary on the recommendations of the Royal Commission into the New South Wales Police Service); 8 Formal studies of committees of inquiry, for example the collection of essays, Social Research and Royal Commissions edited by Martin Bulmer (1980) have drawn attention to the questionable validity of the research of parliamentary committees in terms of systematic research procedures and the theories of social science. Zdenkowski and Brown (1982) in their discussion of the Royal Commission into New South Wales Prisons saw the Commission s research endeavors as severely limited in terms of systematic social inquiry and a willingness to explore current social theory as had been directed in the terms of reference. 3

4 A matter of cardinal significance which has not attracted a great deal of public comment is that in Chapter 2 of his report ( Perspective ), Justice Nagle clearly assumes a priori the nature of prison as a penal institution. He documents the nature of inquiries, the similarity of institutional abuses, the similarity of reform proposals. But the response to this is not to analyze why this situation should be tolerated, rationalized, justified or condemned. In abandoning any pretense at inquiring into crime and its causes the Commissioner took solace in ignoring a specific mandate by referring to others who similarly saw no need to canvas fundamental questions relating to these issues. (Zdenkowski and Brown 1982:178) 9 But perhaps most significantly from an historical perspective is the criticism that commissions of inquiry perform a primarily rhetorical function legitimizing state institutions following crises in community confidence. The study of the reports of commissions of inquiry on law and public order in Britain, by Burton and Carlen (1979) is a strong example of this critique. In their view, such commissions and committees of inquiry are to be seen as: representing a system of intellectual collusion whereby selected, frequently judicial, intelligentsia transmit forms of knowledge into political practices. The effect of this process is to replenish official arguments with which established and novel modes of knowing and forms of reasoning. By linking state functionaries with the lay intelligentsia official discourses on law and order become one part of the constant renewal. They are one practice amongst many in the process of reproducing specific ideological social relations. (Burton and Carlen 1979:7-8) But such arguments are usually countered in the literature by reference to those recommendations that have been implemented and the guidance provided by lay experts rather than State professionals. Whether or not committees of inquiry concerned with justice administration warrant comment of the kind outlined above, the fact of their regular occurrence attracts the attention of formal scholarship and the interest of the general community. The Report of the Royal Commission into New South Wales Prisons noted repeated recommendations of committees of inquiry to advance the conditions of the State s prisons before the appointment of the Royal Commissioner in At various stages of New South Wales s penal history, recommendations have been made aimed at ameliorating the position of the prisoner. In some instances the recommendations made in this report repeat recommendations made many years ago but never implemented. This Royal Commission can do no more than make recommendations. It is to be hoped that they will fare better than many in the past. (Nagle Report 1978:39) Justice Nagle illustrated this point with reference to the persistence of a form of incarceration known as the separate system. 4

5 It [the separate system ] remained in vogue for more than 100 years, despite the fact that many who were subjected to it were driven insane. It appears that prison administrators gave no thought to the potential effect of such isolation on the mental health of prisoners. The same could be said of those who were responsible for the erection of Katingal. More than 100 years later. (Nagle Report 1978:39) It is interesting to note that a Legislative Council Select Committee, (Select Committee on the Increase in Prison Population) was appointed in New South Wales, in November 1999, 21 years after the Royal Commission into New South Wales Prisons, with broad terms of reference embracing not only the increase in the prison population, but also the effectiveness of imprisonment, the wider social implications of the incarceration of both women and men, alternatives to incarceration and post-release assistance (Legislative Council Minutes, November : All matters about which the Royal Commission into New South Wales Prisons made recommendations in Commissions and Committees of Inquiry into Police As with prisons so too with police, committees of inquiry do not stand alone. The Royal Commission into the New South Wales Police Service is the a latest in a series of committees of inquiry relating to police all of which closely followed each other. The 1954 Royal Commission into Certain Matters Relating to David Edward Studley-Ruxto (the Dovey Report 1954) was followed in 1973 by the Royal Commission into Organized Clubs in New South Wales, (the Moffitt Report 1973) and the Commission of Inquiry into Police Administration (the Lusher Report 1981), and the Royal Commission into Aboriginal Deaths in Custody (the National Report 1991). A catalogue of this kind can be listed for similar jurisdictions. There have been six Royal Commissions in Britain this century bearing directly upon police: 1 In 1906 a Royal Commission was constituted following allegations against Metropolitan police officers of bribery and brutality. 2 In 1929 a Royal Commission on police powers and procedures following concerns over police conduct during interrogations. 3 In 1960 a Royal Commission was appointed to consider among other matters accountability for mistakes and errors of judgement made by police. 4 In 1978 the Royal Commission on Criminal Procedures was appointed to again examine the powers and duties of police in respect of investigations of criminal offences and the rights and duties of those suspected of an offence. 5 In 1980 a Royal Commission dealt specifically with a controversy over confessions to police. 6 And in 1991 a Royal Commission was constituted to examine the effectiveness of the criminal justice system in Britain and consider the supervision by senior police of police investigations. In the United States the pattern of recurring committees of inquiry into police was acknowledged in the Report of the Knapp Commission in 1972 in relation to its inquiry into corruption in the New York City Police Department. 5

6 A considerable momentum for reform has been generated.after previous investigations, the momentum was allowed to evaporate. The question now is: Will history repeat itself? Or does society finally realize that police corruption is a pattern that must be dealt with and not just talked about every twenty years. (Knapp Report 1972) The Knapp Commission was followed by the Mollen Commission of Inquiry in 1994, 22 years later, with similar terms of reference concerning corruption in the New York City Police Department. In relation to New South Wales, the apparent cycle of public scandal, formal inquiry, the adoption of reform policies followed by a decay in the reform process, was acknowledged by Justice Wood in the Report of the Royal Commission into the New South Wales Police Service If anything has been learned from the history of inquiries into the New South Wales Police Service it is that the simple public disclosure of serious misconduct and corruption, accompanied by policy recommendations specific to matters unearthed, will not guarantee any long term remedy. (Report of the Royal Commission into the New South Police Service 1997:131) An acknowledgement similar to that made by Justice Nagle in his Report on the New South Wales prison system in Justice Wood repeated, what appears to have become the warning of commissions of inquiry, or perhaps a caveat upon the durability of their effectiveness, on a number of subsequent occasions, most recently, in a conference address titled, Issues Impacting Upon Corruption Investigations in the Australian Environment in September 1999 year. The process of scandal, inquiry and reform of Police Services with which we have become familiar has tended to become 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 respond to the problem. 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? (Wood 1999:1) Later in that address Justice Wood describes the way ahead in terms of a comprehensive plan (Wood 1999:1) now very familiar to the New South Wales community, embracing police career development, operational measures, internal investigations and ongoing external oversight. He repeated the observation made in earlier discussions associated with committees of inquiry that malfeasance of an entrenched and systemic kind is resistant to single solutions. 6

7 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. (Wood 1999:20) Notwithstanding the now widely embraced confidence in the policy initiatives, reorganization and other strategies of the New South Wales Police Service, following the Royal Commission in1997, significant questions remain for criminology in relation to this, and other commissions of inquiry, in the criminal justice field. For example, is it to be accepted that commissions and committees of inquiry will form a regular part of the administration of police and other justice agencies? Mark Finnane in his study of policing in Australia as an historically-formed practice of government (Finnane 1994:187) concludes that there is a resilience in policing in respect of its organizational characteristics, particularly the long-standing centralized bureaucratic control of personnel and resources. The impact of corruption scandals on the organization of policing in Australia has for the most part been minimal. Police departments have been resilient in the face of public notoriety... Recent experience in some States has illustrated just how deeply resistant police can be to demands for the application of the rule of law to their own behavior. (Finnane 1994:183) (Although Mark Finnane made this assessment prior to the Wood Royal Commission it followed the history of committees of inquiry discussed above.) If Finnane s conclusion is accepted then it is to be observed that the organizational resilience he identifies, has accompanied the development of a professionalised administrative infrastructure, which commands significant public-funded budgets. Other parts of that development include large numbers of career personnel, a range of technical knowledges and socio-legal discourses, much of which was a direct consequence of the recommendations of committees and commissions of inquiry. As well as the historical circumstances associated with particular committees of inquiry when those committees are positioned chronologically, there is also a discourse dimension represented in the collective of their written reports. (The term discourse and its associates discourse theory and discourse analysis are highly contested notions even within criminology. But whenever applied, central to the concern of discourse studies is the suspicion that the discourse of administration not only describes the reality of administration but also, through the production of certain effects and the suppression of others, profoundly shapes the reality understood as administration.) While the reports of committees of inquiry may be interrogated in order to understand the specific historical circumstances in which public concern was raised and reforms recommended, they may also be considered in terms of the modes of knowing and structures of knowledge according to which they represent their subject, whether that be prisons or policing. When this kind of analysis is applied to the reports of commissions of inquiry in relation to policing in New South Wales perhaps certain constants can be identified. One such constant is the understanding of police practice as the operation of what might be described as a bounded organization. That is to say the privileging of the strong institutional integrity of policing and a marginalising of alternative perspectives centered upon the community. While the Wood Report in much of its discussion represents a movement away from the insularity of policing, it would not be unreasonable to 7

8 say that the image, of enclosure, partition and ranking remains strong and capable of being strengthened. A counter discourse sees policing more securely imbedded in the full range of its social functions and effects, not all of which are determined by the reality of crime. A view which sees the organisation as essentially the condensation of relationships each of which links policing with other social realms, the recipients of social security and the youth culture to name two of many. This view is supported by current development in the broad field of organisational theory, (Albrow, 1997 and Grant and Oswick, 1996), and is to found in recent studies of modern policing (Morgan and Newburn 1997). Conclusion Is it now the case that the regular occurrence of commissions and committees of inquiry have become an adjunct to criminal justice institutions and that the observation of Foucault in his study of the European history of the prison can be more broadly applied? One should also recall that the movement for the reforming of prisons, for controlling their functioning is not a recent phenomenon. It does not even seem to have originated in the recognition of failure. Prison reform is virtually contemporary with the prison itself: it constitutes, as it were its programme. From the outset, the prison was caught up in a series of accompanying mechanisms, whose purpose was apparently to correct, but which seem to form part of its very functioning, so closely have they been bound up with its existence throughout its long history There was at once a prolex technology of the prison. There were inquiries.. There were societies for supervising the functioning of prisons and for suggesting improvements (Foucault 1977:234) David Dixon in a recent essay (Dixon 1999) attributes this regular recurrence to political necessity. It may be politically necessary to present each reform process as original and to see corruption as a dragon to be slain. Unfortunately, the record of programs which employ such rhetoric has not been impressive. Perhaps a more modest and considered approach would be better: reform could be seen as a long-term continuing project, and corruption could be seen as a normal condition (albeit one causing great harm which is to be minimized). However such a discursive shift would require a much broader change in our politics of law and order at a time when the significant currents are running in the wrong direction. (Dixon 1999:179) Perhaps commissions of inquiry into justice administration when considered in the collective of their written reports contribute a powerful discursive current to this wrong direction? 8

9 Reports of commissions and committees of inquiry Dovey, J. (1954) Royal Commission into Certain matters Relating to Davis Edward Studly- Ruxto, Report, NSW Publishing Office, Sydney Fitzgerald J. (1987) Royal Commission into Possible Illegal Activities and Associated Police Misconduct, Report, Queensland Government Printing Office, Brisbane Knapp, J. (1973) The Knapp Commission: Report on Police Corruption, Braziller Publishing, New York Lusher J. (1981) Commission of Inquiry into NSW Police Administration, Report, NSW Printing Office, Sydney Moffitt, J. (1973) Royal Commission into Organised Clubs in New South Wales, Report, NSW Government Publishing Office, Sydney Muirhead, J. (1988) Royal Commission into Aboriginal Deaths in Custody, Report Australian Government Publishing Service, Canberra Nagle, J. (1979) Royal Commission into New South Wales Prisons, Report, NSW Government Publishing Office, Sydney Wood, J. (1997) Royal Commission into the New South Wales Police Service, Report, Vols. 1,2,and 3, NSW Government Publishing Office, Sydney References Dixon, David (1999) A Culture of Corruption, Hawkins Press, Sydney Finnane, Mark (1994) Police and Government: Histories of Policing in Australia, Oxford University Press, Melbourne Zdenkowski, G. and Brown, D. (1982) The Prison Struggle, Harmondsworth, Penguin Foucault, M. (1977) Discipline and Punish: the Birth of the Prison, Penguin, London 9

Submission of the. to the. NSW Department of Health

Submission of the. to the. NSW Department of Health Submission of the NEW SOUTH WALES COUNCIL FOR CIVIL LIBERTIES to the NSW Department of Health Review of the forensic provisions of the Mental Health Act 1990 & the Mental Health (Criminal Procedure) Act