In the old days Parliament passed laws and to ensure they were obeyed provided penalties. If it is was suspected that someone broke the law the police investigated and pressed charged. That was fine for standard crimes: murder, arson, rape, burglary, armed robbery, assault and the like.
“”Look, there’s a body. Call the cops.” “”Help I’ve been robbed, call the cops.”
Then life got a more complex. New offences were needed in the public good. Criminal sanctions were used for a much wider range of things as the state interfered with individual behaviour more and more. Perhaps it was a response to more individuals not conforming with established religious and social mores. Perhaps it was an intolerance to what had previously be eccentric behaviour.
Anyway, the categories of crime have ballooned. In, say, 1930, for example, an individual could use heroin, go fishing in public waters for what he wanted and shoot which ever ducks he wanted and an individual could discharge whatever waste he liked into the rivers, to use four examples.
Using these examples again, the average cop had to be trained to distinguish between talcum and heroin, between the common bream and the endangered silver longfish and between the common duck and the long-footed hairy-billed duck. Alternatively, some specialist investigating unit had to be set up.
The Wildlife Service is pre-eminently knowledgeable about the hairy-billed duck. The Water Protection Agency is pre-eminently knowledgeable about cyanide discharges into rivers and so on.
People do not say: “”There’s a dead duck, call the cops.” They say: “”Call the wildlife protection agency.”
Taking the point further, police do not know how to determine whether small quantities of cyanide are being poured into a river.
The police, may of course, call in specialists to help an investigation. They can also bring in expert witnesses when the case finally comes to court. Whichever way it is done, it appears that specialists are in the best place to investigate malfeasance of a specialist kind.
It may be that police become the specialists. Police already specialise. We have all heard of the Fraud Squad, the Vice Squad and Homicide. These specialities, however, are generally divisions of two types of criminal conduct: crimes against property and crimes against the person.
Should the police specialise in a wider number of fields? Should we have an Environment Squad, a Taxation Squad or a Crimes Against the Government Squad?
Governments have argued against this. They argue that specialist agencies already exist to look after a whole area and should therefore do this work as well. It is more effective and efficient. And indeed they do. The Australian Taxation Office is more like to be able to uncover tax fraud than the police. The Australian Securities Commission is more likely to uncover company fraud.
But there is a snag in this. These bodies do not have the sole function of getting criminals into jail, unlike the police.
What is the Australian Tax Office for? It is to collect tax. It’s aim in life is the efficient collection of taxation and the protection of the revenue base. It gets kudos if it gets the money in. Thus when it is faced with a major tax fraud, it can have a dilemma. If the cheat is faced with a criminal charge and faces jail he will shut up, lock in and insist on all his rights. If, however, the Tax Office says: “”Be a good boy and pay all your tax (and a bit more as a civil penalty), and you will not go to jail,” our malefactor will often gladly pay up.
What is the Australian Securities Commission for? It is to regulate companies so that investors do not get ripped off. The welfare of shareholders and creditors of companies are very important to its function. When it catches a miscreant director it is more interested in chasing the money trail than putting the director in jail. Once again, the offer of going light might be tempting.
Thus the public desire to see crooks go to jail is in danger of being subsumed by other organisational aims.
This argument was put this week by the Commonwealth Director of Public Prosecutions, Michael Rozenes, QC, to the joint committee on Corporations and Securities at Parliament House.
Mr Rozenes would know. As DPP he is responsible for prosecuting all sorts of Federal crime: from drug smuggling to corporate crooks.
He would also know from the other side of the fence. Before he was DPP he defended many people in tax cases, with some success.
He is very concerned about this potential clash of philosophies. He called the ASC “”gentlemen corporate regulators”.
The head of the ASC, Tony Hartnell, says the ASC is just as interested in putting crooks in jail as Mr Rozenes is.
The two have clashed on the preparation of cases. Mr Rozenes says the ASC often presents the DPP without thousands of pages of transcripts and expects it to prosecute. However, the courts require the documents and evidence to be in proper evidentiary form. Only relevant material without opinions and hearsay can be included.
He wanted the ASC to do their job with respect to corporate crime as well as the police did theirs with respect to ordinary crimes. But he rejected the idea that the police should do corporate investigations. We have an expert body for that, the ASC, he said. All they had to do was do the job properly.
Mr Rozenes, of course, would appreciate the need for specialisation. He office is a specialist office. It was created early in 1983, and the first DPP was Ian Temby, QC.
In the days of cops and robbers, the cops did much of the prosecuting as well, briefing out major cases.
The aim of having a specialist prosecutor is twofold: to establish expertise and to apply a policy to prosecutions.
Policy is essential. It is simply not possible for the DPP to prosecute every case. A selection has to be made. The important thing is that the selection in made on consistent guidelines known to the public.
Mr Rozenes complains that he does not know on what grounds cases are passed from Mr Hartnell’s office to his. He surmises that because of the inconsistencies in cases that there are either no guidelines at all, or they are not being applied to all cases.
Mr Rozenes says every case of serious criminality must be prosecuted.
Mr Hartnell said on AM yesterday that he agreed with that. However, Mr Rozenes says his agency does not act as if it agrees that that should be the policy.
It is not a little spat between two bureaucrats. It is a fundamental clash that could affect public confidence in the criminal-justice system.
After a decade and a half of widespread evidence of corporate crookedness and tax dodging, the public wants to see malefactors brought to justice. To date the popular feeling has been the white-collar crooks don’t go to jail because they are rich and smart and hire smart lawyers.
If what Mr Rozenes says about the ASC is true, that may not be the total picture.
It may be there is something flawed with the charter and running of bodies that now do investigations into breaches of Commonwealth law. Prosecution of serious criminal conduct must come higher on their agenda, whether it is the Tax Office or an environmental-protection agency.
Though the ASC has only been in existence for 18 months, other regulatory bodies preceded it. Moreover, the Tax Office is in a similar position. And for all the millions it has successfully raked in in the past five years, there have been precious few successful prosecutions.
The public expects serious crime to be punished, whether it is a robber, polluter, tax cheat, breacher of superannuation trust or whatever. It can be done. Surely vigorous prosecution policies by Federal Government agencies will only enhance their other roles.
We now have to bear in mind that, as life gets more complex, every time a new Federal law is passed creating a separate bureaucratic structure, it will also create new offences which might have to be investigated by that structure.
The investigation and prosecution policies of all federal agencies must be brought into line with that of the DPP. Of course, in minor cases with special circumstances charges may not go ahead, in the public interest. But in serious cases we have to go back to the cops-and-robbers mentality: Go to jail. Go directly to jail. Do not pass Go. Do not pay a civil penalty of $200.