The NSW Crime Commission

The NSW Crime Commission is the most secretive and powerful police agency in Australia. Last week the NSW Parliament passed the Crime Commission Act 2012 that reshaped some of the organisation's oversight structures but failed to take the steps necessary to make the organisation fully accountable.

The new Act is a mixed bag. In short it:

• Took some steps forward by strengthening the oversight of the body;
• Worryingly widened the Crime Commission's reach into "ordinary policing operations";
• Removed Supreme Court oversight of criminal asset seizure orders; and
• Failed to take the opportunity to limit the indefinite executive detention powers of the Commissioner.

The Patten review of the Crime Commission

After more than two years of damaging revelations regarding the corrupt conduct of one of its officers, Mark Standen, and allegations that it was cutting secret multi-million dollar deals with criminals under the Crimes Assets Recovery legislation, it was generally agreed that the NSW Crime Commission was in urgent need of a thorough overhaul.

In 2011 NSW Police Minister Michael Gallacher asked former judge Mr David Patten QC to undertake a review of the Crime Commission. Mr Patten's report, which was handed down on 30 November 2011, made 57 recommendations for reform. The Government has adopted the great majority of them in this new Act, but crucially a number of fundamental recommendations have not been accepted by the government and were not included in the new Act.

What is good about the new Act? – improved oversight

Consistent with the Patten report the new Act has removed the Police Minister from the Management Committee of the Crime Commission. This is a commendable decision as the Management Committee considers operational reports and proposals for referral to the Crime Commission and there should be no opportunity for political input into these matters.

Again, consistent with the Patten report, the 2012 Act has established a new position of Inspector of the Crime Commission to undertake systemic oversight of the Commission's work. It was a further step forward when the government accepted a Greens' amendment during debate to grant the new Inspector the ability to make reasonable use of the resources and staff of the Police Integrity Commission to undertake that role. An inspectorate without adequate resources or staffing would be at best a paper watchdog.

These changes, together with a provision that will see the Crime Commission reviewed by a parliamentary committee, were all for the good.

Unfortunately, the story does not end there.

Crime Commission "mission creep"

The Crime Commission has extraordinary powers and there needs to be a clear line between its operations and the work of ordinary police. With this in mind the Greens put forward an amendment, supported by the Patten report, to only allow the Crime Commission to investigate a matter when "ordinary police methods of investigation" into the criminal activity were "unlikely to be effective." This is a crucial threshold that has been in place since the establishment of the Crime Commission in 1985.

As Mr Patten said in his report:

The argument for the removal of the test concerning the ineffectiveness of "ordinary police methods" is premised on the increasing similarity between the Commission's methods and those of the police, so that, with the exception of the Commission's coercive powers, there is no longer much meaning to the test. The Commission has pointed out that s. 25(2) does not require the Management Committee to consider the benefits of the Commission's involvement; rather, it requires attention to what the police are unlikely to be able to achieve.

The Inquiry is of the view that the requirement that the Management Committee be satisfied that ordinary police methods are unlikely to be effective remains a valuable limitation, ensuring that the Commission is not able to duplicate regular police work and that its extraordinary coercive powers are exercised only in circumstances where existing police powers are unlikely to yield a result. It is precisely because the main difference between the powers of the police and those of the Commission is the Commission's coercive powers that the requirement in s. 25(2) is appropriate. A very similar requirement is found in s. 7C(3) of the Australian Crime Commission Act 2002.

Later in his report Mr Patten said:

Substituting s. 25(2) [the "ordinary police methods" test] with a different test that required the Management Committee to consider the benefits, or possible need, for the Commission's involvement would not provide the same type of safeguard as the existing "ordinary police methods" requirement. This is because there could be benefits to the Commission's involvement in the investigation of many crimes: the Commission has clever staff, dedicated investigatory resources and extraordinary powers. Simply because a majority of the Management Committee perceives the utility of the Commission's involvement does not mean there would be an established need for the Commission to be involved in order to investigate the matter.

If a test turning on a perceived need for the Commission's involvement were substituted for s. 25(2), the question of whose understanding of need should count may also arise. The Inquiry therefore favours the retention of the "ordinary police methods" requirement.

Despite the arguments in favour, both the Government and the Opposition opposed this amendment and it was lost. For the Greens, the possibility of "mission creep" by the Crime Commission is an area that needs ongoing and close monitoring.

Indefinite Detention Still on the Books

The Act allows for the arrest of a witness on a summons issued by the commission and then for the commissioner to detain that witness for an indefinite period. There is no limit to the period for which the commissioner can detain a witness for examination. None at all. In this regard it mirrors the old 1985 Crime Commission Act.

The Greens accept that there is a legitimate basis for the Commission to have the power to order the arrest of an unco-operative witness to make them come before a Crime Commission hearing. However that power of detention needs to be limited because the warrant for arrest is issued by the executive and the detention is determined by the executive. Under the Act there is no judicial oversight unless the witness, who is being held under arrest, makes an application for judicial review.

The Greens consider that there can be no legitimate basis to allow for indefinite detention. Accordingly, we moved amendments to limit the period under which a witness could be detained by the Crime Commission to a maximum of 24 hours at any one time, and no more than once in any 7 day period. If the Commission wanted to hold a person for longer than this then they would have to apply for an extension in the Supreme Court.

Despite our best endeavours, we could not convince the government of the merits of this argument. They argued there was no evidence this power had been abused in the past. Parliaments should not make laws based on past good practice, but should aim to craft laws that prevent future poor practice. Whatever the merits of this debate, for now, indefinite detention remains on the books in NSW.

Taking away Supreme Court oversight of Criminal Asset Recovery orders

For years there have been questions raised about deals being cut between the Crime Commission and organised crime figures under the Criminal Assets Recovery Act. Of particular concern were repeated reports that the amount allocated for "legal expenses" in these orders was plainly excessive and being used to divert criminals' assets into the hands of their lawyers to be used in future legal cases unrelated to the Criminal Asset Recovery orders. These consent orders had been routinely approved 'on the papers' by a Court Registrar and were never considered in open Court by a Judge.

In 2011 the Supreme Court handed down the decision of New South Wales Crime Commission v Cookthat decided that a Judge had to review the amount being allocated in costs, and had the right to do so in open Court. The Crime Commission did not like his ruling as it required more paperwork to have a Criminal Asset Recovery order approved.

The Patten Report thought that the Cook decision was not only good, but should be expanded to allow the Court to review the merits of both the costs and the amount of assets being seized in the deal between the Crime Commission and the criminal. In the words of Mr Patten:

The Commission's submissions in its second Discussion Paper in relation to the CAR Act also addressed the impact of the decision of Hall J in New South Wales Crime Commission v Cook [2011] NSWSC 1348. That decision in my view stated the proper interpretation of the statute as it has always been and nothing has come to me during the Inquiry which suggests that the Act should be amended to overcome the decision. To the contrary, as appears in Chapter 5, I have recommended, in the interests of transparency, maintaining or increasing, rather than reducing, the impact of the decision in Cook.

The Greens moved an amendment to make this the law. This was opposed by both the government and the opposition. They relied on the advice of the Crime Commissioner that it would unduly restrict or delay the making of Criminal Asset Recovery orders. As a result the Act, as passed by the Parliament, now provides for no Supreme Court oversight of Criminal Asset Recovery orders.

Instead the government has put in place a regime where standard "guidelines" are established by the Crime Commission establishing the basis on which consent orders are allowed to be negotiated with criminals. Any application for consent orders to the Court will then have to include a certification that the guidelines have been complied with. This is at best half a solution to the problem. Again, it is an area that will require close monitoring into the future.

Conclusion

The extraordinary power and potential reach of the NSW Crime Commission raises serious issues for debate in any society interested in striking the right balance between protecting our civil liberties and fighting organised crime. To give the government some credit the Crime Commission Act 2012 does put in place more appropriate (and with the Greens amendment well-resourced) civilian oversight of the NSW Crime Commission.

However during the debate on the new laws the Parliament missed the opportunity to restrain the Crime Commission's indefinite detention powers, curtail its reach into ordinary policing operations, and place its deals with criminals under the Criminal Assets Recovery Act under the close scrutiny of an independent court.

The end result is that the Crime Commission marches on, one step forward, one step back.