The NSW Crime Commission

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