The NSW Crime Commission

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.