The NSW and Australian Crime Commission: Over-reaching Power?

Organised crime takes a serious toll on society with its effects being felt everywhere. In the National Organized Crime Response Plan 2015-2018, the Australian Crime Commission estimates that “…serious and organised crime costs Australia $15 billion every year, however the actual figure is likely much higher.” Through the Organised Crime in Australia (OCA), the Australian Crime Commission has identified the following key emerging threats:

• Methylamphetamine use and its involvement in transnational crime
• Use of technology to facilitate organised crime
• Transnational and organised crime groups targeting the Australian financial sector
• Emergence of global professional money laundering syndicates to launder proceeds from illicit drug sales
• Illicit use and trade of firearms
• Involvement of entrepreneurial individuals in illicit markets

In their 2015 report, Organised Crime in Australia, the Australian Crime Commission stated a priority in reducing the impact of serious and organised crime. Their focus would be on working proactively to discover new and emerging threats and gaps in intelligence, maintaining a national intelligence picture on current and emerging threats, and responding to serious and organised crime by “disrupting, disabling and dismantling criminal enterprises through effective enforcement, regulation, policy and legislation.”

The Australian Crime Commission and the NSW Crime Commission have a laudable mission to reduce the impact of serious and organised crime on Australia and its economy. The commission conducts special investigations and operations using law enforcement methods that are not available to other agencies, including “Royal Commission style coercive powers.” Many have concerns about how such secretive organisations operate. However, with the sophistication of today’s organised crime syndicates others feel it may be the only way to uncover, investigate and halt serious crime.

A Brief History of the Australian Crime Commission

At one time, Australia had several different agencies dealing with crime. However, the Council of Australian Government Leaders Summit decided that there needed to be a “national framework” to meet the “challenges of multi-jurisdictional crime.” More specifically Australia needed an agency that could focus solely on serious and organised crime. As a result in 2003, the Australian Crime Commission was introduced to replace those organisations:

• The National Crime Authority (NCA), which investigated complex organised crime on a national level, collecting, analysing and sharing intelligence with other law enforcement agencies, as well as making recommendations on law, policy and administrative reforms.
• The Australian Bureau of Criminal Intelligence (ABCI), which facilitated the exchange of criminal intelligence between Australian law enforcement agencies with a particular emphasis on illicit drug trafficking, according to the AIC
• The Office of Strategic Crime Assessments (OSCA), which provided the Commonwealth government with “policy-relevant strategic assessment of significant emerging trends and threats” and fostered intelligence coordination between agencies

The Australian Crime Commission exists to investigate crimes as well as law enforcement’s response to crime, and in its own words, “Information—for the Crime Commission and its partners—is critical currency.”

The NSW Crime Commission

The New South Wales Crime Commission is the state’s criminal intelligence agency and operates pursuant to the Crime Commission Act 2012. The commission first appeared in 1986 under the New South Wales Crime Commission Act 1985. It also has powers under the Criminal Assets Recovery Act 1990 to confiscate the assets of those involved in organised and other serious crime. The Commission works closely with other law enforcement agencies, and the New South Wales Police Force, in particular.

Corruption concerns in the NSW Crime Commission

According to an article in the Sydney Morning Herald, the NSW Crime Commission holds “super-judicial powers” such as secret surveillance and coercive interrogation and “witnesses no longer having the right to silence.”

However, it has no parliamentary committee to watch over it. Going against the “fundamental rules of public governance,” the only scrutineers and people who can protect against “any abuse of its extraordinary powers” are heads of the NSW and federal police and the police minister and the staff who work there are all public servants. Six years ago it was “boycotted by the former federal police chief Mick Keelty,” presumably because of this, which left just two people on its “management committee.” Seven years ago the commission also became immune to freedom of information laws.

In 2011, The Justinian published a rather lurid-sounding remark about the NSW Crime Commission:

The Crime Commission has become a victim of its own overreaching power – the power to investigate serious drug offences, significant frauds and organised crime, to get deeply into bed with criminals and to conduct itself in secret.

Specifically, the commission’s assistant director, Mark Standen, was convicted of perverting the course of justice and conspiracy to import and supply pseudoephedrine (used in the manufacture of drugs).

The fallout from this scandal was far-reaching and included a sizeable amount of public distrust of the commission. For instance, when discussing Standen’s fall, the Daily Telegraph used the word “shadowy” to describe the NSW Crime Commission and that it maintained “a law unto itself.”

What do these crime commissions achieve and at what cost?

The Australian Crime Commission sits in a unique position as Australia’s national criminal intelligence agency with investigative functions, dedicated to serious and organised crime. Since first set forth in 2002’s Australian Crime Commission Act, it has collected, analysed and acted on evidence. The result is a national database of criminal information and intelligence and the ability to provide guidance on national criminal intelligence priorities. Along the way, according to the Australian Crime Commission, it provides “the national picture of serious and organised crime,” something that enables the prioritisation of threats.

The NSW Crimes Commission claims it is responsible for 80 per cent of the state’s organised crime arrests.

All of this is good, but at what cost?

As ACT Supreme Court Justice Richard Refshauge states in an article in ABC News : “we must not let our fears, our alienation, our selfishness, our xenophobia, or our smugness” allow our leaders to take away “our rights and freedoms” or from authoritarian limits” in a guise to protect us from national economic and terrorist threats.

Magna Carta came into being to place limits on authoritarian rule and to protect the rights and liberties of citizens. It is what our judiciary system is based on, what we should follow and which no organisation or agency should be above.

With all of that in mind, despite weathering some troubled waters, the Australia Crime Commission now looks to the future with its Strategic Plan 2013–18.