Crime Commission: Last Bout for the Crime Fighter?

Are we about to witness the end of the fast times and heady days of the NSW Crime Commission? Is its “can do” culture going to be tagged as “should not”? Next week, it will take on perhaps its greatest threat in its 25 years of operation: itself.

When the two AFP officers crossed the underground car park on 2 June 2008 to apprehend Mark Standen, the Crime Commission’s head of investigations, they surely could not have fully appreciated what the arrest would unleash.

For there is a straight line from Standen’s arrest to a Police Integrity Commission (PIC) investigation, Operation Winjana, whose public hearings commence on Monday (5 September).

After Standen’s arrest, there was no small amount of confusion and much frustration within the NSW Government over who was actually responsible for dealing with corruption in the Crime Commission. ICAC held formal responsibility, but their role and interest was effectively dormant.

So, the Government rushed through legislation to give PIC jurisdiction, and made a tied allocation of around $800 000 to investigate the Crime Commission (described to me, drily, as “a down payment on a hit contract”). PIC also had to provide Parliament with a direct account of its oversight of the Crime Commission.

At the time, the current Police Minister, Michael Gallacher, voiced his scepticism:

[t]he inextricable links between these agencies make it laughable to suggest one could investigate the other and retain public confidence.

Given the build up to Winjana, it is reasonable to suggest that, at least with these hearings, the laughter is extinguished; amity giving way to enmity.

It has seen the two bodies slug it out in a series of Supreme Court cases to test the legality of public hearings; an ambit subpoena from the Crime Commission seeking access to records and SIM cards of Fairfax journalists (and subsequently withdrawn); and the PIC’s Assistant Commissioner asking the police to investigate whether there were leaks from the investigation.

In fact, the appointment of an Assistant Commissioner (former ICAC Commissioner and now Acting PIC Commissioner Jerrold Cripps) was to address the increasingly bitter atmosphere.

Winjana will open by looking into whether one NSWCC officer came to generous agreements on legal fees with his girlfriend, a lawyer for the accused. But PIC will go further to see if informal (and generous) negotiations were standard practice for the NSWCC, and whether they might have been unwise, if not unlawful on occasions.

The NSWCC was set up in 1985 in the wake of the various Royal Commissions into organised crime. It was given an extraordinary array of powers, including the ability to hold secret hearings (unprecedented and extraordinary for what was, and is, ultimately a law enforcement unit), as well as an array of phone tapping powers, assets confiscation and the like.

For anyone familiar with the NSWCC, its vast successes are attributable to its Commissioner of eighteen years, Phil Bradley.

Bradley has been with the NSWCC since 1989, and its Commissioner since 1993. He’s seen out eleven Police Ministers (he’s on his twelfth with Gallacher) and six Police Commissioners. Well regarded and respected, especially by his peers in similarly tasked agencies, he has run a tight ship. Undoubtedly, the hits to the Commission’s reputation will sting, especially as they coincide with his departure.

While the Crime Commission has a broader remit over organised crime, focus is usually given to assets confiscation as a performance barometer.

Over the past 20 years, it has confiscated over $263 million in assets, with $45 million in 2009-10 alone. In 2000 it seized more assets than the Commonwealth and the rest of the states combined. In recent years, it has continued to exceed the Commonwealth’s efforts.

With such success no wonder it has kindly asked NSW Treasury in the past two years to hand out $1.7 million to other agencies just for lending a helping hand. (This followed an initiative in 2006 whereby the Australian Crime Commission (ACC) gave $600 000 to NSW Treasury for the assistance given by the NSWCC). And from last year’s bumper harvest, one operation alone resulted in nearly $20 million in unpaid taxes passed on to the ATO.

But Winjana will look at just how these confiscations were settled, and whether proper regard was had to law and procedure. On the face of it, there is a broad expanse of matters to review in this regard.

A former NSWCC lawyer has stated that “approximately 99 percent” of confiscation outcomes were negotiated; consistent with the NSWCC’s annual assertion that the “vast majority” of matters were “resolved by negotiated settlement”.

A key question for PIC will be whether there was a culture within the Crime Commission that insisted on negotiated settlements, even it meant much more favourable terms for the accused than might otherwise be the case, and even to avoid judicial scrutiny.

PIC has already said that the Crime Commission’s ability to:

identify and manage serious misconduct risk was impeded by larger structural and cultural problems. Some of these may have been born during the 20 years in which it conducted its work with no direct oversight

If this culture affected assets confiscation, where did it emanate from? With a staff of around 100, the core of the organisation, focussed on intelligence, investigations and confiscations, is relatively small (particularly at those levels with greater degrees of decision making authority). The tone from the top is extremely influential in agencies of the nature and size of the Crime Commission.

In 2008 (these being the most recent figures, and with no reason to believe the profile has changed significantly), there were 17 “senior officers”; that is, at the highest grading outside the SES. At this level, with a fair degree of autonomy and internal leadership, most would be engaged in investigations, intelligence, legal affairs and corporate support.

While the allegations of misconduct may be narrowly confined, if there are criticisms of broader practices, it is hard to imagine that they will not apply to most if not all engaged in this aspect of the Crime Commission’s work.

Gallacher is ahead of the game on this one. In the wake of the Standen verdict, he announced a wide ranging review that will inevitably remake the Crime Commission. Just today, right on the eve of the hearings, he’s announced that the review will be undertaken by David Patten, Deputy President of the Administrative Decisions Tribunal and former Judge, as well as heading an inquiry into the conviction of Phuong Ngo for the murder of MP John Newman.

With his means of dealing with the fallout in place, one suspects Gallacher’s interest in the Winjana hearings will be, in part, to see if his longstanding misgivings about aspects of the Crime Commission’s culture are vindicated. He has previously voiced concerns that a culture has grown up around officers from who were engaged by the Stewart Royal Commission from the 1980s that has failed to change with the times.

But Gallacher will also be keenly watching how PIC handles this investigation. There have been serious concerns about PIC’s management and performance in recent years. PIC’s Inspector has made a series of highly critical reports to the Parliament. Major investigation reports have had to be amended.

There are concerns about misplaced priorities. A recent series of reports about how Occupational Health and Safety principles can be used to take on police corruption have caused considerable concern in some quarters.

Indeed, Gallacher had publicly foreshadowed an inquiry into PIC itself to be conducted alongside a Crime Commission review. Events obviously changed that course of direction. Instead, the terms of a super review of the major crime and corruption bodies, such as ICAC and PIC, is being prepared by the Premier’s Department, and may start towards the end of the year. It’s not just the Crime Commission under the gun in these coming weeks.

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