from Crikey ….. 

NSW crime commission: the law beyond the law 

Canberra correspondent Bernard Keane writes: 

Senior NSW police believe the intense culture of secrecy at the State Crime Commission and its lack of accountability may mean accused drug importer and Crime Commission assistant director Mark Standen can deal his way to a lighter sentence, should he be convicted, or avoid some charges altogether. 

The prosecution of Standen is expected to lift the lid on Australia’s most secretive and unaccountable agency. The NSW Crime Commission is not a police body but a statutory authority with Royal Commission-like powers to investigate crime and assemble evidence.  

Its officials, like Standen, are not law enforcement officers but public servants, exercising remarkable, wide-ranging powers. Many of its staff have been NSW police officers (particularly Police Internal Affairs officers) seconded to the Commission. It is overseen by a tight committee consisting of the NSW Police Minister, the NSW Police Commissioner, the Federal Police Commissioner, and Crime Commission head Phillip Bradley, Standen’s immediate boss. 

Significantly, however, the NSW Crime Commission has until recently operated with no external accountability of any kind. There is no Parliamentary committee oversight of this body, and the Iemma Government only recently amended the Police Integrity Commission’s statute to bring the Crime Commission within the oversight of the PIC, after years of urging by all-party Parliamentary committees. However, there are serious concerns that the PIC is not up to the task of overseeing the Crime Commission. 

The Crime Commission’s Act also provides remarkable powers. It is not bound by any rules of evidence, does not have to ensure legal representation, can hide its own hearings, and can ignore the right to silence and protection against self-incrimination. 

The Commission also has virtually unlimited secrecy provisions that enable it to prevent any information it doesn’t want revealed to be given, even to a court or to police. The Commission can even prevent someone from revealing they’ve been forced to attend a hearing and they can be charged if they tell their partners, relatives or friends anything about their dealings with the organisation. 

The Commission’s remit takes it into the murkiest depths of corruption and organised crime in NSW. In particular, it has worked closely with NSW Police Internal Affairs, and on that basis is necessarily unpopular with NSW police. Its agenda also brings it into conflict with the Australian Federal Police. Federal Police Commissioner Mick Keelty boycotted the Commission’s meetings for an extended period. 

But the Commission’s record features major bungles that raise worrying questions about its ultra-secrecy and lack of accountability. The Commission was instrumental, with NSW Police Internal Affairs, in the botched investigation into the successful NSW Police Taskforce Bax in 1997, which included the arrest of the entire taskforce despite evidence pointing to a single corrupt officer. Late last year, all the affected taskforce officers received an apology from the NSW Police, on top of what is believed to be more than $10m in compensation.  

In 2000, the Commission went for its biggest catch yet, seeking a listening devices warrant from Justice Virginia Bell of the NSW Supreme Court in relation to over 100 people, mostly senior police. The warrant was based on claims by an informant known as M5, whose handling was overseen by Standen, and on sworn evidence from Crime Commission and Internal Affairs officers. However, the collation of names for the warrant was so sloppy that some deceased police officers were included on the list, which also extended to the television and newspaper crime journalist Steve Barrett (who recently wrote about the scandal).  

Then-NSW Police Commissioner Peter Ryan defended the warrant as being required for a single gathering of those named (which never could have occurred), but the warrant was extended beyond the usual 21-day limit. 

Once the warrant was revealed, the ensuing outcry forced the NSW Police to establish Strike Force Emblems to investigate on what basis the warrant had been issued and whether Crime Commission staff - who had obtained the warrant - had perjured themselves to satisfy the requirements of the Act.  

In response, the Crime Commission invoked its secrecy provisions to prevent any of its staff from being subpoenaed or interviewed by NSW Police, and refused access to the affidavits used to obtain the warrant. 

As the overall manager of M5, Standen was potentially a significant target of the Emblems investigation. Police sources believe Standen almost certainly knows which Crime Commission staff - many of whom are now senior NSW police officers - perjured themselves to obtain the warrant in 2000. The information would provide substantial leverage to Standen in cooperating with authorities. Police sources believe Standen could use the information, in combination with a claim that the drug operation for which he was arrested was part of a sanctioned, undercover Crime Commission activity. 

There’s undoubtedly a Chinatown effect at play here. It may be impossible in this murky interface of police, investigators and organised crime, and various combinations thereof, to ever work out how what is true in these allegations. However, it is clear that the secrecy and lack of accountability of the NSW Crime Commission only adds to the confusion.  

And, as the case of Standen suggests, it may yet serve to inflict massive damage on the Commission itself.