Never has the line “absolute power corrupts, absolutely” been more relevant.
It has taken decades, and the drug conspiracy charges of former assistant director Mark Standen, for the absolute power of the NSW Crime Commission to be truly held to account. Finally, that power is to be tested, with Police Minister Michael Gallacher promising an independent inquiry into the Commission targeting its accountability and structure.
But why has the Commission managed to evade truly independent oversight — similar to that of ASIO — for so long, as well as an inquiry into its structure that lawyers have been calling on for years?
For one, the Commission’s power is cemented by the NSW Crime Commission Act 1985, which grants the body what NSW Law Society president Stuart Westgarth labels as “virtually unlimited secrecy provisions”.
Fundamentally, the Commission is not tied to rules of evidence, is free from having to ensure legal representation, is able to withhold information being given to a court or the police and is able to conduct hearings in secret. So far-reaching are the Commission’s powers it can even charge an individual who reveals to their relatives that they’ve been forced to attend a hearing.
According to Phillip Boulten SC, senior vice-president of the NSW Bar Association, the Commission has been particularly successful at lobbying the NSW government to avoid investigations regarding its power and structure.
“It’s marketed itself as a highly effective investigative organisation with no taint of corruption and it has successfully deposited many millions of dollars into state revenue through assets, forfeiture and seizure regimes,” he said.
And, says Dr Michael Kennedy, a former employee of the NSW Crime Commission who is now in charge of the policing program at the University of Western Sydney, it’s that very preoccupation with money and its own bottom line that has seen its power corrupted.
“They’ve changed the social contract which is law and order into a business. They’ve done a cost benefit analysis into the place rather than work out what it’s achieving,” Kennedy told The Power Index this morning. “It’s been more about the bottom line than solving crime.”
While the Iemma government amended the Police Integrity Commission’s statute to include the Commission within its oversight reach in 2008 following the arrest of Standen, there were always questions about just how far-reaching the PIC could be, given its limited capacity to deal with the type of investigative role the Commission is responsible for.
In line with the inquiry, how such oversight should be managed will no doubt be up for debate, along with the issue of whether a truly independent body could get in the way of the Commission being as effective in the future as it claims to have been in the past.
Boulten believes it can: “So long as there are appropriate mechanisms in place to ensure that operational effectiveness is not compromised there is no problem with outside oversight.”
Westgarth advocates a mechanism similar to the Inspector-General of Intelligence and Security, who is currently responsible for oversight of ASIO, as the best way forward for oversight of the Commission.
He adds that increased credibility can only help the Commission in its objectives: “I think it would be more effective because there wouldn’t be … reservation[s] about its activities as to whether it behaved lawfully or put forward evidence from tainted individuals.”