Bills Digest 92 1995-96
Crimes Amendment (Controlled Operations) Bill 1996
WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments.
This Digest was available from 28 May 1996
CONTENTS
Date Introduced: 8 May 1996
House: Senate
Portfolio: Attorney-General
Commencement: Royal Assent
The Bill amends the Crimes Act 1914 in relation to controlled
operations involving narcotics. The Bill exempts law enforcement officials
from liability for what would otherwise be criminal activity if they are
involved in importing, possessing or exporting narcotics in the course
of a controlled operation.
In June 1995, the Labor Government introduced the Crimes Amendment (Controlled
Operations) Bill 1995 into the House of Representatives. The 1995 Bill
was the Labor Government's response to the decision of the High Court
in Ridgeway v. The Queen.(1) Ridgeway v. The Queen involved
an operation in which officers of the Australian Federal Police were involved
in the importation of a traffickable quantity of heroin. In the High Court,
McHugh J recited the facts of Ridgeway as follows:
[Ridgeway] was released from prison in February 1989. In September and
October 1989, he travelled to Singapore under a false name and in breach
of his parole conditions. In Singapore, he met Lee and solicited him to
import heroin into Australia. Unbeknown to ... [Ridgeway], Lee had become
an informer for the Royal Malaysian Police Force. The officer who 'ran'
Lee was Thian Soo Chong, an Assistant Superintendent of Police. Lee kept
Superintendent Chong informed of his dealings with ... [Ridgeway]. In
turn, Superintendent Chong alerted Superintendent Butler, an Australian
Federal Police Officer stationed in Kuala Lumpur, as to the plans of ...
[Ridgeway]. With the knowledge, if not the encouragement of the Australian
Federal Police, Superintendent Chong and Lee purchased heroin in north
Malaysia for about $4000 on 18 December 1989 for the purposes of delivering
it to ... [Ridgeway] in Australia.
... Arrangements were made by members of the Australian Federal Police
and the Royal Malaysian Police Force for Superintendent Chong and Lee
to travel to Australia carrying the heroin in a plastic bag inside a tissue
box which was in a camera bag. Australian Federal Police officers took
steps to ensure that Superintendent Chong - who was carrying the heroin
- was not searched or detained by Australian Customs officers.(2)
Ridgeway was later arrested by the AFP after having purchased the heroin.
Australian law enforcement officers have used covert operations in the
past to monitor illegal narcotics dealings, track them through the customs
barrier and apprehend those involved in importation, possession and other
offences. The circumstances in Ridgeway were very different from
these. In Ridgeway law enforcement officers themselves were involved
in importing heroin for the purposes of apprehending Ridgeway.
In its decision in Ridgeway, the High Court held 6:1 the actions
of the police involved 'grave and calculated ... criminality'(3) and that
the evidence against Ridgeway was so tainted because of its illegal nature
that it must be excluded. The High Court quashed Ridgeway's conviction
and permanently stayed the proceedings against him. Some of the judges
indicated that legislation would be needed in order to permit the conduct
of controlled operations.
Details of the background to the 1995 Bill and the provisions of the
Bill can be found in Bills Digest No.29 of 1995-96. The Digest is also
available on PDBS. Further information about the decision in Ridgeway
can be obtained from the PRS Research Note No.47 entitled 'Police Entrapment
- the High Court's decision in Ridgeway v. The Queen.'
The 1995 Bill passed the House of Representatives on 22 August 1995.
In the Senate it was referred to the Senate Legal and Constitutional Legislation
Committee. The Committee reported in September 1995. Its report acknowledged:
- the 'insidious social evil'(4) represented by the importation of illegal
drugs into Australia,
- the fact that 'controlled operations properly employed are a well
known and well used police mechanism,'(5)
- that evidence had been presented to the Committee that the 'legislation
would encourage the growth of corruption within the law enforcement
agencies.'
The Committee concluded that the general thrust of the Bill was correct
but recommended the addition of the following safeguards:
- a provision clarifying that the Bill does not permit entrapment,
- a provision 'clarifying that it [the legislation] does not in any
way remove from a court its inherent and constitutional power and duty
to ensure that justice is done in the conduct of the matter before it,
including the power to terminate or stay proceedings'(6) ,
- that at the end of the controlled operation a written statement must
be furnished by the authorising officer stating who holds custody of
the narcotic goods and whether they have been destroyed. Further, that
information about the type, quantity and whereabouts of the narcotic
goods should be provided by the Minister to Parliament.(7)
On 8 May 1996, the present Government introduced the Crimes (Controlled
Operations) Bill 1996 into the Senate. The 1996 Bill is largely the same
as the 1995 Bill. However, according to the Bill's Second Reading Speech
it 'includes a number of significant improvements.'
Definitions
New subsection 3(1) defines 'law enforcement officer' as a member
of the Australian Federal Police, a member of a State or Territory police
force, a staff member of the National Crime Authority, an Australian Customs
Service officer or a member of a foreign police force or law enforcement
agency.
New subsection 3(1) defines the expression 'narcotic goods offence'
as certain offences under the Customs Act 1901, the Crimes (Traffic
in Narcotic Drugs and Psychotropic Substances) Act 1990, certain offences
against State and Territory narcotics laws and 'associated offences.'(8)
New subsection 3(1) inserts a definition not contained in the
1995 Bill. This is the definition of 'person targeted.' In the context
of a controlled operation the 'person targeted' is the person about whom
evidence has been collected or will be collected in the course of a controlled
operation.
Objects of the Bill
New section 15G recites the objects of the Bill. An addition
found in new section 15G(1)(b) of the 1996 Bill is that an object
of the Bill is to require the Commissioner of the Australian Federal Police
and the Chairperson of the National Crime Authority to report to the Minister
not only on requests to authorise controlled operations but on the action
taken as a result of those authorisations.
New section 15G(2) states that, subject to new section 15W(9)
, the amendments are not intended to limit the discretion of a court to
exclude evidence in criminal proceedings or to stay criminal proceedings
in the interests of justice. This provision had no counterpart in the
1995 Bill.
New section 15H defines a controlled operation. A controlled
operation is an operation involving law enforcement officers, carried
out in order to obtain evidence that may lead to the prosecution of a
person for an offence against section 233B of the Customs Act 1901
or an associated offence. Such an operation may involve law enforcement
officers in conduct that, if not excused by the Bill, would constitute
a narcotics goods offence.
New section 15I provides that if a law enforcement officer is
involved in a controlled operation and engaged in conduct that would otherwise
constitute a narcotic goods offence, he or she is not liable for the offence
if there is a certificate in force authorising the operation.
However, the law enforcement officer will not be given the immunity
of new section 15I if:
- the officer intentionally induces the target of the controlled operation
to commit an offence against section 233B(10) of the Customs Act
1901 or an associated offence; and
- the person would not otherwise have had the intent to commit the
offence (new subsection 15I(2). New subsection 15I(2)
had no counterpart in the 1995 Bill).
New subsection 15I(6) provides that goods imported into Australia
as part of a controlled operation remain goods imported in contravention
of the Customs Act 1901 - in other words, the goods will still
be prohibited imports for the purpose of prosecuting the target of the
controlled operation.
Authorising a controlled operation
New section 15J provides that a certificate authorising a controlled
operation must be obtained from the Commissioner, a Deputy Commissioner
or an Assistant Commissioner of the Australian Federal Police or a member
of the National Crime Authority.
The form and contents of an application for a controlled operation
New section 15K provides that an application for a controlled
operation must be in writing, state whether a previous application has
been made for the operation and the fate of that application, and contain
information required by the authorising officer.
Neither new section 15K nor new section 15M require information
to be given about the persons who will be involved in the controlled operation,
nor is it a requirement that the applicant provide to the authorising
officer all the details available about the controlled operation.
Urgent applications
New section 15L provides for urgent applications. An urgent application
may be sought if the applicant believes that the normal section 15K procedure
would jeopardise the success of the controlled operation. The information
to be supplied to the authorising officer is the same as that to be provided
under new section 15K. However, the application need not be in
writing. It can be made in person, over the telephone or by any other
means of communication. The authorising officer must communicate his or
her decision to the applicant as soon as possible.
If the application is granted:
- the authorising officer must give the applicant a certificate as soon
as possible;
- the applicant must submit a written application complying with new
section 15K to the authorising officer as soon as possible.
The grounds for giving a controlled operations certificate
Before granting an authorising certificate, the authorising officer
must be satisfied of all of the following matters:
- that he or she has been given any information known to the applicant
about the nature and quality of the relevant narcotic goods,
- that the target of the controlled operation would be likely to commit
a relevant offence whether or not the controlled operation occurs,
- that the controlled operation will make it easier to obtain evidence
that will lead to a prosecution,
- that any narcotic goods in Australia at the end of the controlled
operation will be under the control of an Australian law enforcement
officer.
What does a certificate authorising a controlled operation have to contain?
New section 15N requires an authorising certificate to be in
writing and signed by the authorising officer. The certificate must also
contain specified information including the name of the applicant, a description
of the controlled operation and the date of the certificate's expiry.
The certificate's date of expiration cannot be more than 30 days after
the day on which it was given.
Importantly, failure to comply with new section 15N does not
affect the validity of a certificate authorising a controlled operation
(new subsection 15N(5)).
Notification of the Australian Customs Service
If an authorised controlled operation will involve goods being dealt
with by the Australian Customs Service, then new section 15Q provides
for the Chief Executive Officer of the Australian Customs Service to be
notified.
What information must be provided to the Minister about controlled operations?
New section 15R provides that the Minister must be informed as
soon as practicable that a controlled operation has been authorised and
reasons for the authorisation. New subsection 15R(3) provides that
the reasons must include an indication of the extent to which the authorising
officer took account of the seriousness of the criminal activities of
the target of the controlled operation or their associates. There was
no equivalent to new subsection 15R(3) in the 1995 Bill.
New section 15S provides that a written report must be provided
to the Minister about whether an authorised controlled operation was carried
out, the nature and quantity of narcotic goods involved in the operation,
whether the narcotic goods have been destroyed and if, not, who has possession
of them. Information about the identity of a person involved in the controlled
operation who had or has possession of narcotic goods which have not yet
been destroyed need not be provided to the Minister if it would endanger
the safety of the person or prejudice an investigation or prosecution.
There was no equivalent to new section 15S in the 1995 Bill.
Reporting to Parliament
New Section 15T provides that the Minister must make an annual
report to Parliament about controlled operations. The information to be
included in the report is specified in new subsection 15T(2). The
information includes the date of the application for authorisation, the
decision made, and the reasons for the decision. The report must also
incorporate the information contained in the reports given to the Minister
under new section 15S. This last requirement had no equivalent
in the 1995 Bill.
There is provision in new subsection 15T(4) that if the Minister
considers that information provided to him or her is likely to endanger
the safety of a person or prejudice an investigation or prosecution, then
the Minister must exclude that information from the report to Parliament.
However, it must be provided to Parliament when the Minister considers
that the information will not endanger safety or prejudice a prosecution
or investigation.
What about pre-existing controlled operations? - New Division 3
New section 15V provides that if evidence has been obtained as
a result of a controlled operation conducted under the 1987 Ministerial
Agreement between the Minister for Industry, Technology and Commerce and
the Special Minister of State, then the Minister may issue a certificate
covering that operation.
New section 15W provides that evidence of the illegal importation
of narcotics by law enforcement officers is not to be rejected because
at the time of the importation those law enforcement officers were engaging
in illegal conduct.
New Division 3 has a retrospective operation. Its purpose is
to enable prosecutions involving controlled operations which were undertaken
before the commencement of the Crimes Amendment (Controlled Operations)
Bill 1996 to proceed. At present, these prosecutions might fail because
they involved the unlawful importation of narcotics by law enforcement
agents - with the result that this evidence would be likely to be excluded
on the basis of Ridgeway's case.
According to the Minister's Second Reading Speech, a number of current
prosecutions involving controlled operations and charges relating to the
importation of cocaine and heroin will be abandoned if the Bill is not
passed.
Remarks
The contents of an application for a controlled operation
The Bill does not make clear what information must be exchanged by the
applicant for a controlled operations certificate and the authorising
officer. The contents of an application as provided by new section
15K are minimal. New section 15M specifies what the authorising
officer must be satisfied about before issuing a certificate. However,
it is unclear how the authorising officer is to be satisfied about those
matters. In a submission made to the Senate Legal and Constitutional Legislation
Committee in 1995, the South Australian Bar Association recommended that
any application for a certificate should include:
Any and all details available to that applicant concerning the nature
and scope of the operation including but not limited to:
- the nature and quantity of the narcotic goods to which the operation
relates;
- the persons who will be involved in the operation.
Importantly, all these details should appear on the fact of the certificate
and must be strictly complied with. Section 15K(d) is not sufficient in
that it does not require neither of [sic] the applicant, nor the authorising
officer to exchange all relevant information.(11)
While the reasons to be given to the Minister in support of an authorisation
mention the 'seriousness of the criminal activities' of the person targeted
or their associates, the seriousness of the suspected offence is not a
matter that must be stated in an application for a controlled operations
certificate or as a matter that an authorising officer must be satisfied
of.
Authorisation of controlled operations
Concerns were expressed in evidence before the Senate Legal and Constitutional
Legislation Committee about the criteria for issuing a certificate authorising
a controlled operation. Maurie Stack from the Law Society of NSW said:
The criteria for issuing any certificates should include consideration
of whether alternative methods of investigation are capable of providing
sufficient evidence for police to lay charges (as per the Telecommunications
(Interception) Act) and should also take into account the gravity
of the suspected offence.(12)
Neither the applicant for authorisation nor the authorising officer
are required to be satisfied that alternative methods of proceeding are
unavailable. In relation to the 1995 Bill, the Australian Law Reform Commission
commented:
if law enforcement officers are so convinced as to a suspect's
proclivity to engage, or actual engagement in criminal activity, why is
it necessary for them to take such extreme action as is contemplated in
this bill in order to apprehend the suspect. Presumably, the law enforcers'
conviction as to the suspect's involvement in criminal activity is born
of intense surveillance or other forms of information gathering that have
resulted in the compilation of a body of evidence that points to their
guilt. Where, indeed this is the case, then surely the alternative (long
standing and less extreme) device of 'monitoring and responding' would
be quite sufficient?(13)
Another alternative approach to police organising and participating
in what would otherwise be criminal activity would be to pursue other
charges against suspects which may result in substantial penalties such
as conspiracy or attempt.
During the debates about the Crimes Amendment (Controlled Operations)
Bill 1995, one of the issues raised was the authorisation of controlled
operations by law enforcement officials. Some argued that an independent
judicial officer, rather than a law enforcement officer, should authorise
or reject an application for a controlled operation.
Among those presenting this argument for consideration was the present
Attorney-General who said:
It is of concern to me that the bill, in substance, seems to authorise
police to authorise other police to conduct illegal operations in conjunction
with persons who are believed to be criminals.
The telecommunications interception laws(14) are, in some ways, similar
to the proposed controlled operations provisions of this bill. They involve
the balancing of important competing interests. In the case of the telecommunications
interception laws, these are the interests of the investigation, apprehension,
prosecution and conviction of people engaged in serious major organised
crime on the one hand and the priceless rights of privacy and freedom
of speech on the other.
I urge the minister to consider amending the bill so that an application
for a certificate to conduct a controlled operation is made to a senior
judicial officer.(15)
A number of reasons can advanced in support of the view that an independent
judicial officer rather than a senior law enforcement officer should consider
an application for authorisation of a controlled operation. Among them
are:
- the need for an independent assessment of an application, especially
in view of the potential for police corruption and that fact that a
controlled operation involves the police in what would otherwise be
illegal conduct of a serious nature,
- the need for a careful balancing of the rights of citizens as against
the needs of law enforcement agencies,
- the cautionary words of Brennan J (as he then was) in the High Court
in Ridgeway who referred to the possibility in any legislative
scheme of 'anomalies, if not corruption, in the absence of adequate
supervision',
- the need to maintain public confidence in the integrity of law enforcement
services.
The Crimes Amendment (Controlled Operations) Bill 1996 does not contain
provision for the use of independent judicial officers to consider applications
for controlled operations certificates. It is not entirely clear why this
is so. If, despite the High Court's decision in Grollo v. Commissioner
of Australian Federal Police,(16) there remain real concerns about
separation of power issues, then another approach might be to use retired
judges as persons to whom an application for a certificate is made.
Reporting on controlled operations
Under new section 15S, the identity of certain persons involved
in controlled operations can be withheld from the Minister by the authorising
officer if that officer believes that disclosure would endanger the safety
of the person or prejudice an investigation or prosecution. However, there
is no requirement that this information is to be provided to the Minister
when the authorising officer considers that the likelihood of danger or
prejudice has passed. This can be contrasted with new section 15T
which provides that if the Minister excludes certain information from
his or her report to Parliament, then it must be provided when the Minister
considers that the danger or prejudice has passed.
There is no requirement in either the reporting regime to the Minister
or the reporting regime to Parliament that the legal outcomes of controlled
operations must be provided. Legal outcomes might include the laying of
charges, the nature of charges laid, and the results of prosecutions instituted
as a result of controlled operations. Without such information, it will
be difficult to assess the efficacy of the controlled operations regime.
(1) Ridgeway v. The Queen concerned a controlled operation involving
heroin importation conducted by the Australian Federal Police in association
with the Royal Malaysian Police Force.
As a result of the controlled operation, Ridgeway was convicted in the
District Court of South Australia of having a prohibited import in his
possession without reasonable excuse. The prohibited import in question
was a traffickable quantity of heroin.
The background to the case was as follows. Ridgeway had contacted a
Malaysian man named Lee to discuss the purchase of heroin in Malaysia.
Unknown to Ridgeway, Lee was a police informer. Lee passed on the information
and the AFP and the Royal Malaysian Police Force arranged for the heroin
to be purchased and brought into Australia, to clear Customs and then
be passed to Ridgeway who was arrested.
Ridgeway appealed against his conviction to the High Court of Australia.
By a majority, the High Court found that the evidence of Ridgeway's offence
was so tainted by the illegal police operation, that it should be excluded.
The High Court quashed the conviction and ordered a permanent stay of
the proceedings against him.
The High Court found that the Customs Act 1901 provided no exemption
for the conduct engaged in by the police and stated that exemptions for
controlled operations were a matter for Parliament.
The Labor Government announced that it would introduce legislation to
enable controlled operations to occur. The Government's Justice Statement
of May 1995 stated:
The police sometimes need to engage in import or export of drugs in
order to identify and prosecute trafficking ringleaders, who often conceal
their identities and location by using a chain of couriers and intermediaries
to carry the goods. By facilitating, or when necessary by carrying out
the transport of drugs, police can often identify the ringleaders ...
The Government has a responsibility to Australians to ensure that the
police have the tools to properly tackle crime.
(2) Ridgeway v. R (1995) 129 ALR 41 at 86-7.
(3) Ibid at 57.
(4) Senate Legal and Constitutional Legislation Committee, Report.
Crimes (Controlled Operations) Bill 1995, September 1995, p.28.
(5) Ibid.
(6) Ibid.
(7) Ibid, pp.28-29.
(8) 'Associated offences' are also defined in new subsection 3(1). They
include certain offences under the Customs Act 1901, certain ancillary
offences.
(9) New section 15W provides that in relation to controlled operations
authorised under the 1987 Ministerial Agreement, the court does not have
a discretion to exclude evidence solely on the basis that it was illegally
obtained.
(10) Section 233B of the Customs Act 1901 provides for the following
offences: importing or attempting to import narcotic goods; possessing
or attempting to possess imported narcotic goods; conspiring to import
narcotic goods; aiding, abetting, counselling or procuring the importation
of narcotic goods.
(11) Submissions to the Senate Legal and Constitutional Legislation
Committee, Crimes Amendment (Controlled Operations) Bill 1995, Submissions
on behalf of the South Australian Bar Association, p.29.
(12) Senate Legal and Constitutional Committee, Report, op.cit,
p.22.
(13) Senate Legal and Constitutional Legislation Committee, Crimes
Amendment (Controlled Operations) Bill 1995. Submissions, Australian
Law Reform Commission Submission, p.54.
(14) The legislative scheme contained in the Telecommunications (Interception)
Act 1979 provides that a judicial officer appointed persona designata
is the person responsible for authorising telephone intercept warrants.
(15) Mr D Williams QC, MP, Parliamentary Debates. House of Representatives,
22 August 1995.
(16) (1995) 131 ALR 225.
Jennifer Norberry Ph. 06 277 2476
27 May 1996
Bills Digest Service
Parliamentary Research Service
This Digest does not have any official legal status. Other sources should
be consulted to determine whether the Bill has been enacted and, if so,
whether the subsequent Act reflects further amendments.
PRS staff are available to discuss the paper's contents with Senators
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ISSN 1323-9032
© Commonwealth of Australia 1996
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Last updated: 27 May 1996
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