|
Recommendation 1: That the Government recommend to the Standing Committee
of Attorneys-General that uniform controlled operations legislation be
enacted by the Commonwealth, States and Territories in terms similar to
the Law Enforcement (Controlled Operations) Act 1997 (NSW) subject
to the foreshadowed amendments in the Finlay Review Report and the further
recommendations in this report. (Paragraph 3.43)
Recommendation 2: That, if uniform controlled operations legislation
cannot be secured then:
(a) the Government call for those States and Territories that do not
have controlled operations legislation, to enact such legislation as
is necessary for the NCA to authorise and conduct controlled operations
in each jurisdiction;
(b) the Government call for those States and Territories that allow
officers of a State or Territory agency (eg police service) to authorise
controlled operations to amend their legislation to allow NCA members
to authorise their own controlled operations. (Paragraph 3.43)
Recommendation 3: That a two tiered approval process be established for
the authorisation of controlled operations under Part 1AB of the Crimes
Act 1914:
(i) Applications for minor controlled operations should be subject
to an in-house approval regime. That is, a law enforcement officer in
charge of a controlled operation may apply to the Commissioner, a Deputy
Commissioner or an Assistant Commissioner of the AFP or to a member
of the NCA for a certificate authorising a controlled operation. Minor
controlled operations are to be defined as short-term investigations
(not exceeding one month's duration) involving minimal contact between
a covert operative and a suspect or suspects, where law enforcement
officers are required to engage in activities involving unlawfulness
of a technical nature. If a minor controlled operation exceeds one month's
duration, it should be re-classified as a longer-term operation and
subject to the external approval process set out in paragraph (ii).
(ii) Applications for longer-term controlled operations should be subject
to an external approval process. The function of determining applications
for longer-term controlled operations should be transferred to the office
of the Inspector-General of the NCA as described in recommendation 19
of the Committee's 1998 report Third Evaluation of the National Crime
Authority. Should the Government not accede to the establishment
of an Inspector-General for the NCA, then the power to approve longer-term
controlled operations should be conferred on such other independent
authority as the Government sees fit, such as the AAT.
Nothing in this recommendation should affect the ability of law enforcement
agencies to make urgent applications for a certificate authorising a controlled
operation in accordance with section 15L of Part 1AB of the Crimes
Act 1914. Urgent applications should be able to be made in-house either
in person, by telephone or by any other means of communication in respect
of both minor and longer-term controlled operations. In particular, the
requirements in sections 15L(5) and (6) for the follow-up provision of
a written application and certificate in relation to urgent applications
should be retained. These written records will be subject to the stringent
accountability processes outlined in Recommendation 10. (Paragraph 4.74)
Recommendation 4: That law enforcement agencies devise appropriate training
and education courses in relation to the operations of the controlled
operations legislative regime. (Paragraph 4.74)
Recommendation 5: That those States and Territories that have enacted
specific controlled operations legislation should make appropriate amendments
to allow the NCA Chairperson and Members to authorise controlled operations
certificates. (Paragraph 4.77)
Recommendation 6: That the standard of satisfaction required by the authorising
officer in relation to the preconditions in section 15M of Part 1AB of
the Crimes Act 1914 should be expressed in such terms as `reasonably
satisfied' or `satisfied on reasonable grounds'. (Paragraph 4.83)
Recommendation 7: That the `no entrapment' test in section 15M(b) of
Part 1AB of the Crimes Act 1914 be enunciated with greater clarity.
(Paragraph 4.86)
Recommendation 8: That in relation to the precondition in section 15M(d)
of Part 1AB of the Crimes Act 1914 the paragraph be reworded to
better reflect the need for operational flexibility by relevant law enforcement
agencies. (Paragraph 4.88)
Recommendation 9: That section 15M of Part 1AB of the Crimes Act 1914
be amended to adopt similar conditions to those contained in paragraphs
6(3)(b) and (c) of the Law Enforcement (Controlled Operations) Act
1997 (NSW) that the nature and extent of the suspected criminal activity
or corrupt conduct are such as to justify the conduct of a controlled
operation and the proposed controlled activities. (Paragraph 4.91)
Recommendation 10: That there be an appropriate system of accountability
provided within the legislative regime of controlled operations involving
oversight by the Commonwealth Ombudsman. The oversight should be in identical
terms to that required of the NSW Ombudsman under the Law Enforcement
(Controlled Operations) Act 1997 (NSW). (Paragraph 5.53)
Recommendation 11: In order that the Parliament be appropriately involved
in discharging its responsibility for scrutiny under the legislation there
should be a requirement placed on the Ombudsman to annually brief the
Parliamentary Joint Committee on the National Crime Authority on a confidential
basis in relation to the Authority's involvement in controlled operations.
(Paragraph 5.53)
Recommendation 12: That the scope of the definition of `controlled operations'
in Part 1AB of the Crimes Act 1914 should be widened to refer to
operations carried out for the purpose of obtaining evidence that may
lead to the prosecution of a person for theft, fraud, tax evasion, currency
violations, illegal drug dealings, illegal gambling, obtaining a financial
benefit by vice engaged in by others, extortion, violence, bribery or
corruption of, or by, an officer of the Commonwealth, an officer of a
State or an officer of a Territory, bankruptcy and company violations,
dealings or illegal importation or exportation of fauna into or out of
Australia, money laundering and people trafficking. (Paragraph 6.50)
Recommendation 13: (i) That the immunity conferred on covert operatives
should be widened commensurately with the scope of controlled operations
to confer immunity from criminal liability on any person authorised to
participate in a controlled operation in terms of sections 16 of the Law
Enforcement (Controlled Operations) Act 1997 (NSW). As prescribed
in section 16 of that Act, immunity should only be available where the
unlawful activity engaged in has been authorised by and is engaged in
in accordance with the Authority for the operation. (Paragraph 6.50)
(ii) The Commonwealth Act should be amended to include a provision in
terms of section 19 of the NSW Act to immune covert operatives from civil
liability. As prescribed in section 19 of that Act, immunity from civil
liability should only be available where the conduct engaged in was in
good faith and for the purpose of executing the provisions of the Act
regulating controlled operations. (Paragraph 6.50)
(iii) The Commonwealth Act should also be amended to include a provision
expressly acknowledging that where an individual suffers loss or injury
as a result of a controlled operation an action can be maintained against
the State for compensation in respect of that loss or injury. (Paragraph
6.50)
Recommendation 14: That the timeframe for which an authority to conduct
a controlled operation may remain in force be extended to three months.
If an investigation exceeds that timeframe, law enforcement agencies must
apply for a new certificate in respect of the same investigation. (Paragraph
6.63)
Recommendation 15: That Part 1AB of the Crimes Act 1914 be amended
to include a provision to allow for the retrospective authorisation of
controlled operations only where the life or safety of a covert operative
is at risk, in terms of section 14 of the Law Enforcement (Controlled
Operations) Act 1997. In particular, the amendment should include
the conditions that the relevant unlawful conduct was engaged in only
for the purpose of protecting an operative or other person from death
or serious injury and that the application must be made within 24 hours
of the unlawful conduct having been engaged in. (Paragraph 6.85)
Recommendation 16: That Part 1AB of the Crimes Act 1914 be amended
to include a provision to authorise the participation of civilians in
controlled operations. The term `civilians' should be defined so as to
exclude those persons who are police informants or who become involved
in a controlled operation by reason of their having knowledge, position
or influence as a consequence of their own involvement in criminal activities.
The position of that class of civilians should remain subject to the current
system of retrospective indemnities and assistance at the time of sentencing
that operates according to the discretion of the Director of Public Prosecutions.
(Paragraph 6.140)
Top
|