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PREFACE
Terms of reference
On 25 March 1999 the Committee resolved to conduct an inquiry into the
involvement of the National Crime Authority (NCA) in controlled operations
with particular reference to:
(a) the extent and manner in which the NCA engages in controlled operations;
(b) the appropriateness of the approvals process for the NCA's involvement
in controlled operations;
(c) the civil liberties implications; and
(d) the adequacy of relevant national and state legislation in relation
to the conduct of controlled operations by the NCA.
The inquiry is being conducted under paragraph 55(1)(d) of the National
Crime Authority Act 1984 which provides the Committee with authority
to examine the environment in which the NCA operates with a view to reporting
to both Houses of the Parliament any reforms it believes should be made
to the NCA's functions, structure, powers and procedures.
The inquiry
On 3 April 1999 the Committee advertised in the national media to invite
submissions from interested persons or organisations. The Committee also
wrote direct to each Commonwealth, State and Territory minister with responsibility
for policing matters and to the chief executive officers of all Commonwealth,
State and Territory law enforcement agencies to draw the inquiry to their
attention and to invite their input.
The Committee received some 17 submissions, details of which are shown
in Appendix 1.
The Committee held four public hearings: in Brisbane on 17 August 1999,
in Sydney on 18 August 1999 and in Canberra on 23 and 27 August 1999.
Details of the witnesses who appeared at these hearings are shown in Appendix
2. Supplementary documentary material was also tabled during the hearings,
details of which are given in Appendix 3. Valuable information was also
provided to the Committee by several witnesses at in camera hearings,
in order to fully brief the Committee while ensuring that matters of operational
sensitivity were not publicly disclosed.
In the course of its inquiry the Committee's attention was drawn to the
National Guidelines for Deployment of Police Undercover Personnel, which
have been adopted by every police service in Australia. As the Committee
understands them, the guidelines deal with the public interest considerations
in relation to the deployment of undercover personnel, as well as addressing
the issues of the suitability, training, safety and well-being of officers
deployed as covert operatives. Acting on advice that the National Guidelines
would be beneficial to its inquiry, the Committee formally requested a
copy from the Australasia and South West Pacific Region Police Commissioners
Conference, which had endorsed the Guidelines in early 1998. Because the
Police Commissioners failed to unanimously agree to the Committee's access
to the document, the request was denied. At a late stage in its inquiry
the Australian Federal Police provided the Committee with the Commissioners'
consent with a brief overview of the guidelines, but on a confidential
basis only.
The matter of the use of the coercive powers of a committee of the Commonwealth
Parliament in such circumstances has been the subject of longstanding
debate but without clear resolution. The Committee has no wish to engage
in confrontation with the States and Territories based on arguments about
the federal nature of the Australian Constitution. Indeed the Committee
acknowledges the significant contribution made voluntarily to its inquiry
by representatives of several State Government agencies. The Committee
would, however, expect that access to the full National Guidelines would
have been of benefit to its inquiry, even if that access had been on a
confidential basis if that was a required condition of the Commissioners.
The Committee records its disappointment that it has had to proceed to
report on this important inquiry without access to the Guidelines.
The report
This report is in 6 chapters. In Chapter 1 the Committee examines the
historical development of controlled operations procedures in Australian
law enforcement. It also describes the content of the controlled operations
legislation which has been introduced in various Australian jurisdictions
and summarises the extent and manner of the NCA's involvement in such
activity.
It was the Committee's original intention to examine the NCA's involvement
in controlled operations only. It had not been the Committee's expectation
to revisit the concept of controlled operations legislation from first
principles, that debate having been extensively undertaken in the 1995
to 1997 period. Nonetheless, several witnesses raised their fundamental
concerns about the merits of controlled operations legislation. Therefore,
the Committee has included details of that discussion in Chapter 2.
In Chapter 3 the Committee summarises the impact of the current legislative
regime on the operations of the NCA. In its deliberations, the Committee
came to the conclusion that the NCA is adversely affected by current arrangements
for the conduct of controlled operations and has made appropriate recommendations
in this respect. Therefore in the final three chapters the Committee discusses
the specific measures it believes are necessary for the proper future
involvement of the NCA in controlled operations.
Acknowledgments
The Committee wishes to express its appreciation to witnesses to its
inquiry. Their frankness in most cases in an area of some sensitivity
has made a considerable contribution to the Committee's understanding
of the issues and has enabled the Committee to bring forward a set of
recommendations which, in its view, will implement a normative model for
the conduct and regulation of controlled operations in the future.
The Committee does wish to express its concern, however, that the representatives
of the Commonwealth Attorney-General's Department who appeared before
it were unable to be of any assistance on questions of particular importance
to the inquiry. While the Committee notes that their reticence may have
been due to their view that the Department did not have a fully developed
opinion which they could confidently express in public, the Committee
would nonetheless have appreciated it if they had made some attempt to
outline the relevant legal and practical considerations or to discuss
the relative merits of alternative options for reform. Advice to the effect
that they were 'looking at the matter' does not help the Committee to
progress its inquiry process.
The Committee also records its appreciation of the efforts of the officers
of the secretariat who assisted it with the conduct of the inquiry and
with the drafting of this report.
Peter Nugent MP
Chair
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