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Chapter 3
The Impact of the Current Legislative Regime on the Operations of the
NCA
3.1 As described in Chapter 1, there are a range of approaches by the
various Australian jurisdictions to the issue of controlled operations.
In this chapter, the Committee discusses the implications of this situation
for the NCA's current operations and also the options for reform.
Cross jurisdictional operations
Operational problems
3.2 The NCA informed the Committee that the lack of uniformity throughout
Australian jurisdictions causes the NCA major difficulties when it is
involved in operations that are cross-jurisdictional in nature or cross
jurisdictional lines. As stated by NCA Operations Manager, Mr Peter Lamb:
We are currently targeting interstate trafficking networks. Sydney
is the hub of the heroin trade in this country. Whilst a lot of the
heroin may not be imported into Sydney, it will come here to get brokered
at the very least. Taking it out of Sydney to the other states and attacking
that network is as important as the barrier itself. It is there that
you learn about who the major profit takers are, you learn about the
networks, you learn about the individuals and groups involved. But simply
put, taking it from jurisdiction to jurisdiction is an absolute nightmare.
[1]
3.3 The Criminal Justice Commission submitted that:
The NCA suffers from the additional burden that in the absence of uniform
Commonwealth legislation it must conduct its operations in accordance
with State and Territory law which varies considerably from jurisdiction
to jurisdiction. In the present case some jurisdictions have no legislation
whatsoever which authorises undercover operations for the purpose of
obtaining evidence of criminal activity.
Not only is this an administrative burden for the NCA but is extremely
cumbersome when an investigation concerns criminal activity which transcends
State and Territory borders as the NCA's operations frequently do. [2]
3.4 The absence of controlled operations legislation in any particular
State, for example Queensland, poses particular problems for the NCA in
the context of its cross-jurisdictional operations:
As I said before, we do not have controlled operations legislation
in this state. Where the National Crime Authority is involved in joint
or collaborative arrangements with the Crime Commission, that represents
a gap in its ability to track offenders from other states across the
borders into Queensland. [3]
NCA denied power to issue certificates
3.5 Although the NCA can issue its own certificates when conducting controlled
operations under the Commonwealth Crimes Act, it is not able to
do so under the various State legislative regimes. Several submissions
claimed that the inability of the NCA to issue its own controlled operations
certificates under State legislation adversely affects the NCA's operational
capacity:
… the majority of the narcotics trade takes place in Sydney. However,
the NCA is not included in the Law Enforcement (Controlled Operations)
Act 1997 (NSW) though that legislation is currently under review.
Accordingly, controlled operations cannot be approved under the legislation
by the NCA Chairperson or Members. As a result, the NCA has a lesser
ability to conduct controlled operations than its operational partners
in New South Wales. It is undesirable for the NCA to be placed in a
position of being less effective than it ought to be due to the uneven
operation of Commonwealth and State law. [4]
3.6 This was confirmed by the findings of the Finlay Review of the NSW
Act:
This multi-jurisdictional capacity of the NCA is a unique feature in
Australian Law Enforcement and one of the underpinning reasons for the
NCA being created. As it stands the Act substantially restricts the
NCA in the performance of its role within the State both operationally
and strategically. The pivotal importance of Sydney, in terms of Australian
organised crime dynamics means that the NCA's capacity to make any reasonable
strategic impact at the National level is also severely impeded. [5]
3.7 Although the NCA's involvement in controlled operations can be achieved
by engaging officers of the State in which it wants to conduct a controlled
operation, the approval process is undertaken through the relevant State
police service in accordance with the legislation in that jurisdiction.
It was claimed that the requirement for the NCA, when conducting operations
under State legislation, to obtain approval through an external agency
such as the NSW Police Service, is inconsistent with the perception of
the NCA as an independent entity. [6] Similarly,
where the NCA conducts joint operations with the NSW Crime Commission
under the NSW legislation, the Chair of the NSW Crime Commission has to
issue the authority because the NCA has no power to issue an authority
itself. It was submitted that it is appropriate for the NCA to be able
to issue its own certificates. [7]
Absence of uniform controlled operations coverage for covert police
operatives
3.8 In States and Territories where there is no specific legislation
governing controlled operations, NCA officers are in the same uncertain
situation as officers of the police services of those jurisdictions. If
directed by their superiors to act in an undercover capacity, such officers
who commit what would otherwise be offences are criminally liable for
those offences. In those situations, the officers must rely on the discretion
of the Director of Public Prosecutions in that State or Territory. Referring
to the situation in Queensland, Mr Brendan Butler, Chairperson of the
Criminal Justice Commission submitted:
It is totally unconscionable that law enforcement officers in this
State are expected every day to engage in conduct which renders them
liable to criminal prosecution.
And again:
The NCA suffers from the additional burden that in the absence of uniform
Commonwealth legislation it must conduct its operations in accordance
with State and Territory law which varies considerably from jurisdiction
to jurisdiction. In the present case some jurisdictions have no legislation
whatsoever which authorises undercover operations for the purpose of
obtaining evidence of criminal activity. [8]
3.9 The lack of protection afforded to police operatives is also an issue
in terms of the kinds of offences in respect of which exemption is granted
under Part 1AB. The Commonwealth Director of Public Prosecutions pointed
out that the protection afforded to police operatives under the Commonwealth
legislation as it currently stands is inadequate. In the view of the DPP,
a major deficiency of Part 1AB of the Crimes Act 1904 is that the
exemption from criminal liability afforded by a controlled operations
certificate does not extend to State and Territory offences involving
the supply of narcotic goods.
3.10 The objective of most controlled operations involving the importation
of narcotics is to identify the persons who arranged the importation.
The usual scenario for the issue of a certificate is where narcotic goods
are detected at the customs barrier in circumstances where police had
no prior knowledge of the importation. To identify the person behind the
importation of the drugs, the controlled operation usually involves the
supply of the imported narcotics to the intended recipient in circumstances
where the police would have committed an offence under State or Territory
law of supply.
3.11 One of the rationales behind the enactment of Part 1AB was to provide
police with the authority to engage in otherwise unlawful conduct where
the police objective in doing so was to frustrate the criminal activity
under investigation. The DPP claims that the lack of coverage for offences
involving the supply of narcotics means that an important objective of
the legislation has not been met:
Given that most controlled operations will require the police to engage
in conduct which will involve the supply of narcotic goods to the target
of the operation, it is illogical to provide police with only a partial
exemption from criminal liability. In that regard, were the police to
decide not to conduct any controlled operations which would require
the police committing offences relating to the supply of narcotic goods
it will be obvious that there would be very few controlled operations.
As a consequence, it would become far more difficult to investigate
and successfully prosecute those who organise and finance drug importations.
[9]
Evidentiary issues arising in absence of uniform legislative coverage
Coverage limited to narcotics offences
3.12 The effect of the Ridgeway decision is that if police officers
commit offences during the course of investigations and there is no special
or statutory immunity available, the evidence so obtained may be tainted
and therefore subject to the judicial discretion to exclude such evidence
from any subsequent criminal proceedings. This has the practical effect
of jeopardising all prosecutions that might result from police investigations
that require police to participate in criminal activities. [10]
The NCA identified the problem that exists with the current form of the
Commonwealth scheme in Part 1AB of the Crimes Act:
By legislating in relation to one set of offences only, the Parliament
leaves the admissibility of evidence in all other areas to judicial
discretion, the exercise of which is unappealable by the prosecution.
But there is at least an implied assumption that other unauthorised
conduct by law enforcement agencies is sanctioned. The question arises
whether this is a satisfactory situation. Should Parliament be concerned
about protecting investigations in narcotics investigations only? Or
should a broader perspective be taken? In our view the answer is obviously
`yes' because the courts should be given clear guidance by the Parliament
of what is acceptable behaviour and, therefore, which evidence should
be admissible. [11]
Coverage limited to certain jurisdictions
3.13 Similar arguments apply in relation to the admissibility of evidence
in different jurisdictions. In the absence of uniform legislative coverage
of controlled operations throughout Australia, the success of NCA operations,
which are generally multi-jurisdictional and international, may be jeopardised.
The NCA points out that at the early stage of an investigation it can
be difficult to foresee whether a Commonwealth or State controlled certificate
is more appropriate. Investigators have to predict whether the investigation
will result in Commonwealth or State charges. If a certificate is issued
under the Commonwealth scheme, for example, and State charges are eventually
preferred, then the risk arises that the evidence obtained in the investigation
may be excluded. [12]
3.14 Similarly, if a certificate is obtained under the NSW Act, but the
investigation leads to the involvement of police officers in criminal
activities in Queensland, the same risk of judicial exclusion may arise
if charges must eventually be laid under either Queensland or Commonwealth
legislation.
Cross jurisdictional problems in terms of Commonwealth-State differences
in offences
3.15 Cross-jurisdictional problems exist in terms of the delineation
between Commonwealth and State offences as well as cross-border differences
between controlled operations legislative regimes. In relation to the
example of money laundering, it was noted that:
Money laundering as an offence is generally reflected in Commonwealth
legislation, in the Proceeds of Crime Act, sections 81 and 82. Some
of the states do have equivalent provisions, but the South Australian
act does not apply in respect of Commonwealth offences. So while it
may be possible to deal with the trafficking of drugs or some other
kind of unlawful activity in South Australia through a controlled operation,
that will not give you coverage in respect of Commonwealth offences.
The only Commonwealth legislation which relates to controlled activities
is limited to narcotics offences under the Customs Act. So the problem
we face is both the delineation between Commonwealth and state offences,
and the jurisdictional dimension. [13]
3.16 NCA Chairperson Mr John Broome referred to the difficulties arising
from the absence of compatible legislation in relation to electronic surveillance
devices. If the NCA wishes to place a listening device on a controlled
delivery of drugs that arrives in Sydney, so that it will know where the
drugs end up, it may have to get approvals under the Crimes Act and
under the NSW Act for controlled operations certificates as well as obtaining
the relevant approval for the surveillance device itself:
If the package is transported by air to Queensland, we have got the
obvious problem that … [I]f it is taken to another state, we may
or may not have problems. If it goes to Victoria, controlled operations
there can be effectively be authorised by police officers of a certain
rank. In any event, the admissibility of any evidence obtained through
a listening device will still depend upon the availability of the relevant
authorisation in the relevant jurisdiction.
So you may find yourself trying to leapfrog around the countryside
in front of an aircraft to get hold of a judge who can issue you with
the relevant approval for a listening device. [14]
3.17 The Attorney-General's Department advised the Committee that it
had identified the difficulties arising from the lack of uniformity of
controlled operations legislation as part of its review of Part 1AB of
the Crimes Act. [15]
Reform options
3.18 The Committee accepts that there are major difficulties for the
NCA's operations arising from the lack of consistency between the Commonwealth
and the State legislative regimes. Throughout the inquiry, the Committee
heard evidence in relation to possible options for reform. Those are:
- the enactment of uniform controlled operations legislation; and
- a return to the pre-Ridgeway position.
Option1: Enactment of uniform controlled operations legislation
3.19 There was widespread support for the adoption of uniform legislation
throughout Australia. The NCA advocated that uniformity is particularly
important in relation to criminal law yet, because it is fundamentally
a State/Territory responsibility, there are huge differences across the
country. Mr Broome said that law enforcement agencies need appropriate
legislative frameworks in which to exercise their powers and responsibilities:
There really is that need for some degree of uniformity and a recognition
across the country that all our jurisdictional boundaries do is assist
criminal activity across state borders. Effectively, we have these invisible
barriers which prevent law enforcement from acting cohesively. The NCA
is the only agency in the country which has a cross-jurisdictional capacity,
and that is one of the real problems. [16]
3.20 Mr Broome noted that uniformity may not be politically achievable.
[17] He warned the Committee that standards
should not be sacrificed for the sake of uniformity and that agreement
on the basis of the lowest common denominator is not acceptable in this
area:
We should set some national benchmarks in relation to this material.
For those states who do not wish to meet that level or cannot for whatever
reason, then so be it. But we should not drag everybody down to a level
where, unless there is total agreement, something cannot take place.
[18]
3.21 The Attorney-General's Department submitted that the cross jurisdictional
problems of the NCA would be overcome by the enactment of uniform controlled
operations legislation by the Commonwealth and each State and Territory.
Uniformity would enable the NCA and other agencies to operate in a certain
and consistent environment. Where an operation crossed borders, the same
information and documentation could be used to seek authorisation under
each jurisdiction. This would obviate the need for the NCA to factor in
the consequences of the widely differing rules when planning and undertaking
an operation. The Department also informed the Committee that the Government
will be pursuing increased consistency in law enforcement legislation
and practice between the Commonwealth, States and Territories. [19]
3.22 If uniformity cannot be achieved, the Department suggested implementing
other measures to minimise the difficulties experienced under the current
non-uniform regime:
- States and Territories without controlled operations legislation that
can confer immunity on NCA staff could enact such legislation, allowing
scope for the authorisation and conduct of NCA controlled operations
in each jurisdiction;
- all jurisdictions should have legislation enabling NCA members to
authorise controlled operations;
- Part 1AB should be amended so that the scope for controlled operations
is not confined to the investigation of specified narcotics offences.
This would remove some of the differences between Part 1AB and the NSW
and SA legislation. [20]
3.23 A representative of the Department, Mr Karl Alderson, said that
removing discrepancies and differences is a central part of the Government's
uniformity project. Mr Alderson also commented that the existing
Commonwealth legislation, in its application to State officers involved
in Commonwealth operations, reflects an intention that Commonwealth and
State officers should operate together. [21]
3.24 The Australian Federal Police Association supported the call for
uniform controlled operations legislation across Australia and thus relieving
agencies from having to `legislation shop'. In the AFPA's view, uniformity
would give certainty to its members who work across a number of jurisdictions.
Currently, the Commonwealth legislation only protects AFPA's members from
limited offences under the Customs Act and the possession of illegal
drugs. Technically, it does not protect them from trafficking under the
State legislation in which they work. [22]
3.25 Similarly, the Police Federation of Australia supported the call
for uniform controlled operations legislation across all jurisdictions,
based on the widest interpretation of controlled operations – that
is `of any criminal offence' as in the NSW model, subject to the current
review of that legislation:
The principal concern of the Police Federation in this matter is for
the immunity of police officers whilst they are working in controlled
operations. The NCA is predominantly staffed by police officers from
state, territory or federal jurisdictions and we believe that all Australian
police officers should have the same level of protection regardless
of which state, territory or federal jurisdiction they work for. Similarly
such police officers should not suffer less protection when working
for such national agencies as the National Crime Authority. [23]
3.26 Mr Terry Collins, Chief Executive Officer of the Police Federation
of Australia distinguished between the concepts of Federal legislation
and national uniformity, noting that Federal legislation is not necessary
to get national uniformity. In other areas, law enforcement agencies in
conjunction with the Police Federation, are moving towards national competencies
and national qualifications, perhaps even registration. Although these
are State prerogatives, there is a national theme developing:
… if you get two that recognise each other and then a third, you
have a blueprint with which the others will catch up and adopt in time,
whether it is professional registration of policing, national competencies,
mobility or controlled operations. That is why, given the movement from
Queensland to look at New South Wales and this opportunity for the NCA
to look at New South Wales … because it seems to be the widest
– then we say, “Good, let that be the national model.”
South Australia only has to remove the word “serious”. They
are then on the national model and, in due course, it will change and
the rising tide lifts all boats. [24]
3.27 Mr Peter Alexander, President of the Police Federation of Australia,
described criminals as being very mobile. He insisted that the criminal's
ability to move freely between jurisdictions and to arrange crimes interstate
on the telephone demands that there be uniformity. A further concern of
the Association is that while police are working as NCA operatives, they
continue to be subject to their own State's disciplinary codes. Therefore,
police doing the same operation could be subject to different sanctions.
When they are working for the Federal government there should be no doubt
about what they can and cannot do [25]:
… I just do not think it is professional for our country to have
a National Crime Authority that picks up all of the different state
jurisdictions and members of state forces who are not working in a generic
scenario. I do not think that is right, as we evolve in law enforcement
in this country. I am getting on my hobbyhorse here. The Constitution
is just totally silent on policing, it is a colony scenario, and here
we are now talking with you people about things which are not even picked
up by the Constitution. Policing was left to the states and territories.
[26]
Uniformity based on the NSW model?
3.28 It is the NCA's view that there should be uniform legislation based
on the NSW model, taking into account the results of the recent review
of the legislation. [27] According to Mr Broome, it has the advantage
of being tested and contains many features worthy of reproduction in the
Commonwealth Act.
3.29 Queensland Crime Commissioner Mr Tim Carmody also preferred the
NSW model as it covers a wider range of offences and has a better accountability
regime:
That is important if you want to ensure that good law enforcement is
not bought at too high a price. You have to be sure that the line is
drawn, not only legislatively but operationally, at the right place.
That is always difficult. There always has to be an area of discretion.
The idea is to make sure that those exercising that discretion know
that their discretion has to be transparently examinable and reviewable
and that they will be accountable for the decisions they make. The experience
is that that has a disciplining effect. If you know that you will be
called to account, you will exercise the discretion you are given so
that it will withstand scrutiny. That has been the practical experience
since the introduction of both the Commonwealth and the New South Wales
schemes. [28]
3.30 Mr Richard Perry, Queensland's Public Interest Monitor, said that
although the NSW model has significant advantages over the Federal legislation,
the NSW model has three areas of weakness: the approval process and the
monitoring and accountability mechanisms. These are dealt with in detail
in Chapters 4 and 5. As a starting point in looking for the right model,
Mr Perry said that the expansion of police powers needs to be accompanied
by the parallel development of accountability mechanisms:
There are a series of parallel factors, each of which has to be looked
upon in the context of the others, so that if you develop wider powers
for law enforcement agencies, it is done only – and I emphasise
`only' – upon the basis of appropriate accountability and reporting
methods. It is in respect of that aspect that I have some criticism
of the New South Wales legislation. [29]
3.31 Dr Tim Anderson for the NSW Council for Civil Liberties said that
the NSW model was one that the Council 'abhors and that there is no need
for'. The Council's principal concern in relation to the current legislative
models (in NSW as well as in SA and the Commonwealth) is that power is
passed across to executive agencies to authorise serious criminal behaviour
prospectively without the benefit of full knowledge of the circumstances
in which the offences will be committed, so that, in effect, the person
has a `green light'. This model contrasts with that where the officer's
actions are assessed or subjected to independent scrutiny after the event:
We have an executive officer of government, head of a secretive agency,
who is now relied on to make those absolutely fundamentally critical
decisions and the parliament is saying, `We are going to trust this
person's decision,' rather than having people subject to a law –
it is one of these old fashioned concepts of people being equal before
the law, whether they are a government agent or not – and the circumstances
being independently scrutinised after the event. [30]
3.32 Dr Anderson criticised the NSW model as having gone through with
very little debate in the State Parliament. He described the process of
its enactment as having involved little more than a request by police
for more powers in post royal commission circumstances and the subsequent
granting of it by the Parliament and both major parties. In Dr Anderson's
view, this was insufficient debate given that, under the legislation,
any form of criminality by law enforcement officers can be authorised
(discounting the provision that bars the retrospective authorisation of
murder). Dr Anderson referred to the words of Chief Justice Mason in the
Ridgeway case:
Circumstances can arise in which the need to discourage unlawful conduct
on the part of the enforcement officers and to preserve the integrity
of the administration of criminal justice outweighs the public interest
in a conviction of those guilty of crime. [31]
3.33 Despite these criticisms, the Committee notes that the review of
the NSW legislation conducted by Mr Mervyn Finlay QC, found that the legislation
is essentially sound but would benefit from some amendment to clarify
its operations. In the course of that review, some of the more extreme
proposals to extend the scheme's operations as sought by law enforcement
agencies were rejected. [32]
A return to pre Ridgeway?
3.34 The NSW Law Society postulated a return to the pre Ridgeway
position. In its 1997 submission to the Minister of Police in relation
to the enactment of the NSW model, the NSW Law Society advised that the
society was fundamentally opposed to legislation that permitted law enforcement
officers to engage in unlawful conduct. Secondly, the Society claimed
that controlled operations legislation was unnecessary as the then existing
law governing undercover police work as stated in the Ridgeway
case, was workable and satisfactory. The society quoted the following
passage from the judgement of Mason CJ, Deane and Dawson JJ:
The effective investigation by the police of some types of criminal
activity may necessarily involve subterfuge, deceit and the intentional
creation of opportunities for the commission by a suspect of a criminal
offence. When those tactics do not involve illegal conduct, their use
will ordinarily be legitimate notwithstanding that they are conducive
to the commission of a criminal offence by a person believed to be engaged
in criminal activity. … A finding that law enforcement officers
have engaged in such clearly improper conduct will not, of course, suffice
of itself to give rise to the discretion to exclude evidence of the
alleged offence or an element of it. As with the case of illegal conduct,
the discretion will only arise if the conduct has procured the commission
of the offence with which the accused is charged. [33]
The Society argued that the evidence in fact indicated that the courts
were admitting evidence rather than excluding it. [34]
3.35 In addition, the Law Society pointed out that operatives and their
supervisors were not being charged either criminally or departmentally
in relation to their activities while working in covert operations. [35] Representing the Law Society at the Committee's
hearings in Sydney, Professor Trevor Nyman pointed out the dangers inherent
in legislation of this nature (referred to in paragraph 2.28) and concluded
that:
3.36 This was expressly rejected by all of the law enforcement agencies.
Mr Carmody, deplored such a suggestion:
What will happen there is that you will have operatives who take risks,
stick their necks out to enforce the law and be left unprotected by
the legislation … We as a society are really asking those civilians
and law enforcement officers who do this difficult and dangerous work
to do something that no-one else in society is expected to do, and that
is, to act nobly and in the best interest of pursuing law enforcement
objectives, without the protection. You do not send firefighters in
to fight a fire without fireproofing them. You do not send law enforcement
officers into a dangerous situation without bulletproofing them. [37]
3.37 Mr Carmody said that pre Ridgeway, law enforcement action
in covert operations was uncontrolled. Risks were taken, unseen and often
undiscovered, and the results were achieved. By contrast, controlled operations
legislation acknowledges the reality of undercover work, that if society
wants to get these outcomes, then police have to be engaged in operations
involving subterfuge, deceit, trickery, infiltration, and sometimes the
commission of criminal offences. Mr Carmody argued that it is unacceptable
that such operations should be uncontrolled. In his view, control is needed
at a level where the control will be effective and where accountability
can have an impact if something goes wrong. [38]
3.38 Mr Brendan Butler, Chairperson of the Criminal Justice Commission,
said it was not possible to 'go back to the future'. The greater awareness
that has developed in relation to controlled operations is part of the
normal development of the law. The enactment of legislation by some States
will have an impact on Queensland being a State that has not yet moved
in that direction. As other States will have legislative guidelines, there
will be a tendency to look for clearer guidelines in Queensland rather
than wanting to rely on judge-made law. Mr Butler advised that law enforcement
should be aiming towards a national scheme of mutual recognition to facilitate
cross border operations and to ensure that police operatives have the
protection of the law and are also accountable for their actions during
controlled operations. [39] He said:
As I said earlier, people in agencies we work with across state borders
who have this legislation in place and who have nice clear guidelines
for their behaviour are going to be increasingly unsettled in dealing
with people in a place like Queensland where there is no legislative
basis, because they will become accustomed to having that legislative
scheme in place. Over time, that will decrease the effectiveness of
agencies in Queensland - whether they be the police service, the NCA
operating in the state sphere, us or the QCC – in our proactive
operations in things like drugs and corruption. [40]
Conclusion
3.39 The National Crime Authority is an outstanding example of cooperative
federalism. It exists only because all State and Territory Governments
reached unanimous agreement in the early 1980s to pass uniform legislation
within their respective jurisdictions to underpin the Commonwealth legislation
establishing the NCA, and thereby provide it with the authority to act
in all Australian jurisdictions.
3.40 The Committee acknowledges that it is the Constitutional and sovereign
right of State and Territory Governments to legislate in relation to law
enforcement of State and Territory offences and to determine the structure
and powers of their police services as they see fit. Those States and
Territories that have not adopted controlled operations legislation for
their own law enforcement personnel may have genuinely held concerns about
its desirability. But, as indicated in footnote 18, Australia's Attorneys-General
acknowledge that policing in the new millennium will require national
and international responses that will necessitate them foregoing the exercise
of certain of their powers in the national interest.
3.41 As the discussion in this chapter has highlighted, the current legislative
regime in relation to controlled operations is far from uniform and it
is clear that this situation has had an adverse impact on the effectiveness
of the NCA. It is absurd that organised crime groups should benefit from
this lack of uniformity while the agency specifically established to thwart
their criminal activities is constrained by it.
3.42 Accordingly, the Committee is recommending the introduction of uniform
controlled operations legislation in Australia. Uniformity would provide
the most supportive environment for the NCA's operations. The Committee
strongly urges those jurisdictions without controlled operations legislation
to give the matter their most earnest consideration on the basis that
they are failing to give their covert operatives, who engage in such work
at great personal risk, the support they deserve.
3.43 Where the ideal of uniformity cannot be achieved, the Committee
is recommending that those jurisdictions which do not currently authorise
NCA controlled operations should introduce appropriate amendments to enable
them to do so.
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.
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.
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Footnotes
[1] Mr Lamb, NCA, Evidence, p. 7
[2] Criminal Justice Commission, Submission
volume, p. 47
[3] Mr Carmody, QCC, Evidence p. 78
[4] National Crime Authority, Submission volume,
p. 100. See also NSW Crime Commission, Submission volume, pp. 1-2. An
in camera submission also made the same point.
[5] Inspector of the Police Integrity Commission,
Review of the Law Enforcement (Controlled Operations) Act 1997 (the
Act), April 1999, p. 13
[6] Hon Tom Barton MLA, Minister for Police
and Corrective Services (QLD), Submission volume, p. 85
[7] NSW Crime Commission, Submission volume,
pp. 1-2
[8] Criminal Justice Commission, Submission
volume, pp. 45-46
[9] Commonwealth DPP, Submission volume, p.
82. Although the NCA could obtain this coverage by applying for a certificate
under the NSW Act, it means that the NCA cannot conduct its own investigations
independently. It also conflicts with the assertion by law enforcement
agencies that there should be national uniformity of controlled operations
legislation as discussed in paragraphs 3.19–3.27.
[10] Not all types of conduct will necessarily
result in the exclusion of evidence. The exercise of the discretion may
involve the court in weighing several factors such as the degree of police
criminality involved and the availability of other like offences for which
the accused could have been prosecuted without the involvement of police
officers in criminal activities. These factors have to be balanced against
the competing public interest in the prosecution and conviction of wrongdoers
for a particular class of offence: See Ridgeway v The Queen 184
CLR 19 at 37 and 43
[11] National Crime Authority, Submission volume,
p. 90
[12] ibid., p. 98
[13] Mr Broome, NCA, Evidence, pp. 7-8
[14] ibid., p. 8
[15] Attorney-General's Department, Submission
volume, p. 120 and Mr Alderson, Evidence, p. 183
[16] Mr Broome, NCA, Evidence, p. 9
[17] This was also the view of Mr Delaney,
Commonwealth DPP, Evidence, p. 181
[18] Mr Broome, NCA, Evidence, p. 9
[19] Attorney-General's Department, Submission
volume, p. 120. It was reported in The Canberra Times on 25 July
1999 that Australia's Attorneys-General had agreed to establish uniform
national laws for the use of listening devices to achieve `seamless surveillance'
of suspects. A report by AAP on 3 November 1999 suggested that Australia's
police ministers had agreed to look at national uniform legislation to
address the Outlaw Motor Cycle Gang issue.
[20] Attorney-General's Department, Submission
volume, p: 120
[21] Mr Alderson, Attorney-General's Department,
Evidence, p. 186
[22] Mr Phelan, AFPA, Evidence, p. 173
[23] Police Federation of Australia, Submission
volume, p. 144
[24] Mr Collins, PFA, Evidence, p. 54
[25] Mr Alexander, PFA, Evidence, p. 44
[26] ibid., pp. 44-45
[27] National Crime Authority, Submission volume,
p. 89
[28] Mr Carmody, QCC, Evidence, p. 79
[29] Mr Perry, PIM, Evidence, p. 120
[30] Dr Anderson, NSWCCL, Evidence, p. 25
[31] Dr Anderson, NSWCCL, Evidence, p. 22
[32] NSW Inspector of the Police Integrity
Commission, Report: Review of the Law Enforcement (Controlled Operations)
Act 1997 (the Act), April 1999
[33] Ridgeway v The Queen (1995) 69
ALJR 484 at 493
[34] The Law Society of NSW, Submission, Attachment,
copy of the Society's submission in relation to the Law Enforcement (Controlled
Operations) Bill 1997, Submission volume pp. 140-141
[35] The Law Society of NSW, Submission, Attachment,
copy of the Society's submission in relation to the Law Enforcement (Controlled
Operations) Bill 1997, Submission volume, p. 141
[36] Professor Trevor Nyman, NSW Law Society,
Evidence, p. 74. Dr Anderson, NSW Council for Civil Liberties, commented:
'We did not see a need for this legislation in the first place'; Evidence,
p. 24. But Dr Anderson went on to say that if there is legislation of
this nature then 'there is a responsibility on the Parliament to codify
the protections the court would have otherwise put in', Evidence, p. 25
[37] Mr Carmody, QCC, Evidence, p. 80
[38] ibid., p. 83
[39] Mr Butler, CJC, Evidence, p. 91
[40] Mr Butler, CJC, Evidence, p. 95
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