Navigation: Previous Page | Contents | Next Page
Chapter 4
The Approval Process for Controlled Operations
Introduction
4.1 Having confirmed the appropriateness of the NCA's involvement in
controlled operations, the Committee's terms of reference require it to
examine the adequacy of relevant national and state legislation in relation
to the conduct of controlled operations by the NCA. The Committee has
done this by analysing the appropriateness of the essential elements of
the controlled operations regime in Part 1AB of the Crimes Act 1914
against the options currently utilised in the States and those proposed
by inquiry participants. Throughout the inquiry, some important civil
liberties considerations were raised and the Committee has dealt with
this aspect of its terms of reference as and when relevant to the context
of the Committee's analysis of the issues rather than in any cognate sense.
4.2 Although some of the elements overlap, the Committee has found it
convenient to deal with the regime under several discrete headings. In
this chapter, the Committee deals with the approval process for controlled
operations. The Committee then examines the important and related matter
of the accountability system in Chapter 5, before dealing with residual
issues in Chapter 6.
The approval process: Overview issues
4.3 In relation to the approval process of controlled operations, the
following key areas were the focus of much of the discussion:
- the current internal authorisation of controlled operations by the
agencies conducting the operations and options for reform;
- the appropriateness of a tiered authorisation process;
- the inability of the NCA to issue its own certificates under State
controlled operations legislation;
- the matters to be taken into account by those determining an application
for a controlled operation certificate.
The approval processes under the current legislative regimes
4.4 The question of who should authorise certificates for controlled
operations dominated the discussion. The Commonwealth regime provides
for the internal approval of applications as do the regimes under the
various State acts. The Committee was urged to recommend transferring
the approval process to an external agency notwithstanding the concerns
raised by law enforcement agencies about the potential for such a process
of external authorisation to detract from operational efficiency.
The approval process under the Commonwealth legislation
4.5 The approval process of controlled operations certificates under
Part 1AB of the Crimes Act 1914 is an internal one, where law enforcement
officers approach more senior members of their own agency or the agency
conducting the operation. Officers of the AFP, NCA, ACS or of a State
or Territory police force in charge of a controlled operation may apply
to either the Commissioner, Deputy Commissioner or Assistant Commissioner
of the AFP or a member of the NCA (including the Chairperson) for a certificate
authorising a controlled operation.
4.6 Section 15M sets out the preconditions to the issuance of a certificate.
The authorising officer must be satisfied that:
- all available information about the nature and quantity of the narcotic
goods has been provided;
- irrespective of the operation, the target is likely to commit an offence
against section 233B (or an associated offence);
- the operation will make it easier to obtain evidence of the offence;
and
- after the operation, any narcotic goods in Australia will be in the
control of an Australian law enforcement officer.
The approval process under State legislation
New South Wales
4.7 The authorisation process for controlled operations under the Law
Enforcement (Controlled Operations) Act 1997 (NSW) is also an internal
one. An officer of the Police Service, the ICAC, the NSW Crime Commission
or the Police Integrity Commission may apply to their Chief Executive
Officer for authority to conduct a controlled operation. [1] Authorities may not be issued unless a code of
conduct has been prescribed by regulation for that agency.
4.8 To justify issuing an authority, the CEO must be satisfied, amongst
other things, that:
- there are reasonable grounds to suspect criminal or corrupt conduct
within the administrative responsibility of the agency;
- the nature and extent of the criminal or corrupt conduct must justify
the controlled operation; and
- the nature and extent of the controlled activities must be appropriate
to the suspected conduct and can be accounted for in detail under the
reporting requirements of the Act.
The CEO must also have regard to the reliability of information, the
nature and extent of the suspected criminal activity or corrupt conduct
and the duration and likely success of the proposed controlled operation.
4.9 An authority may not be issued where a participant would be induced
to engage in criminal activity or conduct that the participant would not
otherwise engage in or where the health or safety of a person would be
endangered or cause serious loss or damage to property. Authorities must
contain certain particulars including the persons so engaged, the nature
of controlled activities that civilians and officers may engage in and
the period for which the authority is to remain in force. Authorities
may also be renewed.
South Australia
4.10 The approvals process under the Criminal Law (Undercover Operations)
Act 1995 (SA) is also an internal procedure with police superintendents
(or above rank) approving undercover operations for the purpose of gathering
evidence of 'serious criminal behaviour'.
4.11 The preconditions for approving an operation are that the authorising
officer must reasonably suspect that persons are engaging in or about
to engage in serious criminal behaviour. The officer must be satisfied
that the proposed operation is proportionate to the suspected criminal
behaviour, that the means are proportionate to the end and that there
is no undue risk that persons without a predisposition to serious criminal
behaviour will be encouraged to commit an offence.
Victoria
4.12 As set out in paragraph 1.55, while Victoria does not have any legislation
specifically directed at regulating controlled operations, administrative
arrangements and police procedures have been developed on the legislative
base of the Police Regulation Act 1958 (Vic). Under that
Act, the Chief Commissioner of Police derives his power to supervise and
control the Victoria Police and to make and amend orders for the
administration of the police force and the conduct of the force's operations.
The Victoria Police's Operating Procedure Manuals contain the procedures
for the conduct of controlled operations. For the purposes of the Victoria
Police, controlled operations involve the controlled delivery or purchase
of narcotics using either undercover police operatives or police informers.
4.13 The approval process in Victoria is a tiered one although, once
again, an internalised one. Although approval is required for any kind
of covert operation, the method for obtaining approval differs depending
on the level of seriousness of the investigation proposed. Paragraph 5.1.15
of the Manual states that generally approval for a covert operation must
be obtained from either the Covert Investigation Target Committee or Deputy
Commissioner (Operations). The role of the Target Committee is to hear
and determine applications to conduct covert operations. It is comprised
of a chairperson, being an officer in charge of State Crime Squads, and
three other members, being another officer in charge of State Crime Squads,
the Regional Crime Coordinator of the General Policing Department and
the officer in charge of the Covert Investigation Unit. Approval at this
level, however, is not required in relation to minor covert investigations.
These can be authorised by the officer in charge of the Covert Investigation
Unit after consultation with the chairperson of the Committee. [2]
A further tier of approval also exists in relation to controlled operations
to investigate licensing, gaming and other vice-type offences. Approval
for these operations must be obtained from the District Commander. A further
discussion on the Victorian tiered approval process is at paragraphs 4.66-4.67.
[3]
Criticism of the process of in-house approvals
4.14 The chief criticism of the approvals process in the Commonwealth
and State legislative regimes is that they are in-house approvals processes
of an ex parte nature. President of the Australian Council for Civil Liberties,
Mr Terry O'Gorman, described the process whereby a junior officer obtains
approval from a more senior officer in the same agency as a `cosy arrangement'
[4] and alluded to some of the dangers of in-house
approvals:
Senior police officers were once junior police officers. I know some
senior police officers who, when they were junior police officers, were
regarded as part of the problem rather than part of the solution. Yet,
naively, we say that because a police officer gets pips on his shoulder,
suddenly he is responsible. If you look at Fitzgerald, if you look at
Wood, if you look at the anti-corruption commission in WA and if you
look at the broken windows – not crims this time but police breaking
windows – in Victoria you see that senior police often carry some
of the baggage in terms of misbehaviour that they carried when they
were junior police. [5]
4.15 Similarly, Mr Richard Perry, the Queensland Public Interest Monitor,
told the Committee that one of the weaknesses in the NSW and the Commonwealth
legislative regimes is the application process whereby applications for
certificates or authorities are made to the CEO or a relevant officer
of the agency undertaking the operation. He contrasted the approval process
for telephone interception warrants in the Federal sphere (those warrants
are approved by senior members of the AAT) and the approval process for
applications for listening devices and surveillance warrants in Queensland
(those warrants are approved by a Supreme Court Judge). In Mr Perry's
view, the standard required for the approval of controlled operations
which authorise illegality by police officers is inconsistent with the
higher standards required for the approval of telephone interception and
surveillance warrants:
What we are doing under those warrants is listening in on people's
at times quite private and sensitive conversations. But without in any
way belittling the impact upon privacy that that involves, those warrants
are doing no more than that. Yet at the same time we have a regime which
authorises conduct which would otherwise be illegal by law enforcement
officers and which may necessarily, firstly, have an impact upon members
of the public and, secondly, involve other members of the public in
such activity. Yet we do not require that the authority or authorisation
for that be given the same level as we do for surveillance devices.
It seems to me that there is a logical inconsistency in that, and that
is one which I think has to be addressed. [6]
4.16 Mr Simon Bronitt and Mr Declan Roche argued that the approval process
for controlled operations should be in the hands of someone independent
of the applicant agency. They supported a move to involve someone like
a public interest monitor claiming it would make the process more independent
and accountable. [7] In their view, the internal
approval process is problematic in that the opportunities for review of
that approval are very limited prior to any subsequent trial. Mr Bronitt
suggested that a tribunal or a panel should be established, perhaps comprised
of lawyers and appropriately qualified lay individuals such as ex-police,
to hear applications for controlled operations in which police would have
to establish that they have met the criteria in the legislation:
That is a more appropriate model and, in fact, is what is required
under international human rights law. It is not necessary that it has
to be a judge that grants permission. That is very clear from the international
case law on the privacy right, but it has to be a system of administrative
control which is reviewable. I think the current model we have is deficient
in that regard. I think third party agencies, human rights organisations,
can play a role, perhaps, but I would rather see those interests represented
on the decision-making panel rather than as parties making submissions
for and against a particular operation. [8]
4.17 Dr Tim Anderson, Secretary of the NSW Council for Civil Liberties,
objected to an approval process which allows executive authorisation of
breaches of privacy and serious criminality. According to the Council,
this amounts to the `dangerous process of licensing arbitrary power'.
In cases where passive engagement is required in a drug operation, the
Council's preferred course is that the operation should be authorised
by bench warrant. It is opposed to the current system that allows for
the issuing of a `certificate of illegality' from the members of the investigating
agency. [9]
Arguments in favour of the in-house approval process
4.18 By contrast, the Victorian Government, referring to the NSW legislation,
complained that the need for a controlled operation to be authorised by
a Chief Executive Officer (with extremely limited capacity to delegate
that authority) causes delays in obtaining authorisations. The Victorian
Government claimed that this process can be fatal to an operation. It
was submitted that if the Victoria Police gathered highly rated intelligence
on a major importation of heroin into Sydney and that it was destined
for Sydney the following day, the cumbersome nature of the authorisation
process in the NSW legislation would prevent the timely execution of a
controlled operation:
To place this difficulty in context, Victoria Police conduct approximately
200 operations each year involving covert operatives, of which some
120 involve drug investigations. While it is essential that there is
accountability to the senior management of law enforcement agencies
for such operations, it is simply not practicable from an operational
perspective for the head of a large law enforcement agency to be required
to personally authorise each such operation. [10]
4.19 Law enforcement agencies argued that the possible alternatives to
the in-house approval process for controlled operations were inappropriate
and many of the reasons for their position are set out in paragraphs 4.35-4.46.
Criticism of the approval process: Insufficient monitoring
4.20 It was claimed that a significant weakness in the current legislative
regimes for controlled operations at both Commonwealth and State levels
is the inadequate monitoring of the progress of controlled operations
once authorised. Under the NSW Act, for example, the Ombudsman has the
right to monitor records and must do so every 12 months to present his
or her annual report. Mr Perry claimed that this type of monitoring is
ineffective because it occurs too far down the track. Involvement at too
late a stage in a controlled operation means that the person doing the
monitoring is not sufficiently informed about the history of the operation
and this prevents any active monitoring from taking place. [11]
4.21 The claim that controlled operations are inadequately monitored
and covert police operatives are inadequately supervised is supported
by Mr O'Gorman's observations:
There is far too little requirement for CPOs to tape record when it
is quite safe for them to do so. CPOs frequently operate out of unnumbered
Spirax notebooks that are bought from newsagents, as opposed to paginated
notebooks. So there is a lot of monitoring of the activities of CPOs
that I argue is a logical follow-on from putting the controlled operation
certificate concept in the hands of the court and out of the hands of
senior police. [12]
4.22 Mr O'Gorman told the Committee that in his experience, his
attempts to obtain information about the activities of CPOs have been
met with claims that it would `reveal police methodologies'. In his opinion,
a more open system would allow for greater accountability of CPOs and
their activities and roles in prosecutions and subsequent court actions.
[13] NCA representatives denied that Mr O'Gorman's
assertions applied to their organisation, but noted that they strongly
resist `fishing expeditions' by defence counsel for information with no
legitimate forensic purpose. [14]
Options for reform
4.23 In light of these adverse comments about the current approval process,
the Committee gave consideration to three alternative approaches:
- external authorisation with public interest monitor involvement ;
- judicial authorisation with/without public interest monitor involvement;
and
- tiered levels of authorisation within either or both internal or external
approval process.
Alternative 1: External authorisation with public interest
monitor involvement
4.24 The Committee heard evidence from Mr O'Gorman that the Public Interest
Monitor model in Queensland is an appropriate model for the authorisation
of controlled operations certificates. [15]
The Public Interest Monitor Model
4.25 The position of Public Interest Monitor (PIM) was established in
Queensland in April 1998 and operates under three separate acts: Police
Powers and Responsibilities Act 1997, Crime Commission Act 1977 and
the Criminal Justice Act 1989. The monitor's principal functions
are: to appear on applications by law enforcement agencies before a Supreme
Court judge or magistrate for a search warrant and for the installation
of surveillance devices; to monitor the surveillance techniques; and to
report to the Parliament annually. [16]
4.26 The PIM's primary role is to represent the public interest where
law enforcement agencies seek approval to use search powers and surveillance
devices which have the capacity to infringe the rights and civil liberties
of citizens. The role is based on the public interest in ensuring that
law enforcement agencies meet all the legislative requirements and that
their proposed actions do not extend beyond the parameters laid down by
the Queensland Parliament.
4.27 In practice, the PIM appears at relevant applications by law enforcement
agencies before a Supreme Court judge or magistrate. These are applications
that involve search warrants where the subject of the warrant is unaware
of the application and applications for the installation of surveillance
devices either by way of audio devices, video devices or tracking devices.
The monitor may issue written questions to the agency for answer prior
to the hearing or cross-examine the applicant at the hearing. The PIM
can also prescribe the time frame within which the application is to be
brought.
4.28 The PIM monitors surveillance activities by imposing conditions
on the warrant allowing the PIM unfettered access to all information obtained
under the surveillance system, being the transcript and any film. The
PIM checks that all conditions are complied with and if not, can report
the matter to the Commissioner of Police. The PIM may also apply to the
court for the destruction of material that has been obtained. There is
not yet provision for the PIM to apply to have the warrant cancelled but
the Committee was advised that this is a desirable power that would enhance
the PIM's role. [17]
4.29 The PIM reports annually to the Parliament although there are restrictions
on the information contained in the reports as it can impact on operational
secrecy. These restrictions, however, are counterbalanced by the PIM's
unfettered access to the material and the PIM's ability to report misbehaviour
or non-compliance to the Police Commissioner.
4.30 Mr Perry advised the Committee that a similar system would be appropriate
for the authorisation of controlled operations. In his view, such a system
should be characterised by the following:
- uniformity - There should be a uniform Federal and State scheme; [18]
- an external approval process; [19] (Mr
Perry recommended either referral of applications to the AAT for determination
or the establishment of a separate issuing authority for applications
in the Federal sphere. [20])
- the involvement of a monitor throughout the entire controlled operation,
from the initial application to the end of the controlled operation;
[21] (Mr Perry suggested there should be monitors
in every State operating under the relevant State scheme for their own
State forces and under the cooperative scheme in respect of any Federal
agency operating within that State area. [22]) and
- the issuer should be separate from the monitor; [23] The monitor may need to go back to the
issuer to have the certificate or authority cancelled, so the two roles
should be treated separately. The issuer issues the certificate and
the monitor should appear on the application, support or oppose it,
and monitor the compliance with the certificate. Separating the two
functions also avoids any suggestion of conflict of duty or interest.
[24]
4.31 Applying the PIM model to applications for controlled operations
certificates, a monitor would appear at an application before either the
AAT or an external issuing authority, to represent the public interest.
The monitor would be able to cross-examine the law enforcement agency
to ensure that the operation was necessary and to ascertain whether particular
conditions should be imposed. The PIM would monitor the progress of the
operation and perhaps have the capacity to apply for the termination of
the operation if it became clear that the conditions were not being complied
with or that some other circumstance demanded that the operation cease.
4.32 Mr Perry advised that in setting up such a scheme, it should be
remembered that crime is not neatly confined by state boundaries. Any
scheme would have to make provision for cases where a federal application
is made in respect of suspected criminal activities where there are real
prospects that they will operate interstate. In Mr Perry's opinion, the
scheme should enable an application in relation to an operation that runs
interstate to be heard or grounded in one place. He suggested the question
of where such an application should be heard might be determined by individual
operational considerations in each matter such as where the operation
is running from or where the senior officers are located. [25]
4.33 The Public Interest Monitor in Queensland is involved in the actual
application and approval process of surveillance devices and search warrants.
Mr Perry claims there are advantages in a system where the monitor is
involved in the original application and in the subsequent monitoring
being on-going and close. Some of the significant points included:
- monitors must be `up to speed' on the application and operation in
order to be able to engage in active monitoring;
- for monitoring to be meaningful, it must not occur `too far down the
track';
- for monitoring to be meaningful, information obtained during an operation
must be constantly monitored; and
- close monitoring ensures that law enforcement agencies comply with
the legislature's expectations. [26]
4.34 Mr Perry also reported that the use of legal advisers by police
services in the approvals process for surveillance devices warrants has
added another dimension:
One of the things which I think has been a positive step in the QPS,
for example, is the employment of legal officers in the various sections
and, indeed, now a legal adviser to the Commissioner for Police. I think
it is important because those people add another perspective to the
approval process, and they are people with whom any ombudsman will work
in the first instance. [27]
Arguments against external authorisation and PIM model
Operational efficiency
4.35 Mr Perry predicted that the response of law enforcement agencies
to an external authorisation process would be that it would impact on
operational efficiency. Mr Perry agreed that it would not be as efficient
for an applicant to go before an external body, particularly with the
intervention of a public interest monitor, as it is to obtain the same
from a superior officer. Mr Perry said, however, that operational efficiency,
while an important consideration, is not the paramount consideration:
I can see no reason why operational efficiency or effectiveness is
considered to be so paramount that a regime cannot be implemented in
which the appropriateness of conduct to be authorised is reviewed by
an appropriate independent person with the intervention of an appropriate
ombudsman or public interest monitor or whatever you wish to call them.
[28]
4.36 When the office of the PIM was first created in Queensland, law
enforcement agencies feared that it would negatively impact on operational
efficiency. Mr Perry advised the Committee that, in fact, this has not
been the case. Although on occasions, a window of opportunity for a search
warrant had closed because of the application procedure, according to
Mr Perry, such occasions were `rare'. The objective of those involved
in the application process has been to facilitate the bringing of applications
on an urgent basis. Either the PIM or his deputy is available 24 hours
a day, seven days a week, to ensure that matters are dealt with as and
when necessary. In addition, the PIM's role has been assisted by the attitude
of the judiciary. Where necessary, the PIM has been able to have other
matters stood down so that urgent applications can be brought on and heard
before a Supreme Court justice:
I think it is fair to say that, since the regime has started in Queensland,
there has not been an occasion on which the operational efficiency has
been, in a detrimental sense, affected by the necessity to go before
a Supreme Court justice. What that means in simple terms is that the
system can work and does work if it works with the cooperation of all
parties to it, and to date that cooperation has been forthcoming. Frankly,
I can see no logical reason at all why a similar regime would not operate
with equal efficiency in any other state or in the federal sphere. `Operational
efficiency' is a term used perhaps too frequently to deny what seems
to me an otherwise logical imperative. [29]
4.37 As predicted by Mr Perry, law enforcement agencies did warn that
operational efficiency might be compromised if the approval process for
controlled operations has to involve a PIM, particularly in quick time
response operations. There was general agreement that matters can arise
that require almost instantaneous decisions as to whether an operation
will be undertaken or not. NCA Member Mr Greg Melick told the Committee
that some controlled operations come up immediately and may be over and
done with in 24 hours:
It then becomes a real problem if you have to get a public interest
monitor in. As it is, with three members of the Authority it is difficult
at times to get us in a timely manner either for a controlled operations
certificate or to sign the warrant for a listening device. If you then
got a fourth person involved, it could make life a bit difficult. I
do not have problems with a supervisory role in an audit type situation.
I do have a problem in an on the ground and operational sense. You should
be able to trust the people you have put in those positions, bearing
in mind also that, when it gets to court and we are using evidence such
as a certificate, the certificate itself is tendered and the court can
scrutinise the procedures, et cetera, if they consider it appropriate.
[30]
4.38 The classic case is when narcotic goods are detected at the barrier
and a decision has to be made as to whether to let the goods go, arrest
those detected or conduct a controlled delivery to follow the narcotics
through to their intended recipient. The Australian Federal Police Association
asserted that an external approval process would not be appropriate to
these very quick-time response jobs. [31]
4.39 Mr Melick told the Committee that external approval was not a viable
alternative because the issuer must be kept closely informed about the
progress of the operation. He said that matters can arise very quickly
which are relevant to the issue of the controlled operation certificate
and which the issuer should be aware of:
A lot of people do not understand that a controlled operation is a
very fluid matter. Once you sign a certificate, and especially when
the drugs are getting close or coming into the country, you have to
be kept informed because you are the person responsible. You have certified
that you are satisfied that they are going to be under the control of
the law enforcement agency at the end of the operation. [32]
4.40 The AFP asserted that the approval process is not the appropriate
stage at which to introduce independent accountability in any form. Although
scrutiny is a crucial part of a regime to regulate controlled operations,
the AFP advocated it should be after the event. The type of scrutiny the
AFP considers appropriate is judicial scrutiny at any subsequent prosecution
coupled with the scrutiny of controlled operations certificates in the
report to the Minister responsible and, through that, to the Parliament.
According to AFP Assistant Commissioner Michael Keelty, scrutiny at the
approval process stage is not pragmatic, particularly in relation to drugs
arriving at the barrier. In those situations, decisions and applications
have to be made quickly so that operations can occur in a very short time-frame:
… it might be that my officers have received a call from Sydney
airport to say a person has been stopped by Customs with a quantity
of narcotics. The way that the narcotics industry works is that, in
more cases than not, somebody would already be waiting for that person
to come to the other side of the Customs barrier. Delays are critical
in terms of obtaining the ultimate goal, and the ultimate goal is not
only the seizure of the drugs and the prosecution of any persons in
possession of the drugs; it is to dismantle the syndicates that are
responsible for bringing the drugs into the country. [33]
Mr Keelty suggested that an external approval process is inconsistent
with the ultimate goal of the National Illicit Drugs Strategy to be `tough
on drugs' and to `seize every opportunity to prevent drugs from getting
to street level'. [34]
4.41 Mr Michael Atkins, Principal Legal Policy Adviser, AFP, advocated
that the accountability mechanisms in the telecommunications interception
regime, in terms of the Ombudsman's compliance monitoring role, is an
appropriate one for the Committee to consider. Mr Atkins said that the
monitoring of warrants after their issue and during their life is a powerful
accountability mechanism and one that could be useful in terms of controlled
operations certificates. [35] These issues
are discussed further in Chapter 5.
4.42 The AFPA asserted that an external approval process for controlled
operations involving a PIM would have a deleterious impact on police investigations.
The AFPA claimed that:
- police should have authority over what investigations they do and
how they are conducted. (Police have a statutory right not to have their
activities interfered with. Involving a third party at the approval
stage could have the effect of fettering the discretion of the police
as to what matters they should investigate and how they should investigate
them);
- there are dangers associated with involving third parties in decisions
affecting operations particularly when those parties may not have been
privy to the whole investigative process; and
- practical problems could arise where circumstances change during an
investigation which might alter the objective of an operation and the
original intention behind the issuance of a certificate:
It could well be that the independent person who was there in the
beginning could be caught up in what you actually authorised not being
what happened in the end, and they may not be privy to all of the
facts later on. I do not know what sorts of practical problems could
occur, but you can see how that could perhaps embarrass that person,
or something similar. [36]
Another layer of bureaucracy
4.43 The NCA and the AFP argued that introducing an external authorisation
process, especially with the involvement of a public interest monitor
would just add another layer of bureaucracy to an already laden agency:
When you have an organisation such as ours which is supervised by a
minister, an IGC, a parliamentary joint committee and, when the legislation
comes in, either an inspector-general or an ombudsman, and you appoint
three people who are very experienced and supposed to be moderate and
reasonable people … I cannot see why we need an additional layer
or an embuggerance sitting in our office at 2 o'clock in the morning
when the drugs are landing on the port and deciding whether the certificate
should remain in force or whether the drugs should be pulled in and
all the rest of it. That person probably will not have the relevant
experience. [37]
4.44 The AFP contended that mechanisms that work at the State level will
not always work at the Commonwealth level. In terms of accountability,
the AFP is currently subject to oversight by the Ombudsman, the Privacy
Commissioner, the usual standard public sector accountability mechanisms,
the Australian National Audit Office and the AFP's own legislation:
To have a doubling up in a way, as they do in Queensland, of a monitor
appearing notionally for the person you are investigating may work there,
but I do not know whether it is appropriate at the Commonwealth level.
There are pragmatics too: you have an organisation spread nationally.
[38]
Controlled operations are of a different nature
4.45 Law enforcement agencies argued that applications for controlled
operations involve different considerations than those matters for which
the PIM model is used in Queensland. The applications that the PIM deals
with in Queensland are basically of a procedural nature and the issues
that arise are governed by familiar legal concepts. Mr Perry described
them thus:
When you are okaying a surveillance warrant, you are doing it in fairly
confined circumstances: here are the facts; this is why we think it
meets the statutory criteria; yes, I will okay the surveillance warrant.
[39]
4.46 The Committee was told that, in contrast, applications for controlled
operations involve making value judgments about the operation. The matter
under consideration is the appropriateness of conduct that would otherwise
be illegal. Those applying for certificates need to have a thorough understanding
of the operation to a far greater degree than is needed in the case of
procedural matters such as approving surveillance devices. In the NCA's
view, those who are in a position to make decisions concerning a controlled
operation almost need to be members of the investigative team. The decisions
are subjective, based on the feel that the agency has for the way that
an operation is progressing. [40] Referring
to the approval process being in the hands of an external tribunal, NCA
Member Mr Marshall Irwin stated that:
In my view, the only way that a proper decision could be made about
the granting of one of these certificates is if the tribunal and, indeed,
the public interest monitor had sufficient familiarity with the whole
operation – it might have been going on for many years; certainly
for many months – so that they could make the sort of value judgments
that Mr Perry accepts have to be made in these areas. I consider that
that is a real weakness in the system. Indeed, in cases where something
went wrong, it could leave the public interest monitor in a situation
where he would be liable to be called as a witness. He may even be liable
to civil suit … . [41]
Alternative 2: Judicial authorisation with/without Public Interest
Monitor involvement
4.47 Mr O'Gorman urged the Committee to consider recommending the judicial
authorisation of controlled operations. The system of judicial oversight
envisaged by Mr O'Gorman would be complemented by the intervention
of a public interest monitor who would appear at each application and
represent public interest considerations. He described the current system
as an `ex post facto, supposed "analysis" of the legitimacy
of a controlled operations certificate'. By contrast, he argued that his
proposed system would enhance accountability:
The model of the public interest monitor enables a person to go in
and argue, in relation to a court application, whether a certificate
should issue. I am obviously arguing that the cosy arrangement where
senior police issue certificates to slightly less senior police should
stop and that controlled operation certificates should be issued by
a court with the involvement of a public interest monitor. [42]
4.48 Mr O'Gorman referred to the approval regime for warrants for telephone
interception. When telephone interception was first legitimised by legislation,
such warrants were to be authorised by the Federal Court. Following the
recent enactment of the Telecommunications (Interception) and Listening
Device Amendment Act 1997, this responsibility has been essentially
transferred to the AAT. In Mr O'Gorman's view, the effect of the transfer
of responsibility is that telephone interception warrants are now issued
by AAT members who have `no tenure and significantly less legal experience
and standing than judges'. [43]
4.49 Mr O'Gorman pointed out that AUSTRAC had relied on the Financial
Action Task Force recommendation to support its position that controlled
deliveries is an investigative technique that should be used throughout
the world's legal systems. According to Mr O'Gorman, the FATF had
also argued for judicial authorisation. [44]
Objections to judicial authorisation
4.50 Recent judicial opinion suggests that the purported conferral of
a jurisdiction of this nature on a Federal Court Judge or a High Court
Judge might be rejected. [45] This is the case notwithstanding that the High
Court has ruled, by a clear majority, that the issue of telecommunications
interception warrants is not incompatible with the exercise of judicial
functions. In Grollo v Commissioner of Australian Federal Police and
Others (1995) 184 CLR 348, the High Court held that the issue
of a warrant is an administrative and not a judicial power. Nonetheless,
the court went on to hold that the conferral of that power on judges in
their capacity as persona designata is not incompatible with the
judge's judicial functions. The relevant provisions of the Telecommunications
(Interception) Act 1979 (the TI Act) conferring that jurisdiction
on eligible judges (being Federal Court judges nominated by the Minister)
were constitutionally valid.
4.51 In the course of his dissenting judgement, McHugh J summarised the
concerns of the judiciary:
In my opinion, the functions undertaken by Federal Court judges acting
as persona designata in accordance with the Act are of such a nature
and are exercised in such a manner that public confidence in the ability
of the judges to perform their judicial functions in an independent
and impartial manner is likely to be jeopardised. That being so, the
power to authorise the issue of intercept warrants is incompatible with
the exercise of the functions of a judge of a federal court. [46]
4.52 Despite the majority decision in the Grollo case, judges
have taken the view that they should not exercise powers of an administrative
nature. The `eligible judges' have decided that they should not perform
the function of issuing interception warrants under the TI Act [47]:
The unwillingness of the judges to continue as the repository for the
power to issue warrants means that questions as to constitutionality
and incompatibility of function take on less significance. The government
has no choice but to find someone else to exercise the power. The majority
in Grollo expressly provided that a non-judicial function cannot
be conferred on a judge without his or her consent. [48]
4.53 Accordingly, the Parliament enacted the Telecommunications (Interception)
and Listening Device Amendment Act 1997 extending the range of persons
who can issue interceptions warrants and warrants authorising the use
of listening devices to certain members of the AAT.
4.54 Subsequent cases have strengthened the resolve of judges not to
perform administrative functions. In Wilson v Minister for Aboriginal
and Torres Strait Islander Affairs [49] the High Court held that the nomination
of Justice Jane Matthews to prepare a report under the Aboriginal and
Torres Strait Islander Heritage Protection Act 1984 was incompatible
with her commission as a Federal Court Judge and/or with her judicial
functions as a Judge of that Court.
4.55 In Kable v Director of Public Prosecutions (NSW) the High
Court held that provisions of the Community Protection Act (1994) (NSW)
which purported to authorise the Supreme Court to order the preventative
detention of Gregory Kable was invalid. The Court found that the powers
conferred were incompatible with Chapter III of the Constitution, The
Judicature. Amongst other things, the Court held that the power purportedly
conferred by the NSW Act required the making of an order to deprive an
individual of his liberty, not because he had breached the law, but because
an opinion was formed, on the basis of material not necessarily admissible
in court proceedings, that Kable was more likely than not to breach the
law by committing a serious act of violence. The Court held that process
constitutes the antithesis of the judicial process. [50]
4.56 Against this background, it would seem fruitless to argue for judicial
authorisation of controlled operations. In recognition of such constraints,
Mr O'Gorman conceded that the authorisation should at least take place
at the tribunal level of the AAT.
4.57 Mr Perry advised the Committee that judicial authorisation is not
appropriate because of the sort of approval involved, that is, the licensing
of illegality during the investigative process. He said that the consideration
of applications for controlled operations certificates could be classified
as part of the investigative process and it is undesirable that the judiciary
is seen to be too closely involved in the regulation of the criminal investigation
process. He drew a distinction between surveillance warrants (which are
approved if relevant statutory criteria are met) and controlled operations
certificates:
These certificates are a bit different. What you are considering here
is the appropriateness of conduct which would otherwise be illegal.
That requires some value judgements about the investigative process
itself. My concern would be that, if you framed an appropriate approval
system which required some degree of involvement from the issuer or
approver and that person was a judge, we run smack into the Kable proposition,
et cetera. [51]
4.58 Mr Perry said that although judges might be best qualified to undertake
the decision-making task in these types of applications, such a regime
might not withstand constitutional scrutiny. He noted the recent removal
of applications for telephone interception warrants in the federal sphere
from judicial consideration to the AAT. Mr Perry suggested this may be
problematic for the States because the States do not have recourse to
a tribunal of similar standing and experience as the AAT. Mr Perry concluded
that a separate issuing authority may have to be established. He said:
I would prefer it to be judges, but I do not think it can be, because
of the criteria concerned and because of the sort of approval you are
talking about. That is, you are sending police out to engage in illegal
activity which will on occasions necessarily involve other people in
such activity. I do not think the judiciary can get involved in that.
[52]
Alternative 3: Tiered levels of authorisation within either or both
internal or external approval process
4.59 Some witnesses suggested that the approval process for controlled
operations should be tiered depending on the seriousness of the investigation.
4.60 The evidence on the public record indicates that law enforcement
agencies have used the procedures under Part 1AB of the Crimes Act
to a greater degree than anticipated. [53]
Agencies have reportedly taken a `cautious view' [54]
of the circumstances in which the protection of a certificate should be
obtained. Certificates are now sought in relation to some of the traditional
activities of law enforcement where previously none was sought. For example,
applications for certificates tend to be sought whenever an investigation
requires drugs to pass through the Customs barrier. In addition, however,
agencies are also inclined to obtain certificates just in case a controlled
operation becomes necessary at a later stage in an investigation. [55] The NCA submitted that the complex and technical
nature of the legislation has attracted legal advice, some of which has
been conflicting, resulting in this conservative approach to the legislation.
4.61 There is some fear within law enforcement agencies that a tendency
may develop where the judicial discretion to exclude evidence is exercised
whenever collected during the course of an unauthorised controlled operation.
Consequently, law enforcement agencies are obtaining certificates in a
wider range of circumstances than anticipated by the Parliament. [56]
4.62 By contrast, the New South Wales Act has been under-used. One of
the reasons advanced for this is the high level of authority and complex
documentation required to authorise the simplest of covert drug operations.
[57] This, coupled with the perception that any evidence
collected during an unauthorised operation will be excluded in a subsequent
prosecution, has seriously impacted on police operations. Mr Broome described
this as an unintended consequence of the legislation:
I do not believe it is what the state parliament thought would happen
but what has happened – because it is a safety first approach –
is that there has been quite restrictive legal advice given to agencies
that, since the New South Wales Act came into effect, anything that
comes within its description which is not authorised should not take
place. That gets back to my point about the planned and unplanned kind
of activities. You will find that there is significant evidence that
it has had a very significant effect on the conduct of controlled operations
in New South Wales and one which I think has gone further than it was
intended to. [58]
4.63 It is significant to note that these same matters were raised during
the Finlay Review of the New South Wales legislation. Mr Finlay concluded
that the New South Wales Act had been under-used for the reasons noted
above in paragraph 1.47. Particularly relevant here was the assertion
that law enforcement officers had taken an unnecessarily restrictive interpretation
of the Act. Mr Finlay suggested that what is required to address the problem
of agencies taking an unduly restrictive approach to the legislation is
training and education rather than amendments to the terms of the Act.
[59]
4.64 The NSW Crime Commissioner, Mr Phillip Bradley, suggested a different
approach to overcome the problem of under-use of the NSW legislation.
He recommended that a tiered approach to issuing authorities for controlled
operations would alleviate the cautious attitude to operations that has
developed in law enforcement agencies as a result of the legislation.
At present, law enforcement agencies take the view that they have to get
approval from the Deputy Commissioner of Police in relation to every covert
operation with the result that they decide, on occasions, not to proceed
rather than go through the onerous task of making an application at such
a high level. As a result, policing operations have been significantly
limited. Mr Bradley advocated that there should be different levels of
authorities recognised, so that some controlled operations can be authorised
at the local level. In his view, the problem with the NSW Act is that
it is used to authorise very low level activity that should be authorised
locally and conducted according to guidelines:
A good example is the undercover police who hang about Canley Vale
and Cabramatta railway stations with a fist full of dollars. Someone
will come up to them and offer to sell them heroin. There will be an
exchange of drugs and money and then they will be apprehended. That
is a normal form of policing, whether you regard it as effective or
not. …
I do not think that Ridgeway ever contemplated that evidence
gathered by these sorts of methods should be inadmissible, but the act
would seem to make it necessary to have an authority. There are two
things to say about that. Firstly, police do not like to act without
an authority where there is provision for them to do so with an authority,
otherwise there would be misconduct provisions and things like that.
Secondly, there is a view abroad that if you have a chance to get an
authority, applying a Bunning v Cross type approach to things,
and you do not get one, then the evidence ought to be inadmissible.
[60]
4.65 The tiered system contemplated by Mr Bradley comprises all levels
of covert operations that extend from the lowest or local levels of covert
operations to those where law enforcement officers are actively involved
as partners, promoters or principals in a criminal enterprise. At the
latter end of the scale there should be very strict authorities and guidelines,
not just a code of conduct. At the local level of covert operations, the
approval process should be less intimidating and less restrictive and
therefore less likely to discourage normal policing such as low level
sting-type operations. Even things like trespass to a vehicle for the
purpose of the installation of a listening device or tracking device should
be capable of being authorised. [61]
4.66 The in-house approval system for controlled operations in the Victoria
Police is a tiered process. Approval for a controlled operation must be
obtained from the Covert Investigation Target Committee or the Deputy
Commissioner (Operations) unless the operation is being conducted in relation
to an investigation of a minor nature. Where an investigation is of a
minor nature, the Officer in Charge of the Covert Investigation Unit,
after consultation with the Chairperson of the Target Committee, can approve
the operation.
4.67 An investigation is classified as being minor if it has certain
characteristics. It must be a very short-term investigation involving
minimal contact between a covert operative and a suspect(s). The operation
plan in the application must comply with the Covert Policing Guidelines.
The application must be authorised and signed by the applicant's Divisional
Commander or Detective Inspector. Finally, a police agent/informer must
not be used to obtain evidence with the aim of giving sworn testimony.
[62]
Conclusion
4.68 The Committee is of the view that in-house approval, while convenient
and appropriate to some kinds of controlled operations, is neither necessary
nor appropriate to all controlled operations. To date, the scope of controlled
operations that can be approved under the Commonwealth legislation has
been restricted to the investigation of offences involving the importation
of narcotics. Under these circumstances, the in-house approval regime
was appropriate. As is discussed in Chapter 6 the Committee has decided
that the scope of controlled operations should be widened. Under these
circumstances and, taking into account the public interest concerns raised
about in-house approvals, the Committee is of the view that there should
be an external approval process for certain kinds of operations.
4.69 The Committee considered the evidence in relation to the alternative
systems for external authorisation. In conclusion, the Committee has decided
not to recommend the PIM model because it is not appropriate for these
kinds of authorisations. The Committee accepts the advice of law enforcement
agencies that the involvement of a third person to appear on applications
would adversely affect operational efficiency. At a stage when time is
of the essence, those involved in the approval process really need to
have knowledge of the investigative process and the case itself. The Committee
is of the view that little, if anything, would be gained by the appearance
of a PIM to argue the public interest. The Committee believes that the
accountability mechanisms that it recommends in Chapter 5 will ensure
that the public interest is protected.
4.70 The Committee is also persuaded that judicial authorisation is not
an option for the reasons outlined in paragraphs 4.50-4.58.
4.71 In its report Third Evaluation of the National Crime Authority,
tabled in April 1998, the Committee recommended that certain functions,
such as receiving and considering complaints about the NCA, be made the
responsibility of the Inspector-General of the NCA. The Committee's proposal
was that the Inspector-General of Security and Intelligence should be
given the appropriate designation and this responsibility. Having considered
all of the options for an external approval process, the Committee believes
that the Inspector-General of Security and Intelligence, being already
in existence and dealing with sensitive and operational material, is the
best option.
4.72 The Committee notes, however, that there has been no Government
response as yet to its previous report. Should the Government not accede
to the establishment of an Inspector-General for the NCA then the Committee
believes that the Government must determine another appropriate authority
for the independent approval process. This may be the AAT.
4.73 The Committee is concerned to ensure that operational efficiency
is not adversely affected by the approval process. For this reason, it
has recommended a two tiered process. Applications to conduct controlled
operations in short-term investigations into minor offences will continue
to be approved in-house. Longer-term operations where there is no time
constraint will be subject to the approval process by the Inspector-General
or other independent authority as determined by the Government. In addition,
where approval is required urgently, say, for barrier operations, the
provisions for urgent applications should be preserved.
4.74 Although law enforcement agencies argued for a tiered, in-house
approval system to overcome operational problems that have arisen in terms
of understanding the impact of controlled operations legislation, the
Committee favours Mr Finlay's approach. Accordingly, the Committee is
recommending the development of education and training schemes to ensure
the proper application of the legislation.
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.
Recommendation 4: That law enforcement agencies devise appropriate
training and education courses in relation to the operations of the controlled
operations legislative regime.
NCA should be able to issue its own authorities
4.75 As mentioned at paragraph 3.5, several witnesses to the Committee's
inquiry argued that there is a deficiency in State controlled operations
legislation concerning the capacity of the NCA to issue certificates authorising
operations involving State offences. Under the NSW Act, for example, certificates
authorising controlled operations can be issued by the Chief Executive
Officer of the NSW Police Service, the ICAC, the NSW Crime Commission
or the Police Integrity Commission. There is no power for the Chairperson
or Members of the NCA to issue authorities in respect of controlled operations
undertaken by the NCA either alone or jointly with a NSW law enforcement
agency under the NSW Act. Where the NCA conducts joint operations with,
say, the NSW Crime Commission, the authority is issued by the Commission
Chair.
4.76 It is claimed that this procedure may cause unnecessary delays and
is inconsistent with the character of the NCA as an independent law enforcement
agency charged with investigating serious criminal activity of a cross-jurisdictional
nature. For example, the Queensland Minister for Police and Corrective
Services, the Hon Tom Barton MP, submitted that:
The NCA's involvement in controlled operations under State legislation
can be achieved through engaging officers of the relevant State. However,
the approval process is normally undertaken through the relevant State
Police Service in accordance with the legislation of the jurisdiction.
This is particularly the case in New South Wales. This type of external
approval process is clearly inconsistent with the perception of the
NCA as being an independent entity. [63]
4.77 The recent Finlay review of the NSW Act recommended that that Act
should be amended to enable the NCA to issue its own authorities. [64]
The Committee is similarly of the view that the NCA should have the power
to issue authorities in respect of its own investigations and in respect
of those investigations which it conducts jointly with other law enforcement
agencies under State legislation. This is particularly important in terms
of achieving national uniformity in controlled operations legislation
and is inconsistent with the level of support given to the NCA by the
States and Territories in most other respects.
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.
Grounds on which certificates are authorised: Standard of satisfaction
required by authorising officer
4.78 Having determined who should be responsible for approving controlled
operations certificates and in what circumstances, the next logical step
in the approval process is to examine the grounds upon which a certificate
may be issued.
4.79 In the case of the Commonwealth legislation, section 15M sets out
the preconditions to the issuance of a certificate. Before issuing a certificate,
the authorising officer must be satisfied of four things: firstly, that
all available information about the nature and quantity of the narcotic
goods has been provided; secondly that, irrespective of the operation,
the target is likely to commit an offence against section 233B (or an
associated offence); thirdly, that the operation will make it easier to
obtain evidence of the offence; and fourthly, that after the operation,
any narcotic goods in Australia will be in the control of an Australian
law enforcement officer.
4.80 Referring generally to these preconditions, the NCA submitted that
there is a need for realism:
While the authorising officer may be satisfied of the matters when
issuing the certificate, in the real world one can never be entirely
sure and no guarantees can be given that things will turn out as expected
or planned. The nature of any operation, no matter how carefully planned,
can quickly change due, for instance, to the intervention of third parties
or the persons involved taking anti-surveillance measures. [65]
4.81 The NCA submitted that the requirement that the authorising officer
must be `satisfied' of these four conditions is problematic. The NCA's
preferred standard would be consistent with the standard required for
the issuance of a listening device warrant, a telecommunications interception
warrant and a search warrant: that the authorising officer should be `reasonably
satisfied' or `satisfied on reasonable grounds'. [66]
4.82 The NCA used the hypothetical case of a vessel arriving in Western
Australia suspected of being involved in the importation of narcotics
to demonstrate the practical difficulty associated with the current wording
in section 15M. In such a case, there would be insufficient basis on which
to obtain a certificate because, for example, the authorising officer
cannot be satisfied that at the end of the operation the narcotics will
indeed be in the possession of a law enforcement officer. The very nature
of undercover operations can make this impossible. Consequently, there
would be no authority for the ACS to let the narcotics `run' to their
intended recipients. In the absence of a controlled operations certificate,
the ACS may be obliged to search and locate the narcotics.
4.83 The better scenario would be to let the narcotics run so that much-needed
intelligence could be obtained, to the greater overall benefit of the
law enforcement effort against drugs. Where narcotics are let run, it
is sometimes even possible to arrest the intended recipient of the drugs
and so dismantle some of the organisation behind drug trafficking. [67]
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'.
Section 15M(b): The target is likely to commit an offence …
4.84 The second precondition to the issuance of a certificate in section
15M is that the authorising officer must be satisfied that:
(b) the person targeted by the operation is likely to commit an offence
against section 233B of the Customs Act 1901 or an associated offence
whether or not the operation takes place.
4.85 In support of this requirement, Mr Roche pointed out that section
15M(b) is the only precondition that really constrains the issuance of
controlled operation certificates in any way. Mr Roche contended that,
of the four preconditions in section 15M, this is the only ground directed
towards a consideration of the appropriateness of the proposed operation.
The other matters to be taken into account are either merely procedural
or, in any event, readily satisfied by law enforcement agencies. For example,
it is hard to imagine circumstances where the requirement that the operation
will make it much easier to obtain evidence would not be met (section
15M(c)). Mr Roche concluded that the grounds upon which a certificate
may be issued should be stricter. [68]
4.86 Parliament's intention is that there should be no entrapment of
suspects, an issue that raises important civil libertarian aspects of
the legislation. Mr Bronitt and Mr Roche argued that there is a serious
danger with controlled operations legislation that suspects with a history
of drug abuse may be vulnerable to exploitation by paid informers (agents
provocateur) or undercover police. The co-authors argued that the Commonwealth
scheme does not contain sufficient safeguards against the improper exploitation
of vulnerable suspects. [69]
Recommendation 7: That the `no entrapment' test in section 15M(b)
of Part 1AB of the Crimes Act 1914 be enunciated
with greater clarity.
Section 15M(d): Any narcotic goods will be in the possession of an
officer …
4.87 The fourth precondition for the issuance of a certificate is set
out in section 15M(d) that the authorising officer must be satisfied that:
4.88 The NCA submitted that this fourth criterion will often be difficult
to satisfy, given the nature of importation and undercover operations.
[70] The Committee is of the view that the
wording in relation to this condition should be amended to overcome any
operational difficulties experienced by relevant law enforcement agencies
in terms of satisfying this criterion.
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.
The criminal activities of law enforcement officers should be proportionate
to the matter under investigation
4.89 The Commonwealth scheme in the Crimes Act, in its current
form, does not impose a requirement that the criminal activities undertaken
by law enforcement officers in the course of a controlled operation should
be proportionate to the offence they are investigating. In contrast, the
NSW model provides that the nature and extent of the suspected criminal
activity or corrupt conduct must be such as to justify the conduct of
a controlled operation and the nature and extent of the operation must
be appropriate to the suspected criminal activity. [71]
4.90 It was contended that another precondition should be inserted into
section 15M requiring that a controlled operation must be proportionate
to the offence under investigation. [72]
4.91 The Committee is of the view that this would be an appropriate amendment,
especially in terms of bringing a measure of national uniformity in controlled
operations legislation.
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.
Navigation: Previous Page | Contents | Next Page
Footnotes
[1] There is no provision for NCA Chairperson
or Members to issue authorities in respect of NCA operations in NSW.
[2] Victorian Government, Submission volume,
pp. 186-187 (Attachment A; Operating Procedures, Victoria Police Manual,
Chapter 5, paragraph 5.1.15)
[3] Victorian Government, Submission volume,
pp. 187-188 (Attachment A; Operating Procedures, Victoria Police Manual,
Chapter 5, paragraph 5.1.15). In addition, as mentioned at paragraph 1.57,
immunity from criminal prosecution for police officers and other persons
for drug-related offences is contained in section 51 of the Drugs,
Poisons and Controlled Substances Act 1981 (Vic). To qualify, the
police officer or person must be acting under written instructions by
a police officer not below the rank of senior sergeant.
[4] Mr O'Gorman, ACCL, Evidence, p. 100
[5] ibid., p. 102
[6] Mr Richard Perry, PIM, Evidence, p. 120
[7] Messrs. Bronitt and Roche, Evidence, p.
138
[8] Mr Bronitt, Evidence, pp. 141-142
[9] NSW Council for Civil Liberties, Submission
volume, pp. 148-149
[10] Victorian Government, Submission volume,
p. 172. The Victorian Government noted two other aspects of the approvals
process in the NSW legislation that might cause difficulties for the NCA
and the AFP. First, the requirement that the written request for authorisation
to the relevant Chief Executive Officer must be faxed or mailed to NSW
gives rise to opportunities for security breaches and the possible identification
of covert operatives or informers. Secondly, once a controlled operation
is authorised in NSW, the authorised officer in NSW has control over the
operation and may terminate it without consulting the external law enforcement
agency overseeing the investigation. In summary, the investigators from
the external law enforcement agency cannot oversee or control the security
of intelligence relevant to their operation while in NSW.
[11] Mr Perry, PIM, Evidence, p. 122
[12] Mr O'Gorman, ACCL, Evidence, p. 101
[13] Mr O'Gorman, ACCL, Evidence, p. 101
[14] Messrs Melick and Irwin, NCA, Evidence,
pp. 192-193
[15] Mr O'Gorman, ACCL, Evidence, p.98
[16] There is no controlled operations legislation
in Queensland for the PIM to monitor.
[17] Mr Perry indicated that the power to apply
to have a warrant cancelled would be desirable, a matter he proposed to
raise with the Queensland Government, Evidence, p. 118
[18] Mr Richard Perry, PIM, Evidence, p. 127
[19] ibid., p. 120
[20] ibid., p. 126: Mr Perry expressed a preference
for judicial determination but for the reasons discussed in paragraph
4.58, rejected it
[21] ibid., pp. 121-122
[22] ibid., p. 127
[23] Mr Richard Perry, PIM, Evidence, p. 126
[24] ibid., pp. 126-127
[25] ibid., pp. 127-128
[26] ibid., p. 122
[27] Mr Richard Perry, PIM, Evidence, p. 122
[28] ibid., p. 121
[29] ibid.
[30] Mr Melick, NCA, Evidence, p. 197
[31] Mr Phelan, AFPA, Evidence, p. 168
[32] Mr Melick, NCA, Evidence, p. 196
[33] Mr Keelty, AFP, Evidence, p. 158
[34] ibid.
[35] Mr Atkins, AFP, Evidence, p. 159
[36] Mr Phelan, AFPA, Evidence, pp. 168-169
[37] Mr Melick, NCA, Evidence, p. 196
[38] Mr Atkins, AFP, Evidence, p. 157
[39] Mr Perry, PIM, Evidence, p. 125
[40] Mr Irwin, NCA, Evidence, pp. 194-195
[41] ibid., p. 196
[42] Mr O'Gorman, ACCL, Evidence, p. 100
[43] ibid., p. 99
[44] ibid.
[45] See Mr Irwin, NCA, Evidence, p. 196; Mr
Kerr, Evidence, p. 105; Mr Perry, Evidence, p. 125-126. There is a stream
of authority for this proposition, some of the notable cases being: Grollo
v Commissioner of Australian Federal Police and Others (1995) 184
CLR 348, Love v Attorney-General (NSW) (1990) 169 CLR 57, Wilson
v Minister for Aboriginal and Torres Strait Islander Affairs (1996)
138 ALR 220 and Kable v Director of Public Prosecutions (NSW) (1996)
138 ALR 577
[46] Grollo v Commissioner of Australian
Federal Police and Others (1995) 184 CLR 348
[47] Attorney-General and Minister for Justice,
Daryl Williams MP, Second Reading Speech, House of Representatives, Hansard,
14 May 1997, p. 3445
[48] Department of the Parliamentary Library,
Bills Digest No. 3 1997-98, Telecommunications (Interception) and Listening
Device Amendment Bill 1997, p. 6 citing Grollo v Commissioner of
Australian Federal Police and Others (1995) 184 CLR 348 at pp. 364-365
[49] Wilson v Minister for Aboriginal and
Torres Strait Islander Affairs (1996) 138 ALR 220
[50] Kable v Director of Public Prosecutions
(NSW) (1996) 138 ALR 577
[51] Mr Perry, PIM, Evidence, p.126
[52] Mr Perry, PIM, Evidence, p.126
[53] Attorney-General's Department, Crimes
Act 1914 Part 1AB Controlled Operations, Second Annual Report under
Section 15T, 1997-1998, p. 5
[54] ibid.
[55] National Crime Authority, Submission volume,
p. 105
[56] Mr Broome, NCA, Evidence, p. 2
[57] Inspector of the Police Integrity Commission,
Report: Review of the Law Enforcement (Controlled Operations) Act 1997
(the Act), April 1999, p. 11
[58] Mr Broome, NCA, Evidence, p. 14
[59] Inspector of the Police Integrity Commission,
Report: Review of the Law Enforcement (Controlled Operations) Act 1997
(the Act), April 1997, p.11
[60] Mr Bradley, NSWCC, Evidence, pp. 34-35
[61] ibid., pp. 35-36
[62] Victoria Government, Submission volume,
p. 187 (Attachment A, Operating Procedures, Victoria Police Manual, paragraph
5.1.15)
[63] Hon Tom Barton MLA, Minister for Police
and Corrective Services (QLD), Submission volume, p. 85
[64] NSW Crime Commission, Submission volume,
pp. 1-2; See also: Inspector of the Police Integrity Commission, Report:
Review of the Law Enforcement (Controlled Operations) Act 1997 (the Act),
16 April 1999, pp. 13-15
[65] National Crime Authority, Submission volume,
p. 100
[66] ibid., p. 101, referring to paragraph
219B(5)(a) of the Customs Act 1901; Subsection 6A(2) of the Telecommunications
Interception Act 1979 and subsection 3E(1) of the Customs Act
respectively.
[67] ibid.
[68] Messrs. Bronitt and Roche, Submission
volume, p. 130; Mr Roche, Evidence, p. 138
[69] Mr Roche, Evidence, p. 137
[70] National Crime Authority, Submission volume,
p. 100
[71] See section 6(3) of the Law Enforcement
(Controlled Operations) Act 1997 (NSW)
[72] Messrs. Bronitt and Roche, Submission
volume, p. 130
Top
|