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Chapter 5
Accountability
The Commonwealth legislation
5.1 One of the objectives of the Crimes Amendment (Controlled Operations)
Bill 1995 was to provide for a `full and open system of accountability'
[1] This intention was enshrined in the objects clause
of the Act. Section 15G recites the three objects of the Act, one of which
is to require:
(i) the Commissioner and the Chairperson of the NCA to report to the
Minister on requests to authorise controlled operations and on the action
taken in respect of authorised operations; and
(ii) the Minister is to report on these matters to Parliament. [2]
5.2 The fundamental guiding principle that accountability under the Act
should be as full and frank as possible is reflected throughout the relevant
sections. [3] Section 15R is concerned with the reporting of
each decision to authorise a controlled operation to the Minister by the
heads of the AFP and the NCA. An essential element of that reporting requirement
is that it is to take place `as soon as practicable' after a decision
has been made.
5.3 The other significant element in this part of the reporting regime
is that the heads of the two agencies must provide the Minister with the
reasons for their decision to authorise a controlled operation. Again,
it is plain from the wording in the section that Parliament was encouraging
as full and frank disclosure as possible. Section 15R(3) reads that statements
of reasons `must include (but are not limited to)' the extent to
which the authorising officer's decision was influenced by the seriousness
of the criminal activities under investigation.
5.4 Within three months after the cessation of a controlled operations
certificate, the authorising officer, being the AFP Commissioner or the
NCA Chairperson, must provide the Minister with a written report stating
whether the operation was carried out. If it was, the report must include
details about the nature and quantity of the narcotic goods, the route
through which they passed, any persons and agency that had possession
of the goods, whether the goods have been destroyed and, if not, the identity
of the agency or the person (if not a law enforcement officer) who has
possession of the goods. This last requirement may be satisfied by the
use of a code name if the disclosure of the person's identity would endanger
his or her safety or prejudice a prosecution. [4]
5.5 The second part of the accountability regime is the annual report
by the Minister to the Parliament pursuant to section 15T. Again, Parliament's
intention that public disclosure should be open and frank is reflected
in the wording of section 15T that the report `must include (but is not
limited to)' the following information: the date of the application, the
decision with reasons taken about the application and the information
previously furnished to the Minister under section 15S. [5]
The report is not to mention anything about a named person that has not
already been published about that person. [6] If the Minister forms the view, on the advice of
the NCA Chairperson or the AFP Commissioner, that the inclusion of any
information will endanger a person's safety or prejudice an investigation
or prosecution, then the Minister must exclude that information. As soon
as those dangers no longer exist, the Minister must include that information
in the next annual report. [7]
State accountability regimes: South Australia and New South Wales
5.6 The regime under the South Australian controlled operations legislation
is similar to the Commonwealth regime in that the flow of reporting in
the accountability chain is direct from the agency to the Minister who
has responsibility for the agency to the Parliament. Under section 3(6)
of the Criminal Law (Undercover Operations) Act 1995, a senior
police officer must, within 14 days after granting or renewing an approval
for a controlled operation, cause a copy of the instrument of approval
or renewal to be given to the Attorney-General. In turn, under section
5, the Attorney-General must report annually to Parliament by 30 September
each year. The report must specify the classes of offence for which approvals
were given or renewed under this Act during the period of 12 months ending
on the preceding 30 June. The report must also stipulate the number of
approvals given or renewed during that period for offences of each class.
5.7 The regime under the New South Wales legislation differs in that
it inserts independent oversight into the process. The approval process
for NSW authorities to conduct controlled operations is subject to oversight
by the NSW Ombudsman. The Ombudsman is then accountable to the Parliament.
This model constitutes an alternative option for ensuring proper accountability
in the controlled operations process and is dealt with in detail in paragraphs
5.26-5.33.
Criticism of current Commonwealth regime
Inadequate reporting regime
5.8 Some witnesses argued that the principal deficiency identified in
the current Commonwealth system is that the reporting regime is inadequate
despite the stated policy objective within the legislation that, save
to the extent that there was a legitimate reason for non-disclosure, the
matter should be fully disclosed. The witnesses' concern with the current
regime was said to be that the reports contain insufficient information
and consequently do not satisfy the underlying policy objective of open
and frank disclosure that facilitates public accountability. In particular,
the reports have been described as containing:
- purely statistical information; and
- pro forma reasons in relation to the issuance of certificates. [8]
5.9 Speaking for the Australian Council for Civil Liberties its President,
Mr Terry O'Gorman, asserted that the lack of relevant information
in annual reports constitutes the principal civil liberty concern in relation
to controlled operations regimes. The annual reporting requirement is
designed to safeguard civil liberties as well as to fulfil community expectations
regarding open and transparent government. Therefore, it is unacceptable
that the requirement should be satisfied by `proforma and typically uninformative'
reporting which has characterised most annual reports in relation to telephone
tapping in the last twenty years. [9]
5.10 Referring to the 1996-97 annual report on the operation of Part
1AB of the Crimes Act 1914, Mr O'Gorman claimed that `the information
that is in the certificates is meaningless'. [10]
Mr O'Gorman pointed out that the report refers to some certificates issued
for controlled operations involving very substantial quantities of drugs
and that the only information provided as to the outcome of the operation
is that it did not go ahead:
If you look at that annual report, there are probably upwards of 10
instances where it says “controlled operation certificate issued,
controlled operation did not go ahead”. There is almost an equal
number of examples of the controlled operation resulting in the delivery
and the stuff is never picked up. You have to ask, “Aren't we entitled
to a little bit more information than simply being told `certificate
issued, drugs dropped off at address X, no-one picked them up, drugs
now in the AFP vault'”? You have to ask, “If that is happening,
why was the certificate needed in the first place?” It intrigued
me when I read that annual report as to why there was so little information.
Look at the reasons - they are all pro forma. [11]
5.11 The reports to date have chiefly been comprised of copies of certificates
for controlled operations with minimum details provided as to the actual
operation and the outcomes of operations. It is argued that the effect
of this style of reporting is that:
- it raises unanswered questions about operations; and
- it is not sufficient for Parliament to form a proper view as to whether
the certificate permitting police to import a significant amount of
drugs for the purpose of making relevant arrests was rightly issued.
[12]
5.12 To demonstrate this point, Mr O'Gorman referred to some of the cases
in the 1996-97 annual report. For example, the annual report indicates
that a certificate issued to the ACS on 22 May 1997 involved one kilo
of heroin. The only information given, however, was that the controlled
operation did not proceed and that the heroin was stored with the AFP.
[13] Similarly, the report notes that a certificate
was issued on 20 January 1997 to the ACS in relation to the importation
of 6 kilos of heroin into Australia. The report simply notes that the
controlled operation did not proceed although the importation occurred
with the knowledge of law enforcement officers. There is no relevant detail
given as to the circumstances of the importation:
It is argued, therefore, that the reporting mechanism to Parliament
is near to useless in that the unexplained non-provision of information
or the exclusion of information on the basis of ongoing operational
"necessity", has the effect of the reader posing more questions
than are answered by the content of the Certificates. [14]
5.13 Numerous other certificates were issued but there are pro forma
notations that the controlled operation did not proceed or that it did
proceed to delivery but the package was recovered unopened:
… the reasons for the decision to issue a Controlled Operation
Certificate are almost invariably couched in proforma and, indeed, identical
language from one Certificate to the next. This descent into proforma,
rubber stamp-like reasons for a decision to issue a Controlled Operation
Certificate follows the precedent set in Annual Reports to the Federal
Parliament in relation to telephone tapping, namely that the proforma
reasons are so uninformative as to make the reporting mechanism close
to useless. [15]
5.14 The NCA submitted that the courts have not commented adversely on
the NCA's practices in relation to the issue of controlled operations
certificates or the conduct of controlled operations. [16]
The counter argument was put that courts have had little opportunity to
comment. Courts are rarely fully apprised of the circumstances leading
to the issue of a controlled operation certificate or of the steps taken
by police to conduct a controlled operation. According to Mr O'Gorman,
public interest immunity and police methodology claims raised by the AFP
and the NCA effectively prevents judicial scrutiny. [17]
Contrary view: Public interest not served by disclosure to Parliament
5.15 In its submission the NCA expressed concern that the current reporting
system contains too much scope for inadvertent disclosure of sensitive
operational material. It stated its view that:
The NCA does not see any need for the Minister to report anything beyond
statistical information to Parliament. Given the fact that the circumstances
surrounding a certificate will be subject to detailed scrutiny during
a prosecution, the NCA asks whether the public interest is served by
requiring the Attorney-General to give the Parliament detailed information
which may inadvertently prejudice a prosecution. [18]
5.16 Commenting on the philosophy behind the legislation that law enforcement
agencies should be encouraged to disclose more information rather than
less, NCA Chairperson Mr John Broome elaborated on the possible adverse
consequences of the inadvertent disclosure of information:
One of the difficulties is that, if you wish to include more information
in those documents rather than less, then you have the potential difficulty
of their publication at a time which may be prejudicial to a prosecution
- and this almost occurred - which may be two or three or whatever years
after the certificate has been issued. Equally, you may find that information
which is of relevance to enable you to make judgements about whether
the certificates were properly issued might also have the potential
to disclose, even some years after the event, the source of information
that you had. [19]
5.17 Mr Broome also argued that the current system is inappropriate because
it results in different versions of the documentation that `float around'.
There is the letter from the NCA to the Attorney-General (or, depending
on administrative arrangements, the Minister for Justice and Customs)
giving quite specific details about a certificate. Then there is the report
provided to the Department that is eventually tabled. Mr Broome warned
that if those reports are tabled without further consultation, some information
that may not be in any way prejudicial after a trial has been completed
because, for example, evidence has been given, may be quite prejudicial
beforehand.
5.18 During Mr Broome's appearance at the Committee's public hearing
in Sydney, he told the Committee that he preferred a system of graded
reporting involving, perhaps, disclosure in the first instance to a parliamentary
committee, rather than the current approach of the general publication
of certificates, that has the potential to prejudice sources of information.
[20] At a subsequent hearing, however, he adjusted
the NCA's position on the reporting issue:
On reflection, our view is that we would prefer to leave the reporting
obligations as they are and to deal with the administrative difficulties
as they should be between us and those who publish the material. We
can probably overcome the difficulties, providing there is adequate
consultation. We had a problem in the past, but I think we can overcome
that. So for our part we are quite content to leave those arrangements
as they are in place at present. [21]
5.19 The Committee rejects any suggestion that by giving purely statistical
information in relation to controlled operations the NCA would or could
satisfy the public policy objectives behind the legislation. It believes
that while the current arrangements are an attempt at striking an appropriate
balance between the need for proper accountability and maintaining operational
confidentiality, the provision of purely statistical information fails
to meet the original objectives of the legislation - that is, proper Parliamentary
scrutiny. Any administrative difficulties being experienced in the reporting
system should be met by administrative solutions, rather than by a lessening
of the reporting requirements.
Alternative systems of accountability
5.20 There are essentially two options available for the oversighting
of the NCA's involvement in controlled operations. The first is the present
arrangement whereby the NCA reports to the Minister and then the Minister
reports in a summary form annually to Parliament. This kind of oversight
is characterised by the flow of accountability proceeding directly through
the agency's usual chain of accountability to Parliament. Unfortunately,
the value of the reporting is much diminished because the level of disclosure
to Parliament is significantly less than that provided to the Minister.
Therefore, while it can be said that there may be adequate executive accountability
- and the Committee has no way of knowing this due to an inadequate response
from the Attorney-General's Department - there is very limited ability
on the part of the Parliament to exercise effective accountability due
to 'information starvation'.
5.21 The second and alternative model would entail oversight external
to the NCA by an independent intermediary between it and the Minister.
Fundamental guiding principle for an accountability regime
5.22 The overwhelming message to the Committee during its inquiry has
been that in any system that provides for the approval of controlled operations,
the empowering provisions need to be matched by proper accountability.
The NCA argued that the legislation should provide a balanced and workable
arrangement to ensure adequate accountability without limiting the need
for effective operations, particularly in the area of serious drug trafficking.
[22] Mr Tim Carmody, Queensland Crime Commissioner,
advised that the essence of controlled operations legislation is to balance
the competing public interest objectives of detecting and convicting the
guilty and protecting the integrity of the criminal justice system. [23]
Similarly, referring to the development of controlled operations legislation
in New South Wales, Mr Phillip Bradley, NSW Crime Commissioner, described
it as a `balancing act':
… there is a balancing act to be applied. That is one of the difficulties:
how you have an authority against which you can measure the conduct
of those who are authorised in a proper, accountable way which permits
people to have sufficient scope to be able to engage with others in
criminal activity in order to gather the evidence and intelligence that
we really need. [24]
5.23 On behalf of the Attorney-Generals' Department, Mr Karl Alderson,
described the thrust of the Commonwealth legislation as providing a system
for legislatively approved and controlled undercover operations mirrored
by appropriate accountability mechanisms:
I guess the rationale for the existing legislation is that, given the
unusual nature of these things, it is desirable that, if law enforcement
officers are to be authorised to engage in unlawful conduct, that needs
to be matched by an appropriate accountability framework and appropriate
limitations and controls within the legislation, though the need to
properly match powers as against limitations and accountability will
be carried through into any review and development of further legislation.
[25]
Oversight by a parliamentary committee: Complementing the Public
Interest Monitor model
5.24 In the course of advocating a public interest monitor regime for
the approval of authorities to engage in controlled operations, Queensland's
Public Interest Monitor, Mr Richard Perry, advocated that appropriate
oversight in a controlled operations regime would be for the monitors
to address a parliamentary committee. Such a system would enable the monitor
to address the committee on an in camera basis in relation to any concerns
he or she had about operational matters. [26]
Mr Perry advised the Committee that the PIM model works well when the
monitor is also oversighted:
5.25 The reporting mechanisms of the Queensland PIM are twofold. The
PIM reports to Parliament annually and, in addition, the PIM can report
to the Police Commissioner about any particular matter on an ad hoc basis.
[28] The PIM's reporting facilities are limited to
this regime because of the security considerations involved. If reporting
went beyond this, there is always the possibility of disclosure of information
that should be secure:
You tend to be possessed at any one time of an awful lot of knowledge
about particular operations and, because of what you are talking about,
you do have to be careful about the extent to which you can do it publicly.
[29]
The New South Wales model
5.26 As outlined in paragraph 5.7, the accountability regime in the New
South Wales legislation effectively involves the reporting of decisions
to authorise controlled operations combined with oversight by the NSW
Ombudsman's office. Within 28 days after completing an authorised operation,
the principal law enforcement officer responsible for the operation must
report to the CEO. The matters to be included in that report are those
specified in the relevant regulations. [30]
Within 21 days after granting, renewing or varying an authority, or receiving
a report on the conduct of a controlled operation, the CEO must give a
written report to the Ombudsman. The Ombudsman can require such information
as is necessary for a proper consideration of it. [31]
The Ombudsman must inspect the records of each law enforcement agency
at least once a year and may conduct inspections at any other time. The
provisions of the Telecommunications (Interception) (New South Wales)
Act 1987 regarding inspection by the Ombudsman under that Act, apply
to the Ombudsman's inspections of controlled operations records. The Ombudsman
may make special reports to Parliament in relation to those special inspections.
[32]
5.27 The Ombudsman must report annually to Parliament after 30 June each
year about his or her work and activities under the NSW Act. The reports
must include statistical information about the authorities granted or
refused, the nature of the criminal activities investigated under the
authorities, the number of law enforcement officers and civilians that
participated and the nature of the activities in which they participated.
[33]
5.28 Some ancillary matters are stipulated. For example, the annual reports
must not include information that would, if made public, endanger a person,
disclose investigation methodology or prejudice an investigation or legal
proceeding. Sections 30(2) and 31AA of the Ombudsman Act 1974 apply
to Ombudsman's reports about controlled operations as they apply to reports
under section 30 of that Act. The Ombudsman must give a copy of any report
to the CEO of the agency to which the report relates and to the Minister
responsible for that agency.
5.29 In his review of the NSW legislation, the Inspector of the Police
Integrity Commission, Mr Mervyn Finlay QC, recommended that the NSW Act
be amended to provide for further review by the Minister in another three
years and that the outcome of that further review should be tabled in
Parliament. [34] In terms of recommending amendments
to the accountability provisions in the NSW Act, Mr Finlay supported:
- a statement of intention that the Act provides for accountability
to ensure authorities are appropriately granted and for external auditing
by the Ombudsman; [35]
- the adoption of uniform forms by law enforcement agencies making applications;
[36]
- extending the time frame in which the principal law enforcement officer
for the operation must report to the CEO from `within 28 days' to `within
two months'; [37] and
- Ombudsman's inspections to take place within twelve months of the
commencement of a controlled operation (rather than in every twelve
month period). [38]
5.30 Mr Finlay considered but rejected a proposal that in the case of
very sensitive matters, the CEO should be permitted to certify that a
matter is of such a sensitive nature that inspection should be deferred
for a specified period not exceeding twelve months:
The assessment by a CEO of what are considered “very sensitive
matters” is a subjective exercise. I consider there is a risk
in this proposal that the Ombudsman's powers and functions of her office
under the Act, may in practice be limited or diluted. [39]
New South Wales model in practice
5.31 Mr Bradley discussed the practical consequences of Ombudsman oversight.
The relevant officer from the Ombudsman's office attends at the New South
Wales Crime Commission office and physically inspects all of the applications.
That kind of inspection causes some concern because some operations are
extremely confidential and involve informers and undercover operatives
who may still be `in the field'. These operations might be known to only
two or three people, yet the agency is required to submit to full and
open inspection by the Ombudsman's office. According to Mr Bradley, the
Ombudsman's approach to the NSWCC's concerns regarding extreme confidentiality
has been very reasonable. The Ombudsman has nominated the Deputy Ombudsman
as the person who will inspect those particular kinds of cases and has
not ruled out the possibility of waiving the inspection of the actual
application in certain cases. The Ombudsman's policy of only one person
inspecting confidential cases has alleviated the NSWCC's concerns. After
the inspection, the Ombudsman reports to Parliament in the general terms
referred to in paragraphs 5.27-5.28. [40]
5.32 To date, the NSWCC's experience has been that the Ombudsman has
identified some errors, but those errors have not been part of the substantive
application or the authority. Errors in applications and authorities have
included: the wrong number of participants, wrong dates (the date of a
previous application had been left on a current application); and certificates
having passed their expiry dates without being renewed, due to administrative
oversight [41]:
The documentation, as it is used at the moment, having been drafted
by lawyers within agencies like mine, is unduly complicated. Little
things which can be overlooked in the administrative process can result
in the Ombudsman writing in her annual report that we have breached
the rules in some way or other, which is not a desirable outcome. I
do not want to have people such as the Ombudsman saying that I cannot
comply with an act, that I keep getting things wrong. But, because of
the complexity in the administrative process, there are always little
things which are left out or left in. [42]
5.33 In addition to the independent oversight by the Ombudsman, there
is oversight by the courts in cases where a prosecution results. If a
law enforcement officer acting under a controlled operation authority
has acted outside the terms of the authority, then the common law rules
would apply to the evidence gathered during that operation. The officer's
conduct would be tested in the course of a prosecution and to that extent,
there is judicial oversight. In summary Mr Bradley said:
The Ombudsman has very wide authority to look at all of the documents,
to inspect closely what has been done and to look at the reports of
the conduct. The Ombudsman is reliant upon what is reported rather than
what in fact occurred to the extent that there may be a discrepancy.
If an officer were minded to tell lies about what happened in the report,
the Ombudsman would not be alerted to that unless he or she had some
other source of information. Where that would be likely to arise, I
would suggest, would be in the prosecution process. [43]
Appropriate degree of public accountability: Finding the right balance
of disclosure
5.34 The Committee was concerned to ensure that the system of accountability
for controlled operations conducted by the NCA strikes the right balance
between competing interests. As already stated, proper accountability
was identified as the most significant civil liberty consideration. Against
that important concern, the Committee had to weigh the arguments of law
enforcement agencies that favoured confidentiality in relation to certain
information and the consequences that could flow from its disclosure.
5.35 Mr Carmody favoured the NSW model of accountability [44] because it has sufficient independent oversight
by the Ombudsman coupled with reporting precautions. In particular, Mr
Carmody endorsed the `filter' role of the Ombudsman in relation to withholding
certain sensitive information. While that information is still reported
to the Ombudsman, it is not reported further. [45] According to Mr Carmody, the regime provides
an area of discretion so that certain information that would endanger
health or safety or prejudice a prosecution is not disclosed in the Ombudsman's
reports. He said that in those cases there is a clear justification for
secrecy:
That is important if you want to ensure that good law enforcement is
not bought at too high a price. [46]
Mr Carmody acknowledged, however, that the exercise of that discretion
has to be transparently examinable and reviewable so that those exercising
the discretion are accountable for the decisions they make. This, in turn,
has a disciplining effect on those involved in the system. [47]
5.36 It was put to Mr Carmody by a Committee member that `sunlight is
the best disinfectant', that the greater the transparency the better the
system of accountability. [48] Mr Carmody, however, claimed that the concept
of accountability has to be distinguished from the concept of publicity.
The two concepts must not be confused. That is, accountability requirements
should be imposed to account for the actions of government without unnecessarily
revealing or publicising the operations of law enforcement. Where publicity
is involved, the question should be asked what additional accountability
does the publicity give? Many operations in government are scrutinised
independently without being scrutinised publicly [49]:
Just like information is power to law enforcement, publicity is also
power to our opponent because they are part of the public. They can
get access to information and they can devise their strategies and countermeasures
on the basis of information we give them. Unless we keep that information
confidential, within limits that are safe for accountability but are
there to protect the integrity of our ongoing investigations, then that
is a compromise that I think is a fair one and a reasonable one. In
the end you become self-defeating. If you keep telling people how you
are doing things, what your success rates are and where you are being
most effective, they will move to some other area. They are very responsive.
[50]
5.37 Mr Carmody warned that over-publicity of police operational methods
would result in criminals taking steps to defeat law enforcement efforts,
for example, by changing their methods of concealment. This counteracts
police attempts to be proactive rather than reactive.
5.38 Criminal Justice Commission Chairperson Mr Brendan Butler similarly
claimed that there needs to be a sense of balance in relation to accountability.
The public reporting of police investigations and the use of these powers
should be controlled, particularly in relation to individual operations.
Agencies sometimes use civilians who may not wish to be identified or
to give evidence in court. In some cases, civilians might be placed in
danger if certain information were reported. On the other hand, there
is widespread acceptance amongst law enforcement agencies that their public
support is dependent on the community's better understanding of how they
operate. This means there has to be proper transparency and full communication
to the Parliament and, through the Parliament, to the people of Australia.
The inclusion of progressively more information in the NCA's annual reports
reflects this trend. Mr Butler argued that while this kind of open accountability
is desirable, there should be caution when dealing with sensitive and
individual operations.
5.39 Mr Butler advocated external oversight of the NCA in a manner similar
to either the Parliamentary Criminal Justice Commissioner in Queensland
or the Inspector of the Police Integrity Commission in New South Wales.
The existence of an independent statutory officer, with considerable powers
to receive and investigate complaints about the NCA and to report to Parliament
or to a parliamentary committee would assure the community that the agency
is properly supervised. In terms of achieving the right balance in relation
to what information is disclosed and what is withheld, Mr Butler suggested
that certain aspects of the scheme could be contrived in order to achieve
the right sense of balance. For example, three-year terms would be appropriate
for inspectorate type positions, coupled with high level reporting requirements.
[51]
5.40 In summary, Mr Butler suggested that in determining the appropriate
level of disclosure in reporting, regard should be had to the effect of
disclosure on individuals, their personal safety and their recruitment
as well as the effect of disclosure on the investigative techniques and
methods of law enforcement agencies. Absolute openness might have a detrimental
effect on both of these aspects of the investigative process. [52]
At the same time, however, the Committee was urged by Mr Carmody that
the system of accountability for controlled operations should not be one
where secrecy is valued above all other public interests. [53]
Ombudsman oversight: Telecommunications interception regime
5.41 The Commonwealth Ombudsman is responsible for oversighting the telecommunications
regime under the Telecommunications (Interception) Act 1979 (the
TI Act). Warrants for telecommunications interception have to be obtained
from a source external to the agency conducting the investigation. While
this can be an eligible Judge of the Federal Court or the Family Court,
amendments in 1997 extended the power to approve such applications to
certain members of the Administrative Appeals Tribunal. [54]
Applications are required to be in writing but, in urgent circumstances,
may be made by telephone but with written follow-up within one day after
the warrant is issued. As safeguards, the TI Act requires that the applicant
agencies, including the NCA and the AFP, are obliged to maintain records
which are regularly inspected by the Ombudsman. The Attorney-General is
kept informed of the agencies' activities by means of reports from the
agencies and the Ombudsman. [55]
5.42 The Act contains a number of provisions designed to facilitate the
monitoring of the operations of the agencies applying for warrants and
to render the agencies accountable for their actions under the legislation.
For example, the Commissioner of the AFP has to maintain a General Register
which is required to show relevant particulars about each warrant. The
Register is subject to inspection by the Ombudsman and the Commissioner
has to deliver to the Attorney-General every three months so much of the
General Register as has not been previously inspected.
5.43 A copy of each warrant and of each instrument revoking a warrant
must be given to the Attorney-General as soon as practicable. A written
report about the use made of information obtained by interception must
be made within three months of the warrant ceasing to be in force to,
in the case of the AFP and the NCA for example, the Attorney-General.
The Attorney-General must also table a report each year containing certain
information.
5.44 Mr Michael Atkins, the AFP's Principal Legal Policy Adviser, described
the oversight by the Commonwealth Ombudsman of the telecommunications
interception regime as a `very powerful accountability mechanism':
… one of its great virtues is the compliance monitoring role that
the Ombudsman has after the issue of the warrant. Warrants are a very
useful device for ensuring that, yes, the boxes are ticked. Very few
warrants are rejected. For agencies to know that there is an independent
body that can step in and check during and after the life of the thing
that, yes, the commission has been used lawfully and properly is a very
powerful accountability mechanism. [56]
5.45 The NSW Ombudsman has responsibility for monitoring compliance of
telephone interception under the Telecommunications (Interception)(NSW)
Act 1987 after the issue of the warrant. The agencies involved in
telephone interception are required to retain comprehensive records concerning
interceptions. The Ombudsman is required to inspect those records twice
a year and to report to the NSW Attorney-General concerning the agency's
compliance with the legislation. It is important to note that the Ombudsman
is prohibited from including any details of those inspections in that
agency's annual report. [57]
5.46 As set out at paragraph 5.26, the NSW Ombudsman also plays a key
role in oversighting the controlled operations regime in that State. Mr
Atkins described the Ombudsman's involvement as an ongoing compliance
mechanism:
They have some restrictions on what the Ombudsman can do, but it is
still there. We know if you act unlawfully and improperly not only are
you going to be held to account at the end of the process if it gets
to court but you may well be held to account during the process. [58]
5.47 The AFP stated that it welcomes accountability by bodies like the
Ombudsman because ultimately, accountability protects the agency and its
members who act lawfully and appropriately. In addition, Mr Atkins asserted
that this kind of accountability also protects the public:
So in terms of accountability, whatever mechanism is used has to be
effective, and the most effective mechanism is one that acts as part
of the normal process, one that everyone knows is there, one that is
a disincentive for people to try to push the limit too far, and one
that gives assurance to the parliament, to the executive and to the
public that if something does go wrong the chances are it is going to
be detected. [59]
Conclusion
5.48 The capacity to conduct controlled operations is a powerful law
enforcement tool and as such should be exercised subject to proper accountability.
Given that the Committee has essentially accepted the view that particular
regard must be paid to the need for confidentiality in the approvals process
in the interests of operational efficiency and for the personal protection
of participants, it favours a comprehensive accountability system as the
balance.
5.49 The Committee rejects the suggestion that a parliamentary committee
should play a primary role in oversighting the controlled operations process.
As the Committee noted in its April 1998 report Third Evaluation of
the National Crime Authority the proper role of parliamentary committees
is to call the Government to account for the performance of its executive
responsibilities and to independently and fearlessly report to the Parliament
about its findings. They should not join with the Government in the performance
of its executive role. [60]
5.50 In addition, the Committee appreciates that oversighting the investigative
operations of an organisation involved in secretive and dangerous work
is a particularly inappropriate function for a parliamentary committee.
There would be genuine concerns raised about security of information.
In Queensland, for example, the statutory office of the Parliamentary
Criminal Justice Commissioner has been created to examine CJC matters
on behalf of the Parliamentary Criminal Justice Committee. It is notable
that the PIM is not subject to the committee's monitoring, because of
the security considerations involved.
5.51 The Committee is impressed with the manner in which the telecommunications
interception system is held accountable, as was described in detail above.
It seems to strike the correct balance between reassuring the community
of the integrity of the system while maintaining an appropriate level
of operational protection.
5.52 The Committee also agrees with Mr Perry that the issuer of the certificates
should be separate from the monitor or the person responsible for accountability.
As set out in Chapter 4, the Committee has recommended that the Inspector-General
of Security and Intelligence (designated as the Inspector-General of the
NCA) should be responsible for determining applications for controlled
operations of a long-term nature. The Committee has added the proviso
that, in the event that the Government does not accede to the establishment
of that office, then that power should be conferred on another independent
body such as the AAT.
5.53 The Committee is aware that the Commonwealth Ombudsman has gained
particular and relevant expertise in the oversight of the telecommunications
interception process. In addition, the Committee is persuaded that the
NSW system of oversight of controlled operations by the NSW Ombudsman
satisfies the criteria for open and frank accountability. The Committee
believes that the NSW model should be adopted by legislatures throughout
Australia in the endeavour to secure national uniform legislation for
controlled operations.
Recommendation 10: That there be an appropriate system of accountability
provided within the legislative regime of controlled operations involving
oversight by the Commonwealth Ombudsman. The oversight should be in identical
terms to that required of the NSW Ombudsman under the Law Enforcement
(Controlled Operations) Act 1997 (NSW).
Recommendation 11: In order that the Parliament be appropriately involved
in discharging its responsibility for scrutiny under the legislation there
should be a requirement placed on the Ombudsman to annually brief the
Parliamentary Joint Committee on the National Crime Authority on a confidential
basis in relation to the Authority's involvement in controlled operations.
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Footnotes
[1] Hon Duncan Kerr MP, Minister for Justice,
Hansard, House of Representatives, 22 August 1995, p. 4
[2] Crimes Act 1914, Part 1AB, section
15G(1)(b)
[3] The accountability regime is contained in
sections 15R, 15S and 15T of Part 1AB of the Crimes Act 1914
[4] Crimes Act 1914, Part 1AB, section
15S
[5] Crimes Act 1914, Part 1AB, section
15T(2)
[6] Crimes Act 1914, Part 1AB, section
15T(3)
[7] Crimes Act 1914, Part 1AB, section
15T(4)
[8] Australian Council for Civil Liberties,
Submission volume p. 159
[9] Mr O'Gorman, ACCL, Evidence, p. 107
[10] ibid.
[11] ibid.
[12] Australian Council for Civil Liberties,
Submission volume, p. 159
[13] Crimes Act 1914 Part 1AB Controlled
Operations, Annual Report under Section 15T, 1996-97, p. 60
[14] Australian Council for Civil Liberties,
Submission volume, p. 161
[15] ibid., p. 160
[16] National Crime Authority, Submission volume,
p. 95
[17] Australian Council for Civil Liberties,
Submission volume, p. 162
[18] National Crime Authority, Submission volume,
p. 104
[19] Mr Broome, NCA, Evidence, p. 19
[20] ibid., pp. 19-20
[21] ibid., p. 191
[22] Mr Broome, NCA, Evidence, p. 1
[23] Mr Carmody, QCC, Evidence, p. 76
[24] Mr Bradley, NSWCC, Evidence, p. 34
[25] Mr Alderson, Attorney-General's Department,
Evidence, p. 188
[26] Mr Richard Perry, PIM, Evidence, p. 131.
The model is analogous to the oversight committees of the US House of
Representatives in relation to security intelligence organisations. Presentations
to committees are made in confined circumstances so that operational secrecy
is not compromised.
[27] Mr Perry, PIM, Evidence, p. 131
[28] ibid. Mr Perry suggested the PIM might
also have the facility to report to the chairman of the CJC if a matter
involved potential misconduct
[29] ibid.
[30] Law Enforcement (Controlled Operations)Act
1997, section 15
[31] Law Enforcement (Controlled Operations)
Act 1997, section 21
[32] Law Enforcement (Controlled Operations)
Act 1997, section 22
[33] Law Enforcement (Controlled Operations)
Act 1997, section 24
[34] Inspector of the Police Integrity Commission,
Report: Review of the Law Enforcement (Controlled Operations) Act 1997
(the Act), April 1999, p. 45
[35] ibid., p. 44
[36] ibid., p. 41
[37] ibid., p. 38
[38] ibid., p. 33
[39] Inspector of the Police Integrity Commission,
Report: Review of the Law Enforcement (Controlled Operations) Act 1997
(the Act), April 1999, p. 34. Emphasis in original. It should be noted
that Ms Irene Moss was NSW Ombudsman at the time of Mr Finlay's review.
[40] To date, the NSW Ombudsman has tabled
two reports.
[41] Mr Bradley, NSWCC, Evidence, pp. 37-38
[42] ibid., pp. 36-37
[43] Mr Bradley, NSWCC, Evidence, p. 39
[44] Subject to the recommendations of the
Finlay Review
[45] Mr Carmody, QCC, Evidence, p. 88
[46] ibid., p.79
[47] ibid.
[48] Hon Duncan Kerr MP, Evidence, p. 86
[49] Mr Carmody referred to the example of
the Parliamentary Criminal Justice Commissioner who oversights and investigates
complaints against the CJC at the fiat of the Parliamentary Criminal Justice
Committee, Evidence, p. 86
[50] Mr Carmody, QCC, Evidence, p. 87
[51] Mr Butler, CJC, Evidence, p. 96
[52] Mr Butler, CJC, Evidence, p. 97
[53] Mr Carmody, QCC, Evidence, pp. 86-87
[54] See paragraphs 4.50-4.58 and the judiciary's
decision not to be involved in the approval process
[55] The NCA's annual report for 1997-98 at
page 40 notes that the Ombudsman had reported a 'high level of compliance'
for both inspections undertaken during the year
[56] Mr Atkins, AFP, Evidence, p. 159
[57] NSW Ombudsman, 1997-98 Annual Report,
p. 202
[58] Mr Atkins, AFP, Evidence, p. 159
[59] ibid.
[60] Para 5.102 of the report refers
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