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Chapter 6

Further Aspects of Controlled Operations

6.1 Having examined in the preceding two chapters the issues of the approval and accountability processes for the NCA's involvement in controlled operations, in this chapter the Committee draws together suggestions for reform of the Commonwealth legislation in relation to the following four areas: the scope of the legislation; the timeframe for validity of certificates; retrospective authorisation, and civilian involvement.

Scope of the legislation

6.2 Under Part 1AB of the Crimes Act, a certificate for a controlled operation may only be obtained for the investigation of offences against section 233B of the Customs Act 1901 and 'associated offences'. Section 233B creates a series of offences relating to narcotics such as the possession without any reasonable excuse of a prohibited import, the bringing into Australia of any prohibited import, conveying of a prohibited import, and conspiracy to import a prohibited import.

6.3 By comparison, the State legislation is much broader. The NSW Act allows operations in relation to 'criminal activity and corrupt conduct' [1] regardless of subject matter; and confers immunity from criminal liability in respect of any offence committed within the terms of the authority for the operation. [2] The South Australian Act allows operations in relation to the investigation of any indictable offence, and some summary offences [3] and confers immunity from criminal liability for any offence committed by 'an authorised participant' taking part in the operation in accordance with the terms of the approval [4].

6.4 Several reasons were advanced as to why the scope of Part 1AB of the Crimes Act should be broadened.

Commonwealth legislation more restrictive than State legislation

6.5 It was pointed out to the Committee that, compared to the legislative regimes available in some of the States, the Commonwealth regime was restrictive. The AFP, for example, described the States regimes as more flexible, broadly based and less complex than that applying under part 1AB of the Crimes Act. [5]

6.6 The DPP considers that the present approach as reflected in Part 1AB should be abandoned in favour of the more open-ended approach which has been adopted in the Law Enforcement (Controlled Operations) Act 1997 (NSW). Under that legislation provision is made for a controlled operation to be authorised where the purpose of the operation is to obtain evidence of a `criminal activity', which is defined to mean `any activity that involves the commission of an offence by one or more persons.' The DPP can see no reason why the ambit of the Commonwealth legislation should be restricted to the investigation of Commonwealth drug offences. [6]

6.7 The Police Federation of Australia is in favour of the scope of the Commonwealth controlled operations legislation being broadened so that it is capable of being used in a wide variety of criminal activities. The Federation's Chief Executive Officer, Mr Terry Collins, said it was `illogical' that New South Wales police working with Queensland police and perhaps with the Federal Police in a joint operation would have different levels of coverage. The practical result is that when working in a joint operation with the NSW Police, the AFP or the NCA will rely on the New South Wales certificate, which has that widest possible interpretation. If that is the result that they are achieving anyway, Mr Collins argued it is illogical for legislation not to recognise it:

In other words, if the NCA have legislation now that is less than New South Wales and they need it, then they will continue to seek the certificate from New South Wales and operate under that. Therefore, why wouldn't you bring the NCA legislation … as a blueprint, if you will, for all state legislation? Then that gives us our maximum protection, we would argue. [7]

NCA needs to be able to investigate other crime

6.8 The effect of the limited scope and utility of the controlled operations legislation is that there are activities that the NCA cannot take part in and arguably has resulted in `lost opportunities'. NCA Chairperson Mr John Broome said that by broadening the scope for controlled operations, there would be a significant increase in the NCA's capacity to detect and deter significant criminal activity. The result would be that the NCA would have more success. [8] There is no offence, for example, of drug trafficking under the Customs Act 1901. [9] This constitutes a limitation from an operational perspective because there will frequently be clear evidence of trafficking by the overall organiser or distributor but that person will typically be one step removed from the actual importation and possession of the prohibited import. Consequently, the NCA cannot obtain a controlled operations certificate to investigate the criminal activities of those people.

6.9 The NCA argued that the legislation would be a more potent tool if certificates could be given in relation to investigations into a wide range of offences or a course of dealing, such as in New South Wales. Certificates could then be sought in investigations of high level traffickers and other heads of criminal networks not directly connected to offences under section 233B of the Customs Act. Further, certificates could be sought at the commencement of operations in respect of a course of conduct, rather in respect of collecting evidence of specific offences that come to attention as the investigation unfolds. Finally, the NCA submitted that controlled operations should not be linked to narcotics investigations alone, as the technique is useful in investigations into a wide range of criminality.

6.10 The NCA proposed that the legislation could be amended so that controlled operations certificates are available in any investigation or any narcotics investigation conducted by the NCA. This would ensure that certificates would not be available in criminal investigations involving less serious criminal activity. There are several reasons why this should be done including that:

• NCA investigations are into serious criminal offences, are multi-jurisdictional and may not possess clear evidence of narcotics importation;
• controlled operations are important to the effectiveness of narcotics investigations and should be available in a wider range of situations; and
• while the majority of the narcotics trade takes place in Sydney, the NCA is not included in the Law Enforcement (Controlled Operations) Act 1997 (NSW) though that aspect of the legislation is currently under review. [10] Accordingly, controlled operations cannot be approved under the legislation by the NCA Chairperson or Members. As a result, the NCA has a lesser ability to conduct controlled operations than its operational partners in New South Wales. It is undesirable for the NCA to be placed in a position of being less effective than it ought to be due to the uneven operation of Commonwealth and State law. [11]

6.11 The DPP claimed that the present restriction of controlled operations to Commonwealth drug offences has adverse consequences. First, drug related investigations will often reveal evidence of other serious crimes such as money laundering, tax evasion, bribery, forgery and corruption type offences. That is, there will often be Commonwealth and state offences involved with those who participate in that trade. The admissibility of that evidence may be contested at a resulting prosecution. Secondly, it can place the investigator in the position of having to choose whether to act unlawfully or to abandon the pursuit of evidence of serious offences. Thirdly, it can place the DPP's office in an invidious position in that an investigator may seek some indication that he or she will not be prosecuted for possible involvement in offences that are not authorised under Part 1AB.

Corruption

6.12 It was argued that the capacity of the NCA and other law enforcement agencies to investigate corruption is reduced because such investigations do not come within the terms of the controlled operation legislation. Queensland Crime Commissioner, Mr Tim Carmody, said that without the ability to conduct controlled operations to detect corruption within their own organisations, there is a gap in the ability of law enforcement to regulate itself from within or through anti-corruption agencies:

They cannot set a trap to catch a crook in a context that is going to work. You need it from an anti-corruption point of view as well as from an anti-crime point of view. Controlled operations legislation actually enhances the anti-corruption armoury rather than diminishes it. [12]

The nature of organised crime: sophisticated, globalised and victimless

6.13 It was contended by a number of participants that the characteristics of organised crime are such that controlled operations are a necessary tool. The AFP believes that the sophistication and globalisation of organised crime, particularly at the international level, has created a requirement for controlled operations to be utilised and applied against a range of criminal activity outside the limitations of Part 1AB. [13]

6.14 Mr Brendan Butler, Chairperson of the Criminal Justice Commission, described organised crime as being typically committed in secret and seemingly victimless, although there are, of course, victims at the end of the chain of criminal activity. Other police work is ordinarily initiated by a complaint that someone has been assaulted and there is an apparent victim, `the blood-stained body on the floor'. In those cases, it is relatively easy to identify the offence and to commence the investigative process. By comparison, the investigation of organised crime is different. There is no victim to start with, no `blood-stained body'. In organised crime like drug offences, corruption and people trafficking (illegal immigration) criminals deal with criminals. Neither party to a transaction is likely to make a complaint to the police. Therefore, different investigative tools are required to seek out that sort of criminality. The only way is for covert operatives to infiltrate the criminal group to detect offences and obtain evidence of their commission. Mr Butler said the need to use undercover officers is not limited to drug investigations. It is particularly important in relation to the investigation of corruption offences and some of the fraud and money offences:

I urge that the NCA's scope be extended there. It seems inappropriate that there be different sorts of rules – a clear legislative scheme in relation to drugs and then a no man's land, working with judge made law, in relation to all other offences. [14]

6.15 The Committee notes that the issue of people trafficking, where organised crime groups facilitate illegal entry into Australia, is a current issue that has potentially enormous ramifications for Australia's security and stability. Again, the victims of the chain of that criminality are difficult to identify. Yet it is a serious problem for Australia. The Committee notes that the use of controlled operations would serve as an important investigative tool in relation to that kind of criminality.

Community expectations

6.16 It was claimed that the limited scope for conducting controlled operations under the Commonwealth legislation is no longer appropriate in terms of the community's expectations of law enforcement. The AFP asserted that there is an increasing expectation in the community for more concerted action against the international supply of drugs. [15]

Constraints on law enforcement agencies to follow the money trail

6.17 Substantial evidence was provided to the Committee that the limited scope of controlled operations under Part 1AB constrains the ability of law enforcement agencies, like the NCA and the AFP, to participate with overseas law enforcement agencies in large scale international money laundering. [16] AUSTRAC advocated that consideration should be given to amending the controlled operations legislation so that operations can be conducted to investigate offences involving the proceeds of crime and the `money trail':

By way of clarification, the rationale behind "money trail" investigations is that the "kingpins" of crime keep very much closer to the money generated by their illicit activities than they do the "product" of their illicit activities. By following the money as opposed to the product (for example, the drugs) it is more likely to lead to the top of a criminal organisation. [17]

6.18 The NCA has used AUSTRAC's information to identify `kingpins'. However although Financial Transaction Reporting (FTR) information provides a money trail, that is not always sufficient. AUSTRAC claims that the ability to undertake controlled delivery of proceeds of crime would increase the efficiency of the NCA's efforts to apprehend the kingpins. [18]

6.19 AUSTRAC, through it's international work, has had the advantage of studying ways in which other jurisdictions investigate serious crime like money laundering and major tax evasion. A range of countries have controlled delivery in relation to money laundering, for example the United States, Belgium and the Netherlands. According to AUSTRAC, the technique of controlled deliveries, however, is used in all jurisdictions, some more than others. Director of AUSTRAC, Ms Elizabeth Montano, said that while it is not a power that should be used every day, in appropriate circumstances, it is considered to be a very useful tool amongst a range of tools. [19] AUSTRAC has concluded that, as an investigative tool, controlled deliveries would be appropriate for use in the Australian context.

6.20 The recommendation by the Financial Action Task Force that controlled deliveries should be used as an investigative tool in the international sphere of finance reflects the international acceptance and usage that this method has. [20] AUSTRAC advocated that there should be authorised controlled deliveries in relation to funds:

It is not only drugs and nuclear fissionable materials and all those sorts of things that are valuable and can be the subject of controlled deliveries. Money itself, particularly in our work, is seen to be a very useful commodity to be passed around in suitcases. It still does happen, by the way, and we have a big trend in that at the moment in our analysis. There is a lot of cash moving. It is not a cashless society, nor is it going towards being a cashless society. There is still a lot of money moving, and a lot of money moving in very suspicious ways. [21]

6.21 A `general' anti-money laundering reference was given to the NCA by then Minister for Justice, the Hon Duncan Kerr on 26 May 1994 (known as the `Limbeck Reference'). AUSTRAC believes that the `philosophy' underlying the Limbeck Reference should be adopted in respect of the fight against organised crime. The indications from AUSTRAC are that many criminal groups and activities can be detected by first finding their financial transactions. For the NCA to do this, it must be empowered to undertake investigations without knowing in advance who the criminals are. The Limbeck Reference allows it to adopt this approach. Consequently, AUSTRAC believes that the scope of controlled operations should be broadened to include investigations of the `money trail':

The financial sector is a wonderful instrument. It allows amazingly quick transfers of funds. It allows criminals to do some terrific things. For the law enforcement agencies, in working out their strategies about how they are going to actually proceed with an investigation, the range of tools available to them is very important. It is important in terms of how fast they can react to what is going on. How fast can they intercept? How fast can they watch? How fast can the people who are under cover do things? How fast can they react? What can they do without having to go back to base? All those sorts of things are very important. [22]

6.22 AUSTRAC is engaged in information sharing with agencies in countries where the controlled delivery of funds is used as an investigative tool. Although AUSTRAC has not been involved in any operations of this nature, its Director Ms Montano said it was not hard to see how it could arise. International organisations involved in any kinds of criminality, for example drugs or paedophilia, would also necessarily be dealing with the proceeds of crime. The ability to conduct controlled deliveries in relation to money as well as the product that produced the money would be a very useful for tool for law enforcement agencies to have. [23]

6.23 Prior to the Ridgeway case, AUSTRAC was asked to cooperate with the international counterparts of some primary investigative agencies. AUSTRAC was asked to establish relations with Australian banks, to facilitate and monitor the movement of funds through accounts and to hold that information on behalf of the primary agencies that were investigating. AUSTRAC was also to act to prevent the information from being picked up by other agencies in case another agency intervened and affected the investigating agency's operation. This type of activity ceased when the Ridgeway decision was handed down. [24]

6.24 The Australian Federal Police Association also supported the extension of the scope of controlled operations to the investigation of money laundering. AFPA noted that the commission of narcotics offences is often associated with money laundering offences. Technology is making it increasingly easy for money to be laundered quickly and without being detected. The Committee was told that as technology changes the way financial transactions occur, it is increasingly difficult for law enforcement agencies to counter these types of activities. The AFPA called upon the Committee to recommend expanding the scope of controlled operations to cover not only narcotics investigations but also other types of serious criminal activity, in particular money laundering and other sorts of property crimes:

As we gallop towards the 21st century, a lot of these crimes that are committed, particularly money laundering and so forth, go hand in hand with narcotics investigations and, as technology gallops ahead, it is very hard for us as investigators to get hold of either the assets or indeed to trace the evidence, particularly with e-commerce. Transactions now occur in a millisecond, and it could well be in future that the only way to get those proceeds of crime, or the elements involved within the criminal activity, is to be a part of the criminal activity in some form, whether it be to set up a front bank or to place people within the criminal enterprise itself. Invariably they would be conducting unlawful activities, and certainly they need to be protected. [25]

6.25 In relation to the notion of expanding controlled operations to include investigations in relation to the money trail, Mr Broome said one of the key issues to be resolved is what kinds of operations ought to be able to be conducted. Should they be elaborate operations, as in the US and Canada, where law enforcement agencies are able to establish money laundering businesses for the purpose of identifying the users of those types of services? Alternatively, should they be confined to lower level operations, such as law enforcement officers working in an undercover capacity with criminals and laundering funds out of Australia.

6.26 According to the NCA, controlled operations in the financial sector often need to be conducted early in the process. Once funds have actually entered the financial system, there are significant limitations on what can be done to reverse those transactions. That is, once funds have moved from one branch/bank to another, or externally, the funds cannot simply be removed because there is a whole range of guarantees provided through the financial system that will honour the order to pay.

Scope of protection for covert police operatives (and others)

6.27 Under the existing Commonwealth legislation, covert police operatives have limited protection from prosecution in respect of certain offences committed for the purposes of authorised controlled operations. That protection is limited to `narcotic goods offences' only. A `narcotic goods offence' is defined as an offence against section 233B of the Customs Act 1901, certain specified offences relating to the possession, importation or exportation from Australia of narcotic goods, and State and Territory offences which involve the element of possession. [26]

6.28 This contrasts with the wider immunity conferred in the New South Wales and South Australian legislation. In New South Wales, immunity is conferred in relation to any offence committed within the terms of the authority for the operation, such operations being allowed to investigate `criminal activity and corrupt conduct'. [27] Under the South Australian Act, immunity is conferred from criminal liability for any offence committed by an authorised participant within the terms of the approval for the operation, which may be to investigate any `serious criminal activity'. [28]

6.29 The Attorney-General's Department submitted that the Government has accepted that there is a need for Part 1AB to extend to the investigation of crimes other than drug trafficking. Law enforcement agencies propose that this should be accompanied by a corresponding widening of the immunity from criminal liability in relation to the range of offences that might be committed by them in the course of an operation:

If law enforcement officers are to infiltrate criminal schemes and gain evidence of those schemes, those officers will potentially be party to various forms of illegal conduct, eg, money laundering or the smuggling of weapons (depending on the nature of the criminal scheme). Such operations may continue for long periods, even years, and law enforcement agencies argue that it is impossible to define in advance the subject matter of the offences an undercover officer may need to commit. Sophisticated criminal schemes often engage in a diverse range of criminal conduct, the scope of which tends to change from to time. [29]

6.30 The Department submitted that the current legislation is not even broad enough to allow the effective infiltration of drug networks because such infiltration involves exposure to fraud, corruption and other forms of crime, for which Part 1AB confers no immunity.

6.31 According to the Department, law enforcement agencies propose that controlled operations should be allowed in relation to any infiltration operation, regardless of subject matter, subject to appropriate authorisation and accountability requirements. Covert police operatives would then be shielded from criminal liability in respect of any offence necessarily committed in the course of an operation. The Department stated that:

The breadth of the proposed immunity is justified by the proven effectiveness of infiltration operations in securing evidence of organised criminal activity. [30]

The proposal would bring Part 1AB more into line with the NSW Law Enforcement (Controlled Operations) Act 1997 and the SA Criminal Law (Undercover Operations) Act 1995. [31]

State supply offences

6.32 In terms of the present scope of Part 1AB and its application to State offences, the Commonwealth DPP made the point that it does not provide any immunity for involvement by Commonwealth investigators in State supply offences but is restricted to offences involving possession. For those reasons, the DPP supported an extension of the ambit of controlled operations to cover all Commonwealth offences in order that a Commonwealth investigator involved in the technical commission of such an offence would not be acting unlawfully. [32]

6.33 The AFP similarly complained about the lack of protection for its officers under the existing law from State and Territory offences and the lack of coverage to those assisting the police in controlled operations. [33]

Testing of covert operatives

6.34 An important argument in favour of expanding the scope of controlled operations is the need to avoid the detection of covert operatives by criminal groups in which they are working. According to NSW Crime Commissioner Mr Phillip Bradley, covert operatives are frequently subjected to `testing' by the criminal groups they are trying to infiltrate. The concern is that the current legislation is so restrictive in the way it permits operations to be conducted that when the limitations of investigators become known, they will be tested to see whether they try to delay matters in order to get a new authority:

A few years ago we were involved in a lot of operations which were designed to change the rules. For example, it was always the case that if you went to a drug purchase you would show the money and hang on to it until the drugs arrived. One of the tests that the criminals always used was to say, “Unless you allow us to take some or all of the money away, entrust us with it, then we are not going to deliver the drugs because we have not dealt with you before, or your credentials are at the ounce level and not at the kilogram level.” So we did what has now become known as “running and burning” - in other words, allowing large amounts of money to go into the night and, in some cases, not seeking to recover it, so that we would move to a higher level. [34]

6.35 Mr Bradley told the Committee that those operatives who are in a `deep cover' situation are likely to be given `jobs' to do by the criminals with whom they are associating so that the criminals can be sure of their `credentials'. These `jobs' will be of escalating degrees of seriousness, as the operatives gain the trust of the criminals. The `jobs' may start with something simple, like delivering an envelope containing money, but they may escalate to quite serious criminal activities:

It is not known what you might be expected to do, what test might be given to you as you go along in the course of immersing yourself in a particular group. I think it was in the Donnie Brasco movie where the undercover policeman was with a group of criminals and they killed a person in his presence. While that has not happened, as far as I know, in New South Wales, there would be situations which would arise where, if you were acting responsibly, you would attempt to stop that sort of serious crime from occurring. In doing so, you would put your own life at risk - you may die as a consequence. [35]

6.36 Mr Bradley favoured the position that the controlled operations legislation should be as specific as possible as to what can and cannot be authorised and that those things which an operative is incidentally engaged in should probably be the subject of the usual rules about the application of judicial discretion. [36]

6.37 Mr Carmody said the testing by criminals of their associates to establish their credentials is called 'street cred'. These secret organisations have got a lot to lose; the drug trade, in particular, is a very high-yield, low-risk business enterprise. It is a market-based operation and general business principles apply. As a first principle, businesses assess the risks to their profitability. In respect of organised crime today, and drug trafficking in particular, the most important risk is detection. That risk must be assessed as being so low that the drug trade can operate quite comfortably in this environment. The QCC published a recent report that showed that law enforcement recovers about 1.3 per cent of the heroin available annually in the Queensland market:

That has got to be a low-risk business enterprise to be involved in. So what we have to do is to acknowledge that we still have to keep doing that as best we can with the methodologies that we can devise and the legislative support we can have, and that is where the controlled operations come in. We also have to work smarter rather than harder. We have to attack the profitability motive and we have to make it more difficult for them to make money and keep it. So you need an integrated package. Controlled operations is an essential part of that package and so too is civil based confiscation. [37]

6.38 The Police Federation of Australia is concerned that members should not do anything that has not got the support of legislation:

Whilst we admire the entrepreneur, we worry for them … . At the end of the day, they are people who then find themselves coming to us with their problems. What they do on behalf of the Commonwealth government or the state government or their jurisdiction might be extremely noble, but we do not want them being exposed. The reality is that there is litigation now in this country against police officers that was not there several years ago - there is an increase in that. So our concern would be that there should not be too much opportunity for people to move outside of what is prescribed. Having said that, I know that there are circumstances, the greater good, the public interest … . [38]

6.39 In the Federation's view, it is appropriate for parliaments to decide what police and law enforcement agencies should be allowed to do. [39]

Fundamental argument against expanding the scope of controlled operations

6.40 President of the Australian Council for Civil Liberties, Mr Terry O'Gorman, argued that there is a very strong case for restricting controlled operations to high-level drug importation based on the fact that the underlying proposition of controlled operations is fundamentally unacceptable. That proposition is that law enforcement officers will be authorised to commit crime. Mr O'Gorman distinguished the use of controlled operations in drug investigations from investigation of white-collar crime. He argued that there was no justification in expanding the use of controlled operations for white-collar crime because that type of crime is almost invariably traceable through documentation, whereas `drugs is a different beast':

I worry considerably about the prospect of saying to police, “Now that we have sold, by the drug spectre, the idea to the public that police can commit crime in order to catch criminals, we will now put it into organised crime, white-collar crime and currency crime.” I think that is opening a huge Pandora's box. [40]

6.41 Professor Trevor Nyman, representing the New South Wales Law Society also argued against the expansion of controlled operations legislation expressing the Society's opposition to legislation that legitimates what would otherwise be unlawful activity. Responding to the suggestion that the controlled operations legislation should at least be expanded to enable the NCA to participate in controlled operations to investigate money laundering, he said:

I did not hear a word that was said this afternoon that persuaded me at all that the delivery of cash by a person who is sworn to uphold the law would be justified. The AUSTRAC role is a limited role in the assistance of real law enforcement personnel and, absent any written submission that would have given me further guidance, I saw nothing that suggested to me that members of AUSTRAC or law enforcement personnel ought to be encouraged to do what would otherwise be a breach of the law. [41]

Options for widening the scope of investigations for controlled operations

6.42 Many inquiry participants advocated that the scope of controlled operations in the Commonwealth legislation should be widened to reflect either the New South Wales or South Australian models. Queensland's Public Interest Monitor, Mr Richard Perry, however, suggested that the Committee should consider establishing a regime for determining which criminal activities should be subject to controlled operations. This would address the concern that controlled operations are being used across too wide a range of criminal activities.

6.43 Mr Perry told the Committee that a similar issue is currently being reviewed in Queensland. That issue is how to identify the range of offences for which surveillance devices should be available. At present, surveillance devices can be used in the investigation of 'serious theft'. This definition is problematic because it is unclear whether that means theft involving something worth a lot of money or whether it also includes a small thing that is of intense value to an individual or to the public at large. It is an extremely difficult debate to resolve. The same argument is relevant in relation to what is `serious criminal activity' as used in the South Australian controlled operations legislation.

6.44 Mr Perry advocated that two classes of circumstances should be specified in which a controlled operation can be authorised. The first class would be where applications for a controlled operation are made in relation to statutory criteria, as in the New South Wales legislation. For example, controlled operations could be used to investigate offences that carry a sentence of twenty years or more. The second class would be those offences which at face value are less serious, but which may have a compelling public interest. In relation to this second class, a break and enter, which carries a far lower term of imprisonment, is a typical example. Under ordinary circumstances, it would be inappropriate to conduct a controlled operation to investigate an offence of break and enter. But there may be certain circumstances where there is a public interest at stake that requires such an operation to be authorised:

Let us say that somebody breaks into Queensland University's biolab and takes a phial of something fairly significant. The offence itself, in legal terms only, is minor. The impact on the public interest by not having it resolved is significant. I think the way that it has to be done is to have these two classes of offences but to never go away from the fundamental proposition that these powers are, by their very nature, so significant and carry within them the seeds of such significant problems that they should be warranted only in the most particular and serious circumstances. You cannot do more than that, because the factual cases that you run into are so varied that it will defeat the skill of any draftsman to preview every possible circumstance. [42]

Innocent bystanders

6.45 In the course of determining the scope of controlled operations and the immunity that should be available to covert operatives engaged in controlled operations, the Committee was acutely aware of the need to also address the rights of other individuals who may be adversely affected by a controlled operation. In his submission, the Queensland Minister for Police and Corrective Services advised the Committee that one of the benefits of having legislation to regulate controlled operations is that it provides an opportunity to address other issues associated with those types of operations. One such issue is the provision of a mechanism for the payment of compensation to members of the community who suffer loss as a result of a controlled operation. [43] The Committee is of the view that the consideration of the provision of such a mechanism is an appropriate adjunct to the consideration of immunity from criminal and civil liability for covert operatives during a controlled operation.

Conclusion

6.46 The Committee is persuaded that the current scope of controlled operations in Part 1AB of the Crimes Act 1914 is too narrow and does not allow the NCA to operate to its fullest capacity. The Committee is particularly concerned that the NCA should be able to conduct controlled deliveries of funds and to follow the money trail. This seems to be imperative for the NCA's efforts against the drug trade.

6.47 The Committee is concerned, however, that the scope of controlled operations should not be widened by the use of vague and unambiguous terminology that may give rise to conflicting interpretation. This also applies to the suggestion that a formula for classification should be used. Different people may well assign different classifications to particular criminal activities.

6.48 In conclusion, the Committee has decided that the most appropriate course is to codify those criminal activities that Parliament considers should be the subject of a legislative regime for controlled operations. Recommendation 11 is framed in terms of the definition of `relevant offence' in section 4 of the National Crime Authority Act 1984 which, by virtue of section 11 of that Act, defines the functions of the National Crime Authority. In addition, the Recommendation specifically includes money laundering and people trafficking to remove any doubt as to the Committee's intention that controlled operations should be legitimised in respect of these two key areas.

6.49 The Committee believes that the immunity provision for covert operatives should also be widened to take account of the additional kinds of controlled operations that should be available to the NCA under the legislation. The Committee has decided to recommend this wider immunity in terms of not only criminal liability but also civil liability. This will bring the Commonwealth legislation into line with the New South Wales Act. In terms of recommending wider immunity, the Committee is keen to ensure that immunity is contained within the parameters set out in the New South Wales Act. Immunity from criminal liability should only be available where the unlawful activity was authorised by and engaged in in accordance with the certificate authorising the operation. Similarly, immunity from civil liability should only be available where the conduct engaged in was done so in good faith and for the purposes of complying with the provisions of the legislation governing the controlled operation.

6.50 Having recommended that the scope for controlled operations should be widened and that covert operatives are adequately immunised in respect of their activities, the Committee believes the legislation should also address the rights of citizens who may inadvertently suffer loss or injury as a consequence of a controlled operation. A mechanism should be available so that such persons can apply to be justly compensated in those situations. The Committee has recommended the inclusion of a provision expressly acknowledging the right of such individuals to be compensated.

Recommendation 12: That the scope of the definition of `controlled operations' in Part 1AB of the Crimes Act 1914 should be widened to refer to operations carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for theft, fraud, tax evasion, currency violations, illegal drug dealings, illegal gambling, obtaining a financial benefit by vice engaged in by others, extortion, violence, bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory, bankruptcy and company violations, dealings or illegal importation or exportation of fauna into or out of Australia, money laundering and people trafficking.

Recommendation 13: (i) That the immunity conferred on covert operatives should be widened commensurately with the scope of controlled operations to confer immunity from criminal liability on any person authorised to participate in a controlled operation in terms of section 16 of the Law Enforcement (Controlled Operations) Act 1997 (NSW). As prescribed in section 16 of that Act, immunity should only be available where the unlawful activity engaged in has been authorised by and is engaged in in accordance with the Authority for the operation.

(ii) The Commonwealth Act should be amended to include a provision in terms of section 19 of the NSW Act to immunise covert operatives from civil liability. As prescribed in section 19 of that Act, immunity from civil liability should only be available where the conduct engaged in was in good faith and for the purpose of executing the provisions of the Act regulating controlled operations.

(iii) The Commonwealth Act should also be amended to include a provision expressly acknowledging that where an individual suffers loss or injury as a result of a controlled operation an action can be maintained against the State for compensation in respect of that loss or injury.

Timeframe for validity of certificates

6.51 Under Part 1AB of the Crimes Act 1914, a certificate authorising a controlled operation may remain in force for up to 30 days, such lesser time as is specified in the certificate or until the certificate is surrendered, whichever time comes first. [44] There is no provision for renewal of certificates. If an operation has to continue for more than 30 days, a new certificate must be obtained.

6.52 Under the Law Enforcement (Controlled Operations) Act 1997(NSW), the authority to conduct a controlled operation may remain valid for a period not exceeding three months. [45] There is also provision for authorities to be renewed. [46] In the recent Finlay Review of the NSW Act, the NSW Police Service recommended that that period should be extended to 12 months. Mr Finlay, however, recommended the extension of the term of authorities to 6 months, noting that such a period ensures that the status of the operation is appropriately reviewed.

6.53 Under the SA regime, approvals may be given for three months and are renewable. [47]

Investigations and operations may be protracted

6.54 The Attorney-General's Department noted that law enforcement agencies argue that the 30 day time frame under the Commonwealth legislation is `manifestly inadequate for the conduct of controlled operations':

In some cases, they argue, the effective infiltration of a criminal organisation may take many months or even years. [48]

6.55 Mr Michael Phelan, National Secretary of the Australian Federal Police Association, told the Committee that he thought it was appropriate for the timeframe for certificates to be extended, or alternatively, that provision should be made for the extension of certificates. He said the AFPA members carry on some major protracted inquiries that perhaps have their genesis overseas and take a long time to get to Australia and that such operations take more than 30 days. [49]

6.56 A different perspective was taken by the NCA. In relation to whether the timeframe for certificates should be extended, Mr Broome said that while he knew other agencies have argued for an extension of time and that in his view an extension to three months would be appropriate, such an extension, while desirable, is not critical:

… if one of the ways that people can feel more comfortable and confident that there is an appropriate degree of oversight is to keep the time frame at a month, that is something we could certainly live with, although I think you can make a very reasonable case for, say, a three-month time frame. [50]

6.57 Mr O'Gorman, on the other hand, was `sympathetic' to the argument that the time frame for certificates should be extended from 30 days to 60 days, but only if the approval process is changed so there is no longer the cosy arrangement whereby senior police officers issue them. [51]

An important safeguard

6.58 The NSW Law Society urged the Committee not to recommend extending the 30 day limitation period because it operates as an important review mechanism. The Society noted that, since the NSW Act came into operation, not one application for an authority by any agency had been refused and that it was quite common for more than one certificate to be issued in relation to each investigation. In practice, many investigations are conducted over long periods of time and many of the certificates issued expire before the controlled operation actually takes place. The need to re-apply for certificates every 30 days is an important safeguard in the monitoring of controlled operations and the period should not be extended. [52]

6.59 Mr Broome informed the Committee that the reason why no applications had been rejected is because an application is not made unless those making it believe that it is appropriate and that there is a reasonable chance that the person involved is going to approve it. Mr Broome said there is a significant standard in place in relation to the making of applications for controlled operations:

So far as our organisation is concerned … we know what is needed before an application is going to be considered, let alone approved. What is required to comply with the statutory requirements is a very full statement of what is known about the operation, which sometimes will not be a lot at all, and I will probably ask a series of questions if there is anything in the application which causes me any concern whatsoever. [53]

6.60 This was also the experience of the NSWCC. Mr Bradley said that the statistics do not reflect what happens in practice and he drew a parallel with the issuing of telephone interception warrants, where few warrants have been refused. The reality is that the applications have to be properly prepared and satisfy internal processes in the law enforcement agency before the application is heard by a court:

In fact, in the Federal Police arena, for example, they have to go through a number of internal approval stages before they get anywhere near the judicial process or the administrative process exercised by a court or the AAT. It is not something that is done lightly. That is just one of the misapprehensions that often apply where people have not had exposure to the practical application of those things. [54]

6.61 In respect of the NSW Law Society's observation that often a number of certificates are issued in respect of the same operation, Mr Broome said there are two reasons for that. The first reason is the short time frame itself. Certificates often expire before the operation is conducted or before it has concluded. The second is that `out of an abundance of caution', certificates are often obtained prematurely as the result of intelligence that something is being contemplated and when the NCA may not be aware of the kinds of details which will subsequently be sought. According to Mr Broome, it was the DPP's advice when this legislation was first enacted that certificates should be sought and obtained at an early stage in an operation to avoid a situation arising where a law enforcement officer might be involved in something which was not the subject of a certificate:

There is a bit of a catch-22 in that: you have to have sufficient information to enable you to at least make a sensible decision under the Act. At the same time, the DPP says, “Issue early and protect yourself in that way.” Obviously as time progresses more information will come to light, and it may be that in the subsequent issuing of certificates in respect of the same operation greater detail is available and more information is put into place. Just to make the obvious point: if you are bringing cocaine from South America via a vessel, depending on the kind of vessel used and so on it may well take some months from when the initial intelligence of the operation comes to hand to when the product might end up on Australian shores. So you may go through one, two or three certificates in that time frame. [55]

Conclusion

6.62 The Committee accepts that there are some complex controlled operations that may require a longer period than the current 30 day period to be effectively and satisfactorily completed. While the Committee is keen to ensure that law enforcement agencies are not unduly burdened by unnecessary administrative paperwork, it also recognises that the requirement to renew certificates does act as a safeguard to ensure the timely review of authorities to conduct these operations. For this reason, the Committee has declined to follow the New South Wales model where, instead of applying for a new authority at the expiry of an existing one, law enforcement agencies can apply for a renewal.

6.63 In conclusion, the Committee has determined that the timeframe for controlled operations certificates should be extended but only to three months, notwithstanding the recommendation of the Finlay review to extend timeframes in New South Wales to six months.

Recommendation 14: That the timeframe for which an authority to conduct a controlled operation may remain in force be extended to three months. If an investigation exceeds that timeframe, law enforcement agencies must apply for a new certificate in respect of the same investigation.

Retrospective authorisation

6.64 There is no provision for retrospective authorisation of controlled operations under the Commonwealth legislation. This contrasts to the NSW position where section 14 allows for retrospective authorisation of unlawful activity in relation to life threatening situations. That exception, however, is subject to further restrictions. The approval must be sought within 24 hours of the unlawful activity having been undertaken and it is not available in respect of the offence of murder or any offence for which the common law defence of duress would not be available.

The Finlay Review

6.65 The Review of the New South Wales legislation by Mr Finlay considered a proposal to extend the retrospective authorisation provision. The proposition was that retrospective authorisation should be available in respect of unforeseen activities undertaken in a controlled operation where failure to do so would jeopardise either the operatives or the operation. The nature of the activities for which the retrospective authorisation is sought must be such that, had time permitted for prospective authorisation to be sought, the authorisation would reasonably have been approved. In addition, the application would have to be sought within 24 hours of the activity having been undertaken. This proposal would have extended retrospective authorisation to activities occurring before the commencement of an operation as well as during an operation.

6.66 The Review Report noted that the proposal arose from repeated advice by operatives that criminals are opportunistic:

Where a controlled operation is undertaken involving a group of practicing criminals, it is not uncommon that the target or the nature of their serious criminal activities will change so suddenly that a variation authorising the participants to engage in additional or alternative controlled activities would be too late even by telephone application.

In the result the opportunity to obtain evidence of the group's serious criminal activity or corrupt conduct or to frustrate it, is lost. [56]

6.67 The central argument against the proposal was that some variations to authorisations may be obtained by telephone in urgent situations, which should cover some of the unforeseen circumstances that arise. [57]

6.68 In addition, throughout the course of the Review, the ICAC raised the following arguments:

• if it were available, a refusal to give retrospective authorisation might have unintended adverse consequences on the admissibility of evidence worse than the mere fact that an unforseen activity was not included in a controlled operation;
• the availability of retrospective approvals may encourage inadequate consideration of the types of conduct which may occur in controlled operations;
• chief executive officers may be inclined to give retrospective approvals too readily and this may reduce confidence in the legislation. [58]
• it is unfair, unwise and unnecessary for a CEO to have to decide whether to retrospectively approve and make lawful that which was unlawful;
• it is undesirable to focus attention on the approval process and increase the potential for CEOs to be called to give evidence;
• conflicts of interest would arise for the officer which would be hard to resolve;
• increases the risk of officers embarking on foreseen unlawful activities expecting to obtain retrospective approval;
• not all unlawful activities will lead to a controlled operation and this could have adverse consequences; and
• retrospective approval is conducive to corruption – officers might make false applications to cover their criminal/corrupt activity.

6.69 The Finlay Review noted that there could be even further ramifications than those raised by the ICAC. For example, if a CEO refused to retrospectively authorise an unlawful activity, is there an obligation to prosecute or discipline the officer?

6.70 In the end, the Finlay Review rejected the proposal to extend the retrospective approval process preferring to allow the Act more time to operate in order to better judge the effectiveness of its provisions without extending the circumstances in which retrospective authority may be granted. Mr Perry agreed with Mr Finlay's decision to reject the proposal to widen the retrospectivity provision in the NSW legislation. [59]

Retrospectivity would increase uncertainty about the operation of the Act

6.71 Mr Bradley was of the view that to introduce retrospectivity into the Commonwealth Act would add to the uncertainty that presently exists in relation to the operation of controlled operations, its effect and consequences. Having had considerable experience in the operation of the NSW Act, Mr Bradley reported there is a degree of uncertainty about what does and what does not require an authority. This uncertainty would only be increased if there was retrospectivity:

I should also say that, as Mervyn Finlay also reported, there is a limit to the understanding of the way the act works and there is a need to educate police in particular. If there was a general perception that you could get approval after the event for things which were otherwise illegal, that could work some mischief in society. [60]

6.72 In addition, Mr Bradley reminded the Committee that a judicial discretion is available to cover those situations where undercover police officers are involved in illegality but the illegality is not covered by an authority. [61]

Retrospectivity would give necessary flexibility to protect covert operatives

6.73 Mr Collins argued that a process of retrospective authorisation would provide the flexibility that covert operatives need. He described undercover situations as being `very fluid' where things can happen to put operatives outside the certificate authorising the operation. Without the facility of being able to get approval retrospectively in relation to these sorts of things, Mr Collins claimed that the risks to professional police officers are increased. He said:

The law is not a precise thing. Criminal activity and the detection of it is not a precise science and so you need this flexibility. [62]

6.74 Mr Collins was concerned that everything that their members do should be covered by legislation. Accordingly, he supported the provision of retrospective authorisation as well as prospective authorisation on the basis that members should be protected in relation to unplanned activities as well as planned. In relation to police officers taking part in unplanned activities for the sake of an investigation, Mr Alexander, the President of the Police Federation of Australia said:

What they do on behalf of the Commonwealth government or the state government or their jurisdiction might be extremely noble, but we do not want them being exposed. [63]

Alternative option: judicial discretion

6.75 The AFP expressed opposition to retrospective authorisation of controlled operations. Assistant Commissioner Michael Keelty said that, from an operational perspective, retrospective authorisation would undermine the current standards required in the planning of controlled operations. Under the current arrangements (legislation and guidelines), the AFP requires its officers to plan extensively on the possible adverse outcomes that may arise during any operation. In the AFP's experience, the significant planning of operations by the officers has overcome many problems that might arise because of unplanned situations. There has been no significant need for retrospectivity to his knowledge.

6.76 Crimes do occur unpredictably during major operations and the need sometimes arises for officers to be involved in unplanned activities. Mr Keelty argued that where they arise, the most pragmatic way to deal with it is for the evidence to be tested for admissibility in the normal course. Mr Keelty said it is not possible to legislate for every possible and conceivable incident that might arise during an operation. [64]

The reason being that … to get retrospectivity really defeats the purpose of the act in the first place. The retrospectivity should be up to a more independent tribunal, in my view, because the actions of the officers will need to be judged in the circumstances. I would suggest to you that it undermines the intention of the legislation. We see nothing wrong with the legislation in terms of its intent; our difficulty is with its narrowness. [65]

6.77 In terms of unplanned activities and unanticipated issues arising during an undercover operation, Mr O'Gorman agreed that it was not acceptable from a community perspective that the operation should fail. Rather, he said it was a question of determining whether retrospective authorisation was the best process to ensure the operation continued. One of the difficulties with retrospective authorisation is that judges may be awed over the outcome of the operation and tend to rubber-stamp it. Mr O'Gorman believes that judges are not immune from media pressure and suggested that some judges might baulk at applying the law as it should be for fear that they might be subject to some media ridicule later on.

6.78 Mr O'Gorman suggested that the preferred course might be to go back to the common law and the discretions. He did not accept Mr Carmody's suggestion that under those discretions, officers wake up wondering whether they are going to `start work today as a copper and finish as an accused?' and referred to Mr Butler's evidence that such an action never happens. [66] Mr O'Gorman also didn't accept the suggestion by the PFA that there were civil actions being taken:

I would like to see from the police association the evidence that civil actions have been taken in that scenario. They often put that up as a bogeyman spectre, but I very rarely see the evidence that those cases are taken. [67]

Retrospective authorisation could be given to escape consequences

6.79 Messrs Bronitt and Roche did not support retrospective authorisation. Mr Roche quoted from a recent book entitled Drug Law in New South Wales where it was suggested that retrospective authorisation could be used to inappropriately shield police operatives from the consequences of their actions:

… the shooting of an innocent bystander who is rendered a quadriplegic by shots unlawfully fired by a participant in a police controlled operation, whether that participant is an officer or an informant, may otherwise give rise to a charge of assault occasioning grievous bodily harm. However, if the commissioner gives a retrospective authority, the participant is shielded from criminal and civil consequences of his or her action. [68]

6.80 As to what should happen when a covert officer is being tested, Mr Roche responded:

I would still favour prospective authorisation. In the situation you are describing, if it does come down to that choice, where you have not had an opportunity to gain urgent prospective authorisation, then I would prefer the person to walk away or, if they proceed, to take their chances with relying on a defence in that situation. That is not a firm opinion but that is my tentative one. [69]

Mr Bronitt said he would want to see that there is real evidence that this was causing operational constraints rather than an assertion that police officers have this fear that their operations would be jeopardised. [70]

NCA perspective

6.81 The NCA called for the provision of retrospectivity in life threatening situations in the same terms as are provided in the NSW Act. Referring to the rejection by the Finlay review of the proposal to extend it, Mr Broome noted that while the Review didn't recommend extending the retrospective provisions, the Review recommended keeping it. [71] In terms of the retrospective authorisation provisions available under the NSW legislation, Mr Broome said they were there to cover circumstances where the progress of the operation has to be changed because the safety of those involved in the operation or perhaps members of the public is threatened. The NSW legislation enables an appropriate person with the power to issue certificates to do so retrospectively.

6.82 Mr Broome agreed that the retrospective authorisation of certificates raises some issues. A significant issue is whether, after the event, there is a real discretion to say no. The retrospective authorisation of certificates would, however, be subject to scrutiny in any subsequent prosecution.

6.83 Mr Broome assured the Committee that the proposal to provide for retrospective authorisation is not about giving police officers a carte blanche to break the law. It is about recognising the fact that criminal activities and the operations to investigate them do not always go according to plan and that a device is needed so that the evidence obtained in the course of those investigations will not be ruled inadmissible:

If things go differently … it seems to me, on balance, to be reasonable to ensure that one of us can exercise the discretion to validate the evidence that has been obtained by issuing that retrospective approval. It is a difficult question to deal with. I think the focus needs to be on the purpose of controlled delivery certificates, and the purpose is not to let the police break the law. [72]

Civil liberty view

6.84 Dr Tim Anderson spoke of the NSW legislation as one that the NSW Council for Civil Liberties, of which he is Secretary, `abhors' and he suggested the NCA never seek refuge in it. He told the Committee that despite the provisions of section 14 of the NSW Act, prohibiting the retrospective authorisation of murder, it is arguable that the NSW law allows the commission of any offence up to and including murder. [73]

Conclusion

6.85 The Committee is generally opposed to retrospective approval of any kind, but particularly in these kinds of situations where the issue involved is the commission of unlawful activities by covert police operatives. At the same time, the Committee is keen to ensure that the safety of covert operatives is assured. In conclusion, the Committee has decided that retrospective approval should only be available in life threatening situations and so bring the Commonwealth legislation in line with that of New South Wales. Further, the conditions that apply to the granting of retrospective approval under the New South Wales Act should also apply under the Commonwealth Act. That is, the unlawful conduct requested to be retrospectively approved must have been engaged in for the purpose of self-protection or for protecting another person from death or serious injury and the application must be made within 24 hours of the unlawful conduct.

Recommendation 15: That Part 1AB of the Crimes Act 1914 be amended to include a provision to allow for the retrospective authorisation of controlled operations only where the life or safety of a covert operative is at risk, in terms of section 14 of the Law Enforcement (Controlled Operations) Act 1997. In particular, the amendment should include the conditions that the relevant unlawful conduct was engaged in only for the purpose of protecting an operative or other person from death or serious injury and that the application must be made within 24 hours of the unlawful conduct having been engaged in.

Civilian involvement

6.86 Civilians are frequently required to assist police with their investigations, including participating in controlled operations. The assistance rendered by civilians can range from something quite simple, on the periphery of an investigation, to a civilian playing a significant undercover role that is both central to the investigation and dangerous. The question that arises is whether such persons, given that they are frequently required and sometimes their cooperation may be essential to the success of the operation, should be protected from liability in relation to offences necessarily committed in the course of that assistance. As NCA Operations Manager, Peter Lamb, told the Committee:

… in the investigation of organised crime, informants are crucial. They are usually on the periphery, but at times they may well be entrenched in the central criminality. How you utilise them is one thing, and how you provide for their protection in terms of their involvement in the criminality is another. [74]

Classes of civilian operatives

6.87 There are different categories of civilian involvement in controlled operations:

• Innocent bystanders, eg bank tellers, accountants. The first class involves those civilians who innocently are involved in a consequential way to criminal activities. For example, a bank teller may become aware that somebody is making structured deposits into an account. If the police require their cooperation in an operation, those civilians may require some form of protection. As noted by Mr Butler of the CJC:

… civilian operatives are not always criminals. You can have non-police operatives who themselves have not been committing criminal offences but, because of their knowledge of the people involved or some other aspect, it makes them appropriate to use in that situation. [75]

The AFPA told the Committee that professional people who assist the police with investigations deserve protection:

Whether they be bank officers, accountants or lawyers, we will need civilians to assist for us to gather evidence and take possession of proceeds of crime. [76]

• Criminal civilian operatives, either low level or high level:
  1. Couriers coming through the barrier. Couriers who are detected at the barrier are described as `essentially low level desperados' who have been taken advantage of as much as they have sought to take advantage of the situation themselves. Given the chain of criminality involved in drug trafficking theirs is of the least significance.
  2. The engagement of informants in long term operations. The NCA has some operations where they involve informants in long-term operations. These people often have significant criminal backgrounds. One of the complicating factors with these type of informants in controlled operations is that they may be seeking to use the law enforcement agency and the grant of immunity to further their own criminal objectives, such as undermining a rival criminal organisation. It is important to be quite clear who is being protected in these types of situations. The community would need to be confident that the granting of immunities to these sorts of people was being exercised in the public interest and perhaps with greater safeguards than when it is authorising a sworn police officer.

6.88 The CJC distinguished criminal operatives from non-criminal operatives:

I think the concerns you have in relation to criminal informants and their use as operatives are real and ones that law enforcement agencies address. They can be addressed by quite tight processes in terms of the use of those operatives. It would be normal, for example, in our agency, if you are utilising an operative like that, to have what they are doing completely controlled. Everything they did would be the subject of monitoring and would be under considerable supervision. [77]

The Commonwealth legislation

6.89 As it currently stands, the protection afforded by a section 15M certificate under Part 1AB of the Crimes Act 1914 does not confer any exemption from criminal liability in respect of the acts of a civilian who participates in a controlled operation in conjunction with a law enforcement agency. Section 15I only provides immunity to `law enforcement officers'. A `law enforcement officer' is defined as: a member, staff member or special member of the AFP, a member of the police force of a State or Territory, a member of the NCA staff, an officer of the ACS and a member of a police force or law enforcement agency of a foreign country. [78] This means that any other persons who assist police are not shielded from liability.

Position in the States

6.90 The position in NSW and SA is different. In NSW, the use and activities of civilians in controlled operations are clearly confined. A civilian participant must not be authorised to participate in any aspect of a controlled operation unless the chief executive officer is satisfied that it is wholly impracticable for a law enforcement officer participant to undertake that aspect of the operation. Further, a civilian participant must not be authorised to engage in a controlled activity unless it is wholly impracticable for the civilian participant to participate in the aspect of the controlled operation without engaging in that activity. The NSW Act also states that a person is not acting unlawfully if they are acting in accordance with an authority. [79]

6.91 While in force, an authority for a controlled operation authorises each civilian participant to engage in the particular controlled activities specified in the authority. It is interesting to note that civilians have the same access to retrospective approval for activities engaged in during a controlled operation as police officers. If a civilian engages in unlawful activity during a controlled operation for the purpose of protecting a participant or any other person from death or serious injury, that civilian may, within 24 hours after the unlawful conduct, apply to the CEO for retrospective authority for that conduct. [80]

6.92 It should also be noted that under section 26 of the NSW Act, the DPP is to be notified if evidence has been obtained in the course of an authorised operation. This requirement has the effect of an accountability mechanism so that the DPP is always aware of when a civilian has been used in a controlled operation.

6.93 Procedures have been established within NSW law enforcement agencies to reflect the intention of Parliament that the use of civilians in controlled operations be confined to particular circumstances. In the NSW Crime Commission, for example, briefings take place where the person responsible for the conduct of the operation has to personally get undertakings from the civilian as to conforming with the authority. The civilian participant has to undertake not to do things that go beyond what the legislation allows, such as inciting people to do things that they otherwise would not have done. Most (but not all) of the civilians who are used by the NSW Crime Commission have been arrested by the Commission or another agency and are seeking some sort of assistance. [81]

6.94 In SA, civilians who participate in controlled operations incur no criminal liability by taking part in undercover operations in accordance with the terms of the approval. Under section 4 of the SA Act, the immunity is given to `authorised participants'. Authorised participants are defined as persons authorised under the terms of the approval to take part in the operations or, in the case of operations commenced prior to the Act, a person authorised by a law enforcement authority to take part in the operations. [82]

6.95 In Victoria, there is a short immunity provision in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) extending immunity to persons acting under written instructions from a senior sergeant or person of higher rank. [83]

Arguments for extending immunity to civilians

6.96 Several law enforcement agencies advocated that civilians who assist in controlled operations should be immune from liability in relation to those unlawful acts committed by them in the course of such an operation, although agencies differed in respect of how this issue could best be dealt with.

6.97 In the NCA's view, civilians who are informants ought to be covered by the scope of the certificate. They are vulnerable in three ways. First, they are often the people on the ground. Secondly, they do not get any protection under the legislation. Thirdly, it makes the prosecution more vulnerable because you have got their involvement, which will remain unlawful and therefore give rise to a negative exercise of the Bunning v Cross discretion.

6.98 The CJC advocated the inclusion of civilians in controlled operations legislation. The guiding principle being not to protect them from being charged with a criminal offence. According to Mr Butler, this had never happened. The main justification for legislative provision would be that it avoids the situation where people such as the CEOs of law enforcement agencies have to make determinations about whether a person is going to be asked to commit a technical criminal offence. Mr Butler said:

I just find that an unattractive thing for me to have to do. … I would much prefer to have it on the table as part of a legislative scheme where the decisions that I am making, as head of an investigative agency, follow a legislative scheme and what I am asking people to do is legal and subject to appropriate checks and balances. The important thing in all of this is that you enhance the accountability of the whole process by putting it on the table rather than putting one's head in the sand and saying, `Let everyone just go on doing it the way they used to,' and where the whole legal situation is rather clouded. [84]

Civilians: a valuable part of the investigation strategy

6.99 Law enforcement agencies use civilian informants for much the same purpose as covert police operatives. In some cases, such as where a law enforcement agency is aiming to infiltrate a criminal organisation, civilians may be the only viable investigative strategy. It is the view of law enforcement agencies generally that using civilians as undercover operatives can save valuable resources and get to the core of the problem really quickly. [85] This is because the civilian may have a pre-existing relationship with a member or members of the organisation that facilitates infiltration. The civilian may, in fact, be in a position of trust to the target of the operation because of past association or because the civilian has a criminal record [86]:

… one of the alternative ways to infiltrate the higher level of a syndicate … is to indoctrinate someone who is already part of the syndicate and have them working on your behalf. That is probably the better alternative. [87]

6.100 The Commonwealth DPP supports the extension of the immunity to civilian informers because of the assistance they render to police investigations. [88] Civilians are often involved in controlled operations where a courier has been detected at the Customs barrier in possession of narcotic goods and he or she agrees to cooperate with the police by making a controlled delivery of those narcotic goods. The success of those operations usually depends on the courier's cooperation. However, in making a delivery of the goods to the intended recipient, the courier is, in fact, committing offences against both Commonwealth and State law.

In the view of the DPP it is no answer to this criticism of the existing legislation that the conferral of an exemption from criminal liability is not necessary in order to ensure the admissibility of any evidence obtained. As indicated earlier, the objectives in enacting the Crimes Amendment (Controlled Operations) Act were not limited to ensuring the admissibility of evidence which would otherwise have been excluded in the exercise of the court's Ridgeway discretion. Once it is accepted that there are circumstances where it will be necessary for a civilian to participate in a controlled operation by arrangement with police then the appropriate course is to exempt such persons from any criminal liability they would otherwise incur by reason of the assistance they provide the police. [89]

Different treatment for police and criminals

6.101 The treatment of civilian operatives as opposed to police operatives has always been different, regardless of any controlled operations legislative framework. The CJC described the situation in Queensland, where undercover police operate without the support of legislation. In relation to the charging of undercover police and civilians for criminal offences committed while working on a controlled operation, Mr Butler said that in his experience, police operatives were never charged:

… no-one has ever suggested they should be charged and, indeed, they have not been. Directors of public prosecutions have constantly presented prosecutions where these people are the star witnesses. Judges have heard their evidence and, while recognising that there had been technical breaches of the criminal law, have nevertheless ruled that the evidence was admissible and had not been improperly obtained. [90]

6.102 By comparison, however, the situation in respect of civilian operatives is different. Where civilian operatives commit offences during a controlled operation, it is a matter for the subsequent decision of the DPP, as to whether those people should be given an indemnity. Indemnities are granted by either the DPPs or the Attorney-General, depending upon the particular jurisdiction involved. In Queensland, prospective indemnities are not available. There is a decision of the Court of Appeal to the effect that you cannot indemnify people in advance for the commission of criminal offences. [91] Under those circumstances, the CJC cannot promise civilian operatives an indemnity. Rather, civilian operatives have to await the determination of the DPP as to whether an indemnity can be provided at a later stage, after the act has been committed. [92]

6.103 Similarly, the indemnification procedure for civilians in NSW has also been retrospective in terms of the DPP deciding not to proceed with a prosecution because of recommendations given by the investigating authorities. The position of civilians in NSW, however, has to be read in conjunction with the immunity available under the NSW controlled operations legislation referred to in paragraphs 6.90-6.92).

Civilians may be critical link in the criminal chain

6.104 A principal argument in favour of extending immunity to civilians is that such persons are frequently required and their cooperation is often essential to the successful outcome of the operation. Many controlled operations arise at the barrier and involve the detection of drugs and identification of the courier. The police enlist the assistance of the courier so that they can follow the drugs to the intended recipient who is usually far more involved in actual drug trafficking than the courier. Yet, unless the police can enlist the courier's assistance, there would be a much-reduced chance of tracking the intended recipient of the drugs. Under these circumstances, it is argued that it would be advantageous if law enforcement agencies were able to guarantee some type of immunity:

For example, a drug courier who agrees to assist police may need to carry the narcotics on to the intended recipient if the recipient is to take delivery. At present, the courier is potentially liable for offences relating to possession of the narcotics. [93]

The evidence is vulnerable

6.105 In addition to civilians/informants being vulnerable to a possible prosecution, the law enforcement agency also has to consider that evidence gathered by the civilian during the operation might be excluded on the grounds of public interest (the Bunning v Cross discretion). Therefore, agencies have to weigh up the possibility that the use of informants in a controlled operation may give rise to challenges by a defence subsequently which could leave the prosecution at nought:

… the purpose of the immunity is twofold: it is to protect those who are involved in the operation from any potential prosecution for the unlawful acts which they commit, and it is done for the purpose of ensuring that the subsequent evidence which is obtained cannot be challenged on the basis of the unlawful behaviour.

So, if you leave the informant vulnerable, you leave the evidence vulnerable. That is the trade-off. [94]

6.106 There is an alternative view that the conferral of immunity on the civilian participants is not necessary to ensure the admissibility of evidence. [95]

Lack of coverage for civilians affects operational decisions

6.107 Mr Broome pointed out that the lack of legislative coverage for civilians impacts on operational decisions. Although the use of civilians/informants in drug related matters is a relatively commonplace occurrence, it remains a difficult issue that requires much consideration by the agency conducting the controlled operation. When deciding whether or not to use a civilian, one of the primary considerations is that they are vulnerable to prosecution for their actions throughout the operation. Notwithstanding that there may be an expectation that the DPP would consider a prosecution of a civilian participant as being inappropriate, there is no guarantee. Further, the agency also has to factor into the equation the possibility that the admissibility of any evidence collected without the benefit of a certificate may be called into question at a subsequent prosecution. [96]

6.108 Mr Broome contended that there have been cases, and some quite recent, where the prosecution has been dropped because of the issue of the informant's conduct. The reason for the decision not to proceed was based primarily on the need to avoid disclosure of the informant's activities. The problem of disclosure varies according to the stage of the operation. Where an informant has been used on a number of occasions, for example, on a number of smaller jobs leading up to, say, a major importation of heroin, if they are not protected by the certificate, their cover may be disclosed in the course of prosecution. In addition, they may still be charged with an offence in relation to their activities. In summary, Mr Broome said:

What I am suggesting is that if we have prior knowledge of that involvement, if it is appropriate to indemnify an undercover officer, then it is no less appropriate to indemnify the behaviour of the informant. … They are saying, `Unless you can assure me I am not vulnerable, I do not want to go ahead.' That is the sort of trade-off that you are involved in. [97]

Personal safety and welfare of civilian operatives

6.109 The Committee is mindful of the fact that persons who agree to assist law enforcement agencies sometimes do so at the risk of their own personal safety. This is particularly so when the investigations involve organised criminal groups and serious criminal activity. The Committee was informed of the murder of a woman who gave evidence against her husband in relation to a double murder involving bikies. Although the woman was not working in an undercover capacity, the case demonstrates the high price that can be paid for assisting police:

She was shot while she slept alongside her six-year-old son a few months ago. I think that case perhaps highlights the role of informants and the protection of informants as something requiring attention by our parliaments and by our politicians. I spoke to the police officers only recently involved in that matter who had to deal with that woman who had the courage to give evidence. It just struck me when you made that point about the status of an informant. I am not just talking witness protection; I am talking the involvement of people in this. I think we have not done enough about it. [98]

6.110 It is argued that if law enforcement agencies, and by inference, society, encourage civilians to engage in undercover work, then a corresponding obligation arises to take account of the personal welfare of those people. That obligation should include providing protection from liability in respect of unlawful acts engaged in while acting under instruction during the undercover operation. Providing that protection would acknowledge the important part civilians play. NCA General Manager, Operations, Mr Peter Lamb told the Committee:

Whilst these people may well be criminals themselves – they may be on the periphery but at times they may be at the heart of things – they are the single biggest tool to elevate us to the major profit takers of organised crime. Therefore, the protection that is afforded law enforcement officers in the legislation should be in some way extended to cater for civilians. [99]

Formalising the relationship between investigator and informer

6.111 Although informers have been a longstanding part of traditional policing, the relationship between investigators and informers has been largely unregulated, left to the discretion of individual police officers and supervisors or to procedural guidelines. By contrast, one of the consequences of including civilians in controlled operations legislation has been the injection of some formality into the relationship between investigators and informers. This is due, in part, to the reporting requirements in, for example, the NSW Act. An important requirement is to report the existence of authorities where evidence has been gathered as a consequence of an authority. [100] It is also a requirement that within 28 days after the operation, the principal officer in charge of the operation give a written report to the CEO. Further, the NSW Ombudsman must annually report to Parliament and the report must include, amongst other things, details of the number of civilian participants in the operation and the number of civilian participants who have engaged in controlled activities under an authority. This has changed the nature of the relationship:

The investigator-informer relationship has been too casual in the past. There has been not enough reporting of associations, and there has been not enough care exercised in how the relationship develops, what is disclosed to informers and a range of things. Some of the instances of corruption – for example, those we saw at the Royal Commission – I think came out of that. I think all of the Royal Commission problems were supervision problems, and supervision is necessary with informer relationships. [101]

6.112 The NSW legislation has caused the development of specific procedures for dealing with informers that have formalised these relationships, especially with a view to encouraging better supervision. The NSW Police Service, for example, has developed a complex informant management plan that raises an obligation for the police service to brief the informer, to obtain certain undertakings and to report that that has been done. Similarly, the NSWCC has also set out procedures for dealing with informers:

At the Crime Commission, when we enlist informers to do particular things, we often have a very formal process, usually involving a hearing, whereby the informer is told a number of things, including, “Don't step over the line. If you do, you'll be in the same position as any other criminal, and don't cause people to commit crimes” – those sorts of things. I think that that sort of formality is positive. [102]

Options for reform

6.113 A number of options were proposed for dealing with the involvement of civilians in controlled operations:

• prospective immunity provided as part of the legislative framework governing controlled operations;
• the provision of retrospective indemnities after the operation;
• support at the time of sentencing; or
• a graded system of indemnities.

 Prospective immunity

6.114 The Attorney-General's Department supported the notion that there are circumstances where civilians should have statutory immunity from prosecution but noted that there are difficulties associated with it. In particular, the Department was of the view that there are dangers in giving a broad, open-ended immunity given the lack of a defined `duty' (or disciplinary rules) to which civilians are subject. Law enforcement officers, on the other hand, are subject to those kinds of disciplinary controls. The Department concluded that if prospective immunity is to be given to civilians in relation to certain criminal offences, then an appropriate means to limit and control that immunity should also be provided. [103]

6.115 The NCA preferred the provision of a prospective statutory immunity for civilian participants. In the NCA's view, the current position where informants can be considered for an indemnity from prosecution after the operation is completed, is unsatisfactory. By contrast, a clear prior statutory immunity reflects the true importance of the role of those operatives in undercover work:

The role of a civilian participant is essential to the success of many controlled operations. In some cases, the safety of an undercover officer will depend on an informant or agent. There is no logical distinction between the legislative approaches adopted, particularly as, in most cases, approval may be needed under both Commonwealth and State legislation. [104]

6.116 The NCA suggested that this lack of legislative protection for informers could be remedied by inserting a subsection in section 15I to extend the immunity to include those acting on the instructions of police. Terminology could be adopted similar to that in paragraphs 3G(b) and (c) of the Crimes Act concerning assistance given in the execution of a warrant by duly authorised persons. [105] Further, Mr Broome suggested that the involvement of civilians in controlled operations should be a matter for consideration by the person who issues the controlled operations certificate. [106]

Prospective immunity for civilians: A role for the DPP?

6.117 The DPP was in favour of giving prospective undertakings to civilians/informers where they agree to act in accordance with a set of arrangements with a law enforcement agency during a controlled operation. [107] The DPP was not, however, of the view that the DPP itself should grant immunities. This view is based on the fact that the prosecutorial and the investigative functions are separate functions and it would be unacceptable for the one authority to do both. The prosecution should not be a position of giving a statutory immunity on the basis of a hypothetical situation or in the expectation that certain events might unfold. Operations often unfold in ways quite different from those initially expected. [108]

6.118 DPP Principal Advisor (Commercial Prosecutions and Policy) Mr Grahame Delaney also pointed to some operational issues:

• investigative decisions may need to be made in a very short time frame and the consideration by the DPP of whether a particular civilian should be granted prospective immunity might cause delays; and
• there may be some reluctance on the part of investigators to outline the nature of the operation, the extent to which it has gone and the prospective way in which they hope it will go. Such a proposal would result in the blurring of the prosecutorial and investigative functions.

6.119 Mr Delaney distinguished the granting of immunities prospectively from the current situation where it grants immunities or indemnities after the event. Mr Delaney said that this discretion is exercised in accordance with tight guidelines that require, amongst other things, a statement from the witness seeking immunity, the investigator's views on the witness's credibility and the importance in the overall scheme of the particular prosecution.

6.120 Although Mr Delaney assumed that there would be no constitutional objection to power being conferred on a DPP to issue prospective immunities to civilian participants, the DPP cannot do so under its present legislative arrangements. Mr Delaney also referred to a recent case in Queensland where the Criminal Court of Appeal held that no immunity could be granted in future. [109]

6.121 In relation to the suggestion that the DPP should be the body approving the involvement of civilians in controlled operations, the AFP said:

One of the problems with involving the DPP is that, once you make them a formal participant in the investigative process, in the trial their investigative involvement becomes part of the trial process. [110]

And:

I think it is a pragmatic problem that, in trial, the fact is the defence sees the bundle of papers and sees the DPP's involvement, and that is another issue that gets caught up in the trial. You have the DPP in the uncomfortable position of possibly having to put its officers into a witness box, its officers giving evidence. I think it would be an uncomfortable situation to be in. [111]

Arguments against prospective immunity for civilians

The potential for misbehaviour of civilian participants

6.122 Mr O'Gorman rejected the proposal to grant prospective immunity to civilian participants. He referred to the Trident scam in Queensland which illuminated some of his concerns:

In 1996 … retired Supreme Court judge Bill Carter QC presented a report under the aegis of the CJC where he reported on a number of Queensland police who were standing by in car parks near railway stations while crims stole the cars – mostly of low income people in poor suburbs – so that the police could then monitor the ring of receivers to whom those cars were passed on. You only have to look at that particular report and the activities of a fellow called Riesenweber who was later convicted to see the very worrying consequences of allowing civilians to be covered by these certificates. [112]

Insufficient knowledge of the civilian

6.123 The AFP advised that the area of prospective indemnities and getting informers to conditionally cooperate with law enforcement agencies on the basis that they will be granted an indemnity is problematic. At that early stage in the relationship between investigator and informer, there is often little known about the civilian and his or her activities. This means it is difficult to accurately assess the extent to which an indemnity would be appropriate:

Often, you do not know enough at that point in time about their complicity in not only that crime but perhaps many other crimes. Indemnities are problematic for that very reason.

… you are quite often not sure of the motivation of the informant until much later in the piece and having dealt with the informant. [113]

6.124 As an alternative, the AFP favoured an approach whereby the investigating law enforcement agency offers support at the time of sentencing, by way of a letter to the court. This would avoid the problems of blanket indemnities which is a very difficult and dangerous area for anyone to get involved in. [114]

6.125 Mr Keelty alluded to some of the problems that can arise from granting prospective indemnities to civilian/informant participants in controlled operations. He said:

The DPP, of course, is a major stakeholder in the sense that, in any decision about immunity from prosecution or involvement in a criminal enterprise, someone has to weigh up the potential value of evidence and a comparison needs to be made about those prosecuted and those not prosecuted. From experience, there are often times where you get caught out in these situations. Although it has not happened often, an example is where the person who you have given immunity to – is probably more complicit in other crimes, or more of a criminal in the community sense, than some of the people who are ultimately prosecuted and have been opportunistic or entrepreneurial about the way that they have come into their involvement with the police. [115]

Retrospective indemnity

6.126 Mr O'Gorman favoured a system of granting indemnities ex post facto to civilian participants. The advantage of that system is that it ensures greater control over the actions of the civilian. Mr O'Gorman maintained that if the civilian operative is properly controlled and oversighted and he or she stays within the parameters of the law enforcement agency's directions, then that civilian will get an indemnity after the event. [116]

6.127 Mr Bradley distinguished between retrospectively indemnifying people and retrospectively authorising illegal acts. Mr Bradley advised the Committee that he was not opposed to the retrospective indemnification of civilians because that is already done in NSW by the Attorney-General on the advice of the DPP. He did, however, advise that retrospectively authorising illegal activities is problematic because it gives a more general licence than is contemplated by the legislation. This kind of retrospectivity is an area that requires a great deal of consideration and debate, as recommended by Mr Finlay. Mr Bradley stated:

To say even to police that it is permissible to do things which are illegal, so long as you come along after the event and get a tick for it, has some problems. [117]

6.128 Mr Bradley said that one of the problems with the NSW legislation is that there is uncertainty about what does and what does not require authority. There would be greater uncertainty if there was retrospectivity. He identified that there is a need to educate police as to how the act works:

If there was a general perception that you could get approval after the event for things which were otherwise illegal, that could work some mischief in society. [118]

Support at the time of sentencing

6.129 Mr Keelty classified civilian participants into two types, criminal and non-criminal. In the AFP's view, prospective undertakings are not appropriate in the case of criminal civilian participants, because they are problematic for the reasons given at paragraphs 6.123-6.125. The better approach is to offer support at sentencing by way of letter to the court:

You say to an informer, `We, as police officers, cannot condone your criminal behaviour, nor are we authorised – nor should we be authorised – to provide you with an indemnity for your criminal behaviour. However, should you cooperate with us in bringing the principals to justice, we are prepared to recognise that by way of a letter to the court at the time of your sentencing.' [119]

A graded system of indemnities

6.130 The potential for legislating in respect of any form of civilian immunity is complicated by the different ways in which civilians become involved in controlled operations, resulting in different classes of civilians, essentially criminal and non-criminal. The AFP proposed that, from a legislative perspective, the issue of indemnities and what type of assurance might be appropriate in any given case might require some form of grading of civilian operatives.

6.131 Grading could be based on:

• the crime being investigated; and
• the nature of the role of the civilian/informant;

Depending on the categorisation/classification of the civilian, a decision would be made as to whether it was appropriate for the Commissioner or his delegate to provide appropriate sanctions for the involvement of the informant in the controlled operation or whether the matter should be determined by an external body, such as the DPP. [120]

6.132 The Committee was told that the degree of difficulty involved in assessing civilians varies from case to case. For example, the appropriate indemnity for a courier at the barrier would be relatively easy to assess. The case of civilian participants used on a long-term basis is complex and possibly requires independent consideration about how an undercover operation might be structured and what roles law enforcement participants should play. According to AFP Principal Legal Policy Adviser Mr Michael Atkins, there must come a point when the law enforcement agency must hand the operation and the decisions over to an independent agency for consideration. [121] Mr Atkins suggested that the appropriate authorising body might be an independent auditor or independent audit body or public monitor. It was his view, however, that the function should be given to a body other than the police or the DPP. [122] It was pointed out that the performance by the DPP of his responsibilities is, in fact, the Attorney-General exercising a delegated task through the Director of Public Prosecutions. It was suggested that on this analysis, it was not inconsistent with the Attorney-General's charter to have responsibility for the investigation and management of law enforcement and prosecutorial functions because, prior to the statutory provision, that was inherent. [123]

Concerns regarding immunising criminals

6.133 It is recognised that granting prospective immunity to civilians/informants is different from granting immunity to sworn members of the police force and that there are different types of informers or civilian participants in controlled operations.

6.134 Protessone Trevor Nyman, for the NSW Law Society said:

The role of informers is a longstanding role, and it is a role which has always lived in the shadows of the law. That is really where it belongs. Criminals are the last people that should be encouraged to commit crimes by the expansion of this type of legislation. To allow them to operate as criminals, with the blessing of the law, is one of the most serious examples of what the Law Society is arguing against. It is actually encouraging criminals to continue with criminal activity under the aegis and encouragement of law enforcement authorities. [124]

6.135 One of the concerns is that informants who are working on the `shady side of society … once so immunised basically can play both sides against the middle with no fear of prosecution'. [125] Mr Broome, however, responded by pointing out that informants would only be immunised for the activities covered by the certificate.

6.136 The NCA representatives confirmed that informants have used the cover of working in a controlled operation for their own gains, such as playing one organisation off against another, `doing deals with the devil'. [126] The NCA told the Committee that this situation will probably happen again and that although procedures for managing informants have been developed to the point where the risk is minimal, the risk cannot be entirely eliminated:

We would have to do everything we could to ensure that we were close enough to the informant, that we had management practices in place that reviewed his activities, his involvement. Indeed, we now have all that – that is there. Of course, you cannot be with someone 24 hours a day, listening, watching their activities; but, with all the other tools that we have and with all the other mechanisms and management processes we have today, informants are much more under the microscope than they ever were. But what you suggest, of course, can happen. [127]

6.137 Clearly, there are concerns in the community that the decision by a law enforcement agency to obtain sufficient evidence in an investigation for a person to be charged and put to trial should not involve the prosecution in `doing deals with the devil'. Further, the authority for such an arrangement is made at an early stage in the investigation and may lead an over- zealous investigator into `overreaching the existing rules'. The NCA, however, assured the Committee that there are enough checks and balances in the system that would deter the enthusiastic investigator. Mr Broome said that in the case of informants being used in controlled operations:

… if you were going to extend this immunity to informants, you would want to know a great deal about what we know about them, what we know about the circumstances of the particular operation and so on because, at the end of the day, if it goes wrong, I am going to wear it – and probably wear it very publicly.

That is a fairly significant and appropriate counterbalance to those considerations. I am not going to give somebody carte blanche in a way that could prove to be quite inappropriate, unless I am satisfied that is something I should do in all the circumstances. [128]

Conclusion

6.138 The Committee is concerned to encourage the participation of civilians in law enforcement. It is clear that without that participation, the success of agencies such as the NCA would be severely diminished. In particular, the Committee recognises that sometimes civilians are in a particular position, perhaps by reason of their profession or employment, where they are able to give special assistance to police. Where civilians agree to do so, their responsibilities and privileges should be clearly defined by the legislation.

6.139 The Committee believes that there is a clear obligation on the part of the legislature to ensure that those civilians who would otherwise not be involved in any criminality and who agree to render special assistance to police are protected from the consequences of unlawful activities committed by them at the request or direction of police during a controlled operation.

6.140 The Committee, however, is not prepared to recommend that informants and other civilians who participate in controlled operations by reason of their own criminal connections or to further their own ends in respect of their suspected or known criminality, should have the same protection. Although the Committee appreciates their significant strategic role in law enforcement, the considerations involved are beyond this inquiry. In terms of those civilians, the Committee is of the view that the status quo should prevail.

Recommendation 16: That Part 1AB of the Crimes Act 1914 be amended to include a provision to authorise the participation of civilians in controlled operations. The term `civilians' should be defined so as to exclude those persons who are police informants or who become involved in a controlled operation by reason of their having knowledge, position or influence as a consequence of their own involvement in criminal activities. The position of that class of civilians should remain subject to the current system of retrospective indemnities and assistance at the time of sentencing that operates according to the discretion of the Director of Public Prosecutions.

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Footnotes

[1] Law Enforcement (Controlled Operations) Act 1997, section 6

[2] Law Enforcement (Controlled Operations) Act 1997, sections 16 and 18

[3] Criminal Law (Undercover Operations) Act 1995, section 3

[4] Criminal Law (Undercover Operations) Act 1995, section 4

[5] Mr Keelty, AFP, Evidence, p. 155

[6] Commonwealth DPP, Submission volume, p. 83

[7] Mr Collins, PFA, Evidence, p. 45

[8] Mr Broome, NCA, Evidence, p. 14

[9] Although a charge of knowingly concerned in an importation is available in some cases under paragraph 233B(1)(d) of the Customs Act

[10] See paragraph 1.48 and the current definition of `law enforcement agency' in section 3 of the Law Enforcement (Controlled Operations) Act 1997 (NSW).

[11] National Crime Authority, Submission volume, pp. 99-100

[12] Mr Carmody, QCC, Evidence, p. 86.

[13] Mr Keelty, AFP, Evidence, p. 156

[14] Mr Butler, CJC, Evidence, p. 92.

[15] Mr Keelty, AFP, Evidence, p. 156

[16] ibid.

[17] AUSTRAC, Submission volume, p. 50

[18] ibid., pp. 50-51

[19] Ms Montano, AUSTRAC, Evidence, p. 60

[20] See the FATF recommendation at paragraph 1.15

[21] Ms Montano, AUSTRAC, Evidence, p. 56

[22] ibid., p. 58

[23] ibid., pp. 58-59

[24] Mr Pinner, AUSTRAC, Evidence, p. 59

[25] Mr Phelan, AFPA, Evidence, pp. 167-168

[26] See section 15I of Part 1AB of the Crimes Act 1914, and the definition of `narcotics goods offence' in section 3.

[27] See Law Enforcement (Controlled Operations) Act 1997, sections 16 and 6.

[28] See Criminal Law (Undercover Operations)Act 1995, sections 4 and 3.

[29] Attorney-General's Department, Submission volume, p. 121

[30] ibid.

[31] ibid.

[32] Mr Delaney, Commonwealth DPP, Evidence, pp. 174-175

[33] AFP, Evidence, p. 156

[34] Mr Bradley, NSWCC, Evidence, p.33

[35] Mr Bradley, NSWCC, Evidence, p. 34

[36] ibid.

[37] Mr Carmody, QCC, Evidence, p. 85

[38] Mr Alexander, PFA, Evidence, p. 47

[39] Mr Alexander, PFA, Evidence, p. 50

[40] Mr O'Gorman, ACCL, Evidence, p. 108

[41] Professor Nyman, NSW Law Society, Evidence, p. 67

[42] Mr Perry, PIM, Evidence, p. 129

[43] Hon Tom Barton, MLA, Minister for Police and Corrective Services (QLD), Submission volume, pp: 84-85

[44] See section 15P

[45] Section 8(1)(g)

[46] Section 11

[47] Criminal Law (Undercover Operations) Act 1995 (SA), sections 3(4)(f) and 3(5) respectively

[48] Attorney-General's Department, Submission volume, p. 122; See also the Inspector of the Police Integrity Commission, Report: Review of the Law Enforcement (Controlled Operations) Act 1997 (the Act), p. 19 where it is noted that some complex operations clearly require a longer period than three months for their effective completion.

[49] Mr Phelan, AFPA, Evidence, p. 172

[50] Mr Broome, NCA, Evidence, p. 13

[51] Mr O'Gorman, ACCL, Evidence, p. 102

[52] NSW Law Society, Submission volume, p. 139

[53] Mr Broome, NCA, Evidence, p. 12

[54] Mr Bradley, NSWCC, Evidence, p. 31

[55] Mr Broome, NCA, Evidence, p. 13

[56] Inspector of the Police Integrity Commission, Report: Review of the Law Enforcement (Controlled Operations) Act 1997 (the Act), April 1999, p. 20

[57] ibid.

[58] ibid., p. 21

[59] Mr Richard Perry, PIM, Evidence, p. 122

[60] Mr Bradley, NSWCC, Evidence, p. 31

[61] ibid.

[62] Mr Collins, PFA, Evidence, p. 47

[63] Mr Alexander, PFA, Evidence, p. 47

[64] Mr Keelty, AFP, Evidence, p. 156

[65] ibid.

[66] Mr O'Gorman, ACCL, Evidence, p. 104

[67] ibid., p. 105

[68] Mr Roche, Evidence, p. 139

[69] ibid., p. 152

[70] Mr Bronitt, Evidence, p. 152

[71] Mr Broome, NCA, Evidence, p. 198

[72] ibid.

[73] NSW Council for Civil Liberties, Submission volume, p. 150

[74] Mr Lamb, NCA, Evidence, p. 6

[75] Mr Butler, CJC, Evidence, p. 93

[76] Mr Phelan, AFPA, Evidence, p. 168

[77] Mr Butler, CJC, Evidence, p. 93

[78] Crimes Act 1914, section 3(1), see definition of “law enforcement officer”

[79] The Law Enforcement (Controlled Operations) Act 1997, sections 13 and 16

[80] The Law Enforcement (Controlled Operations) Act 1997, section 14

[81] Mr Bradley, NSWCC, Evidence, pp. 39-40

[82] Criminal Law (Undercover Operations) Act 1995, sections 2 and 4.

[83] Drugs, Poisons and Controlled Substances Act 1981 (Vic), section 51.

[84] Mr Butler, CJC, Evidence, p. 94

[85] Mr Keelty, AFP, Evidence, p. 161

[86] Criminal Justice Commission, Submission volume, p. 43

[87] Mr Keelty, AFP, Evidence, p. 161

[88] Mr Delaney, Commonwealth DPP, Evidence, p. 175 and submission volume p. 81

[89] Commonwealth DPP, Submission volume, p. 83

[90] Mr Butler, CJC, Evidence, p. 92

[91] R v D'Arrigo [1994] 1QdR 603

[92] Mr Butler, CJC, Evidence, p. 93

[93] Attorney-General's Department, Submission volume, p. 122

[94] Mr Broome, NCA, Evidence, p. 16

[95] Commonwealth DPP, Submission volume, p. 83

[96] Mr Broome, NCA, Evidence, p. 16

[97] ibid., p. 17

[98] Mr Alexander, PFA, Evidence, p. 44

[99] Mr Lamb, NCA, Evidence, pp. 6-7

[100] Mr Bradley, NSWCC, Evidence, p. 40, Law Enforcement (Controlled Operations) Act 1997, section 26

[101] Mr Bradley, NSWCC, Evidence, p. 40

[102] ibid.

[103] Attorney-General's Department, Submission volume, p. 122

[104] National Crime Authority, Submission volume, p. 91

[105] ibid., p. 102

[106] Mr Broome, NCA, Evidence, p. 6

[107] Mr Delaney, Commonwealth DPP, Evidence, p. 175 and Submission volume, p. 81

[108] Mr Delaney, Commonwealth DPP, Evidence, p. 176

[109] Mr Delaney, Commonwealth DPP, Evidence, p. 176

[110] Mr Atkins, AFP, Evidence, p. 164

[111] ibid., p. 165

[112] Mr O'Gorman, ACCL, Evidence, p. 103

[113] Mr Keelty, AFP, Evidence, p. 162

[114] ibid.

[115] ibid., p. 165

[116] Mr O'Gorman, ACCL, Evidence, p. 102

[117] Mr Bradley, NSWCC, Evidence, p. 31

[118] ibid.

[119] Mr Keelty, AFP, Evidence, p. 162

[120] Mr Keelty, AFP, Evidence, pp. 162-163

[121] Messrs. Keelty and Atkins, AFP, Evidence, pp. 163-164

[122] Mr Atkins, AFP, Evidence, p. 164

[123] Hon. Duncan Kerr MP, Evidence, p. 164

[124] Professor Nyman, Law Society of NSW, Evidence, p. 68

[125] Hon Duncan Kerr MP, Evidence, p. 16

[126] ibid., Evidence, p. 18

[127] Mr Lamb, NCA, Evidence, p. 18. Mr Lamb was responding to the Mr Kerr's proposition that informants could use their position and immunity from criminal prosecution to further their own ends.

[128] Mr Broome, NCA, Evidence, p. 18