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Supplementary Statement

Senator Stott Despoja
Deputy Leader of the Australian Democrats

Ridgeway v The Queen

The development of controlled operations legislation in the Commonwealth jurisdiction followed the case of Ridgeway v The Queen (1995) 184 CLR 19. Since the facts of that case and subsequent legal developments are frequently referred to as having somehow blocked controlled operations, it is critical that we understand the central theme of the judgement. The Ridgeway case was frequently referred to by law enforcement officers during the Committee's hearings as a turning point which impeded the further conduct of controlled operations. With respect to that evidence, this is a rather simplistic interpretation of the Ridgeway case.

Courts have always possessed, and have frequently invoked, the discretion to exclude evidence obtained through impropriety or illegality. While law enforcement agencies have claimed that the High Court “unreasonably restricted the ability of law enforcement agencies to detect and break up drug rings” [1] the application of the discretion was limited to those entrapment cases where the illegality was an integral part of the offence charged. [2]

The Ridgeway case left considerable scope for controlled operations, but law enforcement agencies were not comfortable with the level of uncertainty and immediately clamoured for a administrative regime which could authorise the conduct of controlled operations.

Legislative Response to Ridgeway

The Commonwealth legislative response to the Ridgeway Case took the form of the Crimes Amendment (Controlled Operations) Act 1996, which inserted Part 1AB in the Crimes Act 1914. The amendments introduced a legislative scheme which provides for the conduct of controlled operations.

Contrary to statements contained in the preface to the Chair's Report, the Australian Democrats are not satisfied that there was sufficient debate of the merits of controlled operations legislation at the time of the amendments. [3] There are a number of concerns which the Australian Democrats believe should be addressed prior to any further codification or expansion of executive power.

A number of these concerns are addressed in Chapter 2 of the Chair's Report. It is the view of the Australian Democrats that these concerns should be addressed prior to any further legislative action. While balance is a noble and appropriate goal, it must be understood that many concerns must be understood outside the paradigm of efficiency. Some of the concerns are not able to be quantified and simply cannot be traded against law enforcement interests.

The Australian Democrats are not satisfied by the argument advanced by Mr Carmody that:

What you have to look at is the routine case. In the end we have to work out whether this law does more social good than harm. If it does, then that answers your civil liberties complaint. [4]

While it may often be perceived that `extreme cases make bad law,' efficiency arguments do not answer civil liberties complaints.

As outlined by Dr Anderson:

It may be that there are some more arrests. As I said, I am prepared to accept that these agencies will come to the parliament and ask for more power and more resources to arrest more of the middle ranking people, and they will do it. But they will seriously corrode the rights and responsibilities of citizens in the course of extending those powers, without acknowledging that. Typically, administrators do not acknowledge that there are consequences of their own extended powers and their legitimised criminality. [5]

The possible erosion of rights is a major concern to the Australian Democrats and we believe that it should be addressed prior to any further legislative action.

External Authorisation

The Australian Democrats favour an external authorisation process due to the need for both independence and accountability.

The main argument against an external authorisation process relates to operational efficiency. [6] As mentioned above in regard to the protection of civil liberties, the Australian Democrats do not believe that rights can be traded for efficiency.

Two other arguments against external authorisation have been identified in the Chair's report. These relate to the creation of an extra layer of bureaucracy and the unique nature of controlled operations. [7] Neither of these arguments have been sufficiently examined at this stage, but as with the efficiency arguments, they cannot be equated with civil liberties concerns.

The Australian Democrats agree with the concerns expressed about the operation of judicial authorisation mechanisms. Clearly, the nature of controlled operations and the inherent licensing of illegality make judicial involvement inappropriate, if not constitutionally invalid.

Public Interest Monitor

The Australian Democrats believe that the model of the public interest monitor which has been adopted in Queensland for the issue of interception warrants should be investigated further. While the direct application of the model to the issue of authorisations for controlled operations may not be appropriate, there are many aspects of the model which should be reflected in any authorisation scheme. One of the most important of these is the ongoing educative and policy role which is undertaken by the Public Interest Monitor.

Uniformity

Given the problem of multiple overlapping jurisdictions and law enforcement agencies in Australia, uniformity must be a primary concern in the creation of any controlled operations framework. A number of witnesses referred to the jurisdictional problems involved in current operations. It would be extremely unfortunate if this inconsistency were to continue.

Accountability

The Australian Democrats support an increased role for the Parliamentary Joint Committee in the oversight of the National Crime Authority. However, as noted in the Chair's report there is clearly a need for that role to be limited by the Committee's primary task of overseeing the exercise of executive power. It would not be appropriate for the Committee to be involved in the direct oversight of controlled operations, but there is clearly a role to be played in reviewing the operation of any legislative framework.

Conclusion

The Australian Democrats support the recommendations of the Chair's report, with the significant caveat that civil liberties concerns must not be weighed against efficiency considerations.

Senator Stott Despoja
Deputy Leader of the Australian Democrats
Senator for South Australia
December 1999

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Footnotes

[1] Messrs. Bronitt and Roche, Submission volume, p137

[2] ibid., p126

[3] Chair's Report, p.xx

[4] Mr Carmody, QCC, Evidence, p81

[5] Dr Anderson, NSWCCL, Evidence, p23

[6] Chair's Report, para 4.35

[7] ibid., paras 4.43-4.46