Chapter 3
Investigative powers and witness protection
Background
3.1
Schedule 3 of the Bill proposes to replace the existing provisions in
the Crimes Act 1914 (the Crimes Act) providing for controlled
operations, assumed identities and witness identity protection with model laws.
These model provisions were developed by the Joint Working Group of SCAG and
the then Australasian Police Ministers Council and endorsed by SCAG in 2004.[1]
The Explanatory Memorandum explains that:
The model laws are intended to enhance the ability of law
enforcement agencies to investigate and prosecute multi-jurisdictional criminal
activity. This type of crime is becoming increasingly common due to advances in
information and communication technology, and the increasing sophistication of
organised criminal groups, particularly those involved in terrorism or
transnational crime, including drug trafficking. Implementation of the model
laws will enable authorisations issued under a regime in one jurisdiction to be
recognised in other jurisdictions.[2]
3.2
The Senate Legal and Constitutional Affairs Committee reported on a bill
to implement the model laws in February 2007: the Crimes Legislation Amendment
(National Investigative Powers and Witness Protection) Bill 2006.[3]
However, that bill lapsed when Parliament was prorogued in October 2007.
Provisions in the Bill
Controlled operations
3.3
A controlled operation is a law enforcement operation in which a person
is authorised to engage in unlawful conduct in order to obtain evidence of a
serious criminal offence.[4]
The current provisions regulating controlled operations are set out in Part 1AB
of the Crimes Act. Controlled operations may only be authorised by senior
members of the AFP, ACC and ACLEI.[5]
Generally applications for, and authorisations of, controlled operations must
be in writing but both the existing provisions and the Bill provide for
applications and authorisations to occur orally in person, or by telephone, in
urgent cases.[6]
3.4
The main differences between the existing provisions relating to
controlled operations and the provisions set out in the Bill relate to:
-
providing protection from criminal and civil liability to
informants who participate in a controlled operation;
-
providing for recognition of state and territory controlled
operation laws;
-
providing for urgent variations to controlled operation
authorities;
-
extending the timeframes for controlled operations;
-
altering the reporting and recordkeeping obligations of authorising
agencies; and
-
increasing the Ombudsman’s inspection powers.[7]
Protection for informants
3.5
At present, informants who participate in controlled operations are not
protected from civil or criminal liability for any conduct they engage in as
part of the controlled operation.[8]
The Explanatory Memorandum states that:
This has hampered the ability of law enforcement agencies to
use informants to perform controlled conduct, which has presented a significant
obstacle to law enforcement agencies in successfully conducting controlled
operations. ...As organised criminal groups may only trust established members
of their group, infiltration by undercover officers may only be possible with
the ongoing assistance of an informant. ...It is also often necessary for
informers to participate in criminal conduct in order to maintain the trust of,
and their position in, the criminal group. These acts could be as simple as
moving a suitcase containing drugs from the boot of a car to a premises. Informants
who might be willing to assist law enforcement agencies if they were protected
from liability for certain approved conduct are unlikely to provide that
assistance if they cannot receive any protection from criminal liability.[9]
3.6
Proposed sections 15HA and 15HB[10]
of the Crimes Act would protect civilian participants, including informants,
from criminal and civil liability for conduct in accordance with a controlled
operation authorisation.[11]
The protection under proposed sections 15HA and 15HB would only apply where:
-
the conduct is in the course of, and for the purposes of, the
controlled operation and in accordance with the authority to conduct the
operation;
-
the participant is authorised to engage in the conduct;
-
the conduct does not involve entrapment;
-
the conduct is not likely to cause the death of, or serious
injury to, any person, or involve the commission of a sexual offence; and
-
in the case of a civilian participant, he or she acts in
accordance with the instructions of a law enforcement officer.[12]
3.7
Civilians will only be authorised to participate in a controlled
operation where the authorising officer is satisfied on reasonable grounds that
a law enforcement officer could not adequately perform the role that the
civilian will perform.[13]
Further, under the proposed amendments an authority to conduct a controlled
operation must detail the ‘particular controlled conduct’ that a civilian may
undertake, while in relation to law enforcement officers only the ‘nature of
the controlled conduct’ must be specified.[14]
The Explanatory Memorandum argues that this will ensure that the behaviour of
civilian participants is tightly controlled.[15]
Recognition of state and territory
controlled operations laws
3.8
The Explanatory Memorandum states that the proposed amendments would:
...recognise corresponding State and Territory controlled
operation laws and provide protection against liability for Commonwealth
offences for participants in operations that have been validly authorised under
those laws, without requiring a separate Commonwealth authority to be sought for
the controlled operation.[16]
3.9
The Explanatory Memorandum notes that, as a result of the decision in Gedeon
v Commissioner of the New South Wales Crime Commission, there is a risk
that there is insufficient protection for evidence obtained from, and
participants in, controlled operations authorised under a state or territory
law where the operation may involve the commission of a Commonwealth offence.[17]
3.10
In that case, the High Court noted that an authority for a controlled
operation issued under New South Wales legislation would only protect the
participants in the operation in relation to activities which would otherwise
be unlawful under New South Wales law. If the proposed controlled activity was
also unlawful under federal criminal law then full protection for those
involved could only be obtained by obtaining an authorisation for the
controlled operation under the federal Crimes Act as well as the New South
Wales legislation.[18]
3.11
Proposed section 15HH would provide equivalent protection from criminal
liability for participants in controlled operations authorised under state or
territory controlled operations laws, as would be provided to participants in a
Commonwealth controlled operation.[19]
This would mean that state and territory agencies would not have to seek
simultaneous authorisation under Commonwealth law for a controlled operation
where a Commonwealth offence may be committed in the course of the operation.[20]
Urgent variations to controlled
operations authorities
3.12
The current regime for controlled operations provides for variations to
the original authority for the controlled operation but these variations must
be applied for and granted in writing.[21]
The proposed amendments allow for urgent variation applications to be made
orally in person, by telephone or by any other means of communication.[22]
The amendments would also allow for the granting of urgent variations by these
means.[23]
The grounds for making an urgent application or variation is that the delay
caused by requiring a written application or variation may affect the success
of the controlled operation. In all cases, there would be a requirement to
document the urgent application or variation as soon as practicable.[24]
Duration of operations
3.13
At present, authorisation for a controlled operation can only be given
for a maximum of six months from the date an application was approved.
Furthermore, authorisations which have been in place for three months must be
reviewed by a nominated member of the Administrative Appeals Tribunal (AAT) who
determines whether the authorisation should remain in force for six months.[25]
3.14
Under the proposed amendments, the maximum duration of a formal
authority[26]
for a controlled operation will be three months.[27]
However, the duration of a controlled operation will be able to be extended by
a nominated member of the AAT for three month periods, provided the total
length of the operation does not exceed 24 months.[28]
3.15
The Explanatory Memorandum notes that extending the maximum duration of
controlled operations to 24 months:
...recognises that some controlled operations, particularly
those investigating organised crime, may extend for a long period of time and
it would cause significant disruption to the investigation, and possible risk
to participants, if the operation was interrupted at a sensitive state.[29]
3.16
Under proposed subsection 15GT(4), a nominated AAT member may only grant
an extension of a controlled operation authority in the two weeks prior to the
end of the period of effect of the authority. The Explanatory Memorandum states
that the rationale behind this limitation is to ensure that the AAT member is
considering the most recent events in the controlled operation before making
the decision to extend the operation.[30]
3.17
The maximum duration of an urgent authority[31]
will be seven days. This period cannot be extended.[32]
However, the controlled operation authorised by an urgent authority will be
able to continue beyond seven days if a formal application is subsequently made
and a formal authority is granted.[33]
Record keeping and reporting by
authorising agencies
3.18
At present, section 15R of the Crimes Act requires the chief officers of
the AFP, ACC and ACLEI to report to the Attorney-General quarterly on
controlled operations. In addition, the Attorney-General is required by section
15T to provide an annual report to Parliament on controlled operations.
3.19
Proposed section 15HM will provide that the chief officers of the AFP,
ACC and ACLEI must report, every six months, to the Commonwealth Ombudsman and
the Attorney-General on controlled operations and sets out the information
which must be included in these reports.[34]
The Ombudsman would be empowered to require the chief officer of an authorising
agency to furnish additional information on any authorised operation contained
in the report.[35]
3.20
In addition, proposed section 15HN will require the chief officers of
the AFP, ACC and ACLEI to provide an annual report to the Commonwealth
Ombudsman and the Attorney-General on controlled operations. Proposed
subsection 15HN(3) will require the Attorney-General to table each report in
Parliament within 15 sitting days of receiving the report.[36]
3.21
Proposed section 15HP would impose recording keeping obligations on
authorising agencies with respect to controlled operations.[37]
Authorising agencies would also be required to maintain a general register of
controlled operation applications and authorities under proposed section 15HQ.[38]
The Explanatory Memorandum notes that these new obligations will facilitate
proper accountability and oversight of controlled operations and, in
particular, will assist the Ombudsman in his oversight role.[39]
Ombudsman’s inspection powers and
reporting
3.22
Proposed sections 15HR to 15HY set out the powers of the Ombudsman in relation
to his oversight of controlled operations in much greater detail than the
existing provisions in the Crimes Act.[40]
In particular, the Bill would provide the Ombudsman with explicit powers to:
-
enter the premises of authorising agencies, have full and free
access to relevant records of the agencies and make copies of those records;
and
-
require law enforcement officers to provide information or answer
questions relevant to the Ombudsman’s inspections.[41]
3.23
Proposed section 15HO would require the Ombudsman to prepare an annual report
regarding the monitoring of controlled operations and provide that report to
the Attorney-General and the chief officer of the law enforcement agency to
which the report relates.[42]
The Attorney-General would be required to table this report in Parliament
within 15 sitting days.[43]
Under existing section 15UC of the Crimes Act, the Ombudsman reports directly
to Parliament on his monitoring of controlled operations rather than providing
the Attorney-General with a report which must then be tabled.[44]
Assumed identities
3.24
An assumed identity is a false identity that is used for the purpose of
investigating criminal activity, or conducting intelligence or security
activities.[45]
The current provisions relating to the use of assumed identities are set out in
Part 1AC of the Crimes Act. Under both the existing Crimes Act provisions and
the provisions in the Bill, the use of assumed identities may be authorised by
the head of the ACC, ACLEI, AFP, the Australian Security Intelligence
Organisation (ASIO), the Australian Secret Intelligence Service (ASIS), ATO or
Customs, or their delegates.[46]
3.25
Generally, assumed identities are used by law enforcement officers and
intelligence officers but civilians, may be authorised to use an assumed
identity under the supervision of a law enforcement officer or an intelligence
officer.[47]
There is also provision for foreign law enforcement, intelligence or security
agents be authorised to obtain and use assumed identities.[48]
Strengthening of assumed identities
provisions
3.26
The Bill would alter the regime regulating the use of assumed identities
by introducing more rigorous requirements in relation to the granting, review
and cessation of assumed identities. In particular, proposed section 15KA would
establish a formal application process for acquiring or using an assumed
identity including setting out the information which must be included in an
application.[49]
Proposed section 15KB would permit the chief officer to whom an application is
made (or his or her delegate) to grant an authority to acquire or use an
assumed identity. This provision would set out, in greater detail than the
existing Crimes Act provisions, the factors a chief officer must be satisfied
of prior to granting such an authority.[50]
3.27
The Bill would introduce a time limit of three months on authorities for
civilians supervised by law enforcement officers.[51]
However, this time limit will not apply to civilians supervised by intelligence
officers. The Explanatory Memorandum notes that:
This difference reflects the different operational contexts
for civilians involved in law enforcement and intelligence operations. Law
enforcement agencies are likely to require the assistance of a civilian in the
context of a specific investigation of more defined duration, while
intelligence agencies may require the assistance of a civilian in intelligence
activities occurring over many years.[52]
3.28
Proposed section 15KF would introduce a requirement for:
-
the chief officers of law enforcement agencies to review assumed
identity authorities every 12 months; and
-
the chief officers of intelligence agencies to review authorities
granted to foreign officers and civilians every 12 months, and authorities
granted to Australian officers every three years.[53]
3.29
If, after reviewing an authority, the chief officer is satisfied that an
assumed identity is no longer needed, he or she will be required to cancel the
authority. If the chief officer is satisfied that the assumed identity is still
necessary, he or she will have to record the reasons for that opinion in
writing.[54]
3.30
Furthermore, the Bill would give the chief officers of law enforcement
and intelligence agencies an explicit power to request the return of evidence
of an assumed identity, from the person who was authorised to use the identity,
once an authority ceases.[55]
Mutual recognition of assumed
identities laws
3.31
Under the existing Crimes Act provisions, state and territory law
enforcement and anti-corruption agencies may authorise a person to acquire
evidence of an assumed identity from a Commonwealth agency and use that
identity.[56]
The Bill would instead provide for mutual recognition of corresponding state
and territory assumed identities laws. In particular, the Bill would:
-
enable an assumed identity authority that was granted under a
corresponding state or territory law to be recognised as if the authority had
been granted under the Crimes Act;[57]
-
ensure that officers who are authorised under a state or
territory law to use an assumed identity are protected from criminal liability
under Commonwealth law when using that identity;[58] and
-
enable a person authorised to use an assumed identity in one
jurisdiction to lawfully acquire evidence of that assumed identity from issuing
agencies in another jurisdiction.[59]
Witness identity protection
3.32
Section 15XT of the Crimes Act currently gives courts and tribunals a
broad discretion to protect the real identity of a witness who is or was using
an assumed identity.[60]
The Bill would insert a new Part IACA into the Crimes Act setting out much more
comprehensive provisions in relation to the protection of the identity of
witnesses who are law enforcement or intelligence operatives.
3.33
One of the differences between the old and new regimes is that the
protections will extend to operatives who are participants in a controlled
operation even where the operative has not used an assumed identity.[61]
More fundamentally, the new regime would provide for the chief officer of an
intelligence or law enforcement agency (or his or her delegate) to issue a ‘witness
identity protection certificate’ rather than a court or tribunal determining
whether it is necessary to protect an operative’s identity.[62]
The Explanatory Memorandum argues that:
The chief officer of a law enforcement agency or intelligence
agency is well placed to make an informed decision about the need to protect an
operative’s identity to ensure his or her safety or avoid prejudicing
operations. In most cases, the information about [an] undercover operative is
highly sensitive and disclosing or filing this information could increase the
risk to personnel and compromise operations. ...Further, allowing a chief
officer to make the decision to protect identity in the first instance is
appropriate given that the court retains the discretion to reveal the
operative’s true identity...[63]
3.34
In general terms, the new regime for witness identity protection would:
-
govern the procedures and requirements for giving a witness
identification protection certificate;[64]
-
establish requirements for notifying the court and the parties to
the proceedings of a certificate;[65]
-
set out the effect of a certificate;[66]
-
allow the court to make orders protecting the witness’ identity
and for the disclosure of the witness’ true identity;[67]
-
introduce offences for unauthorised disclosures of the witness’
identity;[68]
-
provide that agencies which give certificates must meet certain
annual reporting requirements;[69]
and
-
facilitate the mutual recognition of certificates given under
corresponding state and territory laws.[70]
Granting of witness identity
protection certificates
3.35
The witness identity protection provisions would extend to law
enforcement and intelligence officers and other authorised people (such as
foreign law enforcement officers and civilians) who have been granted an
assumed identity or have been authorised to participate in a controlled
operation.[71]
3.36
Proposed section 15MD would provide that the witness identity protection
provisions will apply to a proceeding in which an operative is, or may be,
required to give evidence obtained as an operative.[72]
3.37
Proposed section 15ME will set out the circumstances in which the
certificate can be given.[73]
The chief officer of the ACC, ACLEI, AFP, ASIO, ASIS, ATO, Customs or any other
Commonwealth agency specified by regulation will be able to give a certificate
if he or she is satisfied on reasonable grounds that disclosure of the
operative’s identity or address is likely to:
3.38
Under proposed section 15MX, a chief officer would be able to delegate
this power to senior officers.[75]
3.39
Before a witness identity protection certificate is given, the operative
will be required to make a statutory declaration, under proposed section 15MF,
setting out matters that go to his or her credibility such as:
-
details of any offence the operative has been convicted of;
-
details of any charges against the operative which are pending;
and
-
any adverse comments made by a court about the operative’s
credibility.[76]
3.40
Details relating to the operative’s credibility must be included in the
witness identity protection certificate.[77]
Filing of certificates and
notification of parties
3.41
The witness identity protection certificate must be filed in court and a
copy provided to each party to the proceedings at least 14 days prior to the
operative giving evidence.[78]
The Explanatory Memorandum states that:
This will enable the operative’s credibility to be challenged
in the proceeding without disclosing his or her true identity. This will be an
important safeguard to ensure the fairness of proceedings when a witness’
identity is protected under this Part.[79]
3.42
However, proposed section 15MI would allow a court to waive the
requirements for a witness identity protection certificate to be filed with the
court and provided to the parties at least 14 days prior to the operative
giving evidence.
Effect of a certificate
3.43
The effect of a certificate will be that the operative is permitted to
give evidence under a pseudonym.[80]
In addition, the certificate will prevent:
-
a witness from being asked a question, or being required to
answer a question, that may disclose or lead to the operative’s true identity
or address, being revealed; and
-
a person involved in the proceeding from making a statement that
discloses, or may reveal, the operative’s true identity or address.[81]
Court’s discretion to override a
certificate
3.44
Proposed subsection 15ME(4) would provide that a decision to give a
certificate is final and cannot be challenged or reviewed in any court. The
Explanatory Memorandum argues that it would defeat the purpose of the witness
identity protection regime if a certificate could be challenged or reviewed
because this would require sensitive operational information to be disclosed,
which may risk the safety of an operative or the integrity of an operation.[82]
3.45
However, a party to a proceeding would be able to apply to the court to
override a certificate to allow questions or statements which may lead to the
disclosure of the operative’s real identity or address.[83]
The court would not be permitted to allow such evidence or statements unless
the court is satisfied that:
-
there is evidence that, if accepted, would substantially call
into question the operative’s credibility;
-
it would be impractical to test properly the credibility of the
operative without allowing the risk of disclosure of the operative’s true
identity or address; and
-
it is in the interests of justice for the operative’s credibility
to be able to be tested.[84]
Reporting requirements
3.46
Proposed section 15MU will require the chief officer of a law
enforcement agency to submit an annual report to the Attorney-General about the
certificates given by the chief officer and require the Attorney-General to
table that report in Parliament within 15 sitting days.[85]
3.47
Similarly, the chief officer of an intelligence agency will be required
to provide an annual report to the Inspector-General of Intelligence and
Security about the certificates given by the chief officer. However, this
report will not be tabled in Parliament.[86]
Mutual recognition of witness
identity protection laws
3.48
The proposed amendments would recognise corresponding state and
territory witness identity protection laws and provide that certificates issued
under those laws would be treated as if they had been issued under the Crimes
Act.[87]
The Explanatory Memorandum explains that these mutual recognition provisions
will:
[E]nable undercover operatives – who often have to work
across jurisdictions – to be protected by a certificate issued by their home
agency that is recognised in proceedings which may be held in another
jurisdiction.[88]
Key issues
3.49
No significant issues were raised in the evidence to the committee regarding
the provisions to implement the model laws in relation to assumed identities.[89]
However, some issues were raised regarding the provisions dealing with controlled
operations and witness identity protection.
Controlled Operations
3.50
There was some support for the proposed changes to the regime governing
controlled operations.[90]
Furthermore, even witnesses who had reservations about these provisions, acknowledged
that the Bill addresses a number of the concerns that were raised when similar
reforms to the controlled operations regime were proposed by the Crimes
Legislation Amendment (National Investigative Powers and Witness Protection)
Bill 2006.[91]
The key remaining concerns related to:
-
the proposal to extend the maximum length of controlled
operations to 24 months;
-
the provisions which would extend civil and criminal immunity to
informants participating in controlled operations; and
-
reporting requirements in relation to controlled operations.
Duration of operations
3.51
When the Senate Legal and Constitutional Affairs Committee considered
the controlled operations provisions in the Crimes Legislation Amendment
(National Investigative Powers and Witness Protection) Bill 2006, the
provisions set no limit on the number of three month extensions of an operation
which could be granted. That committee recommended that an absolute limit of 12
months should be placed on each authorised controlled operation.[92]
Under the existing provisions in the Crimes Act, the maximum duration of a
controlled operation is six months.
3.52
Mr Phillip Boulten of the Law Council acknowledged that the provisions
in the Bill include a time limit on controlled operations but argued that no
adequate justification has been provided for extending the maximum duration of
a controlled operation from the existing limit of six months to 24 months:
...a two-year cap is just far too long. There is no need for
a controlled operation to last for two years. The most extraordinary undercover
drug or even terrorist operation is over and done with in a year. We would have
thought that a 12-month cap would be more than adequate.[93]
Protection for informants
3.53
The Law Council expressed concern about the proposal to extend criminal
and civil immunity to informants participating in controlled operations,
particularly in the absence of an external authorisation process for controlled
operations. The Law Council cited the view of the Criminal Bar Association of
Victoria that:
...proposals to allow police to authorise criminals to
continue or undertake criminal activity is a recipe for disaster. It will
inevitably lead to police favouring one criminal or group of criminals whom
they prefer not to prosecute against another group of criminal[s] or suspected
criminals who are the focus of a current investigation. The processes will always
be subject to manipulation by criminal elements and will facilitate corruption.[94]
3.54
The Ombudsman’s submission also noted that the use of informants can add
complexity and risk to a controlled operation, and suggested that law
enforcement agencies would need to place a greater emphasis on the use of
appropriate conditions and controls, particularly where informants’ activities
involve dealing with illicit goods.[95]
Reporting requirements
3.55
The Commonwealth Ombudsman was generally supportive of the changes to the
reporting and inspection regime in relation to controlled operations noting
that:
The proposed amendments will enhance this office’s oversight
function by providing stronger legislative powers for the Ombudsman in relation
to inspections, and greater clarity with respect to the recordkeeping and
reporting obligations of law enforcement agencies.[96]
3.56
However, the Ombudsman raised two specific issues. Firstly, he
recommended that the principal law enforcement officer with respect to a
controlled operation should be required to make a report to the chief officer
of the law enforcement agency within two months after the completion of the
operation and the report should include, amongst other things:
-
the nature of the controlled conduct engaged in;
-
details of the outcome of the operation; and
-
if the operation involved illicit goods, the nature and quantity
of any illicit goods and the route through which the illicit goods passed
during the operation.[97]
3.57
The Ombudsman noted that there is a requirement for such a report under
the legislation regulating controlled operations in New South Wales,
Queensland, Victoria, and the Australian Capital Territory.[98]
He submitted that:
Such reports would seem to provide an important tool for law
enforcement agencies to assess their own performance in terms of the outcome of
a controlled operation, and would provide information necessary for this office
to ensure that agencies are compliant with annual reporting and other
requirements.[99]
3.58
Secondly, the Ombudsman noted that under existing provisions in the
Crimes Act there is a requirement for agencies to include in quarterly reports
information regarding the handling of narcotic goods and the people (other than
law enforcement officers) who had possession of those goods.[100]
The Ombudsman expressed concern that there is no provision in the Bill that
requires this information to be recorded and stated that:
In my view, it is an important control and safeguard on the
handling of narcotic goods that everybody who is not a law enforcement officer
who has handled those goods should be recorded in the official record that can
then be audited later on—for the obvious reason, as human experience teaches,
that there are allegations from time to time that narcotics goods go missing
during the course of policing and allegations that the quantity that is
officially destroyed at the end of an operation is less than the quantity that
commenced the operation.[101]
3.59
The Ombudsman suggested that the Bill should make provision for
information relating to the handling of narcotic goods, and people who had
possession of narcotic goods, to be recorded in the general register that
authorising agencies will be required to maintain under proposed section 15HQ.[102]
Other concerns
3.60
The Law Council expressed two further concerns regarding the controlled
operations provisions. Firstly, the Law Council suggested that an external
approval process for controlled operations should be established under which an
independent authority, such as a retired judge, would authorise controlled
operations rather than operations being authorised by a senior law enforcement
officer.[103]
3.61
Secondly, the Law Council suggested that, in providing for mutual
recognition of state and territory controlled operations regimes, the proposed
amendments do not guarantee that those regimes will incorporate equivalent
safeguards to those required under the Commonwealth regime either now or in the
future.[104]
Mr Boulton of the Law Council argued that this has the potential to dilute the
safeguards incorporated in the federal regime:
If a state or territory regime has more liberal or lax
provisions that allow their officials to do more than what the Commonwealth
laws would require, the proposed amendments will then effectively dispense with
the requirement for controlled operations to comply with the Commonwealth laws.
That will mean that Federal Police might choose deliberately not to get a
controlled operation certificate under these provisions and to allow their
state or territory counterparts to get the controlled operation under their
provisions if it is thought that it is more efficacious to get the controlled
operation under a more lax regime. For this reason at the very least, this law
should require the Commonwealth to recognise only those state or territory
regimes which are at least equal in force to the Commonwealth regimes.[105]
3.62
Finally, the New South Wales police portfolio recommended that the
controlled operations provisions should allow for retrospective authorisation
of unlawful conduct by a participant in a controlled operation within 24 hours
of the conduct.
[C]ontrolled operations can place police officers in
dangerous situations where, despite good planning, circumstances can change
rapidly. Allowing police to adapt controlled operations within defined limits
(for example, purchasing a different type of illicit drug when the one
originally discussed is no longer offered) allows police to operate
effectively, efficiently and with a greater degree of safety in potentially
dangerous situations.[106]
Government response
3.63
In evidence to the committee, an officer of the AFP submitted that the
arrangements for approval and oversight of controlled operations in the Bill were
appropriate.[107]
Similarly, the Attorney-General’s Department argued that the Law Council’s
concern regarding the lack of an external approval process for controlled
operations was not justified:
...the AAT have external oversight for any extensions, from
three months onwards, and the Ombudsman has very detailed oversight of all
reports and monitoring of the conduct of controlled operations. ...In addition,
I would also point out that the Commonwealth already has controlled operations
provisions that are reasonably similar. They have been in operation since 2001
without, as far as I am aware, any issues ever having arisen about
inappropriate behaviour when using those provisions.[108]
3.64
The Ombudsman supported the view that his oversight role in relation to
controlled operations has helped to ensure that these powers are exercised
properly:
My view is that... the compliance auditing inspection regime
that is a part of this act and of other legislation that enables exercise of
coercive, intrusive powers by law enforcement agencies is an appropriate
regime. In my experience, this detailed inspection and regular reporting regime
has focused the attention of law enforcement agencies quite closely on the need
to be rigorous in complying with the detailed legislative requirements, and so
it provides that reassurance of the propriety and integrity that is required.[109]
Witness identity protection
3.65
The Law Council opposed the witness identity protection amendments
arguing that the amendments prioritise law enforcement agencies’ internal,
un-scrutinised assessments of their operational and security needs above all
other concerns, including a defendant’s right to a fair trial.[110]
The Law Council submitted that:
[T]he proposed amendments remove the court’s existing role
under section 15XT of the Crimes Act and replace this process with one that
invests considerable authority in the hands of government agencies to protect a
covert operative, without including appropriate safeguards to protect the fair
trial rights of the accused.[111]
3.66
While proposed section 15MM would allow the court to grant leave for
questions and statements which may reveal an operative’s true identity, the Law
Council submitted that:
[T]his provision offers only limited practical protection for
accused persons. This is because in the absence of information about the
operative‘s true identity, defence counsel is unlikely to be able to adduce
evidence that if accepted would substantially call into question the
operative’s credibility.[112]
3.67
The Senate Legal and Constitutional Affairs Committee considered very
similar provisions in its report on the Crimes Legislation Amendment (National
Investigative Powers and Witness Protection) Bill 2006. The committee expressed
significant reservations about the provisions and stated that:
The committee can see no justification for the court to be
denied the opportunity to consider the matter of witness identity on its
merits, and in conjunction with other relevant considerations. ...[A]ny
provision which limits the right of the defendant to question the credibility
of his or her accuser, as this one does, deserves careful implementation by a
court. The committee considers that this is best achieved through leaving
intact the court’s discretion to balance the various interests at stake in
individual cases.[113]
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