Bills Digest 92 1995-96 Crimes Amendment (Controlled Operations) Bill 1996


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WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 28 May 1996

CONTENTS

Passage History

Date Introduced: 8 May 1996
House: Senate
Portfolio: Attorney-General
Commencement: Royal Assent

Purpose

The Bill amends the Crimes Act 1914 in relation to controlled operations involving narcotics. The Bill exempts law enforcement officials from liability for what would otherwise be criminal activity if they are involved in importing, possessing or exporting narcotics in the course of a controlled operation.

Background

In June 1995, the Labor Government introduced the Crimes Amendment (Controlled Operations) Bill 1995 into the House of Representatives. The 1995 Bill was the Labor Government's response to the decision of the High Court in Ridgeway v. The Queen.(1) Ridgeway v. The Queen involved an operation in which officers of the Australian Federal Police were involved in the importation of a traffickable quantity of heroin. In the High Court, McHugh J recited the facts of Ridgeway as follows:

[Ridgeway] was released from prison in February 1989. In September and October 1989, he travelled to Singapore under a false name and in breach of his parole conditions. In Singapore, he met Lee and solicited him to import heroin into Australia. Unbeknown to ... [Ridgeway], Lee had become an informer for the Royal Malaysian Police Force. The officer who 'ran' Lee was Thian Soo Chong, an Assistant Superintendent of Police. Lee kept Superintendent Chong informed of his dealings with ... [Ridgeway]. In turn, Superintendent Chong alerted Superintendent Butler, an Australian Federal Police Officer stationed in Kuala Lumpur, as to the plans of ... [Ridgeway]. With the knowledge, if not the encouragement of the Australian Federal Police, Superintendent Chong and Lee purchased heroin in north Malaysia for about $4000 on 18 December 1989 for the purposes of delivering it to ... [Ridgeway] in Australia.

... Arrangements were made by members of the Australian Federal Police and the Royal Malaysian Police Force for Superintendent Chong and Lee to travel to Australia carrying the heroin in a plastic bag inside a tissue box which was in a camera bag. Australian Federal Police officers took steps to ensure that Superintendent Chong - who was carrying the heroin - was not searched or detained by Australian Customs officers.(2)

Ridgeway was later arrested by the AFP after having purchased the heroin.

Australian law enforcement officers have used covert operations in the past to monitor illegal narcotics dealings, track them through the customs barrier and apprehend those involved in importation, possession and other offences. The circumstances in Ridgeway were very different from these. In Ridgeway law enforcement officers themselves were involved in importing heroin for the purposes of apprehending Ridgeway.

In its decision in Ridgeway, the High Court held 6:1 the actions of the police involved 'grave and calculated ... criminality'(3) and that the evidence against Ridgeway was so tainted because of its illegal nature that it must be excluded. The High Court quashed Ridgeway's conviction and permanently stayed the proceedings against him. Some of the judges indicated that legislation would be needed in order to permit the conduct of controlled operations.

Details of the background to the 1995 Bill and the provisions of the Bill can be found in Bills Digest No.29 of 1995-96. The Digest is also available on PDBS. Further information about the decision in Ridgeway can be obtained from the PRS Research Note No.47 entitled 'Police Entrapment - the High Court's decision in Ridgeway v. The Queen.'

The 1995 Bill passed the House of Representatives on 22 August 1995. In the Senate it was referred to the Senate Legal and Constitutional Legislation Committee. The Committee reported in September 1995. Its report acknowledged:

  • the 'insidious social evil'(4) represented by the importation of illegal drugs into Australia,
  • the fact that 'controlled operations properly employed are a well known and well used police mechanism,'(5)
    • that evidence had been presented to the Committee that the 'legislation would encourage the growth of corruption within the law enforcement agencies.'

The Committee concluded that the general thrust of the Bill was correct but recommended the addition of the following safeguards:

  • a provision clarifying that the Bill does not permit entrapment,
  • a provision 'clarifying that it [the legislation] does not in any way remove from a court its inherent and constitutional power and duty to ensure that justice is done in the conduct of the matter before it, including the power to terminate or stay proceedings'(6) ,
  • that at the end of the controlled operation a written statement must be furnished by the authorising officer stating who holds custody of the narcotic goods and whether they have been destroyed. Further, that information about the type, quantity and whereabouts of the narcotic goods should be provided by the Minister to Parliament.(7)

On 8 May 1996, the present Government introduced the Crimes (Controlled Operations) Bill 1996 into the Senate. The 1996 Bill is largely the same as the 1995 Bill. However, according to the Bill's Second Reading Speech it 'includes a number of significant improvements.'

Main Provisions

Definitions

New subsection 3(1) defines 'law enforcement officer' as a member of the Australian Federal Police, a member of a State or Territory police force, a staff member of the National Crime Authority, an Australian Customs Service officer or a member of a foreign police force or law enforcement agency.

New subsection 3(1) defines the expression 'narcotic goods offence' as certain offences under the Customs Act 1901, the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990, certain offences against State and Territory narcotics laws and 'associated offences.'(8)

New subsection 3(1) inserts a definition not contained in the 1995 Bill. This is the definition of 'person targeted.' In the context of a controlled operation the 'person targeted' is the person about whom evidence has been collected or will be collected in the course of a controlled operation.

Objects of the Bill

New section 15G recites the objects of the Bill. An addition found in new section 15G(1)(b) of the 1996 Bill is that an object of the Bill is to require the Commissioner of the Australian Federal Police and the Chairperson of the National Crime Authority to report to the Minister not only on requests to authorise controlled operations but on the action taken as a result of those authorisations.

New section 15G(2) states that, subject to new section 15W(9) , the amendments are not intended to limit the discretion of a court to exclude evidence in criminal proceedings or to stay criminal proceedings in the interests of justice. This provision had no counterpart in the 1995 Bill.

New section 15H defines a controlled operation. A controlled operation is an operation involving law enforcement officers, carried out in order to obtain evidence that may lead to the prosecution of a person for an offence against section 233B of the Customs Act 1901 or an associated offence. Such an operation may involve law enforcement officers in conduct that, if not excused by the Bill, would constitute a narcotics goods offence.

New section 15I provides that if a law enforcement officer is involved in a controlled operation and engaged in conduct that would otherwise constitute a narcotic goods offence, he or she is not liable for the offence if there is a certificate in force authorising the operation.

However, the law enforcement officer will not be given the immunity of new section 15I if:

  • the officer intentionally induces the target of the controlled operation to commit an offence against section 233B(10) of the Customs Act 1901 or an associated offence; and
    • the person would not otherwise have had the intent to commit the offence (new subsection 15I(2). New subsection 15I(2) had no counterpart in the 1995 Bill).

New subsection 15I(6) provides that goods imported into Australia as part of a controlled operation remain goods imported in contravention of the Customs Act 1901 - in other words, the goods will still be prohibited imports for the purpose of prosecuting the target of the controlled operation.

Authorising a controlled operation

New section 15J provides that a certificate authorising a controlled operation must be obtained from the Commissioner, a Deputy Commissioner or an Assistant Commissioner of the Australian Federal Police or a member of the National Crime Authority.

The form and contents of an application for a controlled operation

New section 15K provides that an application for a controlled operation must be in writing, state whether a previous application has been made for the operation and the fate of that application, and contain information required by the authorising officer.

Neither new section 15K nor new section 15M require information to be given about the persons who will be involved in the controlled operation, nor is it a requirement that the applicant provide to the authorising officer all the details available about the controlled operation.

Urgent applications

New section 15L provides for urgent applications. An urgent application may be sought if the applicant believes that the normal section 15K procedure would jeopardise the success of the controlled operation. The information to be supplied to the authorising officer is the same as that to be provided under new section 15K. However, the application need not be in writing. It can be made in person, over the telephone or by any other means of communication. The authorising officer must communicate his or her decision to the applicant as soon as possible.

If the application is granted:

  • the authorising officer must give the applicant a certificate as soon as possible;
  • the applicant must submit a written application complying with new section 15K to the authorising officer as soon as possible.

The grounds for giving a controlled operations certificate

Before granting an authorising certificate, the authorising officer must be satisfied of all of the following matters:

  • that he or she has been given any information known to the applicant about the nature and quality of the relevant narcotic goods,
  • that the target of the controlled operation would be likely to commit a relevant offence whether or not the controlled operation occurs,
  • that the controlled operation will make it easier to obtain evidence that will lead to a prosecution,
  • that any narcotic goods in Australia at the end of the controlled operation will be under the control of an Australian law enforcement officer.

What does a certificate authorising a controlled operation have to contain?

New section 15N requires an authorising certificate to be in writing and signed by the authorising officer. The certificate must also contain specified information including the name of the applicant, a description of the controlled operation and the date of the certificate's expiry. The certificate's date of expiration cannot be more than 30 days after the day on which it was given.

Importantly, failure to comply with new section 15N does not affect the validity of a certificate authorising a controlled operation (new subsection 15N(5)).

Notification of the Australian Customs Service

If an authorised controlled operation will involve goods being dealt with by the Australian Customs Service, then new section 15Q provides for the Chief Executive Officer of the Australian Customs Service to be notified.

What information must be provided to the Minister about controlled operations?

New section 15R provides that the Minister must be informed as soon as practicable that a controlled operation has been authorised and reasons for the authorisation. New subsection 15R(3) provides that the reasons must include an indication of the extent to which the authorising officer took account of the seriousness of the criminal activities of the target of the controlled operation or their associates. There was no equivalent to new subsection 15R(3) in the 1995 Bill.

New section 15S provides that a written report must be provided to the Minister about whether an authorised controlled operation was carried out, the nature and quantity of narcotic goods involved in the operation, whether the narcotic goods have been destroyed and if, not, who has possession of them. Information about the identity of a person involved in the controlled operation who had or has possession of narcotic goods which have not yet been destroyed need not be provided to the Minister if it would endanger the safety of the person or prejudice an investigation or prosecution.

There was no equivalent to new section 15S in the 1995 Bill.

Reporting to Parliament

New Section 15T provides that the Minister must make an annual report to Parliament about controlled operations. The information to be included in the report is specified in new subsection 15T(2). The information includes the date of the application for authorisation, the decision made, and the reasons for the decision. The report must also incorporate the information contained in the reports given to the Minister under new section 15S. This last requirement had no equivalent in the 1995 Bill.

There is provision in new subsection 15T(4) that if the Minister considers that information provided to him or her is likely to endanger the safety of a person or prejudice an investigation or prosecution, then the Minister must exclude that information from the report to Parliament. However, it must be provided to Parliament when the Minister considers that the information will not endanger safety or prejudice a prosecution or investigation.

What about pre-existing controlled operations? - New Division 3

New section 15V provides that if evidence has been obtained as a result of a controlled operation conducted under the 1987 Ministerial Agreement between the Minister for Industry, Technology and Commerce and the Special Minister of State, then the Minister may issue a certificate covering that operation.

New section 15W provides that evidence of the illegal importation of narcotics by law enforcement officers is not to be rejected because at the time of the importation those law enforcement officers were engaging in illegal conduct.

New Division 3 has a retrospective operation. Its purpose is to enable prosecutions involving controlled operations which were undertaken before the commencement of the Crimes Amendment (Controlled Operations) Bill 1996 to proceed. At present, these prosecutions might fail because they involved the unlawful importation of narcotics by law enforcement agents - with the result that this evidence would be likely to be excluded on the basis of Ridgeway's case.

According to the Minister's Second Reading Speech, a number of current prosecutions involving controlled operations and charges relating to the importation of cocaine and heroin will be abandoned if the Bill is not passed.

Remarks

The contents of an application for a controlled operation

The Bill does not make clear what information must be exchanged by the applicant for a controlled operations certificate and the authorising officer. The contents of an application as provided by new section 15K are minimal. New section 15M specifies what the authorising officer must be satisfied about before issuing a certificate. However, it is unclear how the authorising officer is to be satisfied about those matters. In a submission made to the Senate Legal and Constitutional Legislation Committee in 1995, the South Australian Bar Association recommended that any application for a certificate should include:

Any and all details available to that applicant concerning the nature and scope of the operation including but not limited to:

  • the nature and quantity of the narcotic goods to which the operation relates;
  • the persons who will be involved in the operation.

Importantly, all these details should appear on the fact of the certificate and must be strictly complied with. Section 15K(d) is not sufficient in that it does not require neither of [sic] the applicant, nor the authorising officer to exchange all relevant information.(11)

While the reasons to be given to the Minister in support of an authorisation mention the 'seriousness of the criminal activities' of the person targeted or their associates, the seriousness of the suspected offence is not a matter that must be stated in an application for a controlled operations certificate or as a matter that an authorising officer must be satisfied of.

Authorisation of controlled operations

Concerns were expressed in evidence before the Senate Legal and Constitutional Legislation Committee about the criteria for issuing a certificate authorising a controlled operation. Maurie Stack from the Law Society of NSW said:

The criteria for issuing any certificates should include consideration of whether alternative methods of investigation are capable of providing sufficient evidence for police to lay charges (as per the Telecommunications (Interception) Act) and should also take into account the gravity of the suspected offence.(12)

Neither the applicant for authorisation nor the authorising officer are required to be satisfied that alternative methods of proceeding are unavailable. In relation to the 1995 Bill, the Australian Law Reform Commission commented:

if law enforcement officers are so convinced as to a suspect's proclivity to engage, or actual engagement in criminal activity, why is it necessary for them to take such extreme action as is contemplated in this bill in order to apprehend the suspect. Presumably, the law enforcers' conviction as to the suspect's involvement in criminal activity is born of intense surveillance or other forms of information gathering that have resulted in the compilation of a body of evidence that points to their guilt. Where, indeed this is the case, then surely the alternative (long standing and less extreme) device of 'monitoring and responding' would be quite sufficient?(13)

Another alternative approach to police organising and participating in what would otherwise be criminal activity would be to pursue other charges against suspects which may result in substantial penalties such as conspiracy or attempt.

During the debates about the Crimes Amendment (Controlled Operations) Bill 1995, one of the issues raised was the authorisation of controlled operations by law enforcement officials. Some argued that an independent judicial officer, rather than a law enforcement officer, should authorise or reject an application for a controlled operation.

Among those presenting this argument for consideration was the present Attorney-General who said:

It is of concern to me that the bill, in substance, seems to authorise police to authorise other police to conduct illegal operations in conjunction with persons who are believed to be criminals.

The telecommunications interception laws(14) are, in some ways, similar to the proposed controlled operations provisions of this bill. They involve the balancing of important competing interests. In the case of the telecommunications interception laws, these are the interests of the investigation, apprehension, prosecution and conviction of people engaged in serious major organised crime on the one hand and the priceless rights of privacy and freedom of speech on the other.

I urge the minister to consider amending the bill so that an application for a certificate to conduct a controlled operation is made to a senior judicial officer.(15)

A number of reasons can advanced in support of the view that an independent judicial officer rather than a senior law enforcement officer should consider an application for authorisation of a controlled operation. Among them are:

  • the need for an independent assessment of an application, especially in view of the potential for police corruption and that fact that a controlled operation involves the police in what would otherwise be illegal conduct of a serious nature,
  • the need for a careful balancing of the rights of citizens as against the needs of law enforcement agencies,
  • the cautionary words of Brennan J (as he then was) in the High Court in Ridgeway who referred to the possibility in any legislative scheme of 'anomalies, if not corruption, in the absence of adequate supervision',
  • the need to maintain public confidence in the integrity of law enforcement services.

The Crimes Amendment (Controlled Operations) Bill 1996 does not contain provision for the use of independent judicial officers to consider applications for controlled operations certificates. It is not entirely clear why this is so. If, despite the High Court's decision in Grollo v. Commissioner of Australian Federal Police,(16) there remain real concerns about separation of power issues, then another approach might be to use retired judges as persons to whom an application for a certificate is made.

Reporting on controlled operations

Under new section 15S, the identity of certain persons involved in controlled operations can be withheld from the Minister by the authorising officer if that officer believes that disclosure would endanger the safety of the person or prejudice an investigation or prosecution. However, there is no requirement that this information is to be provided to the Minister when the authorising officer considers that the likelihood of danger or prejudice has passed. This can be contrasted with new section 15T which provides that if the Minister excludes certain information from his or her report to Parliament, then it must be provided when the Minister considers that the danger or prejudice has passed.

There is no requirement in either the reporting regime to the Minister or the reporting regime to Parliament that the legal outcomes of controlled operations must be provided. Legal outcomes might include the laying of charges, the nature of charges laid, and the results of prosecutions instituted as a result of controlled operations. Without such information, it will be difficult to assess the efficacy of the controlled operations regime.

Endnotes

(1) Ridgeway v. The Queen concerned a controlled operation involving heroin importation conducted by the Australian Federal Police in association with the Royal Malaysian Police Force.

As a result of the controlled operation, Ridgeway was convicted in the District Court of South Australia of having a prohibited import in his possession without reasonable excuse. The prohibited import in question was a traffickable quantity of heroin.

The background to the case was as follows. Ridgeway had contacted a Malaysian man named Lee to discuss the purchase of heroin in Malaysia. Unknown to Ridgeway, Lee was a police informer. Lee passed on the information and the AFP and the Royal Malaysian Police Force arranged for the heroin to be purchased and brought into Australia, to clear Customs and then be passed to Ridgeway who was arrested.

Ridgeway appealed against his conviction to the High Court of Australia. By a majority, the High Court found that the evidence of Ridgeway's offence was so tainted by the illegal police operation, that it should be excluded. The High Court quashed the conviction and ordered a permanent stay of the proceedings against him.

The High Court found that the Customs Act 1901 provided no exemption for the conduct engaged in by the police and stated that exemptions for controlled operations were a matter for Parliament.

The Labor Government announced that it would introduce legislation to enable controlled operations to occur. The Government's Justice Statement of May 1995 stated:

The police sometimes need to engage in import or export of drugs in order to identify and prosecute trafficking ringleaders, who often conceal their identities and location by using a chain of couriers and intermediaries to carry the goods. By facilitating, or when necessary by carrying out the transport of drugs, police can often identify the ringleaders ... The Government has a responsibility to Australians to ensure that the police have the tools to properly tackle crime.

(2) Ridgeway v. R (1995) 129 ALR 41 at 86-7.

(3) Ibid at 57.

(4) Senate Legal and Constitutional Legislation Committee, Report. Crimes (Controlled Operations) Bill 1995, September 1995, p.28.

(5) Ibid.

(6) Ibid.

(7) Ibid, pp.28-29.

(8) 'Associated offences' are also defined in new subsection 3(1). They include certain offences under the Customs Act 1901, certain ancillary offences.

(9) New section 15W provides that in relation to controlled operations authorised under the 1987 Ministerial Agreement, the court does not have a discretion to exclude evidence solely on the basis that it was illegally obtained.

(10) Section 233B of the Customs Act 1901 provides for the following offences: importing or attempting to import narcotic goods; possessing or attempting to possess imported narcotic goods; conspiring to import narcotic goods; aiding, abetting, counselling or procuring the importation of narcotic goods.

(11) Submissions to the Senate Legal and Constitutional Legislation Committee, Crimes Amendment (Controlled Operations) Bill 1995, Submissions on behalf of the South Australian Bar Association, p.29.

(12) Senate Legal and Constitutional Committee, Report, op.cit, p.22.

(13) Senate Legal and Constitutional Legislation Committee, Crimes Amendment (Controlled Operations) Bill 1995. Submissions, Australian Law Reform Commission Submission, p.54.

(14) The legislative scheme contained in the Telecommunications (Interception) Act 1979 provides that a judicial officer appointed persona designata is the person responsible for authorising telephone intercept warrants.

(15) Mr D Williams QC, MP, Parliamentary Debates. House of Representatives, 22 August 1995.

(16) (1995) 131 ALR 225.

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Jennifer Norberry Ph. 06 277 2476
27 May 1996
Bills Digest Service
Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

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ISSN 1323-9032
© Commonwealth of Australia 1996

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Published by the Department of the Parliamentary Library, 1996.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 27 May 1996

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