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
Date Introduced: 8 May 1996
House: Senate
Portfolio: Attorney-General
Commencement: Royal Assent
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.
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.'
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.
(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.
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.
PRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
the public.
ISSN 1323-9032
© Commonwealth of Australia 1996
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Last updated: 27 May 1996
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