Bills Digest No. 19 2001-02
Measures to Combat Serious and Organised Crime Bill 2001
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Measures to Combat Serious and
Organised Crime Bill 2001
Date Introduced: 4 April 2001
Portfolio: Justice and Customs
Commencement: Amendments relating to controlled
operations and assumed identities (Schedules 1 and 2) commence on
proclamation or 6 months after Royal Assent (whichever is earlier).
Item 10 of Schedule 4 commences on proclamation.(1) The
remainder of the Act's substantive provisions commence on the
28th day after Royal Assent.
The Bill's major purposes include:
- expanding the
offences in respect of which a Commonwealth controlled operation
can be authorised from an offence against section 233B of the
Customs Act 1901 or an associated offence to any
- enabling persons other than law enforcement officers to take
part in Commonwealth controlled operations and to extend to them
the same immunities and indemnities available to law enforcement
- adding the Australian Customs Service (Customs) to the list of
Commonwealth agencies whose senior officers can authorise a
Commonwealth controlled operation. At present, these agencies are
the Australian Federal Police (AFP) and the National Crime
- increasing the duration of a controlled operations certificate
from 30 days to a maximum of six months
- establishing a statutory regime for the acquisition and use of
assumed (false) identities by law enforcement officers,
intelligence officers and others
- reforming the law relating to the evidence of child victims and
witnesses in Commonwealth sexual offence proceedings
- amending the law in relation to the obligations of Commonwealth
- providing for a new class of listening device warrant-a warrant
relating to an 'item', and
- amending the Financial Transaction Reports Act
There are linkages between the controlled
operations and assumed identities provisions in the Bill. For the
most part, however, the Bill covers a number of disparate areas.
For this reason, background information about each topic can be
found under the relevant heading in the Main Provisions
The Bill's assumed identity provisions apply to
a number of Commonwealth agencies including the Australian Secret
Intelligence Service (ASIS) and the Defence Signals Directorate
(DSD). The Intelligence Services Bill 2001 which is currently
before the Parliament provides a legislative basis for these
organisations and, among other things defines their functions. It
is relevant to the assumed identities provisions in the Measures to
Combat Serious and Organised Crime Bill 2001. Readers wanting
background information about ASIS and DSD and a discussion of the
Intelligence Services Bill should consult Bills Digests Nos. 11
& 12, 2001-02.(2)
Schedule 1-Controlled operations
controlled operations legislation
Commonwealth controlled operations legislation
had its genesis in the High Court's decision in Ridgeway v.
Queen.(3) On his release from prison, a person with
drug trafficking convictions-Ridgeway-contacted a former associate
in order to obtain some heroin. However, the former associate had
turned police informer. The police and the former associate
arranged to buy and import heroin into Australia and sell it to
Ridgeway who was then arrested, charged and convicted of offences
under the Customs Act. The High Court quashed Ridgeway's
conviction. In their joint judgment, Mason CJ, Deane and Dawson JJ
In these circumstances ... grave and calculated
police criminality; the creation of an actual element of the
charged offence; selective prosecution; absence of any real
indication of official disapproval or retribution; the achievement
of an objective of the criminal conduct if evidence be
admitted-combine to make the case an extreme one in which the
considerations favouring rejection of evidence on public policy
grounds are extremely strong.(4)
Their Honours also remarked:
... in the context of the fact that deceit and
infiltration are of particular importance to the effective
investigation and punishment of trafficking in illegal drugs such
as heroin, it is arguable that a strict requirement of observance
of the criminal law by those entrusted with its enforcement
undesirably hinders law enforcement. Such an argument must,
however, be addressed to the Legislature and not to the courts. If
it be desired that those responsible for the investigation of crime
should be freed from the restraints of some of the provisions of
the criminal law, a legislative regime should be introduced
exempting them from those requirements.(5)
Following the decision, controlled operations
legislation was enacted in South Australia(6), New South
Wales(7) and by the Commonwealth Parliament. More
recently, controlled operations legislation has been enacted in
The Crimes Amendment (Controlled Operations)
Act 1996 inserted Part 1AB into the Crimes Act 1914
(Cwlth). Part 1AB creates a statutory regime governing Commonwealth
controlled operations. It:
- exempts law enforcement officers(9) from criminal
liability when they are involved in an authorised controlled
operation relating to an offence against section 233B of the
Customs Act (a section 233B offence) or an associated offence, and
commit what would otherwise be narcotics offences. Section 233B
creates offences relating to the importation and exportation of
- empowers the AFP Commissioner and the Chairperson of the
National Crime Authority to authorise controlled operations
- stipulates when a controlled operations certificate can be
granted, and its form, content and duration
- requires the AFP Commissioner and the Chairperson of the NCA to
report to the Minister about controlled operations, and
- obliges the Minister to report to Parliament about controlled
In 1998, the Commonwealth Attorney-General's
Department reviewed Part 1AB of the Crimes Act. In its submission
to a 1999 inquiry conducted by the Parliamentary Joint Committee on
the National Crime Authority (PJC) it noted a number of proposals
for reform made during the consultations accompanying the review.
- expanding the categories of offences for which controlled
operations certificates could be issued
- enabling persons other than law enforcement officers to have
the same immunities as law enforcement officers when engaged in
authorised controlled operations, and
- extending the duration of controlled operations
In 1999, the PJC resolved to report on the NCA
and controlled operations legislation. Among the recommendations
made by the PJC were that:
- the Government recommend to the Standing Committee of
Attorneys-General that uniform controlled operations legislation be
enacted by all jurisdictions based on the Law Enforcement
(Controlled Operations) Act 1997 (NSW)-subject to amendments
foreshadowed both by a review of that Act and the recommendations
made by the PJC.
- a two-tier system for authorising controlled operations be
established-with minor controlled operations being approved
internally and major operations being subject to an external
- when considering an application for a controlled operations
certificate, the authorising officer should be 'reasonably
satisfied' or 'satisfied on reasonable grounds' of the matters set
out in the legislation rather than being 'satisfied' (the present
- the 'no entrapment' requirement in paragraph 15M(b) should be
- the Commonwealth Ombudsman should have oversight of controlled
- the definition of 'controlled operations' should be extended to
refer to operations carried out to obtain evidence that could lead
to a prosecution for theft, fraud, tax evasion, currency
violations, illegal drug dealings, illegal gambling, obtaining a
financial benefit by vice engaged in by others, extortion,
violence, bribery or corruption by or of a Commonwealth, State or
Territory officer, bankruptcy and company violations, illegal
importation or exportation of fauna, money laundering and people
- immunity from criminal and civil liability should be available
to all persons authorised to participate in controlled
- the duration of a controlled operations certificate be extended
from 30 days to three months.
The Government responded to the PJC's
recommendations on 29 March 2001. Among other things it:
- agreed with points 3, 4 & 7
- agreed in part with point 6. That is, it agreed that controlled
operations should be available for a greater number of Commonwealth
offences but concluded that the range of Commonwealth criminal
activity for which a controlled operations certificate could be
sought should not be limited.
- agreed in part with point 8. The Government agreed that the
existing 30 day time frame for a controlled operations certificate
was inadequate but considered three months also to be
- disagreed with points 2 & 5.
Title, purposes and definitions
Item 11 of Schedule 1 repeals
the existing heading for Part 1AB of the Crimes Act ('Controlled
operations for obtaining evidence about certain offences relating
to narcotic goods') and replaces it with a new heading ('Controlled
operations for obtaining evidence about Commonwealth offences').
Although the title of the Bill refers to 'serious and organised
crime' the new title for Part 1AB reflects the fact that the
amendments enable controlled operations to be conducted-subject to
the terms of the legislation-in relation to any Commonwealth
Section 15G of the Crimes Act sets out the
objects of Part 1AB. Item 12 amends section 15G in
a number of ways. First, it reflects the expansion of the
controlled operations regime from narcotics offences to any
Commonwealth offence. Second, it states that another object of Part
1AB is to exempt from criminal liability and indemnify from civil
liability persons other than law enforcement officers who
take part in an authorised controlled operation. Third, it states
that law enforcement officers and others will be protected when
they are involved in what would otherwise be an offence against
Commonwealth, State or Territory law.(12) Fourth,
another object of the legislation will be to indemnify from civil
liability law enforcement officers who participate in authorised
controlled operations (at present these officers are only protected
from criminal liability). Fourth, another new object of the
legislation will be to require the Chief Executive Officer of
Customs to report to the Minister on controlled operations
Item 17 repeals and replaces
sections 15H, 15I and 15J of the Crimes Act. Existing section 15H
defines a controlled operation as involving law enforcement
officers engaging conduct that would otherwise constitute a
narcotics offence in order to obtain evidence for the prosecution
of a section 233B offence or an associated offence. New
section 15H expands the definition of 'controlled
operation' in a number of ways. It will include an operation to
obtain evidence for the prosecution of a 'Commonwealth offence' and
may involve a law enforcement officer or other person
engaging in otherwise illegal conduct.
Immunities and indemnities
New subsection 15I(1) immunises
a law enforcement officer who engages in conduct that would
otherwise be an offence against Commonwealth, State or Territory
law from criminal liability if the conduct:
- occurs in the course of duty during a controlled operation,
- meets the requirements of subsection 15IB(1) and any
requirements prescribed by regulation.
New subsection 15I(2) provides
the same immunity to a non-law enforcement officer whose
- occurs during the course of a controlled operation
- is authorised by a law enforcement officer, and
- meets the requirements of subsection 15IB(2) and any
requirements prescribed by regulation.
New subsection 15IA(1)
indemnifies law enforcement officers who take part in a controlled
operation when they engage in conduct in the course of duty and
their conduct meets the requirements of:
- subsection 15IB(1), and
- any regulations.
New subsection 15IB(1)
specifies that there must be a section 15M certificate in force
authorising the operation, the conduct must be covered by the
certificate and not breach any conditions contained in the
certificate, the conduct must not involve intentionally inducing a
person to commit an offence they would otherwise not have
committed, and the conduct must not involve the commission of a
sexual offence or an offence involving death or serious injury.
Indemnities apply in a similar fashion to
persons other than law enforcement officers who are involved in
controlled operations [new subsection
The immunities and indemnities provided by
new sections 15I and 15IA do not apply if a
person's conduct could be authorised under certain other criminal
investigation laws (new section 15IC). The
Explanatory Memorandum explains that the purpose of new section
15IC 'is to make clear that the proposed new controlled operations
provisions do not override or oust specific laws governing the
conduct of criminal investigations on specific
topics'.(13) Examples of those laws include laws
governing arrest, listening devices and telecommunications
Applying for a controlled operations
certificate and authorising a controlled operation
Under the law as it stands, an application for a
controlled operations certificate is made to the AFP Commissioner,
a Deputy Commissioner or an Assistant Commissioner, or to a member
of the NCA (section 15J). Only a law enforcement officer who is in
charge of a controlled operation can apply for a certificate
authorising a controlled operation (section 15J). New
section 15J amends the law in a number of ways. For
- enables any 'Australian law enforcement officer' to apply for a
controlled operations certificate
- adds the CEO of Customs and other senior, authorised Customs
officers to the list of persons empowered to authorise a controlled
Items 19 and 20 amend section
15M which sets out the grounds on which a controlled operations
certificate can be issued. At present, an authorising officer can
issue a certificate if 'he or she is satisfied' about the criteria
in paragraphs 15M(a)-(d). As a result of item 19
the authorising officer will only need to be 'reasonably satisfied'
about the criteria in new paragraphs
The matters set out in existing
paragraphs 15M(a)-(d) about which the authorising officer must be
- that he or she has been provided with 'as much information as
is available to the applicant about the nature and quantity of
narcotic goods to which the operation relates'
- the likelihood that the target of the operation will commit a
section 233B offence irrespective of whether the operation
- the operation will make it 'much easier' to obtain evidence
leading to the prosecution of the target, and
- any narcotic goods to which the operation relates that are in
Australia at the end of the operation will be under the control of
an Australian law enforcement officer.
New paragraphs 15M(a)-(h)
require the authorising officer to be 'reasonably satisfied'
- it is likely a Commonwealth offence has been, is being or will
- the offence and any related criminal activity justifies a
- conducting the operation will not involve intentionally
inducing a person to commit an offence they would not have
- any unlawful activity associated with the controlled operation
will be restricted
- the operation will be conducted to ensure, 'to the maximum
extent possible', that any 'illicit goods'(14) involved
in the operation will be under the control of an Australian law
enforcement officer at the end of the operation. The present
requirement is satisfaction that any narcotic goods in Australia at
the end of the operation will be under the control of an Australian
law enforcement officer. Foreshadowing the amendment in its
response to the Parliamentary Joint Committee, the Government said
that 'The proposed formulation will promote improved operational
planning but does not require certainty as to operational
- any unlawful activity during the controlled operation will not
cause death or serious injury, involve a sexual offence or
loss/damage to property, and
- if a non-law enforcement officer is involved in the operation,
the role assigned to that person could not be adequately performed
by a law enforcement officer.
Existing section 15N of the Crimes Act
stipulates the form and content of a controlled operations
certificate. For example, it must be in writing and signed, state
the name of the applicant and give a brief description of the
controlled operation-including the name of the target, the nature
and quantity of the narcotics involved and the foreign countries
through which they are expected to pass [subsections 15N(1) and
(2)]. At present, a controlled operations certificate expires after
30 days [subsection 15N(4)].
The existing terms of subsections 15N(1) and (2)
are largely unchanged-except by the substitution of the expression
'any illicit goods' for 'narcotic goods'. This amendment is in
keeping with the expanded range of controlled operations
contemplated by the Bill. However, items 23-25 add
to section 15N in a number of ways. For example, new
paragraphs 15N(2)(ca)-(cd) provide that a certificate must
state the nature of the activities it covers and the nature of the
activities assigned to particular operational personnel, identify
any non-law enforcement officers who are involved in the operation,
and any conditions to which the operation is subject. New
subsection 15N(2A) provides that a person who is not a law
enforcement officer may be identified by a false name if the AFP
Commissioner, NCA Chairperson or CEO of Customs has a document
enabling the person's true identity to be ascertained. New
subsection 15N(4) increases the length of time a
controlled operations certificate can be in force from 30 days to 6
months. However, in order for a certificate to be in place for more
than 3 months it must be reviewed.(16)
Varying a controlled operations
While the current legislative regime enables
controlled operations certificates to be surrendered, it does not
allow for their variation.
Item 27 inserts new
section 15NA which enables an authorising officer to vary
a controlled operations certificate. A certificate can be varied
- the certificate, as varied, could have been issued under
section 15M, and
- it is necessary for the success of the operation, the health or
safety of any person, the protection of property or to ensure that
anyone involved in the operation has the appropriate immunities and
If the authorising officer agrees to vary the
certificate, each variation must be stated in writing [new
Terminating a controlled operations
New section 15OA enables an
authorising officer to terminate a controlled operations
certificate by providing written notification to the officer in
charge of the operation. The notification must specify the time
when the notification takes effect (item 28).
The duration of a controlled operations
At present, a controlled operations certificate
expires after 30 days. As a result of new section
15OB, a controlled operations certificate expires 3 months
after the date on which it was issued, unless it has been reviewed
and the authorising officer concludes that it should be in force
for 6 months or some earlier time [see existing paragraph
What happens if a person is unaware that
a controlled operations certificate has expired or been varied,
surrendered or terminated?
Item 31 inserts new
section 15PA which provides that if a controlled
operations certificate has expired (after 3 months), been varied,
surrendered or terminated, a person will still be covered by the
immunities and indemnities contained in sections 15I and 15IA so
- he or she is unaware of the expiry, variation, surrender or
- is not reckless about the existence of the expiry, variation,
surrender or termination.
Reports to the Minister
Item 34 repeals and replaces
section 15R of the Crimes Act. The present reporting requirements
oblige the AFP Commissioner or the NCA Chairperson to advise the
Minister 'as soon as practicable' after making a decision about an
application for a controlled operations certificate of the decision
and the reasons for it. These reasons must include an indication of
the extent to which the seriousness of criminal activities were
taken into account.
New section 15R requires the
AFP Commissioner, NCA Chairperson and CEO of Customs to report to
the Minister within 2 weeks from the end of each quarter about each
decision to grant or refuse a controlled operations certificate,
each variation, review, surrender or termination of a certificate
and each certificate that is still in force. A 'quarter' is defined
as 'a period of 3 months ending on 31 January, 30 April, 31 July or
31 October' (item 9).
Item 35 amends section 15S of
the Crimes Act. In particular, it repeals and replaces subsections
15S(1) and (2). The amendments provide that a report made under
section 15R must include the reasons why decisions were made to
grant or refuse an application or vary or review a certificate. If
a controlled operation has been finalised during the relevant
quarter, the report must identify each person targeted by the
operation and each person involved in the operation, indicate which
people were not law enforcement officers, and what activities were
engaged in. If the operation involved illicit goods, the report
must state the nature and quantity of those goods and the route
through which the goods passed. If the operation involved illicit
goods that are narcotic goods, the reporting requirements generally
re-produce those in existing subsection 15S(2).(17)
Item 41 provides that if
Schedule 1 does not commence at the beginning of a quarter, then
the new reporting requirements will not apply to decisions made or
certificates given before the commencement. The old reporting
requirements will continue to apply to those decisions and
Item 48 provides that
amendments will not apply to a controlled operations certificate in
force immediately before the commencement of the amendments. The
old provisions will apply to such certificates.
Schedule 2-Assumed identities
If the Bill is passed, intelligence and law
enforcement officers and others (including those involved in
controlled operations) will have access to a statutory regime for
assumed (false) identities. At present, there is no Commonwealth
legislation governing assumed identities. The Minister's Second
Reading Speech explains the assumed identities provisions in the
Assumed identities are false identities adopted
to facilitate intelligence and investigative functions, or
infiltration of a criminal, hostile or insecure environment with a
view to collecting information and investigating offences. Law
enforcement and intelligence agencies require assumed identities to
protect officers and others in the course of performing their
functions. Criminals increasingly seek to verify commonly carried
identification, such as Medicare cards. It is proposed to amend the
Crimes Act to permit law enforcement and intelligence officers, and
other approved persons, to obtain and use assumed identities to
support their activities.
Who can obtain an assumed
As a result of new sections 15XA and
15XB, 'approved officers' and 'approved persons' can
acquire evidence of and use an assumed identity.
'Approved officers' include officers of the AFP,
Customs, ASIO(18), ASIS, DSD, DIO(19), and
the Australian Taxation Office (ATO). Also included are officers of
certain State and Territory agencies such as police forces, the
ICAC(20), CJC(21), Western Australian
Anti-Corruption Commission and similar bodies. Further, officers of
Commonwealth, State and Territory agencies prescribed by regulation
may be 'approved officers'. Officers of foreign law enforcement,
intelligence or security agencies may also be 'approved
The expression, 'approved person', is merely
defined as any person who is authorised to use an assumed identity
under subparagraph 15XI(2)(d)(i).
What does 'using an assumed identity'
Using an assumed identity means representing,
expressly, impliedly or by words, conduct or omission, a false
identity as a real identity or acting in a way that is consistent
with a false identity [new subsection 15XA(2)].
The Explanatory Memorandum gives an example of the use of an
... if a person acquires a passport as evidence
of an assumed identity, it is intended that the person will be able
to use that passport to travel outside Australia as if it were the
person['s] real identity and not just hold the passport as a means
What does 'acquiring evidence of an
assumed identity' mean?
'Acquiring evidence of an assumed identity'
includes obtaining documents or other things purporting to show the
person's identity when it is not the person's real identity
[new subsection 15XA(3)].
Who can authorise the acquisition and
use of an assumed identity?
Assumed identities can be authorised by the head
of a participating agency or by an authorised person who belongs to
a class of persons prescribed by regulation (new section
15XA). 'Participating agencies' are the Commonwealth,
State and Territory participating agencies mentioned above.
Effect of an assumed identity
New subsection 15XB(1) enables
an 'approved officer' to acquire and use an assumed identity in the
course of duty and subject to any conditions that are imposed.
New subsection 15XB(2) enables an 'approved
person' to acquire and use an assumed identity in accordance with
directions from a supervising officer and any authorisation
conditions. A 'supervising officer' is the person in the
authorising officer's participating agency who is responsible for
supervising the acquisition and use of an 'approved person's'
assumed identity [new section 15XA and new subparagraph
New section 15XC protects an
'approved officer' or 'approved person' from criminal liability in
certain circumstances. For instance, an 'approved officer' is not
criminally liable for conduct that would otherwise constitute an
offence against Commonwealth, State or Territory law if:
- the officer engages in the conduct in the course of duty when
acquiring or using an assumed identity, and
- the conduct accords with any authorisation conditions, and
- the conduct would not be an offence if the assumed identity
were the officer's real identity [new subsection
An example is given of an officer who makes a
misrepresentation that he or she is unemployed but the
representation would be true if the officer's assumed identity were
his or her real identity.
New subsection 15XC(2) protects
an 'approved person' from liability for what would otherwise be
criminal conduct if:
- the person engages in the conduct when acquiring or using the
- the conduct accords with directions given to the person and any
authorisation conditions, and
- the conduct would not be an offence if the assumed identity
were the person's real identity.
New section 15XD requires
'Commonwealth participating agencies' to indemnify 'approved
officers' and 'approved persons' against any liability incurred
subject to conditions that are similar to the requirements of
new section 15XC.
Irrespective of any documentary evidence
obtained as part of an assumed identity, new sections 15XC
and 15XD do not protect an 'approved officer' or 'approved
person' engaging in conduct that requires a particular skill or
qualification if he or she does not in fact possess that skill or
qualification (new section 15XF).
New section 15XE provides that
if an approved officer's or approved person's authorisation is
varied or revoked, the officer or person continues to be protected
from criminal liability and indemnified against civil liability so
long as he or she is:
- unaware of the variation or revocation, and
- not reckless about the existence of the revocation or
New section 15XE sits uneasily
with new section 15XK (see below) which provides
that a person must be given written notice when an assumed identity
is varied or revoked. In other words, if a person must be given
written notice of a variation or revocation, how can he or she be
unaware of it?
In what circumstances can the
acquisition or use of an assumed identity be authorised?
New subsection 15XG(1) enables
an authorising person from a 'Commonwealth participating agency' to
authorise a person to acquire evidence of and/or use an assumed
identity-if it is 'appropriate to do so'. An assumed identity can
only be used in a foreign country if it is 'reasonably necessary to
do so'. Evidence of an assumed identity can be obtained from a
Commonwealth agency or a non-government body.
A 'foreign officer' can also be authorised by
the Commonwealth to acquire evidence of and/or use an assumed
identity [new subsection 15XG(3)]-if the
authorising officer considers that it is 'reasonably necessary to
do so'. A 'foreign officer' is defined as an officer of a law
enforcement, intelligence or security agency from a foreign country
(new section 15XA).
A 'State or Territory participating agency' can
authorise a person (other than a foreign officer) to acquire
evidence of an assumed identity from a Commonwealth agency and/or
use that identity (new section 15XH). The
prerequisites for a State or Territory authorisation for a person
to use an assumed identity in a foreign country are the same as
those for a Commonwealth authorisation.
The contents of an assumed identity
New section 15XI deals with the
contents of an authorisation. The authorisation must be in writing.
It must include the name of the authorising person, the date of the
authorisation, the name of the officer or person who has been given
the assumed identity, the name of the supervising officer (if the
person is an 'approved person'), details of the assumed identity,
all Commonwealth and non-government bodies who will be requested to
issue evidence of the assumed identity, the reasons for authorising
the assumed identity, whether the assumed identity can be used in a
foreign country, and any conditions to which the authorisation is
Revoking and varying assumed
An assumed identity authorisation remains in
force until it is revoked (new section 15XJ).
New section 15XK provides that
an authorisation may be revoked or varied at any time. Written
notice of the revocation or authorisation must be given to the
person who is covered by the authorisation. The notice must state
the date the variation or revocation takes effect, the nature of
any variation, and the reasons for the revocation or variation.
Issuing and cancelling evidence of
The expression 'issuing agency' means a
Commonwealth agency or a non-government body (new section
15XA). In other words, State and Territory agencies-for
example, those responsible for issuing birth certificates or
drivers licences-do not appear to be covered by the
A Commonwealth agency that receives a request to
issue evidence of an assumed identity:
- must comply-if the request is made by a Commonwealth
participating agency [new subsection
- may comply but is not required to comply-if the request is made
by a State or Territory participating agency [new
Where a Commonwealth agency asks a
non-government body to issue evidence of an assumed identity, the
non-government body may comply with the request but is not required
to do so (new section 15XN).
New section 15XO provides that
where a Commonwealth agency has issued evidence of an assumed
identity it must cancel the evidence on the written request of an
New sections 15XP and 15XQ
immunise and indemnify Commonwealth employees in issuing agencies
from criminal or other liability when they comply with request to
supply evidence of an assumed identity.
Offences relating to assumed
New section 15XR creates a
number of offences relating to assumed identities:
- it is an offence for an approved officer to acquire evidence of
or use an assumed identity if the acquisition or use is not in the
course of duty [new subsection 15XR(1)]
- it is an offence for an approved person to acquire evidence of
or use an assumed identity if the acquisition or use is not in
accordance with the directions of a supervising officer
[new subsection 15XR(2)]
- it is an offence for an approved officer or an approved person
to acquire evidence of or use an assumed identity and engage in
conduct that contravenes an authorisation condition [new
In each case the maximum penalty is imprisonment
for 12 months.
New section 15XS criminalises
the disclosure of information revealing that:
- a person has an assumed identity-if the disclosure endangers a
person or prejudices the conduct of an operation carried out by a
participating agency. The maximum penalty is imprisonment for 10
- a person has an assumed identity-if the assumed identity is or
was covered by an authorisation. The maximum penalty is
imprisonment for 2 years.
Miscellaneous provisions relating to
If the real identity of a person who has an
authorised assumed identity might be revealed in court or tribunal
proceedings, then relevant parts of those proceedings must be held
in private and appropriate suppression orders must be made-unless
the court or tribunal considers that the interests of justice
require otherwise (new section 15XT).
'Appropriate records' of authorised assumed
identities must be kept by the head of a Commonwealth participating
agency while the authorisation is in force and for at least 12
months after it has been revoked (new section
15XU). The expression 'appropriate records' includes
authorisations, variations and revocations.
Schedule 3-Protection of children in
proceedings for sexual offences
Children will mostly appear as witnesses in
State and Territory sexual offence proceedings. However, they do
appear as witnesses in federal proceedings-including criminal
proceedings. While the States and Territories have laws protecting
child witnesses they do not apply to proceedings for Commonwealth
offences. The issue of children's evidence has been examined by the
Australian Law Reform Commission (ALRC).(23) In a 1989
discussion paper, the ALRC remarked:
Child witnesses may have special needs in
adapting to an adult court-room environment. With cognitive,
emotional, physical and communicative abilities differing from
adults, they may require additional consideration and different
treatment from that given to adults. Failure to recognise and
address these special needs can result in both trauma to the child
and a breakdown in the fact-finding process essential to the
court's role. ... Although empirical data is scarce, over recent
years a number of studies of criminal cases have shown that the
children involved, especially young children, are emotionally and
mentally traumatised due to the experience of giving evidence in
Amongst the many recommendations relating to
children's evidence made by the ALRC in 1997 were:
- legislation should permit all of a child's evidence, including
evidence in chief and under cross-examination, to be taken prior to
trial and video-taped for presentation at trial whenever the
interests of justice require it(25)
- instead of giving live evidence at committal hearings, the
evidence of child witnesses should be presented in writing, or as
audio or video tapes(26)
- corroboration of a child witness' evidence should not be
required. Judges should be prohibited from warning a jury that
children are unreliable witnesses and that their evidence is
suspect. Warnings should be able to be given but only in
exceptional circumstances that relate to the unreliability of a
particular child witness.(27)
- children should be allowed to choose at least one person to
accompany them into the courtroom and sit with them while they give
- there should be a presumption in favour of the use of
closed-circuit television in all matters involving child witnesses.
A child should be able to decide not to use close-circuit
television. However, a judge should ensure that the child's
decision is an informed one.(29)
- advocacy and professional conduct rules incorporated in
barristers' and solicitors' rules should forbid intimidating and
harassing questioning of children(30)
- a court should have a discretion to permit unconventional means
of giving evidence when child witnesses come from different
cultural backgrounds(31) and or have
The Government has stated that the amendments
are consistent with recommendations made by the Model Criminal Code
Sexual Offences Against the Person Report.(33)
Application and definitions
Item 1 of Schedule 3 inserts
new Part 1AD-'Protection of children in
proceedings for sexual offences'-into the Crimes Act. New
Part IAD applies to those proceedings specified in
new section 15Y, including child sex tourism
proceedings, proceedings relating to sexual assault of United
Nations personnel, proceedings relating to slavery, sexual
servitude and deceptive recruiting, and proceedings for associated
secondary offences and committals.
New section 15YA is a
definitions section. In general, a 'child' is defined as a person
under the age of 18. The expression, 'child witness' includes a
child who is alleged to have been a victim of one of the offences
to which new Part 1AD applies. A 'child witness'
includes a child victim.
Admissibility of evidence
New section 15YB deals with the
admissibility of evidence of a child's sexual reputation in
proceedings to which new Part 1AD applies. Unless
a child is a defendant in the proceedings, evidence of his or her
sexual reputation is not admissible without the leave of the court.
A court must not give leave unless it is satisfied that the
evidence is substantially relevant to the proceedings. Further, if
admitted the evidence cannot be treated as relevant to the child's
New section 15YC deals with the
admissibility of evidence of a child's sexual experience. Unless a
child is a defendant in the proceedings, evidence of their sexual
experience cannot be admitted unless the court gives leave or the
evidence relates to sexual activities with the defendant. A court
cannot give leave unless satisfied that the evidence is
substantially relevant to facts at issue or relates to credibility
and has substantial probative value.
New section 15YD provides that
an application for leave to admit evidence of a child's sexual
reputation or sexual experience must be in writing and made in the
absence of the jury (if the trial is a jury trial). A court
granting an application must state its reasons in writing and
record those reasons.
New sections 15YE-15YH contain
rules about the cross-examination of child witnesses and
- questioning of a child witness may be disallowed by a court if
it is inappropriate or unnecessarily aggressive (new
- an unrepresented defendant cannot cross-examine a child victim.
Instead, questions the defendant wants asked must be put by a
person appointed by the court (new section
- an unrepresented defendant cannot cross-examine a child witness
(other than a child victim) unless the court gives leave. If the
court does not give leave, a third person appointed by the court
must ask questions that the defendant wants put to the child
(new section 15YG), and
- a represented defendant cannot cross-examine a child witness or
victim except through their legal representative (new
Use of closed-circuit television
In general, a child witness must give evidence
via closed circuit television. Exceptions to this general rule are
that the child is at least 16 years of age and chooses not to give
evidence by closed-circuit television, the court orders otherwise
or the court is not equipped for closed-circuit television
(new section 15YI).
If a child witness gives evidence via
closed-circuit television from a place outside the courtroom, then
that place is taken to be part of the courtroom and the court can
order a court officer or other person to be present (new
section 15YJ). If evidence is given by closed-circuit
television, arrangements must be made so that those with an
interest in the proceeding can see the child and anyone present
with the child (new section 15YK). If a child
witness' evidence is not given by closed-circuit television, then
the court must make arrangements that will minimise the contact
between the child and the defendant (new section
Use of video recordings
A court may give leave for a video recording of
a child witness' interview to be admitted as evidence in chief
(new section 15YM). However, such evidence is not
admissible if a court is satisfied that the defendant or their
lawyer has not had an opportunity listen to and see the recording
(new section 15YN).
If a court allows a child witness' interview to
be admitted as evidence in chief, the child must be available for
cross-examination and re-examination [new subsection
Other provisions relating to child
The Bill enables child witnesses to choose an
adult or adults to accompany them while they give evidence.
However, an accompanying adult is prohibited from prompting the
child or influencing or disrupting their answers (new
New section 15YQ prohibits a
court from warning a jury that the law regards children as
unreliable witnesses, or that evidence given by closed circuit
television, video recording or when a child is accompanied by an
adult should be given greater or lesser weight.
New section 15YR creates an
offence of publishing information identifying a child witness or
child victim. The maximum penalty is imprisonment for 12 months or
60 penalty units ($6600), or both. However, no offence is committed
if the publication is an official publication or the court has
given a person leave to publish the information.
Schedule 4-Investigation of Commonwealth
Obligations of investigating
The Bill inserts a note under the new heading,
'Division 3-Obligations of investigating officials'-that the
Division applies both to people lawfully arrested and those taken
to be arrested.
A number of the amendments deal with Indigenous
people and interview friends. An interview friend is a relative,
lawyer or other person chosen by or provided to a person under
suspicion or arrest so that they can be present during questioning
by investigating officials.(34) As the law stands, an
'investigating official'(35) who:
- suspects that a person may have committed a Commonwealth
offence or, due to information received, considers that the
person may be implicated in the commission of a Commonwealth
- believes that the person is an Indigenous person
cannot question the person unless an interview
friend is present or the person has expressly and voluntarily
waived their right to have such a person present [existing
Item 44 amends paragraph
23H(2)(a). Instead of the present provision, amended paragraph
23H(2)(a) will only require an interview friend to be present when
a person is interviewed 'as a suspect (whether under arrest
or not) for a Commonwealth offence'.
The effect of item 48 is
essentially the same as item 44. Item
48 amends paragraph 23K(1)(a) of the Crimes Act so that a
person under the age of 18 years cannot be interviewed as a
suspect by an investigating official unless an interview friend
is present. At present, such persons cannot be interviewed in the
absence of an interview friend if an investigating official
'suspects' they have committed a Commonwealth offence or considers,
on the basis of information received, that they may be implicated
in a Commonwealth offence. Further commentary on these provisions
can be found in the Concluding Comments for this Digest.
While the amendments proposed by items
44 and 48 appear to reduce existing rights of Indigenous
people who are suspected of committing a Commonwealth offence,
those effected by item 45 enhance and clarify some
provisions relating to interview friends:
- an Indigenous suspect or arrested person may choose their own
interview friend-unless he or she expressly waives the right, fails
to exercise it or the interview friend fails to arrive.
- if a person does not choose their own interview friend, the
investigating official must choose either a representative of an
Aboriginal legal aid organisation or a person whose name is on a
list of interview friends maintained under section 23J of the
Item 52 repeals and replaces
section 23P of the Crimes Act. Existing section 23P provides that
if an arrested person is not an Australian citizen, the
investigating official must inform the person that he or she may
communicate with the consular office of the country of which the
person is a citizen and must not commence questioning the person
for a reasonable time so that the person can communicate with their
New section 23P makes a number
of changes. The arrested foreign national must be informed that he
or she can communicate either with the consular office of the
country of which they are a citizen or the country to which
they claim a special connection. This amendment is designed to
cater for the needs of stateless persons. If the foreign national
requests it, the investigating official must notify the consular
office and also forward any written communication from the person
to the consular office. Any information that must be passed on to
the arrested foreign national must be passed on 'as soon as
Schedule 5-Listening device
warrants and Commonwealth laws
Three Commonwealth laws govern the issuing and
use of listening device warrants. They are the Customs Act
1901, the Australian Federal Police Act 1979 and the
Australian Security and Intelligence Organisation Act
1979. Schedule 5 amends the first two statutes.
Under the Customs Act, listening device warrants
can be obtained for the investigation of narcotics offences. Under
the Australian Federal Police Act, listening device warrants can be
obtained for the investigation of non-narcotics offences
categorised as either class 1 general offences or class 2 general
offences. Class 1 offences include murder and kidnapping. Class 2
offences include offences carrying a penalty of 7 years or more
imprisonment which involve a risk of loss of life, serious personal
injury or serious damage to property, drug trafficking etc.
Under the Customs Act and the Australian Federal
Police Act, two types of listening device warrant are
- a particular person warrant(36), or
- a particular premises warrant.(37)
The meaning of a 'particular person' warrant was
considered in the Victorian Court of Appeal case of R v.
Nicholas.(38) The amendments in Schedule 5 are a
response to that case.
Background to the
R v. Nicholas involved a controlled
operation carried out by the AFP, the Thai police and the
Australian Customs Service. As a result of the controlled
operation, the accused was convicted of being in possession of
trafficable quantity of heroin and of attempting to obtain a
commercial quantity of heroin. He was sentenced to 15 years
imprisonment. During the controlled operation, the AFP obtained a
listening device warrant from the Federal Court under section
219B(5) of the Customs Act. The warrant enabled listening devices
to be placed in the bag carrying the heroin and(39)on
the Thai agent who delivered the heroin to the accused.
Conversations between the accused and his co-accused were recorded
by the listening device and admitted into evidence at the accused's
The accused appealed against his convictions on
a number of grounds-including the invalidity of the listening
device warrant. The warrant issued by a Federal Court Judge
referred to a 'particular person, namely a person who obtains or
seeks to obtain possession of a bag described as an "ELITE" brand,
soft-sided, carry bag on casters, black in colour with brown
trimming, containing 24 blocks of compressed white powder ...'.The
appellant argued that this warrant did not fall within the terms of
section 219B(5) because it was not issued in relation to a
The Victorian Court of Appeal concluded that the
warrant did not identify any individual and that it could have
included, during its 28 day period of operation, innocent
possessors of the bag such as porters and taxi drivers. It
re-iterated the common law principle that the legal system does not
recognise general warrants in the absence of specific statutory
authorisation. General warrants have long been regarded as invasive
and unsusceptible to proper controls. However, the Court did not
agree that the evidence obtained from the warrant should be
excluded. It rejected any suggestion that the officers obtaining
the warrant acted dishonestly and drew attention to the fact that a
Federal Court judge had issued the warrant.
Listening device warrants in relation to
New subsection 12G(5A) of the
Australian Federal Police Act enables a Judge or nominated AAT
member to issue a listening device warrant in relation to an 'item'
if satisfied about the matters listed in new paragraph
12G(5A)(b). These matters include: that the item has been
or is likely to be used in relation to the commission of a class 1
or class 2 general offence, information recorded in the vicinity of
that item might assist in inquiries about the use of the item in
the commission of the offence, and that some or all of the
information cannot be obtained by other means or by a particular
person or particular place listening device warrant.
Similar amendments are made to listening device
provisions in the Customs Act relating to the commission of
narcotics offences [new subsections
Schedule 6-Amendment of the
Financial Transaction Reports Act 1988
The Financial Transactions Reports Act
1988 (the FTR Act) establishes AUSTRAC(40), which
is an anti-money laundering and financial intelligence
agency.(41) AUSTRAC says this about its work:
We work to ensure that financial service
providers and other specified groups (our cash dealers) identify
their customers and so reduce the occurrence of false name bank and
other accounts. Through our compilation and analysis functions, we
monitor and identify money laundering related to serious crime and
major tax evasion. We provide this financial intelligence to the
Australian Taxation Office (ATO) and Commonwealth, State and
Territory law enforcement, security and revenue
Some of the amendments contained in
Schedule 6 relate to cash dealers. Under the FTR
Act, cash dealers are required to report certain transactions to
AUSTRAC and ensure that all account signatories are identified. The
transactions that cash dealers must report are:
- significant cash transactions-more than $10,000 in Australian
currency or its equivalent in a foreign currency
- international funds transfer instructions
- suspicious transactions that may be connected with criminal
Items 1 and 2 of Schedule 6
amend the definition of 'cash dealer' in subsection 3(1) of the FTR
- excluding real estate agents acting in the ordinary course of
business from the definition
- including in the definition persons exchanging currency on
behalf of others
- including persons carrying on a business of remitting or
transferring currency or prescribed commercial instruments into or
out of Australia.
Item 4 inserts new
section 17J into the FTR Act. New section
17J provides that information about a specific financial
transaction received by AUSTRAC as a result of a request to a
foreign country or agency will be covered by the FTR Act. As a
result the FTR Act's secrecy and access provisions will apply to
Paragraph 27(1)(b) of the FTR Act enables the
Director to authorise a law enforcement agency to access FTR
information for the purposes of performing its functions.
Item 5 inserts new subsection
27(1B) which states that the Queensland Crime Commission
and the Western Australian Anti-Corruption Commission can only be
given access to FTR information if they undertake to comply with
the Commonwealth's information privacy principles.
Items 6 and 7 amend subsections
27(16) and (17) of the FTR Act so that officers of the Queensland
Crime Commission and the Western Australian Anti-Corruption
Commission can access FTR information.
Schedule 7-Pardons, quashed convictions
and spent convictions
Part VIIC of the Crimes Act applies to free and
absolute pardons, quashed convictions and spent convictions. It
provides that individuals who have been pardoned or had their
convictions quashed are not required to disclose them. Individuals
who have minor convictions are not required to disclose them after
a specified period. Part VIIC also prohibits organisations and
individuals taking those convictions into account or disclosing
them without the consent of the person. However, a person with a
spent conviction must disclose that conviction to a 'law
enforcement agency' in a number of circumstances. Additionally,
spent convictions can be taken into account by law enforcement
agencies for certain purposes. These circumstances and purposes
include-decision making about sentencing or prosecution, and
assessing prospective employees.(43)
Section 85ZL of the Crimes Act defines the
expression 'law enforcement agency' to include the AFP, State and
Territory police forces, Customs, the NCA, and the National
Exchange of Police Information (NEPI). NEPI was established in 1990
by Australian police ministers to promote the exchange of
operational policing information between jurisdictions. NEPI has
been replaced by the CrimTrac Agency which was established on 1
Item 1 of Schedule 7 removes
the reference to NEPI in section 85ZL and replaces it with a
reference to the CrimTrac Agency.
Two Senate Committees have examined the Measures
to Combat Serious and Organised Crime Bill 2001. Comments made by
the Senate Standing Committee for the Scrutiny of Bills can be
- Alert Digest No.6 of 2001, 23 May 2001
- Eighth Report of 2001, 27 June 2001.
The Senate Legal and Constitutional Legislation
Committee reported on the Bill in June 2001.(44) It is
not possible to traverse all the comments made in the reports or in
submissions and oral evidence given to the Senate Legal and
Constitutional Legislation Committee. However, some of matters
raised by or with the Senate Committees are mentioned briefly
The Senate Legal and Constitutional Legislation
Committee expressed its concern that:
... very little explanation or reason for the
amendments [was provided], and almost no detail on who is affected
by them or to whom they may apply.(45)
On the other hand, the Government recorded its
... a modern, effective approach to law
enforcement. In the twenty-first century we cannot afford to assume
that laws and procedures that were adequate 5, 10 or 15 years ago
are appropriate today. Some parts of Commonwealth investigation and
procedural law are in need of updating and reform ...
The Bill contains a wide-ranging package of
measures to facilitate the investigation and prosecution of serious
and organised crime.(46)
As a general matter, the Committee recommended
that 'serious and organised crime' should be defined for the
purposes of the Bill. Such a definition would limit the
Commonwealth offences that could be the target of a controlled
operation. It is not clear whether the Committee also wanted the
assumed identity provisions in the Bill to be limited to 'serious
and organised crime' investigations.
The Bill enables the Australian Customs Service
to authorise controlled operations. Questions about these
amendments were raised by and in evidence to the Senate Legal and
Constitutional Legislation Committee. The Committee's majority
report supported the extension of Customs' powers. It made the
point that Customs is a law enforcement and regulatory agency and
commented that government agencies had not opposed the amendments.
However, it recommended that Customs officers undertake training at
the direction of the AFP.(47) The minority report of the
Committee's Labor Senators recommended that Customs should not have
the power to authorise controlled operations. Labor Senators took
the view that Customs is neither focused on organised crime nor a
law enforcement agency with appropriate institutional structures,
culture, training or accountability mechanisms.(48)
Different views were taken by Committee members
about who should authorise controlled operations. The majority
report concluded that authorisation should be an 'in-house'
process.(49) Labor Senators recommended that the
controlled operations provisions should not proceed unless they are
redrafted to implement all the recommendations made by the
Parliamentary Joint Committee on the National Crime Authority
report, Street Legal. This would include a two-tier
approval process with minor controlled operations being authorised
internally and major operations subject to external
approval.(50) The Australian Democrats minority report
recommended that long-term or serious controlled operations should
be subject to external approval by a judicial
The Bill contains a re-worded 'no entrapment'
provision.(52) Before issuing a controlled operations
certificate, an authorising officer must be 'reasonably satisfied'
that conducting the operation will not involve intentionally
inducing a person to commit a Commonwealth, State or Territory
offence they would not otherwise have intended to commit. In its
Eighth Report, the Senate Standing Committee for the
Scrutiny of Bills asked whether 'inducing a person to commit a more
serious offence (eg, importing much larger quantities of drugs)
would constitute "inducing" a person to commit an offence under the
bill'.(53) Another question that could be asked is how
an authorising officer can be reasonably satisfied that the conduct
of the controlled operation will not intentionally induce a person
to commit an offence that he or she would not have otherwise
committed-given the very large number of Australian statutory and
common law offences.
Amendments relating to assumed identities were
generally supported by law enforcement agencies who appeared before
the Senate Legal and Constitutional Legislation Committee. However,
concerns were expressed in some submissions-for instance, those
from the Victorian Bar and the Criminal Bar Association.
Among the issues raised about the assumed
identity amendments were the absence of provisions for a central
register of assumed identities. The Committee remarked:
there appears to be no provision whereby a
central body has knowledge of all those 'persons' [with assumed
identities], how long the identity has operated, and whether it is
likely to continue. Nor is there any clear guidance on the
termination of any identity, except at the request of the
authorising officer. In theory, the identity could continue to
exist and be re-activated when required, without a new
authorisation. In addition, the provision concerning being 'unaware
of the variation or revocation' of an identity, may allow too much
flexibility for some individuals.(54)
The majority of Committee members recommended
that consideration be given to audits of assumed identities by an
external agency such as the Privacy Commissioner.(55)
This view was supported in the minority report.(56)
Other questions raised in various quarters about
the assumed identity provisions include:
- the appropriateness of and necessity of some Commonwealth
agencies being able to obtain assumed identities. For example,
assumed identities can be obtained by Customs, ATO(57),
DSD and DIO officers. For a discussion of the history and functions
of DSD, see Bills Digest No. 11,
- the implications for public funds if persons with assumed
identities receive public benefits as a result of their false
- the threat to the integrity of public records that assumed
identities may entail.(60) A related issue is that while
the Bill provides for recorded evidence of assumed identities to be
cancelled on the request of an authorising person, there is no
requirement to 'physically retrieve the evidence of the
identity'.(61) The Explanatory Memorandum gives an
example of a passport which cannot be used for travel into or out
of Australia, although it may still be in the possession of the
person who had an assumed identity. The Explanatory Memorandum
states that physical retrieval will not be required for
'logistical' reasons.(62) There are offence provisions
in the Bill and the Crimes Act that would cover misuse of cancelled
assumed identity documents. However, a further question is whether
there should also be an obligation to surrender or retrieve such
- difficulties for defendants in securing a fair trial when they
may be prevented from knowing anything about the identity,
character or antecedents of an accused who has an assumed identity.
Such matters may be relevant to issues of
The evidence of child witnesses and
victims in sexual offence proceedings
Many submissions to the Senate Legal and
Constitutional Legislation Committee supported the amendments
relating to child witnesses and victims. Both the majority and
minority Committee reports also commended Schedule
5. Some issues raised about the amendments were:
- whether the amendments favoured child witnesses and victims
above the rights of an accused person to a fair
- whether the amendments should be further enhanced to increase
the protections available to child witnesses and extend those
protections to proceedings for all Commonwealth criminal
- how appropriate arrangements can be made for an unrepresented
accused to question a child through a third party. For example, the
Committee recommended that 'Guidelines as to the experience and
skills of qualified person should be developed as a matter of
- the need for unrepresented defendants to be provided with legal
Investigation of Commonwealth
Schedule 4 of the Bill amends
provisions in the Crimes Act that stipulate when investigating
officials must question Indigenous people and minors in the
presence of interview friends. Essentially, the existing
requirement is that questioning cannot occur in the absence of an
interview friend if the investigating official suspects that an
Indigenous person or a juvenile has committed a Commonwealth
offence or has information that the person may be implicated in
such an offence. The amendments will only require an interview
friend to be present if the Indigenous person or juvenile is being
'interviewed as a suspect'.
Referring to the amendments relating to
Indigenous people, the Explanatory Memorandum states that:
The proposed amendment will make the application
of interview friend provisions consistent with the requirements of
the tape recording [of confessions and admissions] provisions
[which apply where the person is being 'interviewed as a suspect
(whether under arrest or not)"]. This will mean that the
requirement to cease questioning a person, unless they have access
to an interview friend, will apply where an investigating official
interviews a person as a suspect ... rather than in the current
The current provisions in the Crimes Act appear
to be based on the recommendations of the Gibbs' Review of
Commonwealth Criminal Law, the draft bill which accompanied its
interim report, Detention Before Charge(69),
and an earlier draft bill prepared by the ALRC.(70)
Special protections for Indigenous people in the criminal justice
system have been supported as a special measure under Article 1(4)
of the International Convention on the Elimination of All Forms of
Racial Discrimination. When introduced in 1990, the amendments were
said to respond to the Interim Report of the Royal Commission into
Aboriginal Deaths in Custody which identified the risks associated
with the initial period in custody.(71) They are also in
keeping with the Royal Commission's Final
In relation to children and interview friends,
the ALRC stated in 1997 that, 'The presence of the interview friend
is an important means of compensating for the disadvantage
experienced by young people when being interviewed'.(73)
It referred to those disadvantages as being '... vulnerability to
pressure, socialisation to agree with adult authority figures, lack
of verbal fluency and a tendency to make false confessions under
expert or hostile questioning'.(74)
Listening device warrants for
The majority report of the Senate Committee
recommended that a time limit be placed on the operation of
particular item warrants.(75) Submissions to the
Committee by the Victorian Bar and the Criminal Bar Association
expressed concerns about warrants for 'items'. The Victorian Bar
objected to the provisions as amounting to a general warrant and a
serious invasion of privacy. The Criminal Bar Association
acknowledged the difficulties faced by law enforcement agencies as
a result of the decision in R v. Nicholas but rejected any
use of the provisions that would effectively result in the grant of
a general warrant-for example, 'releasing an item into the general
community with the intention of gathering such criminal
intelligence as may be detected thereafter'.(76)
- Item 10 of Schedule 4 repeals subsection
23A(6) of the Crimes Act. Subsection 23A(6) provides that Part 1C
of the Crimes Act-'Investigation of Commonwealth offences'-applies
to ACT offences punishable by more than 12 months imprisonment
where the investigating official is an AFP officer. The ACT may
legislate to enact its own statutory regime for the investigation
of ACT offences. However, it is not known when this will occur. The
repeal of subsection 23A(6) is thus contingent on the enactment of
an ACT law and will occur by proclamation once the ACT's law has
- Nathan Hancock, Intelligence Services Bill 2001, Bills
Digest No. 11, 2001-02 & Intelligence Services
(Consequential Provisions) Bill 2001, Bills Digest No. 12,
- (1995) 184 CLR 19.
- (1995) 184 CLR 19 at 42-3.
- (1995) 184 CLR 19 at 43-4.
- Criminal Law (Undercover Operations) Act 1995
- Law Enforcement (Controlled Operations) Act 1997
- Police Powers and Responsibilities Act 2000
- For the purposes of Part 1AB, law enforcement officers include
AFP members, State or Territory police officers, a member of the
staff of the NCA, a Customs officer or a member of a foreign police
- Parliamentary Joint Committee on the National Crime Authority,
Street Legal. The Involvement of the National Crime Authority
in Controlled Operations, December 1999.
- Paragraph 15M(b) is one of the matters about which an
authorising officer must be satisfied before granting a controlled
operations certificate-that 'the person targeted by the operation
is likely to commit an offence against section 233B of the
Customs Act 1901 or an associated offence whether or not
the operation takes place'.
- At present, protection from criminal liability is available,
only for law enforcement officers and only in respect of certain
Commonwealth, State and Territory narcotics offences.
- Explanatory Memorandum, p. 9.
- The expression 'illicit goods' is defined as goods whose
possession is prohibited by Commonwealth, State or Territory law
- Government Response to the Parliamentary Joint Committee on the
National Crime Authority Report "Street Legal: The Involvement of
the National Crime Authority in Controlled Operations", p. 4.
- See the note to new subsection 15N(4) and
new section 15OB.
- These requirements are to identify the nature and quantity of
the goods, the route through which they passed, the name of any law
enforcement agency whose officers had possession of the goods, the
name of any person other than a law enforcement officer who had
possession of the goods during the course of the operation.
Further, the report must state whether or not the narcotic goods
have been destroyed and if they have not been destroyed who has
possession of them.
- Australian Security Intelligence Organisation.
- Defence Intelligence Organisation.
- Independent Commission Against Corruption.
- Criminal Justice Commission, Queensland.
- Explanatory Memorandum, p. 22.
- For example, Australian Law Reform Commission, Seen and
Heard: Priority for Children in the Legal Process, Report
- Quoted in Michael Chaaya, 'Children's evidence in sexual abuse
cases: the need for a radical reappraisal', Current Issues in
Criminal Justice, 9(3), March 1998, pp. 262-78 at p. 269.
- ALRC No. 84, op.cit., recommendation 94.
- ibid, recommendation 95.
- ibid, recommendation 100.
- ibid, recommendation 107.
- ibid, recommendations 108 & 109.
- ibid, recommendation 112.
- ibid, recommendation 116.
- ibid, recommendation 118.
- Explanatory Memorandum, p. 31.
- See, for example, subsections 23H(9) and 23K(3), Crimes
- The expression, 'investigating official' is defined in section
23B of the Crimes Act as a member of the AFP, a State or Territory
police force or a person whose functions include investigating
Commonwealth offences and whose powers include the power of
- Subsection 219B(5), Customs Act and subsection 12G(2),
Australian Federal Police Act.
- Subsection 219B(7), Customs Act and subsection 12G(4),
Australian Federal Police Act.
- (2000) 1 VR 356.
- (2000) 1 VR 356 at 380.
- AUSTRAC is the Australian Transaction Reports and Analysis
current at 30 July 2001.
- Section 85ZZH, Crimes Act.
- Inquiry into the Provisions of the Measures to Combat
Serious and Organised Crime Bill 2001.
- ibid, p. 7.
- Senator the Hon. Ian Campbell, Second Reading Speech, Measures
to Combat Serious and Organised Crime Bill 2001, Senate,
Parliamentary Debates (Hansard), 4 April 2001, p.
- Senate Legal and Constitutional Legislation Committee, op.
cit., p. 21.
- ibid, pp. 52-3.
- ibid, p. 24.
- ibid, p. 52.
- ibid, p. 58. The Senate Standing Committee for the Scrutiny of
Bills sought a briefing from the Minister about why controlled
operations should not be approved by a judicial officer-see
Eighth Report, 27 June 2001. Note, however, that may be a
number of obstacles to federal (and perhaps state) judicial
officers performing this role. First, there are potential
separation of powers problems [see Grollo v. Palmer (1995)
184 CLR 348, Wilson v. Minister for Aboriginal and Torres
Strait Islander Affairs (1996) 189 CLR 1, Kable v. DPP
(NSW) (1996) 198 CLR 51]. Second, in recent years only a few
Federal Court and Family Court judges have been willing to issue
telecommunications interception warrants (see Peter Ford,
Telecommunications Interception Policy Review, May 1999).
While judges of the Federal and Family Courts (and federal
magistrates) may agree to approve controlled operations, it is
conceivable that, as in the case of telecommunications interception
warrants, they will generally refuse to do so. An alternative is
for certain members of the Administrative Appeals Tribunal to be
given this function.
- New paragraph 15M(c).
- Senate Standing Committee for the Scrutiny of Bills, Eighth
Report, p. 325.
- Senate Legal and Constitutional Legislation Committee, op.
cit., p. 32.
- ibid, p. 33.
- ibid, pp. 54-5.
- For example, the minority report of Labor Senators on the
Senate Legal and Constitutional Legislation Committee.
- Hancock, op. cit.
- Senate Legal and Constitutional Legislation Committee, op.
cit., p. 33. In this regard, see the example given in new
- NSW, Office of the Privacy Commissioner, Submission to the
Senate Legal and Constitutional Legislation Committee Inquiry into
Measures to Combat Serious and Organised Crime Bill 2001, p.
- Explanatory Memorandum, p. 28.
- Victorian Bar, Submission to the Senate Legal and
Constitutional Legislation Committee Inquiry into Measures to
Combat Serious and Organised Crime Bill 2001, p. 8. See also
Criminal Bar Association, Submission to the Senate Legal and
Constitutional Legislation Committee Inquiry into Measures to
Combat Serious and Organised Crime Bill 2001, pp. 5-6 and Senate
Legal and Constitutional Legislation Committee, op. cit., p.
- Victorian Bar, op.cit., Criminal Bar Association, op.cit.
- NSW Commission for Children & Young People, Submission to
the Senate Legal and Constitutional Legislation Committee Inquiry
into Measures to Combat Serious and Organised Crime Bill 2001.
- Senate Legal and Constitutional Legislation Committee, op.
cit., p. 29.
- ibid, p. 54.
- Explanatory Memorandum, p. 51.
- March 1989.
- Criminal Investigation Bill 1981.
- Hon. Michael Duffy MP, Second Reading Speech, Crimes
(Investigation of Commonwealth Offences) Amendment Bill 1990,
Parliamentary Debates (Hansard), 15 November 1990, p.
- Recommendations 243-245 of the Final Report relating to police
interrogation of Aboriginal juveniles are especially relevant. See
Royal Commission into Aboriginal Deaths in Custody, National
Report, Volume 5, AGPS, Canberra, 1991.
- ALRC, p. 500.
- Senate Legal and Constitutional Legislation Committee, op. cit,
- Criminal Bar Association, op. cit., p. 4.
13 August 2001
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