Bills Digest no. 110 2006–07
Crimes Legislation Amendment (National Investigative Powers and
Witness Protection) Bill 2006
WARNING:
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 Bill.
CONTENTS
Passage History
Purpose
Background
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage
History
Date
introduced: 29 November 2006
House:
Senate
Portfolio:
Justice and Customs
Commencement:
Sections 1 to 3 commence on the day the Bill
receives Royal Assent. Schedules 1 to 6 commence on the 28th day after
Royal Assent
The Crimes Legislation Amendment
(National Investigative Powers and Witness Protection) Bill 2006 (‘the
Bill’) makes changes to law enforcement investigative powers, including
powers to conduct covert investigations, and provides for new arrangements
for the provision of search warrants. It also amends laws for the protection
of witnesses.
The Bill introduces the following measures:
- a delayed notification search warrants scheme which will enable police
officers to get search warrants that will allow the covert entry and
search of premises to prevent or investigate Commonwealth terrorism
offences and a limited range of other serious Commonwealth offences,
in cases where keeping the existence of an investigation confidential
could be ‘critical to its success’
- inserts a new part 1ACA into the Crimes Act which will create a mechanism
to protect the identity of a covert operative who gives evidence in
court proceedings.
The Bill amends the Crimes Act 1914 (Crimes Act);
the Australian Crime Commission Act 2002 (the ACC Act); the Witness
Protection Act 1994 (WP Act); the Customs Act 1901 (Customs
Act), Proceeds of Crime Act 2002 (POC Act) and the Mutual Assistance
in Criminal Matters Act 1987 (MA Act).
On 7 December 2006, the Senate referred the Bill to the
Legal and Constitutional Committee for inquiry
and the report
was tabled on 7 February 2007.
The Scrutiny of Bills Committee reported on the Bill
in the Alert
Digest No. 15 of 2006 and made some recommendations in relation to
‘delayed notification search warrants’ discussed below.
When introducing the Bill to the Senate, Senator Chris
Ellison stated:
Schedule 1 of the proposed amendments fulfils the government’s
election commitment to introduce national model legislation on assumed
identities, controlled operations and the protection of witness identity.
In order to investigate crime, police must be given effective
powers. Contemporary policing requires law enforcement agencies to undertake
covert investigations that extend beyond the boundaries of any one jurisdiction.
To address this threat it is critical that law enforcement agencies
adopt a nationally coordinated and cooperative approach to law enforcement.(1)
A ‘controlled operation’ is a covert investigative method.
In a controlled operation, a law enforcement officer (known as an ‘operative’)
conceals his or her identity in order to associate with people suspected
of being involved in committing, organising or financing crimes and to
gather evidence or intelligence about them.
The operative typically acts under the supervision or
guidance of another law enforcement officer known as a ‘controller’. The
controller acts as the operative’s link to the law enforcement agency
during the course of the operation.
Commonwealth controlled operations legislation had its
genesis in the High Court's decision in Ridgeway v. Queen. 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 said:
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.(2)
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.(3)
In September 2001, Parliament passed legislation to extend
the scope of controlled operations provisions to enable operations against
a broader range of criminal activity subject to appropriate limitations,
review and accountability measures. This legislation was passed as part
of the Measures to Combat Serious and Organised Crime Act 2001and
is enacted through the Crimes Act 1914 (see history of controlled
operations in the Bills Digest).
Controlled operations can currently be undertaken with respect to any
serious Commonwealth offence attracting a penalty of over 3 years imprisonment.
On 5 April 2002, the Prime Minister and state and territory
leaders agreed
on a number of reforms to enhance arrangements for dealing with multi-jurisdictional
crimes. In particular, they agreed to introduce model laws for a national
set of powers for cross-border investigations covering controlled operations,
assumed identities, electronic surveillance devices and the protection
of witness identity.
The replacement provisions dealing with controlled operations
in this Bill are based on a model law on controlled operations, assumed
identities and protection of witness identity that was developed by the
Joint Working Group of the Standing Committee of Attorneys-General and
the Australasian Police Ministers Council. The model law was published
in November 2003 in the Joint Working Group’s Cross-Border
Investigative Powers for Law Enforcement Report. The stated intention
of this model law was to harmonise, as closely as possible, the controlled
operations, assumed identities and protection of witness identity regimes
across Australia.
Information on how the regime currently operates is contained
in the Controlled Operations Annual Report 2005-06 which can be
accessed here.
The Commonwealth Ombudsman monitors and reports on controlled
operations conducted by the Australian Crime Commission (ACC) and the
Australian Federal Police (AFP). Some of these reports
are available to the public.
The Commonwealth Government introduced model legislation
on electronic surveillance devices in 2004. On 8 December 2004, Federal
Parliament passed the Surveillance Devices Act 2004 (Cth) which
significantly widened the circumstances in which Federal law enforcement
agencies (other than ASIO, ASIS and DSD) can covertly use data, optical,
listening and tracking surveillance devices (see further the Bills Digest).(4)
A delayed notification search warrant would enable police
officers to get search warrants that will allow the covert entry and search
of premises to prevent or investigate Commonwealth terrorism offences
and a limited range of other serious Commonwealth offences.
The provisions for delayed notification search warrants
were not included in the model law on cross-border investigative powers
for law enforcement.
The AFP representative told the Senate Committee that:
The ability for police to enter and search premises without
notifying the occupants of the target premises is an important investigative
tool. Searches of this nature—such as controlled operations, telecommunications
interception and the use of electronic surveillance devices and stored
communication warrants—complement the existing investigative tools available
to law enforcement because they allow the examination of physical evidence
such as computers, diaries and correspondence that enable police to
identify the full range of people involved in suspected serious criminal
activity and to obtain evidence of that activity. It is particularly
important in being able to operate to prevent criminal activity. The
rationale for seeking this power and the context in which it would be
used is that there are investigations where keeping the existence of
the investigation confidential, in particular from targets of the investigation
and their associates, is often critical to the success of that investigation.(5)
The Senate Scrutiny of bills Committee tabled a report
into Entry,
Search and Seizure Provisions in Commonwealth Legislation on 4 December
2006.
The Scrutiny of Bills Committee noted that while this
new regime provides some protection of personal rights and liberties through
the warrant application and reporting process, the new Division could
be regarded as trespassing on personal rights and liberties, and so left
the question of whether it does so unduly for consideration by the Senate
as a whole.(6)
These types of warrants exist at the state level but
are much more restricted—delayed notification warrants in the New South
Wales jurisdiction have, as their exclusive focus, prevention and response
to terrorist acts. In Victoria and the Northern Territory the issue of
such warrants are limited to circumstances in which 'a terrorist act has
been, is being, or is likely to be committed'. In Queensland, the warrants
are available in relation to the investigation of organised crime, terrorism
or designated offences, where 'designated offences' is limited to offences
involving death or serious injury with a maximum penalty of life imprisonment.
A similar provision in the United States (US) has proved
controversial. Section 213 of the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (Public Law 107-56), (the US Patriot Act), titled
‘Authority for Delaying Notice of the Execution of a Warrant,’ makes it
legal for investigators to delay notification that a search has taken
place when: they seize no tangible thing; and if the court finds ‘reasonable
cause’ that immediate notification ‘may have an adverse result’ on an
investigation. Under the US Patriot Act, the Government need not tell
a person that a space was searched for up to 90 days.
In the US these are known as ‘sneak-and-peek’ search
warrants. A sneak-and-peek warrant, according to an analysis of the Patriot
Act done by the American
Law Division for Congress, allows agents to secretly enter a home
or office and ‘search, observe, take measurements, conduct examinations,
smell, take pictures, copy documents, download or transmit computer files
and the like’ and depart ‘without leaving notice of their presence.’(7)
New Part 1AC deals with assumed identities. As
the Attorney-General noted in his second reading speech to the Crimes
Amendment Bill 2005:
Assumed identities are false identities adopted to facilitate
intelligence and investigative functions, or the infiltration of a criminal,
hostile or insecure environment with a view to collecting information
and investigating offences.(8)
The 2005 Bill amended the Crimes Act to enable Commonwealth
participating agencies to request assumed identity documents from State
and Territory issuing agencies in accordance with legislation in force
in those jurisdictions.
This Part of the Bill also implements the model laws
published in November 2003 in the Joint Working Group’s Report on Cross-Border
Investigative Powers for Law Enforcement.
The AFP provides an annual report on use of assumed identities.
The 2005-2006 annual report is available here.
The measures relating to assumed identities were passed,
with bipartisan support, under the Measures to Combat Serious and Organised
Crime Act 2001 (see the Bills Digest
for further information). Amongst other things, that Act inserted
section 15XR into the Crimes Act to criminalise the misuse of assumed
identities. As the Attorney-General stated when introducing that Act:
This is not something that is used lightly, and there
is a reporting mechanism in place and criminal punishments for the misuse
and abuse of the system of assumed identities. For the financial year
2003-04, for example, only 71 authorisations were issued. Perhaps in
the coming year we may see a more widespread use of these identities
as security issues come to light. In particular, the controversy that
was before the parliament and the media yesterday concerning controlled
operations at our airports is perhaps a continuing trend and a situation
where we will see these assumed identities being necessary to assist
those officers who are operating under cover. However, that is obviously
going to be an operational matter for the Australian Federal Police
to determine.(9)
The Witness Protection Act 1994 is the legislative
basis for the National Witness Protection Program (NWPP), which provides
protection and assistance to witnesses involved in legal proceedings—for
example, in cases where the witness has given evidence in a serious, or
high profile, criminal trial and as a result, their lives or the lives
of their family are potentially placed at risk.(10) Each State
and Territory has complementary legislation and runs its own witness protection
scheme, however, the AFP Commissioner can enter into arrangements with
an ‘approved authority’, which includes State and Territory Commissioners
of Police, and the Chairman of the ACC, to enable protection and assistance
to witnesses involved in operations run by those organisations. In these
cases, costs are shared between the NWPP and the approved authority.
In the financial year ending 30 June 2006, the NWPP managed
19 active witness protection operations, providing protection to 39 people.
According to the AFP, the majority of people have been accepted into the
program because of their involvement as witnesses in prosecutions relating
to organised, large-scale importation of illegal drugs, or corruption
matters. The movement of witnesses into or out of Australia ‘remains an
active element of the NWPP’.(11)
The Bill makes a number of amendments to the Witness
Protection Act suggested by the Australian Federal Police following a
Review of the National Witness Protection Program report of December
2003.
The Australian Federal Police told the Senate Committee
inquiry into the Bill:
The proposed witness protection amendments are necessary
to address issues which have arisen in the operation of the National
Witness Protection Program. The amendments clarify the basis on which
the AFP can provide protection and assistance to former participants
and their associates as well as to witnesses in state or territory matters.(12)
The Bill makes some technical amendments to the Australian
Crime Commission Act 2002. The amendments will purportedly improve
the function of the ACC by expanding the powers of examiners, aligning
the current search warrant provisions with the Crimes Act model and correcting
some technical errors in the legislation.
The Parliamentary Joint Committee on the Australian Crime
Commission conducted a review
of the ACC Act which was tabled on 10 November 2005. This included substantive
discussion of oversight of the ACC in relation to controlled operations.
The Bill also makes amendments to the search warrant
provisions in the Crimes Act, Proceeds of Crimes Act 2002, Mutual
Assistance in Criminal Matters Act 1987 and Customs Act 1901
to allow law enforcement officers to access data from electronic equipment
once it is seized.
The Senate referred the Bill to the Legal and Constitutional
Committee for inquiry
and the report was tabled on 7 February 2007 as noted above. The Committee
received only thirteen submissions, of which only two, the Law Council
of Australia and the Queensland Council of Civil Liberties (QCCL) were
not from government agencies or police forces.
The QCCL in its submission strongly opposes the controlled
operations provisions because they authorise illegal conduct by police:
‘[t]he purpose of the police is to suppress criminal activity, not to
encourage or create it. There is in our view no justification for any
police instigation of any serious criminal conduct’.(13) The
Law Council strongly opposed delayed notification warrants as well as
other aspects of the Bill which are dealt with under the ‘Main Provisions’
below.
The Committee recommended that the Bill be passed subject
to ten recommendations which focused mainly on human rights safeguards:
- that proposed subsection 15GE(3) be deleted from the Bill
to prevent offences carrying a penalty of less than three years imprisonment
being included in the definition of 'serious offence' by regulation
- that the Bill be amended to retain the requirement for extensions
of controlled operations for three month periods to be approved by a
member of the AAT
- that the Bill be amended to impose an absolute limit of 12 months
on each authorised controlled operation
- that if controlled operations are able to be extended indefinitely,
proposed subsection 15HH(4) should be amended to require enforcement
agencies to report to the Commonwealth Ombudsman on the progress of
current operations every six months
- that proposed section 15KP be amended to prohibit the retention,
copying or recording by a presiding officer of any information or documentation
provided to them under that provision
- that the Federal Government limit the offences in relation to which
delayed notification search warrants may be issued to offences involving
terrorism or organised crime; or death or serious injury with a maximum
penalty of life imprisonment
- that subsection 3SL(1)(b) be deleted so that applications
to impersonate a person for the purposes of executing a warrant are
subject to the same approval process as for other uses of an assumed
identity
- that the Bill be amended to require the Ombudsman to conduct an inspection
of agency files and issue a report to the Minister in relation to the
administration of delayed notification search warrants at least every
six months
- that the definition of 'executing officer' in Schedule 3 be confined
to sworn federal, state or territory police officers, and
- that proposed subsection 25B(2) be amended to require an ACC
examiner to adjourn an examination for an adequate time to enable a
witness to engage an alternative legal representative; and ensure that
a witness will only be examined without representation when his or her
decision to forego representation is express and informed.
The Commonwealth Ombudsman will receive extra reporting
obligations under this Bill. The Ombudsman’s submission to the Senate
inquiry states:
The powers given to the Ombudsman in the 2001 amendments
to the Crimes Act setting up the controlled operations regime were scant.
The Ombudsman was not consulted on that legislation until the last minute
and no attempt was made to align the Ombudsman’s power with those at
his disposal under other legislation where he exercised powers of inspection.
This has been corrected in the Bill. Some issues arose over the extent
of the Ombudsman’s powers but these were resolved after discussion.
A provision based on the Ombudsman Act was added to clarify that legal
professional privilege is not affected by the Ombudsman having access
to documents.
I would like to flag the desirability of having a set
of powers which are automatically available to the Ombudsman whenever
he exercises an inspection role. At present there is a different set
of powers for every inspection regime.(14)
The Ombudsman raised some disquiet of future wide interpretations
of ‘serious crimes’ in relation to the delayed notification warrants:
Given the highly intrusive nature of the power it is
appropriate that the delayed notification search warrant will be available
for investigation of Commonwealth offences and State offences with a
Federal aspect punishable on conviction by imprisonment for a period
of 10 years, namely the high end of suspected serious offences. There
are other offences for which a warrant may also be available, not all
of which are punishable by 10 years’ imprisonment. The list is diverse
and includes recruitment of mercenaries and recruitment of members of
organizations engaged in hostile activities towards foreign governments,
politically motivated violence, dealing with assets frozen under UN
sanctions, sexual slavery or use of communications services to make
death threats. Other offences may in time added to the list and it is
hoped that any additions will be limited only to the most serious criminal
conduct.(15)
The Bill appears to be revenue neutral.
Schedule
1: Amendment of the Crimes Act 1914—Controlled operations, assumed identities
and protection of witness identity
Item 1 repeals the current Parts IAB and IAC of the Crimes
Act and replaces these with Proposed Part IAB—Controlled Operations.
Proposed subsection 15GA(1) preserves judicial
discretion to admit or exclude evidence or stay proceedings, except to
the extent that these discretions are expressly restricted by the Bill.
Proposed subsection 15GA(2) makes it clear that a court should
not apply its discretion to exclude evidence obtained during a controlled
operation solely because it was obtained through the commission of unlawful
acts, provided that the conduct was within the scope of the controlled
operation authority. See the discussion of Ridgeway above.
Proposed section 15GB provides that it is the
intention of the Parliament that this Part is not to apply to the exclusion
of a law of a State or Territory to the extent that the law is capable
of operating concurrently with this Part.
Proposed section 15GD defines the phrase controlled
operation as
an operation authorised under this proposed Part for
which immunity from civil and criminal offences is provided to law enforcement
and other participants. It may involve covert or overt activity,
but its object is to obtain evidence of serious criminal offences against
Commonwealth law or State or Territory law with a federal aspect.
In a covert controlled operation a law enforcement officer (an ‘operative’)
may conceal his or her true identity and associate with people suspected
of being involved in committing, organising or financing crimes to gather
evidence or intelligence about them. In some instances, a civilian
(a non-law enforcement officer) is used as an operative where the civilian
is better placed to attain the information than a law enforcement officer.
During the controlled operation the participant may need to engage in
unlawful conduct (‘controlled conduct’), for which, if not for proposed
section 15GW, the participant would be criminally responsible.
A controlled operation commences at the time an authority is granted
under proposed section 15GH (see also proposed section 15GN).(16)
The Bill enables controlled operations in the case of
a serious Commonwealth offence defined as an offence carrying a maximum
penalty of three or more years imprisonment; or a serious state offence
with a federal aspect. This is defined in subsection 15GE(2)
as a state offence with a similar maximum prison term, but pertaining
to a subject on which the Commonwealth has constitutional power, or an
offence which is incidental to a Commonwealth investigation of a Commonwealth
offence, is defined as a serious state offence with a federal aspect.
Proposed section 15GE provides that regulations may also prescribe
a serious Commonwealth offence, and such an offence need not carry a maximum
imprisonment period of three or more years.(17) Note the Ombudsman’s
comment on this section in the ‘Background’ above.
Applications, formal or urgent, must contain sufficient
information for an authorising officer (usually a Senior Executive Service
officer of the AFP or ACC to make a decision, and include details of previous
authorities applied for in relation to the operation, whether granted
or not. Applications must identify the nature of criminal activity suspected
(including suspected offences), the nature of the controlled conduct which
may be engaged in, the identity of those targeted, and any conditions
to which the operation is subject. An urgent application contains similar
information, but with less detail of, for example, the kind of criminal
activity which is suspected.
Proposed section 15GH provides that the authorising
officer must not grant an authority unless satisfied, on reasonable grounds,
that:
- any unlawful conduct will be limited to the maximum extent consistent
with conducting an effective controlled operation;
- the operation will be conducted in a way that ensures that, to the
maximum extent possible, any illicit goods will be under the control
of Australian law enforcement officers at the end of the operation;
and
- the operation will not be conducted in a way that is likely to induce
a person to commit any offence they would not otherwise commit.
Operations cannot be authorised if they would seriously
endanger the health or safety of a person, would cause death or serious
injury, would involve the commission of a sexual offence, or would result
in significant loss or damage to property other than illicit goods (proposed
section 15GH).
The authorisation process for controlled operations is
‘entirely internal’ to the AFP, the ACC and ACLEI. The Explanatory Memorandum
states that ‘[i]nternal authorisation for controlled operations is appropriate
as the conduct of controlled operations is essentially an internal and
operational matter and provides operational efficiency and protects the
security of the investigation.’(18)
Under the current Crimes Act provisions, appropriate
authorising officers are able to vary an application with the exception
of extending the duration of the controlled operation. Under proposed
section 15GO, this function is given to a nominated member of the
AAT who can extend the duration of a controlled operation only once and
for a period of 3 months. This means a controlled operation could
only run for a maximum of 6 months. The AAT member could only extend the
duration of the authorisation if they were reasonably satisfied that all
the criteria that were required for the granting of the authorisation
remain in existence.
Proposed section 15GL which allows authorisations
of specified individuals to engage in controlled conduct is a new provision
which was not contained in the model laws.
Proposed section 15GG provides that only an Australian
law enforcement officer of a law enforcement agency may apply for an authority
to conduct a controlled operation. Civilians can be authorised to participate
in a controlled operation in limited circumstances. Proposed paragraph
15GH(2)(h) provides that the authorising officer must be satisfied
on reasonable grounds that the role given to a civilian is not one that
could be adequately performed by a law enforcement officer. See the discussion
about use of contractors under Schedule 3 below.
Proposed sections 15GW, 15GX and 15H provide criminal
and civil immunity from prosecution for participants in controlled operations
for acts which would be unlawful but for their taking place as part of
a controlled operation. Participants may be law enforcement officers or
civilians, including informants. The immunity operates where the participant
acts within the terms of the authority and, in the case of a civilian,
where instructions from law enforcement officers are followed.
Proposed section 15HA provides for compensation
to a person who suffers personal injury, or loss or damage to property,
as a direct result of an authorised controlled operation. Current provisions
cover only personal injury. Compensation is not payable where the loss
or damage has been caused by the exercise of powers of criminal investigation
available under different laws than those relating to controlled operations.
That is, only actions which are directly connected to the controlled operation,
and not conduct which is incidental, will be compensable.
Proposed sections 15HH to HT deal with reporting
obligations. Chief officers are responsible for reporting six-monthly
to the Ombudsman and Minister, in addition to annual reports to the Minister.
Reports must detail the number of authorities granted, refused and varied;
the nature of those authorities; any losses or damage which resulted and
the number of authorities expired or cancelled. Chief Officers must report
on completed operations, indicating the nature of the operation, the nature
and quantity of illicit goods detained, and all foreign countries through
which those goods passed. The Ombudsman is also granted comprehensive
powers of inquiry and access to any records held by an agency.
Other provisions which are broader than the current Crimes
Act provisions are:
- proposed section 15GW which provides protection from criminal
responsibility to informants
- proposed section 15GX which provides indemnity against civil
liability to informants
- proposed section 15HA which extends compensation to persons
who suffer personal injury as well as property damage.
Proposed section 15HF creates an offence relating
to the unauthorised disclosure of information. A person is guilty of an
offence if he or she intentionally discloses any information and is reckless
as to whether the information relates to an authorised controlled operation.
However, it is a defence if the disclosure was made:
- in connection with the administration or execution of this Part
- for the purposes of any legal proceeding arising out of,
or otherwise related to this Part, or of any report of any such proceedings
- in accordance with any requirement imposed by law, or
- in connection with the performance of functions or duties, or the
exercise of powers, of a law enforcement agency.
Proposed section 15HG creates an aggravated
form of the offence in proposed section 15HF.
Part 1AC-Assumed Identities
Proposed section 15HW states that the provisions
relating to assumed identities relate to law enforcement agencies, including
the AFP, the ACC, Customs, ACLEI, the Australian Taxation Office (ATO),
or any other agency specified in the regulations.
Proposed section 15HX extends the ability to take
an assumed identity beyond law enforcement officers to include security
and intelligence officers and other authorised people (such as foreign
law enforcement officers) and allows those officers to acquire and use
assumed identities for law enforcement, security and intelligence purposes.
Application can be made by an enforcement or intelligence officer on behalf
of themselves, a colleague, a foreign officer, or a civilian. Application
can be made to the chief officer of the law enforcement or intelligence
officer's agency. Officers applying for identities to be used by foreign
officers or in foreign countries must apply to the chief officer of the
AFP or ACC.
Proposed section 15HY provides that the authorising
officer must be satisfied on reasonable grounds that the assumed identity
is necessary:
- for the purposes of an investigation or for gathering intelligence
in relation to criminal activity;
- for the exercise of powers and performance of functions of an intelligence
agency;
- for the exercise of powers and performance of functions under the
National Witness Protection Program;
- for the training of people to carry out any of these functions or
powers; or
- for any administrative function in support of any of these powers
or functions.
The authorising officer must also be satisfied that the
risk of abuse of the identity is minimal. Specific criminal activity need
not be pointed out by the applicant for the purposes of obtaining authorisation.
Where an assumed identity is requested for use in a foreign country, the
authorising officer must also be satisfied that such an identity is reasonably
necessary in the circumstances.
Proposed section 15HZ(2) provides that if the
authority for an assumed identity relates to a civilian supervised by
a law enforcement officer, the authority can remain in force for a maximum
of three months. Otherwise, authorities for assumed identity run until
they are cancelled, although authorising officers are required to review
the necessity of each authority annually, and every three years for intelligence
officers.
Proposed sections 15JK-JL and 15JN to JR make
provision for the return of evidence of the assumed identity in case of
cancellation. People operating under an assumed identity, and third parties
that assist them in creating and maintaining the identity, are, in a limited
way, indemnified against prosecution for acts which would otherwise be
illegal.
Proposed sections 15J-JY create offences for misuse
of an assumed identity, and for improper disclosure of information about
an assumed identity. Each offence carries a maximum penalty of two years
imprisonment.
Proposed section 15KB deals with audits. A relevant
chief officer must arrange for the audit of assumed identity records at
least six-monthly. Audits may be carried out by a person holding an assumed
identity, or a person who has issued, varied or terminated an identity,
but they may not audit their own file (should they hold a false identity)
or one on which they have worked.
Under proposed sections 15JZ and 15KA, a report
must be provided to the Minister by a relevant chief officer. Reports
must include a description of any unlawful activity uncovered by audits,
and statistical information about the agency's operations as they relate
to assumed identities. In the case of the Australian Security Intelligence
Organisation and the Australian Secret Intelligence Service, a similar
report must be made to the Inspector-General of Intelligence and Security.
Part 1ACA–Witness Identity Protection
This Part of the Bill implements national model legislation
developed by a Joint Working Group of the Standing Committee of Attorneys-General
(SCAG) and the Australasian Police Ministers’ Council, to protect the
true identity of covert operatives who give evidence in court. The model
laws were published in 2003 as part of the Report
on Cross-Border Investigative Powers for Law Enforcement.
However, the Bill goes further than the model legislation,
and expands the proposed scheme beyond law enforcement officers to include
protection for security and intelligence officers and others (such as
foreign law enforcement officers) granted an assumed identity.
The Bill replaces existing section 15XT of the Crimes
Act with new Part IACA. Part IACA will create a mechanism to protect
the identity of a covert operative who gives evidence in court proceedings.
Division 1, sections 15KD – 15KG provide definitions
and ‘avoidance of doubt’ provisions regarding court proceedings.
Division 2 provides for Witness Identity Protection
Certificates for operatives.
Proposed section 15KI provides that the chief
officer of a law enforcement agency or an intelligence agency may give
a witness identity protection certificate for an operative of the agency
in relation to a proceeding if the operative is required to give evidence
on the proceeding. Before issuing the certificate, the chief officer must
be satisfied on reasonable grounds that the disclosure in the proceeding
of the operative’s identity or where the operative lives is likely to:
(i) endanger
the safety of the operative or another person; or
(ii) prejudice
any current or future investigation; or
(iii)
prejudice any current or future activity relating to security.
It could be argued that items (ii) and (iii) above allow
a wide discretion to the chief officer in issuing a witness protection
certificate (WPC). According to the Explanatory Memorandum, allowing the
decision to be made within the law enforcement or intelligence agency
enables an informed decision to be made about the need for protection,
without possible security risks.(19)
The list of enforcement agencies able to issue a WPC
is the same as those enabled to issue an assumed identity, and includes
the AFP, the Australian Customs Service, the ACC, the ACLEI, the Australian
Taxation Office, the Australian Security Intelligence Organization, the
Australian Secret Intelligence Service and any other Commonwealth agency
specified in the regulations. Under section 15LA, the ability to issue
a WPC may be delegated to a Deputy Commissioner or equivalent (for example,
Deputy CEO of Customs, or Director National Operations of the Australian
Crime Commission – Section 15LA(3) lists the deputy for each organisation).
The operative seeking protection must complete a statutory
declaration, containing the following information, to inform the decision-maker:
- whether the operative has been found guilty of an offence, and if
so, particulars thereof
- whether charges are pending or outstanding, and if so, particulars
thereof
- where the operative is an intelligence or law enforcement officer,
whether they have been found guilty, or been accused of, misconduct,
and the particulars thereof
- whether, to the applicant's knowledge, a court has made adverse findings
about their credibility, and the particulars thereof
- whether the operative has made a false representation where the truth
was required, and particulars thereof, and
- anything else known to the operative relevant to their own credibility.
The witness will appear in person to give evidence, be
cross-examined and have their demeanour assessed by the court. However,
their real name and address will be withheld from the court as well as
the defence. Details relating to the credibility of the witness, drawn
from the statutory declaration, will appear on a certificate of protection
issued by the decision-maker, and made available to the defence. This
will mean that the defence is restricted in their ability to question
the credibility of the witness, as only those details revealed on the
certificate will be available.(20)
Under proposed subsection 15KI(4), the decision
to provide a WPC is ‘final, and cannot be appealed against, reviewed,
called into question, quashed or invalidated by any court’. There has
been strong criticism of this provision. The Law Council of Australia
stated:
[subsection 15KI(4)] denies courts any role in evaluating
whether there is a need to protect the true identity of a witness and
in balancing that need against other competing interests.
The proposed regime has the potential to impact substantially
on the rights of an accused. This is because an accused person’s ability
to defend himself or herself may be significantly prejudiced if he or
she is not permitted to discover the role and character of those giving
or providing evidence against him or her.
As with the controlled operation and assumed identity
provisions of the Bill, the proposed amendments grant extraordinary
and unsupervised powers to law enforcement agencies, on the assumption
that superficial, periodic reporting requirements offer sufficient safeguard
against corruption and misuse. As with the other provisions of the Bill,
the proposed amendments fail to properly mitigate against the risk that
individuals’ rights will be infringed.(21)
In its report, the Senate Committee also commented:
The committee can see no justification for the court
to be denied the opportunity to consider the matter of witness identity
on its merits, and in conjunction with other relevant considerations.
It is the role of the court to adjudicate on disputes which, by their
nature, involve more than one party. The rights of each party must be
respected for justice to be done and seen to be done, and any provision
which limits the right of the defendant to question the credibility
of his or her accuser, as this one does, deserves careful implementation
by a court. The committee considers that this is best achieved through
leaving intact the court's discretion to balance the various interests
at stake in individual cases.(22)
The Government defends the lack of an appeal mechanism
for the issue of a WPC on the grounds that the decision to issue a WPC
is based on highly sensitive operational information, and the decision
could not be reviewed without disclosing this information. The Explanatory
Memorandum states:
This may put at risk the safety of operatives or their
families or colleagues and may jeopardise an ongoing investigation.
Review of a decision would therefore defeat the purpose of the witness
identity protection regime.(23)
Subsection 15KP provides for the disclosure of
an operative’s identity to a court’s presiding officer. Upon filing of
the WPC in court, its presiding officer may require the operative to disclose
their true identity to the presiding officer, and/or provide the presiding
officer with photographic evidence of that identity. In its submission
to the Senate inquiry, The Queensland Police Service argued that an amendment
needs to be made to this section, ensuring that the judge is not to record,
copy or maintain any information or photographic evidence relating to
the operative’s true identity. The Qld Police argued that this was essential
to prevent the information being disclosed to a third party – for example
through a subsequent search through court records.(24)
Proposed subsection 15KQ provides for a
court to give leave to a party or a lawyer to ask a question of a witness,
including the operative, that may lead to the disclosure of their identity
or address; or for a court to order a witness to answer a question or
provide information that may lead to the disclosure of their identity
or address, in a limited set of circumstances.
In order for the court to make such an order, it must
be satisfied that:
- there is evidence that, if accepted, would substantially call into
question the operative’s credibility
- it would be impractical to test properly the credibility of the
operative without allowing the risk of disclosure of, or disclosing,
the operative’s identity or where the identity lives
- it is in the interests of justice for the operative’s credibility
to be able to be tested.
Subsections 15KQ (6) to (10) provide that such
applications must be made in the absence of a jury, in a closed court,
and with a publication suppression, and that the court must make any other
order it considers appropriate to protect the operative’s identity. Contraventions
of such court orders carry a penalty of imprisonment for two years.
The Law Council of Australia argued that in practice,
defence lawyers will find it difficult to uncover evidence that would
question an operative’s credibility:
This is because defence counsel will be precluded, under
threat of prosecution, from conducting the sort of pre-trial investigations
and cross-examination that might alert them to raise relevant issues
of credit.(25)
Proposed subsection 15KW creates three offences
relating to conduct which results in the disclosure of an operative’s
identity or address. 15KW (1) provides that a person commits an
offence if they are reckless as to whether a certificate has been given,
and intentionally engages in conduct that results in the disclosure, or
likely disclosure of, the operative’s identity or address. Subsections
15KW (2) and (3) are indictable offences, and provide that
if the person is reckless as to whether the conduct will endanger
the health and safety of another person, or as to whether the conduct
will prejudice the conduct of an investigation or intelligence-gathering
activity, the penalty is imprisonment for 10 years.
In its report, the Senate Committee noted what it considered
to be a significant error in the Explanatory Memorandum to the Bill. At
proposed section 15KW, in relation to disclosure offences, the
Bill states that a person commits an offence if [their] conduct results
in the disclosure of the operative's identity, whereas the Explanatory
Memorandum reports that an offence will be committed if the conduct results
'or is likely to result' in disclosure of the identity.
The Committee commented:
This is a significant anomaly, and warrants special mention
in the context of the increasing number of government agencies who decline
to make written submissions to parliamentary inquiries, preferring instead
to refer committees to the Explanatory Memorandum. The committee would
be less concerned were this an isolated example, but it is not. Officers
from the Attorney-General's Department acknowledged at least one other
inaccuracy in the Explanatory Memorandum, in relation to the possible
use of force by personnel other than police officers. If committees
are to be directed to the Explanatory Memorandum, they should be able
to rely on its accuracy.(26)
Regarding these provisions of the Bill, the Police Association
of Victoria stated:
We are pleased with the proposal to protect the identity
of covert operatives. Being a covert operative is difficult and carries
with it considerable risk and any mechanism that can be introduced to
protect Police officers and others who undertake this important work
is much appreciated.
As well as the objections to certain provisions outlined
above, the Law Council of Australia stated that in general it supported
a model for witness protection which was proposed by the Australian Law
Reform Commission:
The court or tribunal should undertake an independent
assessment of the asserted need for witness anonymity and satisfy itself
that the need is genuine and well-founded in the interests of national
security.
The court or tribunal should only permit witnesses to
testify anonymously if all other less restrictive protective measures
have been considered and found to be inadequate in the circumstances.
The court or tribunal may make orders to conceal the
physical appearance or identity of a witness from the public while allowing
only the parties, their lawyers and the judge, magistrate or tribunal
members to observe the witness. However, other than in exceptional circumstances,
the court in criminal proceedings should not sanction methods which
would conceal the physical appearance of a witness from an accused person
(and his or her lawyers).
The court or tribunal should be reluctant to convict
(or enter a judgment against a party) based either solely or to a decisive
extent on the testimony of any anonymous witness.
The Law Council commented that the Bill’s proposed scheme
is ‘fundamentally at odds with these principles. It prioritises law enforcement
agencies’ internal, un-scrutinised assessments of their operational and
security needs above all other concerns, including a defendant’s right
to a fair trial’.(27)
Schedule
2: Delayed notification search warrants
Item 8 inserts a new Division 2A—Delayed
Notification Search Warrants into Part 1AA of the Crimes Act. This
new Division provides for requesting, authorising, issuing and reporting
obligations with respect to delayed notification search warrants.
Proposed section 3SA provides definitions of terms
used in the Division. The Division applies to:
- a Commonwealth offence that is punishable on conviction by imprisonment
for a period of 10 years or more, or
- a State offence that has a federal aspect that is punishable on conviction
by imprisonment for a period of 10 years or more (see definition in
section 4AA of the Australian Federal Police Act 1979), or
- an offence against section 8 (Recruiting persons to join organizations
engaged in hostile activities against foreign governments) or
9 (Recruiting persons to serve in or with an armed force in a foreign
State) of the Crimes (Foreign Incursions and Recruitment)
Act 1978, or
- an offence against section 20 (dealing with freezable assets) or
21 (giving an asset to a proscribed person or entity) of the
Charter of the United Nations Act 1945, or
- an offence against subsection 147.2(1) or (3) (Threatening to cause
harm to a Commonwealth public official etc), section 270.7 (Deceptive
recruiting for sexual services), or subsection 471.11(2) (Using a postal
or similar service to make a threat) or 474.15(2) (Using a carriage
service to make a threat) of the Criminal Code.
Proposed section 3SB defines the terms ‘eligible
Judge’ and ‘Judge’. ‘Judge’ has its normal meaning as a Judge of a court
created by the Parliament, but also includes a State or Territory Judge.
Eligible Judges in this Division, unlike other parts of the Crimes Act,
will include Family Court Judges. Eligible Judges are Judges who have
consented to be, and have been declared by the Minister to be, eligible
Judges for the purposes of the Act under proposed subsections 3SB(2)
and (3). Both the consent and the declaration must be in writing.
Proposed subsection 3SB(4) provides that any function
or power conferred on a Judge under the Bill is conferred in a personal
capacity, that is, in persona designata, rather than as a court or a member
of a court.
Proposed section 3SC provides that the Minister
may nominate a Deputy President, a full-time senior member, a part-time
senior member or a member of the Administrative Appeals Tribunal (the
AAT) to issue delayed notification search warrants, but only if they have
been admitted for at least 5 years.
Existing section 4AAA of the Crimes Act deals with the
rules that apply if, under a law of the Commonwealth relating to criminal
matters, a function or power that is neither judicial nor incidental to
a judicial function or power, is conferred on specified judicial officers.
The rules currently apply to State or Territory judges and magistrates.
The use of judicial officers raises certain constitutional
issues. See further discussion of the High Court decision of Grollo
v Palmer (1995) 184 CLR 348 which found that Federal
Court judges could validly issue telecommunications interception warrants
here.
Proposed subsections 3SD(1) and 3SD(2) enable
the chief officer of the AFP or of the police force or police service
of a State or Territory to authorise a constable, in writing, to apply
for a delayed notification search warrant in respect of particular premises.
The constable must be from the same police force or police service as
the chief officer. A constable cannot apply for a delayed notification
search warrant without such authorisation. The requirement for authorisation
to apply for a delayed notification search warrant is an additional safeguard
which is not contained in the general search warrant provisions.
Proposed subsection 3SD(3) provides a three part
test which must be satisfied before a chief officer can authorise an application
for a delayed notification search warrant. The chief officer must
be satisfied that there are reasonable grounds to suspect that one or
more relevant offences have been, are being, are about to be or are likely
to be committed. The chief officer must also be satisfied that entry
to and search of the premises will substantially assist in the prevention
of, or investigation into, those relevant offences. Finally, the
chief officer must also be satisfied that there are reasonable grounds
to believe that it is necessary for the entry and search of the premises
to be conducted without the knowledge of any occupier of the premises.
Proposed subsections 3SH(1) and 3SI(2) make it clear that it is
not the intention of this Division that an application for a delayed notification
search warrant should be authorised where there are other means of collecting
relevant evidence.
Proposed section 3SE sets out the procedures to
be followed by a constable applying for a delayed notification search
warrant. Proposed subsection 3SE(2) sets out what must be included
in an application for a delayed notification search warrant. Unless made
remotely under proposed section 3SF, the application must be in
writing. The application must include the name of the applicant, as well
as the name of the constable executing the warrant unless the name of
another constable is inserted. It must also include details or a
copy of the authorisation given under proposed section 3SD, an
address or description of the premises, and must specify the duration
of the warrant sought. Proposed subparagraph 3SE(2)(f) limits
the duration of a delayed notification search warrant to 30 days.
The application must include a description of the kinds of things that
are proposed to be searched for, and state whether entry to adjoining
premises is required.
Subject to proposed subsection 3SE(4), new
paragraph 3SE(2)(i) requires the application to be supported by an
affidavit. Proposed subsection 3SE(4) enables the making of an
application for a delayed notification search warrant without an affidavit
if the applicant believes that it is impracticable for an affidavit
to be prepared or sworn before the application is made or that any delay
would frustrate the effective execution of the warrant. Proposed subsection
3SE(5) requires the applicant to provide as much information as the
eligible issuing officer considers is reasonably practicable and send
a sworn affidavit to the eligible issuing officer within 72 hours of making
the application even if the application was not successful.
Proposed subsection 3SE(6) provides that an eligible
issuing officer may request further information relating to the application,
and may require an affidavit in relation to that further information.
This power enables an eligible issuing officer to be satisfied as to the
necessity for issuing a delayed notification search warrant.
Proposed subsection 3SI(2) sets out seven matters
which an eligible issuing officer must have regard to in deciding whether
to issue a delayed notification search warrant:
- the extent to which the exercise of the powers would assist the prevention
of or investigation into the relevant offences
- the existence of alternative means of obtaining the evidence or information
- the extent to which the privacy of any person is likely to be affected
- the nature and gravity of the alleged offence(s) for which the warrant
is sought
- if it is proposed that adjoining premises be entered for the purpose
of entering the target premises whether that entry is reasonably necessary
- whether any conditions should be included in the warrant, and
- the outcome of any known previous applications for delayed notification
search warrant or a Division 2 warrant in connection with the same premises.
The Explanatory Memorandum states:
Proposed subsection 3SI(2) recognises and balances the
competing public interest in timely and effective law enforcement and
the intrusion on the privacy of a group or individual. The eligible
issuing officer hearing the application must balance these interests
in the circumstances of each application.(28)
Proposed section 3SJ sets out the information
which must be contained in a delayed notification search warrant. The
warrant must also state whether it authorises re-entry of the warrant
premises to return any thing seized or to retrieve any thing substituted,
and if so proposed paragraph 3SJ(1)(j) requires that re-entry to
be within seven days of the day on which the warrant was executed, that
is, the day on which the premises were first entered under the warrant.
Proposed section 3SL sets out what is authorised
by a delayed notification search warrant. The powers under this provision
are based upon the powers conferred under section 27O of the New South
Wales Terrorism Legislation Amendment (Warrants) Act 2005, as well
as powers based on section 3F of the Crimes Act.
Proposed subsection 3SL(2) defines ‘relevant thing’.
A reference to a relevant thing in this section means a thing that an
executing officer or a constable assisting in the execution of the warrant
believes, on reasonable grounds, is evidential material in relation to
an offence to which this Division applies, or evidential material in relation
to another offence which is an indictable offence. This empowers
the seizure of things found on the premises which do not relate to the
relevant offence for which the delayed notification search warrant was
issued but which may constitute evidence of other serious offences.
The power to enter warrant premises authorised at proposed
paragraph 3SL(1)(a) would include a power to enter adjoining premises
specified in the warrant. The power to impersonate a person authorised
by proposed paragraph 3SL(1)(b) would enable executing officers
and constables assisting to gain entry ‘for example, by impersonating
a council technician carrying out routine work for the purposes of allaying
suspicion of other residents of the area.’
Proposed section 3SN based
on section 3G of the Crimes Act, authorises an officer executing the warrant
to obtain such assistance as is necessary and reasonable in the circumstances
to execute the warrant. It also authorises the executing officer
or a person who is a constable who is assisting, to use such force against
people and things as is necessary and reasonable to execute a delayed
notification search warrant.
The proposed section also authorises a person who is
not a constable but who has been authorised to assist in executing the
warrant, to use such force against things as is necessary and reasonable
in the circumstances. A person who is not a constable assisting but who
has been authorised to assist is not authorised to use force against people.
This section may contemplate a contractor or technical assistant such
as an IT specialist, who can help in the search process, eg to look at
parts of a computer found during a search.
See further the Senate Committee discussion of the ‘use
of force’ provisions in Schedule 3.
Proposed subsection 3SN(2) requires that an executing
officer or a constable assisting has a copy of the warrant, but proposed
subsection 3SN(3) clarifies that there is no requirement to produce
the warrant.
Because a warrant allows an executing officer or constable
assisting to impersonate another person during the execution of the
warrant, the occupier may accept the legitimacy of the action, which
obviates the need to produce the warrant, and allows the operation to
remain covert.(29)
Proposed section 3SP authorises the operation
of electronic equipment found at the warrant premises to access data held
on that equipment to determine whether it constitutes evidential material,
and to copy it to a storage device and remove it from the premises.
Proposed subsection 3SP(6) applies section 3M
of the Crimes Act to the delayed notification search warrants scheme,
entitling an occupier to compensation for damage caused to electronic
equipment as a result of it being operated under this section. Given
the covert nature of the operation, compensation would normally only be
paid when an occupier’s notice was provided, unless the occupier had become
aware that damage had been sustained.
Proposed section 3SQ requires that a notice be
given to the occupier of premises entered under a delayed notification
search warrant and sets out the information which must be contained in
the notice. The notice may be prepared by either the executing officer
or the applicant. These requirements will ensure that the occupier of
the premises is aware of why a delayed notification search warrant was
issued in respect of the premises, and what was done under the warrant.
The notice is to be given in accordance with the time limits specified
under proposed section 3SS, that is within six months of
the date on which the premises were first entered under the warrant.
This can be extended by periods of up to six months on
any one application, up to a maximum of 18 months. An extension beyond
18 months from the date of entry may only be granted with the written
approval of the Minister and if the eligible issuing officer is satisfied
that there are exceptional circumstances. This recognises that some investigations
may be undertaken over an extended period.
Proposed section 3ST imposes reporting requirements
on the executing officer of a delayed notification search warrant, whether
or not it was executed.
The chief officer of an authorising agency must report
to the Minister within three months of the end of each financial year
under proposed section 3SU. The report must set out the number
of warrants applied for and issued to officers of the authorising agency
during the year, and specify the number applied for in person or by electronic
means. The report must also include details of the relevant offences to
which the issued delayed notification search warrants relate. The report
must not only specify the number of warrants that were executed, but must
also specify the number of warrants that were executed under which things
were seized, placed in substitution, returned to or retrieved from the
premises, and copied, operated or printed. Additional information may
be requested by the Minister, and the chief officer is obliged to provide
it. The Minister is required to table the report in Parliament.
Proposed sections 3SV-SZ establish an inspection
regime requiring the Commonwealth Ombudsman to inspect the records kept
by authorising agencies at least once every 12 months. The role of the
Ombudsman is to determine whether the records kept are accurate and whether
an authorising agency is complying with its obligations under proposed
Division 2A. The Ombudsman is empowered to enter premises occupied by
the authorising agency at any reasonable time after notifying the chief
officer of the agency. The Ombudsman is then entitled to full and free
access at all reasonable times to all records of the delayed notification
search warrants scheme that are relevant to the inspection. Agency staff
are required to co-operate with requests for assistance and to retrieve
information reasonably required by the Ombudsman.
The Ombudsman may also require written and oral information
from any officer of an agency where the Ombudsman has reason to think
the officer can assist with inquiries. Failure to comply with requests
from the Ombudsman for information are not excused on the grounds that
doing so would contravene a law, would be contrary to the public interest
or might tend to incriminate the person or make them liable to a penalty,
or to disclose certain advice of a legal nature. The Ombudsman may also
pass information to an equivalent state or territory inspecting authority
where it is considered necessary for that authority to carry out its functions.
The maximum penalty for failure to comply with the Ombudsman's request
for information is six months imprisonment (proposed sections 3SZA-SZD).
Under proposed section 3SZF, the Ombudsman is
required to provide a written report to the Minister every six months
on the results of each inspection undertaken, and a copy of the report
must be tabled in Parliament.
Proposed subsection 3SZG(1) creates an offence
of unauthorised disclosure of information relating to an application for
a delayed notification search warrant, the execution of a delayed notification
search warrant, a report prepared by an executing officer or applicant
after the warrant has been executed or has expired, or relating to an
occupier’s notice or adjoining occupier’s notice. The offence carries
a maximum penalty of two years imprisonment.
Proposed subsection 3SZG(2) specifies exceptions
where lawful disclosure can be made. The defendant bears the evidential
burden of proof of the exception in accordance with the provision at subsection
13.3(3) of the Criminal Code.
Schedule
3: Amendments to the Australian Crime Commission Act 2002
Schedule
3 makes amendments to the Australian Crime Commission Act 2002 (the
ACC Act). The amendments are aimed at addressing operational difficulties
experienced by the Australian Crime Commission (the ACC), and making some
minor technical amendments. The main issues arising in Schedule 3 are
outlined below.
Item 1 inserts the following definition of constable
into the ACC Act:
Constable means a member or special member
of the Australian Federal Police or a member of the police or police
service of a state.
Item 4 in Schedule 3 inserts a definition of ‘executing
officer’, in relation to a warrant issued under section 22 of the ACC
Act:
Executing officer, in relation to a warrant
issued under section 22, means:
- the person named in the warrant by the issuing officer under paragraph
22(5)(e) as being responsible for executing the warrant; or
- another person whose name has been inserted in the warrant by,
or on behalf of, the person mentioned in paragraph (a).
Under Section 22 of the ACC Act, a person named in a
warrant as an issuing officer must be a police officer. Item 4
amends the ACC Act to authorise the person named in a warrant to sign
the warrant over to another person. There is no stipulation that that
person must be a police officer.
The Explanatory Memorandum states that this is necessary
due to the ACC employing a number of contract or in-house investigators,
as well as seconded police officers. The employment of contractors is
necessary because the regular rotation of seconded police means there
is a need for continuity and corporate knowledge in long-term investigations.(30)
The Explanatory Memorandum further elaborates that whilst
executing a search warrant, and ACC officer (who may or may not be a police
officer), may be called upon to exercise powers normally given to police
officers, and there will often be the need to carry a firearm.(31)
The powers of executing officers to use force are detailed
in item 26, which inserts new Section 23A into the ACC Act,
allowing the executing officer, or a person who is a constable and who
is assisting in executing the warrant, use of ‘such force against persons
and things as is necessary and reasonable under the circumstances’ (new
section 23A (b)). A person who is not a constable and who is assisting
in executing the warrant is able to use ‘such force against things as
is necessary and reasonable in the circumstances’ (section 23A (c)).
This transfer of warrant execution power to a non-police
officer, particularly if they are authorised to use force and a firearm,
has raised some concern. The Police Federation of Australia stated:
The PFA is concerned that contract investigators may
be brought into the ACC for specific investigations, be sworn in as
a Special Member of the AFP and therefore be eligible to execute search
warrants, use reasonable force and carry a firearm in so doing. We argue
that the community needs to be confident that such investigators, who
are not members of the AFP or a state police force, have the requisite
skills and experience to be given such authority. There appears to be
nothing in the current legislation, the Bill or the Explanatory Memorandum
that would give comfort on this issue.(32)
In its report on the Bill, the Senate Legal and Constitutional
Affairs Committee stated:
… the committee [has] identified a significant anomaly.
In the delayed notification search warrant provisions in Schedule 2,
proposed section 3SN proscribes the use of force against persons and
things by anybody other than a sworn police officer. However, in Schedule
3, which pertains to the ACC specifically, the term 'executing officer'
is defined differently, and need not necessarily be a police officer.
While an issuing officer is required to issue the warrant only on application
by a police officer, there is no requirement that the person nominated
to execute the warrant be a police officer. Furthermore, the executing
officer may transfer the warrant to any other person, who may in turn
execute the warrant and use force against persons and things in doing
so. This may involve carrying a firearm.
In public hearings the committee raised this matter with
the Attorney-General's Department. The AGD representatives responded that
the amendments to the ACC Act contained in Schedule 3 of the Bill were
not intended to authorise any person other than a police officer to use
force against a person or to create any new powers to carry firearms:
…our policy intention was that you could have certain
roles in the execution of warrants being exercised by ACC employees
who were not sworn police, but that they would not extend to the use
of force, or, for example, to the carrying of firearms.(33)
AGD stated that the Bill was being examined to assess
whether amendments to the Bill were required to clarify this intention.(34)
The Senate Committee recommended that the definition
of ‘executing officer’ be confined to sworn federal, state or territory
police officers.
Item 26 inserts new Sections 23A to 23N, which
adds a number of new provisions to the ACC’s search warrant scheme. New
subsections cover:
- availability of assistance and use of force (23A)
- details of a warrant to be given to occupier (23B)
- specific powers available to executing officer (23C)
- use of equipment to examine or process things (23D)
- use of electronic equipment at warrant premises (23E)
- person with knowledge of a computer or computer system to assist access
(23F)
- accessing data held on other premises – notification to occupier of
that premises (23G)
- compensation for damage to electronic equipment (23H)
- copies of seized things to be provided (23J)
- occupier entitled to be present during search (23K)
- receipts for things seized under warrant (23L)
- announcement before entry (23M), and
- dealing with seized equipment (23N).
These provisions mirror sections in the Crimes Act 1914,
to align the ACC’s search warrant scheme with the Crimes Act model. The
Law Council of Australia argued that when these provisions were written
into the Crimes Act in 2000, the Government stated that that the entry
and search powers available to the AFP under the Crimes Act should
constitute the ‘high water mark’ for search powers generally:
The Law Council strongly objects to granting of powers
which are ordinarily reserved for police officers to civilian members
of the ACC. The Law Council believes that if, as a result of staffing
issues at the ACC, there are insufficient police personnel available
to facilitate the proper functioning of the ACC, this matter should
be addressed as a staffing problem and not by granting police powers
to member of staff who are not police officers.
Further, the Law Council argued:
…other agencies should not be granted comparable powers
to those contained in the Crimes Act simply as a matter of course
and alignment. To the extent that the proposed amendments to the search
warrant provisions in the ACC Act represent an extension of that
agency’s powers, the extension of power should be justified.(35)
Subsection 25A(2) of the ACC Act provides that persons
giving evidence (and in special circumstances, persons not giving evidence),
may be represented by a legal practitioner. Item 31 inserts new
section 25B– Refusal to allow particular legal representative. The
proposed section would allow an examiner to exclude a particular legal
practitioner from proceedings where he or she has reason to believe that
allowing the legal practitioner to appear at the examination may prejudice
the effectiveness of the special ACC investigation or operation. This
will allow examiners to exclude a legal practitioner who may, knowingly
or unknowingly, have a conflict of interest if he or she continues to
appear on behalf of a witness. For example, where the legal practitioner
is unknowingly under investigation themselves. The Bill also gives to
examiners a discretion to allow a break in proceedings for a witness to
obtain replacement legal representation.(36)
Subsection (2) of 25B will allow an examiner to
adjourn an examination to allow the witness to find an alternative legal
representative. However, this power is left to the examiner’s discretion,
to ‘avoid the safeguard being used by witnesses as a delaying tactic’.(37)
While noting that it is probable that an examiner already
had the implied power to exclude a legal practitioner in this way under
the existing provisions of the ACC Act, the Law Council of Australia has
nonetheless expressed concern about proposed Section 25B:
An individual’s right to be represented by a legal practitioner
of his or her choice is a key component of access to justice. This right
is particularly important when a person is compelled to attend proceedings
and potentially exposed to liability. The Law Council’s primary concern
is that ACC examiners will fail to consider properly each case on its
merits, taking due care not to unnecessarily infringe upon a witness’s
rights.
Possibly a more alarming aspect to this proposed amendment
is that an examiner is also granted the discretion to continue an examination,
notwithstanding that the witness’s legal practitioner has been excluded
and the witness is subsequently unrepresented.(38)
The Senate Committee examining the Bill expressed similar
concerns:
The right to legal representation is a fundamental one,
and is especially important where, as is the case here, refusal by a
witness to answer a question results in a penalty. The discretion
to allow an adjournment should be removed. Should the witness decline
to locate a mutually acceptable legal representative, the examiner should
be required to offer to appoint an acceptable legal representative for
the witness. No witness should be examined without a legal representative
unless it is his or her express and informed desire to proceed without
representation.(39)
Usually, administrative decisions of an examiner may
be reviewed by the Federal Court under the Administrative Decisions
(Judicial Review) Act 1977 (the ADJR Act). However, decisions
under this section will be exempt from the requirement to provide reasons
(by virtue of Schedule 2 of the ADJR Act) in circumstances where providing
reasons may prejudice either:
- the safety or reputation of a person;
- the fair trial of a person who has been, or may be, charged with an
offence, or;
- the effectiveness of an ACC operation or investigation.
Section 33 of the ACC Act currently contains an offence
of giving information that is false or misleading in a 'material particular'
at an examination, which is punishable by five years imprisonment or a
penalty of 200 penalty units (less if heard by a court of summary jurisdiction).
The Explanatory Memorandum states that it is difficult
to enforce this provision as it is often difficult to identify whether
something is a 'material particular'. During an investigation, the ACC
can demonstrate that information relates to a material particular by reference
to the elements of the particular offence being investigated. However,
when conducting an operation, the ACC is unlikely to be investigating
a specific offence and, as a result, has difficulty identifying a 'material
particular'.(40)
Item 45 of the Bill modifies the offence by reversing
the burden of proof. Under new subsection 33 (1A), the defendant
will bear the evidential burden of proof in proceedings for an offence
of giving information that is false or misleading in a ‘material particular’
at an examination. The defendant bears the burden of adducing or pointing
to evidence that suggests a reasonable possibility that the information
was not false or misleading in a material particular,
rather than the prosecution having to prove beyond a reasonable doubt
that the information was false or misleading
in a material particular.
The Law Council of Australia has criticised the reversal
of the evidential burden of proof, stating that the fact that the matter
may be difficult for the prosecution to prove does not justify the reversal.
A defendant should only be required to bear an evidential
burden where a matter is peculiarly within the knowledge of the defendant,
such that it is significantly more difficult for the prosecution to
disprove than for the defendant to establish the matter.
Whether a matter is a material particular in the context
of an ACC operation is by no means a matter peculiarly within the knowledge
of the defendant. On the contrary, only the ACC itself is likely to
have sufficient oversight of an operation and its purpose to offer evidence
as to what is material to the operation.(41)
Section 28(1) of the ACC Act empowers an examiner to
summons witnesses to an examination, and obtain evidence. Failure to comply
with a summons is an offence punishable by imprisonment up to five years.
New subsection 28(1) extends this power to allow an examiner to
issue a notice to a person requiring certain information in the form of
a written statement. A written statement is subject to the same rules
that govern answers and documents that are provided to an examiner at
an examination.(42)
The Explanatory Memorandum acknowledges that this new
power is broader than existing powers under tax and consumer protection
laws, in that information required may relate to any issue, rather than
be limited to information in relation to offences against the Acts. Despite
the possibility of this amendment placing a ‘heavy burden on witnesses’,
the Explanatory Memorandum argues that the burden is offset by benefits
such as possibly not being required to attend an examination, and the
likelihood of shorter examinations.(43)
The Law Council of Australia argues that this provision
essentially asks the witness to conduct the investigatory legwork for
the ACC.
The Law Council has consistently opposed the extensive
and widely used coercive powers of the ACC examiners on the basis that
they represent an unjustified abrogation of the privilege against self
incrimination. The Law Council believes that the proposed amendments
have the potential to operate even more harshly, by requiring persons
summonsed, not only to answer self-incriminating questions or produce
self-incriminating documents, but to actually proactively make the case
against themselves.
The Explanatory Memorandum’s argument that the requirement
to provide a written statement may, in the end, alleviate the need for
an examination, or make an examination shorter, is dismissed by the Law
Council:
If the convenience of witnesses is genuinely part of
the rationale for the amendment, then failure to give evidence to an
ACC examiner by written statement when summonsed to do so, should not
constitute an offence. The person summonsed should have the option to
attend and answer questions and/or produce specified documents if he
or she would prefer to cooperate in this way.(44)
The Law Council recommended that if the additional power
was to be granted, the Bill should at least prescribe some limits on the
nature or scope of matters that may be required in a written statement.
Under the current provisions of the ACC Act, if a witness
asserts in advance that the answers or documents that he or she is asked
to provide may tend to incriminate him or her, the witness can still be
compelled to provide the relevant information but there are limits imposed
on its use. It can not, for example, be used in a criminal proceeding
against the person concerned unless those proceedings arise from the falsity
of the information provided.(45)
Item 39 clarifies that a witness may make a general
statement about self incrimination at the outset of an examination, without
having to restate the claim in respect of every answer.
The Bill seeks to introduce further circumstances in
which the evidence a witness has been compelled to provide to the ACC
may be used directly against him or her in criminal proceedings.
Item 40 expands the use of information subject
to the privilege against self-incrimination to provide that a truthful
statement which is subject to a claim of privilege may be used as evidence
of another statement’s falsity (including a written statement), in proceedings
for making a false or misleading statement.
The Law Council of Australia strongly opposes this amendment,
arguing that the proposed amendment would mean, for example, that a witness
could receive a summons from the ACC to provide evidence by way of sworn
written statement, with which he or she complies under threat of prosecution.
The same witness may then be summonsed to attend an examination before
the ACC where he or she is effectively cross-examined on the contents
of the sworn statement. If there are inconsistencies, the witness’s own
evidence, provided under compulsion at the examination, may then be used
to prosecute him or her for providing false or misleading evidence in
the sworn statement.
In this case, there are also additional strong public
policy reasons for ensuring that a witness’s evidence may not be used
against him or her in the way proposed. The purpose of the ACC is to
investigate and gather information about serious and organised crime.
The reason the ACC has been invested with such extraordinary powers
is to allow its officers access to the fullest information possible.
The proposed amendments are inconsistent with this goal.(46)
Schedule
4: Amendments to the Witness Protection Act 1994
Schedule
4 makes amendments to the Witness Protection Act 1994.
Items 1 to 10 insert new definitions into the
Witness Protection Act. Many of the other amendments in Schedule 4 are
consequential to these new definitions.
Amongst other things, the new definitions differentiate
between a NWPP participant’s ‘original identity’, ‘current NWPP identity’,
and ‘former NWPP identity’. This recognises that from time to time, individuals
in the NWPP need to change assumed identities. The new definitions ensure
that prior identities assumed under the NWPP, and not just a participant’s
current identity, are protected under the Witness Protection Act 1994.
Item 6 repeals the old definition of ‘participant’ and inserts
the following:
Participant means a person who is included
in the NWPP, and, unless the contrary intention appears, includes a
former participant.
The definition has been amended to reflect the fact that
there are times where protection and assistance need to be provided to
former participants of the NWPP, not just current participants.
Item 16 inserts new subsection 13(5) to
extend the AFP Commissioner’s powers to take action to protect former
NWPP participants and their relatives, friends or associates. The Commissioner
may take action if he/she considers that the actions are necessary and
reasonable for the protection of the former participant or the related
person; and the Commissioner has assessed the suitability of taking the
actions. However, these former participants or related persons do not
become current participants in the NWPP simply because they are provided
with this assistance or protection.(47)
Item 36 repeals the existing subsection 22(1)
and inserts proposed new subsections 22(1) and 22(1A), regarding
disclosure of information.
Proposed section 22(1) makes it an offence
for a person to disclose information about an individual where the individual
is a Commonwealth participant or a Territory participant in the NWPP;
the individual has a current NWPP identity; and the information disclosed
is about the person’s original identity or a former NWPP identity. The
penalty is imprisonment for up to 10 years. The provision reflects the
possible serious implications of a revelation about a participant’s original
or former NWPP identity. Any such disclosure could reveal that a person
is included in the NWPP, and could endanger the participant.(48)
Similarly, new subsection 22(1A) will make
it an offence to disclose that a person is undergoing assessment for inclusion
as a Commonwealth or Territory participant in the NWPP, where that information
may compromise the security of the individual. For 22(1A), the requirement
that the disclosure could compromise a person’s security is important.
The Explanatory Memorandum states:
…it is essential for a person to be able to disclose
identifying information about the current identity of a participant
in order to introduce them to other people. For this reason, proposed
subsection 22(1A) includes the requirement that the disclosure of the
information must compromise the participant’s security or reveal that
the individual is a participant in the NWPP.(49)
Item 40 inserts new subsection 22(3) which
ensures that section 22 applies to the disclosure of information in proceedings
of a court, tribunal, Royal Commission or other commission of inquiry.
The one exception, contained in subsection 26(3) of the Act, is that if
it is essential to the determination of legal proceedings that a judge
or magistrate presiding over the proceedings be advised of a participant’s
location and circumstances, the AFP Commissioner or an AFP employee may
disclose the relevant information to the judge or magistrate in chambers,
but not to any other person. New subsection 22(4) will ensure this
provision continues to apply.
Item 52 also provides a process for protecting
a participant’s original identity, current NWPP identity or former NWPP
identity, where they may be disclosed before a court, tribunal, Royal
Commission or other commission of inquiry. In cases where the identity
is to be protected, the court must:
- hold the proceedings relating to the identity in private
- make orders about the suppression of publication of evidence, as necessary
to protect the identity, and
- make any other orders that are appropriate to ensure that information
that compromises an identity is not made public.(50)
The Bill extends the Act to cover State Participants,
defined as participants who have been included in the NWPP because they
were involved in State offences with a federal aspect. Item 11
inserts new section 3B to specify which offences against a law
of a State are taken to be State offences with a federal aspect, for the
purposes of the Act. These include:
- in a case where the offence is being investigated by the AFP – if
it would be taken to be a State offence that has a federal aspect
under section 4AA of the Australian Federal Police Act 1979; and
- in a case where the offence is being investigated by the Australian
Crime Commission – if it would be taken to be a State offence that
has federal aspect under section 4A of the Australian Crime Commission
Act 2002; and
- in any other case – if it would be taken to be a State offence that
has a federal aspect if either of the sections referred to in (a)
and (b) were to apply.
Item 41 inserts new section 22A, which
outlines offences relating to State participants, and disclosures which
compromise security.
Item 41 also inserts new section 22B, in
which a person commits an offence if:
- the person discloses information; and
- the information may compromise the security of an individual; and
- the individual
- is a Commonwealth or a Territory participant, or is undergoing
assessment for inclusion in the NWPP as a Commonwealth participant
or a Territory participant; or
- is a State participant or is undergoing assessment for inclusion
in the NWPP as a State participant.
The penalty is imprisonment for 10 years.
Item 43 contains provisions to protect the identities
of AFP employees who administer the NWPP or have taken on an assumed identity
for the purposes of the NWPP from being disclosed in proceedings before
a court, tribunal, Royal Commission or any other commission of inquiry.
Similarly, item 45 specifies that the Commonwealth Ombudsman and
his staff are not required to divulge information that would reveal such
information about the identity of an AFP employee.
There has been little public comment about the proposed
amendments to the Witness Protection Act. In its submission to the Senate
Legal and Constitutional Affairs Committee’s inquiry into the Bill, the
Police Association of Victoria ‘positively noted’ the proposed amendments.
The Law Council of Australia noted that it did not have time to comment
on Schedule 4 of the Bill in the limited time available to make submissions
to the Senate Committee.
Schedule
5: Other Amendments
Part 1 contains
consequential amendments to the Crimes Act and Customs Act relating to
controlled operations.
Part 2 contains consequential amendments to the
ACC Act.
Part 3 clarifies that where a constable has seized
electronic equipment under a section 3E search warrant (and the warrant
has since expired) or under the arrest provisions in the Crimes Act, the
constable will be able to operate the electronic equipment to access data,
including data not held on the equipment at the time of seizure. For example,
currently when a constable seizes a mobile phone, and takes it off-site,
the officer is not able to access voicemail without executing a stored
communications warrant on the carrier under the Telecommunications
(Interception and Access) Act 1979. Now that access would be allowed.
It would also relate to email on computers. Similar amendments are made
to the Customs Act, POC Act and the MA Act (item 19, proposed section
3ZVA)
Schedule
6: Transitional Provisions
Part 1—‘Transitional
Provisions Relating To Controlled Operations’, item 1 provides
that controlled operations authorised before commencement continue under
the previous legislation.
Item 2 ensures that Division 3 of Part IAB of
the Crimes Act continues in effect.
Part 3 is a regulation making provision
that provides that the Governor-General may make regulations dealing with
matters of the transitional nature relating to amendments and repeals
made by the Bill.
In relation to delayed notification search warrants,
US courts have stated that ‘[t]he mere thought of strangers walking through
and visually examining the center of our privacy interests, our home,
arouses our passion for freedom as does nothing else.’(51)
Crime, even in the privacy of one’s own quarters, is,
of course, of grave concern to society, and the law allows such crime
to be reached on proper showing. The right of officers to thrust themselves
into a home is also a grave c | 
