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Chapter 3 - Key issues
3.1
The amendments contained in the Bill aim to harmonise Commonwealth and
state and territory laws in relation to controlled operations, search warrants,
assumed identities and witness protection. The committee sees merit in this endeavour.
Some of the benefits of achieving legal synchronicity were outlined by a
representative from the AFP at the committee's hearing:
The key operational benefits for the AFP from these proposed
amendments are: in the case of controlled operations, the inclusion of police
informants as participants in controlled operations who can be protected from
criminal responsibility and civil liability for conduct undertaken during the
course of a controlled operation. [I]n the case of assumed identities,
improving the arrangements between Australian jurisdictions for accessing
evidence of identity to establish assumed identities and clearly including
members of the Australian Federal Police National Witness Protection Program
within the scheme so that there is no doubt that they can use an assumed
identity to perform their functions; and, in the case of protection of witness
identity, the enhancement of the current approach to protect the identity of an
undercover operative who was or is using an assumed identity.[1]
3.2
In relation to delayed notification search warrants, the AFP
representative noted 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.[2]
3.3
While the features of the Bill outlined by the AFP display obvious
operational benefits, the Law Council of Australia urged circumspection when
dealing with some of the Bill's more invasive aspects:
Harmonisation of criminal law can be a very desirable thing to
try to achieve; there is no doubt about that. But harmonisation should not, in
our submission, be the sole objective for providing the Australian nation with
appropriate laws that deal with criminal matters, law enforcement matters and
the administration of justice generally. Harmonisation alone, without more, is
not a sufficient justification. There is a price to be paid if harmonisation
involves derogation from the traditional freedoms of the individual that we
cherish in our parliamentary democracy. Notwithstanding that ministers might
from time to time agree in ministerial meetings that they would like to
introduce a harmonised system of laws into the parliaments of Australia, that
does not place those proposals above proper examination and criticism.[3]
3.4
This chapter addresses key issues of concern to the committee.
Controlled Operations
3.5
One of the matters of concern to the committee was the proposed
amendment relating to the suspected criminal activity in relation to which a
controlled operation may be authorised. Currently, controlled operations may be
authorised in cases where the suspected offence attracts at least three years
imprisonment, and is of a nature described by the Crimes Act.[4]
The Bill removes this second criterion from consideration, leaving the simpler
test relating purely to the potential length of imprisonment should the offence
be proved. The removal of this second criterion elicited some support from
respondents, primarily on the grounds of the difficulties associated with
interpreting which specific offences are embraced by the list of activities
contained in the Crimes Act.[5]
3.6
The committee remains ambivalent about the use of the three year prison
term as the sole threshold for deciding on the 'seriousness' of an offence. The
committee noted a number of offences carrying a prison term of three years or
greater, the suspicion of which would arguably not justify consideration of a
controlled operation. For example, the committee notes that section 29 of the Crimes
Act, dealing with damage and destruction of Commonwealth property, carries a
maximum penalty of ten years imprisonment, which places it within the ambit of
the Bill. The Law Council of Australia shared the committee's concern, arguing
that the statutory limit should be set higher.[6]
However, the committee notes the view of the Commonwealth Ombudsman that the list
of offences is already so comprehensive that it would be rare for controlled
operations to be precluded by this requirement. Further, the Ombudsman noted
that an officer authorising a controlled operation must still be satisfied that
the nature and extent of the criminal activity justify the conduct of the
operation.[7]
3.7
The Bill also enables other offences to be added by way of regulation to
those which can be used to trigger an application for a controlled operation. This
was also of concern to the Law Council of Australia:
The Act specifies a minimum standard for Commonwealth
offences—punishable by three years—but the regulations are not limited in that
way at all. The regulations allow any other Commonwealth offence to be
promulgated as a complying Commonwealth offence for the purpose of controlled
operations. That really means that any Commonwealth offence is potentially
available for a controlled operation. We think that the regulation-making power
has to be at least limited in the same way as the Act purports to limit those
matters prescribed by the Act.[8]
3.8
Given the inclusion of all offences which carry a penalty of three or
more years imprisonment, it can only be assumed that the regulation-making
power is included for the purpose of enabling controlled operations on the
suspicion of less serious offences.
3.9
Mr Webb of the Law Council of Australia also reminded the committee that
this is not the first time these powers have been requested:
If one looks at the first of those matters, the range of
offences for which controlled operations may be authorised, one can see that
there is a history here, in that when the original framework for controlled
operations was introduced in 1996 the operations were limited in their
application to certain drug importation offences. In 2001 an amendment was
sought to extend their operation to any Commonwealth offence. That proposal met
with considerable opposition. On the basis of a recommendation from this
committee, the provision was reframed. When the bill was finally passed, it
provided something less than that which had been sought at the time. What we
have now is a regeneration of that request by the executive to effectively
allow virtually any Commonwealth offence to be the subject of a controlled
operation.[9]
3.10
The committee also notes that, while a three month term is set for
controlled operations, the Bill allows for extensions of that term ad
infinitum. The committee questions the necessity of such an open-ended
arrangement. At present, operations may run for a maximum of six months, and
after three months only with the endorsement of the Administrative Appeals
Tribunal (AAT). On the development of the Bill, and the role of the AAT, an
officer from the Attorney-General's Department submitted that:
[I]n large part we are keeping what we have now, but it was
considered that members of the AAT are not best placed to form judgements about
the appropriateness of the continuation of an operation, that it was not adding
value to the stronger accountability mechanisms that exist through the Ombudsman
and reporting; therefore, rather than complicate the scheme with that additional
element that was not substantively adding to the accountability value in the
mechanism, it is not there.[10]
3.11
Similarly, Federal Agent Lawler from the AFP stated that:
It was important to note that this particular process was not a
merits review function. Rather, the AAT member could only extend the duration
of the authorisation if they were reasonably satisfied that all of the criteria
required for the granting of an authority remained in existence—and, indeed,
not to the actual content and fact that supported the controlled operation in
the first instance. There are some who may argue that having it as an internal
process—actually reviewing whether the facts that make up the application in
the first instance still exist, which is best done by the issuing officer, the
chief officer—presents more accountability than what the current process has in
play. That was one of the reasons that underpinned that particular change
around the AAT officer.[11]
3.12
By contrast, Mr Webb from the Law Council of Australia considered that
the existing provisions for independent scrutiny of controlled operations
should be strengthened:
An officer in charge of an operation—not an authorising
officer—can empower specific persons, including law enforcement officers and
civilian informants, to engage in unlawful conduct, no matter how insignificant
a Commonwealth offence is involved. We say that the current authorisation
regime is inadequate as it is, and that a judge should authorise controlled
operations, which should be limited to serious offences.[12]
3.13
The committee sees much to commend in the oversight role to be played by
the Ombudsman in relation to controlled operations. However, once again the Law
Council of Australia made the point that there are limits to the effectiveness
of an oversight body which operates primarily in retrospect:
Our concern also is that the degree of information which is
provided to the Ombudsman before a controlled operation is completed is not
sufficient because it does not detail what actual unlawful conduct has taken
place. Looking at the Ombudsman's reports of controlled operations—because the
Ombudsman does currently have the power to review controlled operations—the
Ombudsman does not look into controlled operations which are continuing at the
moment because that is deemed inappropriate. That is all right when a
controlled operation can only be extended for six months but if it can be
extended indefinitely that creates a different problem.[13]
3.14
Mr Goodrick, representing the Ombudsman, agreed that the oversight
provided by the AAT was very different to that offered by the Ombudsman.
Nonetheless, he considered the arrangements contained in the Bill to be
satisfactory, and in some ways, an improvement on the status quo.
I think that one of the major changes that the bill has brought
about is the removal of real-time oversight by the AAT. When discussions first
began on this, some enhanced role for the Ombudsman was seen as somehow
replacing that. I am not sure we saw it quite like that, because real-time
oversight is always different from oversight after the event. Nevertheless,
with a proper set of powers and a fair bit of flexibility concerning the
reports that we might want to see, we do have the power to ask for further
information to be included in the reports. From our point of view, that is
pretty effective oversight. In fact, in the end it may be more effective
oversight than an AAT member ticking an application.[14]
3.15
The Ombudsman also drew the committee's attention to the fact that the
Minister may withhold information from being published in the annual report to
Parliament on the grounds of 'public interest'.[15]
3.16
The committee is not persuaded that a power to prescribe offences with a
maximum penalty of less than three years imprisonment, for the purposes of bringing
those offences within the ambit of controlled operations, can be justified.
While the committee accepts that controlled operations may need to extend
beyond three months, it would seem prudent to impose a limit on the number of
extensions which may be granted.
3.17
Finally, the committee does not agree with the contention that the
independent scrutiny of applications for extension is not valuable. The ability
for extensions to be granted through purely internal avenues, in contrast to
the current system of application to the AAT, seems an unnecessary diminution
of the transparency with which an enforcement tool as invasive as controlled
operations should be administered.
Recommendation 1
3.18
The committee recommends 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.
Recommendation 2
3.19
The committee recommends 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.
Recommendation 3
3.20
The committee recommends that the Bill be amended to impose an absolute
limit of 12 months on each authorised controlled operation.
Recommendation 4
3.21
The committee recommends 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.
Witness Identity Protection
3.22
This part of the Bill aims to protect the true identity of covert
operatives who give evidence in court. The provisions include protection for law
enforcement, security and intelligence officers and other authorised people (including
foreign law enforcement officers and civilians authorised to participate in
controlled operations) who are granted an assumed identity.
3.23
As reported in Chapter 2, the decision to issue a witness protection
certificate is not appealable.[16]
While the court will have the power to give leave or make an order which leads
to the disclosure of the operative's true identity, it will not be required to 'balance'
the competing public interests in a fair and open trial against the protection
of the identity of a witness. The court may only make such an order if it is
satisfied that the evidence in question would substantially call into question
the operative's credibility, and it would be impractical to test that
credibility without disclosing the details of the operative's identity. It must
also be in the interests of justice for the operative's credibility to be
tested.
3.24
In relation to these provisions, the Law Council of Australia stated
that:
The assumed identity provisions will deny courts any role in
evaluating whether there is a need to protect the true identity of witnesses
and in balancing that need against other competing interests, like the interests
of justice. The law enforcement agencies are to be granted extraordinary and
unsupervised powers on the assumption that superficial, periodic reporting
requirements offer sufficient safeguard against corruption and misuse.[17]
3.25
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.
3.26
The committee notes that, under proposed section 15KP, a presiding
officer may require that he or she be confidentially informed of the true
identity of the witness. While this can be justified on the grounds of ensuring
the presiding officer has no potential bias that could prejudice the
proceedings, the committee notes that no provision exists to protect any
documentation that might be provided to the presiding officer in the course of
providing the identity to him or her. Such documentation could find its way,
unprotected, into the court's records and be accessed by a range of other
people. The committee considers this could be rectified through a simple
amendment preventing the presiding officer from recording, copying or retaining
any information or photographic evidence of the identity of the witness.[18]
3.27
The committee also takes the opportunity to note what it considers a significant
error in the EM 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 EM reports that an offence will be committed if the conduct results 'or is
likely to result' in disclosure of the identity. 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 EM. 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
EM, in relation to the possible use of force by personnel other than police
officers.[19]
If committees are to be directed to the EM, they should be able to rely on its
accuracy.
Recommendation 5
3.28
The committee recommends 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.
Schedule 2 – Delayed notification search warrants
3.29
The Deputy Commissioner of the Australian Federal Police spelt out for
the committee the need for delayed notification search warrants by describing
the difficulties associated with traditional warrants:
A limitation with the existing search warrant regime is that the
execution of a search warrant involves notifying the occupant of the premises.
This immediately notifies known suspects, and subsequently their associates, of
law enforcement interest in their activities. It then allows associates unknown
to the police to destroy or relocate evidence or activities to other premises
not known to police. It often prevents the full criminality of all those
involved being known.[20]
3.30
The threshold test of 'seriousness' for delayed notification warrants is
different to that for controlled operations, and in general requires suspicion
of a very serious offence prior to application for a warrant. The Ombudsman, in
both its written and verbal submissions, expressed the view that provision
should be made for delayed notification warrants on suspicion of only the most
serious of offences:
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 be added to the list and it is hoped
that any additions will be limited only to the most serious criminal conduct.[21]
3.31
The committee agrees with the Ombudsman that suspicion of only the most
serious offences should be able to be used as the basis for an application for
a delayed notification search warrant.
3.32
The committee notes the submission made by the New South Wales
Government, comparing the delayed warrant regime in place in that jurisdiction
to the arrangements proposed by the Bill. The submission makes the point that
the primary distinction between the schemes is the range of offences to which
each applies: delayed notification warrants in the New South Wales jurisdiction
have, as their exclusive focus, prevention and response to terrorist acts.[22]
3.33
Similarly, the delayed notification search warrant schemes in Victoria
and the Northern Territory are limited to circumstances in which 'a terrorist
act has been, is being, or is likely to be committed'.[23]
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.[24]
3.34
While an officer from the Attorney-General's Department noted that the
search warrant provisions were not designed to 'fit into a framework of
identical laws' as is the case with some other provisions in the Bill, the
committee considers that delayed notification search warrants should be
utilised only in relation to the most serious offences as is the case under the
state and territory schemes.
3.35
Provisions relating to impersonation by an officer of another person
also drew the attention of the committee. Paragraph 3SL(1)(b) proposes to allow
an executing officer and assisting constable to impersonate another person for
the purposes of executing the warrant. In order to carry out an impersonation,
officers would likely need to follow many of the steps already provided for in
Schedule 1 relating to assumed identities, such as acquiring false
documentation. It is not clear whether the power to impersonate in paragraph
3SL(1)(b) separately authorises such steps.
3.36
The specific provisions in Schedule 1 relating to assumed identities are
comprehensive, and the committee can see no reason why such a broadly-framed
power to impersonate is required in Schedule 2, unaccompanied as it is by the
checks and balances contained in Schedule 1. The committee considers that
paragraph 3SL(1)(b) should be deleted so that an executing officer wishing to
impersonate someone in the course of executing the warrant will be required to
make separate application for an assumed identity under the provisions
contained in Schedule 1.
3.37
Finally, the committee draws attention to a practical point made by the
Ombudsman in relation to reporting requirements.[25]
Whereas, in relation to delayed notification search warrants, the Ombudsman is
required to report to the Minister six-monthly on his inspection of relevant
records, inspections of agency files are required only at least every twelve months.[26]
The Ombudsman suggests that reports to the Minister be made annually, which
would make the requirement consistent with that for controlled operations and
allow for the report to be integrated into the agency's annual report. While the
committee recognises the benefit of aligning the dates of various reports, the
invasiveness of the proposed regime leads the committee to recommend that
inspections be conducted at least every six months, and that report be made to
the Minister at the same interval.
Recommendation 6
3.38
The committee recommends 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.
Recommendation 7
3.39
The committee recommends 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.
Recommendation 8
3.40
The committee recommends 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.
Schedule 3 – Amendment of the Australian Crime Commission Act
3.41
It was during discussion and a detailed comparative analysis of the 'use
of force' provisions contained in Schedules 2 and 3 that the committee
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.[27]
3.42
The committee raised this matter with representatives from the Attorney-General's
Department. In its response to the committee's questions, representatives of
the department assured the committee that:
The amendments to the Australian Crime Commission Act 2002
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.
The Bill is being examined to assess whether there is any
uncertainty regarding this issue and whether amendments to the Bill are
required to clarify this intention.[28]
3.43
The committee considers that amendments are necessary to bring the ACC
provisions in line with those in the Crimes Act, and looks forward to examining
the detail of those amendments in due course.
3.44
Another matter which is of concern to the committee, in relation to the
amendments contained in Schedule 3, are the provisions which restrict access by
a person giving evidence to a legal practitioner. Proposed section 25B provides
that an examiner may refuse to permit a particular legal practitioner to
represent a person giving evidence, and that in such case, the examiner has a
discretion as to whether to adjourn proceedings to allow the person to retain
another lawyer.
3.45
An officer from the Attorney-General's Department put forward the
rationale of the provision this way:
I believe that the purpose of the provision in framing it as a
discretion is to prevent a person from frustrating an examination through
either the delay in the appearance of another legal practitioner or perhaps
having a number of practitioners whose presence might in fact undermine the
ability to conduct the examination. That is the reason that it has been framed
as a discretion.[29]
3.46
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.[30]
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.
Recommendation 9
3.47
The committee recommends that the definition of 'executing officer' in
Schedule 3 be confined to sworn federal, state or territory police officers.
Recommendation 10
3.48
The committee recommends 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.
Recommendation 11
3.49
Subject to the preceding recommendations, the committee recommends that
the Senate pass the Bill.
Senator Marise Payne
Chair
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