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Chapter 1
The Development of Controlled Operations Procedures in Australian Law
Enforcement
What is a controlled operation?
1.1 The NCA describes a controlled operation as 'an investigative method
in which a law enforcement agency becomes involved in specific illegal
activity, involving the participation of an informant, agent or an undercover
police officer'. The objectives of controlled operations are usually to
enable offenders and their associates to be identified, evidence to be
obtained, prosecutions subsequently brought and the criminal activity
to be frustrated. [1] Controlled operations are a well used tool in law
enforcement:
Everyone is aware that undercover agents (also known as covert police
operatives) frequently make controlled purchases of drugs
from persons engaged in unlawful drug-related activity. Law enforcement
agencies the world over have long used such investigative techniques
as a means of obtaining evidence of criminal offences. [2]
1.2 In legislative terms, various definitions have been adopted in those
jurisdictions in Australia that have introduced controlled operations
legislation. The significance of those definitions is that they limit
to differing degrees the scope for the authorisation of controlled operations.
The broadest definition is that contained in New South Wales legislation
where the relevant definitions combine to provide that a controlled operation
is:
an operation conducted for the purpose of obtaining evidence
of criminal activity or corrupt conduct, arresting any persons involved
in such activity or conduct or frustrating such activity or conduct,
which involves or may involve that which, but for the instant Act, would
be unlawful. [3]
South Australia also has a broad-based definition, linking controlled
operations to the investigation of serious criminal activity. [4]
1.3 Unlike its NSW and SA counterparts, the definition in the relevant
Commonwealth legislation is narrow. The definition is contained in section
15H of the Crimes Amendment (Controlled Operations) Act 1996 which
inserted a new part 1AB into the Crimes Act 1914. Under section
15H, the concept of a controlled operation is tied to the commission of
offences against section 233B of the Customs Act 1901. This means
that controlled operations can only be authorised in relation to the investigation
of offences involving the importation of narcotics. The other two elements
of the definition are that the operation must involve law enforcement
officers and may involve a law enforcement officer engaging in conduct
that would, but for the Act, constitute a narcotic goods offence. [5]
1.4 Covert operations have been a legitimate and common policing method
in relation to the investigation of a wide range of offences. Historically,
however, such operations were conducted in the absence of any legislative
approval. Two important consequences flowed from that. Firstly, the evidence
obtained as a result of those operations was subject to the legal concept
of the exercise of judicial discretion to exclude evidence on the grounds
of public interest at any subsequent trial. [6]
Secondly, the operatives themselves had to rely on the favourable exercise
of prosecutorial discretion so that they were not charged with any criminal
offences arising from their work.
1.5 The development of controlled operations legislation marked a new
era for law enforcement. It introduced a system of legislative recognition
and approval for such work. The regime in Part 1AB of the Crimes Act
1914, however, only gives legislative recognition to a specific portion
of this undercover work. One of the critical tasks for the Committee was
to examine the extent to which this limited legislative recognition is
still appropriate.
The significance of controlled operations in law enforcement
The investigation of organised crime
1.6 Organised crime is becoming increasingly sophisticated, globalised
and well resourced. Consequently, law enforcement has to move from its
traditionally reactive approach to investigating crime to a more proactive
one. The view is widely held by law enforcement agencies that controlled
operations are integral to the effective investigation of major criminal
activity. The Queensland Crime Commissioner, Mr Tim Carmody told the Committee
that:
Covert investigative techniques are often the most efficient, effective
and, in the case of the more virulent strains of criminality such as
organised and major drug related crime, the only practical way of obtaining
evidence for the purposes of prosecuting and convicting those responsible.
Sometimes the only viable investigative stratagem will necessarily involve
trickery, deceit, subterfuge and even official instigation and inducement
of crime. In those cases, an unrealistically strict requirement of observance
of the criminal law hinders the law enforcement effort. [7]
1.7 In terms of uncovering drug related crime and collecting evidence,
it is necessary for law enforcement agencies to infiltrate the 'classic
secret organisations' [8] behind the criminality in order to gather the necessary
intelligence about their activities. Infiltration can only be achieved
by putting covert operatives into situations where they can obtain the
intelligence that will enable the investigating agencies to devise appropriate
strategems and directions. Consequently, the agencies involved argue strongly
that controlled operations regimes are a necessary function of contemporary
law enforcement. [9] Without in any sense derogating
from the seriousness of the matter, Mr Carmody likened it to a game of
rugby:
We are trying to understand who the people are, who is operating this
business, who is connected with it, who are the lower players and who
are the higher players. You cannot do that unless you are in the team.
It is like a game of football. Everyone can see what the five-eighth
is doing because he is out there on his own. But no-one knows what the
second rower is doing in the scrum. What we want to do is get in that
scrum so that we can see what is happening, who is doing what and where
the networks are, who the personnel are. We can build a picture then,
not only of specific criminal activity but of how it works overall across
the states and across the country, where they are connected, across
borders. [10]
1.8 It was the collective view of all the law enforcement agencies participating
in the inquiry that law enforcement cannot have a significant impact on
organised crime unless it becomes immersed in what the criminal organisations
are doing. [11]
1.9 Organised criminal groups, such as those involved in the importation
and trafficking of narcotics, are, however, extremely difficult to penetrate.
[12] The investigation of this type of consensual
crime differs from other crime in that there are no victims in the usual
sense who are available to make a complaint and give evidence of the criminal
activity. [13] Law enforcement is at a disadvantage
because the 'victims' of drug crime are usually unwilling to assist authorities
for fear of prosecution themselves. In addition, many 'victims' of drug
crimes do not recognise that they are victims. [14] In the second reading speech for the Crimes
Amendment (Controlled Operations) Bill 1995, drug crime was described
as a 'clandestine criminal activity involving complicity, or participants
who will remain silent for fear of retribution'. The rationale behind
the Bill was that, properly regulated, 'controlled operations may lead
to the detection of principals whose activities might otherwise never
be discovered, let alone prosecuted.' [15]
1.10 The Committee acknowledges the efforts of law enforcement agencies
to detect and prosecute those responsible for organised crime, particularly
drug trafficking, and believes that there is also widespread community
acceptance that covert operations are crucial to combat such criminal
activity.
International acceptance
1.11 There is a high level of international acceptance of the use of
controlled operations to combat the growing drug trade. As recently as
June 1998, the United Nations Twentieth Special Session on the World Drug
Problem recommended:
that States, if permitted by the basic principles of their respective
domestic legal systems, ensure that their legislation, procedures and
practices allow for the use of the technique of controlled delivery
at both the domestic and international levels, subject to agreements,
arrangements and understandings mutually consented to between States.
[16]
1.12 The use of such techniques is similarly reflected in article 11(1)
of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances that came into effect in Australia in 1993. It reads:
1. If permitted by the basic principles of their respective domestic
legal systems, the parties shall take the necessary measures, within
their possibilities, to allow for the appropriate use of controlled
deliveries at the international level, on the basis of agreements or
arrangements mutually consented to, with a view to identifying persons
involved in offences established in accordance with article 3,
paragraph 1, and to taking legal action against them. [17]
Judicial approval
1.13 In Ridgeway v The Queen, the case that prompted the Commonwealth
to introduce the Crimes Amendment (Controlled Operations) Act 1996,
the High Court acknowledged that police methodology sometimes necessarily
involves law enforcement officers in deception:
The effective investigation by police of some types of criminal activity
may necessarily involve subterfuge, deceit and the intentional creation
of the opportunity for the commission by a suspect of a criminal offence.
[18]
1.14 This case is discussed in detail below at paragraphs 1.28-1.32.
Suffice it to say that although the High Court acknowledged that these
types of investigative methods are required in relation to certain criminal
activities, on the matter before it the High Court exercised its discretion
to exclude the evidence on public policy grounds in favour of the defence.
[19]
Investigation of other crime: money laundering and the financial
environment
1.15 Although this method of law enforcement is usually associated with
the investigation of narcotic offences, there is widespread support for
the use of covert operations to investigate other crime. AUSTRAC referred
to the Financial Action Task Force on Money Laundering [20]
which recommended that:
36. Co-operative investigations among countries' appropriate competent
authorities should be encouraged. One valid and effective investigative
technique in this respect is controlled delivery related to assets known
or suspected to be the proceeds of crime. Countries are encouraged to
support this technique, where possible. [21]
1.16 The relevant interpretative note encourages the use of the controlled
delivery technique to assist particular criminal investigations, including
money laundering. It asserts that appropriate steps should be taken to
ensure no obstacles exist in legal systems to prevent controlled deliveries,
subject to any legal requisites, including judicial authorisation for
the conduct of such operations. [22]
1.17 Ms Elizabeth Montano, Director of AUSTRAC, told the Committee that
in the international money laundering community, controlled deliveries
are considered a very useful tool and that there are a number of scenarios
in which the controlled delivery technique could be used in the financial
environment. [23]
The extent and the manner of the NCA's involvement in controlled operations
1.18 On both national and international levels, the NCA plays a pivotal
role in the investigation of organised crime and drug trafficking. It
operates from a national perspective across jurisdictions and coordinates
the national effort with state based partner agencies like the Queensland
Crime Commission, the NSW Crime Commission, State based Police Services
throughout Australia and the Australian Federal Police. [24]
The NCA's work is typically 'multi-jurisdictional and international'.
[25] An investigation may involve an exchange of intelligence
or the coordination of an investigation between the NCA and a Hong Kong
agency, the AFP, the ACS and various police services in Australia at any
one time. [26]
1.19 The NCA relies heavily on its ability to conduct controlled operations
as a means of infiltrating major organisers of tightly knit criminal syndicates.
The NCA's investigative work over recent years has resulted in the infiltration
of the higher echelons of some significant organisations. The intelligence
gained in controlled operations has enabled the NCA to frustrate criminal
activity at the planning stage and so reduce the level of narcotics that
reach the street. [27]
1.20 The Third Annual Report on the operation of Part 1AB of the Crimes
Act 1914 was tabled on 12 October 1999. Four certificates were issued
by the NCA for the year 1998-99, and three of those operations were carried
out. [28]
1.21 During 1997-98, 21 certificates for controlled operations were issued
by the Chairperson or a Member of the NCA. [29]
This contrasts to the preceding year when only nine certificates were
issued by the NCA. [30] The 21 certificates
in 1997-98 related to six separate investigations; multiple certificates
were issued in respect of four of those investigations. The Annual Report
indicates that in four cases, the controlled operation was not carried
out but persons were nonetheless arrested and charged with criminal offences.
In the fifth case, the operation was not carried out and the certificate
was surrendered. In the sixth case, the controlled operation did proceed.
It involved an importation of heroin in a compressed powder form with
a total bulk weight of 298.91 grams and with a heroin content of about
228.4 grams. The following description of the operation, detailing the
route through which the narcotic goods passed, appears in the Annual Report:
The parcel containing the mah-jong set was delivered to the Australian
Federal Police (AFP) in Sydney by the ACS. The AFP then handed it to
a member of the South Australia Police (who was also a member of the
National Crime Authority) who brought it to Adelaide by plane. Upon
arrival in Adelaide, that officer gave the parcel to another member
of the South Australia police. That officer delivered it to 20 Arthur
Street Pennington, where Mr Duc Ngoc Nguyen took delivery of the parcel.
The police searched the premises a short time later and seized the parcel
which was unopened. Mr Duc Ngoc Nguyen was then arrested and charged
with possessing a prohibited import, contrary to section 233B of the
Customs Act 1901. [31]
1.22 The NCA's involvement in joint operations under the controlled operations
legislation in the states is also recorded:
Law Enforcement (Controlled Operations) Act 1997 (NSW): 26 certificates
(and one variation) issued for joint operations between the NCA and
the NSWCC in period 1998 to May 1999;
Criminal Law (Undercover Operations) Act 1995 (SA): 7 approvals
issued for NCA operations from commencement of Act until May 1999;
Drugs, Poisons and Controlled Operations Act 1981 (Vic): 56
authorities issued for NCA operations between November 1997 and April
1999.
In addition, the NCA is party to many controlled operations that are
the responsibility of other agencies. [32]
1.23 The NCA's involvement in controlled operations under the legislation
is typically of three kinds:
- controlled deliveries, that is, forbearing during the importation
or delivery of narcotics; [33]
- controlled purchases, that is purchasing/sampling drugs to infiltrate
drug syndicates; and
- possessing narcotics during a controlled operation or controlled purchase.
1.24 In addition, controlled operations are often used in conjunction
with other surveillance tools such as listening devices and telephone
interception:
Information gathered during a controlled operation permits the strategic
deployment of listening devices and the use of telephone interception
at critical stages in the planning and execution of criminal activity.
The combination of controlled operations and the strategic use of surveillance
devices has resulted in significant arrests. The weight and cogency
of prosecution evidence encourages guilty pleas. [34]
1.25 In assessing the importance of controlled operations to the NCA's
investigative capability, it was claimed such operations are an essential
weapon if the NCA is to cooperate in the international response to organised
crime and to fulfil its functions as provided under the National Crime
Authority Act 1984. The Committee was warned that the ability of the
NCA to effectively investigate organised crime would be severely diminished
if it were denied the authority to conduct covert operations. [35]
The development of controlled operations legislation
1.26 Although covert or controlled operations are a longstanding method
of law enforcement, legislation specifically addressing their use was
not introduced until 1996. Until that point, law enforcement agencies
conducted covert operations knowing they had to rely on the favourable
exercise of prosecutorial discretion to save them from the possible legal
consequences of their technically unlawful activities. Although covert
police operatives could have been charged with criminal offences in respect
of their work this rarely, if ever, happened. In addition, the admissibility
of evidence gathered during the course of such an operation was always
in question, the prosecution having to rely on judicial discretion in
the event that the evidence was challenged.
1.27 This was the state of affairs until the Ridgeway case which
prompted the development of controlled operations legislation.
Case history: Ridgeway v The Queen
The facts
1.28 The facts in the Ridgeway case are important because they demonstrate
the rationale behind the Bill [36] that inserted Part 1AB into the Crimes Act
1914. Ridgeway and Lee served sentences at the same time for drug
related offences in a South Australian Prison during 1985 to 1987. Following
his release, Lee became a registered informer for the Royal Malaysian
Police. In 1989 Ridgeway contacted Lee and arranged a purchase of heroin
for importation into and sale within Australia. The AFP and the Malaysian
Police arranged a controlled importation and delivery of heroin to Australia
using Lee, for the purpose of apprehending Ridgeway. In the course of
the operation, the AFP sought and received an exemption from detailed
Customs scrutiny under the relevant Ministerial Agreement. Subsequently,
Ridgeway was apprehended by the AFP with 203 grams of pure heroin in his
possession. Ridgeway was convicted in the South Australian District Court.
His appeal to the Full Court of the Supreme Court was dismissed. Ridgeway
obtained special leave to appeal to the High Court of Australia on three
grounds: a defence of entrapment; abuse of process; and the public policy
discretion to exclude evidence that has been obtained illegally.
1.29 It was common ground throughout the proceedings that the AFP had
imported heroin contrary to section 233B(1)(b) of the Customs Act 1904
which, as stated above, essentially provides that any person who imports
into Australia any prohibited exports shall be guilty of an offence.
The decision
1.30 The High Court, by majority, allowed the appeal and granted a permanent
stay of proceedings in favour of Ridgeway in relation to any proceedings
under section 233B of the Customs Act. The majority decision was
that the importation of the heroin by law enforcement officers was illegal
and therefore the evidence of that importation of heroin should have been
excluded on the grounds of public policy. Had it been properly excluded
during the trial, the prosecution would have been unable to prove a necessary
element of the offence and Ridgeway would not have been convicted. Mason
CJ, Deane and Dawson JJ were of the view that:
In these circumstances, the above-mentioned factors ie 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. Against those
considerations, one must weigh the legitimate public interest in the
conviction and punishment of the appellant for the criminal offence
of which he is guilty. The weight of that consideration in the present
case is reduced by the fact that the appellant's possession of the heroin
at the time he was apprehended constituted any one of a variety of offences
against the law of South Australia of which illegal importation was
not an element
. [37]
1.31 The court concluded that the considerations of public policy favouring
the exclusion of evidence of the illegal importation of the heroin clearly
outweighed the considerations of public policy favouring the conviction
of the appellant of an offence under section 233B(1) of the Customs
Act 1904.
1.32 In the course of their judgement, however, the justices said that
the problems relating to the conduct of controlled operations should be
addressed by the Legislature not the courts:
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 provisions of the criminal
law, a legislative regime should be introduced exempting them from those
requirements. [38]
The Commonwealth's legislative response to the Ridgeway case
1.33 In response to the Ridgeway case, the Parliament enacted the Crimes
Amendment (Controlled Operations) Act 1996, inserting Part 1AB in
the Crimes Act 1914. That amending Act introduced a legislative
scheme to provide for the conduct of controlled operations by Australian
law enforcement agencies. The legislation is narrow in scope, only regulating
controlled operations in the course of investigating offences under section
233 of the Customs Act 1901 or an associated offence. The legislation
has no effect in cases where, for example, the NCA or other Federal law
enforcement agency is investigating narcotic offences where importation
is not an element of the offence.
Legislative scheme of Part 1AB of the Crimes Act 1914
1.34 A controlled operation is defined as an operation involving law
enforcement officers that is carried out to obtain evidence in relation
to possible prosecutions under section 233B of the Customs Act 1901
or an associated offence and may involve a law enforcement officer
engaging in conduct that would, apart from subsection 15I(1) or (3), constitute
a narcotic goods offence.
1.35 The authorisation process is as follows: An officer of the AFP,
NCA, ACS or of a State or Territory police force in charge of a controlled
operation may apply to either the Commissioner, Deputy Commissioner or
Assistant Commissioner of the AFP or a member of the NCA (including the
Chairperson) for a certificate authorising a controlled operation. If
issued, the certificate has the effect of exempting the law enforcement
officers from criminal liability in respect of any narcotic goods offences
for which they might otherwise be liable. The exemption may extend to
a member of a foreign police force but not to any civilians. The exemption
from criminal liability does not apply if the conduct of the law enforcement
officer involves entrapment (ie where the person was intentionally incited
by the law enforcement officer to commit the offence, rather than voluntarily
and with the necessary intent).
1.36 Section 15I(6) states that the exemption from criminal liability
does not affect the criminality of the importation of narcotic goods under
section 233B and does not exonerate the targets of the operation who may
have conspired to import the narcotics.
1.37 Section 15M sets out the preconditions to the issuance of a certificate.
The authorising officer must be satisfied that all available information
about the nature and quantity of the narcotic goods has been provided;
that, irrespective of the operation, the target is likely to commit an
offence against section 233B (or an associated offence); that the operation
will make it easier to obtain evidence of the offence; and that, after
the operation, any narcotic goods in Australia will be in the control
of an Australian law enforcement officer.
1.38 A certificate has effect for a maximum of thirty days only. Urgent
applications may be made in person or by telephone or any other available
means of communication but certificates cannot be issued retrospectively.
The only retrospective operation of the scheme was to initially validate
those controlled operations involving the importation of narcotic goods
into Australia prior to the commencement of the Act for which prosecutions
were still pending. In such cases, when determining the admissibility
of evidence, the judge is to disregard the fact that law enforcement officers
committed an offence relating to the importation if the officer was involved
in a controlled operation for which there were administrative arrangements
in place between the AFP and the ACS.
1.39 The scheme incorporates specific accountability mechanisms. The
Attorney-General must be informed as soon as practicable after any decision
in relation to an application and the reasons for the decision. A further
report must be made to the Attorney-General detailing certain matters
three months after the conclusion of the operation. The Attorney-General
must table an annual report relating to the controlled operations conducted
the previous year. [39]
Some preliminary observations
1.40 Compared to the legislative regime in New South Wales (discussed
in detail below), the scheme in Part 1AB of the Crimes Act 1914
has been described as unnecessarily narrow and prescriptive by law enforcement
agencies. Some of the views expressed include that the legislation is
of limited application because the definition of controlled operation
is so narrow that it does not assist the investigations of Federal law
enforcement agencies into other narcotic offences not involving the importation
of narcotics or their non-drug related work generally. Further, it has
been pointed out that the legislation offers no protection to civilians/informers
who assist law enforcement officers or participate in controlled operations.
There is no provision for the retrospective authorisation of controlled
operations and no provision for the renewal of certificates where
operations exceed the thirty day period.
Review of Part 1AB of the Crimes Act
1.41 In 1998, the Attorney-General's Department conducted a review of
the operation of Part 1AB of the Crimes Act 1914. The review was
undertaken as part of a series of proposals aimed at enhancing Commonwealth
drug law enforcement in the National Illicit Drugs Strategy. Although
a large number of agencies, organisations and individuals were consulted,
the Department only received ten submissions that contained substantive
proposals for reform with law enforcement agencies arguing that their
powers are too narrowly confined under the Act. Although a report is not
publicly available in respect of that review, the Attorney-General's Department
has advised the Committee that:
The Government has decided, as a matter of high priority, that improved
controlled operations provisions should be developed. The amendments
will form part of the Government's strategy to enhance the effectiveness
of drug law enforcement. The Government has also decided to pursue increased
consistency in law enforcement legislation and practice as between the
Commonwealth, States and Territories. [40]
1.42 The Attorney-General's Department identified cross-jurisdictional
operational problems arising from the lack of uniformity in legislation
governing controlled operations throughout Australian jurisdictions. The
Department submitted that these could be alleviated either by the introduction
of nationally, uniform legislation or a combination of legislative initiatives.
First, those States and Territories without controlled operations legislation
could enact provisions to permit the authorisation and conduct of NCA
controlled operations in each jurisdiction. Secondly, State and Territory
legislation could be amended so that the NCA can authorise its own operations
in each jurisdiction. Thirdly, Part 1AB could be amended so that controlled
operations are not confined to the investigation of specified narcotics
offences.
1.43 The Attorney-General's Department noted some of the proposals for
reform. These included:
- Expanding the categories of offences the investigation of which could
attract the immunity available under an authorised controlled operation;
- Enabling private persons engaged in controlled operations to have
the same immunity enjoyed by law enforcement officers;
- Extending the time for which a controlled operation certificate can
remain in force;
- Ensuring that all amendments preserve consistency between the AFP
and the NCA and take account of the context in which the AFP operates.
[41]
States and Territories legislation
1.44 Like the Commonwealth, NSW and SA have enacted controlled operations
legislation in recognition of, amongst other things, the problems associated
with controlled operations highlighted in the Ridgeway case. Those States
and Territories that have not introduced specific controlled operations
legislation continue to rely on judicial and prosecutorial discretion
which, as demonstrated in Ridgeway, contains an element of uncertainty.
New South Wales
1.45 The Law Enforcement (Controlled Operations) Act 1997 (NSW)
is considered the most comprehensive legislative regime in Australia
and has been held up as the model for uniform legislation. [42]
The salient points of the regime are:
- An officer of the NSW Police Service, the Independent Commission Against
Corruption (ICAC), NSW Crime Commission or the Police Integrity Commission
may apply to their Chief Executive Officer for authority to conduct
a controlled operation. [43] A 'controlled operation' is broadly defined
as an operation conducted for the purpose of obtaining evidence of criminal
activity or corrupt conduct, arresting any persons involved in such
activity or conduct or frustrating such activity or conduct, which involves
or may involve activity that, but for the instant Act, would be unlawful.
Authorities may not be issued unless a code of conduct has been prescribed
by regulation for that agency;
- To justify issuing an authority, the chief executive officer must
be satisfied, amongst other things, that there are reasonable grounds
to suspect criminal or corrupt conduct within the administrative responsibility
of the agency. In addition, the nature and extent of the criminal or
corrupt conduct must justify the controlled operation and the nature
and extent of the controlled activities must be appropriate to the suspected
conduct and can be accounted for in detail under the reporting requirements
of the Act. The CEO must also have regard to the reliability of information,
the nature and extent of the suspected criminal activity or corrupt
conduct and the duration and likely success of the proposed controlled
operation;
- An authority may not be issued where a participant would be induced
to engage in criminal activity or conduct that the participant would
not otherwise engage in or where the health or safety of a person would
be endangered or cause serious loss or damage to property. Civilians
can only be used in certain controlled operations, for example, where
it is wholly impracticable for a law enforcement officer to do so;
- An authority must bear certain particulars including the persons so
engaged, the nature of controlled activities that civilians and officers
may engage in and the period for which the authority is to remain in
force. Authorities may also be renewed;
- the Act provides that an authorised activity undertaken in accordance
with the authority is not unlawful and does not constitute an offence
or corrupt conduct. The Act makes provision for retrospective authorisation
of unlawful activity undertaken in life threatening situations but no
retrospective authority is available in respect of an offence of murder
or any offence for which the common law defence of duress would not
be available;
- an authority may remain in force for up to three months;
- the Act declares certain activities with respect to assumed names
to be lawful and excludes any civil liability on the part of those involved
in an authorised operation in respect of conduct engaged in for the
purposes of an authorised operation and undertaken in good faith;
- the Act confers a reviewing function on the NSW ombudsman so that
the ombudsman is notified of the grant, variation or renewal of authorities
and must inspect the records at least annually and furnish a report
to Parliament; and
- the Act provides that where the identity of a participant in a controlled
operation is in issue before, for example, a court or Royal Commission,
unless justice requires otherwise, the relevant part of the proceedings
must be held in private and the identity of the participant suppressed.
1.46 The NSW Police, ICAC, the NSW Crime Commission and the Police Integrity
Commission agreed on a code of conduct for which provision was made in
the NSW Law Enforcement (Controlled Operations) Regulation 1998.
The significant provisions include that the applicant for an authority
must act in good faith and make full disclosure and that participants
in controlled operations must act in good faith. Further, the officer
responsible for the controlled operation must ensure that all participants
have a full understanding of the operation and obtain written undertakings
from any civilian participants about the extent of their involvement.
Review of the NSW Act
1.47 Earlier this year, the Hon Mervyn Finlay QC, Inspector of the Police
Integrity Commission, reviewed the Law Enforcement (Controlled Operations)
Act 1997 (NSW). The report states that the parties with an apparent
interest were involved in the process throughout the review. Those parties
were listed as the NSW Police Service, ICAC, the NSW Crime Commission,
the Police Integrity Commission, the Ombudsman, the AFP, the NCA and the
NSW Attorney-General's Department. Although it had been expected that
500 controlled operations would be conducted in the first year of the
Act's operation, in fact the number was far less. The distribution of
controlled operations authorities granted to law enforcement agencies
was as follows: the NSW Police Service, 123; the NSW Crime Commission,
23; ICAC, 2; and the Police Integrity Commission, 11. Reasons advanced
for the low use of the Act included that:
- the paperwork required to obtain an approval is 'daunting';
- the time taken to obtain an approval is too long;
- an inability to nominate undercover staff as required due to lack
of staff;
- the high level of senior officer authority required to authorise an
operation;
- concerns about the legality of such operations and authorisations;
and
- an unnecessarily restrictive interpretation of the Act. [44]
1.48 The review concluded that there is a need to amend the Act to enable
the objectives of the Act to be achieved and to enable law enforcement
agencies to use its provisions more effectively. Radical amendment was
rejected in favour of an incremental approach, recommending amendment
of the existing terms of the Act. Recommendations included:
- amendment of the Act to include the capacity to prescribe by regulation
the NCA, the AFP and the ACS as law enforcement agencies thereby enabling
those agencies to use the Act;
- amendment of the Act to permit delegation of the CEO's function of
approving applications for a controlled operation to another high ranking
officer, and, in the case of the NSW Police Service, to permit delegation
to four other officers; [45]
- extending the time frame for which an authority to conduct a controlled
operation may remain in force to 6 months; [46]
- permit CEO's to authorise controlled operations by telephone [47]
or other means where an urgent response to information or circumstances
is required and that the authorisation will be valid for 48 hours during
which time, a full written application must be submitted; [48]
- amendment to the Act to prevent authorities from being invalidated
by reason of a technical fault in the original, varied or renewed authority
not being a defect that affects the substance of the authority in a
material particular; [49]
- amendment to the Act to ensure that evidentiary certificates are conclusive
evidence that the CEO was satisfied as to the matters listed to avoid
CEOs being called to give evidence as to their satisfaction; [50]
- amendment to require that inspection by the Ombudsman of records relating
to any particular controlled operation take place within 12 months of
its commencement (rather than in every 12 month period). This will avoid
the Ombudsman inspecting records of operations that have just commenced;
[51]
- amendment to repeal the section relating to the renewal of authorities
(because the section is little used and requires as much work as an
original application) and instead to enable the section on variation
of authorities to be used to extend the maximum duration of the original
authority; [52]
- amendment to extend the period for reporting by the principal law
enforcement officer engaged in a controlled operation to the CEO from
28 days to two months; [53]
- amendment to the Regulations so that non-urgent applications for variations
may be made by means other than in writing [54]
and that certain forms (application, variation and renewal forms) be
prescribed by Regulation; [55]
- amendment to include a statement of intention in the Act to clarify
Parliament's intention. This would help address concerns by law enforcement
officers about their position in relation to possible prosecution for
activities in controlled operations; [56]
- amendment for another review of the Act, after a further two year
period. [57]
1.49 It is significant that suggested amendments that would extend the
provision for the retrospective authorisation of unforseen controlled
activities were rejected by Mr Finlay. Retrospective authorisation can
be obtained in life threatening situations. The rejected proposal was
that unforeseen (and unauthorised) activities undertaken either before
or during a controlled operation should be authorised retrospectively
where certain conditions are met. First, failure to undertake those activities
would have jeopardised either the operatives involved or the operation.
Secondly, the activities were of such a nature that they would reasonably
have been approved under ordinary circumstances. Thirdly, the application
is submitted within 24 hours of the activity having been undertaken.
1.50 Also rejected was a proposal to permit the CEO certifying that a
matter is of such a sensitive nature that inspection by the Ombudsman
be deferred for a period not exceeding 12 months. [58]
South Australia
1.51 The Criminal Law (Undercover Operations) Act 1995 (SA) provides
that police superintendents (or above rank) may approve an undercover
operation for the purpose of gathering evidence of 'serious criminal behaviour'
being behaviour involving the commission of an indictable offence against
the Controlled Substances Act 1984 or other specified statutory
offences.
1.52 To give approval, the authorising officer must reasonably suspect
that persons are engaging in or about to engage in serious criminal behaviour.
The officer must also be satisfied that the undercover operation is proportionate
to the suspected criminal behaviour, that the means are proportionate
to the end and that there is no undue risk that persons without a predisposition
to serious criminal behaviour will be encouraged to commit an offence.
Approvals may be given for a period of three months and are renewable.
The Attorney-General must be provided with a copy of approvals and table
an Annual Report.
1.53 The effect of an approval is that, despite any other law, an authorised
participant in an approved undercover operation incurs no criminal liability
by taking part in the operation in accordance with the approval. The Act
also seeks to have limited retrospective operation to cover participants
in undercover operations approved prior to the commencement of the Act.
Other States and Territories
1.54 Victoria, Western Australia and the Northern Territory do not have
legislative schemes in relation to the authorisation of controlled operations.
In those jurisdictions, there are only piecemeal legislative provisions,
generally targeted at police investigations into drug related crime. Although
these provisions go some way towards addressing the evidential difficulties
highlighted in the Ridgeway case, they do not constitute a comprehensive
regime such as exists in NSW.
1.55 Although Victoria does not have any legislation specifically directed
at regulating controlled operations, there is a legislative base upon
which administrative and operational procedures for authorising and conducting
such operations have been developed. For the purposes of the Victorian
Police, controlled operations involve the controlled delivery or purchase
of narcotics using either undercover police operatives or police informers.
The Chief Commissioner of Police derives his authority to supervise and
control the Victoria police under the Police Regulation Act 1958 (Vic).
[59] In so doing, the Chief Commissioner
may also make and amend orders for the administration of the police force
and make and amend orders relating to the conduct of the force's operations.
The procedures contained in the Victoria Police's Operating Procedure
Manuals, which also contain the procedures for the conduct of controlled
operations, is derived under that power.
1.56 The approval process in Victoria is both internal and tiered. The
method for obtaining approval differs depending on the level of seriousness
of the investigation proposed. All controlled operations conducted in
investigations other than of a minor nature must be approved by either
the Covert Investigation Target Committee or Deputy Commissioner (Operations).
The Target Committee is comprised of a chairperson, being an officer in
charge of State Crime Squads, and three other members, being another officer
in charge of State Crime Squads, the Regional Crime Coordinator of the
General Policing Department and the officer in charge of the Covert Investigation
Unit. Approval at this level is not required, however, in relation to
minor covert investigations that can be authorised by the officer in charge
of the Covert Investigation Unit after consultation with the chairperson
of the Committee. [60] Also, where a covert
operation is needed in relation to the investigation of the summary offences
of licensing, gaming or other offences of a vice nature, approval must
be obtained from the District Commander. [61]
1.57 In Victoria, immunity from criminal prosecution for police officers
and other persons for drug-related offences is contained in section 51
of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
To qualify, the police officer or person must be acting under written
instructions by a police officer not below the rank of senior sergeant.
Section 51 states:
No member of the police force or person if the member or person is
acting under instructions given in writing in relation to a particular
case by a member of the police force not below the rank of senior sergeant
shall be deemed to be an offender or accomplice in the commission of
an offence against this Act although that first mentioned member or
person might but for this section have been deemed to be such an offender
or accomplice. [62]
1.58 In Western Australia, section 31 of the Misuse of Drugs Act 1981
provides limited protection for police officers and civilian participants
in undercover drug investigations. The Commissioner of Police may authorise
an officer or civilian to act as an undercover officer. In the course
of detecting the commission of an offence that person may acquire a plant
or drug without committing an offence or being declared an accomplice.
Authorised civilians must deliver the plant or drug to a police officer
as soon as reasonably practicable. Failure to do so will constitute an
offence. The Northern Territory has similar provisions. [63]
1.59 The Tasmanian Minister for Police has foreshadowed the introduction
of a Police Undercover Operations Bill in the near future. Queensland,
however, apart from one minor exception [64],
has no legislation governing controlled operations although it is understood
to be under active consideration.
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Footnotes
[1] National Crime Authority, Submission volume,
p. 88
[2] Criminal Justice Commission, Submission
volume, p. 43
[3] Law Enforcement (Controlled Operations)
Act 1995 (NSW), section 3, definitions of controlled operation
and controlled activity
[4] Criminal Law (Undercover Operations)
Act 1995 (SA), section 2
[5] See Crimes Amendment (Controlled Operations)
Act 1996, section 15H
[6] The question in such cases being whether
the public interest in obtaining a conviction and enforcing the law is
so outweighed by unfairness to the accused in the manner in which the
evidence came into existence or into the hands of the Crown, that, notwithstanding
its admissibility and cogency, the evidence should be rejected: Bunning
v Cross (1977-1978) 141 C.L.R 64 per Barwick CJ
[7] Mr Carmody, QCC, Evidence, p. 76. See also,
for example, Criminal Justice Commission, Submission volume, p. 76
[8] Mr Carmody, QCC, Evidence, p. 80
[9] ibid.
[10] ibid., p. 82
[11] See for example, Mr Bradley, NSWCC, Evidence,
p. 30. Amongst the list of law enforcement agencies participating in the
inquiry were: NCA, AFP, NSWCC, CJC, AUSTRAC, Queensland Police Service
and affiliated organisations and associations representing those police
services.
[12] Mr Richard Perry, PIM, Evidence, p. 119
[13] Mr Bradley, NSWCC, Evidence, p. 30
[14] Messrs Bronitt and Roche, Submission volume,
p. 137
[15] Second Reading Speech: House of Representatives
Hansard, 22 August 1995, per the Hon Duncan Kerr MP, Minister
for Justice
[16] Article V, Clause 5a
[17] See Schedule 1 to the Crimes (Traffic
in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth)
[18] Ridgeway v The Queen (1995) CLR
19 at 37
[19] The Bunning v Cross discretion:
See footnote 6
[20] The FATF is an international body established
for the purpose of combating money laundering. Australia is a founding
member of the FATF. There are currently 26 member countries and two member
international organisations.
[21] Australian Transaction Reports and Analysis
Centre, Submission No. 5, Attachment B, The Forty Recommendations of
the Financial Action Task Force on Money Laundering, Recommendation
36
[22] Australian Transaction Reports and Analysis
Centre, Submission volume, p. 80
[23] ibid.
[24] Mr Carmody, QCC, Evidence, p. 77
[25] National Crime Authority, Submission volume,
p. 98
[26] ibid.
[27] National Crime Authority, Submission volume,
p. 92
[28] Crimes Act 1914 Part 1AB Controlled
Operations, Third Annual Report under Section 15T 1998-1999, pp. 131-137
[29] Crimes Act 1914 Part 1AB Controlled
Operations, Second Annual Report under Section 15T 1997-1998, pp. 186-208
[30] Crimes Act 1914 Part 1AB Controlled
Operations, First Annual Report under Section 15T 1996-1997, pp. 124-132
[31] Crimes Act 1914 Part 1AB Controlled
Operations, Second Annual Report under Section 15T 1997-1998, pp. 208
[32] National Crime Authority, Submission volume,
p. 92
[33] That is, although law enforcement agencies
are aware that narcotic goods have passed or are passing through the barrier,
the agency refrains from taking action at that point with the objective
of following the goods to their intended recipient or for the purpose
of gathering further intelligence about the persons/organisations involved
in the importation.
[34] National Crime Authority, Submission volume,
p. 93
[35] Hon Tom Barton MLA, Queensland Minister
of Police and Corrective Services, Submission volume, p. 86
[36] Crimes Amendment (Controlled Operations)
Bill 1995
[37] Ridgeway v The Queen 184 CLR 19
at 43
[38] ibid., p. 44
[39] There have been three such reports tabled.
[40] Attorney-General's Department, Submission
volume, p. 115
[41] ibid., pp. 121-122
[42] The NCA stated that 'it is the NCA's view
that there should be uniform legislation based on the NSW model, but taking
into account the results of the recent review of the legislation': National
Crime Authority Submission volume, p. 89. See paragraphs 1.47-1.50 for
details of the review.
[43] There is no provision for the NCA Chairperson
or Members to issue authorities in respect of NCA operations in NSW.
[44] NSW Inspector of the Police Integrity
Commission, Report: Review of the Law Enforcement (Controlled Operations)
Act 1997 (the Act), 16 April 1999, p. 10-11
[45] ibid., pp. 17-18
[46] ibid., p. 19
[47] Note: This is already available under
section 15L of Part 1AB of the Crimes Act 1914 (Cth)
[48] NSW Inspector of the Police Integrity
Commission, Report: Review of the Law Enforcement (Controlled Operations)
Act 1997 (the Act), 16 April 1999, p. 27
[49] ibid., p. 31
[50] ibid., p. 32
[51] ibid., p. 33
[52] NSW Inspector of the Police Integrity
Commission, Report: Review of the Law Enforcement (Controlled Operations)
Act 1997 (the Act), 16 April 1999, p. 37
[53] ibid., p. 38
[54] ibid., p. 40
[55] ibid., p. 41, noting that if the renewal
is repealed then the form recommended for renewals will not be required.
[56] ibid., p. 45
[57] ibid., p. 46
[58] ibid., p. 34
[59] Police Regulation Act 1958
(Vic), section 5
[60] Victorian Government, Submission volume,
pp. 186-187 (Attachment A; Operating Procedures, Victoria Police Manual,
Chapter 5, paragraph 5.1.15)
[61] ibid., pp. 187-188
[62] In Papoulias v R (1987) 31 Crim
R 322, the Victorian Court of Appeal held that in cases involving the
sale of dangerous drugs to undercover police officers where the requirements
in section 51 were satisfied, the officers did not commit an offence against
the Act and the evidence of those officers could not be rendered inadmissible
by reason of the evidence having been illegally obtained.
[63] See Misuse of Drugs Act (NT), sections
31 and 32
[64] See Vagrants Gaming and Other Offences
Act, section 41 which provides that police officers acting in the
discharge of their duty and persons acting under their instructions shall
not be deemed to be offenders or accomplices in the commission of any
offence under that Act. Section 41 does not apply, however, to the commission
of offences against the Queensland Criminal Code or the Drugs
Misuse Act.
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