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Chapter 2
The Merits of Controlled Operations Legislation
2.1 Discussion took place during the Committee's inquiry on the merits
of a legislative regime to govern controlled operations. The respective
arguments are set out in this chapter.
The case for controlled operations legislation
2.2 Law enforcement representatives generally advocated the expansion
of the ambit and reach of current controlled operations legislation. In
doing so, witnesses argued that the benefits of having such legislation
substantially outweighed the arguments against it. Some of the principal
arguments in favour of controlled operations legislation are that the
legislation:
- balances competing interests; [1]
- provides protection and certainty for law enforcement officers in
relation to their own actions (and avoids the unsatisfactory situation
where decisions are made to commit technical offences); [2]
- ensures that evidence that has been properly obtained according to
the legislative scheme is not going to be judicially excluded; [3]
- imposes internal discipline on police; [4] and
- ensures that there is a scheme of accountability in relation to such
operations and makes the behaviour of law enforcement officers subject
to independent scrutiny. [5]
2.3 In addition, the regulatory framework itself can be subject to review
so that new areas requiring legislative initiatives can be identified.
It could, for example, be determined that a mechanism is needed to compensate
members of the community who suffer loss as a result of a controlled operation.
[6]
Balances competing interests
2.4 The overwhelming view put to the Committee was that controlled operations
legislation provides the appropriate balance and protection for the community
when agencies conduct covert operations. [7]
2.5 Mr Karl Alderson from the Attorney-General's Department pointed out
that the rationale behind such legislation is that if law enforcement
officers are to be authorised to engage in unlawful conduct, then that
authorisation should be matched by an appropriate accountability framework
and statutory limitations and controls on that authority. [8]
While there is a public interest in the convicting of wrong doers, there
is another public interest in ensuring that those entrusted with law enforcement
do not impeach the integrity of the system they seek to uphold by their
own actions. It was the view of most witnesses that controlled operations
legislation is necessary to balance these competing interests and that
it is the business of the Parliament to decide what is and what is not
acceptable conduct in covert operations. [9]
2.6 The Queensland Crime Commissioner, Mr Tim Carmody, asserted that
while there are definite limits on the power of law enforcement agencies
to manipulate people and events in the discharge of their investigative
functions, controlled operations legislation is needed to provide clear
and unambiguous guidelines as to what is and what is not acceptable in
this area:
Controlled operations legislation is needed to balance the competing
public interest objectives of detecting and convicting the guilty and
protecting the integrity of the criminal justice process. [10]
2.7 Mr Carmody added that the enactment of controlled operations legislation
is indicative of the community's determination to combat major crime that
undermines other significant freedoms in our society:
One thing is clear. Organised criminal activity cannot be effectively
countered or eventually defeated unless law enforcement is given the
power, resources and support it needs from government, or until the
community as a whole becomes less ambivalent in its attitude towards
and more hostile in its stance against the threat of organised crime.
[11]
Protection for Covert Police Operatives
2.8 Controlled operations legislation exempts law enforcement officers
(and occasionally civilians) from prosecution in respect of certain unlawful
activities committed by them in the course of a controlled operation.
In the absence of such legislation, covert operatives have had to work
without the assurance that they would not be prosecuted at some later
time. They relied on the favourable exercise of prosecutorial discretion.
2.9 One of the most persuasive arguments in favour of controlled operations
legislation was the view expressed to the Committee that if we, as a society,
are going to ask operatives and/or civilians to participate in this type
of dangerous work which no-one else in society is prepared to do, then
we should provide them with adequate protection to do that work:
You do not send the firefighters in to fight a fire without fireproofing
them. You do not send law enforcement officers into a dangerous situation
without bulletproofing them.
This is all this legislation does in a different context. It bulletproofs
and fireproofs those operatives who operate in isolation. They have
to make discretionary calls. They are trying to present themselves to
criminals as a criminal. It is like the dark; if you want to be accepted
as a criminal, then you must look like one, talk like one and act like
one. [12]
2.10 Law enforcement agencies agreed that it was imperative that law
enforcement officers should have certainty in respect of the activities
they undertake during undercover work. [13]
Mr Carmody asserted that:
It is unacceptable that covert operatives, whether they are sworn or
unsworn, are expected to risk their safety and often their future careers
in the performance of a difficult duty because they do not have the
legislative backing needed to protect them against potential prosecution
in respect of the investigative action that they take. [14]
2.11 Undercover operatives are sometimes required to work in what are
described as 'deep cover' situations where the objective of the operative
is to gain the trust of those connected with organised criminal syndicates.
In those situations, it is common for undercover operatives to be 'tested'
by the criminals they are associating with. This is a common technique
used by criminals to check the `street cred' of new associates. [15]
Such testing is usually in the form of jobs that will involve an escalating
degree of seriousness and criminality. In the absence of controlled operations
legislation, the exercise of discretion by covert operatives in difficult
situations is a very complicated process. Mr Carmody said:
You have to decide there and then whether you are going to take one
course of action or another. What we need is covert operatives who will
take the courageous step that will, in the end, fulfil the objective.
There is no point if you are concerned and looking over your shoulder
worrying that the very law that you are trying to enforce will turn
against you and bite you. You may make the wrong decision and you may
defeat the very objective that you go in there for and take the risks
for. [16]
2.12 Similarly, in the course of undercover work, operatives sometimes
witness criminal activities which, were they in a position to act responsibly,
they would attempt to prevent. In these situations, however, when an officer
is undercover, attempting to stop such unlawful activity may well involve
the operative risking his or her life. [17]
2.13 The view of Mr Peter Alexander, President of the Police Federation
of Australia is that police operatives should not do anything that is
not prescribed by legislative authority. Mr Alexander described controlled
operations as 'fluid'. That is, it is not always foreseeable what activities
an officer may be called upon to participate in during an operation:
We have a real concern about our members doing anything that has not
got the support of legislation. Whilst we admire the entrepreneur, we
worry for them … . At the end of the day, they are people who then
find themselves coming to us with their problems. What they do on behalf
of the Commonwealth government or the state government or their jurisdiction
might be extremely noble, but we do not want them being exposed. [18]
2.14 Controlled operations legislation addresses some of these problems.
The Committee was told that without such legislation, recruitment for
undercover work would be more difficult because fewer police officers
were willing to take risks that could have a negative impact upon their
future career prospects:
That makes recruitment difficult. It is hard enough on covert operatives.
The work they do is hard enough. If you wanted to put on top of that
the risk, and it is a real risk, it is a perceptible risk, that having
done all that they can for their state, they still may well be charged
with doing their duty because it involved the commission of a criminal
offence, whether it is ancillary to the principal offence or not. That
makes recruitment difficult. [19]
2.15 These issues are discussed further under the heading 'Retrospective
authorisation' in paragraphs 6.64 - 6.85.
Admissibility of evidence
2.16 Controlled operations legislation ensures the admissibility of evidence
gathered during a controlled operation. As mentioned above, the Ridgeway
decision was that, on the facts before it, the court should exercise
its discretion in favour of the defence and exclude certain evidence of
the prosecution. That evidence was obtained during a covert operation
without the protection of a statutory approval basis and the unlawful
activities of the officers constituted one of the elements of the offence
with which the accused was charged.
2.17 There are divergent opinions as to the implications of the judgement.
One view is that it was a warning that the judicial discretion to exclude
evidence on public policy grounds may well be exercised against the prosecution
when evidence is obtained in a covert operation involving the police officer
in unlawful activities:
From a practical perspective, the decision places in jeopardy the utility
of any police investigation which in some way demands that the police
participate in the conduct under investigation. [20]
Another school argues that the judgement did no more than exercise the
discretion along the lines of clearly established judicial principles
and that it was confined to those cases where the unlawful activities
of the police officer actually constitutes an element of the offence with
which an accused is charged. [21]
2.18 Following that decision, the Commonwealth regime was enacted. The
legislation put the admissibility of evidence obtained during the course
of authorised controlled operations beyond doubt where police officers
act within the terms of the certificate authorising the operation.
2.19 Mr Carmody described the Ridgeway case as an 'extreme' case.
The evidence was rejected because the unlawfulness in which the police
officers were involved was “a grave contravention” - an international
importation of heroin. He argued that extreme cases are never a good point
of reference for framing legislation:
What you have to look at is the routine case. In the end we have to
work out whether this law does more social good than harm. If it does,
then that answers your civil liberties complaint. [22]
2.20 The NCA described the Ridgeway case in similar terms:
Ridgeway is a bad case making bad law. The circumstances there
were unusual. The High Court's decision in relation to particular facts
is perhaps not surprising. The difficulty with Ridgeway was that
some of the observations the court made raised questions about activities
that would not go as far as occurred in Ridgeway. [23]
2.21 In the NCA's view what is needed is `a sense of balance' and for
Parliaments to decide which activities should be controlled and circumscribed
and which activities should be left within the discretion of those involved
in law enforcement. In the latter case, the agency will have to convince
the court at trial that the evidence should be admitted if indeed there
was some unlawful activity involved. [24]
2.22 Mr Simon Bronitt and Mr Declan Roche, the authors of substantial
papers in the area, recognised a `definite need' for controlled operations
legislation but questioned whether the High Court's decision in Ridgeway
had, in fact, made it too difficult for law enforcement agencies to
conduct controlled operations. They also described the case as an `extreme'
one involving an extreme form of controlled operation where the police
themselves had committed an element of the offence. It was the extreme
nature of the police operation involved that resulted in the evidence
being inadmissible. In their view, legislation is necessary not to facilitate
cases like Ridgeway but to prevent them [25]:
After Ridgeway, Australian law enforcement agencies claimed
that the High Court had unreasonably restricted the ability of law enforcement
agencies to detect and break up drug rings. This claim overlooks the
fact that the High Court confined the scope of the discretion to those
entrapment cases where the illegality was an integral part of the offence
charged. In routine entrapment cases, Mason CJ, Deane and Dawson
JJ held that “the public interest in the conviction and punishment
of those guilty of crime is likely to prevail over other considerations
except in what we would hope to be the rare and exceptional case where
the illegality or impropriety of the police conduct is grave and either
so calculated or so entrenched that it is clear that considerations
of public policy relating to the administration of criminal justice
require exclusion of the evidence” … . [26]
2.23 In the absence of controlled operations legislation, evidence gathered
during the course of a covert operation involving unlawful activity on
the part of law enforcement officers would remain subject to the judicial
discretion to exclude it. NCA Chairperson Mr John Broome warned the
Committee that there are dangers in leaving the issue of the admissibility
of such evidence to judges. He alluded to two recent cases which have,
in his opinion, clearly demonstrated that judicial opinion can vary significantly:
The difficulty is that, absent a controlled operations environment,
there is always the risk that some courts in some places might take
a different view of what the police officers' conduct amounts to and
exclude the evidence in ways which effectively leave the prosecution
with no room to appeal in the event that they are wrong. So we need
to be very careful about the analysis. But, having said that, I think
experience tells us that it is better to be sure rather than sorry and
it is better for the parliament to specifically address these issues
and decide what it thinks is appropriate and to legislate accordingly.
[27]
Controls the police
2.24 The Queensland Crime Commission argued that controlled operations
legislation controls a field of law enforcement endeavour which was, prior
to Ridgeway and before the legislation, uncontrolled. Law enforcement
officers took risks which were undocumented and largely undiscovered,
removed from public scrutiny. According to Mr Carmody:
Anyone with a secret is a danger to himself, the organisation he works
for and society generally. [28]
2.25 Mr Broome told the Committee that one of the apparent but unstated
objectives of Part 1AB was to control the police. He referred to the disapproval
of the police conduct expressed by the High Court in Ridgeway.
A consequence of Part 1AB is that, rather than providing a carte blanche
to police as some may have feared, it has, in fact, imposed a form
of internal discipline and control on law enforcement agencies:
The stringent approval process and reporting requirements have been
strictly observed. Approvals for controlled operations are not easily
obtained or lightly given. The legislation has imposed an internal discipline
on law enforcement agencies. The question arises whether there are too
many controls in Part 1AB that make it too unwieldy from an operational
perspective. While the answer to that question must be `no' there are
difficulties with the overall limitations and requirements of Part 1AB
… . [29]
Proper accountability
2.26 In terms of accountability, legislatively regulating controlled
operations ensures that an appropriate approvals process is in force to
review the need for particular operations and that the operation is adequately
monitored and periodically reviewed. This kind of accountability minimises
the risks associated with covert operations, to both police officers and
the community. [30]
2.27 As a result of the accountability procedures provided under the
Commonwealth Act, information is recorded for public scrutiny whereas
previously it was scattered throughout the transcripts of relevant cases
in the judicial process. The Annual Reports on the operation of Part 1AB
of the Crimes Act 1914 contain statistical and other data that
can be used to assess, though not critically, the impact of controlled
operations on the law enforcement effort. The AFP, for example, asserted
that controlled operations legislation has contributed significantly to
the AFP objective of dismantling and disrupting major syndicates involved
in drug trafficking. Considerable seizures of drugs have occurred, particularly
of heroin and cocaine. There is now information available as to the number
of controlled operations, the kinds of controlled operations and the results
of those operations. [31]
The case against controlled operations legislation
Law enforcement officers engaging in unlawful activities
2.28 Representing the NSW Law Society, Professor Trevor Nyman described
controlled operations legislation as 'dangerous law' because it legitimates
crimes committed by those who are charged with the responsibility of upholding
the law. [32] The effect of this sort of legislation
is that it causes damage to the fabric of morality. Professor Nyman made
seven points in his opening statement to the Committee summarising the
Law Society's position. Briefly these were:
- a balance must be maintained between the rights of individuals and
police powers;
- two decades of legislation has significantly eroded citizens' privacy
and civil rights;
- this kind of legislation is dangerous because it makes lawful crimes
committed by police;
- law enforcement agencies should be resourceful rather than seeking
expanded powers;
- as applications for controlled operations certificates are ex parte,
most will be granted;
- the fabric of morality is damaged first within the police and then
within society; and
- the NCA's functions do not include the organisation and commission
of fresh crimes. [33]
2.29 Professor Nyman argued strongly against the proliferation of this
type of legislation and concluded by advising the Committee that the Law
Society would prefer to have the law restated as it was pre-Ridgeway.
[34]
Function creep
2.30 One of the main concerns expressed about the introduction of this
type of legislation is what Mr Terry O'Gorman, President of the Australian
Council for Civil Liberties, referred to as `function creep'. That concept
is used where the government legislatively provides for a new administrative
function and subsequently considers the expansion of the powers conferred.
The concept is particularly relevant where the new function confers powers
on an arm of government which that arm previously did not have and where
those powers are of a nature that arguably have the potential to detract
from basic rights and freedoms: Mr O'Gorman described it thus:
It is the police powers equivalent of the economics of bracket creep.
It is simply this: when you look at major increases in police powers
that have been brought in federally - at state level as well, but I
particularly want to address the federal sphere - they have all been
brought in, using the spectre of high-level drug trafficking, to make
respectable what people would otherwise have significant reservations
about. [35]
2.31 Mr O'Gorman used the introduction of legislation to authorise telephone
tapping to demonstrate the concept. Telephone tapping was introduced federally
in 1979, in the immediate aftermath of Royal Commissions, including those
of Stewart and Costigan. Mr O'Gorman claimed that, in contrast to
the initial assurances that the use of telephone tapping would be confined
to the investigation of the most serious federal offences, telephone tapping
is now available for most indictable offences.
2.32 In Mr O'Gorman's analysis, the call by law enforcement agencies
for wider powers in relation to controlled operations legislation is another
instance of function creep. The legislation was introduced in 1996 to
counter the Ridgeway decision, which he described somewhat rhetorically
as `the terrible calamity that law enforcement was going to face because
of this awful High Court decision that meant that no-one could wear anything
other than a uniform in the police field'. [36] Now, law enforcement agencies are arguing that
the powers under that legislation should be extended beyond the investigation
of offences involving the importation of narcotics. Mr O'Gorman said:
The argument is: look at South Australia, look at New South Wales -
and the NCA looks longingly at those two pieces of legislation saying,
“I want one of those too, please.” Those pieces of legislation
say, “controlled operations across the field of indictable offences”.
No longer are we talking about the most serious offences - function
creep is happening again. [37]
2.33 Mr O'Gorman submitted that the call by law enforcement to extend
this legislation is typical of the function creep that has occurred in
criminal law at the Federal and state levels over the last two decades.
The legislation, passed three years ago, permits the AFP and the NCA to
actually import heroin and other drugs into Australia. It is now proposed
to extend the power to commit unlawful acts in relation to a much wider
range of lesser offences:
The process is categorised by controversial legislation being justified
at inception as being directed at serious and high level drug trafficking
and then, once the hoo-ha dies down, there are then moves made by law
enforcement agencies to extend the formerly controversial and restricted
legislation effectively across most of the calendar of indictable offences.
[38]
2.34 Dr Tim Anderson, Secretary of the NSW Council for Civil Liberties,
also expressed concern about the possible extension of powers in controlled
operations legislation. Dr Anderson said that, in formally authorising
criminality, as well as breaches of privacy, there is a substantial change
from the former models. In the past, the accepted model was that one had
to apply to a senior judicial officer to get a warrant for a breach of
privacy, for example, let alone for an act of criminality:
Now that door has been opened in a sense, the arguments coming from
the executive agency are to universalise the extension of that executive
power such that now that, for example, we can engage in drug trafficking,
we want to be able to do other things as well and we want our informants
to be able to do it as well. [39]
2.35 Similarly, Professor Nyman representing the NSW Law Society said:
If I can say this, the Law Society recognises that legislation has
been passed that opens the door, just as the door was opened by the
federal parliament for phone tapping. The Law Society advises you not
to proliferate this type of activity by police forces because it will
become an industry, just as phone tapping has already become an industry.
[40]
2.36 Mr Broome rejected the suggestion that expanding the powers and
functions of law enforcement agencies was function creep. Mr Broome called
it 'function retrograde'. He said that post Ridgeway, in New South
Wales, the advice of the then Solicitor-General was that the Ridgeway
case did not require any change to law enforcement operations and procedures.
The reality was, however, that prosecutors wanted clarity about what agencies
were allowed to do and were `jittery about the continuation of what was
in fact the status quo'. The result was Commonwealth legislation that
was in fact much narrower than what Commonwealth agencies had been able
to do previously. It was not an expansion of powers but a contraction
of powers:
There really is a failure to just understand the fundamental law and
the facts involved, and from that develops a whole range of myth, innuendo
and allegation which needs a little bit of sunlight being cast upon
it to show it for what it really is. [41]
Entrapment
2.37 One of the principle concerns expressed about this type of legislation
is that it will lead to the commission of offences, which, but for the
opportunities presented by the investigators, people would not have committed.
This is commonly referred to as entrapment. Dr Anderson gave a recent
example of entrapment made to him personally:
I was speaking to a man last week who has been released from gaol after
having served a long sentence for drug trafficking. He was approached
by someone he discovered was an informant who offered to sell him a
large amount of drugs at a very cheap price. He discovered that that
person was wired up with a bugging device – an attempt at entrapment,
clearly. That is the sort of operation at ground level, at the pointy
end of policing, which is going on as a result of controlled operations
activities. [42]
2.38 In its submission in relation to the NSW controlled operations Bill
in 1997, the NSW Law Society expressed concern about the potential for
the proposed provisions to authorise activities that amount to entrapment.
The Society submitted that it was clearly indicated in both common law
and statute law that law enforcement officers should not be involved in
organising the commission of a crime. The Society referred to section
15I(2) in Part 1AB of the Crimes Act and noted that it actually
helps to safeguard against this type of situation whereas the NSW Bill
had no such safeguard provision. Section 15I(2) provides that officers
are not exempted from liability for prosecution if their conduct involves
intentionally inducing the person to commit an offence where the person
would not otherwise have had the intent to commit that offence. The Society
warned that an approval in general terms (in relation to activity that
can be engaged in by an officer) could enable action that amounts to entrapment
to be protected under the umbrella of a broad and specific approval. [43]
Administrative convenience
2.39 Dr Anderson warned the Committee that while covert operations are
valuable tools of trade `many things are done in the name of administrative
convenience'. He said that it might be the case that more people can be
arrested for drug offences by giving greater powers to an executive arm
of government but that there will be implications in terms of people's
rights and responsibilities:
If the parliament is now going to codify those sorts of things and
codify executive powers and deliver substantial powers to the executive
arms of government, then the parliament really has to have a very careful
look at the codification of rights and responsibilities. [44]
New problems
2.40 Dr Anderson told the Committee that the NSW Council for Civil Liberties
did not have major problems, in principle, with the police engaging in
certain activities in the pursuit of surveillance and detection. He warned,
however, that delivering increased power to an executive agency would
have the consequence of raising new problems. For example, once police
are authorised to traffic in large amounts of heroin, the police will
want to know whether they should be dealing with fifty kilos or one. The
risks of failure will increase and so too, will the risks of their responsibility.
[45]
It may be that there are some more arrests. As I said, I am prepared
to accept that these agencies will come to the parliament and ask for
more power and more resources to arrest more of the middle ranking people,
and they will do it. But they will seriously corrode the rights and
responsibilities of citizens in the course of extending those powers,
without acknowledging that. Typically, administrators do not acknowledge
that there are consequences of their own extended powers and their legitimised
criminality. [46]
Effectiveness
2.41 Dr Anderson argued that the consequences of expanding police powers
and resources are questionable. If you increase police fivefold, you will
have more arrests but also a similar crime rate. He claimed that some
types of criminal activity such as robbery that are associated with institutionalisation
would be aggravated. In Dr Anderson's view, there are serious strategic
problems involved in expanding police powers: He said:
What is the point? You can arrest a person and put them back in gaol.
You can create scenarios and it looks good on your statistics and your
annual report looks better. You have not done anything about the drug
problem. Underlying this, of course, we have to remember that police
operations in this country do not fundamentally affect the price of
heroin – to take heroin as an example. [47]
2.42 The NSW Crime Commissioner, Mr Phillip Bradley, agreed with Dr Anderson's
fundamental proposition. He described the capacity to arrest criminals
as 'a mathematical thing'. Increasing police resources will result in
more arrests, but the effectiveness of that in terms of drugs is an open
question. Resources alone cannot solve the drug problem. There comes a
point when increasing resources becomes inefficient. It is a balancing
act. The view of law enforcement, however, is that, police should arrest
the more serious offenders. [48]
Different classes of citizens
2.43 The NSW Council for Civil Liberties claimed that a consequence of
controlled operations legislation is that it creates different classes
of citizens. In contrast to most citizens, the legislation creates a class
of citizens who hold `superior' rights who are exempted from the legal
process:
This formal fragmentation of citizens rights, we believe, is deplorable.
It is true that such disparities have de facto existed for a very long
time. However, to formalise them, we believe, exacerbates the fracturing
of civil society. We do not expect that those who are subject to the
sanction of the law, will be impressed that their prosecutors have effective
immunities. We note the damage done to civil society in other countries
(such as Chile and Argentina) where immunities for state officials has
been created. In this regard we recall the first sentence of Article
7, Universal Declaration of Human Rights: “All are equal
before the law and entitled without any discrimination to equal protection
of the law.” Article 8 then speaks of everyone's entitlement to
“an effective remedy” for breach of one's rights. Where is
the “effective remedy” if the perpetrator is a state official
with a certificate of immunity? [49]
2.44 Professor Nyman was also concerned about the apparent double standards
the legislation creates. He claimed that the existence of these double
standards damages the fundamental principle that we should abide by the
law. He remarked that although the law says one thing, many members of
the public believe the opposite:
If some persons are permitted to commit crimes with impunity, why can't
I? Why can't he? Why can't my son? [50]
Right to a fair trial
2.45 An important consideration is the effect that this kind of legislation
might have on the individual's right to a fair trial. Mr Bronitt referred
to the recent decision from the European Court of Human Rights, Teixeira
de Castro v Portugal which is directly concerned with the issue of
entrapment and the accused's right to a fair trial. The court distinguished
between legitimate undercover operations and police incitement. The decision
indicates that while legitimate ruses can be employed to pursue serious
criminals, the accused's right to a fair trial remains fundamental. The
public interest of obtaining convictions against criminals cannot justify
the use of evidence that is obtained as a result of police incitement.
2.46 Mr Bronitt's analysis is that this decision is significant in terms
of international human rights law because it recognises that the right
to a fair trial is relevant not only in any subsequent court proceedings
against an accused but also during the investigative stage when evidence
is gathered. He stated that any decision to legislate on controlled operations
should take this important international standard into account:
This is a very important question of compliance, ensuring that any
legislative regime for controlled operations meets with the international
standards laid down in that case. The question is not if such a challenge
occurs but rather when. I think the NCA's idea of balancing crime control
and human rights is a utilitarian approach which could lead to more
and more extraordinary powers granted to the state to investigate serious
crimes. The difficulty with that approach is that the balance inevitably
tilts in favour of crime control. It is really a zero sum game. As the
seriousness of the alleged criminal activity increases, so does our
need to uphold fundamental human rights. I oppose using any kind of
idea of balancing as the basis of such legislation. It is about ensuring
that, in the intrusion into the suspect's rights to privacy and fair
trial, we give utmost respect for those rights. [51]
Conclusion
2.47 The Committee recognises that controlled operations are a necessary
tool in law enforcement, particularly in the context of combating organised
and serious crime. It acknowledges the important contribution of undercover
police operatives to the effort of law enforcement agencies to disrupt
that kind of criminality. At the same time, the Committee is concerned
to ensure that the rights of citizens are not undermined by the implementation
of any legislative regime to govern the proper administration of those
operations. In conclusion, the Committee's view is that a regime with
proper checks and balances is necessary to ensure that any expansion of
police power to conduct controlled operations is met by an appropriate
approval process and strict accountability requirements.
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Footnotes
[1] Mr Carmody, QCC, Evidence, p. 76
[2] Mr Butler, CJC, Evidence, p. 91
[3] ibid.
[4] National Crime Authority, Submission volume,
p. 91
[5] Mr Butler, CJC, Evidence, p. 91
[6] Hon Tom Barton MLA, Minister of Police and
Corrective Services (QLD), Submission volume, p. 85
[7] See for example: Hon Tom Barton MLA, Queensland
Minister of Police and Corrective Services Submission volume, p. 86; Mr
Broome, National Crime Authority, Evidence, p. 14
[8] Mr Alderson, Attorney-General's Department,
Evidence, p. 188
[9] See for example: Mr Bradley, NSWCC, Evidence,
p. 34
[10] Mr Carmody, QCC, Evidence, p. 76
[11] ibid.
[12] Mr Carmody, QCC, Evidence, p. 80
[13] Mr Butler, CJC, Evidence, p. 91
[14] Mr Carmody, QCC, Evidence, p. 76
[15] ibid., p. 85
[16] Mr Carmody, QCC, Evidence, p. 81
[17] Mr Bradley, NSWCC, Evidence, pp. 33-34
[18] Mr Alexander, PFA, Evidence, p. 47
[19] Mr Carmody, QCC, Evidence, p. 81
[20] Senate Legal and Constitutional Legislation
Committee, Crimes Amendment (Controlled Operations) Bill 1995,
September 1995, p. 5
[21] See for example Messrs Bronitt and Roche,
Submission volume, pp. 125-126
[22] Mr Carmody, QCC, Evidence, p. 81
[23] Mr Broome, NCA, Evidence, p. 14
[24] ibid.
[25] Messrs Bronitt and Roche, Evidence, pp.
137-138
[26] Messrs Bronitt and Roche, Submission volume,
pp. 125-126
[27] Mr Broome, NCA, Evidence, p. 4. The cases
he alluded to were Mr Justice Vincent in the John Elliott case and Mr
Justice Merkel in the matter of A1 and A2. In these cases the trial judges
took the view that the NCA's actions were unlawful but for ostensibly
contradictory reasons. They then considered whether evidence obtained
through that unlawful activity was admissible. Mr Justice Vincent ruled
that the evidence was inadmissible because the reference under which it
was collected was invalid. The Court of Appeal later found the trial judge
had erred but for technical reasons could not be reheard. In the second
case, the judge decided that a reference was invalid and therefore an
NCA hearing could not proceed. This was overturned unanimously by the
Full Court of the Federal Court. Mr Broome speculated that in this second
case, had it been a trial, Mr Justice Merkel would have similarly ruled
that the evidence was inadmissible.
[28] Mr Carmody, QCC, Evidence, p. 83
[29] National Crime Authority, Submission volume,
p. 91
[30] Hon Tom Barton MLA, Queensland Minister
of Police and Corrective Services, Submission volume, p. 84
[31] See for example: Mr Keelty, AFP, Evidence,
p. 155
[32] Professor Trevor Nyman, NSW Law Society,
Evidence, p. 66
[33] Professor Trevor Nyman, NSW Law Society,
Evidence, pp. 65-66
[34] ibid., p. 74
[35] Mr O'Gorman, ACCL, Evidence, p. 99
[36] Mr O'Gorman, ACCL, Evidence, p. 99
[37] ibid.
[38] Australian Council for Civil Liberties,
Submission volume, p. 158
[39] Dr Anderson, NSWCCL, Evidence, p. 21
[40] Professor Nyman, Law Society of NSW, Evidence,
p. 72
[41] Mr Broome, NCA, Evidence, p. 202
[42] Dr Anderson, NSWCCL, Evidence, p. 23
[43] Law Society of NSW, Submission volume,
p. 141
[44] Dr Anderson, NSWCCL, Evidence, p. 23
[45] ibid., p. 24
[46] ibid., p. 29
[47] Dr Anderson, NSWCCL, Evidence, p. 28
[48] Mr Bradley, NSWCC, Evidence, p. 30
[49] NSW Council for Civil Liberties, Submission
volume, p. 149
[50] Professor Trevor Nyman, NSW Law Society,
Evidence, p. 67
[51] Mr Bronitt, Evidence, p. 140
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