Chapter 2


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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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

2.20 The NCA described the Ridgeway case in similar terms:

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]:

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:

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:

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:

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:

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:

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:

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:

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:

2.35 Similarly, Professor Nyman representing the NSW Law Society said:

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:

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:

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:

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]

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:

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:

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:

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:

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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