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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Date Introduced: 4 April 2001
House: Senate
Portfolio: Justice and Customs
The Bill's major purposes include:
There are linkages between the controlled operations and assumed identities provisions in the Bill. For the most part, however, the Bill covers a number of disparate areas. For this reason, background information about each topic can be found under the relevant heading in the Main Provisions section.
The Bill's assumed identity provisions apply to a number of Commonwealth agencies including the Australian Secret Intelligence Service (ASIS) and the Defence Signals Directorate (DSD). The Intelligence Services Bill 2001 which is currently before the Parliament provides a legislative basis for these organisations and, among other things defines their functions. It is relevant to the assumed identities provisions in the Measures to Combat Serious and Organised Crime Bill 2001. Readers wanting background information about ASIS and DSD and a discussion of the Intelligence Services Bill should consult Bills Digests Nos. 11 & 12, 2001-02.(2)
Schedule 1-Controlled operations
Background-Commonwealth controlled operations legislation
Commonwealth controlled operations legislation had its genesis in the High Court's decision in Ridgeway v. Queen.(3) On his release from prison, a person with drug trafficking convictions-Ridgeway-contacted a former associate in order to obtain some heroin. However, the former associate had turned police informer. The police and the former associate arranged to buy and import heroin into Australia and sell it to Ridgeway who was then arrested, charged and convicted of offences under the Customs Act. The High Court quashed Ridgeway's conviction. In their joint judgment, Mason CJ, Deane and Dawson JJ said:
In these circumstances ... grave and calculated police criminality; the creation of an actual element of the charged offence; selective prosecution; absence of any real indication of official disapproval or retribution; the achievement of an objective of the criminal conduct if evidence be admitted-combine to make the case an extreme one in which the considerations favouring rejection of evidence on public policy grounds are extremely strong.(4)
Their Honours also remarked:
... in the context of the fact that deceit and infiltration are of particular importance to the effective investigation and punishment of trafficking in illegal drugs such as heroin, it is arguable that a strict requirement of observance of the criminal law by those entrusted with its enforcement undesirably hinders law enforcement. Such an argument must, however, be addressed to the Legislature and not to the courts. If it be desired that those responsible for the investigation of crime should be freed from the restraints of some of the provisions of the criminal law, a legislative regime should be introduced exempting them from those requirements.(5)
Following the decision, controlled operations legislation was enacted in South Australia(6), New South Wales(7) and by the Commonwealth Parliament. More recently, controlled operations legislation has been enacted in Queensland.(8)
The Crimes Amendment (Controlled Operations) Act 1996 inserted Part 1AB into the Crimes Act 1914 (Cwlth). Part 1AB creates a statutory regime governing Commonwealth controlled operations. It:
In 1998, the Commonwealth Attorney-General's Department reviewed Part 1AB of the Crimes Act. In its submission to a 1999 inquiry conducted by the Parliamentary Joint Committee on the National Crime Authority (PJC) it noted a number of proposals for reform made during the consultations accompanying the review. These included:
In 1999, the PJC resolved to report on the NCA and controlled operations legislation. Among the recommendations made by the PJC were that:
The Government responded to the PJC's recommendations on 29 March 2001. Among other things it:
Title, purposes and definitions
Item 11 of Schedule 1 repeals the existing heading for Part 1AB of the Crimes Act ('Controlled operations for obtaining evidence about certain offences relating to narcotic goods') and replaces it with a new heading ('Controlled operations for obtaining evidence about Commonwealth offences'). Although the title of the Bill refers to 'serious and organised crime' the new title for Part 1AB reflects the fact that the amendments enable controlled operations to be conducted-subject to the terms of the legislation-in relation to any Commonwealth offence.
Section 15G of the Crimes Act sets out the objects of Part 1AB. Item 12 amends section 15G in a number of ways. First, it reflects the expansion of the controlled operations regime from narcotics offences to any Commonwealth offence. Second, it states that another object of Part 1AB is to exempt from criminal liability and indemnify from civil liability persons other than law enforcement officers who take part in an authorised controlled operation. Third, it states that law enforcement officers and others will be protected when they are involved in what would otherwise be an offence against Commonwealth, State or Territory law.(12) Fourth, another object of the legislation will be to indemnify from civil liability law enforcement officers who participate in authorised controlled operations (at present these officers are only protected from criminal liability). Fourth, another new object of the legislation will be to require the Chief Executive Officer of Customs to report to the Minister on controlled operations (item 13).
Item 17 repeals and replaces sections 15H, 15I and 15J of the Crimes Act. Existing section 15H defines a controlled operation as involving law enforcement officers engaging conduct that would otherwise constitute a narcotics offence in order to obtain evidence for the prosecution of a section 233B offence or an associated offence. New section 15H expands the definition of 'controlled operation' in a number of ways. It will include an operation to obtain evidence for the prosecution of a 'Commonwealth offence' and may involve a law enforcement officer or other person engaging in otherwise illegal conduct.
New subsection 15I(1) immunises a law enforcement officer who engages in conduct that would otherwise be an offence against Commonwealth, State or Territory law from criminal liability if the conduct:
New subsection 15I(2) provides the same immunity to a non-law enforcement officer whose conduct:
New subsection 15IA(1) indemnifies law enforcement officers who take part in a controlled operation when they engage in conduct in the course of duty and their conduct meets the requirements of:
New subsection 15IB(1) specifies that there must be a section 15M certificate in force authorising the operation, the conduct must be covered by the certificate and not breach any conditions contained in the certificate, the conduct must not involve intentionally inducing a person to commit an offence they would otherwise not have committed, and the conduct must not involve the commission of a sexual offence or an offence involving death or serious injury.
Indemnities apply in a similar fashion to persons other than law enforcement officers who are involved in controlled operations [new subsection 15IA(2)].
The immunities and indemnities provided by new sections 15I and 15IA do not apply if a person's conduct could be authorised under certain other criminal investigation laws (new section 15IC). The Explanatory Memorandum explains that the purpose of new section 15IC 'is to make clear that the proposed new controlled operations provisions do not override or oust specific laws governing the conduct of criminal investigations on specific topics'.(13) Examples of those laws include laws governing arrest, listening devices and telecommunications interception.
Applying for a controlled operations certificate and authorising a controlled operation
Under the law as it stands, an application for a controlled operations certificate is made to the AFP Commissioner, a Deputy Commissioner or an Assistant Commissioner, or to a member of the NCA (section 15J). Only a law enforcement officer who is in charge of a controlled operation can apply for a certificate authorising a controlled operation (section 15J). New section 15J amends the law in a number of ways. For example, it:
Items 19 and 20 amend section 15M which sets out the grounds on which a controlled operations certificate can be issued. At present, an authorising officer can issue a certificate if 'he or she is satisfied' about the criteria in paragraphs 15M(a)-(d). As a result of item 19 the authorising officer will only need to be 'reasonably satisfied' about the criteria in new paragraphs 15M(a)-(h).
The matters set out in existing paragraphs 15M(a)-(d) about which the authorising officer must be satisfied are:
New paragraphs 15M(a)-(h) require the authorising officer to be 'reasonably satisfied' that:
Controlled operations certificates
Existing section 15N of the Crimes Act stipulates the form and content of a controlled operations certificate. For example, it must be in writing and signed, state the name of the applicant and give a brief description of the controlled operation-including the name of the target, the nature and quantity of the narcotics involved and the foreign countries through which they are expected to pass [subsections 15N(1) and (2)]. At present, a controlled operations certificate expires after 30 days [subsection 15N(4)].
The existing terms of subsections 15N(1) and (2) are largely unchanged-except by the substitution of the expression 'any illicit goods' for 'narcotic goods'. This amendment is in keeping with the expanded range of controlled operations contemplated by the Bill. However, items 23-25 add to section 15N in a number of ways. For example, new paragraphs 15N(2)(ca)-(cd) provide that a certificate must state the nature of the activities it covers and the nature of the activities assigned to particular operational personnel, identify any non-law enforcement officers who are involved in the operation, and any conditions to which the operation is subject. New subsection 15N(2A) provides that a person who is not a law enforcement officer may be identified by a false name if the AFP Commissioner, NCA Chairperson or CEO of Customs has a document enabling the person's true identity to be ascertained. New subsection 15N(4) increases the length of time a controlled operations certificate can be in force from 30 days to 6 months. However, in order for a certificate to be in place for more than 3 months it must be reviewed.(16)
Varying a controlled operations certificate
While the current legislative regime enables controlled operations certificates to be surrendered, it does not allow for their variation.
Item 27 inserts new section 15NA which enables an authorising officer to vary a controlled operations certificate. A certificate can be varied if:
If the authorising officer agrees to vary the certificate, each variation must be stated in writing [new subsection 15NA(4)].
Terminating a controlled operations certificate
New section 15OA enables an authorising officer to terminate a controlled operations certificate by providing written notification to the officer in charge of the operation. The notification must specify the time when the notification takes effect (item 28).
The duration of a controlled operations certificate
At present, a controlled operations certificate expires after 30 days. As a result of new section 15OB, a controlled operations certificate expires 3 months after the date on which it was issued, unless it has been reviewed and the authorising officer concludes that it should be in force for 6 months or some earlier time [see existing paragraph 15P(3)(a)].
Item 31 inserts new section 15PA which provides that if a controlled operations certificate has expired (after 3 months), been varied, surrendered or terminated, a person will still be covered by the immunities and indemnities contained in sections 15I and 15IA so long as:
Item 34 repeals and replaces section 15R of the Crimes Act. The present reporting requirements oblige the AFP Commissioner or the NCA Chairperson to advise the Minister 'as soon as practicable' after making a decision about an application for a controlled operations certificate of the decision and the reasons for it. These reasons must include an indication of the extent to which the seriousness of criminal activities were taken into account.
New section 15R requires the AFP Commissioner, NCA Chairperson and CEO of Customs to report to the Minister within 2 weeks from the end of each quarter about each decision to grant or refuse a controlled operations certificate, each variation, review, surrender or termination of a certificate and each certificate that is still in force. A 'quarter' is defined as 'a period of 3 months ending on 31 January, 30 April, 31 July or 31 October' (item 9).
Item 35 amends section 15S of the Crimes Act. In particular, it repeals and replaces subsections 15S(1) and (2). The amendments provide that a report made under section 15R must include the reasons why decisions were made to grant or refuse an application or vary or review a certificate. If a controlled operation has been finalised during the relevant quarter, the report must identify each person targeted by the operation and each person involved in the operation, indicate which people were not law enforcement officers, and what activities were engaged in. If the operation involved illicit goods, the report must state the nature and quantity of those goods and the route through which the goods passed. If the operation involved illicit goods that are narcotic goods, the reporting requirements generally re-produce those in existing subsection 15S(2).(17)
Item 41 provides that if Schedule 1 does not commence at the beginning of a quarter, then the new reporting requirements will not apply to decisions made or certificates given before the commencement. The old reporting requirements will continue to apply to those decisions and certificates.
Item 48 provides that amendments will not apply to a controlled operations certificate in force immediately before the commencement of the amendments. The old provisions will apply to such certificates.
If the Bill is passed, intelligence and law enforcement officers and others (including those involved in controlled operations) will have access to a statutory regime for assumed (false) identities. At present, there is no Commonwealth legislation governing assumed identities. The Minister's Second Reading Speech explains the assumed identities provisions in the following way:
Assumed identities are false identities adopted to facilitate intelligence and investigative functions, or infiltration of a criminal, hostile or insecure environment with a view to collecting information and investigating offences. Law enforcement and intelligence agencies require assumed identities to protect officers and others in the course of performing their functions. Criminals increasingly seek to verify commonly carried identification, such as Medicare cards. It is proposed to amend the Crimes Act to permit law enforcement and intelligence officers, and other approved persons, to obtain and use assumed identities to support their activities.
Who can obtain an assumed identity?
As a result of new sections 15XA and 15XB, 'approved officers' and 'approved persons' can acquire evidence of and use an assumed identity.
'Approved officers' include officers of the AFP, Customs, ASIO(18), ASIS, DSD, DIO(19), and the Australian Taxation Office (ATO). Also included are officers of certain State and Territory agencies such as police forces, the ICAC(20), CJC(21), Western Australian Anti-Corruption Commission and similar bodies. Further, officers of Commonwealth, State and Territory agencies prescribed by regulation may be 'approved officers'. Officers of foreign law enforcement, intelligence or security agencies may also be 'approved officers'.
The expression, 'approved person', is merely defined as any person who is authorised to use an assumed identity under subparagraph 15XI(2)(d)(i).
What does 'using an assumed identity' mean?
Using an assumed identity means representing, expressly, impliedly or by words, conduct or omission, a false identity as a real identity or acting in a way that is consistent with a false identity [new subsection 15XA(2)]. The Explanatory Memorandum gives an example of the use of an assumed identity:
... if a person acquires a passport as evidence of an assumed identity, it is intended that the person will be able to use that passport to travel outside Australia as if it were the person['s] real identity and not just hold the passport as a means of identification.(22)
What does 'acquiring evidence of an assumed identity' mean?
'Acquiring evidence of an assumed identity' includes obtaining documents or other things purporting to show the person's identity when it is not the person's real identity [new subsection 15XA(3)].
Who can authorise the acquisition and use of an assumed identity?
Assumed identities can be authorised by the head of a participating agency or by an authorised person who belongs to a class of persons prescribed by regulation (new section 15XA). 'Participating agencies' are the Commonwealth, State and Territory participating agencies mentioned above.
New subsection 15XB(1) enables an 'approved officer' to acquire and use an assumed identity in the course of duty and subject to any conditions that are imposed. New subsection 15XB(2) enables an 'approved person' to acquire and use an assumed identity in accordance with directions from a supervising officer and any authorisation conditions. A 'supervising officer' is the person in the authorising officer's participating agency who is responsible for supervising the acquisition and use of an 'approved person's' assumed identity [new section 15XA and new subparagraph 15XI(2)(d)(ii)].
New section 15XC protects an 'approved officer' or 'approved person' from criminal liability in certain circumstances. For instance, an 'approved officer' is not criminally liable for conduct that would otherwise constitute an offence against Commonwealth, State or Territory law if:
An example is given of an officer who makes a misrepresentation that he or she is unemployed but the representation would be true if the officer's assumed identity were his or her real identity.
New subsection 15XC(2) protects an 'approved person' from liability for what would otherwise be criminal conduct if:
New section 15XD requires 'Commonwealth participating agencies' to indemnify 'approved officers' and 'approved persons' against any liability incurred subject to conditions that are similar to the requirements of new section 15XC.
Irrespective of any documentary evidence obtained as part of an assumed identity, new sections 15XC and 15XD do not protect an 'approved officer' or 'approved person' engaging in conduct that requires a particular skill or qualification if he or she does not in fact possess that skill or qualification (new section 15XF).
New section 15XE provides that if an approved officer's or approved person's authorisation is varied or revoked, the officer or person continues to be protected from criminal liability and indemnified against civil liability so long as he or she is:
New section 15XE sits uneasily with new section 15XK (see below) which provides that a person must be given written notice when an assumed identity is varied or revoked. In other words, if a person must be given written notice of a variation or revocation, how can he or she be unaware of it?
In what circumstances can the acquisition or use of an assumed identity be authorised?
New subsection 15XG(1) enables an authorising person from a 'Commonwealth participating agency' to authorise a person to acquire evidence of and/or use an assumed identity-if it is 'appropriate to do so'. An assumed identity can only be used in a foreign country if it is 'reasonably necessary to do so'. Evidence of an assumed identity can be obtained from a Commonwealth agency or a non-government body.
A 'foreign officer' can also be authorised by the Commonwealth to acquire evidence of and/or use an assumed identity [new subsection 15XG(3)]-if the authorising officer considers that it is 'reasonably necessary to do so'. A 'foreign officer' is defined as an officer of a law enforcement, intelligence or security agency from a foreign country (new section 15XA).
A 'State or Territory participating agency' can authorise a person (other than a foreign officer) to acquire evidence of an assumed identity from a Commonwealth agency and/or use that identity (new section 15XH). The prerequisites for a State or Territory authorisation for a person to use an assumed identity in a foreign country are the same as those for a Commonwealth authorisation.
The contents of an assumed identity authorisation
New section 15XI deals with the contents of an authorisation. The authorisation must be in writing. It must include the name of the authorising person, the date of the authorisation, the name of the officer or person who has been given the assumed identity, the name of the supervising officer (if the person is an 'approved person'), details of the assumed identity, all Commonwealth and non-government bodies who will be requested to issue evidence of the assumed identity, the reasons for authorising the assumed identity, whether the assumed identity can be used in a foreign country, and any conditions to which the authorisation is subject.
Revoking and varying assumed identities
An assumed identity authorisation remains in force until it is revoked (new section 15XJ).
New section 15XK provides that an authorisation may be revoked or varied at any time. Written notice of the revocation or authorisation must be given to the person who is covered by the authorisation. The notice must state the date the variation or revocation takes effect, the nature of any variation, and the reasons for the revocation or variation.
Issuing and cancelling evidence of assumed identities
The expression 'issuing agency' means a Commonwealth agency or a non-government body (new section 15XA). In other words, State and Territory agencies-for example, those responsible for issuing birth certificates or drivers licences-do not appear to be covered by the legislation.
A Commonwealth agency that receives a request to issue evidence of an assumed identity:
Where a Commonwealth agency asks a non-government body to issue evidence of an assumed identity, the non-government body may comply with the request but is not required to do so (new section 15XN).
New section 15XO provides that where a Commonwealth agency has issued evidence of an assumed identity it must cancel the evidence on the written request of an authorising person.
New sections 15XP and 15XQ immunise and indemnify Commonwealth employees in issuing agencies from criminal or other liability when they comply with request to supply evidence of an assumed identity.
Offences relating to assumed identities
New section 15XR creates a number of offences relating to assumed identities:
In each case the maximum penalty is imprisonment for 12 months.
New section 15XS criminalises the disclosure of information revealing that:
Miscellaneous provisions relating to assumed identities
If the real identity of a person who has an authorised assumed identity might be revealed in court or tribunal proceedings, then relevant parts of those proceedings must be held in private and appropriate suppression orders must be made-unless the court or tribunal considers that the interests of justice require otherwise (new section 15XT).
'Appropriate records' of authorised assumed identities must be kept by the head of a Commonwealth participating agency while the authorisation is in force and for at least 12 months after it has been revoked (new section 15XU). The expression 'appropriate records' includes authorisations, variations and revocations.
Schedule 3-Protection of children in proceedings for sexual offences
Background-Children's evidence
Children will mostly appear as witnesses in State and Territory sexual offence proceedings. However, they do appear as witnesses in federal proceedings-including criminal proceedings. While the States and Territories have laws protecting child witnesses they do not apply to proceedings for Commonwealth offences. The issue of children's evidence has been examined by the Australian Law Reform Commission (ALRC).(23) In a 1989 discussion paper, the ALRC remarked:
Child witnesses may have special needs in adapting to an adult court-room environment. With cognitive, emotional, physical and communicative abilities differing from adults, they may require additional consideration and different treatment from that given to adults. Failure to recognise and address these special needs can result in both trauma to the child and a breakdown in the fact-finding process essential to the court's role. ... Although empirical data is scarce, over recent years a number of studies of criminal cases have shown that the children involved, especially young children, are emotionally and mentally traumatised due to the experience of giving evidence in court.(24)
Amongst the many recommendations relating to children's evidence made by the ALRC in 1997 were:
The Government has stated that the amendments are consistent with recommendations made by the Model Criminal Code Sexual Offences Against the Person Report.(33)
Item 1 of Schedule 3 inserts new Part 1AD-'Protection of children in proceedings for sexual offences'-into the Crimes Act. New Part IAD applies to those proceedings specified in new section 15Y, including child sex tourism proceedings, proceedings relating to sexual assault of United Nations personnel, proceedings relating to slavery, sexual servitude and deceptive recruiting, and proceedings for associated secondary offences and committals.
New section 15YA is a definitions section. In general, a 'child' is defined as a person under the age of 18. The expression, 'child witness' includes a child who is alleged to have been a victim of one of the offences to which new Part 1AD applies. A 'child witness' includes a child victim.
New section 15YB deals with the admissibility of evidence of a child's sexual reputation in proceedings to which new Part 1AD applies. Unless a child is a defendant in the proceedings, evidence of his or her sexual reputation is not admissible without the leave of the court. A court must not give leave unless it is satisfied that the evidence is substantially relevant to the proceedings. Further, if admitted the evidence cannot be treated as relevant to the child's credibility.
New section 15YC deals with the admissibility of evidence of a child's sexual experience. Unless a child is a defendant in the proceedings, evidence of their sexual experience cannot be admitted unless the court gives leave or the evidence relates to sexual activities with the defendant. A court cannot give leave unless satisfied that the evidence is substantially relevant to facts at issue or relates to credibility and has substantial probative value.
New section 15YD provides that an application for leave to admit evidence of a child's sexual reputation or sexual experience must be in writing and made in the absence of the jury (if the trial is a jury trial). A court granting an application must state its reasons in writing and record those reasons.
New sections 15YE-15YH contain rules about the cross-examination of child witnesses and victims:
Use of closed-circuit television
In general, a child witness must give evidence via closed circuit television. Exceptions to this general rule are that the child is at least 16 years of age and chooses not to give evidence by closed-circuit television, the court orders otherwise or the court is not equipped for closed-circuit television (new section 15YI).
If a child witness gives evidence via closed-circuit television from a place outside the courtroom, then that place is taken to be part of the courtroom and the court can order a court officer or other person to be present (new section 15YJ). If evidence is given by closed-circuit television, arrangements must be made so that those with an interest in the proceeding can see the child and anyone present with the child (new section 15YK). If a child witness' evidence is not given by closed-circuit television, then the court must make arrangements that will minimise the contact between the child and the defendant (new section 15YL).
A court may give leave for a video recording of a child witness' interview to be admitted as evidence in chief (new section 15YM). However, such evidence is not admissible if a court is satisfied that the defendant or their lawyer has not had an opportunity listen to and see the recording (new section 15YN).
If a court allows a child witness' interview to be admitted as evidence in chief, the child must be available for cross-examination and re-examination [new subsection 15YM(4)].
Other provisions relating to child witnesses
The Bill enables child witnesses to choose an adult or adults to accompany them while they give evidence. However, an accompanying adult is prohibited from prompting the child or influencing or disrupting their answers (new section 15YO).
New section 15YQ prohibits a court from warning a jury that the law regards children as unreliable witnesses, or that evidence given by closed circuit television, video recording or when a child is accompanied by an adult should be given greater or lesser weight.
New section 15YR creates an offence of publishing information identifying a child witness or child victim. The maximum penalty is imprisonment for 12 months or 60 penalty units ($6600), or both. However, no offence is committed if the publication is an official publication or the court has given a person leave to publish the information.
Schedule 4-Investigation of Commonwealth offences
Obligations of investigating officials
The Bill inserts a note under the new heading, 'Division 3-Obligations of investigating officials'-that the Division applies both to people lawfully arrested and those taken to be arrested.
A number of the amendments deal with Indigenous people and interview friends. An interview friend is a relative, lawyer or other person chosen by or provided to a person under suspicion or arrest so that they can be present during questioning by investigating officials.(34) As the law stands, an 'investigating official'(35) who:
cannot question the person unless an interview friend is present or the person has expressly and voluntarily waived their right to have such a person present [existing paragraph 23H(2)(a)].
Item 44 amends paragraph 23H(2)(a). Instead of the present provision, amended paragraph 23H(2)(a) will only require an interview friend to be present when a person is interviewed 'as a suspect (whether under arrest or not) for a Commonwealth offence'.
The effect of item 48 is essentially the same as item 44. Item 48 amends paragraph 23K(1)(a) of the Crimes Act so that a person under the age of 18 years cannot be interviewed as a suspect by an investigating official unless an interview friend is present. At present, such persons cannot be interviewed in the absence of an interview friend if an investigating official 'suspects' they have committed a Commonwealth offence or considers, on the basis of information received, that they may be implicated in a Commonwealth offence. Further commentary on these provisions can be found in the Concluding Comments for this Digest.
While the amendments proposed by items 44 and 48 appear to reduce existing rights of Indigenous people who are suspected of committing a Commonwealth offence, those effected by item 45 enhance and clarify some provisions relating to interview friends:
Item 52 repeals and replaces section 23P of the Crimes Act. Existing section 23P provides that if an arrested person is not an Australian citizen, the investigating official must inform the person that he or she may communicate with the consular office of the country of which the person is a citizen and must not commence questioning the person for a reasonable time so that the person can communicate with their consular office.
New section 23P makes a number of changes. The arrested foreign national must be informed that he or she can communicate either with the consular office of the country of which they are a citizen or the country to which they claim a special connection. This amendment is designed to cater for the needs of stateless persons. If the foreign national requests it, the investigating official must notify the consular office and also forward any written communication from the person to the consular office. Any information that must be passed on to the arrested foreign national must be passed on 'as soon as practicable'.
Schedule 5-Listening device warrants
Background-Listening device warrants and Commonwealth laws
Three Commonwealth laws govern the issuing and use of listening device warrants. They are the Customs Act 1901, the Australian Federal Police Act 1979 and the Australian Security and Intelligence Organisation Act 1979. Schedule 5 amends the first two statutes.
Under the Customs Act, listening device warrants can be obtained for the investigation of narcotics offences. Under the Australian Federal Police Act, listening device warrants can be obtained for the investigation of non-narcotics offences categorised as either class 1 general offences or class 2 general offences. Class 1 offences include murder and kidnapping. Class 2 offences include offences carrying a penalty of 7 years or more imprisonment which involve a risk of loss of life, serious personal injury or serious damage to property, drug trafficking etc.
Under the Customs Act and the Australian Federal Police Act, two types of listening device warrant are available:
The meaning of a 'particular person' warrant was considered in the Victorian Court of Appeal case of R v. Nicholas.(38) The amendments in Schedule 5 are a response to that case.
R v. Nicholas involved a controlled operation carried out by the AFP, the Thai police and the Australian Customs Service. As a result of the controlled operation, the accused was convicted of being in possession of trafficable quantity of heroin and of attempting to obtain a commercial quantity of heroin. He was sentenced to 15 years imprisonment. During the controlled operation, the AFP obtained a listening device warrant from the Federal Court under section 219B(5) of the Customs Act. The warrant enabled listening devices to be placed in the bag carrying the heroin and(39)on the Thai agent who delivered the heroin to the accused. Conversations between the accused and his co-accused were recorded by the listening device and admitted into evidence at the accused's trial.
The accused appealed against his convictions on a number of grounds-including the invalidity of the listening device warrant. The warrant issued by a Federal Court Judge referred to a 'particular person, namely a person who obtains or seeks to obtain possession of a bag described as an "ELITE" brand, soft-sided, carry bag on casters, black in colour with brown trimming, containing 24 blocks of compressed white powder ...'.The appellant argued that this warrant did not fall within the terms of section 219B(5) because it was not issued in relation to a 'particular person'.
The Victorian Court of Appeal concluded that the warrant did not identify any individual and that it could have included, during its 28 day period of operation, innocent possessors of the bag such as porters and taxi drivers. It re-iterated the common law principle that the legal system does not recognise general warrants in the absence of specific statutory authorisation. General warrants have long been regarded as invasive and unsusceptible to proper controls. However, the Court did not agree that the evidence obtained from the warrant should be excluded. It rejected any suggestion that the officers obtaining the warrant acted dishonestly and drew attention to the fact that a Federal Court judge had issued the warrant.
Listening device warrants in relation to items
New subsection 12G(5A) of the Australian Federal Police Act enables a Judge or nominated AAT member to issue a listening device warrant in relation to an 'item' if satisfied about the matters listed in new paragraph 12G(5A)(b). These matters include: that the item has been or is likely to be used in relation to the commission of a class 1 or class 2 general offence, information recorded in the vicinity of that item might assist in inquiries about the use of the item in the commission of the offence, and that some or all of the information cannot be obtained by other means or by a particular person or particular place listening device warrant.
Similar amendments are made to listening device provisions in the Customs Act relating to the commission of narcotics offences [new subsections 219B(8A)-(8C)].
Schedule 6-Amendment of the Financial Transaction Reports Act 1988
The Financial Transactions Reports Act 1988 (the FTR Act) establishes AUSTRAC(40), which is an anti-money laundering and financial intelligence agency.(41) AUSTRAC says this about its work:
We work to ensure that financial service providers and other specified groups (our cash dealers) identify their customers and so reduce the occurrence of false name bank and other accounts. Through our compilation and analysis functions, we monitor and identify money laundering related to serious crime and major tax evasion. We provide this financial intelligence to the Australian Taxation Office (ATO) and Commonwealth, State and Territory law enforcement, security and revenue agencies.(42)
Some of the amendments contained in Schedule 6 relate to cash dealers. Under the FTR Act, cash dealers are required to report certain transactions to AUSTRAC and ensure that all account signatories are identified. The transactions that cash dealers must report are:
Items 1 and 2 of Schedule 6 amend the definition of 'cash dealer' in subsection 3(1) of the FTR Act by:
Item 4 inserts new section 17J into the FTR Act. New section 17J provides that information about a specific financial transaction received by AUSTRAC as a result of a request to a foreign country or agency will be covered by the FTR Act. As a result the FTR Act's secrecy and access provisions will apply to that information.
Paragraph 27(1)(b) of the FTR Act enables the Director to authorise a law enforcement agency to access FTR information for the purposes of performing its functions. Item 5 inserts new subsection 27(1B) which states that the Queensland Crime Commission and the Western Australian Anti-Corruption Commission can only be given access to FTR information if they undertake to comply with the Commonwealth's information privacy principles.
Items 6 and 7 amend subsections 27(16) and (17) of the FTR Act so that officers of the Queensland Crime Commission and the Western Australian Anti-Corruption Commission can access FTR information.
Schedule 7-Pardons, quashed convictions and spent convictions
Part VIIC of the Crimes Act applies to free and absolute pardons, quashed convictions and spent convictions. It provides that individuals who have been pardoned or had their convictions quashed are not required to disclose them. Individuals who have minor convictions are not required to disclose them after a specified period. Part VIIC also prohibits organisations and individuals taking those convictions into account or disclosing them without the consent of the person. However, a person with a spent conviction must disclose that conviction to a 'law enforcement agency' in a number of circumstances. Additionally, spent convictions can be taken into account by law enforcement agencies for certain purposes. These circumstances and purposes include-decision making about sentencing or prosecution, and assessing prospective employees.(43)
Section 85ZL of the Crimes Act defines the expression 'law enforcement agency' to include the AFP, State and Territory police forces, Customs, the NCA, and the National Exchange of Police Information (NEPI). NEPI was established in 1990 by Australian police ministers to promote the exchange of operational policing information between jurisdictions. NEPI has been replaced by the CrimTrac Agency which was established on 1 July 2000.
Item 1 of Schedule 7 removes the reference to NEPI in section 85ZL and replaces it with a reference to the CrimTrac Agency.
Two Senate Committees have examined the Measures to Combat Serious and Organised Crime Bill 2001. Comments made by the Senate Standing Committee for the Scrutiny of Bills can be found in:
The Senate Legal and Constitutional Legislation Committee reported on the Bill in June 2001.(44) It is not possible to traverse all the comments made in the reports or in submissions and oral evidence given to the Senate Legal and Constitutional Legislation Committee. However, some of matters raised by or with the Senate Committees are mentioned briefly below.
The Senate Legal and Constitutional Legislation Committee expressed its concern that:
... very little explanation or reason for the amendments [was provided], and almost no detail on who is affected by them or to whom they may apply.(45)
On the other hand, the Government recorded its commitment to:
... a modern, effective approach to law enforcement. In the twenty-first century we cannot afford to assume that laws and procedures that were adequate 5, 10 or 15 years ago are appropriate today. Some parts of Commonwealth investigation and procedural law are in need of updating and reform ...
The Bill contains a wide-ranging package of measures to facilitate the investigation and prosecution of serious and organised crime.(46)
As a general matter, the Committee recommended that 'serious and organised crime' should be defined for the purposes of the Bill. Such a definition would limit the Commonwealth offences that could be the target of a controlled operation. It is not clear whether the Committee also wanted the assumed identity provisions in the Bill to be limited to 'serious and organised crime' investigations.
The Bill enables the Australian Customs Service to authorise controlled operations. Questions about these amendments were raised by and in evidence to the Senate Legal and Constitutional Legislation Committee. The Committee's majority report supported the extension of Customs' powers. It made the point that Customs is a law enforcement and regulatory agency and commented that government agencies had not opposed the amendments. However, it recommended that Customs officers undertake training at the direction of the AFP.(47) The minority report of the Committee's Labor Senators recommended that Customs should not have the power to authorise controlled operations. Labor Senators took the view that Customs is neither focused on organised crime nor a law enforcement agency with appropriate institutional structures, culture, training or accountability mechanisms.(48)
Different views were taken by Committee members about who should authorise controlled operations. The majority report concluded that authorisation should be an 'in-house' process.(49) Labor Senators recommended that the controlled operations provisions should not proceed unless they are redrafted to implement all the recommendations made by the Parliamentary Joint Committee on the National Crime Authority report, Street Legal. This would include a two-tier approval process with minor controlled operations being authorised internally and major operations subject to external approval.(50) The Australian Democrats minority report recommended that long-term or serious controlled operations should be subject to external approval by a judicial officer.(51)
The Bill contains a re-worded 'no entrapment' provision.(52) Before issuing a controlled operations certificate, an authorising officer must be 'reasonably satisfied' that conducting the operation will not involve intentionally inducing a person to commit a Commonwealth, State or Territory offence they would not otherwise have intended to commit. In its Eighth Report, the Senate Standing Committee for the Scrutiny of Bills asked whether 'inducing a person to commit a more serious offence (eg, importing much larger quantities of drugs) would constitute "inducing" a person to commit an offence under the bill'.(53) Another question that could be asked is how an authorising officer can be reasonably satisfied that the conduct of the controlled operation will not intentionally induce a person to commit an offence that he or she would not have otherwise committed-given the very large number of Australian statutory and common law offences.
Amendments relating to assumed identities were generally supported by law enforcement agencies who appeared before the Senate Legal and Constitutional Legislation Committee. However, concerns were expressed in some submissions-for instance, those from the Victorian Bar and the Criminal Bar Association.
Among the issues raised about the assumed identity amendments were the absence of provisions for a central register of assumed identities. The Committee remarked:
there appears to be no provision whereby a central body has knowledge of all those 'persons' [with assumed identities], how long the identity has operated, and whether it is likely to continue. Nor is there any clear guidance on the termination of any identity, except at the request of the authorising officer. In theory, the identity could continue to exist and be re-activated when required, without a new authorisation. In addition, the provision concerning being 'unaware of the variation or revocation' of an identity, may allow too much flexibility for some individuals.(54)
The majority of Committee members recommended that consideration be given to audits of assumed identities by an external agency such as the Privacy Commissioner.(55) This view was supported in the minority report.(56)
Other questions raised in various quarters about the assumed identity provisions include:
The evidence of child witnesses and victims in sexual offence proceedings
Many submissions to the Senate Legal and Constitutional Legislation Committee supported the amendments relating to child witnesses and victims. Both the majority and minority Committee reports also commended Schedule 5. Some issues raised about the amendments were:
Investigation of Commonwealth offences
Schedule 4 of the Bill amends provisions in the Crimes Act that stipulate when investigating officials must question Indigenous people and minors in the presence of interview friends. Essentially, the existing requirement is that questioning cannot occur in the absence of an interview friend if the investigating official suspects that an Indigenous person or a juvenile has committed a Commonwealth offence or has information that the person may be implicated in such an offence. The amendments will only require an interview friend to be present if the Indigenous person or juvenile is being 'interviewed as a suspect'.
Referring to the amendments relating to Indigenous people, the Explanatory Memorandum states that:
The proposed amendment will make the application of interview friend provisions consistent with the requirements of the tape recording [of confessions and admissions] provisions [which apply where the person is being 'interviewed as a suspect (whether under arrest or not)"]. This will mean that the requirement to cease questioning a person, unless they have access to an interview friend, will apply where an investigating official interviews a person as a suspect ... rather than in the current wider circumstances.(68)
The current provisions in the Crimes Act appear to be based on the recommendations of the Gibbs' Review of Commonwealth Criminal Law, the draft bill which accompanied its interim report, Detention Before Charge(69), and an earlier draft bill prepared by the ALRC.(70) Special protections for Indigenous people in the criminal justice system have been supported as a special measure under Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination. When introduced in 1990, the amendments were said to respond to the Interim Report of the Royal Commission into Aboriginal Deaths in Custody which identified the risks associated with the initial period in custody.(71) They are also in keeping with the Royal Commission's Final Report.(72)
In relation to children and interview friends, the ALRC stated in 1997 that, 'The presence of the interview friend is an important means of compensating for the disadvantage experienced by young people when being interviewed'.(73) It referred to those disadvantages as being '... vulnerability to pressure, socialisation to agree with adult authority figures, lack of verbal fluency and a tendency to make false confessions under expert or hostile questioning'.(74)
Listening device warrants for 'items'
The majority report of the Senate Committee recommended that a time limit be placed on the operation of particular item warrants.(75) Submissions to the Committee by the Victorian Bar and the Criminal Bar Association expressed concerns about warrants for 'items'. The Victorian Bar objected to the provisions as amounting to a general warrant and a serious invasion of privacy. The Criminal Bar Association acknowledged the difficulties faced by law enforcement agencies as a result of the decision in R v. Nicholas but rejected any use of the provisions that would effectively result in the grant of a general warrant-for example, 'releasing an item into the general community with the intention of gathering such criminal intelligence as may be detected thereafter'.(76)
Jennifer Norberry
13 August 2001
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.
ISSN 1328-8091
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Published by the Department of the Parliamentary Library, 2001.