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Monday, 6 December 1999
Page: 12797

Mr NUGENT (1:18 PM) —On behalf of the Parliamentary Joint Committee on the National Crime Authority, I present the report of the committee entitled Street legal: The involvement of the National Crime Authority in controlled operations , together with evidence received by the committee.

Ordered that the report be printed.

Mr NUGENT —The report Street legal examines the NCA's involvement in controlled operations, and the adequacy of the current legislative arrangements. The report recommends wider powers for covert investigations, matched by a more independent approval and accountability system. In controlled operations, police, agents or informants work under cover and become involved in illegal activity in order to investigate more serious criminality, such as the drug trade. A recent report by the Queensland Crime Commission estimated that law enforcement recovers only about 1.3 per cent of the heroin available annually on the Queensland market. Therefore, to be effective, law enforcement needs to infiltrate the sophisticated organisations behind the drug trade and gather intelligence about how they operate. The same applies to criminal organisations involved in other kinds of organised crime.

Controlled operations legislation immunises law enforcement officers against the consequences of their unlawful actions and secures the admissibility of the evidence obtained. But it also imposes statutory limitations and appropriate accountability. Across Australia, however, legislation differs. Under the Commonwealth regime in part 1AB of the Crimes Act 1914, the NCA is only covered in relation to controlled operations in the investigation of offences involving the importation of narcotics. New South Wales and South Australia also enacted controlled operations legislation, but those schemes differ from the Commonwealth regime in a number of respects. Other jurisdictions, such as Queensland, have no legislation at all. As the NCA operates on a national basis, it is severely hamstrung by the disparate arrangements between the states and territories. The committee urges the states and territories either to introduce uniform legislation or promote national uniformity to ensure the NCA's effectiveness in counteracting organised crime.

This report recommends expanding the scope of controlled operations to the range of offences that the NCA is able to investigate under the National Crime Authority Act 1984. The NCA could then conduct controlled operations, in relation to other organised crime, with legislative approval. In particular, the NCA should be able to conduct controlled deliveries of cash to follow the money trail to the core of a criminal enterprise.

Civil liberties groups claimed that the current internal approval process for controlled operations allows room for the inappropriate use of power. Law enforcement agencies argued that an external approval system would adversely affect operational efficiency. On balance, the committee recommended a two-tiered approval process, requiring external approval for longer-term operations. The current arrangements for urgent approval should be retained for where, say, drugs arrive at the barrier.

In relation to accountability, the committee was concerned that an appropriate balance should be struck between transparency and operational necessity. The committee decided that the regime implemented in New South Wales, involving independent oversight by the Ombudsman, is the preferred option.

Other significant recommendations include: extending the period of the validity of certificates authorising controlled operations from one month to three months; adopting the strictly limited provision in the New South Wales model for retrospective approval of controlled operations where the unlawful conduct was engaged in solely for the purpose of preventing death or serious injury; and extending the immunity under the act to innocent civilians who assist police. The situation of informants who assist police, however, is different. We believe the current arrangements, where certain representations can be made on their behalf during the prosecution process or at the time of sentencing, are appropriate.

I express my appreciation to the officers of the secretariat: Mick McLean, the committee secretary; Yvonne Marsh, the inquiry secretary, and Debbie McMahon, the executive assistant. I commend the report to the House.