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Wednesday, 29 May 1996
Page: 1274


Senator SPINDLER(12.35 p.m.) —I seek leave to move, as a block, my revised amendments to the Crimes Amendment (Controlled Operations) Bill 1996.


Senator Vanstone —Leave is granted, but this might be the appropriate place to put forward a suggestion for the ordering of the debate, which Senator Bolkus may also have a view on. I think it would be sensible to deal with all the amendments in three parts: firstly, judicial authorisation, items 1 to 7 and 10 to 11; secondly, notification to Customs, items 8 and 9; and, thirdly, tendering of the certificate, item 12. I am interested in whether Senator Bolkus and Senator Spindler are happy to deal with them in that order and move them in that way. I think that is just a rational splitting up of the issues.


Senator Bolkus —We do not have any problem with that. Our intention is to expedite this discussion, and I think the proposal suggested by Senator Vanstone is one that does that very well.

Leave granted.


Senator SPINDLER —I move:

1   Schedule 1, item 1, page 3 (lines 28 to 30), omit the definition of authorising officer, substitute:

   senior law enforcement officer in relation to an application for a certificate authorising a controlled operation, means:

   (a)   the Commissioner, a Deputy Commissioner or an Assistant Commissioner; or

   (b)   a member of the National Crime Authority.

2   Schedule 1, item 2, page 6 (before line 3), before section 15H, insert:

15GA Interpretation

(1)   In this Division:

   eligible Judge means a Judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force.

   Judge means a person who is a Judge of a court created by the Parliament.

(2)   A Judge may by writing consent to be nominated by the Minister under subsection (3).

(3)   The Minister may by writing declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Division.

(4)   An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

3   Schedule 1, item 2, page 8 (line 1) to page 9 (line 35), omit sections 15J to 15M, substitute:

15J Application for certificate authorising a controlled operationby whom and to whom made and on what grounds

(1)   A senior law enforcement officer may apply to an eligible Judge for a certificate authorising a controlled operation on receipt of an application under section 15K or 15L from an Australian law enforcement officer (the applicant) who is in charge of a controlled operation if the senior law enforcement officer is satisfied that:

   (a)   the applicant has provided as much information as is available to the applicant about the nature and quantity of narcotic goods to which the controlled operation relates; and

   (b)   the person targeted by the controlled operation is likely to commit an offence against section 233B of the Customs Act 1901 or an associated offence whether or not the controlled operation takes place; and

   (c)   the controlled operation will make it much easier to obtain evidence that may lead to the prosecution of the person for such an offence; and

   (d)   any narcotic goods:

      (i)   to which the operation relates; and

      (ii)   that will be in Australia at the end of the controlled operation; will be then under the control of an Australian law enforcement officer.

(2)   In an application to an eligible Judge under subsection (1), a senior law enforcement officer must provide sufficient information, orally or otherwise as the Judge requires, to enable the Judge to be satisfied that:

   (a)   the person targeted by the controlled operation is likely to commit an offence against section 233B of the Customs Act 1901 or an associated offence whether or not the controlled operation takes place; and

   (b)   the controlled operation will make it much easier to obtain evidence that may lead to the prosecution of the person for such an offence; and

   (c)   any narcotic goods:

      (i)   to which the operation relates; and

      (ii)   that will be in Australia at the end of the controlled operation; will be then under the control of an Australian law enforcement officer.

15JA Urgent application for a certificate authorising a controlled operation

(1)   If a senior law enforcement officer receives an application under section 15L, the senior law enforcement officer may apply by telephone to an eligible Judge.

(2)   The information given to an eligible Judge in connection with a telephone application to the Judge:

   (a)   must include particulars of the urgent circumstances because of which the senior law enforcement officer thinks it necessary to make an application by telephone;

   (b)   must include each matter that, if the application had been made in writing, paragraphs 15K(b), (c) and (d) would have required the application to state, contain or be accompanied by; and

   (c)   must be given orally or in writing, as the Judge directs.

15K Form and contents of application to a senior law enforcement officer

Subject to section 15L, an application to a senior law enforcement officer must:

   (a)   be in writing signed by the applicant; and

   (b)   state whether any previous application has been made in relation to the operation; and

   (c)   if any previous application has been made—state whether it was granted or refused; and

   (d)   contain, or be accompanied by, such information, in writing, as the senior law enforcement officer requires to decide whether or not to apply to an eligible Judge for a certificate authorising a controlled operation.

15L Urgent applications to a senior law enforcement officer

(1)   An applicant may make an application under this section to a senior law enforce ment officer if he or she has reason to believe that the delay caused by making an application that complies with section 15K may affect the success of the operation.

(2)   The application may be made:

   (a)   orally in person; or

   (b)   by telephone; or

   (c)   by any other means of communication.

(3)   The applicant must give to the senior law enforcement officer, either orally or otherwise, such information as the senior law enforcement officer requires to decide whether or not to apply to an eligible Judge.

(4)   The applicant must tell the senior law enforcement officer:

   (a)   whether any previous application has been made in relation to the operation; and

   (b)   if any previous application has been made—whether it was granted or refused.

(5)   The applicant must, as soon as practicable, prepare and give to the senior law enforcement officer an application, in writing, that complies with section 15K.

15M Issue by an eligible Judge of a certificate authorising a controlled operation

If an eligible Judge is satisfied on information on oath by a senior law enforcement officer in accordance with subsection 15J(2), the eligible Judge may, in his or her discretion, issue a certificate authorising a controlled operation.

4   Schedule 1, item 2, page 10 (line 3), omit "the authorising officer", substitute "the Judge who issues it".

5   Schedule 1, item 2, page 10 (line 23), omit "the authorising officer", substitute "the Judge who issues it".

6   Schedule 1, item 2, page 10 (lines 27 to 30), omit subsection 15N(3).

7   Schedule 1, item 2, page 11 (lines 9 to 15), omit subsections 15P(1) and (2), substitute:

(1)   A certificate authorising the controlled operation comes into force at the time when it was given.

10   Schedule 1, item 2, page 12 (lines 14 to 31), omit subsections 15R(1) to (3), substitute:

(1)   As soon as practicable after an eligible Judge has granted to an Australian law enforcement officer a certificate authorising a controlled operation, the Commissioner or the Chairperson of the National Crime Authority, as the case may be, must inform the Minister of that application and the reasons for that application.

(2)   The reasons given in support of an application referred to in subsection (1) must include (but are not limited to) an indication of the seriousness of the criminal activities of:

   (a)   the person targeted by the operation; or

   (b)   any other person associating, or acting in concert, with that person or using, directly or indirectly, the services of that person to further his or her own purposes.

11   Schedule 1, item 2, page 14 (lines 1 to 5), omit paragraphs 15S(4)(a) and (b), substitute: "by the Commissioner or the Chairperson of the National Crime Authority, as the case may be."

These amendments on the judicial authorisation are directed towards ensuring that, when a controlled operation is to be undertaken, careful thought be given before such an operation is approved. We need to remember that what is being done through this legislation is to authorise police officers to participate in unlawful acts.

The amendments, as they are now before the Committee, seek to ensure that, before such an operation can proceed, the law enforcement officer who is in charge of the operation in the first instance approaches the relevant senior law enforcement officer—the commissioner, deputy commissioner or a member of the NCA. That officer, having satisfied himself that he supports what is being asked for—namely, the authorisation of a controlled operation—would then approach a judge to seek final approval.

A number of concerns have been raised about this procedure. It has been said that it is cumbersome. Well, so be it. As I have said, we are here in a situation where we are authorising unlawful behaviour. The Democrats feel that we need to be extremely careful in that situation.

The other concern raised was that we are running close to interfering with the principle of the separation of powers by involving judges in an operational or semi-operational decision. There are numerous examples in legislation, a couple of which have already been canvassed during the second reading debate, where this is already occurring.

I have mentioned the simple area of search warrants. We all know that intercept warrants for telephone conversations must also be given judicial approval. There are other acts which can be mentioned. The World Heritage (Properties Conservation) Act 1983 requires a judge to approve a warrant for entry and search; the AFP Act requires warrants for the use of listening devices; the Bankruptcy Act requires warrants for the seizure of property—and so on. The principle is well established.

The final comment that was made was of a practical nature: that judges are reluctant to undertake that task. There is then the question of what occurs if it is difficult to get judges to do that? I believe that is a consideration we need to test. I think we need to be told whether or not judges are, in fact, going to refuse to act in this particular manner when they are asked to do so. I believe that these amendments, taken together, are a distinct improvement to the bill that is before the committee. I commend them to the committee.