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Wednesday, 29 May 1996
Page: 1345

Senator VANSTONE (Minister for Employment, Education, Training and Youth Affairs)(5.41 p.m.) —While the officers are considering the remarks made by Senator Bolkus, let me respond to what Senator Cooney suggested. I was working on what he suggested, and this may well be the same point. It seems to me that, in not allowing a certificate to be presented that says to a magistrate a judge has satisfied himself that a person was to commit an offence, you are suggesting the certificate should say that a judge was satisfied that the policeman was satisfied, which does not seem to me to be a very substantial improvement at all.

In fact, if you want to put it in the words of someone who might be wanting to point the bone and accuse—bearing in mind you are now thinking of this from the position of an innocent person—they might say to a jury, `Look. You've heard what the police have told you. They were involved in this controlled operation. You've heard that this was all about being satisfied that someone had committed an offence. The police went along and this judge, a judicial officer, was satisfied that they were telling the truth.' That is incontestable. The judge could not satisfy himself that the police were satisfied if he thought they were lying. That is what I would say. I would be on my feet quick as a whip and saying, `This is what the situation is: a judicial officer has listened to the police and is satisfied that the police were telling the truth—this person was likely to commit an offence.' Too right I would be.

So I do not think you help yourselves with that proposition. I understand what you are looking for. I just do not think you can find a mechanism which will both be constitutionally sound and protect parties who may be innocent. I could turn around the Wood royal commission evidence and ask whether you in your heart of hearts believe that every person charged with an offence is guilty. If you do believe that, you could scrap the criminal law. You would not need the defence of the innocent. But, presumably, you do not believe that.

Sadly, there are cases where—I am not sure that they have been reported in the Wood royal commission but we have all had anecdotal evidence about this and have read about it in the papers—people have been set up by the police. So we do need to have adequate protections for the innocent as well—and that was the balance that former minister Kerr was talking about. We have people peddling these drugs around out there and we want to get at them. We want to make sure they are locked away. But, in the rush to do that, do not forget people are innocent until proven guilty; do not forget that sometimes people are set up; and do not forget that sometimes things are not as they seem and that the wrong person can be charged. There are two things to balance in this respect.

I also make this point: the dual approval process that you are seeking will ensure that urgent certificates—these crooks do not ring up and say, `Listen, it's happening next week; you've got seven days to organise yourselves,'—will rarely be available. It is apparently a frequent occurrence that the customs service or the AFP will detect at the barrier a person carrying narcotics who will advise—often enough, I suppose—that he or she is to deliver the drugs to a person at a particular place. That is when we might want to move into a controlled operation. The window of opportunity for conducting such a controlled operation in these circumstances is not likely to be large. They are not going to detect someone at an airport with a bucket load of drugs who says, `By the way, I'm delivering these in a fortnight's time. Take all the time you want to find someone suitable to approve this.' It is not going to happen like that.

It may well be the case that someone is coming in with a significant quantity of drugs and going out the next day or that afternoon. There is not a lot of time here, and the need to involve both a senior official and a judge will probably ensure that in these instances a controlled operation is unlikely to be possible.

What will be the consequences of that? And we add on the burden that you are taking upon yourselves. I have already indicated the burden about an innocent person being affected by the process that you want and perhaps improperly convicted, and that is by having the judicial officer come to the conclusion, in your modified version, that the judicial officer is satisfied that the police were satisfied, which means the judicial officer believed the police were telling the truth. If that is not against an accused, I am at a loss to imagine what that, other than a confession, would be. You have got that burden; you have got the constitutional burden that people might be walking free because you are prepared to take a risk, because you wanted the balance to go the other way.

Then you have got this burden, too: where things do happen, there is a short space of time available and you do want to get a controlled operation in, what will happen by the dual process being required is that, yes, the courier will be arrested. I do not have any sympathy for couriers. But you and I know, Senator Spindler, that they are not the ones. You know that, Senator Bolkus knows that, Duncan Kerr knows that and Michael Lavarch knows that. So what will happen? The courier, probably some unemployed person who has been sucked in by these creeps and given what they think is a fortune in money, has taken a chance. You will catch that person, sure. They will be arrested and will probably go to gaol. But what will happen? The importer will go free. So you can add that on to the burden.

The other point I want to make with respect to this suggestion is this: the decision to authorise a controlled operation will be an administrative decision which will come under attack at a subsequent trial. That is the case irrespective of your change. It is still an administrative decision that is going to come under attack at a subsequent trial. The decision by the judge really would seem to duplicate that of the authorising officer, but it is the final decision authorising the conduct of a controlled operation—not making an on- balance decision as to rights and liberties.    Accordingly, it is almost certain that the judge will be subject to cross-examination to ascertain how it is that he or she was satisfied of the requirements set out in proposed section 15M, which would include under the modified version how he or she was satisfied that the police were telling the truth, that they were genuinely satisfied that this person was likely to commit an offence.

We say that is clearly an inappropriate position in which to put a judge and is a position which no judge is likely to accept. You have to understand that what you are asking of them is qualitatively different from that which is asked of them in a telecommunications intercept. What you are asking is several steps up the ladder. We do not believe judges will be likely to accept this task. We point out there are already problems with respect to telecommunications interception matters. If you do not think those problems will be multiplied with respect to this, again, I say: on your shoulders.