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Wednesday, 4 April 2001
Page: 23615

Senator IAN CAMPBELL (Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts) (9:31 AM) —I table the explanatory memorandum and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This Government is committed 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, so I have brought forward the Measures to Combat Serious and Organised Crime Bill.

The Bill contains a wide-ranging package of measures to facilitate the investigation and prosecution of serious and organised crime.

Controlled Operations

Schedule 1 to the Bill contains a new scheme for the conduct of controlled operations. In a `controlled operation', law enforcement officers allow criminal activity to proceed, in order to gain evidence of the broader criminal scheme. Modern criminal enterprises are often complex and sophisticated. Controlled operations are, therefore, a vital criminal investigation tool. A central objective is to allow the apprehension and prosecution of the organisers and financiers of serious criminal activity. These people hide behind couriers and intermediaries, hoping that if anything goes wrong these small fry will take the fall.

The importance of controlled operations as an investigative tool has been recognised in a number of forums, both national and international. For example, Article 20 of the recently negotiated United Nations Convention Against Transnational Organised Crime urges State Parties to take measures to allow for the appropriate use of controlled delivery. In an Australian context, the Wood Royal Commission into the NSW Police Service was supportive of controlled operations legislation on the basis that it would introduce greater regularity and certainty into undercover operations and resolve concerns about the criminal and civil liability of officers and civilians assisting them.

The existing provisions were enacted in 1996, in the aftermath of the High Court's decision in Ridgeway v R (1995) 184 Commonwealth Law Reports 19. Since then New South Wales and Queensland have joined South Australia in enacting much broader provisions. The Parliamentary Joint Committee on the National Crime Authority has also issued the `Street Legal' Report on controlled operations, containing numerous recommendations that are picked up in this Bill.

Under the existing Part 1AB of the Crimes Act 1914, controlled operations can only be authorised in relation to the investigation of certain narcotics offences. Controlled operations certificates can only continue for a maximum of 30 days with no scope for variation. Furthermore, the resulting immunity from criminal liability only extends to narcotics offences, and only to law enforcement officers. There is no provision for a civil indemnity.

This means that the important controlled operation technique is unavailable to investigate other forms of serious criminal activity, including money laundering, various forms of trafficking and smuggling, and corruption and bribery. Nor is there any ready means to infiltrate criminal groups on a longer term basis, or to reassure informants or civilians that if they are needed to participate in an operation, they will not be criminally liable.

The new regime removes these limitations. An operation would be able to be initiated in relation to any Commonwealth offence, as long as detailed authorisation criteria are followed. There would be scope for a certificate to remain in force for up to 6 months, subject to a mandatory review after 3 months, and certificates would be able to be varied. Law enforcement officers, and other persons specified in a certificate, would have access to criminal immunities and civil indemnities, subject to appropriate limitations.

Under the broader arrangements, senior officers of the Australian Customs Service would join senior officers of the Australian Federal Police and National Crime Authority in having the capacity to authorise operations.

These powers are necessary; but so are adequate controls and safeguards to reassure the community that the powers will be exercised in a responsible manner. The prohibition on entrapment would remain. There would be no scope to authorise sexual offences or the causing of death or serious injury. Certificates would be able to lay down binding conditions on those participating in operations, and would have to specifically identify any non-law enforcement officer and describe the nature of the activities in which he or she may engage.

Another important stipulation in the legislation is that controlled operations indemnities and immunities cannot be used as a de facto means to avoid other requirements of criminal investigation law, for example, relating to search warrants, forensic procedures or listening devices. More broadly, unlawful activity would be limited to the maximum extent consistent with an effective operation.

Consistent with the broader scope of the new provisions, more detailed operating requirements would apply. The Australian Federal Police, National Crime Authority and Australian Customs Service would be required to report to the Minister every 3 months, within two weeks of the end of the relevant 3 month period. The report would have to separately identify each ongoing operation, and outline (among other things) the reasons for each decision relating to authorisation, variation or review during that period. As an additional amendment, the Minister would be able to request additional information from the reporting agency. The existing requirements for reporting to Parliament under section 15T of the Crimes Act 1914 would remain but would also cover the extra material to be reported to the Minister.

Assumed Identities

Schedule 2 to the Bill contains a framework to govern the use of assumed identities where there is a Commonwealth agency involved, either as the issuer of the identity or as the agency authorising the use of the identity.

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.

The Commonwealth currently lacks specific legislation permitting the acquisition and use of assumed identities by law enforcement and intelligence agencies. The need for legislation to regularise the creation and use of false identities by undercover officers was recognised by the Wood Royal Commission. The New South Wales Law Enforcement and National Security (Assumed Identities) Act 1998, which was enacted the year following the Wood Royal Commission, makes available evidence of identity from New South Wales Government agencies (such as birth certificates and driver licences) and non-government bodies. However, the New South Wales Act cannot be used to obtain essential Commonwealth documents (such as passports and Medicare cards) required to support investigations involving assumed identities.

The agencies expressly authorised to use the scheme under the legislation would include the Australian Federal Police, National Crime Authority, Australian Customs Service, Australian Security Intelligence Organisation, Australian Secret Intelligence Service, and State and Territory Police Services and anti-corruption agencies.

Law enforcement and intelligence functions are often performed jointly on State/Territory and international bases. The proposed legislation would also enable Commonwealth, State and Territory agencies to obtain evidence to support assumed identities in such cases, and use them overseas as appropriate.

Officers and others who use an assumed identity in an authorised manner would not be criminally liable for that deception, and, where such use is authorised by a Commonwealth agency, they would be indemnified by the Commonwealth for any civil liability. This means that a third party who suffers loss would have a right of recovery against the Commonwealth.

Commonwealth to Commonwealth requests for the issuing of assumed identities would be binding, so that there is a clear and straightforward line of decision making authority within the Commonwealth. In the case of State or Territory to Commonwealth and Commonwealth to private agency requests, the issuing agency would have a discretion whether to comply.

Underlying controls and safeguards, such as police disciplinary regimes, would be supported by a number of specific provisions in the legislation. There would be no authority to exercise a specialised skill or qualification attaching to an assumed identity, such as a pilot's licence, that the person does not have in their true identity. Misuse of an assumed identity would be an offence carrying up to 12 months imprisonment. Misuse would also mean that criminal immunity and civil indemnity would be lost.

Commonwealth agencies would have to retain relevant records while an authorisation is in force and for 12 months afterwards and cause those records to be audited at least once in every 6 months while the authorisation is in force and once in the 6 months afterwards.

Costs to a Commonwealth agency would be met from existing agency budgets and agencies that seek documentation would pay fees and any additional, related costs incurred by issuing bodies.

Child Witness Protections

Schedule 3 to the Bill contains important new protections for child victims and child witnesses in Commonwealth sex offence trials. The proposed protections would apply to witnesses and victims under the age of 18 in proceedings for Commonwealth sexual offences, including child sex tourism and sexual servitude offences. Children will often be vital witnesses in proceedings for these offences and it is important that they are able to give their evidence as freely and openly as possible.

The protective provisions recognise that child victims and child witnesses in sex offence proceedings are particularly vulnerable because of their age and the nature of the crime involved. The provisions are intended to minimise the distress and trauma experienced by child victims and child witnesses in giving evidence and to protect the privacy of child victims and witnesses.

In recent decades, States and Territories have developed provisions to protect children from inappropriate cross-examination and make the process of giving evidence less intimidating. However, although Commonwealth sex offence trials are held in State and Territory courts, State and Territory child witness protections apply only to State and Territory offences and not to Commonwealth offences. The proposed provisions would remedy the absence of safeguards for child witnesses in Commonwealth sex offence trials.

The proposed protections are analogous to those already existing in many State and Territory jurisdictions and are consistent with recommendations in the Model Criminal Code Sexual Offences Against the Person Report.

Evidence relating to the sexual reputation or sexual experience of child victims and child witnesses would only be able to be admitted with the leave of the court. It is well documented that sexual offence trials have often involved the use of evidence of sexual activity unconnected with the alleged crime to inflict unjustifiable damage on the character and reputation of a complainant and cause inappropriate humiliation and embarrassment. The requirement that the court be satisfied that such evidence is of substantial relevance to the facts at issue in the trial before allowing it in, would ensure that child victims and witnesses are protected from the misuse of such evidence.

Child witnesses would be able to give evidence by means of closed-circuit television. If the court is not equipped with such facilities, alternative arrangements such as screens and planned seating arrangements would be used to restrict the child's contact with the defendant and members of the public. A child witness can be intimidated and distressed by having to appear in an open court. Allowing a child witness to testify by means of closed-circuit television would minimise the trauma of giving evidence by enabling the child to give his or her evidence in a less formal and more private environment. As a consequence, the child would be better able to focus on questions being asked.

Children giving evidence in a proceeding would also be able to be accompanied by an adult of their choosing, including while giving evidence by means of closed-circuit television. The role of the accompanying adult would be to provide the child with reassurance and support while he or she is testifying. Any prompting or influencing of the child's answers by the accompanying adult would be expressly prohibited and the court would be able to veto a child's choice of adult if it is inappropriate.

Under the amendments, it would be an offence for a person to publish details which identify a child witness or child victim, unless the court gives the person leave to publish. The offence would attract a maximum penalty of 12 months imprisonment and/or a $6600 fine. The prohibition on publication is to protect the privacy of child victims and child witnesses and prevent them from being subjected to further victimisation as a result of being identified in connection with sex offence proceedings. The onus is placed on a person who wishes to publish identifying details to apply for leave to do so, as the prevention of the further trauma to the child victim or child witness would in most cases outweigh any public interest in knowing the identity of the child.

Part 1C Amendments

Most of the amendments in Schedule 4 to the Bill are the result of a review of Part 1C of the Crimes Act. Part 1C allows investigating officials to lawfully detain suspects for questioning and confers a range of rights and protections on suspects. The amendments to Part 1C seek to clarify the operation of the Part and improve the effectiveness of existing mechanisms.

One of the objectives of clarifying the operation of Part 1C is to ensure that safeguards contained in the Part are given full effect. For example, Part 1C distinguishes between persons who are lawfully arrested and those who are deemed to be arrested for the purpose of applying certain rights and protections under the Part. Police are only authorised to detain persons who are lawfully arrested. The distinction is important in ensuring that persons who believe they would not be able to leave if they wished to do so are afforded the same rights and protections as persons who have been lawfully arrested. The existing Part 1C does not make this distinction as clearly as it could. Proposed amendments would provide the desired clarity.

The amendments to Part 1C would also enhance some safeguards in the legislation. For example, the amendments would clarify that a suspect cannot be detained on the pretext of `holding charges' and would allow greater rights of communication with consular officials for foreign nationals and stateless persons.

Some problems that have hampered effective law enforcement would be addressed. For example, one of the proposed amendments would remove the existing barrier to re-arrest and detention of a suspect within 48 hours of a prior detention period, if a new offence or suspicions relating to a new set of circumstances arise.

Schedule 4 also contains minor amendments to Crimes Act provisions other than in Part 1C. These would clarify when a search warrant ceases to be in force, allow for recording of a telephone application for a search warrant and clarify the relationship between strip search and forensic procedure powers.

Listening Device Warrants

Schedule 5 to the Bill contains proposed amendments to the provisions in the Customs Act 1901 for use of listening devices in relation to narcotics offences and the analogous provisions in the Australian Federal Police Act 1979 for use of listening devices in relation to specified serious offences. The amendments would permit the issue of a warrant authorising the use of a listening device in respect of a particular item where a suspected offender cannot be identified. Existing provisions only allow listening device warrants to be issued in respect of a particular person or particular premises.

The Supreme Court of Victoria recently held in R v Nicholas that a warrant identifying a person only by reference to their anticipated collection of a particular item did not sufficiently identify a particular person, and therefore was not authorised by the Customs Act warrant provisions. The Nicholas decision meant, for example, that where law enforcement authorities knew a particular bag or other item contained drugs but did not know the identity of the person who was to collect them they were unable to use a listening device. The proposed new provisions would overcome practical problems caused by this decision.

FTR Amendments

Schedule 6 to the Bill contains proposed amendments to the Financial Transaction Reports Act 1988 to clarify and update the operation of the Act. Most notably, the definition of a `cash dealer' would be amended to cover persons who are in the business of exchanging or converting currency, or transferring currency or commercial instruments such as cheques into or out of Australia on behalf of other persons. This amendment would ensure that the reporting obligations under the Act cover so-called `underground bankers'.

The Western Australian Anti-Corruption Commission and the Queensland Crime Commission would be deemed to be law enforcement agencies to enable them to have access to financial transaction reports information. Other law enforcement agencies that perform similar functions already have access to this information. It would also be made clear that foreign intelligence information provided to AUSTRAC by a foreign country is to be treated as financial transaction reports information and afforded the same strict secrecy and access regime that applies to all other information received by AUSTRAC under the Act.

Spent Convictions

Schedule 7 to the Bill contains a proposed minor amendment to section 85ZL of the Crimes Act to provide that the exemption allowing the use and disclosure of `spent conviction' information previously held by the National Exchange of Police Information will now be held by the new CrimTrac agency.


I am pleased to bring the Bill before the Parliament. It contains a well-rounded package of measures, enhancing investigatory powers in important areas where this is necessary; but also enhancing and clarifying safeguards and protections where appropriate. These measures would help to keep Commonwealth law enforcement methods up to date.

Ordered that further consideration of this bill be adjourned to the first day of the 2001 budget sittings, in accordance with standing order 111.