David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

These amendments are in response to the Senate committee report but they also stand alone. With the greatest respect to the learned senator representing the opposition’s shadow portfolio in this area, may I say that he has absolutely no real, practical understanding of how these amendments will work. Indeed, one has to ask whether he has any practical experience in the law at all. Late notification warrants, by their very function, obviate judicial oversight. Of course, the learned senator would not need any reminding by me of these things if he had any grasp of this. It is quite interesting that I have to lecture the opposition on this. The classic remedy for a warrant is to obtain an injunction, and that is to put material before a judge which must be responded to on a balance of probabilities.

I am taking the learned senator into areas into which he has quite obviously never been. In the notion of lack of judicial oversight, clearly a late notification warrant precludes remedies such as injunctions, because the person named in the warrant does not get notice of the warrant. If, of course, there had been some understanding at all in this regard, the very learned senator would have understood what I was talking about. Indeed, if he had read the bill and the amendments, he would know what in fact is going on here today. It is very, very interesting that he comes into this place seeking to inhibit the powers of the Australian Federal Police and seeking to suggest that the definition of ‘serious offence’ for late notice warrants is, in fact, too broad. I have set out what those matters are. They include matters relating to the overthrow of a foreign government—I would have thought that was very serious. I am interested in him addressing those questions.

The amendments come in response to the recommendations put forward by the Senate standing committee. I hope the learned senator is listening carefully to what I say here, because I am sure it will be edifying. I thank the committee for its comprehensive report, and I note that I am recommending that the Senate accept almost all of the committee’s recommendations, either in full or in part. The proposed amendments relate primarily to the authorisation and extension of controlled operations, witness identity protection and delayed notification search warrants, as well as important changes to the Australian Crime Commission. Also included are minor but much needed changes to the Australia Federal Police Act 1979 and the Crimes (Aviation) Act 1991. I table the government’s responses to the committee’s recommendations, as set out in the tabling statement. For the benefit of Senator Ludwig, the responses are clearly set out in table form so that he might see them and understand them.

The first significant amendment would delete proposed section 15GE(3) in the bill in order to prevent offences carrying a penalty of less than three years imprisonment from being included in the definition of ‘serious offence’ by regulation. This response to recommendation 1 of the committee report addresses the committee’s concern that the inclusion of a regulation-making power could potentially mean that any Commonwealth offence could be the subject of a controlled operation.

With respect to controlled operations, let us talk about the external oversight of extensions for controlled operations. I propose changes to the bill to allow an extension of controlled operations beyond the 12-month period to be approved by a member of the Administrative Appeals Tribunal. The inclusion of the Administrative Appeals Tribunal would bring an external oversight role to the decision to extend controlled operations. This proposed amendment responds, in part, to recommendation 2 of the committee’s report.

I also propose adding corresponding provisions that provide for AAT members to be nominated to participate in the review of extensions and to be authorised to grant authority for extensions. The conferral of this role on the AAT would partially restore the approach under the existing Crimes Act, which requires Administrative Appeals Tribunal approval for extensions beyond three months. I refer the chamber to section 15OB of the act.

Further amendments I am proposing would require law enforcement agencies to report to the Commonwealth Ombudsman on the number of extensions granted or refused by a nominated member of the Administrative Appeals Tribunal. The requirement to report to the Ombudsman would be included as part of the reporting requirements in proposed section 15HH(2) and would allow the Ombudsman to seek additional information under proposed subsection 15HH(3), if required.

With respect to witness identity protection, I am responding to recommendation 5 of the committee’s report by moving an amendment to proposed section 15KP to prohibit the retention, copying or recording by a presiding officer—for example, a judge or a magistrate—of any information or documentation provided to them under that provision; that is, information or documents that relate to an operative’s true identity. Although this would lead to a departure from the national model legislation, this proposed amendment would ensure that the true identity of the operative is not revealed or compromised by the actions of the presiding officer.

With respect to delayed notification search warrants, I am moving an amendment to proposed section 3SY to require the Ombudsman to conduct an inspection of agency files and issue at least every six months a report to the minister in relation to the administration of delayed notification warrants.

Progress reported.