Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I rise to speak in the debate on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 [2007]. Labor welcomes what would be described as the useful upgrades which the bill makes to law enforcement capabilities. However, the bill fails to uphold a number of traditions necessary for the passing of fair and balanced legislation. In truth, the bill runs hot and cold—perhaps, like the Howard government, it is increasingly unreliable and out of touch.

In February this year, the Senate Standing Committee on Legal and Constitutional Affairs, comprising nine senators, of which the majority were Liberal Party senators, found several real problems with the bill. I will come back to that later. Labor, Liberal and Democrat participants unanimously passed recommendations to address the bill’s lack of transparency and focus. Why? Because it was the right thing to do. Labor will move amendments to improve the bill’s accountability and focus. Given that numerous Liberal senators want changes made to this bill, it would be unreasonable for the Howard government to oppose them. Obviously, we will give those on the other side an opportunity to consider their position.

As can be seen, this bill contains a number of schedules. It is, in truth, an omnibus bill. There are discrete schedules that deal with a range of issues, and I will go through them individually. I will now comment on each of the elements of schedule 1, which deals with controlled operations, assumed identities and protection of witness identity, sequentially.

With respect to controlled operations, defined as a covert or overt activity which would normally be unlawful but for which immunity is provided for the purposes of securing evidence of serious criminal offences, the bill enables controlled operations in the case of a serious Commonwealth offence or a serious state offence with a federal aspect. A controlled operation cannot be authorised where it could seriously endanger the health or safety of a person, would cause death or serious injury, would involve the commission of a sexual offence or would result in significant loss or damage to property other than illicit goods. A civilian can participate in such an operation, but only where the authorising officer is satisfied that a law enforcement officer will not suffice.

In addition, we are pleased that the Ombudsman features in schedule 1. The Ombudsman has been given comprehensive powers of inquiry and access to any records held by an agency. That is appropriate oversight for that schedule and that power. A problem does emerge in that this bill allows the government to prescribe by regulation a serious Commonwealth offence, and such an offence need not prescribe a maximum imprisonment period of three or more years. Two legal experts on the proliferation of delegated legislation in Australia, Pearce and Argument, have stated:

Australian parliaments, and particularly the federal parliament, have passed into law an enormous number of provisions authorising the making of delegated instruments that are legislative in character but which do not obviously fit within the established categories of delegated legislation.

There are four basic problems with quasi legislation. It can lead to: (1) a proliferation of quasi legislation; (2) poor quality drafting; (3) regulations that are inaccessible to the broader community; and (4) a lack of scrutiny by the legislature. Despite such advice, we are again dealing with what can only be described as more smoke-and-mirrors laws by regulation from the Howard government, and more attempts to avoid parliamentary scrutiny. The legal and constitutional affairs committee recommended that proposed subsection 15GE(3) be deleted from the bill to prevent offences carrying a penalty of less than three years imprisonment being included in the definition of ‘serious offences’ by regulation.

The government could argue that they need the framework in order to have flexibility. They make that argument every time. It would be helpful if they could come up with another line to pin their flag to. It is not enough to run that argument, because the result would be that you could have offences which carry less than three years imprisonment being included in the definition of ‘serious offences’ by regulation, and it is inappropriate to do so. It is much better to deal with that in the legislation itself.

I will now turn to assumed identities. An assumed identity is a false identity that is used by a law enforcement or security or intelligence officer, or other persons, for a period of time for the purpose of investigating an offence or gathering intelligence, or for other security activities. The reference to law enforcement or security or intelligence officers covers the Australian Federal Police, the Australian Crime Commission, Customs, the Australian Commission for Law Enforcement Integrity, the Australian Taxation Office or any other agency specified in the regulations. Assumed identities are necessary, it is said: firstly, for the purpose of an investigation or for gathering intelligence in relation to criminal activity; secondly, for the exercise of powers and the performance of functions of an intelligence agency; thirdly, for the exercise of powers and the performance of functions under the National Witness Protection Program; fourthly, for the training of people to carry out any of these functions or powers; or, fifthly, for any administrative function in support of any of these powers or functions, which would seem obvious. That list does not provide a coherent reason in itself for assumed identities.

As you can see, Customs are a designated law enforcement agency. They can use assumed identities, but they are not covered by the operation of the new federal anti law enforcement corruption body, the Australian Commission for Law Enforcement Integrity. It is Labor’s view that ACLEI should have coverage of Customs. We have said that numerous times now. This bill highlights again the need for ACLEI to have coverage of Customs, as the government has already included the Australian Federal Police and the ACC. Thought should also now be given to selecting the ATO employees falling under ACLEI who will perform these types of functions.

This bill makes provision for the return of evidence of the assumed identity in case of cancellation. People operating under an assumed identity, and third parties who assist them in creating and maintaining that identity, are indemnified against prosecution for acts which would otherwise be illegal. The penalties for the offences of the misuse of an assumed identity and improper disclosure of information about an assumed identity are an improvement on where we have been. Having said that, though, I think that the two-year maximum penalty does not sound particularly restrictive. Disclosing the identity of an officer could easily cost the person operating under an assumed identity their very life. Labor asserts that the maximum penalty of only two years for improper disclosure of an assumed identity does sound, in this instance, on the light side. I hope that the government can provide a reasoned and sustained argument for the basis of that and why the bill includes a penalty of only two years.

I now turn to witness protection. The witness protection provisions expand the program so that the Australian Federal Police can provide protection and assistance to former participants in the program, their families and witnesses in state or territory matters where it is necessary to protect them. The bill makes plain what these provisions do. These are tidy-up provisions. Part of the reason for having them is to ensure that we have national consistency across the various state and Commonwealth laws.

Schedule 2 covers delayed notification search warrants and provides for the establishment of a new class of search warrant. Delayed notification warrants are similar to traditional search warrants, with the exception that they do not require the occupier to be served with a notice of the search contemporaneously with the search occurring. This means that police or other eligible officers may enter and re-enter premises, conduct searches and examine, test, record, substitute or seize contents during that period without the knowledge of the occupier. The executing officer is also empowered to impersonate another person and enlist the help of a member of the public to assist with gaining entry to premises through the use of force.

Officers executing a search warrant are able to search not only material on computers located on the premises but also material accessible from those computers but located elsewhere. This will enable the tracing of a suspect’s internet activity and viewing of material accessed by the suspect. Where reasonable grounds are found to exist, the period for notification of the occupier may be extended by periods of up to six months in any one written application, up to a maximum of 18 months. It would be helpful if the government, in its response to this debate, could provide examples of how those powers might be utilised, especially when it comes to the use of computers and searching.

An extension beyond 18 months from the date of entry may be granted if the eligible issuing officer is satisfied that there are exceptional circumstances and with the written approval of the minister. This recognises that some investigations may be undertaken over an extended period. Labor asserts that this schedule is in fact too broad. The bill applies to warrants for an extensive range of so-called relevant offences. It is not only Labor that thinks this is too broad.

There are Commonwealth offences that are punishable on conviction by imprisonment for a period of 10 years or more. A state offence that has a federal aspect is punishable on conviction by imprisonment for a period of 10 years or more. Other relevant offences are: an offence against sections 8 or 9 of the Crimes (Foreign Incursions and Recruitment) Act 1978; an offence against sections 20 or 21 of the Charter of the United Nations Act 1945; or an offence against section 147.2(1) or (3), section 270.7, section 471.11(2) or section 474.15(2) of the Criminal Code.

In considering whether to authorise an application, the process is as follows. A chief officer must have regard to a three-part test which must be satisfied before the authority can be issued. The applicant must apply the same test prior to requesting authorisation. The concern is that the safeguards in this bill are linked to the prescriptive list of relevant offences and that that list of relevant offences is too broad for such sweeping powers, and powers that can be quite invasive.

Offences punishable by 10 years are of course serious offences. But in terms of the warrant, which requires and provides such an invasive power for investigations without notification, Labor considers the prescriptive list should be linked to terrorism related crimes and to offences involving or resulting in the death of a person or an offence against the person with a maximum penalty for the offence being imprisonment for life. Labor foreshadows that it will move an amendment to that effect at the committee stage. For instance, in relation to section 29 of the Crimes Act, which deals with damage to and destruction of Commonwealth property and carries a maximum term of 10 years imprisonment, the question has to be answered whether it should fall within the ambit of the proposed power. The government asserts yes, but it has not made the case, nor did it make the case in the Senate legal and constitutional committee. It is up to it to make it here today. I do not think it can make that case, quite frankly. I think—and Labor believes—that those powers should be circumscribed in the way that the Senate legal and constitutional legislation committee has outlined. Crimes of planning to conduct a terrorist attack that could kill, maim or injure hundreds of people are very different and significantly distinguishable from damage to Commonwealth property. This bill in this part should focus on terrorist related offences activity.

Schedule 4 amends the Witness Protection Act 1994. The National Witness Protection Program provides protection and assistance to witnesses involved in serious or high-profile legal proceedings which could pose a risk to them or to their families. The amendments aim to provide greater protection for witnesses or other people who are protected under the NWPP, the National Witness Protection Program. Members of the Australian Federal Police who serve in the witness protection unit and other Australian Federal Police employees who are involved in the operation of the NWPP similarly fall in that area. There is no need to go into significant detail on the remaining schedules 5 and 6. The amendments contained in schedules 5 and 6 are primarily technical. They negate the need for communication warrants to be served on the relevant telecommunications carrier under the Telecommunications (Interception) Act 1979 to seize electronic information.

As I indicated earlier, there has been a Senate inquiry into this matter. The Senate inquiry provided a substantive report in respect of this bill. The matter first arose on 7 December 2006 for reference to the committee that I have referred to for examination and report by 7 February  2007, so a reasonable period of time has elapsed since that committee reported. Not only does it provide the usual overview of the bill but, more importantly, it highlights key issues where amendments have been proposed by the Senate committee. I will not go to them in total, but they go to the issues that I have raised in the second reading debate today. They go to the matters where the committee recommends that proposed section 15G subsection (3) be deleted from the bill to prevent offences carrying the penalty of less than three years imprisonment being included in the definition of ‘serious offence by regulation’. They also go to recommendation 2, in which the committee recommended that the bill be amended to retain the requirement for extension of controlled operation for a three-month period to be approved by a member of the AAT. In recommendation 3 the committee recommends that the bill be amended to impose an absolute limit of 12 months on each authorised controlled operation. The committee in recommendation 4 also ensured that the Commonwealth Ombudsman would have input into the program. The committee recommendations go to the proposal that I have outlined as well, which deals with circumscribing the use for which the delayed notification warrants can be used. That can be found in recommendation 6, where the committee recommended that the federal government limit the offences in relation to which delayed notification search warrants may be issued to offences involving, as I have said, terrorism, organised crime or death or serious injury with a maximum penalty of life imprisonment.

The committee also went on to recommend a number of other things, but given the limited time I will not go to those in any great detail. I note that the government has provided a series of amendments to this bill. I have not heard yet as to how many of those recommendations have been picked up by the government. I expect that they have looked seriously at all the recommendations and that they have considered the improvements to the bill that they entail and we would hope that, in a meaningful way, they would choose to adopt all of the recommendations so that this bill not only enjoys the support of Labor but has been improved by both the committee process and by the government in adopting those recommendations. As I have said, there are significant concerns about this bill. It needs fixing. Whilst not declining to give this bill a second reading, I foreshadow that all words after ‘that’ be omitted with a view to substituting other words.