Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

I would like to let the chamber know that this afternoon the Australian Democrats will give notice of a proposed select Senate inquiry into the nation’s antiterrorism laws. We do that for very good reasons. One is to ensure the public confidence in our nation’s laws but, more broadly, particularly in light of the Dr Haneef situation, there is good reason to review the myriad pieces of legislation that have been passed, particularly in recent years. If you add them all up, Mr Acting Deputy President, over the past few years, through you to the minister, I think possibly 40 pieces of legislation have been passed by this government in order to provide, arguably, an effective antiterrorism regime.

I preface my comments today with regard to the enactment of new and potentially very wide ranging additional powers for some of our law enforcement agencies and others. I am not sure whether that debate should be taking place now against this backdrop. Maybe we should be considering a comprehensive examination of previously passed laws, looking at how they interact with each other, before we move down this path. Having said that, I have probably read the numbers in this place, and obviously we are going to get on with the debate today in relation to the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 [2007].

The Democrats acknowledge that at least an ancillary aim of this legislation is to harmonise the controlled operations, assumed identities and protection of witness identity regimes across the nation. We consider that national uniformity of such laws is quite a worthy goal, particularly if it actually aids law enforcement officers in combating organised crime and acts of terrorism, which obviously permeate beyond state boundaries. However, the Australian Democrats are concerned that the legislation before us goes well beyond these aims and actually represents another example of an unwarranted attempt to extend the unsupervised powers of Commonwealth law enforcement agencies, potentially at the expense of privacy and other rights of Australian citizens.

The Law Council of Australia believes that the manifest need for these extended powers has not been demonstrated and that no further erosion of Australian citizens’ rights should be sanctioned by this parliament. I think this rings true in light of the last few weeks, particularly in the handling of the charges against Dr Haneef. I worry about the impact that that has had on public confidence and I think that is worthy of investigation. But, in relation to the bill, there are alarming aspects to this legislation. I will try and cover several in detail. Like the opposition, the Democrats have amendments, which I do not believe have been circulated, but we do not have a second reading amendment, so I look forward to seeing Senator Ludwig’s on behalf of the ALP.

A ‘controlled operation’ refers to a covert police investigation in which law enforcement officers and civilian informants are authorised to engage in unlawful conduct. Part 1AB of the Crimes Act 1914 already authorises controlled operations to be undertaken with respect to any serious Commonwealth offence attracting a penalty of over three years imprisonment. Schedule 1 of the bill is based upon model laws developed by the joint working group of the Standing Committee of Attorneys-General and the Australian Police Ministers Council. The intent of the model laws is to harmonise controlled operations, assumed identities and protection of witness identity regimes in Australia. What we have already seen across the past decade is a systematic expansion of offences to which controlled operations provisions apply.

When first introduced in 1996, the powers were confined to a limited number of drug importation offences. In 2001, an amendment was sought via the Measures to Combat Serious and Organised Crime Bill to expand their application to any Commonwealth offence, with little or no justification. Quite rightly, the proposed expansion was met with significant opposition and, based on recommendations from the legal and constitutional committee, the powers were substantially watered down. Further amendments were passed in 2004 to allow controlled operations in respect of a state offence that has a serious federal aspect and that has the characteristics of a ‘serious Commonwealth offence’.

In this bill, the effect of section 15GE is to remove the element of seriousness from the sorts of offences that will fall within the ambit of a controlled operation authorisation. This will mean that any offence carrying a three-year term of imprisonment is captured, including relatively minor offences, such as those dealing with damage to Commonwealth property. Further, the bill will allow controlled operations to be expanded to an offence prescribed by regulation, effectively allowing any Commonwealth offence to be subject to a controlled operation authorisation in the future. The justification from the government is that the expansion of powers is required to allow law enforcement agencies to deal with emerging categories of crime and in the interests of national harmonisation, yet we have been offered no real justification, or evidence for that matter, that suggests that the present powers are insufficient. Again, this kind of response sadly reflects the current environment where law enforcement agencies are beginning to regard extraordinary powers as ordinary tools of law enforcement. Our environment is changing completely. The Democrats consider that the range of offences in relation to which controlled operations may be authorised is already, arguably, too broad and that no further expansion, as outlined in this legislation, is necessary.

Division 2 of schedule 1 of the bill deals with authorisation of unlawful conduct. Under the present regime, only designated high-ranking officers within law enforcement and intelligence agencies may hear and grant an application to conduct a controlled operation. The Democrats have concerns about the extent to which these internal authorisations lack adequate safeguards to guard against the misuse of the power to confer immunity for unlawful conduct, and we consider that there is room for a greater form of scrutiny, particularly independent scrutiny. We believe that is entirely desirable.

In the Senate committee inquiry into the 2001 bill, I note that the Victorian Bar stated:

Legislation which would in effect allow a branch of the executive to choose which laws to enforce, and which laws to break, substantially diminishes the potential for independent judicial control of the exercise of police power.

Historically, the judiciary has sought to maintain public confidence in the administration of justice by insisting that those who enforce the law respect it. It has defended the right of the courts to protect the integrity of their processes by not granting implicit approval for wrongdoing by admitting evidence obtained through unlawful conduct by police. Under the regime proposed by the legislation, a high-ranking authorising officer will be able to issue a very broad authorisation of unlawful conduct and delegate effective responsibility for nominating who is authorised to engage in unlawful conduct, including, potentially, civilians and themselves. That is, there is the possibility to delegate that to an authorising operational officer. This represents a departure not only from the Crimes Act provision but also from the model laws upon which the bill is purportedly based.

The bill does not require the enforcement officer to have regard to the same criteria as the authorising officer, which are designed to ensure that controlled operations are only authorised in the most serious of cases and, of course, to minimise the risk of entrapment and civilian participation. The government justifies the vesting of extraordinary powers in ordinary law enforcement officers on the basis of the need for—and Senator Ludwig talked about this—greater flexibility during operations. The Democrats do not consider that this notion of greater flexibility is sufficient justification to empower ordinary law enforcement officers to authorise civilians to engage in criminal conduct with impunity, particularly when it comes in the absence of clearly defined standards. It will do nothing to enhance public confidence in the administration of justice.

The Democrats are also concerned that the bill removes any independent scrutiny of applications to extend a controlled operation and that it has the potential to allow controlled operations to continue indefinitely. Under the Crimes Act, controlled operations can be authorised for a maximum period of six months, and an extension beyond three months must be reviewed by a member of the AAT. Given that we believe there is no substantive evidence that the current six-month period is inadequate, the Democrats are opposing the extension of this time, particularly if it comes without any definitive cap. Controlled operations should not be used as de facto intelligence-gathering exercises and should be subject to clear time limitations. Any application to extend a controlled operation should be made to the AAT and be accompanied by detailed information regarding the success or otherwise of the operation to date, the need for an extension of time and any adverse impact that the operation has had on competing public interests.

The bill purports to extend protection from criminal responsibility and indemnity from civil liability to civilian participants in a controlled operation. In other words, the bill will allow police to authorise criminals to continue to undertake criminal activity. The Criminal Bar Association considers that proposals to allow police to authorise criminals to continue to undertake criminal activity are a ‘recipe for disaster’ which will result in police favouring particular groups of criminals for use in operations over other groups of criminals and police being subject to manipulation by criminal elements and corruption and would yield evidence of arguably minimal value.

The Democrats consider that the risk foreshadowed by the CBA is greater when the power to authorise controlled operations is devolved to investigating officers who are directly involved in the conduct of those operations. If informants are to be granted protection from liability, the power to authorise controlled operations must remain with high-ranking officials who are removed from the operations and must be based on clear and definite criteria that adequately balance the benefit of the proposed controlled operation with any potential adverse impact upon the public interest or the perception of the administration of justice.

The bill seeks to replace part IAC of the Crimes Act with new part IACA dealing with assumed identities and witness protection. Once again, it is relating to the argument for the need for harmonisation of these laws. The aim of the part is to protect the true identity of covert operatives who give evidence in court, including foreign law enforcement officers and civilians, via the issue of a witness protection certificate, or WPC, as you have already heard outlined by Senator Ludwig, that is issued by the chief officer of a relevant law enforcement agency. The decision to issue a WPC is not appealable or capable of being called into question by a court. While the WPC will contain sworn information about the operative, including the details of any previous charges or adverse findings of credibility, the true identity of the witness will only be disclosed in extremely limited circumstances, and that is when a court is satisfied that there is evidence that, if accepted, would substantially call into question the operative’s credibility. In the view of the Law Council, it is highly unlikely that such information will allow defence counsel to properly test the credibility of a witness whose identity is protected by a WPC. Without access to the true identity of the witness in the first place, it will be impossible for the defence to determine whether any issues of credibility may arise.

I note that the Senate Standing Committee on Legal and Constitutional Affairs noted that there was no justification for the court to be denied the opportunity to consider the matter of witness identity on its merits and the committee emphasised that the rights of each party must be respected for justice to be done and to be seen to be done, which is best achieved through leaving intact the court’s discretion to balance the various interests at stake in individual cases—yet the committee made no recommendation to amend the bill in this regard. The Democrats like the model that has been put forward by the Australian Law Reform Commission, which would place the authority to issue a WPC in the hands of a court after it conducts an independent and thorough assessment of the competing public interests.

In relation to delayed notification search warrants, schedule 2 of the bill, which deals with delayed notification and what have been called ‘sneak and peek’ warrants, will grant the power to secretly enter, search and seize property. It does represent a pretty blatant invasion of privacy and a clear interference with an individual’s right to security on their premises. The introduction of such extraordinary powers should only be tolerated in the most extreme circumstances and even then be subject to the strictest conditions. While the power to authorise similar warrants exists at a state level, that power, as I understand it, is restricted to only the investigation or prevention of terrorist acts. This bill purports to expand those powers to the federal agencies in respect of a range of less serious Commonwealth offences. It also allows the renewal of the warrant for a potentially indefinite period.

The explanatory memorandum provides no clear rationale for the introduction of such extreme powers, nor does it explain or justify why extraordinary existing powers to search and monitor individuals have proven insufficient. The Democrats have made the point repeatedly in the past that, if government comes to the chamber with a good argument on this or other matters, a good case to show why current laws are inadequate, then we will listen. But, as I have said repeatedly, current laws are in many respects quite extraordinary and extreme in some circumstances, and I think this is one case where the moves in the legislation are incredibly concerning.

The expansion of powers of the Australian Crime Commission is another element of this bill about which we are concerned. We believe schedule 3 of the bill purports to expand the coercive powers of the ACC beyond reasonable limits. In particular, the bill seeks to abrogate the privilege against self-incrimination by requiring persons to provide a written statement potentially containing self-incriminating information and effectively requiring a person to make a case against themselves. A person under investigation should not be burdened with the ACC’s legwork and should be able to choose to provide evidence via oral testimony and document production if preferred.

The ACC will also be able to use information obtained in such circumstances as evidence in a prosecution for previously providing false information. The Democrats do not consider that the threat of prosecution based on compulsory testimony will engender candour in suspects, and we consider that it will do nothing to further the cause of the ACC in obtaining accurate and relevant information. In some respects, this seems a little like deja vu or groundhog day. I know that over the years we have had comparable debates with the precursor of the ACC, the National Crime Authority, and others, but we believe this is an area in which this legislation goes too far.

Alarmingly, this bill also seeks to restrict access to a legal practitioner for persons giving evidence under compulsion, by granting an ACC officer the discretion to allow an interview to continue when a preferred legal practitioner must be excluded from an interview. The rationale offered, as I understand from the Attorney-General’s Department, is to prevent the safeguard of a legal practitioner being used as a delaying tactic. To me that seems a little flimsy, at best, as a rationale. As the Senate committee noted in the report, the right to legal representation is a fundamental one and is especially important where, as is the case here, refusal by a witness to answer a question results in a penalty. The discretion to allow an adjournment should be removed.

As I have outlined, dealing with specific aspects of this bill, the Democrats are genuinely concerned about the attempt by government to make these changes—again, to another piece of legislation—in a raft, a myriad, of laws dealing with crime prevention and antiterrorism law. The Australian Democrats will be moving amendments to ameliorate what we consider to be the worst aspects of this legislation. It does need significant amendment, and without that significant amendment we will not be supporting this legislation.

I also put on notice to the chamber the fact that the Democrats will be seeking a select committee, a balanced Senate committee that will examine the comprehensive pieces of legislation that this Senate and the parliament have passed over the last four or five years. I think that is called for, and it is particularly timely at the moment, in an attempt to restore public confidence in the antiterrorism regime that we have in this country.