Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to 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.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to 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.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

Law and order auctions are a feature of state politics: Labor and Liberals compete on who can announce more funding for police and prisons and who can hand out tougher sentences or be stronger on tackling crime. It is never very edifying to watch party spokespeople compete to make the pages of the tabloid media in this way, and it certainly does not make good policy.

This inflationary dynamic of law and order policy in Australia has been accelerated by the declaration of the war on terrorism, and we are now seeing it migrate into the federal arena. Just as we saw with the Tampa, the government has tried to use national security and the pursuit of Dr Haneef as political tools to ramp up fear. The appalling debacle of this latest chapter in the government’s serial abuse of its extensive security powers should give pause to any further consideration of additional powers for security forces, but instead the government is pursuing further powers, an extension of powers, for the Australian Federal Police in the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 [2007].

Unfortunately—although it remains to be seen—this may be another instance in which the opposition joins the government and disappoints people in its lack of courage to oppose the erosion of our civil rights. We have seen in the past that new proposals from the government in relation to national security have been met with a resounding ‘me too!’ from the opposition. There is plenty of opportunity for this bipartisan assault on human rights when security agencies have a voracious appetite when it comes to requesting additional powers. The Law Council summarised the problem in this way in their submission to the Senate inquiry into this legislation, when they said:

... in recent years a culture has developed which has increasingly inhibited the type of detailed and robust debate which, in a healthy democracy, ought to precede any extension of Executive power or interference with previously entrenched rights and liberties.

5.        The pattern which has emerged is as follows:

          (a)           Typically, over objection and with reticence, extraordinary powers are granted to law enforcement agencies in order to meet what is asserted to be an extraordinary risk to the community. It is acknowledged that the exercise of those powers will involve an infringement of rights or invasion of privacy but is said to be justified by a countervailing threat to the community.

          (b)           Later, the law enforcement agency which has been the recipient of those powers reports that the powers have assisted greatly in combating crime. No one is in a position to argue whether the same result might have been achieved by a different method. No one, other than the law enforcement agency itself, is privy to detailed information about the day-to-day use of the power and its implications.

          (c)           Rights which are infringed in the process of exercising the power are largely invisible. This is both because those rights are regarded as ceasing to exist from the moment they are traded off in favour of more efficient law enforcement and because it is assumed that only a certain criminal class is materially affected.

The Australian Greens, however, believe it is the parliament’s responsibility to not only protect citizens from crime but also protect citizens from the overreaching powers of an unaccountable state and its agencies. We share the concerns of the Law Council of Australia, who are opposed to this never-ending parade of new powers for security agencies. Like the Law Council of Australia, we are opposed to this bill that is the latest step in the extension of such new powers. It is a question of balance and accountability, and there is no balance and accountability in this legislation. Amongst other things, this legislation: creates ‘sneak and peak’ warrants that enable police to search people’s homes without them knowing about it; extends the use of controlled operations in which undercover police and informants are able to break the law to potentially cover all Commonwealth offences; fails to provide independent and external approval processes for controlled operations; removes the role of AAT members in approving the continuation of controlled operations beyond three months; removes the maximum time limit on controlled operations; extends the protection from criminal and civil liabilities to civil informants who participate in controlled operations; reduces reporting requirements for controlled operations; extends powers for police confiscation of electronic equipment such as mobile phones, thereby avoiding the requirement to obtain a telecommunications interception warrant; and extends the coercive powers of the Australian Crime Commission.

The Greens are concerned about all these aspects of this bill. They increase powers without justification and they remove accountability and oversight of these powers. In particular, the introduction of the delayed notification warrants, or the ‘sneak and peak’ powers, is a major departure from basic civil rights. I want to focus my remarks on those aspects of the bill. For centuries, the English common law, based on Roman principles, held that a man’s home is his castle and that an infringement on a person’s property whether by the state or by individuals must have significant limits. This has its most well known expression in the United States Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The so-called ‘castle doctrine’ has also been an important part of Australia’s common law. This bill will violate that doctrine giving the Federal Police extraordinary new powers to secretly enter, search and even take things from people’s homes. This is an enormous encroachment on Australians’ civil rights and should not be supported by this parliament.

Currently, if an officer wants to search a person’s home or property, they must identify themselves to the occupier, give them a copy of the search warrant, allow them to observe the search and provide them with a receipt for anything confiscated under the warrant. These rights enable a person subject to the warrant to challenge the validity of the issuing or execution of the warrant and they enable a person to call a lawyer who can be present during a search. These rights are very important rights designed to ensure equality before the law and to provide protections from abuse of state power. They are a fundamental check and balance on our criminal justice system. But this bill throws those rights out the window and replaces them with a regime that would be familiar to anyone who had lived in East Germany or other totalitarian societies.

Schedule 2 of the bill introduces a new division into part IAA of the Crimes Act that sets out various powers of police, including those in relation to search warrants. The new division will create delayed notification search warrants, or covert search warrants, and an approval regime. These ‘sneak and peak’ powers will enable police to obtain a warrant to search premises covertly and seize or copy items without informing the occupier for up to six months or longer in certain circumstances. Such powers are a major intrusion on the privacy of citizens and their right to security in their home and property. Such powers should only be available in extraordinary circumstances and in a carefully circumscribed manner. The secrecy inherent in the powers means that the capacity of an individual who is subject to such a warrant has virtually no capacity to ensure that such powers are used lawfully and in justifiable circumstances. The government has made no attempt either in its second reading speech or in its explanatory memorandum to justify why such new powers are needed. As the Law Council say in their submission:

It is not enough to claim, without more, that it will greatly assist police. The removal of the need for warrants entirely would also achieve this aim. Likewise it is not enough to couch the proposed new provisions in the language of balance and to offer assurances by reference to accountability and oversight mechanisms.

The Law Council goes on—and the Greens agree:

As a first step, the agencies which seek the creation of this extraordinary power, must establish, in precise terms, the need for this covert warrant regime, and the public interest goal it serves. Only then can a proper discussion follow about whether the asserted need greatly outweighs the obvious and substantial risk to individual rights and whether that risk can be sufficiently safeguarded against with appropriate accountability mechanisms.

Security and police agencies already have a raft of powers to address serious crime, including terrorism. These include: controlled operations where undercover police and informants can engage in unlawful conduct; warrants to secretly enter property and install surveillance devices; tapping of telephones and other communication devices; and the coercive powers of the Australian Crime Commission to compel a person to provide self-incriminating evidence and the extensive powers of ASIO, including the capacity to secretly enter homes and property, and collect intelligence. Given these powers, it is incumbent on the government and police to explain why they think that these powers are inadequate for the job. To date they have not done so. Just because these powers, which in many cases also violate a person’s privacy, have been enacted is not a justification for further powers. Rather, they make the requirement for justification on the part of the government and police all the more compelling.

Where are the holes in these existing powers that make these ‘sneak and peek’ laws so necessary? Where is the evidence that criminals or terrorists are getting away because the powers in this bill do not currently exist? It is also not enough for the government to point to state laws in relation to covert search warrants that relate to terrorism offences that were introduced without justification by Labor state governments. The proposals in this bill go far beyond what is contained in state legislation.

Covert search warrants will be able to be issued in relation to a broad range of offences, including Commonwealth offences that carry penalties of 10 years imprisonment or more, state offences with a federal aspect that also carry 10 years and some terrorism offences and a scattering of other offences that carry less than 10 years, including threatening to cause harm to a public official or using the post to make threats. As the Law Council points out, this is a very broad list of offences, ranging from receiving stolen mail to selling a controlled plant to dishonestly receiving stolen Commonwealth property.

The government and the police have not explained what the rationale is for this hotchpotch of offences or why these powers are needed in each case to adequately investigate the commission of such offences. It seems that the approach has been to come up with the idea for this power and then collect up the greatest pool of offences that could underpin it, giving the police free rein.

A similar approach seems to be adopted in the bill in relation to the length of time for a covert search warrant. The existing warrants in division 2 of the Crimes Act are allowed a maximum duration of seven days. This bill will allow covert warrants to endure for 30 days. Once again, no explanation has been provided for why the length of time should increase fourfold.

Central to the Greens’ concerns regarding these ‘sneak and peek’ powers is the length of time before police are required to inform a person that their property has been searched. In fact, in certain circumstances the bill would allow police to delay informing a person indefinitely. In other words, police could secretly search a person’s home or property without ever informing them that they had done so. In the first instance, police who are issued with a covert search warrant are able to delay notification for up to six months. However, on application to a nominated member of the Administrative Appeals Tribunal or a judge, this can be extended twice for another six months. After 18 months, with the approval of the minister, a judge or a nominated member of the Administrative Appeals Tribunal can extend the delay even further.

If you accept that such covert warrants are necessary, how can such a length of time be justified? These warrants are not meant to be used for collecting intelligence but rather for the investigation of offences. The length of time of such warrants plus the allowable further delays mean that inevitably they will be used for intelligence-gathering and fishing expeditions rather than for the prosecution or prevention of offences. No guidance is provided to AAT members or judges about how to decide on extending a warrant, except that after 18 months exceptional circumstances must exist. The inference that one could draw, therefore, is that up to 18 months delay is almost automatic and certainly does not require any exceptional circumstances to exist. A further major flaw that has been identified by the Law Council is the lack of any requirement that a person be notified of the covert search warrant even if they have been charged with an offence.

In summary, the time frames involved seem designed to enable police to build a case against an individual without that individual having the capacity to challenge evidence or prepare for their defence. This is a fundamental attack on a person’s right to due process and a fair trial.

Before finishing my remarks, I want to mention a further two aspects of the bill in relation to covert search warrants—the ‘sneak and peek’ powers—which deserve the Senate’s attention. Legal professional privilege is essential to the rule of law. It underpins equality before the law and a person’s right to a fair trial. Currently, if a person’s home is searched by police, they are in a position to make a claim for legal professional privilege for documents or things that police attempt to seize. These documents are then not able to be examined by police until the issue of privilege has been resolved by a court. This regime of covert search warrants will ride roughshod over the principle and the practice of legal professional privilege. Police now will be able to confiscate documents, regardless of the privilege that might attach to some items, because a person or their lawyer will not be aware that the search has occurred or that the seizure of documents has occurred.

Another concerning feature of this bill relates to what are designated as ‘adjoining premises’, which are able to be entered for the purpose of entering the targeted property. An owner or occupier of an adjoining property is also subject to the same delay in notification as the subject of the warrant—that is, they may not be told for six, 12 or 18 months or more that the police secretly entered their property. Once again, this is a significant derogation from a citizen’s right to privacy and property that has not been justified by the government or by the police.

The Greens do not support these provisions or the others that I mentioned at the beginning of my remarks. The government had the opportunity to take on board the concerns of the Law Council and others about this bill, and it could have modified its provisions. In its present form the bill is unbalanced. It gives too much unaccountable power to law enforcement agencies, and it tramples on fundamental civil rights. Given the circumstances that we have seen in recent weeks in relation to the case against Dr Haneef, now is not the time to be giving these extraordinary new powers, which trample on some fundamental tenets of our civil liberties in this country, to the Australian Federal Police. Therefore the Greens will not be supporting this bill.

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

I want to thank all senators for their contributions to this debate on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 [2007]. The bill makes important amendments to the law relating to the investigation of criminal activity and the protection of witnesses. The majority of proposed amendments that I will be moving later on, when this bill comes on, come in response to recommendations by the Senate Standing Committee on Legal and Constitutional Affairs, and I thank that committee for their comprehensive report.

I would like to respond to a few of the items mentioned in today’s debate. By advancing this bill, the Australian government is fulfilling the government’s election commitment to have a national model of legislation on assumed identities, controlled operations and the protection of witness identity. The learned senator on the opposition side with custody of this matter, Senator Ludwig, made the point that we are going to leave open the possibility of the government adding additional offences to schedules by regulation. I am surprised that the learned senator has not read the government’s amendments, because 15GE(3)—

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

I have now you circulated it.

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

Good, but I think you might have had them before you made the reference—

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

No.

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

And if you did not, it was not our responsibility. But the point is you can see that the amendments do—

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

I saw.

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

Yes, that is good. I would like to hear you say that so that you can correct the record of all the things that you said about what the government is seeking to do in regard to that which are clearly incorrect. I suppose that just highlights one of the important things that people should understand with respect to these sorts of powers, which is, of course, that these are not powers that the opposition relate to or understand. Indeed, we have had 10 years for the opposition to come forward with any proposal, particularly after September 11, to deal with national security and, of course, all we have is a vacuum of inane carping with no leadership and no policy whatsoever.

This bill addresses problems relating to the conduct of organised criminal networks which operate with ease and dexterity across jurisdictional borders, including international borders and state borders. Contemporary policing requires law enforcement agencies to undertake investigations that extend beyond the boundaries of any one jurisdiction. To address this increasing threat, it is critical that the Australian government adopt this model legislation. The creation of a national set of investigative powers facilitates seamless law enforcement across the jurisdictions. I pause to state that for many years now the states have had late notification search warrant powers, all of which have gone unheralded and uncommented upon. But, of course, when the federal government seeks to enact such powers, the opposition suggests there is something wrong in that. Indeed, the playing of politics and point scoring with matters as important as this is something which I think the opposition can take absolutely no credit in.

The addition of delayed notification search warrants also brings an important investigative power to police that will enable them to adequately respond to, prevent and investigate terrorist activity and other serious offences. The opposition says that the definition of serious offences in sections 8 and 9 is too broad. Of course, we know that the definition commences with offences that carry 10 years or more imprisonment—given that tag, title and qualification, they are obviously very serious offences. Also the defining section of serious offences says sections 8 and 9 of the Crimes Act—foreign incursion and recruitment—which, of course, relates to persons who engage in hostile activities with the intention of overthrowing a foreign state or engaging in armed hostilities in the foreign state. I would have thought those provisions were very serious, but the opposition says they are too broad. I would have thought that it was a very serious offence if we had a group of people onshore in Australia seeking to overthrow a government of another country. It is interesting that the opposition cannot see that.

The definition section of serious offences goes on to talk about sections 20 and 21 of the Charter of the United Nations, and those sections deal with wrongfully dealing in freezable assets. The United Nations can freeze assets of companies breaching trade sanctions and undertaking unauthorised activity in circumstances where there are human rights abuses, and the UN can prohibit dealing with them. But the opposition says, ‘Oh no, that’s all right; that’s too broad.’ I would have thought that, given what we have seen with respect to a whole group of matters of recent times in breaching prohibitions on trade sanctions, it would not have been too broad.

Further, the definition sets out serious offences as set out in sections 147.2, 147.2(3), 474.11(2) and 474.15(2) of the Criminal Code as serious offences. Those offences are offences related to threatening to cause harm to a public official. How on earth could that be too broad? It is patently obvious that the opposition is soft on crime here or has not read or understood the bill. A further serious offence set out is using a postal service to make a threat, again a very serious matter. Also, a serious offence is using a carriage service to make a threat. Police have indicated that a delayed notification search warrant will be particularly beneficial during an investigation into such offences when the threat has originated from a syndicate—for example, an extremist political group—where police do not want to alert the syndicate that they have been identified. These are matters of logic that flow with any understanding of the way police conduct operations. Sadly, the opposition in this chamber has no real understanding and, of course, this is not the core understanding of the Australian Labor Party—not that they have much understanding of anything at all. But the point here is that to say that these definitions are too broad is to completely misconceive what is sought to be done by these matters. I would like to hear Senator Ludwig say on the record again that these matters are too broad, because we are talking about people-trafficking, sexual slavery and a whole host of other similar offences which are caught by the definition section.

At the end of the day, these definitions and these police powers are vitally needed. If you had any grasp or understanding of the way the police operate with respect to outlaw motorcycle gangs and organised crime in circumstances where these criminals have diverse assets and numerous places from which they can conduct their operations, particularly clandestine drug laboratories, you would understand that to raid or search one of those premises would, if you were to provide notice, tip off the broad network. But, of course, it would be too much to ask that the Labor Party understand how police conduct operations. Indeed, to suggest that ACLEI be responsible for Customs again shows a lack of understanding of what it means to have police powers in this country.

ACLEI is responsible for law enforcement integrity, which relates to the Australian Federal Police. Of course, the Australian Federal Police have extensive police powers of arrest and of being able to use lethal force in certain circumstances, and other powers of that nature. Again the opposition sit there, not having provided a single drop of policy on these very important matters, and want to take ACLEI further than it was originally legislated and designed to go. Obviously, in the circumstances of police powers, ACLEI going beyond that function is clearly bad policy.

These powers are important. It is very important that people who criticise them actually understand them and actually relate to why they are being used, and in circumstances where the bill has been read and the safeguards acknowledged. The safeguards here are extensive with respect to reporting from the Ombudsman, with respect to the commissioner granting original position and with respect to a judicial officer or member of the Australian Administrative Appeals Tribunal granting the warrant in the first instance. These powers have enormous oversight and transparency but are vitally needed—and should be understood by the opposition—in circumstances where there are serious threats from a very dynamic and diverse group of organised criminals and from terrorism. The police need to be able to conduct operations without providing any assistance in the nature of a tip-off or explanation to people who would use such information to avoid prosecution. This bill does all of these things effectively and I commend it to the Senate.

Question agreed to.

Bill read a second time.