Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)Schedule 1 - Controlled operations
Crimes Act 1914
The purpose of this Schedule is to amend the existing controlled operation provisions in Part 1AB of the Crimes Act. The existing provisions are limited to exempting from criminal liability law enforcement officers who commit narcotic drug offences, such as importation of a prohibited substance, in the course of obtaining evidence that may lead to the prosecution of a person for specified drug offences. The proposed new provisions will:
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- expand the operation of controlled operations to apply to the investigation of a much wider range of Commonwealth offences;
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- expand the exemption from criminal liability to cover all Commonwealth, State and Territory offences (if prerequisites are met) and to be available to certain persons other than law enforcement officers;
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- introduce indemnification from civil liability for both law enforcement officers and certain other persons;
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- revise the categories of persons who may apply for and who may authorise a controlled operation;
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- provide for a member of the Administrative Appeals Tribunal to review any operation that it is propose to continue beyond 3 months;
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- make consequential amendments to enhance the reporting and accountability regimes, including the incorporation of the Ombudsman in the accountability arrangements;
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- introduce a separate and more limited controlled operations regime for Customs; and
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- make adjustments to other aspects of the framework regulating controlled operations and evidence derived from them.
This Item inserts a definition of the term AFP authorising officer into subsection 3(1) and provides that it will have the meaning given by proposed subsection 15J(3) (see Item 17).
This Item inserts a definition of the term appropriate authorising officer into subsection 3(1) and provides that any AFP authorising officer or NCA authorising officer will be an appropriate authorising officer in relation to a certificate authorising a controlled operation if the certificate was given by an authorising officer of the same agency.
This Item amends the definition of the term authorising officer in subsection 3(1) and provides that an authorising officer in relation to a controlled operation has the meaning given by proposed section 15J (see Item 17).
This Item inserts a definition of the term Commonwealth offence into subsection 3(1) and provides that a Commonwealth offence means (other than in Part 1C) an offence against a law of the Commonwealth. Part 1C has a different definition of Commonwealth offence (section 23B) which excludes Defence Force Discipline Act 1982 service offences.
(Item 5 was removed in the Senate.)
This Item inserts a definition of the term illicit goods into subsection 3(1) and provides that illicit goods mean goods the possession of which is a contravention of a law of the Commonwealth, a State or a Territory. With the proposed expansion of the controlled operation provisions to cover the investigation of a broader range of Commonwealth offences, there needs to be a consequential expansion of the type of goods that may be involved in the controlled operation for which special consideration needs to be given. For example, an authorisation certificate will have to make reference to any illicit goods that are the subject of the criminal activity under investigation (see Items 21and 22), as will reports on authorisations and operations (see Item 35)).
This Item inserts a definition of the term major controlled operation in subsection 3(1), namely that it has the meaning given in subsection 15J(2A) (Item 17). Where the AFP proposes to undertake a major controlled operation, only the Commissioner or Deputy Commissioner will be able to issue a certificate authorising the operation (see proposed paragraph 15J(2)(a), in Item 17).
This Item repeals the definition of the term narcotic goods offence from subsection 3(1) as consequence of the proposed expansion of the controlled operations regime to cover the investigation of a broader range of Commonwealth offences and the introduction of the term illicit goods (see Item 6).
This Item inserts a definition of the term NCA authorising officer into subsection 3(1) and provides that it will have the meaning given by proposed subsection 15J(4) (see Item 17).
This Item inserts a definition of the term nominated Tribunal member into subsection 3(1) and provides that it will have the meaning given by proposed section 15OC (see Item 17). A certificate authorising a controlled operation will only be able to remain in force beyond 3 months if it is reviewed by a nominated member of the Administrative Appeals Tribunal, and that member decides that the certificate should remain in force (see proposed section 15OB in Item 28).
This Item inserts a definition of the term quarter into subsection 3(1) and provides that a quarter means a period of 3 months ending on 31 January, 30 April, 31 July or 31 October for the purpose of reporting requirements under proposed section 15R (see Item 34).
(Item 10 was removed in the Senate.)
This Item inserts a new heading for Part 1AB Controlled operations for obtaining evidence about Commonwealth offences reflecting the fact that under the proposed amendments controlled operations will no longer be limited to offences concerning narcotic goods.
Subsection 15G(1) outlines the objects of the controlled operation provisions. Paragraph 15G(1)(a) currently provides that one object of the provisions is to exempt from criminal liability a law enforcement officer who in the course of a controlled operation takes an active part in a narcotic goods offence such as importation or exportation of such substances. (Exemption from criminal liability is currently limited to narcotic goods offences consistent with the fact that a controlled operation can only be conducted in relation to the investigation of narcotic goods offences.)
With the proposed expansion of the controlled operation provisions, proposed paragraph 15G(1)(a) replaces the existing paragraph and provides that an object of the controlled operations provisions is to exempt from criminal liability and to indemnify from civil liability law enforcement officers and certain other persons who take an active part in or are otherwise involved in the commission of a Commonwealth, State or Territory offence during the course of an authorised controlled operation.
(Item 13 was removed in the Senate.)
This Item replaces an incorrect reference to Act with a reference to Part in subparagraph 15G(1)(c)(i). This is a minor drafting error in the existing provision.
This Item adds a reference to admit in paragraph 15G(2)(a) to make it clear that the controlled operation provisions do not limit the discretion of a court to admit as well as exclude evidence in criminal proceedings.
This Item inserts proposed section 15GA to provide that a law of a State or Territory should be able to operate concurrently with the controlled operation provisions to the extent that those laws are consistent with the new controlled operation provisions. This is important because of the significance of joint operations between Commonwealth, State and Territory agencies, relating to suspected Commonwealth, State and Territory offences.
This Item repeals sections 15H, 15I and 15J and substitutes new provisions dealing with the expanded scope for controlled operations, exemption from criminal liability, indemnity for civil liability and compensation, and the application and authorisation procedures in relation to controlled operations.
Proposed new section 15H: What is a controlled operation?
Proposed section 15H provides that a controlled operation is an operation that:
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- involves the participation of law enforcement officers;
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- is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence; and
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- may involve a law enforcement officer or a person other than a law enforcement officer in acts or omissions that, apart from proposed subsections 15I(1) and (2) constitute a Commonwealth, State or Territory offence.
This proposed definition of controlled operation replaces the current definition so that a controlled operation may now be conducted during the investigation of any serious Commonwealth offence, as defined, rather than being limited to narcotic goods offences. The proposed new definition also reflects the fact that an authorisation would be able to extend to certain persons other than law enforcement officers.
Proposed section 15HA: Meaning of engage in conduct
Proposed section 15HA is an explanatory provision that provides that engaging in conduct includes omitting to act and a persons conduct includes a persons omissions.
Proposed section 15HB: What is a serious Commonwealth offence?
The purpose of proposed section 15HB is to define the range of Commonwealth offences in relation to which a controlled operation may be authorised. The proviso that a certificate authorising a controlled operation may only be issued in relation to a suspected serious Commonwealth offence operates as a limitation on:
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- the definition of controlled operation (proposed section 15H, Item 17);
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- the rules governing who may authorise a controlled operation (proposed subsection 15J(2), Item 17); and
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- the prerequisites for authorising an operation (proposed paragraph 15M(a), Item 20).
This limitation implements recommendation 1 of the report on the Bill by the Senate Legal and Constitutional Legislation Committee.
The definition of serious Commonwealth offence has a number of key features. It is limited to offences carrying a maximum penalty of 3 years or more imprisonment. That is, a controlled operation cannot be authorised in relation to an offence carrying a maximum penalty of less than 3 years imprisonment, or that is only punishable by fine, not imprisonment.
The definition is also limited to offences of the kind listed in the definition, or of a kind prescribed by regulation. Many of the listed items are drawn from the definition of relevant offence in section 4 of the NCA Act (eg, theft, fraud, illegal drug dealings). There are also some additional categories, in respect of which a controlled operation may be an appropriate investigatory technique (eg, sabotage or threats to national security, the organisation financing or perpetration of sexual servitude or child sex tourism). All of the listed categories have the potential to involve serious and organised criminal behaviour that might properly be investigated by means of a controlled operation.
The capacity to prescribe additional items by regulation has been included to cater for emerging categories of serious crime, reflecting both the changing criminal threat and new enforcement priorities that may emerge. The Government has undertaken, in consultation with the AFP and NCA, that no operation will be authorised on the basis of a category of offence prescribed by regulation, until the disallowance period for that regulation has ended.
Proposed new section 15I: Law enforcement officers etc not liable for offences committed for purposes of authorised controlled operation
The purpose of proposed section 15I is to define the circumstances in which a law enforcement officer or person other than a law enforcement officer will not be criminally responsible for otherwise unlawful conduct. This expands the existing section 15I, which only applies to law enforcement officers and narcotic drug offences.
Proposed subsection 15I(1) provides that a law enforcement officer is not criminally responsible for conduct that would otherwise constitute a Commonwealth, State or Territory offence if:
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- he or she engages in that conduct in the course of duty for the purposes of a controlled operation; and
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- the conduct meets the requirements of proposed subsection 15IB(1).
Proposed subsection 15I(2) is in similar terms to proposed subsection 15I(1) and exempts from criminal responsibility a person who is not a law enforcement officer, other than those excluded from immunity under proposed subsection 15I(2A). Such a person will be exempt from criminal responsibility if:
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- the person engages in conduct that would otherwise constitute a Commonwealth, State or Territory offence for the purposes of the controlled operation;
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- a law enforcement officer has authorised the person to engage in that conduct; and
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- the conduct meets the requirements of proposed subsection 15IB(2).
Proposed subsection 15I(2A) provides that certain categories of person cannot receive immunity from criminal liability under the controlled operations regime. These persons are informants, and those involved in the criminal scheme under investigation. This latter category would include, for example, a courier involved in an illegal importation who latter agrees to assist police to secure evidence against the organiser of the importation. There is no prohibition on persons excluded from gaining indemnities and immunities under the controlled operations regime receiving case by case prosecution immunities.
Proposed subsection 15I(3) provides that proposed subsections 15I(1) and (2) do not affect the liability of any other person whose conduct is not covered by the certificate notwithstanding that someone whose conduct is covered by the certificate is not criminally responsible for an offence. The purpose of this proposed provision is to ensure that the exemption from criminal responsibility for those covered by the certificate does not result in the otherwise unlawful conduct being rendered lawful. For example, the fact that a person involved in unlawful conduct is a participant in an operation and is covered by a certificate will not mean that the importation becomes lawful or that the target of the operation is immunised from liability.
Proposed subsection 15I(4) provides that subsection 15I(3) applies despite any provision of Chapter 2 of the Criminal Code to the contrary. The purpose of this proposed provision is to ensure that there is no implication from Chapter 2 that the immunity conferred on one party negates the elements of an offence otherwise attributable to a person targeted by the operation.
Proposed subsection 15I(5) is designed to ensure that goods, which are illegally imported, do not lose that illegal quality as a result of a being imported as part of a controlled operation. This means that any other consequence that may flow from the fact that the goods are illegal (such as forfeiture of the goods) will continue to apply, notwithstanding that the person who imported the goods is exempt from criminal responsibility.
Proposed subsection 15I(6) re-enacts existing paragraph 15I(7)(a) to provide that for the purposes of the proposed section 15I a member of a police force or other law enforcement agency of a foreign country is to be taken to be acting in the course of duty to the extent that he or she is acting in accordance with the instructions given by the Australian law enforcement officer in charge of the operation.
Proposed section 15IA: Indemnification of law enforcement officers etc
The purpose of proposed section 15IA is to set out the circumstances in which the Commonwealth must indemnify both law enforcement officers and others against any liability incurred because of their conduct.
Proposed subsection 15IA(1) provides that the Commonwealth must indemnify a law enforcement officer against any liability the officer incurs as a result of conduct the officer engages in if:
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- the conduct is in the course of duty for the purposes of a controlled operation;
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- the conduct meets the requirements of proposed subsection 15IB(1); and
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- the requirements (if any) specified in the regulations have been met.
Proposed subsection 15IA(2) is in similar terms to proposed subsection 15IA(1) and provides that the Commonwealth must indemnify a person who is not a law enforcement officer against any liability incurred by the person as a result of conduct the person engages in if:
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- the conduct is for the purposes of a controlled operation;
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- a law enforcement officer has authorised the person to engage in that conduct;
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- the conduct meets the requirements of proposed subsection 15IB(2); and
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- the requirements (if any) specified in the regulations have been met.
Where the conditions in proposed subsections 15IA(1) and (2) are satisfied, the Commonwealth must indemnify the law enforcement officer or other person against any liability that arises out of the conduct of the officer or person. This specifically includes any reasonable costs, but will also include any liability caused by the conduct.
Proposed subsection 15IA(2A) provides that certain categories of person cannot receive indemnity from civil liability under the controlled operations regime. These persons are informants, and those involved in the criminal scheme under investigation. This latter category would include, for example, a courier involved in an illegal importation who latter agrees to assist police to secure evidence against the organiser of the importation.
Proposed section 15IB: Requirements that must be met for the purposes of sections 15I and 15IA
Proposed subsection 15IB(1) sets out the circumstances in which a law enforcement officers conduct will satisfy the requirements of proposed subsection 15I(1) (to be exempt from criminal responsibility) and proposed subsection 15IA(1) (to be indemnified from civil liability). The proposed conditions are:
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- at the time the conduct is engaged in there is in force a certificate given under section 15M that authorises the operation;
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- the conduct is within the nature of the activities covered by the certificate; and
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- the conduct complies with any conditions in the certificate.
In addition, the conduct must not involve intentionally inducing a person to commit a Commonwealth, State or Territory offence that that person would not otherwise have intended to commit or an offence of that kind. That is, there must not be an entrapment.
Furthermore, the conduct must not involve the commission of a sexual offence against any person or an offence involving the death of or serious injury to any person.
Persons other than law enforcement officers
Proposed subsection 15IB(2) is in similar terms to proposed subsection 15IB(1) and sets out the circumstances in which the conduct of a person who is not a law enforcement officer will satisfy the requirements of proposed subsection 15I(2) (to be exempt from criminal responsibility) and proposed subsection 15IA(2) (to be indemnified from civil liability). The proposed conditions are the same as for law enforcement officers, except for the additional condition that the certificate must identify the person as being permitted to be involved in the operation.
Proposed section 15IC: Effect of sections 15I and 15IB on other laws relating to criminal investigation
Proposed section 15IC excludes the operation of proposed section 15I (exemption from criminal responsibility) and section 15IA (indemnification from civil liability) when the persons conduct is or could have been authorised under a law of the Commonwealth or a State or Territory in relation to certain criminal investigation powers. Proposed section 15IC identifies those powers as:
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- arrest or detention of individuals
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- searches of individuals
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- entry onto, or searches or inspections of, premises
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- searches, inspections or seizures of other property
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- forensic procedures
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- electronic surveillance devices or telecommunications interception
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- identification procedures
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- any other matter concerning powers of criminal investigation.
The purpose of proposed section 15IC is to make it clear that the proposed new controlled operations provisions do not override or oust specific laws governing the conduct of criminal investigations on specific topics.
Proposed new section 15ID: Compensation for loss or injury
Proposed new section 15ID makes plain the legal situation that would have existed in any event, that where the Commonwealth would be tortiously liable for loss or injury arising from a controlled operation, it is to pay the compensation for which it is liable at law, or otherwise a settled amount. The provision is not intended to give rise to a cause of action, or to render the Commonwealth liable in circumstances where it would not otherwise be liable.
Proposed new section 15J: Application for certificate authorising a controlled operation - by whom and to whom made
Proposed section 15J replaces the existing section 15J and expands who may apply for and who may issue a certificate authorising each type of controlled operation.
Currently, the Australian law enforcement officer who is in charge of a controlled operation may apply for a certificate authorising the controlled operation. Proposed subsection 15J(1) removes the requirement for the person to be in charge of the controlled operation and enables any Australian law enforcement officer to apply for a certificate. This provides necessary operational flexibility. High level control over the authorisation process is maintained by the requirement that only a senior officer can authorise an operation (see below - proposed new subsections 15J(2) to (5)).
Currently, a certificate authorising a controlled operation may be given by certain specified members of the Australian Federal Police and members of the National Crime Authority and there is no relationship between which agency issues a certificate and the functions of the agency.
Proposed subsection 15J(2) performs three functions. First, it provides that senior officers of the AFP and NCA may (and may only) authorise controlled operations where the investigation of the criminal activity that would be the subject of the operation is within the functions of that agency. Secondly, it provides that an operation may only be authorised in relation to a serious Commonwealth offence (see proposed section 15HB, Item 17). Thirdly, it defines which officers of those agencies may issue a certificate authorising a controlled operation.
In the case of the NCA, its members may authorise an operation. This reflects existing paragraph 15J(b). The Chairperson of the NCA is a member (para 7(2)(a) of the NCA Act). In the case of the AFP, the officers who may authorise an operation depend on the anticipated characteristics of the operation. If the operation is a major controlled operation as defined in proposed subsection 15JA(2A), only the Commissioner or a Deputy Commissioner may authorise the operation. These are operates likely to continue from than 3 months, involve infiltration of a criminal group for more than 7 days, or directed against criminal activity involving a threat to human life. If the operation is a controlled operation other than a major controlled operation, it may be authorised by the Commissioner, a Deputy Commissioner or a senior executive AFP employee authorised in writing by the Commissioner to perform the function. This reflects existing paragraph 15J(a).
Proposed section 15J also defines AFP, NCA and Customs authorising officers , in the following terms.
This Item is a transitional provision. Subsection (1) provides that any application for a controlled operation that was made before the commencement of this Schedule and about which a decision has not been made, ceases to have effect on that commencement. Proposed subsection (2) clarifies that subsection (1) does not prevent a new application being made after commencement (ie, under the new scheme).
This Item amends section 15M by omitting satisfied and substituting reasonably satisfied to provide that an authorising officer need only be reasonably satisfied as to the criteria listed in that section before issuing a certificate. This amendment will avoid a suggestion that an authorising officer must be certain as to the course of future events, while still requiring proper consideration of the matters listed.
This Item repeals paragraphs 15M(a), (b), (c) and (d) and substitutes proposed new criteria of which the authorising officer must be reasonably satisfied before he or she issues a certificate authorising a controlled operation. These require consideration of a more extensive range of matters than the existing authorisation criteria, reflecting the broader terms under which operations would be able to be authorised. The proposed criteria are:
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- it is likely that a serious Commonwealth offence [as defined in proposed section 15HB, Item 17] has been, is being, or will be committed;
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- the nature and extent of the offence and any suspected criminal activity that is related to that offence, justifies a controlled operation;
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- conducting the operation must not involve intentionally inducing a person to commit a Commonwealth, State or Territory offence that that person would not otherwise have intended to commit or an offence of that kind (ie, it must not involve entrapment);
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- any unlawful activity involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation;
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- any illicit goods to which the controlled operation relates, and that will be in Australia at the end of the operation, will be to the maximum extent possible under the control of an Australian law enforcement officer;
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- any unlawful activity in conducting the operation will not:
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- seriously endanger the health or safety of any person;
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- cause death of, or serious injury to any person;
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- involve the commission of a sexual offence against any person;
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- result in loss of, or serious damage to, property (other than illicit goods);
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- the operation will be conducted in a way that is consistent with the reporting and accountability requirements of this Part; and
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- if a person who is not a law enforcement officer is to be involved in an operation - the role to be assigned to the person could not be adequately performed by a law enforcement officer.
Existing section 15N sets out the required form and content of a certificate authorising a controlled operation. Subsection 15N(1) requires the certificate to be in writing and signed by the authorising officer. Subsection 15N(2) lists what the certificate must address and includes such matters as the name of the applicant, certain information relevant to narcotic goods and the day on which the certificate was given.
Items 21, 22 and 23 propose amendments to the requirements of subsection 15N(2).
Item 21 will amend subparagraph 15N(2)(c)(ii) and Item 22 will amend subparagraphs 15N(2)(c)(iii), (iv) and (v) by replacing the reference to the narcotic goods with a reference to illicit goods .
The proposed amendments are consequential on the proposed expansion of the controlled operation provisions to be available for the investigation of all Commonwealth offences. This means that a certificate authorising a controlled operation must, to the extent known and relevant, include a description of the nature and quantity of any illicit goods to which the operation relates rather than just to any narcotic goods. The certificate must also, to the extent known and relevant, include a description of the foreign countries through which the illicit goods have passed or are likely to pass; where in Australia, the Australian Customs Service will deal or has dealt with the illicit goods or where the illicit goods have, or are likely to enter Australia.
Item 23 inserts four new matters that must be included in a certificate authorising a controlled operation to ensure that the extent of the controlled operation is clearly established by the certificate. Specifying these issues in the certificate is also relevant to determining the extent of the operation of the proposed exemption from criminal responsibility and immunity from civil liability provisions (see Item 17).
The certificate will be required, in addition to the existing matters listed in section 15N, to:
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- state the nature of the activities covered by the certificate;
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- identify each person who:
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- is not a law enforcement officer; and
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- is permitted to be involved in the operation;
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- for each person identified, state the nature of the activities covered by the certificate in relation to that person; and
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- state any conditions to which the certificate is subject.
This Item proposes a new subsection 15N(2A) to provide that each person who is not a law enforcement officer and who is permitted to be involved in the operation, may be identified by a false name or code. This is intended to protect the identity of that person, and may be achieved via the use of code names as well as alphanumerical codes. The use of false names or code will be permitted if the AFP Commissioner, or the Chairperson of the NCA holds a document that enables the person to be identified from that false name or code.
This Item amends subsection 15N(4) to provide that a certificate may state a day not later than 6 months after the day on which it was given as the day on which the certificate is to cease to be in force. This is a proposed increase from the existing 30- day period, reflecting the need for agencies to be involved in complex, longer-term operations including infiltration of criminal groups. There is provision for mandatory review of a certificate if it is to remain in force beyond 3 months (see Item 28).
This Item inserts a note at the end of subsection 15N(4) to cross-refer to the requirements of proposed section 15OB, that is the requirement that a certificate be reviewed in order to remain in force beyond 3 months (see Item 28).
This Item proposes a new section 15NA to expressly provide for the variation of a certificate. Proposed subsection 15NA(1) provides that an Australian law enforcement officer may apply to an appropriate authorising officer for variation of a certificate given under section 15M.
Under the proposed provision, the application must be in writing, signed by the applicant and include such information as the appropriate authorising officer needs to decide whether or not to grant the application. If the application complies with proposed section 15NA, then the appropriate authorising officer may vary the certificate if he or she is reasonably satisfied that the certificate as varied could have been given under section 15M. This is to ensure that a variation meets all the necessary criteria for the initial issue of a certificate and is not available to circumvent those requirements.
The proposed variation provision also requires the authorising officer to be reasonably satisfied that the variation is necessary for:
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- the success of the controlled operation;
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- the protection of the health or safety of any person; or
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- the protection of property from loss or damage.
Alternatively, the authorising officer may make a variation to ensure that all those involved in the operation have appropriate exemption under section 15I and the appropriate indemnity under section 15IA. This is designed to ensure that if there is a change in the persons who are conducting the operation, that the certificate is varied to cover those persons.
Proposed subsection 15NA(4) requires the appropriate authorising officer to give the applicant a written notice stating whether the certificate is varied and if the certificate is varied, setting out each variation.
Under proposed subsection 15NA(5), a variation of the certificate does not take effect until the notice is given.
This Item inserts two new provisions dealing with terminating and expiry of certificates.
Proposed section 15OA: Termination of Certificate
While the existing section 15O allows a law enforcement officer to surrender a certificate, there are currently no provisions allowing for termination of a certificate. This power may be required where, for example, an operation has been completed or aborted. The proposed provisions enable an appropriate authorising officer to terminate a certificate issued by another authorising officer from the same agency.
Under proposed subsection 15OB(4), written notice of the termination must be sent to the Australian law enforcement officer in charge of the controlled operation.
Under proposed subsection 15OB(5), the notification of termination must state that the certificate is terminated, be signed by the appropriate authorising officer and specify the time when the notice is to have effect.
Proposed section 15OB: Expiry of certificate after 6 months or 3 months
Proposed section 15OB regulates the length of time a certificate may remain in force by establishing a mandatory review mechanism. In the event that the certificate is not reviewed in accordance with the proposed provisions, the certificate will expire after 3 months.
Proposed subsection 15OB(1) provides that a certificate given under section 15M expires at the end of the period of 6 months after the day on which it was given unless proposed subsection 15OB(2) applies.
Proposed subsection 15OB(2) provides that a certificate expires at the end of the period of 3 months after the day on which it was given unless, during that period a nominated Tribunal member (as defined in proposed section15OV; Item 28A) has:
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- reviewed the certificate, and
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- decided that the certificate should be in force for 6 months.
Proposed subsection 15OB(3) provides that the review is to occur during the last two weeks of the 3-month period after the day on which the certificate was given.
Proposed subsection 15OB(4) provides that a nominated Tribunal member must not decide that a certificate is to remain in force for 6 months, unless he or she is reasonably satisfied as to all the matters referred to in paragraphs 15M(a) to (h). As with the proposed variation provisions, the need to be reasonably satisfied of the matters listed in section 15M means that a certificate will not remain in force unless the criteria for the initial issue of a certificate exist.
Proposed subsection 15OB(5) requires the nominated Tribunal member to give written notice of his or her decision to the Australian law enforcement officer in charge of the relevant controlled operation.
This Item inserts proposed section 15OC, which identifies the nominated Tribunal member(s) who are to perform the function of reviewing controlled operations authorisation certificates before they can remain in force beyond 3 months, under proposed section 15OB. It also provides these members with certain protections.
Under proposed subsections 15OC(1) and (2), the persons who may perform the review function are members of the Administrative Appeals Tribunal who have been nominated to perform the function by the Minister administering the Crimes Act. The Minister may only nominate more senior Tribunal members, or those with at least 5 years enrolment as a legal practitioner.
Under proposed subsections 15OC(3), nominated Tribunal members who are undertaking reviews and deciding whether a certificate should remain in force have the same protection and immunity as that held by a Justice of the High Court has in relation to a proceeding of that court.
The provisions are modelled, in substance, on section 6D of the Telecommunications (Interception) Act 1979 .
This Item makes a minor drafting amendment to existing paragraph 15P(3)(b) to provide that a surrender notice under section 15O takes effect at the time specified in the notice.
This Item repeals existing paragraph 15P(3)(c) and proposes two new provisions dealing with the time a certificate is in to remain in force. Proposed paragraph 15P(3)(c) provides that if a certificate is terminated under proposed section 15OA (see Item 28) then the certificate remains in force until the time specified in the termination notice. Under existing paragraphs 15P(3)(a) and (b), a certificate expires on the date specified in the certificate or on surrender. The overarching limitation is contained in proposed paragraph 15P(3)(d) - in the absence of earlier expiry, surrender or termination, the certificate remains in force until the certificate expires after 6 months (or in the absence of a review - after 3 months), under proposed section 15OB (see Item 28).
This Item inserts proposed section 15PA, which clarifies the effect of a person covered by a certificate being unaware of the variation, surrender, termination or expiry of the certificate. The purpose of this section is to ensure that a person remains exempt from criminal responsibility and indemnified from civil liability where it would be unjust for the person to be liable.
Proposed subsection 15PA(1) provides that where a certificate has been varied in a way that limits its scope, the exemption and indemnification continue, for so long as the person:
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- is unaware of the variation; and
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- is not reckless with respect to the existence of the variation.
Proposed subsection 15PA(2) provides that where a certificate has been surrendered or terminated or has expired, the exemption and indemnification continue, for so long as the person:
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- is unaware of the variation; and
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- is not reckless with respect to the existence of the variation.
Existing section 15Q requires notice to be given to the Chief Executive Officer of Customs when a controlled operation will involve narcotic goods which may be dealt with by Customs. This Item makes a minor amendment to subsection 15Q(1) to provide that section 15Q applies where there are certificates issued by AFP and NCA authorising officers and where the applicant for the certificate believes that illicit goods (as opposed to the current limitation to narcotic goods) may be dealt with by Customs. The purpose of the section is to require the applicant for the certificate to forewarn the Chief Executive Officer of Customs in such cases.
This Item proposed an amendment to subparagraphs 15Q(2)(c)(i) and (ii) to replace references to narcotic goods with references to illicit goods as a consequence of the amendment proposed by Item 32.
This Item repeals section 15R and substitutes it with a new section 15R that provides for a quarterly reporting requirement for controlled operations. The proposed new section provides that the AFP Commissioner and NCA Chairperson must, within two weeks after the end of each quarter, give to the Minister a report informing the Minister of certain things that occurred during the quarter.
The proposed section provides that the report must inform the Minister of each decision to grant or refuse an application for a controlled operation, each variation, review, surrender or termination of a certificate, and any certificate that is still in force at the end of the quarter.
This Item repeals subsections 15S(1) and (2) and substitutes proposed new subsections, which provide details of the information that must be included in the report about controlled operations submitted to the Minister under proposed section 15R (see Item 34).
Proposed paragraph 15S(1)(a) provides that the report must include the reasons for each decision to grant or refuse an application for a controlled operation, each variation of a certificate and each review of a certificate.
Proposed paragraph 15S(1)(b) provides that the report must include sufficient details of each surrender or termination of a certificate and each certificate that is still in force at the end of that quarter to enable the certificate to be identified.
Proposed subsection 15S(1A) provides that the reasons included in the report for granting a certificate authorising a controlled operation must include an indication of the extent to which the authorising officer, in making the decision, took into account the seriousness of the Commonwealth offence in relation to which the certificate was given and any suspected criminal activity that is related to that offence.
Proposed subsection 15S(2) sets out additional information that must appear in the report where a certificate for a controlled operation that was carried out ceases to be in force during that quarter. These include such matters as:
- •
- identifying each person targeted by the operation (while the conduct of an identified person is no longer a matter that the authorising officer must take into account in issuing a certificate, it is expected that during the course of the operation the identity of that person will become known); and
- •
- each person whose conduct was covered by the certificate and state whether the person was a law enforcement officer at the time of the operation.
If the operation involved illicit goods the report must also state to the extent known, the nature and quantity of the illicit goods and the route through which the illicit goods passed in the course of the operation. This is intended to be a general description identifying key locations, rather than a requirement for a minute by minute, street by street account of any journey between such locations.
Proposed paragraph 15S(2)(e) provides that if the operation involves illicit goods that are narcotic goods the report must also contain additional information. The report must:
- •
- identify the agency to which any law enforcement officer who, in the course of the operation, had possession of the narcotic goods belonged;
- •
- identify, to the extent known, any person (other than a law enforcement officer) who, in the course of the operation, had possession of the narcotic goods;
- •
- state whether or not the narcotic goods have been destroyed; and
- •
- if the narcotic goods have not been destroyed and are in the possession of a law enforcement officer, identify the agency of that law enforcement officer and, in any other case, identify the person or state that it is not known who has possession of the goods.
The proposed additional reporting requirements for narcotic goods are designed to ensure appropriate accountability and control in relation to such items.
This Item proposes a minor drafting amendment to subsection 15S(3) by omitting narcotic goods and substituting the controlled operation involved narcotic goods that. The amendment reflects the fact that, under proposed section 15H a controlled operation does not necessarily involve narcotic goods.
This Item proposes the repeal of subsection 15S(4) as the requirements currently in this subsection (as to who must make the report to the Minister) are now covered by proposed section 15R (see Item 34) .
This Item amends subsection 15S(5) to provide that where disclosing the identity of any person (the current provision is limited to those who had possession of narcotic goods) might, for example, endanger the safety of the person, then that person may be identified by a code.
This Item makes a consequential amendment to subsection 15S(5) to provide that where a report is required to identify any person, then that requirement can be continue to be satisfied by reference to a code. This applies when identifying the person may endanger the safety of the person or prejudice an investigation or prosecution.
This Item proposes a minor amendment to paragraph 15S(5)(c) to replace the reference to code name with a reference to the more general term code, thereby clarifying that a code can employ numbers or other symbols.
This Item is a transitional provision in relation to the timing of the submission of quarterly reports. In essence, the old reporting requirements would apply to decisions and actions under the pre-amended provisions; and the new reporting requirements would apply to decisions and actions under the amended provisions.
This Item proposes a minor amendment to paragraph 15T(2)(b) to replace a reference to section 15S with a reference to section 15R. This is a result of the restructuring of the reporting provisions.
This Item amends subsection 15T(3) to provide that a report to the Minister under section 15T is not to include any information about a person, including the persons name, unless that information is already in the public arena. This would remove an anomaly in the existing provision, in that it is impossible to name a person in a report without implying something about the person.
(Item 44 was removed in the Senate.)
This Item repeals subsection 15U(1) and substitutes it with a new provision which provides that in a prosecution for a Commonwealth offence a document purporting to be a certificate given under section 15M may be tendered in evidence and is conclusive evidence that the authorising officer who gave the certificate was satisfied as to the facts that it states. It is proposed that this will apply to the extent that those facts are facts of a kind that are required under section 15N to be included in the certificate.
Under the existing provisions, a certificate must be tendered, even if it is of no particular relevance. Further, it is only prima facie evidence, even though these are essentially formal matters that are not central to the substantive question of a persons guilt or innocence.
(Item 46 was removed in the Senate.)
This Item omits the reference to shall in subsection 15U(2) and replaces it with a reference to may to make the tendering of true copies discretionary rather than mandatory.
This Item is a transitional provision that clarifies that Part 1AB of the Crimes Act as amended by this Act does not apply to certificates given under section 15M that were in force immediately before the commencement of this Schedule.
Item 49 inserts proposed Division 2A, containing proposed sections 15UA to 15UD in Part 1AB of the Crimes Act. Division 2A would be entitled Monitoring of controlled operations by the Ombudsman.
Proposed section 15UA: Ombudsman to be notified of certain matters
Proposed subsection 15UA(1) requires the AFP Commissioner and NCA Chair to give the Ombudsman copies of the quarterly reports required to be given to the Minister under the proposed new section 15R (Item 34).
Under proposed subsection 15UA(2), the Ombudsman may require the Commissioner or Chair to furnish additional information about the decisions concerning controlled operations that are the subject of the section 15R reports.
Proposed section 15UB: Inspection of records by Ombudsman
Proposed subsection 15UB(1) provides that the Ombudsman must inspect the records of the AFP and NCA concerning controlled operations at least once every 12 months, and may do so more often, and at any time.
Proposed subsection 15UB(2) provides that the Ombudsman is not required to inspect records in relation to an ongoing operation.
Proposed section 15UC: Annual reports by Ombudsman
The proposed section provides for the Ombudsman to report to Parliament annually on the Ombudsmans activities under this Division and on the comprehensiveness and adequacy of the reports to Parliament on controlled operations made under section 15T.
Proposed subsection 15UC(1) provides that the Ombudsmans report is to be made to the President of the Senate and Speaker of the House of Representatives; and sets out the requirement to report on the Ombudsmans activities.
Proposed subsection 15UC(2) sets out the requirement to report on the comprehensiveness and adequacy of the section 15T reports.
Proposed subsection 15UC(3) provides that details of the participants in an operation that is ongoing at the end of a reporting year are to be detailed in the next report after the operation is completed, and need not be reported while the operation continues.
Proposed section 15UD: Ancillary matters concerning reports
Proposed subsection 15UD(1) provides for the exclusion from a report by the Ombudsman of material that, if made public, could reasonably be expected to endanger a persons safety, prejudice an investigation or prosecution, or compromise an agencys operational activities or methodologies.
Proposed subsection 15UD(2) provides that the Ombudsman must give a copy of a report to AFP Commissioner and/or the NCA Chair as appropriate, and also to the Minister responsible for that agency.
Customs Act 1901
This Item inserts proposed subsections 233(3A) and (3B) in the Customs Act.
The existing subsections 233(1) and (2) make it an offence to:
- (a)
- smuggle any goods;
- (b)
- import any prohibited imports;
- (c)
- export any prohibited exports; or
- (d)
- unlawfully possess or convey any smuggled goods or prohibited imports or prohibited exports.
The proposed new subsections create a simplified regime to allow the Australian Customs Service to conduct controlled deliveries in relation to suspected unlawful smuggling, importation and exportation and related activity. It is not intended that this provision be used for the kind of wide-ranging operation or long term deep infiltration that the AFP and NCA would be able to engage in.
Under proposed subsection 233(3A), Customs officers would have immunity from criminal liability for the possession or conveyance, or for facilitating the possession or conveyance, of prohibited imports, prohibited exports and smuggled goods. The immunity would extend to Commonwealth, State and Territory offences relating to that possession, conveyance or facilitation. The prerequisite to the immunity is that the officer is acting in the course of duty.
The terms Customs and officer are defined in section 4 of the Customs Act.
Under proposed subsection 233(3B), a person other than a Customs officer can be immune from criminal liability for the same matters, and in the same terms, as a Customs officer under subsection 233(3A), subject to the following prerequisites:
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- the person is acting subject to written instructions;
- •
- those instructions were issued by a Customs officer acting in the course of duty; and
- •
- those instructions refer to section 233.
The requirement for writing and for a reference to section 233 are designed, in part, to ensure that immunity is not given inadvertently to a person not intended to receive immunity.
This Item inserts proposed subsection 233(6) in the Customs Act and is consequential on Item 50. The proposed subsection would require the Minister to report to Parliament annually on controlled deliveries undertaken by Customs officers, pursuant to the immunity from criminal liability that would be available under proposed subsection 233(3A).
The deadline for reporting to Parliament is the same as that applying to the AFP and NCA in relation to controlled operations, pursuant to section 15T of the Crimes Act.
National Crime Authority Act 1984
Item 52 inserts proposed section 55AA in the NCA Act. This would require the Ombudsman to brief the Parliamentary Joint Committee on the National Crime Authority on the NCAs involvement in controlled operations during the proceeding 12 months. The briefing must occur in private session.
This amendment is linked to the Ombudsmans oversight powers in respect of controlled operations, under proposed Division 2A of Part 1AB, to be inserted by Item 49.
The role, functions and proceedings of the Parliamentary Joint Committee on the National Crime Authority are governed by Part III of the NCA Act.