Second Reading Speech
Dr Stone (Parliamentary Secretary to the Minister for the Environment and Heritage)I move:
That this bill be now read a second time.
This government is committed to a modern, effective approach to law enforcement. The Measures to Combat Serious and Organised Crime Bill 2001 will update a whole range of laws governing the investigation of crime by federal law enforcement agencies.
Schedule 1 to the bill contains a new scheme for the conduct of controlled operations. Controlled operations are a vital criminal investigation tool. In a `controlled operation', law enforcement officers allow criminal activity to proceed, in order to gain evidence of the broader criminal scheme and apprehend the organisers and financiers.
Under the existing part 1AB of the Crimes Act 1914, a controlled operation may only be conducted in relation to suspected narcotics offences. The authorisation period is limited to 30 days and there is no scope for civilian participation. These and other limitations severely hamper the ability of law enforcement agencies to effectively infiltrate and combat organised crime. The new regime removes these limitations. Law enforcement agencies would be able to use controlled operations to investigate a much broader range of Commonwealth offences, as long as detailed authorisation criteria are followed. A certificate could remain in force for up to six months, subject to a mandatory review at the three-month mark.
Law enforcement officers, and other persons specified in a certificate - excluding informants - would have access to criminal immunities and civil indemnities. Existing requirements for agencies to report to the minister and for the minister to report to parliament would be enhanced.
The proposed controlled operations regime was amended in the Senate, following a report on the bill by the Senate Legal and Constitutional Legislation Committee. There were also extensive and constructive negotiations between the government and opposition.
Although a number of changes do not reflect the model this government preferred, we were prepared to accept them to ensure passage of this important legislation.
The amendments include provision for oversight of control operations records by the Ombudsman, and the mandatory review of an operation would be conducted by an Administrative Appeals Tribunal member.
Customs have been excluded from the main scheme, but will be covered by a narrower regime allowing controlled deliveries of prohibited imports, prohibited exports and smuggled goods, under the Customs Act.
Recent events have highlighted the necessity for these powers, to tackle crime at the organisational level, including money laundering and people smuggling operations.
Schedule 2 to the bill establishes a framework to govern the use of assumed identities by law enforcement and intelligence officers where there is a Commonwealth agency involved, either as the issuer of the identity or as the agency authorising the use of the identity.
Assumed identities are false identities adopted to facilitate intelligence and investigative functions, or infiltration of a criminal, hostile or insecure environment with a view to collecting information and investigating offences.
The agencies expressly authorised to use the assumed identities scheme would include the Australian Federal Police, National Crime Authority, Australian Customs Service, Australian Security Intelligence Organisation, Australian Secret Intelligence Service, and state and territory police services and anti-corruption agencies.
Officers and others who use an assumed identity in an authorised manner would not be criminally liable for that deception, and, where such use is authorised by a Commonwealth agency, they would be indemnified by the Commonwealth for any civil liability. This means that a third party who suffers loss would have a right of recovery against the Commonwealth.
Misuse of an assumed identity would be an offence carrying up to 12 months imprisonment.
Commonwealth agencies would have to retain and audit records, and to report annually on their use of assumed identities.
Intelligence agencies would report to the Inspector-General of Intelligence and Security.
Law enforcement agencies would report to their respective ministers, who would report to parliament.
Schedule 3 to the bill contains important new protections for child complainants and child witnesses in Commonwealth sex offence trials.
The proposed protections would apply to witnesses and complainants under the age of 18 in proceedings for Commonwealth sexual offences, including child sex tourism and sexual servitude offences.
The provisions are intended to minimise the distress and trauma experienced by child witnesses in giving evidence and ensure they are able to testify as effectively and unreservedly as possible.
The proposed protections are consistent with the recommendations in the Model Criminal Code Sexual Offences Against the Person report, and have been commended by the New South Wales Commission for Children and Young Persons.
Child witnesses would be able to give evidence by means of closed-circuit television.
Children giving evidence in a proceeding would also be able to be accompanied by an adult of their choosing, to provide them with reassurance and support while testifying.
Under these amendments, the Commonwealth will be at the forefront in having rules to govern child witness testimony that take into account the latest legal and psychological analysis.
Most of the amendments in schedule 4 to the bill are the result of a review of part 1C of the Crimes Act, and also contain further refinements following the report of the Senate Legal and Constitutional Legislation Committee on the bill.
Part 1C allows investigating officials to lawfully detain suspects for questioning and confers a range of rights and protections on suspects.
The proposed amendments to part 1C clarify the operation of the part, to ensure that safeguards are given full effect and address some problems that have hampered effective law enforcement.
In particular, the amendments replace the concept of `deemed arrest' with the notion of `protected suspect', to make it clear that in the absence of a lawful arrest there is no power to detain a person.
Schedule 5 to the bill contains proposed amendments to the listening device provisions in the Customs Act 1901 and the Australian Federal Police Act 1979 to permit a warrant to be used in relation to a particular item where a suspected offender cannot be identified.
Schedule 6 to the bill contains proposed amendments to the Financial Transaction Reports Act 1988 to clarify and update the operation of the act.
Schedule 7 to the bill amends section 85ZL of the Crimes Act to provide that the exemption allowing the use and disclosure of `spent convictions' information previously held by the National Exchange of Police Information will now be held by the new CrimTrac agency.
The measures contained in the bill will ensure that investigative powers remain relevant to contemporary law enforcement needs and keep pace with developments in criminal activity.
I commend the bill to the Main Committee. I present the revised explanatory memorandum.
Copyright notice
© Australian Taxation Office for the Commonwealth of Australia
You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).
