- Home
- Hansard & Papers
- Legislative Assembly
- 29 March 2006
Law Enforcement (Controlled Operations) Amendment Bill
Printing Tips |
Print selected text
| Full Day Hansard Transcript
« Prior Item |
Item 4 of 47
| Next Item »
Page: 21658
Second Reading
Debate resumed from 8 March 2006.
Mr ANDREW CONSTANCE (Bega) [10.32 a.m.]: The Opposition will not oppose the Law Enforcement (Controlled Operations) Amendment Bill, which is designed to increase from 6 to 20 the number of senior New South Wales police officers able to authorise controlled operations. These operations will now be able to be authorised by all officers of or above the rank of assistant commissioner, plus two officers of or above the rank of superintendent as nominated by the Commissioner of Police.
The legislation amends the Law Enforcement (Controlled Operations) Act 1997, which provides for the authorisation, conduct and monitoring of law enforcement operations that involve what might otherwise be unlawful activities. It also legitimises the actions of undercover officers and permits evidence obtained in authorised controlled operations to be classified as legal and prima facie admissible. The Government conducted a review of the Act in 2003 and the review report was tabled in this House in June 2004. It is important to note on the record that the total number of controlled operations has increased steadily over the past five years. There has also been a marked increase in the number of variations authorised. The New South Wales Ombudsman handed down a report on the Act, which states
The majority of the operations involved investigating criminal activities associated with the supply, possession, cultivation and or manufacture of prohibited drugs. 351 controlled operations were connected in some way to prohibited drugs. 19 operations solely targeted firearm and other prohibited weapons offences. 16 operations targeted robbery, armed robbery, theft or stolen property offences. There were 11 operations which involved the investigation of murder, conspiracy to murder or attempted murder. One involved investigating manslaughter. Four others were targeting offences relating to prostitution and four operations targeted fraud offences.
The bill not only increases the number of New South Wales police officers able to authorise controlled operations but also replaces the section of the Act that provides for the granting of retrospective authority for unlawful activities undertaken in New South Wales. In addition, it provides for a legislative regime under which law enforcement agencies may carry out cross-border controlled operations, for a further review of the Act to be undertaken as soon as possible after five years from the date of assent, and for a report on the outcome of the review to be tabled in each House of Parliament.
The Opposition's view is that this is about having checks and balances in the system. Obviously we want to provide surety and security to officers involved in controlled operations. However, we must also have safeguards. The Opposition noted a report in the Sunday Telegraph of 19 March 2006 by Neil Mercer that police allowed seven kilograms of cocaine worth more than $1 million to be sold on Sydney streets in an undercover operation and failed to recover most of it. According to the report, six kilograms of the drug was never recovered. Obviously that is the subject of court proceedings. We must ensure that we have checks and balances in the system.
The Minister for Police spoke in this House about the need for the authorisation, conduct and monitoring of such operations. Ultimately, the buck stops with the Minister with regard to these types of events. Of course, the Opposition recognises the work that is being done by police officers in controlled operations. We want to highlight to the Government that it must ensure that resources are available so that these operations can be carried out and that events such as the one to which I referred do not occur again.
Of course, this comes back to a question of resources. At its peak in 2003, NSW Police had 15,168 sworn officers. As of 28 February this year, there were just 14,579 sworn officers. That is a decrease of 600 police officers. Of course, we had the smoke-and-mirrors policy announcement in March with the Premier saying that we will have record police numbers by the end of the year—just in time for the election. He will increase the number to 15,206, a mere 38 more than the total number in 2003. No doubt we will engage in a squabble about police numbers, but the community needs the facts. The numbers are there in black and white.
This Government is waging a duplicitous campaign with regard to police numbers. If the police are to carry out these controlled operations—which obviously are designed to be protected under this legislation—they must be provided with the appropriate resources. We cannot continue to increase the number of controlled operations without providing the resources for this dangerous work. We must ensure that this State continues to provide police with the resources and support they deserve. That is important not only from a community perspective but also from the police perspective.
I will refer briefly to the legislation's retrospectivity. In the 2003-04 report on the Law Enforcement (Controlled Operations) Act 1997, the Ombudsman noted that the controlled activities that various agencies engaged in included conversations, negotiations, purchase, possession and other activities concerning the supply and manufacture of prohibited drugs, entry onto private property and removal of a vehicle, installation of surveillance equipment requiring entering into enclosed lands and trespass to real property, and activities concerning stolen goods. The Legislation Review Committee also made reference to the fact that there could be an impact on third parties who are in no way involved in the alleged criminal behaviour. I want to draw the House's attention to section 14 of the Act, which seeks to provide safeguards and measures relating to retrospective authorisation. The nature of retrospective legislation is to ensure that evidence of criminal activity is not later rendered inadmissible by the courts. We need to draw the community's attention to new section 14 (5).
It provides that the retrospective authority under the section may not be granted unless the Commissioner of Police is satisfied, first, that the following circumstances existed when the relevant conduct occurred: the participant who engaged in the conduct believed on reasonable grounds that there was substantial risk to the success of the authorised operation; or that there was a substantial risk to the health or safety of a participant in the operation, or any other person, as a direct result of the conduct of the authorised operation; or that criminal activity or corrupt conduct other than the criminal activity or corrupt conduct in respect of which the authorised operation is being conducted had occurred, or was likely to occur, and that there was a substantial risk that evidence relating to that criminal activity or corrupt conduct would be lost; second, that at all times prior to those circumstances arising the participant had been acting in good faith and in accordance with the relevant code of conduct; third, that the participant had not foreseen, and could not reasonably be expected to have foreseen, that those circumstances would arise; fourth, that, had it been possible to foresee that those circumstances would arise, authority for the relevant conduct would have been sought; and, fifth, it was not reasonably possible in those circumstances for the participant to seek a variation of the authority for the operation to authorise the relevant conduct.
Obviously there is a strict regime for the granting of retrospective authorisation. Parliament needs to note the Legislation Review Committee's reference to the fact that the application of proposed section 14 could lead to abuse of powers created under controlled operations authorised by the Act. It also notes the impact it could have on third parties. The Minister might address in his reply the question of whether the ability to retrospectively grant authorisation unduly trespasses on the rights and liberties of third parties adversely affected by the conduct of controlled operations under the Act.
The Government has indicated that consultation on the bill took place not only with NSW Police but also with the Crime Commission, the Independent Commission Against Corruption, the Police Integrity Commission, the Attorney General, and the Special Minister of State—obviously from the perspective of the Minister for Police. As I said, we will not oppose the bill. I cannot reiterate enough that we have some very talented police officers in this State who are working in pressure cooker situations, and legislation such as this is designed to assist them. We must ensure that the checks and balances are in place so that we do not see a repeat of the headlines we saw on 19 March.
Mr PAUL LYNCH (Liverpool) [10.43 a.m.]: I support the Law Enforcement (Controlled Operations) Amendment Bill. This is important legislation—far too important to have been subjected to the juvenile comments we just heard from the honourable member for Bega, who wants to turn this into a debate about police numbers. This is actually quite an important policy issue. It is confirmation of the policy-free nature of the members for Ku-ring-gai and Bega that all they can do in this debate is ignore the substantive policy issues and try to make cheap partisan political points and attack the police while they are at it. It is a really good example of how appalling the Opposition is on this issue. The bill amends the 1997 legislation, provoked by the High Court decision in Ridgeway v R (1995) 184 CLR 19.
[Interruption]
In response to that interjection by the member for Bega, if he had done more than read the Legislation Review Committee report about retrospectivity, he would know precisely what is in the bill. He did not read the bill; he only read the report. I will have some pleasure towards the end of my speech in talking about retrospectivity and pointing out the protection that the member is incapable of pointing to. He has not read the bill and he does not know what the protection is.
Mr Andrew Constance: You cannot answer the question.
Mr SPEAKER: Order! The honourable member for Bega will come to order.
Mr PAUL LYNCH: The honourable member for Bega has already indicated his absence of policy on this issue and his lack of understanding, and the contribution he made today was quite childish. As I was saying before his childish interjections, the bill was provoked originally by Ridgeway v R, in which Ridgeway was charged with importing heroin. Australian Federal Police officers in that case did things that were an essential part of the offence and the High Court therefore excluded the evidence. The amendments in the bill will allow police and others to commit what would otherwise be criminal offences without suffering the normal consequences, and allow evidence thus obtained to be admitted in court proceedings. It is thus extraordinarily important legislation. It is important in a democratic society ostensibly characterised by the rule of law that this legislation work effectively and be subject to effective safeguards.
The current legislation arises from a review of the Act. It has, it is fair to say, been a long time coming and has attracted a degree of interest. If the member for Bega had followed this he might have made that a criticism. As I say, he has not followed the history of the legislation. The committee I chair, the Committee on the Office of the Ombudsman and the Police Integrity Commission, has been interested in the legislation. A statutory review of the Act was conducted by the Ministry of Police in 2003 and a review report was tabled in Parliament in June 2004. Despite what might otherwise be obvious criticism, I do not think that is necessarily a bad thing. Certainly this bill, in my view, is a considerable improvement on some of the more extreme provisions considered during the review process and if it has taken a little longer to make sure the proposals are better than they would otherwise be, the extra time should not be begrudged.
There are three main aspects to these amendments. The number of people who can authorise controlled operations—what is otherwise criminal behaviour—is expanded. The provisions for retrospective approval are widened, and a regime for cross-border controlled operations is introduced. The purpose of controlled operations is to detect and prevent serious crime and corruption. Those authorised under the Act to engage in criminal behaviour are NSW Police, the Independent Commission Against Corruption, the Crime Commissioner, the Police Integrity Commission [PIC], and Commonwealth law enforcement agencies. My committee's interest stems from the role played by the bodies that we oversight and their relation to controlled operations.
The PIC is one of the bodies that can be authorised to conduct controlled operations. Part 4 of the Act provides that the Ombudsman is to monitor the operation of the Act and report annually to the Parliament. The PIC inspector played a role in the development and oversight of codes of conduct used by agencies in relation to controlled operations and carried out an earlier review of the Act. There has been discussion for some time about aspects of the scheme. Law enforcement agencies, and specifically NSW Police, were concerned about the role of the Ombudsman. The Act provides inter alia that copies of applications be inspected by the Ombudsman. The police introduced a new application form that in the Ombudsman's view did not provide the information he believed was necessary. My committee reported on that issue to Parliament. The police eventually adopted the Ombudsman's suggestions.
There was also some dispute about the Ombudsman's jurisdiction. One view was that he was confined to matters concerning the maintenance of documents and the provision of relevant reports. Following the 2004 review of the Act, the Ministry for Police argued that police were unnecessarily seeking approval for acts not within the scope of the Act, including many minor matters. This of course is a fundamental misunderstanding of the legislation, as was made clear in Minister Whelan's original second reading speech.
Rather than deal with this misunderstanding of the Act the Ministry of Police argued for the introduction of a two-tier system of approvals that in my view had some grave dangers. The committee that I chair did not indicate support for that proposal in the absence of detailed analysis to justify such a significant change, and I am delighted to notice that it is absent from the bill. Amending legislation is not an appropriate course to remedy the fact that the objectives of the Act are not properly understood and that controlled operations do not include normal policing activity.
Another issue is the range of people who can authorise a controlled operation. In this instance the legislation makes changes. During the first review of the Act by then PIC Inspector Finlay, proposals emerged to expand the number of people who could approve applications. This legislation inserts a proposed new section 29, which expands the number, from six to 20, and the rank of officers who can approve a controlled operation. This provision will of course deserve scrutiny as to how it operates. At present, as I understand it, applications pass through police legal services for advice and checking. Expanding the number of approving officers may break down the present centralised, high-level advice. This has the danger of increasing potential for errors and non-compliance with the Act. Whether this is a realistic fear or not will, I think, become clear through the monitoring and auditing of controlled operations by the Ombudsman.
Another provision in the legislation relates to retrospective approval, that is, approving illegal behaviour after it has occurred. The current legislation provides that such retrospective authorisation can only be granted for activity that protects someone from death or serious injury. The amendment in this legislation expands the protection if the person who performed the illegal activity believed on reasonable grounds that there was a substantial risk to the success of the operation or to the health or safety of any person, or that evidence relating to other criminal and/or corrupt activity would be lost and that the person who undertook the unlawful activity could not avoid the risk otherwise than by undertaking the activity. Additionally, the person could not have foreseen and could not reasonably be expected to have foreseen that the relevant circumstances had arisen.
That is a significant broadening of the categories of activities that can gain retrospective approval. However, despite what the honourable member for Bega said, and again recognising that he had not read the bill, it is not carte blanche. For example, it does not allow approval unless the unlawful activity occurs during the course of an authorised operation. Effectively, it is a limited approval to vary controlled activities arising from previously approved operations. In that sense it is consistent with the previously expressed position of Inspector Finlay and the Ministry of Police. It is, I believe, an incremental change, and it is certainly not as dramatic as might otherwise have been suggested.
I am interested to see how these unforseen unlawful activities will be recorded and how information to support the application will be provided. I must say, they seem to be the real issues with respect to approvals, rather than some of the inane rhetoric of the honourable member for Bega. Fairly obviously, the usual careful monitoring by the Ombudsman in this situation will be particularly important. It would certainly be undesirable if approving officers bring less discipline to their decision making because of the scope of retrospective authorisations. Once again, whether that fear is realistic will be determined by monitoring and auditing by the Ombudsman. The last point I make on this aspect is that it is curious that in all the paper and discussion generated on retrospective approvals, the committee that I chair has not been made aware that the present restrictions on retrospective approvals have actually created operational difficulties.
The final substantial change in the legislation relates to cross-border controlled operations. This provision aims for a legislative scheme under which law enforcement agencies may carry out cross-border investigations of criminal activities. I note the comment in the second reading speech by the Parliamentary Secretary—not, as the honourable member for Bega said, the Minister—that it is envisaged that cross-border operations will comprise only a small percentage of the total number of controlled operations by New South Wales agencies.
An authorisation issued under the law of another State will have effect in New South Wales as if it were issued under our legislation. A New South Wales authorisation will have effect in another jurisdiction as if it were authorised under that jurisdiction. Once again, oversight by the Ombudsman applies here. If the number of these instances is extreme—that is, greater than presaged in the second reading speech by the Parliamentary Secretary—that will presumably be apparent through the Ombudsman's auditing.
Finally, the legislation requires a further review of the principal Act in five years, with the outcome to be tabled in Parliament. This seems to be a review by the Minister. There is perhaps an argument that an independent body should perform the review of the Act, on the basis that the first review was conducted by Inspector Finlay. Despite that, I am delighted to commend the bill to the House.
Mr THOMAS GEORGE (Lismore) [10.53 a.m.]: The Law Enforcement (Controlled Operations) Amendment Bill provides, within the Law Enforcement (Controlled Operations) Act 1997, a legislative scheme under which law enforcement agencies may carry out cross-border investigations in relation to criminal activities. The bill substantially adopts the provisions of a model law for such a scheme. As the Legislation Review Committee noted in Legislation Review Digest No. 3 of 2006, the report on the statutory review of the Act recommended several significant changes to the Act, including the expansion of the number of senior NSW Police officers able to authorise controlled operations, the expansion of the circumstances in which a retrospective authorisation may be granted, and the introduction of cross-border provisions in relation to operations that cross over from New South Wales into other jurisdictions.
According to the New South Wales Ombudsman's 2004-05 report on the Act, the total number of operations under the Act has increased steadily over the past five years, together with a marked increase in the number of variations authorised. The report noted the following breakdown of controlled operations conducted by NSW Police. The majority of the operations involved investigating criminal activities associated with the supply, possession, cultivation and/or manufacture of prohibited drugs—351 controlled operations were connected in some way to prohibited drugs. Over the past few years since I have been representing the seat of Lismore, which joins the Queensland border, sadly we have had some problems associated with Nimbin. I have continually raised those problems in this House and with the Minister for Police. I am sure that police in the Northern Rivers region and the north of the State will appreciate having these cross-border issues addressed.
The bill expands the number of police officers to whom the chief executive officer of NSW Police, that is the Commissioner of Police, may delegate his or her functions under the Act. I am sure I speak for the Richmond area command and also the Tweed area command in saying this. It is commendable that the bill expands the number of police officers to whom the chief executive officer, the commissioner, can delegate his or her functions, but we need the extra police to be able to continue the fight against what is happening in the Northern Rivers area. Indeed, I am sure it is an ongoing problem right across the State. I reinforce what I have been saying in this House for some time now and to the police Minister: We need the extra police to conduct these inspections and carry out law enforcement that is needed in the Northern Rivers area, and to be able to work with authorities across the border. No doubt that issue is now being addressed.
I will even go as far as saying we need a drug enforcement unit right across the northern part of the State to combat these problems. It is all right to expand the authority of police officers, but if they do not have the work force under them to be able to address these issues it is a waste of time. I place on record my support for extra police being allocated to the north of the State, to address the issues raised by the Ombudsman in his 2004-05 report.
Mr GRAHAM WEST (Campbelltown—Parliamentary Secretary) [10.57 a.m.], in reply: Retrospective authorisations may be applied for where a participant in an authorised controlled operation engages in conduct outside the scope of the original authority. The intent is to allow undercover officers to exercise their initiative. However, retrospective authorisations can only be granted if certain strict criteria are met. To remind the House of the safeguards, retrospective authorisations can be granted only in circumstances where the participant reasonably believed that there was a substantial risk to the success of the authorised operation and that the risk could not be avoided except by engaging in the relevant conduct.
The authorising officer must be satisfied that the participant had not foreseen, and could not reasonably be expected to have foreseen, that those circumstances would arise, and that, had it been possible to do so, authority for the relevant conduct would have been sought before the authorised operation took place. Important safeguards have been built into the bill. An authorising officer will be required to comply with the strict provisions of the Act and will be subject to internal and external oversight by the New South Wales Police Professional Standards Command and the New South Wales Ombudsman. Additionally, individual operations are subject to stringent internal administrative anticorruption mechanisms, for example when the amount of money required to make a controlled purchase is over a certain amount and when an undercover operative is involved.
Further, I point out that police cannot use controlled operations to entrap people. Under section 7, authority to conduct a controlled operation cannot be granted if it involves a participant inducing or encouraging another person to engage in criminal activity that the other person could not reasonably be expected to engage in unless so induced or encouraged. NSW Police has more officers than most other police agencies. We now have record police numbers, and the Government has already announced that another 750 are on the way. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
Last modified 05/12/2007 16:31:45 : Update this page