Page 3097 - Week 08 - Thursday, 7 August 2008
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media reporting, it seems that the AFP was aware of this reasoning and did not object to it. It would be interesting to ask ACT Policing whether its leaders now consider that cocaine use causes serious harm or indeed any health danger to users.
The government argues that the higher standard in our legislation would be workable, by drawing a distinction between the decision to authorise the controlled operation and the actual conduct of an operation where things could be far more likely to go pear shaped. It remains to be seen whether this distinction can be maintained in practice. Certainly, it is difficult to imagine a credible argument that operations involving the supply of drugs or guns to criminal gangs might not involve a foreseeable risk of harm.
In New South Wales, under section 21 of the Law Enforcement (Controlled Operations) Act 1997, the police must inform the Ombudsman within 21 days of granting an authority or of receiving a report on the conduct of an authorised operation. The ACT is relying on the Ombudsman to ensure that these controlled operations do not get out of hand, but this reliance is misplaced.
For a start, under our legislation, there is no obligation on ACT Policing similar to that in New South Wales to inform the Ombudsman within set time periods about controlled operations. Second, the Ombudsman has a practice of not inquiring into any operation that is currently underway. Third, the Ombudsman can only look at existing ACT Policing files. Fourth, it is highly unlikely that corrupt police officers are going to create and leave incriminating evidence lying around in police filing cabinets. Fifth, even if the Ombudsman does suspect corruption, he has ineffectual powers to undertake his own investigations. Sixth, the legislation only provides that the Ombudsman must make a report, prepared under the Annual Reports Act, once a year on his inspections regarding controlled operations. This is hardly the level of oversight that these serious new powers demand.
The only body which oversees our police force and which has any independence or power to undertake effective investigation is the Australian Commission for Law Enforcement Integrity, or ACLEI, which is tasked with oversighting all federal law enforcement agencies. As far as I am aware, the ACT has no formal input and probably no influence whatsoever on the operations and agenda of ACLEI. ACLEI already does not have anywhere near enough resources to adequately fulfil its wide-ranging responsibilities.
The former heard of ACLEI said the body needed a 10-fold increase in investigation staff and substantial extra funding to be effective. Given this state of affairs, it is hard to imagine that the operations of the ACT Policing branch of the AFP would attract much attention. I am yet to hear the Attorney-General adequately justify his faith in ACLEI to oversight ACT Policing and the Australian Crime Commission. At the SCAG meetings that oversaw the drafting of these laws, he should have insisted that oversight of ACT Policing received a dedicated share of ACLEI’s budget and that the ACT government have a statutory role in the functions of ACLEI.
Christopher Pyne, the shadow minister for justice and border protection, has said, “The 2008 budget shows that ACLEI’s activities are being crippled by underfunding.
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