Page 4172 - Week 11 - Thursday, 17 Sept 2009
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contemplates, but it is something we would wish to monitor. Part 6 of the bill overcomes this to some extent, providing for reporting, record keeping and inspection by the Ombudsman.
There are two primary advantages of this bill. They are to provide the legal basis for law enforcement agencies to carry out undercover operations and for cross-jurisdictional operations where the participating jurisdictions have corresponding laws.
The bill draws upon the model bill that was included in the Cross-border investigative powers for law enforcement report of November 2003 of the joint working group established by the Standing Committee of Attorneys-General and the Australasian Police Ministers Council. It also draws upon the conclusions of the ACT government’s report of June this year on serious organised crime.
An important matter to consider in relation to how this bill operates goes to whether an operation using an assumed identity results in entrapping a person to commit a criminal offence or improperly inducing a person to commit an offence. Such an action would deny the person the right to a fair trial under the Human Rights Act 2004. The same questions arose when the Assembly considered the Crimes (Controlled Operations) Act 2008. It was noted at that time, and it is noted in the explanatory memorandum, that the controlled operations act did not modify the law in relation to entrapment or improper police inducement. Nor does this bill seek to modify that law. This is covered in clause 6, which sets out the purpose of the bill as being:
… to facilitate, for law enforcement purposes, investigations and intelligence gathering in relation to criminal activity, including investigations extending beyond the ACT.
An officer of a law enforcement agency, being ACT Policing or the Australian Crime Commission—or someone else, who must be supervised by a law enforcement officer—can only acquire and/or use an assumed identity with the authorisation of the agency’s chief officer. The chief officer can delegate powers to a defined senior officer of the law enforcement agency. Only four delegations per agency can be in force at any one time.
This bill sets out the processes for application, decision, review and cancellation of assumed identity authorisations, including the kinds of fictitious documentation and other evidence that may be obtained. The Supreme Court, in closed session, is required to authorise fictitious entries, and cancellations thereof, in the register of births, deaths and marriages. For other forms of evidence of assumed identity, the chief officer can make requests of government agencies, which must comply, or non-government agencies, which may comply. It also provides criminal and civil immunity for authorised persons, provided they acquire and use the identities honestly and without recklessness.
An interesting element, articulated at clause 29, is that an authorised person must not engage in conduct that requires a qualification that the person does not hold, regardless of whether or not that person holds fictitious evidence of that qualification.
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