Page 4174 - Week 11 - Thursday, 17 Sept 2009
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given the high level of security that is needed. If these matters were subject to FOI, even the revealing of the existence of particular documents on an FOI schedule, even if the documents themselves would be exempt, could jeopardise the safety of law enforcement officers, and I am not prepared to countenance that. There was active discussion the other day about whether or not, if matters were subject to the FOI Act, FOI officers would deliberately lie about the existence of documents. I would never want to place officers in a situation where they felt that that was necessary.
I think it is appropriate, in these circumstances, that this act be exempt from the Freedom of Information Act. That does not mean that I am a wholesale advocate of exempting matters. It is not a sell-out; do not worry.
The second matter raised by the scrutiny of bills committee was whether it is appropriate that government and non-government agencies be granted immunity from criminal liability in relation to the creation of false information to support a false identity. The committee asks whether such an approach violates the rule of law in the sense that all are equal under the law and all are subject to the law. It questions whether there is a need for law enforcement officers to engage in illegal activities as part of investigations.
Whilst I have not yet seen the attorney’s response to the issues raised by the scrutiny of bills committee, I do not consider that these issues should prevent passage of the bill. Nevertheless, I acknowledge that they are worth the government’s consideration and clarification if the need arises.
I took the opportunity to consult with relevant stakeholders in the legal profession to seek their views. In the time available to us, which was only three weeks, only one organisation, Civil Liberties Australia, raised issues; it raised two issues. The first relates to the offence of disclosure of the identity of undercover operatives. The organisation believes the provisions in clause 37 are too broad, go beyond the intent of the bill and should be amended. The example given was where a partner in a criminal activity tells his accomplice that a third person involved in the activity is an undercover operative. The organisation suggests that this may expose the first person to a criminal offence carrying a 10-year penalty.
The Liberal opposition have considered this and we think that this is an issue that should be remarked upon here. We do not believe that someone who may be convicted of a low level crime should have such a substantial penalty imposed on top of the conviction for the original crime. But at this stage the Liberal opposition are not disposed to amend the legislation. I think this is something that needs to be monitored.
Civil Liberties Australia also raised with us the question whether this might have implications for the media and authors, even many years down the track, who might be exposed to a criminal offence by reporting on an assumed identity. But, on consideration—and I think Mr Hanson made this point to me this morning—often organised crime has a very long memory and there have been instances where, even if the undercover officer himself may be well out of the way, may even be deceased, retribution has been brought to bear on other people’s families. On balance, while sharing some concerns with Civil Liberties Australia, I think that overall we should be active for the safety of people involved in this very dangerous work.
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