Page 4238 - Week 11 - Thursday, 17 Sept 2009
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audit of authorities made under the proposed act at least once every six months an authority is in effect and once every six months after an authority ends. A written report of the results of the audit must be kept by the law enforcement agency. ACT Policing and the Australian Crime Commission must also provide a yearly report to the minister on any decisions that make, or consider making, an assumed identity. A de-identified copy of that report is also proposed to be tabled in this Assembly.
The bill establishes independent oversight by the Ombudsman. The Ombudsman may inspect records made under the proposed act. If the Ombudsman inspects the records, then a report on the inspection must be prepared under the terms of the Annual Reports (Government Agencies) Act 2004. This report will also be de-identified to protect operatives, agencies, investigations and potential prosecutions. The Ombudsman’s authority in this bill works alongside the authority in the controlled operations act to enable the Ombudsman to examine the interplay of an authority to use an assumed identity with a controlled operation.
A small number of issues have been raised with the government about the bill. The scrutiny of bills report asked about clause 7 of the bill, which states that the Territory Records Act and the Freedom of Information Act would not apply to the proposed act. The government considers that the exclusion of these acts provides police and other operatives using an assumed identity with increased protection from disclosure. Disclosure prior to any trial of an offence is an occupational health and safety issue for police and can also jeopardises investigations.
The scrutiny of bills committee report notes that the exemption in section 37 of the Freedom of lnformation Act would apply. This is true. In every case involving an assumed identity that had not been aired at trial, the exemption would apply. However, the FOI process itself would run the risk of exposing an operation or identity.
It could be argued that the government adopt a blanket policy of not considering or examining any information for potential release in the case of a request that involves a controlled operation or assumed identity. This approach would raise administrative law issues as it would avoid consideration of each application on its merits.
Instead, the government prefers to be absolutely clear on the imperative to protect officers and investigations at the outset and exclude assumed identities from the application of these acts. Any disclosure at all of the use of an assumed identity that is not already public knowledge runs the risk of exposing a controlled operation and hence rendering the operation useless.
The worst-case scenario, of course, is that a police officer’s identity is inadvertently exposed, placing that officer at risk as well putting at risk the safety of any people the officer may have formed relationships with while undercover. The government certainly supports accountability of the actions of the executive arm of government. However, in this case the Freedom of Information Act and the Territories Records Act are not appropriate forms of accountability for the reasons I have mentioned.
The bill also contains its own record-keeping requirements and its own accountability measures via the Ombudsman. The scrutiny of bills committee also asked me to
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