Legislative Assembly for the ACT: 2008 Week 7 Hansard (3 July) . . Page.. 2664..
MR CORBELL (continuing):
Emergency Services and a copy of the report presented to the Assembly. All operations authorised in the ACT must be documented, and a register of these operations must also be kept.
My department has confirmed with the Ombudsman's office that, should this bill be passed, the Ombudsman will inspect records related to controlled operations to ensure compliance with the foreshadowed act. Every year the Ombudsman must also provide a written report of the inspections under the Annual Reports (Government Agencies) Act 2004.
In order to protect police and other people authorised to engage in a controlled operation, the bill does not change the unlawful character of the conduct but excludes authorised people from criminal liability. If the authority is abused or disregarded, then that protection is negated. The bill also puts beyond doubt that a court should not apply its discretion to exclude evidence obtained during a controlled operation solely because it was obtained through the commission of unlawful acts, provided that the conduct was within the scope of the authority.
However, the bill does not modify the law that would prevent a defendant from being convicted on the basis of acts committed as a result of entrapment or improper police inducement. It is intended that in any prosecution involving evidence obtained by the powers exercised under the bill, where it is alleged that the evidence is the result of inducement or entrapment, the court retains its discretion to receive and exclude evidence or to stay proceedings, consistent with the right to fair trial.
The bill also allows other controlled operations law, whether under common law or statute, to operate in parallel to the law set out in this bill. For example, part 6A of the Tobacco Act 1927 authorises a procedure to obtain evidence that could be characterised as a controlled operation. Likewise, an ACT Policing operation that is a controlled operation governed by common law is not intended to be ousted by the enactment of this bill.
This bill is part of a national project to develop model laws that aid criminal investigation across state and territory borders. The task of developing the model laws was given to a national joint working group established by the Standing Committee of Attorneys-General and the Australasian Police Ministers Council. The joint working group was chaired by the commonwealth and included representatives of police and justice agencies from each jurisdiction.
Enacting this nationally recognised law will enable the ACT to work with other police forces and justice agencies to dismantle organised crime. I commend the bill to the Assembly.
Debate (on motion by Mr Stefaniak ) adjourned to the next sitting.
Justice and Community Safety Legislation Amendment Bill 2008 (No 2)
Mr Corbell, pursuant to notice, presented the bill, its explanatory statement and a Human Rights Act compatibility statement.