Page 3101 - Week 08 - Thursday, 7 August 2008
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prosecution for offences committed in the course of undercover operations. This bill gives officers greater certainty with regard to their legal position, and I think that this aspect of the proposal is most welcome.
I will say for the record that I have some serious reservations about this bill, and I will be watching carefully to make sure that any special powers granted to police are used in a fair manner, to the extent one can from where we sit. I think we need to tread very carefully in the authorisation provisions and in deciding what level of detail and disclosure are required in order for an officer to be authorised to perform illegal acts in the course of a controlled operation.
On the one hand, undercover officers in controlled criminal operations need some flexibility and spontaneity in dealing with criminal elements. However, on the other hand, we also need to make sure that this system does not simply give carte blanche powers to officers. I will be supporting this bill, although, as I have said, I have some reservations about the powers it grants, and I will be watching carefully to make sure that the power is used appropriately. I will conclude on that note, Mr Speaker, and leave it at that.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services) (6.19), in reply: In closing the debate, I would like to sum up the three key elements of this bill and address some concerns raised by Dr Foskey about it.
The bill has three components to it: a framework for deciding to authorise a controlled operation; provisions that authorise unlawful conduct in limited circumstances; and a comprehensive set of provisions for reporting and accountability. The first component of the bill is that it creates a clear and accountable framework for deciding whether a controlled operation is warranted and whether the proposed operation meets the grounds for managing an operation set out in the bill.
A controlled operation can only be authorised if the offences involved carry a penalty of three years imprisonment or more; if the nature of the criminal activity warrants a controlled operation; if any unlawful conduct by those authorised to engage in the controlled operation is kept to a minimum necessary; if the operation will not result in greater distribution of illicit material than necessary; and if the operation can be accounted for under reporting requirements set out in the bill.
The chief officer deciding on the proposed controlled operation may also set any conditions on the conduct of the operation. If authorisation is given, the authorisation must be set out in a written form as prescribed by the bill. The written authority for the operation includes identifying each person authorised to engage in controlled conduct and articulating the nature of the conduct authorised for the operation.
The second component of the bill is the lawful authority to engage in unlawful conduct within the boundaries of the decision to authorise a controlled operation. Protection from criminal or civil liability only applies if the conduct falls within the authority provided for the operation; if the conduct does not amount to inducing a person to commit an offence; and if the conduct does not involve the risk of causing death or serious injury, or the commission of offences against the person of a sexual nature. For any participants who are not law enforcement officers, the protection is
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