Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I table the explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

CRIMES LEGISLATION AMENDMENT (NATIONAL INVESTIGATIVE POWERS AND WITNESS PROTECTION) BILL 2006

The Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 makes changes to law enforcement investigative powers and laws for the protection of witnesses.

Schedule 1 of the proposed amendments fulfils the government’s election commitment to introduce national model legislation on assumed identities, controlled operations and the protection of witness identity.

In order to investigate crime, police must be given effective powers. Contemporary policing requires law enforcement agencies to undertake covert investigations that extend beyond the boundaries of any one jurisdiction. To address this threat it is critical that law enforcement agencies adopt a nationally coordinated and cooperative approach to law enforcement.

In recognition of the problems that law enforcement agencies face in investigating criminal activity that crosses state and territory borders, on 5 April 2002 the Prime Minister and state and territory leaders agreed on a number of reforms to enhance arrangements for dealing with multi-jurisdictional crimes. In particular, they agreed to introduce model laws for a national set of powers for cross-border investigations covering controlled operations, assumed identities, electronic surveillance devices and the protection of witness identity. The government introduced the model legislation on electronic surveillance devices in 2004.

Currently, the law in each of these areas differs significantly between jurisdictions and there is no provision for recognition in one jurisdiction of authorisations or warrants issued in another jurisdiction. Where an investigation crosses state or territory borders, the need to obtain separate authorities in each jurisdiction can result in delays, loss of evidence and other impediments to effective investigation. There was a need to create a national set of investigative powers to facilitate seamless law enforcement across jurisdictions.

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.

Each state and territory will enact these model laws. New South Wales, Victoria, Queensland and most recently Tasmania have implemented the model laws. The proposed amendments to the Crimes Act will bring the Commonwealth into line with the agreed national model.

The Commonwealth amendments differ from the national model in a number of minor respects. The Commonwealth provisions will extend the legislative scheme beyond law enforcement officers to include security and intelligence officers, such as agents of the Australian Security Intelligence Organisation, and foreign law enforcement officers. This departure from the model is necessary because the Commonwealth’s role in national security and intelligence operations and in the investigation of crimes with a foreign aspect is different from that of the states and territories.

The Commonwealth will also not enact some of the mutual recognition provisions that appear in the model laws. That is because Commonwealth law enforcement agencies do not require authorisation to conduct operations across Australian state and territory borders. Commonwealth agencies have the power to operate freely throughout Australia.

The bill inserts a new part 1ACA into the Crimes Act. The part will create a mechanism to protect the identity of a covert operative who gives evidence in court proceedings. For example, an officer with the Australian Crime Commission may have been part of an “undercover operation”. In order to ensure that this operative, or their family, are not placed at risk, it is necessary to protect the operative’s true identity when the operative is called to give evidence in court. The provisions will ensure that an undercover operative can present their evidence under an assumed name but will ensure that the courts retain the ultimate power to control their proceedings.

Delayed Notification Search Warrants

Schedule 2 of the bill will introduce a delayed notification search warrants scheme. This will enable police officers to get search warrants that will allow the covert entry and search of premises to prevent or investigate Commonwealth terrorism offences and a limited range of other serious Commonwealth offences, in cases where keeping the existence of an investigation confidential could be critical to its success.

The scheme will add a covert investigative tool to the suite of tools police can use to investigate terrorism and other serious criminal offences. The warrants will allow the examination of physical evidence, such as a suspect’s computer, diaries and correspondence, so that police can identify associates and obtain evidence.

It will be a feature of the new scheme that police will have to give notice of the search without tipping off the suspected offenders that their activities are under investigation to the occupier of premises when operational sensitivities allow.

The bill imposes a range of strong accountability measures and record keeping requirements. For example, requests for warrants are subject to scrutiny by a judge or Administrative Appeals Tribunal member before a warrant can be issued. Executing officers must provide detailed reports to the chief officer of the law enforcement agency using the warrant. The chief officer must report annually to the minister. These reports will be tabled in each house of the parliament.

The bill also gives the Ombudsman the responsibility for ensuring compliance with the legislation by law enforcement agencies.

This new scheme will greatly increase the capacity of Australian law enforcement officers to investigate serious offences, including terrorism, while maintaining the appropriate respect for the privacy of all Australians.

Witness Protection Act amendments

Schedule 3 makes amendments to the Witness Protection Act 1994. The act provides a legislative basis for the provision of protection and assistance to witnesses who have given, or who are to give, evidence in criminal proceedings. It includes provision for the creation of new identities where that is an appropriate way of protecting a witness or their family.

The main aim of the Witness Protection Act is to enable witnesses to give evidence without fear of retribution, and without fear of endangering the safety of themselves or their families.

The proposed amendments to the Witness Protection Act will respond to issues which have arisen in the operation of the National Witness Protection program and will increase the overall effectiveness of the program. The amendments expand the program so that the AFP can provide protection and assistance to former participants in the program and members of their families, and to witnesses in state or territory matters where this is necessary to protect them.

Australian Crime Commission Act amendments and data access provisions

The bill also makes amendments to the Australian Crime Commission Act 2002. The amendments are largely technical in nature and address some operational difficulties experienced by the Australian Crime Commission.

The amendments will improve the function of the ACC by expanding the powers of examiners, aligning the current search warrant provisions with the Crimes Act model and correcting some technical errors in the legislation.

The bill also makes amendments to the search warrant provisions in the Crimes Act, Proceeds of Crimes Act 2002, Mutual Assistance in Criminal Matter Act 1987 and Customs Act 1901 to allow law enforcement officers to access data from electronic equipment once it is seized.

Conclusion

In order to investigate crime, police must be given effective powers. However, it is important that these powers are balanced to ensure that the rights of the individual are protected. The bill strikes that balance.

I commend this bill.

Ordered that further consideration of this bill be adjourned to the first day of the next period of sittings, in accordance with standing order 111.