Report on the impact on journalists of section 35P of the asio act

A related United Kingdom case

The House of Lords held that the provisions were consistent with article 10 of the ECHR. In this regard, the House of Lords considered it was significant that there were various avenues for making permitted disclosures and a capacity for disclosures to be authorised. Article 10 of the ECHR is not identical to article 19 of the ICCPR so the Shayler case is not directly relevant as a legal matter for present purposes, but it offers an insight into related issues.

The United Kingdom is also a party to the ICCPR. According to the Australian Law Reform Commission (ALRC)⁵⁶ (footnote omitted):

8.49 Section 1(1) of the Official Secrets Act has also been considered by the United Nations Human Rights Committee. While the Committee did not state that the provision itself was incompatible with art 19 of the ICCPR, it expressed concern about the way in which the provision was enforced. It noted that disclosures of information may be penalised under the Official Secrets Act 1989 even where they are not harmful to national security, and that powers under the Act have been ‘exercised to frustrate former employees of the Crown from bringing into the public domain issues of genuine public concern’. The Committee observed that:

The State party must ensure that its powers to protect information genuinely related to matters of national security are narrowly utilized and limited to instances where the release of such information would be harmful to national security.

Appendix K—The controlled operations precedent for the SIO scheme and section 35P

History of the controlled operations scheme

It is instructive to consider the history and purpose of the controlled operations scheme on which the SIO scheme is based.

Key aspects of the legislative history of the controlled operations scheme are:

• 
  the scheme was introduced by the Crimes Amendment (Controlled Operations) Act 1996 (No 28 of 1996) in response to the decision of the High Court in Ridgeway v R (1995) 184 CLR 19 and was initially limited to operations connected with the narcotic drug offences
  
• 
  the scheme was amended by the Measures to Combat Serious and Organised Crime Act 2001 (No 136 of 2001) to expand the operation of the scheme to apply to the investigation of a much wider range of serious Commonwealth offences and to expand the exemption from criminal liability to cover Commonwealth, State and Territory offences, and
  
• 
  the scheme was amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (No 3 of 2010) which implemented national model laws for controlled operations as part of a national response to organised crime (including sections 15HK and 15HL, on which section 35P of the ASIO Act was modelled).
  

A ‘controlled operation’ is an investigative method used by law enforcement agencies to identify suspects, obtain evidence and allow suspects to be prosecuted. It may be used to investigate a range of criminal offences such as murder, money laundering, forms of trafficking, smuggling, corruption and bribery. The aim of a controlled operation is often to gather evidence and intelligence against those who organise and finance crime, rather than merely focussing on couriers and intermediaries.

In a controlled operation, instead of seeking to terminate immediately a criminal scheme, law enforcement officers allow the scheme to unfold under controlled conditions. During the process of allowing the scheme to unfold, an informant, agent or undercover police officer may themselves need to commit offences (for example, they may need to possess or sell an illicit drug).

Although controlled operations have been used in law enforcement for many years, there was no legislation that comprehensively regulated their use in Australia until 1995. Up until that time, police operatives who became involved in criminal activities as part of an operation were in many circumstances liable to be charged with criminal offences, but relied on other police and prosecutors to refrain from charging and prosecuting them with offences arising from their work. When making this decision, the police or prosecutor ordinarily takes into account all of the circumstances surrounding the offences and weighs up the public interest in pursuing a prosecution.

Law enforcement agencies also relied on persuading the courts to allow the evidence gathered during the operation to be used in the trial against the accused person. However, this approach changed in 1995 following the High Court decision in Ridgeway v The Queen.

Ridgeway was arrested by the Australian Federal Police (AFP) with 203 grams of heroin in his possession and convicted in the South Australian District Court for possessing a prohibited import (heroin). The prosecution alleged that Ridgeway initiated a deal to import heroin into Australia and to purchase the drug when it arrived. The importation of the drug had been undertaken by a police informer with the assistance of the AFP and the Malaysian Police in a ‘controlled delivery’ arranged for the purpose of apprehending Ridgeway. Ridgeway appealed his conviction to the High Court of Australia, which allowed his appeal and granted a permanent stay of proceedings in his favour.

The High Court decided that the importation of the heroin by law enforcement officers was illegal and therefore the evidence of that importation should have been excluded from the trial on the grounds of public policy.

The Court explained that judges may decide to exclude evidence obtained during an illegal activity involving law enforcement officers. In deciding, the Court weighs up the public interest in discouraging unlawful conduct by law enforcement officers against the public interest in the conviction of wrongdoers. In this case, the Court took into account the nature and the degree of the law enforcement officers’ unlawful conduct and the fact that the unlawful importation of the drug by the police created an element of the offence charged against Ridgeway (possession of a prohibited import). The Court was also concerned that there was no official disapproval of the criminal activity undertaken by the officers.

In the particular circumstances of Ridgeway’s case, the Court decided that the public interest was better served by excluding the evidence obtained through the illegal importation of the heroin. The Court acknowledged that sometimes law enforcement officers need to engage in a range of activities, in some cases illegal, to uncover organised crime, and recommended that the problems relating to the conduct of controlled operations should be addressed by introducing regulating legislation.

The response to the Ridgeway decision

As a result of the Ridgeway decision, a number of Australian jurisdictions (South Australia in 1995, the Commonwealth in 1996, New South Wales in 1997, and Queensland in 2000) enacted legislation providing for controlled operations. These provisions set out a process for authorising illegal activities by law enforcement agencies.

…

Controlled operations—why legislate?

Controlled operations legislation has been in place in Australian jurisdictions for a number of years and the issues surrounding its use have been articulated and debated in government and parliamentary reviews, as well as royal commissions. These reviews, while recognising the dangers of authorising illegal activities, have concluded that a legislative approach is the best way of limiting and monitoring such law enforcement activity.

For example, the Wood Royal Commission into the NSW Police Service considered the use of covert operations in the Police Service and recommended the introduction of regulating legislation because it would introduce greater regularity and certainty into undercover operations and resolve concerns about the criminal and civil liability of officers and civilians assisting them.

Also, a major review of the Commonwealth controlled operations legislation was undertaken by the Parliamentary Joint Committee (PJC) on the National Crime Authority (NCA) in 1999.

At that time, the Commonwealth legislation authorising controlled operations applied only in relation to the investigation of offences involving the importation of narcotics. One of the tasks of the PJC inquiry was to consider whether the Commonwealth controlled operations provisions ought be extended to a greater range of Commonwealth offences. The PJC’s report, Street Legal, discusses the key issues in relation to controlled operations including the desirability of regulating such operations by legislation.

The PJC noted the advantages of a legislative approach in that it:

• 
  provides clear guidance as to what are acceptable and unacceptable activities; (This ensures that the public interest in convicting wrong doers is balanced against the need to ensure that those entrusted with law enforcement do not impeach the integrity of the system.)
  
• 
  provides protection for covert police officers so they can perform their duties in the knowledge that they will not be prosecuted for undertaking necessary, authorised activities;
  
• 
  lessens the risk that evidence might be judicially excluded;
  
• 
  imposes internal discipline on law enforcement agencies; and
  
• 
  provides a scheme of accountability that can be monitored and reviewed, and which makes the behaviour of law enforcement officers subject to independent scrutiny.
  

• 
  legalises crimes committed by law enforcement officers;
  
• 
  might lead to the commission of offences which, but for the activities of the law enforcement officers, might not have been committed; and
  
• 
  may be susceptible to “function creep”. In other words, the legislation may be introduced for a limited purpose with a particular justification. Over time it might then be progressively extended to cover a wider range of purposes without sufficient additional justification.