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Report Details


Committee Name:

Uniform Legislation and Statutes Review Committee

House:

Legislative Council
Report Type:Report

Title:

Criminal Investigation (Covert Powers) Bill 2011
Report No:69
No of Pages:106
Physical Location:Legislative Council Committee Office

Presentation Date:

03/06/2012
Inquiry Name(s):Criminal Investigation (Covert Powers) Bill 2011


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Hide details for Executive SummaryExecutive Summary

Executive Summary
1 The Criminal Investigation (Covert Powers) Bill 2011 proposes a uniform scheme of extraordinary law enforcement powers for Western Australia Police, the Department of Fisheries and the Australian Crime Commission. These powers will be used for both local and cross-border covert ‘controlled’ operations under the supervision of those agencies’ respective chief officers.
2 No qualitative external oversight of the agencies’ use of the powers and investigation into the conducting of their operations will occur. A gatekeeper is an essential tool for combatting the spectre of corruption around those who will exercise the extraordinary powers provided by the Bill.
3 The Committee is of the view that the power to conduct a controlled operation or assume an identity for the purpose of conducting a controlled operation should be used judiciously to deal with proportionately serious matters or matters where normal methods of law enforcement are, for particular reasons, ineffective.
4 The Committee has a particular concern that the creation of new offences in subsidiary legislation for which a controlled operation may subsequently be undertaken is an inappropriate delegation of legislative power from the Parliament to the Executive. The creation of new offences is a subject matter that should remain within the purview of the Parliament and to propose otherwise, diminishes the sovereignty of the Western Australian Parliament.
5 The Committee made four Findings, three narrative-form Recommendations and 25 statutory-form Recommendations.

Findings and Recommendations
6 Findings and Recommendations are grouped as they appear in the text at the page number indicated:
Page 8
    Finding 1: The Committee finds that a gatekeeper is an essential tool for combatting the spectre of corruption by those who will exercise the extraordinary powers provided by the Criminal Investigation (Covert Powers) Bill 2011.
Page 21
    Recommendation 1: The Committee recommends that in terms of the implementation of the policy decision to include “the fisheries department” in the definition of “law enforcement agency” in the Criminal Investigation (Covert Powers) Bill 2011, the Department of Fisheries should be excluded. This may be effected in the following manner:

    Page 3, lines 13 to 14 – To delete –

    or (c) the fisheries department;

Page 23
    Finding 2: The Committee finds that the powers conferred on the three prescribed law enforcement agencies and their respective chief officers are extraordinary. These powers should be confined to the most serious of crimes, not just for any offence.
Page 25
    Finding 3: The Committee finds that the controlled operations powers being proposed in the Criminal Investigation (Covert Powers) Bill 2011 should only be used judiciously to deal with proportionately serious matters or matters where normal methods of law enforcement are, for particular reasons, ineffective.
Page 26
    Finding 4: The Committee finds that the creation of new offences attracting controlled operations powers in regulations is a serious subject matter and constitutes an inappropriate delegation of legislative power from the Parliament to the Executive. No substantive scrutiny of the offences will occur. This diminishes the Parliament’s role in authorising appropriate offences for a controlled operation.
Page 27
    Recommendation 2: The Committee recommends that the definition of “relevant offence” in clause 5 of the Criminal Investigation (Covert Powers) Bill 2011 be amended to exclude the prescribing of additional relevant offences in regulations. This may be effected in the following manner:

    Page 6, lines 25 to 27 – to delete -

    or (b) an offence against the law of this jurisdiction that is prescribed for the purposes of this definition;

Page 29
    Recommendation 3: The Committee recommends that in the event recommendation 2 is not supported by the Legislative Council, clause 5 of the Criminal Investigation (Covert Powers) Bill 2011 be amended to provide for greater Parliamentary scrutiny of the prescribing of relevant offences in regulations where the punishment is less than three years imprisonment. This may be effected in the following manner:

Page 6, line 27 — To delete “definition;” and insert -

definition if and only if the prescribing of that offence has been recommended by resolution passed by both Houses of Parliament of this State;
Page 29
    Recommendation 4: The Committee recommends that the definition of “sexual offence” in clause 5 of the Criminal Investigation (Covert Powers) Bill 2011 be amended to exclude the prescribing of additional sexual offences in regulations. This may be effected in the following manner:

    Page 6, lines 30 to 32 – to delete -

    or (b) any other offence of a similar kind prescribed for the purposes of this definition;

Page 29
    Recommendation 5: The Committee recommends that in the event Recommendation 4 is not supported by the Legislative Council, clause 5 of the Criminal Investigation (Covert Powers) Bill 2011 be amended to provide for greater parliamentary scrutiny of the prescribing of additional sexual offences in regulations. This may be effected in the following manner:

Page 6, line 32 — To delete “definition;” and insert -

definition if and only if the prescribing of that offence has been recommended by resolution passed by both Houses of Parliament of this State;
Page 34
    Recommendation 6: The Committee recommends that clause 9 of the Criminal Investigation (Covert Powers) Bill 2011 be deleted. This may be effected in the following manner:

    Page 8, lines 10 to 15 – To delete the lines

Page 34
    Recommendation 7: The Committee recommends that if the Legislative Council does not support recommendation 6, clause 9 of the Criminal Investigation (Covert Powers) Bill 2011 be amended so that the Freedom of Information Act 1992 and the State Records Act 2000 do not apply to investigations, operations activities or records under Part 2 but to apply after a period of 30 years. This may be effected in the following manner:

    Page 8, line 12 – To delete “Part –” and insert -


Part for 30 years after the commencement of this section –
Page 35
    Recommendation 8: The Committee recommends that the Minister representing the Minister for Police respond to the Information Commissioner’s comments in a letter to the Committee reproduced at Appendix 5 that:

      (1) the use of different oversight models in different regulatory schemes increases the complexity and fragmentation of oversight laws resulting in inefficiencies and unnecessary duplication of effort and expenditure; and

      (2) the problem appears to have arisen inadvertently as a result of various Ministerial Councils each deciding on different oversight models for the areas of national law reform for which they are responsible.

Page 35
    Recommendation 9: The Committee recommends that clause 12(1)(f) of the Criminal Investigation (Covert Powers) Bill 2011 be amended to insert the word “been” between the words “have” and “expected” at Line 33. This may be effected in the following manner:

Page 10, line 33 — To insert after “have”-

been

Page 37
    Recommendation 10: The Committee recommends that the words: “as soon as practicable” and “record in writing” be inserted in clause 15(8) of the Criminal Investigation (Covert Powers) Bill 2011. This may be effected in the following manner:

Page 14, line 28 — To delete “must ensure that written notes are” and insert -

must, as soon as practicable after the authority is granted, ensure that a record in writing is
Page 39
    Recommendation 11: The Committee recommends that clause 25(2) of the Criminal Investigation (Covert Powers) Bill 2011 be amended to make it mandatory for the principal law enforcement officer to apply to the chief officer for a retrospective authority within 24 hours and in exceptional circumstances, outside the 24 hour period. This may be effected in the following manner:

Page 21, line 7 — After “hours” insert -

(or any longer period that the chief officer may, in exceptional circumstances, allow)
Page 41
    Recommendation 12: The Committee recommends that clause 25 of the Criminal Investigation (Covert Powers) Bill 2011 be deleted from the Bill. This may be effected in the following manner:

    Page 21, lines 1 to 31 – To delete the lines

    Page 22, lines 1 to 31 – To delete the lines

Page 42
    Recommendation 13: The Committee recommends that in the event Recommendation 12 is not supported by the Legislative Council, the terms of reference of the Joint Standing Committee on the Corruption and Crime Commission be extended to provide oversight of retrospective authorities.