This speech was delivered on 20 February 2012 in the NSW Upper House. You can read the full debate online here.

Mr DAVID SHOEBRIDGE [4.10 p.m.]: On behalf of The Greens I refer to the Law Enforcement (Controlled Operations) Amendment Bill 2013. As earlier speakers have indicated, this bill effectively does two things: first, it amends the Law Enforcement (Controlled Operations) Act to allow for seconded officers of certain nominated authorities to operate in a controlled operation and, second, it amends the Surveillance Devices Act to allow civilians to carry listening devices in the course of a controlled operation. The bill creates new definitions of a “primary law enforcement officer” and a “secondary law enforcement officer”. Schedule 1 [3] to the bill requires an application for authority to conduct a controlled operation to nominate a principal law enforcement officer and a secondary law enforcement officer for the proposed operation. Schedule 1 [7] creates a new section 13 (b), which defines the functions of a secondary law enforcement officer was being one who can exercise the primary officer’s functions when that officer is not available to exercise the function.

Essentially, there is a back-up person who can exercise the functions of the primary officer in a controlled operation if the primary officer is unavailable through illness or misadventure or, I would imagine—and I ask the Minister to clarify this—operationally unavailable doing other duties. This matter was considered in the Ministry of Police and Emergency Services review of the Law Enforcement (Controlled Operations) Act 1997, which handed down its report in August 2011. In fact, both of the substantive amendments in the bill come about as a result of the report of that review, which was tabled in August 2011. According to that report both of these changes are required for the smoother administrative operation of controlled operations. As I said, as the primary officer may be unavailable or otherwise engaged, rather than having to get a separate warrant to have another officer use a listening device, which apparently has been routinely approved, a secondary officer can be nominated in the original controlled operations order.

The changes to the Listening Devices Act are also said to be for the smoother, easier operation of the legislation. Without the amendment the police, the Police Integrity Commission, the Ombudsman or the Independent Commission Against Corruption would have to apply for an individual listening device warrant to have a civilian or authorised officer from another organisation involved carry a bug during a controlled operation. That second aspect raises some concerns for The Greens as to the extent to which civilians will be roped into controlled operations. I ask the Minister to clarify in his speech in reply what checks and balances there are to ensure that unlimited civilians do not use listening devices in controlled operations. In particular, do the civilians have to be nominated in the application for controlled operations? Do the individual civilians have to be considered by the commissioner or delegate who signs off on the controlled operations order?

In relation to controlled operations generally The Greens primary concern is the lack of public scrutiny of controlled operations orders. I think from memory this was a concern of the current Minister for Police and Emergency Services when he was an Opposition member—the lack of public reporting, delays in reporting and a lack of particulars on the public record when, particularly, the Police Force undertakes controlled operations. In the December 2012 report by the Ombudsman—who has an obligation under the Act to provide annual reports—the Ombudsman was extremely critical of the lack of response and compliance of police in relation to reporting obligations under the existing legal structure. On page 11 of the report the Ombudsman said:

        Section 23(2) of the Act requires that this report include certain particulars in relation to each law enforcement agency. Specific data relating to the operations conducted by NSW Police Force is included in tables annexed to this report. The records maintained by NSW Police Force and inspected by us disclose the following information:

 

        · 279 authorities were granted by the Commissioner’s delegates during the 2011/2012 reporting period, nine of which were cross border operations.· Of these 95 were varied, 24 of those were varied on more than one occasions.· No applications were refused.

If not a single application for a controlled operation is refused one wonders what kind of internal checks and balances the police have. Part of the problem with the Ombudsman’s report is there is no quality control by the Ombudsman or assessment by the Ombudsman as to the merits of any one of the applications. That is because of the limited particulars that need to be supplied about a controlled operation under the regulations and it is an obvious defect in the oversight of this system. It is not, however, a defect that is made appreciably worse by the amendments before the House. The Ombudsman also noted that two urgent authorities were granted in that financial year and several applications were granted but apparently were not proceeded with.

It is very clear that the overwhelming majority of controlled operations were targeted at illegal drug supply. The records on police controlled operations procedures revealed: 220 were in relation to the supply of prohibited drugs, 55 were for firearm offences, three were for robbery offences, six were for property offences, five were for murder or conspiracy to murder, four were for fraud offences and three were for money laundering. Those figures show the extent to which covert surveillance is skewed towards trying to uncover the supply of prohibited drugs. It is a timely reminder of the extraordinary public resources we spend on the ever-increasing war on drugs. It is also a timely reminder for all of us that we should be looking at far more creative and sensible approaches to the difficulties of illegal drugs and the damage that they cause in our community. A very substantial number of police operate in respect of each of those 279 authorities. The Ombudsman’s report showed that the operations in total authorised 8,865 law enforcement participants and 187 civilian participants. The number of law enforcement people involved in individual operations ranged from one to as many as 156, while the number of civilian participants authorised for individual operations ranged from one to two.

I will deal with the practical issue about having civilian participants having to get a warrant under the Surveillance Devices Act. It is not such a substantial issue as was made out in the 2011 report, because in the whole of the financial year 2011-12 only 187 civilians participated in police controlled operations activities. Not all of those activities would have required a listening device. So a very modest issue is being addressed in the second part of this Act.

The Ombudsman noted that where large numbers of law enforcement participants are authorised in operations those operations generally target a specified geographical area—usually a local area command. In relation to the 168 operations which were completed by 30 June 2012 and reported to the chief executive officer, there were 229 law enforcement participants and 94 participants who actually engaged in controlled activities. Of the controlled operations reported on, the majority were investigations relating to drug offences. The controlled activities engaged in for those controlled operations were generally conversations and negotiations and the purchase of prohibited drugs. The vast majority of controlled operations are about covert surveillance and listening devices that seek to capture conversations about the supply of illegal drugs, and that is fundamentally what the Act is used for.

The Ombudsman was deeply critical when he inspected some of the records held by police. He noted that the controlled operations records of the Police Force were held by the Court and Legal Services Covert Applications Unit. He found that while the records were generally in order and in compliance with the requirements of the Act, apart from some typographical errors, there were some substantial exceptions. He noted in his 2010-11 annual report that there was a problem with principal law enforcement officers not ensuring that relevant undertakings were signed by civilian participants in controlled operations prior to the operation proceeding. That is a substantial concern given that these civilian participants may now also be having listening devices. The Ombudsman’s inspectors also found that there were still 21 instances where civilian undertakings were not on file.

In the 2010-11 year the Ombudsman had also reported on 144 operations inspected for which the reports on the conduct of the inspection had not been provided to the commissioner’s delegate within the statutory two-month time frame, A recommendation was also made that the Commissioner of Police take reasonable steps to ensure the timely report of those reports be made to the commissioner or his delegate. In the 2011-12 inspections there were still some 56 instances where reports had not been provided to the commissioner’s delegate within the required time frame. In the words of the Ombudsman:

        We are of the view that this ongoing noncompliance and breach of the legislation must be remedied as a matter of priority.

The Ombudsman recommended that the Commissioner of Police take immediate steps to ensure that reports on the conduct of a controlled operation are provided to the commissioner’s delegate within the statutory time frame. I ask that the Minister respond as to what he has done about checking with the Commissioner of Police that the statutory time frame within which reports are required after the conclusion of a controlled operation is complied with and that the commissioner or his delegate are getting the final signed-off reports consistent with the existing legal framework. I also ask that the Minister respond as to what checks he has made of the Commissioner of Police to see whether the commissioner has complied with the second part of the Ombudsman’s first recommendation—namely, implementing a system to monitor compliance with time frame requirements and ensure early identification of noncompliance in a timely fashion and taking appropriate action where there has been noncompliance.

The Greens do not oppose the bill but we do have some reservations about the extent to which civilians will be able to carry listening devices. I would appreciate it if the Minister would read onto the record whether or not if the individual citizens are not officers of the Police Integrity Commission or police or otherwise if they have to be specifically nominated in an application for a controlled operation and considered by the commissioner or his delegate who is approving the controlled operation, or if citizens can simply be roped in as it becomes convenient to the relevant authority in the course of a controlled operation. Clearly, if there is a more limited subset of citizens, those who may already be cooperating with a police or Independent Commission Against Corruption operation, and consideration is given to name and approve of those individuals in the application, it is quite different from having an open slate in which non-law enforcement officers can find themselves wired up with listening devices without getting a warrant from the Supreme Court. It is with those genuine and real concerns about the oversight of this Act and about the potential for a broad class of civilians to be wired up without the requirement of a warrant that The Greens make a contribution on this bill. We await the Minister’s clarification in his speech in reply.