That the bill be now read a second time.

The Criminal Investigation (Covert Powers) Bill 2011 is part of a national project to develop model laws that aid

criminal investigation across state and territory borders. 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 then

Australasian Police Ministers’ Council. The joint working group was chaired by the commonwealth and included

representatives of police and justice agencies from each jurisdiction.

The objective of the model laws is to enable seamless cross-border investigation of serious offences. Under these

model laws, officers in this state will be able to continue their investigations in another state or territory under an

authorisation issued in this state, instead of having to seek a fresh authorisation in each new jurisdiction they

enter. Organised criminal networks, such as drug cartels and motorcycle gangs, operate with relative ease across

jurisdictional borders. The bill addresses this emerging threat. The three areas of law enforcement contained in

this bill—controlled operations, assumed identities and witness identity protection—are all inter-related and tend

to be used in combination to investigate and prosecute serious crime. Additionally, these three areas all relate to

covert methods of investigation.

At the same time, police in this state have been hampered by a lack of broad statutory covert powers and

presently rely on a patchwork of restrictive provisions in the Corruption and Crime Commission Act 2003,

Prostitution Act 2000 and Misuse of Drugs Act 1981 to conduct controlled operations; administrative

arrangements to authorise assumed identities; and the common law to regulate the protection of a law

enforcement operative’s identity in court. The bill remedies this situation by repealing the undercover provisions

in the Misuse of Drugs Act 1981 and Prostitution Act 2000 and by adopting the model laws’ minimum standards

for these three areas of law enforcement for use within this state, but with several significant modifications to

provide our police with the necessary tools and flexibility to disrupt and frustrate contemporary organised crime

groups. These modifications to the local controlled operations scheme in no way jeopardise the objective of the

model laws because the model laws are binding only in respect of cross-border controlled operations.

It is worth noting that WA Police will be the main users of the legislation. However, the bill is drafted so that the

Department of Fisheries and the Australian Crime Commission can utilise its provisions. The fisheries

department has been included in the scheme as it has a team of specialist investigators who conduct controlled

operations into offences occurring in high-value, high-risk fisheries and target serious and organised criminal

networks. The Australian Crime Commission generally investigates commonwealth or state offences that have a

federal aspect. The commission is also authorised to investigate state offences without a federal aspect, and

consequently may utilise the powers in this bill. A similar approach has been taken in most other jurisdictions.

Before I turn to the detail of the bill, I will briefly explain what each of these three areas deal with. A “controlled

operation” is an undercover operation that authorises an undercover law enforcement officer to engage in

unlawful conduct under controlled conditions to investigate serious offences. An “assumed identity” is a false

identity that protects an undercover operative engaged in investigating crimes and infiltrating organised crime

groups. “Witness identity protection” provides for the protection of the true identity of a covert operative and of

other protected witnesses who give evidence in court.

Controlled operations authorisation process: The bill sets out a rigorous process for authorising controlled

operations. In the case of police, a controlled operation may be authorised only by a senior officer of or above

the rank of commander. In accordance with the model laws, a controlled operation may be undertaken only for

criminal offences that attract a penalty of a minimum of three years’ imprisonment or for a lesser offence that is

prescribed in regulations. The senior officer must be satisfied in regard to a number of key controls and

safeguards. They include that any unlawful conduct will be limited to the maximum extent possible, that the

operative has the appropriate skills and training and that any conduct will not seriously endanger health, cause

the death of any person or involve the commission of a sexual offence.

The bill proposes that a retrospective authority be available only when a controlled operation is conducted solely

within Western Australia. Organised crime groups are known to test people in the belief that they may be

undercover operatives and so incite them to commit offences. Any refusal may put officers’ lives at risk. A

power to seek a retrospective authority, which covers unlawful activity not included in the original authority,

will enable undercover operatives to maintain their cover and to not react inappropriately by refusing to commit

an act outside their authority. There are strict conditions under which a retrospective authority may be granted.

For example, the authorising officer must be satisfied that the operative had not foreseen, and could not

reasonably be expected to have foreseen, that the circumstances would arise. Retrospective authority cannot be

granted for any conduct that seriously endangers health, causes the death of a person or involves the commission

of a sexual offence.

Conduct of controlled operation: The authority of the senior officer sets clear parameters for the conduct of and

the limited protection from criminal responsibility for each operative in a controlled operation. For example,

there is no protection from criminal responsibility if the operative induces a person to commit an offence they

would not have otherwise been likely to commit. The protection of operatives against personal liability for civil

claims arising from their conduct is provided in section 137 of the Police Act 1892.

The bill also provides that an innocent third party who suffers loss of or damage to their property as a direct

result of an authorised operation has recourse to compensation. The provision is limited to cases in which the

loss or damage did not occur as a direct result of the claimant engaging in any criminal activity, and innocent

third parties will be notified of their right to compensation.

As I said previously, the bill is part of a national scheme for investigations that may need to be undertaken in

more than one jurisdiction. Clause 34 of the bill provides for the mutual recognition of the corresponding

provisions of the controlled operations laws of another jurisdiction. This means an authority for a controlled

operation issued in another interstate jurisdiction will have the same effect and give the same protections in this

state as would a locally issued authority. Likewise, other participating jurisdictions will extend the same

protections to Western Australian police whose covert investigations cross their borders.

Compliance and monitoring of controlled operations: The bill requires the relevant law enforcement agencies to

keep adequate records of all controlled operations, including a general register that includes summary details for

each application made, each authority granted and each variation to an authority. The bill also requires law

enforcement agencies to report on the nature and outcomes of controlled operations. Each authority names the

law enforcement officer who is responsible for the conduct of the operation. This officer is required to report to

the chief officer in detail on the outcome of the operation within two months of its completion. The chief officer

must report every six months to the Western Australian Ombudsman on, among other things, the number of

authorities refused, granted, varied or cancelled, and on any arrests or prosecutions arising from an authorised

operation.

The bill creates an oversight role for the Western Australian Ombudsman, who will inspect the records of the

law enforcement agency at least once every 12 months and report to the Parliament on the work and activities of

each agency and the extent to which controlled operations conducted in the previous 12 months complied with

the legislation. The Ombudsman will also be notified as soon as practicable and in any case within seven days in

the event of a retrospective authority being granted.

Assumed identities: Assumed identities provide vital protection for undercover operatives engaged in infiltrating

organised crime groups. Undercover operatives must be able to obtain and use proper identification documents—

that is, a driver’s licence, passport and credit card—to enable them to maintain their assumed identity. Without a

credible and verifiable identity, the safety of undercover operatives can be jeopardised.

This bill provides a scheme for the acquisition of evidence to support false identities, and their use, for law

enforcement purposes. Western Australia—like Tasmania and Victoria prior to adopting the model laws—

currently has no assumed identity legislation. Western Australia Police and the Department of Fisheries presently

obtain authorisation to use an assumed identity by way of administrative arrangement with the chief officer of

the respective agencies. The acquisition of evidence to support a fictitious identity is done by way of an exercise

of goodwill with the issuing agencies. The proposed legislation will introduce a comprehensive regulatory

scheme with provision for regular review of each formal assumed identity to determine whether it is still

necessary, six-monthly auditing of current assumed identities and a requirement to provide an annual report to

the relevant minister.

The bill provides for a formal application process to ensure assumed identities are granted only in appropriate

circumstances. A law enforcement officer must apply to the chief officer of the agency for authority to acquire

and use an assumed identity. The application must contain detail on the reasons for the need to acquire or use the

assumed identity, the types of evidence of identity required and which agencies will be requested to issue this

evidence. To ensure that an authority is granted only when appropriate, the chief officer must be satisfied that the

assumed identity is necessary for the purposes of investigation or intelligence gathering in relation to criminal

activity, and for the training of persons for this purpose or any administrative function in support of either of

these purposes. The chief officer must also be satisfied that the risk of abuse of the assumed identity is minimal.

The bill will enable government issuing agencies, such as Medicare and the Department of Transport, and nongovernment

issuing agencies, such as banks and financial institutions, to lawfully create fictitious documentation

and other evidence to support an assumed identity. Agencies and their staff assisting in the creation of

documentation to support an assumed identity will be protected from any criminal or civil liability. Birth and

marriage certificates are a basic source for the creation of false identities and it is essential that the creation of

such documents be strictly controlled. An entry will be made in the Registry of Births, Deaths and Marriages

only if authorised by a Supreme Court judge, and entries must be cancelled by the same means.

In the course of acquiring and using an assumed identity, law enforcement officers and other authorised

persons—that is, civilians—may commit minor offences such as making a false statement or giving a false name

or address. The bill offers protection from criminal and civil liability for authorised persons for these types of

minor offences.

The model laws provided for “point forward” creation of an assumed identity, but did not provide for a

“historical record” to be made in a register regarding an assumed identity. For example, a motor driver’s licence

is created for a 35-year-old operative and the record made to appear as though the licence was obtained when the

operative was 17 years old. Research indicates that organised crime syndicates often have extensive networks

and corrupt connections in government departments that enable them to check the assumed identity and

background of persons suspected of being undercover operatives. A watertight long-term history similar to a

person’s true identity is necessary to ensure minimal threat to the safety of the operative, whilst also minimising

financial losses that occur when operations are compromised.

A key feature of this part of the bill is mutual recognition. The bill enables an assumed identity issued in a

participating state or territory to be recognised as valid for use in Western Australia. Similarly, an assumed

identity authority issued in this state will be recognised as valid and effective in any other participating

jurisdiction.

The bill creates an offence for the misuse of an assumed identity, punishable by a maximum penalty of two

years’ imprisonment. In addition, a disclosure offence is included in the bill. This aims to ensure that the safety

of undercover operatives using assumed identities is not compromised by disclosures that may reveal the fact

that an assumed identity is not a person’s real identity. The offence is punishable by a maximum penalty of 10

years’ imprisonment.

The bill requires record keeping and regular auditing of assumed identity authorities. Law enforcement agencies

must keep detailed records relating to all assumed identity authorities granted, varied or cancelled. These records

are audited every six months while the authority is in force and at least once in the six months after cancellation

of the authority. The results of an audit are to be reported to the relevant chief officer. The bill imposes an

additional level of accountability and oversight by requiring the chief officer to submit an annual report to the

relevant minister. This report must include information on whether any fraud or other unlawful activity was

identified by an audit, as well as any other information that the relevant minister considers appropriate.

Witness identity protection: Like controlled operations and assumed identities, witness identity protection is part

of the model laws. A legislative scheme will fit hand in glove with controlled operations and the use of assumed

identities, as witnesses, covert operatives and participants will be able to give evidence with the confidence of

knowing their true identity will be protected. Unfortunately, there will be cases in which a witness may be

intimidated or have their personal safety threatened as a consequence of giving evidence in legal proceedings. A

legislative scheme for the protection of a witness’s identity will ensure that they are more prepared to come

forward and testify if they can be assured that their true identity can be protected.

Currently, covert operatives rely on the doctrine of public interest immunity—that is, the discretion of the

judiciary to allow them to give evidence without revealing their real name. However, when a matter is left to

judicial discretion, the potential witness is left uncertain whether the court will exercise the discretion in their

favour and therefore afford them protection. The bill will serve a number of public interests; it will not only

protect the witness, but also provide a law enforcement agency the ability to allow an undercover officer to

continue to operate long after he or she has given evidence in a particular case. Protecting an undercover

operative’s true identity will encourage police officers and others to participate in the often dangerous

environment of undercover operations. The witness protection provisions also extend to providing certainty for

civilian witnesses when giving evidence in court.

The bill introduces a statutory scheme under which operatives in controlled operations or those using an assumed

identity in law enforcement operations will be afforded the protection of a witness identity protection certificate

when giving evidence in court. The relevant chief officer will be able to issue a certificate when he or she is

satisfied that the disclosure of the witness’s true identity may endanger the safety of the operative or someone

else; or may prejudice an investigation. The chief officer must ensure that the certificate records information

relevant to the credibility of the evidence given by the operative. This is important as it ensures the accused’s

right to a fair trial, whilst being able to challenge the credibility of the witness, without disclosing the witness’s

true identity.

Information on the certificate will include a variety of information such as the operative’s prior convictions and

outstanding charges, but the certificate must not contain any information that will allow the operative’s true

identity to be revealed. A certificate must be filed with the relevant court prior to the operative giving evidence

and all proceedings involving an operative who has been issued a certificate must be held in a closed court. The

certificate allows the operative to give evidence in an assumed or court name and requires that an operative not

be asked questions or be required to answer questions or make statements that may lead to the disclosure of their

true identity or where they live. The bill provides that a party to the proceeding may apply to the court for leave

to ask a witness questions or to answer questions or to make statements that may reveal their true identity but

only if there is evidence that would substantially call into question the witness’s credibility.

The definition of “court” is expansive and includes a tribunal; a royal commission; and a commission, board,

committee or other body established by the Governor to inquire into any matter. By definition, “proceeding”

includes any criminal, civil or other proceeding before, or inquiry, reference or examination by, a court, and

includes arbitration. These definitions afford maximum protection for operatives required to give evidence in

many types of proceedings.

The bill allows the presiding officer the power to require the operative to disclose their true identity to the

presiding officer so he or she can determine whether a conflict of interest or a question of bias exists. This is

intended to avoid a potential miscarriage of justice or the need to abort a trial that is already underway.

The bill also allows the chief officer to issue a certificate for an operative who is required to give evidence in

another participating jurisdiction. Likewise, an interstate operative who has been issued a certificate in their

home state will have that certificate recognised when giving evidence in a Western Australian court. Such

consistent protection is necessary to facilitate and encourage cross-border investigation and to protect the safety

of covert operatives. This mutual recognition provision will operate between those states and territories that have

been recognised as participating jurisdictions.

It is an indictable offence for a person to do something that may disclose the true identity of an operative for

whom a certificate is in force. A penalty of imprisonment for 10 years applies, with a provision for a summary

conviction penalty of two years’ imprisonment or a fine of $24 000. The relevant chief officer of the issuing law

enforcement agency must prepare an annual report regarding certificates issued by their agency. This report must

be given to the agency’s respective minister who must table the report in Parliament.

The bill also amends the Witness Protection (Western Australia) Act 1996 to provide a parallel scheme for the

protection of civilian witnesses who are or have been participants in the state witness protection program. In this

instance, the certificate is known as a non-disclosure certificate and is issued by the Commissioner of Police. The

certificate is filed with the court in which the witness—the protected person—is required to give evidence and

must also detail any offences the protected person has been convicted of. Like a witness identity protection

certificate, a non-disclosure certificate must not state any information that discloses, or is likely to disclose, the

protected person’s true identity or where they live.

Once a certificate is issued, a protected person must not be asked to answer a question or make a statement that

may lead to the disclosure of their protected identity. The court retains the discretion to disclose to parties to the

proceedings the existence of the certificate and what it states, but must do so in the absence of any jury.

All states and territories have committed to the package of cross-border covert investigative powers and these

model laws will in time be implemented by all remaining states and territories. All parts of this bill build in a

number of controls and levels of accountability.

In closing, the bill seeks to give Western Australia Police, the Department of Fisheries and the Australian Crime

Commission the necessary tools to fight serious and organised crime within this state and to promote cooperation

between jurisdictions.

I commend the bill to the house.