Licence to break the law

August 3, 2007

You wake up in the middle of the night to find three men in your home, stealing documents. One of them is a well-known criminal, one a police officer and one a CIA agent. Don't worry, it's all legal and no judge has been bothered for a warrant.

This is what could happen if proposed legislation — titled the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill and due to be discussed in the Senate the week beginning August 6 — is passed, making it easier for members of the Australian Federal Police (AFP) to give themselves authorisation to break the law.

Currently, AFP officers can break the law with immunity in so-called controlled operations. For example, an undercover police officer will deal in drugs in order to infiltrate an organised criminal syndicate.

Currently restricted to the investigation of very serious crimes, the proposed law extends the use of controlled operations to the investigation of the breach of any federal law — however trivial — without further parliamentary amendment.

The authorisation to break the law will be done by the police — indeed, by the officer in charge of the case. It is easy to imagine every investigating officer being tempted to authorise legal immunity for police officers and civilians in order to help them get results.

The authorisation need not identify the particular persons or offences, but need only identify the nature of the unlawful conduct, and the immunity can extend to anyone involved in the case, including civilians. It would allow the AFP to give the green light to an organised criminal syndicate to continue illegal activities.

There is no obligation to report the controlled operation to any outside body, such as the ombudsman, until the controlled operation is over. This after-the-event scrutiny is clearly too late, as controlled operations can last for years or even — under the extension provisions — indefinitely.

In any event, the reporting restrictions are being changed so that the reporting will largely involve numerical data, rather than the detail necessary to ensure compliance with the law.

The Law Council, the Australian Greens and the Australian Democrats have all said the bill should be dumped.

With some understatement, Greens Senator Kerry Nettle said on August 1: "Given the Haneef debacle, now is not the time to be giving more powers to the Australian Federal Police."

Federal ALP leader Kevin Rudd said: "We'll obviously examine any proposal on the merits in terms of the government's injection of any further elements into them but I'd rather get a detailed briefing on those elements."

Further proposed powers would allow foreign police and intelligence agencies to take part in undercover operations and to use fake identities. They, too, can be given criminal immunity by the AFP as part of a controlled operation.

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