Organisation Amendment Bill 2011 - Queensland Parliament · 2011-11-21 · Criminal Organisation...

Criminal Organisation Amendment Bill 2011

Report No. 85 Parliamentary Crime and Misconduct Committee November 2011

Parliamentary Crime and Misconduct Committee Chair Dr Alexander Douglas MP, Member for Gaven

Deputy Chair Mr Evan Moorhead MP, Member for Waterford

Members Ms Grace Grace MP, Member for Brisbane Central

Mr Vaughan Johnson MP, Member for Gregory

Mr Mark Ryan MP, Member for Morayfield

Mr Peter Wellington MP, Member for Nicklin Mr Stephen Wettenhall MP, Member for Barron River

Staff Mr Brook Hastie, Research Director

Mr Michael Gorringe, Principal Research Officer

Mrs Iolene Kokay, Executive Assistant

Ms Renée Easten, Research Director

Mr Ian Caulfield, Principal Research Officer

Technical Scrutiny Secretariat

Ms Dianne Christian, Executive Assistant

Contact details Research Director

Parliamentary Crime and Misconduct Committee Parliament House George Street Brisbane Qld 4000

Telephone +61 7 3406 7207

Fax +61 7 3210 6011

Email [email protected]

Web www.parliament.qld.gov.au/pcmc

mailto:[email protected]

http://www.parliament.qld.gov.au/pcmc

Contents

Abbreviations iv

Executive summary v

Recommendations vi

1. Introduction 1 1.1. Role of the committee 1 1.2. Policy objectives of the Criminal Organisation Amendment Bill 2011 1

2. Examination of the Criminal Organisation Amendment Bill 2011 3 2.1. Approach 3 2.2. Steps taken 3 2.3. Amendments to the Criminal Organisation Act 2009 4 2.4. Amendments to the Crime and Misconduct Act 2001 10 2.5. Amendments to the Criminal Code 10 2.6. Making a regulation under the Criminal Organisation Act 2009 10

3. Fundamental legislative principles 11 3.1. Rights and liberties of individuals 11 3.2. Sufficient regard to the institution of parliament 12 3.3. Explanatory Notes 13

4. Recommendations 15 4.1. Determination as to whether the Bill should be passed 15 4.2. Amendments to the Bill 15

Appendices 16 Appendix A – List of Submissions 16 Appendix B – Table 1: Summary of Submissions as they relate to the Bill 17

Parliamentary Crime and Misconduct Committee iii

Abbreviations Criminal Organisation Amendment Bill 2011

Abbreviations

ACC Australian Crime Commission

ACLEI Australian Commission for Law Enforcement Integrity

AFP Australian Federal Police

ASIO Australian Security Intelligence Organisation

BAQ Bar Association of Queensland

CMC Crime and Misconduct Commission

COPIM Criminal Organisation Public Interest Monitor

OMCG Outlaw Motorcycle Gang

QCCL Queensland Council for Civil Liberties

QLS Queensland Law Society

QPS Queensland Police Service

iv Parliamentary Crime and Misconduct Committee

Criminal Organisation Amendment Bill 20111 Executive summary

Parliamentary Crime and Misconduct Committee v

Executive summary

The Australian Crime Commission estimates that organised crime costs Australia between $10 and $15 billion every year, representing a significant threat to Australian society.1 Organised crime does not respect persons or boundaries. It takes on many forms such as money laundering and identity theft, and is continually evolving as technology also evolves.

In November 2009, the Queensland Parliament passed the Criminal Organisation Act 2009 to enable the Commissioner of Police to disrupt and restrict the activities of organisations involved in serious criminal activity and the members and associates of those organisations. The Criminal Organisation Act 2009 enabled the Police Commissioner to apply to the court for certain control orders against persons or seek that organisations be declared to be criminal organisations. The Act stated it was not the Parliament’s intention that powers under the Act be exercised in a way that diminishes the freedom of persons in Queensland to participate in advocacy, protest, dissent or industrial action. Under Part 6 of the Act, the Commissioner in seeking orders from the Court may also apply to have certain information declared as ‘criminal intelligence’; that is, information which could reasonably be expected to prejudice a criminal investigation; lead to the identity of confidential informants or covert police officers; or endanger a person’s life or physical safety. The Criminal Organisation Amendment Bill 2011 amends Part 6 of the Act to clarify that the Commissioner is able to use intelligence gathered by informants from recognised law enforcement agencies external to the Queensland Police Service to support applications made under the Act, and sets up supportive arrangements to allow external agencies to effectively contribute to the Commissioner’s operations while protecting their own informants’ identities. Law enforcement agencies, both within Queensland and interstate, are working together in the fight against organised crime. It is essential that any legislation empowering these agencies to do their jobs, enables them to do it effectively. The Criminal Organisation Amendment Bill 2011 will go one step further in enabling the Queensland Police Service and other approved law enforcement agencies work together to fight organised crime. It will achieve this objective through a number of amendments to the Criminal Organisation Act 2009, the Crime and Misconduct Act 2001 and the Criminal Code.

1 www.crimecommission.gov.au/media/cost‐organised‐crime‐australia ‐ 20 June 2011

http://www.crimecommission.gov.au/media/cost-organised-crime-australia

Recommendations Criminal Organisation Amendment Bill 2011

Recommendations

Recommendation 1 15 The committee recommends that the Criminal Organisation Amendment Bill 2011 be passed. 15

vi Parliamentary Crime and Misconduct Committee

Criminal Organisation Amendment Bill 2011 Examination of the Bill

Parliamentary Crime and Misconduct Committee 1

1. Introduction

1.1. Role of the committee

The Parliamentary Crime and Misconduct Committee (the Committee or the PCMC) is a statutory committee of the Queensland Legislative Assembly established under the Crime and Misconduct Act 2001.

The PCMC is an oversight committee with the primary function being to monitor and review the performance of the functions of the Crime and Misconduct Commission.

The Standing Rules and Orders of the Legislative Assembly (the Standing Orders) enable the Assembly to refer a Bill to a committee, other than a portfolio committee, for consideration as to:

• the policy to be given effect by the Bill, and • the application of the fundamental legislative principles to the Bill.

If a Bill is referred to a committee other than a portfolio committee, that committee is to follow the procedures in the Standing Orders as if the committee was a portfolio committee.

The Criminal Organisation Amendment Bill 2011 was referred to the PCMC on 26 October 2011 for consideration.

The PCMC is required to report to the Legislative Assembly by 21 November 2011.

1.2. Policy objectives of the Criminal Organisation Amendment Bill 2011

There are no new significant policy objectives being pursued under the Bill. The Bill seeks to address specific issues which have been identified with the operation of the Criminal Organisation Act 2009 by the Queensland Police Service, and put beyond doubt matters that were earlier thought could be achieved without the amendments.

The Bill amends the Criminal Organisation Act 2009 to clarify that the Queensland Police Commissioner may seek to have the Supreme Court declare that ‘informant information’ provided by an agency other than the Queensland Police Service is criminal intelligence for the purpose of the Act.

Consequential amendments are made to the Act to set out how that information is to be provided to the Court and to ensure that external agencies supplying criminal intelligence to the Police Commissioner are confident that the identities of their informants cannot be required to be disclosed.

The Bill also makes consequential amendments to the Crime and Misconduct Act 2001 and the Criminal Code to support these arrangements.

Examination of the Bill Criminal Organisation Amendment Bill 2011

2 Parliamentary Crime and Misconduct Committee



2. Examination of the Criminal Organisation Amendment Bill 2011 2.1. Approach

In examining the Bill, in the time available, the Committee notes that the Bill amends the Criminal Organisation Act 2009, the Crime and Misconduct Act 2001 and the Criminal Code for particular purposes.

The Committee has therefore taken the approach that its focus should not be centred on matters that have already been the subject of debate when the original Act was put before the Legislative Assembly.

The submissions received from Mr Russell Wattie2; the QLS and BAQ (joint submission)3 and the Queensland Council of Civil Liberties4 were critical of the need for the primary Act, namely the Criminal Organisation Act 2009.

For the purposes of this report, the Committee has relied on the Criminal Organisation Act 2009 being a validly constituted act of the Queensland Parliament which has been debated by the Legislative Assembly5 and scrutinised by the former Scrutiny of Legislation Committee6.

The Committee has therefore focussed its consideration on the amendments to be given effect by the Bill rather than questioning the policy behind the development of the Criminal Organisation Act 2009.

2.2. Steps taken

To assist with its examination of the Bill, the Committee sought written submissions from –

• relevant stakeholders – by writing directly to the stakeholders identified by the Committee as having an interest in the Bill on 28 October 2011;

• other interested persons – by inviting subscribers to the PCMC and the Legal Affairs, Police, Corrective Services and Emergency Services Committee websites to comment on 28 October 2011;

• the general public – by advertising in the Courier Mail on 29 October 2011.

Written submissions closed on 7 November 2011. A total of 5 submissions were received (listed in Appendix A).

The Committee received a private briefing on the Bill from representatives from the Department of Justice and Attorney General, the Queensland Police Service and the Crime and Misconduct Commission. Due to the sensitive nature of the matters to be discussed with the Committee, the Committee resolved that the briefing take place in private session.

The Committee also sought the advice of the current COPIM, Mr Robert Needham, in relation to what, if any, impact the amendments would have on his ability to perform his role under the Criminal Organisation Act 2009. 2 Submission No. 1 3 Submission No. 2 4 Submission No. 5 5 Queensland Legislative Assembly (Hansard), 25 November 2009, pp 3594‐3604, 3604‐3638 and

Queensland Legislative Assembly (Hansard), 26 November 2009, pp 3683‐3715. 6 Legislation Alert No.11/09, Scrutiny of Legislation Committee, tabled 10 November 2009

http://www.parliament.qld.gov.au/documents/committees/PCMC/2011/CriminalOrganisation/submissions/001-Wattie.pdf

http://www.parliament.qld.gov.au/documents/committees/PCMC/2011/CriminalOrganisation/submissions/002-QLS&BAQ.pdf

http://www.parliament.qld.gov.au/documents/committees/PCMC/2011/CriminalOrganisation/submissions/005-QCCL.pdf

http://www.parliament.qld.gov.au/documents/hansard/2009/2009_11_25_WEEKLY.pdf


http://www.parliament.qld.gov.au/documents/committees/SLC/2009/la0911t.pdf



Given the time available in which to report to the Assembly, the limited number of submissions received and the comprehensive nature of the matters raised in the submissions, the Committee determined that it did not require a public hearing to receive further oral submissions on the Bill.

The Department of Justice and Attorney General, having responsibility for the Bill was invited by the Committee to provide further information in response to the matters raised in submissions.

2.3. Amendments to the Criminal Organisation Act 2009

The Bill seeks to address potential issues with the Criminal Organisation Act 2009 (the Act), where the Police Commissioner applies to the Supreme Court for a declaration that information provided by an external law enforcement agency is criminal intelligence for the purposes of the Act.

Currently, the Act is not clear in its application to informant information supplied by external agencies to the Police Commissioner for applications to the Court under the Act.

The amendments contained in the Bill clarify that informant information from a range of external agencies may be provided to the Police Commissioner and be used in an application; and set up a supportive arrangement to allow external agencies to effectively contribute to the Police Commissioner’s operations while protecting their own informants’ identities. The amendments do not alter the powers or functions of the COPIM under the Act.

While the Committee accepts there are other mechanisms to combat organised crime, the Committee is satisfied that there are no alternate ways to achieve the objectives of this Bill as set out in the Explanatory Notes.

An examination of the amendments

Clause 3 of the Bill amends section 59 of the Act ‐ What is criminal intelligence. The amended provision makes it clear that the defined term ‐ criminal intelligence now includes information that the Police Commissioner has obtained through the QPS or from an approved external agency.

The joint submission by the QPS and the BAQ raised the issue that by widening the source of criminal intelligence to agencies outside the QPS, the origins of the intelligence is even more dubious and the provision of verifying applications more specious.

The QCCL submission was critical of the need to use secret evidence at all and referred heavily to the June 2009 Justice report7. It was further submitted that the safeguards offered in the Bill were not sufficient to protect individuals against informants lying and presenting false information.

The Committee is satisfied that the supporting arrangements put in place by the Bill effectively counter this argument. The external agencies which are able to provide informant information to the QPS are recognised crime fighting or intelligence gathering bodies.

There is no evidence to suggest that criminal intelligence provided through an external agency would be any less reliable than through the QPS. Furthermore, the Committee accepts the original intent of the Criminal Organisation Act 2009 was for the Police Commissioner to use information from a variety of law enforcement agencies and this amendment is simply clarifying the issue.

The Committee supports the amendments.

7 “Secret Evidence”, a Justice report by Eric Metcalfe, 10 June 2009



Clause 4 of the Bill inserts a range of additional definitions into the Act to enable the objectives of the Bill to be achieved. The section includes the new term ‘Identifying information’ which is used throughout the amendments and means any of the following:‐

(a) name, including any aliases;

(b) date of birth;

(c) current location;

(d) where the informant resides;

(e) a position held by the informant in an organisation.

The Committee notes the definition of ‘external agency’ includes the ability for an overseas entity to be declared by regulation as an external agency.

Given the international nature that organised crime may take and the criteria to be satisfied for such an entity to be declared as an external agency, i.e. an entity that is established under a law of another jurisdiction, with functions that include investigating or inquiring into criminal conduct, misconduct or corruption (whether or not the functions are in the establishing law), the Committee is satisfied that the ability to declare an overseas external agency by regulation is appropriate.


Clause 5 of the Bill replaces the following sections in the Act – section 63 ‐ Applying for declaration, and section 64 – Additional affidavit if informant relied on, to support the now clarified ability to use information from external agencies.

The two sections have been replaced in their entirety, however, on examination effectively only little will change in operation from the previous clauses.

Section 63 ‐ Applying for declaration

As set out in the Explanatory Notes, the new subsections (1), (2), (4) and (6) of section 63 reflect the existing subsections. (Discussed further in Fundamental Legislative Principles at page 11)

New Subsection (3) states that the Commissioner’s application to the court must now also state the relevant agency for the information, given the clarified ability to use information from external agencies.

New subsection (5) refers to information which has been provided by an informant and is designed to protect the identity of an informant. In this instance, the Commissioner’s application to the court is not required to include any identifying information about the informant and the provision states that identifying information about the informant cannot otherwise be required to be given to the court.

New subsection (7) includes a new definition for ‘intelligence assessment system’ used within the section, which clarifies the existing section 63(3)(c) given the clarified ability to use information from external agencies.

Section 64 – Additional affidavit if informant relied on

As set out in the Explanatory Notes, the new subsections (1) ‐ (3) of section 64 reflect the existing subsections with relevant amendments given the now clarified ability to use information from external agencies. (Discussed further in Fundamental Legislative Principles at page 11)

New subsection (4) has been redrafted to reflect the clarified ability to use information from external agencies and also sets out the additional requirements to be contained in an affidavit accompanying an application, if informant information is to be relied on.


The Act currently provides that an officer must set out in their accompanying affidavit:

• the informant’s full criminal history, including pending charges;

• any information about the allegations of professional misconduct against the informant; and

• any inducements or rewards offered or provided to the informant in return for assistance,

and state the reasons that the officer holds an honest and reasonable belief that the intelligence is reliable.

The amendments to section 64(4) in clause 5 of the Bill add to the above requirements making it a requirement under the amended process that an officer from a relevant agency must also state the following information in their affidavit:

• the relevant agency;

• the officer’s position at the relevant agency;

• that the officer reasonably believes, and has made all reasonable efforts to ensure, the officer has full knowledge of:

(i) the information held by the relevant agency about the informant; and (ii) the intelligence held by the relevant agency that was provided by the informant;

• that the officer reasonably believes the relevant agency has made all reasonable inquiries about the existence of, and to obtain details of, any allegations of professional misconduct against the informant;

• whether the informant was an adult or a child when the informant provided the relevant intelligence to the relevant agency; and

• whether the informant was serving a term of imprisonment or otherwise being held in custody when the informant provided the intelligence to the relevant agency.

The CMC stated in its submission that it was greatly concerned under the current processes in the Act, that the provision of the information required under section 64 by CMC officers would give rise to an unacceptable risk that CMC informants would be indentified (by providing their full criminal records) and thereby jeopardising their physical safety and irreparably damaging ongoing associations.

In order to enable relevant external agencies, such as the CMC, to aid the Police Commissioner, subsections (5) to (10) of section 64 have been added to afford protection to the identity of the informant who provides the information to the relevant agency.

Consequently, section 64(5) therefore dilutes the requirement to provide details of an informant’s full criminal history (including pending charges), and enables an officer to provide the informant’s criminal history in their affidavit, by describing the conviction or charge by category type without providing full particulars of the offence to which the conviction or charge relates.

The Committee notes that this is a minimum requirement and that if the informant’s identity is not likely to be disclosed, a full criminal history may be provided.

Similarly, to protect the identity of an informant, in relation to any allegations of professional misconduct against the informant, the new section 64(6) allows an officer to state whether or not there have been any such allegations and whether they involved dishonesty.

The amendments do not require specific dates to be set out, but allows the conviction or charge to be specified as having occurred in a stated period of not more than 7 years. Section 64(7) of the Bill provides an example of how this operates.




New sections 64(8) and 64(9) make it clear that no other information other than that which is required in the preceding sections may be required to be given to the court, however further information may still be provided to the court but not under a requirement.

In addition, section 64(10) clarifies that the requirement to supply a full criminal history applies only to the extent of the information held by an external agency, if the officer providing the affidavit believes the agency does not hold all the information required; and the agency could not lawfully obtain further information or obtain it without disclosing the informant’s identity.

The Committee notes the concerns raised by the QLS and BAQ, and the QCCL in relation to the provision of a lesser detailed criminal history being provided to the court.

The Committee considers that while the information provided by an external agency in relation to an informant’s criminal history might be less specific than under the current process, the additional information to be provided to the court under section 64(4) will assist the court in giving appropriate weight to the information before it.

Additional obligations have been placed on an officer when swearing an affidavit to accompany a criminal intelligence application in that an officer must attest to the fact that they have made reasonable efforts to ensure they have full knowledge of the information held by their agency about the informant and the information supplied by the informant. The officer must also swear that they hold an honest and reasonable belief that the relevant intelligence is reliable and the reasons for that belief. The officer providing the affidavit must be available to be cross‐examined by the court and the COPIM on all matters contained in the affidavit.

The Committee sought the oral advice of the COPIM on this matter and he considered that in order to protect an informant’s identity, the full criminal history would need to be diluted. The COPIM considered that the amendments in the Bill would not impinge on his ability to carry out his functions under the Act and would not affect his role. The COPIM further considered that it was an important aspect of the process for any officer putting forward information, to provide the accompanying sworn affidavit containing the matters set out in the Bill.

The Committee recognises it is of fundamental importance that the court is able to appropriately assess the credibility of an informant providing information, but considers that to enable the processes to work effectively, the informant’s identity must be protected otherwise no information will be forthcoming at all.

The Committee considers the amendments to section 64 set out above strike a necessary balance between these competing considerations to enable the Bill achieve its objectives.


Clause 6 of the Bill replaces the current section 65(4) and is a consequential amendment using the new defined terms.


Clause 7 replaces the current section 71 – Oral evidence by police officers, with a new section reflecting the previous section but accommodating the now clarified ability to use information from external agencies.


Clause 8 of the Bill amends section 72 – Deciding application, by inserting additional subsections to clarify how the court may decide an application.


The current section 72 states that in exercising its discretion to declare information to be criminal intelligence, a court may have regard to whether the matters mentioned in section 60(a)(i) to (iii) outweigh any unfairness to a respondent. The section 60 matters to which the court may have regard are, whether:

(i) a criminal investigation would be prejudiced; or

(ii) the discovery of the existence or identity of confidential sources of information relevant to law enforcement would be enabled; or

(iii) anyone’s life or physical safety would be endangered.

The Committee considers that the new section 72(3) clarifies that the court, in deciding an application to declare information to be criminal intelligence is not limited to the matters it may consider in exercising its discretion set out above. The Bill includes an example to be inserted in the Act to further clarify this matter.

Clause 8 goes on to insert a new safeguard into the process of declaring criminal intelligence in section 72(4) of the Act. This additional check prohibits the court from declaring that information in the Police Commissioner’s application is criminal intelligence, unless it is supported in a material particular by other information before the court.

Under the new section 72(5), the corroborating material for section 72(4) may simply be other information before the court that is criminal intelligence or that is the subject of a criminal intelligence application. (Discussed further in Fundamental Legislative Principles at page 12)

The joint QLS and BAQ submission is critical of the section stating that the corroboration is only illusory as the purported criminal intelligence (from an informant) may be supported by other criminal intelligence (i.e. from another anonymous informant). The QCCL submits that a court will not be able to critically assess the weight to place on such intelligence as the court is denied the opportunity to cross‐examine the informant.

The Committee considers that the information required for an affidavit outlined above in the new section 64 of the Act, (additional affidavits being required for each application for declaration of criminal intelligence) will provide the court with sufficient information to aid in the assessment of the material placed before it.

The officer from the relevant agency must provide a sworn affidavit containing reasons as to why they have formed a reasonable belief that the information is reliable and that they have full knowledge of the informant.

The court has sufficient discretion not to make a declaration if it is not satisfied with the information put before it.


Clause 9 of the Bill replaces the current section 76 – Additional affidavit if informant relied upon. The new section largely reflects the current section however is amended to accommodate the now clarified ability to use information from external agencies.

A new section 76(4) has been included to ensure that the identity of an informant is protected and that no identifying information, as defined in the Act, appears in the application or accompanying affidavits.




The Committee considers the protection of the informant’s identifying information is pivotal to the suite of amendments being made. The Committee considers that if this section was not clear in its application, support to the Police Commissioner from external agencies would not be forthcoming.


Clause 10 of the Bill replaces the current section 77 (4) and is a consequential amendment using the new defined terms.


Clause 11 of the Bill inserts a new section 78(2)(c) into the Act – Special closed hearing for consideration of intelligence. The amended section allows an officer of an external agency from which the Police Commissioner has received criminal intelligence to be present during the closed hearing. It is therefore a necessary amendment to give effect to the scheme.


In a similar manner to clause 7, clause 12 replaces the current section 80 – Oral evidence by police officers, with a new section reflecting the previous section but accommodating the now clarified ability to use information from external agencies.


Clauses 13 to 15 of the Bill contain minor consequential amendments.


Clause 16 of the Bill inserts a new section 136A into the Act, specifically to deal with ASIO Officers.

The effect of the section is that once ASIO is declared by regulation to be an external agency, an officer of ASIO will be excluded from the newly amended definition of ‘informant’ (by clause 18 of the Bill). The Committee accepts the reason given in the explanatory notes that ASIO operatives use an assumed identity as a matter of course in performing their duties and that the clause is warranted on that basis.

ASIO was invited to provide a submission on the Bill and advised the Committee that it would not be providing any comment.

The Committee supports the amendments

Clause 17 of the Bill inserts a machinery provision (section 142) into the Act which supports the creation of the Criminal Organisation Regulation 2011 (the Regulation) in clause 23 of the Bill. The new section clarifies that the Regulation is subordinate legislation and is able to be amended or repealed in the same manner as any other regulation after it takes effect.

New section 142(3) of the Act states that Part 6 of the Statutory Instruments Act 1992 will not apply to the Regulation and therefore it will not be required to be tabled after it is made. Further, it will not be subject to the disallowance provisions in the Statutory Instruments Act 1992.

The Committee considers that as the schedule contained in the Bill will be able to be debated by the Legislative Assembly as part of the Bill – it will have sufficient scrutiny of the House, if not more, prior to taking effect. (Discussed further in Fundamental Legislative Principles at page 17)


Clause 18 of the Bill inserts new definitions into the Dictionary contained in the Act required to support the substantive amendments to the Act.




2.4. Amendments to the Crime and Misconduct Act 2001

Clauses 19 and 20 of the Bill provide for the amendment of the Crime and Misconduct Act 2001.

The Bill extends the circumstances of when a person to whom the secrecy provision in the Crime and Misconduct Act 2001 applies, may make a record or disclose information to the Police Commissioner for the purposes of an application or proceeding under the Criminal Organisation Amendment Act 2009.

Without the amendment, the Crime and Misconduct Commission would be limited in its ability to assist the Police Commissioner with an application under the Act.


2.5. Amendments to the Criminal Code

Clauses 21 and 22 of the Bill provide for the amendment of the Criminal Code.

The Bill amends the definition of ‘criminal organisation informant’ in section 86 of the Criminal Code to ensure consistency with the amendments made to the same definition in the Criminal Organisation Act 2009 and is therefore supported by the Committee.


2.6. Making a regulation under the Criminal Organisation Act 2009

Clause 23 of the Bill is a machinery provision which enables the Parliament to make the contents of the schedule contained in the Bill, a regulation made under the Criminal Organisation Act 2009. The schedule contains a list of entities to be declared ‘external agencies’ for the purposes of the Act. The Committee is satisfied that the entities set out in the schedule are appropriate entities to be declared external agencies for the purposes of Act.

Clause 23 of the Bill operates in conjunction with the clause 17. It clarifies that on commencement of the Bill as an amending Act, the schedule stops being a provision of the amending Act and becomes a regulation under the Criminal Organisation Act 2009.

As the regulation is effectively being made by the machinery provisions contained in the Bill and not by the Minister under the regulation making power in the Criminal Organisation Act 2009, it is not required to be gazetted or tabled in the Legislative Assembly by the Minister.

Despite Part 6 of the Statutory Instruments Act 1992 (tabling, disallowance) not applying to the regulation, the Committee considers that as the schedule contained in section 23 of the Bill is being placed before the Legislative Assembly as a substantive part of the Bill, it will have sufficient scrutiny of the House prior to it taking effect.


Clause 24 of the Bill clarifies for the purpose of the Acts Interpretation Act 1954, the Bill will be an amending Act once it takes effect.


Criminal Organisation Amendment Bill 2011 Fundamental legislative principles


3. Fundamental legislative principles

Standing Order 132(1)(c) provides that the Committee, in examining the Bill, shall consider the application of fundamental legislative principles contained in Part 2 of the Legislative Standards Act 1992 and compliance with Part 4 of the Legislative Standards Act 1992 regarding explanatory notes.

Fundamental legislative principles are considered to be those ‘principles relating to legislation that underlie a parliamentary democracy based on the rule of law’.

The principles include that legislation has sufficient regard to the rights and liberties of individuals, and the institution of parliament.

3.1. Rights and liberties of individuals

Natural justice and procedural fairness concerns Section 4(3)(b) of the Legislative Standards Act 1992 provides that whether legislation has sufficient regard to rights and liberties of individuals depends on whether, for example, the legislation is consistent with principles of natural justice. The Committee notes the report of the former Scrutiny of Legislation Committee8 in relation to consistency with natural justice principles in respect of the Criminal Organisation Act 2009. The Committee especially notes the concerns of the former Committee relating to:

‐ the inability of an informant to be called before the court or otherwise be required to give evidence (clause 5 – amending section 64(2) of the Act); and ‐ the restrictions on the COPIM in not being able to cross‐examine an informant or inspect any

document to the extent that it discloses any identifying information about an informant (clauses 6 & 10 amending sections 65(4) and 77(4) of the Act respectively).

The Committee notes that while these concerns raise significant natural justice issues – they are not fresh issues and the objects of Part 6 of the Criminal Organisation Act 2009 remain unchanged by the Bill currently under examination. The Committee considers these matters were effectively addressed in the former Scrutiny Committee’s report on the original bill, where, in response to issues about the use of criminal intelligence, that committee referred to the explanatory notes for that bill which provided the following justification from the departures from normal principles of natural justice:

The respondent to an application will be denied access to criminal intelligence information. Also, the court and COPIM can not call an informant or operative for the purpose of testing the veracity of the informant’s evidence.

Such an approach is necessary to protect the identity of the informant/operative and the viability of the informant as a continuing source of criminal intelligence information.

However, where the Commissioner seeks to rely on information provided by an informant or operative as part of the criminal intelligence, an affidavit from the police officer that handles the informant/operative must be filed with the court….

…..The police officer who swears the affidavit must be available for examination or cross examination.

Further, when seeking to rely on criminal intelligence, including informant information, the Police Commissioner must provide the court with information outlining the Queensland Police Service (QPS) internal classification process for intelligence and the classification that was assigned to the intelligence in issue with respect to the intelligence’s reliability and credibility.

Further, the court retains full discretion to determine what weight to give any evidence before it, including informant evidence.

8 Legislation Alert No.11/09, Scrutiny of Legislation Committee, tabled 10 November 2009, pages 23‐24.


Fundamental legislative principles Criminal Organisation Amendment Bill 2011


A further issue relating to natural justice arises in clause 8 of the Bill. This clause inserts a new section 72(4) into the Act which prohibits the court from declaring that information provided by an informant is criminal intelligence, unless some or all of that information is supported in a material particular by other information before the court. Under the new section 72(5), the corroborating material for section 72(4) may simply be other information before the court that is criminal intelligence or that is the subject of a criminal intelligence application. Essentially, untested information that is declared or purported to be ‘criminal intelligence’ can be used to corroborate other information sufficient to have that also declared as (similarly untested by cross‐examination) criminal intelligence. When examined without reference to the other sections contained in that Part 6, it appears that this section may cause concern in its operation. The Committee notes however, that this section has been added to the procedures under Part 6 to strengthen the process and will assist the court in determining whether to exercise its discretion and declare the information to be criminal intelligence. Further, the Committee notes that if the other corroborating evidence is provided by another informant, that evidence must also be accompanied by a supporting affidavit sworn by an officer setting out the matters contained in section 64 of the Act.

3.2. Sufficient regard to the institution of parliament

The Committee further notes the report of the former Scrutiny of Legislation Committee9 in respect of [the now current] section 64 of the Criminal Organisation Act 2009 and the former committee’s concerns regarding interference by section 64 with the independence and impartiality of the Supreme Court exercising powers under the legislation. The Committee notes similar concerns could arguably apply in respect of section 64 as amended by clause 5 of the Bill, but considers for the purposes of this report, and in accordance with the explanatory notes provided, the effect of clause 5 of the Bill is essentially to widen the breadth of evidence that can be admitted as criminal intelligence by enabling external agencies to now also provide intelligence to support an application. The Committee notes the safeguard in the current section 64 of requiring an informant’s full criminal history to be provided, is diluted by the amendments in clause 5. However it notes that this is balanced by the additional requirements also set out in clause 5 (detailed above) and the additional requirements in clause 8, which amend section 72 of the Act.

Delegated legislative power subject to scrutiny by the Legislative Assembly

As set out above, in examination of the Bill, clause 17 of the Bill inserts a new section 142 into the Criminal Organisation Act 2009 which states that part 6 of the Statutory Instruments Act 1992 (including the disallowance provisions) does not apply to that regulation.

The Committee is satisfied the Bill (incorporating the regulation in the schedule as it does) will receive sufficient scrutiny by the House that disallowance provisions that would normally apply to gazetted subordinate legislation would not be required in this instance.

9 Legislation Alert No.11/09, Scrutiny of Legislation Committee, tabled 10 November 2009, pages 27‐28.


Criminal Organisation Amendment Bill 2011 Fundamental legislative principles


3.3. Explanatory Notes

Subsection 22(1) of the Legislative Standards Act 1992 states that when introducing a bill in the Legislative Assembly, a member must circulate to members an explanatory note for the bill. Section 23 of the Act requires an explanatory note for a bill to be in clear and precise language and to include the bill’s short title and a brief statement providing certain information.

Explanatory notes were tabled with the introduction of the Bill.

The Committee considers the notes were fairly detailed and contained the information required by s.23 and a reasonable level of background information and commentary to facilitate understanding of the Bill’s genesis and objectives.

Fundamental legislative principles Criminal Organisation Amendment Bill 2011


Criminal Organisation Amendment Bill 2011 Recommendations


4. Recommendations

4.1. Determination as to whether the Bill should be passed

When the Bill was introduced into the House, the Attorney General stated that the amendments in the Bill were practical in nature and would ensure that intelligence collected by external agencies, (other than the Queensland Police Service) could be used to tackle criminal organisations in Queensland10. The Committee considers that the Bill achieves this objective. It clarifies that the Police Commissioner is able to use intelligence gathered by informants from recognised law enforcement agencies external to the Queensland Police Service to support applications made under the Act; and sets up supportive arrangements to allow external agencies to effectively contribute to the Commissioner’s operations while protecting their own informants’ identities. After examination of the Bill, the Committee makes the following recommendation:

Recommendation 1

The committee recommends that the Criminal Organisation Amendment Bill 2011 be passed.

4.2. Amendments to the Bill

The Committee makes no recommendations in relation to amendments to the Bill.

10 Queensland Legislative Assembly (Hansard), 25 October 2011, page 3366


Appendices Criminal Organisation Amendment Bill 2011

Appendices

Appendix A – List of Submissions

Sub # Name (of individual OR organisation)

1 Mr Russell Camel Wattie

2 Joint submission ‐ Queensland Law Society & Bar Association of Queensland

3 Queensland Police Service

4 Crime and Misconduct Commission

5 Queensland Council for Civil Liberties

Submissions received on the Criminal Organisation Amendment Bill 2011 are available on the Committee’s website at www.parliament.qld.gov.au/pcmc.


http://www.parliament.qld.gov.au/pcmc

Appendix B – Table 1: Summary of Submissions as they relate to the Bill

Submitter and No. Clause No. Section amended Issues raised in submission

1. Russell Wattie The submission did not address amendments contained to the Bill but focussed on the validity of the primary Act.

3. Amendment of section 59 (what is Criminal Intelligence)

By widening the source of criminal intelligence to agencies outside the QPS, the origins of the intelligence used is even more dubious and the provision of verifying applications is more specious.

4. Insertion of new section 59A (other definitions)

Concerned that the source of the intelligence may be serving prisoners, either in Qld or elsewhere. Queries the reliability of information provided by prisoners. Reliance on information provided by prisoners without forensic testing could cause serious injustice.

The observation is made that the extended definition of ‘informant’ – consequently extends the protections of their identity to a wider range of informants.

Protection of informants Matters for affidavit The material required in the affidavit to be supplied if informant information is relied on – does nothing to

protect the validity of the information. It is submitted the protections the provisions are supposed to enshrine are illusory.

The requirement to provide a full criminal history of the informant in the provisions is able to be truncated to the point where its level of assistance is only marginal.

5 ‐7, 9, 10, 12, 18

Definitions ‘Professional Misconduct’ – not defined and is too broad.

2. QLS and BAQ (continued)

8. Amendment of section 72 (deciding application)

The fact that anybody who gives information under the Act cannot be identified and challenged (with respect to their motives and agendas for providing the information) may lead to the imprisonment of persons and other serious consequences to their lives and liberties.


Without the amendment, the QPS has difficulty in maintaining the confidentiality of information obtained from Law Enforcement Agencies (LEA) or organisations other than the QPS. This could lead to other LEAs not sharing information wit the QPS to support applications under the Act.

3. QPS 4. Insertion of new section 59A

(other definitions) The changes are necessary to ensure the courts can properly consider information from other LEAs or organisations that the QPS seeks to provide to the court to support applications under the Act.

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Submitter and No. Clause No. Section amended Issues raised in submission

5. Replacement of sections 63 and 64

The changes are necessary to ensure the courts can properly consider information from other LEAs or organisations that the QPS seeks to provide to the court to support applications under the Act.

7. Replacement of section 71 (Oral evidence by police officers)

The changes are necessary to extend the legislative safeguards to information received by agencies other than the QPS and allows for cross‐examination of agencies’ handlers by the court and the COPIM.

8. – 14. Miscellaneous The changes are required to address the legislative safeguards set out in the Act relating to information sourced from other agencies, but relied on by the QPS.

3. QPS (continued)

18 Amendment of Schedule 2 (Dictionary)

The changes are necessary to ensure compliance wit h the legislative safeguards set out in the Act and afford the protection of the Act to the agencies and their informants.


The proposed change extends the definition to entities outside Australia which widens the ambit of secret evidence to include anonymous informant allegations being made from overseas countries.

5. Amendment of section 64 (Additional Information if Informant relied upon)

The amendment prevents even a Supreme Court Judge who hears an application for criminal intelligence from being able to examine the full criminal history of an informant.

6. Amendment of section 65 (Role of the Criminal Organisation Public Interest Monitor (COPIM))

The amendment does not allow the COPIM to inspect any document to the extent that the document may (not will) disclose any information at all about an informant.

4. QCCL

8. Amendment of section 72 (Deciding application)

In conjunction with section 60, this amendment effectively requires the court to make an Order sought by the police in a one‐sided application on secret evidence where a hearing for a declaration that evidence is criminal intelligence is held in secret and in a closed court where even the role of the COPIM is limited.

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Clause No. Section amended Issues Raised in Submission

9. Amendment of section 76 (special safeguards)

There is an inability in the amendment to explore whether the information provided by a police officer in his affidavit as to his relationship with the informant is true so as to allow a court to come to its own independent view as to whether the factual matters put forward by the police officer as to his relationship with the informant are correct or not.

4. QCCL

(continued)

12. Amendment of section 80 (Oral evidence by police officers)

The COPIM is restricted in his questioning and cannot ask questions that could lead to the disclosure of any identifying information about an informant with this amendment.

5. CMC 5. Amendment to Section 64(4) The Bill usefully amends section 64(4) to enable relevant agencies to inform the court of the antecedents of an informant, including any criminal history, in such a way as to substantially reduce any risk of identification. Even allowing for the proposed amendments, there are some instances that the CMC may decline to support a QPS application on the basis of an unacceptable risk of identification of an informant.

Organisation Amendment Bill 2011 - Queensland Parliament · 2011-11-21 · Criminal Organisation...

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