Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.
POLICE POWERS (CONTROLLED OPERATIONS) BILL 2006 (No. 36)
Mr KONS (Braddon - Minister for Justice and Workplace Relations - 2R) - Mr Speaker, I move -
That the bill be now read the second time.
There are three other bills connected with this one - the Police Powers (Surveillance Devices) Bill, the Police Powers (Assumed Identities) Bill and the Witness (Identity Protection) Bill. I have spoken to the Opposition and they are happy to deal with them cognately.
Contemporary policing requires law enforcement agencies to undertake covert investigations that extend beyond the boundaries of any one jurisdiction. We have seen in the recent past highly organised criminal networks such as drug cartels, motor vehicle rebirthing gangs and motorcycle gangs operate with relative ease across State and Territory borders. Tasmania has not been totally immune to these activities. A nationally coordinated and cooperative approach to law enforcement is vital in tackling this type of organised crime.
The four bills which we will be considering this week arose from an agreement between national, State and Territory leaders at the April 2002 Leaders Summit on Terrorism and Multi-jurisdictional Crime. Because of the common history and purpose of the bills, I propose to use this time to give some of the background for all four bills to save time in addressing the remaining bills.
At the April 2002 meeting, Commonwealth, State and Territory leaders agreed on a number of reforms to enhance arrangements for dealing with multi- jurisdictional crime. In particular, the States and Territories agreed to introduce model laws for a national set of powers for cross-border investigations covering four main areas:
(1) Controlled operations, which authorise undercover law enforcement officers to engage in unlawful conduct under controlled conditions to investigate serious offences;
(2) Surveillance devices, using listening, optical and tracking devices to monitor suspects;
(3) Assumed identities, regulating the acquisition and use of false identities for law enforcement purposes; and
(4) Witness anonymity, which provides for the protection of a law enforcement operative's and other protected witnesses' identity in court.
A joint working group on cross-border investigative powers was established by the Standing Committee of Attorneys-General and the Australasian Police Ministers Council to further the work of the summit and develop model laws.
Tasmania Police, along with other State and Territory law enforcement representatives, participated in the joint working group. In November 2003 the joint working group published its report entitled Cross-border Investigative Powers for Law Enforcement. The report was subsequently endorsed by SCAG and COAG. Its major recommendation was that States and Territories adopt model laws to include reciprocal acceptance of the powers and authorities of the law enforcement agencies and reciprocal protections to participants in properly authorised activities so that we have in effect a national set of powers for cross-border criminal investigations. This Police Powers (Controlled Operations) Bill 2006 and the other three bills are based on the model legislation developed for COAG.
In 2002 the laws of the States and Territories differed markedly and generally were designed to operate within the territorial borders of each jurisdiction. The adoption of model laws by all jurisdictions will create complementary legislative schemes dealing with the investigation of serious offences so as to provide a means by which the investigations undertaken by law enforcement agencies can be undertaken across jurisdictional boundaries.
Under the model laws, State or Territory police officers will be able to continue their investigations in another State or Territory under a warrant or other form of authorisation issued in their home jurisdiction. Crimes such as trafficking in drugs and dealing with stolen or otherwise unlawfully obtained goods or money quite often involve activities in more than one jurisdiction and the legislation will give officers the capacity to follow the offenders or goods into the other State or Territory without the necessity of obtaining additional warrants or authorisations in the second jurisdiction.
Basically, under this legislative reform any protections afforded to Tasmanian police officers in respect of such operations within Tasmania will apply to interstate officers whose investigations under properly issued warrants and authorisations from their jurisdiction require them to come into Tasmania. Under this mutual scheme Tasmanian officers will be given similar protections in the other jurisdictions.
Through COAG, each State and Territory has agreed to introduce legislation based on the model laws. This will enable each jurisdiction to recognise each other's legislation so it will create a national scheme where traditional geographical borders will not impede criminal investigations.
New South Wales, Victoria and Queensland have each enacted laws based on the model and, while the Commonwealth does not have the same jurisdictional and border concerns, it has also legislated to cover controlled operations, assumed identities and other matters in this package.
In some cases States and Territories, including Tasmania, did not have legislation that dealt with police officers engaging in undercover operations and covert surveillance. In those cases the common law governed the use of evidence gathered through undercover operations and covert surveillance. This was not entirely satisfactory as it put the identities of some officers and subsequent prosecutions at risk.
The solution we are proposing is to put in place laws which cover investigation of serious offences and crimes solely within Tasmania at the same time and in the same way as dealing with cross-border operations. Thus, like Queensland's recent legislation, these bills will provide a scheme for the investigation of serious offences and crimes against Tasmanian laws which may involve investigative activities entirely within Tasmania or in Tasmania and another jurisdiction.
The four Tasmanian bills will together create a set of laws which will facilitate both local and cross-border investigations and will, by adherence to the model bills, ensure recognition of Tasmanian laws by other States and Territories. It will enable Tasmanian law enforcement officers to operate in other jurisdictions under Tasmanian warrants or authorisations.
Before I turn to the detail of the Controlled Operations Bill itself, I will briefly explain the four areas that the bills deal with. Firstly, a controlled operation is an investigative method used by law enforcement agencies to identify suspects, gather intelligence and obtain evidence of criminal activity to support a prosecution. Instead of using a traditional law enforcement approach that immediately terminates criminal activity once it is detected, a controlled operation permits the criminal enterprise to continue to unfold under controlled conditions. During a controlled operation authorised under this act, a covert or undercover police operative may be required to commit offences - for example, buying or possessing illicit drugs - but only after the appropriate authorisation has been obtained and only under strict conditions. The controlled operations legislation provides authority for law enforcement officers to be involved in conduct which would otherwise be unlawful and provides for evidence obtained in that way to be admissible, notwithstanding the potential involvement in illegal activity by the operatives by whom it was gathered. To undertake the undercover work, the officer may also need to take on a false identity and the officer's identity may subsequently need to be protected.
Secondly, the surveillance devices legislation provides for the use of electronic devices to monitor, record, listen to, overhear or track persons reasonably suspected of being involved in a criminal activity. Not all such surveillance activities are currently unlawful but a warrant is required when the installation or use of a surveillance device is otherwise unlawful or may be intrusive.
Thirdly, assumed identities legislation provides for the acquisition and use of false identities for law enforcement purposes. There is no current legislation regulating the use of assumed identities for controlled operations. The bill I will be bringing forward provides an approval regime for acquiring and using assumed identities by law enforcement officers, whether or not as part of a controlled operation, and provides a measure of protection to bodies which provide the false identification documents to officers.
Fourthly, witness identity protection legislation provides for the protection of a law enforcement operative's true identity when giving evidence in court if revelation of the true identity might endanger the operative or another person or prejudice an ongoing investigation. That bill also covers the protection of the identities of persons who are under witness protection schemes whose true identities and addresses need to be protected.
Each bill confers powers on the Tasmania Police Service and the Australian Crime Commission. The latter is needed as the ACC is a body established jointly by the States, Territories and the Commonwealth and its powers are dependent upon the participating jurisdictions conferring powers on the commission.
The national model laws and each of the Tasmanian bills also include accountability requirements such as inspection, record-keeping and reporting requirements. The combination of 'front-end' safeguards through the approval processes, the record-keeping requirements and the reporting obligations impose significant requirements and expectations on the law enforcement agencies with a resultant high level of accountability.
In addition to any other oversight arrangements, all of the bills have requirements placed on the chief officer of the law enforcement agencies - Tasmania Police and the Australian Crime Commission - to provide annual reports to the Minister for Justice and Workplace Relations - that is the minister administering the acts - and to the Minister for Police and Emergency Management on the operation of the acts and the use of the powers under the acts. The acts each list a range of matters that have to be included in the chief officer's report after the end of each financial year. Subject to editing to protect matters that might endanger individuals or prejudice ongoing investigations or prosecutions if necessary, the reports to the Minister for Justice are required to be tabled in both Houses of Parliament.
What will Tasmania's adoption of the bills based on the model laws mean for interstate law enforcement agencies and officers? If other jurisdictions have enacted legislation compatible with the models, they will be able to come into and operate in Tasmania under their own warrants and authorities and use these covert powers in Tasmania, having satisfied any prerequisites and procedures in their home State or Territory.
The jurisdictions which have adopted the model laws or updated their existing laws have adopted, as the threshold for undertaking authorised controlled operations, offences attracting a penalty of three years or more imprisonment so there is quite good alignment. Queensland has used seven years imprisonment rather than three years for the use of some of its powers but it has also agreed to recognise warrants and authorisations based on the lower thresholds issued in other States or Territories.
The Government is committed to fighting crime and cross-border organised crime. While the joint working party report was a response to the terrorism attacks in the USA, the bills provide powers to tackle not only terrorism but also other serious crimes and offences. These laws will strengthen the investigation of criminals and organised crime gangs who operate across State and Territory borders ensuring that Tasmania Police can pursue their investigations into Victoria or other jurisdictions should the need arise. The bill delivers on this commitment while also preserving Tasmania's safeguards to ensure, as far as possible, that the law continues to protect the rights and legitimate privacy of Tasmanians.
I have covered in general the thrust of the package of measures before us today and I would like now to turn to the Police Powers (Controlled Operations) Bill in a little more detail.
Controlled operations are essentially undercover operations which involve the infiltration of criminal gangs or association with suspected criminals for the purpose of gathering evidence that may lead to the identification and prosecution of a person for a criminal offence. As noted previously, law enforcement agencies have relied upon common law to engage in controlled operations and to have the evidence accumulated by that means accepted by the courts.
The common law in relation to undercover operations was to a large degree clarified by a High Court case in 1995, Ridgeway v R, in which the court held that there was a discretion to exclude on public policy grounds evidence of offences obtained by unlawful conduct on the part of the law enforcement officers. Some members of the High Court indicated that if law enforcement officers are going to engage in unlawful conduct in the course of investigations a legislative scheme should be established to give a level of legitimacy to their activities. The Ridgeway decision did not totally rule out the collection of evidence by covert operations involving unlawful activity on the part of police officers but the Controlled Operations Bill will put in place a legislative scheme without totally removing court powers to exclude evidence.
The bill describes a 'controlled operation' as an operation involving law enforcement officers investigating offences attracting a penalty of at least three years' imprisonment and in which the officers may commit criminal offences. It provides a scheme whereby the Commissioner of Police, the Deputy Commissioner or an assistant commissioner may, on application by an officer seeking to undertake a controlled operation, issue an authority to run the controlled operation.
To grant such authority the senior officer has to be provided with a range of information regarding the offences that have been or may be committed which the officers wish to investigate. The senior officer must then be satisfied that the nature and extent of the suspected criminal activity justifies the conduct of the controlled operation and that the unlawful conduct by the police officers will be limited to that necessary to conduct an effective operation . It also requires the senior officer to be satisfied that the risk of illicit goods not being recovered by police is minimised, that the operation will not involve inducing persons to commit offences and the conduct will not seriously endanger health and safety of any person, cause death or serious injury. It must also not involve sexual offences or result in unlawful loss or serious damage to property.
If an authority is issued, it must contain all the information required under clause 11 of the bill, including identifying the issuing officer, the officer managing the operation and the persons who may engage in what, but for the act, would otherwise be unlawful activities. It must include details of the criminal activity being investigated, the nature and quantity of illicit goods involved - if that is the type of crime being investigated - and if possible, the suspects and the nature of the activities the law enforcement officers may engage in during the operation. The authority is only valid for a maximum of three months - although it may be renewed under clause 13 for further periods - and can be issued subject to conditions imposed by the senior officer. The authority may be cancelled by the commissioner or the deputy or an assistant commissioner at their discretion - under clause 15 - or at the request of the officer in charge of the controlled operation.
Clause 18 of the bill is an important section as it gives protection against prosecution to the authorised participants in a controlled operation. The protection is limited to covering the conduct authorised in the senior officer's approval of the operation and excludes protection where the participant intentionally induces a person to commit an offence they would not have otherwise committed or where the conduct could result in death or serious injury or involved sexual offences.
Clause 19 provides a similar protection against personal liability for civil claims arising from the conduct and requires the law enforcement agency to indemnify the participants against that liability.
As I said previously, this bill is part of the national scheme for investigations which may need to be undertaken in more than one State or Territory. Clause 25 of the bill provides for the recognition of the corresponding provisions of the controlled operation laws of another State or Territory, so that an authority for a controlled operation issued in the other place will have the same effect and give the same protections in Tasmania, as would a locally issued authority if the interstate officers need to come into Tasmania to pursue their investigations.
The other States and Territories will extend the same protections to Tasmanian officers whose investigations take them out of Tasmania. As indicated, such mutual recognition is predicated on all jurisdictions having laws which are substantially the same so that the basis for the grant of authorities, the nature and scope of the authorities granted and protections offered are not incompatible with each other.
Part 4 of the bill requires the officer managing each authorised controlled operation to provide a detailed report to the chief officer about the operation, including the outcome. Law enforcement agencies are required to keep records of the authorisations issued, the activities undertaken and the outcomes achieved through the controlled operations.
As such significant powers are granted to the law enforcement agencies, there are consequential oversight provisions which require the chief officer to provide a report to the Minister for Justice and the Minister for Police on the operations of the act and the use of the powers under the act. The matters that are required to be included in the report will give the ministers a clear picture of the extent of the use of the powers and the effectiveness of the investigations which were undertaken using authorisations to carry out controlled operations.
The report provided to the Minister for Justice, subject to removal of any information that could endanger the safety of participants or others or could prejudice ongoing investigations or prosecutions, is to be tabled in both Houses of Parliament, as is the usual practice with annual reports.
The Police Powers (Controlled Operations) Bill 2006 confers on Tasmania Police and the Australian Crime Commission, whose brief is serious and organised crime, significant powers of investigation. While undercover operations are not necessarily illegal at present, this bill will give them a great deal more legitimacy and also give the officers participating in undercover operations a greater level of security in terms of their potential criminal or civil liability in respect of their activities while undercover. It will still allow the courts to accept or reject evidence obtained by these means and will not protect officers whose unlawful activities stray outside the parameters of their authorisation or the act.
In summary, there is a reasonable balance between the powers being granted and the controls over their authorisation and use. There are strict processes to obtain approval of controlled operations and those approvals can only be granted at the highest level and if the applications meet stringent criteria. The bill provides for the powers to be used only for more serious crimes and that the protections provided to officers are dependent on compliance with the conditions of the authorisation and the act. In addition, the reporting requirements will ensure that the relevant ministers and the Parliament are kept informed of the use and effectiveness of the powers that have been conferred on these officers.
This legislation will be an important addition to the range of powers available to police officers to investigate serious crime. I commend the bill to the House.
Mr MICHAEL HODGMAN (Denison) - As Her Majesty's shadow attorney-general for the State of Tasmania, and for and on behalf of Her Majesty's loyal Opposition, I have the honour to inform the Chamber that the Opposition unreservedly supports the four bills before the House - the Police Powers (Controlled Operations) Bill 2006, the Police Powers (Surveillance Devices) Bill 2006, the Police Powers (Assumed Identities) Bill 2006) and the Witness (Identity Protection) Bill 2006. As the Attorney-General has correctly said, we have agreed to a cognate debate to avoid needless repetition because we believe the passage of this legislation is important and it is also urgent.
These four voluminous bills form a package of legislation following agreement between National, State and Territory leaders at the April 2002 summit on terrorism and multijurisdictional crime. At that April 2002 meeting, agreement was reached on a number of reforms to enhance arrangements for dealing with terrorism and multijurisdictional crime. I repeat that all States and Territories agreed to introduce model laws for a national set of powers for cross- border investigations covering four main areas - namely controlled operations, surveillance devices, assumed identities and witness anonymity.
A joint working group on cross-border investigative powers was established by the Standing Committee of Attorneys-General and the Australasian Police Ministers Council to further the work of the summit and to develop model laws. New South Wales, Victoria and Queensland have each already enacted laws based on the model, and the Commonwealth has also legislated to cover controlled operations, assumed identities, and other matters in the package. Whilst it is acknowledged that the powers granted are extensive and cover a wide range of activities, the plain fact is that terrorism and multijurisdictional crime pose a continuing and major threat to our nation and to our State of Tasmania. This was confirmed at a meeting which I recently attended of all States and Territory shadow attorneys-general. We met in Sydney and the meeting was chaired by the Commonwealth Attorney-General, the Honourable Philip Ruddock MP. Without breaching the normal rules in relation to such meetings I can simply say that there was unanimity that all these powers were necessary and that any failure to implement them in full, and I emphasise in full, would cause serious problems, in our judgment, in the fight against terrorism and multijurisdictional crime.
I had the honour to be the minister for the Capital Territory in the Fraser government from 1980 to 1983 and therefore ministerially responsible for the national capital and for its security. We are staggered that the current ACT Stanhope Labor Government is trying to weaken the legislation. That really is quite extraordinary, bearing in mind that Canberra is our national capital and, as such, is a prime target for terrorists and for international criminals, as, sadly, was Washington, the national capital of the United States of America and, in more recent times, London, the national capital of the United Kingdom. It is extraordinary that the Stanhope Labor Government in the ACT is unashamedly trying to weaken the legislation. The ACT's Terrorism ( Extraordinary Temporary Powers) Bill of 2005 makes this point beyond doubt.
The London bombings of July 2005 showed the need to strengthen anti-terrorism legislation. The leaders of all States and self-governing Territories agreed to tighten legislation, as I said, at a Council of Australian Governments meeting in late September 2005. I am indebted to my colleague, the Honourable Bill Stefaniak, Leader of the Opposition in the ACT Legislative Assembly, who has provided me with this information. At the meeting of the Council of Australian Governments in late 2005, those leaders were briefed by Australia's three senior security advisers - Commissioner Keelty of the Australian Federal Police, Mr O'Sullivan of ASIO, and Mr Varghese from the Office of National Assessments.
Now, sadly, following that meeting, it would appear that the Chief Minister for the ACT , Mr Jon Stanhope, leaked confidential details of the draft legislation on the Internet in October 2005. Then he introduced the Terrorism (Extraordinary Temporary Powers) Bill 2005 into the ACT Legislative Assembly in December 2005. It gave the police in the Australian Capital Territory weaker powers than in all the other jurisdictions. Can you believe it? In Canberra, chosen by the people of Australia as our national capital, an insane Stanhope Labor Government is giving police weaker powers than in any other part of Australia.
Now I will argue with Attorneys-General in other States, including the Honourable Rob Hulls, Attorney-General for the State of Victoria, and the Attorney- General for New South Wales, whom I saw in action in the New South Wales Parliament quite recently. I will argue robustly with them, but neither of them suggested anything like what Mr Jon Stanhope, the Chief Minister, has done. I cannot believe it.
I want to say that, whilst I was the Minister for the Capital Territory, I had the power, under Commonwealth legislation, to overrule, veto and disallow ordinances passed by the then ACT House of Assembly, which has now been superseded by the Legislative Assembly. Although I was asked on several occasions to do so, I declined to do so because I respected the judgement of the ACT House of Assembly in those pre-self-government days. But today, if the Stanhope Labor Government, in its insanity, passes into law and retains in law the Terrorism (Extraordinary Temporary Powers) Bill 2005, I would, despite my commitment to the Federal system, strongly support the Federal Government. I think it would, with the support of the Federal Opposition, from what I have heard, pass legislation to override the insane Stanhope Labor legislation. Can I give you an example of how mad it is, Mr Deputy Speaker? Under this legislation which I hope will pass unanimously today, persons over the age of 16 years can be taken into custody. The ACT decided, 'Oh, no, that won't apply unless they are 18 years of age'. So what is the message to al-Qaeda and the other terrorist organisations? Recruit teenagers under the age of 18. They cannot be picked up in Canberra; they can be in Sydney, Melbourne, Hobart, Brisbane, Adelaide and Perth and Darwin, but they would not be touched in Canberra.
Is it not harking back to the days of Charles Dickens when he wrote how the worst criminals in depraved London in the nineteenth century got small children to do the stealing? Why? They were good at it, they were hard to catch. If they were caught, because of their tender years there was at least a chance they would not be hanged. So what is the message today from the Stanhope Labor Government in Canberra to al-Qaeda, Hamas and all the other terrorist organisations? 'Have a go in Australia if you want to, and here is a gilt-edged invitation. Come to Canberra because we have given our police less powers than they are given in every other part of Australia.'
I want to put on the record that the ACT Standing Committee on Legal Affairs examined this legislation of the insane Stanhope Labor Government earlier this year. Again, Commissioner Mick Keelty, for whom I have the highest regard and respect -
Mr McKim - Yes, he told the truth about a matter that your Prime Minister didn't want to hear at one stage, and he got stomped on by the Prime Minister.
Mr MICHAEL HODGMAN - I have the highest regard and respect for Commissioner Keelty because I am telling you, member for Franklin, that he is prepared to contradict persons in political power -
Mr McKim - And he was right.
Mr MICHAEL HODGMAN - regardless of their politics. Commissioner Keelty is a committed practising Christian. I know from his police career, and I knew him some years ago, that he is a capable and dedicated officer. This is what he said in answer to a question asked by Bill Stefaniak, MLA, as to whether it would be better if the New South Wales legislation, which had already passed the New South Wales Parliament, were adopted in the ACT. What did Commissioner Keelty say?
'It would be. That would be a way forward. I understand why there might be a difference on certain issues. But I think in this bill we do need to have consistency'.
And listen to this - if these words do not chill you, I can assure you they chilled me -
'If ever I have seen people with the intent and motivation and ability to do something catastrophic, it is the terrorists.'
There is Australia's most senior, most experienced police officer saying to the people of Australia, 'If ever I have seen people with the intent and motivation and ability to do something catastrophic, it is the terrorists'. In fact, the legal affairs committee of the ACT Legislative Assembly recommended in February this year that the legislation in the Territory should be strengthened - not weakened, but strengthened. However, amendments to strengthen the legislation were rejected by the insane Stanhope Labor Government in the ACT. The Federal Government, not surprisingly, expressed grave concerns in July 2006 about the ACT having weaker legislation than any other jurisdiction.
Of particular concern is the ACT having a higher minimum-age threshold of 18 as compared with 16 everywhere else, and the threshold tests the police need in the ACT before a would-be terrorist would be detained, or could be detained, are more difficult than the tests interstate and at the Commonwealth level. So what has this idiot, insane, Stanhope Labor government done? Firstly, none of the powers given to the police in relation to 16- and 17-year-old terrorists are available to the police in Canberra. Secondly, the tests that the ACT police and the National Crimes Commission have to apply in Canberra before they can exercise their powers are much stiffer than they are in the rest of Australia.
I just note in passing the presence in the chamber of Tasmania's newest minister, the Honourable Michelle O'Byrne. I congratulate her and remember her from her time in Federal Parliament. She will know, and I have just made the comment, that for reasons that completely escape me the provisions of this legislation, which has been passed right around Australia and which your government is bringing in and which we are supporting, will apply everywhere in Australia except in Canberra where they have been weakened and watered down.
Mr Llewellyn - Were you the minister for lawnmowing for a couple of years?
Mr MICHAEL HODGMAN - I had the honour, for three years, to be the Minister for the Capital Territory. You really are a silly little person; you are getting senile, David.
Mr DEPUTY SPEAKER - Order.
Mr MICHAEL HODGMAN - I am very proud of my experience and I am proud of the fact that I am still one of Her Majesty's executive councillors for the Commonwealth of Australia - not on call, but still available. That is something that has never happened to you. You knocked on the door of Canberra time after time after time and did not get elected, but I did not bear you any ill will.
Mr Llewellyn - They will never call you.
Mr MICHAEL HODGMAN - David, you are not improving.
When the Liberals in the Australian Capital Territory achieve government, which is not far off - there is going to be a bit of a race actually as to which will be the first: the Hodgman Liberal government here in Tasmania or the Liberal government in the ACT - they have made a commitment that they will strengthen the ACT legislation in order to ensure consistency with other States and Territories. In the meantime I want to say that the Federal Government should continue its efforts to ensure that Australia has consistently strong counter-terrorism legislation. The ACT has already been the subject of a planned terrorist act, with Mr Jack Roche being sentenced to nine years jail in 2004 for plotting with Jemiah Islamiah and al-Qaeda to blow up the Israeli embassy.
Just before the debate started, my colleague and friend, the Greens justice spokesman, Mr Nick McKim, approached me and indicated to me for the first time that he would be moving an amendment which effectively will call for the bill to be withdrawn and redrafted to correct certain matters that he has raised. I will listen carefully to him. I am putting it on the record pretty firmly because I will listen carefully to what you have to say and I will report to my colleagues. If I have to make a decision in the chamber I have the advantage that the Leader of Opposition Business, the Honourable Sue Napier, is present with me, but it will be a considered response.
Mr McKim - Thank you, I appreciate that.
Mr MICHAEL HODGMAN - I will listen very carefully but you would not need me to tell you that I am very strongly supportive, and indeed the Opposition are very strongly supportive collectively, of this legislation.
There are two other courtesies that I want to pass on. Firstly, to the Attorney-General himself, thank you for the way in which you made your staff available to the Opposition collectively and to myself as Her Majesty's shadow attorney-general. I wanted to mention specifically the names of the four who briefed me and who are in the Chamber, but I just want to say that I have been informed by the leader of the group that it is not appropriate to mention names in the Hansard. So I wish to thank them as a group and tell them collectively, as I told them again in Launceston when they were up there for the three days when we thought the bills would be coming on, that I rate that as one of the best briefings that I have ever attended in a fairly long and fairly extensive parliamentary career. I appreciated their frankness in the way in which they answered. The second matter is the question of accountability.
Now, having put my colours to the mast in supporting legislation, which to quote the Right Honourable Sir Winston Churchill, 'safeguards the defence of the nation', I too am interested in the accountability provisions. I want to make this comment because it should be put on the record. I think the accountability provisions proposed in this bill are pretty good. I am not saying that they are perfect but I am saying that I think they are pretty good. The situation is that there will be a requirement on the chief officer to provide a report to the Minister for Justice and also to the Minister for Police on the operations of the act and the use of the powers under the act. So it is not one minister, it is two. The Minister for Justice in the State of Tasmania is Her Majesty's Attorney-General for the State of Tasmania, the Honourable Steve Kons MHA, and the Minister for Police is the Honourable David Llewellyn MHA. The Honourable Steve Kons MHA is the Deputy Premier of the State of Tasmania and the Honourable David Llewellyn MHA has been Deputy Premier not once but on two or maybe three separate occasions, and has been acting Premier. So both ministers have achieved very high office. They will ensure that the matters that are required to be included in the report, and I am quoting from the second reading speech, will give them -
'a clear picture of the extent of the abuse of the powers and the effectiveness of the investigations which were undertaken using authorisations to carry out controlled operations.'
So that is two things the ministers, I am certain, regardless of who is in government, are going to ensure. One, we want a clear picture of the extent of the use of the powers. Two, we want to know the effectiveness of the investigations which were undertaken using authorisations to carry out controlled operations. In other words, how much power was used and did it work? But look what then follows. The report provide to the Minister for Justice - and I agree with this - subject to removal of any information that could endanger the safety of participants or others or could prejudice ongoing investigations or prosecutions, is to be tabled in both Houses of Parliament, as is the usual practice with annual reports.
Mr McKim - Who writes the reports?
Mr MICHAEL HODGMAN - With great respect I will listen very carefully to you because I know what your criticism is going to be. I want to say, rightly or wrongly, that the 25 members of the House of Assembly and the 15 members of the Legislative Council, or any one of them can get up in the House and debate, at an appropriate time, the report provided to the Minister for Justice. It does not say whether the report to the Minister for Police is also going to be tabled. I would have thought, Attorney, but I might be wrong, that the report to the Minister for Justice would be the broader of the two reports. If I have misread it, is the report -
Mr Kons - The same.
Mr MICHAEL HODGMAN - It will be tabled?
Mr McKim - It's the same report.
Mr MICHAEL HODGMAN - It is the same report, thank you. The Police Powers (Controlled Operations) Bill 2006 confers on Tasmania Police and the Australian Crime Commission, whose brief is serious and organised crime, significant powers of investigation, and the report which will be tabled will cover both areas . I think that is pretty good. It means that any member of the Parliament - Labor, Liberal, Greens or Independent - can have a debate instigated in the Parliament. Could I simply say, without naming names, that there are one or two government members in another place who have shown that they are quite prepared to stand up and express a view. I do not believe that, if something was going on wrongly, Labor members would be terrorised into silence.
Mr McKim - I don't know about that.
Mr MICHAEL HODGMAN - You have to be fair. I know you are to the left of the Labor Party, and that is fair enough, but you have to be fair here.
Mr McKim - It wouldn't be hard down here.
Mr MICHAEL HODGMAN - I don't know, we have a left-wing premier. We have maintained the balance.
Mr McKim - I beg your pardon?
Government members laughing.
Mr MICHAEL HODGMAN - Under the previous regime we had a right-wing premier and a left-wing deputy, Bryan Green. Now we have the same right-wing premier and a new left-wing deputy, Steve Kons. Having said that, I am amazed that you are so lacking in Christian charity, or any charity for that matter -
Mr McKim - I'm not a Christian.
Mr MICHAEL HODGMAN - in that you did not acknowledge what Jack Hill the blind miner would know, that there are a couple of members in the upper House who are members of the Labor Party and who have the courage of their convictions to stand up and speak out.
The final point I want to make is the protection of the courts. I like the wording in the minister's second reading speech, particularly dealing with the law in relation to undercover operations, which was to a large extent clarified by the High Court of Australia in the case of Ridgeway back in 1995. I am a great believer in the protection that the courts afford to the citizens of Australia and the State of Tasmania. I believe that the great protector of them all is the royal prerogative writ, whereby someone who has been unjustly dealt with can still go to the court and say, 'I have been unfairly treated'. It was that great Tasmanian case, the Queen v Heatley, ex parte the Racing and Gaming Commission, where the High Court of Australia laid down the fundamental principles of natural justice to which all of us are entitled to have both oversight and protection. I am quite certain, contrary to the squeals that we will hear shortly, that if somebody is unfairly treated, access will be had to the courts. I do not stay to go into the case - listen carefully, member for Franklin -
Mr McKim - I always do listen to you.
Mr MICHAEL HODGMAN - Thank you. There has been a recent case in the State of Victoria where a person convicted and sentenced to a lengthy term of imprisonment has had his conviction quashed. Whether you agree or disagree with the decision of the court, the point I am making is that the full court of the Supreme Court of Victoria quashed a conviction under this type of legislation.
Let no-one in Australia underwrite the great protection that is afforded to the people of Australia who have done the right thing by the courts of this land . It is part of our national birthright; the greatest privilege in the world that we Australians are proud and fortunate enough to live in a parliamentary democracy under the rule of law.
We are here in the Parliament; the Executive is over there; the Supreme Court of Tasmania is over there at Salamanca Place, and the separation of powers gives the people of this State protection, so that if the Executive or the Parliament oversteps its mark, the Supreme Court of Tasmania, the second-oldest Supreme Court in the Commonwealth of Australia, is there to protect them. It has done so in the past and it will do so in the future, if necessary.
So unreservedly, and without in any way pre-empting the Greens justice spokesman, to whom I will give very careful consideration in his submissions, Her Majesty's loyal Opposition, the State Liberals, strongly support all four bills.
Mr McKIM (Franklin) - Mr Deputy Speaker, I begin my contribution by repeating something which was mentioned by the member who just resumed his seat, and that is to thank the departmental officers who briefed me on this matter. It was, as the previous speaker said, an excellent briefing, and I am indebted to both the officers from the department and from Tasmania Police who briefed me, and also to the Attorney for facilitating that.
As I indicated to those people at the briefing, and as I am quite happy to indicate now, we are not at all philosophically opposed to the intent behind these bills. However, we do have, as I have flagged with both the Attorney and the shadow attorney now, some concerns relating to the oversight mechanisms which this bill proposes to establish, and I will speak to those concerns in some detail later in my contribution.
I did want to make reference early in my contribution to a couple of matters that were raised by the shadow attorney-general, who I know will listen faithfully to what I have to say. He mentioned Winston Churchill, and I am a bit of a fan of Mr Churchill's parliamentary ambience, if you like. I have laughed out loud a number of times at some of his better interjections. Perhaps instead of saying his interjections were, on occasions, 'Keatingesque', it should be the other way round and I should say that Paul Keating's interjections, of which I am also a fan on occasions, were 'Churchillesque' in their quality, because Winston Churchill came up with a few crackers, in my view - a few absolute classics.
I think the member related that Mr Churchill said at one stage that he thought the primary responsibility of parliamentarians was to safeguard the defence of the nation, and in the context of that statement I will tell the Parliament what I think the biggest security threat to this nation is - climate change. And I am not alone.
Mr Llewellyn - What about population?
Mr McKIM - Well, perhaps I should say the ramifications of climate change. For the edification of members, there is a Pentagon report, publicly available, which agrees with me. This Pentagon report was to the President of the United States from a very senior Pentagon general, who said that in his view the ramifications of climate change were the biggest security threat to the United States. He said that was a far bigger security threat to the United States than terrorism.
Now, we have heard a lot on terrorism from the incumbent governments in recent times, because quite frankly I think it suits their political agenda to ramp up the fear in the community. I think that John Howard, particularly, is a past master at maintaining that level of fear and concern in relation to terrorism bubbling along in our communities. I want to place clearly on the record that I am not saying that we do not need to address terrorism; clearly we do need to address it. It is a major security threat to this country and therefore by implication to our State. However, I agree with the Pentagon report which said that, in the view of that particular general, the biggest threat to the security of the United States was not terrorism but the ramifications of climate change. I believe that comment contained in that report can accurately be transposed to the Australian context, and that in the long term we will face immense security challenges because of the effects of climate change, particularly the displacement of billions of human beings in our region of the planet. Believe me, they are going to come looking for somewhere to live.
Mr Llewellyn - Yes, that's right.
Mr McKIM - Yes, that is right, Minister. They are going to come looking for somewhere to live and I reckon Australia is going to look pretty attractive to a lot of them. I think -
Mr Llewellyn - There are some 22 million people on Taiwan, and it's half the size of Tasmania.
Mr McKIM - Yes, Minister, you are quite right, and there are Pacific island nations that are in danger of disappearing entirely under the Pacific Ocean as a result of climate change. While we have had rhetoric and draconian legislation passed by both the Federal Parliament and this Parliament in Tasmania as a terrorism response, we have had hopelessly inadequate responses to the challenges facing us in relation to climate change. There have been hopelessly inadequate responses from Canberra, who are now scrambling to catch up with public opinion.
We have had recently an announcement of $75 million government assistance to construct a solar-powered power station on the mainland. I welcome that, but just to put it in context - and I know my colleagues in the Chamber from the Labor Party will understand what I am saying - compare the $75 million assistance for the solar power station with the $60 million John Howard spent advertising WorkChoices. He spent $60 million advertising this awful system he has implemented, an ideologically-driven attack on Australia's workers on behalf of his mates in the big end of business; $60 million just to advertise it - unsuccessfully, I might add - to try to convince Australian people that it was a good idea. As I said, it was a highly unsuccessful advertising campaign because it is hard to make a silk purse out of a sow's ear.
However, that puts the $75 million contribution into solar energy into very clear context - a woefully inadequate response to the challenges of climate change from Canberra. We will pay for that, not only environmentally, socially and economically, but in security terms as well. Mark my words, we will pay for that, or our children and their children will pay for that going forward. Yet this Federal Government is prepared to spend $60 million advertising or trying to convince Australian people that WorkChoices is a good thing, which it clearly is not.
Also unfortunately, we have seen a woefully inadequate response to climate change from the State Government. Their Draft Climate Change Strategy is a minimalist, do-nothing approach -
Mr Llewellyn - Well, put some input into it.
Mr McKIM - By interjection, the minister invites me to submit. Minister, I have already placed it clearly on the record but I am happy to do so again today : my word, I will submit to that draft report because I am very upset by it, as I have indicated publicly and in this Parliament. I will submit a comprehensive submission, and I will dedicate a significant part of my time and energy and that of those people in my office to a submission. But, Minister, I understand we still have about two-and-a-half months to go. I have not begun it yet, but I shortly will, so I look forward to that and I know you will read my response closely.
Mr Llewellyn - I will indeed.
Mr McKIM - Mr Deputy Speaker, to the bills at hand. I acknowledge that we are debating these bills as a cognate package, and I am happy to do so; however, it is important to note that these bills propose the granting of very serious powers to our police. Effectively, it sanctions police officers breaking the law in the proper pursuit of their responsibilities. I will retract that and say that it indemnifies police officers from breaking the law in certain circumstances in the pursuit of their responsibilities. Can I indicate again that we are not philosophically opposed to that. I acknowledge that there are circumstances whereby, during the proper conducting of an investigation, particularly undercover operations, it may be necessary, for the greater good, for police officers to breach the law in order bring about a result in a more significant operation. Clearly an example of that, and I am being purely hypothetical here, is the investigation of a drug ring. In order to infiltrate a very serious criminal concern, a police officer may have to breach a law relating to the purchase of a small amount of drugs
Mr Llewellyn - They may have to be exempted from breaching that.
Mr McKIM - Thank you, Minister, I appreciate that. I am glad to see you in here. If I have misrepresented that then I retract and accept that your words are the correct interpretation. However, the point that I am trying to make in this part of my contribution is that we are not philosophically opposed to that happening, but it is important to acknowledge that they are very serious powers that these bills seek to deliver to our police.
Mr Michael Hodgman - Extensive and significant.
Mr McKIM - They are indeed extensive and significant, as the shadow attorney-general says. This suite of bills, as members are aware, is an outcome of the November 2003 Standing Committee of Attorneys-General. I am sorry but I find it hard to refer to it as SCAG. However, they are an outcome of the November 2003 Standing Committee of Attorneys-General and the Australasian Police Ministers Council joint working group on national investigation powers. According to the report produced by the joint working group, and I quote:
'The creation of a national set of investigative powers is intended to facilitate seamless law enforcement across jurisdictions.'
Again, we are not philosophically opposed to that intent. The report also states and I quote,
'In order to investigate crime, police must be given effective powers.'
Again, I indicate I am in support of that statement. We are not opposed to that statement. The report goes on to refer at some length to accountability and oversight provisions. It says and I quote, and I should say that this sentence follows on from the one that I previously quoted,
'However, these powers must be balanced against the rights of individuals, such as the right to privacy and the right to a fair trial. Setting out cross- border investigation powers in legislation provides clear parameters and provides transparency and certainty about the extent of those powers. It also provides ...'
and this is crucial:
'... for a consistent minimum level of accountability and scrutiny for powers which are exercised across different jurisdictions.'
That last point is actually repeated in the report. It says, and I quote,
'The standards prescribed in the model bills for the authorisation and accountability processes should be understood to be minimum standards.'
My contention is that the bills which are currently before this House do not satisfy that test. They do not reflect the minimum standards set out in the model bills, which were agreed through the process that I previously mentioned. Before I go to the specifics of my concern with these bills, I want to inform the House of the measures that have been taken in other jurisdictions, notably the jurisdiction of Queensland. Queensland has, for edification of members, significantly exceeded the accountability and reporting mechanisms established by the joint working group in the model law. I quote from the second reading speech of the Queensland Attorney-General, the Honourable R J Welford, who said, and I quote:
'The national model laws set a minimum standard. However, our government is committed to maintaining Queensland's existing high standards where these exceed the model law minimum standards and these are attained in the bill'.
He goes on to say:
'The combination of existing front-end safeguards and the enhanced post-operational requirements sets a new benchmark in accountability'.
Now that may be the case in Queensland but I do not believe it is the case in the bills before this House today. I do not believe that the bills before this House today reflect the minimum standards agreed to in the process and they certainly do not exceed them. Before I go into that contention in detail I should note that there are obviously differing pre-existing statutory authorities in different Australian States. I want to be clear about what we do not have in Tasmania in relation to many other jurisdictions in this country. Firstly we do not have a standing anticorruption commission in this State, and that is a shame. I am well on the record as saying I think we need one; the Liberal Party is also well on the record, and I congratulate them for suggesting that we do need a standing anticorruption body.
Mr Michael Hodgman - I moved a motion for that three years ago.
Mr McKIM - You did and I acknowledge that is a longstanding view. I do not think you have held it for quite as long as the Greens, but that is okay. It is not my intention to make any further reflection on that. I just say that most other jurisdictions in this country do have a standing anticorruption authority, an ICAC-style authority. It is the CJC, I believe, in Queensland - the Criminal Justice Commission. It generally has a different name in different jurisdictions. However, we do not have one in Tasmania and boy, do we need one!
Mr Michael Hodgman - Hear, hear.
Mr McKIM - Also in Tasmania - and I do not think I will get agreement from the Liberal Party on this but I may - we do not have an external police review body. In other words, when a complaint is currently made against police in Tasmania, the police investigate that complaint. I do not think that satisfies minimum standards because of the concept of regulatory capture. If you google 'regulatory capture' you will see what it actually is, but in a nutshell the theory of regulatory capture is that the regulating authority must have separation and complete independence from the body that it seeks to regulate.
Mr Michael Hodgman - I think the Ombudsman will still look at these matters.
Mr McKIM - We will come to the Ombudsman in a minute but I do not know that there is an appeal provision -
Mr Llewellyn - Is this a bit like metes and bounds?
Mr McKIM - No, it is not like metes and bounds and I really do not think we should go back to that discussion today. The Police minister is in here so perhaps he could inform me whether a decision of the police external review body is appealable to the Ombudsman's office or not because I would be interested to know the answer. I am not sure that it is but I do not know for a fact. It would be interesting to know because I believe that it should be appealable to the Ombudsman.
I also acknowledge that, and this is relevant to the Surveillance Devices Bill, there is a public interest monitor in Queensland, which is another example of an existing authority in that jurisdiction and which enables Queensland to significantly exceed the accountability mechanisms agreed by the SCAG and Australasian Police Ministers Council joint working group on national investigation powers.
The main problem I have with the oversight and accountability mechanisms which are proposed by this bill is that the national process required there to be an oversight mechanism, and it did set a minimum standard for that oversight mechanism. I have here the Cross-Border Investigative Powers for Law Enforcement report from the joint working group, dated November 2003. It says, and I quote:
'The discussion paper proposed independent oversight of controlled operations by a body such as the Ombudsman. Each jurisdiction will be able to determine which body will have a responsibility for oversight within that jurisdiction or provide a different accountability regime so long as the regime provides at least a comparable standard of scrutiny.'
That is the key. I acknowledge that it does give latitude for there to be a different accountability regime but it does mandate that the regime, if it is a different accountability regime, must be of a comparable standard to a body such as an Ombudsman.
I want to read from the second reading speech in Victoria. This was from the Attorney-General, the Honourable Rob Hulls. He made this contribution during the second reading speech of the Crimes (Controlled Operations) Bill, which is the Victorian equivalent of the bill which we are currently debating. He made his contribution on 1 April 2004 and he said:
'The bill creates an oversight role for the Victorian 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 the activities of the law enforcement agencies and the extent to which controlled operations conducted during the year complied with the legislation.
As well, Victoria Police will be required to provide a six-monthly report to the Ombudsman on the number of authorities issued, varied, cancelled and the types of activities engaged in. The Commonwealth Ombudsman will undertake the same oversight role for the Australian Crime Commission.'
So you have a situation whereby the Victorian and the Commonwealth legislation will require the Ombudsman to carry out that oversight responsibility.
I will go very briefly in the two minutes before lunch to what the Tasmanian bill proposes to do, because it does not propose the Ombudsman as an oversight or accountability body -
Mr Michael Hodgman - It proposes the Parliament.
Mr McKIM - With respect, the member for Denison, Mr Hodgman, interjects that it proposes this Parliament, but the crucial point is - who writes the report that will be tabled in the Parliament? Who writes the report under the Tasmanian proposed bill? The chief officer; the police report on themselves. It is regulatory capture. The Ombudsman is an independent authority, completely independent of Tasmania Police. Surely if we wanted adequate oversight of these very serious powers -
Sitting suspended from 1 p.m. to 2.30 p.m.
Mr McKIM - Mr Deputy Speaker, before the lunch break intervened I was talking about the necessity for us, as public policy makers, to provide adequate oversight of the very serious powers which these bills seek to bestow on police officers.
Can I pause here and make it very clear that nothing that I have said today is intended to have a whack in any way at Tasmania Police and I really hope that it is not misconstrued. I have no reason to think that it would be by anyone but I am certainly not standing up here today and casting any aspersions on any member of Tasmania Police. I happen to have a very high degree of respect for that organisation and they obviously provide a very necessary service to the community. If we did not have that service we would be in some serious difficulty as a society. So I want to be clear that the comments I am making here today are in relation to the necessity to provide oversight of the serious powers which these bills seek to provide for Tasmania Police - not, as I said, to have a whack at Tasmania Police at all.
Before lunch I had just begun going to the differences between the model law, which flows from the national agreement, and State law and I will now try and encapsulate those as I understand them. If at any stage the minister thinks I have summarised any aspect incorrectly I am sure he will let me know when he comes to make his contribution in response to my comments.
The model law certainly requires independent oversight of controlled operations by a body such as the Ombudsman. The model law requires six-monthly reports by the chief officer of a law enforcement body agency to an independent body.
Mr Kons - We have not chosen the independent body yet.
Mr McKIM - No, I know you have not chosen the independent body and we might talk a little about that during the committee stage, Minister. If you are prepared to state here that you will choose the Ombudsman that would take care of a lot of my concerns. I would still be happier to see it in the legislation because -
Mr Kons - I just want to have a look at resourcing and those sorts of issues before we actually nominate -
Mr McKIM - The minister, by interjection, is potentially satisfying some of my concerns, but perhaps if I just put my concerns on the record and you will get your opportunity.
Mr Kons - I will make you really happy.
Mr McKIM - Oh well, maybe you will, Minister; I hope that you do. Not for the first time, I might add. You made me pretty happy when I asked you in Budget Estimates whether you thought there was anything commercial-in-confidence in relation to the secret deals signed between Bryan Green and John White and you said 'No'. You made me pretty happy then, so perhaps you can do that again, Minister.
Mr DEPUTY SPEAKER - Order. I would ask that disorderly contributions cease and the honourable member who now has the floor continue with his second reading contribution.
Mr McKIM - They are highly disorderly at times, my colleagues, I agree.
Mr DEPUTY SPEAKER - No, I did not say that.
Mr McKIM - Mr Deputy Speaker, this is a serious issue and I am slightly encouraged by the interjections of the Deputy Premier and minister responsible for these bills.
However, as I was saying, the model law does require six-monthly reports, that is twice a year, and reports by the chief officer to an independent body. In the case of the Victorian legislation that body is the Ombudsman. The model law also requires full and free inspection of records of law enforcement agencies by an independent body at any reasonable time
I will now indicate what I understand the proposals before the House currently entail and then I will go on to what I believe the differences are. The Tasmanian law, the Bill before the House, requires annual reports, that is one every 12 months by the chief officer, in this case the Commissioner of Police, to both the minister who has carriage of these bills and the Minister for Police and Emergency Services. I acknowledge that those reports which, as the minister has made clear by interjection to the member for Denison, Mr Hodgman, are the same report. So it is the same report that goes to two different places and then one of those reports is tabled, having had information potentially removed from it that may compromise law enforcement operation.
The Tasmanian law has full and free inspection of records of law enforcement agencies by a person appointed by the minister as an inspection entity. That is not yet the Ombudsman in Tasmania, but I acknowledge that it may be, if the minister decides that he wants to appoint the Ombudsman, subject to that part of the bill. I believe the Tasmanian law requires a report by the entity to the minister, but I look forward to the minister's clarification of that.
I want to here speak of the requirements to appoint an independent agency, and I will just find that section of the bill -
Mr Kons - Clause 31.
Mr McKIM - Thank you - okay, I will withdraw that comment; that is fine.
So as I understand the major differences, firstly, the timing of the reports is different. The model law requires two reports per year, as I understand it, once every six months, whereas the bill before the House requires only one report per year. So that is a clear decrease in oversight, in my view, in that you are not getting reports as regularly.
I want to clarify with you, Minister, that the inspection entity in Tasmania does not appear to me to necessarily receive the chief officer's report. I accept that it does have inspection powers, but my reading of this bill is that the reports of the chief officer go directly to the ministers and are not reported upon by an independent body, and that is the crux of my concerns about oversight. That is the major area in which I believe this bill fails to comply with the model law and I would welcome a response from the minister on that point.
As I have flagged with the shadow attorney-general and the minister, it is my intention to move very shortly that the bill be withdrawn and redrafted. I acknowledge that the minister has not had an opportunity to respond to my comments because, of course, the forms of the House do not permit me to allow the minister to respond to my comments and then reserve the right to move on the second reading debate that the bill be withdrawn and redrafted. So what I intend to do, without being gung-ho about it in any way, is to move an amendment that the bill be withdrawn and redrafted to reflect accountability and oversight mechanisms in the model law, and that will then create a debate about those provisions, within which the minister can respond to the concerns I have raised.
Before I finish my second reading contribution, I did want to note briefly, in response to the shadow attorney-general, that I am not sure his colleagues in Victoria and New South Wales would be happy that you have conceded defeat in those elections to the Labor Party. You certainly did that, in my view, before lunch. I do not recall the name of the Liberal leaders in those jurisdictions - I do not think they have very -
Mr Michael Hodgman - Ted Baillieu's going to be a brilliant premier.
Mr McKIM - Premier Ted Baillieu - is he in Victoria?
Mr Michael Hodgman - Yes.
Mr McKIM - He will not be Premier after this month's election. Nothing is surer than Steve Bracks retaining power in Victoria.
Mr Michael Hodgman - Premier Peter Debnam is well on the way to victory in New South Wales.
Mr McKIM - Yes, household names, both of those. But, as I say, I am not sure that either Messrs Debnam or Baillieu would be happy that their colleague in this House, the shadow attorney-general, Michael Hodgman QC MHA, has conceded defeat -
Mr Michael Hodgman - I didn't. Absolute rubbish!
Mr McKIM - and written off their chances. I actually think it is -
Mr Michael Hodgman - I tell you one thing, we'll never see a Greens State Liberal government, that's for sure.
Mr McKIM - Well, time will tell. I am not quite sure what the member was trying to say there but -
Mr Michael Hodgman - You'll never see a Greens State government in this country.
Mr McKIM - I am not so sure about that - never is a long time.
Mr Michael Hodgman - You're a very patient young man.
Mr McKIM - I note for the record that we are protected by privilege in this place, which is a good thing because a close inspection of the Electoral Act would have you gentlemen putting what you were just waving around straight back in your pockets.
Mr Michael Hodgman - No, under Premier Lennon we can bet with Betfair on elections - it's true.
Mr Cox - It is true.
Mr Michael Hodgman - You can even bet on the election of the Pope.
Mr McKIM - That is interesting. I might have to give Mr Taylor a call and see what he has to say about that. Anyway, I do not want to get sidetracked.
Mr Cox - You started it!
Mr McKIM - As I say, I do want to be sidetracked by interjections from other members, but I raise these matters in all seriousness, because when we are granting powers as wide-ranging and as potentially serious as these, oversight in accountability mechanisms is an important part of the legislation. I acknowledge there are some oversight and accountability mechanisms contained -
Mr Michael Hodgman - Why isn't the Parliament good enough?
Mr McKIM - By interjection, the member asks why the Parliament is not good enough. The Parliament is the end repository, if I can use that term, for the reports under both what is proposed by this bill and the national model. I accept that that is the case. The difference, Mr Hodgman, is that, certainly under the Victorian legislation, and, as I understand it, under the national model, the Parliament will also receive a report from the Ombudsman on the report from the chief officer of the police.
What you get there is an independent oversight body, hopefully with adequate resources, to do that, to conduct a report into that report that is provided by the chief police officer. What you will get in the Tasmanian model is a parliament which has nowhere near enough people in it - and you agree with that, I know you do - vastly stressed and stretched for resources, with vastly under-resourced opposition parties in the Parliament trying to cover a range of portfolio areas. Quite frankly, with the resources that my party has and the resources that I know your party has, I do not think we can fulfil adequately the range of responsibilities that fall to us as opposition members and I am worried that in this particular case that will mean that the investigations or otherwise that we may make into that report will not be as wide-ranging as those that may be made by the Ombudsman. In the national model we will get the Ombudsman's report into the report of the chief officer, so that is the difference.
I, for one, would like to see that occur in Tasmania. That is my understanding of what will occur in one or more other jurisdictions in this country and I really hope that the Parliament will listen to my urgings on this. Mr Deputy Speaker, I have provided a copy of this to both the shadow and the minister. I move -
That the motion be amended by omitting all words after 'that' and inserting the following words: 'the bill be withdrawn and redrafted to incorporate the oversight and accountability mechanisms outlined in the national joint working group's November 2003 report into cross-border investigative powers for law enforcement'.
I have made my substantive arguments in the second reading debate. I think the minister appeared to be listening closely and I thank him for that. I do not intend to waste the time of the Parliament by rehashing all my arguments, but I do look forward to hearing the minister's contribution and whether or not I am incorrect in any of my assessments of what this bill seeks to do vis-a-vis the model law which flowed from the national process. I also look forward, as always, to the contribution of my colleague, the member for Denison, Mr Michael Hodgman QC MHA. I will have a few minutes left on my second reading contribution once this motion is completed and believe I will be able to respond to those comments in that period.
Mr KONS (Braddon - Minister for Justice and Workplace Relations) - We will not be supporting the amendment. The advice I have received regarding the inspection entity that you were asking about is this: we have not put it in there is because that will be an issue concerning the funding arrangements for a body. I would rather have a look at those and see whether the Ombudsman is the appropriate body that we can fund adequately. I would rather do that than give it to a body that may not have the resources to adequately do the job entrusted to it. I take your concern very seriously about appointing an appropriate body.
The other issue you raised was about the number of reports a year and how the other States do two reports. The advice I have received is that the volume of work for the Tasmanian organisations would not be as hefty as it is on the mainland. It would be much less, so if it escalates significantly there will be an opportunity to look at it in future. We want to make sure that this legislation is enacted and goes through the appropriate processes and that we appoint a body that is adequately resourced. There are certain restraints on the Ombudsman's organisation and I want to make sure that their investigative powers are there and that there is a genuine effort to ensure that the legislation is complied with and people's rights are not wiped out. We will have a look at those issues at a future point in time.
Mr MICHAEL HODGMAN (Denison) - Her Majesty's loyal Opposition has listened very carefully to the amendment moved by the member for Franklin, Mr Nick McKim, the Greens' spokesman for justice. I want to assure him and the Greens that we have not only listened to what he said but we have considered it. I have had the opportunity of discussing it with a number of my colleagues during the lunch suspension. Effectively, if the amendment were to be agreed to, the four bills would be withdrawn, they would then have to be redrafted to incorporate the oversight and accountability mechanisms outlined in the national joint working group's November 2003 report into cross-border investigative powers for law enforcement. I have taken care to note those accountability mechanisms and in my opinion they have been accurately reported to the House by the member for Franklin, Mr McKim.
I repeat what I said before - and I do not want to delay the House but it is important to put it on the record - I believe that the oversight and accountability mechanisms in the bill brought into the House by Her Majesty's Attorney-General for the State of Tasmania, Steve Kons MHA, are very good. Two ministers of the Crown - the Minister for Justice and Workplace Relations and the Minister for Police and Emergency Management - are entitled to demand from the chief officer a report which will give them 'a clear picture of the extent of the use of the powers'. That is point one. And point two, the effectiveness of the investigations which were undertaken using authorisation to carry out controlled operations, is effectively an audit by the ministers. I do not think ministers will be impressed if they get a Sir Humphrey-type report or a Lady Humphrey-type report, because they will know full well that the report has to be tabled in the Parliament. It only takes one member out of 40 in the Tasmanian Parliament to trigger a whole debate. How far the debate goes and what results from it is a matter that the Parliament itself will determine.
With great respect to our Ombudsman, Mr Simon Allston, whom I admire and like very much - I know him very well, I know what a fantastic job he is doing, while under-resourced - I have to say that I do not think he would wish it to be put that his overview of the report is necessary to enable the Parliament to have a full appreciation of it. I did not hear - and you may tell me or the Attorney will tell me in his reply - whether I was right that there is still a review to the Ombudsman in relation to police matters. I think there is after there has been an internal investigation.
Mr Kons - I am advised there is.
Mr MICHAEL HODGMAN - So my understanding was correct. If John Smith alleges - let us just put it baldly - that there was an abuse of the powers in relation to him under these four acts, my understanding is at first instance the complaint goes through the Commissioner of Police to the internal investigations division. If they say, 'No go, Joe', my understanding is he can then say, 'Right. I'm not satisfied, I'm effectively going to ask the Ombudsman to review it'. My understanding is that the Ombudsman has power to call for all persons and papers required and to look at it.
There is another thing that my friend from Franklin continues to overlook, and that is the prerogative writ. I put it on the record because it is very important that people understand how crucial the prerogative writ is in defending the rights and liberties of Australian citizens. In World War II, two Italian brothers named Alcorso, permanent residents in Australia, were locked up under the national security regulations. They protested. They said, 'We are loyal Australians, residents. We came to Australia fleeing Mussolini and the fascist dictatorship in Italy. We're loyal.' They took out a prerogative writ, the King's writ against their detention, and they won. The Alcorso brothers were not only released from custody because of the King's writ, but they came to Tasmania and they established a company called Silk and Textiles which became a major producer of fine quality textiles and which put Tasmania on the map. Then in latter years one of the brothers established the magnificent Moorilla estate vineyard.
When I had debates with Mr Claudio Alcorso, who I liked very much, on whether Australia should become a republic, I used to say to him, 'You fled from a republic and came to Australia, a great constitutional monarchy. You were locked up under the laws unjustly, and under the King's writ you were released. Why, then, would you want to change the system?' He used to say to me, 'Michael, it's a very good point'. You have overlooked, my dear friend, member for Franklin, the power of the court, and my final comment is that if you put a case of injustice before any of our six judges of the Supreme Court of Tasmania - and there should be seven - they will look at it carefully. If they determine that you have been unjustly treated, they will issue an order calling on those who have unjustly treated you to come before them and explain their actions.
Mr McKim - I think you mean illegally treated, do you not?
Mr MICHAEL HODGMAN - Illegally? Correct, yes, but it does not even have to be illegal in the sense of a breach of a specific statutory provision. If it is contrary to the principles of natural justice, as the High Court of Australia said in Heatley's case, then you have a right to go to the court and the court will grant you relief.
Her Majesty's loyal Opposition always carefully considers what you say or, indeed, what any member of the House says. You put a good argument, but you have not persuaded us and we will oppose the motion.
The House divided -
Mr Morris (Teller)
Mr Michael Hodgman
Mr Will Hodgman
Ms Singh (Teller)
Amendment so negatived.
Mr McKIM - In the four minutes remaining I just want to be clear about one matter. Under the model laws the Ombudsman has two discrete responsibilities. One is as an inspector of records; the second one is to report into the chief officer's report. I am worried that members have those confused or have failed to understand that there are two separate functions of the Ombudsman under the national model. The first function under the national model is as an inspector of records. Now we do provide for an inspector of records in Tasmania. Might I add there is nothing in the bill that says it has to be an independent person or authority. It basically allows the minister to appoint whomever he or she likes. That is the first point.
The second function of the Ombudsman under the national model is to report into the chief officer's reports; that will not happen through anybody in Tasmania. I think I have made a pretty clear argument that these bills water down the oversight and accountability mechanisms agreed to under the national process. I accept the verdict of the House, of course, and I respect very much the opinions given by both the Attorney and the shadow, who are both lawyers . I, as members would be aware, am not a lawyer; I am a layperson in the law.
Mr Michael Hodgman - You are pretty good, though.
Mr McKIM - Thank you; I do appreciate that. Just to be clear, the inspection of records will occur under this bill, if it is passed, not necessarily by the Ombudsman but by an entity which is not necessarily independent under the legislation. Secondly, the reports that the Ombudsman will be required, under the national model, to do into the chief officer's reports will not be done by any person at all. There is, of course, an issue which I will raise in one of the subsequent bills, the Surveillance Devices Bill, about the reports to judges or magistrates, which I also think are handled differently under these bills than in the national model.
Mr Deputy Speaker, I have made my arguments as best I can. I accept, as I always do, the will of the House. While I am on my feet I will take the opportunity to indicate I would like to go into Committee to raise a couple of issues.
Mr KONS - (Braddon - Minister for Justice and Workplace Relations) - I thank members for their support of this bill. Regarding the inspection entity being independent, as the minister appointing the inspection entity naturally I would appoint an independent person.
Mr McKim - I accept that, Minister, but what about future ministers? The law ought to specify independence.
Mr KONS - I hope to be here for a long time.
Mr KONS - The inspection entity is to make a written report to me and the Minister for Police. Also, the report will be tabled in Parliament.
Bill read the second time.