Big Brother's New Toys: Regulation of contemporary covert and coercive policing methods in Australia

The 1970s and 80s saw a marked turning point in public awareness of organized crime and its effects upon Australian civil society and the institutions of the state.  The following decades saw a ‘dramatic’ development in the covert tools and techniques employed by law enforcement to combat organised crime. Concomitant with these developments has been a shifting in policing praxis from reactive policing to ‘proactive’ or ‘intelligence-led’ policing. As such, not only have tools and techniques developed, but they are employed by law enforcement officers with increasing frequency and also creativity.

This thesis will focus upon three distinct but occasionally interrelated tools and techniques: electronic surveillance; covert and controlled operations; and the use of coercive powers of examination.

The use of these contemporary tools and techniques described above is intrusive, deceptive and coercive.  Moreover, the use of each tool or technique is erosive of rights which are otherwise closely guarded under Australian law.  As Clive Harfield notes, ‘[t]he covert investigation of crime is an area in which a number of principles and interests find themselves juxtaposed in dynamic, and occasionally fraught, interaction.’ As such, these policing means and methods bear with them a significant threat to individual human rights and privileges, such as: the right to silence; the right to privacy; the privilege against self-incrimination; the right to liberty; the right to freedom from interference with property; and the overarching right to a fair trial – all rights which are enshrined in the International Covenant on Civil and Political Rights and the Charter of Human Rights and Responsibilities Act 2006 (Vic).

This thesis is principally concerned with this threat and with the dichotomy between the need for effective and up-to-date policing and the preservation of individual human rights.  are the statutory and judge-made laws, combined with the rules of evidence and external oversight an appropriate mechanism by which to regulate covert and coercive policing tools and techniques?  And, if an appropriate regulatory framework cannot be achieved within the current system, how might one be achieved?