Western Australia: Criminal Investigation (Covert Powers) Act 2012 (WA)

Western Australia Criminal Investigation (Covert Powers) Act 2012 Western Australia Criminal Investigation (Covert Powers) Act 2012 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Terms used 1 4. Crown bound 1 Part 2 — Controlled operations Division 1 — General 5. Terms used 1 6. Cross‑border controlled operations 1 7. Local controlled operation 1 8. Evidence obtained in controlled operations 1 9. Non‑application of certain Acts 1 Division 2 — Authorisation of controlled operations 10. Applications for authorities to conduct controlled operations 1 11. Determination of applications 1 12. Matters to be taken into account — all controlled operations 1 13. Further matters to be taken into account — cross‑border controlled operations 1 14. Further matters to be taken into account — local controlled operations 1 15. Form of authority 1 16. Duration of authorities 1 17. Variation of authority 1 18. Variations on authorising officer's own initiative 1 19. Applications for variation of authority 1 20. Determining applications for variation of authority 1 21. Form of variation of authority 1 22. Cancellation of authorities 1 23. Effect of authorities 1 24. Defect in authority 1 25. Retrospective authority 1 26. Corruption and Crime Commission to be notified of retrospective authorities 1 Division 3 — Conduct of controlled operations Subdivision 1 — Controlled conduct engaged in for purposes of controlled operations authorised by Division 2 27. Protection from criminal responsibility for controlled conduct during authorised operations 1 28. Indemnification of participants against civil liability 1 29. Effect of sections 27 and 28 on other laws relating to criminal investigation 1 30. Effect of being unaware of variation or cancellation of authority 1 31. Protection from criminal responsibility for certain ancillary conduct 1 Subdivision 2 — Compensation and notification of third parties 32. Compensation for property loss or damage 1 33. Notification requirements 1 Subdivision 3 — Mutual recognition 34. Mutual recognition of corresponding authorities 1 Division 4 — Compliance and monitoring Subdivision 1 — Restrictions on use, communication and publication of information 35. Disclosure of operational information 1 Subdivision 2 — Reporting and record‑keeping 36. Principal law enforcement officers' reports 1 37. Chief officers' reports 1 38. Annual report by Corruption and Crime Commission 1 39. Keeping documents connected with authorised operations 1 40. General register 1 Subdivision 3 — Inspections 41. Inspection of records by Corruption and Crime Commission 1 Division 5 — Miscellaneous 42. Evidence of authorities 1 43. Delegation 1 Part 3 — Assumed identities Division 1 — General 44. Terms used 1 45. Non‑application of certain Acts 1 46. Relationship to other laws relating to assumed identities 1 Division 2 — Authority for assumed identity 47. Application for authority to acquire or use assumed identity 1 48. Determination of application 1 49. Form of authority 1 50. Duration of authority 1 51. Variation of authority 1 52. Cancellation of authority 1 53. Yearly review of formal authority 1 Division 3 — Evidence of assumed identity 54. Making records of births, deaths or marriages 1 55. Cancellation of authority affecting records of births, deaths or marriages 1 56. Cancelling entries in Register 1 57. Restriction about access to application for entry in Register 1 58. Request for evidence of assumed identity 1 59. Government issuing agencies to comply with request 1 60. Non‑government issuing agencies may comply with request 1 61. Cancellation of evidence of assumed identity 1 62. Protection from criminal liability — officers of issuing agencies 1 63. Indemnity for issuing agencies and officers 1 Division 4 — Effect of authority 64. Assumed identity may be acquired and used 1 65. Protection from criminal liability — authorised persons 1 66. Indemnity for authorised persons 1 67. Particular qualifications 1 68. Effect of being unaware of variation or cancellation of authority 1 Division 5 — Mutual recognition under corresponding laws 69. Requests to participating jurisdiction for evidence of assumed identity 1 70. Requests from participating jurisdiction for evidence of assumed identity 1 71. Directions from participating jurisdiction to cancel evidence of assumed identity 1 72. Indemnity for issuing agencies and officers 1 73. Application of Division to authorities under corresponding laws 1 Division 6 — Compliance and monitoring Subdivision 1 — Misuse of assumed identity and information 74. Misuse of assumed identity 1 75. Disclosing information about assumed identity 1 Subdivision 2 — Reporting and record‑keeping 76. Reports about authorities for assumed identities 1 77. Record‑keeping 1 78. Audit of records 1 Division 7 — Miscellaneous 79. Delegation 1 Part 4 — Witness identity protection Division 1 — General 80. Terms used 1 81. Things done by, or given to, party's lawyer 1 Division 2 — Witness identity protection certificates for operatives 82. Witness identity protection certificate — giving 1 83. Form of witness identity protection certificate 1 Division 3 — Provisions applicable to court proceeding 84. Application of Division 1 85. Filing and notification 1 86. Leave for non‑compliance 1 87. Effect of witness identity protection certificate 1 88. Orders to protect operative's true identity or location 1 89. Disclosure of operative's true identity to presiding officer 1 90. Disclosure of operative's true identity or location despite certificate 1 91. Application for leave — joinder as respondent 1 92. Directions to jury 1 93. Adjournment for appeal decision 1 Division 4 — Provisions applicable to parliamentary proceeding 94. Application of Division 1 95. Witness identity protection certificate to be given to Parliament 1 96. Effect of witness identity protection certificate 1 97. Disclosure of operative's true identity or location despite certificate 1 98. Restrictions on content of reports to Parliament 1 Division 5 — Other matters 99. Witness identity protection certificate — cancellation 1 100. Permission to give information disclosing operative's true identity or location 1 101. Disclosure offences 1 102. Evidentiary certificates 1 103. Reports about witness identity protection certificates 1 Division 6 — Mutual recognition under corresponding laws 104. Recognition of witness identity protection certificates under corresponding laws 1 Division 7 — Miscellaneous 105. Delegation 1 Part 5 — Miscellaneous 106. Regulations 1 107. Review of Parts 2 and 3 1 Part 6 — Savings provisions 108. Term used: commencement day 1 109. Savings provision relating to Misuse of Drugs Act 1981 1 110. Savings provision relating to Prostitution Act 2000 1 Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western Australia Criminal Investigation (Covert Powers) Act 2012 An Act to facilitate criminal investigations and intelligence‑gathering in relation to criminal activity by providing for — • the authorisation, conduct and monitoring of covert law enforcement operations; and • the acquisition and use of assumed identities by participants in covert law enforcement operations; and • the protection of the identity of participants in covert law enforcement operations, and to amend the Corruption and Crime Commission Act 2003 1, the Misuse of Drugs Act 1981 1, the Prostitution Act 2000 1 and the Witness Protection (Western Australia) Act 1996 1, and for related purposes. Part 1 — Preliminary 1. Short title This is the Criminal Investigation (Covert Powers) Act 2012. 2. Commencement This Act comes into operation as follows — (a) sections 1 and 2 — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. 3. Terms used In this Act, unless the contrary intention appears — Australian Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002 (Commonwealth); authorising officer, for a law enforcement agency, means — (a) in relation to the Police Force or the fisheries department — the Commissioner of Police; (b) in relation to the Australian Crime Commission — the Chief Executive Officer of the Australian Crime Commission; chief officer, of a law enforcement agency, means — (a) in relation to the Police Force — the Commissioner of Police; (b) in relation to the Australian Crime Commission — the Chief Executive Officer of the Australian Crime Commission; (c) in relation to the fisheries department — the chief executive officer of the department; conduct includes any act or omission; criminal activity means conduct that constitutes the commission of an offence by one or more persons; disciplinary proceeding means a proceeding of a disciplinary nature under a law of any jurisdiction; fisheries department means the department principally assisting in the administration of the Fish Resources Management Act 1994; fisheries officer has the meaning given in the Fish Resources Management Act 1994 section 4(1); government agency means an authority or body (whether a body corporate or not) established or incorporated for a public purpose by a law of this jurisdiction, a participating jurisdiction or the Commonwealth, and includes a body corporate incorporated under a law of a jurisdiction or of the Commonwealth in which this jurisdiction, a participating jurisdiction or the Commonwealth has a controlling interest; jurisdiction means a State, a Territory or the Commonwealth; law enforcement agency means — (a) the Police Force; or (b) the Australian Crime Commission; or (c) the fisheries department; law enforcement officer means — (a) a police officer; or (b) a person who is seconded to the Police Force, including (but not limited to) a police officer (however described), of another jurisdiction; or (c) a member of staff of the Australian Crime Commission; or (d) a fisheries officer holding a prescribed office in the fisheries department; law enforcement operation means an operation that is conducted, or is intended to be conducted, by a law enforcement agency or other government agency for the purpose of — (a) obtaining evidence that may lead to the prosecution of a person for criminal activity; or (b) arresting any person suspected of being involved in criminal activity; or (c) frustrating criminal activity; or (d) carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in paragraphs (a) to (c); Minister — (a) in relation to the Police Force, means the Minister administering the Police Act 1892; (b) in relation to the Australian Crime Commission, means the Minister administering the Australian Crime Commission (Western Australia) Act 2004; (c) in relation to the fisheries department, means the Minister administering the Fish Resources Management Act 1994; Police Force means the Police Force of Western Australia provided for by the Police Act 1892; police officer means a person appointed under the Police Act 1892 Part I to be a member of the Police Force; prescribed means prescribed by regulations made under this Act; this jurisdiction — (a) means Western Australia; and (b) for the purposes of any suspected criminal activity being investigated by the fisheries department, includes any waters not within the limits of Western Australia that are WA waters as defined in the Fish Resources Management Act 1994 section 5(b) to (d). 4. Crown bound (1) This Act binds the State and, so far as the legislative power of Parliament permits, the Crown in all its other capacities. (2) Nothing in this Act makes the State, or the Crown in any of its other capacities, liable to be prosecuted for an offence. Part 2 — Controlled operations Division 1 — General 5. Terms used In this Part, unless the contrary intention appears — authorised operation means a controlled operation for which an authority is in force; authority means an authority in force under Division 2, and includes any variation of such an authority and any retrospective authority granted under section 25; civilian participant, in an authorised operation, means a participant in the operation who is not a law enforcement officer; controlled conduct means conduct for which a person would, but for section 27 or 34, be criminally responsible; controlled operation means a law enforcement operation that involves, or may involve, controlled conduct; corresponding authorised operation means any operation in the nature of a controlled operation that is authorised by or under the provisions of a corresponding law; corresponding authority means an authority authorising a controlled operation (within the meaning of that term in a corresponding law) that is in force under the corresponding law; corresponding law means a law of another jurisdiction that corresponds to this Part, and includes a prescribed law of another jurisdiction; corresponding participant means a person who is authorised by a corresponding authority to participate in a corresponding authorised operation; Corruption and Crime Commission means the Corruption and Crime Commission established under the Corruption, Crime and Misconduct Act 2003; cross‑border controlled operation has the meaning given in section 6; formal application has the meaning given in section 10(2)(a); formal authority has the meaning given in section 15(1)(a); formal variation application has the meaning given in section 19(3)(a); formal variation of authority has the meaning given in section 21(1)(a); illicit goods means goods the possession of which is a contravention of the law of this jurisdiction in the circumstances of the particular case; law enforcement participant, in an authorised operation, means a participant in the operation who is a law enforcement officer; local controlled operation has the meaning given in section 7; participant, in an authorised operation, means a person who is authorised under this Part to engage in controlled conduct for the purposes of the operation; participating jurisdiction means a jurisdiction in which a corresponding law is in force; principal law enforcement officer, for an authorised operation, means the law enforcement officer who is responsible for the conduct of the operation; relevant offence means — (a) an offence against the law of this jurisdiction punishable by imprisonment for 3 years or more; or (b) an offence not covered by paragraph (a) that is prescribed for the purposes of this definition, being an offence under any of the following Acts — (i) the Classification (Publications, Films and Computer Games) Enforcement Act 1996; (ii) The Criminal Code; (iii) the Firearms Act 1973; (iv) the Fish Resources Management Act 1994; (v) the Misuse of Drugs Act 1981; (vi) the Prostitution Act 2000; (vii) the Weapons Act 1999; sexual offence means — (a) an offence under The Criminal Code Part V Chapter XXXI; or (b) any other offence of a similar kind prescribed for the purposes of this definition; suspect means a person reasonably suspected of having committed or being likely to have committed, or of committing or being likely to commit, a relevant offence; urgent application has the meaning given in section 10(2)(b); urgent authority has the meaning given in section 15(1)(b); urgent variation application has the meaning given in section 19(3)(b); urgent variation of authority has the meaning given in section 21(1)(b). [Section 5 amended: No. 35 of 2014 s. 39.] 6. Cross‑border controlled operations (1) When this Part refers to a cross‑border controlled operation it means a controlled operation that is conducted, or is intended to be conducted — (a) in this jurisdiction and in one or more participating jurisdictions; or (b) in one or more participating jurisdictions. (2) For the purposes of subsection (1), a controlled operation is to be taken to be conducted, or intended to be conducted, in this jurisdiction if a law enforcement officer of this jurisdiction is, or is to be, authorised under this Part to engage in controlled conduct for the purposes of the operation. 7. Local controlled operation When this Part refers to a local controlled operation it means a controlled operation that is conducted, or is intended to be conducted, wholly in this jurisdiction. 8. Evidence obtained in controlled operations (1) Subject to subsection (2), this Part is not intended to limit a discretion that a court has — (a) to admit or exclude evidence in any proceedings; or (b) to stay criminal proceedings in the interests of justice. (2) In determining whether evidence should be admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if — (a) the person was a participant or corresponding participant acting in the course of an authorised operation or corresponding authorised operation; and (b) the criminal activity was controlled conduct within the meaning of that term in this Part or a corresponding law. 9. Non‑application of certain Acts The following Acts do not apply to investigations, operations, activities or records under this Part — (a) the State Records Act 2000; (b) the Freedom of Information Act 1992, despite section 8(1) of that Act. Division 2 — Authorisation of controlled operations 10. Applications for authorities to conduct controlled operations (1) A law enforcement officer of a law enforcement agency may apply to the authorising officer for the agency for authority to conduct a controlled operation on behalf of the agency. (2) An application for an authority may be made — (a) in writing (a formal application); or (b) orally (an urgent application), if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the operation. (3) A formal application must be in a physical form, signed by the applicant. (4) However if it is impracticable in the circumstances for a physical document to be delivered to the authorising officer, a formal application may take the form of — (a) a fax; or (b) an email or other electronic document, in which case the document need not be signed. (5) An urgent application may be made in person, by telephone or any other electronic means. (6) Nothing in this Division prevents an application for an authority being made in respect of a controlled operation that has been the subject of a previous application. (7) In any application, whether formal or urgent, the applicant must — (a) provide sufficient information to enable the authorising officer to decide whether or not to grant the application; and (b) state whether or not the proposed operation, or any other controlled operation in respect of the same criminal activity, has been the subject of an earlier application for an authority or variation of an authority and, if so, whether or not the authority or variation was granted. (8) The authorising officer may require the applicant to furnish such additional information concerning the proposed controlled operation as is necessary for the authorising officer's proper consideration of the application. (9) As soon as practicable after making an urgent application, the applicant must make a record in writing of the application and give a copy of it to the authorising officer. 11. Determination of applications After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 10(8), the authorising officer — (a) may authorise the operation by granting the authority, either unconditionally or subject to conditions; or (b) may refuse the application. 12. Matters to be taken into account — all controlled operations (1) An authority to conduct a controlled operation must not be granted unless the authorising officer is satisfied on reasonable grounds — (a) that a relevant offence has been, is being or is likely to be committed; and (b) that the authority is within the administrative responsibility of the law enforcement agency; and (c) that any unlawful conduct involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and (d) that the operation will be conducted in a way that will minimise the risk of more illicit goods being under the control of persons, other than law enforcement officers, at the end of the operation than are reasonably necessary to enable the officers to achieve the purpose of the controlled operation; and (e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and (f) that the operation does not involve any participant in the operation inducing or encouraging another person to engage in criminal activity of a kind that the other person could not reasonably have been expected to engage in unless so induced or encouraged; and (g) that any conduct involved in the operation will not — (i) seriously endanger the health or safety of any person; or (ii) cause the death of, or serious injury to, any person; or (iii) involve the commission of a sexual offence against any person; or (iv) result in unlawful loss of or serious damage to property (other than illicit goods). (2) A person must not be authorised to participate in a controlled operation unless the authorising officer is satisfied that the person has the appropriate skills or training to participate in the operation. (3) A civilian participant — (a) must not be authorised to participate in any aspect of a controlled operation unless the authorising officer is satisfied that it is wholly impracticable for a law enforcement participant to participate in that aspect of the operation; and (b) must not be authorised to engage in controlled conduct unless the authorising officer is satisfied that it is wholly impracticable for the civilian participant to participate in the aspect of the controlled operation referred to in paragraph (a) without engaging in that conduct. 13. Further matters to be taken into account — cross‑border controlled operations In addition to section 12, an authority to conduct a cross‑border controlled operation must not be granted unless the authorising officer is satisfied on reasonable grounds — (a) that the controlled operation will be, or is likely to be, conducted — (i) in this jurisdiction and in one or more participating jurisdictions; or (ii) in one or more participating jurisdictions; and (b) that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation — (i) in this jurisdiction and in one or more participating jurisdictions; or (ii) in one or more participating jurisdictions. 14. Further matters to be taken into account — local controlled operations In addition to section 12, an authority to conduct a local controlled operation must not be granted unless the authorising officer is satisfied on reasonable grounds — (a) that the controlled operation will be, or is likely to be, conducted wholly in this jurisdiction; and (b) that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation in this jurisdiction. 15. Form of authority (1) An authority to conduct a controlled operation may be granted — (a) in writing (a formal authority); or (b) orally (an urgent authority), if the authorising officer is satisfied that the delay caused by granting a formal authority may affect the success of the operation. (2) A formal authority must be in a physical form, signed by the authorising officer. (3) However if it is impracticable in the circumstances for a physical document to be delivered to the applicant, a formal authority may take the form of — (a) a fax; or (b) an email or other electronic document, in which case the document need not be signed. (4) An urgent authority may be granted in person, by telephone or any other electronic means. (5) Nothing in this Division prevents an authority being granted in respect of a controlled operation that has been the subject of a previous authority. (6) An authority, whether formal or urgent, must do all of the following — (a) state the name, and rank or position, of the person granting the authority; (b) identify the principal law enforcement officer and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; (c) state whether the authority is for a cross‑border controlled operation or a local controlled operation; (d) for a cross‑border controlled operation, state whether it is to be, or is likely to be, conducted — (i) in this jurisdiction and in one or more participating jurisdictions specified in the authority; or (ii) in one or more participating jurisdictions specified in the authority; (e) state whether the authority is a formal authority or an urgent authority; (f) identify each person who may engage in controlled conduct for the purposes of the controlled operation; (g) identify the nature of the criminal activity (including the suspected relevant offences) in respect of which the controlled conduct is to be engaged in; (h) identify — (i) with respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and (ii) with respect to the civilian participants, the particular controlled conduct, if any, that each such participant may engage in; (i) identify (to the extent known) any suspect; (j) specify the period of validity of the authority, being a period not exceeding 6 months in the case of a formal authority or 7 days in the case of an urgent authority; (k) specify any conditions to which the conduct of the operation is subject; (l) state the date and time when the authority is granted; (m) identify (to the extent known) — (i) the nature and quantity of any illicit goods that will be involved in the operation; and (ii) the route through which those goods will pass in the course of the operation. (7) A person is sufficiently identified for the purposes of subsection (6)(f) if the person is identified — (a) by an assumed name under which the person is operating; or (b) by a code name or code number, as long as the assumed name, code name or code number can be matched to the person's identity by reference to records kept by the chief officer. (8) The authorising officer must, as soon as practicable after granting an urgent authority, make a record in writing of the particulars referred to in subsection (6) relating to the authority. 16. Duration of authorities Unless it is sooner cancelled, an authority has effect for the period of validity specified in it in accordance with section 15(6)(j). 17. Variation of authority (1) The authorising officer may vary an authority — (a) at any time on the authorising officer's own initiative; or (b) on application under section 19(1). (2) However, a variation cannot be made that has the effect of extending the period of validity of an urgent authority. (3) The authorising officer must, as soon as practicable after varying an authority, prepare and give to the principal law enforcement officer for the authorised operation a written document that complies with section 21. 18. Variations on authorising officer's own initiative The authorising officer may vary an authority under section 17(1)(a) for any one or more of the following purposes — (a) to extend the period of validity of the authority (except as provided by section 17(2)); (b) to authorise additional or alternative persons to engage in controlled conduct for the purposes of the operation; (c) to authorise participants in the operation to engage in additional or alternative controlled conduct; (d) to identify additional suspects (to the extent known); (e) if the principal law enforcement officer has changed since the authority was granted, to identify the new principal law enforcement officer. 19. Applications for variation of authority (1) The principal law enforcement officer for an authorised operation, or any other law enforcement officer on behalf of the principal law enforcement officer, may apply to the authorising officer for a variation of authority for any one or more of the following purposes — (a) to extend the period of validity of the authority (except as provided by section 17(2)); (b) to authorise additional or alternative persons to engage in controlled conduct for the purposes of the operation; (c) to authorise participants in the operation to engage in additional or alternative controlled conduct; (d) to identify additional suspects (to the extent known); (e) if the principal law enforcement officer has changed since the authority was granted, to identify the new principal law enforcement officer. (2) More than one application for a variation may be made in respect of the same authority, but no single variation may extend the period of validity of an authority for more than 6 months at a time. (3) An application for a variation of an authority may be made — (a) in writing (a formal variation application); or (b) orally (an urgent variation application), if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the operation. (4) A formal variation application must be in a physical form, signed by the applicant. (5) However if it is impracticable in the circumstances for a physical document to be delivered to the authorising officer, a formal variation application may take the form of — (a) a fax; or (b) an email or other electronic document, in which case the document need not be signed. (6) An urgent variation application may be made in person, by telephone or any other electronic means. (7) The authorising officer may require the applicant to furnish such additional information concerning the proposed variation as is necessary for the authorising officer's proper consideration of the application. (8) As soon as practicable after making an urgent variation application, the applicant must make a record in writing of the application and give a copy of it to the authorising officer. 20. Determining applications for variation of authority (1) After considering an application for a variation of authority, and any additional information furnished under section 19(7), the authorising officer — (a) may vary the authority in accordance with the application, or part of the application, either unconditionally or subject to conditions; or (b) may refuse the application. (2) Sections 12, 13 and 14 apply to an application for a variation of authority under this section in the same way as they apply to an application for authority under section 11. (3) Without limiting subsection (2), a variation of authority must not be granted unless the authorising officer is satisfied on reasonable grounds that the variation will not authorise a significant alteration of the nature of the authorised operation concerned. 21. Form of variation of authority (1) A variation of authority may be made — (a) in writing (a formal variation of authority) to the principal law enforcement officer for the authorised operation, or another law enforcement officer on behalf of the principal law enforcement officer, as the case requires; or (b) orally (an urgent variation of authority) to the principal law enforcement officer for the authorised operation, or another law enforcement officer on behalf of the principal law enforcement officer, as the case requires, if the person making the variation is satisfied that the delay caused by making a formal variation of authority may affect the success of the operation. (2) A formal variation of authority must be in a physical form, signed by the authorising officer. (3) However if it is impracticable in the circumstances for a physical document to be delivered to the principal law enforcement officer for the authorised operation, or another law enforcement officer on behalf of the principal law enforcement officer, as the case requires, a formal variation of authority may take the form of — (a) a fax; or (b) an email or other electronic document, in which case the document need not be signed. (4) An urgent variation of authority may be made in person, by telephone or any other electronic means. (5) A variation of authority must — (a) identify the authorised operation for which the authority is in force; and (b) state the name, and rank or position, of the person making the variation of authority; and (c) state whether the variation of authority is a formal variation of authority or an urgent variation of authority; and (d) if the variation is made under section 17(1)(a) — (i) describe the variation having regard to the purposes referred to in section 18 in respect of which the variation is or was made; and (ii) specify the reasons why the variation of authority is or was made; and (e) if the variation is made under section 17(1)(b) — (i) state the name of the applicant; and (ii) describe the variation having regard to the purposes referred to in section 19(1) in respect of which the application for the variation was made; and (f) state the date and time when the variation of authority is or was made. (6) The authorising officer must, as soon as practicable after making an urgent variation of authority, make a record in writing of the particulars referred to in subsection (5) relating to the variation of authority. 22. Cancellation of authorities (1) The authorising officer may, by order in writing given to the principal law enforcement officer for an authorised operation, cancel the authority at any time and for any reason. (2) Without limiting subsection (1), the authorising officer may cancel an authority for an authorised operation at any time at the request of the principal law enforcement officer for the operation. (3) Cancellation of an authority for a controlled operation takes effect at the time when the order is made or at the later time specified in the order. (4) The order must specify the reasons for the cancellation of the authority. 23. Effect of authorities (1) While it has effect, an authority for a controlled operation — (a) authorises each law enforcement participant to engage in the controlled conduct specified in the authority in respect of the law enforcement participants; and (b) authorises each civilian participant, if any, to engage in the particular controlled conduct, if any, specified in the authority in respect of that participant. (2) In the case of a local controlled operation, the authority authorises each participant to engage in the conduct referred to in subsection (1) in this jurisdiction but not in any other jurisdiction. (3) In the case of a cross‑border controlled operation, the authority authorises each participant to engage in the conduct referred to in subsection (1) — (a) in this jurisdiction and in one or more participating jurisdictions; or (b) in one or more participating jurisdictions, subject to any corresponding law of that participating jurisdiction. (4) The authority to engage in controlled conduct given to a participant cannot be delegated to any other person. 24. Defect in authority An application for authority or variation of authority, and any authority or variation of authority granted or made on the basis of such an application, is not invalidated by any defect, other than a defect that affects the application, authority or variation in a material particular. 25. Retrospective authority (1) This section applies to local controlled operations but not to cross‑border controlled operations. (2) If a participant in an authorised operation engages in unlawful conduct (other than controlled conduct) in the course of the operation, the principal law enforcement officer for the operation may, within 24 hours (or any longer period that the authorising officer may, in exceptional circumstances, allow) after the participant engages in that conduct, apply to the authorising officer for retrospective authority for the conduct. (3) An application under this section may be made in such manner as the authorising officer permits. (4) The authorising officer may require the principal law enforcement officer to furnish such additional information concerning the relevant conduct as is necessary for the authorising officer's proper consideration of the application. (5) After considering an application under subsection (2), and any additional information furnished under subsection (4), the authorising officer — (a) may grant retrospective authority in accordance with the application; or (b) may refuse the application. (6) Retrospective authority must not be granted unless the authorising officer is satisfied — (a) that the participant who engaged in the conduct believed on reasonable grounds — (i) that there was a substantial risk to the success of the authorised operation; or (ii) that there was a substantial risk to the health or safety of a participant in the operation, or any other person, as a direct result of the conduct of the authorised operation; or (iii) that criminal activity other than the criminal activity in respect of which the authorised operation is being conducted had occurred, or was likely to occur, and that there was a substantial risk that evidence relating to that criminal activity would be lost, and the participant could not avoid that risk otherwise than by engaging in the relevant conduct; and (b) that, at all times prior to those circumstances arising, the participant had been acting in good faith; and (c) that the participant had not foreseen, and could not reasonably be expected to have foreseen, that those circumstances would arise; and (d) that, had it been possible to foresee that those circumstances would arise, authority for the relevant conduct would have been sought; and (e) that it was not reasonably possible in those circumstances for the participant to seek a variation of the authority for the operation to authorise the relevant conduct. (7) Subsection (6) does not allow retrospective authority to be granted with respect to any conduct that — (a) seriously endangered the health or safety of any person; or (b) caused the death of, or serious injury to, any person; or (c) involved the commission of a sexual offence against any person; or (d) resulted in unlawful loss of or serious damage to property (other than illicit goods). (8) The authorising officer's power to grant a retrospective authority under this section cannot be delegated to any other person. 26. Corruption and Crime Commission to be notified of retrospective authorities (1) An authorising officer who grants a retrospective authority under section 25 must provide the Corruption and Crime Commission with written details of the retrospective authority and the circumstances justifying that authority. (2) The details must be provided as soon as practicable after the retrospective authority is granted but, in any case, no later than 7 days after it is granted. (3) The Corruption and Crime Commission may require the authorising officer to furnish such further information concerning the retrospective authority as is necessary for the Corruption and Crime Commission's proper consideration of it. Division 3 — Conduct of controlled operations Subdivision 1 — Controlled conduct engaged in for purposes of controlled operations authorised by Division 2 27. Protection from criminal responsibility for controlled conduct during authorised operations Despite any other written law of this jurisdiction, a participant who engages in conduct (whether in this jurisdiction or elsewhere) in an authorised operation in the course of, and for the purposes of, the operation is not, if engaging in that conduct is an offence, criminally responsible for the offence if — (a) the conduct is authorised by, and is engaged in accordance with, the authority for the operation; and (b) the conduct does not involve the participant inducing or encouraging another person to engage in criminal activity of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged; and (c) the conduct does not involve the participant engaging in any conduct that is likely to — (i) cause the death of, or serious injury to, any person; or (ii) involve the commission of a sexual offence against any person; and (d) if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer. 28. Indemnification of participants against civil liability (1) In this section — participant does not include a police officer. (2) The chief officer of a law enforcement agency must indemnify a participant in an authorised operation against any civil liability (including reasonable costs) that the participant incurs because of conduct that the participant engages in if — (a) the participant engages in the conduct in the course of, and for the purposes of, the operation in accordance with the authority for the operation; and (b) the conduct does not involve the participant inducing or encouraging another person to engage in criminal activity of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged; and (c) the conduct does not involve the participant engaging in any conduct that is likely to — (i) cause the death of, or serious injury to, any person; or (ii) involve the commission of a sexual offence against any person; and (d) if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer; and (e) the requirements, if any, specified in the regulations have been met. 29. Effect of sections 27 and 28 on other laws relating to criminal investigation Sections 27 and 28 do not apply to a person's conduct that is, or could have been, authorised under a law of this jurisdiction relating to one or more of the following — (a) arrest or detention of individuals, except an arrest carried out as a result of an authorised operation; (b) searches of individuals; (c) entry onto, or searches or inspection of, premises; (d) searches, inspections or seizures of other property; (e) forensic procedures; (f) electronic surveillance devices or telecommunications interception; (g) identification procedures; (h) the acquisition or use of assumed identities; (i) any other matter concerning powers of criminal investigation. 30. Effect of being unaware of variation or cancellation of authority (1) If an authority for a controlled operation is varied in a way that limits its scope, this Division continues to apply to a participant in the operation as if the authority had not been varied in that way, for as long as — (a) the participant is unaware of the variation; and (b) the authorising officer for the relevant agency has taken reasonable measures to ensure the participant is aware of any variation. (2) If an authority for a controlled operation is cancelled, this Division continues to apply to a participant in the operation as if the authority had not been cancelled, for as long as — (a) the participant is unaware of the cancellation; and (b) the authorising officer has taken reasonable measures to ensure the participant is aware of any cancellation. 31. Protection from criminal responsibility for certain ancillary conduct (1) This section applies to conduct such as aiding and abetting the commission of an offence or of conspiring to commit an offence (ancillary conduct) for which a person may be criminally responsible because it involves conduct engaged in by another person that is conduct for which the other person would (but for section 27) be criminally responsible (the related controlled conduct). (2) Despite any other written law of this jurisdiction, a person who engages in ancillary conduct that is an offence (whether or not the person is a participant in a controlled operation) is not criminally responsible for the offence if, at the time the person engaged in the ancillary conduct — (a) the person believed that the related controlled conduct was being engaged in, or would be engaged in, by a participant in an authorised operation; and (b) the person was a participant in, or was otherwise authorised to know about, the operation. Subdivision 2 — Compensation and notification of third parties 32. Compensation for property loss or damage (1) If a person suffers loss of or damage to property as a direct result of an authorised operation, the State is liable to pay to the person compensation as agreed between the State and the person or, in default of agreement, as determined by action against the State in a court of competent jurisdiction. (2) Subsection (1) does not apply if — (a) the person suffered the loss or damage in the course of, or as a direct result of, engaging in any criminal activity (other than criminal activity that is controlled conduct); or (b) the person was a participant involved in the authorised operation at the time of suffering the loss or damage. 33. Notification requirements (1) If any loss of or damage to property occurs in the course of or as a direct result of an authorised operation (other than property of the State that is under the management or control of a participating law enforcement officer), the principal law enforcement officer for the operation must report the loss or damage to the chief officer as soon as practicable. (2) The chief officer must take all reasonable steps to notify the owner of the property of the loss or damage. (3) The chief officer is not required to notify the owner of property under this section until the chief officer is satisfied that notification would not — (a) compromise or hinder the authorised operation; or (b) compromise the identity of a participant in the authorised operation; or (c) endanger the life or safety of any person; or (d) prejudice any legal proceedings; or (e) otherwise be contrary to the public interest. Subdivision 3 — Mutual recognition 34. Mutual recognition of corresponding authorities The following provisions apply, with any necessary changes, to a corresponding authority under a corresponding law, and to a corresponding authorised operation under that law, as if the corresponding authority were an authority given under section 11 — (a) section 23 (Effect of authorities); (b) section 24 (Defect in authority); (c) section 27 (Protection from criminal responsibility for controlled conduct during authorised operations); (d) section 28 (Indemnification of participants against civil liability); (e) section 29 (Effect of sections 27 and 28 on other laws relating to criminal investigation); (f) section 30 (Effect of being unaware of variation or cancellation of authority); (g) section 31 (Protection from criminal responsibility for certain ancillary conduct). Division 4 — Compliance and monitoring Subdivision 1 — Restrictions on use, communication and publication of information 35. Disclosure of operational information (1) In this section — operational information means any information relating to a controlled operation for which an authority is or was in force or a corresponding authorised operation. (2) A person who has access, or has had access, to operational information must not disclose the information except — (a) in connection with the administration or execution of this Part or a corresponding law; or (b) for the purposes of any legal proceeding arising out of or otherwise related to this Part or a corresponding law or of any report of any such proceedings; or (c) for the purpose of reporting to an appropriate authority any criminal activity that is outside the scope of the authority granted in respect of the authorised operation; or (d) for the purpose of seeking legal advice; or (e) to a government agency for the purposes of a law enforcement operation conducted by that agency or for intelligence-gathering purposes; or (f) in accordance with any requirement imposed by law. Penalty: imprisonment for 10 years. Summary conviction penalty: a fine of $24 000 or imprisonment for 2 years. (3) An offence against subsection (2) is an indictable offence. Subdivision 2 — Reporting and record‑keeping 36. Principal law enforcement officers' reports (1) Within 2 months after the completion of an authorised operation, the principal law enforcement officer for the operation must make a report in accordance with this section to the chief officer of the law enforcement agency. (2) The report must include all of the following details — (a) the dates and times when the authorised operation began and was completed; (b) whether the operation was a cross‑border controlled operation or a local controlled operation; (c) the nature of the controlled conduct engaged in for the purposes of the operation; (d) details of the outcome of the operation; (e) if the operation involved illicit goods, a statement (to the extent known) of — (i) the nature and quantity of the illicit goods; and (ii) the route through which the illicit goods passed in the course of the operation; (f) details of any loss of or serious damage to property, or any personal injuries, occurring in the course of or as a direct result of the operation; (g) details (to the extent known) of any loss of or serious damage to property, or any personal injuries, occurring as an indirect result of the operation; (h) information as to whether — (i) in the course of the operation, any participant engaged in unlawful conduct (other than controlled conduct that the participant was authorised to engage in for the purposes of the operation); and (ii) any unlawful conduct (other than controlled conduct) was engaged in during the operation; and (iii) any person is, because of section 31, not criminally responsible for ancillary conduct (as defined in that section); and (iv) any variations were made to an authority for the operation; and (v) any of those variations were to extend the period of validity of the authority; and (vi) any retrospective authority was granted in respect of the operation; and (vii) any urgent authority was granted in respect of the operation; and (viii) any conditions of an authority for the operation were breached. 37. Chief officers' reports (1) As soon as practicable after 30 June and 31 December in each year, the chief officer of each law enforcement agency must submit a report to the Corruption and Crime Commission setting out the details required by subsection (2) in relation to controlled operations conducted on behalf of the agency during the previous 6 months. (2) The report must include all of the following details — (a) the number of formal authorities that have been granted or varied by the authorising officer for the agency, and the number of formal applications for the granting or variation of authorities that have been refused by the authorising officer for the agency, during the period to which the report relates; (b) the number of — (i) urgent authorities that have been granted by the authorising officer for the agency; and (ii) urgent variations of authorities made by the authorising officer for the agency; and (iii) urgent applications for authorities or urgent variations of authorities that have been refused by the authorising officer for the agency, during the period to which the report relates; (c) the nature of the criminal activities against which the authorised operations were directed; (d) the nature of the controlled conduct engaged in for the purposes of the authorised operations; (e) if any of the authorised operations involved illicit goods, a statement (to the extent known) of — (i) the nature and quantity of the illicit goods; and (ii) the route through which the illicit goods passed in the course of the operations; (f) details of any loss of or serious damage to property, or any personal injuries, occurring in the course of or as a direct result of the authorised operations; (g) the number of authorities cancelled by the authorising officer for the agency, or that have expired during the period to which the report relates; (h) any seizure, arrest and prosecution arising from the authorised operations. (3) The Corruption and Crime Commission may require the chief officer to furnish additional information in relation to any authorised operation to which a report relates. (4) The details mentioned in subsection (2) must be classified into cross‑border controlled operations and local controlled operations. (5) The report must not disclose any information that identifies any suspect or a participant in an authorised operation or that is likely to lead to such a person or participant being identified. (6) Nothing in this section requires particulars of an authorised operation to be included in a report for a period of 6 months if the operation had not been completed during that period, but the particulars must instead be included in the report for the period of 6 months in which the operation is completed. 38. Annual report by Corruption and Crime Commission (1) The Corruption and Crime Commission must, as soon as practicable after 30 June in each year, prepare a report of the work and activities of the law enforcement agencies under this Part for the preceding 12 months and give a copy of the report to the Minister and to the chief officer of each law enforcement agency to which the report relates. (2) The chief officer must advise the Minister of any information in the report that, in the chief officer's opinion, should be excluded from the report before the report is laid before each House of Parliament because the information, if made public, could reasonably be expected to — (a) endanger a person's safety; or (b) prejudice an investigation or prosecution; or (c) compromise any law enforcement agency's operational activities or methodologies. (3) The Minister must — (a) exclude information from the report if satisfied on the advice of the chief officer of any of the grounds set out in subsection (2); and (b) insert a statement to the effect that information has been excluded from the report under paragraph (a). (4) The Minister is to cause a copy of the report to be laid before each House of Parliament within 15 sitting days from the day on which the report is received by the Minister. (5) The report must include, for each law enforcement agency concerned, comments on the comprehensiveness and adequacy of the reports that were provided to the Corruption and Crime Commission by the chief officer of the law enforcement agency. (6) The report must not disclose any information that identifies any suspect or a participant in an authorised operation, or that is likely to lead to such a person or participant being identified. (7) Nothing in this section requires particulars of an authorised operation to be included in a report for a year if the operation had not been completed as at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed. 39. Keeping documents connected with authorised operations The chief officer of a law enforcement agency must cause all of the following to be kept — (a) each application made by a law enforcement officer of the agency; (b) each authority granted to a law enforcement officer of the agency; (c) each variation application made by a law enforcement officer of the agency; (d) each variation of authority granted or made by the authorising officer for the agency; (e) each order cancelling an authority granted to a law enforcement officer of the agency; (f) each retrospective authority granted under section 25 and details of the application and authority to which the retrospective authority relates; (g) each report of a principal law enforcement officer of the agency under section 33(1) or 36. 40. General register (1) The chief officer of a law enforcement agency must cause a general register to be kept. (2) The general register is to specify — (a) for each application under this Part made by a law enforcement officer of the agency (including an application for variation of authority) — (i) the date of the application; and (ii) whether the application was formal or urgent; and (iii) whether the application was made for a cross‑border controlled operation or a local controlled operation; and (iv) whether the application was for a retrospective authority under section 25; and (v) whether the application was granted, refused or withdrawn; and (vi) if the application was refused or withdrawn, the date and time of the refusal or withdrawal; and (b) for each authority under this Part granted to a law enforcement officer of the agency — (i) the date and time when the authority was granted; and (ii) whether the authority was formal or urgent; and (iii) whether the authority was granted for a cross‑border controlled operation or a local controlled operation; and (iv) whether the authority was a retrospective authority granted under section 25; and (v) the name, and rank or position, of the person who granted the authority; and (vi) each relevant offence in respect of which controlled conduct under the authority was to be engaged in; and (vii) the period of validity of the authority; and (viii) if the authority was cancelled, the date and time of cancellation; and (ix) the date and time when the authorised operation began and the date of completion of the operation; and (x) the date on which the principal law enforcement officer for the operation made a report on the operation under section 36; and (xi) if the authorised operation involved illicit goods, to the extent known — (I) the nature and quantity of the illicit goods; and (II) the route through which the illicit goods passed in the course of the operation; and (xii) details of any loss of or damage to property, or any personal injuries, occurring in the course of or as a direct result of the operation; and (c) for each variation of authority under this Part — (i) the date and time when the variation was made; and (ii) whether the variation was formal or urgent; and (iii) the name, and rank or position, of the person who made the variation. Subdivision 3 — Inspections 41. Inspection of records by Corruption and Crime Commission (1) The Corruption and Crime Commission must, from time to time and at least once every 12 months, inspect the records of a law enforcement agency to determine the extent of compliance with this Part by the agency and law enforcement officers of the agency. (2) For the purposes of an inspection under this section, the Corruption and Crime Commission — (a) after notifying the chief officer of the law enforcement agency, may enter at any reasonable time premises occupied by the agency; and (b) is entitled to have full and free access at all reasonable times to all records of the law enforcement agency that are relevant to the inspection; and (c) may require a person employed or engaged in the law enforcement agency to give the Corruption and Crime Commission any information that the Corruption and Crime Commission considers necessary, being information that is in the person's possession, or to which the person has access, and that is relevant to the inspection. (3) The Corruption and Crime Commission may delegate to an officer of the Commission (as defined in the Corruption, Crime and Misconduct Act 2003 section 3(1)) a power or duty of the Corruption and Crime Commission under this section and, for that purpose, the Corruption, Crime and Misconduct Act 2003 section 185(3) to (6) apply as if the delegation were a delegation under section 185. (4) The chief officer must ensure that persons employed or engaged in the law enforcement agency give the Corruption and Crime Commission any assistance the Corruption and Crime Commission reasonably requires to enable the Corruption and Crime Commission to perform or exercise functions under this section. (5) For the purposes of this section a record of, or a person employed or engaged in, the department of the Public Service that principally assists the Minister in the administration of the Police Act 1892 is to be taken to be a record of, or a person employed or engaged in, the Police Force. [Section 41 amended: No. 35 of 2014 s. 39.] Division 5 — Miscellaneous 42. Evidence of authorities (1) A document purporting to be an authority granted under section 11 — (a) is admissible in any legal proceedings; and (b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting the authority was satisfied of the facts of which he or she was required to be satisfied before granting the authority. (2) A document purporting to be an authority within the meaning of that term in a corresponding law granted under a provision of the corresponding law that corresponds to section 11 — (a) is admissible in any legal proceedings in this jurisdiction; and (b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person who granted the authority was satisfied of the facts of which he or she was required to be satisfied under the corresponding law before granting the authority. 43. Delegation (1) In this section — senior officer means — (a) in relation to an authorising officer or chief officer who is the Commissioner of Police — a police officer of or above the rank of Commander; or (b) in relation to an authorising officer or chief officer who is the Chief Executive Officer of the Australian Crime Commission — (i) an SES employee as defined in the Australian Crime Commission Act 2002 (Commonwealth) section 4(1); or (ii) a person holding a prescribed office in the Australian Crime Commission; or (c) in relation to a chief officer who is the chief executive officer of the fisheries department — a fisheries officer holding a prescribed office in the department. (2) Except as provided by this section, and despite any other written law to the contrary, the functions of an authorising officer or chief officer under this Part cannot be delegated to any other person. (3) Except as provided in section 25(8), the authorising officer for, or chief officer of, a law enforcement agency may delegate to a senior officer any of his or her functions under this Part relating to the authorisation of controlled operations (including the variation and cancellation of authorities and the giving of notification under section 33(2)). Part 3 — Assumed identities Division 1 — General 44. Terms used In this Part, unless the contrary intention appears — acquire an assumed identity, means acquire evidence of the identity and includes taking steps towards acquiring evidence of the identity; authorised civilian means a person (other than a law enforcement officer) who is authorised under an authority to acquire or use an assumed identity; authorised officer means a law enforcement officer who is authorised under an authority to acquire or use an assumed identity; authorised person means — (a) an authorised civilian; or (b) an authorised officer; authority means an authority granted under section 48 to acquire or use an assumed identity, including the authority as varied under section 51; chief officer, of an issuing agency, means the chief executive officer (however described) of the agency; corresponding authority means — (a) an authority under a corresponding law to acquire or use an assumed identity in this jurisdiction; or (b) an authority under a corresponding law to request the production of evidence of an assumed identity in this jurisdiction; corresponding law means a law of another jurisdiction that corresponds to this Part, and includes a prescribed law of another jurisdiction; doing a thing includes failing to do the thing; evidence, of identity, means a document or other thing (such as a driver's licence, birth certificate, credit card or identity card) that evidences, indicates or supports, or can be used to evidence, indicate or support, a person's identity or any aspect of a person's identity; formal authority has the meaning given in section 49(1)(a); government issuing agency, in relation to an authority, means a government agency named in the authority that issues evidence of identity; issuing agency means — (a) a government issuing agency; or (b) a non‑government issuing agency; non‑government issuing agency, in relation to an authority, means a person, body or entity (other than a government issuing agency) named in the authority that issues evidence of ident