Police Powers (Controlled Operations) Act 2006 (Tas)

Police Powers (Controlled Operations) Act 2006 An Act to provide for the authorisation, conduct and monitoring of controlled operations and for other matters [Royal Assent 18 December 2006] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Police Powers (Controlled Operations) Act 2006 . 2. Commencement This Act commences on a day to be proclaimed. 3. Purposes of Act The main purposes of this Act are – (a) to provide for the authorisation, conduct and monitoring of controlled operations, including operations conducted in this or this and one or more other jurisdictions or in one or more participating jurisdictions – (i) for the purpose of obtaining evidence that may lead to the prosecution of persons for particular offences; and (ii) that involve or may involve conduct for which participants in the operation would otherwise be criminally responsible; and (b) to facilitate mutual recognition of things done in relation to controlled operations authorised under laws of other jurisdictions corresponding to this Act; and (c) to ensure, as far as practicable, that only appropriately trained persons may act as participants in authorised operations; and (d) to ensure that a person who may act as a participant in an authorised operation engages in otherwise unlawful activities only as part of the authorised operation; and (e) to provide appropriate protection from civil and criminal liability for persons acting under this Act; and (f) to clarify the status of evidence obtained by participants in authorised operations. 4. Interpretation In this Act, unless the contrary intention appears – Australian Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth; authorised operation means a controlled operation for which an authority is in force; authority means an authority in force under Part 2 , and includes any variation of such an authority; chief officer means the person for the time being holding office as – (a) in relation to the Police Service, the Commissioner of Police; or (b) in relation to the Australian Crime Commission, the Chief Executive Officer of the Australian Crime Commission; civilian participant, in an authorised operation, means a participant in the operation who is not a law enforcement officer; conduct includes any act or omission; controlled conduct means conduct for which a person would, but for section 18 or 25 , be criminally responsible; controlled operation means an operation that – (a) is conducted, or is intended to be conducted, for the purpose of obtaining evidence that may lead to the prosecution of a person for a relevant offence; and (b) 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 a corresponding law) that is in force under the corresponding law; corresponding law means a law of another jurisdiction that corresponds to this Act, and includes a law of another jurisdiction that is declared by the regulations to correspond to this Act; corresponding participant means a person who is authorised by a corresponding authority to participate in a corresponding authorised operation; criminal activity means conduct that involves the commission of an offence by one or more persons; function includes a power, authority or duty; formal application – see section 9(2)(a) ; formal authority – see section 11(1)(a) ; formal variation application – see section 13(5)(a) ; formal variation of authority – see section 13(10)(a) ; illicit goods means goods the possession of which is a contravention of the law of this jurisdiction; inspection entity means the person appointed and holding office under section 31 ; jurisdiction means a State or Territory of the Commonwealth; law enforcement agency means – (a) the Police Service; or (b) the Australian Crime Commission; law enforcement officer means – (a) in relation to the Police Service, a police officer; and (b) in relation to the Australian Crime Commission, a member of staff of the Australian Crime Commission – and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service, and a police officer (however described), of another jurisdiction; law enforcement participant, in an authorised operation, means a participant in the operation who is a law enforcement officer; participant, in an authorised operation, means a person who is authorised under this Act 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 a maximum term of imprisonment of 3 years or more; or (b) an offence against the law of this jurisdiction that is prescribed by the regulations; 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; this jurisdiction means Tasmania; urgent application – see section 9(2)(b) ; urgent authority – see section 11(1)(b) ; urgent variation application – see section 13(5)(b) ; urgent variation of authority – see section 13(10)(b) . 5. Meaning of "reckless" (1) A person is "reckless" in relation to a circumstance if – (a) the person is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (2) A person is "reckless" in relation to a result if – (a) the person is aware of a substantial risk that the result will happen; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (3) It is a question of fact as to whether taking a risk is unjustifiable. 6. Act binds Crown (1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. (2) Nothing in this Act makes the Crown liable to be prosecuted for an offence. 7. Relationship to other laws and matters (1) This Act is not intended to affect any law of this jurisdiction that authorises, controls or monitors the conduct of operations wholly within this jurisdiction – (a) that are for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence; and (b) that involve, or may involve, conduct for which participants in the operation would otherwise be criminally responsible. (2) This Act is not intended to affect the investigation of minor matters or investigative activities in Tasmania that, by their nature, may involve the participation of law enforcement officers in activities that may be unlawful. (3) Subject to subsections (1) and (2) , a controlled operation may be approved only under this Act. (4) The Commissioner of Police may issue guidelines to police officers relating to the conduct of investigations or activities referred to in subsection (2) . (5) A function conferred in relation to the activities of the Australian Crime Commission under this Act is only conferred for the purpose of the function conferred on the Australian Crime Commission under the Australian Crime Commission (Tasmania) Act 2004 relating to suspected serious and organised crime as defined under that Act. (6) Subject to subsection (7) , this Act 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. (7) 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 this Act or controlled conduct within the meaning of a corresponding law. (8) The following Acts do not apply to investigations, operations, activities and records under this Act: (a) the Archives Act 1983 ; (b) the Freedom of Information Act 1991 ; (c) the Personal Information Protection Act 2004 . 8. Controlled operation taken to be conducted in this jurisdiction For the purposes of this Act, a controlled operation in relation to a relevant offence is taken to be conducted in this jurisdiction, whether or not it is also conducted in another jurisdiction, if a participant in the operation is a law enforcement officer of this jurisdiction. PART 2 - Authorisation of Controlled Operations 9. Applications for authorities to conduct controlled operations (1) A law enforcement officer of a law enforcement agency may apply to the chief officer of the agency for authority to conduct a controlled operation on behalf of the agency. (2) An application for an authority may be made – (a) by means of a written document signed by the applicant (a "formal application"); or (b) if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the operation, orally in person or by telephone, fax, email or any other means of communication (an "urgent application"). (3) Nothing in this Part prevents an application for an authority being made in respect of a controlled operation that has been the subject of a previous application. (4) In any application, whether formal or urgent, the applicant must – (a) provide sufficient information to enable the chief 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. (5) The chief officer may require the applicant to furnish such additional information concerning the proposed controlled operation as is necessary for the chief officer's proper consideration of the application. (6) 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 chief officer. 10. Determination of applications (1) After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 9(5) , the chief officer – (a) may authorise the operation by granting the authority, either unconditionally or subject to conditions; or (b) may refuse the application. (2) An authority to conduct a controlled operation may not be granted unless the chief 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 controlled operation will be, or is likely to be, conducted in this jurisdiction, in this and one or more other jurisdictions or in one or more participating jurisdictions; and (c) that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation in this jurisdiction, in this and one or more other jurisdictions or in one or more participating jurisdictions; and (d) that any unlawful conduct involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and (e) 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 (f) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Part 4 to be complied with; and (g) that the operation will not be conducted in such a way that a person is likely to be induced to commit an offence against a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; and (h) 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); and (i) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer. 11. Form of authority (1) An authority to conduct a controlled operation may be granted – (a) by means of a written document, signed by the chief officer (a "formal authority"); or (b) if the chief officer is satisfied that the delay caused by granting a formal authority may affect the success of the operation, orally in person or by telephone, fax, email or any other means of communication (an "urgent authority"). (2) Nothing in this Part prevents an authority being granted in respect of a controlled operation that has been the subject of a previous authority. (3) An authority, whether formal or urgent, must – (a) state the name and rank or position of the person granting the authority; and (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; and (c) state whether the application is a formal application or an urgent application; and (d) identify each person who may engage in controlled conduct for the purposes of the controlled operation; and (e) state the participating jurisdictions in which the controlled conduct is, or is likely, to be engaged in; and (f) identify the nature of the criminal activity (including the suspected relevant offences) in respect of which the controlled conduct is to be engaged in; and (g) 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; and (h) identify (to the extent known) any suspect; and (i) specify the period of validity of the authority, being a period not exceeding 3 months in the case of a formal authority or 7 days in the case of an urgent authority; and (j) specify any conditions to which the conduct of the operation is subject; and (k) state the date and time when the authority is granted; and (l) 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. (4) A person is sufficiently identified for the purposes of subsection (3)(d) 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 – so long as the assumed name, code name or code number can be matched to the person's identity. (5) The chief officer must ensure that written notes are kept of the particulars referred to in subsection (3) for each urgent authority. 12. Duration of authorities Unless it is sooner cancelled, an authority has effect for the period of validity specified in it in accordance with section 11(3)(i) . 13. Variation of authority (1) The chief officer may vary an authority – (a) at any time on the chief officer's own initiative; or (b) on application under subsection (3) . (2) However, a variation cannot be made that has the effect of extending the period of validity of an urgent authority. (3) 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 chief 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 subsection (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). (4) 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 3 months at a time. (5) An application for a variation of an authority may be made – (a) by means of a written document that is signed by the applicant (a "formal variation application"); or (b) if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the operation, orally in person or by telephone, fax, email or any other means of communication (an "urgent variation application"). (6) The chief officer may require the applicant to furnish such information concerning the proposed variation as is necessary for the chief officer's proper consideration of the application. (7) After considering an application for a variation of authority, and any additional information furnished under subsection (6) , the chief officer – (a) may vary the authority in accordance with the application, either unconditionally or subject to conditions; or (b) may refuse the application. (8) Section 10(2) applies to an application for a variation of authority under this section in the same way as it applies to an application for authority under section 10(1) . (9) Without limiting subsection (8) , a variation of authority may not be granted unless the chief officer is satisfied on reasonable grounds that the variation will not authorise a significant alteration of the nature of the authorised operation concerned. (10) A variation of authority may be granted only – (a) by means of a written document signed by the chief officer (a "formal variation of authority"); or (b) if the person granting the variation is satisfied that the delay caused by granting a formal variation of authority may affect the success of the operation, orally in person or by telephone, fax, email or any other means of communication (an "urgent variation of authority"). (11) The chief officer – (a) must ensure that written notes are kept of the following matters: (i) the date and time when the variation of authority was granted; (ii) the identity of the law enforcement officer to whom the variation of authority was granted; (iii) particulars of the variations to the original authority that are approved under this section; and (b) must, as soon as practicable, prepare and give to the applicant a written document that complies with section 14 . 14. Form of variation of authority 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 granting the variation of authority; and (c) if the application for the variation is made under section 13(3) , state the name of the applicant; and (d) state whether the application is a formal variation application or was an urgent variation application; and (e) state the date and time when the variation of authority is or was granted; and (f) describe the variation having regard to the purposes referred to in section 13(3) in respect of which the application was made. 15. Cancellation of authorities (1) The chief 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 chief 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. 16. 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; and (c) authorises each participant to engage in that conduct in this jurisdiction or any participating jurisdiction (subject to any corresponding law of that participating jurisdiction). (2) The authority to engage in controlled conduct given to a participant cannot be delegated to any other person. 17. Defect in authority An application for authority or variation of authority, and any authority or variation of authority granted 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. PART 3 - Conduct of Cross-border Controlled Operations Division 1 - Controlled conduct engaged in for purposes of controlled operations authorised by Part 2 18. Protection from criminal responsibility for controlled conduct during authorised operations Despite any other Act or 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 intentionally inducing a person to commit an offence under a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; 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. 19. Indemnification of participants against civil liability (1) This section applies to a law enforcement agency if a controlled operation has been authorised by the chief officer of the agency under section 10 . (2) The law enforcement agency must indemnify a participant in the 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 intentionally inducing a person to commit an offence under a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; 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. 20. Effect of sections 18 and 19 on other laws relating to criminal investigation Sections 18 and 19 do not apply to a person's conduct that is, or could have been, authorised under a law of this jurisdiction relating to the following: (a) arrest or detention of individuals; (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. 21. 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 Part continues to apply to a participant in the operation as if the authority had not been varied in that way, for so long as the participant – (a) is unaware of the variation; and (b) is not reckless about the existence of the variation. (2) If an authority for a controlled operation is cancelled, this Part continues to apply to a participant in the operation as if the authority had not been cancelled, for so long as the participant – (a) is unaware of the cancellation; and (b) is not reckless about the existence of the cancellation. 22. 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 controlled conduct for which the other person would (but for section 18 ) be criminally responsible (the "related controlled conduct"). (2) Despite any other Act or 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 he or she believed the related controlled conduct was being engaged in, or would be engaged in, by a participant in an authorised operation. Division 2 - Compensation and notification of third parties 23. Compensation for property loss or serious damage (1) If a person suffers loss of or serious damage to property as a direct result of an authorised operation conducted by the Police Service, 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 law enforcement officer involved in the authorised operation at the time of suffering the loss or damage. 24. Notification requirements (1) If any loss of or serious damage to property occurs in the course of or as a direct result of an authorised operation (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation), the principal law enforcement officer for the operation must report the loss or damage to the chief officer of the law enforcement agency 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. Division 3 - Mutual recognition 25. 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 10 : (a) section 16 (Effect of authorities); (b) section 17 (Defect in authority); (c) section 18 (Protection from criminal responsibility for controlled conduct during authorised operations); (d) section 19 (Indemnification of participants against civil liability); (e) section 20 (Effect of sections 18 and 19 on other laws relating to criminal investigation); (f) section 21 (Effect of being unaware of variation or cancellation of authority); (g) section 22 (Protection from criminal responsibility for certain ancillary conduct). PART 4 - Compliance and Monitoring Division 1 - Restrictions on use, communication and publication of information 26. Unauthorised disclosure of information (1) A person is guilty of an offence if – (a) the person intentionally, knowingly or recklessly discloses any information; and (b) the person knows that, or is reckless as to whether, the information relates to an authorised operation or a corresponding authorised operation; and (c) the person knows that, or is reckless as to whether, the disclosure is not made –