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Crimes Act 1914
Part IAB
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Controlled operations
Division 4
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Compliance and monitoring
SECTION 15HK
Unauthorised disclosure of information
Disclosures by entrusted persons
(1)
A person commits an offence if: (a) the person is, or has been, an entrusted person; and (b) information came to the knowledge or into the possession of the person in the person ' s capacity as an entrusted person; and (c) the person discloses the information; and (d) the information relates to a controlled operation.
(1A)
Strict liability applies to paragraph (1)(a) .
(1B)
A person commits an offence if: (a) the person is, or has been, an entrusted person; and (b) information came to the knowledge or into the possession of the person in the person ' s capacity as an entrusted person; and (c) the person discloses the information; and (d) the information relates to a controlled operation; and (e) either or both of the following subparagraphs apply:
(1C)
Strict liability applies to paragraph (1B)(a) .
Other disclosures
(1D)
A person commits an offence if: (a) the person discloses information; and (b) the information relates to a controlled operation; and (c) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
(1E)
A person commits an offence if: (a) the person discloses information; and (b) the information relates to a controlled operation; and (c) either or both of the following subparagraphs apply:
Exceptions - general
(2)
Subsections (1) to (1E) do not apply if the disclosure was: (a) in connection with the administration or execution of this Part; or (b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or (c) for the purposes of obtaining legal advice in relation to the controlled operation; or (d) in accordance with any requirement imposed by law; or (e) in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.
Exceptions - integrity testing controlled operation authority
(2A)
Subsections (1) to (1E) do not apply, in the case of a controlled operation authorised by an integrity testing controlled operation authority (granted on the basis that an integrity testing authority is in effect), if the disclosure was: (a) in any of the circumstances mentioned in paragraphs (2)(a) to (e) ; or (b) in connection with the administration or execution of Part IABA , or the National Anti-Corruption Commission Act 2022 , in relation to the integrity testing authority; or (c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the controlled operation; or (d) in relation to the integrity testing authority:
Exception - misconduct
(3)
Subsections (1) to (1E) do not apply if: (a) the person (the discloser ) discloses the information to the Ombudsman, the National Anti-Corruption Commissioner or the Inspector of the National Anti-Corruption Commission; and (b) the discloser informs the person to whom the disclosure is made of the discloser ' s identity before making the disclosure; and (c) the information concerns:
Exception - previously published information
(4)
Subsections (1D) and (1E) do not apply to a person disclosing information if: (a) the information has already been communicated, or made available, to the public (the prior publication); and (b) the person was not involved in the prior publication (whether directly or indirectly); and (c) at the time of the disclosure, the person believes that the disclosure:
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Hide history noteHistory
Parts IAB, IAC and IACA substituted for Parts IAB and IAC, by No 3 of 2010, s 3 and Sch 3 item 10, effective 20 February 2010. No 3 of 2010, s 3 and Sch 3 items 11 to 20, contain the following application and transitional provisions:
Part 2 - Provisions relating to pre-commencement authorisations under State controlled operations law
11 Relationship to other laws and matters
(1)
Subject to this item and item 15, 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, subject to subitem (5), to be disregarded if:
(a) the person was a participant in an operation authorised before commencement under a State controlled operations law, acting in the course of that operation; and
(b) the criminal activity was conduct constituting an offence for which a person would, but for item 12, be criminally responsible.
(3)
This item applies to criminal activity engaged in before, on or after commencement.
(4)
This item applies to the following:
(a) proceedings that were instituted before commencement, but have not been completed as at commencement;
(b) proceedings instituted on or after commencement;
(c) subject to subitem (5) - appeals arising from proceedings instituted before, on or after commencement.
(5)
Despite subitem (4), if a court has determined before commencement that particular evidence be excluded, this item does not provide a ground of appeal against that determination.
12 Protection from criminal responsibility for conduct engaged in before, on or after commencement under a pre-commencement State authorisation
(1)
This item applies to a participant in an operation authorised under a State controlled operations law if:
(a) the operation was authorised before commencement; and
(b) the participant engaged in conduct, whether before, on or after commencement, in the course of, and for the purposes of, the operation; and
(c) engaging in that conduct was a Commonwealth offence.
(2)
Despite any other law of the Commonwealth, the participant is not criminally responsible for the Commonwealth offence, if:
(a) the conduct was authorised by, and was engaged in in accordance with, the authority to conduct the controlled operation; and
(b) the conduct did not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and
(c) the conduct did not involve the participant engaging in any conduct that was 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 person is a civilian participant in the operation - he or she acts in accordance with the instructions of a law enforcement officer.
(3)
Expressions used in this item have the same meanings as in the State controlled operations law under which the operation was authorised.
13 Effect of item 12 on other laws relating to criminal investigation
13
Item 12 does not apply to a person's conduct that is, or could have been, authorised under a Commonwealth law or a law of a State or Territory 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 procedure;
(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. 14 Protection from criminal responsibility for certain ancillary conduct
(1)
This item applies if:
(a) a person engaged in conduct (the ancillary conduct ), whether before, on or after commencement, that related to conduct (the related conduct ) that:
(i) was engaged in before, on or after commencement by another person; and
(ii) constituted an offence for which a person would, but for item 12, be criminally responsible; and
(b) engaging in the ancillary conduct was or is an ancillary offence (within the meaning of the Criminal Code ) in relation to the offence constituted by the related conduct.
(2)
Despite any law of the Commonwealth, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence if, at the time the person engaged in the ancillary conduct, he or she believed the related conduct was being engaged in, or would be engaged in, by a participant in an operation authorised before commencement under a State controlled operations law.
(3)
Expressions used in this item have the same meanings as in the State controlled operations law under which the person believed the controlled conduct was being engaged in.
15 Evidence of authorities
15
A document purporting to be an authority granted under a State controlled operations law:
(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 he or she was required to be satisfied of to grant the authority. 16 Definitions
16
In this Part:commencement
means the commencement of this item.State controlled operations law
means:
(a) a law of a State or Territory; or
(b) a provision or provisions of a law of a State or Territory;prescribed by the regulations for the purposes of this definition.
Part 3 - General application and transitional provisions
17 Controlled operations authorised before commencement continue under old law
(1)
Despite the repeals and amendments made by this Part, the Crimes Act 1914 , as in force immediately before the commencement of this item, continues to apply after that commencement, in relation to a pre-commencement controlled operation, as if those repeals and amendments had not happened.
(2)
In this item:pre-commencement controlled operation
means a controlled operation authorised under Part 1AB of the Crimes Act 1914 before the commencement of this item, whether or not the pre-commencement controlled operation had been completed as at that commencement.
18 Controlled operations - continuation of Division 3 of Part 1AB
18
Despite the repeal of Division 3 of Part 1AB of the Crimes Act 1914 by this Part, that Division, as in force immediately before the commencement of this item, is taken to continue in effect as if it had not been repealed. 19 Assumed identities - authorisations taken to be authority under new law
(1)
This item applies to an authorisation that was granted under section 15XG of the Crimes Act 1914 immediately before the commencement of this item.
(2)
The authorisation has effect, after the commencement of this item, as if it were an authority granted under section 15KB as inserted by this Schedule.
20 Assumed identities - continuation of old law in relation to States without corresponding laws
(1)
Despite the repeal of Part 1AC of the Crimes Act 1914 by this Schedule:
(a) section 15XH of that Act, as in force immediately before the commencement of this item, continues in effect after that commencement, in relation to a State or Territory that is not a participating jurisdiction, as if that repeal had not happened; and
(b) that Part, and any other provision of the Crimes Act 1914 that relates to the operation of that Part, continues in effect in relation to authorisations under that Part and assumed identities acquired or used under such authorisations as if that repeal had not happened.
(2)
In this item:participating jurisdiction
has the same meaning as in section 15K of the Crimes Act 1914 , as in force immediately after the commencement of this item.
Part IAB formerly read:
Part 1AB - Controlled operations for obtaining evidence about Commonwealth offences
Division 1 - Objects of Part
SECTION 15G Objects of Part
(1)
The objects of this Part are:
(a) to exempt from criminal liability, and to indemnify from civil liability:
(i) law enforcement officers who, in the course of a controlled operation authorised as provided under this Part; andtake an active part, or are otherwise involved, in the commission of a Commonwealth offence or an offence against a law of a State or Territory; and
(ii) certain other persons who, when authorised by a law enforcement officer and in the course of a controlled operation authorised as provided under this Part;
(b) to require:
(i) the Commissioner, the Integrity Commissioner and the Chief Executive Officer of the ACC to report to the Minister on requests to authorise controlled operations and on the action taken in respect of controlled operations authorised under this Part; and
(ii) the Minister to report on these matters to Parliament; and
(c) to provide that evidence of importation of narcotic goods obtained through a controlled operation:
(i) started before the commencement of this Part; andis not to be rejected because of the unlawful conduct of law enforcement officers who took an active part, or were otherwise involved, in the importation of the narcotic goods.
(ii) in which the Australian Federal Police and the Australian Customs Service acted in concert to allow the narcotic goods to pass through the Customs;HistoryS 15G(1) amended by No 86 of 2006, s 3 and Sch 1 item 16, by inserting " , the Integrity Commissioner " after " the Commissioner " in para (b)(i), effective 30 December 2006.
S 15G(1) amended by No 125 of 2002.
S 15G(1) amended by No 135 of 2001.
S 15G(1) amended by No 136 of 2001.
(2)
Subject to section 15X , this Part is not intended to limit a discretion that a court has:
(a) to admit or exclude evidence in criminal proceedings; or
(b) to stay criminal proceedings in the interests of justice.HistoryS 15G(2) amended by No 136 of 2001.
SECTION 15GA SECTION 15GA Concurrent operation of State and Territory laws
15GA
It is the Parliament's intention that a law of a State or Territory should be able to operate concurrently with this Part unless the law is directly inconsistent with this Part.HistoryS 15GA inserted by No 136 of 2001.
Division 2 - General
SECTION 15H SECTION 15H What is a controlled operation?
15H
A controlled operation is an operation that:
(a) involves the participation of law enforcement officers; and
(b) is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and
(c) may involve a law enforcement officer or other person in acts, or omissions to act, that would, apart from subsection 15I(1) or (2) , constitute a Commonwealth offence or an offence against a law of a State or Territory.HistoryS 15H amended by No 64 of 2004, s 3 and Sch 3 item 10, by inserting ``or a serious State offence that has a federal aspect'' after ``serious Commonwealth offence'' in para (b), effective 22 December 2004.
S 15H amended by No 62 of 2004, s 3 and Sch 1 item 13, by substituting ``subsection 15I(1) or (2)'' for ``subsection 15I(1) or (3)'' in para (c), effective 27 May 2004.
S 15H to 15J substituted for s 15H to 15J by No 136 of 2001.
SECTION 15HA SECTION 15HA Meaning of engage in conduct etc.
15HA
In this Part:
(a) a reference to engaging in conduct includes a reference to omitting to act; and
(b) a reference to a person's conduct includes a reference to the person's omissions.SECTION 15HB What is a serious Commonwealth offence or a serious State offence that has a federal aspect ?HistoryS 15H to 15J substituted for s 15H to 15J by No 136 of 2001.
(1)
For the purposes of this Part, serious Commonwealth offence means an offence against a law of the Commonwealth:
(a) that involves theft, fraud, tax evasion, currency violations, controlled substances, illegal gambling, obtaining financial benefit by vice engaged in by others, extortion, money laundering, perverting the course of justice, bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory, bankruptcy and company violations, harbouring of criminals, forgery including forging of passports, armament dealings, illegal importation or exportation of fauna into or out of Australia, espionage, sabotage or threats to national security, misuse of a computer or electronic communications, people smuggling, slavery, piracy, the organisation, financing or perpetration of sexual servitude or child sex tourism, dealings in child pornography or material depicting child abuse, importation of prohibited imports or exportation of prohibited exports, or that involves matters of the same general nature as one or more of the foregoing or that is of any other prescribed kind; and
(b) that is punishable on conviction by imprisonment for a period of 3 years or more.HistoryS 15HB(1) amended by No 129 of 2005, s 3 and Sch 1 item 3, by substituting ``controlled substances'' for ``illegal drug dealings'' in para (a), effective 6 December 2005.
(1A)
Without limiting subsection (1), an offence against section 474.19 , 474.20 , 474.22 , 474.23 , 474.26 or 474.27 of the Criminal Code is a serious Commonwealth offence for the purposes of this Part.HistoryS 15HB(1A) inserted by No 9 of 2006, s 3 and Sch 1 items 11 and 12, effective 23 March 2006. This replaces former s 15HB(2) second occurring (of the same wording) inserted by No 127 of 2004, s 3 and Sch 1 item 3, effective 1 March 2005.
(2)
For the purposes of this Part, serious State offence that has a federal aspect means a State offence that has a federal aspect and that has the characteristics of a serious Commonwealth offenceHistoryS 15HB(2) inserted by No 64 of 2004, s 3 and Sch 3 item 11, effective 22 December 2004.
S 15H to 15J substituted for s 15H to 15J by No 136 of 2001.
SECTION 15I Law enforcement officers etc. not liable for offences committed for purposes of authorised controlled operation
(1)
A law enforcement officer who engages in conduct that, apart from this subsection, would constitute a Commonwealth offence or an offence against a law of a State or Territory is not criminally responsible for that offence if:
(a) he or she engages in that conduct in the course of duty for the purposes of a controlled operation; and
(b) the conduct meets the requirements of subsection 15IB(1) .
(2)
A person who is not a law enforcement officer and who engages in conduct that, apart from this subsection, would constitute a Commonwealth offence or an offence against a law of a State or Territory is not criminally responsible for that offence if:
(a) he or she engages in that conduct for the purposes of a controlled operation; and
(b) a law enforcement officer has authorised the person to engage in that conduct; and
(c) the conduct meets the requirements of subsection 15IB(2) .
(2A)
Subsection (2) does not apply to a person who:
(a) is an informant of a law enforcement officer; or
(b) is believed to have been involved, other than for law enforcement purposes, in the criminal activity in respect of which the controlled operation was authorised.
(3)
The fact that, because of subsection (1) or (2), a person whose conduct is covered by a certificate given under section 15M is not criminally responsible for an offence does not affect the liability, for that offence or any other offence, of any person whose conduct is not covered by the certificate.
(4)
Subsection (3) applies despite any provision of Chapter 2 of the Criminal Code to the contrary.
(5)
If:
(a) the importation of goods of a particular kind into Australia is an offence against a law of the Commonwealth; and
(b) a person imports goods of that kind into Australia; and
(c) because of this section, that person is not liable for an offence against that law in respect of the importation; and
(d) that law provides for another consequence, other than that person's criminal liability, to arise from the importation (for example, forfeiture of the goods);this section does not prevent that consequence from arising under that law.
(6)
For the purposes of this section, a member of a police force or other law enforcement agency of a foreign country is taken to be acting in the course of duty to the extent that he or she takes part in the controlled operation in accordance with the instructions given by an Australian law enforcement officer.HistoryS 15H to 15J substituted for s 15H to 15J by No 136 of 2001.
SECTION 15IA Indemnification of law enforcement officers etc.
(1)
The Commonwealth must indemnify a law enforcement officer against any liability (including reasonable costs) the officer incurs because of conduct the officer engages in if:
(a) he or she engages in that conduct in the course of duty for the purposes of a controlled operation; and
(b) the conduct meets the requirements of subsection 15IB(1) ; and
(c) the requirements (if any) specified in the regulations have been met.
(2)
The Commonwealth must indemnify a person who is not a law enforcement officer against any liability (including reasonable costs) the person incurs because of conduct the person engages in if:
(a) he or she engages in that conduct for the purposes of a controlled operation; and
(b) a law enforcement officer has authorised the person to engage in that conduct; and
(c) the conduct meets the requirements of subsection 15IB(2) ; and
(d) the requirements (if any) specified in the regulations have been met.
(2A)
Subsection (2) does not apply to a person who:
(a) is an informant of a law enforcement officer; or
(b) is believed to have been involved, other than for law enforcement purposes, in the criminal activity in respect of which the controlled operation was authorised.
(3)
For the purposes of this section, a member of a police force or other law enforcement agency of a foreign country is taken to be acting in the course of duty to the extent that he or she takes part in the controlled operation in accordance with the instructions given by an Australian law enforcement officer.HistoryS 15H to 15J substituted for s 15H to 15J by No 136 of 2001.
SECTION 15IB Requirements that must be met for the purposes of sections 15I and 15IA
(1)
A law enforcement officer's conduct relating to a controlled operation meets the requirements of this subsection if:
(a) at the time when he or she engages in that conduct there is in force a certificate given under section 15M that authorises the operation; and
(b) the conduct is within the nature of the activities covered by the certificate; and
(c) the conduct does not breach any conditions to which the certificate is subject; and
(d) the conduct does not involve intentionally inducing a person to commit a Commonwealth offence, or an offence against a law of a State or Territory, if that person would not otherwise have intended to commit:
(i) that offence; or
(ii) an offence of that kind; and
(e) the conduct does not involve the commission of a sexual offence against any person or an offence involving the death of or serious injury to any person.
(2)
Any other person's conduct relating to a controlled operation meets the requirements of this subsection if:
(a) at the time when he or she engages in that conduct there is in force a certificate given under section 15M that authorises the operation; and
(b) the certificate identifies the person as being permitted to be involved in the operation; and
(c) the conduct is within the nature of the activities covered by the certificate; and
(d) the conduct does not breach any conditions to which the certificate is subject; and
(e) the conduct does not involve intentionally inducing a person to commit a Commonwealth offence, or an offence against a law of a State or Territory, if that person would not otherwise have intended to commit:
(i) that offence; or
(ii) an offence of that kind; and
(f) the conduct does not involve the commission of a sexual offence against any person or an offence involving the death of or serious injury to any person.HistoryS 15H to 15J substituted for s 15H to 15J by No 136 of 2001.
SECTION 15IC SECTION 15IC Effect of sections 15I and 15IA on other laws relating to criminal investigation
15IC
Sections 15I and 15IA do not apply to a person's conduct that is authorised, or could have been authorised, under a law of the Commonwealth, a State or a Territory relating to:
(a) arrest or detention of individuals; or
(b) searches of individuals; or
(c) entry onto, or searches or inspections of, premises; or
(d) searches, inspections or seizures of other property; or
(e) forensic procedures; or
(f) electronic surveillance devices or telecommunications interception; or
(g) identification procedures; or
(h) any other matter concerning powers of criminal investigation.HistoryS 15H to 15J substituted for s 15H to 15J by No 136 of 2001.
SECTION 15ID SECTION 15ID Compensation for loss or injury
15ID
Where a person suffers loss or injury as a result of a controlled operation, the Commonwealth is liable to pay to the person who has suffered the loss or injury such compensation as is agreed on between the Commonwealth and that person or, in default of agreement, is determined by action against the Commonwealth in a court of competent jurisdiction.SECTION 15J Application for certificate authorising a controlled operation - by whom and to whom madeHistoryS 15H to 15J substituted for s 15H to 15J by No 136 of 2001.
(1)
An Australian law enforcement officer may apply to an authorising officer for a certificate authorising a controlled operation.
(2)
Any of the following is an authorising officer for the controlled operation:
(a) if the operation is a major controlled operation that relates to investigating a serious Commonwealth offence, or a possible serious Commonwealth offence, the investigation of which is within the functions of the Australian Federal Police - the Commissioner or a Deputy Commissioner;
(b) if the operation is not a major controlled operation but relates to investigating a serious Commonwealth offence, or a possible serious Commonwealth offence, the investigation of which is within the functions of the Australian Federal Police - any AFP authorising officer;
(ba) if the operation relates to the investigation of a corruption issue (within the meaning of the Law Enforcement Integrity Commissioner Act 2006 ) concerning conduct that involves a serious Commonwealth offence or possible conduct that would involve a serious Commonwealth offence - any ACLEI authorising officer;
(c) if the operation relates to investigating a serious Commonwealth offence, or a possible serious Commonwealth offence, the investigation of which is within the functions of the ACC - any ACC authorising officer.HistoryS 15J(2) amended by No 86 of 2006, s 3 and Sch 1 item 17, by inserting para (ba), effective 30 December 2006.
S 15J(2) amended by No 125 of 2002.
(2A)
A major controlled operation is a controlled operation that is likely to:
(a) involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days; or
(b) continue for more than 3 months; or
(c) be directed against suspected criminal activity that includes a threat to human life.
(3)
The following are AFP authorising officers :
(a) the Commissioner;
(b) a Deputy Commissioner;
(c) a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this paragraph.
(3A)
The following are ACLEI authorising officers :
(a) the Integrity Commissioner;
(b) an Assistant Integrity Commissioner;
(c) a staff member of ACLEI who is an SES employee and who is authorised in writing by the Integrity Commissioner for the purposes of this paragraph.HistoryS 15J(3A) inserted by No 86 of 2006, s 3 and Sch 1 item 18, effective 30 December 2006.
(4)
The following are ACC authorising officers :
(a) the Chief Executive Officer of the ACC;
(b) a member of the staff of the ACC who is an SES employee and who is authorised in writing by the Chief Executive Officer of the ACC for the purposes of this paragraph.HistoryS 15J(4) substituted by No 125 of 2002
S 15H to 15J substituted for s 15H to 15J by No 136 of 2001.
Act No 136 of 2001, s 3 and Sch 1 item 18, contained the following transitional provision:
Transitional provision-pending applications
(1)
Any application for a certificate authorising a controlled operation:
(a) that was made before 12 October 2001; and
(b) about which a decision was not made before that commencement;ceases to have effect on that commencement.
(2)
However, this item does not prevent a new application being made after that commencement.S 15J formerly read:
Application for certificate authorising a controlled operation - by whom and to whom made
The Australian law enforcement officer who is in charge of a controlled operation may apply to:
(a) the Commissioner, a Deputy Commissioner or a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this section; or
(b) a member of the National Crime Authority;for a certificate authorising the controlled operation.
SECTION 15K SECTION 15K Form and contents of application
15K
Subject to section 15L , an application for a certificate authorising a controlled operation must:
(a) be in writing signed by the applicant; and
(b) state whether any previous application has been made in relation to the operation; and
(c) if any previous application has been made - state whether it was granted or refused; and
(d) contain, or be accompanied by, such information, in writing, as the authorising officer requires to decide whether or not to grant the application. SECTION 15L Urgent applications
(1)
An applicant may make an application under this section for a certificate authorising a controlled operation if he or she has reason to believe that the delay caused by making an application that complies with section 15K may affect the success of the operation.
(2)
The application may be made:
(a) orally in person; or
(b) by telephone; or
(c) by any other means of communication.
(3)
The applicant must give to the authorising officer, either orally or otherwise, such information as the authorising officer requires to decide whether or not to grant the application.
(4)
The applicant must tell the authorising officer:
(a) whether any previous application has been made in relation to the operation; and
(b) if any previous application has been made - whether it was granted or refused.
(5)
If the authorising officer decides to grant the application, the authorising officer must:
(a) immediately inform the applicant of his or her decision orally in person or by telephone or any other means of communication; and
(b) as soon as practicable, give to the applicant a certificate that complies with section 15N .
(6)
The applicant must, as soon as practicable, prepare and give to the authorising officer an application, in writing, that complies with section 15K .
SECTION 15M SECTION 15M On what grounds may a certificate authorising a controlled operation be given?
15M
On receiving an application that complies with section 15K or 15L in relation to a controlled operation, the authorising officer may give a certificate authorising the operation if he or she is reasonably satisfied that:
(a) it is likely that a serious Commonwealth offence has been, is being or will be committed; and
(b) the nature and extent of the offence, and any suspected criminal activity that is related to it, justifies a controlled operation; and
(c) conducting the operation would not involve intentionally inducing a person to commit a Commonwealth offence, or an offence against a law of a State or Territory, if that person would not otherwise have intended to commit:
(i) that offence; or
(ii) an offence of that kind; and
(d) any unlawful activity involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and
(e) the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the operation will be under the control of an Australian law enforcement officer at the end of the operation; and
(f) any unlawful activity involved in conducting 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 loss of, or serious damage to, property (other than illicit goods); and
(g) the operation will be conducted in a way that is consistent with the reporting and accountability requirements of this Part; and
(h) if a person who is not a law enforcement officer is to be involved in the operation - the role to be assigned to the person could not adequately be performed by a law enforcement officer.SECTION 15N Form and contents of certificateHistoryS 15M amended by No 136 of 2001. Act No 136 of 2001, s 3 and Sch 1 item 48 contained the following transitional provision:
Transitional provision - existing certificates
(1)
Part IAB of the Crimes Act 1914 as amended by this Act does not apply to a certificate, given under section 15M of that Act, that was in force immediately before the commencement of this Schedule.
(2)
However, Part IAB of that Act, as in force immediately before that commencement, continues to apply to such a certificate.Paras (a) to (d) formerly read:
(a) the applicant has provided as much information as is available to the applicant about the nature and quantity of narcotic goods to which the operation relates; and
(b) the person targeted by the operation is likely to commit an offence against section 233B of the Customs Act 1901 or an associated offence whether or not the operation takes place; and
(c) the operation will make it much easier to obtain evidence that may lead to the prosecution of the person for such an offence; and
(d) any narcotic goods:
(i) to which the operation relates; andwill be then under the control of an Australian law enforcement officer.
(ii) that will be in Australia at the end of the operation;
(1)
A certificate authorising a controlled operation must be in writing and signed by the authorising officer.
(2)
The certificate must:
(a) state the name of the applicant for the certificate; and
(b) state whether the application for the certificate was made in accordance with section 15K or 15L ; and
(c) give a brief description of the operation that includes (but is not limited to) the following details to the extent to which they are known and are relevant:
(i) the name of the person targeted;
(ii) the nature and quantity of any illicit goods to which the operation relates;
(iii) the foreign countries through which any such illicit goods have passed, or are likely to pass, in the course of the operation;
(iv) the place or places at which any such illicit goods have been, or will be, dealt with by Customs;
(v) if subparagraph (iv) does not apply - the place or places where any such illicit goods have entered, or are likely to enter, into Australia; and
(ca) state the nature of the activities covered by the certificate; and
(cb) identify each person who:
(i) is not a law enforcement officer; and
(ii) is permitted to be involved in the operation; and
(cc) for each person identified, state the nature of the activities covered by the certificate in relation to that person; and
(cd) state any conditions to which the certificate is subject; and
(d) state that the authorising officer authorises the operation to be carried out; and
(e) specify the day on which, and the time when, the certificate was given.HistoryS 15N(2) amended by No 23 of 2009, s 3 and Sch 2 item 16, by substituting " Customs " for " the Australian Customs Service " in para (c)(iv), effective 23 May 2009.
S 15N(2) amended by No 136 of 2001.
(2A)
A person referred to in paragraph (2)(cb) may be identified, for the purposes of that paragraph, by a false name or a code if:
(a) the Commissioner; or
(aa) the Integrity Commissioner; or
(b) the Chief Executive Officer of the ACC;holds a document that enables the person to be identified from that false name or code.
HistoryS 15N(2A) amended by No 86 of 2006, s 3 and Sch 1 item 19, by inserting para (aa), effective 30 December 2006.
S 15N(2A) amended by No 125 of 2002.
S 15N(2A) amended by No 135 of 2001.
S 15N(2A) inserted by No 136 of 2001.
(3)
If the application for the certificate was made under section 15L , the certificate must specify the day on which, and the time when, the applicant was informed of the decision of the authorising officer to give the certificate.
(4)
The certificate may specify a day (not later than 6 months after the day on which it was given) as the day on which the certificate is to cease to be in force.Note:
A certificate must be reviewed in order for it to remain in force longer than 3 months: see section 15OB .
HistoryS 15N(4) amended by No 136 of 2001.
(5)
A failure to comply with this section does not affect the validity of a certificate authorising a controlled operation.
SECTION 15NA Variation of certificate
(1)
An Australian law enforcement officer may apply to an appropriate authorising officer for variation of a certificate given under section 15M .
(2)
The application must:
(a) be in writing signed by the applicant; and
(b) contain, or be accompanied by, such information, in writing, as the appropriate authorising officer requires to decide whether or not to grant the application.
(3)
If the application complies with this section, the appropriate authorising officer may vary the certificate if he or she is reasonably satisfied that:
(a) the certificate as varied could have been given under section 15M ; and
(b) the variation is necessary for:
(i) the success of the controlled operation; or
(ii) the protection of the health or safety of any person; or
(iii) the protection of property from loss or damage; or
(iv) ensuring that all those involved in the operation have appropriate exemption under section 15I and appropriate indemnity under section 15IA .
(4)
The appropriate authorising officer must give the applicant a written notice:
(a) stating whether the certificate is varied; and
(b) if the certificate is varied - setting out each variation.
(5)
A variation of the certificate takes effect when the notice is given.HistoryS 15NA inserted by No 136 of 2001.
SECTION 15O Surrender of certificate
(1)
The Australian law enforcement officer in charge of a controlled operation authorised by a certificate given under section 15M may surrender the certificate by sending to the authorising officer a notice in writing signed by him or her to the effect that he or she surrenders the certificate.
(2)
The notice must specify the time when the notice is to have effect.
SECTION 15OA Termination of certificate
(1)
Any AFP authorising officer may terminate a certificate given under section 15M by that or any other AFP authorising officer.
(1A)
Any ACLEI authorising officer may terminate a certificate given under section 15M by that or any other ACLEI authorising officer.HistoryS 15OA(1A) inserted by No 86 of 2006, s 3 and Sch 1 item 20, effective 30 December 2006.
(2)
Any ACC authorising officer may terminate a certificate given under section 15M by that or any other ACC authorising officer.HistoryS 15OA(2) amended by No 125 of 2002.
(4)
The AFP authorising officer, ACLEI authorising officer or ACC authorising officer (as the case requires) must send written notice of the termination to the Australian law enforcement officer in charge of the controlled operation to which the certificate relates.HistoryS 15OA(4) amended by No 86 of 2006, s 3 and Sch 1 item 21, by inserting " , ACLEI authorising officer " after " AFP authorising officer " , effective 30 December 2006.
S 15OA(4) amended by No 125 of 2002.
(5)
The notice:
(a) must state that the certificate is terminated; and
(b) must be signed by the AFP authorising officer, ACLEI authorising officer or ACC authorising officer (as the case requires); and
(c) must specify the time when the notice is to have effect.HistoryS 15OA(5) amended by No 86 of 2006, s 3 and Sch 1 item 22, by inserting " , ACLEI authorising officer " after " AFP authorising officer " in para (b), effective 30 December 2006.
S 15OA(5) amended by No 125 of 2002.
S 15OA inserted by No 136 of 2001.
SECTION 15OB Expiry of certificate after 6 months or 3 months
(1)
A certificate given under section 15M expires at the end of the period of 6 months after the day on which it was given, unless subsection (2) applies.
(2)
A certificate given under section 15M expires at the end of the period of 3 months after the day on which it was given unless, during the period, a nominated Tribunal member has:
(a) reviewed the certificate; and
(b) decided that the certificate should be in force for 6 months.Note:
A certificate can also cease to be in force after a time specified in the certificate: see pararaph 15P(3) (a).
(3)
The certificate must be reviewed by a nominated Tribunal member during the last 2 weeks of the period of 3 months after the day on which the certificate was given under section 15M . The nominated Tribunal member must decide whether the certificate should be in force for 6 months.
(4)
The nominated Tribunal member must not decide that the certificate should be in force for 6 months unless he or she is reasonably satisfied as to all the matters referred to in paragraphs 15M (a) to (h).
(5)
The nominated Tribunal member must give written notice of his or her decision on the review to the Australian law enforcement officer in charge of the controlled operation to which the certificate relates.HistoryS 15OB inserted by No 136 of 2001.
SECTION 15OC Who are nominated Tribunal members?
(1)
A nominated Tribunal member is a member of the Administrative Appeals Tribunal in repsect of whom a written nomination by the Minister is in force that permits the member to conduct reviews and to make decisions under section 15OB .
(2)
The Minister must not nominate a person unless the person:
(a) is a Deputy President or full-time senior member; or
(b) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or Territory and has been enrolled for at least 5 years.
(3)
A nominated Tribunal member has, in conducting a review of making a decision under section 15OB , the same protection and immunity that a Justice of the High Court has in relation to a proceeding of that court.HistoryS 15OC inserted by No 136 of 2001.
SECTION 15P Period for which certificate is in force
(1)
If a certificate authorising a controlled operation was given as a result of an application made under section 15L , the certificate is taken to have come into force at the time when the authorising officer told the applicant that he or she had decided to give the certificate.
(2)
In any other case, a certificate authorising the controlled operation comes into force at the time when it was given.
(3)
A certificate remains in force:
(a) if the certificate specifies a day on which it is to cease to be in force - until the end of that day; or
(b) if the certificate is surrendered under section 15O - until the time specified in the surrender notice; or
(c) if the certificate is terminated under section 15OA - until the time specified in the termination notice; or
(d) in any other case - until the certificate expires under section 15OB .HistoryS 15P(3) amended by No 136 of 2001
SECTION 15PA Effect of being unaware etc. of variation, surrender, termination or expiry of certificate
(1)
If a certificate given under section 15M has been varied in a way that limits the scope of the certificate, sections 15I and 15IA continue to apply to a person whose conduct is covered by the certificate, as if the certificate had not been varied in that way, for so long as he or she:
(a) is unaware of the variation; and
(b) is not reckless with respect to the existence of the variation.
(2)
If a certificate given under section 15M ceases to be in force because:
(a) it has been surrendered or terminated; or
(b) it has expired at the end of the period of 3 months after the day on which it was given;sections 15I and 15IA continue to apply to a person whose conduct is covered by the certificate, as if there had been no surrender, termination or expiry, for so long as he or she:
(c) is unaware of the surrender, termination or expiry; and
(d) is not reckless with respect to the existence of the surrender, termination or expiry.
(3)
For the purposes of this section, a person is reckless with respect to the existence of the variation, surrender, termination or expiry of a certificate given under section 15M if:
(a) he or she is aware of a substantial risk that the variation, surrender, termination or expiry existed; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.HistoryS 15PA inserted by No 136 of 2001.
SECTION 15Q Chief Executive Officer of Customs to be notified of certain certificates
(1)
This section applies if:
(a) a certificate authorising a controlled operation is given under section 15M by an AFP authorising officer, an ACLEI authorising officer or an ACC authorising officer; and
(b) the applicant for the certificate believes that illicit goods involved in the conduct of the operation may be dealt with by Customs.HistoryS 159Q(1) amended by No 86 of 2006, s 3 and Sch 1 item 23, by inserting " , an ACLEI authorising officer " after " an AFP authorising officer " in para (a), effective 30 December 2006.
S 15Q(1) amended by No 125 of 2002.
S 15Q(1) substituted by No 136 of 2001
(2)
The applicant for the certificate must, as soon as practicable after the certificate is given, notify the Chief Executive Officer of Customs, or a person nominated by him or her for the purposes of this subsection, in writing of:
(a) the applicant's name; and
(b) the date on which the certificate is given; and
(c) to the extent to which it is known:
(i) the place or places at which the illicit goods will pass into the control of Customs; and
(ii) the time or times when, and the day or days on which, the illicit goods are expected to pass into the control of Customs.HistoryS 15Q(2) amended by No 136 of 2001.
(3)
A failure to comply with this section does not affect the validity of the certificate authorising the controlled operation.
SECTION 15R Quarterly reports to the MinisterHistoryS 15Q amended by No 33 of 2009, s 3 and Sch 2 item 17, by substituting " Customs " for " the Australian Customs Service " (wherever occurring), effective 23 May 2009.
(1)
The Commissioner must, within 2 weeks after the end of each quarter, give to the Minister a report informing the Minister of the following that occurred during the quarter:
(a) each decision by an AFP authorising officer to grant or refuse an application for a controlled operation;
(b) each variation of a certificate under section 15NA by such a person;
(c) each review of a certificate under subsection 15OB(3) that had initially been given by such a person under section 15M ;
(d) each occasion on which a certificate, given by such a person, is surrendered under section 15O or terminated under section 15OA ;
(e) each certificate, given by such a person, that is still in force at the end of the quarter.
(1A)
The Integrity Commissioner must, within 2 weeks after the end of each quarter, give to the Minister a report informing the Minister of the following that occurred during the quarter:
(a) each decision by an ACLEI authorising officer to grant or refuse an application for a controlled operation;
(b) each variation of a certificate under section 15NA by such a person;
(c) each review of a certificate under subsection 15OB(3) that had initially been given by such a person under section 15M ;
(d) each occasion on which a certificate, given by such a person, is surrendered under section 15O or terminated under section 15OA;
(e) each certificate, given by such a person, that is still in force at the end of the quarter.HistoryS 15R(1A) inserted by No 86 of 2006, s 3 and Sch 1 item 24, effective 30 December 2006.
(2)
The Chief Executive Officer of the ACC must, within 2 weeks after the end of each quarter, give to the Minister a report informing the Minister of the following that occurred during the quarter:
(a) each decision by an ACC authorising officer to grant or refuse an application for a controlled operation;
(b) each variation of a certificate under section 15NA by such a person;
(c) each review of a certificate under subsection 15OB(3) that had initially been given by such a person under section 15M ;
(d) each occasion on which a certificate, given by such a person, is surrendered under section 15O or terminated under section 15OA ;
(e) each certificate, given by such a person, that is still in force at the end of the quarter.HistoryS 15R(2) amended by No 125 of 2002.
S 15R(2) amended by No 135 of 2001.
S 15R substituted by No 136 of 2001. Act No 136 of 2001, s 3 and Sch 1 item 41 contained the following transitional provision:
Transitional provision - quarterly reports to the Minister
41
If this Schedule does not commence at the beginning of a quarter, sections 15R and 15S of the Crimes Act 1914 as in force after that commencement do not require the reports relating to the quarter in which that commencement occurred to inform the Minister of:
(a) any decision made before that commencement; and
(b) any certificate given under section 15M of that Act before that commencement; and
(c) any variation, review or expiry of a certificate that occurred before that commencement.However, sections 15R and 15S of that Act as in force immediately before that commencement continue to apply, after that commencement, in relation to any such decision or certificate.
S 15R formerly read:
Minister to be notified of applications for certificate
(1)
As soon as practicable after the Commissioner, a Deputy Commissioner or a senior executive AFP employee authorised in writing under section 15J has made a decision about an application for a certificate authorising a controlled operation, the Commissioner must inform the Minister of that decision and of the reasons for that decision.
(2)
As soon as practicable after a member of the National Crime Authority has made a decision about an application for a certificate authorising a controlled operation, the Chairperson of the Authority must inform the Minister of that decision and of the reasons for that decision.
(3)
The reasons given in support of a decision referred to in subsection (1) or (2) must include (but are not limited to) an indication of the extent to which the authorising officer, in making the decision, took into account the seriousness of the criminal activities of:
(a) the person targeted by the operation; or
(b) any other person associating, or acting in concert, with that person or using, directly or indirectly, the services of that person to further his or her own purposes.
(4)
In subsection (3):criminal activity
means an act or omission that constitutes an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving the possession, importation or exportation of narcotic goods.
SECTION 15S Contents of quarterly reports
(1)
A report under section 15R must:
(a) include the reasons for each of the following decisions that is covered by the report:
(i) each decision referred to in paragraph 15R(1) (a) or (2)(a);
(ii) each variation referred to in paragraph 15R(1) (b) or (2)(b);
(iii) the decision on each review referred to in paragraph 15R(1)(c) or (2)(c) ; and
(b) include sufficient details of:
(i) each surrender or termination of a certificate referred to in paragraph 15R(1) (d) or (2)(d); andto identify the certificate.
(ii) each certificate referred to in paragraph 15R(1) (e) or (2)(e);HistoryS 15S(1), (1A) and (2) substituted for s 15S(1) and (2) by No 136 of 2001. For transitional provision, see note under s 15R.
(1A)
The reasons included in the report for a decision giving a certificate authorising a controlled operation must include an indication of the extent to which the authorising officer, in making the decision, took into account the seriousness of:
(a) the serious Commonwealth offence in relation to which the certificate was given; and
(b) any suspected criminal activity that is related to that offence.HistoryS 15S(1), (1A) and (2) substituted for s 15S(1) and (2) by No 136 of 2001. For transitional provision, see note under s 15R.
(2)
If a controlled operation was carried out, and the certificate relating to the operation ceased to be in force, during the quarter to which the report relates, the report must also:
(a) identify each person targeted by the operation; and
(b) identify each person whose conduct was covered by the certificate, and state whether the person was a law enforcement officer at the time of the operation; and
(c) state the nature of the activities engaged in for the purposes of the operation; and
(d) if the operation involved illicit goods, state, 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
(e) if the operation involved illicit goods that are narcotic goods:
(i) identify the agency to which any law enforcement officer who, in the course of the operation, had possession of the narcotic goods belonged; and
(ii) identify, to the extent known, any person (other than a law enforcement officer) who, in the course of the operation, had possession of the narcotic goods; and
(iii) state whether or not the narcotic goods have been destroyed; and
(iv) if the narcotic goods have not been destroyed - contain the information specified in subsection (3) relating to the possession of the narcotic goods, or state that it is not known who has possession of them.HistoryS 15S(1), (1A) and (2) substituted for s 15S(1) and (2) by No 136 of 2001. For transitional provision, see note under s 15R.
(3)
If the controlled operation involved narcotic goods that have not been destroyed and the identity of the person in whose possession they are is known, the report must:
(a) if the person is a law enforcement officer - identify the agency to which the officer belongs; or
(b) otherwise - identify the person.HistoryS 15S(3) amended by No 136 of 2001. For transitional provision, see note under s 15R.
(4)
(Repealed by No 136 of 2001)
[ CCH Note: Act No 135 of 2001, s 3 and Sch 8 item 4, amends s 15S(4)(b) by substituting ``Chair'' for ``Chairperson'', effective 13 October 2001. Since s 15S(4) was repealed by No 136 of 2001, effective 12 October 2001, this amendment could not be affected.]
(5)
If the person giving the report is of the view that disclosing the identity of a person may:
(a) endanger the safety of the person; or
(b) prejudice an investigation or prosecution;paragraph (2)(b), subparagraph (2)(e)(ii) or paragraph (3)(b) is satisfied if:
(c) a code is used to refer to the person; and
(d) the reason for not disclosing the identity of the person is given.HistoryS 15S(5) amended by No 136 of 2001. For transitional provision, see note under s 15R.
SECTION 15T Minister to table report before Parliament
(1)
The Minister must lay before each House of the Parliament, not later than the first sitting day of that House after 1 October each year, a report about controlled operations that includes the information required by subsection (2).
(2)
Subject to subsections (3) and (4), the report must include (but is not limited to):
(a) the following information in respect of each application for a certificate authorising a controlled operation made in the financial year ending on the previous 30 June:
(i) the date on which the application was made;
(ii) the decision taken about the application;
(iii) the reasons for that decision; and
(b) the information in reports given to the Minister under section 15R during that financial year.HistoryS 15T(2) by No 136 of 2001.
(3)
The report is not to mention any information about a person (including the person's name) that has not already been published about the person.HistoryS 15T(3) amended by No 136 of 2001.
(4)
If, on information given by the Commissioner, the Integrity Commissioner or the Chief Executive Officer of the ACC, the Minister is of the view that it is likely that the inclusion of any information in a report may:
(a) endanger the safety of a person; or
(b) prejudice an investigation or prosecution;the Minister must exclude the information from the report. The Minister must then include that information in the first report laid before the Houses of Parliament after the Minister considers that the information will no longer endanger the safety of the person or prejudice the investigation or prosecution.
HistoryS 15T(4) amended by No 86 of 2006, s 3 and Sch 1 item 25, by inserting " , the Integrity Commissioner " after " the Commissioner " , effective 30 December 2006.
S 15T(4) amended by No 125 of 2002.
S 15T(4) amended by No 135 of 2001.
SECTION 15U Evidentiary certificates
(1)
In a prosecution for a serious Commonwealth offence in respect of which a controlled operation was conducted, a document purporting to be a certificate, given under section 15M , authorising the operation:
(a) may be tendered in evidence; and
(b) is conclusive evidence that the authorising officer who gave the certificate was satisfied as to the facts stated in the document, to the extent that they are facts of a kind that are required under section 15N to be included in a certificate.HistoryS 15U(1) substituted by No 136 of 2001
(2)
A document certified in writing by the Commissioner, the Integrity Commissioner or the Chief Executive Officer of the ACC, as the case may be, to be a true copy of a certificate referred to in subsection (1) may be tendered in evidence in a prosecution referred to in subsection (1) as if it were the original certificate.HistoryS 15U(2) amended by No 86 of 2006, s 3 and Sch 1 item 26, by inserting " , the Integrity Commissioner " after " the Commissioner " , effective 30 December 2006.
S 15U(2) amended by No 125 of 2002.
S 15U(2) amended by No 135 of 2001.
S 15U(2) amended by No 136 of 2001.
Division 2A - Monitoring of controlled operations by the Ombudsman
SECTION 15UA Ombudsman to be notified of certain mattersHistoryDiv 2A inserted by No 136 of 2001.
(1)
Within 2 weeks after the end of each quarter:
(a) the Commissioner; and
(aa) the Integrity Commissioner; and
(b) the Chief Executive Officer of the ACC;must give to the Ombudsman a copy of the report given to the Minister under section 15R for that quarter.
HistoryS 15UA(1) amended by No 86 of 2006, s 3 and Sch 1 item 27, by inserting para (aa), effective 30 December 2006.
S 14UA(1) amended by No 125 of 2002.
(2)
The Ombudsman may require the Commissioner, the Integrity Commissioner or the Chief Executive Officer of the ACC to furnish such information about an application, a certificate, a variation of a certificate or a surrender or termination of a certificate as is necessary for the Ombudsman's proper consideration of it.HistoryS 15UA(2) amended by No 86 of 2006, s 3 and Sch 1 item 28, by inserting " , the Integrity Commissioner " after " the Commissioner " , effective 30 December 2006.
S 15UA(2) amended by No 125 of 2002.
S 15UA inserted by No 136 of 2001.
SECTION 15UB Inspection of records by Ombudsman
(1)
The Ombudsman:
(a) must inspect the records of the Australian Federal Police, the Australian Commission for Law Enforcement Integrity and the ACC in relation to controlled operations at least once every 12 months; and
(b) may inspect the records of the Australian Federal Police, the Australian Commission for Law Enforcement Integrity or the ACC at any time, for the purpose of ascertaining whether the requirements of this Part are being complied with.HistoryS 15UB(1) amended by No 86 of 2006, s 3 and Sch 1 item 29, by inserting " , the Australian Commission for Law Enforcement Integrity " after " the Australian Federal Police " (wherever occurring), effective 30 December 2006.
S 15UB(1) amended by No 125 of 2002.
(2)
Nothing in this section requires the Ombudsman to inspect records in relation to a controlled operation that has not been completed.HistoryS 15UB inserted by No 136 of 2001.
SECTION 15UC Annual reports by Ombudsman
(1)
The Ombudsman must, as soon as practicable after 30 June each year, prepare a report of the Ombudsman's work and activities under this Division during the preceding 12 months and give copies of the report to the President of the Senate and the Speaker of the House of Representatives for presentation to the Senate and the House of Representatives, respectively.
(2)
The report must include, for each law enforcement agency concerned, comments as to the comprehensiveness and adequacy of the reports which were provided to the Parliament by that law enforcement agency.
(3)
Nothing in this section requires participants of the controlled operation to be included in a report for the year if the operation had not been completed 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.HistoryS 15UC inserted by No 136 of 2001.
SECTION 15UD Ancillary matters concerning reports
(1)
A report prepared under this Division must not include any information which, if made public, could reasonably be expected:
(a) to endanger a person's safety; or
(b) prejudice an investigation or prosecution; or
(c) compromise the agency's operational activities or methodologies.
(2)
The Ombudsman must give a copy of any report prepared under this Division to the chief executive officer of the law enforcement agency to which it relates and to the Minister responsible for that agency.HistoryS 15UD inserted by No 136 of 2001.
Division 3 - Controlled operations started before commencement of this Part
SECTION 15V Interpretation
(1)
In this Division, a reference to a controlled operation is a reference to a controlled operation started before the commencement of this Part.
(2)
In this Division:engage in conduct
means:
(a) do an act; or
(b) omit to perform an act.HistoryDefinition of ``engage in conduct'' inserted by No 24 of 2001. For application provisions, see note under s 3BA.
Ministerial Agreement
means the agreement:
(a) concerning the relationship between the Australian Customs Service on the one hand, and the National Crime Authority and the Australian Federal Police on the other, with respect to narcotic drug law enforcement; and
(b) made by the Minister for Industry, Technology and Commerce and the Special Minister of State on 3 June 1987.Regional Director for a State or Territory
means:
(a) a Regional Director for a State or Territory within the meaning of the Customs Act 1901 ; or
(b) a Collector of Customs for a State or Territory within the meaning of the Customs Act 1901 as in force from time to time before 1 July 1995.
SECTION 15W Minister may give certificate about controlled operation that involved unlawful importation of narcotic goods by law enforcement officer
(1)
If:
(a) evidence leading to the prosecution of a person for an offence against section 233B of the Customs Act 1901 or an associated offence was obtained through a controlled operation; and
(b) a law enforcement officer, acting in the course of duty for the purposes of the operation:
(i) imported narcotic goods contrary to paragraph 233B(1)(b) of the Customs Act 1901 ; or
(ii) engaged in conduct contrary to Part 2.4 of the Criminal Code in relation to paragraph 233B(1)(b) of the Customs Act 1901 ; and
(c) for the purposes of the operation:
(i) the Australian Federal Police, by written request signed by one of its members and purported to be made in accordance with the Ministerial Agreement, asked a Regional Director for a State or Territory that the narcotic goods, while subject to the control of the Customs (within the meaning of the Customs Act 1901 ), be exempted from detailed scrutiny by officers of the Australian Customs Service; and
(ii) the request for exemption was granted;the Minister may give a certificate in writing to the effect that, for the purposes of the controlled operation described in the certificate:
(d) a request of the kind referred to in paragraph (c) was made by the person named in the certificate on the day specified in the certificate; and
(e) the request was granted on the day specified in the certificate.HistoryS 15W(1)(b)(ii) substituted by No 24 of 2001. For application provisions, see note under s 3BA.
(2)
In a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, a document purporting to be a certificate given under subsection (1) is, upon mere production, admissible as prima facie evidence of the facts stated in the document.
SECTION 15X Evidence of illegal importation etc. of narcotic goods not to be rejected on ground of unlawful conduct by law enforcement officer
In determining, for the purposes of a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer committed an offence in importing the narcotic goods, or engaged in conduct contrary to Part 2.4 of the Criminal Code in relation to such an offence, is to be disregarded, if:
(a) the law enforcement officer, when committing the offence, was acting in the course of duty for the purposes of a controlled operation; and
(b) for the purposes of the operation:
(i) the Australian Federal Police, by written request signed by one of its members and purported to be made in accordance with the Ministerial Agreement, asked a Regional Director for a State or Territory that the narcotic goods, while subject to the control of the Customs (within the meaning of the Customs Act 1901 ), be exempted from detailed scrutiny by officers of the Australian Customs Service; and
(ii) the request for exemption was granted.HistoryS 15X amended by No 24 of 2001. For application provisions, see note under s 3BA.
Part 1AB heading substituted by No 135 of 2001.
History
Div 4 inserted by No 3 of 2010, s 3 and Sch 3 item 10, effective 20 February 2010. For application and transitional provisions, see note under Part IAB heading.
Disclosures by entrusted persons
(1)
A person commits an offence if: (a) the person is, or has been, an entrusted person; and (b) information came to the knowledge or into the possession of the person in the person ' s capacity as an entrusted person; and (c) the person discloses the information; and (d) the information relates to a controlled operation.
Note: Recklessness is the fault element for paragraphs (1)(b) and (d) - see section 5.6 of the Criminal Code .
Penalty: Imprisonment for 2 years.
History
S 15HK(1) substituted by No 75 of 2018, s 3 and Sch 3 item 2, effective 25 August 2018. S 15HK(1) formerly read:
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to a controlled operation.
(1A)
Strict liability applies to paragraph (1)(a) .
Note: For strict liability, see section 6.1 of the Criminal Code .
History
S 15HK(1A) inserted by No 75 of 2018, s 3 and Sch 3 item 2, effective 25 August 2018.
(1B)
A person commits an offence if: (a) the person is, or has been, an entrusted person; and (b) information came to the knowledge or into the possession of the person in the person ' s capacity as an entrusted person; and (c) the person discloses the information; and (d) the information relates to a controlled operation; and (e) either or both of the following subparagraphs apply:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation;
(ii) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.Note: Recklessness is the fault element for paragraphs (1)(b) and (d) and subparagraph (1B)(e)(ii) - see section 5.6 of the Criminal Code .
Penalty: Imprisonment for 10 years.
History
S 15HK(1B) inserted by No 75 of 2018, s 3 and Sch 3 item 2, effective 25 August 2018.
(1C)
Strict liability applies to paragraph (1B)(a) .
Note: For strict liability, see section 6.1 of the Criminal Code .
History
S 15HK(1C) inserted by No 75 of 2018, s 3 and Sch 3 item 2, effective 25 August 2018.
Other disclosures
(1D)
A person commits an offence if: (a) the person discloses information; and (b) the information relates to a controlled operation; and (c) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Note: Recklessness is the fault element for paragraphs (1D)(b) and (c) - see section 5.6 of the Criminal Code .
Penalty: Imprisonment for 2 years.
History
S 15HK(1D) inserted by No 75 of 2018, s 3 and Sch 3 item 2, effective 25 August 2018.
(1E)
A person commits an offence if: (a) the person discloses information; and (b) the information relates to a controlled operation; and (c) either or both of the following subparagraphs apply:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation;
(ii) the person knows that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Recklessness is the fault element for paragraph (1E)(b) - see section 5.6 of the Criminal Code .
Penalty: Imprisonment for 10 years.
History
S 15HK(1E) inserted by No 75 of 2018, s 3 and Sch 3 item 2, effective 25 August 2018.
Exceptions - general
(2)
Subsections (1) to (1E) do not apply if the disclosure was: (a) in connection with the administration or execution of this Part; or (b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or (c) for the purposes of obtaining legal advice in relation to the controlled operation; or (d) in accordance with any requirement imposed by law; or (e) in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection - see subsection 13.3(3) of the Criminal Code .
History
S 15HK(2) amended by No 75 of 2018, s 3 and Sch 3 item 3, by substituting " Subsections (1) to (1E) do " for " Subsection (1) does " , effective 25 August 2018.
S 15HK(2) amended by No 194 of 2012, s 3 and Sch 1 item 20, by inserting the note at the end, effective 13 December 2012. For application provision, see note under Pt IABA heading.
Exceptions - integrity testing controlled operation authority
(2A)
Subsections (1) to (1E) do not apply, in the case of a controlled operation authorised by an integrity testing controlled operation authority (granted on the basis that an integrity testing authority is in effect), if the disclosure was: (a) in any of the circumstances mentioned in paragraphs (2)(a) to (e) ; or (b) in connection with the administration or execution of Part IABA , or the National Anti-Corruption Commission Act 2022 , in relation to the integrity testing authority; or (c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the controlled operation; or (d) in relation to the integrity testing authority:
(i) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, an integrity testing operation authorised by the authority; or
(ii) to an authority of the Commonwealth, a State or a Territory, if the disclosure relates to the misconduct of an employee or officer of the authority.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection - see subsection 13.3(3) of the Criminal Code .
History
S 15HK(2A) amended by No 89 of 2022, s 3 and Sch 1 item 59, by substituting " National Anti-Corruption Commission Act 2022 " for " Law Enforcement Integrity Commissioner Act 2006 " in para (b), effective 1 July 2023. For transitional provisions, see note under s 15GF(4) .
S 15HK(2A) amended by No 75 of 2018, s 3 and Sch 3 item 3, by substituting " Subsections (1) to (1E) do " for " Subsection (1) does " , effective 25 August 2018.
S 15HK(2A) inserted by No 194 of 2012, s 3 and Sch 1 item 21, effective 13 December 2012. For application provision, see note under Pt IABA heading.
Exception - misconduct
(3)
Subsections (1) to (1E) do not apply if: (a) the person (the discloser ) discloses the information to the Ombudsman, the National Anti-Corruption Commissioner or the Inspector of the National Anti-Corruption Commission; and (b) the discloser informs the person to whom the disclosure is made of the discloser ' s identity before making the disclosure; and (c) the information concerns:
(i) a corruption issue (within the meaning of the National Anti-Corruption Commission Act 2022 ) or a NACC corruption issue (within the meaning of that Act) in relation to a controlled operation; or
(d) the discloser considers that the information may assist a person referred to in paragraph (a) to perform the person ' s functions or duties; and (e) the discloser makes the disclosure in good faith.
(ii) misconduct in relation to a controlled operation; and
Note:
A defendant bears an evidential burden in relation to the matters in this subsection - see subsection 13.3(3) of the Criminal Code .
History
S 15HK(3) amended by No 89 of 2022, s 3 and Sch 1 items 60 and 61, by substituting " , the National Anti-Corruption Commissioner or the Inspector of the National Anti-Corruption Commission " for " or the Integrity Commissioner " in para (a) and substituting para (c)(i), effective 1 July 2023. For transitional provisions, see note under s 15GF(4) . Para (c)(i) formerly read:
(i) a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act 2006 (see section 7 of that Act) in relation to a controlled operation; or
S 15HK(3) amended by No 75 of 2018, s 3 and Sch 3 item 3, by substituting " Subsections (1) to (1E) do " for " Subsection (1) does " , effective 25 August 2018.
S 15HK(3) amended by No 194 of 2012, s 3 and Sch 1 items 22 and 23, by substituting para (c) and substituting " this subsection " for " subsections (2) and (3) " in the note, effective 13 December 2012. For application provision, see note under Pt IABA heading. Para (c) formerly read:
(c) the information concerns misconduct in relation to a controlled operation; and
Exception - previously published information
(4)
Subsections (1D) and (1E) do not apply to a person disclosing information if: (a) the information has already been communicated, or made available, to the public (the prior publication); and (b) the person was not involved in the prior publication (whether directly or indirectly); and (c) at the time of the disclosure, the person believes that the disclosure:
(i) will not endanger the health or safety of any person; and
(d) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.
(ii) will not prejudice the effective conduct of a controlled operation; and
Note: A defendant bears an evidential burden in relation to the matters in subsection (4) - see subsection 13.3(3) of the Criminal Code .
History
S 15HK(4) inserted by No 75 of 2018, s 3 and Sch 3 item 4, effective 25 August 2018.
History
S 15HK inserted by No 3 of 2010, s 3 and Sch 3 item 10, effective 20 February 2010. For application and transitional provisions, see note under Part IAB heading.
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