Measures to Combat Serious and Organised Crime Act 2001 (136 of 2001)
Schedule 1 Controlled Operations
Crimes Act 1914
17 Sections 15H, 15I and 15J
Repeal the sections, substitute:
15H What is a controlled operation?
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; 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 (3), constitute a Commonwealth offence or an offence against a law of a State or Territory.
15HA Meaning of engage in conduct etc.
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.
15HB What is a serious Commonwealth offence ?
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, illegal drug dealings, 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.
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.
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.
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.
15IC Effect of sections 15I and 15IA on other laws relating to criminal investigation
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.
15ID Compensation for loss or injury
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.
15J Application for certificate authorising a controlled operation - by whom and to whom made
(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;
(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 National Crime Authority - any NCA authorising officer.
(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.
(4) The members of the National Crime Authority are NCA authorising officers .