House of Representatives

Explanatory Memorandum

Circulated By Authority of the Attorney-General, the Honourable Robert Mcclelland MP

Schedule 3 - Amendments relating to controlled operations, assumed identities and witness identity protection

GENERAL OUTLINE

The purpose of this Schedule is to replace the existing controlled operations, assumed identities and witness identity protection regimes in the Crimes Act 1914 with new regimes based on national model legislation. The laws were developed following the 2002 Leaders Summit on Multi-jurisdictional Crime by the Joint Working Group of the Standing Committee of Attorneys-General (SCAG) and the then Australasian Police Ministers Council. The Joint Working Group Report , Cross-border Investigative Powers for Law Enforcement, was released in November 2003, and the model laws endorsed for implementation by SCAG in 2004.

The intent of the model legislation is to harmonise, as closely as possible, the controlled operations, assumed identities and protection of witness identity regimes across Australia and enable authorisations issued under a regime in one jurisdiction to be recognised in other jurisdictions.

The model laws are intended to enhance the ability of law enforcement agencies to investigate and prosecute multi-jurisdictional criminal activity. This type of crime is becoming increasingly common due to advances in information and communication technology, and the increasing sophistication of organised criminal groups, particularly those involved in terrorism or trans-national crime, including drug trafficking. State and Territory adoption of the model laws will:

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allow an authority for a cross-border controlled operation issued in one jurisdiction to be recognised in other participating jurisdictions, which will permit the movement of State or Territory controlled operatives across the State or Territory border without the need to make a separate application for a controlled operation in the second jurisdiction

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enable a person authorised to acquire and use an assumed identity in one jurisdiction to lawfully acquire evidence of that assumed identity in another jurisdiction, and

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enable a witness identity protection certificate that is issued in one jurisdiction to be recognised in proceedings held in another jurisdiction, which will protect the identity of operatives as they move across State or Territory borders without the need to seek separate certificates.

Controlled operations

A controlled operation is a law enforcement operation in which a person is authorised to engage in unlawful conduct in order to obtain evidence of a serious criminal offence.

The purpose of controlled operations is described on page 1 of the Joint Working Group's February 2003 Discussion Paper on Cross-border investigative powers for law enforcement as follows:

In a controlled operation, instead of seeking to terminate immediately a criminal scheme, law enforcement officers allow the scheme to unfold under controlled conditions. During the process of allowing the scheme to unfold ... [an authorised person] ... may themselves need to commit offences.

Controlled operations are a valuable tool for investigating organised criminal activity because they enable law enforcement officers to infiltrate criminal organisations and to target those in the higher echelons of those organisations.

The new controlled operation regime, which this Schedule will insert as new Part IAB of the Act, will recognise corresponding State and Territory controlled operation laws and provide protection against liability for Commonwealth offences for participants in operations that have been validly authorised under those laws, without requiring a separate Commonwealth authority to be sought for the controlled operation.

As set out above, protection from liability for State and Territory offences will be provided to State and Territory participants in cross-border controlled operations as part of the mutual recognition provisions contained in State and Territory laws implementing the model legislation. However, as these provisions cannot provide protection from liability under Commonwealth law, it is important that Commonwealth laws be enacted to ensure State and Territory operatives engaged in lawful controlled operations are protected against criminal liability for Commonwealth offences.

Differences to the model laws

The new controlled operations regime introduced by this Schedule will differ from the model laws by:

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allowing foreign law enforcement officers, under the control and supervision of an Australian law enforcement agency, to participate in controlled operations. This recognises the unique role of Commonwealth agencies in the investigation of crimes with a foreign aspect

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providing a stronger oversight regime, including a requirement for the Ombudsman to report on its own monitoring of controlled operations, in addition to reporting on the controlled operations activities of law enforcement agencies

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requiring external approval for extensions of operations beyond three months and providing that the maximum duration for a controlled operation is 24 months

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requiring close consultation with Customs in relation to any illicit goods that may be dealt with by that agency, and

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other minor differences to provide additional accountability and take into account the Commonwealth's unique role in national and international law enforcement.

Differences to the existing regime

The new regime will differ from the existing regime in Part IAB of the Act by:

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providing protection from criminal and civil liability to civilians, including informants, who participate in a controlled operation in circumstances where a law enforcement officer could not perform the function to be performed by the civilian

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providing for recognition of State and Territory controlled operation laws

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extending the timeframes for controlled operations (though to a more limited degree than under the model laws) to reflect the need for operational flexibility

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streamlining reporting requirements

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increasing the Ombudsman's inspection powers, and

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prescribing offences for the unauthorised disclosure of information, including aggravated offences where the disclosure endangers the safety of others.

Retrospective protection

The need for reforms to the controlled operations regime was highlighted by the recent High Court decision in Gedeon v Commissioner of the New South Wales Crime Commission [ 2008] HCA 43.

Following the decision in Gedeon, there is real risk that there is insufficient protection for evidence obtained from, and participants in, operations authorised under a State or Territory controlled operations law that may involve the commission of a Commonwealth offence. The new regime introduced by this Schedule will recognise controlled operations authorities issued under corresponding State and Territory laws. This will remove the need to seek separate Commonwealth approval of State and Territory controlled operations that may involve the commission of a Commonwealth offence. The new regime will also provide retrospective protection for evidence obtained from, and participants in, past and existing controlled operations authorised under a State or Territory law that may have involved the commission of a Commonwealth offence.

Assumed identities

An assumed identity is a false identity that is used for the purpose of investigating, or gathering intelligence on, criminal activity, or conducting other intelligence or security activities.

The importance of assumed identities is described on page 85 of the Joint Working Group Discussion Paper as follows:

Assumed identities provide vital protection for undercover operatives engaged in infiltrating organised crime groups or collecting information relevant to national security. Officers need to be able to substantiate an assumed identity with proper identification documents [such as birth certificates, drivers' licence or passport] ... In the absence of a verifiable identity the safety of undercover operatives can be jeopardised.

The new assumed identities regime, which this Schedule will insert as new Part IAC of the Crimes Act, will recognise corresponding State and Territory assumed identities laws and enable a person authorised to acquire and use an assumed identity in one jurisdiction to lawfully acquire evidence of that assumed identity in another jurisdiction. Those laws will also ensure that officers who are authorised under a corresponding State or Territory law to use an assumed identity will be protected from criminal liability under Commonwealth law when using that identity.

The model laws contain mutual recognition provisions to enable a person authorised to acquire and use an assumed identity in one jurisdiction to lawfully acquire evidence of that assumed identity in another jurisdiction. Those laws will also ensure that officers who are authorised under a corresponding State or Territory law to use an assumed identity will be protected from criminal liability under Commonwealth law when using that identity.

Schedule 3 will expand the operation of the model assumed identity laws by extending the legislative scheme beyond law enforcement officers to include intelligence officers and other authorised people (such as foreign law enforcement officers). This recognises the unique role of Commonwealth agencies in national security and intelligence operations, as well as in the investigation of crimes with a foreign aspect.

Schedule 3 will also specifically allow officers of the AFP to obtain assumed identities for the purpose of performing their roles under the NWPP. This is crucial to the operation of the NWPP, as AFP officers are required to assume an alternative identity to protect a witness under the NWPP without bringing attention to the fact that the person is being protected by police.

The new assumed identity provisions will also differ from the model laws by allowing the control of an authority to be transferred between agencies. This is necessary because there may be occasions where, for operational or other reasons, control of an authority for an assumed identity will need to be transferred from one agency to another agency.

Witness identity protection

Undercover operatives may need to give evidence in criminal and civil proceedings. In some cases, it will be necessary to protect the true identity of the operative to ensure their safety (or the safety of his or her family). In other cases, it may be necessary to conceal the operative's real identity to avoid prejudicing current or future investigations or activities relating to security (for example the prevention of espionage or politically motivated violence).

The Joint Working Group Report makes it clear that the model witness identity protection provisions - which allow evidence to be given under a pseudonym - do not result in the operative becoming 'anonymous' or 'secret':

A witness who appears in person to give evidence, who can be cross-examined, whose demeanour can be assessed by the court but whose true name and address are withheld is significantly different from a truly anonymous witness who does not appear and who the defendant cannot place. [page 245]

This is an important distinction to make, as the protection of the witness (or the integrity of an investigation or security activity) must be balanced with an accused person's right to a fair trial in which the credibility of the witness can be properly tested.

In most cases, the credibility of the witness will not depend on the disclosure of his or her real name and address. However, there may exceptional situations in which the credibility of the witness cannot be tested without disclosing their real identity. Accordingly, the court will be able to allow, for example, defence counsel to ask questions which may reveal the witness's true identity in specific circumstances and where it is in the interests of justice to do so.

This Schedule will replace section 15XT of the Act - which provides a broad discretion for a court, tribunal or royal commission to protect the real identity of a witness who is or was using an assumed identity - with a more comprehensive witness identity protection regime based on the model laws.

The new witness identity protection regime, which this Schedule will insert as new Part IACA of the Act, will recognise corresponding State and Territory witness identity protection laws and enable certificates issues in one jurisdiction to be recognised in proceedings held in another jurisdiction. Those laws will ensure that undercover operatives - who often have to work across jurisdictions - will be protected by a certificate issued by their home agency that is recognised in proceedings which may be held in another jurisdiction.

The new regime for witness identity protection will:

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govern the procedures and requirements for giving a witness identification certificate, and the form for that certificate

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allow the court to make orders protecting the witness's identity and for the disclosure of the witness's true identity

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introduce offences for unauthorised disclosures of the witness's identity

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provide for annual reporting requirements on agencies that give certificates, and

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facilitate the mutual recognitions of certificates given under corresponding State and Territory laws.

One of the key differences between the old and new regimes is that the protections will extend to operatives who are participants in a controlled operation authorised under Part IAB of the Act. This recognises the need to protect operatives who are involved in covert investigations who may not use an assumed identity.

While the new regime for witness identity protection is substantially based on the model laws, some modifications have been made. This includes extending the witness identity protection provisions to foreign law enforcement officers granted an assumed identity. This reflects the expansion of the assumed identity regime (also introduced by this Schedule) to include persons other than domestic law enforcement officers.

The witness identity protection provisions will only apply to operatives and will not affect the protections available to other types of witnesses.

Part 1 - Main amendments

Crimes Act 1914

Items 1 to 9 - Subsection 3(1)

This item will repeal definitions from the Crimes Act that apply to the current controlled operations regime and are not required for other purposes in the Crimes Act.

Item 10 - Parts IAB and IAC

This item will repeal the current Parts IAB and IAC of the Crimes Act, which contain the current controlled operations and assumed identities regimes. In substitution, it will insert new Parts IAB, IAC and IACA, which set out the revised controlled operations, assumed identities and witness identity protection regimes.

Part IAB - Controlled operations

Division 1-Preliminary

15G Objects of Part

This section will set out the main objects of the new controlled operations regime, which are:

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to establish a comprehensive regulatory scheme for authorising, conducting and monitoring Commonwealth controlled operations

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to exempt law enforcement and civilian participants in controlled operations from criminal liability, and to indemnify them from civil liability, for conduct engaged in as part of an authorised controlled operation, and

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to ensure protection for participants in, and evidence obtained from, operations authorised under a State or Territory law that may have involved the commission of a Commonwealth offence.

15GA Relationship to other laws and matters

Courts have a general discretion to exclude evidence that was obtained through unlawful conduct. A crucial feature of controlled operations is that they often involve conduct that would otherwise amount to the commission of an offence. Section 15GA will prevent evidence obtained as a result of criminal activity undertaken as part of a controlled operation from being automatically excluded in court proceedings. This provision is necessary to ensure that evidence obtained from a properly authorised controlled operation can be used in prosecutions without being subject to challenge on the ground that it was obtained through the commission of an offence.

Subsection 15GA(1) will preserve the general judicial discretion to admit or exclude evidence or stay proceedings, except to the extent that these discretions are expressly restricted as part of the new controlled operations regime.

Subsection 15GA(2) will clarify that a court should not apply its discretion to exclude evidence obtained during a controlled operation solely because it was obtained through the commission of an unlawful act, provided that the unlawful act was undertaken within the scope of the controlled operation authority.

Paragraph 15GA(2)(a) will protect evidence obtained through controlled operations validly authorised under this new Part IAB of the Crimes Act. Paragraph 15GA(2)(b) reflects the mutual recognition elements of the model legislation and protects evidence obtained through controlled operations validly authorised under 'a corresponding State controlled operations law'.

'A corresponding State controlled operations law' will be defined at section 15GC as a law of a State or Territory that is prescribed in regulations made under the Crimes Act. The prescribed laws will be State and Territory laws that are based on, or are substantially similar to, the model legislation.

This recognition of State and Territory controlled operations laws is necessary to ensure that, following the High Court Decision in Gedeon, State and Territory law enforcement agencies are not required to seek simultaneous Commonwealth authority for controlled operations authorised under the State or Territory laws. This would be administratively complex and burdensome and defeat the purpose of the legislation, which is to allow separate regimes for State and Territory controlled operations.

Retrospective protection will also be provided for evidence obtained from controlled operations authorised under State or Territory controlled operations law before the commencement of the new regime (see Part 2 of this Schedule).

15GB Concurrent operation of State and Territory laws

Section 15GB will provide that this new Part IAB of the Crimes Act is not to apply to the exclusion of a law of a State or Territory to the extent that the State or Territory law is capable of operating concurrently with this Part. This is important to enable cross-recognition of State and Territory controlled operations laws and ensure that States and Territories are able to independently conduct their own controlled operations.

15GC Definitions

Section 15GC will define terms associated with the new controlled operations regime. The key definitions will be:

appropriate authorising officer - A number of agencies can be involved in controlled operations under this Part of the Crimes Act. However, only certain agencies - the Australian Federal Police (AFP), the Australian Crime Commission (ACC) and the Australian Commission for Law Enforcement Integrity (ACLEI) - can grant the authority that allows a controlled operation to commence.

'Authorising officer' will be defined at section 15GF. An authorising officer will be responsible for granting or refusing an authority to conduct a controlled operation, where the investigation of the offence to which the controlled operation relates comes within the functions of that authorising officer's agency (i.e. the AFP, the ACC or ACLEI).

An 'appropriate authorising officer' will be an authorising officer from the same agency as the authorising officer. An appropriate authorising officer will be able to authorise a variation of the conditions of a controlled operation or extend its duration up to three months if the controlled operation was originally authorised by an officer of the same agency. For example, if the controlled operation relates to the functions of the ACC and was originally authorised by an ACC authorising officer, an authorising officer from the ACC would be an appropriate authorising officer for the controlled operation, while an officer from ACLEI would not. This will ensure that the agency that initially authorised the controlled operation maintains responsibility and accountability for the operation.

authorising agency for an authorised controlled operation will be the agency whose authorising officer (defined at new section 15GF) granted the authority for the controlled operation (defined at new section 15GI). For example, if an AFP authorising officer granted the authority, the AFP would be the authorising agency.

Only the AFP, the ACC and ACLEI will be authorising agencies under the new controlled operation regime.

authority will mean an authority granted under new section 15GI. The authority will be the document or communication issued by an authorising officer (defined at new section 15GF) that authorises the controlled operation and any conduct that, in the absence of the authority, would be unlawful.

chief officer will mean the head of a 'law enforcement agency' (as defined in this section 15GC). The chief officers will be as follows:

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in relation to the AFP, the Commissioner

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in relation to the police force of a State or Territory, the Commissioner of Police in that police force or the person holding equivalent rank

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in relation to Customs, the Chief Executive Officer of Customs

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in relation to the ACC, the Chief Executive Officer of the ACC, and

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in relation to the ACLEI, the Integrity Commissioner.

A chief officer of an 'authorising agency' (as defined in this section 15GC, only the AFP, the ACC and ACLEI are authorising agencies) will have the following responsibilities under the new controlled operations regime:

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authorising controlled operations (along with other authorising officers) (section 15GI)

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ensuring that record keeping requirements are met (section 15HP)

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submitting a six-monthly report on controlled operations to the Commonwealth Ombudsman and the Minister (section 15HM)

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submitting an annual report on controlled operations to the Minister (section 15HN), and

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notifying a person who suffers loss of or serious damage to property, or personal injury, that the loss, damage or injury was caused in the course of or as a direct result of a controlled operation (section 15HG).

civilian participant will be a person, other than a law enforcement officer, who has been authorised to participate in the controlled operation by an authorising officer under new section 15GI or15GO. This will include informants, and people who have specialised expertise or hold particular positions, such as people who are responsible for critical infrastructure (such as airports). Paragraphs 15GI(2)(h) and 15GQ(2)(h) will provide that civilians may only be authorised to participate in a controlled operation where the authorising officer (defined at section 15GF) is satisfied on reasonable grounds that a law enforcement officer could not adequately perform the role that the civilian will perform.

The current controlled operation regime allows civilians, including informants, to participate in controlled operations. However, it does not provide protection from criminal and civil liability for authorised conduct engaged in by informants as part of a controlled operation. This has hampered the ability of law enforcement agencies to use informants to perform controlled conduct, which has presented a significant obstacle to law enforcement agencies in successfully conducting controlled operations. As organised criminal groups have developed sophisticated counter intelligence capability to protect their criminal activity, and are increasingly aware of law enforcement methods and technical capability, the use of informants has become critical to the successful investigation of some criminal groups, particularly those involved in terrorism and transnational crime.

As organised criminal groups may only trust established members of their group, infiltration by undercover officers may only be possible with the ongoing assistance of an informant. In these cases, the members of the criminal organisations may trust an informant to carry out certain acts, such as sourcing a warehouse for storing illicit goods, in circumstances where they would not trust an undercover operative. It is also often necessary for informers to participate in criminal conduct in order to maintain the trust of, and their position in, the criminal group. These acts could be as simple as moving a suitcase containing drugs from the boot of a car to a premises. Informants who might be willing to assist law enforcement agencies if they were protected from liability for certain approved conduct are unlikely to provide that assistance if they cannot receive any protection from criminal liability.

Allowing informants to assist law enforcement officers in a controlled operation enables ongoing monitoring of the activities of the target criminal groups and is more likely to result in law enforcement obtaining key information and evidence from the controlled operation. This legislation will not provide immunity for past criminal offences that informants may have committed. Informants will only receive protection from liability for conduct that they have been authorised to undertake as part of a controlled operation.

For operational efficiency, the decision about whether to include informants and other civilians in a controlled operation will rest with the law enforcement agency.

New section 15GK will provide that an authority to conduct a controlled operation must detail the particular 'controlled conduct' (if any) that a civilian may undertake, but is only required to state the 'nature' of the controlled conduct in which a law enforcement officer may engage. This will ensure that the behaviour of civilian participants is tightly controlled, while allowing some latitude to law enforcement officers to address operational contingencies as they arise.

Whereas law enforcement officers can be authorised to engage in 'controlled conduct' (defined at section 15GC) of a specified 'nature', the particular controlled conduct in which a civilian may engage as part of the controlled operation will be required to be specified in the authority to conduct a controlled operation (as set out at new section 15GK). This will ensure that the behaviour of civilian participants is tightly controlled.

Informants and civilians will have the same obligations as law enforcement participants and will be under the supervision of law enforcement officers. The new provisions allowing the participation of civilians will bring the Commonwealth into line with the model legislation.

controlled conduct will mean conduct constituting an offence for which a person would, but for new section 15HA, be criminally responsible. During a controlled operation, a participant may need to engage in unlawful conduct. For example, in a controlled operation investigating a drug trafficking syndicate, a participant may purchase illegal drugs to gather required evidence. Only criminal conduct that the participant has been authorised to participate in will be covered by 'controlled conduct'.

corresponding State controlled operations law will mean a law of, or provisions of a law of, a State or Territory prescribed in regulations made under the Crimes Act. These laws will be State and Territory laws that are based on, or are substantially similar to, the model legislation.

law enforcement agency will mean the AFP, the ACC, Customs, ACLEI or the police force of a State or Territory. Officers of each of these agencies will be able apply to an authorising agency (as defined in this section 15GC) to conduct a controlled operation. This definition will be different from the definition of 'law enforcement officer' in section 3 of the Crimes Act as it does not include foreign police or foreign law enforcement agencies. This has been done intentionally as, while foreign officers may assist and participate in controlled operations, it would not be appropriate to allow them to independently apply for an authorisation to conduct a Commonwealth controlled operation (see also the definition of Australian law enforcement officer in current section 3 of the Crimes Act).

While officers of each 'law enforcement agency' will be able to apply for a controlled operation, only the AFP, the ACC and ACLEI will be able to authorise a controlled operation. Accordingly, one of these three agencies will ultimately be responsible for each controlled operation authorised under this regime.

law enforcement participant in an authorised controlled operation will be a participant authorised by an authorising officer (as defined in this section 15GC) under section 15GI or 15GO, who is a law enforcement officer. Law enforcement officers are differentiated from civilian participants, as it is appropriate, in some respects, to impose different requirements on the two groups. For example, new section 15GK will provide that an authority to conduct a controlled operation must detail the particular 'controlled conduct' (if any) that a civilian may undertake, but is only required to state the 'nature' of the controlled conduct in which a law enforcement officer may engage. This will ensure that the behaviour of civilian participants is tightly controlled, while allowing more latitude to law enforcement officers to provide greater operational flexibility.

nominated Tribunal member will mean an Administrative Appeals Tribunal (AAT) member who is nominated by the Minister under new section 15GG to deal with applications under new section 15GU to extend the period of effect of a controlled operation authority beyond three months.

participant will be any person who is authorised, under new section 15GI or 15GO, to engage in 'controlled conduct' for the purposes of a controlled operation. This will include both law enforcement and civilian participants (including informants).

principal law enforcement officer will be the law enforcement officer who is responsible for the conduct of the controlled operation. New section 15GK provides that an authority to conduct a controlled operation must nominate the law enforcement officer responsible for the controlled operation.

15GD Meaning of controlled operation and major controlled operation

Subsection 15GD(1) will define controlled operation as an operation authorised under this Part of the Crimes Act which involves law enforcement officers, and may involve other people, to obtain evidence that may lead to the prosecution of a person for a 'serious Commonwealth offence' (defined at new section 15GE) or a 'serious State offence that has a federal aspect' (defined at new subsection 15GE(4)). To obtain the required evidence, participants in a controlled operation may need to engage in conduct that may constitute a criminal offence, or for which they may be civilly liable. To protect participants, Division 3 of this Part of the Crimes Act will provide that participants are not criminally responsible, and are indemnified against civil liability, for conduct that they have been authorised to undertake as part of a controlled operation.

Subsection 15GD(2) will define major controlled operation as a controlled operation that is likely to involve infiltration of an organised crime group by a law enforcement officer for a period of more than seven days, or continue for more than three months, or be directed against suspected activity which includes a threat to human life. The term 'organised crime group' will not be separately defined - it is intended to cover any group of people engaged in criminal activity in a structured way.

The purpose of this definition will be to distinguish between major controlled operations and other controlled operations, as authorities for major controlled operations can only be authorised by the Commissioner or Deputy Commissioner of the AFP. Other AFP controlled operations will be able to be authorised by an 'appropriate authorising officer', as defined at new sections 15GC and 15GF.

The distinction between major controlled operations and other controlled operations will only apply to the AFP. Because the AFP authorises the majority of controlled operations, this will ensure that only the most senior officers in the AFP authorise long operations, or operations directed against activity involving threat to life.

15GE Meaning of serious Commonwealth offence and serious State offence that has a federal aspect

New section 15GD will provide that a controlled operation may only be carried out to obtain 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'. Section 15GE will define these terms.

The definition of serious Commonwealth offence will reflect the definition in existing section 15HA of the Crimes Act, including offences listed in Regulation 4A of the Crimes Regulations 1900. It will be defined as a Commonwealth offence carrying a maximum penalty of imprisonment for three years or more that falls within the categories of offences specified in subsections 15GE(2) and (3). This will ensure that controlled operations are only authorised for the most serious Commonwealth offences. In accordance with the recommendation made by the Standing Committee on Legal and Constitutional Affairs in its report on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006, offences carrying a penalty of less than three years imprisonment cannot be included in the definition of 'serious offence' by regulation.

A serious State offence that has a federal aspect will mean an offence against a law of a State or Territory that has a federal aspect and that is punishable on conviction by imprisonment for a period of three years or more. This will allow Commonwealth law enforcement agencies to investigate State offences that are incidental to Commonwealth crime.

A State offence will have a federal aspect if the subject matter of the offence is a subject on which the Commonwealth has constitutional power to legislate. A State offence will also have a federal aspect if the investigation of that State offence is incidental to an investigation of a Commonwealth or Territory offence (existing section 3AA of the Crimes Act explains when a State offence has a federal aspect).

In practice, where a Commonwealth law enforcement agency, such as the AFP, is investigating Commonwealth crimes, it may become apparent that State offences have also been committed. Allowing controlled operations authorised under the Crimes Act to be used for the investigation of serious State offences that have a federal aspect will enable the AFP to investigate the totality of the criminal conduct involved in the offending.

15GF Meaning of authorising officer etc.

Section 15GF will set out who may authorise a controlled operation under the new regime. Only senior officers within each 'authorising agency' (defined at new section 15GC) will be able to authorise a controlled operation. These officers will be 'authorising officers'.

For the purposes of the definition of authorising officer, there will be four categories of controlled operations:

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where the operation is a major controlled operation and the investigation of the offence is within the functions of the AFP

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where the operation is not a major controlled operation and the investigation of the offence is within the functions of the AFP

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where the investigation of the offence is within the functions of the ACC, and

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where the investigation relates to a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act 2006.

The reason for the distinction between types of controlled operations conducted by the AFP is to ensure that the controlled operations which may involve more serious risks for operatives, both in terms of time spent undercover and safety, will only be approved by the Commissioner or Deputy Commissioner of the AFP (paragraph 15GF(1)(a)). This distinction only applies to the AFP.

Where the operation is an AFP controlled operation other than a 'major controlled operation', paragraph 15GF(1)(b) will provide that it may be authorised by an AFP authorising officer, which will be defined at subsection 15GF(3) as the AFP Commissioner, a Deputy Commissioner or a senior executive AFP employee authorised in writing by the Commissioner to perform the function.

Where the investigation of the offence is within the functions of the ACC, paragraph 15GF(1)(c) will provide that it may be authorised by an ACC authorising officer, which will be defined at subsection 15GF(4) as the Chief Executive Officer of the ACC or an SES employee of the ACC authorised in writing by the Chief Executive Officer to perform the function.

Where the investigation is of a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act, paragraph 15GF(1)(d) will provide that it may be authorised by an ACLEI authorising officer, which will be defined at subsection 15GF(5) as the Integrity Commissioner, the Assistant Integrity Commissioner, or a staff member of ACLEI who is an SES employee and is authorised in writing by the Integrity Commissioner to perform the function.

Authorising officers will only be officers of the AFP, the ACC or ACLEI. Other law enforcement agencies, such as Customs, will need to make any application to conduct a controlled operation to an authorising officer in the AFP, the ACC or ACLEI. The vast majority of controlled operations conducted at the federal level are undertaken by the AFP. A smaller, but significant number of operations are conducted by the ACC. As a result, these agencies have the relevant operational experience to appropriately determine when a controlled operation should be authorised. As ACLEI has the specific role of investigating corruption issues that relate to the AFP and the ACC, it would not be appropriate to require ACLEI to ask the AFP or the ACC to authorise a controlled operation into this conduct.

15GG Minister may nominate AAT members

Section 15GG will allow the Minister to nominate AAT members to deal with applications under new section 15GU to extend the period of effect of a controlled operation authority beyond three months.

The Minister will be able to nominate an AAT Deputy President, full-time senior member, part-time senior member or member for this purpose, but a part-time senior member or member will only be able to be nominated if he or she has been enrolled as a legal practitioner of the High Court or another federal court, or of the Supreme Court of a State or of the Australian Capital Territory, for not less than five years.

Subsection 15GG(4) will provide that a nominated Tribunal member has, in relation to the performance of a function under this Part of the Crimes Act, the same protection and immunity as a Justice of the High Court in relation to proceedings in that Court.

Division 2 - Authorisation of controlled operations

Division 2 of new Part IAB of the Crimes Act will set out how controlled operations can be authorised and varied, including how applications are made, who can issue authorities and the procedural requirements that must be followed.

Subdivision A - Authorities to conduct controlled operations

15GH Applications for authorities to conduct controlled operations

Section 15GH will provide that only an 'Australian law enforcement officer' (defined at existing section 3 of the Crimes Act) of a 'law enforcement agency' (defined at new section 15GC) may apply for an authority to conduct a controlled operation. A foreign law enforcement officer will be able to participate in a controlled operation under the Crimes Act, but cannot apply for authority to conduct the operation. This section will also outline the requirements and process for an application for an authority to conduct a controlled operation.

Subsection 15GH(2) will provide that there are two types of application for an authority to conduct a controlled operation:

A formal application will be the standard method of applying for an authority. A formal application will be required to be in writing and signed by the law enforcement officer who is applying for the authority. It will be required to state the proposed duration of the authority, which must not exceed three months.

An urgent application will be the method of applying for an authority when time is of the essence or when the means of communication available to the law enforcement officer who is applying for the authority are limited. An urgent application will only be able to be made if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the operation. Urgent applications will be able to be made orally in person, or by telephone, or by any other means of communication. An urgent application will be required to state the proposed duration of the authority, which must not exceed seven days.

Both formal and urgent applications to conduct a controlled operation will be required to be made to an authorising officer (as defined in section 15GF).

Subsection 15GH(3) will provide that an application can be made in relation to a controlled operation which has been the subject of a previous application, but in those circumstances only a formal application can be made.

The most important aspect of an urgent application is that it enables information to be presented to an authorising officer without the need to prepare a formal document, which facilitates the grant of an authority within a tight timeframe. However, to ensure appropriate record keeping and assist oversight mechanisms, subsection 15GH(6) will provide that if an urgent application was not made in writing, the applicant must make a written record of the application as soon as practicable and provide a copy to the authorising officer. This will assist the authorising officer, who is required under new section 15GL to provide a written record of an urgent authority to the principal law enforcement officer (who is defined at section 15GC as the law enforcement officer who is responsible for the conduct of the controlled operation) within seven days of granting the application.

Subsection 15GH(4) will set out the information that all applications (whether formal or urgent) must include. Applications will be required to provide sufficient information to enable the authorising officer to decide whether or not to authorise the proposed controlled operation. Applications will also be required to specify the proposed duration of the operation, and provide details of any previous applications that have been made, or authorities that have been granted, in respect of the proposed operation or another controlled operation that investigated the same the criminal activity as the proposed operation.

Subsection 15GH(5) will provide that an authorising officer may ask the applicant to provide further information about the proposed controlled operation, where this is required for a proper consideration of the application.

15GI Determination of applications

Subsection 15GI(1) will provide that after considering the application and any additional information, the 'authorising officer' (defined at section 15GF) may authorise the controlled operation, subject to, or without, conditions, or refuse the application.

Subsection 15GI(2) will provide that an authorising officer must not authorise a controlled operation unless he or she is satisfied, on reasonable grounds, of a number of specified matters, including that:

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a serious Commonwealth offence or a serious State offence with a federal aspect has been (as defined at section 15GE), is being or is likely to be committed

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the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation

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any unlawful conduct will be limited to the maximum extent necessary to conduct an effective controlled operation

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the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods will be under the control of Australian law enforcement officers at the end of the controlled operation

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the operation will be conducted in such a way as to enable the oversight and accountability arrangements in Division 4 of this Part IAB to be complied with

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the operation will not be conducted in a way that would induce a person to commit any offence that they would not otherwise have intended to commit. This would ensure that a controlled operation does not involve conduct that would constitute entrapment (i.e. where a suspect is induced to commit an offence that they would not otherwise have intended to commit). It does not apply to authorised participants, who will be provided with protection from criminal responsibility for authorised criminal conduct engaged in during a controlled operation (new section 15HA)

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the operation will not involve conduct that will:

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seriously endanger the health or safety of any person

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cause the death of, or serious injury to, any person

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involve the commission of a sexual offence against a person, or

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result in significant loss of or damage to property (other than illicit goods).

The regime recognises that it is never appropriate for conduct of the nature specified to be undertaken, or authorised by, law enforcement officers.

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any role assigned to a civilian could not be adequately performed by a law enforcement officer. For example, it would be appropriate to authorise the participation of a civilian in a controlled operation if that person speaks a language or dialect that is spoken by the people under investigation but is not spoken by any available law enforcement officer. Alternatively, the civilian may be an informant who is a member of a crime syndicate that police are either unable, or would not have sufficient time, to infiltrate without the informant's assistance.

The original authorisation process for controlled operations is internal to the AFP, the ACC and ACLEI. This is appropriate, as the conduct of controlled operations is essentially an operational matter and internal authorisation provides operational efficiency and protects the security of the investigation.

New Division 4 of this new Part IAB of the Crimes Act will set out the role of the Ombudsman in reporting on compliance by the AFP, the ACC and ACLEI with the application and authorisation requirements provided in this Division. This will ensure appropriate oversight and monitoring of the process.

Subsection 15GI(4) will clarify that an authority to conduct a controlled operation granted under this section is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 15GI(4) has been included to assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to authorities issued under this section.

15GJ Manner of granting authority

Section 15GJ will set out the forms in which an authority for a controlled operation can be granted.

Subsection 15GJ(1) will provide that there are two types of authority:

A formal authority, which will be required to be in writing and signed by the authorising officer.

An urgent authority, which will be able to be given orally in person or by telephone, or any other means of communication.

A formal authority will only be able to be granted in response to a formal application (as defined at paragraph 15GH(2)(a)). An urgent authority will be able to be granted in response to an urgent application (as defined at paragraph 15GH(2)(b)) or, if the authorising officer (as defined at section 15GF) is satisfied that the delay caused by granting a formal application may affect the success of the operation, in response to a formal application. The maximum duration of an urgent authority will be seven days.

Subsection 15GJ(2) will provide that the authorising officer can only grant a formal authority for a controlled operation that has been the subject of a previous authority. As a result, if an operation that was authorised by an urgent authority needs to be continued, a new formal application will need to be made, and a formal authority granted. This section will also maintain the current position of allowing a new authority to be granted for a controlled operation which has previously ended due to it reaching the maximum duration. This is necessary to provide law enforcement agencies with the flexibility to reopen or continue long and complex investigations into organised crime groups.

15GK Form of authority

Section 15GK will set out the details that must be included in an authority. Subsection 15GK(1) will set out the details to be included in a formal authority and subsection 15GK(2) will set out the details to be included in an urgent authority. These requirements are designed to ensure that the authority provides comprehensive information about the planned operation. The following information will be required to be included in both formal and urgent authorities:

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the name and rank or position of the authorising officer (paragraphs 15GK(1)(a) and 15GK(2)(a))

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the principal law enforcement officer - as defined at section 15GC, this will be the law enforcement officer who is responsible for the conduct of the controlled operation (paragraphs 15GK(1)(b) and 15GK(2)(b))

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the applicant for the authority, if different to the principal law enforcement officer (paragraphs 15GK(1)(b) and 15GK(2)(b))

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whether the application was formal or urgent - noting that section 15GJ will provide that a formal authority can only be granted in response to a formal application (paragraphs 15GK(1)(c) and 15GK(2)(c))

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the nature of the criminal activity (including the suspected serious Commonwealth offences (defined at section 15GE) and serious State offences that have a federal aspect (defined at subsection 15EG(4)) in respect of which the controlled conduct is to be engaged in (paragraphs 15GK(1)(d) and 15GK(2)(d))

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the identity of the individual people authorised to participate in the controlled operation - this includes law enforcement officers and civilians (paragraphs 15GK(1)(e) and 15GK(2)(e)). Subsection 15GK(3) will provide that a person may be identified by an assumed name, or a code name or number, provided that the chief officer of the authorising agency can match this name or number to the person's real identity. This will provide protection for a person who is participating in a controlled operation, as their life may be at risk if the criminals targeted by the controlled operation discovered that the person was conducting or assisting an investigation into their criminal activity.

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the nature of the controlled conduct in which authorised participants may engage (paragraphs 15GK(1)(f) and 15GK(2)(f)). 'Controlled conduct' will be defined at section 15GC as conduct constituting an offence for which a person would, but for new section 15HA, be criminally responsible. Paragraphs 15GK(1)(f) and 15GK(2)(f) will specify that different levels of detail must be provided for law enforcement officers and civilian participants. For civilian participants, the particular 'controlled conduct' (if any) in which they are authorised to participate will be required to be detailed, whereas for law enforcement participants, the authority will only be required to state the 'nature' of the controlled conduct in which they are authorised to engage. This will ensure that the behaviour of civilian participants is tightly controlled, while allowing more latitude to law enforcement officers to provide greater operational flexibility.

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the person/s to be targeted by the controlled operation - to the extent that this is known (paragraphs 15GK(1)(g) and 15GK(2)(g))

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the period of the authority - for a formal authority this period will not be able to exceed three months, for an urgent authority this period will not be able to exceed seven days (paragraphs 15GK(1)(h) and 15GK(2)(h))

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any conditions to which the conduct of the operation is subject (paragraphs 15GK(1)(i) and 15GK(2)(i)), and

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the time and date that the authority was granted (paragraphs 15GK(1)(j) and 15GK(2)(j)).

In addition, paragraph 15GK(1)(k) will provide that a formal authority must also include, to the extent known and applicable, details about any illicit goods (eg illegal drugs) that will be involved in the operation, including any international movements of those goods and details of when the goods will be dealt with by Customs. These details will not be required to be contained in an urgent application because it is likely to be unfeasible for an applicant to ascertain this information in a limited timeframe.

15GL Written record of urgent authority must be issued

Section 15GL will require an authorising officer (as defined at section 15GF) to provide the principal law enforcement officer (as defined at section 15GC, this is the law enforcement officer who is responsible for the conduct of the controlled operation) with a written record of the urgent authority to conduct a controlled operation within seven days of granting that authority under section 15GI. The written record will be required to contain all the information set out at subsection 15GK(2).

15GM Change of principal law enforcement officer

Section 15GM will allow an authorising officer (as defined at section 15GF) to nominate a new principal law enforcement officer for a controlled operation where the current principal law enforcement officer ceases for any reason to have responsibility for the controlled operation. This will ensure that if a principal law enforcement officer resigns or transfers to a new area of responsibility, the controlled operation can continue under the direction of another appropriate officer.

15GN Commencement and duration of authorities

Section 15GN will set out when an authority to conduct a controlled operation commences and expires.

Subsection 15GN(1) will provide that a controlled operation is taken to commence at the time that an authority is granted under section 15GI. Subsection 15GN(2) will clarify that an urgent authority is granted when the authorising officer (as defined at section 15GF) tells the applicant that the authority is granted.

The maximum duration of a formal authority for a controlled operation will be three months. However, the duration of a controlled operation will be able to be extended up to a total of 24 months (see new sections 15GQ and 15GV).

The maximum duration of an urgent authority will be seven days. This period cannot be extended. However, the controlled operation authorised by an urgent authority will be able to continue beyond seven days if a formal application is made, and a formal authority given, to allow this to occur (see subsections 15GH(3) and 15GJ(2)).

A controlled operation will have effect for the period specified in the authority granted under section 15GI, unless it is cancelled before the end of that period (under section 15GY) or, in the case of a formal authority, the period is extended under section 15GQ or 15GV. In that case, the controlled operation ends once the final period of extension is completed.

Under the existing legislation, the maximum duration of a controlled operation is six months (existing section 15OB of the Crimes Act). Under the new controlled operation regime, the maximum duration for a controlled operation will be 24 months. This change recognises that some controlled operations, particularly those investigating organised crime, may extend for a long period of time and it would cause significant disruption to the investigation, and possible risk to participants, if the operation was interrupted at a sensitive state.

Subdivision B - Variation of authorities by appropriate authorising officers

Subdivision B of Division 2 of new Part IAB of the Crimes Act will establish a regime for varying authorities where the variation will not result in the duration of the operation exceeding three months. Such variations will be able to be made by an 'appropriate authorising officer', who, as defined at section 15GC, is an authorising officer (defined at section 15GF) of the original authorising agency. For example, if the controlled operation was originally authorised under section 15GI by an ACC authorising officer (defined at subsection 15GF(4)) the authority to conduct the controlled operation will be able to be varied by that person, or any other ACC authorising officer, provided that the variation will not extend the total period of the controlled operation beyond three months.

Authorities will be able to be varied to allow a controlled operation to extend beyond three months, but these variations will only be able to be made by a nominated member of the AAT (as defined at section 15GG) acting under Subdivision C of Division 2 of new Part IAB of the Crimes Act. This will provide additional, external oversight for long controlled operations, while retaining flexibility for shorter operations.

15GO Variation of authority by appropriate authorising officer

Section 15GO will set out when an authority for a controlled operation may be varied by an 'appropriate authorising officer'. 'Appropriate authorising officer' will be defined at section 15GC as an authorising officer (defined at section 15GF) of the original authorising agency. For example, if the controlled operation was originally authorised under section 15GI by an ACC authorising officer (defined at subsection 15GF(4)) that person, and any other ACC authorising officer, is an 'appropriate authorising officer'. Allowing variations to be made by authorising officers other than the officer who originally authorised the controlled operation will allow flexibility in circumstances where the original authorising officer is not available, while ensuring that the same agency remains responsible for each controlled operation approved by its authorising officers.

Both formal authorities and urgent authorities will be able to be varied under section 15GO.

Subsection 15GO(1) will provide that an appropriate authorising officer may vary an authority at any time on their own initiative or in response to an application made under new section 15GP. An authority may be varied in a number of ways. Subsection 15GO(2) will provide that a variation may:

• allow participants to engage in controlled conduct that is additional to, or different from, the controlled conduct that the original authorisation allowed them to engage in.

'Controlled conduct' will be defined at new section 15GC as conduct constituting an offence for which a person would, but for new section 15HA, be criminally responsible. As with the original authorisation (as set out at new paragraphs 15GK(1)(f) and 15GK(2)(f)) a variation of this kind will be required to provide different levels of detail for law enforcement officers and civilian participants.

For civilian participants, the particular 'controlled conduct' in which the variation is authorising them to participate will be required to be detailed, whereas for law enforcement participants, the variation will only be required to specify the 'nature' of the controlled conduct in which the variation authorises them to engage. This will ensure that the behaviour of civilian participants is tightly controlled, while allowing more latitude to law enforcement officers to provide greater operational flexibility.

• provide that participants are no longer authorised to engage in controlled conduct that the original authorisation allowed them to engage in

• authorise new people (law enforcement officers and/or civilians, including informants) to participate in the controlled operation, and/or

• extend a controlled operation up to a total duration of three months.

Subsection 15GO(3) will provide that the period of effect of an urgent authority cannot be extended. As a result, if an operation that was authorised by an urgent authority needs to be extended, a new formal application to conduct the controlled operation will be required to be made under new section 15GH.

Under the current Crimes Act, appropriate authorising officers are able to vary an authorisation to conduct a controlled operation, except to extend the duration of the controlled operation. Under existing section 15OB of the Crimes Act, only a nominated member of the AAT may extend the duration of a controlled operation. The period of effect of an authority to conduct a controlled operation may only be extended once, for a period of no more than three months. This means that currently a controlled operation may run for a maximum of six months.

As with the current provisions, appropriate authorising officers will not be able to authorise a controlled operation to extend beyond three months. Subsection 15GO(4) will make this explicit by providing that a formal authority must not be varied in such a way that the period of effect of the authority would exceed three months, including any previous extensions. Authorities will be able to be varied to allow a controlled operation to extend beyond three months, but these variations will only be able to be made by a nominated member of the AAT (as defined at section 15GG) acting under Subdivision C of Division 2 of new Part IAB of the Crimes Act. The requirement for extensions beyond three months to be authorised by a nominated AAT member will ensure that these decisions are subject to external, independent scrutiny.

Allowing an appropriate authorising officer, who is internal to the authorising agency, to vary the period of effect of a controlled operation authority, provided that the variation does not result in the controlled operation extending beyond three months, is appropriate as it provides operational efficiency and protects the security of the investigation. However, to ensure a proper balance between operational flexibility and accountability, the new regime will contain additional safeguards to ensure that this new function is appropriately oversighted and monitored.

The Ombudsman will have the power to inspect the records of the AFP, the ACC and ACLEI at any time (new section 15HS) and obtain relevant information from any law enforcement officer, including an officer from an agency other than the AFP, the ACC or ACLEI (new section 15HT). In addition, the chief officers of the AFP, ACLEI and the ACC (as defined at section 15GC) will be required, under new section 15HP, to keep a copy of all formal variation applications and authorisations. If the Ombudsman finds any irregularity in these records, the Ombudsman will be able to report these concerns to the Minister.

Subsection 15GO(5) will provide that a variation cannot be granted unless the appropriate authorising officer is satisfied on reasonable grounds that the variation will not authorise a significant alteration of the nature of the controlled operation. This will be a safeguard against the use of variation applications to authorise entirely new and different operations. The authorising officer will be required to consider whether the variation is consistent with the character of the originally authorised controlled operation. If a significant change to the nature of the operation is required, an application for a new controlled operation should be made under new section 15GH.

Subsection 15GO(6) will clarify that the variation of an authority to conduct a controlled operation granted under this section is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 15GO(6) has been included to assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to authorities issued under this section.

15GP Application to appropriate authorising officer

Section 15GP will provide that the principal law enforcement officer for an authorised operation (that is, as defined at section 15GC, the law enforcement officer who is responsible for the conduct of the controlled operation) or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply to an appropriate authorising officer for a variation of an authority to conduct a controlled operation. 'Appropriate authorising officer' will be defined at section 15GC as an authorising officer (defined at section 15GF) of the original authorising agency. For example, if the controlled operation was originally authorised under section 15GI by an ACC authorising officer (defined at subsection 15GF(4)) that person, and any other ACC authorising officer, will be an 'appropriate authorising officer'.

Subsection 15GP(1) will provide that an authority may be varied as set out at subsection 15GO(2), which provides that variations may:

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allow participants to engage in controlled conduct that is additional to, or different from, the controlled conduct that the original authorisation allowed them to engage in.

'Controlled conduct' will be defined at new section 15GC as conduct constituting an offence for which a person would, but for new section 15HA, be criminally responsible. As with the original authorisation (as set out at new paragraphs 15GK(1)(f) and 15GK(2)(f)) a variation of this kind will be required to provide different levels of detail for law enforcement officers and civilian participants.

For civilian participants, the particular 'controlled conduct' in which the variation is authorising them to participate will be required to be detailed, whereas for law enforcement participants, the variation is only required to specify the 'nature' of the controlled conduct in which the variation authorises them to engage. This ensures that the behaviour of civilian participants will be tightly controlled, while allowing more latitude to law enforcement officers to provide greater operational flexibility.

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provide that participants are no longer authorised to engage in controlled conduct that the original authorisation allowed them to engage in

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authorise new people (law enforcement officers, civilians and/or informants) to participate in the controlled operation, and/or

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extend a controlled operation up to a total duration of three months.

Subsection 15GP(2) will provide that an application cannot be made to an appropriate authorising officer to vary an authorisation if the variation would result in the total period of effect of the authority extending beyond three months. Authorities will be able to be varied to allow a controlled operation to extend beyond three months, but these variations will only be able to be made by a nominated member of the AAT (as defined at section 15GG) acting under Subdivision C of Division 2 of this new Part IAB of the Crimes Act. The requirement for extensions beyond three months to be authorised by a nominated AAT member will ensure that these decisions subject to external, independent scrutiny. While this departs from the model laws, it accords with the recommendation made by the Senate Standing Committee on Legal and Constitutional Affairs in its report on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006.

Only formal authorities will be able to be extended. If a controlled operation that was authorised by an urgent authority needs to be extended, a new formal application to conduct the controlled operation will need to be made under new section 15GH.

There will be two types of applications for variations to an authority to conduct a controlled operation:

A formal variation application will be the standard method for applying for a variation. A formal variation application will be required to be in writing and signed by applicant. If the application is seeking a variation of the period of effect of the authority it must state the proposed period of the extension, which must not result in the total duration of the controlled operation exceeding three months.

An urgent variation application will be the method of applying for a variation when time is of the essence or when the means of communication available to applicant are limited. An urgent variation application may only be made if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the operation. Urgent variation applications will only be able to be made orally in person, or by telephone, or by any other means of communication. If the urgent variation application is seeking a variation of the period of effect of an authority it will be required to state the proposed period of the extension, which must not exceed the lesser of seven days or the period that would result in the total duration of the controlled operation exceeding three months.

The most important aspect of an urgent variation application is that it enables information to be presented to an authorising officer without the need to prepare a formal document, which facilitates the grant of an authority to within a tight timeframe. However, to ensure appropriate record keeping and assist oversight mechanisms, subsection 15GP(8) will provide that if an urgent variation application was not made in writing, the applicant must make a written record of the application as soon as practicable and provide a copy to the authorising officer. This will assist the authorising officer, who will be required under new section 15GR to provide a written record of any variation of an authority to the principal law enforcement officer, or the law enforcement who applied for the variation, as soon as practicable.

Subsection 15GP(5) will provide that a variation application must provide details of any previous variation applications that have been made in respect of the controlled operation. This information is important as subsection 15GP(4) will provide that more than one variation application may be made in respect of the same authority, but if an urgent variation was granted as a result of an application, the next variation application must be a formal variation application.

Subsection 15GP(7) will provide that an authorising officer may ask the applicant to provide further information, where this is required for a proper consideration of the variation application.

Agencies will be required, under new subsection 15HM(2) to include, in their six-monthly report to the Ombudsman and Minister, information on the number of formal variation applications and urgent variation applications that were made in the reporting period. This will provide an external check on the use of variation applications.

15GQ Requirements for variation of authority

Subsection 15GQ(1) will provide that, after considering an application for a variation and any additional information, an appropriate 'authorising officer' (defined at section 15GF) may vary the authority to conduct the controlled operation, subject to, or without, conditions, or refuse to vary the authority.

Subsection 15GQ(2) will provide that the authorising officer must not vary an authority unless he or she is satisfied, on reasonable grounds, of a number of criteria, equivalent to the criteria in subsection 15GI(2). These criteria will apply whether an authorising officer is considering varying an authority on his or her own initiative (under proposed paragraph 15GO(1)(a)) or in response to an application from another officer made under proposed section 15GP. This will require the authorising officer, before making a variation, to consider the same range of factors as must be considered when an authorising officer is considering whether to grant the original authority to conduct a controlled operation. This will mean that the variation application process will effectively function as a full internal review of the controlled operation in question.

Agencies will be required, under new subsection 15HM(2) to include, in their six-monthly report to the Ombudsman and Minister, information on the number of formal variations and urgent variations that were granted or refused in each six-month reporting period. This will provide an external check on the use of variation powers.

15GR Manner of varying authority

Section 15GR will set out the forms in which an authority for a controlled operation can be varied by an appropriate authorising officer (defined at section 15GC), either as a result of a variation application or on his or her own initiative.

Subsection 15GR(2) will provide for two types of variation:

A formal variation of authority, which must be in writing and signed by the appropriate authorising officer.

An urgent variation of authority, which may be given orally in person or by telephone or any other means of communication.

A formal variation of authority will be able to be granted in response to a formal variation application (as defined at paragraph 15GP(3)(a)) or on the initiative of the appropriate authorising officer.

An urgent variation of authority will be able to be granted on the appropriate authorising officer's own initiative, in response to an urgent application (as defined at paragraph 15GP(3)(b)) or, if the appropriate authorising officer is satisfied that the delay caused by granting a formal variation of authority may affect the success of the operation, in response to a formal variation application. Paragraph 15GP(5)(b) will provide that the maximum duration of an urgent variation of authority is seven days. Subsection 15GP(4) will provide that more than one variation application may be made in respect of the same authority, but if an urgent variation was granted as a result of an application, the next variation application must be a formal variation application.

Subsection 15GR(2) will require the authorising officer, as soon as practicable, to prepare and give to the applicant (or, where the variation is made on the initiative of the authorising officer, to the principal law enforcement officer, as defined at section 15GC) a written document that complies with new section 15GS.

15GS Form of variation of authority

Section 15GS will set out the details that must be included in a variation of an authority, whether formal or urgent. Subsection 15GS(1) will provide that a variation of an authority must:

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identify the controlled operation to which the variation relates

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identify the appropriate authorising officer (defined at section 15GC) varying the authority

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if relevant, identify the person who made the application for the variation and whether that application was formal or urgent

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state the date and time that the authority was varied, and

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describe the variation, taking into account the restrictions on how an authority can be varied (which will be set out at new section 15GO).

Subdivision C - Variations of authorities by nominated Tribunal member: extensions beyond 3 months

Subdivision C of Division 2 of new Part IAB of the Crimes Act will establish a regime for varying authorities where the variation will result in the duration of the operation exceeding three months. Such variations can only be made by a nominated member of the AAT (defined at section 15GG) on the application of the principal law enforcement officer for an authorised operation (which will be defined at new section 15GC as the law enforcement officer who is responsible for the conduct of the controlled operation) or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer.

Variations of authorities that will not result in the duration of the operation exceeding three months will be able to be made, under Subdivision B of Division 2 of new Part IAB of the Crimes Act, by an 'appropriate authorising officer', which will be defined at section 15GC, as an authorising officer (defined at section 15GF) of the original authorising agency. For example, if the controlled operation was originally authorised under section 15GI by an ACC authorising officer (defined at subsection 15GF(4)) the authority to conduct the controlled operation may be varied by that person, or any other ACC authorising officer, provided that the variation will not extend the total period of the controlled operation beyond three months.

Variations extending the duration of an operation beyond three months will be able to be planned and prepared for. Determination of applications for these variations will provide the nominated AAT member with an opportunity to review the operation as a whole.

Unlike the position in relation to variations that will be able to be made by appropriate authorising officers, nominated AAT members will not be able to vary an authority to conduct a controlled operation on their own initiative.

15GT Variations of authorities by nominated Tribunal member: extensions beyond 3 months

Section 15GT will provide that a formal authority to conduct a controlled operation may be varied by a nominated member of the AAT. A nominated member of the AAT is the only person who will be able to vary an authority to extend the period of effect of that authority beyond three months. This requirement will ensure the external oversight of any decision to extend a controlled operation beyond this timeframe. The Minister will be able to nominate AAT members under new section 15GG.

Subsection 15GT(3) will provide that a variation made by a nominated AAT member must not extend the period of effect of an authority to conduct a controlled operation for more than three months at a time, or so that the total duration of the controlled operation (including any extensions previously granted by an appropriate authorising officer under section 15GQ or by a nominated AAT member under section 15GV) would exceed 24 months. For example, if an authority has already been extended a number of times and has been in effect for a total of 22 months, a nominated AAT member may only extend the period of effect of that authority by up to two months.

Subsection 15GT(4) will provide that a nominated AAT member may only vary an authority to extend the period of operation of a controlled operation in the two weeks prior to the end of the period of effect of the authority. This will ensure that AAT member is considering the most recent events in the controlled operation before making the decision to extend the operation.

Agencies will be required, under new subsection 15HM(2), to include, in their six-monthly report to the Ombudsman and Minister, information on the number of formal variation applications and urgent variation applications that were made in the reporting period. This will provide an external check on the use of variation applications.

15GU Application to nominated Tribunal member

Section 15GU will provide that the principal law enforcement officer for an authorised operation (that is, as defined at section 15GC, the law enforcement officer who is responsible for the conduct of the controlled operation) or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply to a nominated AAT member (defined at section 15GG) to vary an authority to conduct a controlled operation to extend the period of effect of that authority beyond three months.

Subsection 15GU(2) will provide that an application cannot be made to extend the period of effect of an authority to conduct a controlled operation if the extensions would result in the total duration of the controlled operation (including any extension previously granted by an appropriate authorising officer under section 15GQ or by a nominated AAT member under section 15GV) exceeding 24 months.

Subsection 15GU(3) will set out the two types of applications that may be made to a nominated AAT member for variations to an authority to conduct a controlled operation:

A formal variation application will be the standard method for applying for a variation. A formal variation application will be required to be in writing and signed by the person who is applying for the variation. It will be required to state the proposed extension to the period of effect of the authority, which must not exceed three months.

An urgent variation application will be the method of applying for a variation when time is of the essence or when the means of communication available to the applicant are limited. An urgent variation application will only be able to be made if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the operation. An urgent variation application will be able to be made orally in person, or by telephone, or by any other means of communication. It will be required to state the proposed extension to the period of effect of an authority, which must not exceed seven days.

Subsection 15GU(5) will provide that a variation application must provide details of any previous variation applications that have been made in respect of the controlled operation. This information is important as subsection 15GU(4) will provide that more than one variation application may be made in respect of the same authority, but if an urgent variation was granted as a result of an application, the next variation application must be a formal variation application.

The most important aspect of an urgent variation application is that it enables information to be presented to a nominated AAT member without the need to prepare a formal document, which facilitates the grant of a variation to an authority within a tight timeframe. However, to ensure appropriate record keeping and assist oversight mechanisms, subsection 15GU(7) will provide that if an urgent variation application was not made in writing, the applicant must make a written record of the application as soon as practicable and provide a copy to the nominated AAT member. This will assist the nominated AAT member, who will be required under new section 15GW to provide a written record of any variation of an authority to the applicant as soon as practicable.

Subsection 15GU(6) will provide that the nominated AAT member may ask the applicant to provide further information, where this is required for a proper consideration of the variation application.

Agencies will be required, under new subsection 15HM(2) to include, in their six-monthly report to the Ombudsman and Minister, information on the number of formal variation applications and urgent variation applications that were made in the reporting period. This will provide an external check on the use of variation applications.

15GV Determination of application

Section 15GV will provide that, after considering the application and any additional information, the nominated AAT member (defined at section 15GG) may vary the authority to conduct the controlled operation, subject to, or without, conditions, or refuse to vary the authority.

Subsection 15GV(2) will provide that the nominated AAT member must not grant the requested variation unless he or she is satisfied, on reasonable grounds, of a number of specified criteria. These criteria reflect the criteria relevant to the determination of an initial application for an authority under new section 15GI. As a request for variation requires the nominated AAT member to consider the same range of factors as must be considered when an authorising officer is considering whether to grant an original authority, this process effectively functions as a full external review of the controlled operation if an application is made to continue the operation beyond three months, and at least every three months thereafter if further extensions are sought.

Agencies will be required, under new subsection 15HM(2) to include, in their six-monthly report to the Ombudsman and Minister, information on the number of formal variations and urgent variations that were granted or refused in each six-month reporting period. This will provide an external check on the use of variation powers.

Subsection 15GV(3) will clarify that a variation of an authority to conduct a controlled operation granted under the section is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 15GV(3) will ensure that readers of the Crimes Act are aware that the requirements imposed by the Legislative Instruments Act do not apply to variations of authorities issued under this section.

15GW Manner of varying formal authority

Section 15GW will set out the forms in which an authority for a controlled operation can be varied by a nominated AAT member (as defined at section 15GG).

Subsection 15GW(1) will provide for two types of variation:

A formal variation of authority, which must be in writing and signed by the authorising officer.

An urgent variation of authority, which may be given orally in person or by telephone or any other means of communication.

A formal variation of authority will only be able to be granted in response to a formal variation application (as defined at paragraph 15GU(3)(a)). An urgent variation of authority will be able to be granted in response to an urgent variation application (as defined at paragraph 15GU(3)(b)) or, if a nominated AAT member is satisfied that the delay caused by granting a formal variation of authority may affect the success of the operation, in response to a formal variation application.

Subsection 15GW(2) will require the nominated AAT member, as soon as practicable, to prepare and give to the applicant a written document that complies with new section 15GX.

15GX Form of variation of formal authority

Section 15GX will set out the details that must be included in a variation of a formal authority by a nominated AAT member, whether formal or urgent. Subsection 15GX(1) will provide that a variation of an authority must:

•

identify the controlled operation to which the variation relates

•

identify the nominated AAT member (defined at section 15GG) varying the authority

•

identify the person who made the application for the variation and whether that application was formal or urgent

•

state the date and time that the authority was varied, and

•

state the period by which the authority was extended, taking into account the restrictions on the length of each extension, and on the total duration of the controlled operation (which will be set out at new section 15GT).

Subdivision D - Other matters

15GY Cancellation of authorities

Section 15GY will provide for the cancellation of authorities.

Subsection 15GY(1) will provide that an appropriate authorising officer (as defined at section 15GC) may cancel an authority at any time and for any reason.

Subsection 15GY(2) will provide that an appropriate authorising officer may also cancel an authority at the request of the principal law enforcement officer (who will be defined at section 15GC as the law enforcement officer who is responsible for the conduct of the controlled operation).

Subsection 15GY(3) will provide that a cancellation of an authority to conduct a controlled operation takes effect from the time the cancellation order is made, or at a later time specified in the order.

15GZ Effect of authorities

Section 15GZ will describe the effect of an authority to conduct a controlled operation.

Subsection 15GZ(1) will provide that an authority authorises a participant (whether a law enforcement officer or a civilian, including an informant) to engage in the controlled conduct specified in the authority, or a variation to such an authority, issued under new sections 15GI or 15GO. 'Controlled conduct' is defined at section 15GC as conduct constituting an offence for which a person would, but for new section 15HA, be criminally responsible.

Subsection 15GZ(1) will be consistent with new paragraphs 15GK(1)(f), 15GK(2)(f) and subsection 15GO(2), which require the authority for a controlled operation, or a variation to such an authority, to identify the nature of the controlled conduct which may be engaged in by the participants during the controlled operation.

Subsection 15GZ(2) will clarify that a participant in a controlled operation who has been authorised to engage in controlled conduct is authorised to engage in that conduct for the period of effect of the authority to conduct the controlled operation unless:

•

the authority states that the person is authorised to engage in the controlled conduct for a shorter period

•

the authority is varied (under new section 15GQ) to state that the person is no longer authorised to participate in controlled conduct for the purpose of the controlled operation, or

•

the authority is cancelled (under new section 15GY) before the expiry of the period of effect specified in the authority.

Subsection 15GZ(2) will specify that the authority to engage in controlled conduct will not be able to be delegated to any other person.

15H Defect in authority

Section 15H will provide that:

•

an application for an authority to conduct a controlled operation (under new section 15GH)

•

an application for a variation to an authority (under new sections 15GP or 15GU)

•

an authority (under new section 15GI), or

•

a variation of an authority (under new sections 15GQ or 15GV)

are not invalidated by defects, unless the defect materially affects the application, the authority or the variation of an authority.

This provision will recognise that it would be inefficient and unreasonable if such documents were invalidated by minor matters that relate to form or process.

Division 3-Protection from criminal responsibility and related provisions

Division 3 of new Part IAB of the Crimes Act will be the critical component of the new controlled operations regime, as it will provide protection from criminal liability for participants (law enforcement officers and civilians, including informants) in controlled operations.

Subdivision A of new Division 3 will provide protection from criminal liability for participants in controlled operations authorised under this new Part IAB of the Crimes Act.

Subdivision B will give effect to the mutual recognition provisions in the model laws and provide protection from criminal liability for participants in controlled operations authorised under a corresponding controlled operations law of a State or Territory.

Subdivision A - Controlled operations under this Part

15HA Protection from criminal responsibility for controlled conduct during controlled operations

Section 15HA will protect a participant in a controlled operation (who may be a law enforcement officer or a civilian, including an informant) from criminal responsibility for controlled conduct that he or she is authorised (under sections 15GI, 15GO or 15GQ) to engage in during a controlled operation. 'Controlled conduct' will be defined at new section 15GC as conduct constituting an offence for which a person would, but for this section, be criminally responsible. For example, in a controlled operation investigating a drug trafficking syndicate, a participant may be authorised to purchase illicit drugs to gather evidence of drug trafficking.

The effect of this section will be that, while the controlled conduct will remain unlawful in nature, a participant who meets the requirements of the section will not be criminally responsible for the offence.

Subsection 15HA will provide that this protection from criminal responsibility only applies if:

•

the participant engages in the conduct in accordance with the authority to conduct the controlled operation. New paragraphs 15GK(1)(f), 15GK(2)(f) and 15GO(2)(b) will provide that when a controlled operation is authorised, or varied, the nature of the controlled conduct in which participants are authorised to engage must be specified. Those provisions require different levels of detail for law enforcement officers and civilian participants. For civilian participants, the particular 'controlled conduct' in which the authority or variation is authorising them to participate must be detailed, whereas for law enforcement participants, the authority or variation is only required to specify the 'nature' of the controlled conduct in which they are authorised to engage. This will ensure that the behaviour of civilian participants is tightly controlled, while allowing more latitude to law enforcement officers to provide address operational contingencies as they arise.

•

the participant is authorised under new sections 15GK or 15GO to engage in that conduct

•

the conduct does not involve the participant intentionally inducing another person to commit an offence that the person would not otherwise have intended to commit. New sections 15GI and 15GQ will provide that an authority to conduct a controlled operation, or a variation to a controlled operation, must not be granted unless the authorising officer (defined at section 15GF) is satisfied on reasonable grounds that the controlled operation will not be conducted in such a way that a person will be induced to commit an offence in this way

•

the participant does not engage in conduct that is likely to cause the death of, or serious injury to, any person, or involve the commission of a sexual offence against any person. New sections 15GI and 15GQ will provide that an authority to conduct a controlled operation, or a variation to a controlled operation, must not be granted unless the authorising officer (defined at section 15GF) is satisfied on reasonable grounds that any conduct involved in the controlled operation will not result in these outcomes or offending, and

•

if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer.

This section will apply to offences against Commonwealth, State or Territory law.

This provision will extend the protection from criminal liability that is currently provided to controlled operation participants under existing section 15I of the Crimes Act by providing protection from criminal responsibility to informants. This will reflect the model laws.

It is considered necessary to extend protection from criminal liability to informants as in some circumstances the participation of informants will be crucial to the success of a controlled operation, such as where informants would be able to perform actions in a controlled operation that law enforcement officers, or other civilians, could not undertake without compromising the success of the operation.

As an additional safeguard, paragraph 15GI(2)(h) will limit the use of informants in controlled operations, as it will provide that the authorising officer must be satisfied that the role intended for the civilian participant (which includes an informant) could not be adequately performed by a law enforcement officer.

The new controlled operation regime will not provide immunity for past criminal offences that informants may have committed. Informants will only receive protection from liability for conduct that they have been specifically authorised to undertake as part of a controlled operation.

15HB Indemnification of participants against civil liability

Section 15HB will provide that the Commonwealth must indemnify a participant in an authorised controlled operation (who may be a law enforcement officer or a civilian, including an informant) against any civil liability incurred because of conduct that the participant engages in, provided the following requirements are met:

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the conduct is in the course of, and for the purposes of, the controlled operation and in accordance with the authority to conduct the controlled operation

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the participant is authorised under proposed sections 15GK or 15GO to engage in that conduct

•

the conduct does not involve the participant intentionally inducing another person to commit an offence that the person would not otherwise have intended to commit. New sections 15GI and 15GQ will provide that an authority to conduct a controlled operation, or a variation to a controlled operation, must not be granted unless the authorising officer (defined at section 15GF) is satisfied on reasonable grounds that the controlled operation will not be conducted in such a way that a person will be induced to commit an offence in this way

•

the participant does not engage in conduct that is likely to cause the death of, or serious injury to, any person or involve the commission of a sexual offence against any person. New sections 15GI and 15GQ will provide that an authority to conduct a controlled operation, or a variation to a controlled operation, must not be granted unless the authorising officer (defined at section 15GF) is satisfied on reasonable grounds that any conduct involved in the controlled operation will not result in these outcomes or offending

•

if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer, and

•

any further requirements specified in the regulations.

As with the extension of protection of informants from criminal liability under new section 15HA, this provision will extend the indemnity from civil liability that is currently provided to controlled operation participants by existing section 15IA of the Crimes Act, by indemnifying informants. This will reflect the model laws.

15HC Effect of sections 15HA and 15HB on other laws relating to criminal investigation

Section 15HC will provide that participants in controlled operations (who may be law enforcement officers or civilians, including informants) will not be protected from criminal or civil liability (under new sections 15HA and 15HB) if they undertake conduct which could be authorised under other laws relating to criminal investigation. This ensures that the provisions in this new Part IAB of the Crimes Act cannot be used as substitutes for other laws.

For example, it is unlawful to forcibly enter a person's home and take private property. However, in certain circumstances this can be authorised by a search warrant. Section 15HC will ensure that the new controlled operations regime cannot be used to authorise such conduct, rather than the relevant search warrant legislation.

This provision covers conduct relating to:

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the arrest or detention of individuals

•

searches of individuals

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entry onto, or searches or inspection of, premises

•

searches, inspections or seizures of other property

•

forensic procedures

•

electronic surveillance devices or telecommunications interception

•

identification procedures

•

the acquisition or use of assumed identities, and

•

any other matter concerning powers of criminal investigation.

15HD Effect of being unaware of variation or cancellation of authority

An authority to conduct a controlled operation will be able to be varied under new sections 15GQ or 15GV, or cancelled under new section 15GY. New section 15HD provides that if an authority is varied or cancelled, but a participant in the controlled operation (who may be a law enforcement officer or a civilian, including an informant) is unaware of the variation or cancellation (and is not reckless about the existence of a variation or cancellation), then he or she is still protected under new sections 15HA and 15HB, as if the variation or cancellation had not been made.

This provision will also ensure that evidence collected by the participant will continue to be protected against exclusion (under new section 15GA) for as long as the participant is unaware of the variation or cancellation and is not reckless as to the existence of the variation or cancellation.

Subsection 15HD(3) will provide that a person is reckless about the existence of a variation or cancellation if he or she is aware of a substantial risk that the authority to conduct the controlled operation has been cancelled or varied and, taking into account the circumstances known to the person, it is unjustifiable for him or her to take the risk that the authority has not been cancelled or varied.

This provision will be narrower than the current Crimes Act provision (existing section 15PA) as it does not provide protection for a participant who is unaware that the authorisation to conduct a controlled operation has expired at the end of the period of three months after the day on which it was given. It was considered that this existing protection was too broad and could potentially excuse poor operational practices.

It is incumbent on participants in a controlled operation to be aware of the start and end dates of the initial authority to conduct the operation. However, as decisions relating to authorities can be made without the knowledge of participants, it is necessary to include limited protection for activities that are undertaken after a cancellation or variation, especially in situations where it may be difficult for the participant to contact the principal law enforcement officer.

This provision will require participants to take necessary steps to determine whether a cancellation or variation has occurred. This position is consistent with the model laws.

15HE Protection from criminal responsibility for certain ancillary conduct

Section 15HE will provide protection from criminal responsibility for a person who is connected with the controlled operation but is not necessarily an authorised participant in the operation, if that person has a belief that the activities in which they are engaging are ancillary, or related, to the authorised controlled operation. Although section 15HA will provide that participants will not be criminally responsible for authorised controlled conduct, that conduct remains unlawful in nature, so a person who assists or encourages another person to engage in that unlawful activity may be committing an offence such as aiding and abetting, or conspiracy.

For example, it might be argued that other law enforcement officers involved in authorising or overseeing a controlled operation, such as an authorising officer (defined at section 15GF) or a principal law enforcement officer (defined at section 15GC) have counselled, procured, aided or abetted the commission of an offence, or have conspired to commit an offence, thereby committing an offence themselves.

This provision is necessary to ensure that a person who engages in this 'ancillary conduct' will not be criminally responsible if he or she believed that the 'related controlled conduct' was authorised for an operation.

This section will apply to offences against Commonwealth, State or Territory law.

15HF Compensation for property loss or serious damage

Section 15HF will provide for compensation to be paid to a person who suffers loss of, or serious damage to, property, or personal injury, in the course of, or as a direct result of, an authorised controlled operation. This compensation is not accessible by a person who was involved in the commission of an offence (other than a person who is undertaking 'controlled conduct', as defined at section 15GC) or who is a law enforcement participant. These classes of people may have recourse to compensation through other avenues including court action, but cannot make a claim under this provision.

This section is intended to facilitate claims for compensation by people who suffer property loss, serious damage to property, or personal injury because of a controlled operation. Where a person can show that their loss is a direct result of an authorised operation, the Commonwealth is liable to pay compensation. An example of this is where a law enforcement participant engaged in a controlled operation loses control of a car he is driving and hits a member of the public walking on the footpath. The amount of compensation will be as agreed between the claimant and the Commonwealth, or if an agreement cannot be reached, an amount determined by a court.

This provision will be broader than the model laws as it extends compensation to persons who suffer personal injury as well as property damage. This is consistent with the current position, as existing section 15ID of the Crimes Act provides for the compensation of people who suffer personal injury or loss as a result of a controlled operation. Inclusion of personal injury in the new regime makes plain the legal position that would exist in any event, that where the Commonwealth would be tortiously liable for personal injury arising from a controlled operation, it is to pay the compensation for which it is liable at law, or otherwise a settled amount. The provision is not intended to give rise to a cause of action, or to render the Commonwealth liable in circumstances where it would not otherwise be liable.

This provision will clarify that only actions that are directly connected to the controlled operation would be compensable. Compensation payments required to be paid under this section would generally come from the operating budget of law enforcement agencies conducting the controlled operation.

15HG Notification requirements

Section 15HG will require a principal law enforcement officer (defined at section 15GC as the law enforcement officer who is responsible for the conduct of the controlled operation) to report any loss or serious damage to property, or injury to a person, occurring in the course of, or as a direct result of, an authorised controlled operation to the chief officer of the law enforcement agency (defined at section 15GC) as soon as practicable.

Given the covert nature of controlled operations, a person who suffers injury, or property loss or damage, is unlikely to know that the person who caused the injury, loss or damage was a law enforcement officer or an authorised participant in a controlled operation, and therefore that the loss or damage was the direct result of a controlled operation. In particular, as new section 15HF will permit a claim of compensation in these circumstances, it is important that a person is notified as soon as possible that the injury, damage or loss was a result of a controlled operation. Subsection 15HG(2) will place this notification obligation on the chief officer of the relevant agency.

However, the chief officer will not be required to notify the injured person or property owner until he or she is satisfied that notification would not:

•

compromise or hinder the controlled operation or any related investigation (paragraph 15HG(4)(a))

•

compromise the identity of a participant in the controlled operation (paragraph 15HG(4)(b))

•

endanger the life or safety of any person (paragraph 15HG(4)(c))

•

prejudice any legal proceeding (paragraph 15HG(4)(d)), or

•

otherwise be contrary to the public interest (paragraph 15HG(4)(e)).

Subsection 15HG(5) will allow the chief officer to delegate his or her functions under this section to certain other officers of the agency.

Subdivision B-Controlled operations under a corresponding State controlled operations law

Subdivision B of Division 3 of new Part IAB of the Crimes Act will give effect to the mutual recognition provisions in the model laws and provide protection from criminal liability for participants in controlled operations authorised under a corresponding controlled operations law of a State or Territory.

15HH Protection from criminal responsibility for conduct under a corresponding State controlled operations law

Section 15HH will provide equivalent protection from criminal liability for participants (whether law enforcement officers or civilians) in controlled operations authorised under a corresponding State controlled operations law, as will be provided to participants in a Commonwealth controlled operation by section 15HA. 'Corresponding State controlled operations law' will be defined in new section 15GC to mean a law of, or provisions of a law of, a State or Territory prescribed by the regulations to be a corresponding State controlled operations law.

While the State or Territory laws would provide protection to participants for liability for State or Territory offences, those laws cannot provide protection from liability for Commonwealth offences.

Consistent with the mutual recognition component of the model laws, this section will provide this protection. It will also ensure that State and Territory agencies are not required to seek simultaneous Commonwealth approval for their controlled operations.

The effect of this section will be that, while the relevant conduct will remain unlawful in nature, a participant who meets the requirements of the section will not be criminally responsible for the offence.

The limitations on the protection of participants from criminal liability will be the same as those that will be set out in new section 15HA.

15HI Effect of section 15HH on other laws relating to criminal investigation

Section 15HI will be the equivalent, for controlled operations authorised under a corresponding State controlled operations law, of section 15HC, which applies to controlled operations authorised under this Part of the Crimes Act. 'Corresponding State controlled operations law' will be defined in new section 15GC to mean a law of, or provisions of a law of, a State or Territory prescribed by the regulations to be a corresponding State controlled operations law.

Section 15HI will provide that participants in controlled operations (who may be law enforcement officers or civilians, including informants) will not be protected from criminal liability under new section 15HH if they undertake conduct which could be authorised under other laws relating to criminal investigation. This ensures that section 15HH will not be used as a substitute for other laws.

For example, it is unlawful to forcibly enter a person's home and take private property. However, in certain circumstances this can be authorised by a search warrant. Section 15HI will ensure that the new controlled operations regime cannot be used to authorise such conduct, rather than the relevant search warrant legislation.

The conduct covered by this provision will be the same as that covered under section 15HC.

15HJ Protection from criminal responsibility for certain ancillary conduct

Section 15HJ will be the equivalent, for controlled operations authorised under a corresponding State controlled operations law, of section 15HE, which applies to controlled operations authorised under this Part of the Crimes Act. 'Corresponding State controlled operations law' will be defined in new section 15GC to mean a law of, or provisions of a law of, a State or Territory prescribed by the regulations to be a corresponding State controlled operations law.

This provision will provide protection from criminal liability for ancillary conduct (within the meaning of the Commonwealth Criminal Code) that relates to conduct that will be protected by new section 15HH.

This provision will only provide protection from criminal liability for Commonwealth ancillary offences. The relevant State or Territory law will provide protection from criminal liability for State or Territory ancillary offences.

Subdivision B of Division 3 of new Part IAB of the Crimes Act does not provide indemnity against civil liability arising out of any conduct engaged in under a State or Territory controlled operation. That indemnity would need to be provided by the relevant State or Territory.

Division 4-Compliance and Monitoring

Division 4 of new Part IAB of the Crimes Act will deal with the unauthorised disclosure of information relating to a controlled operation and establish recordkeeping, reporting and oversight obligations for the new controlled operation regime.

The purpose of this independent oversight process is to increase accountability and transparency, and to maintain public confidence in the conduct of controlled operations.

15HK Unauthorised disclosure of information

Section 15HK will create an offence of disclosing information relating to a controlled operation. A person will be guilty of this offence if he or she intentionally discloses any relevant information and knows that, or is reckless as to whether, the information relates to an authorised controlled operation.

However, the disclosure of information relating to a controlled operation will not be an offence if the disclosure was made:

•

in connection with the administration or execution of this Part IAB of the Crimes Act

•

for the purposes of any legal proceeding arising out of, or otherwise related to this Part, or of any report of any such proceedings

•

to a legal practitioner for the purpose of obtaining legal advice in relation to the controlled operation

•

in accordance with any requirement imposed by law

•

in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency, or

•

to the Ombudsman or ACLEI, about potential misconduct during controlled operations.

As is the case with the model laws, the person who disclosed the information will need to prove that these factors exist. This is consistent with the Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge of the defendant, and it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, it is appropriate to require the defendant to adduce evidence on the matter. In this case, the 'standard evidential burden' defence is used, making the defendant bear the burden of adducing, or pointing to, evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.

The maximum penalty for this offence will be two years imprisonment. This offence will help protect participants in controlled operations and ensure the integrity of investigations.

Section 15HL: Unauthorised disclosure of information-endangering safety, etc.

Section 15HL will create an aggravated form of the offence that will be created by new section 15HK. The offence created by this section will be an indictable offence that will be committed if a person discloses information relating to a controlled operation and he or she:

•

intends that the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation, or

•

is reckless as to whether the disclosure of the information could endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.

As will be the case under new section 15HK, the disclosure will not be an offence if the disclosure was made:

•

in connection with the administration or execution of this Part IAB of the Crimes Act

•

for the purposes of any legal proceeding arising out of, or otherwise related to this Part, or of any report of any such proceedings

•

to a legal practitioner for the purpose of obtaining legal advice in relation to the controlled operation

•

in accordance with any requirement imposed by law

•

in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency, or

•

to the Ombudsman or ACLEI, about potential misconduct during controlled operations.

As will be the case with the non-aggravated offence under new section 15HK, the person who disclosed the information will need to prove that these factors exist. This is consistent with the Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge of the defendant, and it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, it is appropriate to require the defendant to adduce evidence on the matter. In this case, the 'standard evidential burden' defence is used, making the defendant bear the burden of adducing, or pointing to, evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.

The maximum penalty for this offence will be ten years imprisonment.

15HM Chief Officers' 6 monthly reports to Ombudsman and Minister

Subsection 15HM(1) will provide that the chief officers of the authorising agencies (that is, the AFP, the ACC and ACLEI) must report, every six months, to the Commonwealth Ombudsman and the Minister. The report must include details of all controlled operations authorised by the agency during the previous six months. This is consistent with a recommendation made by the Standing Committee on Legal and Constitutional Affairs in its report on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006.

Subsection 15HM(2) will require the following information to be included in each six monthly report:

•

the number of formal and urgent authorities applied for, granted and refused and the number of variations applied for, granted and refused, including the dates of those applications and decisions (paragraphs 15HM(2)(a)-(f) and (j)-(k))

•

the number of formal and urgent variations of authorities by nominated AAT members applied for, made and refused, including the dates of those applications and decisions (paragraphs 15HM(2)(g)-(h) and (l)-(m))

•

the nature of the criminal activities against which the authorised operations were directed (paragraph 15HM(2)(n))

•

the identities of the persons targeted (paragraph 15HM(2)(o))

•

the nature of controlled conduct engaged in (paragraph 15HM(2)(p))

•

details about the involvement of illicit goods in the operation (paragraph 15HM(2)(q))

•

details of any loss of or serious damage to property or personal injury (paragraphs 15HM(2)(r)-(s)), and

•

the number of expired or cancelled authorities (paragraph 15HM(2)(t)).

The final five categories of information set out above will not need to be included where the operation has not been completed. These particulars must be included in the report for the period of six months in which the operation is completed.

Subsection 15HM(2) will also require the report to contain the following details of controlled operations occurring during the six month period, by reference number:

•

date commenced (paragraph 15HM(2)(i))

•

date of formal or urgent variation (paragraph 15HM(2)(j))

•

date of formal or urgent extension (paragraphs 15HM(2)(j) and (l)), and

•

date ceased and the outcomes of the operation, or expiry date if the operation has not ceased (paragraph 15HM(2)(i)).

These details will enable the Ombudsman and the Minister to effectively follow operations from report to report.

Subsections 15HM(2A), (2B) and (2C) will provide that if a controlled operation involved illicit goods that are narcotic goods, the report on that operation must include additional information on that operation.

Subsection 15HM(2A) will provide that the report must identify people who had possession of the narcotic goods during the operation, whether the goods have been destroyed, and if they have not been destroyed, further information about their current location as set out at subsection 15HM(2B).

Subsection 15HM(2B) will provide that if the narcotic goods have not been destroyed, and the identity of the person in possession of the goods is known, the report must (if the person is a law enforcement officer) identify the law enforcement agency to which the officer belongs or (if the person is not a law enforcement officer), identify the person in possession of the narcotic goods.

Subsection 15HM(2C) will provide that if the chief officer of the authorising agency is of the view that disclosing the identity of a person who possesses or did possess the narcotic goods in question may endanger the person's safety or prejudice an investigation or prosecution, the person may instead be identified by an assumed name under which the person is operating, a code name or a code number. The subsection will also provide that this may only be done if the chief officer can match the assumed name, code name or code number to the person's identity. This will ensure that personal safety and the integrity of investigations and prosecutions are protected while still providing accountability for the location and possession of narcotic goods. This subsection is based on current subsection 15S(5) of the Crimes Act.

Subsection 15HM(3) will empower the Ombudsman to require the chief officer of each agency to furnish additional information on any authorised operation contained in the report.

15HN Chief officers' annual report to Minister and Ombudsman

Section 15HN will require the chief officer of each authorising agency (that is, the AFP, the ACC or ACLEI) to prepare an annual report to the Minister and the Ombudsman, as soon as practicable after 30 June each year, on the work and activities of the agency under this new Part IAB of the Crimes Act. The report will be required to contain the details required by subsections 15HM(2), (2A), (2B) and (2C) for all controlled operations for which the agency was the authorising agency during the previous 12 months.

Subsection 15HN(4) will provide that the report must not disclose any information that identifies, or is likely to identify, any person involved in the controlled operation. This requirement is designed to protect innocent third parties who provide assistance to a controlled operation and who, if mentioned in the report, may be incorrectly presumed to be involved in criminal activity.

Subsection 15HN(5) will provide that the report is not required to disclose any information that gives particulars of an authorised operation that is not yet completed. Those particulars must instead be included in the report for the year in which the operation is completed.

Subsection 15HN(3) will require the Minister to table the report in both Houses of the Australian Parliament within 15 days of receiving the report. However, subsection 15HN(2) will require the chief officer of each authorising agency to advise the Minister of any information that should be excluded from the report before it is tabled in Parliament, because it could reasonably be expected to endanger a person's safety, prejudice an investigation or prosecution, compromise operational activities or methodologies, or be contrary to the public interest for any other reason. If the Minister is satisfied that the information should be excluded on any of those grounds, he or she must exclude the information before tabling the report in Parliament.

Subsection 15HN(6) will provide that, if the report refers to the activities of the ACC under a corresponding State or Territory controlled operation law (as defined at section 15GC) the Minister must send a copy of the tabled report to the State or Territory Minister with responsibility for the corresponding law.

15HO Annual report by Ombudsman

Section 15HO will require the Commonwealth Ombudsman to prepare an annual report, as soon as practicable after 30 June each year, on the work and activities of the Ombudsman under this new Part IAB of the Crimes Act. The Commonwealth Ombudsman will also be required to prepare a separate annual report on its activities in relation to controlled operations conducted by the ACC under corresponding State controlled operations laws (as defined at section 15GC).

The Ombudsman's function under this Part of the Crimes Act will be to ensure that authorising agencies (that is, the AFP, the ACC and ACLEI) are accountable for the conduct of controlled operations and comply with the requirements of the legislation. The Ombudsman's powers are exercised independently and with sensitivity to police operational security and other operational matters.

The Ombudsman must give a copy of the reports required under this section to the Minister and to the chief officer of the law enforcement agency (as defined at section 15GC) to which the report relates.

Subsection 15HO(2) will provide that the report must not include information that could reasonably be expected to endanger a person's safety, prejudice an investigation or prosecution, or compromise operational activities or methodologies.

Subsection 15HO(4) will provide that the report must include comments on the comprehensiveness and adequacy of the chief officer's six-monthly and annual reports provided under new sections 15HM and 15HN.

Subsection 15HO(5) will provide that the report must not disclose any information that identifies, or is likely to identify, any person involved in the controlled operation. This requirement is designed to protect innocent third parties who provide assistance to a controlled operation and who, if mentioned in the report, may be incorrectly presumed to be involved in criminal activity.

Subsection 15HO(6) will provide that the report is not required to disclose any information that gives particulars of an authorised operation that is not yet completed. Those particulars must instead be included in the report for the year in which the operation is completed.

Subsection 15HO(3) will require the Minister to table the report in Parliament within 15 sitting days of receiving the report.

Subsection 15HO(7) will provide that, if the report refers to the activities of the ACC under a corresponding State controlled operations law (as defined at section 15GC) the Minister must send a copy of the tabled report to the State or Territory Minister with responsibility for the corresponding law.

15HP Keeping documents connected with authorised operations

Section 15HP will set out a list of documents that must be kept by the chief officer of each authorising agency (that is, the AFP, ACC and ACLEI). These documents will include:

•

controlled operations applications, authorities and variations, whether formal or urgent (paragraphs 15HP(a)-(i)), and

•

cancellations of authorities (paragraph 15HP(j)).

These documents will form the basis of the six-monthly, and annual, reports that the chief officer of each authorising agency will be required to submit to the Ombudsman and the Minister under new sections 15HM and 15HN. They will also assist the Ombudsman to assess the agency's compliance with the requirements of this new Part of the Crimes Act.

15HQ General register

Section 15HQ will oblige the chief officer of each authorising agency (that is, the AFP, ACC and ACLEI) to ensure that a general register is kept of all controlled operations applications and authorities.

Subsection 15HQ(2) will specify the information that must be recorded in the register. This information will create a detailed profile of each authority, including critical factors such as:

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when the authority was issued (subparagraph 15HQ(2)(b)(i))

•

whether (and when) it has been varied (paragraph 15HQ(2)(c))

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the offences targeted by each operation (subparagraph 15HQ(2)(b)(iv))

•

the duration of the operation (subparagraph 15HQ(2)(b)(v))

•

the identity (whether a true identity, an assumed identity, or a code name or number) of each participant in the operation (subparagraph 15HQ(2)(b)(vi))

•

the nature of the controlled conduct participants were authorised to engage in and the nature of controlled conduct that was engaged in (subparagraphs 15HQ(2)(b)(vii) to (viiia))

•

the outcomes of the operation (subparagraph 15HQ(2)(b)(x))

•

details of any illicit goods involved in the controlled operation (subparagraph 15HQ(2)(b)(xi)), and

•

details of any loss of, or damage to, property or any personal injury (subparagraphs 15HQ(2)(b)(xii)-(xiii)).

This provision will recognise the importance of keeping appropriate records to facilitate proper accountability and oversight of controlled operations. This will greatly assist the Ombudsman in its oversight role.

Subsections 15HQ(2A), (2B) and (2C) will provide that if a controlled operation involved illicit goods that are narcotic goods, the general register must include additional information on that operation.

Subsection 15HQ(2A) will provide that the general register must identify people who had possession of the narcotic goods during the operation, whether the goods have been destroyed, and if they have not been destroyed, further information about their current location as set out at subsection 15HQ(2B).

Subsection 15HQ(2B) will provide that if the narcotic goods have not been destroyed, and the identity of the person in possession of the goods is known, the general register must (if the person is a law enforcement officer) identify the law enforcement agency to which the officer belongs, or (if the person is not a law enforcement officer), identify the person in possession of the narcotic goods.

Subsection 15HQ(2C) will provide that if the chief officer of the authorising agency is of the view that disclosing the identity of a person who possesses or did possess the narcotic goods in question may endanger the person's safety or prejudice an investigation or prosecution, the person may instead be identified in the general register by an assumed name under which the person is operating, a code name or a code number. The new subsection will also provide that this may only be done if the chief officer can match the assumed name, code name or code number to the person's identity. This will ensure that personal safety and the integrity of investigations and prosecutions are protected while still providing accountability for the location and possession of narcotic goods. This subsection is based on current subsection 15S(5) of the Crimes Act.

Subsection 15HQ(3) will clarify that a controlled operations register is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 15HQ(3) will ensure readers of the Crimes Act are aware that the requirements imposed by the Legislative Instruments Act do not apply to the register established under this section.

15HR Appointment of inspecting officers

Section 15HR will allow the Ombudsman to appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this new Part IAB of the Crimes Act. An appointment must be in writing.

15HS Inspection of records by the Ombudsman

Section 15HS will require the Commonwealth Ombudsman to inspect the records kept by each authorising agency (that is, the AFP, the ACC and ACLEI) to determine the agency's compliance with the requirements of this new Part IAB of the Crimes Act.

Under subsection 15HS(2), the Ombudsman will also have responsibility for overseeing the ACC's exercise of functions and powers conferred under corresponding State or Territory controlled operations laws (as defined at section 15GC), if the State or Territory law does not provide for oversight of the ACC by a State or Territory body, such as the NSW Ombudsman.

Subsection 15HS(3) will set out the powers of the Ombudsman in relation to the inspection of an authorising agency's records. This provision will specify that the Ombudsman may enter AFP, ACC or ACLEI premises at any reasonable time after notifying the chief officer of that agency (as defined at section 15GC). The Ombudsman will then be entitled to full and free access at all reasonable times to all relevant records of these agencies, and may make copies of those records. The Ombudsman will also have the power to require a member of staff of the agency to provide any information relevant to the inspection that is in their possession or to which the member has access.

Subsection 15HS(4) will provide that the chief officer of the relevant agency is obliged to ensure that members of the agency's staff provide the Ombudsman with any assistance that the Ombudsman reasonably requires to enable it to perform its functions.

Subsection 15HS(5) will provide that the Ombudsman is not obliged to inspect agency records that relate to ongoing investigations. This is to avoid interfering in a current operation and to ensure the safety of inspecting officers.

15HT Power to obtain relevant information

Section 15HT will empower the Commonwealth Ombudsman to require a law enforcement officer of any law enforcement agency (defined at section 15GC), whether or not the agency is able to authorise controlled operations under this Part IAB of the Crimes Act, to provide written information to the Ombudsman, at a specified place and within a specified period of time, if the Ombudsman has reason to believe that the law enforcement officer is able to give the requested information.

Subsection 15HT(2) will provide that the Ombudsman must inform the law enforcement officer that he or she is required to provide this information by writing to him or her. In most cases, law enforcement officers from whom information is sought will be officers who are, or have been, involved in the conduct of the controlled operation, or who have authorised or varied a controlled operation under section 15GI or 15GQ.

Subsection 15HT(3) will provide that the Ombudsman may also require a law enforcement officer to answer questions before a specified inspecting officer (as defined at section 15HR, this will be a member of the Ombudsman's staff) at a specified place and within a specified period, or at a particular time on a specified day. The Ombudsman must inform the law enforcement officer that he or she is required to answer questions by writing to him or her.

Subsection 15HT(4) will also authorise the Ombudsman to require the chief officer of a law enforcement agency (as defined at section 15GC), or a person nominated by the chief officer, to answer questions before a specified inspecting officer, at a specified place and within a specified period, or at a particular time on a specified day. The Ombudsman must inform the chief officer that he or she is required to answer questions by writing to him or her.

The Ombudsman will only be permitted to require the chief officer to answer questions under subsection 15HT(4) if he or she has reason to believe that a law enforcement officer of the chief officer's agency, whose identity is unknown to the Ombudsman, is able to give information relevant to an inspection.

Subsection 15HT(5) will provide that the place, period and time of the day specified in any written notification of a requirement to provide information or answer questions must be reasonable having regard to the circumstances.

15HU Offence

Section 15HU will create an offence of refusing to attend before an inspecting officer (as defined at section 15HR, this will be a member of the Ombudsman's staff) to give information, or to answer questions, when required to do so under new section 15HT. The maximum penalty for this offence will be imprisonment for six months.

15HV Ombudsman to be given information and access despite other laws

Section 15HV will provide that a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division 4 of new Part IAB of the Crimes Act, on the ground that doing so:

•

would contravene a law

•

would be contrary to the public interest

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might incriminate the person or make him or her liable to a penalty, or

•

would disclose information that is protected by legal professional privilege.

However, any information provided by a person under this new Division will not be admissible in evidence against the person, except in the prosecution of the person for an offence against new sections 15HK or 15HL (which relate to the unauthorised disclosure of information relating to a controlled operation) or Parts 7.4 or 7.7 of the Criminal Code (which create offences relating to making false and misleading statements and forgery).

Subsection 15HV(3) will clarify that new sections 15HK or 15HL, or any other law, do not prevent an officer of a law enforcement agency from giving information to an inspecting officer (as defined at section 15HR, this will be a member of the Ombudsman's staff) for the purposes of an inspection of the agency's records under this Division.

Subsection 15HV(4) will build on subsection 15HV(3) by providing that nothing in sections 15HK or 15HL, or any other law, prevents an officer of a law enforcement agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to an inspecting officer as permitted by subsection 15HV(3).

Subsection 15HV(5) will clarify that where a person has provided information, produced a document or answered a question under this new Division, this does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.

15HW Exchange of information between Ombudsman and State inspecting authorities

Section 15HW will allow the Commonwealth to develop more effective and consistent inspection arrangements with other inspecting bodies, particularly State Ombudsman.

Subsection 15HW(1) will define State or Territory agency and State or Territory inspecting authority for the purposes of section 15HW.

Subsection 15HW(2) will authorise the Ombudsman to give information that relates to a State or Territory agency, that was obtained by the Ombudsman under this Division, to the relevant State or Territory inspecting authority.

Subsection 15HW(3) will provide that information can only be provided to a State or Territory inspecting authority if the Ombudsman believes that the information is necessary for the inspecting authority to perform its functions in relation to the State or Territory agency.

Subsection 15HW(4) will allow the Ombudsman to receive information relevant to the performance of the Ombudsman's functions under this Division from a State or Territory inspecting authority.

15HX Delegation by Ombudsman

Section 15HX will authorise the Ombudsman to delegate some or all of his or her powers under this Division, except the power to report to the Minister.

Subsection 15HX(1) will provide that the delegation must be in writing and may be to an APS employee responsible to the Ombudsman.

Subsection 15HX(2) will provide that a delegate under this Division is to provide a copy of the delegation instrument for inspection by a person who is affected by the exercise of any delegated power, if that person asks to see it.

15HY Ombudsman not to be sued

Section 15HY will give the Ombudsman, an inspecting officer (as defined at section 15HR, this will be a member of the Ombudsman's staff), or a person acting under an inspecting officer's direction or authority, immunity from any action, suit or proceeding for an act or omission that was done in good faith in the performance or exercise of a function or power conferred under this new Division.

Division 5-Miscellaneous

15HZ Evidence of authorities

Section 15HZ will enable an authority granted under new section 15GI, or under a corresponding State controlled operations law (as defined at section 15GC) to be tendered in evidence in legal proceedings.

Paragraph 15HZ(b) will provide that, in the absence of evidence to the contrary, the authority will be proof that the person who granted the authority was satisfied of the facts that he or she was required to be satisfied of to grant the authority.

15J Chief Executive Officer of Customs to be notified of certain authorities

Section 15J will ensure that Customs is notified of any authorised controlled operation where it is believed that the operation will involve illicit goods passing through the customs barrier. The applicant for the controlled operation must forewarn Customs in such cases.

Subsection 15J(1) will require Customs to be notified if:

•

an authority to conduct a controlled operation is granted under new section 15GI, and

•

the applicant for the authority believes that illicit goods involved in the conduct of the operation may be dealt with by Customs.

In such cases, subsection 15J(2) will require the applicant, as soon as the authority is granted, to notify the Chief Executive Officer of Customs, in writing, of:

•

the applicant's name

•

the date on which the authority was granted, and

•

to the extent to which it is known, the place/s and time/s at which the illicit goods will pass into the control of Customs.

Subsection 15J(3) will provide that a failure to comply with this section does not affect the validity of an authority to conduct a controlled operation issued under section 15GI.

Part IAC - Assumed Identities

15K Definitions

Section 15K will define terms associated with the new assumed identities regime. The key definitions will be:

authorised civilian will be defined as a person, who is not a foreign officer, or an officer of a law enforcement agency or an intelligence agency, who is authorised, by an authority granted under new section 15KB, to acquire or use an assumed identity.

An assumed identity is a false identity that is used, most commonly by law enforcement officers and intelligence officers, but sometimes by security officers and civilians, for the purpose of investigating an offence, gathering intelligence or conducting other security activities.

New subsection 15KB(3) will provide that if a civilian is authorised to acquire and use an assumed identity, a law enforcement officer or an intelligence officer must be appointed to supervise the civilian.

'Foreign officer', 'intelligence agency', 'law enforcement agency' and 'supervisor' will also be defined in this section.

authorised foreign officer - a 'foreign officer' will be defined in this section as an officer of a law enforcement, intelligence or security agency of a foreign country. An 'authorised foreign officer' will be a foreign officer who is authorised, by an authority granted under new section 15KB, to acquire or use an assumed identity.

'Law enforcement agency' and 'intelligence agency' will also be defined in this section.

authorised intelligence officer - an 'intelligence officer' will be defined in this section as an officer of the Australian Security Intelligence Organisation (ASIO), or a staff member of the Australian Secret Intelligence Service (ASIS). An 'authorised intelligence officer' will be an intelligence officer who is authorised, by an authority granted under new section 15KB, to acquire or use an assumed identity.

authorised law enforcement officer - a 'law enforcement officer' will be defined in this section as an officer or staff member of a 'law enforcement agency', which will be defined in this section as the Australian Federal Police (AFP), Customs, the Australian Crime Commission (ACC), the Australian Commission for Law Enforcement Integrity (ACLEI), the Australian Taxation Officer (ATO), or another Commonwealth agency that is specified in regulations.

An 'authorised law enforcement officer' is a law enforcement officer who is authorised, by an authority granted under new section 15KB, to acquire or use an assumed identity.

authorised person will be defined as a person who is authorised, by an authority granted under new section 15KB, to acquire or use an assumed identity. An authorised person will usually be a law enforcement officer or an intelligence officer, but in some cases may be a civilian or a foreign officer.

'Law enforcement officer', 'intelligence officer', 'foreign officer', and 'authorised civilian' will also be defined in this section.

chief officer will be defined as the head of an intelligence agency, an issuing agency or a law enforcement agency.

Chief officers of law enforcement agencies or intelligence agencies will have a number of responsibilities in the new assumed identities regime, including:

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authorising the acquisition and use of an assumed identity (section 15KB)

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varying or cancelling an authority to acquire and use an assumed identity (section 15E), and

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arranging audits, keeping appropriate records and submitting reports on their agency's use of assumed identities (sections 15LD to 15LG).

A chief officer may delegate functions that relate to the granting, variation, transfer or cancelling of authorities, in accordance with section 15LH.

'Intelligence agency', 'issuing agency' and 'law enforcement agency' will be defined in this section.

Commonwealth government issuing agency will be defined as a Commonwealth agency that issues evidence of identity (such as passports, tax file numbers etc) and that is named in an authority to acquire and use an assumed identity that is granted under section 15KB.

corresponding assumed identity law will mean a law, or a part of a law, of a State or Territory that is prescribed by the regulations to be a corresponding assumed identity law.

The mutual recognition provisions in Division 5 of this new Part IAC of the Crimes Act will allow Commonwealth law enforcement agencies and intelligence agencies to make requests for assumed identity documents to a participating jurisdiction, and for a participating jurisdiction to make requests for assumed identity documents to a Commonwealth agency.

'Participating jurisdiction' will be defined in this section as a jurisdiction in which a 'corresponding assumed identity law' is in force. As a result, the prescription of such laws under the regulations will facilitate the seamless acquisition and use of an assumed identity throughout Australia.

corresponding authority will mean an authority to acquire and use, or request the production of evidence of, an assumed identity, which is granted under a 'corresponding assumed identity law' (explained above).

The mutual recognition provisions in Division 5 of this new Part IAC of the Crimes Act will provide for corresponding authorities to be recognised as if they were granted under new Part IAC.

evidence of identity will be defined broadly to cover a variety of documents or other things that can be used to indicate a person's identity. The definition illustrates the types of documents or things that are commonly used to establish a person's identity, such as driver's licences and passports. The list contained in the definition is non-exhaustive, that is, it does not purport to include all the documents or things that might be regarded as evidence of identity.

foreign officer will be defined as an officer of a law enforcement, intelligence or security agency of a foreign country.

intelligence agency will be defined as ASIO and ASIS.

issuing agency means an agency that issues evidence of identity. Persons authorised to acquire or use assumed identities may be authorised to acquire documentation from both Commonwealth government issuing agencies (such as Medicare or the ATO), non-Commonwealth government issuing agencies (such as banks or other financial institutions) and/or State and Territory issuing agencies (such as the NSW Roads and Traffic Authority).

law enforcement agency will be defined as the AFP, Customs, the ACC, ACLEI, the ATO, or another Commonwealth agency that is specified in regulations.

National Witness Protection Program means the program established by the Witness Protection Act 1994 for the protection of people who are perceived to be in danger by reason of their testimony, or by having made a statement, and those who are related to, or associated with, such people. This new Part IAC of the Crimes Act will specifically allow AFP officers to obtain assumed identities for the purpose of performing their roles under the National Witness Protection Program (NWPP).

supervisor will be defined as the person in a law enforcement agency or an intelligence agency who is appointed, under subsection 15KB(3), to supervise a civilian who is authorised to acquire or use an assumed identity. All authorised civilians will have an appointed supervisor.

Division 2-Authority for Assumed Identity

15KA Application for authority to acquire or use assumed identity

Section 15KA will provide a formal application process for acquiring or using an assumed identity. Specifically, it will provide that a law enforcement or intelligence officer may apply in writing to a chief officer of a law enforcement or intelligence agency for an authority to acquire and/or use an assumed identity. ('Law enforcement officer', 'intelligence officer', 'chief officer', 'law enforcement agency' and 'intelligence agency' will be defined at section 15K.)

Law enforcement and intelligence officers will be able to make an application to acquire and use an assumed identity on behalf of themselves, a colleague, a foreign officer, or a civilian. (A 'foreign officer' will be defined at section 15K as an officer of a law enforcement, intelligence or security agency of a foreign country.)

If the assumed identity is to be acquired and/or used in Australia by someone other than a foreign officer, the applicant will be able to make the application to the chief officer of his or her own agency.

Any application by a law enforcement officer (other than ACC officer) for the use of an assumed identity in a foreign country, or on behalf of a foreign officer, must be made to the chief officer of the AFP. The AFP's established relationships with foreign law enforcement agencies means that it can obtain the appropriate authorisations to protect Australian officers using an assumed identity in a foreign country from criminal prosecution or civil liability. For similar reasons, ACC officers and intelligence officers will be able to apply to the chief officers of their agencies to use an assumed identity in a foreign country or for a foreign officer to use an assumed identity in Australia.

Subsection 15KA(5) will specify the information that must be contained in an application to acquire or use an assumed identity. The application will be required to provide the name of the person making the application, as well as the name of the person to be authorised to acquire or use the assumed identity. This is necessary because the applicant may not always be the person who is to acquire and use the assumed identity. For example, it may be necessary in an investigation for a civilian to acquire and use an assumed identity. In such cases, the application will also be required to provide details of the law enforcement or intelligence officer who will be appointed as the civilian's supervisor.

New subsection 15KB(3) will provide that if a civilian is authorised to acquire and use an assumed identity, a law enforcement officer or an intelligence officer must be appointed to supervise the civilian. The supervisor will manage the civilian's acquisition and use of the assumed identity. This requirement reflects the need for persons who are not law enforcement, intelligence, or foreign officers to be under the command and direction of a professional with relevant expertise and experience. Subparagraph 15KA(5)(b)(iii) will also require applications seeking an authority for a civilian to acquire or use an assumed identity to justify why it is necessary for a person who is not a law enforcement officer, intelligence officer or foreign officer to acquire or use an assumed identity.

All applications will have to explain why the assumed identity is needed (subparagraph 15KA(5)(b)(v)).

If the assumed identity is sought for the purpose of investigating or gathering intelligence about criminal activity, subparagraph 15KA(5)(b)(vi) will provide that the application must include details of the investigation or intelligence-gathering exercise in which the assumed identity will be used (to the extent that this information is known at the time). In some cases, it may not be possible for the information sought by subparagraph 15KA(5)(b)(vi) to be provided in the application. The operational realities of undercover work often require an operative to obtain one or more assumed identities prior to using the identity in the field. This is necessary to allow sufficient time for the operative to create a realistic history for the assumed identity. As a result, at the time of the application, the specific context in which the assumed identity will be used may be unknown.

Applications will be required to set out the type of identity evidence that is needed to support the assumed identity and the agencies from which the identity evidence will be sought. Additionally, the application will be required to contain information about any proposal to apply to have an entry recorded in a register of births, deaths and marriages under a corresponding assumed identity law of a State or Territory (subparagraph 15KA(5)(b)(viii)). This will enable all entries to be tracked to ensure that any entry is justified and necessary in the circumstances.

To ensure that applications are determined on the basis of all relevant material, subsection 15KA(6) will allow the chief officer (or his or her delegate) to require the applicant to provide any additional information that the chief officer (or delegate) deems necessary.

The requirements that will be imposed by this section, as well as the compliance and monitoring provisions in Division 6 of this new Part IAC of the Crimes Act, will provide the checks and balances necessary to prevent abuse of the power to obtain and use an assumed identity and ensure that use of assumed identities is confined to proper purposes.

15KB Determination of applications

Section 15KB will permit the chief officer to whom an application is made under section 15KA (or his or her delegate) to grant an 'authority' to acquire or use an assumed identity, and to impose conditions on the authority.

Subsection 15KB(2) will provide that the chief officer may not grant an authority to acquire or use an assumed identity unless he or she is satisfied on reasonable grounds that the assumed identity is necessary for one or more of the following purposes:

•

investigation of, or intelligence gathering in relation to, criminal activity

(In considering whether the authority is necessary for the purposes of an investigation or for gathering intelligence in relation to criminal activity, it will not be necessary to point to a specific criminal activity. The operational realities of undercover work often require an operative to obtain one or more assumed identities prior to using an identity in the field. This is necessary to allow sufficient time for the operative to create a realistic history for the assumed identity. As a result, at the time of the application, the specific context in which the assumed identity will be used may be unknown.)

•

the exercise of powers and the performance of functions of an intelligence agency

•

the exercise of powers and the performance of functions of the NWPP

•

training people for any of the above-mentioned purposes, or

(Considerable training is required to prepare a person to use an assumed identity before they are sent into an undercover situation. This training is done covertly, and both the instructors and students may use assumed identities for all, or part of, the training.)

•

providing an administrative function to support any of the above-mentioned purposes (including training).

(It is important to ensure that certain administrative functions cannot be traced back to the law enforcement agency, for example, depositing money into an undercover operative's bank account. If transactions are able to be traced to an account operated by the law enforcement agency, the operative could be placed in significant danger. As such, a number of these administrative functions are undertaken using an assumed identity.)

The chief officer must also be satisfied on reasonable ground that the person who would be authorised to acquire and/or use an assumed identity would be unlikely to abuse that identity.

In addition, if the assumed identity is to be acquired or used by a civilian, the chief officer must also be satisfied on reasonable grounds that the circumstances necessitate a civilian acquiring or using an assumed identity rather than a law enforcement or intelligence officer. This will ensure that the use of civilians, who would usually not have the same high level of training as law enforcement or intelligence officers, is carefully considered by authorising officers.

If the chief officer authorises a civilian to acquire or use an assumed identity, he or she will be required to appoint a law enforcement or intelligence officer as a supervisor. Subsection 15KB(4) will set out the minimum rank or position that a supervisor will need to hold in each agency.

Subsection 15KB(5) will provide that, in granting the authority, the chief officer may also authorise:

•

an application, under a corresponding law, to a State or Territory Supreme Court for an entry to be made in the relevant register of births, deaths and marriages

•

a request to an issuing agency (as defined at section 15K, this may be a government or non-government agency) for evidence to support an assumed identity (eg a passport or a driver's licence), or

•

the use of an assumed identity in a foreign country.

Subsection 15KB(6) will provide that a chief officer may only approve a request to use an assumed identity in a foreign country if he or she is satisfied that it is reasonably necessary to do so. This requirement is in addition to the other requirements that will need to be considered when deciding whether to issue an authorisation for an assumed identity. This reflects the need to ensure that an assumed identity is not used in a foreign country unless all relevant matters (eg the inability to exempt an Australian from the operation of the laws of a foreign country) have been taken into account and there is a clear need for the assumed identity to be used that way. It should be noted that this will not affect any obligation to obtain authority in the foreign country to use the assumed identity in that jurisdiction.

A separate approval will be required for every assumed identity. This will facilitate the audit process under new section 15LG. It will also ensure that the chief officer gives appropriate consideration to the need for the acquisition and use of each assumed identity.

Subsection 15KB(8) will clarify that an authority to acquire or use an assumed identity granted under this section is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 15KB(8) has been included to assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to authorities issued under this section.

15KC Form of authority

Section 15KC will specify the form that an authority to acquire or use an assumed identity must take, and the details to be included in each authority.

Subsection 15KC(1) will provide that an authority must be in writing and signed by the person granting the authority (i.e. the chief officer, or his or her delegate).

Subsection 15KC(2) will set out the detail that each authority must contain.

If the person authorised to use the assumed identity is a civilian, the authority must contain the name of the law enforcement or intelligence officer who has been appointed as the civilian's supervisor under the authority. This requirement reflects new subsection 15KB(3), which will provide that if a civilian is authorised to acquire and use an assumed identity, a law enforcement officer or an intelligence officer must be appointed to supervise the civilian. The supervisor will manage the civilian's acquisition and use of the assumed identity. This recognises the need for persons who are not law enforcement, intelligence, or foreign officers to be under the command and direction of a professional with relevant expertise and experience. Subparagraph 15KA(5)(b)(iii) will also require applications seeking an authority for a civilian to acquire or use an assumed identity to justify why it is necessary for a person who is not a law enforcement officer, intelligence officer or foreign officer to acquire or use an assumed identity.

Where the authority relates to a civilian, it must also state the period that it will remain in force. In the case of a civilian whose supervisor is a law enforcement officer, this period may not exceed three months (subparagraph 15KC(2)(h)(iii)). The authority for a civilian whose supervisor is an intelligence officer will remain in force until cancelled (see new section 15KD). This difference reflects the different operational contexts for civilians involved in law enforcement and intelligence operations. Law enforcement agencies are likely to require the assistance of a civilian in the context of a specific investigation of more defined duration, while intelligence agencies may require the assistance of a civilian in intelligence activities occurring over many years.

Paragraph 15KC(2)(d) will require the authority to detail the evidence of the assumed identity that may be acquired under the authority (eg driver's licence, passport etc). Once these initial documents of identity have been created and provided to the authorised person, he or she will then be able to use the assumed identity as if it was their true identity. In other words, once primary identification documents such as a passport have been obtained, they will be able to be used to obtain other documents and things to substantiate an identity without notifying the agency providing that secondary document or thing that the identity is an assumed identity. For example, the initially obtained documents of identity could be able to be used to open a bank account, obtain a video/DVD rental card, or to apply for benefits, such as social security payments from Centrelink, in the assumed name. The requirement that the form of authority be required to specify each issuing agency that can be requested to produce evidence to substantiate the assumed identity is an important mechanism for tracking the identity documents acquired and safeguarding the regime from abuse.

15KD Period of authority

Section 15KD will set out the period of time for which an authority for an assumed identity is valid.

An authority for a law enforcement, intelligence, or foreign officer or a civilian whose supervisor is an intelligence officer will remain in force until it is cancelled (an authority will be able to be cancelled under new section 15KE). This will allow flexibility for operational purposes. For example, during an undercover operation, it may be necessary to acquire and use an assumed identity for a certain period of time. However, it may be necessary to discontinue the assumed identity at some stage in the operation before starting to use that identity again at a later date.

To ensure that there is a sufficient level of oversight and accountability for each authority, new section 15KF will require the chief officer of the law enforcement agency to annually review each authority for which the agency has responsibility. That provision will also require the chief officer of an intelligence agency to review an authority for which they have responsibility every three years.

An authority in relation to a civilian whose supervisor is a law enforcement officer will remain in force for the period of time specified in the authority under new subparagraph 15KC(3)(h)(iii). This period of time may not be longer than three months. An assumed identity will only be granted to a civilian in circumstances where it is impossible or impracticable for a law enforcement officer to acquire or use the assumed identity. As such, it is appropriate that civilians only act under the assumed identity for a limited period of time.

For a civilian whose supervisor is an intelligence officer, the authority will remain in force until it is cancelled. However, these authorities will be reviewed annually, as the agency will have an obligation to ensure the continued protection and supervision of the civilian operative. In conducting the review, the chief officer will have a responsibility to terminate the assumed identity as soon as the particular operation, or role of the civilian, has concluded.

15KE Variation or cancellation of authority

Section 15KE will permit the chief officer of an agency to vary or cancel any authority granted by his or her agency. In addition, paragraph 15KW(3)(a) will provide that an authority may also be cancelled by the chief officer of an agency to which the authority has been transferred under section 15KV.

It is important that a chief officer is able to vary an authority, as this flexibility is needed to address any contingencies that might arise. For example, the need might arise to obtain assumed identity evidence from additional government or non-government agencies that were not listed on the original authority.

Section 15KE will require the chief officer to cancel the authority where it is no longer needed.

The provision will specify the process to vary or cancel an authority, namely by written notice, and when it is deemed to take effect. Subsection 15KE(4) will clarify that the notice to vary or cancel an authority will take effect either on a date specified in the notice, or on the day it is given to the person who is authorised to acquire or use an assumed identity, or that person's supervisor (if the authorised person is a civilian), whichever is the later of the two.

It is important that authorised persons are properly notified of any changes to authorities, where practicable, as the protection from civil and criminal liability in new sections 15KS and 15KQ will only apply to acts done in accordance with an authority.

In some cases it will not be practicable for the authorised person to be notified of the variation or cancellation, for example if the person is missing. In these circumstances, the agency will have to decide whether to cancel the authority. However, the authorised person will still have protection from civil and criminal liability with respect to their assumed identity as long as they are not reckless about the existence of the cancellation of this identity (see new section 15KU).

Subsection 15KE(5) will clarify that a variation or cancellation of an authority to acquire or use an assumed identity granted under this section is not a legislative instrument. A 'legislative instrument' is defined at section 5 of the Legislative Instruments Act 2003. In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 15KE(5) has been included to assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to authorities issued under this section.

Section 15KE will reflect the policy of the model law provision, with some adjustments in drafting to further clarify when a variation of an authority is deemed to take effect.

15KF Yearly review of authority

Section 15KF will require the chief officer of a law enforcement agency to review, every 12 months, each authority that was either granted by the chief officer, or his or her delegate, or is in the control of the law enforcement agency as a result of a transfer under new section 15KV. The purpose of the annual review is to assess whether the use of the assumed identity is still necessary.

Section 15KF will also impose a requirement on the chief officer of an intelligence agency to review each authority that was either granted by the chief officer, or his or her delegate, or is in the control of the agency as a result of a transfer under new section 15KV. However, an intelligence agency will only need to review an authority every three years, except authorities granted to civilians or foreign officers, which must be reviewed at least once every 12 months. Intelligence agencies use of assumed identities is also subject to oversight by the Inspector-General of Intelligence and Security.

If the chief officer is satisfied that the assumed identity is no longer needed, he or she will be required to cancel the authority under new section 15KE. If the chief officer determines that the assumed identity is still necessary, he or she will have to record the reasons for that decision in writing. Requiring the recording of reasons will support the integrity of the review process by ensuring that the person reviewing the authority is aware of the justification for the continuation of the authority.

Section 15KF will adopt the model provision, with an extension to cover authorisations issued by chief officers of intelligence agencies. This provision was included in the model laws to safeguard against authorisations continuing in force for an unlimited period. However, subsection 15KF(6) will clarify that any failure on the part of the chief officer (or their delegate) to either conduct a review, determine whether a particular authority should be cancelled or not, or record reasons for continuing an authority does not effect the status of the authority.

15KG Making entries in register of births, deaths or marriages

To facilitate the creation of a credible identity, section 15KG will authorise chief officers of law enforcement or intelligence agencies to apply, under a corresponding assumed identity law (as defined at section 15K) to a State or Territory Supreme Court for an order for an entry to be made in the relevant register of births, deaths and marriages (BDM register).

There is no BDM register at the Commonwealth level. The Commonwealth will therefore have to rely on the power provided under the mutual recognition provisions of State and Territory corresponding laws to request the relevant Supreme Court to authorise the required entry in that jurisdiction's BDM register. As BDM registers contain essential identifying information, it is important to have the additional safeguard of judicial oversight before an entry can be made in the register for the purpose of creating an assumed identity.

As part of the process of creating a robust assumed identity, it may also be necessary to create entries in a BDM register for fictitious 'parents' or other 'relatives' of the assumed identity. This will assist in substantiating the background and credibility of the assumed identity. The model laws intend that such entries should be allowed to be made where appropriate.

15KH Effect of authority ceasing to be in force on register of births, deaths or marriages

Section 15KH will apply where:

•

there is an entry in the BDM register of a State or Territory that relates to an assumed identity authorised under this new Part IAC of the Crimes Act, and

•

the authority for that assumed identity ceases to be in force (for example, the authority is cancelled under new section 15KE).

In these circumstances, the chief officer of the relevant agency will be required to apply, under the corresponding assumed identity law (as defined at section 15K) of the State or Territory, for an order authorising the cancellation of the relevant entry in the relevant BDM register. This application must be made within 28 days of the authority ceasing to be in force.

Division 3-Evidence of Assumed Identity

15KI Request for evidence of an assumed identity

An authority to acquire or use an assumed identity issued under section 15KB may authorise a request to be made to an issuing agency under this provision. If the authority includes such an authorisation, the chief officer who granted the authority may request the chief officer of an issuing agency to produce evidence to support the creation of the assumed identity. A request to an issuing agency may only be made if the authority authorises a request to that agency. 'Issuing agency' will be defined at section 15K to mean any government or non-government agency, such as a bank, that issues evidence of identity. 'Evidence of the assumed identity' will be defined broadly at section 15K to cover a variety of documents including passports, tax file numbers, credit/bank cards and Medicare cards.

Section 15KI will implement the model law provision, with a modification so that it also covers intelligence agencies.

Section 15KI will also specify the information that must be contained in the request to the issuing agency, including:

•

details about when the authority was made

•

details of the assumed identity, and

•

the evidence sought, to assist the issuing agency in producing the appropriate identity evidence.

To ensure the safety of the person who is authorised to acquire or use an assumed identity, and avoid compromising the operation in which they are involved, the information required to be included in a request to an issuing agency may be quite general.

The model laws only provide for the evidence to be given to the person who has been authorised to acquire or use an assumed identity. Section 15KI will also allow the evidence to be given to a law enforcement or intelligence officer, in order to protect the true identity of the authorised person. Issuing agencies will not need to, and indeed often should not, know the true identity of the authorised person. In addition, the authorised person may not, for operational reasons, be able to personally collect the evidence.

Section 15KI will not authorise a request to a State or Territory agency for evidence such as a false marriage certificate or birth certificate. This type of evidence will be dealt with at section 15KG, which will set out the process for requesting entries in State and Territory registers of births, deaths and marriages.

15KJ Government issuing agencies to comply with request

Section 15KJ will require the chief officer of a Commonwealth government issuing agency to comply with a request for assumed identity documents made under section 15KI. This provision mirrors the model law provision.

Compelling Commonwealth government agencies to comply with requests from law enforcement or intelligence agencies makes it clear that the decision to create an assumed identity rests with the law enforcement or intelligence agency, rather than the issuing agency. This has the advantage of simplifying the position of Commonwealth government issuing agencies by obviating the need for them to have a decision-making role in the assumed identity process.

15KK Non-government issuing agencies may comply with request

Section 15KK will apply to non-Commonwealth government agencies that issue evidence of identity, such as financial institutions. This provision will provide that the chief officer of a non-Commonwealth government issuing agency who receives a request for assumed identity documents under section 15KI may comply with the request, but is not required to do so. It would not be appropriate for non-Commonwealth government bodies to be compelled to comply with requests to provide evidence of an assumed identity.

For operational and security reasons, law enforcement and intelligence agencies may acquire identity evidence from non-government organisations covertly. For example, government issued sources of identity, such as a passport, will be able to be used to acquire other identifying documents from non-government agencies. This method of obtaining identity evidence will avoid alerting the non-government agency to the fact that the documentation is being acquired for an assumed identity. Information relating to an assumed identity is extremely sensitive and relates directly to the personal security and safety of covert operatives and their families. Some non-government issuing agencies will not be able to meet a reasonable level of security and confidentiality, or be able to provide adequate vetting of staff, to safely permit access to assumed identity information.

15KL Cancellation of evidence of assumed identity

Section 15KL will require the chief officer of any issuing agency (whether government or non-government) that has produced identity evidence pursuant to a request under this Part IAC of the Crimes Act, to cancel that evidence when directed to do so, in writing, by the chief officer of the agency that requested the evidence. Subsection 15KL(2) will clarify that cancelling evidence includes deleting or altering an entry in a record of information.

Paragraph 15KW(3)(c) will provide that if an authority has been transferred under new section 15KV, the chief officer of the agency to which the authority was transferred will be regarded, for the purposes of section 15KL, as the chief officer who requested the issuing agency to produce identity evidence. As a result, that chief officer will be responsible for directing an issuing agency to cancel evidence under this section. Note 2 to section 15KL directs the reader to section 15KW.

Section 15KL will mirror the model law provisions and is intended to terminate the effect of the evidence of identity that was issued.

For logistical reasons, there is no requirement imposed on an issuing agency to physically retrieve the evidence of identity. For example, cancelling a passport means that although the person may still possess the passport document, they cannot rely on it to travel into, and out of, Australia.

15KM Return of evidence of assumed identity

Section 15KM will allow the chief officer of a law enforcement or intelligence agency to request a person who was authorised to acquire or use an assumed identity to return any evidence of the assumed identity that was acquired under the authority, when the authority ceases to be in force. An authority may cease to be in force because it has been cancelled, or, in the case of an authority granted to a civilian, because it has expired.

Failure to comply with a request made under this provision will be an offence, which will be punishable by a fine.

Section 15KM is not a model law provision. This offence has been created to guard against the misuse of assumed identities. It will act as a deterrent to civilians or other authorised persons who may wish to retain, and continue to use, documentation or other evidence that substantiates false identities after the authority for the identity has ceased.

15KN Protection from criminal liability-officers of issuing agencies

Officers and employees of issuing agencies who issue evidence that supports an assumed identity are essentially providing a person with false documentation, which may constitute a Commonwealth, State or Territory offence. Section 15KN will protect these people from criminal liability for conduct that they have undertaken in response to a request under section 15KI or a direction under section 15KL. Sections 15KI and 15KL will authorise a chief officer to request, or direct, an issuing agency to produce evidence of the type that is normally produced by that agency.

Section 15KN modifies the model law provision by clarifying that the protection from criminal liability applies to Commonwealth, State and Territory offences.

15KO Indemnity for issuing agencies and officers

Section 15KO will require the Commonwealth to protect any issuing agency, and its officers, from any liability incurred as a result of responding to any request or direction under sections 15KI or 15KL. Sections 15KI and 15KL will authorise a chief officer to request, or direct, an issuing agency to produce evidence of the type that is normally produced by that agency. In both circumstances, the Commonwealth will be required to indemnify the issuing agency and its officers for any reasonable civil debt or cost incurred as a result of action to comply with the request or direction.

The extent of the Commonwealth's liability will be limited to liability that arises as a direct result of the officer or agency complying with a request in the course of their duties and pursuant to the authority. Further limitations may be set out in regulations.

Division 4 - Effect of Authority

15KP Assumed identity may be acquired and used

Section 15KP will allow a person to obtain and use an assumed identity if they have been authorised to do so under this new Part IAC of the Crimes Act and certain requirements are met.

Authorised persons will only be able to obtain and use an assumed identity within the terms and scope of the particular authority. For example, the authority specifies the type of evidence that may be obtained to substantiate the assumed identity and the purposes for which the assumed identity is to be used.

Subparagraph 15KP(a)(ii) will also provide that law enforcement officers, intelligence officers and foreign officers may only acquire and use an assumed identity in the course of duty. This requirement will not unnecessarily restrict covert operations but clarifies that the operative is only able to use the assumed identity in a manner consistent with their professional duties (i.e. not for personal reasons or gain).

In the case of an authorised civilian, in addition to acting in accordance with the authority, the civilian must act in accordance with any direction issued by their supervisor. This requirement will provide an extra level of protection and supervision by enhancing the level of control over the actions of the civilian. (New subsection 15KB(3) will provide that if a civilian is authorised to acquire and use an assumed identity, a law enforcement officer or an intelligence officer must be appointed to supervise the civilian.)

Section 15KP reflects the model law provision.

15KQ Protection from criminal liability-authorised persons

Section 15KQ will provide people who are authorised to acquire or use an assumed identity with protection from criminal liability for an act which, but for this provision, would be an offence. This protection only applies if the act is done in the course of acquiring or using an assumed identity in accordance with the lawful authority.

In the case of an authorised law enforcement, intelligence or foreign officer, in order to be protected from criminal liability, the act must be done in the course of the officer's duty. In the case of an authorised civilian, in order to be protected from criminal liability the act must be done in accordance with any directions given by the civilian's supervisor.

For example, it is an offence for a person to receive a government unemployment benefit if they are not unemployed. However, in order to substantiate an assumed identity, the authorised officer may be authorised to receive unemployment benefits despite being employed by the relevant law enforcement or intelligence agency. This provision will ensure that the authorised person is not criminally liable for claiming benefits while receiving a salary.

However, paragraph 15KQ(c) will clarify that the protection from criminal liability is only available for conduct that would not constitute an offence if the assumed identity was the person's real identity. In other words, acting under an assumed identity will not authorise the commission of other offences, or de-criminalise conduct that is not authorised, as a matter of law, by the use of any identity. For example, it is an offence for anyone to take protected fauna out of Australia. If an authorised officer who has acquired a passport to substantiate their assumed identity takes protected fauna out of Australia while travelling on that passport, he or she will still be criminally responsible for removal of the fauna from Australia (unless the conduct is authorised under another law, for example, under a controlled operation).

Other provisions will also limit or remove the protection provided in section 15KQ, for example, section 15KT (acting without possessing the appropriate qualifications).

Section 15KQ reflects the model law provision.

15KR Protection from criminal liability - third parties

Section 15KR will provide protection from criminal liability to Commonwealth officers who have engaged in conduct that would otherwise constitute a Commonwealth, State or Territory offence. The officers will be regarded as not criminally responsible for the offence if:

•

the conduct constituting the offence was engaged in in the course of the officer's duty

•

the chief officer who granted the authority to acquire or use an assumed identity authorised the conduct, and

•

if the person who is authorised to acquire or use an assumed identity under the authority had engaged in the conduct in accordance with the authority, he or she would not have been criminally liable for the offence because of the application of section 15KQ.

This will protect Commonwealth officers who are responsible for creating a complete history for the assumed identity (known as 'backstopping'). These officers will often create fictitious background information to validate the assumed identity, eg create false family history information, false school records etc. In some cases the Commonwealth officers may need to create a fictitious company in which the authorised person is a director under their assumed identity. In filling in the relevant forms needed to establish a company, these officers would need to provide details of the assumed identity (knowing these details were not those of a 'real' person). In doing so, they would knowingly provide false or misleading information to the Commonwealth. Without the protection provided by section 15KR, these officers could be liable to prosecution for a Commonwealth criminal offence.

Paragraph 15KR(d) is not intended to remove a Commonwealth officer's protection from criminal liability due to an authorised person engaging in conduct for which the authorised person is not protected from criminal responsibility. For example, if the authorised officer does something for which he or she is not qualified, eg flies a plane when he or she does not have a pilot's licence, the authorised officer will not be protected from criminal liability, due to section 15KT. However, if a Commonwealth officer, with the authorisation of the chief officer, had created a false pilot's licence for the authorised person, the Commonwealth officer would still be protected from criminal liability for creating that licence. Preparing a false qualification, in accordance with the authority granted by the chief officer, is clearly distinguishable from engaging in conduct that the false qualification purports to authorise or enable a person to undertake.

Section 15KR is not in the model laws. It extends the protections provided in the model law for authorised persons and issuing agencies to other Commonwealth officers involved in the creation of an assumed identity.

15KS Indemnity for authorised persons

Section 15KS will provide people who are authorised to acquire or use an assumed identity with protection from civil liability arising from an act done in the course of acquiring or using an assumed identity in accordance with the lawful authority.

In the case of an authorised law enforcement, intelligence or foreign officer, in order to be protected from civil liability the act must be done in the course of the officer's duty. In the case of an authorised civilian, in order to be protected from civil liability the act must be done in accordance with any directions given by the civilian's supervisor.

Where these conditions are met, the Commonwealth will have to indemnify the authorised person against any loss or damage suffered by other persons as a result of the authorised person's conduct.

Other provisions in this new Part IAC of the Crimes Act may also limit or remove the Commonwealth's obligation to indemnify the authorised person, for example, subsection 15KT (acting without possessing the appropriate qualifications).

Section 15KS reflects the model law provision.

15KT Particular qualifications

Section 15KT will have the effect of removing any protection from criminal or civil liability that will be provided to an authorised person under this new Part IAC of the Crimes Act, for anything done by the person that requires a particular qualification that the person does not possess. This will ensure that authorised persons cannot use an assumed identity to engage in activities in which they are not qualified to engage. This will be so even if the person has acquired a document that indicates that he or she has the relevant qualification.

For example, a law enforcement officer who is not medically qualified will not receive any protection from criminal liability for prescribing medication as a medical doctor, despite acting as a doctor under an authorised assumed identity and holding false medical qualifications that authorise the prescription of medication.

Section 15KT reflects the model law provision.

15KU Effect of being unaware of variation or cancellation of authority

A chief officer, or his/her delegate, will have the power to vary or cancel an authority under section 15KE. There may be occasions where the chief officer varies an authority by reducing its scope, or cancels an authority, and there is a delay in informing the authorised person of the variation or cancellation. In such cases the authorised person will be acting under a false identity that is no longer authorised, or may be engaging in conduct that is no longer authorised.

Section 15KU will provide that if an authority is varied or cancelled, but an authorised person is unaware of the variation or cancellation (and is not reckless about the existence of a variation or cancellation) then he or she is still protected from criminal and civil liability, as if the variation or cancellation had not been made.

This protection will apply for as long as the person is unaware of the variation or cancellation, but only if the person is not reckless about the existence of the variation or cancellation. Subsection 15KU(3) describes when a person is reckless for the purposes of this provision.

Section 15KU reflects the model law provision.

15KV Transfer of control of authorities

There may be occasions where, for operational or other reasons, control of an authority for an assumed identity will need to be transferred from one agency to another agency. Section 15KV will authorise the transfer of assumed identity authorities between agencies.

Subsections 15KV(1) and (2) will clarify that a transfer may be authorised by either the chief officer who originally granted the authority under section 15KB, or the chief officer who has control of an authority as a result of a previous transfer under this provision. This clarifies that there are no restrictions on the number of times that an authority may be transferred between agencies. This flexibility is necessary to ensure that control of an assumed identity rests with the appropriate agency at all times. For the same reason, section 15KV will not restrict the reasons for which an authority may be transferred.

However, section 15KV will restrict the types of authorities that can be transferred and the agency to which an authority may be transferred. Subsection 15KV(1) provides that an intelligence agency may only transfer or receive an authority from another intelligence agency, while subsection 15KV(2) provides that a law enforcement agency may only transfer or receive an authority from another law enforcement agency. In addition, subsection 15KV(6) will provide that the AFP and ACC may not transfer authorities that authorise the acquisition or use of an assumed identity in a foreign country or that have been made on behalf of a foreign officer. (Subsection 15KA will provide that only the chief officer of the AFP or the ACC may authorise the acquisition or use of an assumed identity in a foreign country or by a foreign officer.)

The purpose of restricting the type of authorities that can be transferred between agencies is to protect the operation of the rules that govern the granting of authorities by law enforcement and intelligence agencies. It is important that an authority may only be transferred to an agency that would have been capable of granting the authority in the first place. For example, an authority granted by a chief officer of an intelligence agency that allows the acquisition or use of an assumed identity by a civilian will have an unlimited operating period. In comparison, an authority granted by a chief officer of a law enforcement agency that authorises a civilian to acquire or use an assumed identity has a maximum duration of three months (see paragraph 15KC(2)(h)). Accordingly, it would be inappropriate if the chief officer of an intelligence agency was allowed to transfer an authority relating to a civilian to a chief officer of a law enforcement agency.

The process of transferring an authority will involve both the chief officer of the agency transferring the authority and the chief officer of the agency who will receive the authority (or their delegates) agreeing to the transfer in writing.

The chief officer of the agency transferring the authority (or his or her delegate) will also have a responsibility to provide the chief officer of the receiving agency with details of whether the authority has previously been reviewed and whether the authority has previously been transferred.

A transfer will be deemed to have occurred when the chief officer of the agency receiving the authority (or his or her delegate) signs and dates a copy of the authority. However, where an authority relates to an authorised civilian, the transfer will only take place when the receiving agency appoints a new supervisor for the civilian. These rules will be important for establishing the point at which responsibility and control for the assumed identity transfers, particularly in relation to civilians who will be under the direction of a new supervisor.

Subsection 15KV(6) will require the chief officer of the receiving agency (or his or her delegate) to vary the transferred authority, in accordance with new section 15KE, to state the name of the new supervisor. (New section 15E will set out how authorities may be cancelled or varied).

Section 15KV is not a model law provision. However, it recognises that agencies often work closely together and for operational reasons it may be appropriate for an authority issued by one agency to be transferred to another. A transfer may be necessary if the focus of the operation or investigation has changed. For example, a general intelligence gathering exercise may lead to an investigation of specific criminal activity.

15KW Consequences of transfer of control of authorities

Section 15KW will clarify the effect of a transfer of an assumed identity authority between agencies under section 15KV. It will provide that a transfer does not affect the status of the authority (i.e. it continues to be in force as if the transfer had not occurred).

To avoid doubt, subsection 15KW(3) will state that the powers, responsibilities and obligations that attach to the chief officer who granted the authority will transfer to the chief officer who receives the authority if a transfer occurs under section 15KV. As a result, the chief officer of the receiving agency will have:

•

the power to vary or cancel the authority

•

an obligation to review the authority

•

an obligation to report and keep records on the authority

•

an obligation to audit their records in relation to that authority every 6 months, and

•

the power to request evidence of an assumed identity.

Section 15KW will have the same effect no matter how many times an authority is transferred. For example, any obligation to audit, report on or review the granting of the authority will rest with the agency that has control of the authority at the time that the obligation must be met.

Subsection 15KW(4) will clarify that a transfer does not change the timeframe in which a review of an authority must be conducted in accordance with section 15KF. For example, if an authority granted by a law enforcement agency has been transferred a number of times in a 12 month period, only the agency that has control over the authority at the expiry of the 12 month period will be obliged to review the authority under section 15KF.

Subsection 15KW(5) will clarify that section 15KL will operate as if the receiving agency chief officer was the chief officer that made the initial request for evidence of an assumed identity.

To ensure that agencies are able to track when an authority is due to be reviewed, the chief officers will be required to record specific details of the transfer, such as the date on which the transfer was effected and when it is due to be reviewed (see sections 15KV and 15LF).

Section 15KW is not based on the model laws and has been included to clarify the operation of a transfer under section 15KV.

Division 5-Mutual Recognition under Corresponding Laws

15KX Requests to a participating jurisdiction for evidence of an assumed identity

An authority to acquire or use an assumed identity issued under section 15KB may authorise a request to be made to an issuing agency under this provision. If the authority includes such an authorisation, the chief officer who granted the authority may request the chief officer of an issuing agency of a participating jurisdiction to produce evidence to support the creation of the assumed identity. Such a request may only be made if the authority authorises a request to that agency.

A 'participating jurisdiction' is any State or Territory that has corresponding assumed identity laws in force. 'Evidence of the assumed identity' will be defined broadly at section 15K to cover a variety of documents including passports, tax file numbers, credit/bank cards and Medicare cards.

Section 15KX is the equivalent, for issuing agencies of States and Territories, of new section 15KI, which will authorise a chief officer to obtain identity evidence from Commonwealth government agencies and non-government agencies.

As with section 15KI, the model law provision has been extended to allow the evidence of the assumed identity to be given to a law enforcement or intelligence officer, in order to protect the true identity of the authorised person. The rationale for allowing an alternative person to receive the evidence is the same as applies to section 15KI - that is, to protect the true identity of the authorised person and because the authorised person may not, for operational reasons, be able to personally collect the evidence.

Section 15KX will not authorise a request to a State or Territory agency for evidence such as a false marriage certificate or birth certificate. This type of evidence will be dealt with at section 15KG, which will set out the process for requesting entries in State and Territory registers of births, deaths and marriages.

15KY Requests from a participating jurisdiction for evidence of assumed identity

Section 15KY will require the chief officer of a Commonwealth government issuing agency (other than four specified agencies that are discussed below) to comply with a request for assumed identity documents made by the chief officer of a participating State and Territory law enforcement agency. The requested identity document must be provided if:

•

it relates to an assumed identity authority that is made in accordance with a 'corresponding assumed identities law' (which will be defined at section 15K to mean a law, or a part of a law, of a State or Territory that is prescribed by the regulations)

•

that assumed identity authority authorises identity documents being obtained from a Commonwealth government agency and given to the person authorised under the authority

•

the request states a reasonable time for providing the requested documents, and

•

the request is made to the chief officer of a Commonwealth government issuing agency.

ASIO, ASIS, the Defence Signals Directorate and the Defence Imagery and Geospatial Organisation will not be required to comply with a request under this section. It would be inappropriate to oblige these agencies to produce false identity cards for State and Territory law enforcement personnel as it could jeopardise their operations.

15KZ Directions from a participating jurisdiction to cancel evidence of assumed identity

Section 15KZ will require a chief officer of a Commonwealth government issuing agency that has produced identity evidence in accordance with a request under section 15KY, to cancel that evidence when directed to do so, in writing, by the chief officer of the State or Territory agency that requested the evidence. Subsection 15KZ(2) will clarify that cancelling evidence includes deleting or altering an entry in a record of information.

Section 15KZ will adopt the model law provision. It mirrors section 15KL, which requires issuing agencies to comply with a similar direction from chief officers of Commonwealth law enforcement and intelligence agencies. Like proposed section 15KL, the purpose of the provision is to ensure that evidence of an assumed identity is cancelled when it is no longer required.

15L Indemnity for issuing agencies and officers

Section 15L will require any law enforcement or intelligence agency that makes a request to an issuing agency in a participating State or Territory to protect the issuing agency and its officers from any civil liability incurred as a result of complying with a request to produce identity evidence under section 15KX.

Section 15L will reflect the model laws and the position in section 15KO, which requires the Commonwealth to indemnify Commonwealth government issuing agencies and non-government issuing agencies from any liability incurred as a result of responding to any request or direction under sections 15KI or 15KL.

15LA Application of this Part to authorities under corresponding laws

Section 15LA will enable an assumed identity authority that was granted by a law enforcement agency in a participating State or Territory to be recognised under this new Part IAC of the Crimes Act as if the authority had been granted under section 15KB.

Section 15LA will list the provisions that are deemed to apply to an authority issued under a corresponding law. For example, an authority validly granted under a New South Wales corresponding law would be recognised as a corresponding authority by the Commonwealth, and the provisions referred to in section 15LA would apply to acts done pursuant to that corresponding authority as if it was an authority granted under section 15KB.

Section 15LA will implement the policy of the model law provision, but modifies it slightly in order to apply the additional protection from criminal liability provided to third parties under this Part of the Crimes Act (see section 15KR) to an authority granted under a corresponding law.

Division 6-Compliance and Monitoring

Subdivision A-Misuse of Assumed Identity and Information

15LB Misuse of assumed identity

Subsection 15LB(1) will create an offence for law enforcement, intelligence or foreign officers who are authorised to acquire or use evidence of an assumed identity, but do so in a manner that is inconsistent with, or falls outside, the scope of the authority and is not within the course of their duties. The provision will specify that the offence only requires the authorised officer to be reckless about whether or not they are acting in accordance with their authority or in the course of duty.

Subsection 15LB(2) will create a separate offence in relation to the misuse of an assumed identity by a civilian. This provision will make it an offence for an authorised civilian to acquire or use evidence of an assumed identity and be reckless about whether the acquisition or use is not in accordance with the authority, or not in accordance with the directions of a supervisor.

Both offences will carry a maximum penalty of two years imprisonment.

Examples of misuse of an assumed identity include:

•

obtaining a financial advantage by deception

•

evasion of fines or other penalties (such as driving demerit points), or

•

credit card fraud.

The inclusion of specific offences for misuse of an assumed identity will make it clear to those using assumed identities that the improper use of identity documents will not be tolerated. Both offences give effect to the model law offences for misuse of an assumed identity.

In addition, a person who misuses an assumed identity may also be subject to other criminal penalties because misuse of the assumed identity would result in the person losing the protection from criminal responsibility provided by section 15KQ.

15LC Disclosing information about assumed identity

Section 15LC will create three offences relating to the disclosure of information about an assumed identity.

The first offence will apply to conduct involving the disclosure of information that either reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity (subsection 15LC(1). This offence will carry a maximum penalty of two years imprisonment.

Subsections 15LC(2) and (3) will create two more serious disclosure offences where the conduct described in subsection 15LC(1) is aggravated because the person who makes the disclosure is reckless as to whether the disclosure would:

•

endanger the health or safety of any person (subsection 15LC(2)), or

•

prejudice the effective conduct of an investigation or intelligence-gathering in relation to criminal activity (subsection 15LC(3)).

These offences will be indictable offences and carry a maximum penalty of 10 years imprisonment. The maximum penalty for this offence reflects the serious consequences that a disclosure of this kind could bring to the operatives involved.

Subsection 15LC(4) will provide exceptions to the offences created under subsections 15LC(1), (2) and (3), for disclosures made in specific circumstances or for specific purposes. For example, a person will not commit an offence under 15LC(1),(2) or (3) if their role or function requires them to disclose information that reveals that a person has used an assumed identity. This would be the case for people responsible for administering assumed identities laws or undertaking related legal proceedings. For example, an officer of the Commonwealth Director of Public Prosecutions may be required to make such disclosures in prosecutions or proceeds of crime proceedings.

Note 2 will clarify that any disclosure made about the use or acquisition of an assumed identity that does not constitute an offence because of the operation of subsection 15LC(4) may still constitute an offence under other laws, such as the Intelligence Services Act 2001. Subsection 15LC(4) only provides exceptions to the offences set out at subsections 15LC(1), (2) and (3). It does not affect the operation of any other offences in the Crimes Act or any other Act.

Section 15LC will reflect the policy intention behind the model law provisions, which contain the three tiered offences relating to disclosure of information about an assumed identity. However, section 15LC has been modified to broaden the exceptions to the offences and apply the exceptions to all three offences, rather than only the less serious offence, as is the case in the model law. This ensures that a person will not commit an offence if they disclose information on an assumed identity if the disclosure is required or authorised under law and/or undertaken as a legitimate element of the discloser's work.

Subdivision B-Reporting and Record-keeping

15LD Reports about authorities for assumed identities etc - law enforcement agencies

Section 15LD will place an obligation on chief officers of law enforcement agencies to submit an annual report to the Minister about their agency's use of assumed identities. Subsection 15LD(1) will specify the information that must be contained in the report, which will include:

•

numbers of assumed identity authorities granted

•

a general description of the activities that were undertaken by authorised persons

•

whether any fraud or other unlawful activity was identified by an audit under section 15LG, and

•

any other information relating to assumed identities that the Minister considers appropriate.

Subsection 15LD(3) will require the Minister to table the report in both Houses of the Australian Parliament within 15 days of receiving the report. However, subsection 15LD(2) will require the chief officer of the law enforcement agency to advise the Minister of any information that should be excluded from the report before it is tabled in Parliament, because it could reasonably be expected to endanger a person's safety, prejudice an investigation or prosecution, or compromise operational activities or methodologies. If the Minister is satisfied that the information should be excluded on any of those grounds, he or she must exclude the information before tabling the report in Parliament.

The legislation will permit, but not require, the report to be tabled as a stand alone document. For example, as long as all legislative time limits are met, a report on assumed identities could be included in the law enforcement agency's annual report.

Section 15LD implements the model law provision.

15LE Reports about authorities for assumed identities etc - intelligence agencies

Section 15LE will require the chief officers of ASIO and ASIS to submit an annual report to the Inspector-General of Intelligence and Security about their agency's use of assumed identities.

Subsection 15LE(1) will specify the information that must be contained in the report, which will include:

•

statistical information about assumed identity authorities

•

a general description of the activities that were undertaken by authorised persons

•

whether any fraud or other unlawful activity was identified by an audit under section 15LG, and

•

any other information relating to assumed identities that the Inspector-General considers appropriate.

This proposed provision is not a model law provision because the model law provisions only cover law enforcement agencies. However, it is based on the model law provision that imposes a reporting requirement on law enforcement agencies (see section 15LD). This provision ensures that intelligence agencies are also held accountable for their use of assumed identities.

15LF Record keeping

Section 15LF will set out the records that law enforcement and intelligence agencies must keep in relation to assumed identities. The requirements will apply to all authorities granted, varied, cancelled or transferred under this new Part IAC of the Crimes Act. Section 15LF will require the recording of all the key details of each authority for the purpose of tracking the use of the authorised assumed identity.

The provision will also ensure that all appropriate records for every authority that is transferred are kept by both the originating and receiving agency. This will ensure that responsibility for every authority can be tracked.

Section 15LF will implement the model law.

15LG Audit of records

Section 15LG will require the chief officer of a law enforcement or intelligence agency to arrange for the assumed identity records for each authority, which will be required to be kept under section 15LF, to be audited at least once every six months while the authority is in force, and at least once in the six months after the cancellation or expiry of the authority. Results of audits must be reported to the chief officer of the law enforcement or intelligence agency.

Subsection 15LG(3) will allow the audit to be undertaken internally to minimise the risk of an undercover operative's real identity being disclosed. This will avoid endangering the lives of the operative and his/her family. However, to protect the integrity of the audit process, although the person conducting the audit may be a law enforcement or intelligence officer, the auditor must not be a person who:

•

granted, varied or cancelled any of the authorities to be audited

•

received control of any of the authorities to be audited, due to a transfer of an authority under section 15KV

•

was or is an authorised person under any of the authorities to be audited,

This will ensure that the person conducting the audit has no personal involvement in the relevant authority.

Division 7-General

15LH Delegation of chief officer's functions

Section 15LH will specify which functions under this new Part IAC of the Crimes Act a chief officer is able to delegate, and to whom a delegation can be made. 'Chief officer' is defined at section 15K.

Subsection 15LH(1) will provide that any other delegation provision, under any other legislation, does not apply to the delegation of a chief officer's functions under Part IAC of the Crimes Act. A chief officer may only delegate those powers in accordance with this section.

Subsection 15LH(2) will state that the chief officer can delegate any function under this Part IAC that relates to the granting, variation, transfer or cancelling of authorities. A delegation may only be made to a senior officer of the chief officer's agency. 'Senior officer' is defined in subsection 15LH(3).

The delegation power in section 15LH strikes a balance between allowing the person who is best equipped to make certain decisions about assumed identity authorities to do so, while ensuring that the chief officer of each agency retains responsibility for certain functions, particularly those that are essential for facilitating oversight of, and accountability for, the agency's use of assumed identities. This provision will also avoid practical problems that might arise if the chief officer was required to make all decisions, particularly at short notice, as he or she may not be always be available to do so.

Part IACA - Witness identity protection for operatives

Division 1 - Preliminary

15M Definitions

Section 15KD will define terms associated with the new witness identity protection regime. The key definitions will be:

assumed name will mean the name, other than the operative's real name, that the operative is known by to a party to the proceeding or a party's lawyer (this will be defined in subparagraph 15MG(1)(a)(i)). A 'party to the proceeding' will be defined in subsection 15M(1).

chief officer will mean the head of a 'law enforcement agency' (which will also be defined in this section). The chief officers will be as follows:

•

in relation to the AFP, the Commissioner of the AFP

•

in relation to Customs, the Chief Executive Officer of Customs

•

in relation to the ACC, the Chief Executive Officer of the ACC

•

in relation to ACLEI, the Integrity Commissioner

•

in relation to the Australian Taxation Officer, the Commissioner of Taxation, and

•

in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of 'law enforcement agency', the officer specified in the regulations as the chief officer of that agency.

The chief officer will have certain functions under this Part. These include the:

•

power to give a witness identity protection certificate in certain circumstances (see section 15ME)

•

responsibility to make all reasonable enquiries to make sure that all required information is included in the certificate (see subsection 15ME(2))

•

responsibility to cancel the certificate if it is no longer necessary or appropriate (see section 15MQ)

•

power to give permission to disclose information about the operative's true identity, despite the certificate (see proposed section 15MR), and

•

responsibility to report to the Minister on the use of witness identity protection certificates (see section 15MU).

Under section 15MX, the chief officer will be able to delegate any of his or her functions (except the powers of delegation) and responsibilities to a 'senior officer' (which will be defined in subsection 15MX(3))

court name will mean the name, other than the operative's real name or code, that the operative is to be known as in the proceedings where the operative is not known to any party to the proceeding or a party's lawyer. A 'party to the proceeding' will be defined in subsection 15M(1).

operative will mean someone who is authorised, either by the chief officer of a law enforcement agency under an assumed identity authorisation (see Part IAC above) or as a participant under a controlled operations authorisation (see Part IAB above). The witness identity protection regime is only available for operatives.

An operative will usually be a law enforcement officer, but in some cases an operative may be a civilian acting under an authorisation. This is necessary because under the assumed identities provisions, a civilian will be able to acquire and use an assumed identity in limited circumstances.

Intelligence officers may be authorised to acquire and use an assumed identity under new Part IAC, by the chief officer of either an intelligence agency or a law enforcement agency. However, the new witness identity protection provisions will not apply to intelligence agencies or officers. For this reason, it is made explicit in the definition of operative that it does not include a person who is or was an intelligence officer.

witness identity protection certificate will mean the certificate that is given in order to protect the identity of an operative. Section 15ME will set out the circumstances in which the certificate can be given, and section 15MG will prescribe the form of the certificate.

Subsection 15M(2) will provide that things permitted or required to be done by a party to a proceeding in this Part may be done or satisfied by a party's lawyer. This recognises that in most cases, legal counsel will be acting on behalf of a party.

15MA Meaning of criminal proceeding

The witness identity protection provisions will apply to a proceeding in which an operative is, or may be required to give evidence obtained as an operative (see section 15MD below).

A 'proceeding' will be defined in subsection 15M(1) (see above) to include a criminal or civil proceeding. Section 15MAwill define a criminal proceeding as a proceeding for the prosecution, whether summarily or on indictment, of an offence or offences. To avoid doubt, subsection 15MA(2) will include a list of proceedings which constitute part of a criminal proceeding.

The model laws do not provide a definition of a criminal or civil proceeding. The definition of criminal proceeding in section 15MA is based on section 13 of the National Security Information (Criminal and Civil Proceedings) Act 2004 ( NSI Act).

15MB Meaning of civil proceeding

Similarly, section 15MB will define a civil proceeding (for the same purpose as described above) as any proceeding in a court of the Commonwealth, a State or Territory, other than a criminal proceeding. To avoid doubt, subsection 15MB(2) will include a list of proceedings which constitute part of a civil proceeding.

For the same reasons described above, this definition is based on section 15A of the NSI Act. It is noted that proceedings for control orders or preventative detention under Part 5.3 of the Criminal Code Act 1995 are civil proceedings under this definition.

15MC When a charge is outstanding or pending

Before a witness identity protection certificate is given, the operative will be required to make a statutory declaration setting out matters that go to his or her credibility (see section 15MF below). In particular, paragraph 15MF(1)(b) will require the operative to declare whether any charges against the operative for an offence are pending or outstanding. Further, paragraph 15MF(1)(c)(ii) will require the operative (who is or was a law enforcement officer) to declare whether any allegations of professional misconduct against him or her are outstanding.

Paragraphs 15MC(1)(a) and (b) will define when a charge is considered pending or outstanding. A charge will be outstanding until it is finally dealt with by being withdrawn, dismissed or discharged by a court, or the person has been acquitted or found guilty of the offence. A charge will be pending if the person has not yet been charged with an offence but has been arrested for the offence, or the person has been served with a summons to appear before a court to answer a charge for the offence. A charge will not be pending if a person was arrested but then later released without charge. These definitions are based on the definition included in the model laws.

Paragraph 15MC(1)(c) will define when an allegation of professional misconduct is outstanding. An allegation is outstanding if the allegation has not been finally dealt with in accordance with the normal procedures that apply for dealing with such allegations. The model laws do not include a definition of when a professional misconduct allegation is outstanding. This definition has been developed to take into account that procedures for handling allegations for professional misconduct will vary between agencies.

Division 2 - Witness Identity Protection Certificates for Operatives

15MD Application of Part

Section 15MD will provide that the witness identity protection provisions will apply to a proceeding in which an operative is, or may be required to give evidence obtained as an operative. 'Operative' and 'proceeding' will be defined in subsection 15M(1) (see above and also sections 15MA and 15MB).

The witness identity protection provisions in this Part are concerned only with protecting the true identity of operatives for reasons of personal safety or to avoid prejudicing operations. The provisions are not intended to affect witnesses who are not operatives or to affect other laws which may apply to protect the safety of a witness (eg the use of physical screens or voice modification). Further, the provisions are not intended to limit the inherent ability of a court to control proceedings before it, other than as expressly provided. Subsections 15MD(2) and (3) will ensure this clear on the face of the legislation.

15ME Witness identity protection certificate

Section 15ME sets out: who can give a witness identity protection certificate; the criteria that must be satisfied before the certificate may be given; and other procedural matters that apply to giving the certificate.

Under subsection 15ME(1), only a chief officer of a law enforcement agency will be able to give a certificate for an operative who is, or may be required, to give evidence in a proceeding. 'Chief officer', 'law enforcement agency', 'operative' and 'proceeding' will be defined in subsection 15M(1) (see above).

A certificate will only be able to be given if the chief officer is satisfied on reasonable grounds that disclosure of the operative's identity or address is likely to endanger the safety of the operative or another person (such as a family member) or prejudice any current or future investigation or activity relating to security.

'Identity' will not be defined, as what could identify a person will differ depending on the circumstance. As the Joint Working Group Discussion Paper notes,

An operative who is a police officer could state this as his occupation, and this alone would not lead to the identification of him personally. However, if the operative was required to state his rank, and the current location of his work, his identity could well be revealed. [page 159]

'Investigation' will be given a broad definition in subsection 15M(1) as an investigation relating to criminal activity, including an investigation extending beyond the reach of the Commonwealth. This definition recognises the Commonwealth's unique role for investigating offences with a foreign aspect.

'Activity relating to security' could include protecting Australia from espionage or preventing attacks on Australia's defence system. 'Security' (defined in subsection 15M(1)) has the meaning given by section 4 of the Australian Security Intelligence Organisation Act 1979 ( the ASIO Act).

The Joint Working Group Discussion Paper recognised that allowing the chief officer of a law enforcement agency to make the decision about when an operative's identity should be protected would be a shift from the practice in most jurisdictions which this decision is made by the court. The Joint Working Group Discussion Paper noted that:

Disclosure, for example, in an application to a court seeking protection of identity and in filing court documents with the operative's true name, may place the investigation and the safety of law enforcement or intelligence officers and civilians associated with the operation at serious risk. [page 151]

The chief officer of a law enforcement agency is well placed to make an informed decision about the need to protect an operative's identity to ensure his or her safety or avoid prejudicing operations. In most cases, the information about undercover operative is highly sensitive and disclosing or filing this information could increase the risk to personnel and compromise operations. Where there is no objection to the witness' identity being disclosed then it will have been an unnecessary risk to disclose this information. Further, allowing a chief officer to make the decision to protect identity in the first instance is appropriate given that the court retains the discretion to reveal the operative's true identity (see section 15MM below).

The form of a certificate (that is, the matters to be included) will be prescribed in section 15MG (see below) and includes matters going to the operative's credibility. Before giving a certificate the chief officer will be required to make all reasonable inquiries to ascertain the information required by section 15MG. In recommending this requirement the Joint Working Group Report noted that:

The integrity of the certificate is crucial to the effectiveness of the model legislation. Therefore ... an express requirements for the person issuing the certificate to undertake inquiries ... [r]ather than relying on the implicit obligation of the issuer to undertake inquiries. [page 275]

Making this an express requirement ensures that the power to grant certificates is exercised with the highest degree of care.

Under subsection 15ME(3) the chief officer will not be able to give a certificate until the operative completes the requirements set out in section 15MF. Section 15MF will require an operative to make a statutory declaration setting out matters relevant to his credibility (see below for more detail). This statutory declaration will assist the chief officer in his or her decision to give a certificate.

Subsection 15ME(4) will provide that a decision to give a certificate is final, and cannot be appealed against, reviewed, called into question, quashed or invalidated in any court. Preventing a decision to give a certificate from being challenged or reviewed is part of the model laws as it would defeat the purpose of the witness identity protection regime. That is, a challenge or review would require highly sensitive operational information to be disclosed, which may risk the safety or an operative or the integrity of an operation. This provision will not prevent a court from exercising its discretion to override the certificate (see section 15MM).

Subsection 15ME(5) will clarify that subsection 15KI(4) will not prevent a decision to give a certificate being called into question in the course of a disciplinary proceeding against the person who made the decision. Proceedings for professional misconduct are, for the most part internal or conducted by agencies familiar with handling and protecting highly sensitive operational information.

Subsection 15ME(6) will provide that a certificate is required to be taken to have been properly issued and is prima facie evidence of the matters in the certificate. This will allow the operative to produce evidence to support that their identity was protected without having to reveal information that may disclose his or her true identity.

Section 15ME(7) will clarify that the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

15MF Statutory declaration by operative

Subsequent to the release of its Report in 2003, the Joint Working Group recommended a number of modifications to the model laws (which were the endorsed by SCAG). One of those modifications was that the operative provide a sworn statement setting our matters relevant to his or her credibility.

Section 15MF will reflect this modification and will require an operative to make a statutory declaration, setting out certain matters, before a certificate can be given. Subsection 15MF(1) sets out the matters that must be included in the statutory declaration. These are:

•

Details of any offence for which the operative has been convicted or found guilty.

•

Details of any pending or outstanding charges against the operative (section 15MC defines when a charge is pending or outstanding).

•

If the operative is a law enforcement officer, details of any findings of, or outstanding allegations of, professional misconduct. In this context, a law enforcement officer means an officer who is or was an officer of a 'law enforcement agency' as defined in subsection 15M(1). 'Professional misconduct' is defined in subsection 15M(1), and section 15MC defines when an allegation is outstanding.

•

Any adverse comments made by a court about the operative's credibility (this is limited to comments within the operative's knowledge).

•

Any false representations that have been made by the operative when the truth was required (subsection 15M(1) makes it clear that false representations made in the course of a controlled operation or as part of an assumed identity are not included; undercover operations by their very nature may require the operative to lie).

•

Any other matters relevant to the operative's credibility (again, this is limited to matters within the operative's knowledge).

These matters will then be reflected in the certificate, which will be filed in court and a copy will be given to each party to a proceeding (for example, defence counsel) (see sections 15MG and 15MH below).

Subsections 15MF(2) will provide that, subject to subsection 15MF(3), a person cannot be compelled to disclose or produce a statutory declaration made under this section. Subsection 15MF(3) will set out the circumstances in which a statutory declaration may be required to be disclosed or produced. These circumstances will be:

•

proceedings, including for perjury, for any falsity in the statutory declaration (that is, where the operative has not told the truth about matters concerning his or her credibility)

•

proceedings of a disciplinary nature against a law enforcement officer, or

•

investigations or inquiries into the conduct of a law enforcement officer (for example, an investigation by the Integrity Commissioner into alleged corruption by an AFP or ACC officer).

It is important to allow the statutory declaration to be disclosed or produced in these circumstances to ensure a certificate is not misused to shield an operative whose integrity is in question.

It is an offence under section 11 of the Statutory Declarations Act 1959 to intentionally make a false statement in a statutory declaration. This offence will apply to statutory declarations made by operatives under this section.

15MG Form of witness identity protection certificate

Subsection 15MG(1) will set out the information that will be required to be included in a witness identity protection certificate.

The certificate will be required to contain matters going to the operative's credibility. These are the same matters that will be required to be included in the operative's statutory declaration (see section 15MF above). Section 15MH will require that the certificate be filed in court and a copy is given to each party to a proceeding (for example, defence counsel). This will enable the operative's credibility to be challenged in the proceeding without disclosing his or her true identity. This will be an important safeguard to ensure the fairness of proceedings when a witness' identity is protected under this Part.

In addition to matters going to the operative's credibility, the certificate will be required to include:

•

the operative's assumed name or court name

•

details about the length of time the operative was involved in the investigation to which the proceeding relates and the name of the agency giving the certificate

•

the date on which the certificate is given, and

•

the grounds for issuing the certificate.

The operative's assumed name is the name by which he or she is known to a party to a proceeding (or a party's lawyer) but is not his or her real name. For example, if an operative has an assumed identity of Anne Smith, and she is known by the accused person as Anne Smith, the certificate will need to state her name as Anne Smith. Using the assumed name that is known to a party will allow, for example, a defendant to place to witness.

In some cases, an operative may be using the same assumed identity in a number of operations. Including this assumed name on the certificate could prejudice ongoing operations that are separate from the proceeding in which the operative is giving evidence. However, the assumed name will still need to be included if it is known to a party to a proceeding. In these cases, the court will be able to make a suppression order to prevent the disclosure of the assumed name outside of the court, which may help to prevent the other ongoing operations from being compromised (see section 15MK below). This example has been drawn from the Joint Working Group Discussion Paper (page 163).

A court name will be able to be used where the operative is not known to a party to the proceedings. The operative's name could be recorded, for example, as Mr Z. There will also be some situations in which the operative is using an assumed identity, but is not personally known to a party to a proceeding (or a party's lawyer). In this case, a court name could also be used, which would also avoid the ongoing use of the assumed identity being compromised. When a court name is used, a party to the proceeding (including for example the defendant) will be able to place the witness from the evidence he or she gives and by seeing the witness in court.

The grounds on which a certificate may be given will be set out in subsection 15ME(1) (see above). For example, the chief officer could record at the certificate is issue because disclosing the operative's real name could put her in danger.

Subsection 15MG(2) will make it clear that the certificate must not include any information that could reveal the operative's true identity or address. This will mean, for example, that in describing the grounds upon which the certificate has been issued the chief officer will need to ensure that this does not include information that could identify the operative.

15MH Filing and notification

This section will set out the requirements for filing, and giving copies of, the certificate ahead of the operative giving evidence. These requirements are necessary to ensure that other parties to the proceeding have sufficient notice that there will be a witness whose true identity will be protected. This will enable other parties to the proceeding to consider whether they need to apply to the court for leave to ask questions that may lead to disclosure of the witness' identity.

Subsection 15MH(1) will require the certificate to be filed in court before the operative gives evidence in the proceeding. Under subsection 15MH(2), once filed, a copy of the certificate will be required to be provided to each party to the proceeding at least 14 days before the operative gives evidence. The time for giving a copy of the certificate to a party to the proceeding can be shorter than 14 days if agreed to by the party receiving the certificate. A 'party to a proceeding' will be defined in subsection 15M(1) to mean, for a criminal proceeding - the prosecutor and each accused person, and for a civil proceeding - each person who is a party to the proceeding. 'Criminal proceeding' and 'civil proceeding' will be defined respectively in sections 15MA and 15MB (see above).

Subsection 15MH(3) will allow the court to make an order that a copy of the certificate is to be provided to another person. The onus for providing copies of the certificate under subsections 15MH(2) and (3) will lie on the person who files the certificate.

This section will be subject to section 15KM (see below).

15MI Leave for non-compliance

There may be circumstances in which a person who has filed, or proposes to file, a certificate is not able to comply with a timing requirement imposed by subsection 15MH(2) above.

For example, a person is arrested and charged with an offence, and is brought before a court to hear bail. Ordinarily, a bail hearing will take place within a time period much shorter than 14 days. Accordingly, a copy certificate given for a bail proceeding will not be able to be provided within the time frame that will be set out in subsection 15MH(2), and the other parties to the proceeding may not agree to a shorter period for a copy of the certification to be given to them.

Subsection 15MI(1) will allow the court to give leave for the person to not comply with a requirement under subsection 15MH(2) in relation to the time within which a copy of the certificate is to be given. In granting leave, the court will need to be satisfied that it was not reasonably practicable to comply with the requirement in respect of which leave is sought (subsection 15MI(2)).

15MJ Effect of witness identity protection certificate

Section 15MJ will set out the effect of a certificate that has been filed in accordance with (or taken to have been filed in accordance with) subsection 15MH(1) (see above).

The effective of a certificate will be that the operative is permitted to give evidence under the assumed name or court name provided for in the certificate. The assumed name or court name is explained above in subsection 15MG(1).

The certificate will prevent a witness (including the operative whose identity is protected by the certificate) from being asked a question, or being required to answer a question, that may disclose or lead to the operative's true identity or address, being revealed. Further, a person involved in the proceeding will not be able to make a statement that discloses, or may reveal the operative's true identity or address.

For the purposes of this section, 'a person involved in a proceeding', will be defined in subsection 15MJ(3). This definition will include parties to the proceeding, legal counsel and officers of the court.

It is recognised that one of the consequences of a certificate being filed in a proceeding is that a party to a proceeding (for example defence counsel) will be prevented from asking questions that could otherwise be asked if the certificate was not in place.

It is considered that in most cases, the credibility of an operative will be able to be tested while the operative is present in court. For example, the operative's general demeanour can be assessed regardless of whether a certificate in place.

Further, the credibility of a witness can also be tested against their criminal or professional history which will be required to be is included in the certificate, a copy of which will be required to be given to other parties to a proceeding (see sections 15MG and 15MH above). This would mean, for example, that where an operative has a prior conviction for an offence or perjury, defence counsel will be able to point to this in order to discredit the operative and argue that he or she cannot be relied upon to tell the truth.

The model laws for witness identity protection, which will be implemented by this Part, provide greater access to information about the operative than is currently available where a witness (who has an assumed identity) is protected under section 15XT of the Crimes Act. Currently, under section 15XT there is no requirement for matters going to the credibility of the operative to be disclosed to the court or any other party to the proceeding. Accordingly, the requirements in sections 15MG and 15MH that matters relevant to credibility are to be included in the certificate which is given, for example to defence counsel, will place accused persons in a much better position to place the witness and test the witnesses credibility.

Further, the court will be able to grant leave or make an order that may lead to the operative's identity being revealed in exceptional circumstances where it is in the interests of the justice to do so (see 15MM below).

Section 15MQ will allow a chief officer to cancel a certificate where he or she considers that it is no longer necessary or appropriate to prevent the disclosure of the operative's real identity or address (see below). A chief officer may consider it inappropriate for the operative's identity to be protected by a certificate where it is discovered that the operative lied in his or her statutory declaration made under section 15MF.

Further, as discussed above, an operative who makes an intentionally false statement in his or her statutory declaration (under section 15MF) could be subject to an offence under the Statutory Declarations Act.

15MK Orders to protect operative's identity etc

Subsection 15MK(1) will provide that a court in which a certificate is filed may make any order necessary to protect the true identity or address of the operative.

Subsection 15MK(4) will require the court to make an order suppressing the publication of anything said when an order is made under subsection 15MK(1). This is a further safeguard to protect the witness's true identity. This subsection will not prevent a transcript of court proceedings being taken. The court will be able to make an order for how the transcript is to be dealt with, including an order suppressing its publication (subsection 15MK(5)).

Under subsection 15MK(6) it will be an offence for a person to engage in conduct that contravenes an order made by the court under section 15MK. This offence will be punishable by a maximum penalty of two years imprisonment. The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation. Section 5.6 of the Criminal Code Act 1995 will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that an order has been made under subsection 15MK(1), (4) or (5)

•

intentionally engaged in conduct, and

•

was reckless as to the result of that conduct that the order is contravened.

Subsection 15MK(7) will make it clear that the offence that will be inserted by subsection 15MK(6) will not limit the court's inherent power to punish a person who contravenes an order with contempt of court.

15ML Disclosure of operative's identity to presiding officer

As described above, the Joint Working Group recommended a number of modifications to the model laws (which were the endorsed by SCAG). One of those modifications was to allow the judge to require the operative to disclose his or her true identity to the judge. This was to address concerns that if a judge did not know the witness's true name, he or she may be unaware of any potential bias in relation to that witness. This could arise in a number of ways including where the judge was previously practising as counsel, and the operative was a client.

Section 15ML will reflect this modification and will allow a presiding officer in a proceeding to require the operative to disclose his or her real identity to the presiding officer, provide the presiding officer with photographic evidence of that identity, or both. 'Presiding officer' in relation to a proceeding will be defined in subsection 15M(1).

Subsection 15ML(3) will provide that the presiding officer must not record information disclosed under subsection 15ML(2) or retain a copy of a document or other thing provided to the presiding officer under subsection 15ML(2). That is, a presiding officer will be prevented from taking notes about the operative's true identity or taking a copy of photographic evidence of that identity (such as a driver's licence or passport).

Subsection 15ML(3) does not form part of the model laws for witness identity protection. However, it has been included to further ensure the confidentiality of the operative's real identity. Specifically, this subsection implements a recommendation of the Senate Standing Committee of Legal and Constitutional Affairs report on the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 (the 2006 Bill). The 2006 Bill included measures to implement the model laws for witness identity protection, but lapsed when Parliament was prorogued in 2007.

15MM Disclosure of operative's identity etc despite certificate

Subsection 15MM(1) will allow a party to a proceeding, or a lawyer assisting the court in the proceeding, to apply to the court for leave:

•

to ask a question of a witness (including the operative) that may lead to the disclosure of the operative's real identity or address

•

for a person involved in the proceeding to make a statement that discloses, or may lead to the disclosure of, the operative's real identity or address

•

for an order requiring the witness (including the operative) to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative's real identity or address.

See subsection 15MM(1) for a definition of a 'party to a proceeding' and also sections 15MA and 15MB above. For the purposes of this section, a 'person involved in the proceeding' will have the same meaning as will set out in subsection 15MJ(3).

Under subsection 15MM(3), the court will be able to give leave for the party or lawyer to ask the question of the witness, or for a person to make a statement, that was requested under subsection 15MM(1). The court will also be able to make an order requiring a witness to answer a question, give evidence or information as sought under subsection 15MM(1).

Subsection 15MM(5) will provide that the court is not to give leave or make an order (as described above) unless the court is satisfied that:

•

there is evidence that, if accepted, would substantially call into question the operative's credibility

•

it would be impractical to test properly the credibility of the operative without allowing the risk of disclosure of, or disclosing, the operative true identity or address, and

•

it is in the interests of justice for the operative's credibility to be able to be tested.

The Joint Working Group Report notes that provisions for granting leave do not require the court to 'balance' competing interests. Rather, the question of risk posed by disclosure is one that a law enforcement agency is best placed to answer; what is in the interests of justice is appropriately matter for the court to consider [page 299].

The Joint Working Group Discussion Paper acknowledges the high threshold imposed by the model provisions but notes that the public interest in protecting undercover operatives is of such importance that " ...there must be a substantial reason for the 'balancing exercise' to be adjusted to allow disclosure. " [page 167] The Joint Working Group Discussion Paper further emphasises the need for a higher threshold to avoid a situation in which a defendant applies for the identity of the operative to be disclosed as a 'tactic' to discourage the witness for giving evidence.

The relevant of the true identity of an operative to his or her credibility will vary depending on the nature of the evidence to be given by the witness. The Joint Working Group Report provides useful examples of how a witness's credibility can still be tested with disclosing his or her true identity.

For example, an undercover operative may be called to give evidence about her role in an investigation in which she wore a concealed recording device and taped conversations between the defendant and herself and between the defendant and third parties in her presence. The defendant has seen transcripts of the tapes, and does not dispute that the conversations took place. The defendant may argue that credibility is in issue and the real identity of the operative must be revealed to allow the defendant to fully test her credibility. However, leave should not be granted unless the defence can show the court some reason why credibility is in fact in issue (given that the defence does not dispute that the conversations took place as taped) and that credibility can only be tested if the operative's identity is revealed. Aspects of the operative's credibility, in the 'wide sense', could still be tested without revealing her identity. For example, questions about the context surrounding the conversations could be asked and answered without the operative's identity being disclosed. [page 295]

...there may be circumstances where a witness' credit in the 'narrow sense' is in issue, but can be tested without revealing the witness' true identity. For example, an undercover police officer may be giving evidence in an assumed name used in an investigation in which he acted as a buyer, purchasing heroin from the defendant. The defendant may admit that he sold heroin to the undercover operative, but dispute the amount of heroin which was sold. In this case, where the operative and the defendant were the only people present at the transaction, whether the operative's evidence is accepted as credible will affect the outcome, and so credibility is in issue. However, it may not be necessary to reveal the identity of the operative to test credibility. The defendant may wish to pursue questioning about the operative's bias, and motive to lie in order to secure a conviction for the serious offence of trafficking in a commercial quantity of heroin (as opposed to the sale of a smaller amount of heroin, to which the defendant will admit). It may be possible for questioning along this line to proceed without revealing the operative's identity. It is then up to the jury or judge to decide whether the argument about bias is convincing. [page 295]

Subsection 15MM(6) will provide that in jury trials, applications (under subsection 15KQ(1)) must be heard in the absence of a jury.

Subsection 15MM(7) will further provide that, unless the court considers that the interests of justice require otherwise, the court must be closed when an application is made (under subsection 15MM(1)) and, if leave is given or an order made, when a question is asked (and answered), evidence is given, information is provided or a statement is made.

Subsection 15MM(8) will also require the court to make a suppression order in relation to applications, and questions, evidence, information or statements made as a consequence of applications. This subsection will not prevent a transcript of court proceedings to be taken. The court will be able to make an order for how the transcript is to be dealt with, including an order suppressing its publication (subsection 15MM(9)). Further, the court will also be able to make any other order it considers appropriate to protect the operative's true identity or address (subsection 15MM(10)).

It will be an offence for a person to engage in conduct that contravenes an order made by the court under subsections 15MM(8) - (10). This offence will be punishable by a maximum penalty of two years imprisonment. The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation. Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that an order has been made under subsections 15MM(8) - (10)

•

intentionally engaged in conduct, and

•

was reckless as to the result of that conduct that the order is contravened.

Subsection 15MM(12) will make it clear that the offence that will be inserted by subsection 15MM(11) will not limit the court's inherent power to punish a person who contravenes an order with contempt of court.

15MN Application for leave-joinder as respondent

There may be situations where an operative whose identity is protected by a certificate may not have standing to be heard by the court in determining whether his or her identity should be disclosed. For example, an operative may have infiltrated a group of people involved in organised criminal activity under an assumed identity. One of the persons involved in the group has a dispute over an alleged breach of contract. The operative appears for the plaintiff in a civil proceeding, in order to give evidence about the alleged breach. A certificate is given protecting the operative identity but opposing counsel applies to the court for leave to ask a question that may disclose the operative's true identity under section. If the plaintiff's lawyer does not object, there will be no avenue for the operative (or their agency) to be heard by the court deciding whether or not to permit the disclosure.

Section 15MN will give the court discretion to allow the operative (who is protected by the certificate) and the chief officer of the agency who gave the certificate to be joined to the application for leave as a respondent. Once joined as a respondent, the operative or chief officer will be entitled to appear and be heard on the application. This will enable the operative or chief officer to provide the court with relevant information about why the operative's identity should not be disclosed.

15MO Directions to jury

Section 15MO will apply if an operative, who has been given certificate, gives evidence in a proceeding that has a jury. The court will be required, unless it considers it inappropriate, to direct the jury not to give the evidence of the operative any more or less weight, or draw any adverse inferences against the defendant, because of the certificate, or as a result of any orders made to protect the witness. This is to ensure that verdict of the jury is not affected because of the need to protect the identity of an operative.

15MP Adjournment for appeal decision

Section 15MP will provide the court with discretion to allow an operative or a chief officer to:

•

seek an adjournment to decide whether to appeal a decision or order under proposed sections 15MI, 15MK or 15MM

•

appeal against a decision or order, or

•

be joined as a respondent to an appeal against a decision or order.

This is consistent with section 15MN which allows an operative, or the chief officer of the agency who gave the certificate, to make representations to the court as to why the operative's identity should not be disclosed.

Subsection 15MP(1) will state that the section will apply if a court gives or refuses to give leave under proposed sections 15MI or 15MM or the court makes, or refuses to make, an order under proposed sections 15MK or 15MM.

Subsection 15MP(2) will ensure that a court that has jurisdiction to hear and determine appeals from a judgement will also have jurisdiction to hear and determine an appeal against a decision to give or refuse leave, or make or refuse to make an order.

Subsection 15MP(3) will ensure that a party to the proceedings, or the operative or chief officer who gave the certificate, is able to appeal a decision to give or refuse leave or make or refuse to make an order. An operative or chief officer who gave the certificate will only be able to appeal if the court is satisfied that they have a sufficient interest in the decision.

Subsection 15MP(4) will ensure that where a party to the proceedings appeals a decision to give or refuse leave, or make or refuse to make an order, the appeal court may allow the operative or chief officer who gave the certificate to join the appeal as a respondent. This is consistent with section 15MN, which allows the operative or chief officer to be joined as a respondent to an application for leave or an order. It is appropriate that the operative or chief officer can also be heard in an appeal to that decision. The operative or chief officer can only be joined if the appeal court is satisfied that they have a sufficient interest in the decision.

Subsection 15MP(5) will allow a party to the proceeding, or the operative or the chief officer who issued the certificate, to apply to the original court for an adjournment to appeal, or decide whether to appeal, a decision to give or refuse leave, or make or refuse to make an order.

Subsection 15MP(6) will state that if such an application is made to the court, the court must grant the adjournment. This will mean that the proceedings cannot continue until either a decision has been made by the party not to appeal or the appeal has been heard. An adjournment is appropriate because otherwise the appeal would not take place until after the operative's true identity had been disclosed. By allowing an appeal at the time the original decision is made by the Court, the matter can be heard by the appeal court before the operatives true identity is revealed. To wait until after the proceeding has concluded to hear the appeal would frustrate the objectives of the witness identity protection regime.

15MQ Witness identity protection certificate-cancellation

Witness identity protection certificates protect the operative's true identity and address on an ongoing basis. However, there is no need for a certificate to remain in place if there is no longer any requirement to protect the operative's identity.

Section 15MQ will provide that a chief officer will be required to cancel a witness identity protection certificate if the chief officer believes that it is no longer necessary or appropriate to prevent the disclosure of the operative's identity or address. If a certificate has already been filed in a court, the chief officer will be required to immediately give written notice to the court and each party to the proceeding that the certificate has been cancelled.

This will provide a safeguard against the certificate being used as a shield against investigation or prosecution in the event of any improper conduct. For example, an operative whose identity is protected by a certificate might give false evidence in a proceeding. In such cases, it is important that the operative be prosecuted for an offence of perjury. This may require revealing the operative's identity, and would clearly be in the interests of justice to do so.

15MR Permission to give information disclosing operative's identity etc

There may be circumstances in which information that discloses, or may lead to the disclosure of, the operative's true identity or address needs to be given outside the context of the proceeding for which the certificate has been filed. The Joint Working Group Discussion Paper gives the example of an operative who is giving evidence under an assumed or court name in a criminal proceeding, who is required to give evidence at a disciplinary hearing of another police officer (page 181).

Section 15MR will provide that a chief officer may give written permission to a person (including the operative) to give information outside the proceeding that may disclose or may lead to the disclosure of the operative's identity or address. This will only be able to be done if the chief officer believes it is necessary or appropriate for the information to be given.

The written permission will be required to include certain matters, including: the name the person who may give the information, the name of the person to whom the information may be given, the information that may be given and how the information may be given. The certificate would otherwise remain in force and the operative's true identity or address could not be disclosed for any other reason.

15MS Disclosure offences

These offences, and the penalties attached, are intended to protect the safety of operatives, and assist the effective conduct of undercover operations. While the certificate relates to only one proceeding, the protection of the operative's identity is ongoing and it may be important to continue to protect the operative's true identity even after that proceeding has finished.

Section 15MS will create three offences that relate to the disclosure of an operative's identity or address where the operative has been given a witness identity protection certificate.

Under subsection 15MS(1), it will be an offence for a person to engage in conduct that results in the disclosure of the operative's true identity or address. This offence will be punishable by a maximum penalty of two years imprisonment. The penalty for this offence is consistent with other non-disclosure offences in Commonwealth legislation.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that a certificate has been given

•

was reckless as to the circumstance that the certificate has not been cancelled

•

intentionally engages in conduct, and

•

was reckless as to the result of that conduct that the operative's true identity or address is disclosed.

Paragraph 15MS(1)(e) is an exception to the offence, and subsection 13.3(3) of the Criminal Code will apply. That is, it will be an exception to the offence if the conduct that the person engaged in was required, authorised or permitted under sections 15ML, 15MM or 15MR. A defendant wishing to rely on the exceptions in paragraph 15MS(1)(e) to avoid criminal responsibility bears the evidential burden in relation to that matter. The evidential burden of proof is set out in subsection 13.3(6) and requires the defendant to adduce or point to evidence that suggests a reasonably possibility that the matter exists or does not exist. The prosecution would then need to refute this beyond reasonable doubt.

Under subsection 15MS(2), it will be an offence for a person to engage in conduct that results in the disclosure of the operative's true identity or address and the person is reckless as to whether their conduct will endanger the health or safety of another person. This offence will be punishable by a maximum penalty of 10 years imprisonment. Setting the penalty at 10 years imprisonment is appropriate to ensure a significant deterrent for disclosing an operative's true identity, where such a disclosure will endanger the health or safety of that operative or another person. This penalty is consistent with the penalty recommended in the model laws.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 15MS(2)(a) - (d). Paragraph 15MS(2)(f) provides that the fault element for that physical element is recklessness. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that a certificate has been given

•

was reckless as to the circumstance that the certificate has not been cancelled

•

intentionally engages in conduct

•

was reckless as to the result of that conduct that the operative's true identity or address is disclosed, and

•

was reckless as to whether his or her conduct will endanger the health or safety of a person.

It will not be necessary for the prosecution to prove that the health or safety of a person was in fact endangered.

Similar to the offence described above, paragraph 15MS(2)(e) is an exception to the offence, and subsection 13.3(3) of the Criminal Code will apply. That is, it will be an exception to the offence if the conduct that the person engaged in was required, authorised or permitted under sections 15ML, 15MM or 15MR. A defendant wishing to rely on the exceptions in paragraph 15MS(2)(e) to avoid criminal responsibility bears the evidential burden in relation to that matter. The evidential burden of proof is set out in subsection 13.3(6) and requires the defendant to adduce or point to evidence that suggests a reasonably possibility that the matter exists or does not exist. The prosecution would then need to refute this beyond reasonable doubt.

Under subsection 15MS(3), it will be an offence for a person to engage in conduct that results in the disclosure of the operative's true identity or address and the person is reckless as to whether their conduct will prejudice any current or future investigation or activity relating to security.

This offence will be punishable by a maximum penalty of 10 years imprisonment. Setting the penalty at 10 years imprisonment is appropriate to ensure a significant deterrent for disclosing an operative's true identity, where such a disclosure will prejudice an investigation or activity relating to security. The penalty is consistent with the penalty found in the model laws.

Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 15MS(3)(a) - (d). Paragraph 15MS(3)(f) provides that the fault element for that physical element is recklessness. To establish this offence, the prosecution will need to prove beyond reasonable doubt that the person:

•

was reckless as to the circumstance that a certificate has been given

•

was reckless as to the circumstance that the certificate has not been cancelled

•

intentionally engages in conduct

•

was reckless as to the result of that conduct that the operative's true identity or address is disclosed, and

•

was reckless as to whether his or her conduct will prejudice any current or future investigation or any current or future activity relating to security.

It will not necessary for the prosecution to prove that an investigation or activity relating to security was in fact prejudiced.

Similar to the offences described above, paragraph 15MS(3)(e) is an exception to the offence, and subsection 13.3(3) of the Criminal Code will apply. That is, it will be an exception to the offence if the conduct that the person engaged in was required, authorised or permitted under sections 15ML, 15MM or 15MR. A defendant wishing to rely on the exceptions in paragraph 15MS(3)(e) to avoid criminal responsibility bears the evidential burden in relation to that matter. The evidential burden of proof is set out in subsection 13.3(6) and requires the defendant to adduce or point to evidence that suggests a reasonably possibility that the matter exists or does not exist. The prosecution would then need to refute this beyond reasonable doubt.

15MT Evidentiary certificates

Section 15MS will create three offences that relate to the disclosure of an operative's identity or address where the operative has been given a witness identity protection certificate (see above).

For each of the offences in section 15MS, the prosecution will need to prove, beyond reasonable doubt, that the person was reckless as to the circumstance that the certificate has not been cancelled. Exceptions to each of the offences in section 15MS will apply where a person has engaged in conduct that was required, authorised or permitted under sections 15ML, 15MM or 15MR.

Section 15MT will allow a chief officer to sign a certificate stating, for the purposes of the matters described above, whether a certificate has not been cancelled, or whether the conduct that is the subject of the offence was required, authorised by or permitted under sections 15ML, 15MM or 15MR.

This certificate will be able to be used as prima facie evidence of the matters that are certified in it. This would avoid the need for the chief officer to attend and give evidence in person. The defendant will still be able to raise evidence to rebut the certificate.

15MU Reports about witness identity protection certificates

As witness identity protection certificates should only be given in exceptional circumstances in order to protect the safety of persons or avoid compromising operations, it will be important to have appropriate accountability mechanisms in place.

Section 15MU will require the chief officer of law enforcement agency to submit an annual report to the Minister about the certificates given by the chief officer during that year. Subsection 15MU(2) will set out the information that must be included in the report.

Section 15MU(3) will make it clear that the report is not to contain information that discloses, or may lead to the disclosure of, the operative's true identity or address, unless the certificate in relation to that operative has been cancelled.

The Minister must cause a copy of the report to be laid before each House of Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

There is no requirement that the annual report on witness identity protection certificates be tabled as a stand alone document. This means that provided the requirements in section 15MU are met, a report on witness identity certificates could be included in the agency's annual report.

Division 3 - Mutual Recognition under Corresponding Laws

15MW Recognition of witness identity protection certificates under corresponding laws

The model laws include provisions which provide for the recognition of witness identity protection certificates issued under corresponding laws. This is to enable undercover operatives - who often have to work across jurisdictions - to be protected by a certificate issued by their home agency that is recognised in proceedings which may be held in another jurisdiction.

Section 15MW will allow certificates issued under corresponding State or Territory laws as if they were issued under this Part. For example, this will mean that the non-disclosure offences in section 15MS would apply regardless of the jurisdiction in which the certificate was given (provided the law under which the certificate was given is recognised as a corresponding law).

A 'corresponding witness identity protection law' will be defined in subsection 15M(1) as a law or provision of a State or Territory that is prescribed by the regulations.

Division 4 - General

15MX Delegation

Section 15MX will allow the chief officer to delegate any of his or her functions (except the power of delegation) under this Part to a senior officer of the agency. 'Senior Officer' will be defined in subsection 15MX(3) for each of the law enforcement to which this Part applies. Where regulations specify an agency as a 'law enforcement agency', a senior officer of that agency will be the officer specified in those regulations to be a senior officer of that agency.

This delegation is appropriately limited to very senior officials within the agency and is necessary to facilitate the effective use of the witness identity protection certificates.

Part 2: Provisions relating to pre-commencement authorisations under State controlled operations law

Subdivision B of Division 3 of new Part IAB of the Crimes Act will provide protection from criminal liability for participants in controlled operations authorised under a corresponding controlled operations law of a State or Territory. This protection will operate prospectively (that is, it will apply to relevant operations authorised on or after commencement of the new Part).

The recent High Court case of Gedeon v Commissioner of New South Wales Crime Commission [ 2008] HCA 43 highlighted the vulnerability of evidence arising from controlled operations that had been validly authorised under a State or Territory law and involved the commission of a Commonwealth offence.

It is not uncommon for a State or Territory controlled operation to involve the commission of a Commonwealth offence as most controlled operations relate to drug offences, and most State or Territory drug offences are also offences against Commonwealth law. It has not been the practice of State and Territory law enforcement agencies to seek additional Commonwealth authority for their controlled operations. Officers of those agencies may therefore still be liable for any Commonwealth offences, and evidence obtained from these operations may be at risk of challenge.

Following Gedeon, there is a real risk that a court could exclude evidence obtained in such a controlled operation if that operation had not also been authorised under Commonwealth law.

To address this issue, this Part 2 of Schedule 3 to the Bill seeks to provide retrospective protection for State and Territory controlled operations authorised prior to commencement of Schedule 3.

The items in this Part will operate to provide retrospective protection for evidence obtained from, and participants in, operations authorised under a State or Territory controlled operations law which may have involved the commission of Commonwealth offences.

Item 11 - Relationship to other laws and matters

Item 11 is the equivalent, for controlled operations validly authorised under a State controlled operations law before commencement of this Schedule 3, of new section 15GA of the Crimes Act, which applies to controlled operations authorised under State or Territory law after commencement of this Schedule 3.

This item will protect evidence obtained under a State controlled operations law, which, in this context, means a law of a State or Territory, or a provision of a law of a State or Territory, prescribed by regulation. This means that the protection offered by this item will not be limited to corresponding controlled operations laws, but will cover any controlled operations law that is, or has been, in force in a State or Territory.

The reason for the broader definition is that 'corresponding controlled operation laws' could only have been in place since 2003 at the earliest, when the Joint Working Group published its model controlled operation laws. However, controlled operations laws have existed since at least 1996.

Subitem 11(3) provides that the protection given by this item will apply to controlled operations authorised prior to the commencement of this Schedule 3, whether the conduct otherwise constituting the Commonwealth offence occurred before, on or after commencement of the Schedule. Subitem 11(3) provides that the protection will also apply to proceedings, including appeals, instituted before, on or after commencement of this Schedule 3.

However, subitem 11(5) provides that one exception to this application is that the Crown will not be permitted to appeal a ruling that a court made, prior to commencement of this Schedule 3, to exclude evidence on the basis that it was illegally obtained. This restriction is included to ensure that where an accused person has had a ruling made in his or her favour, these retrospective amendments will not provide a ground of appeal for the prosecution.

Item 12 - Protection from criminal responsibility for conduct engaged in before, on or after commencement under a pre-commencement State authorisation

Item 12 is the equivalent (for conduct engaged in before, on or after commencement of these amendments, in a controlled operation validly authorised under a State or Territory law before commencement of these amendments) of new section 15HH of the Crimes Act (which applies to controlled operations authorised under State or Territory law after commencement of this Schedule 3).

As with the prospective protection which will be provided by section 15HH, this item will ensure that participants who have engaged in conduct that has been authorised under a controlled operation are not criminally liable.

Item 13 - Effect of item 12 on other laws relating to criminal investigation

Item 13 is the equivalent, for controlled operations validly authorised under a State or Territory law before commencement of these amendments, of new section 15HI of the Crimes Act, which applies to controlled operations authorised under a State or Territory law after commencement of this Schedule 3. It provides that the protection from criminal liability does not extend to other investigative conduct that is, or could have been, authorised under Commonwealth, State or Territory law.

Item 14 - Protection from criminal responsibility for certain ancillary conduct

Item 14 is the equivalent, for controlled operations validly authorised before commencement, of new section 15HJ of the Crimes Act, which applies to controlled operations authorised under a State or Territory law after commencement of this Schedule 3. It provides protection from criminal liability for ancillary conduct (within the meaning of the Criminal Code) that relates to conduct protected by item 12.

This provision will only provide protection from criminal liability for Commonwealth ancillary offences. The relevant State or Territory law would have included protection against State or Territory ancillary offences.

Item 15 - Evidence of authorities

Item 15 is the equivalent, for controlled operations validly authorised before commencement, of new section 15J of the Crimes Act, which applies to controlled operations authorised under a State or Territory law after commencement of this Schedule 3.

It provides that an authority issued, before commencement of these amendments, under a State or Territory controlled operations law is, in the absence of evidence to the contrary, proof that the person who granted the authority was satisfied of the facts that he or she was required to be satisfied of to grant the authority.

Item 16 - Definitions

Item 16 will provide definitions for this Part 2 of Schedule 3.

It should be noted that a State controlled operations law, which will be defined under this Part is different to a corresponding State controlled operations law, which will be defined in Part 1 of Schedule 3.

A 'State controlled operations law' is a State or Territory law, or provisions of a State or Territory law, prescribed by regulation. A State controlled operations law will include legislation and provisions that are not based on the model legislation. This will ensure that there is retrospective protection for evidence obtained from, and participants in, all operations validly authorised under State or Territory laws which may have involved the commission of Commonwealth offences.

Part 3-General application and transitional provisions

Item 17 - Controlled operations authorised before commencement continue under old law

This item is a transitional provision that will ensure that controlled operations authorised under the current Part IAB of the Crimes Act continue in force. The current Part IAB, although repealed, will continue to apply to those operations as though it had not been repealed.

Item 18 - Controlled operations - continuation of Division 3 of Part IAB

This item is a savings provision that will ensure that controlled operations authorised prior to the commencement of the current Part IAB of the Crimes Act, which were continued in force by Division 3 of that Part, are not be deemed invalid because of the repeal of current Part IAB. In the absence of this provision, controlled operations authorised prior to the commencement of the current Part IAB (in 1996) could be invalidated. This could lead to challenges against evidence obtained from those operations being introduced in court proceedings.

Item 19 - Assumed identities - authorisations taken to be authority under new law

This item is a transitional provision that will ensure that any assumed identity authorities granted under the current Part IAC of the Crimes Act continue in force. The current Part IAC, although repealed, will continue to apply to those authorities as though it had not been repealed.

Item 20 - Assumed identities - continuation of old law in relation to States without corresponding laws

This item will ensure that current section 15XH of the Crimes Act will continue to operate in relation to a State or Territory that is not a participating jurisdiction.

Section 15XH states that the head of a participating State or Territory agency (defined at existing section 15XA of the Crimes Act) may authorise a person to acquire evidence of an assumed identity from any Commonwealth agency. This means that, despite the repeal of section 15XH, any State or Territory that is not a participating jurisdiction (which will be defined at new section 15K as a jurisdiction that has a corresponding assumed identity law that is prescribed in regulations) can still acquire evidence of an assumed identity from a Commonwealth agency.

This item will also ensure that current Part IAC of the Crimes Act, and any other provision of the Crimes Act that relates to current Part IAC, continues to have effect in relation to authorisations granted under current Part IAC, as if Part IAC had not been repealed.

Part 4 - Consequential amendments of other legislation

Customs Act 1901

Item 11 - Section 219ZJA of the Customs Act 1901

This item will update a reference in the Customs Act 1901 to a current provision of the Crimes Act, to ensure that the Customs Act contains a reference to a provision in new Part IAB of the Crimes Act.