Crimes (Controlled Operations) Act 2008

This Act is the Crimes (Controlled Operations) Act 2008.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘urgent application—see section 9.’ means that the term ‘urgent application’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

The objects of this Act are—

to provide for the authorisation, conduct and monitoring of controlled operations, including operations conducted in the ACT, in the ACT and 1 or more other jurisdictions or in 1 or more participating jurisdictions—

for the purpose of obtaining evidence that may lead to the prosecution of people for particular offences; and

that involve or may involve conduct for which participants in the operation would otherwise be criminally responsible; and

to facilitate mutual recognition of things done in relation to controlled operations authorised under laws of other jurisdictions corresponding to this Act; and

to ensure, as far as practicable, that appropriately trained people may act as participants in authorised operations; and

to ensure that a person who may act as a participant in an authorised operation engages in otherwise unlawful activities only as part of the authorised operation; and

to provide appropriate protection from civil and criminal liability for people acting under this Act; and

to clarify the status of evidence obtained by participants in authorised operations.

This Act does not affect any territory law that authorises, controls or monitors the conduct of operations wholly within the ACT—

that are for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence; and

that involve, or may involve, conduct for which participants in the operation would otherwise be criminally responsible.

Note Territory law includes the common law (see Legislation Act, dict, pt 1, def territory law and law, of the Territory).

A function conferred in relation to the activities of the Australian Crime Commission under this Act is only conferred for the purpose of the function conferred on the Australian Crime Commission under the Australian Crime Commission (ACT) Act 2003 relating to suspected serious and organised crime as defined in that Act.

Subject to subsection (4), this Act does not limit a discretion a court has—

to admit or exclude evidence in a proceeding; or

to stay a criminal proceeding in the interests of justice.

However, in deciding whether evidence should be admitted or excluded in a proceeding, the fact that the evidence was obtained as a result of a person engaging in criminal activity or corrupt conduct is to be disregarded if—

the person was a participant or corresponding participant acting in the course of an authorised operation or corresponding authorised operation; and

the criminal activity or corrupt conduct was controlled conduct within the meaning of this Act or controlled conduct within the meaning of a corresponding law.

The following Acts do not apply to investigations, operations, activities and records under this Act:

the Freedom of Information Act 2016;

the Territory Records Act 2002.

For this Act, a controlled operation in relation to a relevant offence is taken to be conducted in the ACT, whether or not it is also conducted in another jurisdiction, if a participant in the operation is a law enforcement officer of the ACT.

Part 2 Authorisation of controlled operations

A law enforcement officer of a law enforcement agency may apply to the chief officer of the agency for an authority to conduct a controlled operation on behalf of the agency.

An application for an authority may be made—

in writing signed by the applicant (a standard application); or

if the applicant has reason to believe that the delay caused by making a standard application may affect the success of the operation—orally in person or by telephone, fax, email or any other means of communication (an urgent application).

This part does not prevent an application for an authority being made in relation to a controlled operation that has been the subject of a previous application.

In any application, whether standard or urgent, the applicant must—

provide sufficient information to enable the chief officer to decide whether or not to grant the application; and

state whether or not the proposed operation, or any other controlled operation in relation to the same criminal activity or corrupt conduct, has been the subject of an earlier application for an authority or amendment of an authority and, if so, whether or not the authority or amendment was granted.

The chief officer may require the applicant to give the chief officer the additional information the chief officer reasonably needs to decide the application.

As soon as practicable after making an urgent application, the applicant must make a written record of the application and give a copy of it to the chief officer.

After considering an application for an authority to conduct a controlled operation, and any additional information given under section 9 (5), the chief officer may—

authorise the operation by granting the authority, either unconditionally or subject to conditions; or

refuse the application.

An authority to conduct a controlled operation may not be granted unless the chief officer is satisfied on reasonable grounds that—

a relevant offence has been, is being or is likely to be committed; and

the controlled operation will be, or is likely to be, conducted in the ACT, in the ACT and 1 or more other jurisdictions or in 1 or more participating jurisdictions; and

the nature and extent of the suspected criminal activity or corrupt conduct justify the conduct of a controlled operation in the ACT, in the ACT and 1 or more other jurisdictions or in 1 or more participating jurisdictions; and

any unlawful conduct involved in conducting the operation will be limited to the minimum necessary to conduct an effective controlled operation; and

the operation will be conducted in a way that will minimise the risk of more illicit goods being under the control of people, other than law enforcement officers, at the end of the operation than are reasonably necessary to enable the officers to achieve the purpose of the controlled operation; and

the proposed controlled conduct will be able to be accounted for in a way that will enable the reporting requirements of part 4 to be complied with; and

the operation will not be conducted in a way that a person is likely to be induced to—

commit an offence against a law of any jurisdiction or the Commonwealth that the person would not otherwise have committed; or

engage in corrupt conduct; and

any conduct involved in the operation will not—

endanger the health or safety of any person; or

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

involve the commission of a sexual offence against any person; or

result in unlawful loss of or serious damage to property (other than illicit goods); and

any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.

An authority to conduct a controlled operation may be granted—

in writing signed by the chief officer (a standard authority); or

if the chief officer is satisfied that the delay caused by granting a standard authority may affect the success of the operation—orally in person or by telephone, fax, email or any other means of communication (an urgent authority).

This part does not prevent an authority being granted in relation to a controlled operation that has been the subject of a previous authority.

An authority, whether standard or urgent, must—

state the name and rank or position of the person granting the authority; and

identify the principal law enforcement officer and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and

state whether the application is a standard application or an urgent application; and

identify each person who may engage in controlled conduct for the purposes of the controlled operation; and

state the participating jurisdictions in which the controlled conduct is, or is likely, to be engaged in; and

identify the nature of the criminal activity (including the suspected relevant offences) or corrupt conduct in relation to which the controlled conduct is to be engaged in; and

identify—

in relation to the law enforcement participants—the nature of the controlled conduct that the participants may engage in; and

in relation to the civilian participants—the particular controlled conduct (if any) that each participant may engage in; and

identify (to the extent known) any suspect; and

state the period (not longer than 3 months for a standard authority or 7 days for an urgent authority) of validity of the authority; and

state any conditions to which the conduct of the operation is subject; and

state the date and time when the authority is granted; and

identify (to the extent known)—

the nature and quantity of any illicit goods that will be involved in the operation; and

the route through which those goods will pass in the course of the operation.

A person is sufficiently identified for subsection (3) (d) if the person is identified—

by an assumed name under which the person is operating; or

by a code name or code number—

so long as the assumed name, code name or code number can be matched to the person’s identity.

The chief officer must ensure that written notes are kept of the details mentioned in subsection (3) for each urgent authority.

Unless sooner cancelled, an authority has effect for the period of validity stated in it in accordance with section 11 (3) (i).

The chief officer may amend an authority—

at any time on the chief officer’s own initiative; or

on application under subsection (3).

However, an amendment cannot be made that has the effect of—

extending the period of validity of an urgent authority; or

extending the period of validity of a standard authority for longer than 3 months after the date it was granted.

The principal law enforcement officer for an authorised operation, or any other law enforcement officer on behalf of the principal law enforcement officer, may apply to the chief officer for an amendment of an authority for any 1 or more of the following purposes:

to extend the period of validity of the authority (except as provided by subsection (2));

to authorise additional or alternative people to engage in controlled conduct for the purposes of the operation;

to authorise participants in the operation to engage in additional or alternative controlled conduct;

to identify additional suspects (to the extent known).

More than 1 application for amendment may be made in relation to the same authority.

An application for amendment of an authority may be made—

in writing signed by the applicant (a standard amendment application); or

if the applicant has reason to believe that the delay caused by making a standard amendment application may affect the success of the operation—orally in person or by telephone, fax, email or any other means of communication (an urgent amendment application).

The chief officer may require the applicant to give the information concerning the proposed amendment that is necessary for the chief officer’s proper consideration of the application.

As soon as practicable after making an urgent amendment application, the applicant must make a written record of the application and give a copy of it to the chief officer.

After considering an application for amendment of an authority, and any additional information given under subsection (6), the chief officer may—

amend the authority in accordance with the application, either unconditionally or subject to conditions; or

refuse the application.

Section 10 (2) applies to an application for amendment of an authority under this section in the same way as it applies to an application for an authority under section 10 (1).

Without limiting subsection (9), an amendment of an authority may not be granted unless the chief officer is satisfied on reasonable grounds that the amendment will not authorise a significant alteration of the nature of the authorised operation concerned.

An amendment of an authority may be granted only—

in writing signed by the chief officer (a standard amendment of authority); or

if the chief officer is satisfied that the delay caused by granting a standard amendment of authority may affect the success of the operation—orally in person or by telephone, fax, email or any other means of communication (an urgent amendment of authority).

The chief officer must—

ensure that written notes are kept of the following matters:

the date and time when the amendment of authority was granted;

the identity of the law enforcement officer to whom the amendment of authority was granted;

particulars of the amendments of the original authority that are approved under this section; and

as soon as practicable, prepare and give to the applicant a written amendment of authority that complies with section 14.

The applicant must take all reasonable steps to inform participants in a controlled operation about the grant of a standard amendment of authority no later than 48 hours after the day the standard amendment of authority is granted.