Crimes Act 1914

After considering an application for a variation of a formal authority, and any additional information provided under subsection 15GU(6), the nominated Tribunal member concerned:

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

may refuse the application.

The nominated Tribunal member must not grant the variation unless the nominated Tribunal member is satisfied on reasonable grounds:

that either:

a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or

an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and

that the nature and extent of the suspected criminal activity are such as to justify the variation; and

that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and

so far as the conduct involved in the controlled operation is not conducted online—that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and

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

that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and

that any conduct involved in the controlled operation will not:

seriously endanger the health or safety of any person; or

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

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

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

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

Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG).

The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and the Immigration and Border Protection Department (see section 15GC).

To avoid doubt:

paragraph (2)(g) only requires the nominated Tribunal member to be satisfied as to the direct and reasonably foreseeable consequences of the unlawful conduct of participants in the controlled operation; and

nothing in subparagraph (2)(g)(iii) is intended to prevent the nominated Tribunal member from varying a formal authority to conduct a controlled operation that will involve a participant:

dealing with material depicting, material describing or material otherwise involving a sexual offence against any person; or

facilitating a person to deal with such material.

For the purposes of paragraph (2A)(a), a consequence is a direct consequence of unlawful conduct if the unlawful conduct causes or produces (and is not merely a minor influence on) the consequence without there being any intervening conduct or events.

A variation is not a legislative instrument.