Law Enforcement (Controlled Operations) Act 1997

This Act is the Law Enforcement (Controlled Operations) Act 1997.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

authorised operation means a controlled operation for which an authority is in force and, in Parts 3 and 5, includes any operation in the nature of a controlled operation that is authorised by or under the provisions of a corresponding law.

authority means an authority in force under Part 2, and includes any variation of such an authority and any retrospective authority granted under section 14.

chief executive officer means the person for the time being holding office or acting as—

in relation to the NSW Police Force, the Commissioner of Police, and

in relation to the Independent Commission Against Corruption, the Chief Commissioner of that Commission, and

in relation to the New South Wales Crime Commission, the Commissioner for that Commission, and

in relation to the Law Enforcement Conduct Commission, the Chief Commissioner of that Commission, and

in relation to a law enforcement agency prescribed by the regulations, the chief executive officer (however described) of that agency,

and, in relation to an authorised operation, means the chief executive officer of the law enforcement agency on whose behalf the operation has been, is being or is proposed to be conducted.

civilian participant in an authorised operation means a participant in the operation who is not a law enforcement officer.

code of conduct means a code of conduct referred to in section 20.

conduct, when used as a noun, includes any act or omission.

controlled activity means an activity that, but for section 16, would be unlawful.

controlled conduct means conduct in respect of which, but for section 20K or 20L, a person would be criminally liable.

controlled operation means an operation conducted for the purpose of—

obtaining evidence of criminal activity or corrupt conduct, or

arresting any person involved in criminal activity or corrupt conduct, or

frustrating criminal activity or corrupt conduct, or

carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in paragraph (a), (b) or (c),

being an operation that involves, or may involve, a controlled activity.

corresponding authorised operation means any operation in the nature of a cross-border controlled operation that is authorised by or under the provisions of a corresponding law.

corresponding authority means an authority authorising a cross-border controlled operation (within the meaning of a corresponding law) that is in force under a corresponding law.

corresponding law means a law of the Commonwealth, or of another State or Territory, referred to in Schedule 1.

corresponding participant means a person who is authorised by a corresponding authority to participate in a corresponding authorised operation.

corrupt conduct has the same meaning as it has in the Independent Commission Against Corruption Act 1988.

criminal activity means any activity that involves the commission of an offence by one or more persons.

cross-border controlled operation means a controlled operation that is, will be, or is likely to be, conducted in this jurisdiction and in one or more participating jurisdictions.

exercise a function includes perform a duty.

function includes a power, authority or duty.

Inspector means the Inspector of the Law Enforcement Conduct Commission.

law enforcement agency means each of the following—

the NSW Police Force,

the Independent Commission Against Corruption,

the New South Wales Crime Commission,

the Law Enforcement Conduct Commission,

such of the following agencies as may be prescribed by the regulations as law enforcement agencies for the purposes of this Act—

the Australian Federal Police,

the Australian Criminal Intelligence Commission,

the Department of Home Affairs.

law enforcement officer means—

an officer or employee of a law enforcement agency or a person who is seconded to such an agency, including (but not limited to) a police officer, or

a member of a police force or police service (however described) of another State, a Territory or another country.

law enforcement participant in an authorised operation means a participant in the operation who is a law enforcement officer.

participant in an authorised operation means a person who is authorised under this Act to engage in controlled activities for the purposes of the operation.

participating jurisdiction means a jurisdiction in which a corresponding law is in force.

Presiding Officer, in relation to a House of Parliament, means the President of the Legislative Council or the Speaker of the Legislative Assembly.

principal law enforcement officer for an authorised operation means the law enforcement officer who is identified by the authority for the operation as the principal law enforcement officer.

secondary law enforcement officer for an authorised operation means the law enforcement officer who is identified by the authority for the operation as the secondary law enforcement officer.

sexual offence means—

an offence under Division 10 or 10A of Part 3 of the Crimes Act 1900, or

any other offence of a similar kind prescribed by the regulations for the purposes of this definition.

this jurisdiction means New South Wales.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

For the purposes of this Act, a cross-border controlled operation is taken to be conducted in this jurisdiction (whether or not it is also conducted in another jurisdiction) if a participant in the operation is a law enforcement officer of this jurisdiction.

Note.

Subsection (2) is intended to cover the situation where an officer of this jurisdiction is conducting an operation in another jurisdiction for the purposes of obtaining evidence of an offence in this jurisdiction (for example, a NSW officer is investigating a conspiracy to import drugs into NSW from Victoria, and the operation is to be conducted wholly in Victoria).

Notes included in this Act do not form part of this Act.

This Act does not affect, and is taken never to have affected, the existence or exercise of any discretions (including any administrative or judicial discretions) that, apart from this Act, may lawfully be exercised in relation to the commencement, conduct or conclusion of legal proceedings.

Without limiting subsection (1), the discretions referred to in that subsection include the following—

any discretion as to whether or not legal proceedings should be commenced or terminated,

any discretion as to whether or not evidence should be admitted in legal proceedings,

any discretion as to how a person found guilty in respect of a charge should be dealt with.

This section applies to all activities, whether or not they are engaged in for the purposes of, or in the course of, an authorised operation.

Despite the other provisions of this section, in determining whether evidence should be admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is 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 was a controlled activity within the meaning of this Act or controlled conduct within the meaning of a corresponding law.

In this section, legal proceedings includes disciplinary proceedings.

The regulations may amend Schedule 1 so as to insert, amend or omit the name of a law of the Commonwealth or a law of another State or Territory.

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

An application for an authority may be made—

by means of a written document, signed by the applicant, or by means of a facsimile transmission of a document so signed (a formal application), or

by such other means as are available, including (but not limited to) orally in person, by telephone or by 2-way radio (an urgent application).

In any application, whether formal or urgent, the applicant must provide the following particulars—

a plan of the proposed operation,

the nature of the criminal activity or corrupt conduct in respect of which the proposed operation is to be conducted,

the nature of the controlled activity in respect of which an authority is sought,

a statement of whether or not the proposed operation, or any other controlled operation with respect to the same criminal activity or corrupt conduct, has been the subject of an earlier application for an authority or variation of an authority and, if so, whether or not the authority was given or variation granted,

the names and ranks of the law enforcement officers nominated to be the principal law enforcement officer and the secondary law enforcement officer for the proposed operation,

details of the proposed use of a listening device or optical surveillance device (within the meaning of the Surveillance Devices Act 2007) if the use will be carried out other than in accordance with a surveillance device warrant under that Act.

The regulations may make provision for or with respect to the following matters—

the circumstances in which an urgent application may be made,

the procedure for making an urgent application,

the extent to which a chief executive officer is to be satisfied as to the validity of the circumstances in which an urgent application is made,

the keeping of records in relation to an urgent application,

the form in which a formal application may be made.

The chief executive officer may require the applicant to furnish such additional information concerning the proposed controlled operation as is necessary for the chief executive officer’s proper consideration of the application.

After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 5(3), the chief executive officer—

may authorise a law enforcement officer for the law enforcement agency concerned to conduct the operation, either unconditionally or subject to conditions, or

may refuse the application.

An authority to conduct a controlled operation on behalf of a law enforcement agency may not be granted unless a code of conduct is prescribed by the regulations in relation to that agency.

An authority to conduct a controlled operation may not be granted unless the chief executive officer is satisfied as to the following matters—

that there are reasonable grounds to suspect that criminal activity or corrupt conduct has been, is being or is about to be conducted in relation to matters within the administrative responsibility of the agency,

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

that the nature and extent of the proposed controlled activities are appropriate to the suspected criminal activity or corrupt conduct,

that the proposed controlled activities will be capable of being accounted for in sufficient detail to enable the reporting requirements of this Act to be fully complied with.

In considering the matters referred to in subsection (3), the chief executive officer must have regard to the following—

the reliability of any information as to the nature and extent of the suspected criminal activity or corrupt conduct,

the likelihood of success of the proposed controlled operation compared with the likelihood of success of any other law enforcement operation that it would be reasonably practicable to conduct for the same purposes,

the duration of the proposed controlled operation.

(Repealed)

An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation—

inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged, or

engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property, or

engaging in conduct that involves the commission of a sexual offence against any person.

A person must not be authorised to participate in a controlled operation unless the chief executive officer is satisfied that the person has the appropriate skills to participate in the operation.

A civilian participant—

must not be authorised to participate in any aspect of a controlled operation unless the chief executive officer is satisfied that it is wholly impracticable for a law enforcement participant to participate in that aspect of the operation, and

must not be authorised to engage in a controlled activity unless it is wholly impracticable for the civilian participant to participate in the aspect of the controlled operation referred to in paragraph (a) without engaging in that activity.

An authority to conduct a controlled operation may be granted—

by means of a written document, signed by the chief executive officer, or by means of a facsimile transmission of a document so signed (a formal authority), or

by such other means as are available, including (but not limited to) orally in person, by telephone or by 2-way radio (an urgent authority).

An authority, whether formal or urgent—

must identify the operation by reference to the plan referred to in section 5(2A)(a), and

must identify the principal law enforcement officer who is the person who is to conduct, and to have responsibility for, the operation, and

must identify the secondary law enforcement officer who is the person who is to conduct, and to have responsibility for, the operation whenever the principal law enforcement officer is unavailable to do so, and

must identify each person who may engage in controlled activities for the purposes of the operation, and

must state whether or not any such person may operate under an assumed name, and

must identify—

with respect to the law enforcement participants, the nature of the controlled activities that those participants may engage in, and

with respect to the civilian participants, the particular controlled activities (if any) that each such participant may engage in, and

in respect of an urgent authority, must specify the period (not exceeding 72 hours) for which the authority is to remain in force, and

in respect of a formal authority, must specify the period (not exceeding 6 months) for which the authority is to remain in force, and

must specify any conditions to which the conduct of the operation is subject under section 6(1)(a).

A person is sufficiently identified for the purposes of subsection (2)(b), (b1) or (c) 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 by reference to documentation kept by the chief executive officer.

Unless it sooner ceases to have effect, an urgent authority ceases to have effect 72 hours after it is granted.

A chief executive officer who grants an urgent authority must ensure that written notes are kept of the following matters—

the date and time when the authority was granted,

the identity of the law enforcement officer to whom the authority was granted,

the particulars referred to in subsection (2).

The regulations may make provision for or with respect to the following matters—

the procedure for granting an urgent authority,

the keeping of records in relation to an urgent authority,

the form in which a formal authority may be granted.

Unless it is sooner cancelled, an authority has effect for the period specified in the authority in accordance with section 8(2)(f) or (g).

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 executive officer for a variation of an authority for any one or more of the following purposes—

to extend the period for which the authority has effect,

to provide for an alternative principal law enforcement officer for the operation,

to provide for an alternative secondary law enforcement officer for the operation,

to authorise additional or alternative persons to engage in controlled activities for the purposes of the operation,

to authorise participants in the operation to engage in additional or alternative controlled activities.

More than one application for a variation may be made in respect of the same authority, but no single variation may extend an authority for more than 6 months at a time.

An application for a variation of an authority may be made—

by means of a written document, signed by the applicant, or by means of a facsimile transmission of a document so signed (a formal application), or

by such other means as are available, including (but not limited to) orally in person, by telephone or by 2-way radio (an urgent application).

The regulations may make provision for or with respect to the following matters—

the circumstances in which an urgent application may be made,

the procedure for making an urgent application,

the extent to which a chief executive officer is to be satisfied as to the validity of the circumstances in which an urgent application is made,

the keeping of records in relation to an urgent application,

the form in which a formal application may be made.

The chief executive officer may require the applicant to furnish such information concerning the proposed variation as is necessary for the chief executive officer’s proper consideration of the application.

After considering an application for a variation of an authority, and any additional information furnished under subsection (2), the chief executive officer—

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

may refuse the application.

An authority may not be varied unless the chief executive officer is satisfied that—

the success of the operation, or

the protection of the health or safety of a participant in the operation or any other person, or

the protection of property from loss or damage,

can reasonably be expected to require the variation sought by the application.

Section 7 applies to an application under this section in the same way as it applies to an application under section 5.

A variation of authority may be granted—

by means of a written document, signed by the chief executive officer, or by means of a facsimile transmission of a document so signed (a formal variation of authority), or

by such other means as are available, including (but not limited to) orally in person, by telephone or by 2-way radio (an urgent variation of authority).

Unless it sooner ceases to have effect, an urgent variation of authority ceases to have effect 72 hours after it is granted.

A chief executive officer who grants an urgent variation of authority is to ensure that written notes are kept of the following matters—

the date and time when the variation of authority was granted,

the identity of the law enforcement officer to whom the variation of authority was granted,

the terms of the variation.

The regulations may make provision for or with respect to the following matters—

the procedure for granting an urgent variation of authority,

the keeping of records in relation to an urgent variation of authority,

the form in which a formal variation of authority may be granted.

If an authority to conduct a controlled operation is varied, it is a sufficient defence to criminal or disciplinary proceedings arising from conduct that is engaged in by the defendant in reliance on the authority as in force prior to that variation if the defendant satisfies the court or tribunal before which the proceedings are being heard—

that the defendant engaged in the conduct in good faith for the purposes of, and in the course of, the controlled operation, and

that, had the authority not been varied, the conduct would have been lawful by operation of section 16, and

that the defendant was unaware, and could not reasonably be expected to have been aware, that the authority had been varied.