Criminal Investigation (Covert Operations) Act 2009

This

Act may be cited as the Criminal

Investigation (Covert Operations) Act 2009.

In this Act, unless the contrary intention appears—

acquire an assumed identity, means acquire evidence of the identity, and includes taking steps towards acquiring evidence of the identity;

agency means—

an issuing agency; or

a law enforcement agency, as the case requires;

approval means an approval under Part

2;

approved undercover operations means—

undercover operations approved under Part

2; or

undercover operations approved—

under the repealed Act; or

by a law enforcement authority before the commencement of the repealed

Act that are of a type that could reasonably have been approved under the repealed Act if the repealed Act had been in force when the operations commenced;

assumed identity—see

Part 3;

assumed name—

of a local operative—has the meaning given in section 33(1)(d)(i);

of an interstate operative—means the name (if any) stated in the interstate witness identity protection certificate as the interstate operative's assumed name;

authorised civilian means a person (other than a law enforcement officer) who is authorised under an authority to acquire or use an assumed identity;

authorised officer means a law enforcement officer who is authorised under an authority to acquire or use an assumed identity;

authorised participant in approved undercover operations means—

a person authorised under the terms of the approval to take part in the operations; or

in the case of operations that began before the commencement of Part

2 but after the commencement of the repealed Act—a person authorised under the terms of an approval under the repealed Act to take part in the operations; or

in the case of operations that began before the commencement of the repealed Act—a person authorised by a law enforcement authority to take part in the operations;

authorised person means—

an authorised civilian; or

an authorised officer;

authority means an authority under Part

3;

chief officer—

of a law enforcement agency—

in relation to SA Police—means the Commissioner of Police;

in relation to the Australian Crime Commission—means the

Chief Executive Officer of the Australian Crime

Commission;

in relation to the Independent Commission Against Corruption—means the Independent Commissioner Against Corruption;

of an issuing agency—means the chief executive officer (however described) of the agency;

conduct includes any act or omission;

corresponding approval means an approval under a corresponding law approving undercover operations;

corresponding authority means—

an authority under a corresponding law to acquire or use an assumed identity in this State; or

an authority under a corresponding law to request the production of evidence of an assumed identity;

corresponding law means a law of another jurisdiction declared by the regulations to correspond to this Act, or to a Part (or Parts) of this Act;

court includes a tribunal or body or person invested by law with judicial or quasi‑judicial powers, or with authority to make an inquiry or to receive evidence;

court name for an operative (whether a local or an interstate operative) in relation to proceedings, means a name, other than the operative's real name, or code used to identify the operative in the proceedings;

criminal activity means conduct that involves the commission of an offence by 1 or more persons;

doing a thing includes failing to do the thing;

evidence of identity, means a document or other thing that evidences or indicates, or can be used to evidence or indicate, a person's identity or an aspect of a person's identity;

false representation does not include a representation made under an authority under this

Act;

government issuing agency, in relation to an authority, means any of the following named in the authority that issues evidence of identity:

a person or body (whether incorporated or not) that performs any function of the government of this State;

a person or body (whether incorporated or not) prescribed by the regulations for the purposes of this definition;

interstate operative means a person in respect of whom an interstate witness identity protection certificate is in force;

interstate witness identity protection certificate means a certificate given under a provision of a corresponding law that corresponds to section 31;

investigation means an investigation in relation to criminal activity, including an investigation extending beyond this State;

issuing agency means—

a government issuing agency; or

a non-government issuing agency;

jurisdiction means the Commonwealth or a State or Territory of the Commonwealth;

law enforcement agency means—

SA

Police; or

the

Australian Crime Commission; or

the

Independent Commission Against Corruption;

law enforcement officer means—

in relation to SA Police—a police officer or a police officer (however described) of another jurisdiction seconded to SA Police;

or

in relation to the Australian Crime Commission—a member of staff of the Australian Crime Commission or a person seconded to the

Australian Crime Commission; or

in relation to the Independent Commission Against Corruption—an investigator under the Independent

Commission Against Corruption Act 2012;

local operative means a person who is or was—

an authorised participant under Part

2; or

an authorised person under Part

3;

non-government issuing agency, in relation to an authority, means a person, body or entity (other than a government issuing agency) named in the authority that issues evidence of identity;

officer of an agency includes a person employed or engaged in the agency;

operative means—

an interstate operative; or

a local operative, as the case requires;

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

party to proceedings means—

in relation to criminal proceedings—the prosecutor and each accused person;

in relation to civil proceedings—each person who is a party to the proceedings;

in relation to any other proceedings—each person who may appear or give evidence in the proceedings;

presiding officer, in relation to proceedings, means the person constituting the court, or presiding over the court, in the proceedings;

proceedings means any criminal, civil or other proceeding or inquiry, reference or examination in which, by law or consent of parties, evidence is or may be given, and includes an arbitration;

professional misconduct means misconduct or a breach of discipline—

under the Police

Act 1998;

or

under a law of another jurisdiction that corresponds to the Police

Act 1998;

or

under a law of the Commonwealth that governs the conduct of members of staff of the Australian Crime Commission, but does not mean misconduct or a breach of discipline—

that constitutes minor misconduct, or is the subject of an informal inquiry only, under the Police

Act 1998;

or

that constitutes minor misconduct (however referred to), or is the subject of an informal inquiry only, under any of the laws referred to in paragraph (b) or (c);

repealed

Act means the Criminal

Law (Undercover Operations) Act 1995 repealed under Schedule

1;

SA

Police means South Australia Police;

serious criminal behaviour means behaviour involving the commission of—

an indictable offence; or

an offence against the Controlled

Substances Act 1984;

or

an offence against section 52, 53, 72 or 74 of the Fisheries

Management Act 2007;

or

an offence against section 29 of the Liquor

Licensing Act 1997;

or

an offence against section 63 or 75 of the Lottery and Gaming Act 1936;

or

an offence against section 47(1), (2) or (4), 48(1), 48A(1), 51(1) or

60(1) of the National

Parks and Wildlife Act 1972;

or

an offence against section 21OB or 21OC of the Summary

Offences Act 1953;

supervisor of an authorised civilian means the law enforcement officer who supervises, or is to supervise, the acquisition or use of an assumed identity by the authorised civilian;

undercover operations means operations (which may include conduct that is apart from this

Act illegal) of which the intended purpose is to provide persons who have engaged, are engaging or are about to engage in serious criminal behaviour an opportunity to—

manifest that behaviour; or

provide other evidence of that behaviour;

use an assumed identity, includes representing (whether expressly or impliedly, or by saying or doing something) the identity to be real when it is not;

witness identity protection certificate means a certificate given under section 31 in respect of a local operative in relation to proceedings.

For the purposes of this Act, a person is reckless about whether or not an act has been done if—

the person is aware of a substantial risk that the act has been done;

and

having regard to the circumstances known to the person, it is unjustifiable to take the risk.

A senior police officer may approve undercover operations for the purpose of gathering evidence of serious criminal behaviour.

An investigator under the Independent

Commission Against Corruption Act 2012 may apply to the Independent Commissioner Against Corruption to approve undercover operations for the purpose of an investigation into corruption in public administration under that Act where the suspected corruption involves, or may involve, serious criminal behaviour.

An approval may not be given unless the senior police officer or the

Independent Commissioner Against Corruption (as the case may be)—

suspects, on reasonable grounds, that persons (whose identity may—but need not—be known to the officer) have engaged, are engaging or are about to engage in serious criminal behaviour of the kind to which the proposed undercover operations relate; and

is satisfied on reasonable grounds that the ambit of the proposed undercover operations is not more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behaviour; and

is satisfied on reasonable grounds that the means are proportionate to the end; that is, that the proposed undercover operations are justified by the social harm of the serious criminal behaviour against which they are directed; and

is satisfied on reasonable grounds that the undercover operations are properly designed to provide persons who have engaged, or are engaging or about to engage, in serious criminal behaviour an opportunity—

to manifest that behaviour; or

to provide other evidence of that behaviour, without undue risk that persons without a predisposition to serious criminal behaviour will be encouraged into serious criminal behaviour that they would otherwise have avoided.

Before giving approval, the senior police officer or the Independent

Commissioner Against Corruption (as the case may be) must consider whether approval for similar operations has previously been sought, and, if sought and refused, the reasons for that refusal.

The approval must—

be in writing; and

be signed by the person giving the approval; and

specify—

the date and time of the signing, and the time from which the approval takes effect (which may be contemporaneous with or later than the time of signing but cannot be earlier); and

the persons who are authorised to participate in the operations; and

the nature of the conduct in which the participants are authorised to engage; and

a period (not exceeding 3 months) for which the approval is given.

A senior police officer or the Independent Commissioner Against

Corruption (as the case may be) may renew, from time to time, an approval for 1 or more further periods.

A senior police officer or the Independent Commissioner Against

Corruption (as the case may be) must, within 14 days after giving or renewing an approval, cause a copy of the instrument of approval or renewal to be given to the Attorney‑General.

In this section—

senior police officer means a police officer of or above the rank of Superintendent.

Despite any other law, an authorised participant in approved undercover operations incurs no criminal liability by taking part in undercover operations in accordance with the terms of the approval.

This section operates both prospectively and retrospectively.

A law enforcement officer of a law enforcement agency may apply to the chief officer of the law enforcement agency for an authority for the law enforcement officer, or another person, to do either or both of the following:

acquire an assumed identity;

use an assumed identity.

A separate application must be made in respect of each assumed identity to be acquired or used.

An application—

must be in writing in the form approved by the chief officer; and

must contain the following information:

the name of the applicant;

the name of the person to be authorised to acquire or use an assumed identity (if not the applicant);

if the person to be authorised is not a law enforcement officer—the name and rank or position of the person proposed to be appointed as supervisor and an explanation of why it is necessary for a person who is not a law enforcement officer to acquire or use the assumed identity;

details of the proposed assumed identity;

reasons for the need to acquire or use an assumed identity;

to the extent known—details of the investigation or intelligence gathering exercise in which the assumed identity will be used;

details of the issuing agencies (if any) and the types of evidence to be issued by them;

details of any application to be made for an order under section 12 in respect of the assumed identity.

An applicant must provide the chief officer with any other information required by the chief officer for the purposes of determining the application.

The chief officer of a law enforcement agency may, on application under section 6 for an authority, grant the authority subject to such conditions as the chief officer thinks fit.

The chief officer may not grant any such authority unless satisfied on reasonable grounds—

that the assumed identity is necessary for the purposes of an investigation or intelligence gathering in relation to criminal activity; and

that the risk of abuse of the assumed identity by the authorised person is minimal; and

if the application is for authorisation of an assumed identity for a person who is not a law enforcement officer—that it would be impossible or impracticable in the circumstances to authorise the acquisition or use (or both) of the assumed identity by a law enforcement officer for the purpose sought.

If an authority is granted in respect of an authorised civilian, the chief officer must appoint a law enforcement officer of the agency to supervise the acquisition or use (or both) of the assumed identity by the authorised civilian.

A law enforcement officer appointed as supervisor under subsection (3) must be—

in the case of SA Police—of or above the rank of Sergeant;

in the case of the Australian Crime Commission—of or above the rank of Senior Investigator.

An authority may also authorise any 1 or more of the following:

an application for an order for an entry in a register of births, deaths or marriages under section 12 or a corresponding law;

a request under section 14 or 23;

the use of an assumed identity in a participating jurisdiction.

A separate authority is required for each assumed identity.

An authority must—

be in writing in the form approved by the chief officer of the law enforcement agency granting the authority; and

be signed by the person granting the authority; and

specify—

the name of the person granting the authority;

the date on which the authority comes into effect;

details of the assumed identity authorised;

details of evidence of the assumed identity that may be acquired under the authority;

the conditions (if any) to which the authority is subject;

the reason why the authority is granted;

if the authority relates to an authorised officer—the name of the authorised officer;

if the authority relates to an authorised civilian—

the name of the authorised civilian; and

the name of his or her supervisor under the authority; and

the period (which may not exceed 3 months) for which the authority will remain in force;

each issuing agency to which a request may be made under section 14 or 23;

whether it authorises an application for an order for an entry in a register of births, deaths or marriages under section 12 or a corresponding law;

each participating jurisdiction in which the assumed identity may be used.

An authority for an authorised officer remains in force until cancelled.

An authority for an authorised civilian remains in force until the end of the period specified in the authority (which may not exceed

3 months), unless the authority is cancelled sooner.

The chief officer of a law enforcement agency who grants an authority—

may vary or cancel the authority at any time; and

must cancel the authority if satisfied (on a review or otherwise) that any of the grounds for the granting of the authority no longer exist.

The chief officer must give written notice of the variation or cancellation to—

the authorised person to whom it relates; and

if the authorised person is an authorised civilian—the authorised person's supervisor.

The notice must specify the reason why the authority is varied or cancelled.

The variation or cancellation takes effect—

on the day the written notice is given to the authorised person; or

if a later date is specified in the notice—on that day.

The chief officer of a law enforcement agency must, at least once in every 12 month period, review each authority granted under this

Part.

The purpose of a review is to determine whether the grounds for the granting of the authority still exist.

If on a review the chief officer is satisfied—

that the grounds for the granting of the authority still exist—the chief officer must record his or her opinion and the reasons for it in writing;

that any of the grounds for the granting of the authority no longer exist—the chief officer must cancel the authority under section 10.

The

Supreme Court may order the Registrar of Births, Deaths and

Marriages to make an entry in the Register under the Births,

Deaths and Marriages Registration Act 1996 in relation to the acquisition of an assumed identity under an authority or corresponding authority.

The

Court may only make an order under this section—

on application by—

the chief officer of a law enforcement agency; or

the chief officer of a law enforcement agency under a corresponding law;

and

if satisfied that the order is justified having regard to the nature of the activities undertaken or to be undertaken by the officer or person under the authority or corresponding authority.

An application for an order under this section must be heard in closed court.

The

Registrar of Births, Deaths and Marriages must give effect to an order under this section—

within the period specified in the order; or

if no period is specified in the order—within 28 days after the day on which the order is made.

This section applies if—

the chief officer of a law enforcement agency cancels an authority for an assumed identity; and

there is an entry in relation to that identity—

in the Register under the Births,

Deaths and Marriages Registration Act 1996 as a consequence of an order under section 12;

or

in a register of births, deaths or marriages in a participating jurisdiction as a consequence of an order under a corresponding law of the jurisdiction.

If subsection (1)(b)(i) applies—

the chief officer must, within 28 days after the day on which the authority is cancelled, apply to the Supreme Court for an order that the Registrar of Births, Deaths and Marriages cancel the entry; and

the

Registrar of Births, Deaths and Marriages must give effect to the order within 28 days after the day on which the order is made.

An application under subsection (2)(a) must be heard in closed court.

If subsection (1)(b)(ii) applies, the chief officer must apply for an order under the corresponding law to cancel the entry within 28 days after the day on which the authority is cancelled.