s 1Purposes

The main purposes of this Act are—

(a)

to provide for the authorisation, conduct and monitoring of controlled operations (including operations conducted in this and one or more other jurisdictions) for the purpose of obtaining evidence that may lead to the prosecution of persons for offences and that involve or may involve conduct for which participants in the operation would otherwise be criminally responsible; and

(b)

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

(c)

to provide for the indemnification of participants in authorised operations against civil liability in respect of the conduct of the operations; and

(d)

to amend the Fisheries Act 1995 and the Wildlife Act 1975 regarding controlled operations under those Acts; and

(e)

to repeal certain accomplice provisions in other Acts.

s 2Commencement

This Act comes into operation on a day or days to be proclaimed.

s 3Definitions

In this Act—

S. 3 def. of Australian Crime Commission repealed by No. 39/2008 s. 3(2).

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authorised operation means a controlled operation for which an authority is in force;

authority means an authority in force under Part 2, and includes any variation of such an authority;

S. 3 def. of chief officer substituted by No. 39/2008 s. 3(1)(a), amended by No. 82/2012 s. 86(1)(a).

chief officer means—

(a)

in relation to Victoria Police—the Chief Commissioner of Police;

(b)

in relation to the IBAC—the Commissioner;

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

S. 3 def. of Commiss-ioner inserted by No. 82/2012 s. 86(4).

Commissioner has the same meaning as it has in the Independent Broad-based Anti‑corruption Commission Act 2011;

conduct includes any act or omission;

controlled conduct—see section 7;

controlled operation—see section 6;

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 the corresponding law;

corresponding law means a law of another jurisdiction that is declared by the regulations to correspond to this Act;

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

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

cross-border controlled operation—see section 9;

S. 3 def. of Director inserted by No. 63/2004 s. 20(a) (as amended by No. 39/2008 s. 6(1)), amended by No. 34/2008 s. 143(Sch. 2 item 5.1(a)), repealed by No. 82/2012 s. 86(2).

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formal application—see section 12(2)(a);

formal authority—see section 18(1)(a);

formal variation application—see section 21(3)(a);

formal variation of authority—see section 23(1)(a);

function includes a power, authority or duty;

S. 3 def. of IBAC inserted by No. 82/2012 s. 86(4).

IBAC means the Independent Broad-based Anti‑corruption Commission established under the Independent Broad-based Anti‑corruption Commission Act 2011;

illicit goods means goods the possession of which is a contravention of the law of this jurisdiction;

S. 3 def. of Inspector inserted by No. 82/2012 s. 86(4), repealed by No. 31/2024 s. 113(Sch. 1 item 6.1(c)).

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S. 3 def. of Integrity Oversight Victoria inserted by No. 31/2024 s. 113(Sch. 1 item 6.1(a)).

Integrity Oversight Victoria has the same meaning as in the Integrity Oversight Victoria Act 2011;

jurisdiction means a State or Territory of the Commonwealth;

S. 3 def. of law enforcement agency substituted by No. 39/2008 s. 3(1)(b), amended by No. 82/2012 s. 86(1)(b).

law enforcement agency means the following agencies—

(a)

Victoria Police;

(b)

the IBAC;

S. 3 def. of law enforcement officer substituted by No. 39/2008 s. 3(1)(c), amended by Nos 82/2012 s. 86(1)(c), 37/2014 s. 10(Sch. item 38.1(b)).

law enforcement officer means—

(a)

in relation to Victoria Police—

(i)

a police officer; or

(ii)

a person who is seconded to Victoria Police including (but not limited to) a member of the police force or police service (however described) of another jurisdiction;

(b)

in relation to the IBAC—an IBAC Officer who holds a position, or is a member of a class, that is prescribed for the purposes of this definition;

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

local major controlled operation—see section 10;

local minor controlled operation—see section 11;

S. 3 def. of member repealed by No. 37/2014 s. 10(Sch. item 38.1(c)).

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S. 3 def. of Office of Police Integrity inserted by No. 63/2004 s. 20(a) (as amended by No. 39/2008 s. 6(1)), amended by No. 34/2008 s. 143(Sch. 2 item 5.1(b)), repealed by No. 82/2012 s. 86(2).

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

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

S. 3 def. of police officer inserted by No. 37/2014 s. 10(Sch. item 38.1(a)).

police officer has the same meaning as in the Victoria Police Act 2013;

S. 3 def. of prescribed member of staff of the Office of Police Integrity inserted by No. 63/2004 s. 20(a) (as amended by No. 39/2008 s. 6(1)), repealed by No. 82/2012 s. 86(2).

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S. 3 def. of IBAC Officer inserted by No. 82/2012 s. 86(4).

prescribed IBAC Officer means a sworn IBAC Officer within the meaning of section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011 who holds a position, or is a member of a class, that is prescribed by the regulations for the purposes of this definition;

principal law enforcement officer for an authorised operation means the law enforcement officer who is responsible for the conduct of the operation;

relevant offence means—

(a)

an offence against the law of this jurisdiction punishable by a maximum term of imprisonment of 3 years or more; or

(b)

an offence against the law of this jurisdiction that is prescribed by the regulations;

S. 3 def. of relevant Ombudsman repealed by No. 63/2004 s. 20(f).

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S. 3 def. of Special Investigations Monitor inserted by No. 63/2004 s. 20(a) (as amended by No. 39/2008 s. 6(1)), repealed by No. 82/2012 s. 86(2).

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suspect means a person reasonably suspected of having committed or being likely to have committed, or of committing or being likely to be committing, an offence;

this jurisdiction means Victoria;

urgent application—see section 12(2)(b);

urgent authority—see section 18(1)(b);

urgent variation application—see section 21(3)(b);

urgent variation of authority—see section 23(1)(b);

S. 3 def. of Victoria Police amended by No. 82/2012 s. 86(3), substituted by No. 37/2014 s. 10(Sch. item 38.1(d)), amended by No. 31/2024 s. 113(Sch. 1 item 6.1(b)).

Victoria Police has the same meaning as in the Victoria Police Act 2013.

S. 3 def. of Victorian Inspectorate inserted by No. 82/2012 s. 86(4), repealed by No. 31/2024 s. 113(Sch. 1 item 6.1(c)).

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s 4Relationship to other laws and matters

(1)

This Act is not intended to affect any other law of this jurisdiction that authorises, controls or monitors the conduct of operations wholly within this jurisdiction 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.

(2)

Subject to subsection (3), this Act is not intended to limit a discretion that a court has—

(a)

to admit or exclude evidence in any proceedings; or

(b)

to stay criminal proceedings in the interests of justice.

(3)

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—

(a)

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

(b)

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

s 5Binding the Crown

(1)

This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2)

Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence.

Part 2—Authorisation of controlled operations

Division 1—Types of controlled operations

s 6What is a controlled operation?

A controlled operation is an operation that—

(a)

is conducted, or intended to be conducted, for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence; and

(b)

involves, or may involve, controlled conduct.

s 7What is controlled conduct?

In this Act, controlled conduct means conduct for which a person would, but for section 28 or 35, be criminally responsible.

s 8What types of controlled operations may be authorised under this Act?

The following types of controlled operations may be authorised under this Act—

(a)

a cross-border controlled operation;

(b)

a local major controlled operation;

(c)

a local minor controlled operation.

s 9What is a cross-border controlled operation?

(1)

A cross-border controlled operation is a controlled operation—

(a)

in respect of an offence that is a relevant offence; and

(b)

that is, will be, or is likely to be, conducted in this jurisdiction and in one or more participating jurisdictions.

(2)

For the purposes of this Act, a cross-border controlled operation in respect of a relevant offence 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 investigating a relevant offence of this jurisdiction (eg: a Victorian officer is investigating a conspiracy to import drugs into Victoria from NSW, and the operation is to be conducted wholly in NSW).

10 What is a local major controlled operation?

A local major controlled operation is a controlled operation—

(a)

in respect of an offence that is a relevant offence; and

(b)

that is or will be conducted wholly in this jurisdiction.

11 What is a local minor controlled operation?

A local minor controlled operation is a controlled operation—

(a)

in respect of an offence against the law of this jurisdiction punishable by a maximum term of imprisonment of less than 3 years, or by a fine but not imprisonment; and

(b)

that is or will be conducted wholly in this jurisdiction.

Division 2—Procedure for authorising controlled operations

s 12Applications for authorities to conduct controlled operations

(1)

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

(2)

An application for authority may be made—

(a)

by means of a written document signed by the applicant (a formal application); or

(b)

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

(3)

Nothing in this Part prevents an application for authority being made in respect of a controlled operation that has been the subject of a previous application, but in that case the subsequent application must be a formal application.

(4)

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

(a)

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

(b)

state whether the proposed operation is a cross-border controlled operation, a local major controlled operation or a local minor controlled operation; and

(c)

state whether or not the proposed operation, or any other controlled operation with respect to the same criminal activity, 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 and, if so, the type of controlled operation authorised.

(5)

The chief officer may require the applicant to furnish any additional information concerning the proposed controlled operation that is necessary for the chief officer's proper consideration of the application.

(6)

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

Note to s. 12 amended by No. 63/2004 s. 21.

Note

In some circumstances, the chief officer may delegate functions under this section—see Division 1 of Part 5.

s 13Determination of applications

After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 12(5), the chief officer—

(a)

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

(b)

may refuse the application.

Note to s. 13 amended by No. 63/2004 s. 21.

Note

In some circumstances, the chief officer may delegate functions under this section—see Division 1 of Part 5.

s 14Matters to be taken into account—all controlled operations

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

(a)

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

(b)

that the operation will be conducted in a way that will minimise the risk of more illicit goods being under the control of persons (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

(c)

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

(d)

that the operation will not be conducted in such 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 intended to commit; and

(e)

that any conduct involved in the operation will not—

(i)

seriously endanger the health or safety of any person; or

(ii)

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

(iii)

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

(iv)

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

(f)

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

Note

Sections 15, 16 and 17 set out further matters to be taken into account for the different types of controlled operation.

Crimes (Controlled Operations) Act 2004

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