1Short title
This is the Criminal Investigation (Covert Powers) Act 2012.
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Bill homepageThis is the Criminal Investigation (Covert Powers) Act 2012.
This Act comes into operation as follows —
sections 1 and 2 — on the day on which this Act receives the Royal Assent;
the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.
In this Act, unless the contrary intention appears —
Australian Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002 (Commonwealth);
authorising officer, for a law enforcement agency, means —
in relation to the Police Force or the fisheries department — the Commissioner of Police;
in relation to the Australian Crime Commission — the Chief Executive Officer of the Australian Crime Commission;
chief officer, of a law enforcement agency, means —
in relation to the Police Force — the Commissioner of Police;
in relation to the Australian Crime Commission — the Chief Executive Officer of the Australian Crime Commission;
in relation to the fisheries department — the chief executive officer of the department;
conduct includes any act or omission;
criminal activity means conduct that constitutes the commission of an offence by one or more persons;
disciplinary proceeding means a proceeding of a disciplinary nature under a law of any jurisdiction;
fisheries department means the department principally assisting in the administration of the Fish Resources Management Act 1994;
fisheries officer has the meaning given in the Fish Resources Management Act 1994 section 4(1);
government agency means an authority or body (whether a body corporate or not) established or incorporated for a public purpose by a law of this jurisdiction, a participating jurisdiction or the Commonwealth, and includes a body corporate incorporated under a law of a jurisdiction or of the Commonwealth in which this jurisdiction, a participating jurisdiction or the Commonwealth has a controlling interest;
jurisdiction means a State, a Territory or the Commonwealth;
law enforcement agency means —
the Police Force; or
the Australian Crime Commission; or
the fisheries department;
law enforcement officer means —
a police officer; or
a person who is seconded to the Police Force, including (but not limited to) a police officer (however described), of another jurisdiction; or
a member of staff of the Australian Crime Commission; or
a fisheries officer holding a prescribed office in the fisheries department;
law enforcement operation means an operation that is conducted, or is intended to be conducted, by a law enforcement agency or other government agency for the purpose of —
obtaining evidence that may lead to the prosecution of a person for criminal activity; or
arresting any person suspected of being involved in criminal activity; or
frustrating criminal activity; or
carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in paragraphs (a) to (c);
Minister —
in relation to the Police Force, means the Minister administering the Police Act 1892;
in relation to the Australian Crime Commission, means the Minister administering the Australian Crime Commission (Western Australia) Act 2004;
in relation to the fisheries department, means the Minister administering the Fish Resources Management Act 1994;
Police Force means the Police Force of Western Australia provided for by the Police Act 1892;
police officer means a person appointed under the Police Act 1892 Part I to be a member of the Police Force;
prescribed means prescribed by regulations made under this Act;
this jurisdiction —
means Western Australia; and
for the purposes of any suspected criminal activity being investigated by the fisheries department, includes any waters not within the limits of Western Australia that are WA waters as defined in the Fish Resources Management Act 1994 section 5(b) to (d).
This Act binds the State and, so far as the legislative power of Parliament permits, the Crown in all its other capacities.
Nothing in this Act makes the State, or the Crown in any of its other capacities, liable to be prosecuted for an offence.
In this Part, unless the contrary intention appears —
authorised operation means a controlled operation for which an authority is in force;
authority means an authority in force under Division 2, and includes any variation of such an authority and any retrospective authority granted under section 25;
civilian participant, in an authorised operation, means a participant in the operation who is not a law enforcement officer;
controlled conduct means conduct for which a person would, but for section 27 or 34, be criminally responsible;
controlled operation means a law enforcement operation that involves, or may involve, controlled conduct;
corresponding authorised operation means any operation in the nature of a controlled operation that is authorised by or under the provisions of a corresponding law;
corresponding authority means an authority authorising a controlled operation (within the meaning of that term in a corresponding law) that is in force under the corresponding law;
corresponding law means a law of another jurisdiction that corresponds to this Part, and includes a prescribed law of another jurisdiction;
corresponding participant means a person who is authorised by a corresponding authority to participate in a corresponding authorised operation;
Corruption and Crime Commission means the Corruption and Crime Commission established under the Corruption, Crime and Misconduct Act 2003;
cross‑border controlled operation has the meaning given in section 6;
formal application has the meaning given in section 10(2)(a);
formal authority has the meaning given in section 15(1)(a);
formal variation application has the meaning given in section 19(3)(a);
formal variation of authority has the meaning given in section 21(1)(a);
illicit goods means goods the possession of which is a contravention of the law of this jurisdiction in the circumstances of the particular case;
law enforcement participant, in an authorised operation, means a participant in the operation who is a law enforcement officer;
local controlled operation has the meaning given in section 7;
participant, in an authorised operation, means a person who is authorised under this Part to engage in controlled conduct for the purposes of the operation;
participating jurisdiction means a jurisdiction in which a corresponding law is in force;
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 —
an offence against the law of this jurisdiction punishable by imprisonment for 3 years or more; or
an offence not covered by paragraph (a) that is prescribed for the purposes of this definition, being an offence under any of the following Acts —
the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
The Criminal Code;
the Firearms Act 2024;
the Fish Resources Management Act 1994;
the Misuse of Drugs Act 1981;
the Prostitution Act 2000;
the Weapons Act 1999;
sexual offence means —
an offence under The Criminal Code Part V Chapter XXXI; or
any other offence of a similar kind prescribed for the purposes of this definition;
suspect means a person reasonably suspected of having committed or being likely to have committed, or of committing or being likely to commit, a relevant offence;
urgent application has the meaning given in section 10(2)(b);
urgent authority has the meaning given in section 15(1)(b);
urgent variation application has the meaning given in section 19(3)(b);
urgent variation of authority has the meaning given in section 21(1)(b).
[Section 5 amended: No. 35 of 2014 s. 39; No. 23 of 2024 s. 456.]
When this Part refers to a cross‑border controlled operation it means a controlled operation that is conducted, or is intended to be conducted —
in this jurisdiction and in one or more participating jurisdictions; or
in one or more participating jurisdictions.
For the purposes of subsection (1), a controlled operation is to be taken to be conducted, or intended to be conducted, in this jurisdiction if a law enforcement officer of this jurisdiction is, or is to be, authorised under this Part to engage in controlled conduct for the purposes of the operation.
When this Part refers to a local controlled operation it means a controlled operation that is conducted, or is intended to be conducted, wholly in this jurisdiction.
Subject to subsection (2), this Part is not intended to limit a discretion that a court has —
to admit or exclude evidence in any proceedings; or
to stay criminal proceedings in the interests of justice.
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 controlled conduct within the meaning of that term in this Part or a corresponding law.
The following Acts do not apply to investigations, operations, activities or records under this Part —
the State Records Act 2000;
the Freedom of Information Act 1992, despite section 8(1) of that Act.
A law enforcement officer of a law enforcement agency may apply to the authorising officer for the agency for authority to conduct a controlled operation on behalf of the agency.
An application for an authority may be made —
in writing (a formal application); or
orally (an urgent application), if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the operation.
A formal application must be in a physical form, signed by the applicant.
However if it is impracticable in the circumstances for a physical document to be delivered to the authorising officer, a formal application may take the form of —
a fax; or
an email or other electronic document, in which case the document need not be signed.
An urgent application may be made in person, by telephone or any other electronic means.
Nothing in this Division prevents an application for an authority being made in respect of a controlled operation that has been the subject of a previous application.
In any application, whether formal or urgent, the applicant must —
provide sufficient information to enable the authorising officer to decide whether or not to grant the application; and
state whether or not the proposed operation, or any other controlled operation in respect of 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 or variation was granted.
The authorising officer may require the applicant to furnish such additional information concerning the proposed controlled operation as is necessary for the authorising officer’s proper consideration of the application.
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 authorising officer.
After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 10(8), the authorising officer —
may authorise the operation by granting the authority, either unconditionally or subject to conditions; or
may refuse the application.
An authority to conduct a controlled operation must not be granted unless the authorising officer is satisfied on reasonable grounds —
that a relevant offence has been, is being or is likely to be committed; and
that the authority is within the administrative responsibility of the law enforcement agency; and
that any unlawful conduct involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and
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
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 operation does not involve any participant in the operation inducing or encouraging another person to engage in criminal activity of a kind that the other person could not reasonably have been expected to engage in unless so induced or encouraged; and
that any conduct involved in the 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 unlawful loss of or serious damage to property (other than illicit goods).
A person must not be authorised to participate in a controlled operation unless the authorising officer is satisfied that the person has the appropriate skills or training to participate in the operation.
A civilian participant —
must not be authorised to participate in any aspect of a controlled operation unless the authorising 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 controlled conduct unless the authorising officer is satisfied that 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 conduct.
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