New South Wales Consolidated Acts

LAW ENFORCEMENT (CONTROLLED OPERATIONS) ACT 1997 - SECT 10

10 Variation of authority

(1) 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:

(a) to extend the period for which the authority has effect,

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

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

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

(1A) 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.

(1B) An application for a variation of an authority may be made:

(a) 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

(b) 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").

(1C) The regulations may make provision for or with respect to the following matters:

(a) the circumstances in which an urgent application may be made,

(b) the procedure for making an urgent application,

(c) 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,

(d) the keeping of records in relation to an urgent application,

(e) the form in which a formal application may be made.

(2) 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.

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

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

(b) may refuse the application.

(4) An authority may not be varied unless the chief executive officer is satisfied that:

(a) the success of the operation, or

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

(c) the protection of property from loss or damage,

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

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

(6) A variation of authority may be granted:

(a) 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

(b) 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").

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

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

(a) the date and time when the variation of authority was granted,

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

(c) the terms of the variation.

(9) The regulations may make provision for or with respect to the following matters:

(a) the procedure for granting an urgent variation of authority,

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

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

(10) 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:

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

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

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