CROSS-BORDER LAW ENFORCEMENT LEGISLATION AMENDMENT BILL 2005

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This is a Bill, not an Act. For current law, see the Acts databases.

CROSS-BORDER LAW ENFORCEMENT LEGISLATION AMENDMENT BILL 2005

Queensland Cross-Border Law Enforcement Legislation Amendment Bill 2005

Queensland Cross-Border Law Enforcement Legislation Amendment Bill 2005 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Part 2 Amendment of Police Powers and Responsibilities Act 2000 Division 1 Preliminary 3 Act amended in pt 2 and sch 1. . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Division 2 Amendments 4 Insertion of new s 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4A Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . 17 5 Amendment of s 8 (Act does not affect court's common law discretion to exclude evidence) . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6 Omission of ch 4, pt 2, hdg and divs 15 . . . . . . . . . . . . . . . . . . . 17 7 Replacement of ch 4, pt 2, div 7, hdg. . . . . . . . . . . . . . . . . . . . . . 17 8 Amendment of s 157 (Public interest monitor) . . . . . . . . . . . . . . . 18 9 Amendment of s 159 (Monitor's functions) . . . . . . . . . . . . . . . . . . 18 10 Amendment of s 160 (Monitor's annual report) . . . . . . . . . . . . . . 19 11 Renumbering and relocation of ch 4, pt 2, div 7. . . . . . . . . . . . . . 20 12 Replacement of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Chapter 5 Controlled activities 132 Object of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 133 Relationship to other laws and matters . . . . . . . . . . . 20 134 Lawfulness of particular actions . . . . . . . . . . . . . . . . . 21 135 Authorised controlled activities . . . . . . . . . . . . . . . . . . 21 136 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . 22 137 Admissibility of evidence obtained through controlled activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2 Cross-Border Law Enforcement Legislation Amendment Bill 2005 138 Evidentiary provision . . . . . . . . . . . . . . . . . . . . . . . . . 23 Chapter 5A Controlled operations Part 1 Preliminary 139 Purposes of ch 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 140 Definitions for ch 5A . . . . . . . . . . . . . . . . . . . . . . . . . . 24 141 Relationship to other laws and matters . . . . . . . . . . . 27 142 When a controlled operation is conducted in this jurisdiction ............................... 28 Part 2 Controlled operations committee Division 1 Establishment 143 Establishment of controlled operations committee . . . 29 144 Independent member . . . . . . . . . . . . . . . . . . . . . . . . . 29 145 Acting independent member . . . . . . . . . . . . . . . . . . . 29 Division 2 Functions, business and recommendations 146 Committee functions. . . . . . . . . . . . . . . . . . . . . . . . . . 30 147 Committee business . . . . . . . . . . . . . . . . . . . . . . . . . . 30 148 Committee recommendations . . . . . . . . . . . . . . . . . . 30 Division 3 Protection 149 Protection for committee members. . . . . . . . . . . . . . . 31 Part 3 Authorisation of controlled operations Division 1 Procedure for authorising controlled operations 150 Application for authority to conduct controlled operation ............................. 31 151 Application must be referred to committee . . . . . . . . . 33 152 Particular CMC controlled operations. . . . . . . . . . . . . 33 153 Procedure in urgent circumstances other than if s 152 applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 154 Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . 34 155 Matters to be taken into account . . . . . . . . . . . . . . . . 35 156 Form of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 157 Duration of authority . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Division 2 Variation and cancellation of authorities 158 Variation of authority. . . . . . . . . . . . . . . . . . . . . . . . . . 39 159 Application for variation of authority . . . . . . . . . . . . . . 39 160 Variation must be referred to committee. . . . . . . . . . . 40 161 Particular CMC controlled operations. . . . . . . . . . . . . 41

3 Cross-Border Law Enforcement Legislation Amendment Bill 2005 162 Procedure in urgent circumstances other than if s 161 applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 163 Deciding the application to vary the authority. . . . . . . 42 164 Way to vary authority . . . . . . . . . . . . . . . . . . . . . . . . . 43 165 Form of variation of authority . . . . . . . . . . . . . . . . . . . 44 166 Cancellation of authority. . . . . . . . . . . . . . . . . . . . . . . 44 Division 3 Effect of authority 167 Effect of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 168 Defect in authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Part 4 Conduct of controlled operations Division 1 Controlled conduct engaged in for controlled operations 169 Protection from criminal responsibility for controlled conduct during authorised operations . . . . . . . . . . . . 46 170 Indemnification of participants against civil liability . . 47 171 Effect of ss 169170 on other laws relating to criminal investigation . . . . . . . . . . . . . . . . . . . . . . . . . 48 172 Effect of being unaware of variation or cancellation of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 173 Protection from criminal responsibility for particular ancillary conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Division 2 Compensation and notification of third parties 174 Compensation for property loss or serious damage. . 50 175 Notification requirements . . . . . . . . . . . . . . . . . . . . . . 51 Division 3 Recognition of corresponding authorities 176 Recognition of corresponding authorities . . . . . . . . . . 52 Part 5 Compliance and monitoring Division 1 Information restrictions 177 Unauthorised disclosure of information . . . . . . . . . . . 52 Division 2 Reporting and record keeping 178 Principal law enforcement officer's reports. . . . . . . . . 54 179 Chief executive officers' reports . . . . . . . . . . . . . . . . . 55 180 Annual report by report entity. . . . . . . . . . . . . . . . . . . 56 181 Keeping documents connected with authorised operations ............................... 57 182 General register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Division 3 Inspections 183 Inspection of records . . . . . . . . . . . . . . . . . . . . . . . . . 59

4 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Part 6 General Division 1 Delegation 184 Delegation generally. . . . . . . . . . . . . . . . . . . . . . . . . . 60 185 Delegation--commissioner . . . . . . . . . . . . . . . . . . . . 60 186 Delegation--CMC chairperson. . . . . . . . . . . . . . . . . . 60 Division 2 Evidentiary provisions 187 Evidence of authorities . . . . . . . . . . . . . . . . . . . . . . . . 61 Chapter 5B Assumed identities Part 1 Preliminary 188 Purpose of ch 5B . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 189 How purpose is achieved . . . . . . . . . . . . . . . . . . . . . . 62 190 Definitions for ch 5B . . . . . . . . . . . . . . . . . . . . . . . . . . 62 191 Relationship to other laws and matters . . . . . . . . . . . 64 Part 2 Authorities for assumed identities 192 Application for authority to acquire or use assumed identity ................................. 65 193 Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . 66 194 Form of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 195 Period of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 196 Variation or cancellation of authority . . . . . . . . . . . . . 68 197 Review of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Part 3 Evidence of assumed identities Division 1 Creation of birth certificates for assumed identities 197A Approval for creation of birth certificate for assumed identity ................................. 70 197B Order authorising creation of birth certificate for assumed identity under corresponding authority . . . . 70 197C Giving effect to birth certificate approval . . . . . . . . . . 71 197D Destruction of birth certificate created under s 197C . 71 197E Cancelling authority affecting entry in participating jurisdiction's register of births, deaths or marriages . . 72 197F Restriction about records and access to application for authority to create birth certificate. . . . . . . . . . . . . 72 Division 2 Other provisions about evidence of assumed identities 197G Request for evidence of assumed identity . . . . . . . . . 73 197H Government issuing agency to comply with request . 73

5 Cross-Border Law Enforcement Legislation Amendment Bill 2005 197I Non-government issuing agency may comply with request ................................. 73 197J Cancelling evidence of assumed identity . . . . . . . . . . 74 Division 3 Protections and indemnities 197K Protection from criminal responsibility--officer of issuing agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 197L Indemnity for issuing agency and officers in relation to creation of birth certificates . . . . . . . . . . . . . . . . . . 74 197M Indemnity for issuing agency and officers in relation to other evidence of assumed identities . . . . . . . . . . . 75 197N Protection from criminal responsibility for particular ancillary conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Part 4 Effect of authorities 197O Assumed identity may be acquired and used. . . . . . . 76 197P Protection from criminal responsibility--authorised person ................................. 76 197Q Indemnity for authorised person . . . . . . . . . . . . . . . . . 77 197R Particular qualifications . . . . . . . . . . . . . . . . . . . . . . . 77 197S Effect of being unaware of variation or cancellation of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Part 5 Recognition of assumed identities 197T Request to participating jurisdiction for evidence of assumed identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 197U Request from participating jurisdiction for evidence of assumed identity . . . . . . . . . . . . . . . . . . . . . . . . . . 79 197V Direction from participating jurisdiction to cancel evidence of assumed identity . . . . . . . . . . . . . . . . . . . 80 197W Indemnity for issuing agency and officer . . . . . . . . . . 80 197X Application of ch 5B to corresponding authority . . . . . 80 Part 6 Compliance and monitoring Division 1 Misuse of assumed identity and information 197Y Misuse of assumed identity . . . . . . . . . . . . . . . . . . . . 81 197Z Disclosing information about assumed identity . . . . . 82 Division 2 Reporting and record keeping 197ZA Report about authorities for assumed identities etc. . 83 197ZB Record keeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 197ZC Audit of records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Part 7 Delegation 197ZD Delegation generally. . . . . . . . . . . . . . . . . . . . . . . . . . 86

6 Cross-Border Law Enforcement Legislation Amendment Bill 2005 197ZE Delegation--commissioner . . . . . . . . . . . . . . . . . . . . 86 197ZF Delegation--CMC chairperson. . . . . . . . . . . . . . . . . . 87 Chapter 5C Surveillance device warrants Part 1 Preliminary 197ZG Purposes of ch 5C . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 197ZH Definitions for ch 5C . . . . . . . . . . . . . . . . . . . . . . . . . . 88 197ZI Meaning of relevant offence . . . . . . . . . . . . . . . . . . . . 91 197ZJ When an investigation is conducted in this jurisdiction 92 197ZK Relationship to other laws and matters . . . . . . . . . . . 92 Part 2 Warrants Division 1 Introduction 197ZL Types of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 197ZM Who may issue warrants . . . . . . . . . . . . . . . . . . . . . . 93 Division 2 Surveillance device warrants 197ZN Application for surveillance device warrant. . . . . . . . . 94 197ZO Who may be present at consideration of application . 95 197ZP Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . 96 197ZQ What must a surveillance device warrant contain . . . 97 197ZR What a surveillance device warrant authorises . . . . . 98 197ZS Extension and variation of surveillance device warrant ............................. 100 197ZT Revocation of surveillance device warrant . . . . . . . . . 101 197ZU Discontinuance of use of surveillance device under warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Division 3 Retrieval warrants 197ZV Application for retrieval warrant . . . . . . . . . . . . . . . . . 103 197ZW Who may be present at consideration of application . 103 197ZX Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . 104 197ZY What must a retrieval warrant contain . . . . . . . . . . . . 104 197ZZ What a retrieval warrant authorises . . . . . . . . . . . . . . 105 197ZZA Revocation of retrieval warrant . . . . . . . . . . . . . . . . . . 106 197ZZB Discontinuance of retrieval warrant . . . . . . . . . . . . . . 107 Part 3 Emergency authorisations 197ZZC Emergency authorisation--risk of serious personal violence or substantial property damage . . . . . . . . . . 107 197ZZD Application for approval after use of surveillance device under emergency authorisation . . . . . . . . . . . 108

7 Cross-Border Law Enforcement Legislation Amendment Bill 2005 197ZZE Who may be present at consideration of application . 109 197ZZF Consideration of application . . . . . . . . . . . . . . . . . . . . 109 197ZZG Judge may approve emergency use of powers . . . . . 110 197ZZH Admissibility of evidence . . . . . . . . . . . . . . . . . . . . . . 111 Part 4 Recognition of corresponding warrants and authorisations 197ZZI Corresponding warrants . . . . . . . . . . . . . . . . . . . . . . . 111 197ZZJ Corresponding emergency authorisations . . . . . . . . . 112 Part 5 Compliance and monitoring Division 1 Restrictions on use, communication and publication of information 197ZZK Definitions for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 197ZZL Prohibition on communication or publication of protected information . . . . . . . . . . . . . . . . . . . . . . . . . 114 197ZZM Permitted use of protected information. . . . . . . . . . . . 116 197ZZN Dealing with records obtained by use of surveillance devices . . . . . . . . . . . . . . . . . . . . . . . . 118 197ZZO Protection of surveillance device technologies and methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 197ZZP Protected information in the custody of a court . . . . . 119 Division 2 Reporting and record keeping 197ZZQ Report to judge or magistrate. . . . . . . . . . . . . . . . . . . 120 197ZZR Annual reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 197ZZS Keeping documents connected with warrants and emergency authorisations . . . . . . . . . . . . . . . . . . . . . 124 197ZZT Other records to be kept. . . . . . . . . . . . . . . . . . . . . . . 124 197ZZU Register of warrants and emergency authorisations . 125 Division 3 Inspections 197ZZV Inspection of records . . . . . . . . . . . . . . . . . . . . . . . . . 126 197ZZW Report on inspection . . . . . . . . . . . . . . . . . . . . . . . . . 127 Division 4 General 197ZZX Evidentiary certificates . . . . . . . . . . . . . . . . . . . . . . . . 127 13 Amendment of s 373 (Assistance in exercising powers) . . . . . . . 128 14 Amendment of s 375 (Power to use force--exercise of certain powers) ......................................... 129 15 Replacement of ch 11, pt 2, div 2, hdg. . . . . . . . . . . . . . . . . . . . . 129 16 Amendment of s 400 (Application of div 2). . . . . . . . . . . . . . . . . . 129 17 Insertion of new ch 11, pt 2, div 2, sdiv 2, hdg and s 402A . . . . . 130

8 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Subdivision 2 Covert acts under chapters 4 and 4A 402A Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 130 18 Amendment of s 403 (Information to be recorded in register) . . . 130 19 Insertion of new ch 11, pt 2, div 2, sdiv 3 and sdiv 4, hdg . . . . . . 130 Subdivision 3 Covert acts under chapters 5A and 5C 403A Application of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 131 403B Information to be included in register for surveillance device warrants and retrieval warrants . . 131 403C Information to be included in register for emergency authorisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 403D Information to be included in register for controlled operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 20 Amendment of s 404 (Who must record information in register) . 134 21 Amendment of s 409 (Other authorised inspections) . . . . . . . . . . 134 22 Amendment of s 411 (Application of div 3). . . . . . . . . . . . . . . . . . 135 23 Amendment of s 419 (Correcting registers) . . . . . . . . . . . . . . . . . 135 24 Amendment of s 451 (Obtaining warrants, orders and authorities, etc., by telephone or similar facility). . . . . . . . . . . . . . 135 25 Amendment of s 452 (Steps after issue of prescribed authority) . 136 26 Amendment of s 453 (Presumption about exercise of powers under prescribed authority) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 27 Amendment of s 454 (Protection of methodologies) . . . . . . . . . . 137 28 Insertion of new ch 13, pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Part 5 Transitional provisions for Cross-Border Law Enforcement Legislation Amendment Act 2005 Division 1 Preliminary 484 Definitions for pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Division 2 Controlled activities 485 Transitional provision for controlled activities . . . . . . . 138 Division 3 Controlled operations Subdivision 1 Definitions 486 Definitions for div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Subdivision 2 Controlled operations committee 487 Transitional provisions about committee membership 140 488 Transitional provisions about committee business . . . 141 Subdivision 3 Controlled operation approvals 489 Transitional provisions for police service controlled operation approvals . . . . . . . . . . . . . . . . . . . . . . . . . . 141

9 Cross-Border Law Enforcement Legislation Amendment Bill 2005 490 Transitional provisions for CMC controlled operation approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 491 Transitional provision for pre-commencement day recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Subdivision 4 Covert operatives 492 Transitional provisions for police service covert operatives ............................... 142 493 Transitional provisions for CMC covert operatives . . . 143 Division 4 Assumed identities 494 Authorities for identity documents that are birth certificates .............................. 143 495 Identity documents other than birth certificates . . . . . 144 Division 5 Surveillance devices Subdivision 1 Definitions 496 Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Subdivision 2 Transitional provisions for police service surveillance devices 497 Transitional provisions for existing police service surveillance devices . . . . . . . . . . . . . . . . . . . . . . . . . . 145 498 Transitional provisions for protection of records . . . . . 146 499 Transitional provision for use and disclosure of information obtained from using surveillance devices 147 Subdivision 3 Transitional provisions for CMC surveillance devices 500 Transitional provisions for existing CMC surveillance devices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 501 Transitional provisions for protection of records . . . . . 148 502 Transitional provisions for use and disclosure of information obtained from using surveillance devices 148 Division 6 General 503 Transitional regulation-making power . . . . . . . . . . . . . 148 29 Insertion of new schs 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Schedule 2 Relevant offences for controlled operations and surveillance device warrants Schedule 3 Relevant offences for chapter 5C disclosure of information provisions 30 Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 154

10 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Division 3 Amendments relating to Australian Crime Commission activities Subdivision 1 Controlled operations related amendments 31 Amendment of s 141 (Relationship to other laws and matters) . . 161 32 Amendment of s 143 (Establishment of controlled operations committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 33 Amendment of s 180 (Annual report by report entity) . . . . . . . . . 162 34 Replacement of s 182 (General register) . . . . . . . . . . . . . . . . . . . 162 182 General register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 35 Amendment of s 184 (Delegation generally) . . . . . . . . . . . . . . . . 162 36 Insertion of new s 186A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 186A Delegations--ACC . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 37 Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 163 Subdivision 2 Assumed identities related amendments 38 Amendment of s 191 (Relationship to other laws and matters) . . 164 39 Amendment of s 193 (Deciding application). . . . . . . . . . . . . . . . . 164 40 Amendment of s 197ZA (Report about authorities for assumed identities etc.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 41 Amendment of s 197ZD (Delegation generally) . . . . . . . . . . . . . . 164 42 Insertion of new s 197ZFA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 197ZFA Delegation--ACC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 43 Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 165 Subdivision 3 Surveillance device warrant related amendments 44 Amendment of s 197ZH (Definitions for ch 5C) . . . . . . . . . . . . . . 166 45 Amendment of s 197ZK (Relationship to other laws and matters) 166 46 Amendment of s 197ZN (Application for surveillance device warrant) ....................................... 167 47 Amendment of s 197ZZL (Prohibition on communication or publication of protected information) . . . . . . . . . . . . . . . . . . . . . . 167 48 Amendment of s 197ZZR (Annual reports) . . . . . . . . . . . . . . . . . 168 49 Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 168 Part 3 Amendment of Evidence Act 1977 Division 1 Preliminary 50 Act amended in pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Division 2 Amendments relating to police and Crime and Misconduct Commission activities 51 Replacement of pt 2, div 5 (Witness anonymity) . . . . . . . . . . . . . 169 Division 5 Witness identity protection

11 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Subdivision 1 Preliminary 21B Purposes of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 21C Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 21D Application of div 5 to lawyer of party to a proceeding .......................... 172 Subdivision 2 Witness identity protection certificates for operatives 21E Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 172 21F Giving witness identity protection certificate . . . . . . . 172 21G Form of witness identity protection certificate . . . . . . 173 21H Filing and notification . . . . . . . . . . . . . . . . . . . . . . . . . 176 21I Effect of witness identity protection certificate . . . . . . 176 21J Orders to protect operative's identity etc. . . . . . . . . . . 178 21K Disclosure of operative's identity etc. despite certificate ............................. 178 21KA Directions to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 21KB Witness identity protection certificate--cancellation . 181 21KC Permission to give information disclosing operative's identity etc. . . . . . . . . . . . . . . . . . . . . . . . . 181 21KD Disclosure offences . . . . . . . . . . . . . . . . . . . . . . . . . . 182 21KE Review of giving of witness identity protection certificate by police service . . . . . . . . . . . . . . . . . . . . 183 21KF Giving information about witness identity protection certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 21KG Report about witness identity protection certificates . 185 21KH Recognition of witness identity protection certificates under corresponding laws . . . . . . . . . . . . 186 Subdivision 3 General 21KI Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 52 Insertion of new pt 9, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 Division 3 Cross-Border Law Enforcement Legislation Amendment Act 2005 143 Witness anonymity certificates . . . . . . . . . . . . . . . . . . 187 53 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 187 Division 3 Amendments relating to Australian Crime Commission activities 54 Amendment of s 21C (Definitions for div 5) . . . . . . . . . . . . . . . . . 188 55 Amendment of s 21G (Form of witness identity protection certificate) ....................................... 189

12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 56 Amendment of s 21H (Filing and notification) . . . . . . . . . . . . . . . 189 57 Amendment of s 21KI (Delegation) . . . . . . . . . . . . . . . . . . . . . . . 189 58 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 189 Part 4 Amendment of Witness Protection Act 2000 59 Act amended in pt 4 and sch 2. . . . . . . . . . . . . . . . . . . . . . . . . . . 190 60 Replacement of pt 3, div 2 (Provisions about proceedings involving protected witnesses) . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Division 2 Proceedings involving protected witnesses Subdivision 1 Preliminary 24 Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 24A Application of div 2 to lawyer of party to a proceeding .......................... 191 Subdivision 2 Proceedings involving protected witnesses 25 Requirement if protected witness becomes a witness in a proceeding . . . . . . . . . . . . . . . . . . . . . . . 191 26 What non-disclosure certificate must state. . . . . . . . . 192 27 Effect of non-disclosure certificate . . . . . . . . . . . . . . . 192 27A Disclosure of protected witness's identity despite certificate ............................. 194 27B Recognition of corresponding non-disclosure certificate ............................. 196 61 Amendment of s 30 (Dealing with rights, obligations and restrictions of protected witness) . . . . . . . . . . . . . . . . . . . . . . . . . 196 62 Amendment of s 36 (Offence of disclosures about protected witnesses or officers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 63 Amendment of s 37 (Offence of disclosure by prescribed persons) ...................................... 196 64 Amendment of s 48 (Delegation) . . . . . . . . . . . . . . . . . . . . . . . . . 197 65 Insertion of new pt 5, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Division 2 Transitional provisions for Cross-Border Law Enforcement Legislation Amendment Act 2005 55 Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 56 Existing non-disclosure certificates . . . . . . . . . . . . . . 198 57 Provision about notice under pre-amended Act . . . . . 198 66 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 198 Part 5 Amendment of Crime and Misconduct Act 2001 67 Act amended in pt 5 and sch 3. . . . . . . . . . . . . . . . . . . . . . . . . . . 199 68 Amendment of s 40 (Commission may issue directions about how notifications are to be made) . . . . . . . . . . . . . . . . . . . . . . . . 200

13 Cross-Border Law Enforcement Legislation Amendment Bill 2005 69 Insertion of new ch 3, pt 6A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 Part 6A Controlled operations and controlled activities for misconduct offences Division 1 Preliminary 132 Object of pt 6A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 133 Investigation of minor matters not affected. . . . . . . . . 201 134 Lawfulness of particular actions . . . . . . . . . . . . . . . . . 201 135 Controlled operations and activities generally . . . . . . 202 Division 2 Controlled operations committee 136 Declaration of controlled operations committee . . . . . 202 137 Committee's functions . . . . . . . . . . . . . . . . . . . . . . . . 202 138 Provisions applying to committee and committee's annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Division 3 Approval of controlled operations 139 Application for approval . . . . . . . . . . . . . . . . . . . . . . . 204 140 Application must be referred to committee . . . . . . . . . 205 141 Particular controlled operations . . . . . . . . . . . . . . . . . 205 142 Procedure in urgent circumstances other than if s 141 applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 143 Consideration and approval of application . . . . . . . . . 206 144 What approval must state. . . . . . . . . . . . . . . . . . . . . . 207 145 Effect of approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 Division 4 Variation of approval for controlled operation 146 Application to vary approval . . . . . . . . . . . . . . . . . . . . 208 146A Application must be referred to committee . . . . . . . . . 209 146B Particular controlled operations . . . . . . . . . . . . . . . . . 209 146C Procedure in urgent circumstances other than if s 146B applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 146D When approval may be given . . . . . . . . . . . . . . . . . . . 210 146E How approval may be varied . . . . . . . . . . . . . . . . . . . 210 Division 5 Special provisions about creating identity documents 146F Request for issue of document to conceal identity . . . 211 146G Giving effect to authority under s 146F . . . . . . . . . . . 211 146H Special provisions about concealing identities of covert operatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Division 6 Authorising controlled activities 146I Authorised controlled activities . . . . . . . . . . . . . . . . . . 212

14 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Division 7 Miscellaneous 146J Disclosure of information . . . . . . . . . . . . . . . . . . . . . . 213 146K Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . 214 146L Admissibility of evidence obtained through controlled operation . . . . . . . . . . . . . . . . . . . . . . . . . . 216 146M Evidentiary provision . . . . . . . . . . . . . . . . . . . . . . . . . 216 146N Powers not to be delegated . . . . . . . . . . . . . . . . . . . . 217 70 Amendment of s 317 (Powers of the parliamentary commissioner) ................................. 217 71 Insertion of new ch 8, pt 2, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . 217 72 Insertion of new ch 8, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 Part 3 Transitional provisions for Cross-Border Law Enforcement Legislation Amendment Act 2005 376 Definitions for pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 377 Transitional provisions for pre-commencement day referrals to committee. . . . . . . . . . . . . . . . . . . . . . . . . 219 378 Transitional provisions for controlled operations. . . . . 220 379 Transitional provision for pre-commencement day recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 380 Transitional provision for covert operatives. . . . . . . . . 220 381 Transitional provisions for authorities for birth certificates ............................. 220 382 Identity documents other than birth certificates . . . . . 221 73 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 221 Part 6 Minor and consequential amendments 74 Amendment of other Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Schedule 1 Minor and consequential amendments of Police Powers and Responsibilities Act 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 Schedule 2 Minor amendments of Witness Protection Act 2000 . . . . . . . 228 Schedule 3 Minor and consequential amendments of Crime and Misconduct Act 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Schedule 4 Other Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Criminal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Freedom of Information Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . 235 Police Service Administration Act 1990 . . . . . . . . . . . . . . . . . . . . 235 Prostitution Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237

2005 A Bill for An Act to amend legislation relating to the enforcement of the criminal law

s1 16 s3 Cross-Border Law Enforcement Legislation Amendment Bill 2005 The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Cross-Border Law Enforcement 4 Legislation Amendment Act 2005. 5 Clause 2 Commencement 6 (1) This Act commences on a day to be fixed by proclamation. 7 (2) The Acts Interpretation Act 1954, section 15DA does not 8 apply to-- 9 (a) part 2, division 3;1 or 10 (b) part 3, division 3.2 11 Part 2 Amendment of Police Powers 12 and Responsibilities Act 2000 13 Division 1 Preliminary 14 Clause 3 Act amended in pt 2 and sch 1 15 This part and schedule 1 amend the Police Powers and 16 Responsibilities Act 2000. 17 1 Part 2 (Amendment of Police Powers and Responsibilities Act 2000), division 3 (Amendments relating to Australian Crime Commission activities) 2 Part 3 (Amendment of Evidence Act 1977), division 3 (Amendments relating to Australian Crime Commission activities)

s4 17 s7 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Division 2 Amendments 1 Clause 4 Insertion of new s 4A 2 After section 4-- 3 insert-- 4 `4A Act binds all persons 5 `(1) This Act binds all persons, including the State, and, so far as 6 the legislative power of the Parliament permits, the 7 Commonwealth and the other States. 8 `(2) Nothing in this Act makes the State, the Commonwealth or 9 another State liable to be prosecuted for an offence.'. 10 Clause 5 Amendment of s 8 (Act does not affect court's common 11 law discretion to exclude evidence) 12 (1) Section 8, heading, at the end-- 13 insert-- 14 `or stay criminal proceedings'. 15 (2) Section 8, after `discretion'-- 16 insert-- 17 `or stay the proceeding in the interests of justice'. 18 Clause 6 Omission of ch 4, pt 2, hdg and divs 15 19 Chapter 4, part 2, heading and divisions 1 to 5-- 20 omit. 21 Clause 7 Replacement of ch 4, pt 2, div 7, hdg 22 Chapter 4, part 2, division 7, heading-- 23 omit, insert-- 24 `Part 5 Public interest monitor'. 25

s8 18 s9 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Clause 8 Amendment of s 157 (Public interest monitor) 1 Section 157(1), from `to monitor'-- 2 omit, insert-- 3 `to monitor-- 4 (a) applications for, and the use of, surveillance device 5 warrants, retrieval warrants and covert search warrants; 6 and 7 (b) applications for approvals of the use of surveillance 8 devices under emergency authorisations.'. 9 Clause 9 Amendment of s 159 (Monitor's functions) 10 (1) Section 159(1), `surveillance warrants'-- 11 omit, insert-- 12 `surveillance device warrants, retrieval warrants, approvals of 13 the use of surveillance devices under emergency 14 authorisations,'. 15 (2) Section 159(2)-- 16 omit, insert-- 17 `(2) The functions are-- 18 (a) to monitor compliance by police officers with chapter 19 4A in relation to matters concerning applications for 20 covert search warrants; and 21 (b) to monitor compliance by law enforcement officers with 22 chapter 5C in relation to matters concerning 23 applications for surveillance device warrants, retrieval 24 warrants and approvals of the use of surveillance 25 devices under emergency authorisations; and 26 (c) to appear at any hearing of an application to a Supreme 27 Court judge for a warrant or approval mentioned in 28 paragraph (a) or (b), or to a magistrate for a warrant 29 mentioned in paragraph (b), to test the validity of the 30 application, and for that purpose at the hearing, to-- 31 (i) present questions for the applicant to answer and 32 examine or cross-examine any witness; and 33

s 10 19 s 10 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (ii) make submissions on the appropriateness of 1 granting the application; and 2 (d) to appear at a consideration of a report made to a 3 Supreme Court judge or a magistrate or given to the 4 monitor and referred to a judge or magistrate under 5 section 197ZZQ;3 and 6 (e) to gather statistical information about the use and 7 effectiveness of covert search warrants and surveillance 8 device warrants; and 9 (f) to report as required by this Act on any matter about 10 which this Act expressly requires the public interest 11 monitor to report; and 12 (g) whenever the public interest monitor considers it 13 appropriate-- 14 (i) to give to the commissioner a report on 15 noncompliance by police officers with chapter 4A; 16 or 17 (ii) to give to the chief executive officer of a law 18 enforcement agency a report on noncompliance by 19 law enforcement officers of the law enforcement 20 agency with chapter 5C.4' 21 (3) Section 159(3), `and (c)'-- 22 omit, insert-- 23 `, (c), (d) and (e)'. 24 Clause 10 Amendment of s 160 (Monitor's annual report) 25 (1) Section 160(1), `surveillance warrants and'-- 26 omit. 27 (2) Section 160(1)-- 28 insert-- 29 3 Section 197ZZQ (Report to judge or magistrate) 4 Chapter 4A (Covert search warrants), chapter 5C (Surveillance device warrants)

s 11 20 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Note-- 1 2 Under section 197ZZW, the monitor, as inspection entity for the police 5 3 service under chapter 5C, is also required to prepare reports on matters 4 relating to surveillance device warrants and give the Minister a copy of 5 the report.'. Clause 11 Renumbering and relocation of ch 4, pt 2, div 7 6 Chapter 4, part 2, division 7, as amended by sections 7 to 10-- 7 relocate to chapter 11 as part 5 and renumber sections 157 to 8 162 as sections 443P to 443U. 9 Clause 12 Replacement of ch 5 10 Chapter 5-- 11 omit, insert-- 12 `Chapter 5 Controlled activities 13 `132 Object of ch 5 14 `The object of this chapter is to ensure the effective 15 investigation of offences by-- 16 (a) ensuring anything that may be approved or authorised 17 under this chapter is approved or authorised only in 18 appropriate circumstances; and 19 (b) providing appropriate protection from civil and criminal 20 liability for persons acting under this chapter; and 21 (c) clarifying the status of evidence obtained by persons 22 who engage in controlled activities under this chapter. 23 `133 Relationship to other laws and matters 24 `(1) This chapter is not intended to affect any other law of this 25 State that authorises, controls or monitors the conduct of 26 activities-- 27 5 Section 197ZZW (Report on inspection)

s 12 21 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) that are for the purpose of obtaining evidence that may 1 lead to the prosecution of a person for an offence; and 2 (b) that involve, or may involve, conduct for which 3 participants in the operation would otherwise be 4 criminally responsible. 5 `(2) Also, this chapter is not intended to affect the investigation of 6 minor matters or investigative activities that, by their nature, 7 can not be planned but involve the participation of police 8 officers in activities that may be unlawful. 9 `(3) Subject to subsections (1) and (2), a controlled activity may be 10 approved only under this chapter. 11 `134 Lawfulness of particular actions 12 `To remove doubt, it is declared-- 13 (a) that it is lawful for a police officer of at least the rank of 14 inspector, acting in accordance with policies or 15 procedures established by the commissioner, to 16 authorise another police officer to engage in a stated 17 controlled activity for the police service; and 18 (b) that it is lawful for a person acting under an authority 19 given under section 135 to engage in a controlled 20 activity in accordance with the authority and policies or 21 procedures established by the commissioner. 22 `135 Authorised controlled activities 23 `(1) This section applies if a police officer considers it is 24 reasonably necessary for a police officer to engage in conduct 25 that-- 26 (a) is directed to obtaining evidence of the commission of 27 an offence against a particular person; and 28 (b) involves the following (a controlled activity)-- 29 (i) a single meeting between the police officer and the 30 person, whether or not the meeting was the result 31 of a written or oral communication with the 32 person; 33

s 12 22 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (ii) deliberately concealing the true purpose of the 1 communication between the police officer and the 2 person; 3 (iii) the police officer engaging in conduct for which, 4 apart from section 136, the police officer would be 5 criminally responsible. 6 `(2) A police officer of at least the rank of inspector may, in 7 accordance with any policy of the police service, authorise 8 another police officer to engage in a stated controlled activity.6 9 `(3) The authority must be written and state the controlled activity 10 the police officer is authorised to engage in. 11 `(4) A police officer authorised to engage in the controlled activity 12 must comply with any relevant policy or procedure of the 13 police service. 14 `(5) In this section-- 15 conduct includes any act or omission. 16 `136 Protection from liability 17 `(1) This section applies to each of the following persons (a 18 relevant person)-- 19 (a) a person who authorised a controlled activity under 20 section 135; 21 (b) a person who is or was authorised under this chapter to 22 engage in a controlled activity. 23 `(2) A relevant person does not incur civil liability for an act done, 24 or omission made, in the honest belief that it was done or 25 omitted to be done under this chapter. 26 `(3) If subsection (2) prevents a civil liability attaching to the 27 person, the liability attaches instead to the State. 28 `(4) Also, a relevant person does not incur criminal liability for an 29 act done, or omission made-- 30 6 Under the Freedom of Information Act 1992, section 19 (Availability of certain documents) the policy documents must be made available for inspection and purchase by members of the community.

s 12 23 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) under an authority given for a controlled activity; and 1 (b) in accordance with the policy or procedure about 2 controlled activities applying to the particular controlled 3 activity. 4 `(5) In addition, a relevant person does not incur criminal liability 5 for an act done, or omission made, that, because of a 6 controlled activity, was reasonably necessary for protecting 7 the safety of any person. 8 `(6) However, subsection (5) does not relieve a police officer from 9 criminal liability for an act done or omission made if the act or 10 omission results in-- 11 (a) injury to, or the death of, a person; or 12 (b) serious damage to property; or 13 (c) a serious loss of property. 14 `(7) This section does not limit the Police Service Administration 15 Act 1990, section 10.5.7 16 `137 Admissibility of evidence obtained through 17 controlled activities 18 `It is declared that evidence gathered because of a controlled 19 activity is not inadmissible only because it was obtained by a 20 person while engaging in an unlawful act if the unlawful act 21 was authorised under this chapter. 22 `138 Evidentiary provision 23 `In a proceeding, a certificate of the commissioner that on a 24 stated day a stated person approved the conduct of a stated 25 controlled activity is evidence of the things it states. 26 7 Police Service Administration Act 1990, section 10.5 (Liability for tort generally)

s 12 24 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Chapter 5A Controlled operations 1 `Part 1 Preliminary 2 `139 Purposes of ch 5A 3 `The main purposes of this chapter are-- 4 (a) to provide for the authorisation, conduct and monitoring 5 of controlled operations, including operations conducted 6 in this and 1 or more other jurisdictions, for the purpose 7 of obtaining evidence that may lead to the prosecution 8 of persons for particular offences and that involve or 9 may involve conduct for which participants in the 10 operation would, apart from this chapter, be criminally 11 responsible; and 12 (b) to facilitate the recognition of things done in relation to 13 controlled operations authorised under laws of other 14 jurisdictions corresponding to this chapter; and 15 (c) to ensure, as far as practicable, only appropriately 16 trained persons may act as participants in authorised 17 operations; and 18 (d) to ensure a person who may act as a participant in an 19 authorised operation engages in otherwise unlawful 20 activities only as part of the authorised operation; and 21 (e) to provide appropriate protection from civil and criminal 22 liability for persons acting under this chapter; and 23 (f) to clarify the status of evidence obtained by participants 24 in authorised operations. 25 `140 Definitions for ch 5A 26 `In this chapter-- 27 authorised operation means a controlled operation for which 28 an authority is in force. 29

s 12 25 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 authority means an authority in force under part 3,8 and 1 includes any variation of an authority. 2 civilian participant in an authorised operation means a 3 participant in the operation who is not a law enforcement 4 officer. 5 committee means the controlled operations committee 6 established under section 143.9 7 conduct includes any act or omission. 8 controlled conduct means conduct for which a person would, 9 apart from section 169 or 176,10 be criminally responsible. 10 controlled operation means an operation that-- 11 (a) is conducted, or intended to be conducted, for the 12 purpose of obtaining evidence that may lead to the 13 prosecution of a person for a relevant offence; and 14 (b) involves, or may involve, controlled conduct. 15 corresponding authorised operation means an operation in 16 the nature of a controlled operation that is authorised by or 17 under the provisions of a corresponding law. 18 corresponding authority means an authority authorising a 19 controlled operation, within the meaning of a corresponding 20 law, that is in force under the corresponding law. 21 corresponding participant means a person who is authorised 22 by a corresponding authority to participate in a corresponding 23 authorised operation. 24 criminal activity means conduct that involves the commission 25 of an offence by 1 or more persons. 26 formal application see section 150(2)(a).11 27 formal authority see section 156(1)(a).12 28 8 Part 3 (Authorisation of controlled operations) 9 Section 143 (Establishment of controlled operations committee) 10 Section 169 (Protection from criminal responsibility for controlled conduct during authorised operations) or 176 (Recognition of corresponding authorities) 11 Section 150 (Application for authority to conduct controlled operation) 12 Section 156 (Form of authority)

s 12 26 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 formal variation application see section 159(3)(a).13 1 formal variation of authority see section 164(1)(a). 14 2 illicit goods means goods the possession of which is a 3 contravention of the law of this jurisdiction. 4 inspection entity, for a law enforcement agency, means-- 5 (a) for the police service--the independent member of the 6 committee; or 7 (b) for the CMC--the parliamentary commissioner. 8 law enforcement participant in an authorised operation-- 9 (a) generally--means a participant in the operation who is a 10 law enforcement officer; and 11 (b) for an authorised operation being conducted for the 12 CMC--includes a participant in the operation who is a 13 law enforcement officer of a declared agency engaged 14 by the CMC for the operation. 15 participant in an authorised operation means a person who is 16 authorised under this chapter to engage in controlled conduct 17 for the purposes of the operation. 18 principal law enforcement officer for an authorised operation 19 means the law enforcement officer who is responsible for the 20 conduct of the operation. 21 relevant offence means-- 22 (a) a seven year imprisonment offence; or 23 (b) an indictable offence included in schedule 2. 24 report entity, for a law enforcement agency, means-- 25 (a) for the police service--the independent member of the 26 committee; or 27 (b) for the CMC--the parliamentary commissioner. 28 suspect means a person reasonably suspected of having 29 committed or being likely to have committed, or of 30 13 Section 159 (Application for variation of authority) 14 Section 164 (Way to vary authority)

s 12 27 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 committing or being likely to be committing, a relevant 1 offence. 2 urgent application see section 150(2)(b).15 3 urgent authority see section 156(1)(b). 16 4 urgent variation application see section 159(3)(b).17 5 urgent variation of authority see section 164(1)(b).18 6 `141 Relationship to other laws and matters 7 `(1) This chapter is not intended to affect any other law of this 8 jurisdiction that authorises, controls or monitors the conduct 9 of operations entirely within this jurisdiction-- 10 (a) that are for the purpose of obtaining evidence that may 11 lead to the prosecution of a person for a relevant 12 offence; and 13 (b) that involve, or may involve, conduct for which 14 participants in the operation would otherwise be 15 criminally responsible. 16 `(2) Also, this chapter does not affect the Crime and Misconduct 17 Act 2001, chapter 3, part 6A.19 18 `(3) Also, this chapter is not intended to affect the investigation of 19 minor matters or investigative activities in Queensland that, by 20 their nature, can not be planned but involve the participation 21 of law enforcement officers in activities that may be unlawful. 22 `(4) Subject to subsections (1) to (3), a controlled operation may 23 be approved only under this chapter. 24 `(5) A function conferred in relation to the activities of the CMC 25 under this chapter is only conferred for the purpose of a 26 function conferred on the CMC under the Crime and 27 15 Section 150 (Application for authority to conduct controlled operation) 16 Section 156 (Form of authority) 17 Section 159 (Application for variation of authority) 18 Section 164 (Way to vary authority) 19 Crime and Misconduct Act 2001, chapter 3 (Powers), part 6A (Controlled operations and controlled activities for misconduct offences)

s 12 28 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Misconduct Act 2001 relating to major crime as defined under 1 that Act. 2 `(6) In deciding whether evidence should be admitted or excluded 3 in any proceeding, the fact that the evidence was obtained as a 4 result of a person engaging in criminal activity is to be 5 disregarded if-- 6 (a) the person was a participant or corresponding 7 participant acting in the course of an authorised 8 operation or corresponding authorised operation; and 9 (b) the criminal activity was-- 10 (i) controlled conduct as defined under this chapter or 11 controlled conduct as defined under a 12 corresponding law; or 13 (ii) conduct for which the person is not criminally 14 responsible because of section 169(2) or a 15 corresponding provision of a corresponding law.20 16 `142 When a controlled operation is conducted in this 17 jurisdiction 18 `For this chapter, a controlled operation in relation to a 19 relevant offence is taken to be conducted in this jurisdiction, 20 whether or not it is also conducted in another jurisdiction, if a 21 participant in the operation is a law enforcement officer of this 22 jurisdiction. 23 24 Note-- 25 This provision is intended to cover the situation where an officer of this 26 jurisdiction is conducting an operation in another jurisdiction for the 27 purposes of investigating an offence of this jurisdiction, for example, a 28 Queensland officer is investigating a conspiracy to import drugs into 29 Queensland from New South Wales, and the operation is to be 30 conducted entirely in New South Wales. 20 Section 169 (Protection from criminal responsibility for controlled conduct during authorised operations)

s 12 29 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Part 2 Controlled operations 1 committee 2 `Division 1 Establishment 3 `143 Establishment of controlled operations committee 4 `(1) The controlled operations committee is established. 5 `(2) The committee must include-- 6 (a) an independent member; and 7 (b) the commissioner or the commissioner's nominee; and 8 (c) the CMC chairperson or the chairperson's nominee. 9 `(3) The committee may also include anyone else the 10 commissioner considers has appropriate knowledge or 11 experience relevant to the performance of the committee's 12 functions. 13 `144 Independent member 14 `(1) The Minister may appoint a retired Supreme Court or District 15 Court judge to be the independent member of the committee. 16 `(2) Before appointing the independent member, the Minister must 17 consult with the Premier and the Attorney-General about the 18 proposed appointment. 19 `145 Acting independent member 20 `(1) The Minister may appoint a retired Supreme Court or District 21 Court judge to act as the independent member-- 22 (a) during any vacancy in the office; or 23 (b) during any period, or all periods, when the independent 24 member is absent from duty or from the State or, for 25 another reason, can not perform the duties of the office. 26

s 12 30 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(2) Before appointing the acting independent member, the 1 Minister must consult with the Premier and the 2 Attorney-General about the proposed appointment. 3 `Division 2 Functions, business and 4 recommendations 5 `146 Committee functions 6 `The committee has the following functions-- 7 (a) to consider, and make recommendations about, 8 applications referred to the committee by a chief 9 executive officer for-- 10 (i) an authority to conduct a controlled operation; or 11 (ii) variation of an authority for a controlled operation; 12 (b) any other function conferred on it under this or another 13 Act. 14 `147 Committee business 15 `(1) The committee may conduct its business only if the 16 independent member is present. 17 `(2) The committee may otherwise conduct its business, including 18 its meetings, in the way it considers appropriate. 19 `(3) The independent member is the chairperson of the committee. 20 `(4) The chairperson must record the committee recommendations 21 in the way the chairperson considers appropriate. 22 `148 Committee recommendations 23 `(1) After considering an application and any other relevant 24 material referred to it by a chief executive officer, the 25 committee may recommend that the officer grant or refuse to 26 grant authority for a particular controlled operation. 27 `(2) However, the committee may recommend the grant of 28 authority for a controlled operation only if satisfied, having 29

s 12 31 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 regard to the nature and seriousness of the offence being or to 1 be investigated, it is appropriate for persons to engage in 2 controlled conduct for the purposes of gathering evidence that 3 may lead to the conviction of a person for the offence. 4 `Division 3 Protection 5 `149 Protection for committee members 6 `(1) A member of the committee does not incur civil liability for 7 an act done, or omission made, under this chapter. 8 `(2) If subsection (1) prevents a civil liability attaching to a 9 member of the committee, the liability attaches instead to the 10 State. 11 `(3) Also, a member of the committee does not incur criminal 12 liability for an act done, or omission made in accordance with 13 an authority given for a controlled operation under this 14 chapter because of a recommendation made by the committee. 15 `Part 3 Authorisation of controlled 16 operations 17 `Division 1 Procedure for authorising 18 controlled operations 19 `150 Application for authority to conduct controlled 20 operation 21 `(1) A law enforcement officer of a law enforcement agency may 22 apply to the chief executive officer of the agency for authority 23 to conduct a controlled operation on behalf of the agency. 24 `(2) An application for an authority may be made-- 25 (a) by way of a written document signed by the applicant (a 26 formal application); or 27

s 12 32 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (b) if the applicant reasonably believes that the delay caused 1 by making a formal application may affect the success 2 of the operation--orally in person or under section 45121 3 (an urgent application). 4 `(3) Nothing in this part prevents an application for an authority 5 being made for a controlled operation that has been the 6 subject of a previous application, but in that case the 7 subsequent application must be a formal application. 8 `(4) In an application, whether formal or urgent, the applicant 9 must-- 10 (a) provide sufficient information to enable the chief 11 executive officer to decide whether or not to grant the 12 application; and 13 (b) state-- 14 (i) whether or not the proposed operation, or any other 15 controlled operation in relation to the same 16 criminal activity, has been the subject of an earlier 17 application for an authority or variation of an 18 authority; and 19 (ii) if the proposed operation, or any other controlled 20 operation in relation to the same criminal activity, 21 has been the subject of an earlier application for an 22 authority or variation of an authority, whether or 23 not the authority was given or variation granted; 24 and 25 (iii) if the authority was given, the type of controlled 26 operation authorised. 27 `(5) In particular, the information mentioned in subsection (4)(a) 28 must include the following for the proposed operation-- 29 (a) an identifying name or number; 30 (b) a description of the criminal activity in relation to which 31 it is proposed to conduct the operation; 32 21 Section 451 (Obtaining warrants, orders and authorities, etc., by telephone or similar facility)

s 12 33 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (c) the name of each person who it is intended will act as a 1 participant in the operation; 2 (d) a precise description of the controlled conduct a civilian 3 participant will be required to engage in for the 4 operation; 5 (e) a general description of the controlled conduct a law 6 enforcement participant will be required to engage in for 7 the operation. 8 `(6) The chief executive officer may require the applicant to give 9 additional information about the proposed controlled 10 operation the chief executive officer considers appropriate for 11 consideration of the application. 12 `(7) As soon as practicable after making an urgent application, the 13 applicant must make a record in writing of the application and 14 give a copy of it to the chief executive officer. 15 16 Note-- 17 The chief executive officer may delegate powers under this section--see 18 part 6, division 1.22 `151 Application must be referred to committee 19 `(1) The chief executive officer must refer the application to the 20 committee without deciding the application. 21 `(2) However, if the chief executive officer considers the 22 application does not have enough merit to justify referring it 23 to the committee, the chief executive officer may refuse to 24 refer the application to the committee. 25 `(3) This section is subject to sections 152 and 153. 26 `152 Particular CMC controlled operations 27 `(1) This section applies to an application made to the CMC 28 chairperson for authority to conduct a controlled operation if a 29 person to be investigated by the CMC under the proposed 30 controlled operation is or may be a police officer. 31 22 Part 6 (General), division 1 (Delegation)

s 12 34 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(2) The chairperson may grant the authority without referring the 1 application to the committee but, before granting the 2 authority, the chairperson must consult with the independent 3 member and obtain the independent member's agreement to 4 the proposed operation. 5 `(3) However, the chairperson may grant an authority on an urgent 6 application made to the chairperson without complying with 7 subsection (2), but must consult with the independent member 8 about the controlled operation as soon as possible after 9 granting the authority. 10 `(4) Sections 154 and 155(2) do not apply to an application under 11 this section. 12 `153 Procedure in urgent circumstances other than if 13 s 152 applies 14 `(1) This section applies to an urgent application for authority to 15 conduct a controlled operation made to a chief executive 16 officer. 17 `(2) However, this section does not apply if section 152 applies. 18 `(3) The chief executive officer may grant the authority without 19 referring the application to the committee, but must refer the 20 application to the committee as soon as practicable after 21 granting the authority. 22 `(4) Sections 154 and 155(2) do not apply to an application under 23 this section. 24 `(5) The committee may consider the application as if the 25 application had not been granted. 26 `(6) The chief executive officer must consider the committee's 27 recommendations on the application but is not bound by the 28 recommendations. 29 `154 Deciding application 30 `After considering an application for authority to conduct a 31 controlled operation, any additional information given under 32 section 150(6), and any recommendations of the committee, 33 the chief executive officer-- 34

s 12 35 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) may authorise the operation by granting the authority, 1 with or without conditions; or 2 (b) may refuse the application. 3 4 Note-- 5 The chief executive officer may delegate powers under this section--see 6 part 6, division 1. `155 Matters to be taken into account 7 `(1) An authority to conduct a controlled operation may not be 8 granted unless the chief executive officer is satisfied on 9 reasonable grounds-- 10 (a) that a relevant offence has been, is being, or is likely to 11 be committed; and 12 (b) that the nature and extent of the suspected criminal 13 activity justifies the conduct of a controlled operation-- 14 (i) in this jurisdiction; or 15 (ii) in this jurisdiction and a participating jurisdiction, 16 if the controlled operation will be or is likely to be 17 conducted in those jurisdictions; and 18 (c) that any unlawful conduct involved in conducting the 19 operation will be limited to the maximum extent 20 consistent with conducting an effective controlled 21 operation; and 22 (d) that the operation will be conducted in a way that will 23 minimise the risk of more illicit goods being under the 24 control of persons, other than law enforcement officers, 25 at the end of the operation than are reasonably necessary 26 to enable the officers to achieve the purpose of the 27 controlled operation; and 28 (e) that the proposed controlled conduct will be capable of 29 being accounted for in a way that will enable the 30 reporting requirements of part 523 to be complied with; 31 and 32 23 Part 5 (Compliance and monitoring)

s 12 36 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (f) that the operation will not be conducted in a way that 1 makes it likely for a person to be induced to commit an 2 offence against a law of any jurisdiction or the 3 Commonwealth that the person would not otherwise 4 have intended to commit; and 5 (g) that any conduct involved in the operation will not-- 6 (i) seriously endanger the health or safety of any 7 person; or 8 (ii) cause the death of, or serious injury to, any person; 9 or 10 (iii) involve the commission of a sexual offence against 11 any person; or 12 (iv) result in serious loss of or serious damage to 13 property, other than illicit goods; and 14 (h) that any role given to a civilian participant in the 15 operation is not one that could be adequately performed 16 by a law enforcement officer; and 17 (i) that any proposed participant in the operation has 18 received appropriate training for the purpose. 19 20 Note-- 21 The chief executive officer may delegate powers under this section--see 22 part 6, division 1. `(2) Also, the chief executive officer must not grant authority for a 23 controlled operation unless the committee has recommended 24 that the authority be granted. 25 `156 Form of authority 26 `(1) An authority to conduct a controlled operation may be 27 granted-- 28 (a) by way of a written document, signed by the chief 29 executive officer (a formal authority); or 30 (b) if the chief executive officer is satisfied that the delay 31 caused by granting a formal authority may affect the 32

s 12 37 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 success of the operation--orally in person or under 1 section 45224 (an urgent authority). 2 `(2) This part does not stop an authority being granted for a 3 controlled operation that has been the subject of a previous 4 authority, but in that case the subsequent authority must be a 5 formal authority. 6 `(3) An authority, whether formal or urgent, must-- 7 (a) state an identifying name or number for the operation; 8 and 9 (b) state the name and rank or position of the person 10 granting the authority; and 11 (c) state the name of the principal law enforcement officer 12 for the operation and, if the principal law enforcement 13 officer is not the applicant for the authority, the name of 14 the applicant; and 15 (d) state whether the application was a formal application or 16 an urgent application; and 17 (e) identify each person who may engage in controlled 18 conduct for the purposes of the operation; and 19 (f) state the participating jurisdiction in which the 20 controlled conduct is, or is likely to be, engaged in; and 21 (g) identify the nature of the criminal activity, including the 22 suspected relevant offences, in relation to which the 23 controlled conduct is to be engaged in; and 24 (h) identify-- 25 (i) in relation to the law enforcement participants, the 26 nature of the controlled conduct that those 27 participants may engage in; and 28 (ii) in relation to the civilian participants, the particular 29 controlled conduct, if any, that each of the 30 participants may engage in; and 31 (i) identify, to the extent known, any suspect; and 32 24 Section 452 (Steps after issue of prescribed authority)

s 12 38 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (j) state the period of validity of the authority, of not more 1 than 6 months for a formal authority or 7 days for an 2 urgent authority; and 3 (k) state any conditions to which the conduct of the 4 operation is subject; and 5 (l) state the date and time when the authority is granted; 6 and 7 (m) identify, to the extent known-- 8 (i) the nature and quantity of any illicit goods that will 9 be involved in the operation; and 10 (ii) the route through which those goods will pass in 11 the course of the operation. 12 `(4) A person is sufficiently identified for subsection (3)(e) if the 13 person is identified-- 14 (a) by an assumed name under which the person is 15 operating; or 16 (b) by a code name or code number; 17 if the assumed name, code name or code number can be 18 matched to the person's identity. 19 `(5) The chief executive officer must ensure that written notes are 20 kept of the particulars mentioned in subsection (3) for each 21 urgent authority and issue a written authority to the applicant 22 as soon as practicable. 23 24 Note-- 25 The chief executive officer may delegate powers under this section--see 26 part 6, division 1. `157 Duration of authority 27 `Unless it is sooner cancelled, an authority has effect for the 28 period of validity stated in it under section 156(3)(j). 29

s 12 39 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Division 2 Variation and cancellation of 1 authorities 2 `158 Variation of authority 3 `(1) The chief executive officer may vary an authority granted by 4 the chief executive officer-- 5 (a) at any time on the chief executive officer's own 6 initiative; or 7 (b) on application under section 159. 8 `(2) However, a variation can not be made that has the effect of 9 extending the period of validity of an urgent authority. 10 11 Note-- 12 The chief executive officer may delegate powers under this section--see 13 part 6, division 1.25 `159 Application for variation of authority 14 `(1) The principal law enforcement officer for an authorised 15 operation, or any other law enforcement officer on behalf of 16 the principal law enforcement officer, may apply to the chief 17 executive officer for a variation of authority for any 1 or more 18 of the following purposes-- 19 (a) to extend the period of validity of the authority, other 20 than as provided by section 158(2); 21 (b) to authorise additional or alternative persons to engage 22 in controlled conduct for the purposes of the operation; 23 (c) to authorise participants in the operation to engage in 24 additional or alternative controlled conduct; 25 (d) to identify additional suspects, to the extent known. 26 `(2) More than 1 application for a variation may be made in 27 relation to the same authority, but no single variation may 28 extend the period of validity of an authority for more than 6 29 months at a time. 30 25 Part 6 (General), division 1 (Delegation)

s 12 40 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(3) An application for a variation of an authority may be made-- 1 (a) by way of a written document signed by the applicant (a 2 formal variation application); or 3 (b) if the applicant reasonably believes that the delay caused 4 by making a formal application for variation may affect 5 the success of the operation--orally in person or under 6 section 45126 (an urgent variation application). 7 `(4) In an application, whether formal or urgent, the applicant 8 must state-- 9 (a) sufficient information to enable the chief executive 10 officer to decide whether or not to grant the application; 11 and 12 (b) whether or not the proposed variation, or any other 13 variation in relation to the same authorised operation, 14 has been the subject of an earlier application for a 15 variation; and 16 (c) if the proposed variation, or any other variation in 17 relation to the same authorised operation, has been the 18 subject of an earlier application for a variation-- 19 (i) whether or not the variation was granted; and 20 (ii) if the variation was granted, the type of variation 21 granted. 22 `(5) The chief executive officer may require the applicant to give 23 additional information about the proposed variation the chief 24 executive officer considers appropriate for consideration of 25 the application. 26 `160 Variation must be referred to committee 27 `(1) The chief executive officer must refer the proposed variation 28 to the committee without deciding it, whether the chief 29 executive officer is acting under section 158(1)(a) or (b).27 30 26 Section 451 (Obtaining warrants, orders and authorities, etc., by telephone or similar facility) 27 Section 158 (Variation of authority)

s 12 41 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(2) However, if-- 1 (a) the chief executive officer is acting under section 2 158(1)(b); and 3 (b) the chief executive officer considers the application does 4 not have enough merit to justify referring it to the 5 committee; 6 the chief executive officer may refuse to refer the application 7 to the committee. 8 `(3) This section is subject to sections 161 and 162. 9 `161 Particular CMC controlled operations 10 `(1) This section applies if-- 11 (a) an application for the variation of an authority for a 12 controlled operation is made to the CMC chairperson 13 under section 159;28 and 14 (b) the chairperson had granted the authority because the 15 operation related to a person who was or who might be a 16 police officer. 17 `(2) The chairperson may vary the authority without referring the 18 application to the committee but, before varying the authority, 19 the chairperson must consult with the independent member 20 and obtain the independent member's agreement to the 21 proposed variation. 22 `(3) However, the chairperson may vary an authority on an 23 application made to the chairperson in urgent circumstances 24 without complying with subsection (2), but must consult with 25 the independent member about the variation as soon as 26 possible after granting it. 27 28 Section 159 (Application for variation of authority)

s 12 42 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `162 Procedure in urgent circumstances other than if 1 s 161 applies 2 `(1) This section applies to an application for the variation of an 3 authority for a controlled operation made to a chief executive 4 officer in urgent circumstances. 5 `(2) However, this section does not apply if section 161 applies. 6 `(3) The chief executive officer may grant the application without 7 referring it to the committee, but must refer the application to 8 the committee as soon as practicable after granting it. 9 `(4) The committee may consider the application as if the 10 application had not been granted. 11 `(5) Section 163(1) and (3) do not apply to the grant of a variation 12 of an authority under this section. 13 `(6) The chief executive officer must consider the committee's 14 recommendations on the application but is not bound by the 15 recommendations. 16 `(7) A variation under subsection (3) may only take effect for a 17 maximum period of 7 days decided by the chief executive 18 officer. 19 `163 Deciding the application to vary the authority 20 `(1) After considering an application for a variation of authority, 21 any additional information given under section 159(5),29 and 22 any recommendations of the committee, the chief executive 23 officer-- 24 (a) may vary the authority in accordance with the 25 application, with or without conditions; or 26 (b) may refuse the application. 27 `(2) Section 155(1)30 applies to an application for a variation of 28 authority under this division in the same way as it applies to 29 an application for authority under section 150.31 30 29 Section 159 (Application for variation of authority) 30 Section 155 (Matters to be taken into account) 31 Section 154 (Application for authority to conduct controlled operation)

s 12 43 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(3) Without limiting subsection (2), a variation of an authority 1 may not be granted-- 2 (a) unless the chief executive officer is satisfied on 3 reasonable grounds that the variation will not authorise a 4 significant change to the nature of the authorised 5 operation concerned; and 6 (b) unless the committee has recommended the application 7 be granted. 8 `164 Way to vary authority 9 `(1) An authority may be varied, on application or otherwise, 10 only-- 11 (a) by way of a written document signed by the chief 12 executive officer (a formal variation of authority); or 13 (b) if the person granting the variation is satisfied that the 14 delay caused by granting a formal variation of authority 15 may affect the success of the operation--orally in 16 person or under section 45232 (an urgent variation of 17 authority). 18 `(2) The chief executive officer-- 19 (a) must ensure that written notes are kept of-- 20 (i) the date and time when the authority was varied; 21 and 22 (ii) the identity of the law enforcement officer to 23 whom the variation of authority was granted; and 24 (b) must, as soon as practicable, prepare and give to the 25 applicant a written document that complies with section 26 165. 27 28 Note-- 29 The chief executive may delegate powers under this section--see part 6, 30 division 1.33 32 Section 452 (Steps after issue of prescribed authority) 33 Part 6 (General), division 1 (Delegation)

s 12 44 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `165 Form of variation of authority 1 `A variation of authority, whether formal or urgent, must 2 state-- 3 (a) an identifying name or number for the operation; and 4 (b) the name and rank or position of the person granting the 5 variation of authority; and 6 (c) the date and time when the authority was varied; and 7 (d) the provision of this chapter under which the variation 8 was made; and 9 (e) the period for which the variation has effect; and 10 (f) if the variation is made under section 159 -- 34 11 (i) the name of the applicant; and 12 (ii) whether the application was a formal variation 13 application or an urgent variation application; and 14 (g) a description of the variation having regard to the 15 purposes mentioned in section 159(1) for which the 16 application was made. 17 `166 Cancellation of authority 18 `(1) The chief executive officer may, by notice in writing given to 19 the principal law enforcement officer for an authorised 20 operation, cancel the authority at any time and for any reason. 21 `(2) Without limiting subsection (1), the chief executive officer 22 may cancel an authority for an authorised operation at any 23 time at the request of the principal law enforcement officer for 24 the operation. 25 `(3) Cancellation of an authority for a controlled operation takes 26 effect at the time the notice is given or at the later time stated 27 in the notice. 28 29 Note-- 30 The chief executive officer may delegate powers under this section--see 31 part 6, division 1. 34 Section 159 (Application for variation of authority)

s 12 45 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Division 3 Effect of authority 1 `167 Effect of authority 2 `(1) While it has effect, an authority for a controlled operation-- 3 (a) authorises each law enforcement participant to engage 4 in the controlled conduct stated in the authority in 5 relation to the law enforcement participants; and 6 (b) authorises each civilian participant, if any, to engage in 7 the particular controlled conduct, if any, stated in the 8 authority in relation to that participant; and 9 (c) authorises each participant to engage in that conduct in 10 this jurisdiction or any participating jurisdiction, subject 11 to the corresponding law of the participating 12 jurisdiction. 13 `(2) The authority to engage in controlled conduct given to a 14 participant cannot be delegated to any other person. 15 `168 Defect in authority 16 `An application for authority or variation of authority, and any 17 authority or variation of authority granted on the basis of that 18 type of application, is not invalidated by any defect, other than 19 a defect that affects the application, authority or variation in a 20 material particular. 21

s 12 46 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Part 4 Conduct of controlled 1 operations 2 `Division 1 Controlled conduct engaged in for 3 controlled operations 4 `169 Protection from criminal responsibility for controlled 5 conduct during authorised operations 6 `(1) Despite any other Act or law of this jurisdiction, a participant 7 who engages in conduct, whether in this jurisdiction or 8 elsewhere, in an authorised operation in the course of, and for 9 the purposes of, the operation, is not, if engaging in that 10 conduct is an offence, criminally responsible for the offence, 11 if-- 12 (a) the conduct is authorised by, and is engaged in, in 13 accordance with, the authority for the operation; and 14 (b) the conduct does not involve the participant 15 intentionally inducing a person to commit an offence 16 under a law of any jurisdiction or the Commonwealth 17 that the person would not otherwise have intended to 18 commit; and 19 (c) the conduct does not involve the participant engaging in 20 any conduct that is likely to-- 21 (i) cause the death of, or serious injury to, any person; 22 or 23 (ii) involve the commission of a sexual offence against 24 any person; and 25 (d) if the participant is a civilian participant--the 26 participant acts in accordance with the instructions of a 27 law enforcement officer. 28 `(2) Also, a law enforcement officer is not criminally responsible 29 for conduct that, because of an authorised operation, was 30 reasonably necessary to-- 31 (a) protect the safety of any person; or 32

s 12 47 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (b) protect the identity of a participant; or 1 (c) take advantage of an opportunity to gather evidence 2 about a relevant offence not mentioned in the authority. 3 `(3) However, subsection (2) does not relieve a law enforcement 4 officer from criminal responsibility for conduct if the conduct 5 results in-- 6 (a) injury to, or the death of, a person; or 7 (b) serious damage to property; or 8 (c) a serious loss of property; or 9 (d) a person being encouraged or induced by the officer to 10 engage in criminal activity of a kind the person could 11 not reasonably be expected to have engaged in if not 12 encouraged or induced by the officer to engage in it. 13 `170 Indemnification of participants against civil liability 14 `(1) This section applies to a law enforcement agency if a 15 controlled operation has been authorised by the chief 16 executive officer of the agency under section 152, 153 or 17 154.35 18 `(2) The law enforcement agency must indemnify a participant in 19 the authorised operation against any civil liability, including 20 reasonable costs, the participant incurs because of conduct the 21 participant engages in if-- 22 (a) the participant engages in the conduct in the course of, 23 and for the purposes of, the operation in accordance 24 with the authority for the operation; and 25 (b) the conduct does not involve the participant 26 intentionally inducing a person to commit an offence 27 under a law of any jurisdiction or the Commonwealth 28 that the person would not otherwise have intended to 29 commit; and 30 35 Section 152 (Particular CMC controlled operations), 153 (Procedure in urgent circumstances other than if s 152 applies) or 154 (Deciding application)

s 12 48 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (c) the conduct does not involve the participant engaging in 1 any conduct that is likely to-- 2 (i) cause the death of, or serious injury to, any person; 3 or 4 (ii) involve the commission of a sexual offence against 5 any person; and 6 (d) if the participant is a civilian participant--the 7 participant acts in accordance with the instructions of a 8 law enforcement officer; and 9 (e) the requirements, if any, stated under a regulation have 10 been met. 11 `171 Effect of ss 169170 on other laws relating to 12 criminal investigation 13 `Sections 169 and 17036 do not apply to a person's conduct 14 that is, or could have been, authorised under this Act, apart 15 from this chapter or another law of this jurisdiction, about the 16 following-- 17 (a) arrest or detention of individuals; 18 (b) searches of individuals; 19 (c) entry onto, or searches or inspection of, premises; 20 (d) searches, inspections or seizures of other property; 21 (e) forensic procedures; 22 (f) electronic surveillance devices; 23 (g) identification procedures; 24 (h) the acquisition or use of assumed identities; 25 (i) any other matter about powers of criminal investigation. 26 36 Sections 169 (Protection from criminal responsibility for controlled conduct during authorised operations) and 170 (Indemnification of participants against civil liability)

s 12 49 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `172 Effect of being unaware of variation or cancellation 1 of authority 2 `(1) If an authority for a controlled operation is varied in a way 3 that limits its scope, this part continues to apply to a 4 participant in the operation as if the authority had not been 5 varied in that way, for as long as the participant-- 6 (a) is unaware of the variation; and 7 (b) is not reckless about the existence of the variation. 8 `(2) If an authority for a controlled operation is cancelled, this part 9 continues to apply to a participant in the operation as if the 10 authority had not been cancelled, for as long as the 11 participant-- 12 (a) is unaware of the cancellation; and 13 (b) is not reckless about the existence of the cancellation. 14 `(3) For this section, a person is reckless about the existence of the 15 variation or cancellation of an authority if-- 16 (a) the person is aware of a substantial risk that the variation 17 or cancellation has happened; and 18 (b) having regard to the circumstances known to the person, 19 it is unjustifiable to continue to engage in conduct that 20 was, but may no longer be, authorised by the authority 21 because of the variation or cancellation. 22 `173 Protection from criminal responsibility for particular 23 ancillary conduct 24 `(1) This section applies to conduct, for example aiding or 25 enabling the commission of an offence or conspiring to 26 commit an offence (ancillary conduct), for which a person 27 may be criminally responsible because it involves conduct 28 engaged in by another person that is controlled conduct for 29 which the other person would, apart from section 169,37 be 30 criminally responsible (the related controlled conduct). 31 37 Section 169 (Protection from criminal responsibility for controlled conduct during authorised operations)

s 12 50 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 1 Note-- 2 The Criminal Code, section 7(1)(b) and (c) makes provision for a person 3 who aids or enables the commission of an offence, and the Criminal 4 Code, chapter 56, makes provision for conspiracy. `(2) Despite any other Act or law of this jurisdiction, a person who 5 engages in ancillary conduct that is an offence, whether or not 6 the person is a participant in a controlled operation, is not 7 criminally responsible for the offence if at the time the person 8 engaged in the ancillary conduct the person believed the 9 related controlled conduct was being engaged in, or would be 10 engaged in, by a participant in an authorised operation. 11 `Division 2 Compensation and notification of 12 third parties 13 `174 Compensation for property loss or serious damage 14 `(1) If a person suffers loss of or serious damage to property as a 15 direct result of an authorised operation conducted by the 16 police service or the CMC, the State is liable to pay to the 17 person compensation as agreed between the State and the 18 person or, in default of agreement, as decided by civil 19 proceedings for a debt of the amount claimed. 20 `(2) However, if, apart from subsection (1), section 45538 would 21 apply in relation to the loss or damage, the person must apply 22 for compensation, and the compensation is to be decided, 23 under section 455 and not under this section. 24 `(3) Subsection (1) does not apply if-- 25 (a) the person suffered the loss or damage in the course of, 26 or as a direct result of, engaging in any criminal activity, 27 other than criminal activity that is controlled conduct; or 28 (b) the person was a law enforcement officer at the time of 29 suffering the loss or damage. 30 38 Section 455 (Compensation)

s 12 51 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `175 Notification requirements 1 `(1) If any loss of or serious damage to property happens in the 2 course of or as a direct result of an authorised operation, the 3 principal law enforcement officer for the operation must 4 report the loss or damage to the chief executive officer of the 5 law enforcement agency as soon as practicable. 6 `(2) The chief executive officer must take all reasonable steps to 7 notify the owner of the property of the loss or damage. 8 `(3) The chief executive officer is not required to notify the owner 9 of property under this section until the chief executive officer 10 is satisfied that notification would not-- 11 (a) compromise or hinder the authorised operation; or 12 (b) compromise the identity of a participant in the 13 authorised operation; or 14 (c) endanger the life or safety of any person; or 15 (d) prejudice any legal proceeding; or 16 (e) otherwise be contrary to the public interest. 17 `(4) Subsection (1) does not apply to property of the law 18 enforcement agency on behalf of which the operation is 19 conducted or a participant in the operation. 20 `(5) If any personal injury happens in the course of or as a direct 21 result of an authorised operation, the principal law 22 enforcement officer for the operation must report the injury to 23 the chief executive of the law enforcement agency as soon as 24 possible. 25 26 Note-- 27 The chief executive officer may delegate powers under this section--see 28 part 6, division 1.39 39 Part 6 (General), division 1 (Delegation)

s 12 52 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Division 3 Recognition of corresponding 1 authorities 2 `176 Recognition of corresponding authorities 3 `The following provisions apply, with any necessary changes, 4 to a corresponding authority under a corresponding law, and 5 to a corresponding authorised operation under that law, as if 6 the corresponding authority were an authority given under 7 section 15440 for a controlled operation-- 8 (a) section 167 (Effect of authority); 9 (b) section 168 (Defect in authority); 10 (c) section 169(1) (Protection from criminal responsibility 11 for controlled conduct during authorised operations); 12 (d) section 170 (Indemnification of participants against civil 13 liability); 14 (e) section 171 (Effect of ss 169170 on other laws relating 15 to criminal investigation); 16 (f) section 172 (Effect of being unaware of variation or 17 cancellation of authority); 18 (g) section 173 (Protection from criminal responsibility for 19 particular ancillary conduct). 20 `Part 5 Compliance and monitoring 21 `Division 1 Information restrictions 22 `177 Unauthorised disclosure of information 23 `(1) A person commits an offence if-- 24 40 Section 154 (Deciding application)

s 12 53 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) the person intentionally, knowingly or recklessly 1 discloses any information; and 2 (b) the person knows that, or is reckless as to whether, the 3 information relates to an authorised operation or a 4 corresponding authorised operation; and 5 (c) the person knows that, or is reckless as to whether, the 6 disclosure is not made-- 7 (i) with the approval of the chief executive officer of 8 the relevant law enforcement agency; or 9 (ii) in connection with the administration or execution 10 of this chapter or a corresponding law; or 11 (iii) for the purposes of any legal proceeding arising out 12 of or otherwise related to this chapter or a 13 corresponding law or of any report of the 14 proceeding; or 15 (iv) under any requirement imposed by law; or 16 (v) under another law. 17 Maximum penalty--2 years imprisonment. 18 `(2) A person commits a crime if the person commits an offence 19 against subsection (1) in circumstances in which the person-- 20 (a) intends to endanger the health or safety of any person or 21 prejudice the effective conduct of an authorised 22 operation or a corresponding authorised operation; or 23 (b) knows that, or is reckless as to whether, the disclosure of 24 the information-- 25 (i) endangers or will endanger the health or safety of 26 any person; or 27 (ii) prejudices or will prejudice the effective conduct 28 of an authorised operation or a corresponding 29 authorised operation. 30 Maximum penalty--10 years imprisonment. 31

s 12 54 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(3) This section does not affect section 45441 or the Crime and 1 Misconduct Act 2001, section 213(4).42 2 `(4) In this section-- 3 relevant law enforcement agency, for a controlled operation, 4 means the law enforcement agency whose officer was granted 5 an authority to conduct the operation. 6 `Division 2 Reporting and record keeping 7 `178 Principal law enforcement officer's reports 8 `(1) Within 2 months after the end of an authorised operation, the 9 principal law enforcement officer for the operation must give 10 a report under this section to the chief executive officer of the 11 law enforcement agency. 12 `(2) The report must include the following details-- 13 (a) the date and time when the operation began and its 14 duration; 15 (b) whether the operation was conducted in this jurisdiction 16 or in this jurisdiction and a participating jurisdiction; 17 (c) the nature of the controlled conduct engaged in for the 18 purposes of the operation; 19 (d) details of the outcome of the operation; 20 (e) if the operation involved illicit goods, a statement, to the 21 extent known, of-- 22 (i) the nature and quantity of the illicit goods; and 23 (ii) the route through which the illicit goods passed in 24 the course of the operation; 25 (f) details of any loss of or serious damage to property, or 26 any personal injuries, happening in the course of or as a 27 direct result of the operation; 28 41 Section 454 (Protection of methodologies) 42 Crime and Misconduct Act 2001, section 213 (Secrecy)

s 12 55 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (g) details of any opportunity taken to gather evidence to 1 which section 169(2)(c)43 applies. 2 `179 Chief executive officers' reports 3 `(1) As soon as practicable after 31 March and 30 September in 4 each year, the chief executive officer of each law enforcement 5 agency must give a report to the report entity for the agency 6 stating the details required by subsection (2) for authorised 7 operations conducted on behalf of the agency during the 8 preceding 6 months. 9 `(2) The report must include the following details-- 10 (a) the number of formal authorities that have been granted 11 or varied by the chief executive officer, and the number 12 of formal applications for the granting or variation of 13 authorities that have been refused by the chief executive 14 officer, during the period of the report; 15 (b) the number of urgent authorities or urgent variations of 16 authorities that have been granted by the chief executive 17 officer, and the number of urgent applications for 18 authorities or urgent variations of authorities that have 19 been refused by the chief executive officer, during the 20 period of the report; 21 (c) the nature of the criminal activities against which the 22 authorised operations were directed; 23 (d) the nature of the controlled conduct engaged in for the 24 purposes of the authorised operations; 25 (e) if any of the authorised operations involved illicit goods, 26 a statement, to the extent known, of-- 27 (i) the nature and quantity of the illicit goods; and 28 (ii) the route through which the illicit goods passed in 29 the course of the operations; 30 43 Section 169 (Protection from criminal responsibility for controlled conduct during authorised operations)

s 12 56 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (f) details of any loss of or serious damage to property, or 1 any personal injuries, happening in the course of or as a 2 direct result of the authorised operations; 3 (g) details of any opportunity taken to gather evidence to 4 which section 169(2)(c)44 applies; 5 (h) the number of authorities cancelled by the chief 6 executive officer or that have expired during the period 7 to which the report relates. 8 `(3) The details mentioned in subsection (2) must be classified into 9 controlled operations conducted in this jurisdiction or 10 conducted in this jurisdiction and a participating jurisdiction. 11 `(4) The report entity may require the chief executive officer to 12 give additional information about any authorised operation to 13 which a report relates. 14 `(5) Subsection (2)(d) or (e) does not require particulars of an 15 authorised operation to be included in a report for a period of 16 6 months if the operation had not ended during that period. 17 `(6) However, the particulars must instead be included in the 18 report for the period of 6 months in which the operation ends. 19 `180 Annual report by report entity 20 `(1) The report entity for a law enforcement agency must, as soon 21 as practicable after 30 June in each year, prepare a report of 22 the work and activities of the law enforcement agency under 23 this chapter for the preceding 12 months. 24 `(2) The report entity must give a copy of the report to the chief 25 executive officer of the agency and-- 26 (a) if the agency is the police service--the Minister; or 27 (b) if the agency is the CMC--the parliamentary committee 28 chairperson. 29 `(3) The report-- 30 44 Section 169 (Protection from criminal responsibility for controlled conduct during authorised operations)

s 12 57 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) must include comments on the comprehensiveness and 1 adequacy of the reports that were given to the report 2 entity by the chief executive officer of the law 3 enforcement agency under section 179; and 4 (b) must not disclose any information that identifies any 5 suspect or a participant in an operation or that is likely 6 to lead to the person or participant being identified. 7 `(4) The chief executive officer must advise the Minister or 8 parliamentary committee chairperson of any information in 9 the report that, in the chief executive officer's opinion, should 10 be excluded from the report before the report is tabled in the 11 Legislative Assembly because the information, if made 12 public, could reasonably be expected to-- 13 (a) endanger a person's safety; or 14 (b) prejudice an investigation or prosecution; or 15 (c) compromise any law enforcement agency's operational 16 activities or methodologies. 17 `(5) The Minister or parliamentary committee chairperson must 18 exclude information from the report if satisfied on the advice 19 of the chief executive officer of any of the grounds mentioned 20 in subsection (4). 21 `(6) The Minister or chairperson must table the report in the 22 Legislative Assembly within 14 sitting days after receiving 23 the report. 24 `(7) This section does not require particulars of an authorised 25 operation to be included in a report for a year if the operation 26 had not ended as at 30 June in that year. 27 `(8) However, the particulars must instead be included in the 28 report for the year in which the operation ends. 29 `181 Keeping documents connected with authorised 30 operations 31 `The chief executive officer of a law enforcement agency must 32 cause to be kept-- 33

s 12 58 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) each formal application made by a law enforcement 1 officer of the agency; and 2 (b) each formal authority granted to a law enforcement 3 officer of the agency; and 4 (c) all written notes made under section 156(5);45 and 5 (d) each formal variation application made by a law 6 enforcement officer of the agency; and 7 (e) each formal variation of authority granted to a law 8 enforcement officer of the agency; and 9 (f) each notice cancelling an authority granted to a law 10 enforcement officer of the agency; and 11 (g) all written notes made under section 164(2)(a);46 and 12 (h) each report of a principal law enforcement officer of the 13 agency under section 175 or 178;47 and 14 (i) each recommendation made by the committee in 15 relation to an application for an authority or a variation 16 of an authority. 17 `182 General register 18 `(1) The chief executive officer of a law enforcement agency must 19 cause a general register to be kept. 20 `(2) The register must be or form part of the register of covert acts 21 kept under chapter 11, part 2.48 22 45 Section 156 (Form of authority) 46 Section 164 (Way to vary authority) 47 Section 175 (Notification requirements) or 178 (Principal law enforcement officer's reports) 48 Chapter 11 (Administration), part 2 (Registers)

s 12 59 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Division 3 Inspections 1 `183 Inspection of records 2 `(1) The inspection entity for a law enforcement agency must, 3 from time to time and at least once every 12 months, inspect 4 the records of the agency to find out the extent of compliance 5 by the agency and law enforcement officers of the agency with 6 this chapter and chapter 11, part 2,49 to the extent it applies to 7 activities under this chapter. 8 `(2) For an inspection under this section, the inspection entity-- 9 (a) after notifying the chief executive officer of the agency, 10 may enter at any reasonable time premises occupied by 11 the agency; and 12 (b) is entitled to have full and free access at all reasonable 13 times to all records of the agency that are relevant to the 14 inspection; and 15 (c) may require a member of staff of the agency to give the 16 inspection entity any information that the inspection 17 entity considers necessary, being information that is in 18 the member's possession, or to which the member has 19 access, and that is relevant to the inspection. 20 `(3) The chief executive officer must ensure that members of staff 21 of the agency give the inspection entity any help the 22 inspection entity reasonably requires to enable the inspection 23 entity to perform functions under this section. 24 `(4) This section does not limit the parliamentary commissioner's 25 powers under Crime and Misconduct Act 2001, chapter 6, 26 part 4, division 450 in relation to the functions of the CMC. 27 49 Chapter 11 (Administration), part 2 (Registers) 50 Crime and Misconduct Act 2001, chapter 6 (Administration), part 4 (Parliamentary crime and misconduct commissioner), division 4 (Powers)

s 12 60 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Part 6 General 1 `Division 1 Delegation 2 `184 Delegation generally 3 `Other than as provided by this division, and despite any other 4 Act or law to the contrary, the powers of a chief executive 5 officer under this chapter may not be delegated to any other 6 person. 7 `185 Delegation--commissioner 8 `The commissioner may delegate any of the commissioner's 9 powers under this chapter as chief executive officer relating to 10 the authorisation of controlled operations, including the 11 variation and cancellation of authorities for controlled 12 operations and notifications under section 175(2),51 to-- 13 (a) a person for the time being performing functions in the 14 police service as a deputy commissioner of the police 15 service; or 16 (b) the person for the time being performing functions in 17 the police service as the assistant commissioner of the 18 police service responsible for crime operations. 19 `186 Delegation--CMC chairperson 20 `(1) The CMC chairperson may delegate any of the chairperson's 21 powers under this chapter as chief executive officer relating to 22 the authorisation of controlled operations, including the 23 variation and cancellation of authorities for controlled 24 operations and notifications under section 175(2), to a CMC 25 assistant commissioner. 26 `(2) However, subsection (1) does not authorise the CMC 27 chairperson to exercise a power of delegation in relation to a 28 51 Section 175 (Notification requirements)

s 12 61 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 controlled operation under which a person under investigation 1 is or may be a police officer or was or may have been, at any 2 time relevant to the investigation, a police officer. 3 `Division 2 Evidentiary provisions 4 `187 Evidence of authorities 5 `(1) A document purporting to be an authority granted under 6 section 15452-- 7 (a) is admissible in any legal proceedings; and 8 (b) is evidence in any proceedings, other than criminal or 9 disciplinary proceedings against a law enforcement 10 officer, that the person granting the authority was 11 satisfied of the facts the person was required to be 12 satisfied of to grant the authority. 13 `(2) A document purporting to be an authority within the meaning 14 of a corresponding law granted under a provision of the 15 corresponding law that corresponds to section 154-- 16 (a) is admissible in any legal proceedings in this 17 jurisdiction; and 18 (b) is evidence in any proceedings, other than criminal or 19 disciplinary proceedings against a law enforcement 20 officer, that the person who granted the authority was 21 satisfied of the facts the person was required to be 22 satisfied of under the corresponding law to grant the 23 authority. 24 52 Section 154 (Deciding application)

s 12 62 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Chapter 5B Assumed identities 1 `Part 1 Preliminary 2 `188 Purpose of ch 5B 3 `The main purpose of this chapter is to facilitate, for law 4 enforcement purposes, investigations and intelligence 5 gathering in relation to criminal activity, including 6 investigations extending beyond Queensland. 7 `189 How purpose is achieved 8 `The purpose is to be achieved primarily by-- 9 (a) providing for the lawful acquisition and use of an 10 assumed identity; and 11 (b) facilitating the recognition of things done in relation to 12 an assumed identity under a corresponding law. 13 `190 Definitions for ch 5B 14 `In this chapter-- 15 acquire, an assumed identity, means acquire evidence, or take 16 steps to acquire evidence, of the identity. 17 agency means-- 18 (a) an issuing agency; or 19 (b) a law enforcement agency. 20 authorised civilian means a person, other than a law 21 enforcement officer, who is authorised under an authority to 22 acquire or use an assumed identity. 23 authorised officer means a law enforcement officer who is 24 authorised under an authority to acquire or use an assumed 25 identity. 26 authorised person means-- 27

s 12 63 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) an authorised civilian; or 1 (b) an authorised officer. 2 authority means an authority granted under section 19353 to 3 acquire or use an assumed identity, including the authority as 4 varied under section 196.54 5 birth certificate approval see-- 6 (a) section 197A;55 or 7 (b) section 197B.56 8 conduct includes any act or omission. 9 corresponding authority means-- 10 (a) an authority under a corresponding law to acquire or use 11 an assumed identity in this jurisdiction; or 12 (b) an authority under a corresponding law to request the 13 production of evidence of an assumed identity in this 14 jurisdiction. 15 criminal activity means conduct that involves the commission 16 of an offence by 1 or more persons. 17 doing a thing, includes failing to do the thing. 18 evidence, of identity, means a document or other thing, 19 including, for example, a driver licence, birth certificate, 20 credit card or identity card, that evidences or indicates, or can 21 be used to evidence or indicate, a person's identity or any 22 aspect of a person's identity. 23 government issuing agency, in relation to an authority, means 24 an entity that-- 25 (a) is named in the authority; and 26 (b) issues evidence of identity as part of performing any 27 function of the government of this jurisdiction. 28 53 Section 193 (Deciding application) 54 Section 196 (Variation or cancellation of authority) 55 Section 197A (Approval for creation of birth certificate for assumed identity) 56 Section 197B (Order authorising creation of birth certificate for assumed identity under corresponding authority)

s 12 64 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 issuing agency means-- 1 (a) a government issuing agency; or 2 (b) a non-government issuing agency. 3 non-government issuing agency, in relation to an authority, 4 means an entity, other than a government issuing agency, 5 that-- 6 (a) is named in the authority; and 7 (b) issues evidence of identity. 8 officer, of an agency, includes a person employed or engaged 9 in the agency. 10 supervisor, of an authorised civilian, means the law 11 enforcement officer, appointed under section 193(3),57 who 12 supervises or is to supervise the acquisition or use of an 13 assumed identity by the authorised civilian. 14 use an assumed identity, includes representing, whether 15 expressly or impliedly, or by saying or doing something, the 16 identity to be real when it is not. 17 `191 Relationship to other laws and matters 18 `(1) A function conferred in relation to the activities of the CMC 19 under this chapter is only conferred for the purpose of a 20 function conferred on the CMC under the Crime and 21 Misconduct Act 2001 relating to major crime as defined under 22 that Act. 23 `(2) The Public Records Act and the Freedom of Information 24 Act 1992 do not apply to activities or records under parts 2 25 to 7. 26 57 Section 193 (Deciding application)

s 12 65 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Part 2 Authorities for assumed 1 identities 2 `192 Application for authority to acquire or use assumed 3 identity 4 `(1) A law enforcement officer of a law enforcement agency may 5 apply to the chief executive officer of the agency for an 6 authority for the law enforcement officer or another person to 7 do either or both of the following-- 8 (a) acquire an assumed identity; 9 (b) use an assumed identity. 10 `(2) A separate application must be made for each assumed 11 identity to be acquired or used. 12 `(3) An application-- 13 (a) must be in writing in the form decided by the chief 14 executive officer; and 15 (b) must contain all of the following information-- 16 (i) the applicant's name; 17 (ii) if a person other than the applicant is to be 18 authorised to acquire or use an assumed 19 identity--that person's name; 20 (iii) if the person mentioned in subparagraph (ii) is not 21 a law enforcement officer--the name and rank or 22 position of the law enforcement officer proposed to 23 be appointed as supervisor, and an explanation of 24 why it is necessary for a person who is not a law 25 enforcement officer to acquire or use the assumed 26 identity; 27 (iv) details of the proposed assumed identity; 28 (v) reasons for the need to acquire or use an assumed 29 identity; 30 (vi) details, to the extent known, of the investigation or 31 intelligence gathering exercise in which the 32 assumed identity will be used; 33

s 12 66 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (vii) details of any issuing agencies and the types of 1 evidence to be issued by them. 2 `(4) The chief executive officer may require the applicant to give 3 additional information about the application the chief 4 executive officer considers appropriate for consideration of 5 the application. 6 `193 Deciding application 7 `(1) After considering an application for an authority to acquire or 8 use an assumed identity, and any additional information given 9 under section 192(4), the chief executive officer-- 10 (a) may grant an authority to acquire or use the assumed 11 identity, with or without conditions; or 12 (b) may refuse the application. 13 `(2) The chief executive officer must not grant an authority to 14 acquire or use an assumed identity unless the chief executive 15 officer is satisfied on reasonable grounds of all of the 16 following-- 17 (a) the assumed identity is necessary for the purposes of an 18 investigation or intelligence gathering in relation to 19 criminal activity; 20 (b) the risk of abuse of the assumed identity by the 21 authorised person under the authority is minimal; 22 (c) if the application is for authorisation of an assumed 23 identity for a person who is not a law enforcement 24 officer--it would be impossible or impracticable in the 25 circumstances for a law enforcement officer to acquire 26 or use the assumed identity for the purpose sought. 27 `(3) If an authority is granted for an authorised civilian, the chief 28 executive officer must appoint a law enforcement officer of 29 the law enforcement agency to supervise the acquisition or 30 use of the assumed identity by the authorised civilian. 31 `(4) The law enforcement officer appointed as supervisor under 32 subsection (3) must be-- 33

s 12 67 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) for the police service--of or above the rank of sergeant; 1 or 2 (b) for the CMC--an authorised commission officer. 3 `(5) An authority may also authorise 1 or more of the following-- 4 (a) an application to the independent member for a birth 5 certificate approval; 6 (b) an application under a corresponding law for an order 7 for an entry in a register similar to the register of births, 8 deaths or marriages kept under the Births, Deaths and 9 Marriages Registration Act 2003; 10 (c) a request under section 197G or 197T.58 11 `(6) A separate authority is required for each assumed identity. 12 `194 Form of authority 13 `(1) An authority must be-- 14 (a) in writing in the form decided by the chief executive 15 officer; and 16 (b) signed by the person granting it. 17 `(2) An authority must state all of the following-- 18 (a) the name of the person granting the authority; 19 (b) the date of the authority; 20 (c) details of the assumed identity under the authority; 21 (d) details of the evidence of the assumed identity that may 22 be acquired under the authority; 23 (e) the conditions, if any, to which the authority is subject; 24 (f) why the authority is granted; 25 (g) if the authority relates to an authorised officer--the 26 name of the officer; 27 (h) if the authority relates to an authorised civilian-- 28 58 Section 197G (Request for evidence of assumed identity) or 197T (Request to participating jurisdiction for evidence of assumed identity)

s 12 68 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (i) the name of the authorised civilian; and 1 (ii) the name of the civilian's supervisor under the 2 authority; and 3 (iii) the period, of not more than 3 months, for which 4 the authority remains in force. 5 `(3) The authority also must state the following-- 6 (a) whether it authorises-- 7 (i) an application to the independent member for a 8 birth certificate approval; or 9 (ii) an application under a corresponding law for an 10 order for an entry in a register similar to the 11 register of births, deaths or marriages kept under 12 the Births, Deaths and Marriages Registration Act 13 2003; 14 (b) each issuing agency to which a request may be made 15 under section 197G or 197T;59 16 (c) the assumed identity may be used in this jurisdiction and 17 a participating jurisdiction. 18 `195 Period of authority 19 `(1) An authority for an authorised officer remains in force until 20 cancelled under section 196. 21 `(2) An authority for an authorised civilian remains in force until 22 the end of the period stated in the authority under 23 section 194(2)(h)(iii), unless the authority is sooner cancelled 24 under section 196. 25 `196 Variation or cancellation of authority 26 `(1) The chief executive officer-- 27 (a) may vary or cancel the authority at any time; and 28 59 Section 197G (Request for evidence of assumed identity) or 197T (Request to participating jurisdiction for evidence of assumed identity)

s 12 69 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (b) must cancel the authority if satisfied, on a review under 1 section 197 or otherwise, that use of the assumed 2 identity under the authority is no longer necessary. 3 `(2) The chief executive officer must give written notice of the 4 variation or cancellation to-- 5 (a) the authorised person to whom the authority relates; and 6 (b) if the authorised person is an authorised civilian--the 7 authorised person's supervisor. 8 `(3) The notice must state the reasons for the variation or 9 cancellation. 10 `(4) The variation or cancellation has effect on-- 11 (a) the day the notice is given to the authorised person; or 12 (b) if a later day is stated in the notice--the later day. 13 `197 Review of authority 14 `(1) The chief executive officer must, at least once a year, review 15 each authority granted by the chief executive officer and in 16 force under this chapter. 17 `(2) The purpose of a review is to decide whether use of the 18 assumed identity under the authority is still necessary. 19 `(3) If the chief executive officer is satisfied on a review that use of 20 the assumed identity is no longer necessary, the chief 21 executive officer must cancel the authority under section 196. 22 `(4) If the chief executive officer is satisfied on a review that use of 23 the assumed identity is still necessary, the chief executive 24 officer must record the chief executive officer's opinion, and 25 the reasons for it, in writing. 26

s 12 70 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Part 3 Evidence of assumed identities 1 `Division 1 Creation of birth certificates for 2 assumed identities 3 `197A Approval for creation of birth certificate for assumed 4 identity 5 `(1) The chief executive officer of a law enforcement agency may 6 apply to the independent member for authority to create a 7 birth certificate (a birth certificate approval) for an assumed 8 identity for an authorised person. 9 `(2) The application must be written and include enough 10 information to enable the independent member to properly 11 consider whether the birth certificate approval should be 12 granted. 13 `(3) The independent member may grant the birth certificate 14 approval only if satisfied granting the approval is justified 15 having regard to the nature of the activities undertaken or to 16 be undertaken by the authorised person under the authority for 17 the assumed identity. 18 `(4) A birth certificate approval granted under this section must be 19 written, signed by the independent member, and state that a 20 named law enforcement officer is authorised under this 21 section to create a birth certificate for the purpose of 22 concealing the identity of an authorised person. 23 `197B Order authorising creation of birth certificate for 24 assumed identity under corresponding authority 25 `(1) The chief executive officer of a law enforcement agency under 26 a corresponding law may apply to the Supreme Court for an 27 order (a birth certificate approval) authorising a named law 28 enforcement officer of the agency to create a birth certificate 29 for an assumed identity under a corresponding authority. 30 `(2) The Supreme Court may make the order only if satisfied the 31 order is justified having regard to the nature of the activities 32

s 12 71 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 undertaken or to be undertaken by the law enforcement officer 1 or other person under the corresponding authority. 2 `(3) The Supreme Court must hear the application in the absence 3 of anyone other than the following-- 4 (a) the applicant; 5 (b) someone the court permits to be present; 6 (c) a lawyer representing anyone mentioned in 7 paragraph (a) or (b). 8 `(4) The order has effect for the time stated in the order of not 9 more than 28 days. 10 `197C Giving effect to birth certificate approval 11 `(1) On the production to the registrar-general, for inspection, of a 12 birth certificate approval-- 13 (a) the law enforcement officer named in the approval may 14 create a birth certificate as authorised under the 15 approval; and 16 (b) the registrar-general must give the officer any help the 17 officer reasonably requires for the purpose. 18 `(2) The law enforcement officer must, if practicable, give the 19 registrar-general at least 3 days notice of the day the officer 20 intends to create the birth certificate under the birth certificate 21 approval. 22 `197D Destruction of birth certificate created under s 197C 23 `(1) This section applies in relation to a birth certificate created 24 under a birth certificate approval (a created birth certificate). 25 `(2) As soon as practicable after the authority or corresponding 26 authority for an assumed identity to which the created birth 27 certificate relates is cancelled, the chief executive officer of 28 the law enforcement agency for whom the certificate was 29 created-- 30 (a) must cause the created birth certificate to be destroyed; 31 and 32

s 12 72 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (b) must notify the registrar-general that the created birth 1 certificate is no longer being used and has been 2 destroyed. 3 `197E Cancelling authority affecting entry in participating 4 jurisdiction's register of births, deaths or marriages 5 `(1) This section applies if-- 6 (a) a chief executive officer cancels an authority for an 7 assumed identity; and 8 (b) there is an entry in relation to that identity in a register 9 of births, deaths or marriages in a participating 10 jurisdiction because of an order under a corresponding 11 law of the jurisdiction. 12 `(2) The chief executive officer must apply for an order under the 13 corresponding law to cancel the entry within 28 days after the 14 day the authority is cancelled. 15 `197F Restriction about records and access to application 16 for authority to create birth certificate 17 `(1) This section applies to-- 18 (a) a proceeding on an application under section 197B for a 19 birth certificate approval in relation to the acquisition or 20 use of an assumed identity under a corresponding 21 authority; and 22 (b) an order given in the proceeding. 23 `(2) Despite the Recording of Evidence Act 1962, a transcript of 24 the proceeding must not be made. 25 `(3) A person must not publish a report of the proceeding. 26 Maximum penalty--85 penalty units or 1 year's 27 imprisonment. 28 `(4) A person is not entitled to search information in the custody of 29 a court in relation to the proceeding, unless a Supreme Court 30 judge otherwise orders in the interests of justice. 31

s 12 73 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Division 2 Other provisions about evidence of 1 assumed identities 2 `197G Request for evidence of assumed identity 3 `(1) This section applies if an authority authorises a request under 4 this section. 5 `(2) The chief executive officer who grants the authority may ask 6 the chief executive officer of an issuing agency stated in the 7 authority to-- 8 (a) produce evidence of an assumed identity in accordance 9 with the authority; and 10 (b) give evidence of the assumed identity to the authorised 11 person named in the authority. 12 `(3) The request must state a reasonable period for compliance 13 with the request. 14 `(4) A request can not be made under this section for the creation 15 of a birth certificate or a certified copy of a marriage 16 certificate. 17 `(5) In this section-- 18 evidence means evidence similar to that ordinarily produced 19 or given by the issuing agency. 20 `197H Government issuing agency to comply with request 21 `The chief executive officer of a government issuing agency 22 who receives a request under section 197G must comply with 23 the request within the reasonable period stated in the request. 24 `197I Non-government issuing agency may comply with 25 request 26 `The chief executive officer of a non-government issuing 27 agency who receives a request under section 197G may 28 comply with the request. 29

s 12 74 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `197J Cancelling evidence of assumed identity 1 `(1) The chief executive officer of an issuing agency who produces 2 evidence of an assumed identity under this part must cancel 3 the evidence if directed in writing to do so by the chief 4 executive officer who requested the evidence. 5 `(2) In this section-- 6 cancel includes delete or alter an entry in a record of 7 information. 8 `Division 3 Protections and indemnities 9 `197K Protection from criminal responsibility--officer of 10 issuing agency 11 `(1) A person who does something under division 1 or 2 that, apart 12 from this section, would be an offence, is not criminally 13 responsible for the offence, if the thing is done to give effect 14 to a birth certificate approval. 15 `(2) Also, the chief executive officer, or an officer, of an issuing 16 agency who does something that, apart from this section, 17 would be an offence, is not criminally responsible for the 18 offence if the thing is done to comply with a request under 19 section 197G or a direction under section 197J. 20 `197L Indemnity for issuing agency and officers in relation 21 to creation of birth certificates 22 `(1) This section applies if a birth certificate approval is produced 23 to the registrar-general under section 197C.60 24 `(2) The law enforcement agency to whom the birth certificate 25 approval relates must indemnify the registrar-general, or an 26 officer of the registrar-general, for any civil liability incurred 27 by the registrar-general or officer, including reasonable costs, 28 if-- 29 60 Section 197C (Giving effect to birth certificate approval)

s 12 75 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) the liability is incurred because of something done by 1 the registrar-general or officer to comply with 2 section 197C; and 3 (b) the requirements, if any, prescribed under a regulation 4 have been met. 5 `197M Indemnity for issuing agency and officers in relation 6 to other evidence of assumed identities 7 `(1) This section applies if the chief executive officer of a law 8 enforcement agency makes a request under section 197G or 9 gives a direction under section 197J to the chief executive 10 officer of an issuing agency. 11 `(2) The law enforcement agency must indemnify the issuing 12 agency, or an officer of the agency, for any civil liability 13 incurred by the agency or officer, including reasonable costs, 14 if-- 15 (a) the liability is incurred because of something done by 16 the agency or officer to comply with the request or 17 direction in the course of duty; and 18 (b) the requirements, if any, prescribed under a regulation 19 have been met. 20 `197N Protection from criminal responsibility for particular 21 ancillary conduct 22 `(1) This section applies to conduct, for example aiding or 23 enabling the commission of an offence or conspiring to 24 commit an offence (ancillary conduct), for which a person 25 may be criminally responsible because it involves conduct 26 engaged in by another person for which the other person 27 would, apart from section 197K, be criminally responsible 28 (the related conduct). 29 30 Note-- 31 The Criminal Code, section 7(1)(b) and (c) makes provision for a person 32 who aids or enables the commission of an offence, and the Criminal 33 Code, chapter 56, makes provision for conspiracy.

s 12 76 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(2) Despite any other Act or law of this jurisdiction, a person who 1 engages in ancillary conduct that is an offence, whether or not 2 the person is an authorised person or an officer of an issuing 3 agency, is not criminally responsible for the offence if at the 4 time the person engaged in the ancillary conduct the person 5 believed the related conduct was being engaged in, or would 6 be engaged in, by an authorised person or an issuing officer of 7 an agency. 8 `Part 4 Effect of authorities 9 `197O Assumed identity may be acquired and used 10 `(1) An authorised officer may acquire or use an assumed identity 11 if the acquisition or use is-- 12 (a) in accordance with an authority; and 13 (b) in the course of duty. 14 `(2) An authorised civilian may acquire or use an assumed identity 15 if the acquisition or use is in accordance with-- 16 (a) an authority; and 17 (b) the directions of the authorised civilian's supervisor. 18 `197P Protection from criminal responsibility--authorised 19 person 20 `If an authorised person does something, whether in this 21 jurisdiction or elsewhere, that, apart from this section, would 22 be an offence, the authorised person is not criminally 23 responsible for the offence if-- 24 (a) the thing is done in the course of acquiring or using an 25 assumed identity under an authority; and 26 (b) the thing is done-- 27 (i) for an authorised officer--in the course of duty; or 28

s 12 77 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (ii) for an authorised civilian--in accordance with the 1 directions of the authorised civilian's supervisor; 2 and 3 (c) doing the thing would not be an offence if the assumed 4 identity were the authorised person's real identity. 5 `197Q Indemnity for authorised person 6 `(1) This section applies if the chief executive officer of a law 7 enforcement agency grants an authority. 8 `(2) The law enforcement agency must indemnify the authorised 9 person under the authority against any civil liability, including 10 reasonable costs, incurred by the person, because of 11 something done by the person, whether in this jurisdiction or 12 elsewhere, if-- 13 (a) the thing is done in the course of acquiring or using an 14 assumed identity under the authority; and 15 (b) the thing is done-- 16 (i) for an authorised officer--in the course of duty; or 17 (ii) for an authorised civilian--in accordance with the 18 directions of the authorised civilian's supervisor; 19 and 20 (c) the requirements, if any, prescribed under a regulation 21 have been met. 22 `(3) This section does not limit the Police Service Administration 23 Act 1990, section 10.5.61 24 `197R Particular qualifications 25 `(1) Sections 197P and 197Q do not apply to anything done by an 26 authorised person if-- 27 (a) a particular qualification is needed to do the thing; and 28 (b) the person does not have the qualification. 29 61 Police Service Administration Act 1990, section 10.5 (Liability for tort generally)

s 12 78 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(2) Subsection (1) applies whether or not the authorised person 1 has acquired, as evidence of an assumed identity, a document 2 that indicates that the person has the qualification. 3 `197S Effect of being unaware of variation or cancellation 4 of authority 5 `(1) If an authority to acquire or use an assumed identity has been 6 varied in a way that limits its scope, this part continues to 7 apply to the authorised person to whom the authority relates 8 as if it had not been varied in that way, for as long as the 9 person-- 10 (a) is unaware of the variation; and 11 (b) is not reckless about the existence of the variation. 12 `(2) If an authority to acquire or use an assumed identity has been 13 cancelled, this part continues to apply to the authorised person 14 to whom the authority related as if it had not been cancelled, 15 for as long as the person-- 16 (a) is unaware of the cancellation; and 17 (b) is not reckless about the existence of the cancellation. 18 `(3) For this section, a person is reckless about the existence of the 19 variation or cancellation of an authority if-- 20 (a) the person is aware of a substantial risk that the variation 21 or cancellation has happened; and 22 (b) having regard to the circumstances known to the person, 23 it is unjustifiable to continue to use the assumed name in 24 a way that was, but may no longer be, authorised by the 25 authority because of the variation or cancellation. 26

s 12 79 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Part 5 Recognition of assumed 1 identities 2 `197T Request to participating jurisdiction for evidence of 3 assumed identity 4 `(1) This section applies if an authority authorises a request under 5 this section. 6 `(2) The chief executive officer who grants the authority may ask 7 the chief executive officer of an issuing agency of a 8 participating jurisdiction stated in the authority-- 9 (a) to produce evidence of an assumed identity in 10 accordance with the authority; and 11 (b) to give evidence of the assumed identity to the 12 authorised person named in the authority. 13 `197U Request from participating jurisdiction for evidence 14 of assumed identity 15 `(1) This section applies if-- 16 (a) a corresponding authority authorises a request for-- 17 (i) the production of evidence of an assumed identity 18 in this jurisdiction; and 19 (ii) the giving of evidence of the assumed identity to 20 the authorised person named in the authority; and 21 (b) the request is made to the chief executive officer of an 22 issuing agency in this jurisdiction; and 23 (c) the request states a reasonable period for compliance 24 with the request. 25 `(2) The chief executive officer of a government issuing agency 26 who receives the request must comply with the request within 27 the reasonable period stated in the request. 28 `(3) The chief executive officer of a non-government issuing 29 agency who receives the request may comply with the request. 30

s 12 80 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `197V Direction from participating jurisdiction to cancel 1 evidence of assumed identity 2 `(1) The chief executive officer of an issuing agency who produces 3 evidence of an assumed identity because of a request 4 mentioned in section 197U must cancel the evidence if 5 directed in writing to do so by the chief executive officer who 6 made the request. 7 `(2) In this section-- 8 cancel includes delete or alter an entry in a record of 9 information. 10 `197W Indemnity for issuing agency and officer 11 `(1) This section applies if the chief executive officer of a law 12 enforcement agency makes a request to the chief executive 13 officer of an issuing agency of a participating jurisdiction 14 under section 197T. 15 `(2) The law enforcement agency must indemnify the issuing 16 agency and any officer of the issuing agency for any civil 17 liability incurred by the agency or officer, including 18 reasonable costs, if-- 19 (a) the liability is incurred because of something done, 20 whether in this jurisdiction or elsewhere, by the agency 21 or officer to comply with the request in the course of 22 duty; and 23 (b) the requirements, if any, prescribed under a regulation 24 have been met. 25 `197X Application of ch 5B to corresponding authority 26 `The following provisions apply, with necessary changes, to 27 anything done in this jurisdiction in relation to a 28 corresponding authority as if it were an authority granted 29 under section 19362-- 30 62 Section 193 (Deciding application)

s 12 81 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) section 197K (Protection from criminal 1 liability--officer of issuing agency); 2 (b) section 197O (Assumed identity may be acquired and 3 used); 4 (c) section 197P (Protection from criminal 5 liability--authorised person); 6 (d) section 197R (Particular qualifications); 7 (e) section 197S (Effect of being unaware of variation or 8 cancellation of authority); 9 (f) section 197Y (Misuse of assumed identity); 10 (g) section 197Z (Disclosing information about assumed 11 identity). 12 `Part 6 Compliance and monitoring 13 `Division 1 Misuse of assumed identity and 14 information 15 `197Y Misuse of assumed identity 16 `(1) An authorised officer commits an offence if-- 17 (a) the officer intentionally, knowingly or recklessly 18 acquires evidence of, or uses, an assumed identity 19 covered by the officer's authority; and 20 (b) the officer knows that, or is reckless as to whether, the 21 acquisition or use is not-- 22 (i) in accordance with the officer's authority; or 23 (ii) in the course of duty. 24 Maximum penalty--2 years imprisonment. 25 `(2) An authorised civilian commits an offence if-- 26

s 12 82 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) the person intentionally, knowingly or recklessly 1 acquires evidence of, or uses, an assumed identity 2 covered by the person's authority; and 3 (b) the person knows that, or is reckless as to whether, the 4 acquisition or use is not in accordance with-- 5 (i) the person's authority; or 6 (ii) the directions of the person's supervisor under the 7 authority. 8 Maximum penalty--2 years imprisonment. 9 `197Z Disclosing information about assumed identity 10 `(1) A person commits an offence if-- 11 (a) the person intentionally, knowingly or recklessly 12 discloses any information; and 13 (b) the person knows that, or is reckless as to whether, the 14 information reveals, or is likely to reveal, that an 15 assumed identity acquired or used by another person is 16 not the other person's real identity; and 17 (c) the person knows that, or is reckless as to whether, the 18 disclosure is not made-- 19 (i) in connection with the administration or execution 20 of this chapter or a corresponding law; or 21 (ii) for the purposes of any legal proceeding arising out 22 of or otherwise related to this chapter or a 23 corresponding law or of any report of the 24 proceedings; or 25 (iii) in accordance with any requirement imposed by 26 law. 27 Maximum penalty--2 years imprisonment. 28 `(2) A person commits a crime if the person commits an offence 29 against subsection (1) in circumstances in which the person-- 30 (a) intends to endanger the health or safety of any person or 31 prejudice the effective conduct of an investigation or 32 intelligence gathering in relation to criminal activity; or 33

s 12 83 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (b) knows that, or is reckless as to whether, the disclosure of 1 the information-- 2 (i) endangers or will endanger the health or safety of 3 any person; or 4 (ii) prejudices or will prejudice the effective conduct 5 of an investigation or intelligence gathering in 6 relation to criminal activity. 7 Maximum penalty--10 years imprisonment. 8 `(3) This section does not affect section 45463 or the Crime and 9 Misconduct Act 2001, section 213(4).64 10 `Division 2 Reporting and record keeping 11 `197ZAReport about authorities for assumed identities etc. 12 `(1) As soon as practicable after the end of each financial year, the 13 chief executive officer of a law enforcement agency must give 14 to the agency's report entity a written report containing the 15 following information in relation to the agency for the 16 financial year-- 17 (a) the number of authorities granted; 18 (b) a general description of the activities undertaken by 19 authorised persons when using assumed identities under 20 this chapter; 21 (c) the number of applications for an authority that were 22 refused; 23 (d) a statement about whether or not any fraud or other 24 unlawful activity was identified by an audit under 25 section 197ZC; 26 (e) any other information relating to authorities, assumed 27 identities or the administration of this chapter that the 28 report entity considers appropriate. 29 63 Section 454 (Protection of methodologies) 64 Crime and Misconduct Act 2001, section 213 (Secrecy)

s 12 84 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(2) The report must not contain information that, if made public, 1 could reasonably be expected to-- 2 (a) endanger a person's safety; or 3 (b) prejudice an investigation or prosecution; or 4 (c) compromise any law enforcement agency's operational 5 activities or methodologies. 6 `(3) The report entity must table a copy of the report in the 7 Legislative Assembly within 14 sitting days after receiving 8 the report. 9 `(4) In this section-- 10 report entity, for a law enforcement agency, means-- 11 (a) for the police service--the Minister; or 12 (b) for the CMC--the parliamentary committee 13 chairperson. 14 `197ZBRecord keeping 15 `(1) The chief executive officer of a law enforcement agency must 16 keep appropriate records about the agency's operations under 17 this chapter. 18 `(2) The records must contain all of the following information 19 about each authority granted under this chapter in relation to 20 the agency-- 21 (a) the date on which the authority was granted and the 22 name of the person who granted it; 23 (b) if the authority was varied or cancelled under this 24 chapter--the date it was varied or cancelled, and the 25 name of the person who varied or cancelled it; 26 (c) the name of the authorised person under the authority; 27 (d) details of the assumed identity to which the authority 28 relates; 29

s 12 85 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (e) details of any request made to an issuing agency under 1 section 197G65 in relation to the authority; 2 (f) the general nature of the duties undertaken by the 3 authorised person under the assumed identity; 4 (g) general details of relevant financial transactions entered 5 into using the assumed identity; 6 (h) details of reviews of the authority under section 197.66 7 `197ZCAudit of records 8 `(1) The chief executive officer of a law enforcement agency must 9 have the records kept under section 197ZB for each authority 10 granted in relation to the agency audited-- 11 (a) at least once every 6 months while the authority is in 12 force; and 13 (b) at least once in the 6 months after the cancellation or 14 expiry of the authority. 15 `(2) The parliamentary commissioner must audit the records kept 16 by the CMC. 17 `(3) The chief executive officer of a law enforcement agency, other 18 than the CMC, must appoint a person to audit the records kept 19 by the agency. 20 `(4) The person appointed under subsection (3)-- 21 (a) may, but need not, be an officer of the law enforcement 22 agency; and 23 (b) must not be a person-- 24 (i) who granted, varied or cancelled any of the 25 authorities to which the records under 26 section 197ZB relate; or 27 (ii) who is or was an authorised person under any of 28 the authorities to which the records relate. 29 65 Section 197G (Request for evidence of assumed identity) 66 Section 197 (Review of authority)

s 12 86 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(5) A person who conducts an audit under this section for a law 1 enforcement agency must give the chief executive officer of 2 the agency a written report of the results of the audit. 3 `Part 7 Delegation 4 `197ZDDelegation generally 5 `Other than as provided by this part, and despite any other Act 6 or law to the contrary, the powers of a chief executive officer 7 under this chapter may not be delegated to any other person. 8 `197ZEDelegation--commissioner 9 `(1) The commissioner may delegate any of the commissioner's 10 powers under this chapter relating to the following to a person 11 for the time being performing functions in the police service 12 as a deputy commissioner or an assistant commissioner of the 13 police service-- 14 (a) the granting, variation and cancellation of authorities; 15 (b) conducting reviews under section 197;67 16 (c) authorising the making of an application to the 17 independent member for a birth certificate approval for 18 an assumed identity; 19 (d) making applications under section 197E;68 20 (e) making requests under section 197G or 197T.69 21 `(2) Also, the commissioner may delegate to a police officer of or 22 above the rank of inspector the commissioner's power under 23 67 Section 197 (Review of authority) 68 Section 197E (Cancelling authority affecting entry in participating jurisdiction's register of births, deaths or marriages) 69 Section 197G (Request for evidence of assumed identity) or 197T (Request to participating jurisdiction for evidence of assumed identity)

s 12 87 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 section 197A70 to apply to the independent member for 1 authority to create a birth certificate for an assumed identity. 2 `(3) No more than 4 delegations may be in force under this section 3 at any time. 4 `197ZF Delegation--CMC chairperson 5 `(1) The CMC chairperson may delegate any of the chairperson's 6 powers under this chapter relating to the following to a CMC 7 assistant commissioner-- 8 (a) the granting, variation and cancellation of authorities; 9 (b) conducting reviews under section 197; 10 (c) authorising the making of an application to the 11 independent member for a birth certificate approval for 12 an assumed identity; 13 (d) making applications under section 197E; 14 (e) making requests under section 197G or 197T. 15 `(2) Also, the CMC chairperson may delegate to an authorised 16 commission officer the chairperson's power under section 17 197A to apply to the independent member for authority to 18 create a birth certificate for an assumed identity. 19 `(3) No more than 4 delegations may be in force under this section 20 at any time. 21 70 Section 197A (Approval for creation of birth certificate for assumed identity)

s 12 88 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Chapter 5C Surveillance device 1 warrants 2 `Part 1 Preliminary 3 `197ZGPurposes of ch 5C 4 `The main purposes of this chapter are-- 5 (a) to establish procedures for law enforcement officers to 6 obtain warrants or emergency authorisations for the 7 installation, use, maintenance and retrieval of 8 surveillance devices in criminal investigations, 9 including criminal investigations extending beyond this 10 jurisdiction; and 11 (b) to recognise warrants and emergency authorisations 12 issued in other jurisdictions; and 13 (c) to restrict the use, communication and publication of 14 information obtained through the use of surveillance 15 devices or otherwise connected with surveillance device 16 operations; and 17 (d) to impose requirements for the secure storage and 18 destruction of records, and the making of reports to 19 judges, magistrates and Parliament, in connection with 20 surveillance device operations. 21 `197ZHDefinitions for ch 5C 22 `In this chapter-- 23 computer means any electronic device for storing or 24 processing information. 25 corresponding emergency authorisation means an 26 authorisation in the nature of an emergency authorisation 27 given under the provisions of a corresponding law whether or 28 not the emergency authorisation is of a kind that may be 29 issued under this chapter. 30

s 12 89 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 corresponding warrant means a warrant in the nature of a 1 surveillance or retrieval warrant issued under the provisions of 2 a corresponding law in relation to a relevant offence under a 3 corresponding law. 4 data surveillance device means any device or program 5 capable of being used to record or monitor the input of 6 information into or the output of information from a 7 computer, but does not include an optical surveillance device. 8 device includes instrument, apparatus and equipment. 9 disciplinary proceeding means a proceeding of a disciplinary 10 nature under a law of any jurisdiction or of the 11 Commonwealth. 12 emergency authorisation means an emergency authorisation 13 given under part 3.71 14 enhancement equipment, in relation to a surveillance device, 15 means equipment capable of enhancing a signal, image or 16 other information obtained by the use of the surveillance 17 device. 18 inspection entity, for a law enforcement agency, means-- 19 (a) for the police service--the public interest monitor; or 20 (b) for the CMC--the parliamentary commissioner. 21 install includes attach. 22 maintain, in relation to a surveillance device, includes-- 23 (a) adjust, relocate, repair or service the device; and 24 (b) replace a faulty device. 25 optical surveillance device means any device capable of being 26 used to record visually or observe an activity, but does not 27 include spectacles, contact lenses or a similar device used by a 28 person with impaired sight to overcome that impairment. 29 premises means premises or place as defined under this Act 30 whether in or outside this jurisdiction. 31 71 Part 3 (Emergency authorisations)

s 12 90 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 protected information, for part 5, division 1, see section 1 197ZZK.72 2 public officer means a person employed by, or holding an 3 office established by or under a law of, this jurisdiction or a 4 person employed by a public authority of this jurisdiction, and 5 includes a law enforcement officer. 6 record includes-- 7 (a) an audio, visual or audiovisual record; and 8 (b) a record in digital form; and 9 (c) a documentary record prepared from a record mentioned 10 in paragraph (a) or (b). 11 relevant offence means-- 12 (a) generally, see section 197ZI;73 or 13 (b) for part 5, division 1, see section 197ZZK. 14 relevant proceeding, for part 5, division 1, see section 15 197ZZK. 16 remote application for a warrant, means an application under 17 section 45174 in relation to a warrant. 18 report of a conversation or activity, includes a report of the 19 substance, meaning or purport of the conversation or activity. 20 retrieval warrant means a warrant issued under part 2, 21 division 3.75 22 senior officer means-- 23 (a) for the police service--a police officer of at least the 24 rank of inspector; or 25 (b) for the CMC--an authorised commission officer. 26 surveillance device means-- 27 72 Section 197ZZK (Definitions for div 1) 73 Section 197ZI (Meaning of relevant offence) 74 Section 451 (Obtaining warrants, orders and authorities, etc., by telephone or similar facility) 75 Part 2 (Warrants), division 3 (Retrieval warrants)

s 12 91 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) a data surveillance device, a listening device, an optical 1 surveillance device or a tracking device; or 2 (b) a device that is a combination of any 2 or more of the 3 devices mentioned in paragraph (a). 4 surveillance device warrant means a warrant issued under 5 part 2, division 2 or under section 197ZZG(2).76 6 three year imprisonment offence means an indictable offence 7 for which the maximum penalty is at least 3 years 8 imprisonment. 9 tracking device means any electronic device capable of being 10 used to find or monitor the geographical location of a person 11 or an object. 12 use of a surveillance device includes use of the device to 13 record a conversation or other activity. 14 warrant means surveillance device warrant or retrieval 15 warrant. 16 `197ZI Meaning of relevant offence 17 `(1) A relevant offence is an offence against a law of this 18 jurisdiction that is-- 19 (a) a seven year imprisonment offence; or 20 (b) an indictable offence included in schedule 2. 21 `(2) However, to the extent any provision of this Act applies to 22 matters mentioned in subsection (3), a relevant offence is an 23 offence against a law of this jurisdiction that is-- 24 (a) a three year imprisonment offence; or 25 (b) an indictable offence included in schedule 2. 26 `(3) For subsection (2), the matters are-- 27 (a) an application for a surveillance device warrant-- 28 76 Part 2 (Warrants), division 2 (Surveillance device warrants) or section 197ZZG (Judge may approve emergency use of powers)

s 12 92 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (i) that authorises the use of a tracking device only; 1 and 2 (ii) does not authorise covert entry to a building by a 3 by a person installing it; and 4 (b) a surveillance device warrant mentioned in paragraph 5 (a). 6 `197ZJ When an investigation is conducted in this jurisdiction 7 `For this chapter, an investigation into a relevant offence is 8 taken to be conducted in this jurisdiction, whether or not it is 9 also conducted in another jurisdiction, if a law enforcement 10 officer participates in the investigation. 11 12 Note-- 13 This provision is intended to cover the situation where an officer of this 14 jurisdiction is conducting or participating in an investigation entirely in 15 another jurisdiction for an offence of this jurisdiction, for example, a 16 Queensland officer is investigating a conspiracy to import drugs into 17 Queensland from New South Wales, and all the evidence of the offence 18 is in New South Wales. `197ZKRelationship to other laws and matters 19 `(1) This chapter is not intended to affect any other law of this 20 jurisdiction that prohibits or regulates the use of surveillance 21 devices entirely within this jurisdiction. 22 `(2) To remove doubt, it is declared that it is intended that a 23 warrant may be issued, or an emergency authorisation given, 24 in this jurisdiction under this chapter for the installation, use, 25 maintenance or retrieval of a surveillance device and any 26 related enhancement equipment in this jurisdiction or a 27 participating jurisdiction or both. 28 `(3) A function conferred under this chapter in relation to the 29 activities of the CMC is only conferred for the purpose of a 30 function conferred on the CMC under the Crime and 31 Misconduct Act 2001 relating to major crime as defined under 32 that Act. 33

s 12 93 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(4) Also, nothing in this chapter authorises the doing of anything 1 for which a warrant would be required under the 2 Telecommunications (Interception) Act 1979 (Cwlth). 3 `(5) This chapter does not stop a law enforcement officer from 4 using an optical surveillance device in a place where the 5 presence of the police officer is not an offence. 6 7 Examples-- 8 1 The police officer may use an optical surveillance device to record 9 activities in a public place or, with the occupier's consent, install 10 the device in a private place. 11 2 A police officer who is lawfully at a place may use binoculars or a 12 telescope to monitor activities at a place the police officer is not 13 lawfully entitled to enter. `(6) The Public Records Act does not apply to activities and 14 records under this chapter. 15 `(7) Also, the Freedom of Information Act 1992 does not apply to 16 activities and records under this chapter. 17 `Part 2 Warrants 18 `Division 1 Introduction 19 `197ZL Types of warrant 20 `(1) The following types of warrant may be issued under this 21 part-- 22 (a) surveillance device warrants; 23 (b) retrieval warrants. 24 `(2) A warrant issued by a Supreme Court judge may be issued in 25 relation to 1 or more kinds of surveillance device. 26 `197ZMWho may issue warrants 27 `(1) A Supreme Court judge may issue any warrant under this part. 28

s 12 94 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(2) A magistrate may issue-- 1 (a) a surveillance device warrant-- 2 (i) that authorises the use of a tracking device only; 3 and 4 (ii) that does not authorise covert entry to a building by 5 a person installing it; and 6 (b) a retrieval warrant in relation to a tracking device 7 authorised under a warrant mentioned in paragraph (a), 8 if a magistrate issued the original warrant. 9 `Division 2 Surveillance device warrants 10 `197ZNApplication for surveillance device warrant 11 `(1) A senior officer of a law enforcement agency may apply for 12 the issue of a surveillance device warrant if the officer 13 reasonably believes that-- 14 (a) a relevant offence has been, is being, is about to be or is 15 likely to be committed; and 16 (b) the use of a surveillance device in the course of an 17 investigation is or will be necessary for the purpose of 18 enabling evidence or information to be obtained of the 19 commission of the relevant offence or the identity or 20 location of the offender. 21 `(2) The application may be made to-- 22 (a) a Supreme Court judge in any case; or 23 (b) a magistrate for a surveillance device warrant that 24 authorises the use of a tracking device only. 25 `(3) The application must be sworn and state-- 26 (a) the name of the applicant; and 27 (b) the nature and duration of the warrant sought, including 28 the kind of surveillance device sought to be authorised; 29 and 30 (c) the grounds on which the warrant is sought; and 31

s 12 95 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (d) information required under a regulation, whether under 1 this Act or the Crime and Misconduct Act 2001, about 2 any warrants issued within the previous year under 3 either Act, or both Acts, in relation to the person stated 4 in the application or wherever it is sought to use the 5 surveillance device. 6 `(4) The application must also fully disclose all matters of which 7 the applicant is aware, both favourable and adverse to the 8 issuing of the warrant 9 `(5) Without limiting this section, the application may seek the use 10 of a surveillance device in a public place or in a place 11 described by reference to a class of place. 12 `(6) Subsection (3)(d) only applies to-- 13 (a) information kept in a register that the applicant may 14 inspect; and 15 (b) information the applicant otherwise actually knows. 16 `(7) The applicant must advise the public interest monitor of the 17 application under arrangements decided by the monitor. 18 `(8) The judge or magistrate may refuse to consider the application 19 until the applicant gives the judge or magistrate all the 20 information the judge or magistrate requires about the 21 application in the way the judge or magistrate requires. 22 23 Note-- 24 An application made under this section by a lawyer appearing for the 25 applicant is not a remote application. `197ZOWho may be present at consideration of application 26 `(1) The judge or magistrate must hear an application for a 27 surveillance device warrant in the absence of anyone other 28 than the following-- 29 (a) the applicant; 30 (b) a monitor; 31 (c) someone the judge or magistrate permits to be present; 32

s 12 96 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (d) a lawyer representing anyone mentioned in paragraphs 1 (a) to (c). 2 `(2) Also, the judge or magistrate must hear the application-- 3 (a) in the absence of the person proposed to be placed under 4 surveillance (the relevant person) or anyone likely to 5 inform the relevant person of the application; and 6 (b) without the relevant person having been informed of the 7 application. 8 `197ZPDeciding application 9 `(1) A Supreme Court judge or a magistrate may issue a 10 surveillance device warrant if satisfied-- 11 (a) there are reasonable grounds for the belief founding the 12 application for the warrant; and 13 (b) for a remote application--that it would have been 14 impracticable for the application to have been made in 15 person. 16 `(2) In deciding whether a surveillance device warrant should be 17 issued, the judge or magistrate, being mindful of the highly 18 intrusive nature of a surveillance device warrant, must have 19 regard to-- 20 (a) the nature and gravity of the relevant offence for which 21 the warrant is sought; and 22 (b) the extent to which the privacy of any person is likely to 23 be affected; and 24 (c) the existence of alternative ways of obtaining the 25 evidence or information sought to be obtained and the 26 extent to which those ways may help or prejudice the 27 investigation; and 28 (d) the evidentiary or intelligence value of any information 29 sought to be obtained; and 30 (e) any previous warrant of a similar kind sought or issued 31 under this Act, the Crime and Misconduct Act 2001 or a 32 corresponding law, if known, in connection with the 33 same offence; and 34

s 12 97 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (f) any submissions made by a monitor. 1 `(3) The judge or magistrate may issue a warrant for the use of a 2 surveillance device in the office of a practising lawyer only if 3 the application for the warrant relates to the lawyer's 4 involvement in a relevant offence. 5 `(4) A magistrate may issue a warrant for the use of a tracking 6 device only if the warrant does not authorise covert entry to a 7 building by a person installing the device. 8 `197ZQWhat must a surveillance device warrant contain 9 `(1) A surveillance device warrant must-- 10 (a) state that the judge or magistrate is satisfied of the 11 matters mentioned in section 197ZP(1) and has had 12 regard to the matters mentioned in section 197ZP(2); 13 and 14 (b) state-- 15 (i) the applicant's name; and 16 (ii) the relevant offence in relation to which the 17 warrant is issued; and 18 (iii) the date and time the warrant is issued; and 19 (iv) the kind of surveillance device authorised to be 20 used; and 21 (v) if the warrant authorises the use of a surveillance 22 device on premises--the premises where the use of 23 the surveillance device is authorised; and 24 (vi) if the warrant authorises the use of an optical 25 surveillance device that is to be installed in a 26 dwelling--the parts of the dwelling in which the 27 device may be installed; and 28 (vii) if the warrant authorises the use of a surveillance 29 device in or on an object or class of object--the 30 object or class of object in or on which the use of 31 the surveillance device is authorised; and 32

s 12 98 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (viii) if the warrant authorises the use of a surveillance 1 device in relation to the conversations, activities or 2 geographical location of a person--the name of the 3 person, if known; and 4 (ix) the period, of not more than 90 days, during which 5 the warrant is in force, and the day and time the 6 warrant starts and when the warrant ends; and 7 (x) the name of the law enforcement officer primarily 8 responsible for executing the warrant; and 9 (xi) any conditions subject to which premises may be 10 entered, or a surveillance device may be used, 11 under the warrant; and 12 (xii) the time within which a report in relation to the 13 warrant must be made under section 197ZZQ and 14 to whom the report must be made. 15 `(2) For a warrant mentioned in subsection (1)(b)(viii), if the 16 identity of the person is unknown, the warrant must state that 17 fact. 18 `(3) A warrant must be signed by the person issuing it and include 19 their name. 20 21 Note-- 22 See section 452(1) for records the issuer must keep for surveillance 23 warrants issued on a remote application. `197ZRWhat a surveillance device warrant authorises 24 `(1) A surveillance device warrant may authorise, as stated in the 25 warrant, any 1 or more of the following-- 26 (a) the use of a surveillance device on stated premises; 27 (b) the use of a surveillance device in or on a stated object 28 or class of object; 29 (c) the use of a surveillance device in relation to the private 30 conversations, activities or geographical location of a 31 stated person or a person whose identity is unknown. 32 `(2) A surveillance device warrant authorises-- 33

s 12 99 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) for a warrant of a kind mentioned in subsection (1)(a)-- 1 (i) the installation, use and maintenance of a 2 surveillance device of the kind stated in the 3 warrant on the stated premises; and 4 (ii) the entry onto the premises, or other stated 5 premises adjoining or providing access to the 6 premises, for any of the purposes mentioned in 7 subparagraph (i) or subsection (3); and 8 (b) for a warrant of a kind mentioned in subsection (1)(b)-- 9 (i) the installation, use and maintenance of a 10 surveillance device of the kind stated in the 11 warrant in or on the stated object or an object of the 12 stated class; and 13 (ii) the entry onto any premises where the object, or an 14 object of the class, is reasonably believed to be or 15 is likely to be, or other premises adjoining or 16 providing access to those premises, for any of the 17 purposes mentioned in subparagraph (i) or 18 subsection (3); and 19 (c) for a warrant of a kind mentioned in subsection (1)(c)-- 20 (i) the installation, use and maintenance of a 21 surveillance device of the kind stated in the 22 warrant, on premises where the person is 23 reasonably believed to be or is likely to be; and 24 (ii) the entry onto the premises mentioned in 25 subparagraph (i), or other premises adjoining or 26 providing access to those premises, for any of the 27 purposes mentioned in subparagraph (i) or 28 subsection (3). 29 `(3) Each surveillance device warrant also authorises-- 30 (a) the retrieval of the surveillance device; and 31 (b) the installation, use, maintenance and retrieval of any 32 enhancement equipment in relation to the surveillance 33 device; and 34 (c) the temporary removal of an object from premises for 35 the purpose of the installation, maintenance or retrieval 36

s 12 100 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 of the surveillance device or enhancement equipment 1 and the return of the object to the premises; and 2 (d) the breaking open of any thing for the purpose of the 3 installation, maintenance or retrieval of the surveillance 4 device or enhancement equipment; and 5 (e) the connection of the device or equipment to an 6 electricity supply system and the use of electricity from 7 that system to operate the surveillance device or 8 enhancement equipment; and 9 (f) the connection of the device or equipment to a telephone 10 system and the use of that system in connection with the 11 operation of the surveillance device or enhancement 12 equipment. 13 `(4) A surveillance device warrant may authorise the doing of 14 anything reasonably necessary to conceal the fact that 15 anything has been done in relation to the installation, use, 16 maintenance or retrieval of a surveillance device or 17 enhancement equipment under the warrant. 18 `(5) A law enforcement officer may use a surveillance device 19 under a warrant only if the officer is acting in the performance 20 of the officer's duty. 21 `(6) This section applies to a warrant subject to any conditions 22 stated in the warrant. 23 `197ZSExtension and variation of surveillance device 24 warrant 25 `(1) A senior officer of a law enforcement agency to whom a 26 surveillance device warrant has been issued may apply, at any 27 time before the expiry of the warrant-- 28 (a) for an extension of the warrant for a period of not more 29 than 90 days from the day on which it would otherwise 30 expire; or 31 (b) for a variation of any of the other terms of the warrant. 32 `(2) The application must be made to-- 33

s 12 101 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) a Supreme Court judge, if the warrant was issued by a 1 Supreme Court judge; or 2 (b) a magistrate, if the warrant was issued by a magistrate. 3 `(3) Section 197ZN applies, with any necessary changes, to an 77 4 application under this section as if it were an application for 5 the warrant. 6 `(4) The judge or magistrate may grant an application, subject to 7 any conditions the judge or magistrate considers appropriate, 8 if satisfied that the matters mentioned in section 197ZP(1) still 9 exist, having regard to the matters mentioned in section 10 197ZP(2).78 11 `(5) If the judge or magistrate grants the application, the judge or 12 magistrate must write the new expiry date or the other varied 13 term on the original warrant. 14 `(6) An application may be made under this section more than 15 once. 16 `197ZT Revocation of surveillance device warrant 17 `(1) A surveillance device warrant may be revoked at any time 18 before the expiry of the period of validity stated in it by-- 19 (a) a Supreme Court judge, if a Supreme Court judge issued 20 the warrant; or 21 (b) a magistrate, if a magistrate issued the warrant. 22 `(2) Also, a judge or magistrate may revoke a surveillance warrant 23 after receiving a report under section 197ZZQ79 about the 24 warrant. 25 `(3) A judge or magistrate who revokes a warrant must cause 26 notice of the revocation to be given to the chief executive 27 officer of the law enforcement agency of which the law 28 enforcement officer to whom the warrant was issued is a 29 member. 30 77 Section 197ZN (Application for surveillance device warrant) 78 Section 197ZP (Deciding application) 79 Section 197ZZQ (Report to judge or magistrate)

s 12 102 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `197ZUDiscontinuance of use of surveillance device under 1 warrant 2 `(1) This section applies if a surveillance device warrant is issued 3 to a senior officer of a law enforcement agency. 4 `(2) If the senior officer to whom the warrant is issued, or the law 5 enforcement officer who is primarily responsible for 6 executing the warrant, believes that use of a surveillance 7 device under the warrant is no longer necessary for the 8 purpose of enabling evidence to be obtained of the 9 commission of the relevant offence or the identity or location 10 of the offender, the officer must inform the chief executive 11 officer of the law enforcement agency immediately. 12 `(3) If the chief executive officer of the law enforcement agency is 13 satisfied, whether because of subsection (2) or otherwise, that 14 the use of a surveillance device under the warrant is no longer 15 necessary for the purpose of enabling evidence to be obtained 16 of the commission of the relevant offence or the identity or 17 location of the offender, the chief executive officer-- 18 (a) must take the steps necessary to ensure that use of the 19 surveillance device authorised by the warrant is 20 discontinued as soon as practicable; and 21 (b) must give written notice of that fact to the public interest 22 monitor. 23 `(4) If notice is given under subsection (3)(b) for a surveillance 24 device warrant, the warrant stops having effect other than to 25 the extent it authorises the removal of a surveillance device 26 and any enhancement equipment. 27 `(5) Also, if the chief executive officer is notified that the warrant 28 has been revoked by a judge or magistrate under 29 section 197ZT(1), the chief executive officer must take the 30 steps necessary to ensure that use of the surveillance device 31 authorised by the warrant is discontinued immediately. 32

s 12 103 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Division 3 Retrieval warrants 1 `197ZVApplication for retrieval warrant 2 `(1) A law enforcement officer may apply for the issue of a 3 retrieval warrant in relation to a surveillance device or 4 enhancement equipment-- 5 (a) that was lawfully installed on premises, or in or on an 6 object, under a surveillance device warrant; and 7 (b) that the law enforcement officer reasonably believes is 8 still on those premises or in or on that object, or on other 9 premises or in or on another object. 10 `(2) The application may be made to-- 11 (a) a Supreme Court judge in any case; or 12 (b) a magistrate for an application for a retrieval warrant-- 13 (i) that authorises the retrieval of a tracking device 14 only; and 15 (ii) that does not authorise covert entry to a building by 16 a person retrieving it. 17 `(3) The application must be sworn and state the grounds on which 18 the warrant is sought. 19 `(4) The applicant must advise the public interest monitor of the 20 application under arrangements decided by the monitor. 21 `(5) The judge or magistrate may refuse to consider the application 22 until the applicant gives the judge all the information the 23 judge or magistrate requires about the application in the way 24 the judge or magistrate requires. 25 `197ZW Who may be present at consideration of application 26 `(1) The judge or magistrate must hear an application for a 27 retrieval warrant in the absence of anyone other than the 28 following-- 29 (a) the applicant; 30 (b) a monitor; 31

s 12 104 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (c) someone the judge or magistrate permits to be present; 1 (d) a lawyer representing anyone mentioned in paragraphs 2 (a) to (c). 3 `(2) Also, the judge or magistrate must hear the application-- 4 (a) in the absence of the person placed under surveillance 5 (the relevant person) or anyone likely to inform the 6 relevant person of the application; and 7 (b) without the relevant person having been informed of the 8 application. 9 `197ZXDeciding application 10 `(1) A Supreme Court judge or a magistrate may issue a retrieval 11 warrant if the judge or magistrate is satisfied-- 12 (a) that there are reasonable grounds for the belief founding 13 the application for the warrant; and 14 (b) for a remote application--that it would have been 15 impracticable for the application to have been made in 16 person. 17 `(2) In deciding whether a retrieval warrant should be issued, the 18 judge or magistrate must have regard to-- 19 (a) the extent to which the privacy of any person is likely to 20 be affected; and 21 (b) the public interest in retrieving the device sought to be 22 retrieved; and 23 (c) any submissions made by a monitor. 24 `197ZYWhat must a retrieval warrant contain 25 `(1) A retrieval warrant must-- 26 (a) state that the judge or magistrate is satisfied of the 27 matters mentioned in section 197ZX(1) and has had 28 regard to the matters mentioned in section 197ZX(2); 29 and 30 (b) state-- 31

s 12 105 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (i) the name of the applicant; and 1 (ii) the date and time the warrant is issued; and 2 (iii) the kind of surveillance device authorised to be 3 retrieved; and 4 (iv) the premises or object from which the surveillance 5 device is to be retrieved; and 6 (v) the period, of not more than 90 days, during which 7 the warrant is in force, including the date and time 8 the warrant starts and when the warrant ends; and 9 (vi) the name of the law enforcement officer primarily 10 responsible for executing the warrant; and 11 (vii) any conditions on which premises may be entered 12 under the warrant; and 13 (viii) the time within which a report in relation to the 14 warrant must be made under section 197ZZQ80 and 15 to whom the report must be made. 16 `(2) A warrant must be signed by the person issuing it and include 17 their name. 18 19 Note-- 20 See section 452(1) for records the issuer must keep for retrieval warrants 21 issued on a remote application. `197ZZ What a retrieval warrant authorises 22 `(1) A retrieval warrant, subject to any conditions stated in it, 23 authorises-- 24 (a) the retrieval of the surveillance device stated in the 25 warrant and any enhancement equipment in relation to 26 the device or, if the warrant relates to the retrieval of 27 enhancement equipment only, the enhancement 28 equipment; and 29 (b) the entry onto premises where the surveillance device is 30 reasonably believed to be, or other premises adjoining or 31 80 Section 197ZZQ (Report to judge or magistrate)

s 12 106 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 providing access to those premises, for the purpose of 1 retrieving the device and equipment; and 2 (c) the breaking open of any thing for the purpose of the 3 retrieval of the device and equipment; and 4 (d) if the device or equipment is installed on or in an object, 5 the temporary removal of the object from any place 6 where it is situated for the purpose of the retrieval of the 7 device and equipment and the return of the object to that 8 place. 9 `(2) Also, the warrant authorises the use of the surveillance device 10 and any related enhancement equipment solely for the 11 purpose of the retrieval of the device and any enhancement 12 equipment. 13 `(3) However, if the warrant authorises the use of the surveillance 14 device in another jurisdiction, subsection (2) applies subject to 15 the corresponding law of the jurisdiction. 16 `(4) A retrieval warrant may authorise the doing of anything 17 reasonably necessary to conceal the fact that anything has 18 been done in relation to the retrieval of a surveillance device 19 or enhancement equipment under the warrant. 20 `197ZZA Revocation of retrieval warrant 21 `(1) A retrieval warrant may be revoked at any time before the 22 expiry of the period of validity stated in it by-- 23 (a) a Supreme Court judge, if a Supreme Court judge issued 24 the warrant; or 25 (b) a magistrate, if a magistrate issued the warrant. 26 `(2) A judge or magistrate may revoke a retrieval warrant after 27 receiving a report under section 197ZZQ81 about the warrant. 28 `(3) A judge or magistrate who revokes a warrant must cause 29 notice of the revocation to be given to the chief executive 30 officer of the law enforcement agency of which the law 31 81 Section 197ZZQ (Report to judge or magistrate)

s 12 107 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 enforcement officer to whom the warrant was issued is a 1 member. 2 `197ZZB Discontinuance of retrieval warrant 3 `(1) If the law enforcement officer to whom a retrieval warrant has 4 been issued, or who is primarily responsible for executing a 5 retrieval warrant, believes that the grounds for issue of the 6 warrant no longer exist, the law enforcement officer must 7 inform the chief executive officer of the law enforcement 8 agency immediately. 9 `(2) If the chief executive officer of a law enforcement agency is 10 satisfied, whether because of subsection (1) or otherwise, that 11 the grounds for issue of a retrieval warrant to a law 12 enforcement officer of the agency no longer exist, the chief 13 executive officer must given written notice of that fact to the 14 public interest monitor. 15 `(3) If notice is given under subsection (2) for a retrieval warrant, 16 the warrant stops having effect. 17 `Part 3 Emergency authorisations 18 `197ZZC Emergency authorisation--risk of serious personal 19 violence or substantial property damage 20 `(1) A law enforcement officer of a law enforcement agency may 21 apply to a senior officer of the agency for an emergency 22 authorisation for the use of a surveillance device if the law 23 enforcement officer reasonably believes that-- 24 (a) an imminent threat of serious violence to a person or 25 substantial damage to property exists; and 26 (b) the use of a surveillance device is immediately 27 necessary for the purpose of dealing with the threat; and 28 (c) the circumstances are of a degree of seriousness and the 29 matter is of a degree of urgency that the use of a 30 surveillance device is warranted; and 31

s 12 108 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (d) it is not practicable in the circumstances to apply for a 1 surveillance device warrant. 2 `(2) An application may be made orally or in writing. 3 4 Note-- 5 Applications may also be made under section 451.82 `(3) A senior officer may give an emergency authorisation for the 6 use of a surveillance device on an application under 7 subsection (1) if satisfied that there are reasonable grounds for 8 the belief founding the application. 9 `(4) An emergency authorisation given under this section may 10 authorise the law enforcement officer to whom it is given to 11 do anything that a surveillance device warrant may authorise 12 them to do. 13 `197ZZD Application for approval after use of surveillance 14 device under emergency authorisation 15 `(1) Within 2 business days after giving an emergency 16 authorisation, a senior officer must apply to a Supreme Court 17 judge for approval of the exercise of powers under the 18 emergency authorisation. 19 `(2) An application must be sworn and state-- 20 (a) the name of the applicant; and 21 (b) the kind of surveillance device sought to be approved 22 and, if a warrant is sought, the nature and duration of the 23 warrant; and 24 (c) the grounds on which the approval, and warrant, if any, 25 is sought. 26 `(3) The applicant must advise the public interest monitor of the 27 application under arrangements decided by the monitor. 28 `(4) The judge may refuse to consider the application until the 29 applicant gives the judge all the information the judge 30 requires about the application in the way the judge requires. 31 82 Section 451 (Obtaining warrants, orders and authorities, etc., by telephone or similar facility)

s 12 109 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `197ZZE Who may be present at consideration of application 1 `(1) The judge must hear the application for approval of the 2 exercise of powers under the emergency authorisation in the 3 absence of anyone other than the following-- 4 (a) the applicant; 5 (b) a monitor; 6 (c) someone the judge permits to be present; 7 (d) a lawyer representing anyone mentioned in paragraphs 8 (a) to (c). 9 `(2) Also, the judge must hear the application-- 10 (a) in the absence of the person placed under or proposed to 11 be placed under surveillance (the relevant person) or 12 anyone likely to inform the relevant person of the 13 application; and 14 (b) without the relevant person having been informed of the 15 application. 16 `197ZZF Consideration of application 17 `Before deciding an application for approval of the exercise of 18 powers under an emergency authorisation given under 19 section 197ZZC,83 the judge must, in particular, and being 20 mindful of the highly intrusive nature of using a surveillance 21 device, consider the following-- 22 (a) the nature of the risk of serious violence to a person or 23 substantial damage to property; 24 (b) the extent to which issuing a surveillance device warrant 25 would have helped reduce or avoid the risk; 26 (c) the extent to which law enforcement officers could have 27 used alternative methods of investigation to help reduce 28 or avoid the risk; 29 83 Section 197ZZC (Emergency authorisation--risk of serious personal violence or substantial property damage)

s 12 110 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (d) how much the use of alternative methods of 1 investigation could have helped reduce or avoid the risk; 2 (e) how much the use of alternative methods of 3 investigation would have prejudiced the safety of the 4 person or property because of delay or for another 5 reason; 6 (f) whether or not it was practicable in the circumstances to 7 apply for a surveillance device warrant; 8 (g) any submissions made by a monitor. 9 `197ZZG Judge may approve emergency use of powers 10 `(1) After considering an application for approval of an emergency 11 authorisation given under section 197ZZC, the judge may 12 approve the application if satisfied that there were reasonable 13 grounds to believe that-- 14 (a) there was a risk of serious violence to a person or 15 substantial damage to property; and 16 (b) using a surveillance device may have helped reduce the 17 risk; and 18 (c) it was not practicable in the circumstances to apply for a 19 surveillance device warrant. 20 `(2) If the judge approves an application under this section, the 21 judge may issue a surveillance device warrant for the 22 continued use of the surveillance device as if the application 23 were an application for a surveillance device warrant under 24 part 2, division 2.84 25 `(3) If the judge does not approve an application under this 26 section, the judge may-- 27 (a) order that the use of the surveillance device cease; and 28 (b) authorise, on conditions the judge considers appropriate, 29 the retrieval of the surveillance device. 30 84 Part 2 (Warrants), division 2 (Surveillance device warrants)

s 12 111 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(4) In any case, the judge may order that any information 1 obtained from or relating to the exercise of powers under the 2 emergency authorisation or any record of that information be 3 dealt with in the way stated in the order. 4 `197ZZH Admissibility of evidence 5 `If the exercise of powers under an emergency authorisation is 6 approved under section 197ZZG, evidence obtained because 7 of the exercise of those powers is not inadmissible in any 8 proceeding only because the evidence was obtained before the 9 approval. 10 `Part 4 Recognition of corresponding 11 warrants and authorisations 12 `197ZZI Corresponding warrants 13 `(1) A corresponding warrant may be executed in this jurisdiction 14 in accordance with its terms as if it were a surveillance device 15 warrant or retrieval warrant, as the case requires, issued under 16 part 2.85 17 `(2) To remove any doubt it is declared that subsection (1) applies 18 even though the warrant-- 19 (a) could not have been issued on an application made 20 under this chapter; or 21 (b) if issued in this jurisdiction, would have been issued 22 subject to stated conditions applying only in this 23 jurisdiction. 24 `(3) Also, subsection (1) applies even though the powers a law 25 enforcement officer may exercise in the participating 26 jurisdiction differ from powers a law enforcement officer may 27 exercise under a warrant issued under this chapter. 28 85 Part 2 (Warrants)

s 12 112 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `197ZZJ Corresponding emergency authorisations 1 `(1) A corresponding emergency authorisation authorises the use 2 of a surveillance device in accordance with its terms in this 3 jurisdiction, as if it were an emergency authorisation given 4 under part 3.86 5 `(2) Subsection (1) does not apply at any time after a judge orders, 6 under a provision of a corresponding law that corresponds to 7 section 197ZZG(3),87 that the use of a surveillance device 8 under the corresponding emergency authorisation cease. 9 `(3) To remove doubt it is declared that subsection (1) applies even 10 though the corresponding emergency authorisation could not 11 have been issued in this jurisdiction. 12 `Part 5 Compliance and monitoring 13 `Division 1 Restrictions on use, communication 14 and publication of information 15 `197ZZK Definitions for div 1 16 `In this division-- 17 protected information means-- 18 (a) any information obtained from the use of a surveillance 19 device under a warrant, emergency authorisation, 20 corresponding warrant or corresponding emergency 21 authorisation; or 22 (b) any information relating to-- 23 (i) an application for, issue of, variation of, existence 24 of or expiry or revocation of a warrant, emergency 25 86 Part 3 (Emergency authorisations) 87 Section 197ZZG (Judge may approve emergency use of powers)

s 12 113 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 authorisation, corresponding warrant or 1 corresponding emergency authorisation; or 2 (ii) an application for approval of powers exercised 3 under an emergency authorisation; or 4 (iii) an application under a corresponding law for 5 approval of powers exercised under a 6 corresponding emergency authorisation. 7 relevant offence means an offence against a law of this 8 jurisdiction that is-- 9 (a) a three year imprisonment offence; or 10 (b) an offence included in schedule 3. 11 relevant proceeding means any of the following-- 12 (a) the prosecution of a relevant offence; 13 (b) a bail application, or a review of a decision to grant or 14 refuse bail, in relation to a relevant offence; 15 (c) a proceeding with a view to the committal of a person 16 for trial for a relevant offence; 17 (d) an application for the exercise of a power in relation to a 18 relevant offence-- 19 (i) to a court or judicial officer; or 20 (ii) by a law enforcement officer to anyone under this 21 chapter; 22 (e) a proceeding for the confiscation, forfeiture or restraint 23 of property or for the imposition of a pecuniary penalty 24 in connection with a relevant offence; 25 (f) a proceeding under the Confiscation Act or a 26 corresponding law as defined under that Act for the 27 confiscation, forfeiture or restraint of property or for a 28 pecuniary penalty order or a proceeds assessment order 29 in connection with a serious crime related activity as 30 defined under that Act; 31 (g) a proceeding for the protection of a child or 32 intellectually impaired person; 33

s 12 114 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (h) a proceeding about the validity of a warrant, emergency 1 authorisation, corresponding warrant or corresponding 2 emergency authorisation; 3 (i) a disciplinary proceeding against a public officer; 4 (j) a coronial inquest or inquiry if, in the opinion of the 5 coroner, the event that is the subject of the inquest or 6 inquiry may have resulted from the commission of a 7 relevant offence; 8 (k) a proceeding under the Mutual Assistance in Criminal 9 Matters Act 1987 (Cwlth), section 13,88 in relation to a 10 criminal matter that concerns an offence against the 11 laws of the foreign country that made the request 12 resulting in the proceeding for which the maximum 13 penalty is at least 3 years imprisonment or 14 imprisonment for life; 15 (l) a proceeding for the taking of evidence under the 16 Extradition Act 1988 (Cwlth), section 43,89 in so far as 17 the proceeding relates to a relevant offence; 18 (m) a proceeding for the extradition of a person from another 19 jurisdiction to this jurisdiction, in so far as the 20 proceeding relates to a relevant offence; 21 (n) a proceeding under the International War Crimes 22 Tribunals Act 1995 (Cwlth), part 4, division 1;90 23 (o) a proceeding of the International Criminal Court. 24 `197ZZL Prohibition on communication or publication of 25 protected information 26 `(1) A person commits an offence if-- 27 88 Mutual Assistance in Criminal Matters Act 1987 (Cwlth), section 13 (Requests by foreign countries for the taking of evidence or the production of documents) 89 Extradition Act 1988 (Cwlth), section 43 (Evidence for purposes of surrender of persons to Australia) 90 International War Crimes Tribunals Act 1995 (Cwlth), part 4 (Other forms of assistance to a Tribunal), division 1 (Taking evidence etc.)

s 12 115 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) the person intentionally, knowingly or recklessly uses, 1 communicates or publishes any protected information; 2 and 3 (b) the person knows that, or is reckless as to whether, the 4 information is protected information; and 5 (c) the person knows that, or is reckless as to whether, the 6 use, communication or publication of the information is 7 not permitted by this division. 8 Maximum penalty--2 years imprisonment. 9 `(2) A person commits a crime if the person commits an offence 10 against subsection (1) in circumstances in which the person-- 11 (a) intends to endanger the health or safety of any person or 12 prejudice the effective conduct of an investigation into a 13 relevant offence; or 14 (b) knows that, or is reckless as to whether, the disclosure of 15 the information-- 16 (i) endangers or will endanger the health or safety of 17 any person; or 18 (ii) prejudices or will prejudice the effective conduct 19 of an investigation into a relevant offence. 20 Maximum penalty--10 years imprisonment. 21 `(3) Subsections (1) and (2) do not apply to-- 22 (a) the use, communication or publication of any 23 information that-- 24 (i) has been disclosed in proceedings in open court; or 25 (ii) has entered the public domain; or 26 (b) the use or communication of protected information by a 27 person who reasonably believes that the use or 28 communication is necessary to help prevent or reduce 29 the risk of serious violence to a person or substantial 30 damage to property; or 31 (c) the communication to the Director-General, as defined 32 under the Australian Security Intelligence Organisation 33 Act 1979 (Cwlth), of protected information that relates 34

s 12 116 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 or appears to relate to activities prejudicial to security as 1 defined under that Act; or 2 (d) the use or communication of information mentioned in 3 paragraph (c) by an officer of the Australian Security 4 Intelligence Organisation under the Australian Security 5 Intelligence Organisation Act 1979 (Cwlth) in the 6 performance of the officer's official functions; or 7 (e) the use or communication of information to a foreign 8 country or an appropriate authority of a foreign country 9 under the Mutual Assistance in Criminal Matters 10 Act 1987 (Cwlth); or 11 (f) the communication of information with the approval of 12 the chief executive officer of the law enforcement 13 agency communicating the information; or 14 (g) the use or communication of information otherwise 15 authorised under this division. 16 `(4) Subsection (3)(c) and (d) does not apply to the use, 17 communication or publication of protected information in 18 relation to an emergency authorisation or a corresponding 19 emergency authorisation unless the use of powers under that 20 emergency authorisation has been approved under section 21 197ZZG91 or the provisions of a corresponding law that 22 correspond to section 197ZZG. 23 `197ZZM Permitted use of protected information 24 `(1) Protected information may be used, communicated or 25 published if it is necessary to do so for any of the following 26 purposes-- 27 (a) the investigation of a relevant offence or a relevant 28 offence as defined under a corresponding law; 29 (b) the making of a decision whether or not to bring-- 30 (i) a relevant proceeding in relation to a relevant 31 offence; or 32 91 Section 197ZZG (Judge may approve emergency use of powers)

s 12 117 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (ii) a relevant proceeding as defined under a 1 corresponding law in relation to a relevant offence 2 as defined under that law; 3 (c) a relevant proceeding in relation to a relevant offence, or 4 a relevant proceeding as defined under a corresponding 5 law in relation to a relevant offence as defined under that 6 law; 7 (d) an investigation of a complaint against, or the conduct 8 of, a public officer as defined under this chapter or a 9 public officer as defined under a corresponding law; 10 (e) the making of a decision in relation to the appointment, 11 re-appointment, term of appointment, termination or 12 retirement of a person mentioned in paragraph (d); 13 (f) the keeping of records and the making of reports by a 14 law enforcement agency under division 2 or a law 15 enforcement agency, as defined under a corresponding 16 law, under provisions of the corresponding law that 17 correspond to division 2; 18 (g) an inspection by an inspection entity under 19 section 197ZZV or an inspection under a provision of a 20 corresponding law that corresponds to section 21 197ZZV;92 22 (h) an investigation under the law of this jurisdiction or a 23 participating jurisdiction or of the Commonwealth about 24 the privacy of personal information. 25 `(2) Subsections (1)(a), (b) and (c) do not authorise the use, 26 communication or publication of protected information in 27 relation to an emergency authorisation or a corresponding 28 emergency authorisation unless the use of powers under that 29 emergency authorisation has been approved under section 30 197ZZG93 or the provisions of a corresponding law that 31 correspond to section 197ZZG. 32 `(3) However, subsection (2) does not apply to the use or 33 communication of protected information in an application 34 92 Section 197ZZV (Inspection of records) 93 Section 197ZZG (Judge may approve emergency use of powers)

s 12 118 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 under section 197ZZD or the provisions of a corresponding 1 law that corresponds to section 197ZZD to obtain the approval 2 under section 197ZZG or the provisions of the corresponding 3 law that correspond to section 197ZZG. 4 `(4) A reference in subsection (1) to a relevant offence, whether of 5 this jurisdiction or another jurisdiction, is a reference to any 6 relevant offence of the relevant jurisdiction, whether or not the 7 offence in relation to which the relevant warrant or emergency 8 authorisation was issued or given. 9 `197ZZN Dealing with records obtained by use of 10 surveillance devices 11 `(1) The chief executive officer of a law enforcement agency-- 12 (a) must ensure that every record or report obtained by use 13 of a surveillance device by a law enforcement officer of 14 the agency under a warrant, emergency authorisation, 15 corresponding warrant or corresponding emergency 16 authorisation is kept in a secure place that is not 17 accessible to people who are not entitled to deal with the 18 record or report; and 19 (b) must destroy or cause to be destroyed any record or 20 report mentioned in paragraph (a) if satisfied it is not 21 likely to be required in connection with a purpose 22 mentioned in section 197ZZL(3) or 197ZZM(1).94 23 `(2) Subsection (1) does not apply to a record or report that is 24 received into evidence in legal proceedings or disciplinary 25 proceedings. 26 `(3) Subsection (1) does not prevent information or other matter 27 relevant to an offence of which someone has been convicted 28 being preserved for any period or indefinitely if there is any 29 possibility that an issue about the conviction may arise. 30 94 Section 197ZZL (Prohibition on communication or publication of protected information) or 197ZZM (Permitted use of protected information)

s 12 119 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `197ZZO Protection of surveillance device technologies and 1 methods 2 `(1) Despite the Recording of Evidence Act 1962, a transcript of a 3 proceeding under this chapter for an application or order or 4 approval must not be made. 5 `(2) A person must not publish a report of a proceeding under this 6 chapter for an application or order or approval. 7 Maximum penalty--85 penalty units or 1 year's 8 imprisonment. 9 `(3) Subsection (4) applies to a proceeding before a court, a 10 tribunal or a commission of inquiry under the Commissions of 11 Inquiry Act 1950. 12 `(4) Without limiting section 454,95 if the person conducting or 13 presiding over a proceeding is satisfied that publication of any 14 information disclosed in the proceeding could reasonably be 15 expected to reveal details of surveillance device technology or 16 methods of installation, use or retrieval of surveillance 17 devices, the person must make any orders prohibiting or 18 restricting publication of the information that the person 19 considers necessary to ensure that those details are not 20 revealed. 21 `(5) Subsection (4) does not apply to the extent that the person 22 conducting or presiding over the proceeding considers that the 23 interests of justice require otherwise. 24 `197ZZP Protected information in the custody of a court 25 `A person is not entitled to search any protected information 26 in the custody of a court unless a Supreme Court judge 27 otherwise orders in the interests of justice. 28 95 Section 454 (Protection of methodologies)

s 12 120 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Division 2 Reporting and record keeping 1 `197ZZQ Report to judge or magistrate 2 `(1) A law enforcement officer to whom a warrant is issued, or 3 who is primarily responsible for executing a warrant issued, 4 under this chapter must make a report as required under this 5 section. 6 `(2) The report must be made to the judge or magistrate who 7 issued the warrant or to the public interest monitor as stated in 8 the warrant. 9 `(3) The report must be made-- 10 (a) within the time stated in the warrant; or 11 (b) if the warrant is revoked before the end of the time 12 stated in the warrant--as soon as practicable after the 13 warrant is revoked and within the time stated in the 14 warrant. 15 `(4) For a surveillance device warrant, the report must-- 16 (a) state whether the warrant was executed; and 17 (b) if so-- 18 (i) state the name of each person involved in the 19 execution of the warrant; and 20 (ii) state the kind of surveillance device used; and 21 (iii) state the period when the device was used; and 22 (iv) state the name, if known, of any person whose 23 conversations or activities were overheard, 24 recorded, monitored, listened to or observed by the 25 use of the device; and 26 (v) state the name, if known, of any person whose 27 geographical location was found by the use of a 28 tracking device; and 29 (vi) give details of any premises on which the device 30 was installed or any place where the device was 31 used; and 32

s 12 121 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (vii) give details of any object in or on which the device 1 was installed or any premises where the object was 2 located when the device was installed; and 3 (viii) give details of the benefit to the investigation of the 4 use of the device and of the general use made or to 5 be made of any evidence or information obtained 6 by the use of the device; and 7 (ix) give details of the compliance with the conditions, 8 if any, to which the warrant was subject; and 9 (c) if the warrant was extended or varied, state-- 10 (i) the number of extensions or variations; and 11 (ii) the reasons for them; and 12 (d) if written notice was given to the public interest monitor 13 under section 197ZU,96 state the reasons for the notice. 14 `(5) For a retrieval warrant, the report must-- 15 (a) give details of any premises entered, anything opened 16 and any object removed and replaced under the warrant; 17 and 18 (b) state whether the surveillance device was retrieved 19 under the warrant; and 20 (c) if the device was not retrieved, state the reason that the 21 device was not retrieved; and 22 (d) give details of the compliance with the conditions, if 23 any, to which the warrant was subject; and 24 (e) if written notice was given to the public interest monitor 25 under section 197ZZB,97 state the reasons for the notice. 26 `(6) If a report is given to the public interest monitor, the monitor 27 may refer the report to a judge or magistrate for the purpose of 28 an order being made under subsection (7). 29 `(7) On receiving a report, the judge or magistrate may order that 30 any information obtained from or relating to the execution of 31 96 Section 197ZU (Discontinuance of use of surveillance device under warrant) 97 Section 197ZZB (Discontinuance of retrieval warrant)

s 12 122 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 the warrant or any record of that information be dealt with in 1 the way stated in the order. 2 `(8) The function imposed on a law enforcement officer by 3 subsection (1) may be performed by the person for the time 4 being occupying or acting in the office or position held by the 5 law enforcement officer. 6 7 Note-- 8 Provision for a statutory function to be performed by a person acting in 9 an office is also made by the Acts Interpretation Act 1954, section 23(2). `197ZZR Annual reports 10 `(1) The chief executive officer of a law enforcement agency must 11 make a report under subsection (4) that includes the following 12 information for each financial year-- 13 (a) the number of applications for warrants by and the 14 number of warrants issued to law enforcement officers 15 of the agency during that year; 16 (b) the number of applications for emergency authorisations 17 by and the number of emergency authorisations given to 18 law enforcement officers of the agency during that year; 19 (c) the number of remote applications for warrants by law 20 enforcement officers of the agency during that year; 21 (d) the number of applications for warrants or emergency 22 authorisations by law enforcement officers of the agency 23 that were refused during that year, and the reasons for 24 refusal, if known; 25 (e) the number of applications for variations or extensions 26 of warrants by law enforcement officers of the agency 27 during that year, the number of variations or extensions 28 granted or refused and, if refused, the reasons for 29 refusal, if known; 30 (f) the number of arrests made by law enforcement officers 31 of the agency during that year on the basis, entirely or 32 partly, of information obtained by the use of a 33 surveillance device under a warrant or emergency 34 authorisation; 35

s 12 123 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (g) the number of prosecutions that were started in this 1 jurisdiction during that year in which information 2 obtained by the use of a surveillance device under a 3 warrant or emergency authorisation was given in 4 evidence and the number of those prosecutions in which 5 a person was found guilty; 6 (h) any other information about the use of surveillance 7 devices and the administration of this chapter that the 8 Minister considers appropriate. 9 `(2) The information mentioned in subsection (1)(a) and (b) must 10 be presented in a way that identifies the number of warrants 11 issued and emergency authorisations given for each different 12 kind of surveillance device. 13 `(3) The report must not contain information that-- 14 (a) discloses or may lead to the disclosure of the identity of 15 any person who has been, is being or is to be 16 investigated; or 17 (b) indicates a particular investigation has been, is being or 18 is to be conducted. 19 `(4) The report must be given as soon as practicable after the end 20 of each financial year, and within 3 months after the end of the 21 financial year, to-- 22 (a) for the police service--the Minister; or 23 (b) for the CMC--the parliamentary committee 24 chairperson. 25 `(5) The Minister or parliamentary committee chairperson must 26 cause a copy of the report to be tabled in the Legislative 27 Assembly within 14 sitting days after the Minister or 28 chairperson receives the report. 29 30 Note-- 31 The Parliament of Queensland Act 2001, section 59 makes provision for 32 the tabling of reports when the Assembly is not sitting.

s 12 124 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `197ZZS Keeping documents connected with warrants and 1 emergency authorisations 2 `The chief executive officer of a law enforcement agency must 3 cause the following or a copy of the following to be kept-- 4 (a) each warrant issued to a law enforcement officer of the 5 agency; 6 (b) each notice given to the chief executive officer under 7 section 197ZT(3)98 of revocation of a warrant; 8 (c) each application made by a law enforcement officer of 9 the agency for an emergency authorisation; 10 (d) each emergency authorisation given to a law 11 enforcement officer of the agency; 12 (e) each application made by a law enforcement officer of 13 the agency for-- 14 (i) a warrant; or 15 (ii) variation, extension or revocation of a warrant; or 16 (iii) approval of the exercise of powers under an 17 emergency authorisation; 18 (f) each report made under section 197ZZQ;99 19 (g) each certificate issued by a senior officer of the agency 20 under section 197ZZX.100 21 `197ZZT Other records to be kept 22 `The chief executive officer of a law enforcement agency must 23 cause the following to be kept-- 24 (a) a statement as to whether each application made by a 25 law enforcement officer of the agency for a warrant, or 26 variation, extension or revocation of a warrant, was 27 granted, refused or withdrawn; 28 98 Section 197ZT (Revocation of surveillance device warrant) 99 Section 197ZZQ (Report to judge or magistrate) 100 Section 197ZZX (Evidentiary certificates)

s 12 125 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (b) a statement as to whether each application made by a 1 law enforcement officer of the agency for an emergency 2 authorisation, or for approval of powers exercised under 3 an emergency authorisation, was granted, refused or 4 withdrawn; 5 (c) details of each use by the agency, or by a law 6 enforcement officer of the agency, of information 7 obtained by the use of a surveillance device by a law 8 enforcement officer of the agency; 9 (d) details of each communication by a law enforcement 10 officer of the agency to a person other than a law 11 enforcement officer of the agency of information 12 obtained by the use of a surveillance device by a law 13 enforcement officer of the agency; 14 (e) details of each occasion when, to the knowledge of a law 15 enforcement officer of the agency, information obtained 16 by the use of a surveillance device by a law enforcement 17 officer of the agency was given in evidence in a relevant 18 proceeding as defined in section 197ZZK;101 19 (f) details of the destruction of records or reports under 20 section 197ZZN(1)(b).102 21 `197ZZU Register of warrants and emergency authorisations 22 `(1) This section applies only to the police service and the CMC. 23 `(2) The chief executive officer must cause a register of warrants 24 and emergency authorisations to be kept. 25 `(3) The register must be or form part of the register of covert acts 26 kept under chapter 11, part 2.103 27 101 Section 197ZZK (Definitions for div 1) 102 Section 197ZZN (Dealing with records obtained by use of surveillance devices) 103 Chapter 11 (Administration), part 2 (Registers)

s 12 126 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Division 3 Inspections 1 `197ZZV Inspection of records 2 `(1) The inspection entity for a law enforcement agency must, 3 from time to time, inspect the records of the law enforcement 4 agency to decide the extent of compliance with this chapter by 5 the agency and law enforcement officers of the agency. 6 `(2) For the purpose of an inspection, the inspection entity-- 7 (a) after notifying the chief executive officer of the agency, 8 may enter at any reasonable time premises occupied by 9 the agency; and 10 (b) is entitled to have full and free access at all reasonable 11 times to all records of the agency that are relevant to the 12 inspection; and 13 (c) may require a member of staff of the agency to give the 14 inspection entity any information that the inspection 15 entity considers necessary, being information that is in 16 the member's possession, or to which the member has 17 access, and that is relevant to the inspection. 18 `(3) The chief executive officer must ensure that members of staff 19 of the agency give the inspection entity any help the 20 inspection entity reasonably requires to enable the inspection 21 entity to perform functions under this section. 22 `(4) For applying this section to the parliamentary commissioner 23 as inspection entity for the CMC, this section does not limit 24 the parliamentary commissioner's powers under the Crime 25 and Misconduct Act 2001, chapter 6, part 4, division 4.104 26 104 Crime and Misconduct Act 2001, chapter 6 (Administration), part 4 (Parliamentary crime and misconduct commissioner), division 4 (Powers)

s 12 127 s 12 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `197ZZW Report on inspection 1 `(1) The inspection entity of a law enforcement agency must make 2 a written report at 6 monthly intervals on the results of each 3 inspection under section 197ZZV.105 4 `(2) The report may include comments or observations about the 5 use and effectiveness of surveillance device warrants. 6 `(3) The inspection entity must give the report to-- 7 (a) if the inspection entity is the public interest 8 monitor--the Minister; or 9 (b) if the inspection entity is the parliamentary 10 commissioner--the parliamentary committee 11 chairperson. 12 `(4) The report must not contain information that-- 13 (a) discloses or may lead to the disclosure of the identity of 14 any person who has been, is being or is to be 15 investigated; or 16 (b) indicates a particular investigation has been, is being or 17 is to be conducted. 18 `(5) The Minister or the parliamentary committee chairperson 19 must cause a copy of the report to be tabled in the Legislative 20 Assembly within 14 sitting days after receiving the report. 21 22 Note-- 23 The Parliament of Queensland Act 2001, section 59 makes provision for 24 the tabling of reports when the Assembly is not sitting. `Division 4 General 25 `197ZZX Evidentiary certificates 26 `(1) A senior officer of a law enforcement agency may issue a 27 written certificate signed by the officer stating any facts the 28 officer or person considers relevant about-- 29 105 Section 197ZZV (Inspection of records)

s 13 128 s 13 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) anything done by a law enforcement officer of the 1 agency, or by a person helping or providing technical 2 expertise to him or her, in connection with the execution 3 of a warrant or in accordance with an emergency 4 authorisation; or 5 (b) anything done by a law enforcement officer of the 6 agency in connection with-- 7 (i) the communication by a person to another person; 8 or 9 (ii) the making use of; or 10 (iii) the making of a record of; or 11 (iv) the custody of a record of; 12 information obtained by the use of a surveillance device 13 under a warrant, emergency authorisation, 14 corresponding warrant or corresponding emergency 15 authorisation. 16 `(2) A document purporting to be a certificate issued under 17 subsection (1) or under a provision of a corresponding law 18 that corresponds to subsection (1) is admissible in any 19 proceeding as evidence of the matters stated in it. 20 `(3) Subsection (2) does not apply to a certificate to the extent that 21 the certificate states facts about anything done in accordance 22 with an emergency authorisation or corresponding emergency 23 authorisation unless the use of powers under that authorisation 24 has been approved under section 197ZZG106 or under a 25 provision of a corresponding law that corresponds to section 26 197ZZG.'. 27 Clause 13 Amendment of s 373 (Assistance in exercising powers) 28 (1) Section 373(1), example 1, `surveillance warrant'-- 29 omit, insert-- 30 `surveillance device warrant'. 31 106 Section 197ZZG (Judge may approve emergency use of powers)

s 14 129 s 16 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (2) Section 373-- 1 insert-- 2 `(6) A reference in this section to a police officer and the police 3 service includes a reference to a law enforcement agency and 4 a law enforcement officer when a person is performing the 5 functions of a law enforcement officer under chapter 5A or 6 5C.107'. 7 Clause 14 Amendment of s 375 (Power to use force--exercise of 8 certain powers) 9 (1) Section 375(1), after `police officer'-- 10 insert-- 11 `or law enforcement officer'. 12 (2) Section 375(1)(a), `surveillance warrant'-- 13 omit, insert-- 14 `surveillance device warrant'. 15 Clause 15 Replacement of ch 11, pt 2, div 2, hdg 16 Chapter 11, part 2, division 2, heading-- 17 omit, insert-- 18 `Division 2 Register of covert acts 19 `Subdivision 1 Preliminary'. 20 Clause 16 Amendment of s 400 (Application of div 2) 21 Section 400(2)-- 22 omit. 23 107 Chapter 5A (Controlled operations) or 5C (Surveillance device warrants)

s 17 130 s 19 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Clause 17 Insertion of new ch 11, pt 2, div 2, sdiv 2, hdg and s 402A 1 Before section 403-- 2 insert-- 3 `Subdivision 2 Covert acts under chapters 4 and 4 4A 5 `402A Application of sdiv 2 6 `This subdivision applies only in relation to the following 7 covert acts-- 8 (a) applications for a monitoring order or a suspension 9 order; 10 (b) applications for a covert search warrant or an extension 11 of a covert search warrant; 12 (c) the exercise of powers under a monitoring order, a 13 suspension order or a covert search warrant.'. 14 Clause 18 Amendment of s 403 (Information to be recorded in 15 register) 16 (1) Section 403, heading, at the end-- 17 insert-- 18 `for sdiv 2'. 19 (2) Section 403(3), after `other covert acts'-- 20 insert-- 21 `to which this subdivision applies'. 22 Clause 19 Insertion of new ch 11, pt 2, div 2, sdiv 3 and sdiv 4, hdg 23 Chapter 11, part 2, before section 404-- 24 insert-- 25

s 19 131 s 19 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Subdivision 3 Covert acts under chapters 5A and 1 5C 2 `403A Application of sdiv 3 3 `This subdivision applies only in relation to the following 4 covert acts-- 5 (a) applications for surveillance device warrants or 6 extensions or variations of surveillance device warrants; 7 (b) applications for retrieval warrants; 8 (c) revocations of surveillance device warrants or retrieval 9 warrants; 10 (d) applications for emergency authorisations or for 11 approval of the use of a surveillance device under an 12 emergency authorisation; 13 (e) applications for authority for a controlled operation or 14 for variation of an authority for a controlled operation; 15 (f) the exercise of powers under this Act under a warrant, 16 emergency authorisation or authority mentioned in 17 paragraph (a), (b), (d) or (e); or 18 (g) the disclosure of information under section 197ZZL or 19 197ZZM. 20 `403B Information to be included in register for 21 surveillance device warrants and retrieval warrants 22 `The following information about surveillance device 23 warrants and retrieval warrants must be recorded in the 24 register-- 25 (a) the date and time of issue of the warrant; 26 (b) the name of the judge or magistrate who issued the 27 warrant; 28 (c) the name of the law enforcement officer stated in the 29 warrant as the person primarily responsible for 30 executing it; 31

s 19 132 s 19 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (d) the relevant offence for which the warrant was issued; 1 (e) the period when the warrant is in force; 2 (f) details of any variation or extension of the warrant; 3 (g) whether the surveillance device was used in a 4 participating jurisdiction; 5 (h) information prescribed under the responsibilities code 6 about the exercise of powers under the warrant. 7 `403C Information to be included in register for emergency 8 authorisations 9 `The following information about emergency authorisations 10 must be recorded in the register-- 11 (a) the date and time the emergency authorisation was 12 given; 13 (b) the name of the senior officer who gave the emergency 14 authorisation; 15 (c) the name of the law enforcement officer to whom the 16 emergency authorisation was given; 17 (d) the relevant offence for which the emergency 18 authorisation was given; 19 (e) the date on which the application for approval of powers 20 exercised under the emergency authorisation was made; 21 (f) information prescribed under the responsibilities code 22 about the exercise of powers under the emergency 23 authorisation. 24 `403D Information to be included in register for controlled 25 operations 26 `(1) The following information about each application made under 27 chapter 5A by a law enforcement officer of a law enforcement 28 agency, including for variation of authority, must be recorded 29 in the register-- 30 (a) the date of the application; 31

s 19 133 s 19 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (b) whether the application was formal or urgent; 1 (c) whether the application was granted, refused or 2 withdrawn; 3 (d) if the application was refused or withdrawn--the date 4 and time of the refusal or withdrawal. 5 `(2) The following information about each authority granted under 6 chapter 5A to a law enforcement officer of a law enforcement 7 agency must be recorded in the register-- 8 (a) the date and time the authority was granted; 9 (b) whether the authority was formal or urgent; 10 (c) the name and rank or position of the person who granted 11 the authority; 12 (d) each relevant offence for which controlled conduct 13 under the authority was to be engaged in; 14 (e) the period of validity of the authority; 15 (f) if the authority was cancelled, the date and time of 16 cancellation; 17 (g) the date and time the authorised operation began and the 18 date of completion of the operation; 19 (h) the date on which the principal law enforcement officer 20 for the operation made a report on the operation under 21 section 178;108 22 (i) if the authorised operation involved illicit goods, to the 23 extent known-- 24 (i) the nature and quantity of the illicit goods; and 25 (ii) the route through which the illicit goods passed in 26 the course of the operation; 27 (j) details of any loss of or serious damage to property, or 28 any personal injuries, happening in the course of or as a 29 direct result of the operation; 30 108 Section 178 (Principal law enforcement officer's reports)

s 20 134 s 21 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (k) whether the operation was undertaken in a participating 1 jurisdiction; 2 (l) information prescribed under the responsibilities code 3 about the exercise of powers under the authority. 4 `(3) The following information about each variation of authority 5 under chapter 5A must be recorded in the register-- 6 (a) the date and time the variation was made; 7 (b) whether the variation was formal or urgent; 8 (c) the name and rank or position of the person who made 9 the variation. 10 `Subdivision 4 General'. 11 Clause 20 Amendment of s 404 (Who must record information in 12 register) 13 Section 404, heading, after `information'-- 14 insert-- 15 `relating to covert search warrants'. 16 Clause 21 Amendment of s 409 (Other authorised inspections) 17 (1) Section 409(1), `an entity'-- 18 omit, insert-- 19 `a law enforcement agency'. 20 (2) Section 409(1), `entity's'-- 21 omit, insert-- 22 `law enforcement agency's'. 23 (3) Section 409(2)(c)-- 24 omit, insert-- 25 `(c) for preparing an application for an approval, 26 authorisation, order or warrant of a kind to which this 27 division applies; or'. 28

s 22 135 s 24 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Clause 22 Amendment of s 411 (Application of div 3) 1 Section 411(2), definition enforcement act, from `surveillance 2 warrant'-- 3 omit, insert-- 4 `covert search warrant, surveillance device warrant, retrieval 5 warrant or emergency authorisation.'. 6 Clause 23 Amendment of s 419 (Correcting registers) 7 Section 419(1), after `section 403'-- 8 omit, insert-- 9 `, 403B, 403C, 403D'. 10 Clause 24 Amendment of s 451 (Obtaining warrants, orders and 11 authorities, etc., by telephone or similar facility) 12 (1) Section 451, after `police officer'-- 13 insert-- 14 `or law enforcement officer'. 15 (2) Section 451(2), after `radio'-- 16 insert-- 17 `, email'. 18 (3) Section 451(2)(b), after `police officer's'-- 19 insert-- 20 `or law enforcement officer's'. 21 (4) Section 451(5)-- 22 renumber as section 451(6). 23 (5) Section 451(4)-- 24 omit, insert-- 25 `(4) If, apart from this section, the application is required to be 26 sworn, the police officer or law enforcement officer may 27 apply for the prescribed authority before the application is 28 sworn. 29

s 25 136 s 25 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(5) If transmission by fax is available, the person applying must 1 transmit a copy of the application to the person who is to 2 decide the application.'. 3 Clause 25 Amendment of s 452 (Steps after issue of prescribed 4 authority) 5 (1) Section 452(1)-- 6 omit, insert-- 7 `(1) After issuing the prescribed authority, the issuer must-- 8 (a) immediately fax a copy to the police officer or law 9 enforcement officer if it is reasonably practicable to fax 10 the copy; and 11 (b) for a prescribed authority issued on a remote application 12 made under chapter 5C--immediately record the details 13 mentioned in subsection (2)(a)(i) and (ii) in a register 14 kept by the issuer for the purpose.'. 15 (2) Section 452(2), (3) and (4), after `police officer'-- 16 insert-- 17 `or law enforcement officer'. 18 (3) Section 452(4), `, at the first reasonable opportunity,'-- 19 omit. 20 (4) Section 452(5)-- 21 renumber as section 452(7). 22 (5) Section 452-- 23 insert-- 24 `(5) The police officer or law enforcement officer must send the 25 documents mentioned in subsection (4) to the issuer-- 26 (a) generally--at the first reasonable opportunity; or 27 (b) for a remote application made under 28 chapter 5C--within 72 hours. 29 `(6) To remove doubt, it is declared that the prescribed authority 30 form, properly completed by the police officer or law 31

s 26 137 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 enforcement officer, is, and is taken always to have been, of 1 the same effect as the prescribed authority signed by the 2 issuer.'. 3 Clause 26 Amendment of s 453 (Presumption about exercise of 4 powers under prescribed authority) 5 Section 453, after `police officer'-- 6 insert-- 7 `or law enforcement officer'. 8 Clause 27 Amendment of s 454 (Protection of methodologies) 9 Section 454(4)-- 10 insert-- 11 `Note-- 12 13 For provisions about the protection of surveillance device technologies 14 and methods under chapter 5C, see section 197ZZO.'. Clause 28 Insertion of new ch 13, pt 5 15 Chapter 13-- 16 insert-- 17 `Part 5 Transitional provisions for 18 Cross-Border Law Enforcement 19 Legislation Amendment Act 20 2005 21 `Division 1 Preliminary 22 `484 Definitions for pt 5 23 `In this part-- 24 amendment Act means the Cross-Border Law Enforcement 25 Legislation Amendment Act 2005. 26

s 28 138 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 commencement day means the day on which section 12109 of 1 the amendment Act commences. 2 former, of a provision mentioned in this part, means the 3 provision mentioned is a provision of the pre-amended Act. 4 new, of a provision mentioned in this part, means the 5 provision mentioned is a provision of the post-amended Act. 6 pre-amended Act means this Act as in force immediately 7 before the commencement day. 8 post-amended Act means this Act as in force from the 9 commencement day. 10 `Division 2 Controlled activities 11 `485 Transitional provision for controlled activities 12 `(1) A controlled activity authorised under former section 190 110 13 but not completed before the commencement day continues in 14 force as a controlled activity authorised under new 15 section 135.111 16 `(2) New sections 136, 137 and 138112 apply in relation to a 17 controlled activity continued in force under subsection (1). 18 `Division 3 Controlled operations 19 `Subdivision 1 Definitions 20 `486 Definitions for div 3 21 `In this division-- 22 109 Section 12 (Replacement of ch 5) of the amendment Act 110 Former section 190 (Authorised controlled activities) 111 New section 135 (Authorised controlled activities) 112 New sections 136 (Protection from liability), 137 (Admissibility of evidence obtained through controlled activities) and 138 (Evidentiary provision)

s 28 139 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 CMC officer means-- 1 (a) a commission officer; or 2 (b) an officer or employee of a declared agency engaged by 3 the CMC for a particular controlled operation. 4 existing CMC approving officer means an approving officer 5 for the CMC mentioned in former section 173(2)(b).113 6 existing CMC civilian covert operative means a person other 7 than a CMC officer or a police officer who is named in an 8 existing CMC controlled operation approval or an existing 9 CMC controlled operation urgent approval as a covert 10 operative for the existing CMC controlled operation. 11 existing CMC controlled operation approval means an 12 approval given by an existing CMC approving officer under 13 former section 177114 for a controlled operation in relation to a 14 serious indictable offence or organised crime. 15 existing CMC controlled operation urgent approval means 16 an approval given by an existing CMC approving officer 17 under former section 175 or 176115 for a controlled operation 18 in relation to a serious indictable offence or organised crime. 19 existing CMC covert operative means a CMC officer or 20 police officer named in an existing CMC controlled operation 21 approval or an existing CMC controlled operation urgent 22 approval as a covert operative for the existing CMC controlled 23 operation. 24 existing police service approving officer means an approving 25 officer for the police service mentioned in former 26 section 173(2)(a). 27 existing police service civilian covert operative means a 28 person who is not a police officer and is named in an existing 29 police service controlled operation approval or an existing 30 police service controlled operation urgent approval as a covert 31 113 Former section 173 (Application for approval) 114 Former section 177 (Consideration and approval of application) 115 Former section 175 (Certain CMC controlled operations) or 176 (Procedure in urgent circumstances other than if s 175 applies)

s 28 140 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 operative for the controlled operation to which the approval 1 relates. 2 existing police service controlled operation approval means 3 an approval for a controlled operation given under former 4 section 177 by an existing police service approving officer. 5 existing police service controlled operation urgent approval 6 means an approval for a controlled operation given under 7 former section 176 by an existing police service approving 8 officer. 9 existing police service covert operative means a police officer 10 who is named in an existing police service controlled 11 operation approval or an existing police service controlled 12 operation urgent approval as a covert operative for the 13 controlled operation to which the approval relates. 14 `Subdivision 2 Controlled operations committee 15 `487 Transitional provisions about committee membership 16 `(1) A person who held office as a member of the committee under 17 former section 167(2)(b),116 whether as the chief executive 18 officer of an entity or as the chief executive officer's nominee, 19 continues to hold office as a member of the committee under 20 new section 143(2)(b). 21 `(2) The independent member of the committee under former 22 section 168117 continues to be the independent member under 23 new section 144 without further appointment. 24 `(3) An acting independent member of the committee under 25 former section 169118 continues to be an acting independent 26 member under new section 145 without further appointment. 27 116 Former section 167 (Establishment of controlled operations committee) 117 Former section 168 (Independent member) 118 Former section 169 (Acting independent member)

s 28 141 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `488 Transitional provisions about committee business 1 `(1) A matter referred to the committee by an approving officer 2 under former chapter 5, part 2, division 3,119 but not decided 3 before the commencement day, may continue to be considered 4 by the committee under new chapter 5A, part 2, division 2.120 5 `(2) If, after the commencement day, the period of the first annual 6 report required to be prepared under new section 180121 7 includes any period before the commencement day, the annual 8 report prepared under new section 180 must include the 9 matter required to be included under that section in relation to 10 the committee's activities before the commencement day. 11 `Subdivision 3 Controlled operation approvals 12 `489 Transitional provisions for police service controlled 13 operation approvals 14 `(1) An existing police service controlled operation approval that 15 was in force immediately before the commencement day 16 continues in force from that day in accordance with its terms 17 as if it were a formal authority given under new section 156.122 18 `(2) An existing police service controlled operation urgent 19 approval that was in force immediately before the 20 commencement day continues in force from that day in 21 accordance with its terms as if it were an urgent authority 22 given under new section 156. 23 119 Former chapter 5 (Controlled operations and controlled activities), part 2 (Controlled operations), division 2 (Committee's functions and business) 120 New chapter 5A (Controlled operations), part 2 (Controlled operations committee), division 2 (Functions, business and recommendations) 121 New section 180 (Annual report by report entity) 122 New section 156 (Form of authority)

s 28 142 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `490 Transitional provisions for CMC controlled operation 1 approvals 2 `(1) An existing CMC controlled operation approval that was in 3 force immediately before the commencement day and relates 4 to a serious indictable offence or suspected organised crime 5 continues in force from that day in accordance with its terms 6 as if it were a formal authority given under new section 156 in 7 relation to a relevant offence that is major crime as defined 8 under the Crime and Misconduct Act 2001. 9 `(2) An existing CMC controlled operation urgent approval that 10 was in force immediately before the commencement day and 11 relates to a serious indictable offence or suspected organised 12 crime continues in force from that day in accordance with its 13 terms as if it were an urgent authority given under new section 14 156 in relation to a relevant offence that is major crime as 15 defined under the Crime and Misconduct Act 2001. 16 `491 Transitional provision for pre-commencement day 17 recommendations 18 `A recommendation made by the committee under former 19 section 172123 continues in force from the commencement day 20 as if it were a recommendation made by the committee under 21 new section 148. 22 `Subdivision 4 Covert operatives 23 `492 Transitional provisions for police service covert 24 operatives 25 `(1) An existing police service civilian covert operative named in 26 an existing police service controlled operation approval or an 27 existing police service controlled operation urgent approval 28 continued in force under section 489 as a formal authority or 29 an urgent authority is taken, from the commencement day, to 30 be a civilian participant. 31 123 Former section 172 (Committee's recommendations)

s 28 143 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(2) An existing police service covert operative named in an 1 existing police service controlled operation approval or an 2 existing police service controlled operation urgent approval 3 continued in force under section 489 as a formal authority or 4 an urgent authority is taken, from the commencement day, to 5 be an authorised participant. 6 `493 Transitional provisions for CMC covert operatives 7 `(1) An existing CMC civilian covert operative named in an 8 existing CMC controlled operation approval or an existing 9 CMC controlled operation urgent approval continued in force 10 under section 490 as a formal authority or an urgent authority 11 is taken, from the commencement day, to be a civilian 12 participant. 13 `(2) An existing CMC covert operative named in an existing CMC 14 controlled operation approval or an existing CMC controlled 15 operation urgent approval continued in force under 16 section 490 as a formal authority or an urgent authority is 17 taken, from the commencement day, to be an authorised 18 participant. 19 `Division 4 Assumed identities 20 `494 Authorities for identity documents that are birth 21 certificates 22 `(1) An authority given under former section 186 or 187 to create a 23 birth certificate to help conceal the identity of a covert 24 operative for an existing CMC controlled operation or an 25 existing police service controlled operation continues in force 26 as a birth certificate approval given under new section 197A. 27 `(2) A birth certificate created in accordance with an authority 28 continued in force under subsection (1) continues in force as if 29 it were a birth certificate created under new section 197C and 30 may continue to be used for the purpose for which it was 31 created. 32

s 28 144 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(3) If, under new section 196, the chief executive officer cancels 1 an authority mentioned in subsection (1), new section 197D 2 applies to a birth certificate created under former section 186 3 or 187 in the same way as it applies to a birth certificate 4 created under new section 197C. 5 `495 Identity documents other than birth certificates 6 `(1) An identity document created in accordance with former 7 section 189-- 8 (a) continues in force as evidence of identity produced 9 under a request under new section 197G; and 10 (b) is taken to have been issued under an authority given 11 under new section 193; and 12 (c) may, if the purpose for which the identity document was 13 created has not ended, continue to be used for the 14 purpose. 15 `(2) If, under new section 196, the chief executive officer of the 16 law enforcement agency for whom the identity document is 17 produced cancels an authority mentioned in subsection (1)(b), 18 the chief executive officer must direct the issuing agency to 19 cancel the evidence of identity under new section 197J. 20 `(3) This section applies to an identity document created for the 21 CMC under former section 189 to the extent to which 22 continued use of the document relates to a controlled 23 operation under a controlled operation approval continued in 24 force under section 490. 25 `(4) In this section-- 26 identity document means a document, other than a birth 27 certificate, created under former section 189. 28

s 28 145 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `Division 5 Surveillance devices 1 `Subdivision 1 Definitions 2 `496 Definitions for div 5 3 `In this division-- 4 existing CMC surveillance warrant means a warrant issued 5 under the Crime and Misconduct Act 2001, section 124 as in 6 force immediately before the commencement day, in relation 7 to major crime as defined under that Act. 8 existing CMC emergency authorisation means an 9 authorisation given under the Crime and Misconduct Act 10 2001, section 130 as in force immediately before the 11 commencement day, in relation to major crime as defined 12 under that Act. 13 existing police service surveillance warrant means a warrant 14 issued under former section 127. 15 existing police service emergency authorisation means an 16 authorisation given under former section 132. 17 `Subdivision 2 Transitional provisions for police 18 service surveillance devices 19 `497 Transitional provisions for existing police service 20 surveillance devices 21 `(1) An existing police service surveillance warrant that was in 22 force immediately before the commencement day continues in 23 force from that day in accordance with its terms as if it were a 24 surveillance device warrant issued under new section 25 197ZP124 to a police officer under new chapter 5C.125 26 124 New section 197ZP (Deciding application) 125 New chapter 5C (Surveillance device warrants)

s 28 146 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(2) An existing police service emergency authorisation that was 1 in force immediately before the commencement day continues 2 in force from that day in accordance with its terms as if it were 3 an emergency authorisation given under new section 4 197ZZC126 to a police officer or member of the police service 5 performing duties under new chapter 5C. 6 `(3) New sections 197ZZD127 to 197ZZH128 apply to an 7 authorisation mentioned in subsection (2). 8 `(4) A warrant or emergency authorisation may be issued or given 9 under this Act as in force from the commencement day in 10 relation to an offence that was committed before the 11 commencement day. 12 `498 Transitional provisions for protection of records 13 `(1) New section 197ZZO(1) and (2) apply to a relevant 129 14 proceeding within the meaning of former section 145130 in 15 relation to an existing police service surveillance warrant or 16 an existing police service emergency authorisation as if the 17 proceeding were a proceeding under new chapter 5C. 18 `(2) New section 197ZZP131 applies to information in the custody 19 of a court in relation to a relevant proceeding within the 20 meaning of former section 145 as if the information were 21 protected information. 22 126 New section 197ZZC (Emergency authorisation--risk of serious personal violence or substantial property damage) 127 New section 197ZZD (Application for approval after use of surveillance device under emergency authorisation) 128 New section 197ZZH (Admissibility of evidence) 129 New section 197ZZO (Protection of surveillance device technologies and methods) 130 Former section 145 (Restriction about records and access to surveillance warrant applications etc.) 131 New section 197ZZP (Protected information in the custody of a court)

s 28 147 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `499 Transitional provision for use and disclosure of 1 information obtained from using surveillance devices 2 `New section 197ZZM132 applies to information obtained 3 before the commencement day from using a surveillance 4 device under an existing police service surveillance warrant or 5 an existing police service emergency authorisation that could 6 have been disclosed under former section 146133 as if the 7 information were protected information under new chapter 8 5C. 9 `Subdivision 3 Transitional provisions for CMC 10 surveillance devices 11 `500 Transitional provisions for existing CMC surveillance 12 devices 13 `(1) An existing CMC surveillance warrant that was in force 14 immediately before the commencement day continues in force 15 from that day in accordance with its terms as if it were a 16 surveillance device warrant issued under new section 197ZP 17 to an authorised commission officer. 18 `(2) An existing CMC emergency authorisation that was in force 19 immediately before the commencement day continues in force 20 from that day in accordance with its terms as if it were an 21 emergency authorisation given under new section 197ZZC to 22 an authorised commission officer. 23 `(3) New sections 197ZZD134 to 1197ZZH135 apply to an 24 authorisation mentioned in subsection (2). 25 `(4) A warrant or emergency authorisation may be issued or given 26 under this Act as in force from the commencement day in 27 relation to a misconduct offence that was committed before 28 the commencement day. 29 132 New section 197ZZM (Permitted use of protected information) 133 Former section 146 (Disclosure of information obtained using surveillance warrant) 134 New section 197ZZD (Application for approval after use of surveillance device under emergency authorisation) 135 New section 197ZZH (Admissibility of evidence)

s 28 148 s 28 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `501 Transitional provisions for protection of records 1 `(1) New section 197ZZO(1) and (2) apply to a relevant 136 2 proceeding within the meaning of former section 145137 in 3 relation to an existing CMC surveillance device or an existing 4 CMC emergency authorisation as if the proceeding were a 5 proceeding under new chapter 5C. 6 `(2) New section 197ZZP138 applies to information in the custody 7 of a court in relation to a relevant proceeding within the 8 meaning of former section 145 as if the information were 9 protected information. 10 `502 Transitional provisions for use and disclosure of 11 information obtained from using surveillance devices 12 `New section 197ZZM139 applies to information obtained 13 from using a surveillance device under an existing CMC 14 surveillance warrant or an existing CMC emergency 15 authorisation that could have been disclosed under former 16 section 146140 as if the information were protected information 17 under new chapter 5C. 18 `Division 6 General 19 `503 Transitional regulation-making power 20 `(1) A regulation (a transitional regulation) may make provision 21 about a matter for which-- 22 (a) it is necessary to make provision to allow or facilitate 23 the doing of anything to achieve the transition from the 24 operation of the pre-amended Act to the operation of the 25 post-amended Act; and 26 136 New section 197ZZO (Protection of surveillance device technologies and methods) 137 Former section 145 (Restriction about records and access to surveillance warrant applications etc.) 138 New section 197ZZP (Protected information in the custody of a court) 139 New section 197ZZM (Permitted use of protected information) 140 Former section 146 (Disclosure of information obtained using surveillance warrant)

s 29 149 s 29 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (b) this Act does not make provision or sufficient provision. 1 `(2) In particular, a transitional regulation may prescribe as 2 relevant offences for the definition relevant offence in chapter 3 5A or 5C offences that are not already relevant offences for 4 those chapters. 5 `(3) A transitional regulation, other than a transitional regulation 6 made under subsection (2), may have retrospective operation 7 to a day not earlier than the commencement day. 8 `(4) A transitional regulation must declare it is a transitional 9 regulation. 10 `(5) This section and any transitional regulation expire 12 months 11 after the commencement day.'. 12 Clause 29 Insertion of new schs 23 13 After schedule 1-- 14 insert-- 15 `Schedule 2 Relevant offences for 16 controlled operations 17 and surveillance device 18 warrants 19 sections 140 and 197ZI 20 1 Classification of Computer Games and Images Act 1995 21 An offence against the following provisions of the 22 Classification of Computer Games and Images Act 1995 23 involving a child abuse computer game as defined under that 24 Act-- 25 · section 26(3) (Possession of objectionable computer 26 game) 27 · section 27(3) (Making objectionable computer game) 28 · section 27(4) (Making objectionable computer game) 29

s 29 150 s 29 Cross-Border Law Enforcement Legislation Amendment Bill 2005 · section 28 (Obtaining minor for objectionable computer 1 game). 2 2 Classification of Films Act 1991 3 An offence against the following provisions of the 4 Classification of Films Act 1991-- 5 · section 41(3) (Possession of objectionable film) 6 · section 42(3) and (4) (Making objectionable film) 7 · section 43 (Procurement of minor for objectionable 8 film). 9 3 Classification of Publications Act 1991 10 An offence against the following provisions of the 11 Classification of Publications Act 1991-- 12 · section 12 (Sale etc of prohibited publication or child 13 abuse photograph) to the extent it applies to a child 14 abuse publication or child abuse photograph 15 · section 13 (Possession of prohibited publication) to the 16 extent it applies to a child abuse publication 17 · section 14 (Possession of child abuse publication or 18 child abuse photograph) 19 · section 15 (Exhibition or display of prohibited 20 publication or child abuse photograph) to the extent it 21 applies to a child abuse publication or child abuse 22 photograph 23 · section 16 (Leaving prohibited publication or child 24 abuse photograph in or on public place) to the extent it 25 applies to a child abuse publication or child abuse 26 photograph 27 · section 17(1) and (2) (Producing prohibited publication) 28 to the extent the subsections apply to a child abuse 29 publication 30 · section 17(3) and (4) (Producing prohibited publication) 31

s 29 151 s 29 Cross-Border Law Enforcement Legislation Amendment Bill 2005 · section 18 (Procurement of minor for RC publication or 1 child abuse photograph) 2 · section 20 (Leaving prohibited publication or child 3 abuse photograph in or on private premises) to the extent 4 it applies to a child abuse publication or child abuse 5 photograph. 6 4 Criminal Code 7 An offence against the following provisions of the Criminal 8 Code-- 9 · section 218A (Using internet etc. to procure children 10 under 16) 11 · section 228(1), if the penalty in section 228(2)(a) 12 applies (Obscene publications and exhibitions) 13 · section 228D (Possessing child exploitation material) 14 · section 229H (Knowingly participating in provision of 15 prostitution) if, in the circumstances, the maximum 16 penalty for the offence is less than 7 years imprisonment 17 · section 229I (Persons found in places reasonably 18 suspected of being used for prostitution etc.) if, in the 19 circumstances, the maximum penalty for the offence is 20 less than 7 years imprisonment 21 · section 229K (Having an interest in premises used for 22 the purposes of prostitution etc.) if, in the 23 circumstances, the maximum penalty for the offence is 24 less than 7 years imprisonment 25 · section 324 (Failure to supply necessaries) 26 · section 328 (Negligent acts causing harm). 27 5 Prostitution Act 1999 28 An offence against the following provisions of the 29 Prostitution Act 1999-- 30 · section 78(1) (Brothel offences) 31

s 29 152 s 29 Cross-Border Law Enforcement Legislation Amendment Bill 2005 · section 79(1) (Operating licensed brothel other than in a 1 building) 2 · section 81(1) (Licensee not to operate brothel in 3 partnership or in association with unlicensed person) 4 · section 82 (Person not to have interest in more than 1 5 licensed brothel). 6 6 Weapons Act 1990 7 An offence against the following provisions of the Weapons 8 Act 1990-- 9 · section 50B(1) (Unlawful supply of weapons), if 10 paragraph (c)(iii) of the penalty applies 11 · section 69(1A) (Armourers to be licensed), to the extent 12 it relates to a category A, B or M weapon. 13 `Schedule 3 Relevant offences for chapter 14 5C disclosure of information 15 provisions 16 section 197ZZK, definition relevant offence 17 1 Classification of Computer Games and Images Act 1995 18 An offence against the Classification of Computer Games and 19 Images Act 1995, section 26(3) (Possession of objectionable 20 computer game). 21 2 Classification of Films Act 1991 22 An offence against the Classification of Films Act 1991, 23 section 41(3) (Possession of objectionable film). 24

s 29 153 s 29 Cross-Border Law Enforcement Legislation Amendment Bill 2005 3 Classification of Publications Act 1991 1 An offence against the following provisions of the 2 Classification of Publications Act 1991-- 3 · section 12 (Sale etc of prohibited publication or child 4 abuse photograph) to the extent it applies to a child 5 abuse publication or child abuse photograph 6 · section 13 (Possession of prohibited publication) to the 7 extent it applies to a child abuse publication 8 · section 14 (Possession of child abuse publication or 9 child abuse photograph) 10 · section 15 (Exhibition or display of prohibited 11 publication or child abuse photograph) to the extent it 12 applies to a child abuse publication or child abuse 13 photograph 14 · section 16 (Leaving prohibited publication or child 15 abuse photograph in or on public place) to the extent it 16 applies to a child abuse publication or child abuse 17 photograph 18 · section 20 (Leaving prohibited publication or child 19 abuse photograph in or on private premises) to the extent 20 it applies to a child abuse publication or child abuse 21 photograph. 22 4 Criminal Code 23 An offence against the following provisions of the Criminal 24 Code-- 25 · section 328 (Negligent acts causing harm) 26 · section 544 (Accessories after the fact to crimes) 27 · section 545 (Accessories after the fact to 28 misdemeanours and some other offences) if the 29 maximum penalty for the offence is less than 3 years 30 imprisonment.'. 31

s 30 154 s 30 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Clause 30 Amendment of sch 4 (Dictionary) 1 (1) Schedule 4, definitions authorised person, chapter 4 2 application, class A surveillance device, class B surveillance 3 device, CMC officer, committee, controlled activity, controlled 4 operation, corresponding law, covert act, covert operative, 5 declared law enforcement agency, entity, misconduct offence, 6 monitor, otherwise unlawful activity, relevant offences, 7 relevant place and responsible chief executive officer-- 8 omit. 9 (2) Schedule 4-- 10 insert-- 11 `acquire, for chapter 5B, see section 190.141 12 agency, for chapter 5B, see section 190. 13 authorised civilian, for chapter 5B, see section 190. 14 authorised commission officer means an authorised 15 commission officer as defined under the Crime and 16 Misconduct Act 2001, section 272. 17 authorised officer, for chapter 5B, see section 190. 18 authorised operation, for chapter 5A, see section 140.142 19 authorised person-- 20 (a) for chapter 5B, see section 190; or 21 (b) for chapter 9, part 2, means a person appointed as an 22 authorised person under section 345.143 23 authority-- 24 (a) for chapter 5A, see section 140; or 25 (b) for chapter 5B, see section 190. 26 birth certificate approval, for chapter 5B, see section 190. 27 141 Section 190 (Definitions for ch 5B) 142 Section 140 (Definitions for ch 5A) 143 Section 345 (Appointment of authorised persons)

s 30 155 s 30 Cross-Border Law Enforcement Legislation Amendment Bill 2005 chapter 4 application means an application under chapter 4 1 for a monitoring order or a suspension order. 2 chapter 4A application means an application under chapter 3 4A for a covert search warrant or an extension of a covert 4 search warrant. 5 chapter 5A application means an application under chapter 6 5A for an authority for a controlled operation or a variation of 7 an authority for a controlled operation. 8 chapter 5C application means an application under chapter 9 5C for a surveillance warrant, a variation or extension of a 10 surveillance warrant, or a retrieval warrant. 11 chapter 8B offences see section 320.144 12 civilian participant, for chapter 5A, see section 140. 13 commission officer means a commission officer as defined 14 under the Crime and Misconduct Act 2001. 15 committee, for chapter 5A, see section 140. 16 computer, for chapter 5C, see section 197ZH. 17 conduct-- 18 (a) for chapter 5A, see section 140; or 19 (b) for chapter 5B, see section 190. 20 controlled activity see section 135. 21 controlled conduct, for chapter 5A, see section 140. 22 controlled operation, for chapter 5A, see section 140. 23 corresponding authorised operation, for chapter 5A, see 24 section 140. 25 corresponding authority-- 26 (a) for chapter 5A, see section 140; or 27 (b) for chapter 5B, see section 190. 28 corresponding emergency authorisation, for chapter 5C, see 29 section 197ZH. 30 144 Section 320 (Application of ch 8B)

s 30 156 s 30 Cross-Border Law Enforcement Legislation Amendment Bill 2005 corresponding law means a law of another State or the 1 Commonwealth, declared under a regulation to be a law 2 corresponding with this Act or a stated provision of it, 3 whether that provision relates to-- 4 (a) forensic procedures; or 5 (b) the acquisition or use of assumed identities; or 6 (c) the conduct of controlled operations; or 7 (d) the use of surveillance devices; or 8 (e) another matter for which this Act expressly authorises 9 the doing of something in relation to a jurisdiction for 10 which there is a corresponding law for the purpose. 11 corresponding participant, for chapter 5A, see section 140. 12 corresponding warrant, for chapter 5C, see section 197ZH. 13 covert act means-- 14 (a) the making of a chapter 4, chapter 4A, chapter 5A or 15 chapter 5C application; or 16 (b) the exercise of powers under this Act under-- 17 (i) a monitoring order; or 18 (ii) a suspension order; or 19 (iii) a surveillance device warrant; or 20 (iv) a retrieval warrant; or 21 (v) a covert search warrant; or 22 (vi) an authorisation for a controlled operation; or 23 (c) the disclosure of information to a declared agency. 24 criminal activity-- 25 (a) for chapter 5A, see section 140; or 26 (b) for chapter 5B, see section 190. 27 data surveillance device, for chapter 5C, see section 197ZH. 28 declared agency means an entity prescribed under a 29 regulation as a declared agency for this Act. 30 device, for chapter 5C, see section 197ZH. 31

s 30 157 s 30 Cross-Border Law Enforcement Legislation Amendment Bill 2005 disciplinary proceeding, for chapter 5C, see section 197ZH. 1 doing, for chapter 5B, see section 190. 2 emergency authorisation, for chapter 5C, see section 197ZH. 3 enhancement equipment, for chapter 5C, see section 197ZH. 4 evidence, for chapter 5B, see section 190. 5 formal application, for chapter 5A, see section 140. 6 formal authority, for chapter 5A, see section 140. 7 formal variation application, for chapter 5A, see section 140. 8 formal variation of authority, for chapter 5A, see section 140. 9 government issuing agency, for chapter 5B, see section 190. 10 illicit goods, for chapter 5A, see section 140. 11 inspection entity means-- 12 (a) for chapter 5A, see section 140; or 13 (b) for chapter 5C, see section 197ZH. 14 install, for chapter 5C, see section 197ZH. 15 issuing agency, for chapter 5B, see section 190. 16 jurisdiction means-- 17 (a) for chapters 5A, 5B and 5C, a State of the 18 Commonwealth; or 19 (b) if the ACC may do a thing under chapter 5A, 5B or 5C, 20 the Commonwealth or a State of the Commonwealth. 21 22 Note-- 23 Under the Acts Interpretation Act 1954, section 33A, a reference to a 24 State includes a reference to the Australian Capital Territory and the 25 Northern Territory. law enforcement agency-- 26 (a) for chapters 5A, means-- 27 (i) the police service; or 28 (ii) the CMC; or 29 (b) for chapter 5B, means-- 30

s 30 158 s 30 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (i) the police service; or 1 (ii) the CMC; or 2 (c) for chapter 5C, means-- 3 (i) the police service; or 4 (ii) the CMC. 5 law enforcement officer-- 6 (a) for chapter 5A, means-- 7 (i) for the police service--a police officer; or 8 (ii) a staff member of the service authorised by the 9 commissioner for the purpose of the provision in 10 which the expression is used; or 11 (iii) for the CMC--a commission officer; or 12 (b) for chapter 5B, means-- 13 (i) for the police service--a police officer; or 14 (ii) for the CMC--a commission officer; or 15 (c) for chapter 5C, means-- 16 (i) for the police service--a police officer; or 17 (ii) for the CMC--a commission officer; or 18 (d) for sections 375 and 451 to 454, means-- 19 (i) a police officer; or 20 (ii) a person performing functions as a law 21 enforcement officer under chapter 5A or 5C. 22 law enforcement participant, for chapter 5A, see section 140. 23 listening device means any device capable of being used to 24 overhear, record, monitor or listen to a private conversation or 25 words spoken to or by any person in private conversation, but 26 does not include a hearing aid or similar device used by a 27 person with impaired hearing to overcome the impairment and 28 permit that person to hear only sounds ordinarily audible to 29 the human ear. 30 maintain, for chapter 5C, see section 197ZH. 31

s 30 159 s 30 Cross-Border Law Enforcement Legislation Amendment Bill 2005 monitor, when used as a noun, means-- 1 (a) the public interest monitor appointed under section 157; 2 or 3 (b) a deputy public interest monitor.145 4 non-government issuing agency, for chapter 5B, see 5 section 190. 6 officer, for chapter 5B, see section 190. 7 optical surveillance device, for chapter 5C, see section 8 197ZH. 9 parliamentary committee, for chapters 5A, 5B and 5C, means 10 the Parliamentary Crime and Misconduct Committee of the 11 Legislative Assembly. 12 parliamentary committee chairperson means the chairperson 13 of the parliamentary committee. 14 participant, for chapter 5A, see section 140. 15 participating jurisdiction, for chapter 5A, 5B or 5C, means a 16 jurisdiction in which a corresponding law for the purposes of 17 the chapter is in force. 18 premises, for chapter 5C, see section 197ZH. 19 principal law enforcement officer, for chapter 5A, see 20 section 140. 21 protected information, for chapter 5C, see section 197ZH. 22 public officer, for chapter 5C, see section 197ZH. 23 record, for chapter 5C, see section 197ZH. 24 relevant offence-- 25 (a) for chapter 5A, see section 140; or 26 (b) for chapter 5C, see section 197ZH. 27 relevant proceeding, for chapter 5C, see section 197ZZK. 28 remote application, for chapter 5C, see section 197ZH. 29 145 Section 157 (Public interest monitor)

s 30 160 s 30 Cross-Border Law Enforcement Legislation Amendment Bill 2005 report of a conversation or activity, for chapter 5C, see section 1 197ZH. 2 report entity, for chapter 5A, see section 140. 3 retrieval warrant, for chapter 5C, see section 197ZH. 4 senior officer, for chapter 5C, see section 197ZH. 5 supervisor, for chapter 5B, see section 190. 6 surveillance device, for chapter 5C, see section 197ZH. 7 surveillance device warrant, for chapter 5C, see section 8 197ZH. 9 suspect, for chapter 5A, see section 140. 10 this jurisdiction, for chapters 5A, 5B and 5C, means 11 Queensland. 12 three year imprisonment offence, for chapter 5C, see section 13 197ZH. 14 tracking device, for chapter 5C, see section 197ZH. 15 urgent application, for chapter 5A, see section 140. 16 urgent authority, for chapter 5A, see section 140. 17 urgent variation application, for chapter 5A, see section 140. 18 urgent variation of authority, for chapter 5A, see section 140. 19 use-- 20 (a) for chapter 5B, see section 190; or 21 (b) of a surveillance device, for chapter 5C, see section 22 197ZH. 23 warrant, for chapter 5C, see section 197ZH.'. 24 (3) Schedule 4, definition chief executive officer-- 25 insert-- 26 `(c) for an issuing agency under chapter 5B--the chief 27 executive officer, however described, of the issuing 28 agency.'. 29 (4) Schedule 4, definition police officer, paragraphs (b) and (c)-- 30 omit, insert-- 31

s 31 161 s 32 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(b) for chapters 5A and 5C--a police officer of a police 1 force or service of another State or the Commonwealth; 2 and 3 `(c) other than for chapters 5A and 5C--a police officer of a 4 police force or service of another State or the 5 Commonwealth who is, for the time being, performing 6 duties for the police service.'. 7 Division 3 Amendments relating to Australian 8 Crime Commission activities 9 Subdivision 1 Controlled operations related 10 amendments 11 Clause 31 Amendment of s 141 (Relationship to other laws and 12 matters) 13 (1) Section 141(6)-- 14 renumber as section 141(7). 15 (2) Section 141-- 16 insert-- 17 `(6) A function or power conferred in relation to the activities of 18 the ACC under this chapter is only conferred for the purpose 19 of the function or power conferred on the ACC under the 20 Australian Crime Commission (Queensland) Act 2003 21 relating to suspected serious and organised crime as defined 22 under that Act.'. 23 Clause 32 Amendment of s 143 (Establishment of controlled 24 operations committee) 25 Section 143(2)-- 26 insert-- 27 `(d) for any application made by the ACC--the chief 28 executive officer of the ACC.'. 29

s 33 162 s 36 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Clause 33 Amendment of s 180 (Annual report by report entity) 1 Section 180(2), at the end-- 2 insert-- 3 `Note-- 4 5 Commonwealth law makes provision for reports by the ACC about 6 activities under State law.'. Clause 34 Replacement of s 182 (General register) 7 Section 182-- 8 omit, insert-- 9 `182 General register 10 `(1) This section applies only to the police service and the CMC. 11 `(2) The chief executive officer must cause a general register to be 12 kept. 13 `(3) The register must be or form part of the register of covert acts 14 kept under chapter 11, part 2.146'. 15 Clause 35 Amendment of s 184 (Delegation generally) 16 Section 184-- 17 insert-- 18 `(2) For applying this part to the ACC, a reference in this division 19 to a power includes a reference to a function.'. 20 Clause 36 Insertion of new s 186A 21 Chapter 5A, part 6, division 1, after section 186-- 22 insert-- 23 `186A Delegations--ACC 24 `(1) The chief executive officer of the ACC may delegate any of 25 the chief executive officer's powers under this chapter relating 26 146 Chapter 11 (Administration), part 2 (Registers)

s 37 163 s 37 Cross-Border Law Enforcement Legislation Amendment Bill 2005 to the authorisation of controlled operations, including the 1 variation and cancellation of authorities for controlled 2 operations and notifications under section 175(2),147 to a 3 senior officer of the ACC. 4 `(2) In this section-- 5 senior officer, of the ACC, means any of the following-- 6 (a) the Director National Operations; 7 (b) the General Manager National Operations; 8 (c) a member of staff of the ACC-- 9 (i) who is an SES employee or acting SES employee 10 within the meaning of the Public Service Act 1999 11 (Cwlth); and 12 (ii) who holds a position that is prescribed by 13 regulation for this definition.'. 14 Clause 37 Amendment of sch 4 (Dictionary) 15 (1) Schedule 4, definition chief executive officer, paragraph (c), 16 `chapter'-- 17 omit, insert-- 18 `chapter 5A or'. 19 (2) Schedule 4, definition law enforcement agency, paragraph 20 (a)-- 21 insert-- 22 `(iii) the ACC; or'. 23 (3) Schedule 4, definition law enforcement officer, paragraph 24 (a)-- 25 insert-- 26 `(iv) for the ACC--a member of staff of the ACC who 27 is a police officer of a police force or service of a 28 State or the Commonwealth; or'. 29 147 Section 175 (Notification requirements)

s 38 164 s 41 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Subdivision 2 Assumed identities related 1 amendments 2 Clause 38 Amendment of s 191 (Relationship to other laws and 3 matters) 4 (1) Section 191(2)-- 5 renumber as section 191(3). 6 (2) Section 191-- 7 insert-- 8 `(2) A function or power conferred under this chapter in relation to 9 the activities of the ACC is only conferred for the purpose of 10 the function or power conferred on the ACC under the 11 Australian Crime Commission (Queensland) Act 2003 12 relating to suspected serious and organised crime as defined 13 under that Act.'. 14 Clause 39 Amendment of s 193 (Deciding application) 15 Section 193(4)-- 16 insert-- 17 `(c) for the ACC--of or above the rank of senior 18 investigator.'. 19 Clause 40 Amendment of s 197ZA (Report about authorities for 20 assumed identities etc.) 21 Section 197ZA, at the end-- 22 insert-- 23 `Note-- 24 25 Commonwealth law makes provision for reports by the ACC about 26 activities under State law.'. Clause 41 Amendment of s 197ZD (Delegation generally) 27 Section 197ZD-- 28

s 42 165 s 43 Cross-Border Law Enforcement Legislation Amendment Bill 2005 insert-- 1 `(2) For applying this division to the ACC, a reference in this part 2 to a power includes a reference to a function.'. 3 Clause 42 Insertion of new s 197ZFA 4 Chapter 5B, part 7, after section 197ZF-- 5 insert-- 6 `197ZFADelegation--ACC 7 `(1) The chief executive officer of the ACC may delegate any of 8 the chief executive's powers under this chapter relating to the 9 following to a senior officer of the ACC-- 10 (a) the granting, variation and cancellation of authorities, 11 including conducting reviews under section 197; 12 (b) making applications under section 197A; 13 (c) making requests under section 197G or 197T. 14 `(2) No more than 4 delegations may be in force under this section 15 at any time. 16 `(3) In this section-- 17 senior officer, of the ACC, means any of the following-- 18 (a) the Director National Operations; 19 (b) a director; 20 (c) the General Manager National Operations; 21 (d) a member of staff of the ACC-- 22 (i) who is an SES employee or acting SES employee 23 within the meaning of the Public Service Act 1999 24 (Cwlth); and 25 (ii) who holds a position prescribed under a regulation 26 for this definition.'. 27 Clause 43 Amendment of sch 4 (Dictionary) 28 (1) Schedule 4, definition law enforcement agency, paragraph 29 (b)-- 30

s 44 166 s 45 Cross-Border Law Enforcement Legislation Amendment Bill 2005 insert-- 1 `(iii) the ACC; or'. 2 (2) Schedule 4, definition law enforcement officer, paragraph 3 (b)-- 4 insert-- 5 `(iii) for the ACC--a member of staff of the ACC who 6 is a police officer of a police force or service of a 7 State or the Commonwealth; or'. 8 Subdivision 3 Surveillance device warrant related 9 amendments 10 Clause 44 Amendment of s 197ZH (Definitions for ch 5C) 11 (1) Section 197ZH, definition inspection entity, after `law 12 enforcement agency'-- 13 insert-- 14 `other than the ACC'. 15 (2) Section 197ZH, definition inspection entity, at the end-- 16 insert-- 17 `Note-- 18 19 For inspection requirements for the ACC, see the Surveillance Devices 20 Act 2004 (Cwlth), section 55.'. (3) Section 197ZH, definition senior officer-- 21 insert-- 22 `(c) for the ACC--a member of staff of the ACC who is an 23 SES employee within the meaning of the Public Service 24 Act 1999 (Cwlth).'. 25 Clause 45 Amendment of s 197ZK (Relationship to other laws and 26 matters) 27 (1) Section 197ZK(4) to (7)-- 28 renumber as section 197ZK(5) to (8). 29

s 46 167 s 47 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (2) Section 197ZK-- 1 insert-- 2 `(4) A function or power conferred under this chapter in relation to 3 the activities of the ACC is only conferred for the purpose of 4 the function or power conferred on the ACC under the 5 Australian Crime Commission (Queensland) Act 2003 6 relating to suspected serious and organised crime as defined 7 under that Act.'. 8 Clause 46 Amendment of s 197ZN (Application for surveillance 9 device warrant) 10 (1) Section 197ZN(7) and (8)-- 11 renumber as section 197ZN(8) and (9). 12 (2) Section 197ZN-- 13 insert-- 14 `(7) Subsections (5) and (6) do not apply to an application made 15 under this Act for the ACC, but in that case the application 16 must be supported by an affidavit as if it had been made under 17 the Surveillance Devices Act 2004 (Cwlth), section 14.148'. 18 Clause 47 Amendment of s 197ZZL (Prohibition on communication 19 or publication of protected information) 20 (1) Section 197ZZL(3)(g)-- 21 renumber as section 197ZZL(3)(h). 22 (2) Section 197ZZL(3)-- 23 insert-- 24 `(g) the communication by the monitor to the 25 Commonwealth Ombudsman of information the 26 monitor is satisfied is necessary to enable the 27 Commonwealth Ombudsman to perform functions 28 148 Surveillance Devices Act 2004 (Cwlth), section 14 (Application for surveillance device warrant)

s 48 168 s 49 Cross-Border Law Enforcement Legislation Amendment Bill 2005 under the Surveillance Devices Act 2004 (Cwlth) in 1 relation to the ACC; or'. 2 Clause 48 Amendment of s 197ZZR (Annual reports) 3 Section 197ZZR(4), at the end-- 4 insert-- 5 6 `Note-- 7 The Surveillance Devices Act 2004 (Cwlth) makes provision for reports 8 by the ACC about activities under State law.'. Clause 49 Amendment of sch 4 (Dictionary) 9 (1) Schedule 4, definition law enforcement agency, paragraph 10 (c)-- 11 insert-- 12 `(iii) the ACC.'. 13 (2) Schedule 4, definition chief executive officer, paragraph (c)-- 14 renumber as paragraph (d). 15 (3) Schedule 4, definition chief executive officer-- 16 insert-- 17 `(c) for the ACC, but only for chapter 5C--the chief 18 executive officer of the ACC; or'. 19 (4) Schedule 4, definition law enforcement officer, paragraph 20 (c)-- 21 insert-- 22 `(iii) for the ACC--a member of staff of the ACC who 23 is a police officer of a police force or service of a 24 State or the Commonwealth; or'. 25

s 50 169 s 51 Cross-Border Law Enforcement Legislation Amendment Bill 2005 Part 3 Amendment of Evidence Act 1 1977 2 Division 1 Preliminary 3 Clause 50 Act amended in pt 3 4 This part amends the Evidence Act 1977. 5 Division 2 Amendments relating to police and 6 Crime and Misconduct Commission 7 activities 8 Clause 51 Replacement of pt 2, div 5 (Witness anonymity) 9 Part 2, division 5-- 10 omit, insert-- 11 `Division 5 Witness identity protection 12 `Subdivision 1 Preliminary 13 `21B Purposes of div 5 14 `The purposes of this division are-- 15 (a) to facilitate, for law enforcement purposes, 16 investigations in relation to criminal activity, including 17 investigations extending beyond Queensland, by-- 18 (i) providing for the protection of the identity of 19 operatives; and 20 (ii) facilitating the recognition of witness identity 21 protection certificates under corresponding laws; 22 and 23

s 51 170 s 51 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (b) to facilitate investigations by the CMC in relation to 1 misconduct by providing for the protection of the 2 identity of operatives. 3 `21C Definitions for div 5 4 `In this division-- 5 assumed name, of an operative, see section 21G(1)(a)(i).149 6 chief executive officer, of a law enforcement agency, 7 means-- 8 (a) for the CMC--the chairperson of the CMC; or 9 (b) for the police service--the commissioner of the police 10 service. 11 CMC means the Crime and Misconduct Commission 12 established under the Crime and Misconduct Act 2001. 13 conduct includes any act or omission. 14 convicted means found guilty, or having a plea of guilty 15 accepted by a court, whether or not a conviction is recorded. 16 corresponding law means a law of another jurisdiction that is 17 declared under a regulation to correspond to this division. 18 corresponding witness identity protection certificate means a 19 certificate given under a corresponding law that corresponds 20 to section 21F.150 21 court name, for an operative in relation to a proceeding, 22 means a name, other than the operative's real name, or code 23 used to identify the operative in the proceeding. 24 criminal activity means conduct that involves the commission 25 of an offence by 1 or more persons. 26 investigation means an investigation in relation to-- 27 (a) criminal activity, including an investigation extending 28 beyond Queensland; or 29 149 Section 21G (Form of witness identity protection certificate) 150 Section 21F (Giving witness identity protection certificate)

s 51 171 s 51 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (b) misconduct. 1 jurisdiction means the Commonwealth or a State of the 2 Commonwealth. 3 law enforcement agency means-- 4 (a) the CMC; or 5 (b) the police service. 6 misconduct see the Crime and Misconduct Act 2001, 7 schedule 2.151 8 operative means a person who is or was-- 9 (a) a covert operative under the Crime and Misconduct 10 Act 2001, chapter 3, part 6A;152 or 11 (b) a participant in an authorised operation under the Police 12 Powers and Responsibilities Act 2000, chapter 5A;153 or 13 (c) an authorised person under the Police Powers and 14 Responsibilities Act 2000, chapter 5B.154 15 party, to a proceeding, means-- 16 (a) for a criminal proceeding--the prosecutor and each 17 accused person; or 18 (b) for a civil proceeding--each person who is a party to the 19 proceeding; or 20 (c) for another proceeding--each person who has been 21 given leave to appear in the proceeding. 22 relevant court, for a proceeding, means the entity before 23 whom or which the proceeding is held or taken. 24 witness identity protection certificate means a certificate 25 given under section 21F. 26 151 Crime and Misconduct Act 2001, schedule 2-- misconduct means official misconduct or police misconduct. 152 Crime and Misconduct Act 2001, chapter 3 (Powers), part 6A (Controlled operations and controlled activities for misconduct offences) 153 Police Powers and Responsibilities Act 2000, chapter 5A (Controlled operations) 154 Police Powers and Responsibilities Act 2000, chapter 5B (Assumed identities)

s 51 172 s 51 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `21D Application of div 5 to lawyer of party to a 1 proceeding 2 `For this division-- 3 (a) anything permitted to be done by a party to a proceeding 4 may be done by the party's lawyer; and 5 (b) any requirement to give something to, or notify, a party 6 to a proceeding is satisfied by giving the thing to, or 7 notifying, the party's lawyer. 8 `Subdivision 2 Witness identity protection 9 certificates for operatives 10 `21E Application of sdiv 2 11 `(1) This subdivision applies to a proceeding in which an operative 12 is, or may be, required to give evidence obtained as an 13 operative. 14 `(2) To remove any doubt, it is declared that this subdivision does 15 not affect the operation of the common law in relation to the 16 protection of the identity of a person who is not an operative 17 who gives or intends to give evidence in a proceeding. 18 `21F Giving witness identity protection certificate 19 `(1) The chief executive officer of a law enforcement agency may 20 give a witness identity protection certificate for an operative 21 of the agency in relation to a proceeding if-- 22 (a) the operative is, or may be required, to give evidence in 23 the proceeding; and 24 (b) the chief executive officer is satisfied on reasonable 25 grounds that the disclosure in the proceeding of the 26 operative's identity or where the operative lives is likely 27 to-- 28 (i) endanger the safety of the operative or someone 29 else; or 30 (ii) prejudice an investigation. 31

s 51 173 s 51 Cross-Border Law Enforcement Legislation Amendment Bill 2005 `(2) The chief executive officer must make all reasonable enquiries 1 to enable him or her to find out the information required to be 2 included in the witness identity protection certificate under 3 section 21G. 4 `(3) A decision to give a witness identity protection certificate-- 5 (a) is final; and 6 (b) can not be impeached for informality or want of form; 7 and 8 (c) can not be appealed against, reviewed, called into 9 question, quashed or invalidated in any court. 10 `(4) Subsection (3) does not prevent a decision to give a witness 11 identity protection certificate being called into question 12 during a proceeding of a disciplinary nature against the person 13 who made the decision. 14 `21G Form of witness identity protection certificate 15 `(1) A witness identity protection certificate for an operative of a 16 law enforcement agency in relation to a proceeding must state 17 all of the following-- 18 (a) if the operative-- 19 (i) is known to a party to the proceeding or a party's 20 lawyer by a name other than the operative's real 21 name--that name (the assumed name); or 22 (ii) is not known to any party to the proceeding or any 23 party's lawyer by a name--the operative's court 24 name for the proceeding; 25 (b) the period the operative was involved in the 26 investigation to which the proceeding relates; 27 (c) the name of the agency; 28 (d) the date of the certificate; 29 (e) a general description of the reasons for giving the 30 certificate; 31

s 51 174 s 51 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (f) whether the operative has been convicted of an offence, 1 in Queensland or elsewhere, and, if so, particulars of 2 each offence; 3 (g) whether a charge against the operative for an offence is 4 outstanding, in Queensland or elsewhere, and, if so, 5 particulars of each charge; 6 (h) if the operative is, or was, a law enforcement officer-- 7 (i) whether the operative has been found guilty of 8 professional misconduct and, if so, particulars of 9 each finding; and 10 (ii) whether any allegation of professional misconduct 11 against the operative is outstanding and, if so, 12 particulars of each allegation; 13 (i) whether, to the knowledge of the person giving the 14 certificate, a court has made any adverse comment about 15 the operative's credibility and, if so, particulars of the 16 comment; 17 (j) whether, to the knowledge of the person giving the 18 certificate, the operative has made a false representation 19 when the truth was required and, if so, particulars of the 20 representation; 21 (k) if there is anything else known to the person giving the 22 certificate that may be relevant to the operative's 23 credibility--particulars of the thing. 24 `(2) A witness identity protection certificate for an operative must 25 not contain information that may allow the operative's 26 identity, or where the operative lives, to be revealed. 27 `(3) For this section-- 28 (a) a charge against a person for an offence is outstanding 29 until the charge is finally dealt with in any of the 30 following ways-- 31 (i) the charge is withdrawn; 32 (ii) the charge is dismissed by a court; 33 (iii) the person is discharged by a court; 34

s 51 175 s 51 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (iv) the person is acquitted or convicted of the offence 1 by a court; and 2 (b) an allegation of professional misconduct against a 3 person is outstanding if the allegation has not been 4 finally dealt with. 5 `(4) The Criminal Law (Rehabilitation of Offenders) Act 1986 6 does not apply to the disclosure of information under 7 subsection (1)(f) or (g). 8 `(5) In this section-- 9 charge, for an offence, means a charge in any form, including, 10 for example, the following-- 11 (a) a charge on an arrest; 12 (b) a notice to appear served under the Police Powers and 13 Responsibilities Act 2000, section 214;155 14 (c) a complaint under the Justices Act 1886; 15 (d) a charge by a court under the Justices Act 1886, 16 section 42(1A),156 or another provision of an Act; 17 (e) an indictment. 18 false representation does not include a representation made 19 under-- 20 (a) an authority, or a corresponding authority, under the 21 Police Powers and Responsibilities Act 2000, 22 chapter 5A or 5B;157 or 23 (b) an approval under the Crime and Misconduct Act 2001, 24 chapter 3, part 6A.158 25 law enforcement officer means-- 26 155 Police Powers and Responsibilities Act 2000, section 214 (Notice to appear may be issued for offence) 156 Justices Act 1886, section 42 (Commencement of proceedings) 157 Police Powers and Responsibilities Act 2000, chapter 5A (Controlled operations) or 5B (Assumed identities) 158 Crime and Misconduct Act 2001, chapter 3 (Powers), part 6A (Controlled operations and controlled activities for misconduct offences)

s 51 176 s 51 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) a commission officer under the Crime and Misconduct 1 Act 2001; or 2 (b) a police officer. 3 professional misconduct means-- 4 (a) misconduct under the Crime and Misconduct Act 2001; 5 or 6 (b) misconduct or a breach of discipline under-- 7 (i) the Police Service Administration Act 1990; or 8 (ii) a law of another jurisdiction, or a foreign country, 9 that corresponds to the Police Service 10 Administration Act 1990. 11 `21H Filing and notification 12 `(1) If the chief executive officer of a law enforcement agency 13 gives a witness identity protection certificate for an operative 14 in relation to a proceeding, the agency must-- 15 (a) file the certificate with the relevant court for the 16 proceeding before the operative gives evidence in the 17 proceeding; and 18 (b) if the agency is the police service--give to the 19 chairperson of the CMC a copy of the certificate and 20 notice of the date it was filed. 21 `(2) Also, the law enforcement agency must give a copy of the 22 witness identity protection certificate to each party to the 23 proceeding at least 14 days, or the shorter period agreed to by 24 a party, before the day the operative is to give evidence. 25 `(3) The relevant court may order the law enforcement agency to 26 give a copy of the witness identity protection certificate to 27 someone else stated in the order. 28 `21I Effect of witness identity protection certificate 29 `(1) This section applies if-- 30

s 51 177 s 51 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (a) a witness identity protection certificate for an operative 1 in relation to a proceeding is filed under 2 section 21H(1)(a); and 3 (b) either-- 4 (i) a copy of the certificate is given to each party 5 under section 21H(2) and to each person, if any, 6 stated in an order under section 21H(3) for the 7 certificate; or 8 (ii) the relevant court for the proceeding gives leave for 9 this section to apply despite non-compliance with 10 section 21H(2) or (3). 11 `(2) If this section applies-- 12 (a) the operative may give evidence in the proceeding under 13 the assumed name, or court name, stated in the 14 certificate; and 15 (b) subject to section 21K-- 16 (i) a question must not be asked of a witness, 17 including the operative, that may lead to the 18 disclosure of the operative's identity or where the 19 operative lives; and 20 (ii) a witness, including the operative, can not be 21 required to, and must not, answer a question, give 22 evidence or provide information that discloses, or 23 may lead to the disclosure of, the operative's 24 identity or where the operative lives; and 25 (iii) a person involved in the proceeding must not make 26 a statement that discloses, or may lead to the 27 disclosure of, the operative's identity or where the 28 operative lives. 29 `(3) For this section, a person involved in a proceeding includes 30 the following-- 31 (a) the relevant court; 32 (b) a party to the proceeding; 33 (c) a person given leave to be heard or make submissions in 34 the proceeding; 35

s 51 178 s 51 Cross-Border Law Enforcement Legislation Amendment Bill 2005 (d) a lawyer representing a person mentioned in 1 paragraph (b) or (c) or a lawyer assisting the court in the 2 proceeding; 3 (e) any other officer of the court or person assisting the 4 court in the proceeding; 5 (f) a person acting in the execution of any process or the 6 enforcement of any order in the proceeding. 7 `21J Orders to protect operative's identity etc. 8 `(1) The court with which a witness identity protection certificate 9 is filed may make any order it considers necessary or 10 desirable-- 11 (a) to protect the identity of the operative for whom the 12 certificate is given; or 13 (b) to prevent the disclosure of where the operative lives. 14 15 Examples of orders-- 16 · an order prohibiting sketching of the operative 17 · an order that the operative give evidence in the absence of the 18 public `(2) A person commits an offence if-- 19 (a) the person knows that, or is reckless as to whether, an 20 order has been made under subsection (1); and 21 (b) the person intentionally, knowingly or recklessly 22 contravenes the order.