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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
POLICE POWERS (CONTROLLED OPERATIONS)
BILL 2006
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Purposes of Act
4. Interpretation
5. Meaning of reckless
6. Act binds Crown
7. Relationship to other laws and matters
8. Controlled operation taken to be conducted in this jurisdiction
PART 2 AUTHORISATION OF CONTROLLED OPERATIONS
9. Applications for authorities to conduct controlled operations
10. Determination of applications
11. Form of authority
12. Duration of authorities
13. Variation of authority
14. Form of variation of authority
15. Cancellation of authorities
16. Effect of authorities
17. Defect in authority
[Bill 36]-I
PART 3 CONDUCT OF CROSS-BORDER CONTROLLED
OPERATIONS
Division 1 Controlled conduct engaged in for purposes of controlled
operations authorised by Part 2
18. Protection from criminal responsibility for controlled conduct
during authorised operations
19. Indemnification of participants against civil liability
20. Effect of sections 18 and 19 on other laws relating to criminal
investigation
21. Effect of being unaware of variation or cancellation of authority
22. Protection from criminal responsibility for certain ancillary
conduct
Division 2 Compensation and notification of third parties
23. Compensation for property loss or serious damage
24. Notification requirements
Division 3 Mutual recognition
25. Mutual recognition of corresponding authorities
PART 4 COMPLIANCE AND MONITORING
Division 1 Restrictions on use, communication and publication of
information
26. Unauthorised disclosure of information
Division 2 Reporting and record-keeping
27. Principal law enforcement officers' reports
28. Chief officers' annual reports
29. Keeping documents connected with authorised operations
30. General register
Division 3 Inspections
31. Inspection entity
32. Inspection of records by inspection entity
PART 5 MISCELLANEOUS
33. Evidence of authorities
34. Delegation
2
35. Regulations
36. Administration of Act
3
4
POLICE POWERS (CONTROLLED OPERATIONS)
BILL 2006
(Brought in by the Minister for Justice and Workplace
Relations, the Honourable Steven Kons)
A BILL FOR
An Act to provide for the authorisation, conduct and
monitoring of controlled operations and for other matters
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Police Powers
(Controlled Operations) Act 2006.
2. Commencement
This Act commences on a day to be proclaimed.
3. Purposes of Act
The main purposes of this Act are
(a) to provide for the authorisation, conduct
and monitoring of controlled operations,
including operations conducted in this or
[Bill 36] 5
Police Powers (Controlled Operations) Act 2006
Act No. of
s. 3 Part 1 Preliminary
this and one or more other jurisdictions
or in one or more participating
jurisdictions
(i) for the purpose of obtaining
evidence that may lead to the
prosecution of persons for
particular offences; and
(ii) that involve or may involve
conduct for which participants in
the operation would otherwise be
criminally responsible; and
(b) to facilitate mutual recognition of things
done in relation to controlled operations
authorised under laws of other
jurisdictions corresponding to this Act;
and
(c) to ensure, as far as practicable, that only
appropriately trained persons may act as
participants in authorised operations; and
(d) to ensure that a person who may act as a
participant in an authorised operation
engages in otherwise unlawful activities
only as part of the authorised operation;
and
(e) to provide appropriate protection from
civil and criminal liability for persons
acting under this Act; and
(f) to clarify the status of evidence obtained
by participants in authorised operations.
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Part 1 Preliminary s. 4
4. Interpretation
In this Act, unless the contrary intention
appears
"Australian Crime Commission" means the
Australian Crime Commission
established by the Australian Crime
Commission Act 2002 of the
Commonwealth;
"authorised operation" means a controlled
operation for which an authority is in
force;
"authority" means an authority in force under
Part 2, and includes any variation of such
an authority;
"chief officer" means the person for the time
being holding office as
(a) in relation to the Police Service,
the Commissioner of Police; or
(b) in relation to the Australian
Crime Commission, the Chief
Executive Officer of the
Australian Crime Commission;
"civilian participant", in an authorised
operation, means a participant in the
operation who is not a law enforcement
officer;
"conduct" includes any act or omission;
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Police Powers (Controlled Operations) Act 2006
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s. 4 Part 1 Preliminary
"controlled conduct" means conduct for
which a person would, but for section 18
or 25, be criminally responsible;
"controlled operation" means an operation
that
(a) is conducted, or is intended to be
conducted, for the purpose of
obtaining evidence that may lead
to the prosecution of a person for
a relevant offence; and
(b) involves, or may involve,
controlled conduct;
"corresponding authorised operation"
means any operation in the nature of a
controlled operation that is authorised by
or under the provisions of a
corresponding law;
"corresponding authority" means an
authority authorising a controlled
operation (within the meaning of a
corresponding law) that is in force under
the corresponding law;
"corresponding law" means a law of another
jurisdiction that corresponds to this Act,
and includes a law of another jurisdiction
that is declared by the regulations to
correspond to this Act;
"corresponding participant" means a person
who is authorised by a corresponding
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Act No. of
Part 1 Preliminary s. 4
authority to participate in a
corresponding authorised operation;
"criminal activity" means conduct that
involves the commission of an offence by
one or more persons;
"function" includes a power, authority or
duty;
"formal application" see section 9(2)(a);
"formal authority" see section 11(1)(a);
"formal variation application" see
section 13(5)(a);
"formal variation of authority" see
section 13(10)(a);
"illicit goods" means goods the possession of
which is a contravention of the law of
this jurisdiction;
"inspection entity" means the person
appointed and holding office under
section 31;
"jurisdiction" means a State or Territory of
the Commonwealth;
"law enforcement agency" means
(a) the Police Service; or
(b) the Australian Crime
Commission;
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s. 4 Part 1 Preliminary
"law enforcement officer" means
(a) in relation to the Police Service, a
police officer; and
(b) in relation to the Australian
Crime Commission, a member of
staff of the Australian Crime
Commission
and includes a person who is seconded to
a law enforcement agency, including (but
not limited to) a member of the police
force or police service, and a police
officer (however described), of another
jurisdiction;
"law enforcement participant", in an
authorised operation, means a participant
in the operation who is a law
enforcement officer;
"participant", in an authorised operation,
means a person who is authorised under
this Act to engage in controlled conduct
for the purposes of the operation;
"participating jurisdiction" means a
jurisdiction in which a corresponding law
is in force;
"principal law enforcement officer", for an
authorised operation, means the law
enforcement officer who is responsible
for the conduct of the operation;
"relevant offence" means
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Part 1 Preliminary s. 5
(a) an offence against the law of this
jurisdiction punishable by a
maximum term of imprisonment
of 3 years or more; or
(b) an offence against the law of this
jurisdiction that is prescribed by
the regulations;
"suspect" means a person reasonably
suspected of having committed or being
likely to have committed, or of
committing or being likely to commit, a
relevant offence;
"this jurisdiction" means Tasmania;
"urgent application" see section 9(2)(b);
"urgent authority" see section 11(1)(b);
"urgent variation application" see
section 13(5)(b);
"urgent variation of authority" see
section 13(10)(b).
5. Meaning of reckless
(1) A person is "reckless" in relation to a
circumstance if
(a) the person is aware of a substantial risk
that the circumstance exists or will exist;
and
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s. 6 Part 1 Preliminary
(b) having regard to the circumstances
known to the person, it is unjustifiable to
take the risk.
(2) A person is "reckless" in relation to a result if
(a) the person is aware of a substantial risk
that the result will happen; and
(b) having regard to the circumstances
known to the person, it is unjustifiable to
take the risk.
(3) It is a question of fact as to whether taking a risk
is unjustifiable.
6. Act binds Crown
(1) This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
(2) Nothing in this Act makes the Crown liable to be
prosecuted for an offence.
7. Relationship to other laws and matters
(1) This Act is not intended to affect any law of this
jurisdiction that authorises, controls or monitors
the conduct of operations wholly within this
jurisdiction
(a) that are for the purpose of obtaining
evidence that may lead to the prosecution
of a person for an offence; and
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Part 1 Preliminary s. 7
(b) that involve, or may involve, conduct for
which participants in the operation would
otherwise be criminally responsible.
(2) This Act is not intended to affect the
investigation of minor matters or investigative
activities in Tasmania that, by their nature, may
involve the participation of law enforcement
officers in activities that may be unlawful.
(3) Subject to subsections (1) and (2), a controlled
operation may be approved only under this Act.
(4) The Commissioner of Police may issue
guidelines to police officers relating to the
conduct of investigations or activities referred to
in subsection (2).
(5) A function conferred in relation to the activities
of the Australian Crime Commission under this
Act is only conferred for the purpose of the
function conferred on the Australian Crime
Commission under the Australian Crime
Commission (Tasmania) Act 2004 relating to
suspected serious and organised crime as defined
under that Act.
(6) Subject to subsection (7), this Act is not intended
to limit a discretion that a court has
(a) to admit or exclude evidence in any
proceedings; or
(b) to stay criminal proceedings in the
interests of justice.
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s. 8 Part 1 Preliminary
(7) In determining whether evidence should be
admitted or excluded in any proceedings, the fact
that the evidence was obtained as a result of a
person engaging in criminal activity is to be
disregarded if
(a) the person was a participant or
corresponding participant acting in the
course of an authorised operation or
corresponding authorised operation; and
(b) the criminal activity was controlled
conduct within the meaning of this Act
or controlled conduct within the meaning
of a corresponding law.
(8) The following Acts do not apply to
investigations, operations, activities and records
under this Act:
(a) the Archives Act 1983;
(b) the Freedom of Information Act 1991;
(c) the Personal Information Protection Act
2004.
8. Controlled operation taken to be conducted in this
jurisdiction
For the purposes of this Act, a controlled
operation in relation to a relevant offence is
taken to be conducted in this jurisdiction,
whether or not it is also conducted in another
jurisdiction, if a participant in the operation is a
law enforcement officer of this jurisdiction.
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Part 2 Authorisation of Controlled Operations s. 9
PART 2 AUTHORISATION OF CONTROLLED
OPERATIONS
9. Applications for authorities to conduct controlled
operations
(1) A law enforcement officer of a law enforcement
agency may apply to the chief officer of the
agency for authority to conduct a controlled
operation on behalf of the agency.
(2) An application for an authority may be made
(a) by means of a written document signed
by the applicant (a "formal
application"); or
(b) if the applicant has reason to believe that
the delay caused by making a formal
application may affect the success of the
operation, orally in person or by
telephone, fax, email or any other means
of communication (an "urgent
application").
(3) Nothing in this Part prevents an application for
an authority being made in respect of a
controlled operation that has been the subject of
a previous application.
(4) In any application, whether formal or urgent, the
applicant must
(a) provide sufficient information to enable
the chief officer to decide whether or not
to grant the application; and
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s. 10 Part 2 Authorisation of Controlled Operations
(b) state whether or not the proposed
operation, or any other controlled
operation in respect of the same criminal
activity, has been the subject of an earlier
application for an authority or variation
of an authority and, if so, whether or not
the authority or variation was granted.
(5) The chief officer may require the applicant to
furnish such additional information concerning
the proposed controlled operation as is necessary
for the chief officer's proper consideration of the
application.
(6) As soon as practicable after making an urgent
application, the applicant must make a record in
writing of the application and give a copy of it to
the chief officer.
10. Determination of applications
(1) After considering an application for authority to
conduct a controlled operation, and any
additional information furnished under
section 9(5), the chief officer
(a) may authorise the operation by granting
the authority, either unconditionally or
subject to conditions; or
(b) may refuse the application.
(2) An authority to conduct a controlled operation
may not be granted unless the chief officer is
satisfied on reasonable grounds
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Part 2 Authorisation of Controlled Operations s. 10
(a) that a relevant offence has been, is being
or is likely to be committed; and
(b) that the controlled operation will be, or is
likely to be, conducted in this
jurisdiction, in this and one or more other
jurisdictions or in one or more
participating jurisdictions; and
(c) that the nature and extent of the
suspected criminal activity are such as to
justify the conduct of a controlled
operation in this jurisdiction, in this and
one or more other jurisdictions or in one
or more participating jurisdictions; and
(d) that any unlawful conduct involved in
conducting the operation will be limited
to the maximum extent consistent with
conducting an effective controlled
operation; and
(e) that the operation will be conducted in a
way that will minimise the risk of more
illicit goods being under the control of
persons, other than law enforcement
officers, at the end of the operation than
are reasonably necessary to enable the
officers to achieve the purpose of the
controlled operation; and
(f) that the proposed controlled conduct will
be capable of being accounted for in a
way that will enable the reporting
requirements of Part 4 to be complied
with; and
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s. 11 Part 2 Authorisation of Controlled Operations
(g) that the operation will not be conducted
in such a way that a person is likely to be
induced to commit an offence against a
law of any jurisdiction or the
Commonwealth that the person would
not otherwise have intended to commit;
and
(h) that any conduct involved in the
operation will not
(i) seriously endanger the health or
safety of any person; or
(ii) cause the death of, or serious
injury to, any person; or
(iii) involve the commission of a
sexual offence against any
person; or
(iv) result in unlawful loss of or
serious damage to property (other
than illicit goods); and
(i) that any role assigned to a civilian
participant in the operation is not one
that could be adequately performed by a
law enforcement officer.
11. Form of authority
(1) An authority to conduct a controlled operation
may be granted
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Part 2 Authorisation of Controlled Operations s. 11
(a) by means of a written document, signed
by the chief officer (a "formal
authority"); or
(b) if the chief officer is satisfied that the
delay caused by granting a formal
authority may affect the success of the
operation, orally in person or by
telephone, fax, email or any other means
of communication (an "urgent
authority").
(2) Nothing in this Part prevents an authority being
granted in respect of a controlled operation that
has been the subject of a previous authority.
(3) An authority, whether formal or urgent, must
(a) state the name and rank or position of the
person granting the authority; and
(b) identify the principal law enforcement
officer and, if the principal law
enforcement officer is not the applicant
for the authority, the name of the
applicant; and
(c) state whether the application is a formal
application or an urgent application; and
(d) identify each person who may engage in
controlled conduct for the purposes of
the controlled operation; and
(e) state the participating jurisdictions in
which the controlled conduct is, or is
likely, to be engaged in; and
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s. 11 Part 2 Authorisation of Controlled Operations
(f) identify the nature of the criminal
activity (including the suspected relevant
offences) in respect of which the
controlled conduct is to be engaged in;
and
(g) identify
(i) with respect to the law
enforcement participants, the
nature of the controlled conduct
that those participants may
engage in; and
(ii) with respect to the civilian
participants, the particular
controlled conduct (if any) that
each such participant may engage
in; and
(h) identify (to the extent known) any
suspect; and
(i) specify the period of validity of the
authority, being a period not exceeding 3
months in the case of a formal authority
or 7 days in the case of an urgent
authority; and
(j) specify any conditions to which the
conduct of the operation is subject; and
(k) state the date and time when the authority
is granted; and
(l) identify (to the extent known)
20
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Act No. of
Part 2 Authorisation of Controlled Operations s. 12
(i) the nature and quantity of any
illicit goods that will be involved
in the operation; and
(ii) the route through which those
goods will pass in the course of
the operation.
(4) A person is sufficiently identified for the
purposes of subsection (3)(d) if the person is
identified
(a) by an assumed name under which the
person is operating; or
(b) by a code name or code number
so long as the assumed name, code name or code
number can be matched to the person's identity.
(5) The chief officer must ensure that written notes
are kept of the particulars referred to in
subsection (3) for each urgent authority.
12. Duration of authorities
Unless it is sooner cancelled, an authority has
effect for the period of validity specified in it in
accordance with section 11(3)(i).
13. Variation of authority
(1) The chief officer may vary an authority
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s. 13 Part 2 Authorisation of Controlled Operations
(a) at any time on the chief officer's own
initiative; or
(b) on application under subsection (3).
(2) However, a variation cannot be made that has
the effect of extending the period of validity of
an urgent authority.
(3) The principal law enforcement officer for an
authorised operation, or any other law
enforcement officer on behalf of the principal
law enforcement officer, may apply to the chief
officer for a variation of authority for any one or
more of the following purposes:
(a) to extend the period of validity of the
authority (except as provided by
subsection (2));
(b) to authorise additional or alternative
persons to engage in controlled conduct
for the purposes of the operation;
(c) to authorise participants in the operation
to engage in additional or alternative
controlled conduct;
(d) to identify additional suspects (to the
extent known).
(4) More than one application for a variation may be
made in respect of the same authority, but no
single variation may extend the period of
validity of an authority for more than 3 months
at a time.
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Part 2 Authorisation of Controlled Operations s. 13
(5) An application for a variation of an authority
may be made
(a) by means of a written document that is
signed by the applicant (a "formal
variation application"); or
(b) if the applicant has reason to believe that
the delay caused by making a formal
variation application may affect the
success of the operation, orally in person
or by telephone, fax, email or any other
means of communication (an "urgent
variation application").
(6) The chief officer may require the applicant to
furnish such information concerning the
proposed variation as is necessary for the chief
officer's proper consideration of the application.
(7) After considering an application for a variation
of authority, and any additional information
furnished under subsection (6), the chief
officer
(a) may vary the authority in accordance
with the application, either
unconditionally or subject to conditions;
or
(b) may refuse the application.
(8) Section 10(2) applies to an application for a
variation of authority under this section in the
same way as it applies to an application for
authority under section 10(1).
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s. 13 Part 2 Authorisation of Controlled Operations
(9) Without limiting subsection (8), a variation of
authority may not be granted unless the chief
officer is satisfied on reasonable grounds that the
variation will not authorise a significant
alteration of the nature of the authorised
operation concerned.
(10) A variation of authority may be granted only
(a) by means of a written document signed
by the chief officer (a "formal variation
of authority"); or
(b) if the person granting the variation is
satisfied that the delay caused by
granting a formal variation of authority
may affect the success of the operation,
orally in person or by telephone, fax,
email or any other means of
communication (an "urgent variation of
authority").
(11) The chief officer
(a) must ensure that written notes are kept of
the following matters:
(i) the date and time when the
variation of authority was
granted;
(ii) the identity of the law
enforcement officer to whom the
variation of authority was
granted;
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Act No. of
Part 2 Authorisation of Controlled Operations s. 14
(iii) particulars of the variations to the
original authority that are
approved under this section; and
(b) must, as soon as practicable, prepare and
give to the applicant a written document
that complies with section 14.
14. Form of variation of authority
A variation of authority must
(a) identify the authorised operation for
which the authority is in force; and
(b) state the name, and rank or position, of
the person granting the variation of
authority; and
(c) if the application for the variation is
made under section 13(3), state the name
of the applicant; and
(d) state whether the application is a formal
variation application or was an urgent
variation application; and
(e) state the date and time when the variation
of authority is or was granted; and
(f) describe the variation having regard to
the purposes referred to in section 13(3)
in respect of which the application was
made.
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s. 15 Part 2 Authorisation of Controlled Operations
15. Cancellation of authorities
(1) The chief officer may, by order in writing given
to the principal law enforcement officer for an
authorised operation, cancel the authority at any
time and for any reason.
(2) Without limiting subsection (1), the chief officer
may cancel an authority for an authorised
operation at any time at the request of the
principal law enforcement officer for the
operation.
(3) Cancellation of an authority for a controlled
operation takes effect at the time when the order
is made or at the later time specified in the order.
16. Effect of authorities
(1) While it has effect, an authority for a controlled
operation
(a) authorises each law enforcement
participant to engage in the controlled
conduct specified in the authority in
respect of the law enforcement
participants; and
(b) authorises each civilian participant (if
any) to engage in the particular
controlled conduct (if any) specified in
the authority in respect of that
participant; and
(c) authorises each participant to engage in
that conduct in this jurisdiction or any
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Act No. of
Part 2 Authorisation of Controlled Operations s. 17
participating jurisdiction (subject to any
corresponding law of that participating
jurisdiction).
(2) The authority to engage in controlled conduct
given to a participant cannot be delegated to any
other person.
17. Defect in authority
An application for authority or variation of
authority, and any authority or variation of
authority granted on the basis of such an
application, is not invalidated by any defect,
other than a defect that affects the application,
authority or variation in a material particular.
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s. 18 Part 3 Conduct of Cross-border Controlled Operations
PART 3 CONDUCT OF CROSS-BORDER
CONTROLLED OPERATIONS
Division 1 Controlled conduct engaged in for purposes of
controlled operations authorised by Part 2
18. Protection from criminal responsibility for
controlled conduct during authorised operations
Despite any other Act or law of this jurisdiction,
a participant who engages in conduct (whether in
this jurisdiction or elsewhere) in an authorised
operation in the course of, and for the purposes
of, the operation is not, if engaging in that
conduct is an offence, criminally responsible for
the offence if
(a) the conduct is authorised by, and is
engaged in accordance with, the
authority for the operation; and
(b) the conduct does not involve the
participant intentionally inducing a
person to commit an offence under a law
of any jurisdiction or the Commonwealth
that the person would not otherwise have
intended to commit; and
(c) the conduct does not involve the
participant engaging in any conduct that
is likely to
(i) cause the death of, or serious
injury to, any person; or
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Part 3 Conduct of Cross-border Controlled Operations s. 19
(ii) involve the commission of a
sexual offence against any
person; and
(d) if the participant is a civilian participant,
he or she acts in accordance with the
instructions of a law enforcement officer.
19. Indemnification of participants against civil liability
(1) This section applies to a law enforcement agency
if a controlled operation has been authorised by
the chief officer of the agency under section 10.
(2) The law enforcement agency must indemnify a
participant in the authorised operation against
any civil liability (including reasonable costs)
that the participant incurs because of conduct
that the participant engages in if
(a) the participant engages in the conduct in
the course of, and for the purposes of, the
operation in accordance with the
authority for the operation; and
(b) the conduct does not involve the
participant intentionally inducing a
person to commit an offence under a law
of any jurisdiction or the Commonwealth
that the person would not otherwise have
intended to commit; and
(c) the conduct does not involve the
participant engaging in any conduct that
is likely to
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s. 20 Part 3 Conduct of Cross-border Controlled Operations
(i) cause the death of, or serious
injury to, any person; or
(ii) involve the commission of a
sexual offence against any
person; and
(d) if the participant is a civilian participant,
he or she acts in accordance with the
instructions of a law enforcement officer;
and
(e) the requirements (if any) specified in the
regulations have been met.
20. Effect of sections 18 and 19 on other laws relating to
criminal investigation
Sections 18 and 19 do not apply to a person's
conduct that is, or could have been, authorised
under a law of this jurisdiction relating to the
following:
(a) arrest or detention of individuals;
(b) searches of individuals;
(c) entry onto, or searches or inspection of,
premises;
(d) searches, inspections or seizures of other
property;
(e) forensic procedures;
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Part 3 Conduct of Cross-border Controlled Operations s. 21
(f) electronic surveillance devices or
telecommunications interception;
(g) identification procedures;
(h) the acquisition or use of assumed
identities;
(i) any other matter concerning powers of
criminal investigation.
21. Effect of being unaware of variation or cancellation
of authority
(1) If an authority for a controlled operation is
varied in a way that limits its scope, this Part
continues to apply to a participant in the
operation as if the authority had not been varied
in that way, for so long as the participant
(a) is unaware of the variation; and
(b) is not reckless about the existence of the
variation.
(2) If an authority for a controlled operation is
cancelled, this Part continues to apply to a
participant in the operation as if the authority
had not been cancelled, for so long as the
participant
(a) is unaware of the cancellation; and
(b) is not reckless about the existence of the
cancellation.
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22. Protection from criminal responsibility for certain
ancillary conduct
(1) This section applies to conduct such as aiding
and abetting the commission of an offence or of
conspiring to commit an offence ("ancillary
conduct") for which a person may be criminally
responsible because it involves conduct engaged
in by another person that is controlled conduct
for which the other person would (but for
section 18) be criminally responsible (the
"related controlled conduct").
(2) Despite any other Act or law of this jurisdiction,
a person who engages in ancillary conduct that is
an offence (whether or not the person is a
participant in a controlled operation) is not
criminally responsible for the offence if at the
time the person engaged in the ancillary conduct
he or she believed the related controlled conduct
was being engaged in, or would be engaged in,
by a participant in an authorised operation.
Division 2 Compensation and notification of third parties
23. Compensation for property loss or serious damage
(1) If a person suffers loss of or serious damage to
property as a direct result of an authorised
operation conducted by the Police Service, the
State is liable to pay to the person compensation
as agreed between the State and the person or, in
default of agreement, as determined by action
against the State in a court of competent
jurisdiction.
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(2) Subsection (1) does not apply if
(a) the person suffered the loss or damage in
the course of, or as a direct result of,
engaging in any criminal activity (other
than criminal activity that is controlled
conduct); or
(b) the person was a law enforcement officer
involved in the authorised operation at
the time of suffering the loss or damage.
24. Notification requirements
(1) If any loss of or serious damage to property
occurs in the course of or as a direct result of an
authorised operation (other than property of the
law enforcement agency on behalf of which the
operation is conducted or a participant in the
operation), the principal law enforcement officer
for the operation must report the loss or damage
to the chief officer of the law enforcement
agency as soon as practicable.
(2) The chief officer must take all reasonable steps
to notify the owner of the property of the loss or
damage.
(3) The chief officer is not required to notify the
owner of property under this section until the
chief officer is satisfied that notification would
not
(a) compromise or hinder the authorised
operation; or
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s. 25 Part 3 Conduct of Cross-border Controlled Operations
(b) compromise the identity of a participant
in the authorised operation; or
(c) endanger the life or safety of any person;
or
(d) prejudice any legal proceedings; or
(e) otherwise be contrary to the public
interest.
Division 3 Mutual recognition
25. Mutual recognition of corresponding authorities
The following provisions apply, with any
necessary changes, to a corresponding authority
under a corresponding law, and to a
corresponding authorised operation under that
law, as if the corresponding authority were an
authority given under section 10:
(a) section 16 (Effect of authorities);
(b) section 17 (Defect in authority);
(c) section 18 (Protection from criminal
responsibility for controlled conduct
during authorised operations);
(d) section 19 (Indemnification of
participants against civil liability);
(e) section 20 (Effect of sections 18 and 19
on other laws relating to criminal
investigation);
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(f) section 21 (Effect of being unaware of
variation or cancellation of authority);
(g) section 22 (Protection from criminal
responsibility for certain ancillary
conduct).
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s. 26 Part 4 Compliance and Monitoring
PART 4 COMPLIANCE AND MONITORING
Division 1 Restrictions on use, communication and
publication of information
26. Unauthorised disclosure of information
(1) A person is guilty of an offence if
(a) the person intentionally, knowingly or
recklessly discloses any information; and
(b) the person knows that, or is reckless as to
whether, the information relates to an
authorised operation or a corresponding
authorised operation; and
(c) the person knows that, or is reckless as to
whether, the disclosure is not made
(i) in connection with the
administration or execution of
this Act or a corresponding law;
or
(ii) for the purposes of any legal
proceeding arising out of or
otherwise related to this Act or a
corresponding law or of any
report of any such proceedings;
or
(iii) in accordance with any
requirement imposed by law.
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Part 4 Compliance and Monitoring s. 27
Penalty: Imprisonment for a term not exceeding
2 years.
(2) A person is guilty of an offence against this
subsection if the person commits an offence
against subsection (1) in circumstances in which
the person
(a) intends to endanger the health or safety
of any person or prejudice the effective
conduct of an authorised operation or a
corresponding authorised operation; or
(b) knows that, or is reckless as to whether,
the disclosure of the information
(i) endangers or will endanger the
health or safety of any person; or
(ii) prejudices or will prejudice the
effective conduct of an authorised
operation or a corresponding
authorised operation.
Penalty: Imprisonment for a term not exceeding
10 years.
Division 2 Reporting and record-keeping
27. Principal law enforcement officers' reports
(1) Within 2 months after the completion of an
authorised operation, the principal law
enforcement officer for the operation must make
a report in accordance with this section to the
chief officer of the law enforcement agency.
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s. 28 Part 4 Compliance and Monitoring
(2) The report must include the following details:
(a) the dates and times when the authorised
operation began and was completed;
(b) the nature of the controlled conduct
engaged in for the purposes of the
operation;
(c) details of the outcome of the operation;
(d) if the operation involved illicit goods, a
statement (to the extent known) of
(i) the nature and quantity of the
illicit goods; and
(ii) the route through which the illicit
goods passed in the course of the
operation;
(e) details of any loss of or serious damage
to property, or any personal injuries,
occurring in the course of or as a direct
result of the operation.
28. Chief officers' annual reports
(1) As soon as practicable after 30 July in each year,
the chief officer of each law enforcement agency
must submit a report to the Minister and the
Minister administering the Police Service Act
2003 setting out the details required by
subsection (2) in relation to controlled operations
conducted on behalf of the agency during the
previous financial year.
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Part 4 Compliance and Monitoring s. 28
(2) The report must include the following details:
(a) the number of formal authorities that
have been granted or varied by the chief
officer, and the number of formal
applications for the granting or variation
of authorities that have been refused by
the chief officer, during the period to
which the report relates;
(b) the number of urgent authorities or
urgent variations of authorities that have
been granted by the chief officer, and the
number of urgent applications for
authorities or urgent variations of
authorities that have been refused by the
chief officer, during the period to which
the report relates;
(c) the nature of the criminal activities
against which the authorised operations
were directed;
(d) the nature of the controlled conduct
engaged in for the purposes of the
authorised operations;
(e) if any of the authorised operations
involved illicit goods, a statement (to the
extent known) of
(i) the nature and quantity of the
illicit goods; and
(ii) the route through which the illicit
goods passed in the course of the
operations;
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Police Powers (Controlled Operations) Act 2006
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s. 28 Part 4 Compliance and Monitoring
(f) details of any loss of or serious damage
to property, or any personal injuries,
occurring in the course of or as a direct
result of the authorised operations;
(g) the number of authorities cancelled by
the chief officer or that have expired
during the period to which the report
relates;
(h) any seizure, arrest and prosecution
arising from the authorised operations.
(3) Either Minister may require the chief officer to
furnish additional information in relation to any
authorised operation to which a report relates.
(4) The details mentioned in subsection (2) must be
classified into controlled operations conducted in
this jurisdiction, in this and one or more other
jurisdictions or in one or more participating
jurisdictions.
(5) The report must not disclose any information
that identifies any suspect or a participant in an
authorised operation or that is likely to lead to
such a person or participant being identified.
(6) Nothing in this section requires particulars of an
authorised operation to be included in a report
for a year if the operation had not been
completed as at 30 June in that year, but the
particulars must instead be included in the report
for the year in which the operation is completed.
(7) The chief officer must advise the Minister of any
information in the report that, in the chief
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Police Powers (Controlled Operations) Act 2006
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officer's opinion, should be excluded from the
report before the report is laid before each House
of Parliament because the information, if made
public, could reasonably be expected to
(a) endanger a person's safety; or
(b) prejudice an investigation or prosecution;
or
(c) compromise any law enforcement
agency's operational activities or
methodologies.
(8) The Minister must exclude information from the
report if satisfied on the advice of the chief
officer of any of the grounds set out in
subsection (7).
(9) The Minister is to cause a copy of the report to
be laid before each House of Parliament within
15 sitting-days from the day on which the report
is received by the Minister.
29. Keeping documents connected with authorised
operations
The chief officer of a law enforcement agency
must cause the following to be kept:
(a) each formal application made by a law
enforcement officer of the agency;
(b) each formal authority granted to a law
enforcement officer of the agency;
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Police Powers (Controlled Operations) Act 2006
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s. 30 Part 4 Compliance and Monitoring
(c) each formal variation application made
by a law enforcement officer of the
agency;
(d) each formal variation of authority
granted to a law enforcement officer of
the agency;
(e) each order cancelling an authority
granted to a law enforcement officer of
the agency;
(f) each report of a principal law
enforcement officer of the agency under
section 24(1) or section 27.
30. General register
(1) The chief officer of a law enforcement agency
must cause a general register to be kept.
(2) The general register is to specify
(a) for each application under this Act made
by a law enforcement officer of the
agency (including an application for
variation of authority)
(i) the date of the application; and
(ii) whether the application was
formal or urgent; and
(iii) whether the application was made
for a controlled operation
conducted in this jurisdiction or
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Part 4 Compliance and Monitoring s. 30
conducted in this jurisdiction and
a participating jurisdiction; and
(iv) whether the application was
granted, refused or withdrawn;
and
(v) if the application was refused or
withdrawn, the date and time of
the refusal or withdrawal; and
(vi) if the authority was varied, the
date and time of the variation;
and
(b) for each authority under this Act granted
to a law enforcement officer of the
agency
(i) the date and time when the
authority was granted; and
(ii) whether the authority was formal
or urgent; and
(iii) whether the application was made
for a controlled operation
conducted in this jurisdiction or
conducted in this jurisdiction and
a participating jurisdiction; and
(iv) the name, and rank or position, of
the person who granted the
authority; and
(v) each relevant offence in respect
of which controlled conduct
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s. 30 Part 4 Compliance and Monitoring
under the authority was to be
engaged in; and
(vi) the period of validity of the
authority; and
(vii) if the authority was cancelled, the
date and time of cancellation; and
(viii) the date and time when the
authorised operation began and
the date of completion of the
operation; and
(ix) the date on which the principal
law enforcement officer for the
operation made a report on the
operation under section 27; and
(x) if the authorised operation
involved illicit goods, to the
extent known
(A) the nature and quantity of
the illicit goods; and
(B) the route through which
the illicit goods passed in
the course of the
operation; and
(xi) details of any loss of or serious
damage to property, or any
personal injuries, occurring in the
course of or as a direct result of
the operation; and
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Police Powers (Controlled Operations) Act 2006
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Part 4 Compliance and Monitoring s. 31
(c) for each variation of authority under this
Act
(i) the date and time when the
variation was made; and
(ii) whether the variation was formal
or urgent; and
(iii) the name, and rank or position, of
the person who made the
variation.
Division 3 Inspections
31. Inspection entity
The Minister is to appoint a person as the
inspection entity for the purposes of this
Division.
32. Inspection of records by inspection entity
(1) The inspection entity must, from time to time
and at least once every 12 months, inspect the
records of a law enforcement agency to
determine the extent of compliance with this Act
by the agency and law enforcement officers of
the agency.
(2) For the purpose of an inspection under this
section, the inspection entity
(a) after notifying the chief officer of the law
enforcement agency, may enter at any
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s. 32 Part 4 Compliance and Monitoring
reasonable time premises occupied by the
agency; and
(b) is entitled to have full and free access at
all reasonable times to all records of the
agency that are relevant to the inspection;
and
(c) may require a member of staff of the
agency to give the inspection entity any
information that the inspection entity
considers necessary, being information
that is in the member's possession, or to
which the member has access, and that is
relevant to the inspection.
(3) The chief officer must ensure that members of
staff of the agency give the inspection entity any
assistance the inspection entity reasonably
requires to enable the inspection entity to
perform or exercise functions under this section.
(4) The inspection entity must make a written report
to the Minister and the Minister administering
the Police Service Act 2003 by not later than 31
July in each year on the results of each
inspection under this section in the preceding
financial year.
(5) The report referred to in subsection (4) is to
include a report on the comprehensiveness and
adequacy of the records of the agency and the
cooperation given by the agency in facilitating
the inspection by the inspection entity of those
records.
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(6) The Minister is to cause a copy of the report to
be laid before each House of Parliament within
15 sitting-days from the day on which the report
is received by the Minister.
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Police Powers (Controlled Operations) Act 2006
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s. 33 Part 5 Miscellaneous
PART 5 MISCELLANEOUS
33. Evidence of authorities
(1) A document purporting to be an authority
granted under section 10
(a) is admissible in any legal proceedings;
and
(b) in the absence of evidence to the
contrary, is proof in any proceedings (not
being criminal or disciplinary
proceedings against a law enforcement
officer) that the person granting the
authority was satisfied of the facts of
which he or she was required to be
satisfied before granting the authority.
(2) A document purporting to be an authority within
the meaning of a corresponding law granted
under a provision of the corresponding law that
corresponds to section 10
(a) is admissible in any legal proceedings in
this jurisdiction; and
(b) in the absence of evidence to the
contrary, is proof in any proceedings (not
being criminal or disciplinary
proceedings against a law enforcement
officer) that the person who granted the
authority was satisfied of the facts of
which he or she was required to be
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Part 5 Miscellaneous s. 34
satisfied under the corresponding law
before granting the authority.
34. Delegation
(1) Except as provided by this section (and despite
any other Act or law to the contrary) the
functions of a chief officer under this Act may
not be delegated to any other person.
(2) A chief officer may delegate to a senior officer
of the law enforcement agency any of the chief
officer's functions under this Act relating to the
authorisation of controlled operations (including
the variation and cancellation of controlled
operations and notifications under section 24(2)).
(3) In this section
"senior officer" means a person for the time
being holding office as
(a) in relation to the Police Service,
any of the following:
(i) the Deputy Commissioner
of Police;
(ii) an Assistant
Commissioner of Police;
or
(b) in relation to the Australian
Crime Commission, any of the
following:
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Police Powers (Controlled Operations) Act 2006
Act No. of
s. 35 Part 5 Miscellaneous
(i) the Director National
Operations;
(ii) a Director;
(iii) an office of the Australian
Crime Commission that is
prescribed by the
regulations.
35. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
(3) The regulations may authorise any matter to be
from time to time determined, applied or
regulated by any person or body specified in the
regulations.
36. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Justice and Workplace
Relations; and
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Police Powers (Controlled Operations) Act 2006
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Part 5 Miscellaneous s. 36
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
Government Printer, Tasmania 51