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PARLIAMENT OF VICTORIA
Crimes (Controlled Operations) Act 2004
Act No.
Victorian Legislation Parliamentary Documents
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
4. Relationship to other laws and matters 6
5. Binding the Crown 7
PART 2--AUTHORISATION OF CONTROLLED OPERATIONS 8
Division 1--Types of Controlled Operations 8
6. What is a controlled operation? 8
7. What is controlled conduct? 8
8. What types of controlled operations may be authorised under
this Act? 8
9. What is a cross-border controlled operation? 8
10. What is a local major controlled operation? 9
11. What is a local minor controlled operation? 9
Division 2--Procedure for Authorising Controlled Operations 10
12. Applications for authorities to conduct controlled operations 10
13. Determination of applications 11
14. Matters to be taken into account--all controlled operations 12
15. Further matters to be taken into account--cross-border
controlled operations 13
16. Further matters to be taken into account--local major
controlled operations 13
17. Further matters to be taken into account--local minor
controlled operations 14
18. Form of authority 15
19. Duration of authorities 17
Division 3--Variation and Cancellation of Authorities 17
20. When can an authority be varied? 17
21. Application for variation of authority 18
22. Determination of application to vary authority 19
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23. Manner of varying authority 20
24. Form of variation of authority 21
25. Cancellation of authorities 21
Division 4--Effect of Authorities 22
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26. Effect of authorities 22
27. Defect in authority 22
PART 3--CONDUCT OF CONTROLLED OPERATIONS 23
Division 1--Controlled Conduct Engaged in for purposes of
Controlled Operations Authorised by Part 2 23
28. Protection from criminal responsibility for controlled conduct
during authorised operations 23
29. Indemnification of participants against civil liability 24
30. Effect of sections 28 and 29 on other laws relating to criminal
investigation 25
31. Effect of being unaware of variation or cancellation of authority 26
32. Protection from criminal responsibility for certain ancillary
conduct 26
Division 2--Compensation and Notification of Third Parties 27
33. Compensation for property loss or serious damage 27
34. Notification requirements 28
Division 3--Mutual Recognition 29
35. Mutual recognition of corresponding authorities 29
PART 4--COMPLIANCE AND MONITORING 30
Division 1--Restrictions on Use, Communication and Publication
of Information 30
36. Unauthorised disclosure of information 30
Division 2--Reporting and Record-keeping 31
37. Principal law enforcement officers' reports 31
38. Chief officers' reports 32
39. Annual report by relevant Ombudsman 34
40. Keeping documents connected with authorised operations 35
41. General register 36
Division 3--Inspections 38
42. Inspection of records by relevant Ombudsman 38
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PART 5--GENERAL 39
Division 1--Delegation 39
43. Introduction 39
44. Delegations within Victoria Police 39
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45. Delegations within Australian Crime Commission 40
Division 2--General 40
46. Evidence of authorities 40
47. Regulations 41
PART 6--FISHERIES ACT 1995 42
48. Repeal of current immunity provision 42
49. New Part 7A inserted 42
PART 7A--CONTROLLED OPERATIONS 42
Division 1--Introduction 42
131A. Definitions 42
131B. Evidentiary matters 44
Division 2--Authorisation of Controlled Operations 45
131C. Applications for authorities to conduct controlled
operations 45
131D. Determination of applications 45
131E. Matters to be taken into account 46
131F. Form of authority 47
Division 3--Variation and Cancellation of Authorities 48
131G. When can an authority be varied? 48
131H. Application for variation of authority 49
131I. Determination of application to vary authority 50
131J. Form of variation of authority 50
131K. Cancellation of authorities 51
Division 4--Effect of Authorities 51
131L. Effect of authorities 51
131M. Defect in authority 51
131N. Effect of being unaware of variation or cancellation of
authority 52
131O. Protection from criminal responsibility for certain
ancillary conduct 53
Division 5--Notification of Third Parties 53
131P. Notification requirements 53
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Division 6--Compliance and Monitoring 54
131Q. Unauthorised disclosure of information 54
131R. Principal law enforcement officers' reports 56
131S. Secretary's reports 56
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131T. Annual report by Ombudsman 58
131U. Keeping documents connected with authorised
operations 60
131V. General register 60
131W. Inspection of records by Ombudsman 62
Division 7--General 62
131X. No delegations 62
131Y. Evidence of authorities 63
131Z. Transitional provision 63
PART 7--WILDLIFE ACT 1975 64
50. Repeal of current immunity provision 64
51. New Part IX inserted 64
PART IX--CONTROLLED OPERATIONS 64
Division 1--Introduction 64
71. Definitions 64
72. Evidentiary matters 66
Division 2--Authorisation of Controlled Operations 66
73. Applications for authorities to conduct controlled
operations 66
74. Determination of applications 67
74A. Matters to be taken into account 67
74B. Form of authority 69
Division 3--Variation and Cancellation of Authorities 70
74C. When can an authority be varied? 70
74D. Application for variation of authority 71
74E. Determination of application to vary authority 72
74F. Form of variation of authority 72
74G. Cancellation of authorities 73
Division 4--Effect of Authorities 73
74H. Effect of authorities 73
74I. Defect in authority 73
74J. Effect of being unaware of variation or cancellation
of authority 74
74K. Protection from criminal responsibility for certain
ancillary conduct 75
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Division 5--Notification of Third Parties 75
74L. Notification requirements 75
Division 6--Compliance and Monitoring 76
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74M. Unauthorised disclosure of information 76
74N. Principal law enforcement officers' reports 78
74O. Secretary's reports 78
74P. Annual report by Ombudsman 80
74Q. Keeping documents connected with authorised
operations 82
74R. General register 82
74S. Inspection of records by Ombudsman 84
Division 7--General 84
74T. No delegations 84
74U. Evidence of authorities 85
74V. Transitional provision 85
PART 8--CONSEQUENTIAL AND TRANSITIONAL 86
52. Crimes Act 1958 86
53. Drugs, Poisons and Controlled Substances Act 1981 86
54. Gambling Regulation Act 2003 86
55. Prostitution Control Act 1994 87
56. Summary Offences Act 1966 87
57. Vagrancy Act 1966 87
58. Transitional provision 88
ENDNOTES 89
INDEX 90
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PARLIAMENT OF VICTORIA
Initiated in Assembly 31 March 2004
As amended by Assembly 6 May 2004
Victorian Legislation Parliamentary Documents
A BILL
to provide for the lawful conduct of controlled operations for law
enforcement purposes, including operations conducted in Victoria and
interstate, to provide for mutual recognition of controlled operations
authorised in other jurisdictions, to amend the Fisheries Act 1995, the
Wildlife Act 1975 and other Acts and for other purposes.
Crimes (Controlled Operations) Act
2004
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to provide for the authorisation, conduct and
monitoring of controlled operations
5
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(including operations conducted in this and
one or more other jurisdictions) for the
purpose of obtaining evidence that may lead
to the prosecution of persons for offences
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and that involve or may involve conduct for
5
which participants in the operation would
otherwise be criminally responsible; and
(b) to facilitate mutual recognition of things
done in relation to cross-border controlled
operations authorised under laws of other
10
jurisdictions corresponding to this Act; and
(c) to provide for the indemnification of
participants in authorised operations against
civil liability in respect of the conduct of the
operations; and
15
(d) to amend the Fisheries Act 1995 and the
Wildlife Act 1975 regarding controlled
operations under those Acts; and
(e) to repeal certain accomplice provisions in
other Acts.
20
2. Commencement
This Act comes into operation on a day or days to
be proclaimed.
3. Definitions
In this Act--
25
"Australian Crime Commission" means
Australian Crime Commission established by
the Australian Crime Commission Act 2002
of the Commonwealth;
"authorised operation" means a controlled
30
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;
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"chief officer" means--
(a) in relation to Victoria Police--the
Chief Commissioner of Police;
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(b) in relation to the Australian Crime
Commission--the Chief Executive
5
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;
10
"conduct" includes any act or omission;
"controlled conduct"--see section 7;
"controlled operation"--see section 6;
"corresponding authorised operation" means
any operation in the nature of a cross-border
15
controlled operation that is authorised by or
under the provisions of a corresponding law;
"corresponding authority" means an authority
authorising a cross-border controlled
operation (within the meaning of a
20
corresponding law) that is in force under the
corresponding law;
"corresponding law" means a law of another
jurisdiction that is declared by the
regulations to correspond to this Act;
25
"corresponding participant" means a person
who is authorised by a corresponding
authority to participate in a corresponding
authorised operation;
"criminal activity" means conduct that involves
30
the commission of an offence by one or more
persons;
"cross-border controlled operation"--see
section 9;
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"formal application"--see section 12(2)(a);
"formal authority"--see section 18(1)(a);
"formal variation application"--see
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section 21(3)(a);
"formal variation of authority"--see
5
section 23(1)(a);
"function" includes a power, authority or duty;
"illicit goods" means goods the possession of
which is a contravention of the law of this
jurisdiction;
10
"jurisdiction" means a State or Territory of the
Commonwealth;
"law enforcement agency" means the following
agencies--
(a) Victoria Police;
15
(b) the Australian Crime Commission;
"law enforcement officer" means--
(a) in relation to Victoria Police--a
member of Victoria Police;
(b) in relation to the Australian Crime
20
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
25
police service or 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;
30
"local major controlled operation"--see
section 10;
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"local minor controlled operation"--see
section 11;
"member" of Victoria Police, means a member
of the force within the meaning of the Police
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Regulation Act 1958;
5
"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
10
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;
15
"relevant offence" means--
(a) an offence against the law of this
jurisdiction punishable by a maximum
term of imprisonment of 3 years or
more; or
20
(b) an offence against the law of this
jurisdiction that is prescribed by the
regulations;
"relevant Ombudsman" means--
(a) the Victorian Ombudsman in relation to
25
Victoria Police;
(b) the Commonwealth Ombudsman in
relation to the Australian Crime
Commission;
"suspect" means a person reasonably suspected
30
of having committed or being likely to have
committed, or of committing or being likely
to be committing, an offence;
"this jurisdiction" means Victoria;
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"urgent application"--see section 12(2)(b);
"urgent authority"--see section 18(1)(b);
"urgent variation application"--see
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section 21(3)(b);
"urgent variation of authority"--see
5
section 23(1)(b);
"Victoria Police" means the force within the
meaning of the Police Regulation Act 1958.
4. Relationship to other laws and matters
(1) This Act is not intended to affect any other law of
10
this jurisdiction that authorises, controls or
monitors the conduct of operations wholly within
this jurisdiction for the purpose of obtaining
evidence that may lead to the prosecution of a
person for an offence and that involve, or may
15
involve, conduct for which participants in the
operation would otherwise be criminally
responsible.
(2) Subject to sub-section (3), this Act is not intended
to limit a discretion that a court has--
20
(a) to admit or exclude evidence in any
proceedings; or
(b) to stay criminal proceedings in the interests
of justice.
(3) In determining whether evidence should be
25
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
30
corresponding participant acting in the
course of an authorised operation or
corresponding authorised operation; and
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(b) the criminal activity was controlled conduct
within the meaning of this Act or controlled
conduct within the meaning of a
corresponding law.
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5. Binding the Crown
5
(1) This Act binds the Crown in right of Victoria and,
so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
(2) Nothing in this Act makes the Crown in any of its
capacities liable to be prosecuted for an offence.
10
__________________
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PART 2--AUTHORISATION OF CONTROLLED
OPERATIONS
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Division 1--Types of Controlled Operations
6. What is a controlled operation?
A "controlled operation" is an operation that--
5
(a) is conducted, or intended to be conducted,
for the purpose of obtaining evidence that
may lead to the prosecution of a person for
an offence; and
(b) involves, or may involve, controlled conduct.
10
7. What is controlled conduct?
In this Act, "controlled conduct" means conduct
for which a person would, but for section 28 or
35, be criminally responsible.
8. What types of controlled operations may be
15
authorised under this Act?
The following types of controlled operations may
be authorised under this Act--
(a) a cross-border controlled operation;
(b) a local major controlled operation;
20
(c) a local minor controlled operation.
9. What is a cross-border controlled operation?
(1) A "cross-border controlled operation" is a
controlled operation--
(a) in respect of an offence that is a relevant
25
offence; and
(b) that is, will be, or is likely to be, conducted
in this jurisdiction and in one or more
participating jurisdictions.
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(2) For the purposes of this Act, a cross-border
controlled operation in respect of a relevant
offence is taken to be conducted in this
jurisdiction (whether or not it is also conducted in
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another jurisdiction) if a participant in the
5
operation is a law enforcement officer of this
jurisdiction.
Note: Sub-section (2) is intended to cover the situation
where an officer of this jurisdiction is conducting an
10 operation in another jurisdiction for the purposes of
investigating a relevant offence of this jurisdiction
(eg: a Victorian officer is investigating a conspiracy
to import drugs into Victoria from NSW, and the
operation is to be conducted wholly in NSW).
10. What is a local major controlled operation?
15
A "local major controlled operation" is a
controlled operation--
(a) in respect of an offence that is a relevant
offence; and
(b) that is or will be conducted wholly in this
20
jurisdiction.
11. What is a local minor controlled operation?
A "local minor controlled operation" is a
controlled operation--
(a) in respect of an offence against the law of
25
this jurisdiction punishable by a maximum
term of imprisonment of less than 3 years, or
by a fine but not imprisonment; and
(b) that is or will be conducted wholly in this
jurisdiction.
30
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Division 2--Procedure for Authorising Controlled
Operations
12. Applications for authorities to conduct controlled
Victorian Legislation Parliamentary Documents
operations
(1) A law enforcement officer of a law enforcement
5
agency may apply to the chief officer of the
agency for authority to conduct a controlled
operation on behalf of the agency.
(2) An application for authority may be made--
(a) by means of a written document signed by
10
the applicant (a "formal application"); or
(b) if the applicant has reason to believe that the
delay caused by making a formal application
may affect the success of the operation--
orally in person or by telephone, fax, e-mail
15
or any other means of communication (an
"urgent application").
(3) Nothing in this Part prevents an application for
authority being made in respect of a controlled
operation that has been the subject of a previous
20
application, but in that case the subsequent
application must be a formal application.
(4) In any application, whether formal or urgent, the
applicant must--
(a) provide sufficient information to enable the
25
chief officer to decide whether or not to
grant the application; and
(b) state whether the proposed operation is a
cross-border controlled operation, a local
major controlled operation or a local minor
30
controlled operation; and
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(c) state whether or not the proposed operation,
or any other controlled operation with
respect to the same criminal activity, has
been the subject of an earlier application for
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an authority or variation of an authority and,
5
if so, whether or not the authority was given
or variation granted and, if so, the type of
controlled operation authorised.
(5) The chief officer may require the applicant to
furnish any additional information concerning the
10
proposed controlled operation that is necessary for
the chief officer's proper consideration of the
application.
(6) As soon as practicable after making an urgent
application, the applicant must make a record in
15
writing of the application and give a copy of it to
the chief officer.
Note: The chief officer may delegate functions under this
section--see Division 1 of Part 5.
13. Determination of applications
20
After considering an application for authority to
conduct a controlled operation, and any additional
information furnished under section 12(5), the
chief officer--
(a) may authorise the operation by granting the
25
authority, either unconditionally or subject to
conditions; or
(b) may refuse the application.
Note: The chief officer may delegate functions under this
30 section--see Division 1 of Part 5.
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14. Matters to be taken into account--all controlled
operations
An authority to conduct a controlled operation
may not be granted unless the chief officer is
Victorian Legislation Parliamentary Documents
satisfied on reasonable grounds--
5
(a) that any unlawful conduct involved in
conducting the operation will be limited to
the maximum extent consistent with
conducting an effective controlled operation;
and
10
(b) that the operation will be conducted in a way
that will minimise the risk of more illicit
goods being under the control of persons
(other than law enforcement officers) at the
end of the operation than are reasonably
15
necessary to enable the officers to achieve
the purpose of the controlled operation; and
(c) that the proposed controlled conduct will be
capable of being accounted for in a way that
will enable the reporting requirements of
20
Part 4 to be complied with; and
(d) that the operation will not be conducted in
such a way that a person is likely to be
induced to commit an offence against a law
of any jurisdiction or the Commonwealth
25
that the person would not otherwise have
intended to commit; and
(e) that any conduct involved in the operation
will not--
(i) seriously endanger the health or safety
30
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
35
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(iv) result in unlawful loss of or serious
damage to property (other than illicit
goods); and
(f) that any role assigned to a civilian participant
Victorian Legislation Parliamentary Documents
in the operation is not one that could be
5
adequately performed by a law enforcement
officer.
Note: Sections 15, 16 and 17 set out further matters to be taken
into account for the different types of controlled operation.
15. Further matters to be taken into account--cross-
10
border controlled operations
(1) An authority to conduct a cross-border controlled
operation may not be granted unless the chief
officer is satisfied on reasonable grounds--
(a) that a relevant offence has been, is being or
15
is likely to be, committed; and
(b) that the controlled operation will be, or is
likely to be, conducted in this jurisdiction
and in one or more participating
jurisdictions; and
20
(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 and in one or more participating
jurisdictions.
25
(2) For the avoidance of doubt, the matters referred to
in sub-section (1) are in addition to the matters
referred to in section 14.
16. Further matters to be taken into account--local
major controlled operations
30
(1) An authority to conduct a local major controlled
operation may not be granted unless the chief
officer is satisfied on reasonable grounds--
(a) that a relevant offence has been, is being or
is likely to be, committed; and
35
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(b) that the controlled operation will be
conducted wholly in this jurisdiction; and
(c) that the nature and extent of the suspected
criminal activity are such as to justify the
Victorian Legislation Parliamentary Documents
conduct of a controlled operation in this
5
jurisdiction.
(2) For the avoidance of doubt, the matters referred to
in sub-section (1) are in addition to the matters
referred to in section 14.
17. Further matters to be taken into account--local
10
minor controlled operations
(1) An authority to conduct a local minor controlled
operation may not be granted unless the chief
officer is satisfied on reasonable grounds--
(a) that an offence against the law of this
15
jurisdiction punishable by a maximum term
of imprisonment of less than 3 years, or by a
fine but not imprisonment, has been, is being
or is likely to be, committed; and
(b) that the controlled operation will be
20
conducted wholly in this jurisdiction; 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.
25
(2) For the avoidance of doubt, the matters referred to
in sub-section (1) are in addition to the matters
referred to in section 14.
(3) An authority to conduct a local minor controlled
operation cannot authorise a participant to engage
30
in controlled conduct that constitutes an offence
punishable by a maximum term of imprisonment
of 3 years or more.
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18. Form of authority
(1) An authority to conduct a controlled operation
may be granted--
Victorian Legislation Parliamentary Documents
(a) by means of a written document, signed by
the chief officer (a "formal authority"); or
5
(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, e-mail or any
other means of communication (an "urgent
10
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, but if
the previous authority was an urgent authority, the
15
subsequent authority must be a formal 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
20
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
25
(d) state whether the operation authorised by the
authority is a cross-border controlled
operation, a local major controlled operation
or a local minor controlled operation; and
(e) identify each person who may engage in
30
controlled conduct for the purposes of the
operation; and
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(f) in the case of a cross-border controlled
operation, state the participating jurisdictions
in which the controlled conduct is, or is
likely, to be engaged in; and
Victorian Legislation Parliamentary Documents
(g) identify the nature of the criminal activity
5
(including the suspected offences) in respect
of which the controlled conduct is to be
engaged in; and
(h) identify--
(i) with respect to the law enforcement
10
participants, the nature of the controlled
conduct that those participants may
engage in; and
(ii) with respect to the civilian participants
(if any), the particular controlled
15
conduct that each of those participants
may engage in; and
(i) identify (to the extent known) any suspect;
and
(j) specify the period of validity of the authority
20
in accordance with section 19; and
(k) specify any conditions to which the conduct
of the operation is subject; and
(l) state the date and time when the authority is
granted; and
25
(m) identify (to the extent known)--
(i) the nature and quantity of any illicit
goods that will be involved in the
operation; and
(ii) the route through which those goods
30
will pass in the course of the operation.
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(4) A person is sufficiently identified for the purposes
of sub-section (3)(e) if the person is identified--
(a) by an assumed name under which the person
is operating; or
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(b) by a code name or code number--
5
so long as the assumed name, code name or code
number can be matched to the person's identity by
the law enforcement agency.
(5) The chief officer must ensure that written notes
are kept of the particulars referred to in sub-
10
section (3) for each urgent authority.
Note: The chief officer may delegate functions under this
section--see Division 1 of Part 5.
19. Duration of authorities
(1) Unless it is sooner cancelled, an authority has
15
effect for the period of validity specified in it
under section 18(3)(j).
(2) The period of validity specified in an authority for
a controlled operation cannot exceed the relevant
period set out in the following table.
20
TABLE
Type of operation Urgent authority Formal authority
cross-border 7 days 3 months
local major 7 days 3 months
local minor 7 days 7 days
Division 3--Variation and Cancellation of Authorities
20. When can an authority be varied?
(1) The chief officer may vary an authority--
(a) at any time on the chief officer's own
initiative; or
25
(b) on application under section 21.
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(2) However, an authority cannot be varied so as to
extend its period of validity if the authority is--
(a) an authority for a local minor controlled
operation (whether formal or urgent); or
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(b) an urgent authority for a cross-border
5
controlled operation or local major
controlled operation.
(3) Also, an authority cannot be varied unless the
chief officer is satisfied on reasonable grounds
that the variation will not authorise a significant
10
alteration of the nature of the authorised operation
concerned.
21. Application for variation of authority
(1) The principal law enforcement officer for an
authorised operation, or any other law
15
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
20
authority (except as provided by
section 20(2));
(b) to authorise additional or alternative persons
to engage in controlled conduct for the
purposes of the operation;
25
(c) to authorise participants in the operation to
engage in additional or alternative controlled
conduct;
(d) to identify additional suspects (to the extent
known).
30
(2) 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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(3) An application for a variation of authority may be
made--
(a) by means of a written document that is
signed by the applicant (a "formal variation
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application"); or
5
(b) if the applicant has reason to believe that the
delay caused by making a formal application
for variation may affect the success of the
operation--orally in person or by telephone,
fax, e-mail or any other means of
10
communication (an "urgent variation
application").
(4) The chief officer may require the applicant to
furnish such information concerning the proposed
variation as is necessary for the chief officer's
15
proper consideration of the application.
Note: The chief officer may delegate functions under this
section--see Division 1 of Part 5.
22. Determination of application to vary authority
(1) After considering an application for a variation of
20
authority, and any additional information
furnished under section 21(4), the chief officer--
(a) may vary the authority in accordance with
the application, either unconditionally or
subject to conditions; or
25
(b) may refuse the application.
(2) Sections 14, 15, 16 and 17 (as the case requires)
apply to an application for a variation of authority
under this section in the same way as they apply
to an application for authority under section 12.
30
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23. Manner of varying authority
(1) An authority may be varied (on application or
otherwise) only--
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(a) by means of a written document signed by
the chief officer (a "formal variation of
5
authority"); or
(b) if the chief officer is satisfied that the delay
caused by making a formal variation of
authority may affect the success of the
operation--orally in person or by telephone,
10
fax, e-mail or any other means of
communication (an "urgent variation of
authority").
(2) The chief officer--
(a) must ensure that written notes are kept of the
15
following matters--
(i) the date and time when the authority
was varied; and
(ii) the identity of the law enforcement
officer to whom the variation of
20
authority was granted; and
(b) must, as soon as practicable, prepare and
give to the applicant a written document that
complies with section 24.
25 Note: The chief officer may delegate functions under this
section--see Division 1 of Part 5.
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24. Form of variation of authority
A variation of authority must--
(a) identify the authorised operation for which
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the authority is in force; and
(b) state the name and rank or position of the
5
person varying the authority; and
(c) state the date and time when the authority
was varied; and
(d) if the authority was varied on an application
under section 21--
10
(i) state the name of the applicant; and
(ii) state whether the application was a
formal variation application or an
urgent variation application; and
(e) describe the variation having regard, if an
15
application for variation was made, to the
purposes referred to in section 21(1) in
respect of which the application was made.
25. Cancellation of authorities
(1) The chief officer may, by order in writing given to
20
the principal law enforcement officer for an
authorised operation, cancel the authority at any
time and for any reason.
(2) Without limiting sub-section (1), the chief officer
may cancel an authority for an authorised
25
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 the order is made
30
or at the later time specified in the order.
Note: The chief officer may delegate functions under this
section--see Division 1 of Part 5.
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Division 4--Effect of Authorities
26. Effect of authorities
(1) While it has effect, an authority for a controlled
Victorian Legislation Parliamentary Documents
operation--
(a) authorises each law enforcement participant
5
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
10
specified in the authority in respect of that
participant.
(2) In the case of a local major or local minor
controlled operation, the authority authorises each
participant to engage in the conduct referred to in
15
sub-section (1) in this jurisdiction.
(3) In the case of a cross-border controlled operation,
the authority authorises each participant to engage
in the conduct referred to in sub-section (1) in this
jurisdiction or in any participating jurisdiction
20
(subject to any corresponding law of that
participating jurisdiction).
(4) The authority to engage in controlled conduct
given to a participant cannot be delegated to any
other person.
25
27. 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
30
than a defect that affects the application, authority
or variation in a material particular.
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PART 3--CONDUCT OF CONTROLLED OPERATIONS
Division 1--Controlled Conduct Engaged in for purposes of
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Controlled Operations Authorised by Part 2
28. Protection from criminal responsibility for
controlled conduct during authorised operations
5
(1) Despite any other Act or law of this jurisdiction, a
participant who engages in conduct 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
10
for the offence, if--
(a) the conduct is authorised by, and is engaged
in in accordance with, the authority for the
operation; and
(b) the conduct does not involve the participant
15
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
20
engaging in any conduct that is likely to--
(i) cause the death of, or serious injury to,
any person; or
(ii) involve the commission of a sexual
offence against any person; and
25
(d) if the participant is a civilian participant--he
or she acts in accordance with the
instructions of a law enforcement officer.
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(2) Sub-section (1) applies in relation to a
participant--
(a) in a local major or local minor controlled
operation--to conduct engaged in by a
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participant in this jurisdiction;
5
(b) in a cross-border controlled operation--to
conduct engaged in by a participant in this
jurisdiction or in a participating jurisdiction.
(3) Sub-section (1) does not apply to a participant in a
local minor controlled operation if the conduct
10
engaged in is an offence punishable by a
maximum term of imprisonment of 3 years or
more.
29. Indemnification of participants against civil liability
(1) This section applies to a law enforcement agency
15
if a controlled operation has been authorised by
the chief officer of the agency under section 13.
(2) The law enforcement agency must indemnify a
participant in the authorised operation against any
civil liability (including reasonable costs) the
20
participant incurs because of conduct 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
25
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
30
otherwise have intended to commit; and
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(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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(ii) involve the commission of a sexual
5
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
10
(e) the requirements (if any) specified in the
regulations have been met.
30. Effect of sections 28 and 29 on other laws relating to
criminal investigation
Sections 28 and 29 do not apply to a person's
15
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;
20
(c) entry onto, or searches or inspection of,
premises;
(d) searches, inspections or seizures of other
property;
(e) forensic procedure;
25
(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
30
criminal investigation.
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31. 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
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apply to a participant in the operation as if the
5
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.
10
(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 in that way, for so long as the
participant--
15
(a) is unaware of the cancellation; and
(b) is not reckless about the existence of the
cancellation.
(3) For the purposes of this section, a person is
reckless about the existence of the variation or
20
cancellation of an authority if--
(a) the person is aware of a substantial risk that
the variation or cancellation has happened;
and
(b) having regard to the circumstances known to
25
the person, it is unjustifiable to take the risk.
32. 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
30
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
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which the other person would (but for section 28)
be criminally responsible (the "related controlled
conduct").
(2) Despite any other Act or law of this jurisdiction, a
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person who engages in ancillary conduct that is an
5
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
10
engaged in, or would be engaged in, by a
participant in an authorised operation.
Division 2--Compensation and Notification of Third Parties
33. Compensation for property loss or serious damage
(1) If a person suffers loss of or serious damage to
15
property as a direct result of an authorised
operation, 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
20
jurisdiction.
(2) Sub-section (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
25
activity that is controlled conduct); or
(b) the person was a law enforcement officer at
the time of suffering the loss or damage.
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34. 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
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law enforcement agency on behalf of which the
5
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.
10
(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
15
chief officer is satisfied that notification would
not--
(a) compromise or hinder the authorised
operation; or
(b) compromise the identity of a participant in
20
the authorised operation; or
(c) endanger the life or safety of any person; or
(d) prejudice any legal proceeding; or
(e) otherwise be contrary to the public interest.
(4) If any personal injury occurs in the course of or as
25
a direct result of an authorised operation, the
principal law enforcement officer for the
operation must report the injury to the chief
officer of the law enforcement agency as soon as
practicable.
30
Note: The chief officer may delegate functions under this
section--see Division 1 of Part 5.
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Division 3--Mutual Recognition
35. Mutual recognition of corresponding authorities
The following provisions apply, with any
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necessary changes, to a corresponding authority
under a corresponding law, and to a corresponding
5
authorised operation under that law, as if the
corresponding authority were an authority given
under section 13 for a cross-border controlled
operation--
(a) section 26 (Effect of authorities);
10
(b) section 27 (Defect in authority);
(c) section 28 (Protection from criminal
responsibility for controlled conduct during
authorised operations);
(d) section 29 (Indemnification of participants
15
against civil liability);
(e) section 30 (Effect of sections 28 and 29 on
other laws relating to criminal investigation);
(f) section 31 (Effect of being unaware of
variation or cancellation of authority);
20
(g) section 32 (Protection from criminal
responsibility for certain ancillary conduct).
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PART 4--COMPLIANCE AND MONITORING
Division 1--Restrictions on Use, Communication and
Victorian Legislation Parliamentary Documents
Publication of Information
36. Unauthorised disclosure of information
(1) A person is guilty of an offence if--
5
(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
10
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
15
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
20
proceedings; or
(iii) in accordance with any requirement
imposed by law; or
(iv) in accordance with Part IVA of the
Police Regulation Act 1958 or Part 5
25
or 6 of the Information Privacy Act
2000.
Penalty: Imprisonment for 2 years.
(2) A person is guilty of an offence against this sub-
section if the person commits an offence against
30
sub-section (1) in circumstances in which the
person--
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(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
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(b) knows that, or is reckless as to whether, the
5
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
10
operation or a corresponding authorised
operation.
Penalty: Imprisonment for 10 years.
(3) An offence against sub-section (2) is an indictable
offence.
15
Division 2--Reporting and Record-keeping
37. 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
20
report in accordance with this section to the chief
officer of the law enforcement agency.
(2) The report must include the following details--
(a) the date and time when the authorised
operation began and its duration; and
25
(b) whether the operation was a cross-border
controlled operation, a local major controlled
operation or a local minor controlled
operation; and
(c) the nature of the controlled conduct engaged
30
in for the purposes of the operation; and
(d) details of the outcome of the operation; and
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(e) if the operation involved illicit goods, a
statement (to the extent known) of--
(i) the nature and quantity of the illicit
goods; and
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(ii) the route through which the illicit goods
5
passed in the course of the operation;
and
(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
10
operation.
38. Chief officers' reports
(1) As soon as practicable after 31 March and
30 September in each year, the chief officer of
each law enforcement agency must submit a
15
report to the relevant Ombudsman in relation to
the agency setting out the details required by sub-
section (2) in relation to authorised operations
conducted on behalf of the agency during the
previous 6 months.
20
(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
25
been refused by the chief officer, during the
period to which the report relates; and
(b) the number of urgent authorities or urgent
variations of authorities that have been
granted by the chief officer, and the number
30
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; and
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(c) the nature of the criminal activities against
which the authorised operations were
directed; and
(d) the nature of the controlled conduct engaged
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in for the purposes of the authorised
5
operations; and
(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
10
goods; and
(ii) the route through which the illicit goods
passed in the course of the operations;
and
(f) details of any loss of or serious damage to
15
property, or any personal injuries, occurring
in the course of or as a direct result of the
authorised operations; and
(g) the number of authorities cancelled by the
chief officer or that have expired during the
20
period to which the report relates.
(3) The details referred to in sub-section (2) must be
classified into cross-border controlled operations,
local major controlled operations and local minor
controlled operations.
25
(4) The relevant Ombudsman may require the chief
officer to furnish additional information covering
any authorised operation to which a report relates.
(5) Nothing in sub-section (2)(d) or (e) requires
particulars of an authorised operation to be
30
included in a report for a period of 6 months if the
operation had not been completed during that
period, but the particulars must instead be
included in the report for the period of 6 months
in which the operation is completed.
35
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39. Annual report by relevant Ombudsman
(1) The relevant Ombudsman in relation to a law
enforcement agency must, as soon as practicable
after 30 June in each year, prepare a report of the
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work and activities of the agency under this Act
5
for the preceding 12 months and give a copy of
the report to the Minister and to the chief officer
of the agency.
(2) The report--
(a) must include, for each law enforcement
10
agency concerned, comments on the
comprehensiveness and adequacy of the
reports which were provided to the relevant
Ombudsman by the chief officer of the law
enforcement agency under section 38; and
15
(b) must not disclose any information that
identifies any suspect or a participant in an
operation or that is likely to lead to such a
person or participant being identified.
(3) The chief officer must advise the relevant
20
Ombudsman of any information in the report that,
in the chief officer's opinion, should be excluded
from the report before the report is laid before
Parliament because the information, if made
public, could reasonably be expected to--
25
(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.
(4) The relevant Ombudsman must exclude
30
information from the report if satisfied on the
advice of the chief officer of any of the grounds
set out in sub-section (3).
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(5) The relevant Ombudsman must transmit the report
to each House of Parliament as soon as practicable
after the earlier of--
(a) the day on which the relevant Ombudsman
Victorian Legislation Parliamentary Documents
received the chief officer's advice under sub-
5
section (3);
(b) 14 days after the day the relevant
Ombudsman gave the report to the chief
officer.
(6) Nothing in this section requires particulars of an
10
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.
15
40. 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
20
enforcement officer of the agency; and
(b) each formal authority granted to a law
enforcement officer of the agency; and
(c) all written notes made under section 18(5);
and
25
(d) each formal variation application made by a
law enforcement officer of the agency; and
(e) each formal variation of authority granted to
a law enforcement officer of the agency; and
(f) all written notes made under
30
section 23(2)(a); and
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(g) each order cancelling an authority granted to
a law enforcement officer of the agency; and
(h) each report of a principal law enforcement
officer of the agency under section 34 or 37.
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41. General register
5
(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
10
(including an application for variation of
authority)--
(i) the date of the application; and
(ii) whether the application was formal or
urgent; and
15
(iii) whether the application was made in
respect of a cross-border controlled
operation, a local major controlled
operation or a local minor controlled
operation; and
20
(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
25
(b) for each authority under this Act granted to a
law enforcement officer of the agency--
(i) the date and time the authority was
granted; and
(ii) whether the authority was formal or
30
urgent; and
(iii) the name and rank or position of the
person who granted the authority; and
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(iv) whether the operation authorised was a
cross-border controlled operation, a
local major controlled operation or a
local minor controlled operation; and
Victorian Legislation Parliamentary Documents
(v) each offence in respect of which
5
controlled conduct 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
10
and time of cancellation; and
(viii) the date and time the authorised
operation began and the date of
completion of the operation; and
(ix) the date on which the principal law
15
enforcement officer for the operation
made a report on the operation under
section 37; and
(x) if the authorised operation involved
illicit goods, to the extent known--
20
(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
25
(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
(c) for each variation of authority under this
30
Act--
(i) the date and time the variation was
made; and
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(ii) whether the variation was formal or
urgent; and
(iii) the name and rank or position of the
person who made the variation.
Victorian Legislation Parliamentary Documents
Division 3--Inspections
5
42. Inspection of records by relevant Ombudsman
(1) The relevant Ombudsman in relation to a law
enforcement agency must, from time to time and
at least once every 12 months, inspect the records
of the agency to determine the extent of
10
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 relevant Ombudsman--
(a) after notifying the chief officer of the
15
agency, may enter at any 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
20
(c) may require a member of staff of the agency
to give the relevant Ombudsman any
information that the relevant Ombudsman
considers necessary, being information that
is in the member's possession, or to which
25
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 relevant Ombudsman
any assistance the relevant Ombudsman
30
reasonably requires to enable the relevant
Ombudsman to perform functions under this
section.
__________________
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PART 5--GENERAL
Division 1--Delegation
Victorian Legislation Parliamentary Documents
43. Introduction
(1) Except as provided by this Division (and despite
any other Act or law to the contrary) the functions
5
of a chief officer under this Act may not be
delegated to any other person.
(2) For the avoidance of doubt, sub-section (1)
prevails over section 6A of the Police Regulation
Act 1958.
10
44. Delegations within Victoria Police
The chief officer of Victoria Police may delegate,
by instrument--
(a) to a Deputy Commissioner or an Assistant
Commissioner any of the chief officer's
15
functions under this Act relating to the
authorisation of controlled operations
(including the variation and cancellation of
authorities for controlled operations and
notifications under section 34(2));
20
(b) to a member of Victoria Police of the rank of
commander, chief superintendent or
superintendent any of the chief officer's
functions under this Act relating to--
(i) the authorisation of local minor
25
controlled operations (including the
variation and cancellation of authorities
for those operations);
(ii) notifications under section 34(2).
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45. Delegations within Australian Crime Commission
(1) The chief officer of the Australian Crime
Commission may delegate to a senior officer of
the Australian Crime Commission any of the chief
Victorian Legislation Parliamentary Documents
officer's functions under this Act relating to the
5
authorisation of controlled operations (including
the variation and cancellation of authorities for
controlled operations and notifications under
section 34(2)).
(2) In this section--
10
"senior officer" of the Australian Crime
Commission, means any of the following--
(a) the Director National Operations;
(b) the General Manager National
Operations;
15
(c) a member of staff of the Australian
Crime Commission who is an SES
employee or acting SES employee
(within the meaning of the Australian
Crime Commission Act 2002 of the
20
Commonwealth) and who holds a
position that is prescribed by the
regulations for the purposes of this
definition.
Division 2--General
25
46. Evidence of authorities
(1) A document purporting to be an authority granted
under section 13--
(a) is admissible in any legal proceedings; and
(b) in the absence of evidence to the contrary, is
30
proof in any proceedings (not being criminal
or disciplinary proceedings against a law
enforcement officer) that the person granting
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the authority was satisfied of the facts he or
she was required to be satisfied of to grant
the authority.
(2) A document purporting to be an authority within
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the meaning of a corresponding law granted under
5
a provision of the corresponding law that
corresponds to section 13--
(a) is admissible in any legal proceedings in this
jurisdiction; and
(b) in the absence of evidence to the contrary, is
10
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 he or she was required to be satisfied of
15
under the corresponding law to grant the
authority.
47. Regulations
(1) The Governor in Council may make regulations
for or with respect to prescribing any matter or
20
thing required or permitted by this Act to be
prescribed or necessary to be prescribed to give
effect to this Act.
(2) The regulations--
(a) may be of general or limited application;
25
(b) may differ according to differences in time,
place or circumstances.
__________________
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PART 6--FISHERIES ACT 1995
48. Repeal of current immunity provision
Victorian Legislation Parliamentary Documents
See: Section 110A of the Fisheries Act 1995 is
Act No.
repealed.
92/1995.
Reprint No. 3
as at
16 November
2002
and
amending
Act Nos
80/2000,
17/2002,
24/2003,
56/2003,
97/2003 and
108/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
49. New Part 7A inserted
5
After Part 7 of the Fisheries Act 1995 insert--
'PART 7A--CONTROLLED OPERATIONS
Division 1--Introduction
131A. Definitions
In this Part--
10
"authorised operation" means a controlled
operation for which an authority is in
force;
"authority" means an authority in force
under this Part, and includes any
15
variation of such an authority;
"conduct" includes any act or omission;
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"controlled conduct" means conduct
which, but for section 131L, would
constitute a relevant offence;
"controlled operation" means an operation
Victorian Legislation Parliamentary Documents
that--
5
(a) is conducted, or intended to be
conducted, for the purpose of
obtaining evidence that may lead
to the prosecution of a person for
a relevant offence; and
10
(b) involves, or may involve,
controlled conduct;
"criminal activity" means conduct that
involves the commission of a relevant
offence by one or more persons;
15
"illicit goods" means goods the possession,
taking, receiving, buying, selling,
consigning, storing or trafficking of
which is a contravention of this Act;
"law enforcement officer" means--
20
(a) an authorised officer; or
(b) a member of the police force;
"participant" in an authorised operation
means a law enforcement officer who is
authorised under an authority to engage
25
in controlled conduct for the purposes
of the operation;
"principal law enforcement officer" for a
controlled operation means the law
enforcement officer who is responsible
30
for the conduct of the operation;
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"relevant offence" means--
(a) an offence against section 36, 37,
40, 42, 44, 67, 68A, 76, 111,
111A to 111C, 114, 116, 119A or
Victorian Legislation Parliamentary Documents
119B; or
5
(b) an offence against the regulations;
"suspect" means a person reasonably
suspected of having committed or being
likely to have committed, or of
committing or being likely to be
10
committing, a relevant offence.
131B. Evidentiary matters
(1) Subject to sub-section (2), this Part is not
intended to limit a discretion that a court
has--
15
(a) to admit or exclude evidence in any
proceedings; or
(b) to stay criminal proceedings in the
interests of justice.
(2) In determining whether evidence should be
20
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 acting in
25
the course of an authorised operation;
and
(b) the criminal activity was controlled
conduct.
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Division 2--Authorisation of Controlled
Operations
131C. Applications for authorities to conduct
Victorian Legislation Parliamentary Documents
controlled operations
(1) The proposed principal law enforcement
5
officer for a controlled operation may apply
to the Secretary for authority to conduct the
operation.
(2) An application for authority must--
(a) be in writing signed by the applicant;
10
and
(b) contain sufficient information to enable
the Secretary to decide whether or not
to grant the application; and
(c) state whether or not the proposed
15
operation, or any other controlled
operation with respect to the same
criminal activity, has been the subject
of an earlier application for an authority
or variation of an authority and, if so,
20
whether or not the authority was given
or variation granted.
(3) The Secretary may require the applicant to
furnish any additional information
concerning the proposed operation that is
25
necessary for the Secretary's proper
consideration of the application.
131D. Determination of applications
After considering an application for authority
to conduct a controlled operation, and any
30
additional information furnished under
section 131C(3), the Secretary--
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(a) may authorise the operation by granting
the authority, either unconditionally or
subject to conditions; or
(b) may refuse the application.
Victorian Legislation Parliamentary Documents
131E. Matters to be taken into account
5
An authority to conduct a controlled
operation may not be granted unless the
Secretary is satisfied on reasonable
grounds--
(a) that a relevant offence has been, is
10
being or is likely to be, committed; and
(b) that the nature and extent of the
suspected criminal activity are such as
to justify the conduct of a controlled
operation; and
15
(c) that any unlawful conduct involved in
conducting the operation will be limited
to the maximum extent consistent with
conducting an effective controlled
operation; and
20
(d) 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
25
operation than are reasonably necessary
to enable the officers to achieve the
purpose of the controlled operation; and
(e) that the proposed controlled conduct
will be capable of being accounted for
30
in a way that will enable the reporting
requirements of Division 6 to be
complied with; and
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(f) that the operation will not be conducted
in such a way that a person is likely to
be induced to commit an offence that
the person would not otherwise have
Victorian Legislation Parliamentary Documents
intended to commit; and
5
(g) 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
10
injury to, any person; or
(iii) result in unlawful loss of or
serious damage to property (other
than illicit goods).
131F. Form of authority
15
(1) An authority to conduct a controlled
operation must--
(a) be in writing signed by the Secretary;
and
(b) identify the principal law enforcement
20
officer for the operation; and
(c) identify each law enforcement officer
who may engage in controlled conduct
for the purposes of the operation; and
(d) identify the nature of the controlled
25
conduct that the participants may
engage in; and
(e) identify the nature of the criminal
activity (including the suspected
offences) in respect of which the
30
controlled conduct is to be engaged in;
and
(f) identify (to the extent known) any
suspect; and
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(g) specify the period of validity of the
authority (which must be a period not
exceeding 3 months); and
(h) specify any conditions to which the
Victorian Legislation Parliamentary Documents
conduct of the operation is subject; and
5
(i) state the date and time when the
authority is granted; and
(j) identify (to the extent known)--
(i) the nature and quantity of any
illicit goods that will be involved
10
in the operation; and
(ii) the route through which those
goods will pass in the course of
the operation.
(2) A person is sufficiently identified for the
15
purposes of sub-section (1)(b) or (c) 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--
20
so long as the assumed name, code name or
code number can be matched to the person's
identity by the Department.
Division 3--Variation and Cancellation of
Authorities
25
131G. When can an authority be varied?
(1) The Secretary may vary an authority--
(a) at any time on the Secretary's own
initiative; or
(b) on application under section 131H.
30
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(2) An authority cannot be varied unless the
Secretary is satisfied on reasonable grounds
that the variation will not authorise a
significant alteration of the nature of the
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authorised operation concerned.
5
131H. Application for variation of authority
(1) The principal law enforcement officer for an
authorised operation, or any other law
enforcement officer on behalf of the
principal law enforcement officer, may apply
10
to the Secretary for a variation of authority
for any one or more of the following
purposes--
(a) to extend the period of validity of the
authority;
15
(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
20
alternative controlled conduct;
(d) to identify additional suspects (to the
extent known).
(2) More than one application for a variation
may be made in respect of the same
25
authority, but no single variation may extend
the period of validity of an authority for
more than 3 months at a time.
(3) An application for a variation of authority
must be in writing signed by the applicant.
30
(4) The Secretary may require the applicant to
furnish such information concerning the
proposed variation as is necessary for the
Secretary's proper consideration of the
application.
35
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131I. Determination of application to vary
authority
(1) After considering an application for a
variation of authority, and any additional
Victorian Legislation Parliamentary Documents
information furnished under section
5
131H(4), the Secretary--
(a) may vary the authority in accordance
with the application; or
(b) may refuse the application.
(2) Section 131E applies to an application for a
10
variation of authority under this section in
the same way as it applies to an application
for authority under section 131C.
131J. Form of variation of authority
A variation of authority must--
15
(a) be in writing signed by the Secretary;
and
(b) identify the authorised operation for
which the authority is in force; and
(c) state the date and time when the
20
authority was varied; and
(d) if the authority was varied on an
application under section 131H, state
the name of the applicant; and
(e) describe the variation having regard, if
25
an application for variation was made,
to the purposes referred to in section
131H(1) in respect of which the
application was made.
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131K. Cancellation of authorities
(1) The Secretary may, by order in writing given
to the principal law enforcement officer for
an authorised operation, cancel the authority
Victorian Legislation Parliamentary Documents
at any time and for any reason.
5
(2) Without limiting sub-section (1), the
Secretary may cancel an authority for an
authorised operation at any time at the
request of the principal law enforcement
officer for the operation.
10
(3) Cancellation of an authority for a controlled
operation takes effect at the time the order is
made or at the later time specified in the
order.
Division 4--Effect of Authorities
15
131L. Effect of authorities
Conduct engaged in by a participant in an
authorised operation which, but for this
section would constitute a relevant offence,
does not have that consequence if the
20
conduct is engaged in in accordance with the
authority for the operation.
131M. Defect in authority
An application for authority or variation of
authority, and any authority or variation of
25
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.
30
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131N. 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
Victorian Legislation Parliamentary Documents
continues to apply to a participant in the
5
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
10
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 in that way, for so
15
long as the participant--
(a) is unaware of the cancellation; and
(b) is not reckless about the existence of
the cancellation.
(3) For the purposes of this section, a person is
20
reckless about the existence of the variation
or cancellation of an authority if--
(a) the person is aware of a substantial risk
that the variation or cancellation has
happened; and
25
(b) having regard to the circumstances
known to the person, it is unjustifiable
to take the risk.
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131O. Protection from criminal responsibility
for certain ancillary conduct
(1) This section applies to conduct such as
aiding and abetting the commission of a
Victorian Legislation Parliamentary Documents
relevant offence or of conspiring to commit a
5
relevant 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
10
person would (but for section 131L) be
criminally responsible (the "related
controlled conduct").
(2) Despite any other Act or law, a person who
engages in ancillary conduct that is an
15
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
20
controlled conduct was being engaged in, or
would be engaged in, by a participant in an
authorised operation.
Division 5--Notification of Third Parties
131P. Notification requirements
25
(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 Department or a participant in the
operation), the principal law enforcement
30
officer for the operation must report the loss
or damage to the Secretary as soon as
practicable.
(2) The Secretary must take all reasonable steps
to notify the owner of the property of the loss
35
or damage.
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(3) The Secretary is not required to notify the
owner of property under this section until the
Secretary is satisfied that notification would
not--
Victorian Legislation Parliamentary Documents
(a) compromise or hinder the authorised
5
operation; or
(b) compromise the identity of a participant
in the authorised operation; or
(c) endanger the life or safety of any
person; or
10
(d) prejudice any legal proceeding; or
(e) otherwise be contrary to the public
interest.
(4) If any personal injury occurs in the course of
or as a direct result of an authorised
15
operation, the principal law enforcement
officer for the operation must report the
injury to the Secretary as soon as practicable.
Division 6--Compliance and Monitoring
131Q. Unauthorised disclosure of information
20
(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
25
to whether, the information relates to an
authorised operation; and
(c) the person knows that, or is reckless as
to whether, the disclosure is not
made--
30
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(i) in connection with the
administration or execution of this
Act; or
(ii) for the purposes of any legal
Victorian Legislation Parliamentary Documents
proceeding arising out of or
5
otherwise related to this Act or of
any report of any such
proceedings; or
(iii) in accordance with any
requirement imposed by law; or
10
(iv) in accordance with Part IVA of
the Police Regulation Act 1958
or Part 5 or 6 of the Information
Privacy Act 2000.
Penalty: Imprisonment for 2 years.
15
(2) A person is guilty of an offence against this
sub-section if the person commits an offence
against sub-section (1) in circumstances in
which the person--
(a) intends to endanger the health or safety
20
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--
25
(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
30
authorised operation.
Penalty: Imprisonment for 10 years.
(3) An offence against sub-section (2) is an
indictable offence.
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131R. Principal law enforcement officers'
reports
(1) Within 2 months after the completion of an
authorised operation, the principal law
Victorian Legislation Parliamentary Documents
enforcement officer for the operation must
5
make a report in accordance with this section
to the Secretary.
(2) The report must include the following
details--
(a) the date and time when the authorised
10
operation began and its duration; and
(b) the nature of the controlled conduct
engaged in for the purposes of the
operation; and
(c) details of the outcome of the operation;
15
and
(d) if the operation involved illicit goods, a
statement (to the extent known) of--
(i) the nature and quantity of the
illicit goods; and
20
(ii) the route through which the illicit
goods passed in the course of the
operation; and
(e) details of any loss of or serious damage to
property, or any personal injuries, occurring
25
in the course of or as a direct result of the
operation.
131S. Secretary's reports
(1) As soon as practicable after 31 March and
30 September in each year, the Secretary
30
must submit a report to the Ombudsman
setting out the details required by sub-
section (2) in relation to authorised
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operations conducted during the previous
6 months.
(2) The report must include the following
details--
Victorian Legislation Parliamentary Documents
(a) the number of authorities that have
5
been granted or varied by the Secretary,
and the number of applications for the
granting or variation of authorities that
have been refused by the Secretary,
during the period to which the report
10
relates; and
(b) the nature of the criminal activities
against which the authorised operations
were directed; and
(c) the nature of the controlled conduct
15
engaged in for the purposes of the
authorised operations; and
(d) if any of the authorised operations
involved illicit goods, a statement (to
the extent known) of--
20
(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; and
25
(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 authorised operations; and
(f) the number of authorities cancelled by
30
the Secretary or that have expired
during the period to which the report
relates.
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(3) The Ombudsman may require the Secretary
to furnish additional information covering
any authorised operation to which a report
relates.
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(4) Nothing in sub-section (2)(c) or (d) requires
5
particulars of an authorised operation to be
included in a report for a period of 6 months
if the operation had not been completed
during that period, but the particulars must
instead be included in the report for the
10
period of 6 months in which the operation is
completed.
131T. Annual report by Ombudsman
(1) The Ombudsman must, as soon as
practicable after 30 June in each year,
15
prepare a report of the work and activities of
law enforcement officers under this Part for
the preceding 12 months and give a copy of
the report to the Minister and the Secretary.
(2) The report--
20
(a) must include comments on the
comprehensiveness and adequacy of the
reports which were provided to the
Ombudsman by the Secretary under
section 131S; and
25
(b) must not disclose any information that
identifies any suspect or a participant in
an operation or that is likely to lead to
such a person or participant being
identified.
30
(3) The Secretary must advise the Ombudsman
of any information in the report that, in the
Secretary's opinion, should be excluded from
the report before the report is laid before
Parliament because the information, if made
35
public, could reasonably be expected to--
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(a) endanger a person's safety; or
(b) prejudice an investigation or
prosecution; or
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(c) compromise any law enforcement
agency's operational activities or
5
methodologies.
(4) The Ombudsman must exclude information
from the report if satisfied on the advice of
the Secretary of any of the grounds set out in
sub-section (3).
10
(5) The Ombudsman must transmit the report to
each House of Parliament as soon as
practicable after the earlier of--
(a) the day on which the Ombudsman
received the Secretary's advice under
15
sub-section (3);
(b) 14 days after the day the Ombudsman
gave the report to the Secretary.
(6) Nothing in this section requires particulars of
an authorised operation to be included in a
20
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.
25
(7) A report under this section may be combined
with a report of the Ombudsman under
section 39 of the Crimes (Controlled
Operations) Act 2004.
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131U. Keeping documents connected with
authorised operations
The Secretary must cause the following to be
kept--
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(a) each application for authority; and
5
(b) each authority; and
(c) each application for variation of
authority; and
(d) each variation of authority; and
(e) each order cancelling an authority; and
10
(f) each report of a principal law
enforcement officer under section 131P
or 131R.
131V. General register
(1) The Secretary must cause a general register
15
to be kept.
(2) The general register is to specify--
(a) for each application for authority or for
variation of authority--
(i) the date of the application; and
20
(ii) whether the application was
granted, refused or withdrawn;
and
(iii) if the application was refused or
withdrawn--the date and time of
25
the refusal or withdrawal; and
(b) for each authority--
(i) the date and time the authority
was granted; and
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(ii) each offence in respect of which
controlled conduct under the
authority was to be engaged in;
and
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(iii) the period of validity of the
5
authority; and
(iv) if the authority was cancelled, the
date and time of cancellation; and
(v) the date and time the authorised
operation began and the date of
10
completion of the operation; and
(vi) the date on which the principal
law enforcement officer for the
operation made a report on the
operation under section 131R; and
15
(vii) if the authorised operation
involved illicit goods, to the
extent known--
(A) the nature and quantity of the
illicit goods; and
20
(B) the route through which the
illicit goods passed in the
course of the operation; and
(viii) details of any loss of or serious
damage to property, or any
25
personal injuries, occurring in the
course of or as a direct result of
the operation; and
(c) for each variation of authority, the date
and time the variation was made.
30
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131W. Inspection of records by Ombudsman
(1) The Ombudsman must, from time to time
and at least once every 12 months, inspect
the records of the Department to determine
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the extent of compliance with this Part by the
5
Secretary and law enforcement officers.
(2) For the purpose of an inspection under this
section, the Ombudsman--
(a) after notifying the Secretary, may enter
at any reasonable time premises
10
occupied by the Department; and
(b) is entitled to have full and free access at
all reasonable times to all records of the
Department that are relevant to the
inspection; and
15
(c) may require a member of staff of the
Department to give the Ombudsman
any information that the Ombudsman
considers necessary, being information
that is in the member's possession, or to
20
which the member has access, and that
is relevant to the inspection.
(3) The Secretary must ensure that members of
staff of the Department give the Ombudsman
any assistance the Ombudsman reasonably
25
requires to enable the Ombudsman to
perform functions under this section.
Division 7--General
131X. No delegations
Despite any other Act or law to the contrary,
30
the functions or powers of the Secretary
under this Part may not be delegated to any
other person.
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131Y. Evidence of authorities
A document purporting to be an authority
granted under section 131D--
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(a) is admissible in any legal proceedings;
and
5
(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 Secretary was satisfied
10
of the facts he or she was required to be
satisfied of to grant the authority.
131Z. Transitional provision
An authority may be given under this Part
for a controlled operation in relation to
15
criminal activity occurring before, on or after
the commencement of this Part.'.
__________________
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PART 7--WILDLIFE ACT 1975
50. Repeal of current immunity provision
Victorian Legislation Parliamentary Documents
See: Section 63 of the Wildlife Act 1975 is repealed.
Act No.
8699.
Reprint No. 7
as at
16 November
2002
and
amending
Act No.
9/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
51. New Part IX inserted
After Part VIII of the Wildlife Act 1975 insert--
5
'PART IX--CONTROLLED OPERATIONS
Division 1--Introduction
71. Definitions
In this Part--
"authorised operation" means a controlled
10
operation for which an authority is in
force;
"authority" means an authority in force
under this Part, and includes any
variation of such an authority;
15
"conduct" includes any act or omission;
"controlled conduct" means conduct
which, but for section 74H, would
constitute a relevant offence;
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"controlled operation" means an operation
that--
(a) is conducted, or intended to be
conducted, for the purpose of
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obtaining evidence that may lead
5
to the prosecution of a person for
a relevant offence; and
(b) involves, or may involve,
controlled conduct;
"criminal activity" means conduct that
10
involves the commission of a relevant
offence by one or more persons;
"illicit goods" means goods the possession,
taking, receiving, buying, selling,
consigning, storing or trafficking of
15
which is a contravention of this Act;
"law enforcement officer" means--
(a) an authorised officer; or
(b) a member of the police force; or
(c) a member of a police force of the
20
Commonwealth or of another
State or a Territory;
"participant" in an authorised operation
means a law enforcement officer who is
authorised under an authority to engage
25
in controlled conduct for the purposes
of the operation;
"principal law enforcement officer" for a
controlled operation means the law
enforcement officer who is responsible
30
for the conduct of the operation;
"relevant offence" means an offence
against section 41, 42, 43, 45, 46, 47,
47D, 50, 51 or 76;
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"suspect" means a person reasonably
suspected of having committed or being
likely to have committed, or of
committing or being likely to be
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committing, a relevant offence.
5
72. Evidentiary matters
(1) Subject to sub-section (2), this Part is not
intended to limit a discretion that a court
has--
(a) to admit or exclude evidence in any
10
proceedings; or
(b) to stay criminal proceedings in the
interests of justice.
(2) In determining whether evidence should be
admitted or excluded in any proceedings, the
15
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 acting in
the course of an authorised operation;
20
and
(b) the criminal activity was controlled
conduct.
Division 2--Authorisation of Controlled
Operations
25
73. Applications for authorities to conduct
controlled operations
(1) The proposed principal law enforcement
officer for a controlled operation may apply
to the Secretary for authority to conduct the
30
operation.
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(2) An application for authority must--
(a) be in writing signed by the applicant;
and
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(b) contain sufficient information to enable
the Secretary to decide whether or not
5
to grant the application; and
(c) state whether or not the proposed
operation, or any other controlled
operation with respect to the same
criminal activity, has been the subject
10
of an earlier application for an authority
or variation of an authority and, if so,
whether or not the authority was given
or variation granted.
(3) The Secretary may require the applicant to
15
furnish any additional information
concerning the proposed operation that is
necessary for the Secretary's proper
consideration of the application.
74. Determination of applications
20
After considering an application for authority
to conduct a controlled operation, and any
additional information furnished under
section 73(3), the Secretary--
(a) may authorise the operation by granting
25
the authority, either unconditionally or
subject to conditions; or
(b) may refuse the application.
74A. Matters to be taken into account
An authority to conduct a controlled
30
operation may not be granted unless the
Secretary is satisfied on reasonable
grounds--
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(a) that a relevant offence has been, is
being or is likely to be, committed; and
(b) that the nature and extent of the
suspected criminal activity are such as
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to justify the conduct of a controlled
5
operation; and
(c) that any unlawful conduct involved in
conducting the operation will be limited
to the maximum extent consistent with
conducting an effective controlled
10
operation; and
(d) 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
15
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
(e) that the proposed controlled conduct
20
will be capable of being accounted for
in a way that will enable the reporting
requirements of Division 6 to be
complied with; and
(f) that the operation will not be conducted
25
in such a way that a person is likely to
be induced to commit an offence that
the person would not otherwise have
intended to commit; and
(g) that any conduct involved in the
30
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
35
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(iii) result in unlawful loss of or
serious damage to property (other
than illicit goods).
74B. Form of authority
Victorian Legislation Parliamentary Documents
(1) An authority to conduct a controlled
5
operation must--
(a) be in writing under the seal of the
Secretary; and
(b) identify the principal law enforcement
officer for the operation; and
10
(c) identify each law enforcement officer
who may engage in controlled conduct
for the purposes of the operation; and
(d) identify the nature of the controlled
conduct that the participants may
15
engage in; and
(e) identify the nature of the criminal
activity (including the suspected
offences) in respect of which the
controlled conduct is to be engaged in;
20
and
(f) identify (to the extent known) any
suspect; and
(g) specify the period of validity of the
authority (which must be a period not
25
exceeding 3 months); and
(h) specify any conditions to which the
conduct of the operation is subject; and
(i) state the date and time when the
authority is granted; and
30
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(j) identify (to the extent known)--
(i) the nature and quantity of any
illicit goods that will be involved
in the operation; and
Victorian Legislation Parliamentary Documents
(ii) the route through which those
5
goods will pass in the course of
the operation.
(2) A person is sufficiently identified for the
purposes of sub-section (1)(b) or (c) if the
person is identified--
10
(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
15
identity by the Department.
Division 3--Variation and Cancellation of
Authorities
74C. When can an authority be varied?
(1) The Secretary may vary an authority--
20
(a) at any time on the Secretary's own
initiative; or
(b) on application under section 74D.
(2) An authority cannot be varied unless the
Secretary is satisfied on reasonable grounds
25
that the variation will not authorise a
significant alteration of the nature of the
authorised operation concerned.
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74D. Application for variation of authority
(1) The principal law enforcement officer for an
authorised operation, or any other law
enforcement officer on behalf of the
Victorian Legislation Parliamentary Documents
principal law enforcement officer, may apply
5
to the Secretary for a variation of authority
for any one or more of the following
purposes--
(a) to extend the period of validity of the
authority;
10
(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
15
alternative controlled conduct;
(d) to identify additional suspects (to the
extent known).
(2) More than one application for a variation
may be made in respect of the same
20
authority, but no single variation may extend
the period of validity of an authority for
more than 3 months at a time.
(3) An application for a variation of authority
must be in writing signed by the applicant.
25
(4) The Secretary may require the applicant to
furnish such information concerning the
proposed variation as is necessary for the
Secretary's proper consideration of the
application.
30
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74E. Determination of application to vary
authority
(1) After considering an application for a
variation of authority, and any additional
Victorian Legislation Parliamentary Documents
information furnished under section 74D(4),
5
the Secretary--
(a) may vary the authority in accordance
with the application; or
(b) may refuse the application.
(2) Section 74A applies to an application for a
10
variation of authority under this section in
the same way as it applies to an application
for authority under section 73.
74F. Form of variation of authority
A variation of authority must--
15
(a) be in writing under the seal of the
Secretary; and
(b) identify the authorised operation for
which the authority is in force; and
(c) state the date and time when the
20
authority was varied; and
(d) if the authority was varied on an
application under section 74D, state the
name of the applicant; and
(e) describe the variation having regard, if
25
an application for variation was made,
to the purposes referred to in
section 74D(1) in respect of which the
application was made.
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74G. Cancellation of authorities
(1) The Secretary may, by order in writing given
to the principal law enforcement officer for
an authorised operation, cancel the authority
Victorian Legislation Parliamentary Documents
at any time and for any reason.
5
(2) Without limiting sub-section (1), the
Secretary may cancel an authority for an
authorised operation at any time at the
request of the principal law enforcement
officer for the operation.
10
(3) Cancellation of an authority for a controlled
operation takes effect at the time the order is
made or at the later time specified in the
order.
Division 4--Effect of Authorities
15
74H. Effect of authorities
Conduct engaged in by a participant in an
authorised operation which, but for this
section would constitute a relevant offence,
does not have that consequence if the
20
conduct is engaged in in accordance with the
authority for the operation.
74I. Defect in authority
An application for authority or variation of
authority, and any authority or variation of
25
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.
30
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74J. 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
Victorian Legislation Parliamentary Documents
continues to apply to a participant in the
5
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
10
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 in that way, for so
15
long as the participant--
(a) is unaware of the cancellation; and
(b) is not reckless about the existence of
the cancellation.
(3) For the purposes of this section, a person is
20
reckless about the existence of the variation
or cancellation of an authority if--
(a) the person is aware of a substantial risk
that the variation or cancellation has
happened; and
25
(b) having regard to the circumstances
known to the person, it is unjustifiable
to take the risk.
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74K. Protection from criminal responsibility
for certain ancillary conduct
(1) This section applies to conduct such as
aiding and abetting the commission of a
Victorian Legislation Parliamentary Documents
relevant offence or of conspiring to commit a
5
relevant 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
10
person would (but for section 74H) be
criminally responsible (the "related
controlled conduct").
(2) Despite any other Act or law, a person who
engages in ancillary conduct that is an
15
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
20
controlled conduct was being engaged in, or
would be engaged in, by a participant in an
authorised operation.
Division 5--Notification of Third Parties
74L. Notification requirements
25
(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 Department or a participant in the
operation), the principal law enforcement
30
officer for the operation must report the loss
or damage to the Secretary as soon as
practicable.
(2) The Secretary must take all reasonable steps
to notify the owner of the property of the loss
35
or damage.
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(3) The Secretary is not required to notify the
owner of property under this section until the
Secretary is satisfied that notification would
not--
Victorian Legislation Parliamentary Documents
(a) compromise or hinder the authorised
5
operation; or
(b) compromise the identity of a participant
in the authorised operation; or
(c) endanger the life or safety of any
person; or
10
(d) prejudice any legal proceeding; or
(e) otherwise be contrary to the public
interest.
(4) If any personal injury occurs in the course of
or as a direct result of an authorised
15
operation, the principal law enforcement
officer for the operation must report the
injury to the Secretary as soon as practicable.
Division 6--Compliance and Monitoring
74M. Unauthorised disclosure of information
20
(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
25
to whether, the information relates to an
authorised operation; and
(c) the person knows that, or is reckless as
to whether, the disclosure is not
made--
30
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(i) in connection with the
administration or execution of this
Act; or
(ii) for the purposes of any legal
Victorian Legislation Parliamentary Documents
proceeding arising out of or
5
otherwise related to this Act or of
any report of any such
proceedings; or
(iii) in accordance with any
requirement imposed by law; or
10
(iv) in accordance with Part IVA of
the Police Regulation Act 1958
or Part 5 or 6 of the Information
Privacy Act 2000.
Penalty: Imprisonment for 2 years.
15
(2) A person is guilty of an offence against this
sub-section if the person commits an offence
against sub-section (1) in circumstances in
which the person--
(a) intends to endanger the health or safety
20
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--
25
(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
30
authorised operation.
Penalty: Imprisonment for 10 years.
(3) An offence against sub-section (2) is an
indictable offence.
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74N. Principal law enforcement officers'
reports
(1) Within 2 months after the completion of an
authorised operation, the principal law
Victorian Legislation Parliamentary Documents
enforcement officer for the operation must
5
make a report in accordance with this section
to the Secretary.
(2) The report must include the following
details--
(a) the date and time when the authorised
10
operation began and its duration; and
(b) the nature of the controlled conduct
engaged in for the purposes of the
operation; and
(c) details of the outcome of the operation;
15
and
(d) if the operation involved illicit goods, a
statement (to the extent known) of--
(i) the nature and quantity of the
illicit goods; and
20
(ii) the route through which the illicit
goods passed in the course of the
operation; and
(e) details of any loss of or serious damage to
property, or any personal injuries, occurring
25
in the course of or as a direct result of the
operation.
74O. Secretary's reports
(1) As soon as practicable after 31 March and
30 September in each year, the Secretary
30
must submit a report to the Ombudsman
setting out the details required by sub-
section (2) in relation to authorised
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operations conducted during the previous
6 months.
(2) The report must include the following
details--
Victorian Legislation Parliamentary Documents
(a) the number of authorities that have
5
been granted or varied by the Secretary,
and the number of applications for the
granting or variation of authorities that
have been refused by the Secretary,
during the period to which the report
10
relates; and
(b) the nature of the criminal activities
against which the authorised operations
were directed; and
(c) the nature of the controlled conduct
15
engaged in for the purposes of the
authorised operations; and
(d) if any of the authorised operations
involved illicit goods, a statement (to
the extent known) of--
20
(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; and
25
(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 authorised operations; and
(f) the number of authorities cancelled by
30
the Secretary or that have expired
during the period to which the report
relates.
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(3) The Ombudsman may require the Secretary
to furnish additional information covering
any authorised operation to which a report
relates.
Victorian Legislation Parliamentary Documents
(4) Nothing in sub-section (2)(c) or (d) requires
5
particulars of an authorised operation to be
included in a report for a period of 6 months
if the operation had not been completed
during that period, but the particulars must
instead be included in the report for the
10
period of 6 months in which the operation is
completed.
74P. Annual report by Ombudsman
(1) The Ombudsman must, as soon as
practicable after 30 June in each year,
15
prepare a report of the work and activities of
law enforcement officers under this Part for
the preceding 12 months and give a copy of
the report to the Minister and the Secretary.
(2) The report--
20
(a) must include comments on the
comprehensiveness and adequacy of the
reports which were provided to the
Ombudsman by the Secretary under
section 74O; and
25
(b) must not disclose any information that
identifies any suspect or a participant in
an operation or that is likely to lead to
such a person or participant being
identified.
30
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(3) The Secretary must advise the Ombudsman
of any information in the report that, in the
Secretary's opinion, should be excluded from
the report before the report is laid before
Victorian Legislation Parliamentary Documents
Parliament because the information, if made
5
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
10
agency's operational activities or
methodologies.
(4) The Ombudsman must exclude information
from the report if satisfied on the advice of
the Secretary of any of the grounds set out in
15
sub-section (3).
(5) The Ombudsman must transmit the report to
each House of Parliament as soon as
practicable after the earlier of--
(a) the day on which the Ombudsman
20
received the Secretary's advice under
sub-section (3);
(b) 14 days after the day the Ombudsman
gave the report to the Secretary.
(6) Nothing in this section requires particulars of
25
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
30
completed.
(7) A report under this section may be combined
with a report of the Ombudsman under
section 39 of the Crimes (Controlled
Operations) Act 2004.
35
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74Q. Keeping documents connected with
authorised operations
The Secretary must cause the following to be
kept--
Victorian Legislation Parliamentary Documents
(a) each application for authority; and
5
(b) each authority; and
(c) each application for variation of
authority; and
(d) each variation of authority; and
(e) each order cancelling an authority; and
10
(f) each report of a principal law
enforcement officer under section 74L
or 74N.
74R. General register
(1) The Secretary must cause a general register
15
to be kept.
(2) The general register is to specify--
(a) for each application for authority or for
variation of authority--
(i) the date of the application; and
20
(ii) whether the application was
granted, refused or withdrawn;
and
(iii) if the application was refused or
withdrawn--the date and time of
25
the refusal or withdrawal; and
(b) for each authority--
(i) the date and time the authority
was granted; and
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(ii) each offence in respect of which
controlled conduct under the
authority was to be engaged in;
and
Victorian Legislation Parliamentary Documents
(iii) the period of validity of the
5
authority; and
(iv) if the authority was cancelled, the
date and time of cancellation; and
(v) the date and time the authorised
operation began and the date of
10
completion of the operation; and
(vi) the date on which the principal
law enforcement officer for the
operation made a report on the
operation under section 74N; and
15
(vii) if the authorised operation
involved illicit goods, to the
extent known--
(A) the nature and quantity of the
illicit goods; and
20
(B) the route through which the
illicit goods passed in the
course of the operation; and
(viii) details of any loss of or serious
damage to property, or any
25
personal injuries, occurring in the
course of or as a direct result of
the operation; and
(c) for each variation of authority, the date
and time the variation was made.
30
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74S. Inspection of records by Ombudsman
(1) The Ombudsman must, from time to time
and at least once every 12 months, inspect
the records of the Department to determine
Victorian Legislation Parliamentary Documents
the extent of compliance with this Part by the
5
Secretary and law enforcement officers.
(2) For the purpose of an inspection under this
section, the Ombudsman--
(a) after notifying the Secretary, may enter
at any reasonable time premises
10
occupied by the Department; and
(b) is entitled to have full and free access at
all reasonable times to all records of the
Department that are relevant to the
inspection; and
15
(c) may require a member of staff of the
Department to give the Ombudsman
any information that the Ombudsman
considers necessary, being information
that is in the member's possession, or to
20
which the member has access, and that
is relevant to the inspection.
(3) The Secretary must ensure that members of
staff of the Department give the Ombudsman
any assistance the Ombudsman reasonably
25
requires to enable the Ombudsman to
perform functions under this section.
Division 7--General
74T. No delegations
Despite any other Act or law to the contrary,
30
the functions or powers of the Secretary
under this Part may not be delegated to any
other person.
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74U. Evidence of authorities
A document purporting to be an authority
granted under section 74--
Victorian Legislation Parliamentary Documents
(a) is admissible in any legal proceedings;
and
5
(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 Secretary was satisfied
10
of the facts he or she was required to be
satisfied of to grant the authority.
74V. Transitional provision
An authority may be given under this Part
for a controlled operation in relation to
15
criminal activity occurring before, on or after
the commencement of this Part.'.
__________________
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s. 52
PART 8--CONSEQUENTIAL AND TRANSITIONAL
See: 52. Crimes Act 1958
Act No.
Victorian Legislation Parliamentary Documents
6231.
Sections 68(2), 194(5) and 195A(5) of the Crimes
Reprint No. 17
Act 1958 are repealed.
as at
17 June 2003
and
amending
Act Nos
63/2003,
80/2003,
104/2003 and
105/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
See: 53. Drugs, Poisons and Controlled Substances Act 1981
5 Act No.
9719.
Section 51 of the Drugs, Poisons and Controlled
Reprint No. 6
Substances Act 1981 is repealed.
as at
14 February
2002
and
amending
Act Nos
11/2002,
55/2003,
56/2003,
63/2003 and
67/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
See: 54. Gambling Regulation Act 2003
Act No.
114/2003.
Section 2.6.8 of the Gambling Regulation Act
LawToday:
2003 is repealed.
10 www.dms.
dpc.vic.
gov.au
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s. 55
55. Prostitution Control Act 1994 See:
Act No.
Section 14(2) of the Prostitution Control Act 102/1994.
Reprint No. 5
1994 is repealed. as at
Victorian Legislation Parliamentary Documents
20 September
2001
and
amending
Act No.
52/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
See:
56. Summary Offences Act 1966 Act No.
7405.
Section 58 of the Summary Offences Act 1966 is
5 Reprint No. 8
repealed. as at
1 January
2003
and
amending
Act Nos
10/2003 and
80/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
See:
57. Vagrancy Act 1966 Act No.
7393.
Section 17 of the Vagrancy Act 1966 is repealed. Reprint No. 4
as at
14 March
1996
and
amending
Act Nos
47/2000 and
74/2000.
LawToday:
www.dms.
dpc.vic.
gov.au
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58. Transitional provision
An authority may be given under this Act for a
controlled operation in relation to criminal activity
occurring before, on or after the commencement
Victorian Legislation Parliamentary Documents
of this section.
5
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Endnotes
ENDNOTES
Victorian Legislation Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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INDEX
Subject Section
Act
Victorian Legislation Parliamentary Documents
amendments to other Acts 4857
commencement 2
Crown bound by 5
purposes 1
relationship to other laws and matters 4
transitional provision 58
39
Annual reports
Australian Crime Commission
See Chief officers; Law enforcement agencies
Authorised operations (def.) 3
Chief officers
definition 3
delegation by 4345
powers and duties regarding
authorities controlled operations 1225
general register 41
notification of property loss, damage, injuries 34
records 40, 42
reports regarding authorised operations 3839
retention of documents 40
2931
Civil liability
Civilian participants (def.) 3
Compensation
for property loss, serious damage 33
Controlled conduct See Controlled operations
Controlled operations
controlled conduct
ancillary conduct 32
definition 7
indemnification against civil liability 2931
protection from criminal responsibility 28, 3032
cross-border controlled operations (def.) 9
definition 6
evidence 4
local major controlled operations (def.) 10
local minor controlled operations (def.) 11
property damage, personal injuries in course of 3334
protection of participants in 2832
reports 3739
types of 8
Controlled operations - Authorities
applications formal, urgent 12
cancellation 25, 31
defects 27
definition of authority 3
determination of applications 13
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Subject Section
duration 18, 19
effect of 26
evidence 46
extension 20, 21
Victorian Legislation Parliamentary Documents
form formal, urgent 18
matters to be taken into account 1417
reports and records 38, 4042
variation
applications formal, urgent 21
determinations 22
effect of being unaware 31
grounds for, time for making 20
manner and form 2324
3, 35
Corresponding authorised operations
3, 35
Corresponding authorities
3, 46
Corresponding laws
Corresponding participants (def.) 3
Criminal responsibility
protection from 28, 3032
Cross-border controlled operations
See Controlled operations
3, 6, 7, 912, 18,
Definitions
21, 23, 32, 45
4, 46
Evidence
Fisheries Act 1995
amendments to 4849
41
General register
Illicit goods (def.) 3
Injuries See Personal injuries
Law enforcement agencies
definition 3
indemnification of participants in authorised
operations 29
Ombudsman's report of operations 39
See also Chief officers
3, 12, 21, 23
Law enforcement officers
See also Principal law enforcement officers
Law enforcement participants (def.) 3
Local major controlled operations
See Controlled operations
Local minor controlled operations
See Controlled operations
35
Mutual recognition
Offences
disclosure of information 36
relevant offence (def.) 3
38, 39, 42
Ombudsman
definition of relevant Ombudsman 3
34, 3738, 41
Personal injuries
Police See Law enforcement officers
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Subject Section
Principal law enforcement officers
definition 3
powers and duties regarding
notification of personal injury, property loss 34
Victorian Legislation Parliamentary Documents
reports of authorised operations 37
requests for cancellation of authorities 25
variation of authorities 21
Property
compensation for loss, serious damage 33
details in reports, general register 3738, 41
notification of loss, serious damage 34
Records
general register 41
inspection of 42
retention of documents 40
Register See General register
47
Regulations
3739
Reports
58
Transitional provision
Victoria Police
See Chief officers; Law enforcement agencies
Wildlife Act 1975
amendments to 5051
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