Victorian Consolidated Legislation

Crimes (Controlled Operations) Act 2004 - SECT 49

New Part 7A inserted

49. New Part 7A inserted

After Part 7 of the Fisheries Act 1995 insert- "PART 7A-CONTROLLED OPERATIONS
Division 1-Introduction
131A. Definitions In this Part- 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 variation of such an authority;
conduct includes any act or omission; controlled conduct means conduct which,
but for section 131L, would constitute a relevant offence; controlled
operation means an operation that-

   (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

   (b)  involves, or may involve, controlled conduct; criminal activity means
        conduct that 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
        which is a contravention of this Act; law enforcement officer means-

   (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 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 for the conduct of the
        operation;

relevant offence means-

   (a)  an offence against section 36, 37, 40, 42, 44, 67, 68A, 68B, 76, 111,
        111A to 111C, 114, 116, 119A or 119B; or

   (aa) an associated offence in relation to any offence listed in paragraph
        (a); or

   (b)  an offence against the regulations; Special Investigations Monitor
        means the Special Investigations Monitor appointed under the
        Major Crime (Special Investigations Monitor) Act 2004; suspect means a
        person reasonably suspected of having committed or being likely to
        have committed, or of committing or being likely to be committing, a
        relevant offence.
131B. Evidentiary matters

(1) Subject to subsection (2), this Part is not intended to limit a discretion
that a court has-

   (a)  to admit or exclude evidence in any proceedings; or

   (b)  to stay criminal proceedings in the interests of justice.

(2) In determining whether evidence should be admitted or excluded in any
proceedings, the fact that the evidence was obtained as a result of a person
engaging in criminal activity is to be disregarded if-

   (a)  the person was a participant acting in the course of an authorised
        operation; and

   (b)  the criminal activity was controlled conduct. Division 2-Authorisation
        of controlled operations
131C. 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 operation.

(2) An application for authority must-

   (a)  be in writing signed by the applicant; 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 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, 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 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 additional information
furnished under section 131C(3), the Secretary-

   (a)  may authorise the operation by granting the authority, either
        unconditionally or subject to conditions; or

   (b)  may refuse the application.
131E. Matters to be taken into account 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 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

   (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

   (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 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 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 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 operation will not-

   (i)  seriously endanger the health or safety of any person; or

   (ii) cause the death of, or serious injury to, any person; or

   (iii) result in unlawful loss of or serious damage to property (other than
        illicit goods).
131F. Form of authority

(1) An authority to conduct a controlled operation must-

   (a)  be in writing signed by the Secretary; and

   (b)  identify the principal law enforcement 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 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 controlled conduct is to be engaged
        in; 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 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

   (j)  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 will pass in the course of the
        operation.

(2) A person is sufficiently identified for the purposes of subsection (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- 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
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.

(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 authorised operation concerned.
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 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;

   (b)  to authorise additional or alternative persons to engage in controlled
        conduct for the purposes of the operation;

   (c)  to authorise participants in the operation to engage in additional or
        alternative controlled conduct;

   (d)  to identify additional suspects (to the extent known).

(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.

(3) An application for a variation of authority must be in writing signed by
the applicant.

(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.
131I. Determination of application to vary authority

(1) After considering an application for a variation of authority, and any
additional information furnished under section 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 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-

   (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 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 an application for variation
        was made, to the purposes referred to in section 131H(1) in respect of
        which the application was made.
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 at any
time and for any reason.

(2) Without limiting subsection (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.

(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
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 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 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.
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 continues to apply to a participant in the operation as
if the authority had not been varied in that way, for so long as the
participant-

   (a)  is unaware of the variation; and

   (b)  is not reckless about the existence of the variation.

(2) If an authority for a controlled operation is cancelled, this Part
continues to apply to a participant in the operation as if the authority had
not been cancelled in that way, for so 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 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

   (b)  having regard to the circumstances known to the person, it is
        unjustifiable to take the risk.



131O. Protection from criminal responsibility for certain ancillary conduct

(1) This section applies to conduct such as aiding and abetting the commission
of a relevant offence or of conspiring to commit a 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 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 offence (whether or not the person is a participant in a controlled
operation) is not criminally responsible for the offence if at the time the
person engaged in the ancillary conduct he or she believed the related
controlled conduct was being engaged in, or would be engaged in, by a
participant in an authorised operation. Division 5-Notification of third
parties
131P. 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
Department or a participant in the operation), the principal law enforcement
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 or damage.

(3) The Secretary is not required to notify the owner of property under this
section until the Secretary is satisfied that notification would not-

   (a)  compromise or hinder the authorised operation; or

   (b)  compromise the identity of a participant in the authorised operation;
        or

   (c)  endanger the life or safety of any person; or

   (d)  prejudice any legal 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 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

(1) A person is guilty of an offence if-

   (a)  the person intentionally, knowingly or recklessly discloses any
        information; and

   (b)  the person knows that, or is reckless as to whether, the information
        relates to an authorised operation; 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

   (ii) for the purposes of any legal proceeding arising out of or otherwise
        related to this Act or of any report of any such 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 or 6 of the Information Privacy Act 2000. Penalty: Imprisonment
        for 2 years.

(2) A person is guilty of an offence against this subsection if the person
commits an offence against subsection (1) in circumstances in which the
person-

   (a)  intends to endanger the health or safety of any person or prejudice
        the effective conduct of an authorised operation or a corresponding
        authorised operation; or

   (b)  knows that, or is reckless as to whether, the disclosure of the
        information-

   (i)  endangers or will endanger the health or safety of any person; or

   (ii) prejudices or will prejudice the effective conduct of an authorised
        operation or a corresponding authorised operation. Penalty:
        Imprisonment for 10 years.

(3) An offence against subsection (2) is an indictable offence.
131R. Principal law enforcement officers' reports

(1) Within 2 months after the completion of an authorised operation, the
principal law enforcement officer for the operation must make a report in
accordance with this section to the Secretary.

(2) The report must include the following details-

   (a)  the date and time when the authorised 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; 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

   (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 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 must submit a report to the Special Investigations Monitor setting
out the details required by subsection (2) in relation to authorised
operations conducted during the previous 6 months.

(2) The report must include the following details-

   (a)  the number of authorities that have 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 relates; and

   (b)  the nature of the criminal activities against which the authorised
        operations were directed; and

   (c)  the nature of the controlled conduct 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-

   (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

   (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 the Secretary or that have
        expired during the period to which the report relates.

(3) The Special Investigations Monitor may require the Secretary to furnish
additional information covering any authorised operation to which a report
relates.

(4) Nothing in subsection (2)(c) or (d) requires 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 period of 6 months in which the operation is
completed.
131T. Annual report by Special Investigations Monitor

(1) The Special Investigations Monitor must, as soon as practicable after 30
June in each year, 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-

   (a)  must include comments on the comprehensiveness and adequacy of the
        reports which were provided to the Special Investigations Monitor by
        the Secretary under section 131S; and

   (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 Secretary must advise the Special Investigations Monitor 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 public, could reasonably be expected to-

   (a)  endanger a person's safety; or

   (b)  prejudice an investigation or prosecution; or

   (c)  compromise any law enforcement agency's operational activities or
        methodologies.

(4) The Special Investigations Monitor must exclude information from the
report if satisfied on the advice of the Secretary of any of the grounds set
out in subsection (3).

(5) The Special Investigations Monitor must transmit the report to each House
of Parliament as soon as practicable after the earlier of-

   (a)  the day on which the Special Investigations Monitor received the
        Secretary's advice under subsection (3);

   (b)  14 days after the day the Special Investigations Monitor gave the
        report to the Secretary.

(6) Nothing in this section requires particulars of an authorised operation to
be included in a report for a year if the operation had not been completed as
at 30 June in that year, but the particulars must instead be included in the
report for the year in which the operation is completed.

(7) A report under this section may be combined with a report of the Special
Investigations Monitor under section 39 of the
Crimes (Controlled Operations) Act 2004.
131U. Keeping documents connected with authorised operations The Secretary
must cause the following to be kept-

   (a)  each application for authority; and

   (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

   (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 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

   (ii) whether the application was granted, refused or withdrawn; and

   (iii) if the application was refused or withdrawn-the date and time of the
        refusal or withdrawal; and

   (b)  for each authority-

   (i)  the date and time the authority was granted; and

   (ii) each offence in respect of which controlled conduct under the
        authority was to be engaged in; and

   (iii) the period of validity of the 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
        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

   (vii) if the authorised operation involved illicit goods, to the extent
        known-

                (A)  the nature and quantity of the illicit goods; and

                (B)  the route through which the illicit goods passed in the
                     course of the operation; and

   (viii) 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, the date and time the variation was
        made.



131W. Inspection of records by Special Investigations Monitor

(1) The Special Investigations Monitor must, from time to time and at least
once every 12 months, inspect the records of the Department to determine the
extent of compliance with this Part by the Secretary and law enforcement
officers.

(2) For the purpose of an inspection under this section, the Special
Investigations Monitor-

   (a)  after notifying the Secretary, may enter at any reasonable time
        premises 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

   (c)  may require a member of staff of the Department to give the Special
        Investigations Monitor any information that the Special Investigations
        Monitor considers necessary, being information that is in the member's
        possession, or to which the member has access, and that is relevant to
        the inspection.

(3) The Secretary must ensure that members of staff of the Department give the
Special Investigations Monitor any assistance the Special Investigations
Monitor reasonably requires to enable the Special Investigations Monitor to
perform functions under this section.



Division 7-General
131X. No delegations Despite any other Act or law to the contrary, the
functions or powers of the Secretary under this Part may not be delegated to
any other person.
131Y. Evidence of authorities A document purporting to be an authority granted
under section 131D-

   (a)  is admissible in any legal proceedings; and

   (b)  in the absence of evidence to the contrary, is proof in any
        proceedings (not being criminal or disciplinary proceedings against a
        law enforcement officer) that the Secretary was satisfied 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 criminal activity occurring before, on or
after the commencement of this Part.". __________________