[2026] SASCA 42

Prosecution: THE KING Counsel: MR M HINTON KC WITH MR S WHITTAKER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) First Defendant: FA Counsel: MR B ARMSTRONG WITH MS T JOHANSON - Solicitor: DANNI STEPHENS LEGAL Second Defendant: MA Counsel: MR C S L ABBOTT KC WITH MR B LODGE - Solicitor: SHAW LEGAL & ADVISORY Third Defendant: KH Counsel: MR D MOEN (EXCUSED) - Solicitor: DIXON GALLASCH Intervener: ATTORNEY-GENERAL OF THE COMMONWEALTH Counsel: MR T BEGBIE KC WITH MS H CANHAM - Solicitor: AUSTRALIAN GOVERNMENT SOLICITOR Hearing Date/s: 13/04/2026 File No/s: SCCRM-26-008652 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated QUESTION OF LAW RESERVED (NO 1 OF 2026) [2026] SASCA 42 Judgment of the Court of Appeal (The Honourable Justice David, the Honourable Justice Stanley and the Honourable Justice B Doyle) 23 April 2026 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND PROVISIONS - PARTICULAR LEGISLATION - COMMONWEALTH CRIMINAL LAW - PROCEDURE - CONTROLLED OPERATIONS The defendants are the subject of ongoing prosecutions before the District Court of South Australia for various offences including drug trafficking and money laundering. The second defendant (‘MA’) made application for a permanent stay of those proceedings and, alternatively, for the exclusion of evidence comprising communications made by him using a mobile phone application known as ‘AN0M’ and an associated telecommunications platform known as the AN0M platform. The first and third defendants made relevantly similar applications. The development and deployment of the AN0M platform was part of a large-scale operation known as ‘Operation Ironside’. Operation Ironside was authorised, in part, by two successive ‘major controlled operation’ authorisations (‘MCOAs’) pursuant to Part IAB of the Crimes Act 1914 (Cth) (‘Crimes Act’). The second MCOA was granted on 25 September 2020 and later extended on 24 December 2020 for an additional period of three months. At the time the applications for the second MCOA and extension were made, the Federal Agent responsible for the applications had knowledge that -- 1 of 24 -- members or associates of an outlaw motor cycle gang were using the AN0M platform to discuss and plot the murder of MA (‘the Plot’). In order for MA to succeed in his application, it was critical to establish that the Federal Agent’s knowledge of the Plot was a matter required to be disclosed in the application for the second MCOA. MA contended that the conduct involved in planning his murder was ‘conduct involved in the controlled operation’ which seriously endangered his safety or could have caused his death, within the meaning of s 15GI(2)(g) of the Crimes Act. It was submitted that, had that disclosure been made, the authorising officer would not have authorised the second MCOA and therefore MA would not have sent or received any messages through the AN0M platform from shortly after 25 September 2020, including communications relied upon in the prosecution against him. In November 2025, ss 15GI and 15GV were amended ‘to avoid doubt’ (the ‘2025 amendments’). On 24 February 2026, a judge of the District Court of South Australia heard argument on the defence applications for a voir dire and to cross-examine witnesses in relation to MA’s application. On 26 February 2026, the judge dismissed that application, ruling that ‘conduct involved in the controlled operation’ in ss 15GI(2)(g) and 15GV(2)(g) referred to conduct of ‘participants’, who are defined in s 15GC of the Crimes Act as persons who are authorised to engage in the ‘controlled conduct’. The judge dismissed the application for a permanent stay or exclusion of evidence on the basis that a crucial step in the arguments in favour of the applications had failed. MA subsequently made application to reserve a question of law for determination by the Court of Appeal pursuant to s 153(2) of the Criminal Procedure Act 1921 (SA). The application was granted and a case was stated by the judge in the following terms: Was I correct to find that the phrase ‘any conduct involved in the controlled operation’ in ss 15GI(2)(g) and 15GV(2)(g) of the Crimes Act 1914 (Cth) relates only to the conduct of ‘participants’ (as that term is defined in s 15GC) in the proposed controlled operation? Held, answering the question reserved for determination ‘yes’: 1. the text, context and purpose of ss 15GI(2)(g) and 15GV(2)(g) support a construction that ‘any conduct involved in the controlled operation’ means the conduct of participants in the controlled operation; 2. in circumstances where the meaning of ‘any conduct involved in the controlled operation’ in ss 15GI(2)(g) and 15GV(2)(g) prior to the 2025 amendments is tolerably clear, it is unnecessary to address their effect. Acts Interpretation Act 1901 (Cth) s 15AA; Crimes Act 1914 (Cth) ss 3AA, 15G, 15GA, 15GC, 15GD, 15GE, 15GH, 15GI, 15GK, 15GT(3), 15GV, 15HA, 15HB, 15HE, 15HF, pt IAB; Crimes Amendment (Controlled Operations) Act 1996 (Cth) pt 1AB; Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth) sch 3 cl 10; Criminal Procedure Act 1921 (SA) s 154; Crown Proceedings Act 1992 (SA) s 9(2); Telecommunications and Other Legislation Amendment Act 2025 (Cth), referred to. Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; Carr v Western Australia (2007) 232 CLR 138; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; Esso Australia Pty Ltd v Australian Workers Union (2017) 263 CLR 551; Green v R (2011) 244 CLR 462; Minister for Home Affairs v DMA18 (2020) 270 CLR 372; Ravbar v Commonwealth (2025) 99 ALJR 1000, [2025] HCA 25; Re John; Panochini v Jude [2000] 2 Qd R 322; Ridgeway v The Queen (1995) 184 CLR 19; Taylor v Owners – Strata Plan No 11465 (2014) 253 CLR 531; Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45, discussed. -- 2 of 24 -- QUESTION OF LAW RESERVED (NO 1 OF 2026) [2026] SASCA 42 Court of Appeal – Criminal: David, Stanley and B Doyle JJA 1 THE COURT: The question of law that has been reserved for determination arises in connection with the prosecution of the defendants for drug trafficking, money laundering and other offences. Background 2 The second defendant (‘MA’) made application for a permanent stay and, alternatively, for the exclusion of evidence comprising communications made by him using an application on mobile phones known as ‘AN0M’ and an associated telecommunications platform known as the AN0M platform. The other defendants have made relevantly similar applications. It is sufficient to focus on MA’s application and contentions. 3 The development and deployment of the AN0M platform was part of a large-scale operation involving the Australian Federal Police (‘AFP’) and other law enforcement agencies known as ‘Operation Ironside’.1 Operation Ironside was authorised, in part, by two successive ‘major controlled operation’ authorisations (‘MCOAs’) pursuant to Part IAB of the Crimes Act 1914 (Cth) (‘Crimes Act’). 4 The first MCOA was granted on 25 September 2018. It was originally due to expire on 24 December 2018, but was subject to a number of extensions. Section 15GT(3) of the Crimes Act had the effect that the first MCOA could not be extended beyond 25 September 2020. The AFP wished for Operation Ironside to continue. On 16 September 2020, Federal Agent Tim Collins (‘FA Collins’) applied to a Deputy Commissioner of the AFP for a new MCOA. That resulted in the grant of a further MCOA on 25 September 2020 (‘second MCOA’). Amongst other things, the second MCOA authorised the distribution of AN0M enabled handsets and related items, the provision of technical assistance to those using AN0M enabled handsets, and the support of the ongoing operation and management of the platform. 5 The second MCOA was due to expire on 24 December 2020, but on application by FA Collins, it was extended by a Deputy President of the Administrative Appeals Tribunal for a period of three months (the ‘MCOA extension’). 6 At the time the applications for the authorisation and extension were made, FA Collins was aware that members or associates of an outlaw motor cycle gang were discussing and plotting the murder of MA (the ‘Plot’). Their communications were substantially over the AN0M platform. 1 An overview of Operation Ironside and the AN0M platform is contained in Questions of Law Reserved (Nos 1 and 2 of 2023) (2024) 388 FLR 118; [2024] SASCA 82 at [12]-[24]. -- 3 of 24 -- [2026] SASCA 42 The Court 2 7 Several individuals involved in the discussions have been charged with conspiracy to murder MA and are awaiting trial. The conspiracy has been particularised as commencing on 14 October 2020, but it is alleged that discussions about the Plot occurred as early as April 2020. 8 The applications for the second MCOA and the MCOA extension did not disclose the fact that the AN0M platform was being used to plan MA’s murder. A critical element in the applications for a permanent stay and exclusion of evidence was that the failure to disclose these matters was improper. 9 Section 15GI(2)(g) of the Crimes Act required that an authorising officer not grant an authority unless satisfied on reasonable grounds that any conduct involved in the controlled 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. Section 15GH(4)(a) required the application for authorisation to provide sufficient information to enable the authorising officer to decide whether or not to grant the application. 10 MA submitted that the Plot was a matter required to be disclosed in the application for the second MCOA because the conduct involved in planning his murder (that is, the Plot) was ‘conduct involved in the controlled operation’ which seriously endangered MA’s safety or could have caused his death. FA Collins’ knowledge of it was required to be provided so that the authorising officer would have sufficient information to enable them to decide whether to grant the authorisation. MA submitted that had such disclosure been made, the Deputy Commissioner would not have been satisfied of a statutory pre-condition to the grant of an MCOA. Had Operation Ironside come to an end, MA would not have sent or received any messages over the AN0M platform from shortly after 25 September 2020, including communications relied upon in the prosecution against him. In respect of the counts alleged against MA after 25 September 2020, much of the evidence was generated and documented by reason of a MCOA that should not have been granted. On that basis it was contended that those charges should be permanently stayed, or evidence relating to them excluded. 11 A similar argument is made in respect of the application for the MCOA extension by reference to the language of s 15GV(2)(g) in respect of the counts alleging conduct by him after 24 December 2020. 12 On 24 February 2026, a judge of the District Court of South Australia heard argument on the defence applications for a voir dire, and to cross-examine witnesses. 13 On 26 February 2026, the judge dismissed that application, ruling that ‘conduct involved in the controlled operation’ in ss 15GI(2)(g) and 15GV(2)(g) referred to conduct of ‘participants’ who are defined in s 15GC of the Crimes Act as persons who are authorised to engage in the ‘controlled conduct’. The conduct of those conspiring to kill MA was not the conduct of participants in the proposed -- 4 of 24 -- [2026] SASCA 42 The Court 3 or varied operation and there was no obligation to disclose it in the applications for authorisation or variation. The judge dismissed the application for exclusion and a permanent stay on the basis that a crucial step in the arguments in favour of the applications had failed. 14 On 10 March 2026, pursuant to s 154 of the Criminal Procedure Act 1921 (SA), the judge reserved the following question for determination: Was I correct to find that the phrase ‘any conduct involved in the controlled operation’ in ss 15GI(2)(g) and 15GV(2)(g) of the Crimes Act 1914 (Cth) relates only to the conduct of ‘participants’ (as that term is defined in s 15GC) in the proposed controlled operation? 15 A trial involving MA and other defendants, raising similar issues to those arising on the defence applications in this proceeding, is scheduled to commence on 1 June 2026. It has therefore been necessary for the hearing and determination of the reserved question to be expedited. 16 On 8 April 2026, the Attorney-General of the Commonwealth of Australia intervened on behalf of the Commonwealth.2 The Court heard oral submissions on 13 April 2026 and received written submissions by way of reply on behalf of MA on 17 April 2026. The defendants’ contentions 17 MA, whose submissions the other defendants adopt, contends that there is no sufficient reason to limit the meaning of the composite phrase ‘any conduct in the controlled operation’ to conduct of participants in the controlled operation, and so as to necessarily exclude conduct on the part of persons targeted by the operation or involved in suspected criminal activity the subject of, or arising in connection with, the proposed operation. 18 The defendants’ submissions commence with the proposition that the provisions for the authorisation and extension of MCOAs involve the conferral upon participants of a protected status that is inconsistent with the equality of all persons before the law.3 The scope of the authorisation power (and any qualifications upon any limits to the powers) should be no more extensive than as provided for expressly or by necessary implication. 19 The defendants contend that neither the text, context or purpose of the provisions justifies the meaning given to ‘any conduct in the controlled operation’ in ss 15GI(2)(g) and 15GV(2)(g) by the judge. 20 Focusing upon the text, the defendants emphasise the descriptor ‘any’ before the word ‘conduct’, and the potential breadth of the adjectival phrase ‘involved in’. The defendants contend that the relevant provisions focus upon the conduct and its 2 Crown Proceedings Act 1992 (SA), s 9(2)(a). 3 See, eg, Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at [24]-[25] (Kiefel CJ, Bell, Keane and Gordon JJ), Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 at [41], [52] (French CJ, Kiefel, Bell, Gageler and Keane JJ), Green v R (2011) 244 CLR 462 at [28] (French CJ, Crennan and Kiefel JJ). -- 5 of 24 -- [2026] SASCA 42 The Court 4 relation to the subject matter of the operation and are agnostic as to the identity of the person engaging in the conduct. The defendants point to the ease with which the relevant conduct could expressly have been limited by the words ‘of a participant’, or by employing the defined term ‘controlled conduct’. 21 With respect to matters of context and purpose, the defendants contended (and it was common ground) that Part 1AB (the predecessor to Part IAB) was introduced in response to the decision in Ridgeway v The Queen4 (‘Ridgeway’). The defendants contend that whilst Part IAB has the extraordinary purpose and effect of allowing those whose usual duty is to uphold the law to commit crimes and yet be immune from liability, the purpose of ss 15GI(2) and 15GV(2) is to impose public policy limits beyond which the legislature is ‘not prepared to allow unsanctioned crime to be committed’ because they reflect the circumstances in which the detection and punishment of crime would be ‘bought at too high a price’.5 22 The defendants submit that the inquiries required by ss 15GI(2) and 15GV(2) are designed to ensure adequate controls and limits on the scope of an operation, and that the purpose of paragraph (g) is to ensure that the interests of a criminal investigation are not afforded a higher priority than the life, health and safety of persons, and to ensure that no sexual assault will occur and that property is not lost or damaged. 23 MA submitted that:6 It would be a surprising result if the provisions permitted a MCO in which sex crimes were committed against children, so long as those crimes were committed by someone other than an authorised participant. There does not appear to be any logical support for limiting the prohibition on MCOs which involve sex crimes, to only those cases where the AFP officer (for example) commits the sex crime. In other words, if the protection of the public involved the carve-outs in s 15GI(2)(g) is to ensure that MCOs are not granted which conceive of the possibility that innocent people are killed, raped or seriously injured, then there does not seem to be any reason in principle for why those consequences should only be protected from occurring when a member of the law enforcement agency commits them. In light of the subject matter of s 15GI(2)(g) and s 15GV(2)(g), it would be surprising if the Parliament was only including law enforcement officers within the ambit of those provisions. One might think that Australian law enforcement agents are well aware of the fact that they cannot kill people or commit sexual offences. Protecting innocent people from serious adverse consequences perpetrated by the targets of the operation is a far more necessary prohibition. That is a matter that tells against a construction that involves narrowing its ambit to authorised participants in the controlled operation. 24 Those submissions assume, or implicitly assert, that what lies behind the limits supplied by paragraph (g) is the avoidance of the outcomes identified in 4 (1995) 184 CLR 19. See Crimes Amendment (Controlled Operations) Act 1996 (Cth). Part 1AB was repealed and replaced with Part IAB, substantially in its present form, by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth), Schedule 3, cl 10. 5 Written submissions of MA filed 7 April 2026 (‘MA Submissions’), [29]. 6 MA Submissions, [37]-[38]. -- 6 of 24 -- [2026] SASCA 42 The Court 5 sub-paragraphs (i)-(iv), namely, the serious endangering of health or safety of any person, the death of, or serious injury to, any person, the commission of a sexual offence against any person, or the significant loss of, or serious damage to, property (other than illicit goods). In MA’s written submissions in reply,7 he submitted that the purpose of s 15GI(2)(g) was to protect the safety, life, bodily integrity, and proprietary rights of persons. From that premise, the submission is made that it would be incoherent, artificial and perhaps ineffective to focus only upon the conduct of the participants. 25 The real question, however, is whether the premise is sound. For the more detailed reasons that follow, it is not. The object or purpose of s 15GI(2)(g) (and s 15GV(2)(g)) is more limited, as its text, construed in the context of Part IAB, shows. 26 That is not to say that the risks associated with criminal or dangerous conduct on the part of non-participants is wholly irrelevant to the scheme of authorisation or variation provided for in Part IAB. Rather, it is to respect the distinct inquiries posed by the relevant provisions insofar as they address that risk. The undesirability of an operation precipitating criminal conduct by a person that the person would not otherwise have intended to commit is addressed by ss 15GI(2)(f) and 15GV(2)(f). The desirability of limiting any unlawful conduct on the part of participants to the maximum extent consistent with the operation being effective is addressed by ss 15GI(2)(c) and 15GV(2)(c). The unacceptability of the operation involving conduct of a particular nature or with particular outcomes is addressed by ss 15GI(2)(g) and 15GV(2)(g). The purpose of the latter provisions is not to protect safety, life, bodily integrity, and proprietary rights, of persons. The provisions instead reflect the striking of a legislative balance: where it cannot safely be concluded that the conduct of those involved in the operation will not produce the identified outcomes (or involve the commission of a sexual offence), the authorisation and effective immunisation by participants of conduct that would otherwise be unlawful should not be sanctioned. Part IAB of the Crimes Act 27 The proper construction of s 15GI(2)(g) (and s 15GV(2)(g)) requires a consideration of Part IAB as a whole. The critical provisions were amended in November 2025,8 but it is convenient in the first instance to consider the text, context and purpose of the relevant provisions in the form they took when the second MCOA and the MCOA extension were granted. 28 The main objects of Part IAB are identified by s 15G, namely: (a) to provide for the authorisation, conduct and monitoring of controlled operations; and 7 Written submissions in reply of MA filed 17 April 2026 (‘MA reply submissions’), [2]. 8 Telecommunications and Other Legislation Amendment Act 2025 (Cth). -- 7 of 24 -- [2026] SASCA 42 The Court 6 (b) to exempt from criminal liability, and to indemnify from civil liability: (i) law enforcement officers who, in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability; and (ii) certain other persons who, in accordance with the instructions of a law enforcement officer and in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability. 29 These objects confirm that these provisions, like those in Part 1AB in the form originally enacted, respond to the observations of Mason CJ, Deane and Dawson JJ in Ridgeway that:9 … in the context of the fact that deceit and infiltration are of particular importance to the effective investigation and punishment of trafficking in illegal drugs such as heroin, it is arguable that a strict requirement of observance of the criminal law by those entrusted with its enforcement undesirably hinders law enforcement. Such an argument must, however, be addressed to the Legislature and not to the courts. If it be desired that those responsible for the investigation of crime should be freed from the restraints of some provisions of the criminal law, a legislative regime should be introduced exempting them from those requirements. 30 Section 15GA(2)(a) provides that 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 the person was a participant in a controlled operation authorised under the Part acting in the course of the controlled operations and the criminal activity was ‘controlled conduct’. Where it operates, that provision reverses what might otherwise be the effect of the principles discussed in Ridgeway. 31 The circumstances in which the legislature considered it desirable to exempt those responsible for the investigation of crime from liability and, consequently, to ensure that evidence obtained as a result of otherwise criminal activity is not rendered inadmissible, are limited by the provisions of Part IAB. 32 The particular question of construction arising in this case concerns one such limitation, namely, the limitation imposed by s 15GI(2)(g) (and s 15GV(2)(g)). To say that a purpose of the limitation is to avoid the risk to life, health and safety of persons who might be in danger as a result of a controlled operation may assist, at a high level, in identifying the constructional issue requiring attention, but it is not particularly helpful in resolving it. 9 (1995) 184 CLR 19 at 43-44. -- 8 of 24 -- [2026] SASCA 42 The Court 7 33 As Gleeson CJ said in Carr v Western Australia,10 resort to purpose (at least where the purpose is identified at a level of abstraction):11 … may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation achieves a purpose, stating the purpose is unlikely to solve the problem. 34 The surest guide to the extent to which the legislature has seen fit to authorise a controlled operation that may entail a law enforcement or civilian participant engaging in unlawful conduct or conduct that poses a risk of harm to others is the language and structure of the relevant provisions, read in the context of the Part as a coherent whole.12 35 Of course, a meaning which achieves the purpose of the provision is to be preferred,13 but the purpose is to be ascertained objectively from the whole text and context.14 The text and structure of the Part informs the contextual meaning of the composite phrase ‘any conduct involved in the controlled operation’. 36 The best place to start is with the concept of a ‘controlled operation’. 15GD Meaning of controlled operation and major controlled operation (1) A controlled operation is an operation that: (a) involves the participation of law enforcement officers; and (b) is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and (c) may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory. Note: Section 15GN specifies when a controlled operation begins and ends. (2) A major controlled operation is a controlled operation that is likely to: (a) involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days; or 10 (2007) 232 CLR 138. 11 (2007) 232 CLR 138 at [5]. 12 Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at [28] (French CJ, Hayne, Kiefel and Bell JJ), Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 at [25] (French CJ and Hayne J), Taylor v Owners – Strata Plan No 11465 (2014) 253 CLR 531 at [66] (Gageler and Keane JJ). 13 Acts Interpretation Act 1901 (Cth), s 15AA. 14 Ravbar v Commonwealth (2025) 99 ALJR 1000; [2025] HCA 25 at [43] (Gageler CJ). -- 9 of 24 -- [2026] SASCA 42 The Court 8 (b) continue for more than 3 months; or (c) be directed against suspected criminal activity that includes a threat to human life. Note: Section 15GN specifies when a controlled operation begins and ends. 37 A controlled operation must ‘involve’ the participation of law enforcement officers. It may ‘involve’ such an officer or other person in conduct that would, apart from s 15HA, constitute an offence. The third limb of the definition of a major controlled operation suggests that an operation is directed ‘against’ suspected criminal activity.15 38 That language, together with the language of s 15GK, which specifies the form that a formal authority or urgent authority must take, tends to suggest a legislative distinction between those persons authorised to engage in controlled conduct16 (the ‘participants’) and the ‘persons targeted’ or suspected of criminal activity.17 A ‘person targeted’ in relation to a controlled operation is a person about whom, as result of the controlled operation, it is intended to obtain evidence, or evidence is being, or has been, obtained.18 Section 15GK also contemplates that there will be criminal activity (including suspected offences) ‘in respect of which the controlled conduct is to be engaged in’.19 39 These definitions and provisions tend to suggest that a controlled operation will be directed against suspected criminal activity. The persons targeted by or in relation to an operation are distinct from the participants in the controlled operation. The controlled conduct is engaged in by participants and is engaged in in respect of criminal activity. The activity of the persons targeted and the conduct comprising suspected criminal activity is not conduct which itself forms part of the operation. 40 The concept of ‘controlled conduct’ is defined with further precision by s 15GC as conduct constituting an offence for which a person would, but for s 15HA, be criminally responsible. That section provides: 15HA Protection from criminal responsibility for controlled conduct during controlled operations (1) This section applies if: (a) a participant in a controlled operation engages in conduct in the course of, and for the purposes of, the controlled operation; and 15 Crimes Act, s 15GD(2)(c). 16 Crimes Act, ss 15GK(1)(e)-(f) and 15GK(2)(e)-(f). 17 Crimes Act, ss 15GK(1)(g) and 15GK(2)(g). 18 Crimes Act, s 15GC. 19 Crimes Act, ss 15GK(1)(d) and 15GK(2)(d). -- 10 of 24 -- [2026] SASCA 42 The Court 9 (b) engaging in that conduct is a Commonwealth offence or an offence against a law of a State or Territory. (2) Despite any other law of the Commonwealth, a State or a Territory, the participant is not criminally responsible for the offence, if: (a) the participant engages in the conduct in accordance with the authority to conduct the controlled operation; and (b) the participant is identified in the authority as a person authorised to engage in controlled conduct for the purposes of the controlled operation; and (c) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence under a law of a State or Territory that the person would not otherwise have intended to commit; and (d) 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 (ii) involve the commission of a sexual offence against any person; and (e) if the participant is a civilian participant in the operation—he or she acts in accordance with the instructions of a law enforcement officer. 41 The only conduct which is exempted from criminal responsibility by this section is the conduct of a participant in a controlled operation.20 Consistently with this, s 15GC defines a ‘participant’ in a controlled operation to mean a person who is authorised under the Part to engage in controlled conduct for the purposes of the controlled operation. 42 There are two types of participants: ‘law enforcement participants’ and ‘civilian participants’.21 Civilian participants in a controlled operation are participants in a controlled operation who are not law enforcement officers. A person can only be a civilian participant in a controlled operation if they have been authorised to engage in controlled conduct. A target or other person who engages in criminal behaviour who has not been authorised under s 15GI cannot qualify as a participant. 43 To determine whether the conduct of a participant that would otherwise amount to an offence is exempted from criminal responsibility under s 15HA and thereby amounts to ‘controlled conduct’, it is first necessary to consider whether: 20 This is subject to s 15HE, which extends protection for criminal liability beyond the participants to a controlled operation where that liability would be for an offence that would be ancillary in a defined sense (conspiracy, aiding, abetting, counselling, procuring, inciting or being culpably concerned in) to ‘related controlled conduct’. The exemption applies if the person committing the ancillary offence believed, at the relevant time, that the related controlled conduct was being engaged in, or would be engaged in, by a participant in a controlled operation authorised under the Part. 21 Crimes Act, s 15GC. -- 11 of 24 -- [2026] SASCA 42 The Court 10 • the participant engaged in conduct ‘in the course of, and for the purposes of, the controlled operation’ (s 15HA(1)(a)); • the participant engaged in the conduct in accordance with the authority to conduct the controlled operation (s 15HA(2)(a)) and is identified in the authority as a person authorised to engage in that conduct for the purposes of the controlled operation (s 15HA(2)(b)); and • if the participant is a civilian participant, they acted in accordance with the instructions of a law enforcement officer (s 15HA(2)(e)). 44 Even if these qualifying criteria are satisfied, the participant’s conduct will not be exempt from liability (and will therefore not be ‘controlled conduct’) if it involves the participant: • intentionally inducing a person to commit an offence that the person would not otherwise have intended to commit (s 15HA(2)(c)); or • engaging in any conduct that is likely to cause the death of, or serious injury to, any person, or involve the commission of a sexual offence against any person (s 15HA(2)(d)). 45 As will be seen, the limit on exempt conduct recognised by s 15HA(2)(c) resembles (with a subtle qualification) the language in ss 15GI(2)(f) and 15GV(2)(f), and the limit in s 15HA(2)(d) reflects (with a subtle qualification) the language in ss 15GI(2)(g) and 15GV(2)(g). 46 In a structurally similar way, s 15HB obliges the Commonwealth to indemnify a participant against civil liability where the participant engages in conduct in the course of and for the purposes of a controlled operation and in accordance with the authority to conduct the controlled operation. The conduct must not involve an intentional inducement to commit a crime that the person would not otherwise have intended to commit or involve conduct likely to cause the death of, or serious injury to, any person, or involve the commission of a sexual offence against any person. 47 It may also be observed that s 15HF imposes an obligation upon the Commonwealth to compensate a person who suffers loss of or serious damage to property, or personal injury, in the course of, or as a direct result of a controlled operation authorised under the Part.22 This does not apply if the person suffered the loss, damage or injury in the course of, or as a direct result of, engaging in any criminal activity (other than criminal activity that is controlled conduct); or if the person was a law enforcement participant at the time of suffering the loss, damage or injury.23 22 Crimes Act, s 15HF(1). 23 Crimes Act, s 15HF(2). -- 12 of 24 -- [2026] SASCA 42 The Court 11 The critical provisions 48 It is convenient now to set out in full the first two provisions located in Subdivision A (‘Authorities to conduct controlled operations’) of Division 2 (‘Authorisation of controlled operations’). 15GH Applications for authorities to conduct controlled operations (1) An Australian law enforcement officer of a law enforcement agency may apply to an authorising officer for an authority to conduct a controlled operation on behalf of the law enforcement agency. (2) An application for an authority may be made: (a) by means of a written document signed by the applicant (such an application is 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 controlled operation—orally in person, or by telephone or any other means of communication (such an application is an urgent application). (3) Nothing in this Part prevents an application for an authority being made in respect of a controlled operation that has been the subject of a previous application, but in that case the subsequent application must be a formal application. Note: An urgent authority can be varied, but not so as to extend its duration—see sections 15GO and 15GS. (4) An application (whether formal or urgent) must: (a) provide sufficient information to enable the authorising officer to decide whether or not to grant the application; and (b) state whether or not the proposed controlled operation, or any other controlled operation with respect to the same criminal activity, has been the subject of an earlier application (whether formal or urgent) for an authority or variation of an authority and, if so, whether or not the authority was given or the variation granted; and (c) state the proposed period of effect of the authority, which must not exceed: (i) in the case of a formal application—3 months; and (ii) in the case of an urgent application—7 days. (5) An authorising officer may require an applicant to provide such additional information concerning the proposed controlled operation as is necessary for the proper consideration of the application. (6) As soon as practicable after making an urgent application that was not made in writing, the applicant must make a written record of the application and give a copy of it to the authorising officer to whom the application was made. -- 13 of 24 -- [2026] SASCA 42 The Court 12 15GI Determination of applications (1) An authorising officer may, after considering an application for an authority to conduct a controlled operation, and any additional information provided under subsection 15GH(5): (a) authorise the controlled operation by granting the authority, either unconditionally or subject to conditions; or (b) refuse the application. (2) An authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds: (a) that either: (i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or (ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); 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 controlled 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 ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end 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 4 to be complied with; and (f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and (g) that any conduct involved in the controlled operation will not: (i) seriously endanger the health or safety of any person; or (ii) cause the death of, or serious injury to, any person; or (iii) involve the commission of a sexual offence against any person; or (iv) result in significant loss of, or serious damage to, property (other than illicit goods); and -- 14 of 24 -- [2026] SASCA 42 The Court 13 (h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer. Note 1: Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG). Note 2: The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and the Immigration and Border Protection Department (see section 15GC). (3) To avoid doubt, an authorising officer may authorise a particular controlled operation only if he or she is an authorising officer for the controlled operation within the meaning of section 15GF. (4) An authority granted under this section is not a legislative instrument. 49 The first matter to note about s 15GI is that, putting the circumstance in s 15GI(2)(a)(ii) to one side, an authority should only be granted where the authorising officer is satisfied on reasonable grounds that: • a serious Commonwealth offence or a serious State offence that has a federal aspect24 has been, or is likely to be committed (s 15GI(2)(a)(i)); and • the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation (s 15GI(2)(b)). 50 It follows that the very circumstances necessary to justify the authorisation of a controlled operation will often involve the prospect of serious criminality occurring. Many of the kinds of offences within the scope of the relevant definitions would involve a risk to the health, or safety of persons, may cause death or serious injury, may involve conduct amounting to a sexual offence, or may result in significant loss of, or serious damage to, property. This contraindicates a construction of s 15GI(2)(g) that would treat the ‘conduct involved in the controlled operation’ as extending to the criminal conduct of non-participants that may be likely to occur (s 15GI(2)(a)(i)) or as extending to the conduct comprising the ‘suspected criminal activity’ that may justify a major controlled operation (s 15GD(2)(c)). 51 The next observation is that, within s 15GI(2), each of paragraphs (c), (d), (e) and (f) invites attention to the conduct of participants, and not to the conduct of persons who may be engaged in the suspected criminal activity that would justify the operation under consideration for approval. The defendants did not contend otherwise. That is to say: • when s 15GI(2)(c) invites attention to whether ‘any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled 24 Crimes Act, ss 3AA and 15GE. -- 15 of 24 -- [2026] SASCA 42 The Court 14 operation’, it must be limited to the conduct of participants, even though that is not made express; • when s 15GI(2)(d) invites attention to whether the operation ‘will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation’, this must be limited to the way in which the operation will be ‘conducted’ by participants, even though that is not made express; • when s 15GI(2)(e) asks whether the ‘proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with’, this is, by reason of the definition of controlled conduct, limited to the proposed conduct of participants; and • when s 15GI(2)(f) requires consideration whether ‘the controlled operation will not be conducted in such a way that a person is likely to be induced to commit’ an offence that they would not otherwise have intended to commit, it is plain that the focus is upon the way the controlled operation is conducted by participants, and whether that conduct will induce non-participants to commit criminal conduct that might not otherwise intentionally have been committed. 52 The way in which the noun ‘conduct’, the prepositional phrase ‘in conducting’ and the past participle ‘conducted’ are deployed in paragraphs (c)-(f) of s 15GI(2) is consistent with ‘conduct’ being activity undertaken by participants in a controlled operation. Whilst this is not conclusive of the construction to be given to s 15GI(2)(g), it counters the contention that, had the legislature intended to limit ‘conduct’ to conduct of participants, it would have made this express within s 15GI(2)(g). 53 In respect of the alternative or further submission that, had s 15GI(2)(g) been intended to relate only to the conduct of participants, the expression ‘controlled conduct’ would have been used, as has been seen, ‘controlled conduct’ has a meaning that is narrower than any conduct of a participant that is authorised by or forms part of the controlled operation. It is only conduct that, but for the exemption conferred by s 15HA, would render the participant criminally responsible. Moreover, some conduct that would result in criminal responsibility cannot amount to controlled conduct. 54 One reason why ‘controlled conduct’ was not used in s 15GI(2)(g), and which would also explain the use of the adjective ‘any’ in that provision, is that the conduct of participants which is required to be considered under s 15GI(2)(g) extends beyond the conduct that will attain protection pursuant to s 15HA (or result in an indemnity under s 15HB). -- 16 of 24 -- [2026] SASCA 42 The Court 15 55 These considerations tend to neutralise the defendants’ contention that the absence of any reference in s 15GI(2)(g) to ‘participants’ or to ‘controlled conduct’ tells in favour of a meaning of conduct that is unrelated to the identity of the person engaging in the conduct. The meaning of s 15GI(2)(g) 56 A number of considerations militate in favour of the conclusion that conduct is only ‘involved in the controlled operation’, within the meaning of s 15GI(2)(g), if it is the conduct of a participant in the controlled operation. 57 First, as has been seen, it is constitutive of a controlled operation that it involves the participation of law enforcement officers and may involve a law enforcement officer or other person (together, the participants) in conduct that, but for s 15HA, would constitute offending. A major controlled operation is one that is directed ‘against’ suspected criminal activity. In these circumstances it is natural to speak of those involved in the operation as the participants, and unnatural to speak of those engaged in suspected criminal activity against which the operation is directed as being involved in the operation. 58 Secondly, if the conduct involved in an operation is not to be understood by reference to those who are authorised to participate in it, it is difficult to identify any appropriate or sensible limit to the concept of involvement that would not pick up the conduct of criminal actors who may be the target of the operation. In the context of these proceedings, if it is said that the conduct of those who may have been plotting to kill MA was conduct ‘involved in the operation’, the question arises: what was it that made it so? In the course of argument, counsel for MA submitted that it was the fact that the operation had involved the ongoing provision of handsets and the operation and surveillance of the AN0M platform potentially to be used by the conspirators that meant that their conduct in respect of the Plot was conduct involved in the operation. If that is correct, the meaning of ‘conduct involved in the controlled operation’ extends to the criminal conduct of, or planned against, targets of the operation where it can be seen that the authorising of the operation may in some way facilitate (or perhaps not interrupt) that conduct. Whilst the phrase ‘involved in’ is capable of a range of meanings depending on its context, had the broad meaning contended for by the defendants been intended, it would have been more natural to refer to ‘conduct in relation to’, ‘conduct arising from’, ‘conduct arising out of’, ‘conduct associated with’ or perhaps ‘conduct in respect of’ the controlled operation.25 59 Next, and relatedly, if the conduct to which s 15GI(2)(g) directs attention extends beyond the conduct of the participants, the required inquiry is likely to be one of real difficulty. Before an authorisation could be granted, the authorising 25 As to the expression ‘in relation to’, see, eg, Minister for Home Affairs v DLZ18 (2020) 270 CLR 372 at [43] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). As to the expression ‘in respect of’, see, eg, Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45 at 47 (Brennan, Deane and Gaudron JJ). -- 17 of 24 -- [2026] SASCA 42 The Court 16 officer would need to be satisfied on reasonable grounds that any conduct, including conduct that might be facilitated or prompted in some way by the fact of the authorisation of the operation or the controlled conduct, ‘will not’ engage any of the outcomes in s 15GI(2)(g)(i)-(iv). It is one thing to be satisfied that the conduct of the participants will not engage those outcomes. It is quite another to be satisfied that the conduct of targets or their associates will not engage those outcomes. 60 The fact that s 15GH(4)(a) contemplates that the applicant will be in a position to provide sufficient information to enable the authorising officer to decide whether or not to grant the application also contraindicates the construction contended for by the defendants. The task of predicting and providing sufficient information to an authorising officer to enable them to be satisfied on reasonable grounds that any conduct connected with or arising from the authorisation of the operation will not engage the outcomes in s 15GI(2)(g)(i)-(iv) would be extremely onerous. It may be accepted that a construction which would entail a high hurdle to be cleared before a controlled operation is approved is not, for that reason alone, to be disfavoured.26 But in considering the various matters of text and context that inform the meaning of s 15GI(2)(g), it is nevertheless of significance that the defendants’ construction would frequently require an intricate and difficult assessment of how a range of persons might behave over the duration of an operation. 61 Next, as was earlier observed, there is an apparent relationship between the carve-outs from the exemptions and indemnities conferred by ss 15HA and 15HB and the circumstances, identified in s 15GI(2)(g)(ii) and (iii), in which an authorisation should not be granted. Under ss 15HA and 15HB, a participant is not exempted from, or indemnified in respect of, liability arising from the participant engaging in conduct likely to cause death or serious injury, or involving the commission of a sexual offence. In other words, the legislature has contemplated that ‘controlled conduct’ will not extend to conduct of participants that is likely to have those consequences or involve the commission of a sexual offence. It coheres with that legislative policy to require that the authorising officer be satisfied on reasonable grounds that the conduct of participants will not cause death or serious injury or involve the commission of a sexual offence against any person. Otherwise, the authorising officer would be authorising an operation where it is on the cards that the participants’ conduct may not attract the exemption or indemnity contemplated for conduct involved in controlled operations. 62 By contrast, to treat ‘conduct’ in s 15GI(2)(g) as extending to conduct of those persons, including targets, with whom the participants might engage, would not be harmonious with the balance of Part IAB. In many cases it will have been the very prospect that those persons might engage in dangerous or criminal behaviour that will have provided the raison d’etre for the operation, yet unless 26 MA reply submissions, [10]-[13]. -- 18 of 24 -- [2026] SASCA 42 The Court 17 the authorising officer could be reasonably satisfied that the outcomes in s 15G(2)(g)(i)-(iv) will not occur, the authorisation could not be granted. 63 In the case of a major controlled operation, the disharmony that would result is more pronounced. An operation may attain that status because it is directed against suspected criminal activity that includes a ‘threat’ to human life, yet, if s 15GI(2)(g) embraces conduct of the targets or subject of the operation, the operation could not be approved unless the authorising officer could be satisfied that the conduct will not seriously endanger the health or safety of any person or cause death or serious injury. 64 Acknowledging this potential difficulty, MA contended that ‘[l]ogically, threats to life must be different from the disqualifying words in s 15GI(2)(G), otherwise no MCOs could be authorised’.27 It may be accepted that there could be cases where s 15GD(2)(c) is satisfied but s 15GI(2)(g) is not engaged, but the obvious scope for the latter to tend to emasculate the class of cases covered by the former tends to undermine the defendants’ construction. 65 A more coherent construction would be to recognise that the former is dealing with the risk caused by the conduct of the targets and the latter is concerned with the conduct of the participants. 66 The construction that we would give to s 15GI(2)(g) does not involve reading in words of limitation.28 Rather, it involves ascertaining the meaning, in context, of ‘conduct involved in the controlled operation’.29 The only conduct that can sensibly be understood, in the context of the regime, as ‘involved in’ a controlled operation, is the conduct of law enforcement or civilian participants. Those whose conduct may be affected by, or observed by, the operation, are not part of or involved in the operation. They may be the target of it, or their conduct may simply be incidental to it, but their conduct is not conduct involved in the operation. 67 The defendants contended that this construction would bring about arbitrary results, and would attribute to the legislature an irrational intention to forbid the authorisation of an operation where a participant would kill or seriously injure a person, or cause serious damage to property, yet countenance an operation that would see death, serious injury or serious property damage caused by a non-participant. 68 There are at least two answers to that contention. The first is that if it is reasonably likely that the conduct of the participants in the controlled operation would induce another to commit a crime that they would not otherwise have 27 MA Submissions, [34]. 28 cf. Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at [38]-[39] (French CJ, Crennan and Bell JJ). 29 cf. Esso Australia Pty Ltd v Australian Workers Union (2017) 263 CLR 551 at [71] (Gageler J). -- 19 of 24 -- [2026] SASCA 42 The Court 18 intended to commit, the operation would likely not be approved by reason of s 15GI(2)(f). 69 The second answer is that if the preclusion in s 15GI(2)(f) is not engaged, but death, serious injury or serious property damage might occur during the operation or in connection with the suspected activity against which the operation is directed, there are two possibilities: • the first is that the risk of those outcomes exists independently of the operation, in which case, it is difficult to see why there would be anything surprising or anomalous about an operation being authorised. Indeed, authorising the operation might assist in disruption, detection or prevention of the undesirable conduct or consequences; • the second possibility is that those outcomes may be more likely to occur by reason of the conduct of the participants in the controlled operation. The question reserved for determination does not require an analysis of the directness of the relationship between the relevant conduct and the outcomes set out in s 15GI(2)(g)(i)-(iv). However, confining attention to the provisions as they stood before the amendments made in November 2025, it is at least conceivable that the preclusion on approval may be engaged where the infliction of relevant harm or the endangering of life would arise inevitably from the actions of other persons in response to the conduct of the participant. As well, the possibility that the operation may be authorised, but nevertheless result directly in property damage or personal injury to an innocent party is one expressly contemplated, and sought to be addressed, by the right to compensation conferred by s 15HF(1). 70 In our view, the foregoing considerations of text, context and purpose support a conclusion that conduct ‘involved in the controlled operation’ means the conduct of participants in the controlled operation. No absurdity or incoherence is produced by that meaning. If, which may be debated,30 an interpretive presumption against a departure from equality before the law is engaged, that meaning emerges with the requisite clarity. 71 This meaning of s 15GI(2)(g) also appears to accord with the way in which the provision and its rationale were described in a Revised Explanatory Memorandum relating to the proposed content of Part IAB in 2009,31 as revised following amendments made by the House of Representatives:32 30 Sections 15GI and 15GV do not themselves confer exemptions or immunities; that is the work of ss 15HA and 15HB. That said, an authorisation under s 15GI is antecedent to the operation of those provisions. In any event, the scheme plainly does involve a departure from equality before the law, and the question is as to the extent. In such cases, the observations of Gageler J in Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [314] are apposite. 31 Crimes Legislation Amendment (Serious and Organised Crime) Act 2009 (Cth), Schedule 3, cl 10. 32 Parliament of the Commonwealth of Australia, Senate, Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009, Revised Explanatory Memorandum (2009), 65. -- 20 of 24 -- [2026] SASCA 42 The Court 19 • the operation will not involve conduct that will: - seriously endanger the health or safety of any person - cause the death of, or serious injury to, any person - involve the commission of a sexual offence against a person, or - result in significant loss of or damage to property (other than illicit goods). The regime recognises that it is never appropriate for conduct of the nature specified to be undertaken, or authorised by, law enforcement officers. 72 Consistently with that rationale, in his speech on the motion that the Bill be read a second time, the Attorney-General said:33 There are appropriate limits on this; controlled operations do not authorise conduct likely to cause death or serious injury or involve the commission of a sexual offence. 73 These extrinsic materials are consistent with, but need not be relied upon in reaching, the conclusion that the judge was correct to understand s 15GI(2)(g) as requiring attention to the conduct of participants in the controlled operation. The construction of s 15GV(2)(g) 74 Prior to the 2025 amendments, s 15GV made provision in relation to an application for a variation of an authority in the following terms. 15GV Determination of application (1) After considering an application for a variation of a formal authority, and any additional information provided under subsection 15GU(6), the nominated Tribunal member concerned: (a) may vary the authority in accordance with the application, either unconditionally or subject to conditions; or (b) may refuse the application. (2) The nominated Tribunal member must not grant the variation unless the nominated Tribunal member is satisfied on reasonable grounds: (a) that either: (i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or (ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff 33 Parliament of the Commonwealth of Australia, House of Representatives, Hansard, Wednesday 24 June 2009, 6967. -- 21 of 24 -- [2026] SASCA 42 The Court 20 member of a target agency (see the notes at the foot of this subsection); and (b) that the nature and extent of the suspected criminal activity are such as to justify the variation; and (c) that any unlawful conduct involved in conducting the controlled 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 ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end 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 4 to be complied with; and (f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and (g) that any conduct involved in the controlled operation will not: (i) seriously endanger the health or safety of any person; or (ii) cause the death of, or serious injury to, any person; or (iii) involve the commission of a sexual offence against any person; or (iv) result in significant loss of, or serious damage to, property (other than illicit goods); and (h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer. Note 1: Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG). Note 2: The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and the Immigration and Border Protection Department (see section 15GC). (3) A variation is not a legislative instrument. 75 The language and structure of s 15GV closely mirrors that of s 15GI. It should be construed in the same way. The conduct involved in the controlled operation, within the meaning of s 15GV(2)(g), is the conduct of the participants in the controlled operation. -- 22 of 24 -- [2026] SASCA 42 The Court 21 The amendments to the relevant provisions 76 The effect of amending legislation introduced in November 202534 was to insert two subsections in each of ss 15GI and 15GV, in these terms: (2A) To avoid doubt: (a) paragraph (2)(g) only requires an authorising officer to be satisfied as to the direct and reasonably foreseeable consequences of the unlawful conduct of participants in the controlled operation; and (b) nothing in subparagraph (2)(g)(iii) is intended to prevent an authorising officer from granting an authority to conduct a controlled operation that will involve a participant: (i) dealing with material depicting, material describing or material otherwise involving a sexual offence against any person; or (ii) facilitating a person to deal with such material. (2B) For the purposes of paragraph (2A)(a), a consequence is a direct consequence of unlawful conduct if the unlawful conduct causes or produces (and is not merely a minor influence on) the consequence without there being any intervening conduct or events. 77 The Explanatory Memorandum concerning the amending legislation stated that:35 [150] It further clarifies that an authorising officer is not expected to consider any actions of persons who are not participants listed in the controlled operation authority (for example, a person or persons targeted by the controlled operation) for the purposes of paragraph 15GI(2)(g). This amendment will also clarify that paragraph 15GI(2)(g) only applies to the unlawful conduct of participants. … [154] New paragraph 15GI(2A)(a) is intended to make clear the consideration of the authorising officer, under paragraph 15GI(2)(g), is only concerned with the unlawful conduct of a participant and not a suspect under investigation, unless the suspect’s conduct may be directly caused in some way by the participant’s conduct, and those consequences are reasonably foreseeable. The restriction in paragraph 15GI(2)(g) would otherwise have an absurd effect if it were read as meaning that a controlled operation to investigate a dangerous crime could not be authorised if there was risk that a suspect might continue the dangerous criminal behaviour which is under investigation. This would defeat the purpose of the Part IAB power. 78 The defendants emphasise that the amendment was not expressed to have retrospective effect and, given that ss 15GI and 15GV necessarily concerned a 34 Telecommunications and Other Legislation Amendment Act 2025 (Cth). 35 Explanatory Memorandum to the Telecommunications and Other Legislation Amendment Bill 2025. -- 23 of 24 -- [2026] SASCA 42 The Court 22 decision-maker’s satisfaction at the time of authorisation or variation respectively, there are difficulties with giving the amendments any modificatory effect.36 79 Because the meaning to be given to the compound expression ‘any conduct involved in the controlled operation’ in ss 15GI(2)(g) and 15GV(2)(g) as they stood before the 2025 amendments is tolerably clear, it is not necessary to address the effect of the amendments. Any effect that the amendments might have would not alter the answer that should be given to the reserved question. In those circumstances it is not necessary to address the defendants’ argument that the absurdity described in the Explanatory Memorandum involves a misconception. Disposition 80 The question reserved for determination should be answered ‘yes’. 36 cf. Re John; Panochini v Jude [2000] 2 Qd R 322 at [12]-[15] (McMurdo P, Davies and Thomas JJA). -- 24 of 24 --