Crimes (Controlled Operations) Act 2004

Victorian Legislation Parliamentary Documents i Crimes (Controlled Operations) Act 2004 Act No. 16/2004 TABLE OF PROVISIONS Section 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 -- 1 of 97 -- Victorian Legislation Parliamentary Documents Section Page ii 23. Manner of varying authority 20 24. Form of variation of authority 21 25. Cancellation of authorities 21 Division 4—Effect of Authorities 22 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 -- 2 of 97 -- Victorian Legislation Parliamentary Documents Section Page iii PART 5—GENERAL 39 Division 1—Delegation 39 43. Introduction 39 44. Delegations within Victoria Police 39 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 -- 3 of 97 -- Victorian Legislation Parliamentary Documents Section Page iv Division 6—Compliance and Monitoring 54 131Q. Unauthorised disclosure of information 54 131R. Principal law enforcement officers' reports 56 131S. Secretary's reports 56 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 -- 4 of 97 -- Victorian Legislation Parliamentary Documents Section Page v Division 5—Notification of Third Parties 75 74L. Notification requirements 75 Division 6—Compliance and Monitoring 76 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 -- 5 of 97 -- Victorian Legislation Parliamentary Documents 1 Crimes (Controlled Operations) Act 2004 † [Assented to 18 May 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 (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 Victoria No. 16 of 2004 -- 6 of 97 -- Victorian Legislation Parliamentary Documents Part 1—Preliminary Crimes (Controlled Operations) Act 2004 Act No. 16/2004 2 and that involve or may involve conduct for which participants in the operation would otherwise be criminally responsible; and (b) to facilitate mutual recognition of things done in relation to cross-border controlled operations authorised under laws of other 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 (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. 2. Commencement This Act comes into operation on a day or days to be proclaimed. 3. Definitions In this Act— "Australian Crime Commission" means Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth; "authorised operation" means a controlled operation for which an authority is in force; "authority" means an authority in force under Part 2, and includes any variation of such an authority; s. 2 -- 7 of 97 -- Victorian Legislation Parliamentary Documents Part 1—Preliminary Crimes (Controlled Operations) Act 2004 Act No. 16/2004 3 "chief officer" means— (a) in relation to Victoria Police—the Chief Commissioner of Police; (b) in relation to the Australian Crime Commission—the Chief Executive Officer of the Australian Crime Commission; "civilian participant" in an authorised operation means a participant in the operation who is not a law enforcement officer; "conduct" includes any act or omission; "controlled conduct"—see section 7; "controlled operation"—see section 6; "corresponding authorised operation" means any operation in the nature of a cross-border 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 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; "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 the commission of an offence by one or more persons; "cross-border controlled operation"—see section 9; s. 3 -- 8 of 97 -- Victorian Legislation Parliamentary Documents Part 1—Preliminary Crimes (Controlled Operations) Act 2004 Act No. 16/2004 4 "formal application"—see section 12(2)(a); "formal authority"—see section 18(1)(a); "formal variation application"—see section 21(3)(a); "formal variation of authority"—see 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; "jurisdiction" means a State or Territory of the Commonwealth; "law enforcement agency" means the following agencies— (a) Victoria Police; (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 Commission—a member of staff of the Australian Crime Commission— and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service 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; "local major controlled operation"—see section 10; s. 3 -- 9 of 97 -- Victorian Legislation Parliamentary Documents Part 1—Preliminary Crimes (Controlled Operations) Act 2004 Act No. 16/2004 5 "local minor controlled operation"—see section 11; "member" of Victoria Police, means a member of the force within the meaning of the Police Regulation Act 1958; "participant" in an authorised operation means a person who is authorised under this Act to engage in controlled conduct for the purposes of the operation; "participating jurisdiction" means a jurisdiction in which a corresponding law is in force; "principal law enforcement officer" for an authorised operation means the law enforcement officer who is responsible for the conduct of the operation; "relevant offence" means— (a) an offence against the law of this jurisdiction punishable by a maximum term of imprisonment of 3 years or more; or (b) an offence against the law of this jurisdiction that is prescribed by the regulations; "relevant Ombudsman" means— (a) the Victorian Ombudsman in relation to Victoria Police; (b) the Commonwealth Ombudsman in relation to the Australian Crime Commission; "suspect" means a person reasonably suspected of having committed or being likely to have committed, or of committing or being likely to be committing, an offence; "this jurisdiction" means Victoria; s. 3 -- 10 of 97 -- Victorian Legislation Parliamentary Documents Part 1—Preliminary Crimes (Controlled Operations) Act 2004 Act No. 16/2004 6 "urgent application"—see section 12(2)(b); "urgent authority"—see section 18(1)(b); "urgent variation application"—see section 21(3)(b); "urgent variation of authority"—see 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 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 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— (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 admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if— (a) the person was a participant or corresponding participant acting in the course of an authorised operation or corresponding authorised operation; and s. 4 -- 11 of 97 -- Victorian Legislation Parliamentary Documents Part 1—Preliminary Crimes (Controlled Operations) Act 2004 Act No. 16/2004 7 (b) the criminal activity was controlled conduct within the meaning of this Act or controlled conduct within the meaning of a corresponding law. 5. Binding the Crown (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. __________________ s. 5 -- 12 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 8 PART 2—AUTHORISATION OF CONTROLLED OPERATIONS Division 1—Types of Controlled Operations 6. What is a controlled operation? A "controlled operation" is 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 an offence; and (b) involves, or may involve, controlled conduct. 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 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; (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 offence; and (b) that is, will be, or is likely to be, conducted in this jurisdiction and in one or more participating jurisdictions. s. 6 -- 13 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 9 (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 another jurisdiction) if a participant in the 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 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? 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 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 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. s. 10 -- 14 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 10 Division 2—Procedure for Authorising Controlled Operations 12. Applications for authorities to conduct controlled operations (1) A law enforcement officer of a law enforcement agency may apply to the chief officer of the agency for authority to conduct a controlled operation on behalf of the agency. (2) An application for authority may be made— (a) by means of a written document signed by the applicant (a "formal application"); or (b) if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the operation— orally in person or by telephone, fax, e-mail 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 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 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 controlled operation; and s. 12 -- 15 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 11 (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 and, if so, the type of controlled operation authorised. (5) The chief officer may require the applicant to furnish any additional information concerning the 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 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 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 authority, either unconditionally or subject to conditions; or (b) may refuse the application. Note: The chief officer may delegate functions under this section—see Division 1 of Part 5. s. 13 -- 16 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 12 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 satisfied on reasonable grounds— (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 (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 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 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 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 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 s. 14 -- 17 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 13 (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 in the operation is not one that could be 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- 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 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 (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. (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 (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 s. 15 -- 18 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 14 (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 conduct of a controlled operation in this 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 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 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 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. (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 in controlled conduct that constitutes an offence punishable by a maximum term of imprisonment of 3 years or more. s. 17 -- 19 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 15 18. Form of authority (1) An authority to conduct a controlled operation may be granted— (a) by means of a written document, signed by the chief officer (a "formal authority"); or (b) if the chief officer is satisfied that the delay caused by granting a formal authority may affect the success of the operation—orally in person or by telephone, fax, e-mail or any other means of communication (an "urgent authority"). (2) Nothing in this Part prevents an authority being granted in respect of a controlled operation that has been the subject of a previous authority, but if the previous authority was an urgent authority, the 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 officer and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and (c) state whether the application is a formal application or an urgent application; and (d) 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 controlled conduct for the purposes of the operation; and s. 18 -- 20 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 16 (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 (g) identify the nature of the criminal activity (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 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 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 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 (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 will pass in the course of the operation. s. 18 -- 21 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 17 (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 (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 law enforcement agency. (5) The chief officer must ensure that written notes are kept of the particulars referred to in sub- 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 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. 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 (b) on application under section 21. s. 19 -- 22 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 18 (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 (b) an urgent authority for a cross-border 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 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 enforcement officer on behalf of the principal law enforcement officer, may apply to the chief officer for a variation of authority for any one or more of the following purposes— (a) to extend the period of validity of the authority (except as provided by section 20(2)); (b) to authorise additional or alternative persons to engage in controlled conduct for the purposes of the operation; (c) to authorise participants in the operation to engage in additional or alternative controlled conduct; (d) to identify additional suspects (to the extent known). (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. s. 21 -- 23 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 19 (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 application"); or (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 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 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 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 (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. s. 22 -- 24 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 20 23. Manner of varying authority (1) An authority may be varied (on application or otherwise) only— (a) by means of a written document signed by the chief officer (a "formal variation of 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, 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 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 authority was granted; and (b) must, as soon as practicable, prepare and give to the applicant a written document that complies with section 24. Note: The chief officer may delegate functions under this section—see Division 1 of Part 5. s. 23 -- 25 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 21 24. Form of variation of authority A variation of authority must— (a) identify the authorised operation for which the authority is in force; and (b) state the name and rank or position of the person 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— (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 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 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 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. Note: The chief officer may delegate functions under this section—see Division 1 of Part 5. s. 24 -- 26 of 97 -- Victorian Legislation Parliamentary Documents Part 2—Authorisation of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 22 Division 4—Effect of Authorities 26. Effect of authorities (1) While it has effect, an authority for a controlled operation— (a) authorises each law enforcement participant to engage in the controlled conduct specified in the authority in respect of the law enforcement participants; and (b) authorises each civilian participant (if any) to engage in the particular controlled conduct 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 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 (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. 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 than a defect that affects the application, authority or variation in a material particular. __________________ s. 26 -- 27 of 97 -- Victorian Legislation Parliamentary Documents Part 3—Conduct of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 23 PART 3—CONDUCT OF CONTROLLED OPERATIONS Division 1—Controlled Conduct Engaged in for purposes of Controlled Operations Authorised by Part 2 28. Protection from criminal responsibility for controlled conduct during authorised operations (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 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 intentionally inducing a person to commit an offence under a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; and (c) the conduct does not involve the participant engaging in any conduct that is likely to— (i) cause the death of, or serious injury to, any person; or (ii) involve the commission of a sexual offence against any person; and (d) if the participant is a civilian participant—he or she acts in accordance with the instructions of a law enforcement officer. s. 28 -- 28 of 97 -- Victorian Legislation Parliamentary Documents Part 3—Conduct of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 24 (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 participant in this jurisdiction; (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 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 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 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 for the operation; and (b) the conduct does not involve the participant intentionally inducing a person to commit an offence under a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; and s. 29 -- 29 of 97 -- Victorian Legislation Parliamentary Documents Part 3—Conduct of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 25 (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 (ii) involve the commission of a sexual offence against any person; and (d) if the participant is a civilian participant—he or she acts in accordance with the instructions of a law enforcement officer; and (e) the requirements (if any) specified in the regulations have been met. 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 conduct that is, or could have been authorised, under a law of this jurisdiction relating to the following— (a) arrest or detention of individuals; (b) searches of individuals; (c) entry onto, or searches or inspection of, premises; (d) searches, inspections or seizures of other property; (e) forensic procedure; (f) electronic surveillance devices or telecommunications interception; (g) identification procedures; (h) the acquisition or use of assumed identities; (i) any other matter concerning powers of criminal investigation. s. 30 -- 30 of 97 -- Victorian Legislation Parliamentary Documents Part 3—Conduct of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 26 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 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. 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 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 s. 31 -- 31 of 97 -- Victorian Legislation Parliamentary Documents Part 3—Conduct of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 27 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 person who engages in ancillary conduct that is an offence (whether or not the person is a participant in a controlled operation) is not criminally responsible for the offence if at the time the person engaged in the ancillary conduct he or she believed the related controlled conduct was being engaged in, or would be engaged in, by a participant in an authorised operation. Division 2—Compensation and Notification of Third Parties 33. Compensation for property loss or serious damage (1) If a person suffers loss of or serious damage to property as a direct result of an authorised operation, the State is liable to pay to the person compensation as agreed between the State and the person or, in default of agreement, as determined by action against the State in a court of competent jurisdiction. (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 activity that is controlled conduct); or (b) the person was a law enforcement officer at the time of suffering the loss or damage. s. 33 -- 32 of 97 -- Victorian Legislation Parliamentary Documents Part 3—Conduct of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 28 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 law enforcement agency on behalf of which the operation is conducted or a participant in the operation), the principal law enforcement officer for the operation must report the loss or damage to the chief officer of the law enforcement agency as soon as practicable. (2) The chief officer must take all reasonable steps to notify the owner of the property of the loss or damage. (3) The chief officer is not required to notify the owner of property under this section until the chief officer is satisfied that notification would not— (a) compromise or hinder the authorised operation; or (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 chief officer of the law enforcement agency as soon as practicable. Note: The chief officer may delegate functions under this section—see Division 1 of Part 5. s. 34 -- 33 of 97 -- Victorian Legislation Parliamentary Documents Part 3—Conduct of Controlled Operations Crimes (Controlled Operations) Act 2004 Act No. 16/2004 29 Division 3—Mutual Recognition 35. Mutual recognition of corresponding authorities The following provisions apply, with any necessary changes, to a corresponding authority under a corresponding law, and to a corresponding authorised operation under that law, as if the corresponding authority were an authority given under section 13 for a cross-border controlled operation— (a) section 26 (Effect of authorities); (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 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); (g) section 32 (Protection from criminal responsibility for certain ancillary conduct). __________________ s. 35 -- 34 of 97 -- Victorian Legislation Parliamentary Documents Part 4—Compliance and Monitoring Crimes (Controlled Operations) Act 2004 Act No. 16/2004 30 PART 4—COMPLIANCE AND MONITORING Division 1—Restrictions on Use, Communication and Publication of Information 36. Unauthorised disclosure of information (1) A person is guilty of an offence if— (a) the person intentionally, knowingly or recklessly discloses any information; and (b) the person knows that, or is reckless as to whether, the information relates to an authorised operation or a corresponding authorised operation; and (c) the person knows that, or is reckless as to whether, the disclosure is not made— (i) in connection with the administration or execution of this Act or a corresponding law; or (ii) for the purposes of any legal proceeding arising out of or otherwise related to this Act or a corresponding law or of any report of any such proceedings; or (iii) in accordance with any requirement imposed by law; 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 sub- section if the person commits an offence against sub-section (1) in circumstances in which the person— s. 36 -- 35 of 97 -- Victorian Legislation Parliamentary Documents Part 4—Compliance and Monitoring Crimes (Controlled Operations) Act 2004 Act No. 16/2004 31 (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 sub-section (2) is an indictable offence. 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 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 (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 in for the purposes of the operation; and (d) details of the outcome of the operation; and s. 37 -- 36 of 97 -- Victorian Legislation Parliamentary Documents Part 4—Compliance and Monitoring Crimes (Controlled Operations) Act 2004 Act No. 16/2004 32 (e) 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 (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 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 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. (2) The report must include the following details— (a) the number of formal authorities that have been granted or varied by the chief officer, and the number of formal applications for the granting or variation of authorities that have been refused by the chief officer, during the period to which the report relates; and (b) the number of urgent authorities or urgent variations of authorities that have been granted by the chief officer, and the number of urgent applications for authorities or urgent variations of authorities that have been refused by the chief officer, during the period to which the report relates; and s. 38 -- 37 of 97 -- Victorian Legislation Parliamentary Documents Part 4—Compliance and Monitoring Crimes (Controlled Operations) Act 2004 Act No. 16/2004 33 (c) the nature of the criminal activities against which the authorised operations were directed; and (d) the nature of the controlled conduct engaged in for the purposes of the authorised 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 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 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 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. (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 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. s. 38 -- 38 of 97 -- Victorian Legislation Parliamentary Documents Part 4—Compliance and Monitoring Crimes (Controlled Operations) Act 2004 Act No. 16/2004 34 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 work and activities of the agency under this Act 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 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 (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 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— (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 information from the report if satisfied on the advice of the chief officer of any of the grounds set out in sub-section (3). s. 39 -- 39 of 97 -- Victorian Legislation Parliamentary Documents Part 4—Compliance and Monitoring Crimes (Controlled Operations) Act 2004 Act No. 16/2004 35 (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 received the chief officer's advice under sub- 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 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. 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 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 (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 section 23(2)(a); and s. 40 -- 40 of 97 -- Victorian Legislation Parliamentary Documents Part 4—Compliance and Monitoring Crimes (Controlled Operations) Act 2004 Act No. 16/2004 36 (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. 41. General register (1) The chief officer of a law enforcement agency must cause a general register to be kept. (2) The general register is to specify— (a) for each application under this Act made by a law enforcement officer of the agency (including an application for variation of authority)— (i) the date of the application; and (ii) whether the application was formal or urgent; and (iii) whether the application was made in respect of a cross-border controlled operation, a local major controlled operation or a local minor controlled operation; and (iv) whether the application was granted, refused or withdrawn; and (v) if the application was refused or withdrawn—the date and time of the refusal or withdrawal; and (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 urgent; and (iii) the name and rank or position of the person who granted the authority; and s. 41 -- 41 of 97 -- Victorian Legislation Parliamentary Documents Part 4—Compliance and Monitoring Crimes (Controlled Operations) Act 2004 Act No. 16/2004 37 (iv) whether the operation authorised was a cross-border controlled operation, a local major controlled operation or a local minor controlled operation; and (v) each offence in respect of which 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 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 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— (A) the nature and quantity of the illicit goods; and (B) the route through which the illicit goods passed in the course of the operation; and (xi) details of any loss of or serious damage to property, or any personal injuries, occurring in the course of or as a direct result of the operation; and (c) for each variation of authority under this Act— (i) the date and time the variation was made; and s. 41 -- 42 of 97 -- Victorian Legislation Parliamentary Documents Part 4—Compliance and Monitoring Crimes (Controlled Operations) Act 2004 Act No. 16/2004 38 (ii) whether the variation was formal or urgent; and (iii) the name and rank or position of the person who made the variation. Division 3—Inspections 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 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 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 (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 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 reasonably requires to enable the relevant Ombudsman to perform functions under this section. __________________ s. 42 -- 43 of 97 -- Victorian Legislation Parliamentary Documents Part 5—General Crimes (Controlled Operations) Act 2004 Act No. 16/2004 39 PART 5—GENERAL Division 1—Delegation 43. Introduction (1) Except as provided by this Division (and despite any other Act or law to the contrary) the functions of a chief officer under this Act may not be delegated to any other person. (2) For the avoidance of doubt, sub-section (1) prevails over section 6A of the Police Regulation Act 1958. 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 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)); (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 controlled operations (including the variation and cancellation of authorities for those operations); (ii) notifications under section 34(2). s. 43 -- 44 of 97 -- Victorian Legislation Parliamentary Documents Part 5—General Crimes (Controlled Operations) Act 2004 Act No. 16/2004 40 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 officer's 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)). (2) In this section— "senior officer" of the Australian Crime Commission, means any of the following— (a) the Director National Operations; (b) the General Manager National Operations; (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 Commonwealth) and who holds a position that is prescribed by the regulations for the purposes of this definition. Division 2—General 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 proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting s. 45 -- 45 of 97 -- Victorian Legislation Parliamentary Documents Part 5—General Crimes (Controlled Operations) Act 2004 Act No. 16/2004 41 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 the meaning of a corresponding law granted under 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 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 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 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; (b) may differ according to differences in time, place or circumstances. __________________ s. 47 -- 46 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 42 PART 6—FISHERIES ACT 1995 48. Repeal of current immunity provision Section 110A of the Fisheries Act 1995 is repealed. 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; s. 48 See: Act No. 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 -- 47 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 43 "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; s. 49 -- 48 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 44 "relevant offence" means— (a) an offence against section 36, 37, 40, 42, 44, 67, 68A, 76, 111, 111A to 111C, 114, 116, 119A or 119B; or (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 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— (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. s. 49 -- 49 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 45 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— s. 49 -- 50 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 46 (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 s. 49 -- 51 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 47 (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 s. 49 -- 52 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 48 (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 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— 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. s. 49 -- 53 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 49 (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. s. 49 -- 54 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 50 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. s. 49 -- 55 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 51 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 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. (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. s. 49 -- 56 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 52 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. s. 49 -- 57 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 53 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. s. 49 -- 58 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 54 (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— s. 49 -- 59 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 55 (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 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 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 sub-section (2) is an indictable offence. s. 49 -- 60 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 56 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 Ombudsman setting out the details required by sub- section (2) in relation to authorised s. 49 -- 61 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 57 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. s. 49 -- 62 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 58 (3) The Ombudsman may require the Secretary to furnish additional information covering any authorised operation to which a report relates. (4) Nothing in sub-section (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 Ombudsman (1) The Ombudsman 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 Ombudsman 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 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 public, could reasonably be expected to— s. 49 -- 63 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 59 (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 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). (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 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 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 Ombudsman under section 39 of the Crimes (Controlled Operations) Act 2004. s. 49 -- 64 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 60 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 s. 49 -- 65 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 61 (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. s. 49 -- 66 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 62 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 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 Ombudsman— (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 Ombudsman any information that the Ombudsman 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 Ombudsman any assistance the Ombudsman reasonably 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, the functions or powers of the Secretary under this Part may not be delegated to any other person. s. 49 -- 67 of 97 -- Victorian Legislation Parliamentary Documents Part 6—Fisheries Act 1995 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 63 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.'. __________________ s. 49 -- 68 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 64 PART 7—WILDLIFE ACT 1975 50. Repeal of current immunity provision Section 63 of the Wildlife Act 1975 is repealed. 51. New Part IX inserted After Part VIII of the Wildlife Act 1975 insert— 'PART IX—CONTROLLED OPERATIONS Division 1—Introduction 71. 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 74H, would constitute a relevant offence; s. 50 See: Act No. 8699. Reprint No. 7 as at 16 November 2002 and amending Act No. 9/2003. LawToday: www.dms. dpc.vic. gov.au -- 69 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 65 "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; or (c) a member of a police force of the 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 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 an offence against section 41, 42, 43, 45, 46, 47, 47D, 50, 51 or 76; s. 51 -- 70 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 66 "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. 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 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 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 operation. s. 51 -- 71 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 67 (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. 74. Determination of applications 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 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 operation may not be granted unless the Secretary is satisfied on reasonable grounds— s. 51 -- 72 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 68 (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 s. 51 -- 73 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 69 (iii) result in unlawful loss of or serious damage to property (other than illicit goods). 74B. Form of authority (1) An authority to conduct a controlled operation must— (a) be in writing under the seal of 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 s. 51 -- 74 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 70 (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 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— 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 74C. 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 74D. (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. s. 51 -- 75 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 71 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 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. s. 51 -- 76 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 72 74E. Determination of application to vary authority (1) After considering an application for a variation of authority, and any additional information furnished under section 74D(4), 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 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— (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 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 an application for variation was made, to the purposes referred to in section 74D(1) in respect of which the application was made. s. 51 -- 77 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 73 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 at any time and for any reason. (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. (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 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 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 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. s. 51 -- 78 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 74 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 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. s. 51 -- 79 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 75 74K. 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 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 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 74L. 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. s. 51 -- 80 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 76 (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 74M. 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— s. 51 -- 81 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 77 (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 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 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 sub-section (2) is an indictable offence. s. 51 -- 82 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 78 74N. 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. 74O. 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 Ombudsman setting out the details required by sub- section (2) in relation to authorised s. 51 -- 83 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 79 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. s. 51 -- 84 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 80 (3) The Ombudsman may require the Secretary to furnish additional information covering any authorised operation to which a report relates. (4) Nothing in sub-section (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. 74P. Annual report by Ombudsman (1) The Ombudsman 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 Ombudsman by the Secretary under section 74O; 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. s. 51 -- 85 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 81 (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 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 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). (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 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 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 Ombudsman under section 39 of the Crimes (Controlled Operations) Act 2004. s. 51 -- 86 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 82 74Q. 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 74L or 74N. 74R. 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 s. 51 -- 87 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 83 (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 74N; 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. s. 51 -- 88 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 84 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 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 Ombudsman— (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 Ombudsman any information that the Ombudsman 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 Ombudsman any assistance the Ombudsman reasonably 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, the functions or powers of the Secretary under this Part may not be delegated to any other person. s. 51 -- 89 of 97 -- Victorian Legislation Parliamentary Documents Part 7—Wildlife Act 1975 Crimes (Controlled Operations) Act 2004 Act No. 16/2004 85 74U. Evidence of authorities A document purporting to be an authority granted under section 74— (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. 74V. 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.'. __________________ s. 51 -- 90 of 97 -- Victorian Legislation Parliamentary Documents Part 8—Consequential and Transitional Crimes (Controlled Operations) Act 2004 Act No. 16/2004 86 PART 8—CONSEQUENTIAL AND TRANSITIONAL 52. Crimes Act 1958 Sections 68(2), 194(5) and 195A(5) of the Crimes Act 1958 are repealed. 53. Drugs, Poisons and Controlled Substances Act 1981 Section 51 of the Drugs, Poisons and Controlled Substances Act 1981 is repealed. 54. Gambling Regulation Act 2003 Section 2.6.8 of the Gambling Regulation Act 2003 is repealed. See: Act No. 6231. Reprint No. 17 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 s. 52 See: Act No. 9719. Reprint No. 6 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: Act No. 114/2003. LawToday: www.dms. dpc.vic. gov.au -- 91 of 97 -- Victorian Legislation Parliamentary Documents Part 8—Consequential and Transitional Crimes (Controlled Operations) Act 2004 Act No. 16/2004 87 55. Prostitution Control Act 1994 Section 14(2) of the Prostitution Control Act 1994 is repealed. 56. Summary Offences Act 1966 Section 58 of the Summary Offences Act 1966 is repealed. 57. Vagrancy Act 1966 Section 17 of the Vagrancy Act 1966 is repealed. See: Act No. 102/1994. Reprint No. 5 as at 20 September 2001 and amending Act No. 52/2003. LawToday: www.dms. dpc.vic. gov.au s. 55 See: Act No. 7405. Reprint No. 8 as at 1 January 2003 and amending Act Nos 10/2003 and 80/2003. LawToday: www.dms. dpc.vic. gov.au See: Act No. 7393. Reprint No. 4 as at 14 March 1996 and amending Act Nos 47/2000 and 74/2000. LawToday: www.dms. dpc.vic. gov.au -- 92 of 97 -- Victorian Legislation Parliamentary Documents Part 8—Consequential and Transitional Crimes (Controlled Operations) Act 2004 Act No. 16/2004 88 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 of this section. ═══════════════ s. 58 -- 93 of 97 -- Victorian Legislation Parliamentary Documents Crimes (Controlled Operations) Act 2004 Act No. 16/2004 89 ENDNOTES † Minister's second reading speech— Legislative Assembly: 1 April 2004 Legislative Council: 11 May 2004 The long title for the Bill for this Act was "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." Endnotes -- 94 of 97 -- Victorian Legislation Parliamentary Documents Crimes (Controlled Operations) Act 2004 Act No. 16/2004 90 INDEX Subject Section Actamendments to other Acts 48–57 commencement 2 Crown bound by 5 purposes 1 relationship to other laws and matters 4 transitional provision 58 Annual reports 39 Australian Crime Commission See Chief officers; Law enforcement agencies Authorised operations (def.) 3 Chief officers definition 3 delegation by 43–45 powers and duties regarding authorities – controlled operations 12–25 general register 41 notification of property loss, damage, injuries 34 records 40, 42 reports regarding authorised operations 38–39 retention of documents 40 Civil liability 29–31 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 29–31 protection from criminal responsibility 28, 30–32 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 33–34 protection of participants in 28–32 reports 37–39 types of 8 Controlled operations - Authorities applications – formal, urgent 12 cancellation 25, 31 defects 27 definition of authority 3 determination of applications 13 -- 95 of 97 -- Victorian Legislation Parliamentary Documents Crimes (Controlled Operations) Act 2004 Act No. 16/2004 91 Subject Section duration 18, 19 effect of 26 evidence 46 extension 20, 21 form – formal, urgent 18 matters to be taken into account 14–17 reports and records 38, 40–42 variation applications – formal, urgent 21 determinations 22 effect of being unaware 31 grounds for, time for making 20 manner and form 23–24 Corresponding authorised operations 3, 35 Corresponding authorities 3, 35 Corresponding laws 3, 46 Corresponding participants (def.) 3 Criminal responsibility protection from 28, 30–32 Cross-border controlled operations See Controlled operations Definitions 3, 6, 7, 9–12, 18, 21, 23, 32, 45 Evidence 4, 46 Fisheries Act 1995 amendments to 48–49 General register 41 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 Law enforcement officers 3, 12, 21, 23 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 Mutual recognition 35 Offences disclosure of information 36 relevant offence (def.) 3 Ombudsman 38, 39, 42 definition of relevant Ombudsman 3 Personal injuries 34, 37–38, 41 Police See Law enforcement officers -- 96 of 97 -- Victorian Legislation Parliamentary Documents Crimes (Controlled Operations) Act 2004 Act No. 16/2004 92 Subject Section Principal law enforcement officers definition 3 powers and duties regarding notification of personal injury, property loss 34 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 37–38, 41 notification of loss, serious damage 34 Records general register 41 inspection of 42 retention of documents 40 Register See General register Regulations 47 Reports 37–39 Transitional provision 58 Victoria Police See Chief officers; Law enforcement agencies Wildlife Act 1975 amendments to 50–51 -- 97 of 97 --