Crimes (Controlled Operations) Act 2008


Published: 2019-12-01

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Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au

Australian Capital Territory

Crimes (Controlled Operations) Act 2008

A2008-32

Republication No 3

Effective: 1 December 2019

Republication date: 1 December 2019

Last amendment made by A2019-18 (republication for amendments by A2018-52 as amended by A2019-18)

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About this republication

The republished law

This is a republication of the Crimes (Controlled Operations) Act 2008 (including any

amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on

1 December 2019. It also includes any commencement, amendment, repeal or expiry affecting

this republished law to 1 December 2019.

The legislation history and amendment history of the republished law are set out in endnotes 3

and 4.

Kinds of republications

The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT

legislation register at www.legislation.act.gov.au):

• authorised republications to which the Legislation Act 2001 applies

• unauthorised republications.

The status of this republication appears on the bottom of each page.

Editorial changes

The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial

amendments and other changes of a formal nature when preparing a law for republication.

Editorial changes do not change the effect of the law, but have effect as if they had been made by

an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The

changes are made if the Parliamentary Counsel considers they are desirable to bring the law into

line, or more closely into line, with current legislative drafting practice.

This republication includes amendments made under part 11.3 (see endnote 1).

Uncommenced provisions and amendments

If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law

are accessible on the ACT legislation register (www.legislation.act.gov.au). For more

information, see the home page for this law on the register.

Modifications

If a provision of the republished law is affected by a current modification, the

symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation

Act 2001, section 95.

Penalties

At the republication date, the value of a penalty unit for an offence against this law is $160 for an

individual and $810 for a corporation (see Legislation Act 2001, s 133).

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Australian Capital Territory

Crimes (Controlled Operations) Act 2008

Contents

Page

Part 1 Preliminary

1 Name of Act 2

3 Dictionary 2

4 Notes 2

5 Offences against Act—application of Criminal Code etc 2

6 Objects of Act 3

7 Relationship to other laws and matters 3

8 Controlled operation taken to be conducted in ACT 5

Part 2 Authorisation of controlled operations

9 Application for authority to conduct controlled operation 6

10 Decision on application for authority 7

11 Form of authority 8

Contents

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12 Duration of authority 10

13 Amendment of authority 10

14 Form of amendment of authority 13

15 Cancellation of authority 13

16 Effect of authority 14

17 Defect in authority 14

Part 3 Conduct of controlled operations

Division 3.1 Controlled conduct engaged in for authorised operation

18 Protection from criminal responsibility for controlled conduct during authorised operation 15

19 Civil liability not incurred 16

20 Effect of s 18 and s 19 on other laws relating to criminal investigation 17

21 Effect of being unaware of amendment or cancellation of authority 17

22 Protection from criminal responsibility for certain ancillary conduct 18

Division 3.2 Compensation and notification of third parties

23 Compensation for property loss or serious damage 18

24 Notification requirements 19

Division 3.3 Mutual recognition

25 Mutual recognition of corresponding authority 20

Part 4 Compliance and monitoring

Division 4.1 Restrictions on disclosure of information

26 Unauthorised disclosure of information 21

Division 4.2 Reporting and record-keeping

27 Principal law enforcement officers’ reports 22

28 Chief officers’ annual reports 23

29 Keeping documents connected with authorised operation 25

30 General register 26

Division 4.3 Inspections

31 Inspection of records by ombudsman 28

Part 5 Miscellaneous

32 Evidence of authorities 29

Contents

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33 Delegation 29

34 Regulation-making power 30

Dictionary 31

Endnotes

1 About the endnotes 35

2 Abbreviation key 35

3 Legislation history 36

4 Amendment history 37

5 Earlier republications 38

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Australian Capital Territory

Crimes (Controlled Operations) Act 2008

An Act to provide for the authorisation, conduct and monitoring of controlled

operations

Part 1 Preliminary

Section 1

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Part 1 Preliminary

1 Name of Act

This Act is the Crimes (Controlled Operations) Act 2008.

3 Dictionary

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this

Act, and includes references (signpost definitions) to other terms defined

elsewhere in this Act.

For example, the signpost definition ‘urgent application—see section 9.’

means that the term ‘urgent application’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to

the entire Act unless the definition, or another provision of the Act,

provides otherwise or the contrary intention otherwise appears (see

Legislation Act, s 155 and s 156 (1)).

4 Notes

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

5 Offences against Act—application of Criminal Code etc

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see

Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility

(including burdens of proof and general defences), and defines terms used

for offences to which the Code applies (eg conduct, intention,

recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties

that are expressed in penalty units.

Preliminary Part 1

Section 6

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6 Objects of Act

The objects of this Act are—

(a) to provide for the authorisation, conduct and monitoring of

controlled operations, including operations conducted in the

ACT, in the ACT and 1 or more other jurisdictions or in 1 or

more participating jurisdictions—

(i) for the purpose of obtaining evidence that may lead to the

prosecution of people for particular offences; and

(ii) that involve or may involve conduct for which participants

in the operation would otherwise be criminally responsible;

and

(b) to facilitate mutual recognition of things done in relation to

controlled operations authorised under laws of other

jurisdictions corresponding to this Act; and

(c) to ensure, as far as practicable, that appropriately trained people

may act as participants in authorised operations; and

(d) to ensure that a person who may act as a participant in an

authorised operation engages in otherwise unlawful activities

only as part of the authorised operation; and

(e) to provide appropriate protection from civil and criminal

liability for people acting under this Act; and

(f) to clarify the status of evidence obtained by participants in

authorised operations.

7 Relationship to other laws and matters

(1) This Act does not affect any territory law that authorises, controls or

monitors the conduct of operations wholly within the ACT—

(a) that are for the purpose of obtaining evidence that may lead to

the prosecution of a person for an offence; and

Part 1 Preliminary

Section 7

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(b) that involve, or may involve, conduct for which participants in

the operation would otherwise be criminally responsible.

Note Territory law includes the common law (see Legislation Act, dict, pt 1,

defterritory law and law, of the Territory).

(2) A function conferred in relation to the activities of the Australian

Crime Commission under this Act is only conferred for the purpose

of the function conferred on the Australian Crime Commission under

the Australian Crime Commission (ACT) Act 2003 relating to

suspected serious and organised crime as defined in that Act.

(3) Subject to subsection (4), this Act does not limit a discretion a court

has—

(a) to admit or exclude evidence in a proceeding; or

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

(4) However, in deciding whether evidence should be admitted or

excluded in a proceeding, the fact that the evidence was obtained as

a result of a person engaging in criminal activity or corrupt conduct

is to be disregarded if—

(a) the person was a participant or corresponding participant acting

in the course of an authorised operation or corresponding

authorised operation; and

(b) the criminal activity or corrupt conduct was controlled conduct

within the meaning of this Act or controlled conduct within the

meaning of a corresponding law.

(5) The following Acts do not apply to investigations, operations,

activities and records under this Act:

(a) the Freedom of Information Act 2016;

(b) the Territory Records Act 2002.

Preliminary Part 1

Section 8

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8 Controlled operation taken to be conducted in ACT

For this Act, a controlled operation in relation to a relevant offence is

taken to be conducted in the ACT, whether or not it is also conducted

in another jurisdiction, if a participant in the operation is a law

enforcement officer of the ACT.

Part 2 Authorisation of controlled operations

Section 9

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Part 2 Authorisation of controlled operations

9 Application for authority to conduct controlled operation

(1) A law enforcement officer of a law enforcement agency may apply to

the chief officer of the agency for an authority to conduct a controlled

operation on behalf of the agency.

(2) An application for an authority may be made—

(a) in writing signed by the applicant (a standard application); or

(b) if the applicant has reason to believe that the delay caused by

making a standard application may affect the success of the

operation—orally in person or by telephone, fax, email or any

other means of communication (an urgent application).

(3) This part does not prevent an application for an authority being made

in relation to a controlled operation that has been the subject of a

previous application.

(4) In any application, whether standard 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 or not the proposed operation, or any other

controlled operation in relation to the same criminal activity or

corrupt conduct, has been the subject of an earlier application

for an authority or amendment of an authority and, if so, whether

or not the authority or amendment was granted.

(5) The chief officer may require the applicant to give the chief officer

the additional information the chief officer reasonably needs to decide

the application.

(6) As soon as practicable after making an urgent application, the

applicant must make a written record of the application and give a

copy of it to the chief officer.

Authorisation of controlled operations Part 2

Section 10

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10 Decision on application for authority

(1) After considering an application for an authority to conduct a

controlled operation, and any additional information given under

section 9 (5), the chief officer may—

(a) authorise the operation by granting the authority, either

unconditionally or subject to conditions; or

(b) refuse the application.

(2) An authority to conduct a controlled operation may not be granted

unless the chief officer is satisfied on reasonable grounds that—

(a) a relevant offence has been, is being or is likely to be committed;

and

(b) the controlled operation will be, or is likely to be, conducted in

the ACT, in the ACT and 1 or more other jurisdictions or in 1 or

more participating jurisdictions; and

(c) the nature and extent of the suspected criminal activity or

corrupt conduct justify the conduct of a controlled operation in

the ACT, in the ACT and 1 or more other jurisdictions or in 1 or

more participating jurisdictions; and

(d) any unlawful conduct involved in conducting the operation will

be limited to the minimum necessary to conduct an effective

controlled operation; and

(e) the operation will be conducted in a way that will minimise the

risk of more illicit goods being under the control of people, other

than law enforcement officers, at the end of the operation than

are reasonably necessary to enable the officers to achieve the

purpose of the controlled operation; and

(f) the proposed controlled conduct will be able to be accounted for

in a way that will enable the reporting requirements of part 4 to

be complied with; and

Part 2 Authorisation of controlled operations

Section 11

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(g) the operation will not be conducted in a way that a person is

likely to be induced to—

(i) commit an offence against a law of any jurisdiction or the

Commonwealth that the person would not otherwise have

committed; or

(ii) engage in corrupt conduct; and

(h) any conduct involved in the operation will not—

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

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

(iii) involve the commission of a sexual offence against any

person; or

(iv) result in unlawful loss of or serious damage to property

(other than illicit goods); and

(i) any role assigned to a civilian participant in the operation is not

one that could be adequately performed by a law enforcement

officer.

11 Form of authority

(1) An authority to conduct a controlled operation may be granted—

(a) in writing signed by the chief officer (a standard authority); or

(b) if the chief officer is satisfied that the delay caused by granting

a standard authority may affect the success of the operation—

orally in person or by telephone, fax, email or any other means

of communication (an urgent authority).

(2) This part does not prevent an authority being granted in relation to a

controlled operation that has been the subject of a previous authority.

Authorisation of controlled operations Part 2

Section 11

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(3) An authority, whether standard 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 standard application or an

urgent application; and

(d) identify each person who may engage in controlled conduct for

the purposes of the controlled operation; and

(e) state the participating jurisdictions in which the controlled

conduct is, or is likely, to be engaged in; and

(f) identify the nature of the criminal activity (including the

suspected relevant offences) or corrupt conduct in relation to

which the controlled conduct is to be engaged in; and

(g) identify—

(i) in relation to the law enforcement participants—the nature

of the controlled conduct that the participants may engage

in; and

(ii) in relation to the civilian participants—the particular

controlled conduct (if any) that each participant may

engage in; and

(h) identify (to the extent known) any suspect; and

(i) state the period (not longer than 3 months for a standard

authority or 7 days for an urgent authority) of validity of the

authority; and

(j) state any conditions to which the conduct of the operation is

subject; and

(k) state the date and time when the authority is granted; and

Part 2 Authorisation of controlled operations

Section 12

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(l) 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.

(4) A person is sufficiently identified for subsection (3) (d) if the person

is identified—

(a) by an assumed name under which the person is operating; or

(b) by a code name or code number—

so long as the assumed name, code name or code number can be

matched to the person’s identity.

(5) The chief officer must ensure that written notes are kept of the details

mentioned in subsection (3) for each urgent authority.

12 Duration of authority

Unless sooner cancelled, an authority has effect for the period of

validity stated in it in accordance with section 11 (3) (i).

13 Amendment of authority

(1) The chief officer may amend an authority—

(a) at any time on the chief officer’s own initiative; or

(b) on application under subsection (3).

(2) However, an amendment cannot be made that has the effect of—

(a) extending the period of validity of an urgent authority; or

(b) extending the period of validity of a standard authority for

longer than 3 months after the date it was granted.

Authorisation of controlled operations Part 2

Section 13

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(3) The principal law enforcement officer for an authorised operation, or

any other law enforcement officer on behalf of the principal law

enforcement officer, may apply to the chief officer for an amendment

of an authority for any 1 or more of the following purposes:

(a) to extend the period of validity of the authority (except as

provided by subsection (2));

(b) to authorise additional or alternative people to engage in

controlled conduct for the purposes of the operation;

(c) to authorise participants in the operation to engage in additional

or alternative controlled conduct;

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

(4) More than 1 application for amendment may be made in relation to

the same authority.

(5) An application for amendment of an authority may be made—

(a) in writing signed by the applicant (a standard amendment

application); or

(b) if the applicant has reason to believe that the delay caused by

making a standard amendment application may affect the

success of the operation—orally in person or by telephone, fax,

email or any other means of communication (an urgent

amendment application).

(6) The chief officer may require the applicant to give the information

concerning the proposed amendment that is necessary for the chief

officer’s proper consideration of the application.

(7) As soon as practicable after making an urgent amendment

application, the applicant must make a written record of the

application and give a copy of it to the chief officer.

Part 2 Authorisation of controlled operations

Section 13

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(8) After considering an application for amendment of an authority, and

any additional information given under subsection (6), the chief

officer may—

(a) amend the authority in accordance with the application, either

unconditionally or subject to conditions; or

(b) refuse the application.

(9) Section 10 (2) applies to an application for amendment of an authority

under this section in the same way as it applies to an application for

an authority under section 10 (1).

(10) Without limiting subsection (9), an amendment of an authority may

not be granted unless the chief officer is satisfied on reasonable

grounds that the amendment will not authorise a significant alteration

of the nature of the authorised operation concerned.

(11) An amendment of an authority may be granted only—

(a) in writing signed by the chief officer (a standard amendment of

authority); or

(b) if the chief officer is satisfied that the delay caused by granting

a standard amendment of authority may affect the success of the

operation—orally in person or by telephone, fax, email or any

other means of communication (an urgent amendment of

authority).

(12) The chief officer must—

(a) ensure that written notes are kept of the following matters:

(i) the date and time when the amendment of authority was

granted;

(ii) the identity of the law enforcement officer to whom the

amendment of authority was granted;

(iii) particulars of the amendments of the original authority that

are approved under this section; and

Authorisation of controlled operations Part 2

Section 14

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(b) as soon as practicable, prepare and give to the applicant a written

amendment of authority that complies with section 14.

(13) The applicant must take all reasonable steps to inform participants in

a controlled operation about the grant of a standard amendment of

authority no later than 48 hours after the day the standard amendment

of authority is granted.

14 Form of amendment of authority

An amendment of an authority must—

(a) identify the authorised operation for which the authority is in

force; and

(b) state the name, and rank or position, of the person granting the

amendment; and

(c) if the application for amendment is made under section 13 (3)—

state the name of the applicant; and

(d) state whether the application is a standard amendment

application or was an urgent amendment application; and

(e) state the date and time when the amendment of an authority is

or was granted; and

(f) describe the amendment having regard to the purposes

mentioned in section 13 (3) in relation to which the application

was made.

15 Cancellation of authority

(1) The chief officer may, by written order given to the principal law

enforcement officer for an authorised operation, cancel the authority

at any time and for any reason.

(2) Without limiting subsection (1), the chief officer may cancel an

authority for an authorised operation at any time at the request of the

principal law enforcement officer for the operation.

Part 2 Authorisation of controlled operations

Section 16

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(3) Cancellation of an authority for a controlled operation takes effect—

(a) when the order is made; or

(b) if the order states a later time of effect—at the later time.

16 Effect of authority

(1) While it has effect, an authority for a controlled operation

authorises—

(a) each law enforcement participant to engage in the controlled

conduct stated in the authority in relation to the law enforcement

participants; and

(b) each civilian participant (if any) to engage in the particular

controlled conduct (if any) stated in the authority in relation to

the participant; and

(c) each participant to engage in that conduct in the ACT or any

participating jurisdiction (subject to any corresponding law of

that participating jurisdiction).

(2) The authority to engage in controlled conduct given to a participant

cannot be delegated to any other person.

17 Defect in authority

An application for an authority or amendment of an authority, and

any authority or amendment of an authority granted on the basis of an

application, is not invalidated by any defect, other than a defect that

affects the application, authority or amendment in a material

particular.

Conduct of controlled operations Part 3 Controlled conduct engaged in for authorised operation Division 3.1

Section 18

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Part 3 Conduct of controlled operations

Division 3.1 Controlled conduct engaged in for authorised operation

18 Protection from criminal responsibility for controlled conduct during authorised operation

Despite any other territory law, a participant who engages in conduct

(whether in the ACT or elsewhere) in an authorised operation in the

course of, and for the purposes of, the operation is not, if engaging in

that conduct is an offence, criminally responsible for the offence if—

(a) the conduct is authorised by, and is engaged in 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 against a law of any

jurisdiction or the Commonwealth that the person would not

otherwise have committed; 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—the participant acts in

accordance with the instructions of a law enforcement officer.

Part 3 Conduct of controlled operations Division 3.1 Controlled conduct engaged in for authorised operation

Section 19

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19 Civil liability not incurred

(1) This section applies if a controlled operation has been authorised by

the chief officer of a law enforcement agency under section 10.

(2) A participant in the authorised operation does not incur any civil

liability because of conduct that the participant engages in if—

(a) the participant engages in the conduct in the course of, and for

the purposes of, the operation in accordance with the authority

for the operation; and

(b) the conduct does not involve the participant intentionally

inducing a person to—

(i) commit an offence under a law of any jurisdiction or the

Commonwealth that the person would not otherwise have

committed; or

(ii) engage in corrupt conduct; 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—the participant acts in

accordance with the instructions of a law enforcement officer;

and

(e) the requirements (if any) prescribed by regulation have been

met.

(3) Any liability that would, apart from this section, attach to the

participant, attaches instead to the Territory.

Conduct of controlled operations Part 3 Controlled conduct engaged in for authorised operation Division 3.1

Section 20

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20 Effect of s 18 and s 19 on other laws relating to criminal investigation

Section 18 and section 19 do not apply to a person’s conduct that is,

or could have been, authorised under a territory law relating to the

following:

(a) arrest or detention of individuals;

(b) searches of individuals;

(c) entry onto, or searches or inspection of, premises;

(d) searches, inspections or seizures of other property;

(e) forensic procedures;

(f) electronic surveillance devices or telecommunications

interception;

(g) identification procedures;

(h) the acquisition or use of assumed identities;

(i) any other matter concerning powers of criminal investigation.

21 Effect of being unaware of amendment or cancellation of authority

(1) If an authority for a controlled operation is amended 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 amended in that way, for so

long as the participant—

(a) is unaware of the amendment; and

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

(2) If an authority for a controlled operation is cancelled, this part

continues to apply to a participant in the operation as if the authority

had not been cancelled, for so long as the participant—

(a) is unaware of the cancellation; and

Part 3 Conduct of controlled operations Division 3.2 Compensation and notification of third parties

Section 22

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

22 Protection from criminal responsibility for certain ancillary conduct

(1) This section applies to conduct (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 (apart from section 18) be criminally responsible

(the related controlled conduct).

Examples—ancillary conduct

1 aiding and abetting (see Criminal Code, s 45)

2 conspiracy (see Criminal Code, s 48)

(2) Despite any other territory law, a person who engages in ancillary

conduct that is an offence is not criminally responsible for the offence

if at the time the person engaged in the ancillary conduct—

(a) the person believed the related controlled conduct was being

engaged in, or would be engaged in, by a participant in an

authorised operation; and

(b) the person was a participant in, or was otherwise authorised to

know about, the operation.

Division 3.2 Compensation and notification of third parties

23 Compensation for property loss or serious damage

(1) If a person suffers loss of or serious damage to property as a direct

result of an authorised operation conducted under this Act by the

Australian Federal Police, the Territory is liable to pay to the person

compensation as agreed between the Territory and the person or, in

default of agreement, as decided by action against the Territory in a

court of competent jurisdiction.

Conduct of controlled operations Part 3 Compensation and notification of third parties Division 3.2

Section 24

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(2) Subsection (1) does not apply if the person—

(a) suffered the loss or damage in the course of, or as a direct result

of, engaging in any criminal activity or corrupt conduct (other

than criminal activity or corrupt conduct that is controlled

conduct); or

(b) was a law enforcement officer involved in the authorised

operation at the time of suffering the loss or damage.

24 Notification requirements

(1) If any loss of or serious damage to property occurs in the course of or

as a direct result of an authorised operation (other than property of the

law enforcement agency on behalf of which the operation is

conducted or a participant in the operation), the principal law

enforcement officer for the operation must report the loss or damage

to the chief officer of the law enforcement agency as soon as

practicable.

(2) The chief officer must take all reasonable steps to notify the owner of

the property of the loss or damage.

(3) The chief officer is not required to notify the owner of the property

until 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.

Part 3 Conduct of controlled operations Division 3.3 Mutual recognition

Section 25

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Division 3.3 Mutual recognition

25 Mutual recognition of corresponding authority

The following provisions apply, with any necessary changes, to a

corresponding authority under a corresponding law, and to a

corresponding authorised operation under that law, as if the

corresponding authority were an authority given under section 10:

(a) section 16 (Effect of authority);

(b) section 17 (Defect in authority);

(c) section 18 (Protection from criminal responsibility for

controlled conduct during authorised operation);

(d) section 19 (Civil liability not incurred);

(e) section 20 (Effect of s 18 and s 19 on other laws relating to

criminal investigation);

(f) section 21 (Effect of being unaware of amendment or

cancellation of authority);

(g) section 22 (Protection from criminal responsibility for certain

ancillary conduct).

Compliance and monitoring Part 4 Restrictions on disclosure of information Division 4.1

Section 26

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Part 4 Compliance and monitoring

Division 4.1 Restrictions on disclosure of information

26 Unauthorised disclosure of information

(1) A person commits an offence if—

(a) the person is a participant in, or is otherwise authorised to have

information about, an authorised operation or a corresponding

authorised operation; and

(b) the person discloses information; and

(c) the information relates to the authorised operation or

corresponding authorised operation; and

(d) 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 proceeding; or

(iii) in accordance with any requirement imposed by law.

Maximum penalty: imprisonment for 2 years.

(2) A person commits an offence if the person commits an offence

against subsection (1) in circumstances in which the person—

(a) intends to endanger the health or safety of any person; or

(b) is reckless about whether the disclosure of the information

endangers or will endanger the health or safety of any person.

Maximum penalty: imprisonment for 10 years.

Part 4 Compliance and monitoring Division 4.2 Reporting and record-keeping

Section 27

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(3) A person commits an offence if the person commits an offence

against subsection (1) in circumstances in which the person––

(a) intends to prejudice the effective conduct of an authorised

operation or a corresponding authorised operation; or

(b) is reckless about whether the disclosure of the information

prejudices or will prejudice the effective conduct of an

authorised operation or a corresponding authorised operation.

Maximum penalty: imprisonment for 2 years.

Division 4.2 Reporting and record-keeping

27 Principal law enforcement officers’ reports

(1) Within 2 months after the completion of an authorised operation, the

principal law enforcement officer for the operation must make a

report in accordance with this section to the chief officer of the law

enforcement agency.

(2) The report must include the following details:

(a) the dates and times when the authorised operation began and

was completed;

(b) the nature of the controlled conduct engaged in for the purposes

of the operation;

(c) details of the outcome of the operation;

(d) if the operation involved illicit goods, a statement (to the extent

known) of—

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

(ii) the route through which the illicit goods passed in the

course of the operation;

Compliance and monitoring Part 4 Reporting and record-keeping Division 4.2

Section 28

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(e) details of any loss of or serious damage to property, or any

personal injuries, occurring in the course of or as a direct result

of the operation.

28 Chief officers’ annual reports

(1) As soon as practicable after 30 July in each year, the chief officer of

each law enforcement agency must give the Minister a report setting

out the details required by subsection (2) in relation to controlled

operations conducted on behalf of the agency during the previous

financial year.

(2) The report must include the following details:

(a) the number of standard authorities that were granted or amended

by the chief officer, and the number of standard applications for

the granting or amendment of authorities that were refused by

the chief officer, during the period to which the report relates;

(b) the number of urgent authorities or urgent amendments of

authorities that were granted by the chief officer, and the number

of urgent applications for authorities or urgent amendments of

authorities that were refused by the chief officer, during the

period to which the report relates;

(c) the nature of the criminal activities or corrupt conduct against

which the authorised operations were directed;

(d) the nature of the controlled conduct engaged in for the purposes

of the authorised operations;

(e) if any of the authorised operations involved illicit goods––a

statement (to the extent known) of—

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

(ii) the route through which the illicit goods passed in the

course of the operations;

Part 4 Compliance and monitoring Division 4.2 Reporting and record-keeping

Section 28

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(f) details of any loss of or serious damage to property, or any

personal injuries, occurring in the course of or as a direct result

of the authorised operations;

(g) the number of authorities cancelled by the chief officer or that

expired during the period to which the report relates;

(h) any seizure, arrest and prosecution arising from the authorised

operations.

(3) The Minister may require the chief officer to give additional

information in relation to any authorised operation to which a report

relates.

(4) The details mentioned in subsection (2) must be classified into

controlled operations conducted in the ACT, in the ACT and 1 or

more other jurisdictions or in 1 or more participating jurisdictions.

(5) The report must not disclose any information that identifies any

suspect or a participant in an authorised operation or that is likely to

lead to a suspect or participant being identified.

(6) This section does not require particulars of an authorised operation to

be included in a report for a year if the operation had not been

completed as at 30 June in that year, but the particulars must instead

be included in the report for the year in which the operation is

completed.

(7) The chief officer must advise the Minister of any information in the

report that, in the chief officer’s opinion, should be excluded from the

report before the report is presented to the Legislative Assembly

because the information, if made public, could reasonably be

expected to—

(a) endanger a person’s safety; or

Compliance and monitoring Part 4 Reporting and record-keeping Division 4.2

Section 29

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(b) prejudice an investigation or prosecution; or

(c) compromise any law enforcement agency’s operational

activities or methodologies.

(8) The Minister must exclude information from the report if satisfied on

the advice of the chief officer of any of the grounds set out in

subsection (7).

(9) The Minister must present a copy of the report to the Legislative

Assembly within 15 sitting days from the day on which the report is

received by the Minister.

29 Keeping documents connected with authorised operation

The chief officer of a law enforcement agency must cause the

following to be kept:

(a) each standard application made by a law enforcement officer of

the agency;

(b) each standard authority granted to a law enforcement officer of

the agency;

(c) each standard amendment application made by a law

enforcement officer of the agency;

(d) each standard amendment of authority granted to a law

enforcement officer of the agency;

(e) each order cancelling an authority granted to a law enforcement

officer of the agency;

(f) each report of a principal law enforcement officer of the agency

under section 24 (1) or section 27.

Part 4 Compliance and monitoring Division 4.2 Reporting and record-keeping

Section 30

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30 General register

(1) The chief officer of a law enforcement agency must cause a general

register to be kept.

(2) The general register is to specify—

(a) for each application under this Act made by a law enforcement

officer of the agency (including an application for amendment

of an authority)—

(i) the date of the application; and

(ii) whether the application was standard or urgent; and

(iii) whether the application was made for a controlled

operation conducted in the ACT, in the ACT and 1 or more

other jurisdictions or in 1 or more participating

jurisdictions; and

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

and

(v) if the application was refused or withdrawn, the date and

time of the refusal or withdrawal; and

(vi) if the authority was amended, the date and time of the

amendment; and

(b) for each authority under this Act granted to a law enforcement

officer of the agency—

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

(ii) whether the authority was standard or urgent; and

(iii) whether the application was made for a controlled

operation conducted in the ACT, in the ACT and 1 or more

other jurisdictions or in 1 or more participating

jurisdictions; and

Compliance and monitoring Part 4 Reporting and record-keeping Division 4.2

Section 30

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(iv) the name, and rank or position, of the person who granted

the authority; and

(v) each relevant offence in respect of which controlled

conduct under the authority was to be engaged in; and

(vi) the period of validity of the authority; and

(vii) if the authority was cancelled, the date and time of

cancellation; and

(viii) the date and time when the authorised operation began and

the date of completion of the operation; and

(ix) the date on which the principal law enforcement officer for

the operation made a report on the operation under section

27; and

(x) if the authorised operation involved illicit goods (to the

extent known)—

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

(B) the route through which the illicit goods passed in the

course of the operation; and

(xi) details of any loss of or serious damage to property, or any

personal injuries, occurring in the course of or as a direct

result of the operation; and

(c) for each amendment of an authority—

(i) the date and time when the amendment was made; and

(ii) whether the amendment was standard or urgent; and

(iii) the name, and rank or position, of the person who made the

amendment.

Part 4 Compliance and monitoring Division 4.3 Inspections

Section 31

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Division 4.3 Inspections

31 Inspection of records by ombudsman

(1) The ombudsman must, from time to time and at least once every

12 months, inspect the records of a law enforcement agency to

determine the extent of compliance with this Act by the agency and

law enforcement officers of the agency.

(2) For the purpose of an inspection under this section, the ombudsman—

(a) after notifying the chief officer of the law enforcement 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

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 chief officer must ensure that members of staff of the agency give

the ombudsman any assistance the ombudsman reasonably requires

to enable the ombudsman to exercise functions under this section.

(4) The ombudsman must give a written report prepared under the

Annual Reports (Government Agencies) Act 2004, on the results of

each inspection under this section in the preceding financial year.

(5) The report must include a report on the comprehensiveness and

adequacy of the records of the agency and the cooperation given by

the agency in facilitating the inspection by the ombudsman of those

records.

Miscellaneous Part 5

Section 32

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Part 5 Miscellaneous

32 Evidence of authorities

(1) A document purporting to be an authority granted under section 10—

(a) is admissible in any legal proceedings; and

(b) in the absence of evidence to the contrary, is proof in any

proceedings (not being criminal or disciplinary proceedings

against a law enforcement officer) that the person who granted

the authority was satisfied of the facts of which he or she was

required to be satisfied before granting the authority.

(2) A document purporting to be an authority within the meaning of a

corresponding law granted under a provision of the corresponding

law that corresponds to section 10—

(a) is admissible in any legal proceedings in the ACT; and

(b) in the absence of evidence to the contrary, is proof in any

proceedings (not being criminal or disciplinary proceedings

against a law enforcement officer) that the person who granted

the authority was satisfied of the facts of which he or she was

required to be satisfied under the corresponding law before

granting the authority.

33 Delegation

(1) Except as provided by this section, and despite any other Act or law

to the contrary, the functions of a chief officer under this Act must

not be delegated to any other person.

(2) A chief officer may delegate to a senior officer of the law enforcement

agency any of the chief officer’s functions under this Act relating to

the authorisation of controlled operations (including the amendment

and cancellation of controlled operations and notifications under

section 24 (2)).

Part 5 Miscellaneous

Section 34

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(3) In this section:

senior officer means a person for the time being holding office as—

(a) in relation to the Australian Federal Police––a deputy chief

police officer; or

(b) in relation to the Australian Crime Commission, any of the

following:

(i) the Director National Operations;

(ii) a Director;

(iii) an office of the Australian Crime Commission that is

prescribed by regulation; or

(c) in relation to the integrity commission––a position of the

integrity commission prescribed by regulation.

34 Regulation-making power

The Executive may make regulations for this Act.

Note A regulation must be notified, and presented to the Legislative Assembly,

under the Legislation Act.

Dictionary

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Dictionary (see s 3)

Note 1 The Legislation Act contains definitions and other provisions relevant to

this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• chief police officer

• function

• integrity commission

• integrity commissioner

• Legislative Assembly

• ombudsman

• territory law

• the Territory.

Australian Crime Commission means the Australian Crime

Commission established by the Australian Crime Commission

Act 2002 (Cwlth).

authorised operation means a controlled operation for which an

authority is in force.

authority means an authority in force under part 2 (Authorisation of

controlled operations).

chief officer means––

(a) in relation to the Australian Federal Police––the chief police

officer; and

(b) in relation to the Australian Crime Commission––means the

chief executive officer of the Australian Crime Commission;

and

(c) in relation to the integrity commission––the integrity

commissioner.

civilian participant, in an authorised operation, means a participant

in the operation who is not a law enforcement officer.

Dictionary

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conduct includes an act or omission.

controlled conduct means conduct for which a person would, apart

from section 18 (Protection from criminal responsibility for

controlled conduct during authorised operation) or section 25 (Mutual

recognition of corresponding authority), be criminally responsible.

controlled operation means an operation that—

(a) is conducted, or intended to be conducted, for the purpose of

obtaining evidence that may—

(i) lead to the prosecution of a person for a relevant offence;

or

(ii) be used in an investigation under the Integrity Commission

Act 2018; and

(b) involves, or may involve, controlled conduct.

corresponding authorised operation means any operation in the

nature of a controlled operation that is authorised by or under the

provisions of a corresponding law.

corresponding authority means an authority authorising a controlled

operation (within the meaning of a corresponding law) that is in force

under a corresponding law.

corresponding law means a law of another jurisdiction that

corresponds to this Act, and includes a law of another jurisdiction that

is declared by regulation to correspond to this Act.

corresponding participant means a person who is authorised by a

corresponding authority to participate in a corresponding authorised

operation.

corrupt conduct—see the Integrity Commission Act 2018, dictionary.

criminal activity means conduct that involves the commission of an

offence by 1 or more people.

illicit goods means goods the possession of which is a contravention

of the law of the ACT.

Dictionary

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investigator—see the Integrity Commission Act 2018, dictionary.

jurisdiction means a State or Territory of the Commonwealth.

law enforcement agency means—

(a) the Australian Federal Police; or

(b) the Australian Crime Commission; or

(c) the integrity commission.

law enforcement officer

(a) means—

(i) for the Australian Federal Police—a police officer; or

(ii) for the Australian Crime Commission—a member of staff

of the Australian Crime Commission; or

(iii) for the integrity commission—an investigator; and

(b) includes a person who is seconded to a law enforcement agency,

including (but not limited to) a member of the police force or

police service, and a police officer (however described), of

another jurisdiction.

law enforcement participant, in an authorised operation, means a

participant in the operation who is a law enforcement officer.

participant, in an authorised operation, means a person who is

authorised under this Act to engage in controlled conduct for the

purposes of the operation.

participating jurisdiction means a jurisdiction in which a

corresponding law is in force.

principal law enforcement officer, for an authorised operation,

means the law enforcement officer who is responsible for the conduct

of the operation.

Dictionary

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relevant offence means—

(a) an offence against an ACT law punishable by imprisonment of

3 years or more; or

(b) an offence against an ACT law that is prescribed by regulation.

standard amendment application—see section 13.

standard amendment of authority—see section 13.

standard application—see section 9.

standard authority—see section 11.

suspect means a person reasonably suspected of—

(a) having committed or being likely to have committed, or of

committing or being likely to commit, a relevant offence; or

(b) having engaged in or being likely to have engaged in, or of

engaging in or being likely to engage in, corrupt conduct.

urgent amendment application—see section 13.

urgent amendment of authority—see section 13.

urgent application—see section 9.

urgent authority—see section 11.

Endnotes

About the endnotes 1

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Endnotes

1 About the endnotes

Amending and modifying laws are annotated in the legislation history and the

amendment history. Current modifications are not included in the republished law

but are set out in the endnotes.

Not all editorial amendments made under the Legislation Act 2001, part 11.3 are

annotated in the amendment history. Full details of any amendments can be

obtained from the Parliamentary Counsel’s Office.

Uncommenced amending laws are not included in the republished law. The details

of these laws are underlined in the legislation history. Uncommenced expiries are

underlined in the legislation history and amendment history.

If all the provisions of the law have been renumbered, a table of renumbered

provisions gives details of previous and current numbering.

The endnotes also include a table of earlier republications.

2 Abbreviation key

A = Act NI = Notifiable instrument

AF = Approved form o = order

am = amended om = omitted/repealed

amdt = amendment ord = ordinance

AR = Assembly resolution orig = original

ch = chapter par = paragraph/subparagraph

CN = Commencement notice pres = present

def = definition prev = previous

DI = Disallowable instrument (prev...) = previously

dict = dictionary pt = part

disallowed = disallowed by the Legislative r = rule/subrule

Assembly reloc = relocated

div = division renum = renumbered

exp = expires/expired R[X] = Republication No

Gaz = gazette RI = reissue

hdg = heading s = section/subsection

IA = Interpretation Act 1967 sch = schedule

ins = inserted/added sdiv = subdivision

LA = Legislation Act 2001 SL = Subordinate law

LR = legislation register sub = substituted

LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced

mod = modified/modification or to be expired

Endnotes

3 Legislation history

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3 Legislation history

Crimes (Controlled Operations) Act 2008 A2008-32

notified LR 18 August 2008

s 1, s 2 commenced 18 August 2008 (LA s 75 (1))

remainder commenced 19 August 2008 (s 2)

as amended by

Freedom of Information Act 2016 A2016-55 sch 4 pt 4.5 (as am by A2017-14 s 19)

notified LR 26 August 2016

s 1, s 2 commenced 26 August 2016 (LA s 75 (1))

sch 4 pt 4.5 commenced 1 January 2018 (s 2 as am by A2017-14 s 19)

Justice and Community Safety Legislation Amendment Act 2017 (No 2) A2017-14 s 19

notified LR 17 May 2017

s 1, s 2 commenced 17 May 2017 (LA s 75 (1))

s 19 commenced 24 May 2017 (s 2 (1))

Note This Act only amends the Freedom of Information Act 2016 A2016-55.

Integrity Commission Act 2018 A2018-52 sch 1 pt 1.6 (as am by A2019-18 s 4)

notified LR 11 December 2018

s 1, s 2 commenced 11 December 2018 (LA s 75 (1))

sch 1 pt 1.6 commenced 1 December 2019 (s 2 (2) (a) as am by A2019-18 s 4)

Integrity Commission Amendment Act 2019 A2019-18 s 4

notified LR 14 June 2019

s 1, s 2 commenced 14 June 2019 (LA s 75 (1))

s 3, s 4 commenced 15 June 2019 (s 2 (1))

Note This Act only amends the Integrity Commission Act 2018 A2018-52.

Endnotes

Amendment history 4

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4 Amendment history

Commencement s 2 om LA s 89 (4)

Relationship to other laws and matters s 7 am A2016-55 amdt 4.7; A2018-52 amdt 1.32

Application for authority to conduct controlled operation s 9 am A2018-52 amdt 1.33

Decision on application for authority s 10 am A2018-52 amdt 1.34, amdt 1.35

Form of authority s 11 am A2018-52 amdt 1.36

Civil liability not incurred s 19 am A2018-52 amdt 1.37

Compensation for property loss or serious damage s 23 am A2018-52 amdt 1.38

Chief officers’ annual reports s 28 am A2018-52 amdt 1.39

Delegation s 33 am A2018-52 amdt 1.40

Dictionary dict am A2018-52 amdt 1.41 def chief officer am A2018-52 amdt 1.42 def controlled operation am A2018-52 amdt 1.43 def corrupt conduct ins A2018-52 amdt 1.44 def investigator ins A2018-52 amdt 1.44 def law enforcement agency am A2018-52 amdt 1.45 def law enforcement officer am A2018-52 amdt 1.46 def suspect sub A2018-52 amdt 1.47

Endnotes

5 Earlier republications

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5 Earlier republications

Some earlier republications were not numbered. The number in column 1 refers to

the publication order.

Since 12 September 2001 every authorised republication has been published in

electronic pdf format on the ACT legislation register. A selection of authorised

republications have also been published in printed format. These republications are

marked with an asterisk (*) in column 1. Electronic and printed versions of an

authorised republication are identical.

Republication No and date

Effective Last amendment made by

Republication for

R1 19 Aug 2008

19 Aug 2008– 31 Dec 2017

not amended new Act

R2 1 Jan 2018

1 Jan 2018– 30 Nov 2019

A2017-14 amendments by A2016-55 as amended by A2017-14

© Australian Capital Territory 2019