Part 2 Authorisation of controlled operations
Note. Part 3A contains additional provisions relating to cross-border controlled operations.
5 Applications for authorities
(1) A law enforcement officer for a law enforcement agency may apply to the chief executive officer of the agency for authority to conduct a controlled operation on behalf of the agency.(2) An application for an authority may be made:(a) by means of a written document, signed by the applicant, or by means of a facsimile transmission of a document so signed (a formal application), or(b) by such other means as are available, including (but not limited to) orally in person, by telephone or by 2-way radio (an urgent application).(2A) In any application, whether formal or urgent, the applicant must provide the following particulars:(a) a plan of the proposed operation,(b) the nature of the criminal activity or corrupt conduct in respect of which the proposed operation is to be conducted,(c) the nature of the controlled activity in respect of which an authority is sought,(d) a statement of whether or not the proposed operation, or any other controlled operation with respect to the same criminal activity or corrupt conduct, 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,(e) the names and ranks of the law enforcement officers nominated to be the principal law enforcement officer and the secondary law enforcement officer for the proposed operation.(2B) The regulations may make provision for or with respect to the following matters:(a) the circumstances in which an urgent application may be made,(b) the procedure for making an urgent application,(c) the extent to which a chief executive officer is to be satisfied as to the validity of the circumstances in which an urgent application is made,(d) the keeping of records in relation to an urgent application,(e) the form in which a formal application may be made.(3) The chief executive officer may require the applicant to furnish such additional information concerning the proposed controlled operation as is necessary for the chief executive officer’s proper consideration of the application.
6 Determination of applications
(1) After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 5 (3), the chief executive officer:(a) may authorise a law enforcement officer for the law enforcement agency concerned to conduct the operation, either unconditionally or subject to conditions, or(b) may refuse the application.(2) An authority to conduct a controlled operation on behalf of a law enforcement agency may not be granted unless a code of conduct is prescribed by the regulations in relation to that agency.(3) An authority to conduct a controlled operation may not be granted unless the chief executive officer is satisfied as to the following matters:(a) that there are reasonable grounds to suspect that criminal activity or corrupt conduct has been, is being or is about to be conducted in relation to matters within the administrative responsibility of the agency,(b) that the nature and extent of the suspected criminal activity or corrupt conduct are such as to justify the conduct of a controlled operation,(c) that the nature and extent of the proposed controlled activities are appropriate to the suspected criminal activity or corrupt conduct,(d) that the proposed controlled activities will be capable of being accounted for in sufficient detail to enable the reporting requirements of this Act to be fully complied with.(4) In considering the matters referred to in subsection (3), the chief executive officer must have regard to the following:(a) the reliability of any information as to the nature and extent of the suspected criminal activity or corrupt conduct,(b) the likelihood of success of the proposed controlled operation compared with the likelihood of success of any other law enforcement operation that it would be reasonably practicable to conduct for the same purposes,(c) the duration of the proposed controlled operation.(5) (Repealed)
7 Certain matters not to be authorised
(1) An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation:(a) inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged, or(b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant, or any other person, or to result in serious loss or damage to property, or(c) engaging in conduct that involves the commission of a sexual offence against any person.(2) A person must not be authorised to participate in a controlled operation unless the chief executive officer is satisfied that the person has the appropriate skills to participate in the operation.(3) A civilian participant:(a) must not be authorised to participate in any aspect of a controlled operation unless the chief executive officer is satisfied that it is wholly impracticable for a law enforcement participant to participate in that aspect of the operation, and(b) must not be authorised to engage in a controlled activity unless it is wholly impracticable for the civilian participant to participate in the aspect of the controlled operation referred to in paragraph (a) without engaging in that activity.
(1) An authority to conduct a controlled operation may be granted:(a) by means of a written document, signed by the chief executive officer, or by means of a facsimile transmission of a document so signed (a formal authority), or(b) by such other means as are available, including (but not limited to) orally in person, by telephone or by 2-way radio (an urgent authority).(2) An authority, whether formal or urgent:(a) must identify the operation by reference to the plan referred to in section 5 (2A) (a), and(b) must identify the principal law enforcement officer who is the person who is to conduct, and to have responsibility for, the operation, and(b1) must identify the secondary law enforcement officer who is the person who is to conduct, and to have responsibility for, the operation whenever the principal law enforcement officer is unavailable to do so, and(c) must identify each person who may engage in controlled activities for the purposes of the operation, and(d) must state whether or not any such person may operate under an assumed name, and(e) must identify:(i) with respect to the law enforcement participants, the nature of the controlled activities that those participants may engage in, and(ii) with respect to the civilian participants, the particular controlled activities (if any) that each such participant may engage in, and(f) in respect of an urgent authority, must specify the period (not exceeding 72 hours) for which the authority is to remain in force, and(g) in respect of a formal authority, must specify the period (not exceeding 6 months) for which the authority is to remain in force, and(h) must specify any conditions to which the conduct of the operation is subject under section 6 (1) (a).(3) A person is sufficiently identified for the purposes of subsection (2) (b), (b1) 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 reference to documentation kept by the chief executive officer.(4) Unless it sooner ceases to have effect, an urgent authority ceases to have effect 72 hours after it is granted.(5) A chief executive officer who grants an urgent authority must ensure that written notes are kept of the following matters:(a) the date and time when the authority was granted,(b) the identity of the law enforcement officer to whom the authority was granted,(c) the particulars referred to in subsection (2).(6) The regulations may make provision for or with respect to the following matters:(a) the procedure for granting an urgent authority,(b) the keeping of records in relation to an urgent authority,(c) the form in which a formal authority may be granted.
Unless it is sooner cancelled, an authority has effect for the period specified in the authority in accordance with section 8 (2) (f) or (g).
(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 executive officer for a variation of an authority for any one or more of the following purposes:(a) to extend the period for which the authority has effect,(b) to provide for an alternative principal law enforcement officer for the operation,(b1) to provide for an alternative secondary law enforcement officer for the operation,(c) to authorise additional or alternative persons to engage in controlled activities for the purposes of the operation,(d) to authorise participants in the operation to engage in additional or alternative controlled activities.(1A) More than one application for a variation may be made in respect of the same authority, but no single variation may extend an authority for more than 6 months at a time.(1B) An application for a variation of an authority may be made:(a) by means of a written document, signed by the applicant, or by means of a facsimile transmission of a document so signed (a formal application), or(b) by such other means as are available, including (but not limited to) orally in person, by telephone or by 2-way radio (an urgent application).(1C) The regulations may make provision for or with respect to the following matters:(a) the circumstances in which an urgent application may be made,(b) the procedure for making an urgent application,(c) the extent to which a chief executive officer is to be satisfied as to the validity of the circumstances in which an urgent application is made,(d) the keeping of records in relation to an urgent application,(e) the form in which a formal application may be made.(2) The chief executive officer may require the applicant to furnish such information concerning the proposed variation as is necessary for the chief executive officer’s proper consideration of the application.(3) After considering an application for a variation of an authority, and any additional information furnished under subsection (2), the chief executive officer:(a) may vary the authority in accordance with the application, either unconditionally or subject to conditions, or(b) may refuse the application.(4) An authority may not be varied unless the chief executive officer is satisfied that:(a) the success of the operation, or(b) the protection of the health or safety of a participant in the operation or any other person, or(c) the protection of property from loss or damage,can reasonably be expected to require the variation sought by the application.(5) Section 7 applies to an application under this section in the same way as it applies to an application under section 5.(6) A variation of authority may be granted:(a) by means of a written document, signed by the chief executive officer, or by means of a facsimile transmission of a document so signed (a formal variation of authority), or(b) by such other means as are available, including (but not limited to) orally in person, by telephone or by 2-way radio (an urgent variation of authority).(7) Unless it sooner ceases to have effect, an urgent variation of authority ceases to have effect 72 hours after it is granted.(8) A chief executive officer who grants an urgent variation of authority is to ensure that written notes are kept of the following matters:(a) the date and time when the variation of authority was granted,(b) the identity of the law enforcement officer to whom the variation of authority was granted,(c) the terms of the variation.(9) The regulations may make provision for or with respect to the following matters:(a) the procedure for granting an urgent variation of authority,(b) the keeping of records in relation to an urgent variation of authority,(c) the form in which a formal variation of authority may be granted.(10) If an authority to conduct a controlled operation is varied, it is a sufficient defence to criminal or disciplinary proceedings arising from conduct that is engaged in by the defendant in reliance on the authority as in force prior to that variation if the defendant satisfies the court or tribunal before which the proceedings are being heard:(a) that the defendant engaged in the conduct in good faith for the purposes of, and in the course of, the controlled operation, and(b) that, had the authority not been varied, the conduct would have been lawful by operation of section 16, and(c) that the defendant was unaware, and could not reasonably be expected to have been aware, that the authority had been varied.
12 Cancellation of authorities
(1) An authority for a controlled operation may be cancelled by the chief executive officer, by order in writing, at any time and for any reason.(2) Cancellation of an authority for a controlled operation takes effect at the time the order is made or at such later time as may be specified in the order.(3) It is a sufficient defence to criminal or disciplinary proceedings arising from conduct that has been engaged in by the defendant in reliance on an authority that has been cancelled if the defendant satisfies the court or tribunal before which the proceedings are being heard:(a) that the defendant engaged in the conduct in good faith for the purposes of, and in the course of, a controlled operation for which the authority had been in force, and(b) that, had the authority been in force when the defendant engaged in the conduct, the conduct would have been lawful by operation of section 16, and(c) that the defendant was unaware, and could not reasonably be expected to have been aware, that the authority had been cancelled.
While it has effect, an authority for a controlled operation:(a) authorises each law enforcement participant to engage in the controlled activities 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 activities (if any) specified in the authority in respect of that participant.
An application for an 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 procedural defect, other than a defect that affects the substance of the application, authority or variation in a material particular.
13B Functions of secondary law enforcement officer
A function that is conferred on a principal law enforcement officer for an authorised operation under Part 3 or 3A or the regulations is taken to be conferred on the secondary law enforcement officer for the authorised operation whenever the principal law enforcement officer is unavailable to exercise the function.