CRIMES (CONTROLLED OPERATIONS) BILL 2004 Explanatory Memoranda

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CRIMES (CONTROLLED OPERATIONS) BILL 2004

Crimes (Controlled Operations) Bill As Sent Print Victorian Legislation Parliamentary Documents EXPLANATORY MEMORANDUM General This Bill implements national model legislation that was developed by a Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers Council to authorise the use of controlled operations by law enforcement agencies in cross-border investigations. The model was published in November 2003 in the Joint Working Group's report on cross border investigations. This Bill will implement the model laws for cross-border controlled operations. Once other jurisdictions enact the model laws this will mean that an authority for a cross-border controlled operation issued in one jurisdiction will be recognised in other participating jurisdictions. The Bill will also establish a regulatory regime for controlled operations authorised and conducted wholly within Victoria. Clause Notes PART 1--PRELIMINARY Clause 1 sets out the main purposes of the Bill, which are-- · to establish a comprehensive regulatory scheme for authorising, conducting and monitoring controlled operations authorised in Victoria. A controlled operation is a covert investigative method used by law enforcement agencies such as Victoria Police and the Australian Crime Commission during which an undercover officer (and sometimes a civilian) associates with criminal suspects to obtain evidence of offences and during the investigation may need to engage in unlawful conduct; 1 551152 BILL LA AS SENT 7/4/2004

· to recognise controlled operations authorities that have been issued in other jurisdictions that have also enacted the model laws; · to indemnify law enforcement and civilian participants Victorian Legislation Parliamentary Documents in controlled operations against civil liability for conduct engaged in as part of an authorised controlled operation. The Bill also amends the Fisheries Act 1995 and the Wildlife Act 1975 to regulate controlled operations under those Acts, and repeals certain accomplice provisions in other Victorian Acts. Clause 2 provides for the commencement of the Bill. The Bill will commence on a day or days to be proclaimed. The date is open- ended because the cross-border controlled operations provisions cannot commence until other States and Territories enact the cross-border model laws. Also, the Bill confers powers and duties on the Australian Crime Commission and the Commonwealth Ombudsman. To be effective, the Commonwealth Government will need to legislatively consent to the conferral of these powers and duties. Clause 3 defines some of the key words and terms used in this Bill-- "authority" means an authority in force under Part 2 and includes a variation of the authority. An authority is the document that authorises a law enforcement officer to participate in a controlled operation. Part 2 of the Bill sets out how applications are made and determined and the effect of the authority; "chief officer" means the Chief Commissioner of Police or the Chief Executive Officer of the Australian Crime Commission. The functions of the chief officer are delegable to other senior officers. The delegations are set out in Part 5 Division 1 of the Act; "controlled conduct" is defined in detail in clause 7; "controlled operation" is defined in detail in clause 6; There are three types of controlled operation, which are defined in later clauses of the Bill-- Cross-border controlled operation--clause 9. Local major controlled operation--clause 10. Local minor controlled operation--clause 11. 2

"law enforcement officer" means a member of Victoria Police or a member of staff of the Australian Crime Commission. This definition includes police who are on secondment to either Victoria Police or the Australian Crime Commission; Victorian Legislation Parliamentary Documents "principal law enforcement officer" means the officer who is "responsible for" or in charge of the conduct of the operation. (See also clauses 18(3)(b), 21, 25, 34 and 37); "relevant offence" means any offence against Victorian law that is punishable by a maximum term of at least 3 years imprisonment or is prescribed by regulations. The Joint Working Group that prepared the model laws on which this Bill is based recommended that a limited range of offences which fall below the 3 year threshold may be prescribed. They recommended that prescribed offences should be limited to the following categories: child pornography, gaming, fisheries, firearms, prostitution and corruption. Under the model laws, a cross-border controlled operation authority can only be obtained in relation to offences that fall within the definition of "relevant offence". The Bill provides for mutual recognition of cross-border controlled operations. Mutual recognition will mean that a jurisdiction that enacts the model laws will recognise the authorities issued by another participating jurisdiction as if they had been issued in its own jurisdiction. Key definitions for the mutual recognition aspect of the Bill are-- "corresponding authority" means an authority issued under the provisions of a corresponding law relating to a cross-border controlled operation. The mutual recognition provisions in Part 3 Division 3 enable corresponding authorities to be recognised in Victoria as if they had been issued under this Act; "corresponding law" means a law of another jurisdiction that is declared in regulations to correspond to this Act. This process will enable Victoria to recognise as valid the laws of another jurisdiction that implement the model laws. 3

Clause 4 sets out the relationship of this Bill to other Victorian laws. Existing laws in Victoria regulate law enforcement operations where a participant may be authorised to engage in conduct for which he or she would otherwise be criminally liable. Some of Victorian Legislation Parliamentary Documents these existing laws will be repealed (see Part 8), and replaced by the general provisions in Part 1 to 5 of this Bill. Two of the existing laws (section 110A of the Fisheries Act 1995 and section 63 of the Wildlife Act 1975) are dealt with differently (see Parts 6 and 7). The Bill provides for the authorisation and conduct of controlled operations, and provides protection from criminal liability for participants who engage in authorised controlled conduct. However, the Bill is not intended to limit the discretions of a court in proceedings relating to information gathered in a controlled operation authorised under the Bill. For example, the Bill is not intended to affect a court's discretion to admit or exclude evidence (subject to clause 4(3)), or to stay proceedings in the interests of justice. Courts have a general discretion to decide whether to admit or exclude evidence that is obtained illegally. Clause 4(3) provides that a court should not apply its discretion to exclude evidence obtained during a controlled operations solely because it was obtained through the commission of unlawful acts by a participant in a controlled operation provided that the conduct was within the scope of the authority for the operation. Clause 5 provides that the Act will bind the Crown, but does not make the Crown liable for an offence. PART 2--AUTHORISATION OF CONTROLLED OPERATIONS Division 1--Types of Controlled Operations Clause 6 defines "controlled operation". A controlled operation is a covert investigative method used by law enforcement agencies. It involves a participant (a law enforcement officer or a civilian) working undercover (concealing his or her true identity) in order to associate with people suspected of criminal activity. During the operation the officer or civilian may need to engage in unlawful conduct ("controlled conduct"). 4

Clause 7 defines "controlled conduct". During a controlled operation, the participant may need to engage in unlawful conduct. For example, in an operation investigating a drug trafficking syndicate the participant may purchase illegal drugs to gather evidence of drug trafficking. Controlled conduct is this conduct Victorian Legislation Parliamentary Documents which the participant is authorised to engage in and for which, if not for clause 28 (Protection from criminal responsibility for controlled conduct during authorised operations) or clause 35 (Mutual recognition of corresponding authorities) the participant would be criminally responsible. Clause 8 sets out the types of controlled operations that may be authorised under the Bill-- · cross-border controlled operations; · local major controlled operations; · local minor controlled operations. Clause 9 defines "cross-border controlled operation". Sometimes an investigation into criminal activity extends beyond the boundaries of any one jurisdiction. A cross-border controlled operation is a controlled operation that is, will be, or is likely to be conducted in Victoria and one or more other participating jurisdictions and is conducted for the purpose of obtaining evidence that may lead to the prosecution of a person for a relevant offence. A "relevant offence" is defined in clause 3. The definition of cross-border controlled operation includes an operation in respect of a Victorian offence where the operation is conducted wholly in another jurisdiction. A participating jurisdiction is defined in clause 3 as a jurisdiction in which a corresponding law is in force. Clause 10 defines "local major controlled operation". This is a controlled operation conducted wholly within Victoria in respect of a relevant offence (see clause 3 for definition). Clause 11 defines "local minor controlled operation". This is a controlled operation conducted wholly within Victoria in respect of an offence against the law of Victoria with a maximum term of imprisonment of less than 3 years. 5

Division 2--Procedure for Authorising Controlled Operations Clause 12 sets out the procedure to apply for an authority to conduct a controlled operation. There are two types of applications-- Victorian Legislation Parliamentary Documents · "formal application"--in writing and signed by the applicant; or · "urgent application"--orally in person or by telephone, fax, e-mail or any other means of communication. (see clause 18 for the comparable categories of authority). Applications are to be made to the chief officer of the agency. The chief officer may delegate these functions (see Division 1 of Part 5). Any application must provide sufficient information to enable the chief officer to decide whether or not to grant the application. It must also say what type of controlled operation is proposed. It must also provide details of any previous applications and authorities in respect of the operation or the criminal activity to be investigated and, if so, whether the authority was given or varied. The authorising officer may ask for further information about the proposed controlled operation prior to considering the application. An urgent application can be made if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the operation. An urgent application must be followed up by a written record of the application as soon as practicable. Clause 13 provides that after considering the application and any additional information, the chief officer may authorise the operation (this may be subject to conditions) or may refuse the application. The chief officer may delegate these functions (see Division 1 of Part 5). Clause 14 sets out the matters that must be considered by the chief officer when deciding whether or not to grant an authority for a controlled operation. The chief officer must not grant an authority unless satisfied on reasonable grounds of the following matters-- · any unlawful conduct will be limited to the maximum extent necessary to conduct an effective operation; 6

· a controlled operation may involve dealing with illicit goods (see definition in clause 3). The authorising officer must be satisfied on reasonable grounds that the operation will be conducted in a way that will minimise the risk that the illicit goods will be under the control of Victorian Legislation Parliamentary Documents persons other than the law enforcement officers at the end of the operation; · the proposed controlled conduct can be accounted for so that the reporting requirements of Part 4 are complied with; · the controlled operation will not be conducted in a way that would induce a person to commit any offence that they would not otherwise have intended to commit. Civilians can be authorised to participate in a controlled operation in limited circumstances. Clause 14(f) provides that the authorising officer must be satisfied on reasonable grounds that the role given to a civilian is not one that could be adequately performed by a law enforcement officer. For example, the person may speak a language or dialect that is spoken by the persons under investigation but that is not spoken by any available law enforcement officers. There are restrictions on the type of activity that can be authorised. Clause 14(e) provides that a controlled operation cannot be authorised if it will involve any conduct which would-- · seriously endanger the health or safety of any person; or · cause the death of, or serious injury to, any person; or · involved the commission of a sexual offence against any person; or · result in unlawful loss of or serious damage to property (other than illicit goods). Clauses 15, 16 and 17 set out further requirements for each of the different types of controlled operation. Clause 15 sets out further requirements (in addition to those in clause 14) for the granting of an authority to conduct a cross-border controlled operation. 7

Clause 16 sets out further requirements (in addition to those in clause 14) for the granting of an authority to conduct a local major controlled operation. Clause 17 sets out further requirements (in addition to those in clause 14) Victorian Legislation Parliamentary Documents for the granting of an authority to conduct a local minor controlled operation. Clause 17(3) stipulates that an authority for a local minor controlled operation cannot authorise a participant in a controlled operation to engage in unlawful conduct that is an offence punishable by a maximum term of imprisonment of 3 years or more. This ensures that the controlled conduct is proportional to the criminal activity (or suspected criminal activity) that is being investigated. Clause 18 sets out the matters that must be included in an authority for a controlled operation. There are two types of authority-- · "formal authority"--in writing and signed by the chief officer; or · "urgent authority"--orally in person or by telephone, fax, e-mail or any other means of communication. (See clause 12 for the comparable two categories of application). An urgent authority can be granted if the chief officer is satisfied that the delay caused by granting a formal application may affect the success of the operation. Clause 18(2) stipulates that the authorising officer cannot grant an urgent authority for a controlled operation that has been the subject of a previous urgent authority. If an urgent authority is required to extend beyond 7 days, a formal application must be made (see also clauses 12(3) and 19). Clause 18(3) sets out the details which must be included in an authority. The chief officer may delegate functions under this section-- see Division 1 of Part 5. Clause 19 provides for the duration of authorities. The maximum duration of a formal authority for a cross-border or local major controlled operation is 3 months. However, the duration of a cross-border or local major controlled operation can be extended by a variation process (see Division 3 of Part 2). 8

The maximum duration of a formal authority for a minor controlled operation is 7 days. This cannot be extended (see clause 20(2)(a)). The maximum duration of an urgent authority is 7 days. Victorian Legislation Parliamentary Documents This cannot be extended (see clause 20(2)(b)). Division 2--Variation and Cancellation of Authorities Clause 20 sets out when an authority can be varied. The chief officer may vary an authority at any time. The chief officer may also vary an authority if an application is made under clause 21. However, there are restrictions on variations which extend the period of an authority. An authority cannot be varied to extend its period of validity if the authority is-- · for a local minor controlled operation (formal or urgent); or · an urgent authority for a cross-border controlled operation; or · an urgent authority for a local major controlled operation. On the expiry of an urgent authority, another application may be made in respect of the same operation or to investigate the same criminal activity. However, in such a situation the application must be a formal application (see clause 12(3)) and requires a formal authority (see clause 18(2)). The chief officer can grant a variation only if satisfied on reasonable grounds that it will not authorise a significant alteration to the nature of the operation. This is a safeguard against the use of variation applications to authorise entirely new and different operations. If a significant change in the nature of the operation is required, an application for a new controlled operation (rather than a variation of an existing operation) would be necessary. Clause 21 provides that the principal law enforcement officer (or another law enforcement officer on his or her behalf) may apply to the chief officer for a variation of authority for certain listed purposes. These are: to extend the duration of an authority (except for local minor controlled and urgent authorities as provided by section 20(2)); to authorise additional participants to engage in controlled conduct (see clause 7); to authorise participants to engage in alternative controlled conduct; or to identify additional suspects (to the extent known). 9

A variation may be made to extend the period of validity of the authority, but not for more than 3 months at a time. However, as explained in relation to clause 20, some operations cannot have the period of validity extended. Victorian Legislation Parliamentary Documents There are two types of applications for a variation-- · "formal variation application"--in writing and signed by the applicant; or · "urgent variation application"--orally in person or by telephone, fax, e-mail or any other means of communication. An urgent variation application can be made if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the operation. The chief officer may delegate functions under this clause (see Division 1 of Part 5). Clause 22 enables the chief officer to authorise or refuse the variation application (this may be subject to conditions) after considering the application and any additional information. Variation applications are to be treated in the same way as initial applications. The following provisions in relation to initial applications will also apply to a variation application-- · clause 14: Matters to be taken into account--all controlled operations · clause 15: Matters to be taken into account--cross- border controlled operations · clause 16: Matters to be taken into account--local major controlled operations · clause 17: Matters to be taken into account--local minor controlled operations Clause 23 sets out the way in which a variation authority can be given. There are two types of authority for a variation-- · "formal variation of authority"--in writing and signed by the chief officer; or · "urgent variation of authority"--orally in person or by telephone, fax, e-mail or any other means of communication. 10

An urgent variation of authority can be granted if the person varying the authority is satisfied that the delay caused by making a formal variation of authority may affect the success of the operation. Victorian Legislation Parliamentary Documents The chief officer may delegate functions under this clause (see Division 1 of Part 5). Clause 24 sets out the requirements for the form of a variation of authority. Clause 25 provides for the cancellation of authorities. The chief officer may cancel an authority at any time and for any reason. The chief officer may also cancel an authority at the request of the principal law enforcement officer. A cancellation takes effect from the time the order to cancel is made, or at a later time specified in the order. The chief officer may delegate functions under this clause (see Division 1 of Part 5). Division 4--Effect of Authorities Clause 26 describes the effect of an authority for a controlled operation. An authority authorises a participant (whether a law enforcement officer or civilian) to engage in controlled conduct as specified in the authority. Clause 18(3)(h) requires the authority for an operation to identify: if the participant is a law enforcement officer - the nature of the controlled conduct that he or she may engage in; and if the participant is a civilian--the particular controlled conduct that he or she may engage in. An authority for a local major or local minor controlled operation, is valid for controlled conduct in Victoria. If the authority is for a cross-border controlled operation, a participant may engage in controlled conduct in Victoria and in any participating jurisdiction. Clause 18(3)(f) requires the authority to state the participating jurisdictions in which the participant may engage in controlled conduct. Clause 27 provides that applications and authorities are not invalidated by defects, unless the defect materially affects the application or authority. 11

PART 3--CONDUCT OF CONTROLLED OPERATIONS Division 1--Controlled Conduct Engaged in for purposes of Controlled Operations Authorised by Part 2 Victorian Legislation Parliamentary Documents Clause 28 protects a participant who engages in controlled conduct during an authorised operation from criminal responsibility for that conduct. Controlled conduct is conduct which is unlawful. For example, a participant may be authorised to purchase illicit drugs. This is an unlawful activity. However, the effect of clause 28 is that while the controlled conduct remains unlawful in nature, a participant who meets the requirements of clause 28 is not criminally responsible for the offence. This protection from criminal responsibility only applies if certain conditions are met-- · the conduct is authorised by, and is engaged in in accordance with, the authority for the operation; and · the conduct does not involve the participant intentionally inducing another person to commit an offence that the person would not otherwise have intended to commit; and · the participant does not engage in conduct that is likely to cause the death of or serious injury to any person or involve the commission of a sexual offence against any person; and · if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer. While the nature of the activity remains unlawful, as explained above in relation to clause 4(3), when determining the admissibility of evidence the fact that it was obtained by a participant engaging in unlawful activity is to be disregarded if the activity was authorised controlled conduct. Clause 28(2)(a) protects a participant in a local major or local minor controlled operation from criminal responsibility for conduct engaged in by him or her within Victoria. Clause 28(2)(b) protects a participant in a cross-border controlled operation from criminal responsibility for conduct engaged in by him or her in Victoria or in a participating jurisdiction. 12

Clause 28(3) provides that the protection from criminal responsibility for a participant in a local minor controlled operation does not apply if their unlawful conduct constitutes an offence punishable by a maximum term of imprisonment of 3 years or more. Victorian Legislation Parliamentary Documents Clause 29 indemnifies a participant in controlled operation authorised by that agency against any civil liability incurred because of conduct the participant engages in, provided the following requirements are met-- · the conduct is in the course of and for the purposes of the operation and in accordance with the authority; and · the conduct does not involve the participant intentionally inducing another person to commit an offence that the person would not otherwise have intended to commit; and · the participant does not engage in conduct that is likely to cause the death of, or serious injury to, any person or involve the commission of a sexual offence against any person; and · if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer; and · any requirements specified in the regulations. Clause 30 provides that clause 28 (Protection from criminal responsibility for controlled conduct during authorised operations) and clause 29 (Indemnification of participants against civil liability) do not apply to conduct that is, or could have been, authorised under laws relating to criminal investigation. For example, it is unlawful to forcibly enter a person's home and take private property. However, this can be authorised by a search warrant. Clause 30 ensures that this Act cannot be used instead of the relevant search warrant provisions. Clause 31 provides that if an authority is varied or cancelled but a participant is unaware of the variation or cancellation (and is not reckless about the existence of a variation or cancellation), then Part 3 continues to apply as if the variation or cancellation had not been made. If a participant is unaware of a variation or cancellation, and continues to engage in controlled conduct as previously authorised then he or she will still be protected from 13

criminal responsibility (as set out in clause 28) and will be provided indemnity against civil liability (as set out in clause 29). Clause 32 provides protection from criminal responsibility for a person who assists a participant to engage in controlled conduct. Victorian Legislation Parliamentary Documents Because controlled conduct remains unlawful in nature, a person who assists or encourages a participant to engage in that unlawful activity may be liable as an abettor or accessory. For example, a participant may be authorised to purchase illegal drugs. A law enforcement officer who helps the participant to do this by organising the funds may, but for clause 32, be liable for aiding and abetting the illegal purchase of drugs. A person who engages in this "ancillary conduct" will not be criminally responsible if he or she believed that the "related controlled conduct" was authorised for an operation. Division 2--Compensation and Notification of Third Parties Clause 33 provides for compensation to a person who suffers loss or serious damage to property as a direct result of a controlled operation authorised in Victoria. Clause 33 does not apply to a person who was involved in the commission of an offence (unless it is "controlled conduct") or who is a law enforcement officer. These classes of people may have recourse to compensation through other avenues including court action, but cannot claim under this clause. Clause 33 is intended to facilitate claims for compensation for people who suffer property loss or serious damage because of a controlled operation. Provided a person can show that their loss is a direct result of an authorised operation, the State is liable to pay compensation. The amount of compensation will be as agreed between the claimant and the State, or if an agreement cannot be reached then the amount will be determined by a court. Clause 34 requires a principal law enforcement officer to report loss or serious damage to property occurring in the course of, or as a direct result of, an authorised operation to the chief officer of the law enforcement agency as soon as practicable. Given the covert nature of controlled operations, a person who suffers property loss or damage is unlikely to know that the person who caused the loss or damage was a law enforcement officer or a person authorised by a law enforcement agency and that the loss or damage was the direct result of a controlled operation. Therefore, clause 34(2) requires the chief officer to take all reasonable steps to notify the owner. However, the chief 14

officer is not required to notify the owner until he or she is satisfied that notification would not-- · compromise or hinder the authorised operation; or · compromise the identity of a participant in the Victorian Legislation Parliamentary Documents authorised operation; or · endanger the life or safety of any person; or · prejudice any legal proceeding; or · otherwise be contrary to the public interest. The chief officer may delegate functions under this clause (see Division 1 of Part 5). Clause 34(4) requires the principal law enforcement officer to report to the chief officer any personal injury occurring in the course of, or as a direct result of, the authorised operation. Division 3--Mutual Recognition Clause 35 Currently, the use of controlled operations by State and Territory law enforcement agencies is regulated by a patchwork of divergent legislation. There are inconsistencies between jurisdictions and no ability to recognise controlled operations authorities across borders. The adoption of the model laws and mutual recognition of authorities across borders is designed to overcome existing difficulties. Once other States and Territories adopt the model laws, cross- border controlled operations authorities that are issued in Victoria will be recognised in those jurisdictions under provisions that mirror clause 35 of this Bill. Clause 35 also ensures that a corresponding authority issued under a corresponding law of a participating jurisdiction will be recognised in Victoria as if it was issued under this Bill. See clause 3, Definitions, for the meaning of a "corresponding authority", and "corresponding law" and "participating jurisdiction". 15

PART 4--COMPLIANCE AND MONITORING Division 1--Restrictions on Use, Communication and Publication of Information Victorian Legislation Parliamentary Documents Clause 36 creates two offences relating to the unauthorised disclosure of information. A person is guilty of an offence if he or she intentionally, knowingly or recklessly discloses any information relating to an authorised operation or a corresponding authorised operation (with some exceptions). The maximum penalty for this offence is 2 years imprisonment. The second offence is an indictable offence. It will be committed in circumstances where the person intends or knows that, or is reckless as to whether, the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of an authorised operation or corresponding authorised operation. The maximum penalty for this offence is 10 years imprisonment. Division 2--Reporting and Recording-keeping Clause 37 requires the principal law enforcement officer to complete a report on the outcome of an operation within 2 months of the completion of the operation. This clause sets out the details that must be included in the report, these include the date and time the operation commenced and its duration, the type of controlled operation, the nature of the controlled conduct, the outcome of the operation, details of illicit goods and any loss or serious damage to property or any personal injuries occurring as a direct result of the operation. Clause 38 provides that the chief officer of each law enforcement agency (see definition in clause 3) must report each 6 months to the relevant Ombudsman (see definition of "relevant Ombudsman" in clause 3). The report must include details of authorised operations completed during the previous 6 months. Clause 38(2) sets out the details that must be included in each 6-monthly report. These details must be classified into cross-border controlled operations, local major controlled operations and local minor controlled operations (clause 38(3)). Clause 39 requires the relevant Ombudsman to prepare an annual report, as soon as practicable after 30 June each year, on the work and activities of the law enforcement agency under this Act. The Victorian Ombudsman will report on controlled operations conducted by Victoria Police. The Commonwealth Ombudsman will report on the Australian Crime Commission. Both the Victorian Ombudsman and the Commonwealth Ombudsman 16

must give a copy of their report to the Minister and to the chief officer of the law enforcement agency to which the report relates. The report must include comments on the comprehensive and adequacy of the chief officer's 6-monthly reports (clause 38). Victorian Legislation Parliamentary Documents It must not disclose any information that identifies or is likely to identify any suspect or a participant (clause 39(2)) or gives particulars of an authorised operation that is not yet completed (clause 39(6)). The chief officer must advise the relevant Ombudsman of any information that should be excluded from the report if it could reasonably be expected to endanger a person's safety, prejudice an investigation or prosecution or compromise operational activities or methodologies (clause 39(3)). The relevant Ombudsman, if satisfied on these grounds, must exclude the information before tabling the report in Parliament within the timelines set out in clause 39(5). Clause 40 obliges the chief officer to ensure that certain records are kept including controlled operations applications, authorities (including variations), cancellations, written notes and the principal law enforcement officers' reports. These records will form the basis of the 6-monthly report that is submitted by the chief officer to the relevant Ombudsman (see clause 38). They will also assist the relevant Ombudsman to measure the agency's compliance with the requirements of the Act. Clause 41 obliges the chief officer to ensure that a general register is kept of all controlled operations applications and authorities including the details required in clause 41(2). Division 3--Inspections Clause 42 requires the Victorian Ombudsman from time to time and at least once every 12 months to inspect the records of Victoria Police, and the Commonwealth Ombudsman to inspect the records of the Australian Crime Commission, to determine the extent of compliance with this Act. Clause 42(2) sets out the powers of the relevant Ombudsman in relation to these inspections. The outcome of these inspections will be included in the relevant Ombudsman's annual report to Parliament (see clause 39). 17

PART 5--GENERAL Division 1--Delegation Clause 43 provides that the functions of the chief officer under this Act may Victorian Legislation Parliamentary Documents not be delegated except as outlined in this Division. Section 6A of the Police Regulation Act 1958 also sets out powers of delegation in Victoria Police. This clause makes it clear that, in relation to this Act, the delegation powers set out in clause 44 override section 6A of the Police Regulation Act 1958. Clause 44 provides that the chief officer of Victoria Police may delegate his or her functions in relation to the authorisation of controlled operations to other senior officers within Victoria Police. The chief officer can delegate a Deputy Commissioner or Assistant Commissioner to exercise any of the functions relating to the authorisation of all types of controlled operations. The chief officer may also delegate an officer of the rank of superintendent or above to exercise functions relating to the authorisation of local minor controlled operations and notifications under section 34(2). Clause 45 The chief officer of the Australian Crime Commission may also delegate functions under this Act relating to the authorisation of controlled operations to senior officers of the Commission. The definition of "senior officer" is set out in clause 45(2) and is equivalent to the delegations for Victoria Police. Division 2--General Clause 46 enables an authority granted either in Victoria or under a corresponding law of another jurisdiction, to be tendered in evidence in legal proceedings. In absence of evidence to the contrary, the authority will be proof that the person who granted the authority was satisfied of the facts that he or she was required to be satisfied of to grant the authority. Clause 47 is a regulation making power. Regulations may be made to declare a corresponding law, prescribe offences for the purposes of the definition of relevant offence (see definitions of "corresponding law" and "relevant offence" in clause 3), and to prescribe Senior Executive Service positions of the Australian Crime Commission that are to be defined as "senior officer" positions (clause 45(2)). 18

PART 6--FISHERIES ACT 1995 This Part amends the Fisheries Act 1995 regarding controlled operations under that Act to incorporate similar accountability features to those contained in Parts 2 to 5 of this Bill. Victorian Legislation Parliamentary Documents Clause 48 repeals section 110A of the Fisheries Act 1995. Section 110A exempts certain people from criminal responsibility in relation to the offences listed in that section. This section applies to authorised officers or members of Victoria Police acting under instructions of the Secretary to the Department of Primary Industries. The section is repealed and replaced by a new Part 7A. Clause 49 inserts a new Part 7A after Part 7 of the Fisheries Act 1995. The new Part incorporates many of the features of authorisation, monitoring and oversight of controlled operations as set out in Parts 2 to 5 of this Bill. The key differences are that-- · the law enforcement agency will be the Department of Primary Industries; · the fisheries provisions will not have cross-border application; · there will be no distinction between major and minor controlled operations (all operations will be conducted under the same rules); · the provisions will only apply in relation to fisheries offences listed as relevant offences in new section 131A; · the Secretary to the Department of Primary Industries will undertake the role of "chief officer". This role will not be delegable; · the provisions will apply in respect of "authorised officers" under section 4 of the Fisheries Act 1995 and members of the police force; · the definition of "illicit goods" is different and defined in new section 131A; · there is no provision for urgent applications. 19

New section 131A contains a series of definitions related to controlled operations-- "controlled conduct" means conduct engaged in by a participant in an authorised operation which, but for new Victorian Legislation Parliamentary Documents section 131L, would be an offence against the sections of the Fisheries Act 1995 included in the definition of "relevant offence". Controlled conduct is limited to the fisheries offences listed in the definition of "relevant offence"; "law enforcement officer" means an authorised officer as defined under section 4 of the Fisheries Act 1995 or a member of the police force; "relevant offence" means offences against section 36, 37, 40, 42, 44, 67, 68A, 76, 111, 111A to 111C, 114, 116, 119A or 119B of the Fisheries Act 1995 or an offence against the regulations under that Act. An authority to conduct a controlled operation may not be granted unless the Secretary is satisfied on reasonable grounds that a relevant offence has been, is being or is likely to be committed (see new section 131E). New section 131B concerns evidentiary matters. The new Part 7A provides for the authorisation and conduct of controlled operations in relation to fisheries offences, and provides protection from criminal liability for participants who engage in authorised controlled conduct. However, it is not intended to limit the discretions of a court in proceedings relating to information gathered in a controlled operation authorised under this Part. For example, it is not intended to affect a court's discretion to admit or exclude evidence or to stay proceedings in the interests of justice. Courts have a general discretion to decide whether to admit or exclude evidence that is obtained illegally. New section 131B(2) provides that a court should not apply its discretion to exclude evidence obtained during a controlled operation solely because it was obtained through the commission of unlawful acts by a participant in a controlled operation, provided that the conduct was within the scope of the authority. Division 2--Authorisation of Controlled Operations New section 131C contains a similar procedure for making an application for authorities to conduct a controlled operation as is set out in clause 12, except that a provision for urgent applications is not included and the application must be made by the principal law enforcement officer for the operation. 20

New section 131D allows the Secretary to authorise an operation (either unconditionally or subject to conditions) or to refuse the application. New section 131E contains the matters that must be taken into Victorian Legislation Parliamentary Documents account by the Secretary when considering an application for an authority to conduct a controlled operation. The matters that must be considered are similar to the matters set out in clauses 14, 15, 16 and 17, except that the authorities issued under this section cannot authorise controlled conduct outside Victoria; there is no distinction between minor and major controlled operations; and civilians cannot be authorised to participate. The same rules apply for all applications. Authorised controlled conduct is limited to the offences set out in the definition of "relevant offence" in new section 131A. New section 131F contains the details that must be included on the form of the authority. These details are similar to the details required by clause 18, except that they do not refer to urgent applications, cross-border applications or civilian participation. The duration of an authority cannot exceed 3 months. (However, an authority can be varied to extend the duration of an authority (see new section 131H)). Division 3--Variation and Cancellation of Authorities New section 131G enables the Secretary to vary an authority for a controlled operation at any time on the Secretary's own initiative or on application under new section 131H. The Secretary can only grant a variation if satisfied on reasonable grounds that it will not authorise a significant alteration to the nature of the operation. This is a safeguard against the use of variation applications to authorise entirely new and different operations. If a significant change in the nature of the operation is required, an application for a new controlled operation (rather than a variation of an existing operation) would be necessary. New section 131H contains a similar procedure for making an application for a variation of authority as is set out in clause 21, except that a provision for urgent variation applications is not included. No single variation can extend the duration of an authority for more than 3 months at a time (see new section 131H(2)). New section 131I contains the matters that must be taken into account by the Secretary when considering an application for a variation of authority. The matters that must be considered are the same as those that must be considered when determining an initial application (see new section 131E). 21

New section 131J contains the details that must be included on the form of the variation of authority. New section 131K enables the Secretary by order in writing to the principal law enforcement officer to cancel the authority at Victorian Legislation Parliamentary Documents any time and for any reason. The Secretary may also cancel the authority upon request by the principal law enforcement officer. Division 4--Effect of Authorities New section 131L protects from criminal responsibility authorised participants in a controlled operation who engage in controlled conduct in accordance with the authority for the operation. In contrast to clause 28, new section 131L provides protection only in relation to certain offences against the Fisheries Act 1995 (see the definition of "relevant offence" in new section 131A). New section 131M provides that applications and authorities are not invalidated by defects, unless the defect materially affects the application or authority. New section 131N provides similar protection for participants in an authorised controlled operation who are unaware of a variation or cancellation of the authority as is contained in clause 31. New section 131O provides similar protection from criminal responsibility for certain ancillary conduct as is contained in clause 32. Division 5--Notification of Third Parties New section 131P provides similar notification requirements for loss or serious damage to property as is contained in clause 34. (New Part 7A of the Fisheries Act 1995 does not contain an equivalent provision to clause 33 which provides compensation for property or serious damage in certain circumstances). Like clause 34, section 131P also requires the principal law enforcement officer to report any personal injury occurring in the course of or as a direct result of an authorised operation. Division 6--Compliance and Monitoring New section 131Q creates two offences relating to the unauthorised disclosure of information about controlled operations authorised under this Part. These new offences mirror the offences in clause 36. 22

New section 131R requires the principal law enforcement officer to provide a written report to the Secretary within 2 months after the completion of an authorised operation. This new section describes the information which must be included in this report and mirrors the requirements in clause 37. Victorian Legislation Parliamentary Documents New section 131S requires the Secretary to provide reports to the Ombudsman every 6 months. This section sets out the details required and the timing of these reports and is similar to the requirements in clause 38. New section 131T requires the Ombudsman to prepare an annual report on the work and activities of law enforcement officers under this Part and to table this report in Parliament. The section sets out the process for tabling this report and effectively mirrors clause 39. New section 131U requires the Secretary to keep similar documents relating to applications and authorised operations as is required under clause 40. New section 131V requires the Secretary to cause a general register to be kept similar to the requirements in clause 41. New section 131W requires the Ombudsman to conduct similar inspections of the records of the Department as is required in clause 42. Division 7--General New section 131X stipulates that functions or powers of the Secretary under this Part may not be delegated to any other person. New section 131Y enables an authority granted under this Part to be tendered in evidence in legal proceedings under the same conditions as those set out in clause 46(1). New section 131Z provides that an authority may be given under this Part to investigate criminal activity occurring before, on or after the commencement of this Part. PART 7--WILDLIFE ACT 1975 This Part amends the Wildlife Act 1975 regarding controlled operations under that Act to incorporate similar accountability features to those contained in Parts 2 to 5 of this Bill. 23

Clause 50 repeals section 63 of the Wildlife Act 1975. Section 63 exempts certain people from criminal responsibility in relation to the offences listed in that section. This section applies to authorised officers, members of the police force and members of the police force of the Commonwealth or of another State or Territory Victorian Legislation Parliamentary Documents acting under instructions of the Secretary to the Department of Sustainability and Environment. This section is repealed and replaced by a new Part IX. Clause 51 inserts a new Part IX after Part VIII of the Wildlife Act 1975. The new Part incorporates many of the features of authorisation, monitoring and oversight of controlled operations as set out in Parts 2 to 5 of this Bill. The key differences are that-- · the law enforcement agency will be the Department of Sustainability and Environment; · the wildlife provisions will not have cross-border application; · there will be no distinction between major and minor controlled operations (all operations will be conducted under the same rules); · the provisions will only apply in relation to wildlife offences listed as relevant offences in new section 71; · the Secretary to the Department of Sustainability and Environment will undertake the role of "chief officer". This role will not be delegable; · the provisions will apply in respect of "authorised officers" under section 3 of the Wildlife Act 1975 and members of Victorian, Commonwealth and interstate police forces; · the definition of "illicit goods" is different and defined in new section 71; · there is no provision for urgent applications. 24

PART IX--CONTROLLED OPERATIONS Division 1--Introduction New section 71 contains a series of definitions related to Victorian Legislation Parliamentary Documents controlled operations: "controlled conduct" means conduct engaged in by a participant in an authorised operation which, but for new section 74H, would be an offence against the sections of this Act set out in the definition of "relevant offence". Controlled conduct is limited to the wildlife offences listed in the definition of "relevant offence". "law enforcement officer" means an authorised officer as defined under section 3 of the Wildlife Act 1975, a member of the police force or a member of the police force of the Commonwealth or of another State or Territory; "relevant offence" means offences against section 41, 42, 43, 45, 46, 47, 47D, 50, 51 or 76 of the Wildlife Act 1975. An authority to conduct a controlled operation may not be granted unless the Secretary is satisfied on reasonable grounds that a relevant offence has been, is being or is likely to be committed (see new section 74A). New section 72 concerns evidentiary matters. The new Part IX provides for the authorisation and conduct of controlled operations in relation to wildlife offences, and provides protection from criminal liability for participants who engage in authorised controlled conduct. However, it is not intended to limit the discretions of a court in proceedings relating to information gathered in a controlled operation authorised under this Part. For example, it is not intended to affect a court's discretion to admit or exclude evidence or to stay proceedings in the interests of justice. Courts have a general discretion to decide whether to admit or exclude evidence that is obtained illegally. New section 72(2) provides that a court should not apply its discretion to exclude evidence obtained during a controlled operation solely because it was obtained through the commission of unlawful acts by a participant in a controlled operation, provided that the conduct was within the scope of the authority. 25

Division 2--Authorisation of Controlled Operations New section 73 contains a similar procedure for making an application for authorities to conduct a controlled operation as is set out in clause 12, except that a provision for urgent Victorian Legislation Parliamentary Documents applications is not included and the application must be made by the principal law enforcement officer for the operation. New section 74 allows the Secretary to authorise an operation (either unconditionally or subject to conditions) or to refuse the application. New section 74A contains the matters that must be taken into account by the Secretary when considering an application for an authority to conduct a controlled operation. The matters that must be considered are similar to the matters set out in clauses 14, 15, 16 and 17, except that the authorities issued under this section cannot authorise controlled conduct outside Victoria; there is no distinction between minor and major controlled operations; and civilians cannot be authorised to participate. The same rules apply for all applications. Authorised controlled conduct is limited to the offences set out in the definition of "relevant offence" in new section 71. New section 74B contains the details that must be included on the form of the authority. These details are similar to the details required by clause 18, except that they do not refer to urgent applications, cross-border applications or civilian participation. The duration of an authority cannot exceed 3 months. (However, an authority can be varied to extend the duration of an authority (see new section 74D)). Division 3--Variation and Cancellation of Authorities New section 74C enables the Secretary to vary an authority for a controlled operation at any time on the Secretary's own initiative or on application under new section 74D. The Secretary can only grant a variation if satisfied on reasonable grounds that it will not authorise a significant alteration to the nature of the operation. This is a safeguard against the use of variation applications to authorise entirely new and different operations. If a significant change in the nature of the operation is required, an application for a new controlled operation (rather than a variation of an existing operation) would be necessary. New section 74D contains a similar procedure for making an application for a variation of authority as is set out in clause 21, except that a provision for urgent variation applications is not included. No single variation can extend the duration of an 26

authority for more than 3 months at a time (see new section 74D(2)). New section 74E contains the matters that must be taken into account by the Secretary when considering an application for a Victorian Legislation Parliamentary Documents variation of authority. The matters that must be considered are the same as those that must be considered when determining an initial application (see new section 74A). New section 74F contains the details that must be included on the form of the variation of authority. New section 74G enables the Secretary by order in writing to the principal law enforcement officer to cancel the authority at any time and for any reason. The Secretary may also cancel the authority upon request by the principal law enforcement officer. Division 4--Effect of Authorities New section 74H protects from criminal responsibility authorised participants in a controlled operation who engage in controlled conduct in accordance with the authority for the operation. In contrast to clause 28, new section 74H provides protection only in relation to certain offences against the Wildlife Act 1975 (see the definition of "relevant offence" in new section 71). New section 74I provides that applications and authorities are not invalidated by defects, unless the defect materially affects the application or authority. New section 74J provides similar protection for participants in an authorised controlled operation who are unaware of a variation or cancellation of the authority as is contained in clause 31. New section 74K provides similar protection from criminal responsibility for certain ancillary conduct as is contained in clause 32. Division 5--Notification of Third Parties New section 74L provides similar notification requirements for loss or serious damage to property as is contained in clause 34. (New Part IX of the Wildlife Act 1975 does not contain an equivalent provision to clause 33 which provides compensation for property or serious damage in certain circumstances). Like clause 34, section 74L also requires the principal law enforcement officer to report any personal injury occurring in the course of or as a direct result of an authorised operation. 27

Division 6--Compliance and Monitoring New section 74M creates two offences relating to the unauthorised disclosure of information about controlled operations authorised under this Part. These new offences mirror Victorian Legislation Parliamentary Documents the offences in clause 36. New section 74N requires the principal law enforcement officer to provide a written report to the Secretary within 2 months after the completion of an authorised operation. This new section describes the information which must be included in this report and mirrors the requirements in clause 37. New section 74O requires the Secretary to provide reports to the Ombudsman every 6 months. This section sets out the details required and the timing of these reports and is similar to the requirements in clause 38. New section 74P requires the Ombudsman to prepare an annual report on the work and activities of law enforcement officers under this Part and to table this report in Parliament. The section sets out the process for tabling this report and effectively mirrors clause 39. New section 74Q requires the Secretary to keep similar documents relating to applications and authorised operations as is required under clause 40. New section 74R requires the Secretary to cause a general register to be kept similar to the requirements in clause 41. New section 74S requires the Ombudsman to conduct similar inspections of the records of the Department as is required in clause 42. Division 7--General New section 74T stipulates that functions or the powers of the Secretary under this Part may not be delegated to any other person. New section 74U enables an authority granted under this Part to be tendered in evidence in legal proceedings under the same conditions set out in clause 46(1). New section 74V provides that an authority may be given under this Part to investigate criminal activity occurring before, on or after the commencement of this Part. 28

PART 8--CONSEQUENTIAL AND TRANSITIONAL The following provisions will be repealed. In accordance with section 14(2) of the Interpretation of Legislation Act 1984, any person or member who prior to the commencement of this Bill Victorian Legislation Parliamentary Documents acted under relevant instructions will continue to be protected from criminal responsibility for those acts. Clause 52 repeals sections 68(2), 194(5) and 195A(5) of the Crimes Act 1958. Section 68(2) enables certain members of Victoria Police to authorise various persons to commit child pornography offences as part of an investigation. This provision is replaced by the much more comprehensive scheme set out in Parts 1 to 5 of this Bill. Sections 194(5) and 195A(5) provide a defence to a prosecution for certain money laundering offences if the accused was assisting the enforcement of a law of the Commonwealth, a State or Territory. These provisions are also replaced by Parts 1 to 5 of this Bill. Clause 53 repeals section 51 of the Drugs Poisons and Controlled Substances Act 1981. Section 51 is an accomplice provision that enables a member of Victoria Police not below the rank of senior sergeant to authorise certain members and persons to commit offences involving drugs of dependence. This provision is now replaced by Parts 1 to 5 of this Bill. Clause 54 repeals section 2.6.8 of the Gambling Regulation Act 2003. Section 2.6.8 is an accomplice provision that enables a member of Victoria Police of or above the rank of senior sergeant to authorise certain members and persons to commit certain gambling offences. This provision is now replaced by Parts 1 to 5 of this Bill. Clause 55 repeals section 14(2) of the Prostitution Control Act 1994. Section 14(2) is an accomplice provision that enables a member of Victoria Police not below the rank of senior sergeant to authorise certain members and other persons to commit street prostitution offences. This provision is now replaced by Parts 1 to 5 of this Bill. Clause 56 repeals section 58 of the Summary Offences Act 1966. Section 58 is an accomplice provision that enables a member of Victoria Police not below the rank of senior sergeant to authorise certain members or persons to commit offences under that Act. This provision is now replaced by Parts 1 to 5 of this Bill. 29

Clause 57 repeals section 17 of the Vagrancy Act 1966. Section 17 is an accomplice provision that enables a member of Victoria Police not below the rank of senior sergeant to authorise certain members and persons to commit offences under that Act. This provision is now replaced by Parts 1 to 5 of this Bill. Victorian Legislation Parliamentary Documents Clause 58 provides that an authority may be given under this Act to investigate criminal activity occurring before, on or after the commencement of this clause. 30

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