participant in a controlled operation means a person who is authorised under this Part to engage in controlled conduct for the purposes of the controlled operation.
person targeted, in relation to a controlled operation, means the person about whom, as a result of the controlled operation:
(a) it is intended to obtain evidence; or
(b) evidence is being, or has been, obtained.
principal law enforcement officer, for a controlled operation authorised under this Part, means the Australian law enforcement officer specified in the authority to conduct the controlled operation as the officer who is responsible for the conduct of the controlled operation.
serious Commonwealth offence has the meaning given by subsections 15GE(1) and (3).
serious State offence that has a federal aspect has the meaning given by subsection 15GE(4).
staff member of a target agency has the same meaning in relation to that agency as in section 12 of the National Anti‑Corruption Commission Act 2022.
target agency means any of the following:
(a) the ACC;
(b) the Australian Federal Police;
(c) the Immigration and Border Protection Department;
(d) any other Commonwealth agency (within the meaning of the National Anti‑Corruption Commission Act 2022).
urgent application has the meaning given by paragraph 15GH(2)(b).
urgent authority has the meaning given by paragraph 15GJ(1)(b).
urgent variation application:
(a) in relation to an application under subsection 15GP(1)—has the meaning given by paragraph 15GP(3)(b); and
(b) in relation to an application under subsection 15GU(1)—has the meaning given by paragraph 15GU(3)(b).
urgent variation of authority:
(a) in relation to a variation made by an appropriate authorising officer—has the meaning given by paragraph 15GR(1)(b); and
(b) in relation to a variation made by a nominated Tribunal member—has the meaning given by paragraph 15GW(1)(b).
15GD Meaning of controlled operation and major controlled operation
(1) A controlled operation is an operation that:
(a) involves the participation of law enforcement officers; and
(b) is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and
(c) may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory.
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Note: Section 15GN specifies when a controlled operation begins and ends.
(2) A major controlled operation is a controlled operation that is likely to:
(a) involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days; or
(b) continue for more than 3 months; or
(c) be directed against suspected criminal activity that includes a threat to human life.
Note: Section 15GN specifies when a controlled operation begins and ends.
15GE Meaning of serious Commonwealth offence and serious State offence that has a federal aspect
Meaning of serious Commonwealth offence
(1) For the purposes of this Part, serious Commonwealth offence means a Commonwealth offence that:
(a) involves a matter mentioned in subsection (2); and
(b) is punishable on conviction by imprisonment for a period of 3 years or more.
(2) The matters are as follows:
(a) theft;
(b) fraud;
(c) tax evasion;
(d) currency violations;
(e) controlled substances;
(f) illegal gambling;
(g) obtaining financial benefit by vice engaged in by others;
(h) extortion;
(i) money laundering;
(j) perverting the course of justice;
(k) bribery or corruption of, or by, an officer of the Commonwealth, of a State or of a Territory;
(l) bankruptcy and company violations;
(m) harbouring of criminals;
(n) forgery (including forging of passports);
(o) armament dealings;
(p) illegal importation or exportation of fauna into or out of Australia;
(q) espionage, sabotage or threats to national security;
(r) misuse of a computer or electronic communications;
(s) people smuggling;
(t) slavery;
(u) piracy;
(v) the organisation, financing or perpetration of sexual servitude or a sexual offence against a person who is under 18 outside Australia;
(w) dealings in child abuse material;
(x) importation of prohibited imports;
(y) exportation of prohibited exports;
(z) violence;
(za) firearms;
(zb) a matter that is of the same general nature as a matter mentioned in one of the preceding paragraphs;
(zc) a matter that is prescribed by the regulations for the purposes of this paragraph.
(3) Without limiting subsections (1) and (2), an offence against one of the following provisions of the Criminal Code is a serious Commonwealth offence for the purposes of this Part:
(a) Part 5.3 (Terrorism);
(aaa) Part 5.3A (State sponsors of terrorism);
(aa) Division 273A (Possession of child‑like sex dolls etc.);
(b) Subdivision B of Division 471 (Use of postal or similar service for child abuse material);
(c) Subdivision C of Division 471 (Use of postal or similar service involving sexual activity with person under 16);
(d) Subdivision D of Division 474 (Use of carriage service for child abuse material);
(e) Subdivision F of Division 474 (Use of carriage service involving sexual activity with person under 16);
(f) Subdivision HA of Division 474 (Use of carriage service for violent extremist material);
(g) Subdivision HB of Division 474 (Use of carriage service for firearms and explosives manufacture material).
Meaning of serious State offence that has a federal aspect
(4) For the purposes of this Part, serious State offence that has a federal aspect means a State offence that has a federal aspect and that would be a serious Commonwealth offence if it were a Commonwealth offence.
Note: For when a State offence has a federal aspect, see section 3AA.
15GF Meaning of authorising officer etc.
(1) Any of the following is an authorising officer for a controlled operation:
(a) if the operation is a major controlled operation and the investigation of the offence to which the controlled operation relates is within the functions of the Australian Federal Police—the Commissioner or a Deputy Commissioner;
(b) if the operation is not a major controlled operation, but the investigation of the offence to which the controlled operation relates is within the functions of the Australian Federal Police—any AFP authorising officer;
(c) if the investigation of the offence to which the controlled operation relates is within the functions of the ACC—any ACC authorising officer;
(d) if the controlled operation relates to the conduct of a corruption investigation (within the meaning of the National Anti‑Corruption Commission Act 2022)—any NACC authorising officer.
(2) The following are AFP authorising officers:
(a) the Commissioner;
(b) a Deputy Commissioner;
(c) a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this paragraph.
(3) The following are ACC authorising officers:
(a) the Chief Executive Officer of the ACC;
(b) a member of the staff of the ACC who is an SES employee and who is authorised in writing by the Chief Executive Officer of the ACC for the purposes of this paragraph.
(4) The following are NACC authorising officers:
(a) the National Anti‑Corruption Commissioner;
(b) a National Anti‑Corruption Deputy Commissioner (within the meaning of the National Anti‑Corruption Commission Act 2022);
(c) another staff member of the NACC (within the meaning of that Act) who:
(i) is an SES employee; and
(ii) is authorised in writing by the National Anti‑Corruption Commissioner for the purposes of this paragraph.
15GG ART Minister may nominate ART members
(1) The Minister administering the Administrative Review Tribunal Act 2024 (the ART Minister) may, by writing, nominate a person who holds one of the following appointments to the Administrative Review Tribunal to deal with applications under subsection 15GU(1) (which deals with extending authorities for controlled operations beyond 3 months):
(a) Deputy President;
(b) a senior member;
(c) a general member.
(2) Despite subsection (1), the ART Minister must not nominate a person who holds an appointment as a senior member appointed on a sessional basis or a general member of the Tribunal unless the person:
(a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and
(b) has been so enrolled for not less than 5 years.
(3) A nomination ceases to have effect if:
(a) the nominated Tribunal member ceases to hold an appointment described in subsection (1); or
(b) the ART Minister, by writing, withdraws the nomination.
(4) A nominated Tribunal member has, in relation to the performance or exercise of a function or power conferred on a nominated Tribunal member by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
Division 2—Authorisation of controlled operations
Subdivision A—Authorities to conduct controlled operations
15GH Applications for authorities to conduct controlled operations
(1) An Australian law enforcement officer of a law enforcement agency may apply to an authorising officer for an authority to conduct a controlled operation on behalf of the law enforcement agency.
(2) An application for an authority may be made:
(a) by means of a written document signed by the applicant (such an application is a formal application); or
(b) if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the controlled operation—orally in person, or by telephone or any other means of communication (such an application is an urgent application).
(3) Nothing in this Part prevents an application for an authority being made in respect of a controlled operation that has been the subject of a previous application, but in that case the subsequent application must be a formal application.
Note: An urgent authority can be varied, but not so as to extend its duration—see sections 15GO and 15GS.
(4) An application (whether formal or urgent) must:
(a) provide sufficient information to enable the authorising officer to decide whether or not to grant the application; and
(b) state whether or not the proposed controlled operation, or any other controlled operation with respect to the same criminal activity, has been the subject of an earlier application (whether formal or urgent) for an authority or variation of an authority and, if so, whether or not the authority was given or the variation granted; and
(c) state the proposed period of effect of the authority, which must not exceed:
(i) in the case of a formal application—3 months; and
(ii) in the case of an urgent application—7 days.
(5) An authorising officer may require an applicant to provide such additional information concerning the proposed controlled operation as is necessary for the proper consideration of the application.
(6) As soon as practicable after making an urgent application that was not made in writing, the applicant must make a written record of the application and give a copy of it to the authorising officer to whom the application was made.
15GI Determination of applications
(1) An authorising officer may, after considering an application for an authority to conduct a controlled operation, and any additional information provided under subsection 15GH(5):
(a) authorise the controlled operation by granting the authority, either unconditionally or subject to conditions; or
(b) refuse the application.
(2) An authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds:
(a) that either:
(i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or
(ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and
(b) that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation; and
(c) that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and
(d) so far as the conduct involved in the controlled operation is not conducted online—that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and
(e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and
(f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and
(g) that any conduct involved in the controlled operation will not:
(i) seriously endanger the health or safety of any person; or
(ii) cause the death of, or serious injury to, any person; or
(iii) involve the commission of a sexual offence against any person; or
(iv) result in significant loss of, or serious damage to, property (other than illicit goods); and
(h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.
Note 1: Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG).
Note 2: The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and the Immigration and Border Protection Department (see section 15GC).
(2A) To avoid doubt:
(a) paragraph (2)(g) only requires an authorising officer to be satisfied as to the direct and reasonably foreseeable consequences of the unlawful conduct of participants in the controlled operation; and
(b) nothing in subparagraph (2)(g)(iii) is intended to prevent an authorising officer from granting an authority to conduct a controlled operation that will involve a participant:
(i) dealing with material depicting, material describing or material otherwise involving a sexual offence against any person; or
(ii) facilitating a person to deal with such material.
(2B) For the purposes of paragraph (2A)(a), a consequence is a direct consequence of unlawful conduct if the unlawful conduct causes or produces (and is not merely a minor influence on) the consequence without there being any intervening conduct or events.
(3) To avoid doubt, an authorising officer may authorise a particular controlled operation only if he or she is an authorising officer for the controlled operation within the meaning of section 15GF.
(4) An authority granted under this section is not a legislative instrument.
15GJ Manner of granting authority
(1) An authority to conduct a controlled operation may be granted:
(a) in the case of a formal application (other than a formal application referred to in subparagraph (b)(ii))—by means of a written document, signed by the authorising officer (such an authority is a formal authority); or
(b) in the case of:
(i) an urgent application; or
(ii) a formal application, if the authorising officer is satisfied that the delay caused by granting a formal authority may affect the success of the controlled operation;
orally in person, or by telephone or any other means of communication (such an authority is an urgent authority).
(2) Nothing in this Part prevents an authority being granted in respect of a controlled operation that has been the subject of a previous authority, but in that case the subsequent authority must be a formal authority.
Note: An urgent authority can be varied, but not so as to extend its duration—see sections 15GO and 15GS.
15GK Form of authority
(1) A formal authority must:
(a) state the name and rank or position of the person granting the authority; and
(b) identify the principal law enforcement officer for the controlled operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and
(c) state that the application was a formal application; and
(d) identify the nature of the criminal activity (including the relevant suspected offences) in respect of which the controlled conduct is to be engaged in; and
(da) in the case of an integrity testing controlled operation authority—identify the integrity testing authority concerned; and
(e) state the identity of the persons authorised to engage in controlled conduct for the purposes of the controlled operation; and
(f) specify:
(i) with respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and
(ii) with respect to the civilian participants, the particular controlled conduct (if any) that each such participant may engage in; and
(g) identify (to the extent known) the person or persons targeted; and
(h) specify the period of effect of the authority, being a period not exceeding 3 months; and
(i) specify any conditions to which the conduct of the controlled operation is subject; and
(j) state the date and time when the authority is granted; and
(k) identify the following details (to the extent to which they are known and are relevant):