(i) the nature and quantity of any illicit goods that will be involved in the controlled operation;
(ii) the foreign countries through which those goods are likely to pass in the course of the controlled operation;
(iii) the place or places at which those goods are likely to be dealt with by an officer of Customs;
(iv) if subparagraph (iii) does not apply—the place or places where those goods are likely to enter into Australia;
(v) the time or times when, and the day or days on which, those goods are likely to be dealt with by an officer of Customs.
(2) An urgent authority must:
(a) state the name and rank or position of the person who granted 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 whether the application was a formal application or an urgent 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 7 days beginning on the day on which the authority was granted; and
(i) specify any conditions to which the conduct of the operation is subject; and
(j) state the date and time when the authority was granted.
(3) A person is sufficiently identified for the purposes of paragraph (1)(e) or (2)(e) if the person is identified:
(a) by an assumed name under which the person is operating; or
(b) by a code name or code number;
as long as the chief officer of the authorising agency for the controlled operation can match the assumed name, code name or code number to the person’s identity.
(4) An authority must not identify persons for the purposes of paragraph (1)(e) or (2)(e) by identifying a class of persons.
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15GL Written record of urgent authority must be issued
If an authorising officer grants an urgent authority, the authorising officer must, within 7 days, issue a written record of the urgent authority that complies with subsection 15GK(2) to the principal law enforcement officer for the controlled operation.
15GM Change of principal law enforcement officer
If an authorising officer in relation to a controlled operation becomes satisfied that the principal law enforcement officer for the controlled operation ceases for any reason to have responsibility for the controlled operation:
(a) the authorising officer may, by instrument in writing, nominate another person as the principal law enforcement officer for the controlled operation; and
(b) with effect from the execution of the instrument or such later time as is specified in the instrument, that other person becomes the principal law enforcement officer for the controlled operation.
15GN Commencement and duration of authorities
(1) An authority to conduct a controlled operation comes into force, and the controlled operation is taken to commence, at the time the authority is granted under section 15GI.
(2) To avoid doubt, an urgent authority is granted when the authorising officer tells the applicant that the urgent authority is granted.
Note: An authority is granted under subsection 15GI(1). Paragraph 15GJ(1)(b) enables an authority to be granted orally in specified circumstances.
(3) An authority (whether formal or urgent) has effect for the period of effect specified in it under paragraph 15GK(1)(h) or (2)(h) unless:
(a) it is cancelled before the end of the period of effect; or
(b) in the case of a formal authority—the period of effect is extended under Subdivision B or C; or
(c) in the case of an integrity testing controlled operation authority—the integrity testing authority concerned (the earlier ITA) stops being in effect under Part IABA (see section 15JJ).
Note: For integrity testing controlled operation authorities, see subparagraph 15GI(2)(a)(ii).
(4) Paragraph (3)(c) does not apply if a further integrity testing authority is granted under Part IABA that continues the effect of the earlier ITA.
Subdivision B—Variation of authorities by appropriate authorising officers
15GO Variation of authority by appropriate authorising officer
(1) An appropriate authorising officer may vary an authority:
(a) at any time on the authorising officer’s own initiative; or
(b) on application under subsection 15GP(1).
(2) A variation may:
(a) extend the period of effect of the authority (subject to subsections (3) and (4)); or
(b) authorise additional persons to engage in controlled conduct for the purposes of the controlled operation and specify:
(i) with respect to additional law enforcement participants—the nature of the controlled conduct that those participants may engage in; and
(ii) with respect to additional civilian participants—the particular controlled conduct (if any) that each such participant may engage in; or
(c) provide that specified persons are no longer authorised to engage in controlled conduct for the purposes of the controlled operation; or
(d) authorise participants in the controlled operation to engage in additional or alternative controlled conduct.
(3) A variation cannot be made that has the effect of extending the period of effect of an urgent authority.
(4) A formal authority must not be varied in such a way that the period of effect of the authority will, after the variation is made, exceed 3 months (including any previous extensions).
(5) An authority must not be varied unless the authorising officer is satisfied on reasonable grounds that the variation will not authorise a significant alteration of the nature of the controlled operation concerned, including an alteration that would change the nature of the criminal offences to which the controlled operation relates.
(6) A variation is not a legislative instrument.
15GP Application to appropriate authorising officer
(1) The principal law enforcement officer for a controlled operation, or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply under this section to an appropriate authorising officer for a variation of an authority in respect of a matter mentioned in subsection 15GO(2).
(2) An application cannot be made under subsection (1) for a variation that would extend the period of effect of a formal authority in such a way that the period of effect of the authority will, after the variation is made, exceed 3 months (including any previous extensions).
(3) An application for the variation may be made:
(a) by means of a written document that is signed by the applicant (such an application is a formal variation application); or
(b) if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the controlled operation to which the authority relates—orally in person, or by telephone or any other means of communication (such an application is an urgent variation application).
(4) More than one application for a variation under this section may be made in respect of the same authority. However, if an urgent variation of authority was granted as a result of an application under this section, the next application must be a formal variation application.
(5) The application (whether a formal variation application or an urgent variation application) must state whether or not the controlled operation has been the subject of an earlier urgent variation application under this section and, if so:
(a) whether the urgent variation application was the last application under this section for a variation; and
(b) whether or not the variation was granted.
(6) If the variation would extend the period of effect of a formal authority, the application (whether a formal variation application or an urgent variation application) must state the proposed period of the extension, which must not exceed:
(a) in the case of a formal variation application—the period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions); and
(b) in the case of an urgent variation application—the lesser of:
(i) 7 days; and
(ii) a period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions).
(7) The authorising officer to whom the application is made may require the applicant to provide such information concerning the proposed variation as is necessary for the authorising officer’s proper consideration of the application.
(8) As soon as practicable after making an urgent variation 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.
15GQ Requirements for variation of authority
(1) After considering an application for a variation of an authority, and any additional information provided under subsection 15GP(7), an appropriate authorising officer:
(a) may vary the authority in accordance with the application, either unconditionally or subject to conditions; or
(b) may refuse the application.
(1A) Despite subsection (1), an appropriate authorising officer must refer an application for a variation of an authority to the Commissioner or a Deputy Commissioner if varying the authority would have the effect that the controlled operation would be a major controlled operation by virtue of paragraph 15GD(2)(a).
(2) An appropriate authorising officer must not vary an authority, whether on application or on the authorising officer’s own initiative, 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 variation; 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 appropriate 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 appropriate authorising officer from varying 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) Despite subsection (2), an appropriate authorising officer (other than the Commissioner or a Deputy Commissioner) must not vary an authority on the authorising officer’s own initiative if doing so would have the effect that the controlled operation would be a major controlled operation by virtue of paragraph 15GD(2)(a).
15GR Manner of varying authority
(1) An authority may be varied by an appropriate authorising officer (whether on application or on the authorising officer’s own initiative) only:
(a) in the case of a variation on the authorising officer’s own initiative or on a formal variation application (other than a variation referred to in subparagraph (b)(ii))—by means of a written document, signed by the authorising officer (such a variation is a formal variation of authority); or
(b) in the case of a variation on:
(i) an urgent variation application; or
(ii) the authorising officer’s own initiative or a formal variation application, if the authorising officer is satisfied that the delay caused by granting a formal variation of authority may affect the success of the controlled operation;
orally in person, or by telephone or any other means of communication (such a variation is an urgent variation of authority).
(2) The authorising officer must, as soon as practicable, prepare and give a written document that complies with section 15GS to the applicant or, if the variation was on the initiative of the authorising officer, to the principal law enforcement officer for the controlled operation.
15GS Form of variation of authority
(1) A variation of an authority by an appropriate authorising officer (whether formal or urgent) must:
(a) identify the controlled operation to which the authority relates; and
(b) state the name and rank or position of the person varying the authority; and
(c) if the authority was varied on an application made under section 15GP, state:
(i) the name of the applicant; and
(ii) whether the application was a formal variation application or an urgent variation application; and
(d) state the date and time when the variation of authority is or was granted; and
(e) describe the variation having regard to the matters referred to in subsection 15GO(2); and
(f) if the variation extends the period of effect of a formal authority—state the period of the extension.
(2) For the purposes of paragraph (1)(f), the period of the extension must not exceed:
(a) in the case of a formal variation of authority—the period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions); and
(b) in the case of an urgent variation of authority—the lesser of:
(i) 7 days; and
(ii) a period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions).
Subdivision C—Variations of authorities by nominated Tribunal member: extensions beyond 3 months
15GT Variation of formal authority to extend period of effect beyond 3 months
(1) A nominated Tribunal member may vary a formal authority on application under subsection 15GU(1).
(2) Subject to subsection (3), a variation may extend the period of effect of the authority.
(3) For the purposes of subsection (2), the period of the extension must not exceed the lesser of:
(a) 3 months; and
(b) a period that would result in the period of effect of the authority exceeding 24 months (including any previous extensions under this Subdivision or Subdivision B).
(4) A nominated Tribunal member may only vary a formal authority during the period of 2 weeks before the end of the period of effect of the authority.
15GU Application to nominated Tribunal member
(1) The principal law enforcement officer for a controlled operation for which there is a formal authority, or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply to a nominated Tribunal member for a variation of the authority that would extend its period of effect:
(a) if the period of effect of the authority is 3 months or more (including any previous extensions); or
(b) in such a way that the period of effect of the authority will, after the variation is made, be 3 months or more (including any previous extensions).